text:
    Whitney DASE v. STATE of Mississippi.
    No. 50413.
    Supreme Court of Mississippi.
    March 29, 1978.
    Guy M. Walker, J. Larry Walters, Laurel, for appellant.

      A. F. Summer, Atty. Gen. by Pete J. Cajoleas, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before ROBERTSON, SUGG and WALKER, JJ.
   WALKER, Justice,

for the Court:

This is an appeal from a conviction of murder, returned after a jury trial in the Circuit Court of Jones County, Mississippi. Appellant was sentenced to life in the custody of the Mississippi Department of Corrections.

Appellant’s first contention is that the verdict was against the overwhelming weight of the evidence. We do not agree.

Appellant testified that he went looking for the deceased after the latter hit his (appellant’s) mother the previous night. He further stated that he armed himself with a broken pool cue and a .38 calibre revolver because he had been told that the deceased was a violent character who carried a knife. According to appellant, when he confronted the deceased and identified himself as the son of the woman whom the deceased beat the night before, the deceased made a scurrilous remark about appellant’s mother and reached into his pocket and came out with his knife. Appellant hit the deceased with the pool cue, which broke and fell to the floor. The deceased staggered back and got out his knife and started cutting at appellant, who grabbed a chair and placed it between himself and the deceased. Appellant stated that as they circled around the chair, he got out his pistol and fired a shot into the floor. The deceased then pushed the chair and appellant fell backwards onto the floor. The deceased was not, however, able to take advantage of this situation because of appellant’s pistol and when appellant got up they resumed circling around a chair, with the deceased trying to cut appellant. Appellant fired another shot into the floor but this did not seem to faze the deceased. The combatants finally worked their way into the back room of the cafe where this fight took place and the deceased pushed appellant off balance again and came at him. Appellant then shot him twice in the leg. These bullets severed the femoral artery and the deceased bled to death.

Appellant’s testimony was substantially corroborated by his wife and by one David Cooley. However, Mr. Cooley’s testimony was impeached by a prior inconsistent statement.

The evidence for the state was largely circumstantial as none of its witnesses saw anything after the initial blow struck by appellant with the pool cue. However, one witness did testify that she did not see the deceased reach into his pocket before appellant hit him, although she was watching at the time. Other than this, the state largely relied upon the photographs of the deceased and testimony regarding his wounds to establish that appellant was the aggressor and beat the deceased much more severely than he admitted.

After carefully considering the evidence, we are of the opinion that there was sufficient evidence for the jury to find appellant guilty of murder. Consequently, we reject this assignment of error.

Appellant next contends that the trial court erred in allowing the introduction of photographs taken of the nude body of the deceased showing wounds caused by others at a time prior to the altercation between the deceased and the appellant.

The photographs of which appellant complains are one of the deceased’s face, which exhibits a large gash on the forehead; one of the back of deceased’s head, which shows a gash behind the left ear; one which shows the two bullet wounds in the thigh which caused the death; and one which shows how the deceased’s right earlobe was almost severed. There was testimony that prior to the altercation between the deceased and appellant, the former had a large bandage on his forehead, a stab wound in his chest, bruise marks about his neck, a bruise behind his left ear, and a bullet lodged in his skull from a wound suffered much earlier.

Appellant contends that it was error to allow the introduction of the photographs showing the bullet wounds in the thigh and the wound of the deceased’s right earlobe because it was admitted that the appellant shot the deceased in the leg and struck the deceased with a cue stick, probably, according to appellant’s brief, on the deceased’s right ear.

The rule is that if photographs which disclose some gruesome aspect of the crime are relevant to an issue in the case, then the defendant cannot complain of the portrayal of a condition which he himself caused; but if the photographs are not relevant or material to any issue in the case and serve only to inflame the minds of the jurors and prejudice them against the accused, they should not be received into evidence. West v. State, 218 Miss. 397, 67 So.2d 366 (1953).

Judged by this standard, it is clear that there was no error by the trial court in admitting these photographs which would require the reversal of this ease. While the appellant may have admitted causing the bullet wounds in the deceased’s thigh, that admission did not come until after the photograph of those wounds was admitted into evidence. Moreover, the photograph is not particularly gruesome and it is not likely that the jurors would have been inflamed by viewing it. See Curry v. State, 328 So.2d 328 (Miss.1976). The photograph of the deceased’s right ear was relevant in that it contradicted appellant’s testimony that he only hit the deceased once with the cue stick, which he was holding in his right hand as he and the deceased faced each other. In such a position appellant’s right side would have been opposite the deceased’s left side and the blow probably would have been to the left side of the deceased’s head. The photographs of the gashes on the front and back of the deceased’s head were relevant in that they showed fresh wounds, thereby contradicting the testimony which indicated that those wounds might have been old ones. Further, these photographs reveal that greater force and violence was used by appellant than that which was admitted by appellant. See Hancock v. State, 209 Miss. 523, 47 So.2d 833 (1950). For these reasons, we reject appellant’s second assignment of error.

Appellant next contends that the trial court erred in refusing to grant a new trial based upon the discovery, after the verdict, that a prospective juror concealed material information sought by counsel’s questions propounded on voir dire, which deprived appellant of the opportunity to exercise challenges either peremptorily or for cause.

The facts relevant to this assignment are that during voir dire examination, a prospective juror failed to respond when the panel was asked the following question: “Have any of you or members of your immediate family ever been the victim of a crime or a violent crime?”

The prospective juror subsequently served as a juror in appellant’s trial. After the return of a guilty verdict, counsel for appellant learned that the juror’s son had been stabbed to death approximately one month prior to appellant’s trial. At the hearing on the motion for a new trial, it was established that at the time of the voir dire examination, the prospective juror knew that her son had been stabbed to death, although she did not know how he had received the mortal wound. She testified that, although she heard the question, she did not respond to it because she did not think about her son when it was asked. She further stated that her son’s death had no effect on her verdict in the case.

We recently were faced with a similar issue in the case of Odom v. State, 355 So.2d 1381 (1978), where we held that in such cases the trial court should determine: (1) whether the question to which the juror failed to respond was relevant to the voir dire; (2)whether the juror had substantial knowledge of the information sought to be elicited; and (3) whether the question was direct and unambiguous. If these questions are answered in the affirmative, then the court should grant a new trial if there is a reasonable inference of prejudice.

In the instant case, it is clear that the answers to the three questions were all affirmative. The state contends, however, that the juror did not know that her son was the victim of a violent crime, although she knew he had been stabbed, and that, therefore, Odom does not apply here. However, it is apparent from her testimony that her failure to respond to the question was inadvertent and that she did in fact think that her son was the victim of a violent crime and this is what is really important under the Odom test. It is clear that prejudice is inferable from the juror’s failure to reveal the information sought by the question and that she would, in all probability, have been challenged peremptorily, if not for cause, if his attorney had been in possession of this information. We find it impossible to believe that the juror could have forgotten so shocking an event as her son’s violent death in a month’s time. Therefore, we hold that the lower court erred in denying the motion for a new trial.

Appellant next assigns as error the trial court’s denial of his requested manslaughter instruction. In view of appellant’s testimony that the deceased drew his knife before appellant struck him with the cue stick, we are of the opinion that this assignment is well taken. See Wells v. State, 305 So.2d 333 (Miss.1974); Martin v. State, 112 Miss. 365, 73 So. 64 (1916); Cotton v. State, 31 Miss. 504 (1856).

Finally, appellant contends that the trial court erred in excluding the testimony of two witnesses concerning a conversation they had with appellant on the day of the killing in which they informed appellant that the deceased was a violent person, who carried a knife and would kill appellant if they got into a fight. Appellant argues that since the purpose of this testimony was to shed light on his state of mind at the time of the incident, it was improperly excluded. However, even if we assume, for the sake of argument, that such testimony was admissible, the error in excluding it was harmless because appellant testified as to the substance of the conversation himself.

For the foregoing reasons, the cause is reversed and remanded for a new trial.

REVERSED AND REMANDED FOR A NEW TRIAL.

PATTERSON, C. J., SMITH and ROBERTSON, P. JJ., and SUGG, BROOM, LEE, BOWLING and COFER, JJ., concur.

      . It should be noted that the state did not question the juror’s competency to testify at the hearing on the motion for a new trial, so no issue is raised with respect to the admissibility of her testimony.


source: Caselaw Access Project

author: WALKER, Justice,

license: Public Domain

text:
    Bobby JONES v. STATE of Mississippi.
    No. 50627.
    Supreme Court of Mississippi.
    March 29, 1978.

      Thomas J. Tubb, West Point, for appellant.
    A. F. Summer, Atty. Gen., by Wayne Snuggs, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before SMITH, WALKER and BOWLING, JJ.
   WALKER, Justice,

for the Court:

Defendant was indicted in Clay County for the crime of robbery. After trial the jury returned a verdict of guilty and the court sentenced Jones to twelve years in the State penitentiary.

On appeal Jones assigns three errors; however, he argues and briefs only that the indictment was not marked “filed” and was not signed and dated by the circuit clerk, and that since these requirements are jurisdictional the trial court had no jurisdiction to try him.

Mississippi Code Annotated section 99-7-9 (1972) under the general heading “Criminal procedure” provides in part:

All indictments must be presented to the court by the foreman of the grand jury, with his name endorsed thereon, in the presence of at least twelve (12) of such jury, including the foreman, and must be marked “filed,” and such entry be dated and signed by the clerk. An entry on the minutes of the court of the finding or presenting of an indictment shall not be necessary or made, but the endorsement by the foreman, together with the marking, dating, and signing by the clerk shall be the legal evidence of the finding and presenting to the court of the indictment.

This Court has pointed out on previous occasions that if the statutory requirements of section 99-7-9 (and its predecessors) are not met, it is proper to demur to such an indictment and the demurrer should be sustained. Stanford v. State, 76 Miss. 257, 24 So. 536 (1899) [Code of 1892 § 1346]; Williamson v. State, 64 Miss. 229, 1 So. 171 (1887) [Code of 1880 § 3006]. However, in both of these cases an objection to failure to comply with the statutory requirement was raised at trial and neither based its holding on jurisdictional grounds.

In other cases, we have held that an objection that the clerk’s filing endorsement does not appear on the indictment may not be raised for the first time on appeal. Wooten v. State, 155 Miss. 726, 125 So. 103 (1929); Bailey v. State, 156 Miss. 772, 126 So. 476 (1930). See Fairley v. State, 163 Miss. 682, 138 So. 330 (1931); Washington v. State, 78 Miss. 189, 28 So. 850 (1900). Cf. Pruitt v. State, 163 Miss. 47, 139 So. 861 (1932), where we held that an objection that a foreman of a grand jury did not endorse the indictment could not be raised for the first time on appeal. This line of cases clearly indicates that we have not considered the defects complained of jurisdictional but rather as a procedural defect which must be raised by special demurrer to the indictment or it is waived.

This interpretation is reinforced when the statutory scheme is analyzed. Under Mississippi Code Annotated section 99-7-21 (1972) an objection to an indictment for a defect appearing on its face (e. g., lack of clerk’s filing endorsement) must be made by demurrer and provision is made in the statute for amendment, if necessary. Similarly, under the more specific wording of Chapter 11, Jurisdiction and Venue, section 99-11-35 provides:

A person shall not be acquitted or discharged in a criminal case, before verdict, for any irregularity or informality in the pleadings or proceedings; nor shall any verdict or judgment be arrested, reversed or annulled after the same is rendered, for any defect or omission in any jury, either grand or petit, or for any other defect of form which might have been taken advantage of before verdict, and which shall not have been so taken advantage of.

And in Chapter 35 under Appeals, section 99-35-143 provides that no judgment shall be reversed for any “error or omission in the case in the court below,” except jurisdictional error, “unless the record show that the errors complained of were made ground for special exception in that court.” This statute has been applied to defects in indictments in different circumstances. See, e. g., Looney v. State, 304 So.2d 44 (Miss.1974); Jones v. State, 279 So.2d 594 (Miss.1973).

Here on the facts sub judice, the objection to the circuit clerk’s failure to comply with the statutory requirement of section 99-7-9 was a procedural objection, not jurisdictional. Further, there was no demurrer to the indictment, nor objection at trial, nor was it raised in a motion for a new trial. We therefore hold that the defendant waived his right to object and may not now do so for the first time on appeal. For the above stated reasons, the judgment of the court below is affirmed.

AFFIRMED.

PATTERSON, C. J., SMITH and ROBERTSON, P. JJ., and SUGG, BROOM, LEE, BOWLING and COFER, JJ., concur.


author: SHORES, Justice.

text:
    Carl H. TREHERN et al. v. Wilson G. WILKERSON.
    SC 2793.
    Supreme Court of Alabama.
    March 24, 1978.

      James W. Tarlton, III, Mobile, for appellants.
    Robert S. Edington, Mobile, for appellee.
   SHORES, Justice.

Plaintiff sued the defendants seeking to quiet title to approximately 26 acres of land outside the city limits of Satsuma, Alabama. The property, which had been owned by and assessed in the name of J. T. Trehern, was sold for taxes on June 10, 1966, and purchased by the State. On July 13, 1967, a tax certificate was issued by the State to plaintiff Wilkerson; and notice of the transfer of the tax certificate was placed on the delinquent tax docket of real estate in Mobile County. Wilkerson alleged that he has been in possession of the property since that time. Defendants are the heirs of J. T. Trehern, who died in 1953. They filed a counterclaim seeking redemption of the property from the tax sale.

• The trial court quieted title in the plaintiff, and the defendants appealed.

Both sides agree that there are no factual disputes. Immediately after Wilkerson bought the property for taxes in 1967, he and his wife moved onto the property, occupying a house situated thereon. They separated because of a marital dispute sometime in 1968 or 1969 for approximately six months. Wilkerson moved to Mississippi, but his wife continued to live on the property. During that period, she either lost or probably destroyed the tax certificate. The evidence was that, because of the marital dispute, she burned all of her husband’s papers. After about six months, the Wilk-ersons were reconciled and Mr. Wilkerson again joined his wife in the house situated on the property.

They continued to live on the property until 1972, when the two of them moved to Hattiesburg, Mississippi. At that time, they rented the property to Mrs. Wilkerson’s father and to her brother and his’ family, who were still living there as tenants of the Wilkersons at the time of the trial. Wilkerson has paid all taxes on the property since 1967. None of the Trehern heirs has lived on the property since 1967; and none of them has paid any taxes on it since 1965.

In 1974, Wilkerson requested the probate judge to issue to him a duplicate tax certificate. When the probate judge refused, Wilkerson filed an action to require the issuance of a duplicate certificate. This court, in Wilkerson v. Moore, 294 Ala. 373, 377, 378, 318 So.2d 241, 245 (1975), held that Wilkerson was entitled to “ . . . apply for a duplicate tax certificate if it is established that the original certificate was lost, destroyed or stolen and that he has not transferred or assigned it; and that such duplicate certificate, if ordered issued, could be returned and exchanged for a tax deed under Tit. 51, § 276. ...” The duplicate certificate was issued to Wilkerson in September, 1975.

The question is: When did Wilkerson become entitled to demand a deed to the property within the meaning of Title 51, § 295, Code (now § 40-10-82, 1975 Code), which provides:

“Limitation of actions.
“No action for the recovery of real estate sold for the payment of taxes shall lie unless the same is brought within three years from the date when the purchaser became entitled to demand a deed therefor .. . .”

The Trehern heirs contend that Wilkerson did not become entitled to demand a deed to the property until he acquired a duplicate tax certificate in September, 1975. Wilkerson, on the other hand, insists that he became entitled to demand a deed to the property within the meaning of the foregoing statute three years from the date of the tax sale under Title 51, § 276, Code (now § 40-10-29), which provides:

“Deeds — Delivered to purchaser.
“After the expiration of three years from the date of the sale of any real estate for taxes, the judge of probate then in office must execute and deliver to the purchaser, other than the state, or person to whom the certificate of purchase has been assigned, upon the return of the certificate and payment of a fee of $1.00 to the judge of probate, a deed to each lot or parcel of real estate sold to the purchaser and remaining unredeemed . .

We agree with Wilkerson. In. Riley v. Depriest, 295 Ala. 68, 322 So.2d 713 (1975), the purchaser bought the property at a tax sale on December 2, 1964, and went into possession of the property under his certificate on that date. He did not apply for a deed to the property until June 3, 1974. This court held, however, that the purchaser was entitled to demand a deed to the property in December, 1967, three years after the date of the sale. Citing Title 51, § 295, this court said:

“Under this statute, our cases have held that three years of continuous adverse possession of the lands by the tax sale purchaser, measured from the date that he becomes entitled to demand a tax deed thereto, will bar an action by the former owner except in those instances mentioned in the statute. . . . ” (295 Ala. at 70, 322 So.2d at 715)

In Riley, supra, the court noted that the purchaser bought the property in December, 1964, and went into possession under his certificate of sale at that time. He, therefore, “ . . . became entitled to demand a deed therefor in 1967 under the provisions of Tit. 51, § 276. . . . ” (Emphasis Supplied) (295 Ala. at 70, 322 So.2d at 715) Thus, the action was barred by Title 51, § 295, Code.

In the instant case, the property was sold for taxes in 1966; Wilkerson purchased the property at a tax sale in 1967. He immediately went into possession under his certificate of title. He, therefore, became entitled to demand a deed to the property, if not in 1969, at least by 1970. Thus, he completed three years of continuous, adverse possession no later than 1973. The claim of the Trehern heirs is, therefore, barred by Title 51, § 295, Code.

In support of their argument that Wilkerson was not entitled to demand a deed until he was issued a duplicate certificate, the Trehern heirs assert that the probate judge was not required to issue a deed under Title 51, § 276, until Wilkerson returned the certificate to him and paid the $1.00 fee. They say that, inasmuch as Tre-hern was incapable of returning the certificate until a duplicate was issued in 1975, he did not become entitled to a deed until that time. We are not persuaded by this argument. The requirement that the certificate be returned to the probate judge is for his protection and its loss or destruction did not destroy the rights of Wilkerson under it. This was explicitly recognized in Wilkerson v. Moore, supra, which held that the destruction of the tax certificate did not destroy the efficacy of Wilkerson’s claim thereunder.

The Trehern heirs next argue that the tax sale to Wilkerson was void because the property was assessed in the name of a deceased person. Whether void or valid, continuous adverse possession of the land by the purchaser at a tax sale for three years after he became entitled to demand a' tax deed bars an action to recover the land by the former owner. Turnham v. Potter, 289 Ala. 685, 271 So.2d 246 (1972); Finerson v. Hubbard, 255 Ala. 551, 52 So.2d 506 (1951); Singley v. Dempsey, 252 Ala. 677, 42 So.2d 609 (1949); Bobo v. Edwards Realty Co., 250 Ala. 344, 34 So.2d 165 (1947); Odom v. Averett, 248 Ala. 289, 27 So.2d 479 (1946).

If there was evidence to support the trial court’s conclusion that Wilkerson remained in open, notorious and adverse possession of the property for three years after he became entitled to demand a deed, the judgment appealed from is due to be affirmed. As noted, the evidence shows that Wilkerson and his family lived in the house on the property from July, 1967, through mid-1972. They then rented the property to Mrs. Wilkerson’s father and later to her brother and his family. The brother remains on the property. Additionally, Wilkerson erected strands of wire and a partial fence on the south side of the property and rented- a portion of it annually to area residents for gardens and for a pig pen. At one time, Wilkerson erected “no trespassing” signs on the property; he chased off hunters from the property and allowed his father-in-law to farm part of the land and raise pigs and horses on it. These acts constitute evidence from which the trial court could have concluded, correctly, that Wilkerson was in actual, adverse possession of the property. Its judgment is, therefore, affirmed.

AFFIRMED.

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


author: MADDOX, Justice.

text:
    W. E. PENNEY v. O. D. CARDEN and Rachel Carden.
    SC 2817.
    Supreme Court of Alabama.
    March 24, 1978.
    James S. McGinty, of Dawson & McGinty, Scottsboro, for appellant.
    Ronald A. Drummond, of Livingston & Drummond, Scottsboro, for appellees.
   MADDOX, Justice.

The gist of this action involved a dispute between individuals over the ownership of a twenty acre tract of land.

The pre-trial order set forth the issues: “Nature of the Case. This is a property dispute between the Plaintiffs and the Defendants. By agreement of the parties the issues to be determined in this case are:
“(a) The ownership of a tract of land described as follows:
“All that part of the Southwest quarter of the Northeast quarter of Section 12, Township 3, Range 3, lying Southwest of Dry Creek as now established containing twenty acres, more or less in Jackson County, Alabama.
* * * * * *
“Position of the Parties, (a) The Plaintiff contends that he is the owner of the land described in Paragraph 2(a) by virtue of the fact that he and his predecessors in title have adversely possessed the land since 1928 and that he and his predecessors in title have paid taxes exclusively on this property since 1928 except that the Defendant has paid taxes since 1971. Plaintiff further claims title to the property by virtue of a deed from Nancy Davis Carden and husband, Robert Car-den, dated May 20, 1970, and recorded in Deed Book 228, at page 356 in the Probate Office of Jackson County, Alabama. * * * * * *
“(b) Defendants contend that they are the owners of the tract of land described in Paragraph 2(a) by virtue of adverse possession of themselves and their predecessors in title, and by virtue of a deed from the heirs of Winston T. Smith and Arthur E. Robertson dated February 20, 1970, and recorded in Deed Book 227, at page 322 in the Probate Office of Jackson County, Alabama.”

The trial court saw and heard the witnesses, and decreed that the Cardens (plaintiffs) had adversely possessed the tract. Appellant, Penney (defendant below) argues that Carden alleged, but did not prove, that he was in peaceable possession; therefore, says Penney, the court was ousted of jurisdiction because the statutory proceeding in rem to quiet title (now § 6-6-560, Code, 1975) requires allegation and proof that the claimant “is in the actual, peaceable possession of the land.” We disagree. A quiet title action will lie in two fundamental situations, one is where the complainant is in the actual peaceable possession of the property, and the other is whether no one is in the actual possession of the property. Dennison v. Claiborne, 289 Ala. 69, 265 So.2d 853 (1972), which quotes from Fitts v. Alexander, 277 Ala. 372, 170 So.2d 808 (1965).

The pre-trial order, “which controls] the subsequent course of the action,” stated that the issue involved was the ownership of the disputed tract. The evidence introduced on the issues set out in the pre-trial order was sufficient to give the court jurisdiction to enter the decree in this cause. Cf. Chestang v. Tensaw Land & Timber Co., 273 Ala. 8, 134 So.2d 159 (1961).

Appellant claims that the trial court lacked jurisdiction because “the evidence is without dispute that W. E. Penney had been in the actual possession of the property since immediately after he purchased it in 1969, and continuing up until the trial (1977).” If the evidence were uncontradict-ed that Penney was in actual possession as he claims, it is true that title to land cannot be quieted in one out of possession when another is in possession. Dennison v. Claiborne, supra. Here, however, the evidence of actual possession was disputed.

Assuming, however, that the evidence was undisputed that Penney did have actual possession of the tract, should the decree of the trial court be reversed? No. One of the issues set out in the pre-trial order, which controlled the subsequent course of the proceeding, concerned the ownership of the disputed tract. The spirit of the new Rules of Procedure is that they should be construed to assure the just, speedy and inexpensive determination of every action. Furthermore, as we will discuss in part II of this opinion, Rule 54(c) provides that in non-default judgments, the trial court should grant the relief to which a party in whose favor it is rendered is entitled, even if the party has not demanded that relief in his pleadings. In this case, the court, acting pursuant to the pre-trial order, could fashion a decree as if the suit had been begun as an action to quiet title, but was tried as an action in ejectment.

Therefore, the judgment of the trial court which determines the ownership of the land is due to be affirmed.

PART II

Appellant contends that the trial court erred in failing to make an award of compensation to him for improvements made on the subject property. He admits that the pleadings do not claim this compensation, but he insists that he is entitled to recover it under his prayer for general relief in his cross-complaint. He also claims that the testimony of Carden that the land was substantially enhanced in value by reason of the improvements, is sufficient in and of itself to entitle him to compensation. It is undisputed that the trial of the case was well under way before the issue of compensation to Penney arose. The following transpired during cross-examination of ap-pellee Carden:

“Q Do you have a judgment about what the value of this disputed property was before Bill Penny (sic) did any work on it?
“MR. PROCTOR: Object; I don’t see the materiality of that.
“THE COURT: What was the purpose of that, Mr. McGinty?
“MR. MC GINTY: Judge, we think that it’s important for the Court to know the value of the property.
“THE COURT: Why?
“MR. MC GINTY: Because Mr. Penny (sic) improved it.
“THE COURT: That has got nothing to do with whether he owns it or not.
“MR. MC GINTY: We except.
“THE COURT: You can prove what he’s done on it as tending to establish his possession, if it’s done within a time that would be material; buy I don’t see how what he spent or what the property if worth would have anything to do with it; sustained.
“MR. MC GINTY: Judge, we feel that it would be important; if the Court should rule that it was work done on Mr. Carden’s property, then he would be unjustly enriched by the improvements that were done.
“THE COURT: If I gave, decided Carden owned the property, then Mr. Penny (sic) would be entitled to some sort of compensation for the improvements on it. I don’t recall that being anywhere in the pleadings.
“MR. LITTLE: Judge, I think it would be included in the general prayer of relief.
“MR. PROCTOR: He knew it was in dispute ever since he bought it. Any improvements would be at his own risk. “THE COURT: I will overrule it for the time being. I did not realize that there was, that was within the purview of the pleadings at all; but if you say it is, we’ll see.
“MR. LITTLE: It’s not in those words, Judge.
“Q What, in your judgment, is that property worth, was that property worth immediately after Mr. Penny (sic) did his clearing and cleaning and sowing it down in pasture and putting the fences around it, and so forth?
“A Well, most of that land, from clearing and cleaning up across the creek there from it, I have done some; and at that time, it would cost about $165.00 an acre.
“Q To clear it up?
“A To clear it and sow it.
“Q What would you say that the value of that land was immediately after he got through the work he did out there on it?
“A About $165.00 an acre more.
“Q More?
“A (Witness nods in the affirmative.)”

Appellant chiefly relies on the provisions of Rule 54(c), A.R.C.P., which provides, in part:

“ * * * Except as to a party against whom a judgment is entered by default, every final judgment shall grant the relief to which the party in whose favor it is rendered is entitled, even if the party has not demanded such relief in his pleadings.”

The quoted portion of Rule 54(c) applies not only to claimants, but to defending parties as well. 6 Moore’s Federal Practice ¶ 54.62, p. 1271.

The Cardens primarily attack Penney’s claim for damages here on appeal as coming too late. They say that Penney should have insisted on the claim as an issue in the pre-trial order, or should have moved to amend his pleadings, and, at least, should have given the trial court, in a post-judgment motion, an opportunity to rule on the matter. Admittedly, the Cardens state what constitutes the better practice, but the question remains whether Penney, having failed to take these steps, is now precluded from attacking the judgment. Construing Rule 54(c) liberally, we hold that he is not. At the time the evidence was presented, Penney’s counsel advised the trial court of the purpose of the testimony on improvements, and that the relief requested could be given under Penney’s general prayer for relief.

The situation here is somewhat similar, factually, to a set of circumstances in Sapp v. Renfroe, 511 F.2d 172 (1975).

There, Sapp’s complaint did not contain a demand for money damages, except for such “further relief as is just and proper.” Sapp, however, in response to a Board of Education’s motion to dismiss the appeal, asserted in the appellate court that he was entitled to money damages. The Fifth Circuit, in a footnote, stated that Rule 54(c) of the Federal Rules of Civil Procedure had been construed liberally and under it a demand for relief in the pleadings did not limit, except in cases of default, the relief a court could grant when entering judgment.

In Albemarle Paper Co. v. Moody, 422 U.S. 405, 95 S.Ct. 2362, 45 L.Ed.2d 280 (1975), in a class suit under Title VII of the Civil Rights Act, the claimant’s request for backpay was filed nearly five years after the institution of the action. The backpay claim was not prayed for in the pleadings. A Federal District Court denied the back-pay claim, using the tardiness of the filing and the lack of a prayer for relief in the pleadings as grounds for its denial. The Supreme Court of the United States held:

“It is true that Title VII contains no legal bar to raising backpay claims after the complaint for injunctive relief has been filed, or indeed after a trial on that complaint has been had. Furthermore, Fed.Rule Civ.Proc. 54(c) directs that
‘every final judgment shall grant the relief to which the party in whose favor it is rendered is entitled, even if the party has not demanded such relief in his pleadings.’
But a party may not be ‘entitled’ to relief if its conduct of the cause has improperly and substantially prejudiced the other party. The respondents here were not merely tardy, but also inconsistent, in demanding backpay. To deny backpay because a particular cause has been prosecuted in an eccentric fashion, prejudicial to the other party, does not offend the broad purposes of Title VII. This is not to say, however, that the District Court’s ruling was necessarily correct. Whether the petitioners were in fact prejudiced, and whether the respondents’ trial conduct was excusable, are questions that will be open to review by the Court of Appeals, if the District Court, on remand, decides again to decline to make any award of backpay. . . . ”

In Robinson v. Lorillard Corporation, 444 F.2d 791 (1971), the court applied Rule 54(c), as follows:

“The complaint filed by the plaintiffs in the District Court did not specifically request an award of back pay, though it did request ‘such other additional relief as may appear to the Court to be equitable and just.’ At a pretrial hearing concerning the appropriateness of a class action, one of the lawyers for the plaintiffs clearly indicated that the suit was one for injunctive relief rather than recovery of lost wages. It was not until well after trial of the case, though before the judge had entered a decision, that a request was made for additional relief in the form of back pay for the class. Defendants argue that these facts constitute an effective renunciation and waiver of any right to receive an award of back pay.
“The starting point for resolution of this issue is Rule 54(c) of the Federal Rules of Civil Procedure which provides:
“Except as to a party against whom a judgment is entered by default, every final judgment shall grant the relief to which the party in whose favor it is rendered is entitled, even if the party has not demanded such relief in his pleadings. (Emphasis added.)
This provision has been liberally construed, leaving no question that it is the court’s duty to grant whatever relief is appropriate in the case on the basis of the facts proved. The pleadings serve only as a rough guide to the nature of the case.
“There are only two limiting principles to the general rule which might avail the defendants. The first is that a remedy desired by none of the parties should not be forced upon them. Mercury Oil Refining Co. v. Oil Workers Int’l Union, 187 F.2d 980, 983 (10th Cir. 1951); International Nikoh Corp. v. H. K. Porter Co., 358 F.2d 284, 290 (7th Cir. 1966) (dictum). But that is not our case. Although the plaintiffs initially indicated that they were not seeking back pay, prior to the entry of judgment they added a request that back pay be awarded the class. Clearly it was not forced upon them against their will.
“The one other limiting principle which might assist defendants’ case is expressed in the following manner by Rental Development Corporation of America v. Lavery, 304 F.2d 839, 842 (9th Cir. 1962):
“If, however, it is made to appear that the failure to ask for particular relief substantially prejudiced the opposing party, Rule 54(c) does not sanction the granting of relief not prayed for in the pleadings.
In our case, because the obligation to provide back pay stems from the same source as the obligation to reform the seniority system, any general defenses relevant to the back pay award were equally relevant to the suit for injunctive relief. Any specific defenses related only to computation of back pay may be raised during the process of assessing individual back pay claims, possibly before a special master. The defendants have in no way been prejudiced by the belated claim.”

We do not interpret the trial court’s decree as making a determination on Penney’s claim for compensation. Therefore, we reverse the judgment insofar as it relates to this claim for compensation, and remand the cause to the trial court with directions to make a determination whether Penney is “entitled” to a judgment, under the particular facts already proved. In determining whether Penney is “entitled” to a judgment on his claim for compensation, the court may consider whether the failure by Penney to ask for the compensation by pleading and prayer substantially prejudiced the Cardens. Albemarle, supra.

The trial court is directed to make specific findings to support its determination whether Penney is or is not “entitled” to a judgment under Rule 54(c), in order that either party, if aggrieved, may appeal the determination. The standard of review on any appeal would be the familiar one, whether the findings made by the trial court were clearly and palpably wrong. See Albemarle, supra.

AFFIRMED, IN PART; REVERSED, IN PART; AND REMANDED WITH DIRECTIONS.

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


author: JAMES N. BLOODWORTH HUGH MADDOX JAMES H. FAULKNER RENEAU P. ALMON JANIE L. SHORES ERIC EMBRY SAM A. BEATTY Associate Justices JAMES N. BLOODWORTH SAM A. BEATTY

text:
    OPINION OF THE JUSTICES.
    No. 243.
    Supreme Court of Alabama.
    March 28, 1978.
   To the Members of the Senate

State Capitol

Montgomery, Alabama 36130

Gentlemen:

We acknowledge receipt of and thank you for your Senate Resolution No. 378 requesting our advisory opinion relative to H.B. 94:

BE IT RESOLVED BY THE SENATE OF ALABAMA, That pursuant to Section 12-2-10, Code of Alabama 1975, the Senate respectfully requests the written opinions of the Honorable Chief Justice and Associate Justices of the Supreme Court of Alabama, or a majority of them, on the following important constitutional question that has arisen concerning a pending bill, House Bill No. 94, a true and correct copy of which is attached hereto:
Does H.B. 94 introduced at the 1978 Regular Session of the Legislature of Alabama, by pledging for the payment of the principal of and interest due on the revenue bonds authorized therein to be issued, the receipts of a special processing charge imposed on all coal process through the coal-handling facilities at the Port of Mobile to be constructed with the proceeds of the revenue bonds therein authorized and the coal-handling facilities constructed with the proceeds of the revenue bonds authorized by Act No. 64 enacted at the 1971 Special Session of the Legislature of Alabama, as amended by Act No. 2306 enacted at the 1971 Regular Session of the Legislature of Alabama, authorize the State to create or incur new debt in violation of Section 213, Constitution of Alabama of 1901, as amended by Amendment No. 26?
RESOLVED FURTHER, That the Secretary of the Senate is directed to send nine (9) true copies of the pending bill, H.B. 94, to the Clerk of the Supreme Court of Alabama, and to transmit this request to the Justices of the Supreme Court of Alabama forthwith upon adoption of this resolution.

Having examined the terms of H.B. 94, it is our opinion that the transaction contemplated by that Act will not create a debt in violation of Section 213 of the Alabama Constitution 1901, as amended by Amendment No. 26.

The proscription contained in that section refers to the creation of new debt. The legislation in question would authorize an increase in revenue bonds the sale of which would fund improvements in existing seaport facilities and also the construction of additional seaport facilities, all such designed to handle bulk facilities. Even though existing facilities are to be improved, H.B. 94 does not divert funds derived from the employment of any such existing facilities for the payment of either principal or interest on these proposed revenue bonds. Those payments are to be made solely from the revenue generated by the special processing charge provided for by the bill which pledges such charges for the payment of the bonds issued thereunder.

It has been held that when the State pledges income from an existing facility to repay borrowed money, “there is then a pledge of something the State already has, a part of the credit of the State.” Opinion of the Justices, 266 Ala. 78, 93 So.2d 923 (1957). If, on the other hand, the State pledges revenue from a source it did not possess before, such action does not divert funds or property which could have been used for other purposes. Thus a part of the full faith and credit of the State is not being pledged and no new debt is created in violation of the constitutional limitations on debt. While the statements in the Act, that the evidence of debt shall not constitute a debt of the State of Alabama and shall not pledge the full faith or credit of the State of Alabama, do not in themselves govern this question, this is not to state that their presence in those documents would not be of assistance in demonstrating this limitation to prospective purchasers. Lang v. City of Mobile, 239 Ala. 331, 195 So. 248 (1940); Opinion of the Justices, 266 Ala. 78, 93 So.2d 923 (1957); In Re Opinion of the Justices, 226 Ala. 570, 148 So. 111 (1933); In Re Opinion of the Justices, 226 Ala. 18, 145 So. 481 (1933).

Respectfully submitted,

JAMES N. BLOODWORTH

HUGH MADDOX

JAMES H. FAULKNER

RENEAU P. ALMON

JANIE L. SHORES

ERIC EMBRY

SAM A. BEATTY

Associate Justices

Moreover, H.B. 94 specifically provides that the bonds “shall never be or constitute a debt of the State within the meaning of any constitutional provisions, and neither the full faith nor the credit of the State shall ever be pledged or utilized therefor.” H.B. 94 further provides that the principal and interest on the bonds “shall be payable solely out of the special processing charge authorized by this act.” This clearly appears to be a capitalization of funds derived from the operation of the state docks facility. This court has said “that a State agency may thus capitalize on funds thus derived without creating a debt.” Opinion of the Justices, 247 Ala. 663, 26 So.2d 103 (1946). The justices cite, as authority for that proposition, a long line of authorities from 220 Ala. to 239 Ala. In that opinion, the Court was confronted with the same question with which we are confronted here, namely, a question propounded by the governor as to whether revenue securities, bonds, notes or certificates, issued by the state docks and terminals of Alabama (predecessor of the present state docks system) constitute debts created against or incurred by the State of Alabama, or its authority, within the meaning of § 213 of the Constitution of Alabama of 1901. The justices concluded that the issuance of such revenue securities would not contravene § 213. See also Opinion of the Justices, 254 Ala. 506, 49 So.2d 175 (1950); Lang v. City of Mobile, 239 Ala. 331, 195 So. 248 (1940). This proposition has been cited with approval as recently as Rogers v. City of Mobile, 277 Ala. 261, 169 So.2d 282 (1964). In Rogers the obligation of the Alabama State Docks Department under a lease was held not to constitute a debt of the state within the meaning of § 213.

Respectfully submitted,

JAMES N. BLOODWORTH

SAM A. BEATTY


author: ALMON, Justice.

text:
    B & M HOMES, INC., and Kenneth R. Morrow jointly and severally v. AMERICAN LIBERTY INSURANCE COMPANY, a corporation.
    SC 2500.
    Supreme Court of Alabama.
    March 31, 1978.
    William M. Lyon, Jr. of Tonsmeire, McFadden, Riley & Parker, Mobile, for appellants.
    Bert S. Nettles and Robert H. Allen, Mobile, for appellee.
   ALMON, Justice.

This is an appeal from a summary judgment rendered in favor of American Liberty Insurance Company. B & M Homes, Inc., and Kenneth R. Morrow sued American Liberty for damages for its failure to defend the appellants in a civil suit. We affirm.

B & M Homes and Morrow were sued by Thomas J. Hogan and Carol Ann Hogan for damages allegedly caused by breach of warranty and negligence on the construction of a house. The Hogans filed suit in January, 1975. The complaint was served on B & M ’ Homes and Morrow about February 1,1975. The Hogans were awarded a judgment in the amount of $75,000.

B & M Homes and Morrow sued American Liberty claiming they were the insureds under a policy of insurance issued by American Liberty which provided coverage for the claims made in the Hogans’ suit. The complaint also alleged that B & M Homes and Morrow had given American Liberty due notice of the Hogans’ suit and that American Liberty had refused to defend B & M Homes and Morrow in that suit.

American Liberty defended on the grounds that it had not received proper notice of the occurrence or the Hogans’ suit, as required by the policy. American Liberty also asserted that the damages claimed in the suit were expressly excluded by the terms of the policy.

American Liberty moved for summary judgment based on the pleadings, the policy of insurance, and the deposition of John C. Miller, the agent of American Liberty who obtained the insurance policy for B & M Homes. Miller testified that the first notice he received of the Hogans’ suit was by letter from the attorney for B & M Homes and Morrow dated September 29, 1975, over seven months after the appellants were served with the complaint in the Hogan suit.

The appellants’ complaint states that American Liberty was given notice of the suit through Mr. Miller on September 29, 1975. The issue of timely notice is disposi-tive of this appeal.

As a condition precedent to an action against American Liberty, the appellants were required to give timely notice of an occurrence, claim or suit. The policy states:

“(a) In the event of an occurrence, written notice containing particulars sufficient to identify the insured and also reasonably obtainable information with respect to the time, place and circumstances thereof, and the names and addresses of the injured and of available witnesses, shall be given by or for the insured to the company or any of its authorized agents as soon as practicable. The named insured shall promptly take at his expense all reasonable steps to prevent other bodily injury or property damage from arising out of the same or similar conditions, but such expense shall not be recoverable under this policy.
“(b) If claim is made or suit is brought against the insured, the insured, shall immediately forward to the company every demand, notice, summons or other process received by him or his representative.”

The issue of timely notice under these facts is one of law. Aetna Ins. Co. v. Spring Lake, Inc., 350 So.2d 397 (Ala., 1977); Southern Guaranty Ins. Co. v. Thomas, 334 So.2d 879 (Ala., 1976).

In Thomas, supra, the court held that a six-month delay in giving notice to the insurer was unreasonable as a matter of law. It was so held in the face of excuses offered by the insured.

In the present case, the appellants offer no excuse for the over seven month delay in giving notice of the suit. We hold that as a matter of law the notice to American Liberty is unreasonable. Southern Guaranty Ins. Co. v. Thomas, supra.

The judgment of the trial court is hereby affirmed.

AFFIRMED.

TORBERT, C. J., and BLOODWORTH, FAULKNER and EMBRY, JJ., concur.


text:
    James GILL v. Tony SEWELL, Director of Mobile Work Release Center, Mobile Work Release Center, J. C. Locke, Individually, et al.
    SC 2503 and SC 2503X.
    Supreme Court of Alabama.
    March 31, 1978.

      Richard D. Horne, Mobile, for appellant and cross-appellee.
    W. Scears Barnes, Jr., Alexander City, for appellees and cross-appellant, Sewell.
   ALMON, Justice.

The issue presented is whether a complaint charging negligence, by State officials while in the performance of discretionary duties under statutory authority is barred by Section 14, Constitution of Alabama 1901, as a suit against the State? We hold that it is.

James Walter Gill was shot and injured while attempting to stop a robbery in the City of Mobile on the night of December 17, 1975. Gill was on duty as an officer with the Mobile City Police Department. Oliver Lamar Young was subsequently convicted for the robbery. At the time of the robbery, Young was an inmate of the Mobile Work Release Center.

Gill sued seeking money damages against Tony Sewell, Director of the Mobile Work Release Center; the Mobile Work Release Center; J. C. Locke, individually and as Commissioner, Board of Corrections, State of Alabama; the Alabama Board of Corrections; and the State of Alabama. Gill claims that the defendants were negligent in allowing a convicted felon with a long history of violent crimes to be released to a minimum security institution, the Mobile Work Release Center. Gill also alleges negligence in the care and surveillance, and in monitoring the custody of Oliver Lamar Young while in the Mobile Work Release Center.

The Attorney General filed a motion to dismiss and a letter in support thereof stating that the suit was barred by Section 14, Art. I, Constitution of Alabama, as a suit against the State, its agents and officials. Alternatively, the Attorney General moved for a change of venue to Montgomery County.

The trial court granted the motion to' dismiss as to all defendants except Tony Sewell, Director of the Mobile Work Release Center. The motion to change venue was denied.

Gill appeals the dismissal of the action as to all defendants except Tony Sewell. Tony Sewell cross-appeals the failure to dismiss the action as to him. The trial court certified the appeal as an order not otherwise appealable. Rule 54, ARCP. We affirm the trial court’s action dismissing the defendants and reverse the court’s failure to dismiss the action as to Tony Sewell, as Director of the Mobile Work Release Center.

Article I, Section 14, of our Constitution prohibits the State and its agencies from being made a defendant to a suit. Constitution of Alabama, 1901; Hutchinson v. Board of Trustees of University of Alabama, 288 Ala. 20, 256 So.2d 281 (1971) and authorities cited therein. Section 14 also prohibits a suit against State officers and agents in their official capacity and individually when a result favorable to the plaintiff would directly affect a contract or property right of the State. Wallace v. Malone, 279 Ala. 93, 182 So.2d 360 (1964); State Docks Commission v. Barnes, 225 Ala. 403, 143 So. 581 (1932).

In determining whether an action against a State office or agent is in fact a suit against the State, the court considers the nature of the suit or the relief demanded. Boaz Nursing Home, Inc., v. Recovery Inns of America, Inc., 289 Ala. 144, 266 So.2d 588 (1972); State v. Norman Tabacco Company, 273 Ala. 420, 142 So.2d 873 (1962).

There are several categories of cases which do not fall within the prohibition of § 14. In Aland v. Graham, 287 Ala. 226, 250 So.2d 677 (1977), the court listed these categories as:

“(1) Actions brought to compel State officials to perform their legal duties. Department of Industrial Relations v. West Boylston Manufacturing Co., 253 Ala. 67, 42 So.2d 787; Metcalf v. Department of Industrial Relations, 245 Ala. 299, 16 So.2d 787. (2) Actions brought to enjoin State officials from enforcing an unconstitutional law. Glass v. Prudential Insurance Co. of America, 246 Ala. 579, 22 So.2d 13; Southall v. Stricos Corp., supra [275 Ala. 156, 153 So.2d 234], (3) Actions to compel State officials to perform ministerial acts. Curry v. Woodstock Slag Corp., 242 Ala. 379, 6 So.2d 479, and cases there cited. (4) Actions brought under the Declaratory Judgments Act, Tit. 17, § 156 et seq., Code 1940, seeking construction of a statute and how it should be applied in a given situation. Curry v. Woodstock Slag Corp., supra, and cases there cited.” 287 Ala. at 229-230, 250 So.2d at 679.

This list was never intended to be a comprehensive final list of those actions not barred by Section 14. In Unzicker v. State, 346 So.2d 931 (Ala., 1977), we held that a suit may be maintained against State officials in their official capacity for acts allegedly committed fraudulently, in bad faith, beyond their authority, or under a mistaken interpretation of the law. 346 So.2d at 933.

This suit alleges negligent misconduct on the part of the State, its agencies and officials (except J. C. Locke) in their official capacity. Such a suit is barred by Section 14 of the Alabama Constitution. Gill fails to bring the suit within the categories recognized in Aland and Unzicker.

J. C. Locke was the only defendant sued in an individual capacity. Section 14 does not necessarily immunize State officers and agents from individual civil liability. Finnell v. Pitts, 222 Ala. 290, 132 So. 2 (1930); J. B. McCrary Co. v. Phillips, 222 Ala. 117, 130 So. 805 (1930); Elmore v. Fields, 153 Ala. 345, 45 So. 66 (1907).

There is no allegation in the complaint that J. C. Locke exceeded the authority given him by statute. The complaint at best alleges that he negligently performed his statutory duty. Tit. 45, § 188(1) et seq., Code of Alabama 1940, Recompiled 1958. Acting pursuant to such statutory authority, J. C. Locke acted as the State and the claim is barred by Section 14 of the Constitution.

The judgment in this cause is hereby affirmed in part, reversed in part, and rendered.

AFFIRMED IN PART, REVERSED IN PART, AND RENDERED.

TORBERT, C. J., and BLOODWORTH, FAULKNER and EMBRY, JJ., concur.

      . Tit. 45, § 188(2) provides: “The board is authorized to adopt regulations and policies permitting the commissioner to extend the limits of the place of confinement of an inmate, as to whom there is reasonable cause to believe he will know his trust, by authorizing him, under prescribed conditions, to leave the confines of that place unaccompanied by a custodial agent for a prescribed period of time to work at paid employment, while continuing as an inmate of the institution or facility in which he shall be confined except during the hours of his employment or seeking of employment and traveling thereto and therefrom, 'inmates shall participate in paid employment at the discretion of the board.”


text:
    Shirley K. HENDRIX v. The NATIONAL LIFE AND ACCIDENT INSURANCE COMPANY.
    SC 2570.
    Supreme Court of Alabama.
    March 31, 1978.
    Robert L. Burdine, Jr., Florence, for appellant.
    Robert 0. Cox of Poellnitz, Cox, Robison, McBurney & Jones, for appellee.
   ALMON, Justice.

Plaintiff-appellant Shirley K. Hendrix, sought the proceeds as beneficiary on an accidental death insurance policy issued by The National Life and Accident Insurance Company on Timothy Hendrix, deceased husband of appellant. National Life & Accident was granted summary judgment on the basis of the pleadings, affidavits, admissions of fact, and written stipulations. Appellant filed no counter-affidavits. We affirm the trial court.

Appellant admitted that her husband died of asphyxiation from L.P. gas while sleeping in his private living quarters. The insurance policy contained a provision which excluded from coverage any loss from gas or fumes except gas or fumes involuntarily inhaled in the course of the insured person’s employment or occupation. Specifically, the issue is whether Hendrix inhaled gas in the course of his employment or occupation.

The stipulation of facts in the record contains the following:

“(7) At the time of death of the said Timothy Hendrix, the said Timothy Hendrix was employed as a machinist by the Tennessee Valley Authority and had no other employment or occupation. He was assigned to a job at Shawnee Steam Plant near Paducah, Kentucky. He had been working there on that job since December 10, 1975. He was an hourly employee and was paid for his work by the hour. He was last on duty at his job with TVA on January 29, 1976 and when he left the job site on January 29, 1976, was not due back at his job site until the same shift the following day which would have been the afternoon of January 30, 1976. He did not return to his job site. He was not required as a part of the duties of his job to live in any particular locality nor in any particular place. He was not on call nor was he subject to call by his employer when he was off the job site. His death occurred while he was sleeping in his privately owned living quarters. His home was on Route # 5, Florence, Alabama, at the time he began his employment with TVA at Paducah, Kentucky, and rather than moving to Kentucky, he left his family at home and lived in Padu-cah, Kentucky during the week, returning to his home on the weekends, and he had obtained a converted van vehicle for use as living and sleeping quarters while he was in the Paducah area. It was in this converted van that he was sleeping when he was asphyxiated.”

Normally, whether someone is injured or dies in the course of his or her employment or occupation is a factual matter for the jury to decide. However, the court must pretermit a jury decision if the evidence is insufficient as a matter of law, in accord-anee with the scintilla evidence rule. The stipulation of facts in this case presents squarely the issue of the sufficiency of the evidence for a jury decision.

We can find no Alabama case discussing the meaning of “in the course of employment or occupation” clause in an accidental death insurance policy. However, we may look for guidance to our cases on workman’s compensation wherein it is a statutory requirement for recovery that the injury occur in the course of employment. See § 25-5-31, Code of Alabama 1975.

In relation to such laws, we have stated: “. . . the phrase ‘in the course of his employment’ refers to the time, place and circumstances under which the accident took place. An injury to an employee arises in the course of his employment when it occurs within the period of his employment, at a place where he may reasonably be, and while he is reasonably fulfilling the duties of his employment or engaged in doing something incident to it. . ” Anderson v. Custom Caterers, Inc., 279 Ala. 360, 361, 185 So.2d 383, 385 (1966).

Appellant has cited numerous cases in support of her contention that her husband died in the course of his employment or occupation. However, none of the cited cases is controlling. In each, the employer may be said to derive some benefit by the actions of the employee and the employee is under some degree of control of the employer. These factors are not present in this case. To the contrary, appellant has stipulated that Timothy Hendrix was not required to live in any particular locality or place nor was he on call or subject to call while off the job site. Under these facts, we hold, as a matter of law, the insured did not die in the course of his employment or occupation.

The judgment of the trial court is hereby affirmed.

AFFIRMED.

TORBERT, C. J., and BLOODWORTH, FAULKNER and EMBRY, JJ., concur.

      . The insurance policy is not part of the record. At page 5 of appellee’s brief the following is stated:
      “Defendant issued an accidental death policy insuring the life of Hendrix, deceased husband of plaintiff. The policy contained the following exclusion:
      “The Group Policy does not cover and does not provide benefits for any loss directly, wholly or partly, resulting from or caused by any of the following excluded risks: . (j) any poison, gas, fumes, sedative or other drug, voluntarily or involuntarily taken, administered, absorbed, or inhaled, except gas or fumes involuntarily inhaled in the course of the insured person’s employment or occupation.”
      Also, the case was submitted for summary judgment based on the following stipulation:
      “(6) The plaintiff is not entitled to recover in this case under the policy of insurance sued upon unless the death of the said Timothy Hendrix resulted from or was caused by gas or fumes involuntarily inhaled in the course of the said Timothy Hendrix’s employment or occupation.”


text:
    Robert MILTON v. Melford ESPEY.
    SC 2645.
    Supreme Court of Alabama.
    March 31, 1978.
    Robert F. Prince, McDuffie, Holcombe & Prince, Tuscaloosa, for appellant.
    Dan M. Gibson, University, for appellee.
   ALMON, Justice.

Plaintiff Milton appeals a summary judgment rendered against him. The issue is whether Milton’s action against Espey is barred by Section 14 of the Alabama Constitution which declares sovereign immunity. Both Milton and Espey were employees of the University of Alabama. Milton was employed at the Ferguson Center of the University of Alabama as a student assistant, and then as assistant director of the Ferguson Center from March 1, 1973, until August 19, 1974. Espey is the Director of the Ferguson Center.

Milton’s complaint contains five counts seeking money damages from Espey. The University is not a party to the suit. Milton claims he and Espey entered into an agreement whereby Espey would employ him at a salary of $223.00 a month and a work load of 20 hours per week. Milton claims that beginning in January, 1974, Es-pey promised to pay him $387.50 a month for 38.75 work hours per week. Espey allegedly breached the agreement by requiring Milton to work an average of 55 hours per week during this time period without compensation.

Counts One, Two and Five sound in contract. Count Four alleges that during this period Espey was the immediate supervisor of Milton and he supervised Milton in a negligent manner in that he failed to evaluate Milton as provided by the rules and regulations of the University and as a proximate cause thereof Milton’s reputation and work record were damaged.

Count Three alleges fraud. It states that during employment negotiations Espey made false representations to Milton, knowing they were false or without knowledge of the true facts, recklessly misrepresented them with the intention that Milton rely upon the misrepresentations. The count further alleges that Milton did in fact rely upon the misrepresentations to his detriment.

Espey filed a motion to dismiss accompanied by an affidavit which states that Milton was employed by the University and his salary was paid by the University; at no time was there any agreement or understanding that Espey would pay or be responsible for Milton’s salary. It also states that Milton was employed according to University procedure and was subject to the same rules and regulations as any other University employee in a like position. The affidavit further states there was no agreement between the parties concerning the number of hours Milton would work, as this aspect of his employment was governed by University policy.

The issue is whether this is a suit against the State, which is barred by Section 14 of the Constitution of Alabama. Milton states the issue is whether a suit can be maintained against an agent of the University of Alabama, when the University is admittedly constitutionally immune from suit. Hutchinson v. Board of Trustees of University of Alabama, 288 Ala. 20, 256 So.2d 281 (1972); Cox v. Board of Trustees of University of Alabama, 161 Ala. 639, 49 So. 814 (1909).

Section 14 of the Constitution not only prevents a suit against the State, but against its officers and agents in their official capacity when a result favorable to the plaintiff would directly affect a contract or property right of the State. Boaz Nursing Home, Inc. v. Recovery Inns of America, Inc., 289 Ala. 144, 266 So.2d 588 (1972); Southall v. Stricos Corp., 275 Ala. 156, 153 So.2d 234 (1963). The prohibition of Section 14 cannot be circumvented by suing the official or agent individually. See Wallace v. Malone, 279 Ala. 93, 182 So.2d 360 (1964).

In determining whether an action against a State officer or agent is in fact a suit against the State, the court considers the nature of the suit or the relief demanded. Boaz Nursing Home, Inc. v. Recovery Inns of America, Inc., supra; State v. Norman Tobacco Company, 273 Ala. 420, 142 So.2d 873 (1962).

There is no dispute that in employing Milton, Espey was acting in his official capacity as an agent of the- University. Milton admits this. Espey was merely the conduit through which the University contracted with Milton. Thus, a suit seeking money damages for breach of contract, although nominally against Espey individually, comes within the prohibition of Section 14 as a suit against the State. Milton’s contract was in fact with the University of Alabama. Coiner v. Bankhead, 70 Ala. 493 (1881); Wallace v. Malone, supra.

Thus, Counts One, Two, Four and Five are barred by Section 14 and summary judgment was appropriately granted as to these counts.

Count Three which alleges fraud presents an entirely different situation. In Aland v. Graham, 287 Ala. 226, 250 So.2d 677 (1971), this court stated:

“Without professing to cover every situation that has arisen, there are four general categories of action that we have held do not come within the prohibition of Sec. 14. (1) Actions brought to compel State officials to perform their legal duties. Department of Industrial Relations v. West Boylston Manufacturing Co., 253 Ala. 67, 42 So.2d 787; Metcalf v. Department of Industrial Relations, 245 Ala. 299, 16 So.2d 787. (2) Actions brought to enjoin State officials from enforcing an unconstitutional law. Glass v. Prudential Insurance Co. of America, 246 Ala. 579, 22 So.2d 13; Southall v. Stricos Corp., supra. (3) Actions to compel State officials to perform ministerial acts. Curry v. Woodstock Slag Corp., 242 Ala. 379, 6 So.2d 479, and cases there cited. (4) Actions brought under the Declaratory Judgments Act, Tit. 7, § 156 et seq., Code 1940, seeking construction of a statute and how it should be applied in a given situation. Curry v. Woodstock Slag Corp., supra, and cases there cited.” 287 Ala. at 229-230, 250 So.2d at 679.

The Aland case does not purport to list all classes of cases not within the prohibition of Section 14. In Unzicker v. State, 346 So.2d 931 (Ala.1977), this court observed that:

“While the State itself may not be made a party,to such action, it does not necessarily follow that its officers, Ray Bass, Claude Kelley and Governor Wallace, in their respective capacities, are also immune. The essence of plaintiffs’ complaint is that these officers of the State acted fraudulently, in bad faith, beyond their authority, or acted under a mistaken interpretation of the law. Such allegations bring this case within those not protected by Section 14 of the Constitution. Wallace v. Board of Education of Montgomery Co., 280 Ala. 635, 197 So.2d 428 (1967); Engelhardt v. Jenkins, 273 Ala. 352, 141 So.2d 193 (1962); Finnell v. Pitts, 222 Ala. 290, 132 So. 2 (1930).” (Emphasis added.)

Section 14 does not necessarily immunize State officers or agents from individual civil liability. See also J. B. McCrary Co. v. Phillips, 222 Ala. 117, 130 So. 805 (1930) and Elmore v. Fields, 153 Ala. 345, 45 So. 66 (1907).

The claim asserted in Count Three is fraud, allegedly committed by Espey while acting outside his authority and contrary to the rules and regulations of the University of Alabama. The rules and regulations of the University are not part of the record. What powers and duties Espey has as Director of the Ferguson Center we cannot guess. However, from the record we cannot say that Milton has not raised a material issue of fact or that Espey is entitled to judgment in his favor as a matter of law.

The judgment is reversed and the cause is remanded with respect to Count Three.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

TORBERT, C. J., and BLOODWORTH, FAULKNER and EMBRY, JJ., concur.


author: FAULKNER, Justice.

text:
    REDWING CARRIERS, INC., a corp., et al. v. CROWN CENTRAL PETROLEUM CORP., a corp., et al.
    77-66.
    Supreme Court of Alabama.
    March 31, 1978.

      John R. Matthews, Jr., C. Winston Shee-han, Jr. of Ball, Ball, Duke & Matthews, J. Douglas Harris of Harris & Harris, Montgomery, for appellants.
    James W. Garrett, Jr. and James T. Up-church, III, Montgomery, for appellees, Crown Central Petroleum Corp., et al.
   FAULKNER, Justice.

On December 10, 1974, pursuant to a request from Crown, Redwing delivered gasoline to a Crown station. While filling one of the storage .tanks, a tank overflowed, and fumes were ignited by a concealed pilot light on a space heater in the station. Stephenson, a Crown employee, was severely burned and brought suit- against Redwing. The suit was settled for $87,500.00, and Redwing brought suit in Montgomery County Circuit Court seeking indemnity or contribution from the employer, Crown. Crown’s motion to dismiss was granted, and Redwing appeals. We affirm.

In seeking indemnity or contribution from Crown, Redwing alleged active negligence in Crown’s breach (through its agent) of its duty to have its premises in a reasonably safe condition and to provide Red-wing’s driver with proper assistance and instructions and contends that its own driver was, at most, guilty of passive negligence. However, Redwing’s attempt to distinguish this case from Sherman Concrete Pipe Machinery, Inc. v. Gadsden Concrete & Metal Pipe Co., Inc., 335 So.2d 125 (Ala.Sup.Ct. 1976) and Gunter v. United States Fidelity & Guaranty Co., 340 So.2d 749 (Ala.Sup.Ct.1976) is no longer viable in light of this court’s recent decision, Paul Krebs & Associates v. Matthews & Fritts Construction Co., Inc., 356 So.2d 638 (Ala.Sup.Ct.1978). There we held as a matter of statutory construction that under Tit. 26, § 272, Code of Ala.1940 (Recomp.1958), “. . . no employer shall be held civilly liable for injuries to workmen injured in the course of his employment. To allow a third-party tort-feasor to recover over against the employer for injury to an employee would be to allow indirectly what is prohibited directly.”

AFFIRMED.

TORBERT, C. J., and BLOODWORTH, ALMON and EMBRY,. JJ., concur:


author: WRIGHT, Presiding Judge.

text:
    STATE of Alabama v. DELTA AIR LINES, INC.
    Civ. 1275.
    Court of Civil Appeals of Alabama.
    Jan. 11, 1978.
    Rehearing Denied Feb. 15, 1978.
    Certiorari denied, Ala., 356 So.2d 1208.
    William J. Baxley, Atty. Gen., Herbert I. Burson, Jr., Chief Counsel, Dept, of Revenue and Asst. Atty. Gen., John J. Breckenridge, Asst. Counsel, Dept, of Revenue and Asst. Atty. Gen., for appellant.
    Robert C. Black and Neal H. Acker for Hill, Hill, Carter, Franco & Black, Montgomery, Hunter R. Hughes III, Atlanta, Ga., for appellee.
   WRIGHT, Presiding Judge.

This is an appeal by the State from the setting aside of a sales tax assessment. We affirm.

A final assessment for sales tax in the amount of $57,178.30 was entered against Delta Air Lines by the Revenue Department, State of Alabama. The basis of the assessment was that Delta sold meals, snacks and other foods to its passengers when they purchased their tickets in Alabama. According to the State, the purchase of the ticket from Delta was the taxing event, a retail sale.

The undisputed facts are: Delta sells tickets to passengers departing on its flights from Alabama. On certain flights meals, snacks and other foods are served. None of such meals, snacks and other foods are served while the aircraft is in airspace over Alabama. All flights are in interstate commerce. The transaction relating to the purchase of tickets is subject to cancellation by either the purchaser or the airline. The price of the ticket is the same on such flights whether a meal is served or not. If for some reason a meal, though scheduled, is not served there is no right to a refund or a chit for a comparable meal at destination. There is no agreement or commitment concerning serving of meals except as provided by the ticket or appropriate tariff. Delta has control over meals and there is no assurance of or right to a meal until it is served. The assessment of taxes was computed by the Revenue Department through use of a mathematical formula. That formula was as follows:

Ticket sales in Alabama X all catered = Alabama food Total ticket sales in food cost sales to be Delta system taxed at 4%

The trial court found in its judgment that delivery of the meal passed title and constituted a sale; that the sale to the passenger consumer was the taxable event under the Alabama law; that the sale occurred outside Alabama and in interstate commerce and was not subject to Alabama sales tax. The court further found that the formula used by the State in calculating the tax was arbitrary, unreasonable and unlawful and bore no relationship to alleged sales of meals by Delta in Alabama.

The State in its appeal contends two issues. First, the court misapplied the law to the facts. Second, the finding that the formula used by the State was unlawful was against the great weight of the evidence.

The State begins its argument in brief with the admission that the assessment was entered against Delta as a result of the decision of this court, with subsequent affirmation by the Supreme Court, in the case of State v. Hertz Skycenter, Inc., 55 Ala. App. 481, 317 So.2d 319, affirmed on cert., 294 Ala. 336, 317 So.2d 324 (1975).

We very carefully pointed out in Hertz that the trial court reached its conclusions of fact from a written stipulation. We emphasized certain facts set out in the stipulation. The Supreme Court in reviewing the decision of this court quoted our statement concerning the only facts before the trial court and merely affirmed what we said. The primarily emphasized facts were that the passenger purchasing a ticket on a “meal flight” was assured thereby of a meal of a certain value. In the event the meal was not served in flight, the passenger was entitled to a meal of equal value at the next airport or a cash refund. Upon these primary stipulated facts, we affirmed the conclusion of the trial court that the sale from Hertz to United Airlines was a wholesale sale and not subject to sales tax. That was the only issue that was decided in Hertz. The other issues presented by the appeal were pretermitted, either by this court or by the Supreme Court, because United Airlines was not a party.

In this case, the State has gone so far as to interpret Hertz to hold that all sales of meals, snacks and foods by a caterer to an airline for serving upon its flights are wholesale sales under Alabama law and not subject to sales tax. The State adds as a corollary that therefore the airline sells such meals, snacks and foods to its passengers at retail, the sale occurring at the time of purchasing the ticket. It goes a step further with the unusual contention that it does not matter that the foods that may be ultimately served were not boarded or prepared in Alabama nor that they were not served in Alabama airspace. If the tickets were purchased in Alabama, the sale of the meal or meals was completed and tax is due the State no matter where or when prepared, boarded or served. It’s from this latter contention that the formula for computing tax was derived.

We almost are persuaded that the interpretations of Hertz contended by the State are for the purpose of causing this court embarrassment; however, we opt for the alternate persuasion that there is an honest misunderstanding of Hertz. To finally allay such misunderstanding we say that what we said in Hertz was founded upon the facts stipulated therein and is the law of that case. Contrary to the contention of the State here, the facts of this case are not the same nor does the taxpayer occupy the same position.

The assessment made here was founded upon there being a retail sale of meals, snacks and foods by Delta to its passengers at the time of the sale of the ticket. Therefore, the value of such meals, snacks and foods was subject to Alabama sales tax no matter where they were placed aboard the aircraft nor where they were ultimately served to the passenger. The taxpayer did not contest the assessment upon the issue of whether there was a retail sale, but only as to where a sale occurred and if a tax thereon could be lawfully charged.

The trial court found there were two issues to be determined by its final judgment. They were (1) whether the State may lawfully assess a sales tax on the sale of meals by Delta to its passengers in interstate commerce who purchase their tickets in Alabama; (2) whether the method of assessment was lawful. We have previously stated herein the substance of the court’s findings of fact. In its judgment on the issues, the court stated that “the sales of meals ... are closed and title passes outside the state of Alabama and in interstate commerce and therefore are not subject to Alabama sales tax.”

Considering the theory upon which the assessment was made by the State and upon the theory of the appeal of the assessment as tried before the trial court, the court correctly applied the law to the facts.

Alabama sales tax applies only to sales that are “closed” within the State. Sections 40-23-l(a)(5), -2(1), Code of Alabama (1975). For tax purposes, sales are closed when title to the goods passes to the purchaser. Hamm v. Continental Gin Co., 276 Ala. 611, 165 So.2d 392 (1964); State v. Altec, Inc., 46 Ala.App. 450, 243 So.2d 713 (1971). Actual delivery is of great importance in determining when title passes. State v. Communication Equip. & Contr. Co., 335 So.2d 123 (Ala.Civ.App.1976). Title passes, unless otherwise explicitly agreed, at the time and place of completion of performance by physical delivery of the goods. Section 7-2-401(2), Code of Alabama (1975). Under the stated facts delivery of a meal, if at all, occurs outside Alabama and in interstate commerce. Delta has no contractual obligation to deliver a meal at all. It maintains possession until actually served. Therefore, the trial court did not improperly conclude that the alleged sale was closed and title passes at the time of delivery without the State and was not subject to Alabama sales tax.

The second issue of whether the formula used by the State in determining the tax due is in fact moot after our finding on the first issue. Most of the meals and foods which are served on flights for which tickets are purchased in Alabama are not only not served in Alabama airspace but are prepared and placed on the aircraft at airports outside of Alabama. Those meals and foods are taxed by the states wherein they were boarded. The result is an unconstitutional burden upon interstate commerce and taxes activities carried on beyond the borders of the state in interstate commerce. Evco v. Jones, 409 U.S. 91, 93 S.Ct. 349, 34 L.Ed.2d 325 (1972); J. D. Adams Mfg. Co. v. Storen, 304 U.S. 307, 58 S.Ct. 913, 82 L.Ed. 1365 (1938).

The contention by the State that there is no legal evidence by Delta to overcome the prima facie validity of the assessment is not well taken. The testimony of the tax manager as to the effect of the formula used by the State cannot be dismissed as mere “opinion.” The effect of the use of the formula is evident from its own factors when viewed with the undisputed facts. Furthermore, the case cited by the State to exclude the evidence of the tax manager is not appropriate. See First Nat’l Bank v. State, 262 Ala. 155, 77 So.2d 653 (1954).

In conclusion, in an effort to prevent misunderstanding of this decision, we say that we have affirmed the trial court in its decision on the issues before it as stated in its judgment, i. e., whether the retail sale of meals, snacks and foods by Delta to passengers who purchased their tickets in Alabama but who received and consumed the meals, snacks and foods outside the State and in interstate commerce was subject to Alabama sales tax.

We reiterate that whether the transaction between Delta and its passengers was a retail sale under the facts of this case was not in issue.

The judgment of the trial court is affirmed.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


text:
    Ex parte STATE of Alabama.
    77-339.
    Supreme Court of Alabama.
    March 24, 1978.
   SHORES, Justice.

WRIT DENIED.

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


author: BRADLEY, Judge.

text:
    Jane Gash CLARK v. Feulner Dewitt CLARK.
    Civ. 1339.
    Court of Civil Appeals of Alabama.
    March 29, 1978.

      Philip Henry Pitts and Joseph W. McDowell, Pitts, Pitts & Thompson, Selma, for appellant.
    Charles H. Sims, III, Selma, for appellee.
   BRADLEY, Judge.

This appeal arises from a judgment rendered by the Circuit Court of Dallas County divorcing the parties on the ground of incompatibility of temperament. Appellant contends that the judgment of the trial court should be reversed for the following reasons: (1) the trial court improperly denied appellant’s motion for relief under Rule 60(b) and Rule 59(e), ARCP; (2) the trial court abused its discretion by denying appellant’s request for alimony; (3) the trial court’s award of child support was grossly insufficient; (4) the trial court erred in its refusal to award appellant reasonable attorney’s fees; and (5) the cumulative effect of the trial court’s action in the above stated matters demonstrated an abuse of its judicial discretion.

The record reveals that the parties were married in 1952. Their marital union produced two children. Their oldest child, a son, was in the Navy at the time of the divorce hearing and was fully self-supporting. The remaining child is a teenage daughter. She was in the eleventh grade of high school when the parties obtained their divorce. Both the husband (appellee Feul-ner Dewitt Clark) and the wife (appellant Jane Gash Clark) are in their early to mid-forties and apparently in good health. The wife, however, does have some physical ailments, although these ailments appear to be minor. At the time of the divorce she was employed as a secretary and in this capacity she earned $130 a week. On the other hand, the husband was unemployed. He is a CPA with a degree in accounting from the University of Alabama. During the couple’s marriage he held a number of well-paying and prestigious jobs. In 1975 he earned $25,000. However, he became ill in 1976 and as a consequence his income for that year was reduced to $7,000! In April of 1977 the husband terminated his partnership with another accountant and from that date until the time of the divorce hearing he remained unemployed. Nonetheless, there was a significant amount of testimony that he had attempted to obtain new employment but that his efforts had been unsuccessful.

At the close of the evidentiary phase of the divorce hearing, the trial court divorced the parties on the grounds of incompatibility of temperament. The court awarded the wife almost all of the personal property which the couple owned. The wife received a Dodge station wagon, four bedroom suites, a dining room suite, all the furniture in the living room and den, the household appliances and various books, cooking utensils and silverware. The husband was allowed to retain a 1967 Dodge automobile, a television set, and his personal effects. Moreover, the court decreed that the parties were to share in the proceeds from the sale of their jointly owned real property and in any money which remained in their joint checking account. The proceeds from the sale of the real property were approximately $8,230. However, the court, ordered that $3,000 of the husband’s share of the proceeds was to be placed in a savings account to insure the payment of his obligation to provide child support for his daughter. The husband was directed to pay child support in the amount of $200 a month. Finally, the trial court ordered that both parties would be responsible for paying their own attorneys for the latters’ legal representation. From this judgment the wife appeals.

The first issue raised on appeal involves the wife’s contention that the trial court improperly denied her motion for relief from judgment and/or to amend or vacate the divorce judgment entered by the court. The wife urges that the provisions in Rule 60(b)(1), '60(b)(2), 60(b)(3), 60(b)(6) and 59(e) of the Alabama Rules of Civil Procedure support her contention. Rule 59(e) will not be considered for the motion was filed more than thirty days after entry of the judgment and hence was filed too late.

Rule 60(b) provides that the trial court may relieve a party from a final judgment for mistake, newly discovered evidence, fraud by the adverse party, or any other reason justifying relief from the operation of the judgment.

In the instant case the wife contended that there was an agreement with her husband that all costs, liens and encumbrances would be deducted from the proceeds which resulted from the sale of the jointly owned property. The wife alleged that the property was subsequently sold for the sum of $11,237.84 and that the husband deducted $3,800 from.the proceeds of the sale on the premise that the latter figure represented a lien which existed on the property. In urging the trial court to grant the wife relief from the judgment of divorce, her attorney claimed that the husband misrepresented to the court that a promissory note (which was made payable to a third party) constituted a lien on the couple’s real property. The wife’s .Rule 60(b) motion asserted that she believed that the note belonged to her former husband and that it did not constitute a lien on the property.

After allowing both parties tó present arguments in support of and in opposition to the wife’s motion for relief under Rule 60(b), the trial court denied her motion. The court stated that' it was not led to believe that the $3,800 which was deducted from the proceeds of the sale of the property constituted a lien.- Indeed, the court specifically stated that the wife was examined and cross-examined on the matter at the time of the divorce hearing and that neither attorney had questioned the wife with regard to whether the promissory note constituted a lien on the property. Moreover, the court indicated that it regarded the promissory note as a loan to provide the down payment on the property and not as a lien on the property itself. Accordingly, the trial court refused to find that the husband had perpetrated a fraud on the court or that there existed newly discovered evidence. Likewise, the court refused to accept the argument by the counsel for the wife that his client was mistaken regarding her testimony concerning the promissory note at the time of the trial.

The trial court then refused to allow the wife’s attorney .to reopen the case' and present further evidence on behalf of his client’s cause. The court’s rationale in so holding was that the wife had the opportunity to present such evidence at the divorce hearing but had failed to do so:

Based on the circumstances described above, we do not find that the court erred in denying the wife’s 60(b) motion or that it acted improperly in refusing to permit her attorney to present further evidence in support of the wife’s claims.

In considering a motion for relief under Rule 60(b), the trial court is given wide discretion. In exercising this discretion the court must balance the desire to remedy injustice against the need for finality of judgments. Consequently, the court may deny a Rule 60(b) motion where it finds that: (1) the moving party has not shown good cause for having failed to take appropriate action sooner; or (2) where the litigation would be protracted needlessly due to the inability of the moving party to demonstrate a valid reason for changing the result of the challenged judgment. Rule 60, ARCP, and committee comments thereto. In the present case the trial court determined that the attorney who represented the wife had failed to take appropriate action at the trial although he had the opportunity to do so at that time and that the enforcement of the terms of the divorce decree would be needlessly protracted by any further proceedings. Determinations of this nature were within the discretionary power of the court and we are not persuaded that the court abused its discretion in denying the wife’s motion under Rule 60(b).

The next issue for our review involves the wife’s claim that the trial court erred in its refusal to award her a reasonable amount of alimony. In support of this argument the wife relies on a number of factors which she asserts should be considered in determining whether a wife should be awarded alimony. Although not exhaustive, a list of these factors includes: the future earning capacities of the parties, the duration of the marriage, the conduct of the parties with regard to the cause of the divorce, and the age, health and sex of the parties.

An examination of the record indicates that a number of these as well as other factors might very well have justified an award of alimony to the wife. However, another factor which the trial court may consider before awarding alimony is the husband’s ability to pay. In this instance the husband left an accounting partnership because it was not producing sufficient income to support the husband and his partner. As a consequence of this action the husband was unemployed at the time of the parties’ divorce and there was no indication that his future job prospects were good. Nor was there any evidence that the husband was receiving income from a source of another nature. Moreover, the trial court awarded the wife almost all of the parties’ personal property and one-half the proceeds from the sale of their real property. In addition, the husband was ordered to pay $200 a month in child support and three-fourths of the $4,000 he received as a result of the sale of the parties’ jointly owned property was placed in an account to secure the payment of this obligation. In view of these facts and the husband’s financial circumstances at the time of the divorce, there remained little else for the wife to receive.

A trial court has the discretion to refuse to award periodic alimony to a wife. Rosser v. Rosser, Ala.Civ.App., 352 So.2d 1145 (1977). See Searcy v. Searcy, Ala.Civ.App., 340 So.2d 1134 (1976). And if the ore tenus rule is applicable, the trial court will not be reversed for denying the wife the right to receive alimony in the absence of a clear and palpable abuse of its discretion. Caldwell v. Caldwell, 54 Ala.App. 479, 309 So.2d 833 (1975); Meyers v. Meyers, 55 Ala.App. 697, 318 So.2d 725 (1975). In the instant case the proceedings before the trial court were heard ore tenus. And in view of the evidence, we can find no abuse of discretion in the court’s failure to grant periodic alimony.

The same conclusion must likewise be reached in regard to the wife’s contention that the trial court erred in its refusal to award her a reasonable attorney’s fee. Such an award, like alimony, is for the discretion of the trial court and the court will not be reversed unless the record before us affirmatively demonstrates that the trial court clearly abused its discretion in denying the wife an attorney’s fee. Pruett v. Pruett, Ala.Civ.App., 333 So.2d 580 (1976). Given the husband’s lack of income, we are unable to find a clear abuse of discretion in the court’s refusal to award the wife attorney’s fees.

The wife also asserts that the trial court’s award of child support was grossly insufficient. However, as we have noted earlier the husband was ordered to provide $200 a month for the support of his minor daughter. In addition, he was directed to place $3,000 in an account to secure the payment of this obligation. Based on the record before us we are not persuaded that an award of child support in the sum of $200 a month was an inadequate amount.

Finally, the wife argues that the cumulative effect of the trial court’s refusal to award alimony and attorney’s fees, and the “inadequate” amount of child support it provided, demonstrates an abuse of judicial discretion on the part of the court. However, we do not agree. In view of the relative circumstances of the parties we cannot say that the trial court abused its discretion in regard to any of these matters, whether considered separately collectively. Therefore, we affirm.

Motion for award of attorney’s fee on appeal is denied.

AFFIRMED.

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