author: BRADLEY, Judge.

text:
    Marjorie Furr WEST v. James D. WEST.
    Civ. 514.
    Court of Civil Appeals of Alabama.
    Dec. 10, 1975.
    Rehearing Denied Jan. 28, 1976.

      McDermott & Deas, Mobile, for appellant.
    Inge, McMillan & Inge, Mobile, for ap-pellee.
   BRADLEY, Judge.

This is an appeal by plaintiff from an order enforcing a property disposition in favor of defendant contained in a decree of divorce. Plaintiff contends that the trial court was without jurisdiction to entertain defendant’s cross-motion requesting the order, because it was not filed within the time limits imposed by Rule 60, Alabama Rules of Civil Procedure. We affirm the trial court.

Plaintiff initiated an action for separate maintenance in the Circuit Court of Mobile County on April 4, 1973. Defendant filed an answer and cross-bill seeking an absolute divorce. Trial was held on August 7, 1973. The evidence consisted of testimony ore tenus and documentary exhibits. On November 1, 1973 the decree of divorce was issued. Paragraph 8 of the decree contained the dispositive provision which is now in question. It read:

“8. That the Court awards each of the parties their respective interest in and to all other real property in their sole names or owned jointly with other parties and further awards each of the respective parties hereto any and all interest that they may have in and to any property inherited from their respective families, or any interest they may have in and to any existing estates of their respective families.”

On March 14, 1974 plaintiff filed a motion before the same judge asking that defendant be ordered to pay certain back income taxes and also college expenses of one of the minor children, as various provisions of the divorce decree required. On June 12, 1974 defendant filed an answer and cross-motion seeking enforcement of paragraph 8 as it applied to a parcel of shopping center property at 2330 University Avenue, Tuscaloosa, and requesting the court to order that plaintiff convey to defendant all of her rights, title, and interest in the parcel. Plaintiff answered that paragraph 8 was not applicable to the shopping center property. It is apparent from the face of the decree that no other provision of the decree concerns this piece of property.

On October 4, 1974 the trial court issued an order requiring plaintiff to “carry out the terms of paragraph Eight of the divorce decree dated November 1, 1973, and to convey to the Defendant,” all of her interest in the shopping center property. Plaintiff appeals from this order.

The court entered its order after a peculiar evidentiary development. The motion and cross-motion were heard on June 21, 1974. At the hearing, a deed was introduced which showed that the property had been conveyed by C. D. West and Abbie A. West, defendant’s parents, to Bruce H. West, defendant’s brother, and his wife, and to defendant and plaintiff as husband and wife. The deed was dated December 30, 1968, a date on which defendant’s parents were both living. This deed clearly evidenced the fact that plaintiff and defendant had both acquired a partial interest in the shopping center as a result of an inter vivos conveyance from defendant’s father and mother. The validity of the deed is undisputed.

The deed refutes evidence introduced at the trial on the merits of the divorce in August 1973. At that time the thrust of the evidence on the question of ownership of the Tuscaloosa property was to the effect that defendant and his brother, Bruce H. West, owned all of the interest in this tract jointly, and that the interests had been acquired by inheritance. This evidence included testimony by defendant that the property was acquired by inheritance and defendant’s financial statement, Exhibit “A”, which showed ownership of the property held jointly by his brother and himself. In addition, the record of that trial shows the following testimony by plaintiff on cross-examination:

“Q. And he owns property in Tuscaloosa ?
“A. Who?
“Q. Your husband.
“A. Yes.
“Q. This is family property that he inherited ?
“A. Mr. Friedlander, I suppose that it is. . . .”

At no point in the divorce trial was the deed of December 30, 1968 specifically alluded to, nor did any evidence refute the inference that Bruce H. West and defendant were joint owners by virtue of inheritance of the property. There is no evidence that either party knew of the deed’s existence at the time of the divorce trial.

Two facts stand out from the record of the entire proceedings below. First, the trial court rendered its judgment of divorce under the impression that the shopping center property had been acquired by defendant and his brother by inheritance from defendant’s family. Second, that this impression proved incorrect because the property was actually owned jointly by four individuals, including plaintiff and defendant, and had been acquired by inter vi-vos deed. This unusual state of the facts underlies plaintiff’s appeal.

Plaintiff’s entire argument depends upon characterizing the October 4 order as a modification of the original divorce decree, and contending that the order is void because it was requested within neither the 30-day period of Equity Rule 62, Kelley v. Kelley, 63 Ala.App. 608, 303 So.2d 108, nor the four-month period of Alabama Rules of Civil Procedure 60(b)(1), (2) and (3). It is obvious from the record that defendant’s cross-motion met none of these time limits. We find, however, that the order of October 4 and the cross-motion requesting it are a means of obtaining enforcement, rather than modification, of the decree rendered by the court in favor of defendant in the original cause, and they rest upon the inherent power of an equity court to effectuate its own decrees, Ark-Ala Lumber Co. v. Powell, 213 Ala. 591, 105 So. 588. It would be improper to characterize the cross-motion as a request for relief from judgment under Rule 60, ARCP.

Whether or not a particular piece of property is specifically subject to a dis-positive provision in a divorce decree must be determined by reading the terms of the decree with a view to the evidence concerning the property presented in the case, Johnson v. Harrison, 272 Ala. 210, 130 So. 2d 35. The record of the August 1973 hearing reveals that the evidence introduced there compelled the conclusion that the shopping center was jointly owned by defendant and his brother, and had been inherited from defendant’s family. There was not even a scintilla of evidence otherwise. Thus, we cannot escape holding that paragraph 8, which was drafted on the basis of that evidence, referred to the shopping center property and directed that this property be awarded to defendant. The original divorce decree was a valid, enforceable order of the circuit court. It was plaintiff’s duty to comply with this order. The burden also rested on plaintiff rather than defendant, to use the established procedures found in ARCP 60 to set aside portions of the order she deemed unjust. In any such efforts, plaintiff had the responsibility for showing factual errors justifying change and for meeting all time limits. It was not defendant’s burden to continuously prove the truth of the facts on which the decree was based.

Plaintiff chose not to avail herself of the established channels of judicial modification. Instead, she merely refused to make the necessary conveyances to defendant, relying on her own assertion that, as she interpreted the decree, paragraph 8 did not require her to give up the piece of property.

Plaintiff’s intransigence clearly became an obstacle to the effectuation of the trial court’s November 1, 1973 decree. The supplemental order of the court specifying the conveyance required of plaintiff was an appropriate enforcement device, Sollie v. Outlaw, 204 Ala. 522, 86 So. 380. The supplemental order was consistent with the original decree, as it must be, Lang v. Brown, 21 Ala. 179. The power of the court to render an enforcement order in these circumstances is well recognized, Griffin v. Spence, 69 Ala. 393.

There being no error below, the order of the trial court is affirmed.

Affirmed.

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

ON REHEARING

On December 29, 1975 appellant filed with this court a petition for rehearing. The ground relied on in the petition is that, according to appellant, the short passage of testimony quoted in our main opinion was (1) taken out of context and (2) did not concern the parcel of property in dispute. Appellant requests that this court set out in its opinion on rehearing an amplified rendition of the quote from the trial record.

To meet appellant’s request, the following quotation from the record is made:

“Q. And all the real estate he had in Mobile was in your joint names?
“A. As far as I know.
“Q. And all of this went into the joint finances ?
“A. That’s right.
“Q. And Mr. West’s parents died fairly recently ?
“A. Mr. West died two years ago and Mrs. West died eight years ago.
“Q. And Mr. West inherited various items from them ?
“A. Yes, I guess he did.
“Q. As far as you know, any real estate he may have inherited was in his name only ?
“A. I don’t know.
“Q. As far you know, none of it is in your name ?
“A. I really don’t know.
“Q. But there were other assets that came into the family from them, personal property, cash, and so forth, was there not?
“A. I don’t know.
“Q. Now, do you know how much your husband made last year in terms of dollars and cents ?
“A. No sir, I surely do not.
“Q. Did you sign income tax returns ?
“A. Yes.
“Q. And you didn’t look at it at the time you signed it ?
“A. I wouldn’t know what it said if I looked at it. I have never filled one out. All I do is sign where it tells you to.
(R 50)
“Q. You and he didn’t discuss the possibility of moving to Tuscaloosa ?
“A. No.
“Q. Is it not a fact that you told him in no uncertain terms that I’m through and that you would not move to Tuscaloosa ?
“A. That is not true.
“Q. Now, his parents were from Tuscaloosa, weren’t they ?
“A. That’s correct.
“Q. He has a brother in business there ?
“A. Yes.
“Q. And he owns property in Tuscaloosa ?
“A. Who?
“Q. Your husband.
“A. Yes.
“Q. This is family property that he inherited ?
A. Mr. Friedlander, I suppose that it is. I don’t know anything about what he owns. The only thing I know about is I signed something with Mr. West on some property in Tuscaloosa for a shopping center. I had to sign my name on something about a shopping center in Tuscaloosa.”
(R 51, 52)

The expanded quotation is somewhat lengthier than what was requested by appellant. The additional inclusions are made to obviate any further possible misunderstanding as to the scope of the testimony relating to the property in question. Furthermore, to allay any question as to the scope of this court’s review on original submission, we wish to say that we read and considered the entire record before our main opinion was rendered; and, the inclusion of the lengthened quotation is not to be construed as a reconsideration of any aspect of that opinion: rather it is to be taken as a sincere effort on the part of this court to accurately and adequately set out the facts on which this court based its decision.

Appellant’s second contention is that the passage does not refer to the disputed parcel. We cannot agree. We are convinced that the quoted passage of testimony referred to the disputed tract and suggest that appellant was so convinced on original submission, for his brief filed here on July 31, 1975 at page eight unequivocally states that the passage refers “to the Tuscaloosa property in question (shopping center).”

Opinion extended; application for rehearing overruled.

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


source: Caselaw Access Project

author: JONES, Justice.

license: Public Domain

text:
    In re Marjorie Furr WEST v. James D. WEST. Ex parte Marjorie Furr West.
    SC 1691.
    Supreme Court of Alabama.
    March 19, 1976.
    McDermott & Deas, Mobile, for petitioner.
   JONES, Justice.

Petition of Marjorie Furr West for Cer-tiorari to the Court of Civil Appeals to review and revise the judgment and decision of that Court in West v. West, 57 Ala.App. -, 328 So.2d 583.

WRIT DENIED.

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


text:
    Doris Nell HAMAKER v. George M. HAMAKER.
    Civ. 600.
    Court of Civil Appeals of Alabama.
    Dec. 31, 1975.
    Rehearing Denied Feb. 4, 1976.

      Lipscomb & Lipscomb, Bessemer, for appellant.
    Jackie McDougal, Bessemer, for appel-lee.
   BRADLEY, Judge.

This is an appeal from an order of the trial court rendered on a petition to modify a divorce decree.

The parties to this proceeding were divorced by order of the Circuit Court of Jefferson County, Bessemer Division, on September 29, 1969. Appellant-wife was awarded custody of the two minor children with reasonable visitation rights for appel-lee-father. The father was ordered to pay $100 per month child support. The parties’ personal property and jointly owned real property was disposed of in the following fashion:

“4. That the complainant [wife] is awarded the use and occupancy of the real estate and residence owned by the parties hereto, and the household furniture and effects therein, and now located at Route One, Box 119, Adger, Alabama until further orders of the court.’’ [Emphasis added.]

Subsequently the parties filed motions and pleadings in the following sequence: appellee filed a petition to modify on December IS, 1970; appellant filed an answer to that petition. Appellee then requested permission for resubmission, so that additional testimony might be taken; there was an answer to this request. Appellee then filed an amendment to the petition for modification, and appellant moved to strike all of appellee’s petitions and motions. Appellant also pétitioned for injunctive relief against Certain alleged behavior on ap-pellee’s part. Appellee next filed another amendment and another motion for resubmission. On November 22, 1972 appellant filed a petition seeking a sale for division of the jointly owned lands, which included the house that had served as the family residence, located on a three and one-half acre parcel at Route 1, Box 119, Adger, Alabama.

A hearing on all of these pleadings was held on November 27, 1972. The evidence at that hearing shows that, at the time of the divorce in 1969, the parties had two minor children, a girl and a boy. That daughter is now nineteen years old, married, and living away from home. The son is now fourteen years of age and has expressed a desire to live with his father. The boy has also told the court that he would like to live in the former family residence because of its size. Since August 2, 1972 the child had been living with his father at his grandmother’s house. This latter house is small, having only three rooms. At the time of the modification hearing the father had been laid off from work because of heart trouble. He was drawing $240 a month Social Security and $143 a month from a pension. The fourteen year old son was receiving $120 from Social Security, but this was being paid to appellant, who stated that she used a portion of it to buy the boy clothes and for his lunch money; the remainder was placed in the bank for him. The evidence also showed that at the time of the hearing, appellant had remarried, and that her second husband supported her adequately. At the hearing, appellant stipulated that appellee should have custody of the son.

The final decree, issued on December 14, 1972, awarded custody of the son to appel-lee, and required appellant to give to appel-lee all funds that she still held as a result of the boy’s Social Security payments. It further ordered that appellant’s interest in the jointly owned real estate be divested from her and awarded to appellee upon his payment to her of $1,200. Appellee was awarded the household furniture and fixtures remaining in the house. Appellant filed a motion for rehearing which was denied on November 25, 1974. This appeal is from the decree of modification and the denial of application for rehearing.

Appellant’s seventeen assignments of error raise essentially four contentions for reversal: (1) the trial court erred in divesting appellant of her undivided one-half interest in the jointly owned real estate; (2) there was no evidence to support the award of only $1,200 as compensation for appellant’s interest in the real estate; (3) the award of all the furniture and fixtures to appellee was error; and (4) the denial of appellant’s application for rehearing was erroneous.

We will first consider appellant’s contention that the trial court erred in denying the application for rehearing. Appellee replies that, under the old Equity Rules, the trial court’s denial of rehearing was not an appealable order. We agree.

The final decree deciding the request for modification of the original divorce proceedings was entered on December 14, 1972; the application for rehearing was filed on January 15, 1973. The trial court conducted a hearing and took the rehearing application under submission on March 2, 1973. The order denying the application was rendered on November 25, 1974, some twenty-one (21) months later. The Rules of Civil Procedure became effective on July 3, 1973.

Under Equity Rule 62, an order denying an application for rehearing in an equity case which did not modify the original decree could not be reviewed on appeal, Whiteport v. Whiteport, 283 Ala. 704, 220 So.2d 891/ This equity rule, along with the other equity rules, was superceded by the Alabama Rules of Civil Procedure. What was formerly an application for rehearing is now considered as a motion for new trial and will be reviewed on appeal, Rule 59, ARCP.

Appellant argues, in essence, that the ruling on the rehearing application is governed by the Alabama Rules of Civil Procedure and cites us to Wilhoite v. Nelson, 294 Ala. 523, 319 So.2d 265.

The supreme court in the cited case applied the Alabama Rules of Civil Procedure because the original action and the motion for new trial were filed after the effective date of the Rules, July 3, 1973, and were ruled on after that date.

We do not consider Wilhoite to be apt authority in the present proceeding. The original action here was filed in 1969; the application for rehearing was filed on January 15, 1973; the matter was heard and taken under submission on March 2, 1973; all events occurring prior to July 3, 1973, the effective date of the Alabama Rules of Civil Procedure. However, we do consider Premier Industrial Corp. v. Marlow, 292 Ala. 407, 295 So.2d 396, cert. den. 419 U.S. 1033, 95 S.Ct. 515, 42 L.Ed. 2d 308, to be decisive authority that the trial court’s order denying the rehearing application is not reviewable here. In Premier Industrial an amended complaint and demurrers thereto had been filed and submitted to the trial court prior to July 3, 1973. A contention was raised that the ruling, which came after July 3, 1973, should be governed by the Alabama Rules of Procedure, which abolished demurrers. The supreme court, pointing out that Rule 86, ARCP provides that the Rules shall “ . . . govern all proceedings in actions brought after they take effect . ,” held that the Alabama Rules of Civil Procedure did not apply. The demurrers had been filed, argued, and submitted to the court prior to the effective date of the Rules. Nothing remained to be done but to rule on the demurrers. The supreme court also noted that no request had been made to have the trial court apply the new Alabama Rules of Civil Procedure.

In the present case the application for rehearing was similarly filed, argued and submitted to the trial court before July 3, 1973; furthermore, there was no request of the trial judge that he apply the Alabama Rules of Civil Procedure. We therefore conclude that the Equity Rule and not the Alabama Rules of Civil Procedure provision governs. The denial of application for rehearing is not reviewable on this appeal.

Next, appellant claims that granting ap-pellee all of the household furniture and fixtures, without compensation to her, was error. It is her argument that the effect of this award is to require her to pay alimony to her former husband, contrary to law. We find no merit in this argument.

To award the husband the use of property as a home for the child is indeed alimony to the extent that the wife’s interest is contributed towards the maintenance and support of the husband, Davis v. Davis, 279 Ala. 643, 189 So.2d 158. However, the Davis case has explicitly been held inapplicable to a permanent division of jointly owned property, Baggett v. Baggett, 47 Ala.App. 539, 258 So.2d 735. The instant award is clearly a property division, not an interlocutory award of support.

The division of property in a divorce case does not have to be an equal one, but only one which is graduated according to the nature of the case, Reid v. Reid, 53 Ala.App. 189, 298 So.2d 611; Hicks v. Hicks, 52 Ala.App. 586, 296 So.2d 180. A decree dividing the property of the parties is a matter addressed to the discretion of the trial court, subject only to review for abuse, Allen v. Allen, 49 Ala.App. 200, 269 So.2d 914. The only question properly before us is whether or not the trial court abused its discretion in awarding the personal property to the husband.

These principles of law must be read in conjunction with the ore tenus rule, which requires us to affirm the trial court unless its findings are plainly and palpably erroneous, Reid v. Reid, supra.

There is very little testimony in the record regarding the furniture and fixtures. There is no evidence that the wife brought any of this personal property into the marriage from her separate estate. Construed most favorably to the wife, the evidence shows that the furniture and fixtures were obtained through the joint efforts of the parties during marriage.

The factors to be considered in determining the property settlement include the earning capacity and future prospects of the parties, their ages, sex, health and station in life, how long they were married, whether there are children to support, and the conduct of the parties with reference to the cause of the divorce, Tyler v. Tyler, 52 Ala.App. 430, 293 So.2d 856. Considering that the wife has remarried, is adequately provided for by her present husband, and has voluntarily agreed to relinquish her responsibility for raising the minor child to appellee, who is notably handicapped in his health and ability to earn, we do not find palpable error in the trial court’s disposition of the furniture and fixtures.

Appellant’s third major contention is that she has been improperly divested of her real property. To support this contention, she argues that the trial court had no authority to modify the original decree so as to invest title to real property in appel-lee on a petition for modification, and cites our case of Holsombeck v. Pate, 47 Ala. App. 39, 249 So.2d 861. In the cited case some jointly owned property was not mentioned in an original divorce decree, but was mentioned initially in a petition to modify containing a request to divest the former wife of her interest in real estate upon payment of a certain sum by the former husband. We held in Holsombeck that the trial court had no authority to grant the relief asked for in the modification petition because (1) the jurisdiction of the trial court to divide the parties’ jointly owned property was not invoked in the original divorce proceedings; and (2) the trial court’s jurisdiction was not invoked to use the property as a source of support and maintenance for minor children. See Haney v. Haney, 50 Ala.App. 79, 277 So.2d 356.

In the present case the trial court’s final decree in the divorce proceedings allowed the former wife to occupy and use the jointly owned real property until such time as the trial court would order other disposition. This retention of jurisdiction leads us to believe that allowing the wife to use the property was purely a temporary measure and that a future permanent disposition was clearly envisioned. We therefore consider that Hol-sombeck does not preclude the trial court from ordering appellant to transfer her interest in the real property to appellee.

Furthermore, the trial court in the instant case awarded to appellee custody of the fourteen year old son after it was made known that the appellant had no objections and that the child had evidenced a desire to live with his father in the homeplace. Placing the full title to the home property in appellee would permit the father and son to live in the house. We believe that the trial court properly viewed the property as a “ . . . source of support and maintenance for minor children, . . . . ” See Holsombeck v. Pate, supra; also see Tucker v. Tucker, 280 Ala. 608, 196 So.2d 724. Two cases relied on by appellant — Summerlin v. Bowden, 286 Ala. 391, 240 So.2d 356 and DuBoise v. DuBoise, 275 Ala. 220, 153 So.2d 778 — had dissimilar factual situations and would not be apt authority to support appellant’s argument.

We therefore conclude that the trial court, in the original divorce decree, took jurisdiction of the real property but did not make a final disposition of it as had been done in DuBoise v. DuBoise, supra; instead, the court merely permitted the ex-wife to use the property until a final disposition could be made. The final disposition occurred in the order entered on the modification petition. We find no error here.

Appellant next argues that the court erred in awarding her only $1,200 for her one-half interest in the property when the record is devoid of any evidence as to the value of the real estate.

Prior to the hearing on the application for rehearing, neither appellant nor the appellee introduced evidence as to the value of the real estate owned by the parties or the value of appellant’s interest therein. There was some evidence presented to the court at that hearing as to value of the premises. However, this occurred after the rendition of the decree which is the subject of this appeal. At the time of the decree appealed from, there was no evidence in the record as to the value of the real estate, and nothing in the record suggests that the trial court heard evidence outside the record on the subject of valuation.

There being no evidence to support the court’s decree as to the value of appellant’s interest in the jointly owned real estate, it is in error. Baggett v. Baggett, supra. This aspect of the trial court’s decree will be reversed and the cause remanded for the purpose of ascertaining the value of appellant’s interest in the real property located at Route 1, Box 119, Adger, Alabama and owned by the parties at the time of the decree appealed from.

Affirmed in part; reversed in part and remanded with directions.

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

ON REHEARING

Appellee filed an application for rehearing on the issue of the $1,200 valuation assigned appellant’s interest in the real property by the trial court. Finding no evidence in the record to support that amount, we reversed in part and remanded for further inquiry into the value of the realty. Appellee asks us to reconsider this aspect of our opinion.

A careful re-examination of the entire record confirms that it shows no evidence as to valuation before the trial court at any time up to the entry of the decree appealed from. However, appellee insists that the pleadings, motions and testimony which are in the record allow an inference that the trial court heard valuation testimony which was not taken down, transcribed, or placed in the record. This, according to appellee, insulates from reversal the trial court’s decree, Williams v. Clark, 263 Ala. 228, 82 So.2d 295.

The record does show that numerous pleadings and motions were filed by the parties over a period of several years prior to the appealed from decree. The record also suggests that hearings on these motions were held on January 26, 1971, and October 7, 1971. The nature of these hearings, with particular reference to whether or not any valuation evidence was taken, is not set forth in the record with any degree of definition. Rather, the very fact that evidence was even taken at the hearings is left to conjecture. In fact, the issues raised by the motions before the court at those hearings do not seem to require evidence of valuation.

This does not constitute an affirmative appearance from the record that there was before the trial court unrecorded evidence that might have influenced its decision on valuation. Therefore, under Fretwell v. Fretwell, 282 Ala. 377, 211 So.2d 795, appeal after remand 283 Ala. 424, 218 So.2d 138, this case does not come under the principle on which appellee relies.

Opinion extended.

Application for rehearing overruled.

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


author: MERRILL, Justice.

text:
    In re Doris Nell HAMAKER v. George M. HAMAKER. Ex parte George M. HAMAKER.
    SC 1700.
    Supreme Court of Alabama.
    March 19, 1976.
    Jackie McDougal, Bessemer, for petitioner.
    None for respondent.
   MERRILL, Justice.

Petition of George M. Hamaker for Cer-tiorari to the Court of Civil Appeals to review and revise the judgment and decision of that Court in Hamaker v. Hamaker, 57 Ala.App.-, 328 So.2d 588.

WRIT DENIED.

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


author: WRIGHT, Presiding Judge.

text:
    McCURDY CONCRETE, INC., an Alabama Corporation. v. L. MILLER & SON, INC., an Alabama Corporation.
    Civ. 616.
    Court of Civil Appeals of Alabama.
    March 19, 1976.

      Cloud, Berry, Abies, Blanton & Tatum and James T. Baxter, III, Huntsville, for appellant.
    Clellon K. Baeder, Huntsville, for ap-pellee.
   WRIGHT, Presiding Judge.

Defendant appeals from a verdict and judgment in favor of plaintiff. We affirm.

Among other ventures, plaintiff is in the business of selling and distributing oxygen and other gases. The gas is contained in reusable cylinders, which are loaned to customers. Customers are allowed 30 days’ use of the cylinders, after which time de-murrage is charged for each day the cylinders are retained.

For a number of years defendant and a companion company, McCurdy Mortar Company, Inc., operated similar businesses out of the same location. McCurdy Mortar later changed its name to McCurdy Concrete Co. of Nashville, Inc. According to plaintiff’s general manager and vice president, plaintiff sold gas in loaned cylinders to McCurdy Concrete and McCurdy Mortar, treating the organizations as one entity. Since 1968, McCurdy Concrete, Inc. had been billed monthly for rental of or de-murrage on gas cylinders. Such bills were paid by check of either McCurdy Concrete, Inc. or McCurdy Mortar Company, Inc.

At some time prior to March 22, 1972, plaintiff’s records showed that McCurdy Concrete, Inc. had 18 cylinders that had not been returned. When contacted, McCurdy returned two of them, but stated that it did not have any more. On March 22, 1972, plaintiff billed McCurdy for the 16 cylinders at their then market cost of $989.77. The bill further stated that until the cylinders were returned or paid for, demur-rage would continue to be assessed.

The cylinders were never returned, nor were they paid for. Plaintiff’s complaint contained two counts based on an open account, two counts for accounts stated, and one count for conversion of the cylinders. At trial, plaintiff introduced invoices, ledger sheets and records on each cylinder, tending to show that the tanks had been delivered to a McCurdy company, and that they had neither been 'returned nor had demurrage been paid on them since March 22, 1972.

Defendant objected to the introduction of these exhibits, contending that portions of them were irrelevant. The objection was based on part of the invoices being directed to McCurdy Mortar, and part to defendant. At the close of evidence, defendant renewed this objection by moving to exclude the exhibits. The court asked defense counsel if he was aware of the nature of plaintiff’s records and billing methods at pretrial. Counsel replied that he was and had intended all along to use the matter of billing and invoicing to another corporate entity as a defense. The court pointed out that an order for a pre-trial conference was issued, at which time the parties were told to be prepared to frame the issues and that defendant did not raise this aspect of its defense at pre-trial, but rather had stipulated that the business records of plaintiff were admissible, subject to objection as to relevancy. The court refused to exclude the evidence or to direct a verdict for defendant.

The parties have not argued on appeal the authority of the trial court to exclude the evidence because defendant did not raise at pre-trial the defense that another corporation owed the debt. The order for the pre-trial hearing directed the parties to come prepared to discuss the nature of the case, the theory of the parties, disputed facts and all points of law.

An examination of the exhibits objected to discloses that they contain billing invoices and delivery tickets duly signed for to both McCurdy Mortar Co., Inc. and Mc-Curdy Concrete, Inc., during the period from 1968 to March, 1972. Exhibit 3 is the ledger sheets of McCurdy Concrete, Inc. during those same years. That exhibit appears to include all charges billed or invoiced to the two corporations through the instruments contained in Exhibit 1. It also contains all credits for payments made by both corporations during the same years. There is testimony by plaintiff that no matter how deliveries or purchases were billed and receipted, it had always dealt with the two corporations as one. There was further evidence that monthly billings had been paid by checks from McCurdy Mortar and McCurdy Concrete or even another McCurdy company, McCurdy Transport Co. Defendant’s manager admitted payments on the one continuing account was made in such fashion. From the exhibits, the explanation by plaintiff and the testimony by defendant, the jury could reasonably infer that defendant McCurdy Concrete, Inc. was the real party to be charged.

It is our opinion that the exhibits were relevant in light of all the testimony. Evidence which tends to shed light on the main inquiry and does not inject foreign matter, may be admissible. Cherry v. Hill, 283 Ala. 74, 214 So.2d 427. The determination of relevancy is largely within the discretion of the trial court. State Farm Mutual Automobile Ins. Co. v. Humphres, 293 Ala. 413, 304 So.2d 573. We find no abuse of such discretion in this case. Independent Life & Accident Ins. Co. v. Maxwell, 53 Ala.App. 396, 301 So.2d 85.

Defendant’s fourth and fifth issues on appeal arise from the following exchange during plaintiff’s closing argument:

“Plaintiff’s Counsel: McCurdy Company is trying to get out of paying its bills with sneaky stuff.
“Defendant’s Counsel: We object to “sneaky stuff” and move for a mistrial.
“The Court: Ladies and gentlemen, counsel can draw conclusions and inferences and argue those to you. But what he says to what the evidence is is merely his conclusions as to what the evidence shows.
“The Court: Well I think it’s a fair inference from the evidence. Motion denied.
“Defendant’s Counsel: We except the Court’s stating that it is a fair inference from the evidence and again move for a mistrial.
“The Court: I did not mean to imply that counsel’s inference was an accurate one but I merely ruled that he has the right to argue what he considers fair inference from the evidence. Motion denied.”

Defendant argues that the statement by plaintiff’s counsel was prejudicial and that a mistrial should have been granted. However, liberal rules are allowed counsel in drawing inferences from the evidence. Mississippi Fire Ins. Co. v. Perdue, 217 Ala. 292, 116 So. 142. The reference to “sneaky stuff” was an inference from the evidence, which the trial court could within the exercise of its discretion allow. Southern Railway Co. v. Jarvis, 266 Ala. 440, 97 So. 2d 549. Further, the court moved to negate any prejudicial effect of the statement by cautioning the jury that counsel’s statement was merely his conclusion as to what the evidence was.

Defendant next objects to the court’s statement, “Well I think it’s a fair inference from the evidence. Motion Denied.” Defendant argues this was prejudicial and grounds for mistrial. We do not agree. The court was merely stating its grounds for overruling the first motion for mistrial. Further, the court clearly stated that its ruling was not meant to imply that counsel’s remark was accurate.

Finally, defendant argues that the trial court erred in refusing to give the following written charge:

“I charge you that if you find the defendant converted the property of the plaintiff, then you must assess damages as I define them for you for such conversion, but you may not return any damages for rent or demurrage, but rather the damage must be the value of the property at the time of the conversion, or at any time between that time and trial, with interest.”

Defendant says it would be inconsistent to allow a recovery in conversion, which results in a forced sale of the property to defendant, while also allowing plaintiff to recover rental for detention of the property after the date of the forced sale. In Smith v. Hooks, 19 Ala. 101, a suit for conversion of a slave, the Supreme Court dealt with a similar situation. There a judgment for conversion fixing value at the date of conversion (a drowning), but allowing no damages for hire for the remaining period of the rental, was affirmed.

Smith would be persuasive in this case if the date of conversion were fixed as certainly as there. Here plaintiff made several inquiries of defendant concerning the cylinders. Demand for possession or payment for the tanks was made by plaintiff on March 22, 1972. Defendant then returned and was given credit for two tanks. Plaintiff continued to bill defendant for demurrage until July, 1973. Under this state of the evidence, we are unable to say that the jury was required to find that the date of conversion was March 22, 1972. Indeed, the jury could have fixed the date of conversion at some later time and assessed damages for demurrage until then. A charge which is correct in the abstract, but ignores facts raised by the evidence, may be correctly refused. Johnson v. Coker, 281 Ala. 14, 198 So.2d 299. The charge in question, while correct standing alone, was incorrect when considered in light of all the evidence in the case. It was properly refused.

Further, testimony indicated that damages for replacement cylinders and demur-rage were $2,574.67. Under the court’s oral charge, not objected to by defendant, the jury was free to assess damages for a reasonable attorney’s fee up to $1,000.00. Taken together, these figures show that it was possible for the jury to reach its verdict without finding for plaintiff under the conversion count. The verdict of the jury was a general verdict and not addressed to any particular count of the complaint. There was sufficient evidence to support the verdict under any of the other counts. Therefore, there is no indication that the refusal of the requested charge addressed only to the conversion count was injurious to defendant. Under Rule 45, ARAP, the refusal of a requested charge under such circumstances is not reversible error. See also Ala.Dig. Appeal & Error <S=;’1068(4).

There being no error in the record, the case is due to be affirmed.

AFFIRMED.

■ BRADLEY and HOLMES, JJ., concur.


text:
    TUSKEGEE INSTITUTE, a corporation v. MAY REFRIGERATION COMPANY, INC., a corporation, et al.
    Civ. 553.
    Court of Civil Appeals of Alabama.
    March 10, 1976.
    Rehearing Denied May 5, 1976.

      Gray, Seay & Langford, Tuskegee, for appellant.
    Maye, Melton, Kent & Gunter, Opelika, for appellee, May Refrigeration Co., Inc.
   WRIGHT, Presiding Judge.

Plaintiff recovered judgment against defendant Tuskegee Institute upon a complaint alleging a conspiracy between defendant Tuskegee, certain named defendant agents and other unnamed agents of Tuskegee to defraud plaintiff by puchasing a heating and air conditioning unit with the intent to avoid payment therefor. Judgment was for $2,925.00 plus interest and $3,500.00 punitive damages. Tuskegee appealed. We reverse.

Suit was first begun in Lee County, Alabama, against defendant William B. Shell for money due on account. Shell was a resident of Lee County. By amendment, Darryl Haynes and Tuskegee Institute were added as defendants. After various motions and discovery, Tuskegee filed cross-claims against Shell and Haynes alleging third party liability against Shell and Haynes. Plaintiff amended the com-, plaint to add additional common counts together with Count IV, alleging that defendant Shell, and T. J. Pinnock, together with other unnamed agents and employees of Tuskegee, conspired with Tuskegee to induce plaintiff to sell and install a heating and air conditioning unit at Tuskegee with the intent to avoid payment therefor. T. J. Pinnock was subsequently added as a defendant by plaintiff.

Subsequent to a pre-trial hearing an extensive pre-trial order was entered setting forth the contentions of each party. Testimony was subsequently taken before a jury lasting several days and comprising some 800 pages of transcript. The jury returned a verdict on Count IV against Tuskegee Institute solely and in favor of Shell and Haynes on Tuskegee’s cross-claim.

The issues presented by Tuskegee on appeal are primarily two. First, the evidence was insufficient to show that Tuskegee, through its duly autorized agent or agents, entered into a contract of purchase with plaintiff. Second, if duly authorized agents of Tuskegee, through fraud and misrepresentation, induced plaintiff to sell to defendant Tuskegee, and such agents are co-defendants with Tuskegee, may a judgment against Tuskegee only stand? It appears from the allegations of Count IV, the theory which plaintiff presented in the pre-trial hearing, the evidence presented and the argument of plaintiff in brief and oral argument before this court that a third issue is presented. That is, may a corporation conspire with its own agents to commit fraud?

We present as concisely as possible the tendencies of the evidence as to what occurred giving rise to this suit.

In 1972, Tuskegee Institute had a department in its program known as HRDC or Human Resources Development Center. It was determined that as a part of that department’s operation there was needed a specialized facility designated as a learning center. Plans for such a learning center were drawn by Tuskegee’s architectural designer with input and advice from various specialists employed in HRDC, including defendants Shell and Pinnock. Pin-nock was the head of the department. Shell was employed therein.

With the completed plans and specifications bids were requested by Tuskegee for a construction contract. At the suggestion of Shell, defendant Darryl Haynes submitted a bid which was accepted and a contract was signed between Haynes and Tuskegee. The contract included the procuring and installing of a cooling and heating system.

The evidence disclosed that defendant Shell had requested Haynes to enter a bid even though Haynes was at the time employed by another firm. Shell informed Haynes that he would assist him in the contract through on-site supervision. Shell procured a job superintendent for Haynes to hire and the work began. Shell stated that his superior, Pinnock, delegated to him the task of supervising the construction as it progressed. Pinnock denied that he did so and stated he was not authorized by Tuskegee to make such designation. Another employee, stated by Shell to have been present when Pinnock made such delegation, denied it occurred.

As the job progressed, Haynes and Shell discussed the heating and cooling system. At Haynes suggestion, Shell contacted one of plaintiff’s officers, Larry May. May came to the Institute with brochures on equipment and met with Shell. As Shell and May were discussing the matter, Pin-nock came by. Shell stated he showed the brochure to Pinnock and told him that was the unit needed but that it was going to cost some more than allowed in the contract. He said Pinnock told him in the presence of May to clear the unit with the physical plant department and the additional funds could be obtained. Pinnock denied making such statement. He said he told Shell he knew nothing about such things and to clear it with the physical plant department whose responsibility it was to approve all construction.

May subsequently delivered and installed the unit except for connecting it to the power source. Shell signed for and accepted delivery of the unit in his own name after securing approval of the unit from Haynes. This was the first time plaintiff had ever done any business with either Tuskegee Institute or with Shell or Haynes. He knew nothing of the line of authority at Tuskegee or how they did business. He made no inquiry concerning the authority of Shell or Pinnock prior to delivery.

Shortly after the unit was emplaced, Tuskegee had a meeting with Haynes. It was determined that 75% of the contract had been completed. Tuskegee paid to Haynes $7,607.25 or 75% of the contract price on March 5, 1973. Haynes, on March 6, gave a check for $7,157.25 to Shell. Shell stated he disbursed all of that sum to pay for materials and labor used on the job. Plaintiff was not paid by Shell or Haynes.

Subsequent to the meeting in which it was determined to pay Haynes 75% of the contract price, a letter was sent by Colonel Burton, an employee of Tuskegee, to J. A. Fernandes, purchasing agent for Tuskegee, informing him of the results of the meeting. After stating the amount agreed to be paid to Haynes, the letter stated that it was agreed that alternatives would be pursued to complete the unfinished 25% of the contract pertaining to the heating and air conditioning portion of the contract. On the date of the letter, the work of plaintiff Mays had been completed. The unit had been delivered and installed. The unfinished portion of the contract of Haynes was the connection of the unit to the power source. This work was not the responsibility of plaintiff Mays. Mays’ work had been completed at the time Haynes was paid 75% of the contract price.

Haynes never returned to the job after receiving the payment. After several attempts to get Haynes to complete the job over several months, Tuskegee canceled the contract. It proceeded to complete the worth with its physical plant personnel.

Plaintiff attempted to secure payment from Haynes and subsequently contacted purchasing agent Fernandes. Fernandes requested a purchase order number which Mays did not have. Mays was never paid. Tuskegee connected the unit to the power source and used it.

There was additional testimony as to events transpiring subsequent to the delivery and installation of the unit by Mays. We fail to see the relevance of such testimony to the question of fraudulent misrepresentation of Tuskegee or to the alleged conspiracy of Tuskegee to secure the unit with the intent to avoid payment. Such testimony may have been relevant to the common counts, but we see no relevance to Count IV upon which the verdict was returned.

The essence of Count IV is that Tuskegee, acting through authorized agents Shell, Pinnock or Haynes or other unnamed agents, wilfully or recklessly without knowledge misrepresented to plaintiff that if he sold to Tuskegee a heating and cooling unit for a specific sum, that Tuskegee would pay for it. In the alternative, Count IV alleges that acting in concert with its agents Tuskegee conspired to obtain from plaintiff a heating and cooling unit with the intent not to pay for it.

Under either theory, recovery under Count IV requires plaintiff to establish by the evidence that Shell, Pinnock, Haynes or other unnamed agents of Tuskegee were acting within the line and scope of their authority, either actual or apparent, at the time material false representations were made to plaintiff. City Stores Co. v. Williams, 287 Ala. 385, 252 So.2d 45. The question of agency is for the jury if there is sufficient evidence. Treadwell Ford, Inc. v. Wallace, 49 Ala.App. 308, 271 So.2d 505.

We have heretofore set out portions of the evidence of Shell, Pinnock and Mays. If the testimony of Shell is accepted as true, his authority to contract with plaintiff came from his department head, Dr. Pinnock. - There is no testimony or evidence that Pinnock possessed any authority from Tuskegee, either to contract or to delegate authority to contract. To the contrary, there were long-standing written rules from Tuskegee that all purchases must be made by and through the purchasing agent. Shell had been employed by Tuskegee for some three years in an instructional and development position. He was in no manner in an executive or policy-making position. Pinnock had been employed for some ten years and stated he was thoroughly familiar with the written and published instructions as to authority to make purchases and enter into contracts in behalf of Tuskegee. The evidence was that Pinnock had given Shell prior to this incident written instructions as to his duties and authority. Therefore, if Pinnock had no authority to contract for Tuskegee, he could give none to Shell.

Again accepting Shells’ testimony as true, the alleged request of Pinnock that he supervise the work of Haynes in the performance of his contract did not grant any authority to Shell to purchase on behalf of Tuskegee a heating and cooling unit which Haynes had contracted to furnish and install. The testimony of Shell that Pinnock approved of an overrun in cost for plaintiff’s unit and stated the difference could be raised, if done with authority to bind Tuskegee, would bind Tuskegee only for some $400.00.

A corporation must act through authorized agents. It is the duty of one dealing with a corporation to determine if those with whom he deals possess the requisite actual or apparent authority. Johnson v. Shenandoah Life Insurance Co., 291 Ala. 389, 281 So.2d 636. An agent of a corporation cannot assume authority he is not given. His statement of agency and authority to one with whom he deals cannot bind the corporation. There is no evidence that plaintiff was told by Pinnock or Shell that they had authority to bind Tuskegee. An assumption by plaintiff of such authority is insufficient to carry its burden of proving agency. Plaintiff Mays had never done business with Tuskegee. It did not know either Shell or Pinnock prior to the time of the alleged contract of purchase. There is no evidence that Mays inquired about or knew the position and authority of either Shell or Pinnock. Plaintiff’s representative came to Tuskegee at the request of Shell who contacted plaintiff at the direction of Haynes. There is no evidence that plaintiff inquired of the identity or authority of Pinnock the one time he saw him. Delivery and installment were made without any inquiry by plaintiff. Shell accepted delivery and signed the contract individually without indication that he had authority from Tuskegee. No other employee of Tuskegee, named as defendant in the suit or denoted therein as unknown had any contact with plaintiff until after the alleged false representation and the delivery and installation of the unit. It was not until payment was sought by plaintiff that purchasing agent Fernandes was contacted.

The evidence is that neither Pin-nock or Shell had actual authority to contract for Tuskegee. Did they have apparent authority? The answer must be no. Tuskegee never held out to plaintiff that Shell or Pinnock were its agents to enter contracts. Their positions with Tuskegee were not such as to lead one to believe they or either of them had such authority. If they did, there is no evidence that plaintiff knew of their titles or positions. The doctrine of apparent authority is set out in Automotive Acceptance Corp. v. Powell, 45 Ala.App. 596, 234 So.2d 593. We see no need to restate it here. It is sufficient to say the evidence here does not meet the requirements of that doctrine.

It is therefore our opinion that there was no evidence that Shell, Pinnock or any other employee of Tuskegee, acting with actual or apparent, authority from Tuskegee, made false representations to plaintiff with intent to defraud.

It is further our opinion that the evidence discloses no employee other than Shell and/or Pinnock made any representation to plaintiff which caused it to deliver and install the heating and cooling unit on the premises. Therefore, even if the evidence was sufficient for the jury to find that Shell and/or Pinnock were acting within their authority as agents of Tuskegee in their dealing with plaintiff, the judgment against Tuskegee alone could not stand.

When liability of a principal is vicarious and sought to be established through the tortious act of its agents, joined' in the suit as defendants, a judgment against the principal alone is inconsistent and cannot stand. Title 7, Sec. 176(4); Aggregate Limestone Co. v. Robison, 276 Ala. 338, 161 So.2d 820.

We must further comment that that the charge that Tuskegee conspired with its agents to defraud plaintiff is not legally permissible. A corporation cannot conspire with its own agents acting within the line and scope of their employment. Nelson Radio & Supply Co. v. Motorola, Inc. (5th Cir. 1952), 200 F.2d 911, cert. den., 345 U.S. 925, 73 S.Ct. 783, 97 L.Ed. 1356; 16 Am.Jur.2d Conspiracy, Sec. 47 pg. 151.

For the error of the trial court refusing to grant defendant Tuskegee’s motion for directed verdict as to Count IV and the refusal of motion for new trial, the judgment of the trial court is reversed and the case remanded.

REVERSED AND REMANDED.

BRADLEY and HOLMES, JJ., concur.


text:
    Max J. HASSON and Leon J. Hasson, d/b/a Eastbrook Delicatessen and Grill, Jointly and Individually v. The ALCOHOLIC BEVERAGE CONTROL BOARD of the State of Alabama et al.
    Civ. 683.
    Court of Civil Appeals of Alabama.
    March 10, 1976.
    Whitesell & Gordon, Montgomery, for appellants.
    Steagall & Adams, Ozark, for appellees.
   BRADLEY, Judge.

The ABC Board suspended the liquor license of Max J. Hasson and Leon J. Hasson, d/b/a Eastbrook Delicatessen and Grill for a period of thirty days for violating ABC Board Regulation No. 31, Section 4, i. e., Max Hasson had been found guilty by a court of competent jurisdiction of selling, making or taking a wager. Pursuant to statute, Max Hasson filed a petition in the Circuit Court of Montgomery County asking that a writ of certiora-ri be issued to review the Board’s action in suspending his license. The writ was issued and the defendant answered. After a hearing, the trial court found that the action of the ABC Board in suspending the license in question was just and reasonable and was not arbitrary, capricious or ambiguous. This appeal resulted from that decision.

Regulation No. 31 (which has since been re-numbered Regulation 30) is as follows:

“SECTION 1. Where living quarters are maintained-in the same structure in which an ABC licensed business is operated, such living quarters are and shall be considered a part of the licensed premises and shall be subject to full inspection and supervision by the ABC Board as in any other part of the licensed premises.
“SECTION 2. Such living quarters as above described shall not be deemed to be a home or private premises. All persons, firms, organizations, or corporations holding, continuing to hold, renewing or applying for an ABC license do by virtue of such holding, continuing to hold, renewing, or applying for such ABC license, consent and accept this interpretation of such premises as not being a home or private premises.
“SECTION 3. Establishments which hold ABC hotel or resort hotel liquor licenses are not intended to be included in the above two sections.
“SECTION 4. The ABC licensee shall be held responsible for and accountable to the ABC Board for all criminal conduct which occur on or suffered to occur on any part of the ABC licensed premises. Where the Board finds such criminal conduct to be allowed, caused, permitted, or suffered to occur by the licensee, such licensee’s license shall be subject to suspension, revocation, or other disciplinary action by the Board.
“SECTION S. Any ABC licensee found, on or off the licensed premises, possessing, transporting, selling, receiving, giving, or otherwise dealing with either alcoholic beverages not bearing proper State of Alabama tax-paid crowns, lids, decals, stamps, etc., or with unidentifiable alcoholic bever-erages, moonshine, shinny, etc., shall subject his ABC license to suspension, revocation, or other disciplinary action by the Board.”

Licensee’s principal argument is a constitutional attack on the validity of Section 4 of the regulation. In licensee’s view, the first sentence of Section 4, quoted above, denies him due process of law, is overbroad, void for vagueness, and sets forth no ascertainable standard of conduct in that it renders licensee an insurer of the conduct of other parties on his premises. The Florida decision, State v. Baldwin., 159 Fla. 165, 31 So.2d 627, is cited in support of this argument.

Licensee’s argument is not suited to the facts of the case before us. The instant suspension results from licensee’s own conduct. There is no question of culpability, as an insurer or otherwise,, derivative from someone else’s conduct. Thus, the only constitutional issue presented is whether Regulation 31 is capable of a constitutional application to these facts. We hold that it is. The operative portion of Section 4 is the second sentence. It is unequivocally stated there that disciplinary action can be invoked by the Board only against a licensee who caused or permitted the criminal conduct to occur. Such a regulation is well within the scope of the extensive police power a state possesses in the area of regulating alcoholic beverages, Crowley v. Christensen, 137 U.S. 86, 11 S.Ct. 13, 34 L.Ed. 620. Moreover, Regulation 31 is the reasonable result of a proper delegation of this police power to the ABC Board, Cowan v. State, 32 Ala. App. 161, 22 So.2d 917, cert. den. 247 Ala. 164, 22 So.2d 919; Lovett v. State, 30 Ala.App. 334, 6 So.2d 437, cert. den. 242 Ala. 356, 6 So.2d 441.

Petitioner also argues that Regulation 31 is applicable only to hotels and inns and cannot be the basis for suspending the liquor license of a restaurant owner. We do not believe that the scope of the regulation is so limited. No express provision appearing in the regulation suggests such an interpretation. In fact, Section 3 expressly excludes hotels and resort hotels from coverage under Sections 1 and 2. There are no similar exclusions or other mention of hotels in connection with Section 4. We therefore find no merit in licensee’s argument.

There being no error below, the decision of the trial court is affirmed.

AFFIRMED.

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


author: HOLMES, Judge.

text:
    Edward Earl LaPOINT v. James BARTON.
    Civ. 687.
    Court of Civil Appeals of Alabama.
    March 10, 1976.
    Barnett, Tingle & Noble, and Robert R. Sexton, and Mark B. Poison, Birmingham, for appellant.

      Huie, Fernambucq, Stewart & Smith, and Stanley A. Cash, Birmingham, for appel-lee.
   HOLMES, Judge.

This is a workmen’s compensation case. The Circuit Court of Jefferson County sitting without a jury found the issues in favor of the employer, James Barton. The employee, Edward Earl LaPoint, appeals from that judgment.

The issue which was before the learned trial judge and is now before this court is whether the employer regularly employed four or more employees, as is required by Tit. 26, § 262, Code of Ala. 1940, as amended. The trial court found the employer did not regularly employ four or more employees and therefore the employer did not come within the purview of the Workmen’s Compensation Act.

The case comes to this court on the following stipulation of facts:

The employer owns and operates Barton Trucking Company, a sole proprietorship. In March of 1974, the employer entered into an agreement with Morgan Drive-Away, Inc., whereby he leased four tractor-trailer rigs to Morgan. The rigs were to be used as needed by Morgan Drive-Away, Inc. It was the policy of Morgan that the lessor of the rigs, the employer in this instance, was required to furnish drivers for the rigs. These drivers were required to execute affidavits indicating that they were employees of the lessor and not of Morgan. Appellee-employer furnished Morgan drivers for the rigs, one of whom was appellant LaPoint, and the necessary affidavits were executed.

On April 23, 1974, appellant LaPoint was injured while driving one of the aforementioned rigs leased by the employer to Morgan. He later brought suit for the recovery of workmen’s compensation benefits.

There was testimony that the employer employed four truck drivers at the time appellant was injured, and that he had employed four drivers on occasion since the inception of the above mentioned lease agreement. There was also testimony to the contrary. The employment affidavit of appellant, described earlier, was not introduced into evidence, although it is not contended that he was not an employee at the time of his injury. Of the three employment affidavits pertinent here which were so introduced, the last one to be executed was made approximately one week prior to appellant’s injury.

The trial judge, after hearing the cause ore terms, in his final order found as follows :

“The testimony indicates, in the judgment of the trial Judge, that on the date of the accident there were four drivers who were employed by this Defendant, but it also appeared from the testimony that at least one of them had been but recently employed and accordingly the testimony which we had before us was entirely consistent with the affidavit of James C. Mathews, the accountant and bookeeper [sic] of the Defendant.
“There is testimony that would justify the conclusion that occasionally (as demonstrated by the facts at the time of the accident) the Defendant employed more than three persons, but the whole of the testimony would not support the conclusion that he regularly employed four or more; and this latter conclusion would have to be supportable by the evidence before it could be found that this Defendant was under and subject to the Workmen’s Compensation Act of Alabama. In truth the testimony requires a contrary conclusion.
“Accordingly, the Court herewith finds in behalf of the Defendant.”

The employee prosecuted this appeal from the above judgment.

Title 26, § 262, Code of Ala. 1940, as amended, (1973 Cumulative Supplement), provides as follows in pertinent part:

“(d) The term ‘employer’ as used herein shall mean every person not excluded by section 263 of this title who employs another to perform a service for hire and to whom the ‘employer’ directly pays wages, and shall include any person or corporation, copartnership, or association, or group thereof, and shall, if the employer is insured, include his insurer, as far as applicable, and shall not include one who regularly employs a number less than four in any business; . . . ”

The disposition of this case is governed by the interpretation to be accorded the statutory term, “regularly employs.”

The term does not mean constant employment of the requisite number of persons, but rather is a function of the frequency, regularity, and duration of the occurrences in which that number is employed. Lingo v. Crews, 253 Ala. 227, 43 So.2d 815; Mobile Liners v. McConnell, 220 Ala. 562, 126 So. 626; Larson, The Law of Workmen’s Compensation, § 52.20. What is decisive is the “ . . . established mode or plan in the operation of the business. . . ” Mobile Liners v. McConnell, supra.

It is clear that the findings of the lower court are conclusive on appeal if there is any legal evidence or reasonable inference therefrom in support of those findings. Defense Ordinance Corp. v. England, 52 Ala.App. 565, 295 So.2d 419. Bearing this proposition in mind, we find that the trial court did not err in its determination that the employer did not regularly employ four employees.

The criteria enunciated above in definition of the term “regular employment” indicate that the totality of circumstances concerning the employment practices of the business must be examined. This necessitates that regard must be had to the number of persons employed over a reasonable time. 99 C.J.S. Workmen’s Compensation § 45.

Here, all we know concerning the business of Barton Trucking Company is what transpired during approximately one month in that business. During that month, the employer had been party to' a contractual arrangement requiring him to furnish as needed four truckdrivers to Morgan Drive-Away, Inc. We do not know the regularity of the four drivers’ employment.

The evidence in support of the trial court’s finding is the testimony of the employer that he did not regularly employ four persons, the affidavit of the employer’s bookkeeper consistent with the employer’s testimony, and the affidavits of employment indicating that he had employed four persons for only one week at the time of the accident in question.

As such, where the only facts before us are as set out above, we are constrained to conclude that the trial court did not err to reversal in concluding that the appellee did not regularly employ four employees so as to bring him within the purview of the Workmen’s Compensation Act. The last lease to Morgan Drive-Away, Inc., was executed on March 18, and appellant La-Point was injured on April 23, As noted earlier, the last employment affidavit was executed approximately one week prior to the accident. We are not prepared to say, in view of the paucity of facts revealed by the record, that employment of four drivers for the final seven days of a thirty-six day period constitutes the regular employment required by Tit. 26, § 262(d), Code of Ala. 1940, as amended. The record is such that this court cannot reverse the trial court. Put another way, we cannot say the facts as revealed by the record indicate an “established mode or plan in the operation of the business” whereby four are regularly employed within the meaning of the act.

It is appropriate here to note again that this court does not review the weight or preponderance of ihe evidence, but looks only to see if there is any evidence to sustain the findings of the trial court. Avondale Mills, Inc. v. Tollison, 52 Ala.App. 52, 289 So.2d 621.

So viewing, the case is accordingly due to be affirmed.

AFFIRMED.

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


text:
    STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, a corporation v. Linda WRIGHT, as Administratrix of the Estate of Louie Harold Boone, Deceased.
    Civ. 784.
    Court of Civil Appeals of Alabama.
    March 10, 1976.

      Dortch, Wright & Ford, Gadsden, for appellant.
    George C. Hawkins, Gadsden, for ap-pellee.
   HOLMES, Judge.

This is an appeal from a jury verdict and judgment thereon in the Circuit Court of Etowah County.

The action was on a policy of insurance. The jury found against defendant-appellant State Farm Mutual Automobile Insurance Company, and in favor of plaintiff-appellee Linda Wright, in her capacity as administratrix of the estate of Louie Harold Boone, deceased. State Farm now prosecutes this appeal.

The issues for our determination are whether the trial judge erred to reversal in his oral instructions to the jury, whether plaintiff-appellee presented sufficient evidence for the jury to receive the case, and the construction to be accorded the dispositive provision of the insurance policy.

The record reveals the following pertinent facts:

Louie Harold Boone was the mayor of Reece City, Alabama, and a member of that town’s volunteer fire department. On the night of December 19, 1973, in his capacity as a volunteer fireman, Boone was attempting to extinguish a burning tree adjacent to U.S. Highway 11. While Boone was operating a fire hose, the tree split in two and fell on him. Boone was pinned to the ground on his stomach underneath the fallen tree. The fallen tree extended out into the highway far enough to block one lane.

The tree lay across Boone’s upper legs and all efforts to extricate him failed. Boone" was conscious, talked rationally with others present at the scene, leaned on his elbows and otherwise moved his upper body.

Boone had been pinned beneath the tree in this fashion for approximately five minutes, when a car traveling approximately 60 mph came down the highway and struck the tree. The impact knocked the tree some two feet into the air. While thus temporarily freed, Boone rolled over on his back. The tree then fell on him again.

Boone made a groaning sound when the car struck the tree. After this incident, he was unconscious and did not move. Some type of fluid was observed to be running out of his mouth. The tree was removed by a wrecker and Boone was taken to a local hospital where he was pronounced dead. The death certificate properly admitted into evidence listed the cause of death as a crushing injury to the pelvic area.

Suit was brought on the following provision of Boone’s automobile insurance policy:

“Division 1 — Death Indemnity. To pay the amount stated ... in event of the death of each insured which shall result directly and independently of all other causes from bodily injury caused by accident and sustained by the insured while occupying or through being struck by an automobile, . . . ”

As noted earlier, the jury found for plaintiff-appellee in the $10,000 face amount of the policy, and the defendant-insuror appealed.

Defendant-appellant initially contends that the trial judge erred to reversal in his oral charge by incorrectly defining the defenses presented by appellant, and by commenting on the evidence.

Rule 51, ARCP, provides in pertinent part:

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

Appellant did not object to that portion of the charge which it contends incorrectly delineated appellant’s defenses, and which contains a statement argued to be a comment on the evidence. As such, it may not do so on appeal. Rule 51, ARCP; Roebuck Auto Sales, Inc. v. Wallace, 293 Ala. 231, 301 So.2d 546. Appellant did object to another part of the charge, in which the court allegedly commented on the evidence. However, such was not stated as the ground of the objection. Therefore, appellant may not on appeal predicate error on that ground. Rule 51, ARCP; Wright & Miller, Federal Practice and Procedure: Civil § 2554; Sinclair Refining Co. v. Howell, 5 Cir. 222 F.2d 637.

Appellant, by means of an excellent brief, next argues that the trial judge in his charge erred to reversal by his interpretation of the policy provision set out above. The trial judge charged the jury that, in order for defendant-appellant to be liable under the policy, Boone’s death must have been proximately caused by the automobile striking the tree. Appellant contends that under the wording of the policy the automobile must have been the sole cause of Boone’s death, so that the charge on proximate cause was incorrect.

The policy provision in question, or its equivalent, has been construed many times by the appellate courts of Alabama, albeit in connection with accidental injury rather than automobile policies. The construction placed on such provisions is that they speak in terms of proximate cause and not sole cause. The instant provision would thus require the automobile to be the proximate cause of Boone’s death.

In Benefit Ass’n of Ry. Employees v. Armbruster, 217 Ala. 282, 284, 116 So. 164, 166, the court said:

“Some of the courts, including our own, have construed this clause to mean that the accident shall be the proximate cause of death and not exclusive of other conditions, means, or circumstances. Standard Accident Ins. Co. v. Hoehn, 215 Ala. 109, 110 So. 7. . ."

In the Hoehn case, it was stated:

“Our judgment is that the policy requires that the accident shall be the efficient cause of the loss suffered, whether as disability or death; that is, the cause acting as the immediate agency in the production of the loss. To such a case the language of the Supreme Court of Arkansas in Fidelity & Casualty Co. v. Meyer, 106 Ark. 91, 152 S.W. 995, 44 L.R.A.(N.S.) 493, may be aptly quoted:
“ ‘ * * * The phrase, “resulting directly, independently and exclusively in death,” refers to the efficient, or, as some courts speak of it, the predominant, cause of death at the time it occurs. In other words, it means the proximate cause; . . (215 Ala. at 111, 110 So. at 9)

See also First National Bank of Birmingham v. Equitable Life Assur. Soc., 225 Ala. 586, 144 So. 451; United Ins. Co. of America v. Ray, 271 Ala. 543, 125 So.2d 704; Union Central Life Ins. Co. v. Scott, 286 Ala. 10, 236 So.2d 328.

We cannot perceive any reason to alter this settled construction due to the fact that we are here concerned with a policy of automobile insurance rather than one insuring against accidental injury generally. The pertinent language of the instant policy is the same as that found in policies which were considered in several of the cases cited above. For example, in United Ins. Co. of America v. Ray, supra, the policy read in applicable part:

“ 'Against loss of life, limb, sight or time resulting directly and independently of all other causes from accidental bodily injury sustained while this policy is in force, hereinafter called “such injury.’”” (271 Ala. at 545, 125 So.2d at 706)

It follows that the trial judge did not err by charging the jury on proximate cause in the context of the charge as given. When the trial court’s charge is viewed in its entirety, proximate cause is effectively related to the terms of the policy. The following is of particular import:

“So, the question for your determination, gentlemen, is simply whether or not the tree’s falling caused the death of this man, or whether or not under the wording and under the application of that principle of proximate cause of this policy whether or not he was struck by an automobile and his death ensued as a consequence of that.”

The charge as a whole thus adequately conveys that the causation referred to by the policy provision in question is proximate causation.

Appellant further contends there was insufficient evidence to negate the conclusion that Boone’s death resulted solely from the tree falling on him. Appellant thus argues it was entitled to a directed verdict. However, it is settled law that Alabama adheres to the scintilla evidence rule. 18A Ala.Dig. Trial <®::>139(l)h, and cases cited thereunder. We cannot say there was not a scintilla of evidence in this case that the automobile caused Boone’s death, within the meaning of the policy. It is particularly noted, as seen from the above, that there is evidence that Boone’s condition was drastically altered after the automobile struck the tree.

Appellant’s final argument is that the policy term “struck by an automobile” means actual physical contact between the automobile and the victim. While appellant has cited us no Alabama cases on this point, and we have found none, appellant concedes that the weight of authority from other jurisdictions is that physical contact is not required by this policy provision. See 33 A.L.R.3rd 962. Bearing in mind the settled principle that insurance contracts, where ambiguous, are to be construed most strongly against the insurer and most favorably to the insured, Life Ins. Co. of Georgia v. Miller, 292 Ala. 525, 296 So.2d 900, this court holds in accordance with the majority rule that the instant provision requires no actual physical contact between the automobile and the insured.

The insuror could have specifically restricted the scope of its coverage to occasions of physical contact between automobile and insured. However, it chose instead to rely on more general language. As in this case, - an autdmobile may in many instances by striking an intermediate object cause that object to injure a person. The automobile is then the causative force behind the injury, the means by which it is effected. The language of insurance contracts is to be given its ordinary meaning, Commercial Stan dard Ins. Co. v. New Amsterdam Cas. Co., 272 Ala. 357, 131 So.2d 182, and the normal meaning of the term “struck by” includes occurrences such as we have here described. As such, to say that a person so injured is not “struck by” an automobile within the meaning of the policy provision, is to deprive the insured of the protection which he would reasonably expect from that provision. In such instances, the individual is struck by an automobile as surely as if the vehicle had physically run him over.

All issues presented having been considered, and there being no error in the record, the case is due to be affirmed.

AFFIRMED.

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


author: TYSON, Judge.

text:
    Carolyn F. MAULDIN, alias v. STATE.
    8 Div. 590.
    Court of Criminal Appeals of Alabama.
    Dec. 9, 1975.
    Rehearing Denied Jan. 20, 1976.

      Robert Straub, Decatur, and C. E. Carmichael, Jr., Tuscumbia, for appellant.
    William J. Baxley, Atty. Gen., and Jane LeCroy Robbins, Asst. Atty. Gen., for the State.
   TYSON, Judge.

The appellant was indicted for the first degree murder of Leland Scott Curenton “by shooting him with a pistol.” At trial the jury found the appellant guilty of murder in the second degree and fixed punishment at twelve years, six months, imprisonment. The trial court then pronounced judgment, setting sentence in accordance with this verdict.

Dr. Vann Pruitt, State Toxicologist, testified that he performed an autopsy on the body of Scott Curenton and determined that the cause of death was a gunshot wound in his chest, which pierced and caused severe damage to the heart.

Criminologist Brent Wheeler testified that he conducted ballistic tests and determined that the bullet which caused Curen-ton’s death was fired from a pistol recovered from the appellant’s home.

Edna Mauldin testified that her son, Philip Mauldin, and the appellant had been married for about nine years, but that they had been having marital difficulties prior to Monday, October 1, 1973, the date of the shooting.

Highway Patrolman Elvis Cochran testified that he was the first officer to reach the residence of Philip Mauldin on Ponde-rosa Drive in Colbert County on the afternoon of October 1, 1973. He said that upon his arrival he observed a young woman, whom he identified as the appellant, in the yard near the rear of the house, kneeling down beside a man on the ground. Cochran stated that appellant was upset and asked him to check the man, that he did so, and determined he was dead. Cochran added that he found a shotgun in the yard near the decedent’s body.

Marie Montgomery testified that she lived on Ponderosa Drive across the street from Philip Mauldin. She stated that around 5:00 p. m., October 1, 1973, while looking out of a front window of her house, she noticed Bill Mauldin, Philip’s father, drive into his son’s driveway. Appellant and Philip refused to let him in the house, and he walked back toward his car. Mrs. Montgomery said that as Bill Maul-din neared his car, she saw the appellant come running out of the front door with a pistol in her hand and fire a shot in the direction of Bill Mauldin as she screamed, “Mr. Mauldin, you s. o. b., I swear I’ll kill you. [R. 88] Mr. Mauldin had walked behind his car by this time and the shot struck the side of the car. Mrs. Montgomery stated that she then sáw appellant turn and fire a shot in the direction of Scott Curenton, who had come out of a side door of the house. She said that she did not actually see this second shot fired because appellant’s back was to her, but immediately after it was fired she heard Scott Cur-enton say, “Oh, my God,” several times as he slumped down behind a car over in Philip Mauldin’s driveway.

On cross-examination, Mrs. Montgomery testified that she never saw Scott Curenton with a shotgun, but that a parked car in the driveway across the street partially blocked her view, and that she could only see him from his chest up.

James Long, an investigator for the Colbert County Sheriff’s Office testified that he arrived at the scene around 5:30 p. m. He stated that he recognized the body as being that of Scott Curenton, whom he knew. He said that he recovered the shotgun that was lying in the yard, that it was loaded, but the safety was on.

At this point the State rested.

Bill Mauldin’s account of the events which took place at his son’s house on Ponderosa Drive in Tuscumbia in the late afternoon and evening of October 1, 1973, was essentially the same as that of the State’s key witness, Marie Montgomery. However, a significant addition was his testimony that Scott Curenton had a shotgun to his shoulder while the shooting was going on. He added that at the time of the shooting, his son and the appellant were in the process of getting a divorce, and that the matter had been pending for about four months.

Philip Mauldin, appellant’s husband, testified that he and his wife had been having marital difficulties prior to the fatal shooting during which time she had been seeing the deceased, Scott Curenton. He stated that on the Saturday before the shooting, he received a phone call from the appellant, who was in Florence, Alabama, at the apartment of Scott Curenton. He said that he drove to Florence, picked her up, and carried her back to their house in Tus-cumbia. He added that the appellant had numerous bruises and scratches about her face, and a bursted mouth. Mauldin testified that on the afternoon of October 1, 1973, he and appellant were at home in Tuscumbia, that they were joined by Cur-enton, and that the three of them sat in the dining room and discussed a beating that Curenton had recently administered to the appellant. He stated that the appellant went outside to speak with Bill Mauldin, who had knocked at the front door, and shortly thereafter a shot was heard, at which time Curenton went into the utility room, grabbed one of his, Mauldin’s, shotguns off a gun rack, and ran outside. Mauldin said that he followed Curenton outside and said, “Scottie, drop the gun,” and Curenton replied, “Well, I’ll kill you.” About this time, appellant came around the side of the house and told Curenton to drop the gun, and he said, “I’ll kill you too.” Mauldin said that Curenton had the shotgun pointed at the appellant and was trying to find the safety when the appellant fired. He testified that the appellant and the deceased had had fights on previous occasions, that she weighed about 105 pounds.

Hawley McCorkle, an uncle of the appellant, testified that one day in August of 1973, when the appellant was a patient in Colbert County Hospital, he had to physically remove Scott Curenton from appellant’s room after he refused to leave peacefully.

Another of the appellant’s uncles, Ford McCorkle, said that he was present at Philip Mauldin’s house after the shooting when the sheriff searched the car of the deceased and - found a box of pistol cartridges and some empty beer cans.

Shirley Johnson, appellant’s aunt, testified that she was present at Philip Maul-din’s house on the evening of October 1, 1973, after the shooting, at which time the appellant was hysterical. Mrs. Johnson said that the appellant’s lip was bursted and badly swollen, that she had a black eye, and a big bruise on the side of her head.

In rebuttal, the State recalled Edna Mauldin to the stand. She said that around October 3, 1973, her son, Philip, came by the house, at which time they discussed the shooting. She said Philip told her that he had the shotgun and put it down when Carolyn, the appellant, went out the door and “Scott must have got it.”

Appellant’s request for the affirmative charge was refused, and her motion for a new trial was overruled.

I

Appellant asserts that the trial court erred in refusing to allow testimony as to two instances of prior difficulties between the appellant and the deceased.

In the first instance, appellant was not allowed to question Marie Montgomery as to a prior difficulty. At this point in the trial, no testimony as to self-defense had been presented, thus, the trial court’s ruling was correct. Sanders v. State, 242 Ala. 532, 7 So.2d 483; Plemmons v. State, 42 Ala.App. 638, 176 So.2d 45, cert. denied, 278 Ala. 711, 176 So.2d 48.

The other instance complained of relates to a question directed to appellant’s husband, Philip Mauldin, wherein he was asked:

“Q. Do you know of any other prior difficulty involving violence that Carolyn had had with Scottie other than this occasion before the shooting incident occurred? Of your own personal knowledge, do you know that they had or not had any other incidents of violence involving him and her such as fights— things of that kind ?
“A. They had had fights.
“Q. On other occasions ?
“A. Yes sir.
“Q. So you are saying that before the day of the shooting that Carolyn and Scottie had had previous incidents of difficulty.
“MR. PATTON: Now, I’m going to object to it, if it please the Court, unless the proper predicate is laid to show what time he is talking about, when these occurred. To say they had fights some time prior to that, I believe, is too indefinite.” [R. 248-249]

This second question is too broad and general, and therefore indefinite as it is not limited as to time or place. Further, such evidence would not shed light on the guilt or innocence of the accused. Lovell v. State, 51 Ala.App. 286, 284 So.2d 741.

II

Appellant excepted to the oral charge of the trial court, asserting that it failed to instruct the jury that one is under no duty to retreat when within one’s own home. Appellant cites us to Davis v. State, 48 Ala.App. 58, 261 So.2d 783, cert. denied, 288 Ala. 741, 261 So.2d 785, wherein the trial court’s instruction indicated that a man is “usually” not required to retreat from one’s own home.

In the case at bar, at the conclusion of its oral charge, the trial court gave three of appellant’s written requested charges, among them being given Charge No. 12:

“CHARGE NUMBER 12: Where one is attacked in her own home or in the house yard which constitutes the curti-lage of the home, she is never required to retreat; for it is her castle, and the law permits her to protect its sanctity from every unlawful invasion.”

Further, just before reading the requested charges, the trial court indicated [R. 340]:

“. . . These charges are not to be taken as changing or contradicting the Court’s oral charge, but they are to be taken together with the Court’s oral charge and together with the Court’s oral charge constitute the law applicable to the facts in the case and applicable to your decision of the facts in the case.”

In light of these instructions, we feel that error is not shown. Title 7, Section 273, Code of Alabama 1940.

III

On cross-examination Philip Mauldin, appellant’s husband, was asked as to the whereabouts of his wife on the night of March 21-22, 1973. The District Attorney brought up a sworn statement by the witness in a divorce petition which purportedly contradicted the witness’ explanation of his wife’s whereabouts.

At this point in the proceedings, the trial judge intervened and advised the witness, Philip Mauldin, of his constitutional rights as to self-incrimination, and also as to the penalties for perjury. The witness then declined to answer the question.

Since the question was unanswered, clearly there could be no impeachment on an immaterial matter.

Appellant’s counsel also asserts that the trial judge’s advice as to the penalties for perjury was tantamount to imputing perjury as to this witness, and therefore reflects on the credibility of appellant’s key witness, her husband.

Since Mr. Mauldin declined to answer the question, and moreover stated that he was claiming his immunity upon advice of the trial court, such unanswered question in our opinion does not carry the connotation as suggested by counsel.

IV

On rebuttal, the State recalled Mrs. Edna Mauldin, who testified that several days after the shooting, she had a conversation with her son, Philip Mauldin, at which time he told her “he had the shotgun and put it down when Carolyn went out the door and Scott must have got it.” [R. 311, 313]

Appellant contends that this was new evidence, and that the trial court therefore erred in refusing to allow her to recall her husband, Philip Mauldin, in surrebuttal.

On direct examination Philip Mauldin had testified that he saw Scott Curenton get the shotgun from the gun rack in the utility room near the carport and run outside. Then, from his cross-examination by the District Attorney, we find [R. 263-264]:

“ . . . Now, I ask you when you ran out to see what Carolyn was doing, did Scottie Curenton pick up the shotgun that you had put down and went out the sliding glass door?
“A. I didn’t put no shotgun down there.”

Thus, it is clear that Mrs. Maul-din’s rebuttal testimony did not constitute new evidence, but was merely a continuation of that elicited by the State on cross-examination. The trial court properly exercised its discretion in allowing this rebuttal testimony. Borland v. Mayo, 8 Ala. 104; Ellison v. State, 33 Ala.App. 405, 34 So.2d 185.

We have carefully examined this record and find no error therein. The judgment is therefore due to be and the same is hereby

AFFIRMED.

All the Judges concur.


text:
    In re Carolyn F. MAULDIN, alias v. STATE of Alabama. Ex parte Carolyn F. Mauldin.
    SC 1675.
    Supreme Court of Alabama.
    March 19, 1976.
    Robert Straub, Decatur and C. E. Carmichael, Jr., Tuscumbia, for petitioner.
    None for the State.
   JONES, Justice.

Petition of Carolyn F. Mauldin for Cer-tiorari to the Court of Criminal Appeals to review and revise the judgment and decision of that Court in Mauldin, Alias v. State, 57 Ala.App.-, 328 So.2d 612.

WRIT DENIED.

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