text:
    Benjamin Franklin PHILLIPS v. Reynolds T. ALONZO, Jr. Benjamin Franklin PHILLIPS v. Joseph D. QUINLIVAN.
    82-588, 82-589.
    Supreme Court of Alabama.
    July 29, 1983.

      Benjamin Franklin Phillips, pro se.
    A. Neil Hudgens and Michael S. McGlo-thren of Brown, Hudgens, Richardson, Whitfield & Gillion, Mobile, for appellees.
   FAULKNER, Justice.

These appeals are from summary judgments in favor of Quinlivan and Alonzo. We affirm.

Benjamin Franklin Phillips was indicted by the Mobile County grand jury on June 5, 1981, for the offense of robbery in the first degree. He was convicted and sentenced, as a habitual offender, to life in prison without parole.

Alonzo was appointed by the court to defend Phillips at his trial. Quinlivan was appointed to prosecute Phillips’s appeal to the Alabama Court of Criminal Appeals. Quinlivan filed a brief in the appellate court alleging errors committed by the trial court, and citing authorities of law in support of his allegations. The Court of Criminal Appeals affirmed the judgment of the trial court, without opinion. Subsequently, the court overruled the application for rehearing. Phillips’s petition for writ of certiorari to this court, filed by another lawyer, was denied without opinion on January 28, 1983. Meanwhile, Phillips had filed a complaint in the Circuit Court of Mobile County on November 5, 1982, against Quinlivan and Alonzo, alleging professional legal malpractice and praying for $1,000,000.00 as punitive damages. Against Alonzo, Phillips alleged negligence by not preparing any defense against the criminal charges. Against Quinlivan, Phillips alleged that Quinlivan filed a “no-merit” brief in the Court of Criminal Appeals.

After answering the complaint, Quinlivan filed a motion for summary judgment supported by his affidavit stating that in his opinion:

“. .. the professional services rendered to Benjamin Franklin Phillips during the time in question and under the same or similar circumstances were properly rendered services, and that he is not guilty of negligence or professional neglect in the manner in which he handled Benjamin Franklin Phillips’ case; and that it is his opinion that the professional services administered by him to Benjamin Franklin Phillips were in accordance and conformity with the general accepted standards, customs, and practice of attorneys as they existed at that time under the same or similar circumstances in the City of Mobile, Mobile County, Alabama, and the legal community.”

Alonzo filed, substantially, the same affidavit in support of his motion for summary judgment. Phillips also filed a motion for summary judgment supported by his affidavit. His affidavit did nothing more than restate the allegations of his complaint. No expert testimony and no other competent evidence of any kind was offered by Phillips tending to show a breach of professional duty by Quinlivan or Alonzo.

The affidavits of Quinlivan and Alonzo related to the science of their profession, and therefore were proper subjects for expert testimony. Liner v. Temple, 373 So.2d 638 (Ala.1979). For Phillips to succeed in the motions for summary judgment filed by the attorneys, he must have come forward with expert testimony to show negligence on the part of the attorneys. This he did not do, and there is no genuine issue of material fact for trial. Therefore, summary judgment was appropriate under Rule 56(e), A.R.Civ.P.

AFFIRMED.

TORBERT, C.J., and ALMON, EMBRY and ADAMS, JJ., concur.


source: Caselaw Access Project

author: ALMON, Justice.

license: Public Domain

text:
    Ex parte HOUSTON COUNTY. (In re Carlos Alfredo PONCE, etc., et al. v. HOUSTON COUNTY, Alabama).
    82-624.
    Supreme Court of Alabama.
    July 29, 1983.

      William C. Carn, III and William L. Lee, III of Lee & Mclnish, Dothan, for petitioner.
    Rufus R. Smith, Jr. of Farmer, Price, Espy & Smith, Dothan, for respondents Luis Ponce and Harold D. Brown.
    Steven K. Brackin of Lewis & Brackin, Dothan, for respondent Herbert Deal, Jr.
   ALMON, Justice.

This petition for writ of mandamus arises from a pending action for injuries received in a one-ear accident. The trial court granted plaintiffs’ motion in limine precluding any evidence of the speed or reckless operation of plaintiffs’ vehicle “at any time other than up and until the immediate time of the accident.” The defendant Houston County brings this petition seeking to have this Court direct the trial court to permit the defendant to offer evidence of the speed or reckless operation of the plaintiffs’ car prior to the moment of the mishap itself.

Plaintiffs are two minors, Carlos Alfredo Ponce and Charles R. Brown, and the father of the deceased minor, George Lindsey Deal. The three boys occupied an automobile involved in a one-ear accident on January 23, 1981, on the Old Taylor Road in Houston County, Alabama. Charles Brown was driving the car.

Ponce and Deal’s father (hereinafter Deal) sued Brown for wanton operation of the car and his father for negligent entrustment. The parties have reached a pro tanto settlement on these claims. The case before us involves counts in amended complaints by Ponce and Deal and in a complaint filed by Brown against Houston County for improper maintenance of Old Taylor Road. Houston County defended, inter alia, on contributory negligence and assumption of risk. The cases were consolidated for trial.

The plaintiffs filed their motion in limine, and the court granted the motion in the terms requested, ordering:

“That the Defendants, their counsel, and their witnesses refrain from introducing any evidence, either directly or indirectly, by direct examination or cross examination, or by mentioning or alluding to, with regard to any alleged speeding of the Brown vehicle or reckless driving of the Brown vehicle or other circumstances or conditions concerning the Brown vehicle at any time other than up and until the immediate time of the accident complained of in Plaintiffs’ Complaint, without further order of this Court.”

The court found that any evidence of speed or recklessness at any time other than the immediate time of the accident would be too remote and irrelevant.

The facts as revealed in depositions included in the record are as follows. On the night of the accident, plaintiffs were engaged in following or chasing another car occupied by four minors: Mike Palmer, Dickey Lillard, Ronnie Goss, and Roger Whatley, the driver. Palmer, Lillard, and Whatley gave depositions regarding the events leading up to the accident. As the boys in the Whatley car were leaving a local pizza parlor, the boys in the Brown car pulled out behind them and started following them. They drove through several residential neighborhoods, hoping that Brown and the others would grow tired of following them.

When this did not happen, Whatley proceeded to the highways and tried to leave the other car behind: he was driving a Pontiac Trans-Am, a more powerful car than the Ford Maverick driven by Brown. Although Brown would lose ground on straightaways, he managed to regain it on curves and in traffic. The boys testified that they were driving 90 to 95 miles per hour or more and the Brown ear stayed relatively close behind them.

Whatley turned off the highway onto Bob Hall Road and from there onto Old Taylor Road. He slowed down for a mo-merit, hoping that Brown had not seen him make the turn and would continue on the other road. He saw in the rearview mirror a car make the turn, and he could tell by the light of a streetlight that it was Brown’s car. The boys testified variously that it was one hundred to four hundred yards behind them at that time.

Whatley accelerated. Approximately a mile to a mile and a half down the road they reached a curve which turned to the right. All three of the young men testified on deposition that they were going 90 to 95 miles per hour as they rounded the curve, and that they themselves almost wrecked. Lillard testified that the driver behind them was trying to catch them and estimated that the second car was going 90 to 95 miles per hour on the straightaway of Old Taylor Road before the curve where the accident happened. Palmer testified that he saw headlights flash on the trees as though the car had turned, but none of the boys saw it wreck. Deal died of injuries received in the wreck. Ponce and Brown were severely injured and state that they have no recollection of the events leading to the accident.

Respondents, the plaintiffs Ponce, Deal, and Brown, argue that all of this testimony is irrelevant as being too remote because none of the boys in Whatley’s car saw Brown’s car as it entered the curve or could estimate its speed at that time.

Admission of evidence as to the speed or manner of operation of an automobile prior to the time of an accident is a matter for the trial court’s discretion. Deese v. White, 294 Ala. 123, 313 So.2d 166 (1975); Coker v. Ryder Truck Lines, 287 Ala. 150, 249 So.2d 810 (1971); Swindall v. Speigner, 283 Ala. 84, 214 So.2d 436 (1968); Shirley v. Shirley, 261 Ala. 100, 73 So.2d 77 (1954); Utility Trailer Works v. Phillips, 249 Ala. 61, 29 So.2d 289 (1946); Whittaker v. Walker, 223 Ala. 167, 135 So. 185 (1931); Davies v. Barnes, 201 Ala. 120, 77 So. 612 (1917). This discretion should be exercised in light,of the facts of the case and the probative value of the contested evidence as opposed to its prejudicial effect.

As stated in the leading treatise on the law of evidence in Alabama:

“The courts of this state adhere rather uniformly to the rule that the admissibility of evidence regarding the speed of a motor vehicle before reaching the scene of the accident depends upon the facts of each case and must be left to the sound discretion of the trial court. This discretion, of course, is not without direction. The job for the trial court is to look at the speed or conduct prior to the accident and to determine if there is a high probability that it continued up until the accident. The issue is whether the prior moment of speeding is too remote to permit an inference that substantially the same rate of speed was probably maintained up to the time of the accident in question ....”.

C. Gamble, McElroy’s Alabama Evidence (3d ed. 1977), § 45.04 (citations omitted; emphasis added).

It is clear that a ruling on admissibility of evidence regarding pre-accident speed requires consideration of the particular facts of the case and should be determined within the sound discretion of the trial court. However, considering the evidence in the record before us, there is an extremely high probability that the Brown car was continuing the high speed chase of the Whatley car when it wrecked.

The trial court’s order granting the motion in limine too broadly precludes the county from presenting any of the evidence alluded to above, much less any other evidence, such as testimony of Goss, who was not deposed. We note that the depositions of Whatley, Lillard, and Palmer were taken before the county was added as a defendant in Ponce and Deal’s actions or sued by Brown. Even aside from the fact that the trial court’s order hampers the county’s ability to develop its case, the order prohibits inquiry into facts which may very well be admissible. The boys in the Whatley car might have a reasonable estimate of the speed of the Brown car as it approached the curve, on the basis of their own speed, the distance maintained by the Brown car as they approached the curve, and how far they were from the curve when they saw the headlights in the trees. Evidence of the course of conduct of the occupants of the Brown car may even be admissible to provide an inference of the continuation of that conduct. Finally, some of the evidence may be admissible for cross-examination or the county’s defense of assumption of risk.

In some cases a motion in limine is a proper vehicle for preventing a jury from hearing prejudicial evidence. See, e.g., Acklin v. Bramm, 374 So.2d 1348 (Ala.1979); Louisville and Nashville Railroad Co. v. Phillips, 293 Ala. 713, 310 So.2d 194 (1975); C. Gamble, The Motion in Limine: A Pretrial Procedure That Has Come of Age, 33 Ala.L.Rev. 1 (1981).

Nevertheless, mandamus is an extraordinary remedy. “The petitioner’s right to relief must be clear and there must be no other adequate remedy.” Ex parte Harrington Manufacturing Co., Inc., 414 So.2d 74, 76 (Ala.1982); Ex parte Osborn, 375 So.2d 467 (Ala.1979); Campbell v. City of Hueytown, 289 Ala. 388, 268 So.2d 3 (1972); All American Life & Casualty Co. v. Moore, 286 Ala. 492, 242 So.2d 661 (1970). Mandamus is not a substitute for an appeal. Ex parte South Carolina Insurance Co., 412 So.2d 269 (Ala.1982); Echols v. Housing Authority of Auburn, 377 So.2d 952 (Ala.1979); Miller v. Holder, 292 Ala. 554, 297 So.2d 802 (1974).

In some cases an order granting a motion in limine is not absolute, but only preliminary, and the non-moving party may offer the disputed evidence at trial and, if the other party objects and the court sustains the objection, the party offering the evidence may appeal from this ruling. See C. Gamble, The Motion in Limine, supra, 33 Ala.L.Rev. at 16. The order entered below appears to be of the preliminary sort allowing offers at trial, because it ends with the words “without further order of this Court.”

In view of what we have said, we deem it appropriate for the trial court to reconsider the order granting the motion in limine. However, we are not inclined to issue the writ of mandamus in this discretionary area of evidence when the county has a remedy by appeal.

WRIT DENIED.

TORBERT, C.J., and FAULKNER, EM-BRY and ADAMS, JJ., concur.


author: EMBRY, Justice.

text:
    Anderson WALDON, Jr. v. HARTFORD INSURANCE GROUP, et al.
    81-1023.
    Supreme Court of Alabama.
    Aug. 5, 1983.

      Richard D. Lane, Auburn, for appellant.
    W.F. Horsley of Samford, Denson, Hors-ley, Pettey, Martin & Barrett, Opelika, for appellees.
   EMBRY, Justice.

This is a workmen’s compensation case. Mr. Anderson Waldon, Jr., was injured in a work-related accident on 31 March 1980. At that time he was working for J.A. Lett Construction Company, Inc. (Lett). Waldon received workmen’s compensation benefits for injuries to his left leg which resulted from this accident. Later, Waldon became aware of additional injuries which, he contends, were the result of the same incident. The compensation carrier for Lett, Hartford Insurance Group (Hartford), refused to pay additional benefits for this injury.

Rather than suing for workmen’s compensation benefits under the Compensation Act, §§ 25-5-81 and 25-5-88, Code 1975, Waldon chose to bring a common law damage suit against Hartford and Lett, alleging that the employer negligently or intentionally refused to file a compensation claim with the carrier, and the carrier negligently or in bad faith refused to pay benefits. Hartford and Lett filed motions to dismiss which were granted by the trial court.

Two issues are presented for review: (1) Whether the employer, Lett, is immune from suit due to the exclusive remedy provisions of the Workmen’s Compensation Act; and (2) Whether the employer’s insurer, Hartford, is immune from suit brought by Waldon to recover for nonphysical injuries due to the exclusive remedy provisions of the Workmen’s Compensation Act.

I.

The exclusive remedy provision of the Workmen’s Compensation Act applicable to Lett reads as follows:

“No employee of any employer subject to this article, nor the personal representative, surviving spouse or next of kin of any such employee shall have any right to any other method, form or amount of compensation or damages for any injury or death occasioned by any accident proximately resulting from and while engaged in the actual performance of the duties of his employment and from a cause originating in such employment or determination thereof other than as provided in this article.” (Emphasis added.)

It is well established that this provision precludes workmen from bringing claims outside the Act when such claims arise from work-related injuries. In Wilkins v. West Point-Pepperell, Inc., 397 So.2d 115 (Ala.1981), this court considered the very issue here presented, whether an employee may sue his employer outside the Act for nonphysical injuries suffered as a result of the employer’s schemes to mislead him into foregoing benefits due under the Act. There, as here, the trial court granted the defendant’s motion to dismiss on the ground that the plaintiff was limited to the recovery allowed by the Act. This court affirmed, stating:

“We hold that the ‘exclusive remedy’ sections of the Workmen’s Compensation Act stand as an impenetrable barrier to the claims here sought to be asserted by the employee against his employer. §§ 25-5-52 and -53, and 25-5-3 and -4; see De Arman v. Ingalls Iron Works Co., Inc., 258 Ala. 205, 61 So.2d 764 (1952).
“Counsel’s argument, particularly with reference to Plaintiff’s ‘nonphysical injuries,’ is commendably ingenious and highly persuasive; but it is in the nature of a policy argument which is more properly addressed to the legislature. However inclined we may be to accept Plaintiff’s contention, we have no authority, constitutionally, statutorily, or otherwise, to judicially engraft an exception into the immunity provisions applicable to the employer. Clark v. Chrysler Corp., 342 So.2d 902 (Ala.1977); see, also, Adair v. Moretti-Harrah Marble Co., Inc., 381 So.2d 181 (Ala.1980). By the explicit terms of the Workmen’s Compensation Act, a compensable injury (and, in the case of pneumoconiosis, its aggravation) has its exclusive remedy against the employer under the act and not otherwise. Breimhorst v. Beckman, 227 Minn. 409, 35 N.W.2d 719 (1949). The trial court did not err in dismissing Plaintiff’s claim against West Point-Pepperell."

397 So.2d at 117-118.

For the reasons stated in Pepperell, Lett’s motion to dismiss was properly granted by the trial court.

II.

Waldon contends he has the right to bring common law actions against Hartford Insurance Group for negligence and bad faith, in refusing to review his claim, despite the exclusivity provisions of the Workmen’s Compensation Act. The exclusive remedy provision applicable to Hartford, § 25-5-53, Code 1975, provides:

“The immunity from civil liability shall extend to any workman’s compensation insurance carrier of such employer.... ”

Waldon’s “argument is almost identical to that advanced and refuted in Wilkins v. West Point-Pepperell, supra.

It is well-settled that the exclusivity provisions of the Workmen’s Compensation Act will not bar certain suits against workmen’s compensation insurance carriers. In Fireman’s Fund Am. Ins. Co. v. Coleman, 394 So.2d 334 (Ala.1981), an insurance carrier was denied the right to rely on the immunity provisions of the Act. That case is clearly distinguishable. In Coleman, a compensation insurance carrier had made a negligent safety inspection, and suit was allowed outside the Act. The insurance company was making safety inspections for its own benefit in order to reduce claims, and in that capacity this court held it was not standing in the shoes of the employer.

On this subject, Professor Larson has stated that:

“[A] distinction should be drawn between the carrier’s function of payment for benefits and services ... and any function it assumes in the way of direct or physical performance of services related to the act.”

Larson, Workmen’s Compensation Insurer as Suable Third Party, 69 Duke L.J. 117 (1969).

Drawing on that reasoning, in Beasley v. MacDonald Engineering Co., 287 Ala. 189, 198, 249 So.2d 844, 853 (1971), we stated:

“In its role of supplying of the financial responsibility required of the employer under the act, it is entitled to all of the rights of its insured under the act”

Under the facts of this case, where Waldon alleges an improper refusal to review a claim, Hartford clearly remains within the confines of the exclusivity provision of the Act. Waldon’s dispute is with Hartford’s failure “to supply the financial responsibility required” under the Act; its refusal to pay a claim. His common law claim is so interwoven with the compensation award under the provisions of the Act, that to allow an independent common law action would circumvent the statutory provisions and the policy behind the statute. For cases so holding, see: Gambrell v. Kansas City Chiefs Football Club, 562 S.W.2d 163 (Mo.App.1978); Chavez v. Kennecott Copper Corp., 547 F.2d 541 (10th Cir.1977); Escobedo v. American Employers Insurance Co., 547 F.2d 544 (10th Cir.1977); Sandoval v. Salt River Project, 117 Ariz. 209, 571 P.2d 706 (1977); Ragsdale v. Watson, 201 F.Supp. 495 (W.D.Ark.1962); and Greenwait v. Goodyear Co., 164 Ohio St. 1, 128 N.E.2d 116 (1955). Therefore, Waldon has his exclusive remedy against Hartford under the Act. The trial court did not err in dismissing his claim against Hartford. Compare Beasley, supra, and Fireman’s Fund, supra, where this court held carriers were “wearing a different hat” as safety investigators.

III.

Last, Waldon contends that, should we hold his claims barred by the Act, the exclusivity provision will be rendered unconstitutional as violative of Ala. Const., Art. I, § 13. We disagree. The legislature has taken from employees, through the Workmen’s Compensation Act, the right to bring certain common law actions against employers and their workmen’s compensation insurance carriers. It is clear, however, there is a quid pro quo. The employee has been given the right, where there is a dispute regarding recovery from the carrier, to sue and recover damages for injuries related to employment; this, without proof of the employer’s negligent action in causing the injury. While he will, in many cases, recover less than might be secured in a comparable common-law action, such as a “bad faith” action for refusal to pay a claim, often, employees can recover under the Act where they .could not otherwise have recovered. It is thus clear there is no violation of Section 13 under the guidelines set forth by this court in Lankford v. Sullivan, Long & Hagerty, 416 So.2d 996, 1001 (Ala.1982).

The motions to dismiss presented to the trial court by J.A. Lett Construction Company and Hartford Insurance Group were properly granted. The trial court’s decision is due to be, and is hereby, affirmed.

AFFIRMED.

FAULKNER, ALMON and ADAMS, JJ., concur.

BEATTY, J., concurs in result.


author: PER CURIAM.

text:
    Woodrow MIZELL v. R.C. BATES and Bay Minette Church of Christ.
    81-1035.
    Supreme Court of Alabama.
    Aug. 5, 1983.
    W. Donald Bolton, Jr. and Thack H. Dyson of Foster, Brackin & Bolton, Foley, for appellant.
    Taylor D. Wilkins, Jr. of Wilkins, Bankes-ter & Biles, Bay Minette, for appellees.
   PER CURIAM.

Affirmed as to Appellee Bay Minette Church of Christ on the authority of Holliyan v. Gayle, 404 So.2d 31 (Ala.1981) (where movant for summary judgment meets pri-ma facie showing as to lack of genuine issue of material fact and non-moving party fails to produce any evidence, court must grant summary judgment if movant is entitled to judgment as matter of law under undisputed facts). Affirmed as to Appellee R.C. Bates on the authority of State Farm Mutual Automobile Insurance Company v. Boyer, 357 So.2d 958 (Ala.1978) (where entire closing argument was not included in record, context of what was said insufficient to justify conclusion of improper argument).

AFFIRMED.

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


author: BEATTY, Justice.

text:
    LOUISVILLE & NASHVILLE RAILROAD v. Ronald T. ATKINS.
    82-316.
    Supreme Court of Alabama.
    Aug. 5, 1983.

      Henry E. Simpson and Craig A. Alexander of Lange, Simpson, Robinson & Somer-ville, Birmingham, for appellant.
    Francis H. Hare, Jr., James J. Thompson, Jr., and John W. Haley of Hare, Wynn, Newell & Newton, Birmingham, for appel-lee.
   BEATTY, Justice.

This is an appeal by the defendant, Louisville and Nashville Railroad Company, from the grant of a new trial in an action brought against it by one of its employees under the Federal Employers’ Liability Act (FELA). We remand with directions.

The facts surrounding, the injury are straightforward and require little amplification. Plaintiff was a head brakeman working on a switching crew and, while standing on a switch tie, made a misstep, lost his footing, and fell into an adjacent drainage ditch. The gist of his negligence claim against the railroad was that it had failed to provide him with a safe place to work by failing to place sufficient ballast in the area of the switch ties, thus making the operation of the switch unsafe without level ground for walking. The defendant’s evidence, inter alia, was that plaintiff himself had worked at this site “at least 50 times” for three months prior to the accident, and that other employees had operated the switch on numerous occasions without mishap also.

Following trial, the case went to the jury under the doctrine of comparative negligence. The jury returned a verdict of $75,-000.00 for plaintiff and judgment was entered accordingly.

Thereafter the plaintiff moved for a new trial on the ground that the trial court, acting in accord with the decision of the United States Court of Appeals for the Fifth Circuit in Johnson v. Penrod Drilling Co., 510 F.2d 234 (5th Cir.1975), had erred in not permitting plaintiff’s expert witness to testify to plaintiffs loss based upon future inflationary trends. The motion stated that a decision rendered after this trial, to wit, Culver v. Slater Boat Co., 688 F.2d 280 (5th Cir.1982), had overruled that portion of Penrod holding that future inflationary trends were inadmissible. In his motion plaintiff also contended that the verdict was grossly inadequate. The trial court granted the plaintiff’s motion for a new trial, and the defendant appealed.

It should be noted that plaintiff’s motion did not contend that any error was committed by the trial court under the law as it existed at the time of this trial, which was concluded on September 16, 1982. Judgment on the verdict was entered on September 17,1982. Culver was issued on September 22, 1982, and, we are advised by defendant, is presently on rehearing. In that connection, we note that the United States Supreme Court, on June 15, 1983, decided Jones & Laughlin Steel Corp. v. Pheifer,-U.S.-, 103 S.Ct. 2541, 76 L.Ed.2d 768 (1983). The opinion in that case discusses several alternative approaches to the problem of considering future inflation, without decreeing that any one of those options should apply in all cases.

Defendant raises two issues on appeal to support its position that the trial court erred in granting a new trial to the plaintiff. These are:

(1) That the plaintiff did not object to the trial court’s instruction that the jury “not take into account any speculation concerning future inflation, deflation, or changes in the purchasing power of the dollar”; and

(2) That the trial court could not properly grant a new trial on the ground of inadequacy of damages.

I

Rule 51, A.R.Civ.P., provides:

“No party may assign as error the giving or failing to give a written instruction, or the giving of an erroneous, misleading, incomplete, or otherwise improper oral charge unless he objects thereto before the jury retires to consider its verdict, stating the matter to which he objects and the grounds of his objection....”

The record reveals that no objection was made by the plaintiff to the trial court’s instructions to the jury pertaining to future inflation. The record does disclose that the trial court did confer in chambers with counsel for both sides prior to the testimony of one Dr. Fred Johnson, who later testified for the plaintiff on the issue of damages. That discussion was not recorded; nevertheless, it appears from affidavits of counsel that the trial court gave as its view of the applicable law that Dr. Johnson’s testimony should be governed by the Penrod decision. Neither side was prevented from making a record of its position on that issue in open court; however, plaintiff never made an objection to the trial court’s instruction until after Culver was released.

In that posture, plaintiff contends that the trial court acted properly in correcting its erroneous instruction which followed Penrod by granting a new trial. Plaintiff maintains that the purpose of Rule 51 has been satisfied when the trial court has granted a new trial or, in the alternative, that a misleading jury instruction may be made the basis for a new trial without the necessity of an objection. As the basis for this proposition plaintiff cites us to American Service Mutual Ins. Co. v. Grizzard, 356 So.2d 191 (Ala.Civ.App.1978), and to Alabama Power Co. v. Robinson, 404 So.2d 22 (Ala.1981), and Herrington v. Central Soya Co., Inc., 420 So.2d 1 (Ala.1982), as having followed Grizzard.

In Grizzard, the trial court responded to an inquiry from the jury by giving them an instruction that was incorrect at that time. Later the trial court granted a new trial. In commenting on this action, the Court of Civil Appeals stated:

“Rule 51, ARCP, contemplates a situation in which an appellant’s appeal is based on the trial court’s erroneous, misleading or improper oral charge. In that case, an objection is required in order to allege such oral charge as error. However, a misleading charge to the jury may be a basis for a new trial without the necessity of objecting to the charge. See Montgomery City Lines, Inc. v. Scott, [248 Ala. 27, 26 So.2d 200 (1946)]; Proctor v. Coffey, [227 Ala. 318, 149 So. 838 (1933)]; Rule 51, ARCP.” 356 So.2d at 193-94.

It bears repetition at this point that the trial court’s instruction on the application of future inflation was neither incorrect nor misleading when it was given to the jury. Accordingly, it is unnecessary here to consider whether the authorities cited as support for the analysis of Rule 51 by the Court of Civil Appeals are correct. Because the instruction as given was the correct law at the time it was given, the giving of it could not be successfully assigned as error on appeal. Rule 51, A.R.Civ.P. Those instructions “became the law of the case by which the jury was bound, and even had the instruction been erroneous, ... the matter could not be made a predicate for error by first taking notice thereof on a motion for a new trial.” Loch Ridge Construction Co., Inc. v. Barra, 291 Ala. 312, 320, 280 So.2d 745, 751 (1973). Indeed, the Court of Civil Appeals has stated:

“[T]o allow the grounds in support of the objections to be assigned in the motion for new trial would destroy the very purpose of the rule.... We do not believe Rule 51 authorizes nor was intended to authorize a practice whereby grounds offered in support of objections ... may be assigned as late as a motion for new trial...." Hogan v. Alabama Power Co., 351 So.2d 1378, 1385 (Ala.Civ.App. 1977), cert. den., 351 So.2d 1388 (Ala.1977).

Plaintiff argues, moreover, that we should not apply Rule 51 in this case, but should apply certain exceptions recognized in federal cases. He asserts that the failure to object may be disregarded “if the party’s position has previously been clearly made to the Trial Court and it is clear that further objection would be unavailing.” However much the plaintiffs citations of authority for this principle apply in the specific instances he cites, that principle can have no application here. Atkins asserts only that his position on evidence of future inflation was presented during an in-chambers conference. We have alluded to this unrecorded conference. There is no record of counsel’s objection to the trial court’s views on the applicability of future inflation evidence under Penrod, even though the trial court expressly recognized the right of counsel to record their positions in open court. Plaintiff here did not even submit proposed instructions on future inflation. What the record shows is that when the court announced that it would not permit Dr. Johnson, the expert, to testify as to future inflation, plaintiff’s counsel, rather than objecting, stated: “Then Judge I won’t go into future inflation, and I think I can get his testimony in another way.” Cf. Stewart v. Ford Motor Co., 553 F.2d 130 (D.C.Cir.1977), with Monomoy Fisheries, Inc. v. Bruno & Stillman Yacht Co., Inc., 625 F.2d 1034 (1st Cir.1980) (exception applied in former case after trial court’s refusal of requested instructions, but not followed in latter case). Indeed, plaintiff’s position during trial conformed to Penrod. For example, after defendant objected to the testimony of plaintiff’s own economics expert, an in camera conference was held on the defendant’s • motion to exclude the testimony of that expert on the ground that it violated the rule of Penrod. During that conference, the trial court commented: “He [the expert] says he does not take future inflation into consideration in doing this thing.” Plaintiff’s counsel responded: “That’s exactly it.” In other words, it is apparent that plaintiff took the position that his expert’s testimony did not predict future inflation. Under those circumstances it cannot be established that plaintiff informed the court of a contra position favoring the introduction of future inflation.

Plaintiff contends, additionally, that the trial court has committed “plain error” by instructing against an award based upon future inflation in conformity to Penrod. Under this view plaintiff apparently does not argue that the trial court’s instruction was error when given. Rather, plaintiff argues that the trial court plainly erred when it failed to anticipate that the Penrod rule would later be changed. See Lang v. Texas & Pacific R. Co., 624 F.2d 1275 (5th Cir.1980), in which the appeals court held that it was not error for the trial court to refuse to give a requested charge on the effect of income tax on an award of damages, the decision to refuse the charge being based upon law at the time, even though after trial and during appeal the United States Supreme Court changed the law on the subject. We conclude that no “plain error” was present here, nor any other “error” in the trial court’s instruction to the jury on the effect of future inflation.

Nor can we agree with plaintiff that Culver authorizes retroactive application in this case by way of a new trial. The Culver court expressly applied its holding to “cases (i) now being tried, (ii) tried hereafter and (iii) those heretofore tried and now on, or subject to appeal in which the issue has been properly and adequately raised.”. (Emphasis added.) As we have shown above, the issue of future inflation was not properly raised in the court below, and thus the retroactivity aspect of Culver has no application here.

Moreover, this Court’s decision in Trimble v. Bramco Products, Inc., 351 So.2d 1357 (Ala.1977), perforce applies under these circumstances. In that case, a plaintiff had made a claim in strict liability against Ford Motor Company but not against another defendant, Mitchell Motors. Acting under the law as it then existed, the trial court dismissed the claim. Following the trial, this Court adopted the Alabama Extended Manufacturers’ Liability Doctrine. Plaintiff then moved for a new trial, whereupon the trial court granted a new trial against both Ford Motor Company and Mitchell Motors. On appeal this Court affirmed the grant of the new trial against Ford, but reversed the trial court’s decision as to Mitchell Motors with this explanation at 1362:

“At no point in the pleadings, the pretrial order or elsewhere in the record has the plaintiff attempted to assert a claim for relief against Mitchell Motors based upon a theory of strict liability in tort or the Alabama Extended Manufacturer’s Liability Doctrine which, of course, was not stated until after this case was tried. Atkins v. American Motors Corp., [335 So.2d 134 (Ala.1976)]; Casrell v. Altec Industries, Inc., [335 So.2d 128 (Ala.1976)]. Although Jett v. Honda [339 So.2d 66 (Ala.1976)] reversed the trial court in granting defendants’ motion to dismiss and remanded the cause for reconsideration in light of Casrell and Atkins, supra, Jett v. Honda (like Casrell and Atkins) had not been tried at the time appellate review was sought. Additionally and significantly, the complaint which was dismissed sought relief on the basis of ‘strict liability in tort.’ This case has been tried to a jury. Every theory of liability advanced by the plaintiff against Mitchell has been tried. A jury has rendered a verdict in Mitchell’s favor and judgment has been entered thereon. Although the Casrell and Atkins decisions do have some retroactive effect, such retroactivity cannot extend to controversies between parties which have been adjudicated. The principle of res judicata is predicated upon the doctrine that litigation must come to an end. Any issue which has been adjudicated, or which could have been adjudicated, is by that doctrine barred from further litigation. Heiser v. Woodruff, 327 U.S. 726, 66 S.Ct. 853, 90 L.Ed. 970 (1946). That principle, so fundamental to our jurisprudence, would be violated if the law as it evolves to meet new conditions of society, were made retroactive to re-open, for another trial, matters laid to rest under theories of liability existing at the time they were tried. See Restatement Judgments, § 65(1).” (Emphasis added.)

Accordingly, the trial court could not have granted a new trial on the basis of a change in the law of the Penrod case.

II

The defendant argues that the trial court could not properly grant a new trial on the ground of inadequacy of damages. On this issue the plaintiff in brief states that his “claim for lost future wages represents the largest aspect of his entire claim for compensation” and is “the single most important element for the plaintiff’s damages.” While that position may be true, it is important to note as well that FELA cases are tried under the doctrine of comparative negligence, and, as the trial court charged the jury, “damages shall be diminished ... in proportion to the amount of negligence attributable to such employee.”

The defendant contended at trial that plaintiff’s negligence contributed to his injuries, and it must be noted that plaintiff sought recovery for injuries as well as for lost future wages. His fall occurred in broad daylight at a place where he had been on some fifty other occasions, and at a switch he had thrown five other times that day. Plaintiff testified that he made a misstep while stepping backward, and fell backwards and landed on his head in the ditch. From the bottom of the ditch to the top of the switch tie from which he fell is 28 inches. He had previously taken a safety rules examination on rules which stated in part: “A large proportion of injuries are the result of falling, slipping, tripping, et cetera. These injuries occur at all times and under all circumstances.” Defendant’s evidence showed that others had previously operated this switch often, without mishap.

The day after his fall, plaintiff began a course of treatment which ultimately resulted,in operations which fused the fourth and fifth spinal discs. Medical evidence of plaintiff’s diagnoses and treatment was extensive. Plaintiff’s first operation occurred on November 1, 1979, and the second was performed on June 18, 1980. Although he was discharged from the hospital on the sixth day following his second surgery, plaintiff continued to complain of pain and was referred to a psychiatrist. His neurosurgeon estimated plaintiff’s “permanent partial disability as 20 percent relative to disability of the body function as a whole but related to his strain of the cervical spine.” Nevertheless, on January 5, 1982, plaintiff was authorized by his physician to return to work as a brakeman. He did return to work on March 1, 1982, and worked regularly when work was available.

Plaintiff made no claim for medical or any other expenses. The evidence disclosed that plaintiff did not work for the interval of time between the date of his injury, June 22, 1979, and his release to return to work, or approximately thirty and one-half months. During that interval the three employees above and below plaintiff on the seniority roster earned an average of $54,-340.77 in gross earnings, subject to federal and state income taxes.

In this case the plaintiff’s motion for a new trial contained numerous grounds relating to the Penrod and Culver cases. However, the motion for a new trial also contained the following ground: “10. For that the verdict of the jury was grossly inadequate.” This ground is the equivalent of “contrary to the evidence of damages.” In this ruling granting a new trial, the trial court did not specify any ground; the order reads only that “Plaintiff’s motion for a new trial is granted.” Nevertheless, the issues and arguments of counsel predominantly, though not exclusively, center upon the Penrod and Culver decisions. Therefore, this Court considers it necessary to remand this cause to the trial court to enable that court to advise this Court as to whether or not it granted the plaintiff’s motion for a new trial on the basis of the Culver decision. It is so ordered.

REMANDED WITH DIRECTIONS.

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


author: JONES, Justice.

text:
    Mitchell DAVIS, Jr., et al. v. Roscoe TOWNSEND, et al.
    82-613.
    Supreme Court of Alabama.
    Aug. 5, 1983.

      Harold Howell of Howell, Sarto & Howell, Prattville, for appellants.
    Theron 0. McDowell, Jr., Prattville, for appellees.
   JONES, Justice.

This, case arose from a property ownership dispute in Autauga County. Plaintiffs/Appellees, undisputed record title holders, brought a quiet title action against Defendants/Appellants, who claimed ownership through the doctrine of adverse possession. The trial court, after hearing conflicting ore tenus testimony, quieted title in Plaintiffs. Defendants appeal, contending that the trial court erred as a matter of law in excluding from evidence the unprobated and unrecorded will through which they claimed color of title, and, additionally, that the judgment was against the great weight and preponderance of the evidence. We affirm.

Gillis Townsend, married to Bama Townsend, acquired eighty acres of land by warranty deed in June 1920. Bama Townsend’s sister gave birth to Beatrice Davis while residing on this property. Gillis and Bama raised Beatrice as their own child. Gillis Townsend died intestate on July 9, 1940, and the property descended to his heirs-at-law, subject to his widow’s rights of dower and quarantine. Bama Townsend continued to reside on the property, along with her brother, Amos Goodson, until she died, testate, on February 8, 1951. Plaintiffs/Appelleés (the Townsend heirs) claim ownership through Gillis Townsend, while Defendants/Appellants (the Davis heirs) claim ownership through Beatrice Davis.

Beatrice Davis married and moved away from the property, but later returned and maintained a residence on the homeplace for about ten years. Amos Goodwin was the last person to live on the property, residing first by permission of Bama Townsend, and then, allegedly, by permission of the Townsend heirs. Amos died in 1965, and Beatrice died in 1966. Shortly thereafter, the homeplace became uninhabitable and was demolished.

The record shows Bama Townsend paid taxes on the property in 1951 and 1952, and Amos Goodson paid property taxes for the years 1953 through 1966. John DeRamus paid property taxes, in the name of the Gillis Townsend estate, from 1967 through 1982. Property taxes were also paid from 1967 through 1982 in the name of the Davis estate.

The evidence, in essence, revealed: 1) The property consisted primarily of wooded acreage and was not farmed; 2) the Davis heirs, and at least one other person with their permission, cut firewood on certain portions of the property several times; 3) Beatrice Davis and her heirs occasionally visited and hunted on the property; and 4) the Davis heirs allowed someone to take old lumber from the homeplace on one occasion. The evidence also showed that the Townsend heirs entered the land periodically, picked scuppernongs, allowed people to cut firewood, attempted to sell timber, and exercised other similar possessory acts.

The dispositive legal issue is whether the trial court erred in refusing to admit into evidence to prove color of title under § 6-5-200 the will of Bama Townsend. The trial judge refused to admit the will because it was not recorded. Code 1975, § 6-5-200, states, in relevant part:

“(a) Adverse possession cannot confer or defeat title to land unless:
“(1) The party setting it up shall show that a deed or other color of title purporting to convey title to him has been duly recorded in the office of the judge of probate of the county in which the land lies for 10 years before the commencement of the action;
“(2) He and those through whom he claims shall have annually listed the land for taxation in the proper county for 10 years prior to the commencement of the action if the land is subject to taxation; or
“(3) He derives title by descent cast or devise from a predecessor in the title who was in possession of the land.” (Emphasis added.)

The Townsend heirs do not dispute the Davis heirs’ definition of color of title, that being a writing which, in appearance, purports to transmit title or the right of possession, but which, in reality, does not. Bowles v. Lowery, 181 Ala. 603, 62 So. 107 (1913). Rather, the Townsend heirs contend that § 6-5-200 requires the color of title document to have been “duly recorded.” Therefore, they say, because the will of Bama Townsend has never been probated or recorded, it does not furnish color of title, is without any legal force or effect, and was properly excluded by the trial judge. We agree.

Ala.Code, 1940, Tit. 61, § 43 (the applicable statute), states: “Wills shall not be effective unless filed for probate within five years from the date of the death of the testator.” Bama Townsend’s will was not filed for probate within the requisite statutory period, and, therefore, cannot be effective. Furthermore, the Court has held: “A will is ineffective until duly probated. No court can take notice of or give effect to a will until probated.... ” (Emphasis added.) Caverno v. Webb, 239 Ala. 671,196 So. 723 (1940); and in Sheridan v. Schimpf, 120 Ala. 475, 24 So. 940 (1898):

“Section 1008 [analogous to Code 1975, § 43-1-37 and Code 1940, Tit. 61, § 34] does not in terms authorize the registration or record of wills and conveyances; it simply provides that unless recorded within five years from the entry and possession of the life tenant, such wills or conveyances are inoperative as against the creditors of the tenant for life in possession. There are other statutes, which in express terms authorize the registration of certain conveyances. While technically speaking a will may be a conveyance, our statutes relating to the registration and record of wills and conveyances seem to preserve an evidence distinction between the two. The only statute then that we have which would authorize the recording of a will is section 4279 (Code of 1886, § 1982) [now Code 1975, § 43-1-46]. And under this section a will is not authorized to be recorded until it has been probated. Construing these several sections in pari materia, we are constrained to hold that a will is not such an instrument, the recording of which, under our registration statutes, would operate to give constructive notice, before probate of the same.” 120 Ala. at 480, 24 So. 940.

Having determined that the trial judge did not err in excluding the unprobated and unrecorded will, we turn to the remaining issue: whether, under the ore ten us standard of review, sufficient evidence existed upon which the trial judge could conclude the Davis heirs did not meet their heavy burden of proving all the requisite elements of an adverse possession claim. Close examination of the record reveals sufficient evidence to support the trial judge’s findings.

In Casey v. McIntosh, 361 So.2d 1040, 1042 (Ala.1978), the Court stated:

“In an adverse possession case, the burden of proof rests upon the party who asserts it, Ratliff v. Giorlando, 343 So.2d 506, Ala.Sup. (1977), to prove that the possession is actual, hostile, open, notorious, exclusive and continuous for the statutory period. Smith v. Claybrook, 349 So.2d 1087, Ala.Sup. (1977). This is a heavy burden requiring substantial evidence. Every presumption is in favor of the holder of the legal title. Prestwood v. Hunt, 285 Ala. 525, 234 So.2d 545 (1970); there is no presumption against the holder of the legal title. Jones v. Mitchell, 258 Ala. 651, 64 So.2d 816 (1953).”

The evidence concerning adverse possession conflicted and furnished a basis upon which the trial court could have reasonably concluded that the possessory acts alleged by the Davis heirs did not constitute adverse possession. The result reached by the lower court is not palpably wrong or manifestly unjust. Therefore, the presumption of correctness accorded the trial court’s judgment under our ore tenus standard of review is not overcome. The judgment is due to be, and hereby is, affirmed.

AFFIRMED.

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

      . Our holding addressing the effect of an unrecorded will respecting color of title should not be understood as indicating that the result would be different if the will had been recorded, but not probated. We need not, and do not, address the issue whether an unprobated will, recorded under Code 1975, § 43-1-50, or otherwise, would constitute color of title under § 6-5-200.


text:
    Thomas O. PATTON v. CLEVELAND CONSOLIDATED, INC.
    Civ. 3265.
    Court of Civil Appeals of Alabama.
    Aug. 11, 1982.
    Rehearing Denied Sept. 1, 1982.

      Thomas E. Davis of Burns, Shumaker & Davis, Gadsden, for appellant.
    Ralph D. Porch of Merrill, Porch, Doster & Dillon, Anniston, for appellee.
   EDWARD N. SCRUGGS, Retired Circuit Judge.

This is a workmen’s compensation case.

The trial court, in substance, granted the employer’s rule 59, A.R.Civ.P., motion thereby altering or amending its prior judgment by drastically reducing the award of compensation to the employee. An appeal was duly taken by the employee who contends that such judgment of the trial court was a nullity since the employer’s post-trial motion had previously been denied by operation of law under the mandate of rule 59.1. We reverse and render.

The short and undisputed facts which are pertinent to the present problem are as follows:

November 20,1981 — The final workmen’s compensation judgment was rendered and entered.
December 8, 1981 — A motion for a new trial and for amendment of the final judgment was filed by the defendant.
December 18, 1981 — The defendant filed its amendment to its motion for a new trial and for amendment of the judgment.
March 10, 1982 — The trial court rendered and entered a judgment which amended its November 20, 1981 final judgment.

The presently applicable portions of rule 59.1 state that no post-trial motion filed pursuant to rule 59 “shall remain pending in the trial court for more than 90 days, ... A failure by the trial court to dispose of any pending post-trial motion within the time permitted hereunder ... shall constitute a denial of such motion as of the date of the expiration of the period.” (Emphasis supplied.)

If the ninety day period is computed from the date of the filing of the original motion on December 8, the March 10 judgment came too late and is void. However, if such period commenced to run as of the filing of the amended motion on December 18, the March 10 judgment was timely and is valid.

A rule 59 motion pends from the date it is filed until it is disposed of either by action of the trial court or by operation of rule 59.1. State v. Wall, 348 So.2d 482 (Ala.1977). Accordingly, the motion here was pending as of December 8 and the ninety day countdown commenced then. The filing of the amendment thereto on December 18 did not extend the time within which the ninety day period started to run. The trial court failed to rule on the motion within ninety days from December 8 and the defendant’s motion, as amended, was automatically overruled as a matter of law by operation of rule 59.1. Thereafter, the trial court was without authority to enter any valid judgment in connection therewith. March 8, 1982 was the ninetieth day that the motion was pending and any judgment rendered thereafter was a nullity and void. Coosa Marble Co., Inc. v. Whetstone, 294 Ala. 408, 318 So.2d 271 (1975); Crenshaw v. Crenshaw, 405 So.2d 38 (Ala.Civ.App.1981).

The employer cites as its principal authority the case of Thompson v. Keith, 365 So.2d 971 (Ala.1978), but we construe both the plurality and the concurring opinions therein to agree that, when the original motion was denied, the amendment was also denied. That reasoning would here mean that the original motion and the amendment thereto were both overruled at the same time by virtue of rule 59.1 since the trial court did not dispose of them within ninety days of December 8, 1981. Any other holding would be an unauthorized extension of the pendency of the motion beyond the ninety day limit established by rule 59.1. We must accept the rule as it is presently promulgated. We have no authority to alter it or to add to rule 59.1. Such alteration or addition would be essential in order to hold that the ninety day period did not commence until the filing of the December 18 amendment.

Since the trial court’s jurisdiction to render its March 10, 1982 judgment had expired, that judgment was void. Accordingly, we are required to enter a reversal herein and do hereby set aside the March 10, 1982 judgment of the circuit court in this cause as being a nullity and void. Ala.Code § 12-22-70 (1975); Gordon v. Halstead, 283 Ala. 578, 219 So.2d 629 (1969).

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

REVERSED AND RENDERED.

All the Judges concur.


text:
    Ex parte CLEVELAND CONSOLIDATED, INC., a Corporation (Re Thomas O. PATTON v. CLEVELAND CONSOLIDATED, INC.)
    81-1041.
    Supreme Court of Alabama.
    June 3, 1983.
    Ralph D. Porch of Merrill, Porch, Doster & Dillon, Anniston, for petitioner.
    Thomas E. Davis of Burns, Shumaker & Davis, Gadsden, for respondent.
   BEATTY, Justice.

We granted certiorari in this case to determine the effect of Rule 59.1, Alabama Rules of Civil Procedure, when different versions of a post-trial motion are filed at different times. We reverse and remand to the Court of Civil Appeals, 435 So.2d 1283, for further proceedings.

The facts are fully disclosed in the opinion of the court below. Petitioner argues before us that the December 18 “amendment” was in reality a new motion and that the 90-day period of Rule 59.1 should be applied separately for each motion, as was done in Spina v. Causey, 403 So.2d 199 (Ala.1981). In that case, which was not cited to the Court of Civil Appeals, the losing parties filed a motion under Rule 50 for judgment notwithstanding the verdict. Five days later the same parties filed a motion under Rule 59 for a new trial. Since both motions were filed within 30 days of the judgment, making each timely under Rules 50 and 59, we applied the 90-day time limit separately to each motion, concluding that the trial court “did not act on either motion in the prescribed time limit.” Id. at 201. See also Thompson v. Keith, 365 So.2d 971, 973 (Ala.1978) (if an “amended motion” filed more than 30 days after judgment is considered as a separate motion, then it is untimely and cannot serve to commence a new 90-day period).

Cleveland Consolidated, Inc. (Cleveland), properly urges that we consider the substance of the December 18 pleading, not its form as an amendment. According to Cleveland, the substance of this second pleading is a separate motion because it contains a different ground for the relief sought. We disagree. The motion under Rule 59 filed December 8, 1981, sought a new trial or alternatively an amendment of the judgment based on several grounds, including a claim that at least part of Patton’s disability was attributable not to his employment with Cleveland but to injuries occurring both before and after that employment. Ten days later Cleveland filed the December 18 “amendment,” which reads as follows:

“Comes now Cleveland Consolidated, Inc., a corporation, defendant in the above styled cause and amends its motion for new trial and for amendment of judgment by addition of the following:
“(1) Defendant has now discovered evidence to the effect that Thomas O. Patton filed in the Circuit Court of Etowah County, Alabama, a suit for compensation growing out of an injury while employed with Sanford Construction Company in civil action no. 20-568 on January 15, 1974, and that there was an Agreement of Parties, Findings of Facts, and Law Conclusions and Agreed Judgment entered in said Court resulting in a prior injury to plaintiff’s back which at that time resulted in a 20% permanent partial disability to the body as a whole, causing the plaintiff to suffer a 20% loss in his ability to earn in his disabled condition. A judgment in this case was entered on July 22,' 1975, by the Honorable George Murphy. A copy of said pleadings being attached hereto as Exhibit A.
“Defendant formally requests the Court to take judicial knowledge of this case and its findings insofar as the same pertain to the present disability of the plaintiff. This information was discovered on Thursday, December 17, 1981.”

Although petitioner urges this Court to consider its respective motions as different in substance, we believe the Court of Civil Appeals was correct in viewing the motion of December 18 as an amendment to petitioner’s motion for a new trial which was filed on December 8. Such a conclusion, however, does not require a finding adverse to the petitioner’s cause. For the purposes of Rule 59.1, petitioner could have filed its post-trial motion at any time within 30 days after judgment. The fact that it had filed an earlier motion for a new trial on December 8 did not render the amendment, filed on December 18, untimely. Either motion could have been filed later, in fact, up to 30 days after judgment. Rule 59.1 affects only the length of time certain post-trial motions may remain pending in the trial court. Therefore, when petitioner filed his timely amendment on December 18, it was then pending, and the time under Rule 59.1 began to run from that date. The trial court’s March 10 amended judgment was well within the 90-day period following December 18.. Accordingly, that judgment was timely. Cf. Thompson v. Keith, 365 So.2d 971 (Ala.1978) (amended motion for new trial filed more than thirty days after judgment did not postpone the running of time under Rule 59.1). See also Alabama Farm Bureau Mut. Cas. Ins. Co. v. Boswell, 430 So.2d 426 (Ala.1983).

Having found the appeal timely, we must remand this cause to the Court of Civil Appeals to enable that Court to consider the other issues presented by the appeal. It is so ordered.

REVERSED AND REMANDED.

All the Justices concur.

      . Rule 59.1: “No post-trial motion filed pursuant to Rules 50, 52 or 59 shall remain pending in the trial court for more than 90 days, unless with the express consent of all the parties, which consent shall appear of record, or unless extended by the appellate court to which an appeal of the judgment would lie, and such time may be further extended for good cause shown. A failure by the trial court to dispose of any pending post-trial motion within the time permitted hereunder, or any extension thereof, shall constitute a denial of such motion as of the date of the expiration of the period.”


text:
    Thomas O. PATTON v. CLEVELAND CONSOLIDATED, INC.
    Civ. 3265.
    Court of Civil Appeals of Alabama.
    July 13, 1983.
   EDWARD N. SCRUGGS, Retired Circuit Judge.

The prior opinion of this court, 435 So.2d 1283, has been reversed and remanded by the supreme court. On remand to this court, and in compliance with the supreme court’s opinion of June 3, 1983, 435 So.2d 1285, this cause is now affirmed.

AFFIRMED.

All the Judges concur.


author: WRIGHT, Presiding Judge.

text:
    Dr. W. Graham WOOD v. CENTRAL BANK OF THE SOUTH.
    Civ. 3299-X.
    Court of Civil Appeals of Alabama.
    Nov. 3, 1982.
    Rehearing Denied Dec. .8, 1982.
    Certiorari Denied Feb. 25, 1983 Alabama Supreme Court 82-255.

      George W. Royer, Jr. of Butler, Potter & Royer, Huntsville, for appellant.
    William W. Sanderson, Jr. of Lanier, Shaver & Herring, Huntsville, for appellee.
   WRIGHT, Presiding Judge.

This is an appeal from a judgment rendered against defendant Dr. Graham Wood and for plaintiff Central Bank of the South for breach of an indemnity agreement contained in an instrument signed by the defendant wherein he sought to have payment stopped on a cashier’s cheek purchased by the defendant and payable to a third party. The case below was heard ore tenus.

In October of 1978 Dr. Wood purchased cashier’s check number 001973 in the amount of $6,000 from the Gurley Branch of Central Bank of the South (Central) payable to Ken Walker and delivered it to Walker.

In September of 1979 the bank’s branch manager informed Wood by telephone that the check to Walker was outstanding. Wood subsequently signed a form prepared by the bank requesting that payment be stopped on the check and a replacement check issued. The nature of the agreement between Wood and Central is the subject of this dispute. In the agreement, Wood represented to Central that the cashier’s check was lost and that he was entitled to the proceeds thereof. It also contained the following pertinent provisions:

“The undersigned hereby requests you to stop payment of said instrument and that you ... deliver to the undersigned a replacement instrument....
“In consideration of your compliance with said request in reliance upon the above representations, the undersigned, W.G. Wood, M.D. principal ... hereby agree(s) to indemnify, keep indemnified and save you harmless from and against any and all claims, demands, actions, proceedings, judgments, lawsuits, damages, counsel fees, payments, expenses and liabilities whatsoever which you, at any time shall or may sustain or incur by reason of: (a) your having complied with said request; or (b) any claims or demands, whether groundless or otherwise, which may be made with respect to said instrument; or (c) your declining to hon- or said instrument; or (d) the payment, honor or transfer or credit, which you may give, make or permit with respect to said instrument, whether through inadvertence, accident, oversight, neglect or otherwise. The liability of the undersigned principal and surety under this agreement shall accrue forthwith upon the presentation for payment of the original Instrument issued by [the bank] and claimed to have been lost, stolen or destroyed .... ”

In response to Wood’s execution of statement of loss and agreement of indemnity, Central’s branch manager notified the other offices of the alleged loss and issued to Wood its cashier’s check for $6,000 as a replacement of the “lost” cheek. Wood subsequently received payment of the latter check.

About April of 1980 Walker attempted to cash the original cashier’s check at his bank in Pennsylvania. The bank refused to cash the check, apparently because Central refused to verify it. Walker then called Central and asked why the check could not be cashed. He was informed of the stated loss and directed to contact Wood. Walker contacted an attorney and was told that the check should be payable. He then deposited it in his checking account and it was honored through normal banking channels.

On or about September 19, 1980, internal auditors for Central discovered that the check to Walker had been paid. Wood was informed that the check had been cashed and that according to the agreement he would have to repay the bank $6,000. Wood refused.

On January 5, 1982, Central initiated an action against Wood alleging that he owed the bank $6,000 under the September 11, 1979, indemnity agreement. The bank also claimed attorney’s fees and interest due. Judgment was rendered for the bank for $6,000 on April 21, 1982. On May 21, 1982, Woo'd filed notice of appeal. Central cross-appeals, claiming error in the failure to award interest and attorney’s fees.

The first issue is whether the court abused its discretion in finding for the plaintiff. In cases heard ore tenus, the judgment will be reversed only where it is plainly and palpably wrong, or where the trial court misapplied the law to the facts. Alabama Farm Bureau Mutual Insurance Co. v. Davis, 354 So.2d 15 (Ala.Civ.App.1978). There must be no credible evidence in the record to support the court’s findings. Gann & Lewis Roofing Co. v. Sokol, 359 So.2d 815 (Ala.Civ.App.1978). If there is disputed evidence, the trial court’s findings of fact are presumed correct. Campbell v. Campbell, 371 So.2d 55 (Ala.Civ.App.1979). We have carefully reviewed the record and find no abuse of discretion. Although the evidence is often in conflict, there is evidence to support the trial court’s findings. Under the presumption of correctness given cases of this nature, we find no abuse of discretion in the trial court’s findings of fact.

Wood contends that the trial court misapplied the law to the facts in two instances: (1) in granting judgment for the bank on an agreement which the bank itself breached; and (2) in granting judgment for the bank on an agreement the bank intentionally breached.

Wood claims that Central breached the agreement by making payment on the cashier’s check and therefore is precluded from recovering on that agreement. This argument hinges upon the court’s interpretation of the agreement.

A cashier’s check is the obligation of the bank which issues it; it is not an item payable from a customer’s account within the meaning of § 7-4-403, Code of Alabama 1975. A cashier’s check is accepted in advance by the act of its issuance and is not subject to a stop payment order. Walker v. Sellers, 201 Ala. 189, 77 So. 715 (1918); Dziurak v. Chase Manhattan Bank, N.A., 44 N.Y.2d 776, 406 N.Y.S.2d 30, 377 N.E.2d 474 (1978). Such a rule is necessary to insure the public’s confidence in and reliance upon our banking system. Moon Over the Mountain, Ltd. v. Marine Midland Bank, 87 Misc.2d 918, 386 N.Y.S.2d 974 (N.Y.Civ.Ct.1976).

Wood contends that whether or not the bank could legally ignore his stop payment order is irrelevant, since Central agreed to stop payment in a separate, written instrument. Central now seeks to enforce the indemnity provision of that agreement, and Wood contends the agreement should fail for lack of consideration. Wood argues that Central did not keep its end of the bargain, and therefore should not be able to force him to keep his end.

Central contends that the payment to Wood of the $6,000 was adequate consideration for the agreement. We agree. The instrument in question clearly states that the replacement check is consideration for the indemnity agreement, along with the agreement to stop payment.

Central’s payment of the cashier’s check did not constitute a breach of the agreement. The agreement must be analyzed in terms of the nature of a cashier’s check, and it is in the nature of a cashier’s check that the bank is not free to refuse payment thereon when the check is presented by the payee or holder in due course at another bank and arrives at the payor bank in regular course of business. Moon Over the Mountain, Ltd. v. Marine Midland Bank, supra. Furthermore, by the clear and unequivocal terms of the agreement, Wood’s liability accrued “forthwith upon the presentation for payment” of the original check. It is clear that the “stop payment” agreement was founded upon a “lost, stolen or destroyed” check. The evidence is undisputed that the check was purchased by Wood and presented to the payee Walker in due course of business. The check was not, in fact, lost, stolen or destroyed. Insofar as Central could do so, payment was stopped through notice to its .offices.

Wood further contends that the agreement was not intended to invoke his liability upon an intentional payment of the check by Central Bank. We find that the language of the agreement supports the conclusion that Wood’s obligation to indemnify would arise in the event the alleged “lost check” was presented and paid in any event. The agreement states that Wood would be liable for any payment made on the check, “whether through inadvertence, accident, oversight, neglect or otherwise.” Such an agreement recognizes the absolute liability of Central to honor its cashier’s check when presented by the payee in the ordinary course of business.

Wood contends that such an agreement violates both the Uniform Commercial Code and the common law. Wood cites §§ 7-4-103, -403, Code 1975, in support of his contention. We do not agree with that contention. It is clear from § 7-4-403 and its official comment that there is no right to stop payment on certified or cashier’s checks, for they are direct obligations of the bank and not of the customer. Thus there would seemingly be no barrier to an agreement such as is before us. In such an instance the bank was not required by statute to stop payment, but we perceive no reason why it should not attempt to aid its customer upon a claim of loss, theft or destruction, particularly if the bank replaces such check upon agreement for indemnity if the check later turns up and is paid or forced to be paid by the drawee or a holder in due course.

Wood cites Commercial Bank v. Hall, 266 Ala. 57, 94 So.2d 198 (1957) in support of his contention that the agreement is violative of public policy under the common law. The case cited is inapposite. Commercial Bank involved a stop payment order on an uncertified check. None of the cases cited by Wood involve a certified or cashier’s check. The issue presented here is not a breach of an agreement to stop payment of a check written against a customer’s account, but rather whether Wood is liable to indemnify Central for payment to him of $6,000 upon his representation that the cashier’s check was lost.

We find sufficient evidence to support the judgment in favor of Central. Finding no misapplication of the law to the facts, we affirm that judgment.

Central cross-appeals, contending two errors below: (1) failure to grant attorney’s fees as provided in the agreement, and (2) failure to grant interest due on the $6,000 at six percent from September 19, 1980, through the date of judgment. Central contends that the indemnity agreement enforced by the court below specifically provided that Wood would be liable for attorney’s fees. We consider the terms and purpose of the agreement as to payment of attorney fees relate to those fees incurred by Central in defending against claims or actions arising from its stopping or denying payment of the check when it might be presented for payment. There were no such fees or expenses incurred by Central. The trial court may have considered that part of the agreement to be ambiguous. In such case, it was proper to construe it most strictly against its author, Central. Jewell v. Jackson & Whitsitt Cotton Co., 294 Ala. 112, 313 So.2d 157 (1975); Wiregrass Construction Co. v. Tallapoosa River Electric Cooperative, Inc., 365 So.2d 95 (Ala.Civ.App.1978). We affirm the decision of the trial court not to award attorney’s fees.

Finally, Central contends the trial court committed reversible error in not awarding interest on the judgment. Section 8-8-8, Code 1975 states:

“All contracts, express or implied, for the payment of money, or other thing, or for the performance of any act or duty bear interest from the day such money, or thing, estimating it at its money value, should have been paid, or such act, estimating the compensation therefor in money, performed.”

Under this statute, pre-judgment interest runs only on such sums as are certain or are capable of being made certain. Roe v. Baggett Transportation Co., 326 F.2d 298 (5th Cir.1963). Three general rules have been laid out for determining the allowance of interest in Alabama: “(1) The amount due must be certain; (2) the time when it is due must be certain; (3) the amount due and time of payment must be known to the debtor.” Grand Bay Land Co. v. Simpson, 207 Ala. 303, 306, 92 So. 789, 791 (1922) citing Perley, Law of Interest 25-32 (citation omitted). Here, the amount due, $6,000, was certain as of the moment Central paid the check and made demand upon Wood. The indemnity agreement provided that Wood would be liable upon presentation for payment of the original check. Interest was therefore due from the date that Dr. Wood was notified of his liability, September 19, 1980. The trial court was in error in not awarding interest on the $6,000 from that date.

The judgment rate at the time this cause of action accrued was six percent. Five hundred seventy-nine days elapsed between September 19, 1980, and April 21, 1982, the date of the judgment. The court below should have awarded interest in the amount of $571.07 for that period of time. As authorized by § 12-22-70, Code 1975, this court renders judgment in favor of Central and against Wood in the sum of $6,571.07.

Central Bank has moved this court for attorney’s fees on appeal. In view of the trial court’s judgment and our affirmation thereof, the motion is denied.

AFFIRMED IN PART, REVERSED IN PART AND RENDERED.

BRADLEY and HOLMES, JJ., concur.


text:
    Gertrude H. ABDO v. Mike M. ABDO.
    Civ. 3362.
    Court of Civil Appeals of Alabama.
    Nov. 10, 1982.
    Rehearing Denied Dec. 15, 1982.
    Certiorari Denied Feb. 25, 1983 Alabama Supreme Court 82-298.
    C. Lanier Branch of Copeland, Franco, Screws & Gill, Montgomery, for appellant.
    W. Mark Anderson, III, Montgomery, for appellee.
   WRIGHT, Presiding Judge.

This is a divorce case.

The evidence disclosed that the parties lived an eventful life. The wife met and took the husband to live with her while he was a foreign student working as a busboy in Los Angeles, California. She owned and operated a business and apparently did well enough to support herself and provide him with a home and solace. They subsequently were married. After five years as a student in a junior college, the husband enrolled at Florida State University. For two years he did not work and attended college full time. The wife says she fully supported him during that time. After obtaining his degree, the business of the wife was sold, though she continued to work, and the husband worked at several hotels or motels around the country. For a time he was employed in Saudi Arabia and Syria. The wife worked in a gold shop in that area, taking a major portion of her wages in merchandise. They managed to save a substantial sum during that time. They returned to this country, and the husband again worked in several cities. A home was purchased in Charlotte, North Carolina while the husband worked there. Seventeen thousand dollars was paid down on the house with monthly payments of some $550. The payments have now reached $575 monthly.

Subsequently, the husband lost his job in Charlotte. Marital difficulty intensified as the husband found employment in other cities. The wife remained in the home. The husband began living with a female co-employee in 1980 or early 1981. In March 1981 the parties entered into a separation agreement which provided for division of personal and real property. By its terms the husband agreed to make the house payment, pay taxes and insurance thereon, pay the utilities, provide health insurance for the wife, pay the wife’s auto insurance and pay her $400 a month as support.

The husband is forty years of age and is employed at Sheraton Riverfront Hotel in Montgomery. His after-tax income is $1,550 per month. The wife is twenty-two years older than the husband and is now age 62. She is unemployed, without income and has several health problems. She is German, having been first married to an American service man. She has a high school education with one year at a German finishing school. Her employment experience has been largely that of department store sales person.

The husband filed suit for divorce in November 1981. The wife counterclaimed for divorce on ground of adultery and asked judgment for sums due, but unpaid, from the separation agreement.

The court entered its decree of divorce on April 22, 1982. The ground therefor was not stated. Certain personal property alleged to be in possession of the wife was ordered delivered to the husband. Other awards of personal property, including automobiles, and the award of the home to the wife were the same as contained in the separation agreement. However, there was no award of periodic alimony as was agreed. There was only an award of $4,000 alimony in gross, payable $200 per month for a period of twenty months. There was no award of attorney fees. The wife has appealed.

The error contended is (1) the abuse of discretion in failing to award any periodic alimony or attorney fees and (2) the failure to enforce the separation agreement by determining the sum due and unpaid to the wife thereunder.

Our appellate courts have stated that the findings and judgment of the trial court in every case heard orally are reviewed with a presumption of correctness. Gorman v. Gorman, 392 So.2d 238 (Ala.Civ.App.1980). It is further held that an award of alimony is a matter within the judicial discretion of the trial court. Sharretts v. Sharretts, 408 So.2d 125 (Ala.Civ.App.1981). In neither instance is the reviewing court authorized to reverse, set aside or change such findings and judgments unless the presumption is overcome by an absence of support in the evidence, or that such judgments are so contrary to the evidence, or lack thereof as to be so arbitrary, unfair or unjust as to constitute an abuse of judicial discretion. Waters v. Waters, 387 So.2d 838 (Ala.Civ. App.1980).

Our review of this case compels our finding the judgment to be so unfair and contrary to the evidence as to overcome the ore tenus presumption and in all equity require reversal in part.

We have often listed the elements in divorce cases which are to be considered in determining whether to award alimony and the amount to be awarded. Clark v. Clark, 356 So.2d 1208 (Ala.Civ.App.1978); Shirley v. Shirley, 350 So.2d 1041 (Ala.Civ.App. 1977). We will not list them here again but relate them insofar as the evidence in this case allows: (1) The relationship and marriage of the parties endured for more than seventeen years; (2) the wife financially aided and assisted the husband substantially in attaining education and standing in American society — he being from the beginning a poor foreign student with only a work or student visa subject to cancellation; (3) the wife sold her business at his request and followed him and worked to assist him through college and in various foreign areas of the mid-east; (4) the admitted open adultery of the husband; (5) the wife is age 62, the husband is age 40; (6) the health of the wife is questionable at best and when considered with her age portends little or no employability, particularly in these poor economic times; (7) the wife has no estate except household furniture, a few items of jewelry of nominal value and an equity in a house which has been on the market for months with no prospective purchasers. The monthly payments are over $575 and the evidence is that the wife has no funds with which to pay them or maintain the home until a purchaser can be found. Foreclosure appears imminent; (8) the wife has no job, income or prospects thereof with which to sustain herself.

Viewing all these facts, we are unable to determine any equity in permitting the husband to abandon his wife and cast her aside in favor of a younger woman without means of support and maintenance with only a stipend of $200 per month for just twenty months.

Her ability to meet her needs unaided will more than likely be even more limited and diminished at the expiration of twenty months.

Therefore, we set aside and reverse that part of the decree providing for payment of alimony in gross of $4,000, and direct that in lieu thereof judgment be entered for permanent periodic alimony in the sum of $500 monthly, beginning December 1,1982. We further direct payment of $400 to wife’s attorney as a reasonable attorney fee for services in the trial court.

The wife complains of the failure of the trial court to determine arrearages under the separation agreement entered into prior to the suit for divorce. The decree is silent as to such issue. There was a contention by the wife and testimony that there was due her some $6,000 for failure to perform under the agreement. Such contention and evidence were disputed.

The argument of the husband in brief appears to be that such agreement is not subject to enforcement in the divorce action or may be modified or abrogated by the court. If such is the argument, we do not accept it. We believe the law to be that such a contract of separation is enforceable provided it is based upon sufficient consideration, is fair and reasonable in its terms and is not the result of fraud or coercion. Kirkland v. Kirkland, 236 Ala. 120, 181 So. 96 (1938). Such agreements are often incorporated into divorce decrees, so that they may be enforced by powers of contempt. Insofar as such agreement is incorporated in the court’s decree, the decree controls. However, parts of such an agreement not so incorporated may be enforced as any other contract in a civil suit. East v. East, 395 So.2d 78 (Ala.Civ.App.1980). Should such an agreement be executory at the instigation of an action for divorce, we perceive that enforcement may be included in that action. Kirkland v. Kirkland, supra; Bash v. Bogart, 226 Ala. 284, 146 So. 814 (1933); Rule 13, A.R.Civ.P.

However, let it be known that in this instance, as the evidence of breach of the agreement was in sharp conflict, the court was not bound to find that the wife was entitled to recover thereunder.

It is the opinion of this court that the judgment below be affirmed in part and reversed in part with direction as hereinbe-fore set out.

In response to request of the wife for attorney fees on appeal, we enter judgment therefor in the sum of $400.

AFFIRMED IN PART; REVERSED IN PART WITH DIRECTION.

BRADLEY and HOLMES, JJ., concur.


author: WRIGHT, Presiding Judge

text:
    Stanley Scott HIGHTOWER v. BRAMMALL, INC.
    Civ. 3325.
    Court of Civil Appeals of Alabama.
    Nov. 17, 1982.
    Rehearing Denied Dec. 22, 1982.
    Certiorari Denied Feb. 25, 1983 Alabama Supreme Court 82-321.
    David H. Meginniss of Hornsby, Blankenship & Robinson, Huntsville, for appellant.
    William W. Sanderson, Jr. of Lanier, Shaver & Herring, Huntsville, for appellee.
   WRIGHT, Presiding Judge

This is a workmen’s compensation case.

After considering evidence presented orally and by deposition the trial judge entered findings of fact and conclusions of law with judgment denying claimant compensation.

Claimant appeals contending error in the court’s findings that the evidence was inconclusive and speculative that his disease was caused by his work. He further contends error in the failure of the court to find that the work precipitated or aggravated the onslaught of an existing condition. Claimant also submits that the trial court, by its statements in its findings and conclusions, clearly set too high a standard of evidence as to determining causation.

Our study of the record discloses a somewhat unusual situation for workmen’s compensation cases. The evidence may be termed undisputed and briefly stated is as follows: Claimant was employed in August 1979 as a “roll straightener” by Brammall. The work required claimant to travel about the southeast as directed and “straighten” large rolls of paper and steel which had been altered in shipping. Most of such work was contracted by railroads and was performed either in unheated warehouses or outdoor storage facilities. The tools used were steel rods, hydraulic rams and heavy steel mallets or hammers. The mallets, weighing some thirty pounds, were all uninsulated steel, including the handle. The procedure was to drive a steel rod into the center or core of the roll by striking it with the mallet. The attached hydraulic ram was then used, together with further beating on the roll of paper or steel to return the core and the roll to its original shape. Such work required much physical labor. As many as twenty to seventy rolls per day were often repaired. The continual hammering of steel upon steel caused great vibration of the mallet, which vibration was transmitted through the uninsulated handle into the hands and arms of claimant.

In November of 1980, claimant began to notice whiteness and numbness in his fingers. The numbness and tingling began to carry over into the night, developing into aching and itching. His hands would become very cold and the use of the mallet became painful. He had never experienced these problems before. His employer was informed of the condition which rapidly became worse. In December claimant consulted a physician who was not familiar with the problem. He was referred to another physician. Upon consultation claimant was told he had “Raynaud’s.”

Claimant returned to work. In a few days the pain became extreme, his fingers became cracked and some of the fingernails became blackened and loosened. The physician tried various medicines and treatment and told him not to return to work. The condition worsened and another physician was brought into the case.

That physician hospitalized claimant for extensive tests to determine the cause of the problem. No etiological cause for the condition was found even though one of the fingers came near to becoming gangrenous. He was released from the hospital, continuing to suffer extreme pain, swollen and stiffened fingers, cracked and bleeding fingertips. Exposure to cold, even air conditioning, caused pain. He was unable to use his hands and wore gloves to protect them from contact and cold. The pain was often so intense that he slept in a chair with his hands wrapped in a heating pad.

Claimant was again referred by his first treating physician to another. Reviewing the records of tests previously made and performing his own examination, the new physician diagnosed his condition as “Ray-naud’s Disease.” He prescribed different medicines, recommended removal to a warmer climate, directed claimant to avoid vibrations or concussions to his hands, exposure to cold and to wear gloves for protection.

Claimant terminated his employment with Brammell in March 1981. He attempted to go to college but encountered such problem with the use of his hands in writing that he discontinued. His condition improved during the warmth of the summer of 1981. Following the advice of his physician, claimant moved to Florida and obtained employment. His condition now is greatly improved though he occasionally has difficulty which he has been able to control with medication.

The condition from which claimant suffers has been medically diagnosed by each of the three treating physicians as “Ray-naud’s Disease.” It is interesting to learn, about this disease. It appears that when symptoms first appear, the condition is medically termed “Raynaud’s Phenomenon.” That term describes a spasm of the blood vessels in the extremities of the body, generally of the fingers, but may involve the toes, tip of the nose, ears or any prominence more subject to cold exposure than other body parts. Such spasm may produce a white, then blue, then red color — the change in color correlating with different stages of the vascular spasm and its release. The term “phenomenon” relates to what is occurring before it is known what is causing it to occur. The “phenomenon” or “vasospasm” usually is a secondary reaction to some determinable primary etiological condition such as trauma or injury of an artery in the shoulder or neck, some connective tissue disease or inflammatory condition of arteries.

If there is not found some such primary cause, the phenomenon then becomes the primary problem and thus a disease. It is no longer a “phenomenon” resulting from a primary cause, but is a disease within itself without known cause. It thus becomes “Raynaud’s Disease.”

Two of the physicians stated that they could not say that claimant’s disease was caused by the exposure to cold and constant vibrations experienced by him in his work even though their test disclosed no other cause. They said that without question the conditions of his work aggravated his disease and that he should cease such work and avoid exposure to such conditions.

The last physician expressed the opinion that the conditions of his employment were the cause of his vasospasms and thus the cause of his disease. Such opinion was supported by the absence of a finding of any other cause and the fact of his improvement after leaving his employment. That physician’s opinion was also influenced by medical publications which reported similar effects in operators of jackhammers. There was introduced a report issued by the Center for Disease Control reporting a high incidence of Raynaud’s Phenomenon (also called vibration-induced white fingers or VWF) among foundry workers exposed to vibration from use of air hammers, grinders and chippers.

With the above related evidence before him, the trial judge made the following “Conclusion of Law.”

“From the evidence the Court finds that plaintiff has suffered from a disease of unknown causation. The Court is not reasonably satisfied from the evidence that the disease suffered by the plaintiff was caused by any condition of his employment. The weight of the medical evidence is inconclusive as to the cause of the disease and the evidence suggesting that a condition of the plaintiff’s employment may have been the cause of his disease is speculative and the Court is not reasonably satisfied that such evidence has any foundation in sound medical evidence. The Court is not reasonably satisfied from all the evidence that the disease suffered by the plaintiff arose out of his employment as required by Alabama Code § 25-5-51. The Court is aware that all doubts are to be resolved in favor of awarding compensation in Workmen’s Compensation cases but finds insufficient evidence in this case to causally connect the disease with conditions of the employment.
“There is also insufficient evidence to reasonably satisfy the Court that the disease suffered by the plaintiff is an occupational disease under Alabama law. The Court is not reasonably satisfied that the disease arose out of the employment of the plaintiff as required by the Occupational Disease statute, Alabama Code § 25-5-110. Further the Court is not reasonably satisfied that the disease suffered by the plaintiff is a result of exposure to hazards which are peculiar to his occupation as required by § 25-5-110.
“The Court is not reasonably satisfied from the evidence that the plaintiff suffers any compensable permanent disability. There was no clear evidence on the issue of the plaintiff’s loss of ability to earn and the Court concludes that there is no loss of ability to earn which is compensable under the Workmen’s Compensation statute.”

Recognizing, as we do in all workmen’s compensation cases, that our review of the judgment of the trial court is expressly limited by statute, § 25-5-81(d), Code 1975, we have considered the evidence and conclusions of law of the trial court. We have concluded that there is no reasonable view of that evidence that supports the conclusion of law expressed by the trial court that the disease of claimant did not result from conditions to which he was exposed in his work. Collins v. Central Foundry Co., 263 F.2d 712 (5th Cir.1959); Glover v. Howell Plywood Co., 50 Ala.App. 22, 276 So.2d 608 (1973). Though the trial court did not specifically make a finding as to whether claimant’s disease was activated or aggravated by his employment, we consider a negative conclusion of that issue to be inherent in the judgment denying the claim. Such a finding is directly contrary to the testimony of each of the physicians. Each of them stated without reservation that the vibration and exposure of the job aggravated the disease, and each of them directed him to cease his employment and to avoid similar employment in the future.

It is hardly material whether the disease was caused by the job or was pre-existing but activated or aggravated by the job. We held in the case of Newman Brothers, Inc. v. McDowell, 354 So.2d 1138 (Ala.Civ.App.), cert. denied, 354 So.2d 1142 (Ala.1978); that the fact that the workman had a pre-existing disease did not affect an award of compensation if the job combined with the disease to produce an injury or death.

Reiterating, it is the opinion of this court that the conclusions of law and the judgment of the court are contrary to and not supported by the evidence. We find the evidence as to cause of the disease to be undisputed, clear and not speculative. The two doctors who did not state an opinion as to cause, did not dispute the doctor who did give his opinion that the disease was caused by the job. Ford Life Insurance Co. v. Burton, 364 So.2d 327 (Ala.Civ.App.), cert. denied, 364 So.2d 329 (Ala.1978). If causation were not undisputed, we are convinced that claimant should recover because all of the medical witnesses agreed that the disease was aggravated and caused to become symptomatic by the job.

This court further finds the trial court to have erred in holding claimant suffered no compensable disability, either temporary or permanent. Again the testimony was undisputed that claimant was caused by the disease to leave his employment in March 1981. He was caused to move to Florida in order to live in a warmer climate. There was testimony both medical and from an employment expert witness that his employability was adversely affected to a considerable extent. There was testimony that at least fifty percent of those who contracted Raynaud’s Disease would have recurrence and that continued care and avoidance of cold and vibration was necessary. It was also shown that loss of feeling and sensitivity in the fingers was possibly permanent. Of course, continued medical care is to be expected.

For all of these reasons, the judgment denying the claim is reversed. The trial court is directed to enter judgment in favor of claimant and to proceed as necessary to determine an award both as to temporary and permanent disability together with medical benefits, all as provided by law. Additional evidence may be taken as deemed necessary to carry out the beneficent purposes of the Workmen’s Compensation Law.

REVERSED AND REMANDED WITH DIRECTION.

BRADLEY and HOLMES, JJ., concur.

      . Pictures of the fingers during this period clearly indicate the very serious condition.

      . We note here that all evidence before the court relating to cause and effect, except the testimony of claimant, was by deposition.

        Thus our view of it is the same as that of the trial judge. .


text:
    Bobby Joe SHIPP v. Elizabeth A. SHIPP.
    Civ. 3512.
    Court of Civil Appeals of Alabama.
    July 13, 1983.

      Will Beard of Beard & Beard, Gunters-ville, for appellant.
    No brief for appellee.
   WRIGHT, Presiding Judge.

A divorce was granted upon the petition of the wife in September 1982. In the judgment there was provided that the wife receive monthly alimony in the amount of $200. Disposition of certain personal property was directed. Husband contends on appeal that the court abused its discretion in that the division of such property was unfair to him.

We have carefully examined the record and the transcript of the evidence which was heard orally by the court. We have considered the contention of the husband as to the unfairness of the judgment. We perceive no possible precedential value in stating the facts in this opinion. The judgment carries with it a presumption of correctness. We find no abuse of the discretion of the court therein. Hicks v. Hicks, 52 Ala.App. 586,296 So.2d 180 (1974). There is no dispute that this was a second marriage of mature parties. It lasted less than four years. The wife brought into the marriage substantial assets. The husband brought little. When it ended, the wife was personally heavily indebted. The husband owed little. He was earning taxable income of $25,000 per year. He was better off economically at the end of the marriage than at the beginning. It was not so for the wife. The trial court by the judgment merely required the husband to assume some of the indebtedness incurred during the marriage. It committed no reversible error in doing so.

Husband complains of ambiguity in provision four of the judgment designating the responsibilities of the parties for payment of certain debts and stating ownership of certain automobiles and furniture.

We agree that provision four contains ambiguities and uncertainty. However, we find no indication that any request was ever made to the trial court for post-judgment amendment or clarification under Rule 59, A.R.Civ.P. We consider that the trial court is best equipped to remove ambiguities in its judgment. We therefore reverse provision four because of the uncertainty of the intent of the last sentence thereof. We remand to the trial court for redrafting so that the ambiguity of said sentence may be removed. We point out, however, that a post-judgment motion according to Rule 59(e), A.R.Civ.P., would likely have accomplished what is here directed.

AFFIRMED IN PART; REVERSED IN PART AND REMANDED WITH DIRECTION.

BRADLEY and HOLMES, JJ., concur.