author: HAWKINS, Justice,

text:
    Theo RATLIFF v. STATE of Mississippi.
    No. 54473.
    Supreme Court of Mississippi.
    Nov. 14, 1984.

      Thomas J. Lowe, Jr., Jackson, Thomas G. Clark, Clark & Massey, Laurel, for appellant.
    Bill Allain, Atty. Gen. by Robert D. Find-ley, Sp. Asst. Atty. Gen., Jackson, for ap-pellee.
    Before ROY NOBLE LEE, P.J., and HAWKINS and SULLIVAN, JJ.
   HAWKINS, Justice,

for the Court:

Theo Ratliff appeals from his conviction of murder in the Circuit Court of the Second Judicial District of Jones County and sentence to life imprisonment.

The only issues he raises on this appeal are the state’s failure to prove malice in the slaying, and that, since he was 62-years-old at the time of the slaying, to sentence him to life imprisonment violates the 8th Amendment.

Finding them to be without merit, we affirm.

FACTS

The city police of Laurel went to the residence of Gathea Jones shortly after 2:00 p.m. on the afternoon of April 15, 1980, where they found him seated in a chair; fully clothed; head slumped over on his right shoulder; cap still on his head; pieces of bread between his fingers; and quite dead. On the floor between his legs was a partially eaten sandwich.

The room was not torn up; there was no apparent sign of a struggle anywhere about the room, its contents, or about Jones.

He had been shot just below the left eye; the bullet had entered the brain and instantly killed him. Autopsy further revealed intoxication to the point of sedation.

Ratliff had spent the day with Jones drinking with him. He admitted to several people that he had shot Jones. His explanation is best set forth in his written statement to the police. After reciting the purchase of four half-pints at various establishments, and traveling together about the community, the statement in pertinent part reads as follows:

... Everything was real friendly. Then, we went on to Gatha’s house at 926 S. 8th. I went to get the bottle we had gotten at Eva’s. Gatha grabbed me and I told him to quit. I had a gun stuck down in my belt. We tusseled in the living room and somehow, I don’t know how, the gun was in my hand and I was trying to keep Gatha from getting it. The gun went off.... After the gun went off Gatha fell back in a chair.... We didn’t have anything to eat all day. We just drank. [Sic]

The jury was properly instructed, and obviously did not believe Ratliff’s version of the homicide.

LAW

Ratliff’s first assignment of error is that the state failed to prove a premeditated intent to kill, and Ratliff at most should have been found guilty of manslaughter.

Ratliff did not testify; the only evidence before the jury was the testimony of the police officers who found the body, and of acquaintances who had seen the pair that day; the photographs of the body as it was found in the chair of the room; testimony of the pathologist; and the written statement of Ratliff.

He argues that the presumption of malice which follows the use of a deadly weapon disappears when all the facts are in evidence. This is a correct statement of law, but inapplicable to the facts in this case. The facts pertaining to this slaying were not all introduced into evidence, and even if they were, from the evidence before the jury it was fully warranted in rejecting Ratliff’s version of the slaying. See: Smith v. State, 205 Miss. 288, 38 So.2d 725 (1949); Crockerham v. State, 202 Miss. 25, 30 So.2d 417 (1947); and Bennett v. State, 152 Miss. 728, 120 So. 837 (1929).

Ratliff also complains he was 62 years of age at the time of the slaying and a sentence to life imprisonment is violative of the 8th Amendment of the U.S. Constitution. Stating this assignment of error answers it before this Court.

Finding no error, the judgment of the Circuit Court is affirmed.

AFFIRMED.

PATTERSON, C.J., ROY NOBLE LEE, P.J., and BOWLING, DAN M. LEE, PRATHER, ROBERTSON and SULLIVAN, JJ., concur.

WALKER, P.J., not participating.


source: Caselaw Access Project

author: ROY NOBLE LEE, Presiding Justice,

license: Public Domain

text:
    Janyce McCLINTON v. STATE of Mississippi.
    No. 54449.
    Supreme Court of Mississippi.
    Nov. 21, 1984.
    Bob Owens, Owens & Byrd, Jackson, for appellant.
    Bill Allain, Atty. Gen. by Walter L. Turner, Sp. Asst. Atty. Gen., Jackson, for appel-lee.

      Before ROY NOBLE LEE, HAWKINS and SULLIVAN, JJ.
   ROY NOBLE LEE, Presiding Justice,

for the Court:

Janyce McClinton was indicted, tried and convicted in the Circuit Court of the First Judicial District, Hinds County, Mississippi, for embezzling $3,491.01 from the University Medical Center. The lower court sentenced her to ten (10) years in custody of the Mississippi Department of Corrections with five (5) years suspended, and McClin-ton has appealed to this Court assigning five (5) errors in the trial below.

I.

DID THE LOWER COURT ERR IN OVERRULING APPELLANT’S MOTION FOR A DIRECTED VERDICT?

The University Medical Center began receiving complaints from patients covering the period June 25, 1981, to August 10, 1981, that payments they had mailed to the Medical Center had not been credited to their accounts, even though the patients had their cancelled checks evidencing such payments. As a result, Linda Ferguson, a senior internal auditor, who audited (and supervised audits) financial areas of the University Medical Center, was contacted and requested to make an audit of the finances during that period. She testified that the patients’ accounts office at the Medical Center is a central collection agency, which receives money from people checking out of the hospital, money that people pay over a period of time and mail in, money from the cafeterias, pharmacies and ambulance services. Employees designated as cashiers receive such moneys, checks are stamped and the amount of funds received by each cashier is then delivered to a deposit clerk, who makes one deposit for all the cashiers. (Three cashiers in number)

The evidence for the State reflects that between June 25 to August 10, 1981, there were twenty-seven (27) questionable transactions involving $3,491.01 spread out over a period of fourteen (14) days; that the amount delivered by the cashiers to the deposit clerk was the exact amount deposited by the deposit clerk to the Medical Center’s account; that the amount of funds missing was identical with the amount of funds not credited to the account of certain patients; appellant acted as cashier and as deposit clerk during the questionable period, and she was the only one who served in such positions on the same occasions; that a person would have to serve in a dual capacity such as appellant did in order to divert the funds in the manner that occurred.

During the period in question, appellant began to live in a more affluent lifestyle and she appeared nervous and distraught. Subsequent to the investigation, she accused another person in the office with the statement that she was going to take somebody else with her.

In passing on motions for directed verdicts and requests for peremptory instructions of not guilty, all evidence on behalf of the State is taken as true, together with reasonable inferences that may be drawn therefrom, and, if there is sufficient evidence to support a verdict of guilty, the motion for directed verdict must be overruled and the peremptory instruction must be denied.

Wilks v. State, 408 So.2d 68 (Miss.1981); Taylor v. State, 398 So.2d 1341 (Miss.1981); Goldman v. State, 406 So.2d 816 (Miss.1981); Warn v. State, 349 So.2d 1055 (Miss.1977).

Although the evidence was largely circumstantial, we are of the opinion that, under the rule expressed above, the lower court did not err in overruling the motion for directed verdict of not guilty.

II.

DID THE LOWER COURT ERR IN ALLOWING THE STATE TO IMPEACH THE APPELLANT ON AN IMMATERIAL MATTER?

During the investigation, appellant told the investigator that one Laura Wright had taken $100.00 of funds coming into the cashiers’ hands. On cross-examination, she was asked why she made the untrue statement about Wright and appellant said that she did not lie. The State, in rebuttal, called Alvin Shavers, the investigator, who testified that he could find no evidence of Wright’s having taken the money. Appellant complains that she was being impeached on an immaterial matter. However, no objection was made, and the matter was not preserved for decision on this appeal.

III.

DID THE LOWER COURT ERR IN ADMITTING INTO EVIDENCE EXHIBIT 1 WHICH WAS THE AUDITOR’S TYPED LIST OF CHECKS ALLEGEDLY RECEIVED BY THE MEDICAL CENTER THAT HAD NOT BEEN TIMELY CREDITED TO PATIENTS’ ACCOUNTS?

The auditor listed and identified the checks involved in the charge against appellant. All the original checks were not introduced, because a great deal of time would have been required to obtain those original checks and present them. The hospital had copies of the checks, which were all identified by the accountant, and proved. One check in the amount of $441.02 was used as an example and pattern of all the other checks and was specifically used by the accountant.

The checks were sufficiently proved by the list and copies and there is no merit in this assignment. Williams v. State, 386 So.2d 588 (Fla.1980); Jones v. State, 360 So.2d 1293 (Fla.1978).

IV.

DID THE LOWER COURT ERR IN FAILING TO SUSTAIN APPELLANT’S MOTION FOR MISTRIAL AFTER THE TESTIMONY THAT THE PROSECUTING WITNESS, LAURA WRIGHT, WAS GIVEN A POLYGRAPH EXAMINATION?

It is reversible error to show that a polygraph test was administered to a defendant, and, in at least one case, it was held error to ask the question.

In the present case, on cross-examination, Alvin Shavers, the investigator, denied he did anything additional in investigating the case with reference to Laura Wright. He had previously stated that he found nothing connecting her with the missing funds. He then stated that he had given her a polygraph test. The results were not disclosed. The appellant objected on the ground that it was an attempt to bolster the testimony of Laura Wright.

The lower court overruled the objection and asked appellant’s attorney whether or not he desired the court to instruct the jury to disregard the statement. The attorney answered in the affirmative, and the court so instructed the jury. Therefore, in our opinion, the error was cured. Edwards v. State, 413 So.2d 1007 (Miss.1982).

V.

DID THE LOWER COURT ERR IN PERMITTING THE AUDITOR TO GIVE AN OPINION AS TO THE GUILT OF THE DEFENDANT?

On direct examination, the witness, auditor Linda Ferguson, made the following responses to questions:

Q. All right. Now, did you check the attendance records for the employees of the Patient Accounts Department during that period of time?
A. Yes.
Q. And was Janyce McClinton present on every single one of those days in which a questionable transaction occurred, Ms. Ferguson?
A. Yes.
Q. In your opinion as an Accountant, in what employment position at the Patient Accounts office at the University Medical Center did the discrepancy take place — where was the money removed?
A. It was removed by the person who made up the deposit.
Q. And is that the Deposit Clerk?
A. Yes.
Q. Is that Janyce McClinton?
A. Yes.

The appellant’s attorney did not make a specific objection to the above examination and the question was not preserved. Norman v. State, 302 So.2d 254 (Miss.1974); Stringer v. State, 279 So.2d 156 (Miss.1973).

It is elementary that a witness may not give his own opinion as to the guilt or innocence of a person. However, the testimony of Ms. Ferguson previous to the punch line answer was equivalent to the fact that appellant converted the money. There was no prejudice to the appellant, and there is no merit in this assignment.

The judgment of the lower court is affirmed.

AFFIRMED.

PATTERSON, C.J., WALKER, P.J., and BOWLING, HAWKINS, PRATHER, ROBERTSON and SULLIVAN, JJ., concur.

DAN M. LEE, J., not participating.

      . Monies received from patients, either in cash or checks from the mail during this process are registered on a computer and credited to the patients’ accounts before delivery to the deposit clerk.

      . Appellant’s attorney on this appeal did not participate in the lower court trial.


text:
    Donald COOPER v. STATE of Mississippi.
    No. 54464.
    Supreme Court of Mississippi.
    Nov. 21, 1984.
    Rehearing Denied Dec. 12, 1984.
    Charles R. Holladay, Picayune, Thomas J. Lowe, Jr., Jackson, for appellant.
    Bill Allain, Atty. Gen. by Billy L. Gore, Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Pearl River County; R.I. Prichard, III, Judge.

Before PATTERSON, C.J., and DAN M. LEE and ROBERTSON, JJ.

AFFIRMED.

WALKER and ROY NOBLE LEE, P.JJ., and BOWLING, HAWKINS, PRATHER and SULLIVAN, JJ., concur.


text:
    TIMES SQUARE REALTY, INC. v. CITY OF GRENADA, et al.
    No. 55206.
    Supreme Court of Mississippi.
    Nov. 21, 1984.
    Rehearing Denied Dec. 12, 1984.
    Roy 0. Parker, William F. Randle, Roy 0. Parker & Associates, Tupelo, for appellant.
    Mitchell M. Lundy, Lundy & Lundy, Phil Embry, Keeton, Cofer & Embry, Grenada, Barry H. Powell, A. Spencer Gilbert III, Gilbert & Powell, Jackson, for appellee.
   Appeal from Special Court of Eminent Domain, Grenada County; Clarence E. Morgan, Jr., Judge.

Before ROY NOBLE LEE, P.J., and HAWKINS and SULLIVAN, JJ.

AFFIRMED.


text:
    Arthur SUTTON v. STATE of Mississippi.
    No. 55271.
    Supreme Court of Mississippi.
    Nov. 28, 1984.
    Rehearing Denied Dec. 12, 1984.
    Ross Barnett, Jr., Barnett, Montgomery, McClintock & Cunningham, Jackson, for appellant.
    Edwin Lloyd Pittman, Atty. Gen. by Carolyn B. Mills, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Rankin County; James W. Smith, Special Judge.

Before ROY NOBLE LEE, P.J., and HAWKINS and SULLIVAN, JJ.

Affirmed.

PATTERSON, C.J., WALKER, P.J., and BOWLING, DAN M. LEE, PRATHER and ROBERTSON, JJ., concur.


text:
    STATE of Mississippi, By and Through Bill ALLAIN, Attorney General v. WEST IMPLEMENT COMPANY, INC. and Planters Equipment Company.
    No. 55248.
    Supreme Court of Mississippi.
    Dec. 5, 1984.
    Bill Allain, Atty. Gen., P.L. Douglas, First Asst. Atty. Gen., Jackson, Benjamin E. Griffith, Cleveland, for appellant.
    Jeffrey A. Levingston, Levingston & Jacks, Cleveland, for appellees.
   Appeal from Chancery Court, Bolivar County; William H. Bizzell, Chancellor.

Before WALKER, P.J., and BOWLING and PRATHER, JJ.

AFFIRMED.


text:
    Clayton J. SWANK III and Patricia Ann Farr Swank v. VIRDEN COMMERCIAL BUILDERS, INC.
    No. 54498.
    Supreme Court of Mississippi.
    Dec. 5, 1984.
    Thomas J. Lowe, Jr., Jackson, for appellants.
    David W. Mockbee, Jones, Mockbee & Bass, Jackson, Frank W. Hunger, Lake, Tindall, Hunger & Thackston, Greenville, for appellee.
   Appeal from Circuit Court, Washington County; B.B. Wilkes, Judge.

Before WALKER, P.J., and BOWLING and PRATHER, JJ.

AFFIRMED.


text:
    Judy Hunter LOTT (Shine) v. David Lee SHINE.
    No. 54521.
    Supreme Court of Mississippi.
    Dec. 5, 1984.
    V.T. Valias, Jackson, for appellant.
    William L. Colbert, Jr., Jackson, for ap-pellee.
   . Appeal from Chancery Court, Hinds County; Paul G. Alexander, Chancellor.

Before PATTERSON, C.J., and DAN M. LEE and ROBERTSON, JJ.

AFFIRMED.


text:
    O.K. MABRY, et ux. v. STEPHENS, INC., Stephens Funeral Home, Inc., V.E. Stephens, Charles E. Stephens and Marl Cobler.
    No. 54466.
    Supreme Court of Mississippi.
    Dec. 5, 1984.
    Stanford Young, Waynesboro, for appellant.
    Arlo Temple, Meridian, for appellees.
   Appeal from Circuit Court, Lauderdale County; Lester F. Williamson, Judge.

Before BOWLING, HAWKINS and SULLIVAN, JJ.

AFFIRMED.


text:
    Freddie HAMPTON v. STATE of Mississippi.
    No. 54513.
    Supreme Court of Mississippi.
    Dec. 5, 1984.
    Wendell Hobdy Bryan, II, Amory, for appellant.
    Bill Allain, Atty. Gen. by Carolyn B. Mills, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Monroe County; Fred Wicker and Neal Biggers, Judges.

Before WALKER, P.J., and BOWLING and PRATHER, JJ.

REVERSED AND REMANDED.

PATTERSON, C.J., ROY NOBLE LEE, P.J., and HAWKINS, DAN M. LEE, ROBERTSON and SULLIVAN, JJ., concur.


text:
    Joe Allen BROOME v. STATE of Mississippi.
    No. 55279.
    Supreme Court of Mississippi.
    Dec. 5, 1984.
    Frank H. Coxwell, III, Merrida P. Cox-well, Jr., Jackson, for appellant.
    Edwin Lloyd Pittman, Atty. Gen. by Robert D. Findley, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Hinds County; L. Breland Hilburn, Judge.

Before WALKER, P.J., and BOWLING and PRATHER, JJ.

AFFIRMED.

PATTERSON, C.J., ROY NOBLE LEE, P.J., and HAWKINS, DAN M. LEE, ROBERTSON and SULLIVAN, JJ., concur..


author: PER CURIAM. SHORES, Justice BEATTY, Justice

text:
    Huey MEEKS v. OPP COTTON MILLS, INC. et al.
    82-1288.
    Supreme Court of Alabama.
    Sept. 7, 1984.
    Rehearing Denied Nov. 9, 1984.
    Frank J. Tipler, Jr. of Tipler & Fuller, Andalusia, and James Harvey Tipler of Ti-pler & Tipler, Malibu, Cal., for appellant.
    W. Michael Atchison, J. Bentley Owens III, of Starnes & Atchison, Birmingham, and J.M. Albritton of Albrittons & Givhan, Andalusia, for appellees.
    Rodney A. Max, of Denaburg, Schoel, Meyerson, Ogle, Zarzaur & Max, Birmingham, for amicus curiae Alabama Trial Lawyers Assn.
    Alan C. Livingston, Dothan, for amicus curiae Alabama Defense Lawyers Ass’n.
   PER CURIAM.

Plaintiff, Huey Meeks, requests this Court to change the employee-at-will doctrine and allow him to sue his former employer for dismissing him because he filed a workmen’s compensation claim. The trial court granted defendant’s motion to dismiss.

This Court on numerous recent occasions has declined to modify the employee-at-will doctrine. Kitsos v. Mobile Gas Service Corp., 431 So.2d 1150 (Ala. 1983); Meredith v. C.E. Walther, Inc., 422 So.2d 761 (Ala.1982); Bender Ship Repair, Inc. v. Stevens, 379 So.2d 594 (Ala.1980); Martin v. Tapley, 360 So.2d 708 (Ala.1978); Hinrichs v. Tranquilaire Hospital, 352 So.2d 1130 (Ala.1977). We note that after the decision in Bender Ship Repair, the legislature passed the law codified at Code 1975, § 12-16-8.1 (1983 Supp.), which prohibits an employer from discharging an employee for serving on a jury and provides an employee so discharged with an action for damages.

Nothing in the record before us persuades us to deviate from the steadfastly followed rule that an employee at will may be discharged for no reason or any reason, including a “wrong” reason. The judgment of the trial court dismissing the complaint is affirmed.

AFFIRMED.

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

SHORES, J., concurs specially.

BEATTY, J., dissents with opinion, in which FAULKNER, JONES, and ADAMS, JJ., concur.

SHORES, Justice

(concurring specially):

My dissenting brothers emphasize that Hinrichs v. Tranquilaire Hospital, 352 So.2d 1130 (Ala.1977), was decided “almost seven years ago”, and they say, “It is time for this Court to reevaluate the position it took there.” I ask, why? The Court refused to change the rule in Hinrichs, although three members of the Court, including this writer, implored the Court to make a public policy exception to the “at will” rule, under facts that were as compelling as those presented here, if not more so.

Hinrichs was decided in 1977 and reaffirmed a seventy-year-old rule. The Court was asked to change the rule again and refused to do so in the following years:

1979 Bierley v. American Cast Iron Pipe Co. 374 So.2d 1341

Newby v. City of Andalusia 376 So.2d 1374

1980 Bender Ship Repair, Inc. v. Stevens 379 So.2d 594

Carver v. Metrobank, 386 So.2d 737

1981 Tripp v. Hall, 395 So.2d 33 Davis v. Marshall, 404 So.2d 642

1982 Meredith v. C.E. Walther, Inc. 422 So.2d 761

1983 Kitsos v. Mobile Gas Service Corp. 431 So.2d 1150

Thus, the Court has refused to change the rule in almost every year since it was reaffirmed in Hinrichs, and each member of the Court has joined in those decisions, including the three dissenters in Hinrichs. Why, then, is this the opportune time for the Court to change the rule? I continue to believe that the rule is harsh in some of its applications, as indicated by my dissent in Hinrichs, and I agree that a more equitable rule could be formulated. But I also believe that stability in the law is more desirable in some instances than equity. The only reason offered for changing the rule in 1984 is exactly the same reason that was rejected in each of the preceding years listed above by a majority of this Court.

We left it to the legislature to change the harshness of the rule announced in Bender, and that was the case where the judiciary should have been vitally concerned, where the employee was discharged for serving on the grand jury. Why then should we not leave it to the legislature to change the rule in this case, where the employee was discharged allegedly for seeking workmen’s compensation benefits, a legislatively created right? Or, should we hold, as my dissenting brothers seem to suggest, that the Court will fashion a rule to avoid the harshness when a legislative right is involved, but leave it to the legislature to fashion a remedy where judicial functions are involved?

For these reasons, I join the majority.

BEATTY, Justice

(dissenting):

The facts in this case should compel this Court to recognize a narrow public policy exception to the employment-at-will rule and allow the plaintiff to proceed with his action against his former employer.

The employment-at-will rule provides that, unless the employment contract sets a specific term or states otherwise, an employment contract is “at will” and may be terminated by either the employer or the employee “with or without cause or justification. This means a good reason, a wrong reason, or no reason.” Hinrichs v. Tranquilaire Hospital, 352 So.2d 1130, 1131 (Ala.1977). The rule was widely adopted by the American courts in the late nineteenth and early twentieth centuries, at the same time that the philosophy of laissez faire and the freedom-of-contract ideology were gaining acceptance. See generally, Note, Protecting Employees At Will Against Wrongful Discharge: The Public Policy Exception, 96 Harv.L.Rev. 1931 (1983). On its face, the rule applies equally to employers and employees. As a practical matter, however, it weighs heavily in favor of the employer and it is easy to see why it “was ideally suited to an economy that was rapidly, industrializing.” Id. at 1933.

As society and the business environment change, however, more and more courts are modifying or recognizing exceptions to the employment-at-will rule. The United States Court of Appeals for the Third Circuit last year noted that “[ajlready 29 states have granted some form of common law exceptions to the [employment-]at-will doctrine; in addition, the courts of five other states as well as the District of Columbia have indicated their willingness to do so.” Novosel v. Nationwide Ins. Co., 721 F.2d 894 (3d Cir.1983). “The most widely accepted limitation on the rule of at-will employment has been the ‘public policy exception,’ under which an employee may recover damages from her employer if she is fired for reasons that undermine an important public policy.” Note, 96 Harv.L. Rev. at 1931-32.

The employment-at-will doctrine was first adopted in this state in 1891 in Howard v. East Tennessee, V. & G. Ry., 91 Ala. 268, 8 So. 868 (1891). Since that time it has acquired a stranglehold on this Court. In case after case, we have denied any cause of action based on wrongful discharge, blindly applying the rule without questioning its limitations or its validity in today’s society. Admittedly, the rule does provide a means of easy disposition. However, neither this nor the fact that we might “overrule nearly [100] years of existing Alabama case law,” Hinrichs, 352 So.2d at 1132, is sufficient reason to continue our blind adherence to an anachronistic rule without a thorough reevaluation of that rule.

To be sure, we did note in Hinrichs that the plaintiff sought the adoption of a public policy exception. However, we declined to recognize the exception, stating that “ ‘contrary to public policy’ is too nebulous a standard to justify its adoption.” 352 So.2d at 1131. Clearly, the modern trend is to adopt this exception. Other courts are obviously finding “contrary to public policy” a workable standard. We decided Hin-richs almost seven years ago. It is time for this Court to reevaluate the position it took there.

The employment-at-will rule is not set indelibly in stone. It is a part of the common law, judicially created, and within the power of judicial reform. See, Lloyd v. Service Corp. of Alabama, 453 So.2d 735 (Ala.1984). Thus, there is no reason to treat it as though it has the strength of legislation. As Justice Faulkner recently pointed out in Buchanan v. Merger Enterprises, Inc., [August 24, 1984] — So.2d -(Ala.1984):

“ ‘Inherent in the common law is a dynamic principle which allows it to grow and to tailor itself to meet changing needs within the doctrine of stare decisis, which, if correctly understood, was not static and did not forever prevent the courts from reversing themselves or from applying principles of common law to new situations as the need arose. If this were not so, we must succumb to a rule that a judge should let others ‘long dead and unaware of the problems of the age in which he lives, do his thinking for him.’ ...”

Quoting Lewis v. Wolf, 122 Ariz. 567, 568, 596 P.2d 705, 706 (1979).

Recently, a majority of this Court has twice modified common law principles. In Lloyd, supra, we held that where

“a lessee can show that an exculpatory provision in a residential lease contract is in fact an unconscionable one, due to a prodigious amount of bargaining power on behalf of the lessor, which is used to the lessor’s advantage, causing a great hardship and risk to the lessee, the contract provisions, or the contract as a whole, if not separable, is void on the grounds that the provision is contrary to public policy.” (Emphasis added.)

In Buchanan, supra, we recognized a tort action against an establishment that sells liquor to an obviously intoxicated person when that person, upon leaving the establishment, causes the death of someone else. Both of these cases departed from the existing common law of this state, but the results were firmly grounded on the dictates of public policy. The employment-at-will rule is yet another area in which there is a great need for judicial reform.

The present case involves an employee who was discharged for merely filing a workmen’s compensation claim expressly authorized by legislative act! See also, Martin v. Tapley, 360 So.2d 708 (Ala.1978). In five cases directly on point, “courts have recognized tort action for wrongful discharge of an employee in retaliation for his filing of a workmen’s compensation claim, a reason which constituted a violation of public policy.” Leach v. Lauhoff Grain Co., 51 Ill.App.3d 1022, 9 Ill.Dec. 634, 637, 366 N.E.2d 1145, 1148 (1977); Frampton v. Central Indiana Gas Co., 260 Ind. 249, 297 N.E.2d 425 (1973); Murphy v. City of Topeka-Shawnee County Dept. of Labor Services, 6 Kan.App.2d 488, 630 P.2d 186 (1981); Sventko v. Kroger Co., 69 Mich. App. 644, 245 N.W.2d 151 (1976); Shanholtz v. Monongahela Power Co., 270 S.E.2d 178 (W.Va.1980). See also Kelsay v. Motorola, Inc., 74 Ill.2d 172, 23 Ill.Dec. 559, 384 N.E.2d 353 (1978); Lally v. Copygraphics, 85 N.J. 668, 428 A.2d 1317 (1981); Brown v. Transcon Lines, 284 Or. 597, 588 P.2d 1087 (1978). In each case, the court looked to the purpose and goals of the state’s workmen’s compensation statutes and found that there existed a “strong public policy to provide financial and medical benefits to the victims of work-related injuries.” Leach, 9 Ill.Dec. at 637, 366 N.E.2d at 1148.

The Sventko court noted:

“Discouraging the fulfillment of the legislative policy by use of the most powerful weapon at the disposal of the employer, termination of employment, is obviously against the public policy of our state. Justice T.E. Brennan, dissenting in Whetro [v. Awkerman, 383 Mich. 235], said at 249, 174 N.W.2d [783] at 787:

“ ‘The function of the workmen’s compensation act is to place the financial burden of industrial injuries upon the industries themselves, and spread that cost ultimately among the consumers.
“ ‘This humane legislation was developed because the industrialization of our civilization had left in its wake a trail of broken bodies.
“ ‘Employers were absolved from general liability for negligence, in exchange for the imposition of more certain liability under the act.’
“The trail of broken bodies endures and increases with time. Employers who find themselves located on that trail are eager to take advantage of the freedom from general liability provided by the act. An employer cannot accept that benefit for himself and yet attempt to prevent the application of the act to the work-related injuries of his employees without acting in direct contravention of public policy. This Court cannot tolerate such conduct.” 245 N.W.2d at 153-154.

Our workmen’s compensation statutes have much the same purpose as the statutory schemes in the cases cited above. I would adopt the reasoning of those courts and grant Meeks an opportunity to present his case.

This position is supported by Martin v. Republic Steel Co., 226 Ala. 209, 146 So. 276 (1933), in which this Court held that a clause in an employment contract wherein the employee agreed to hold the employer harmless for injuries sustained could not “shield the [employer] from liability” under the workmen’s compensation statutes. 226 Ala. at 212, 146 So. 276. In other words, the employer may not, by the terms of the employment contract, deny the employee his statutory right to file a claim for workmen’s compensation. This holding was obviously based on public policy considerations. The public policy of this state being to provide compensation to injured employees, employers may not subvert this policy by private contract. Extending this principle to the present situation, this Court should hold that the employment at will rule may not be used to subvert an employee’s right to file a claim under the workmen’s compensation statutes. Whatever might be said of the general right to fire at will, the employer cannot exercise that prerogative so as to needlessly chill the employee’s exercise of his statutory right to compensation.

The employment-at-will rule has already been abrogated to some extent by a majority of this Court in Ex parte Kimberly-Clark Corp., 449 So.2d 794 (Ala.1983). In that case, the plaintiff brought a malicious prosecution suit against his former employer. The majority stated that an employer has an absolute right to terminate an employee at will for any reason, but then went on to allow the plaintiff to recover lost wages as damages. Both the majority opinion and the special concurrence justified this decision on the basis that the plaintiff/employee had brought a malicious prosecution action. However, the end result was to allow “the employee at will to recover wages which the employee clearly could not have earned simply because he had been discharged by an employer who had the legal right to terminate his employment for any reason.” 449 So.2d at 796 (Beatty, J., dissenting).

Having held in Kimberly-Clark that a plaintiff can recover lost wages that he would not, under the employment-at-will rule be entitled to, this Court should go further and allow a cause of action for wrongful discharge in violation of public policy. To refuse to do so allows only those employees who were discharged, criminally prosecuted by their former employers, and acquitted to recover lost wages.

I am not advocating the abolition of the employment-at-will doctrine; I am merely urging the adoption of a narrow public policy exception to that rule. As the Leach court noted, this would “not abrogate the employer’s right to discharge employees at will without cause in cases where no clear mandate of public policy is involved.” 9 Ill.Dec. at 637, 366 N.E.2d at 1148.

For the reasons stated above, I respectfully dissent.

FAULKNER, JONES and ADAMS, JJ., concur.


author: EMBRY, Justice. TORBERT, Chief Justice

text:
    M.C. SKELTON & Mrs. M.C. Skelton v. DRUID CITY HOSPITAL BOARD.
    83-474.
    Supreme Court of Alabama.
    Sept. 7, 1984.
    Rehearing Denied Nov. 9, 1984.

      Edward P. Morgan, Tuscaloosa, for appellants.
    McCoy Davidson of Roberts, Davidson, Wiggins & Davis, Tuscaloosa, for appellee.
    Sydney Lavender and Bruce H. Wynn, of Johnston, Barton, Proctor, Swedlaw & Naff, Birmingham, for amicus curiae The Alabama Hospital Ass’n.
    Lloyd W. Gathings, Birmingham, for amicus curiae The Alabama Trial Lawyers Ass’n.
   EMBRY, Justice.

This is an appeal occasioned by the grant of a partial summary judgment, made final pursuant to Rule 54(b), ARCP, in favor of Druid City Hospital Board (Druid City), a public hospital which serves the city and county of Tuscaloosa, Alabama. Druid City is one of five defendants named by Mr. and Mrs. M.C. Skelton in an action which arose from Mr. Skelton’s alleged injury during a ventral hernia repair performed at that hospital. The Skeltons also claim damages for personal injuries against James H. Thomas, M.D., Anchor Manufacturing Company, Durr-Fillauer Medical, Inc., and Jimmy Thomas.

Count I of the Skeltons’ complaint asserts that while M.C. Skelton was a patient at Druid City Hospital in Tuscaloosa, a surgical procedure was performed on Skel-ton by James H. Thomas, M.D. During the surgical procedure, a suturing needle being used by Dr. Thomas broke in Skelton’s body, where part of it remains. Count I asserts negligence in the performance of their respective duties against all defendants.

Count II of the complaint claims damages for Mrs. Skelton as a result of her husband’s injury.

Count III, the portion of the complaint that is the subject of summary judgment in favor of Druid City, asserts that Druid City Hospital Board, Anchor Manufacturing Company, Inc., Durr-Fillauer Medical, Inc., and Jimmy Thomas all impliedly warranted that the suturing needle which broke off in Skelton’s body was fit for its intended purpose when sold or distributed to Skelton by such defendants. It further states the needle was not fit for its intended purpose and that, as a direct result, Mr. Skelton was injured.

In response to the Skeltons’ complaint, Druid City filed a motion to dismiss or, in the alternative, a motion for summary judgment. Summary judgment was granted by the trial court in Druid City’s favor as to count III.

The Facts

Prior to a full discussion of the issue presented, and in order to clarify the circumstances from which this case arose, it is necessary to set out a few relevant facts.

First, a clarification regarding the parties involved is in order. Anchor Manufacturing Company is claimed by the plaintiffs to be the manufacturer of the suturing needle which broke during Skelton’s surgery. Durr-Fillauer is a distributor of surgical products. After obtaining needles from Anchor Manufacturing Company, Durr-Fillauer allegedly sold them to Druid City. Its salesperson, Jimmy Thomas, “called on” the hospital.

In opposition to Drnid City’s motion for summary judgment, plaintiffs presented the deposition of Mrs. Jane Sanders, the supervising nurse in Druid City’s operating room. She testified regarding the care and use of suturing needles of the type involved in this case. Sanders stated she generally kept 12 dozen six packs of the suturing needles on hand (864 needles) for surgical procedures in the operating room. The needles were, she said, designed to be reuseable and were sanitized between uses by nurses on the 3:00 to 11:00 P.M. shift. Those nurses were responsible for inspecting the needles and replacing those that had become bent or dull. Sanders approximated that each needle was used for six or eight operations, but stated that the hospital had no way of determining how many times a specific needle had been used because the needles were not stored in any particular order.

Simply put, Druid City contends no implied warranty arose from its transaction with Skelton for which liability can be asserted. It relies mainly on the language of § 7-2-315, Code 1975, which provides as follows:

“Where the seller at the time of contracting has reason to know any particular purpose for which the goods are required and that the buyer is relying on the seller’s skill or judgment to select or furnish suitable goods, there is unless excluded or modified under the next section an implied warranty that the goods shall be fit for such purpose.”

Druid City successfully argued to the trial court that the Skeltons could not prevail under count III (alleging breach of implied warranty of fitness for particular purpose) because: (1) the hospital is in the business of providing a service to patients; it is not a “merchant” or a “seller” such that an implied warranty could arise from any transaction in goods between that institution and a patient; and (2) the suturing needle which broke off during Mr. Skel-ton’s surgery was merely equipment used incident to providing a “service”; there was no “sale” of that needle to Skelton from which an implied warranty could arise.

The Skeltons argue on appeal to this court that Druid City did not meet its burden of proof as to the nonexistence of a genuine issue as to a material fact in support of the Skelton’s implied warranty claims. Therefore, they contend, the trial court erroneously determined summary judgment appropriate regarding their claim that Druid City is guilty of breach of an implied warranty of fitness for a particular purpose of the suturing needle used during Mr. Skelton’s ventral hernia repair.

The Skeltons insist that the Official Comments to § 7-2-315, and various other provisions of the Commercial Code indicate that section is to be liberally construed and supplemented by common law. They contend that, under both the statute and common law, such a warranty has arisen. Two of the provisions they rely on are as follows:

“Although this section is limited in its scope and direct purposes to warranties made by the seller to the buyer as part of a contract for sale, the warranty sections of this Article are not designed in any way to disturb those lines of case law growth which have recognized that warranties need not be confined to sales contracts or to the direct parties to such a contract.... Beyond that, the matter is left to the case law with the intention that the policies of this Act may offer useful guidance in dealing with further cases as they arise.” (Emphasis added.)

Official Comment, § 7-2-313, Code 1975. “(1) This title shall be liberally construed and applied to promote its underlying purposes and policies.

“(2) Underlying purposes and policies of this title are:

“(a) To simplify, clarify and modernize the law governing commercial transactions;” (Emphasis added.)

§ 7-1-102, Code 1975.

For guidance in disposing of the issues presented by the factual circumstances of this case, we have considered the above and other provisions of the Commercial Code and cases which have arisen out of similar factual circumstances. For the reasons stated below, we reverse.

I

First, we consider the applicability of § 7-2-315 to the transaction between Mr. Skelton and Druid City. (We need not reach Skelton’s contention that an implied warranty has arisen under the common law.)

Druid City attempts to define that transaction as wholly consisting of a “service” to Skelton. We do not agree with that characterization. It can make no serious contention that Skelton did not pay for the use of the suturing needle, or that patients generally do not buy supplies and pay charges for equipment used in the course of their treatment.

Because of the nature of the re-use of the suturing needle at issue here, we do agree with Druid City that there was no “sale” of the needle to Skelton. Rather, the instant transaction is more akin to a lease or rental of equipment than a sale. That does not, however, preclude an implied warranty of fitness for a particular purpose from arising from the transaction.

Article 2 of the Uniform Commercial Code applies, by its terms, to “transactions in goods.” Section 7-2-102, Code 1975. That phrase is left undefined by the Code, but a number of courts have held there is significance in the use of the term “transaction” rather than “sale.” In light of the statement in the Official Comment to § 7-2-313, that the warranty sections of Article 2 “need not be confined to sales contracts,” we opine our legislature intended that § 7-2-315 be broadly interpreted to include transactions in which there is no actual transfer of title, such as rental and lease transactions. Numerous courts have so held. See, i.e., W.E. Johnson Equipment Co. v. United Airlines, Inc., 238 So.2d 98, 101 (Fla.1970); Baker v. City of Seattle, 79 Wash.2d 198, 484 P.2d 405 (1971); Quality Acceptance Corp. v. Million & Albers, Inc., 367 F.Supp. 771, 773 (D.Wyo.1973); Fairfield Lease Corp. v. Commodore Cosmetique, Inc., 7 U.C.C. Rep.Serv. 164 (N.Y.Civ.Ct.1979); and Fairfield Lease Corp. v. U-Vend, Inc., 14 U.C. C.Rep.Serv. 1244, 1246 (N.J.1974); and All States Leasing Co. v. Bass, 96 Idaho 873, 538 P.2d 1177 (1975).

Therefore, we conclude the transaction here involved is both a service transaction and a “transaction in goods.” This court has previously addressed the issue whether implied warranties arise from “mixed” or “hybrid” agreements, those that involve both a sale of goods and a rendering of services. In Caldwell v. Brown Service Funeral Home, 345 So.2d 1341 (Ala.1977), the plaintiffs sought the service of a funeral home for the burial of their eight-year-old son. They signed a statement for the services and for a casket and vault in the aggregate sum of $860. Because the vault provided by the funeral home was too small for the casket, graveside services had to be conducted twice.

The plaintiffs sued on a theory of implied warranty of fitness and the trial court granted summary judgment in favor of the funeral home as to the implied warranty claims. The funeral home argued it had merely provided a “service” for the plaintiffs and, therefore, no warranty could have arisen. Reversing that court’s judgment, we stated:

“Here the funeral home knew that the Caldwells were purchasing a vault for the casket of their son, and that they were relying on the seller’s judgment to furnish suitable goods. As a professional in this business, the seller could be expected to be aware of any size requirements for the vault to hold the casket which the seller also sold. This implied warranty of fitness was neither excluded nor modified in any way by the funeral home. Moreover, under § 2-715 of Title 7A, the Caldwells may be entitled to incidental and consequential damages resulting from the funeral home’s breach.”

345 So.2d 1342.

The Caldwell case cannot be distinguished from the present case regarding the issue whether the provider of a service can be held liable under § 7-2-315. In both cases the plaintiffs went to the defendants seeking services and products necessary to those services; and in both eases the plaintiffs were submitted a total bill for the products and the services. In both cases the plaintiffs were injured by the products sold with the services, and in both cases the plaintiffs relied upon the skills and expertise of the defendants in selecting the involved products. This same approach to “hybrid” transactions has been adopted by other courts.

In Newark v. Gimbel’s, Inc., 54 N.J. 585, 258 A.2d 697 (1969), the court found an implied warranty of fitness where a beauty parlor operator administered a permanent wave solution which injured a patron. It stated:

“A beauty parlor operator in soliciting patronage assures the public that he or she possesses adequate knowledge and skill to do the things and to apply the solution necessary to produce the permanent wave in the hair of the customer. When a patron responds to the solicitation she does so confident that any product used in the shops has come from a reliable origin and can be trusted not to injure her. She places herself in the hands of the operator relying upon his or her expertise both in the selection of the products to be used on her and in the method of using them. The administrations and the products employed on her are under the control and selection of the operator; the patron is a mere passive recipient.”

258 A.2d at 701-702.

In Berry v. G.D. Searle & Co., 56 Ill.2d 54, 309 N.E.2d 550 (1974), the plaintiff suffered a stroke from birth control pills distributed by a Planned Parenthood Clinic. The Illinois Supreme Court rejected the conclusion that Planned Parenthood Association was merely performing an incidental service in distributing the drugs and was not engaged in selling these items. It subjected the clinic to implied warranty liability under the Uniform Commercial Code.

In Mauran v. Mary Fletcher Hospital, 318 F.Supp. 297 (D.Vt.1970), implied warranty liability was imposed where a patient was injured when insulin was administered instead of preoperative medicine. That court stated: “[T]he fact that the sale of anesthesia here is a minimal element in the overall transaction does not mean that there cannot be a sale in the administration of anesthesia.” See also Shaffer v. Victoria Station, 91 Wash.2d 295, 588 P.2d 233 (1978); and Providence Hospital v. Truly, 30 U.C.C.Rep.Serv. 785, 611 S.W.2d 127 (Tex.Ct.Civ.App.1980).

Based on the above cited precedents regarding the application of U.C.C. § 2-315, and this court’s prior construction of the language employed by the legislature in our § 7-2-315, we conclude Druid City is a “seller” of goods within its meaning.

II

Druid City further claims that, even if it is a “seller” of goods, because of its status as a hospital, it is not a “merchant” as defined and required by the provisions of the Code and has not held itself out as having “knowledge or skill peculiar to the practices or goods involved in the transaction.” We find that claim untenable for several reasons.

First, the definition of “merchant” in the Code is a broad definition which does not exclude institutions such as hospitals.

“ ‘Merchant’ means a person who deals in goods of the kind or otherwise by his occupation holds himself out as having knowledge or skill peculiar to the practices or goods involved in the transaction or to whom such knowledge or skill may be attributed by his employment of an agent or broker or other intermediary who by his occupation holds himself out as having such knowledge or skill.”

§ 7-2-104(1), Code 1975.

We cannot ignore the fact that hospitals, whether profitable or not, are businesses. They are not merely buildings which provide housing for the seriously-ill patients or independent physicians.

In the course of their competition, hospitals certainly hold themselves out to the public as having special knowledge regard-. ing the provision of medical services to patients. Inherent in this presentment is a warranty that the hospital will sell, furnish, or supply patients with goods for use in the provision of medical services which are fit for their intended purpose. For that reason, Druid City is clearly a “merchant,” within the Commercial Code’s definition of that word.

Assuming, arguendo, that this court determined that Druid City is not a “merchant,” it would still be liable under U.C.C. § 2-315 because of the nature of the patient’s reliance’ on the skill and judgment of the hospital in the selection of medical supplies used for the care of the patient. Comment 4 to § 7-2-815 states:

“Although normally the warranty will arise only where the seller is a merchant with the appropriate ‘skill or judgment,’ it can arise as to nonmerchants where this is justified by the particular circumstances.”

The gist of an action under this section is reliance. Patients are rarely in a position to judge the quality of the medical supplies and other goods sold to them and used in their care; often, those supplies are of an inherently dangerous nature. The complete dependence of patients on the staff of a hospital to choose fit products for their care justifies the imposition of an implied warranty under § 7-2-315, whether the hospital is a “merchant” or not.

Ill

Finally, we note that, were this court to exclude hospitals from the implied warranty provisions of the Code based on the arguments presented by Druid City, the effects would be far-reaching. The hospital’s theory would, for example, create an exemption from § 7-2-315 for the service department of an automobile repair shop which installs defective brakes on a car. Assume that same business had a'parts department which sold a consumer defective brakes to be installed by the consumer. Under Druid City’s rationale, it would be liable under § 7-2-315. We conclude the legislature adopted § 7-2-315 in anticipation of both situations.

That conclusion is further substantiated by the evidentiary problems which would arise from any other treatment of the hybrid sale/service transaction. For instance, release of the hospital from liability for breach of implied warranty would break the chain of the passage of the needle from the manufacturer to Skelton. The result would be that the manufacturer and the distributor of the needle could, at trial, attempt to “scapegoat” the hospital. In the instant case, the facts indicate the hospital claims to inspect the suturing needles before turning them over to surgeons for use. The hospital is, therefore, the only party defendant to the claim of breach of warranty that can rule out the possibility it has misused the needle. If this court were to release the hospital from responsibility on that count, it would make the burden of proof for the plaintiff onerous by creating an “empty chair” at the defense table.

For the above reasons, we hold the trial court erred in granting summary judgment in favor of Druid City Hospital Board on count III of the plaintiffs’ complaint alleging breach of an implied warranty. The judgment entered by that court is due to be, and is hereby, reversed, and this cause is remanded to that court for further proceedings in accordance with this opinion.

REVERSED AND REMANDED.

FAULKNER, JONES, ALMON, and ADAMS, JJ., concur.

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

BEATTY, J., not sitting.

TORBERT, Chief Justice

(concurring specially).

The majority concludes that the agreement between Druid City Hospital Board (Druid City) and Skelton for the performance of a ventral hernia repair operation was a transaction involving “both a service transaction and a transaction in goods” and thereby giving rise to an implied warranty of fitness for a particular purpose under Code 1975, § 7-2-315.

The majority is correct in its holding that this court has previously addressed the issue of whether implied warranties arise from mixed or hybrid agreements. In Caldwell v. Brown Service Funeral Home, 345 So.2d 1341 (Ala.1977), the plaintiffs sought the services of a funeral home following the death of their son. They entered into an agreement with the funeral home for the rendering of graveside services and for the purchase of a casket and a vault. Following the graveside services, it was discovered that the vault was too small, and, as a result, the graveside services had to be conducted a second time the next day. The plaintiffs sued the funeral home on a theory of breach of implied warranty of fitness. The funeral home argued that it had merely provided the plaintiffs a service and therefore that no implied warranty had arisen. The trial court granted summary judgment in favor of the funeral home on the implied warranty claim. Reversing the summary judgment, we held that the funeral home knew the plaintiffs were relying on the funeral home’s judgment to secure suitable goods, i.e., a casket and vault, and that the funeral home could be expected to be aware of any difference in size between the vaults and the caskets which it sold. There was thus an implied warranty of fitness for the breach of which the plaintiffs might have been entitled to recover incidental and consequential damages.

The determinative issue in this case, however, is not whether mixed or hybrid agreements give rise to the Uniform Commercial Code (U.C.C.) implied warranties, but rather how agreements involving both a transaction in goods and a rendering of services are to be classified so that it may then be determined whether the U.C.C. implied warranties apply.

In Bonebrake v. Cox, 499 F.2d 951 (8th Cir.1974), the Eighth Circuit Court of Appeals, in an appeal from an adjudication on the merits following a bench trial, reached the conclusion that a contract to supply and install bowling equipment was predominantly a transaction in goods, even though the amount of services involved was substantial. Therefore, the U.C.C. was held to be applicable to the transaction. The court, in making its determination, stated:

“The test for inclusion or exclusion [of agreements in, or from, the provisions of the U.C.C.] is not whether they are mixed, but, granting that they are mixed, whether their predominant factor, their thrust, their purpose, reasonably stated, is the rendition of service, with goods incidentally involved (e.g., contract with artist for painting) or is a transaction of sale, with labor incidentally involved (e.g., installation of a water heater in a bathroom).”

499 F.2d at 960.

In Coakley & Williams, Inc. v. Shatterproof Glass Corp., 706 F.2d 456 (4th Cir. 1983), the Fourth Circuit Court of Appeals reversed a district court’s grant of a Rule 12(b)(6), F.R.Civ.P., motion dismissing the plaintiff builder’s cause of action alleging breach of implied warranties of merchantability and fitness for a particular purpose. The Court of Appeals noted that the fact-finder could have reasonably concluded that a contract between the builder and the company which installed windows predominantly concerned a sale of goods rather than services and, consequently, was governed by Maryland’s enactment of the Uniform Commercial Code.

In Pitler v. Michael Reese Hospital, 92 Ill.App.3d 739, 47 Ill.Dec. 942, 415 N.E.2d 1255 (1980), the plaintiff brought an action against the hospital, on a theory of breach of implied warranty, for personal injuries arising from radiation treatments. The Illinois Appellate Court rejected the plaintiffs argument that the U.C.C. governed the hospital’s administration of medical care and held that Article 2 of the Code was inapplicable because the transaction predominantly involved the rendering of services, even though equipment was furnished in connection with those services.

The U.C.C. was also held not to apply to a mixed contract primarily for the rendering of services in Ranger Construction Co. v. Dixie Floor Co., 433 F.Supp. 442 (D.S.C.1977). There, the defendant agreed to provide all the labor and materials necessary to the installation of resilient flooring. The court, in holding the Code inapplicable, noted that the defendant was primarily a service oriented business and that the contract was basically one for the performance of services. Any sale of goods necessary to the performance of those services was merely incidental.

Whether a warranty of fitness for a particular purpose arises under Code 1975, § 7-2-315, is basically a question of fact to be determined by the circumstances. Smith v. Crosrol, Inc., 498 F.Supp. 697 (M.D.Ala.1980) (citing official comment to Code 1975, § 7-2-315). In the case at bar, the question as to whether or not the circumstances present give rise to an implied warranty of fitness can only be resolved by first determining whether the agreement between Druid City and Skelton was predominantly an agreement for services, in which case the U.C.C. would not be applicable, or for a transaction in goods, in which case the U.C.C. would be applicable.

For the foregoing reasons, I concur in the reversal of the summary judgment.

MADDOX and SHORES, JJ., concur.

      . Some courts have discarded the notion that hospitals are only liable under the theory of respondeat superior, to hold that hospitals have an independent affirmative duty of care owed directly to the patient. See Pedroza v. Bryant, 101 Wash. 226, 677 P.2d 166 (1984), where the Washington Supreme Court adopted a corporate negligence doctrine, establishing that hospitals owe patients an independent duty to use care in selecting staff members and supervising the quality of treatment rendered by staff members to all hospital patients within the hospital’s facilities.

      . To exclude the party that has provided goods plus a service for á set price from liability under § 7-2-315 is not logical because that party has an incentive — the maximization of profit — to use inferior goods.


author: EMBRY, Justice.

text:
    Ex parte M.C. SKELTON and Mrs. M.C. Skelton. (In re M.C. SKELTON and Mrs. M.C. Skelton v. DRUID CITY HOSPITAL BOARD, etc., et al.)
    83-959.
    Supreme Court of Alabama.
    Sept. 7, 1984.

      Edward F. Morgan, Tuscaloosa, for petitioners.
    Hugh W. Roberts, Jr. of Roberts, Davidson & Wiggins, Tuscaloosa, for James H. Thomas.
   EMBRY, Justice.

This is a petition for writ of mandamus which raises the issue whether the trial court erred in ordering, pursuant to Rule 42, ARCP, a separate trial as to Dr. James H. Thomas, one of several defendants to a personal injury action.

The trial court, in response, cites a number of factual circumstances on which it grounded its order for separate trials. It states those circumstances as follows:

“(1) The case against Dr. Thomas has been pending for 3¾⅛ years; (2) Discovery as to Dr. Thomas has been complete for 2 years; (3) Plaintiff’s Appeal of Druid City Hospital’s Motion for Summary judgment, though not dealing with Dr. Thomas, nevertheless further postpones Dr. Thomas’ opportunity to have his case tried in court; (4) It is unknown what effect the Appeal will have on the case as to the remaining Defendants; and perhaps more importantly, (5) Dr. Thomas is a professional man whose reputation within the West Alabama community is essential to his conducting a medical practice.... ”

Because of this court’s simultaneous rendering of a decision concerning the trial court’s grant of partial summary judgment as to Druid City Hospital Board, Skelton v. Druid City Hospital Board, 459 So.2d 818 (Ala.1984), that appeal will have no further effect on Dr. Thomas. The remaining grounds stated by the trial court appear to concern inconvenience to Dr. Thomas caused by delay.

Rule 42(b), ARCP, provides that the trial court can order separate trials “in the furtherance of convenience or to avoid prejudice, or when separate trials will be conducive to expedition and economy." The trial court does not cite prejudice to Thomas as a ground for its order granting his motion for a’ separate trial. The Committee Comments to Rule 42 state that separate trials are not to be granted merely because the parties involved might prefer separate trials. Rather, “[i]t is the interest of efficient judicial administration which is to be considered.” Committee Comments, Rule 42, ARCP. (Emphasis added.)

Dr. James H. Thomas is one of five de-' fendants to a count charging the combined and concurring negligence of all defendants as the proximate cause of M.C. Skel-ton’s injuries. In a case such as this, a separate trial should be granted only if it appears prejudice to a defendant or inconvenience to the trial court demands such treatment. That is because it could be extremely prejudicial to the plaintiff to allow separate trials in negligence cases where each jury in the separate trials could come to the conclusion that the plaintiff was injured by the negligence of the defendant not then on trial. We do not think Rule 42 contemplates placing such a burden oh the plaintiff in the absence of extreme prejudice to a defendant or inconvenience to the trial court.

For the above reasons, we issue the writ of mandamus and order that the trial court set aside its order of 28 May 1984 granting the motion of Dr. James H. Thomas for a separate trial.

WRIT GRANTED.

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

BEATTY, J., not sitting.


author: SHORES, Justice. BEATTY, Justice

text:
    ALABAMA POWER COMPANY and Asplundh Tree Expert Company v. James BONNER.
    82-1032.
    Supreme Court of Alabama.
    Sept. 14, 1984.
    Rehearing Denied Nov. 9, 1984.

      J. Garrison Thompson and Philip Henry Pitts of Pitts, Pitts & Thompson, Selma, for appellants.
    Wyman O. Gilmore, Grove Hill, and L.Y. Sadler, Jr., Camden, for appellee.
   SHORES, Justice.

This is an appeal by the defendants from a judgment for plaintiff based upon a jury verdict in the amount of $500,000.00.

Bonner, plaintiff, brought this action against Alabama Power Company (APCo) and Asplundh Tree Expert Company (As-plundh) to recover damages for wrongfully cutting timber on real property owned by Bonner in Wilcox County. The first claim alleged fraud on the part of APCo in making false representations to Bonner concerning the cutting of danger trees; the second claim was also based upon trespass in cutting timber upon plaintiffs real property. This trespass claim was later withdrawn by plaintiff. After motions to dismiss were overruled, APCo answered with a general denial, together with the defense of a legal right to cut timber because of an easement and order of condemnation. APCo also cross-claimed against Asplundh under an indemnity contract between As-plundh and APCo; this cross-claim was later withdrawn. Asplundh answered with a general denial and with assertion of a legal right to cut the trees within APCo’s right-of-way. The case arose out of the following facts:

Plaintiff James Bonner lives in Camden, Wilcox County, Alabama. He is the owner of real property in Section 30, Township 12 North, Range 8 East, which he has owned since 1973. In February 1981, Mr. Bonner received a letter, certified mail, return receipt requested, dated February 18, 1981, from APCo advising him that a clearing contractor was about to cut danger timber adjacent to Alabama Power’s right-of-way that crossed Mr. Bonner’s property, described as follows:

“PROPERTY DESCRIPTION
“Section(s) 29, 30, 32
“Township 12-N
“Range 8-E”

A danger tree is described in the record as timber outside the right-of-way that may injure or endanger the transmission line. APCo’s easement across Mr. Bonner’s land is 50 feet wide, 25 feet on each side of the transmission line.

The letter further stated, “We are notifying all property owners along this transmission line so that they may salvage any timber which will be cut on their property,” and stated that “[t]he contractor has been requested to do this work with as little inconvenience to you as possible.”

Mr. Bonner was the only individual designated to receive his letter by certified mail, return receipt requested. Letters had been written to others who owned property in Wilcox County in the same section, township, and range, approximately five weeks earlier, on January 15, 1981.

Mr. Bonner replied to the February 18, 1981, letter on February 20,1981, referring to “Right-of-Way. Sec. 29, 30, 32-T12N, R8E”, and stating:

“Dear Mr. Danner:
“Thank you for your letter dated 18 February 1981.
“Because of much damage done to my pasture, hayfield, fence, metal gate, etc., by your contractor (Asplundh) two or three years ago and the refusal of your Alabama Power Company official from Montgomery and your contractor, both who inspected this damage, to leave my pasture, hayfield, fence, and metal gate in the same repair they found my property — I hereby:
“1. Trespass the Alabama Power Company and its contractor or contractors from ‘committing trespass’ on my property.
“2. I request you have your Graduate Forester paint the right-of-way that crosses my property and mark any danger trees with paint on the tree and stump and personally supervise any cutting that crosses my property.
“3. Replace any fence you damage under the power line and restore any damage done to my real property.
“4. I will hold Alabama Power Company liable for any damage done to my personal or real property under the power line.
“You have waited until wet weather to ask to cross my property. That won’t work.
“Yours very truly,
“/s/ James Bonner
“ec: Donald L. Manning
“Camden, Al.”

Several weeks later, by letter dated March 11, 1981, John E. Danner replied to Bonner, again referring to the right-of-way as being in Sections 29, 30, 32, Township 12 North, Range 8 East, and stating:

“In response to your request, in your letter of February 20, 1981, to mark danger trees to be cut on your property, we have had such trees marked with yellow paint. The following is a list of trees so
marked:
“6 inch D.B.H. Pine - 2
“8 inch D.B.H. pine - 3
“10 inch D.B.H. pine - 2
“12 inch D.B.H. pine - 1
“TOTAL Number of Trees to be 8
Cut
“We will have our representative present when the trees are cut. He will make every effort to notify you when the cutting is done so that you may be present. All work will be done with the utmost care so that your property will not be damaged.
“After the trees have been cut, if you have any questions or problems, please contact this office.”

Mr. Danner testified that he wrote that letter, intending for Mr. Bonner to rely upon its contents. Mr. Bonner wanted to be notified so he could have his forester present to see that the trees were cut properly.

Mr. Bonner testified that no one from Alabama Power Company or from As-plundh Tree Expert Company contacted him prior to the cutting of the trees on the Bonner land. He first learned that trees had been cut when Billy Malone, an owner of land adjoining the Bonner land, told him.

Upon receiving notice of the cutting, about two or three weeks afterwards, Mr. Bonner went to his land and found that not just eight “danger trees” adjoining the 50-foot right-of-way had been cut, as he had been advised, but instead a 200-foot right-of-way had been “clear cut” across his property, six miles away from the property on which the eight trees had been marked. There was no selective cutting, but clear cutting approximately 200 feet wide through a 20- to 25-year-old pine plantation.

Mr. Bonner, upon discovering the extent of the cutting on his land, protested to the Alabama Power Company about the cutting of his pine plantation and the cutting of the other trees that were not danger trees. He received a responsive letter from Gary Clayton, claims agent for Alabama Power Company, dated March 31, 1981, which denied that the trees had been cut by Alabama Power Company and advised him that Alabama Power Company was not liable for the excessive cutting.

Trial ensued. At the conclusion of plaintiffs evidence, and at the close of all the evidence, defendants filed a motion for a directed verdict, which was overruled. Following entry of the judgment, the defendants moved for JNOV or a new trial, and after a hearing, the trial court denied the motion; hence, this appeal.

The record establishes without contradiction that over 200 trees were cut on Mr. Bonner’s land and that he was informed that only eight trees would be cut. No explanation was offered for this discrepancy other than that the references in each letter from APCo to land in Township 12 were typographical errors and should have been to Township 11. Eight trees had been marked in Township 11, but never cut. Mr. Bonner owns an interest in land in Township 11, as well as land in Township 12. It was also undisputed that many of the trees cut were not danger trees and that, contrary to the assurances made to Mr. Bonner by APCo, he was not informed before the cutting took place.

After the hearing held on the defendants’ motion for new trial, the trial judge entered an order denying the motion and made the following observations, which are of record:

“THE COURT: Well, thank you, but I’ll give you a ruling now. Now, there’s no such thing as a pleasant lawsuit. But you folks are mighty professional people and you conducted yourself professionally and well all the way through the course of this trial. But looking at the conduct of the parties from the very inception of this controversy all the way through the trial and up until the conclusion of the trial it’s hard for me to imagine a case — well, I shouldn’t say that because that’s going a little too far. But I will say that the conduct of the parties in this case was such all the way through that in my opinion, in my judgment justified the jury returning the verdict that was returned in the case. It’s hard for me to imagine an individual that could have been more careful in protecting his position the first time he had any notice of any action on the part of the defendant than the plaintiff did in this case. And it’s hard for me to imagine the defendants doing anything more than what they did to be more oppressive in their conduct.
“And I’ll say this. The conduct of the parties defendant in the case from the beginning of the trial even up until the present time has been joint in nature. There’s been nothing from the position— from the beginning up until the present time, even the positions are being argued here by only one lawyer who has filed the motion jointly for all of the defendants. So there hasn’t been any question from the beginning up to the present time that there’s no distinction; there is no conflict so far as the relative relationships of the defendants are concerned.
“But I observed the witnesses; I observed the people that testified in the case for the defendants, for the principal defendant Power Company; and there’s no question in my mind but there was never any thought of any typographical error at any time and that any suggestion was nothing but a sham. The jury didn’t believe it. The jury didn’t believe the witnesses when they testified. I didn’t believe them and I don’t believe them now.
“I’ll tell you one thing, and I don’t have to tell you all this. If there is anything in the world that will get a person in trouble what will surely get you in trouble with the jury is getting up here and not telling the truth. And the jury didn’t believe the witnesses told the truth. I think one man came up here and said we made a mistake; we did the wrong thing. And he was very forthright. But aside from that one witness I think every other witness that testified tried to carry on and perpetrate a sham and the jury saw through it and the jury didn’t like it and they expressed their feeling in their verdict.
“Now, there’s nobody in the world that feels stronger about our jury system than I do; and under the circumstances that I have before me I don’t see anything that justifies disturbing the jury verdict in this case. And you all tried the case well and I think the jury heard the evidence and returned a verdict that they thought should be returned. And the case might come back and if it does it will be on error that I have made; and the only thing I can say in that regard is I did the best I could.
“But I won’t disturb this jury verdict. And in fact if the jury had awarded an amount for the entire amount sued for I wouldn’t have disturbed that either. And that’ll be the order.”

We are asked to reverse the trial court’s order denying a new trial. We affirm.

The defendants first argue that the trial court erred in overruling their objection to a question asked by the plaintiff’s lawyer of prospective jurors.

During the voir dire examination of the venire, the trial court inquired whether any of the panel was an “officer, stockholder, agent, servant or employee of Travelers Insurance Company” or had “any financial interest whatsoever, directly or indirectly, in that particular company, Travelers Insurance Company.” No responses were made. Had any juror responded affirmatively, he might have been disqualified or subject to challenge for cause under § 12-16-150(12), Code 1975. Thereupon, counsel for plaintiff made the following inquiry:

“I would like to ask the jury panel, you have been qualified on certain things; but further is there any member of your family that works as an insurance adjuster for any company handling adjustments, claims or sells insurance or works as a secretary or salesman for any insurance company?”

This question was objected to, and the objection was overruled.

The controlling statute, insofar as the question asked by the plaintiffs’ counsel, was Title 30, § 52, Ala.Code 1940. This statute first appeared as § 8662 of the 1923 Code. It provided:

“In civil and criminal cases, either party shall have the right to examine jurors as to their qualifications, interest, or bias that would affect the trial of the case, and shall have the right, under the direction of the court, to examine said jurors as to any matter that might tend to affect their verdict.”

This section conferred “two ‘rights’ of examination: (1) as to qualifications, interest or bias affecting the trial; and (2), under the court’s direction, as to any matter which might affect the verdict.” Cates, J., writing for the Court of Appeals in Ward v. State, 44 Ala.App. 229, 238, 206 So.2d 897, 906 (1966).

This statute has consistently been given a liberal interpretation, allowing a trial lawyer a broad right to question prospective jurors as to any matter which might aid him in the intelligent exercise of his right to peremptory challenges. Dyer v. State, 241 Ala. 679, 4 So.2d 311 (1941). The examination is not confined to matters which disqualify a juror, but extends to any matter which might tend to affect the verdict. Avery Freight Lines v. Stewart, 258 Ala. 524, 63 So.2d 895 (1953). The scope of the examination is left largely to the discretion of the trial judge.

In Brown v. State, 45 Ala.App. 391, 396, 231 So.2d 167, 172 (1970), the Court observed: “As a practical matter, § 52, supra, admits of so many avenues of questioning that a trial judge seldom, if ever, can be held to reversible error thereunder.” We might not go as far as to say that ourselves, but it is true that very wide latitude has been allowed in voir dire examination.

In urging trial lawyers to take advantage of their right to a probing, wide-ranging voir dire examination, Francis Hare, Jr., has stated the purposes of such an examination:

“To acquaint the jury generally with the type of case you have, and to form the basis for judgments by which you will be governed in eliminating persons who are for any reason biased or prejudiced against your client’s position in the particular ease at bar or stated conversely, to select a jury consisting of persons most favorably disposed to your client’s position.”

Hare, “Voir Dire and Jury Selection,” 29 Ala. Lawyer 160 (1968).

In Vickers v. Howard, 281 Ala. 691, 208 So.2d 72 (1968), the plaintiff in a personal injury case appealed from a judgment in favor of the defendants. She claimed error in that

“The Foreman of the jury, Jerry W. Reynolds, was a licensed agent of Hardware Mutual Casualty Company which he concealed upon identification of the jury, thereby depriving Plaintiff’s attorney of the opportunity of intelligently exercising his peremptory right of striking said juror from said jury panel.”

The specific question asked the venire in that case was not recorded, but the plaintiff’s counsel by affidavit said that juror Reynolds had identified himself as a Sentry Insurance representative. The lawyer said he later learned, after the trial, that Reynolds was primarily engaged in the business of fire and casualty insurance, and had he known that, he would have struck him. Plaintiff also produced an affidavit by Attorney Waldrop Windham, who stated it was the prevailing practice, almost without exception, in striking juries in Birmingham to refuse to accept as jurors any person who sells or adjusts casualty insurance of any kind.

None of the companies of the Sentry Insurance group were insurers of the defendants in that suit, or had any interest in the suit.

In Vickers, Justice Merrill first quoted Title 30, § 52, Code 1940, and then said:

“We have held that this section has the manifest purpose of the disclosure by every juror as to all material qualifications in order that the parties may exercise advisedly their peremptory challenges. Hayes v. Boykin, 271 Ala. 588, 126 So.2d 91, and cases there cited.
“A party in either a civil or criminal case has the right to examine jurors as to bias, interest or qualifications....
“We think counsel for plaintiff waived any claim of prejudicial error when no follow up questions were asked when he was informed that the juror was a Sentry Insurance representative.”

281 Ala. at-693, 208 So.2d at 74.

It is clear from the Vickers decision that there is no abuse of a trial court’s discretion in allowing lawyers to inquire whether any member of the venire or members of their families work for or adjust claims for any insurance company. Such information is clearly material to their right to exercise their peremptory strikes, whether or not it falls short of producing information which would disqualify the jur- or.

Rule 47, A.R.Civ.P., in no way limits voir dire examination. Instead, it retains the practice in existence before its adoption of allowing lawyers to put supplementary questions to the venire, if the court has conducted the initial examination. In this respect, it differs from its federal counterpart.

In Griffin v. State, 383 So.2d 873 (Ala.Crim.App.1980), the Court of Criminal Appeals recognized, as we do, that Title 30, § 52, Ala.Code 1940, was not carried forward for inclusion in Ala.Code 1975. Section 1-1-10, Ala.Code 1975. In Griffin, the court stated:

“It seems that Ala.Code 1975 does not have a counterpart to Code of Alabama, Recompiled 1958, Tit. 30, § 52. The language thereof is to be found, with some modification as noted, in Rule 47, Alabama Rules of Civil Procedure:
“Notwithstanding any apparent hiatus, there can be little doubt as to the law that has prevailed for many years in Alabama to the effect that in the process of selecting the jury from the venire afforded, each party has the right to have questions formulated by it propounded to the jury, either by the court or by the party as the court may determine, if such questions reasonably relate under the circumstances to the question of the qualification or interest or bias on the part of prospective jurors.”

We agree.

It is true that on some occasions, this Court has held that the repeated reference to liability insurance during the course of the trial itself required a new trial. Gwin v. Church, 272 Ala. 674, 133 So.2d 880 (1961). In. Gwin, there were at least eight times when insurance was mentioned, apparently, as this Court noted in American Pamcor, Inc. v. Evans, 288 Ala. 416, 261 So.2d 739 (1972), without any reason being shown for making the inquiry, either to determine the qualifications of jurors or to inform the plaintiff of possible bias so that the plaintiff could intelligently exercise his right to strike. The Court refused to reverse the trial court in American Pamcor for denying the defendant’s motion for new trial. This Court, speaking through Justice Maddox, said:

“The number of instances when insurance is injected in a case is not the sole yardstick by which prejudice to the defendant is measured. However, the question in each case is whether counsel has overstepped that almost imaginary line between what is allowable and what is not. In Gwin, it was easy to see the prejudicial effect. In a case like this, it is difficult to determine whether counsel got past the line of propriety. The trial court initially denied the motion for a mistrial and later denied the motion for a new trial. We find no prejudicial error in his rulings in this case.”

288 Ala. at 419-420, 261 So.2d at 742.

We hold that the trial court correctly overruled the objection to the plaintiffs question on voir dire.

The defendants next argue that prejudicial error occurred, requiring a new trial, because the trial court allowed into evidence a “public trespass notice” which Mr. Bonner had run in the local newspaper and had posted on his land in 1980. They argue in their brief that the evidence was not relevant to the issues in the case. First, we do not necessarily agree that the notice was not relevant to the issues. There was evidence that Bonner and APCo had a long-standing disagreement about damage to his lands by APCo and its contractors. That is manifest by his efforts to prevent it in the events culminating in this lawsuit. However, be that as it may, no ground for the objection was stated at the trial, and we cannot reverse the trial court for overruling a general objection. Cities Service Oil Co. v. Griffin, 357 So.2d 333 (Ala.1978).

Finally, the defendants contend that the trial court must be reversed for refusing to grant a new trial because, they argue, there was no evidence to support any award of punitive damages. They argue that this is so because the plaintiff failed to prove any compensatory or actual damages. Apparently, the basis of this argument is that the plaintiff did not prove the actual dollar value of the trees cut on his land. He did prove, and it was not contradicted, that several hundred merchantable trees were destroyed. A 200-foot swath through a pine plantation planted for timber, between 20 and 25 years old, was destroyed. Scores of merchantable hardwood trees were likewise destroyed. He was not informed that they had been cut in sufficient time to salvage them.

There was evidence from which the jury could have concluded that APCo or Asplundh intentionally told Bonner eight trees would be cut, knowing that it was not true, when it was the intention to cut on a different tract of land altogether. Why either would deliberately mislead him, we cannot say, but whether they did or not was clearly a jury question and, having resolved that question against the defendants, the jury was more than justified in awarding punitive damages, and the trial court cannot be said to have abused its discretion in upholding the verdict. Jim Walter Homes, Inc. v. Waldrop, 448 So.2d 301 (Ala.1983).

We have carefully considered all of the contentions of the defendants and conclude that the trial court did not err to reversal. Thus, its judgment is affirmed.

AFFIRMED.

FAULKNER, JONES, ALMON, EM-BRY, and ADAMS, JJ., concur.

TORBERT, C.J., and MADDOX and BEATTY, JJ., dissent.

BEATTY, Justice

(dissenting):

Because the majority opinion effectively changes the long-established principle concerning the injection of insurance into a civil case, for no reason presented to the Court other than the opinion of counsel, I must respectfully dissent.

It should be noted first that this is not a case in which a witness has revealed insurance, nor is it a case in which reference has been made to insurance in closing' argument. It is a case in which additional reference to insurance has been allowed during juror qualification. That process used in this case bears repeating.

During the voir dire examination of the venire, the trial court inquired whether any of the panel was an “officer, stockholder, agent, servant or employee of Travelers Insurance Company.” No responses were made. Later, during voir dire, counsel for plaintiff was allowed to make the following inquiry:

“I would like to ask the jury panel, you have been qualified on certain things; but further is there any member of your family that works as an insurance adjuster for any company handling adjustments, claims or sells insurance or works as a secretary or salesman for any insurance company?” (Emphasis added.)

This question was asked over defense counsel’s objection that it was “not a proper qualification.”

This is not a case in which an insurance company was a party. Here, the insurance company’s relevance to the case was only that, in the event of a recovery for the plaintiff, it would pay the money judgment. In such circumstances, i.e., where the insurance carrier is involved only because it will pay a judgment against its defendant-insured, Alabama has long adhered to the principle indicated by the question asked in this case by the trial court: whether any member of the panel was an officer, stockholder, agent, servant or employee of “X Insurance Company.” That has been the extent of any reference to insurance in qualifying the venire. Vredenburgh Saw Mill Co. v. Black, 251 Ala. 302, 37 So.2d 212 (1948). Unlike Alabama, some states have allowed the venire to be asked that question without reference to a particular insurance company, e.g., interest in “any” insurance company. Annot. 4 A.L.R.2d 761, 811. The majority’s opinion goes further than either of those views. It not only allows inquiry into interest in any insurance company generally, but asks whether family members work for any insurance company.

The majority justifies this action by relying on a statute which has been repealed, see Code of 1975, § 1-1-10, and finding the question of plaintiffs counsel to be an inquiry into a matter that might affect the verdict, which the trial court, in its discretion, may permit. Although Title 30, § 52, Code of 1940, has been superseded by Rule 47, A.R.Civ.P., which provides that “[t]he court may permit the parties or their attorneys to conduct the examination of prospective jurors or may itself conduct the examination,” the long-standing rule in this state concerning the introduction of insurance in qualifying the venire was set forth by this Court in Gwin v. Church, 272 Ala. 674, 680, 133 So.2d 880 (1961):

“The rule is firmly settled in this state that the plaintiff is entitled, upon his seasonable and proper motion, to have the jury qualified as to their relation to, or interest in, any insurance company which would be liable, in whole or in part, for any judgment that might be rendered against the defendant. [Citations omitted.] On the other hand, counsel should be careful to avoid saying or doing anything which would lead the jury to believe that his opponent has insurance to protect him in respect to the matter in controversy when reference to insurance is not admissible for any proper purpose .... ”

Until now any “proper purpose” of showing bias or interest in a member of the venire for an insurance company has been limited to an application of the principle stated in the first sentence of the above quotation.

Of the five cases cited by the majority as authority to depart from this well-settled rule, three are criminal cases in which insurance is not involved and which, therefore, have no bearing on the present case. Avery Freight Lines, Inc. v. Stewart, 258 Ala. 524, 63 So.2d 895 (1953), involved not only an inquiry into whether any member of the venire was a stockholder or employee of' the defendant’s liability insurance carrier, but also an inquiry “for information of counsel only” as to whether “any of you [members of the venire] have any relatives who work for that concern.” 258 Ala. at 526, 63 So.2d at 895-96. There was, however, no proper objection to the question propounded by the trial judge; consequently, any issue concerning the inquiry was not preserved for review. Notwithstanding this, this Court stated, in what amounts to dicta, that “[t]he inquiry is conceded to be one available to plaintiffs counsel under section 52, Title 30 of the Code.” 258 Ala. at 526, 63 So.2d at 896. However, it was recognized that the inquiry was limited to the defendant’s insurance carrier: “The inquiry of the panel by the judge as to their relation to or interest in the insurance carrier of the defendant was proper unless attended by undue prejudicial circumstances.” (Emphasis added.) Id. Even if this case can be construed as permitting an inquiry into relatives’ connections with an insurance company, it clearly limits the inquiry to the defendant’s insurance company.

Even the last case cited, Vickers v. Howard, 281 Ala. 691, 208 So.2d 72 (1968), does not support the majority’s position. That case obviously concerned an inquiry into the occupation of the prospective jurors only, not any and all of their relatives. One member of the venire, Jerry Reynolds, “replied in open court that he was a Sentry Insurance agent.” 281 Ala. at 693, 208 So.2d at 74. This Court held only that “[w]hen the juror answered that he was an insurance representative, plaintiff’s attorney could have inquired further if he desired to strike casualty insurance salesmen or adjusters.” Id. A further inquiry into Reynolds’s duties or responsibilities to determine possible bias, however, is vastly different from allowing a blanket inquiry as to whether any of the venire members have any relatives who work in any capacity for any insurance company. Such an inquiry has never before today been permitted in this state.

Although I dissent to that practice here, as unsupported by any authority, nevertheless, I have no intellectual animosity toward such a far-reaching change should there have been any justification advanced for it. But, here we have been presented with nothing on which to base this reversal of the long-adhered-to principle except the argument in brief of plaintiffs distinguished counsel. He argues in his brief that the insurance industry is large; that every town has numerous sales agents; that many people depend directly upon the insurance industry, and, therefore, that some persons who had been qualified as to defendant’s particular carrier might have been biased in favor of any insurance company.

The majority’s approval of the additional inquiry under the speculation, unsupported by any facts and without reference to any contravening interests, inevitably leads to a result akin to this paraphrase:

“Ladies and gentlemen of the jury panel, you have been asked whether you are an officer, stockholder, agent, servant or employee of the Travelers Insurance Company, or whether you have any financial interest in that insurance company. You have said ‘no’ to that question. Now to reemphasize the importance of insurance in this case, does any member of your family work as an insurance adjuster, or handle claims, or sell insurance, or work as a secretary or otherwise, for any insurance company?”

For these reasons, I must respectfully dissent.

TORBERT, C.J., and MADDOX, J., concur.