text:
    Eugene V. COX, d/b/a Cox Insurance Agency v. James PRIDGEN et al., d/b/a P&B Welding and Fabricating.
    78-102.
    Supreme Court of Alabama.
    June 29, 1979.
    John M. Milling, Jr., for Hill, Hill, Carter, Franco, Cole & Black, Montgomery, for appellant.
    Richard C. Belser and John M. Bolton, III, Montgomery, for appellees.
   BEATTY, Justice.

This is an appeal from a declaratory judgment which found that the defendant, Eugene V. Cox, doing business as Cox Insurance Agency, was liable for any sums of money which James Pridgen, Frank French and Ronald Butler, doing business as P & B Welding and Fabricating, a partnership, would have to pay as a result of an injury to the latter’s employee, Wilson. We affirm.

For the plaintiffs it was asserted that in 1974 the Cox Agency was asked by the plaintiffs to provide workmen’s compensation and general liability insurance coverage to the partnership. According to Ms. Martha Pridgen, plaintiffs’ employee, the coverage requested was for workers in both Alabama and Tennessee. But before that coverage was effected by payment of premium the plaintiffs stopped their work in Tennessee and thus decided not to purchase that protection. Later, however, the plaintiffs resumed operations in Tennessee, and Mr. Pridgen contacted Mr. Cox concerning workmen’s compensation coverage for that work: “I told him I wanted to reapply for the insurance that I had not paid the premiums on.” Thereafter Pridgen went' to Cox’s office and signed an insurance application which, concededly, was incomplete at that time but later completed by Cox.

In due course a workmen’s compensation policy, covering Alabama operations only, was issued by an insurance carrier, and later one of the plaintiffs’ workmen was injured on the Tennessee job site. The insurance carrier denied coverage. The employee sued these plaintiffs in Tennessee, and the plaintiffs in turn sued the Cox Agency and the insurance carrier in Montgomery County circuit court. That court granted summary judgment in favor of the insurance carrier, but held the defendant Cox liable for whatever sums the plaintiffs might be required to pay as a result of the Tennessee lawsuit brought against these plaintiffs.

The principle of law applicable to these facts is succinctly stated in Highlands Underwriters Ins. Co. v. Elegante' Inns, Inc., Ala., 361 So.2d 1060, 1065 (1978):

“. . . when an insurance agent or broker, with a view to compensation, undertakes to procure insurance for a client, and unjustifiably or negligently fails to do so, he becomes liable for any damage resulting therefrom. . . . ” (citation omitted)

Our review is predicated upon the principle that the trial court’s decree ore tenus must be affirmed if it is fairly supported by credible evidence under any reasonable aspect, and thus such a finding will not be disturbed unless palpably erroneous. Tyra v. Burns, 279 Ala. 84, 181 So.2d 899 (1966); Rogers v. Thornton, 254 Ala. 66, 46 So.2d 809 (1950).

The defendant’s position is that there was no agreement or undertaking to provide insurance coverage in Tennessee. For this position the defendant relies heavily on the fact that the application for insurance, signed by the plaintiff Pridgen, stated:

The undersigned employer hereby applies for workmen’s compensation insurance in Alabama. .

It should be noted, however, that the evidence disclosed a request to the defendant’s representative for Tennessee coverage in the original application, dated December 2, 1974, even though that application, like the application of March 7, 1975 (the second application) disclosed that “Alabama” was typed onto a vacant space in the quoted sentence. Although both applications themselves are restricted to Alabama (“This application is for such state only; if coverage is desired in additional states the employer should consult the insurance company”), the first application discloses information that the plaintiffs did business in other states (“Do you operate in other states? Fes ”). Where this question is asked in the second application the word “no” is typed in the blank space provided. This discrepancy was explained in the testimony of Mrs. Pridgen, who was the plaintiffs’ secretary in 1974 when the first application was filed by Mr. French, one of the partners, and by Mr. Pridgen, another partner.

Mrs. Pridgen testified that she told a Mr. Sims of the Cox Insurance Agency that “we needed general liability . . . and Workmen’s Compensation insurance for the workers and that we were working in Tennessee and Alabama.” Mr. Sims filled out the application and she signed it for her husband. She received a premium notice for the workmen’s compensation policy which recited that the policy would not be issued until the premium was paid.

Mr. French had a conversation with Mr. Sims in December, 1974 when Sims came to the plaintiffs’ shop with a bill for the liability insurance. French told Sims that no workmen’s compensation insurance was needed at the time “because we didn’t have sufficient employees,” however they discussed the possibility of future work in Tennessee and the need for that insurance in the future.

Mr. Pridgen testified to the renewal of work in March, 1975 and to a conversation with Mr. Cox at that time. He acquainted Mr. Cox with his desire to secure workmen’s compensation insurance and asked whether he should send the premium to the original company. He stated that Mr. Cox replied that “it would be no problem to get the insurance, to come by his office and . . . they’d send ... an application.” Later, in Mr. Cox’s office, Mr. Cox did not question him about the location of his work — Pridgen stated that he was asked only about his projected payroll and gross sales. In his later testimony Mr. Cox said that he filled out the second application without any information from Pridgen other than his payroll. Pridgen did not recollect anything being on the application he signed at that time (the second application) “but it possibly could have been something on the other side of it.” He was unaware that the application was restricted to Alabama operations.

Defendant Cox earnestly insists that no evidence was introduced to establish that Mr. Sims 'undertook to provide the work-* men’s compensation coverage. To the contrary, he insists that the opposite conclusion must be reached because following the initial conversation, the plaintiffs received a letter from the Southeastern Compensation Rating Bureau stating that their risk was being assigned to Travelers Insurance Company and “enclosing a signed copy of the application of insurance.” This application, Cox urges upon us, requested coverage for Alabama only. Moreover, Cox insists that Mr. Pridgen did not inform him of the Tennessee operations, and Mr. Cox testified that he was unaware of them until after the accident. Cox also points out that Mr. Pridgen was directed to Mr. Cox on the second occasion by a Mr. Tallant, to whom Mr. Pridgen had gone for information concerning a bond for a job in Aliceville, Alabama. This bond required workmen’s compensation insurance and Mr. Cox’s understanding was that the coverage was being procured for the Aliceville job.

In Timmerman Insurance Agency v. Miller, 285 Ala. 82, 229 So.2d 475 (1970) this Court cited with approval a proposition contained in Appleman, Insurance Law and Practice, Vol. 16, § 8841:

“An insurance broker is the agent of the insured in negotiating for a policy, and owes a duty to his principal to exercise reasonable skill, care, and diligence in effecting insurance. * * * And while such broker is not obligated to assume the duty of procuring a policy, without consideration for his promise, he must exercise ordinary care in the performance of such duty when assumed, * * *.

We believe the evidence supports the reasonable conclusion that the Cox Agency agreed to procure workmen’s compensation insurance coverage. The initial conversation between Mrs. Pridgen and Sims, the conversation between Sims and French, the request of Pridgen to Mr. Cox, the reference to business in other states contained on first application, and the fact that other coverage, consistent with the original request, was procured, all tend to establish the agreement in question. To be sure, the evidence is not conclusive, but essentially it made a factual issue for the trial judge hearing the evidence ore tenus. We cannot state that his conclusion on that evidence was palpably wrong. Accordingly, his decree must be, and is, affirmed.

AFFIRMED.

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


source: Caselaw Access Project

author: JONES, Justice.

license: Public Domain

text:
    Norma L. HANCOCK v. ALABAMA HOME MORTGAGE COMPANY, INC.
    78-136.
    Supreme Court of Alabama.
    June 29, 1979.
    John F. Kizer, Jr., James N. Brown, III, Birmingham, for appellant.
    Grover S. McLeod, Birmingham, for ap-pellee.
   JONES, Justice.

This is a premises liability case involving the duty of care owed by a landlord to a tenant’s social guest, when the tenant’s guest is injured in an area other than the demised premises. Plaintiff/Appellant Norma L. Hancock, appeals from a summary judgment in favor of Defendant/Appel-lee, Alabama Home Mortgage Company. Mrs. Hancock received injuries from a fall sustained while traversing from her nephew’s apartment unit to the apartment complex’s swimming pool.

Restatement (Second) of Torts, § 360 (1965), states:

“A possessor of land who leases a part thereof and retains in his own control any other part which the lessee is entitled to use as appurtenant to the part leased to him, is subject to liability to his lessee and others lawfully upon the land with the consent of the lessee or a sublessee for physical harm caused by a dangerous condition upon that part of the land retained in the lessor’s control, if the lessor by the exercise of reasonable care could have discovered the condition and the unreasonable risks involved therein and could have made the condition safe.”

This has long been the rule in this State. In Mudd v. Gray, 200 Ala. 92, 93, 75 So. 468, 469 (1917), it was held:

“ . . . the plaintiff was injured on a stairway jointly owned and controlled by the defendants, and reserved by them for the use in common of the different tenants. Where such is the case, the authorities seem to be very generally agreed that it is the duty of the landlord to use reasonable care to keep in good repair and safe condition such reserved portion of the premises; and if he negligently fails to do so, and the third person on the premises on the express or implied invitation of the lessee, is injured on account of such defective or unsafe condition, while exercising due care, the lessor is responsible therefor.”

Furthermore, Restatement (Second) of Torts, § 360 (1965), Comment F, provides:

“ . . .If the terms of the lease entitle the lessee to permit third persons to come upon the part of the land retained within the lessor’s control, it is immaterial whether they come as invitees of the lessee or as his licensees. It is the lessor’s business, as such, to afford his lessee facilities for receiving all persons whom he chooses to admit for any legitimate purpose. Therefore, a person who, as between himself and the lessee, is a licensee enters the land on a matter directly connected with the business of the lessor. He is, therefore, entitled to expect that the lessor will exercise reasonable care to discover and remedy any condition which makes his acceptance of the lessee’s license dangerous to him.”

The duty of the landlord to a tenant’s guest who is injured in an area other than the demised premises is clear. The issues for the fact finder include:

1) whether the area wherein the guest was injured was an area over which control was retained by the lessor;

2) whether the area was one that the lessee (or his guest) was entitled to use as appurtenant to the part leased;

3) whether the guest was lawfully in the area with the consent of the lessee; and

4) did a dangerous condition posing an unreasonable risk exist in the area, one which could have been discovered and made safe in the exercise of reasonable care by the landlord?

Restatement (Second) of Torts, § 360 (1965), Comment E, further provides:

“ . . the lessor is subject to liability to such persons only as the lessee, under the expressed or implied conditions and terms of the lease, is entitled to admit to such part of the land.”

This Court has affirmed the trial Court’s grant of Defendant’s motion for summary judgment in two recent premises liability cases. Sledge v. Carmichael, 366 So.2d 1117 (Ala.1979); Tice v. Tice, 361 So.2d 1051 (Ala.1978). In each of these cases the facts were clear and undisputed. In each case, there was no evidence from which reasonable inferences could be drawn by the fact finder on which liability could be predicated.

In contrast, because the evidence in the instant case (consisting solely of Plaintiff’s deposition) is not altogether clear, we are constrained to hold that the movant has not met its burden of eliminating every genuine issue of fact; nor can we say the the evidence, as we understand it, presents a purely legal issue for proper disposition by way of summary judgment.

We refrain from detailing the Plaintiff’s deposition in view of the impending trial of this cause upon remand. Suffice it to say that much of her testimony relates to referenced physical objects and to a photograph of the accident scene which was introduced in aid of her deposition. Our efforts have proved less than satisfactory in attempting to understand with reasonable certainty the situs of Plaintiff’s fall, the physical layout of the route traversed by her immediately before her fall, the lighting conditions at the time and place of her fall, etc.

This observation is not intended to be critical of counsel, for we have been favored with excellent briefs and oral arguments of counsel for each of the parties. The problem, at least in part, lies in our inability to translate, with any reasonable degree of certainty, such references which appear in the record as “indicating,” “pointing,” “marking of photograph,” etc., a problem which is typical of many negligence cases when reviewed in a summary judgment posture.

REVERSED AND REMANDED.

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


author: MADDOX, Justice.

text:
    Willie E. OZLEY, Jr. and Sara E. Ozley v. Thomas W. GUTHRIE and Marie D. Guthrie.
    78-52.
    Supreme Court of Alabama.
    June 29, 1979.
    Robert C. Boyce, III, of Furner, Boyce, Nave & Thomason, Bessemer, for appellants.
    Robert E. Paden and Jake V. Bivona of Paden, Green & Paden, Bessemer, for ap-pellees.
   MADDOX, Justice.

This action arose out of what began as a boundary line dispute.

Thomas and Marie Guthrie owned Lot 24; Wilber and Mavis Collins owned adjacent Lot 25. There was a dispute between them over the location of the boundary line between them. The Guthries sold their lot to Willie E. and Sara E. Ozley on April 3, 1973; the Collins’ dispute over the boundary continued with the new owners. On January 15, 1976, the Collinses sued the Ozleys, and asked the court to fix the true boundary. The Ozleys answered the complaint and, in a third party action, sued the Guthries, claiming that the Guthries, when they sold the lot to them, had misrepresented the facts, and had breached not only their contract, but also warranties they had made at the time.

At the close of the evidence in this original action, the Guthries moved for a directed verdict. At first, the trial court granted the motion only as to the counts alleging fraud and denied it as to the other counts, but upon reconsideration, the court directed a verdict as to all claims. On July 2, 1976, the court established the boundary line at a location adverse to the Ozleys’ interest. This judgment was never modified or altered and no timely appeal was taken.

On December 8,1976, the Ozleys filed the instant suit against the Guthries. They alleged misrepresentation and breach of an express warranty in and concerning the sale of Lot 24.

The Guthries filed a motion for summary judgment, claiming:

(1) That the cause of action upon which the prior judgment was rendered is the same cause of action as the one involved in the present action.

(2) That the parties to the former action are bound by the judgment rendered therein, the same as the parties to the present action.

(3) That judgment was rendered on the merits of the case and that judgment was final and has not been modified or set aside, and is still in full force and effect.

Summary judgment was rendered in favor of the Guthries and the case dismissed on September 21, 1978. The Ozleys appeal. We affirm.

The purpose of third party practice provided for in Rule 14, A.R.C.P. is to avoid multiple suits, to allow an entire controversy to be disposed of in one action, thereby saving time and cost and avoiding the serious handicap to the defendant of a time difference between the judgment against him and the judgment in his favor against the party liable over to him. Campbell Contr. Eng’rs Inc. v. Water Works and Sewer Bd. of the City of Prichard, Ala., Inc., 52 Ala.App. 129, 290 So.2d 194 (1974).

It is a well settled principle of our law that matters once adjudicated are settled and determined. This principle is embodied in the doctrine of res judicata. The essential elements of res judicata are: (1) a prior judgment rendered by a court of competent jurisdiction; (2) substantial identity of the parties in the two suits; (3) identity of issues in the two suits, and (4) prior judgment rendered on the merits. Wheeler v. First Alabama Bank of Birmingham, 364 So.2d 1190 (Ala.1978). Where these elements are present, as they are in the present case, the former judgment is an absolute bar to any subsequent suit on the same cause of action, including any issue which was or could have been litigated in the prior action. McGruder v. B & L Construction Co., 331 So.2d 257 (Ala.1976).

The trial court’s grant of summary judgment is to be affirmed.

AFFIRMED.

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


text:
    CONSULTING ENGINEERING SERVICES, INC., a corporation, v. URBAN CONSULTANTS, INC., a corporation.
    78-381.
    Supreme Court of Alabama.
    June 29, 1979.

      Kenneth T. Hemphill, Montgomery, for plaintiff-appellant.
    Jack Crenshaw, Montgomery, for defendant-appellee.
   JONES, Justice.

The Plaintiff/Appellant, Consulting Engineering Services, Inc., takes this appeal from the following judgment, rendered by Judge Joseph D. Phelps, sitting without a jury, in favor of the Defendant/Appellee, Urban Consultants, Inc.:

“THIS CAUSE was submitted upon testimony taken before the Court, numerous Exhibits, and the Depositions of W. J. Nesmith, former Mayor of the City of Cullman, and Herman Kerr.
“In this action, the Plaintiff seeks to recover $28,929.60, allegedly due under a contract of August 16, 1974. Under that contract, the Plaintiff was to perform for the Defendant all of the engineering services which the Defendant was required to furnish under its contract with the City of Cullman. That contract was for the development of a planned Industrial Park, in Cullman.
“Both the contract between the Defendant and the City of Cullman, and the contract between the Plaintiff and the Defendant, provided that the first engineering services were those required under the Paragraph heading ‘(1) Preliminaries’. It is undisputed that the Plaintiff provided those engineering services, and prepared plans, profiles, grading plans, preliminary drawings, outline specifications, and a construction cost estimate. Those preliminary services were satisfactory to the Defendant and the Defendant paid the Plaintiff’s bill therefor in the amount of $14,464.80. This represented payment in full of the engineer’s portion of the fee paid by the City of Cullman for ‘Preliminaries’. The evidence is undisputed that Defendant collected no other amount from the City except for those services entitled ‘Preliminaries’.
“Plaintiff claims that the plans submitted were sufficient to constitute final plans and that the Plaintiff performed additional engineering services, for which the Defendant is obligated. However, under both the contract between the Plaintiff and the Defendant, and between the Defendant and the City of Cullman, no further engineering services were required until after approval by the City of the preliminary design documents. The testimony of the Director of Community Development of the City, was that the City of Cullman was without sufficient funds to complete the project in accordance with the preliminary design documents and that the City never gave approval thereof. Plaintiff’s Exhibit 9, the letter from the then Mayor of the City of Cullman, W. J. Nesmith, stated among other things:
“ ‘The City of Cullman is unable to enter construction of Cullman Industrial Park with plans submitted by your office.’
“Since the second portion of Plaintiff’s contract, entitled ‘(2) Contract Documents’, was only to be-.done from ‘the approved preliminaries’, and since said preliminaries were not approved, it follows that the Plaintiff was neither authorized nor directed to perform any such additional services at the expense of the Defendant. It is, therefore,
“ORDERED, ADJUDGED,' AND DECREED that the Plaintiff have and recover nothing from the Defendant. Let the costs be taxed against the Plaintiff, for which let execution issue.
“Done this 26th day of June, 1978.
“/s/ Joseph D. Phelps. CIRCUIT JUDGE”

We note at the outset that this is an ore tenus case, and the law is well settled that, in such cases, this Court is precluded from altering a lower court’s findings of fact unless those findings are clearly erroneous. Donnelly v. Doak, 346 So.2d 414 (Ala.1977). It is agreed that Consulting Engineering performed the services called for under the contract “Preliminaries” and has been paid in full for such services. Furthermore, it is stipulated that, after the item “Preliminaries,” Consulting Engineering never furnished Urban Consultants with any other document, contract document, specifications, or anything else.

Consulting Engineering contends that the plans it submitted were sufficient to constitute final plans and were, in fact, used as final plans in the completion of the Industrial Park in the City of Cullman. The contract is clear, however, that any work beyond the “Preliminary” phase was to be performed only upon approval by the City of the preliminary plans. Although disputed by Appellant, there is credible evidence that the City never gave final approval to the plans because the cost estimates were more than it could afford. Appellant, therefore, cannot recover for breach of contract where further work was never authorized nor, as stipulated, performed.

Much of Appellant’s evidence at trial was submitted in an attempt to prove that the preliminary plans were in fact used by the City of Cullman as final plans. Even if this contention is accepted as true, it is not dispositive of the issue of Appel-lee’s breach of contract. The evidence is undisputed that Appellee itself collected no amount from the City of Cullman subsequent to the submission of the preliminary plans. The final construction was not performed by Appellee, but was performed, instead, by Frank Hollis and Associates.

Appellant cannot recover from Ap-pellee for breach of contract for work it was never authorized to perform. Nor can Appellant recover of the Appellee on a theory of quantum meruit — even if the plans were used by the City and others as final plans — where there is no credible evidence that Appellee had benefited in any way or was guilty of plagiarism or misappropriation of the plans.

AFFIRMED.

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


author: BLOODWORTH, Justice. FAULKNER, Justice

text:
    Billie G. MATHIS et al. v. GENERAL ELECTRIC CORPORATION et al.
    CER 18.
    Supreme Court of Alabama.
    July 6, 1979.
    R. Ben Hogan, III and Hogan, Smith & Alspaugh, Birmingham, for Seymour L. Ellison.
    Bibb Allen of London, Yancey, Clark & Allen, Birmingham, and Alson R. Kemp, Jr. and Michael H. Salinsky, of Pillsbury, Madison & Sutro, San Francisco, Cal., for appel-lee, Western Elec. Co., Inc.
    James H. Porter, of Cleary, Lee, Porter, Evans & Rowe, Huntsville, for appellee, General Elec. Corp.
   BLOODWORTH, Justice.

Pursuant to the Alabama Constitution, Art. 6, § 140, as amended by Amendment No. 328, § 6.02(b)(3), the United States Court of Appeals for the Fifth Circuit has certified to this Court a question of law which that court deems determinative of an appeal before it and on which there was, at the time, no clear controlling precedent in the decisions of this Court.

The plaintiffs filed suit for damages in the district court for eye injuries allegedly caused by exposure to radiation from radar equipment. The claims are for negligence or strict liability. The latest time that any of the plaintiffs was exposed was 1969, and the latest date any one of them discovered his condition was allegedly January 5, 1972. Suit was filed on November EO, 1973.

The Question Certified is as follows:

“Assuming that each plaintiff discovered his cataract condition on the date that he testified he discovered it, as set out above, does the Alabama statute of limitations bar his action?”

We accepted the certification. Subsequently, we answered this very question in Garrett v. Raytheon, 368 So.2d 516 (Ala.1979) where we held that the statute of limitations for injuries suffered as a result of radiation exposure begins to run when the plaintiff is last exposed to the radiation.

The Question Certified is answered in the affirmative; therefore, the plaintiffs’ claims are barred by Code • 1975, § 6-2-39(a)(5).

CERTIFIED QUESTION ANSWERED.

TORBERT, C. J., and MADDOX, AL-MON, SHORES, EMBRY and BEATTY, JJ., concur.

FAULKNER and JONES, JJ., concur specially.

FAULKNER, Justice

(concurring specially).

I concur specially.

The case is distinguishable from my dissent in Garrett v. Raytheon, 368 So.2d 516 (Ala.1979) because Mathis discovered his injuries more than one year before he filed suit.

JONES, J., concurs.


text:
    Raymond C. SEYBOLD v. MAGNOLIA LAND COMPANY and C. P. Taylor.
    77-720.
    Supreme Court of Alabama.
    July 6, 1979.

      Bayless E. Biles, of Wilkins & Bankester, Bay Minette, for appellant.
    Champ Lyons, Jr., Mobile, for appellees.
   MADDOX, Justice.

The sole issue presented presently is whether there was a final judgment which would support an appeal.

Four plaintiffs sued a real estate company and its sales agent for breach of contract, fraud, and specific performance arising out of an alleged promise to maintain certain access roads and bridges. While two of the plaintiffs appear to be husband and wife and have the same interest in their land, the other two plaintiffs bought entirely different tracts, though they are in the same development area. While the suit arose as a result of at least three different sales transactions, it seems clear that much of the evidence of breach or fraud would be the same with all transactions.

The suit was filed by Raymond C. Sey-bold, C. M. Buck, Mary Mills Buck, and Dennis Cooper, against the two defendants, Magnolia Land Company and C. P. Taylor. Magnolia filed a motion to sever, alleging a “misjoinder of parties.” The trial court granted this motion by a bench note entry: “11-21-77 Def. motion to sever granted. Harry J. Wilters, Jr., Judge.”

It is not completely clear what the effect of this order was, whether it was intended to create 2, or 3, or 4 lawsuits out of the one, or whether it was intended merely to order separate trials. In any event, there has been a trial of Seybold’s claim, and he now appeals from a directed verdict. While the effect of the order is not completely clear, it is clear, from a reading of the “case action summary sheet” and the record on appeal, that after the November 21, 1977, order, the parties continued to file pleadings relating to all four plaintiffs’ claims. Apparently, everything relating to all four plaintiffs’ claims is present in the record in this appeal. For instance, the record contains three motions for summary judgment — one by Buck, one by Cooper and one by Seybold — and motions for summary judgment filed by the defendants against all plaintiffs. While the three motions for summary judgment filed by the plaintiffs list three different sets of plaintiffs, they all carry the same number; Civil Action CV-77-500063.

The crucial question is: Was there, in fact, a severance under Rule 21, ARCP, or merely a determination to have separate trials under Rule 42, ARCP? Mr. Justice Bloodworth, writing for the Court in Key v. Robert M. Duke Insurance Agency, 340 So.2d 781 (Ala.1976), indicated that in answering this question, “[t]he substance of the court’s action, not its form, controls.” 340 So.2d 783. There, the Court stated: “When, however, a claim is severed from the original action, as authorized by Rule 21, ARCP, a new action is created, just as if it had never been a part of the original action . . .and “ . . the new action is no longer connected to the original action . . .”

We have determined that the trial judge’s order did not “sever” the cases, but merely provided for separate trials.

On July 14, 1978, the case went to trial before a jury and after the close of the plaintiff’s case, the court granted the defendants’ motion for a directed verdict, and later entered a judgment adverse to Sey-bold. This judgment was not final and appealable because it was entered “as to one or more, but fewer than all of the . parties.” Rule 54(b) ARCP. As a consequence, the appeal must be dismissed. McKiever v. King & Hatch, Inc., 366 So.2d 264 (Ala.1978); Key v. Robert M. Duke Ins. Agency, 340 So.2d 781 (Ala.1976).

Trial court may re-enter and certify the judgment and upon timely appeal from that order, the case may be heard upon the present record and briefs of the parties if they so desire. Thames v. Gunter-Dunn, Inc., 365 So.2d 1216 (Ala.1979).

APPEAL DISMISSED.

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


author: HOLMES, Judge.

text:
    STATE of Alabama, DEPARTMENT OF INDUSTRIAL RELATIONS v. Calvin L. DESLATTES.
    Civ. 1795.
    Court of Civil Appeals of Alabama.
    May 23, 1979.
    Rehearing Denied June 20, 1979.

      George C. Cocoris, Gen. Counsel, State of Alabama, Dept, of Industrial Relations, and Wesley Romine, Asst. Gen. Counsel, State of Ala., Dept, of Industrial Relations, Montgomery, for appellant.
    John E. Moeller, Jr., and James G. Lee, Tuscaloosa, for appellee.
   HOLMES, Judge.

This is an unemployment compensation case.

Plaintiff filed a claim for unemployment compensation benefits which was denied by the local claims examiner and the compensation referee. Plaintiff successfully appealed the referee’s denial to the Board of Appeals for the Department of Industrial Relations. The Board’s decision was affirmed in the court below and the Department appealed.

The dispositive issue on appeal is whether the trial court erred in its determination that an employer’s voluntary payment of a separation allowance does not disqualify a claimant from unemployment compensation benefits. We hold it did not and affirm.

The record reveals the following: Plaintiff and other employees of Gulf States Paper Company were involuntarily separated from employment upon Gulf States’ decision to close its Tuscaloosa paper mill. At the time of the closing, plaintiff had worked for Gulf States for over thirty-five years.

Upon plaintiff’s separation, Gulf States, though not legally obligated to do so, agreed with its employees that it would pay a lump sum termination allowance. The amount of the termination allowance was calculated on the number of years an employee had worked for Gulf States.

After termination, plaintiff received a lump sum allowance computed on his thirty-five years and nine months of employment with the company. He also received vacation and holiday pay for ten weeks of accrued vacation time.

Subsequent to plaintiff’s receipt of these benefits, he applied for unemployment compensation. Upon the referee’s denial of benefits, plaintiff appealed to the Department’s Board of Appeals.

The Board found plaintiff qualified for benefits under § 25-4-71, Code of Ala.1975, on the basis that the company’s payment of the lump sum termination allowance was not a payment of “wages” which would render plaintiff ineligible for benefits. In this regard, the Board specifically found that the payment plaintiff received under the plan was “indemnity for the loss of the job” and was not “wages.” In the alternative, the Board found that the termination allowance was a “dismissal payment” which under § 25-4-16(8), Code of Ala.1975, is statutorily excluded from the definition of “wages.” In addition to finding that plaintiff had not received “wages,” the Board also determined that the payment was not made with respect to any particular week or weeks after plaintiff’s separation from work but that the allowance was paid with respect to weeks prior to the date employment was terminated.

Upon the circuit court’s affirmance of the Board’s decision, the Department appealed.

The Department contends that pursuant to § 25-4-71, a claimant is disqualified for unemployment benefits if he receives a lump sum separation allowance. Specifically, the Department maintains that such remuneration is the payment of “wages” and that such “wages” are attributable to weeks subsequent to the date the employee was separated from employment. We disagree.

At the outset, we note that our Unemployment Compensation Act is remedial in nature: its beneficent purpose should be liberally construed and its disqualification provisions should be narrowly interpreted. Holmes v. Cook, 45 Ala.App. 688, 236 So.2d 352 (1970).

Under the Act, an individual is eligible for benefits if he is unemployed. § 25-4-77(4). An individual is deemed unemployed in any week if two conditions are satisfied: (1) he performs no services during that week and (2) with respect to which no wages are payable to him. The two conditions are not to be confused; an individual is not deemed unemployed even though he performs no services during a given week if he receives wages attributable to weeks after his termination from employment. § 25-4-71. See also Director of Dept. of Ind. Relations v. Butler, Ala.Civ. App., 367 So.2d 496 (1979).

In the instant case, there is no dispute that plaintiff rendered no services subsequent to his departure from the company. The Department contends, however, that plaintiff may not be deemed unemployed under § 25-4-71 because payment of the allowance is the payment of “wages” attributable to the weeks after termination from the job. We hold that plaintiff is unemployed as that term is defined in § 25-4-71.

The statute defines “wages” as every form of remuneration paid or received for personal services. § 25-4-16, Code of Ala.1975. “Wages,” with certain express statutory exceptions, does not, however, include remuneration which an employer is under no legal obligation to make. For example, § 25-4-16(8) provides that dismissal payments which an employer is not legally obligated to make are not considered “wages.”

There is further support for the conclusion that remuneration voluntarily made is not considered “wages.” Section 25-4-78(8) provides that a person who receives pension payments made pursuant to a contract, i. e., a legal obligation, is disqualified for benefits. Thus the converse is equally true; payments voluntarily made do not disqualify the claimant. See, e. g., Holmes v. Cook, supra.

In the case at bar, it is stipulated that the company paid its employees voluntarily, it was under no legal compulsion to do so. Inasmuch as the termination allowance was voluntarily made, it cannot be considered the payment of “wages” which disqualify an applicant under § 25-4-71. In addition, and as a factual question, we are mindful that the Board of Appeals found that the company’s payment of the allowance was not the payment of “wages” in that it was intended to award employees a “dismissal allowance” and/or as an “indemnity for loss of the job.”

We are further of the opinion that even assuming arguendo that the separation allowance in this instance can be considered “wages,” it is not attributable to weeks following termination from employment. As we noted above, in order for the receipt of “wages” to disqualify a claimant under § 25-4-71, the payment must constitute wages for the weeks following separation as opposed to payment for services rendered prior to termination of employment. Stated alternatively, the disqualifying provisions of § 25-4-71 apply to weeks with respect to which payments are made, not the week in which payment is received. See, e. g., Ackerson v. Western Union Tel. Co., 234 Minn. 271, 48 N.W.2d 338 (1951). The determination of whether payments are made with respect to weeks following separation from employment is a question of fact. See Schenley Distillers, Inc. v. Review Bd. of Ind., Employment S.D., 123 Ind.App. 508, 112 N.E.2d 299 (1953).

As we noted above, the Board of Appeals found that the termination payment did not apply to weeks following separation from the job. The trial court apparently agreed. We find support in the record for this conclusion.

The record indicates that plaintiff accumulated substantial job equity while serving his company for over thirty-five years. The value of this job equity was further enhanced by other benefits to which plaintiff was entitled such as hospital and medical coverage, seniority rights and profit sharing benefits. Thus, to this court it is plausible to conclude that the company intended the termination allowance to indemnify plaintiff for loss of his job and for services rendered prior to termination rather than compensation attributable to weeks subsequent to separation.

In addition, we observe that the company’s agreement is conspicuous in the absence of language that the plaintiff’s payment was intended to apply to weeks subsequent to separation. Contra, Fazio v. Unemployment Comp. Bd. of Rev., 164 Pa.Super. 9, 63 A.2d 489 (1949). Furthermore the computation of the amount of plaintiff’s benefit relates only to factors which occurred prior to separation of employment.

We are in agreement with the court in Southwestern Bell Tel. Co. v. Emp. Sec. Bd., 189 Kan. 600, 371 P.2d 134 (1962), which viewed the absence of such factors significant in its holding that a termination payment did not disqualify the claimant from receiving benefits. In so holding, the court stated:

In the absence of such provisions it may not be presumed that the contracting parties meant to pay wages for no services, and allocate such payments to a period after termination. Generally speaking, wages are tied to the week of work and not to the week in which they are paid. In order to associate pay with specific weeks, there must be some connection between the two. The termination allowances here involved were in no way related to or dependent upon the claimants’ employment status after termination. .
. All of the factors that went into the computation by which the amounts were fixed related to what had happened in the past. All were retrospective. The payments were not fixed with a view to the actual or probable duration of claimants’ unemployment; they would not have been diminished if the claimants had found jobs the next day, and they would not have been increased no matter how long the claimants remained unemployed. Rather, the amounts were fixed on the basis of one week’s pay for each completed year of credited service as employees, and such amounts were paid only because the claimants’ past records were approved by the company.
It is our opinion that the termination allowances received correlated with the claimants’ past performances and not with their future conduct or needs. They were based wholly upon, and thus were payable “with respect to” the period before the claimants’ employment terminated and not any period thereafter. We hold, therefore, that the claimants were “unemployed” . . 371 P.2d at 138. (Original emphasis)

We find the reasoning in Southwestern, supra, compelling and thus we hold that under § 25 — 4—71, plaintiff was unemployed in that he did not receive wages attributable to weeks subsequent to his separation from work.

The Department additionally contends that under § 25-4-78(6), Code of Ala.1975, the payment of a termination allowance bars a claimant’s eligibility for benefits. Section 25-4-78(6) provides that an individual is disqualified for benefits:

For any week with respect to which he is receiving or has received remuneration in the form of wages in lieu of notice, or a dismissal or separation allowance. (Emphasis supplied.)

The Department argues in essence that the language of this provision excludes eligibility regardless of whether the termination payment is considered to be the payment of “wages” or not. We do not so construe the statute.

It is the duty of this court to construe every word in each section of a statute consistent with other sections in pari materia. B. F. Goodrich Co. v. Butler, 56 Ala.App. 635, 324 So.2d 776, cert. quashed, 295 Ala. 401, 324 So.2d 788 (1975).

We are of the opinion that the legislature intended § 25-4-78(6) to disqualify a claimant only when he receives remuneration in the form of wages. The disqualification of § 25-4-78(6) obtains where the wages received are in lieu of (1) notice (to terminate), (2) a dismissal allowance, or (3) a separation allowance. Put another way, disqualification does not result by mere receipt of a separation allowance, payment must be in the form of wages in lieu of the allowance.

This construction of § 25-4-78(6) is consistent with other provisions of the Act. As we noted above, § 25-4-16(8) excludes dismissal payments from the statutory definition of wages, if such payments are voluntarily made. It would be an anomaly for the legislature to declare an individual eligible for benefits under § 25-4-71 even though he receives remuneration in the form of a dismissal payment voluntarily made, and disqualify the same individual when he receives such an allowance under § 25-4-78(6).

Because this court is bound to construe the sections of a statute consistently, Butler, supra, we are of the opinion that receipt of a separation allowance must be accorded no different treatment than that afforded a dismissal allowance. We conclude, therefore, that since the allowance which plaintiff received is not considered a “wage” for purposes of eligibility under § 25-4-71, he is likewise not disqualified from benefits for receiving the same voluntary allowance under § 25-4-78(6).

To further substantiate what we have said, it is significant to this court that § 25-4-78(6) makes no express distinction between a termination allowance voluntarily made as opposed to one which is made under a legal obligation. However, § 25-4-78(8) does not disqualify an individual from compensation unless he receives pension benefits pursuant to an employer’s legal obligation. Therefore, construing subsections (6) and (8) of § 25-4-78 consistently, disqualification under § 25-4-78(6) can only result when a termination allowance is paid by an employer under a legal obligation to do so. Because the record clearly shows Gulf States made plaintiff’s payment voluntarily, § 25-4-78(6) does not disqualify him from benefits.

The Department additionally contends that as a matter of policy, a claimant who receives both a termination allowance and compensation benefits is unjustly enriched at the expense of the employer. We disagree.

We are of the opinion that the legislature did not intend to restrict or discourage an employer’s decision to give termination payments to its employees supplemental to benefits under the Act. As we noted above, our statute, unlike those of some other states, does not expressly disqualify a claimant for benefits where a termination payment is voluntarily made. See, e. g., Schenley Distillers, supra. No reason is readily apparent why double payments voluntarily made conflict with the overall legislative scheme and therefore, we do not find the practice violative of public policy. Accord, Meakins v. Huiet, 100 Ga.App. 557, 112 S.E.2d 23 (1959). This is especially so, where as here, the purpose for which the payment was given the claimant is absolutely unrelated to any of the purposes which our Act seeks to subserve. Furthermore, we observe that in this instance, it is not Gulf States who complains that the payment of the allowance and compensation benefits operates unjustly.

The plaintiff-appellee, in a well reasoned brief, contends that the court below erred in holding that the receipt of vacation and holiday pay disqualified him for benefits for a ten-week period. It is not appropriate for this court to discuss this issue, inasmuch as appellee has failed to present the contention by way of cross appeal. Price v. South Central Bell, 294 Ala. 144, 313 So.2d 184 (1975).

For the foregoing reasons, this case is due to be affirmed.

AFFIRMED.

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


author: BLOODWORTH, Justice.

text:
    Ex parte STATE of Alabama, DEPARTMENT OF INDUSTRIAL RELATIONS.
    78-669.
    Supreme Court of Alabama.
    July 20, 1979.
   BLOODWORTH, Justice.

WRIT DENIED.

TORBERT, C. J., and FAULKNER, AL-MON and EMBRY, JJ., concur.


author: BOOKOUT, Judge.

text:
    Thomas J. REED, alias v. STATE.
    3 Div. 798.
    Court of Criminal Appeals of Alabama.
    Dec. 19, 1978.
    Rehearing Denied Jan. 16, 1979.

      George W. Dean, Destín, Fla., for appellant.
    William J. Baxley, Atty. Gen., and George W. Royer, Jr., Asst. Atty. Gen., for the State, appellee.
   BOOKOUT, Judge.

The' appellant was indicted for bribery, convicted of an attempt to commit that offense, and fined $500.

The indictment, in pertinent part, was as follows:

“COUNT I; The Grand Jury of said County charge that, before the finding of this indictment, Thomas J. Reed, alias Tom Reed, and Ronald Williams, alias Ron Williams, did directly or indirectly, wilfully and corruptly offer or promise a thing of value or personal advantage, to-wit: employment as attorney for the proposed Macon County Racing Commission at an annual salary of, to-wit: from $20,-000 to $50,000 per year, such Macon County Racing Commission to have been created and established by House Bill 247 of the 1975 Regular Session of the Alabama Legislature, to a member of the Legislature of the State of Alabama, to-wit: Thornton Dudley Perry, State Senator for the 23rd Senatorial District of Alabama during the 1975 Regular Session of the Alabama Legislature, such offer or promise being made to influence the said Perry in the performance of his public or official duties, to-wit: to obtain the act, vote, opinion, decision or judgment of the said Perry as State Senator in support of the said House Bill 247 in the Senate of Alabama during the 1975 Regular Session of the Alabama Legislature, against the peace and dignity of the State of Alabama,
“COUNT II: The Grand Jury of said County further charge that, before the finding of this indictment, Thomas J. Reed, alias Tom Reed, and Ronald Williams, alias Ron Williams, did, directly or indirectly, wilfully and corruptly offer or promise to a member of the Legislature of the State of Alabama, to-wit: Thornton Dudley Perry, State Senator for the 23rd Senatorial District of Alabama during the 1975 Regular Session of the Alabama Legislature, a thing of value or personal advantage, to-wit: that the said Reed would approve, support or vote for proposed amendments to House Bill 247 of the 1975 Regular Session of the Alabama Legislature, which House Bill 247 would have created and established the Macon County Racing Commission and which House Bill 247 with the proposed amendments would provide that the said Reed and the said Perry would each appoint two of the proposed five members of the said Commission, and that the said Reed would then appoint the said Williams as one of the members of the said Commission, and that the said Williams would then approve, support or vote for the employment of the said Perry by the said Commission as attorney for the said Commission at an annual salary of, to-wit: from $20,000 to $50,000 per year, such offer or promise being made to influence the said Perry in the performance of his public or official duties, to-wit: to obtain the act, vote, opinion, decision or judgment of the said Perry as State Senator in support of the said House Bill 247 in the Senate of Alabama during the 1975 Regular Session of the Alabama Legislature, against the peace and dignity of the State of Alabama.” ⅛

The offense charged is spelled out in Title 14, § 73, Code of Ala.1940:

“Any person who shall, directly or indirectly, offer, give, or promise any money, or thing of value, testimonial, privilege, or personal advantage, to any executive or judicial officer or member of the legislature to influence him in the performance of any of his public or official duties, shall be guilty of bribery, and, upon conviction, shall be punished by imprisonment in the penitentiary for not less than two nor more than ten years.”

The issue in this case has been concisely stated in the appellant’s reply brief:

“There is one and only one basic issue raised by this appeal and that issue must not be clouded or confused by such issues as the admissibility of a co-defendant’s statement, of venue, of the trial court’s discretion in setting a trial docket, and so forth as argued at such length in the State’s brief.
“The issue here is simply whether the crime of bribery as defined and punished in the Alabama Constitution and the Alabama laws includes an ‘attempt to bribe,’ punishable by imprisonment. Since offers or promises to give a thing of value are attempts in themselves to give a bribe, there is no basis in law or in logic for a conviction of an ‘attempt to attempt to bribe.’ ”

Without elaborating on the testimony of each witness, it is sufficient to observe that ample evidence was submitted by the State which, if believed by the jury, would have supported a conviction for bribery as defined in Title 14, § 73, supra. That is, the appellant offered or promised a thing of value or personal advantage to a member of the legislature to influence him in the performance of his public or official duty. The evidence was conflicting, and the jury obviously was not convinced that the crime of bribery had actually been consummated, only that an attempt to do so had occurred.

It has long been held that conflicting evidence presents a jury question not subject to review provided the State’s evidence establishes a prima facie case. The weight to be given such evidence and the credibility of the witnesses are likewise questions reserved for the jury. Higginbotham v. State, Ala.Cr.App., 346 So.2d 525 (1977); May v. State, Ala.Cr.App., 335 So.2d 242 (1976).

The appellant contends that he could not be found guilty of an attempt under the provisions of Title 15, § 323, Code of Ala. 1940 [§ 15-17-1, Code of Ala.1975] because that statute applies only to crimes of which there are several degrees. To such contention, we merely point out that Title 14, § 42, Code of Ala.1940 [§ 13-9-3, Code of Ala. 1975], authorizes a jury to return a verdict of guilty of an attempt, to-wit:

“Upon the trial of an indictment for any offense, the jury may find the accused not guilty of the offense charged in the indictment, but, if the evidence warrants it, guilty of an attempt to commit such offense, without any special count in the indictment for such attempt.”

As the State’s evidence was sufficient to support a conviction for the offense charged in the indictment, we are now only concerned with the legal question of whether an attempt to commit that offense amounts to “an attempt to attempt” to violate that statute as contended by appellant.

An attempt to commit an offense consists of three elements: (1) the intent to commit the crime; (2) the performance of some overt act toward committing the crime; and (3) the failure to consummate the crime. Ard v. State, Ala.Cr.App., 358 So.2d 792, cert. denied, Ala., 358 So.2d 794 (1978).

In determining whether the overt act of a defendant falls short of actual consummation of an offense, the jury may believe part of the evidence of a witness and reject part. This is true unless all the evidence presented shows the consummation of the offense without any evidence to support a jury finding that the crime had not been completed. Cochran v. State, 42 Ala.App. 144, 155 So.2d 530, cert. denied, 275 Ala. 693, 155 So.2d 533 (1963). In the instant case where the evidence was conflicting as to whether or not an offense had been committed, the jury had sufficient leeway to find that the appellant intended to offer, promise, or give Senator Perry a thing of value, that he made an overt act toward doing so, but fell short of the intended illegal goal. The question remaining is whether such a finding by the jury would be legally permissible within the construction of the Constitution and statutes of this state dealing with bribery.

The wording of the bribery statute in question makes it a felony for a person to “offer” or “promise” a thing of value or personal advantage to a legislator to influence his performance of an official duty. Although the heading, title, or catchline of § 73, supra, is entitled “Bribing, or attempting to bribe executive, judicial, or legislative officer,” such phrase is merely a descriptive heading or catchline preceding the actual text of the law and is not considered a part of the law itself. This distinction between descriptive headings and law is now codified in § 1-1-14, Code of Ala.1975. Thus, the statute defines bribery not only as actually giving a thing of value, but offering or promising to do so. Thus, by finding the appellant guilty of an attempt, the jury has found him guilty of attempting to commit the offense of bribery, not attempting to attempt to commit bribery.

The appellant’s interpretation of the statute would appear that bribery is the giving of the thing of value, therefore, an offer or a promise to give a thing of value would be an attempt to bribe. Our statute is not worded in that light. Here, when the jury found him guilty of an attempt to bribe, they in effect found that he attempted to, directly or indirectly, offer, give, or promise a thing of value or personal advantage to Senator Perry. This, according to Title 14,. § 42, supra, the jury had a legal right to do.

An attempt to commit a felony or a misdemeanor is punishable as a misdemean- or, and this was so at common law. Corkran v. State, 203 Ala. 513, 84 So. 743 (1919); Morris v. State, 32 Ala.App. 278, 25 So.2d 54 (1946); Mote v. State, 17 Ala.App. 526, 87 So. 628 (1920); Burton v. State, 8 Ala.App. 295, 62 So. 394 (1913); 22 C.J.S. Criminal Law § 74.

Pursuant to Title 15, § 327, Code of Ala. 1940 [§ 15-18-3, Code of Ala.1975], a person convicted of committing a misdemeanor at common law or by statute, where the punishment is not specifically stated, shall be fined not more than $500 and may also be imprisoned in the county jail or sentenced to hard labor for the county for not more than six months. In the instant case, the appellant was found guilty of a misdemean- or pursuant to statute (also recognized at common law) and was fined $500 without the imposition of imprisonment in the county jail. We find the verdict and judgment to be in accordance with the law.

AFFIRMED.

All the Judges concur.


author: PER CURIAM. PER CURIAM.

text:
    In re Thomas REED, alias v. STATE of Alabama. Ex parte Thomas REED.
    78-262.
    Supreme Court of Alabama.
    May 25, 1979.
    As Corrected On Denial of Rehearing July 6, 1979.
    Alberta Murphy, Stanley Jay Murphy, Tuscaloosa, for petitioner.
    Charles A. Graddick, Atty. Gen., and John Gibbs, Asst. Atty. Gen., for the State, respondent.
   PER CURIAM.

We granted Defendant’s Petition for Writ of Certiorari to review the opinion of the Court of Criminal Appeals upholding Defendant’s conviction of a misdemeanor— the offense of attempt to bribe.

Defendant, a member of the State Legislature, was charged and tried for the felony offense of bribery of a public official (a fellow member of the Legislature). The statute under which Defendant was charged, § 13-5-31, reads:

Any person who shall, directly or indirectly, offer, give or promise any money or thing of value, testimonial, privilege or personal advantage to any executive or judicial officer or member of the legislature to influence him in the performance of any of his public or official duties shall be guilty of bribery and, upon conviction, shall be punished by imprisonment in the penitentiary for not less than two nor more than 10 years.

After two mistrials, Defendant was convicted of Attempt to bribe, a misdemeanor under § 13-9-3 (the attempt to commit a crime statute) which reads:

Upon trial of an indictment for any offense, the jury may find the accused not guilty of the offense charged in the indictment, but, if the evidence warrants it, guilty of an attempt to commit such offense, without any special count in the indictment for such attempt.

The jury’s verdict was in response to the trial Court’s instructions to the effect that conviction of a misdemeanor, as authorized by the general attempt statute, was a permissible option in the event they could not agree that the evidence warranted a finding of guilty of the charged felony. It is the propriety of this oral instruction that is challenged here.

We restate the issue: Because § 13-5-31 defines bribery — a felony — to include attempts to bribe, may an accused charged thereunder be convicted of a misdemeanor under § 13-9-3? We answer the question in the negative; and we reverse the conviction and render the cause.

We find our answer, at least in part, in our analysis of the case law interpreting the general misdemeanor — attempt statute. The Court of Appeals in Edwards v. State, 33 Ala.App. 386, 34 So.2d 173 (1948), addressed the meaning of this statute:

. . [This section] properly construed mean[s] where the evidence fails, under the required rule as to measure of proof, to show that the actual offense charged in the indictment has been committed as charged, then, if the evidence warrants it, the provisions of such [section] may be applied and a conviction had for a lesser offense which is necessarily included in the offense with which he is charged.” 33 Ala.App. at 387, 34 So.2d at 174.

In Broadhead v. State, 24 Ala.App. 576, 139 So. 115 (1932), the Court of Appeals expounded on the application of the statute:

“An attempt to commit a crime consists of three elements: (1) The intent to commit the crime; (2) performance of some act toward the commission of the crime; and (3) the failure to consummate its commission. In other words, in order that there may be an attempt to commit a crime, whether statutory or at common law, there must be some overt act in part execution of the intent to commit the crime, but which falls short of the completed crime; the difference between attempt and commission being that the act or step fails to produce the result intended.
“A criminal attempt to commit a crime consists of two important elements: First, an intent to commit the crime; and, second, a direct ineffective act done towards its commission. It follows that a failure to consummate the crime is as much an element of an attempt to commit it as the intent and the performance of an overt act towards its commission; and, where a crime has been actually committed, the second element or ingredient of an attempt is necessarily lacking, and a prosecution or conviction for an attempt to commit a crime could not be sustained for this reason.” 24 Ala.App. at 578, 139 So. at 117.

These quoted portions from Edwards and Broadhead were quoted with approval in Cochran v. State, 42 Ala.App. 144, 155 So.2d 530 (1963). By the very terms of the statute, it is the offer, or attempt, to influence, not the culmination of the influence, that consummates the crime — the felony of bribery.

We hold that the bribery statute under which Defendant was indicted and tried subsumes all activities and conduct which may be characterized as an attempt to bribe. That is to say, this bribery statute, by its very terms, includes, directly or indirectly, any “offer, [gift], or promise [of] any money or thing of value . . .to any . member of the legislature to influence him . . The statute defines the felony of bribery as including the attempt to influence — not as requiring the consummation of the influence.

It is pertinent to inquire: What possible set of circumstances would fall short of the proscribed conduct of § 13-5-31, and yet constitute the misdemeanor of the attempt to commit bribery? We are unable to postulate — with reasonably intelligible standards — a course of conduct which does not rise to the level of that course of conduct contemplated by this bribery statute, but which would be criminally cognizable as a lesser offense. This reinforces our conclusion that the general attempt statute is here inapplicable. To hold otherwise would be tantamount to a holding that the Legislature, through its enactment of the relevant statutes, intended that the jury could treat the same conduct as punishable either as a felony or as a misdemeanor. To the contrary, we opine that the Legislature intended that any conduct recognizable as a criminal offense under this bribery statute be punishable as a felony. Therefore, Defendant’s conviction of a misdemeanor — attempt to bribe — is unsustainable.

Under the evidence in this case, if the jury believed the weakest inferences of the testimony adverse to the accused on the bribery issue, it would have been their duty to return a verdict of guilty of bribery, the felony charged in the indictment. Having elected to convict Defendant of the misdemeanor of attempt to bribe, the jury necessarily acquitted him of the higher offense— the felony of bribery as charged. Code 1975, § 13-9-3.

We hold the Court of Criminal Appeals erred in upholding the action of the trial Judge in instructing the jury under the general misdemeanor-attempt statute. We reverse the conviction and render the cause.

REVERSED AND RENDERED.

BLOODWORTH, FAULKNER, JONES, ALMON, SHORES, EMBRY and BEATTY, JJ., concur.

TORBERT, C. J., and MADDOX, J., not sitting.

On Rehearing

PER CURIAM.

OPINION CORRECTED AND APPLICATION FOR REHEARING OVERRULED.

BLOODWORTH, FAULKNER, JONES, ALMON, SHORES, EMBRY and BEATTY, JJ., concur.

TORBERT, C. J., and MADDOX, J., not sitting.

      . The challenged portion of the trial Judge’s instruction to the jury was properly preserved by the Defendant’s timely objection, all of which appears in the record of the trial below.


author: JOSEPH J. MULLINS, Retired Circuit Judge. BOOKOUT, Judge,

text:
    James CORLEY, Alias James E. Corley v. STATE.
    6 Div. 761.
    Court of Criminal Appeals of Alabama.
    Jan. 30, 1979.
    Rehearing Denied March 6, 1979.
    Joel R. Chandler, Asst. Public Defender, Tuscaloosa, for appellant.
    William J. Baxley, Atty. Gen., and David W. Clark, Asst. Atty. Gen., for the State, appellee.
   JOSEPH J. MULLINS, Retired Circuit Judge.

This is an appeal from, the Circuit Court of Tuscaloosa County from two judgments revoking probations granted to the appellant, James Corley, in cases numbered 4714B and 6515B in the lower court.

On February 26, 1975 in case no. 4714B the appellant was duly convicted for receiving and concealing stolen property, and was sentenced to the penitentiary for 3 years and placed on probation for 8 years. On November 19, 1976 in case no. 6515B the appellant was duly convicted for burglary of a motor vehicle, and was sentenced to 7 years in the penitentiary and placed on probation for 8 years. On November 1, 1977 the following order was entered by the trial judge in eases nos. 4714B and 6515B:

.“It being made to appear to the Court that the probationer herein is delinquent as such, has violated the terms and conditions of probation, has absconded, has failed to make reports to probation officer, is reputed to have violated the criminal laws, has been idle and not gainfully employed, has been drinking intoxicating liquors and consorting with associates of bad repute and that a hearing should be had to determine whether probation herein should be revoked or other action taken by the Court. It is, therefore the order and judgment of the court and it is ordered and adjudged by the court that probationer herein is delinquent as such, and that probationer be, and hereby is, declared delinquent and that the running of probationer’s probationary period be and hereby is tolled and stopped and that capias and warrant forthwith issue for arrest of probationer and that when apprehended probationer be brought before the court for hearing for the determination of the truth of the charges made against probationer herein and what action should be taken by the court and whether probation herein should be revoked and order suspending sentence herein set aside.
Done and ordered this 1 day of November, 1977.
J. COLQUITT, JUDGE PRESIDING.”

On December 8, 1977 the appellant with his attorney appeared in open court and the court informed the appellant and his attorney of the charges against the appellant, and that appellant had been declared a delinquent, and of his rights at a hearing to revoke his probation, and continued both cases at the request of the appellant, and again on February 2, 1978 the appellant with his attorney appeared in open court and the court informed the appellant and his attorney of additional charges against the appellant and of his rights at a hearing to revoke his' probation.

The appellant denied the charges in both cases and requested an evidentiary hearing, and the court set the cases down to be heard on February 22, 1978 at 9:00 A.M. o’clock.

On February 22, 1978 the appellant with his attorney appeared in open court on the hearing to revoke appellant’s probation in cases numbered 4714B and 6515B. The matters were heard together.

On the hearing state called 5 witnesses and offered evidence that Holiday Motors, situated in Tuscaloosa, Alabama, was broken into and a cash box containing one thousand thirty-one dollars and eighty-seven cents was stolen; that the cash box was kept in a closet in the cashier’s office, and that the appellant’s fingerprints were lifted from the outer door knob of the closet door. All the evidence given on the hearing was transcribed and is in the record in full and consumes about fifty-seven pages. The appellant was allowed to fully cross-examine all of state’s witnesses, and was advised of his right to, and given ample opportunity to procure evidence in his behalf but did not do so, and did not testify in his behalf.

At the conclusion of the hearing the court stated that it found sufficient evidence to reasonably satisfy it that the defendant has violated the terms and conditions of his probation by participation in and taking part in, and being suspected of or being the person who committed an alleged burglary of Holiday Motors while on probation and that in and of itself is sufficient justification for the court to revoke probation in cases numbered 4714B and 6515B and the same are hereby revoked, and that the defendant be given credit for time he has been in custody pending the hearing on revocation of probation.

The following judgment was entered in case nos. 4714B and 6515B:

“February 22, 1978. The question of alleged misconduct of probationer James Corley, alias, herein coming on to be heard in open Court on this date with probationer, and his attorney, Joel Chandler, present at this hearing after due notice thereof had been duly given to him, evidence taken and cause submitted and the court finding, and it being made to appear to the Court that said probationer has violated the terms and conditions of his probation herein since being placed on probation and is not being rehabilitated as hoped or contemplated by the law the Court is of the opinion that such probation should be revoked. It is, therefore, ordered and adjudged by the Court, and it is the order and judgment of the Court that said probationer James Corley, alias, has violated the terms and conditions of his probation and that the probation of probationer James Corley,- alias, herein be, and the same hereby is, revoked and that he serve his full sentence herein.
J. COLQUITT, JUDGE PRESIDING.
Pursuant to Act No. 58, Second Spec. Sess. 1975, Ala. Leg., it is ordered that the defendant be credited with all of his actual pre-sentence jail time. The Circuit Clerk is ordered to certify the actual time spent incarcerated pending trial as required by law.
This the 22 day of February, 1978.
J. COLQUITT, JUDGE PRESIDING.
February 22, 1978. Then came defendant in open court and appealed and gave Notice of Appeal of Revocation to the Court of Criminal Appeals of Alabama, and defendant’s said sentence is not suspended pending said appeal.
J. COLQUITT, JUDGE PRESIDING.”

We hold that the record fully supports the court’s judgments, and the court did not abuse its discretion in revoking appellant’s probation. Russell v. State, Ala.Cr.App., 359 So.2d 1165; Armstrong v. State, 294 Ala. 100, 312 So.2d 620; Code Of Alabama, Recompiled 1958, Title 42, Sec. 24.

We have searched the entire record for errors prejudicial to the appellant and have found none.

The judgment of the trial court should be affirmed.

The foregoing opinion was prepared by the Honorable JOSEPH J. MULLINS, a retired Circuit Judge, serving as a Judge of this Court; his opinion is hereby adopted as that of the Court.

The judgment below is hereby affirmed.

AFFIRMED.

HARRIS, P. J., and TYSON, DeCARLO and BOWEN, JJ., concur.

BOOKOUT, J., dissents with opinion.

BOOKOUT, Judge,

dissenting:

I would remand to the trial court for complete compliance with the mandate of Armstrong v. State, 294 Ala. 100, 312 So.2d 620 (1975). The record shows that the appellant was arrested on an allegation that he violated his probation, and on December 8, 1977, he and his attorney were informed verbally in open court of certain charges against him. Then on February 2, 1978, the appellant and his attorney again appeared in open court and were informed of additional charges placed against him. The hearing on revocation of probation held on February 22, 1978, concerned only one of the allegations specified on February 2 and none of those specified on December 8.

Armstrong, supra, requires written notice to the probationer of the claimed violations of probation. Since the appellant and his attorney were apprised of the alleged probation violations in open court and proceeded to a hearing twenty days later without objecting, I consider the first requirement of Armstrong to have been waived. However, the record contains no written statement by the trial judge as to the evidence relied upon and reasons for revoking probation.

At the end of the evidence, the trial court stated:

“. . . Based on the evidence in this case, the court finds sufficient evidence to reasonably satisfy it that the defendant has violated the terms and conditions of his probation by participating in and taking part in and being suspect or being the person who committed an alleged burglary of . Holiday Motors, Tuscaloosa, Alabama, while on probation. . ” (Emphasis supplied.)

I therefore would remand for the trial court to make a written statement as to the evidence relied on and the reasons for revoking probation, otherwise that requirement by the Alabama Supreme Court in Armstrong, supra, is just empty words with no force or effect.


author: PER CURIAM.

text:
    In re James CORLEY, alias v. STATE. Ex parte James Corley.
    78-378.
    Supreme Court of Alabama.
    June 29, 1979.
    Ralph C. Burroughs, Public Defender, Tuscaloosa, for petitioner.
    Charles A. Graddick, Atty. Gen., and Jimmy L. Debardelaben, Asst. Atty. Gen., for the State, respondent.
   PER CURIAM.

SUBMISSION OF PETITION FOR WRIT OF CERTIORARI IS SET ASIDE. PETITION IS DISMISSED ON MOTION OF THE PETITIONER.

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


text:
    Louie Ellis LEWIS, alias, v. STATE.
    6 Div. 701.
    Court of Criminal Appeals of Alabama.
    April 17, 1979.
    Rehearing Denied May 22, 1979.
    C. Michael Quinn, Birmingham, for appellant.

      Charles A. Graddick, Atty. Gen., and David W. Clark, Asst. Atty. Gen., for the State, appellee.
   BOOKOUT, Judge.

Rape; sentence: life imprisonment.

The record indicates that the alleged offense occurred on December 7, 1976, a little after 1:00 p. m. at Park Manor Apartments, Birmingham, Alabama, in the office/apartment of the resident manager. The prose-cutrix was the resident manager. The evidence for the State revealed that the appellant entered the prosecutrix’s apartment on the pretext of filling out an application to rent an apartment. While inside the apartment, appellant forced the prosecutrix at gunpoint to submit to sexual intercourse against her will.

The prosecutrix was then dragged naked around the apartment in search of money. The appellant repeatedly threatened to blow her head off and forced her to give him what money she had in the apartment. He then told her, “you know I can’t leave you to identify me.” When she began begging appellant not to kill her, he gagged her and tied her hands behind her back.

The prosecutrix testified that, as the appellant was pulling her into the bathroom to kill her, a tenant began “banging” on the door of her apartment. The tenant knew something was wrong and was calling her name. The appellant then took the prose-cutrix into a bedroom, shoved her face down on the floor and left. He told her he was going to get his van and return for her typewriter and television set, and if she made a sound, he would blow her head off or that of anyone else who came into the apartment. When he left, she managed to free one hand, undo the gag, and call to the tenant outside to call the police. The police arrived shortly thereafter and took the prosecutrix to the hospital.

A positive identification of the appellant was made by the prosecutrix at trial and at a police lineup. Expert testimony established that the appellant’s fingerprints were on discarded application forms found in the apartment.

I

The appellant contends that the trial court erred by refusing to give the following written requested jury charges:

“1. The presumption of innocence is legal proof of innocence. The defendant comes into court clothed with the presumption of innocence, and that presumption of innocence remains with him throughout the case until overcome by the prosecution. If the jury decides that a material element of any crime with which this defendant is charged has not been proven beyond a reasonable doubt, the jury must acquit defendant.”
“3. If the jury can reconcile the evidence before it with any reasonable hypothesis consistent with the innocence of the defendant, it is your duty to do so and to find the defendant not guilty.”
“4. If the evidence against the defendant is equally consistent with innocence and guilt, the jury must adopt the construction in favor of innocence.”
“10. You are instructed that if the facts and circumstances established by the prosecution are susceptible to two inferences, one which points to innocence and the other to guilt, you are obligated to adopt that inference which points to innocence, even if the inference of guilt is equally impressive.”

The proposition of law in refused Charge No. 1 was adequately covered in the trial court’s oral charge. Title 7, § 273, Code of Ala. 1940 (§ 12-16-13, Code of Ala. 1975). The pertinent portion of the trial court’s oral charge is as follows:

“Now, he comes into this court and he did so yesterday as everyone who is charged with a criminal offense does, with a presumption that he was innocent. He was presumed to be not guilty of this offense. That is a presumption of law. It’s the law of the case and it’s part of the evidence in this case. It’s part of the evidence, that presumption of innocence. That presumption of innocence remains with him throughout the course of the trial unless or until the State of Alabama, who is the prosecuting authority in this case, convinces each one of you beyond a reasonable doubt that he is, in fact, guilty. If, or when that takes place, that is, each of you is convinced beyond a reasonable doubt that he is, in fact, guilty, then that presumption of innocence is taken away from him and he stands before this jury and before this Court guilty as charged in this indictment.”

The appellant contends that the primary evidence in the case was circumstantial, therefore, requiring the trial judge to give his requested Charges No. 3, 4, and 10. His contention is that the admission into evidence of the appellant’s fingerprints on the applications and admission of the composite sketch of the appellant’s likeness were circumstantial evidence against him.

While some circumstantial evidence was admitted in the trial, it was not the primary evidence upon which the appellant’s conviction was based. The appellant’s fingerprints upon the applications found in the prosecutrix’s apartment is only cumulative evidence of her direct testimony that he was in the apartment and is likewise cumulative of the appellant’s own testimony that he had been present in the apartment on the date in question. The composite sketch of the appellant’s likeness, drawn by an artist from a description given by the prosecutrix, was cumulative of her testimony making a positive identification of the appellant as her assailant. Had the evidence against appellant consisted only of the composite sketch and his fingerprints on the application forms, then instructions to the jury concerning circumstantial evidence would have been in order. However, the primary evidence in the instant case was the direct testimony of the prosecutrix identifying the appellant as the person- who raped and robbed her.

In cases where the evidence is both direct and in part circumstantial, there is no error in refusing requested instructions which place emphasis on circumstantial evidence. Thompson v. State, Ala.Cr.App., 354 So.2d 1134 (1977), cert. denied, Ala., 354 So.2d 1138; Avery v. State, Ala.Cr.App., 336 So.2d 195 (1976), cert. denied, Ala., 336 So.2d 199. Therefore, the appellant’s requested Charges No. 3, 4, and 10 were properly refused since they would overemphasize the circumstantial evidence in the case.

None of the refused written charges in issue were hypothesized on a “belief from the evidence.” This in itself was fatal to the refused charges. Hudson v. State, Ala.Cr.App., 335 So.2d 208. cert. denied, Ala., 335 So.2d 211 (1976). Smith v. State, 57 Ala.App. 245, 327 So.2d 740 (1976); Johnson v. State, 55 Ala.App. 581, 317 So.2d 548 (1975); Jones v. State, 54 Ala.App. 167, 306 So.2d 33 (1974), affirmed, 293 Ala. 762, 306 So.2d 45 (1975).

II

The appellant’s contention that the trial court erred in not charging the jury on mistaken identity is not properly before this court. There were no written requested charges on this issue, nor was an exception taken to the trial court’s oral charge. Where the trial court fails to charge on a particular phase of applicable law, the proper procedure for covering that omission is to request a written charge covering that point of law. Bowens v. State, 54 Ala.App. 491, 309 So.2d 844 (1974), cert. denied, 293 Ala. 746, 309 So.2d 850; Ford v. State, 51 Ala.App. 162, 283 So.2d 614 (1973). In the case of In re State v. Burns, 295 Ala. 423, 327 So.2d 927 (1976), Justice Blood-worth, in a special concurrence, stated:

. The Supreme Court of Alabama has never reversed a trial judge, to my knowledge, for failing to instruct. When a trial judge’s instructions are not as full as defendant’s counsel desires, the remedy is to request instructions explaining defendant’s theory of the case. Smith v. State, 262 Ala. 584, 80 So.2d 307 (1955).”

III

The appellant contends that the evidence was insufficient to support a conviction. There was no motion to exclude the evidence, no request for the affirmative charge, and no motion for a new trial. Under a long line of eases, the sufficiency of the evidence is not subject to review unless challenged by one of those procedures in the trial court. Crow v. State, Ala.Cr.App., 365 So.2d 1254, cert. denied, Ala., 365 So.2d 1256 (1979); Gantt v. State, Ala.Cr.App., 356 So.2d 707, cert. denied, Ala., 356 So.2d 712 (1978); Youngblood v. City of Birmingham, Ala.Cr.App., 338 So.2d 526 (1976).

AFFIRMED.

All the Judges concur.


author: EMBRY, Justice.

text:
    Ex parte Louie Ellis LEWIS.
    78-614.
    Supreme Court of Alabama.
    July 20, 1979.
   EMBRY, Justice.

WRIT DENIED.

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