author: FAULKNER, Justice.

text:
    In the Matter of William J. SAMFORD, II, Judge of the District Court of Lee County, Alabama.
    SC 2651.
    Supreme Court of Alabama.
    Dec. 9, 1977.
    Rehearing Denied Jan. 6, 1978.

      Jacob A. Walker of Walker, Hill, Adams, Umbach & Herndon, Opelika, for appellant.
    James S. Ward and Rosa G. Hamlett, Asst. Attys. Gen., for the State.
   FAULKNER, Justice.

William J. Samford, II, District Judge of Lee County, Alabama, was charged with failure to avoid impropriety and the appearance of impropriety in all his activities in violation of Canon 2 of the Canons of Judicial Ethics. Specifically, he was charged with failure to remit fiduciary funds. He was found guilty and removed from office by the Court of the Judiciary. We affirm.

To fully understand the charge, it is necessary to look at all the events leading up to the complaint, including those events which occurred prior to February 1, 1976, the effective date of the Canons of Judicial Ethics. While practicing as a private attorney, Judge Samford was employed by Sergeant Flakes to handle a wrongful death action for the death of his sister, Jean Flakes Williams. The suit was settled for $7,500, and in November 1974, the draft was sent to Sgt. Flakes, who was stationed in Spain, for his endorsement as administrator of the Williams estate. Upon receipt of the returned draft, Judge Samford placed the funds in a trust account, withdrawing the agreed-upon $1,500 attorney’s fee in December.

Judge Samford was elected to the Lee County District Judgeship and took office in January, 1975. After his election he agreed to complete the administration of the estate without further compensation. The Judge later withdrew money from the trust account for purposes unrelated to the Williams estate, including a withdrawal of $5,500, which was used to pay the principal and interest on his personal loan, and $500 to pay rent.

Sgt. Flakes contacted Samford several times while he was still practicing law, concerning the administration of the estate but received no satisfactory response. In November, 1975, Flakes first notified the Alabama Bar Association of his complaints concerning Judge Samford’s handling of the matter. The Bar Association notified the Judge of the complaint in April, 1976. After five letters from the Bar Association and the Grievance Committee, the Judge finally responded in January, 1977, giving an explanation for his actions in the Williams case and enclosing a check for $6,000. The check was returned with instructions to settle the matter and disburse the funds within 30 days. It appears that ended the matter as far as the Bar Association was concerned. However, Judge Samford did not carry out the instructions of the Bar. On May 2, the Judicial Inquiry Commission, after hearing from Sgt. Flakes, filed a complaint against Judge Samford with the Court of the Judiciary. During that same month, Judge Samford turned the estate matter over to another attorney.

During the proceedings of the Court of the Judiciary, Judge Samford fully admitted to his delay in paying out the funds. His only explanation for such an extensive delay was that he was very busy with his duties as judge and was heavily involved in setting up the state-wide district court system. No explanation was given as to why he used $6,000 of the trust account for his personal gain.

The Court of the Judiciary held:

“This matter having been submitted to the Court on the record, including stipulations of the parties, and oral testimony of the respondent judge made in open Court, the Court now proceeds to make its findings and order.
“It is considered and ordered that William J. Samford, II, Judge of the District Court of Lee County, is guilty as charged; that from November, 1974, to January 7, 1977, he did not remit fiduciary funds; that on May 16, 1975, while he was a judge, he removed fiduciary funds from a trust account to his personal account and used same for his own benefit; and that he is removed from office.”

From this order, Judge Samford appeals, claiming that although he was charged only with failure to pay over fiduciary funds, he was found guilty of that offense as well as of taking the fiduciary funds for his own personal benefit, an act which occurred pri- or to the effective date of the Canons of Judicial Ethics. Accordingly, he urges this court to review the facts of the case and to impose a lesser sanction.

From 1971 to 1973 the judicial disciplinary machinery in this state was governed primarily by Amendment 317 to the Alabama Constitution, which created a Judicial Commission with the authority “ . to investigate, conduct hearings on the qualifications of judges and make recommendations to the Supreme Court in regard to the retirement, censure, suspension or removal of such judges . . . ” Under this “recommendation” system,

“If, after hearing, or after considering the record and report of the masters [appointed by the Supreme Court upon the Commission’s request], the Commission finds good cause therefor, it shall recommend to the Supreme Court the censure, suspension, removal or retirement, as the case may be, of the judge.
“The Supreme Court shall review the record of the proceedings on the law and facts and in its discretion may permit the introduction of additional evidence and shall order censure, suspension, removal or retirement, as it finds just and proper, or wholly reject the recommendation.”

Under this “recommendation” system this court has applied the test of whether the evidence supported the finding of facts and conclusions of law of the charge. In re Sollie, 292 Ala. 606, 298 So.2d 601 (1974). Other jurisdictions with a similar system have also considered the scope of review. See In re Daniels, 340 So.2d 301 (La.Sup.Ct. 1976); In re Kelly, 238 So.2d 565, 571 (Fla. Sup.Ct.1970), cert. den. 401 U.S. 962, 91 S.Ct. 970, 28 L.Ed.2d 246, rehearing den. 403 U.S. 940, 91 S.Ct. 2245, 29 L.Ed.2d 720 (1971). In analyzing their “recommendation” system, which also calls for review on the facts and the law, the Florida Supreme Court stated:

“While the power to render the ultimate judgment in these cases is vested in this Court, the findings and recommendations of the Florida Judicial Qualifications Commission are entitled to receive due consideration and are of persuasive force. ... In view of these constitutional provisions prescribing the composition of the Commission, its findings should be given great weight. However, the ultimate responsibility of making a determination rests with this Court, for Sec. 17A(2), Fla.Const., requires that the Supreme Court, after reviewing the record, ‘shall order removal, discipline or retirement, as it finds just and proper, or wholly reject the Commission’s recommendation.’ ”

However, in 1973, the citizens of this state adopted Amendment 328 to the Constitution (the “Judicial Article”). Our present judicial disciplinary machinery is now found in the Alabama Constitution, Art. VI, §§ 156 and 157 (1973 Supp.), creating a two-tiered system. In brief, this present system provides for a Judicial Inquiry Commission, an investigatory body analogous to a grand jury, and a Court of the Judiciary. The Court of the Judiciary is given

“ . . . authority, after notice and public hearing (1) to remove from office, suspend without pay, or censure a judge, or apply such other sanction as may be prescribed by law, for violation of a canon of judicial ethics, misconduct in office, failure to perform his duties, or (2) to suspend with or without pay, or to retire a judge who is physically or mentally unable to perform his duties.
“(b) A judge aggrieved by a decision of the court of the judiciary may appeal to the supreme court. The supreme court shall review the record of the proceedings on the law and the facts.”

Soon after the adoption of the Judicial Article, this court had occasion to consider an appeal from censure for misconduct in office under the new system. Although the court did not explicitly discuss the appropriate scope of review, they looked to the sufficiency of the evidence and found “ . . . no clear and convincing evidence of unlawful behavior of Judge Em-met shown in this case which constitutes misconduct in office . In re Emmet, 293 Ala. 143, 148, 300 So.2d 435 (1974).

A comparison of the old and new systems indicates several significant changes relevant to the scope of review. Under the new Judicial Article the Court of the Judiciary does not make recommendations — it makes orders from which the judge may appeal if he or she so desires. The Supreme Court has no power to hear additional evidence or to “order” a sanction “as it finds just and proper, or wholly reject the recommendation.” Rather, under this new system, the Supreme Court only reviews the record “on the law and the facts,” It is readily apparent that the intent of the legislature was that the decisions of the Court of the Judiciary be afforded much more weight than under the “recommendation” system.

Therefore, we hold that the orders of the Court of the Judiciary are entitled to a presumption of correctness if the charge is supported by “clear and convincing evidence.” Rule 10, Rules of the Court of the Judiciary. Our task is to determine whether the record shows clear and convincing evidence to support the order of the Court of the Judiciary.

The finding of the Court of the Judiciary that Judge Samford is “guilty as charged” is fully supported by clear and convincing evidence. In fact, no other conclusion can be drawn from the evidence since the Judge freely admitted that he was dilatory in distributing the fiduciary funds, both before and after he became a District Judge, and offering as an explanation only his preoccupation with court business.

The language in the order of the Court of the Judiciary referring to acts which occurred prior to February 1, 1975, is mere surplusage and does not indicate that the Court of the Judiciary found the Judge guilty of any violations other than those with which he was charged. See 5B C.J.S. Appeal and Error § 1787. Clear and convincing evidence was presented which supports Judge Samford’s removal from office. The Judge repeatedly ignored correspondence concerning this matter. He took no action to settle the complaint until January, 1977, when he sent a $6,000 check to the Bar Association. When the check was returned with instructions to settle the matter within 30 days, he again delayed in distributing the money to the appropriate person. His unethical conduct began as a practicing attorney and continued after he became a District Judge.

‘ A Judge must avoid all impropriety and appearance of impropriety. Public confidence in the judiciary is eroded by irresponsible or improper conduct by a Judge. See Commentary, Canon 2, Canons of Judicial Ethics. The fact that Judge Samford has a net worth of approximately $700,000, and could technically replace the trust fund, does not justify the acts of impropriety that he committed.

The order of the Court of the Judiciary is affirmed.

AFFIRMED.

BLOODWORTH, MADDOX, JONES, SHORES, EMBRY and BEATTY, JJ., concur.

TORBERT, C. J., and ALMON, J., recuse themselves.

      . Canon 2. A judge should avoid impropriety and the appearance of impropriety in all his activities.
      A. A judge should respect and comply with the law and should conduct himself at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.
      B. A judge should at all times maintain the decorum and temperance befitting his office and should avoid conduct prejudicial to the administration of justice which brings the judicial office into disrepute.
      C. A judge should not allow his family, social, or other relationships to influence his judicial conduct or judgment. He should not lend the prestige of his office to advance the private interests of others; nor should he convey or permit others to convey the impression that they are in a special position to influence him. He should not testify voluntarily as a character witness.

      . Although Sgt. Flakes was appointed administrator of the Williams estate in November, 1974, the records were apparently misfiled so that upon request, Sgt. Flakes was told that there was no record of his appointment as administrator. Judge Samford had also forgotten that Flakes had been appointed.

      . Charles D. Cole, “Judicial Inquiry Commission: Successor to the Judicial Commission of Alabama,” 35 Ala. Law. 289 (1974).


source: Caselaw Access Project

author: PER CURIAM. JONES, Justice

license: Public Domain

text:
    Anne C. HINRICHS v. TRANQUILAIRE HOSPITAL, Robert E. Cole, Mobile Psychiatric Services, a corporation, et al., jointly and severally.
    SC 2548.
    Supreme Court of Alabama.
    Dec. 16, 1977.
    Douglas Inge Johnstone, Mobile, for appellant.
    Thomas M. Galloway, of Collins, Galloway & Smith, Mobile, for appellees.
   PER CURIAM.

This appeal by an employee from grant of summary judgment in favor of the employer raises the question as to whether an employee can maintain an action in tort for her dismissal from her employment contract, which was terminable “at will,” based on her claim that the dismissal was “wrongful.” We hold that she cannot and affirm.

Appellant, Anne C. Hinrichs, entered an employment relationship with appellee, Mobile Psychiatric Services. The employment contract was both oral and terminable at the will of either party.

Hinrichs alleges that, during the course of this employment, she was ordered to falsify certain medical records. After performing this task for some time, she informed Robert E. Cole, her supervisor and a named defendant, that she intended to discontinue this practice. Thereafter, Cole allegedly transferred Hinrichs to a lesser employment position and eventually terminated her employment on April 8, 1976.

Hinrichs seeks damages in tort based upon the wrongful termination of her employment contract. Mobile Psychiatric contends that there is no tort of this type, and that the creation of one would open a floodgate of litigation. The possible inundation of suits is, of course, no reason to prevent the redress of a legal wrong. The sole issue, then, is whether “public policy” demands recognition of the cause of action in tort, as alleged.

It is well settled that an employment contract at will may be terminated by either party with or without cause or justification. 56 C.J.S. Master & Servant § 31; and 62 A.L.R.3d 271. Hinrichs, however, contends that the absoluteness of this rule has been increasingly circumscribed when such discharge contravenes a statute or is contrary to “public policy,” citing Petermann v. International Brotherhood of Teamsters, 174 Cal.App.2d 184, 344 P.2d 25 (1959), and Nees v. Hocks, 272 Or. 210, 536 P.2d 512 (1975).

We reject this contention and affirm the grant of summary judgment for three reasons:

(1) Such a new rule as Hinrichs espouses would abrogate the inherent right of contract between employer and employee; (2) such a rule would overrule existing Alabama law; (3) the suggested foundation for such rule, “contrary to public policy,” is too nebulous a standard to justify its adoption. We amplify on these reasons in the ensuing three paragraphs.

(1) The general rule is that an employment contract at will may be terminated by either party with or without cause or justification. 56 C.J.S. Master and Servant § 31; and 62 A.L.R.3d 271. This means a good reason, a wrong reason, or no reason.

(2) Alabama has followed the general rule which is that in a contract of employment “at will,” the contract means what it says, that it is at the will of either party. The employee can quit at will; the employer can terminate at will. Alabama Mills, Inc. v. Smith, 237 Ala. 296, 186 So. 699 (1939). This is true whether the discharge by the employer was malicious or done for other improper reasons. Comerford v. International Harvester Co., 235 Ala. 376, 178 So. 894 (1938). This has been the Alabama law since the early years of this century. See Tennessee Coal, Iron and B. Co. v. Kelly, 163 Ala. 348, 50 So. 1008 (1909), where this Court held:

“ . . .If one does an act which is legal in itself and violates no right of another, the fact that this rightful act is done from bad motives or with bad intent toward the person so injured thereby does not give the latter a right of action against the former.”

We pretermit any discussion of this issue in the constitutional context since it is not raised.

(3) Appellant Hinrichs would have this Court justify the creation of this rule on “public policy” grounds and bases her contention on an Oregon and a California appellate court decision. However, even the California appellate court in Petermann v. International Brotherhood of Teamsters, 174 Cal.App.2d 184, 344 P.2d 25 (1959), confessed that, “ ‘The term “public policy” is inherently not subject to precise definition. . “Public policy is a vague expression, and few cases can arise in which its application may not be disputed. . We hold that this is too vague a concept to justify the creation of such a new tort. Such creations are best left to the legislature.

In sum, because we think employment contracts “at will” mean what they say, and because adoption of such a rule would overrule nearly 70 years of existing Alabama case law, and because the suggested basis of “public policy” is too nebulous an underpinning to justify adoption of such a rule, we affirm.

AFFIRMED.

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

JONES, SHORES, and EMBRY, JJ., dissent.

JONES, Justice

(dissenting):

Respectfully, I dissent.

In permitting a cause of action for termination of a contract of employment at will, the Michigan Court of Appeals, in Sventko v. Kroger Co., 69 Mich.App. 644, 646, 245 N.W.2d 151, 153 (1976), said:

“[W]hile it is generally true that either party may terminate an employment at will for any reason or for no reason, that rule is not absolute. It is too well-settled to require citation that an employer at will may not suddenly terminate the employment of persons because of their sex, race, or religion. Likewise, the better view is that an employer at will is not free to discharge an employee when the reason for the discharge is an intention on the part of the employer to contravene the public policy of this state.”

See also Fellows v. Medford Corp., 431 F.Supp. 199 (D.Or.1977), and Petermann v. International Brotherhood of Teamsters, 174 Cal.App.2d 184, 344 P.2d 25 (1959). For an erudite, in-depth discussion of the “termination of employment at will” problem, see Blades, Employment at Will v. Individual Freedom, 67 Col.L.Rev. 1404 (1967).

Under the foregoing definition, I would hold that the exception to the general rule — created to comply with public policy — is applicable. The need for accuracy and integrity in hospital records is manifest, for it is from these records that decisions concerning the life and health of patients are made, statements of charges for medical services are rendered, and grants of public funds are authorized. To deny the remedy here sought would permit grave violations of public policy without substantial legal sanction.

Redress for wrongful discharge under these circumstances, and thus the assurance that such wrong is not without a remedy, would place the employee in a far better position to withstand oppression at the hands of his employer. Moreover, by providing a remedy to such discharged employee, there is less likelihood that the employer’s improper or overreaching demands — vi-olative of public policy — would ever manifest itself.

For these reasons, I would hold that the termination of an employment contract at will, by the employer, is wrongful and tor-tious in nature when, as here, such termination, both in its motivation and practical effect, is contrary to public policy. Absent the breach of public policy, however, this rule does not interfere with the employer’s normal exercise of his right to discharge, with or without cause, which is implicit in an employment contract at will. As Professor Blades concludes:

“It should be emphasized that so to limit the employer’s right of discharge would not give blanket protection to the employee’s interest in job security. There is a distinction between the right to employment and the right of the employee not to be obliged to his employer in ways bearing no legitimate connection to the employment.” 67 Col.L.Rev., at 1414.

The majority opinion rejects this public policy basis because it “is too nebulous an underpinning to justify adoption of such a rule.” This “too nebulous” thesis is groundless, in my opinion, for the reason that the law is fully capable of setting a sufficiently definitive standard in its application of the public policy concept. It is not every claim of such violation that should be actionable. Indeed, I would limit such claims to those acts cognizable as a crime or to conduct so morally reprehensible as to be commonly recognized as offensive to the public good.

Moreover, the law is not unaccustomed to dealing with the “public policy” concept in both its definition and application. For example, contracts otherwise legally binding will be totally voided where its terms contravene public policy. Tuscaloosa Ice Manufacturing Company v. Williams, 127 Ala. 110, 28 So. 669 (1900).

“The true test ... is whether the public interest is injuriously affected in such substantial manner that private rights and interests should yield to those of the public.” Maddox v. Fuller, 233 Ala. 662, 667, 173 So. 12, 16 (1937).

See also Colston v. Gulf States Paper Corp., 291 Ala. 423, 282 So. 251 (1973).

SHORES and EMBRY, JJ., concur.


author: WRIGHT, Presiding Judge.

text:
    SUMTER COUNTY BOARD OF EDUCATION v. ALABAMA STATE TENURE COMMISSION.
    Civ. 1119.
    Court of Civil Appeals of Alabama.
    July 13, 1977.
    Rehearing Denied Aug. 17, 1977.

      Perry Hubbard, Tuscaloosa, for appellant.
    W. Troy Massey, Special Asst. Atty. Gen., Montgomery, for appellee.
   WRIGHT, Presiding Judge.

This is a teacher tenure case.

The contract of a teacher with continuing service status (tenure) under Title 52, Sec. 352, Code of Alabama (1940) (Recomp. 1958), was cancelled by his employer, Sumter County Board of Education. The teacher (Levon Puckett) appealed the decision of the Board to the Alabama State Tenure Commission as permitted by Title 52, Sec. 360. The Commission found the evidence presented to the Board insufficient to support the reasons given for the cancellation and thus arbitrarily unjust. The Board was ordered to reinstate the teacher to his former position.

The Board sought mandamus against the Commission in the circuit court as provided by Title 52, Sec. 361. By order of January 24, 1977, the court denied mandamus. In its judgment, the circuit court stated that in accordance with the recent decision of the Alabama Supreme Court in the case of Alabama State Tenure Comm. v. Mt. Brook Bd. of Educ., 343 So.2d 522 (Ala.1977), the limit of its statutory review in the case was to determine if there was sufficient evidence to support the decision of the Commission that the action of the Board was arbitrarily unjust. Finding that there was sufficient evidence to support the decision of the Commission mandamus was denied. The Board appealed.

The appeal before this court is from the order of the circuit court denying mandamus. The scope of our review is the same as that of the circuit court in its consideration of the petition for writ of mandamus.

Until the recent decision by the Supreme Court in the case of Alabama State Tenure Commission v. Mt. Brook Bd. of Educ., supra, we considered that it was the statutory duty of the circuit court to look at the decision of the Commission in light of the record brought to the Commission from the hearing before the board and determine if the Commission had exceeded its statutory scope of review. We had considered that a decision by the Commission reversing the action of the Board as arbitrarily unjust when that action was supported by reasonable and substantial evidence in the record, exceeded the statutory authority of the Commission and such decision could be set aside by writ of mandamus.

We had considered that the contention of counsel for the Tenure Commission that the scope of review of the Commission should be broadened had been answered by the Supreme Court in the case of Marshall County Bd. of Educ. v. State Tenure Commission, 291 Ala. 281, 280 So.2d 130 (1973). In that case, as in the case presently before us, it was contended by counsel that the Commission should be permitted a broader scope of review than is ordinarily permitted to courts reviewing decisions of administrative agencies. That contention was approved by the specially concurring justice who stated that the Tenure Commission had

“. . . [T]he right to review the entire record of the proceedings before the Board without indulging in any presumptions of the correctness of the findings and conclusions made by the board and to arrive at contrary conclusions on the same facts, if the commission is convinced from the record that the Board was ‘arbitrarily unjust’ . . . . The legislature intended that the Tenure Commission could re-examine the facts which were before the board and arrive at a different conclusion.” 291 Ala. at 291, 280 So.2d at 138.

This contention of counsel and the justice was rejected by the majority when it said:

“The Legislature set the scope of review . . . . No appellate or trial court in this state has the right to broaden the scope of review of the Commission. Section 360 states, ‘On said appeal the Commission will consider the case on the record of the proceedings before the said board and the evidence as recorded at such hearing.’
“That is the universal rule relating to appeals in this state where the case is not de novo but reviewed on the record made in the court below.” 291 Ala. at 285, 280 So.2d at 133.

Under the heading of “Validity of Board’s Findings”, the court quoted from its decision in the case of Woods v. Bd. of Educ. of Walker County, 259 Ala. 559, 67 So.2d 840 (1953) the following:

“Where a board, such as the board of education of a county, is created for the purpose of carrying a law into execution, all legal intendments are indulged in favor of the orders of such board and those orders will be upheld unless their invalidity is clearly shown by those who challenge them, the legal presumption being that such orders are reasonable and valid and where made upon proper evidence.” 259 Ala. at 561, 67 So.2d at 841.

The court then said:

“The appeal to the commission is not for a de novo trial; and the only question for decision by the Tenure Commission was, since the action was in compliance with the chapter on Teacher’s Tenure, whether the action of the Board was ‘arbitrarily unjust.’ § 360.” 291 Ala. at 288, 280 So.2d at 135.

We have considered in light of these statements that it was settled that it was beyond the power of the Tenure Commission to re-examine the evidence heard by the Board without any presumption of its correctness, to weigh such evidence, judge its credibility, arrive at an entirely different factual conclusion and not be subject to mandamus if its contrary conclusion is supported by sufficient evidence (whatever constitutes a sufficiency in such an instance).

All of our considerations of the status of the law were changed by the decision of the court in Mt. Brook. Though the majority opinion did not refer to nor overrule what we have herein shown to have been said by the court in Marshall County, we are constrained to believe that the effect of Mt. Brook was to overrule such portions of that decision and to adopt the view expressed in the special concurring opinion.

The learned trial judge in this case was clearly of the same belief.

The court in Mt. Brook pointed out that if all procedural requirements of the statute are followed the only further inquiry which may be made by the circuit court is whether there is sufficient evidence before the Commission to support its conclusion that the decision of the Board should be reversed. If there was sufficient evidence to support such conclusion, then the decision of the Commission must be affirmed as not unjust.

As we understand the decision, the circuit court may not view the evidence though it may be vast, credible, preponderant and convincing, clearly supporting the conclusion of the Board. The court may only look to the record to determine if there is “sufficient” evidence to support a contrary conclusion reached by the Commission. Such “sufficiency” is apparently weighed neither against the usual legal presumption of correctness accompanying the finding of the body who heard the testimony and saw the witnesses nor the preponderance of the evidence.

We can reach no conclusion from Mt. Brook other than that it authorizes the Commission to retry the case on the record and reach its own conclusion of fact. If it reaches an opposite conclusion of fact from the Board, it may reverse. Upon petition for mandamus the circuit court must deny a writ if the conclusion of the Commission has “sufficient” support in the record. Upon appeal to this court we can only review the acts of the circuit court. Thus the commission, not the Board, is the final arbiter of the facts, though never seeing nor hearing the witnesses. We know of no other similar method of review of the finding of a trial body in this state.

If we have correctly stated the holding m Mt. Brook, this court must respectfully disagree with it. Though legally bound to follow it in this and all cases, we feel obligated to point out the clear (we think) inconsistency with the decision in Marshall County. As we interpret Mt. Brook, we believe the action of the trial court in denying mandamus to be correct. Therefore, we will affirm the judgment of the trial court.

Though the Supreme Court in Mt. Brook did, contrary to its rule for reviewing by certiorari the finding of facts of this court, go to the record and determine therefrom that there was “sufficient” evidence to support the finding and conclusion of the Commission, we hereinafter enter a finding of fact from the record of the proceedings before the Board of Education which record was reviewed by the Commission. We make such finding for the aid of the Supreme Court in the event certiorari is requested and granted from the judgment of this court.

Levon Puckett was a teacher with continuing service status (tenure) in Sumter County. Puckett was charged by the Sumter County Board of Education with administering excessive and harsh punishment to students under his supervision. He was warned by administrators of the Board to cease such" actions, but did not permanently heed such instructions.

On June 8, 1976, a proper hearing was held by the Board. The evidence tended to show that Mr. Puckett had been employed as a teacher-coach, physical education instructor and school bus driver for nine years in a junior high school. It was without dispute that Mr. Puckett used corporal punishment in the form of paddling with a paddle or belt as a means of punishment for misbehavior or failure to carry out assignments. Mr. Puckett admitted that it had been his practice to use such punishmehC' with reasonable restraint.

The Sumter County Board of Education had a written policy permitting corporal punishment in the schools but directed to be administered only by the principal. This policy had been published in a booklet for several years and distributed to the teachers. Mr. Puckett denied receiving a copy or being aware of it. During the school year of 1975-76 and prior thereto, there had been complaints made to the Board and the administrators by parents of children who claimed to have been paddled by Mr. Puckett. He admitted some of these claims but denied their severity.

In October of 1975, the superintendent of schools discussed with Mr. Puckett complaints against him. He said he discussed the published policy as to corporal punishment with Mr. Puckett and suggested he seek the help and advice of the principal in future disciplinary action. On April 22, 1976, the parents of a student brought the child before the Board and complained that he had been paddled by Mr. Puckett. They exhibited the child’s bruised buttocks to the Board. Mr. Puckett was immediately summoned and questioned concerning the child. He admitted that he had given the child nine licks with a paddle because he had failed to turn in a homework assignment. He expressed his belief that such punishment was necessary to maintain discipline. In response to questions of the superintendent he admitted that the act of punishing the child was what he had previously been asked not to do.

The assistant superintendent stated that he discussed with Mr. Puckett rumors of his paddling his students. He informed Mr. Puckett that he was to turn children in his class over to the principal if they were so unruly that he couldn’t “handle” them.

The principal testified that he had talked with Mr. Puckett concerning complaints which he received about excessive corporal punishment. He stated that he informed Mr. Puckett that he should not administer such punishment but should refer such matters to him. The principal stated that in 1975 he received 20 to 25 complaints from parents concerning the severity' of punishment inflicted by Mr. Puckett on their children. He further stated that it was his announced policy in the school that no teacher inflict corporal punishment but send the students to him. He had directed Mr. Puckett to stop giving such punishment permanently and not to just lay off for two weeks. He did not know of any other teacher in his school giving corporal punishment.

Testimony by witnesses called by Mr. Puckett began with fellow teachers who stated they were aware of the policy that students be sent to the principal if corporal punishment was to be given and that they sent pupils to the principal.

A student testified that he had retrieved a paddle from the roof of the school building for Mr. Puckett in the fall of 1975. Another student testified that he was pad-died by Mr. Puckett but not severely.

Mr. Puckett admitted that he paddled students and felt it necessary to maintain discipline. He stated that when he stopped paddling for two weeks at the request of the principal, discipline deteriorated badly. He denied that the principal or superintendent had ever told him to permanently stop paddling, but only requested that he lay off for a while, such as two weeks, and not to be so severe. Because of such requests, he locked up his paddle for two weeks and later threw it up on the building for two or three weeks. When he asked the superintendent if he had received a particular parental complaint about his paddling a girl, the superintendent told him he had not and was not against paddling if they needed it.

Mr. Puckett identified his paddle and acknowledged that it was the one he used. It is described as 2% inches wide, lk inch thick and about 12 inches long.

Succinctly summarized, the undisputed testimony is that Mr. Puckett regularly applied corporal punishment to his students. Many of the parents complained to the principal and the Board of Education. The Board had a policy that corporal punishment be administered only by a principal. Such policy was incorporated in a booklet and given to each teacher. This policy was discussed at regular faculty meetings in the school where Mr. Puckett was employed. His wife was also a teacher in the same system. The principal, assistant superintendent and superintendent had discussed with Mr. Puckett complaints by parents against him.

The only disputed testimony is whether these officials told Mr. Puckett of the policy of the Board and that he was not to paddle anymore. Mr. Puckett said he was not given a copy of the booklet as other teachers were; that he did not attend faculty meetings because he drove a school bus; that he was never told to permanently cease paddling but only to lay off for two or three weeks.

With this statement of the evidence, we affirm the court below.

AFFIRMED.

BRADLEY and HOLMES, JJ., eohcur.


author: PER CURIAM. BLOODWORTH, Justice.

text:
    In re SUMTER COUNTY BOARD OF EDUCATION v. ALABAMA STATE TENURE COMMISSION. Ex parte Sumter County Board of Education.
    SC 2801.
    Supreme Court of Alabama.
    Dec. 9, 1977.

      Perry Hubbard, Tuscaloosa, for petitioner.
    W. Troy Massey, Sp. Asst. Atty. Gen., Montgomery, for respondent.
    Truman Hobbs, Montgomery, on behalf of Alabama Education Association, amicus curiae.
   PER CURIAM.

In its petition for writ of certiorari, the petitioner has asked us to reverse the Court of Civil Appeals, 352 So.2d 1133, which held controlling State Tenure Commission v. Mountain Brook Board of Education, 343 So.2d 522 (Ala.1977), and to overrule that case. This Court declines to either overrule or modify Mountain Brook, but due to earnest insistence of counsel, the Court has undertaken in this opinion to explain the basis of that opinion with particular emphasis as to the scope of review of Tenure Commission decisions by the Court of Civil Appeals and this Court.

As we pointed out in Mountain Brook, the Alabama State Tenure Commission was created by the legislature as an administrative agency with the function, inter alia, of reviewing actions of boards of education cancelling tenured teachers’ contracts. Tit. 52, § 360, Code of Alabama 1940 (§ 16-24-10 Code of Alabama 1975). Under this Section, the action of the State Tenure Commission is final and conclusive, if taken in compliance with the provisions of Chapter 13 of Tit. 52, § 351, et seq., (Chapter 24 of the Code of 1975) and unless unjust.

We said in Mountain Brook that review is by mandamus in the circuit court, and that its judicial review is limited to two determinations, first, whether the Tenure Commission’s action was made in compliance with the provisions of the chapter, and second, whether this action was unjust. There was no question in Mountain Brook but that the procedural requirements of the chapter were met. As to the second inquiry, we stated the issue to be “whether there was sufficient evidence before the Commission to support its conclusion that the decision of the Board of Education should be reversed. . If there was sufficient evidence to support such a conclusion, then the decision of the Commission must be affirmed as not unjust.” There, we concluded that the evidence was sufficient to support the Commission’s findings and conclusion.

We shall now proceed to explain the meaning of the term “sufficient evidence” to support the conclusions of the Commission, i. e., the scope of review by the Court of Civil Appeals on review of the Tenure Commission’s ruling.

The petitioner suggests that the rule of appellate review as to whether the decision of the Tenure Commission is “unjust” or not is whether there is any sufficient evidence in the record to support the judgment of the local school board. In other words, petitioner contends that the local school board can be reversed by the State Tenure Commission only if there is no sufficient evidence to support the Board’s judgment.

On the other hand, respondent’s position is that the true test as to whether the decision of the Tenure Commission is “unjust” or not is whether that decision is unsupported by any competent evidence in the record. Thus, the respondent would say that the decision of the Tenure Commission can be reversed by the appellate court only if there is no competent evidence in the record to support the Tenure Commission’s decision.

We accede to neither view. In Mountain Brook, we stated the rule to be if “there was sufficient evidence to support” the conclusion of the Tenure Commission then its decision must be affirmed as “not unjust.”' We did not think it necessary to indicate our views as to what would constitute sufficient evidence, because we found sufficient evidence to support the Commission’s findings and conclusions. We did commend, in Mountain Brook, the opinion which Mr. Justice Kohn authored for this Court in State Tenure Commission v. Madison County Board of Education, 282 Ala. 658, 213 So.2d 823 (1968) as “an erudite and full discussion of the role of the State Tenure Commission.”

In Madison County Mr. Justice Kohn wrote, “Was the conclusion of the State Tenure Commission unjust? The preponderance of the evidence and the overwhelming weight of the evidence did not warrant such a conclusion.” Thus, it clearly appears that in that decision this Court considered the appellate rule of review to be the “preponderance of the evidence” and the “overwhelming weight of the evidence.”

Therefore, we hold that the State Tenure Commission’s conclusions and judgment will not be reversed on appellate review as being unjust unless it is against the preponderance of the evidence and the overwhelming weight of the evidence.

It is self-evident that if a Tenure Commission’s decision is against the preponderance of the evidence and the overwhelming weight of the evidence, there is not sufficient evidence to support such conclusion.

Moreover, to the extent that any existing case law is at variance with this opinion, it is, of course, modified.

We now proceed to address the merits of this controversy. We have reviewed the evidence in this case and have concluded, as we did in Mountain Brook, that “there was sufficient evidence to support” the conclusion and decision of the Tenure Commission and that that decision must be affirmed as not “unjust.” Putting it differently, under our rule of review and taking the finding of fact from the record as contained in the Court of Civil Appeals’ opinion, we cannot say, after a review thereof, that the preponderance of the evidence and the overwhelming weight of the evidence is contrary to the conclusion of the State Tenure Commission.

We conclude by affirming the Court of Civil Appeals’ decision as modified herein.

AFFIRMED AS MODIFIED.

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

BLOODWORTH and ALMON, JJ., concur specially.

BLOODWORTH, Justice.

(concurring specially.)

Without retreating from anything I wrote in my dissent in Alabama State Tenure Commission v. Mountain Brook Board of Education, 343 So.2d 522 (Ala.1977), I concur in the, per curiam opinion of the Court. I stated my views in my dissent as did Mr. Justice Almon but the majority of the Court thought otherwise. Now, because of what I consider to be the need for unanimity of opinion on this Court as to the standards and scope of appellate review of State Tenure Commission cases, I join the opinion of the Court.

ALMON, J., concurs.


author: BRADLEY, Judge.

text:
    Charles H. PAYNE, Commissioner of Insurance, Dept. of Insurance, State of Alabama v. Richard D. OVERTON.
    Civ. 1253.
    Court of Civil Appeals of Alabama.
    Nov. 30, 1977.

      Charles H. Barnes, Asst. Atty. Gen. and Gen. Counsel, State Dept, of Insurance, for appellant.
    No brief for appellee.
   BRADLEY, Judge.

This appeal is from an order by the Circuit Court of Montgomery County reversing a decision by the State Insurance Commissioner to revoke Richard D. Overton’s license to sell insurance.

The initial proceedings against Overton commenced when J. C. Snowden, president of American Hospitalization Insurance Service Agency, Inc., and a general agent for Orange State Life Insurance Company and United Fire Insurance Company, filed a complaint with the State Insurance Department alleging that Richard D. Overton, after having been terminated as an agent, had left his employment owing a final agent’s balance of $1,283.93. Snowden claimed that this amount consisted of refunds for overwrite commissions, advances on overwrite commissions and premiums due to be refunded to policyholders. On the basis of these allegations the State Insurance Department brought the following charges against Overton: (1) illegally withholding funds which belonged to the agency with which he had been associated, and (2) filing a false and fraudulent application for an insurance agent’s license.

After notice to Overton, a hearing was held by the Insurance Department on the charges which had been brought against him. During the hearing Overton was represented by counsel and the proceedings were transcribed by a reporter.

Shortly after the hearing Overton was advised that the Insurance Commissioner had determined that Overton had unlawfully withheld funds in the amount of $1,283.93 from the American Hospitalization Insurance Service Agency, Inc. The Commissioner also found that Overton had made false statements (which were not intended to be false) in his application for an insurance agent’s license. Based on these findings, the Commissioner revoked Over-ton’s license to act as an insurance agent. Overton thereupon appealed the revocation order to the Circuit Court of Montgomery County.

At the hearing in the circuit court, the trial judge, over the objection of the Insurance Commissioner, allowed Overton to introduce oral testimony and exhibits which had not been presented during the proceedings before the Insurance Commissioner. The rationale of the trial judge in permitting an examination of evidence which was outside the record made at the hearing before the Commissioner was that such evidence was necessary in order to determine if the Insurance Commissioner’s actions in revoking Overton’s license were “arbitrary” or “capricious.”

Based in part on this “extraneous” evidence, the circuit court reversed the Commissioner’s order revoking Overton’s insurance license. From the circuit court’s judgment reinstating the license of Overton to sell insurance in Alabama this appeal followed.

In its brief to this court the Insurance Commissioner urges that the circuit court committed reversible error in permitting evidence which was not contained in the record of the proceedings before his agency. (No brief was filed on behalf of Overton.)

Title 27, Chapter 2, section 32, Code of Alabama 1975 (formerly Title 28A, section 47) accords an insurance agent the right to appeal an order by the State Insurance Commissioner revoking the agent’s license to sell insurance. This appeal must be taken to a circuit court of competent jurisdiction and pursuant to the provisions of section 32(c) the Commissioner must prepare an official record of the proceedings before his agency. This record is then filed with the circuit court in which the agent’s appeal is pending.

In hearing the appeal, the circuit court may not permit any new or additional evidence to be introduced unless this evidence is for the purpose of demonstrating fraud or misconduct'on the part of some person whose duty it is to administer the statutory provisions of the state insurance laws. Section 32(e) further provides that where there is no allegation or evidence of fraud or misconduct only the certified record compiled before the Insurance Commissioner is available as a basis for determining whether the order of the Commissioner should be affirmed, reversed or modified.

In the case at bar no evidence was offered contending that the Insurance Commissioner was guilty of fraud or misconduct. And section 32(e) does not permit the introduction of evidence which is not contained in the record made before the Insurance Commissioner for any other purpose upon an appeal to a circuit court. Instead, the circuit court must make its determination on the validity or invalidity of the Commissioner’s order of revocation solely on the basis of evidence documented by the record produced as a result of the Commissioner’s hearing on the matter.

Despite this fact, the trial judge apparently felt that the evidence introduced over the Commissioner’s objection (which was independent of the record certified by the Commissioner) was necessary to determine if the Commissioner’s action in revoking Overton’s license was “arbitrary” or “capricious.” Title 27, Chapter 2, section 32(e)(3), Code of Alabama 1975. We conclude that the trial judge erred in admitting such “independent” or “extraneous” evidence.

The provisions of section 32(e) setting out the procedure for review of the Insurance Commissioner’s orders are almost identical to the provisions of Title 37, Chapter 1, section 124, Code of Alabama 1975 (formerly Title 48, section 82), delineating the manner in which an order by the public service commission is to be reviewed. Section 124 provides that:

“ . . . No new or additional evidence may be introduced in the circuit court except as to fraud or misconduct of some person engaged in the administration of this title and affecting the order, ruling or award appealed from, but the court shall otherwise hear the case upon the certified record . .' . ”

As the language of section 124 clearly indicates, no new or additional evidence may be presented to the circuit court unless there has been injected into the proceedings a question of fraud or misconduct on the part of some person charged with administering the public service commission laws and regulations and this fraud or misconduct has an effect on the order being appealed. See Carroll v. Alabama Public Service Commission, 281.Ala. 559, 206 So.2d 364 (1968); Avery Freight Lines v. Persons, 250 Ala. 40, 32 So.2d 886 (1947); Alabama Public Service Commission v. Crow, 247 Ala. 120, 22 So.2d 721 (1945); Avery Freight Lines v. White, 245 Ala. 618, 18 So.2d 394 (1944).

Furthermore, Title 16, Chapter 24, section 10, Code of Alabama 1975 (formerly Title 52, section 360), establishes a limitation on the manner in which the state tenure commission may proceed in its review of the quasi-judicial actions of an administrative board and this limitation is similar to the restraints found in Title 27, Chapter 2, section 32(e) and Title 37, Chapter 1, section 124. Under section 10 of the Teacher’s Tenure Law, a teacher has the right to appeal the cancellation of his contract by a board of education to the state tenure commission. However, the commission can consider only the evidence recorded at the teacher’s hearing before the board. Alabama State Tenure Commission v. Mountain Brook Board of Education, Ala., 343 So.2d 522 (1977).

Thus, it is clear that where there is statutory language limiting the scope of review by a circuit court to the record of evidence taken during an administrative proceeding, the circuit court is not empowered to permit extraneous evidence on a matter before it unless there exists a statutory provision expressly according the court the right to take such action.

Nor may the circuit court, in the absence of some provision which authorizes it, allow evidence outside the record taken during a hearing before an administrative body for the purpose of determining if the administrative body acted in an arbitrary and capricious manner. Indeed, cases which have arisen under both the Teacher’s Tenure Law and statutory provisions dealing with the public service commission have held that an action by an administrative board or commission is “arbitrary” (and thereby subject to reversal) only if the proceedings before the board or commission constitute a denial of procedural due process or the order issued as a result of administrative findings is unsupported by the evidence presented to the board or commission. State Tenure Commission v. Madison County Board of Education, 282 Ala. 658, 213 So.2d 823 (1968); Alabama Public Service Commission v. Southern Bell Telephone & Telegraph Co., 253 Ala. 1, 42 So.2d 655 (1949).

Likewise, under section 32(e) a determination on whether the Insurance Commissioner’s order is arbitrary or capricious must be made on the basis of the evidence set out in the record compiled at the hearing before the Commissioner or his representative. And if the Commissioner’s ultimate decision on the matter before his agency is unsupported by the evidence documented by record taken at the hearing before the Commissioner (or facts surrounding the proceedings out of which the Commissioner’s order arose warrant it), then the circuit court may, upon appeal, reverse the Commissioner’s order on the grounds that it was arbitrary or capricious.

In this particular case the objected to evidence was offered during the proceedings in the circuit court and its purpose was to show that the Commissioner had been arbitrary and capricious in his enforcement of certain provisions of the insurance code. The proper place to have presented such evidence was at the hearing before the Insurance Commissioner. Since Overton did not follow this procedure, the judgment of the circuit court is reversed and the cause remanded for a review of the Insurance Commissioner’s order to be conducted according to the provisions of Title 27, Chapter 2, section 32(e)(l)-(3), Code of Alabama 1975.

REVERSED AND REMANDED WITH INSTRUCTIONS.

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

      . Title 27, Chapter 2, section 32(e)(1) — (3), Code of Alabama 1975:
      “(e) In hearing the appeal by the circuit court and by the court of civil appeals of Alabama on appeal to it as provided in subsection (g) of this section, the commissioner’s decision or order shall be taken as prima facie just and reasonable. No new or additional evidence may be introduced in the circuit court except as to fraud or misconduct of some person engaged in the administration of this title and affecting the decision or order appealed from, but the court shall otherwise hear the case upon the certified record. The court shall reverse, vacate or modify the commissioner’s decision or order in whole or in part if it finds that:
      “(1) The commissioner erred to the prejudice of appellant’s substantial rights in his application of the law; or
      “(2) The decision or order was procured by fraud or was based upon a finding of facts contrary to the weight of the evidence; or
      “(3) The commissioner’s action was arbitrary or capricious.”


author: HOLMES, Judge.

text:
    Auburn H. SCOTT and wife, Hazel H. Scott v. Roger L. GILL, Dianne P. Gill, and Hazel Kistler Docking, d/b/a Docking Realty.
    Civ. 1201.
    Court of Civil Appeals of Alabama.
    Dec. 7, 1977.

      Richard H. Ramsey, III, and J. Ronald Storey, Dothan, for appellants.
    T. E. Buntin, Jr., Dothan, for appellees.
   HOLMES, Judge.

This is an appeal by plaintiffs-appellants from the Circuit Court of Houston County, Alabama. That court, after an ore tenus hearing, entered a judgment for the defendants-appellees.

Appellants’ cause of action under their complaint, as set out in the trial court’s pretrial order, was for damages for a breach of warranty. The plaintiffs-appellants alleged that the defendants-appellees sold a tract of land to the appellants and warranted that the property was suitable for the appellants to move a house trailer upon the land and to live there as a residence. The appellants further alleged that the property was not suitable as a homesite due to the fact that they had been denied a health permit to place a septic tank on the premises.

The appellees-defendants, however, argued that no representation or warranty was made concerning the placement of a septic tank. The appellees also contend that no mention was made of a septic tank or health certificate during the entire negotiations concerning the property.

As noted above, after an ore tenus hearing, the court entered judgment for the defendants-appellees.

At the outset, we note the time-honored principle that when evidence is heard ore tenus, every presumption will be indulged in favor of the trial court’s findings of fact. These findings will not be disturbed on appeal unless plain and palpably wrong. This rule is especially applicable when oral testimony of witnesses is in direct conflict and some of the testimony supports the trial court’s findings. See Ingram v. Bank of Brewton, Ala.Civ.App., 340 So.2d 815 (1976); Rafield v. Johnson, 294 Ala. 235, 314 So.2d 695 (1975).

The record reveals that appellant-Scott contacted appellee-Docking, a real estate broker, in an effort to purchase some property on which he would set up his trailer. Appellants purchased the lot in question for $1,150 and then proceeded to clean up the property and put down a well. They subsequently attempted to get a permit from the Houston County Health Department in order to set up a septic tank, but they were denied such. Appellants were thereby, for all practical purposes, prevented from setting up their trailer on the property although testimony reveals that there were several trailers in the area which had such septic tanks.

The pivotal question in this case is whether there was a representation or warranty made to the appellants regarding the suitability of the land for its intended use. The testimony of the witnesses, as revealed by the record, is in dispute as to this subject.

For better understanding of the basis of this conflict, the parts of appellant-Scott’s testimony dealing with the “representation or warranty” is set out below.

“Q Now, on your first visit to the lot, was any possible prospective use of that land discussed?
“A Not a bit. Just all she told me, says, ‘This land is ready to go. All you’ve got to do is clean it off, put your well down, and the county will take care of your streets for you.’
“Q Did you tell her what, if anything, you intended to use the property for?
“A I told her I was going to put a trailer on it. Put a house trailer on it.
“Q And did you tell Mrs. Docking that you intended to live in that trailer as your residence?
“A I intended to live in it. Because, I told her that’s exactly what I wanted to buy it for, to live on it, so I could get out from where I was at.
“Q What, if anything, did Mrs. Docking reply to you, after you told her you were buying the property to live on it?
“A Well, the only thing she said, she said, ‘It’s ready to go. All you’ve got to do is clean it off. Get your power pole down. Get on it.’ ”

Likewise, the testimony of appellee-Dock-ing dealing with the same issue is set out below.

“Q I’ll ask you, if before the sale of this property to Mr. and Mrs. Scott, if you knew whether or not a septic tank permit could be granted on the particular lot?
“A I did not.
“Q I’ll ask you if you made any representations to Mr. Scott that a septic tank permit could be granted?
“A I did not.
“Q And did you make any kind of representations to them, other than the property was unrestricted?
“A That’s the essence of my representations, was that, for all practical purposes, as far as I knew, they could put a trailer, a house, or anything there.”

From the above, it can be seen that the trial court could have found no express warranty was made by the defendants regarding the suitability of the land for its intended use. Clearly, no warranty relating to the septic tank was established below. In any event, we cannot say the findings by the trial court are plain and palpably wrong.

Furthermore, while Alabama courts recognize the implied warranty of fitness and habitability for the purpose purchased in newly constructed homes, we know of no such implied warranty extending to the purchase of lands. The physical condition of the premises has fallen under the rule of caveat emptor. See Cochran v. Keeton, 287 Ala. 439, 252 So.2d 313 (1971); 77 Am. Jur.2d Vendor and Purchaser § 329.

We also note that the facts in this case do not present a situation in which there was a failure to disclose or a fraudulent concealment. See Jackson Company v. Faulkner, 55 Ala.App. 354, 315 So.2d 591 (1975).

In summary, the trial court could well have found that no warranty, expressed or implied, existed in this case and we cannot say that such finding is plain and palpably wrong.

The case is due to be affirmed.

AFFIRMED.

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


text:
    Nancy J. ROSSER v. James H. ROSSER.
    Civ. 1219.
    Court of Civil Appeals of Alabama.
    Dec. 7, 1977.

      Louis W. Scholl, Birmingham, for appellant.
    Robert E. Paden, Bessemer, for appellee.
   WRIGHT, Presiding Judge.

This is a divorce case. The issues on appeal relate to the division of property and award of alimony and attorney fees. We affirm the judgment below.

The parties were married in 1949. They have three adult children. After marriage they located on 345 acres owned by the husband’s parents. With the aid of the husband’s father, the parties built the acreage into a dairy farm. In 1964, the husband’s parents gave title to the farm to the parties jointly with right of survivorship. An additional tract of 200 acres was subsequently purchased with joint title.

In 1975 the parties moved from the farm into an. apartment, intending to build a new home on the farm. The home was not built and separation occurred. The wife brought suit for divorce alleging incompatibility.

The evidence tended to show that the estate of the parties owned jointly consisted of the farm and the 200 acres of unimproved land. The farm was found by the court to be of the value of $250,000 with indebtedness against it of $160,000. The 200-acre tract was appraised at $100,000 without indebtedness against it. Tax returns indicate the dairy has operated at a loss since 1974. There was evidence that if suffered from mismanagement since the husband had left its active supervision and become engaged in a tractor business. There was testimony that it would take at least two years of good management and considerable investment to get the dairy back into a profit position.

The husband owns about half the stock in a tractor company and a half interest in the real property where the business is located. Financial statements of the company indicate a net loss in 1976. Husband owns a lot in Atlanta and three resort lots of the net value of $6,500.

The wife worked in the tractor business until this action arose and is now employed in a bank earning $450 per month.

The judgment of the court granted a divorce, and awarded the wife title to the 200-acre parcel of land, a cemetery lot, a 1975 Lincoln automobile and certain other personalty. All other property and assets were awarded the husband subject to all indebtedness. No alimony was given the wife, but the court reserved the right to make an award at a future time. Attorney fees of $2,000 was assessed against the husband.

The wife submits that the awards to her are inadequate. She bases her contention largely upon the finding of the court of the value and indebtedness of the dairy farm. The wife’s contention may not prevail because the finding of the value of the farm is supported by the evidence and is buttressed by a presumption of correctness. Meyers v. Meyers, 55 Ala.App. 697, 318 So.2d 725 (1975). Having correctly determined the value of the estate, the division thereof between the parties upon a divorce is a matter within the discretion of the court. The exercise of that discretion will not be set aside upon review except for palpable abuse. Segars v. Segars, 334 So.2d 684 (Ala.Civ.App.1976). Our appellate courts have often said that though we might not have reached the same judgment had we been sitting as the trial judge, such does not permit us to reverse in the absence of a clear and arbitrary abuse of discretion. Novak v. Novak, 339 So.2d 77 (Ala.Civ.App. 1976).

In view of the undisputed testimony as to the large indebtedness of the dairy, the time and cost of its return to production of income and the absence of evidence as to a current income of the husband, we are unable to find a clear abuse of discretion in failing to require immediate payment of alimony. The same conclusion must be given the claim of an insufficient award of attorney fees. Such award, like alimony, is for the discretion of the trial court. Pruett v. Pruett, 333 So.2d 580 (Ala.Civ.App.1976).

We deny attorney fees on appeal.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


text:
    Abram W. VanderMEER and Barbara G. VanderMeer v. STATE of Alabama, DEPARTMENT OF REVENUE.
    Civ. 1251.
    Court of Civil Appeals of Alabama.
    Dec. 7, 1977.
    William H. Tucker, Tuscaloosa, for appellants.

      Bill Thompson, Asst. Counsel, Dept, of Revenue and Asst. Atty. Gen., for the State of Ala., Dept, of Revenue.
   WRIGHT, Presiding Judge.

This is an appeal from a judgment in favor of the State for income tax. We affirm.

Taxpayer was employed by the State of Pennsylvania. He had earned a retirement annuity from the Pennsylvania Retirement System and had retired. According to the conditions of his retirement, payments are made to him monthly during his life and one-half of such payments to his beneficiary for life. Monthly payments to taxpayer of $2,2058.66 began in June 1974. He drew a total of $24,703.93 in 1975, the year in question.

In February 1975 Taxpayer and his wife entered into a separation agreement, which was incorporated into a divorce decree of March 1975. Pertinent parts of the agreement read as follows:

“Abram William VanderMeer hereby sets over and assigns as a property settlement a part of these contract rights as follows:
“Abram William VanderMeer shall irrevocably assign and transfer to Elinore Margaret Sexton VanderMeer and shall irrevocably designate her as the beneficiary of a share of his Commonwealth of Pennsylvania State Employees Retirement System, which is a vested contract right, a share of approximately one-half thereof consisting of $1,050 per month.” (R.27, 28).

Upon the divorce Taxpayer notified the System that $1,050 per month had been assigned or transferred to his wife and requested that payment be made directly to her. The System replied that the conditions of the annuity would not allow this, and continued to send the checks to Taxpayer throughout 1975. Upon receipt of each check, Taxpayer would send a check for $1,050 to his former wife.

The Department of Revenue of the State of Alabama asserted that the total annuity payments were includable in Taxpayer’s gross income, with no exclusion for the payments to his wife. A final assessment of $2,203.15 was made, and this amount was paid. Of this, $571.07 was paid under protest and an appeal was taken to Tuscaloosa County Circuit Court. The facts were stipulated. Judgment was entered for the State on July 15, 1977.

The position of taxpayer is that the annuity assignment provisions of the separation agreement operate to prevent $1,050 of each annuity payment from being income taxable to him. He asserts that since he no longer “controls” this sum, he is merely a “conduit” for its passage from the Pennsylvania State Employees Retirement System to his former wife.

This position is incorrect. A transfer of the vested annuity right has not taken place, despite the separation agreement, because 71 Pa.Cons.Stat.Ann. § 5953, dealing with the annuity in question, provides “the right of a person to any benefit or right accrued or accruing under the provisions of this part and the moneys in the fund . . . shall be unassignable ..” Relying on cases found at 37 A.L.R.2d 1258, Taxpayer contends that an assignment prohibition is ineffective where assignment is made merely of money due under a contract. However, these cases all deal with prohibitions found in contract clauses, except for Dickson v. City of St. Paul, 97 Minn. 258, 106 N.W. 1053 (1906) which concerned provisions in a city charter. In the instant case the prohibition is embodied in the statute creating the annuity and cannot be said to be an improper restraint on the right of individuals to contract. Pennsylvania recognizes that a right may not be effectively assigned where such assignment is prohibited by the writing creating the right. Concrete Form, Inc. v. W. T. Grange Constr. Co., 320 Pa. 205, 181 A. 589 (1935).

Taxpayer devotes much attention to classifying the annuity provisions of the separation agreement as a property division rather than alimony. Such a distinction is unnecessary because no transfer of annuity rights has taken place at all. Because the assignment was ineffective, Taxpayer has a statutory and contractual right to the full monthly payment of $2,058.66. Whether because of the separation agreement and the judgment of divorce he is obligated to pay his former wife $1,050 per month has no effect on his tax liability. “The one who is to receive the income as the owner of the beneficial interest is to pay the tax.” Blair v. Commissioner of Internal Revenue, 300 U.S. 5, 12, 57 S.Ct. 330, 333, 81 L.Ed. 465 (1937). There being no valid assignment, Taxpayer remains the owner.

Even if the attempted assignment did effect a transfer of the right to income, it would still be ascribed to Taxpayer under Helvering v. Horst, 311 U.S. 112, 61 S.Ct. 144, 85 L.Ed. 75 (1940) and Lucas v. Earl, 281 U.S. 111, 50 S.Ct. 241, 74 L.Ed. 731 (1930). Taxpayer seems to assert that the application of those principles is dependent upon the existence of a tax avoidance purpose, but such a condition does not appear.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


text:
    Lorenzo Edward GREEN, alias v. STATE.
    1 Div. 862.
    Court of Criminal Appeals of Alabama.
    Dec. 6, 1977.

      Reginald H. Stephens, Mobile, for appellant.
    William J. Baxley, Atty. Gen., and David W. Clark, Asst. Atty. Gen., for the State.
   BOWEN W. SIMMONS, Retired Circuit Judge.

Appellant, an indigent, was indicted for murder in the first degree and convicted of such offense on a plea of not guilty; sentence, life imprisonment.

The victim was an elderly white man. Appellant was a minor about nineteen years of age. The purpose of the attack was robbery. The victim had been in a supermarket. Outside the store were three young black males, Lonnie Price, Lorenzo Green (appellant), Donald Robertson and Johnnie MeCorvey. Robertson walked in the store to make a purchase and made comment about the old man having money. When the victim came out Robertson and MeCorvey walked up the street with him. Prince and Green (appellant) walked up the same street to the home of Prince’s mother where they stopped. The others had gone down the railroad tracks following the old man.

Prince handed Green (appellant) a closed pocket knife. Green then joined Robertson and MeCorvey, who were robbing the old man. Appellant testified that Robertson took the knife from him and stabbed the victim.

After this, Robertson ran across the tracks and a train passed. MeCorvey and appellant then joined him. Robertson thereupon gave the knife back to Green. Robertson rejoined Prince in front of the house. MeCorvey and Green joined the two and Green gave the knife back to Prince who cleaned it.

The evidence further showed that the victim was stabbed several times, three of which were severe enough to produce death.

Thus, it appears that appellant was implicated in the robbery and death of the victim. The jury’s verdict was supported by ample evidence.

I

Appellant contends that the trial court committed grievous error in overruling his timely objections to the State using or referring to his Juvenile Court records. T. 13A, § 5-132, Code of Alabama, 1975 Interim Supplement. This Section inhibits such use.

Appellant’s first objection and motion for a mistrial were made after he took the stand. On cross-examination the State interrogated him with reference to his conduct.

“Q You said you did not want to help in that robbery because you were already in trouble. Is that what you said on direct examination?
“A Yes, sir.
“Q You were in trouble right at that time; is that right?
“A I was in trouble—
“Q At the time before the robbery? “A Well—
“Q You were in trouble, right?
“A Yes, sir.”

A series of questions then followed regarding defendant’s use of brass knuckles, which defendant denied.

It appears from the evidence that defendant opened up the subject of the trouble he was in, thus permitting cross-examination with reference to such trouble.

We fail to find in the series of questions about defendant’s trouble had any reference to any proceedings in the Juvenile Court, or was there any effort to introduce such records if there were any. For aught appearing, the Juvenile Court had not acquired jurisdiction of defendant and he was not a ward of that Court. The Court’s rulings were free from error.

II

Appellant called Mrs. Meta M. Knight. She testified on direct-examination as to appellant’s general reputation in the community in which he resided. She said his reputation was good. Next she testified that his general reputation for truth and veracity was good in the community in which he lived.

On cross-examination the State asked her if she had heard that defendant was arrested on February 23, 1976, for assault and battery based on the use of “numb chucks.” The defense objected. The court thereupon excluded the jury and discussed the law with the attorneys. The court warned the attorney for the State not to refer to “any convictions.” The court, after such instructions, overruled the objection.

We, again, note there was no reference in any of the questions to any juvenile records or convictions. For aught appearing, defendant had not been brought into Juvenile Court, The State was permitted to ask the witness if she had heard that defendant had been suspended from high school on March 16, 1976, for fighting. In conducting this examination the State did not mention any Juvenile Court proceedings against defendant. All the questions directed to Mrs. Knight by the State as to defendant’s behavior were based on what the witness had heard. The questions thus predicated were permissible and proper. Mitchell v. State, 14 Ala.App. 46, 70 So. 991(3); Shiflett v. State, 38 Ala.App. 662, 93 So.2d 523(2). None of the questions addressed to the witness on the issue of defendant’s character was based on her personal knowledge, but only on rumors on what she had heard.

We find no error in the Court’s rulings. The judgment is affirmed.

The foregoing opinion was prepared by the Honorable BOWEN W. SIMMONS, a retired Circuit Judge, serving as a Judge of this Court, under the provisions of § 6.10, of the new Judicial Article (Constitutional Amendment No. 328); his opinion is hereby adopted as that of the Court.

AFFIRMED.

All the Judges concur.


author: LEIGH M. CLARK, Retired Circuit Judge.

text:
    John ERVIN, Jr. v. STATE.
    2 Div. 205.
    Court of Criminal Appeals of Alabama.
    Dec. 6, 1977.
    L. M. Lowery, Jr., Linden, for appellant.

      William J. Baxley, Atty. Gen., and Mary Jane LeCroy, Asst. Atty. Gen., for the State.
   LEIGH M. CLARK, Retired Circuit Judge.

Appellant was indicted and tried for murder in the first degree. The jury found him guilty of murder in the second degree and fixed his punishment at imprisonment for ninety-nine years. He was sentenced accordingly.

By his appointed counsel on the trial, who was also appointed to represent him on appeal, the only claimed basis for a reversal of the judgment is to the effect that the evidence shows without dispute that defendant was acting in self-defense at the time he killed James Poole, the alleged victim.

There is little conflict in the evidence on the issue as to self-defense. Two eyewitnesses, one a nephew of defendant and the other a son of the woman with whom defendant was living at the time, testified as to what they saw and heard, and defendant himself took the stand and gave his version of what occurred.

In his dedicated effort to discharge his obligation to his client, counsel for appellant gives the following summary of what took place on the occasion of the alleged crime:

“The facts on this case are very simple and show that the Defendant, John Er-vin, Jr., accompanied by his common law wife, Willie Carter Ervin, drove up to a trailer in which he lived with his said common law wife. Upon arriving at the trailer, the Defendant noticed the deceased, James Poole, out in front of the trailer standing near the decedent’s truck. After parking his automobile, the Defendant went back to talk to the deceased. Upon arriving at the location where the deceased was standing, the deceased asked the Defendant if he had a screwdriver and the deceased replied that he did not. Thereupon, the decedent requested the Defendant to take him to Uniontown, Alabama. The Defendant^ replied that he could not take the deceased to Uniontown, Alabama, because, in effect, the decedent had stated that he was going to get the Defendant and Willie Carter Ervin the next time he caught the two of them together.
“Thereupon, after a step backward during which the decedent stated he was a man of his word and did what he said he would do, the decedent put his right hand in his pocket and took two steps directly toward the Defendant; when the Defendant saw these actions by the decedent, he took two steps backward, pulled out his gun and fired at the decedent, killing him.”

Appellant’s counsel properly goes further in narrating some of the evidence as to matters prior to the events summarized, which, of course, are being taken into consideration, but for the present we consider whether the facts stated preclude a finding against defendant on the issue of self-defense. We think they do not.

A glaring defect in the stated facts as a basis for a legally privileged taking of the life of another is the absence of any showing therein that defendant was in imminent danger of great bodily harm or death or that he had reasonable ground for believing at the time that he was in such danger.

To be added to the statement of counsel for appellee are facts shown by the undisputed evidence that deceased was not armed, that he had no gun, no knife, or weapon of any kind, in his pocket or anywhere about him at the time. There was strong contention on the trial that perhaps someone had removed a knife or other weapon from the clothes of deceased, but this contention was not supported by any evidence. The contention, as well as the proof to the contrary, emphasizes the weakness of the defense as to the essential element of imminent danger of death or great bodily harm or reasonable ground for belief that there was. In addition, the evidence shows without dispute, although defendant was not clear in his recollection as to the number of shots fired, that three distinct shots of the pistol were fired by defendant so effectively as to hit the victim, one grazing a shoulder, another entering his right side, and the third entering into a shoulder area and thence into the right side of the chest cavity, into the left lung and through the tissue of the back and out. The evidence further shows that the pistol snapped once before a bullet was fired and that after the victim had moved from his position when first shot, had walked toward the driveway and fallen in front of the truck, face down, defendant walked over and “put the gun down to” four inches from the victim’s head, at which time the pistol snapped. Defendant then put his gun in his pocket and left the scene.

It would probably not be fair to appellant not to summarize the background evidence. Defendant was living in a mobile home with a woman with whom the victim had previously lived. He and the woman testified that their relationship was that of a common law marriage. However, the evidence shows that she was continuing to go by the name of her deceased husband and was obtaining money in that name. Approximately three months prior to the alleged crime, defendant and decedent had a prior altercation in which decedent shot defendant with a pistol, which altercation grew out of a relationship between defendant and the particular woman. Defendant testified that at that time deceased threatened to kill defendant if he found the two together again.

As to appellant’s statement in his summary of the facts that the truck of the victim was parked in front of defendant’s home, the record shows that it had stopped in front of the mobile home of the woman with whom defendant was living, but that it was on the shoulder of the public road. There is no substantial evidence to the effect that the victim was there for any hostile purpose. The truck had broken down. The hood of it had been lifted, and Poole, the driver, was attempting to get it started. In asking defendant for a screwdriver, there is no evidence of any intent on the part of decedent other than to get the truck started and get away. There was no aggressive movement or word on his part until the remark of defendant relative to the previous altercation between them.

The trial court comprehensively charged the jury on the defense of self-defense and the essential elements thereof. There was no exception to the charge.

It was for the jury to say whether defendant was free from fault in bringing on the difficulty, whether there was reasonable ground for belief that he was in imminent danger of death or great bodily harm, and whether he was within the curtilage of his home so as to come within exception to the usual duty to retreat before taking human life if such can be done without increasing the danger. Cooley v. State, 233 Ala. 407, 171 So. 725; Ray v. State, 253 Ala. 329, 45 So.2d 4; Washington v. State, Ala. Cr.App., 339 So.2d 611. A resolution against defendant of any of the stated elements of the defense of self-defense disenti-tled defendant to the resolution in his favor of the issue of self-defense. McDonald v. State, Ala.Cr.App., 340 So.2d 80, cert. denied, Ala., 340 So.2d 84, Collier v. State, 57 Ala.App. 375, 328 So.2d 626, cert. denied, 295 Ala. 397, 328 So.2d 629; Usrey v. State, 54 Ala.App. 448, 309 So.2d 485, writ denied, 293 Ala. 776, 309 So.2d 489.

We find no error in the record prejudicial to appellant and conclude that the judgment and sentence of the trial court should be affirmed.

The foregoing opinion was prepared by Retired Circuit Judge LEIGH M. CLARK, serving as judge of this Court under the provisions of § 6.10 of the New Judicial Article (Constitutional Amendment No. 328); his opinion is hereby adopted as that of the Court. The judgment below is hereby

AFFIRMED.

All the Judges concur.


text:
    Arthur Lee TAYLOR v. STATE.
    3 Div. 784.
    Court of Criminal Appeals of Alabama.
    Dec. 6, 1977.
    Bob E. Allen, Montgomery, for appellant.
    William J. Baxley, Atty. Gen., and Mary Jane LeCroy, Asst. Atty. Gen., for the State.
   BOWEN W. SIMMONS, Retired Circuit Judge.

Jury conviction of defendant was for rape; sentence: twenty-four years imprisonment.

The victim of the alleged rape was about twenty years of age and was unmarried at the time. The offense took place in Montgomery County on August 11, 1976.

It appears from the evidence that the victim and a female companion, who was two years younger, were accosted by defendant on, or near, a railroad track about 9:30 a. m. They were ordered to proceed a short distance to a certain point, where they entered some bushes. The defendant had a rifle in his possession which he pointed in the direction of the victim and her companion when he ordered them into the bushes. He tied the companion’s legs and tied a cloth over her mouth. He then proceeded further into the bushes with the victim and raped her.

The companion, who was not raped, untied her legs and escaped. Defendant came back looking for her, but to no avail. He fired his gun once during the search, then directed the victim to follow him.

The next stop was at a bridge, some distance away, where he had sex with her again, against her will and consent. They then proceeded to a point behind Smiley Court Apartments where the third sex contact occurred. All three acts took place between 9:30 a. m. and 2:00 p. m., or a short time before. The victim managed to get away from defendant at Smiley Court, but not before a second shot was fired as will hereafter appear.

I

It appears that defendant signed an in-culpatory instrument, Exhibit No. 13, which was read into the record (Tr. 24) after proper predicate.

The signed instrument contained the following:

“ . . . Question: Did you shoot your gun in Smiley Court this day? Answer: Yes, I did. Question: Who did you shoot at? Answer: I believe it is Quinne Jackson. Question: Why did you shoot at her? Answer: Because she told me she would die and go to hell before she would let her daughter marry me. Question: Where was the girl that you got off the tracks at this time? Answer: She was with me at the time of the shooting . . .."

Defendant objected to the admission in evidence of the confession because it included the quoted part, supra. He contended it referred to a different and distinct offense, evidence of which was not admissible.

We conclude that the objection had no merit and was properly overruled. The incident was a part of the res gestae.

We have read the entire record which indicates that the shooting took place at Smiley Court while the victim was under his direction and control; and, was where the third rape took place. Being a part of the res gestae, the evidence was admissible. Hobbs v. State, 75 Ala. 1; Boggs v. State, 268 Ala. 358, 106 So.2d 263(3); Vol. 6, Alabama Digest, Criminal Law, >§=>365(1).

II

The next contention is that the in-culpatory statement was inadmissible because it was obviously made in connection with a kidnapping charge which had been placed against the defendant. There is nothing in the record that we can find which supports appellant’s statement in his brief that kidnapping charges were ever placed against the defendant. The words “Subject, kidnapping,” appearing at the top of the confession, was probably the idea of the interrogating officer, that defendant should be charged with kidnapping; but there is nothing to indicate that such a charge was ever placed. The restraint of the victim against her will and the alleged three sexual contacts were interwoven and a part of the same transaction. There was ho error in admitting the statement in evidence, over defendant’s objection.

III

Police officer Huffman testified he saw defendant running through Smiley Court with a rifle which he pointed in his direction; that on such presentation he moved fast and while so retreating, he heard a shot. An objection to this evidence was overruled.

The fact that defendant fired the rifle in the direction of the officer was relevant to show a continuation of his unlawful behavior and propensity to shoot. We think the firing was a part of the res gestae. The evidence was admissible. Boggs v. State, supra.

IV

Appellant asserts prejudicial error by the trial court in overruling his timely objections to the admission in evidence of photographs (Exhibits No. 1 & 4) of certain articles — a woman’s purse and a pair of pants; also in admitting a pair of tennis shoes in evidence marked Exhibit 8; and, a pair of plaid pants for a man (Exhibit 9); a jacket (Exhibit 10); a blue shirt, white bra, a pair of women’s pants, and blue denim overalls; all marked Exhibit 11. He contends that proper and sufficient predicate was not laid for such admissions.

The best we can tell from the record, there was an insufficient predicate as to some items, but not all.

It appears from the evidence that these items appearing in the photograph were found at the scene of the first rape (at or near the railroad tracks) on the day of the alleged rape. Some of the other articles were worn by defendant; others by the victim or her companion.

We fail to see how these items in evidence resulted in any prejudicial harm to defendant. Evidence of the victim identified defendant as her assailant; other evidence described the clothes she was wearing. The companion testified as to her presence and restraint by defendant, her ownership of a purse, and her escape.

The defendant did not take the stand, nor did he offer any witness. He signed a voluntary statement, placed in evidence, in which he admitted being at the railroad tracks, his restraint of the girl companion, and his sexual intercourse with the prosecu-trix at three different places. This statement was supportive of the victim’s testimony; and, also supported the testimony of the girl companion. We think ARAP 45 applies. There was no disputed issue of defendant’s identity, or of the sex acts. Defendant did not deny his guilt; in fact his own statement confessed his guilt. The trial court ruled the statement was voluntary; it was undenied before the jury.

We find no prejudicial error in the record. The judgment is affirmed.

The foregoing opinion was prepared by the Honorable Bowen W. Simmons, a retired Circuit Judge, serving as a Judge of this Court, under the provisions of § 6.10, of the new Judicial Article (Constitutional Amendment No. 328); his opinion is hereby adopted as that of the Court.

AFFIRMED.

All the Judges concur.