author: WRIGHT, Presiding Judge.

text:
    TENNESSEE VALLEY COTTON OIL MILL, a corporation v. OAKLAND GIN CO., a partnership, et al.
    Civ. 945.
    Court of Civil Appeals of Alabama.
    Dec. 22, 1976.

      J. G. Speake, Moulton, for appellant.
    C. A. Poellnitz, Florence, for appellees.
   WRIGHT, Presiding Judge.

Plaintiff appeals from judgment on counterclaim. We affirm.

Plaintiff, Tennessee Valley Cotton Oil Mill, a Corporation, brought suit on December 14, 1973, against defendant, Oakland Gin Co., a partnership, for the sum of $12,-832.50 due on a loan made to defendant on October 11, 1973. Motion to dismiss was filed by defendant within 30 days. There was no further activity in the case until defendant filed answer and counterclaim on May 17, 1976. The counterclaim alleged indebtedness of $15,075.07 owed by plaintiff to defendant arising from agreements entered between the parties in the years 1971 and 1972. Setoff against the claim of plaintiff was claimed by defendant.

To the counterclaim, plaintiff filed defense of general denial, statute of frauds and statute of limitations. Trial was had before the judge without a jury. Judgment was for defendant on the counterclaim in the sum of $75.07.

The issues presented are: (1) Is enforceability of the alleged oral contracts precluded by Title 7A, Sec. 2-201, Code of Alabama (1940) (Uniform Commercial Code)? (2) Is the counterclaim of defendant barred by Title 7A, Sec. 2-725, Code (UCC)?

The evidence presented tended to show the following: Plaintiff purchases cottonseed from producers and ginners. Such purchases are made in open market competition with others, primarily Buckeye Mills and Southern Cotton Oil Co. Each fall, prior to time for harvest and ginning of the cotton crop, defendant would discuss the prospects of the season with plaintiff. Plaintiff told defendant that if cottonseed were brought to it, it would pay the same price per ton as Southern and Buckeye were paying; and if additional benefits, called rebates, were paid by those companies, plaintiff would pay the same. Defendant, and other ginners, would then deliver the amount of seed which they desired to sell to plaintiff during the harvest season. Plaintiff would issue tickets showing the net tonnage received and the price to be paid. At the end of the season, sometimes March or April of the new year, the account would be balanced and settled. Sometime thereafter, when the oil mills had determined their financial position, some would often pay to their customers an additional sum per ton over and above the price at market. (Just why this was done is not clear from the evidence, but it was apparently a method of sharing the benefit of a profitable year with their customers and also an incentive to doing further business in the coming year.) Plaintiff told defendant at the beginning of the 1971 and 1972 season that it would in all respects meet the prices and rebates of its competition as it had in the past.

Defendants brought seed to plaintiff in 1971 and 1972. Plaintiff paid no rebate to defendant for either of those years. Defendant learned that Buckeye and plaintiff paid another ginner a rebate of $2.00 per ton for sales in 1971. Southern paid defendant $7.50 per ton rebate for sales of seed to it in 1972. Defendant requested payment from plaintiff of rebates for sales for the years 1971 and 1972 equivalent to that paid by Buckeye and Southern. Plaintiff refused.

In October 1973, defendant went to plaintiff and requested $15,000. Defendant did not state to plaintiff what the $15,000 was for. Plaintiff gave defendant a check for $15,000. Defendant made one delivery of seed in the season of 1973 and notified plaintiff in October that it would make no further deliveries and was claiming the $15,000 as payment for the unpaid rebates of 1971 and 1972 and the seed delivered in 1973. Plaintiff brought suit in December for payment of the $15,000, less credit for the seed delivered.

Defendant admits that it secured the $15,000 from plaintiff with the intention that it would not repay it, but would set off the claimed debt for rebates in 1971-72. Defendant calculated the amount of rebates it considered due based upon tonnage delivered, and in 1973 delivered enough seed to bring the total to $15,000. It was stipulated that defendant’s calculations were correct and that there was an excess of $75.07 over $15,000.

Plaintiff submits that the claim of defendant is unenforceable because of the applicability of Title 7A, Sec. 2-201, Code. That statute may be referred to as the commercial statute of frauds. It reads, as follows:

“See. 2-201(1) Except as otherwise provided in this section a contract for the sale of goods for the price of $500 or more is not enforceable by way of action or defense unless there is some writing sufficient to indicate that a contract for sale has been made between the parties and signed by the party against whom enforcement is sought .
“(3) A contract which does not satisfy the requirements of subsection (1) but which is valid in other respects is enforceable .
“(c) with respect to goods for which payment has been made and accepted or which have been received and accepted.”

There is no dispute that none of the transactions between plaintiff and defendant were in writing to the extent required to escape the statute of frauds. There is no conflict in the testimony as to the fact that there were contracts between the parties. Plaintiff in brief and argument discusses the application of the statute to the transaction of October 1973 wherein defendant obtained plaintiff’s check for $15,000 and later delivered a load of cottonseed to plaintiff’s mill. We do not discern how the application of the statute to that transaction affects the right to recover upon defendant’s counterclaim.

The contracts involved in the counterclaim arose in 1971 and in 1972, not in October 1973. The evidence and reasonable inferences indicate those contracts arose in the following manner. In the fall of each year, defendant visited the plaintiff to determine what its business policy was going to be for that year. Defendant, in effect, said: Tennessee Valley Oil, you are the smaller of the three cottonseed oil mills in this area. You want me to bring you my cottonseed this season. You are not big enough to set the prices for seed, but will you meet the prices and other benefits which your larger competitors pay? We know there is no set price. It will change from week to week. Whether Southern and Buckeye will decide to pay an extra amount next spring after they determine how they have done this year is unknown, but if they should pay us an extra sum per ton for deliveries to them will you pay the same?

Plaintiff replied: we will do whatever Buckeye and Southern do. We will be competitive with them.

With that promise or offer made to it, defendant thereafter delivered seed from time to time to plaintiff. Plaintiff acknowledged and receipted delivery by using a delivery ticket showing the tonnage of seed and the price per ton to be paid for seed on that date. Each delivery might have a different price per ton of seed. There was no obligation upon defendant for delivery of seed. We perceive that the preseason statement by plaintiff to be competitive with Buckeye and Southern was nothing more than an offer, which was subsequently accepted when seed was delivered. The contract was complete when delivery was accepted by plaintiff. Whether each delivery is considered as a separate contract or the total deliveries of the season one contract, is immaterial. In either case, there was delivery with receipt and acceptance of the goods in full. Subsection (3)(c) of Sec. 2-201 is satisfied.

The second issue is whether the counterclaim is barred by the limitation of Title 7A, Sec. 2 — 725(1) which provides:

“An action for breach of any contract for sale must be commenced within four years after the cause of action has accrued.”

That statute has the additional proviso as follows:

“this section does not alter the law on tolling of the statute of limitations . . Title 7A, Sec. 2-725(4).

Plaintiff bases its claim of the bar of the statute of limitations upon two incorrect premises. The first is that defendant’s claims accrued in 1971 and 1972. The second is that the statute ran until defendant filed its counterclaim in January of 1976.

As to the first premise, the evidence is undisputed that payment of rebates was made in the spring or summer of the year following the ginning season; that no one knew whether a rebate would be paid until the close of the mill’s financial year. The exact time that a rebate was paid by plaintiff in 1972 was not specified. Though a certain date was not shown when Southern paid rebates in 1973, the evidence was that it occurred between July and September each year. If the trial court found from the evidence that the claim for a rebate for 1971 accrued in August 1972, and that for 1972 in August 1973, the statute of four years had not run against either claim when the counterclaim was filed May 17, 1976.

Plaintiff’s second incorrect premise is that the statute of limitations began to run when the defendant’s cause of action accrued and ran until the counterclaim was filed. That premise is totally contrary to Title 7, Sec. 355, Code of Alabama (1940) and Rule 13(c) ARCP. Title 7, Sec. 355 is as follows:

“When the defendant pleads a set-off to the plaintiff’s demand, to which the plaintiff replies the statute of limitations, the defendant is nevertheless entitled to his set-off, where it was a legal subsisting claim at the time the right of action accrued to the plaintiff on the claim in suit.”

Sec. 355 has been the law of Alabama for almost 100 years. Conner & Wife v. Smith, 88 Ala. 300, 7 So. 150 (1889). The last sentence of Rule 13(c) was added to the equivalent federal rule in order not to conflict with Sec. 355. (Committee Comments.) The provision of the rule as to relation back of counterclaims appears to be nothing more than a restatement of Sec. 355. Sec. 355 has been considered a statute of limitations as to matters of setoff and recoupment and is available in an action brought by a plaintiff on a claim which, but for the statute, would be barred. Wilson v. Montgomery Bank & Trust Co., 203 Ala. 340, 83 So. 64 (1919); Conner & Wife v. Smith, supra. There is no question but that the accrual of plaintiff’s cause of action tolled the running of the statute of limitations as to defendant’s counterclaim. If a setoff was an existing right of action at the time plaintiff’s right of action accrued, it is available as a counterclaim. Washington v. Timberlake, 74 Ala. 259 (1883).

Title 7A, Sec. 2-725 specifically recognized that its enactment did not affect the tolling effect of Sec. 355. Previous statutes of limitations had also been subject to the same effect.

Finding no merit in the issues presented by this appeal, the judgment of the trial court is affirmed.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


source: Caselaw Access Project

author: HOLMES, Judge.

license: Public Domain

text:
    Lynnie W. SPEED v. Glennis K. SPEED.
    Civ. 902.
    Court of Civil Appeals of Alabama.
    Dec. 29, 1976.

      Alan C. Livingston, of Lee & Mclnish, Dothan, for appellant.

      Douglas M. Bates, Dothan, for appellee.
   HOLMES, Judge.

This is an appeal from the Family Division of the Circuit Court of Houston County wherein permanent custody of a minor child was awarded to his natural mother. The natural father of the child, Mr. Lynnie W. Speed, prosecutes this appeal.

Mr. Speed, the appellant, contends the trial court erred to reversal by:

(1) Failing to accord full faith and credit to a Florida decree which granted permanent custody of the child to him; and (2) Converting a habeas corpus petition proceeding into a child custody proceeding without prior notice to the parties. We find these contentions without merit and, accordingly, affirm.

The record reveals the following pertinent information:

After almost five years of marriage, Mr. Speed and Mrs. Glennis K. Speed, the natural mother and appellee, were divorced on December 16, 1975, by a decree of the Circuit Court of Leon County in Tallahassee, Florida. Custody of their minor child, Lyn-nie W. Speed, Jr., was given to Mrs. Speed by this decree.

Subsequent to the divorce, Mr. Speed moved to Dothan, Alabama, and Mrs. Speed to Paducah, Kentucky. In April of 1976, Mr. and Mrs. Speed decided through telephone conversations to allow Lynnie to live with his father for an indefinite period of time while Mrs. Speed was “job-hunting.”

Lynnie was to have begun living with his father at the beginning of the summer. However, the day after the parties had reached their agreement concerning Lynnie, Mrs. Speed received a phone call from Mr. Speed in which he told her that he had obtained a position in a day care center for Lynnie which would be lost if Lynnie was not enrolled within ten days. At this time, Mr. Speed also informed Mrs. Speed that he was contemplating remarriage, though in actuality he was already married to Miss Barbara Jean Scribner Walworth.

In order to accommodate the ten day deadline, Mrs. Speed decided to allow the child to begin living with his father immediately. To this end, on April 15, 1976, Mr. Speed drove to Paducah and picked up the sixteen month old child. According to Mr. Speed, the child was dirty and sick at the time he picked him up. Mr. Speed spent approximately $400 on medical treatment for his son while the latter was in his custody.

On April 26, 1976, Mr. and Mrs. Speed had three telephone conversations, one of which Mr. Speed, unknown to Mrs. Speed, recorded. During the second conversation, Mrs. Speed demanded that Mr. Speed return the child to her custody. He refused to do so; and on April 27,1976, she proceeded to Dothan where she filed a petition for writ of habeas corpus in the Circuit Court of Houston County, alleging that Mr. Speed and Miss Walworth were unlawfully detaining the minor child in violation of the Florida decree rendered on December 16, 1975.

On April 27, 1976, Mr. Speed and Miss Walworth were served with a copy of Mrs. Speed’s petition and a summons ordering them to appear with Lynnie W. Speed, Jr., in the Circuit Court of Houston County on May 10, 1976.

Prior thereto, on the night of April 26, 1976, Mr. Speed had travelled to Tallahassee, Florida; and on April 27, 1976, in the Circuit Court of Leon County, Florida, he had filed a petition for modification of that court’s final judgment of December 16, 1975, alleging that Mrs. Speed was not properly caring for the minor child and praying the custody of the child be vested in him.

On April 28, 1976, a copy of the petition for modification and the order setting the date for the hearing thereon were mailed via certified mail to Mrs. Speed by Mr. Speed’s Florida attorney. Mrs. Speed, for reasons irrelevant here, was first apprised of the Florida hearing on May 7, the same day that the Circuit Court of Leon County, Florida, issued a decree modifying its final judgment of December 16, 1975, wherein custody of Lynnie had been granted to Mrs. Speed. The May 7 modification stated:

“Lynnie W. Speed shall have the primary care, custody and control of the minor child of the parties, to wit, Lynnie W. Speed, Jr., . . .”

Trial on Mrs. Speed’s habeas corpus petition was had in the Circuit Court of Houston County on May 11,1976; the court was cognizant of the contents of the Florida decree rendered four days prior thereto. The court heard testimony from Mrs. Speed, her father, Mr. Speed, Miss Wal-worth, and a physician. At the conclusion thereof, the court ordered that Lynnie be returned to Mrs. Speed’s custody on or before June 1, 1976. Mr. Speed was granted substantial visitation rights. Additionally, the court found that both parties were fit to have custody of Lynnie and that Mr. Speed had acquired custody of the child through a deceptive “scheme or design.”

It is from this proceeding that Mr. Speed takes this appeal.

I

As previously stated, Mr. Speed contends the trial court erred to reversal by not according the May 7 Florida decree full faith and credit as required by U.S.Const. art. IV, § 1. He states the Alabama court was precluded from taking any action which would modify the Florida decree, absent a showing of changed circumstances in the interim four day period between the two proceedings. We strongly disagree.

Article IV, § 1 of the U. S. Constitution provides that:

“Full Faith and Credit shall be given in each State to the public Acts, Records, and Judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.”

Pursuant to this authority Congress has stated:

“The records and judicial proceedings of any court of any such State, . . shall have the same full faith and credit in every court within the United States ... as they have by law or usage in the courts of such State, from which they are taken.” 28 U.S.C. § 1738).

The general principle derived from this statute is that the judgment of a sister state is to be given that effect, in the state of the forum, to which it is entitled in the state where rendered. Smith v. Smith, 109 U.S.App.D.C. 367, 288 F.2d 151 (1961); United States v. Silliman, 167 F.2d 607 (3rd Cir. 1948), cert. denied, 335 U.S. 825, 69 S.Ct. 48, 93 L.Ed. 379 (1948).

“[I]t is clear that the State of the forum has at least as much leeway to disregard the judgment, to qualify it, or to depart from it as does the State where it was rendered.” (People of State of New York ex rel. Halvey v. Halvey, 330 U.S. 610, 615, 67 S.Ct. 903, 906, 91 L.Ed. 1133 (1947)

Accord Kovacs v. Brewer, 356 U.S. 604, 78 S.Ct. 963, 2 L.Ed.2d 1008 (1958); Hernstadt v. Hernstadt, 373 F.2d 316 (2nd Cir. 1967).

“[Ejven apart from a . change in circumstances, a custody award which is subject to challenge or modification in the state where it was rendered is likewise subject to challenge in another state. ...” (35 A.L.R.3d 520, 536-37).

Thus, an Alabama court may take any action with respect to a Florida decree which a Florida court could have taken. Gray v. Department of Pensions and Security, 53 Ala.App. 19, 296 So.2d 918.

The pertinent Florida law with respect to the finality of judgments in child custody cases is as follows:

“ ‘ “[I]t is . the law that a decree in a divorce suit, fixing the custody of a child of the parents being divorced, . is . . .a final decree of the court on the conditions then existing, and is not to be materially amended or changed afterward, unless on altered conditions shown to have arisen since the decree, or because of material facts bearing op the question of custody and existing at the time of the decree, but which were unknown to the court and then only for the welfare of the child. * * ’ ” (Bruggisser v. Bruggisser, Fla.App., 244 So.2d 518, 521, quoting from Frazier v. Frazier, 109 Fla. 164, 147 So. 464, 465)

Accord Goldstein v. Goldstein, Fla.App., 264 So.2d 49; Ritsi v. Ritsi, Fla.App., 160 So.2d 159.

Thus, where material facts relative to the welfare of the child are not presented to the court at the time of the rendition of its decree, it may thereafter, upon a showing of the theretofore unpresented facts, modify its decree.

While the evidence adduced in the May 7 Florida proceeding is not before this court, we do know that Mrs. Speed was not in attendance. One may reasonably conclude that she would have introduced substantial evidence pertaining to the welfare of Lyn-nie which was not presented to the court by Mr. Speed. Hence, it seems certain to us that had Mrs. Speed petitioned the Florida court subsequent to May 7, it would have been empowered to modify its decree.

Under similar circumstances, the Supreme Court of the United States has reached such a conclusion with respect to Florida law. In Halvey, supra, a wife instituted divorce proceedings in Florida. Service of process on the husband was by publication. The day before the rendition of the divorce decree in Florida, the husband, without the knowledge or approval of his wife, took their minor child to New York. Consequently, he was not in attendance at the Florida divorce proceeding wherein permanent custody of the child was awarded to the wife.

Thereafter, the wife filed a habeas corpus petition in New York alleging unlawful detention of the child by her husband. The New York court substantially modified the Florida decree by granting visitation rights to the husband. Upon appeal by the wife, the Supreme Court of the United States stated:

“Respondent [husband] did not appear in the Florida proceeding. What evidence was adduced in that proceeding bearing on the welfare of the child does not appear. But we know that the Florida court did not see respondent nor hear evidence presented on his behalf concerning his fitness ... ‘to enjoy the society and association’ of his son. . It seems to us plain . . . that . the Florida court would have been empowered to modify the decree in the interests of the child and to grant respondent the right of visitation, if he had applied to it rather than to the New York court and had presented his version of the controversy for the first time in his application for modification.” (Halvey, supra, 330 U.S. at 613-14, 67 S.Ct. at 905.)

The United States Supreme Court concluded that since the New York court had done only that which the Florida court could have done, the former had accorded the latter’s decree the full faith and credit required by the Constitution.

Similar rationale is applicable herein. As shown from above, the Circuit Court of Houston County, Alabama, had the same power with respect to modification of the May 7 decree as did the Circuit Court of Leon County, Florida. Since Florida law, in this instance, would have empowered the Leon County Circuit Court to modify its decree, we perceive no error in this instance in the Houston County Circuit Court’s doing the same.

Furthermore, although we deem the Hal-vey, supra, rationale to be dispositive of this case, even absent that decision, we are of the opinion that the Circuit Court of Houston County would not have been prohibited from hearing the case under the circumstances as revealed by the record. Where both the child and the father were within the jurisdiction of the court of the father’s residence; where the father had obtained custody of the child through a deceptive design; where the decree awarding such custody was rendered without the mother’s having actual knowledge of that proceeding; where the mother had initiated a proceeding in the Alabama circuit court of the father’s residence on the same date the father had instituted a proceeding in a Florida court; and where the latter had merely rendered its decree four days prior to the Alabama court; the Alabama court is not, to this court, precluded from rendering a decree on matters previously decided by the Florida court.

II

Mr. Speed also contends that the trial court erred to reversal by altering the habeas corpus petition to a child custody proceeding without giving prior notice to the parties. He states that such action precluded him from presenting pertinent evidence regarding child custody. Had he known that the proceeding was to have been a modification proceeding, he submits he would have presented different evidence.

To this court, it appears the trial court did put Mr. Speed on notice as to the matters to be considered at trial. In response to the query of Mr. Speed’s attorney as to whether the trial was to be a “modification hearing,” the court stated:

“You can call it what you wish, .
“The Florida court, for example, could modify the decree, could change its own decree; then this court could change that decree, too.”

Irrespective of the terminology affixed to the proceeding, plainly the trial court made apparent to Mr. Speed, as did Mrs. Speed’s habeas corpus petition, that the subject matter of the hearing concerned who was to have custody of the child. That Mr. Speed understood this is apparent from the testimony given by him, his second wife, and a doctor pertaining to his ability to care for the child and the lack of such ability on the part of the ex-wife. In other words, the evidence he presented clearly concerned what was to the best interests of the child, the controlling principle with regard to child custody cases. Review of the record convinces this court that Mr. Speed was well informed as to the character of the proceeding in the lower court and presented his evidence accordingly.

Moreover, before rendering its decision, the trial court specifically stated:

“I’m going to treat this particular hearing as I would any custody hearing.

Mr. Speed, at that time, made no motion to present additional evidence. In fact, after careful perusal of the record, we find no showing that the issue he raises on appeal was presented to the court below. It is axiomatic in Alabama that matters not objected to in the trial below cannot be raised for the first time on appeal. Callahan v. Weiland, 291 Ala. 183, 279 So.2d 451; Henley v. Boswell, 55 Ala.App. 414, 316 So.2d 342; 2 Ala. Digest Appeal and Error &wkey;181. Hence, for the above reasons, we find Mr. Speed’s second contention without merit.

Mr. Speed, through able counsel in reply brief, further contends that this appeal is moot in that subsequent to the May 11 proceeding in Dothan, Alabama, Mrs. Speed has personally appeared in the Circuit Court of Leon County, Florida; and by a decree of October 28, 1976, that court has refused to modify its decree awarding custody of the child to Mr. Speed. This court will not entertain such an argument, for it is the law in this state that an appellate court cannot consider matters outside the record and not before the trial court. Alabama State Docks Department v. Alabama Public Service Commission, 288 Ala. 716, 265 So.2d 135.

Mrs. Speed’s attorney has requested that this court award him a fee for representing her on this appeal. A fee of $300 is hereby awarded.

All issues having been duly considered, the decree of the lower court is to be affirmed.

AFFIRMED.

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


author: HOLMES-, Judge.

text:
    FEDERAL MOGUL CORPORATION, a corporation, and the Travelers Insurance Company, a corporation v. Dwight MOSES.
    Civ. 930.
    Court of Civil Appeals of Alabama.
    Dec. 29, 1976.
    Michael B. Maddox, of Guin, Bouldin & Porch, Russellville, for appellants.
    Charles D. Rosser, of Rosser & Munsey, Tuscumbia, for appellee.
   HOLMES-, Judge.

This is a workmen’s compensation case. From a judgment in favor of the employee the employer appeals.

The dispositive issue on appeal is whether the trial court’s finding that the employee sustained a 30% permanent partial disability to the body as a whole with a corresponding 30% loss of earning ability is supported by the evidence. We find that it is and affirm.

The pertinent facts are as follows:

The employee is a high school graduate, having completed his high school education while serving in the U. S. Army. He is thirty-two years old and the father of three children. After discharge from the Army he performed carpentry work and was a “stock room” clerk. Thereafter, he attended Northwest Technical, a trade school located in Hamilton, Alabama, where he studied to be a machinist and tool and die worker. After finishing trade school, he farmed and did tool and die work. The employee then worked in the construction trade for a short time before becoming employed by a mobile home manufacturer to perform the duties of a warehouse foreman.

In approximately November of 1972, he was employed by the employer-on appeal. In December of 1973, while lifting a vise from a bench in the course of his employment, he injured his back. He has not worked any appreciable amount since this injury.

After the injury, in January of 1974, the employee consulted Dr. James Anderson and was hospitalized immediately. Dr. Anderson apparently referred the employee to Dr. Vance C. Roy, a neurological surgeon. While hospitalized, a myelogram was performed and other treatment provided. In July of 1974, the employee was involved in an automobile accident. Surgery was performed on the employee’s back sometime after the automobile accident.

The employee testified that after he was injured on the job and prior to the automobile accident, he was in constant pain; that he did not sleep well; that he could not stand or sit for long periods of time; that he could not lift anything, stoop, or bend without experiencing pain; that his job required him to do all of these things. He could .not walk any great distance. He stated he could not do any of the work he performed prior to his injury.

The employee specifically testified that his back was just as painful and his motion just as limited prior to the automobile accident as it was afterwards.

The employee’s wife testified that her husband had always been a good worker. She substantiated her husband’s testimony as to his limitations.

Dr. Roy testified that in his opinion the employee could have returned to work in June of 1974. Dr. Roy performed the surgery on the employee’s back after the automobile accident. As to what degree of the employee’s back problem was attributed to the employee's job related injury versus the automobile accident, Dr. Roy testified as follows:

“Q Now the next problem that we have of course is that we have two accidents involved here. Would there by any way of telling whether one of both of these contributed to the symptoms which he was feeling.
“A I know of no objective way. To me the implication was that he was better until he had the wreck, but I have seen people get better and then worse again without having a wreck so that is your problem and not for me.”

Dr. Roy testified regarding the employee’s present percentage of disability as follows:

“Q Do you think that he was still able to work or perform normal functions.
“A That depends on what normal is for him. I think that if he were a lawyer he would be in good shape or if he were a shoe salesman or a clerk. It is just my gut feeling about it that this man is not going to be able to go back to lifting things that he lifted before he hurt his back.
“Q How much permanent physical impairment do you think that he is going to have as a result of this condition.
“A Well I would say that his permanent physical impairment to the body as a whole would be between 7 to 15% and I just can not get down any closer than that on something like this.”

Dr. James Anderson, the other physician who treated the employee and who first saw the employee after his job related injury, testified that he diagnosed the injury received by the employee on the job to be herniated nucleus pulposis. Specifically and pertinently, Dr. Anderson testified as follows:

“Q Doctor, do you have an opinion as to whether or not this man has been totally disabled from the time you first saw him until today?
“A Yes.
“Q What is that opinion?
“A My opinion is that he is totally disabled from the time that I saw him until today.
“Q Have you talked with Dwight Moses and been informed by him, as part of his history, as to what his job consisted of when he got hurt?
“A Yes.
“Q Was that as a tool and die maker?
“A Yes.
“Q Are you acquainted, Doctor, with the requirements of a tool and die maker as far as the physical activity of the person goes?
“A Yes.
“Q I believe your brother-in-law owns a tool and die shop, doesn’t he?
“A Yes.
“Q Doctor, do you have an opinion as to whether or not Dwight Moses will ever be able to perform tool and die work?
“A Yes, I have an opinion.
“Q What is that opinion, Doctor?
“A I don’t think he will be able to perform tool and die work because of his injury.
“Q Alright, basically, Doctor, what kind of limitations and restrictions will the man have to live with? I am talking about in the nature of permanent limitations and permanent restrictions?
“A Well, I would say that any type of lifting, climbing, bending, stooping, jumping or prolonged ambulation or being on the feet for a long period of time would be prohibitive.”

In relation to the effect the subsequent automobile accident had on the employee’s injury, Dr. Anderson testified as follows:

“Q Alright, did he tell you, in some of these subsequent examinations, about a second accident that he had?
“A Yes, he did.
“Q To what extent do you think that accident affected his condition?
“A Well, let me answer your question this way: In my opinion, when I saw him on the 29th of January, 1974, I thought he had a ruptured disc between the L4, L5 innerspaces on the left. He had the findings of that. Now, subsequently he had this accident and it was following the second accident that he had his surgery in which they found two discs, I understand, at L4, L5 and also L5-S1. I don’t know who could tell you what effect the automobile accident had on this, his overall injuries. I can only say that I know he had one disc before the automobile accident.”

Dr. Anderson further testified as follows in relation to the employee’s percentage of disability:

“Q Doctor, do you have an opinion as to a permanent partial impairment rating on this boy?
“A Yes.
“Q What is that opinion, Doctor?
“A As a tool and die worker?
“Q Give us that first and then give us just an overall impairment rating, if you will.
“A As far as I know, this is all this man is able to do — a tool and die man— and I would say, in all fairness to him and the requirements of a tool and die worker, I would say 40% would be a fair estimate.
“Q Now, just a general impairment rating to the body as a whole, regardless of what he attempted to do, is that your opinion — 40%?
“A Yes, as of today, the 1st of May, 1975.
“Q Do you feel that is a permanent disability?
“A Yes. In fact, it could get worse. “Q It could get worse?
“A Yes.
“Q Alright, that is all.”

The criteria for review has been often stated by the Supreme Court of Alabama and this court. This criteria for review clearly requires affirmance of the trial court’s decree. As this court stated in B. F. Goodrich v. Martin, 47 Ala.App. 244, 250, 253 So.2d 37, 43, cert. denied, 287 Ala. 726, 253 So.2d 45:

“Our review by certiorari does not perform the functions of an appeal. The weight or preponderance of the evidence or whether the finding of fact by the trial court is proper is not before us on review by certiorari. We must accept such finding if it is supported by any legal evidence. . . . ”

To this court, there is ample evidence to support the trial court’s finding of disability. We do not deem it necessary to set out again the pertinent testimony supporting the trial court’s conclusion. Suffice it to say the testimony of the employee, his wife, and at least one physician clearly shows that the employee is impaired m performing those duties for which he is trained. See Edwards v. City of Huntsville, 49 Ala.App. 498, 273 So.2d 475; Colvin v. Lee Turzlllo Contracting Co., 54 Ala.App. 401, 309 So.2d 112; Vulcraft, Inc. v. Wilbanks, 54 Ala.App. 393, 309 So.2d 105.

In brief, able counsel for the employer states that the trial court failed to consider the fact that the employee resumed work as a carpenter for approximately six weeks prior to the automobile accident. Tit. 26, § 279(C)6, Code of Alabama 1940, states:

“In . . other cases of permanent partial disability . . . the compensation shall be sixty-six and two-thirds percent of the difference between the average weekly earnings of the workman at the time of the injury and the average weekly earnings he is able to earn in his partially disabled condition . . .”

It is the employer’s contention that there could be no finding of permanent partial loss of ability to earn since the employee had drawn weekly wages for approximately six weeks which were greater in amount than those he would have drawn had he not been injured.

Larson’s Workmen’s Compensation Law, Vol. 2, § 57.21, provides the answer to this contention:

“It is uniformly held . . . that a finding of disability may stand even when there is evidence of actual post-injury earnings equalling or exceeding those received before the accident. The position may be best summarized by saying that actual post-injury earnings will create a presumption of earning capacity commensurate with them, but the presumption may be rebutted by evidence independently showing incapacity or explaining away the post-injury earnings as an unreliable basis for estimating capacity. . . . ”

Accord Goodyear Tire and Rubber Co. of Ala. v. Downey, 266 Ala. 344, 96 So.2d 278. See Bell v. Driskill, 282 Ala. 640, 213 So.2d 806. Here the employee has worked for only approximately six weeks of the fifteen month period which elapsed between his initial incapacitation in January of 1974 and the time of trial in May 1975. To this court, such evidence sufficiently rebuts the presumption that his earning capacity is commensurate with the wages he received as a carpenter. The preceding, in conjunction with the other evidence adduced at trial, is sufficient to support the trial court’s conclusion with respect to disability.

As might be surmised, the employer additionally argues that the evidence shows that the employee’s disability was, in large measure, the result of an automobile accident and not a work related injury.

As seen from the testimony of the employee, Dr. Roy and Dr. Anderson, as set out above, the evidence under our standard of review clearly does not support the employer’s contention.

Lastly, the employer argues that the employee refused to have surgery until after the automobile accident and that the trial court erroneously failed to apply the pertinent provision of Tit. 26, § 293, Code of Alabama 1940.

Title 26, § 293, in part reads as follows: “If the injured employee refuses to comply with any reasonable request for examination or refuses to submit to medical and surgical treatment and attention, or refuses to accept the medical service which the employer elects to furnish under the provisions of this chapter his right to compensation shall be suspended, and no compensation shall be payable for the period of such refusal. . . .”

The evidence does not support the employer’s contention regarding the employee’s refusal to have surgery. Representative of such testimony is as follows:

Dr. Roy testified as follows:
“Q One last thing. I don’t know whether this is going to get into the case or not, but in Alabama we have as part of our Workmen’s Compensation Law a portion that says that if a person unreasonably refuses medical treatment he waives his right to claim compensation. Was his failure to do the exploratory surgery any sooner than he did unreasonable, or do you view it as having been a reasonable decision.
“A Not in the least.
“Q In other words, he was kind of following your instruction to stand it as long as he felt like he could but when you get to the point come on back.
“A You see, he really got better. He got ‘well’ at least subjectively he did and as well as you can objectively see in this kind of examination.
“Q So it was not unreasonable, his refusal.
“A I don’t think that it was unreasonable at all.”

The case is due to be and is affirmed.

AFFIRMED.

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


text:
    LOWE’S OF DOTHAN, INC., a corporation v. ACME DRYWALL COMPANY et al.
    Civ. 993.
    Court of Civil Appeals of Alabama.
    Dec. 29, 1976.

      Douglas M. Bates of Adams & Bates, Dothan, for appellant.
    Huey D. Mclnish and Alan C. Livingston of Lee & Mclnish, Dothan, for appellees.
   HOLMES, Judge.

From a judgment of the Circuit Court of Houston County sitting without a jury, Lowe’s of Dothan, Inc., the plaintiff below, takes this appeal. The judgment awarded Lowe’s $6,402.91 of the $12,189.88 sought by the complaint.

Lowe’s contends reversal of the judgment below is required in that:

(1) The damages awarded to Lowe’s are inadequate.

(2) The trial court erred in striking Count III of Lowe’s amended complaint.

We resolve these issues in accordance with the actions of the trial court and, accordingly, affirm.

The record and judgment, viewed with the attendant presumptions of correctness, indicates the following:

Prior to March 28, 1973, Mr. John Ralph Reaves, one of the defendants below and appellees herein, owned a sole proprietorship called Acme Drywall Company. Mr. Reaves had an open end credit account with Lowe’s which enabled him to purchase building materials on credit. On March 28, 1973, the sole proprietorship became a partnership which continued to operate as Acme Drywall Company. The partners consisted of Mr. Reaves and Mr. Carl D. Johnston. Ownership was equally divided between the two; and they, as well as Acme Drywall Company, were the defendants below and are the appellees herein.

On March 28, 1973, Mr. Reaves and Mr. Johnston went to Lowe’s where they talked with Mrs. Linda Crouse, the office credit manager. The purpose of the visit was to obtain a final balance of the Acme proprietorship account so that it could be extinguished and a new line of credit extended to Acme the partnership.

On that day, Lowe’s indicated the proprietorship had purchased $9,649.13 in materials. Mr. Reaves and Mr. Johnston issued a check payable to Lowe’s for this amount.

Thereafter, on April 9,1973, Mr. Johnston and Mr. Reaves each individually executed a separate document entitled “Credit Application.” In addition to blanks requiring disclosure of relevant personal data, each of the documents contained the following:

“STATEMENT: In consideration of credit being extended by Lowe's to me/us/it, I and/or we certify the truthfulness and veracity of the statement appearing above, and I and/or we guarantee and bind ourselves to the faithful payment of all amounts purchased or now owing, by us or either of us, or any other person, firm, or corporation for our benefit. If credit is extended to a corporation in which we, or either of us, or I am an officer, or in which an interest exists I and/or we will personally faithfully guarantee the payment of all credit extended to said corporation.
“STATEMENT: In the event this account is placed in the hands of an attorney for collection or suit instituted to collect same or any portion thereof, I and/or we agree and promise to pay an attorney’s fee of 15% of the balance then due and owing.”

Also, Mr. Johnston and his wife, Jean, on June 6, 1973, signed a statement whereby they agreed to pay:

“[A]ll accounts due Lowe’s of Dothan, Inc., Dothan, Ala., for purchases made in the name of and charged to Acme Drywall.”

Lowe’s extended credit to Acme after formation of the partnership. Consequently, Acme made numerous credit purchases. Amplification of the accounting procedures circumscribing these transactions is a necessary predicate to further discussion of the events which transpired.

The records of these credit transactions were maintained by Lowe’s in two different fashions. Prior to June 26, 1973, Lowe’s kept a master account card on which every credit purchased by Acme was entered. Lowe’s also retained a separate job account card of each job which Acme had in progress. Thus, orders placed by Mr. Reaves, when he was the sole owner of Acme, or by either Mr. Reaves or Mr. Johnston, after the formation of the partnership, were entered on both the appropriate separate job account card and also the master card. During the relevant time frame, Acme had approximately 12 to 30 jobs in progress.

The entries on the account cards were based on data derived from sales ticket invoices which were filled out by salesmen at the time orders were placed. These sales ticket invoices did not constitute verification of delivery but merely established that the material had been ordered. If an Acme employee was present on the job site at the time of delivery, the deliveryman was to obtain a signature from that individual verifying receipt of the order. There was no showing by Lowe’s that they reconciled invoices and delivery tickets.

Lowe’s, upon receipt of a payment by Acme, would allocate the proceeds therefrom among various job accounts. For instance, in return for Mr. Reaves’ and Mr. Johnston’s $9,649.13 check of March 28, 1973, Lowe’s later issued the following receipt:

“Jack Creel Job 114.03
Eagle Homebuilders Job 1,001.26
Femdor Sub Crestview Fla. Job 605.10
Smith Homebuilders Job 316.59
9,649.13
“Paid Check # 2223”

Thus, $114.03 of the $9,649.13 was applied to the Jack Creel job account, etc. According to the testimony of Mrs. Crouse, credits for these amounts were entered on the corresponding job account cards. Apparently, Lowe’s also entered some credits on the master account card, although none for the $9,649.13 check were entered thereon.

With these record keeping procedures in mind, we turn now to the conflicting testimony presented by the parties.

As previously stated, Mr. Reaves and Mr. Johnston sought to close the proprietorship account on March 28, 1973. The receipt which was given to them at some later time for the $9,649.13 check also contained the following entry:

“Bal. Due 4-10-73 $3,759.21 Upchurch”

Mrs. Crouse, who either personally made or supervised all account entries, had no knowledge of where the data supporting such an entry could have come from; nor did she know who made the entry on the receipt.

Mr. Charles Skeen, a certified public accountant, on the basis of information derived from Lowe’s account cards and can-celled Acme checks, testified that as of December 24, 1973, Acme owed Lowe’s $12,-189.88. However, on cross examination, Mr. Skeen unequivocally stated that $6,417.13 in checks issued by the partnership after March 28, 1973, had been applied to pre March 28, 1973, debts of Acme the proprietorship. Mr. Skeen testified that had this $6,417.13 been credited to the Acme partnership account, the partnership would have been indebted to Lowe’s for $5,567.75.

Mr. Reaves testified in substance that Lowe’s had charged the proprietorship $2,885.88 for materials on the “Halstead” job which he was uncertain that he had ever received. He further stated that he had been billed $2,637.98 for undelivered sheetrock for the “Weber” condominium job.

Mr. Gilliam, Lowe’s store manager, testified that he never received any complaints from Mr. Reaves or Mr. Johnston concerning nondelivery of materials ordered or overcharges on their statements. Suffice it to say that Mr. Johnston s testimony regarding this point was directly opposed to Mr. Gilliam’s.

Against this background on March 30, 1976, the trial court entered a judgment for Lowe’s in the amount of $6,402.91.

On May 20, 1976, Lowe’s made a motion for a new trial, asserting as a basis therefor error by the trial court in striking Count III to its amended complaint. Count III states:

“1. On April 9, 1973, the Defendant, John R. Reaves and the Defendant, Carl D. Johnston, each made a credit application with Plaintiff, and in their respective credit applications each agreed, among other things, that in consideration of credit being extended by Plaintiff to each of them, each guaranteed and bound himself to the faithful payment of all amounts purchased or now owing by them, or either of them, and each further agreed in their respective credit application to pay an attorney’s fee of 15% in the event said account was placed in the hands of an attorney for collection or suit.
“2. A copy of the credit application of John R. Reaves to hereto annexed as Exhibit ‘A’ and a copy of the credit application of said Carl D. Johnston is hereto annexed as Exhibit ‘B’.
“3. Defendants John R. Reaves and Carl D. Johnston owe Plaintiff the sum of $12,189.88 for goods sold and delivered by Plaintiff to said Defendants from, to wit, February 1, 1973 through December 24, 1973.
“WHEREFORE, Plaintiff demands judgment against Defendants in the sum of $12,189.88, plus interest, attorney’s fees and costs.”

From a denial of the motion for a new trial Lowe’s takes this appeal.

I

As previously stated, Lowe’s questions the sufficiency of evidence sustaining the judgment rendered below; and, as we noted earlier, they specifically contend the amount of damages awarded are inadequate.

The evidence hereinabove indicates the difficult task which confronted the trial court. Conflicting claims were presented as to what material had been delivered. Moreover, accuracy of the bookkeeping entries, which constituted Lowe’s proof of damages sustained, was questionable.

Mrs. Crouse testified that the $9,649.13 check of March 28, 1973, issued by Mr. Reaves and Mr. Johnston, was to “straighten out” the previous proprietorship account of Acme. However, she was uncertain as to the source of the April 10, 1973, entry on Mr. Reaves’ receipt stating Acme owed an additional $3,759.21. She stated that no credit for $9,649.13 was entered on the master account card. Mr. Reaves testified that Mrs. Crouse had informed him that $9,649.13 was the entire amount of Acme’s indebtedness as of March 28, 1973.

Mr. Skeen testified that $6,417.13 of partnership funds were used to pay proprietorship debts. As counsel for Acme et al. notes, a deduction of this amount from the original sum claimed by Lowe’s leaves a resulting balance of $5,567.75. Add to this the 15% attorney’s fees which the appellees agreed to pay in the event that suit was instituted and the amount of indebtedness tabulates as $6,402.91, the precise amount of the trial court’s judgment.

Put another way, the evidence is conflicting and confusing as to what amount, if any, was owed upon formation of the partnership; what credits were given and to whom; what materials were charged and delivered to appellees. With such evidence before the trial court, it becomes the duty of the trier of fact to resolve such conflicts.

It is appropriate to quote what this court said in American Home Building & Loan Association v. Long, 24 Ala.App. 34, 36, 129 So. 793, 794:

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

The case of Cobb v. Malone, supra, was reaffirmed by the Supreme Court on September 26, 1975, in Hubbard Bros. Construction Co. v. Halstead, 294 Ala. 688, 321 So.2d 169.

With such conflicting evidence, the trial court could reasonably have concluded that the proprietorship debt was extinguished by the March 28, 1973, check and thereafter, $6,417.13 in partnership funds was reapplied to those previously paid accounts. Albeit not the sole interpretation to be derived from the evidence, such an interpretation is more than supported by the record. Hence, we cannot say the judgment is plainly and palpably wrong, thereby warranting reversal.

II

Lowe’s contends the trial court erred to reversal in striking Count III of its amended complaint. Whether the court did in fact strike the entire count or only the exhibits attached thereto is unclear. In either event, grounds for reversal are lacking, for there is no showing that Lowe’s was prejudicially affected thereby.

The exhibits were stricken from the amended complaint. However, that the trial court considered them in arriving at its decision is manifestly apparent from this statement made by the trial court in ruling on Lowe’s motion for a new trial:

“THE COURT: I considered it. It was admitted. Those were admitted in the evidence and I considered them.”

Clearly, our review of the record shows the documents to have been admitted. Introduction of the documents into evidence and consideration of them precludes any prejudicial effect which might otherwise have been occasioned by the striking of the exhibits from the complaint. It is a well established principle of law in this state that error, if indeed error existed in this instance, without injury will not work a reversal of the decree below. Schneider v. Mobile County, 284 Ala. 304, 224 So.2d 657; Speigle v. Chrysler Credit Corporation, 56 Ala.App. 469, 323 So.2d 360; 2A Ala. Digest Appeal and Error «=>1026.

“For a case to be reversed due to an error of the trial court, it must appear that substantial rights of appellant have been prejudiced thereby. . . .” (Speigle, supra, 56 Ala.App. at 478, 323 So.2d at 367)

Similar rationale is applicable to the alleged ruling of the court with respect to Count III. Assuming arguendo that the count was stricken in its entirety, we perceive no injury to Lowe’s therefrom.

The transaction to which Count III referred was identical to the other counts of the complaint. To this court, Count III was but another manner of stating that the defendants-appellees were indebted to Lowe’s for $12,189.88, plus attorney’s fees, interest, and cost. Moreover, we note that Lowe’s has failed to enunciate any manner in which the ruling operated to its detriment.

Lowe’s also claims the lower court erred to reversal by failing to hold an incoming partner liable for debts for the old firm when he has expressly assumed the debts by a written guaranty agreement. Our view of the evidence requires no discussion of this issue. The trial court, to this court, could reasonably have concluded there were no pre-existing debts of Acme, the proprietorship, to be paid.

It follows that the judgment of the trial court is without error and is to be affirmed.

AFFIRMED.

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


text:
    Johnny MARTIN v. Alvertis HONEYCUTT.
    Civ. 1007.
    Court of Civil Appeals of Alabama.
    Dec. 29, 1976.
    Clifford W. Hardy, Jr., Bessemer, for appellant.
    G. W. Nicholson, pro se.
    Thomas H. Jackson, Bessemer, for appel-lee.
   HOLMES, Judge.

From a jury verdict in the Circuit Court of Jefferson County awarding Mrs. Alvertis Honeycutt $4,250 in damages, Mr. Johnny Martin takes this appeal.

Two issues are submitted to this court by the appeal:

(1) Did the trial court in this instance err to reversal by granting summary judgment to one defendant and denying summary judgment to a co-defendant, appellant herein?

(2) Are the damages awarded excessive?

We answer in the negative and accordingly affirm.

The pertinent facts as revealed by the record show that in 1969, Mr. Johnny Martin, the appellant, was the owner of a house located at 5051 Eubank Road, Bessemer, Alabama. In June of 1969, Mr. Martin was notified to remove the plastic plumbing and an unapproved septic tank from the premises by the Jefferson County Board of Health. Mr. John N. Mauter, a registered sanitarian with the Jefferson County Health Department, testified that the soil at the dwelling was unsuitable for septic tanks.

Mr. Martin replaced the plastic pipes with iron pipes but did not remove the septic tank.

Thereafter, on December 2, 1970, Mr. Martin executed an agreement with the Ada Mae Garner Agency whereby the latter was given the exclusive right to sell the property at 5051 Eubank Road. Before showing the house to prospective buyers, Mrs. Garner visited and looked at the premises. At no time did Mr. Martin ever inform Mrs. Garner of either the notice by the Jefferson County Board of Health or of any other problem with the bathroom facilities. In fact, Mr. Martin led Mrs. Garner to believe that everything in the house was “in good working order.”

Mrs. Garner placed the following ad in the Birmingham News:

“BESSEMER-HOPEWELL, 5 rooms and bath, good condition, WW carpets, $5,000. Call 425-1685, Ada Mae Garner Agency, Realtor.”

The plaintiff below and appellee herein, Mrs. Honeycutt, saw the ad, called Mrs. Garner and went to inspect the dwelling. In that prepurchase visit to the residence, Mrs. Honeycutt saw one of Mr. Martin’s children flush the commode. Additionally, she was informed that the bath was in operating condition.

On December 20, 1970, Mrs. Honeycutt purchased the home from Mr. Martin for $5,000. She paid $4,000 in cash and financed the remaining $1,000.

On February 26, 1971, the Jefferson County Health Department, pursuant to a complaint that the field lines to the septic tank were erupting, ordered Mrs. Honey-cutt to either disconnect the field lines from the septic tank or move from the premises. As previously stated, the soil at the dwelling was unsuitable for a septic tank. There are no sewers located in the area.

Mrs. Honeycutt vacated the premises between February 26, 1971, and April 19, 1971. She has thereafter been unable to either re-occupy or rent the house which lacks operational bathroom facilities.

On February 25, 1972, Mrs. Honeycutt filed a complaint seeking $10,000 in damages from Mr. Martin and Mrs. Garner. The complaint alleged that Mrs. Honeycutt, in reliance on the false and fraudulent representations of the defendants, had been induced to purchase the Eubank Road premises and had suffered damages thereby.

After numerous amendments to the pleadings the case came to trial on November 18,1975. On that date, the court granted, for unstated reasons, Mrs. Garner’s motion for summary judgment. Her motion was as follows:

“Defendant, Ada Mae Garner, moves the Court to enter, ... a summary judgment in the said defendant’s favor, dismissing the action ... on the ground that there is no genuine issue as to any material fact and that the said defendant is entitled to a judgment as a matter of law.”

Title 7, § 42, Code of Alabama 1940, bars actions for fraud not initiated within one year after the discovery of the fraud. Mr. Martin’s motion for summary judgment asserting that the statute of limitations barred Mrs. Honeycutt’s action was denied by the court on November 18, 1975. On November 19, 1975, after a trial of the issues, the jury found for Mrs. Honeycutt in the amount of $4,250 plus costs. Mr. Martin’s motion for a new trial was denied on March 31,1976, and he thereafter instituted this appeal.

I

As seen from above, there is no showing that the favorable disposition of Mrs. Garner’s motion for summary judgment was predicated on the statute of limitations. Hence, we need not delve into the alleged inconsistencies in the treatment accorded the defendants on their respective motions for summary judgment.

It is sufficient to point out that the record affirmatively establishes the correctness of the trial court’s disposition of Mr. Martin’s motion for summary judgment. This court finds no evidence in the record that establishes any date other than February 26, 1971, as the date that Mrs. Honey-cutt first became aware of the fraud. Mr. Martin, in brief, contends that Mrs. Honey-cutt, in response to one of Mrs. Garner’s interrogatories, stated that she first became aware of the fraud on February 24, 1971. Hence, he concludes, the filing of her complaint on February 25, 1972, was without the period prescribed by Tit. 7, § 42.

As previously stated, we find no such evidence. Even if we did, it would not alter the decision we reach herein the slightest regard. Mrs. Honeycutt’s pretrial affidavits, which are included in the record, establish February 26, 1971, as the date she first was apprised of the fraud. If the alleged evidence indicating Mrs. Honeycutt did discover the fraud on February 24,1971, had been made available to the trial court, a material question of fact would have been presented to that court. It is axiomatic that a summary judgment is appropriate only where there is no material issue of fact. DeBardeleben v. Cummings, 453 F.2d 320 (5th Cir. 1972); Blackford v. Commercial Credit Corp., 263 F.2d 97 (5th Cir. 1959), cert. denied, 361 U.S. 825, 80 S.Ct. 74, 4 L.Ed.2d 69. The trial court’s denial of Mr. Martin’s motion for summary judgment is therefore without error.

II

Mr. Martin, through able counsel, also contends that in an action for fraud, punitive damages can be awarded only if the fraud is “malicious, oppressive, or gross.” He states the excessive nature of the damages awarded conclusively demonstrates the verdict herein constituted punitive damages. We disagree that the verdict necessarily includes an award of punitive damages although such an award can be supported by the evidence.

We initially note the attendant presumption of correctness attaching to jury verdicts for damages. Alabama Power Company v. Mosley, 294 Ala. 394, 318 So.2d 260; Midwestern Welding Co., Ltd. v. Coosa Tool and Die, Inc., 54 Ala.App. 159, 306 So.2d 25. Furthermore, this presumption is enhanced when the trial court, as here, overrules a motion for a new trial. Moon v. Nolen, 294 Ala. 454, 318 So.2d 690; Jackson Company v. Faulkner, 55 Ala.App. 354, 315 So.2d 591.

Generally, damages in an action for fraud consist of the difference between the actual value of the property at the time of sale and what it would have been had it been as represented. Boriss v. Edwards, 262 Ala. 172, 77 So.2d 909. Mrs. Honeycutt paid a stated consideration of $5,000 for the property. Additionally, insurance payments on the property, interest and other finance charges totaled $536.95, making her total expenditures $5,536.95. That she has been unable either to live in or rent the dwelling subsequent to vacating it is uncon-troverted. Hence, there is ample evidence supporting her testimony that the house in its actual condition at the time of the sale was worth nothing to her. Therefore, the difference between the actual value of the house at the time of sale and what it would have been worth had it been as represented approaches $5,536.95. The jury verdict of $4,250 is thus somewhat less than that which could have been appropriately awarded to Mrs. Honeycutt through application of the principle enunciated in Boriss, supra, and can be said to represent an effort by the jury to allow some value for the land.

Viewing the evidence with the attendant presumptions leads us to conclude there was no error in the proceedings below.

AFFIRMED.

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


author: BOOKOUT, Judge.

text:
    Donald McCLENDON v. STATE.
    8 Div. 801.
    Court of Criminal Appeals of Alabama.
    June 15, 1976.
    Rehearing Denied June 29, 1976.

      Carnes & Carnes, Albertville, for appellant.
    William J. Baxley, Atty. Gen., and James S. Ward, Asst. Atty. Gen., for the State.
   BOOKOUT, Judge.

Second degree burglary; sentence: two years.

At approximately 11:00 P.M. on July 3, 1975, Officer Glenn Kilpatrick observed three men entering a 1969 or 1970 green Camero which had been parked near Den-ney Motors in Albertville. For reasons known only to himself, he pursued the Camero, but lost contact with it and returned to Denney Motors. Upon arriving there, he discovered some windows that had been broken. Officer Kilpatrick then put out an all-points bulletin on the green Camero.

On July 4, 1975, at approximately 3:00 A.M., Officer Kilpatrick again observed a 1969 or 1970 green Camero, which was in the process of being stopped by another patrol car. He approached the Camero, which contained three men. The men’s names were Frankie Brown, Sherman Campbell and Donald McClendon, the appellant. Officer Kilpatrick asked the driver for his driver’s license. At this time Kilpa-trick spotted beer cans on the floor in the front and back seats of the car. The occupants of the Camero appeared to have been drinking and were arrested for “. violating the prohibition law. . . .” (R.p. 46).

The appellant was given the required Miranda warnings. He subsequently confessed to being an accomplice to the burglary of Denney Motors. Property taken from Den-ney Motors was found in a chicken house in the rear of the house of appellant’s companion, Sherman Campbell, where appellant had indicated the property was located.

The appellant presents six arguments, any one of which he asserts is a sufficient basis upon which to reverse the trial court’s decision.

I

The appellant contends the trial court’s refusal to grant the appellant “youthful offender” status was error. We do not agree.

At the time of the burglary and of the arraignment, the appellant was seventeen years old. Previous to arraignment, he had been convicted of V P L in Boaz. He also had two other charges pending against him when he was arraigned. These two charges were for burglaries committed contemporaneously with the burglary of Denney Motors.

The Youthful Offender Act, Title 15, § 266(1) et seq., Code of Alabama 1940, Recompiled 1958, vests in the trial judge almost absolute discretion to grant or deny Youthful Offender status after making an appropriate investigation. We find no abuse of discretion in the trial judge’s denial of Youthful Offender treatment under the circumstances enumerated above. See: Clemmons v. State, 294 Ala. 746, 321 So.2d 238 (1975).

II

The appellant contends that the confession was inadmissible as the State failed to independently prove the corpus delicti. The indictment charged that the appellant “. . . did break into and enter . . ” Denney Motors. Appellant argues that there was no evidence that the breaking was into and cites Brown v. State, 55 Ala. 123 (1876) and Scott v. State, 22 Ala.App. 380, 115 So. 853 (1928).

In Brown, supra, the evidence showed the defendant had hidden in a store until after closing time and then had broken out. In Scott, supra, the evidence showed no signs of any breaking, and the victim testified that he did not know if the doors and windows had been shut.

On their facts, Brown, supra, and Scott, supra, are clearly distinguishable from the instant case. Here, all the windows and doors were locked when the building was closed on the afternoon of July 3. A window was subsequently broken and property was removed from inside the building. There was no contention that the appellant or his confederates had hidden in the building before closing time.

Circumstantial evidence may afford satisfactory proof of the corpus delicti. A voluntary confession may be introduced where the circumstantial evidence supports the reasonable inference that a crime has been committed. Taylor v. State, 276 Ala. 232, 160 So.2d 641 (1964). The facts in the present case support the reasonable inference that Denney Motors was broken into.

Ill

The appellant contends the trial court erred in refusing to give appellant’s Requested Charge No. 4, which reads as follows:

“The Court charges you that you are not to consider any confession or incriminating statement which it is said the Defendant made unless such confession or statement is corroborated and supported by other evidence.”

The appellant submits that the jury could consider the adequacy of the corpus delicti proof, i. e. whether Denney Motors was broken into. Hill v. State, 207 Ala. 444, 93 So. 460 (1922). Appellant’s argument pertaining to Charge No. 4 appears to be that a jury must not consider a confession unless convinced that the corpus delicti had been proven. However, in Hill, supra, the court held that where there are inconclusive facts and circumstances which tend to show the corpus delicti, a confession may be used to satisfy the jury beyond a reasonable doubt as to the corpus delicti.

In Bice v. State, 47 Ala. 38 (1872), the following charge was requested:

“. . . ‘If the confessions of the defendant are not corroborated, a strong presumption arises that they are not true.’ . . .”

In Rice, supra, there was a prima facie showing of the corpus delicti, and the charge was refused. There was a prima facie showing of the corpus delicti in the present case, and thus Charge No. 4 was properly refused.

IV

The appellant contends that his confession was inadmissible as it was the product of coercion or of a promise of lighter treatment. The evidence on this issue is in conflict. The transcript in this case is 189 pages long. Over half the transcript is devoted to determining whether or not the confession was voluntary.

The trial court ruled the confession was voluntary. The evidence presented at trial was capable of supporting the inference that the rules of freedom and voluntariness were observed. The ruling of the trial judge was supported by substantial evidence, and we are not convinced that the trial court’s conclusion was palpably contrary to the weight of the evidence. McNair v. State, 50 Ala.App. 465, 280 So.2d 171, cert. denied 291 Ala. 789, 280 So.2d 177 (1973).

There is one item of uncontroverted evidence which must be considered. The investigating officer, Tommy Cole, told Frankie Brown and the appellant that the police had lifted some fingerprints from the scene of the crime. Officer Cole told them that if they had committed the burglary they might as well confess in order to save everyone the time and trouble of sending the fingerprints off for identification. (R.p. 64). The appellant and Frankie Brown then confessed.

Officer Cole testified that the police did in fact have some fingerprints at the time of his interrogation of the appellant. In light of such testimony, we hold that the voluntariness of the confession is not negated by reason of Officer Cole informing the appellant of the existence of the fingerprints. Such amounted to neither a threat nor a promise of reward, and we find nothing improper in Officer Cole making such a statement to the appellant.

V

The appellant contends that his arrest was illegal and therefore the confession should be excluded as “fruit of the poisonous tree” per Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). We hold that Officer Kilpatrick had probable cause to arrest the appellant for violation of the prohibition law.

By our holding in this regard, we do not say that mere presence in an automobile where prohibitive liquors or drugs are found is sufficient for a conviction. In the present case, the appellant was seventeen. He was sitting in the back seat of a car and there were beer cans in the back seat. Officer Kilpatrick testified that he could tell the appellant had been drinking. Marshall County is a dry county, and there was probable cause to arrest the appellant under the aforementioned circumstances.

The record is void of any reference as to why the Camero was stopped by the other patrol car. Apparently, the ear was stopped because of the all-points bulletin which had been put out over the police radio approximately four hours earlier.

A report received over police radio, that persons fitting a certain description were travelling in a certain described automobile are wanted in connection with a felony, is sufficient probable cause to stop such vehicle and make an investigation. Crane v. State, 55 Ala.App. 619, 318 So.2d 315 (1975). Also see: Daniels v. State, 290 Ala. 316, 276 So.2d 441 (1973).

Pursuant to Alabama’s “stop and frisk” statute, a law enforcement officer, “may stop any person abroad in a public place whom he reasonably suspects is committing, has committed or is about to commit a felony or other public offense, and make demand of him, his name, address and an explanation of his actions.” After stopping such person, the officer has a right to make a cursory search for a dangerous weapon for his own protection. If the officer finds a weapon, “or any other thing the possession of which may constitute a crime, he may take and keep it until the completion of the questioning, at which time he shall either return it, if lawfully possessed, or arrest such person.” Title 15, § 118(1)— (2), Code of Alabama 1940, Recompiled 1958,1973 Cumulative Pocket Part (Act No. 157, Acts of Alabama 1966, Approved August 19, 1966).

This Court upheld the stop, the search and the arrest of a defendant pursuant to the “stop and frisk” statute where the stop was occasioned by an alert received by a police radio dispatch in Bates v. State, 48 Ala.App. 489, 266 So.2d 155 (1972), cert. denied 289 Ala. 740, 266 So.2d 160; cert. denied 410 U.S. 942, 93 S.Ct. 1359, 35 L.Ed.2d 608 (1973).

Either Officer Kilpatrick, acting on his prior observation of the vehicle, or the other officers acting on the radio dispatch, could have reasonably suspected that the occupants of the vehicle had committed the burglary, and thus could have lawfully stopped them to demand an explanation of their actions. Upon stopping the vehicle, any of the officers had the further right to look in the car to see that no dangerous weapon was in reach of the occupants. Upon seeing the illegal beverages and observing the demeanor of the occupants, coupled with the smell of alcohol, it cannot be said that the officers exceeded their authority in making the arrest. Likewise see Title 15, § 154, Code of Alabama 1940.

The appellant questioned Officer Kilpa-trick concerning the reason for the stop. However, in asserting that his arrest was illegal, the appellant failed to sufficiently apprise the trial court of the contentions which he presents to us, that the arrest was illegal because the stop was unexplained.

VI

The final contention of the appellant is that the trial court erred in allowing Officer Kilpatrick to testify about certain events leading up to the appellant’s arrest. He testified that he had previously seen a 1969 or 1970 green Camero, containing three men, near Denney Motors, late on the night of July 3, 1975. This was some four hours before the appellant’s arrest. The exact time of the burglary of Denney Motors was unknown.

Officer Kilpatrick’s testimony is circumstantial evidence that places a similar automobile, to that in which appellant was travelling, at the scene of the crime. Certainly such was relevant, and the weight to be given such evidence was for the jury to determine.

AFFIRMED.

TYSON, HARRIS and DeCARLO, JJ., concur.


author: PER CURIAM.

text:
    In re Don McCLENDON v. STATE of Alabama. Ex parte Don McClendon.
    SC 1943.
    Supreme Court of Alabama.
    Jan. 7, 1977.
    T. J. Carnes, Albertville, for petitioner.
    William J. Baxley, Atty. Gen., and Van-zetta Penn Durant, Asst. Atty. Gen., for the State, respondent.
   PER CURIAM.

WRIT QUASHED AS IMPROVIDENTLY GRANTED.

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

EMBRY and BEATTY, JJ., dissent.


text:
    James Howard DEWRELL, Jr., alias v. STATE.
    4 Div. 473.
    Court of Criminal Appeals of Alabama.
    Oct. 5, 1976.
    Rehearing Denied Dec. 7, 1976.

      James M. Prestwood, Andalusia, for appellant.
    William J. Baxley, Atty. Gen., Vanzetta Penn Durant, Asst. Atty. Gen., for the State, appellee.
   PER CURIAM.

The indictment in this case charged the appellant with the offense of murder in the second degree. The jury returned a verdict of guilty of manslaughter in the second degree and fixed his punishment at twelve months imprisonment in the county jail. The court entered judgment in accordance with the verdict.

The case arose out of an automobile collision on a public highway and three persons died as a result thereof. The appellant was the driver of one of the cars, and the deceased persons were riding in the other car. The appellant admitted in open court during the trial of the case that the three persons named in the indictment as having been killed died as a result of the injuries received in the automobile accident.

The appellant in his brief filed in this appeal makes only one claim of error in the trial of the case. It is contended by the appellant that the chain of custody of the blood taken from the appellant a short time after the collision was not sufficiently established to allow the introduction into evidence the results of alcohol content test made by the toxicologist.

In connection with that contention, the witnesses testified in substance as follows:

Wilton Cox testified he arrived at the scene of the collision within minutes after 12:30 a. m.; that no one else was there other than the people in the cars; that he drove about one-half mile to a telephone and called the Andalusia Police Department; that he went back to the scene of the accident; that the people were then out of the cars; that on one else was there; that the defendant was present; that Officer Robert Harrell came to the scene about 1:00 a. m., and that the appellant left in the police car.

W. R. Harrell, a State Trooper, testified he received a call about the collision at 1:00 a. m. and proceeded to the scene, that he got there about 1:05 a. m.; that he placed the appellant under arrest; that he smelled intoxicating beverages on him and turned him over to Policemen Knox and Williamson of the Andalusia Police Department; that later that night he saw Deputy Don Harrell in front of the jail and that Don Harrell gave him some blood samples.

Policeman Jerry Dean Williamson testified he and Sergeant Knox went to the scene, and State Trooper W. R. Harrell turned the appellant over to them; that he smelled alcohol on the appellant, carried him to jail, and left him in the front office with a person in the jail.

Deputy Don Harrell testified that he saw appellant about 1:30 a. m. in the county jail and carried him to Columbia General Hospital; that he smelled alcohol on him; and that Dr. Moore treated him. He testified that he saw Dr. Moore take a blood sample from the appellant; that he gave it to him and he kept it in his possession, then turned it over to Trooper Robert Harrell, his brother.

Trooper Robert Harrell testified that he met his brother, Deputy Don Harrell, near the courthouse before daylight; that he gave him the blood sample, identified as being taken from the appellant; that the sample was in two tubes; that he did not remember how the sample was marked, or if it was marked; and that Deputy Don Harrell that afternoon gave the sample to Trooper Whitworth, who kept it in his possession until he delivered it to the toxicologist.

Dr. Morgan Moore testified that he treated appellant shortly after 1:50 a. m., October 18,1975; that he took a blood sample in a little test tube type thing with a rubber stopper, that there were two of them; and that he believed he used a piece of tape and wrote appellant’s name on it to mark the sample.

Trooper R. W. Whitworth testified that on October 18, 1975, in the afternoon, he received from Trooper W. R. Harrell two vials of blood; that he carried them to his home and put them in his refrigerator because the crime lab was closed; that he took them out the next Tuesday afternoon about 3:00 o’clock; that they were in the same condition when he took them out of the refrigerator as they were when he put them in it; and that he delivered them to Richard Dale Carter at the crime lab in Enterprise.

Richard Dale Carter testified that he was a criminalist employed by the Alabama Department of Toxicology in Criminal Investigation. After being qualified as an expert in testing blood to determine alcoholic content, he further testified that on October 21, 1975, he received from Trooper R. W. Whitworth two standard vacutainers of blood, and that if he remembered right, they were wrapped in the standard hospital form; that the form had Pete Dewrell’s name on it, and that he did not remember if the tubes did or did not; that he ran a test on the blood and found that the blood samples contained .24 per cent ethyl alcohol. This witness identified a form that he said was around the tubes containing the blood and held there with a rubber band. The form was admitted in evidence. That exhibit shows the blood was drawn in the presence of Deputy Don Harrell at 3:10 a. m. to be tested for blood alcohol. Pete Dewrell’s name was on it and it listed “Physician Moore,’’ and was dated “10-18-75.”

In Oury v. State, 53 Ala.App. 240, 298 So.2d 661, State Trooper Strength received from Oury three bags of heroin. Strength opened one or two of the bags and testified the contents were brownish-white looking powder. The next day Strength turned the heroin over to Bob Eddy, a deputy sheriff. Strength did not put his name or initials on the packets. Eddy carried the packets to his office and there looked at the contents and testified it had the appearance of white milk or sugar. He put the packets in a manila envelope, put Oury’s name on it with other identifying information, sealed it, and wrote his name across the seal. He put the envelope in a cabinet in his office and locked it; then he removed the envelope from the cabinet four days later and delivered it to Van Pruitt, State Toxicologist, at his office in Huntsville.

John Kilbourn, Assistance State Toxicologist at Huntsville, testified he opened the envelope, described the contents to his secretary, and resealed the envelope. Some days later, Kilbourn opened the envelope, analyzed the contents, and found it to contain heroin. We here quote from the opinion in that case, Oury v. State, supra:

“Appellant strenuously insists that the proper predicate was not laid for the admission of the heroin in evidence due to a break in the chain of custody. We do not agree. It is true that the envelope was delivered to Mr. Van Pruitt, Toxicologist in charge of the Huntsville Office, and that Mr. Pruitt did not testify that he delivered it to Mr. Kilbourn who made the chemical analysis. But it is also true that Mr. Kilbourn took possession of the envelope that was delivered to Mr.. Pruitt on July 27, 1972, while in the laboratory and he then and there opened the envelope and dictated its contents to his secretary and resealed the envelope and kept it in his possession until he made the analysis on August 14th. After the analysis was made, Mr. Kilbourn resealed the envelope and kept it in his possession until it was opened in court and marked ‘State’s Exhibit 1.’ The evidence as to the custody and possession of the envelope and its contents sufficiently established there was no missing link in the chain of identification. The identification and continuity of possession were sufficiently shown, affording ample assurance of the authenticity of ‘State’s Exhibit 1’ and the analysis conducted by the toxicologist. Powell v. State, 47 Ala. App. 582, 258 So.2d 923; Green v. State, 42 Ala.App. 439, 167 So.2d 694; Lackey v. State, 41 Ala.App. 46, 123 So.2d 186; Dennison v. State, 259 Ala. 424, 66 So.2d 552.”

We find no missing link in the chain of identification in the case before us. The identification and continuity of possession of the blood taken by Dr. Moore from appellant was clearly and sufficiently shown to allow the testimony of Richard Dale Carter, Criminalist, as to the alcohol content in said blood. The ruling of the trial court in that respect is without error.

We have searched the record for error and have discharged our statutory duty in that respect and have found no error injuriously affecting the substantial rights of appellant.

The foregoing opinion was prepared by the Honorable L. S. Moore, Supernumerary Circuit Judge, serving as a Judge of this Court under Section 2 of Act No. 288, July 7, 1945, as amended; his opinion is hereby adopted as that of the Court.

We affirm the judgment addendum.

AFFIRMED.

All the Judges concur.


author: SHORES, Justice.

text:
    Ex parte James Howard DEWRELL, Jr.
    SC 2281.
    Supreme Court of Alabama.
    Jan. 21, 1977.
   SHORES, Justice.

WRIT DENIED.

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


text:
    Bobby MOSS, alias v. STATE.
    1 Div. 738.
    Court of Criminal Appeals of Alabama.
    Dec. 7, 1976.
    Rehearing Denied Jan. 4, 1977.
    Warren L. Finch, Mobile, for appellant.

      William J. Baxley, Atty. Gen., and Carol Jean Smith, Asst. Atty. Gen., for the State.
   BOOKOUT, Judge.

Appellant was convicted of selling phen-cyclidine, a controlled substance. The evidence, including testimony by the appellant, clearly establishes that the appellant sold the drug in question to a police informant. Appellant was sentenced to a term of three years in the penitentiary.

After a review of the record, we conclude that there is only one issue subject to review. The jury returned a general verdict of guilty and counsel for the appellant asked that the jury be polled. The first four jurors polled replied that the verdict of guilty was their true verdict. The following then occurred:

“MRS. MAY: Mr. Clemmons, is that your true verdict?
“MR. CLEMMONS: Not really.
“THE COURT: Let the jury return to the jury room and further consider this matter. I can’t accept the verdict in view of the statement of the juror, that it is not really his verdict. The verdict as I have told you must be unanimous. So I’m going to ask you to please return to the jury room and take the indictment and the other documents back in the jury room with you and consider the matter further.”

Appellant then moved for a mistrial, which was denied by the court. The jury retired to the jury room at 3:49 P.M. and returned to the courtroom at 4:30 P.M. The court recessed until 9:00 A.M. the next day, stating that the polls were closing at 6:00 P.M. and he was letting the jury off in order that they may go vote. The jury returned the next morning, retired at 9:23 A.M. and returned to the courtroom at 9:30 A.M. with a verdict of guilty. On being polled again, all jurors responded that the guilty verdict was their true verdict.

Appellant argues that the trial court’s instructions for the jury to continue deliberations amounted to undue influence on the jury to reach a verdict when they were unable to agree. In support of that argument, he cites Holladay v. State, 20 Ala.App. 76, 101 So. 86 (1924) and Lowery v. State, 23 Ala.App. 191, 122 So. 603 (1929).

In Holladay, after the jury had deliberated until about 11:30 P.M., all believing that they would have no accommodations for the night, they were told by the sheriff that the judge would keep them together forty-eight hours if they did not reach a verdict. Shortly thereafter, the trial judge instructed the jury that they should agree upon a verdict, whereupon the jury returned about fifteen minutes later with a verdict of guilty. The Court of Appeals held that the sheriff’s remark, coupled with the trial court’s instructions, possibly influenced the verdict and thus reversed and remanded the conviction.

In Lowery, supra, a reversal was mandated again because of an improper remark by the sheriff to the jury. During the deliberations of the jury in that case, a juror went to the door and informed the sheriff that, they had not yet reached a verdict. It was around 5:00 P.M., and the jury was divided between conviction and acquittal. The sheriff, without reporting to the trial judge, told the jury that they would have to stay there. The Court of Appeals stated:

“. . . This was an unwarranted interference by the sheriff in the trial, with a tendency to coerce a verdict from a jury, in a case where he not only exceeded his authority, but was financially interested to the extent of his fees and the $ 50 reward.”

We easily distinguish both Holladay and Lowery, supra, from the instant case. Here, there was no exertion by the trial judge of any influence on the jury whatsoever. He merely informed them he could not accept a verdict which was not unanimous and instructed them to continue their deliberations. Near the end of the work day, he called the jury back into the courtroom, recessed early so they could go to the polls and vote in an election, and reconvened the court the next morning. The record fails to show that any juror was lead to believe by the sheriff or the trial court that they would be confined or put to any inconvenience due to their failure to reach a unanimous verdict.

Title 30, § 101, Code of Alabama 1940, is as follows:

“When a verdict is rendered in either a civil or criminal case, and before it is recorded, the jury may be polled, on the requirement of either party; in which case they must be asked severally if it is their verdict; and if any answer in the negative, the jury must be sent out for further deliberation.”

The trial judge followed Section 101 to the letter, and we fail to find any error committed on his part.

AFFIRMED.

All the Judges concur.

      . See also: Jones v. State, 56 Ala.App. 444, 322 So.2d 735, cert. denied Ala., 322 So.2d 741 (1975).


text:
    James Barnette COOK v. STATE.
    6 Div. 202.
    Court of Criminal Appeals of Alabama.
    Dec. 7, 1976.
    Rehearing Denied Jan. 4, 1977.
    Frederick A. Erben, Birmingham, for appellant.
    William J. Baxley, Atty. Gen., and Barry V. Hutner, Asst. Atty. Gen., for the State.
   BOOKOUT, Judge.

Violation of Uniform Controlled Substances Act; sentence: two years.

On June 6, 1975, at approximately 5:00 P. M., the police searched a residence at 1430 24th Street, North, in Birmingham. The search was conducted with a warrant which was issued pursuant to a tip from a reliable informant. The police found a foil packet on the top shelf in a pantry immediately adjacent to the kitchen. The packet contained 79 milligrams of powder, 6.16 milligrams of which were heroin. That amounted to a speck of the illegal substance. (28,-350 milligrams equal one ounce.) In addition the police found 68.2 grams (approximately 2.4 ounces) of marijuana in a paper sack located in a stove pipe beneath the steps in the basement. The appellant, his wife, his child and apparently another adult were present when the search took place. The appellant was indicted, tried and convicted for possession of heroin and possession of marijuana, alleged in the conjunctive in a one count indictment.

The appellant presents several arguments which at first blush would appear to require this case to be reversed. However, we need only consider one of those arguments at this time.

At the end of the State’s ease, the appellant moved to exclude the State’s evidence for failure to prove possession. The appellant contends the trial court erred to reversal in denying the motion. We are constrained to agree.

It is obvious that the appellant was not in actual possession of the contraband. The State argues that the appellant had constructive possession of the substances. Three elements essential for proof of possession of contraband are set out in DeGruy v. State, 56 Ala.App. 521, 323 So.2d 406, cert. denied 295 Ala. 399, 323 So.2d 411 (1975). Those elements are:

“. . . (1) actual or potential physical control (2) intention to exercise dominion and (3) external manifestations of intent and control. . . .”

The State offered no proof that the appellant owned, leased, or lived in the residence where the contraband was found. Although the residence had been under surveillance for approximately two weeks prior to the search, no one testified that the appellant or his family were ever at the residence other than the afternoon of the search. There was no testimony that the appellant had any knowledge of or connection with the contraband found by the police.

For aught that appears in the transcript of evidence, the appellant and his family could have entered the residence for the first time immediately prior to the search. They may have been there on a social visit. Their actual status on the premises is left to speculation and conjecture. Mere presence in a place where contraband is found is not equivalent to constructive possession. DeGruy, supra; Radke v. State, 292 Ala. 290, 293 So.2d 314, affirming 52 Ala.App. 397, 293 So.2d 312 (1974); Williams v. State, (1976) Ala.App., 340 So.2d 1144.

The State failed to prove either actual possession or constructive possession. Even had the facts constituted constructive possession, that alone would have been insufficient. The late Presiding Judge Price stated in Rueffert v. State, 46 Ala.App. 36, 237 So.2d 520 (1970):

“The well established rule in cases involving possession of prohibited liquors is that where actual manucaption is not shown and constructive possession is relied upon, the state must show beyond a reasonable doubt, in addition to the constructive possession, that the accused knew of the presence of the prohibited beverages. Grimes v. State, 38 Ala.App. 94, 76 So.2d 684; Davis v. State, 40 Ala.App. 609, 119 So.2d 236. The rules of evidence in a prosecution for possession of marijuana are the same as those applicable in every other criminal case.”

When concerned with the sufficiency of evidence, we can only review the evidence presented to the jury at trial. There was no evidence presented that the appellant had knowledge of or possession of the contraband in question.

REVERSED AND REMANDED.

TYSON, P. J., and CATES, J., concur.

HARRIS and DeCARLO, JJ., concur in result only.


text:
    David STINSON v. STATE.
    3 Div. 673.
    Court of Criminal Appeals of Alabama.
    Jan. 4, 1977.
    Donald R. Harrison, Montgomery, for appellant.
    William J. Baxley, Atty. Gen., and Winston D. Durant, Asst. Atty. Gen., Montgomery, for the State.
   BOOKOUT, Judge.

Second degree murder; sentence: thirty years.

On February 19,1974, the appellant fatally shot his wife, Elaine Stinson. Evidence was presented by the State to the effect that the appellant and the deceased were having marital difficulties because of the appellant’s protracted absences from the marital abode. The deceased told the appellant to move out of the house and to go live with his alleged paramour in Lowndes County. The appellant asked the deceased if she really meant it and on being informed she did, he began to move his clothes out of the house and into his truck. Before the argument, the appellant had paid approximately $35.00 to the deceased to give to her mother toward the utility bill. During the argument, he requested that $15.00 be returned. The request was refused. The appellant drove to his brother’s house and obtained a .12 gauge shotgun. He then returned to the deceased’s residence and shot her to death in front of a room full of witnesses. He then went back to his brother’s house and deposited the shotgun there.

The appellant’s version of the events of February 19, 1974, was essentially the same as the State’s with two exceptions. The appellant testified that the amount of money in dispute was closer to $1,500.00 than to $15.00. It seems that the deceased was the appellant’s bookkeeper and that she had been writing checks without the appellant’s authorization. The appellant also testified that the deceased told him that the proceeds of the unauthorized checks had gone to the support of her paramour. The appellant said that in addition to the above, the appellant informed him that a legitimate check in the amount of $300.00 had bounced due to her duplicity. The deceased then threw the cancelled checks and a photograph of her alleged lover at the appellant. At that time the appellant drove to his brother’s house and got the shotgun.

I

Appellant contends that malice, an essential element of second degree murder, was not proved in the present case. We do not agree. Malice may be presumed from the use of a deadly weapon unless the circumstances surrounding the killing rebut the presumption. Fulghum v. State, 291 Ala. 71, 277 So.2d 886 (1973). Here the jury, whether they believed the State’s or the appellant’s version of the facts, could reasonably believe that the surrounding circumstances did not rebut the presumption of malice. One circumstance which was common to both versions was the appellant’s methodical acquisition of the shotgun. That circumstance clearly strengthens the presumption of malice.

II

The appellant sought to substantiate his version of the facts relating to the photograph of deceased’s paramour in his cross-examination of the State’s witnesses. All of the State’s witnesses denied any knowledge of the picture or of the deceased’s alleged lover. Although it was not contained in the record, it appears that the trial court sequestered, or as commonly referred to in Alabama, placed all prospective witnesses “under the Rule.” Boyd v. State, 51 Ala.App. 324, 285 So.2d 134, cert. denied 291 Ala. 773, 285 So.2d 138 (1973).

During the cross-examination of the deceased’s mother, she was overcome with emotion and forced to leave the courtroom in order to regain her composure. During her absence, she appears to have told a subsequent witness, her daughter-in-law, that the attorneys asked her questions about a picture. The appellant contends the trial court erred to reversal in not excluding the testimony of the two witnesses due to their apparent violation of “the Rule.” Again, we do not agree.

The trial court made the following statement when this matter was brought to his attention:

THE COURT: Motion denied. The only evidence in the case was that she said he showed her a picture she had never seen before.”

It is highly speculative that the witnesses’ conduct caused any injury to the appellant. Boyd, supra. This was especially so because there was no evidence that the two witnesses discussed what the photograph represented or depicted. The invocation of “the Rule” is a matter which is solely within the trial court’s discretion. We find no abuse of discretion in the manner in which the alleged violation of “the Rule” was dealt with in this case.

AFFIRMED.

All the Judges concur.