text:
    STATE of Alabama v. Ocie MADDOX.
    Civ. 1368.
    Court of Civil Appeals of Alabama.
    April 26, 1978.

      William J. Baxley, Atty. Gen., and Van-zetta Penn Durant, Asst. Atty. Gen., for the State of Ala., appellant.
    No brief for appellee.
   HOLMES, Judge.

This is a paternity suit.

The Circuit Court of Madison County granted the reputed father’s motion to dismiss. The trial court’s action was bottomed on the premise that the complaint was barred by the statute of limitations. The State contends the statute of limitations was tolled and therefore had not run. We agree with the trial court and affirm.

At the outset, we note Code of Ala. 1975, § 26-12-7, which deals with limitations on commencement of paternity proceedings:

“Proceedings under this chapter shall not be brought after the lapse of two years from the birth of the child, unless, in the meantime, the reputed father has legally acknowledged paternity or has supported said child.”

The child was born in October, 1973. In July, 1976, the appellee allegedly stated to the Department of Pensions and Security that he was the father of the child. A paternity suit was filed against the appellee in March, 1977.

The State contends the acknowledgment of the child in 1976 was sufficient to toll the above noted statute of limitations. Such is not the case.

Evidence of supporting the child before the expiration of two years from the birth of the child and within two years before the complaint is necessary to toll the running of the statute of limitations. See Ward v. State, 42 Ala.App. 529, 170 So.2d 500 (1964), cert. denied, 277 Ala. 703, 170 So.2d 504 (1965).

The supreme court in Hunter v. State, 293 Ala. 226, 227, 301 So.2d 541, 542 (1974), while not an issue in the case, noted that:

“The jury was orally charged by the trial judge that before it could decide the ultimate issue of paternity, it must first determine whether the defendant had supported the two children before the expiration of two years from the birth of the children and within two years prior to the filing of the complaint. . . . ” [Emphasis supplied.]

The above cases clearly indicate and we so hold that in order for the statute of limitations to be tolled in a paternity proceeding under § 26-12-7, there must be acknowledgment or support of the child by the reputed father within two years of the child’s birth. See Hunter v. State, supra; Ward v. State, supra.

This is further exemplified by the definition of “in the meantime” as it is used in § 26-12-7. This phrase has been defined as the time during the interval between two given dates. See 26A Words and Phrases Meantime; Eli Witt Cigar & Tobacco Co. v. Somers, 99 Fla. 592, 127 So. 333 (1930).

The two given dates in this instance are the birth of the child and the date two years after the birth. Support or acknowledgment must come “in the meantime,” i.e., between the birth and two years after. Clearly, the evidence shows that the appel-lee did not make any acknowledgment within two years of the child’s. birth. In view of this, the two year statute of limitations was not tolled under § 26-12-7 and the trial court did not err in dismissing appellant’s complaint.

The above being dispositive of the issues in this case, the trial court is hereby due to be and is affirmed.

AFFIRMED.

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


source: Caselaw Access Project

author: BRADLEY, Judge.

license: Public Domain

text:
    Joyce CHAMBERLIN v. Richard Allen FLOWERS.
    Civ. 1507.
    Court of Civil Appeals of Alabama.
    April 26, 1978.
    J. Connor Owens, Jr., Bay Minette, for appellant.
    Norborne C. Stone, Jr., Bay Minette, for appellee.
   BRADLEY, Judge.

In May of 1977 Richard Allen Flowers filed a petition in the Circuit Court of Baldwin County seeking a judicial determination of the effect of an option to purchase contained in the Last Will and Testament of his late mother, Alma Flowers. The option is as follows:

“ITEM III: In the event my husband, Ira Flowers, shall predecease me, or in the event we shall both die in a common accident or at the same time, then in either of such events I give, devise and bequeath to my son, RICHARD ALLEN FLOWERS, an exclusive option to purchase all real property owned by me for a period of one year from the date of my death for the sum of Six Thousand Dollars ($6,000.00), which shall be paid in full at the time the said option is exercised. In the event the said option is exercised by my said son and the said purchase price paid for the said property, it shall be divided and paid to my children, ELVIN A. FLOWERS, MARSHALL FLOWERS, VERA BONNER, VERDAN DIAMOND, JOYCE WALDEN and GRACE SMALLWOOD — that is to say, the sum of One Thousand Dollars ($1,000.00) shall be paid to each of them.
“In the event my son, Richard Allen Flowers, does not exercise the option to purchase the real property owned by me at the time of my death as provided in the preceding paragraph of this item of this will, then in that event I give, devise and bequeath all real property owned by me to my children, RICHARD ALLEN FLOWERS, ELVIN A. FLOWERS, MARSHALL FLOWERS, VERA BONNER, VERDAN DIAMOND, JOYCE WALDEN and GRACE SMALLWOOD, share and share alike.” (Emphasis supplied.)

In his petition to the circuit court, Flowers contended that he was prevented from exercising the option within the specified time due to a contest of his mother’s will by several of his sisters; he also argued that the option could not be exercised until after the will was admitted to probate.

Three of Flowers’ sisters, including appellant here, answered with a general denial. After a hearing on the parties’ contentions, the trial court rendered a declaratory judgment permitting Flowers to exercise the option upon payment of the $6,000 purchase price into court. He was further authorized to issue himself a deed to the lands in question. One of his sisters, Joyce Cham-berlin, appeals from that judgment.

The facts reveal that Alma Flowers died on February 15, 1976 and that in her will she named the appellee, her son, as executor. The will also contained the option which is in controversy. On May 16, 1976 appellee petitioned the Probate Court of Baldwin County to admit the will to probate.

On June 18, 1976 appellant and two sisters filed a contest to the will and the proceedings were removed to the circuit court where a jury trial was requested. Upon transfer to the circuit court it was discovered that one of the heirs had been declared incompetent and consequently the matter was transferred back to the probate court. After this problem was resolved, the case was once again transferred to the circuit court.

Trial was had before the court and a jury, and a verdict and judgment was rendered for the proponent of the will. On February 14, 1977 the records of the proceedings contesting the will were returned to the probate court, and on April 22, 1977 the will was admitted to probate. Shortly thereafter, appellee initiated an action to exercise his option to purchase.

On appeal, appellant contends that the option imposed a condition precedent on appellee to purchase the property within one year of the death of his mother. And in view of the fact that appellee did not purchase the property within one year of his mother’s death, appellant urges that we hold that appellee has lost his option. Conversely, appellee argues that no option had been conferred on him which he could exercise until the will was admitted to probate, and that the probating of the will was delayed by the contest of the appellant and her sisters.

A “condition precedent” is a condition which must occur before an estate or interest can vest. Megery v. Selymes, 14 Ohio App.2d 28, 235 N.E.2d 725 (1968). On the other hand, a “condition subsequent” refers to an event which is designed to occur after the estate or interest has already vested. 96 C.J.S. Wills § 995. Moreover, estates are deemed to be vested in this jurisdiction unless the devise is subject to a condition precedent which is so clearly expressed that the courts cannot treat it as vested without deciding in direct opposition to the terms of the will in question. Brizendine v. American Trust & Savings Bank, 211 Ala. 694, 101 So. 618 (1924).

The decision in Stern v. Stern, 410 Ill. 377, 102 N.E.2d 104 (1951), specifically declined to hold that a clause in a will which provided an option to purchase within a prescribed time after the death of the testator was a condition subsequent. And in In re Estate of Alpers, 251 Cal.App.2d 40, 58 Cal.Rptr. 841 (1967), the court concluded that where the time for performance of a condition in a will is limited to one year, it is a condition precedent.

The specific clause at issue in this case concerns the option to purchase real property which the testatrix granted to her son, Richard Flowers. This option was subject to the condition that Flowers (appellee) purchase the testatrix’s property within one year from the date of her death. We believe that the option clearly constituted a condition precedent.

Generally, a condition precedent must be literally performed before any estate may vest in a devisee or any bequest pass to a legatee. Austin v. Pepperman, 278 Ala. 551, 179 So.2d 299 (1965). However, a number of jurisdictions have modified the general rule by determining that when the performance of a condition precedent to a testamentary gift is prevented or rendered impossible through no fault of the devisee or legatee, the prevention or impossibility of the occurrence of the condition will not affect the gift. Boggess v. Crail, 224 Ky. 97, 5 S.W.2d 906 (1928); In re Lipiec’s Will, 37 Misc.2d 747, 236 N.Y.S.2d 199 (1962). And in determining whether the performance of the condition can be properly excused, it is relevant to inquire as to whether the testator’s primary concern was the betterment of the devisee (or legatee) or the performance of the condition. In re Bridge’s Estate, 41 Wash.2d 916, 253 P.2d 394 (1953).

' In In re Estate of Beaver, 206 N.W.2d 692 (Iowa 1973), the Iowa Supreme Court examined a clause in a will under which the testator granted his son an option to purchase certain real estate provided the son exercised this option within thirty days after the testator’s granddaughter reached the age of thirty years or died. The performance of this provision was subsequently rendered impossible because the granddaughter was forty-one years old when the will took effect. Nonetheless, the court concluded that the overriding intent of the testator was that the son’s option to purchase the land should come into being at the death of the testator rather than on the thirtieth birthday or death of the granddaughter as provided in the will. The court’s rationale in making its determination was that the testator’s primary concern was the betterment of the devisees (/. e. that the son exercise his option to purchase and that the proceeds from this sale be placed in a trust for the granddaughter), rather than the strict compliance with the condition set out in the will.

We believe the holding in In re Estate of Beaver to be applicable in the present case. Appellee, in his capacity as executor, attempted to submit his mother’s will for probate. This attempt was thwarted by the fact that appellant and her sisters chose to contest the will. And during the period in which the will was contested, we are at a loss as to how appellee could have exercised his option to purchase. The will contest prevented the probate of the will. In the absence of the probating of the will, there was no one to accept the purchase money nor anyone to deed the property to appellee. Moreover, this court is persuaded that ap-pellee’s right or option to purchase his mother’s property could not have been exercised until the will of his mother was admitted to probate since a will is ineffective until it is probated. Indeed, in Gilbert v. Partain, 222 Ala. 459, 133 So. 2 (1931), the supreme court said:

“The right, if any, which vested upon the death of the alleged testator, without more, was the right of testator’s heirs at law. The will, in the absence of the probate prescribed by statute, conferred no rights and could take effect only after it had been admitted to probate in the proper forum.”

See also Caverno v. Webb, 239 Ala. 671, 196 So. 723 (1940); and Jordan v. Jordan’s Admr., 65 Ala. 301 (1880).

As the language in Gilbert v. Partain indicates, the named executor has no authority to carry out the mandates of a will until it is admitted to probate. In the instant case, testatrix’s will could not be admitted to probate because the terms of the will were being contested. Thus, the litigation over the will initiated by appellant and her sisters frustrated the option provision in the will and thereby prevented appellee’s performance of the condition precedent found in the clause in question.

Consequently, it is our view that the ap-pellee’s delay in exercising his option was excused by the fact that his ability to act upon the option was subjected to constant litigation so that, practically speaking, there was never a time within one year from the date of testatrix’s death that he (appellee) could have safely proceeded to exercise his option and purchase the property-

For us to hold otherwise would, in our opinion, require such strict compliance with the condition precedent that the testatrix’s intent to allow her son to have the opportunity to purchase her real estate would be defeated. Accordingly, we are convinced that the trial court acted properly in permitting appellee to exercise the option by paying the $6,000 into court and by directing that he issue a deed to himself.

AFFIRMED.

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


author: HOLMES, Judge.

text:
    Karen E. GREEN v. BLUE CROSS-BLUE SHIELD OF ALABAMA, a corporation.
    Civ. 1391.
    Court of Civil Appeals of Alabama.
    May 3, 1978.

      Lawrence M. Wettermark of Collins, Galloway & Smith, Mobile, for appellant.
    J. Edward Thornton, Mobile, for appellee.
   HOLMES, Judge.

The Circuit Court of Mobile County granted the defendant-insurance company’s motion for summary judgment. The plaintiff-insured appeals and contends that the record before the trial court contained a scintilla of evidence creating a genuine issue of a material fact.

We find such genuine issue of a material fact to exist and reverse.

The plaintiff ultimately brought suit against the defendant insurance company claiming benefits due from a hospitalization policy issued by the insurance company to the plaintiff. The insurance company defended on the grounds that the plaintiff’s medical problems pre-existed the effective date of the policy.

The pertinent provisions of the policy, relied upon by the insurance company, are as follows:

“C. Pre-existing conditions. — Benefits hereunder shall not be available to any Member for any condition . . . congenital or otherwise, either (1) which existed on or before the Effective Date of such Member’s coverage hereunder, whether then manifested or known in any way or not . . unless and until such Member shall have been covered by this Contract . . . for a period of nine (9) consecutive months immediately preceding the date of the commencement of the hospitalization . . . ”

Our review of the record reveals the following. The plaintiff applied to the insurance company for insurance. Her policy became effective on September 1, 1975. Thereafter, in September, she was examined by her physician. This examination was what might best be described as a pelvic examination. In November or December, the plaintiff was again seen by her physician who again made a pelvic examination. It should be noted at this point that the plaintiff was experiencing some menstrual problems. However, the physician reported no abnormal or unusual finding during these examinations. In January, the plaintiff was again seen by her physician. A pelvic examination was performed and the plaintiff’s physician apparently for the first time discovered what he believed to be a right ovarian lesion. Two subsequent examinations were performed whére-in the mass was still present. The plaintiff’s physician recommended hospitalization and a pelvic laparotomy for removal of the mass.

The operation was performed and it was discovered that there was no right ovarian lesion. It was, however, discovered that the plaintiff had a congenital absence of a right Fallopian tube and ovary. It was further discovered that the plaintiff had what is described as a pelvic kidney on her right side. This condition might best be described as a “misplaced” kidney. Put another way, the right kidney was not located where the majority of people’s right kidneys are located. We note, however, that this kidney functions properly.

The record, to this court, reveals further that plaintiff’s physician on previous examinations, as indicated above, mistook the pelvic kidney for an ovarian lesion or cyst. Upon the discovery of the pelvic kidney, no further surgery was performed except for the elective removal of the plaintiff’s appendix, which is not involved in this lawsuit. Specifically, no surgery was performed on the kidney or other organs. We believe it fair comment to note at this point that, in view of the above, it can be said that there was an incorrect diagnosis and the surgery was unnecessary. We do not state the above to indicate fault or otherwise on the part of anyone.

It is the plaintiff’s dispositive position, as indicated by the brief filed by her counsel, that the record before the trial court does not reveal that the pelvic kidney pre-exist-ed the effective date of the policy. Plaintiff’s contention must necessarily embrace the further contention that if in fact the pelvic kidney caused the misdiagnosis and resulting surgery, coverage exists even though the operation clearly was not performed on the basis of a diagnosed pelvic kidney.

She bottoms the above, i. e., that the pelvic kidney was not pre-existing, on her affidavit to the trial court. This affidavit stated that on several occasions after the policy was in force (September 1, 1975), she was examined by her physician and no indication was given by her physician that any mass was present.

It is the position of the insurance company that the medical record clearly revealed that the pelvic kidney was in fact congenital and, therefore, pre-existing. Specifically, the insurance company refers to the report of the physicians where it is noted “Congenital (R) Kidney.”

This is a difficult case. However, as indicated above, we must reverse.

A plethora of cases say that the party moving for summary judgment must clearly establish that the opposing party could not recover under “any discernible circumstances.” Folmar v. Montgomery Fair Co., Inc., 293 Ala. 686, 309 So.2d 818 (1975). Specifically, a summary judgment motion may be granted only when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Young v. City of Huntsville, Ala.Civ.App., 342 So.2d 918 (1976), cert. denied Ala., 342 So.2d 924 (1977). Additionally, on appeal from summary judgment, the appellate court looks at the same factors which the court below considered in ruling on the motion. 2A Ala.Digest Appeal & Error <®=»863. Furthermore, all reasonable inferences from the facts must be viewed most favorably to the nonmoving party. U. S. v. Diebold, Inc., 369 U.S. 654, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962).

With the above in mind, we cannot say that there is no genuine issue as to any material fact. Specifically, the affidavit of the plaintiff clearly indicates that on several different medical examinations, after the effective date of the policy, no indication was given by the physician of any existing mass, whether caused by an ovarian lesion or a pelvic kidney. The preoperation medical records of the plaintiff’s physician are inferentially supportive of this contention. With that in mind, we cannot say that summary judgment was proper.

In the event plaintiff can in fact prove, by competent evidence, the pelvic kidney did not pre-exist within the meaning of the policy, a genuine issue of a material fact will exist. We say that even though the operation was clearly not performed because of the pelvic kidney. In this instance, if the misdiagnosis and resulting surgery were caused by a nonprexisting condition, to wit, the pelvic kidney, coverage may exist.

We believe it appropriate to end this opinion with an extensive quote from Fol-mar, supra :

“The defendant has not precluded the possibility, as a matter of law, that the plaintiff might not prove her case. The fact that she is perhaps unlikely to prevail at trial is not a standard to be applied. . . . The judge need not believe the opposing party’s evidence in order to deny summary judgment. Nor must he feel that a jury would necessarily believe it. . . . The moving party is trying to show that there is no way whatsoever the other party could recover. Thus summary judgment can only be proper ‘where it is clear what the truth is.’ . . This is obviously another way of saying that there must not be a genuine issue as to any material fact. . ” [Emphasis supplied.] (293 Ala. at 691, 309 So.2d at 822)

REVERSED AND REMANDED.

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


text:
    A. J. LINDSEY v. BOARD OF ADJUSTMENT, CITY OF GADSDEN, a Municipal Corporation.
    Civ. 1392.
    Court of Civil Appeals of Alabama.
    May 3, 1978.
    Leon Garmon, Gadsden, for appellant.
    William A. McCrary of Henslee & Bradley, Gadsden, for appellee.
   BRADLEY, Judge.

This appeal is the result of a judgment by the Circuit Court of Etowah County granting appellee’s (defendant below) motion for summary judgment. Appellant (plaintiff below) contends that the circuit court’s dismissal of his action deprived him of the opportunity to appeal the final judgment or decision of a board of zoning adjustment as provided in Title 11, chapter 52, section 81, Code of Alabama 1975 (formerly Title 37, section 788, Code of Alabama 1940 [Recomp. 1958]).

In June of 1977 Mr. H. M. Freeman requested that the appellee (the Board of Adjustment for the City of Gadsden) permit the operation of a United States Army Reserve facility in an unused elementary school which was located in an area zoned for one family residences. Notice of a proposed hearing on Freeman’s request was subsequently published in the Gadsden Times and on June 30, 1977 a hearing on the matter was held by the Board of Adjustment. At the completion of the hearing the Board granted Freeman’s application for a zoning variance.

On July 13, 1977, within fifteen days after the Board’s decision to grant a variance, four persons filed an appeal to the circuit court in an effort to have the decision of the Board .reversed. All four of these persons subsequently withdrew as parties to the appeal. However, on October 19, 1977, the date of the last of the original four persons’ withdrawal from the case, the appellant (A. J. Lindsey) filed a motion requesting that he be included as a plaintiff in the suit for the purpose of continuing the original plaintiffs’ appeal to the Etowah County Circuit Court. Two days later the circuit court dismissed the original plaintiffs and agreed to Lindsey’s request, stating, “The motion of A. J. Lindsey, to be added as a plaintiff be and the same is granted.” Thus, Lindsey became the only party seeking a reversal of the Board’s decision to grant a zoning variance.

Shortly after Lindsey became a party to the appeal of the decision by the Gadsden Zoning Board, the Board filed a motion for summary judgment on the ground that there was no genuine issue as to any material fact and that defendant (the Board of Adjustment) was entitled to a judgment as a matter of law. The grounds on which the Board’s motion was based were essentially two-fold. First, the Board asserted that Lindsey’s suit was a separate and distinct cause of action from that of the four initial plaintiffs. Second, the Board argued that the fifteen day limitation period for appealing a decision by the Board had expired when Lindsey entered the suit in question. Attached to the Board’s motion for summary judgment was a memorandum of law which was premised on the contention by the Board that there could not be a complete substitution of parties in a case once the applicable statute of limitations had run.

Based on the Board’s motion and the memorandum submitted in support thereof, the circuit court granted a summary judgment on behalf of the Board of Adjustment for the City of Gadsden and dismissed Lindsey’s suit. From that judgment Lindsey brings this appeal.

We believe that the circuit court properly granted the Board’s motion for summary judgment and therefore affirm.

A motion for summary judgment should be sustained where there is no doubt as to the resolution of a question so essential that the party against whom it is resolved cannot prevail. Fishman v. Teter, 133 F.2d 222 (7th Cir.1943). Moreover, a person seeking judicial review of a decision by an administrative body — such as a zoning board — must initiate his or her appeal within the period of time prescribed by statute. 73 C.J.S. Public Administrative Bodies and Procedure § 193. Otherwise, the court appealed to will not review the decision of the administrative body. 73 C.J.S. Public Administrative Bodies and Procedure § 194.

Title 11, chapter 52, section 81, Code of Alabama 1975, requires that a party aggrieved by a final judgment or decision of a zoning board must appeal to the circuit court within fifteen days of the board’s decision. Lindsey admittedly did not comply with this requirement. In addition, section 81 provides that written notice specifying the judgment or decision appealed from must be filed with the board. The record demonstrates that Lindsey also failed to adhere to this provision since no written notice of appeal was filed with the Gadsden Board of Adjustment. These statutory provisions were mandatory, and without complying with them there existed no basis on which Lindsey could prevail against the Board’s motion for a summary judgment. Consequently, the circuit court correctly dismissed Lindsey’s action under Rule 56, ARCP.

Despite this fact, Lindsey attempts to avoid the mandates of section 81 by asserting that a defendant cannot invoke a statute of limitations solely because a new plaintiff is added to or substituted in a suit as Lindsey was in this instance. Manning v. Zapata, Ala.Civ.App., 350 So.2d 1045 (1977). Furthermore, Lindsey argues that his entrance into the proceeding appealing the Board’s decision to the circuit court constituted an amendment of parties in that it added a new plaintiff to the action, and as such, the amendment related back to the initiation of the appeal by the original plaintiffs. The original plaintiffs filed their appeal within the fifteen day limitation period provided in section 81. Accordingly, Lindsey contends that his right to appeal to the circuit court was not barred by the fact that he failed to file his appeal within fifteen days of the Board’s decision. We do not agree.

Our holding in Manning v. Zapata is not applicable to the present case. The question before us is whether the time limit set out in section 81 bars Lindsey’s appeal to the circuit court.

Because the legislature provided a right to appeal in zoning board cases which did not exist at common law, the fifteen day time limit for appealing a board’s decision is jurisdictional in nature rather than procedural. The statute which created the right to appeal from a decision or judgment by a zoning board fixed a time within which such an appeal must be taken; accordingly, the time provision is the essence of the action and the limitation thereon affects both the remedy and the right to appeal. See B. F. Goodrich Co. v. Parker, 282 Ala. 151, 209 So.2d 647 (1967); Nicholson v. Lockwood Greene Engineers, Inc., 278 Ala. 497, 179 So.2d 76 (1965); Parker v. Fies & Sons, 243 Ala. 348, 10 So.2d 13 (1942). Thus, compliance with the fifteen day time period within which appeals must be filed is a condition precedent to the right to maintain an appeal to the circuit court. Lindsey failed to comply with this time limitation. And in view of the fact that the time provision of section 81 was jurisdictional, this court is not at liberty to alter or enlarge that period by resorting to the Alabama Rules of Civil Procedure.

Consequently, the circuit court’s judgment granting the motion of the Board of Adjustment for summary judgment on the grounds that Lindsey failed to file an appeal within fifteen days of the Board’s decision to grant a variance is affirmed.

AFFIRMED.

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

      . Title 11, chapter 52, section 81 provides in applicable part:
      “Any party aggrieved by any final judgment or decision of such board of zoning adjustment may within 15 days thereafter appeal therefrom to the circuit court by filing with such board a written notice of appeal specifying the judgment or decision from which the appeal is taken.”

      . Lindsey’s motion was denominated a “Motion to Add Plaintiff” and contained the following language: “Comes now A. J. Lindsey in the above styled cause and requests that his name be added as Plaintiff in the matter.” The Board of Adjustment did not challenge the sufficiency of Lindsey’s motion nor did it move to strike his motion to add. Accordingly we will not examine the adequacy of this motion on appeal. However, we would again repeat that under Rule 7(b)(1), ARCP, a motion “shall state with particularity the grounds therefor, and shall set forth the relief or order sought.” See O’Donohue v. Citizens Bank, Ala.Civ.App., 350 So.2d 1049 (1977).

      . We noted in Manning v. Zapata that an amendment adding a new plaintiff to a case relates back to the filing of the original plaintiffs suit provided the defendant is not prejudiced by the substitution of the old plaintiff for the new. As long as the claims arise from the same transaction or occurrence, and the defendant is fully apprised of a claim arising from specified conduct, and the old and new parties have an identity of interest due to the fact that their relationship in regard to the litigation (as well as their legal positions) is sufficiently analogous, the relation back will not be deemed prejudicial.


text:
    Charles GOODWIN v. Margaret Griffin GOODWIN.
    Civ. 1402.
    Court of Civil Appeals of Alabama.
    May 3, 1978.
    J. N. Powell, Jr., Decatur, for appellant.
    Ralph E. Slate, Decatur, for appellee.
   BRADLEY, Judge.

This appeal is from a final divorce decree and division of property rendered by the Circuit Court of Lawrence County. After the procedural phase of the divorce action, a hearing was held ore tenus and the circuit court divorced the parties on the grounds of incompatibility of temperament. The court ordered that the couple’s jointly-owned property be partitioned and sold, and that the proceeds from the sale be divided equally between the parties. The court allowed the wife (Margaret Goodwin) to retain the automobile which she used during the marriage. In addition, she was awarded all of the money contained in the parties’ joint savings account. At the time of the divorce the savings account contained $2,027.33. The husband (Charles Goodwin) received the mobile home in which the couple had resided prior to their divorce. He was also awarded the household furnishings and all the farming equipment used in his part-time farming operation. From the trial court’s decree the husband appeals, contending that the division of the common estate of the parties was arbitrary and excessive.

The record before us discloses that the parties were married in 1971. Their marriage did not produce any children. During the course of their marriage both the husband and wife worked at employment outside of the home. In November of 1973 they purchased eighty-seven acres of farmland. Both parties contributed to the purchase price of this land and they held it in joint ownership.

After the purchase of this property the husband began to work at two jobs. He farmed the land during the day and at night he worked the second (or third) shift at a factory. The fact that the husband worked long hours prevented him from spending very much time with his wife. She was unhappy with this situation and began to see another man, although there was no competent testimony or evidence to indicate that she did anything with this man but discuss her marital problems.

The strain of the husband’s work habits and the fact that his wife told him of her meetings with the other man eventually caused the couple to decide to obtain a divorce. Pursuant to this decision, the wife agreed to sell her one-half interest in the eighty-seven acres of property to her husband for $3,000. The couple entered into an agreement to this effect at their lawyer’s office and the divorce papers and deed conveying the wife’s interest in the property to her husband were completed and signed. Shortly thereafter, however, the parties reconciled and began to live together again as husband and wife.

Once they re-established their marital relationship, the husband telephoned his attorney’s office in an effort to determine if the divorce was effective. He was informed by an employee at the lawyer’s office that the divorce papers and the deed would be destroyed and that neither he nor his wife needed to take any further action in order to regain their relationship as husband and wife.

Despite their reconciliation, the parties continued to experience marital difficulties. These problems were due in large part to the husband’s inability to forgive his wife for what he believed to be her “affair” with the man she had been meeting prior to their original breakup. Consequently, by the summer of 1976 the couple was once again contemplating divorce.

In addition to their marital difficulties, the wife learned approximately eleven months after their attempted reconciliation that the husband had not had the original divorce agreement set aside and that he still held sole ownership to the eighty-seven acre tract of land despite the fact that he had never paid his wife the $3,000 purchase price for her half interest in that tract.

The husband’s position on this appeal is that the wife conveyed her interest in the couple’s jointly-owned property to him pursuant to an agreement made in conjunction with their original divorce. Thus, he argues that the trial court’s action in awarding the wife a one-half interest in the property upon the termination of the parties’ marriage for the second time was arbitrary and constituted an excessive property division. The husband also contends that the trial court erred in declaring that the deed conveying the wife’s interest in the eighty-seven acre tract was void and in its finding that the property was still jointly-owned by the husband and the wife. However, we cannot accede to any of the husband’s contentions.

Regardless of whether the trial court voided the conveyance of the wife’s interest in the property, the court in granting the divorce had the authority to make a property division between the parties or award the wife alimony in gross. And such action by the court was a matter within its discretion according to the circumstances of the case. Davis v. Davis, 274 Ala. 277, 147 So.2d 828, 1 A.L.R.3d 1 (1962). Moreover, a property division or award of alimony in gross will not be revised or reversed on appeal in the absence of palpable abuse of the trial court’s discretion. Mitchell v. Mitchell, Ala.Civ.App., 351 So.2d 602 (1977). In the instant case, the trial court ultimately determined that the wife was entitled to one-half the proceeds from the sale of the eighty-seven acre tract of land. From the record before us we are not persuaded that the court’s decision in dividing the property in this manner constituted a palpable or clear abuse of its discretion. Accordingly, we affirm the judgment of the trial court and the property division made thereunder.

The wife has moved this court to award an attorney’s fee for the services performed by her attorney in defending the appeal brought by her former husband. We consider $300 to be a reasonable fee in this matter and thereby award the wife’s attorney the sum of $300 for the services performed on behalf of his client, Margaret Goodwin.

AFFIRMED.

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


text:
    Elizabeth SLOVENSKY v. BIRMINGHAM NEWS COMPANY, INC., a corporation; the Birmingham News Company, a wholly owned subsidiary of Newhouse Publishing Company, Inc., a corporation.
    Civ. 1405.
    Court of Civil Appeals of Alabama.
    May 3, 1978.

      Robert R. Kraeke, Birmingham, for appellant.
    James C. Barton and Henry J. Swedlaw, Birmingham, for appellee, Birmingham News Co.
   HOLMES, Judge.

This is an appeal from the Circuit Court of Jefferson County’s action granting the defendant’s motion for summary judgment. The plaintiff appeals and we affirm.

The dispositive issue on appeal is whether the plaintiff, in her complaint, states a claim upon which relief could be granted under the law of Alabama. The trial judge, in granting summary judgment as indicated above, determined no such claim was stated. We agree.

The record reveals that the plaintiff’s husband was employed by the Birmingham News Company in 1976. In May of 1976, the plaintiff’s husband was discharged from his employment. As a result of an arbitration decision, pursuant to a contract between the plaintiff’s husband’s union and the defendant, the plaintiff’s husband was reinstated to his job. Additionally, the plaintiff’s husband was awarded back pay of over $9,000. The award and reinstatement occurred in December of 1976.

In March of 1977, the plaintiff, the wife of the discharged employee, filed a three count complaint against the husband’s employer, the Birmingham News Company. We deem it appropriate to set out this complaint as filed:

“COMPLAINT
“COUNT ONE
“1. Plaintiff claims of the defendants, the sum of TEN THOUSAND ($10,-000.00) DOLLARS as damages for that heretofore on to-wit, May 3, 1976, the defendant did wrongfully discharge plaintiff’s husband and cause plaintiff’s husband to be without work and income for a period of seven months thereby causing plaintiff loss of money and extreme mental anxiety and distress during and as a consequence of this time following wrongful discharge by the defendant.
“WHEREFORE, plaintiff demands judgment against the defendant in the sum of TEN THOUSAND ($10,000.00) DOLLARS, interest and costs.
“COUNT TWO
“1. Plaintiff claims of the defendants the sum of TEN THOUSAND ($10,-000.00) DOLLARS as damages for that heretofore on to-wit, May 3, 1976, the defendant did wrongfully discharge plaintiff’s husband and cause plaintiff’s husband to be without work and income for a period of seven months.
“2. As a consequence of said wrongful discharge by defendant plaintiff was caused in incur lost interest due to withdrawals from a joint savings account, lost interest from jointly held savings bonds and loss from the forced sale of capital assets; and in addition thereto, plaintiff has suffered severe mental anxiety and distress causing her to lose sleep, to be nervous, upset and insecure due to the financial plight and grave economic hardship brought about by the wrongful dismissal of plaintiff’s husband.
“WHEREFORE, plaintiff demands judgment against the defendant for the sum of TEN THOUSAND ($10,000.00) DOLLARS, interest and costs.
“COUNT THREE
“1. On or about the 27th day of December, 1974, plaintiff’s husband and defendant entered into a written employment agreement by which defendant promised to employ plaintiff’s husband as a Pressman.
“2. Defendant breached the agreement by wrongfully discharging plaintiff’s husband on or about May 3, 1976.
“3. Plaintiff is a third party beneficiary of said contract of employment.
“WHEREFORE, plaintiff demands judgment against the defendant in the sum of TEN THOUSAND' ($10,000.00) DOLLARS, interest and costs.”

The trial court, upon motion by the defendant, granted summary judgment. It is from this action that the plaintiff appeals. The plaintiff, through able and distinguished counsel, contends that the above-mentioned complaint does in fact state a cause of action upon which recovery may be had. The defendant, the Birmingham News Company, contends to the contrary.

As can be seen from the above, Count One claims damages for the wrongful discharge of the plaintiff’s husband sounding in tort and claiming damages for loss of consortium and money, mental anxiety, and distress.

Such a count in Alabama, under the present law which we are bound to follow, does not state a cause of action due to the fact plaintiff is precluded from suing in tort in a situation such as this. Under Alabama law, every action in tort must consist of the existence of a legal duty by defendant to plaintiff; a breach of that duty; and damage to plaintiff as a proximate result of that breach. See Brimingham Slag Division of Vulcan Materials Co. v. Chandler, 45 Ala.App. 406, 231 So.2d 329 (1970).

Count One, to this court, shows that the defendant owed no legal duty to the plaintiff. The plaintiff’s husband had entered into an employment contract with the defendant by way of the husband’s union. The plaintiff’s complaint, as noted above, is premised upon the husband’s wrongful discharge by the defendant in breach of the employment contract.

The law in Alabama is settled in that the contract must have been intended for the direct benefit of the plaintiff, i. e., a third party to the employment contract, as distinguished from a mere incidental benefit, in order to entitle such third person to sue for a breach of the contract. See Anderson v. Howard Hall Company, 278 Ala. 491, 179 So.2d 71 (1965).

The record reveals that the employment contract concerned only the husband, defendant, and the husband’s union. The plaintiff was not involved in the contract and was not intended to be a direct beneficiary of such contract. In view of the above, we cannot say that the defendant owed the plaintiff such a legal duty as to support a claim in tort.

In any event, the action arising from an employee’s wrongful discharge is in contract and not in tort, unless the discharge is accompanied by other wrongful conduct amounting to a tort or involved a breach of a duty imposed by law. See Harris v. Board of Water & Sewer Com’rs of Mobile, 294 Ala. 606, 320 So.2d 624 (1975); Lambert v. Jefferson, 251 Ala. 5, 36 So.2d 594 (1948); 1 C.J.S. Actions § 49e(8); 56 C.J.S. Master and Servant § 50.

The record reveals no wrongful conduct accompanying the discharge constituting a tort nor did the discharge breach any duty imposed by law owed to the plaintiff on the part of the defendant.

The plaintiff’s complaint additionally seeks damages in the form of consortium and mental distress.

Recently, the Supreme Court of Alabama, in Swartz v. United States Steel Corp., 293 Ala. 439, 304 So.2d 881 (1974), held that a wife has a cause of action for the loss of her husband’s consortium caused by the tortious act of a third party. However, such a recovery of consortium is premised upon a physical injury suffered by the spouse. See Swartz v. United States Steel Corp., supra; Harden v. Alabama Great Southern R. Co., 45 Ala.App. 301, 229 So.2d 803 (1969).

As noted above, the present case solely revolves around the breach of an employment contract by a wrongful dismissal of the plaintiff’s husband. Such an action will not support a claim of consortium due to the absence of a physical injury.

Concerning mental anxiety or distress, the law in Alabama does not permit recovery for mental distress suffered because of a wrong to another. See Tyler v. Brown-Service Funeral Homes Co., 250 Ala. 295, 34 So.2d 203 (1948). Furthermore, no recovery has ever been allowed for mental distress arising from the wrongful discharge of an employee in breach of an employment contract. See 7A Ala. Digest Damages <®=51.

Count Two claims damages for the wrongful discharge of the plaintiff’s husband. This count is essentially the same as Count One and is bottomed on the same theory of recovery. As noted above, this count will not support a cause of action in Alabama.

Lastly, Count Three claims damages for breach of contract of the plaintiff’s husband’s employment contract and seeks damages for loss of consortium. As noted in Anderson v. Howard Hall Co., supra, one not a party to a contract can sue for the breach of such contract only when the contract has been intended for the direct benefit of that third party. See also 5 Ala. Digest Contracts <3=186(1), 187(1).

Clearly, the record indicates that the plaintiff was not intended to be a direct beneficiary of the employment contract and would be merely an incidental beneficiary at most.

As initially noted, the plaintiff’s appeal is from the trial court’s granting of the defendant’s motion for summary judgment.

A summary judgment may be granted only when it is shown that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. See Fox v. Guaranty & Abstract Co. of Mobile, Inc., Ala., 337 So.2d 1300 (1976).

In the present case, there was no dispute as to any material fact. Furthermore, in view of the above, it is clear to this court that the defendant was entitled to judgment as a matter of law in that plaintiff stated no cause of action.

The above being dispositive of the issues in this case, the trial court is due to be and ■ is hereby affirmed.

AFFIRMED.

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


author: DeCARLO, Judge.

text:
    James E. BANKS v. STATE.
    3 Div. 777.
    Court of Criminal Appeals of Alabama.
    Feb. 7, 1978.
    Rehearing Denied March 7, 1978.

      Randolph P. Reaves, Montgomery, for appellant.
    William J. Baxley, Atty. Gen., and Mary Jane LeCroy, Asst. Atty. Gen., for the State.
   DeCARLO, Judge.

Carnal knowledge; ten years.

The grand jury of Butler County indicted James E. Banks for carnally knowing, or abusing in the attempt to carnally know, the prosecutrix, a girl under the age of twelve years.

Counsel was appointed to represent the appellant at arraignment and trial. After a jury trial the appellant was convicted and sentenced to ten years. He is now represented by new appointed counsel and is before this court with a free transcript.

James Banks had been living with his sister, her husband, and their four children, for over two years. Banks’s eleven year-old niece, one of his sister’s four children, was the victim of the carnal knowledge.

December, 1976, the prosecutrix was staying home from school because she had cut her foot and was unable to walk. On the morning of the assault she was awakened by her mother. She dressed in a purple dress and lay down in her mother’s bedroom to watch television. The prosecu-trix’s father had gone to work earlier that morning and the appellant, her uncle, had left shortly afterwards. The prosecutrix’s mother left around 10:00 A.M.

Prosecutrix stated that the appellant came home “a long time before my mama came home.” He took off his shirt and shoes and lay down. The prosecutrix went into her bedroom and the appellant followed. He took off his pants, ripped the buttons from the front of the prosecutrix’s dress, removed her underwear and had sexual intercourse with her. Afterwards he gave her a dollar and told her not to tell her parents or he would kill her.

The prosecutrix’s parents returned home around 1:30 P.M. They saw that the prose-cutrix’s dress was torn and wrinkled. When her mother inquired what had happened, she did not reply. At that point, her father whipped her and she told him that her uncle had raped her and afterwards had given her a dollar. According to the prose-cutrix the reason she had not told them earlier was because the appellant had said that he would kill her.

That same afternoon the prosecutrix was taken to a doctor who examined her. During the trial he testified that spermatozoa was found in the vaginal vault. Further, he said that it was his opinion that this incident was not the first time she had engaged in sexual intercourse.

At the completion of the State’s case, no motion to exclude was made by the defense. The appellant was then called to testify in his own behalf.

He denied having intercourse with the girl, giving her a dollar or threatening her. Further, Banks said that he had been drinking during the morning and after going to bed he did not remember anything until an officer came to arrest him.

I

The only insistence of error made by the appellant is that the prosecutrix was allowed to give details of her complaint which constituted reversible error.

Appellant cites the following portion of the record claiming it demonstrates that the prosecutrix testified concerning the details of the complaint made to her parents following the alleged sexual intercourse.

“Q. And, he said that he would kill you if you said anything?
“A. Yeah, then he left.
“Q. James Banks left?
“A. Yes.
“Q. Alright, what did you do, Pamela?
“A. Then I run out of the house, and my mama, then I got up and — cleaned up, and I hopped around and got my clothes on, then my mama and daddy come home.
“Q. Alright, you said that your mama could tell that you were not right, is that what you said?
“A. Well, when she came home.
“Q. When she came home?
“A. Yeah.
“Q. After she came home did you tell her what happened?
“A. No, sir.
“Q. Alright, when did you tell her what happened?
“A. When she called my daddy, and he whooped me, and I was scared to tell, but I told them.
“Q. You say your daddy whipped you, and you told him then?
“A. Yes, sir.
“Q. Alright, now, why were you scared? Why were you scared to tell, Pamela? “A. Because James said he would kill me.
“Q. Because James Banks said he would kill you?
“A. Yes, sir.”

Direct examination is confined to the fact that a complaint was made. However, the details of the occurrence, including the identity of the person accused, are not proper subjects of inquiry. Lee v. State, 246 Ala. 69, 18 So.2d 706. In the above cited portion of the transcript, we see that what the prosecutrix stated in her testimony was indeed confined to the fact of a complaint. Lee v. State, supra; Biggs v. State, Ala.Cr.App., 331 So.2d 763. See Thompson v. State, 53 Ala.App. 484, 301 So.2d 248.

Further, an examination of the foregoing portion of the record clearly shows that no objection was interposed during the time the prosecutrix was giving her testimony. It is our judgment that the prosecutrix’s testimony was admissible in that it was confined to the fact that a complaint was made. However, had it been inadmissible there would be no preservation of the error because no objection was made. See Biggs v. State, supra; Moody v. State ex rel. Payne, 295 Ala. 299, 329 So.2d 73; Oatsvall v. State, 57 Ala.App. 240, 327 So.2d 735; Willingham v. State, 261 Ala. 454, 74 So.2d 241.

II

At the conclusion of the court’s oral charge to the jury, the defendant, as well as the State, announced that they were satisfied with the court’s instructions to the jury.

The defendant requested twenty-four written charges, eight of which were read to the jury, of the remaining sixteen, three were affirmative in nature and the others were covered by the court’s oral instructions. Kennedy v. State, 291 Ala. 62, 277 So.2d 878; Kemp v. State, 278 Ala. 637, 179 So.2d 762.

We have read and examined this entire record and have found no error prejudicial to this appellant.

AFFIRMED.

All the Judges concur.


author: BEATTY, Justice.

text:
    In re James E. BANKS v. STATE of Alabama. Ex parte James E. Banks.
    77-396.
    Supreme Court of Alabama.
    April 28, 1978.
    Randolph P. Reaves, Montgomery, for petitioner.
    None for the State.
   BEATTY, Justice.

The petition for writ of certiorari to the Court of Criminal Appeals, 358 So.2d 477 is denied.

The denial of the writ should not be construed as an approval of the conclusion of the Court of Criminal Appeals that the prosecutrix’s complaint contained references neither to the details of the offense nor to the identity of the accused. Our denial is based upon the rule of review contained in Willingham v. State, 261 Ala. 454, 74 So.2d 241 (1954).

WRIT DENIED.

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


author: LEIGH M. CLARK, Retired Circuit Judge.

text:
    Marvin Ray VINING v. STATE.
    6 Div. 227.
    Court of Criminal Appeals of Alabama.
    Feb. 21, 1978.
    Rehearing Denied April 4, 1978.

      Anthony D. Snable, Pleasant Grove, for appellant.
    William J. Baxley, Atty. Gen., and Barry V. Hutner, Asst. Atty. Gen., for the State.
   LEIGH M. CLARK, Retired Circuit Judge.

This is an appeal from a conviction of murder in the first degree and a sentence of imprisonment for life.

According to the undisputed evidence, Claudia Mable Coleman was killed by a shot fired from a .38 caliber pistol while it was in the right hand of defendant. She was the mother of Linda Sue Vining, the former wife of defendant. They had been divorced from each other about nine months at the time of the alleged homicide. Defendant had gone to the home where his former wife was living with her sister, next door to the home of their mother, about 3:00 A.M. November 9, 1975, and had created quite a disturbance in an effort to get his wife to resume their marital relationship. She did not grant him admittance to the house where she was living, and he commenced shooting into the house; his former wife returned the fire with a .22 pistol.

According to the testimony of defendant, Mrs. Coleman came to him from her house in an effort to dissuade him from his violence and at the same time give him some hope for a reconciliation between him and his former wife; he shoved Mrs. Coleman away, but she fell backward and the gun went off. He denied intentionally shooting her. He said there were details about the matter that he did not recall; that he had been taking medication for pain by reason of a tooth that he had had extracted and had drunk from fifteen to twenty beers during the twelve or thirteen hours prior to his going to the home of his ex-wife the night of her mother’s death.

Defendant’s former wife testified that while her mother was attempting to get defendant to leave and not continue the disturbance, defendant shouted to his former wife that if she didn’t come out of the house, he was going to shoot her mother.

The evidence presented a jury issue as to defendant’s guilt, and there is no contention to the contrary.

Appellant’s only insistence on error is as to the court’s ruling during defendant’s interrogation of a witness whom defendant had called as a character witness. The ruling is contained in the record as follows:

“Q Mr. Vines, can you testify as to his general reputation in the community?
“A Ray’s reputation was good.
“Q Can you testify as to his reputation in the community for truth and veracity?
“A It was good. He was very truthful.
“MR. JOHNSON: I object to him adding anything.
“THE COURT: That’s enough.
“Q Can you testify as to reputation in the community for peacefulness?
“A It is good.
“MR. JOHNSON: I object to that because self-defense is not an issue, it hasn’t been placed in issue.
“THE COURT: Sustained. .
“MR. SNABLE: That’s all I have, Your Honor.
“MR. JOHNSON: No questions.
“THE COURT: Step down.”

We agree with appellant that the ground assigned by the State to the objection to the question with reference to defendant’s reputation in the community for peacefulness was not a valid ground of objection. Beaird v. State, 215 Ala. 27, 109 So. 161 (1926). On the other hand, aside from the question whether the court was justified in sustaining the State’s objection on general grounds or on specific grounds not stated, no injury to defendant resulted from the ruling as the question was answered by the witness, and it remained as a part of the evidence in the case. In Phoenix Ins. Co. of N.Y. v. Leonard, 270 Ala. 427, 119 So.2d 217 (1960), it was held that where a witness had already answered questions before objection was made to questions, there was no harmful error in sustaining the objection. In Campbell v. Laningham, 274 Ala. 138, 143, 145 So.2d 824, 827 (1962), the court said:

“ . . . The jury being present, and the witness answering before objection, there could be no harmful error in sustaining the objection. . . . ”

We find no error in the record prejudicial to defendant, and the judgment of the trial court should be affirmed.

The foregoing opinion was prepared by Retired Circuit Judge Leigh M. Clark, serving as a judge of this Court under the provisions of § 6.10 of the New Judicial Article (Constitutional Amendment No. 328). His opinion is hereby adopted as that of the Court.

Affirmed.

All the Judges concur.


author: ALMON, Justice.

text:
    Ex parte Marvin Ray VINING.
    77-460.
    Supreme Court of Alabama.
    May 19, 1978.
   ALMON, Justice.

WRIT DENIED.

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


author: BOOKOUT, Judge.

text:
    James Wendell HARRIS v. STATE.
    8 Div. 959.
    Court of Criminal Appeals of Alabama.
    March 7, 1978.
    Rehearing Denied April 4, 1978.

      Donald E. Holt and Joe M. Patterson, Jr., Florence, for Holt, McKenzie, Holt & Patterson, for appellant.
    William J. Baxley, Atty. Gen., and Milton E. Belcher, Asst. Atty. Gen., for the State.
   BOOKOUT, Judge.

Arson, second degree; sentence: eight years imprisonment. ^

Around 2:00 A.M. on November 20, 1976, the Lauderdale County Jail caught on fire and was substantially damaged. The defendant, who was a prisoner in the jail at that time, was indicted, tried, and convicted for willfully setting fire to the jail.

The State’s case was based largely on circumstantial evidence. The appellant made timely motions to exclude the State’s evidence at the conclusion of the State’s case and again at the end of the trial contending, inter alia, that the State failed to make out a prima facie case against the appellant. The trial court overruled the motions.

At about twelve o’clock on the night of November 19, appellant was arrested for driving while intoxicated and running through a police roadblock. He was taken to the Killen Police Station for a P.E.I. test and then to the Lauderdale County Jail. He was placed in a padded cell because of his threats to hang himself. He also repeatedly threatened to burn the jail if he was not taken to a doctor.

Appellant was searched several times before he was placed in the padded cell. He was first searched at the scene of his arrest on the highway. It was a brief pat-down search designed only to locate any weapon which he may have had on his person. Appellant was searched a second time by Officer Jackson in the booking room of the Lauderdale County Jail. It also was a pat-down search which Officer Jackson described as being a good going over of appellant’s pockets and clothing from the outside to see if he had any weapons, things of value, or something with which he might hurt himself. All of appellant’s personal belongings, including his belt, money, cigarettes, and possibly his matches, were placed in an envelope for safekeeping.

Appellant was searched a third time by the jailer, Officer Wilkes. He testified that he shook the appellant down by checking his head and shoulders, his neck to see if he had a medallion or chain, and then down along the sides of his chest from his armpits to his waist. Mr. Wilkes stated that he stuck his thumbs into the waist of appellant’s pants and went around him and checked each leg and also under the crotch.

Appellant was searched one last time before he was placed in the padded cell. He was instructed to take off his boots. Officer Wilkes shook them upside down and felt inside them and checked appellant’s socks. However, Officer Jackson stated that they never searched appellant’s underwear.

There were eight or ten people in and out of the booking room at the time appellant was there. Apparently one of them gave appellant a cigarette when Officer Jackson and Officer Wilkes were not looking. Officer Wilkes made appellant extinguish the cigarette before he was locked up. Officer Jackson said that he did not pay close attention to the appellant while they were in the booking room.

The padded cell, in which appellant was placed, was approximately 10 by 12 feet wide and 9 or 10 feet high. The pads on the wall were 14 to 18 inches thick. They were suspended all around the room from a 4 inch beam which was attached to the wall about 6 feet above the floor. The wall above the pads was made of concrete block, and the ceiling was made of plaster. The floor was concrete with a drain in the center. The door was steel and had a 14 by 6 inch port hole which was open. There was one recessed light in the center of the ceiling. There was nothing else in the cell except a rubber mat on the floor.

The light in the ceiling was similar to the lights in other parts of the jail. There had been some electrical problems with several of the lights in the bullpen, but there was never any known problem with the light in the padded cell. The light bulb had only been changed a few times in the ten years that the cell had been used. The light fixture had never been personally inspected by any of the witnesses. The fire marshal admitted on cross-examination it was possible that the heat around the wires in the fixture might have become so intense that the fixture’s plastic cover might have melted. There were no wires hanging down below the fixture after the fire, and the photographs admitted into evidence showed that the fixture was intact except for the cover.

The light in the cell had been on before Officer Wilkes went to prepare the cell for the appellant. The light was still on when appellant was placed in the cell and also when Officer Jackson checked on the appellant at 1:30 A.M. The testimony is not clear as to whether the light was on when Officer Wilkes pulled appellant out of the burning cell. The fixture’s cover and light bulb were destroyed in the fire.

The fire marshal testified that padding on the walls was highly flammable. He said that the cell was totally burned up by the fire, and there was no way for him to tell how the fire started or which part of the cell got the greatest amount of heat. He did say that the padded cell was the source of the fire in the jail.

Officer Wilkes was the only officer on duty that night to look after the prisoners, the telephone, and the radio. He could not see the padded cell from the radio room and could not see if anyone visited the appellant. He, in fact, did not see Officer Jackson when he checked on the appellant at 1:30 A.M.

Other than police officers, the only persons who had access to the padded cell were the trustees. Four were on duty that night. There was conflicting testimony as to whether their cells were locked. Officer Wilkes, the jailer, said the trustees’ cells were not locked. The trustees may have been asleep. Both Officers Jackson and Wilkes said that appellant asked them for cigarettes when they checked on him.

I

The appellant contends that the State’s evidence was insufficient to support his conviction for arson. Appellant raised the issue in his motion for a new trial and motions to exclude the State’s evidence.

When the sufficiency of the evidence is in question, it is the.court’s duty to determine if there was legal evidence from which the jury could by fair inference find guilt. Morton v. State, Ala.Cr.App., 338 So.2d 423 (1976); Creel v. State, 53 Ala. App. 504, 301 So.2d 267 (1974). If there is such evidence, the jury’s verdict should be upheld. Scroggins v. State, Ala.Cr.App., 341 So.2d 967 (1977); Trussell v. State, 57 Ala.App. 109, 326 So.2d 301 (1976). This court does not decide whether the evidence is believable beyond a reasonable doubt and to a moral certainty, Trussel, supra, nor does it resolve conflicts in the evidence, Morton, supra.

The evidence is sufficient if the corpus delicti is proved. Speegle v. State, 51 Ala.App. 504, 286 So.2d 914 (1973).

“In arson the corpus delicti consists first of a building burned; and second, that it was wilfully fired by some responsible person . . . and the guilt of defendant may be proven by circumstantial evidence as well as by direct evidence. .” (Citations omitted.) Whatley v. State, 37 Ala.App. 706, 75 So.2d 182 (1954).

Circumstantial evidence is sufficient as long as it is so strong and cogent as to show the defendant’s guilt to a moral certainty and does not fairly permit an inference consistent with the defendant’s innocence. Tanner v. State, 291 Ala. 70, 277 So.2d 885 (1973); Hollenquest v. State, 290 Ala. 146, 274 So.2d 613 (1973); Whatley, supra; James v. State, 22 Ala.App. 183, 113 So. 648 (1927). Circumstantial evidence in arson cases is “ ‘necessarily often of a negative character; that is, the criminal agency is shown by the absence of circumstances, conditions, and surroundings indicating that the fire resulted from an accidental cause.’ ” Speegle, supra, citing State v. Edwards, 173 S.C. 161, 175 S.E. 277 (1934).

Where the evidence is wholly circumstantial or in conflict, motive is a material concern. Jarrell v. State, 35 Ala.App. 256, 50 So.2d 767 (1949), reversed, 255 Ala. 128, 50 So.2d 774, affirmed, 255 Ala. 209, 50 So.2d 776 (1951); Harden v. State, 211 Ala. 656, 101 So. 442 (1924). Motive can be proven by threats. Cunningham v. State, 14 Ala.App. 1, 69 So. 982 (1915).

The circumstances in the present case which tend to connect appellant with the crime charges against him are:

(1) The appellant’s cell was the source of the fire.

(2) The appellant was in the cell when the fire started.

(3) The appellant had the opportunity in the booking room to obtain matches or cigarettes or some other device suitable for starting a fire.

(4) He did receive a cigarette from an unidentified officer while he was in the booking room.

(5) He could have hidden matches or cigarettes or some other incendiary device in his underwear which was never searched.

(6) He asked for cigarettes while he was in his cell and might have been given one by an officer or one of the four trustees who had access to his cell.

(7) The jailer, who was the only person on duty in the jail, could not see the cell from the radio room.

(8) The padding in the cell was highly flammable.

(9) There had never been any problem with the ceiling light in the cell, and the cell had been inspected and approved by the fire inspector about six months prior to the fire. Photographs of the light fixture and testimony concerning the cell’s construction show that the light was embedded in the middle of a solid concrete ceiling. The light fixture was nowhere near the flammable padding, and the jury could have reasonably concluded that the light fixture had no connection with the cause of the fire.

(10) The appellant repeatedly threatened to burn the jail unless the officers took him to a doctor.

The first nine circumstances above would probably be sufficient, standing alone, to support an arson conviction. However, when coupled with the appellant’s threats to burn the jail, the inferences therefrom were sufficient to establish a prima facie case against him. Therefore, there was no error in submitting the case to the jury and in refusing to grant a new trial for insufficiency of the evidence. Morton, supra; Street v. State, 39 Ala.App. 190, 96 So.2d 680 (1957).

II

The appellant took no exception to the oral charge of the trial court. However, he contends that the trial court erred in refusing to give the following written requested charges:

“9. The Court charges the jury that the evidence in this case is partially circumstantial, and his innocence must be presumed by the jury until his guilt is established by the evidence, in all the material aspects in the case, beyond a reasonable doubt and to a moral certainty.”
“16. The Court charges the jury that a person charged with a felony should not be convicted, unless the evidence excludes to a moral certainty every reasonable hypothesis but that of his guilt; no matter how strong the circumstances are, they do not come up to the full measure of proof which the law requires, if they can be reasonably reconciled with the theory that the Defendant is innocent.”
“18. The Court charges the jury that part of the evidence in this case is circumstantial, and the Defendant’s innocence must be presumed by you until the case is proven by the State against the Defendant in all material aspects and unless you so find from the evidence you cannot convict the Defendant.”
“19. The Court charges the jury that the evidence in this case is circumstantial, and his innocence must be presumed by the jury until his guilt is established by the evidence, in all the material aspects in the case, beyond a reasonable doubt and to a moral certainty.”

If an oral charge is not as comprehensive as a party desires, then written requested instructions should be tendered to the trial judge which explain that party’s theory of the case. Bowens v. State, 54 Ala.App. 491, 309 So.2d 844 (1974), cert. denied, 293 Ala. 746, 309 So.2d 850.

Charges 9 and 19 are elliptical. Neither of those charges refers to “defendant’s” guilt or innocence, but merely to “his” guilt or innocence.

“An ‘ellipsis’ is an omission from a construction of one or more words which are evidently understood but must be supplied to make the expression grammatically correct, or is the omission of words that are easily understood that are not necessary to express the meaning, but that are necessary for grammatical completeness. . .” 14 Words and Phrases Ellipsis p. 360; State v. Staub, 182 La. 1040, 162 So. 766 (1935). -

Thus, the use of the word “his” in the two charges may be understood to refer to the defendant, nevertheless standing alone without reference to other charges or to evidence extrinsic of the written charge itself, makes each charge elliptical and ungrammatical. It is not error to refuse to give an elliptical charge or an ungrammatical charge. Allen v. State, 20 Ala.App. 467, 103 So. 712 (1925), cert. denied 212 Ala. 654, 103 So. 713; Owen v. State, 279 Ala. 281, 184 So.2d 362 (1966).

In addition, the principle of law set out in Charges 9 and 19 was fairly and substantially covered in the trial court’s oral charge to the jury concerning the presumption of innocence attending the accused until his guilt was established by the evidence beyond a reasonable doubt and to a moral certainty. Title 7, § 273, Code of Ala. 1940 (§ 12-16-13, Code of Ala. 1975).

The principle of law set forth in Charge 18 was adequately covered in the court’s oral charge concerning the presumption of the defendant’s innocence until the State’s case is proven from the evidence. The proposition of law set out in that charge however is predicated upon the evidence being partially circumstantial in the instant case. There is no direct evidence in the instant case that the appellant set the fire. The correct principle of law applying to the quantity and quality of circumstantial evidence necessary to convict is set out in Ex parte Aeree, 63 Ala. 234 (1879) and has been consistently followed by the courts of this state since that time. The proposition of law set out in Charge 18 is not a correct statement of the principles enunciated in Aeree.

Refused Charge 16 has been approved by the Supreme Court of this state, and the refusal to give that charge has been held to be error in many cases. In Wilson v. State, 243 Ala. 1, 8 So.2d 422 (1942), the Supreme Court reversed the conviction of the appellant based upon insufficient circumstantial evidence. There the death charge was the result of a fire alleged to have been set by the appellant. That court quoted from Aeree, supra, and found that a refused charge, identical to Charge 16 in the instant ease, should have been given. In McCarty v. State, 35 Ala.App. 201, 45 So.2d 175 (1950), this court held that it was reversible error to refuse to give a charge identical to refused Charge 16 in the instant case. The same charge was again approved in Holman v. State, 36 Ala.App. 474, 59 So.2d 620 (1952). It was likewise quoted with approval in Johnson v. State, 42 Ala.App. 511, 169 So.2d 773 (1964) and in Harris v. State, 46 Ala.App. 497, 243 So.2d 770 (1970), however, the refusal to give that charge was held not to be reversible error because so little of the State’s case derived from circumstantial evidence. Such cannot be said of the instant case where the whole of the evidence against the appellant was circumstantial.

It has been the tendency of this court of late to hold that such charges which are mere statements of legal principles, without instruction as to the effect upon or application to the issues, are abstract and may be refused. We have held this to be true even where a correct principle of law is set out. Such decisions have been based upon the longstanding rule in this state that requested instructions tendered in a criminal case should be written in such a form that they are hypothesized on a “belief from the evidence.” A charge not so hypothesized is not predicated upon a consideration of all of the evidence in the case, and its refusal would normally be upheld by this court. Hudson v. State, Ala.Cr.App., 335 So.2d 208 (1976), cert. denied, Ala., 335 So.2d 211; Duchac v. State, 52 Ala.App. 327, 292 So.2d 135, cert. denied, 292 Ala. 251, 292 So.2d 139 (1974).

Regardless of the more recent trend, we are nevertheless bound by the rulings of the Alabama Supreme Court. We find that the identical language of Charge 16 has not only been approved by that court, but the refusal to give’ that charge under circumstances similar to the instant case, amounted to reversible error. Until the Supreme Court rules otherwise, we must follow suit. The appellant is therefore entitled to a new trial.

Reversed and Remanded.

All the Judges concur.


author: FAULKNER, Justice.

text:
    Ex parte STATE of Alabama ex rel. ATTORNEY GENERAL.
    77-448.
    Supreme Court of Alabama.
    May 19, 1978.
   FAULKNER, Justice.

WRIT DENIED.

TORBERT, C. J., and BLOODWORTH, ALMON and EMBRY, JJ.,' concur.


text:
    James RICHARDS v. STATE.
    3 Div. 825.
    Court of Criminal Appeals of Alabama.
    March 21, 1978.
    Rehearing Denied April 18, 1978.
    Frank A. Hickman, Greenville, for appellant.
    William J. Baxley, Atty. Gen., and C. Lawson Little, Asst. Atty. Gen., for the State.
   BOWEN W. SIMMONS, Retired Circuit Judge.

Appellant-defendant, an indigent, was convicted of robbery and sentenced to ten years imprisonment. He appealed from the judgment entry.

It appears from the record that the victim was Mrs. Edna Black who was operating a country store and service station located a few miles distant from Georgiana. The stolen property was about $800.00 in cash.

Mrs. Black’s testimony fully supports the allegation that she was robbed, but she could not identify the two robbers. Mrs. Black closed her store about 6:25 P.M., January 25, 1977. At that time it was already dark. The robbery occurred as she started towards her trailer home. Two men, each wearing a ski mask, accosted her; and by threats and violence, obtained Mrs. Black’s money. During the course of the robbery, Mrs. Black saw a gun. After taking her money, Mrs. Black’s assailants left on foot.

From the glow of a night light, Mrs. Black discerned that one of the robbers was about five feet eight or ten inches tall. Her other assailant was approximately six feet two inches tall. Mrs. Black testified that defendant had been a customer in her store.

Arthur Benson, a witness for the State, testified that on Sunday night before the alleged robbery on Tuesday, June 25, 1977, he saw defendant on the side of the road where his car had broken down; that he loaned him his car to go get a part to go on his car. Defendant agreed to pay him $10.00 for the service and said, “I didn’t do what I wanted to do. I’ll give you the ten dollars on Monday.” Benson stated he saw him on Tuesday and asked him for the ten dollars. He said, “let me use your car about five-thirty,” and I said, T can’t, I got to go to Andalusia,’ and I went on home.”

He saw him on Tuesday in Georgiana. Benson then went home and came back, at which time defendant’s car passed the store. He saw him again after that between the trailer and the chicken house, right at closing time for the store. He recognized defendant’s car, but not defendant in the car.

Chester Thomas, who was in the car with Arthur Benson when he passed defendant in his car a little after six o’clock, about a quarter of a mile from “Miss Edna’s” house, recognized defendant.

Jerry Peagler testified for the State. He knew defendant and identified him in the courtroom. While associated with defendant: “he asked me would I rob.” Peagler told him, “no.” He also testified:

“A. He told me that loggers and everybody come out to Mrs. Black’s Store and cashed checks, and he said he was going to get some of their money.
Q. He told you what?
A. Going to get some of that money.
Q. Told you that he was going to get some of that money?
A. Right.”

Peagler further testified that the next day, or within the next day or so, after the robbery, he saw defendant and had another conversation with him about Mrs. Black. We quote:

“Q. Did you have a conversation with him at that time about Mrs. Black?
A. Yeah.
Q. What was it?
A. He told me an officer had picked him up to tell him something about it, he said he turned them down because he knew he was in it.
Q. Because he was in it himself, and he turned him down?
A. Right.
Q. Did he tell you — did he make any statement to you about where they stood or where they hid, waiting for Mrs. Black to get home?
A. Yeah, they said they hid in the back of the trailer. When she got home they come around.
Q. Did they tell you in which manner that they escaped?
A. Through Long Creek.
Q. Alright, how much were you around James after the day that Mrs. Black was robbed?
A. Oh, I was around him a lots. You know.
Q. Can you tell the Jury whether or not he had a lot of money to spend at that time?
A. Yeah, he had a right smart amount.
Q. And, prior to the time that she was robbed, did he have a lot of money to spend?
A. Not to (sic) much, no.”
* * * * * *
“Q. Did he tell you what car they used?
A. No.
Q. He didn’t, and did he make any threats against you if you testified against him in Court?
A. Yeah.
Q. Tell the Jury what he said?
A. He said if anybody was to testify against him, that he would blow them away.
Q. Blow him away, — ”

The defendant testified and denied that he had anything to do with the robbery of Mrs. Black.

It appears in the record that the witness, Peagler, was arrested for the robbery and held in jail for a short period of time. However, we are unable to find in the record any evidence that said witness was an accomplice in the robbery, or in any way implicated in the offense. He was under suspicion when arrested. But, so far as the record discloses, he was not indicted.

The trial court gave an oral charge that was comprehensive and elaborate; also, he gave sixteen requested written charges for defendant and refused to give thirty-two for defendant.

One of the refused charges was Charge No. 4, which reads:

“D. 4 I charge you that if you have a reasonable doubt of James Richards’ guilt growing out of the evidence or any part of it you must acquit him.”

The late and eminent Judge Carr of this Court, in Sanford v. State, 37 Ala.App. 603, 75 So.2d 109, collated several Alabama Supreme Court decisions, some of which approved a similar charge while others rejected it. The court cited Rakestraw v. State (1924), 211 Ala. 535, 101 So. 181(4), wherein the Supreme Court, speaking through Justice Sayre, held that it was error to refuse written Charge No. 2 for defendant, reading:

“2. If, after considering all the evidence in the case, you have a reasonable doubt as to the guilt of the defendant Jim Rakestraw growing out of any part of the evidence, you should find him not guilty.”

This court in Sanford, supra, and in many other decisions which we list, infra, has followed Rakestraw, supra. Until the Supreme Court of Alabama rules otherwise, we are bound by Rakestraw, as was the case in Sanford. We cite:

Green, 263 Ala. 324, 82 So.2d 418 (423);
Holtbrook, 38 Ala.App. 77, 76 So.2d 349;
Golden, 39 Ala.App. 361, 103 So.2d 52 (59);
Earnest, 40 Ala.App. 344, 113 So.2d 517 (523);
Lockett, 40 Ala.App. 427, 117 So.2d 155;
Tidwell, 40 Ala.App. 580, 118 So.2d 292 (293);
Lanier, 43 Ala.App. 447, 192 So.2d 256 (257);
McAllister, 44 Ala.App. 511, 214 So.2d 862 (867);
Gautney, 284 Ala. 82, 222 So.2d 175 (178); and,
Hicks, 46 Ala.App. 125, 238 So.2d 922 (923).

The refusal of Charge No. 4, supra, necessitates a reversal of the judgment in the instant case and a remand of the case.

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

REVERSED AND REMANDED.

All the Judges concur.


author: BLOODWORTH, Justice.

text:
    Ex parte STATE of Alabama ex rel. ATTORNEY GENERAL.
    77-490.
    Supreme Court of Alabama.
    May 19, 1978.
   BLOODWORTH, Justice.

WRIT DENIED.

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


author: LEIGH M. CLARK, Retire Circuit Judge.

text:
    Curtis MALONE v. STATE.
    4 Div. 568.
    Court of Criminal Appeals of Alabama.
    March 21, 1978.
    Rehearing Denied April 18, 1978.

      J. Earl Smith, Dothan, for appellant.
    William J. Baxley, Atty. Gen., and Milton E. Belcher, Asst. Atty. Gen., for the State.
   LEIGH M. CLARK, Retire Circuit Judge.

Appellant-defendant was charged in an indictment with the embezzlement of $800.00, the personal property of Dynamic Industries, Inc., a corporation. He was found guilty by a jury, and the court fixed his punishment at imprisonment for nine years and sentenced him accordingly.

There is no contention on appeal that the evidence was not sufficient to support the verdict of the jury, and our review of the evidence convinces us that the issue as to defendant’s guilt under the evidence was properly determinable by a jury. For that reason, we will not attempt a recital of any of the evidence other than that which is pertinent to questions of law discussed herein.

The conduct of defendant constituting the alleged embezzlement occurred in May and June 1976 while he was employed as the manager or “supervisor of operations” of five convenience stores in Dothan, Alabama, which were owned by Dynamic Industries (hereinafter referred to as Dynamic) which was based in Ft. Worth, Texas. A large part of the evidence consisted of business records composed chiefly of daily reports filled in by the manager of each particular store, reflecting in detail the supplies bought, the items sold, expenses and other matters showing a profit or loss during the day. The original of each report was sent to the home office of Dynamic in Ft. Worth. In the process of auditing the records at the home office, substantial fiscal discrepancies to the deficit of Dynamic were noted. It was discovered that large sums of money, including the sum of $600 in one day, had been withdrawn from money of Dynamic, as shown by sixteen daily reports. By the testimony of an official of Dothan Beverage Company, a major discrepancy was shown between some of the amounts actually paid to the beverage company and the amounts reflected by the records of Dynamic.

The evidence shows without dispute that on several occasions defendant made withdrawals from the funds on hand of Dynamic. Defendant’s explanation was that the withdrawals were to meet the financial requirements of Dynamic, particularly as to a large purchase of beer from Dothan Beverage Company. In his testimony, defendant denied using for his own benefit any of the money he had withdrawn from the funds of Dynamic.

The testimony thus devolved largely into an intricate accounting process, which was never resolved into a determination by either party as to how much money defendant had withdrawn from the funds of Dynamic or how much he had used to pay obligations of Dynamic, and we have not been favored by a definite, conclusive contention of either party in this respect.

Two chief witnesses for the State were Don Delp and Gene Evans, operations manager and comptroller respectively for Dynamic at Ft. Worth.

During defendant’s cross-examination of Mr. Delp, the following occurred:

“Q You have also — you and your corporation, Dynamic Industries, Incorporated, has also filed a civil lawsuit against him for money, haven’t you?
“MR. SORRELLS: Judge, we object to that.
“THE COURT: Sustain the objection to that.”

During defendant’s cross-examination of Mr. Evans, the following occurred:

“Q As the auditor of the corporation, you know that your company has filed a civil lawsuit against—
“MR. SORRELLS: Judge, we object to that.
“THE COURT: Sustain the objection to that. Stay away from that, Mr. Horns-by.”

We are pressed by appellant with the contention that the trial court should have allowed defendant, on cross-examination of these two important witnesses for the State, to show that Dynamic filed a civil suit against defendant to recover the money alleged to have been embezzled by him and that the trial court was in error in sustaining the State’s objections to the questions above quoted. Appellee counters, arguing that appellant “is somewhat thorough in his presentation of the ‘general rule’ . relative to the cross-examination of the witness regarding a civil suit already filed in the pending cause. However, the Appellant is not completely thorough because he fails to state that this general rule, as many other general rules, is riddled with exceptions.” Thereafter appellee relies upon the “discretionary factor” of the trial court as an “exception to the general rule.”

We agree with appellee that considerable discretion is vested in the trial court as to the extent it should go in permitting cross-examination of a witness “called against him, so as to assure to the party his right to a “thorough and sifting” cross-examination as provided by Code of Alabama 1940, Recomp. 1958, Tit. 7, § 443. Nevertheless, we believe there is little, if any, discretion as to whether it should permit on cross-examination questions directed to the witness for the purpose of showing that the witness has filed suit against the party about the same matter as that being litigated in the case in which the witness is to testify. In Ferguson v. State, 40 Ala.App. 389, 114 So.2d 302 (1959), it was held:

“A party to an action or proceeding, civil or criminal, may elicit from an opposing witness on cross-examination any fact tending to show bias against him or that the witness is interested in the outcome of the litigation. Sowell v. State, 30 Ala.App. 18, 199 So. 900; Adams v. State, 30 Ala.App. 188, 2 So.2d 468; Louisville & N. R. Co. v. Courson, 234 Ala. 273, 174 So. 474.
“Under this rule a witness for the prosecution in a criminal case may be compelled to disclose on cross-examination that he has instituted a civil action for damages against the accused based on the acts involved in the criminal case. Cabel v. State, 18 Ala.App. 557, 93 So. 260; George v. State, 27 Ala.App. 196, 169 So. 325; McCain v. City of Montgomery, 38 Ala.App. 568, 92 So.2d 678; Morrison v. State, 267 Ala. 1, 100 So.2d 744. See also 98 C.J.S. Witnesses § 546, p. 488; Wharton’s Criminal Evidence, 12th Ed., Sec. 909, p. 326.”

To the cases cited is to be added Lanier v. State, 43 Ala.App. 447, 192 So.2d 256 (1966).

Appellee also argues that as to each of the two witnesses in instant case, it was not the “witness himself” who initiated “a civil action for damages against the accused” and, for that reason, the rule advanced by appellant, which has been followed without exception in Alabama, is without application in this case. We are not favored with any authority to support such contention. However a good rule may be stated, it should not fail unless the reason for it fails. To be sure, if a witness is not related in any way to the one that has filed the suit, a question addressed to him as to the filing of the suit by a third party 'would hardly be relevant to the question of his interest or bias. On the other hand, if there is such a close relation between the witness and the party filing the other suit that it logically follows that he would have a similar interest in the case in which he is testifying as the party who filed the other suit would have, the rationale of the rule discussed is applicable. If the fact that the other suit is not that of the witness who is testifying precludes an application of the rule, it could never be applied where the party that files the suit is a corporation. Both of the named witnesses for the State were forward eschelon agents of Dynamic. Insofar as the case before us is concerned, they were the only agents of Dynamic. The defendant should have been allowed to show by each of them on cross-examination that a suit had been filed against defendant by Dynamic.

“It thus appears to be our rule that, notwithstanding the range of cross-examination to develop bias is largely discretionary, where the witness’ testimony is important to the determination of the issues being tried, there is little, if any, discretion in the trial judge to disallow cross-examination on matters which tend to indicate the bias of the witness.” Wells v. State, 292 Ala. 256, 258, 292 So.2d 471, 473.

It would be hypercritical, we think, of the questions to which the objections were sustained to say that they lack sufficient clarity to show they were inquiries about the filing of a civil suit by Dynamic against defendant as to the matter involved in the criminal case now under review. Appellee has not done so. We feel it appropriate to decide the question the parties actually submit and not go off on a tangent to which our attention has not been directed by either of the parties. It seems reasonably clear that the attorneys on the trial and the trial court understood that by the questions defendant was seeking to show by each witness that he knew Dynamic had filed a civil suit against defendant to recover funds he was alleged to have appropriated. Even if not all of this was covered in either of the questions and an additional question or questions should have been asked in order to fully disclose the object of the inquiry, defendant’s counsel could not well have done so in view of the court’s instruction, “Stay away from that, . . . ”

It seems that no one has any doubt that defendant’s guilt hinged upon whether his conduct was with fraudulent intent or that the determination thereof was for the jury. A determination thereof in favor of the State was dependent upon testimony of Mr. Delp and Mr. Evans. Their interest or bias would naturally affect the credibility of essential portions of their testimony. The defendant should have been allowed to show on cross-examination of each of said witnesses that, to the knowledge of the witness, the victim of the alleged embezzlement, the employer of each of the witnesses, had filed a civil suit against defendant that was based upon the same conduct as that for which defendant was being tried in this case. In sustaining the State’s objection to the questions asked on cross-examination of Mr. Delp and Mr. Evans as above discussed, there was error substantially injurious to defendant.

Appellant also says that the trial court erroneously limited defendant in his cross-examination of witnesses for the State in respects in addition to that hereinabove considered.

We agree with appellant that cross-examination is not limited to matter brought out on direct examination of a witness and extends to all matter within the issues of the case. Coward v. McKinney, 277 Ala. 513, 172 So.2d 538 (1965); Lewis v. State, 43 Ala.App. 16, 178 So.2d 649 (1965). We do not agree that there was any conflict between any of the rulings of the trial court and such rule.

Appellant also says that the trial court limited him on cross-examination of witnesses to “short and concise questions.” In making this insistence, appellant refers to statements by the trial court addressed to defendant’s counsel in his cross-examination of witnesses. There were many instances during the cross-examination of witnesses that the defendant’s questions were lengthy statements of fact that called for admonition by the trial court. Whatever was said by the court was within the nature of an admonition and did not constitute an order of the court limiting defendant’s attorney to short concise questions. The following is an illustration:

“Q Now with regards to the system of taking money out of the cash register on the weekend to pay for sometimes 4 and $5,000 for bulk sales of bulk purchases of beer, there is not anything wrong with the procedure, and that procedure was approved by the home office, and by—
“MR. SORRELLS: Judge, we object to him testifying.
“THE COURT: Sustain the objection. Just ask him a question. A short concise question, and let him answer it, and we’ll get along faster.”

Instead of finding fault as charged, we find that the trial judge manifested commendable patience and excellent judgment in keeping the interrogation of witnesses within reasonable bounds.

For the errors, indicated, the judgment should be reversed and the cause remanded.

The foregoing opinion was prepared by Retired Circuit Judge Leigh M. Clark, serving as a judge of this Court under the provisions of § 6.10 of the New Judicial Article, Constitutional Amendment No. 328. His opinion is hereby adopted as that of the Court.

REVERSED AND REMANDED.

All the Judges concur.


text:
    Ex parte STATE of Alabama ex rel. ATTORNEY GENERAL.
    77-488.
    Supreme Court of Alabama.
    May 19, 1978.
   FAULKNER, Justice.

WRIT DENIED.

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