text:
    Ex parte LIBERTY NATIONAL LIFE INSURANCE COMPANY. (In re Gwen ARCHIE v. LIBERTY NATIONAL LIFE INSURANCE COMPANY and James Stinson).
    83-852.
    Supreme Court of Alabama.
    Sept. 28, 1984.

      Kenneth T. Fuller of Cassady, Fuller & Marsh, Enterprise, for petitioner.
    Larry C. Jarrell of Crawley & Jarrell, Troy, for respondents.
   ADAMS, Justice.

The defendant below, Liberty National Life Insurance Company, has filed a petition for writ of mandamus, seeking an order from this Court directing the Circuit Court of Coffee County, Elba Division, to transfer this cause to the Circuit Court of Pike County. Gwen Archie, plaintiff in the trial court, had filed suit against Liberty National Life Insurance Company and one of its agents, James Stinson. Stinson had solicited her business for hospital insurance with Liberty National. Archie claimed that she paid Stinson the money for the policy, but that shortly after this was done, Stin-son quit Liberty National and did not place the policy with the company. She goes on further to say that in reliance on Stinson’s representation that he would place the policy, she put her dependent son in the hospital for surgery. At the end of his hospitalization, Liberty National refused to pay his hospital bill, in the sum of $2,589.25. Liberty National claims that for such policies to be valid, Archie would have had to pass a physical examination. This fact, Archie said, was deliberately withheld from her and she says that in fact Stinson told her she did not have to take an examination.

In Archie’s complaint, her causes of action are denominated as fraud, negligent failure to procure insurance, and suppression. She has not made a claim for breach of either oral or written contract.

Liberty National does business in Pike County and has a registered agent there, but is also similarly situated in the Elba Division of Coffee County. Plaintiff’s business was solicited in Pike County, and plaintiff both resides and works there. The individual defendant, James Stinson, is also a resident of Pike County.

The issue in this case is what place is the proper venue for this cause of action — Pike County or the Elba Division of Coffee County? Section 6-3-2, Code of Alabama (1975), provides:

(a) In proceedings of a legal nature against individuals:
(2) All actions on contracts, except as may be otherwise provided, must be commenced in the county in which the defendant or one of the defendants resides if such defendant has within the state a permanent residence.
(3) All other personal actions, if the defendant or one of the defendants has within the state a permanent residence, may be commenced in the county of such residence or in the county in which the act or omission complained of may have been done or may have occurred.

Section 6-3-7, Code of Alabama (1975), provides:

A foreign corporation may be sued in any county in which it does business by agent, and a domestic corporation may be sued in any county in which it does business by agent or was doing business by agent at the time the cause of action arose; provided, that all actions against a domestic corporation for personal injuries must be commenced in the county where the injury occurred or in the county where the plaintiff resides if such corporation does business by agent in the county of the plaintiffs residence.

Plaintiff Archie argues that inasmuch as Liberty National is a domestic corporation, it can be sued in a case such as this in the Elba Division of Coffee County, where it also does business and has an agent, because all of plaintiffs claims in her complaint arise out of and revolve around the failure of Liberty National to recognize its contract for hospital insurance. Plaintiff says that the personal injuries contemplated under § 6-3-7, Code of Alabama (1975), are not personal injuries arising out of a failure to recognize the contract. However, plaintiffs argument in this regard is foreclosed by this court’s decision of over sixty years ago in Age-Herald, Publishing Co. v. Huddleston, 207 Ala. 40, 92 So. 193 (1921). This court, in that case, said:

It is clear that the word “injury” — in the Latin, injuria — in the phrase “where the injury occurred,” is used in its proper legal sense of wrong, importing, of course, a wrongful act or omission. “Damage,” the result of the wrongful act — technically called the damnum — is a correlative term of wholly distinct meaning and application. The significance of the terms — “injury” and “damage” — is sharply contrasted in the familiar legal phrases, damnum absque injuria, and in-juria sine damno. [Citations omitted.] The meaning we accord to “injury” in section 6112 [Code, 1907] is made clearer by a consideration of 6110, which is a general venue statute, and which authorizes the bringing of non-contractual personal actions either in the county of the defendant’s residence, “or in the county in which the act or omission complained of may have been done, or may have occurred.” Certainly, in enacting the later section (6112), the Legislature did not intend to change the basis of venue in tort actions from the county in which the wrongful act was done or occurred to the county, or any county, in which the resulting damage occurred, and to thereby effect so vital a change in actions only against corporate defendants, and for personal injuries only.
It results that, under section 6112, the venue in this action must be laid in the county where the wrongful act — that is, the act violative of plaintiff’s rights— was done. That act was, of course, the publishing of libelous matter in defendant’s newspaper, “published at Birmingham” — so the complaint alleges, in accordance with the form prescribed by the statute for this action.

207 Ala. at 44, 92 So. at 197.

Although Archie insists that her cause of action arises out of and revolves around contract, nevertheless, she has no claim of breach of contract in her complaint. We are left, in this case, with only claims which are strictly tortious in nature. See Sasser v. Dixon, 290 Ala. 17, 273 So.2d 182 (1973); City of Fairhope v. Raddcliffe, 48 Ala. App. 224, 263 So.2d 682 (1972).

We are mindful that mandamus is an extraordinary writ and while it will lie to compel the exercise of discretion by a circuit judge, it will not lie to compel the exercise of his discretion in a particular manner. State v. Cannon, 369 So.2d 32 (Ala.1979). But the facts in this case do not call for the exercise of discretion. The facts in this case fit within the perimeters of both § 6-3-2, Code of Alabama 1975, and § 6-3-7, Code of Alabama 1975. The injury occurred in Pike County, the plaintiff lives in Pike County, the individual defendant lives in Pike County, and the domestic corporation does business and has an agent in Pike County. Under these facts, the venue of this cause of action is Pike County.

WRIT GRANTED.

MADDOX, FAULKNER, ALMON and EMBRY, JJ., concur.


source: Caselaw Access Project

author: ADAMS, Justice.

license: Public Domain

text:
    A.M. FRANKLIN v. Mamie Lue BURNETT and Mary Bell Harris.
    83-890.
    Supreme Court of Alabama.
    Sept. 28, 1984.
    Charles J. Kettler, Jr., Luverne, for appellant.
    Carlos A. Williams of Chestnut, Sanders, Sanders & Turner, Selma, for appellees.
   ADAMS, Justice.

This appeal arises from a suit by Mamie Lue Burnett and Mary Bell Harris against A.M. Franklin and other defendant property owners alleging that Burnett and Harris owned interests as tenants-in-eommon in the properties owned by each of the defendants. The suit sought an equitable division of the property in dispute. Franklin appeals from the order of the Circuit Court of Crenshaw County declaring that the property could not be equitably partitioned.

The tract of land which forms the basis of this suit was purchased by appellant Franklin in 1976 from the heirs of Mose Thomas, the original owner. Franklin failed to obtain the signature of appellees Burnett and Harris, however, who were the daughter and niece of Mose Thomas respectively. Thus, Burnett and Harris retained what was stipulated at trial to be a %3 interest and a ¾½ interest respectively in the land that Franklin purchased.

Franklin subsequently sold the land in issue to defendants Willis and Nellie Taylor, who subdivided the tract into ten lots, cleared and leveled the land through bulldozing, had the land surveyed, made arrangements with the city for a paved street through the subdivision, and acquired the necessary utility connections. The Taylors constructed a house on each of two of the lots and subsequently sold most of the ten parcels to others named as defendants in this suit.

Burnett and Harris filed suit on April 16, 1982, seeking an equitable division of the property, a declaration of the interest of the plaintiffs in the land, and attorney’s fees. An equitable partition of the tract was complicated by the aforementioned subdivision and sale of parcels to various owners and the improvements made on the parcels, which included the construction of three homes, a warehouse, and a building used as an office.

After a hearing, the court, sitting in equity, found that Burnett owned a %s interest in the ten parcels and Harris owned a V63 interest in the parcels (a fact stipulated to by the parties at trial) and further ordered that the property could not be equitably partitioned. Defendant Franklin appealed the court’s order. Both parties seek an adjudication of this dispute. We reverse the lower court’s judgment and remand this case for a proper determination.

In a property dispute like that involved in this case, it is imperative that some determination be made so that title to the property can be cleared and the rights of all parties involved adjudicated. A court sitting in equity has the broad power to fashion remedies which are equitable under given circumstances. The lower court in this case declared in its final order that “said property cannot be equitably partitioned among the joint owners and tenants in common.”

Inasmuch as the court cannot fashion a remedy partitioning the property, we remind it that the plaintiffs in this case requested in their complaint, in addition to the partition, “such other and general relief as may seem just and equitable.” The lower court is authorized to do just that. A satisfactory remedy could include owelty or any other available equitable relief.

Additionally, § 34-3-60, Code of Alabama (1975), allows an award of attorney’s fees in cases such as this one at the discretion of the trial judge. Plaintiffs requested such fees in their complaint, but the final order is not clear on whether such an award was in fact granted. The lower court should rectify this on remand.

For all of the above-stated reasons, the judgment of the trial court is r ~ersed and this case is remanded for procu. dings consistent with this opinion.

REVERSED AND REMANDED.

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


author: BRADLEY, Judge. WRIGHT, Presiding Judge,

text:
    Bernadine TAYLOR v. CIBA-GEIGY CORPORATION, a corporation.
    Civ. 4275.
    Court of Civil Appeals of Alabama.
    Aug. 22, 1984.

      Donald G. Beebe, Mobile, for appellant.
    Thomas M. Galloway, Jr. of Collins, Galloway & Smith, Mobile, for appellee.
   BRADLEY, Judge.

This is a workmen’s compensation case.

In April 1983 Bernadine Taylor filed a petition for workmen’s compensation benefits against her employer, Ciba-Geigy Corporation, a corporation. A summary judgment was rendered in favor of employer. Employee appeals.

Employee alleges in her complaint that she was injured on the job in November 1977 and that she received compensation benefits or benefits in lieu of compensation until February 1983. She filed her petition in April 1983. Employer filed an answer in which it denied that employee had been injured on the job and had received compensation benefits or benefits in lieu of compensation from 1977 until February 1983. Employer also asserted the statute of limitations as a bar to employee’s action.

Employer later filed a motion for summary judgment accompanied by an affidavit of its personnel officer.

The personnel officer asserted that in October 1977 the employee had filed a claim for accident and sickness weekly benefits for a nonjob-related injury. Employee was off the job from September 29, 1977 through December 27, 1977 and was paid accident and sickness benefits for that period. She returned to work on September 28, 1977 and worked until November 1979 when she again was off her job for maternity leave. Employee received accident and sickness benefits from November 23, 1979 through May 22, 1980 and longterm disability benefits (which have nothing to do with workmen’s compensation benefits) from May 23, 1980 through July 21, 1980. Employee returned to work on July 22, 1980 and worked until August 14, 1980. At this time employee went off the job and received accident and sickness benefits until February 19, 1981. From February 20, 1981 until February 12, 1983 employee received longterm disability benefits.

The personnel officer stated that between December 28, 1977 and November 22, 1979 employee received no payments or compensation of any kind from employer or its insurers. He further stated that employee never claimed that the treatment she received in September 1977 or thereafter was for a job-related injury.

Employee filed an affidavit in opposition to employer’s motion for summary judgment. In her affidavit employee says she did file a claim for accident and sickness benefits in October 1977 but it was at the direction of her supervisor who did not want her to file a claim for workmen’s compensation benefits. She said that employer was trying to maintain an injury-free work record and did not want a job-related injury to mar its record. She said that her injury was suffered on the job and that her employer was aware that it was job related because of the injury report she filed. She says she was instructed to file for accident and sickness benefits rather than file a report of a work-related injury.

After a hearing the trial court granted employer’s motion for summary judgment.

In brief here employee argues that the trial court erred in awarding a summary judgment to employer. She says that a question of fact was presented by her affidavit as to whether the employer fraudulently prevented her from filing a claim for workmen’s compensation benefits and thus is now estopped from asserting the statute of limitations.

A summary judgment must not be granted if there is a genuine issue as to any material fact. Ancora Corp. v. Miller Oil Purchasing Co., 361 So.2d 1008 (Ala.1978). And in determining whether such issue exists, the record must be viewed in a light most favorable to the nonmoving party. Tolbert v. Gulsby, 333 So.2d 129 (Ala.1976).

Employee says that she was injured on the job but was told not to file an on-the-job accident report but to say she was injured off the job and to claim accident and sickness benefits rather than workmen’s compensation benefits. Employer denies that employee was injured on the job and that she was told to claim accident and sickness benefits in lieu of workmen’s compensation benefits.

The evidence is undisputed, however, that the employee did not receive any benefits from December 1977 until November 1979. Employee did allege in her complaint that she had received benefits from November 1977 until February 1983. The employer contradicted tnis assertion by the affidavit of its personnel officer filed in support of the motion for summary judgment. The employee in her affidavit in opposition to the summary judgment motion did not contradict the employer’s statements about the periods during which employee received benefits.

Once a summary judgment motion has been made and supported as provided by rule 56, Alabama Rules of Civil Procedure, the adverse party cannot rest on the allegations of his pleadings alone but must respond by presenting affidavits setting forth specific facts showing that there is a genuine issue for trial. Campbell v. Alabama Power Co., 378 So.2d 718 (Ala.1979).

Here, the employee did respond to the summary judgment motion by affidavit, but she failed to say anything about receiving benefits and for what periods. Therefore, the employer’s statement that employee received no benefits from December 1977 until November 1979 stands uncontra-dicted.

At this juncture of the case, the facts are these: employee was paid benefits in lieu of compensation from September 29, 1977 through December 27, 1977, and at this time the payments stopped. Then for a period of almost two years employee did not receive any payments whether they be compensation or insurance benefits. Section 25-5-80, Code 1975, provides that the statute of limitations is tolled for one year following the last payment of compensation. Employee received her last payment on December 27, 1977 but failed to bring her suit within a year from this payment. We, therefore, reject employee’s argument that her payments in lieu of compensation tolled the period of limitation so as to make her suit timely.

Employee says, however, that employer cannot assert the limitations’ bar because she was fraudulently induced to not file her claim in September 1977. Assuming that employee was fraudulently induced to not file a claim for compensation benefits, nevertheless, she was aware of the fact that she could file for such benefits.

Since employee was aware in September 1977 that she could file a claim for workmen’s compensation benefits, once the payments ceased in December 1977 she was then on notice that she should file for such benefits. In other words, the fraud ended when the payments stopped. Employee was then under no compulsion to continue to accept the insurance benefits in lieu of compensation.

“The general rule appears to be that a plaintiff may not invoke the doctrine of equitable estoppel against a defendant unless the plaintiff exercises due diligence in commencing the appropriate legal proceeding after the circumstances giving rise to estoppel have ceased to be operational .... ”

Annot., 44 A.L.R.3d 760 (1972).

This court has not been cited to, nor has it found, any authority in this jurisdiction stating the period of time in which an employee is required to bring his claim for workmen’s compensation benefits after the employer’s conduct inducing the employee to delay filing suit has ceased. We are therefore required to turn to other sources.

Since employee’s claim for relief from the operation of the statute of limitations is based on her employer’s fraud, we can analogize to section 6-2-3, Code 1975, providing a statutory period of limitation for bringing an action based on fraud. This section requires that an action seeking such relief be brought within one year after the discovery of the fraud.

In the case before us it appears that employee was aware that she had a right to file a workmen’s compensation claim in 1977. She was, therefore, aware of her employer’s fraud in 1977 inducing her to file her claim as not being job related. She would then have one year thereafter within which to bring her claim and this suit would be time barred. However, we might reasonably measure the employee’s discovery of the fraud from the date that she became aware or should have been aware that her employer challenged her right to workmen’s compensation benefits.

When employee’s payments ceased in December 1977, she was provided with facts sufficient to provoke inquiry as to why the payments stopped. Employee should have discovered at this time that her employer refused to acknowledge her claim. Accordingly, employee should have brought her claim at least within one year after the cessation of payments in December 1977.

Turning to other jurisdictions, a substantial number of cases have held that where the conduct of the defendant justifying plaintiff’s delay in filing suit has ceased, and plaintiff had ample time and opportunity to commence the action prior to the expiration of the statutory period, defendant is not estopped from asserting the statute of limitations. See, Annot., 44 A.L. R.3d 760 (1972); Annot., 43 A.L.R.3d 429 (1972).

Here, employee was injured in September 1977 and the payments inducing her delay ceased in December 1977, before the statutory period of limitation had run. She had, thereafter, nine months in which to bring her claim. No reason is given in the record for her failure to file after this date. Because during this nine month period there were no alleged words or conduct on the part of her employer which lulled her into a false sense of security, we do not find that it was reasonable for her to delay commencing her claim until after the period of limitation had expired.

If, however, we were to assume that employer’s conduct extended beyond the statutory period of limitation, a large number of cases would require that employee bring the claim within a reasonable time after her employer’s conduct constituting estoppel ceased. Several of these cases suggest that this reasonable time is not to exceed the original statutory period applicable to the particular cause of action involved. Annot., 44 A.L.R.3d 760 (1972).

We believe that reference to the applicable statute of limitations period established by our legislature in section 25-5-80, Code 1975, provides a determination of the test for reasonableness. The legislature has determined that one year is a reasonable time for an employee to bring an action for workmen’s compensation benefits. Therefore, an employee is required to bring his workmen’s compensation claim within one year after the circumstances justifying his delay have ceased. This we believe is an equitable result because it provides employee an opportunity to begin the running of the statute of limitations anew after her employer’s misrepresentations ceased.

To hold otherwise would be to say that an employer who has fraudulently induced an employee to forgo claiming workmen’s compensation benefits for a period of time is forever barred from asserting the limitation period within which an employee must file such claims. This court has not been cited to any such authority and, after diligent search, we have been unable to find any such authority.

Accordingly, we affirm the grant of summary judgment by the trial court, holding that employee’s suit is time barred.

AFFIRMED.

HOLMES, J., concurs.

WRIGHT, P.J., concurs specially.

WRIGHT, Presiding Judge,

concurring specially.

I concur in the result that the statute of limitation for suit of workmen’s compensation has expired and that there is no bar of estoppel to employer pleading the statute. However, it appears to me that the discussion of estoppel is not appropriate under the facts even as stated by employee. If there was in fact a job-related injury, employee was aware of her right to claim workmen’s compensation. She instead, of her own decision, elected to claim sick and accident benefits. She was not misled or induced by the employer to delay filing for workmen’s compensation within the statutory time. She knowingly accepted other benefits available to her. She thereafter worked for more than five years before determining to claim compensation. Clearly she was not entitled to maintain her suit.


author: HOLMES, Judge.

text:
    Troy BAGGETT v. BUILDERS TRANSPORT, INC.
    Civ. 4296.
    Court of Civil Appeals of Alabama.
    Sept. 12, 1984.
    Jay A. York of Cunningham, Bounds, Yance, Crowder & Brown, Mobile, for appellant.
    Thomas Troy Zieman, Jr. and Bradley R. Byrne of Miller, Hamilton, Snider & Odom, Mobile, for appellee.
   HOLMES, Judge.

This is a workmen’s compensation case involving the granting of a summary judgment.

The employer’s motion for summary judgment was based upon the contention that the statute of limitations barred recovery by the employee of worker compensation benefits. The employee appeals from the granting of a summary judgment.

The dispositive issue is whether there is a genuine issue of fact regarding the date of the employee’s injury. This is true even though the employer contends that “[t]he standard of review in workmen’s compensation cases is whether there is any legal evidence to sustain the trial court’s finding or conclusion of judgment.” Young v. City of Huntsville, 342 So.2d 918, 921 (Ala.Civ.App.1976).

Although this is a workmen’s compensation case, this is an appeal from summary judgment. Therefore, the dispositive issue as previously stated is whether there is a genuine issue of fact regarding the date of the employee’s injury. Alabama Rule of Civil Procedure 56(c).

At this point it is appropriate to note the following principle: “[0]n a motion for summary judgment all reasonable inferences from the facts are viewed most favorably to the nonmoving party.” Mims v. Louisville Title Ins. Co., 358 So.2d 1028, 1029 (Ala.1978). When so viewing the evidence, we find the following: The employee injured his right shoulder in March 1980. This injury occurred when he fell from the top of a truck while securing a load of shingles with a tarpaulin. The employee did not seek medical help after this fall, and he continued to work as a truckdriver for the employer. Additionally, the employee injured his right shoulder in January 1981. This injury occurred when he pulled down a ratchet bar to secure a load of merchandise on a truck. The employee got medical help, and he was not able to continue to drive the employer’s truck. The employee filed suit for worker compensation benefits in July 1981.

The employer contends that the injury for which compensation is sought occurred in March 1980; therefore, the employee’s claim for worker compensation benefits was barred by the one year statute of limitations because the suit was filed in July 1981. The employee contends that the injury for which compensation is sought occurred in January 1981; therefore, the claim for worker compensation benefits was filed within the appropriate time limits.

The statute of limitations for workmen’s compensation cases is as follows in pertinent part: “In case of a personal injury, all claims for compensation ... shall be forever barred ... unless within one year after the accident one of the parties shall have filed a verified complaint_” Ala.Code § 25-5-80 (1975).

Because this is an appeal from summary judgment, we must determine if there is any evidence to indicate that the injury for which compensation is sought occurred in January 1981. Only a scintilla of evidence is required to establish that a genuine issue of fact exists regarding the date of the injury in order to preclude summary judgment. Blount v. Alabama Elec. Co-op., Inc., 429 So.2d 1101, 1103 (Ala.Civ.App.1983). Put another way, if there is a scintilla of evidence that the injury for which compensation is sought occurred in January 1981, then a genuine issue of fact exists and summary judgment is improper.

In another workmen’s compensation case this court reversed the summary judgment based on the statute of limitations, and we defined a scintilla of evidence as a “gleam, glimmer, spark, the least bit, the smallest trace, a scintilla of evidence to overcome the bar of the one year statute of limitations.” Blount v. Alabama Elec. Co-op., Inc., 429 So.2d 1101, 1103 (Ala.Civ.App.1983). In Blount, the scintilla of evidence was certain testimony in an affidavit. Blount, 429 So.2d at 1103.

In this case there is a scintilla of evidence that the injury occurred in January 1981. There is testimony in a deposition by one of the orthopedic surgeons who examined the employee that the injury could have occurred in January 1981. Additionally, the employee testified in a deposition that the injury for which compensation is sought occurred in January 1981.

Because there is a scintilla of evidence that the injury occurred in January 1981, there is a genuine question of fact regarding the date of the injury. Therefore, summary judgment was improperly granted, and we must reverse.

Additionally, the employer contends the following: (1) summary judgment is proper because the employee failed to give any notice of his injury to employer until eleven months after the March 1980 injury; (2) the employer is not liable for the employee’s disability resulting from the January 1981 incident by statute because the failure to adequately notify the employer of the March 1980 injury renders the January 1981 incident a pre-existing injury; and (3) the employer is not liable for the employee’s injury by statute because the employee wilfully breached the employer’s safety rules.

First, as previously stated, the employer contends that summary judgment is proper because the employee failed to give any notice of his injury to employer until eleven months after the March 1980 injury. We note that the employer relies upon a statute which requires written notice to an employer by an injured employee within ninety days of an accident in order to recover compensation. Ala.Code § 25-5-78 (1975).

There was no written notice in the present case. However, we stated that “it has long been the rule in Alabama that actual notice is the equivalent of statutory notice.” Price Ceiling, Inc. v. Ray, 394 So.2d 58, 60 (Ala.Civ.App.1981) (emphasis added).

The Supreme Court of Alabama defined the test for “actual notice” as follows: “The aim of the notice is ‘to advise the employer that a certain employee, by name, received a specified injury in the course of his employment on or about a specified time, at or near a certain place specified.’ ” Ex parte Stith Coal Co., 213 Ala. 399, 400, 104 So. 756, 757 (1925). In this case there is testimony throughout the employee’s deposition as follows: “I guess I told them all.” “Everyday just about it. They gave me a van there for a while to pull.” “I know exactly where I was when I fell and what time of the month it was.” “[Tjhey wanted to know what day it was or something.”

This testimony indicates that the employer was advised within the statutory time limits that the employee injured his shoulder and that the employer was advised of the time and the place of the injury. Consequently, the employer’s contention that summary judgment is proper because the employee failed to adequately notify employer of the injury is without merit.

Second, as previously noted, the employer contends that employer is not liable for the employee’s disability resulting from the January 1981 incident by statute because the failure to adequately notify the employer of the March 1980 injury renders the January 1981 incident a pre-existing injury. We note that the employer relies upon a statute which provides as follows: “If the degree or duration of disability resulting from an accident is increased or prolonged because of a preexisting injury or infirmity, the employer shall be liable only for the disability that would have resulted from the accident had the earlier injury or infirmity not existed.” Ala.Code § 25-5-58 (1975).

We cannot logically label the January 1981 injury a pre-existing condition because the evidence indicates that it may be the injury for which compensation is sought. Put another way, we stated previously that there is testimony that the injury could have occurred in January 1981.

Third, as previously stated, the employer contends that the employer is not liable for the employee’s injury by statute because the employee wilfully breached the employer’s safety rules. We note that the employer relies upon a statute that provides in pertinent part: “[N]o compensation shall be allowed for an injury or death caused by the wilful misconduct of the employee _” Ala.Code § 25-5-51 (1975) (emphasis added).

The employer argues that the fact the employee steered the truck with his left hand and shifted gears with his left hand not only violated the employer’s safety rules but also precludes worker compensation benefits for the March 1980 injury. We note that the language of the statute precludes compensation for an injury caused by wilfull misconduct. At this point in the proceedings, we cannot state that the employee was injured because he steered the truck with his left hand or because he shifted gears with his left hand. Instead, there is evidence that the injury in March 1980 was caused by a fall from the top of a truck loaded with shingles. Furthermore, there is evidence that the January 1981 injury was caused by pulling dpwn a ratchet bar. Therefore, the contention that summary judgment is appropriate because of wilfull violations of safety rules cannot be sustained.

We would be remiss in not commenting that nothing we have said should be construed as preventing the trial court, based on evidence presented to it, from making any appropriate finding. We have only said that there is evidence that prevents the granting of a summary judgment.

This case is due to be and is reversed. The cause is remanded for entry of judgment consistent with this opinion.

REVERSED AND REMANDED.

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


author: EDWARD N. SCRUGGS,

text:
    Wanda McKelvy (Davis) GIBSON v. Willard Lee DAVIS.
    Civ. 4351.
    Court of Civil Appeals of Alabama.
    Sept. 19, 1984.

      Joseph W. Propst II, Decatur, for appellant.
    No brief for appellee.
   EDWARD N. SCRUGGS,

Retired Circuit Judge.

This case concerns the father’s arrearage for child support. Also, the mother was required to provide future support for the child.

The mother was granted custody of the minor child by the divorce decree of February 13, 1970. The father was ordered to pay fifteen dollars weekly for the child’s maintenance. In December 1983, the mother sought a judgment against the father for arrears in child support payments in the approximate amount of $9,135. The father counterclaimed that the mother should be required to pay a reasonable amount for the support and maintenance of the child. After an ore tenus trial, the learned trial court, in now pertinent part, determined in the final judgment as follows:

“The parties hereto were divorced in 1970 and primary custody of their minor child, Lee Ann Davis, was placed with her mother, the plaintiff herein. The defendant was ordered to pay the plaintiff child support. Payments were made for several months then the plaintiff left the State with the child and the defendant did not make any support payments for a number of years. The defendant contends the plaintiff secreted the child from his whereabouts and he was thus prevented from visiting with the child and did not know where the plaintiff was in order to present her with child support payments. The plaintiff somewhat disputes the contention of the defendant, but nevertheless, the support payments were not made for a number of years. In approximately 1980, the defendant secured physical custody of the child and subsequently the Court amended the earlier decree and placed legal custody of the child with her father. The plaintiff spent some time incarcerated, having been convicted of theft and the evidence reflects that she has a criminal record of shoplifting in a number of States. This action was commenced by the petition of the plaintiff seeking judgment against the defendant for child support in arrears. The plaintiff contends the defendant owes approximately $9,135.00. The defendant has answered and filed a counter-petition asking the plaintiff be held in contempt for interfering with his custody rights and also requests that the Court order the plaintiff to pay a reasonable amount for support and maintenance for the child.
“There is no question but that the defendant failed to make support payments for a number of years and some arrear-age has accumulated. In that sense he has some indebtedness to the plaintiff. His non-payment did not constitute contempt and no judgment for the arrearage is entered for the plaintiff. In the opinion of the Court, the defendant is entitled to have the plaintiff pay to him a reasonable amount for the support and maintenance of the child now that the daughter is in his custody. A reasonable amount under the circumstances is ONE-HUNDRED FIFTY AND NO/lOO ($150.00) DOLLARS each month and the Court finds that responsibility owing from the plaintiff to the defendant. This support obligation is to continue until the minor child reaches the age of nineteen (19) years, marries, or becomes totally self-supporting.
“It is further the finding and opinion of the Court that the support ordered herein to be paid from the plaintiff to the defendant is to be offset from the arrear-age which has accumulated and is owing from the defendant to the plaintiff. This is to say that the plaintiff is not required to make the $150.00 monthly payments to the defendant and the defendant is not required to pay the plaintiff the support now in arrears. It is now the total responsibility of the defendant to provide the support and maintenance for the child of the parties. By the time the child reaches the age of majority and is no longer subject to the defendant for her daily support and maintenance, in the opinion of the Court, the arrearage owing from the defendant to the plaintiff and the support ordered herein to be paid from the plaintiff to the defendant will be offset and equal. Neither party will then be financially obligated to the other.”

The mother duly appealed. The father has not favored this court with a brief. We reverse and remand. In viewing the record with the attendant presumptions which are accorded to the trial court’s action, the following is revealed:

The father paid $1,560 as child support between the time of the divorce and February 22, 1972, the date of his last payment. He ceased to meet that weekly obligation when the parties argued and the mother informed him that she was tired of it, that she neither wanted nor needed the money, and that she was leaving this state. She and the child moved to Chicago in 1972 and, thereafter, resided in other cities. She now lives in Ohio. She has been sentenced in Kentucky and in Ohio for shoplifting. Her last husband, who was a bartender and a gambler but who supported the child for ten years, was murdered in 1981; and the mother testified that, as a consequence of that tragedy, she heavily used drugs and had no income, that the father would not provide for the child’s school clothing, and that she went back to shoplifting, which resulted in the Ohio sentence of from six to fifteen years. The mother served over nine months of that sentence, from September 1982 until June 1983, and was on parole at the time of the trial concerning the present litigation. She stated that she no longer uses drugs.

While the mother was still in the Ohio penitentiary, the father sent bus fare for the child to come to Alabama. He obtained a temporary custody order in November 1982 and a final custody order in April 1983. Since the daughter came to Alabama, the father has totally supported her. He has worked at the same job since before the divorce and presently makes $13.30 an hour as a heavy equipment operator. The mother’s monthly income at the time of the trial consisted of $227 A.D.C., which she received as aid from the state of Ohio for her fourteen-year-old son, a dependent child. For her six-year-old mongoloid son, she received each month $189 from his deceased father’s Social Security and $145 S.S.I., which is supplemental Social Security for that son’s disability.

The mother first complains that, while the trial court ascertained that there existed an arrearage in child support payments due from the father, the trial court erred in not calculating the amount thereof and in refusing to enter a monetary judgment for that amount. We agree. In Ex parte Morgan, 440 So.2d 1069 (Ala.1983), it was determined that past-due installments of child support create a final monied judgment which may be collected as any other judgment, that a garnishment proceeding is a legally permitted method of collecting such a judgment, and that garnishment may be issued in such a case without first obtaining a judicial determination as to the amount of child support arrearage. While the Morgan case concerned a divorced mother’s right to bring a garnishment proceeding to collect delinquent child support payments without such judicial ascertainment of an arrearage, in the instant case the mother requested that the trial court first calculate the arrearage in preference to seeking garnishment against the father’s employer for an amount which was uncertain.

The father admitted that he failed to pay the fifteen dollars weekly child support payments, or to otherwise provide for the support of the child, for a number of years starting on February 22, 1972, and that his delinquency continued at least until he started to totally support the child. While the latter date was uncertain under the evidence, a final judgment for fifteen dollars was automatically entered against the father each time that he failed to make the required weekly payment. Ex parte Morgan, 440 So.2d 1069.

The trial court did not calculate the ar-rearage and, in effect, eliminated the final judgments for past-due support which the mother already possessed. By refusing to calculate the arrearage and in failing to enter a monetary judgment therefor, the learned trial court prevented the collection of the accrued final judgments by execution, garnishment, or any other legal process. In this respect the trial court erred.

The mother contends that the trial court should not have required her to pay child support of $150 per month to the father by allowing credit of $150 each future month against the father’s undetermined arrearage. If a father has legal custody of a minor child, the mother may be required, under appropriate circumstances, to pay child support to the father and, under the ore tenus rule, a trial court’s judgment will not be disturbed upon appeal unless it was so unsupported by the evidence as to be plainly wrong and an abuse of discretion. Aplin v. Aplin, 423 So.2d 253 (Ala.Civ.App.1982). The needs of the daughter and the means of the parents to provide for her support are among the matters to be considered by a trial court in deciding the amount of child support and, in structuring the judgment, the trial court may not ignore the ability of the parents to pay. Stubbs v. Puls, 429 So.2d 1071 (Ala.Civ.App.1983).

Here, there was a total absence of evidence as to the needs of the daughter. The only evidence as to the ability of the parents to pay was that the father earned $13.30 per hour as wages (which, for forty hour weeks, would average about $2,300 as gross pay per month) and that the mother received from various state and federal agencies the total monthly amount of $561 for the support of her two sons, the six-year old being a mongoloid. The mother was not employed. There was no evidence of the monthly expenses which are incurred by either party. While there was evidence that the father has remarried, the testimony does not reveal how many persons are his dependents. Under these circumstances, we must hold that the evidence did not support an award to the father of $150 monthly from the mother as child support. Where governmental agencies provide funds to a mother for the support of a particular child or certain children, as a general rule, a trial court may not order those funds to be paid by the mother to a third person to be used for the support of another child who is not entitled thereto as a beneficiary of those agency funds.

For the foregoing reasons, the judgment of the trial court is reversed and this cause is remanded for the entry of a judgment which is consistent with this opinion.

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 of 1975 and this opinion is hereby adopted as that of the court.

REVERSED AND REMANDED.

All the Judges concur.


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    Pamela Louise (Pair) CLAYTON v. Kenneth Earl PAIR.
    Civ. 4174.
    Court of Civil Appeals of Alabama.
    Oct. 3, 1984.
    Dean Lee Hodges, Birmingham, for appellant.
    Phil Laird of Laird & Wiley, Jasper, for appellee.
   HOLMES, Judge.

This is a child custody case.

The Circuit Court of Walker County modified the original divorce decree, which awarded custody to the mother. After the modification hearing, custody of the two minor children was placed in the father.

The mother appeals, contending that the trial court erred in changing the custody of the children because there had been no material change in circumstances since the divorce and the best interest and welfare of the children were not served by the custody change.

Viewing the record with the attendant presumptions of correctness, the following is revealed:

The parties were married in October of 1976 and were divorced on July 6, 1983. During the course of the marriage, one child was born to the couple, and the mother’s child by a previous marriage was adopted by the father.

The original divorce decree awarded the custody and care of the two minor children, ages eight and six years, to the mother. The father was required to pay support and was given visitation rights.

The father picked up one of the children on December 2, 1983, exercising his visitation rights. After the visitation period, he refused to return the child and petitioned the court to modify the original divorce decree, giving him custody of both children.

On December 9, 1983, after the petition for modification was filed, the mother married again. She testified that, for two months prior to the marriage, her present husband lived with her and the children. There was testimony that during that period they shared the same bedroom, had sexual relations, and did so when the children were at home.

The mother stated that she had used marijuana since the divorce. There was evidence that the marijuana was kept in a bread pan under the bed and was used by others in addition to the mother. Testimony was presented that the mother had offered to sell the marijuana on one occasion.

There was no evidence that the mother used any other drugs; however, she did admit to drinking occasionally. There was testimony that the mother’s present husband drinks, and, on one occasion when someone was bringing the children back home, the husband was “so drunk he couldn’t hardly stand up.”

The mother testified that she had sex with three other men since her divorce and that some of them were married. On one particular morning, one of the children awoke to go to the restroom and came back to the bedroom to get in bed with her and the man.

In addition, the court heard evidence that the mother was a “filthy” housekeeper and, im some instances, left the children unattended in the afternoons while she was at work. These periods would range up to one hour and a half, leaving the children to walk around the trailer park without supervision.

The father testified that he worked as an operator in a mine for eight years and has been continuously employed. He married again in October of 1983. His present wife does not work and would be able to care for the children in the afternoons. The father stated that he and his wife attend church regularly and that he was also a coach for a little girls’ softball team in the summer.

According to the record, the father kept the child in December of 1983 because she wanted to live with him and not with her mother.

The trial court heard the evidence ore tenus: The judge that presided over the modification hearing also presided over the original divorce decree. Additionally, the trial judge indicated that he had interviewed the two children in camera, apparently without any objection by the parents. What transpired at this interview is not contained in the record before this court.

The court awarded custody to the father, giving the mother considerable visitation rights. The father was also released from all child support payments required by the original decree.

As stated, the mother, through able counsel, appeals, contending that there has been no material change in circumstances since the divorce decree and that the best interest and welfare of the children is not served by the change in custody. We disagree.

When the trial court renders its judgment after an ore tenus hearing on the petition to modify the child custody provision of a divorce decree, this court presumes that the trial court correctly applied its discretionary authority and adjudged the best interest of the child. We will not disturb the trial court’s judgment unless it is so unsupported by the evidence as to appear plainly wrong. Lightfoot v. Bylsma, 412 So.2d 813 (Ala.Civ.App.1982).

In modifying a child custody decree, the petitioning party has the burden to prove the following:

“[T]he ‘changed circumstance doctrine’ .... requires that the party seeking modification prove to the court’s satisfaction that material changes affecting the child’s welfare since the most recent decree demonstrate that custody should be disturbed to promote the child’s best interests. The positive good brought about by the modification must more than offset the inherently disruptive effect caused by uprooting the child.”

Wood v. Wood, 333 So.2d 826, 828 (Ala.Civ.App.1976).

Here, there was evidence that the mother used marijuana and that she and her present husband drank alcohol in the home. She admitted to living with her husband two months before she married him and also having sex with him while the children were home. The mother testified that she had sex with others, including married men, and, on at least one occasion, while the children were at home. In addition to these facts, testimony was heard that the mother was a filthy housekeeper and left the children unattended.

When a parent seeks custody, he must show that he is fit and that the change in custody “materially promotes” the child’s best interest and welfare. McLendon v. McLendon, [Ms.1984] 455 So.2d 863 (Ala.1984). Considering the father’s lifestyle and the evidence presented as to the mother’s activities, it appears that this burden has been met.

Additionally, when the parents agree to allow the trial court to interview the children in camera and the interview is not contained in the record on appeal, this court must presume that the interview supported the trial court’s findings. Small v. Small, 412 So.2d 283 (Ala.Civ.App.1982).

Finally, the mother contends in brief that the trial court’s action may have been based on the fact that the mother was married to her recently divorced, present husband in the state of Georgia. This marriage took place before the expiration of his sixty-day marriage prohibition period required by Alabama law.

The mother contends that the marriage was legally permissible. We need not specifically address this issue. This is so because we cannot say what the trial court’s action is based upon. However, we can say, as seen from the above, that the trial court’s action is amply supported by the evidence without resort to the permissibility of the Georgia marriage.

In view of all the facts, the father’s lifestyle in contrast to the mother’s way of life, and, in addition, the trial court’s in camera interview with the children, we cannot say that the court below erred in modifying the divorce decree, giving custody to the father.

The mother has requested an attorney’s fee for representation on appeal. In view of the above, the request is denied.

This case is due to be and is affirmed.

AFFIRMED.

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


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    Donna S. Thompson SASSER v. Gerald Wayne THOMPSON.
    Civ. 4345.
    Court of Civil Appeals of Alabama.
    Oct. 3, 1984.

      Richard H. Ramsey III, Dothan, for appellant.
    John Emory Waddell, Dothan, for appel-lee.
   HOLMES, Judge.

This is a child custody modification ease.

The mother and father were divorced in 1982. The custody of their then two-year-old child was placed with the father.

The mother then sought to modify the original custody decree and to gain custody of the minor child. The trial judge, after an ore terms hearing, refused to place custody of the child in the mother and ordered the following: “[Cjustody of the minor child of the parties ... is hereby awarded to her paternal grandparents ... pending further orders of the Court.”

The mother through able counsel appeals the trial court’s action and we affirm.

We note at this point that the same trial judge presided at both the original proceeding and the modification proceeding. This is significant because the learned trial judge in part in the modification order stated the following:

“[A]t that time [the original divorce proceeding] ... neither parent was a fit and proper person to have custody of this minor female child. Custody was placed in the father because the Court had before it evidence indicating that the defendant father was living with his parents, who impressed the Court as decent, moral, law-abiding people, who could and would provide a stable, wholesome home for both the defendant and the minor child.”

Put another way, this same trial judge during the original custody proceeding apparently determined that both the mother and the father were unfit to have custody of the child; however, custody of the child was placed in the father with the apparent understanding that both the father and the child would live with the paternal grandparents. The child has lived in the home of the paternal grandparents since the divorce in 1982.

We further note that no objection by way of an issue before this court, or otherwise, is made of the procedural aspects of the award of custody to the grandparents. As indicated below, the mother’s contention is that she should have been awarded custody-

The dispositive issue is whether the trial court erred in refusing to award the mother custody.

The facts pertinent to this issue are as follows: There is evidence that the mother is now married to a man convicted of possession of marijuana. There is also evidence that since the divorce the mother apparently had sexual relations with various men while the minor child was in her home and that the mother contracted venereal disease. Furthermore, testimony indicates that these facts were undisclosed to the Department of Pensions and Security representative at the time the mother’s home evaluation was prepared.

Additionally, as previously stated, the child has lived in the home of the paternal grandparents since the divorce. While there is evidence to indicate that certain conflicts exist between the father and the paternal grandparents, there is also evidence to indicate that the father will no longer be living in the home of the paternal grandparents.

We note that the mother has never had legal custody of the minor child since the divorce. This is significant in this instance, particularly in view of the statement by the trial judge regarding the parents as quoted hereinabove. Therefore, the following statements in an earlier decision regarding noncustodial parents appears to be pertinent in this instance:

“[A] natural parent has a prima facie right to custody of his child, as against the custody of a nonparent.
“The strong presumption favoring the natural parent as custodian applies to an initial custody determination, .... We find no authority for applying this presumption when a noncustodial parent is seeking modification of the prior custody decree.”

Lewis v. Douglass, 440 So.2d 1073, 1075 (Ala.Civ.App.1983). Consequently, the mother cannot properly rely upon a presumption that it is in the “best interest” of the child to place custody in a parent rather than grandparents. Actually, in this instance, only the father, if either parent, could properly rely upon such a presumption because the father, rather than the mother, was the custodial parent subsequent to the divorce. The father, as indicated, has not appealed.

Furthermore, regarding the mother’s argument that it is in the child’s “best interest” to be placed in the custody of the mother, we note that the burden is on the petitioner for modification of a custody decree to establish the following:

“[Tjhe 'changed circumstance doctrine' .... requires that the party seeking modification prove to the court’s satisfaction that material changes affecting the child’s welfare since the most recent decree demonstrate that custody should be disturbed to promote the child’s best interests. The positive good brought about by the modification must more than offset the inherently disruptive effect caused by uprooting the child.”

Wood v. Wood, 333 So.2d 826, 828 (Ala.Civ.App.1976).

In determining whether modification of the custody decree would promote the “best interests” of the minor child, we note that the Alabama Supreme Court determined that in order to show “that the child’s interests are promoted by the change,” the mother must “produce evidence to overcome the ‘inherently disruptive effect caused by uprooting the child.’ ” McLendon v. McLendon, 455 So.2d 863 (Ala.1984) (cite omitted).

In the McLendon decision, in which the mother sought to modify a custody decree that had placed custody of the child in the grandparents, the Alabama Supreme Court determined as follows:

“The most that the mother has shown is that her circumstances have improved, and she is now able to provide for the child in the same manner in which the grandparents have been providing for her. She failed to show that changing the custody materially promotes the welfare and best interest of the child.”

McLendon v. McLendon, 455 So.2d 863 (Ala.1984).

Therefore, in this case the mother has failed to show that to in effect change the custody of the minor child would materially promote the “best interest” of the child.

In view of the evidence regarding the mother’s marriage to a man convicted of possession of marijuana, the evidence that the mother apparently had sexual relations with various men while the minor child was in her home, and the evidence that the mother contracted venereal disease since the divorce, we cannot even say that her circumstances have improved so that she is now able to provide for the child in the same manner as the grandparents. We, therefore, affirm the trial judge’s decision to place custody of the minor child in the paternal grandparents.

The father has filed with this court a motion under Rule 38, Alabama Rules of Appellate Procedure. This motion is denied.

AFFIRMED.

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


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    STEBBINS ENGINEERING & MANUFACTURING COMPANY, a Corporation v. J.T. WHITE.
    Civ. 4352.
    Court of Civil Appeals of Alabama.
    Oct. 3, 1984.

      Max Hudson of London, Yancey, Clark & Allen, Birmingham, for appellant.
    W.H. Rogers, Moulton, for appellee.
   HOLMES, Judge.

This is a workmen’s compensation case.

The Circuit Court of Lawrence County awarded the employee permanent and total disability benefits arising out of an on-the-job injury. The employer appeals, through able counsel, contending that the trial court erred in finding that the employee was permanently and totally disabled. Additionally, the employer argues that a credit is due for the post-injury wages paid to the employee.

The record reveals, when viewed under the appropriate standard of review, that the employee was forty-three years old. He has a sixth grade education and is almost illiterate. When the employee quit school, he was employed as a farm worker for ten years, performing tasks such as driving machinery and planting crops.

After leaving the farm, he worked at a dairy for a short time, milking cows. Later, he was employed by a hatchery as a manual laborer.

At the time of the injury made the basis of this suit, the employee was a laborer on construction for the employer. During this time of employment the employee injured his back.

Subsequent to the injury, the employee sought medical treatment several times for his pain, finally resorting to surgery. The operation gave him some relief but did not cure the back injury. He still has pain in his back and legs and has difficulty sleeping, walking, and sitting for long periods of time.

The employee’s doctor instructed the employee not to perform construction work, but light work was permissible. After the surgery the employee did work three months at a cleaning job for another employer. At the cleaning job the employee would work for fifteen minutes and rest for fifteen minutes to relieve the pain. Since that time, he has been unable to find work that he can perform.

The employee’s doctor testified by deposition that the employee has a physical impairment of fifteen percent to the body as a whole.

Both parties stipulated that $161 per week was the maximum compensation benefit payable at the time of the injury. This amount has been paid by the employer for a period of forty-eight weeks and five days.

The trial court found that the employee was permanently and totally disabled and awarded him a sum of $16,744. This amount represented $161 per week for the time between the injury and the judgment, 104 weeks. The amount was reduced by almost $8,000 for the benefits already paid. The court also awarded the employee $161 per week for his future disability, to be paid during the plaintiffs permanent total disability.

As indicated, the employer appeals, contending that the trial court erred in awarding the employee workmen’s compensation benefits based on a permanent and total disability.

This court must apply the standard of review applicable in a workmen’s compensation case. This standard requires that this court determine if there is any legal evidence, or reasonable inference therefrom, to support the trial court’s judgment. The weight and preponderance of the evidence is not before us on a review by certiorari, and if there is any evidence to support the trial court’s determination, we must accept those findings. Roberts v. Frit Industries, 437 So.2d 1038 (Ala.Civ.App.1983).

The term “total disability” does not mean absolute helplessness or entire physical disability but, rather, can be defined as the. inability to perform the work of one’s trade or the inability to obtain reasonably gainful employment. Bankhead Forest Industries Inc. v. Lovett, 423 So.2d 899 (Ala.Civ.App.1982).

Although there was medical testimony that the employee was impaired at fifteen percent of his body as a whole, there was no evidence that the medical opinion considered the age, education, past work history, and the effect of the injury on the employee’s earning ability. The court may consider these factors before making a determination of disability. Edwards v. City of Huntsville, 49 Ala.App. 498, 273 So.2d 475 (Ala.Civ.App.1973).

In Carroll Construction Co. v. Hutcheson, 347 So.2d 527, 530 (Ala.Civ.App.1977), there was expert testimony that the employee had a disability of five percent to the body as a whole. This court stated the following: “Expert medical opinion as to the nature, extent and permanency of a disability in a workmen’s compensation case is not conclusive on the trier of fact even if the testimony is uncontroverted.” Further, the court found that other factors must be considered in making the disability determination and awarded the employee benefits based on permanent total disability-

Here, there was evidence that the employee was forty-three years old and only had a sixth grade education. There was also evidence that he could read very little and could only write his name. Additionally, the employee had never performed any work except manual labor and was not trained for any other employment. In his present condition, the employee can only do light work and is unable to lift, climb, or even stand for any length of time. It appears that the trial court did not err in the award of permanent total disability benefits when considering the above factors as affecting loss of earning ability.

The employer also contends that credit should be given for the three-month period after the injury when the employee was working for another employer. We disagree.

In TG & Y Stores Co. v. Higdon, 437 So.2d 1035 (Ala.Civ.App.1983), an employer sought a credit for the wages earned by a temporarily totally disabled employee who worked part-time after the injury. This court stated that, even though the employee attempted to work “full-time,” no credit would be given when the injury caused her considerable pain and actually hampered the time that she could work.

In the instant case, the employee worked an eight-hour shift for three months. He was able to work only fifteen minutes at a time and then rest fifteen minutes. There was evidence that the work caused him considerable pain, and, therefore, no doubt he was hampered by the injury.

Additionally, there was no evidence offered to show the amounts paid to the employee during this period in order to determine the credit sought.

When considering the factors of age, education, work experience, and the loss of earning ability, along with the fact that the employee was greatly hampered by the injury during his short post-injury employment, we cannot say that the trial court erred in the determination of permanent total disability and in the denial of a credit for other pay.

This case is due to be and is affirmed.

AFFIRMED.

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


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    AAA EMPLOYMENT, INC. v. James WEED.
    Civ. 4288.
    Court of Civil Appeals of Alabama.
    Oct. 10, 1984.

      R. Bruce Hall of Conaway, Hall, Carter & Bledsoe, Dothan, for appellant.
    Joel W. Weatherford of Farmer, Price, Espy & Smith, Dothan, for appellee.
   EDWARD N. SCRUGGS, Retired Circuit Judge.

This is a malicious prosecution case concerning a prior civil action which was filed against Weed by the present defendant, AAA Employment (the agency).

Weed was unemployed and signed an agreement with this employment agency whereby he was to pay certain placement fees to them if he accepted a position which was obtained through their efforts. In the small claims court the agency subsequently sued Weed for $500 for a placement fee and that case was dismissed for want of prosecution on the date that it was scheduled for trial. Weed’s action against the agency for the malicious prosecution of the small claims case resulted in a nonjury trial before the circuit court. A judgment was rendered in favor of Weed for $750. The agency appealed and raises three primary issues for our determination — the sufficiency of the evidence as to (1) probable cause, (2) malice, and (3) damages.

Since conflicts occurred in the evidence, we generally summarize only that testimony which tends to support Weed’s case in order for us to determine if there was any competent evidence which upholds the judgment of the trial court; and, in viewing the evidence in accordance with the applicable presumptions, the following is pertinently revealed by the record.

The contract between the parties was explained to Weed before its execution. He correctly understood that if he even verbally accepted employment as a result of the efforts of the agency he would be liable for a placement fee. Weed was referred by the agency to a particular prospective employer, Better Brands, and he discussed his possible employment with Adkins, their shop foreman. According to Weed, he did not accept the job that day since he needed to discuss that particular employment with his wife since Better Brands distributed beer. When he saw her shortly after the Adkins interview, Mrs. Weed vetoed that employment on moral or religious grounds. That afternoon, Weed received a telephone call from the agency’s secretary, who congratulated him about his obtaining employment with Better Brands, whereupon he informed her that he had not accepted that job. The next day Adkins was informed by Weed that he could not work for Better Brands because of the beverage problem.

Adkins gave a written statement to the agency before they filed the small claims case. Therein, he stated that he had requested the agency to assist him in obtaining a helper, that they sent Weed, and that he and Weed talked about the job. “I was under the impression that he wanted the job.” Weed did not appear for work on the following day but later telephoned Adkins and told him that he could not work at a beer company since Mrs. Weed did not approve of that type work.

At the trial Adkins testified to the same facts as were contained in his written statement and he further testified that Weed never filled out an application or signed a time card. He swore that Weed did not ever state to him that he wanted the job or that he would commence work the next morning or at any other time. Adkins called the agency the day following the interview when Weed did not appear for work. Adkins was under the impression that Weed “was going to take the job.”

A day or two after the Adkins interview, the secretary of the agency called Weed again and inquired as to why he did not present himself for work at Better Brands, and Weed again told her that he had not accepted the job because of his wife’s objections.

A few days later Weed received a collection letter for the placement fee from Palmer, another employee of the agency. Weed testified that he saw Palmer the next day and repeatedly told Palmer, the secretary, and the agency’s manager that he had not accepted the Better Brands job and did not owe any placement fee.

Adkins had previously told Weed that Adkins left his work at 4 p.m. It is not controverted by the evidence that around 5 p.m., when Palmer and Weed were discussing whether he had accepted the job, Palmer acted as if he then telephoned and was carrying on a telephone conversation with Adkins in Weed’s presence. Palmer told Weed that Adkins said that Weed had indeed accepted the position. However, that same afternoon Weed telephoned Adkins at his home and Adkins denied to him that he had talked to anyone from the agency on that day.

Palmer, with full authority from the agency, signed the small claims complaint against Weed, who employed counsel to represent him in that case. It was later dismissed for want of prosecution.

Many of the above facts were disputed and controverted by the testimony of the agency’s witnesses.

To succeed in an action for malicious prosecution based upon a prior civil case, the plaintiff must prove these essential elements: (1) that a civil action was filed by the defendant against the plaintiff, (2) which was instigated by the defendant maliciously and (3) without probable cause (4) with the civil action being terminated favorably to the plaintiff, (5) who suffered damage as a proximate result of the suit. First Shelby National Bank v. Mitchell, 406 So.2d 959 (Ala.Civ.App.1981); Gamble v. Webb Quarterback Club, 386 So.2d 455 (Ala.Civ.App.), cert. denied, 386 So.2d 459 (Ala.1980); Ford Insurance & Real Estate Co. v. Thrasher, 45 Ala.App. 592, 234 So.2d 590 (Ala.Civ.App.1970).

The question evolves whether the agency, under the facts as we have summarized them, had probable cause to institute the small claims civil action against Weed. If any necessary particular fact upon the issue of probable cause was disputed in and by the evidence, a question of fact was presented for the decision of the trier of facts, which was the trial court in this case. Key v. Dozier, 252 Ala. 631; 42 So.2d 254 (1949); Gamble v. Webb Quarterback Club, supra. Since an ore tenus nonjury trial was conducted before the trial court, its findings of fact are presumed to be correct upon appeal and will not be disturbed if they are supported by the evidence, or any reasonable inference thereon, unless they were palpably wrong. Drill Parts & Service Co. v. Joy Manufacturing Co., 439 So.2d 43, 52 (Ala.1983). “Probable cause in malicious prosecution cases can be defined as that state of facts which would lead a person of reasonable prudence to honestly believe the claims put forth in the prior suit would prevail.” First Shelby National Bank v. Mitchell, supra, at 961 (citations omitted). In deciding whether probable cause existed, this court must weigh the agency’s actions in light of the facts as they appeared at the time the small claims suit was filed. Gamble v. Webb Quarterback Club, supra.

While the agency may have entertained at one time the impression that Weed accepted the job, he testified that he corrected that impression by informing them on many occasions before the small claims suit was filed that he had never consented to take the job with Better Brands. Palmer did not testify. If Weed’s uncontroverted testimony about the Palmer interview was accepted by the trial court, Palmer’s conduct regarding the purported 5 o’clock conversation with Adkins was reprehensible and could have been given much weight in deciding the probable cause question. Additionally, the written statement from Adkins merely indicates that he was “under the impression” that Weed “wanted the job.” That is a far cry from a positive statement that Weed accepted the proffered employment. In that regard Adkins testified that Weed never stated to him that he wanted the job or that he would be at work the next day, which information was undoubtedly available to the agency upon inquiry from Adkins before they filed the small claims complaint. In that respect Adkins’s evidence supports Weed’s contention that he did not accept the job. In short, there was sufficient evidence from which the trial court could conclude that, prior to instigating the small claims proceedings, the agency knew, or should have known, that Weed never accepted employment with Better Brands. The agency was certainly aware that, if the job was not accepted by Weed, no placement fee was due by him to the agency. Hence, there was sufficient evidence to support the trial court’s conclusion that the agency lacked probable cause to bring the small claims action against Weed.

For the same reasons and based upon those same supportive facts, we also conclude that the evidence was adequate to uphold the trial court’s finding of malice. A rebuttable factual presumption of malice arises from a lack of probable cause in malicious prosecution cases. First Shelby National Bank v. Mitchell, supra. The trial court could have validly decided that the agency’s evidence did not overcome that presumption.

The trial court awarded a judgment to Weed of $750. There was no direct evidence of any compensatory damage suffered by Weed by virtue of the small claims action except that, at the conclusion of the trial, the trial court inquired about and was informed that Weed’s attorney’s fees in defending the small claims case amounted to $200. In malicious prosecution cases, the recoverable attorney’s fees are the reasonable amounts paid to the plaintiff’s attorney to defend the initial action and not the actual amounts so paid. Hawkins v. Collins, 5 Ala.App. 522, 59 So. 694 (Ala.Ct.App.1912). However, we cannot ascertain from the record that the trial court included the $200 or any other particular sum for the attorney’s fee in the judgment award. Both compensatory and punitive damages are allowed in malicious prosecution cases and are left to the sound discretion of the trier of facts, and the award will not be interfered with on appeal unless the amount is so excessive as to show passion or prejudice or some other improper sentiment. Key v. Dozier, supra. Weed proved nominal damages at least in employing an attorney and in Weed’s attendance with his counsel at the small claims court for trial. Once actual damages, even nominal damages, are established, punitive damages may be awarded if it is a proper case to do so. National Sales Insurance Co. v. Jones, 393 So.2d 1361 at 1368 (Ala.1980). Generally, however, punitive damages can be awarded in malicious prosecution cases only if there is some evidence indicating that the defendant’s motivation in instituting the prior action was more than mere malice and, in that respect, a defendant’s wanton disregard of the rights of the plaintiff may constitute the required degree of malice. First Shelby National Bank v. Mitchell, supra.

For the same factual reasons which have been previously detailed and discussed herein, we also determine that the evidence was sufficient to support a legitimate inference that the agency was motivated by more than mere malice when it filed the small claims action. In that regard we pay special heed to the uncontro-verted sham telephone conversation which Palmer represented to be with Adkins. Consequently, the award of punitive damages was authorized by the evidence and was not excessive.

We affirm.

The court denies Weed’s request under rule 38, Alabama Rules of Appellate Procedure, for double costs and damages, including his attorney’s fees on appeal.

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 section 12-18-10(e), Code 1975, and this opinion is hereby adopted as that of the court.

AFFIRMED.

All the Judges concur.


author: BRADLEY, Judge.

text:
    Jack Wesley DUKE v. Rubye Nelle DUKE.
    Civ. 4314.
    Court of Civil Appeals of Alabama.
    Oct. 10, 1984.

      Ryan deGraffenried, Jr. of deGraffenried & Hawkins, Tuscaloosa, for appellant.
    David L. Carroll of Rosen, Harwood, Cook & Sledge, Tuscaloosa, for appellee.
   BRADLEY, Judge.

This appeal is from a final divorce decree. Jack Wesley Duke petitioned the Circuit Court of Tuscaloosa County for a divorce from his wife, Rubye Nelle Duke. His complaint alleged incompatibility of temperament and irretrievable breakdown of the marriage.

The cause was convened for trial on September 23, 1983. After this hearing the trial court divorced the parties tentatively on the ground of incompatibility of temperament, but reserved the right to change the grounds of divorce should the evidence so warrant. Apparently, the trial court did not want to make a final decision until the wife had an opportunity to present evidence on her behalf. The trial next convened on January 3, 1984. Subsequently, the wife filed an amended counterclaim, alleging that the husband committed acts of adultery with various women, and asking that the parties be divorced on the grounds of adultery and incompatibility. In January 1984 the trial court issued a final judgment divorcing the parties on the ground of adultery committed by the husband. The court ordered the husband to pay the wife $10,000 alimony in gross and to pay $600 per month in periodic alimony. In addition, the court divided the parties’ property.

On appeal the husband contends (1) that the award of $600 per month periodic alimony to the wife was excessive and unsupported by the evidence, and (2) that the trial court erred in granting the divorce on the ground of adultery.

At the trial the wife testified that her husband had been leaving their home three or four nights a week, and that he eventually moved out of their home on September 14, 1982. Two witnesses testified that they had been intimate with the husband. Ms. Tidmore stated that she had intercourse with the husband in July 1978, shortly after she began working in his business. The wife had no knowledge of this affair at the time it occurred. Ms. Kelly testified that she now lives with the husband and first had intercourse with him around July 1983. There was, therefore, substantial evidence introduced at trial that tended to support an accusation of adultery on the part of the husband.

The husband asserts, however, that Ms. Kelly’s testimony refers to incidents occurring after he filed his complaint for divorce in January 1982, and, therefore, such evidence is not sufficient to support a divorce on the ground of adultery. See Hilley v. Hilley, 275 Ala. 617, 157 So.2d 215 (1963). In Hilley the wife filed a complaint seeking divorce on the ground of cruelty and the husband defended on the ground that she was not entitled to a divorce because she had committed adultery. The husband did not seek a divorce by way of a crossbill; he merely defended against the action by asserting the wife was not entitled to a divorce because of recrimination, i.e. she was guilty of adultery. The supreme court held that where the husband has accused his wife of adultery committed prior to the filing of the wife’s suit for divorce, evidence of the alleged adultery of the wife subsequent to that date was inadmissible and irrelevant to support an accusation of adultery allegedly committed prior to filing suit for divorce in the absence of evidence supporting the allegations of the complaint.

We consider the controlling case on this point to be Rudicell v. Rudicell, 262 Ala. 41, 77 So.2d 339 (1955). In Rudicell the wife filed for divorce from her husband on the ground of cruelty. The husband answered, denying her allegations, and, later, filed a crossbill alleging that his wife, prior to their separation, committed acts of adultery. The court stated that evidence of adultery by the wife committed after the crossbill was filed was admissible but would not sustain a decree of divorce unless such evidence corroborated evidence of adultery committed prior to the filing of the crossbill. There was evidence in the record supportive of the crossbill, thus the evidence of subsequent acts of adultery was relevant to the allegations of the cross-bill. The grant of a divorce to the husband for the wife’s adultery was upheld.

In the case at bar there was testimony which dealt with the husband’s adulterous activities prior to filing of the wife’s amended counterclaim in January 1984. Such evidence is sufficient to support the trial court’s grant of divorce on the ground of adultery.

Husband’s other contention is that the award of periodic alimony was excessive and unsupported by the evidence.

The husband and wife were first married ' in 1951. They had one son by their marriage, who was nineteen at the time of this divorce. The parties were first divorced on May 4, 1970 and remarried each other in the same year. Except for their brief divorce in 1970, this couple had been together for almost thirty-one years. The wife is forty-seven years old and suffers from pain in her left leg, due to a leg injury incurred in childhood. She is employed at Druid City Hospital as a licensed practical nurse and makes $390 every two weeks. The husband is a master electrician, holds a commercial flying license, and is engaged in the business of aerial application (crop dusting). He is a primary owner and stockholder of Mid-South Aerial Applicators. The book value of the common stock that he owns in Mid-South was $13,239 in 1982. The husband’s salary from Mid-South in 1982 was $21,000. He also received rental income from Mid-South in the amount of $18,000 in 1979, 1980, and 1981 for the rent and use of equipment, air tanks, and airplanes used in the aerial application business. Husband’s tax returns showed that in 1978 he had earnings of $35,349, in 1979 earnings of $27,249, in 1980 $20,043, and in 1981 he had a reported loss of $1,810. The losses in 1981 appear to be in part a result of expenditures that the husband made in promoting and manufacturing a device known as a Velpar unit, a device which is used in the aerial application business. Moreover, a certified public accountant who prepared the husband’s financial statement in 1982 calculated his net worth at $368,398 (total assets minus unrealized taxes and liabilities). Approximately $300,000 of this total represented land that the parties owned. The husband also owns various dividends and accounts in local banks.

In a divorce action the trial court has the authority to award periodic alimony, the amount being in the discretion of the court depending upon the facts of the case. Foreman v. Foreman, 379 So.2d 89 (Ala.Civ.App.1980); Kabaci v. Kabaci, 373 So.2d 1144 (Ala.Civ.App.1979). Such an award will not be overturned except for an abuse of discretion. Maddox v. Maddox, 276 Ala. 197, 160 So.2d 481 (1964). In making such an award the trial court is authorized to consider such factors as: the length of the marriage, the ages and health of the parties, the future employment prospects of the parties, the standard of living to which the parties have become accustomed during the marriage, and the conduct of the parties. Masucci v. Masucci, 435 So.2d 120 (Ala.Civ.App.1983); Goodwin v. Goodwin, 364 So.2d 678 (Ala.Civ.App.1978).

In this case the parties have been married for a long time and enjoyed a fairly good standard of living. The husband apparently has good business prospects and derives income from several sources. The wife, however, has minor physical problems and receives a substantially lower salary than does her husband. The wife testified that she needed $2,000 a month to maintain a minimum standard of living. The court’s award enables the husband to continue to earn a livelihood and further enables the wife to maintain the standard of living which she enjoyed prior to the divorce.

Therefore, in light of the evidence, the trial court’s award was not excessive and did not constitute an abuse of discretion. Accordingly, we affirm the decree of the trial court.

AFFIRMED.

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