author: BEER, Judge.

text:
    Hersey C. RIDENOUR v. KAISER ALUMINUM & CHEMICAL CORPORATION.
    No. 6927.
    Court of Appeal of Louisiana, Fourth Circuit.
    Aug. 5, 1975.

      Tonry, Mumphrey & Dragon, Richard A. Tonry, Chalmette, for plaintiff-appellant.
    Lemle, Kelleher, Kohlmeyer & Matthews, Paul B. Deal, New Orleans, for defendant-appellee.
    Before SAMUEL, BOUTALL and BEER, JJ.
   BEER, Judge.

Plaintiff-appellant, Hersey C. Ridenour (hereinafter, “Ridenour”), was found to have been injured in the course and scope of his employment with Kaiser Aluminum & Chemical Corporation (hereinafter, “Kaiser”) on September 30, 1971 and was awarded total and permanent workmen’s compensation benefits at the then applicable rate of $49.00 weekly for 500 weeks.

In making the award, the trial court allowed defendant-appellee, Kaiser, a credit of $49.00 per week for 104 weeks reasoning that such credit was in accordance with the particular contractual relationship existent between the litigants.

The collective bargaining agreement between Kaiser and Local 13000, The International Union of District 50 (hereinafter, “Local 13000”), provided that the injured Ridenour, a member of Local 13000, and thus covered by the agreement, would receive a weekly payment of 28 times his hourly rate of $4.63 for two years (104 weeks) from the date of injury. These payments were made at the rate of $129.64 per week. At the end of 104 weeks Kaiser continued its payments to Ridenour at the rate of $49.00 per week.

Prior to the pertinent dates, Kaiser had made certain fiscal and administrative arrangements, including the maintenance of certain insuring agreements, to meet its collective bargaining contractual obligations to the members of Local 13000 at no cost to any of them.

The clear-cut issue presented to us for adjudication by able counsel for Local 13000 and Kaiser is this:

Was the trial court correct in its interpretation of the facts of this case as they relate to the collective bargaining agreement and the applicable provision of the workmen’s compensation statutes which resulted in the trial court’s allowance of the credit?

We hold that it was and affirm the judgment.

The collective bargaining agreement did not violate LSA-R.S. 23:1033 by providing that:

“In case an employee makes claim for nonoccupational sickness and accident benefits and receives benefits thereunder and also makes claim for Workmen’s Compensation and receives benefits thereunder, he shall make restitution of the appropriate portion of the non-occupational sickness and accident benefits.” Article 34, Section lB(2)(c) (Emphasis ours.)

Indeed, this particular provision of the agreement contemplates the specific situation that exists in this case. The contract between the parties was obviously hammered out in the heated caldron of the collective bargaining process, skillfully conducted both by Local 13000 and Kaiser. The bargainers were doubtlessly aware of the unequivocal language of LSA-R.S. 23:1033 and the cases following. Local 13000 properly wished to provide the best possible financial security for its injured members; Kaiser rightfully sought to take care of both its statutory obligations and collective bargaining commitments in a procedural arrangement that would be acceptable to the union and not violative of the workmen’s compensation statutes. Both apparently felt that to provide for an offset, as such, with respect to compensation payments, was to possibly enter the danger zone of litigation. However, the concept of restitution could accomplish the intended collective bargaining result and (hopefully) avoid the litigious pitfall with which we are now, nevertheless, concerned.

At any rate, the important point is not the mechanical method employed to accomplish the payment to the injured Ridenour of $129.64 per week for 104 weeks and $49.00 per week for 396 weeks thereafter; nor is it the fact that Kaiser’s total obligation under the Workmen’s Compensation Act was to pay $49.00 per week for 500 weeks; nor is it the fact that Ridenour would have gotten $129.64 per week for two years even if he had been injured away from the job. What is important is that the binding agreement between the parties specifically dealt with the particular issue here involved. For what other reason could Article 34, Section lB(2)(c) have been incorporated into the collective bargaining agreement? We can conceive of none.

We would, of course, nullify that portion of any agreement between employer and employee that directly or indirectly relieved the employer, in whole or in part, from his statutorily imposed responsibility. Any wording in the collective bargaining agreement, however subtle or unique, which, in any way, adversely affected the permanently and totally disabled Riden-our’s right and ability to receive $49.00 per week for 500 weeks would be struck down by us. But that is not what has taken place. The sum and substance of Riden-our’s statutory and collective bargaining relationship with Kaiser was this:

If he was injured on the job and it was determined that he was, as a result, permanently and totally disabled within the applicable provisions of the Workmen’s Compensation Act he would receive, after doing the arithmetic required by the restitution provision of the collective bargaining agreement, $49.00 per week for 500 weeks and, in addition, $80.64 per week for the first 104 weeks (two years). That $80.64 figure is arithmetically arrived at by the restitution of $49.00 per week from the $129.64 per week paid during each of the first 104 weeks of disability — all in accordance with the collective bargaining agreement between the parties.

We agree with articulate counsel for appellant that, as he so well states, the very nature of the collective bargaining agreement is quid pro quo. It is the overall mutual - consideration which passes between the particular parties to a contract to render it valid and binding. In adjusting, by the restitution provision, the net amount that would be paid to Ridenour during the first 104 weeks (or two years) of his disability, the parties doubtlessly gave or took on other related or unrelated bargaining issues. But the prohibition clearly set out in LSA-R.S. 23:1033 was not violated then in principle nor now in practice.

Counsel for appellant seeks support from our holding in Byrd v. Kaiser Aluminum and Chemical Corporation, La.App., 314 So.2d 448 (Decided on June 11, 1975), but that decision turned on a credibility call and did not reach the issue raised here.

No useful purpose is served by a discussion of prior holdings in somewhat similar but distinguishable circumstances from those existent here. The record supports the conclusion reached by the trial court. We affirm the judgment of the district court; costs of this appeal to be paid by appellant.

Affirmed.

      . This finding is not appealed and is final. The sole issue in this appeal is the validity of the credit allowed by the trial court.

      . “No contract, rule, regulation or device whatsoever shall operate to relieve the employer, in whole or in part, from any liability created by this Chapter except as herein provided.”


source: Caselaw Access Project

author: STOULIG, Judge.

license: Public Domain

text:
    Mr. and Mrs. John H. MUSSER, IV v. William C. COPPING et al.
    No. 7101.
    Court of Appeal of Louisiana, Fourth Circuit.
    Aug. 20, 1975.

      Koerner & Babst, Lawrence F. Babst, Jr., New Orleans, for plaintiffs-appellants.
    Lemle, Kelleher, Kohlmeyer & Matthews, Paul B. Deal, New Orleans, for Richard C. French, Jr., defendant-appellee.
    Wolfson & Wolfson, Beryl E. Wolfson, New Orleans, for William C. Copping, Hanover Ins. Co. and Richard C. French, defendants-appellees.
    Before SAMUEL, STOULIG and BOU-TALL, JJ.
   STOULIG, Judge.

Defendants-appellees moved to dismiss plaintiffs-appellants’ appeal, alleging that the costs and fees required under C.C.P. art. 2126 were not timely paid. We deny the motion.

The chronological sequence of the trial court proceedings involved in the motion are:

February 25, 1975 - Order signed granting devolutive appeal to plaintiffs returnable April 10, 1975. Appeal perfected same day by posting prescribed bond of $250.
April 10, 1975 - Filing of application by clerk of court for an extension of the return date stating as the reason therefor “additional time is necessary to collect courts costs.” Order signed extending the return date for the filing of the transcript in the Court of Appeal to June 9, 1975.
May 25, 1975 - Transcript filed in the Court of Appeal.
July 7 and 8, 1975 - Motions to dismiss were filed by the respective defendants.

Although all costs were paid and the record was lodged before the extended return date of June 9, 1975, appellees claim the ex parte order obtained by the clerk of the district court extending the return date from April 10, 1975 was invalid. Movers urge that under C.C.P. art. 2125 an extension may only be granted for “sufficient cause” and the failure to pay costs of the appeal timely is not a sufficient cause.

In opposition to this motion, plaintiffs filed an affidavit of the appeals clerk responsible for preparing this record. It establishes plaintiffs could not pay costs within three days of the original return date of April 10, because at that time the transcript was incomplete and the costs could not be determined and assessed. It further states plaintiffs’ counsel inquired about costs on April 3 and was told at that time the transcript would probably not be completed by the return date. Though it developed that the transcript was completed later in the afternoon of April 10 after an extension had been granted, the record was not lodged with the clerk of the Court of Appeal until May 27.

Thus it was impossible for plaintiffs to comply with the requirements of C.C.P. art. 2126 and pay all costs at least three days before the original return date expired on April 10.

An appeal may only be dismissed if an irregularity, error or a defect in perfecting an appeal is imputable to the appellant. C.C.P. art. 2161. In this case the deputy clerk of court in charge of appeals knew an extension was necessary in order to complete the transcript of the record for the appellate court and, in applying for one, she fulfilled the duty imposed on her by law. C.C.P. art. 2127. See Edwards v. Edwards, 268 So.2d 682 (La.App. 1st Cir. 1972).

Applying the reasoning of the Edwards case and the mandatory provisions of C.C.P. art. 2126 to the facts of the instant matter, the inescapable conclusion is that defendants’ contention is without merit. The failure of plaintiffs to pay the necessary transcript costs and filing fee before the expiration of the initial return date of April 10 was not due to a lack of diligence on the part of his counsel but to the inability of the clerk to ascertain the amount of these charges. The obligation then devolved upon the clerk of court to timely obtain an extension in order to determine the cost of the transcript and to afford the appellants the opportunity to comply with the mandatory provisions of C.C.P. art. 2126 that these charges be paid not later than three days prior to the return day or extended return day. This is precisely what the clerk did in the instant case. Though the reason for the extension may have been stated as requiring additional time to collect the court cost, based upon the affidavit of the deputy clerk of the civil district court submitted in support of plaintiffs’ opposition to the motion to dismiss, the additional time was in fact necessary or required to complete the transcript of the record to be lodged in the Court of Appeal. The affidavit further recites that for the same reason the clerk of court was unable to advise counsel for plaintiffs on April 10, 1975, the amount of the charges for preparing the record for appeal. The clerk of court in obtaining the extension only fulfilled the obligations imposed upon him under C.C.P. arts. 2125 and 2127. Plaintiffs complied with the mandatory requirements of C.C.P. art. 2126 by paying these costs and fees not later than three days prior to the extended return date of June 9,1975.

In view of our denial of the motion, any consideration of the issue raised by plaintiffs that the motion to dismiss was not timely filed within the three-day period prescribed by C.C.P. art. 2161 would be purely academic.

For these reasons the motion to dismiss is denied.

Motion denied.


author: LOTTINGER, Judge.

text:
    Noelie Matulich McCARSTLE v. Louis Henry McCARSTLE.
    No. 10432.
    Court of Appeal of Louisiana, First Circuit.
    Aug. 26, 1975.
    Writ Refused Oct. 22, 1975.

      William H. Ledbetter, Jr., Alexandria, for appellant.
    Diane A. Jenkins and Robert L. Kleinpe-ter, Baton Rouge, for appellee.
    Before LOTTINGER, COVINGTON and BAILES, JJ.
   LOTTINGER, Judge.

This matter is before us at this time as a result of a show cause order issued by this Court ex proprio motu questioning whether the appellate bond filed herein was filed timely.

This case involves a judgment awarding custody of a minor child to defendant-ap-pellee. The judgment was read and signed in open court on March 25, 1975. An application for a new trial was not filed, but plaintiff entered an appeal ■ on April 2, 1975. Bond' fixed in the amount of $700.00 was filed on May 7, 1975.

C.C.P. Art. 3943 provides:

An appeal from a judgment awarding custody of a person or alimony can be taken only within the delay provided in Article 3942. Such an appeal shall not suspend the execution of the judgment in so far as the judgment relates to custody or alimony.

C.C.P. Art. 3942 provides:

An appeal from a judgment granting or refusing an annulment of marriage, a separation from bed and board, or a divorce can be taken only within thirty days from the applicable date provided in Article 2087 (l)-(3).

C.C.P. Art. 2087 provides in part:

Except as otherwise provided in this article or by other law, an appeal which does not suspend the effect or the execution of an appealable order or judgment may be taken, and the security therefor furnished, within ninety days of:
(1) The expiration of the delay for applying for a new trial, as provided by Article 1974, if no application has been filed timely;
******
(3) The date of the mailing of notice of the court’s refusal to grant a timely application for a new trial, if the applicant is entitled to such notice under Article 1914.

C.C.P. Art. 1974 provides:

The delay for applying for a new trial shall he seven days, exclusive of legal holidays. Except as otherwise provided in the second paragraph hereof, this delay commences to run on the day after the judgment was signed.
When notice of the judgment is required .under Article 1913, the delay for applying for a new trial commences to run on the day after the clerk has mailed, or the sheriff has served, the notice of judgment as required by Article 1913.

Plaintiff-appellant contends that the delay for application for a new trial begins the day after the parties are notified of judgment. However, in the instant matter, no notice of judgment was required because the case was not taken under advisement at the conclusion of the trial but was assigned for argument after which the judge assigned reasons for judgment. Furthermore, appellant did not make a request of record for notice of the date when the judgment was signed. Therefore, notice of judgment was not required under the provisions of C.C.P. Art. 1913 which provides in part:

If, at the conclusion of a trial a case is not taken under advisement but the court does not sign a judgment at the time, a party may make a request of record for notice of the date when the judgment was signed; and when such a request is made, the clerk shall mail such notice to the party requesting it or to his counsel of record.
Except as otherwise provided in the first three paragraphs of this article, notice of the signing of a final judgment is not required.

In accordance with C.C.P. Art. 1974, plaintiff-appellant’s time to apply for a new trial began to run on the day after the judgment was signed on March 25, 1975, namely, March 26, 1975. March 28th was a legal holiday, Good Friday, as were Stur-day and Sunday, and April 4th completed the seventh day provided by C.C.P. Art. 1974. Since April has thirty days, May 4, 1975; was the 30th day provided by C.C.P. Art. 3942 and the last day for timely filing the appeal bond which plaintiff-appellant did not file until May 7, 1975.

C.C.P. Art. 2088 provides in part that the jurisdiction of the appellate court attaches, “upon the timely filing of the appeal bond.” Since the failure to file an appeal bond is jurisdictional and the appellate court does not acquire jurisdiction unless the bond is filed timely, this court lacks jurisdiction in this matter.

For the reasons herein assigned, this appeal is hereby dismissed at appellant’s costs.

Appeal dismissed.


author: PRICE, Judge.

text:
    Shady R. WALL, Plaintiff-Appellee, v. The DEMOCRATIC REPRESENTATIVE DISTRICT COMMITTEE FOR DISTRICT 15, State of Louisiana, et al., Defendants-Appellants.
    Nos. 12785, 12786.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 28, 1975.

      Robert C. Downing, Monroe, for defendants-appellants.
    Robert P. McLeod, Monroe, for Shady R. Wall.
    Hayes, Harkey, Smith & Cascio by Louis D. Smith, Monroe, for Henry and Marionneaux.
    Before BOLIN, PRICE and MARVIN, JJ.
   PRICE, Judge.

This is an appeal from the judgment rendered by the district court in two consolidated suits brought by plaintiff objecting to the candidacy of the defendants in a forthcoming election. In compliance with the provisions of R.S. 18:364 requiring disposition of cases of this type within twenty-four hours after submission, we orally affirmed the judgment of the trial court declaring the defendants ineligible and disqualified to be a candidate in the November 1, 1975 primary election for the House of Representatives for District 15.

In written reasons for judgment the trial judge has concisely stated the issues and factual background giving rise to these actions. As we agree with the reasons advanced by him for his decision, we find it appropriate under the circumstances to adopt the substantial portion of his reasons as our opinion in this matter, as follows :

“These two suits have been consolidated for trial because the basic issue of law is the same and the facts are not dissimilar.

“Shady Wall, a qualified elector and a candidate for the office of state representative from District IS of Ouachita Parish has filed an objection to the candidacy of Herbert E. Henry and Ralph H. Marri-oneaux on the basis that they failed to comply with the provisions of R.S. 18:391 in that they did not file a written notification of their intention to become a candidate accompanied by a declaration under oath that to the best of their knowledge and belief they are duly qualified electors under the Constitution and laws of this state.

“Made parties defendant are Herbert E. Henry, Ralph H. Marrioneaux and the Democratic Representative District Committee for District IS.

“The two individual defendants filed exceptions of no right of action urging that Mr. Wall was without authority to object to the candidacy of the two defendants on a question of procedure, as is involved here. While agreeing that he could validly object on questions of substance, they suggest that the only one entitled to object to procedural matters is the District Committee.

“R.S. 18:396 provides in part:

‘Any person who has filed his application to become a candidate or any other qualified elector may object to the candidacy of any other person. The objection . shall be in writing and by petition and shall contain, in detail, the reasons for the objection . . . ’

“It was established that the plaintiff is a qualified elector and also has filed his application to become a candidate. There is no other qualification required by the statute nor is there any mention of any specific grounds which must be alleged.

“While no case exactly in point was cited to the court, there are at least two cases in which the courts have been required to rule on objections to candidates: Rousseau v. Democratic Parish Executive Committee for Parish of St. Martin, 164 So. 175 (1st Cir. 1935), Writ Refused 165 So. 166 and Hardy v. Jackson, 253 So.2d 647 (2nd Cir. 1971).

“In the former case the objection was based on procedural grounds and in the latter on substantive grounds. In neither case was the plaintiff’s right to file the suit challenged and the court did not of its own motion consider the question. The challenges were accepted without comment.

“Since neither the statute which has been on the books for over forty years nor the jurisprudence has limited the reasons to be urged by certain objectors, the court does not consider that it has the authority to impose such a limitation as is herein urged.

“The exception in each case is, therefore, overruled.

“It is noted that the Democratic Committee, also named a defendant in each suit, did not file such an exception.

“The main issue in each case is the validity of the ‘declaration under oath’ which each candidate is required by R.S. 18:391 to file.

“As first enacted in 1930 the statute setting forth the documents which each candidate must file with the Democratic Committee did not require the ‘declaration’ to be ‘under oath’, but in 1932 the legislature added these words and they have been with us continuously to date.

“Unfortunately there is no statutory authority dealing with the formality which must be observed in order to constitute a declaration under oath.

“In 1935 the First Circuit Court of Appeal considered the first case brought under this section, the Rousseau case, cited supra. There the objection was levelled at the fact that although the candidate knew what he was doing and was mindful of the seriousness of the occasion, the notary public before whom he had signed the declaration hadn’t made him take oath. Rousseau had merely signed the paper attached to the notification without having been actually sworn.

“The court quoted from Ruling Case Law with approval:

‘But while a large liberty is thus given to the form of the oath, some form remains essential. Something must be present to distinguish between the oath and the bare assertion. An act must be done and clothed in such form as to characterize and evidence it. This is so for the double reason that only by some unequivocal form could the sworn be distinguished from the unsworn averment and the sanctions of religion add this solemn and binding force to the act. Hence to make a valid oath, there must be in some form in the presence of an officer authorized to administer it, an unequivocal and present act by which an affiant consciously takes upon himself the obligation of an oath.’ (Emphasis supplied)

“The court noted that notaries public have the right to administer oaths. And it found that in signing the declaration before the notary he intended to take a formal oath and did so within the purview of the law. The formality of actually being sworn by the notary was held not important.

“The Supreme Court in declining to review the case said:

‘If a strict interpretation is placed upon the language of the Primary Election Law (Act No. 97 of 1922, as amended), and the notice of intention to become a candidate and the affidavit accompanying the notice are considered in that light, the candidate has not properly qualified. But, in previous decisions of this court, we have repeatedly said that, since the right of the people to choose their public officials is indirectly affected, and this being the fundamental principle involved in all elections, a liberal construction should be placed upon the provisions of the statute.
‘The Court of Appeal treated the case in a liberal manner, which was in accordance with the announced policy of this court. Therefore, its judgment is correct . . . . ’

“In the instant cases there was no notary public present when these defendants executed their declarations. Each took his papers to J. R. Preddy, chairman of the committee, and in his presence executed their signatures, although each knew that on the face of the papers the signature of a notary was required. In fact, Henry a few years back had been a notary himself.

“In the case of Ralph Marrioneaux, Preddy after reminding him of the necessity of his signature being notarized made a telephone call requesting that a notary be sent to his office for that purpose. Although Preddy testified he telephoned in the presence of Marrioneaux, Marrioneaux was unable to remember the substance of the phone conversation.

“Marrioneaux, however, left before the notary arrived and never saw the notary who signed his papers.

“Neither Preddy nor Henry made an attempt to get a notary for him while they were together. Henry accepted the assurance of Preddy that he would handle the papers and there was nothing else for him to do.

“Counsel for defendants urge upon the court that public policy dictates that election laws should be construed so as to foster representation of political parties to the end that the electorate may review the widest possible choice of candidates, citing Rich v. Martin, 259 So.2d 113 (1st Cir. 1971). This court is in complete accord with that principle enunciated. Therefore, they urge that the expression ‘in the presence of an officer authorized to administer’ oaths, does not limit the officer to a notary public.

“In support of this contention is cited the case of Planche—Locke Securities, Inc. v. Johnson, 197 So.2d 178 (3rd Cir., 1966) in which an appraiser executed his appraisal under oath ‘before a deputy sheriff who was not a notary public. The statute — R. S. 13:4365 — required that ‘an appraiser shall take an oath to make a true and just appraisement of the property’. Nevertheless, the court upheld the validity of the appraisal saying:

‘We are convinced that both of them were aware of their acts in affixing their signatures to the form of the appraisal and since the document which they signed recited that it was “Sworn to” before the deputy sheriff, we think they clearly understood that in affixing their signatures to the forms of appraisal they were taking the oath required by LSA-R.S. 13.4365.’

“Thus, it is urged that the presence of a notary public is not sacrosanct, but that the chairman of the committee could be recognized, by the court just as the deputy sheriff was in the Plauche-Locke case.

“The Supreme Court of Louisiana, however, in the recent case of State v. Snyder, 304 So.2d 334 (1974), cited the Rousseau case with approval, saying:

‘While this court has never passed upon the formality required to constitute a declaration under oath, it has been generally held that to constitute a valid oath, there must be, in the presence of a person authorized to administer it, an unequivocal act by which the affiant consciously takes on himself the obligation of an oath. It is sufficient that both the person swearing and the officer administering the oath understand that what is done is proper for the administering of the oath and all that is necessary to complete the act of swearing. We agree with this generally accepted rule of law.’ (Emphasis supplied)

“In that case the issue was the form of oath taken before a notary public. The court recognized the necessity of a notary public or other official authorized to administer oaths.

“No authority has been cited to this court recognizing the chairman of a political committee as an official authorized to administer oaths in this instance.

“Assuming arguendo that the court should recognize the chairman of the committee as an officer before whom an oath can be taken, in our cases the chairman did not act in that capacity. Mr. Preddy waited until after the notary had arrived and signed the papers before he affixed his signature to the certification. In the case of Marrioneaux he did not sign until 4:55 P.M. and he was very concerned because 5:00 P.M. was the deadline for qualifying.

“Since the Snyder decision the legislature has reenacted the Primary Election Statute (Act 1 of 1975). The pertinent section is now R.S. 18:391. Despite the cases cited above (and the Legislature is presumed to be aware of them) no effort was made to make any clarification. The court must, therefore, conclude that the legislature was satisfied with the previous expression of the courts.

“See also Neely v. State of Louisiana, Department of Public Safety, 308 So.2d 880 (2nd Cir. 1975).

“Defendants next urge this court to apply the doctrine of ‘contemporary construction’ of statutes as enunciated in several cases, the latest of which is Thompson v. East Baton Rouge Parish School Board, 303 So.2d 855 (1st Cir. 1974): p. 857.

‘The effect of the doctrine .is that where administrative departments have interpreted a law over a period of time, the courts (because of injury that would result to those who have followed the administrative interpretation) will not disturb that interpretation even though they might disagree. Delta Life Ins. Co. v. Martin, 59 So.2d 465 (La.App. 1st Cir. 1952).’

“Also as stated in Danna v. Commissioner of Insurance, 228 So.2d 708, 711 (1st Cir. 1969, Writ Refused).

‘The rule of contemporaneous construction is recognized and applied in this state. The effect of the rule is that when the meaning of a statute is in doubt, the interpretation of those charged with its enforcement will be given substantial weight. Esso Standard Oil Co. v. Crescent River Port Pilots Ass’n., 235 La. 937, 106 So.2d 316.’

“In this respect there was testimony that in the past at least two District Committees in Ouachita Parish including this one had permitted candidates to sign the declaration outside the presence of a notary public with the notary coming in later to notarize the signature. This however, did not always take place.

“Thus it is urged that the candidates were justified in relying upon the chairman to get their papers notarized after they had left.

“The court does not believe that that doctrine is applicable here, but, if so, the facts are such that it should not be applied.

“In the first place, the forms which were used were supplied by the Secretary of State, an officer who has direct supervision over our election procedures. This form under the line designated for the signature of the candidate recited: ‘Sworn to and subscribed before me’ emphasis supplied) followed by a line designated for the signature of the notary.

“Secondly, there was a court decision (Rousseau) advising that in such instances the oath had to be made in the presence of an officer authorized to administer oaths.

“The practice of the committee, was, therefore, to disregard these instructions and place its own procedure into effect when candidates showed up without having their papers previously notarized. Thereby, candidates acting in complete good faith were led to leave their papers with the committee chairman for later notarization.

“There was no evidence that the candidates were informed of this practice or were relying on this so-called practice. They merely accepted the opportunity afforded them by the chairman.

“On the other hand, there were candidates in the past as well as those present who arrived with their papers properly notarized.

“Thus the committee was applying a dual standard.

“It is unfortunate that because of the failure in these cases to have the declaration properly notarized the public is being deprived of an opportunity to select among several worthy candidates, but the court feels that it is bound by the words of the statute and the decisions cited above.”

For the foregoing reasons we reiterate our previous oral decree that the judgments appealed from are affirmed at appellants’ cost.


author: HOLMES, Judge.

text:
    Charles A. BOSWELL, as Commissioner of Revenue of The State of Alabama, v. ABEX CORPORATION, a corporation.
    Civ. 475.
    Court of Civil Appeals of Alabama.
    May 28, 1975.
    Rehearing Denied June 11, 1975.
    William J. Baxley, Atty. Gen., Willard W. Livingston, Counsel, Dept, of Revenue, and Asst. Atty. Gen., B. Frank Loeb, Asst. Counsel, Dept, of Revenue, and Asst. Atty. Gen., for appellant.
    Steiner, Crum & Baker, M. R. Nachman, Jr., Montgomery, for appellee.
   HOLMES, Judge.

The Circuit Court of Montgomery County issued an alternative writ of mandamus to the Commissioner of Revenue for the State of Alabama ordering the commissioner to refund to appellee-taxpayer $8,562.00. From this order, the commissioner has taken this appeal.

The learned and distinguished trial judge, after a hearing ore tenus, made a detailed finding of fact and conclusion of law.

This court has carefully reviewed the controlling authorities as they apply to the instant appeal.

The judgment of the trial court is correct and cannot be improved upon and we therefore, as set out below, adopt the pertinent part of his order as our own and affirm the ruling of the lower court.

“It is undisputed between the parties that the petition for refund of use taxes filed on February 20, 1974, by Abex with the State Department of Revenue (hereinafter ‘Department’) was in regular form as required by Title 51, Section 913, Alabama Code, and sought refund of use taxes allegedly paid under mistake of law or fact for the period July 1, 1970 through July 30, 1973, in the total amount of $8,562.00. Respondent has not questioned the appropriateness of this mandamus proceeding to review the denial of the petition for refund of use taxes in this amount. In short, the parties do not question that if Abex is correct in its substantive contention that the' Alabama use tax does not attach to the transactions involved in these tax payments, then it is entitled to an order from this Court directing a refund of use taxes of $8,562.00.

“With these threshold matters out of the way, the Court proceeds to findings of fact and conclusions of law based upon the oral testimony and documentary and physical evidence. Upon such competent testimony, the Court finds as follows:

“FINDINGS

“The testimony is literally without dispute. Abex at all relevant times was engaged in the State of Alabama in the production of steel car wheels for sale to railroad companies. The process is described in detail in the oral testimony, and is illustrated by the photographs. Abex paid use taxes for the period involved — taxes which it now claims were mistakenly and erroneously paid — on the purchase by Abex of certain graphite or carbon electrodes. These electrodes perform a dual purpose— they supply heat for the furnace in which metal is melted as part of the process of producing wheels for railroad cars; and the electrodes supply carbon which enters into and becomes an ingredient or component part of the steel wheels manufactured by Abex. It is without dispute that the carbon contained in the electrodes united with the other metals, that carbon is required by the Association of American Railroads specifications in a certain degree in railroad wheels; that this carbon is required to improve the quality of the wheels; and that the electrodes furnish this carbon, at least in part, and are consumed in the manufacturing process.

“The gist of Abex’s position before the Department and here is that its purchase of the electrodes was at wholesale under the following definition from the applicable portion of Title 51, Section 787(d), Alabama Code:

“ ‘The term “wholesale sale” or “sale at wholesale” means any one of the following : * * * a sale of tangible personal property or products (including iron ore) to a manufacturer or compounder which enters (enter) into and becomes (become) an ingredient or component part of the tangible personal property or products which such manufacturer or compounder manufactures or compounds for sale, and the furnished container and label thereof . . . ’

Since the use tax, by its terms, is imposed only on the ' storage, use or other consumption of tangible personal property ‘purchased at retail’ Title 51, Section 788(b) (emphasis supplied), the purchases of carbon electrodes, at wholesale sale rather than retail sale, were not subject to tax.

“The Department denied the refund on the basis that the carbon electrodes were machine parts, and that, even though carbon from the electrodes entered into and become an ingredient or component part of the manufactured steel wheels, their purchase was, nevertheless, also subject to tax.

“In 1968 Abex applied for and secured a refund of the same Alabama use taxes on the same transactions because Abex and the Department found controlling the decision in State v. U. S. Steel, 281 Ala. 553, 206 So.2d 358. That case held that oxygen purchased by U. S. Steel, less than 1 percent of which became an ingredient part of the finished steel, was a wholesale sale and thus not subject to. tax. The court, moreover, gave considerable weight to the departmental regulations, particularly Rule W27-171 which read then, and reads now, in pertinent part as follows:

“ ‘Any material purchased by a manufacturer which he intends to become a part thereof, even to the extent of %oo of 1% or less, is purchased at wholesale, tax free.’

“The U. S. Steel case relied on the Supreme Court’s earlier decision in State v. Southern Kraft, 243 Ala. 223, 8 So.2d 886 that the tax statute defined wholesale sales and retail sales without regard to the quantity of the tangible personal property which entered into or became an ingredient or component part of the finished product. Indeed, 3ioo of 1 percent was precisely that part of the chemical purchased in the Southern Kraft case which became in ingredient of the finished product. It is obvious that this figure in W27-171 was picked up from the Southern Kraft case.

“Thus, as long ago as 1942 the Supreme Court of Alabama held that when the manufacture of a product requires the purchase of tangible personal property, any portion of which becomes an ingredient or component of the manufactured product, this purchase is a wholesale one and not a retail one regardless of the dominant purpose of the property so purchased. The statute; the judicial decisions; the departmental regulation; and these underlying facts remain unchanged.

“Two important rules of statutory construction must be applied in this case. One is that the coverage and scope of taxing statutes are strictly. construed against the tax authority and in favor of the taxpayer. State v. Helburn Co., 269 Ala. 164, 11 [sic] So.2d 912; State v. Calumett and Hecla, Inc., 281 Ala. 549, 552, 206 So.2d 354. Another is that administrative construction which is fair and reasonable and of long standing is given controlling weight by courts which are called upon to construe the statutes; and courts are not disposed to change this construction simply because the state officials have changed their minds. Only legislatures have this power. State v. Southern Elec. Gen. Co., 274 Ala. 668, 151 So.2d 216; Hamm v. Consolidated [sic] Gin Co., 276 Ala. 611, 614-615, 165 So.2d 392; Haden v. McCarty, 275 Ala. 76, 152 So.2d 141.

“There is no question that the 1968 petition for refund was based upon ‘the recent Alabama Supreme Court ruling on oxygen left in the final steel product in minute quantities.’ Abex felt ‘that these electrodes and nipples which exist in our finished product in the form of carbon are in larger quantities than was present in the oxygen case, and that we are entitled to a refund of taxes paid for the last three years on these items.’ This petition was granted.

“There is no question under the undisputed testimony that the Abex operations have continued to be the same and that the function and ultimate destination of the electrodes have been the same through the years.

“As shown by its letter of denial, the case relied upon as the basis for the Department’s change of mind is State v. Newbury Mfg. Co., 265 Ala. 600, 93 So.2d 400. That case is clearly inapplicable. No part of the tangible personal propety there became an ingredient or component part of a manufactured product. Moreover, the Supreme Court in the Newbury case took great pains to explain that while a determination of the term ‘machines, attachments and replacements’ involved a determination of whether the ‘article in question performs an integral function in the procedure by which the tangible personal property is produced,’ if a product was used as a fuel or lubricant it did not come within the definition regardless of its importance. 265 Ala. at 603, 93 So.2d at 402. The undisputed testimony in the case at bar is that the carbon electrode performs a function akin to that of fuel such as coke, gas or petroleum fuel. So even under Newbu-ry the electrode would not be held to constitute a machine part. Actually this analysis is really irrelevant since the crucial test is whether a part of the carbon electrode becomes an ingredient or component part of the manufactured product, and clearly and without dispute it does.

“Abex purchased the carbon electrodes for the dual purpose of providing heat for its furnaces and carbon as an ingredient or component part of the finished steel railroad wheels which it produced. The Alabama Legislature in Section 787(d), defined those sales transactions as wholesale ones because the carbon became an ingredient or component part of the finished product. The use tax is levied only on retail-sales, and hence this taxpayer is entitled to the refund it sought. The Department should be required to adhere to its 1969 ruling based on State v. U. S. Steel, 281 Ala. 553, 206 So.2d 258 [358], in the absence of any change in legislation, court decision, or underlying facts.”

This case is due to be and is, therefore, affirmed.

Affirmed.

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


author: MERRILL, Justice.

text:
    In re Charles A. BOSWELL, etc. v. ABEX CORPORATION, a corp. Ex parte Charles A. Boswell, as Commissioner of Revenue of The State of Alabama.
    SC 1345.
    Supreme Court of Alabama.
    July 17, 1975.
    William J. Baxley, Atty. Gen., Willard W. Livingston, Counsel,. Dept, of Revenue, and Asst. Atty. Gen., B. Frank Loeb, Asst. Counsel, Dept, of Revenue, and Asst. Atty. Gen., for petitioner.
    Steiner, Crum & Baker and M. R. Nach-man, Jr., Montgomery, opposed.
   MERRILL, Justice.

Petition of Charles A. Boswell for cer-tiorari to the Court of Civil Appeals to review and revise the judgment and decision of that court in Boswell, as Commissioner of Revenue of the State of Alabama v. Abex Corporation, 55 Ala.App. 477, 317 So.2d 314.

Writ denied.

The Circuit Court of Montgomery County issued an alternative writ of mandamus to the Commissioner of Revenue ordering the Commissioner to refund $8,562.00 to the taxpayer. The Commissioner appealed and the Court of Civil Appeals affirmed.

In denying the writ in this case, we do not approve a statement made in the trial court’s opinion and adopted by the Court of Civil Appeals. The statement reads:

“ * * * Another [rule of statutory construction] is that administrative construction which is fair and reasonable and of long standing is given controlling weight by courts which are called upon to construe the statutes; and courts are not disposed to change this construction simply because the state officials have changed their minds. Only legislatures have this power. State v. Southern Elec. Gen. Co., 274 Ala. 668, 151 So.2d 216; Hamm v. Consolidated [sic] Gin Co., 276 Ala. 611, 614-615, 165 So.2d 392; Haden v. McCarty, 275 Ala. 76, 152 So.2d 141.”

In Southern Electric Generating Co., supra, the administrative construction had been the same for 25 years and in Haden, supra, for 22 years. This court approved the following in Hamm, supra:

“The State, in insisting that the administrative construction has had such effect, relies on the statement appearing in the last paragraph of the opinion in State v. Southern Electric Generating Co., 274 Ala. 668, 671, 151 So.2d 216, to the effect that the State is ‘bound by the administrative construction of twenty-five' years.’ This expression was considered in the recent case of International Union of Operating Engineers, Local Union No. 321 (AFL-CIO) v. The Water Works Board of the City of Birmingham, 276 Ala. 462, 163 So.2d 619, where it was said, viz:
‘ * * * such administrative rulings having been in force and effect for many years, are highly persuasive authority of the correctness of the rule. State v. Southern Electric Generating Co., 274 Ala. 668, 151 So.2d 216; Haden v. McCarty, 275 Ala. 76, 152 So.2d 141. Such administrative construction is neither binding on the State nor its agencies nor on the court. Therefore, the use of the word “bound” in the last paragraph of the opinion in State v. Southern Electric Generating Co., supra, was not intended to impinge upon the longstanding rule hereinabove adverted to. A clearer statement of what was there intended is that where an administrative construction by proper officials is fair and reasonable and has been followed for the prescriptive period of twenty years or longer, the courts are not disposed to alter that construction merely because the highest officials may have changed their minds about the matter under consideration.” (Emphasis supplied.)

The correct rule is that an administrative interpretation of the governmental department for a number of years is entitled to favorable consideration by the courts; but this rule of construction- is to be laid aside where it seems reasonably certain that the administrator’s interpretation has been erroneous and that a different construction is required by the language of the statute. State v. Wertheimer Bag Co., 253 Ala. 124, 43 So.2d 824; Drennan Motor Co. v. State, 279 Ala. 383, 185 So.2d 405; East Brewton Materials, Inc. v. State Department of Revenue, 45 Ala.App. 584, 233 So.2d 751.

Taxpayers have no vested right to rely upon an erroneous interpretation of the statute exempting them from taxation, and under Section 100 of the Constitution of Alabama of 1901, the taxing authority has no discretion in a matter of this kind. The reason for this rule is that in the assessment and collection of taxes, the State is acting in its governmental capacity and it cannot be estopped with reference to the enforcement of taxes, even when the taxpayer was advised that it was not responsible for a tax. Were this not the rule the taxing officials could waive most of the State’s revenue. State v. Maddox Tractor & Equipment Co., 260 Ala. 136, 69 So.2d 426; Crutcher Dental Supply Co. v. Rabren, 286 Ala. 686, 246 So.2d 415.

The judgment of the Court of Appeals is correctly bottomed on the opinion in State v. United States Steel Corp., 281 Ala. 553, 206 So.2d 358.

Opinion corrected and writ denied.

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


author: BRADLEY, Judge.

text:
    STATE of Alabama v. HERTZ SKYCENTER, INC.
    Civ. 477.
    Court of Civil Appeals of Alabama.
    Jan. 8, 1975.
    Rehearing- Denied Feb. 19, 1975.

      William J. Baxley, Atty. Gen., Willard W. Livingston, Counsel, Dept, of Revenue, and Asst. Atty. Gen., Philip C. Davis, Asst. Counsel, Dept, of Revenue and Asst. Atty. Gen., for the State.
    Thomas B. Hill, Jr., and Neal H. Acker, Montgomery, for appellee.
   BRADLEY, Judge.

On March 30, 1972 the State Revenue Department, appellant (hereinafter referred to as State), entered a final sales tax assessment against Hertz Skycenter, Inc., appellee (hereinafter referred to as Hertz) in the amount of $14,852.98. Hertz appealed this assessment to the Circuit Court of Montgomery County where a hearing was held and a decision rendered absolving Hertz from any liability for the payment of the sales taxes in question. The State then appealed that judgment to this court.

The pleadings and evidence filed in the trial court show that the State audited the books of Hertz for the period of October 1, 1968 through September 30, 1971 and assessed it with additional sales taxes in the amount of $13,729.49 and interest in the amount of $1,123.49 for sales of meals, snacks, liquids and other foods to United Airlines.

United and Hertz had an agreement whereby Hertz would furnish various food items for United’s aircraft departing the Huntsville-Madison County airport.

According to the agreed statement of facts filed in this case, the sales of these food items to United by Hertz was for the consumption of United’s passengers. The method used in charging for the meal furnished to and consumed by United’s passengers was in accordance with Civil Aeronautics Board regulations. Those regula-ions required that the price of the meal be included in the price of the ticket.

The stipulated facts further show that if a passenger does not receive a meal on a flight designated as a “meal flight” that passenger becomes entitled to compensation for the lost meal. Such compensation can be in the form of a “chit” which authorizes the receipt of a comparable meal at the airport where the “chit” is given or in cash.

State contends that the sale of the food items in question by Hertz to United was a retail sale within the meaning of Title 51, Section 786(2), Code of Alabama 1940, as Recompiled 1958, and therefore subject to sales tax. Sections 786(2) (i) and (j) provide in pertinent part as follows:

“(i) The term ‘wholesale sale’ or ‘sale at wholesale’ means any one of the following : a sale of tangible personal property by wholesaler to licensed retail merchants, jobbers, dealers, or other wholesalers for resale and does not include a sale by wholesalers to users or consumers, not for resale; . . ..”
“(j) The term ‘sale at retail’ or ‘retail sale’ shall mean all sales of tangible personal property except those above defined as wholesale sales. . . .”

In support of this contention, the State cites to us the recent Illinois Supreme Court case, American Airlines, Inc. et al. v. The Department of Revenue, 58 Ill.2d 251, 319 N.E.2d 28, decided on September 17, 1974.

In the cited case, American Airlines had a catering agreement with Hot Shoppes, Inc. whereby meals were to be furnished to American Airlines to be served to its passengers. The Illinois Department of Revenue assessed sales taxes for the sale of these food items and the Illinois Supreme Court upheld this assessment.

The Illinois sales tax statute (Ill.Rev. Stat.1963, Ch. 120, par. 440 et seq.) provided that a tax was imposed on persons selling tangible personal property at retail. A “retail sale” was defined as a transfer of ownership to tangible personal property for use or consumption but not for resale for a valuable consideration.

The Illinois Department of Revenue had promulgated the following rule:

“(h) effective November 1, 1963, sellers of food and beverages, delivered in Illinois to airlines for use in serving passengers and crews on aircraft without a separate charge for the food or beverages being made by the airline, regardless of whether the airline may serve the food and beverages in Illinois or outside Illinois.” Department of Revenue, Rules and Regulations, Rule 7(1) (h).

The evidence which formed the basis of the decision in the trial court and the supreme court showed that there was no separate charge for the meals served American’s passengers; 'meal service was included in the price of the ticket; the same fare is charged on flights between the same points even when food is not served; should meals not be served because of inflight problems, no refund could be obtained ; there was no reduction in the price of a ticket if the passenger did not want a meal; and a passenger who did not eat a meal on the plane could obtain a voucher redeemable at the airport for a comparable meal, but he would not be entitled to a refund if he did not desire a voucher.

The Illinois court concluded that the sale of the food to American by Hot Shoppes was not a sale for resale to its passengers within the meaning of its sales tax law but was a sale to American for its use and consumption. That court further observed that the evidence showed that the meals were not separately considered or charged for but were treated as an operating expense. And, the court said that the Illinois Revenue Department regulation merely recognized that unless there was a separate charge for the meal it had to be regarded as an operating cost of the business as decided in a previous case.

Hertz argues in the case at bar that the sales by it to United were wholesale sales within the meaning of Section 786(2) (i), supra, because the food items purchased from it were to be resold to United’s passengers for their consumption and the price of the food consumed was to be included in the price of the air fare paid by the passenger. Hertz gives us two cases from other jurisdictions to support its position. The first is Undercofler v. Eastern Air Lines, Inc., 221 Ga. 824, 147 S.E.2d 436, and the second is United Air Lines, Inc. v. Department of Treasury, Revenue Division, Cir.Ct. of Ingham, Mich., Law Order Book 131, p. 365, dated Aug. 1, 1972; Leave to Appeal Refused by Mich. Ct. of Appeals on Dec. 26, 1972; Application for Leave to Appeal Denied by Mich. Sup.Ct. on March 29, 1973; Application for Reconsideration Denied by Mich.Sup. Ct. on June 8, 1973.

In Undercofler, supra, Eastern Airlines had been assessed with sales taxes for meals served to its passengers by the State of Georgia. It was shown that Eastern purchased prepared meals, had them placed on board its planes just prior to departure and they were not served to the passengers until the plane had passed the Georgia state line. Eastern made no separate charge for the meal, but included the cost of the meal in the price of the ticket.

The Georgia Supreme Court said that Eastern’s purchase of the meals from its supplier was not a taxable event, for the statute did not impose a tax on the purchase of the property for resale. However, the sale of the food by Eastern to its passengers was a taxable event. The sale occurred when the passenger purchased his flight ticket because the price of the meal was included in the cost of the ticket. The location of the airplane at the time the meal was served is immaterial for the sale occurred when the ticket was purchased and the purchaser merely delayed delivery until an appropriate time for its consumption.

The court further observed that the inclusion of the cost of the meal in the price of the ticket did not prevent the imposition of a tax for it must be assumed that the price of the meal is a known quantity and can be separated from the charge for transportation.

The court pointed out that a “retail sale” or “sale at retail” means a sale of tangible personal property for any purpose other than resale.

In the Michigan case United Air Lines had been assessed by the State of Michigan with use taxes for purchases of food for consumption by its passengers. The State Board of Tax Appeals held that the food purchases were for resale and said that sales taxes were due from United rather than use taxes. In its finding of fact it said that United had served meals, snacks and beverages to its passengers and the charges for same had been included in the price of the ticket. The court said that this finding amounted to a factual determination that the food consumed by United’s passengers was paid for by them because a portion of their flight ticket was allocable to the charge for food. The court said it was bound by these findings.

The Michigan Sales Tax Act provides that a “sale at retail” means any transfer for a consideration of tangible personal property for any purpose other than resale.

The court held that the meals were consumed by United’s passengers, that the food was tangible personal property; and that the charge for the food was incorporated in the price of the ticket and, being paid for in the form of money, constituted consideration for the sale. Hence, there was a sale at retail within the meaning of the statute.

The issue to be decided here as it was in the trial court is whether or not the sale of meals, snacks and beverages by Hertz to United was a retail sale and thereby subject to sales taxes pursuant to Section 76(2)(j), supra, or was a wholesale sale as defined by Section 786(2) (i) and therefore not subject to sales taxes.

The trial court concluded that the sale was a wholesale sale and as a consequence not subject to sales taxes. We agree with the trial court’s conclusion.

The purpose of a retail sales tax is to tax the ultimate consumer. State v. T. R. Miller Mill Co., 272 Ala. 135, 130 So.2d 185.

In the case at bar the trial court found as a fact, and such finding is based on the agreed statement of facts filed in this case, that the food sold by Hertz to United was in turn sold to and consumed by United’s passengers, i.e., the price of the food was included in the price of the ticket and the food was consumed by United’s passengers. This was the finding in the Georgia and Michigan cases, whereas the Illinois case specifically decided that the passenger was not the consumer, but for tax purposes, the airline consumed the food in providing a service. Payment for these sales was made by including the cost of the meal in the price of the ticket so that when the flight ticket was purchased the meal was paid for at that time. In all three of the cited cases the price of the meal was included in the price of the ticket but Georgia and Michigan concluded that the meal price was ascertainable and therefore separable from the charge for transportation; hence the sale by the airline to its passengers was a retail sale. Illinois concluded that the food was consumed by American Airlines, not its passengers; hence there was no retail sale. The food costs were considered as a part of the cost of operating an airline.

Based on its findings of fact from the agreed statement of facts, the only evidence before the court on this subject, the trial court in the instant case concluded that the sale by Hertz to United was a wholesale sale inasmuch as the food purchased by United was intended to be resold to its passengers. Being a wholesale sale, the food items sold by Hertz to United were not subject to sales taxes. The trial court was correct in this aspect of its decree.

We wish to emphasize that the agreed statement of facts entered into by the parties to this appeal constituted the evidence before the trial court and provides that the food items sold to United by Hertz were for consumption by United’s passengers, and should a passenger not receive a meal on a “meal flight” he would be entitled to compensation either in the form of a comparable meal at the airport or in cash. The facts enumerated by the Illinois Supreme Court and deemed to be supportive of its opinion do not have a counterpart in the agreed statement of facts filed in the case at bar except that the price of the meal was included in the price of the ticket and even here the legal effect given to this fact by the Illinois court differs from that given by the trial court in the instant case. Due to the dissimilarities we'tlo not consider the Illinois case as apt authority for a decision in this case.

The trial court decreed that Revenue Department Rule M5-053 conflicted with CAB regulations and was invalid.

Rule M5-0S3 provides as follows:

“Sales of meals, drinks, etc., by railroads, airlines, steamships, or other transportation companies within this state are subject to the sales tax.
“Meals, etc., served by any transportation company as a part of its transportation service, for which no separate charge is made, are not required to be reported as retail sales by the Company. In such instances the Company is considered to be the consumer of the foods, etc., served and will be required to pay tax thereon to its supplier.” (Emphasis added.)

Hertz argues in support of that ruling that CAB regulations require that the price of the meal be included in the total fare charged the passenger and that since the above rule requires a separate charge, there is a fatal conflict. Where there is a conflict between a CAB regulation and a state requirement, so argues Hertz, the offending state rule must give way to the federal rule for the reason that Congress under the Constitution has preempted this particular area of the law.

We are of the opinion that the trial court erred in decreeing that Rule M5-053 was invalid in the present case.

In the Georgia and Michigan cases the price of the meal was included in the price of the ticket but in each one it was decided that the portion of the ticket attributable to the price of the meal was ascertainable and there being a sale for an ascertainable amount, sales taxes were due to be collected. However, the Illinois court in the American Airlines case, although finding that the price of the meal was included in .the ticket, also said that the food was sold to the airline for its use and consumption and not for resale to its passengers. The meal cost, due to the peculiar facts in that case, was deemed to be just another expense for the airline.

In the case at bar the evidence shows that the price of the food was included in the transportation charge; however, we believe that the food cost is an ascertainable amount and, being so, amounts to a separate charge so far as the purpose and intent of Revenue Department Rule MS-053 is concerned.

The price of the food being a separate charge within the meaning of Rule M5-053 under the facts of this case, there can be no conflict with CAB regulations; hence the trial court’s decree in this regard is in error.

The trial court also decreed that Title SI, Section 786(25), Code of Alabama 1940, as Recompiled 19S8, was in conflict with CAB regulations and, as a consequence, United Airlines could not be required to collect sales taxes on sales of food to its passengers. Section-786(25) requires that the retailer collect sales taxes on sales made to the consumer and imposes a penalty for the failure to comply with its directive.

To begin with, United Airlines is not and was not a party to the present action. The pleadings in this case have not raised the issue of the applicability or non-applicability of Section 786(25). As a matter of fact, the sole and only issue as presented by the Revenue Department’s tax assessment and by the pleadings filed in the trial court was whether Hertz was liable for sales taxes on the sale of food to United Airlines.

Inasmuch as United Airlines was not a party to the present proceeding and the fact that Section 786(25) was not an issue in the case, the trial court exceeded its jurisdictional authority in decreeing that Section 786(25) was not applicable to sales of food by United Airlines to its passengers. See Rogers v. Smith, 287 Ala. 118, 248 So.2d 713.

For the reasons above stated the judgment of the trial court is affirmed in part and reversed in part.

Affirmed in part and reversed in part, and remanded for the entry of a judgment in conformity with this opinion.

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


author: BLOODWORTH, Justice.

text:
    In re STATE of Alabama v. HERTZ SKYCENTER, INC. Ex parte State of Alabama.
    SC 1166.
    Supreme Court of Alabama.
    July 17, 1975.

      William J. Baxley, Atty. Gen., Willard W. Livingston, Counsel, Dept, of Revenue, and Asst. Atty. Gen., Philip C. Davis, Asst. Counsel, Dept, of Revenue, and Asst. Atty. Gen., for petitioner, the State.
    Thomas B. Hill, Jr., Neal H. Acker, Montgomery, for respondent.
   BLOODWORTH, Justice.

The question presented to us by the State’s petition for writ of certiorari is:

“When food prepared by Hertz Skycen-ter, Inc., a company engaged in the business of preparing food for human consumption, is sold to United Air Lines, Inc., a company engaged in the business of furnishing air passenger services, which food is to be served by United to its passengers departing from the Huntsville-Madison County Airport, are such sales ‘retail’ or ‘wholesale’ sales within the meaning of the Alabama Sales Tax Law [Tit. 51, § 786(2)] ?”

The Court of Civil Appeals concluded that such sales are “wholesale sales,” within the meaning of the Alabama Sales Tax Law, and are not subject to sales tax inasmuch as the food purchased by United was intended to be resold to United’s passengers for their consumption in flight. We agree.

The Court of Civil Appeals held, 55 Ala.App. 481, 317 So.2d 319, inter alia, viz:

“In the case at bar the trial court found as a fact, and such finding is based on the agreed statement of facts filed in this case, that the food sold by Hertz to United was in turn sold to and consumed by United’s passengers, i. e., the price of the food was included in the price of the ticket and the food was consumed by United’s passengers.”
ift % ifc ijc
“Based on its findings of fact from the agreed statement of facts, the only evidence before the court on this subject, the trial court in the instant case concluded that the sale by Hertz to United was a wholesale sale inasmuch as the food purchased by United was intended to be resold to its passengers. Being a wholesale sale, the food items sold by Hertz to United were not subject to sales taxes. The trial court was correct in this aspect of its decree.”

We affirm the Court of Civil Appeals’ decision as to this aspect.

The Court of Civil Appeals also held:

“Inasmuch as United Airlines was not a party to the present proceeding and the fact that Section 786(25) [requiring the retailer to collect sales taxes] was not an issue in the case, the trial court exceeded its jurisdictional authority in decreeing that Section 786(25) was not applicable to sales of food by United Airlines to its passengers. See Rogers v. Smith, 287 Ala. 118, 248 So.2d 713.” [Bracketed material supplied.]

Since the validity vel non of this holding is not raised by the petition for writ of certiorari, we do not undertake to examine the holding.

Finally, the Court of Civil Appeals held that the trial court erred in declaring that Revenue Department Regulation M5-053 conflicted with Civil Aeronautics Board regulations and was therefore invalid. Regulation M5-053 declares that the price of meals served by any transportation company (including airlines) are not required to be reported as “retail sales” by the company when “no separate charge is made” therefor and the meals are served “as a part of its transportation service.”

Although the validity and applicability of this regulation is presented to us, in view of the fact that the regulation purports to regulate the reporting and collection of sales taxes (pursuant to Tit. 51, § 786(25) ) by transportation companies, including airlines, and since United Air Lines is not a party to this cause, we decline to consider the validity or applicability of the regulation nor do we think the trial court or ,4he Court of Civil Appeals could do so for the same reason. Doby v. State Tax Commission, 234 Ala. 150, 174 So. 233 (1937). See also Rogers v. Smith, 287 Ala. 118, 248 So.2d 713 (1971).

The issue in the case at bar simply presents a conflict between two opposing interpretations of our sales tax statutes. Hertz, the caterer, says its sales to United were “wholesale sales” and it is not liable for collecting the sales tax. The State, on the other hand, contends the sales were “retail sales” and Hertz is liable for collecting the tax. United, the airline, is not a party to the lawsuit. (The conclusion is, of course, inescapable, that it will ultimately be the passenger who will pay the tax, regardless as to which party is made the collector. State v. T. R. Miller Mill Co., 272 Ala. 135, 130 So.2d 185.)

To conclude, we agree with the Court of Civil Appeals in its conclusion that the sales from Hertz to United were “wholesale sales” and were not therefore subject to sales taxes.

The judgment and decision of the Court of Civil Appeals is affirmed, as corrected by this decision.

Affirmed, as corrected.

HEFLIN, C. J., and MERRILL, FAULKNER, JONES, ALMON, SHORES and EMBRY, JJ., concur.

MADDOX, J., not sitting.


text:
    Daniel N. SLAY v. McKEAN PAINT AND HARDWARE STORE, INC., a corporation.
    Civ. 515.
    Court of Civil Appeals of Alabama.
    July 16, 1975.

      Wilson M. Hawkins, Jr., Mobile, for appellant.
    James R. Owen, Bay Minette, E. L. McCafferty, III, Mobile, for appellee.
   HOLMES, Judge.

This is an appeal from the Circuit Court of Baldwin County, granting appellee-cor-poration’s motion to revive a judgment over ten years old.

Appellant, by his assignments of error, contends the trial court erred to reversal in allowing a certain letter to be introduced and, further, that the verdict is not supported by the evidence.

The record reveals that a default judgment was taken against the appellant in July of 1963. In May of 1974, a motion to revive the judgment was filed.

As to the appellant’s first contention, the following pertinent facts are revealed from the record.

During direct examination the appellant testified, in effect, that he had satisfied the judgment by the payment of cash to the president of the corporation who is now deceased. This payment was allegedly made in late 1963. On cross-examination the appellant was asked if in fact, an attorney in 1964, representing appellant, had not written a letter to the attorney who was representing appellee suggesting a compromise settlement of the judgment. Appellant denied he authorized such a letter to be sent to appellee, although he did testify that he had “probably” authorized the attorney to settle some judgments against him. There was no objection to the foregoing question. The letter was then introduced over objections, apparently bottomed on the premise that the letter was not properly authenticated and/or authorized.

At best, in this instance, we consider the action of the trial court to be harmless error. Supreme Court Rule 45 and Rule 61 of the Alabama Rules of Civil Procedure require that no judgment may be reversed on the ground of improper admission of evidence unless, after examination of the entire cause, it should appear that the error complained of has probably injuriously affected substantial rights of the parties. We find no such error. As will be seen from the following portion of this opinion, there was evidence to amply support the court’s decree allowing the reviving 'of the judgment without the consideration of the aforementioned letter which was introT duced on cross-examination of the appellant. Suffice it to say at this time the appellant testified the judgment was paid. A corporate officer familiar with the corporate books testified otherwise. The trial judge resolved the conflict in favor of the appellee-corporation.

Finally, the appellant argues that in view or Tit. 7, § 582, Code of Alabama 1940, there is insufficient evidence to overcome the presumption created by § 582.

Tit. 7, § 582, reads as follows:

, “If ten years have elapsed from the rendition of the judgment or decree without issue of execution, or, if ten years have elapsed since the date of the last execution issued, the judgment or decree must be presumed satisfied, and the burden of proving it not satisfied is upon the plaintiff.”

Cases interpreting this Code section clearly indicate that the statutory presumption of payment of a judgment after ten years casts the burden on the plaintiff of proving that it is not satisfied. See Hays v. McCarty, 239 Ala. 400, 195 So. 241; Gambill v. Cassimus, 247 Ala. 176, 22 So.2d 909. Appellant argues that appellee did not meet this burden. We disagree.

Needless to say, the trial court’s action is to be viewed with the attendant presumption of correctness. See 2A Ala. Dig., Appeal and Error, ‘©^'©^lOOS.l(2), (6), and 1009(1).

The present corporate president testified he had been an officer of the corporation since its incorporation; that he has been president since the death of his father in 1964; that he was familiar with the books and records of the corporation (in fact, he kept the books); and that the aforesaid judgment was rendered and that it had not been paid in full. We believe the above is sufficient proof to overcome the burden created by § 582 of Tit. 7, Quite frankly, if it were not, a plaintiff-corporation could, in effect, rarely overcome the presumption created by Tit. 7, § 582.

As we noted earlier, the case is one of conflicting testimony. The judgment-creditor, through a qualified corporate officer, appropriately testified that the judgment was not paid. The judgment-debtor testified he paid the judgment by paying cash to the now deceased corporate president. It then became, in this instance, the duty of the trial judge to resolve this conflict. He did and we affirm.

All assignments of error properly argued having been considered, the case is due to be affirmed.

Affirmed.

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


author: BOWEN W. SIMMONS, Supernumerary Circuit Judge. BOWEN W. SIMMONS, Supernumerary Circuit Judge.

text:
    Thomas William YELTON, alias v. STATE.
    3 Div. 231.
    Court of Criminal Appeals of Alabama.
    May 7, 1974.
    Rehearing Denied June 4, 1974.
    David T. Hyde, Jr., Evergreen, for appellant.
    William J. Baxley, Atty. Gen., and David W. Clark, Asst. Atty. Gen., for the State.
   BOWEN W. SIMMONS, Supernumerary Circuit Judge.

Appellant-defendant was convicted the second time for murder in the first degree. Sentence in each conviction, followed by proper judgment, was life imprisonment. The judgment in the first trial was reversed and remanded. Yelton v. State, 50 Ala.App. 168, 277 So.2d 912, cert. den. 291 Ala. 804, 277 So.2d 916.

The victim had been separated from his wife until a very short period before the homicide, which occurred in the bedroom of the victim and his wife. Sufficient details appear in the published report of Yelton v. State, supra. It would serve no useful purpose to repeat and elaborate on them here.

Error to reverse and remand in this appeal lies in the admission of secondary evidence over an appropriate and timely objection of the appellant, which was overruled.

The admitted exhibit one, secondary evidence, was a photostatic copy of some known fingerprints of the appellant. This copy was used in evidence to compare some latent fingerprints of the appellant that were lifted from a ledge or sill of a window that opened into the room where the homicide took place. Comparisons were made by an expert who testified that the latent fingerprints and those of exhibit one were the same. The comparative and identifying testimony was material evidence in the case.

This court takes judicial knowledge of its own records. Statham v. Statham, 282 Ala. 322, 211 So.2d 456(6). The original of exhibit one, the secondary evidence, was on file in this court at the time of the second trial and was lawfully available had the state made timely and appropriate efforts to get it as provided'by law.

“Photostatic copies, very useful in many respects, are secondary evidence. 32 C. J.S., Evidence, § 815, page 747.”

This quoted pronouncement appears in Aircraft Sales & Service v. Gantt, 255 Ala. 508, 52 So.2d 388, which cites Hosey v. Southport Petroleum Co. of Delaware, 244 Ala. 45, 12 So.2d 93(6), which also quotes this principle of law with approval.

Had request been made within thirty days pursuant to Supreme Court Rule 51, or after that, then if the exhibit one had not been destroyed, the clerk of this court would have forwarded the exhibit to the attorney, submitting the request. The exhibit has not been destroyed at this time.

We pretermit considering appellant’s other contentions of error. Many of such contentions may not find factual foundation at the next trial.

Because of the error in overruling appellant’s objection to the admission of exhibit one when the original was available, the judgment is reversed and the cause remanded for further consideration of the trial court.

The foregoing opinion was prepared by the Hon. BOWEN W. SIMMONS, Supernumerary Circuit Judge, serving as a judge of this Court under Section 2 of Act No. 288, July 7, 1945, as amended; his opinion is hereby adopted as that of the Court.

Reversed and remanded.

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

ON REHEARING

BOWEN W. SIMMONS, Supernumerary Circuit Judge.

We will make a brief elaboration of the evidence to support our statement in the opinion that the fingerprint evidence was material in the case. Appellee asserts on rehearing that the ruling of the court which admitted the secondary evidence was error without injury. Supreme Court Rule 45.

There was evidence that the victim’s wife and appellant had been having sexual relations prior to the homicide.

The victim’s widow testified that after she and her husband returned late at night with friends from a party at Opp, appellant was present in their home, and that he then and there killed her husband by shooting him.

The appellant denied this testimony. He testified that Mrs. Henderson came after him at Henley’s camp house in Hayneville where he was then living. They both went from there to her home where the victim was dead from a gunshot wound. The appellant further testified that Mrs. Henderson told him, after reaching her home, that she had shot her husband during an argument. Thereafter they took off to North Carolina and back to Greenville, traveling in an automobile. Appellant denied his guilt. We omit details of the itinerary.

Appellant’s alleged fingerprints on the window ledge or sill were material evidence vo.n the issue of appellant’s presence vel non in the home of the Hendersons on their return from Opp.

The foregoing was prepared by the Hon. BOWEN W. SIMMONS, Supernumerary Circuit Judge, serving as a judge of this Court under § 2 of Act No. 288, July 7, 1945, as amended; his decision is hereby adopted as that of the Court.

The opinion is extended and the application for rehearing is overruled.

Opinion extended. Application for rehearing overruled.

All the Judges concur.


text:
    In re Thomas William YELTON v. STATE of Alabama. Ex parte STATE of Alabama ex rel. ATTORNEY GENERAL.
    SC 869.
    Supreme Court of Alabama.
    Aug. 8, 1974.
    Rehearing Denied Sept. 12, 1974.

      William J. Baxley, Atty. Gen., and David W. Clark, Asst. Atty. Gen., for petitioner, the State.
    David T. Hyde, Jr., Evergreen, for respondent.
   MERRILL, Justice.

The defendant was convicted of murder in the first degree and sentenced to life imprisonment. He appealed and the Court of Criminal Appeals reversed because the sheriff, an investigator and witness in the case, was in charge of the jury. Yelton v. State, 50 Ala.App. 168, 277 So.2d 912. We denied certiorari, 291 Ala. 804, 277 So.2d 916.

The second trial resulted in the same sentence and the defendant again appealed. The Court of Criminal Appeals again reversed and we granted the petition for cer-tiorari.

The opinion of the Court of Criminal Appeals states:

“Error to reverse and remand in this appeal lies in the admission of secondary evidence over an appropriate and timely objection of the appellant, which was overruled.”

The opinion also states that the original of Exhibit 1 was on file in the Court of Criminal Appeals at the time of the second trial.

On application for rehearing, the court wrote in part:

“Appellant’s alleged fingerprints on the window ledge or sill were material evidence on the issue of appellant’s presence vel non in the home of the Hender-sons on their return from Opp.”

The point the State makes is that error in admitting illegal testimony may be rendered harmless by subsequent or prior legal testimony to the same effect.

The deceased, Phillip Henderson, was killed in his home on Sunday morning, December 19, 1971, between 2:00 and 4:00 A. M. after he and his wife had returned from a Christmas dance at Opp. The only purpose of introducing the fingerprints of the defendant was to show that at some time he had been present in the house. The opinion shows that the deceased’s wife testified that the defendant was in their home and killed her husband. The appellant’s testimony was that he was in their home early that morning after Mrs. Henderson came after him and took him to their home. Thus, the undisputed testimony from both the State and the defendant is that the defendant was in the home either at the time of, or soon after, the shooting. This was far stronger evidence of the defendant’s presence in the house than the finding of fingerprints, which could have been made at any time.

The rule is .that testimony apparently illegal upon admission may be rendered prejudicially innocuous by - subsequent legal testimony td the same effect or from which the .same facts can be inferred. East Alabama Express Co. v. Dupes, 271 Ala. 504, 124.So.2d 809.

It has also been held that the defendant is not prejudiced by testimony of a witness which related to uncontradicted matters. United Sec. Life Ins. Co. v. St. Clair, 41 Ala.App. 243, 130 So.2d 213, cert. den. 272 Ala. 711, 130 So.2d 219; Timmerman Ins. Agency, Inc. v. Miller, 285 Ala. 82, 229 So.2d 475 [4].

The admission of evidence though it be incompetent if it be of undisputed facts, is harmless. Coplon v. State, 15 Ala.App. 331, 73 So. 225.

The defendant cannot complain of the admission of improper evidence where he himself testified to the same facts. Coplon v. State, supra, 7 Ala.Dig., Criminal Law, <©=>1169(2).

This court has held that even though there may have been error in admitting a confession, “such error was cured by appellant’s own admissions when he testified as a witness in his own behalf.” Hardie v. State, 260 Ala. 75, 68 So.2d 35; Chandler v. State, 283 Ala. 29, 214 So.2d 306, and the many cases there cited.

For any or all of the foregoing reasons, the trial court’s action in permitting the introduction of the fingerprint card, Exhibit No. 1, into evidence was not reversible error.

We cannot agree that the failure to request the original fingerprint card under Supreme Court Rule 51 was sufficient reason to reverse the judgment of conviction.

This disposes of the ground urged by the State on certiorari for reversal of the judgment of the Court of Criminal Appeals and that judgment must be reversed. In view of the fact that that court will again consider this case we think it proper to address ourselves to the fundamental question in the case, which is not the application of the harmless error rule, but the admissibility of the copy of the fingerprint card, Exhibit 1.

Where there is no dispute about the facts, this court may go to the full record for a more complete understanding of those features treated in the opinion of the Court of Criminal Appeals. Johnson v. State, 287 Ala. 576, 253 So.2d 344; Wilbanks v. State, 289 Ala. 171, 266 So.2d 632; Nixon v. State, 291 Ala. 657, 286 So.2d 315. Here, there is no dispute about the fact that the trial court admitted Exhibit 1 into evidence.

The record shows that Chief Deputy Sheriff Worthington testified that he had taken thousands of people’s fingerprints and on December 22, 1971, he took defendant’s fingerprints.

Mrs. Sandra Day, the official court reporter at both trials, testified that Exhibit 1 was a photostatic copy of the original fingerprint card which was introduced in the original trial and was presently attached to the original transcript of the first trial that was filed with the Supreme Court of Alabama; that Exhibit 1 was a true and exact copy of the original in all respects and that she personally made the copy.

Chief Deputy Worthington was recalled and testified that Exhibit 1 was a photostatic copy of the fingerprints he made of the defendant, that he turned the original card over to Sergeant Pitts and that the defendant’s fingerprints that he made were on the card.

Sergeant Pitts, an investigator for the Department of Public Safety, identified Exhibit 1 as the fingerprint card he received from Chief Deputy Worthington as being the fingerprints of the defendant.

J. B. Jolly, a fingerprint expert with the Department of Public Safety, testified that Exhibit 1 was given to him by Sergeant Pitts, that he compared the fingerprints of the defendant on the card with the fingerprints on the window sill and that they were the fingerprints of the same person. Then the following transpired:

“MR. BRYAN: The State offers in evidence State’s Exhibit No. 1 for identification and asks that it be marked as State’s Exhibit No. 1.
, “THE COURT: Any objections?
“MR. HYDE: Yes, sir.
“THE COURT: Overrule it.
“MR. HYDE: This is not an original and is not the best evidence.
“THE COURT: I think that that has been accounted for by the testimony of the court reporter.
“MR. HYDE: It hasn’t been accounted that it was lost or that they weren’t able to obtain it.
“MR. BRYAN: The witness testified, Your Honor, that this was a true and exact copy of the original.
“THE COURT: I believe, Mr. Hyde, my recollection is that the court reporter testified that the original of this exhibit went in with the transcript.
“MR. HYDE: Yes, sir.
“THE COURT: That’s sufficient for the Court. Overrule it. (Said document is hereby received into evidence as State’s Exhibit No. 1 and the same is attached to the original of this transcript.)”

The trial court did not err in admitting the photostatic copy of the fingerprint card in evidence. The Court of Criminal Appeals in Neal v. State, 47 Ala.App. 68, 250 So.2d 605, cert. den. 287 Ala. 738, 250 So.2d 608, approved the admission in evidence of a “photo-copy of the micro film of the original invoice” over several grounds of objection, one of which was that it was “not the highest and best evidence.”

Judicial records are admissible in evidence in the same and subsequent litigation, if relevant to the issues involved and shed light upon the issues being tried. Benton v. State, 245 Ala. 625, 18 So.2d 428; Alston v. State, 248 Ala. 163, 26 So.2d 877. In the last cited case, “a copy of a copy” of a transcript of a record required to be kept was held to be admissible in a death case.

Here, the proper predicate was laid that Exhibit 1 was an exact copy of the original, made by the official court reporter from the original, and the unavailability of the original was explained because it was attached to the transcript on the first appeal which was filed in the appellate court. This fact is substantiated in the opinion of the Court of Criminal Appeals.

The card was also admissible under the common law. The original card was a part of a public record since it was attached to the official transcript of the first trial. We quote the following from McElroy, Law of Evidence in Alabama, 2nd Ed., Vol. 2, § 218.02, p. 150:

“Proof of the content of the public' record may be made by a copy thereof —at common law, by a sworn 'or examined copy; and usually, under a statute, by a certified copy. Miller v. Boykin, 70 Ala. 469, 478.
“The term ‘examined or sworn copy’ of a public record means a copy which a witness testifies was correctly copied by him from, or was compared by him with, the original and found to be a correct copy of the original. 20 Am.Jur., Evidence, sec. 1038.”

Based upon the undisputed testimony, it is apparent that Exhibit 1 was admissible under the common law and case law of this state.

We also note that “The proof required of the genuineness of papers taken from the records of a court need not be of such high degree as in other cases.” Butler v. State, 38 Ala.App. 527, 93 So.2d 441, cert. den. 265 Ala. 694, 93 So.2d 445.

The judgment of the Court of Criminal Appeals is reversed and the cause is remanded.

Reversed and remanded.

HEFLIN, C. J., and HARWOOD, BLOODWORTH, MADDOX, McCALL and FAULKNER, JJ., concur.


text:
    Thomas William YELTON, alias v. STATE.
    3 Div. 231.
    Court of Criminal Appeals of Alabama.
    Oct. 1, 1974.
    Rehearing Denied Nov. 12, 1974.
    David T. Hyde, Jr., Evergreen, for appellant.
    William J. Baxley, Atty. Gen., and David W. Clark, Asst. Atty. Gen., for the State.
   After remand from the Supreme Court of Alabama

BOWEN W. SIMMONS, Supernumerary Circuit Judge.

On reconsideration after remand, affirmed on authority of Ex parte State, etc.. 294 Ala. 340, 317 So.2d 331, dated August 8, 1974.

The foregoing was prepared by Honorable BOWEN W. SIMMONS, Supernumerary Circuit Judge, serving as a judge of this Court under § 2 of Act No. 288, July 7, 1945, as amended; his opinion is hereby adopted as that of the Court.

Affirmed.

All the Judges concur.

ON REHEARING

BOWEN W. SIMMONS, Supernumerary Circuit Judge.

Appellant renews his contention, asserted on the original submission, that the trial court erred in admitting in evidence, after appropriate objection, his waiver of Miranda rights (Exhibit 26, Tr. 220) and his in-culpatory statement (Exhibit 27, Tr. 222) due to his demand, prior to signing, for an attorney as mandated by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694. The state’s witness Herman Pitts, an officer who took the waiver and statement admitted that the defendant, prior to waiver, requested an attorney, who was not made available to the defendant pursuant to his demand.

It appears that the defendant took the witness stand and that Exhibits 26 and 27, supra, were offered in evidence after the defendant had testified in his own behalf. Voir dire examination of the witness, Pitts, and the defendant relative to said exhibits was held after the defendant concluded his testimony in his own defense.

We think the admission of said exhibits was free of error. The Supreme Court in Harris v. New York, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1, held such a statement inadmissible against a defendant in the prosecution’s case in chief, because of the lack of procedural safeguards required by Miranda, supra. Harris further held that such a statement, if its trustworthiness satisfied legal standards, may be used for impeachment purposes to attack the credibility of the defendant’s trial testimony. Walder v. United States, 347 U.S. 62, 74 S.Ct. 354, 98 L.Ed. 503.

We quote from Harris, which was also approved in Michigan v. Tucker, 417 U.S. 433, 94 S.Ct. 2357, 41 L.Ed.2d 182 (cited June 10, 1974), as follows:

“Some comments in the Miranda opinion can indeed be read as indicating a bar to use of a.n uncounseled statement for any purpose, but discussion of that issue was not at all necessary to the Court’s holding and cannot be regarded as controlling. Miranda barred the prosecution from making its case with statements of an accused made while in custody prior to having or effectively waiving counsel. It does not follow from Miranda that evidence inadmissible against an accused in the prosecution’s case in chief is barred for all purposes, provided of course that the trustworthiness of the evidence satisfies legal standards.”

Relating to appellant’s contention that lawful predicate to the voluntariness in making and signing the statement was not laid, we refer to the record, wherein it appears that witness Pitts, on re-direct examination, testified with reference to the voluntary character of the statement as follows:

“Q. Did you or anyone in your presence offer any violence to this person?
“A. Did not.
“Q. Promise him any hopes of reward?
“A. No, sir.
“Q. Tell him it would be worse on him if he didn’t testify?
“A. No, sir.
“Q. Promise him any sort of inducement?
“A. No, sir.”

The other assertions of error on rehearing are without merit. The application for rehearing is due to be overruled.

The foregoing was prepared by the Hon. BOWEN W. SIMMONS, Supernumerary Circuit Judge, serving as a judge of this Court under § 2 of Act No. 288, July 7, 1945, as amended; his opinion is hereby adopted as that of the Court.

Opinion extended; application for rehearing overruled.

All the Judges concur.


author: JONES, Justice.

text:
    In re Thomas William YELTON v. STATE. Ex parte Thomas William Yelton.
    SC 1067.
    Supreme Court of Alabama.
    April 24, 1975.
    David T. Hyde, Jr., Evergreen, for petitioner.
    William J. Baxley, Atty. Gen., and David W. Clark, Asst. Atty. Gen., for the state.
   JONES, Justice.

Petition of Thomas William Yelton for Certiorari to the Court of Criminal Appeals to review and revise the judgment and decision of that Court in Yelton v. State, 55 Ala.App. 491, Ala., 317 So.2d 335.

Writ of certiorari quashed as being improvidently granted; petition denied.

HEFLIN, C. J., and MERRILL, BLOODWORTH, MADDOX and SHORES, JJ., concur.