author: HOLMES, Judge.

text:
    Sheryl Y. MARTIN, a minor suing by and through her father and next friend, Willie C. Martin v. AUTO-OWNERS INSURANCE, a corporation, and Adolph Reese.
    Civ. 735.
    Court of Civil Appeals of Alabama.
    March 24, 1976.

      Richard W. Whittaker, Enterprise, for appellant.
    Lee & Mclnish, and Alan C. Livingston, Dothan, for appellee, Auto-Owners Ins., a Corporation.
   HOLMES, Judge.

This is an appeal from the Circuit Court of Coffee County. The trial court granted defendant-insuror’s motion for summary judgment, and plaintiff appeals.

The issue is whether the evidence before the learned trial court presented a genuine issue of material fact. We find that the evidence does present a genuine issue of material fact, and reverse the cause.

The pertinent facts as revealed by the record before this court are as follows:

Defendant Adolph Reese was insured by defendant Auto-Owners Insurance Company. The insurance policy contained the following provisions:

“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 . . .
“Under Coverages A, B and D, no action shall lie against the Company unless, as a condition precedent thereto, the insured shall have fully complied with all the applicable conditions hereof,

On November 20, 1971, Reese while driving his automobile was involved in a collision in which the minor plaintiff Sheryl Y. Martin was injured. Negotiations ensued between defendant-insuror and plaintiff’s father. These negotiations continued on an intermittent basis through the following November, during which time plaintiff’s medical records were obtained by defendant-insuror. The parties were unable to reach an agreement, and on November 20, 1972, plaintiff filed suit against Reese. Plaintiff on March 6, 1973, obtained a default judgment against Reese in the amount of $4,500.

Plaintiff attempted to collect this judgment from defendant-insuror, but was unable to do so. Plaintiff then, on October 3, 1973, filed this lawsuit against defendant-insuror, seeking to collect her default judgment against Reese. Defendant-insu-ror asserted the defense that Reese failed to immediately forward to defendant-insu-ror plaintiff’s summons and complaint in the action against him, as is required by the policy provisions quoted above.

Both parties moved for summary judgment under Rule 56, ARCP. Rule 56 provides in pertinent part:

“The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. . . .”

Defendant-insuror supported its motion with an affidavit by one of its adjusters attesting that it had not received the summons and complaint in plaintiff’s action against Reese until April 18, 1973, over one month after the default judgment was entered. Rule 56(e), ARCP, provides that when a motion for summary judgment is supported by affidavits, the adverse party may not rest upon the allegations of his pleading, but must produce documents showing that there is a genuine issue for trial. If he does not do so, summary judgment may be entered against him.

The only such document produced by plaintiff was the deposition of Adolph Reese. The portions of Reese’s deposition which are critical here are set out below. On direct examination Reese testified as follows :

“Q At the time these suit papers were served on you what did you do with them?
“A Carried them to the insurance office.
......
“Q Now, how long after receiving those suit papers was it before you carried them down to the insurance agency ?
“A It wasn’t long. I probably got them that week, see I was working out of town and when I would get home that Monday I would stay off and carry them to the insurance office.
“Q So it wasn’t more than a week then?
“A No, sir, it wasn’t over a week.”
On cross-examination, the testimony was:
“Q Mr. Reese, as a matter of fact didn’t you deliver these suit papers to Mr. Dunn and Mr. Dunn carried the suit papers to the Farmers and Merchants Insurance office on April 18th, 1973?
“A I don’t know about that now, boss man.
“Q Did you deliver the suit papers or did Mr. Dunn deliver the suit papers?
“A Mr. Dunn might have delivered that, I mean them for me. Been so long I disremember, you know.
“Q Well, you testified earlier that you delivered them. Were you mistaken when you said that ?
“A I must have been on that case then.”
The pertinent testimony on redirect examination was as follows:
“Q Then are you positive that you took the suit papers that were first served on you to the insurance agency’s office?
“A Right.
“Q What is your answer to the question?
“A I carried them.”
On recross Reese testified:
“Q . Now, did you carry them by or did Mr. Dunn carry them by or do you know.
“A I know about all the suit papers. That there one now I don’t—
“Q The first suit papers, which is the only one we are talking about right now.
“A (No answer.)
“Q You don’t know?
“A No, sir, I don’t know about that.”
On redirect Resse testified:
“Q . . . I am asking you right after the suit papers were served on you did you take some papers that were served on you down to the ladies in the Farmers Insurance agency?
“A Yes, sir, right after I was served.”
On recross:
“Q . Mr. Reese, the first set of suit papers that were delivered to you did you take them by yourself to Farmers and Merchants or did Mr. Dunn take them by?
“A I told you I don’t know, boss man.”
On redirect:
“Q When you were first sued and the sheriff left some papers with you did you within a week take all or some of those suit papers to the Farmers and Merchants Bank—
“Q The insurance agency and leave it with some ladies there ?
“A All I got I carried them. All I can remember I carried them to the insurance office.”

The learned trial judge denied plaintiff’s motion, and granted the motion for summary judgment of defendant-insuror.

Counsel for plaintiff-appellant contends in brief that the portions of Reese’s deposition set out above present a scintilla of evidence that Reese complied with the policy provisions, and thus raise a genuine issue of fact for trial. Appellee-insuror argues that the testimony shows Reese did not know what happened to the summons and complaint, and that therefore, in view of the other evidence noted above, no genuine issue of a material fact is presented thereby.

It is the law of Alabama that notice is a condition precedent to the liability of the insuror where the insurance policy contains provisions such as those pertinent here. American Fire and Casualty Co. v. Tankersley, 270 Ala. 126, 116 So.2d 579.

We initially note that summary judgment cannot be granted if there is a scintilla of evidence supporting the position of the party against whom the motion is made. Folmar v. Montgomery Fair Company, Inc., 293 Ala. 686, 309 So.2d 818.

As seen from the above, Reese contradicts himself in his testimony as to whether he promptly delivered the suit papers to defendant-insuror. One view of the evidence is he has stated that he did so, that he cannot remember having doné so, and that he was mistaken when he (Reese) testified he did deliver them. To find as the trial court found, and as defendant-insuror contends, would require this court to reach the conclusion that Reese’s contradictory statements are testimony that the summons and complaint were not in fact delivered. However, to make such a finding is to weigh the opposing statements and choose between them, which is not the function of the court on motion for summary judgment. Wright and Miller, Federal Practice and Procedure: Civil § 2728.

Contradicting evidence making out a jury case may be presented by the direct-and cross-examination of one witness. Dean v. Mayes, 274 Ala. 88, 145 So.2d 439. The fact that a witness’s testimony is contradicted furnishes no basis for rejecting that testimony. Otinger v. State, 53 Ala.App. 287, 299 So.2d 333. As such, the contradiction in Reese’s statements presented a genuine issue for trial. The learned trial judge in effect gave weight to one version of Reese’s testimony over the other, and by so doing resolved the conflict presented by that testimony. The trial judge’s role is not to resolve such factual issues, but to determine if a triable issue exists. Wright and Miller, supra, § 2728.

In view of its contradictory nature, we cannot say Reese’s testimony did not present a scintilla of evidence that Reese promptly delivered the suit papers. A tria-ble issue therefore existed, so that the learned judge erred by granting defendant-insuror’s motion for summary judgment.

In view of our disposition of the above issue, it is not necessary nor do we deem it appropriate that we discuss other matters raised in appellant’s brief.

The case is accordingly due to be reversed and remanded.

REVERSED AND REMANDED.

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


source: Caselaw Access Project

license: Public Domain

text:
    Ida Ruth MARTIN v. AUTO-OWNERS INSURANCE, a corporation, and Adolph Reese.
    Civ. 733.
    Court of Civil Appeals of Alabama.
    March 24, 1976.
    Richard W. Whittaker, Enterprise, for appellant.
    Lee & Mclnish and Alan C. Livingston, Dothan, for appellee Auto-Owners Ins. Co.
   HOLMES, Judge.

The facts and issues involved in this appeal are identical to the facts and issues involved in Martin v. Auto-Owners Insurance, 57 Ala.App. -, 329 So.2d 547, decided this date and designated Civ. 735.

In view of our decision in Martin v. Auto-Owners Insurance, this case is due to be reversed and remanded.

REVERSED AND REMANDED.

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


text:
    Hiram BRACEWELL, Individually, and Southeastern Cabinet Company, a Subsidiary of Bracewell Homes Corp. v. Kenneth BRYAN.
    Civ. 598.
    Court of Civil Appeals of Alabama.
    March 31, 1976.

      J. Ronald Storey, Dothan, for appellant.
    J. R. Herring and Buntin & Cobb, Doth-an, for appellee.
   HOLMES, Judge.

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

The jury found in favor of plaintiff-ap-pellee Kenneth Bryan on the fraud count of plaintiff’s complaint, and against defendant-appellant Hiram Bracewell, individually, and d/b/a Southeastern Cabinet Company. Defendant prosecutes this appeal.

The issues on this appeal are whether the learned trial court erred by not granting defendant-appellant’s motions for a directed verdict and for judgment notwithstanding the verdict or a new trial.

The pertinent facts as revealed by the record are as follows:

The defendant Southeastern Cabinet Company is a cabinet manufacturing concern and a wholly owned subsidiary of Bracewell Homes Corporation, a corporation. Hiram Bracewell is the major stockholder of Bracewell Homes, and president of Southeastern Cabinet Company.

Plaintiff Bryan in April of 1972 applied for and subsequently obtained employment with Southeastern Cabinet Company. After approximately one year, his employment was terminated. His contentions are that at the time he was hired he was promised a 4% commission on all sales he made, that he did in fact make sales, and that he never received the promised commissions.

Defendant argues that Bryan was never promised any commissions, was not hired as a salesman, and never made any sales for the company.

Bryan testified that he was informed the company was looking for a salesman when he first applied for employment. He further testified that when he was hired he was told by Bracewell he would begin selling after an initial training period, for which sales duties he would receive a salary plus a 4% commission, use of an automobile, and reimbursed expenses.

Further testimony by Bryan was that he made substantial sales of cabinets to contractors engaged in various construction operations.

Bryan also testified as to certain remarks made by his superiors at the company concerning commissions. On more than a dozen occasions he asked his immediate supervisor, Larry Maynard, sales manager of the company, when he would begin receiving his commissions. Maynard replied Bryan would have to discuss the matter with Bracewell. Bryan on one occasion made the same inquiry of Maynard’s superior, one Barrett, who responded he did not know what was going on. After Bryan had been employed for approximately six months, he was summoned by Brace-well, who informed him the cabinet business was apparently going to make it and that his commissions from that point on would vary.

As stated earlier, after about one year of employment Bryan was fired by Maynard the sales manager. Bryan testified that after he was fired he asked Bracewell for his commissions and was informed he was owed no commissions.

Bryan’s father testified he had a telephone conversation with Bracewell shortly after Bryan applied for employment. Brace-well during this conversation discussed Bryan’s then prospective employment with Bryan’s father. The father testified that Bracewell stated Bryan would be paid a commission.

The defendant’s testimony, through Brace-well, Barrett, and Maynard, was substantially that Bryan had never been promised commissions, was never employed as a salesman, and had never in fact made any sales. The testimony was that Bryan’s duties involved preparation and submission of bids to contractors, but that he never actually made any sales of cabinets to those contractors.

Maynard further testified that any discussions he had with Bryan concerning commissions were purely of a speculative nature.

Bracewell testified he had discussed commissions with Bryan and Bryan’s father. However, his testimony was that he told them Bryan would be paid commissions only when he had gained sufficient experience to earn his living strictly from commissions, and when Bryan was in fact placed on such a basis.

The case was submitted to the jury on two contract counts, each alleging defendant owed plaintiff $8,000 in commissions, and one fraud count claiming $8,000 compensatory and $50,000 punitive damages. The jury found for plaintiff on the fraud count and fixed his damages at $10,000. Judgment was entered on the verdict, and defendant appeals therefrom.

Defendant initially contends the trial court erred in allowing the case to go to the jury on the issue of fraud. The same contention is made as regards the issue of punitive damages.

The evidence is in conflict as to whether Bryan was employed as a salesman and made sales, and as to whether he was promised commissions. The resolution of conflicting evidence is the province of the jury. See 18A Ala.Dig. Trial Key 143 and cases cited thereunder. The determinative issue is thus whether the evidence is sufficient to support a finding of fraud.

It is settled law that for fraud to be predicated on a promise, the promisor at the time of making the promise must have intended not to perform it and to deceive the promisee thereby. Walker v. Woodall, 288 Ala. 510, 262 So.2d 756; Nelson v. Darling Shop of Birmingham, 275 Ala. 598, 157 So.2d 23.

The existence vel non of an act of fraud is generally a fact question for the jury. Mid-State Homes, Inc. v. Holt, 52 Ala.App. 415, 293 So.2d 476. This is particularly so with regard to the element of intent. As our supreme court said through Chief Justice Heflin in Walker v. Woodall, supra:

“Intent is an act or emotion of the mind seldom, if ever, capable of direct proof, but is determined by such just and reasonable deductions from the acts and facts presented as the guarded judgment of a reasonably prudent and cautious man would draw therefrom. Hagerty v. Hagerty, 186 Iowa 1329, 172 N.W. 259, 260. Intent is a matter peculiarly within the province of the trier of facts, in this case the jury.” (288 Ala. at 513, 262 So.2d at 759)

The failure to perform alone is not of itself evidence of intent not to perform at the time the promise was made. Brock v. Brock, 90 Ala. 86, 8 So. 11. However, such failure may be considered together with other circumstances in reaching the determination as to whether the requisite intent existed at the time the promise was made. Brock v. Brock, supra; 37 Am.Jr. 2d Fraud and Deceit § 447.

We are of the opinion that the evidence as set out above, when considered in its totality, is sufficient for the jury to have inferred from it that Bracewell had the requisite intent to deceive at the time he promised commissions to Bryan. The failure of Bracewell to perform, Bryan’s numerous unanswered inquiries, and Brace-well’s remark to Bryan that hi's commissions would from that point vary, when viewed as a whole, do not unreasonably lead to the conclusion that Bracewell never intended to perform his promise.

Of particular import is Bracewell’s statement that Bryan’s commissions would vary, made some months after the initial promise. In Walker v. Woodall, supra, the court stated:

“However, aside from appellants’ failure to perform, this Court feels there was sufficient evidence introduced upon which the jury could infer the requisite intent. For example, the evidence tends to show that later, after Walker agreed to fully insure Woodall’s truck, he stated to Woodall that his truck was, in fact, fully insured. This testimony was corroborated by A. L. Johnson, president of the bank that financed Woodall’s truck, who testified that Walker told him ‘I’ll assure you that it’s (the truck) fully covered;’ From this evidence,'which could have been interpreted as a later misrepresentation, the jury could also infer that Walker did not intend to have the truck insured at the time he promised to do so.” (288 Ala. at 513, 514, 262 So.2d at 759)

The jury here could similarly have interpreted Bracewell’s remark as a later misrepresentation, and inferred from it the requisite intent.

We thus hold that the trial court did not err in submitting the issue of fraud to the jury.

We also hold that the trial court did not err in allowing the jury to receive the issue of punitive damages. In Alabama, punitive damages are recoverable where the fraud is committed with the intention to injure and deceive. Pettus v. Shafer, 286 Ala. 625, 244 So.2d 573; Hall Motor Co. v. Furman, 285 Ala. 499, 234 So.2d 37; J. Truett Payne Co. v. Jackson, 281 Ala. 426, 203 So.2d 443. The oft-cited case of Coffey v. Ala. Machinery & Supply Co., 19 Ala.App. 189, 96 So. 454, appears to have originated the doctrine.

The intent to deceive is requisite to a finding of fraud in cases such as this where fraud is sought to be based upon a promise. As discussed above, there is evidence from which the jury could have inferred such intent. Therefore, there was no error committed by the trial court in submitting the punitive damages issue to the jury.

Counsel for defendant-appellant finally contends the trial court erred in not granting his motion for judgment notwithstanding the verdict' or for a new trial, on the ground that the verdict is contrary to the preponderance of the evidence. We disagree. The discussion of the evidence set out above is also apt in this regard.

We lastly note counsel for the appellee has filed a motion to strike the record in this cause. As grounds for this motion, he asserts that the record was not timely filed.

It appears from the record that the trial court extended the time in which the transcript of evidence could be filed. When the extension expired, apparently some time elapsed before the trial court granted a motion ordering the court reporter to prepare and file a transcript by a set date. However, the trial court is empowered to grant a subsequent extension after the expiration of prior allotted time, if the moving party is not the cause of the delay and the opposing party is not prejudiced thereby. Tit. 7, §§ 827(1), 827(la), and 827(4), Code of Ala. 1940; Stevens v. Thompson, 279 Ala. 232, 184 So.2d 140. We construe the order to the court reporter as a subsequent extension of time, and note that the movant caused no delay and that no prejudice inured to the opposing party. The court reporter filed the record within the time set by the trial court’s order. The record was then properly filed with this court within sixty days after its establishment in the trial court. Supreme Court Rule 37.

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

AFFIRMED.

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


author: WRIGHT, Presiding Judge.

text:
    WINN-DIXIE MONTGOMERY, INC. v. Joe R. HOLT and Molly F. Holt.
    Civ. 590, Civ. 590-A.
    Court of Civil Appeals of Alabama.
    March 3, 1976.
    Rehearing Denied March 31, 1976.

      Davies, William & Wallace, Birmingham, for appellant.
    John E. Lunsford and Lawrence B. Clark, Birmingham, for appellees.
   WRIGHT, Presiding Judge.

Verdict and judgment for plaintiff in two cases consolidated for trial are appealed by defendant. We affirm.

Joe R. Holt and Molly Holt filed suits for damages arising out of an automobile accident in which Molly Holt was injured and the automobile of Joe Holt was damaged.

The accident occurred on June 6, 1973, on U. S. Highway 31 in Montgomery County. At the place of the accident Highway 31 is four lane with a grass median separating the north and southbound lanes. It had rained steadily all day and was raining at the time of the accident just after noon. Molly Holt was traveling north from Montgomery toward Birmingham in the right lane of the northbound traffic lanes. She was driving a new Ford automobile purchased at Auburn, Alabama that morning.

Defendant’s driver was traveling south toward Montgomery driving an empty tractor-trailer unit. His testimony was that he was traveling in the lane nearest the median, passing or having just pasáed another vehicle traveling in the outside lane going in the same direction.

While driving his unit in a straight line, defendant’s truck began to skid and the trailer jackknifed. The unit came into, through and across the grass median into the northbound lanes of the highway. Some part of the unit struck the Holt automobile. At the time of impact, the Holt car was all or partially off the pavement onto the shoulder of the highway and was stopped. .Mrs. Holt had seen the truck as it began to skid and come toward her across the median and had pulled as far to her right as she could without going into a deep ditch. After impact, defendant’s truck and trailer traveled another 50 feet back into the median and came to a stop in a jackknifed position.

Defendant’s driver stated he was traveling 40 to 45 miles per hour at the time the skid began. He had done nothing to the unit to cause it to veer from a straight line and begin to skid. He knew the highway was wet and contained pools of water. He had driven loaded from Montgomery to Tuscaloosa before dawn. There he was unloaded and began his return to Montgomery. It had rained on him all the way. The tires and mechanical condition of the truck were good. He knew that his truck hqd a tendency to skid on wet pavement. He knew of no cause for its skidding. The grass median was wet and soft. The truck left visible tracks through the median bringing large amounts of mud, grass and rock with it onto the north lanes of the highway and back into the median where it stopped.

After hearing the evidence and the court’s charge the jury returned a verdict for Mrs. Holt in the sum of $2,250.00 as damage for her injuries. Verdict for Mr. Holt was $1,800.00 for property damage, medical costs and loss of services of Mrs. Holt. At the close of plaintiff’s evidence and after resting, defendant moved for a directed verdict. These motions were denied. After judgment defendant moved for a new trial. That motion was denied.

Defendant submitted 21 assignments of error. Of these, 13 assignments charge error in the refusal of requested instructions. Assignments 11 and 21 are not argued in brief and are waived. R. C. Bottling Company v. Sorrells, 290 Ala. 187, 275 So.2d 131. Rule 51, ARCP denies the right to assign as error on appeal the refusal of requested written charges unless the requesting party states objection together with grounds therefor at the close of the oral charge and before the jury retires to consider its verdict. An examination of defendant’s objection to the court’s charge fails to indicate objection to the refusal of any specific written charge. The objections stated and the grounds given cannot apply to charges referred to in assignments, 1, 6, 7, 10, 12, 13, 14, 15, 16, 17, 18, 19 and 20. These assignments are not for consideration on appeal. Rule 51 ARCP.

Assignment of error 2 complains of refusal of the following written charge:

“I charge you that you are authorized to consider as a measure of damage in personal property such as an automobile, the amount it would take to repair said automobile, to place it in the same or like condition it was before damage.”

In support of its argument that Charge 2 was improperly refused defendant cites the case of Dean v. Johnston, 281 Ala. 602, 206 So.2d 610. That case involved damages to a commercial vehicle. The measure of damages is not the same as in the case involving a non-commercial vehicle. Defendant also cites the case of Austin v. Tenn, Biscuit Co., 255 Ala. 573, 52 So.2d 190. That case stated the following principle which is the law applicable to this case:

It can readily be seen that there is a distinction between the requested charge and the rule enunciated by Austin v. Tenn. Biscuit Co., Supra. The cost of repairs is not the measure of damages, but may be shown as a means of establishing such measure. The court stated the rule of Austin in its oral charge and the refusal of the requested Charge 2 was not error.

“The general rule is that the measure of damages for injury to an automobile is the difference between the market value of the automobile immediately before the accident and its market value immediately after. . . . The difference between the value of an automobile before and after an injury may be shown by proof of a reasonable cost of restoring it to its original condition. Webb v. O’Kelly, 213 Ala, 214, 104 So. 505.”

Assignment of error 3 addresses the oral charge concerning the evidence of repair costs. The court charged as follows:

“Again, not commenting on the evidence, because that is not my job, but I will say the evidence has been presented to you and regarding the question of repair estimates or repair bills, the jury is authorized and may consider the testimony in that regard in viewing the credibility of the testimony regarding fair market value as to whether it is reasonable or unreasonable. That is for you to say.”

Though not an explicit statement of the relation of repair cost to fair market value as is found in Austin, we see no prejudice to defendant in the charge. It appears to us that the court merely said that the jury could lay the testimony as to repair costs alongside the testimony of plaintiff as to market value before and after to determine if such testimony was credible, was reasonable or unreasonable. Thus, the jury could use repair costs in determining damages. We find no prejudicial error in the charge obj ected to. Rule 45, ARAP.

Defendant objected to the court’s oral charge on the ground that it failed to charge a breach of duty, as an essential element of plaintiffs’ right of recovery. Defendant requested no such written charge. The case of Stokely-Van Camp, Inc. v. Ferguson, 271 Ala. 120, 122 So.2d 356 cited by defendant in support of his argument that failure to include such charge was error is not a case relating to a jury charge. It is rather a case concerning the material allegations of a common law complaint on negligence. It was stated there that there are three essential elements necessary to a right of recovery in an action for negligence. “First, a duty owing from defendant to plaintiff; second, a breach of that duty; and third, an injury to the plaintiff in consequence of that breach.” This is a textbook statement of common law pleading and proof. We certainly have no quarrel with it. However, we have no complaint here as to pleading and proof but rather to an omission in an oral charge. There was no question that the proof showed that the accident occurred on a public highway. The driver of a vehicle traveling upon a public highway owes a duty to others lawfully thereon not to negligently cause or allow his vehicle to collide with them. Williams v. Pope, 281 Ala. 382, 203 So.2d 105. There can be no dispute from the evidence that Winn-Dixie owed a duty to Mrs. Holt not to negligently injure her and to Mr. Holt not to negligently injure his wife or damage his automobile. The evidence presented no question or conflict as to whether a duty was owed the Holts by Winn-Dixie. Winn-Dixie could have suffered no injury by the omission of such charge. Rule 45, ARAP.

Defendant next charges error in the refusal of its request for directed verdict on the ground that the evidence failed to prove negligence by defendant. Defendant submits that the testimony is devoid of any act of the driver which indicates negligence. The truck was being operated within the posted speed limit, on a straight road with no mechanical defects and with no action of defendant being shown to have caused the skid which brought injury and damage to plaintiffs. Defendant submits that the injury and damages of plaintiffs occurred when defendant’s truck unexplainedly skidded without showing negligent operation by the defendant. The case of National Biscuit Co. v. Neilson, 256 Ala. 241, 54 So.2d 492 is cited as authority for the proposition that the mere showing of skidding does not establish negligence.

National Biscuit does discuss skidding and skidding cases from several jurisdictions. That case contains quotations from the case of Kaczmarek v. Murphy, 78 Ohio App. 449, 70 N.E.2d 784. A part of that quotation is as follows:

“The mere skidding of an automobile on an icy street does not necessarily prove negligence of the driver of the car. .
.“For, while proof that the car skidded is not necessarily proof of its negligent operation, proof of circumstances which so connect the skidding with such operation that reasonable minds could reach different conclusions as to whether the car was operated properly, makes a case for a jury. . . .”

The opinion in National Biscuit said:

“But it is also the general rule that one driving on a slippery highway must take that condition into consideration and if there is evidence tending to show that the skidding was superinduced or accelerated by him, then it is for the jury to determine whether or not the skidding resulted from the driver’s negligence.” (Citations omitted.)

It is true that the evidence in this case presents no direct proof of an act of negligence by defendant’s driver. However, negligence does not require direct proof but may be inferred by a jury from circumstances out of which the injury arose. Mobile Press Register, Inc. v. Padgett, 285 Ala. 463, 233 So.2d 472. In this case, there was evidence that at the time of the accident it was raining and had been raining all day; there were pools of water on the highway. The driver knew his vehicle tended to skid on wet pavement. Though the truck was said to be traveling within the posted speed limit, the truck skidded, jackknifed, crossed the median sideways leaving deep tracks in the mud and grass, throwing mud, grass and rocks across the northbound lane of traffic.. It struck plaintiffs’ automobile, continued to skid for another 50 feet back into a jackknifed position in the median before coming to rest. The truck had just come off a one-lane bridge following another vehicle, but prior to the accident had overtaken and was passing the other vehicle at the time it began to skid.

It is from these circumstances that the jury could reasonably infer that the driver of defendant’s vehicle failed to meet the conditions surrounding him as he traveled on a wet highway operating a vehicle, known by him to have a tendency to skid, as an ordinary prudent man would meet them.

In considering the propriety of a directed verdict, the tendencies of the evidence are viewed most favorably to the plaintiffs. If the evidence and reasonable inferences the jury is free to draw therefrom furnish a mere scintilla of negligence, the case must go to the jury. Unless the evidence is entirely free from doubt or adverse inference the question is for the jury. Ala. Power Co. v. Guy, 281 Ala. 583, 206 So.2d 594; National Biscuit Co. v. Wilson, Supra; Chesser v. Williams, 268 Ala. 57, 104 So.2d 918. We find no error in refusal of the motion for directed verdict of defendant.

All of the grounds contained in the motion for new trial in each case have been argued and considered in various assignments of error. Therefore, there was no error in denying the motions for new trial.

The judgment below is affirmed.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


text:
    John C. STACK and Peggy Stack v. The HANOVER INSURANCE COMPANY, a corporation.
    Civ. 703.
    Court of Civil Appeals of Alabama.
    March 24, 1976.
    Cassady & Fuller, and M. Dale Marsh, Enterprise, for appellants.
    Dunn, Porterfield, Scholl & Clark, and Larry W. Harper, Birmingham, for appel-lee.
   WRIGHT, Presiding Judge.

Plaintiffs appeal from a judgment for defendant after suit upon a home owners insurance policy.

The home of plaintiffs in Enterprise was entered by a large female deer. The deer gained entry by crashing through sliding glass doors in the den. It exited by crashing through a bedroom window. The aftermath was extensive damage to door, window, furniture, carpet and drapes.

Plaintiffs claimed loss to the insured property under the vandalism provision of their policy with defendant which read as follows:

“9. Vandalism or Malicious Mischief, meaning only the wilful and malicious damage to or destruction of the property covered. . . .”

The court, upon motion by defendant, directed a verdict in favor of defendant. Motion for new trial was overruled.

The ruling of the trial court on each motion is charged as error. We affirm.

Though citing no case in which destruction of insured property by the independent act of an animal has been considered in relation to vandalism as defined in an insurance policy, counsel for plaintiffs has presented some unique and interesting arguments to the court. However, we cannot accept counsel’s contentions in view of the plain and unambiguous words of the policy.

It was pointed out in the case of Great American Ins. Co. v. Dedmon, 260 Ala. 330, 70 So.2d 421, that the word vandalism is derived from the Vandals, a Germanic people who in the 4th and 5th centuries overran much of Europe and Africa, willfully and purposely destroying many objects of art and literature. Webster’s Third New International Dictionary defines vandalism as the “willful or malicious destruction or defacement of things of beauty or of public or private property.”

There is no question but that the popular meaning of vandalism is the intentional and malicious destruction of property. Such act requires a human mind capable of forming the requisite intent of committing a wrongful act, resulting in senseless destruction or damage to property either public or private. Unkelshee v. Homestead Fire Ins. Co. of Baltimore, 41 A.2d 168 (D.C.Mun.App.); Great American Ins. Co. v. Dedmon, supra.

An animal, such as a deer, to the human mind, and in law, is incapable of forming an intent to commit a wrongful act or to act maliciously. An animal, nonhuman, acts or reacts instinctively without knowledge of right or wrong as defined by man.

In the popular connotation of vandalism it is clear that the destruction of plaintiffs’ property by the independent action of the deer in this case does not fall within the terms of the policy of insurance. An insurance policy without ambiguity in its terms must be enforced as written. Southern Guaranty Ins. Co. v. Wales, 283 Ala. 493, 218 So.2d 822.

AFFIRMED.

BRADLEY and HOLMES, TJ., concur.


text:
    UNITED SERVICES AUTOMOBILE ASSOCIATION v. Joseph B. SMITH.
    Civ. 732.
    Court of Civil Appeals of Alabama.
    March 24, 1976.

      Ford, Caldwell, Ford & Payne and W. Stanley Rodgers, Huntsville, for appellant.
    Gary K. Grace, Huntsville, for appellee.
   WRIGHT, Presiding Judge.

Defendant appeals from a judgment permitting stacking of medical benefits in a policy of automobile insurance wherein four automobiles were insured and separate premiums charged for medical benefits as to each vehicle. We reverse.

Plaintiff received injuries in an accident while operating one of four automobiles insured by defendant in a single policy of insurance. As a result of his injuries plaintiff incurred medical costs of over $8,000.00. Plaintiff’s policy of insurance contained an endorsement, the pertinent portions of which are as follows:

“PART II — COVERAGE C-l MEDICAL BENEFITS
“INSURING AGREEMENTS
“COVERAGE C-l-MEDICAL BENEFIT
“To pay to the insured, who becomes legally obligated to pay therefor, all reasonable expenses for necessary prosthetic devices, medical, surgical, X-ray, dental, ambulance, hospital, professional nursing and funeral services actually rendered within two years from the date of accident, subject to the limit of liability stated in the Declarations.
“DEFINITIONS. The definitions under PART I of the policy apply to this endorsement and under this endorsement.
“LIMITS OF LIABILITY. The limit of liability stated for Coverages C-l, C-2, C-3, and C-4 in the Declarations as applicable to ‘each person’ is the limit of the company’s liability for all benefits to accrue to each person who sustains bodily injury as the result of any one accident. The inclusion of more than one automobile under Item 3 in the Declarations of the policy, or the issuance to the same named insured of two or more policies with this endorsement, shall not operate to increase the limit of the company’s liability per person beyond that stated in the Declarations.”

After claim, defendant issued to plaintiff its draft for $2,000.00, representing the maximum medical benefits stated in Coverage C-l of the policy declaration to be payable per person for one accident. Plaintiff refused to accept the draft and filed suit claiming the maximum benefit for each vehicle insured under the policy or a total of $8,000.00. The trial court, after agreed stipulation of fact by the parties, granted judgment for plaintiff for $8,000.00.

Defendant appeals. The issue on appeal is: Do the terms of the policy permit or authorize the insured to collect the sum of the medical benefits declared to be payable for each vehicle insured in the policy? In the vernacular, does the policy permit stacking of medical benefits when more than one vehicle is insured ?

This is a case of first impression in Alabama. Stacking of benefits in a policy or of policies providing uninsured motorist coverage was first permitted in Alabama in 1970, with the decision of the Supreme Court in the case of Safeco Insurance Co. of America v. Jones, 286 Ala. 606, 243 So. 2d 736. That decision has been followed by many others involving claims arising from uninsured motorist coverage. We will not set out those citations. Contrary to one of plaintiff’s points of argument, we are convinced there is no corollary between the basis for stacking in uninsured motorist cases and the issue of the case at hand.

Stacking of uninsured motorist coverage is founded upon the statute requiring automobile insurers to provide such coverage. Title 36, Section 74(62a) Code of Alabama (1941). Plaintiff has stated in brief that there is no provision in the statute which “requires or even suggests that uninsured motorist coverage should be ‘stacked’.” He further states,

“All that this Code section does is set up the legal requirement that insurers provide uninsured motorist coverage unless the named insured specifically rejects said coverage in writing. Therefore, even though many of the . . . cases cite this Statute as requiring the ‘stacking’ . . . , this statute, in fact, does not require that said coverage be ‘stacked’.”

We agree with plaintiff that the statute does not “require or even suggest” “stacking.” However, the statute does require the insurer to provide in its policy coverage “with respect to any motor vehicle registered or principally garaged in this state . . . for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles because of bodily injury, sickness or disease, including death, resulting therefrom.” The appellate courts of this state and a majority of the other states which have similar statutes, have construed the legislative purpose of the statute to be that an insured, under every such required coverage for which a premium has been paid, is entitled to collect within the limits of the policy, all damages which he is “legally entitled to recover.” Since the statute does not include exceptions or exclusions, it has been determined that none were intended to be permitted.

Plaintiff has argued that the key to permitting stacking in uninsured motorist cases is not the statute but the phrase often used by the courts in the cases — “coverage for which the premium has been paid.” We do not agree with that argument. Such phrase has been used often, but only in relation to payment of the premium for the statutorily required coverage. Justice Merrill said in Safeco, “The key words in our statute are ‘coverage’ . . . for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles.”

It is clear that there is no valid analogy between coverage statutorily required and that obtained in a freely negotiated contract.

Defendant submits that the issue in this case is to be determined by the rules of construction of insurance contracts. We perceive that defendant is correct.

There are a number of cases from other jurisdictions which have construed policies covering more than one automobile with medical pay benefits attending each automobile with specified premium charge for each, as permitting stacking. These cases have been decided by applying rules for construction of insurance contracts. None of the policies in these cases have contained language comparable to that of the policy before us. Without attempting analysis on an individual case basis here, it is our conclusion that the courts construed the policies most favorably to the insured because of the presence therein of conflicting and/or ambiguous provisions.

An examination of plaintiff’s policy discloses no ambiguity. A reading of the medical benefit endorsement to the policy, previously quoted herein, clearly states that the limit of liability as coverage for medical benefits in the declaration is the limit to be allowed under the endorsement. It unequivocally states that the inclusion of more than one policy or the issuance of more than one policy, shall not operate to increase the limit of liability per person stated in the declaration.

Presence of the “two or more automobile” condition is stated by the courts in the cases permitting stacking to be the basis of conflict and ambiguity. That condition is as follows:

“When two or more automobiles are insured hereunder, the terms of this policy shall apply separately as to each,

The medical benefits endorsement of plaintiff’s policy excludes that condition both by its terms and by omission of application.

In the cases denying stacking, (some occurring in jurisdictions which have permitted it), it is made clear that the denial turned on the clear language of limitation or the absence of the “two or more automobile” clause. Some of the cases permitting stacking have acknowledged that the presence of terms of limitation such as are in plaintiff’s policy would have brought a different result.

The objective of construction of the terms in an insurance policy is to arrive at the intent of the parties when the policy was issued. Alabama Farm Bureau Mutual Cas. Co. v. Goodman, 279 Ala. 538, 188 So.2d 268. Unless the language of the policy is fairly and reasonably susceptible to more than one construction, there is no basis for a court interpretation. Need for construction arises only from the presence of ambiguous, uncertain or conflicting terms. Michigan Mutual Liability Co. v. Carroll, 271 Ala. 404, 123 So.2d 920. If no ambiguity exists in the terms of the policy, the court cannot remake the contract but must enforce it as the parties made it. Colonial Life & Accident Insurance Company v. Collins, 280 Ala. 373,194 So.2d 532.

Finding no uncertainty or ambiguity in this policy, we find the trial court erred in its judgment. The judgment is reversed and we render judgment in favor of plaintiff and against defendant in the amount of $2,000.00.

REVERSED AND RENDERED.

BRADLEY and HOLMES, JJ., concur.

      . Government Employees Insurance Company v. Sweet, 186 So.2d 96 (Fla.App.1966) ; Kansas City Fire & Marine Insurance Co. v. Epperson, 234 Ark. 1100, 356 S.W.2d 613; Travelers Indemnity Company v. Watson, 111 Ga.App. 98, 140 S.E.2d 505; Southwestern Fire & Casualty Company v. Atkins, 346 S.W.2d 892 (Tex.Civ.App.1961) ; Virginia Farm Bureau Mutual Insurance Co. v. Wolfe, 212 Va. 162, 183 S.E.2d 145; Harris v. Employers Mutual Casualty Company, 33 Colo.App. 314, 519 P.2d 1227 (1974) ; see also, Annotation, 21 A.L.R.3d 900.

      . Hansen v. Liberty Mutual Fire Insurance Company, 116 Ga.App. 528, 157 S.E.2d 768; Wachovia Bank & Trust Company v. West-chester Fire Insurance Company, 276 N.C. 348, 172 SJE.2d 518; Nationwide Mutual Insurance Company v. Bair, 257 S.C. 551, 186 S.E.2d 410; Sullivan v. Royal Exchange Assurance, 181 Cal.App.2d 644, 5 Cal.Eptr. 878.


text:
    STOTLER & COMPANY, a corporation v. Wayman BUTTRAM.
    Civ. 697.
    Court of Civil Appeals of Alabama.
    March 3, 1976.
    Rehearing Denied March 31, 1976.
    Loma B. Beaty, Fort Payne, for appellant.
    No appearance for appellee.
   WRIGHT, Presiding Judge.

Plaintiff appeals from the granting of a directed verdict in favor of defendant. Affirmed.

The complaint alleged that defendant owed plaintiff $213.00 on an open account. The $213.00 supposedly represented losses and commissions due on plaintiff’s account trading in hog futures. Defendant answered by pleading the general issue.

At pre-trial it was stipulated that certain business records of plaintiff would be admissible. These records consisted of statements of account addressed to defendant and margin requests instructing defendant that his account was undermargined. Although both the statements and the margin requests contained defendant’s name and address, there was nothing to indicate that they were sent to defendant or received by him.

At trial before jury plaintiff introduced the records referred to above, then rested. Defendant moved for directed verdict. Plaintiff reopened its case, calling defendant as a hostile witness. Defendant denied having any transactions with plaintiff, denied that he owed plaintiff any money, and said he had paid plaintiff nothing. Plaintiff again rested. At this point the court granted defendant’s motion for directed verdict.

In an action on account, the plaintiff has the burden of showing that he is owed a debt by the defendant. Nunn Battery Co. v. Battery Mfg. Co., 239 Ala. 96, 194 So. 182. The business records, standing alone, in no way sustain the plaintiff’s burden of proving that a debt existed. The records themselves do not show any contractual agreement between defendant and plaintiff. No officer or employee of plaintiff testified that defendant had authorized the purchase of hog futures and that the records represented the amount due plaintiff under those transactions. Although the records were addressed to defendant, nothing contained therein shows that they were mailed to or received by defendant. Plaintiff places great weight on defendant’s statement that he never paid plaintiff anything. This statement in no way authenticates the records or shows a debt due to plaintiff. Indeed, throughout his testimony defendant denied the existence of any debt.

Under the facts as shown by the record, the court correctly granted defendant’s motion for directed verdict.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


text:
    Mary Jean Wallis ESKEW v. Gordon LeRoy ESKEW.
    Civ. 648.
    Court of Civil Appeals of Alabama.
    March 3, 1976.
    Rehearing Denied March 24, 1976.
    Sirote, Permutt, Friend & Friedman and James A. Harris, Jr., Birmingham, for appellant.

      McCollough, McCollough & Landrum, Birmingham, for appellee.
   HOLMES, Judge.

This is a divorce case. The issue is whether the trial court erred in awarding custody of a minor child to the paternal grandparents. The mother of the child is the appellant.

From a close examination of the record we are able to discern the following: The husband and wife were married in 1970 and separated in January 1974. The wife filed her divorce complaint in January of J974. She sought a divorce and custody of the parties’ then two and one-half year old minor son. A temporary injunction was granted by the trial court whereby the wife obtained custody of the child. In May of 1974, a final decree of divorce was entered and the wife received custody of the child.

In July, upon motion of the husband, the May divorce decree was set aside. In January of 1975, the paternal grandparents intervened in the proceedings requesting custody of the child. After a hearing ore ten-us, the trial court in April of 1975 divorced the parties on the ground of incompatibility and awarded custody to the paternal grandparents.

As noted above, the wife appeals from that decree. Appellant-mother specifically contends that the final judgment of divorce makes no explicit finding that she is an unfit parent and, therefore, she is entitled to custody.

The tendencies of the evidence show the mother has worked continuously since the child was six months old. The mother and child, since January of 1974 when the separation occurred, have resided with the child’s maternal grandmother. While the mother was at her job the child was placed in a day care center.

The testimony is that the husband and wife constantly argued. In April of 1974 while the parties were separated, the father took the child from the mother and went to Mississippi. The child was returned in August of 1974 after court proceedings in Mississippi.

The evidence is without conflict that the mother loves her child and tends to his material needs. There is evidence, if believed, that prior to the parties’ separation and after their separation the wife had a sexual relationship with a man other than her husband. There was further evidence that the mother dated several men during the time the parties were separated and/or divorced; that is to say, from January of 1974 through July of 1974. There is no testimony that the wife’s activities were in any way detrimental to the child. In fact, the tenor of all the testimony is that the child was always well cared for at all times by the mother.

The record further reveals that the in-tervenors-paternal grandparents love and desire custody of their grandchild; that both grandparents are in their sixties; and that the grandfather will soon retire from the railroad. They are well able to meet the financial needs of the child. Furthermore, the child is no stranger to the grandparents, having spent considerable time with them, particularly his grandfather.

Having considered all of the above, the learned and distinguished trial judge, in pertinent part of his decree found as follows:

“In the instant case, the Court imputes no blame against the Plaintiff-mother and is concerned first and foremost with the question of the best interests and welfare of the child of these parents as the Law requires.
“The Plaintiff-mother is a business woman. Her duties take much of her time. This means that most of her waking hours the minor child must be looked after by others.
“According to the pleadings and evidence of intervention, the father fore-goes claim or right of custody, care and control. Therefore the Court is not unimpressed with the fortunate circumstances of the willingness of the paternal grandparents as intervenors to nurture, support and educate the child of the parties — their grandson. The Court counts this good fortune for that the grandparents are a solid and well established family; that the paternal grandfather is financially in position to fulfill the needs and afford all things necessary for the best interests and welfare of the child of the parties.
“Therefore, the petition to intervene of the paternal grandparents, Curtis O. Eskew and Anneleu Eskew, is hereby granted and the care, custody and control of the minor child of the parties, Gordon Leroy Eskew, is awarded to the paternal grandparents, Mr. and Mrs. Curtis O. Eskew with the right of all reasonable visitation to the Plaintiff-mother, Mary Jean Wallis Eskew.

The dilemma presented by this case is perhaps best stated by this court through our Presiding Judge Wright in White v. Appleton, 53 Ala.App. 702, 705, 304 So.2d 206, 208, 209, as follows:

“The real issue presented by the appeal is whether a mother should be denied custody of her small child when she has not been shown to be unfit.
“It appears there can be no specific answer to the question. Every case must be determined by its own facts with the primary goal being the best interest and welfare of the child. Harris v. Harris, 251 Ala. 687, 39 So.2d 232. There is little problem in recognizing a parent’s paramount right to the custody of minor children when such parent is not shown to be unfit and has fulfilled parental obligations of providing and caring for a child during its life. It is when a parent, though not shown presently to be morally, physically or financially unfit, has failed totally or in some material manner to fulfill the responsibilities of a parent according to reasonable standards that the conflict between so-called parental rights and the best interest of the child arises. Such was the matter for resolution in the case of Borsdorf v. Mills, 49 Ala.App. 658, 275 So.2d 338. The principle of the best interest of the child was determined to outweigh parental rights in that case. . . .” (Emphasis ours)

In White, supra, custody of the minor child was awarded to the grandparents.

Additionally, in Esco v. Esco, 51 Ala.App. 656, 288 So.2d 444, this court in affirming the trial court’s decree awarding custody of a minor child to its paternal grandmother found that Tit. 34, § 35, Code of Ala. 1940, does not require an award of custody to either the father or mother of the child to the exclusion of others. We further held in Esco, supra, that the paramount consideration is the welfare of the child.

There is no doubt that the primary goal in cases of this nature is the best interest and welfare of the child.

Another established principle of law that is appropriate to consider in this instance is:

“Ordinarily where a child is of such tender age as to require the care and attention that the mother is specially fitted to bestow, the mother rather than the father is the proper custodian unless for some reason she is unfit for the trust. .” (Burleson v. Burleson, 269 Ala. 637, 640, 114 So.2d 887, 889)

See also Lansdell v. Snoddy, 269 Ala. 344, 113 So.2d 151.

Additionally, this court and the Supreme Court of Alabama have held that an adjudication of the wife’s adultery in a divorce suit, which was not the case in this instance, is not, in and of itself, an absolute bar to her having custody of the parties’ minor child. See Mason v. Mason, 276 Ala. 265, 160 So.2d 881; Dale v. Dale, 54 Ala.App. 505, 310 So.2d 225.

We would further note that this court in Gould v. Gould, 55 Ala.App. 379, 316 So.2d 210, cert. denied, 294 Ala. 757, 316 So.2d 214, stated that the moral unfitness of a mother sufficient to deprive her of custody must be such as to have a direct bearing upon the welfare of the child. A parent will not be denied custody for every act of indiscretion or immorality.

We have carefully reviewed the record, keeping in mind the trial court’s specific finding as noted above, to wit: “. . . the Court imputes no blame against the Plaintiff-mother . . .” While the tendencies of the evidence, without question, show the third party grandparents to be loving and able to care for the child and desirous of so caring, we do not find evidence sufficient to justify denying custody to the mother of this child of tender years and awarding the child to the third party paternal grandparents. Specifically, there is no testimony regarding the mother’s behavior indicating that such behavior had any detrimental bearing upon the welfare of the child. All the evidence leads to the conclusion that the mother loves her child and cares for its needs. We further find the fact that the mother must be employed outside the home does not justify depriving her of custody.

In reversing this case, we should not be understood as condoning certain actions, if they be true, of the mother. Specifically, we would point out to those interested that the question of rightful custody of the child is never res judicata and those who have custody must govern themselves in such a manner as to justify that custody.

The case is due to be reversed and remanded for the entry of a decree not inconsistent with this opinion.

REVERSED AND REMANDED WITH INSTRUCTIONS.

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


author: BRADLEY, Judge.

text:
    CITY OF MOBILE, a Municipal Corporation v. PERSONNEL BOARD FOR MOBILE COUNTY, Alabama.
    Civ. 669.
    Court of Civil Appeals of Alabama.
    March 31, 1976.

      Stephen R. Sheppard, Mobile, for appellant.
    Mylan R. Engel, Mobile, for appellee.
   BRADLEY, Judge.

This is an appeal from an order of the Circuit Court of Mobile County upholding a ruling of the Personnel Board for Mobile County, Alabama, appellee here.

A classified employee, serving as a bus driver for the City of Mobile Transportation Department, was dismissed by the City of Mobile, appellant here, on June 7, 1974. The employee appealed to the Personnel Board, and a hearing was held on August 26, 1974. Such hearings on appeal are de novo, and the Board may rescind, modify, alter or affirm the penalty imposed by the City, Rule 14.7 of the Personnel Board of Mobile County; Jordan v. City of Mobile, 260 Ala. 393, 71 So.2d 513. On September 5, 1974 the Personnel Board ordered the dismissal be modified to a suspension, with reinstatement of the employee as of September 16.

The City appealed the Personnel Board’s decision to the Circuit Court of Mobile County. The case was submitted on the pleadings, briefs, and record developed before the Personnel Board. On April 18, 1975 the circuit court ruled, upholding the Personnel Board. This appeal is from the circuit court’s ruling.

It has already been stated that the hearing on appeal to the Personnel Board shall be de novo. It is thus abundantly clear that the Board is the trier of fact in these proceedings, Grant v. City of Mobile, 50 Ala.App. 684, 282 So.2d 285, cert. den. 291 Ala. 458, 282 So.2d 291. The question for the circuit court to decide on review is whether or not the Personnel Board’s findings are supported by substantial evidence, Grant v. City of Mobile, supra.

The record shows the following:

The employee was discharged for allegedly accepting fares from bus passengers and failing to deposit them in the fare box; and for smoking cigarettes while operating a city bus. Both acts are in violation of applicable regulations.

On June 3, 1974 at 3:20 p. m., Henry Owens and Etricia Mills, employees of McCullough Services, Inc., which was under contract with the City to audit its bus drivers, boarded the employee’s bus at Dauphin and Water streets. Mills got on first and went to her seat about midway in the bus. Owens boarded behind her and started to put sixty cents in the fare box. According to Owens and Mills, the employee put his hand over the fare box, palm up, and took the sixty cents. They both stated that they did not see him put the money in the fare box. They also stated that during the time they were on the bus, they observed the employee smoking cigarettes.

Both these witnesses stated they also saw three young women board the bus at the same stop. They stated that the employee took the fare money from the women and that they did not see him put any money in the fare box. Both witnesses departed the bus at 3:31 p. m. that same day.

Witness Mills testified that she rode the employee’s bus on June 4, 1974, boarding, the bus at Dauphin and Water streets, and on this occasion she saw a passenger board the bus and give the employee some money. No money was placed in the fare box. She said she also observed the employee smoking while operating the bus.

On cross-examination Mills said that on June 3, 1974 she saw Owens give the employee some money but did not see what he did with the money. She also said that she did not know how much money Owens gave the employee, but said in her report that it was sixty cents because that was the exact amount of fare due.

She further stated that she did not see how much money the three women gave the employee when they boarded the bus.

She made the statement that on June 3, 1974 she observed other passengers get on the bus and place their money in the fare box.

The superintendent of transportation for the City and the supervisor of the transportation department of the City of Mobile stated that all rules, regulations and directives for the behavior of bus drivers is contained in a packet that hangs on the bulletin board at the department’s office and is available for all drivers to read.

The supervisor said that when the employee was hired by the predecessor company to the existing transportation line, he was given a rule book to read and that certain instructions were read to the students.

The employee testified that on June 3, 1974 Owens did give him sixty cents, as he boarded the bus. At this time the employee said he owed one passenger thirty cents and another passenger fifteen cents. After paying them he put the remaining fifteen cents in the fare box. As to the three young women who boarded the bus when Owens and Mills did, he took five cents from each and paid another female passenger fifteen cents that he owed her on transfers and that the three women then deposited one quarter each in the fare box.

The employee said that while Mills was on the bus a Mr. Burkes boarded the bus and wanted a transfer but had only a dollar bill. The employee told him to wait until they reached the end of the line and he could get change and pay the fare. This he did by going in a service station, getting change, coming back and depositing the correct change in the fare box. Mills had left the bus before Burkes deposited his money in the fare box.

The employee also testified that he did not receive a copy of the operator’s rule book nor had he received any instruction to students while employed by the predecessor line. He said he was not aware that he was not supposed to make change or handle any of the fares, and stated that the other bus drivers did the same thing. He said that he made change because it was a help to his passengers.

A Mrs. Gloria Fleeton testified that she was on the bus on June 3, 1974 and observed the employee go to the back of the bus but did not see the exchange of coins.

Mr. Burkes testified that he boarded the bus on June 3 and had only a dollar bill and was unable to deposit the correct change in the fare box. He later left the bus, got his bill changed and put the correct fare in the box.

Based on this evidence, the Personnel Board found that there was not conclusive evidence that the employee had failed to place fares in the fare box, and that the charge had not been proven. The Board held that the employee’s conduct did reflect a negligent or careless attitude toward regulations, justifying some disciplinary action. Thus the dismissal was modified to suspension.

After a careful examination of the entire record, we are convinced, as was the circuit court, that the Personnel Board’s findings are supported 'by substantial evidence, and they should not be disturbed.

Appellant’s brief argues that the Personnel Board’s decision should have been overturned because the City’s original determination to fire the employee was supported by substantial evidence. Under the de novo rule, it is the Personnel Board, as trier of fact, which makes an entirely original determination of the matter, not limited by the City’s prior decision. It is then this ruling of the Personnel Board, not the prior one of the City, to which the circuit court applies the substantial evidence test. Such review was properly conducted in the instant case.

No reversible error having been argued, the judgment of the circuit court is affirmed.

AFFIRMED.

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


text:
    CAVALIER INSURANCE CORPORATION, a corporation v. R. D. GANN.
    Civ. 655.
    Court of Civil Appeals of Alabama.
    March 24, 1976.

      John Self and .Al Tidwell, Hamilton, for appellant.
    Fite, Davis & Fite, Hamilton, for appel-lee.
   ON REHEARING

BRADLEY, Judge.

The former opinion in this case is hereby withdrawn and the following becomes the opinion of this court:

Plaintiff filed an action in the Marion County Circuit Court against defendant seeking recovery for the loss of a mobile home that was covered by an insurance policy issued by defendant. By stipulation the only issue presented to the jury was that of damages. A verdict was returned in favor of plaintiff for $6,125. A judgment n. o. v. was requested on the ground of excessiveness of the verdict and was denied. The motion for new trial was also denied. Appeal was taken by defendant from the final judgment for plaintiff.

The facts show that in 1966 plaintiff purchased a 1966 First American House Trailer from Ewing Mobile Homes in Tu-pelo, Mississippi. He paid, according to his and his wife’s testimony, $1,000 down and financed $6,500 through Commercial Credit Corporation in Tupelo, Mississippi. In November 1973 the trailer was totally destroyed by a tornado. There was testimony that just prior to the tornado the trailer was in excellent condition. The plaintiff valued the trailer at the time of the tornado at $7,500 and after the tornado as being without value.

Since the only issue presented to the jury concerned the question of damages, the plaintiff testified that the trailer, even though it was seven and one-half years old, was in excellent condition and was worth $7,500. The defendant also attempted to introduce proof by way of expert testimony as to the market value of the trailer just before it was destroyed by the tornado. These witnesses were shown to have had experience in buying and selling mobile homes or house trailers, and in estimating their value; then they were presented with several hypothetical questions for answer on the value of the trailer in question. Plaintiff’s objections to the various hypothetical questions were sustained by the trial court. Defendant here claims these rulings were erroneous and require a new trial.

The recurring ground of objection to these questions was that the witnesses were not qualified to testify as experts regarding the type of trailer in question. The witnesses had admitted that they had neither observed plaintiff’s trailer before its destruction, nor had ever dealt on a firsthand basis with any First American trailer.

Whether a witness is qualified to testify as an expert is a question to be answered by the trial court, and his discretion in the matter will not be overturned except for abuse. Guarantee Trust Life Ins. Co. v. Overton, 50 Ala.App. 435, 280 So.2d 140. In Cooper v. Thomson Implement Co., 272 Ala. 655, 133 So.2d 391, the supreme court upheld a trial judge’s discretion in disqualifying an expert diesel mechanic’s testimony as to the cause of damage to a John Deere Model 70 tractor engine. The trial court’s stated reason for disqualification was the witness’ unfamiliarity with the John Deere brand of engine. In light of this reported decision, the disqualification of the experts in the present case to testify as to the value of an unfamiliar brand of trailer was within the scope of the trial court’s discretion.

Defendant next asserts that the trial court erred in not granting him a continuance during the trial of the case when he was surprised that the plaintiff and his wife would not acknowledge a purported copy of the financing agreement signed by plaintiff. It does not appear from the record that these witnesses were deposed prior to trial. Had they been, the authenticity of the witness’ signature could have been established at that time. If there were some question about it, further investigation could have been made. It would appear that postponing this investigation until trial makes it come too late and the trial court will not be placed in error for refusing a continuance during this stage. Continuances are not favored and the trial court’s denial of a motion for continuance will not be reviewed except for gross abuse, Johnson Pub. Co. v. Davis, 271 Ala. 474, 124 So.2d 441.

Defendant next contends that the trial court erred in refusing to let a witness testify that a directory of prices of used mobile homes had assigned a certain value to the destroyed trailer in question. The pertinent portion of the testimony is as follows :

“DIRECT EXAMINATION
“Q (By Mr. Tidwell): What is this you have here, Mr. Bedingfield (indicating) ?
“A This is a Directory of prices for used mobile homes.
“Q Is this a recognized authority as to the value of mobile homes ?
“A It is.
“Q And is it the one that is used by individuals to so estimate the value .. .
“A Yes, sir . .
“Q . . . of Mobile Homes ?
“A Yes.
“Q And you are familiar with this book?
“A Yes.
“Q Now then, is First American listed in that book ?
“A Yes, it is.
“Q Is a 1966 First American listed in that book ?
“A Yes.
“Q Now, at what value does that book assign to that . . .
“MR. DAVIS: We object.
“THE COURT: Sustained.”

It is first noted that neither the book in question nor a pertinent portion thereof was offered in evidence as reflecting the estimated value of the particular type of trailer in question; neither was the witness asked to look at the book and refresh his recollection so that he might testify based on his knowledge and experience. What the witness was asked to do was read out the value assigned in the book to a 1966 First American trailer. Had he been allowed to give this testimony, he would have merely been repeating what the authors of the book had said about the value of the trailer type in question. The admission of opinion testimony as to market value based at least in part on hearsay is discretionary with the trial court, Farm Industries, Division of Quaker Oats Co. v. Howell, 39 Ala.App. 131, 95 So.2d 808. The refusal to admit such opinions where they are heavily influenced, if not completely controlled, by hearsay is no abuse of discretion.

Another alleged error cited by defendant is the denial of his request for a mistrial based on plaintiff’s^ reference in argument to the jury to a settlement offer. As to the basis for the mistrial request, the record reflects the following:

“MR. TIDWELL: I would like to get into the record the fact that in his argument Mr. Davis has discussed various and sundry settlement offers, and we move for a mistrial.
“THE COURT: All right, that is denied.”

For the trial court to be placed in error for denying an objection to argument of counsel, it must appear that the ruling was appropriately invoked on utterance of the supposedly improper remarks. Pinckard v. Dunnavant, 281 Ala. 533, 206 So.2d 340. Counsel has the duty to point out to the trial court the portion of the argument deemed objectionable. Pacific Mutual Life Ins. Co. v. Yeldell, 36 Ala.App. 652, 62 So. 2d 805.

In the present case this was not done. Counsel for defendant made a general statement at the completion of plaintiff’s remarks that the argument had “. . . discussed various and sundry settlement offers,” and requested a mistrial. The trial court committed no error in denying such request.

Defendant next argues that the trial court erred in refusing to give several requested written charges. We are unable to reach the merits of the objections made to the trial court’s refusal. Rule 51, ARCP, provides in pertinent part as follows :

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

The record shows that defendant failed to comply with this rule by not stating his objections to the charges and the grounds therefor prior to the jury’s retirement to consider a verdict.

Defendant also argues that the verdict and judgment is excessive. This issue formed one of the grounds on which defendant based his motion for new trial below. An assignment of error, directed to the refusal of the trial court to grant a motion for new trial is sufficient to invite review of that ruling as to any ground well stated in the motion, Boudrow v. H & R Const. Co., 284 Ala. 60, 222 So.2d 154. Our review is thus invited to the exces-siveness of the verdict.

The authority vested in courts to disturb the verdict of a jury on the ground of excessive damages is one which should be exercised with great caution, Crum v. McGhee, 289 Ala. 244, 266 So.2d 855. The reviewing court is reluctant to substitute its judgment with regard to damages for that of the jury and trial court, Atlanta Life Ins. Co. v. Stanley, 276 Ala. 642, 165 So.2d 731. Where the evidence of the parties differs as to value, and the jury fixes the amount at a figure between the conflicting values, the court on appeal usually will not hold that the verdict is excessive, Smith v. Heath, 207 Ala. 4, 91 So. 799.

In the instant case, plaintiff testified that, in his opinion, the value of the trailer at the moment preceding its destruction was $7,500. Plaintiff also stated that the trailer cost $7,500 new in 1966 and had, if anything, appreciated in value. Defendant presented expert opinion testimony that the trailer’s value had depreciated greatly. Defendant also offered as evidence the previously mentioned copy of the financing agreement, showing the trailer’s 1966 price to be only $6,500. This contract was held inadmissible for lack of authentication.

This conflicting evidence shows a range of possible values for the trailer from under $6,000 to $7,500. The jury’s award was for $6,125, of which $6,000 represented the value of the trailer. Under Smith v. Heath, supra, we will not hold this to be excessive.

[14] Defendant’s final suggestion of error concerns the overruling of its motion for new trial on the ground that plaintiff’s witnesses had committed perjury. The evidence at the main trial showed that plaintiff and his wife testified that they paid $7,500 for the trailer in question. The plaintiff also testified that the signature on a purported copy of the conditional sales contract entered into by the plaintiff and wife did not appear to be his. On motion for new trial defendant introduced into evidence a certified copy of the conditional sales contract which was on file in the Marion County Probate Judge’s office. Defendant says that the certified copy of the contract allegedly entered into by plaintiff shows that the purchase price was $6,500 rather than $7,500 as testified to by plaintiff and his wife. However, defendant does not go so far as to contend that plaintiff lied about his signature. Instead, he merely says that the trial court erred in not granting a new trial because the copy of the sales contract shows that the purchase price was less than that testified to by plaintiff and his wife.

Defendant’s substantiation for the perjury claim consists solely of the installment contract as recorded by the Marion County Probate Judge. The terms of this document vary from the testimony of R. D. Gann as to the purchase price of the trailer, and cast doubt on the accuracy of that testimony. We do not feel that this alone proves perjury: it is equally plausible that R. D. Gann’s recollection was faulty.

It is clear that the installment contract would have carried great weight in impeaching Gann’s testimony, if introduced and admitted at trial. It is tardy, however, for defendant to locate the contract in the probate office after judgment has been rendered and attach it to a post-trial motion to discredit a witness’ testimony. This conclusion is supported by the record which reveals to us that the installment contract was admitted at the motion for rehearing on July 7, 1975, approximately three months after the trial of the main case. Prior to the trial, defendant had allowed over a year to elapse since being served with the complaint, and had not discovered the contract in the Probate Judge’s office. With due diligence defendant could have had an admissible copy of the contract available at trial for impeachment purposes. A copy from the probate office would have been admissible without further authentication. The trial court was within its discretion in refusing to retry this case where defendant produced nothing more than this.

For the above stated reasons, the judgment of the trial court is affirmed.

AFFIRMED.

APPLICATION FOR REHEARING GRANTED.

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


author: HARRIS, Judge.

text:
    Jerry SPEARS v. STATE.
    7 Div. 427.
    Court oí Criminal Appeals of Alabama.
    Feb. 3, 1976.
    Rehearing Denied March 9, 1976.
    David A. Rains, and Robert G. Wilson, Fort Payne, for appellant.
    William J. Baxley, Atty. Gen., and Carol Jean Smith, Asst. Atty. Gen., for the State.
   HARRIS, Judge.

Spears was convicted of robbery and was sentenced to ten years in the penitentiary. He was represented by employed counsel and at arraignment he pleaded not guilty. After sentence he gave notice of appeal and trial counsel represents him on appeal.

The facts concerning the robbery are not in dispute. Appellant did not testify but he offered the testimony of his father and another witness in support of his alibi. At the conclusion of the State’s case appellant moved to exclude the State’s evidence on the ground the State failed to make out a prima facie case. This motion was overruled and denied.

On April 8, 1975, Mrs. Bertha Crane and her husband lived on Lookout Mountain toward Adamsburg in DeKalb County, Alabama. Her husband Prince Crane was a mentally incompetent veteran of World War II and was drawing compensation for full disability. Mrs. Crane was a victim of cancer at the time of the robbery and could not walk without crutches.

Mrs. Crane testified that she was at home on April 8, 1975, about 5:00 p. m. when her husband was brought home by a man whom she had never seen before. Mr. Crane entered the house first and the other man followed pointing a gun at Mr. Crane’s back. He told Mrs. Crane that Mr. Crane promised him taxi fare if he would take him home. Mrs. Crane went to her bedroom to get some change to pay the man for bringing her husband home. The man followed Mrs. Crane and kept the pistol pointed on her. She got her change purse and the man said he did not want that. She offered him a twenty-dollar bill and he told her he wanted all the money. She had six twenty-dollar bills left from her husband’s check after buying groceries one time. With the gun still pointed on her the man took the six twenty-dollar bills. He told her he was going to take Mr. Crane with him and if she called the officers, he was going to kill her husband. He told Mrs. Crane that he wanted the jewelry and she told him they did not have any jewelry. He saw a knife in the dish drainer and he made Mr. Crane cut the telephone wires. He then took Mr. Crane and backed out of the house to his car and drove away.

Mrs. Crane’s next-door neighbor called the Fort Payne Police Department and reported the robbery. When the officers arrived, Mrs. Crane gave them a description of the man who robbed her. She told the officers that the robber was about six feet tall and was about twenty-five years of age. That he weighed about ISO to 160 pounds and that he had a long belt buckle with something inscribed on it. She said he had long reddish-looking hair, and wore a hunting hat pulled down to his nose. She stated he was driving a white and black automobile. She told the officers she observed the man in broad daylight for five or six minutes.

The day after the robbery she viewed a lineup of five men and immediately identified appellant as the man who robbed her of $120.00. She made an in-court identification of appellant as the robber and stated that she was not basing her identification on the lineup but on seeing him when he robbed her and on seeing him in the courtroom and that there was no question in her mind that he was the man who robbed her.

Mrs. Crane stated emphatically that she was not picking out appellant because of the lineup but because she got a good look at him at close quarters for five or six minutes when he was at her house in the daylight hours of April 8, 1975. She said there was no question in her mind that Jerry Spears was the one who robbed her.

Jimmy Cunningham, a neighbor of the Cranes, testified that on April 8, 1975, he saw Mr. Crane go by his house riding in the passenger seat of a white and black Chevrolet. He testified on the motion to suppress outside the presence of the jury, as well as before the jury, that in his best judgment Spears was the driver of the white and black car. He stated he was in the yard of his home and was not more than 20 feet from the automobile and he got a good look at the driver.

On cross-examination he stated that the Cranes lived on a dead end street and that he saw the car both coming and leaving by his house. As the car came back Cunningham could see the driver real well because he was closer to the road and the driver was on his side. He said he spoke to the driver but the driver did not speak to him. He said he had a long hard look at Spears when he tried to speak to him. He stated the driver had on a camouflaged hunting hat and had fairly long brown hair. He further testified that when he went down to the Police Department to view the lineup, he was looking around the place and his attention was drawn to a photograph on a bulletin board and that no one had directed his attention to the photograph. He called one of the officers over to the bulletin board and told him that was the photograph of the man who drove the white and black car by his house. This occurred before the lineup where Cunningham identified appellant. Cunningham stated very positively that his identification was based on seeing Spears driving the car to and from Mr. Crane’s house and was not based on the lineup.

Mrs. Mattie White, a neighbor of the Spears family and Mr. Claude Spears, appellant’s father, testified that on the day of the robbery, the white and black car was parked in front of the Spears’ home with a flat tire. Mrs. White testified that she was positive the right front tire was flat. Appellant’s father was just as positive that the left rear tire was flat. Mr. Claude Spears admitted the car belonged to his son. He further testified that on the day of the robbery his son helped him fix a garden for a Mr. Beason on Lookout Mountain. That they got back home late in the afternoon and his son borrowed his mother’s car to go to Chattanooga to play pool, and that his white and black Chevrolet stayed at the house all night and was not moved until the following Wednesday.

Mr. Claude Spears turned over to the officers the hunting hat which belonged to his son and it was introduced in evidence as State’s Exhibit No. 2 without objection.

On rebuttal Mr. Claude Spears was thoroughly impeached by three officers who testified that the father told them his son helped him work the garden the day before the robbery.

City Detective Wayne Parker was one of the three officers to whom Mr. Claude Spears made the statement that his son helped him work the garden the day before the robbery. He further testified that he knew appellant had a white and black Chevrolet and that around 6:30 p. m., on the day of the robbery, he went by appellant’s father’s home and that his car was not parked there.

Appellant makes two contentions to the effect that this case is due to be reversed. His first claim is that he was charged with a capital offense and was entitled to a special venire. Secondly, he contends that a pretrial confrontation for the purpose of identification of the accused as the guilty party is unconstitutional and a violation of due process of law if it was so unnecessarily suggestive as to give rise to a very substantial likelihood of irreparable mis-identification.

We will treat these contentions in the order in which they are presented.

In Burt v. State, 54 Ala.App. 1, 304 So.2d 243, certiorari denied, 293 Ala. 749, 304 So.2d 246, we said:

“Since Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346, decided on June 29, 1972, abolished the death penalty in all the States of the Union, alcrimes for which the' maximum punishment was death must now be considered non-capital felonies in Alabama. Jones v. State, 50 Ala.App. 62, 276 So.2d 647.
“Appellant further objected to being forced to strike from a list of twenty-five (25) qualified jurors. Since robbery is a non-capital felony in Alabama today, a defendant charged with robbery is entitled to strike from a qualified list of not less than 24 jurors as provided by Title 30, Section 62, Code of Alabama 1940. Crowden v. State, 41 Ala.App. 421, 133 So.2d 678.”

The holding in Burt, supra, was reaffirmed in Sheperd v. State, 57 Ala.App. 35, 325 So.2d 551, decided on October 1, 1975.

Appellant argues that the Supreme Court in Ex parte Bynum, 294 Ala. 78, 312 So.2d 52, has overruled these cases. We do not so construe Bynum.

In Sheperd, supra, a decision rendered since Ex parte Bynum, supra, Judge Book-out concurring specially wrote:

“Contrary to the broad language above, it is my opinion that the Alabama Supreme Court in Bynum was addressing itself solely to the question of bail. The purpose for a special venire in ‘capital cases’ was to give defendant, on trial for his life, an additional safeguard not given to those where only their liberty was at stake. At the time Title 30 Sec. 63, Code of Alabama 1940 was enacted, the only distinction between ‘capital’ and ‘non-capital’ cases was the possible imposition of the death penalty. Since the imposition of the death penalty has been suspended, there is no rational justification for a special venire in a case formerly classified as ‘capital’ and one form- ■ erly not so classified where the penalties may now be the same.”

There can be no doubt that in Bynum the Supreme Court was dealing solely with the question of bail and the Burt case was not mentioned. On authority of Burt and Sheperd we hold appellant was not entitled to a special venire.

We do not deem it necessary to consider the validity of the lineup procedure in this case since the in-court identifications were based entirely upon independent origins as is so clearly illustrated by the testimony of the victim of the robbery and the testimony of Jimmy Cunningham hereinabove set forth.

In McCay v. State, 51 Ala.App. 307, 285 So.2d 117, certiorari denied, 291 Ala. 788, 285 So.2d 122, this Court said:

“Hence, the only question with respect to the identification was whether or not the totality of circumstances would require as a matter of law that the defendant go free.
“We do not think that this is a proper case for the application of so drastic a penalty upon the prosecution. Here the defendant was in varying degrees identified by more than one witness. Some were able to give reasonably good details, others were not. McCay’s alibi testimony was quite threadbare.”

In Thomas v. State, 50 Ala.App. 227, 278 So.2d 230, this Court held:

“The line-up was not tainted and the circumstances do not show an unfairly constituted line-up, nor was it shown to have been conducted in such an unnecessarily suggestive manner as to be conducive to irreparable mistaken identification. Even if the line-up were to be thought to be violative of due process, the in-court identification need not be rejected if it is shown to have a source independent of the line-up. We are of the opinion that there was sufficient evidence before the trial court, • some already alluded to, to show that the in-court identification by the rape victim had an independent origin, hence, fulfilling the legal requirements.”

In Hannon v. State, 48 Ala.App. 613, 266 So.2d 825, this Court said:

“We hold that the in-court identification was not tainted by the lineup. This is a clear case on ‘independent source.’ She knew him because she ‘eye-balled’ him for five minutes during the robbery. Robinson v. State, 45 Ala.App. 236, 228 So.2d 850; Grace v. State, 44 Ala.App. 682, 220 So.2d 259; State v. Allen, 251 La. 237, 203 So.2d 705.”

In Campbell v. State, 47 Ala.App. 57, 249 So.2d 877, this Court held that whether the in-court identification was based on facts other than those of the police lineup, and was free from influence, was for the Court to decide from the testimony adduced. In this case the trial court held that the in-court identifications were free from taint and were based on independent sources.

We have carefully examined the record and have found no error that merits disturbing the judgment of the conviction, and the case is due to be affirmed.

AFFIRMED.

All the Judges concur.

      . See Fisher v. State, 57 Ala.App. -, 328 So.2d 311, released by this Court on January 20, 1976, where the full Court concurred in the holding that nothing that was said in the Bynum case deals with special venires.


author: ALMON, Justice.

text:
    In re Jerry SPEARS v. STATE. Ex parte Jerry Spears.
    SC 1767.
    Supreme Court of Alabama.
    April 9, 1976.
    David A. Rains, Fort Payne, for petitioner.
    No appearance for the State.
   ALMON, Justice.

Petition of Jerry Spears for Certiorari to the Court of Criminal Appeals to review and revise the judgment and decision of that Court in Spears v. State, 57 Ala.App. —, 329 So.2d 579.

WRIT DENIED.

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