author: BRADLEY, Judge.

text:
    Harry O’DONOHUE v. The CITIZENS BANK.
    Civ. 1136.
    Court of Civil Appeals of Alabama.
    Oct. 19, 1977.

      George E. Trawick, Ariton, for appellant.
    James H. Weatherford, Jr., Enterprise, for appellee.
   BRADLEY, Judge.

This appeal is from a judgment rendered by the Circuit Court of Coffee County for money paid by mistake and for money had and received. Appellant claims (1) that ap-pellee’s suit for money paid by mistake and for money had and received was defective because appellant was improperly served with process at the outset of appellee’s action against him; and (2) that the trial court erroneously granted appellee’s motion for a directed verdict on appellant’s counterclaim for malicious prosecution and false arrest.

The record before us reveals the following facts. Appellant, Harry O’Donohue, resided in Enterprise, Alabama when the events leading to this appeal began. Early in 1975 O’Donohue terminated his employment with Realty and Leasing Corporation of Dothan in order that he might devote full time to caring for his parents, both of whom were seriously ill.

Throughout the year O’Donohue and his parents maintained a savings account which was listed in the name of Kathryn O’Dono-hue, Harry O’Donohue, and W. F. O’Dono-hue, although normally only O’Donohue’s father (Mr. O’Donohue) made deposits into the account.

Sometime during 1975 Mrs. O’Donohue died; thereafter, Mr. O’Donohue learned he was terminally ill with cancer. Despite his illness, Mr. O’Donohue continued to make deposits into the savings account. Shortly before his death, however, Mr. O’Donohue made several large withdrawals. Harry O’Donohue knew of these withdrawals and on several occasions he accompanied his father to the bank when the elder O’Donohue made the withdrawals.

On May 26, 1975 Mr. O’Donohue died of cancer. His death set in motion the bizarre sequence of events which led to this appeal. The day after his father’s death, Harry O’Donohue went to appellee’s bank (The Citizens Bank of Enterprise) to withdraw the funds which remained in the savings account listed in his and his father’s names. O’Donohue carried with him a bank withdrawal book which indicated that $10,704.20 remained in the account. At the bank, however, the teller who waited on O’Dono-hue informed him that bank records showed $18,704.20 in the account. O’Donohue was somewhat skeptical of the teller’s information and asked her to check again. She did and again reported a balance of $18,704.20. At this point O’Donohue informed her that his father had just died and that he was at the bank to get the money remaining in his father’s account. He further informed the teller that he planned to divide the money between himself and his three brothers who had arrived from various parts of the United States and Okinawa to attend the funeral. O’Donohue continued by stating that he seldom saw his brothers due to the diversity of their residences, and therefore he wanted to make sure that there was no mistake with regard to the money in the account. Once again the teller called bank records and asked for the balance in the O’Donohue account. Again she was informed that $18,704.20 remained. O’Donohue testified that although he did not understand the reason for such a discrepancy in his records and those of the bank, he nonetheless concluded that his father had recently deposited the additional $8,000 without his (Harry’s) knowledge.

Since the teller had called bank records three times, O’Donohue accepted her statements that the account contained $18,-704.20. The teller then changed the figure in the withdrawal book from $10,704.20 to $18,704.20 and marked the account closed. O’Donohue then took the money, returned to his home, and divided it equally between himself and his three brothers. After the funeral the four brothers dispersed — one returning to his home in North Carolina, another to his military base in Okinawa, and appellant and his older brother to the latter’s home in Little Rock, Arkansas.

Several days after O’Donohue had withdrawn the money, the bank discovered an error in their accounting system and in this manner learned that the $8,000 credited to the O’Donohue account on May 27 had actually been withdrawn sometime earlier. The bank notified O’Donohue’s attorney that O’Donohue had been paid $8,000 by mistake. On June 9, 1975 O’Donohue’s attorney notified him of the situation, and O’Do-nohue, who was now living in Arkansas, immediately left his home and returned to Enterprise, arriving on June 10. O’Dono-hue met with his attorney and then went to The Citizens Bank. At the bank O’Donohue spoke with the head cashier, Larry Tindoll. Testimony as to what was said during the conversation between the two men is in sharp conflict. Tindoll claimed that O’Do-nohue refused outright to return the money. O’Donohue denied that he made such a statement, claiming that he told Tindoll that he could not pay the bank at that moment because $6,000 of the money had been distributed to his brothers, but that if the bank would give him some time he would attempt to recover the funds. At this point in the conversation, O’Donohue testified that Tindoll demanded the money immediately and twice told O’Donohue that he (Tindoll) would have O’Donohue arrested if the latter failed to pay. The meeting then terminated with Tindoll telling O’Do-nohue that he had better get the money. Tindoll denied that he made such statements.

After his meeting with Tindoll, O’Dono-hue returned to Arkansas where he began his efforts to recover the money mistakenly paid to him by The Citizens Bank. A week after his return to Little Rock, on June 17, 1975, O’Donohue was arrested by the FBI on a charge of bank larceny. The warrant for O’Donohue’s arrest was signed by a federal magistrate and did not disclose who had requested that the arrest be made or how the magistrate had received knowledge of the alleged offense. In October a federal grand jury indicted O’Donohue for bank robbery and in late November-early December O’Donohue was tried by a jury in federal court and acquitted of the charge against him.

After the acquittal, as O’Donohue was leaving the courthouse, an attorney for The Citizens Bank served O’Donohue with a summons and complaint stating a civil cause of action against O’Donohue for money paid by mistake and for money had and received.

After service was made on his client by the attorney for the opposing party, O’Do-nohue’s attorney moved to quash the service of process. The trial court denied this motion. Appellant-O’Donohue contends that the motion to quash service of process was improperly denied for two reasons.

First, appellant claims that a non-resident who voluntarily appears in a forum in which he could be made to appear involuntarily is immune from service of process in a civil suit. This situation is most strikingly portrayed in circumstances such as those before us on this appeal — that is, where a non-resident indicted on a criminal charge voluntarily comes into the forum where he is charged, stands trial, and upon his acquittal is personally served with process notifying him of the civil action.

Although we recognize the importance of such a procedural question — particularly in view of the possibility that a criminal proceeding could be used as a ruse or pretext for bringing a party into the jurisdiction to be served with process — we do not believe the question was properly placed before the trial court so as to permit that court to reach a determination on it.

In appellant’s brief to this court he asserts that the question of immunity from service was placed before the trial court in appellant’s motion to quash service of process. We disagree. After a careful examination of the motion, we are convinced that the only aspect of it which might possibly be deemed to raise the immunity question is found in the first ground of the motion. That ground states:

“(1) That the Defendant is a resident citizen of the State of Arkansas, residing at 5908 Windamere, Little Rock, Arkansas, and was so at the time this suit was filed as was well known to the Plaintiff herein, and was so at the time the action commenced or at such time as the alleged cause of action commenced.”

A reading of this ground readily reveals its inadequacy for the purpose of raising the immunity issue.

Although language in pleadings and motions which is nebulous or unclear should be read in a manner most favorable to the pleader or moving party, such liberal treatment must be denied where the pleading or motion totally fails to inform the opposing party or court as to the cause or issue on which the pleading or motion is based. A motion “shall state with particularity the grounds therefore, and shall set forth the relief or order sought.” Rule 7(b)(1), ARCP. Despite the fact that appellant’s motion properly set out the relief requested, it did not state with sufficient particularity that service should be quashed because it was in violation of appellant’s immunity from service. Thus the issue of immunity was not adequately presented to the trial court, and an issue which is never before that court cannot be the basis for reversal on appeal.

Appellant’s second reason for claiming that his motion to quash service of process was improperly denied is that appellee’s attorney was not authorized to serve appellant-O’Donohue with process.

The gist of this contention is that Rule 4.1(b)(2), ARCP, provides that service by a person other than a sheriff requires special appointment by the court. In the instant case, appellee’s attorney had not been appointed by the court on December 2, 1975, the date on which he served appellant with the summons and complaint. On December 29, 1975 appellant filed a motion to quash service on the ground that appellee’s attorney had not been appointed by the court to effect service; the following day the court took the unusual step of appointing appel-lee’s attorney to serve the summons and complaint on Harry O’Donohue.

We believe that the trial court’s failure to appoint a person, other than the sheriff, to effect service was improper. Nor did the subsequent appointment of appellee’s attorney (after process had already been served and appellant had moved to quash service on the ground that appellee’s attorney had not been appointed at the time of service) cure the defective service which occurred in this case.

Rule 4.1(b)(2) provides:
“As an alternative to delivery by the sheriff, process issuing from any court governed by these rules may be delivered by the clerk to any person not less than eighteen years of age, who is not a party and who has been designated by order of the court to make service of process." (Emphasis supplied.)

And the committee comments to Rule 4.1 state in part:

“ARCP 4.1(b)(2) authorizes the court to allow an appropriate person other than the sheriff to serve process. It is anticipated that such leave will be freely given when requested.”

This rule and the comments thereto indicate that in the absence of a special appointment, personal service by someone other than the sheriff or his deputy is ineffective.

The purpose of Rule 4.1(b)(2) is to provide more economical and efficient service, particularly in situations where service by the sheriff would involve delay or a considerable amount of travel. It is not designed as a mandate for a party’s attorney to make service of process when he pleases, without supervision or authorization by a court. Since a party’s attorney is in a special relationship to the case, a view of Rule 4.1(b)(2) which would permit a party’s attorney to serve process without having been designated to do so by order of the appropriate court would in effect enable a party himself (under the guise of his attorney) to make service on the individual against whom the party is bringing his action. This is precisely the type situation Rule 4.1(b)(2) seeks to prevent when it states that “[a]s an alternative to delivery by the sheriff, process issuing from any court . . . may be delivered by the clerk to any person . . . who is not a party . . . .”

Thus, if service by a person other than a sheriff or his deputy is desired, a request must be made to the court asking for the designation of a particular individual to make service. In the present case no such request was made. Nor did the trial court appoint appellee’s attorney to serve Harry O’Donohue with process. Moreover, the trial court’s subsequent appointment of appellee’s attorney to effect service after the latter had already done so did not correct the failure of The Citizens Bank to follow the proper rules of procedure with regard to service. Therefore, the service of process made upon Harry O’Donohue was ineffective and the trial court improperly denied O’Donohue’s motion to quash service.

The very purpose of service is to confer in personam jurisdiction on a party. Rule 4.1, ARCP. In the case before us the service on O’Donohue by appellee’s attorney acting without appointment by the trial court was ineffective and did not confer in personam jurisdiction on the court. And while we recognize that a party may, by his actions, waive a defect in the manner in which in personam jurisdiction is acquired, e.g. Oden v. McCraney, 235 Ala. 363, 179 So. 191, no such waiver occurred in this instance.

As we have stated earlier, the trial court improperly denied appellant’s motion to quash service of process; because of this action by the court appellant was compelled to answer appellee’s complaint, otherwise he would have subjected himself to a default judgment in favor of appellee. Rule 55, ARCP. Thus appellant’s answer in response to appellee’s complaint for money paid by mistake and for money had and received did not constitute a waiver of appellant’s right to complain of defective service.

Nor did the fact that appellant filed a counterclaim against appellee for malicious prosecution and false arrest waive appellant’s right to assert on appeal that the trial court failed to acquire personal jurisdiction over him.

A counterclaim is deemed to be compulsory “if there is any logical relation of any sort between the original claim and the counterclaim.” Rule 13, ARCP, committee comments.

The logical relation test used in Alabama is the most liberal of several tests which are used to determine whether or not a counterclaim is compulsory. 6 Wright & Miller, Federal Practice and Procedure: Civil, § 1410. Nonetheless, the logical relation test has by far the widest acceptance among the courts. Wright & Miller, supra. Basically, it allows a court to apply Rule 13(a) to any counterclaim which should be tried with the original claim in order to avoid a substantial duplication of effort, Diamond v. Terminal Railway Alabama State Docks, 421 F.2d 228 (5th Cir.), or in which both the original claim and the counterclaim arise out of the same aggregate of operative facts in either of two respects: the first alternative being that the facts taken as a whole serve as the basis for both claims; the second alternative being that the sum total of facts upon which the original claim rests create legal rights in a party ■that would otherwise have remained dormant. Revere Copper & Brass, Inc. v. Aetna Casualty & Surety Co., 426 F.2d 709 (5th Cir.).

The record before us demonstrates that the facts which gave rise to the bank’s original claim against O’Donohue also led to the latter’s counterclaim for malicious prosecution and false arrest. Thus, under any or all of the aforementioned corollaries to the logical relation test appellant’s counterclaim against appellee was compulsory.

Under Rule 13(a) a party who fails to plead a compulsory counterclaim against an opposing party is deemed to have waived such claim and cannot bring it in a subsequent action. And since a party who is in a position to assert a compulsory counterclaim has no alternative but to maintain that claim against an opposing party (or lose it), his act of maintaining it does not constitute a waiver of any jurisdictional defense he previously or concurrently asserts. Neifeld v. Steinberg, 438 F.2d 423 (3rd Cir.); Dragor Shipping Corp. v. Union Tank Car Co., 378 F.2d 241 (9th Cir.); Basse v. American Photograph Corp., 299 F.2d 666 (10th Cir.). Thus, appellant’s assertion of his compulsory counterclaim for malicious prosecution and false arrest did not waive his right to claim that the trial court did not have in personam jurisdiction over him. Since the service which occurred in this case was ineffective, the trial court never acquired personal jurisdiction over appellant. Therefore the judgment in favor of appellee for money paid by mistake and for money had and received must be reversed.

Appellant’s second assignment of error is that the trial court improperly granted ap-pellee’s motion for a directed verdict and thus prevented appellant’s action for malicious prosecution and false arrest from reaching the jury.

The facts with regard to this matter are as follows. At trial O’Donohue was asked by his attorney if Mr. Tindoll (the bank cashier) had threatened to have O’Donohue arrested if the latter failed to return the money which had been mistakenly paid to him by the bank. O’Donohue replied that Tindoll had twice threatened him with arrest at their meeting on June 10. On cross-examination by appellant’s attorney, Tin-doll denied that he had threatened to have appellant arrested. No other evidence was presented which would indicate whether or not The Citizens Bank (or one of its employees) swore out the complaint for bank robbery upon which appellant was arrested.

At the close of the evidentiary phase of the trial, appellee’s lawyer moved for a directed verdict on appellant’s counterclaim for malicious prosecution and false arrest. The trial court granted this motion on the ground that appellant had not presented a scintilla of evidence which, if believed, would cause a jury to find that The Citizens Bank (or its agent) had instigated or authorized the arrest of appellant.

When the trial court granted appellee’s motion for a directed verdict, O’Donohue’s lawyer requested that the case be re-opened in order that appellant might call as a witness either the FBI agent who arrested appellant or the federal magistrate who signed the warrant for O’Donohue’s arrest. Appellant’s attorney pointed out to the court that it was necessary to call either of these persons in order to prove who had originally sworn out the complaint against appellant. The trial court denied appellant’s request because appellant’s attorney had announced “defendant [appellant] rests.”

In his motion for a new trial, appellant attempted to submit copies of arrest records which had been located in Little Rock, Arkansas. Appellant contended that these records were “new evidence” since they had not been available to appellant at trial. The court refused to permit this evidence and rejected appellant’s motion for a new trial on the grounds that the “new evidence” was not relevant in view of the fact that there was no evidence presented at trial to indicate that the bank (or its agent) had sought to have O’Donohue arrested.

We believe that the trial court erred in granting appellee’s motion for a directed verdict and in its denial of appellant’s motion for new trial.

It may be stated as a general rule that a party is entitled to a directed verdict where the law would not authorize a jury to render a verdict on the evidence or where a verdict by the jury would be contrary to the principles of law as applied to the facts presented at trial. However, this rule must be read in context with the Alabama “scintilla of evidence” rule. Thus, if there is a scintilla of evidence supporting the position of the party against whom the motion is made, so that his case is entitled to go to the jury, a directed verdict cannot be granted. Moreover, when a directed verdict is requested, the entire evidence must be viewed in a light favorable to the opposing party. Kilcrease v. Harris, 288 Ala. 245, 259 So.2d 797. And a directed verdict should be refused where the evidence is in conflict with regard to any material issue or where reasonable inferences may be drawn from the evidence actually presented in support of the claim against which the motion is sought. Birmingham Electric Co. v. McQueen, 253 Ala. 395, 44 So.2d 598; Baker v. Patterson, 171 Ala. 88, 55 So. 135.

In the instant case there was conflicting testimony as to whether appellee’s cashier threatened to have O’Donohue arrested. If the jury believed that the cashier made such a threat, it would be reasonable to infer that the latter carried it out — particularly since O’Donohue was shortly thereafter arrested by the FBI.

The evidence which appellant actually presented at trial (and reasonable inferences therefrom) was sufficient to meet “the least particle” or “smallest trace” test necessary to constitute a scintilla of evidence in support of his claim that The Citizens Bank instigated his arrest. A scintilla of proof that the bank instigated his arrest was vital to O’Donohue’s counterclaim against the bank for malicious prosecution and false arrest. The trial court incorrectly held that appellant had not provided such proof. Thus, the trial court granted appellee’s motion for a directed verdict and thereby prevented the jury from receiving for its consideration appellant’s action for malicious prosecution and false arrest. The trial court’s action with regard to this matter was in error.

REVERSED AND REMANDED.

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

      . Appellant stated this ground with sufficient particularity to permit its consideration by the trial court.

      . This is not to say that a lawyer for a party cannot be appointed to make service. It is merely to say that in no other circumstance is the necessity for the court’s supervision more adequately demonstrated.


source: Caselaw Access Project

author: WRIGHT, Presiding Judge.

license: Public Domain

text:
    Martha N. SHEFFIELD v. Jerry H. SHEFFIELD.
    Civ. 1152.
    Court of Civil Appeals of Alabama.
    Oct. 19, 1977.

      Mylan R. Engel, Mobile, for appellant.
    Horace N. Lynn, Montgomery, for appel-lee.
   WRIGHT, Presiding Judge.

This is an appeal from denial of a Rule 60(b) motion and denial of a petition for modification of a judgment for child custody. We affirm.

Parties were married in 1974. Two children were subsequently born. In May 1976, Martha Sheffield left her husband and went to the home of her parents in Baldwin County. She filed for divorce in Baldwin County on May 14 and secured a temporary custody order on May 17. Before time for answer, the parties reconciled and returned to Autauga County. On June 17, Martha secured dismissal of the action for divorce through her attorney. On June 3, 1976, a divorce was granted upon petition, answer and waiver by the Circuit Court of Autauga County. Custody of the children was granted to the father. Martha learned of the granting of the divorce in July 1976. The parties were living together at that time. They continued to live together until November 1976, when Martha moved out, leaving the children. Jerry Sheffield married another woman in December 1976.

The present proceedings were begun by Martha on December 29, 1976. Many witnesses were presented in oral hearing in February 1977. The court entered judgment denying all relief on March 1, 1977. The Rule 60(b) motion filed by Martha contained two grounds — fraud in obtaining her signature to the answer and waiver to the divorce petition and absence of jurisdiction in the Circuit Court of Autauga County to grant a divorce.

The issue of fraud in securing the answer and waiver was one of fact. The court heard testimony on whether Martha knowingly executed that instrument. There was evidence to support a finding that she sufficiently knew what she was signing. We presume such finding to be correct. Metcalf v. Metcalf, 340 So.2d 38 (Ala.Civ.App.1976). In addition a 60(b) motion on the ground of fraud must be brought within four months of the judgment. The motion here was not timely brought. ARCP 60(b).

The issue of want of jurisdiction in the Autauga court is not well taken. Though there was a divorce action pending in the Baldwin County Court at the time the judgment was granted in Autauga County, there was no want of jurisdiction. The circuit courts of Alabama have concurrent jurisdiction of all matters. Ala.Const. Art. 6, § 142. However, when jurisdiction of a circuit court has first attached that court has the exclusive right to continue to a final determination of the causes. Clements v. Barber, 49 Ala.App. 266, 270 So.2d 815 (1972); Ex parte Burch, 236 Ala. 662, 184 So. 694 (1938). Another court may be restrained from assumption of jurisdiction. English v. Macon, 46 Ala.App. 81, 238 So.2d 733 (1970). Unless there is objection, even though one court has assumed jurisdiction of a matter, another court with concurrent authority may act in the same matter. Tittle v. Holt, 252 Ala. 388, 41 So.2d 203 (1949). The answer and waiver amounted to submission to the jurisdiction of the Autauga court.

We come now to the issue of the denial of modification of custody.

We have carefully read the evidence heard by the trial court as to the fitness of the parties for custody. We have carefully considered the arguments heard orally and presented in brief. We are not going to discuss the evidence as to the relative merits of these parents. It is disconcerting, to say the least, that either of them should have custody. Neither has displayed much moral value or self-restraint. The company they travel in, other than their parents, appears to be even worse. However, the trial court was faced with the necessity of making a choice between these biological parents. It did so, we are sure, with trepidation but with hope for the best interest of the children. Having seen the parties and the witnesses, heard their testimony and observed their demeanor, the trial court is properly presumed to be better able to serve the welfare of the children than can we. Featherston v. Featherston, 271 Ala. 238,123 So.2d 120 (1960). We find no plain abuse of the discretion given by law to the trial court in matters of child custody. Higgins v. Higgins, 336 So.2d 194 (Ala.Civ.App.1976).

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.

      . We need not comment upon the fact that venue properly lay in the Autauga court and time for challenging venue in the Baldwin court had not expired when the judgment of the Autauga court was entered. Nor need we comment that the issue became moot when the action was dismissed upon motion of the plaintiff in the Baldwin court.


author: HOLMES, Judge.

text:
    Judith S. CRITTENDEN v. Patricia B. PARKER and Arthur Parker.
    Civ. 1155.
    Court of Civil Appeals of Alabama.
    Oct. 19, 1977.

      Edward Still, Birmingham, for appellant.
    James S. Garrett, Birmingham, for appel-lees.
   HOLMES, Judge.

This is an appeal from the Circuit Court of Jefferson County’s action denying appellant’s “MOTION TO REINSTATE DECREE, IN PART Or to Set Aside the Court’s Order . . . ” We affirm.

The record reveals the following: Mrs. Parker retained Ms. Judith Crittenden, an attorney, to represent her in obtaining a decree of separate maintenance from Mrs. Parker’s husband. Mrs. Parker’s husband is an attorney. Various legal services were performed by Ms. Crittenden on behalf of her client, Mrs. Parker. The services performed by Ms. Crittenden, the appellant here, resulted in a final judgment of separate maintenance. This decree was entered on August 6, 1976, and provided that Mr. and Mrs. Parker were to live separate and apart; Mrs. Parker was to receive “alimony”; and Ms. Crittenden was awarded an attorney’s fee of $2,000.

Thereafter, on August 10, 1976, some four days after the decree for separate maintenance was entered, Mrs. Parker filed a motion to vacate the August 6 decree. Ms. Crittenden did not represent Mrs. Parker at this proceeding. On the same day the motion to vacate was filed, August 10, the trial court set aside the decree of separate maintenance.

On September 7, 1976, Ms. Crittenden filed the aforesaid motion to reinstate or set aside. This motion which is the basis of this appeal alleged in pertinent part as follows:

“4. Petitioner alleges that having represented the Plaintiff throughout the proceeding herein including the oral hearing on the merits, she had a vested interest in the fee awarded by the Court in its Decree of August 6, and that the Court erred in setting aside that portion of the Decree.”

The Parkers jointly, in response to the motion to reinstate, etc., filed a motion to strike. This motion alleged, among other items, that the Parkers had re-established their marriage relationship and were living together as man and wife.

A hearing was held and the trial court, in its decree dated February 25, 1977, held in pertinent part as follows:

“2. That the Motion to Reinstate Decree in Part or Set Aside the Court’s Order of 8-10-76 be and the same is hereby overruled and denied.”
Hence, this appeal.

The dispositive contention of the appellant is that since a final judgment for separate maintenance had been entered, the attorney had an equitable interest in the court’s award of an attorney’s fee and, therefore, the trial court erred in setting aside that portion of the decree relating to attorney’s fee. We disagree.

Appellant, Ms. Crittenden, contends that Tit. 46, § 64, Code of Alabama 1940 (the attorney lien statute), requires that the appellant’s motion to reinstate, etc., should have been granted. Appellant, in an excellent brief, recognizes that the rights established by Tit. 46, § 64, do not generally extend to actions for divorce and alimony or domestic relation matters. See Johnson v. Gerald, 216 Ala. 581, 113 So. 447 (1927); Bell v. Bell, 214 Ala. 573, 108 So. 375 (1926). Appellant, however, contends that in neither Gerald nor Bell had a final judgment been entered and, therefore, these cases are distinguishable from the instant appeal. Appellant cites this court’s decision in Carnes v. Shores, 55 Ala.App. 608, 318 So.2d 305 (1975), as support of her position.

It is clear to this court that the underlying principle for the holdings in Gerald and Bell, supra, is that if the rights created by Tit. 46, § 64, were applicable in domestic relation cases, such could be an obstacle to reconciliation. Hindrance of reconciliation in such cases would be contrary to public policy. While this court did allow Tit. 46, § 64, to have force and effect in Carnes, supra, we pointed out that the divorce in that case had been completed and the action brought in that case was, in what could be called a domestic relation case, for the purpose of enforcing a previous judgment which had become final, to wit, past due alimony payments.

Here, in this instance, we do not have a decree of final divorce; we have a decree of separate maintenance. Such a decree in effect maintains the marital status and looks to reconciliation and resumption of the family relationship. Atkinson v. Atkinson, 233 Ala. 125, 170 So. 198 (1936).

To this court, the legal principle that Tit. 46, § 64, as a matter of public policy, should not apply in certain domestic relation type cases is entirely applicable and appropriate in this case. The parties have reconciled; a decree of separate maintenance allows them to do so with relative ease. We, therefore, find the trial court did not err.

While we deem the above to be disposi-tive of the appeal, the appellant additionally contends that “when a dismissal or settlement is motivated by a desire to deprive the attorney of a fee, the attorney has an equitable interest in enforcing an attorney lien” and, therefore, in view of the quoted principle the trial court erred in its action.

Suffice it to say that the trial court could have concluded from the evidence before it that such was not the motivation in the Parkers’ reconciliation and their subsequent motion to dismiss.

We should not be understood as holding that the appellant-attorney is without legal remedy in collecting a reasonable fee for her services. While we are aware of certain practical problems, there are established legal processes wherein appellant may obtain any compensation due her for services performed.

The case is due to be affirmed.

AFFIRMED.

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

      . We note that thereafter, on April 8, 1977, the trial court granted the appellant’s Ms. Critten-den, motion to intervene, presumably for purposes of appeal. No issue of this action is presented on this appeal and we make no comment concerning this action by the trial court.

      . This interest arises by virtue of Tit. 46, § 64, Code of Alabama of 1940.


text:
    Neal L. AARON v. Nancy S. AARON.
    Civ. 1172.
    Court of Civil Appeals of Alabama.
    Oct. 19, 1977.

      Carl E. Chamblee, Birmingham, for appellant.
    W. Howard Donovan, III, of Skinner & Large, Birmingham, for appellee.
   HOLMES, Judge.

This is an appeal from the Circuit Court of Jefferson County’s action refusing to allow the husband to discontinue making certain alimony payments.

The parties to this appeal were divorced in March of 1976. In the decree, the following is found:

“FIFTH: Defendant is ordered to pay $500.00 as lump sum alimony to the plaintiff and to further pay $125.00 a month as periodic alimony payments for a period not to exceed thirty (30) months; provided, however, that the plaintiff continue under a doctor’s care for her emotional disturbances or be enrolled in and participating in a vocational rehabilitation program during this period. Upon her release from treatment and completion of vocational rehabilitation training, the alimony payments are to cease if such release and completion predate thirty (30) months.”

In February of 1977, the husband filed in the circuit court what he entitled “MOTION TO STRIKE FIFTH PARAGRAPH OF FINAL JUDGMENT OF DIVORCE.” The fifth paragraph is that portion of the decree of divorce referred to hereinabove. In this same motion, the husband attacked the constitutionality of Alabama’s alimony statute and made certain allegations regarding a lack of due process.

At the outset, we would note that what exactly transpired below is not a paragon of clarity. In any event, after the filing of the aforesaid motion by the husband, the wife filed with the trial court a petition for rule nisi. This petition is bottomed on the premise that the husband has not complied with the aforesaid paragraph 5 of the original decree of divorce. This petition by the wife was apparently filed on March 21, 1977.

On the 11th day of April, 1977, the trial court issued an order overruling the husband’s motion. The trial court’s order gives no reason for this action. However, the bench notes indicate the husband failed to appear. The husband then filed a motion for continuance.

Thereafter, on the 25th of April, 1977, the trial court entered an order regarding all of the above motions and petition. The trial judge’s order begins as follows:

“This cause coming to be heard, on the plaintiff’s petition for Rule Nisi, and the defendant’s motion to strike paragraph 5 of the Final Decree of Divorce, . . . ” [Emphasis supplied.]

The trial court found the husband in contempt, ordered an arrearage of alimony paid, ordered the husband to pay the wife’s attorney a fee of $500, and further ordered the husband to pay to the wife $250 which represents expenses the wife incurred to prosecute the rule nisi. It is from this action by the trial court that the husband appeals.

It is clear to this court from the record before this court and the briefs that a hearing or hearings were held by the trial court on the matters presented on this appeal. It is equally clear that there was no court reporter present or transcription made regarding these matters and none are before this court. Additionally, nothing appears in the record that relief was attempted to be sought by the use of ARAP Rule 10(d), (e), and (f).

As Judge Bradley said in Old Southern Life Insurance Company v. Spinato, 57 Ala.App. 416, 419, 329 So.2d 106, 108 (1976):

“The burden is always on the appellant to perfect his appeal in the manner required by law, and it is his duty to see that all the evidence before the trial court is in the record on appeal. Wilson v. Smith, 289 Ala. 374, 267 So.2d 446. The reason for this is that the appellate court is confined to the record before it in deciding the appeal. J. H. Morris, Inc. v. Indian Hills, Inc., 282 Ala. 443, 212 So.2d 831. The record on appeal does not contain the transcript of evidence and, in view of the issues presented for decision, raises nothing that can be decided by this court.”

The order of the trial court is therefore due to be affirmed.

However, for the benefit of interested parties, we would note the majority of the husband’s arguments regarding the constitutionality of Alabama’s alimony statute has been answered by this court in Orr v. Orr, Ala.Civ.App., 351 So.2d 904 (1977); Blackwell v. Blackwell, Ala.Civ.App., 348 So.2d 500 (1977). Additionally, we find no merit in the husband's argument that Tit. 34, § 39(3), Code of Alabama 1940, is unconstitutional. We would further note that this court is not to be understood as affirming or disaffirming the trial court’s action in regard to the $250 for expenses. However, in view of the state of the record, we do not feel we can properly reach the question on this appeal.

The attorney for appellee has petitioned this court for an award of an attorney’s fee on appeal. An award of $350 is hereby made.

AFFIRMED.

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


text:
    PROGRESSIVE CASUALTY INSURANCE COMPANY, a corporation, et al. v. Ralph A. BLYTHE, Jr., d/b/a Blythe Insurance & Investments.
    Civ. 1199.
    Court of Civil Appeals of Alabama.
    Oct. 19, 1977.

      Richard A. Ball, Montgomery, for appellants.
    W. Scears Barnes, Jr., Alexander City, for appellee.
   HOLMES, Judge.

This is an insurance ease.

The original suit was filed by Barbara Sue McClure against appellant, Progressive Casualty, seeking proceeds from an insurance policy. Progressive filed a third-party complaint seeking indemnity against appel-lee, Ralph A. Blythe, Jr., d/b/a Blythe Insurance & Investments. The basis of the third-party action was that Blythe had wrongfully signed the name of Bobby Jean McClure to the portion of an insurance application dealing with rejection of uninsured motorist coverage.

The case between McClure and Progressive was settled for $7,500. On January 27, 1977, the third-party suit was tried in the Circuit Court of Tallapoosa County before a jury resulting in a verdict and judgment for Blythe. During the trial of the case, Progressive requested a directed verdict which was denied. Progressive then filed a motion for judgment n. o. v. or, in the alternative, for a new trial, both of which were denied. Appellant is now seeking relief from this court alleging error in the trial court’s denial of appellant’s motion for a directed verdict and judgment n. o. v.

The pertinent facts as revealed by the record disclose the following:

Since January, 1965, Allyson Blythe has operated an independent insurance agency and has dealt in real estate and automobile financing. In financing automobiles, he customarily made application for insurance in connection with the financing contract. In October of 1975, Curtis Mann called Blythe, stating that he wanted to sell a motorcycle to Bobby McClure and wanted Blythe to finance it. As part of the financing arrangement, Mann and Blythe agreed on an insurance policy for the motorcycle which covered liability and physical damage. Mr. Blythe never discussed the policy with the named insured, McClure, although the cost of the insurance was added to the financing contract and included in the selling price of the motorcycle. Mr. Blythe signed the name of Bobby J. McClure to the application and also signed McClure’s name to the part of the insurance application which rejects uninsured motorist coverage. Appellee Blythe testified that he intended the purported signature of the applicant to appear as the genuine signature of the applicant.

A short time after the insurance was taken out, Barbara Sue McClure was involved in an accident with an uninsured motorist and attempted to recover from Progressive under the policy. As set out above, a settlement was made because the signing of McClure’s name was not effective to reject the uninsured motorists coverage. See State Farm Mutual Automobile Ins. Co. v. Martin, 292 Ala. 103, 289 So.2d 606 (1974).

Appellant contends that appellee-Blythe is liable to appellant for the amount which appellant had to pay as a result of the rejection being ineffective by virtue of Blythe signing McClure’s name. Appellant argues, therefore, that the trial court was in error in denying his motions for directed verdict and judgment n. o. v.

Appellee, in turn, argues that there is a fatal variance between the pleadings and the proof in that appellant did not elect as to which alternative he would rely under Tit. 7, § 108, Code of Alabama 1940. Appel-lee contends that this alone is sufficient to affirm the trial court and jury verdict. We cannot agree.

In all averments of fraud or mistake, the circumstances constituting fraud or mistake shall be stated with particularity. See Rule 9(b), ARCP. This rule is designed to qualify the generalized notice pleading permitted by Rule 8(a).

“But this special requirement as to fraud and mistake does not require every element in such actions to be stated with particularity. It simply commands the pleader to use more than generalized or conclusory statements to set out the fraud complained of. The pleading must show time, place and the contents or substance of the false representations, the fact misrepresented, and an identification of what has been obtained. . . .” 1 Lyons, Alabama Practice, at 130.

After a careful review of the record, this court finds that the third-party complaint, in the original and amended version, is sufficient to allege a good cause of action in fraud. All the pertinent facts on which the cause of action was based were set out as required by the Alabama Rules of Civil Procedure. We therefore find no merit to appellee’s contention that an election must be made. This is due to the fact appellant’s complaint was adequate to support a cause of action in fraud, whether the fraud was willfully to deceive, recklessly without knowledge or by mistake and innocently. All parties were informed as to the issues; the proof was confined to the issues; and there is, therefore, no variance between the pleadings and proof so as to preclude a review of the trial court’s action.

The question now for answer by this court is whether a soliciting insurance agent is liable for damages arising from his misrepresentations to an insurance company. Should that question be answered in the affirmative, the next question is whether the trial court erred in denying appellant’s motion for directed verdict and/or judgment n. o. v.

Appellant contends appellee-Blythe should have to indemnify Progressive for the loss sustained by reason of appellee’s misrepresentation that McClure’s signature was authentic. Tit. 7, § 108, Code of Alabama 1940, provides that:

“Misrepresentation of material fact, made wilfully to deceive, or recklessly without knowledge, and acted on by the opposite party, or if made by mistake and innocently, and acted on by the opposite party, constitute legal fraud.” [Emphasis supplied.]

As is clear from the undisputed evidence, appellee admitted that he signed the rejection and did so with the intent that the insurer (appellant-Progressive) would believe that it was the genuine signature of the insured. It is a clear proposition of law that a misrepresentation of a material fact, whether intended to deceive or not, may create a right of action if the other party reasonably relied thereon and it formed an inducement to his prejudice. See Hall Motor Co. v. Furman, 285 Ala. 499, 234 So.2d 37 (1970).

In light of State Farm Mutual Automobile Ins. Co. v. Martin, supra, it is obvious that appellant was induced to rely to his prejudice by reason of the misrepresentation. In that case, the court said that a rejection of uninsured motorist coverage will be effective only if signed in writing by the named insured. Therefore, as in the present case, if the named insured didn’t sign the rejection, the insurer would still be forced to pay under that portion of the policy even if someone attempted to sign for the applicant. Thus, appellant relied upon appellee’s representation, whether innocent or not, that the applicant’s signature was authentic.

Along the same line, appellee contends that appellant-Progressive was not bound by the application for insurance and could have rejected it before it became effective, thus relieving appellee of any liability based upon its representations. Such is not the case. As stated by the Court of Appeals of Alabama in Crumpton v. Pilgrim Health & Life Ins. Co., 35 Ala.App. 363, 366, 46 So.2d 848, 851 (1950):

“The principal has a right to presume that the representations made to him by his agent are true and accurate.”

Thus, appellant-Progressive had every reason and right to believe that the signature of McClure on the application was authentic and would relieve them of any obligation for uninsured motorist coverage. To hold otherwise would impose an unreasonable burden on the insurance company and require them to inquire into each agent’s representation to determine its validity.

Appellee, through able counsel, further contends that no liability can be imputed to appellee-Blythe unless appellant had issued specific instructions concerning the manner of filling out insurance applications. This point is well taken in view of cases holding an insurance agent liable for damages arising out of noncompliance with instructions. See Manufacturers Casualty Insurance Co. v. Martin-Lebreton Insurance Agency, 242 F.2d 951 (5th Cir. 1957); Phoenix Insurance Co. v. Seegers, 192 Ala. 103, 68 So. 902 (1915).

However, the issue in this case is one of whether a soliciting insurance agent is liable to his principal-insurance company for damages caused by his misrepresentation upon which the principal relied. The Supreme Court of Alabama in Ringer v. First National Bank of Stevenson, 291 Ala. 364, 370, 281 So.2d 261, 267 (1973), stated that:

“It is fundamental that all persons are under a duty not to fraudulently misrepresent material facts to persons with whom they have business dealings. The Restatement of Torts, Section 525, states:
“ ‘One who fraudulently makes a misrepresentation of fact, opinion, intention or law for the purpose of inducing another to act or refrain from action in reliance thereon in a business transaction is liable to the other for the harm caused to him by his justifiable reliance upon the misrepresentation.’ ”

The facts are wholly without dispute. The record reveals that appellee-Blythe signed the name of McClure with the intention of representing to appellant-Progressive that it was the authentic signature of McClure. Appellant, in issuing the policy, relied on such representation and eventually became liable by virtue of its invalidity. Such a chain of events constitutes a case of legal fraud, whether the representation was innocent or otherwise.

It is a settled proposition of law that an insurance agent is liable in damages for any loss sustained by the company arising from the agent’s breach of duty, or by reason of any agent’s failure to follow instructions, unless the company is estopped or has waived its right to take advantage of the breach of duty in the particular case. See 44 C.J.S. Insurance § 159 (1945); Manufacturer’s Casualty Insurance Co. v. Martin Lebreton Insurance Agency, supra; Phoenix Insurance Co. v. Seegers, supra.

This court can find no evidence in the record that appellant-Progressive waived its rights by condoning such activity in the past. The appellee testified that he had followed this procedure for years. However, such activities do not impart knowledge to the appellant so as to create a waiver or estoppel.

Summarizing, this court, after a careful review of the record, finds the facts in this instance constitute a case of legal fraud as set out in Tit. 7, § 108, Code of Alabama. Appellee misrepresented a material fact, the appellant justifiably relied on such misrepresentation and a loss was sustained. The law is settled that appellee must indemnify the appellant for such loss sustained by appellee’s breach of duty.

We now proceed to ascertain whether the trial court erred in denying appellant’s motions for directed verdict and judgment n. o. v.

The rule in Alabama is that neither a motion for directed verdict nor a motion for judgment n. o. v. should be granted if there is any conflict in the evidence for the jury to resolve, and the existence of such conflict is to be determined by the scintilla rule. See McLarty v. Wright, 56 Ala.App. 346, 321 So.2d 687 (1975).

In Southern Glass and Builders Supply Co. v. United States, 398 F.2d 109, 111 (5th Cir. 1968), the court said:

“Whenever the evidence is such that fair-minded men may draw different inferences or different conclusions therefrom, a question of fact has been presented which only the jury may decide. .
But when there is no evidence presented from which a rational conclusion can be drawn in favor of a party, the District Judge may direct a verdict against such party.”

As is evident from the record and briefs filed with this court and as indicated above, there were no pertinent facts in dispute. Thus, the question before the trial court was one of law. There were no conflicts in the evidence for the jury to resolve and, therefore, the trial court erred as a matter of law in denying appellant’s motions for directed verdict and judgment n. o. v.

This cause is thus due to be reversed and remanded to the trial court for entry of a judgment not inconsistent with this opinion.

REVERSED AND REMANDED FOR ENTRY OF A JUDGMENT NOT INCONSISTENT WITH THIS OPINION.

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


author: PER CURIAM.

text:
    Jerry BURKES v. STATE.
    8 Div. 751.
    Court of Criminal Appeals of Alabama.
    April 19, 1977.
    Rehearing Denied May 24, 1977.
    Larry Waites, Birmingham, for appellant.
    William J. Baxley, Atty. Gen., and Jack A. Blumenfeld, Asst. Atty. Gen., for the State.
   PER CURIAM.

The appellant, Jerry Burkes, was indicted by the grand jury of Marshall County for the offense of rape, was convicted of assault with intent to ravish, and was sentenced to the penitentiary for 11 years. He appeals to this Court.

Appellant was at all stages of his trial in the lower court, and is here, represented by counsel of his own choice. This cause was submitted on briefs.

Appellant, in his brief, complains that the trial court erred to his prejudice by its action in overruling his objection to a question propounded by the District Attorney to Officer Cole, a witness for the State, and refusing to grant appellant’s motion to exclude Officer Cole’s answer.

In the record we find the following occurred during the re-direct examination of Officer Cole by the District Attorney:

“MR. STARNES (Continued):
Q Did (the prosecutrix) identify her assailant to you?
A Yes, sir.
Q By name?
A Yes, sir.
MR. BEARD: Your Honor, note my objection and move to exclude it. It’s not a part of the res gestae and represents prejudicial error.
THE COURT: It comes too late, Mr. Beard.
MR. STARNES: That’s all.”

Appellant in his brief argues that in cases of this type the State may show by witnesses that the prosecutrix complained to them of having been raped, but such evidence must be limited on direct examination to the bare fact of complaint. In our opinion this is a correct statement of the law, however, there are exceptions to it. By a careful reading of the record before us we find that the appellant on cross-examination of prosecutrix had already brought out the fact that the prosecutrix had identified the appellant by name as her assailant. She had already identified her assailant by name to Officer Cole, to her brother, her friend, and her friend’s husband, and to all law enforcement officers with whom she had talked, to her doctor, and to everybody she came in contact with.

We hold that there is no error in the trial court’s action in refusing to exclude the answer of the witness on motion of appellant when the matters sought to be excluded were first introduced in the case by answers to questions propounded to the prosecutrix by appellant on cross-examination. Alabama Power Company v. John N. Nichols et al., 282 Ala. 704, 213 So.2d 912; Bray v. State, 131 Ala. 46, 31 So. 107; Aaron v. State, 273 Ala. 337, 139 So.2d 309.

Next the appellant complains in his brief that the trial court erred to his prejudice in overruling his objection to the court’s instructions to the jury with regard to the crime of assault with intent to ravish, insomuch as there is no evidence indicating any other offense than the crime of rape. Appellant contends the evidence does not support the jury’s verdict finding him guilty of an assault with intent to ravish, because the evidence is undisputed that appellant was guilty of rape or nothing. The indictment under which the appellant was convicted charges the offense of rape, such an indictment will sustain a conviction of assault with intent to ravish. Kelsoe v. State, 50 Ala.App. 378, 279 So.2d 549; cer-tiorari denied, 291 Ala. 786, 279 So.2d 552; Williams v. State, 51 Ala.App. 1, 282 So.2d 349; certiorari denied, 291 Ala. 803, 282 So.2d 349. The question presented to this Court, is there sufficient evidence in the record before us to sustain the verdict of assault with intent to ravish?

The prosecutrix testified that she was 24 years old, had never married, was living by herself in a dwelling house in a small community in Marshall County on September 14th, 1974, that soon after 4:00 o’clock on the morning of September 15, 1974 she was awakened by a noise, that she got up and got her gun and turned on a light in the den, that at that moment the appellant, whom she knew, rushed across the den and grabbed her and pushed her against the door. He had his body pushing her against the wall, and he had his arm around her neck holding her against the wall. The appellant at that time told her he had a knife on her throat. He dragged the prose-cutrix back toward the den, and forced her to lay the gun down. He then turned out the lights while holding her. That she could feel the knife against her throat. After he turned out all the lights, he dragged prosecutrix down the hallway to her bedroom. While he carried her back to the bedroom, he was holding the knife on her throat. He made her undress herself, and raped her. His private parts entered her private parts. She was in her menstrual cycle. The appellant dragged her to the bathroom and back to her bedroom, and raped her four or five times. The appellant threw her on the bed, he was rough with her, he grabbed her around the throat and neck, he held her down. She resisted him, and he choked her by putting his hands around her throat. Prosecutrix further testified that appellant stayed with her in her bedroom for about three hours, and left about the time prosecutrix heard the noise of her brother loading some equipment on his truck in back of the house. Prosecutrix testified she called her brother, and immediately complained to him that she had been raped, and shortly after complaining to her brother made complaint to others that she had been raped.

Prosecutrix further testified that she was examined by her doctor on the afternoon of September 15, 1974, that she told him she had been raped, and wanted an examination, that her doctor found no semen on her body, or clothing, and no bruises on her neck, shoulders, arms, and legs, and that there were none on her body anywhere, except one about the size of a quarter on her breast, and that it was caused by appellant biting her. She further testified she had no injuries visible anywhere on her, except the bruise on the breast.

Prosecutrix further testified that the appellant left his knife in her bed, that the screen door was cut, that she heard it being cut just before appellant appeared in her den.

Appellant did not testify in his own behalf.

We hold that there is sufficient evidence in this case to sustain the jury verdict finding the appellant guilty of assault with intent to ravish. Therefore, the court did not err in charging the jury with regard to the crime of assault with intent to ravish. Kelsoe v. State, supra; Williams v. State, supra.

There are no other rulings of the trial court complained of in appellant’s brief. We have examined carefully the entire record, and find from such examination that there is no error in the record prejudicial to the appellant.

The foregoing opinion was prepared by the Honorable Joseph J. Mullins, a retired Circuit Judge, serving as a Judge of this Court under the provisions of Section 6.10 of the new Judicial Article (Constitutional Amendment No. 328, Act # 1051, 1973); his opinion is hereby adopted as that of the Court.

The judgment below is hereby affirmed.

AFFIRMED.

All Judges concur.


author: PER CURIAM. BEATTY, Justice

text:
    In re Jerry BURKES v. STATE of Alabama. Ex parte Jerry Burkes.
    SC 2631.
    Supreme Court of Alabama.
    Nov. 4, 1977.
   PER CURIAM.

Writ quashed as improvidently granted.

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

BEATTY, J., dissents.

BEATTY, Justice

(dissenting).

I would reverse the conviction because I do not believe there was a conflict in the evidence which justified the jury' in finding the petitioner guilty of the lesser included offense rather than the completed offense of rape. The Court of Criminal Appeals, 350 So.2d 1067, was wrong when it stated that “The question presented ... is there sufficient evidence in the record . to sustain the verdict of assault with intent to ravish?” Rather, the question was whether there was a conflict in the evidence of rape which would allow the jury to be charged on and render a verdict for the lesser offense of assault with intent to ravish. Tit. 15, § 323, Ala.Code; Edwards v. State, 33 Ala.App. 386, 34 So.2d 173 (1948).

If a man carnally knows a woman by force and against her will, that is the consummated crime of rape. Taylor v. State, 249 Ala. 130, 30 So.2d 256 (1947). The only force required is that degree of duress necessary to effect the penetration without her consent, Cole v. State, 19 Ala.App. 360, 97 So. 891 (1923), and the slightest penetration is sufficient carnal knowledge. Thomas v. State, 53 Ala.App. 232, 298 So.2d 652 (1974). The fact that a physician cannot detect laceration of the female’s vagina, vulva or pubic area does not negative the claim of penetration, although it may tend to prove consent. Smith v. State, 57 Ala.App. 164, 326 So.2d 692 (1975). And since the slightest penetration is sufficient, an ejaculation of semen is not required to support a rape conviction; indeed recent studies, of which we may take judicial knowledge, report the absence of sperm in nearly half of the number of rape victims examined, including some raped by more than one man. The same investigation found that a large number of convicted rapists suffer from “sexual dysfunction” which often interfered with ejaculation. Newsweek Magazine, Oct. 17, 1977, p. 119. With deference to some of my judicial colleagues who disparage my interest in empirical data, these findings support the wisdom of the common law which never did and does not now require the presence of male semen, or even outward signs of force, constructive force and penetration being sufficient. Herndon v. State, 2 Ala.App. 118, 56 So. 85 (1911).

In support of the affirmance of the petitioner’s conviction of the lesser offense, the State has cited two cases, Williams v. State, 51 Ala.App. 1, 282 So.2d 349 (1973), and Kelsoe v. State, 50 Ala.App. 378, 279 So.2d 549 (1973). However, neither of these cases is apropos here. In Williams the accused testified to make a clear conflict in the evidence. That conflict allowed the jury to find guilt of a lesser included offense. In the instant case the accused did not testify. In Kelsoe the examining physician testified that it was not conclusive that the victim had had intercourse, and that the hymen was still intact, a fact inconsistent with intercourse, he stated, because ordinarily it is ruptured on the first occasion of intercourse. Therefore, a conflict existed in Kelsoe also. Both cases cited by the State contained evidence that was inconsistent with the completed offense of rape as the authorities cited above have defined it.

Now what was the evidence in this case? Quoting from the factual findings of the Court of Criminal Appeals, 350 So.2d 1067, which are verified by the record, the prose-cutrix testified that the petitioner:

[Gjrabbed her and pushed her against the door. He had his body pushing her against the wall, and he had his arm around her neck holding her against the wall. The appellant at that time told her he had a knife on her throat. He dragged the prosecutrix back toward the den, and forced her to lay the gun down. He then turned out the lights while holding her. That she could feel the knife against her throat. After he turned out all the lights, he dragged prosecutrix down the hallway to her bedroom. While he carried her back to the bedroom, he was holding the knife on her throat. He made her undress herself, and raped her. His private parts entered her private parts. She was in her menstrual cycle. The appellant dragged her to the bathroom and back to her bedroom, and raped her four or five times. The appellant threw her on the bed, he was rough with her, he grabbed her around the throat and neck, he held her down. She resisted him, and he choked her by putting his hands around her throat. Prosecutrix further testified that appellant stayed with her in her bedroom about three hours, and left about the time prosecutrix heard the noise of her brother loading some equipment on his truck in back of the house. Prosecutrix testified she called her brother, and immediately complained to him that she had been raped, and shortly after complaining to her brother made complaint to others that she had been raped.
Prosecutrix further testified that she was examined by her doctor on the afternoon of September 15, 1974, that she told him she had been raped, and wanted an examination, that her doctor found no semen on her body, or clothing, and no bruises on her neck, shoulders, arms, and legs, and that there were none on her body anywhere, except one about the size of a quarter on her breast, and that it was caused by appellant biting her. She further testified she had no injuries visible anywhere on her, except the bruise on the breast.
Prosecutrix further testified that the appellant left his knife in her bed, that the screen door was cut, that she heard it being cut just before appellant appeared in her den.

This testimony is not only consistent with rape by force, fear or intimidation, but with the completed offense of rape. Where is the evidence of an incompleted rape? Because she testified that he raped her four or five times in the space of about three hours, does that evidence create an inference of assault but not rape? Is there any reasonable inference of consent contained in that express testimony which would exclude rape, even though she resisted him, and characterized the sexual conduct as rape? To conclude from her express statements either that the penetration was not effected or that it was effected with her consent after assault is pure conjecture.

And then there is her evidence of her physical examination on the afternoon of the attack, when she said that her physician found no semen, and no bruises except one on her breast where, she testified, the petitioner bit her. I submit that it is perfectly consistent with her description of the event that she had no outward signs of injury. Yes, he was rough with her, he dragged her down the hallway, he carried her to the bathroom, he choked her, and he held a knife to her throat. His private parts entered her private parts. Whether she should have exhibited the appearance of a heavyweight boxer after a championship bout is not the point, and the absence of such an appearance does not create a conflict in her evidence of the consummated crime of rape, since it is undisputed that he penetrated her with force. Indeed, since rape may be committed by intimidation, which was also shown, the jury could not have inferred that the completed crime was not committed. Even if there were no other indicia of actual force, the bruise on her breast was not disputed, and thus raised no conflict in that aspect of the evidence.

I am, of course, aware of the rule allowing the jury the right to believe one part of a witness’ testimony and reject another. Southern Ry. Co. v. Gantt, 210 Ala. 383, 98 So. 192 (1923). But it is equally true that “a mere possibility that a result might have been wrought in a certain way or by certain means cannot serve to contradict or to reflect upon the credibility of positive testimony of facts (not opinions) that is otherwise not impeached or rendered of doubtful verity.” Louisville & N. R. Co. v. Moran, 200 Ala. 241, 76 So. 7 (1917). Undisputed evidence from a competent witness cannot be disregarded by the jury, Farmers & Ginners Cotton Oil Co. v. Reliance Ins. Co., 341 So.2d 147 (Ala.1976), and inferences contrary to direct, uncontradicted testimony of facts consistent with other proven facts cannot be indulged. Woodward Iron Co. v. Goolsby, 242 Ala. 329, 6 So.2d 11 (1942).

For these reasons I would reverse and remand the case to the Court of Criminal Appeals for an order granting the petitioner a new trial.


author: PER CURIAM. ENGLAND, Justice,

text:
    Florida Board of Bar Examiners In re Questions of Law Certified to the Supreme Court of Florida BY the FLORIDA BOARD OF BAR EXAMINERS—Felony Convictions.
    No. 52031.
    Supreme Court of Florida.
    Sept. 29, 1977.
    Parks M. Carmichael, Gainesville, Chairman, and C. Graham Carothers, Tallahassee, for the Florida Bd. of Bar Examiners.
   PER CURIAM.

The Florida Board of Bar Examiners (the Board) has petitioned this Court for guidance in determining whether persons convicted of felonies in states other than Florida are eligible for admission to The Florida Bar. It its petition, the Board points out that this Court has previously answered certified questions concerning the eligibility of persons convicted of felonies under the laws of the State of Florida and of felonies under the federal laws for admission to The Florida Bar. However, the Board presently has under consideration applications for admission to The Florida Bar submitted by persons who acknowledge having been convicted of offenses in states outside the State of Florida which are characterized as felonies by the state in which the offenses were committed. We have not heretofore considered this issue. The Board frames its interrogatories as follows:

1. IS AN APPLICANT WHO IS DULY CONVICTED UNDER THE LAWS OF A SISTER STATE OF AN OFFENSE WHICH CONSTITUTES A FELONY UNDER THE LAWS OF SUCH STATE INELIGIBLE FOR ADMISSION INTO THE FLORIDA BAR?
2. IF SO, IS SUCH AN APPLICANT CONVICTED OF A FELONY IN ANOTHER STATE REQUIRED TO HAVE HIS CIVIL RIGHTS RESTORED IN SUCH OTHER STATE, OR IN FLORIDA, TO BE ELIGIBLE FOR ADMISSION INTO THE FLORIDA BAR?
3. IS THE BOARD REQUIRED TO MAKE A DETERMINATION WHETHER THE OFFENSE COMMITTED IN A SISTER STATE WOULD CONSTITUTE A FELONY IF THE OFFENSE WAS COMMITTED WITHIN FLORIDA, OR MAY THE BOARD RELY UPON THE SISTER STATE’S CLASSIFICATION OF THE OFFENSE AS A MISDEMEANOR OR FELONY?
4. IF THE BOARD IS REQUIRED TO DETERMINE WHETHER THE OFFENSE WOULD CONSTITUTE A FELONY IF COMMITTED IN FLORIDA, BY WHAT TEST IS SUCH DETERMINATION TO BE MADE?

We have jurisdiction to entertain this petition pursuant to Article V, Section 15, Florida Constitution.

By our answers to certified questions in In re: Florida Board of Bar Examiners, 183 So.2d 688 (Fla.1966), we made clear that only conviction of a crime in Florida for which one is deprived of his civil rights shall serve to make that individual ineligible for admission to The Florida Bar. Specifically, it was held that a conviction for petty larceny would not deprive an individual of his or her right to be admitted to The Florida Bar if otherwise qualified. It was pointed out, however, that the Board was not precluded from taking such conviction into consideration in the overall measure of character and fitness of the applicant and weighing it in connection with other evidence of character.

Currently, Article VI, Section 4, Florida Constitution, provides:

No person convicted of a felony, or adjudicated in this or any other state to be mentally incompetent, shall be qualified to vote or hold office until restoration of civil rights or removal of disability.

The legislature has amplified on the disabilities which stem from conviction of a felony. Section 112.011 (employment); Section 790.23(1) (firearms); Section 40.07(1) (jury); Section 775.13 (registration of convicted felons); Section 97.041(3)(d) (voting); and Section 561.15 (beverage license), Florida Statutes (1975).

It is apparent that the Court’s rationale for considering an individual ineligible for admission to The Florida Bar upon conviction of a felony is predicated upon the deprivation of civil rights which flows from such conviction. If one is ineligible to vote or hold public office in Florida, then he should not be eligible for admission to The Florida Bar and thereby become an officer of the courts of this State.

In view of the foregoing, we suggest that the answer to the first question propounded depends not upon the label which a sister state places upon a crime, but whether or not the individual is deprived of his or her civil rights upon conviction. If so, then regardless of the nomenclature attached to the conviction, the individual should be treated as one who has been convicted of a felony in Florida. This analysis avoids altogether the necessity to make the determinations suggested in the third and fourth questions propounded by the Board.

Of course, such disability attaches only so long as the individual is deprived of his civil rights. In re: Florida Board of Bar Examiners, supra. Upon restoration of his civil rights through the appropriate procedure, the individual thereby becomes eligible for admission to The Florida Bar. In re: Florida Board of Bar Examiners, 341 So.2d 503 (Fla.1976). The issue raised by the second question propounded by the Board concerns the appropriate procedure of restoration where the conviction occurs in a sister state. Since we have concluded that it is the deprivation of civil rights by the sister state which is determinative of ineligibility, it logically follows that the restoration of civil rights by a sister state by whatever procedure obtains in that state should likewise remove the ineligibility which results from the original deprivation. In addition, there exists in this State Rules of Executive Clemency adopted on September 10, 1975, by mutual consent of the Governor and Cabinet. By subsection 4E. of those Rules the Governor with the approval of three members of the Cabinet may grant a restoration of “all or some civil rights in this State for persons convicted under the laws of another state or government.” Consequently, subject to the caveat as to constitutionality mentioned in In re: Florida Board of Bar Examiners, 341 So.2d 503 (Fla.1976), eligibility for admission to The Florida Bar may follow upon a restoration of civil rights by the state which originally suspended those rights or upon restoration in Florida, to the extent now required to make a convicted Florida felon eligible for admission.

Responding, then, to the four questions propounded by the Florida Board of Bar Examiners:

1. AN APPLICANT WHO IS DULY CONVICTED OF A CRIME UNDER THE LAWS OF A SISTER STATE WHICH RESULTS IN THE DEPRIVATION OF HIS OR HER CIVIL RIGHTS, REGARDLESS OF THE NOMENCLATURE ATTACHED TO SUCH CRIME BY THAT SISTER STATE, SHALL BE INELIGIBLE FOR ADMISSION INTO THE FLORIDA BAR.
2. AN APPLICANT CONVICTED OF A CRIME IN ANOTHER STATE WHICH RESULTS IN DEPRIVATION OF HIS OR HER CIVIL RIGHTS SHALL BECOME ELIGIBLE FOR ADMISSION INTO THE FLORIDA BAR UPON RESTORATION OF THOSE CIVIL RIGHTS EITHER BY THE STATE IN WHICH THE CONVICTION OCCURRED OR BY THE STATE OF FLORIDA, PROVIDED THAT SUCH RESTORATION IS AS FULL AND COMPLETE AS IS REQUIRED TO MAKE A FLORIDA FELON ELIGIBLE FOR ADMISSION.

By virtue of our response to the foregoing questions, the remaining questions propounded by the Board are rendered moot.

Nothing herein is to be construed as proscribing the Florida Board of Bar Examiners from considering the conviction of any crime by an applicant in the overall measurement of character and fitness and weighing it in connection with other evidence of character.

It is so ordered.

OVERTON, C. J., and ADKINS, BOYD, SUNDBERG, HATCHETT and KARL, JJ., concur.

ENGLAND, J., dissents with an opinion.

ENGLAND, Justice,

dissenting.

I dissent for the reasons expressed in In Re Florida Board of Bar Examiners, 341 So.2d 503 (Fla.1976).


author: LETTS, Judge. DAUKSCH, Judge, DOWNEY, Judge.

text:
    Frank Anthony PACE, Petitioner, v. STATE of Florida, Respondent.
    No. 76-2010.
    District Court of Appeal of Florida, Fourth District.
    June 24, 1977.
    Rehearing Denied Oct. 11, 1977.
    Richard L. Jorandby, Public Defender, Frank B. Kessler, Chief, Appellate Division, and Tatjana Ostapoff, Legal Intern, West Palm Beach, for petitioner.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Anthony J. Golden, Asst. Atty. Gen., West Palm Beach, for respondent.
   LETTS, Judge.

The petition for a common law writ of certiorari is herewith denied upon the authority of the recent decision by the Florida Supreme Court in State v. Heath, 343 So.2d 13 (Fla.1977).

We recognize that the Heath case overrules certain dictum in Pace v. State, 335 So.2d 11 (Fla. 4th DCA 1976). Accordingly, we recede from any position in Pace v. State, supra, that is inconsistent with State v. Heath, supra.

Denied.

DOWNEY, J., concurs.

DAUKSCH, J., dissents, with opinion.

DAUKSCH, Judge,

dissenting:

I must respectfully dissent and say that I would issue the writ and reverse.

The question here is whether or not the condition of probation which required the Petitioner to “submit your person, residence or automobile to search by Probation Supervisor or law enforcement officer upon demand without search warrant” is a valid and enforceable condition to place upon probationer in view of the Fourth Amendment rights all persons are supposed to have. In State v. Heath, 343 So.2d 13 (Fla.1977) our Supreme Court had a similar question before it as is noted in the majority opinion here.

I think the requirement that the probationer “submit (his) person, residence, or automobile to a search . . . (by any) law enforcement officer upon demand without search warrant” is clearly violative of probationer’s constitutional rights against unreasonable searches and seizures and any holding in State v. Heath, supra, is not relevant here. (Emphasis supplied.) In Heath our Supreme Court recognized the necessity of full cooperation between the probation supervisor and the probationer. I agree this is necessary and desirable both for the proper administration and control of one under supervision of the court and for the benefit of the probationer to the end of rehabilitation. However to require a person who is on probation to submit upon demand his person, residence or automobile to a search by any law enforcement officer goes beyond the bounds of constitutional propriety. In State v. Heath, supra, our Supreme Court mentioned Croteau v. State, 334 So.2d 577 (Fla.1976) in regard to the Fourth Amendment but, again, this applies only to probation supervisors and not to any law enforcement officer.

ON PETITION FOR REHEARING

DOWNEY, Judge.

Pace initially appealed to this court from an order of the trial court which placed him on probation subject to the condition, among others, that he “submit [his] person, residence or automobile to search by Probation Supervisor or law enforcement officer upon demand without search warrant.”

This court dismissed the appeal for lack of jurisdiction because the notice of appeal predated any written order. Pace v. State, 335 So.2d 11 (Fla. 4th DCA 1976). In dismissing the appeal the court gratuitously said “. . .we observe that the order of probation contains a condition which on its face is null and void.” The footnote reference quotes the foregoing condition.

In due course a written order was entered by the trial judge containing the same probation condition referred to. Pace then filed his petition for writ of certiorari, once again attacking the subject condition. In the meantime the Supreme Court of Florida decided State v. Heath, 343 So.2d 13 (Fla.1977). On authority of Heath, this court, with Judge Dauksch dissenting, on June 24, 1977, denied the petition for writ of certiorari and receded from the gratuitous comment in the prior Pace opinion contained at 335 So.2d 11. Judge Dauksch’s dissent expressed the opinion that requiring a probationer to submit to a search of his person, residence, and automobile by a law enforcement officer (as opposed to a probation supervisor) constituted an unlawful incursion into the probationer’s Fourth Amendment rights against unreasonable searches and seizures.

We are now confronted with a petition for rehearing which challenges the majority ruling upholding the condition of probation requiring a probationer to submit to a search by law enforcement officers as well as a probation supervisor.

In Croteau v. State, 334 So.2d 577 (Fla.1976), and State v. Heath, 343 So.2d 13 (Fla.1977), the Supreme Court of Florida held that probation does not divest one entirely of his Fourth and Fifth Amendment constitutional rights. However probation certainly diminishes those constitutional rights since evidence obtained in violation of a probationer’s Fourth or Fifth Amendment rights is admissible in a probation revocation proceeding (although such evidence is not admissible against the probationer in a new, separate criminal proceeding). But if evidence obtained by a law enforcement officer as a result of an unreasonable search and seizure is admissible in a proceeding to revoke one’s probation, why would it not be proper to include law enforcement officers in a condition of probation requiring a probationer to submit to a search of his person and property? It would seem to redound to the probationer’s benefit to put him on notice by a written condition that such a search might be made. See People v. Mason, infra.

Several cases have upheld as proper, probationary conditions requiring a probationer to submit to a search by law enforcement officers. In People v. Mason, 5 Cal.3d 759, 97 Cal.Rptr. 302, 488 P.2d 630 (1971), the Supreme Court of California approved a probationary condition which required the probationer “[to submit] to [a] search and seizure at any time of the day or night, without a search warrant whenever requested to do so by the Probation Officer or any law enforcement officer.” 97 Cal.Rptr. at 303, 488 P.2d at 631. In that case the probationer attacked the search and seizure because he alleged the police did not request permission to make the search in question. In rejecting this contention (though acknowledging that the probationer must be given some notice of the intent to make the search) the court pointed out:

“We also note that to accept defendant’s interpretation of the probation condition would defeat the acknowledged purposes of such a provision to deter further offenses by the probationer and to ascertain whether he is complying with the terms of his probation. ‘With knowledge he may be subject to a search by law enforcement officers at any time, he will be less inclined to have narcotics or dangerous drugs in his possession. The purpose of an unexpected, unprovoked search of defendant is to ascertain whether he is complying with his terms of probation; to determine not only whether he disobeys the law, but also whether he obeys the law. Information obtained under such circumstances would afford a valuable measure of the effectiveness of the supervision given the defendant and his amenability to rehabilitation.’ (People v. Kern, 264 Cal.App.2d 962, 965, 71 Cal.Rptr. 105, 107.)”
97 Cal.Rptr. at 304, 488 P.2d at 632.

The California court went much farther than did the Supreme Court of Florida in Croteau, supra, holding that the evidence obtained was admissible in a new prosecution against the probationer for the contraband uncovered by the subject search.

In State v. Schlosser, 202 N.E.2d 136 (N.D.1972), the Supreme Court of North Dakota approved a probationary condition almost identical to the one contained in the case sub judice. See also People v. Superior Court of San Mateo County, 12 Cal.3d 858, 117 Cal.Rptr. 433, 528 P.2d 41 (1974), and State v. Mitchell, 22 N.C.App. 663, 207 S.E.2d 263 (1974). But see United States v. Consuelo-Gonzalez, 521 F.2d 259 (9th Cir. 1975); Tamez v. State, 534 S.W.2d 686 (Tex.Cr.App.1976).

An interesting argument in favor of including law enforcement officers in the probationary condition under consideration is contained in the dissenting opinion authored by Judge Wright in the Consuelo-Gonzalez case, supra. Judge Wright points out that in the real world today the case load of most probation officers is so heavy that frequent visits to the probationer and his place of residence are just not in the cards. 521 F.2d at 271. Thus, periodic searches or the possibility thereof by law enforcement officers can serve the beneficial functions of supplementing the probation supervisors’ activities as well as creating a stronger incentive on the part of probationers to rehabilitate themselves.

For the foregoing reasons we approve the condition of probation involved in this case and adhere to our opinion denying the petition for writ of certiorari.

REHEARING DENIED.

LETTS, J., concurs.

DAUKSCH, J., dissents, with opinion.

DAUKSCH, Judge, dissenting:

I cannot recede from my dissent. While I agree it is beneficial for the state to prevent its citizens, especially those on probation, from committing crimes, I do not feel it is desirable to permit unwarranted and unreasonable searches of probationers by any law enforcement officer at any time. If this becomes the standard in Florida then those persons who have been deemed worthy of probation and the freedom associated therewith need not fear, but expect, unwarranted intrusions upon the sanctity of their homes in the middle of the night by any municipal police officer, deputy sheriff, highway patrolman, conservation officer, agents of the department of criminal law enforcement, employees of state prisons or correctional systems and state attorneys, U.S. attorneys and their assistants and investigators. Maybe even members of the Armed Forces of the United States, the organized reserves, state militia, or Florida National Guard, when on duty or going to or from duty, or “under orders.” See Section 790.001(8), Florida Statutes (1975). Of course I have omitted naming all of the persons considered federal law enforcement officers; FBI, IRS, and the various other “revenuers.” It is not unlikely that a local law enforcement officer might take a dislike for a local probationer and take advantage of his right to walk into the probationers’ house in the wee hours of the morning while mother and children rest. A very insidious result of a seemingly, to the majority here, innocuous and “beneficial” rule.

It seems to me the majority has ignored the spirit of the ruling in State v. Heath, 343 So.2d 13 (Fla.1977), unless I have misconstrued the spirit myself. In Heath, supra, and in United States v. Consuelo-Gonzalez, 521 F.2d 259 (9th Cir. 1975), the tenor of the opinions sounds to me like those courts are looking to proper probationary rules rather than restrictive imprisonment provisions. See also Tamez v. State, 534 S.W.2d 686 (Tex.Cr.App.1976); People v. Peterson, 62 Mich.App. 258, 233 N.W.2d 250 (1975).

While our Supreme Court has not directly spoken (but soon will, I trust), it did say in Croteau v. State, 334 So.2d 577 (Fla.1976),

“One does not absolutely forfeit the protection of the Fourth Amendment’s prohibition of unreasonable searches and seizures merely by assuming the status of a probationer.”

If Croteau, supra, is good law, and I think it is, then the majority here is not following that law. Even the dissent of the Chief Justice in Croteau, makes no mention of the rule quoted regarding a probationer not giving up his Fourth Amendment rights.

In People v. Mason, 5 Cal.3d 759, 97 Cal.Rptr. 302, 488 P.2d 630 (1971), cited by the majority, a well reasoned dissent is found which I believe should be the persuasive to a better rule of law for Florida.

If unwarranted, unreasonable searches and seizures by any law enforcement officer is the best standard to adopt for probationers then why not extend it to suspects in heinous crimes like mass murders, violent rapes and child molestings, and sales of heroin? Better yet, extend it to suspects.

I say that it may serve a useful purpose to demand a probationer accept the probing of his probation officer but it is repulsive to our constitutions to permit what the majority here sets out. I would grant rehearing and quash that portion of the Order of probation permitting any law enforcement officer the right to search as I said in my dissent.


author: DAUKSCH, Judge.

text:
    Julius THIGPEN, Appellant, v. STATE of Florida, Appellee.
    No. 75-1955.
    District Court of Appeal of Florida, Fourth District.
    Aug. 2, 1977.
    Rehearing Denied Nov. 9, 1977.

      Richard L. Jorandby, Public Defender and Craig S. Barnard, Asst. Public Defender, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Marsha G. Madorsky, Asst. Atty. Gen., West Palm Beach, for appellee.
   DAUKSCH, Judge.

Defendant, Julius Thigpen, appeals his conviction for second degree murder, urging five errors as grounds for reversal. As we find merit in his first point on appeal, we do not reach the remaining issues. This first point concerns the lower court’s denial of the Defendant’s Motion for Discharge for failure to bring him to trial within the time prescribed by Rule 3.191(a)(1), Fla.R. Crim.P.

The alleged murder occurred on May 31, 1974 in Orlando. The Defendant was first arrested on June 14, 1974 by Orlando police on a charge of first degree murder. On June 21,1974 the Grand Jury returned a No True Bill and the Defendant was released. On August 6, 1974 he was indicted on a charge of second degree murder. He was arrested in Miami on February 6, 1975 and filed his Motion for Discharge on April 7, 1975. It is clear that the Defendant’s 180-day speedy trial time period began to run on June 14, 1974 when he was first taken into custody. See State Ex Rel. Green v. Patterson, 279 So.2d 362 (Fla. 2d DCA 1973).

When an accused files a Motion to Discharge and the State objects, Rule 3.191(e), Fla.R.Crim.P., places upon the State the initial burden of presenting some evidence of non-availability of the defendant for trial. Once the State presents “any evidence tending to show non-availability”, the burden shifts to the accused to come forward with competent proof of continuous availability. Rule 3.191(e), Fla.R. Crim.P.; Richardson v. State, 340 So.2d 1198 (Fla. 4th DCA 1976). Therefore, the first question we must consider in the instant case is whether the State presented any evidence tending to show non-availability of the Defendant during the 180-day term.

At the hearing on Defendant’s Motion for Discharge, a sergeant from the Orange County Sheriff’s office testified that a capi-as was issued for the Defendant’s arrest pursuant to the indictment for second degree murder returned by the Grand Jury on August 6,1974. Based on information from the Sheriff’s Department Booking Report that the Defendant gave an Alabama address when he was first arrested on June 14,1974, the capias was sent to the Sheriff’s office in Alabama. No response was ever received from Alabama authorities. The sergeant stated that no other effort to locate the Defendant was made.

The Defendant testified that he gave the Alabama address to the Sheriff’s Department because his parents lived there and he stayed with them on trips home from Tampa. There was additional evidence that the Orlando Police Department was aware that the Defendant had been working in Tampa at the time of his first arrest and that he had provided the police with his Tampa address. The Orange County Sheriff’s office did not contact the Orlando Police Department to see if they had an address for the accused.

While Rule 3.191(e), Fla.R.Crim.P., does not require the State to make exhaustive efforts to locate an accused in order to establish some evidence of non-availability, the Rule does require of the State something more than just sending a warrant to out-of-state authorities without a follow-up. See State Ex Rel. Green v. Patterson, supra; State v. Wise, 336 So.2d 3 (Fla. 4th DCA 1976), footnote 2, page 8. In the instant case the State presented no evidence that the Defendant could not be located through his parents’ address in Alabama.

Since the State did not present any evidence “tending to show” non-availability, the burden of establishing availability did not shift to the Defendant and he should have been discharged.

REVERSED with directions to discharge the Defendant.

MAGER, C. J., and CROSS, J., concur.


text:
    JOHNSON & PANICO, P. A., a/k/a Johnson, Panico, Hunkapiller, Baum & Simmermon, P. A., and James P. Panico, Individually, Appellants, v. Billy Joe COUCH, Appellee.
    No. 76-2545.
    District Court of Appeal of Florida, Fourth District.
    Sept. 13, 1977.
    Rehearing Denied Nov. 9, 1977.
    William A. Kledzik of James P. Pánico & Associates, P. A., Maitland, for appellants.
    Jerry S. Luxenberg, Orlando, for appel-lee.
   DAUKSCH, Judge.

Appellants seek to have the Judgment of the trial court reversed after a non-jury trial. No transcript of the testimony was provided for our review. We have no alternative but to affirm. Pierson v. Sharp, 283 So.2d 880 (Fla. 4th DCA 1973). Rosenstein v. Raticoff, 265 So.2d 387 (Fla. 4th DCA 1972).

The Judgment finds that “Count 8 [is] a contingency fee contract [and] said contingency has not occurred . . . ” In the judgment the court properly denies the Appellant any relief under Count 8 and includes the words “shall go hence without day.” These words should not be included since the Appellant would not be barred from bringing action should Appellee fail to pay a lawful indebtedness if the contingency does occur. The Judgment is hereby modified to delete the words “and shall go hence without day.”

AFFIRMED as modified.

ALDERMAN, C. J., and ANSTEAD, J., concur.


author: HUBBART, Judge.

text:
    ALLSTATE INSURANCE CO., Appellant, v. Robert S. KORSCHUN, Appellee.
    No. 76-1068.
    District Court of Appeal of Florida, Third District.
    Sept. 13, 1977.
    Rehearing Denied Nov. 8, 1977.
    Weinstein & Bavly and Arthur J. Mor-burger, Miami, for appellant.
    Pozen & Gold, Miami, for appellee.
    Before PEARSON, HAVERFIELD and HUBBART, JJ.
   HUBBART, Judge.

The plaintiff Allstate Insurance Company appeals from a final judgment in favor of its insured, the defendant Robert S. Kor-schun, in a suit for declaratory and injunc-tive relief, which judgment permits the defendant Korschun to proceed to arbitration on his uninsured motorist claim against Allstate. Allstate contends that the defendant Korschun is not entitled to arbitrate this claim for lack of coverage because Kor-schun did not report to the police the hit and run automobile accident giving rise to the claim within 24 hours after the accident in violation of an insurance policy provision requiring such notice.

The law is clear that a 24 hour notice requirement to the police or appropriate government authority is a valid provision and generally a condition precedent to obtaining uninsured motorist coverage in a hit and run automobile accident. The reason for such a requirement is to allow the police and other interested parties (such as the insurance company) an opportunity to investigate, search and possibly apprehend the hit and run driver, thus facilitating inquiry whether the hit and run vehicle was in fact uninsured and allowing the insurer to enforce its subrogation rights against a negligent uninsured hit and run motorist. McKay v. Highlands Insurance Co., 287 So.2d 393, 395 (Fla. 3d DCA 1973). While prejudice to the insurer is presumed in the case of non-compliance with such a notice requirement, the insurer will not automatically be relieved of liability simply by showing that notice was not given within the time provided for in the policy if the insured can demonstrate that the insurer has not thereby been prejudiced. Laster v. United States Fidelity and Guaranty Co., 293 So.2d 83, 86 (Fla. 3d DCA 1974). See Tiedtke v. Fidelity and Casualty Co. of New York, 222 So.2d 206 (Fla.1969).

We reverse and remand for a new trial. The defendant Korschun did not report to the police the hit and run accident giving rise to his uninsured motorist claim within 24 hours of the accident and failed to establish in the trial court that the insurer Allstate was not prejudiced by the failure to so notify. A troop of boy scouts was camped near the scene of the accident and the defendant Korschun failed to show that none of these young men saw or could identify the phantom vehicle which allegedly caused the accident. A prompt reporting of the accident to the police may have led to such a witness among the boy scout troop. The defendant Korschun, however, was cut off at trial during the presentation of his case with a ruling in his favor and may very well have had other evidence establishing that no one in the boy scout troop had any knowledge concerning the accident, which evidence he was not permitted to present. Consequently, we reverse the judgment entered and remand the cause for a new trial.

Reversed and remanded for a new trial.