text:
    Barbara Lynn MAKAR v. Youssef N. MAKAR.
    Civ. 2595.
    Court of Civil Appeals of Alabama.
    May 6, 1981.

      Douglas Corretti of Corretti & Newsom, Birmingham, for appellant.
    Charles J. Najjar and Frank M. Bain-bridge, Birmingham, for appellee.
   HOLMES, Judge.

This is a divorce case.

The trial court divorced the parties, made a division of the martial assets, awarded alimony in gross and periodic alimony to the wife, and awarded custody of the parties’ minor child to the husband.

The wife appeals, contending through able and distinguished counsel that the trial court abused its discretion in awarding custody of the child to the husband. She also contends that the court abused its discretion in its award of alimony in gross or division of property and in the amount of periodic alimony. We find no abuse of discretion and affirm.

Viewing the record with the attendant presumptions accorded the trial court’s decree, the following is revealed: The parties were married for approximately five years. They have one child, a daughter, who was twenty months old at the time of trial.

The husband is approximately forty years old. He is a cardiologist. He was born and raised in Egypt. When he was twenty-four he went to England to further his education. He moved to the United States in 1969 and was naturalized in 1978.

The wife is approximately twenty-eight years old. She was born and raised in Alabama. Before she married, she was employed as an x-ray technician. However, she did not work outside the home during the marriage.

After the parties married, the husband agreed to send the wife to college to work toward becoming a doctor. The wife took courses intermittently until about the time she became pregnant. The wife did not return to school after the baby was born in November of 1978.

In February of 1979, the wife took an excessive number of pills in an attempt to kill herself. When the husband was made aware of the wife’s attempt, he took the bottle of pills from her and threw it away.

The husband stayed up with the wife all night, monitoring her condition. The next morning he called the wife’s mother and asked her to come stay with the wife while he went to the office.

The wife’s mother agreed to come. The wife’s sister and her two small children also came. Sometime after they arrived, the wife took a gun and shot herself in the chest.

The wife was taken to the hospital where she underwent surgery for six to seven hours. She was in intensive care for nine days, during which time the husband stayed with her constantly. She was in the hospital for a total of ten weeks.

The evidence shows that the wife had contemplated suicide before she met and married the husband. When she was twenty-one and again when she was twenty-three, the wife considered killing herself. Both times she went so far as to write suicide notes. The wife neither told her family about her difficulties, nor did she seek professional care. She also failed to inform her husband of her previous bouts with depression.

After the shooting incident, and while she was hospitalized, the wife began to receive treatment from Dr. Miree, a psychiatrist. She saw Dr. Miree until July of 1979, at which time she became angry at him and refused to see him again. Dr. Miree expressed great concern at the wife’s refusal to continue psychiatric treatment under any doctor. The wife was not under the care of any psychiatrist until she began seeing Dr. Miree again in December of 1979.

After the husband filed for divorce, the wife began to see another psychiatrist, a Dr. Linton. Dr. Linton knew that the wife was being treated simultaneously by Dr. Miree. On advice of counsel, the wife did not inform Dr. Miree that she was also being treated by Dr. Linton.

At the time of trial, the value of the marital assets over liabilities was about $80,000. The husband’s net after tax income was approximately $50,000.

The trial court awarded the wife $850 per month for two years as periodic alimony. He awarded her $15,000 as alimony in gross or division of property. In addition, the wife was allowed to keep a 1977 Lincoln automobile and ninety-six shares of stock in Brookwood Hospital, as well as certain furniture and a car which she brought into the marriage. The wife also was awarded an attorney’s fee.

I

The primary issue raised by the wife on appeal is whether the trial court abused its discretion in awarding custody of the child to the husband.

As stated above, the wife has made a serious attempt to commit suicide by shooting herself in the chest. The night before she shot herself, she took an overdose of pills. The wife admitted that these were not the first thoughts she had had about suicide; in fact, she had considered it twice before, when she wrote suicide notes and threw them away.

It is clear, from the evidence, that to all concerned a most troubling aspect about the wife’s emotional difficulties is that she appears to be adept at hiding them from those close to her. The wife’s husband and family knew nothing about her previous suicidal thoughts until she was hospitalized. And they didn’t know she was depressed until she took the pills. Both of her psychiatrists testified that it would be dangerous for the wife to continue to conceal her depression from her family and friends.

Dr. Miree stated that long term treatment is imperative for the wife because of the chronicity of her depression. Dr. Linton agreed that continued treatment would be necessary.

There was no evidence produced at trial that the husband is unqualified to raise the child. In fact, the wife testified that he is a loving and attentive father. He has found an older lady who is willing to live in the home and care for the child. This same lady took care of the child while the wife was hospitalized and ill.

The wife argues in brief that unless there is clear and sufficient evidence that the mother is unfit, custody of a child of tender years, especially a female child of tender years, should be granted to the mother. We disagree with this contention, as the “tender years” doctrine is no longer a controlling factor in the determination of custody.

The supreme concern in a child custody dispute is the best interest of the child. Ashley v. Ashley, Ala.Civ.App., 383 So.2d 861 (1980). Although the sex and age of the child are matters to be considered in determining the best, interest of the child, the weight to be given such facts in each case is for the discretion of the trial judge. Jenkins v. Jenkins, Ala.Civ.App., 376 So.2d 1099, cert. denied, Ala., 376 So.2d 1101 (1979).

Another factor to be considered is the emotional and mental health of the mother. See, Quinn v. Quinn, Ala.Civ.App., 351 So.2d 925 (1977). It is not an abuse of discretion to award custody of a child to the husband where the wife has a well-established history of emotional difficulties. Marr v. Marr, Ala.Civ.App., 383 So.2d 194 (1980).

The wife in this case suffers from chronic depression. Although she appeared to be doing well at the time of trial below, her ability to mask her depression is clearly a cause for concern. In any ease, long term psychiatric treatment will be necessary for her.

Under the circumstances, as indicated, the trial court did not abuse its discretion in awarding custody of the child to the husband. In fact, it appears to this court the trial court made the only appropriate decision it could have made.

II

The wife also contends that the trial court erred in its award of alimony in gross or division of property.

The awarding of alimony and the division of property are matters within the discretion of the trial court and a judgment will not be reversed unless it is plainly and palpably wrong. Novak v. Novak, Ala.Civ. App., 339 So.2d 77 (1976).

An award of alimony in gross or property division must depend on the facts in each case; no mathematical formula can determine what is an appropriate award. Goodman v. Goodman, Ala.Civ.App., 366 So.2d 281 (1979). The factors to be considered are: the length of marriage; the source of their common property; the parties’ ages, sex and health; the parties’ future prospects; the parties’ standard of living during their marriage and their potential for maintaining or exceeding that standard after the divorce; and, in appropriate situations, the conduct of the parties with reference to the cause of the divorce. Goodwin v. Goodwin, Ala.Civ.App., 364 So.2d 678 (1978).

As stated above, the parties were only married for about five years. The wife entered the marriage with no material wealth; in fact, she only owned a small amount of furniture when she married. She also had a ear, but owed approximately $3,600 on it.

The wife quit working when she married and the husband provided a living for the parties. Although the wife alleges that the husband ignored her sexually and socially toward the end of the marriage, there is no evidence of marital misconduct on his part.

The wife is still a young woman. She was employed as an x-ray technician before her marriage. She was able to further her education by taking college courses during the marriage. She may very well be capable of rejoining the work force and becoming a productive member of society once more.

The wife in this case was awarded $15,-000 as alimony in gross on division of property. She also received a 1977 Lincoln automobile and ninety-six shares of Brook-wood Hospital stock. In addition, she was allowed to keep the furniture and car which she brought into the marriage.

The value of the marital assets over liabilities at the time of trial was approximately $80,000. The $15,000 award received by the wife is equal to almost twenty percent of the $80,000 net marital assets. With that in mind, along with the length of the marriage and wife’s age and education, we find no abuse of discretion with regard to the award of alimony in gross or division of property.

Ill

The last issue raised on appeal by the wife is whether the trial court abused its discretion in its award of periodic alimony.

There is no fixed standard for determining the proper amount of periodic alimony. Malkove v. Malkove, Ala.Civ.App., 349 So.2d 52 (1977). Future prospects of the parties, their ages, sex, health, and station in life are appropriate factors in determining the amount of periodic alimony. Malkove, supra.

As indicated above, the wife in this case is young. She has a good education and has training and experience as an x-ray technician. Her future prospects could very well be bright.

The husband is forty years old. Although he is a doctor and makes a good salary, he is financially responsible for raising a young daughter.

The wife was awarded $850 per month for two years as periodic alimony. With the above facts in mind and with emphasis on the age, training and education of the wife, we find no abuse of discretion in the periodic alimony award.

However, as indicated, the wife has suffered from serious emotional difficulties. Her illness may greatly affect her future prospects. In fact, it may under appropriate circumstances become necessary to increase and/or extend the periodic alimony payments past the two-year limitation ordered by the trial court. See, Wikle v. Wikle, Ala.Civ.App., 390 So.2d 297 (1980). Although we do not find it necessary to reverse on this ground, we would note that the $850 per month periodic alimony award is subject to modification under appropriate circumstances and upon proper proceedings in the trial court.

This cause is due to be and is hereby affirmed.

AFFIRMED.

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

      . We note that on March 27, 1981, the Alabama Supreme Court in Devine v. Devine, 398 So.2d 686, stated the “tender years presumption represents an unconstitutional gender-based classification .... ” As we understand the supreme court’s opinion in Devine, the criterion in child custody cases is still the “best interest” of the child. Furthermore, considering the factors as indicated by the supreme court in Devine, the trial court in the instant case was eminently correct in awarding custody of the child to the husband.


source: Caselaw Access Project

author: WRIGHT, Presiding Judge.

license: Public Domain

text:
    Sybil Louise POLK v. STATE of Alabama, DEPARTMENT OF INDUSTRIAL RELATIONS.
    Civ. 2596.
    Court of Civil Appeals of Alabama.
    May 6, 1981.
    Gabrielle U. Wehl of Legal Services Corp., Mobile, for appellant.
    George Cocoris, Gen. Counsel, and Harry A. Lyles, Asst. Gen. Counsel, State of Alabama, Dept, of Indus. Relations, Montgomery, for appellee.
   WRIGHT, Presiding Judge.

This is an unemployment compensation case.

The claimant was denied compensation after appeal to the circuit court. Claimant appeals from that denial. The issue is whether, as appellee contends and the trial court obviously found, claimant voluntarily left without good cause and should therefore be disqualified from receiving benefits. § 25-4-78(2), Code of Alabama (1975). We find such contention and finding unsupported by the evidence and reverse.

Sybil Polk is a fifty-four-year-old woman who was employed by Bon Secour fisheries for about ten years. During her employment with Bon Secour she performed many different jobs including deheading, devein-ing and packing shrimp and unloading boats. She “had done everything else in the place except shuck oysters” and in August 1979 approached her supervisor to ask if she could try shucking oysters. Her supervisor agreed and Mrs. Polk went to shucking.

Mrs. Polk worked two or three weeks shucking oysters and was unable to continue due to bursitis in a wrist and elbow. She’d had bursitis for some fourteen years but during her ten years with Bon Secour had been subject to only occasional “flareups.” She testified that she had constant attacks of bursitis while shucking oysters, that shucking irritated her condition and that when an attack would occur her wrist and hand would swell and she could not use her wrist, hand or fingers. She didn’t realize that shucking oysters would bother her until she started, but she couldn’t physically do the job. Her complaints about the job irritating her bursitis stem from having to hold the oyster tight and pry it open with a knife.

After the two or three weeks of shucking she approached her supervisor about returning to her previous job packing shrimp. She testified she explained her problem to the supervisor, was told there was no positions available in her old job and that “he would be calling me.” She had no further contact with Bon Secour, applied for unemployment compensation, had been looking for a job, was available for work and could physically do her old jobs at Bon Secour but “couldn’t shuck oysters.”

Section 25-4-78(2) provides that an individual shall be disqualified for total or partial unemployment compensation where he has left his most recent bona fide work voluntarily without good cause connected with such work. Claimants who voluntarily leave their employment, as Polk did in this case, have the burden of showing a good cause connected with their work for leaving such employment in order to avoid disqualification from receiving benefits. Department of Industrial Relations v. Jaco, 337 So.2d 374 (Ala.Civ.App.1976).

“Good cause” for leaving one’s employment may well be prompted by the claimant’s ill health or physical infirmity where the illness or infirmity results from, is connected with or is caused by the employment. Department of Industrial Relations v. Chapman, 37 Ala.App. 680, 74 So.2d 621 (1954). The evidence presented by the claimant as it pertains to “good cause” is, in substance, that she was physically unable to perform the only job available to her, shucking oysters, because of the aggravation of her bursitis condition resulting from the nature of that job. We find that evidence more than sufficient to satisfy the claimant’s burden in showing “good cause” for leaving connected with her work. See, Department of Industrial Relations v. Henry, 42 Ala.App. 573, 172 So.2d 374 (1964). Medical testimony as to cause and effect between job and injury is not required in order for the claimant to carry the burden of proof when claiming a good cause for leaving employment. State Department of Industrial Relations v. Clark, 369 So.2d 651 (Ala.Civ.App.), cert. denied, 369 So.2d 562 (Ala.1979).

We have reviewed the record most carefully. The appellee’s evidence, in the form of testimony of the claimant’s supervisor, in no way disputed or contradicted the claimant’s evidence as to her reason for quitting work. In light of claimant’s undisputed evidence establishing good cause for leaving connected with her work, the trial court’s judgment denying unemployment compensation benefits must be reversed.

REVERSED AND REMANDED.

BRADLEY and HOLMES, JJ., concur.


author: BRADLEY, Judge.

text:
    Mary V. FARMER v. Archie L. FARMER.
    Civ. 2570.
    Court of Civil Appeals of Alabama.
    May 13, 1981.

      Myron K. Allenstein, Gadsden, for appellant.
    Michael L. Roberts of Floyd, Keener & Cusimano, Gadsden, for appellee.
   BRADLEY, Judge.

This is a divorce case.

The husband filed a complaint seeking a divorce on the ground of incompatibility of temperament and, after a hearing, the court granted the parties a divorce, ordered the marital residence sold and the proceeds divided equally, divided the parties’ personal property, gave Mrs. Farmer one-half of the money in a bank account, i. e. $150.00, and awarded her an attorney’s fee of $750.00. The wife appealed. Her motion for new trial was overruled after the notice of appeal was filed with this court.

The facts show that this marriage lasted ten years. Both parties had been married prior to their marriage. The husband had two children by the former marriage who were adults at the time of the present divorce. The wife had one child, a son, by the former marriage who was still a minor.

Shortly after the parties married, the husband sold his house and the parties purchased a new house. The ownership was joint with right of survivorship.

The evidence is in sharp conflict as to how much money each party contributed to the down payment on the house, which was $20,000.00, but there is evidence in the record to support a finding that each party contributed $10,000.00 to the down payment.

The remaining amount on the purchase price, /. e. $7,000.00 has been paid and the property is debt-free. The testimony was to the effect that the $7,000.00 was paid by monthly payments from a bank account into which the husband’s paycheck and the wife’s son’s social security check had been deposited. Of course, this same bank account was used to pay the other living expenses of the parties.

The husband is employed and earns a take-home pay of about $600 every two weeks. The wife had been unemployed until the parties separated; since the separation she has been working part time in a dry cleaning establishment. The wife says she has back problems and cannot work full time.

Prior to a consideration of the merits, we will decide the husband’s suggestion that the appeal should be dismissed because this court lacks jurisdiction.

The husband says that the appeal was prematurely taken for the reason that the judgment appealed from was not final.

The wife filed a motion for new trial within the authorized time after the decree on the merits and then, before a ruling on the motion was handed down, filed an appeal from the divorce decree. The husband contends that until the motion is decided either by the court or by operation of law, there is no final judgment from which an appeal can be taken. And, since the appeal was taken by the wife from the decree before the court denied her motion for new trial, the appeal was not from a final judgment; hence the appeal was premature.

In Johnson v. Foust, 242 Ala. 659, 7 So.2d 864 (1942) the supreme court said:

We have not failed to take note of the case of Housing Authority v. Abney, 241 Ala. 256, 2 So.2d 428, to the effect that a motion for a new trial timely made ánd continued suspends the finality of the judgment for the purpose of an appeal. In that case the appeal was taken by the party who had not made the motion for a new trial, and while the court held jurisdiction by reason of the motion by his adversary.
In the case of MacMahon v. Dozier, 237 Ala. 574, 187 So. 710, the appeal was taken by the party who had made the motion for a new trial, and we held that jurisdiction was thereby withdrawn from the circuit court to act on the motion for a new trial. The effect being that a movant for a new trial can withdraw or dismiss or discontinue his motion and take an appeal, and that if he appeals without doing so, the effect is to discontinue the motion for a new trial, reinstate the judgment and appeal from it, all in one operation.

In the instant case the wife was not only the appellant but she was also the movant. The effect, therefore, of the wife’s appeal prior to a ruling on her new trial motion was to withdraw from the trial court the authority to rule on her motion. United Insurance Co. of America v. Pounders, 279 Ala. 410, 186 So.2d 125 (1966).

The appeal will not be dismissed but the ruling on the motion for new trial will not be considered.

The wife’s first issue is that she failed to receive an equitable distribution of the proceeds of the sale of the marital home. She also says that the trial court included her separate estate in the property division.

The division of property, after consideration of the equities and contribution by the parties, is a matter for the discretion of the trial court, and will not be disturbed on appeal except upon a showing of palpable abuse. Kirk v. Kirk, Ala.Civ.App., 371 So.2d 54 (1979).

The parties were married for ten years. The evidence shows that when the parties were first married they lived in a house owned by the husband. Later this house was sold and a new one was purchased in the joint names of the parties. The purchase price was $27,000.00; $20,000.00 was paid down and the balance of $7,000.00 was to be paid off in monthly installments.

The evidence is in conflict as to the contribution made by each party to the down payment. The wife testified that she contributed about $7,000 out of her personal funds to the down payment, whereas the husband stated that each one paid $10,000 on the down payment.

The monthly payments on the $7,000.00 balance were made from a checking account into which the husband placed his paycheck for the family living expenses, and the wife’s minor son by another marriage placed his social security check.

The value of the house, at the time of trial was estimated to be between $40,000 and $60,000 and there was no indebtedness outstanding on it.

The trial court ordered the property sold and the proceeds divided equally. We find no error in this aspect of the judgment.

The wife says that she should have been awarded more than fifty percent of the sale proceeds because her separate property, i. e. about $17,000 in cash, was contributed to the purchase of the house. We find this contention unpersuasive. The wife contributed her money towards the purchase of the house as did the husband, they took title in their joint names and they lived in the house during the remainder of their marriage. Certainly this was a contribution to the marriage estate and was subject to distribution by the court and could not be considered as a part of her “separate estate.” See King v. King, Ala.Civ.App., 367 So.2d 492 (1979); Campbell v. Campbell, 51 Ala.App. 295, 285 So.2d 105 (1973).

Finally the wife says that the court erred in not awarding her any periodic alimony.

The decision to award or not to award periodic alimony depends on the relevant facts in each case and is within the discretion of the trial court. Hardwick v. Hardwick, 55 Ala.App. 156, 314 So.2d 76 (1975). The exercise of such discretion will not be reversed except for a plain and palpable abuse. Miller v. Miller, Ala.Civ.App., 361 So.2d 577 (1978).

The facts show that the marriage was of ten years’ duration. The wife received a fair property settlement and she is working part time. She did say, however, that she suffered from back problems. Her minor son lives with her and he receives over $300.00 monthly in social security benefits.

The evidence shows that the wife’s minor son physically attacked the husband and, as a result, the husband left the marital home. The record also shows that after the husband left the house, the wife’s boyfriend moved into the house.

Based on this evidence we are unable to say that the trial court abused its discretion by not awarding the wife periodic alimony.

The judgment of the trial court is affirmed.

AFFIRMED.

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


text:
    Margaret Cothran RANDOLPH v. William Pierce RANDOLPH.
    Civ. 2593.
    Court of Civil Appeals of Alabama.
    May 13, 1981.
    Donald L. Newsom of Corretti & New-som, Birmingham, for appellant.

      Robert R. Kracke of Kracke, Woodward & Thompson, Birmingham, for appellee.
   BRADLEY, Judge.

This is a child custody case.

The parties were married in 1960. The husband attended various universities in the early years of the marriage and finally obtained a PhD in Old Testament in 1970. He is presently a camp director for a Christian education group in Birmingham. The wife has a master’s degree in education and is presently employed as a school counselor in the Birmingham school system. Two children were born as a result of this marriage, a girl now age thirteen and another girl now eleven.

The wife filed for divorce on the grounds of incompatibility of temperament and irretrievable breakdown of the marriage in June 1980. The husband answered by denying the allegations of the complaint. Various motions were filed prior to trial, one of which was a motion to require the parties and the children to submit to a mental examination. This motion was granted. After a hearing in September 1980 the trial court entered a final judgment divorcing the parties and awarding custody of the two daughters to the father with stated visitation rights in the mother.

The wife’s October 1980 motion for new trial was denied and she appeals to this court.

The issue on appeal is whether the trial court abused its discretion in awarding custody of the parties’ two minor children to the father.

It is to be noted that the trial court has wide discretion in ehild custody matters and its judgment will not be reversed except for a plain and palpable abuse of that discretion. Marr v. Marr, Ala.Civ.App., 383 So.2d 194 (1980).

The facts gleaned from the record in the present case show that both parents are employed and that Louise, the older child, is living with her father and Elizabeth, the younger child, is living with her mother.

The father testified that he has a good relationship with his daughters and wanted to be their custodian. He said that he spends as much time with them as his job will permit. The mother also said that she had a good relationship with the children and wanted to be their custodian. She did concede, however, that she had a better relationship with Elizabeth than with Louise. Mrs. Randolph and Elizabeth are presently in a counseling program.

The court-appointed psychiatrist, Dr. Harper, who had previously treated Mrs. Randolph, stated that Mrs. Randolph was diagnosed as having a depressive neurosis in November 1977. Mrs. Randolph was hospitalized and was then seen by Dr. Harper for several months after being released from the hospital.

Dr. Harper next saw Mrs. Randolph in September 1980 along with the two girls and Dr. Randolph as a result of the court order.

Dr. Harper testified that she found no mental illness in Mrs. Randolph but did find her angry and frustrated; Dr. Randolph had no mental problems; Louise did not have a problem; however Elizabeth did have problems. Elizabeth’s trouble seems to relate to the conflict she has with Louise and to the close relationship she has with her mother. Dr. Harper did not believe that the children should be separated. She did suggest, however, that both girls needed counseling regardless of which parent received custody.

Dr. Harper said both parents are fit custodians but did say that if Mrs. Randolph received custody of the children she should receive counseling for her anger.

Based on a thorough analysis of the above recited evidence we are unable to say that the trial court abused its discretion in awarding custody of the two minor children to the father . Its judgment is affirmed.

AFFIRMED.

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


text:
    Lewis CAMPBELL v. SOUTHERN RAILWAY COMPANY, a corporation.
    Civ. 2678.
    Court of Civil Appeals of Alabama.
    May 13, 1981.
    Frank 0. Burge, Jr. and Scott A. Powell, Birmingham, for appellant.
    George M. Van Tassel, Jr. of Sadler, Sa-dler, Sullivan, Sharp & Stutts, Birmingham, for appellee.
   BRADLEY, Judge.

The appeal is from a judgment in favor of plaintiff, Lewis Campbell, for loss of hearing due to noise exposure in the amount of $9,750 and against the defendant, Southern Railway Company, Inc. Campbell contends he received an inadequate verdict due to the admission of hearsay evidence.

Campbell brought his complaint against Southern Railway pursuant to the Federal Employers Liability Act claiming damages for personal injuries sustained while employed by Southern as a signal maintainer in its Brosnan Yard at Macon, Georgia. Campbell contended his hearing was impaired due to high levels of noise experienced while carrying out his duties for Southern.

During the jury trial Southern introduced into evidence a letter from the Federal Railroad Administration which contained results of tests of noise levels at the Bros-nan Yard. Campbell objected to the admission into evidence of the letter on the ground of hearsay. The objection was overruled. Campbell’s motion for new trial, which was overruled, also questioned the admissibility of the letter on the ground that it was hearsay and reduced the amount of his recovery.

The pertinent facts are as follows: Campbell was an employee of Southern Railway in the Brosnan Yard at Macon, Georgia. The purpose of the yard is to form trains to carry cargo. While in the yard the speed of railroad cars is controlled by a device known as a retarder. When these retarders operate by narrowing the space between the tracks, a loud noise occurs. Campbell must at times work on the retarders. Campbell complained that the noise hurt his ears and had damaged his hearing.

As a result of Campbell’s complaints, Mr. Ralph Fussell, chairman of the local union, made complaint through his union to the Federal Railroad Administration in Washington, D. C. Two FRA inspectors were dispatched to the Brosnan Yard where they conducted tests of the noise levels and recorded their findings. Their tests revealed that noise levels were within permissible limits as set out by the Occupational Safety and Health Administration guidelines. These inspectors were later deposed by the parties in this case and their depositions regarding their findings and activities were read to the jury.

The two FRA inspectors apparently reported their findings to Donald W. Bennett, associate administrator for safety of the FRA. Mr. Bennett contacted a union official in Washington, D. C. by letter. A copy of that letter was then sent to Ralph Fussed, the local union chairman. The letter is as follows:

Mr. J. R. Snyder
National Legislative Director
United Transportation Union
400 First Street N.W., Suite 704
Washington, D. C. 20001
Dear Mr. Snyder:
Further reference is made to your letter of October 26, 1976, concerning the high level of car retarder noise at Brosman Yard, Macon, Georgia, Southern Railroad Company.
Our inspector contacted Mr. Ralph Fus-sell who was helpful in our investigation. Noise measurements were made in the conductors’ building for an eight-hour period, using a General Radio sound level meter at the “A” background reading was 62 when no cars were being handled through the retarders and 85 when the speaker was receiving.
During the eight-hour period a total of 161 seconds of noise above a 90 dB(A) level was recorded. This ranged from 12 seconds at 91 dB(A) to 12 seconds at 100 dB(A). No level was reached above 100 dB(A). Using the charts and formulas developed by OSHA, it was determined that the noise level was not in excess of the standards, including the time weighted formula for noise duration at different intensities.
At the time of our investigation it was not possible for the switch foreman in the building to release the retarders manually in all cases. A conference was held with the General Superintendent of Communications and Signals, Southern Railway, concerning the retarders. He stated that the carrier was in the process of installing a new control of the retarders. The retarder will be controlled by the speed of the cars passing through it. If the speed of the cars exceeds nine m. p. h., the retarder will set to slow the cars down. If the speed is less than nine m. p. h., the retarder will be in the release position.
After the installation is completed we will again monitor the operation to see if the duration of the noise level is reduced.
Sincerely,
/s/ Donald W. Bennett
Donald W. Bennett
Associate Administrator for Safety

During the trial the testimony of John Ballantine, an accoustieal engineer, was given as to the results of his tests of the noise levels in the Brosnan Yard and his analysis of the FRA inspectors’ test data contained in their depositions.

Appellant contends that the admission of the letter in question over the objection that it was hearsay was error and prejudi-cially affected the amount of the damages awarded.

To begin we would point out that when an appeal is taken by the winning party any ruling or action by the trial court bearing on the liability and not affecting the amount of damages recovered will not be considered. Anderson v. Kemp, 279 Ala. 321, 184 So.2d 832 (1966).

Although we consider the admission into evidence of the letter in question, which was hearsay, to be erroneous, appellant’s argument is entirely speculative and' fails to sufficiently support his burden of showing both error and palpable injury to a substantial right. Watson v. McGee, Ala., 348 So.2d 461 (1977).

The record shows that the depositions of the two FRA inspectors whose tests produced the data contained in the letter in question were read to the jury. The same information relating to the noise levels in the letter was set out in the depositions but in more detail. Moreover, the unobjected to testimony of John Ballantine contained references to and analyses of the data contained in the FRA inspectors’ depositions. The effect of Ballantine’s testimony was that the test results compiled by the FRA inspectors were not too different from his own and were within the guidelines established by OSHA.

Since the information contained in the letter in question was substantially received elsewhere in the case after a rather detailed cross-examination, we conclude that the substantial rights of Campbell have not been prejudicially affected by such admission. See Hall v. Polk, Ala., 363 So.2d 300 (1978).

AFFIRMED.

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