text:
    Waring Inge HOLT et al. v. The FIRST NATIONAL BANK OF MOBILE, etc., et al.
    SC 2584.
    Supreme Court of Alabama.
    Nov. 18, 1977.

      W. Dewitt Reams and Samuel M. McMillan, Mobile, Thaddeus Holt, Washington, D. C., for appellants.
    James J. Duffy, Jr., and Carroll H. Sullivan, Mobile, for the First Natl. Bank of Mobile, Executor of the Wills of Francis H. Inge and Sloss Whitaker Inge.
    Richard S. Riley and Samuel H. Frazier, Birmingham, for Church of the Advent.
    Albert J. Tully, Mobile, for The Protestant Episcopal Church in the Diocese of Alabama and the Order of the Daughters of the King.
    Harwell E. Coale, Jr., and Champ Lyons, Jr., Mobile, for Christ Episcopal Church.
   SHORES, Justice.

The appellants, daughters of Francis H. Inge, deceased, brought this action seeking a declaration that the exercise of a power of appointment by the widow of Francis H. Inge was invalid.

The trial court upheld the exercise of the power of appointment of Mrs. Inge and the daughters appealed. The appellees are the executor of Francis Inge’s estate and the charities made beneficiaries under the will of Mrs. Inge.

Francis Inge died in 1959. He left a last will and testament dated July 8, 1957, which was duly admitted to probate. By the provisions of his will, Mr. Inge set up a marital trust and a family support trust. Under ARTICLE FIVE of the'will, he left one-half of his estate in a marital trust, the net income to be paid to his wife during her lifetime. Mrs. Inge was also given:

“. . . full and complete power of appointment or disposition of the principal of said trust, free of such trust, exercisable by her alone, and in all events, by and through her last will and testament or by and through any appropriate instrument which she may execute during her lifetime. In the event my said wife exercises such power of appointment, by and through her last will and testament, my trustees shall, upon her death, deliver, dispose of and distribute such principal, free from this trust, in all things and in all respects in accordance with and pursuant to the provisions of her said will, and to or for the benefit of such person or persons, or corporation or corporations, or her estate, and in such amount or amounts, and in such manner and at such time or times, as she may by her said last will and testament direct . . .”

The will also provided that, in the event Mrs. Inge failed to exercise the power of appointment, the property would go to the beneficiaries under the family support trust, the testator’s daughters. By ARTICLE SIX of the will, Mr. Inge left the remaining one-half of his estate to his wife, in trust, by the terms of which she was to receive the income for life; but, upon her death, the beneficiaries would be his daughters, each of whom would take her respective share upon reaching the age of twenty-one.

Mrs. Inge executed her last will and testament on May 2, 1973. Under ITEM EIGHT thereof, she exercised the power of appointment provided for in the will of her husband. This will was admitted to probate without contest. The appellants did not then, nor do they now, contend that Mrs. Inge lacked testamentary capacity at the time of the execution of the will. After this will was executed, Mrs. Inge was adjudged on December 16, 1974, to be of unsound mind. She died in March, 1975. Upon the death of Mrs. Inge, the appellants became the absolute owners of the corpus of the family support trust set up in the will of Francis Inge. It is their contention that they are also entitled to the corpus of the marital trust because Mrs. Inge lacked mental capacity to exercise the power of appointment at' the time of her death.

The argument advanced by the appellants is that Mrs. Inge never disposed of the appointive property while she was alive, and inasmuch as it was disposed of by will, it was disposed of “. . .if at all, only by the coming into effect of appointive language in her last will at her death. Because Mrs. Inge was of unsound mind at the time of her death, they argue that she did not have the capacity at that time to make a valid appointment; hence, the appointive provisions of her will are invalid.

The appellants concede, as they must, that the capacity to make a will is tested at the time of the execution of the will, and that a valid will is unaffected by the testator’s subsequent insanity. Burke v. Thomas, 282 Ala. 412, 211 So.2d 903 (1968); Price v. Marshall, 255 Ala. 447, 52 So.2d 149 (1951). However, they argue that this rule is inapplicable, saying that: “It makes no difference that the purported appointment is contained in a will made prior to insanity, for a power of appointment is a personal privilege of the donee of the power, not a species of property; hence, the rule that an insane person can dispose of his own property by a will made before insanity is inapplicable.”

We cannot agree with this argument. In the first instance, we cannot agree that a general power of appointment is a mere personal privilege of the donee of the power. To the contrary, most authorities take the position that:

“A life beneficiary of a trust having a power to appoint the remainder to any one, including the power to appoint to his own estate, is in substantially the same position as if he were the owner of the trust property, and the appointment of the remainder by him by deed or will is treated in much the same manner as a transfer inter vivos or at death by a person having title to the property.” Bo-gert, Trusts and Estate, § 273.35 at 405. See also: American Law of Property, § 23.48, p. 590 (Casner ed. 1952); American Law Institute, Restatement of the Law of Property, § 356, Comment B.

Certainly the Internal Revenue Service treats such powers of appointment as property in the estate of the holder of the power. Internal Revenue Code of 1954, § 2041. The power is taxable as an asset of the donee’s estate regardless of whether the holder has received technical legal title. Jenkins v. United States, 428 F.2d 538 (5th Cir. 1970).

Moreover, even if a power of appointment is something less than absolute ownership, why should the time for testing one’s capacity to exercise it be different than the rule which applies to the disposition of one’s property? In the instant case, Mrs. Inge had the power to dispose of the marital property in any manner that she saw fit. She did so by will. Of course, like any other disposition made by will, it could have been defeated and rendered nugatory by any subsequent valid conveyance to the contrary. Rice v. Park, 223 Ala. 317, 135 So. 472 (1931). Subsequent to the execution of her will, Mrs. Inge did not make any other disposition of the marital property. We can perceive no reason why the validity of the disposition of that property by exercising the general power of appointment which she held over it should be treated any differently than the validity of the disposition of other property by the will. Mrs. Inge’s having been declared incompetent subsequent to the execution of her last will has no effect on the validity of the disposition of property owned by her and disposed of by will, because the relevant time of inquiry is the date of the execution of the will. She admittedly was of sound mind at that time.

The appellants admit that they have found no authority from any jurisdiction which supports the position they take. Although we have found none directly opposed to the position they espouse, we do note that American Law Institute, Restatement of the Law of Property, § 345(1), contains the following:

“The donee of a power has capacity to make an effective appointment and an effective release, if he has capacity, with reference to similar property owned by him, to make a transfer which is not subject to disaffirmance by reason of infancy or insanity.”

Mrs. Inge clearly had capacity to make a transfer by will of property owned by her. We now hold that the time for testing her capacity to exercise the power of appointment held by her is to be determined at the time of the execution of that power, in the instant case, at the time of the execution of the will.

The judgment appealed from is affirmed.

AFFIRMED.

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


source: Caselaw Access Project

author: WRIGHT, Presiding Judge.

license: Public Domain

text:
    Eddie W. BROADWAY and Dorothy Broadway v. HOUSEHOLD FINANCE CORPORATION OF HUNTSVILLE.
    Civ. 1101.
    Court of Civil Appeals of Alabama.
    Aug. 10, 1977.
    Rehearing Denied Oct. 5, 1977.

      Charles G. Spradling, Jr., Legal Aid Society, Madison County, Huntsville, for appellants.
    Edgar E. Smith for Humphrey & Smith, Huntsville, for appellee.
   WRIGHT, Presiding Judge.

This appeal concerns the validity of a waiver of rights of exemption.

Appellee Household Finance instituted suit in the General Sessions Court of Madison County against Johnny M. Barron and Kathy Barron and appellants Eddie W. Broadway and Dorothy Broadway (parents of Kathy Barron) for the balance due on a promissory note. The complaint alleged the defendants had “waived exemption from execution,” and stated by affidavit that Household Finance had complied with all the provisions of Act No. 2052 (Mini-Code), Acts of Alabama 1971 [Tit. 5, §§ 316-41, Code of Alabama 1940 (Recomp.1958) (Supp.1973)].

Judgment by default was entered against the Barrons. The Broadways admitted execution of the note but denied they had waived their exemption rights. They contended the waiver of exemptions was unconscionable under Tit. 5, § 327, and so was unenforceable.

The general sessions court entered judgment against the Broadways, but without waiver of exemptions. Appeal was taken to circuit court by Household.

At trial in circuit court, the only issue was whether or not the waiver 'of exemption as to execution against personal property was enforceable when considered in light of the “unconscionable” provisions of Tit. 5, § 327.

The testimony of the Broadways was that they went to the office of Household to cosign the note of their daughter and son-in-law; the Broadways had previously secured loans from Household and had vouched for the good credit of their daughter and son-in-law so they could finance an automobile at Household; Broadways could read write and understand, but they did not read the note before signing nor did they ask that it be read or explained to them; they did not know what a waiver of exemption was nor its effect; they did not know a waiver was contained in the note when they signed; the transaction was over quickly; the papers were ready for signature when they arrived at the office of Household; the papers were placed in front of them and they were shown where to sign; no representation or explanation of the contents of the note was made to them; they signed without reading any part, even the large print above the place for signature required by Tit. 5, § 319(b), cautioning not to sign without reading; no one prevented them from reading the note; had they known what a waiver of exemption was and that the note contained such waiver they would not have signed even though they did not own a thousand dollars of personal property-

After hearing the evidence, the court entered judgment against the Broadways in the amount agreed to be due and with waiver of personal property exemption. The Broadways’ appeal asserted two issues as follows: (I) whether enforcement of a written waiver of the personal property exemption requires clear and convincing “proof of an intentional relinquishment of a known right;” (II) whether enforcement of the waiver in the note, without a strict standard of affirmative proof by the plaintiff offends Tit. 5, § 327 of the Code as unconscionable.

Article 10, § 204 of the Constitution of Alabama provides:

“The personal property of any resident of this state to the value of one thousand dollars, to be selected by such resident, shall be exempt from sale or execution, or other process of any court, issued for the collection of any debt . . . .”

Tit. 7, § 629, Code of Alabama 1940 (Re-comp.1958) provides the same with some additional specified articles. These provisions have been in the Constitution and statutes of this state for more than one hundred years. Brown v. Leiteh, 60 Ala. 313 (1877). Their clear purpose is to protect a debtor and his family from deprivation through judgment execution of certain household items necessary to the maintenance of the family unit and possibly prevent them from becoming a burden upon the public’s welfare. Coffman v. Folds, 216 Ala. 133, 112 So. 911 (1927); 31 Am.Jur.2d Exemptions § 3. Alabama is one of a small minority of states providing by statute for written waiver of such exemptions. Tit. 7, § 706, Code of Alabama 1940 (Recomp. 1958). It appears to be the only state providing for such waiver in its constitution. Ala.Const. Art. 10, § 210.

In the absence of constitutional or statutory provisions for waiver of exemptions, it has been generally held that an executory agreement, such as a note, to waive personal exemptions is void as being contrary to public policy. 94 A.L.R.2d 974. Such is not the law in Alabama. The constitution and statutes authorizing a written waiver of personal property exemption express the public policy of Alabama. Coffman v. Folds, supra.

Appellants recognize that in Alabama written waiver by a debtor of specified personal property exemptions is permitted. They also recognize that it has been held that the inclusion of such waiver in a note or other written instrument containing an underlying contractual obligation is permissible and enforceable in Alabama. Tit. 7, § 707, Code. Neely v. Henry, 63 Ala. 261 (1879). However, appellant advances a proposition not heretofore presented in cases of waiver. That proposition is that proof of a waiver requires more than proof of the debtor’s signature to the note; that the claim by a creditor for judgment on the waiver of exemption must be supported by proof of a knowing, voluntary and “intelligent” waiver; without such affirmative proof, the provision for waiver is to be determined unconscionable and unenforceable under the Alabama Consumer Credit Act, Tit. 5, § 327, Code of Alabama 1940 (Recomp.1958) (Supp.1973), and the Alabama Uniform Commercial Code, Tit. 7A, § 2-302, Code of Alabama 1940 (Recomp. 1958).

There are cases which appear to be approaching approval of the proposition put forward here by defendants. The United States Supreme Court in recent cases indicated that the standard for waiver of constitutional rights in civil cases may be in the proper factual setting held to be the same standard as in criminal cases, i. e., that it be voluntary, knowing, and intelligently made or an intentional relinquishment or abandonment of a known right and privilege. D. H. Overmyer Co. v. Frick Co., 405 U.S. 174, 92 S.Ct. 775, 31 L.Ed.2d 124 (1972). Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972). However, the necessity for such holding was not presented by the factual setting in those cases. Nor was it truly before the Supreme Court in the case of Swarb v. Lennox, 405 U.S. 191, 92 S.Ct. 767, 31 L.Ed.2d 138 (1972).

We question if there is a reasonable basis for applying the same standard for waiver of constitutional rights in a criminal matter to waiver of constitutional rights by contract in civil matters. In criminal matters waiver of fundamental constitutional rights cannot be presumed in any case but must always be shown to be voluntary, knowing and intentional. Giasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942). In civil contractual matters, the law has always been that one is presumed to know and intend what he places his signature to. Gunnels v. Jimmerson, 331 So.2d 247 (Ala.1976).

The constitution of Alabama not only provides the exemption, it also provides for waiver of the exemption and for the manner in which such waiver is to be given. By requiring that the waiver be in writing, it projected it into the law of contract. This is, that one who signs an instrument, even though he is ignorant of its contents, is bound by its terms in the absence of fraud, misrepresentation or deceit. Gunnels v. Jimmerson, supra; 5 Ala. Digest, Contracts, &wkey;93(2).

Defendants rely for direct support of their contention upon the case of Transnational Consumer Discount Co. v. Kefauver, 224 Pa.Super. 475, 307 A.2d 303 (1973). The court in that case summarily reversed the law of Pennsylvania as it had been established by the case of Adams v. Bachert, 83 Pa. 524, in 1877. The decision adopted the standard for waiver of constitutional rights in criminal cases, a step which the Supreme Court of the United States has not yet taken. Fuentes v. Shevin, supra.

We are convinced that the Supreme Court of Alabama has long ago stated the principle we must follow in this case. Tit. 7, § 709 of the Alabama Code requires the pleading of waiver in a suit where it is sought to be enforced. It also provides that the pleading may be appropriately controverted. In the case of Goetter, Weil & Co. v. Pickett, 61 Ala. 387 (1878), the defendant controverted the allegation of written waiver of personal property exemption by denying that he had read the note at the time of signing. The supreme court said in regard to that plea as follows:

“The evidence without conflict showed that he could read and write, and that he had ample opportunity of reading the note before signing it, and that he did read it so far as to ascertain its amount. There was no misrepresentation to him of the contents of the note, and if he has executed an instrument, he did not intend executing, his own negligence without any fraud or deceit of the party with whom he was dealing, is the cause . . A party who having full capacity and opportunity to read a paper, and to whom there is no misrepresentation of its contents, cannot set up his own want of attention — his failure to read it, as a fact to invalidate it.” (Citation omitted.)

The court further said in Neely v. Henry, 63 Ala. 261 (1879), “A waiver of exemption is a contract, and it must be construed, and have the operation and effect of other contracts.” Whether there has been a waiver may be determined from a fair and reasonable construction of the contract. Terrell & Vincent v. Hurst, Miller & Co., 76 Ala. 588 (1884). Tit. 7, § 707 provides that the waiver may be made by separate instrument in writing subscribed by the party, or it may be included in any promissory note, or other written contract executed by him. Though contained therein, the waiver is not a part of the obligation of the note but is an additional agreement which the maker enters into and must be so pleaded in suit. Scarbrough v. City Nat’l Bank, 157 Ala. 577, 48 So. 62 (1908). There must be an adjudication of the fact of waiver and its extent or judgment may not be entered thereon even though there is judgment on the obligation of the note. A. G. Story Mercantile Co. v. McClellan, 145 Ala. 629, 40 So. 123 (1905).

It appears to us that the legislature has for more than one hundred years provided statutory protection for the constitutional right of exemption and the constitutional right of waiver. As waiver is a matter of contract, its standard of proof must be that of contract.

The second contention of defendants that the circumstances of the execution of the waiver in this case brings it within the “unconscionable” provisions of Tit. 5, § 327, is not unknown to the common law. An “unconscionable bargain” void at common law was defined by the United States Supreme Court in the case of Hume v. United States, 132 U.S. 406, 10 S.Ct. 134, 33 L.Ed. 393 (1889) as a contract “such as no man in his senses and not under delusion would make on the one hand, and as no honest and fair man would accept on the other.”

In the context of modern consumer and commercial credit codes there are many definitions and variations of unconscionability. In the case of Kugler v. Romain, 58 N.J. 522, 279 A.2d 640, 9 UCC Rep.Serv. 559 (1971), it was said, “the standard of conduct contemplated by the unconscionability clause is good faith, honesty in fact and observance of fair dealing.” It has also been said, “Unconscionability relates to contract terms that are oppressive. It is applicable to one-sided provisions, denying the contracting party any opportunity for meaningful choice.” Billings v. Joseph Harris Co., 27 N.C.App. 689, 220 S.E.2d 361, 18 UCC Rep.Serv. 359 (1975). The Kansas Supreme Court in Wille v. Southwestern Bell Telephone Co., 219 Kan. 755, 549 P.2d 903, 19 UCC Rep.Serv. 447 (1976) enumerated ten factors which have been considered by the courts in determining unconsciona-bility. We will not set them out again here. One or more of those factors may be found in most consumer credit transactions. They relate to the terms of the contract, the status of the parties, the circumstances existing at the time of the making and the relative bargaining or economic ability of the parties. It appears without question if such factors must be considered, that there can be no implicit standard but each case must be considered on its own facts.

The facts in this case are: that defendants were capable of reading and understanding; they requested a loan be made to their daughter and son-in-law; they had previously borrowed money from plaintiff, signed notes with waiver of personal exemption and paid them; they had opportunity to read the note and in fact the note contained a warning in eight-point type to read before signing, as required by the Consumer Credit Act (Title 5, § 319, Code); though contained in the body of the note, the waiver was in clear and plain language and there was no request for explanation of any of the terms of the note prior to signing. Considering such facts, the waiver of personal property exemption was valid and not unconscionable.

The judgment of the trial court is affirmed.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.

      . However, Title 7, § 712, Code, prohibits written waiver of certain specified items and material.


author: SHORES, Justice.

text:
    Ex parte Eddie W. BROADWAY et al.
    No. 77-49.
    Supreme Court of Alabama.
    Dec. 2, 1977.
   SHORES, Justice.

WRIT DENIED.

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


author: BRADLEY, Judge.

text:
    Roscoe B. HOGAN v. ALABAMA POWER COMPANY.
    Civ. 1158, Civ. 1158-A.
    Court of Civil Appeals of Alabama.
    Aug. 24, 1977.
    Rehearing Denied Sept. 28, 1977.

      S. Shay Samples of Hogan, Smith & Als-paugh, Birmingham, for appellant.
    Edward S. Allen of Balch, Bingham, Baker, Hawthorne, Williams & Ward, Birmingham, for appellee.
   BRADLEY, Judge.

This is an appeal from two related actions which were consolidated for trial in the Circuit Court of St. Clair County.

On October 21, 1975 Roscoe B. Hogan filed an action against the Alabama Power Company for trespass and fraud and misrepresentation in the Circuit Court of St. Clair County. The complaint was later amended to include a third count for the statutory penalty under Title 47, Section 272, Code of Alabama 1940 (Recomp.1958) for willfully and knowingly cutting timber.

On December 13, 1975 the Alabama Power Company filed an application for an order of condemnation against Roscoe B. Hogan and others in the Probate Court of St. Clair County, seeking to condemn and acquire certain portions of the land belonging to Hogan and upon which the alleged trespass occurred. The condemnation application was granted and commissioners appointed who assessed condemnation damages in the amount of $6,500. Hogan appealed the order of condemnation to the Circuit Court of St. Clair County.

The appeal from the condemnation and the tort suits were consolidated for jury trial, which began September 14,1976. The jury returned a verdict for Hogan in the amount of $1,748 in the damage suit and $6,000 in the condemnation case. Hogan’s motions for new trial in both cases were overruled and he appeals.

Sometime in August 1975 Roscoe B. Hogan was contacted by Frederick J. McGuf-fin, an employee of the Alabama Power Company, about a proposed transmission line which would cut across Hogan’s property in St. Clair County. McGuffin showed Hogan maps and area photographs illustrating where the Power Company intended to survey and put its transmission line. Hogan told McGuffin he did not want the power line in the proposed location, but would be willing to discuss its location to the south of his property. The proposed line would have divided Hogan’s property approximately in half, running through an existing lake and garden. Hogan wanted the line placed up a mountainside on the southern side of his property. There was conflict in the evidence whether Hogan said he did not want the line on his property at all, or whether he simply did not agree to the line’s bisecting his property.

In any event, Hogan specifically told McGuffin that he did not approve the proposed line and that he did not give the Power Company permission to enter his land for the purpose of surveying its proposed line until further discussion with the Power Company. McGuffin put that information into his report to the Power Company, copies of which were circulated within the Power Company.

Hogan heard nothing more from the Power Company until October 1975 when he received a telephone call from his caretaker, who told him surveyors from the Power Company had been on the property for two days driving their trucks around, cutting down trees, and surveying. Hogan then spoke with Jess Sullivan, the chief surveyor, and informed Sullivan that the Power Company had not been given permission to survey its proposed transmission line. Sullivan and his crew left immediately after that communication and did not return until after the condemnation order was granted. By the time Hogan was aware the Power Company was on his land, two proposed locations for the transmission line had been cut and surveyed.

Sullivan testified that he had not been notified by his superiors that Hogan had not given permission for the survey crew to enter his property, and therefore assumed permission had been granted. Apparently McGuffin’s report had been given to the wrong crew. However, according to testimony from Sullivan’s superior, R. T. Hardin, he knew permission for the survey had been withheld by Hogan at the time he dispatched Sullivan and his crew to make the survey.

Furthermore, it appears that the Power Company considers a landowner’s grant or withholding of permission to enter his or her property irrelevant if the Power Company has decided to make a survey. Hardin said it is the practice of the Alabama Power Company survey crews to enter property, cut down trees, and make their survey even when they have actual knowledge that the landowner has denied them permission to do so.

W. E. Vanderford, the assistant manager of transmission line projections, said that after McGuffin reported to him the substance of McGuffin’s conversation with Hogan, a decision was made to locate the transmission line southeast of the initially proposed location so as not to interfere with Hogan’s present use of his land. The difference in distances between the present right-of-way and the proposed right-of-way is one thousand feet at the widest point and five hundred to six hundred feet at the narrowest point. Vanderford indicated that since the line had been moved southward as requested by Hogan, it was not necessary for him to contact Hogan before making the survey.

At the time of the survey and subsequent condemnation the property, composed of approximately two hundred three acres, was used by Hogan to raise cattle and hogs, and as a vacation spot. Hogan had a cabin with a swimming reservoir, a garden and a lake or pond. According to the Power Company, the present location for the transmission line does not interfere with either the farming activity or the scenic area surrounding the cabin. Nor does Hogan center his complaint on the line’s interference with the present usage of his property.

Hogan had planned to develop his acreage into a resort type area by making a large lake, subdividing the property into smaller lots, and building chalet-style cabins.

In brief Hogan submits six reasons for the reversal of the trial court’s judgments.

The first two reasons concern the inadequacy of damages under the trespass and fraud counts and the count asking for the statutory penalty, authorized by Title 47, Section 272, Code of Alabama 1940 (Re-comp.1958).

Hogan’s action for damages was tried on three different theories and went to the jury on all three: trespass, misrepresentation and fraud, and statutory penalty for cutting trees. The jury’s verdict was as follows:

“We the jury find the issues in favor of the plaintiff and assess his damages in the sum of one thousand seven hundred and forty-eight dollars.”

Thus it does not appear whether the award of damages was based on the trespass count, fraud count, or the statutory penalty count. Hogan maintains that the damages awarded are “against the clear and convincing weight of the uncontroverted evidence” and therefore inadequate as a matter of law.

In Hardy Insurance Co. v. Baumhauer-Croom Insurance, Ala.Civ.App., 339 So.2d 584, 587 (1976), we said:

“The standard of review when adequacy of damages is challenged is whether the record affirmatively reveals either an improper motive of, or improper influence on, the jury. If there is no such showing, then it must appear that the verdict fails to give substantial compensation for substantial injury. Alabama Farm Bureau Mutual Casualty Insurance Co. v. Anderson, 52 Ala.App. 651, 296 So.2d 739 (1974).”

In Palmer v. Thomas Jefferson Hotel, Inc., 53 Ala.App. 185, 298 So.2d 269 (1974), we said that where no improper motive or influence on the jury appears, the question to be answered is whether the damages verdict is so opposed to the evidence as to clearly fail to do justice. Additionally, where the trial judge refuses to grant a new trial, the presumption in favor of the correctness of the jury verdict is thereby strengthened. Hubbard Bros. Construction Co. v. C. F. Halstead Contractor, Inc., 294 Ala. 688, 321 So.2d 169 (1975); Walker v. Henderson, 275 Ala. 541, 156 So.2d 633 (1963).

The measure of damages for trespass to land when trees have been cut is the difference between the value of the land immediately before the trespass, i. e. the cutting, and its value immediately after. Hammond v. Stephens, 269 Ala. 210, 112 So.2d 324 (1959); Dollar v. McKinney, 267 Ala. 627, 103 So.2d 785 (1958).

Hogan testified that the trespass to his land damaged it in the amount of $5,000. The two real estate agents called as experts on behalf of the Power Company testified that the cutting of the trees on Hogan’s property by the Power Company’s survey crew did not affect the value of the land at all. Also there was testimony that the value of the trees cut was $3.00. The jury saw pictures taken immediately after the trees were cut and thus could form a judgment for themselves as to the extent of the damage inflicted to the property as a result of the trees being cut. It was certainly the jury’s prerogative to decide which if any testimony to believe. Thus, we are unable to say the award of $1,748 was grossly inadequate compensation for the trespass.

The main thrust of Hogan’s argument in brief seems to be directed toward the failure of the jury to award punitive damages, and he relies on the rule that a jury is warranted in awarding punitive damages in a trespass action if the trespass is accompanied by circumstances of fraud, malice, oppression, aggravation or gross negligence. Rushing v. Hooper-McDonald, Inc., 293 Ala. 56, 300 So.2d 94 (1974). The evidence would support a finding that the trespass was attended by such aggravated circumstances. However, the question is not whether the jury could have awarded punitive damages, but rather whether they must have awarded such damages and if so in how large an amount.

We are not persuaded that the jury did not award punitive damages. It is entirely possible that the jury believed that the cutting of the trees did not noticeably affect the value of Hogan’s land, and awarded only nominal damages for the trespass. Thus, the award of $1,748 could include punitive damages. Since the amount of punitive damages awarded is a matter of discretion with the trier of fact, Badgett v. McDonald, 53 Ala.App. 726, 304 So.2d 228 (1974); Williams v. Clark, 50 Ala.App. 352, 279 So.2d 523, cert. den. 291 Ala. 803, 279 So.2d 526 (1973), this court cannot say the award is grossly inadequate and requires reversal.

Notwithstanding our conclusion that the award is not inadequate, we are not convinced that a jury must award punitive damages although the facts are such that it could, which position Hogan seems to be advocating. In Alabama Power Co. v. Rembert, 282 Ala. 5, 208 So.2d 205 (1968), the supreme court held the trial court had erred in directing the jury that it “should” assess punitive damages. The court said:

“Punitive damages are not recoverable as a matter of right except as provided by statute, Treadwell Ford, Inc. v. Leek, 272 Ala. 544, 133 So.2d 24; and the imposition of such damages is discretionary with the jury, acting with regard to the enormity of the wrong and the necessity of preventing similar wrongs. Birmingham Electric Co. v. Shephard, 215 Ala. 316, 110 So. 604; ...” 282 Ala., at 6, 208 So.2d, at 206.

Failure to leave the assessment of punitive damages entirely to the discretion of the jury was reversible error.

Again in Austin v. Tennessee Biscuit Co., 255 Ala. 573, 52 So.2d 190 (1951), the supreme court said the assessment of punitive damages is a matter within the jury’s sound discretion, and that such damages are not recoverable as a matter of law. The court then concluded:

“. . . Under the evidence in this case, although the jury may have found the defendant guilty of wantonness as charged in count 2, we cannot say that a failure of the jury to award punitive damages was an arbitrary act.” 255 Ala., at 578, 52 So.2d, at 194.

Hogan also attacks the $1,748 award as inadequate under Title 47, Section 272, which provides as follows:

“Any person who cuts down, deadens, girdles, boxes, or destroys, or takes away, if already cut down or fallen, any cypress, pecan, oak, pine, cedar, poplar, walnut, hickory, or wild cherry tree, or sapling of that kind, on land not his own, wilfully and knowingly, without the consent of the owner of the land, must pay to the owner twenty dollars for every such tree or sapling; and for every other tree or sapling not hereinbefore described, so cut down, deadened, girdled, boxed, destroyed, or taken away by any person, he must pay to such owner the sum of ten dollars. Actions under this section may be joined with actions for trespass, for cutting, injuring, or removing timber.”

Hogan hired a forester to count the number of trees cut by the Power Company and identify them by type. This expert said he counted 584 hardwood trees or saplings that had been cut and 37 pine trees or saplings, a total number of 621 trees. Hogan says his damages computed under the statute should have been $5,840.

The Power Company responds by arguing the statutory penalty does not apply to them in this instance because Sullivan, the man who cut the trees, did not himself have actual knowledge that Hogan had not given permission for the survey to be made. Furthermore, Sullivan said that only a few trees were cut for the survey lines.

We cannot consider these contentions on their merits for the reason that the verdict was a general one and we cannot say on which count the jury predicated its verdict. And, as we have already said, the evidence does support the trespass count; consequently, as a matter of law, we cannot say that the $1,748 verdict is inadequate.

Hogan’s next two issues deal with alleged error committed by the trial court in charging the jury: first, that the trial court erred in giving a particular charge and second, that the trial court prejudicially harmed him by identifying his requested charges as the court gave those charges to the jury. However before this court can consider the merits of the objection, we must first determine whether Rule 51, ARCP, has been observed.

After the trial court completed its instructions to the jury, the jury left the courtroom to allow the lawyers to make their objections. The Power Company was allowed to make its objections first. After the Power Company had objected with grounds to certain portions of the trial court’s oral charge, the following transpired:

“MR. LAVETTE: Are you through?
“MR. ALLEN: I’m through as far as the oral charges are concerned; but not as far as the written charges are concerned.
“THE COURT: Do you have to except to those written charges on the record?
“MR. ALLEN: Yes, sir.
“THE COURT: All right. Go ahead.
“MR. HOGAN: Your Honor, in the interest of saving time, we would be willing to give the Power Company exceptions to all charges requested and not given by the Court insofar as their own charges are concerned, and also exceptions to the charges requested by the plaintiff or property owner and wherein your rulings were adverse to them. Just as a matter for the record.
“Could we have the same thing as far as our charges are concerned?
“MR. ALLEN: You may. And I think the only other matter we would want to bring up would be: I’m willing to allow you to assign or to consider that any appropriate ground of exception was assigned and given—
“MR. LAVETTE: Now, we don’t want to make a deal on anything except your requested charges that you asked for and ours that were given or yours that were given and vice versa.
“MR. ALLEN: Well, what I’m saying is: You not only have to except, you have to state grounds for the exception. If you’re willing to give me the exceptions and also give me whatever grounds I would have—
“MR. LAVETTE: Well, we’re—
“MR. ALLEN: Okay. If not, I’m going to have to make my exception and state grounds. An exception is no good without grounds.
“MR. HOGAN: Your Honor, we would agree that the grounds may be assigned by both sides — under the agreement — at a later time. And let’s let the jury have the case.
“THE COURT: Let’s just have an agreement that ya’ll will fool with those written charges after we get the jury out.
“MR. HOGAN: That’s what I want.
“MR. ALLEN: Well, let me just save us some time, then, and say that — as Mr. Hogan did — that it will be all right for either side to assign specific grounds at a later time.
“MR. HOGAN: At a later date within the appropriate time limits as provided by law. In other words, I’m not going to say you can come up here after thirty days or we can come up after thirty days within which to file a motion for a new trial and assign grounds.
“MR. ALLEN: Okay. Let’s say we could assign them in a motion for new trial. Is that okay with the Court?
“THE COURT: That’s good.
“MR. ALLEN: Okay.”

It is quite clear from the colloquy above set out that the trial court and Mr. Hogan and his attorney did not fully appreciate the requirements of Rule 51 as it applies to making objections to written requested charges and assigning grounds therefor.

We recognize that lessons learned in the judicial arena are not easily unlearned and that new ways take a little time to become second nature, but the Alabama Rules of Civil Procedure have been in effect since July 1973 and we believe that is enough time for the bench and bar to become sufficiently aware of these rules so that they can be properly implemented.

Rule 51 is quite specific as to when objections are to be made to written requested charges:

“At the close of the evidence or at such earlier time during the trial as the court reasonably directs, any party may file and, in such event, shall serve on all opposing parties written request that the court instruct the jury on the law as set forth in the requests.”

The rule further specifically provides that:

“ . . 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 Committee Comments on Rule 51 are quite candid and clear:

“Former practice was regulated by Tit. 7, §§ 270-74, 818, Code of Ala. Under these statutes certain anomalous situations existed which are now eliminated. For example, Tit. 7, § 818 gave automatic exceptions to adverse rulings on requested written charges. This permitted a party to sit silently as an erroneous charge was given or a meritorious charge was refused after the court had sifted through numerous charges submitted by the parties. Should the court fail to cover the error in its oral charge, counsel could thereby preserve appellate relief in the event the jury verdict was unsatisfactory. Under this Rule, the party must, as a condition to the right to assert error on appeal, object and state grounds therefor before the jury retires. To facilitate the making of objections to requested written charges, the rule requires that they be served on all opposing parties. For proof of service under such circumstances, see the commentary to Rule 5(d). The rule also requires that opportunity be given for the making of such objection outside the presence of the jury.
“ . . . Under this rule, charges must be submitted at the close of the evidence or at such earlier time as the court reasonably directs.
“Logic suggests that oral argument to the jury is best presented when counsel have already been apprised of the court’s ruling on the charges. Since the rule permits the court to require reasonable advance filing of requests, and, in all events, at the close of the evidence, it should not be difficult for the court to comply with the rule’s requirement that counsel be informed of the court’s action prior to argument. .
“Hence, at the conclusion of the oral charge, the court should permit opportunity for objections. Inquiry as to the existence of objections should not be made in the presence of the jury. .
“If the court upon hearing an objection to the charge declines to supplement or modify its charge, the matter is preserved for appellate purposes. Should the court, after hearing the objection, request submission of additional instructions, counsel would have to comply with the court’s request in order to preserve the matter on appeal. Of course, handwritten additional instructions under such circumstances would be acceptable unless ample time was available during an ensuing recess for preparation with greater formality.”

In the case at bar counsel for the Power Company objected to the trial court’s refusal to give certain written requested charges and the giving by the trial court of certain written charges requested by Hogan but did not assign grounds because Hogan asked for and got an agreement both from the Power Company and the trial court that the grounds could be assigned later in the motion for new trial.

Permission to assign grounds for objections to the giving or refusal to give written requested charges is the heart and soul of Rule 51 for it allows the trial judge to intelligently re-assess the correctness of the oral charge that he has given or proposes to give. Such a re-assessment helps to minimize error and to avoid possible error in the giving or refusal of the requested charges. Therefore, for us to 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. Furthermore, should this court condone such a practice, we would not only have excised the heart of Rule 51, but we will have reverted back to the former practice of permitting a party to dump handfuls of written requested charges on the judge’s bench just before the case is submitted to the jury to see how many erroneous charges the judge will give to the jury. We do not believe Rule 51 authorizes nor was intended to authorize a practice whereby grounds offered in support of objections to a written requested charge (whether made to the giving or refusal to give the charge) may be assigned as late as a notion for new trial. We cannot permit Rule 51 to be interpreted in such a manner. Appellant cannot claim error with regard to this portion of Rule 51.

Hogan also argues that the trial court committed reversible error when it, in reading his written requested charges to the jury, identified those charges as being requested by him.

Again, Rule 51 very plainly provides:

“ . . . Those requests marked ‘given’ shall be read to the jury without reference as to which party filed the request. . . . ”

In explanation of the effect of this portion of Rule 51, the Committee Comments state:

“This rule prohibits identification of requested charges by reference to the party requesting same. If the purpose of reading the written charges to the jurors is to impress upon them that instructions prepared by the parties and given by the court are entitled to equal consideration with the court’s oral charge and contain correct statements of the law as approved and adopted by the court, it is hard to justify designating certain charges as having been requested by one party or the other. Since it is the duty of the court to instruct the jury on the law, and not the duty of plaintiff or defendant’s attorney, it would seem appropriate that the court make no comment as to which party requested the charge. In Carlson v. Sanitary Farm Dairies, 200 Minn. 177, 273 N.W. 665 (1937), Mr. Justice Loring of the Supreme Court of Minnesota stated:
“ ‘Before passing to the considerations of this charge, we wish to express our disapproval of the action of some trial courts in announcing, as was done in this case, that any portion of the charge is given by request of either party. A requested charge should be given only when the trial court approves of and adopts as its own the law contained in the request, and it should preferably be incorporated in the appropriate part of the body of the charge so as not to destroy its symmetry.’
“If the requested charges submitted to the court by the parties are correct statements of the law, little justification exists for singling them out as being charges requested by plaintiff or defendant.”

The sentiments expressed by Justice Lor-ing of the Minnesota Supreme Court aptly describe our thoughts on this subject. However, in this instance, we will not declare that the trial court’s action in stating to the jury which party requested which charge was so prejudicial as to constitute reversible error. Furthermore, we would point out that Hogan did not object to the trial court’s labeling the written charges which were given as being requested by one party or the other until he filed his brief, hence his objection was made too late.

Hogan next says he is entitled to a new trial in the condemnation action on the ground that the Power Company has failed to comply with the constitutional requirement of due process in the manner in which it took its easement. He relies mainly on the necessity clauses of Title 10, Sections 74 and 82, Code of Alabama 1940 (Recomp. 1958). These sections provide that a power company may acquire by condemnation rights-of-way for power lines where necessary, subject, however, to liability for all damages done to the property entered for acquisition purposes.

In the recent case of Alabama Power Co. v. Hamilton, Ala., 342 So.2d 8 (1977), the supreme court said that the legislature has the constitutional authority to delegate the right of eminent domain to the Power Company and that the selection of the route for the power lines is part and parcel of the right to condemn. The only limitation placed upon this authority by the court is that it be exercised in good faith and not in a capricious or wantonly injurious manner. See also Berry v. Alabama Power Co., 257 Ala. 654, 60 So.2d 681 (1952).

In the case at bar the trial court conducted a hearing on the Power Company’s application for condemnation of a transmission line easement over Hogan’s land and heard extensive testimony from witnesses for both parties. After the hearing the trial court granted the application to condemn the right-of-way. The evidence showed that the Power Company was constructing a 230 kv transmission line from a Clay County substation to Oneonta, Alabama where the power would be distributed to present and potential customers. When told by Hogan that the proposed transmission line route would interfere with the present use of his lake and garden, the Power Company moved the location of the line route somewhere between five hundred and a thousand feet south of the original location on Hogan’s property so as to minimize interference with his use of the land.

Although the final location of the power line on Hogan’s land could result in interference with its proposed future use, we cannot say that the ultimate location of the power line was a wanton and capricious act resulting in an abuse of the Power Company’s right of eminent domain. No error here.

Lastly, Hogan argues that the $6,000 awarded him by the jury as compensation for the condemned land is grossly inadequate and denied him “just compensation” as provided by Sections 23 and 235 of the Constitution of Alabama 1901, and he should have a new trial.

The trial court properly charged ■ the jury that the measure of damages in a condemnation action is the difference between the fair market value of the property prior to the taking and the fair market value of the part remaining after the taking, giving effect to any enhancement or damage to the part remaining. See State v. Dempsey, 286 Ala. 397, 240 So.2d 361 (1970).

The evidence • reveals that there was a wide disparity in the testimony of the witnesses as to the before and after value of the property in question. The first witness for the landowner testified that the before value of the property was $205,000 and the after value was $61,500. The amount of the damage to the property would be about $143,500 and includes damages to the land remaining after the taking. The second witness for the landowner stated that the before value was $232,000 and the after value was $192,183. The amount of damages would be $39,817 and includes damages to the land remaining after the taking. The landowner testified that the before value was $200,000 and the after value was $100,000 leaving $100,000 as the amount of damage caused by the taking.

The first witness for the Power Company said that the before value was $137,000 and the after value was $132,000 with no damage to the property remaining after the taking. Total damages for the taking would be $5,000. The second witness for the Power Company testified that the before value was $157,400 and the after value was $151,700 with no damage to the remaining land. Total damages for the taking would be $5,700. The amount actually awarded was $6,000.

The verdict of the jury, the trier of the facts, who saw and heard the witnesses testify and who observed their conduct and demeanor while in the witness box is entitled to great weight, and when attacked for being inadequate, the following rule from Thornton v. City of Birmingham, 250 Ala. 651, 657, 35 So.2d 545, 549, 7 A.L.R.2d 773, 780, will apply:

“. . . The verdict of the jury and the ruling of the trial court refusing to set it aside on such ground will not be overturned unless it clearly appears that the verdict was the result of inadvertence or intentional or capricious disregard of the evidence, or was infected with bias, passion, or other improper motive, and that the excessiveness of the verdict was the result thereof. In other words, unless the amount is so large or so small as to carry internal evidence of intemperance in the minds of the jury the verdict must stand.
“On this issue the courts approve the principle that when the presiding judge refuses to grant the new trial, the favorable presumption attending the verdict of the jury is thereby strengthened.” (Citations omitted.)

We are not persuaded in the instant case that bias or prejudice infected the jury’s verdict nor are we convinced that the jury’s award is so unsubstantial as to require a finding that the jury failed to award just compensation to the landowner. Pappas v. Alabama Power Co., 270 Ala. 472, 119 So.2d 899 (1960); Palmer v. Thomas Jefferson Hotel, Inc., 53 Ala.App. 185, 298 So.2d 269 (1974). Consequently there is no error in the order of the trial court overruling the motion for new trial on this ground.

For the reasons above stated, the judgments appealed from are affirmed.

At oral argument before this court, counsel for the landowner made an oral motion for the award of attorney fees. There is no legal basis for such an award. In the absence of contract, statute, or recognized ground of equity, there is no inherent right to have attorney fees paid by the opposing side. City of Vestavia Hills v. Randle, 292 Ala. 492, 296 So.2d 710 (1974).

Furthermore, the supreme court in White v. State, 294 Ala. 502, 319 So.2d 247 (1975) held that attorneys’ fees and expenses are not embraced within “just compensation” for land taken by eminent domain.

MOTION FOR ATTORNEY FEE DENIED.

AFFIRMED.

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


author: PER CURIAM.

text:
    Ex parte Roscoe B. HOGAN.
    No. 77-32.
    Supreme Court of Alabama.
    Dec. 2, 1977.
   PER CURIAM.

WRIT DENIED.

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


author: HOLMES, Judge.

text:
    TOMBIGBEE LIGHTWEIGHT AGGREGATE CORPORATION v. Ola Mae ROBERTS and State of Alabama Department of Industrial Relations.
    Court of Civil Appeals of Alabama.
    Oct. 19, 1977.
    Rehearing Denied Nov. 16, 1977.

      Ira D. Pruitt, Jr., Livingston, for appellant.
    D’Wayne May, Butler, for appellees.
   HOLMES, Judge.

This is an unemployment compensation case.

The Board of Appeals for the Department of Industrial Relations of the State of Alabama found that claimant-appellee voluntarily left her employment for good cause and awarded unemployment compensation benefits. The circuit court agreed with the board of appeals and the employer-appellant appeals. We affirm.

At the outset, we note that this court, on review, will ascribe the ruling of the trial court to any one or more of the tendencies of the legal evidence which, independently or jointly, support the result below. See Stewart v. Department of Industrial Relations, 40 Ala.App. 383, 114 So.2d 274 (1959).

So viewing the record before this court, we find the following:

The claimant began her employment with the employer on October 31, 1972, as an office manager. Claimant took the position with the understanding and assurance that she would be able to work approximately 10 hours per week overtime. Specifically, there is testimony by the claimant that she took this job instead of another because of the guarantee of overtime work. She also testified that the loss of overtime was the basis of her leaving work.

An interviewer for the State of Alabama Employment Service testified that claimant accepted the job with Tombigbee solely because of the representation that she would be working overtime. Her pay records indicate that she did so work overtime for approximately 2 years.

On December 16, 1974, appellee was informed that, due to economic conditions, overtime would no longer be allowed. Pri- or to this time, she was making $3 per hour and, as noted above, working at least 10 hours per week overtime. Her wages rarely fell below $165 per week and were in most instances above this figure.

After December 16, 1974, claimant was given a raise to $3.25 per hour but, as indicated above, was allowed to work only 40 hours per week. At this wage scale, she was making $130 per week. Claimant continued to work for approximately three months after this reduction in hours and wages, but then left her work.

Tit. 26, § 214, Code of Alabama 1940 (1973 Cum.Supp.), states in pertinent part that:

“An individual shall be disqualified for total or partial unemployment.
“B. If he has left his most recent bona fide work voluntarily without good cause connected with such work.” [Emphasis supplied.]

The law in Alabama is settled in that a substantial reduction in earnings is regarded as good cause for leaving one’s employment. See Andala Company v. Ganus, 40 Ala.App. 455, 115 So.2d 119 (1958), rev’d on other grounds 269 Ala. 571, 115 So.2d 123 (1959); Alabama Textile Products, Corp. v. Rodgers, 38 Ala.App. 206, 82 So.2d 267 (1955); 81 C.J.S. Social Security § 232 (1977).

In this case, claimant’s earnings were reduced from at least $165 per week down to a maximum of $130 per week. Such a reduction in wages could constitute a substantial reduction. See Scott v. Photo Center, Inc., 235 N.W.2d 616 (Minn.1975); Robertson v. Brown, 139 So.2d 226 (La.App.1962); Bunny’s Waffle Shop v. California Unemployment Commission, 24 Cal.2d 735, 151 P.2d 224 (1944).

It is clear that the loss of earnings was a result of the loss of overtime. As able counsel for appellant points out, the elimination of overtime was the result of a general economic depression at that time. Appellant further points out that due to this economic depression, such a reduction in earnings would not constitute good cause for claimant to leave her job.

In Oxendine v. Levine, 49 A.D.2d 784, 372 N.Y.S.2d 255 (1975), the court said that an employee had left his job without good cause when the employer stopped permitting him to work overtime. However, in that case the employee was hired on a 40-hour per week basis.

When the basis of employment includes the guarantee of overtime, such as in the present case, an employee can leave his job with good cause when the employer eliminates his overtime. See Murphy v. Levine, 49 A.D.2d 653, 370 N.Y.S.2d 264 (1975).

The motivation of the employer in eliminating overtime is immaterial, in this instance, when the basis of employment centered around the guarantee of overtime.

Furthermore, the employer argues that claimant did not suffer a substantial reduction in wages because her wages after December 16, 1974, were considerably more than those when she was first employed and therefore there is no reduction. The proper inquiry, as to whether there has been a substantial decrease, should focus on the wages immediately before the reduction and those immediately after.

Employer’s contention that claimant voluntarily left without good cause because she was unhappy that an additional employee was hired is without merit. Viewing the evidence as noted above, there is ample evidence to the contrary.

The judgment is due to be and is hereby affirmed.

AFFIRMED.

WRIGHT, P. J„ and BRADLEY, J„ concur.

ON REHEARING

Able and distinguished counsel for appellant in his brief in support of his application for rehearing charges that this court gave a presumption of correctness of the finding of the trial judge; that the trial judge was not entitled to such presumption as the evidence was presented to the trial court by stipulation.

This court was, of course, aware that the evidence, while in conflict, was presented below by way of stipulation.

This court did not in its original opinion ascribe to the trial court a presumption of correctness as contended by appellant. This court did note in its original opinion that this court, on review, will ascribe the ruling of the trial court to any one or more of the tendencies of the legal evidence which, independently or jointly, support the result below. We believe this principle to be applicable in this instance and reaffirm its applicability to the instant appeal.

OPINION EXTENDED; APPLICATION FOR REHEARING OVERRULED.

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


text:
    Henrietta JENKINS v. Tom JENKINS.
    Civ. 1225.
    Court of Civil Appeals of Alabama.
    Nov. 16, 1977.
    George E. Trawick, Ariton, for appellant.
    Charles L. Woods of Woods & Corbitt, Ozark, for appellee.
   HOLMES, Judge.

This is a divorce case.

The dispositive issue on appeal is whether the trial court erred in denying the wife’s motion for a continuance. The basis of the continuance motion was that no court reporter was present to transcribe the testimony. We find the trial court did not err and affirm.

The controlling statute, as conceded by all parties, is Act No. 25, Acts of Alabama, Second Special Session 1971, and in pertinent part is as follows:

“The judge shall secure the services of a competent reporter to attend the sessions of the court and report all equity cases tried when request in writing therefor is made by any party to a suit.

The following are facts, as revealed by the record, which we deem appropriate for an understanding of the instant appeal.

The husband, in July of 1976, filed for divorce. The wife filed appropriate responsive pleadings. The matter was set for hearing in September of 1976. In October, the wife’s first attorney withdrew from the case. At this juncture, no request in writing had been made for a court reporter to be present. In October, another attorney was retained to represent the wife. Again, motions were filed on behalf of the wife by this attorney and a hearing was set for November, 1976. This hearing was apparently continued and the matter was reset for December, 1976, at which time a hearing was held and testimony heard by the trial court. No request in writing for a court reporter was made by either party. In fact, the only reference to a court reporter is found in the final decree. In the final decree of the trial court, we find the following: “A request was made for a continuance for lack of a reporter and said request was denied.”

Again, we note that we have perused the entire record and nowhere do we find a written request for a court reporter. The trial court further in its decree made disposition of the parties’ assets and ordered attorneys’ fees be paid by the respective parties.

Able counsel for the wife contends that the pertinent statute requires that a court reporter be physically present and then a request in writing can be made. He goes further and argues that since none was present, such a request in this instance would have been a useless act.

We do not agree with able counsel’s interpretation of the statute in question.

We interpret that statute to mean that if a request is made in writing for the services of a court reporter, then such court reporter shall be made available as prescribed by the statute. We believe that the statute in question is clear and that when language of a statute is plain it should be considered to mean exactly what it says. Ala. Industrial Bank v. State ex rel. Avinger, 286 Ala. 59, 237 So.2d 108 (1970); 18 Ala.Digest Statutes &=> 188.

As noted above, clearly in this instance, no request in writing was made by any of the wife’s attorneys. Since there is no transcription of what transpired below, we can only assume, as indicated in brief, that on the day of the hearing the wife made an oral request for a reporter, followed by a motion for a continuance since no such reporter was present. Such, as seen from the above, is not in compliance with the statute.

With the above in mind, the issue then becomes did the trial court err to reversal in failing to grant a continuance. In general, the law is that the granting or denying of a motion for a continuance is within the sound discretion of the trial court. Adkins v. Adkins, 57 Ala.App. 715, 331 So.2d 725 (1976). Specifically, as the husband points out in brief, this general principle of law has been applied in the instance where the trial court refused to grant a continuance on the grounds that a court reporter was absent. Put another way, the Supreme Court of Alabama in Shaw v. Knight, 212 Ala. 356, 102 So. 701 (1925), held that the trial court did not abuse its discretion in failing to grant a continuance for the reason as shown above.

In this instance, keeping in mind the principle of law, as shown above, and the fact that Act No. 25 has not been complied with, we cannot say the trial court erred to reversal. We should not be understood as holding that the trial court was prohibited from granting a continuance.

Other issues raised by the wife related to the disposition of the parties’ assets and attorneys’ fees. All of these matters are within the discretion of the trial court based upon the evidence as heard by the trial court. Since there is no record before us, no error may be predicated on the trial court’s findings in regard to these matters.

Suffice it to say that in the absence of all the evidence heard and received by the trial court, and on which it based its decision, the trial court’s decree would be presumed to be supported by sufficient evidence so as to require affirmance on appeal. Adams v. Adams, Ala.Civ.App., 335 So.2d 174 (1976).

AFFIRMED.

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

      . Who did not represent the wife at any time before.


author: BOWEN, Judge.

text:
    Dennis Aaron DAVIS v. STATE.
    6 Div. 292.
    Court of Criminal Appeals of Alabama.
    July 26, 1977.
    Rehearing Denied Oct. 4, 1977.

      Charles L. Howard, Jr., Birmingham, for appellant.
    William J. Baxley, Atty. Gen., and Michael L. Weathers, Asst. Atty. Gen., for the State.
   ON REHEARING

BOWEN, Judge.

The appellant was indicted on a charge of breaking into and entering an automobile, the property of Suzanne Mary Michaleck, with the intent to steal. A jury returned a verdict finding him guilty of burglary upon which the trial court entered judgment and sentenced the appellant to two years in the penitentiary. The appellant is represented by retained counsel both at trial and on appeal.

Suzanne Mary Michaleck lived in an apartment building which is part of the University of Alabama student housing complex in Birmingham, Alabama. At approximately 9:00 o’clock on the evening of October 9, 1975, she parked and locked her light blue 1973 Volkswagen on the University parking lot adjacent to her apartment building.

At 2:00 o’clock the following morning Ms. Michaleck was awakened by a University security officer and the building manager. She went into the parking lot and saw her car at another parking space from where she had parked it. There was a wire from the engine coil into the back seat and connected to the car battery. This is commonly referred to as a “hot wire” and serves the purpose of allowing one to start an automobile without having a key. The lock button on the door had scratches on it. The steering wheel and column had been lowered and some bolts were on the floor of the car. The steering mechanism contained a lock. By disassembling the column and dropping it, the steering wheel was made functional. The owner’s manual was missing out of the glove compartment.

At approximately 1:20 A.M., October 10, 1975, Officer Bob Roseberry, University of Alabama Police, was patrolling alone in the area of Ms. Michaleck’s apartment. He noticed a man standing on the corner. He circled the block, returned, and saw the appellant. He saw a light blue late model Volkswagen. The engine was turning over and the appellant was in the car.

Officer Roseberry again circled the block stopping for a short time to check the security of another building. When he returned to the same area he saw Officer Fred Armstead of the University of Alabama Police Department talking to the appellant and John Seifert. There was a light blue Volkswagen in front of Armstead’s car which looked like the car Officer Roseberry had seen on the street.

On this same date at approximately 1:30 A.M. Officer Armstead was patrolling the University area alone. He saw Seifert standing next to a gray 1964 Chevrolet. Officer Armstead circled the block and saw the appellant “walking from the Volkswagen”. When he saw the appellant he was about three feet from the Volkswagen walking toward the gray Chevrolet. The door on the driver’s side of the Volkswagen was open.

Armstead stopped in the parking lot and the appellant and Seifert approached his vehicle. Seifert identified the Chevrolet as his automobile. Officer Armstead saw a ratchet, beer cans, and a Volkswagen owner’s manual on the floorboard of the Chevrolet. The manual contained Ms. Micha-leck’s name. There was dirt, grease, and grime on the hands of the appellant.

The appellant testified in his own behalf. He disclaimed any knowledge of the charged crime and maintained that he was in the parking lot to meet a girl named Linda for whom he had been waiting since 8:00 or 8:30 that evening. Before arriving he and Seifert had put two new mufflers on Seifert’s Chevrolet.

The appellant testified that his hands were “always” dirty because he did part-time service station work. The appellant’s father verified this.

I

The appellant alleges that error was initially committed when the trial judge asked defense counsel, in the presence of the jury, if the accused was “going to be sworn”.

“THE COURT: We will have all the witnesses sworn now before we have opening statements. (WHEREUPON, witnesses were brought into the courtroom at which time, the following proceedings were had and done:)
“THE COURT: Is the defendant going to be sworn?
“MR. HOWARD (Defense Counsel): We except, if Your Honor, please. Mr. Davis’ father is seated.
“THE COURT: The defendant? Is he going to be sworn?
“MR. HOWARD: We except to that statement, Your Honor, please. We don’t care to have him sworn at this time.
“THE COURT: That’s your privilege.”
* * * * * *
“Let the record show that the defendant was not sworn, at his request, at this time.”

It is argued that these statements of the trial judge violated the constitutional rights of the appellant under the Fifth Amendment to the Constitution of the United States (“No person shall be . compelled in any criminal case to be a witness against himself.”), Section 6 of the Constitution of Alabama, 1901 (The accused has a right “to testify . . . if he elects to do so.”) and Title 15, § 305, Code of Alabama 1940 (“On the trial of all indictments, . the person on trial shall, at his own request, but not otherwise, be a competent witness;”).

The generally accepted rule is that the trial judge should not comment upon the failure of the accused to testify although the judge may properly instruct the jury on the right of the accused not to testify. Turner v. State, 238 Ala. 352, 191 So. 396 (1939); Pairrett v. State, 26 Ala.App. 198, 155 So. 880 (1934). We know of no rule of law prohibiting a trial judge from asking a defendant if he is going to be sworn at any particular time in the course of a, trial. The statements to which we have referred simply do not constitute a comment on the failure of an accused to testify. The judge is not clairvoyant. See Holt v. State, 46 Ala.App. 555, 246 So.2d 85 (1971).

This court recognizes and upholds the fundamental right against self-incrimination. The trial judge did not request the accused to testify and made no adverse remark when he declined to be sworn. Indeed the judge recognized his privilege not to be sworn. We find as a matter of fact and law that the remarks of the trial judge are not within the coverage of the authorities cited by the appellant.

II

The appellant contends that it was error for the trial court to admit a “hot wire” into evidence where a sufficient chain of custody was not established and where there was no testimony identifying that wire as the identical wire seen on the Volkswagen.

The wire itself merely showed how the crime was committed and tended to show the existence of an intent to steal the car. The wire did not incriminate or connect the appellant to the commission of the crime. There were no fingerprints on the wire or characteristics which would indicate that it belonged to or was used by the appellant. In and of itself it was not an element of the offense charged (as would be narcotics on a charge of possession) nor did it tend to connect the accused to the crime (as would a blood-stained weapon found on the accused or a fingerprint laden instrument used in the commission of a crime).

We have carefully considered the testimony of the witnesses. In view of their testimony that the wire was “similar” or “identical” to the wire found at the scene of the crime it is our opinion that the wire was properly admitted into evidence. While no officer could state as a matter of personal and absolute knowledge that the wire was, in fact, the very same wire removed from the Volkswagen, the evidence of similarity was sufficient to warrant the submission of the question to the jury as to whether it was or was not, in fact, the wire removed from the automobile. Washington v. State, Ala.Cr.App., 339 So.2d 611 (1976); Means v. State, 51 Ala.App. 8, 282 So.2d 356 (1973); James v. State, 17 Ala.App. 490, 86 So. 131 (1920); Stinson v. State, 238 Ala. 240, 190 So. 275 (1939); Higginbotham v. State, 262 Ala. 236, 78 So.2d 637 (1955); Bills v. State, 49 Ala.App. 726, 725 So.2d 706 (1973); Robinson v. State, 49 Ala.App. 511, 273 So.2d 487 (1973); Curtis v. State, 44 Ala.App. 63, 202 So.2d 170 (1967); Smith v. State, 282 Ala. 268, 210 So.2d 826 (1968).

Counsel’s argument that the wire was admitted without the showing of a proper chain of custody is also without merit. Testimony reveals that Officer Johnson removed the wire and gave it to Sergeant Strunk who kept it under lock and key until the morning of the trial. At that time he gave the wire to the district attorney who introduced it into evidence at trial.

Ill

An investigating officer testified that he “ran” the tag number of an automobile to get the full name of the girl named Linda for whom the appellant allegedly had been waiting. That same officer further testified that he was not able to find Linda. We distinguish this case from Berry v. State, 46 Ala.App. 308, 241 So.2d 336 (1970). The officer did not testify to any conversation he had with a non-witness or to anything which he learned from “running” the tag. His testimony was properly admitted.

IV

The trial judge sustained objections by the state to questions by defense counsel designed to elicit testimony concerning the size and number of residential units in the area, whether the appellant was at any time seen carrying any object, and whether any formal charge was ever made against the appellant constituting the offense for which he was told he was arrested. Also defense counsel was cut off from eliciting details concerning the presence of any other individuals in the area and details concerning the size of the parking lot and the vehicles parked there.

Alabama favors the traditional “wide open rule” giving the cross examiner the right to elicit any fact relevant to any issue under the pleadings of the case, including a fact relevant to the cross examiner’s own affirmative case. Gamble, McElroy On Evidence, 3rd Ed., p. 813, § 438.01 and pp. 286-7, § 136.01. Yet it is within the discretion of the trial court to reasonably limit the range of cross examination in respect to collateral and irrelevant matters or with respect to matters that unnecessarily consume time in the trial of a case. A trial is not meant to be “an eternal phenomenon”. Buckelew v. State, 48 Ala.App. 411, 265 So.2d 195 (1972).

Defense counsel was thorough, persistent, and exhaustive in his cross examination. His manner, as reflected in the record, reveals him to be a craftsman in the difficult and disappearing art of effective cross examination. However at times his questioning was repetitious and argumentative. Many of the state’s objections were due to be sustained simply because counsel had already obtained the sought after information in one form or another. On this matter we have examined every error assigned by the appellant as we have every issue presented by this appeal. It is the opinion of this court that counsel was not unreasonably or illegally hindered in his cross examination.

V

The appellant contends that it was error for the trial court to deny the efforts of defense counsel to show on cross examination of the evidence technician that the technician had available to him the assistance of other experts, equipment and labs which were used for gathering, identifying, examining and preserving evidence.

In view of the officer’s testimony that the facilities of the Birmingham Police Department were not available at that time of the morning the action of the trial court was not error. Defense counsel proved that the officer did not seek outside assistance. Any inferences from this failure were properly for argument to the jury.

VI

It is asserted that the trial court failed initially to determine that an investigating officer was a fingerprint expert. There was no abuse of discretion in allowing Officer Strunk to testify as an expert. The court stated that, “It is for the jury to say how much of an expert that person is in the field in which he is testifying”. The state then qualified the officer with no further objection by defense counsel.

The question of whether or not a particular witness will be allowed to testify as an expert is largely discretionary with the trial court, whose decision will not be disturbed on appeal except for palpable abuse. Kozlowski v. State, 248 Ala. 304, 27 So.2d 818 (1946). The officer was properly qualified and it is within the province of the jury to measure the weight and correctness of opinions given by experts. Wilson v. State, 243 Ala. 1, 19, 8 So.2d 422 (1942). No legible fingerprints were discovered and the trial court properly instructed the jury in its oral charge on the subject of expert testimony. For all these reasons we find the action of the trial court to be without error.

VII

An investigating officer testified that he saw the appellant “walking from a Volkswagen”. It is asserted that this constitutes a conclusion of the witness and defense counsel’s objection was due to be sustained. The officer was merely stating what he saw. Any possible error was cured on cross examination when defense counsel adduced testimony as to exactly what the officer saw and that he only saw the accused three feet from the Volkswagen walking toward another car. Rule 45, Alabama Rules of Appellate Procedure.

VIII

Finally appellant argues that the cumulative effect of all the errors committed during his trial resulted in a denial of his rights to a fair and impartial trial by due process of law. A defendant is entitled to a fair trial but not a perfect one. Lutwak v. United States, 344 U.S. 604, 619, 73 S.Ct. 481, 490, 97 L.Ed. 593 (1953). We find that the appellant did receive a fair and impartial trial. His constitutional rights were admirably protected by both defense counsel and the trial judge.

Initially this court affirmed the judgment of the trial court without opinion. Title 13, § 66, Code of Alabama 1940. On application for rehearing the appellant filed a motion pursuant to Rule 39(k), Alabama Rules of Appellate Procedure. This opinion is in response to his request.

We have responded to the major arguments in the appellant’s brief. Additionally we have considered other arguments advanced by the appellant and reviewed the record for error.

APPLICATION FOR REHEARING OVERRULED; OPINION ISSUED.

All Judges concur.


author: BEATTY, Justice.

text:
    Ex parte Dennis Aaron DAVIS.
    No. 77-48.
    Supreme Court of Alabama.
    Dec. 2, 1977.
   BEATTY, Justice.

WRIT DENIED.

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


author: TYSON, Presiding Judge.

text:
    Elton HALL v. STATE.
    6 Div. 505.
    Court of Criminal Appeals of Alabama.
    Oct. 4, 1977.
    As Corrected On Denial of Rehearing Oct. 25, 1977.
    Walter W. Furner of Furner & Boyce, Bessemer, for appellant.
    William J. Baxley, Atty. Gen., and Barry V. Hutner, Asst. Atty. Gen., for the State.
   TYSON, Presiding Judge.

Elton Hall was charged by indictment with “escapes or attempts to escape from the penitentiary” pursuant to Title 14, § 15P, Code of Alabama 1940. The jury found the appellant guilty as charged, and the trial court set punishment at twenty years in the penitentiary.

Stephen W. Hicks, a Bessemer police officer, testified that while on patrol during the early morning hours of August 25, 1976, he stopped a 1970 blue Camero driven by Anita Weed. Officer Hicks asked Weed why she was driving about aimlessly near the Bessemer Courthouse. Hicks testified that approximately an hour and a half later, he observed Weed’s blue Camero parked down from the Bessemer Courthouse and Weed looking in the window of a local realty company. Hicks went in an alleyway behind the courthouse and discovered a cord hanging out of a window on the fourth floor of the courthouse. Hicks testified that he broke the cord and removed a pistol tied on the end, hidden by two decks of cards. Hicks called a police car unit on his radio and when the officers arrived, Weed was taken into custody. Ten to fifteen minutes later, according to Hicks, he observed another cord hanging out of a fourth floor window of the Bessemer Courthouse. Hicks testified that a white cylindrical object, ten to twelve inches long, was attached to the end of the cord. Officer Wilkins, according to Hicks, fired his service revolver at the object, which was about ten feet from the ground, but missed. The object was pulled up to the window. Officer Hicks identified at trial the pistol and decks of cards taken from the cord earlier that evening.

J. H. Mahaffey, a Jefferson County Deputy Sheriff, was working in the Bessemer County Jail on the fourth floor of the courthouse the night of the incident. Mahaffey testified that the appellant was a fingerprint trusty in the jail at that time and had access to the hallway outside the day room. In the hallway, according to Mahaffey, was a telephone. Mahaffey testified that communications between persons in the day room and those in the outside hall were possible by use of visitor windows.

David Farmer testified that on August 24,1976, he was a prisoner in the Bessemer jail and knew the appellant. Farmer stated that he overheard conversations between Johnny Frank Williams and the appellant concerning getting some hacksaw blades into the jail. These conversations, according to Farmer, took place approximately a week before August 25, 1976. Farmer testified that he also heard a conversation between the appellant and other inmates concerning a planned escape. Farmer stated that on the night of August 24, 1976, he heard a shot fired as two inmates, Buddy Borden and Johnny Frank Williams, were pulling something up the outside wall on a string. At this point, according to Farmer, Johnny Frank Williams went to the day room window and tapped to get the attention of the appellant in the hallway. Farmer testified that Williams showed the appellant a piece of paper on which was written a telephone number. According to Farmer, Williams and the appellant had previously discussed the appellant calling Weed to bring some hacksaw blades to the courthouse.

Roger Smith testified that he was an inmate in the Bessemer jail in August of 1976. Smith stated that he had heard the appellant and Williams discuss an escape. According to Smith, Williams threw a pistol, which had been hidden under a fan, out the window after a shot was fired that night. Smith testified that Williams told the appellant to call Weed and ask her “why she didn’t bring the other pistol.” According to Smith, the plan was to have one of the inmates pretend to be ill and to rush the guard who would come back to check on the inmate.

Max Linn, Chief Warden of the Bessemer County Jail, testified that he was called to the jail around 2:30 A.M. on the morning of August 25, 1976. Linn stated that he conducted a general search of the cells on the fourth floor after being informed of the events which had taken place earlier that evening. Linn testified that several hacksaw blades were found under a mattress in block four along with some blades which were hidden under a floor fan. Also, according to Linn, there was evidence of saw marks on several bars.

The appellant testified that he never saw any hacksaw blades, cord or guns in the jail and denied any knowledge of an escape. The appellant stated that Williams told him to call Weed and tell her to do “what she was supposed to do.”

I

Appellant contends that there was a fatal variance between the material allegations of the indictment and the proof.

The appellant was indicted under Title 14, Section 153, Code of Alabama 1940 (Recompiled 1958) which reads as follows:

“Any convict who escapes or attempts to escape from the penitentiary, or from any person or guard having him in charge under authority of law, either within or outside the walls of the penitentiary before the expiration of the term for which he is sentenced, shall, on conviction be imprisoned for an additional term of not less than one year.”

During the course of the trial, the proof established that the appellant was serving a ten year sentence for robbery in the Bessemer County Jail when the escape attempt took place. On May 26, 1976, the appellant was sentenced to ten years imprisonment in the penitentiary for the robbery conviction. Due to a federal court order issued August 29, 1975, by Judges Prank M. Johnson, Jr., and W, B. Hand, the appellant was serving his robbery sentence in the Bessemer County Jail.

Appellant contends that since the indictment charged him with escape or attempt to escape from the penitentiary, and the evidence showed that he was incarcerated in the county jail at the time, a material variance existed between the indictment and the proof, and therefore his motion to exclude the State’s evidence should have been granted.

The appellant was serving his sentence for the robbery conviction in the penitentiary within the meaning of the word as used in Title 14, Section 153, supra. Chief Warden Linn stated that the appellant was receiving time credit on his sentence for the robbery conviction while in the county jail.

In Strickland v. State, 280 Ala. 31, 189 So.2d 771, the Alabama Supreme Court held that the offense of escape under Title 14, Section 153, applies to a prisoner who has not been taken into a penitentiary within the meaning of Alabama law allowing prisoner no credit for obedience to sentence until he is in the warden’s custody. The appellant, in the instant case, was receiving credit on his sentence and was, in the statutory sense of the word, in the penitentiary. He was simply awaiting transfer. Therefore, the trial court properly overruled appellant’s motion to exclude the State’s evidence.

II

Appellant contends that the trial court erred in allowing the introduction into evidence of the trial docket sheet, or bench notes, showing appellant’s previous conviction for robbery.

The trial docket sheet is not a record, but is only a directive to the clerk as to what judgments and orders should be entered on the court’s records. Palmer v. State, 54 Ala.App. 707, 312 So.2d 399; Winn et al. v. McCraney et al., 156 Ala. 630, 46 So. 854; Calvert v. State, 26 Ala.App. 189, 155 So. 389.

In allowing the State to introduce into evidence, over appellant’s specific objection, the trial docket sheet showing appellant’s prior conviction for robbery, the trial court committed reversible error. Palmer, supra; McCarty v. State, 55 Ala. App. 342, 315 So.2d 139; Harris v. State, 54 Ala.App. 10, 304 So.2d 252; Childers v. Holmes, 207 Ala. 382, 92 So. 615.

In Palmer, supra, this Court stated:

“While in Ellis v. State, 244 Ala. 79, 11 So.2d 861, the use of a trial docket was said to be merely cumulative since the witness had admitted the prior offense, and such was deemed not to be prejudicial error, such cannot be said of the case at bar. Here, the trial docket sheet, and the circuit clerk’s testimony were offered as part of the State’s case in chief to show the prior conviction. As noted by the authorities above, such was erroneous. See Title 7, Section 393, Code of Alabama 1940.”

We pretermit consideration of other assignments of error as they are not likely to occur again on retrial of this cause. For the error shown, the judgment of conviction is due to be reversed, and the cause is hereby remanded.

Reversed and remanded.

All the Judges concur.


text:
    Ex parte STATE of Alabama ex rel. ATTORNEY GENERAL.
    No. 77-127.
    Supreme Court of Alabama.
    Dec. 2, 1977.
   SHORES, Justice.

WRIT DENIED.

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