text:
    H. Conrad FREEMAN, et al. v. Tom PURVIS, Sheriff, etc., et al.
    80-55.
    Supreme Court of Alabama.
    June 12, 1981.

      Mylan R. Engel of Engel & Smith, Mobile, for appellants.
    Leon Kelly, Jr. and Edward L. Hardin, Jr., Birmingham, for appellees.
   BEATTY, Justice.

Appeal from an adverse order in a declaratory judgment action brought by the Mobile County Personnel Board challenging the constitutionality of Act No. 80-797, approved by the Alabama Legislature on May 28, 1980. We affirm the trial court’s order upholding the constitutionality of the Act.

Act No. 80-797 amended Act No. 710 of the 1976 Regular Session. The latter Act, approved on August 24, 1976, was a “bracket bill,” applying in counties with populations of not less than 300,000 nor more than 500,000. Act No. 710 fixed the starting salary of deputy sheriffs in those counties as a sum not less than the starting salary of an Alabama State Trooper, and also provided that deputy sheriffs in those counties were entitled to the same subsistences or allowances as those allowed to a State Trooper. Acts of Ala., Reg. Sess. 1976, Vol. II, p. 990.

Act No. 80-797, utilizing the same population brackets, amended Act No. 710 by establishing minimum compensation levels for deputy sheriffs and others measured by corresponding Trooper pay:

The compensation of all Deputy Sheriff I’s shall not be less than that of a State Trooper with equal time in grade. The compensation of all Deputy Sheriff II’s shall not be less than that of a State Trooper Corporal with equal time in steps within grade. The compensation for all Sheriff’s Sergeants, Lieutenants, Captains, and Majors shall not be less than that of State Trooper Sergeants, Lieutenants, Captains, and Majors with equal time in steps within grade. In no case will this act reduce the compensation for any Sheriff’s Deputy I, Deputy II, Sergeant, Lieutenant, Captain, or Major. Merit increases for any grade will be approved in accordance with Mobile County Personnel Board procedure. All Deputy Sheriff I’s, Deputy Sheriff II’s, Sergeants, Lieutenants or any other grade which may become a part of the Sheriff’s Department shall be paid out of county funds. Sections two, three, four, five and six of Act 710, H. 1102 shall remain unchanged. Provided however that the effective date of this Act shall be October 1, 1980, and further providing that no salary increase enacted by the 1980 Regular Session of the Alabama Legislature for Alabama State Troopers or any other employee of the Alabama Department of Public Safety shall be due or payable to any deputy sheriff or any other employee covered by this Act or by Act 710, H. 1102, Regular Session of the 1976 Alabama Legislature. [Act No. 80— 797, 1980 Acts of Ala., Reg. Sess. 1980, Vol. Ill, p. 1630.]

The petitioners contended that Act No. 80-797 conflicts with several provisions of the Constitution of 1901. Mobile County, the sheriff of Mobile County, and several employees of that county’s sheriff’s department, as intervenors, filed answers to the complaint. The parties entered into a stipulation of facts, and after oral argument the trial court sustained Act No. 797, holding:

1. That Act 710 passed in the 1976 regular session of the Alabama Legislature is declared to be a Local Act under the authority of Peddycoart v. City of Birmingham ...
2. That Act 80-797 passed in the 1980 regular session of the Legislature of Alabama, is a Local Act which amends a local act and is not unconstitutional.
3. That all personnel of the Mobile County Sheriff’s Department who holds [sic] the rank of Deputy Sheriff I, Deputy Sheriff II, Deputy Sheriff Sergeant, Deputy Lieutenant, Deputy Captain, and Deputy Majors are all Deputy Sheriffs within the meaning of Act 710 of the 1976 regular session of the Alabama Legislature and shall be compensated in accordance with the provisions of Act 710 of the 1976 regular session of the Alabama Legislature as amended by Act 80— 797 of the regular session of the Alabama Legislature. . . .

A subsequent order stayed the implementation of Act No. 80-797 pending this appeal which ensued.

The petitioners contend that Act No. 80-797 offends Section 105 of the Constitution of 1901 because it is a local bill operating on a subject already subsumed by a general law, Act No. 710. The argument proceeds in this manner: Act No. 710 was a general Act of local application enacted before the decision reached in Peddycoart v. City of Birmingham, Ala., 354 So.2d 808 (1978); that under Peddycoart Act No. 80-797 is a local law, and because it deals with the same subject matter as that contained in Act No. 710 it violates Section 105.

It is important to recognize what Peddy-coart decided. There this Court was concerned with the interpretation of Section 105:

[N]o ... local law ... shall be enacted in any case which is provided for by a general law....

In construing this language, we pointed out, “we are bound to consider the phrase as one of restraint and limitation pertaining to matters of the same import dealt with in the general law.” And in determining the distinction between a local and a general legislative Act we applied the constitutional definitions literally:

The Alabama Constitution, § 110, defines a general law as one “which applies to the whole state,” and a local law as one “which applies to any political subdivision or subdivisions . . . less than the whole.... ” [Peddycoart, supra, at 811.]

The effect of Peddycoart, of course, was to prospectively prevent the use of population classifications, /. e., “bracket bills,” to govern the nature of the legislation in which they were used. Notwithstanding the presence of those classifications, Ped-dycoart held, if at the time legislation was adopted it applied to any political subdivision less than the whole state it was a local law.

We must point out, however, that following the Peddycoart decision which was released on January 13, 1978, two amendments to the Alabama Constitution of 1901 were ratified by the people: Amendment No. 375, ratified on November 20, 1978, and Amendment No. 389, ratified on November 4, 1980. Because the latter Amendment is pertinent, we quote it here:

Any statute that was otherwise valid and constitutional that was enacted before January 13, 1978, by the legislature of this state and was a general act of local application on a population basis, that applied only to a certain county or counties or a municipality or municipalities of this state, shall not be declared invalid or unconstitutional by any court of this state because it was not properly advertised in compliance with section 106 of this Constitution.
All such population based acts shall forever apply only to the county or counties or municipality or municipalities to which they applied on January 13, 1978, and no other, despite changes in population.
The population based acts referred to above shall only be amended by acts which are properly advertised and passed by the legislature in accordance with the provisions of this Constitution. [Code of 1975 (1980 Cum.Supp. at 51.)]

The effect of this Amendment was to validate all “bracket bills” enacted without advertising before January 13, 1978, the date of the Peddycoart decision, and which were not otherwise unconstitutional. Act No. 710 was a “bracket bill” containing a population classification of “not less than 300,000 nor more than 500,000, according to the last or any subsequent federal census .... ” It provided for the minimum compensation for all deputy sheriffs in counties to which it was applicable. In its effect this statute applied to Mobile County whose 1970 population was 317,308—Official 1970 U. S. Census of Population; Jackson Lumber Co. v. Trammell, 199 Ala. 536, 74 So. 469 (1917). In pre-Peddycoart cases involving instances in which similar statutes were not advertised in compliance with Section 106 of the Alabama Constitution, such statutes, though local in effect, could not be upheld unless they could be construed as “general” as defined in Section 110 of the Constitution. Couch v. Rodgers, 253 Ala. 533, 45 So.2d 699 (1950). That process of interpretation is not required here, however, because Amendment No. 389 has supplied the requirement of notice. Thus we have in Act No. 710 a statute applicable to Mobile County which was a local Act properly advertised. Peddycoart, supra.

Act No. 80 — 797, utilizing the same population brackets, was in fact advertised. Its effect was to apply to Mobile County when it became law, and it complied with the requirements of Section 106. Accordingly, the trial court was correct when it held that Act No. 797 was a local law which amended Act No. 710, a pre-existing local law.

Petitioners also contend that Act No. 80-797 contravenes the provisions of Section 45 of the State Constitution because, it is argued, the title does not fully describe the subject matter of the Act. The Act is also attacked because of the language it contained which retained certain sections of Act No. 710 which it amended. Our examination has disclosed no constitutional infirmity.

The title to Act No. 80-797 announced:

To amend Section 1 of Act No. 710, H. 1102 (1976 Regular Session) (Acts 1976, p. 990) an act providing for the minimum compensation for all Deputy Sheriffs in counties having a population of not less than 300,000 nor more than 500,000 according to the last or any subsequent federal census in the State of Alabama.

It is argued by petitioners that, while the title refers to compensation for deputy sheriffs, the body of the Act provides also for Deputy Sheriffs II, Sheriff’s Sergeants, Lieutenants, Captains and Majors. It also provides for approval of merit increases in grade by the Mobile County Personnel Board procedure.

In the past this Court has given the requirements of Section 45 a liberal interpretation. Knight v. West Alabama Environmental Imp. Auth., 287 Ala. 15, 246 So.2d 903 (1971). In Kendrick v. Boyd, 255 Ala. 53, 51 So.2d 694 (1951), this Court stated:

When there is a fair expression of the general subject of the act in its title, all matters reasonably related to it, including all necessary agencies or instrumen-talities which should facilitate the act’s execution, are proper to be included as being cognate and germane to the title.

The word-description, Deputy Sheriffs, in the title of Act No. 797 was the use of a generic term which included categories of officers in the sheriff’s department. 80 C.J.S. Sheriffs and Constables § 1 at 153 (1953). The other terms, likewise, were reasonably related to the general subject of the Act.

Furthermore, it was not fatal under Section 45 for Act No. 797 to recite: “Sections two, three, four, five and six of Act 710, H. 1102 shall remain unchanged.” Section 45 itself contains this language:

[A]nd no law shall be revived, amended, or the provisions thereof extended or conferred, by reference to its title only; but so much thereof as is revived, amended, extended, or conferred, shall be re-enacted and published at length. [Emphasis added.]

Section 45 does not necessarily require the re-enactment of an entire legislative Act when only one section is to be amended. An amendatory Act publishing at length the section to be amended is sufficient. Henry v. State ex rel. Welch, 200 Ala. 475, 76 So. 417 (1917); Opinion of the Justices, Ala., 357 So.2d 145 (1978). The meaning of the amendatory Act, No. 797, is clear without referring to Act No. 710; consequently the provisions of Section 45 were satisfied.

Finally, we must disagree with the petitioners who contend that Act No. 80-797 repeals the provisions of Act No. 470, 1939 Local Acts, p. 298, which established the Mobile County Civil Service Board. It is true that the terms of Act No. 470 granted authority to the Board to approve both a classification of positions and a pay plan for them. That pay plan, however, in the terms of Act No. 470,

shall include, for each class of positions, a minimum and a maximum rate not inconsistent with such rate or rates as may otherwise in specific instances be fixed by law.. ..

The provisions of Act No. 797 appear to have accomplished what that proviso contemplated when they fixed the mínimums for the deputy sheriff class of positions. Thus Act No. 797 amended Act No. 470 by supplementation without a conflict in its terms.

The order of the trial court upholding the constitutionality of Act No. 797, therefore, must be, and is, affirmed.

AFFIRMED.

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

EMBRY, J., concurs in the result.

      . Amendment 389 refers to statutes “otherwise valid and constitutional.... ” No other constitutional impairment pertaining to Act No. 710 is either suggested by the parties or posed by the case.


source: Caselaw Access Project

author: BEATTY, Justice.

license: Public Domain

text:
    Louise P. PULLEN, as Administratrix of the Estate of Stephen Thomas Pullen, deceased v. CINCINNATI INSURANCE COMPANY, INC., a Corporation.
    80-132.
    Supreme Court of Alabama.
    June 19, 1981.

      Carleton P. Ketcham, Jr., H. L. Ferguson, Jr., and J. Terrell McElheny of Dominick, Fletcher, Yeilding, Acker, Wood & Lloyd, Birmingham, for appellant.
    Edgar M. Elliott and Michael K. Beard of Rives, Peterson, Pettus, Conway, Elliott & Small and William A. Scott, Jr., and Thomas E. Ellis of McDaniel, Hall, Parsons, Con-erly, Scott & Lusk, Birmingham, for appel-lee.
   BEATTY, Justice.

Appeal by defendant Louise P. Pullen, as administratrix, from an adverse judgment rendered in a declaratory judgment action brought by plaintiff Cincinnati Insurance Company and in which State Farm Fire and Casualty Company is intervenor. We affirm in part, reverse in part, and remand.

In December 1975 Cincinnati issued a policy of insurance to the City of Homewood for a three-year period. This policy was a “Comprehensive Property and Casualty Insurance Policy.”

In January 1976 Cincinnati issued a policy of insurance to the Homewood Board of Education, also for a three-year period. This policy contained “Owners’, Landlords’ and Tenants’ Liability Insurance.”

Both policies contained the same definition of the persons insured:

Each of the following is an insured under the insurance to the extent set forth below:
(c) If the named insured is designated in the declarations as other than an individual, partnership, or joint venture, the organization so designated and any executive officer, director or stockholder thereof while acting within the scope of his duties as such;

Each policy also provided that Cincinnati agreed to “pay on behalf of the insured all sums which the insured shall become legally obligated to pay ... [and] to defend any suits against the insured.”

Earl B. Lawley, a resident of Homewood, was employed by the Homewood Board of Education on June 8, 1970, and on November 14,1978 he was the building supervisor, or engineer, for Homewood High School. His position also required him to be on call for service at four other Homewood schools. He was responsible for the maintenance and upkeep of the football.stadium located at West Homewood, and he also was construction consultant to the Board of Education. In his capacity as building engineer at Homewood High School, Lawley was supervisor of the maintenance staff at that school building and had management responsibility over the maintenance staffs of the other schools. Lawley apparently had authority to enter into contracts with others for the Board in connection with his maintenance responsibilities, and in emergency situations he was allowed to act for the Board. On some occasions he attended Board meetings to give information involving building contracts and architectural services.

In addition to Lawley’s functions as building superintendent, his duties for the Board also included the security of property and persons in and about the Homewood school system. Thus he had directed traffic on occasion, and sometimes aided in resolving security problems with persons coming onto school property without authority. The record discloses instances in which Lawley performed security and maintenance duties on South Lakeshore Drive, a public road leading to Homewood High School (the only road leading to the school) and which were, in fact, off of school property.

The record also establishes that shortly after the school building was occupied in January 1973 the principal of Homewood High School called upon the City of Home-wood to provide security for the school property and for the safety of the schoolchildren. According to the then principal, Mr. Gross, the city officials considered the school property to be private property outside the city limits and, therefore, did not provide the needed protection. Gross and Lawley subsequently visited the mayor of Homewood and its chief of police. As a result of this visit Gross and Lawley were issued a badge and an ID card which identified each of them as a special policeman for the City of Homewood. The school purchased handcuffs for them, and the Home-wood Police Department issued them traffic accident report forms to be used in connection with investigations of accidents on or near the school premises.

Mr. Gross left the position of principal of Homewood High School during 1978 to become Superintendent of Education for the City Board of Education. At the time he departed he possessed a pistol which he had kept, for security, in a desk drawer at the school. When he cleaned out his desk upon his departure he asked Lawley to keep the weapon for him.

On November 14,1978, Lawley arrived at Homewood High School at approximately 6:55 a. m. Shortly thereafter a guidance counselor at the school, Mrs. Charlotte Gibson, requested him to check on a person down on South Lakeshore Drive who was acting strangely. At that time teachers and school children were proceeding to school via that road. Lawley went out the road in a pickup truck assigned to him by the Homewood Board of Education and which bore a municipal license plate, a truck which normally he took to and from work. When he arrived at a point approximately one hundred yards from the school property, in an area used as an access to the school, Lawley came upon a young man walking in small circles in the middle of the road. Traffic continued on by leaving the roadway. Lawley pulled up beside the man, rolled his door window down, and asked if he could help him. Hearing no reply, Lawley asked for identification, and the young man then, in return, asked for Lawley’s identification. At that point the young man was about one or two feet from the truck and was standing still. Lawley showed him his badge, and when the other had stated that it wasn’t good enough, Lawley handed him his ID card. The man looked it over and handed it back to Law-ley, stating that it wasn’t good enough either. According to Lawley, as he was placing his card into his wallet the young man struck him on the side of his face with his fist. Lawley then leaned over to get a pair of handcuffs from the glove compartment as the young man continued to strike at him and attempted to open the truck’s door. The pistol (turned over to him by Gross) was at that time lying on the seat. Lawley opened the door on the driver’s side and got out of the truck, holding the pistol in his right hand and the handcuffs in his left, being struck in the chest as he got out. Lawley asked the man to place his hands on the side of the truck, but his assailant grabbed the hand with the handcuffs and was pulling on it. Using the pistol in club fashion, Lawley made a striking motion toward the man. The pistol went off. The other man, Stephen T. Pullen, said he had been shot, stopped fighting, and with Law-ley’s help went to the side of the road where he sat down. A short time later he was taken to a hospital where he died.

This action by Cincinnati sought a determination of liability coverage questions and an injunction against Louise P. Pullen from continuing a wrongful death action she had filed against Lawley, the City of Home-wood, and the Homewood Board of Education. The trial court entered no order on that aspect of those proceedings because the parties agreed not to pursue it pending resolution of the coverage questions. State Farm was allowed to intervene in order to determine whether Lawley was entitled to coverage under a homeowners policy issued to him by State Farm.

Following a hearing the trial court rendered a judgment in which it found no coverage to exist under either of the policies. Under the Cincinnati policies, the court found that Lawley did not qualify as an “insured” and that the “occurrence” made the basis of the wrongful death action did not take place in connection with “insured premises” as defined by one of those policies. The court found that no coverage was afforded under State Farm’s homeowners policy (1) because of a failure to provide notice, and (2) because the event arose out of a business pursuit and thus was excluded under the terms of that policy.

The paramount issues are, therefore, whether Lawley was an “insured” and whether the shooting incident was an “occurrence” in connection with “insured premises,” under the Cincinnati policies; and, under State Farm’s homeowners policy, whether the shooting incident arose out of a business pursuit and was therefore excluded, and if not, whether there was a failure of notice to the company as required by the policy.

I.

Was the “occurrence” in connection with the “insured premises”? That term is defined in the policy:

“insured premises” means (1) the premises designated in the declarations, ... and includes the ways immediately adjoining such premises on land.

The testimony amply establishes that the way on which the incident occurred was one immediately adjoining the school premises. Both Lawley and Gross testified to that fact. The point on South Lakeshore Drive where it took place was variously described as being within a hundred yards of the ground owned by the high school and about two tenths of a mile from a chain link fence located 50 to 60 feet west of the actual boundary line. Gross and Lawley testified to the “connection” of Lawley’s presence there:

[From Mr. Lawley’s testimony:]
Q Were you in about your employment at the time you went out to investigate this occurrence?
A Yes, sir.
Q Was that part of your duties and responsibilities as an employee of the City Board of Education?
A As I understood them, yes, sir.
[From Mr. Gross’s testimony:]
Q And, certainly in the performance of his duties on that morning as you understood it, Mr. Lawley was carrying out his duties as an employee of Homewood—
MR. ELLIS: I object. Calls for a conclusion.
THE COURT: He can ask if he knows.
Q Was he not?
A Yes.
Q He was about his business for the City at the time?
A Yes.
MR. SCOTT: We object to the words City—
MR. ELLIOTT: City Board of Education. I’m sorry. I did not mean City.
A Yes.

Cincinnati insists that the altercation did not occur in connection with school operations or incidental to them, citing Lawley’s testimony that he “approached him as a human to another human to see, may I help you.”

Lawley’s entire testimony on this point was:

Q All right, sir. When the lady stopped, it was just a teacher there that stopped and said something to you about it?
A Yes, sir, a counselor.
Q And, that was inside the gate, was it not, of the high school?
A Right near the school, yes, sir.
Q All right, sir. And, all she said to you, there is a fellow down the road acting strangely?
A That I should go check on it or something to that effect.
Q That you should go. Are you commonly required in your job to follow the instructions of teachers?
A No, sir.
Q You can do it or not do it?
A I suppose so. I never thought about it that way.
Q But, when she indicated that this fellow was down the road, she didn’t indicate he was on any school property; did she?
A No, sir.
Q And, you, thinking in mind who she was talking about, you knew he wasn’t on school property; didn’t you?
A No, sir. I didn’t know he was not on school property. In fact, I didn’t know he was not on school property legally or technically until about three or four months ago when he had the property surveyed and I determined where the school lines were.
Q Did you think the property of the Homewood High School covered every inch of South Lakeshore Drive?
A No, sir, I knew it did not, but I didn’t go out to do anything to the man. I went to help a person I thought was in trouble.
Q All right, sir. And, when you went down there and stopped, the first thing you said to the fellow — he’s standing in the middle of the road?
A He’s not standing. He’s doing small circles in the middle of the street.
Q Is he bothering anybody?
A No, sir.
Q Is he stopping anybody?
A He’s not stopping. He’s hindering traffic.
Q He’s hindering traffic?
A Flow of traffic.
Q All right, sir. When you stopped then with him hindering the traffic on South Lakeshore Drive but when you say he’s hindering traffic, do you mean he was creating some kind of hazard out there?
A He’s causing traffic to slow and leave the roadway. Now, is that a hazard or not?
Q I’m asking what you thought about it. Did you think he was?
A I thought he was causing traffic to slow and leave the roadway. I didn’t classify—
Q Did you think he was endangering any teachers or students coming onto the property?
A At what point?
Q At the time you pulled up and saw him?
A No, sir.
Q So, when you stopped there, all you said was, can I help you; right?
A May I help you or can I help you or words to that effect.
Q You never did say to that man, I’m a police officer and you are not supposed to be in the middle of the road?
A I didn’t approach him as a police officer.
Q All right, sir.
A I approached him as a human to another human to see, may I help you.
Q Would that be true the whole time you were out there, please, sir, that you were just out there as one human to another?
A That was the basic reason for going, yes, sir.
Q All right, sir. And, you didn’t go out there to arrest him?
A No, sir.

Based upon the scope of Lawley’s responsibilities as the record establishes them, together with the testimony of Superintendent Gross and Lawley himself, the evidence clearly establishes that Lawley was upon a way immediately adjoining the insured premises and was “in connection” with those premises. Indeed, the mere fact that Lawley’s setting out to investigate the counselor’s report was accompanied by humanitarian motives did not mitigate his actual authority given to him by the school board or otherwise indicate a lack of accompanying concern for school security.

II.

Was Lawley an “insured” under the insurance policy issued by Cincinnati to the Homewood Board of Education?

As shown earlier, each policy defined the “insured” as “... the organization so designated and any executive officer, director or stockholder thereof while acting within the scope of his duties as such; ...” Thus, insofar as individual insureds are concerned, Cincinnati insists that only executive officers, directors, and stockholders are granted coverage by that language.

Cincinnati urges upon us the terms of Code of 1975, §§ 16-11-5 and -6 and 16-12-3, which provide for the election of city school board members and officers. Under those statutes the offices of president, vice-president and treasurer are provided for, and the city board is required to appoint a city superintendent who “shall be the chief executive officer” of the board. The existence of. these provisions, however, does not satisfy questions concerning the application of the coverage provisions to these facts. The insuring clause applies only to executive officers, /. e., the superintendent, an official referred to in § 16-12-3. Those statutes do not authorize the appointment or election of directors or stockholders. Under Cincinnati’s argument, therefore, only the city superintendent is an insured under the policy.

We cannot approve such a hyper-technical interpretation. See Alabama Farm Bureau Mutual Casualty Ins. Co. v. Presley, Ala.Civ.App., 384 So.2d 122 (1980). It is apparent that Cincinnati has utilized a description of the “insured” which is appropriate to the common corporate organization, but which is not appropriate to the usual form of an Alabama school board. The terms of the definition of “insured” obviously denote an intention to extend coverage to the school board, and, in addition, to those who hold executive and managerial positions. This position is in accord with that taken by this Court in Wolsey v. Aetna Casualty and Surety Co., Ala., 346 So.2d 952, 953 (1977), which involved the application of the same definition of persons insured as this policy. In Wolsey we held that a foreman who was also a welder, paid by the hour, having no authority to make policy or contracts on his commercial company’s behalf, was not an “executive officer” under the meaning of that term of the policy. Lawley’s office under the school board is quite different, however. Lawley, a salaried employee, filled a position created by resolution of the board, possessed managerial discretion and authority over employees in several schools, had duties ranging beyond engineering maintenance, possessed authority to modify contract terms, was involved to some extent in furnishing information used by the school board in shaping construction policies, and in emergencies had authority to alter specified school policies. His relationship with the school board clearly placed him within the class of persons to whom coverage was extended. See Annot. 39 A.L.R.3d 1434. Accordingly, the trial court was palpably wrong when it found that Lawley was not an insured and that the occurrence did not take place in connection with the premises of insured (school).

III.

Was Lawley an “insured” under the insurance policy issued by Cincinnati to the City of Homewood?

The contention that Lawley was an “insured” under Cincinnati’s policy issued to Homewood arises from the undisputed fact that he was appointed a special police officer by the mayor and chief of police, and given an identification card and badge so designating him. The ID card bore his photograph, his signature, and the signatures of the mayor and chief of police. Beginning at the top of this card large print stated:

CITY OF HOMEWOOD

ALABAMA

DEPARTMENT OF POLICE

[typed] Earl B. Lawley

IS A SPECIAL POLICE OFFICER

The reverse side of this card contained a description of Lawley’s physical characteristics and his thumbprints. The metal badge bore an imprint of the Alabama state seal. Above the seal were the prominently imprinted words “SPECIAL POLICE” and below the seal, also prominently imprinted, were the words “HOMEWOOD, ALA.” The record discloses that these indicia of position were almost identical to those furnished to regular police officers.

The threshold question here is whether any police officer is an insured under this definition:

If the named insured is designated in the declarations as other than an individual, partnership or joint venture, the organization so designated and any executive officer, director or stockholder thereof while acting within the scope of his duties as such.

Again, we must take note that this policy language is more appropriate to a commercial enterprise than to a municipal corporation, and so we are required to construe it according to the intentions of the contracting parties, Smith v. Kennesaw Life and Accident Ins. Co., 284 Ala. 12, 221 So.2d 372 (1969), giving it a rational and practical construction. Alabama Farm Bureau Mutual Casualty Ins. Co. v. Preston, 287 Ala. 493, 253 So.2d 4 (1971).

A police officer has been found to be covered in some jurisdictions. In Ohio Farmers Ins. Co. v. Langfried, 348 F.Supp. 486 (1972) a general liability policy issued to a municipality defined “insured” as: “. . . [t]he named insured and ... any executive officer, director or stockholder thereof while acting within the scope of his duties as such... . ” That court recognized the difficulty in determining the “insureds” because, as in the case before us, the standard language form was more easily applied to businesses than to municipalities. In construing it, therefore, the court looked to the fact that the hazard schedule listed “policemen,” and a separate charge was made for that hazard. This fact was used by the court to establish the parties’ intention to include police officers within the definition of “insured” persons.

Another approach was used in Bouis v. Employers Liability Assurance Corp., La., 160 So.2d 36 (1963). That case held that a chief of police was an “executive officer of the named insured.” The court cited Black’s Law Dictionary, 4th Ed., for the definition of an “Executive Officer”:

“An officer of the executive department of government; one in whom resides the power to execute the laws; one whose duties are to cause the laws to be executed and obeyed. People v. Salsbury, 134 Mich. 537, 96 N.W. [936] 939; Petterson v. State, Tex.Cr.App., 58 S.W. 100; Mekota v. State Board of Equalization and Assessment, [146] Neb. [370], 19 N.W.2d 633, 640. An administrative officer. Sheeley v. People, 54 Colo. 136, 129 P. 201, 203.”

In the Salsbury case, the official in question was a city attorney; he was found to be within the classification of an “executive, legislative or judicial officer.” In Petter-son, a boat pilot appointed by the governor, was held not to be an “executive officer.” And in Mekota, a proposed legislative act creating a Department of Industrial Development was held to have proposed an executive state office whose officers had the duty “to cause the laws to be executed; such as the president, the governor of a state, or the chief executive officer of a city.” And in Sheely, a county commissioner was held to be a “ministerial officer” within a bribery statute.

Black’s Law Dictionary also included the following definition of an “Executive Officer”:

“One who assumes command or control and directs course of business, or some part thereof, and who outlines duties and directs work of subordinate employees. Arkansas Amusement Corporation v. Kempner, 182 Ark. 897, 33 S.W.2d 42, 43.”

Kempner concerned an employment agreement by which one was to work as a “Vice President” or in some other “executive capacity.”

Bouis, supra, cited a number of Louisiana decisions in support of the proposition that a police officer, being a public officer charged with exercising sovereign power, was an “executive officer.” That conclusion was dicta in Bouis, however, because the chief of police was clearly occupying a position at a managerial level, causing the laws to be executed by his direction of others; he was a person in whom was vested the power to direct the execution of the duties of his subordinates. Insofar as the decisions relied upon by the Bouis court purport to authoritatively establish the proposition that a chief of police and a police officer stand as one under the definition of an executive officer, we are not persuaded that such construction coincides with the practical meaning of the term.

The conclusion reached in Holm v. Mutual Service Cas. Ins. Co., Minn., 261 N.W.2d 598 (1977) is the reasonable one according with the intention of the parties. In that case the insurance company had issued a general liability and automobile liability policy to a municipality. Like Langfried and the instant case, the policy was written in corporate form, and the other persons insured included “any executive officer” of the named insured. The plaintiff Holm sued one Converse, a policeman for the municipality, to recover for injuries he allegedly incurred when Converse arrested Holm. In due course Holm proceeded against the insurance company. In determining that Converse was not covered by the policy the Wisconsin court rejected the argument that the policeman was an executive officer, and also refused to adopt the reasoning of Langfried which utilized the hazard schedule in ascertaining the intentions of the parties. Citing other decisions which had construed “executive officer” in connection with insurance policies covering private corporations, it recognized that the term “executive officer”

implies some sort of managerial responsibility for the affairs of the corporation generally and it imparts a close connection with the board of directors and high officers of the company [quoting Wisdom, J. in Bruce v. Travelers Insurance Co., 266 F.2d 784 (5 Cir. 1959)].

The court added:

In each of these cases, “executive officer” status in a private corporation turned on both the nature of the responsibility assumed by an individual and his formal designation as a company officer, either in the documents of incorporation or by someone authorized to create official positions. We believe that by identifying persons with similar responsibilities in municipal corporations, reasonable content can be given to the term “executive officer” as it applies to municipal corporations. Reasoning by analogy, then, a general definition might be framed as follows:
For the purpose of ascertaining the scope of coverage provided by a general liability policy covering a municipality, the executive officers of the municipal corporation are those persons whose position, power, and duties are established in the municipal charter and who are responsible for high-level governmental pol-icymaking. Although somewhat broadly drawn, this definition would generally include a city’s mayor or manager, councilmen, administrative board members, and department heads, while excluding employees whose duties are largely ministerial.
Considering the facts of the present case in light of this definition, we are convinced that Officer Converse was never an executive officer of the [municipality]. While it is true that police officers do exercise quite substantial discretion in the course of their daily law enforcement activities, the decision-making responsibilities incumbent upon them are not of the character contemplated by the definition of “executive officer.” That is, a policeman’s discretionary actions are not managerial or policy oriented, and are generally only short term in nature.

This analysis is similar to that we earlier expressed in finding that Lawley was an “executive officer” under the insurance policy issued to the board of education. In other words, the reasons which lead to the conclusion that Lawley was not an “executive officer” of the City of Homewood are the very reasons why he was an “executive officer” of the board of education, given the nature of his position, the manner of its creation, the type and extent of his responsibilities, and his relationship with the board of education as a de facto department head at least.

Declining to follow Langfried in using the hazard schedule as an indication of persons to be covered, Holm continued:

[A] hazard schedule is nothing more than a list of the potentially liability-producing activities for which coverage is provided to the named insured. An assessment of the number and character of such activities aids the insurance company in establishing the proper total premium charge. Clearly, however, the hazard schedule does not expand the category of persons insured; such persons are specifically designated in a different section of the policy. Instead, a hazard schedule merely lists the risks against which the persons insured are protected, and also sets forth the premium charge associated with each such risk.

That position appears to represent the majority view. See, e. g., MacLellan v. Liberty Mutual Ins. Co., 346 Mass. 415, 193 N.E.2d 577 (1963).

For the same reason we cannot agree with plaintiff that Lawley was an insured under the declarations of the City’s policy, viz.:

IN CONSIDERATION OF THE PROVISIONS AND STIPULATIONS HEREIN OR ADDED HERETO AND OF the premium above specified, this Company ... does insure the insured named above and legal representatives....

Plaintiff’s theory here is that at the time of the occurrence Lawley was acting as an agent or representative of the City of Homewood and thus was an insured under the City’s policy.

The term “legal representatives” has been construed by this Court as having a particular meaning:

The term “legal representative” is one having a well-defined legal meaning, its “primary meaning” being executors or administrators. [Citations omitted] ... This primary meaning would, of course, yield to a context which clearly showed a different meaning was intended. [Sullivan v. Louisville & N. R. Co., 128 Ala. 77, 30 So. 528, 534 (1901).]

We have established that Lawley was not an insured under the City of Homewood’s policy because, had he been acting as a policeman for the municipality, he was not covered as such. On the record that is the only capacity on which he could have been acting for the City. In Boston Marine Ins. Co. v. Scales, 101 Tenn. 628, 49 S.W. 743 (1899), a fire insurance policy provided that the term “insured” would be held to include the “legal representatives” of the assured. That court held that the term meant “parties beneficially interested, by law or contract, in the policy, such as an assignee, or the executors, administrators, and heirs of the assured, and not persons who are merely agents of the insured.” We find nothing in this record to suggest that an interpretation of this term in the declarations different from its usual meaning was intended by the parties.

IV.

Did the occurrence arise out of a business pursuit excluded under State Farm’s homeowners policy?

The trial court found that the event (the shooting incident) arose out of a business pursuit and was thus excluded under State Farm’s policy. That finding is amply supported by the evidence we have recited, and because that issue was one of fact the ore tenus rule requires affirmance. Employers Insurance Co. of Alabama v. Lewallen, 293 Ala. 574, 307 So.2d 689 (1975). In Stanley v. American Fire and Casualty Company, Ala., 361 So.2d 1030 (1978), we quoted from Crane v. State Farm and Cas. Co., 14 Cal.App.3d 727, 92 Cal.Rptr. 621: “.. . [b]usiness pursuit ... more accurately denotes a continued, extended or prolonged course of business or occupation.” The record establishes Lawley’s broad responsibilities for school security and justifies the finding that at the time of the shooting he was engaged in that pursuit, his usual and continued occupation. That fact being established, the exclusion in State Farm’s policy was applicable:

1. COVERAGE L — PERSONAL LIABILITY and COVERAGE M — MEDICAL PAYMENTS TO OTHERS do not apply to:
(b) bodily injury or property damage arising out of business pursuit of any insured ....

It follows that the trial court was correct in declaring that no coverage existed under the State Farm policy.

For the foregoing reasons, that portion of the order of the trial court holding that no coverage was afforded Lawley under Cincinnati’s policy of insurance issued to the City of Homewood or under State Farm’s homeowners policy issued to Lawley, is affirmed. That portion of the order holding that no coverage was afforded to Lawley under Cincinnati’s policy issued to the Homewood City Board of Education is reversed, and this cause is remanded to that court.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

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


text:
    BOARD OF TRUSTEES OF the POLICEMEN’S AND FIREMEN’S RETIREMENT FUND v. Shirley Patrick CARDWELL, etc.
    80-248.
    Supreme Court of Alabama.
    June 19, 1981.

      Roger W. Kirby, Gadsden, for appellant.
    James E. Hedgspeth of Floyd, Keener & Cusimano, Gadsden, for appellee.
   BEATTY, Justice.

The Board of Trustees of the Policemen’s and Firemen’s Retirement Fund of the City of Gadsden appeals from a determination that § 17 of Act No. 904 of the 1975 Acts of Alabama was unconstit' tional. We reverse and remand.

The defendant, Shirley Patrick Cardwell, married Michael Patrick on June 30, 1966. Two children were born to them — Stacy in 1967 and Scott in 1970. Michael was employed by the City of Gadsden as a firefighter. On August 31, 1976, Michael was killed in the line and scope of his employment.

From September 13,1976 until June 1977, Mrs. Cardwell (then Mrs. Patrick) received $188.94 per month in benefits from the Board of Trustees of the Policemen’s and Firemen’s Retirement Fund of the City of Gadsden (hereinafter the Board).

On July 14, 1977 Mrs. Patrick remarried. No benefits were paid to Mrs. Cardwell or to the two Patrick children after her remarriage.

A dispute arose between Mrs. Cardwell and the Board as to whether the minor children should continue to receive benefits after the remarriage of the mother. The Board then filed a declaratory judgment action asking the trial court to determine whether certain pension benefits should be paid to the children. The children were named as defendants and guardians ad li-tem were appointed for each of them. The parties agreed to a stipulation of the facts. The plaintiff filed supporting affidavits and moved for summary judgment. The defendants opposed the motion. On June 9, 1980 the trial court denied the plaintiff’s summary judgment motion and entered an order holding that the minor children were entitled to receive the pension benefits. After the Board’s motion for a new trial or alternatively to set aside the judgment was denied, the Board appealed.

Although neither party raises this question, nevertheless the trial court’s order appears in an uncertain posture. The motion for summary judgment was filed by the plaintiff, but it was denied and judgment was then rendered for the defendants, even though the defendants filed no motion. While that action does not comport with Rule 12, ARCP, on judgment on the pleadings, that is the effect of the trial court’s action.

The ultimate issue presented by this appeal is whether § 17 of Act 904 of the 1975 Acts of Alabama violates the equal protection clause of the Fourteenth Amendment by denying benefits to minor children of a deceased firefighter when the mother remarries, while allowing minors in other classifications to receive benefits.

Section 17 reads as follows:

If any active member of such police or fire department ... shall die from any cause whatever, leaving a widow or widower, said board shall direct the payment from said fund, to said widow or widower, of a sum equal to fifty percent of the amount specified in this act to be paid to a retired fireman or policeman of the same rank as such deceased member at the time of his or her death, said monthly payments to continue to such widow or widower during his or her natural life and while unmarried. Should such deceased member leave no surviving widow or widower, but leave surviving him or her a child or children under eighteen years of age, the board of trustees shall direct the payment monthly from such fund, until such child or children shall have attained the age of eighteen years, of a sum equal to fifty percent of the amount specified in this act to be paid to a retired fireman or policeman of the same rank as such deceased member at the time or his or her death, to the person having control and custody of such child or children or to such other person as the board of trustees shall direct, said sum to be expended by such person for the benefit of such child or children as may be prescribed by the board of trustees.

The trial court in concluding that § 17 violated the equal protection clause of the Fourteenth Amendment made the following specific findings of fact:

(16) That minor children have a fundamental right to be supported and maintained.
(18) That the Defendants are being denied this fundamental right to support by the actions of the Plaintiff in ceasing benefits upon their mother’s remarriage.
(19) That Plaintiff has presented no evidence or cited any law to the Court showing that such deprivation promotes a compelling governmental interest under the Roe case, supra, [410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973)] or that such is rationally related to some governmental interest under the San Antonio School District case, supra, [411 U.S. 1, 93 S.Ct. 1278, 36 L.Ed.2d 16 (1973)] and by virtue of the Plaintiff having failed to present such to the Court, it has not carried the burden of satisfying such tests.

The appellant urges the trial court erred in applying the proper standards used in reviewing statutes which are alleged to violate the equal protection clause of the Fourteenth Amendment.

There are two standards for reviewing statutes alleged to violate equal protection: 1. the compelling interest test; and 2. the rational basis test. The compelling interest test requires that where a classification infringes upon a fundamental right or constitutes a suspect class, a compelling interest must be shown to uphold the statute. See San Antonio School District v. Rodriguez, 411 U.S. 1, 93 S.Ct. 1278, 36 L.Ed.2d 16 (1973); Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973). Where neither a fundamental right nor a suspect class is involved, the rational basis test applies. It requires only that a classification of persons similarly situated be rationally related to a legitimate legislative purpose. San Antonio School District v. Rodriguez, 411 U.S. 1, 93 S.Ct. 1278, 36 L.Ed.2d 16 (1973); Muncaster v. Alabama State Ethics Commission, Ala., 372 So.2d 853 (1979).

While it is not clear which test the trial court used in this case, it appears that the compelling interest test was used because of the specific findings that the children had a “fundamental right to be supported and maintained,” that they were being denied this right by the actions of the plaintiff “in ceasing benefits upon their mother’s remarriage” and that the plaintiff failed to show any compelling governmental interest.

We cannot agree that these children had a fundamental right to be supported by a public pension plan. While we recognize that a father has a legal and moral duty to support his minor children and if he is unable to provide it, the mother can be compelled to contribute to their support, Collier v. Collier, 57 Ala.App. 208, 326 So,2d 769 (1976), that duty has never been applied to a governmental pension fund. The right to a pension is purely statutory. Cox v. Dunn, 243 Ala. 176, 9 So.2d 1 (1942). In Smith v. King, 277 F.Supp. 31 (M.D.Ala.1967) aff’d 392 U.S. 309, 88 S.Ct. 2128, 20 L.Ed.2d 1118 (1968), the court stated:

It should be noted that there is no vested legal right for anyone to receive public financial assistance; neither the United States nor the Alabama Constitution requires Alabama to grant financial^ assistance to needy dependent children. . . .

Thus we find that the trial court erred in holding that these children had a fundamental right to support by a governmental pension plan.

Although the trial court did not make a specific finding on the existence vel non of a suspect category, the defendants urge that by allowing some children to receive benefits, but not all, a suspect category was created. A suspect category, however, requires more than merely receiving different treatment. In San Antonio School District v. Rodriguez, supra, the United States Supreme Court stated that a suspect category is a class “. . . saddled with such disabilities, or subject to such a history of purposeful unequal treatment, or relegated to such a position of political powerlessness as to command extraordinary protection from the majoritarian political process.” It is clear that the class represented by these children does not rise to the status of a suspect category. Since neither a fundamental right nor a suspect category is involved here, the next step in an equal protection analysis is to determine whether this statute could meet the requirements of the rational basis test.

Under the rational basis test a statute must only have a rational relation to a legitimate governmental interest to be valid. San Antonio School District v. Rodriguez, supra; Muncaster v. Alabama State Ethics Commission, supra. The purpose of terminating benefits to the surviving spouse and children on the remarriage of the surviving spouse is to limit the number of individuals who receive benefits and the period of coverage in order to aid the pension system financially. A state legislature has a rational purpose and legitimate interest when it attempts to prevent a pension system from being unduly burdened. Freeman v. New York City Dept. of Corrections, 101 Misc.2d 22, 420 N.Y.S.2d 536 (1979). Thus we find that § 17 of Act No. 904 of the 1975 Acts of Alabama passes the rational basis test as it is rationally related to a legitimate state interest.

Although the trial court’s order which would allow the pension benefits to continue to be paid to these children throughout most of their minority has a certain appeal, that order supplies a requirement which the legislature did not include. As we stated earlier, the right to a pension is purely statutory, Cox v. Dunn, supra. For that reason the courts of this state do not have the power to grant benefits to classes of people not included by the legislature, but merely to determine whether it was constitutional for the legislature to exclude them. Since we have determined that the section in question was constitutional, the order of the trial court which found that section to be unconstitutional must be, and is hereby, reversed and remanded.

REVERSED AND REMANDED.

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


author: SENTELL, Clerk.

text:
    OPINION OF THE CLERK, Supreme Court of Alabama.
    Opinion No. 36.
    Supreme Court of Alabama.
    June 25, 1981.
   SENTELL, Clerk.

RULE 40(B), ALABAMA RULES OF JUDICIAL ADMINISTRATION — FEES AND COSTS — PREPARING CLERK’S RECORD AND RECORD ON APPEAL

Mr. Kyle Lansford, Circuit Clerk and Register, Shelby County, has submitted to me, as Clerk of the Supreme Court, pursuant to § 12-2-19(d), Code 1975, the following questions relating to the correct procedure for collecting costs for the preparation and transmission of the record on appeal in a civil case:

(1)Shall the cost be paid by the appellant at the time the appeal is completed and mailed?
(2) Shall the appellant pay for original copy which is mailed to the Supreme Court or Court of Civil Appeals, the additional three copies which are distributed to the attorneys for the appellant and appellee, and the copy that is retained in the office of the circuit clerk?
(3) Shall the circuit clerk collect the postage for mailing the copies?
(4) Shall the clerk hold the money collected for the preparation of the clerk’s record until the appeal has been finalized and the cost taxed?

The answer to the first question is that the appellant shall pay to the clerk of the trial court the costs of preparing the record on appeal at the time it is completed.

The answer to the second question is that the appellant shall pay for the original record on appeal and any additional copies that he may order.

The answer to the third question is that the circuit clerk shall not collect postage for mailing the original record on appeal to the appellate court.

The answer to the fourth question is in the negative.

I

Rule 40(B), Alabama Rules of Judicial Administration, prescribes the fees to be paid to clerks of the trial courts for services rendered in preparing, assembling, numbering, completing and binding the record on appeal, and for photocopying the pages required to be photocopied, and in filing certificates of completion in accordance with the Alabama Rules of Appellate Procedure.

Fees are compensation for services rendered by an officer in the progress of a cause. Bradley v. State, 69 Ala. 318, 321 (1881). See Opinion of Clerk, No. 10, October 25, 1977, 351 So.2d 570; see also County of Sutter v. Superior Court, 244 Cal.App.2d 770, 772, Note 2, (1966), 53 Cal.Rptr. 424-426; Dade County v. Strauss, Fla., 246 So.2d 137 (1971).

Rule 10(b)(1), Alabama Rules of Appellate Procedure, provides that the appellant shall, within seven days after filing the notice of appeal, order and designate the parts of the clerk’s record to be presented on appeal.

Fees should be paid by the parties at whose instance services are rendered. South & North Ry. Co. v. Bradley, 84 Ala. 468, 4 So. 611 (1887); Northern v. Hanners, 121 Ala. 587, 589, 25 So. 817 (1898).

It is my opinion that fees for preparing the clerk’s record and completing the record on appeal should be paid by the appellant to the clerk of the trial court at the time the record on appeal is completed, as shown by the clerk’s certificate of completion.

II

The clerk of the trial court is required in a civil case on appeal to prepare only the original record except when a party notifies the trial clerk to prepare an additional photocopy of the record on appeal in lieu of an appendix, or unless otherwise ordered by the parties. Rules 10, 11 and 30(g), Alabama Rules of Appellate Procedure.

It is my opinion that the appellant should pay for only the original record on appeal and an additional copy that he may request to be filed in the appellate court. Parties who want a copy of the record on appeal should pay the clerk for a copy in accordance with the schedule stated in Rule 40(B), Alabama Rules of Judicial Administration.

III

Rule 11(a)(3), Alabama Rules of Appellate Procedure, provides that the clerk of the trial court shall file the record on appeal with the clerk of the appellate court. It is my opinion that the circuit clerk should not collect postage for mailing the original record on appeal to the appellate court. If any of the parties orders a second copy of the record to be filed in the appellate court or otherwise orders a copy of the record, the clerk should collect the postage for mailing from the parties ordering the copies. See Rule 30(g), Alabama Rules of Appellate Procedure.

IV

Rule 4(H), Alabama Rules of Judicial Administration, is as follows:

(H) The clerk and register shall, periodically, but in no event less than once a month, not later than the tenth day of each month, remit all fines, forfeitures and costs of court, including prepaid docket fees, to the official designated to receive such at the municipal, county and state level, as provided by law or rule.

It is my opinion that fees received by the clerk for services rendered to the appellant in preparing the clerk’s record and completing the record on appeal should be remitted in accordance with Rule 4(H) in the same way that prepaid docket fees are remitted.

The procedure concerning costs after the appellant has paid the fees for preparing the clerk’s record and the record on appeal is governed by Rule 35(c), Alabama Rules of Appellate Procedure, together with § 12— 22-76, Code 1975.

Costs are an allowance to a party for expenses incurred in the successful prosecution or defense of a suit. Bradley v. State, supra; see Opinion of Clerk, No. 10, supra. See also County of Sutter v. Superior Court, supra, and Dade County v. Strauss, supra.

Rule 35(c), Alabama Rules of Appellate Procedure, provides that the cost of producing necessary copies of the clerk’s record and the reporter’s transcript shall be taxable in the trial court. Section 12-22-76, Code 1975, is as follows:

Execution by lower courts for unpaid costs.
Clerks of the circuit court and probate judges, when cases have been taken from their respective courts to an appellate court by appeal or other lawful mode and been there decided, if the costs accruing in such lower courts for transcripts, or otherwise, are not paid by the parties against whom they were adjudged in the appellate court, may issue executions for costs, returnable into the court in which such costs accrued.

If the appellee is ordered to pay the costs, the appellant has recourse to Rule 35(c), Alabama Rules of Appellate Procedure, and § 12-22-76, Code 1975, to reimburse him for the payment that he has made. See Loeb & Co., Inc. v. Martin, Ala., 349 So.2d 11 (1977); Ex parte General Mutual Insurance Company, 285 Ala. 445, 233 So.2d 230 (1970).


text:
    Henry FLOYD, Jr. v. STATE DEPARTMENT OF INDUSTRIAL RELATIONS.
    Civ. 2735.
    Court of Civil Appeals of Alabama.
    June 10, 1981.
    Frederick H. Heffler, Birmingham, for appellant.
    George C. Cocoris, Gen. Counsel, and Harry A. Lyles, Asst. Gen. Counsel, Montgomery, for appellee.
   EDWARD N. SCRUGGS, Retired Circuit Judge.

In this unemployment compensation case Mr. Floyd, the claimant, contends that the trial court erred in finding that he voluntarily left his employment and was, therefore, not entitled to receive compensation benefits while unemployed. However, the record on appeal does not contain a transcript of any of the evidence which was presented at his non jury circuit court trial.

The following excerpt from the unemployment compensation case of Argo v. Carter, Ala.Civ.App., 376 So.2d 746 (1979) is dispositive of this matter:

[I]t is well settled in this state that where it appears that the trial court heard evidence that is not before this court, such evidence will be conclusively presumed to support the findings and judgment of the trial court and will not be disturbed on appeal. English v. English, Ala.Civ.App., 352 So.2d 454 (1977). As pointed out above, the testimony heard by the trial court is not before this court. Consequently we are of the opinion that we have no alternative but to affirm the trial court’s judgment.

Likewise, we must affirm the judgment of the circuit court.

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

AFFIRMED.

All the Judges concur.


author: WRIGHT, Presiding Judge.

text:
    Bernis HANNAH v. Michelle BROWN.
    Civ. 2508.
    Court of Civil Appeals of Alabama.
    June 10, 1981.
    James E. Cox, Homewood, for appellant.
    W. Lee Pittman of London, Yancey, Clark & Allen, Birmingham, for appellee.
   WRIGHT, Presiding Judge.

The only issue presented on appeal is: May plaintiff whose automobile was damaged by defendant recover for the loss of use thereof during the time reasonably necessary for its repair?

At trial below, it was stipulated that the difference between the value of plaintiff’s automobile immediately before its accident with defendant and its value immediately after the accident in its damaged condition was $805. It was also stipulated that the reasonable rental value of a replacement car during the time of repair of plaintiff’s automobile was $576.60. The trial court awarded judgment for an amount less than the combined stipulated figures. Plaintiff appealed.

The usual rule of measuring damages for the tortious injury to personal property has long been the difference in market value before and after the injury. The rule has been applied to personal automobiles. Hill Grocery Co. v. Caldwell, 211 Ala. 34, 99 So. 354 (1924). It has been written into Alabama Pattern Jury Instructions as Instruction 11.23 and amplified by Instruction-11.-24. Though perhaps considered generally by the practicing bar and the nisi prius courts as a limitation of recovery, we consider it not to be an absolute measure of recoverable damages for injury to a personal use automobile, but may constitute only a principal element thereof. The rule is subject to the primary and basic principle that it is the purpose of the law to fairly compensate the injured for the wrong committed. Birmingham R. L. & P. Co. v. Sprague, 196 Ala. 148, 72 So. 96 (1916).

That principle is stated in Mobile Light & R. Co. v. Gadik, 211 Ala. 582, 100 So. 837 (1924) by Mr. Justice Bouldin as follows:

In fixing the measure of damages it is the aim of the law to reimburse the actual loss. This loss is usually ascertained by finding the difference between the reasonable market value immediately before and immediately after the injury. This is generally declared to be the true measure of damages....
When the injury may be fully repaired the reasonable cost of repairs is the proper subject of inquiry . . . but this cost may not be the sole loss. The reasonable value of the hire or use of the car while deprived thereof, the expenses of removing it to and from the place of repair, and maybe other elements may enter into the real loss. No hard and fast rules should be imposed upon the trial court in the admission of evidence touching the elements upon which a fair judgment of the loss in market value may be ascertained.

We derive from what was said by the court in Mobile Light the meaning that generally the measure of damages is the difference between the before and after reasonable market value of the property damaged, if it is reasonably capable of being restored by repair to its original condition. The reasonable cost of such repairs may be admitted and considered. Other costs, such as reasonable value of use or hire of the car while the owner is deprived of its use during repairs, wrecker costs, etc., may be shown to establish the real loss. Any element affecting a determination of the real loss may be considered in determining the difference in market value. In the cases decided by the Alabama appellate courts that we have studied in which there is mention of the right to show loss of use of an automobile, it was proved in addition to market value in only one. Cocke v. Edwards, 215 Ala. 8, 108 So. 857 (1926). In other cases it was stated that deprivation of use was a real loss and recoverable but it was not proved at trial. Hill Grocery v. Caldwell, supra; Birmingham R. L. & P. Co., supra.

To state that loss of use and wrecker costs, etc., are provable and recoverable but only as elements toward determining market value is neither reasonable nor logical. Such costs have no reasonable relationship to market value as repair cost may. If what we have recited from Mobile Light means that, then it is contrary to the theory of establishing the “real loss.” It is also contrary to what Mr. Justice Thomas said in Hill Grocery and thereafter in Cocke. In Hill Grocery the suit was for damages to the automobile and for loss of use. Demurrers were overruled. Loss of use was not proved but damage to the automobile was established and recovered. In Cocke damages to the car and loss of use during the period of repair were claimed in separate counts. The before and after value was proved together with the reasonable rental value of the car for thirty days while it was being repaired. Mr. Justice Thomas said, “This he may recover,” citing his previous decision in Hill Grocery Co. v. Caldwell.

We consider the Alabama cases we have discussed including Mobile Light (concurred in by Mr. Justice Thomas, written by Mr. Justice Bouldin, who concurred in both Hill Grocery and Cocke), as standing for the rule that loss of use of a personal automobile during a reasonable period for repair is an element of recoverable damage in addition to the difference between the before and after reasonable market value. Such is the prevailing general rule. 18 A.L.R.3d 497 (citing Cocke and Mobile Light); 8 Am.Jur.2d Automobiles and Highway Traffic § 1134 (1980); 25 C.J.S. Damages § 41 at p. 729. Following the general rule are our neighboring states of Florida, Georgia, Louisiana, Mississippi, North Carolina, South Carolina, and Tennessee.

Our case of Winn-Dixie Montgomery, Inc. v. Holt, 57 Ala.App. 499, 329 So.2d 556 (1976) is not to the contrary. The statement we made in that case as to the difference in the measure of damage between injury to commercial and non-commercial vehicles was directed to that difference indicated by comparing Alabama Pattern Jury Instructions 11.23 and 11.25.

APJI 11.25 shows without question that this state adheres to the rule that the owner of a commercial vehicle is entitled to recover as an element of damage the reasonable market value of the hire or use of his damaged vehicle during the time reasonably necessary for its repair in addition to the reasonable expense of making such repairs. In this day a personal automobile is no longer a mere luxury but is a necessity for the comfort, entertainment, and personal business and enterprise of every person, especially a family. It would be an anachronism to say its deprivation of use during the reasonable time for repair is not a compensable loss in addition to the loss of its market value after wrongful damage.

We consider that our supreme court established such rule in Birmingham R.L. & P. Co. v. Sprague, supra, in 1916, and repeated it in Hiil Grocery, Cocke and probably Mobile Light. No cases state the contrary. We merely reiterate.

In this case the reasonable rental value of plaintiff’s vehicle during the reasonable time of its repair was stipulated to be $576.60. The difference in reasonable market value before and after injury was stipulated to be $805. The sum of the two constituted the real loss of plaintiff. The judgment of $885 is contrary to the undisputed evidence. It must be reversed. It is reversed and the case is remanded for entry of judgment in favor of plaintiff in the sum of $1,381.60, together with interest thereon.

REVERSED AND REMANDED WITH DIRECTION.

BRADLEY and HOLMES, JJ., concur.

      . See, Meakin v. Dreier, 209 So.2d 252 (Fla.App.1968).

      . See, Lamb v. Landers, 67 Ga.App. 588, 21 S.E. 321 (1942).

      . See, Plotkin v. Martino, 192 So.2d 381 (La.App.1966), cert. denied, 250 La. 97, 194 So.2d 97 (1967).

      . See, Vining v. Smith, 213 Miss. 850, 58 So.2d 34 (1952).

      . See, Ling v. Bell, 23 N.C.App. 10, 207 S.E.2d 789 (1974).

      . See, Newman v. Brown, 228 S.C. 472, 90 S.E.2d 649 (1955).

      . See, Perkins v. Brown, 132 Tenn. 294, 177 S.W. 1158 (1915).


author: BRADLEY, Judge. WRIGHT, Presiding Judge,

text:
    CHRYSLER CORPORATION, a corporation, v. Bonnie Faye HENLEY.
    Civ. 2581.
    Court of Civil Appeals of Alabama.
    June 10, 1981.

      Harold F. Herring and Thomas R. Robinson of Lanier, Shaver & Herring, Huntsville, for appellant.
    Aubrey O. Lammons of Lammons, Bell & Sneed, Huntsville, for appellee.
   BRADLEY, Judge.

This is a workmen’s compensation case.

Plaintiff, Bonnie Faye Henley, sought workmen’s compensation benefits from her employer, defendant, Chrysler Corporation, for a pulmonary disease caused by continuous exposure to chemical fumes and fiberglass particles while on her job. The trial court found that plaintiff was fifty percent permanently partially disabled to the body as a whole as a result of bronchial asthma contracted during her employment with defendant and awarded benefits commensurate with that finding. Defendant’s motion for new trial was overruled and defendant appealed.

The facts show that Mrs. Henley was employed by Chrysler Corporation as a sound system aligner in its manufacture of AM and FM radios from November 11,1975 to February 16, 1979.

This job required plaintiff to adjust the frequencies on the radios as they passed over an assembly line. Plaintiff’s position on the assembly line was within thirty feet of a device known as a wave solder machine. A printed circuit board which was a part of the radios would pass through the wave solder machine where the circuit board would be subjected to a stream of solder, solder flux, and trichloroethylene. Occasionally a board would drop into the trichloroethylene and at such times an employee would have to reach into the tank and retrieve the board. Plaintiff said she had done this several times.

Plaintiff also was required occasionally to pump trichloroethylene from a portable drum into a storage tank attached to the wave solder machine and, in doing so, it was necessary that she place her head in the tank so that she could observe the amount therein so as not to overfill it.

During the time that plaintiff worked for Chrysler Corporation she constantly inhaled the fumes from the solder flux and trichlo-roethylene.

Beginning in 1977 plaintiff experienced headaches, dizziness, sore throats, coughing and wheezing. At the time of trial plaintiff was experiencing continuous wheezing, periodic coughing, short-windedness, and occasional asthma attacks. Prior to her employment with Chrysler, plaintiff had never suffered from severe, prolonged respiratory problems even though she had worked for an electronics company using chemicals similar to those encountered at Chrysler.

In the early fall of 1978 plaintiff sought medical help for coughing and throat pain and in December of that same year Dr. Griggs performed a laryngostomy, bron-choscopy, and bronchogram on plaintiff. The diagnosis was bronchitis.

In February 1979 plaintiff saw Dr. Huber who reported to defendant’s sickness and accident insurance carrier that plaintiff was suffering from bronchial asthma as well as bronchitis. He said that plaintiff could return to work for Chrysler if she were placed in a part of the plant where she would not inhale the noxious fumes previously mentioned. Defendant did not attempt to employ plaintiff in any capacity.

Plaintiff started receiving weekly sickness and accident benefits from defendant’s group health insurance carrier in 1979 and was receiving extended disability benefits from the carrier at the time of trial.

Defendant argues here that plaintiff’s asthmatic condition was not a disease within § 25-5-110, Code 1975; that her employment did not cause or aggravate this condition; and that her job did not expose her to hazards in excess of those ordinarily incident to employment in general and peculiar to her occupation. Defendant also contends that there is no evidence to support the finding that plaintiff sustained a fifty percent permanent partial disability to the body as a whole, but if there was evidence of a permanent partial disability, plaintiff^ benefits would be limited to those injuries suffered within one year of the filing of the complaint.

Defendant says that bronchitis and bronchial asthma are temporary, intermittent breathing disorders and not occupational diseases within the meaning of § 25-5 — 110, Code 1975.

Section 25-5-110 provides in part as follows:

For the purposes of this article, the following terms shall have the meanings respectively ascribed to them by this section:
(1) Occupational disease. A disease arising out of and in the course of employment ... which is due to hazards in excess of those ordinarily incident to employment in general and is peculiar to the occupation in which the employee is engaged .... A disease .. . shall be deemed an occupational disease only if caused by a hazard recognized as peculiar to a particular trade, process, occupation or employment as a direct result of exposure over a period of time to the normal working conditions of such trade, process, occupation or employment.

Although our courts have never said that bronchitis and bronchial asthma are diseases, other state courts have so held. See Maniscalco v. Pizza Chef, Inc., 17 App. Div.2d 884, 233 N.Y.S.2d 291 (1962); Mayr v. Price, 9 App.Div.2d 801, 192 N.Y.S.2d 752 (1959). But we have said that disease means more than a temporary disorder, that it denotes a serious disorder which has impaired the constitution or left in its wake some organic or chronic effect which has undermined the general health. Life Insurance Co. of Virginia v. Mann, 28 Ala.App. 425, 186 So. 583 (1938), cert. denied, 237 Ala. 253, 186 So. 586 (1939).

The record in the instant case shows that plaintiff’s respiratory problems cause her to wheeze almost constantly, that she must take medication for her asthmatic condition, and that she is frequently tired and short-winded. Such problems have certainly undermined plaintiff’s general health; hence we conclude that bronchitis and bronchial asthma are diseases within the meaning of § 25-5-110.

Next, defendant argues that plaintiff failed to prove that the noxious fumes she breathed while employed in defendant’s plant caused or contributed to her respiratory ailments.

It is axiomatic that an occupational disease is not compensable if it is not caused or aggravated by the nature of the employment. City of Tuscaloosa v. Howard, 55 Ala.App. 701, 318 So.2d 729 (1975). However, if there is evidence to support a trial court’s findings that plaintiff’s employment caused her respiratory problems, such findings must be upheld here. See Young v. City of Huntsville, Ala.Civ.App., 342 So.2d 918 (1976), cert. denied, Ala., 342 So.2d 924 (1977).

There is evidence in the record that one of plaintiff’s doctors reported to defendant’s sickness and accident insurance carrier that plaintiff’s problems were “due to occupational inhalants” and were “work related.” This evidence, coupled with plaintiff’s testimony that she had never had any respiratory problems prior to employment with Chrysler, is sufficient to support the trial court’s finding that plaintiff’s respiratory problems resulted from the work environment at defendant’s plant.

Defendant contends, however, that the record contains no evidence that plaintiff’s disease was caused by hazards in excess of those ordinarily incident to employment in general and that those hazards were peculiar to plaintiff’s occupation, and, therefore, such disease was not an occupational disease within the meaning of § 25-5-110.

[I]n order for a disease to be occupational it must be due to hazards which are (1) in excess of those ordinarily incident to employment in general and (2) different in character from those found in the general run of occupations. To state the matter succinctly, the plaintiff must be exposed by his or her employment to the risk causing the disease in a measurably greater degree and in a substantially different manner than are persons in employment generally.

Young v. City of Huntsville, supra.

We have decided that plaintiff is afflicted with a disease caused by prolonged exposure to fumes emanating from chemical substances present at defendant’s plant where she was employed. Therefore, our next inquiry will be whether plaintiff’s employment exposed her to risks greater than are encountered in employment generally and whether these risks were peculiar to plaintiff’s occupation.

The record evidence shows that plaintiff’s job required her to constantly inhale molten solder, solder flux, and trichloroethylene fumes. Prolonged or repeated inhalation of these fumes could and did injure her health. Workers in many other occupations are in no way compelled to inhale these fumes for even a short period of time. Thus, we conclude that plaintiff’s employment exposed her to a greater risk of contracting respiratory diseases than workers in other lines of employment.

We now pass to a consideration of defendant’s claim that plaintiff’s employment did not expose her to the risk of constantly inhaling molten solder, solder flux, and trichloroethylene fumes in a substantially different manner than persons in other occupations. The record in this case does reveal that many workers in other lines of employment frequently come into intermittent contact with products containing solder, solder flux, and trichloroethylene. However, there is no evidence that many employees in other occupations experience prolonged exposure to large quantities of molten solder, solder flux, and trichloroethylene fumes. It follows that the risk to which plaintiff was exposed on a daily basis was substantially different from that encountered by employees in other occupations. Having demonstrated that she was exposed by her employment with defendant to the risk of constantly inhaling solder, solder flux and trichloroethylene fumes “in a measurably greater degree and in a substantially different manner than . .. persons in employment generally,” plaintiff indeed proved that she had contracted an occupational disease for which the trial court could award her workmen’s compensation benefits.

Another contention defendant makes is that the trial court failed to find that plaintiff suffered a fifty percent permanent partial disability to earn a living. Instead the trial court found that plaintiff suffered a fifty percent permanent partial disability to the body as a whole. In Lingo v. Dixie Veneer Co., Ala.Civ.App., 349 So.2d 591 (1977) we held that in the absence of a finding that claimant had suffered a permanent partial loss of ability to earn, there was no basis for an award of benefits. In the case at bar there was no finding that Henley had a permanent partial loss of ability to earn; hence there is no basis for the award of benefits. Thus the judgment contains a fatal defect.

Finally, defendant says that the trial court erred by not limiting plaintiff’s recovery of compensation for injury sustained from her employment to that period within one year next preceding the filing of her complaint, i.e., for those injuries sustained from February 11, 1979 (one year prior to filing of complaint) to February 15, 1979 (plaintiff’s last day at Chrysler). We cannot agree.

Section 25-5-117, Code 1975, grants to an employee who has contracted an occupational disease one year from the day on which he was last exposed to the fyazard causing the disease to file a claim for workmen’s compensation benefits. Said section does not limit or even purport to limit the amount of compensation an injured employee may be entitled to receive from his employer to that portion of the disabling disease accruing in the period of one year next preceding the filing of the complaint and the date of last exposure to the hazards causing the disease. An employee seeking workmen’s compensation benefits is entitled to all of the benefits permitted by law regardless of the date of filing of his claim within the statutory period. There is no apportionment of benefits in a workmen’s compensation case such as was sanctioned in Garren v. Commercial Union Insurance Co., Ala., 340 So.2d 764 (1976) and Garrett v. Raytheon Co., Ala., 368 So.2d 516 (1979). The cited cases involved tort actions, not workmen’s compensation actions, and are not apt authority for the contentions of defendant.

For the error noted above, the judgment is reversed and the cause remanded.

AFFIRMED IN PART, REVERSED IN PART AND REMANDED.

HOLMES, J.', concurs.

WRIGHT, P. J., concurs specially.

WRIGHT, Presiding Judge,

concurring specially.

I concur specially in this case. In the beginning of our consideration of this case and after oral argument, I had doubts as to whether the facts brought this plaintiff’s claim within the Occupational Disease statute or whether it was subject to the “accident” provisions of Article 3 of the Workmen’s Compensation Law. If plaintiff’s disease was accidental, as we have come to interpret the term “accident” in cases such as Kane v. South Central Telephone Co., 368 So.2d 3 (Ala.1979); Young v. City of Huntsville, 342 So.2d 918 (Ala.Civ.App.1976); City of Tuscaloosa v. Howard, 55 Ala.App. 701, 318 So.2d 729 (1975); B. F. Goodrich v. Martin, 47 Ala.App. 244, 253 So.2d 37 (1971), it could not be an occupational disease, for the last sentence of § 25-5-110(1) says: “The term ‘occupational disease’ shall not include accidents within the meaning of Articles 3, 5 and 7 of this chapter.”

I would have no difficulty in categorizing plaintiff’s bronchitis as an accident, even though it resulted from a long term exposure to chemicals or gases. This is so even though the court in Kane indicated a continued adherence to the “sudden and violent” definition of an accident as followed in the case of Gentry v. Swann Chemical Co., 234 Ala. 313, 174 So. 530 (1937). The court distinguished its holding in Kane from that of Gentry because of the brevity of Kane’s exposure to the paint fumes. I submit that if the job causes an injury or unexpected disease whether from brief or extended exposure it should be compensable as an accident. Otherwise we must determine “accident” according to some scale of time of exposure or suddenness of onset.

I consider that the occupational disease statutes, by definition and reason, relate to a particular occupation or industry. Each of the specific occupational diseases provided by statute relates to a general classification or occupation, i.e., coal miners, textile workers, radiation workers, and workers exposed to dust and silica regularly and peculiarly as an incident of their job. §§ 25-5-140 to 203. Even firemen are regularly exposed as a general group to the conditions contributing to heart disease. § 11-43-144. I do not believe even the general definition of occupational disease contained in § 25-5 — 110 was intended to apply to one worker employed on an assembly line who is exposed to an element or a condition not common to his fellow employees, which causes him to develop a common disease such as bronchitis.

I concur in the result because there is proof that plaintiff developed a job-caused disease and therefore it should be compen-sable. Whether classified as an accident or occupational disease, the claim was filed as an occupational disease claim and was tried on that basis. I would not deny compensation because the claim should have been filed as an accident. I would reverse on the claim as filed and return the case to the trial court for reconsideration of whether there was a compensable accident. A workmen’s compensation claim should not be denied because of claiming under the wrong section of the law. The majority disagreed with my view. Because the evidence supports compensation, I agree with the result of the majority.