author: BRADLEY, Judge.

text:
    In re William DORSEY v. UNITED STATES PIPE AND FOUNDRY COMPANY. Ex parte William Dorsey.
    Civ. 1108.
    Court of Civil Appeals of Alabama.
    June 15, 1977.
    Rehearing Denied July 20, 1977.

      John W. Haley and D. Leon Ashford of Noojin, Haley & Ashford, Birmingham, for appellant.
    John H. Morrow and Stephen E. Brown, Birmingham, for appellee.
   BRADLEY, Judge.

This is a workmen’s compensation case. The sole issue for review is whether or not fraud tolls the one year period of limitation set out in Title 26, Section 296, Code of Alabama 1940 (Recomp.1958).

Section 296 is as follows:

“In case of a personal injury all claims for compensation . . . shall be forever barred unless within one year after the accident the parties shall have agreed upon the compensation payable . or unless within one year after the accident one of the parties shall have filed a verified complaint as provided in section 304 of this title. . . . Where, however, payments of compensation have been made in any case, said limitations shall not take effect until the expiration of one year from the time of making the last payment. In case of physical or mental incapacity, other than minority of the injured person or his dependents, to perform or cause to be performed any act required within the time in this section specified, the period of limitation in any such case shall be extended to become effective one year from the date when such incapacity ceases.”

The trial court concluded as a matter of law that fraud was not one of the exceptions to the enforcement of section 296 and held that fraud would not toll the running of the one year period of limitation prescribed by the workmen’s compensation act.

The employee says in support of his contention that proven fraud will toll the running of the one year limitation provision of section 296, that the Alabama Supreme Court in Central of Georgia Ry. v. Ramsey, 275 Ala. 7, 151 So.2d 725 (1962), held that fraud will toll the time in which suit must be brought under the Federal Employers’ Liability Act, and by analysis the Ramsey case should be authority for the proposition that fraud will also toll the statute of limitation in a workmen’s compensation case.

We do not consider the Ramsey case to be apt authority in the case at bar for the reason that there the supreme court specifically construed a federal statute and in the process of doing so relied on decisions of the federal courts construing that statute. Two federal cases were cited as authority: Scarborough v. Atlantic Cast Line Ry., 178 F.2d 253 (4th Cir. 1949), cert. den. 339 U.S. 919, 70 S.Ct. 621, 94 L.Ed. 1343 (1950); and Glus v. Brooklyn Eastern District Terminal, 359 U.S. 231, 79 S.Ct. 760, 3 L.Ed.2d 770 (1959). Our assessment of the Ramsey case is further solidified by what Justice Har-wood said as a prelude to the court’s decision on the question whether fraud tolls the statute of limitation in a Federal Employers’ Liability Act case:

“Despite some expressions of dissatisfaction with the results reached by a rigid application of the rule, it has generally been held that where a statute creates a new cause of action, and provides that such causes of action must be brought within the time specified in the statute, the time limitation was considered as a part of the newly created right, and could not be tolled or suspended for any reason not expressly excepted in the statute. See 15 A.L.R.2d pp. 501 through 527.” 275 Ala. 14, 151 So.2d 730.

The employee also contends that Hatch v. Black Diamond Coal Mining Co., 253 Ala. 495, 45 So.2d 291 (1950), approves fraud as an exception to section 296, supra. In that case an employee filed a workmen’s compensation claim against his employer and the employer defended by pleading the one year statute of limitation. The employee attempted to show that he had been fraudulently prevented from filing his claim within one year of his accident by the employer. The trial court found that if there was any fraud perpetrated on the employee it was discovered more than one year prior to filing the complaint and therefore the claim was barred by the limitation period in the statute. The supreme court affirmed on the theory that there was evidence to support the trial court’s finding. Apparently the question whether fraud could toll the running of the limitation period was not raised; the employee obviously assumed that he could toll the statute by proof of fraud and the employer did not attempt to dispute the position, but rather relied on proof that the fraud had been discovered more than one year prior to the employee’s filing his complaint.

In answer to the employee’s argument, the employer says that fraud is not one of the stated exceptions in section 296 and consequently it cannot toll the running of the one year period of limitation.

The employer’s theory is that the statute of limitation in the present case is more than a remedy; it is a condition to the exercise of the right given to the employee by the workmen’s compensation act. If the right of action is not exercised within the period of limitation, then the right is extinguished and the employee is forever barred from reaping its benefits.

In support of its theory, the employer not only cites cases from other jurisdictions but relies heavily on the Alabama case B. F. Goodrich Co. v. Parker, 282 Ala. 151, 209 So.2d 647 (1967). The question there was whether the time limit set out in section 296 of Title 26 could be raised by the employer as a bar to the employee’s claim on appeal when the employer had failed to properly present that defense to the trial court. The supreme court said:

“As we view the question now being considered, we are not dealing merely with an amendable defect, but rather with a question of jurisdiction. This for the reason that the rights our Workmen’s Compensation Law created are rights not existing at common law. The act fixed the time within which it could be enforced. It is a limitation on the right itself and not alone upon the remedy. The period within which such statutorially (sic) created rights must be asserted is of the essence of the cause of action, and is to be sustained by both averment and proof. Parker v. Fies and Sons, 243 Ala. 348, 10 So.2d 13; Nicholson v. Lockwood Greene Engineers, Inc., 278 Ala. 497, 179 So.2d 76. The time limitations within which such actions must be brought is a condition precedent to the right to maintain such action and is jurisdictional.” 282 Ala. at 155, 209 So.2d at 650.

This court in Hale v. United States Fidelity and Guaranty Co., 45 Ala.App. 379, 231 So.2d 156 (1970), cited with approval the Michigan case Bement v. Grand Rapids & Ind. Ry., 194 Mich. 64, 160 N.W. 424 (1916), for the same proposition as espoused in Parker, supra. Consequently, both courts having decided that strict compliance with section 296 is a condition precedent to the right to maintain a claim for compensation benefits, this court has no alternative but to say that fraud, not being one of the exceptions listed in section 296, does not toll the one year limitation for filing claims therein provided.

Having so decided, we feel we would be remiss if we did not say that other jurisdictions have held that fraud does toll the running of the time limitation provision in a workmen’s compensation case. See Pacific Empioyers Ins. Co. v. Industrial Accident Com’n., 66 Cal.App.2d 376, 152 P.2d 501 (1944); Horton v. West Penn Power Co., 119 Pa.Super. 465, 180 A. 56 (1935); Mackanitz v. Pittsburgh & W. Va. Ry., 157 Pa. Super, 359, 43 A.2d 586 (1945); American Mutual Liability Ins. Co. v. Baxter, 210 Tenn. 242, 357 S.W.2d 825 (1962); Watson v. Proctor & Gamble Defense Corp., 188 Tenn. 494, 221 S.W.2d 528 (1949); Indemnity Insurance Co. v. O’Neal, 104 Ga.App. 305, 121 S.E.2d 689 (1961); Fidelity & Casualty Co. v. Bishop, 108 Ga.App. 422, 133 S.E.2d 51 (1963); Harris v. Bechtel Corp., 74 Idaho 308, 261 P.2d 818 (1953); Logan Manufacturing Co. v. Bradley, 476 S.W.2d 819 (Ky.App.1972); Travelers Insurance Co. v. Echols, 508 S.W.2d 422 (Tex.Civ.App.1974); Texas General Indemnity Co. v. McNeill, 261 S.W.2d 378 (Tex.Civ.App.1953); Carpenter v. E. I. Dupont De Nemours & Co., 194 So. 99 (La.App.1940); Arnold v. Solvay Process Co., 15 So.2d 238 (La.App.1943), aff’d, 207 La. 8, 20 So.2d 407. Nevertheless, we consider this court bound by the decisions of the supreme court of this state.

Recognizing that this jurisdiction has adopted a strict construction of section 296, nevertheless we are concerned that such a construction of this provision in the workmen’s compensation law can lead to fraud being practiced by an employer on an employee, thereby defeating the employee’s access to the benefits authorized by the legislature. Such a result is to us contrary to the rule of liberal construction our courts apply to other sections of the act. Gilmore v. Rust Engineering Co., 289 Ala. 46, 265 So.2d 591 (1972); Young v. City of Huntsville, Ala.Civ.App., 342 So.2d 918 (1976). However, in order to give effect to such a view, it will be necessary for either the legislature to make fraud an exception to the one year limitation provision or the supreme court to judicially devise a different rule; both of these avenues of correction are beyond our authority.

For the reasons given, the judgment of the trial court is affirmed.

AFFIRMED.

HOLMES, J., and PAUL, Retired Circuit Judge, sitting by special appointment, concur.


source: Caselaw Access Project

author: BLOODWORTH, Justice.

license: Public Domain

text:
    In re William DORSEY v. UNITED STATES PIPE & FOUNDRY COMPANY, a corporation. Ex parte William Dorsey.
    SC 2748.
    Supreme Court of Alabama.
    Dec. 9, 1977.

      John W. Haley and D. Leon Ashford, Birmingham, for petitioner.
    John H. Morrow and Stephen E. Brown, Birmingham, for respondent.
   BLOODWORTH, Justice.

We granted certiorari to review the Court of Civil Appeals’ decision in Dorsey v. United States Pipe and Foundry Company, 353 So.2d 797, holding that fraud does not toll the one-year statute of limitations for workmen’s compensation actions contained in Tit. 26, § 296, Code of Alabama 1940 (now § 25-5-80 Code of Alabama 1975). We reverse and remand.

Petitioner, William Dorsey, brought this workmen’s compensation action against respondent, United States Pipe and Foundry Company, in the Circuit Court of Jefferson County, contending, inter alia, that respondent had fraudulently misrepresented certain facts to him; that he had relied upon respondent’s fraudulent misrepresentations to his detriment; and that the one-year statute of limitations (Tit. 26, § 296, Code of 1940, now § 25-5-80 Code 1975) was tolled by respondent’s fraud. The case was heard ore tenus and the trial court held, inter alia, that fraud does not toll the statute of limitations.

The Court of Civil Appeals affirmed although in its opinion it invited our review of this question. A petition for writ of certiorari was filed and granted to review the sole issue as to whether fraud tolls the one-year statute of limitations in workmen’s compensation cases found in Tit. 26, § 296. It provides, in pertinent part, as follows:

“In case of a personal injury all claims for compensation . . . shall be forever barred unless within one year after the accident the parties shall have agreed upon the compensation payable . or unless within one year after the accident one of the parties shall have filed a verified complaint as provided in section 304 of this title. . . . Where, however, payments of compensation have been made in any case, said limitations shall not take effect until the expiration of one year from the time of making the last payment. In case of physical or mental incapacity, other than minority of the injured person or his dependents, to perform or cause to be performed any act required within the time in this section specified, the period of limitation in any such case shall be extended to become effective one year from the date when such incapacity ceases.”

This is a case of first impression. Petitioner cites several cases from other jurisdictions which have held that fraud does toll the statute of limitations in workmen’s compensation cases. Respondent concedes that some jurisdictions have adopted this liberal posture but argues that Alabama has not done so. Respondent contends that since the Alabama Workmen’s Compensation Act is a statutory creation, and not a creature of the common law, then the one-year statute of limitations is considered as a part of the newly created right and cannot be tolled or suspended for any reason not expressly cited in the statute.

This Court has held that Tit. 26, § 296, is a limitation on the right itself and not alone upon the remedy. B. F. Goodrich Co. v. Parker, 282 Ala. 151, 209 So.2d 647 (1967).

It has also been held that the time limitation within which such actions must be brought is a condition precedent to the right to maintain such actions and is jurisdictional. Id.; Shepard v. Chrysler Corporation, 430 F.2d 161 (5th Cir. 1970).

Where a statute creates a cause of action which did not theretofore exist, and where it provides that such cause of action must be brought within the time specified in the statute, the general rule is that fraud does not toll the statute of limitations unless the statute in question expressly so provides. See, e. g., Central of Georgia Railway Company v. Ramsey, 275 Ala. 7, 151 So.2d 725 (1962). This rule has met with widespread dissatisfaction, however, and is replete with exceptions. See, e. g., “Effect of fraud to toll the period for bringing action prescribed in statute creating the right of action.” 15 A.L.R.2d 500, at 519-526. See also, 3 Larson, Workmen’s Compensation Law, § 78.45.

In Central of Georgia, supra, Mr. Justice Harwood, writing for the Court, pointed out that the more recent federal appellate court decisions are to the effect that legal fraud does toll the time within which suit must be brought under the F. E. L. A. Our Court followed such decisions and those of the United States Supreme Court in holding that fraud does toll the statute in, F. E. L. A. cases.

Apparently, the general rule alluded to above has met with particular disaffection in workmen’s compensation cases. See, e. g., “Effect of fraud to toll the period for bringing action prescribed in statute creating the right of action,” supra.

“Outside of the cases infra, construing the Workmen’s Compensation Act of Alaska, there seems to be no case which goes to the length of holding that fraud which prevents an employee from instituting proceedings for benefits conferred by such an act within a period limited thereby will not toll or suspend the running of the period. There are several cases which, though failing to find fraud, contain the intimation that such would be its effect in the event of a contrary finding, and several examples of this nature are given, without attempting to be exhaustive of the cases on what constitutes fraud, for this purpose. Whatever may be the theoretical concept of the nature of the benefit or particular right of action conferred by a workmen’s compensation act, and however sweeping the limitation provision may be, the ultimate purpose of the legislation seems to have persuaded the majority of the courts not to regard enforcement of the right as conditioned upon commencement of proceedings within the time limited, should fraud preventing such commencement be established.” Id. at 520. (Emphasis supplied.)

Respondent has argued that because Tit. 26, § 296, is a limitation upon the right itself and not alone upon the remedy, and because the statute is jurisdictional, we must affirm. We cannot agree. Many other jurisdictions have faced this obstacle, and have not found it to be insurmountable. E. g., Mackanitz v. Pittsburgh & W. V. R. Co., 157 Pa.Super. 359, 43 A.2d 586 (1945).

“The statutory limitation contained in § 315 imposes a condition upon the rights created by the Act, and makes mandatory the filing of a claim petition within the period of time to which the right to compensation is limited. . . The courts may not extend the period of repose, ex gratia, or what is the same thing, permit the filing of a petition nunc pro tunc, in aid of a meritorious claimant or to relieve against the hardship of particular circumstances although the running of the statute may be tolled by the declarations and conduct of those who invoke its protection. . . . Where a defendant’s representatives so deport themselves in their dealings with a claimant as to mislead or deceive him, whether innocently or with fraudulent purpose, and induce him to postpone the filing of his petition until the period of limitation has expired, the defense of inordinate delay is not available, as a defendant cannot be permitted to benefit from a neglect for which he is himself primarily responsible.” [Citations omitted.]

43 A.2d at 588-89. See also, 3 Larson, Workmen’s Compensation Law, § 78.45.

Following is a pertinent comment from the federal appellate bench quoted with approval in our Central of Georgia, supra:

“ ‘Judge Frank in the Osbourne case and Judge Parker in the Burkhardt case, supra, have shown that the distinction between a remedial statute of limitations and a substantive statute of limitations is by no means so rock-ribbed or so hard and fast as many writers and judges would have us believe. Each type of statute, after all, still falls into the category of a statute of limitations. And this is none the less true even though we call a remedial statute a pure statute of limitations and then designate the substantive type as a condition of the very right of recovery. There is no inherent magic in these words.’ ”

We are impressed by this reasoning. We hold, therefore, that when acts are done by the emplpyer which lead the employee to believe that liability under the statute is admitted and will not be contested, or where the acts of the employer either falsely misrepresent to the employee or fraudulently conceal from him the truth of the facts upon which the liability of the employer depends, the running of the statute of limitations may be tolled, and it is immaterial whether the employee relies upon actual fraud or mere estoppel. Pacific Employers Ins. Co. v. Industrial Accident Commission, 66 Cal.App.2d 376, 152 P.2d 501 (1944). We think such a construction comports with the rule of liberal construction with which Alabama courts have otherwise construed our workmen’s compensation laws. E. g., Gilmore v. Rust Engineering Co., 289 Ala. 46, 265 So.2d 591 (1972).

Respondent has argued that we cannot affirm this cause in view of the holding in B. F. Goodrich Co. v. Parker, supra. We cannot agree. The primary issue in Parker was whether voluntary payments of compensation made to an employee by his employer after his cause of action was barred by the statute of limitations revived the cause of action. Parker held that they did not. There were no allegations of fraud in Parker as there are here, and no issue was raised regarding the effect of fraud on the limitation of actions under Tit. 26, § 296. Thus, we see no conflict between Parker and our holding here.

In conclusion, we take note, as did the United States Supreme Court in Glus v. Brooklyn Eastern Terminal, 359 U.S. 231, 79 S.Ct. 760, 762, 3 L.Ed.2d 770 (1959), of the age old maxim “that no man may take advantage of his own wrong.” See also, Mazer v. Jackson Insurance Agency, 340 So.2d 770 (Ala.1976).

Nothing we have said herein should indicate that we entertain any views as to the merits of the fraud claim. The only issue presented to us is the legal question and we have answered it.

REVERSED AND REMANDED.

All the Justices concur.

      . The 1975 Code became effective October 31,1977.


text:
    In re William DORSEY. v. UNITED STATES PIPE AND FOUNDRY COMPANY. Ex parte William Dorsey.
    Civ. 1108.
    Court of Civil Appeals of Alabama.
    Jan. 4, 1978.
   BRADLEY, Judge.

Upon remand to this court by the Supreme Court of Alabama it is considered that this cause should be reversed in accordance with the opinion rendered by the supreme court on December 9, 1977 in the above cause, 353 So.2d 800, and remanded to the Circuit Court of Jefferson County for further proceedings.

REVERSED AND REMANDED.

HOLMES, J., and PAUL, Retired Circuit Judge, sitting by special appointment, concur.


author: HOLMES, Judge.

text:
    Alton E. BROUSSARD, III v. Louis BROWN.
    Civ. 1147.
    Court of Civil Appeals of Alabama.
    Jan. 4, 1978.
    Norman H. Davis, Jr., Mobile, for appellant.
    Donald M. Briskman, Mobile, for appel-lee.
   HOLMES, Judge.

This is a malicious prosecution case. The jury returned a verdict in favor of the plaintiff in the amount of $5,000. A judgment was entered and the defendant appeals. We affirm.

The defendant contends that the trial court erred to reversal in not granting the defendant’s motion for a direct verdict. This contention is bottomed on the premise that the defendant relied on an attorney’s advice in swearing out a warrant for the arrest of the plaintiff. Additionally, the defendant urges error in that the verdict is excessive.

We do not deem it necessary to set out in detail the facts as revealed by the record. Suffice it to say that the following is pertinent.

The plaintiff and defendant became involved in a dispute over a bill allegedly owed by the defendant to the plaintiff. In a “heated” discussion over the bill, the defendant testified the plaintiff threatened him. The defendant thereafter went to an attorney and related to the attorney his version of the affair. The attorney advised the defendant that what plaintiff said to defendant constituted a threat. The defendant then swore out a warrant against plaintiff. Plaintiff was tried and found to be not guilty. The plaintiff then brought suit against the defendant for malicious prosecution with the result as indicated above.

At the trial for malicious prosecution, the plaintiff’s and defendant’s versions differed as to what transpired at the encounter over the bill. Specifically, the plaintiff and his secretary testified no “threat” was made by plaintiff to defendant. The defendant testified a “threat” was made and this, of course, was the version related to the attorney.

It is clear the law in Alabama is that advice of counsel, honestly sought and acted on in good faith, supplies an indis-pensible element of probable cause for legal action and is a complete defense to an action for malicious prosecution. See Birwood Paper Co. v. Damsky, 285 Ala. 127, 229 So.2d 514 (1969); 14 Ala.Dig. Malicious Practice @=21(1). However, for this defense to prevail, it must be that a factual conclusion is made that the attorney’s advice was given on a full and fair statement of all the facts and circumstances known to, in this instance, the defendant. See Alabama Dry Dock & Shipbuilding Co. v. Bates, 33 Ala.App. 81, 30 So.2d 273 (1947); 14 Ala.Dig. Malicious Practice @=21(2). Whether such full and fair statement was given is, in this instance, a question of fact for the jury to determine. See Bates, supra. Put another way, the jury could well have found that the attorney’s advice was based on the fact a “threat” was made when, in fact, no such “threat” was made. We, therefore, find the trial court did not err in refusing to grant defendant’s motion for a directed verdict.

As noted above, the defendant also urges error in that the jury’s verdict is excessive.

In this instance, the following proposition of law is dispositive of this issue: An alleged excessive verdict cannot be reviewed by this court unless a motion for new trial has been made and acted upon by the trial court. See 2 Ala.Dig. Appeal & Error @=293. Here, no such motion was made in the trial court. Additionally, we note that Rule 4(a)(3), ARAP, has no applicability in the instant appeal.

The case is due to be and is affirmed.

AFFIRMED.

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

      . We would note that the learned and distinguished trial judge correctly charged the jury as to the law.


text:
    Francoise N. CORCORAN v. Patrick Winston CORCORAN.
    Civ. 1268.
    Court of Civil Appeals of Alabama.
    Jan. 4, 1978.

      Emily B. Gassenheimer, Montgomery, for appellant.
    Thomas R. Christian, Montgomery, for appellee.
   HOLMES, Judge.

This is a divorce case.

A petition for divorce was filed by appellant-wife in the Circuit Court of Montgomery County on February 7, 1977. The petition and summons was forwarded by certified mail to appellee-husband who resided in North Carolina. The petition and summons was returned unclaimed due to appel-lee-husband’s refusal to accept the certified mail. A copy of the petition was then sent to appellee by ordinary mail in accordance with Rule 4(e), ARCP.

Pursuant to Rule 12(b), ARCP, the appel-lee-husband then filed two motions to dismiss, alleging (1) insufficiency of service of process and (2) lack of jurisdiction over the person of the husband. After the husband filed the above motions, the wife filed a petition for hearing on default judgment. The trial court set this matter for consideration upon arguments at the time of the pretrial hearing which was held July 8, 1977. Prior to the pretrial hearing, both parties were ordered to furnish the court with briefs concerning the husband’s motion to dismiss for lack of jurisdiction over the person of the husband.

After consideration of the matters presented at the pretrial hearing, the court ordered, in pertinent part, the following:

“ . . . and further, that the husband’s motion to dismiss for lack of jurisdiction over the person of husband should be granted because there does not exist sufficient contacts with the State of Alabama to establish in personam jurisdiction over the person of the husband: it is, therefore,
“ORDERED, ADJUDGED and DECREED as follows:
“1. That the wife’s motion to strike and dismiss husband’s motion to dismiss as being unresponsive and request for setting of April 4, 1977 petition for hearing on default judgment is denied, insofar as in personam jurisdiction only is concerned.
“2. Jurisdiction of divorce procedures is properly before the Court as an in rem proceeding.
“3. That the husband’s motion to dismiss for insufficiency of service of process is denied.
“4. That the husband’s motion to dismiss for lack of jurisdiction over the person of the husband is granted.”

The dispositive issue in this case is whether the trial court erred to reversal in finding that it did not have personal jurisdiction over the husband.

The pertinent facts in this case, as revealed by the record and briefs filed with this court, are as follows:

The wife and husband were married in Montgomery, Alabama, on May 12, 1972, while the husband was temporarily assigned to Maxwell Air Force Base, Alabama. The husband is a member of the U.S. Air Force, holding the rank of Captain. The wife had been a life long resident of Alabama. Alabama was not the domicile of the husband. The couple resided in Montgomery for approximately ninety days until the husband was transferred on September 1, 1972, to Seymour Johnston Air Force Base in North Carolina.

The couple resided in North Carolina until February 28, 1975, when the husband was assigned to Korat, Thailand. While the husband was overseas, the wife lived in Texas with the husband’s parents and then the wife moved to Montgomery while the husband was still stationed in Thailand. This occurred in August of 1975. The husband spent approximately twenty-one days in Montgomery during his Christmas leave of December, 1975-January, 1976.

The husband’s assignment to Thailand ended March 1, 1976, at which time he returned to Montgomery to pick up the wife. On March 13, 1976, the wife and husband resumed residence in North Carolina as the husband was again assigned to duty at Seymour Johnston Air Force Base.

The wife, without the husband, moved to Montgomery on May 13, 1976, and filed for divorce in August of 1976.

We come now to the question of whether the trial court had in personam jurisdiction over the husband.

ARCP, 4.2(a)(2), as set out in pertinent part below, defines the bases of in person-am jurisdiction over nonresidents or absent residents.

“2. Sufficient Contacts. A person has sufficient contacts with the state when that person, acting directly or by agent, is or may be legally responsible as a consequence of that person’s
“(H) Living in the marital relationship within this state notwithstanding subsequent departure from this state, as to all obligations arising from alimony, custody, child support, or property settlement, if the other party to the marital relationship continues to reside in this state; or
“(I) otherwise having some minimum contacts with this state and, under the circumstances, it is fair and reasonable to require the person to come to this state to defend an action. The minimum contacts referred to in this subdivision (I) shall be deemed sufficient, notwithstanding a failure to satisfy the requirement of subdivisions (A)-(H) of this subsection (2), so long as the prosecution of the action against a person in this state is not inconsistent with the constitution of this state or the Constitution of the United States.”

According to the committee comments to Rule 4.2, subparagraph (H) is designed to demonstrate or state a certain activity which constitutes “minimum contacts” with Alabama sufficient to subject a nonresident individual to suit and in personam jurisdiction within Alabama.

Subparagraph (I) is designed to allow service in a situation which does not fit comfortably within any of the transactional bases set out in subparagraphs (A)-(H) of Rule 4.2. The explanatory statement appearing in subparagraph (I) was included to prevent the specific descriptions of contacts as set forth in subparagraphs (A)-(H) from having a limiting effect on the “catch-all” reference to minimum contacts in subpara-graph (I).

The wife contends the trial court has jurisdiction over appellee-husband by virtue of subparagraph (H). While it is clear that the parties were married in Montgomery and lived there for approximately ninety days thereafter, such facts do not subject the appellee-husband to the provisions of subparagraph (H).

The Supreme Court of Kansas, when faced with the interpretation of a provision identical to subparagraph (H), stated that the subparagraph is designed to cover the situation where wrongs were committed in the marital relationship while the parties were domiciled within that state. Personal service sufficient to support a personal judgment would then be available even though the defendant had moved to and acquired a domicile in another state. See Scott v. Hall, 203 Kan. 331, 454 P.2d 449 (1969).

Therefore, subparagraph (H) is to be used when the parties are living in the marital relationship within the state; a wrong is committed; and the defendant leaves Alabama. The subparagraph also requires that the party to the marital relationship, other than the leaving spouse, continue to reside in Alabama. See Scott v. Hall, supra.

From the facts as noted above, we find the parties in this case do not fall within such a situation. The domicile of the marital relationship was, as far as this court can determine, North Carolina and not Alabama. The “wrongs,” as alleged by the wife, were in large measure apparently committed while the parties were residing in North Carolina.

The mere fact of having once lived in the marital relationship in Alabama is not sufficient so as to bring it within the purview of subparagraph (H). See Scott v. Hall, supra.

Turning now to subparagraph (I) of Rule 4.2, we note personal service may also be obtained upon a person who has some minimum contacts with Alabama.

Subparagraph (I) is designed to cover a situation where a cause of action arises out of acts done by an individual in Alabama. This action may be sued upon in Alabama although the defendant has left the state.

As indicated above, the facts in this case do not evidence such minimum contacts so as to create in personam jurisdiction over the appellee in Alabama.

North Carolina was the parties’ last matrimonial domicile. It should also be noted that the parties had not been domiciled as husband and wife in Montgomery since 1972. North Carolina is the place where, in large measure, the husband’s asserted wrongful conduct created the grounds for divorce. It is presumably the residence of a majority of the witnesses who might be called to testify. North Carolina has continued to be the residence of the husband and where he plans permanent residence.

With the above in mind, we cannot say that the fact of marriage of the parties in Montgomery and living there for approximately four months is sufficient to establish minimum contacts with Alabama so as to confer in personam jurisdiction over the husband by virtue of subparagraph (I). See Bunker v. Bunker, 552 S.W.2d 641 (Ark.1977); McIntyre v. Bakers for a Democratic Union, 54 A.D.2d 872, 388 N.Y.S.2d 587 (1976).

The wife also alleges error in the trial court’s refusal to grant her request for a default judgment. Upon proper motion by the husband questioning the in personam jurisdiction of the court, the trial court set the request for default judgment to be heard at the pretrial conference along with other pending motions.

It is clear to this court that the filing of the motion to dismiss, which challenged the jurisdiction of the court, would preclude the entry of a default before the disposition of the motion. See National Distillers Products Corporation v. Hindech, 10 F.R.D. 229 (D.C.Colo.1950).

The trial court was therefore not in error in refusing to grant the appellant’s request for default judgment prior to the disposition of the pending motions.

In summary, the facts of this case do not confer in personam jurisdiction on the husband under either subparagraph (H) or (I) of Rule 4.2. This case is thereby due to be and is affirmed.

AFFIRMED.

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

      . We would be remiss in not commenting that both counsel for the wife and husband have favored this court with excellent briefs.


author: TYSON, Presiding Judge.

text:
    Bobby Joe ELLENBURG v. STATE.
    6 Div. 529.
    Court of Criminal Appeals of Alabama.
    Nov. 15, 1977.
    As Corrected On Denial of Rehearing Dec. 20, 1977.

      H. C. Wiley, Jr., and Philip A. Laird of Elliott, Laird & Wiley, Jasper, for appellant.
    William J. Baxley, Atty. Gen., and John B. Rucker, III, Asst. Atty. Gen., for the State.
   TYSON, Presiding Judge.

Bobby Joe Ellenburg was charged by indictment with murder in the first degree. The appellant entered pleas of not guilty by reason of self-defense, by reason of temporary insanity, and by reason of insanity. The jury found the appellant guilty of murder in the second degree and fixed his punishment at twenty years in the penitentiary. The trial court then entered judgment in accordance with this verdict.

Patsy Holley testified that she was the daughter of the deceased, Clyde D. Morton. Holley identified State’s Exhibit “B” as a work shirt belonging to the deceased.

Paul Ellenburg testified that he was appellant’s brother. Ellenburg stated that on May 16, 1976, around 9:00 a.m., the appellant and his wife came to his home. According to Ellenburg, he and the appellant drank wine and beer until around 11:30 a.m., at which time the two of them left and went into the woods where they drank a half case of beer. Around 2:30 p.m., Ellenburg testified the two of them left and drove to appellant’s mother’s home. On the way, according to Ellenburg, they picked up the deceased, Clyde Morton. When the three of them arrived at appellant’s mother’s home, Ellenburg testified, he went inside, got a drink of water, and the three of them drove over to see a bootlegger where they purchased some whiskey. The appellant and Morton, according to Ellenburg, drank the whiskey.

While the three of them were driving around in appellant’s car, Ellenburg testified, the appellant accused Morton of throwing his shoe out the car window. According to Ellenburg, the appellant called Morton a liar and stopped the car. The appellant and Morton, Ellenburg stated, got out of the car and Morton knocked appellant to the ground. The appellant got up, according to Ellenburg, grabbed Morton by the hair and knocked Morton to the ground. Next, the following occurred (R. pp. 341-343):

“A. He said, T am going to hurt him and hurt him bad.’
“Q. He said, T am going to hurt him and hurt him bad.’
“A. Yes.
“Q. All right. When he was . talking about kicking him with his feet, did Bobby Joe have shoes on or off?
“A. No, sir, he was barefooted.
“Q. Will you show to the jury how he was kicking or stomping?
“A. He just had his foot up like that. (Witness demonstrates)
“Q. Had his foot up like this stomping?
“A. Yes, sir.
“Q. And, at that time was Clyde Morton laying on his stomach?
“A. Yes, sir.
“Q. Where was he stomping him at? “A. Below the hips.
“Q. Was he stomping him on his back also?
“A. Yes.
“Q. Was this before or after you told him, ‘You are going to hurt him’?
“A. That was after.
“Q. I will ask you if while the fight was going on if you observed anyone come by there?
“A. That Stillwell boy come by there.
“Q. All right. Did you hear a conversation between Bobby Joe and Stillwell?
“A. Bobby told him to get on down the road and stay out of it.
“Q. Tell the jury to the best of your judgment exactly what was said.
“A. He told him to ‘get his butt in that or get his ass in that truck and get on down the road.’
“Q. And, what did Mr. Stillwell do when he told him that?
“A. He got in his van truck and left.
“Q. All right. During the scuffle that took place, did you stay in the car or outside the car?
“A. In the car.
“Q. Did Bobby Joe later return to the car that you were in?
“A. Yes.
“Q. All fight. Tell this jury if you will what he said to you when he got back in the car.
“A. He said, ‘Well, I took his clothes. I got them one leg at a time and it didn’t cost me a dime.’
“Q. What, if anything else, did he tell you?
“A. He said, T guess I’ve got him.’
“Q. T guess I’ve got him.’ Did he have an occasion to make a statement to you in regard to your mouth?
“A. No, sir.
“Q. Did he have occasion to make a statement to you about keeping your mouth shut?
“A. Yes, sir. He told me to keep my mouth shut and stay in the car.
“Q. And, did you follow those instructions?
“A. Yes, sir, that is what I did.
“Q. You mentioned that he said . What is that again? ‘I’ve got his pants one leg at a time and they didn’t cost me a dime.’
“A. Yeah.
“Q. When he returned to the car, what if anything did he have in his hand? “A. He just had the clothes rolled up in a ball.
“Q. Did you have occasion to observe those clothes?
“A. No.
“Q. Did you see the clothes at any time?
“A. I just seen the bundle.
“Q. What, if anything, did he do with that bundle of clothes?
“A. Threw them in the back seat of the car.
“Q. What, if anything, did he do after he threw them in the back seat of the car?
“A. He just got in the car and that is when we left from up there.
“Q. Who was driving when you left?
“A. Bobby was.
“Q. All right. Where did he drive to from the scene where the scuffle occurred?
“A. Down to my sister, Mary’s. Mary Logan’s.
“Q. Did you say anything to him while you were driving down there?
“A. No.
“Q. Did he say anything to you?
“A. No. He just said, T guess I got him.’ ”

After leaving Mary Logan’s house, Ellen-burg testified, he and the appellant drove over to Venoh Lawson’s house. According to Ellenburg, the appellant took the deceased’s clothes inside Lawson’s house and told Lawson and his family that he must have killed Morton. The appellant and El-lenburg then left and went to pick up appellant’s wife at a friend’s home. After picking up Ellenburg’s wife, Ellenburg testified, they drove to his (Ellenburg’s) home. As they were entering the driveway, Ellen-burg stated, the police drove up and the appellant ran. Ellenburg testified that appellant’s knuckles on his right hand were very swollen.

James M. Buttram of the State of Alabama, Department of Toxicology, testified that he performed an autopsy on Clyde D. Morton. Buttram stated that the autopsy revealed significant injuries, such as a fractured hyoid bone, fractured ribs, cuts and abrasions, hemorrhages to the brain, and a laceration of the liver. Buttram testified that the cause of death was attributable to multiple blunt force damage to the body [i. e., foot or fist]. Buttram stated that both the laceration to the liver and the damage to the neck region were potentially fatal wounds.

Donnie Richards testified that on March 16,1976, around 10:00 or 11:00 a.m., George Rainey, Venon Lawson, Billy Loftin, Gene Pearson, and he met the appellant and El-lenburg at Lawson’s house. Richards stated the appellant and Ellenburg left, but returned late that evening. The appellant, Richards testified, came in with a bundle of clothes in his arms which Richards identified as State’s Exhibit “B.” Appellant, according to Richards, stated that he didn’t know whether or not he had killed Morton. Richards testified that appellant exhibited his hand to him, pointing out the fact that it was very swollen. During the examination of Richards, the following occurred (Vol. Ill, R. p. 436):

“Q. Would you face the jury, please. Would you tell this Jury and this Court what, if anything, you said to Bobby Joe ■Ellenburg that night after he showed you his hand?
“A. I asked him did he know what could happen to him for killing him.
“Q. You said, ‘Do you know what will happen to you for killing him?’
“A. Yeah.
“Q. Will you tell the Ladies and Gentlemen of this Jury what he said when you said, ‘Do you know what will happen to you for killing him.’
“A. He said he wasn’t worried about it that he would play crazy and get out of it.”

Frank Cole, Deputy Sheriff of Walker County, testified that he found the deceased’s body, nude, in a wooded area. Cole stated that he drove over to Paul Ellen-burg’s house and saw an automobile with three occupants inside backing out of the driveway. Cole told the occupants to place their hands on the dashboard, which Paul Ellenburg and his wife did, but the appellant ran. Deputy Sheriff Cole stated that appellant was apprehended approximately twenty-five minutes later.

Charles Binkley of the Walker County Sheriff’s Department testified that he read the appellant his Miranda rights, and that the appellant stated that he understood them. Binkley stated that the appellant also signed a voluntary statement form after which he made a written confession, attaching his signature thereto. The trial court ruled that the written confession was inadmissible due to the fact that Binkley could not remember whether or not he read the statement back to appellant, word for word, before the appellant signed his name thereto.

Dr. Annette Brodsky, Associate Professor with the Department of Psychology at the University of Alabama in Tuscaloosa, testified that she was familiar with a disease known as psychomotor epilepsy or temporal lobe epilepsy. Dr. Brodsky stated that the cause of the disease can be traced to some type of organic brain damage or a blow to the head. According to Dr. Brodsky, the disease can cause a person to pass out and not be aware of his actions upon recovery. Dr. Brodsky testified that she was familiar with hypoglycemia. According to Dr. Brod-sky, hypoglycemia is a medical term used to describe someone with an abnormally low blood sugar level. Dr. Brodsky testified that hypoglycemia could trigger a psycho-motor epileptic attack, resulting in violent conduct. Dr. Brodsky stated that she could not unequivocally state that appellant was suffering from an epileptic condition. On cross-examination Dr. Brodsky indicated that there were “some signs of psychomotor epilepsy.” Dr. Joseph Wooddial, Psychiatrist at Bryce Hospital, testified that he agreed with the testimony given by Dr. Brodsky. Also, according to Dr. Wooddial, over fifty per cent of the inmates serving sentences in state institutions are suffering from hypoglycemia. In his direct testimony, Dr. Wooddial conceded that “it was possible appellant was not suffering from hypoglycemia.”

Dr. V. Delaine O’Rear testified that he was a practicing physician in Jasper, Alabama. Dr. O’Rear stated that he had two interviews with the appellant, and based his testimony at trial on the results of glucose tolerance tests which were submitted to him. According to Dr. O’Rear, the results of appellant’s test were not unusual. In fact, Dr. O’Rear stated that one out of five people would have test results similar to those of appellant. While, according to Dr. O’Rear, hypoglycemia “could be characterized” by “an attack” which would be accompanied “by temper tantrums and deliriums, “based upon examinations of over 300 patients over a six year period, “he had never observed this” (R. pp. 720-727).

Dr. Buris Boshell, Chief of the Division of Endocrinology and Metabolism, and Medical Director of the Diabetes Hospital in Birmingham, Alabama, testified that he had come in contact with hypoglycemia approximately five hundred times in the past twenty-five years. According to Dr. Boshell, the appellant’s glucose tolerance test results were normal. Dr. Boshell’s testimony was based upon figures submitted to him for his opinion, and not personal examination of the appellant.

I

Appellant contends that the trial court committed reversible error by allowing Officer Charles Binkley to testify as to the contents of a written confession made by the appellant, even though the court had ruled the written confession inadmissible.

Officers Charles Binkley and Joel Guthrie testified that the appellant was informed of his Miranda, rights and responded that he understood them, but still wished to make a confession. Binkley and Guthrie stated that no one in their presence, or to their knowledge, offered appellant any promise or hope of reward, or threatened, intimidated, or coerced the appellant in order to obtain a statement. Binkley testified that he wrote down appellant’s confession as appellant talked, and that afterwards appellant signed his name to the statement. Due to the fact that the statement was not read back to appellant, word for word, before he signed it, the trial court ruled the confession to be inadmissible as evidence.

The trial court did not rule that the confession was inadmissible because it was illegally obtained. The record shows that the statement was voluntarily made after appellant had been advised of his rights. It was simply the fact that appellant did not read the statement or have someone read it back to him, word for word, that caused the trial court to rule out the statement. Officer Binkley wrote down the confession himself, and was merely using it to enable himself to testify to the facts as a matter of independent recollection. Penny v. Warren, 217 Ala. 120, 115 So. 16. Thus, no error is shown.

II

Appellant contends that the trial court committed reversible error in denying appellant’s motion for a new trial based upon several improper comments and misstatements of the evidence by the State’s attorney.

During closing argument on behalf of the State, the following occurred (Vol. IV, R. p. 767):

“Now, the best of my understanding of the defense, they hand their defense basically on Well, they pleaded self-defense. I submit to you that there is no case, no evidence of self-defense.”

Appellant contends that the above was a direct reference to the appellant’s not testifying. Since there was no objection or motion to exclude made by the appellant, the question is not properly presented for our review. King v. State, 48 Ala.App. 154, 262 So.2d 764, cert. denied 288 Ala. 744, 262 So.2d 767, cert. denied 409 U.S. 986, 34 L.Ed.2d 252, 93 S.Ct. 339.

During closing argument, the State’s attorney made the following statement (Vol. IV, R. p. 793):

“. . . [Tjhat up to fifty per cent of the people in the prisons suffer from this. According to him they should all be let out.
“MR. WYLIE: Judge, we object to that. That is highly improper.
“COURT: Sustained. Jury disregard the last statement.”

The trial court sustained appellant’s objection to the statement, and then instructed the jury to disregard the remarks. Therefore, the trial court took the necessary steps to remove any possible prejudicial effect the statement may have had. Thus, no error is shown. Adair v. State, 51 Ala.App. 651, 288 So.2d 187; Betowsky v. State, Ala. Cr.App., 333 So.2d 193; Napier v. State, Ala.Cr.App., 337 So.2d 62.

Also, during closing argument, the State’s attorney made this statement (Vol. V, R. p. 795):

“What actually happened is we have this situation ... it involves a mean drunk. That is exactly what happened. Bobby Joe Ellenburg drinks a lot and when he drinks a lot he becomes mean. That is exactly what happened.
“MR. WYLIE: Judge, we are going to object to that. He can draw inferences with evidence but he cannot misstate the evidence and there has never been testimony that when Bobby Joe Ellenburg drinks he becomes mean. His mother said on the contrary when he drinks normally he went home and went to bed. Now, Mr. Baker is misstating ■ the evidence time and time again and we are sitting here trying to listen to it and we can’t stand it any longer.
“COURT: Sustained.
“MR. LAIRD: We ask the Court to instruct the Jury not to consider that.
“COURT: The last statement of the District Attorney is not to be considered.”

As may be seen, the trial court took the necessary steps to remove any possible prejudicial effect the remarks may have had. Adair, supra; Retowsky, supra; Napier, supra. In addition, the trial court, in its oral charge, stated (Vol. V, R. p. 803):

“. . . Statements of counsel will not be considered as evidence and I have made this statement several times and I know all jurors and parties here understand that.”

Further, in argument, the State’s attorney made this statement (Vol. V, R. p. 798):

“. . . What he is asking this Court to do is to give him a license and on that license it is going to say, ‘To Bobby Joe Ellenburg, license to kill.’
“MR. WYLIE: Judge, we are going to object to this. This is not proper argument.
“COURT: Sustain.
“MR. WYLIE: We ask the Court to instruct the Jury to disregard the last statement and further instruct the District Attorney to confine his argument to that which is legal, not this illegal argument.
“COURT: Agree. Jury is to disregard the last statement of the District Attorney.”

The trial court, by instructing the jury to disregard the statement, cured any prejudicial effect the remark may have had. Fuller v. State, 269 Ala. 312, 113 So.2d 153.

Ill

The State’s attorney, during recross-examination of Mrs. Gladys Ellenburg, asked the following question (Vol. IV, R. p. 586):

“Q. Do you know whether or not Bobby Joe ever received welfare payments and food stamps?
“MR. LAIRD: We object to that, Judge.
“COURT: Sustained.”

As shown above, the question was not answered, and the rule is that improper questions not answered are harmless. Strickland v. State, 269 Ala. 573, 114 So.2d 407. Also, the appellant did nothing further than to object, and such objection was sustained. The appellant did not move to exclude such statement, or move for a mistrial, or invoke a further ruling by the trial court, therefore, this question is not properly presented for review. Veith v. State, 48 Ala.App. 688, 267 So.2d 480; Lambert v. State, 208 Ala. 42, 93 So. 708. Thus, the trial court properly denied appellant’s motion for a new trial based upon the above grounds.

IV

Appellant contends that the trial court committed reversible error in allowing certain photographs of the deceased to be introduced into evidence. He asserts that the photographs did not depict any material fact in issue, were cumulative, and introduced solely to inflame the minds of the jurors, and were gruesome. We disagree. The photographs did depict the character and location of the external wounds on the body of the deceased and such were therefore admissible, even though they were cumulative evidence based upon an undisputed matter. Snow v. State, 50 Ala.App. 381, 279 So.2d 552, cert. denied 291 Ala. 798, 279 So.2d 558 (1973); Robinson v. State, Ala.Cr.App., 342 So.2d 1331 (1977); Douglas v. State, Ala.Cr.App., 333 So.2d 880, and cases therein cited.

V

Appellant contends that the trial court committed reversible error in allowing certain articles of clothing, alleged to have been worn by the deceased, to be introduced into evidence.

The appellant asserts that the clothing had no probative value and was introduced solely to inflame the minds of the jurors.

In Harnage v. State, 49 Ala.App. 563, 274 So.2d 333, reversed on other grounds at 290 Ala. 142, 274 So.2d 352, affirmed after remand at 49 Ala.App. 751, 274 So.2d 356, cert. denied 290 Ala. 367, 274 So.2d 356, this Court, through Harris, J., stated:

“It has long been the law in this State that the clothing of the deceased, as well as that of the accused, are admissible in homicide cases, when such objects tend to corroborate or disprove, illustrate or elucidate, any other evidence, or to identify any of the parties, or connect the accused with the crime, although such evidence may have a tendency to bias or prejudice the jury, and elicit their sympathy for, or animosity toward either the deceased or the accused. Campbell v. State, 23 Ala. 44; Teague v. State, 245 Ala. 339, 16 So.2d 877; Barbour v. State, 262 Ala. 297, 78 So.2d 328.”

Therefore, the trial court did not err in admitting the items’ of clothing into evidence.

VI

The appellant contends that the trial court erred in denying his motion for a new trial based upon certain newly discovered evidence.

At the hearing on the motion for a new trial, appellant’s counsel called Mrs. Patricia Ellenburg, wife of appellant, to testify. Mrs. Ellenburg stated that she witnessed the beating of the deceased, and that Paul Ellenburg participated in the altercation. She stated that after the incident she left the Ellenburg family and that her whereabouts were unknown to her husband, the appellant.

The State’s attorney, on cross-examination of Mrs. Ellenburg, brought out testimony contradictory to that of every witness who testified at trial.

In Veith v. State, 48 Ala.App. 688, 267 So.2d 480, we find this statement:

“The general rule governing newly discovered evidence is to the effect that such must be shown to be unknown to appellant and could not have been discovered before trial in the exercise of due diligence. Further, that such evidence must be such as not merely cumulative or for impeachment merely, but rather must be of such nature as to be sufficient to probably change the result of the trial. Lackey v. State, 41 Ala.App. 46, 123 So.2d 186; Washington v. State, 259 Ala. 104, 65 So.2d 704; Hodge v. State, 32 Ala.App. 283, 26 So.2d 274.”

We are of the opinion that the trial court properly denied the motion for new trial. Zuck v. State, 57 Ala.App. 15, 325 So.2d 531, cert. denied 295 Ala. 430, 325 So.2d 539.

VII

Appellant contends that the trial court erred by failing to instruct the jury to disregard certain illegal and incriminating evidence which had been wrongfully exhibited to the jury (Vol. Ill, R. p.' 467).

The State called Officer Charles Binkley to the stand. When Binkley entered the courtroom, he carried with him two articles of proposed evidence, consisting of a beer can and a bottle of whiskey. The trial judge immediately instructed the jury to leave the courtroom. Outside the presence of the jury, the trial judge instructed Bink-ley to conceal the items and stated that they would be excluded. The appellant then asked for a mistrial, and the trial court denied this motion. Appellant then asked the trial court to instruct the jury, when they came back in, not to consider the two items in reaching their verdict. The trial court did not rule on appellant’s request and the appellant never asked for a further ruling. Absent an objection to the lack of a ruling, we have nothing to review. Mitchell v. State, Ala.Cr.App., 338 So.2d 524; Wade v. State, 49 Ala.App. 601, 274 So.2d 626.

We have carefully examined this record and find no error therein. The judgment below is

AFFIRMED.

All the Judges concur.


author: PER CURIAM.

text:
    WESLEY CONSTRUCTION COMPANY, etc., Petitioner, v. STRAN-STEEL CORPORATION, etc., Respondent.
    No. 49353.
    Supreme Court of Florida.
    Sept. 22, 1977.
    Rehearing Denied Jan. 31, 1978.
    Richard A. Burt of the Law Offices of Edward C. Vining, Jr., Miami, for petitioner.
    Milton R. Adkins of Pallot, Stern, Proby & Adkins, Miami, for respondent.
   PER CURIAM.

The petition for writ of certiorari reflected apparent jurisdiction in this Court. We issued the writ and have heard argument of the parties. Upon further consideration of the matter, we are of the opinion that certiorari should not be granted.

The writ is hereby discharged.

It is so ordered.

OVERTON, C. J., and ADKINS, BOYD, ENGLAND and HATCHETT, JJ., concur.

SUNDBERG and KARL, JJ., dissent.


text:
    Leroy SMITH, Petitioner, v. STATE of Florida, Respondent.
    No. 50395.
    Supreme Court of Florida.
    Sept. 30, 1977.
    Rehearing Denied Jan. 31, 1978.
    Michael J. Minerva, Public Defender, Tallahassee, and Louis G. Carres, Asst. Public Defender, Tallahassee, for petitioner.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Anthony J. Golden, Asst. Atty. Gen., West Palm Beach, for respondent.
   PER CURIAM.

The petition for writ of certiorari reflected probable jurisdiction in this Court. We issued the writ but dispensed with oral argument. After a thorough review of the briefs and upon further consideration of the matter, we have determined that the Court is without jurisdiction. Therefore, the writ of certiorari must be and is hereby discharged.

It is so ordered.

OVERTON, C. J., and ADKINS, ENGLAND, SUNDBERG, HATCHETT and KARL, JJ., concur.

BOYD, J., dissents.


author: BOYD, Justice.

text:
    Dewayne F. NOBLE, III, Petitioner, v. STATE of Florida, Respondent.
    No. 50634.
    Supreme Court of Florida.
    Oct. 20, 1977.
    Rehearing Denied Jan. 31, 1978.
    Michael M. Corin and Margaret Good, Asst. Public Defenders, Tallahassee, for petitioner.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Charles W. Musgrove, Asst. Atty. Gen., Tallahassee, for respondent.
   BOYD, Justice.

Dewayne Frank Noble’s petition for cer-tiorari was granted by this Court and the writ was issued to review the decision in this cause by the District Court of Appeal, First District, reported at 338 So.2d 904. The writ was issued because the decision conflicts with State ex rel. Poe v. Allen, 196 So.2d 745 (Fla.1967).

Noble was convicted in the Circuit Court, for Gilchrist County, of larceny of an automobile. In a consolidated order of judgment and sentence, dated May 10, 1976, the Circuit Court ordered a sentence of five years imprisonment at hard labor, the initial three to be served with no credit for “good time or gain time” and the following two to be stayed while Noble was to be on probation. Noble filed a Notice of Appeal in the First District Court for review of “[his] judgment and conviction dated May 10, 1976.” The Notice did not inform the parties and the courts that Noble sought review of the sentence, and indeed, the assignments of error specified “evidence insufficient to sustain conviction” as the only error in the proceedings below. Noble filed a request to supplement the assignments of error, however, to include the error of imposing a split sentence disallowing the usual credit. The request was granted on August 25, 1976.

In its decision the District Court declined to consider the sentencing error because the Notice of Appeal did not state that Noble intended to appeal his sentence. In State ex rel. Poe v. Allen, supra, at 746, defective notice was found to be cured by the following factors: proper identification of the litigation in the Notice, clear intent to prosecute an effective appeal, specification of errors reviewable, presentation of a proper record and the absence of prejudice to the parties on the opposite side. Each of these factors is present in this case. The opinion of the District Court recites that the only question presented by Noble’s brief is whether the sentence was lawful. And the opinion quotes from the trial court order the sentence imposed. Likewise, the litigation is properly identified in the Notice, the sentencing error was listed in the supplemental assignment, and prejudice to the State was not mentioned in the opinion, nor is it observable in the record. We think Allen was well-decided and we reaffirm its rationale. Technicalities ought not to defeat the administration of justice. We hold in favor of Noble.

Such a holding has more to commend it than harmonization of the conflict with Allen in favor of the Allen reasoning. The holding is in accord with our constitutional scheme that the District Courts of Appeal hear appeals taken as a matter of right, Article V, Section 4(b)(1), Florida Constitution, and the constitutional intent, evinced by Article V, Section 2(a), that substance supersede form in this State’s judicial process.

For the foregoing reasons the decision of the District Court is quashed and the cause is remanded with the direction that the error in sentencing raised by Noble be considered.

It is so ordered.

ADKINS, SUNDBERG, HATCHETT and KARL, JJ., concur.

OVERTON, C. J., and ENGLAND, J., dissent.

      . This case is not to be confused with one where the defect is jurisdictional.

      . “District courts of appeal shall have jurisdiction to hear appeals, that may be taken as a matter of right, from final judgments or orders of trial courts, including those entered on review of administrative action, not directly ap-pealable to the supreme court or a circuit court. . . . ”

      . “The supreme court shall adopt rules for . the transfer to the court having jurisdiction of any proceeding when the jurisdiction of another court has been improvidently invoked, and a requirement that no cause shall be dismissed because an improper remedy has been sought..."

      .The opinion of the District Court could be read as a refusal to consider the sentencing error because it was not raised in the trial court. But, fundamental error need not be raised before the trial court for it to be considered at the appellate level.


author: KARL, Justice.

text:
    STATE of Florida, Plaintiff, v. Ronald BASILIERE, Defendant.
    No. 50658.
    Supreme Court of Florida.
    Oct. 20, 1977.
    Rehearing Denied Jan. 30, 1978.

      Richard E. Gerstein, State Atty., and George Volsky, Asst. State Atty., Miami, for plaintiff.
    Bennett H. Brummer, Public Defender, Julian S. Mack and Thomas S. Wilson, Jr., Asst. Public Defenders, Miami, for defendant.
   KARL, Justice.

We have before us certified questions from the Circuit Court of the Eleventh Judicial Circuit, in and for Dade County, relating to the use of deposition testimony as evidence in a criminal trial upon a finding of unavailability of the witness. It appears that the questions presented herein are determinative of the cause and are without controlling precedent in this state. We have jurisdiction to answer the certified questions. Florida Appellate Rule 4.6, Jaworski v. City of Opa-Locka, 149 So.2d 33 (Fla.1963), Boyer v. City of Orlando, 232 So.2d 169 (Fla.1970).

Ronald Basiliere was charged with aggravated battery upon Edward Daly. Defendant’s attorney filed a notice to take the deposition of Daly pursuant to Florida Criminal Procedure Rule 3.220(d). The victim appeared at the deposition and was examined, under oath and in the presence of an official court reporter, by defense counsel although defendant, in custody at the Dade County jail, was not present during the taking of said deposition. Following the taking of his deposition, the victim became unavailable as a result of his death from natural causes. Because the deposition testimony is material to the state’s case, the state will be unable to proceed with the case without the deposition testimony. Therefore, the state has filed a motion to use the deposition testimony of the victim as evidence in the defendant’s trial.

The trial court has certified the following questions as dispositive of the cause:

“I. Whether the use of the deposition testimony at trial violates defendant’s confrontation rights under the Sixth Amendment to the United States Constitution and under Article I, Section 16, Florida Constitution, inasmuch as the defendant was not present during the taking of the deposition by his attorney and defendant received no notice that said deposition could be used at his trial.
“II. Whether Fla.R.Crim.P. 3.220(d), which provides for discovery depositions and says that they ‘may be used by any party for the purpose of contradicting or impeaching the testimony of the deponent as a witness,’ yet does not provide, as does the comparable Fla.R.Civ.P. 1.330(a)(3), for the use of said deposition as evidence at trial upon a finding of unavailability of the witness, precludes the use of the deposition testimony as evidence at trial upon the finding of unavailability of the witness.”

Section 16 of the Declaration of Rights, Florida Constitution, provides in pertinent part:

“In all criminal prosecutions the accused . shall have the right . to confront at trial adverse witnesses.”

Florida Criminal Procedure Rule 3.220(d) provides in part:

“At any time after the filing of the indictment or information the defendant may take the deposition upon oral examination of any person who may have information relevant to the offense charged. The deposition shall be taken in a building where the trial may be held, such other place agreed upon by the parties or where the trial court may designate by special or general order. The party taking the deposition shall give written notice to each other party. The notice shall state the time and place the deposition is to be taken and the name of each person to be examined. After notice to the parties the court may, for good cause shown, extend or shorten the time and may change the place of taking. Except as provided herein, the procedure for taking such deposition, including the scope of the examination, shall be the same as that provided in the Florida Rules of Civil Procedure. Any deposition taken pursuant hereto may be used by any party for the purpose of contradicting or impeaching the testimony of the deponent as a witness. . . . ”

Rule 3.190(j), Florida Criminal Procedure Rules, which relates to depositions to perpetuate testimony, provides:

“(1) After an indictment or information upon which a defendant is to be tried is filed, the defendant or the State may apply for an order to perpetuate testimony. The application shall be verified or supported by the affidavits of credible persons that a prospective witness resides beyond the territorial jurisdiction of the court or may be unable to attend or be prevented from attending a trial or hearing, that his testimony is material and that it is necessary to take his deposition to prevent a failure of justice. The court shall order a commission to be issued to take the deposition of the witnesses to be used in the trial and that any designated books, papers, documents or tangible objects, not privileged, be produced at the same time and place. If the application is made within ten days before the trial, date, the court may deny the application.
“(3) If the deposition is taken on the application of the State, the defendant and his attorney shall be given reasonable notice of the time and place set for the deposition. The officer having custody of the defendant shall be notified of the time and place and shall produce the defendant at the examination and keep him in the presence of the witness during the examination. . . . ”

We find that, under the circumstances presented sub judice and rules of this Court, the deposition of the victim is not admissible as evidence in defendant’s trial.

Defendant was in custody at the time the deposition was taken. In order to perpetuate Daly’s testimony, the state would have had to proceed under Fla.R. Crim.P. 3.190(j), which requires, inter alia, the defendant’s presence during the examination of the witness.

Blackwell v. State, 79 Fla. 709, 86 So. 224 (1920), involved inter alia the objection to introduction of testimony given at a former trial of the case of two witnesses who had become unavailable for the new trial due to illness. This Court held:

“Where a defendant has been confronted with the witnesses against him in a former trial of the same cause, and an opportunity was afforded to the defendant to fully cross-examine the witnesses, the testimony given by witnesses on such former trial may be proved in the manner provided by law at a subsequent trial as secondary evidence, if it is satisfactorily shown that the witnesses have since died, become insane, left the jurisdiction of the court, or are sick and unable to attend or to testify; and the admission of such evidence under the circumstances does not violate the organic right of an accused to meet the witnesses against him face to face. [Cases cited.]”

In Richardson v. State, 247 So.2d 296 (Fla.1971), this Court was confronted with the question of whether the trial court erred in allowing several state witnesses to testify as to their recollection of one Ernell Washington’s testimony at Richardson’s preliminary hearing regarding Richardson’s confession to the poisoning of his children. Richardson was present and was represented by counsel at the time Washington testified. At this time, defense counsel cross-examined Washington. Washington was murdered before trial. No court reporter had been present at the preliminary hearing to transcribe his testimony. Therein, this Court explicated:

“A time-honored and universally recognized exception to the hearsay rule is the so-called ‘former testimony’ exceptions. Under this rule, evidence of third parties as to the testimony of a deceased witness given under oath in a preliminary hearing or other judicial proceeding where the defendant was represented by counsel, had opportunity to confront and cross-examine the witness, is admissible in a subsequent trial.
“There are statements in the Davis case [Davis v. State, 65 So.2d 307 (Fla.1953)] to the effect that former testimony given at a preliminary hearing is not entitled to be received on an equal basis with testimony given at a former trial because of the nature of the preliminary hearing.. We have found no authorities recognizing such a distinction. Whether the former testimony was given at a preliminary hearing or at a former trial, is immaterial so long as there was full and adequate opportunity to confront and cross-examine the witness.” Richardson, supra, at pp. 300, 302.

The Second District Court of Appeal, in Chapman v. State, 302 So.2d 136 (Fla.2d DCA, 1974), in reversing a rape conviction based inter alia on incriminating deposition testimony of a telephone company employee who had moved to New York, opined:

“The defendant, who was in custody at the time, was neither notified nor brought to the taking of the deposition as the rule unmistakably requires. . . ”
“The use of a deposition, taken in the involuntary absence of a defendant, as evidence against him violates the defendant’s right to be personally present during his trial and his Sixth Amendment right to confront witnesses. The presence of defendant’s counsel, considering the unreasonably short notice he was given of the deposition taking, is insufficient to cure the error. . . . ” Chapman v. State, supra, at 138.

Although, holding that defendant can lose his right to be present at trial if, after being warned by the judge that he will be removed if his disruptive behavior continues, he continues to act in such a disorderly, disrespectful and disruptive manner that his trial cannot be carried on with him in the courtroom, the Supreme Court of the United States, in Illinois v. Allen, 397 U.S. 337, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970), recognized the right to be present in the courtroom at every stage of his trial, as one of the most basic of the rights guaranteed by the confrontation clause.

Elaborating on the right of the accused to be confronted with the witnesses against him, the Supreme Court of the United States, in Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974), described the right as meaning more than being allowed to confront the witnesses physically and as securing as its primary interest the right of cross-examination and explained:

“Cross-examination is the principal means by which the believability of a witness and the truth of his testimony are tested. Subject always to the broad discretion of a trial judge to preclude repetitive and unduly harassing interrogation, the cross-examiner is not only permitted to delve into the witness’ story to test the witness’ perceptions and memory, but the cross-examiner has traditionally been allowed to impeach, i. e., discredit, the witness. One way of discrediting the witness is to introduce evidence of a prior criminal conviction of that witness. By so doing the cross-examiner intends to afford the jury a basis to infer that the witness’ character is such that he would be less likely than the average trustworthy citizen to be truthful in his testimony. The introduction of evidence of a prior crime is thus a general attack on the credibility of the witness. A more particular attack on the witness’ credibility is effected by means of cross-examination directed toward revealing possible biases, prejudices, or ulterior motives of the witness as they may relate directly to issues or personalities in the case at hand. The partiality of a witness is subject to exploration at trial, and is ‘always relevant as discrediting the witness and affecting the weight of his testimony.’ 3A J. Wigmore Evidence § 940 p 775 (Chadb-ourn rev 1970). We have recognized that the exposure of a witness’ motivation in testifying is a proper and important function of the constitutionally protected right of cross-examination.”

Defendant contends that it cannot be said that he waived his constitutional right of confrontation since, at the time of deposition, defendant had no idea that deponent would die and that his only opportunity to confront the deponent would be at the deposition. According to the certificate of facts, the subject deposition is essential to the prosecution of the defendant. Yet, when the defendant sought discovery through means of deposition, it was only to ascertain facts upon which the charge was based. Being unaware that this deposition would be the only opportunity he would have to examine and challenge the accuracy of the deponent’s statements, defendant could not have been expected to conduct an adequate cross-examination as to matters of which he first gained knowledge at the taking of the deposition.

As to the second question certified, we hold that Rule 3.220(d), Florida Criminal Procedure Rules, providing that depositions may be used for the purpose of contradicting or impeaching testimony of the deponent as a witness provides the exclusive use of depositions in criminal proceedings unless Rule 3.190(j), Florida Criminal Procedure Rules, is met.

Accordingly, for the foregoing reasons, the questions certified are answered in the affirmative.

It is so ordered.

OVERTON, C. J., and ADKINS, BOYD, ENGLAND, SUNDBERG and HATCH-ETT, JJ., concur.

      . Relative to the admissibility of testimony of a witness (one of the victims) given at a former trial of defendant Stubbs on the same charges, the Supreme Court of the United States in Mancusi v. Stubbs, 408 U.S. 204, 92 S.Ct. 2308, 2314, 33 L.Ed.2d 293 (1972), held:
      “Since there was an adequate opportunity to cross-examine Holm at the first trial, and counsel for Stubbs availed himself of that opportunity, the transcript of Holm’s testimony in the first trial bore sufficient ‘indicia of reliability' and afforded ' “the trier of fact a satisfactory basis for evaluating the truth of the prior statement,” ’ Dutton v. Evans, 400 U.S. 74, 89, 91 S.Ct. 210, 27 L.Ed.2d 213. The witness Holm, consistently with the requirement of the Confrontation Clause, could have been and was found by the trial court to be unavailable at the time of the second trial. There was, therefore, no constitutional error in permitting his prior-recorded testimony to be read to the jury at that trial, and no constitutional infirmity in the judgment of conviction resulting from that trial that would prevent the New York courts from considering that conviction in sentencing Stubbs as a second offender. The judgment of the Court of Appeals is therefore reversed.
      Reversed.”

      . The Supreme Court, in Barber v. Page, 390 U.S. 719, 725, 88 S.Ct. 1318, 1322, 20 L.Ed.2d 255 (1968), stated:
      “The State argues that petitioner waived his right to confront Woods at trial by not cross-examining him at the preliminary hearing. That contention is untenable. Not only was petitioner unaware that Woods would be in a federal prison at the time of his trial, but • he was also unaware that, even assuming Woods’ incarceration, the State would make no effort to produce Woods at trial. To suggest that failure to cross-examine in such circumstances constitutes a waiver of the right of confrontation at a subsequent trial hardly comports with this Court’s definition of a waiver as ‘an intentional relinquishment or abandonment of a known right or privilege.’ Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938); Brookhart v. Janis, 384 U.S. 1, 4, 86 S.Ct. 1245, 16 L.Ed.2d 314 (1966).”


text:
    Minnie Berger SHOR, and Allstate Insurance Company, a Foreign Corporation, Petitioners, v. Gerald PAOLI, Sweet & Blossom, Inc., and Fireman’s Fund Insurance Company, Respondents.
    No. 51915.
    Supreme Court of Florida.
    Nov. 17, 1977.
    Rehearing Denied Jan. 27, 1978.
    Marjorie D. Gadarian, of Jones, Paine & Foster, West Palm Beach, for petitioners.
    Henry Burnett, of Fowler, White, Burnett, Hurley, Banick & Knight, Miami, for respondents.
   KARL, Justice.

This cause is before us on petition for writ of certiorari granted to review the decision of the District Court of Appeal, Fourth District, reported at 345 So.2d 789 (Fla. 4th DCA 1977).

The District Court has certified the following question for our determination:

“Does the common law doctrine of in-terspousal immunity control over the uniform contribution among joint tort-feasors act (75-108 Laws of Florida, Section 768.31, Florida Statutes) to prevent one tortfeasor from seeking a contribution from another tortfeasor when the other tortfeasor is the spouse of the injured person who received damages from the first tortfeasor?”

We have jurisdiction pursuant to Article V, Section 3(b)(3), Florida Constitution.

Petitioner’s husband, David Shor, was a passenger in a motor vehicle operated by petitioner when her automobile and a vehicle operated by respondent Paoli, owned by Sweet & Blossom, Inc., collided, causing David Shor to sustain personal injuries. Respondent sued petitioner, petitioner sued respondent, and David Shor, asserting a claim for personal injuries, intervened. The jury found Paoli 65% at fault, petitioner 35% at fault and awarded David Shor $12,-000 against respondents. Respondents satisfied David Shor’s judgment against them and, thereafter, sought contribution from petitioner as a joint tortfeasor. She defended on grounds of interspousal immunity. Finding that interspousal immunity barred the action for contribution, the trial court entered judgment in favor of petitioners.

The District Court of Appeal, Fourth District, reversed the judgment of the trial court and reasoned:

“The doctrine of family or interspousal immunity is based on the desirability of the preservation of the family unit. The law of contribution of joint tortfeasors is meant to apportion the responsibility to pay innocent injured third parties between or among those causing the injury.
“In the case at bar it was determined that both Paoli and Shor caused the injury. Shor’s husband collected 100% of his damages from Paoli. To say that Shor doesn’t have to contribute and account for her wrongdoing would be unfair to Paoli and a windfall to Shor. This is not a case where the husband sued the wife on account of her negligence so we are not doing any real damage to the doctrine. This is a case where the joint tortfeasor sued the joint tortfeasor and we are ruling in support of that statute.”

We agree with the rationale of the District Court of Appeal and find that it has correctly answered the certified question in the negative. Insofar as Mieure v. Moore, 330 So.2d 546 (Fla. 1st DCA 1976), is inconsistent herewith, it is overruled.

Accordingly, we approve the decision of the District Court under review and discharge the writ.

It is so ordered.

ADKINS, Acting C. J., and ENGLAND, SUNDBERG and HATCHETT, JJ., concur.