author: JONES, Justice.

text:
    SEABOARD COAST LINE RAILROAD COMPANY et al. v. W. L. GILLIS, Jr.
    SC 877.
    Supreme Court of Alabama.
    Aug. 28, 1975.
    Rehearing Denied Nov. 6, 1975.

      Henry E. Simpson, Birmingham, for appellants.

      Rives, Peterson, Pettus, Conway & Burge, Birmingham, for appellee.
   JONES, Justice.

This is an appeal by Seaboard Coast Line Railroad Company, Louisville & Nashville Railroad Company, and Clinchfield Railroad Company from an adverse judgment based on a suit by William L. Gillis, under 45 U.S.C.A., §§ 11 (Hand Brake Act) and 51 (Federal Employers’ Liability Act).

Clinchfield is a partnership whose sole partners are L&N and Seaboard. Service was obtained on L&N and Seaboard and they each filed a general appearance. Clinchfield was served by leaving a copy of the complaint with Charles B. Clegg, office manager of L&N in Birmingham, and H. H. Hollingsworth, local freight agent for L&N and Seaboard. Clinchfield’s motion to quash service, contesting the service through agents of L&N and Seaboard, was denied.

When injured, Gillis was employed by Clinchfield in Virginia. His job, as a signal communicator and electrician, required him to use a company motorcar to reach places that were otherwise inaccessible except by rail. At the time of the accident, Gillis had been using the same motorcar for approximately three years. Clinchfield maintained no regular maintenance on these motorcars, but provided service upon request. The car could be stopped in either of two ways, either by pushing a brake lever forward, or by a process of stopping the engine, reversing it and starting it again, thereby causing the wheels to reverse their forward motion.

Gillis testified that he was not a mechanic, but that the brake lever was working the morning of the accident. Twice immediately prior to collision the brake lever stopped or slowed the car. The third time Gillis attempted to stop the lever jammed, resulting in brake failure. Gillis attempted to reverse the engine, but collided with the caboose of a standing train before the car could stop. Gillis suffered a fractured skull and foot injuries as well as a ninety per cent permanent disability to his wrist. The jury awarded damages of $150,000.

Three issues are before this Court for consideration. First, with respect to service of process, what is the legal effect of the internal organization of the Clinchfield partnership? Second, is an employer liable under FELA where the sole act of negligence by the employer proximately causing plaintiff’s injuries is the failure to conduct a preventive maintenance schedule? Third, does the proof of such alleged negligence present a jury question under either FELA or the Hand Brake Act as to all three appellants ? We answer these questions adversely to the appellants; and, therefore, the judgment below is affirmed.

Appellants argue that Clinchfield is a separate “jural entity” from its only two partners, Seaboard and L&N. Our rejection of this argument is dispositive of two primary issues. First, whether service on Seaboard and L&N through their Alabama agents authorized to receive service was sufficient to obtain jurisdiction over Clinchfield. Second, whether there is a sufficient employer-employee relationship between Seaboard and L&N and Gillis to hold Seaboard and L&N liable for Clinch-field’s violation of the Hand Brake Act and FELA.

As to the sufficiency of service issue, appellants primarily object to plaintiff’s serving of process on the agents of the partners (L&N and Seaboard) rather than on the agents of the partnership (Clinchfield). It is important to note that service upon a corporation is only possible through service upon its officers or authorized agents. Tit. 7, § 188, Code. Since Clinchfield’s only two partners, L&N and Seaboard, were both corporations qualified to do business in Alabama, service on their authorized agents was sufficient to obtain in personam jurisdiction over the corporations. Thus, both partners were personally served and personal service on the partners is service on the partnership. Tit. 7, § 141, Code.

On the liability of L&N and Seaboard for the violation by Clinchfield, appellants rely on Kelley v. Southern Pacific Company, 419 U.S. 318, 95 S.Ct. 472, 42 L.Ed.2d 498 (1974), for authority that merely a close relationship between the employer of the injured employee and the railroad does not make the railroad liable under the applicable federal statute. The Kelley case dealt with an employee of a trucking company which was a wholly owned subsidiary of Southern Pacific. Such a fact situation does not control a case where two railroad corporations form a partnership to operate a railroad line. In the instant case, there is not merely a close relationship between L&N and Seaboard on the one hand and Clinchfield on the other, there is an identity. For the purpose of joint and several liability, L&N and Seaboard are Clinchfield.

The next issue is appellants’ liability under 45 U.S.C.A., § 51. To establish liability under FELA, Gillis must show negligence on the part of his employer. A proper analysis of FELA liability must begin with an examination of the overall relationship between the railroad and Gillis and the resulting duty of the railroad to Gillis. The type of work and the restricted amount of discretion allotted to Gillis indicate that he was in the position of servant to the railroad. He performed maintenance work on signals, communications and electrical work such as flasher lights and crossing bells on designated sections of track. To reach the areas of track which needed work, he was assigned two pieces of railroad equipment — a truck and a motorcar. The railroad’s position as sole owner and ultimate controller of the vehicles assigned to Gillis placed upon it a duty to maintain those vehicles in safe working order for the protection of Gillis. In recognition of this duty, the railroad gave him a credit card for the truck and hired a maintenance supervisor for the motorcar.

The contested issues of FELA liability are whether the railroad was negligent and whether the conduct of the railroad bore a causal relation to the accident and the resultant injuries. Both of these issues are for jury .determination, but it is the function of the presiding judge at trial and this Court on appeal to decide whether the evidence introduced on either of the issues was sufficient to submit the case to the jury.

The negligence issue is comprised of two key-word elements — foreseeability and reasonable diligence.

To satisfy the element of foreseeability, it is not necessary for appellants to have been able to predict with accuracy the precise details of the accident. It is only necessary that there “were probative facts from which the jury could find that [appellant] was or should have been aware of conditions which created a likelihood that [appellee], in performing the duties required of him, would suffer just such an injury as he did.” Rogers v. Missouri Pacific Railroad Co., 352 U.S. 500, 77 S.Ct. 443, 1 L.Ed.2d 493 (1957). Since Gillis was regularly required to operate the motorcar on railroad tracks which were simultaneously occupied by moving and stationary trains, it was manifestly foreseeable that a mechanical malfunction in the motorcar could result in a collision with consequent injuries to Gillis.

As to the question whether the railroad exercised reasonable diligence to discharge its duty and avoid foreseeable injuries, evidence of the railroad’s procedure for inspection, repair and maintenance of its vehicles is relevant. It is uncontested that the railroad did not conduct a trouble shooting system of inspection on its vehicles. The motorcar involved in the accident had been used by Gillis for three years and during that time no efforts were made to avert mechanical difficulties until specific problems arose. Instead of holding regular inspections, the railroad instituted a company policy that placed a duty on Gillis and other motorcar operators to report mechanical trouble when it arose by calling the maintenance supervisor.

The only trouble Gillis could spot was trouble which had already caused a malfunction. As he said on direct examination, “You run it until something got wrong with it and then you would notify the maintenance supervisor, and he would take the problem from there.” On the occasion in question, a parked caboose intervened between the time Gillis discovered something wrong with the motorcar and his first opportunity to notify the maintenance supervisor. The railroad’s failure to inspect or repair motorcars until a malfunction occurred unreasonably increased the risk that such an accident would eventually occur.

The railroad relies on two facts in its defense : First, after the accident, the cause of the jammed brakes was unknown; and, second, the possibility that a prior inspection would have revealed a defect is too speculative. If the railroad had actually conducted a regular inspection procedure, these arguments would go far toward discharging its duty of care. But, in retrospect, to say that if we had inspected, perhaps we would have found nothing, avails the railroad little. As to the railroad’s duty to inspect, see Shenker v. Baltimore and Ohio Railroad Company, 374 U.S. 1, 83 S.Ct. 1667, 10 L.Ed.2d 709 (1963).

From the evidence adduced on the appellants’ inspection procedures, we conclude that there were sufficient probative facts before the jury to justify the finding that the railroad breached its duty to maintain its vehicles in safe operating condition.

On the issue of causation, the railroad’s reply brief argues that there was no evidence that “but for” the failure to provide preventive maintenance the accident would not have occurred, nor was there any evidence that failure to conduct preventive maintenance was the proximate or direct cause of the accident. These tests, however, are not applicable to establish causation in actions brought under the FELA. In Rogers v. Missouri Pacific Railroad Co., supra, the United States Supreme Court held that “[u]nder this statute [FELA] the test of a jury case is simply whether the proofs justify with reason the conclusion that employer negligence played any part, even the slightest, in producing the injury or death for which damages are sought. It does not matter that, from the evidence, the jury may also with reason, on grounds of probability, attribute the result to other causes . . .”

In this case, a jury question of causation can be made out easily. Gillis was injured because the brakes on the motorcar he was operating jammed and he was unable to stop before hitting a parked caboose. Although the precise reason for the malfunction will never be more than conjectural, a reasonable conclusion is that there was an existing defect in the brake system which a proper inspection by the railroad would have revealed and corrected. These facts make out a jury question under Rogers v. Missouri Pacific Railroad Co., supra.

The other theory for recovery argued by Gillis is under the “Hand Brake Act,” 45 U.S.C.A., § 11. The language of the statute itself does not impose civil liability, but only makes it unlawful to operate railroad cars in interstate commerce which are not equipped with certain safety appliances, including “efficient hand brakes.” Case law, however, has judicially imposed civil liability on employers when their noncompliance with the act causes injury to employees. United States Supreme Court decisions have imposed an absolute duty on the railroads to comply with the Federal Safety Appliance Act, and the railroad’s freedom from negligence is no defense. Affolder v. New York, C. & St. L. R. Co., 339 U.S. 96, 70 S.Ct. 509, 94 L.Ed. 683 (1950); Carter v. Atlanta & St. Andrews Bay Ry. Co., 338 U.S. 430, 70 S.Ct. 226, 94 L.Ed. 236 (1949); O’Donnell v. Elgin, J. & E. Ry. Co., 338 U.S. 384, 70 S.Ct. 200, 94 L.Ed. 187 (1949).

The Alabama Supreme Court has recognized this rule. Shepherd v. Southern Railway Company, 288 Ala. 50, 256 So.2d 883 (1970). To recover Gillis must show only that his injury was caused in whole or in part by the railroad’s violation of the act. Central of Georgia Ry. Co. v. Greene, 202 F.2d 658 (5th Cir. 1953, Ala.). A motorcar such as Gillis was operating falls within the ambit of “cars” under the Hand Brake Act. Martin v. Johnston, 79 So.2d 419 (Fla.), cert. denied, 350 U.S. 835, 76 S.Ct. 71, 100 L.Ed. 745 (1955). Since a violation of the Act is made out simply by a failure of the handbrakes without proof of specific defect or lack of due care, the fact that the brakes worked properly both before and after the accident will not relieve the employer of liability if there is proof that they failed at the time of the accident. Texas and Pacific Railway Company v. Griffith, 265 F.2d 489 (5 Cir. 1959); Spotts v. Baltimore & O. R. Co., 102 F.2d 160 (7 Cir.), cert. denied 307 U.S. 641, 59 S.Ct. 1039, 83 L.Ed. 1522 (1938); Atchison, T. & S. F. Ry. Co. v. Keddy, 28 F.2d 952 (9 Cir.), cert. denied 279 U.S. 856, 49 S.Ct. 351, 73 L.Ed. 997 (1928). In this case, the jury heard Gillis’s uncontroverted testimony that the brake jammed. This was sufficient evidence for the jury to return a verdict that appellant violated the Hand Brake Act. Cause is obvious; Gillis could not avoid the collision because the brake on his motorcar did not work efficiently. On these facts, a jury question was made out on appellant’s liability under 45 U.S.C.A., § 11.

The extent of damages under FELA is peculiarly a fact question for the jury. Louisville & N. R. Co. v. Dollar, supra; Louisville & N. R. Co. v. Steel, 257 Ala. 474, 59 So.2d 664 (1952). Where, as here, the presiding judge fails to grant a new trial on the excessiveness of the jury verdict, the verdict is strengthened. Mordecai v. Cardwell, 270 Ala. 723, 121 So.2d 898 (1960). On appeal, we will not overturn the verdict unless it clearly appears to have resulted from an intentional disregard of the evidence. Such is not the case. We therefore affirm.

Affirmed.

HEFLIN, C. J., and MERRILL, MADDOX and SHORES, JJ., concur.

      . This case was tried under the rules existing prior to the adoption of ARCP. This statute has now been superceded by Rule 4, ARCP.

      . See also the recent case of Louisville & N. R. Co. v. Dollar, 294 Ala. 276, 314 So.2d 867 (1975).


source: Caselaw Access Project

author:
ALMON, Justice.
      JONES and SHORES, Justices

license: Public Domain

text:
    Josephine D. RAWLINS v. Mary Lee COOK et al.
    SC 1128.
    Supreme Court of Alabama.
    Oct. 3, 1975.
    Rehearing Denied Nov. 6, 1975.

      John A. Lockett, Jr., Selma, for appellant.
    Jackson & Sikes and William J. Bryant, Selma, for appellees, Mary Lee Cook as Executrix and heirs at law of Elmer L. Cook.
    J. E. Wilkinson, Jr., Selma, for appellee, The Peoples Bank & Trust Company.
   ALMON, Justice.

Elmer L. Cook, deceased was the owner of certain real property located in Dallas County. This property was mortgaged to the Peoples Bank and Trust Company of Selma. Cook entered into an oral contract on or .about December, 1971, or January, 1972, to sell the property to appellant, Josephine D. Rawlins, for $70,000.00 with appellant agreeing to maintain fire insurance on the premises for the benefit of the purchaser, seller, and mortgagee as their interests appeared. Appellant paid $10,500.00 down and went into possession of the premises on January 1, 1972.

Elmer L. Cook, the seller, died testate on February 12, 1972. In and by his last will and testament Mary Lee Cook, one of the appellees herein, was named executrix of his estate and was devised the subject property. Shortly after the death of the seller, on or about March 23, 1972, appellant filed a bill for specific performance relative to the subject property (hereinafter called Suit I). Subsequent to the filing of the bill for specific performance but prior to trial, appellant entered into a written contract of sale of the subject premises to Thomas Gober for the sum of $70,000.-00. Gober paid $1,000.00 as a binder but never went into possession of the property. The bill for specific performance was tried on June 9, 1972, and the decree was entered on August 1, 1972.

The main structure located on the subject premises was destroyed by fire on July 5, 1972. Notwithstanding the fact that appellant had procured insurance on the subject property in accordance with the terms of the oral contract, the insurance companies refused to honor the claim relative to the damaged property, and the mortgagee bank, the assignee of each of the insurance policies, brought suit (hereinafter called Suit II). By amendments, appellant and the other appellees were made parties to the suit. The estate of Elmer L. Cook and others, likewise, filed suit against the insurance companies. In a pretrial order, the court consolidated the two cases against the insurance companies for jury-trial. The jury returned a verdict in the amount of $60,000.00. On the trial of the case, all of the parties stipulated the amount owed the bank and the fact that it had a first lien on the funds and should be paid the amount of its mortgage.

Appellant made application to the court for a rehearing of its decree of August 1, 1972, involving Suit I. The application was continued from time to time until the conclusion of Suit II and was subsequently granted by the court on June 21, 1974.

On April 4, 1974, the trial court entered an order disbursing the insurance proceeds ultimately received as a result of Suit II. The law firm of Jackson and Sikes was awarded $11,310.77 as attorneys’ fees and out-of-pocket expenses; the mortgagee was awarded $31,118.58 in payment of its mortgage on the subject property; and the remaining proceeds were held by the court pending a determination of the rehearing of Suit I.

A final decree determining the rights of appellant and granting her specific performance in Suit I was entered on December 23, 1974, from which this appeal was taken.

Appellees have filed motions in this court claiming assignments of error I and V (dealing with attorneys’ fees and payment or the mortgage) should be struck as they relate to action by the trial court in its judgment in Suit II, from which no appeal was taken. While there is some merit to this motion, we need not address ourselves to it as we are of the opinion that assignments of error IV (dealing with the remaining balance on the purchase price of the property) properly raises the question of the distribution of the insurance proceeds in Suit I from which this appeal was taken.

Appellant contends that the trial court erred in finding that appellant owed a remaining unpaid balance on the purchase price of $16,097.59. We agree.

Whether attorneys’ fees were properly awarded in Suit II under Tit. 46, § 63, Code of Alabama 1940, Recompiled 1958, is not before us. In that regard, however, see a history of this section in Dent v. Foy, 214 Ala. 243, 107 So. 218 (1925).

The effect of the final decree in Suit I was to charge attorneys’ fees to appellant.

The granting of specific performance of a contract is as though the court is enforcing the quid pro quo. The appellant, upon tendering into the court an appropriate sum of money, was entitled to the land and buildings contracted for. Since one of the buildings was destroyed by fire, she was entitled to the insurance proceeds subject only to prior legal claims against the proceeds. Clearly, the bank which held a mortgage on the property in question had such a prior claim. We find nothing in the record to indicate that appellant should be responsible for any attorneys’ fees to which the attorneys for the estate of Elmer L. Cook may be entitled.

Thus, we hold that the appellant in the instant case should be given an additional credit of $11,310.77 toward the purchase price. There may be other matters of credit which the trial court should consider upon remandment of this cause.

The judgment is hereby reversed and the cause remanded for entry of judgment (final decree) in conformity with this opinion.

Reversed in part and remanded with directions.

MERRILL, BLOODWORTH, MADDOX, FAULKNER and EMBRY, JJ., concur.

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

JONES, J., with whom SHORES, J., joins, concurs in the result with opinion.

JONES and SHORES, Justices

(concurring specially):

From the posture of the record before us, we concur that the cause must be remanded and that Mrs. Rawlins cannot be charged the entire attorneys’ fee. The majority holds that she cannot be charged any portion of the $11,310.77 fee paid to the attorneys for the estate. Perhaps this is true. To be sure, if the parties plaintiff in the insurance claim each employed their respective attorneys who contributed to the ultimate success of the litigation, absent any agreement to the contrary, then the fee distributed to the estate’s attorneys should be chargeable solely against the estate. The record is unclear as to these facts. We believe that on remand of this cause further findings of fact should be made as a basis for an appropriate order of distribution of the proceeds of the insurance recovery among the respective parties.

As we understand the opinion of the majority, Mrs. Rawlins performed her obligation under the contract with Mr. Cook to procure insurance on the subject property, which insurance was to protect the interests of the buyer (Mrs. Rawlins), the seller (Mr. Cook) and the mortgagee (the bank) as their respective interests appeared therein.

We further understand from the majority that at the time of the loss Mrs. Raw-lins had an equity interest in the property in the amount of $10,500, which was the down payment thereon. Although it is not clear, it appears that her equity may have been diminished by the $1,000 which she received as earnest money from Mr. Gober.

We do not have the record of the proceedings which resulted in the award by the jury of $60,000 in the consolidated suit by all claimants brought against the insurance companies. We do understand that the parties agreed to accept $59,000 in discharge of all claims against the insurers.

It appears that this $59,000, in some manner not absolutely clear from the record before us, became subject to disbursement by the court in the suit brought by Mrs. Rawlins against the estate of the seller seeking specific performance.

At the time of the decree ordering this disbursement, the balance due on the mortgage held by the bank was $31,118.58; Mrs. Rawlins’ equity in the property was either $10,500 or $9,500; and the balance due the estate of the seller was apparently $28,381.42.

We are aware of the general rule that where the buyer goes into possession under a binding contract for the sale of improved realty, and, before the transfer of the legal title is consummated, the improvements are destroyed by fire, the loss falls on the buyer as the owner of the equitable title. It follows from this general rule that, if the property were insured, the proceeds normally would go first to satisfy the seller’s interest with the excess, if any, to the buyer. Alabama Farm Bureau Mutual Ins. Serv. v. Nixon, 268 Ala. 271, 105 So.2d 643 (1958). See also 12 Ala.L.Rev. 379; Thompson on Real Property, Vol. 8A, § 4449 (1963). Likewise, where expenses of litigation are incurred to effect recovery from the insurance company, it necessarily follows that this expense would normally fall on the buyer.

But this latter conclusion contemplates that the recovery of the proceeds is a result of the buyer’s efforts or that his inaction necessitated the seller’s efforts in that regard.

In this case the record shows that the action against the insurance companies was initiated by the bank and is silent on the quantity and quality of the buyer’s participation. It is equally silent as to the extent of the seller’s participation and also silent as to any acquiescence by the buyer in the seller’s role in obtaining the recovery.

Nothing in the record indicates that the bank’s attorneys or the buyer’s attorneys were paid any part of the recovery for their services in that litigation.

From the record before us, although it is not entirely clear, apparently the efforts of all of the interested parties, the seller’s estate, the bank, and the purchaser, were instrumental in the success of the lawsuit brought against the insurance companies, which resulted in the recovery of a $60,000 jury verdict — later reduced by agreement to $59,000.

Yet, from this $59,000 the trial Court awarded to the attorneys representing the estate of the seller an attorney’s fee in the amount of $11,310.77.

The record does not clearly indicate that the recovery of the insurance proceeds was occasioned by the efforts of the attorneys representing the estate of the seller alone. In fact, one could infer from the references to this lawsuit that it was a joint effort by all of the interested parties which produced this result.

This being the case, we can find no justification for the trial Court’s having awarded, out of the proceeds of that recovery, a fee only to those attorneys. In fact, it appears to us that the parties were entitled to attorneys’ fees, if at all, based upon the pro rata share in the insured property which each party had at the time of the loss. In other words, the proceeds of the insurance policies was to be paid to the parties as their respective interests in the property then appeared. Of the recovery, the bank was entitled to the balance due on the mortgage. The remainder should have been prorated between the buyer and seller as their respective interests then appeared, and the attorneys for each of these parties should have had their fees awarded on the same pro rata basis as the interests of their clients had in the property covered by the insurance.

We find nothing to justify the Court’s having awarded the attorneys representing the estate of the seller an award of fees, apparently without regard to the interest which the estate had in the insured property.

Disregarding the attorneys’ fee disbursement for the moment, it appears that had the $59,000 been applied to the parties proportionately as their interests then appeared in the property, the bank would have received $31,118.52; and the seller’s estate would have been entitled to some $28,381.42, apparently the balance due under the original contract. It is readily apparent, then, that the proceeds of insurance, for which Mrs. Rawlins had paid the premiums would have very nearly equated the amount owing on the mortgage and the balance due the seller under the original contract.

In other words, the total of the amount due the bank and the balance due under the contract to the seller was $59,499.94. Mrs. Rawlins had paid $10,500; when this is added to the $59,499.94, the sum is $69,-999.94 — within cents of the agreed upon $70,000 total purchase price.

The net result, then, of the disbursement decree is to leave Mrs. Rawlins with an obligation to pay the seller $28,381.42, with only $16,097.59 left, after the award of attorneys’ fees to the seller, with which to meet that obligation.

She, therefore, under the terms of that decree is bearing the total cost of recovering the proceeds of the insurance while the record would indicate that this recovery was the joint efforts of all parties interested in the property. Thus, it would seem inequitable to require her to shoulder the entire burden, but rather more equitable to require the parties to share that burden based upon their respective interests in the insured property.

In other words, based upon the above factual presentation, the parties would be entitled to their attorneys' fees incurred in the procurement of the judgment against the insurance companies in the same proportion that the amount of the recovery bears to the pro rata interest of each of the respective parties in the insured property.

Our concurrence in the result of the majority is limited to our agreeing that the cause should be remanded for a determination of what part, if any, of the total award of attorneys’ fees in the insurance litigation should be borne by appellant.


author: HOLMES, Judge.

text:
    Charles E. HOVER v. WHITTAKER-WARREN AGENCY, a partnership.
    Civ. 577.
    Court of Civil Appeals of Alabama.
    Oct. 22, 1975.
    John C. Dowling, Enterprise, for appellant.
    Pittman & Whittaker, Enterprise, for appellee.
   HOLMES, Judge.

This is an appeal from a judgment by the Circuit Court of Coffee County rendered against the defendant-Hover and in favor of the plaintiff-real estate agency.

The issue is whether there is evidence to support the trial court’s judgment that the real estate agency was entitled to a commission on the sale of Hover's home. We find there is, and affirm.

The tendencies of the evidence reveal that in December of 1972, Hover and the real estate agency entered into a contract for the real estate agency to sell Hover’s home. This contract expired after approximately thirty days. The real estate agency’s representative testified a subsequent verbal agreement was entered into by the parties. This subsequent agreement was at a reduced commission. The agency’s representative further testified that he procured the ultimate buyer.

The effect of Hover’s testimony was that the above was not the case.

The ultimate buyer testified that he had dealings with the real estate agency regarding Hover’s home after the original contract between Hover and the real estate agency had expired.

In April of 1973, a sale was consummated by the Hovers directly with the buyer.

A contract employing a broker to procure a purchaser for realty need not be in writing to be valid. Espalla v. Lyon Co., 226 Ala. 235, 146 So. 398. What constitutes procurement of a purchaser, entitling a broker to a commission, is a question of fact. Marx v. Lining, 231 Ala. 445, 165 So. 207.

It is clear from the above that it was encumbent upon the trial court to resolve a conflict in the testimony.

It is equally clear that in Alabama if there is any evidence to support the trial court’s finding we must affirm. 2A Ala. Dig. Appeal and Error <®==:>1008 et seq.

The above principle of law is to be applied in cases of this nature. See Handley v. Shaffer, 177 Ala. 636, 59 So. 286; Penney v. Speake, 256 Ala. 359, 54 So.2d 709.

It is appropriate to quote what this court said in American Home Building & Loan Ass’n v. Long, 24 Ala.App. 34, 129 So. 793:

“To hold in line with the contention of appellant would in effect necessitate a ruling by this court that the judgment so rendered is manifestly and palpably against the evidence in this case, and that the preponderance of the evidence is decidedly adverse to the judgment pronounced and entered. This we cannot do under the general and well-settled principle of law that the verdict of a jury, or judgment by the court upon a trial without the intervention of a jury, should not be disturbed unless the adjudication reached below is far afield from the evidence and the law applicable thereto. A rule of this import is de-dared in the case of Cobb v. Malone, 92 Ala. 630, 9 So. 738. The rule therein stated has been approved and followed by innumerable decisions of the appellate courts of this state.” (24 Ala.App. at 36, 129 So. at 794)

The case of Cobb v. Malone, supra, was reaffirmed by the Supreme Court on September 25, 1975, in Hubbard Bros. Construction Co. v. Halstead, 294 Ala. 688, 321 So.2d 169.

As seen from the above, to wit, the testimony of the representative of the real estate agency and the ultimate buyer, there is evidence to support the learned trial judge’s findings.

The judgment is due to be and is affirmed.

Affirmed.

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


text:
    Charles E. HOVER and Jeanette C. Hover v. Andy E. KIRK and Faye H. Kirk.
    Civ. 578.
    Court of Civil Appeals of Alabama.
    Oct. 22, 1975.

      Hollis and Dowling, Enterprise, for appellants.
    Cassady & Fuller, Enterprise, for appel-lees.
   HOLMES, Judge.

This is an appeal from the Circuit Court of Coffee County. The trial court sitting without a jury entered a judgment in favor of the plaintiffs-Kirk and against defendant-Hover. The amount of the judgment was $1,500.

The suit was for breach of a contract in the sale of the Hovers’ home to the Kirks.

The complaint by the Kirks alleged that included in the sale of the Hovers’ home to the Kirks was certain personal property, to wit, draperies and a television antenna, and that Hover unlawfully removed and withheld these items. Additionally, the Kirks alleged that as part of the purchase agreement an escrow account was represented to be of a certain value when in fact it was not, but was in arrears.

The issues presented by this appeal are whether there is evidence to support the court’s finding that the aforesaid items were included in the sale and that the escrow account was represented to be current, and whether the award of $1,500 damages is excessive.

The evidence as to whether the items mentioned above were included in the sale of the home is in conflict, as is the evidence concerning the escrow account. The effect of the Kirks’ testimony is that the items were so included, or were attached to the realty so as to become a part thereof. The Kirks also testified that they understood the escrow account was to be current at the time of the sale. The Hovers’ testimony is contrary. Under such circumstances it becomes the trial judge’s duty to reconcile such conflict.

It is clear that in Alabama if there is any evidence to support the trial court’s finding we must affirm. 2A Ala.Dig., Appeal and Error, 1010.1(3) et seq.

It is appropriate to quote what this court said in American Home Building & Loan Ass’n v. Long, 24 Ala.App. 34, 129 So. 793:

“To hold in line with the contention of appellant would in effect necessitate a ruling by this court that the judgment so rendered is manifestly and palpably against the evidence in this case, and that the preponderance of the evidence is decidedly adverse to the judgment pronounced and entered. This we cannot do under the general and well-settled principle of law that the verdict of a jury, or judgment by the court upon a trial without the intervention of a jury, should not be disturbed unless the adjudication reached below is far afield from the evidence and the law applicable thereto. A rule of this import is declared in the case of Cobb v. Malone, 92 Ala. 630, 9 So. 738. The rule therein stated has been approved and followed by innumerable decisions of this state.” (24 Ala.App. at 36, 129 So. at 794)

The case of Cobb v. Malone, supra, was reaffirmed by the Alabama Supreme Court on September 25, 1975, in Hubbard Brothers Construction Company v. Halstead, 294 Ala. 688, 321 So.2d 169.

As seen from the Kirks’ testimony, there is evidence to support the learned trial judge’s findings.

There is also evidence indicating the award is not excessive. There is testimony that the Kirks expended over $2,000 to replace the items in controversy and that the draperies taken by the Hovers were of the same approximate value. The judgment was for $1,500. The purpose of awarding damages for breach of a contract is' to put the injured party in the position he would have been in had the contract been fully performed. Champion v. Gaines, 48 Ala.App. 484, 266 So.2d 150; 7A Ala.Dig. Damages <®==>i I7t Furthermore, damages for breach of contract need not be assessed with mathematical precision. See United Bonding Ins. Co. v. W. S. Newell, 285 Ala. 371, 232 So.2d 616.

The judgment is due to be and is affirmed.

Affirmed.

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


author: WRIGHT, Presiding Judge.

text:
    Cassie JEFFERSON v. MITCHELL SELECT FURNITURE CO., INC. Bertha TIBBS v. MITCHELL SELECT FURNITURE CO., INC.
    Civ. 589, Civ. 534.
    Court of Civil Appeals of Alabama.
    Sept. 24, 1975.
    Rehearings Denied Oct. 22, 1975.

      Charles G. Spradling, Jr., and William P. Burgess, Jr., Huntsville, Legal Aid Society of Madison County, for appellants.
    Joseph T. Conwell, Huntsville, for appel-lee.
    Legal Aid Society of Birmingham, Inc. by Marvin H. Campbell, Director, Birmingham, William J. Baxley, Atty. Gen., Julian L. McPhillips, Jr., Asst. Atty. Gen., Lehman J. Lewis and Julian L. McPhillips, Jr., Montgomery, for Bureau of Loans, State Banking Dept., all in support of appellants.
    Truman M. Hobbs and Howard C. Oliver, Montgomery, for Alabama Consumer Finance Assn., in support of appellee.
    William B. Hairston, Jr., Birmingham, in support of appellee.
   WRIGHT, Presiding Judge.

These are two cases consolidated on appeal. The plaintiff below was the same in each case. The pleadings and issues at trial and on appeal are the same. The case specifically written to is that last appealed and orally argued by parties and amicus curiae. The decision following equally applies to each case.

Plaintiff filed suit for the unpaid balance owing after default by defendant on an instrument titled a Retail Installment Contract (Security Agreement). Defendant answered alleging violations by the plaintiff of provisions of the Alabama Consumer Credit Act of 1971 (Mini-Code) Title 5, Chapter 14, Code of Alabama (1940). Defendant further filed counterclaim for statutory damages charging violation by plaintiff of the Federal Truth-In-Lending Act, IS U.S.C. Sec. 1601 et seq. and Federal Reserve Regulation Z, 12 C. F.R. Part 226.

The transaction out of which the suit arose involved the sale and purchase of consumer goods. It was a consumer credit sale under the provisions and definitions of the Mini-Code. The pleadings material to this appeal occurred immediately preliminary to trial. At that time plaintiff filed a combined motion to dismiss defendant’s defense of violation of the Mini-Code and to grant summary judgment on defendant’s counter-claim under Regulation Z. It is from the granting of that motion in each aspect that defendant appeals.

The questions presented to the trial court and to this court on appeal are whether the instrument involved as a matter of law violated the provisions of the Alabama Consumer Credit Act of 1971 (Mini-Code) and Federal Reserve Regulation Z, promulgated under authority of the Federal Truth-In-Lending Act. Related to the first issue are sections of the Uniform Commercial Code of Alabama, Act 549 of the Legislature (1965), Title 7A, Code of Alabama (1940) as recompiled 1958.

The issue involving the Mini-Code is one of first impression before appellate courts of this state. It is a matter of importance to creditors subject to the regulation under the Mini-Code and equally important to consumers. This court therefore requested assistance from those interested on either side in the form of amicus curiae briefs. Such briefs have been filed by the following amici: Attorney General’s Office, State of Alabama; Bureau of Loans, State Banking Department; Legal Aid Society of Birmingham, Inc.; Alabama Consumer Finance Association; Governor’s Office of Consumer Protection, State of Alabama; Rev. Collias Stacy; Cumberland Capital Corporation; and The First National Bank of Birmingham. The court expresses its appreciation for their interest and assistance.

Defendant submits first that the court erred in dismissing her defense that the contract taken by plaintiff as evidence of the obligation of defendant was a negotiable instrument and in violation of the Alabama Consumer Credit Act of 1971 (Mini-Code) codified as Title 5, Chapter 14, Code of Alabama (1940), as recompiled 1958, and that such violation required abatement of the suit.

Title 5, Sec. 319(a) is the first statute to be considered and appears as follows:

In a consumer credit sale or consumer lease, the seller or lessor may not take a negotiable instrument other than a check as evidence of the obligation of the buyer or lessee. A holder is not a holder in due course if he takes a negotiable instrument with notice that it is issued in violation of this section. A holder in due course is not subject to the liabilities prescribed in this chapter.”

This section was taken for all present purposes verbatim from Sec. 2.403 of the Uniform Commercial Credit Code. That code has not been enacted by this state.

Title 5, Sec. 322 is the other section of the Mini-Code which defendant contends is the penalty section to be applied to the violation of Sec. 319(a). Sec. 322 is as follows :

“No creditor under this chapter shall bring suit on any debt for collection, and no judgment by default or otherwise shall be rendered until the creditor shall file an affidavit stating that (a) there has not been a violation of provisions of this chapter, and (b) that the debtor (if a resident of this state) on information and belief of creditor is a resident of the county in which the suit is filed. If such violation exists or if the debtor is not a resident of the county in which suit is filed, the suit shall be abated.”

It is obvious that if 319(a) was not violated, we need not discuss Sec. 322. We comment here however, that Sec. 322, unlike Sec. 319(a) was not a part of the Uniform Commercial Credit Code. It has no counterpart in that code. It is our decision as hereinafter discussed that 319(a) was not violated. Therefore we deem it unnecessary to this decision to construe Sec. 322.

The obvious intention of Sec. 319(a) is to prevent the use of negotiable instruments in consumer credit transactions of the kind subject to the Mini-Code, and thus cut off the benefits accruing to a holder in due course permitted by Sec. 3-305 of the Uniform Commercial Code. The practice of taking negotiable instruments as evidence of a credit sale of poor quality or defective consumer goods to uneducated and unsophisticated purchasers, then cutting off most defenses of the purchaser to collection by quick or simultaneous transfer to a holder in due course is well known to all. The inclusion of Sec. 319(a) in the Mini-Code was an effort by the legislature to curb or prevent such practice by prescribing the type of instrument that might be taken by the creditor or seller in the original transaction. Though directing the consumer credit seller not to take negotiable paper, other than a check, as evidence of the obligation of the purchaser, Sec. 319(a) protects a holder in due course if such should be taken. Of course, it is difficult to conceive how one could be a holder of a negotiable instrument which showed that it was taken in the credit sale of consumer merchandise with retention of title and a purchase money security interest, without knowledge that it arose from a Mini-Code transaction.

This analysis of Sec. 319(a) in summary discloses two aspects. First, the legislature in enacting the Consumer Credit Act (Mini-Code) intended that instruments drawn by regulated credit sellers and presented by them to their customers for execution as evidence of obligations arising from a sale, should not be negotiable commercial paper as defined by Article 3, Sec. 104, Uniform Commercial Code. Second, if in spite of the prohibition of the statute, a negotiable instrument should be taken, a holder thereof cannot be a holder in due course if he takes the negotiable instrument with notice that it was issued as a result of a consumer credit sale. The buyer is thus protected by a prohibition against the creditor and by the restrictions of notice placed upon a holder should a negotiable instrument be taken in violation of the statute.

If the instrument to be taken as evidence of the obligation of the buyer is not to be a negotiable instrument under the provisions of Article 3 of the Uniform Commercial Code, it can only be classified as a contract creating a security interest under Article 9, Uniform Commercial Code.

Upon examination of the instrument taken by plaintiff in this case and consideration of the circumstances and purpose for which it was taken, we conclude that it is not a negotiable instrument under the provisions of Article 3 of the Uniform Commercial Code, but is a contract creating a security interest under Article 9 of the Uniform Commercial Code.

Due to its length, we do not set out the contract signed by both plaintiff and defendant in this case; however, we agree with defendant that it contains the necessary elements of a negotiable instrument set out in Sec. 3-104 of the U.C.C. It also contains other terms which do not affect negotiability according to Sec. 3-112, U.C.C. Therefore, we do not hold the instrument non-negotiable because it contains terms and conditions foreign to a negotiable instrument and not permitted by Sec. 3-112.

Amici have cited Geiger Finance Company v. Graham, 123 Ga.App. 771, 182 S.E.2d 521; Discount Purchasing Company v. Porch, 12 U.C.C.Rep.Ser. 600, (Tenn.Ct. of App., 1973), and Pacific Finance Loans v. Goodwin, 41 Ohio App.2d 141, 324 N.E.2d 578. These cases were all suits on instruments entitled “Retail Installment Contract” or similar titles. They were suits brought on the instrument by plaintiffs claiming to be holders in due course. The appellate courts held in each instance that the plaintiffs had no holder in due course status because the instruments were not negotiable under Article 3 of the U.C.C. but were contracts arising from the credit sale of consumer goods as they purported to be. Such instruments were subject to the provisions of Article 9 of the U.C.C. Though the opinions in Geiger and Porch, Supra, discussed the fact that the instruments contained obligations and conditions beyond those permitted a negotiable instrument by Sec. 3-112, U.C.C., the basic premise of the decisions was that even though the instruments contained terms of negotiability, they were in fact, just what they were stated to be, retail installment contracts. Not Article 3 commercial paper but Article 9 instruments.

In the Geiger case, the court pointed out that Georgia had enacted Code Chapter 96-9 specifically covering retail installment transactions and that it was clear that the legislature considered such contracts to be something other than Article 3 commercial papers.

As with the Georgia Code, Chapter 96-9, the Mini-Code is supplementary to the Uniform Commercial Code of Alabama. The instrument in the instant case is entitled “Retail Installment Agreement (Security Interest).” It was drawn by one regulated by the Mini-Code. It contains matters required by the Mini-Code, and the rules and regulations issued by the administrator of the act. In enacting the Mini-Code the Alabama legislature intended that contracts drawn thereunder not be commercial paper in the sense of negotiability.

Sec. 3-103(2), U.C.C. provides that Article 3 is subject to the provisions of Article 9. It recognizes that instruments which by included terms might satisfy requirements of negotiability may, because of the nature of the transaction, be subject to Article 9. If conflict arises Article 3, being general, becomes subject to Article 9. 11 Am.Jr.2d, Bills and Notes, Sec. 47; Vol. 2 Anderson, Uniform Commercial Code, Sec. 3-103:3, page 592; Sec. 3-103, U.C.C.

Though the contract here contains in form sufficient terms for it to fall within Article 3, the bulk of its terms provide for retention of title and preservation of a purchase money security interest as prescribed by Article 9. Therefore, the specific provisions of Article 9 control. Any doubt as to negotiability is resolved against negotiability. Geiger Finance Co. v. Graham, Supra.

Sec. 9-105(1)(g) U.C.C. provides as follows :

“(g) ‘Instrument’ means a negotiable instrument (defined in Section 3-104), or a security (defined in Section 8-102) or any other writing which evidences a right to the payment of money and is not itself a security agreement or lease and is of a type which is in ordinary course of business transferred by delivery with any necessary indorsement or assignment.” (Emphasis supplied.)

The comment to the above states :

“ ‘Instrument’: . . . If a writing is itself a security agreement or lease with respect to specific goods it is not an instrument although it otherwise meets the term of the definition.”

It is the opinion of the court, though probably prolixly stated, that the instrument here is not a negotiable instrument but is a retail installment contract and security agreement subject to the provisions of Article 9 of the Uniform Commercial Code. The defense that suit must be abated under the provisions of Title 5, Sec. 322 (Mini-Code) of the Alabama Code is not well taken and was due to be dismissed as a matter of law.

Defendant next charges error in the granting of summary judgment in favor of plaintiff on defendant’s counter-claim for penalty to be assessed against plaintiff for violation of the disclosure requirements of the Federal Truth-In-Lending Act, Title 15, Chapter 41, U.S.C. and Regulation Z promulgated under authority of the Act by the Federal Reserve Board.

Defendant charged plaintiff by way of counter-claim with violation of the Act, and demanded judgment under provisions thereof for penalty of $100.00 and costs. A copy of the contract with its disclosures was attached. Defendant subsequently moved for summary judgment thereon, again attaching a copy of the contract. Plaintiff then filed motion for summary judgment on the counter-claim. Plaintiff’s motion was granted without supporting affidavits.

Defendant charges that the court erred as a matter of law because the contract shows on its face to be in violation of credit disclosure requirements. Title IS, Sec. 1631(a) U.S.C. provides as follows:

“(a) Each creditor shall disclose clearly and conspicuously, in accordance with the regulations of the Board, to each person to whom consumer credit is extended and upon whom a finance charge is or may be imposed, the information required under this part.”

Title 15 Sec. 1638, U.S.C. sets out the items to be disclosed. Among the items for disclosure is the “default, delinquency, or similar charges payable in the event of late payments.”

Title IS, Sec. 1640, U.S.C. sets the liability to the buyer for failure to properly disclose and further provides that an action may be brought in federal district court or any other court of competent jurisdiction.

Regulation Z, Sec. 226.6 also requires disclosures be made clearly, conspicuously and in meaningful sequence. It further provides that the terms “finance charge” and “annual percentage rate” shall be printed more conspicuously than other required disclosures and not in less than 10 point type.

Examination of the contract taken by plaintiff discloses the default or delinquency charges to be in extremely fine print without any emphasis from the other portion of the text where located. Though neither the Act nor Regulation Z defines the terms clearly and conspicuously, we find a definition of such terms in our own Uniform Commercial Code, Title 7 A, Sec. 1-201(10), There it is said:

“A term or clause is conspicuous when it is so written that a reasonable person ought to have noticed it. . . Language in the body of a form is “conspicuous” if it is in larger or other contrasting type or color.”

With that definition, the required disclosure of the default or delinquency charges is not as a matter of law clear and conspicuously made in the contract.

The items “finance charge” and “annual percentage rate” are found in an offset column on the right of the contract. Though all the items in the column are in larger print than the default and delinquency charges, the items “finance charge” and “annual percentage rate” are not in larger print than the other required items of disclosure. They are not more conspicuous than the other items as required by Regulation Z and not in the 10 point type required. Thus, Regulation Z is again violated as a matter of law.

A creditor in violation of the Act and Regulation Z may escape liability therefor only by proof that the violation was unintentional and resulted from bona fide error notwithstanding the maintenance of procedures reasonably adapted to avoid such error. Title IS, Sec. 1640(c), U.S.C. This “good faith” defense cannot be supported by evidence of ignorance or error of law. Haynes v. Logan Furniture Mart, 7 Cir., 503 F.2d 1161; Palmer v. Wilson, 9 Cir., 502 F.2d 860.

Plaintiff here did not traverse defendant’s motion for summary judgment but joined issue on the counter-claim with a general denial. The instrument itself furnishing sufficient evidence of violation, summary judgment for plaintiff was error. Such judgment was due to be given on the motion of defendant. The trial court did not err in granting plaintiffs motion to dismiss defendant’s second defense. The court did err in granting summary judgment to plaintiff as to defendant’s first counter-claim. We therefore reverse and remand because of such error, and direct summary judgment be entered on defendant’s counter-claim.

Reversed and remanded with directions.

BRADLEY and HOLMES, JJ., concur.


author: BRADLEY, Judge.

text:
    Amos GARRETT and Phil N. Schock, Jr., a/k/a Philip Schock v. Euel Lee VINES and Sarah B. Vines.
    Civ. 643, 643-A.
    Court of Civil Appeals of Alabama.
    Oct. 22, 1975.
    J. Connor Owens, Jr., Bay Minette, for appellant Phil N. Schock, Jr.
    Taylor D. Wilkins, Jr., Bay Minette, for appellant Amos Garrett.
    James R. Owen, Bay Minette, for appel-lees.
   BRADLEY, Judge.

This is an appeal by the co-defendants, Dr. Amos Garrett and Philip Schock, from a summary judgment entered for plaintiffs.

On September 11, 1972 Dr. Garrett gave Mr. Vines, one of the plaintiffs, a quitclaim deed to Lot 13, Second Addition to Garrett’s Subdivision in Baldwin County. In exchange, Mr. Vines paid $10,000, of which Dr. Garrett received sixty percent and his agent, Phil Schock, received forty percent. Mr. Vines subsequently discovered that Dr. Garrett had made a prior conveyance of the property to the county for a consideration of ten dollars and other valuable consideration.

On March 11, 1974 Mr. Vines filed a complaint in the Circuit Court of Baldwin County, alleging that Dr. Garrett had misrepresented that he was' the owner of the property and was able to convey good title, a representation plaintiffs allegedly relied on. Plaintiffs sought judgment of $10,000. Dr. Garrett’s answer denied any misrepresentation.

On January 7, 1975 Dr. Garrett and Mr. Vines were deposed. In his deposition Dr. Garrett stated that he had never represented to Mr. Vines that he could convey good title, but, to the contrary, had warned Mr. Vines that any title he did convey would be questionable and Mr. Vines would be a fool to buy it. Nonetheless, according to Dr. Garrett, plaintiffs persisted in attempting to buy the land, and ultimately the sale was consummated.

Mr. Vines’ deposition flatly denied the truth of Dr. Garrett’s deposition.

On March 25, 1975 plaintiffs moved for summary judgment. The motion was granted on April 7, 1975, and judgment entered for plaintiffs the following day. The two depositions and the deeds conveying the land to Baldwin County and to plaintiffs were the only evidence before the trial court.

If Dr. Garrett s deposition is true, then plaintiffs would not have a cause of action. To make out a prima facie case, plaintiff must show, inter alia, a material misrepresentation. Shafer v. Timmons, 51 Ala.App. 157, 283 So.2d 609.

It is apparent, therefore, that Dr. Garrett’s deposition sets forth facts which formed the basis of a defense to the action. Mr. Vines’ deposition unequivocally and categorically denied the existence of those facts. The presence of a genuine issue as to a material fact precludes the granting of a summary judgment. Birmingham Television Corp. v. Water Works, 292 Ala. 147, 290 So.2d 636. We can think of no more genuine issue of material fact than that presented here. The trial court erred in entering summary judgment where there is such a glaring conflict in the evidence.

The entry of summary judgment is reversed and the cause remanded.

Reversed and remanded.

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


text:
    Noah Earl TOLBERT v. STATE.
    6 Div. 781.
    Court of Criminal Appeals of Alabama.
    Dec. 17, 1974.
    Rehearing Denied Jan. 21, 1975.

      B. J. McPherson, Oneonta, Benjamin Daniel, Birmingham, for appellant.
    William J. Baxley, Atty. Gen., and Kermit M. Downs, Asst. Atty. Gen., for the State.
   W. J. HARALSON, Supernumerary Circuit Judge.

This appeal is from a conviction for a violation of Title 14, Section 234(13), Code of Alabama 1940, Recompiled 1958, with a fine assessed against the defendant of $5,000.

The indictment contains two other counts charging violations of other sections of the Alabama Worthless Check Act, but these counts were withdrawn before the case went to the jury.

Count number 2, upon which the appellant was convicted, is based upon Section 234(13), supra, which reads as follows:

“It shall be unlawful for any person to draw a check, or to cause or direct the drawing of a check, with intent to defraud, on any depository which does not actually exist or on any existing depository in which the maker, drawer, or payer of the check has no check account, knowing at the time of the drawing of such check that the named depository does not exist or that the maker, drawer, or payer of the check has not [no] check account with the existing, named depository.”

A pleading entitled “DEMURRER AND MOTION TO QUASH” was addressed to this count and was overruled by the court. We consider the grounds of this demurrer and motion as being too general in nature and failing to point out any specific defect in the indictment. Van Nostrand v. State, 51 Ala.App. 494, 286 So.2d 903, cert. denied 291 Ala. 799, 286 So.2d 906; Thomas v. City of Enfaula, 44 Ala.App. 643, 218 So.2d 813, cert. denied 283 Ala. 719, 218 So.2d 817.

Although the above authorities foreclose a consideration of the invalidity of the indictment, we think it is appropriate to refer to some of the argument advanced by appellant as to the constitutionality of the Alabama Worthless Check Act. Her contentions are based mostly on the holding in the case of Goolsby v. State, 213 Ala. 351, 104 So. 901. The case of Irvin v. State, 44 Ala.App. 101, 203 So.2d 283, recognizes the pertinent rule in Goolsby, supra, but does not make a decision upon it since the question was not properly raised in the trial court. The question raised in the cases just referred to was directed to Article 4 of Legislative Act 566, approved on November 19, 1959. This act, as against the maker or drawer thereof, made the act of making, drawing, or uttering of a check, the payment of which is refused by the drawee, prima facie evidence of intent to defraud on the part of maker and did not remove the incompetency of the defendant to testify to his intent in making the particular instrument.

The same argument is directed to Title 14, Section 234(17) by the appellant in the instant case. At the time of the passage of Act 566, supra, and the Alabama Worthless Check Act, a witness, defendant or otherwise, could not testify to his intent in the doing of an unlawful act. However, in the recent case of Starr v. Starr, 293 Ala. 204, 301 So.2d 78, this rule has been changed and a witness may now testify to his intent or mental operation, as now particularly set out in the above entitled case.

We may further observe that the substantial rights of appellant could not have been injuriously affected because she was allowed to testify fully as to her thoughts and intentions with regard to the commitment of the act charged in the instant case.

The further argument is made that the trial court did not have jurisdiction to try this case since the proper venue for the trial of the alleged act complained of is in the State of Georgia. This question was raised by a special plea along with a general plea of not guilty.

According to the evidence offered by the State, the appellant was engaged in the business of buying and selling eggs in Blount County, Alabama, while the prosecuting witness, Hogan, operated a business in the State of Georgia, which engaged in selling eggs. The testimony reveals that many transactions took place between the appellant and the business concern in Georgia in which she would send a truck to the Hogan Farms, the trade name of the Georgia business operation, pick up a load of eggs and send a check in payment of a previous truck load which she had obtained. On the particular occasion of October 9, 1972, she sent her agent, witness Robinson, to pick up a truck load of eggs and also sent a check for $893.70, payable to Hogan Farms, which he delivered, which was in payment of eggs bought in September. It further appears several of these checks had been returned to the payee by the National Bank of Commerce of Birmingham, on which they were drawn, with the markings thereon that the account had been closed. The particular check delivered on October 9, 1972, the basis of the prosecution in the instant case, was returned by that bank with the notation that the account had been closed.

The appellant argues strenuously that under the circumstances shown by the evidence, the offense charged was indivisible and was consummated in the State of Georgia rather than Alabama, therefore, venue was in Georgia and the trial court had no jurisdiction to try this case. In support of this argument, she relies mostly upon the case of DeGraffenried v. State, 28 Ala.App. 291, 182 So. 482. In DeGraffen-ried, supra, this court holds where a blank divorce decree taken from the office of the register in Russell County, Alabama, by an attorney who took it to Columbus, Georgia, and there forged the instrument so as to make it appear to be a valid de-vorce decree issued in Alabama, the venue was in the State of Georgia. The case further holds that it was a crime of indivisible nature and that the forging of the decree in Columbus, Georgia, constituted the whole crime.

We do not think DeGraffenried, supra, supports appellant’s contentions but, in fact, we are persuaded it is authority to uphold the action of the trial court in the instant case.

Code of Alabama, Title IS, Section 93, provides as follows:

“When the commission of an offense, commenced here, is consummated without the boundaries of this state, the offender is liable to punishment therefor; and the jurisdiction in such case, unless otherwise provided by law, is in the county in which the offense was commenced.”

Reverting to DeGraffenried, supra, we quote from that opinion as follows:

“The opinion here prevails that section 4893 [Title IS, Section 93] of the Code does not apply where the crime is a single indivisible offense not consisting of several parts, such is not within the operation of the statute. We are of the opinion that before it can become operative in a criminal case, one of two things must appear; either the offense must be divisible and each part must be unlawful in and of itself, and committed at a different time and place, or it must consist of more than one act, each of which acts, or the effect of each must constitute an unlawful element of the offense, without the presence of which the offense could not be consummated.” Emphasis added.

We are of the opinion that the crime charged is of a divisible nature. In this connection we call attention to stibdivision (d), Title 14, Section 234(11) which defines the word “drawing” as used in Section 234(13), supra, as “the making, drawing, uttering, issuing, or delivering of a check.” It appears to us that the drawing of a check in Alabama on any existing depository in which the drawer or payer has no checking account, with the intent to defraud, and the subsequent delivery of said check by an agent of the drawer in another state is a divisible crime, with several different elements and that Title 15, Section 93, supra, sets out the applicable law in the case at bar.

Appellant further urges that the fact that a promissory note was made by appellant and accepted by the creditor, which note covered the check which is the basis of this prosecution and several others, constitutes a defense against criminal action for the violation of the Alabama Worthless Check Act. As to whether or not this matter might be germane in a civil action is a question with which we are not here concerned. It would be no defense in a criminal action.

In view of what has been said, it follows there was no error in the action of the trial court in overruling the motion to exclude the testimony introduced by the State, nor in refusing the affirmative charge requested in writing by appellant.

The written charges requested by appellant were either bad or covered by the oral charge of the court or requested written charges which were given.

We have discussed the principles and issues pertinent to a decision in this case and from a careful review of the record, we find no error of a substantial nature. The case is due to be and is hereby affirmed.

The foregoing opinion was prepared by Honorable W. J. Haralson, Supernumerary Circuit Judge, serving as judge of this Court under Section 2 of Act No. 288, Acts of Alabama, July 7, 194S, as amended; his opinion is hereby adopted as that of the Court.

The judgment below is hereby

Affirmed.

All the Judges concur.


author: SHORES, Justice.

text:
    In re Noah Earl TOLBERT v. STATE of Alabama. Ex parte Noah Earl Tolbert.
    SC 1136.
    Supreme Court of Alabama.
    Sept. 4, 1975.

      J. Massey Relfe, Jr, Birmingham, for petitioner.
    William J. Baxley, Atty. Gen. and Kermit M. Downs, Asst. Atty. Gen, for the State.
   SHORES, Justice.

We granted certiorari in this case because the court has not considered the constitutionality of the Alabama Worthless Check Act enacted by the 1971 Legislature, Act No. 2479, Vol. V, page 3958, approved October 1, 1971, and now carried as Title 14, §§ 234(9)-(21), Code of Alabama Recompiled 1958, Pocket Part. The Court of Criminal Appeals held the act constitutional.

The legislature stated the purpose of the act as follows:

“It is the purpose of this act to provide a remedy for the evil of giving checks on a depository without first providing sufficient funds or credit in such depository to pay the checks on presentment after the payment date written on the check. Also, it is the purpose of this act to remedy the situation where a check is given on a nonexistent depository or on one where the drawer has no account. Such present activity tends to create the circulation of worthless checks on banks, bad banking, check kiting, and a mischief to trade and commerce.” (Section 1)

The petitioner was indicted for alleged violations of this act and the jury returned a verdict of guilty and fixed a fine at $5,000. This judgment of conviction was affirmed by the Court of Criminal Appeals.

The facts of this case as pertinent to our decision are: Mrs. Tolbert, the defendant, had for several years bought eggs from a Mr. Hogan. Mrs. Tolbert would send her truck to Mr. Hogan’s place of business in Georgia and pick up a load of eggs. When a load of eggs was picked up, a check covering the cost of the last load was sent. In other words, a check covering the cost of the preceding load was delivered to Mr. Hogan when the next load was picked up. On October 9, 1972, Mrs. Tolbert sent her truck to Mr. Hogan’s place of business; and the driver delivered to Mr. Hogan a check in the amount of $893.70 for payment of eggs received the preceding week. It is this check which was the subject of the indictment.

The evidence is without conflict that prior to the October 9, 1972, check, Mrs. Tolbert had delivered checks to Mr. Hogan which had been returned for insufficient funds. Several such checks were outstanding in October of 1972, totaling several thousand dollars.

Mr. Hogan testified that he had called Mrs. Tolbert a number of times about the outstanding checks, and went to Oneonta to see her about the matter in December, 1972. A that time, the parties had a conversation about the indebtedness; and Mrs. Tolbert admitted that she owed the money and suggested that she sign a note for the full amount of all outstanding checks. The October 9th check had not been presented for payment in December, 1972. Following this meeting, a note in excess of $8,000 was executed by Mrs. Tolbert and delivered to Mr. Hogan. This note was payable July 8, 1973.

On May 7, 1973, the October 9th check was presented to the drawee bank and was stamped “ACCOUNT CLOSED.” The grand jury returned the indictment in this case in August, 1973.

The petitioner challenges the constitutionality of the Alabama Worthless Check Act, contending that it is unconstitutionally vague and ambiguous; that its provisions are in conflict; and that it violates Article 1, Section 20 of the Constitution of 1901, providing “That no person shall be imprisoned for debt.” ¡

Section 5 of the Act provides:

“It shall be unlawful for any person to draw a check, or to cause or direct the drawing of a check, with intent to defraud, on any depository which does not actually exist or on any existing depository in which the maker, drawer, or payer of the check has no check account, knowing at the time of the drawing of such check that the named depository does not exist or that the maker, drawer, or payer of the check has not [sic, no] check account with the existing, named depository.”

It is the contention of the petitioner that this section is in conflict with Section 1, which speaks in terms of presentment, and also Section 9, which provides:

“As against the person drawing the check, or the person causing or directing the drawing of the check, the drawing of such check, payment of which is refused by the depository, shall be prima facie evidence of intent to defraud and of knowledge of insufficient funds in or credit with such depository, provided such person has not paid the holder of the check the amount due thereon within ten (10) days after receiving notice that payment of such check was refused by the depository. This section also applies to postdated checks, where payment is refused by the depository on presentment after the postdate.”

We think it is clear that the offense is complete when the check is drawn (meaning as defined by the act “drawing, uttering, issuing, or delivering,” Section 3), with the intent to defraud, knowing at the time of drawing that there are insufficient funds in the drawee bank to cover such check, or knowing at the time of drawing that the depository on which the check is drawn does not exist, or that drawer has no account with an existing depository.

We find no fatal conflict between the quoted provisions of the act. Clearly, the act requires the prosecution to prove specific intent to defraud. One commentator has said in this regard:

“ . . . Because proving such intent can be an elusive undertaking, the prosecutor usually has available two methods of doing so. First, he may always prove the requisite intent by direct or circumstantial evidence. In addition, most insufficient funds statutes contain a section providing for prima facie proof of intent to defraud.
“Prima facie evidence sections usually operate against only the maker or drawer.
“The acts that must be proved in order to raise the inference usually are (1) the making or drawing of the instrument by the defendant and (2) the refusal of payment by the drawee bank. . . . ” Insufficient Funds Checks in the Criminal Area: Elements, Issues, and Proposals, 38 Mo.Law Review 432, 437, 438 (1973).

As we read Section 9, it is a legislatively created aid to the prosecution in proving the requisite elements of intent to defraud; or knowledge on the part of the drawer, either that there were or might be at presentment insufficient funds to cover the check; or that the drawer had knowledge at the time of the drawing of the check that the drawer had no account in the drawee bank. A showing at the trial that the check had been presented, and that payment had been refused for either of the statutory reasons, is prima facie evidence of the drawer’s intent to defraud with knowledge of such deficiency. This section does not conflict with Sections 1 or 5, the latter clearly stating that the offense is committed when the check is drawn with intent to defraud or with knowledge, etc. Section 9 simply provides a method by which the prosecution can discharge its duty to show such intent and knowledge, provided, in the language of this section, . . such person [drawer] has not paid the holder of the check the amount due thereon within ten (10) days after receiving notice that payment of such check was refused by the depository. . . .”

For reasons which will be addressed shortly, this section has no operation in the case before us.

The petitioner argues that Section 9 leaves criminal liability to the discretion of a third party (the bank) and thereby denies due process and equal protection to the drawer, citing People v. Vinnola, 177 Colo. 405, 494 P.2d 826 (1972). In that case, the Supreme Court of Colorado, in holding that the Colorado bad check statute was unconstitutional, referred to the prima facie section and determined that . . Criminal liability and punishments should not be predicated upon a third party’s unfettered discretion.” (494 P.2d at 831) We agree with this general statement, but do not agree that the prima facie section creates a presumption of guilt; but, in appropriate cases, simply provides that the state has discharged its burden of showing intent to defraud and knowledge on the part of the drawer, thereby shifting the burden of proof as to these elements to the drawer. See State v. Coleman, 17 Utah 2d 166, 406 P.2d 308 (1965). As we construe Section 9, it does not relieve the prosecution of the burden of proving the defendant’s guilt beyond a reasonale doubt and to a moral certainty. There seems to be a rational relationship between the facts proved, i. e., the drawing of the check, refusal of payment, failure after notice to subsequently pay the holder, and the prima facie presumption based upon such proven facts, i. e., intent to defraud and knowledge of insufficient funds. We think the relationship is sufficient to comply with constitutional standards. Leary v. United States, 395 U.S. 6, 36, 89 S.Ct. 1532, 23 L.Ed.2d 57 (1969).

In construing this principle in Goolsby v. State, 213 Ala. 351, 104 So. 901 (1925), the following was cited with approval:

“ ‘That a legislative presumption of one fact from evidence of another may not constitute a denial of due process of law or a denial of the equal protection of the law; it is only essential that there shall be some rational connection between the fact proved and the ultimate fact presumed, and that the inference of one fact from proof of another shall not be so unreasonable as to be a purely arbitrary mandate. So, also, it must not, under guise of regulating the presentation of evidence, operate to preclude the party from the right to present his defense to the main fact thus presumed. If a legislative provision not unreasonable in itself, prescribing a rule of evidence, in either criminal or civil cases, does not shut out from the party affected a reasonable opportunity to submit to the jury in his defense all of the facts bearing upon the issue, there is no ground for holding that due process of law has been denied him.’ — Mobile, J. & K. C. R. R. Co. v. Turnipseed, 219 U.S. 35, 31 S.Ct. 136, 55 L.Ed. 78, 80, 81, 32 L.R.A. (N.S.) 226, Ann.Cas.1912A, 463.” (213 Ala. at 355, 104 So. at 905)

In arguing that Section 9 invalidates the act, the petitioner relies on Gools-by, supra. This court held in Goolsby that a prima facie section, similar to the one in Act No. 2479, stripped the defendant of the “presumption of innocence.” However, at that time, the rules of evidence in this state precluded the defendant from testifying as to his uncommunicated motives, purpose, or intention. In Goolsby, the court observed that such testimony was not allowed under the statute for the purpose of rebutting the statutory presumption. That evidentiary rule no longer exists in Alabama. Starr v. Starr, 293 Ala. 204, 301 So.2d 78 (1974). Thus, a defendant is free to testify as to his intent and mental process to rebut any presumption arising from the prima facie section of the Worthless Check Act.

Petitioner next contends that the act is nothing more than a means whereby a criminal statute is used to enforce a civil debt, and therefore is violative of Article 1, Section 20, Constitution of 1901. Every state in the union, except Vermont, has a criminal statute dealing with bad checks. Many of these statutes have been challenged on the ground that they allow imprisonment for debt. See Annot. 23 A.L.R. 459 (1923). Most of them have survived the constitutional challenge. But we agree with the petitioner that if improperly employed to collect a civil debt, such would be an unconstitutional application of such statutes. We further agree that such statutes lend themselves to use by the unscrupulous who seek only payment of debts and have no interest in criminal prosecution other than as a means of collecting money allegedly due them. This court has repeatedly condemned the use of threat of prosecution as a means of collection of worthless checks. Goolsby, supra.

Additionally, this court has spoken with respect to the constitutional provision prohibiting imprisonment for debt, and recognized that this prohibition established a broad public policy “. . . inimical . to the incarceration of a debtor as a means of coercing payment . . .” Carr v. State, 106 Ala. 35, 38, 17 So. 350, 351 (1894). Some courts, also recognizing that such statutes can be improperly utilized, have specifically recognized that the innocent drawer who may be wrongfully prosecuted has a remedy of malicious prosecution against the payee. Kitchens v. Barlow, 250 Miss. 121, 164 So.2d 745 (1964).

The legislature recognized that such abuses could take place and provided in Section 13 that:

“Any person who has filed a complaint ... or who has furnished information . . . which has resulted in the acceptance by such district attorney or county solicitor of such a complaint . . . who shall suggest such case be dismissed without just cause or legal excuse shall be taxed with all costs accruing in the proceeding.”

We point out that such provision does not preclude a suit for malicious prosecution. Further, in upholding the constitutionality of the Worthless Check Act, we should not be misunderstood as sanctioning its use for debt-collecting purposes. In addition to subjecting himself to a suit for malicious prosecution, a party using this statute for debt-collecting purposes may be subject to liability for abuse of process. Hotel Supply Co. v. Reid, 16 Ala.App. 563, 80 So. 137 (1918).

Attorneys should also pay heed to the admonition contained in DR 7-105, Code of Professional Responsibility of the Alabama State Bar:

“A lawyer shall not present, participate in presenting, or threaten to present criminal charges solely to obtain an advantage in a civil matter.”

EC 7-21 of that Code states:

“The civil adjudicative process is primarily designed for the settlement of disputes between parties, while the criminal process is designed for the protection of society as a whole. Threatening to use, or using, the criminal process to coerce adjustment of private civil claims or controversies is a subversion of that process; further, the person against whom the criminal process is so misused may be deterred from asserting his legal rights and thus the usefulness of the civil process in settling private disputes is impaired. As in all cases of abuse of judicial process, the improper use of criminal process tends to diminish public confidence in our legal system.”

We turn now to a consideration of the application of the Worthless Check Act to the facts of this case. As stated at the beginning of this opinion, Mr. Hogan came to Alabama in December, 1972. Mrs. Tolbert executed and delivered to him a note covering the amount of money she owed him, evidenced by several outstanding checks, including the October 9th, 1972, check which is the subject of this prosecution. At that time, the October 9th check had never been presented to the drawee bank for payment. Mr. Hogan accepted the note, but began this prosecution prior to the due date of the note. The evidence is without dispute that the note was taken in payment of the debt evidenced by the check. It is true that a negotiable instrument, to be negotiable, must be payable in money. Code of Alabama, Title 7A, § 3-104(1)(b). This does not preclude, however, payment in anything of value if the parties so agree. Therefore, in December, 1972, the petitioner made good the check, before it was presented for payment, by executing a note and delivering it to the payee of the check. Concededly, the note covered the amount of the check.

Under the provisions of Section 9, the drawer of a check can escape the evidentiary presumption of intent to defraud by making good a bad check within ten days after notice of its dishonor. Surely payment before dishonor should have the same effect. Here, Mrs. Tolbert gave the payee of the check a note before the check was ever presented for payment. It would be incongruous indeed if one could avoid the implications of intent to defraud by making good a check after notice of dishonor, but not do so by making good the check prior to its dishonor. Clearly the legislature intended that this section was to relieve a drawer from the presumption of evil intent if payment were made on the check any time from the drawing of the check up to ten days after notice of its dishonor.

For this purpose, we perceive no difference between payment of the check and substitution of a note in its stead, where the note is accepted by the payee.

We emphasize that such payment does not destroy any criminality that may have existed if the check were drawn with intent to defraud, but merely prevents the prosecution from invoking the use of the prima facie section. The offense involved is theoretically complete when the check is drawn, with intent to defraud, the drawer knowing that there are insufficient funds to cover the same, or that the drawer has no account with the drawee, or that no such drawee exists. Thus, it is of no consequence if the drawer later pays the payee, or when he pays him, in so far as the crime itself is concerned. The payment has relevance only as it relates to the prima facie section. The trial court erred, therefore, in charging the jury that the bank’s refusal to pay the check, which was the subject of this prosecution, was prima facie evidence of the defendant’s intent to defraud the payee.

The judgment of the Court of Criminal Appeals is reversed and the cause is remanded to that court for the entry of a judgment in accordance with this opinion.

Reversed and remanded.

All the Justices concur except ALMON, J., not sitting.


text:
    Noah Earl TOLBERT v. STATE.
    6 Div. 781.
    Court of Criminal Appeals of Alabama.
    Oct. 1, 1975.
   After remand from Supreme Court: Reversed and remanded on authority of SC Ms. 1136, dated September 4, 1975, 294 Ala. 738, 321 So.2d 227.


author: CATES, Presiding Judge.

text:
    Thomas William YELTON, alias v. STATE.
    3 Div. 306.
    Court of Criminal Appeals of Alabama.
    May 6, 1975.
    Rehearing Denied June 17, 1975.
    Benjamin E. Pool, Montgomery, for appellant.

      William J. Baxley, Atty. Gen., and David W. Clark, Asst. Atty. Gen., for the State.
   CATES, Presiding Judge.

Burglary, first degree: sentence, ten years imprisonment.

The indictment in pertinent part charged that Yelton “did, in the nighttime, with intent to murder, break into and enter the inhabited dwelling house owned by Phillip Henderson, located at 130 Hillcrest Drive, Greenville, Butler County, Alabama, which was occupied by Phillip Henderson, a person lodged therein against the peace and dignity of the State of Alabama.”

In Yelton v. State, 3 Div. 166 and 3 Div. 231, Yelton was twice convicted of murder in the second degree in the death of Phillip Henderson. Yelton v. State, 50 Ala.App. 168, 277 So.2d 912 and 55 Ala.App. 491, 317 So.2d 329, now on petition for certiorari in the Supreme Court of Alabama.

Code 1940, T. 15, § 287, provides as follows :

“Any act or omission declared criminal and punishable in different ways by different provisions of law, shall be punished only under one of such provisions, and a conviction or acquittal under any one shall bar a prosecution for the same act or omission under any other provision.”

In Wildman v. State, 42 Ala.App. 357, 165 So.2d 396, we followed the California practice of affirming a conviction of the second (or third, et seq.) of inseparable acts constituting multiple offenses. However, we remanded for setting aside the sentence for the shorter of two terms of imprisonment. We quoted extensively from People v. McFarland, 58 Cal.2d 748, 26 Cal.Rptr. 473, 376 P.2d 449. We refer thereto in the interest of brevity.

Unlike Lawson v. State, 33 Ala.App. 333, 33 So.2d 405 and Wildman, supra, both of Yelton’s convictions are under statutes requiring jury-fixed sentences. In such cases the proper procedure is to set aside the lesser term when the greater has become final. Thus, if the first judgment of conviction were to be reversed on appeal or rendered by virtue of a post conviction proceeding such as coram nobis or Federal ha-beas corpus, then automatically the sentence in the second conviction would become operative with credit for the time served on the aborted first sentence. See Goolsby v. State, 283 Ala. 269, 215 So.2d 602.

Since 1935 burglary in the first degree has been a capital felony. Code 1940, T. 14, § 85, sets out the elements as: (1) in the nighttime; (2) with intent to steal or commit a felony; (3) breaking into and entering ; (4) any inhabited dwelling house, etc., and occupied by a person lodged therein. Simmons v. State, 40 Ala.App. 98, 108 So.2d 184; c. f., Cleveland v. State, 53 Ala.App. 734, 304 So.2d 237. The punishment ranges from ten years and upwards, or death at the discretion of the jury. For murder in the first degree since Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346, life imprisonment is the only operative punishment; for second degree murder it is “not less than ten years, at the discretion of the jury.”

Intent is the gravamen of the offense. The intended act need not be carried out. Hamilton v. State, 270 Ala. 184, 116 So.2d 906.

Here the same proof that showed ex post facto Yelton’s intent to commit the felony of murder on the breaking and entering was the same that proved the perpetration of the homicide for which Yelton was initially convicted. We consider § 287 to be controlling.

People v. McFarland, supra, says:

“With respect to the procedure to be followed on appeal where double punishment has been erroneously imposed, it should be stressed that section 654 proscribes double punishment, not double conviction-, conduct giving rise to more than one offense within the meaning of the statute may result in initial conviction of both crimes, only one of which, the more serious offense, may be punished. (People v. Chessman, 52 Cal.2d 467, 497, 341 P.2d 679.) The appropriate procedure, therefore, is to eliminate the effect of the judgment as to the lesser offense insofar as the penalty alone is concerned. * * * ” (Italics added.)

New York (Penal Law, McKinney’s Con-sol.Laws, c. 40, § 70.25 [2]) differs in that it allows concurrent punishments, while California allows only one punishment, but both states allow both convictions to stand.

In both McFarland, supra, and Wildman, supra, there was but one trial resulting in two convictions. Wildman followed McFarland in remanding for punishment under one or the other convictions, allowing both convictions to stand. New York would have remanded for concurrent sentencing.

Section 287, supra, concludes;

“ * * * [A] conviction or acquittal under any one shall bar a prosecution for the same act or omission under any other provision.” (Brackets added.)

Had there been but one trial resulting in two convictions, Wildman would allow both convictions to stand, but require punishment to be administered under only one of the convictions. But here the prior conviction of murder, when final, would bar the later prosecution for burglary. However, since the murder conviction is still under appellate review, the cause is remanded for appropriate action when the other cause is terminated.

Reversed and remanded.

TYSON and BOOKOUT, JJ., concur.

HARRIS and DeCARLO, JJ., concur in result.

ON REHEARING

The Attorney General, in his application for rehearing, appears to place a great reliance on Gordon v. State, 71 Ala. 315.

There is language in that opinion that says, where burglary is charged with larceny as a constituent element, there may be a conviction of either burglary or larceny; or, there may be a general conviction, though but one punishment may be imposed.

It would appear that the Gordon opinion was handed down by the Supreme Court on May 21, 1883.

Regardless of whatever effect Gordon might have, aside from Code 1940, T. 15, § 287, it must be clear that in adopting the 1923 Code, whence comes said § 287, that the Legislature being aware of Gordon, necessarily modified it pro tanto where there is any conflict between the Gordon doctrine and the later adopted § 287.

It is apodictic that a statute adopted after a decision of a court must control for cases after the date of adoption.

Thus, if Gordon is not in harmony with what we wrote on original deliverance, nevertheless, § 287 is the paramount and controlling law of Alabama.

We consider first degree murder is a felony (of course). It can be a felony within the meaning of T. 14, § 85 of the Code, which defines first degree burglary. Accordingly, if the proof to show the burglary necessarily embraces proof of first degree murder, then § 287, supra, has a field of operation.

Accordingly, the application is overruled.

Opinion extended; application overruled.

All the Judges concur.

      . Collateral estoppel within the scope of Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469, would seem to apply only where there has been an earlier acquittal. Duke v. State, 48 Ala.App. 188, 263 So.2d 165 (on special remand) reversed 288 Ala. 544, 263 So.2d 176; United States v. Nash, 4 Cir., 447 F.2d 1382; see Comment, Ashe v. Swenson: Collateral Estoppel, Double Jeopardy, and Inconsistent Verdicts, 71 Columbia L. Rev. 321-325 (Feb.1971) ; 74 Harvard L. Rev. 1, 40 (1960) ; Lugar, Criminal Law, Double Jeopardy, and Res Judicata, 39 Iowa L.Rev. 317, 318 (1954) ; Note, Twice in Jeopardy, 75 Yale L.J. 262, 284 (1965) ; Comment, Double Jeopardy and Collateral Estoppel in Crimes Arising from the Same Transaction, 24 Mo.L.Rev. 513, 523 (1959) ; McLaren, Res Judicata as Applied to Criminal Cases, 10 Wash.L.Rev. 198 (1935).


text:
    In re Thomas William YELTON v. STATE of Alabama. Ex parte STATE of Alabama ex rel. ATTORNEY GENERAL.
    SC 1351.
    Supreme Court of Alabama.
    Sept. 25, 1975.
    Rehearing Denied Nov. 6, 1975.
    William J. Baxley, Atty. Gen., and David W. Clark, Asst. Atty. Gen., for petitioner, the State.
    No appearance for respondent.
   SHORES, Justice.

The denial of writ in this case shall not be construed to mean that this court approves or disapproves all of the statements contained in the opinion of the Court of Criminal Appeals, 56 Ala.App. -, 321 So.2d 234.

Writ denied.

HEFLIN, C. J., and MERRILL, MADDOX and JONES, J J., concur.


author: DeCARLO, Judge.

text:
    Jesse Ray CLEMMONS v. STATE.
    3 Div. 272.
    Court of Criminal Appeals of Alabama.
    Oct. 1, 1974.
    Rehearing Denied Oct. 29, 1974.

      H. Edward McFerrin, Greenville, for appellant.
    William J. Baxley, Atty. Gen., and John M. Gruenewald, Asst. Atty Gen., for the State.
   DeCARLO, Judge.

Appellant, Jesse Ray Clemmons, was indicted by the grand jury of Butler County, Alabama, on May 9, 1973, for first degree murder. He was found guilty of second degree murder and sentenced to thirty years in the penitentiary.

In our review of the record, we found that Jesse Ray Clemmons, at the time of trial, was twenty years of age and at no time before or during the trial was he ever apprised of the fact that he had the right to request to be considered as a youthful offender.

Under Morgan v. State, 291 Ala. 764, 287 So.2d 914, we must remand this cause to the circuit court to investigate and examine the appellant at a hearing and determine whether in its discretion appellant should be tried as a youthful offender. Title 15, § 266(1), Code of Alabama.

The trial court is further instructed that the hearing be held speedily, and that a full record be made together with the court’s determination. A transcript fof these proceedings, under the seal of the Clerk, will then be forwarded to this court for review. Seibold v. State, 287 Ala. 549, 253 So.2d 302.

Remanded with directions.

All the Judges concur.