author: DAN M. LEE, Justice,

text:
    Julie MILLER v. McRAE’S, INC., et al.
    No. 54050.
    Supreme Court of Mississippi.
    Jan. 18, 1984.

      George W. Murphy, Parlin & Murphy, Ocean Springs, for appellant.
    John M. Kinard, Linda D. Baggett, Mege-hee, Brown, Williams & Mestayer, Pasca-goula, for appellee.
    Before BROOM, P.J., and ROY NOBLE LEE and DAN M. LEE, JJ.
   DAN M. LEE, Justice,

for the Court:

This is an appeal from the Circuit Court of Jackson County wherein the circuit judge entered an order dismissing the appellant’s declaration against the appellee. From that dismissal without prejudice the appellant, Julie Miller, brings this appeal and assigns as error the trial court’s opinion, that the Workmen’s Compensation Act is her exclusive remedy for an alleged false imprisonment by her employer. We reverse.

On December 9, 1981, Julie Miller filed a declaration in the Circuit Court of Jackson County against McRae’s Inc. and Jamal El-Amin. The declaration alleged that on the 2nd day of October, 1981, Julie Miller was employed at McRae’s. When she arrived at work that day she was asked to come to the store office where Jamal El-Amin, the head of McRae’s Security Department, began questioning her concerning an amount of money missing from her department. The declaration further alleged that Miller was falsely imprisoned in the store office and that an implied threat of force prohibited her from using the telephone or having freedom of movement. Miller asserted that this conduct on the part of McRae’s and El-Amin was willful and malicious. The declaration further states that as a result of the false imprisonment Miller suffered great humiliation, loss of reputation and physical illness. The declaration asserted that she was entitled to $300,000 actual damages and $500,000 punitive damages.

McRae’s filed an answer denying the essential elements of the allegations of false imprisonment. Subsequently McRae’s amended their answer to assert as an affirmative defense that the Mississippi Workmen’s Compensation Act was the exclusive remedy available to Ms. Miller. Shortly after the amended answer was filed McRae’s filed a motion to dismiss based on the affirmative defense. On a hearing on this motion the circuit judge held:

If there are any injuries, under the particular facts of this case, I think that it is covered under Workmen’s Compensation and that the plaintiffs claim should be limited under the Mississippi Workmen’s Compensation Law, and so hold ...

Upon these facts the sole question presented on this appeal is whether the Mississippi Workmen’s Compensation Act is the exclusive remedy for an employee who alleges that she has been falsely imprisoned by her employer. We begin this inquiry by reviewing the history and purpose of Workmen’s Compensation. In 1949, Mississippi became the last state to adopt a system of Workmen’s Compensation. This type of legislation is generally viewed as a compromise between the interest of labor and business. Because of the exclusive nature of the remedy labor surrenders the right to assert a common law tort action along with the attendant possibility of achieving punitive damages. In exchange it receives assurance that an award is forthcoming. Industry surrenders its three major common law defenses: contributory negligence, assumption of risk, and the fellow servant rule. In exchange it receives the knowledge that there will be no outrageously large judgments awarded to injured employees. The entire system was designed to insure that those injured as a result of their employment would not be reduced to a penniless state and thereby become dependent on some form of governmental public assistance.

Of great importance to the case at bar are two sections of the Mississippi Workmen’s Compensation Act. Section 71-3-9 makes it clear that the legislature intended for the Workmen’s Compensation Act to be the exclusive remedy available to an employee whose injuries fall within the purview of the Act.

The liability of an employer to pay compensation shall be exclusive and in place of all other liability of such employer to the employee, his legal representative, husband or wife, parents, dependents, next-of-kin, and anyone otherwise entitled to recover damages at common law or otherwise from such employer on account of such injury or death, except that if an employer fails to secure payment of compensation as required by this chapter, an injured employee, or his legal representative in case death results from the injury, may elect to claim compensation under this chapter, or to maintain an action at law for damages on account of such injury or death. In such action the defendant may not plead as a defense that the injury was caused by the negligence of a fellow servant, nor that the employee assumed the risk of his employment, nor that the injury was due to the contributory negligence of the employee.

To determine what injuries are com-pensable under the Act, reference is appropriately made to § 71-3-3(b) Miss.Code Ann. (1983):

(b) “Injury” means accidental injury or accidental death arising out of and in the course of employment, and includes injuries to artificial members, and also includes an injury caused by the willful act of a third person directed against an employee because of his employment while so employed and working on the job, and disability or death due to exposure to ionizing radiation from any process in employment involving the use of or direct contact with radium or radioactive substances with the use of or direct exposure to roentgen (X-rays) or ionizing radiation. In radiation cases only, the date of disablement shall be treated as the date of the accident. Occupational diseases, or the aggravation thereof, are excluded from the term “injury,” provided that, except as otherwise specified, all provisions of this chapter apply equally to occupational diseases as well as injury.

Obviously, any injuries sustained as the result of a false imprisonment are not the result of an accident, but rather from a willful act. It therefore becomes important to review the phrase in § 71-3-3(b) “and also includes an injury caused by the willful act of a third person directed against an employee because of his employment while so employed and working on the job.... ” While the term “third person” is not defined by this Code section, we interpret it to mean either a stranger to the employer-employee relationship or fellow employee acting outside the scope and course of his employment. However, where an injury is caused by the willful act of an employee acting in the course and scope of his employment and in the furtherance of his employer’s business, the Workmen’s Compensation Act is not the exclusive remedy available to the injured party. This is the same conclusion reached by other courts. In a case with facts similar to the one now at bar, the Georgia Court of Appeals held that the exclusivity of that state’s worker’s compensation act does not apply to actions for false imprisonment. The Court there held that an action for false imprisonment arises out of acts which are allegedly willful and malicious and that such acts are not compensable under the Georgia scheme of worker’s compensation. Smith v. Rich’s, Inc., 104 Ga.App. 883, 128 S.E.2d 316 (1961).

As previously mentioned, it was never the intention of the Workmen’s Compensation Act to bar an employee from pursuing a common law remedy for an injury that is the result of a willful and malicious act.

Three past decisions of this Court must be examined in order that the meaning of today’s holding may be understood. In Brown v. Estess, 374 So.2d 241 (Miss.1979), Curtis Brown, father of the deceased employee, George Brown, brought an action against the individual members of the board of directors of the Madison County Cooperative and its general manager, N.S. Estess, alleging that their negligence was the proximate cause of the death of his son. George Brown had suffocated in a soybean bin while in the course of his employment at Madison County Cooperative. Upon those facts we held that where the negligence of an employer, fellow employee, or corporate officer was the proximate cause of an employee’s injuries the exclusive remedy was under the Workmen’s Compensation Act. In Taylor v. United States Fidelity & Guaranty Co., 420 So.2d 564 (Miss.1982), this Court refused to allow a separate tort action against the compensation carrier and its representatives based on allegations of bad faith and malicious refusal to pay benefits.

Both Brown and Taylor are distinguishable from the case at bar. In Brown, the plaintiff brought his action on a theory of negligence, not on an allegation of a willful or malicious act. In Taylor the plaintiff was merely seeking compensation due him under the Act. As the Act provides a specific penalty for bad faith refusal to pay, the Act was the exclusive remedy available to Taylor.

The third case we must address is not easily distinguished. In Rico v. Precision Engineering and Mfg. Co., 381 So.2d 170 (Miss.1980), this Court held that the Workmen’s Compensation Act provides the exclusive remedy for an employee who asserts a claim of trespass against his employer. In Rico the plaintiff was a machinist who failed to show for work one day. His employer needed copies of the blue prints of the job on which Rico was working so the Vice-President of the company broke into Rico’s tool box to obtain them. Rico filed suit against his employer based on trespass to chattels and alleged that he had developed severe and disabling mental and emotional instability as the result of the Vice-President’s breaking into his tool box. We held:

We are of the opinion that the injury, if any, did arise out of and in the course of his (Rico’s) employment and that his sole and exclusive remedy is under the provisions of the Mississippi Workmen’s Compensation Act.

381 So.2d at 172.

The failure of the Rico decision was that it ignored the code’s definition of “injury” and looked only to whether the injury arose out of and in the course of Rico’s employment. Where exclusivity of remedy is involved one must ask not only whether the injury arose out of and in the course of employment, but also, whether the injury is compensable under the Workmen’s Compensation Act. Obviously, if the injury is not compensable under the Act, the Act does not provide the exclusive remedy. As the Rico decision failed to make this critical step in the analysis of an assertion of exclusivity we hereby expressly overrule it.

Based on the foregoing, we hold that Julie Miller’s claim of false imprisonment is not barred by the exclusivity of the remedies available under the Workmen’s Compensation Act. Therefore, we reverse the decision of the trial court in dismissing her claim and hereby remand for proceedings consistent with this opinion.

REVERSED AND REMANDED.

PATTERSON, C.J., WALKER and BROOM, P.JJ., and ROY NOBLE LEE, BOWLING, HAWKINS, PRATHER and ROBERTSON, JJ., concur.

      . See Big “2" Engine Rebuilders v. Freeman, 379 So.2d 888 (Miss.1980), where we held that a route salesman who stopped to assist an apparently disabled motorist and who was rendered permanently and totally disabled when the motorist struck him with a gun was entitled to workmen’s compensation. In accord, Williams v. Munford, Inc., 683 F.2d 938 (C.A.5 1982), wherein a convenience store clerk who was raped in the course of a store robbery was held to be limited to the remedies under the Act.

      . See Moore v. Federal Dept. Stores, Inc., 33 Mich.App. 556, 190 N.W.2d 262, 46 A.L.R.3d 1275 (1971). In Moore the Michigan Court of Appeals held that the type of injuries a plaintiff sustains as the result of a false imprisonment (humiliation, embarrassment and deprivation of personal liberty) were not compensable under the Michigan Worker’s Compensation Act. The Court then held that in order to prevent the suffering of a wrong without a remedy, it must allow a common law tort action.


source: Caselaw Access Project

author: BEATTY, Justice. JONES, Justice

license: Public Domain

text:
    John CARTER, Administrator, etc. v. CITY OF BIRMINGHAM, et al.
    82-423.
    Supreme Court of Alabama.
    Dec. 16, 1983.
    O. William Adams, III, Birmingham, and Jack Greenberg, James M. Nabrit, III, and Steven L. Winter, New York City, for appellant.
    Charles H. Wyatt, Jr., Birmingham, for appellee City of Birmingham.
    James T. Collins and John E. Amari, Birmingham, for appellee George M. Sands.
   BEATTY, Justice.

This is an appeal under Rule 54(b), Alabama Rules of Civil Procedure (A.R.Civ. P.), from the grant of partial summary judgments for the defendants. We reverse in part and affirm in part.

The cause arose from the death of Bonita Beatrice Carter, who was shot and killed by George M. Sands, a Birmingham police officer. Following the filing of a claim with the City of Birmingham, the plaintiff, John Carter, administrator of the decedent’s estate, brought this action against the City and Sands. The action was brought under the wrongful death statute, Code of 1975, § 6-5-410 and under § 11-47-190. Motions to dismiss were overruled and the defendants filed answers. Discovery ensued. Plaintiff was allowed to file an amendment to the complaint which added four counts, Counts III, IY, V and VI. Count III stated an action under 42 U.S.C. §§ 1981 and 1983 against Sands for the violation of Bonita Carter’s right under the due process clause of the Fourteenth Amendment to be free from excessive use of force. Count IY alleged a violation of Bonita Carter’s right to equal protection— that Sands would not have used deadly force under the same circumstances had she been white. Count V alleged the City’s culpable conduct in failing to provide clear guidelines and adequate training, and in failing to discipline, retrain, and reassign Sands, in violation of §§ 1981 and 1983. Count VI added a state law claim against the City for its own wrongful acts, omissions, and negligence resulting in the death of Ms. Carter. Motions to dismiss or, in the alternative, for summary judgment were filed by the defendants, and, after a hearing, the summary judgments were granted “as to any and all claims asserted by plaintiff in the amendment filed ... and more specifically as to Count III, Count IV, Count V and Count VI in said amendment.” Summary judgment as to Count VI was not addressed on appeal.

The first issue to be decided by this Court is whether the survival of Bonita Carter’s claim for compensatory damages under § 1983 is governed by federal common law or by reference to the Alabama wrongful death statute, supra. We hold that reference must be made to the Alabama act, and that her claim for compensatory damages under § 1983 does not survive.

The substance of the issue presently before this Court was dealt with in Brazier v. Cherry, 293 F.2d 401 (5th Cir.1961), in a factual context similar to the case at bar. In Brazier, an action was brought against Georgia police officers for the death of the deceased resulting from, inter alia, alleged violations of § 1983. The Court in Brazier pointed out that § 1983 does not expressly refer to actions for death or the survival of claims arising from civil rights violations, and, after examining the aims of Congress with specific regard to § 1983, declared:

“[W]e are of the clear view that Congress adopted as federal law the currently effective state law on the general right of survival. This was done by § 1988. With respect to vindication of federally guaranteed civil rights, Congress provided that in all cases where the laws of the United States are ‘suitable to carry the same into effect’ but are ‘not adapted to the object, or are deficient in the provisions necessary to furnish suitable remedies and punish offenses against law’ then the ‘common law, as modified and changed by the constitution and statutes of the State’ in which the federal court is sitting ‘so far as the same is not inconsistent with the Constitution and laws of the United States’ are to ‘be extended to and govern * * * the trial and disposition’ of the case.
“When we examine § 1988 in the dual spotlight of the historical major aim of the civil rights legislation, Monroe v. Pape, [365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961)], and the tolerant, hospitable construction to ameliorate the hardships of the common law rule, there is ample basis for concluding that this statute fills the gap. In fact it is Georgia law, not federal law, which fills the gap.
“... From a federal standpoint the only limitation upon the use of such adoptive state legislation, rule or decision is that it is suitable to carry the law into effect because other available direct federal legislation is not adapted to that object or is deficient in furnishing a fully effective redress.... ”' (Footnotes omitted.) 293 F.2d at 405-407, 409.

The Court in Brazier went on to hold that, by virtue of the Georgia statutes, which provided for both survival of the claim that the decedent had for damages sustained during his lifetime and a right of recovery by his surviving widow and others for homicide, the § 1983 claims survived.

It is important to note that, unlike the Georgia statutes, which permit both the wrongful death and the survival actions to be maintained simultaneously, under Alabama law only a wrongful death action may be maintained, and only punitive damages are recoverable. Brown v. Morgan County, 518 F.Supp. 661 (N.D.Ala.1981), Code of 1975, § 6-5-410.

Despite this distinction, the Court in Pollard v. United States, 384 F.Supp. 304, 306 (N.D.Ala.1974), citing Brazier v. Cherry, supra, as authority, held, inter alia:

“Since there is no express federal remedy for wrongful death under the civil rights statutes (42 TJ.S.C. §§ 1981, 1983, 1985), the common and statutory law of the State of Alabama must be looked to for a suitable remedy not inconsistent with the Constitution and laws of the United States. 42 U.S.C. § 1988. An action against these state defendants for the wrongful deaths of plaintiffs’ decedents resulting from violations of the civil rights statutes gives rise, by virtue of Alabama’s wrongful death statute, to federally enforceable claims for damages by their personal representatives. Brazier v. Cherry, 293 F.2d 401 (5th Cir.1961), cert. denied, 368 U.S. 921, 82 S.Ct. 243, 7 L.Ed.2d 136 (1961), cited with approval in Moor v. County of Alameda, 411 U.S. 693, 702-703, n. 14, 93 S.Ct. 1785, 36 L.Ed.2d 596 (1973).” 384 F.Supp. at 306.

Further, in the case of James v. Murphy, 392 F.Supp. 641 (M.D.Ala.1975), the plaintiff brought a § 1983 action against state officials for alleged violations of her deceased husband’s civil rights, which resulted in his death, and sought compensatory damages. There, the Court said:

“[Plaintiff], in her complaint, asks for compensatory damages, as did the plaintiff in Brazier v. Cherry, supra — damages sustained by the decedent and damages sustained by his survivors. However, the wrongful death action in Alabama [Code of 1975, § 6-5-410] does not provide for compensatory damages as do the wrongful death acts in Georgia. The Alabama wrongful death act provides only for punitive damages — not for compensatory or actual damages. Hampton v. Roberson, 231 Ala. 55, 58, 163 So. 644; Bell v. Riley Bus Lines, 257 Ala. 120, 57 So.2d 612. The right it creates is the right of the personal representative of the decedent to act as agent by legislative appointment for the effectuation of a legislative policy of the prevention of homicides through the deterrent value of the infliction of punitive damages. Since the Plaintiff, Mattie Mae James, did not claim punitive damages in her complaint, it appears that her complaint is insufficient under §§ 1983, 1988, and the wrongful death act of Alabama [Code of 1975, § 6-5-410] to support a cause of action for the damages claimed.” (Footnote omitted.) 392 F.Supp. at 645.

Nevertheless, these lower federal court holdings must be examined in light of recent pronouncements by the United States Supreme Court on the issue of whether state law shall govern the survivability of certain federal claims.

In Robertson v. Wegmann, 436 U.S. 584, 98 S.Ct. 1991, 56 L.Ed.2d 554 (1978), the Court held that the § 1983 action there would abate in accordance with the Louisiana survivorship statute, thereby reversing the Fifth Circuit Court of Appeals. The Louisiana statute provided that an action for death would survive only in favor of a spouse, children, parents, or siblings of the deceased. In Robertson, the deceased died without being survived by any of the persons named in the statute.

The survival of claims and damages allowable under the Alabama wrongful death statute was carefully scrutinized and upheld in Brown v. Morgan County, supra, “in light of the proviso posited by the Supreme Court in Robertson v. Wegmann, [supra ], ... that state law is to be applied ‘subject to the important proviso that state law may not be applied when it is “inconsistent with the Constitution and laws of the United States.” ’ ” 518 F.Supp. 661, at 663.

Although our analysis here must go further, in view of another recent Supreme Court decision, City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 101 S.Ct. 2748, 69 L.Ed.2d 616 (1981), and its impact on the facts in the present case, discussed ante, we agree with and adopt the reasoning and holding of the District Court in Brown, supra:

“ ‘The policies underlying § 1983 include compensation of persons injured by deprivation of federal rights and prevention of abuses of power by those acting under color of state law.’ Robertson, supra, [436 U.S.] at 590, 591, 98 S.Ct. at 1995. The policies underlying the Alabama wrongful death act include ‘creating a new cause of action, punitive in character, for the benefit of the next of kin entitled to take as distributees of his estate,’ Bruce v. Collier, 221 Ala. [22] at 23, 127 So. 553 [1930], ‘prevention of homicides through the deterrent value of the infliction of punitive damages,’ James v. Murphy, supra at 645, protecting human life, and stimulating diligence in the protection of the natural right to live. Breed v. Atlanta, B. & C.R.R. Co., 241 Ala. 640, 4 So.2d 315 (1941).
“As is readily apparent, deterrence is a goal of both the federal statutes and the Alabama act. A tortfeasor who caused death by his actions would, if found liable under the Alabama wrongful death act, face a punitive damage award designed to punish him for his wrongful act. Such an award would be imposed against tortfeasors held liable for acts causing death, thus deterring future misconduct. Thus, the Alabama policy of protecting human life by deterring future misconduct is consistent with the federal policy of preventing abuses of power. The award of punitive damages effectuates both policies. The policies of the federal statutes and the Alabama statute, are, therefore, in no way inconsistent to the extent that each furthers the policy of preventing wrongful conduct.
“The court is thus faced with this question, as plaintiff would pose it: whether the Alabama act should be rejected because it does not further the compensation policy of the federal act. The court finds that adoption of the Alabama act should not be rejected. It is clear that where the injured party is deceased, any damage award would not compensate him for his injuries, because the cruel fact is that he is no longer present to benefit from any damages awarded. No damage award could compensate him. No damage award could make him whole. An award could create a financial resource for paying the deceased’s medical bills, funeral expenses, etc. Thus, the only benefit the deceased would receive would be the incidental benefit that the beneficiaries of his estate would receive a greater amount than they would if the estate had to pay the deceased’s medical expenses, etc. The policy of compensation is not a factor in death cases because the beneficiaries of such an award would be the same as the beneficiaries of an award of punitive damages — the next of kin, or other beneficiaries of the deceased’s estate. ‘The goal of compensating those injured by a deprivation of rights provides no basis for requiring compensation of one who is merely suing as the executor of the deceased’s estate.’ Robertson v. Weg- mann, supra, 436 U.S. at 592, 98 S.Ct. at 1996. Thus, the policies of the civil rights statutes are fully effectuated by an award of punitive damages, and plaintiff is in no way disadvantaged by being limited to a recovery of punitive damages. The Alabama law should not be abandoned.
“... The Louisiana law was obviously more restrictive than the Alabama wrongful death act under consideration in the case sub judice. And like the Louisiana survival statute under consideration in Robertson, the Alabama death act should not be disregarded and cannot be considered ‘inconsistent’ with federal law merely because the statute provides for recovery of only punitive damages. “... In death cases, however, federal law is deficient. Reference must be made to state law. And, as Robertson teaches, unless the state law is unduly restrictive of the federal claim, the state law is to be applied. The foregoing discussion establishes that the Alabama act is not unduly restrictive of the federal claim.
“In summary, the court finds that federal law is deficient with respect to survival, that the Alabama wrongful death act may be adopted by reference through § 1988, that the policies of the federal civil rights statutes and the Alabama wrongful death act are not inconsistent, and that the Alabama act should be adopted in toto. Compensatory damages are not available to a plaintiff maintaining a 1983 case in reliance on the Alabama wrongful death act....” (Footnotes omitted; emphasis in original.) 518 F.Supp. at 663-665.

With regard to the contention that uniformity is necessary where the survivor-ship of federal causes of action is at issue, the Court in Robertson further stated, in footnote 11:

“11. In addition to referring to the policies underlying § 1983, the Court of Appeals based its decision in part on the desirability of uniformity in the application of the civil rights laws and on the fact that the federal courts have allowed survival ‘in other areas of particular federal concern ... where statutory guidance on the matter is lacking.’ 545 F.2d at 985; see supra, at [436 U.S.] 588 [98 S.Ct. at 1994]. With regard to the latter point, however, we do not find ‘statutory guidance ... lacking’; § 1988 instructs us to turn to state laws, unless an ‘inconsistency’ with federal law is found. While the courts below found such an inconsistency, we do not agree, as discussed in text supra, and hence the survivorship rules in areas where the courts are free to develop federal common law — without first referring to state law and finding an inconsistency — can have no bearing on our decision here. Similarly, whatever the value of nationwide uniformity in areas of civil ■rights enforcement where Congress has not spoken, in the areas to which § 1988 is applicable Congress has provided direction, indicating that state law will often provide the content of the federal remedial rule. This statutory reliance on state law obviously means that there will not be nationwide uniformity on these issues.” (Emphasis added.) 436 U.S. 593-594, 98 S.Ct. 4997.

The plaintiff contends the Court in Brown erred in its reliance on Robertson because the Court in Robertson expressed no view “about whether abatement based on state law could be allowed in a situation in which deprivation of federal rights caused death,” making reference to Brazier v. Cherry, supra, but not overruling that case. 436 U.S. at 594, 98 S.Ct. at 1997. Plaintiff further contends the question reserved in Robertson was answered in Carlson v. Green, 446 U.S. 14, 100 S.Ct. 1468, 64 L.Ed.2d 15 (1980), and asserts Carlson makes it clear that federal common law allows survival of the action, notwithstanding state law. We do not read the holding in Carlson so broadly, considering the language of the Supreme Court in its opinion, ante. Carlson involved an action brought by a mother on behalf of the estate of her deceased son, alleging that he suffered personal injuries from which he died as a result of the actions by petitioners, federal prison officials, in violation of his due process, equal protection, and Eighth Amendment rights. These allegations gave rise to a cause of action for damages under Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). One of the issues decided by the Court in Carlson was whether, in this type of case, survival of the cause of action was governed by federal common law or by state statutes.

It is significant to note, at the outset, that the defendants in Carlson were federal officials, and in the language of its holding in Carlson, the Supreme Court clearly makes this important distinction:.

“Whatever difficulty we might have resolving the question were the federal involvement less clear, we hold that only a uniform federal rule of survivor-ship will suffice to redress the constitutional deprivation here alleged and to protect against repetition of such conduct.
“In short, we agree with and adopt the reasoning of the Court of Appeals, 581 F.2d at 674-675 (footnote omitted):
“ ‘The essentiality of the survival of civil rights claims for complete vindication of constitutional rights is buttressed by the need for uniform treatment of those claims, at least when they are against federal officials. As this very case illustrates, uniformity cannot be achieved if courts are limited to applicable state law. Here the relevant Indiana statute would not permit survival of the claim, while in Beard \v. Robinson, 563 F.2d 331 (CA7 1977),] the Illinois statute permitted survival of the Bivens action. The liability of federal agents for violation of constitutional rights should not depend upon where the violation oc-curred_ In sum, we hold that whenever the relevant state survival statute would abate a Bivens -type action brought against defendants whose conduct results in death, the federal common law allows survival of the action.’ ” (Emphasis added.) 446 U.S. at 23-24, 100 S.Ct. at 1474.

We hasten to point out this distinction made by the Supreme Court in Carlson, which, despite its holding, went on to distinguish and uphold Robertson v. Weg-mann, supra:

“Robertson v. Wegmann, 436 U.S. 584 [, 98 S.Ct. 1991, 56 L.Ed.2d 554] (1978), holding that a § 1983 action would abate in accordance with Louisiana survivor-ship law is not to the contrary. There the plaintiff’s death was not caused by the acts of the defendants upon which the suit was based. [Footnote 11 appeared at this point and is set out below.]
“11. Robertson fashioned its holding by reference to 42 U.S.C. § 1988, which requires that § 1983 actions be governed by ‘the common law, as modified and changed by the constitution and statutes of the State wherein the court having jurisdiction of [the] civil ... cause is held, so far as the same is not inconsistent with the Constitution and laws of the United States.’ Section 1988 does not in terms apply to Bivens actions, and there are cogent reasons not to apply it to such actions even by analogy. Bivens defendants are federal officials brought into federal court for violating the Federal Constitution. No state interests are implicated by applying purely federal law to them. While it makes some sense to allow aspects of § 1983 litigation to vary according to the laws of the States under whose authority § 1983 defendants work, federal officials have no similar claim to be bound only by the law of the State in which they happen to work. Bivens, 403 U.S., at 409 [, 91 S.Ct. at 2011] (Harlan, J., concurring in judgment). Moreover, these petitioners have the power to transfer prisoners to facilities in any one of several States which may have different rules governing survivorship or other aspects of the case, thereby controlling to some extent the law that would apply to their own wrongdoing. See Robertson, 436 U.S., at 592-593, [98 S.Ct. at 1996] and n. 10. Another aspect of the power to transfer prisoners freely within the federal prison system is that there is no reason to expect that any given prisoner .will have any ties to the State in which he is incarcerated, and, therefore, the State will have little interest in having its law applied to that prisoner....” (Emphasis added.) 446 U.S. at 24-25, 100 S.Ct. at 1474.

Thus, we are not persuaded that Carlson v. Green mandates the adoption of a federal rule of survivorship in § 1983 cases, especially where the defendants are not federal officials, but rather state or municipal officials. Therefore, we affirm the grant of summary judgment as to plaintiffs § 1983 claim for compensatory damages as a result of the personal injury and pain and suffering of the deceased prior to her death.

Next, because the plaintiff has asserted a § 1983 claim against the City of Birmingham, we must decide the question reserved in Brown v. Morgan County, supra; namely, whether this Court should permit an action for compensatory damages to survive against a municipality in light of the recent United States Supreme Court decision in City of Newport v. Fact Concerts, Inc., supra, which holds that municipalities are immune from punitive damages under § 1983. Plaintiff contends that the holding in Newport, combined with the holding in Brown, supra, which this Court has adopted today, creates an inconsistency with the Constitution and laws of the United States, calling for resort to the federal common law of survival, Carlson, supra, rather than state law. We disagree. Although, in light of City of Newport, the application of the damages and survival of actions limitations found in the Alabama wrongful death statute will in effect preclude plaintiffs “recovery” from the City of Birmingham on a federal theory, i.e. § 1983, the state law action against the city for wrongful death is still available to the plaintiff. Moreover, the state law affords a remedy beyond that now permitted under federal law — punitive damages. Thus, the application of state law here does not, in substance, abrogate plaintiffs remedy against the city for violations of § 1983, but rather expands the recovery. Nor do we read City of Newport, supra, as a mandate to allow compensatory damages against municipalities in § 1983 suits, especially where the state law recognizes an analogous cause of action. The language of the Supreme Court in Carey v. Piphus, 435 U.S. 247, 258-259, 98 S.Ct. 1042, 1050, 55 L.Ed.2d 252 (1978), is instructive:

“It is not clear, however, that common-law tort rules of damages will provide a complete solution to the damages issue in every § 1983 case. In some cases, the interests protected by a particular branch of the common law of torts may parallel closely the interests protected by a particular constitutional right. In such cases, it may be appropriate to apply the tort rules of damages directly to the § 1983 action. ' See Adickes v. S.H. Kress & Co., 398 U.S. [144], at 231-232 [90 S.Ct. 1598 at 1641, 26 L.Ed.2d 142] (Brennan, J., concurring and dissenting). In other cases, the interests protected by a particular constitutional right may not also be protected by an analogous branch of the common law of torts. See Monroe v. Pape, 365 U.S., at 196, [81 S.Ct. at 488] and n. 5 (Harlan, J., concurring); id., at 250-251 (Frankfurter, J., dissenting in part); Adickes v. S.H. Kress & Co., supra, [398 U.S.] at 232 [90 S.Ct. at 1641] (Brennan, J., concurring and dissenting); Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S., at 394 [91 S.Ct. at 2003]; id., at 408-409 [91 S.Ct. at 2011] (Harlan, J., concurring in judgment). In those cases, the task will be the more difficult one of adapting common-law rules of damages to provide fair compensation for injuries caused by the deprivation of a constitutional right.
“Although this task of adaptation will be one of some delicacy — as this case demonstrates — it must be undertaken. The purpose of § 1983 would be defeated if injuries caused by the deprivation of constitutional rights went uncompensated simply because the common law does not recognize an analogous cause of action. Cf. Jones v. Hildebrant, 432 U.S. 183, 190-191 [97 S.Ct. 2283, 2288, 53 L.Ed.2d 209] (1977) (White, J., dissenting); Sullivan v. Little Hunting Park, 396 U.S. 229, 240 [90 S.Ct. 400, 406, 24 L.Ed.2d 386] (1969). In order to further the purpose of § 1983, the rules governing compensation for injuries caused by the deprivation of constitutional rights should be tailored to the interests protected by the particular right in question — just as the common-law rules of damages themselves were defined by the interests protected in the various branches of tort law. We agree with Mr. Justice Harlan that ‘the experience of judges in dealing with private [tort] claims supports the conclusion that courts of law are capable of making the types of judgment concerning causation and magnitude of injury necessary to accord meaningful compensation for invasion of [constitutional] rights.’ Bivens v. Six Unknown Fed. Narcotics Agents, supra, [403 U.S.] at 409 [91 S.Ct. at 2011] (Harlan, J., concurring in judgment) _” (Emphasis added.)

The interests sought to be protected by the Alabama wrongful death statute closely parallel the interests to be protected where death results from violations of § 1983. Thus, the purpose of § 1983 is not defeated, nor are cities insulated from liability under § 1983, because the law of Alabama does recognize an analogous cause of action, affording an appropriate remedy in death cases. Brown v. Morgan County, supra. Therefore, we affirm the grant of summary judgment with regard only to plaintiff’s § 1983 claim for compensatory and punitive damages against the City of Birmingham.

Nevertheless, we do not ignore the declaration of the Court in Robertson v. Wegmann, supra, at 436 U.S. at 592, 98 S.Ct. at 1996, that “[a] state official contemplating illegal activity must always be prepared to face the prospect of a § 1983 action being filed against him.”

Our holding as to the nonallowability of compensatory damages makes it unnecessary to consider the issues of relation back and proper joinder of claims. Accordingly, the partial summary judgment for the defendants is affirmed in part and reversed in part, and the case is remanded for further proceedings consistent with this opinion.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

TORBERT, C.J., and MADDOX, FAULKNER, SHORES and EMBRY, JJ., concur.

JONES, J., concurs in part and dissents in part.

ALMON, J., not sitting.

ADAMS, J., recuses himself.

JONES, Justice

(concurring in part and dissenting in part):

I agree with the Court’s holding and its rationale as to the individual, Officer Sands; I respectfully dissent as to its holding with respect to the City of Birmingham.

I recognize, of course, as pointed out by the majority, that, “in light of City of Newport,” strict application of “the Alabama wrongful death statute will in effect preclude plaintiff’s ‘recovery’ from the City of Birmingham” under § 1983. But I do not agree that the States are exempt from § 1983’s mandate on the ground that state law “recognizes an analogous cause of action.”

Under this rationale, we could reject all § 1983 actions. Just as our wrongful death act affords a state remedy where death results from conduct proscribed by § 1983, our statutory law and common law affords certain remedies for personal injury resulting from the same culpable conduct. But this does not serve as a basis for rejection of § 1983 actions. In my opinion, the Supremacy Clause of the United States Constitution precludes our rejection of the § 1983 claim against the City. We should either fashion a remedy allowing recovery of compensatory damages, or we should resort to the federal common law of survival, which allows compensatory damages as the appropriate relief. In any event, I would reverse the trial court’s summary judgment as to both the individual defendant and the City of Birmingham.


author: MADDOX, Justice.

text:
    GULF STATES PAPER CORPORATION v. Robert V. HAWKINS.
    82-506.
    Supreme Court of Alabama.
    Dec. 22, 1983.

      William J. Donald and Herschel T. Ham-ner, Jr. of Zeanah, Donald & Hust, Tuscaloosa, for appellant.
    Jack Drake of Drake, Knowles & Pierce, Tuscaloosa, for appellee.
   MADDOX, Justice.

The question presented by this appeal is whether the element of probable cause in this action for malicious prosecution was an issue for the jury’s consideration. Because we reverse and render, a detailed version of the facts is appropriate.

Plaintiff Robert Hawkins is a resident of Tuscaloosa County. On September 17, 1973, Hawkins went to work for Gulf States Paper Corporation (Gulf States), defendant, as the timber engineering director. He then became the forest engineering director. From 1975 or 1976 to the date of his termination on April 21, 1981, Hawkins was director of Gulf States’ Land Engineering Department. His duties generally were to oversee Gulf States’ two survey crews and the road- and bridge-building crew. Commencing in 1975 or 1976, the Land Engineering Department began doing external survey and road-building work for parties other than Gulf States, who paid Gulf States for the external work.

From 1976 through May 1981, Gulf States operated on a fiscal year basis, each fiscal year extending from near the end of May of one year until roughly June 1 of the next year. Hawkins had the responsibility of planning the amount of work that his particular operation would do for a given fiscal year, and projecting the amount of money that his department would make from external work during each fiscal year. Hawkins likewise had the duty and responsibility to bill for external work performed by the Land Engineering Department.

From all accounts, Gulf States’ policy required that an external customer be billed by invoice, with the Land Engineering Department retaining a file copy and Gulf States’ accounting office receiving a copy. External customers were directed to make payment to “cashier Gulf States Paper Corporation,” while checks for company debts made payable to Gulf States’ employees were to be indorsed and turned over to the cashier with an invoice. Likewise, an employee receiving cash due Gulf States was required to deliver that money as soon as possible to the cashier, with an invoice or writing to identify it. Hawkins testified that he understood this to be Gulf States’ policy and practice.

Prior to June 1979, an external customer, Ed Montgomery, employed Gulf States to do survey work and prepare plats on subdivision lots that he owned. The record indicates that Hawkins talked with Montgomery about this work, and that an agreement was reached whereby Gulf States would be paid $80 for each plat prepared.

.On June 18, 1979, Gulf States prepared two plats for Montgomery. On June 20, 1979, the Tuscaloosa law firm of Rosen, Wright, Harwood & Albright issued a check for $80 in payment for one plat, and on August 15, 1979, issued a check for $80 in payment for the other plat. These checks were made payable to Robert V. Hawkins and were mailed to him at his home. Hawkins testified that he did not know why the checks were made payable to him personally or mailed to his house. He, however, indorsed these checks and turned them in to Gulf States, with an invoice, sometime in September 1979.

The facts show that between October 18, 1979, and March 25, 1981, a period of approximately a year and a half, twenty-six additional checks were issued, four by Ro-sen, Wright, Harwood & Albright, and twenty-two by Tuscaloosa Title Company. Each check was in the amount of $80, and each was payable to Robert V. Hawkins. On April 7, 1981, a twenty-seventh check, in the amount of $110, was issued by Tuscaloosa Title Company, payable to Hawkins. These twenty-seven checks were issued as payment for twenty-seven plats prepared by Gulf States’ employees. The first twenty-six checks were for plats for Ed Montgomery, and the twenty-seventh check was for a plat for Richard Montgomery. The four checks issued by the law firm were mailed to Hawkins’s home, while the twenty-three checks issued by Tuscaloosa Title Company were sent to his office at Gulf States.

Hawkins testified that he decided to cash the checks and keep the money and use it to meet his external goal. The money was kept inside a daily planner or calender in an unlocked desk drawer at his office. Hawkins stated that as the $20 bills accumulated, he would change them out for $100 bills.

The twenty-seventh, and last, check cashed by Hawkins was issued on April 7, 1981, by Tuscaloosa Title Company, for survey work done for Richard Montgomery. It was made payable to Hawkins in the amount of $110, and was sent to his office. Hawkins cashed the check on the day he left for vacation in North Carolina and carried the money with him, but he testified that he did not spend any of it.

The facts indicate that Hawkins returned to Tuscaloosa on April 19, 1981, and reported for work on April 20, 1981, a Monday. At that time, $2,080 in cash was in his middle desk drawer. He put a $100 bill in and withdrew four $20 bills to pay for some gas. Hawkins testified that he had two or three $100 bills on him when he returned to work on April 20, 1981.

On April 21, 1981, Hawkins returned to work with the intention of putting $90 into the cash fund in his desk; however, he was met at the door by Louis Lombardy, security director of Gulf States. Lombardy took Hawkins upstairs, where John Watkins of the Tuscaloosa Police Department then came in and met with Hawkins alone. Watkins testified that he identified himself as a city detective and that he said that he was investigating irregularities that involved checks from Tuscaloosa Title Company and that he told Hawkins he was suspected of taking money from Gulf States. This meeting between Detective Watkins and Hawkins was precipitated by the following events as they appear from the record.

Joe Mullins, who worked under Hawkins in the Land Engineering Department, noticed that several checks came into the Gulf States office made out to Hawkins. He testified that in December 1980, an envelope from Tuscaloosa Title Company addressed to Hawkins came to the office, and that he could tell there was a check made ■ to Hawkins in the envelope. Mullins stated that he knew that Gulf States was doing work for Ed Montgomery at that time.

Mullins testified that another envelope addressed to Hawkins arrived in February 1981, and there was a check made to Hawkins in the envelope. Mullins stated that he told Mrs. B.C. Watson, who was the personnel director, that a check made payable to Hawkins had come in. A couple of days later in a telephone conversation with Ed Montgomery, Mullins associated the check received with some work that Gulf States had done for Ed Montgomery. Mullins stated that he checked to see if Gulf States had made an invoice for the Montgomery work, but discovered that there was no invoice in the invoice book. He also checked the number of survey plats against the invoices for the Montgomery work and found a discrepancy in the number of invoices as compared to the number of plats that Gulf States had done.

Mullins testified that he saw another check payable to Hawkins arrive in April after they had done some survey work for Richard Montgomery. He asked Mrs. Watson to check to see if the company received payment for it, and she told him that the company had not received payment. He testified that he then looked through the invoice file and examined the survey plat file and found that there was a discrepancy of twenty-seven to twenty-nine invoices which were not in the invoice file for corresponding plats that were in the survey file.

Mullins said he talked to Mrs. Watson about the discrepancy between the plats and invoices, and next talked to Mr. John Warner, who was executive vice-president of Gulf States. He explained to Warner that he had found a discrepancy in the plats and invoices, that the company did not have invoices to show for work that had been done by company survey crews, and that he had seen a check come in concerning the survey work.

On Thursday, April 16, 1981, Mullins attended a meeting at company headquarters called by Warner. Charles Allison, who was vice-president, secretary, and general counsel of Gulf States, attended the meeting. At the meeting Mullins told the company representatives about the checks and the discrepancies in plats and invoices.

The record indicates that Mullins was excused from the meeting, whereupon Allison asked Paul Hubbard, the company accountant, to go through accounting records to see if he could find any indication that the company had received payment for this series of plat plans for Ed Montgomery. He also asked Louis Lombardy, security director, to go through the drawing records and invoice books to confirm that there was a mismatch between the drawings and the invoices and to look through any other records downstairs to see if he could find any other information that might bear on the question of these plats and payment for them. Allison instructed Lombardy to check Hawkins’s work area and desk. The meeting broke up at 6:30 p.m.

Shortly after the meeting, Lombardy went down to Hawkins’s office and in Joe Mullins’s presence looked in Hawkins’s desk drawer. He found a pocket calendar with twenty $100 bills and four $20 bills, $2,080 in cash. Lombardy also looked at some papers that were in the desk and on top of the desk. He checked the invoice book to see if there were any invoices corresponding to the subdivisions that Gulf States had done survey work for, and found there were no invoices corresponding to that survey work. Since Lombardy’s investigation occurred about 7 p.m., and he was concerned about leaving the money overnight in an unlocked desk drawer, he took it home.

The facts indicated that on the next day, April 17, Lombardy reported to Jim O’Brien, the company’s chief financial officer, and Allison that he had found some cash in Hawkins’s desk, and showed them the money. Lombardy also confirmed at that time that there was a series of twenty-nine plats for which there were no matching invoices. Allison instructed Lombardy to return the money to Hawkins’s desk.

Likewise, that same morning, Hubbard reported to Allison that he had not found anything that he could identify as being payment for this series of plats.

Subsequently, Allison called Gerald Hudson at the Tuscaloosa County District Attorney’s office. He related to Hudson that Gulf States had discovered some money in Hawkins’s desk, that there were some plats that had not been paid for, and that there were some checks issued personally to Hawkins. Allison told Hudson that he was prepared to go to Tuscaloosa Title Company and ask them if they would let him see the checks so that he could determine whether there was any indication on the checks as to whether they had been indorsed and deposited by Gulf States or by someone else.

From the record, it appears that Detective Watkins came to the Gulf States office that afternoon, April 17; met with some of the Gulf States representatives, and went over the information. He met with Allison, Lombardy, and Jim O’Brien. They reviewed with Watkins the same information Allison had discussed that morning with Hudson about plats that were not matched up with invoices; about having seen checks come in from Tuscaloosa Title Company; and about not being able to find any record of their receiving payment for this series of plats.

On Monday evening, April 20, Detective Watkins requested a meeting with Hawkins, which was arranged for the next morning. Watkins also asked that the Gulf States representatives not talk with Hawkins until after he did, and he asked that he be allowed to talk with Hawkins without any of them being present.

Watkins talked to Hawkins about 8 a.m. Hawkins explained to Watkins that he had received checks from Tuscaloosa Title Company that were made out in his name, that he had cashed them and placed the money in his desk drawer, and that the money was to be turned in on May 31, the end of the fiscal year. He stated that there were four checks issued by the Rosen firm and twenty-three checks issued by Tuscaloosa Title Company, as indicated on the survey sheets for Ed Montgomery. Hawkins also told Watkins that none of the checks made out to him had been turned in to Gulf States and that he had planned to turn the money in when he was short on outside income.

The facts show that following his conversation with Hawkins, Watkins talked with Allison. He told Allison that Hawkins admitted cashing the checks and that Hawkins said the following: that he did not intend to steal any money; that he was holding the money to meet his quota, intending to deliver it to the corporation at the end of the fiscal year; that he had the money in his desk drawer.

After Allison talked to Watkins, Allison called Assistant District Attorney Hudson. He related to Hudson the additional information that Watkins had uncovered about the checks being cashed, about Hawkins’s admitting cashing the checks, and about Hawkins’s telling Watkins the money was in the drawer. He asked Hudson whether the money being in the desk drawer made any difference to the case. Hudson either read or quoted to Allison a portion of the statute relevant to the matter which indicated that withholding money under such circumstances that the owner would be deprived of the use of it would constitute criminal conduct. Hudson indicated that upon completion of the investigation by Watkins, he would ask Gulf States to sign a warrant.

The record shows that following a conversation between Hawkins and Allison in the presence of other Gulf States representatives, in which Hawkins gave the same details as he had related previously to Detective Watkins, Hawkins’s employment with Gulf States was terminated. During this meeting, he apparently neither mentioned the $90 that he had in his pocket that belonged to Gulf States, nor later returned it to the company. The money which had been in Hawkins’s desk drawer was, however, turned over to the company. It was then placed in an envelope and sealed.

From the record, it appears that before signing the warrant, Lombardy had some conversations with Detective Watkins, who was actively investigating the case. From those conversations, Lombardy learned that there were twenty-seven plats for which Gulf States had done the work that had not been invoiced; that the checks for these plats had been made out to Hawkins for the amount of $2,190, and that Hawkins had subsequently cashed the checks. Watkins’s first questions was whether Gulf States would be willing to prosecute Hawkins if a crime was involved, and representatives of Gulf States responded that they would cooperate with the authorities if there was a crime involved. Watkins and Lombardy had also discussed the fact that it appeared that there was probable cause to believe a crime had been committed. The issue of probable cause was also discussed with Allison.

When Detective Watkins informed Lombardy that he was ready to have a warrant signed, Lombardy called Allison, who authorized Lombardy to sign the warrant.

Hawkins was subsequently arrested for theft of property in the first degree. A preliminary hearing was conducted on June 8, 1981, before then-District Judge Karrh, who made a finding that there was probable cause to believe that an offense had been committed and that Hawkins had committed it, and bound Hawkins over to the grand jury.

The case was presented to the grand jury and a “no bill” was rendered in the case. The case was returned to the grand jury and additional evidénce presented. A second “no bill” was returned in the case by the grand jury.

Hawkins filed suit against Gulf States to recover his last month’s salary, which the company had refused to pay. The complaint was later amended to include, in addition to the count for money owed, a count of malicious prosecution and a count of slander. The complaint was again amended to allege that the grand jury had for a second time returned a “no bill” as to the charges against Hawkins.

During the trial of the case, Gulf States amended its answer so as to admit that it owed Hawkins $2,135.64. On motion of Gulf States, a directed verdict was granted by the trial court in favor of Hawkins on count one. The slander count (count three) was dismissed by Hawkins, and the trial proceeded as to count two, malicious prosecution. At the close of all the evidence, Gulf States moved for a directed verdict, which was denied by the trial court. The jury returned a verdict in favor of Hawkins and against Gulf States in the amount of $200,000. Gulf States then filed a motion for judgment notwithstanding the verdict, or, in the alternative, for a new trial. This motion was denied by the trial court, whereupon Gulf States appealed.

I

A directed verdict or judgment notwithstanding the verdict is governed by the scintilla rule. Rule 50(e), Ala.R.Civ.P. We have emphasized that:

“ ‘ * * * it is only where the facts are such that all reasonable men must draw the same conclusion from them that the question ... is ever considered as one of law for the court. Unless the evidence is free from doubt or adverse inference, the question is for the jury. Alabama Power Co. v. Guy, 281 Ala. 583, 206 So.2d 594. Where the affirmative charge [now directed verdict] is requested, the entire evidence must be viewed in a light favorable to the opponent. When a reasonable inference may be drawn, which is adverse to the party requesting the charge, the charge is properly refused. (Citations omitted)’ (Emphasis supplied [in Alabama Power Co. v. Taylor, 293 Ala. 484, 306 So.2d 236].)
U * * *
“ ‘In civil cases, a question must go to the jury, if the evidence, or any reasonable inference arising therefrom, furnishes a mere gleam, glimmer, spark, the least particle, the smallest trace, or a scintilla in support of the theory of the complaint. (Citations omitted. * * * ’ Kilcrease v. Harris, 288 Ala. 245, 259 So.2d 797 (1972).
“A defendant as well as a plaintiff is entitled to the benefit of the scintilla rule. McHugh v. Harrison, 266 Ala. 138, 94 So.2d 756 (1957).”

Turner v. Peoples Bank of Pell City, 378 So.2d 706, 709 (Ala.1979) (quoting Alabama Power Company v. Taylor, 293 Ala. 484, 492, 306 So.2d 236, 243 (1975)).

The standard for testing a motion for judgment notwithstanding the verdict is identical to that for testing a motion for directed verdict. Casey v. Jones, 410 So.2d 5, 8 (Ala.1981). Consequently, our review of the trial court’s failure to grant Gulf States’ motion for directed verdict at the close of the evidence or its motion for a judgment notwithstanding the jury’s verdict is guided by these principles.

II

The essential elements of a cause of action for malicious prosecution are well known: (1) a judicial proceeding initiated by the defendant; (2) the lack of probable cause; (3) malice on the part of the defendant; (4) termination of the judicial proceedings favorably to the plaintiff; and (5) damages. Alabama Power Co. v. Neighbors, 402 So.2d 958 (Ala.1981); S.S. Kresge Co. v. Ruby, 348 So.2d 484 (Ala.1977); Birwood Paper Co. v. Damsky, 285 Ala. 127, 229 So.2d 514 (1969); Hanchey v. Brunson, 175 Ala. 236, 56 So. 971 (1911). In order for the plaintiff to prevail, every one of these elements must be proved. Alabama Power Co. v. Neighbors, supra, 402 So.2d at 962. The element of probable cause is the focus of this appeal.

In the action below, the trial court ruled that the presumption of probable cause created by the district court’s binding Hawkins over for the grand jury, on the one hand, and the presumption of a lack of probable cause resulting from the “no bill” action of the grand jury, on the other, cancelled one another so as to make the issue of probable cause a disputed issue and thus a question for the jury to resolve. The portion of the trial court’s order discussing the authorities supporting the cancellation theory is included below.

“Miller v. Chicago, M. & St. P. Ry. Co., 41 F. 898 (Cir.Ct., W.D.Mo.1890), is factually similar [to this case]. In that case the court was faced with the same adverse actions of two regularly constituted judicial bodies. The court held that where there was such an even balance of presumptions, they counterbalanced each other and it devolved upon the plaintiff to carry the burden of proving want of probable cause. Id., at 902, 905.
“In Lindsey v. Couch, [22 Okl. 4] 98 P.[2d] 973 (Okla.1908), the facts were reversed. The magistrate had discharged the accused and the grand jury had subsequently indicted. The court held that the conflicting presumptions cancelled each other, and that nothing was proven thereby on the issue of probable cause. Id., at 976-977.
“Although not directly addressing the point, several other factually similar cases either recognize the possibility of the rule, or fail to reject the rule. See, e.g., Mitchem v. National Weaving Co., 210 N.C. 732, 188 S.E. 329, 330 (1936); Jones v. Wilmington & W.R. Co., [131 N.C. 133] 42 S.E. 559 (N.C.1902); Wells v. Parker, [76 Ark. 41] 88 S.W. 602 (Ark. 1905); Cunningham v. Mareno, [9 Ariz. 300] 80 P. 327 (Ariz.1905); Brady v. Stilner, [40 W.Va. 289], 21 S.E. 729 (W.V. 1895).
“Apparently contra is Drake v. Anderson, [215 Or. 291] 334 P.2d 477 (Ore. 1959). In Drake, the accused was bound over, and the action was no billed. The court held those facts established ‘only a prima facie case of probable cause,’ as opposed to a conclusive presumption. Id., at 479. The court does not specifically address the cancellation theory. Drake is a case affirming a plaintiff’s verdict on a defendant’s appeal, and the cancellation theory apparently was not advanced by either party.
“On the authorities cited, the court concludes that the majority rule is that where two separate judicial bodies have reached opposite results on the probable cause issue, the resulting, conflicting presumptions cancel each other, and the burden of establishing [want of] probable cause devolves upon the plaintiff. The Drake ease, which is more favorable to the defendant, does not directly discuss the cancellation theory. The court adopts and applies the majority rule to this case.
“The fact that the district court found probable cause and bound plaintiff over, [and the fact that] the grand jury subsequently entered two no bills cancel each other on the question of prima facie presumptions, and the plaintiff thus has the burden of proving want of probable cause on the part of the defendant. See Hanchey v. Brunson, supra, [175 Ala. 236, 56 So. 971], at 972; Alabama Power Co. v. Neighbors, supra, [402 So.2d 958], at 962.”

The trial court is correct in holding that the burden of proving that probable cause did not exist was, regardless of the cancellation theory, still upon the plaintiff, Hawkins; and it was Hawkins’s burden to prove that it did not exist at the time the prosecution was instituted by Gulf States. Hanson v. Couch, 360 So.2d 942 (Ala.1978); S.S. Kresge Co. v. Ruby, supra; Piggly-Wiggly Alabama Co. v. Rick-ies, 212 Ala. 585, 103 So. 860 (1925); Hanchey v. Brunson, supra; Gulsby v. Louisville & N.R.R. Co., 167 Ala. 122, 52 So. 392 (1910). We need not embrace the concept of the cancellation theory as creating a jury issue in this case, and thereby precluding a directed verdict on the question of probable cause, because we find the material facts as they relate to the issue of probable cause are uncontroverted. In fact, in cases where the only action has been a grand jury “no bill,” such is prima facie evidence only and the effect of its introduction is to shift the burden of proof to the defendant, thus requiring him to come forward with evidence that probable cause existed. See Stouts Mountain Coal Co. v. Grubb, 217 Ala. 274, 275, 116 So. 156, 157 (1928). While such prima facie showings or presumptions are rebuttable, their purpose is to shift the burden of proof and not to create inferences of fact.

Ill

“ ‘Probable cause’ as the term is employed in actions for malicious prosecution, is such a state of facts in a mind of the prosecutor as would lead a man of ordinary caution and prudence to believe or entertain an honest and strong suspicion that the person is guilty.” Birwood Paper Co. v. Damsky, supra, 285 Ala. at 134, 229 So.2d at 521; Hanchey v. Brunson, supra, 175 Ala. at 240, 56 So. at 972. As the Court explained in Gulsby v. Louisville & N.R.R. Co., supra:

“Whether the plaintiff was in fact guilty of the offense is not a controlling inquiry on this issue. — McLeod v. McLeod, [75 Ala. 483 (1883)]. The question is, Were the known (to the prosecution) facts and circumstances sufficient, regardless of the unfavorable (to the state) event of the prosecution, to justify a reasonable and cautious man in believing the plaintiff guilty? The consequence necessarily is that a want of knowledge of sufficient evidence to convict the accused of the offense charged is not the test of probable cause vel non. And it is necessarily a corollary that the facts and circumstances known to the prosecution, and on which, under the doctrine of probable cause, he was authorized to act, need not be legally admissible evidence on the trial of the accused.
“Between the evident policy of the law to bring the guilty to justice, which is usually begun by steps taken by the citizen, and, on the other hand, the right of the other citizen to be free from the accusation of crime without probable cause therefor, the law must hold an even hand, never so exaggerating the latter protective right as to render the exercise of the means afforded for the detection and punishment of crime against the state an act of peril and penalty to the citizen who, in good faith and with probable cause therefor, starts the machinery of the penal law against the accused. Neither right nor policy, of the two mentioned, is superior in the eyes of the law. Ignoring one is as grave in consequence as ignoring the other. Both must be fairly considered, when occasion arises, to determine such issues as are here presented.”

167 Ala. at 130, 52 So. at 395 (emphasis in original). Hence, the question becomes one of whether or not the defendant acted in good faith on the appearance of things. See Birwood v. Damsky, supra, 285 Ala. at 135, 229 So.2d at 521.

The warrant issued for Hawkins’s arrest charged theft of property in the first degree. It was based on the affidavit of Louis Lombardy, security director of Gulf States, and authorized by Charles Allison, general counsel of Gulf States. Lombardy’s affidavit, in pertinent part, read:

“Robert V. Hawkins ... within twelve months before [the] making [of] this affidavit ... did knowingly obtain or exert unauthorized control over 27 cheeks, the property of Gulf States Paper Corp., of the value of $2,190, with the intent to deprive the owner of said property, in violation of 13A-8-3 of the Code of Alabama....”

It is a violation of Code 1975, § 13A-8-3, for a person to knowingly obtain or exert unauthorized control over the property of another, with the intent to withhold the property from the owner for such a period or under such circumstances that all or a portion of its use or benefit would be lost to the owner. Section 13A-8-3 provides:

“(a) The theft of property which exceeds $1,000 in value, or property of any value taken from the person of another, constitutes theft of property in the first degree.
“(b) The theft of a motor vehicle, regardless of its value, constitutes theft of property in the first degree.
“(c) Theft of property in the first degree is a Class B felony.”

“Theft of property” is defined in § 13A-8-2 as follows:

“A person commits the crime of theft of property if he:
(1) Knowingly obtains or exerts unauthorized control over the property of another, with intent to deprive the owner of his property; or
(2) Knowingly obtains by deception control over the property of another, with intent to deprive the owner of his property.”

The term “deprive,” as it relates to a criminal offense involving theft, is defined by § 13A-8-l(2)a. to mean:

“To withhold property or cause it to be withheld from a person permanently or for such period or under such circumstances that all or a portion of its use or benefit would be lost to him .... ”

As they appear from the record, Hawkins’s actions lead the Court to the conclusion that they furnished prima facie evidence of guilt which was sufficient to furnish probable cause for commencing a prosecution for theft of property. See Elliott v. Caheen Bros., 228 Ala. 432, 434, 153 So. 613, 614 (1934). The uncontrovert-ed facts show that Hawkins cashed twenty-seven checks which belonged to Gulf States; that Hawkins kept the money from the cashed checks in his desk drawer without company authorization for some eighteen months, thereby depriving Gulf States of the use of the money and interest on the funds; and that he violated the company’s policy by keeping the money and not turning it in to the company cashier. Although Hawkins denied an intent to permanently take the funds, he specifically admitted that he deprived Gulf States of the use of its funds by virtue of his unauthorized control of them.

In Hawkins’s brief, the following statements are made:

“No one except one who wanted to believe it, would have ever thought that Bob Hawkins was stealing. Checks were made payable by third parties, for work done by [Gulf States] to Bob Hawkins and mailed to him at his office at the [Gulf States] headquarters. Hawkins then cashed the checks and kept the money in an unlocked desk drawer. He did this within the sight of other employees —indeed, he did it in virtually plain view.
“When confronted with the fact that the money had been found, Hawkins readily described' the entire story for anyone who asked. The story he told in court is the same one he told Sgt. Watkins and the [Gulf States] executives.”

Hawkins’s denial and explanation of his actions to Gulf States officials, however, did not present a jury question on the issue of probable cause. From the facts appearing in the record, the Court concludes that Gulf States was acting as “a cautious man” would act in believing at the time the warrant was signed that Hawkins had committed the crime of theft. Likewise, the Court finds that the question of probable cause was not one of fact for the jury. Indeed, Hawkins admitted that he accepted checks which were company property and was without authority to cash them and hold the money until such time as it was needed to help him meet his income projections for the land department. When the facts as they relate to the issue of probable cause are undisputed, as they are here, the question of whether the facts constitute probable cause is one of law for the court and not an issue for the jury to decide. Hanson v. Couch, supra, 360 So.2d at 945; S.S. Kresge Co. v. Ruby, supra, 348 So.2d at 488; Key v. Dozier, 252 Ala. 631, 634, 42 So.2d 254, 256 (1949).

Consequently, since the evidence was undisputed as to probable cause, the trial court erred by not entering a directed verdict at the close of the evidence or granting the motion for a judgment notwithstanding the verdict following the jury’s verdict.

REVERSED AND RENDERED.

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


author: WRIGHT, Presiding Judge.

text:
    BICKERSTAFF CLAY PRODUCTS COMPANY v. Tommy Lee DIXON.
    Civ. 3747.
    Court of Civil Appeals of Alabama.
    Oct. 26, 1983.
    Rehearing Denied Nov. 30, 1983.
    Certiorari Denied Jan. 20, 1984 Alabama Supreme Court 83-266.

      Ronald G. Davenport of Ferrell, Davenport & McKoon, Phenix City, for appellant.
    Charles E. Floyd, Phenix City, for appel-lee.
   WRIGHT, Presiding Judge.

This is a workmen’s compensation case.

The claimant injured his back while working at Bickerstaff Clay’s brickmaking plant. After hearing, the trial court found the claimant to have a fifty percent permanent partial disability to earn and awarded him $148 per week for 260 weeks and four days. Subsequently, the court amended its judgment, allowing only $74 per week for 260 weeks and four days. After a hearing on the proper calculation of benefits due and on the employer’s motion for a new trial, the court again amended its judgment, allowing claimant $126.73 per week for 260 weeks and three days.

The employer appeals asserting three errors: (1) that the claimant suffers from a psychic injury which is not compensable under Alabama’s workmen’s compensation statute; (2) that there is no legal evidence to support the trial court’s determination that the claimant suffers from a fifty percent permanent partial disability to earn; and (3) that the trial court improperly calculated the amount of compensation due pursuant to §§ 25-5-57, -68, Code of Alabama 1975.

We have previously recognized that psychic injuries are compensable where an employee suffers a physical injury or trauma in the line and scope of his employment, developing a neurosis as a proximate result. ABEX Corporation v. Coleman, 386 So.2d 1160 (Ala.Civ.App. 1980); Fruehauf Corporation v. Prater, 360 So.2d 999 (Ala.Civ.App.1978). Because it is undisputed that claimant suffered a severe back injury while working within the line and scope of his employment and that he now suffers from a resulting disabling neurosis, we follow the holdings in ABEX, supra and Fruehauf, supra. We find the claimant is entitled to compensation. Employer’s contention that this case should be distinguished from Fruehauf and ABEX because of a lesser severity of trauma and physical injury suffered is not supported by the record. The evidence indicates that the injury sustained by this claimant was more severe than that suffered by the claimant in ABEX.

Employer’s contention that the court improperly determined claimant to have a fifty percent permanent partial disability to earn, because medical evidence indicated only a fifteen percent disability to the back and a seven percent disability to the body as a whole, is not accepted. In reaching the required factual conclusion of percentage loss of earning capacity, disability of the body is not the only determinative factor. The court may consider other factors, including the claimant’s age, education and experience, as they affect his employability and earning capacity. City of Enterprise v. Herring, 372 So.2d 358 (Ala.Civ.App.1979).

In workmen’s compensation cases, the standard of review is whether there is any legal evidence to support the trial court’s findings. Young v. City of Huntsville, 342 So.2d 918 (Ala.Civ.App.), cert. denied, 342 So.2d 924 (Ala.1977). We must accept such findings if supported by any legal evidence. B.F. Goodrich v. Martin, 47 Ala.App. 244, 253 So.2d 37 (1971).

A review of the record shows that the trial court properly considered evidence of claimant’s back and wholebody disability, along with his lack of skills and education. The claimant was seen and observed by the judge. The determination of the extent of claimant’s ability to earn after his injury was the responsibility of that court in light of all the evidence. The court is not bound by expert testimony. Pinto Island Metals Co. v. Edwards, 275 Ala. 351, 155 So.2d 304 (1963).

We do not find that the trial court erred in its computation of the claimant’s benefits. Section 25-5-57(3)(g), Code of Alabama 1975, provides in pertinent part as follows:

“In all other cases of permanent partial disability not above enumerated, the compensation shall be 66% 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, subject to the same maximum weekly compensation as stated in Section 25-5-68.”

This provision is supplemented by § 25-5-68, Code of Alabama 1975, which provides as follows:

“With respect to injury or death resulting from an accident occurring on or after July 1, 1976, the compensation paid under this article shall be not less than, except as otherwise provided in this article, 25 percent of the average weekly wage of the state as determined by the director of industrial relations (rounded to the nearest dollar) pursuant to subsection (c) of this section and, in any event, no more than 66⅜ percent of such average weekly wage.”

Though the record shows that the claimant was being paid $380.18 per week at the time of his injury, the employer contends that the 66% percent of average weekly wage figure referred to in § 25-5-68 (in this case $148.00) should be used as a ceiling on the amount of average weekly wages from which weekly compensation may be calculated. He contends that the amount of compensation should be computed as follows:

“Average weekly earnings of plaintiff $ 380.18 pursuant to § 25-5-57(a)(3)g x 66%
$ 253.45
Since $253.49 is more than $148.00, maximum weekly compensation rate of $148.00 should be applied
Maximum weekly compensation $ 148.00
percentage of disability to earn 50%
Weekly compensation due plaintiff $ 74.00”

We totally disagree with this formula. We find the following formula used by the trial court more accurately reflects the clear language of the statute:

“Average weekly earnings of plaintiff-employee $ 380.18
Percentage of plaintiff’s disability to earn x .50
Average weekly earnings plaintiff can earn in his partially disabled condition $ 190.09
66⅜ percent pursuant to 25-5-57(a)(3)g x .66⅜
Weekly compensation due plaintiff-employee $ 126.73”

Only after weekly compensation due is determined, using this formula, will the ceiling mentioned in § 25-5-68 apply.

Thus, weekly compensation payments due will always be the lesser of weekly compensation due, as computed above, or the 66⅜ percent of average weekly wage ceiling stated in § 25-5-68.

Our reading of these statutes is supported by recent articles and treatises on the subject and by previous decisions. Goodyear Tire & Rubber Co. v. Corfman, 424 So.2d 1326 (Ala.Civ.App.1982).

Finding that the claimant has a compen-sable injury, that the amount of disability found by the trial court is accurate, and that the calculations used to determine benefits were proper, we affirm.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.

      . J. Hood, B. Hardy Jr., E.J. Saad, Alabama Workmen's Compensation, § 10-10 (1982); J. Haley, Handbook on Alabama’s Workmen’s Compensation Law, 87-89 (1982).