author: FAULKNER, Justice.

text:
    Wayne TEAGUE, et al. v. Raymond J. GLASSCOCK.
    82-738.
    Supreme Court of Alabama.
    Aug. 24, 1984.
    Rehearing Denied Sept. 21, 1984.

      Jeffery A. Foshee and Charles S. Coody, Montgomery, for appellants.
    Jim L. deBardelaben and Julian L. McPhillips, Montgomery, for appellee.
   FAULKNER, Justice.

Raymond Glasscock filed this action against Wayne Teague and other state officials seeking reinstatement to his prior position as a laborer for the state Department of Education. After an ore tenus hearing, the trial court found in Glasscock’s favor and ordered the state to reinstate Glass-cock and to pay him back wages from the date of his termination. Teague and the other defendants appealed. We reverse and remand.

Section 36-27-16(a)(l)(c), Code of Alabama 1975, requires that certain state employees retire at age 70. Upon reaching age 70, an employee may, however, make application to the State Personnel Board to continue working for the state on a year-to-year basis. The statute requires an employee to furnish evidence of physical and mental fitness to the board. The personnel board must approve the employee’s application for continued employment in order for an employee to continue working for the state beyond the age of 70. The Handbook for Employees of the State Personnel Department provides:

“Retirement at age 70 is compulsory, unless the Personnel Board, on the recommendation of the appointing authority and a medical review board, approves extension of service from year to year. Employees who want to work past age 70 must make a request and furnish a report of the physical examination on forms prescribed by the Personnel Board.”

The forms provided by the personnel department include spaces for a report of a physical examination and a space for review by the medical board of the State Retirement System. When the completed form is submitted to the personnel department, that department refers the form to the head of the employee’s department or agency. Prior to August 9, 1979, the personnel board made its decision regarding whether to allow the employee to continue working based on the recommendation of the head of the department in which the employee worked. On August 9, 1979, then-Governor Fob James issued a memorandum stating:

“[N]o department, agency, board et al. is to request a waiver of the 70 year old mandatory retirement without the approval of the Finance Director, and his approval is only to be given in the case when the public health of Alabama would be impaired.”

After the Governor issued the memorandum, the procedure for determining whether an employee was entitled to continue in the state’s employ was altered to conform to the Governor’s dictates. See Hawkins v. James, 411 So.2d 115 (Ala.1982).

Plaintiff reached age 70 on October 5, 1980. In his complaint he alleged that he was informed by his immediate supervisors of the Governor’s retirement policy and that he did not apply for an extension of his employment because he was “chilled” by the information he was given about the Governor’s memorandum. He claims that, had it not been for the memorandum, he “would most likely have received an extension of his employment beyond age seventy.”

Subsequent to plaintiff’s retirement this Court rendered its decision in Hawkins, supra. Hawkins was an employee of the Department of Pensions and Security who was over 70 years old. She had applied for and had been granted three one-year extensions of employment after reaching age 70. In July of 1980, Hawkins again applied to the personnel board for a continuation of her employment. Despite the fact that her supervisors reported to the personnel board that her “unusual combination of knowledge, skill and experience” represented “unique assets to the Department” which could not be replaced, the board refused to allow her continued employment beyond September 30, 1980. After that time she continued to work for the Department as a non-paid volunteer and brought an action challenging the personnel board’s refusal to allow her continued employment.

This Court ruled that the Governor’s attempt to alter the operation of the statute by frustrating employees’ rights to continued service beyond age 70 constituted a violation of the separation of powers provision of the Alabama Constitution of 1901, Article III, § 43. The evidence in that case clearly showed that, but for the Governor’s memorandum, Hawkins’s request for a continuation of her employment would have been approved. This Court reversed the trial court’s order granting the defendant’s motion to dismiss and remanded the action to the circuit court for further proceedings.

Plaintiff in this case alleges that he is in excellent physical and mental health and that he “very much desires to be back at work at the A & F Services Division of the State Education Department in a job he believes himself to have been forced out of by the Governor’s retirement policy.” He argues that the Governor’s unconstitutional attempt to frustrate employees’ attempts to seek continued service with the state past age 70 constituted legal fraud and that his cause of action for the misrepresentation did not accrue until his “discovery” of the fraud when this Court handed down the decision in Hawkins, supra.

The Department of Education argues that Glasscock’s retirement was not governed by the State Employee’s Retirement System Act, § 36-27-16, but that it was governed by the provisions of the Teacher’s Retirement System Act, § 16-25-14(a)(3), because Glasscock worked for the Department of Education. The defendants take the position that Glasscock was not eligible for a continuation of his employment pursuant to § 36-27-16.

Although the parties’ arguments addressed the question of which act governed the plaintiff’s retirement, we do not consider the resolution of that issue to be dispositive of this case. Even if Glasscock is correct in his contention that his retirement was governed by § 36-27-16 and, therefore, that he was entitled to apply for a continuation of his employment upon reaching age 70, he was not entitled to be reinstated with back pay, because he never availed himself of the opportunity to apply for a continuation. Under the unambiguous provisions of the statute, continuation of employment past age 70 is not contingent merely on plaintiff’s continued mental and physical fitness. It requires those who seek continued employment to apply to the personnel board and to furnish the board with evidence of their physical fitness. Unlike the employee in Hawkins, who complied with the statute and was wrongfully denied a continuation because of the Governor’s directive, Glasscock never sought continued employment. Plaintiff, in effect, seeks back pay for work not performed, on the theory that he was denied the right to continue working, when, in fact, he never sought to continue working.

Even if we accept as true plaintiff's claim that because of the Governor’s memorandum he was “chilled” from applying for continued employment, and even if we were to agree with his conclusion that the memorandum constituted a fraudulent misrepresentation which could not reasonably have been discovered until the Hawkins decision was rendered, plaintiff was not entitled to recover. Even after the Hawkins decision was handed down, plaintiff apparently never applied to the personnel board for a continuation of employment. At most, the alleged misrepresentation would have tolled the time for applying to the board. It would not have obviated the necessity to apply and to produce evidence of fitness. The statute established a procedure for making the determination of whether the plaintiff was entitled to continue. Since plaintiff failed to follow the clear dictates of the statute, he was not entitled to prevail.

The trial court’s order is hereby reversed and the case is remanded.

REVERSED AND REMANDED.

TORBERT, C.J., and MADDOX, JONES, ALMON, SHORES, EMBRY and BEATTY, JJ., concur.

ADAMS, J., dissents.

      . The facts relating to the Hawkins case were taken from a stipulation of facts contained in the briefs filed with this Court in that case.


source: Caselaw Access Project

license: Public Domain

text:
    Paul COOPER, Larry Williams and Larry Brand v. R.C. THOMAS, Jr.
    83-495.
    Supreme Court of Alabama.
    Aug. 24, 1984.

      Eugene P. Stutts and Marcia W. Wright of Sadler, Sullivan, Sharp & Stutts, Birmingham, for appellants.
    James D. Forstman, Birmingham, for ap-pellee.
   FAULKNER, Justice.

Paul Cooper, Larry Williams, and Larry Brand, by permission of this Court, appeal from interlocutory orders entered in a personal injury action denying their respective motions for summary judgment and reconsideration based on the statute of limitations. We affirm.

On September 28, 1979, while working as a laborer, at the Jim Dandy Company in Birmingham, Alabama, R.C. Thomas, Jr., then eighteen years old, was caused to slip on a wet and slippery floor withip the Jim Dandy plant and fall into an unguarded Surg Hopper Machine. As a result of this fall, Thomas suffered permanent injury to his left arm and hand.

Thomas reached age 19 on April 25,1980. The one-year statute of limitations began to run that day. Thomas filed suit in Jefferson County Circuit Court on April 24, 1981, one day before the expiration of the one-year statute of limitations, seeking monetary damages for his injuries. Named in the complaint as originally filed were Paul 0. Burge Engineering Professionals, a partnership; Paul 0. Burge Engineering Professionals, a corporation; Paul 0. Burge, an individual; Aetna Life and Casualty Insurance Company, a corporation; fictitious defendants “A”, “B”, and “C”; and fictitious defendants 1 through 32.

For purposes of this appeal, we note that the caption, of the complaint describes fictitious defendant “B” as:

“... that company officer, owner or employee of the Jim Dandy Company known as the Safety Director.”

Fictitious defendant number 27 is described as:

“... that entity who or which conducted the safety inspections or analyses at or with reference to the site of the occurrence made the basis of Plaintiffs Complaint prior to the date of said occurrence.”

Fictitious defendant number 28 is described as:

“... that entity who or which controlled, or had the right to control the work being done by Plaintiff or Plaintiffs employer at the time of the occurrence made the basis of Plaintiffs Complaint.”

At the conclusion of the description of the fictitious defendants, plaintiff averred that he did not know the identity of the foregoing fictitious parties defendant at the time he filed the complaint, or in the alternative, if he did know the names, he did not know their identity as proper parties defendant but that he would amend the complaint and substitute the real parties when their identity was ascertained.

The original complaint contained six counts. Paragraph five of count one is central to our consideration. It provides:

“5. Plaintiff, R.C. Thomas, Jr., further avers that all of his injuries and damages were the direct and proximate result of the negligence of the defendants in one or more of the following aspects: (a) in negligently manufacturing said SURG HOPPER MACHINE without reasonably adequate safety guards ... (b) negligently designing said SURG HOPPER MACHINE without reasonably adequate safe guards ... (c) Defendants negligently failed to warn the plaintiff of the hazard, and danger.”
(Emphasis added.)

On May 15, 1981, by motion of the defendant Aetna, the cause was removed to United States District Court for the Northern District of Alabama, on the basis of diversity jurisdiction. There, Aetna successfully sought summary judgment in its favor and against Thomas.

Thomas claims that through an affidavit proffered in support of Aetna’s motion for summary judgment, he first learned the names of fictitious defendants “B”, “27”, and “28”. Thereafter, on March 1, 1982, Thomas amended his complaint, substituting Larry Williams, Larry Brand, and Paul Cooper for fictitious defendants “B”, “27”, and “28” respectively.

The addition of Paul Cooper to the amended complaint destroyed diversity jurisdiction. Accordingly, on September 27, 1982, the action was remanded to the Jefferson County Circuit Court.

, In that court, on November 10, 1982, Cooper and Williams filed a motion for summary judgment, averring that Thomas’s amendment substituting them for fictitious defendants number “28” and “B”, respectively, was barred by the one-year statute of limitations. The trial court subsequently denied their motion.

On April 21, 1983, Thomas again amended his complaint so as to include counts VII and VIII. They read in pertinent part:

“Count VII .
“3. The defendant Paul Cooper was Vice-President of Jim Dandy Company on and before the 28th day of September, 1979. The defendant Larry Williams was Safety Director of the Jim Dandy Company on and before the 28th day of September, 1979. The defendant Larry Brand was Personnel Director of the Jim Dandy Company on and before the 28th day of September, 1979.
“4. All the defendants as described in Paragraph Three of Count Seven of Plaintiff’s complaint on and before the 28th day of September, 1979 knew or with the exercise of reasonable care, should have known that a ‘guard around the sprocket’ of the SURG HOPPER MACHINE had been removed by maintenance some several days prior to the 28th day of September, 1979. The defendants’ SURG HOPPER MACHINE operating in the unguarded condition created a dangerous hazard to the safety of the plaintiff. Defendants negligently failed to warn the Plaintiff of the risk, hazard and danger.”

“Count VIII

“2. The defendants wantonly caused or wantonly allowed the SURG HOPPER MACHINE to be operated in its unguarded condition. Defendants wantonly failed to warn the plaintiff of the risk, hazard and danger as aforesaid. As a proximate result of the defendants’ wantonness as aforesaid, plaintiff, R.C. Thomas, Jr., received the following wanton injuries....”

On May 27, 1983, Cooper and Williams filed a motion for reconsideration of the denial of their motion for summary judgment. On the same day, Brand filed a motion for summary judgment on the ground that Thomas’s amendments were barred by the statute of limitations. The trial court denied both motions on December 19, 1983.

On December 29, 1983, Cooper, Williams, and Brand filed a petition for permission to appeal pursuant to A.R.A.P. 5. The petition was granted by this Court on January 24, 1984.

The first issue raised on appeal is whether the use of the word “defendants” in the body, of Thomas’s original complaint is sufficient to state a cause of action against fictitious defendants “B”, “27”, and “28” as described in the caption of the complaint, in accordance with A.R.Civ.P. 9(h), so that the amendment to the complaint naming Cooper, Williams, and Brand will relate back to the original complaint in accordance with A.R.Civ.P. 15(c).

We may summarily dispose of this issue by turning to two recent decisions of this Court. In both, Harvell v. Ireland Electric Company, 444 So.2d 852 (Ala.1984), and Moorer v. Doster Construction Company, Inc., 442 So.2d 97 (Ala.1983), this Court held that the use of the phrase “the defendants” in each paragraph of the body of the plaintiff’s complaint was sufficient to incorporate by reference all the named defendants and all the fictitious defendants who were described in the caption of the complaint. See also, Denney v. Serio, 446 So.2d 7 (Ala.1984). In this case, Thomas’s original complaint avers that the “defendants negligently failed to warn the plaintiff of the hazard and danger.” In light of the foregoing authority, we hold that Thomas’s original complaint was sufficient to state a cause of action against fictitious defendants “B”, “27”, and “28.” We also hold that the trial court could have found Thomas was ignorant of the proper identification of the fictitious defendants. Accordingly, Thomas’s amended complaint substituting Cooper, Williams, and Brand for fictitious defendants “B”, “27”, and “28” relates back to the original pleading in accordance with A.R.Civ.P. 15(c).

The second issue presented for our review concerns whether counts VII and VIII, included in Thomas’s amended complaint, likewise relate back to the original pleading in accordance with A.R.Civ.P. 15(c). A.R.Civ.P. 9(h) is not intended to give plaintiffs additional time to formulate new theories of liability beyond the statutorily prescribed period. Columbia Engineering Int’l, Ltd. v. Espey, 429 So.2d 955, 959 (Ala.1983). Thus, where the plaintiff attempts through amendment to aver new facts or a new cause of action, beyond the statute of limitations period, which were not included in the original complaint, the amendment is barred. See Hinton v. Hobbs, 349 So.2d 28 (Ala.1977). However, where the amendment is merely a more definite statement, or refinement, of a cause of action set out in the original complaint, the amendment relates back to the original complaint in accordance with A.R.Civ.P. 15(c). See Denney v. Serio, 446 So.2d 7 (Ala.1984).

We find that Count VII in Thomas’s amended complaint, states no new cause of action, but rather merely rearticulates with more specificity the allegation against the defendants contained in paragraph 5(c) of count I in the original complaint; more precisely that the defendants negligently failed to warn Thomas of the danger and hazard created by a Surg Hopper Machine which lacked a safety guard. Moreover, Count VIII relates back, since that count alleges wantonness that arises out of the same transaction. Employers Casualty Co. v. Hagendorfer, 393 So.2d 999 (Ala.1981); Bracy v. Sippial Electric Co., 379 So.2d 582 (Ala.1980).

AFFIRMED.

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

      . Section 6-2-34, Code 1975, provides a six-year statute of limitations for trespass resulting from wantonness; nevertheless, where, as here, the wantonness constitutes trespass on the case, the action is governed by the one-year statute of limitations set out in § 6-2-39(a)(5), Code 1975. See Sasser v. Dixon, 290 Ala. 17, 273 So.2d 182 (1973).


author: PER CURIAM.

text:
    ALABAMA HIGH SCHOOL ATHLETIC ASSOCIATION v. William Bryant MEDDERS, a minor suing By and Through his next friend, Cleo E. MEDDERS. Ex parte ALABAMA HIGH SCHOOL ATHLETIC ASSOCIATION. (In re William Bryant MEDDERS, a minor, etc. v. ALABAMA HIGH SCHOOL ATHLETIC ASSOCIATION).
    83-1160, 83-1161.
    Supreme Court of Alabama.
    Aug. 29, 1984.
    Oakley Melton, Jr., and James E. Williams of Melton & Espy, Montgomery, for appellant and petitioner.

      Jack W. Meigs of Heliums & Meigs, Cen-treville, for appellee and respondent.
    Donald B. Sweeney, Jr., of Rives & Peterson, Birmingham, for amicus curiae Homewood City Bd. of Educ.
   PER CURIAM.

This appeal and the related petition arise from a decision rendered by the trial court in which the plaintiff, William Bryant Med-ders, was declared eligible to play in the 1984-85 high school football season. We reverse.

The trial judge made the following findings of fact:

“1. Plaintiff, William Bryant Med-ders, a minor, was born on September 24, 1966, and is currently a student at Bibb County High School in Centreville, Alabama, and will enter the 12th grade during the school year 1984-85.
“2. Plaintiff entered the ninth grade at Bibb County High School in August 1981. Plaintiff was voluntarily held back and repeated the eighth grade in 1980-81, although he had successfully completed and passed all of his eighth grade subjects during the school year 1979-80 and was thereupon eligible to advance to the ninth grade. Plaintiff participated in junior high interscholastic athletics during the school year 1979-80, his first year in eighth grade, but did not participate in 1980-81 because he was ineligible under the rules of the Alabama High School Athletic Association since he voluntarily elected to repeat the eighth grade.
“3. Plaintiff participated in varsity athletics at Bibb County High School during the school years of 1981-82; 1982-83; 1983-84, and not before.
“4. The defendant, by its 3rd District Athletic Board, ruled the plaintiff ineligible to participate in inter-school athletics during his senior year at Bibb County High School which would be academic year 1984-85.
“5. The decision of the 3rd District Athletic Board was appealed to the defendant’s Central Board of Control, and a hearing was held on April 2, 1984, at which hearing the Central Board upheld the District Board’s ruling.
“6. The defendant’s decision was based upon its By-laws, specifically Rule I, Section 4, which reads as follows:
“ ‘Section 4. (a) No pupil shall take part in inter-high school athletic contests for more than six years or more than six seasons in any one sport, after he enters Junior I Class or more than three years or three seasons after he enters Senior I Class. A player who participated in any part of any game in any sport shall be considered as having played one year in that sport.
“ ‘(b) A pupil becomes ineligible when he has attended any junior or senior high school eight semesters after completing the eighth grade or entering the ninth grade. He can be eligible only four fall semesters and four spring semesters after completing the eighth grade or entering the ninth grade. The last two (7 and 8 of a four year high, 5 and 6 of a senior high, etc.,) semesters must be consecutive. (Attendance of 15 days of any semester shall be regarded as a “semester.”)
“ ‘NOTE — For athletic purposes a student is classified in the 9th grade when he enrolls in three subjects that are of 9th grade level or above; also, when an 8th grade student establishes eligibility for a succeeding year he shall be classified in the 9th grade.
“ ‘A pupil is considered a Senior High School pupil when he has acquired credit on school records for two and one-half or more units.’ Handbook, Alabama High School Athletic Association, Rule I, Section 4, page 69 (1979-80 edition).’ ”
“The parties stipulated and agreed that for the purposes of this dispute the only part of the foregoing rule [that] would be considered is that portion thereof set forth as follows:
“ ‘(b) A pupil becomes ineligible when he has attended any junior or senior high school eight semesters after completing the eighth grade or entering the ninth grade. He can be eligible only four fall semesters and four spring semesters after completing the eighth grade or entering the ninth grade.’ ”

The Alabama High School Athletic Association (AHSAA) is an association of high schools in the state which is “primarily concerned with proper controls and strict regulations of athletic activities” of member schools. See, Handbook, Alabama High School Athletic Association (1979-1980, p. 9.). As we recently stated, “the burden on the challenger to overcome the presumption favoring the association’s absolute authority in the conduct of its own affairs is a heavy one.” Alabama High School Athletic Association v. Rose, 446 So.2d 1 (Ala.1984). Thus, normally a court in this state has no jurisdiction to resolve disputes regarding eligibility under the rules of the AHSAA. The association itself, as the autonomous regulator of high school athletic activities, is the proper authority for resolving such disputes.

We delineated in Scott v. Kilpatrick, 286 Ala. 129, 237 So.2d 652 (1970), the very narrow grounds on which a court should assume jurisdiction in a case such as this:

“If officials of a school desire to associate with other schools and prescribe conditions of eligibility for students who are to become members of the school’s athletic teams, and the member schools vest final enforcement of the association’s rules in boards of control, then a court should not interfere in such internal operation of the affairs of the association. See Tennessee Secondary School Athletic Association, et al. v. Cox, et al., Tenn., [221 Tenn. 164] 425 S.W.2d 597 [1968]; Morrison v. Roberts, 183 Okl. 359, 82 P.2d 1023 [1938]; Robinson v. Illinois High School Association, 45 Ill. App.2d 277, 195 N.E.2d 38 [1963]; State ex rel. Ohio High School Athletic Association v. Judges of the Court of Common Pleas, 173 Ohio St. 239, 181 N.E.2d 261 [1962]; Sult v. Gilbert, 148 Fla. 31, 3 So.2d 729 [1941]; State ex rel. Indiana High School Athletic Association v. Lawrence Circuit Court, 240 Ind. 114, 162 N.E.2d 250 [1959]; Starkey v. Board of Education of Davis County School District, 14 Utah 2d 227, 381 P.2d 718 [1963].
“Of course, if the acts of an association are the result of fraud, lack of jurisdiction, collusion, or arbitrariness, the courts will intervene to protect an injured [party’s] rights. See 6 Am.Jur.2d., Associations and Clubs, Sec. 27, p. 453.”

286 Ala. at 132-33, 237 So.2d at 655.

More recently, in Alabama High School Athletic Association v. Rose, supra, we elaborated on the rule announced in Kilpa-trick and again stressed the limited circumstances under which a court may review the actions of the AHSAA. There, the trial court, after a hearing on a complaint alleging fraud and collusion, had made an express finding of collusion on the part of the director of the AHSAA and members of the 6th District. Jurisdiction of the court to intervene was affirmed only because of the express finding of fraud and collusion. The Court stated:

“Likewise, as Kilpatrick and Kubiszyn v. Alabama High School Athletic Ass’n, 374 So.2d 256 (Ala.1979), indicate, the burden on the challenger to overcome the presumption favoring the Association’s absolute authority in the conduct of its own affairs is a heavy one. We reaffirm the Kilpatrick test to the effect that the Court's jurisdiction in such matters is invoked when, and only when, the averments of fraud, collusion, or arbitrariness are supported by clear and convincing evidence; and the trial court’s acceptance of jurisdiction will be affirmed only where its order makes an unequivocal factual finding of one or more of those narrow, restrictive grounds, founded upon clear and convincing evidence.”

446 So.2d at 5.

This student has not carried the burden set out in Rose. He argues, and we agree, that the rule is susceptible of two interpretations, as the trial court observed. However, the evidence showed that it has been in effect for 35 years and has been interpreted the same way for that period of time. This falls far short of fraud, collusion, or arbitrariness — the prerequisites for court intervention in these matters. In fact, the trial court expressly found that the AHSAA did not act fraudulently or capriciously. That court having so found, the complaint should have been dismissed, since ambiguity in the rule of the AHSAA does not of itself permit court intervention.

We agree, as the Association argues, that the so-called “eight-semester rule” has a laudable purpose:

“The eight semester rule is for the purpose of keeping people from redshirt-ing students in the eighth grade. At the eighth grade level people begin to determine the future of the athletic ability of students. And the eight semester rule was put in there to prohibit holding kids back in the eighth grade so that they’d have another year of maturity and therefore would be able to perform better when they are older.”

In this case, the student repeated the eighth grade in 1980-81, after successfully academically completing such grade in the 1979-80 school year. He passed all the eighth grade subjects the first year he took them and took the same subjects the next year and, of course, again passed them. This clearly violated the eight-semester rule as it has been applied by the AHSAA for 35 years. Therefore, the trial court should have dismissed the complaint.

An amicus curiae brief has been filed on behalf of another student, Bryan Hendrix, who has also been declared ineligible under the same rule involved here. He too was “held back” voluntarily and repeated the eighth grade, as did Medders. Therefore, the AHSAA was authorized to declare him ineligible under the eight-semester rule and, absent clear and convincing evidence' of fraud, collusion, or arbitrariness, which was not produced, there is no judicial authority to intervene.

In light of our decision as to the appeal in Case 83-1160, we dismiss the petition for writ of mandamus as moot.

83-1160, REVERSED AND RENDERED.

83-1161, PETITION DISMISSED.

All the Justices concur.


author: JONES, Justice.

text:
    Paul STAHLMAN and Jim Acreman v. David W. GRIFFITH.
    82-896.
    Supreme Court of Alabama.
    Aug. 31, 1984.

      John F. Kizer, Jr., Birmingham, for appellants.
    William L. Utsey and William R. Christopher, Butler, for appellee.
   JONES, Justice.

This cause was initiated on October 21, 1981, by Plaintiff/Appellee David W. Griffith, against Defendant Donald Watts and Defendants/Appellants Jim Acreman, and Paul Stahlman. Griffith alleged negligence and wantonness in that Defendants knowingly allowed Plaintiff to operate a 1973 model truck with an unsafe steering mechanism.

Defendant Donald Watts answered Plaintiffs complaint and filed a cross-claim against Defendants Acreman and Stahl-man. Defendants Acreman and Stahlman filed an answer to the initial complaint and to Watt’s cross-claim. Acreman and Stahl-man next cross-claimed against Watts.

The jury returned a verdict in favor of the Plaintiff against two of the Defendants, Acreman and Stahlman, and assessed damages at $100,000. Additionally, the jury found in favor of Defendant Donald Watts against cross-claimants Acreman and Stahlman.

From the order denying motions for a new trial, Stahlman and Acreman appeal. We reverse.

FACTS

Because of our remand of this cause for a new trial, we will not give a detailed account of the evidence; rather, we deem it appropriate to recite only so many of the facts, by way of overview, as relate to the credibility-of-the-witness issue, on which we base our reversal.

Plaintiff David W. Griffith is a 25-year-old sawmill worker. On October 22, 1980, the day of the accident here in question, Plaintiff was employed by Empire Gas Company of Butler, Alabama, as a deliveryman. Empire Gas maintained, for its deliveries, a 1979 Chevrolet truck. The company also used a 1973 Chevrolet truck as a backup vehicle.

According to Plaintiff, on October 22, 1980, he was instructed by his immediate supervisor, Donald Watts, to make a delivery to Livingston, Alabama. Because of mechanical problems, the only vehicle then available was the 1973 truck, which, as Plaintiff was aware, had experienced earlier mechanical malfunctions. Upon expressing to Watts his reservations about using the 1973 vehicle, Plaintiff was told by Watts “to make the delivery or lose your job.”

Approaching a bridge on his return trip to Butler, Plaintiff’s vehicle hit a rough area in the road and went out of control, causing Plaintiff personal injuries.

Donald Watts testified that, on October 22, 1980, before Plaintiff made the trip involved here, upon hearing from Plaintiff about the problems with the 1973 Chevrolet, he contacted his supervisor, Paul Stahl-man, who told him to “either drive it or get someone else that will.” Watts also testified that, prior to Plaintiff’s accident on October 22, 1980, he had spoken to Empire’s regional sales manager, Jim Acre-man, who told him to see Paul Stahlman about the truck’s condition. Jim Acre-man’s responsibilities included assisting each retail manager in sales, picking up motor fuel accounts, and various other aspects of .selling propane gas, excluding domestic accounts.

ISSUE

Multiple issues are presented for our review. We need only to address, however, the single issue on which we base our order of reversal: Did the trial judge err in excluding evidence proffered by the Defendants on cross-examination that witness Watts had been convicted for the misdemeanor offense of theft in the second degree, as a crime involving moral turpitude? We hold that he did.

DECISION

During the course of cross-examination of the Defendant Donald Watts, Appellants’ lawyer attempted to elicit from the witness evidence pertaining to Watt’s prior termination of employment with Empire Gas Company of Butler, Alabama, and evidence of Watts’s plea of guilty to “attempted” theft in the second degree. Pertinent portions of this testimony read as follows:

“MR. KISER [for the Defendants]:
“Q. ... Mr. Watts, what was the occasion for you leaving ... Empire Gas, Inc., of Butler?
“MR. THOMPSON [for the Plaintiff]:
“Judge, I object to that. That’s immaterial and irrelevant and has no bearing whatsoever.
“THE COURT [After excusing the jury]:
“Let me hear your argument on this. You’ll want to ask him why he was terminated. There was an objection made. We’re outside the presence of the Jury.
“MR. KISER:
“Judge, what we’re getting into is the guilty plea made by Mr. Watts to ... [attempted theft of property in the 2nd degree....
“MR. UTSEY [for the Plaintiff]:
“Is that a misdemeanor?
“MR. TRAEGER [for the Defendants]: Involving moral turpitude.
“MR. KISER:
“It does not matter, misdemeanor or felony, you can have both involving crimes of moral turpitude. It’s our position grand larceny, petty larceny are crimes involving moral turpitude. And we have the right to examine Mr. Watts regarding that to impeach his credibility to the Jury.
“THE COURT:
“I am not going to allow you to show the conviction as a crime of moral turpitude, in that it is my opinion that an attempt does not fall within the statute of a crime involving moral turpitude, when it’s an attempted theft of property in the second degree, which is a misdemeanor theft. I think it’s clear it would be moral turpitude if it was a theft. It’s my opinion a mere attempt does not involve moral turpitude.”

Appellants argue: 1) A witness may be impeached by proving his conviction of a crime involving moral turpitude. Code 1975, § 12-21-162; 2) “Attempted” theft of property in the second degree is a misdemeanor involving moral turpitude, and thus the trial court erred in refusing to allow them to introduce evidence of witness Watts’s plea of guilty to the crime of “attempted” theft of property in the second degree in order to impeach his testimony.

In McElroy’s Alabama Evidence, § 145.-01 et seq. (3d ed. C. Gamble 1977), we find the following pertinent language:

“(1) General statutory rule “We observed earlier that a witness is impeached by showing his general bad reputation as a whole or for truth and veracity and that specific bad acts of the witness are excluded for impeachment purposes. An exception to this latter rule, however, is that an opponent can impeach his adversary’s witness by proving his former conviction of a crime involving moral turpitude. This ground of impeachment is explicitly given by statute.
“(7) Moral Turpitude defined
“The Supreme Court of Alabama has defined the term ‘moral turpitude’ on many occasions and the following are the most commonly found definitions. Moral turpitude signifies an inherent quality of baseness, vileness and depravity. It is immoral in itself, regardless of the fact that it is punished by law. Therefore, an offense for conviction of which a witness’ credibility is lessened must be mala in se and not mala prohibitum.
“In commenting upon the advent of the test of moral turpitude and its difficulty of application, an authority in the area of evidence has observed: ‘Thus does the serpent of uncertainty crawl into the Eden of trial administration.’ Most states using the rule have established a catalog of crimes which involve moral turpitude and the prior conviction of which is admissible for impeachment purposes. ... With respect to a crime whose quality as containing moral turpitude is in question, and about which the appellate courts have not yet spoken, it is readily apparent that any appellate court decision will turn upon the moral standards of the judges who decide the question.
“(8) Whether the conviction offered for impeachment is a felony or misdemeanor is not the test
“Any conclusion that all felonies involve moral turpitude, while all misdemeanors do not, must be regarded as founded in error. A determination of whether the conviction offered for impeachment purposes is for a felony or misdemeanor does not necessarily answer the question of whether the crime for which the witness was convicted involves moral turpitude.
“While most felonies do involve moral turpitude there are some which do not. For example, the felony of grand larceny has been held to involve moral turpitude while that of distilling whiskey has not.
“On the other hand some misdemeanors involve moral turpitude while others do not. The misdemeanor of petit larceny has been held to involve moral turpitude while that of assault and battery has been declared not to carry the stigma of involving moral turpitude.” (Emphasis added. Footnotes omitted.)

For additional cases holding that petit larceny involves moral turpitude, see Caldwell v. State, 282 Ala. 713, 213 So.2d 919 (1968); Payne v. State, 261 Ala. 397, 74 So.2d 630 (1954); McFarling v. State, 35 Ala.App. 191, 45 So.2d 322 (1950); Hutchens v. State, 207 Ala. 126, 92 So. 409 (1922).

Larceny (now theft) is the felonious taking and carrying away of the personal property of another with the intent on the part of the taker to deprive the owner of possession thereof, or to convert it to the use of the taker. Wilcox v. State, 401 So.2d 789 (Ala.Cr.App.1980). Theft of property in the second degree is a Class C felony. Code 1975, § 13A-8-4 (1982 Repl. Vol.). “Attempted” theft of property in the second degree is a Class A misdemean- or. Code 1975, § 13A-4-2(d)(4) (1982 Repl. Vol.). Stated succinctly, the issue for our determination is whether “attempted” theft of property in the second degree is a crime involving moral turpitude; if so, the trial court’s refusal to admit the proffered evidence constituted reversible error. We think that it is.

Given the settled law that a conviction for the misdemeanor offense of theft is a crime involving moral turpitude, we are unable to perceive a material difference, for impeachment purposes, where the conviction is for the lesser offense of at tempted, theft. It is not the class of the crime, as that crime is legally defined, but its nature and character that form the basis for the test of its admissibility. The moral baseness of the act is not lessened by the fact that the theft was attempted as opposed to being completed. The element of intent is present to the same degree in both.

REVERSED AND REMANDED.

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

      . Defendant Donald Watts is not a party to this appeal.


text:
    Billie SHIPP, as Administrator of the Estate of Johnny Wayne Johnson, Sr., Deceased v. WARRIOR & GULF NAVIGATION COMPANY, a corp., et al. Charles E. OSBURN, Sr., as Administrator of the Estate of Charles E. Osburn, Jr., Deceased v. WARRIOR & GULF NAVIGATION COMPANY, a corp., et al.
    83-456, 83-457.
    Supreme Court of Alabama.
    Aug. 31, 1984.
    James A. Yance and Jay A. York of Cunningham, Bounds, Yance, Crowder & Brown, Mobile, for appellants.
    Broox G. Holmes and Norman E. Wal-drop, Jr., of Armbrecht, Jackson, DeMouy, Crowe, Holmes & Reeves, Mobile, for ap-pellees.
   FAULKNER, Justice.

On June 16, 1980, Johnny Wayne Johnson and Charles Osburn, Jr. drowned in the Tombigbee River. The administrators of their estates each filed suit against Warrior & Gulf Navigation Company based on Alabama’s Wrongful Death Statute and the general maritime law. Summary judgments were entered in favor of the defendants in each case. Both plaintiffs appeal and their cases have been consolidated for our consideration. We affirm.

The general issue presented concerns whether the trial court properly entered summary judgment. Summary judgment is proper only where the evidence of record, when viewed in its most favorable light, presents no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law. A.R.Civ.P. 56(c); Ragland v. Alabama Power Co., 366 So.2d 1097, 1099 (Ala.1978).

The dispositive facts are as follows: On of June 16, 1980, the Warrior & Gulf Navigation Company tug Seminole was proceeding south on the Tombigbee River, pushing six coal hopper barges, made up two abreast and three deep. At approximately 10:15 A.M., one or two of the barges ran aground on a sandbar. The sandbar is located near what is popularly-known as “Old Lock # 3.”

The tug’s crew began work to free the flotilla. In order to accomplish this, the power of the tug was used to swing the tow from side to side and back and forth until the grounded barge or barges could be freed and backed off the sandbar. One of the decedents, Charles Osburn, Jr., had come to the river that day with his father, his brother, and a friend. The Osburns spent the morning fishing off the bank downstream from the sandbar. Around 11:30 A.M., the Osburns retired to their truck to eat lunch. At that time, the tug and barges were still bottomed on the sandbar.

After lunch, the Osburn boys met their father on the bank of the river and asked permission to go approximately one hundred yards upstream in order to visit some friends, Sherri and Johnny Johnson, who were camping at a site adjacent to the sandbar. By this time, the Seminole and its barges had cleared the sandbar and passed the Osburns, and was proceeding downriver.

Mr. Osburn Sr. gave his permission for the boys to go visit the Johnson camp. Mr. Osburn remained on the bank fishing while the boys proceeded upriver to the area of the sandbar, where they met the Johnsons.

Shortly after arriving at the Johnson camp, Charles Osburn, Jr. and his brother, Jerry, began to wade out on the sandbar. The water surface appeared to be calm and normal. By all accounts, when Charles and Jerry entered the water, the Seminole was rounding a bend in the river some 400 to 500 yards south of the sandbar. Charles went out into the river to a point where the water was over his head and began experiencing difficulty staying afloat. Jerry, who was approximately seven feet behind Charles, testified in deposition that he felt the bottom of the sandbar caving in beneath him, forcing him into deeper water. Jerry was able to get back to shallow water; however, his brother was not so fortunate.

Charles began calling for help. While Jerry was able to grab Charles’s hand momentarily, he was unable to hold onto him. Johnny Wayne'Johnson, seeing Charles in distress, told Jerry to return to the shore. Johnson then attempted to go to Charles’s aid. Moments later, Mrs. Johnson noticed that her husband was also in trouble, when he began panicking and yelling for help.

In an effort to rescue them both, Mrs. Johnson also swam to the scene from the bank of the river. She stated that because the water was “pulling,” it was difficult to swim. Nevertheless, she attempted to grab her husband, but Charles, who was panicking, jumped on her, forcing her under the water. When she resurfaced, both Charles and her husband had disappeared below the surface.

Mrs. Johnson attempted to swim back to shore, but was unable, due to a strong current. Ultimately, she was rescued by another individual with a boat.

The administrators each alleged that Warrior & Gulf negligently operated the Seminole in allowing the vessel to run aground on the sandbar near “Old Lock # 3.” The trial court entered summary judgment in favor of the defendant in each suit.

The appellants argue that the evidence of record indicates that the Seminole and its crew breached a duty owed to swimmers in the area to leave the sandbar in a safe condition, or in the alternative to warn swimmers of a lingering undertow created by the tug. To the contrary, under the circumstances of this case, we find that as a matter of law, the crew of the Seminole breached no duty owed the decedents. Accordingly, the defendants are entitled to a judgment as a matter of law.

The appellants rely heavily upon the ease of Price v. United States, 530 F.Supp. 1010 (S.D.Miss.1981), to support their argument. We find that case distinguishable from the case at bar. In Price, the United States Army Corps of- Engineers contracted to oversee the repair of a seawall adjacent to a public beach. The extensive dredging necessary to complete this work was contemplated by the contract, which required that all “borrow areas” along the coastline be marked with warning signs. The contract further specified the size, spacing, and wording of the warning signs, as well as which direction they would face. The trial court found that the Corps of Engineers had breached its duty to warn swimmers of the dredged areas by posting inadequate notice.

In contrast to Price, the tug owner or operators in the case at bar never assumed the duty to warn all bystanders on the banks of the Tombigbee of possible undercurrents created by the tug. Neither does the law impose such a duty upon the Seminole by statute, regulation, or custom.

This is not to say that a tug operator never has the duty to warn swimmers in the area of dangerous conditions. See, e.g., In the Matter of Consolidation Coal Company, 296 F.Supp. 837 (W.D.Pa.1968). In this case, however, it is undisputed that by the time the Osburn boys entered the water, the Seminole was no longer in the area. In fact, the tug had passed the Os-burn camp before the boys ever asked their father for permission to visit the Johnson camp.

Having found that the crew of the Seminole breached no duty owed the Osburns or the Johnsons, we conclude that no genuine issue of material fact was presented. Accordingly, the judgment of the trial court is due to be, and it is hereby, affirmed.

AFFIRMED.

ALMON, EMBRY and ADAMS, JJ., concur.

TORBERT, C.J., concurs in the result.


author:
PER CURIAM. TORBERT, Chief Justice
      ALMON, Justice

text:
    Bill L. CHAVERS and Diana Z. Chavers v. NATIONAL SECURITY FIRE AND CASUALTY COMPANY, an Alabama Corporation.
    82-1281.
    Supreme Court of Alabama.
    Sept. 7, 1984.

      Benjamin H. Kilborn of Kilborn & Red-ditt, Mobile, for appellants.
    Alton R. Brown, Jr., E.J. Saad and Edward L. Lasseter, Jr., of Brown, Hudgens, Richardson, Whitfield & Gillion, Mobile, for appellee.
   PER CURIAM.

Bill and Diana Chavers appeal from a summary judgment entered against them in favor of National Security Fire and Casualty Company. The trial court found the Chaverses’ claim of bad faith refusal to pay was barred by the doctrine of res judicata and “other applicable laws of the State of Alabama.” We reverse.

The facts of this case were adequately set out by this court in Chavers v. National Security Fire and Casualty Co., 405 So.2d 1 (Ala.1981). On remand, after further discovery, the trial court entered summary judgment on 14 June 1983. The Chaverses appeal.

National Security contends the Chavers-es knew or should have known of the existence of their bad faith claim as of 5 March 1976, the date the Chaverses sued National Security for payment on their insurance policy. Therefore, National Security argues, the Chaverses’ separate bad faith action filed 11 April 1977, is barred both by res judicata and by the statute of limitations. See § 6-2-39(a)(5), Code 1975; Dumas v. Southern Guaranty Insurance Co., 408 So.2d 86 (Ala.1981).

The doctrine of res judicata bars subsequent claims which involve the identical parties, facts, and subject matter litigated, or those which could have been litigated, in an earlier lawsuit. Hester v. City of Birmingham, 402 So.2d 930, 931 (Ala.1981). A cause of action for bad faith refusal to honor an insurance claim accrues upon the event of the bad faith refusal, or upon the knowledge of facts which would reasonably lead the insured to a discovery of the bad faith refusal. Safeco v. Sims, 435 So.2d 1219 (Ala.1983). The accrual of a claim for bad faith is a question of fact to be determined by the circumstances of each case. Id., at 1222.

In the case at bar, the record contains conflicting evidence concerning whether the Chaverses knew or should have known of National Security’s bad faith. For example, Mr. Chavers testified he first learned during the trial of the insurance claim that the sole basis for National Security’s refusal to pay was the uncorroborated hearsay testimony of a convicted felon. Thus, the trial court erred in entering summary judgment against the Chaverses based on res judicata.

Similarly, disputed issues of fact concerning the discovery of bad faith preclude finding this action is barred, as a matter of law, by the statute of limitations. Section 6-2-3, Code 1975; Sexton v. Liberty National Life Insurance Company, 405 So.2d 18 (Ala.1981). Accordingly, the judgment is due to be, and it is hereby, reversed and remanded for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

FAULKNER, JONES, SHORES, EM-BRY, BEATTY and ADAMS, JJ., concur.

TORBERT, C.J., and MADDOX and AL-MON, JJ., dissent.

TORBERT, Chief Justice

(dissenting).

I disagree with the majority opinion. Based on my dissent in Chavers v. National Security Fire & Casualty Co., 405 So.2d 1 (Ala.1981), I would sustain the summary judgment in favor of the defendant.

ALMON, Justice

(dissenting).

I disagree with the majority opinion. Based on my dissent in Chavers v. National Security Fire & Casualty Co., 405 So.2d 1 (Ala.1981), I would sustain the summary judgment in favor of the defendant.


author: JONES, Justice. TORBERT, Chief Justice MADDOX, Justice

text:
    E. Roy CHANCE v. DALLAS COUNTY, ALABAMA, et al.
    83-532.
    Supreme Court of Alabama.
    Sept. 7, 1984.

      John E. Pilcher of Pilcher & Pilcher, Selma, for appellant.
    J. Garrison Thompson of Pitts, Pitts & Thompson and Blackwell & Keith, Selma, for appellees.
   JONES, Justice.

Plaintiff/Appellant E. Roy Chance sued Defendants/Appellees, Dallas County and two of its employees, Cecil Strickland and Tommy Craig, alleging personal injuries resulting from Defendants’ negligence and/or wantonness.

Defendants answered Plaintiffs complaint, asserting: 1) Plaintiff was guilty of contributory negligence; 2) Plaintiffs injuries, if any, resulted from the negligence of his employer, Norman W. Copeland, as opposed to that of Defendants/Appellees; 3) Plaintiff assumed the risk of injury through his employment; and 4) Plaintiffs employer was an independent contractor who, through his repair contract with the County, assumed the risk of any injury inherent therein.

The trial court entered judgment upon a jury verdict in favor of Defendants. Plaintiff appeals from the denial of his motion for a new trial. We reverse and remand.

FACTS

Chance’s employer, Norman W. Copeland, a self-employed welder, was hired by Cecil Strickland, Dallas County Shop Foreman, to perform welding repairs on a diesel fuel tank owned by the County. The diesel tank was located inside a metal storage shed, which also contained a gasoline tank. Both storage tanks were located underground, approximately twenty to twenty-five feet apart.

Strickland informed Copeland that he (Strickland) would clean out the tank prior to Copeland’s commencing his welding. Thereafter, Strickland personally cleaned the tank of debris by using approximately one gallon of gasoline as a cleaning solvent. Strickland did not notify Copeland, or anyone else, that the diesel tank had been cleaned with gasoline.

Subsequently, during a personal inspection of the diesel tank, Copeland smelled gasoline odors within the metal storage shed. According to Copeland, upon further inquiry, he was informed by Tommy Craig, the County’s office clerk and parts manager, that there had never been any gasoline in the diesel tank, and that the gasoline odor came from the gasoline tank situated within the metal storage shed.

When Copeland and Chance arrived at the tank, Chance also detected gasoline fumes. Chance inquired of Copeland concerning the odor, and was told by Copeland of his conversations with Tommy Craig. In an effort to further check the diesel tank for the presence of gasoline, Copeland and Chance placed a dry mop inside the tank. They removed the mop and attempted, unsuccessfully, to ignite it. At that point, the men commenced welding on the tank. The tank exploded, causing injuries to the Plaintiff.

ISSUES

Appellant frames the two issues presented thusly: whether the trial court erred 1) “in charging the jury that an employee of an independent contractor performing dangerous work, however skillfully performed, assumes the risk occasioned by the performance of such work, and, therefore, may not recover for any resulting injuries, even if wantonly inflicted”; and 2) “in charging the jury that assumption of the risk is a valid defense to wanton conduct.”

In support of his alleged error No. 1, Appellant directs our attention to the following portion of the trial judge’s jury instructions:

“Now to go back and explain to you what we mean by independent contractor and assumption of risk in connection with what is intrinsically dangerous. Now let me use an example that pops into my mind. I know ... many of you probably saw that old movie many years ago about an oil well fire. These trouble shooters that went all over the world to put these fires out. Now they were specialists in their field. Now John Wayne, I think, was the hero of the movie. They would go out and be hired by an owner of an oil well to put out a fire where the well had caught on fire. It was the type of thing that an ordinary person couldn’t do. Now they hired that man and he took his crew out there. He was an independent contractor. Everybody knew that that was a dangerous thing to do. So under ordinary circumstances, that is an intrinsically dangerous thing and there would be liability on the part of the owner of the oil well for any injuries sustained by someone.
“However, when you’ve got someone who’s an expert in that field and he knows that going out there to that fire is dangerous and he knows that he runs the risk of life and limb by attempting to put that fire out, and yet knowing of that danger, being fully aware of it, he goes forward and attempts to put the fire out and is injured, there is no liability in that case upon the owner of the property because knowing of the danger he assumed the risk.”

Additionally, Appellant assigns as error the action of the trial judge in giving Defendants’ Charge 37:

“If you are reasonably satisfied from the evidence that the Plaintiff assumed the risk, then the Plaintiff cannot recover for any wantonness of the Defendant.”

■Plaintiff timely objected to both the “John Wayne” story and Charge # 37.

CONTENTIONS OF THE PARTIES

1) The ‘‘John Wayne” Story

Appellant: Notwithstanding the correctness of its initial ruling, permitting the factual issue of Plaintiff’s knowledge of the dangerous condition to go to the jury, the trial judge’s subsequent “John Wayne” instruction, says the Appellant, was the virtual equivalent of informing the jury that, as a matter of law, the Plaintiff assumed the risk of injury by undertaking the welding job. It is not the use of the “John Wayne” hypothetical, as such, that meets with Appellant’s disapproval; rather, says the Appellant, the trial court’s dramatization of such an extreme example of an admitted assumption of risk situation unfairly influenced the jury to equate the “John Wayne” story with the instant ease, to the exclusion of the jury’s factfinding prerogative with respect to the “hidden danger” principle.

Appellees: The trial judge clearly preserved to the jury its factfinding options, say the Appellees, pointing to portions of his jury instructions immediately following the “John Wayne” story:

“Now you’re getting back into what I was talking about in the three elements of assuming the risk. There must be a danger that he’s aware of and he goes ahead and does it anyway. So either you’ve got to be aware of it or by the exercise of reasonable diligence, should have been aware of it. That’s what we’re talking about here_ [Mr. Chance, is saying] the county didn’t warn [him] of the danger he was going into; they knew it was there and should have warned him. Now that’s [his] contention.
“[The defendants’] contention is that we, on the other hand, ... told him to come out there and do this; and that’s the contentions of the parties.
“Now all I’m trying to do is tell you what the law is. I’m not telling you what you must believe and what you don’t believe, that’s up to you. I’m trying to frame it in laymen’s language to where you will see what the contentions of the parties are and be able to intelligently act on the evidence as you find it.”

2) Assumption of the Risk as a Defense to Wantonness

Appellant: After properly submitting the wanton count to the jury, contends the Appellant, the trial court erred in charging the jury that its finding that Plaintiff assumed the risk of injury (if it should so find) would preclude Plaintiff’s right of recovery. Appellant directs our attention to the following language in Blount Brothers Construction Company v. Rose, 274 Ala. 429, 437, 149 So.2d 821, 830 (1962):

“Under our decisions, wantonness of the deceased Rose is not a defense to this complaint. Nor is assumption of risk, which is in the nature of wantonness, a good defense. Foreman v. Dorsey Trailers, 256 Ala. 253, 54 So.2d 499 [1951].”

Once a jury issue is established by the evidence on the theory of wanton conduct, says Appellant, the Blount Brothers principle is equally applicable in the instant context of a premises owner/independent contractor.

Appellees:

According to Appellees, because the situation in Blount Brothers, supra, as well as in other cases cited by Appellant, did not involve a “premises owner/independent contractor” dichotomy, any “general rule” regarding assumption of the risk, as no valid defense to wanton conduct, is incompatible with the facts now at issue.

Appellees bolster their support for an “exception” to the “general rule” in the “premises owner/independent contractor” situation with the following from 41 Am. Jur.2d Independent Contractors § 28 (1968):

“As an exception to the general rule requiring the owner or occupier of premises (the contractee) to furnish a safe place of work to an independent contractor and the latter’s employees, the owner or occupier is under no duty to protect them against risks arising from or intimately connected with defects of the premises, or of machinery or appliances located thereon, which the contractor has undertaken to repair. Closely related to this exception is the rule that the owner is not liable for death or injury of an independent contractor or one of his employees resulting from dangers which the contractor, as an expert, has known, or as to which he and his employees ‘assumed the risk.’ As to contracts for such repair work, it is reasoned that the contract is sufficient in itself to impart notice of a defect, the extent of which the repairman must discover for himself »

Appellees summarize their contentions thusly:

“Mr. Copeland, the independent contractor in the case now under consideration, undertook to repair a defect in a fuel tank. That in and of itself was sufficient to put the independent contractor on notice of the possible dangerous condition from combustible fumes in the tank. This was clearly a working condition, part and parcel of the contract itself, and although dangerous, was nonetheless normal and ordinary under the circumstances. Accordingly, the independent contractor and his employee, the Plaintiff-Appellant herein, must be deemed to have assumed the risk.”

DECISION

1) The “John Wayne” Charge

We understand and appreciate Appellant’s concern with respect to this “dramatization” in which the independent contractor (the oil well fire fighter) clearly assumed the risk of injury to himself and his employees, particularly where the hypothetical contained no hint of “hidden dangers” known to the landowner, but unknown to the invitee contractor. If the trial court had concluded its charge with the telling of this story, we would not hesitate to accept this allegation of error; but it is clear from the record that the follow-up instructions were specifically designed to dispel any undue restrictions on the jury’s factfinding prerogatives regarding the respective “hidden danger” contentions of the parties. We hold that, when the charge is considered as a whole, this challenged portion of the charge does not constitute reversible error. Alabama Power Co. v. Tatum, 293 Ala. 500, 306 So.2d 251 (1975).

Moreover, we are reluctant to be hypercritical of the trial court’s use of commonplace examples in explaining abstract legal principles. Well chosen hypotheticals can become the meat and blood that en-flesh the bare bones of legal abstractions, giving life, and thus practical application, to the whole body of the trial court’s instructions to the jury. To be sure, when the trial court uses such examples, care must be taken not to cross the forbidden line that separates legal instructions from comments on the evidence. In the instant case, the trial judge trod near that line of separation by giving a classical assumption-of-the-risk-of-injury example, but avoided its encroachment by carefully preserving the jury’s factfinding prerogatives. After all, reversible error does not find its source in mere imperfection, for litigants are not entitled to a perfect trial, only a fair one.

2) Assumption of the Risk as a Defense to Wanton Conduct

If Appellees are correct in their assertions that the “premises owner/independent contractor” standard of care is different from the rule set forth in Blount Brothers (i.e., that assumption of the risk is no valid defense to wanton conduct), the judgment in this case is due to be affirmed.

In the purest sense (and the Appel-lees recognize this), the “exception” alluded to in 41 Am.Jur.2d is not an exception to the rule that assumption of the risk is not a defense to wantonness; rather, it is an exception to the general rule “governing the extent of [the owner’s] duty to furnish an independent contractor and the latter’s employees a safe place to work and to warn them of hidden dangers.”

While we do not quarrel with the statement in Am.Jur. of the general rule and the “contract for repairs” exception, we find our own case law adequate for the disposition of the issue at hand. The applicable rule is stated in Veal v. Phillips, 285 Ala. 655, 235 So.2d 799 (1970):

“[A]n owner of premises is not responsible to an independent contractor for injury from defects or dangers which the contractor knows of, or ought to know of. If the defect or danger is hidden and known to the owner, and neither known to the contractor, nor such as he ought to know, it is the duty of the owner to warn the contractor, and if he does not do this, of course, he is liable for resultant injury. Crawford Johnson & Co. v. Duffner, 279 Ala. 678, 189 So.2d 474 .....” 285 Ala. at 657-58, 235 So.2d at 802.

See, also, Armstrong v. Aetna Ins. Co., 448 So.2d 353 (Ala.1983); Hughes v. Hughes, 367 So.2d 1384 (Ala.1979); and Chrysler Corporation v. Wells, 358 So.2d 426 (Ala.1978).

Unquestionably, the trial court, in its denial of Defendants’ motion for directed verdict, properly perceived the law of the case with respect to its appropriate function in determining the legal issue of duty and left to the jury the resolution of conflicting inferences of fact. Accordingly, the trial court, and correctly so, decided the duty issue favorably to the plaintiff, subject, of course, to the jury’s resolution of certain factual issues. In other words, in submitting the case to the jury, the trial court properly ruled that, in the event the jury found from the evidence that the Defendants created or knew of the hazardous condition (i.e., the recent use of gasoline in cleaning the tank), and the Plaintiff neither knew, nor should have known, of the specific danger resulting in his subsequent injury, then the Defendants could be held liable to the Plaintiff.

The ultimate question, then, is whether the trial court, having properly perceived and applied the law with respect to the duty of a premises owner to an independent contractor and its employees, committed reversible error in charging the jury that assumption of the risk is a legal defense to wantonness? We reaffirm Blount Brothers, supra, and affirm its application to the instant case; therefore, the judgment is reversed and the cause is remanded for a new trial.

REVERSED AND REMANDED.

FAULKNER, ALMON, SHORES, EM-BRY, BEATTY and ADAMS, JJ., concur.

TORBERT, C.J., concurs specially.

MADDOX, J., dissents.

TORBERT, Chief Justice

(concurring specially).

I agree that the applicable rule concerning the duty an employer owes to an independent contractor was correctly stated in Veal v. Phillips, 285 Ala. 655, 235 So.2d 799 (1970); see also Glenn v. United States Steel Corp., 423 So.2d 152 (Ala.1982) (holding that the owner owes the same duty to the independent contractor’s employees). I also agree that assumption of risk is generally not a defense to wanton conduct. However, there is another reason for concluding that the giving of the charge concerning assumption of risk was error in this case. This reason would make it unnecessary for us to consider whether the defense of assumption of risk is a defense to a claim based on wanton conduct.

The rule in Veal and that applied in this case is stated as follows:

“[A]n owner of premises is not responsible to an independent contractor for injury from defects or dangers which the contractor knows of, or ought to know of. If the defect or danger is hidden and known to the owner, and neither known to the contractor, nor such as he ought to know, it is the duty of the owner to warn the contractor and if he does not do this, of course, he is liable for resultant injury. Crawford Johnson & Co. v. Duffner, 279 Ala. 678, 189 So.2d 474 (1966).”

285 Ala. at 657; 235 So.2d at 802.

While the rule on its face only establishes the duty an employer owes an independent contractor, I think it also subsumes the question of assumption of risk in establishing the duty.

In order to show that a plaintiff has assumed the risk, it must be established that the plaintiff knows and understands the risk and that his choice to incur it is entirely free and voluntary. W. Prosser, Handbook of the Law of Torts, § 68 (1971). “There is no assumption of risk where there is no knowledge of risk.” Southern Railway Co. v. Chestnutt, 210 Ala. 282, 97 So. 905 (1923). The rule establishing the liability or lack of liability of the owner is predicated on the same circumstance as some of the requirements for establishing an assumption of risk defense, that is, knowledge of defects or dangers by the injured party. One cannot know and appreciate the risk in a certain situation without having knowledge of the defect or danger that gives rise to the risk.

Therefore, because the rule governing liability under the facts of this case necessarily requires an analysis of what the independent contractor knew or ought to have known, an instruction on the defense of assumption of risk was inappropriate. The giving of such an instruction could only mislead and confuse the jury. The jury might well have concluded that while the owner would otherwise have been liable, the injured party’s assumption of the risk was a defense.

MADDOX, Justice

(dissenting).

The Court holds that the trial court incorrectly instructed the jury that assumption of risk was a valid defense to the wantonness count. Even though I stand alone, I must respectfully dissent. I am of the opinion that, as appellees contend, the present case is distinguishable from Blount Brothers Construction Co. v. Rose, 274 Ala. 429, 437, 149 So.2d 821, 830 (1962), the case cited by the Court in reversing the trial court. In Blount Brothers Construction Co., the injured party was not upon the premises for the purpose of repairing a defect on the premises or of machinery or appliances located on the premises, as is the case here.

I agree that where a risk separate and distinct from those created by the defects to be repaired under the contract results in the injury or death of a contractor or the contractor’s employees, the contractee cannot successfully invoke the defense of assumption of risk as a defense to a wantonness count. The other members of the Court apparently think that the premises owner here did create a risk separate and apart from those created by the defect to be repaired. I do not think so. I believe that the general rule governing the extent of an owner’s duty to furnish an independent contractor and his employees a safe place to work and to warn them of hidden dangers is applicable under the facts of this case. The Blount Brothers Construction Co. case, therefore, can be distinguished.

This Court has previously held that “a premises owner [generally] owes no duty of care to employees of an independent contractor with respect to working conditions arising during the progress of the work on the contract.” Weeks v. Alabama Electric Cooperative, Inc., 419 So.2d 1381 (Ala.1982). This is especially true as to dangers which the contractor and his employees recognize and assume as part and parcel of the contract entered into with the premises owner. 41 Am.Jur.2d Independent Contractors, § 28 (1968).

Here, the contractor and his employees knew that the tank they had agreed to repair had been previously filled with a volatile material. This fact, along with the fact that Chance smelled gasoline fumes, was sufficient to alert him to the dangers inherent in the repair he was about to attempt. Having such knowledge, he can only be seen as having assumed the danger as a calculated risk of his performance of the contract, in my opinion. His assumption of a known, and in my view, almost certain, risk could, if the jury so found, insulate the premises owner from liability, whether that liability was based upon a theory of negligence or of wantonness. Consequently, I cannot join in reversing this case. Furthermore, even assuming that the trial court incorrectly instructed the jury, did that error prejudicially affect Chance’s right to a fair trial? I think not. If it was error, it was harmless. Rule 45, Ala.R.App.P. The fact that the jury returned a verdict on the simple negligence count is further evidence that the “harmless error” rule would be uniquely applicable here.

Under the factual situation of this case, I would adopt the following rule of law:

“... [T]he owner is not liable for death or injury of an independent contractor or his employees resulting from dangers which the contractor, as an expert, has known, or as to which he and his employees ‘assumed the risk.’ As to contracts for such repair work, it is reasoned that the contract is sufficient in itself to impart notice of a defect, the extent of which the repairman must discover for himself. ...”

See, 41 Am.Jur.2d Independent Contractors, § 28 (1968).

Consequently, I respectfully dissent.

      . We note, as a matter of interest, that Appellees do not contend that the jury’s verdict favorable to them on the simple negligence claim, as a matter of law, absolves them from liability on the wanton conduct claim; and this for valid reason, because there is no such rule of absolution under our cases, where the evidence supports the wanton conduct claim. Wantonness is not a mere higher degree of culpability than negligence. See Graves v. Wildsmith, 278 Ala. 228, 177 So.2d 448 (1965). Moreover, such a rule, if recognized, could have no application in the context on a contributory negligence defense.

      . The following is the remainder of Section 28, omitted from Appellees’ brief:

        "On the other hand, where a risk separate and distinct from those created by the defects to be repaired under the contract resulted in the injury or death of a contractor or the latter's employee, it has been held that a contractee cannot successfully invoke the defense of assumption of risk, and that the general rules governing the extent of his duty to furnish an independent contractor and the latter’s employees a safe place of work and to warn them of hidden dangers are applicable.”


author: BEATTY, Justice.

text:
    Mack DAVIS III, Through his mother and next friend, Shelia DAVIS v. HARTFORD INSURANCE COMPANY OF ILLINOIS, INC.
    83-674.
    Supreme Court of Alabama.
    Sept. 7, 1984.
    E.L. Brobston, Bessemer, for appellant.
    William Dudley Motlow, Jr., of Porter-field, Scholl, Bainbridge, Mims & Harper, Birmingham, for appellee.
   BEATTY, Justice.

This is an appeal by plaintiff Davis from a summary judgment entered in favor of Hartford Insurance Company of Illinois, Inc. (Hartford), defendant in Davis’s action, which claimed, among other things, that he was covered as a “relative” as that term is used in the uninsured motorists coverage of Hartford’s policy of insurance issued to Davis’s father. We affirm.

Plaintiff, Mack Davis III, is the son of Mack Davis, Jr., and Shelia Davis. They were married in Bessemer in January 1972, and thereafter they moved to Beloit, Wisconsin, and then to Rockford, Illinois. They had two children, Tomika and Mack III. In 1978, Mack, Jr., and Shelia separated. Mack, Jr., remained in Rockford, Illinois. Shelia Davis returned to Bessemer with the two children, and she has resided in Bessemer since that time. From January 1978 until the date of the accident referred to below, October 10, 1980, Mrs. Davis never visited her estranged husband, nor did either of her children visit him. On the other hand, Mr. Davis came to visit Mrs. Davis “every year just about,” sometimes staying with his mother in Greene County and sometimes staying with Mrs. Davis and the children. During August 1981, about ten months after the accident in question, Mack III visited his father in Illinois for the first time since his parents’ separation.

After their separation and her return to Alabama, Mrs. Davis filed for a divorce but it was never finalized.

On October 10, 1980, Mack III, after exiting a bus operated by the Jefferson County Committee for Equal Opportunity, was injured when struck by an automobile in Bessemer. Apparently, the driver of the automobile was uninsured. By and through his mother; he sued the driver of the car and the Committee for Equal Opportunity. Later, the complaint was amended to add Hartford. The amendment was based upon an automobile insurance policy issued in Illinois by Hartford to plaintiff’s father residing in Illinois, providing uninsured motorists coverage. The amendment alleged:

“At the time of the accident the minor plaintiff was physically residing in the home of his mother ... who resided at 1215 North First Avenue, Bessemer, Alabama. The father of the minor plaintiff ... resided at 924 Cunningham, Rockford, Illinois. At the time of said accident the parents of said child were separated. No divorce action was pending and no order of custody relating to the minor child was in existence.
“WHEREFORE, plaintiff prays that upon a hearing of this cause that the Court will determine the respective rights of the parties in regard to the insurance policy and upon such hearing determine that the plaintiff is in fact entitled to the benefits of said policy. ...”

Defendant Hartford’s motion to dismiss was overruled. Later, Hartford’s motion for summary judgment, based upon the pleadings and the deposition of Shelia Davis, supported by briefs for and against the motion, was considered by the trial court, which thereafter granted summary judgment for Hartford, stating:

“After considering the motion, the court is of the opinion the plaintiff, Mack Davis, III, a minor was not a resident of same household of Mack Davis, Jr., at the time of the accident and therefore was not entitled to benefits of Policy # 85DF302540 issued by Hartford Insurance Company of Illinois, Inc., insuring Mack Davis, Jr., and relatives of the insured and relatives who are residents of the same household....”

Plaintiff appeals from that judgment.

The uninsured motorists coverage provision is found in Section III of the policy. Under subsection 2 thereof are found the definitions applicable to Section III:

“The definitions under Section I, except the definition of ‘insured,’ apply to Section III, and under Section III:
“ ‘insured’ means:
“(a) the named insured and any relative;”

Section I, referred to in the above subsection, defines “relative”:

“ ‘relative’ means a relative of the named “insured who is a resident of the same household;”

The first question to be resolved is: which law governs, Illinois law or Alabama law? It is our conclusion that Illinois law applies. The insurance contract was made within the State of Illinois between an Illinois company and an Illinois resident. American Interstate Ins. Co. of Georgia v. Holliday, 376 So.2d 701 (Ala.1979) (Georgia law applied to insurance policy issued by Georgia insurance company to Georgia citizen); State Farm Mutual Automobile Ins. Co. v. Bradley, 293 Ala. 695, 309 So.2d 826 (1975) (South Carolina law applied to insurance policy issued in South Carolina on automobiles principally garaged in South Carolina). See generally 44 C.J.S. Insurance § 52 (1945) at 504-08.

In Yarbert v. Industrial Fire and Casualty Ins. Co., 56 Ill.App.3d 1034, 14 Ill.Dec. 607, 372 N.E.2d 886 (1978), the court reviewed the effect of an automobile policy containing the exact language as that before us. In that case, the plaintiff was the mother of the insured. She brought a declaratory judgment action against her son’s insurance company, alleging that she had been struck and injured by an uninsured motorist, that the company had issued her son an automobile policy containing uninsured motorists coverage (containing the above definitions), but that the company had denied her benefits on the ground that she did not reside at the same address as the named insured.

In holding that “the word ‘relative’ as used in Part IV (‘Protection Against Uninsured Motorists’), is limited to relatives of the named insured who are members of the same household,” the Illinois Court reiterated the established rule that “[t]he construction to be given to insurance contracts, like other contracts, should be a natural and reasonable one ... having reference to the risk and the subject matter and the purposes of the entire contract.” The court observed that the effect of plaintiff’s contention was that under the policy all of her son’s relatives wherever found would be covered, a position the court found untenable.

It is noteworthy that the Yarbert case cited Insurance Company of North America v. Stevens, 425 F.2d 704 (5th Cir.1970). In that case, a nephew of the insured was injured by an uninsured automobile. In upholding the denial of coverage, the court interpreted “the named insured and any relative” as defined by the terms of the policy, which read:

“The definitions under Bodily Injury and Property Damage Liability Coverage, except the definition of ‘Insured’ apply to Uninsured Motorists Coverage, and under Uninsured Motorists Coverage:
“ ‘insured’ means:
“(a) the named insured and any relative;”

The court found that bodily injury and property damage liability coverage in the policy defined “relative” to mean:

“a relative of the named insured who is a resident of the same household;”

Contrary to plaintiff’s contention, these definitions in the policy are clear and unambiguous, and have been so treated by the Illinois courts. For example, a number of Illinois decisions have taken the literal language of household exclusionary clauses in liability insurance policy provisions applicable to a “relative,” defined as a “resident of the named insured’s household who is related to the named insured by blood, marriage or adoption,” to grant coverage to relatives who were not “residents” but only temporary guests, e.g., Country Mutual Ins. Co. v. Mooney, 59 Ill.App.3d 946, 17 Ill.Dec. 440, 376 N.E.2d 439 (1978) (sister of insured’s wife not resident of insured’s home but temporary guest only); Country Mutual Ins. Co. v. Watson, 1 Ill.App.3d 667, 274 N.E.2d 136 (1971) (child in foster home for temporary care not resident of household due to absence of intention to make temporary facility permanent abode). See also, State Farm Mutual Automobile Ins. Co. v. Differding, 46 Ill.App.3d 15, 4 Ill.Dec. 586, 360 N.E.2d 522 (1977) (daughter who leased apartment at graduate school but maintained permanent residence with parents was resident-relative of parents’ household under definition of “resident” which provided that “unmarried and unemancipated children, while away from his household attending school, are deemed to be residents of his household”). A perusal of the Illinois eases discloses no inconsistency in the interpretations of the household exclusionary provisions regardless of the types of policies involved. We perceive nothing in the Illinois cases dealing with the application of the “clear and unambiguous” principle which would allow us to depart from that rule in an uninsured motorists coverage case.

Was Mack Davis III a resident of his father’s household? Under the Illinois decisions, it is clear that he was not.

In Country Mutual Ins. Co. v. Watson, supra, the Illinois court construed the policy phrase “residents of his [the insured’s] household.” That court reasoned, at 274 N.E.2d at 138:

“There has been no Illinois decision cited, nor has our research revealed a case, which has interpreted the phrase ‘resident of his household’; however, numerous Illinois cases have construed the term ‘resident’ in a context other than as applied to insurance policies. These cases support the statement found in Routt v. Barrett, 396 Ill. 322, 344, 71 N.E.2d 660, 671 (1947), that, ‘The word “resident” is in common usage and is generally understood to mean one having more than mere physical presence.’ [Emphasis added.] The elements required beyond physical presence are intention and permanency of abode.” (Citations omitted.)

This decision and others cited by it, we respectfully submit, clearly express the Illinois position on the term “resident of the same household.” See also the common legal definitions in Black’s Law Dictionary (5th ed.) of resident and household.

In the Mooney and Watson cases, supra, the Illinois court determined that the status of “resident” required the simultaneous existence of three elements: physical presence, intention to make the abode a permanent one, and the permanency of the abode.

Applying those elements to this case, it is undisputed that Mrs. Davis left her husband’s home in Rockford, Illinois, and established a home in Bessemer, Alabama, for herself and her children. She and her children lived in the Bessemer home without interruption from the time she returned to Bessemer in 1978 until October 1980. Mack Davis III was never physically in Rockford, Illinois, until August 1981, and then only for a visit of a few days. All of his possessions, in fact, are in Bessemer. Accordingly, neither physical presence at his father’s household in Illinois nor any intent to make his father’s household his permanent abode, is shown under the evidence. Moreover, from that evidence, it is clear that Mack III is a resident of his mother’s home in Bessemer, not his father’s home in Rockford, Illinois.

Mrs. Davis and Mack III reside in the home Mrs. Davis provides for them in Bessemer. Mrs. Davis refers to Bessemer as her home. At the time of the accident, Mack III was a student in the Bessemer “Head Start” program, and later enrolled in a Bessemer school. Mack III visited Rockford, Illinois, briefly after the accident. These facts demonstrate that his permanent residence is in Bessemer, not Rockford. Thus, under Illinois law, he is not a member of his father’s household, and, therefore, was not “a relative living in his father’s household” at the time of this accident.

Let the judgment be affirmed.

AFFIRMED.

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

      . "Resident. Any person who occupies a dwelling within the State, has a present intent to remain within the State for a period of time, and manifests the genuineness of that intent by establishing an ongoing physical presence within the State together with indicia that his presence within the State is something other than merely transitory in nature."

      . “Household, n. A family living together. Schurler v. Industrial Commission, 86 Utah 284, 43 P.2d 696, 699. Those who dwell under the same roof and compose a family. A man’s family living together constitutes his household, though he may have gone to another state. Term ‘household’ is generally synonymous with 'family’ for insurance purposes, and includes those who dwell together as a family under the same roof. Van Overbeke v. State Farm Mut. Auto. Ins. Co., 303 Minn. 387, 227 N.W.2d 807, 810. Generally, the term ‘household’ as used in automobile policies is synonymous with ‘home’ and ‘family.’ Bartholet v. Berkness, 291 Minn. 123, 189 N.W.2d 410, 412.’’


author: BRADLEY, Judge. WRIGHT, Presiding Judge,

text:
    Ex parte Jimmy CALLOWAY. (Re STATE of Alabama v. Jimmy CALLOWAY).
    Civ. 3929.
    Court of Civil Appeals of Alabama.
    Dec. 21, 1983.
    Rehearing Denied Jan. 18, 1984.
    Frank B. Angarola and Michael Miskow-iec of Legal Services Corp. of Ala., Andalusia, for appellant.
    Frank L. McGuire, III, Opp, for appellee.
   BRADLEY, Judge.

On March 4, 1983, after a trial on the complaint of Monica Lane alleging that petitioner, Jimmy Calloway, was the father of her child, Celeste, the District Court of Covington County, Alabama found that Mr. Calloway was the father of the child and ordered Mr. Calloway to pay $826 to the Alabama Department of Pensions and Security to reimburse the department for aid to dependent children benefits paid to the child.

Mr. Calloway timely appealed the district court’s judgment to the Circuit Court of Covington County. Subsequently, Callo-way filed a motion for appointment of counsel and for a blood test to be paid for by the county or state because he is indigent.

The circuit court denied Mr. Calloway’s motions and noted in its order that blood grouping tests had been previously performed in the case on January 5, 1983. Calloway’s request for reconsideration of this order was denied.

Mr. Calloway filed a petition for writ of mandamus and a motion for stay of proceedings in this court. On August 22, 1983 this court stayed the proceedings below and ordered a response to the petition and, additionally, on October 11, 1983 the court ordered briefs to be filed.

In support of his petition for mandamus, Calloway argues that his right to due process will be abridged unless he is given the opportunity to obtain the most accurate blood tests presently available. He says that he is indigent and therefore is unable to obtain these blood tests. As authority for his argument, Calloway cites us to the case of Little v. Streater, 452 U.S. 1, 101 S.Ct. 2202, 68 L.Ed.2d 627 (1981). In Little the United States Supreme Court said denial of the aid of blood test evidence in a paternity action to an indigent defendant who has the burden of proving by independent evidence that he is not the father of an illegitimate child effectively denied that defendant an opportunity to be heard and thus was a denial of due process.

In the case at bar the petitioner was accorded certain blood tests which failed to exclude him as the father of the child in question. The district court found him to be the father of the child in question.

On appeal to the circuit court, the petitioner again requested blood tests to help establish that he is not the father of the child. He also requested the appointment of counsel and to require the state or county to pay for the additional blood tests on the ground that he was indigent. The circuit court denied his request for blood tests paid for by the state or county on the ground that he had been given blood tests earlier and the results were available to the court.

Section 26-12-5, Code 1975, provides that in an illegitimacy case the reputed father can request that blood tests be made of the reputed father, the mother, and the child, and that the court may order that the costs be paid by the county or one or both of the parties in the case. It appears that petitioner requested that blood tests be made; they were made, and the costs assessed against Covington County.

The Little case, supra, holds that the reputed father was denied due process because blood tests were not made due to his indigency. The Connecticut statute required the requesting party to pay for the blood tests. In the case at bar the Alabama statute authorized the trial court to assess the costs of the blood tests against the county, and the county was required to pay for the blood tests. Accordingly, we do not find that the petitioner has been denied due process of law by the refusal of the circuit court to order that further tests be made at the expense of the county. Also, we do not find that Little v. Streater, supra, mandates a different finding.

WRIT DENIED.

HOLMES, J., concurs.

WRIGHT, P.J., dissents.

WRIGHT, Presiding Judge,

dissenting.

I feel that I must respectfully dissent. I recognize that there are statutory, factual and procedural distinctions between this case and the case of Little v. Streater, 452 U.S. 1, 10, 101 S.Ct. 2202, 2207, 68 L.Ed.2d 627 (1981). However, there are also basic similarities. First, as in Streater, an Alabama paternity proceeding brought under §§ 26-11-1 to -9, Code of Alabama 1975, is an action in the name of the State and has long been classified as quasi-criminal in nature. Hunter v. State, 293 Ala. 226, 301 So.2d 541 (1974). Thus, there is constitutionally due some degree of due process. Second, the blood tests requested in this case are clearly those referred to and discussed at length in Streater. It is undisputed that the test already performed was a simple ABO blood type test, which revealed only that the mother, child and defendant were all the same blood type. Such test neither confirmed nor excluded the parentage of defendant. It is my opinion that such test, representing only one of the seven “systems” of the test described as effective to a 91% probability of negating paternity by the court in Streater, is of such little probative value as to be insufficient. I believe the denial of the benefit of the “seven systems” test, the only test recognized as reliable to aid the accused in his defense of the charge brought and prosecuted by the State under statute (§ 26-12-3, Code 1975), because of his indigency, is a denial of the due process required by Streater. In the words of the court in Streater, “[T]o deny appellant blood grouping tests because of his lack of financial resources violated the due process guarantee of the Fourteenth Amendment.”

The contention of the State that mandamus is not proper in this case because the denial or granting of the blood test is discretionary will not stand. The right to due process is not discretionary but is mandatory-

I would therefore enter the writ of mandamus directing the court below to order, the mother, child and defendant to submit to the “seven systems” blood test, the only test found to be reasonably sufficient to aid the court in determining whether the accused may be excluded as the father of the child. Further, there being no apparent dispute as to the indigency of the accused, I would direct the court to order the cost of such test be assessed against the county.


author: MADDOX, Justice.

text:
    Ex parte Jimmy CALLOWAY. (Re Ex parte Jimmy CALLOWAY). (Re STATE of Alabama v. Jimmy CALLOWAY).
    83-477.
    Supreme Court of Alabama.
    Sept. 14, 1984.
    Michael Miskowiec of Legal Services Corp. of Ala., Andalusia, for petitioner.
    Mary Lee Stapp and William Prender-gast, Asst. Attys. Gen., and Frank L. McGuire, Opp, for respondent.
   MADDOX, Justice.

This case involves administration of a blood test in a paternity action under Code 1975, § 26-12-5.

The pertinent facts are as follows: On March 4, 1983, the District Court of Cov-ington County found Jimmy Calloway to be the father of Monica Lane’s illegitimate daughter, Celeste, and ordered him to reimburse the Alabama Department of Pensions and Security $826 for “aid to dependent children” previously provided the child. Calloway appealed to the Circuit Court of Covington County, filing a motion alleging indigency and requesting appointment of counsel and a blood test at state expense. Both motions were denied. The trial court determined that a previous court-ordered blood test performed on January 5, 1983, was sufficient to protect defendant’s constitutional rights.

After his request for reconsideration was denied, Calloway petitioned the Court of Civil Appeals for writ of mandamus and for a stay of the proceedings below. The stay was granted, but mandamus was eventually denied, as was Calloway’s application for rehearing. He then petitioned here for cer-tiorari, which we granted.

Calloway contends that the Court of Civil Appeals erred in failing to order that a second, more accurate, blood test be performed, at state expense. It is his contention that Little v. Streater, 452 U.S. 1, 101 S.Ct. 2202, 68 L.Ed.2d 627 (1981), which addressed a Connecticut statute requiring a defendant in a paternity proceeding to pay for a blood test, which he requested in order to disprove his paternity, holds that due process mandates that an indigent defendant in such an action must be provided with the most accurate blood test currently available, at state expense.

The Court of Civil Appeals, speaking through Judge Bradley, wrote that:

“In Little the United States Supreme Court said denial of the aid of blood test evidence in a paternity action to an indigent defendant vfho has the burden of proving by independent evidence that he is not the father of an illegitimate child effectively denied that defendant an opportunity to be heard and thus was a denial of due process....
“Section 26-12-5, Code 1975, provides that in an illegitimacy case the reputed father can request blood tests be made of the reputed father, the mother, and the child, and that the court may order the costs be paid by the county or one or both of the parties in the case. It appears that petitioner requested blood tests be made; they were made, and the costs assessed against Covington County-
“The Little case, supra, holds that the reputed father was denied due process because blood tests were not made due to his indigency. The Connecticut statute required the requesting party to pay for the blood tests. In the case at bar the Alabama statute authorized the trial court to assess the costs of the blood tests against the county, and the county was required to pay for the blood tests. Accordingly, we do not find that the petitioner has been denied due process of law by the refusal of the circuit court to order further tests be made at the expense of the county. Also, we do not find that Little v. Streater, supra, mandates a different finding.”

456 So.2d 306.

We believe that the reasoning of the court below is sound.

Calloway’s basic argument is that, although he was provided, at state expense, with the usual ABO-RH blood test, that test, which will only exclude the paternity of 13 to 18% of Negro males and 19 to 27% of white males, R. Acton, and B. Barger, “Guidelines for the Use of Genetic Tests to Establish Paternity” (Preprint of an article to appear in “A Prosecutor’s Handbook for the State of Alabama”), is, as the dissenting member of the Court of Civil Appeals stated, “of such little probative value as to be insufficient” to meet the requirements of due process under Little. He would have us hold that due process requires that indigents be administered, upon request, the “seven systems” test as described in Little, which will negate the paternity of 98% of white males and 96% of Negro males, Acton & Barger, supra. Our reading of Little and the cases following it does not support Calloway’s contention.

Although the opinion in Little contains a lengthy discussion of the use and effectiveness of blood tests, in particular the “seven systems” test, in negating paternity, nowhere in that opinion does the Supreme Court require that an indigent putative father be given any specific type of blood test or the most accurate test available. The Court, in Little, simply held that the Connecticut statute, when applied to indigents, denied them access to blood tests, and amounted to a denial of due process. Cal-loway refers us to footnote four in the majority opinion and footnote two in the dissenting opinion of Mills v. Habluetzel, 456 U.S. 91, 102 S.Ct. 1549, 71 L.Ed.2d 770 (1982), and to the opinion in Pickett v. Brown, 462 U.S. 1, 103 S.Ct. 2199, 76 L.Ed.2d 372 (1983), asserting that these cases show that administration of the “seven systems” test is now required to satisfy due process in cases like the present one. His assertion appears misguided. Neither of those opinions, which deal with limitations periods on paternity actions rather than the accuracy of blood tests, requires that the aforementioned test or any other blood test be performed. Like Little, they only recognize the accuracy and usefulness of the “seven systems” test in negating paternity.

Because we find no requirement, in Little or in the other authority cited by Callo-way, for the proposition that any particular blood test must be administered to an indigent putative father, and because Calloway has already received one blood test, although perhaps not the most accurate available, we find that he is not constitutionally entitled to a second such procedure. Therefore, we affirm.

AFFIRMED.

FAULKNER, JONES, SHORES, EM-BRY, BEATTY and ADAMS, JJ., concur.

ALMON, J., dissents.

TORBERT, C.J., not sitting.