author: ROBERTSON, Justice,

text:
    Linda GOODWIN (Jones) v. GULF TRANSPORT COMPANY.
    No. 54993.
    Supreme Court of Mississippi.
    Aug. 8, 1984.
    C.R. McRae, Pascagoula, for appellant.
    H. Rodger Wilder, Eaton, Cottrell, Galloway & Lang, Gulfport, for appellee.
    Before ROY NOBLE LEE, P.J., and ROBERTSON and SULLIVAN, JJ.
   ROBERTSON, Justice,

for the Court:

This appeal arises from a personal injury action brought by a passenger against a bus company. The passenger claims that, while exiting the bus, she stepped on a slippery substance, fell and was hurt. The trial court held that the passenger failed to prove the bus company’s actual or constructive knowledge of the slippery substance and directed a verdict against the passenger. We affirm.

On June 30, 1976, Linda Goodwin (Jones) was a passenger for hire on a Gulf Transport Company bus heading for Pascagoula, Jackson County, Mississippi. En route she developed a toothache and asked the driver if she could get off the bus in Lucedale to get some aspirin. When the bus reached Lucedale, the driver got off. Shortly thereafter Goodwin alighted, slipped and fell.

Exiting the bus involves walking down three steps. Goodwin attempted to negotiate these steps but when her foot reached the second she encountered a red liquid and fell, sustaining the injuries complained of here.

No evidence adduced at trial explained what the red liquid was, how it got on the step or how long it had been there. There was certainly no evidence that it was put there by anyone associated with Gulf Transport. Goodwin further failed to show that anyone associated with the bus company—the bus driver in particular—had notice of the liquid. The evidence was equivocal as to whether other people had used the steps of the bus during the time between the bus driver’s exit and Goodwin’s fall.

Gulf Transport Company is a carrier of passengers for hire. As such it is required to exercise the highest degree of care and diligence for the safety of its passengers. On the other hand, Gulf Transport does not, by virtue of its contract of carriage or of the positive law of the state, become an insurer of its passengers’ safety. It may be held liable for personal injuries only where those have been caused by the carrier’s failure to exercise this highest degree of care.

Goodwin concedes that she bears the burden of proof on the liability phase of the case. She insists, however, that because Gulf Transport is a common carrier, all she need show to establish a prima, facie case, and thus avoid a directed verdict, is that: (1) she was a passenger on the Gulf Transport vehicle; (2) the accident occurred; and (3) she was injured. Such proof Goodwin contends creates a presumption of negligence, albeit one rebuttable. In support she cites Stokes v. Saltonstall, 38 U.S. (13 Pet.) 181, 192-193, 10 L.Ed. 115 (1839), which being on a point of common law is hardly binding here.

We have cases which discuss a presumption of the sort urged by Goodwin, but we do not read these cases to announce a general rule. They involve railroads and refer to a presumption derived from a specific statute originally enacted in 1880 and amended and recodified periodically up to its present form in Miss.Code Ann. § 13-1-119 (1972) which announces that

“Injury inflicted by the running of the locomotive or cars of such company shall be prima facie evidence of want of reasonable skill and care.”

This statute yields Goodwin no advantage because this railroad presumption has never been applied to other types of carriers, see Tri-State Transit Co. v. Mondy, 194 Miss. 714, 725-26, 12 So.2d 920, 922 (1943) (bus was carrier and applicability of statute was denied), nor from its terms or its history is there any basis for inferring an application to carriers other than railroads. Chicago, St.L. & N.O. R.R. Co. v. Trotter, 60 Miss. 442, 446 (1882). Regarding injuries on public buses, “[t]he burden of proof is upon plaintiff to show by a preponderance of the evidence that the defendant was guilty of negligence.” Gates v. Greyhound Corp., 197 F.Supp. 341, 344-45 (S.D.Miss.1960).

The upshot of all this is that Goodwin was too optimistic in her reliance upon Saltonstall. In Mississippi, the presumption of negligence is applicable only to railroads, and further, the presumption appears to yield no greater advantage than does the doctrine of res ipsa loquitur. There are, therefore, no special presumptions relating to common carriers such as buses that Goodwin may invoke so as to alleviate her burden of going forward with proof of negligence.

Mississippi is not alone in its refusal to create any presumption of negligence of the sort urged by Goodwin here. Suffice it to note a general statement of the rule found throughout the country as articulated in Annotation, Liability of Motor Carrier to Passenger Injured from Fall because of Litter, Debris, or Object on Floor of Bus, 74 A.L.R.2d 1336 (1960), to wit:

“The courts have agreed, in the few cases in which the point has been discussed, that no presumption of negligence on the part of a bus company arises from the mere fact that a passenger fell on litter, debris, or an object on the floor of the bus, but rather have held that it is incumbent on the plaintiff to present extrinsic facts showing that the carrier was negligent.” 74 A.L.R.2d at 1339.

Our general rules applicable in slip- and-fall cases provide the proper framework for evaluating Goodwin’s claims. Under our law, before a party such as Gulf Transport may be held liable for personal injuries proximately caused by a passenger’s slip and fall on a slippery substance on the bus, the plaintiff must provide credible evidence (a) that the substance was put there by the bus company or one of its agents, or (b) that it was otherwise within the company’s actual knowledge, or (c) that the substance had been on the floor of sufficient length of time that the bus company, had it been exercising the highest degree of care, would have obtained knowledge of it. Douglas v. Great Atlantic & Pacific Tea Co., 405 So.2d 107, 110-111 (Miss.1981).

In evaluating such a claim, we recognize, of course, our procedural posture. Plaintiff has rested and Defendant has moved the Court for a directed verdict, urging that the evidence is insufficient as a matter of law to support a verdict for Plaintiff, assuming, of course, that Defendant goes forward and offers no proof.

The rules by reference to which we consider such a motion are set forth in General Tire and Rubber Company v. Darnell, 221 So.2d 104, 105 (Miss.1969); Paymaster Oil Co. v. Mitchell, 319 So.2d 652, 657 (Miss.1975); and City of Jackson v. Locklar, 431 So.2d 475, 478 (Miss.1983). Those cases involved requests for peremptory instructions or motions for judgment notwithstanding the verdict. The same standards apply when a motion is made for a directed verdict at the close of the plaintiff’s case except that at that time all the evidence the court has before it is that offered by the plaintiff. Edwards v. Cleveland Food, Inc., 437 So.2d 56 (Miss.1983).

In the Edwards case, plaintiff claimed that she slipped and fell on a slippery substance in defendant’s grocery store. Because there was evidence, albeit weak, from which it could fairly have been interpreted that the slippery substance had been known to the defendant prior to plaintiff’s fall, we held that plaintiff had made out a prima facie case sufficient to withstand a motion for directed verdict.

In the case at bar, however, there is no such proof. Plaintiff does not even try to show that the red liquid was put there by an agent or employee of the bus company or that the company had actual knowledge of it. Only half-heartedly does she assert that the bus company had constructive knowledge and adequate time to clean up the substance prior to the fall. Our review of the record reflects no evidence sufficient to charge Defendant bus company with actual or constructive notice, even accepting that the company has a high duty of care to its passengers. Hollie v. Sunflower Stores, Inc., 194 So.2d 217, 220-22, (Miss. 1967); Sears, Roebuck & Co. v. Tisdale, 185 So.2d 916, 918 (Miss.1966).

In a nutshell, Plaintiff has placed her eggs in the basket of the prima facie theory discussed above. Failing there, her appeal fails altogether.

AFFIRMED.

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

PATTERSON, C.J., and BOWLING, J., not participating.


source: Caselaw Access Project

author: HAWKINS, Justice,

license: Public Domain

text:
    Mary Virginia KNEBEL v. CITY OF BILOXI and Civil Service Commission.
    No. 54996.
    Supreme Court of Mississippi.
    Aug. 8, 1984.

      Charles T. Sykes, Jr., Gulfport, for appellant.
    Michael B. McDermott, Page, Mannino & Peresich, Biloxi, for appellees.
    Before WALKER, P.J., and BOWLING and HAWKINS, JJ.
   HAWKINS, Justice,

for the Court:

Mary Virginia Knebel appeals from a judgment of the Circuit Court of the Second Judicial District of Harrison County, upholding the Civil Service Commission of the City of Biloxi in approving her discharge as a city patrolman.

The issue before us is the right of a police department under certain circumstances to order an employee to take a polygraph test, the refusal of which authorizes the department to discharge the employee.

We hold the facts of this case justified such order and affirm.

On Tuesday, June 29, 1982, the Narcotics Units of the Biloxi Police Department was in the process of searching a residence and making arrests of two female occupants. Knebel, driving her private automobile, and accompanied by Pat Blanchard, a police dispatcher, stopped. She asked Officer Richard L. Giraud what he was doing there, prompting the response from the latter of what she was doing there. Kne-bel either said she was visiting friends, or there to pick up a friend. Giraud then asked her if it was the house he pointed to (the house being searched), and she said it was. Whereupon Giraud told her that her friend had been “busted”, and again upon inquiry from Knebel, he said it was for a narcotics violation. Knebel’s curiosity persisted, what kind of violation? The reply: marijuana. Felony or misdemeanor? Felony. Knebel then said she had better leave, and she drove off with Blanchard.

Upon being questioned, the women in the house told the officer that Knebel had upon occasion visited the house, had purchased marijuana, and had smoked it in the house.

Giraud reported this to his superior which resulted in a department investigation. The Director of Public Safety of the Biloxi Police Department, Giraud’s superi- or, directed an administrative investigation, but no criminal proceeding. Thereafter, upon being questioned, Knebel said the two occupants of the house were friends, but she denied she had bought or used any marijuana. When asked if she would take a polygraph test, she said she would have to consult an attorney.

Officer Blanchard admitted when she was questioned she had been to the house and had one time seen some marijuana. Blanchard refused outright the request to take a polygraph test.

Knebel was told the investigation was administrative, not criminal, and nothing she said would be used against her in a criminal proceeding.

A few days later Knebel reported to Director Lower that she would not take a polygraph test. She was ordered to take one, and upon her refusal, she was suspended.

A departmental hearing was conducted, resulting in a vote of three-to-two to discharge her. Knebel appealed to the city’s civil service commission, which upheld her termination. She then appealed to the Circuit Court, and from the adverse decision of that court she has appealed.

There were in effect regulations of the city which require that under certain circumstances an employee may be directed to take a polygraph test, and refusal to do so will constitute ground for discharge. The reason the officer gave for her discharge was “insubordination”, the refusal to comply with a lawful order.

LAW

There is no need to recite the administrative steps taken in the process of investigating Knebel, or the precise regulations. All administrative proceedings accorded her due process.

Knebel claims a 5th and 6th Amendment right under the United States Constitution, and a 26th Amendment right under our Constitution not to take the test. Also, she states thee was no grant of immunity from criminal prosecution, the city was without power to grant such immunity, and therefore, she had a constitutional right to refuse to take the polygraph test.

On June 30, 1981, Knebel was advised of her rights under the following form which she and Giraud signed:

1. You have no right to remain silent. You have an obligation to truthfully answer questions put to you. You are advised that your statements or responses constitute an official police report.
2. If you refuse to answer questions put to you, you will be ordered by a superior officer to answer the question.
3. If you persist in your refusal after the order has been given to you, you are advised that such refusal constitutes a violation of the Rules and Regulations of the Biloxi Police Department 30.18 and will serve as a basis for which your discharge will be sought.
4. You are further advised that by law any admission made by you during the course of this hearing, interrogation or examination cannot be used against you in a subsequent criminal proceeding. [Emphasis added]

In Garrity v. New Jersey, 385 U.S. 493, 87 S.Ct. 616, 17 L.Ed.2d 562 (1967), police officers being questioned by the state attorney general’s office were told they did not have to answer any questions and anything they said could be used against them. They were also told refusal to talk would subject them to removal from office. They talked; they were prosecuted; their statements were used against them at trial.

The U.S. Supreme Court held the statements were coerced and inadmissible. “The choice given petitioners was either to forfeit their jobs or to incriminate themselves. The option to lose their means of livelihood or to pay the penalty of self-incrimination is the antithesis of free choice to speak out or to remain silent.” [385 U.S. at 497, 87 S.Ct. at 618, 17 L.Ed.2d at 565]

The court then held the method of obtaining the statements precluded their use in a criminal proceeding.

In Gardner v. Uniformed Sanitation Men, 392 U.S. 273, 88 S.Ct. 1913, 20 L.Ed.2d 1082 (1968), the court considered whether a city could fire an employee who had been subpoenaed for a grand jury and who refused to sign a waiver of his 5th Amendment right. The court held the discharge invalid.

While the Supreme Court in Lefkowitz v. Turley, 414 U.S. 70, 94 S.Ct. 316, 38 L.Ed.2d 274 (1973), held that an architect who refused to sign a waiver of immunity from prosecution could not for such reason have his public contract cancelled, or be prevented from doing business with the state, the court also observed:

We should make clear, however, what we have said before. Although due regard for the Fifth Amendment forbids the State to compel incriminating answers from' its employees and contractors that may be used against them in criminal proceedings, the Constitution permits that very testimony to be compelled if neither it nor its fruits are available for such use. Kastigar v. United States [406 U.S. 441, 32 L.Ed.2d 212, 92 S.Ct. 1653 (1972)], supra. Furthermore, the accommodation between the interest of the State and the Fifth Amendment requires that the State have means at its disposal to secure testimony if immunity is supplied and testimony is still refused. This is recognized by the power of the courts to compel testimony, after a grant of immunity, by use of civil contempt and coerced imprisonment. Shillitani v United States, 384 US 364, 16 L Ed 2d 622, 86 S Ct 1531 (1966). Also, given adequate immunity, the State may plainly insist that employees either answer questions under oath about the performance of their job or suffer the loss of employment_ [414 U.S. at 84, 94 S.Ct. at 325, 38 L.Ed.2d at 285-286]

Since Garrity holds that a statement, given by a police officer about his official conduct under questioning from state authorities under threat that if he does not answer he will be fired, is inadmissible into evidence in a criminal proceeding against the officer, it follows that a statement given under the promise that it will not be used against him in a criminal proceeding is likewise inadmissible. This follows, not from the authority of the interrogator to make such promise, but the very nature of the 5th Amendment as stated in Confederation of Police v. Conlisk, 489 F.2d 891, 894, Note 4 (7th Cir.1973) cert. denied sub nom. Rockford v. Confederation of Police, 416 U.S. 956, 94 S.Ct. 1971, 40 L.Ed.2d 307 (1974):

Appellants argue that the IAD is not empowered to grant immunity from prosecution to the police officers. Such a power, however, is not necessary. In Garrity the Supreme Court indicated that the Fifth Amendment itself prohibited the use of statements or their fruits where the statements had been made under threat of dismissal from public office. Therefore, by advising the officers that their statements, when given under threat of discharge, cannot be used against them in subsequent criminal proceedings, the IAD is not “granting” immunity from prosecution; it is merely advising the officers of the constitutional limitations on any criminal prosecution should they answer.

Constitutional rights and limitations are at stake here. It is therefore pertinent that we answer the effect of any such statement given in the event of a future criminal prosecution. The literal promise given Knebel was that any statement she gave would not be used against her in a criminal prosecution. The promise went no further than this. But what about the fruits of such a statement, such as leads to other witnesses or physical evidence located thereby? Would such a promise likewise preclude the state from use of the fruits of such statement? It would. See: Gardner v. Broderick, 392 U.S. 273, 88 S.Ct. 1913, p. 1085, 20 L.Ed.2d 1082: “Answers may be compelled regardless of the privilege if there is immunity from federal and state use of the compelled testimony or its fruits in connection with a criminal prosecution....” Also, see Lefkowitz v. Turley, quoted supra; Confederation of Police v. Conlisk, quoted supra; and Sanitation Men Association, Inc. v. Commissioner of Sanitation, 426 F.2d 619, 627 cert. denied 406 U.S. 961, 92 S.Ct. 2055, 32 L.Ed.2d 349 (1972).

In order to justify questioning, the promise need not, nor does it grant the questioned officer blanket immunity from prosecution of a matter being investigated. It extends only to preventing the state’s use either of the statement or its fruits in a subsequent criminal proceeding. To hold a statement affords blanket immunity would extend the 5th Amendment further than the rights it grants. See: Uniformed Sanitation Men Association, Inc. v. Commissioner of Sanitation of New York, 426 F.2d 619 (1970).

In Garrity, the Supreme Court quoted Justice Holmes: “The petitioner ... has no constitutional right to be a policeman ... the servant cannot complain, as he takes employment on the terms which are offered him. On the same principle, the city may impose any reasonable condition upon holding offices within its control.”

Under the facts of this case, it was reasonable to require Knebel to take a polygraph test restricted to her involvement in illegal drugs under investigation. She had no constitutional right to refuse, and her refusal justified her dismissal.

It follows that the judgment of the Circuit Court should be affirmed.

AFFIRMED.

WALKER and ROY NOBLE LEE, P.JJ., and BOWLING, DAN M. LEE, PRATHER, ROBERTSON and SULLIVAN, JJ., concur.

PATTERSON, C.J., not participating.

      . Counsel for Knebel is correct that the City of Biloxi has no authority to grant immunity from state prosecution, and certainly not federal prosecution. In the above cited case, Judge Friendly of the 2d Circuit distinguishes between "use immunity" and “transactional immunity.” When investigating authorities require an officer to give a statement with a promise it will not be used against him, by virtue of the 5th Amendment neither the statement nor its fruits can be used in any subsequent state or federal prosecution. It’s use is forbidden. But, to give immunity from prosecution for the transaction under investigation, this must come by a statute granting transactional immunity under the circumstances, or from an official or government agency with such authority. As we note in this opinion, "transactional immunity” is not necessary in order to require an officer to answer questions or be dismissed. Judge Friendly’s opinion is an excellent study of the questions presented in this case. See also Kastigar v. United States, 406 U.S. 441, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972).


author: HOLMES, Judge.

text:
    James L. MITCHELL v. W. Fay MITCHELL.
    Civ. 4088.
    Court of Civil Appeals of Alabama.
    Feb. 15, 1984.
    Rehearing Denied March 21, 1984.
    Certiorari Denied July 13, 1984 Alabama Supreme Court 83-703.
    Larry R. Grissett of Prestwood, Prest-wood & Grissett, Andalusia, for appellant.
    Griffin Sikes of Sikes, Johnson, Stokes & Taylor, Andalusia, for appellee.
   HOLMES, Judge.

This is an appeal from a summary judgment granted in favor of the plaintiff and against the defendant for possession of certain real property.

The parties to this appeal were divorced in 1980. As part of the division of property the defendant (husband) gave the plaintiff (wife) a quitclaim deed to certain real property.

In August 1982, the wife filed suit against the husband seeking possession of the property plus damages for the wrongful withholding of the property by the husband. In September 1982, the husband filed a motion to dismiss for failure to state a claim, which was denied by the trial court. The wife filed a motion for summary judgment accompanied by appropriate affidavits. The husband then filed an answer denying the allegations of the wife’s complaint, i.e., a general denial. The husband did not offer anything in response to the wife’s motion for summary judgment.

In December 1982, the trial court granted the wife’s motion for summary judgment. The next day the husband filed a motion for reconsideration of the judgment accompanied by an affidavit. The trial court declined to reconsider its judgment. The case was subsequently tried before a jury on the issue of damages only. The wife received a jury verdict in her favor in the amount of $200. The husband, through able counsel, now appeals. The husband’s only contention on appeal is that the trial court erred in granting the summary judgment. We find no error requiring reversal and affirm.

As stated, the only issue on appeal is whether the trial court erred in granting summary judgment.

A party moving for summary judgment has the burden of clearly showing that there is an absence of a genuine issue as to any material fact and that the moving party must be entitled to the summary judgment as a matter of law. Butler v. Michigan Mutual Insurance Co., 402 So.2d 949 (Ala.1981).

Once a motion for summary judgment has been made and supported as required by Rule 56, Alabama Rules of Civil Procedure, the motion is to be granted unless the adverse party makes an evidentia-ry or factual showing that there is a genuine issue of fact for trial. Butler v. Michigan Mutual Insurance Co., 402 So.2d 949 (Ala.1981).

In the instant case, the wife made a proper motion for summary judgment supported by affidavits. The motion and affidavits, taken along with the pleadings, show that the husband gave a quitclaim deed conveying certain real property to the wife as a division of property in a divorce case. The wife also showed that the husband was in possession of the property and refused to relinquish possession. Clearly, under these facts, the wife was entitled to a judgment in her favor on the claim to recover possession.

Once a prima facie showing is made that there is no genuine issue of material fact, it then becomes the burden of the opposing party to produce evidence to the contrary. Holliyan v. Gayle, 404 So.2d 31 (Ala.1981). An opposing party may not rest upon the mere allegations or denials of the pleadings. Butler v. Michigan Mutual Insurance Co., 402 So.2d 949 (Ala.1981). In the instant case, as indicated, the husband did not offer anything in response to the wife’s motion for summary judgment other than a general denial of the complaint.

When no evidence is offered to contradict, or the opposing party fails to re- , spond to a motion for summary judgment, the trial court has no alternative but to consider the evidence presented by the moving party as uncontroverted; and, if warranted by such evidence, summary judgment may be entered against the non-moving party. Butler v. Michigan Mutual Insurance Co., 402 So.2d 949 (Ala.1981); Harold Brown Builders, Inc. v. Jordan Co., 401 So.2d 36 (Ala.1981). Such is the case here; hence, no error.

We particularly note that in this instance the learned trial judge in his order granting summary judgment stated that “the Defendant has filed no counter affidavit .... ”

We find the above to be dispositive even though after summary judgment was granted, the husband filed a motion to reconsider, supported by an affidavit intended to show that a genuine issue did exist, and the trial court declined to reconsider its judgment.

The trial court has great judicial discretion which it may exercise over its final judgment during the thirty-day period after entry of the judgment. Petty v. Strickland, 420 So.2d 273 (Ala.Civ.App.1982). Under the instant facts, we cannot say the trial court erred in failing to grant the husband’s motion to reconsider. To do so would have the effect of holding that, as a matter of law, the trial court was required to reconsider when, in fact, such reconsideration is discretionary. In this instance, the trial court clearly did not abuse that discretion.

When the moving party has presented evidence that no genuine issue of a material fact exists, the opposing party cannot hold back his evidence but must produce at least a scintilla of evidence that would create a triable issue of fact. Courtaulds North America, Inc. v. Lott, 403 So.2d 240 (Ala.Civ.App.), cert. denied, 403 So.2d 244 (Ala.1981).

Even though the above is dispositive of the appeal, in deference to able counsel for the husband, we make the following observation.

The husband’s contention that the property in question was subject to “conditions” or exceptions in a prior deed that prevented the husband from complying with the wife’s allegations as contained in her complaint appears to be without merit. After reading the appropriate documents which were filed with the wife’s motion for summary judgment, it appears to this court that the wife’s motion for summary judgment was, even considering the husband’s affidavit, due to be granted. Put another way, there was no genuine issue of a material fact.

In view of the above, this case is due to be and is affirmed.

AFFIRMED.

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


author: BRADLEY, Judge.

text:
    McKinney Petroleum EQUIPMENT, INC. v. Harold B. CONNELL, Jr.
    Civ. 3956.
    Court of Civil Appeals of Alabama.
    March 21, 1984.
    Rehearing Denied May 2, 1984.
    Certiorari Denied July 13, 1984 Alabama Supreme Court 83-855.

      Michael Gillion of Brown, Hudgens, Richardson, Whitfield & Gillion, Mobile, for appellant.
    Peter F. Burns of Morgan & Burns, Mobile, for appellee.
   BRADLEY, Judge.

This is a workmen’s compensation case.

McKinney Petroleum Equipment, Inc. (appellant) is a corporation engaged in the business of selling products to major oil companies and to industrial plants which use petroleum-based products. Harold B. Connell, Jr. (appellee) was employed as vice-president of the corporation and as a salesman, receiving compensation in the form of commissions. His duties involved driving a van and making calls on customers in a three state area. On June 11,1982 Mr. Connell was conducting his usual sales route and had stopped to see a customer. He stated that he was moving a spare tire in the back of the truck in order to place some merchandise in the truck when he felt a sharp pain in his lower back. Mr. Con-nell stated that he continued his sales route to Milton, Florida, and from there back to Mobile, Alabama.

Mr. Connell saw Dr. Dyas on June 11, 1982 for pain on the right side of the back and right leg, and then was examined by Dr. Park, an associate of Dr. Dyas, on June 29, 1982. Dr. Park determined that Mr. Connell had a narrowing of the disc space at “L4,5 and L5,S1.” Dr. Park concluded that Mr. Connell had a ten percent disability to the back and recommended that Mr. Connell do no bending, climbing, or lifting of over twenty-five pounds.

Mr. Connell had back problems in 1981 due mainly to pain on the left side of the back and in the left leg. The causation was attributed to normal wear and tear. Full recovery had been made from this episode of back problems. At the time of the June 11, 1982 injury, Mr. Connell was working full time and was engaging in several sports. He was having no problems with his back.

Mr. Connell ultimately returned to work as an inside salesman for McKinney Petroleum Equipment, Inc. at a salary of $25,000 a year.

Mr. Connell filed a complaint in the Circuit Court of Mobile County, Alabama, on October 14, 1982, seeking compensation benefits from McKinney Petroleum Equipment, Inc.

McKinney Petroleum Equipment, Inc. responded to the complaint with an answer denying the allegations of the complaint.

Trial was completed on April 26, 1983 and the court rendered a decision on May 31, 1983. The court determined that claimant had a reduced earning capacity of thirty-three percent and awarded benefits commensurate with such finding. In making such award, the trial court said:

“This Court finds that the difference between the plaintiff’s [Mr. Connell’s] average weekly wage before and after the accident and the permanent partial disability rating ascertained by the physician are indicative of his lost earning capacity.”

The evidence shows that claimant’s average weekly earnings were $681.59 before the accident and $448.75 after the accident. The evidence also shows that claimant suffered a ten percent permanent partial disability to his body as a result of the injury to his back.

The employer, McKinney Petroleum Equipment, Inc., has appealed to this court from the trial court’s judgment awarding claimant workmen’s compensation benefits.

Employer’s first contention is that the trial court’s award of benefits is erroneous because it considered the wrong amount of postinjury earnings to compute the award of benefits. Employer contends that claimant’s postinjury earnings are $480.80 a week. This figure is ascertained by dividing $25,000 (the yearly salary of claimant after his injury) by fifty-two weeks. Employer says that the amount of $448.75 used by the trial court as the employee’s weekly earnings after injury does not appear in the record. We disagree.

It is true that employer had agreed to pay claimant $25,000 a year after his injury. On a weekly basis this would mean that claimant should receive $480.80 per week. However, the record shows that claimant actually earned $13,452.40 from September 1, 1982, the day he returned to work, until the date of trial in April 1983. This amount of actual earnings divided by thirty weeks, which was the time worked as an inside salesman, amounts to $448.75 per week. This is the figure used by the trial court as the after-injury earnings to compute the compensation due claimant.

Section 25-5-57(a)(3)(g), Code 1975, provides, in part, as follows:

“In all other cases of permanent partial disability not above enumerated, the compensation shall be 66⅜ percent of the difference between the average weekly earnings of the workman at the time of the injury and the average weekly earnings he is able to earn in his partially disabled condition_” (Emphasis added.)

Further, Alabama courts have noted that a presumption of the degree of lost earning capacity is raised by a comparison of before- and after-earnings of the employee. Goodyear Tire & Rubber Co. v. Downey, 266 Ala. 344, 96 So.2d 278 (1957). The trial court computed employee’s loss of earning capacity on the basis of his actual earnings, and not on the basis of what he was supposed to receive. We find no error here.

Employer next says that the trial court erred in not considering claimant’s preexisting physical condition as a factor in assessing compensation benefits. In support of its contention, employer relies on section 25-5-58, Code 1975, which provides:

“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.”

We examined this code section in Thompson & Co., Contractors v. Cole, 391 So.2d 1042 (Ala.Civ.App.1980), and said:

“The key words in these two Code sections are ‘disability’ and ‘infirmity.’ These terms refer to a condition which affects the ability to work as a normal man at the time of and prior to the accident.” (Citations omitted.)

We consider our observations regarding the meaning of section 25-5-58 to be equally applicable to the facts of the present case. The evidence in the case at bar shows that claimant had the ability and was working as a normal man at the time of and prior to his on-the-job accident. Consequently, the trial court was not required to consider claimant’s preexisting condition as a factor in arriving at the percentage of ability to earn in his disabled condition.

Finally, employer says that the trial court erred in not taking into consideration the economic conditions then existing in its award of benefits to claimant. Employer submits that even if claimant had not been injured he would have suffered a reduction in earnings due to the depressed economic condition of the petroleum industry.

Although Alabama courts have not addressed this specific issue, other jurisdictions have considered it. McKinney Petroleum Equipment argues that the Maine Supreme Court has stated that business conditions must be considered in determining the loss or reduction in wages that an employee is able to earn after an accident. Beaulieu’s Case, 132 Me. 410, 171 A. 696 (1934). More recently, however, the Court of Appeals of Arizona held that a reduction in earnings occasioned by business conditions cannot be considered in fixing the compensation of the injured employee unless this reduction is directly due to the injury sustained. University Mechanical Contractors v. Industrial Commission, 135 Ariz. 365, 661 P.2d 215 (Ariz.App.1983).

Lawrence McKinney, executive vice-president of employer, testified that for about eighteen months prior to the trial sales were down due to the general economic conditions in the industry. Mr. McKinney also testified that Mr. Byrd, the person who replaced claimant as an outside salesman, had to be put on salary because he was unable to make sufficient sales.

Mr. McKinney testified, however, that claimant was a more experienced and effective salesman than Mr. Byrd and that the contacts claimant had accumulated over the years would enable him to be a better salesman.

The evidence also shows that claimant worked as a salesman for eight months of the eighteen months that employer had suffered depressed sales, and had earned substantial commissions.

Although there is evidence, some of which is recited above, which suggests that employer’s sales were depressed due to general business conditions, there is also evidence that claimant was a very good salesman and that his sales during a portion of the depressed economic period were very substantial. Based on the evidence, the trial court could have concluded that claimant’s sales would not necessarily have been reduced by deteriorating economic conditions.

In further support of the trial court’s judgment, there is no evidence that the decline in business was directly related to claimant’s injury as required by University Mechanical Contractors, supra. Consequently, we cannot say that the trial court did not take into consideration the evidence concerning the economic condition of the industry and whether claimant’s earnings would have been affected had he continued to be an outside salesman.

The judgment of the trial court is affirmed.

AFFIRMED.

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


author: PER CURIAM.

text:
    Thomas James PROCTOR v. Elizabeth C. PROCTOR.
    Civ. 3991.
    Court of Civil Appeals of Alabama.
    March 28, 1984.
    Rehearing Denied April 25, 1984.
    Certiorari Denied July 13, 1984 Alabama Supreme Court 83-811.

      Thomas James Proctor, pro se.
    John R. Christian of Wheeler, Christian & Roberts, Birmingham, for appellee.
   PER CURIAM.

This is a divorce case.

The trial court, after an ore tenus hearing, divorced the parties and awarded “the household goods, furniture and furnishings and other personal property in her possession” to the wife.

The husband appeals and we affirm.

The husband’s dispositive issues on appeal relate to the award of the personal property to the wife and are based on certain factual contentions.

It is clear to this court, as indicated by the trial court’s order and as mentioned in the husband’s brief, that prior to entry of the order appealed from testimony was presented to the trial court. There was no transcription of this testimony and/or such testimony is not contained in the record before this court. Neither is there a record before this court pursuant to Rule 10(d), Alabama Rules of Appellate Procedure.

In view of the above, we have no alternative but to affirm the trial court’s action. See Davenport v. Davenport, 356 So.2d 205 (Ala.Civ.App.1978); Ala.Digest, Divorce, Key No. 312.5.

This case is due to be affirmed.

All the Judges concur.


text:
    RAPACO, INC., a Corporation and R.E. Parrish v. Richard AGEE, Jr. and Cynthia J. Agee.
    Civ. 4233.
    Court of Civil Appeals of Alabama.
    April 4, 1984.
    Rehearing Denied May 2, 1984.
    Certiorari Denied July 13, 1984 Alabama Supreme Court 83-867.

      Phil Joiner, Birmingham, for appellants.
    Thomas L. Foster, Birmingham, for ap-pellees.
   EDWARD N. SCRUGGS, Retired Circuit Judge.

This is a breach of contract case.

The plaintiffs, husband and wife, being in the market for a home, viewed a new house that had been vandalized.

They contacted the defendants and the upshot was that repairs and renovations were to be made to the house and a written contract was entered into on October 15, 1980, whereby the plaintiffs agreed to purchase the real estate for $44,500. The only contract provision as to the renovations was: “Renovation of subject property shall begin after total of $4,500 earnest money is on deposit with the Seller in the form of cash.” The plaintiffs paid $2,500 upon the earnest money and were to pay the remaining $2,000 on or before November 21, 1980.

Among other theories, the plaintiffs sued the defendants for a breach of contract. After an ore tenus non-jury trial, a final judgment was entered which stated in presently pertinent part that “The subject real property was in a state of disrepair at the time of the execution of the contract and Plaintiffs made a reasonable effort to decide the details of the renovation of the subject property with defendants. Defendants made no effort to ascertain and decide the items necessary to the renovation of the property.” Judgment was rendered in favor of the plaintiffs and against the defendants in the amount of $2,500. The defendants appealed.

In viewing the conflicting evidence in accordance with the attendant presumptions, only that evidence which generally supports the findings and holdings of the trial court is largely summarized herein.

The plaintiffs’ only contact with either of the defendants was with the defendant Parrish, the president of the corporate defendant. They had only three conversations with Parrish — first, by telephone when they initially inquired about the vandalized house; second, in person when they signed the sales contract; and lastly, in person when the plaintiffs gave to him the $2,500 which they paid as earnest' money. They agreed with him to later agree upon the carpeting, painting, appliances, and the repairs which were to be performed and also as to when the renovation of the house would commence after they paid a total of $4,500 as earnest money. However, Parrish would not talk to them again. Between October 15, when the contract was signed, and November 21, when the balance of $2,000 was due, they called Parrish’s office and home about twenty times. They had the $2,000 on hand. From the date of the contract until this case was filed on March 3, 1981, the plaintiffs unsuccessfully attempted on approximately 150 different occasions to contact Parrish either by telephone or by visits to his office or home. Not once did Parrish return any of their calls or contacts or see them when they went to his office or home. Upon advice of counsel, they did not pay the remaining $2,000 of the earnest money because it was so difficult to contact and communicate with Parrish. The renovation of the house was never started by the defendants.

The evidence conflicted as to much of the testimony as above summarized.

Regarding the non-payment of the $2,000, the plaintiffs certainly acted reasonably and prudently in not paying it because of the lack of cooperation by the defendants. When it was due, the money was in their bank account. They had previously attempted about twenty times to contact Parrish but to no avail. The law can properly excuse a promisor from performing whenever justice requires it if the failure of performance was caused by the fault, actions, or inactions of the other party.

The written contract of the parties was ambiguous regarding the renovation of the property. It was entirely devoid as to what was to be done, when it was to be performed, what materials would be used, who would select and provide the materials or even who was to perform the work. The entire provisions of the contract as to the renovation work were contained in the one sentence that work would begin when the full $4,500 was in the seller’s hand in cash. After the written contract was entered into, the parties were to further agree as to a number of matters. The renovation portion of the contract was an important and material part of the agreement and, being ambiguous, its true meaning was a question of fact to be determined by the trial court in this non-jury trial. Mass Appraisal Services, Inc. v. Carmichael, 404 So.2d 666, 673 (Ala.1981). From the recitals in the judgment, it is clear that the trial court accepted the version of the plaintiffs as to the intent of the parties when the renovation sentence was placed in the written contract. It is also evident that the trial court adopted the plaintiffs’ contention as to what the parties had agreed to regarding the renovation and repair of the house by the defendants.

The parties had much unsettled business to accomplish pertaining to the renovation of the property. In that regard, there was an implied promise on behalf of all parties to cooperate with each other. The total, apparently calloused and multiple failures of cooperation by Parrish to the extent as was revealed by the evidence constituted a breach of contract. “There is implied in every contract a good faith effort to accomplish the result intended by the parties, Fleming & Lily Flagg Builders Supply Co. v. Kirkpatrick, 371 So.2d 16 (Ala.1979)_” Shur-Gain Feed Division v. Huntsville Production Credit Association, 372 So.2d 1317, 1321 (Ala.Civ.App.1979). The trial court expressly found that the defendants made no effort to comply in that respect.

The ore tenus rule applies. The evidence conflicted. The findings of the trial court after an evidentiary non-jury trial are presumed to be correct and will not be disturbed upon appeal if competent evidence supports the judgment, unless it is palpably wrong. Wiggins v. Brown, 391 So.2d 128 (Ala.Civ.App.1980); Nash v. Vann, 390 So.2d 301 (Ala.Civ.App.1980). Here the evidence fully supports the holding of the trial court as to the lack of cooperation by the defendants and the judgment clearly was not palpably wrong in that respect. In effect, the trial court merely awarded restitution to the aggrieved parties and ordered the return to them of the $2,500 which had been paid by them. Justice was well served by the judgment.

In the final judgment, the trial court recited another theory, ground, or basis for the rendition of the judgment. Argument is made by the defendants as to the invalidity of the judgment on that account. However, it is not necessary that we determine whether that particular stated ground for the holding of the trial court was wrong, for the judgment was correct under the evidence for the other reasons previously discussed herein. Gamble v. Gamble, 363 So.2d 790 (Ala.Civ.App.1978).

We pretermit a decision upon any issue which was not supported by the citation of authority in brief. Shory v. Peavy, 431 So.2d 1319 (Ala.Civ.App.1983).

The judgment of the trial court is affirmed.

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.

AFFIRMED.

All the Judges concur.


text:
    Lula WILLIAMS v. STATE of Alabama, ex rel. MEDICAL LICENSURE COMMISSION.
    Civ. 3996.
    Court of Civil Appeals of Alabama.
    April 11, 1984.
    Rehearing Denied May 16, 1984.
    Certiorari Denied July 13, 1984 Alabama Supreme Court 83-961.

      William J. Donald and William J. Donald, III of Zeanah, Donald & Hust, Tuscaloosa, for appellant.
    Mark C. McDonald, Montgomery, for Medical Licensure Com’n.
   BRADLEY, Judge.

Lula Williams (appellant) has studied or practiced naturopathy since the late 1950’s. She holds degrees in naturopathy or massage from the following schools: Pacific College of Naturopathic Physicians, Missouri College of Naturopathic Physicians, The Central Ohio School of Massage, and the Australian Naturopathic School.

To obtain these degrees she studied and was tested in subjects such as anatomy, foods, food therapy, nutrition, massage, and colon therapy. Since 1971 Lula Williams has been engaged in the practice of naturopathy in the state of Alabama. She obtained “occupational licenses” from the courthouses in Hale and Tuscaloosa counties. There is no state license for the practice of naturopathy in Alabama.

Mrs. Williams began practicing in Alabama in Hale County. She moved her office to Tuscaloosa in 1979 or 1980. Mrs. Williams had been practicing naturopathy in Tuscaloosa for about two years when Bobbie Jean Wilson came to her office. Mrs. Wilson was a resident of Northport in Tuscaloosa County and had been diagnosed as having cancer in her neck or throat in 1979. Mrs. Wilson had received radiation or cobalt treatments for this disease.

In November of 1981 Mrs. Wilson was suffering pain in her right side. She was admitted to a hospital in Tuscaloosa for the problem. The doctors who saw Mrs. Wilson at the hospital were unable to identify the problem and recommended that she undergo exploratory surgery. Against her medical doctors’ advice, Mrs. Wilson and her husband decided she would not have the surgery, and she checked out of the hospital on December 7, 1981. Later that same day Mrs. Wilson went to Lula Williams’s office for a first appointment.

Lula Williams had never met Bobbie Jean Wilson before this appointment on December 7, 1981. Mrs. Wilson’s mother requested the appointment because she had heard Mrs. Williams speak at the church about health, good diet, and nutrition.

During their initial visit on December 7, 1981, Lula Williams took a history from Mrs. Wilson, weighed her, checked her urine and saliva for levels of salt, sugar, acidity, and alkalinity, and checked her blood pressure. Mrs. Williams told Mrs. Wilson’s mother that medical doctors believed in surgery but that she could help Mrs. Wilson without surgery. Mrs. Williams recommended a diet to Mrs. Wilson of various foods, vitamins, and liquids, all of which could be bought at any grocery store or health food store. For Mrs. Wilson’s pain and discomfort in the abdominal area, Mrs. Williams said it was gas and administered colon therapy to her. She said the enemas would wash the poisons out of Mrs. Wilson’s body. In effect, Mrs. Williams undertook to put Mrs. Wilson in better health by recommending a good diet and using colon therapy.

A sister of Mrs. Wilson testified that she was told by Mrs. Williams that the purpose of the enemas was to remove the toxicity from a person’s body. Mrs. Williams said that a person dying from cancer is really being killed by toxicity. Mrs. Williams also gave this sister a book to read. The book was entitled “How I Conquered Cancer Naturally.”

The husband of Mrs. Wilson stated that Mrs. Williams told him his wife had cancer in its last stages. Mrs. Williams then sold him a colonomy board for Mrs. Wilson’s use at home.

In August 1982 Lula Williams concluded that her nutritional program was not helping Mrs. Wilson. Mrs. Williams recommended that Mrs. Wilson see a Dr. Peterson in Huntsville, who was a “D.O.” (doctor of osteopathy). Dr. Peterson said Mrs. Wilson had cancer of the liver and prescribed certain things for her to take. Mrs. Williams testified that even after Dr. Peterson’s diagnosis she never tried to treat Mrs. Wilson for cancer. However, the prescription for ground up apricot pits mixed with mashed bananas to be taken by Mrs. Wilson was in Mrs. Williams’s handwriting.

This recipe contained a large dose of what is commonly called laetrile. Dr. John Fisher, the pharmacologist for Druid City Hospital, stated that twenty to forty apricot pits have been known to cause death in a female adult due to cyanide intoxication. Further, the record shows that in the opinion of Dr. Joseph Prchal of the University of Alabama at Birmingham Medical Center, Mrs. Wilson was suffering from cancer of the liver during 1981 when she was hospitalized and first began seeing Mrs. Williams.

Mrs. Wilson died on February 3, 1983 from “apparent heart failure.”

In December 1982 the State Medical Li-censure Commission filed a petition in the Tuscaloosa Circuit Court seeking to enjoin Mrs. Williams from practicing medicine without a license. After a trial the court found that Mrs. Williams was practicing medicine without being licensed to do so as provided in section 34-24-310, Code 1975. The trial court then enjoined Mrs. Williams from practicing medicine without a license as required by statute; from operating the Health Educational Clinic as a medical office; and from using the designation “Dr.”

Mrs. Williams appealed to the supreme court, but that court transferred the case to this court for decision.

The dispositive issue here is whether Mrs. Williams was practicing medicine out of the Health Educational Clinic, contrary to the laws of Alabama.

The practice of medicine or osteopathy is defined in section 34-24-50, Code 1975. This section provides:

“The ‘practice of medicine or osteopathy’ means:
“(1) To diagnose, treat, correct, advise or prescribe for any human disease, ailment, injury, infirmity, deformity, pain or other condition, physical or mental, real or imaginary, by any means or instrumentality;
“(2) To maintain an office or place of business for the purpose of doing acts described in subdivision (1), whether for compensation or not;
“(3) To use, in the conduct of any occupation or profession pertaining to the diagnosis or treatment of human disease or conditions, the designation ‘doctor,’ ‘doctor of medicine,’ ‘doctor of osteopathy,’ ‘physician,’ ‘surgeon,’ ‘physician and surgeon,’ ‘Dr.,’ ‘M.D.’ or any combination thereof unless such a designation additionally contains the description of another branch of the healing arts for which a person has a license.”

Section 34-24-51, Code 1975, also provides that no one may practice medicine without first receiving a license to do so from the state licensing board for the healing arts.

It is clear from the evidence that Mrs. Williams had not qualified with the State Licensure Commission to receive a license as a naturopath. As a matter of fact, Mrs. Williams could not be so licensed because the legislature has not made the practice of naturopathy a branch of the healing arts in Alabama.

Did the activities of Mrs. Williams in and about the practice of naturopathy in Tuscaloosa amount to the practice of medicine in Alabama? The trial court found that Mrs. Williams was practicing medicine in Alabama without a proper license. We believe the evidence supports such a finding.

The evidence shows that Mrs. Wilson was suffering from pain in the abdominal region of her body and, after certain tests were administered to her, Mrs. Williams undertook to relieve Mrs. Wilson of her pain and discomfort by prescribing certain foods and vitamins to be consumed and by removing toxic poisons, which cause cancer, from Mrs. Wilson’s body by colonic irrigations, i.e. enemas. Such practice amounts to the practice of medicine because Mrs. Williams undertook to treat Mrs. Wilson’s pain “by any means or instrumentality.”

The evidence further shows that Mrs. Williams operated an office, i.e. Health Educational Clinic, for the purpose of doing the acts above prescribed, which is a violation of section 34-24-50, Code 1975. Moreover, Mrs. Williams used the word “doctor” or “Dr.” in referring to herself and in the advertisements relating to the clinic, which also is a violation of section 34-24-50, Code 1975.

The evidence amply supports the trial court’s findings.

Mrs. Williams’s final contention is that the trial court violated her constitutional rights, especially the fourteenth amendment to the United States Constitution, by finding that her activities amounted to a violation of section 34-24-50, Code 1975.

As mentioned above, the legislature has not established licensing requirements or standards for the practice of naturopathy. Accordingly, the practice of naturopathy should properly be reserved to those practitioners of the healing arts who have been licensed by the appropriate licensing authority. See Hahn v. State, 78 Wyo. 258, 322 P.2d 896 (1958).

Does the failure on the part of the legislature to authorize the licensing of naturo-paths as a branch of the healing arts amount to a violation of Mrs. Williams’s constitutional rights? We believe not.

The United States Court of Appeals for the Fourth Circuit in Idaho Association of Naturopathic Physicians, Inc. v. United States Food & Drug Administration, 582 F.2d 849 (4th Cir.1978), said:

“We conclude that the naturopaths’ various constitutional claims depend on a single underlying contention: that a state must recognize naturopathy as a discipline distinct from the orthodox practice of medicine whose practitioners are entitled to licensing requirements different from those imposed on other physicians. If the naturopaths are correct in this assertion, their other contentions may well have merit, but if it fails, all of their claims must fall with it. In light of the decisions of the Supreme Court that we have reviewed, we find that the na-turopaths’ basic claim has been firmly, repeatedly, and authoritatively rejected.”

The judgment of the trial court is affirmed.

AFFIRMED.

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


text:
    Robert Larry DAWSON v. Wanda Kay Tyner DAWSON.
    Civ. 4125.
    Court of Civil Appeals of Alabama.
    May 23, 1984.
    Rehearing Denied June 20, 1984.

      Claude D. Boone, Mobile, for appellant.
    No brief for appellee.
   EDWARD N. SCRUGGS, Retired Circuit Judge.

This case involves contempt proceedings for Mr. Dawson’s failure to pay child support. Though the parties are no longer married to each other, they will still be referred to as the husband and the wife.

The parties reached a written agreement in their divorce case and the June 29, 1983 final divorce judgment of the trial court expressly contained those settlement provisions in detail. In pertinent parts, the husband was ordered to pay, effective May 27, 1983, $400 each month for the support of two of their minor children. He was further required to maintain major medical and dental insurance upon three children and to pay one-half of the cost of their school books and tuition. In the divorce property settlement, the husband received a vendor’s lien, subject to its partial assignment for the payment of a debt, ninety percent of his claim for employment injuries, a lot in Mobile, the savings accounts, checking accounts and individual retirement accounts which were then in his name, tools, a Tiger’s Eye ring, and corporate stock.

On July 15, 1983, the wife filed a motion that the husband be adjudged to be in contempt of court for his failure to pay the monthly child support, for his nonpayment of one-half of the tuition of one child, and for other matters which are not now relevant.

After both parties testified before the circuit court, that court on October 25, 1983, adjudged the husband to be in contempt of court and ordered him committed to jail but allowed him to purge himself of contempt by paying $1,000 to the wife within thirty days. The wife was granted a judgment against the husband for $800 for the total amount of child support arrearage due as of October 25, 1983, and for the additional amount of $250 for the husband’s portion of one child’s tuition. The husband appealed. We affirm.

The lack of ability to pay child support is a complete defense to a contempt proceeding based upon a failure to pay in compliance with previous child support judgments. Williams v. Stumpe, 439 So.2d 1297 (Ala.Civ.App.1983). Indeed, when the accused proves that he is not financially able to pay child support, the burden of proof then shifts to the complainant to prove beyond a reasonable doubt that the accused is financially able to comply with the judgment of support. Ex parte Griggs, 435 So.2d 103 (Ala.Civ.App.1983); Zeigler v. Butler, 410 So.2d 93 (Ala.Civ.App.1982).

The evidence established that the husband was delinquent for two months of child support totaling $800 and that he had not paid his one-half of the $500 tuition for a daughter. He testified that he had been unemployed as a construction electrician for all but three weeks of the previous five months and that he does not have any money or savings with which to presently pay his delinquent child support. The wife testified that he was unemployed because he voluntarily quit his job before the rendition of the divorce judgment.

Just being unemployed and having no cash is inadequate proof of inability to pay. Only four months previously, the husband had been awarded considerable assets by the divorce judgment which were unaccounted for at the contempt trial. For aught that appears from the evidence, he still owns adequate assets through which his delinquency may be made current. Accordingly, he failed to meet his initial burden that he did not have the ability to pay. We find no error in the action of the trial court in placing the husband in contempt of court and in providing for the conditional punishment imposed upon him.

Over the husband’s objection that the evidence was outside of the issues as presented by the pleadings, the wife was permitted to testify that the husband did not maintain the required major medical insurance policy upon the children, that she continued in effect the family policy which the husband had procured and which provided family medical coverage at the time of their divorce. She has paid the premium of $276 due every two months since the divorce. That policy covers not only the three children but also the wife. However, if the wife were eliminated as an insured, the premium would still remain the same for coverage of only the children. The husband admitted that he did not provide the major medical insurance, contending that he was not able to pay the premium for it.

The trial court ordered that the husband reimburse the wife for all premiums which the wife paid on the health insurance which she carries on the minor children and which should have been maintained by the husband.

If an objection is made to the introduction of evidence on the ground that it is not within the pleading issues, the objector must show actual prejudice in maintaining his action or defense on the merits by the admission of the evidence. The wife could have filed an amendment to her pleading as to the insurance but she failed to do so, and we are not convinced of any prejudice to the husband on that account. Hawk v. Bavarian Motor Works, 342 So.2d 355 (Ala.1977); Rule 15(b), A.R.Civ.P. His only objection was that this insurance problem was outside of the issues as made by the pleadings and he made no contention, or showing, at the time of the introduction of the evidence that he was prejudiced in the slightest by trying that issue at that time. Now, the husband argues for the first time that he was deprived of an opportunity to present evidence as to how much of the insurance premiums which were paid by the wife might, in fact, have been for her coverage under the policy. No attempt was made to offer any such evidence at the trial. No request was made to the trial court to give the husband an opportunity to attempt to obtain and introduce such testimony. Neither was the trial court asked to continue the case so that he might counter the wife’s evidence in that regard.

Since we find no prejudicial effect to the husband by the trial court’s overruling of his objections, there was no error in so ruling.

The judgment of the trial court is affirmed.

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

AFFIRMED.

All the Judges concur.


text:
    Gary RODGERS v. Shauna HILL (Carlone).
    Civ. 4173.
    Court of Civil Appeals of Alabama.
    June 20, 1984.

      Joe A. Macon, Jr., Wetumpka, for appellant.
    J. Robert Faulk and Theron O. McDo- _ well, Jr., Prattville, for appellee.
   EDWARD N. SCRUGGS, Retired Circuit Judge.

This is a child custody modification case.

The mother had been awarded the son’s custody through prior proceedings, and the father subsequently filed the present litigation seeking custody. The feelings, attitudes and relations of the parents of the five-year-old child are strained, accusative and acrimonious. It would benefit no one, least of all the son, if we detailed all of their soiled linens that were laundered at the trial. We assure the parties and their capable and experienced counsel that we have read, studied and reviewed the briefs and the entire 303-page court reporter’s transcript of the testimony which was presented on four different dates over a fourteen-month period. When the case was submitted for a final judgment, the trial court observed from the bench in open court that, after considering all things, it was to the best interest of the child that he be in his mother’s custody. A final judgment was accordingly entered and the father appealed.

The evidence highly conflicted. The father contended that the mother left the son with him and that she abandoned the child. On the other hand, the mother stated that the father beat her, took the child from her and that she had to leave because she had no other viable alternative at the time. She further testified to facts justifying and excusing her delay in seeking to regain custody of her son.

The evidence was heard at length before the trial court. Accordingly, the factual holding of that court in favor of the mother is presumed to be correct, and we are not authorized to alter it unless it was so unsupported by the evidence as to be palpably wrong. Johnston v. Johnston, 429 So.2d 1075 (Ala.Civ.App.1983). A sharply contested question of fact was presented as to what was to the best interest of the child regarding his custody and, when a trial court resolves such a conflict in the facts, this court may not reweigh the evidence and substitute our judgment for that of the trial court. Isbell v. McAbee, 448 So.2d 372 (Ala.Civ.App.1984).

“Of supreme concern in all child custody cases is the best interest of the child. Ala.Dig., Divorce, 298(1)(1959). This is an easy rule to state, but a difficult rule to apply. This “what is best for the child” rule prevails over presumptions and has probably caused judges more sleepless nights than any other one legal or equitable principle. It is an awesome responsibility, fraught with difficulty, to determine the best welfare of children. The trial judge observes attitudes, facial expressions, voice tones and all human traits in parties and witnesses testifying and appearing before him, weighs the evidence, wishes for the wisdom of Solomon, and hopefully reaches the correct decision in the case. This unique opportunity to observe and hear is the primary reason for the strong presumption favoring the trial court’s findings in cases of this nature. Mothershed v. Mothershed, Ala.Civ.App., 348 So.2d 501 (1977); Ala.Dig. Divorce, 312.6(5)(1959).”

Ashley v. Ashley, 383 So.2d 861, 863 (Ala.Civ.App.1980).

We determine that the custody award to the mother was upheld by the evidence and was not clearly erroneous.

While we have decided that issue upon its merits, the action of the trial court in regranting or reaffirming custody in the mother must also be upheld for an entirely different reason. The father requested that the trial court meet with the child in camera. The trial judge then stated that, if he so conversed with the child, it would be off the record. At the conclusion of the hearings when the trial court was announcing its decision in this case, that court stated that it had interviewed the child. There is no record of that interview in the lengthy record. The information given by the boy to the trial court in camera could have influenced the outcome of the case. We are required to presume that such evidence was adequate to sustain the judgment. Ruck v. Ruck, 265 Ala. 29, 89 So.2d 274 (1956); Yates v. Yates, 428 So.2d 105 (Ala.Civ.App.1983).

Earnest counsel for the father further complains that the trial court erred in four instances by sustaining the mother’s objections to questions asked of the mother by the father’s former attorney. Evidence was later introduced by other witnesses as to three of those matters. If there was error in sustaining objections to the introduction of any of that evidence, the adverse rulings were harmless and no injury resulted to the father on that account, since those three matters were established by other evidence. Robinson v. McElroy, 435 So.2d 742 (Ala.Civ.App.1983) and the authorities therein cited.

With reference to the fourth eviden-tiary issue, the mother was asked if she had ever been arrested for a particular named offense. After inquiry by the court, the father’s former counsel admitted that he had no direct testimony which he could present upon the matter, only hearsay evidence and that he could not prove it. The colloquy between the court and counsel as to that evidence problem consumed three legal pages of the transcript, and a thorough reading of the whole exchange of words and ideas is of aid in convincing us that no error was committed in sustaining the objection. Here, there was no offer of proof by the father, but, to the contrary, it was admitted that he possessed no proof upon the subject. That admission certainly justified the trial court’s ruling upon the objection. C. Gamble, McElroy's Alabama Evidence § 425.01(1) (3d ed.) at 783. Section EC 7-25 of the Alabama Code of Professional Responsibility, under certain circumstances, could bear upon this issue as was aptly pointed out by the trial court as follows:

“THE COURT: Well my point is, it is improper and unethical to ask a witness, “Have you been convicted of murder,” when you have no information that the witness has ever been convicted of murder. And then to double back and say, “You mean to tell me” — I’ve been through all of that. It’s number one a waste of time, and it’s improper.”

However, counsel for the father contends that the trial court should have overruled the objection under Ex parte Berryhill, 410 So.2d 416 (Ala.1982). The question as approved in that case was whether the appellee had ever killed anyone, and it was accordingly directed as to whether the ap-pellee himself had done that specific act. Hence, the supreme court determined that the question was relevant as an attempt to show a specific act of bad character of the appellee bearing upon his fitness to be awarded the custody of the child. Here, the question was very different, for the mother was asked if she had ever been arrested for the crime, not whether she had ever committed such a crime. The question did not focus upon whether she had committed the specific act of bad character, but the bead was drawn upon an arrest, the act of an arresting officer, and the sights were not aimed toward anything specifically done by her. There is a vast difference between “have you ever committed” and “have you ever been arrested for.” We do not comprehend that the Berryhill case encompassed the present question. The trial court did not err in sustaining the mother’s objections to it.

Having found no error regarding any argued issue, we affirm the judgment of the trial court.

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

AFFIRMED.

All the Judges concur.


author: WRIGHT, Presiding Judge.

text:
    Burke KELLY v. Betty Ann KELLY.
    Civ. 4220.
    Court of Civil Appeals of Alabama.
    June 20, 1984.
    Bob Humphries of Humphries & Davis, Montgomery, for appellant.
    J. Richard Piel of Piel & Lynn, Montgomery, for appellee.
   WRIGHT, Presiding Judge.

The parties were divorced on April 8, 1971. There were two children born of the marriage, the youngest only eight months old. There was an agreement by the parties, incorporated into the divorce decree, that custody would be in the mother, with the father contributing child support in the amount of $200 per month. The record discloses that by June 21, 1971, the father was already substantially behind in his agreed support payments. In the following years, the father was cited, and usually found in contempt, some seven times for failure to pay child support. His arrearage reached as much as $3,241. The court, time after time, allowed him to decrease the arrearage by paying thereon as little as $10 per month. The last such order was in 1976.

During all of this time the mother was working outside the home, rearing the small children, and making mortgage payments on their home. Each parent has remarried to a working spouse.

In November 1983, the mother brought a petition to increase child support because of the increased needs of her now teenage daughters. The allegations and evidence in support of her petition were that even now the father remained over $1,500 in arrears, though he and his wife had purchased a home, installed a swimming pool, bought a new $15,000 automobile, and regularly took trips to Atlantic City and Las Vegas in order to gamble. She requested $400 per month.

After a full ore tenus hearing, the court ordered: child support of $300 per month; an attorney fee to the mother’s attorney of $300; judgment for arrearage of support in the amount of $1,531, with right to reduce at the rate of $40 per month; and direction to the father and the children to seek counseling from a counselor or agency agreed upon by the attorneys to the end of improving their relationship.

From that order the father appeals, charging as to each part thereof an abuse of discretion or failure of proof.

This court perceives no benefit in further relating the pleadings and evidence. We deem it sufficient to say that we have carefully reviewed the record as to each of the issues presented on appeal, and find it sufficiently supports the exercise of the discretion of the trial court in each instance. Dismukes v. Dismukes, 376 So.2d 730 (Ala.Civ.App.1979); Smythe v. Smythe, 376 So.2d 1101 (Ala.Civ.App.1979).

The father submits that there was not sufficient proof of change of circumstances to support a modification of the original agreement and decree. His basis is that each party continues to have wages relatively the same as the other. That basis is insufficient to support his contention. The change in circumstances before the court was the increased need of the children and the decreased purchasing power of an award made thirteen years previously. These are clearly matters for consideration of the court in determining whether there has been a change of circumstances. Miller v. Miller, 437 So.2d 574 (Ala.Civ.App.1983).

We consider the argument, that the determination of the amount of arrearage is error because not supported by pleading and proof, to be without merit. The court could take notice of its own proceedings during the last thirteen years and its finding in 1976 of a then arrearage of $3,241, payable at $15 per month. Considering the record and the evidence' from the mother that there remained an unpaid amount, in absence of evidence to the contrary, the court could properly render judgment. Rule 15, A.R.Civ.P.

We conclude with the note that regardless of the evidence submitted of wages and tax returns, there was evidence of other income by the father from various sources (which we will not here recite), for the court to reasonably infer that the increase in child support could be met.

Considering all, we affirm the trial court.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


text:
    George J. CLARK v. Earline CLARK.
    Civ. 4246.
    Court of Civil Appeals of Alabama.
    June 20, 1984.
    Perry 0. Hooper of Hooper, Gallion, Gunter, Bear & Wilkerson, Montgomery, for appellant.
    John L. Capell III of Capell, Howard, Knabe & Cobbs, Montgomery, for appellee.
   HOLMES, Judge.

This is a divorce case.

After an ore terms hearing, the trial court divorced the parties, made a division of property, required the husband to pay child support, and further required the husband to pay an attorney’s fee.

The husband, through able counsel, appeals contending the trial court erred in its division of property, in the award of child support, and in the award of an attorney’s fee. We find no error requiring reversal and affirm.

Viewing the record with the attendant presumptions accorded the trial court’s decree, the following is pertinently revealed. The parties were married for approximately twelve years. Two children, ages five and four, were born of the union. The wife is a school teacher and earns approximately $16,000 per year. The husband earns approximately $14,000 from his employment with the United States Government and over $9,500 per year from a second job with the State of Alabama. Put another way, the husband’s income is over $23,500 per year.

The major asset of the parties is their home. The value of the home is $75,000. There is a mortgage on the home of approximately $25,000.

The trial court awarded custody of the children to the wife and required the husband to pay $300 per month as child support. The wife was awarded the home and the responsibility of making the mortgage payments. However, if the home is sold, the husband is to receive $8,000 from the proceeds of such sale.

The husband was also required to pay an attorney’s fee of $750.

The determination of the amount of child support is a matter within the sound discretion of the trial court. Such an award will not be reversed on appeal in the absence of a manifest abuse of discretion. See Dismukes v. Dismukes, 376 So.2d 730 (Ala.Civ.App.1979). In view of the husband’s income and the ages and needs of the children, we cannot say the trial court’s action is a manifest abuse of discretion.

The husband indicates concern that his second job, with the State of Alabama, may not continue infinitum. Suffice it to say, future child support payments may be modified upon a finding of a material change in circumstances. Gorman v. Gorman, 392 So.2d 238 (Ala.Civ.App.1980).

A division of property by the trial court is also a matter within the sound discretion of the trial court. In this instance, keeping in mind that the wife has custody of the children and the husband’s “equity” upon a sale of the house, we find no abuse of discretion in the trial court’s action awarding the wife the home. See Rayford v. Rayford, 390 So.2d 636, (Ala.Civ.App.), cert. denied, 390 So.2d 638 (Ala.1980).

As indicated, the trial court required the husband to pay $750 attorney’s fee. This area of concern by the husband also falls within the trial court’s discretion. In Smythe v. Smythe, 376 So.2d 1101 (Ala.Civ.App.1979), a distinguished trial judge, now retired, ordered an attorney’s fee of $1,000 to be paid by the husband. This court, even though the husband’s income was less than the husband’s income in the present case, affirmed that award.

In view of the facts of the instant appeal, we cannot now say the $750 attorney’s fee requires reversal.

We would be remiss in not commenting that both parties have favored this court with excellent briefs for which we are grateful.

This case is due to be affirmed.

AFFIRMED.

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


text:
    Charlie Mae ALLEN v. DIVERSIFIED PRODUCTS.
    Civ. 4358.
    Court of Civil Appeals of Alabama.
    June 20, 1984.

      David L. Hirsch, Phenix City, for appellant.
    N.T. Braswell III of Rushton, Stakely, Johnston, & Garrett, Montgomery, for ap-pellee.
   WRIGHT, Presiding Judge.

This is a workmen’s compensation case.

On January 12, 1981, Charlie Mae Allen (claimant) caught her right hand in a mechanical press on which she was working at Diversified Products (employer). Her hand remained trapped in the press for approximately twenty minutes until maintenance personnel could disassemble the machine and free her. Claimant was immediately taken to the nurses’ station where her glove was removed and her hand was examined. Although claimant disagrees, there is testimony that the hand was neither bruised, bleeding nor swollen at that time. The following day she was seen by the company physician who also detected no bruising, swelling or bleeding; indeed, no sign of injury. X-rays showed no fractures and no soft tissue injury.

Subsequent to her accident, claimant began to experience various emotional and psychological problems, ultimately resulting in complete disfunction of her right arm. As a result, she sought help from several physicians and psychologists and also underwent surgery in a vain attempt to regain use of the hand and arm. All treatment has been without improvement, with continued regression.

Medical and psychologic testimony indicates that, while there is no physiological cause for claimant’s present condition, her inability to use her arm results from a psychological condition known as conversion hysteria, which was apparently triggered by the accident in question.

On January 11, 1982, claimant brought suit in Lee County seeking workmen’s compensation benefits. Thereafter, depositions of various physicians and psychologists were taken and trial was held ore tenus on March 22, 1983. On October 11, 1983, the trial court entered its judgment, finding that:

“[A]s a result of the accident in question which occurred on or about January 13, 1981, the Plaintiff, Mrs. Charlie Mae Allen, has lost 75 percent of the use of her right hand and arm as a direct and proximate result of the accident in question. The Court finds such injuries are entirely ‘of the mind’ in other words in the form of a neurosis but are compensable in nature. Accordingly, IT IS ORDERED, ADJUDGED AND DECREED that the Plaintiff have and recover of the Defendant the sum of $124.52 per week for a period of 222 weeks times 75 percent and for such other benefits as the law requires to flow therefrom the injury which the Plaintiff suffered. In this regard it is required that such expenses have been incurred by the Plaintiff from a physician authorized by the Defendant or as otherwise set out in the Code of Alabama.”

From this judgment claimant appeals, asserting that the trial court erred in (1) finding only a seventy-five percent permanent disability to her right arm, rather than a total permanent disability, and (2) in failing to allow payment of psychiatric, psychological and psychiatric hospitalization expenses.

It is well-settled that psychological injuries may be compensable under the Alabama Workmen’s Compensation Act where an employee suffers a physical injury or trauma in the line and scope of his or her employment and develops a disabling neurosis as a proximate result thereof. Bickerstaff Clay Products Co. v. Dixon, 444 So.2d 390 (Ala.Civ.App.1983); ABEX Corp. v. Coleman, 386 So.2d 1160 (Ala.Civ.App.1980); Fruehauf Corp. v. Prater, 360 So.2d 999 (Ala.Civ.App.1978). The record clearly shows and the trial court found that claimant suffered a physical injury — no matter how slight — and that a disabling neurosis developed proximately therefrom. Therefore, there is support in the evidence for the determination that claimant is entitled to recover for her psychological injuries, Bickerstaff Clay Products Co., supra; the only question being the amount of recovery to which she is entitled.

As we stated in Bickerstaff, in determining the degree of claimant’s disability, a trial court is not bound by expert testimony indicating the degree of claimant’s bodily disability. The trial court may consider all evidence, including its own observations, and interpret it according to its own best judgment. Goodyear Tire and Rubber Co. v. Greene, 426 So.2d 851 (Ala.Civ.App.1983). The award made was according to the schedule for permanent partial loss of use of an arm provided in § 25-5-57(a)(3)(d), Code of Alabama 1975.

In workmen’s compensation cases our scope of review as to factual matters, such as the degree of disability, is strictly limited to an examination of the trial evidence to determine if any legal evidence was supportive of the trial court’s findings. If so, we must affirm the court’s judgment, for this court does not consider the weight of evidence but only its existence. Goodyear Tire & Rubber Co., supra. Upon a review of the record, we cannot say that the trial court erred in its determination of disability or computation of benefits.

We also find no error in the trial court’s failure to award claimant psychological medical expenses. In addition to evidence that at least some of said expenses were paid by another source, the record is devoid of evidence indicating either the necessity or reasonableness of claimant’s psychological care or that said care was ever authorized by employer or its workmen’s compensation carrier.

With the exception of emergency care, the employer has the first right to select the medical or surgical attendant who treats the claimant. § 25-5-77(a) Code 1975. The employer is not liable for medical, surgical, or, in this case, psychological treatment obtained by the employee without justification or notice to the employer. Condry v. Jones Farm Equipment Co., 358 So.2d 1030 (Ala.Civ.App.1978). Claimant having failed to prove notice or authorization of the treatment in question by employer, is not entitled to compensation of expenses incurred in that treatment.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


author: BARRON, Judge

text:
    Ex parte State of Alabama. In re: STATE of Alabama v. Michael Edward WATERS.
    3 Div. 761.
    Court of Criminal Appeals of Alabama.
    March 9, 1983.
    Rehearing Denied March 28, 1983.
    Charles A. Graddick, Atty. Gen., and Joseph G.L. Marston, III., Asst. Atty. Gen., for petitioner.
    George W. Cameron, and Billy Foxworth, Montgomery, for respondent.
    DeCARLO, P.J., and TYSON, HARRIS and BOWEN, JJ., concur.
   BARRON, Judge

(dissenting).

On the basis of the record before us, to which we are restricted in our resolution of this issue, I find no evidence that the trial judge arrogated to himself any power that is solely within the province of the jury, or that any unusual circumstances exist amounting to a judicial usurpation of powers by the trial judge. A review of the correctness of the trial judge’s decision to grant a motion for a new trial is not within the purview of mandamus. In my view, intervention by mandamus is not merited. Therefore, I respectfully dissent.

Judgment reversed, Ala., 453 So.2d 1066, on remand, Ala.Cr.App., 453 So.2d 1067.


author: EMBRY, Justice. MADDOX, Justice

text:
    Ex parte Perry O. HOOPER. (Re Ex parte State of Alabama. (In re STATE of Alabama v. Michael Edward WATERS)).
    82-675.
    Supreme Court of Alabama.
    May 11, 1984.
    George W. Cameron, Montgomery, for petitioner.

      Charles A. Graddick, Atty. Gen. and Joseph G.L. Marston, III, Asst. Atty. Gen., and James H. Evans, Dist. Atty., Frank H. Hawthorne, Jr., Deputy Dist. Atty., and H. Lewis Gillis, Asst. Dist. Atty., for respondent.
   EMBRY, Justice.

Upon consideration of the petition, brief of petitioner, and the State’s brief in opposition thereto, the judgment of the Court of Criminal Appeals, 453 So.2d 1066, granting the State of Alabama’s petition for mandamus is reversed and this cause is remanded for an order consistent herewith.

Mandamus will not lie to compel the trial court’s exercise of discretion in a particular manner, nor to review the lower court’s proceedings for error, nor as a substitute for appeal. State v. Cannon, 369 So.2d 32 (Ala.1978).

REVERSED AND REMANDED.

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

MADDOX, J., concurs specially.

MADDOX, Justice

(concurring specially).

In view of the fact that the respondent, Perry 0. Hooper, trial judge, filed a motion under Rule 39(k), Ala.R.App.P., in which he stated that “the new trial was granted on grounds other than insufficiency of the evidence,” I agree that the Court of Criminal Appeals erred in granting the state’s petition for mandamus. The circumstances of this case are unlike those presented in Ex parte Nice, 407 So.2d 874 (Ala.1981).


author: BOWEN, Presiding Judge.

text:
    Ex parte State of Alabama. In re STATE of Alabama v. Michael Edward WATERS.
    3 Div. 761.
    Court of Criminal Appeals of Alabama.
    June 26, 1984.
   PETITION FOR A WRIT OF MANDAMUS

BOWEN, Presiding Judge.

The petition for writ of mandamus seeking to require a Montgomery Circuit Court judge to vacate and hold for naught his order granting a new trial is hereby denied on authority of Ex parte Hooper, 453 So.2d 1066 (Ala.1984), holding that mandamus will not lie to compel the trial court’s exercise of discretion in a particular manner.

PETITION DENIED.

All Judges concur.


author: HARRIS, Judge. SAM TAYLOR, Judge

text:
    Alice Freeman HORNE v. STATE.
    6 Div. 917.
    Court of Criminal Appeals of Alabama.
    Nov. 1, 1983.
    Rehearing Denied Nov. 29, 1983.
    S. Kent Stewart, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen., and James F. Hampton and J. Anthony McLain, Sp. Asst. Attys. Gen., for appellee.
   HARRIS, Judge.

This is a welfare fraud case in which Alice Freeman Horne was convicted of obtaining money under false pretenses and sentenced to three years’ imprisonment with no probation.

The appellant argues that her prosecution for welfare fraud did not comply with the applicable statute of limitations. Two cases are controlling on this issue. In Smith v. State, 409 So.2d 927 (Ala.Cr.App.1981), cert. denied, 409 So.2d 930 (Ala.1982), we held that the state could elect to prosecute a welfare fraud, of the type presented herein, as an offense of obtaining personal property or money by false pretenses. In Griffin v. State, 352 So.2d 847 (Ala.1977), affirming, 352 So.2d 843 (Ala.Cr.App.), the Alabama Supreme Court explained that the three-year statute of limitations applies to felony false pretense offenses, and that an offense consisting of repeated false representations, and the repeated acquisition of money due to such misrepresentations, was one of a continuing nature, not completed until the last such misrepresentation or money acquisition was made.

The state presented evidence that the appellant repeated certain misrepresentations as late as October, 1979, and received welfare benefits after that date. Under such circumstances, appellant’s indictment for the instant offense on February 11, 1982, was in compliance with the applicable three-year statute of limitations. See, Griffin v. State, supra.

Omitting the formal parts, the indictment stated as follows:

“Alice Freeman Horne, whose name is to the Grand Jury otherwise unknown than as stated, did falsely pretend to the Alabama State Department of Pensions and Security, or its agents or employees, with intent to defraud, that her household income was less than it actually was, or that her household composition was greater than it actually was, and by means of such false pretense obtain from the Alabama State Department of Pensions and Security, or the State of Alabama, property, to-wit: food assistance in the form of Food Stamps, from January, 1977, through December, 1979, the property of the Alabama State Department of Pensions and Security, or the State of Alabama, or the United States of America, all or a portion of which property, the value of, to wit: four-thousand seventy dollars ($4070.00) dollars, she was not entitled to receive, against the peace and dignity of the State of Alabama.”

The appellant contends that this indictment was deficient in that it failed to allege “sufficient facts as to the alleged offenses charged so that the defendant was properly informed of that which she was called upon to defend.” We agree.

“An indictment should be specific in its averments in four prime aspects ...: (a) to identify the accusation lest the accused should be tried for an offense different from that intended by the grand jury; (b) to enable the defendant to prepare for his defense; (c) that the judgment may inure to his subsequent protection and foreclose the possibility of being twice put in jeopardy for the same offense, and (d) to enable the Court, after conviction, to pronounce judgment on the record.” (Emphasis added.)

Summers v. State, 348 So.2d 1126, 1132 (Ala.Cr.App.), cert. denied, 348 So.2d 1136 (Ala.1977), cert. denied, 434 U.S. 1070, 98 S.Ct. 1253, 55 L.Ed.2d 773 (1978).

Although the nature of the charge against the appellant is stated in the indictment, the facts relating to the offense are not specific enough “to enable the defendant to prepare for her defense.”

In spite of the state’s argument to the contrary, we have found no way to distinguish this case from Pierce v. State, 42 Ala.App. 53, 151 So.2d 793 (1963). The indictment in Pierce stated as follows:

“The State of Alabama, by its Solicitor, complains of Extra Pierce That, ..., Extra Pierce did wilfully make a false statement or representation to an agent of the Department of Industrial Relations of the State of Alabama to obtain or increase a benefit under the Alabama Unemployment Compensation Law for himself, said false statement or representation consisting of a statement by Extra Pierce on or about the 26th day of July, 1960 that he earned no wages within the period ending on July 23, 1960, against the peace and dignity of the State of Alabama.”

The Pierce indictment, in specifying a single transaction, a particular false statement, and the date of the transaction, was quite a bit more specific than the indictment now before us. Nevertheless, the Court held that the complaint in Pierce was insufficient. The Court stated that “in a false pretense case or case similar to false pretense, such as the one here on appeal, the name of the person to whom the alleged statement is made must be given in order to enable the defendant to prepare his defense.” Pierce v. State, supra. On application for rehearing the Court foreclosed the argument raised in the state’s brief in the instant case by stating that the indictment was not saved by “identifying the Department of Industrial Relations of the State of Alabama as the party to whom the alleged false statement was made.” Pierce v. State, supra.

We are persuaded by Pierce and convinced under the circumstances of the instant case that the indictment herein is insufficient because it fails to meet the standards quoted above from Summers v. State, supra. The appellant was left to speculate as to the particular incidents) with which she was charged.

In Bailey v. State, 159 Ala. 4, 48 So. 791 (1909), a case cited by neither the state nor the appellant, the Court held that an indictment was not defective simply because it alleged that a false pretense was made to a corporation, the Louisville & Nashville Railroad Company, without naming the specific person to whom the false representation was made. The Bailey opinion, however, does not contain the indictment that it upheld. For aught that appears, the indictment in Bailey was sufficient to enable the defendant to prepare his defense, even though it did not specify the particular person to whom the false representation was made. We assume, therefore, that it is not in conflict with Pierce or with our holding herein.

For examples of “false pretense” eases in which the specific misrepresentations have been properly alleged see: Bosworth v. State, 28 Ala.App. 538, 189 So. 794 (1939); Rohme v. State, 339 So.2d 620 (Ala.Cr.App.1976), and cases cited therein.

We acknowledge but need not address appellant’s other arguments on this appeal.

Because the indictment was insufficient, the trial court erred in denying appellant’s “Motion to Quash, Dismiss or Set Aside the Indictment.” Therefore, this cause is due to be reversed and remanded.

REVERSED AND REMANDED.

All the Judges concur, except SAM TAYLOR, J., who dissents with an opinion, in which HUBERT TAYLOR, J., joins.

SAM TAYLOR, Judge

(dissenting).

I respectfully dissent. I believe that my brother judge has correctly applied existing case law, but I believe that law should be changed. Applications for governmental benefit are made on printed forms and signed. They are sometimes mechanically or electronically processed. The fraudulent misrepresentation is made to the public agency; there should not be a requirement that the indictment name an individual to whom the misrepresentation is made.