author: CROSS, Judge.

text:
    Randal L. HIVELY, Appellant, v. STATE of Florida, Appellee.
    No. 75-602.
    District Court of Appeal of Florida, Fourth District.
    July 16, 1976.
    Rehearing Denied Sept. 1, 1976.

      Richard L. Jorandby, Public Defender, and Frank B. Kessler, Asst. Public Defender, and Blair McCune, Legal Intern, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Anthony J. Golden, Asst. Atty. Gen., West Palm Beach, for appellee.
   CROSS, Judge.

Appellant-defendant, Randal L. Hively, appeals a judgment of conviction and imposition of sentence for unlawful possession of cannabis (marijuana) in excess of five grams. We reverse.

On December 5, 1974 Deputy Sheriffs Lockaby, Verity, Wilkerson and Bowden of the Orange County Sheriff’s Department were summoned to the Stone Apple Bar and Grill in Orlando, Florida, to disperse a group of people loitering in said establishment’s parking lot. The deputies there observed Randal L. Hively, and one Leslie Bardon inside an automobile smoking a substance, possibly marijuana. Deputies Lock-aby, Verity and Wilkerson approached the automobile. The two occupants of the automobile were requested to exit therefrom and produce identification. The odor of marijuana was detected. Looking into the automobile, Deputies Lockaby and Verity observed a pipe on the console between the automobile’s front bucket seats and a bag of marijuana on the floor in front of the automobile’s driver’s seat. Defendant and Barbon were placed under arrest. A search of the automobile revealed two “roaches,” butts from marijuana cigarettes, and a “roach clip.”

Defendant was charged by information with unlawful possession of cannabis (marijuana) in excess of five grams in violation of Section 893.13(1) (e), Florida Statutes 1973. Trial was by jury. At the close of the state’s evidence and again at the close of all the evidence in the cause, defendant moved for a judgment of acquittal on the ground that the state had failed to present evidence sufficient to demonstrate that the defendant knew of the presence of the cannabis in the automobile. These motions were denied 'by the trial court. The jury found the defendant guilty of the offense charged in the information. Defendant was adjudged guilty and sentenced to two years in prison. It is from this judgment and sentence that defendant appeals.

The question presented for our determination in this appeal is whether the trial court erred in denying the defendant’s motions for a judgment of acquittal.

Section 893.13(1)(e), Florida Statutes 1973, provides:

“It is unlawful for any person to be in actual or constructive possession of a controlled substance unless such controlled substance was lawfully obtained from a practitioner or pursuant to a valid prescription or order of a practitioner while acting in the course of his professional practice . . . .”

Cannabis is a controlled substance. Section 893.02(3) and Section 893.03(1) (c), Florida Statutes 1973.

For the purposes of § 893.13(1)(e), actual possession exists where the accused has physical possession of the controlled substance and knowledge of such physical possession. Constructive possession exists where the accused without physical possession of the controlled substance knows of its presence on or about his premises and has the ability to maintain control over said controlled substance. Willis v. State, 320 So.2d 823 (Fla.App.1975). See also Medlin v. State, 279 So.2d 41 (Fla.App.1973); Griffin v. State, 276 So.2d 191 (Fla.App.1973).

If the premises on which the controlled substance is found is in the exclusive possession and control of the accused, knowledge of the presence of said controlled substance on the premises, coupled with accused’s ability to maintain control over it, may be inferred. If the premises on which the controlled substance is found is not in the exclusive but only in the joint possession of the accused, knowledge of the presence of said controlled substance on the premises and the accused’s ability to maintain control over it will not be inferred but must be established by proof. Such proof may consist either of evidence establishing that the accused had actual knowledge of the presence of the controlled substance on the premises, or evidence of incriminating statements and circumstances from which a jury might lawfully infer knowledge by the accused of the presence of the controlled substance on the premises. Willis v. State, supra; Smith v. State, 279 So.2d 27 (Fla.1973); Frank v. State, 199 So.2d 117 (Fla.App.1967).

Turning to the instant case, it is apparent that defendant’s conviction must rest on constructive possession in view of the fact that defendant was not physically possessed of the marijuana. The evidence shows that the defendant was not in exclusive possession or control of the automobile in which the marijuana was found. The issue therefore becomes whether or not the evidence was sufficient to present a jury issue on the question of the defendant’s knowledge of the presence of the marijuana in the automobile and ability to maintain control over the same.

The state relies on the following circumstantial evidence as proof that the defendant knew of the presence of the marijuana: the bag containing marijuana found in close proximity to the defendant; there was a pipe on the console between the automobile’s bucket seats; there were two roaches and a roach clip in the automobile ashtray; and there was present in the automobile the odor of marijuana. Evidence also indicates, however, that the automobile did not belong to the defendant but was borrowed by him to take Barbón home; individuals other than the defendant had been seen in the automobile shortly before the defendant borrowed the automobile; and the defendant did not see the bag of marijuana, the roaches or the roach clip. Thus arises the question as to whether someone other than the defendant placed the marijuana in the automobile without defendant’s knowledge. From the foregoing we are of the opinion that the evidence presented is not sufficient to present a jury issue on the question of the defendant’s knowledge of the presence of the marijuana in the automobile, and that the trial court erred in denying defendant’s motion for a judgment of acquittal.

Accordingly, the judgment is reversed, the sentence is vacated and set aside, and the cause remanded with instructions to discharge the defendant.

Reversed and remanded, with instructions.

MAGER, C. J.; and DOWNEY, J., concur.


source: Caselaw Access Project

author: PER CURIAM:

license: Public Domain

text:
    Mildred A. SELLERS, as Administratrix of the Estate of Annelle Sellers, Deceased, Appellant, v. Charles Edwin SKIPPER et al., Appellees.
    No. AA-215.
    District Court of Appeal of Florida, First District.
    July 27, 1976.
    Mayo C. Johnston of Davenport, Johnston, Harris, Gerde & Harrison, William A. Cooper, Jr., Panama City, for appellant.
    Lynn C. Higby of Isler, Higby, Brown & Smoak, Bill R. Hutto of Syfrett, Hutto, O’Brien & Paulk and J. Robert Hughes of Barron, Redding, Boggs & Hughes, Panama City, for appellees.
   PER CURIAM:

Interlocutory appeal dismissed. Hanley v. Liberty Mutual Insurance Company, Fla., 334 So.2d 11, opinion filed May 28, 1976, rehearing denied July 16, 1976.

RAWLS, Acting C. J., and McCORD and MILLS, JJ., concur.


author: PER CURIAM.

text:
    Willard L. CARROLL, Appellant, v. Agatha Ann CARROLL, Appellee.
    No. AA-161.
    District Court of Appeal of Florida, First District.
    July 20, 1976.
    Rehearing Denied Sept. 1, 1976.

      W. Paul Thompson of Thompson & Ad-kinson, DeFuniak Springs, for appellant.
    W. Flemming Ward, DeFuniak Springs, for appellee.
   PER CURIAM.

Appellant-father appeals a post decretal order entered by the trial court continuing the award of the custody of a minor child of the parties to the maternal grandmother and awarding appellee-mother an attorney’s fee in the sum of $300.00.

This struggle for the custody of the parties’ three minor children has been continuous since the complaint for divorce was filed by the mother on April 7, 1970. Custody of the minor children was initially awarded to the mother and was continued until August 26, 1974, at which time the trial court awarded custody of the two older minor children to the father and custody of the youngest child to Mrs. Betty Bur-kett, the maternal grandmother. In May of 1975, the father filed a petition to modify seeking custody of the youngest child. The mother answered and counterclaimed for custody of the three minor children. The trial judge, in denying each party’s prayer for modification of the prior custody order, found that each had failed to prove a material change of circumstances that would warrant a modification. ' We agree.

As stated by the Department of Family Services in a report to the court: “. The only main problem involving the children is the constant bickering between the father, the mother, and the maternal grandmother, which we feel is having an emotionally damaging effect on . the children.” “Acrimonious” is a mild adjective to describe the conduct of the father toward the mother and maternal grandmother, who fully retaliated.

The award of attorney’s fees is reversed. The primary contest in these proceedings was between the father and the maternal grandmother. Custody of all three minor children was actively sought by the mother, but denied by the trial court. The record does not justify an award of attorney’s fees to the mother, who did not prevail.

Affirmed in part; reversed in part.

BOYER, C. J., RAWLS, J., and WARREN, LAMAR, Associate Judge, concur.

      . The fourth and oldest minor child, a girl, was granted permission by the mother to marry when the child was 14 years old. This emancipated girl was separated from her husband and living with the father at the time the appealed order was entered.

      . On July 14, 1975, the maternal grandmother filed a petition for writ of habeas corpus alleging that the father, in exercising his right of visitation with the youngest child, carried the child to his home and wrongfully withheld custody from the grandmother. The trial court granted the writ entitled “Custody Order”, finding that the maternal grandmother was “the lawful custodian of the said child”.


author: BY THE COURT.

text:
    Thomas Clyde SIMS, Appellant (Defendant), v. STATE of Florida, Appellee (State).
    No. BB-416.
    District Court of Appeal of Florida, First District.
    July 23, 1976.
    Thomas Clyde Sims, in pro. per.
    Robert L. Shevin, Atty. Gen., and Richard W. Prospect, Asst. Atty. Gen., for ap-pellee.
   BY THE COURT.

Upon considering the briefs and the record, we find no reversible eror.

Accordingly, the judgment of conviction and sentence are affirmed.

BOYER, C. J., and MILLS and Mc-CORD, JJ., concur.


text:
    William Edward BLIZZARD, Appellant (Defendant), v. STATE of Florida, Appellee (State).
    No. AA-482.
    District Court of Appeal of Florida, First District.
    Aug. 2, 1976.
    Richard W. Ervin, III, Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Richard L. Wilson, Asst. Atty. Gen., for appel-lee.
   BY THE COURT.

Upon considering the briefs and the record, we find no reversible error.

Accordingly, the judgment of conviction and sentence are affirmed.

BOYER, C. J., and MfcCORD and MILLS, JJ., concur.


author: SMITH, Judge. BOYER, Chief Judge

text:
    In the Interest of R. L. J., a child.
    No. Z-475.
    District Court of Appeal of Florida, First District.
    July 19, 1976.
    Rehearing Denied, Sept. 1, 1976.

      Richard W. Ervin, III, Public Defender, and Michael J. Minerva, Asst. Public Defender, Tallahassee, for appellant.
    Robert L. Shevin, Atty. Gen., and Andrew W. Lindsey, Asst. Atty. Gen., Tallahassee, for appellee.
   SMITH, Judge.

Wakulla County deputy sheriff Bailey asked appellant R. L. J., then 14 years old, to go to the sheriff's office for questioning. Bailey there gave the boy warnings required for custodial interrogation by Miranda v. Arizona, elicited his confession to breaking and entering a dwelling with intent to commit a misdemeanor, and delivered him to an intake officer of the Division of Youth Services. R. L. J. was adjudicated a delinquent and he now appeals, urging that evidence of his confession should have been suppressed. His lawyer asserts that deputy Bailey made “an unconstitutional arrest” and that neither Miranda warnings nor other intervening circumstances “sufficiently attenuated the taint” of the illegal arrest to “break, for Fourth [and Fourteenth] Amendment purposes, the causal connection between the illegality and the confession.” Brown v. Illinois, 422 U.S. 590, 592, 603, 95 S.Ct. 2254, 2256, 2261, 45 L.Ed.2d 416, 420, 427 (1975); Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). A parallel question arises under Section 12 of Florida’s Declaration of Rights, which protects “[t]he right of the people to be secure in their persons against unreasonable seizures. . . . ”

Deputy Bailey had a well-founded suspicion, not amounting to probable cause for arrest, that appellant participated in recent burglaries. Bailey decided to question the youth and went to his home, where appellant’s father told Bailey that appellant was with his brother-in-law, also a suspect. Bailey explained his wish to question appellant at the sheriffs office and, according to Bailey’s testimony, appellant’s father replied that he had no objection. Bailey drove to the brother-in-law’s house and found appellant in the yard with his brother-in-law. When he asked appellant “if I might talk with him for a little while down at the sheriff’s office,” appellant inquired, “Why?” Bailey replied that “I would rather wait and go to the sheriff’s office and I would explain it to him there.” Appellant then “agreed to ride down to the sheriff’s office with me in order for me to talk with him.” Bailey did not advise the youth he was not obligated to go along for questioning. Appellant explained:

“Well, I figured that him a law officer, you had to, you now, I had to go with him.”

At the sheriff’s office Bailey read Miranda warnings to appellant from a card and after 30 to 40 minutes of questioning, obtained the confession which was received in evidence.

I.

Bailey made no arrest “in the technical and restricted sense” when he asked appellant to accompany him to headquarters for questioning. Melton v. State, 75 So.2d 291, 294 (Fla.1954); Range v. State, 156 So.2d 534 (Fla.App.2d, 1963); Mallory v. United States, 354 U.S. 449, 77 S.Ct. 1356, 1 L.Ed.2d 1479 (1957). But the absence of a formal arrest does not end the inquiry. The Fourth Amendment monitors arrests whether announced or unannounced, and it applies a rule of reason to both greater and lesser intrusions on protected privacy. Terry v. Ohio, 392 U.S. 1, 16, 88 5.Ct. 1868, 1877, 20 L.Ed.2d 889, 903 (1968). Thus, regardless of whether deputy Bailey thought he had “arrested” appellant, and in spite of his disclaimer, any personal seizure unjustified by Fourth Amendment standards must be shown, under the rule of Wong Sun and Brown, not to have influenced the confession on which the State seeks to rely.

The threshold issue, then, is whether there was a personal seizure as defined in Terry, 392 U.S. at 19 n. 16, 88 S.Ct. at 1879, 20 L.Ed.2d at 905:

“Obviously, not all personal intercourse between policemen and citizens involves ‘seizures’ of persons. Only when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen may we conclude that a ‘seizure’ has occurred.”

The record shows that appellant moved progressively into a state of custody from the moment deputy Bailey asserted authority to request appellant’s presence at headquarters without explanation. By increments appellant was thereafter “deprived of his freedom of action” in a “significant way.” Miranda, 384 U.S. at 444, 86 S.Ct. at 1612, 16 L.Ed.2d at 706. He was 14 and a felony suspect. At first he tentatively challenged the requested interview by asking its purpose. When Bailey parried that inquiry, and so tacitly asserted his will and authority to proceed without explanation, the acquiescing youth was taken by patrol car for questioning at headquarters “in a police-dominated atmosphere.” Miranda, 384 U.S. at 445, 86 S.Ct. at 1612, 16 L.Ed.2d at 707.

Considering appellant’s youth, the deputy’s methods and the purposeful formality of the headquarters visitation, we find that appellant’s liberty was restrained to a degree cognizable under the Fourth Amendment. The deputy’s Miranda warnings were themselves an acknowledgment— though assuredly not a conclusive one — that the imminent interrogation was custodial and therefore attended by guaranties of the Fifth Amendment, which “is in ‘intimate relation’ with the fourth.” Boyd v. United States, 116 U.S. 616, 633, 6 S.Ct. 524, 534, 29 L.Ed. 746, 752 (1886); Brown, 422 U.S. at 601, 95 S.Ct. at 2260, 45 L.Ed.2d at 425. Appellant was in custody.

II.

Miranda warnings were given and there was no evidence that appellant’s confession was coerced by physical deprivation, persistent interrogation or other constraints which the Fifth and Fourteenth Amendments have long been held to condemn. See Culombe v. Connecticut, infra n. 15. But this was no momentary on-scene intrusion of the sort which the Fourth Amendment accommodates for field investigation. Appellant’s detention was more concentrated, lengthier and more purposeful than that, and his privacy interests were therefore more substantial than those of one who, though free to go, is stopped on the street for routine questioning.

It is argued for appellant that a person under 18 cannot voluntarily submit to detention for interrogation in Florida because custodial interrogation without arrest is unauthorized by § 39.03(1), F.S., specifying occasions when a child “may be taken into custody.” The cited statute provides that “[a] child may be taken into custody . . . (b) [f]or a delinquent act, pursuant to the laws of arrest . . . .”, and in other circumstances not here pertinent.

We cannot agree that Florida’s statutory enumeration of occasions for taking juveniles into custody forbids custodial questioning of juveniles in all events. Chapter 39 does not purport to govern all relationships between police and juveniles. Its principal concern, as its title indicates, is orderly and sensitive “judicial treatment” of juveniles. That phrase implies a concern for adjudicatory standards and for appropriate ancillary processes. Section 39.01(30) defines “taken into custody,” the linchpin phrase of appellant’s argument, as

“the status of a temporary physical control of a child by a person authorized by this chapter, pending his release, detention, or placement.”

The statute refers to a child’s “release” as his release “to a parent, a responsible adult relative, or an adult approved by the court”; to a child’s “detention” as his delivery after parental notice “to the appropriate intake officer or . . . detention home or shelter”; and to his “placement” as judicial release to an adult not a relative. Sec. 39.03(2), (3), F.S. We think the statute was not intended to forbid a brief and otherwise lawful investigative custody which is simply ended, without ceremony, when its legitimate purpose has been served. In these events formal “release, detention, or placement” is rarely “pending” or necessarily desirable. To read chapter 39 as prohibiting all custodial interrogation of nonarrested juveniles would encourage marginally valid arrests for investigative purposes, deprive law enforcement authorities of a means to exonerate innocent suspects, and unduly deter apprehension of many felons. We decline to give chapter 39, F.S., an effect so obviously unintended by the legislature. Accord, T. B. v. State, 306 So.2d 183 (Fla.App.2d, 1975).

We note In re A.J.A., 248 So.2d 690 (Fla.App.3d, 1971), which read § 39.03, F.S.1971, as denouncing investigative delays after a child’s arrest and before his presentation to a magistrate. Section 39.03(3), F.S.1971, then provided:

“The person taking and retaining a child in custody shall notify the parents . and shall, without delay for the purpose of investigation or any other purpose, deliver the child, by the most direct practicable route, to the court of the county or district where the child is taken into custody . . ..” 248 So.2d at 691 (emphasis added).

The Florida Supreme Court approved the. District Court’s decision “[i]n view of the explicit mandatory language” of the statute. Roberts v. State, 285 So.2d 385, 386 (Fla.1973), quashing this Court’s decision in State v. Roberts, 274 So.2d 262 (Fla.App.1st, 1973). But the 1973 Legislature revised § 39.03(3), F.S., and substituted a milder requirement that the child “taken into custody” be delivered to the intake officer “without unreasonable delay.” Sec. 4, ch. 73-231, Fla.Laws; § 39.03(3)(a), F.S.1975. It is evident the legislature thus removed statutory impediments to juvenile custodial interrogation which does not offend the United States and Florida Constitutions.

III.

No Florida statute having intervened to prevent appellant’s headquarters interrogation, we must base our decision on whether appellant voluntarily submitted to the detention process.

We must first acknowledge that society often has strong interests in encouraging voluntary relinquishment of Fourth Amendment protections at police request. “It is an act of responsible citizenship for individuals to give whatever information they may have to aid in law enforcement” and, as Mr. Justice Frankfurter said, close interrogation of criminal suspects “is often indispensable to crime detection” and a matter of “compelling necessity.” So, while one in custody may not be induced without warning to give incriminating answers, the Fourth Amendment permits police to propound questions to closely held suspects not only because the voluntary answers of the guilty may incriminate but also because voluntary answers by the innocent may exculpate: “The questions which these suspected witnesses are asked may serve to clear them. They may serve, directly or indirectly, to lead the police to other suspects than the persons questioned.”

Because of these considerations, the Fourth Amendment does not prevent voluntary submission to a search and does not require that a person be informed explicitly, in the manner prerequisite to waiver of Fifth Amendment rights, that he need not consent to a search. Schneckloth v. Bustamonte, 412 U.S. 218, 243, 93 S.Ct. 2041, 2056, 36 L.Ed.2d 854, 872 (1973); United States v. Watson, 423 U.S. 411, 424, 96 S.Ct. 820, 828, 46 L.Ed.2d 598, 609 (1976). In the same way, we think, the Fourth Amendment permits voluntary but uncau-tioned submissions to “seizures” of the order we consider here. An officer’s spontaneous warning that the suspect need not go to headquarters for interrogation may conclusively demonstrate that the subsequent submission was voluntary, Clark v. State, 322 So.2d 635 (Fla.App.3d, 1975), but such a warning is not indispensable. The Supreme Court held in Watson that “the absence of proof that Watson knew he could withhold his consent, though it may be a factor in the overall judgment, is not to be given controlling significance.” 423 U.S. at 424, 96 S.Ct. at 828, 46 L.Ed.2d at 609.

Reviewing all aspects of deputy Bailey’s diversion, detention and custodial interrogation of R. L. J., we must conclude that the boy's submission to it was the product of an overborne will and not the result of a “free and unconstrained choice.” It is not of controlling significance here that R. L. J. “figured that him a law officer, you had to ... go with him,” and that Bailey said nothing to the contrary. Yet that is a factor in the judgment, made weighty here because appellant was a suspect 14 years old and, for all that appears, of no unusual maturity. Contrast Watson, 423 U.S. at 424, 96 S.Ct. at 828, 46 L.Ed.2d at 609. The decisive fact is that R. L. J. asked deputy Bailey the reason for the requested headquarters interrogation, and the deputy declined to say until they were at headquarters. He thereby overbore the youth’s will, and postponed to a more advantageous moment R. L. J.’s decision on whether to acquiesce in the investigation. We hold that the State cannot constitutionally invite such a suspect to relinquish Fourth Amendment privacies, withhold the information or explanation the suspect thinks necessary to his decision and then characterize as voluntary the resulting submission to authority.

IV.

There is no indication here that R. L. J.’s confession was not “induced by the continuing effects of unconstitutional custody.” Brown, 422 U.S. at 597, 95 S.Ct. at 2258, 45 L.Ed.2d at 423. By Brown criteria, the “temporal proximity” of seizure and confession was immediate, the purpose of the seizure was fulfilled as Bailey intended, and no ameliorating circumstances isolated the detention from the confession, as did Wong Sun’s arraignment and release from, custody. Wong Sun, 371 U.S. at 491, 83 S.Ct. at 419, 9 L.Ed.2d at 457. As in Brown, the unlawful detention here both in design and in execution, was investigatory. The confession was a direct and purposeful consequence of the detention. As in the case of James Wah Troy in Wong Sun and that of Brown himself, “there was no intervening event of significance whatsoever.” Brown, 422 U.S. at 604, 95 S.Ct. at 2262, 46 L.Ed.2d at 428. The confession was the effect of unconstitutional custody.

REVERSED.

MILLS, J., concurs.

BOYER, C. J., dissents.

BOYER, Chief Judge

(dissenting).

After conversations with appellant’s father, he was invited to the sheriff’s office by the investigating officer. He asked “why” but then agreed to go. In my view, appellant was never “in custody”. I therefore disagree that “appellant was in custody” and that his confession was “induced by the continuing effects of unconstitutional custody”. I would affirm.

      . Section 39.14(4), F.S., requires for the protection of juvenile offenders that our decision and ’ other records “refer to the child only by initials and court case number.”

      . 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      . The conviction was unsupported by an explicit trial court finding that appellant’s confession was voluntary. Our disposition of the case makes unnecessary the usual remand for a finding on that issue. Husk v. State, 305 So.2d 19 (Fla.App. 1st, 1974).

      . “The Miranda warnings are an important factor ... in determining whether the confession is obtained by exploitation of an illegal arrest. But they are not the only factor to be considered. The temporal proximity of the arrest and the confession, the presence of intervening circumstances, . . and, particularly, the purpose and flagrancy of the official misconduct are all relevant.” 422 U.S. at 603-04, 95 S.Ct. at 2261-62, 45 L.Ed.2d at 427 (footnotes omitted).

      .“When used in this sense, an arrest involves the following elements: (1) A purpose or intention to effect an arrest under a real or pretended authority; (2) An actual or constructive seizure or detention of the person to be arrested by a person having present power to control the person arrested; (3) A communication by the arresting officer to the person whose arrest is sought, of an intention or purpose then and there to effect an arrest; and (4) An understanding by the person whose arrest is sought that it is the intention of the arresting officer then and there to arrest and detain him. Cornelius, Search and Seizure, 2nd ed., Sec. 47; 6 C.J.S., Arrest, § 1.”

      . “It is quite plain that the Fourth Amendment governs ‘seizures’ of the person which do not eventuate in . . . ‘arrest’ in traditional terminology.”

      . Taylor v. Arizona, 471 F.2d 848, 851 (9th Cir. 1972), cert. den. 409 U.S. 1130, 93 S.Ct. 948, 35 L.Ed.2d 262 (1973). See also Henry v. United States, 361 U.S. 98, 103, 80 S.Ct. 168, 171, 4 L.Ed.2d 134, 139 (1959); Davis v. Mississippi, 394 U.S. 721, 726-27, 89 S.Ct. 1394, 1397, 22 L.Ed.2d 676, 681 (1969).

      . Contrast Orozco v. Texas, 394 U.S. 324, 89 S.Ct. 1095, 22 L.Ed.2d 311 (1969), in which Mr. Justice White criticized the majority’s finding that Orozco was “in custody” in his own bedroom: “It is difficult to imagine the police duplicating in a person’s home or on the street those conditions and practices which the Court found prevalent in the station house and which were thought so threatening to the right to silence.” 394 U.S. at 329-30, 89 S.Ct. at 1098, 22 L.Ed.2d at 316.

      . See Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972). The Court in Miranda took care not to affect by its decision “[g]eneral on-the-scene questioning as to facts surrounding a crime or other general questioning of citizens in the fact-finding process . . . .” “It is an act of responsible citizenship”, the Court stated, “for individuals to give whatever information they may have to aid in law enforcement.” 384 U.S. at 477-78, 86 S.Ct. at 1629-30, 16 L.Ed.2d at 725-26. See also LaFave, Arrest — The Decision to Take a Suspect into Custody 344-47 (1965).

      .“Where a police officer interrogates a citizen and restricts his liberty for the moment, if the individual is aware that he is free to leave, there is no arrest effectuated. ... In applying the ‘free to go’ rule it is quite possible that an arresting officer may overtly conduct himself in an aggressive manner with all the indications of detaining a suspect, but may indulge in expressions to the contrary. Where a police officer has testified . . . that he had no intention of arresting the accused, his actions may sufficiently indicate otherwise.” 1 Varón, Searches, Seizures and Immunities 113 (2d ed. 1974) (footnotes omitted).

      . “If . . . the police are able to get no answers from suspects, innocent or guilty, without arresting them, then a great many more innocent men will be making unnecessary trips to the station house. Ultimately it may be necessary to arrest a man, bring him to the police station and provide a lawyer, just to discover his name. Even if the man is innocent the process will be an unpleasant one.” Mr. Justice White dissenting in Orozco, 394 U.S. at 331, 89 S.Ct. at 1099, 22 L.Ed.2d at 317.

      . In 1975 persons under 18 were charged with 39.6 percent of Florida burglaries, 34.8 percent of larcenies and 29.6 percent of motor vehicle thefts. State of Florida Department of Criminal Law Enforcement, 1975 Annual Report at 35 (1976).

      . “The legislative enactment embodied in the cited section clearly expresses a policy of the State of Florida. It is a legislative directive to the courts and other law enforcement agencies that juveniles shall be treated differently from other suspected criminals in that they shall not be taken to a police station or jail for interrogation. The purpose of this directive is that a juvenile, presumptively inexperienced in the ways of crime, should not be subjected to the intimidating influences of an adult police station or jail. Even if this directive is based upon an inaccurate premise in some instances, it is nevertheless within the province of the legislature.” 248 So.2d at 692.

      . Miranda, 384 U.S. at 477-78, 86 S.Ct. at 1629-30, 16 L.Ed.2d at 725-26.

      . Culombe v. Connecticut, 367 U.S. 568, 571, 81 S.Ct. 1860, 1862, 6 L.Ed.2d 1037, 1040 (1961). The interrogation in Culombe began in a way somewhat similar to that in this case. Officers called on the suspects at their homes and advised each that “Lieutenant Rome wanted to talk with him at State Police Headquarters. They said that this was not an arrest.” 367 U.S. at 607, 81 S.Ct. at 1882, 6 L.Ed.2d at 1060. The wearying interrogation that followed was held to have extorted involuntary admissions of guilt in violation of due process.

      . Culombe, 367 U.S. at 571, 81 S.Ct. at 1862, 6 L.Ed.2d at 1040.

      . “|T]he community has a real interest in encouraging consent, for the resulting search may yield necessary evidence for the solution and prosecution of crime, evidence that may insure that a wholly innocent person is not wrongly charged with a criminal offense.”

      . Schneckloth, 412 U.S. at 225, 93 S.Ct. at 2047, 36 L.Ed.2d at 862; Watson, 423 U.S. at 424, 96 S.Ct. at 828, 46 L.Ed.2d at 609.

      . Chief Justice Burger, then Circuit Judge in the District of Columbia Circuit, wrote in Hicks v. United States, 127 U.S.App.D.C. 209, 382 F.2d 158, 161 (1967), that “an assumption that one is required to cooperate with the police can hardly be equated with an arrest. ...” The court there held that the station interrogation was not custodial.

      . Judge Burger’s opinion for the court in Hicks distinguished that court’s decision in Seals v. United States, 117 U.S.App.D.C. 79, 325 F.2d 1006 (1963), cert. den. 376 U.S. 964, 84 S.Ct. 1123, 11 L.Ed.2d 982 (1964), finding an unlawful arrest, because Seals was “an acknowledged suspect” and a “high school student.” 382 F.2d at 162. Earlier, the Supreme Court could not conceive “that a lad of tender years is a match for the police in such a contest.” Haley v. Ohio, 332 U.S. 596, 599-600, 68 S.Ct. 302, 304, 92 L.Ed. 224, 228 (1947).

      . An “invitation” to come to the station may mean, in certain circumstances, an order to come. United States v. Guana-Sanchez, 484 F.2d 590, 591 (7th Cir. 1973), cert. dism. 420 U.S. 513, 95 S.Ct. 1344, 43 L.Ed.2d 361 (1975).

      . 422 U.S. at 601-05, 95 S.Ct. at 2261-62, 45 L.Ed.2d at 427.


text:
    CITY OF OCALA, a Municipal Corporation of the State of Florida, et al., Appellants, v. Reubin O’D. ASKEW, Governor of the State of Florida, et al., Appellees.
    No. Z-401.
    District Court of Appeal of Florida, First District.
    Aug. 11, 1976.
    Seymour H. Rowland, Jr., and John McKeever of Pattillo, MacKay & McKeever, Ocala, for appellants.
    G. MacKenzie Rast, Tavares, Robert L. Shevin, Atty. Gen., William C. Sherrill, Jr., and Mary Jo Carpenter, Asst. Attys. Gen., for appellees.
   PER CURIAM.

The appellant mayor and members of the City Council of Ocala, together with the members of the School Board of Marion County, filed their amended complaint seeking a declaratory judgment as to the applicability of the “Sunshine Law” to these officials when engaged in private consultations with their attorneys in connection with impending and pending litigation. Material allegations set forth in the subject amended complaint are:

“(e) That following said closed meeting a complaint was filed by a reporter excluded from the meeting in the office of the defendant State Attorney charging said plaintiffs [appellants] with a violation of Section 286.011, Florida Statutes.
“(f) That the defendant OLDHAM [State Attorney] conducted an investigation of the complaint which investigation resulted in a decision by said Defendant OLD-HAM not to initiate criminal prosecution of the alleged offending plaintiffs; but that the said defendant OLDHAM in reaching his decision not to initiate prosecution did, nevertheless, find and declare that the exception to the Sunshine Law enunciated in the TIMES AND BAS-SETT cases [222 So.2d 470 and 262 So.2d 425] and relied upon by the plaintiffs had been eliminated by a later opinion of the defendant SHEVIN dated March 13, 1973, identified as opinion number 073-56, and advised these plaintiffs that no such exception to the application of Section 286.011, Florida Statutes, would be recognized by the defendant OLDHAM unless he were legislatively or judicially directed to the contrary. . . .”

The trial court, in granting appellees’ motion to dismiss, held that the amended complaint failed to state a cause of action; hence this appeal.

An examination of the subject amended complaint discloses that the essential elements to be considered by the court in determining whether to entertain an action for declaratory relief were alleged. As stated in Sheldon v. Powell, the purpose of the declaratory act is:

“. . .to ‘serve as an instrument of preventive justice,’ to render ‘practical help’ in determining issues, and to adjudicate the rights or status of parties, without the peril of committing a crime or resorting to violence or breach to put the legal machinery in motion.”

Obviously, appellant found themselves between “a rock and a hard place”. The legal machinery should be shifted out of neutral. The judgment appealed is reversed with directions to reinstate the amended complaint.

Reversed and remanded for further proceedings.

RAWLS, Acting C. J., SMITH, J., and HARDING, MAJOR B., Associate Judge, concur.

      . Section 286.011, Florida Statutes.

      . May v. Hoüey, 59 So.2d 636 (Fla.1952).

      . Sheldon v. Powell, 99 Fla. 782, 128 So. 258 (1930).


author: RAWLS, Acting Chief Judge.

text:
    Nessar Chalston BATTLE, Appellant, v. Michael Douglas COLEMAN and State Farm Mutual Automobile Insurance Company, a corporation, Appellees.
    No. AA-143.
    District Court of Appeal of Florida, First District.
    Aug. 11, 1976.

      David M. Wiesenfeld, Dawson, Galant, Maddox, Sulik & Nichols, Jacksonville, for appellant.
    Richard P. Warfield, Levin, Warfield, Graff, Mabie, Rosenbloum & Magie, Pensacola, and Anne C. Booth, Hall & Booth, Tallahassee, for appellees.
   RAWLS, Acting Chief Judge.

Appellant-plaintiff Battle filed his complaint against appellee Coleman and appel-lee State Farm Mutual Insurance Company alleging that Coleman negligently injured plaintiff and that Coleman was insured by a State Farm liability insurance policy. State Farm sought declaratory relief on the issue of insurance coverage. The trial judge granted State Farm’s motion for summary judgment holding that State Farm was not liable; hence this appeal.

The sole issue is whether State Farm’s liability insurance policy issued to Coleman on a 1965 Chevrolet also insured Coleman while he was driving a 1964 Ford van which was involved in the instant accident.

Although State Farm relies upon two exclusionary provisions of its policy in sustaining the summary judgment in its favor, we hold that determinative of this appeal is the “used in a business or occupation of the insured” exclusionary provision of the policy, and thus pretermit any discussion as to the other exclusionary provision. The following facts were not contradicted: Coleman was a member of a band known as the “Generation Gap” and had been playing with this band since its organization some seven years ago. The members of the band were equal owners of the van involved in the accident; it having been paid for out of band earnings as was gas and maintenance. Application for title to the van was submitted in the name of a friend of the band leader, because he was twenty-one years old and none of the members were twenty-one years of age when the van was purchased. The van was painted with the band slogan and was used in connection with the band business to carry instruments, sound equipment, and some of the band members to various business engagements. Coleman and other members of the band regularly took turns driving the van. At the time of the accident, the van was occupied by three band members (including Coleman, the alleged driver), their musical instruments and sound equipment, and was being driven to Lake City where the band had an engagement to play that evening. The business or occupation of Coleman was that of playing as a member of the “Generation Gap” band. He was engaged in that business or occupation when the accident occurred. It would be grossly unreasonable to think that either the insured or the insurer, upon the issuance of the liability insurance policy covering Coleman’s private automobile, contemplated that such coverage extended to the vehicle equitably owned and operated by Coleman and his fellow band members in pursuit of their business. Voelker v. Travelers Indemnity Co., 260 F.2d 275 (7th Cir. 1958); Annot., 85 A.L.R.2d 502 (1962).

AFFIRMED.

SMITH, J., and RUDD, JOHN A., Associate Judge, concur.

      . Subsection (d)(3) of Section V, Use of Other Automobiles, states:
      “(d) This insuring agreement does not apply:

      (3) . . . to any automobile while used in a business or occupation of such named insured or spouse except a private passenger automobile operated or occupied by such named insured, spouse, private chauffeur or domestic servant;”

      . Subsection (d)(1) of Section V, Use of Other Automobiles, provides:
      “(d) This insuring agreement does not apply:
      (1) to any automobile owned by or furnished for regular use to either the named insured or a member of the same household other than a private chauffeur or domestic servant of such named insured or spouse;”
      State Farm contends that Coleman is an owner in that the van was • purchased with money •earned by the band and was owned equally by the band members, and that the van was regularly available to Coleman to be driven on band jobs.


author: GRIMES, Judge.

text:
    Bobby D. FELTNER, Appellant, v. HARTFORD ACCIDENT AND INDEMNITY COMPANY, Appellee.
    No. 75-1657.
    District Court of Appeal of Florida, Second District.
    Aug. 11, 1976.
    John B. Cechman, Goldberg, Rubinstein & Buckley, P. A., Fort Myers, for appellant.
    Kempton P. Logan, Henderson, Franklin, Starnes & Holt, Fort Myers, for appellee.
   GRIMES, Judge.

This is an appeal from a summary judgment denying a claim under the Personal Injury Protection provisions of a policy issued by Hartford to Bobby D. Feltner.

Feltner and Ernie Pendarvis had been out playing pool. They returned to the Pendarvis home. Apparently outside the hearing of her husband, Pendarvis’ wife persuaded Feltner to take their daughter to see the daughter’s boyfriend who lived several miles away. Pursuant to Mrs. Pendar-vis’ request, Feltner carried the girl in the insured automobile to her boyfriend’s house. Since her boyfriend was not home, he brought her back to the Pendarvis residence. Upon their return, Feltner stopped his car to permit the girl to get out on the passenger side. At this point, the driver’s door was opened by Pendarvis who was holding a piece of pipe in his hand. Pendar-vis hit Feltner in the face with the pipe breaking his nose and cheekbones.

The record is not clear why Pendarvis struck Feltner. Feltner argues that he is entitled to the inference that it was because Pendarvis thought that Feltner was seducing his daughter. Giving Feltner the benefit of this and all other reasonable inferences, we still cannot see how the injury was caused by an accident “arising out of the ownership, maintenance or use” of the motor vehicle as required by the policy.

Construing similar language in Watson v. Watson, Fla.App.2d, 1976, 326 So.2d 48, our court held there was no liability coverage when a man was accidently killed by a pistol when he was removing it from his father’s automobile following an accident so that the automobile could be taken to the garage for repairs. Just as in Watson, Feltner’s car was merely the physical situs of the accident.

We cannot accept the contention that the use of the automobile was an integral part of the events surrounding Feltner’s injuries because he had been using it for the purpose of transporting Pendarvis’ daughter. The use of the automobile was only incidental to the Pendarvis assault. Such imagined provocation as Pendarvis may have had related to Feltner’s association with his daughter. There was an insufficient causal connection between the use of the automobile and the attack on Feltner.

AFFIRMED.

BOARDMAN, Acting C. J., and SCHEB, J., concur.


text:
    Michael LORENTZ, Appellant, v. Sarah MIDDLETON and Volkswagen Ins. Co., Appellees.
    No. CC-275.
    District Court of Appeal of Florida, First District.
    Aug. 17, 1976.
    David R. Lewis, of Blalock, Holbrook, Lewis, Paul & Isaac, P.A., Jacksonville, for appellant.
    Robert C. Gobelman and Jack W. Shaw, Jr., of Mathews, Osborne, Ehrlich, McNatt, Gobelman & Cobb, Jacksonville, for appel-lees.
   PER CURIAM.

No error having been shown in the trial court’s partial summary judgment on liability, this interlocutory appeal is

DISMISSED. Rule 4.2 c, F.A.R.

RAWLS, Acting C. J., and MILLS and SMITH, JJ., concur.


text:
    Karl H. COX, Petitioner, v. The STATE of Florida, Respondent.
    No. 75-1098.
    District Court of Appeal of Florida, Third District.
    Aug. 11, 1976.
    Richard E. Gerstein, State’s Atty., and John H. Lipinski, Asst. State’s Atty., for petitioner.
    Phillip A. Hubbart, Public Defender, and Bennett H. Brummer, Asst. Public Defender, for respondent.
    Before BARKDULL, C. J., and HAVER-FIELD and NATHAN, JJ.
   ORDER ON MANDATE

PER CURIAM.

WHEREAS, the judgment of this court was entered on October 10, 1975 (321 So.2d 477) denying a petition for writ of certiorari to the Circuit Court for Dade County, Florida; and

WHEREAS, on review of this court’s judgment, by certiorari, the Supreme Court of Florida by its opinion and judgment filed June 4, 1976 (334 So.2d 568) and mandate now lodged in this court remand the cause with directions to reverse the trial court;

NOW, THEREFORE, It is Ordered that the judgment of this court heretofore filed in this cause on October 10,1975 is vacated, the opinion and judgment of the Supreme Court of Florida is herewith made the opinion and judgment of this court and the cause is remanded for further proceedings consistent with the opinion and judgment of the Supreme Court of Florida. Costs allowed shall be taxed in the trial court (Rule 3.16b, F.A.R.).


text:
    Peter RAMOS, Appellant, v. The STATE of Florida, Appellee.
    No. 76-139.
    District Court of Appeal of Florida, Third District.
    June 22, 1976.
    Peter Ramos, in pro. per.
    Robert L. Shevin, Atty. Gen., for appel-lee.
    Before HENDRY, HAVERFIELD and NATHAN, JJ.
   PER CURIAM.

This court, proceeding in the manner outlined and recommended by the Supreme Court of the United States in Anders v. California, 386 U.S. 738, 744, 87 S.Ct. 1396, 18 L.Ed.2d 493, having deferred ruling on a motion of the public defender to withdraw as counsel for the indigent defendant-appellant, and having furnished appellant with a copy of the public defender’s memorandum brief, and having allowed the appellant a reasonable specified time within which to raise any points that he chose in support of this appeal, and the appellant having failed to respond thereto, on consideration thereof upon full examination of the proceedings we conclude that the appeal is wholly frivolous. Whereupon, the public defender’s said motion to withdraw is granted, and the order or judgment appealed is hereby affirmed.


text:
    Freeman NELSON, Appellant, v. The STATE of Florida, Appellee.
    No. 76-375.
    District Court of Appeal of Florida, Third District.
    June 22, 1976.
    Freeman Nelson, in pro. per.
    Robert L. Shevin, Atty. Gen., for appel-lee.
    Before BARKDULL, C. J., and PEARSON and HENDRY, JJ.
   PER CURIAM.

This court, proceeding in the manner outlined and recommended by the Supreme Court of the United States in Anders v. California, 386 U.S. 738, 744, 87 S.Ct. 1396, 18 L.Ed.2d 493, having deferred ruling on a motion of the public defender to withdraw as counsel for the indigent defendant-appellant, and having furnished appellant with a copy of the public defender’s memorandum brief, and having allowed the appellant a reasonable specified time within which to raise any points that he chose in support of his appeal, and the appellant having failed to respond thereto, on consideration thereof upon full examination of the proceedings, we conclude that the appeal is wholly frivolous. Whereupon, the public defender’s said motion to withdraw is granted, and the order or judgment appealed is hereby affirmed.


author: BOYER, Chief Judge.

text:
    Kenneth B. SMITH et al., Appellants, v. H. A. MOORE and M. S. Linton, as Sheriff of Taylor County, Florida, Appellees.
    No. AA-38.
    District Court of Appeal of Florida, First District.
    July 27, 1976.
    Rehearing Denied, Sept. 1, 1976.
    Frederick B. Karl and Donald W. Weid-ner, Tallahassee, for appellants.

      Julius F. Parker, Jr., Stanley Bruce Powell, Tallahassee, for appellees.
   BOYER, Chief Judge.

Appellants here seek review of a trial court order striking portions of their amended complaint and dismissing it with prejudice.

In 1974, appellee Moore obtained in the Circuit Court of Leon County a final judgment in the sum of $15,484.30 against two of the appellants in this case, Kenneth and Elizabeth Smith, doing business as The Taco Times. The Smiths appealed, but since they filed no supersedeas bond Moore’s trial counsel procured the issuance of a writ of execution. That attorney thereafter prepared and delivered to the sheriff of Taylor County a form entitled “Supplemental Instructions for Levy” to which was attached a schedule of property, real and personal. The language of the form informed the sheriff of the issuance of the writ of execution and instructed levy upon the described property. The next day the attorney directed a letter to Sheriff Linton in which it was stated that the letter was intended to be “ * * * a supplement to Schedule ‘A’ of my Supplemental Instructions for Levy * * * The letter further recited that the initial “ * * * Schedule should have included all furniture, equipment, office supplies and other contents of the Taco Times located at its office at * * * Perry, Florida.”

Sheriff’s deputies levied upon all of the property set forth in the “Supplemental Instructions for Levy” including that mentioned in the attorney’s letter. It is alleged that the property had an aggregate value of approximately $300,000. None of the property was removed from its site and was released upon the posting of a bond.

Appellants filed suit in Taylor County Circuit Court alleging, inter alia, that Sheriff Linton knew or reasonably should have known that the value of the property listed on the attorney’s instructions was substantially greater in value than the amount owed on account of the $15,484.30 judgment, being the basis of the writ of execution; and that The Taco Times’ property was not specifically described in the initial “Supplemental Instructions for Levy” and should not under law have been levied upon. Appellants Cooper and Kenneth Smith, Jr. joined in separate counts of the amended complaint alleging that they owned certain property which was wrongfully levied upon incident to the levy upon the property owned by appellants Kenneth and Elizabeth Smith. Sheriff Linton filed a motion to strike two paragraphs of the amended complaint and a motion to dismiss, both of which motions were granted and this appeal followed.

Although other assignments of error were filed, the only point briefed by appellants relates to the propriety of the dismissal of the amended complaint as to the claim sought to be asserted by Kenneth and Elizabeth Smith against M. S. Linton, as sheriff of Taylor County; therefore, that is the only issue preserved for our review, all other issues being deemed abandoned.

F.S. 30.30 provides in material part as follows:

“(1) Whenever any writ, issuing out of any court of this state, shall be delivered to a sheriff, commanding him to levy upon property specifically described therein, it shall be his duty to levy upon such property; and, if no property is specifically described, then he shall levy upon any property assessed against the defendants on the current tax rolls of the county or registered in his name under any law of the United States or of the state.
“(2) No sheriff shall be liable in damages to anyone whomsoever for making a wrongful levy whenever the same has been made as required under subsection (1).”

The execution form adopted by the Supreme Court of Florida (Form 1.914, RCP) contains no provision nor space for specifically describing the property to be levied upon. Indeed, we take judicial notice that few, if any, executions specifically describe property. We recognize that there are writs other than executions which may command a sheriff to levy upon specific property, but no such writ is here involved. It is clear therefore that the first clause of F.S. 30.30(1) is not here applicable. It is equally clear that instructions for levy from a judgment holder, or his agent or attorney, whether written or oral, on a form or by letter, do not become a part of the execution within the meaning of the statute.

Since the execution did not specifically describe property upon which the sheriff was commanded to levy, the second clause of F.S. 30.30(1) became applicable. That clause requires the sheriff to levy upon any property assessed against the defendant on the current tax rolls of the county or registered in his name. There is no allegation in appellants’ amended complaint that any of the property upon which the sheriff levied was not assessed against them on the tax rolls of the county nor registered in their name.

F.S. 30.30(2) insulates a sheriff from liability for making even a “wrongful levy” whenever the levy was made pursuant to F.S. 30.30(1). It necessarily follows that the learned trial judge was eminently correct in dismissing the amended complaint as against Sheriff Linton.

Appellants’ reliance upon Hart v. Maas Brothers, Inc., 5 Fla.Supp. 140, affirmed per curiam, Delcher v. Hart, Fla.Sup.Ct.1954, 70 So.2d 918, is misplaced. In that case, the complainant, judgment debtor, sought to have set aside a sheriff’s deed, which relief was granted on the ground that the court in which the judgment had been entered against the judgment debtor had no jurisdiction and therefore the judgment was void. Damages resulting from an excessive levy were not there involved.

In summary, we hold that instructions given to a sheriff requesting levy upon property pursuant to the command of a writ of execution does not become a part of the writ and that pursuant to F.S. 30.30, a sheriff has no liability in damages for making a wrongful levy whenever the levy has been made in accordance with subsection (1) of that statute.

AFFIRMED.

McCORD and MILLS, JJ., concur.


author: SHORES, Justice. MADDOX, Justice

text:
    Louise L. BETHUNE et al. v. CITY OF MOUNTAIN BROOK, a Municipal Corp.
    SC 1456.
    Supreme Court of Alabama.
    July 2, 1976.
    Rehearing Denied Aug. 20, 1976.
    Donald L. Collins and A. Eric Johnston, Birmingham, for appellants.
    J. M. Breekenridge, Michael C. Quillen and L. Vastine Stabler Jr., Birmingham, for appellee.
   SHORES, Justice.

The issues raised on this appeal are set out at length in Justice Maddox’ dissenting opinion.

We affirm the trial court in granting the City of Mountain Brook’s motion for a new trial. See Hubbard Bros. Const. Co., Inc. v. C. F. Halstead Contractor, Inc., 294 Ala. 688, 321 So.2d 169 (1975).

The trial judge was of the opinion that “. . . the overwhelming evidence is against the plaintiff on each of the issues . ” Therefore, to reverse ,the order granting the motion for a new trial, we must find that the great weight of the evidence “. . . plainly and palpably supports the verdict, which means that we will not reverse in such case unless the evidence presented at trial plainly and palpably shows that the trial court was in error.” Jones v. Strange, 289 Ala. 76, 79, 265 So.2d 860, 862 (1972).

The court noted in the prior appeal of this case, Bethune v. City of Mountain Brook, 293 Ala. 89, 300 So.2d 350 (1974), that there were many disputed facts surrounding the execution of the contract between the Board of Education and the plaintiffs and the role of the City of Mountain Brook in connection with this contract. We held summary judgment was inappropriate. In reviewing the evidence adduced after a.full trial of this cause, we are not led inescapably to the conclusion that the trial court was plainly and palpably wrong in granting the motion for a new trial.

Another reason given by the trial court for granting the motion for a new trial was the conduct of counsel for the plaintiffs in engaging in “grossly improper and highly prejudicial” final argument. The trial court cited specific instances of what it considered improper argument and found the effect of the statements to be ineradicable. We have held on numerous times that . . the action of the court in granting a motion for a new trial cannot be based upon argument of counsel, unless the remarks are grossly improper and highly prejudicial to the opposing party.” Louisville & Nashville R. Co. v. Sullivan Timber Co., 126 Ala. 95, 104, 27 So. 760, 763 (1899).. In this regard, much is left to the discretion of the trial judge. As this court said in Taylor v. Brownell-O’Hear Pontiac Co., 265 Ala. 468, 469, 91 So.2d 828, 829 (1957):

“The trial judge was present and was in a position to observe the manner of counsel and the countenance and expressions of the jury and the things complained of which transpired. In other words, the trial court, in acting upon the motion, was in possession of data and circumstances which are not and could not be presented by the record to this court. For this reason, we cannot disturb the conclusion reached unless we can say that it affirmatively appears from the great weight of the evidence and the surrounding facts and circumstances that this conduct did not influence the jury in the rendition of the verdict either as to result or amount . . .”

While we might be constrained to agree with the trial judge that the cumulative effect of the improper argument demands a new trial, we cannot apply, on review, the same test as did the trial court. Before it was data which we do not and cannot have. We must determine whether it affirmatively appears from the great weight of evidence and surrounding facts and circumstances that the improper argument did not influence the jury. The record is devoid of any such affirmative showing. Therefore, the judgment of the trial court in granting the City’s motion for a new trial is affirmed.

AFFIRMED.

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

MADDOX, FAULKNER and JONES, JJ., dissent.

MADDOX, Justice

(dissenting).

This case is here on appeal for the second time. In this Court’s prior decision, Bethune v. City of Mountain Brook, 293 Ala. 89, 300 So.2d 350 (1974), the questions raised were stated as follows:

“1. Can a municipality agree to permit a real estate developer to file a subdivision plat at a later time?
“2. Can a municipality enter into an oral agreement?
“3. Were there disputed material facts presented which would prevent the entry of a summary judgment?
“The Bethunes (appellants) owned property adjacent to property bought by the Board of Education of the City of Mountain Brook from Nelson Weaver Mortgage Co., Inc. for a school. The Bethunes and the Mountain Brook Board of Education entered into an agreement in which the Bethunes agreed to build two streets across their property to the school property.
“One of the conditions of the purchase agreement made by and between the Mountain Brook Board of Education and Nelson Weaver Mortgage Co., Inc. was ‘that Bethune Drive and Crosshill Road shall be extended and completed on or before December 31, 1965 . . . ’ across the property owned by the Be-thunes. The Bethunes entered into a written contract with the Board of Education wherein they agreed to ‘cause Bethune Drive and Crosshill Road to be extended and completed in strict compliance with the requirements of the City of Mountain Brook as public streets . . said Bethune Drive and Crosshill Road to be located as shown in that certain map designated as Preliminary Plan of West-bury Addition to Mountain Brook . a copy of which has heretofore been filed with the Planning Commission of the City of Mountain Brook . . . and said Bethune Drive and Crosshill Road, as shown on said map as aforesaid, shall be dedicated to public use upon final approval by the Planning Commission of the City of Mountain Brook.’
“The Bethunes built the streets. They were dedicated to the City. The Be-thunes claim that when the City accepted dedication of the streets, the City approved the plat and agreed to allow them to file the subdivision plat at a later date. The City refused to accept the plat when the Bethunes offered to file it in 1971. The Bethunes subsequently filed this lawsuit, claiming damages because of the alleged breach by the City of its agreement to allow the late filing. The City answered the suit and admitted that it accepted the streets on March 27, 1967. The City also admitted that it had denied, in December 1971, the property owners’ request to admit the subdivision plat to be recorded, however, the City denies that it made any agreement to allow the plat to be recorded at a later time.
“The City also says that if any agreement was made, it was void because: (1) it was not in writing as required by Title 37, § 467, Code of Alabama, 1940; (2) the approval of subdivision plats is a legislative function and any attempt by one council to bind the exercise of that function would be void and contrary to public policy.”

After remand of the original appeal, the case was tried before a jury, which returned a verdict in the sum of $400,000 in favor of the plaintiffs. The trial judge granted a motion for a judgment notwithstanding the verdict filed by the City and in the alternative, he ruled that the City was entitled to a new trial.

On the first appeal of this case, this Court, discussing some of the disputed facts, said:

“According to the pleadings and the affidavits, as we view them, the Bethunes claim they received approval of their plat (with a deferred filing date) in consideration of their dedication of the two streets to the City. There is some evidence that the City was vitally interested in getting the two streets opened up to Mountain Brook High School. The City does not necessarily deny this, but says that the Bethunes were merely complying with the contractual obligation made by and between them and the Board of Education. These are disputed facts. This dispute over the facts shows that this was an inappropriate case for summary judgment. Rule 56, Alabama Rules of Civil Procedure. Therefore, we think the trial court erred in granting the City’s motion for summary judgment.
“If the Bethunes can prove their claim that the City accepted the streets and impliedly agreed to give something in return, the Bethunes would be entitled to recover the reasonable value of the benefits which the City has accepted, used and retained.”
* * * * * *
“The City cannot escape payment to the Bethunes for what it received from them, that is, if the Bethunes can prove their claim of an implied contract. Since many of the facts are seriously disputed, however, this opinion should not be construed as holding that there was an implied contract or that this Court believes the facts are favorable to one side or the other.”

In granting Mountain Brook’s motion for a judgment notwithstanding the verdict, the trial court gave five reasons:

(1) The evidence was undisputed that the plaintiffs entered into a contract with the Board of Education of the City of Mountain Brook, and “it is now clear that there is no dispute that the pre-existing contract was executed, was supported by adequate consideration, and that the consideration given by the plaintiffs in support of that contract is the same as the consideration claimed by the plaintiffs to support this action.”

(2) That “the judgment (sic) is based only on evidence which tends to vary or add to the official minutes of the City Council.”

(3) That the “action allegedly taken by the City' is outside the power of the City Council.”

(4) That the alleged agreement was not the result of a corporate act.

(5) That the plaintiffs presented no evidence that the dedication of the streets resulted in a benefit to the city.

I will discuss each reason separately.

The first reason given by the trial judge in support of his action was that the plaintiffs were obligated to dedicate the streets under a pre-existing contract with the Mountain Brook Board of Education, the trial court finding that “after six days of trial, it is now clear that there is no dispute that the pre-existing contract was executed, was supported by adequate consideration, and that the consideration given by the plaintiffs in support of that contract is the same as the consideration claimed by the plaintiffs to support this action.” By making this finding, the trial court has invaded the province of the jury, in my opinion. As this Court indicated in its prior opinion, there were many disputed facts surrounding the execution of the contract between the Board of Education and the plaintiffs and the role of the City of Mountain Brook in connection with this contract; therefore, this Court concluded there that summary judgment was inappropriate. The jury found adversely to the contention of the City and the jury’s verdict cannot be disturbed on this ground because a motion for a judgment notwithstanding the verdict may be granted only when, without weighing the credibility of the evidence, there can be but one reasonable conclusion as to the proper judgment. In considering the motion, the Court must view the evidence in the light most favorable to the party who secured the jury verdict. Moore’s Federal Practice, 2d Ed., Vol. 5A, ¶ 50.07, pp. 2356-57. Using this yardstick, I believe that the trial court’s first ground for granting the judgment notwithstanding the verdict was completely without merit.

The second ground given by the trial judge was that the jury verdict was based only on evidence which tended to vary or add to the official minutes of the City Council.

Admittedly, it has been said that acceptance of a contract by a municipality cannot be shown except by minutes in writing, but a distinction is made between evidence to contradict facts stated on the record and evidence to show facts omitted to be stated on the record. In fact, this Court, in City of Guntersville v. Walls, 252 Ala. 66, 39 So.2d 567 (1949), stated:

“Whatever may be the rule elsewhere, this Court has held that if the records of the city council do not speak the truth, they should be made to do so, for the council has the right at a subsequent meeting, to amend them, and if the council should fail to do so on proper petition, mandamus will lie to require it. Mayor, etc., of City of Anniston v. Davis, 98 Ala. 629, 13 So. 331, 39 Am.St.Rep. 94; Penton v. Brown-Crummer Inv. Co., 222 Ala. 155, 131 So. 14; Harris v. Town of East Brewton, 238 Ala. 402, 191 So. 216; Harris v. Thompson, 29 Ala.App. 38, 191 So. 403; McQuillin Municipal Corporations (2d Ed.) sections 656, 657 and 658. And in Penton v. Brown-Crummer, supra, 222 Ala. 155, 131 So. 19 it was said: ‘Any errors in such records may be corrected at any subsequent session of the council. It does not lose control of its minutes by the lapse of any definite time, as with the courts.’ ”

The rights of creditors or of third parties cannot be prejudiced by the neglect of the council to keep proper minutes. Cf. Bridgford v. City of Tuscumbia, 16 F. 910, 913 (N.D.Ala.1881).

The question of the power of the City of Mountain Brook to impliedly agree to allow the plaintiffs to file the plat at a later date was decided on the first appeal. This Court remanded the case before for a determination of the question of whether there was an implied contract, and if so, the extent of the damages. Where the power to contract lies within the competence of the city, and there is an irregular exercise of that power, recovery in quantum meruit may be had although the express contract may be void. See State v. Fourth National Bank of Columbus, Ga., 270 Ala. 135, 117 So.2d 145 (1959). The power of the City of Mountain Brook to ultimately control subdivisions within its boundaries cannot be seriously questioned. This Court so held implicitly on the prior appeal.

In addition, the jury could have found from the evidence that the City wanted to have the streets opened up so that the streets could be used in connection with the new high school. As a matter of fact, the evidence shows that the City made the alleged implied agreement to allow the plaintiffs to file the plat later, only after plaintiff Bethune told the Council:

“Q. And when you went to the City Council meeting on March 27, 1970—
“A. 1967.
“Q. 1967. In 1967, when you went to that meeting, they were not inclined at first to accept the dedication of those roads without the lots being on the map. Is that correct?
“A. They didn’t agree with us on it at first.
“Q. They didn’t agree at first?
“A. Right.
“Q. And you told them sometime during that meeting that if they didn’t take those roads that you would close them down and they could fly the kids into the school by helicopter?
“A. I did, yes.
* * * * * *
“Q. They adopted it after you said that, isn’t that true?
“A. Yes. They accepted the roads without the lots being on it.”

The plaintiffs put on substantial evidence about what transpired at the crucial March 27,1967, Council meeting. The ex-mayor of the City of Mountain Brook was the only person who testified as a witness for the City about what transpired at this Council meeting. He did not deny that the Council agreed to let the plaintiffs file the subdivision plat at a later date. He said he could not remember all that transpired, but he did affirm that the matter of the late filing was discussed. The jury undoubtedly believed the plaintiffs’ version of what transpired at the Council meeting. Since the City of Mountain Brook had the power to make the agreement, it cannot defeat its obligation to carry out the agreement by failing to make its minutes “speak the truth,” in my opinion.

The third ground given by the trial judge was that the “action allegedly taken by the City is outside the power of the City Council.” This finding is directly contrary to the holding of this Court on the first appeal, and is completely without merit, in my opinion.

The fourth ground given by the trial judge was that the alleged agreement was not the result of a corporate act. As already pointed out, all the evidence is to the contrary. The ex-mayor’s testimony is the only evidence that an agreement was not made, and all he said was that he could not remember. The evidence was substantial that the City agreed, at least impliedly, to permit a late filing of the plat.

The last ground given by the judge for his granting the judgment notwithstanding the verdict was that the plaintiffs presented no evidence that the dedication of the streets resulted in a benefit to the City. The jury obviously did not view the case in this light. There was sufficient evidence to support the jury verdict. As already pointed out, the jury could have found that the City was desirous of having the streets opened up. When plaintiff Bethune threatened to close the streets, the City reacted immediately. Absent dedication, the City would have had to condemn. Therefore, there was sufficient evidence of a benefit flowing to the City.

I now turn to the question of the trial court’s treatment of the City’s motion for a new trial. The trial judge, acting pursuant to ARCP 50(c)(1) ruled that if the judgment notwithstanding the verdict was reversed or vacated, then, in his opinion, the City would be entitled to a new trial. As the comments to ARCP 50 point out, the rule promotes judicial economy:

“The procedure, in effect, requires the judge who has granted judgment n. o. v. to also render an advisory opinion on any alternative motion for a new trial so the appellate court might have the benefit of this view in the event they reverse him on his grant of a judgment n. o. v. Thus, the appellate court can have an answer to the question, ‘Now that you have found out you erred in giving the verdict-loser a judgment n. o. v., would you give him a new trial?’ Note that the new trial ruling if conditionally granted, is not binding on the appellate court.”

In this case, the trial judge specified five reasons why he would grant a new trial if the judgment notwithstanding the verdict were not affirmed. For a thorough discussion of this Court’s policy and scope of review of a judgment granting a new trial, see Hubbard Bros. Const. Co., Inc. v. C. F. Halstead Cont., Inc., 294 Ala. 688, 321 So.2d 169 (1975).

The judge’s first reason for granting a new trial is that “the overwhelming evidence is against the plaintiff on each of the issues discussed above . . As this Court held in Jones v. Strange, 289 Ala. 76, 265 So.2d 860 (1972), when the trial judge orders a new trial because the verdict is against the great weight of the evidence, we will not reverse his order unless the great weight of the evidence shows the trial judge was plainly and palpably wrong.

I have already discussed much of the evidence which was presented in behalf of the plaintiffs. The City called three witnesses. Of these, as I pointed out earlier, the ex-mayor of Mountain Brook is the only one who testified for the City about the crucial March 27, City Council meeting. He testified that he could not remember what was said regarding recording the lots at a later date. In brief, the City says:

“The City’s first witness was William Given, Jr., mayor of Mountain Brook in 1967 and a member of the City Council in 1971. As mayor, he was not a member of the City Council and was an ex-officio member of the Planning Commission. He did not recall making any statements to Mr. Bethune or his representatives at the City Council meeting of March 27, 1967 to the effect that the lots of First Sector, Second Addition could be recorded at a later time. He was not authorized as mayor to make commitments concerning approval of lots or plats. He stated that there must have been a discussion on March 27,1967 about putting Second Addition lots on record either that night, or at a later date. He wanted bis testimony to reflect that he did not remember whether he did or did not say anything at the City Council meeting about later approval of the lots.” [Emphasis added.]

The second witness to testify for the City was a civil engineer who testified as to various construction costs. The final witness for the City authenticated certain photographs which had been introduced as exhibits during the trial.

When I compare the testimony of the City’s witnesses with the testimony of those who took the stand in favor of the plaintiffs, I am led inescapably to the conclusion that the great weight of the evidence shows that the trial judge was plainly and palpably wrong. The only evidence to support the City’s version was that of witnesses who did not remember. I think the evidence was all on the side of Bethune that an agreement was made.

The majority states that the trial judge correctly granted a new trial because of prejudicial conduct of counsel during argument. I disagree. The trial judge described the acts he found objectionable as follows:

“The Court is firmly of the opinion that the conduct of counsel for the plaintiffs and final argument of the plaintiffs was grossly improper and highly prejudicial. In the first place, counsel for the plaintiffs claimed on more than one occasion before the jury that the Supreme Court of Alabama had ruled in favor of the plaintiffs on various details of the case. The Court requested the jury to disregard counsel’s final argument in that regard. On further reflections the Court is convinced that such statements were ineradicable and highly prejudicial. Additionally, the plaintiff made a ‘golden rule’ argument which is deemed improper in virtually every jurisdiction of the country. The plaintiff spoke to and addressed individual jurors. The plaintiffs’ counsel quoted Oliver Wendell Holmes and made an argument to the effect that the plaintiffs were willing to settle the case with the implication being that the defendant was not. Furthermore, the plaintiffs made a classic punitive damage argument which is inappropriate and highly prejudicial. My view in this regard is fortified by the enormity of the verdict in favor of the plaintiffs. The Court is convinced that the cumulative effect of the improper argument and the sidebar comments which are enumerated in the motion is that the defendants were denied a fair trial by the prejudicial conduct of counsel for the plaintiffs. Accordingly, the Court rules that the defendant is entitled to a new trial.”

I have examined particularly the reference to the conduct of plaintiffs’ counsel during closing arguments. Counsel for the City objected on only four occasions to argument that was being made by plaintiffs’ counsel and in each instance, the trial court sustained objections to the argument. At one point, the court admonished plaintiffs’ counsel as follows:

“THE COURT: Mr. Collins, I believe you have just about treaded on my patience and invaded the province of the Jury and acted in an unconscionable manner, and I caution you seriously do not make any further statements. And I support Mr. Stabler’s objection. And ladies and gentlemen, I caution you and I ask you, if you will, give me an indication you will not take into consideration the statement just made to you by counsel. If you can do that, will you just please let me know. I want you to be reliable, keep an open mind. Can we all do that? We can. All right. Let’s go on.” [Emphasis added.]

I believe the record shows affirmatively that the jury indicated to the judge that they could decide the case fairly. Consequently, I believe the record shows the trial judge was plainly wrong in granting a new trial on this ground. Furthermore, the record shows the trial was adversary, to say the least.

During closing argument, counsel for the City, for instance, apparently in an attempt to answer some of the argument by plaintiffs’ counsel, made the following statement concerning Mr. Bethune:

“Well, he may be for rugged individualism on Flag Day, but today, he is here for money. He is here to profiteer. He is here asking you to give him something that no other contractor could get.
“MR. COLLINS: I object to that, Your Honor. It is prejudicial.
“THE COURT: Overrule.
“MR. COLLINS: ‘Profiteering.’
“MR. STABLER: I hope it is prejudicial.
“THE COURT: Overrule.
“MR. STABLER: Not an improper prejudice, Your Honor, you understand.” [Emphasis added.]

I think that the trial court was clearly wrong in ordering a new trial based upon conduct of counsel during oral argument. The jurors told the trial judge that they could keep an open mind. I would believe them.

The majority seem to think that there were disputed facts surrounding the contract between the plaintiffs and the Mountain Brook Board of Education wherein it was provided that the plaintiffs would “cause Bethune Drive and Crosshill Road to be extended and completed in strict compliance with the requirements of the City of Mountain Brook.” Even assuming the Be-thunes agreed with the School Board to get these two streets extended and completed, the contract specifically provided that it would be in strict compliance with the requirements of the City of Mountain Brook. As I view the matter, any contract with the Board of Education was contingent upon what the City of Mountain Brook might require. In other words, if the Bethunes could have gotten the City of Mountain Book only to require dirt streets, then I believe that the Bethunes would have fulfilled any obligation they might have had under any contract with the School Board. The Bethunes had a right to expect that persons or corporations with whom they dealt in carrying out their obligation would perform their agreements, and I think that includes the one to allow a late filing of the plat. In other words, could the City refuse to carry out an agreement it made to allow the late filing of the plat on the ground that the plaintiffs were obligated to get the streets dedicated? I think not. Bethune performed his agreement by getting the streets dedicated. The streets were accepted by the City. Therefore, they had a reasonable expectancy to have the City hon- or its agreement to allow the late filing of the plat.

I know the plaintiffs had a heavy burden to show that the trial judge was plainly and palpably wrong when he determined that the plaintiffs had failed to prove an implied agreement. I believe that the evidence in this record shows that he was wrong. Unfortunately, the majority has not pointed out any evidence which would show that the City did not agree to allow a late filing of the plat.

The trial judge was of the opinion that the verdict was excessive. In this, I agree with him, but I do not believe that the defendant City is entitled to a new trial on any fact question determined by the jury except that of the amount of damages. In this connection, I have examined the record and based upon the evidence in the record, •it appears that the implied contract was breached on December 13, 1971, when the City refused to allow the plaintiffs to place the plat or map on record.

What were the damages which flowed from the breach of the agreement? The City admits, in brief, that the testimony was uncontradicted that the lots could have been improved to meet the objections raised by the Mountain Brook Planning Commission for a cost of approximately $36,000. Even the City agrees that the plaintiffs would have had to expend approximately $36,000 to get an approval. Therefore, this sum is an obvious damage. In other words, if the plaintiffs had an agreement that they could file a plat at a later date, and the City made additional requirements, then the additional costs would be damages.

In view of this, I believe the trial court was correct that the verdict was excessive. However, I do not believe that a new trial should be had if the plaintiffs would agree to a remittitur. This Court has said that remittiturs are favored in proper cases for the promotion of justice and the ending of litigation. I believe this is a proper case for application of that principle. Even though the trial court did not condition the granting of a new trial to the defendant upon the filing of a remittitur by the plaintiffs, I believe that justice would be served if this Court took that action here.

In other words, I would conditionally affirm the trial court’s granting of the defendant’s motion for a new trial on the ground that the verdict was excessive. If the plaintiffs would file with the trial court' a remittitur of all damages except the $36,-000, plus interest, I would reverse the judgment of the trial court granting the City’s motion for a new trial.

FAULKNER and JONES, JJ., concur.


author: MADDOX, Justice.

text:
    George C. WALLACE et al. v. John BAKER et al.
    SC 1545.
    Supreme Court of Alabama.
    July 16, 1976.
    Rehearing Denied Aug. 27, 1976.
    William J. Baxley, Atty. Gen., George L. Beck, Deputy Atty. Gen., and Joel E. Dillard, Asst. Atty. Gen., for appellants.
    Truman Hobbs and Robert D. Segall, Montgomery, for appellees.
   MADDOX, Justice.

Can the Governor, by executive order, appropriate public funds for education when the Legislature adjourns without passing an appropriation bill? We hold that he cannot, and affirm the trial court.

Section 43 of our State Constitution prohibits the Executive branch from exercising either legislative or judicial powers. Section 72 of our Constitution specifically prohibits the payment out of the treasury of money “except upon appropriations made by law.” Amendment 111, which states that it is the policy of the State “to foster and promote the education of its citizens,” does not grant additional powers to the Executive. The power to appropriate is still legislative.

Admittedly, the Legislature’s inaction created an emergency, but under the facts of this case, the proper constitutional course for the Governor was for him to call a special session, which he did. The Legislature passed an appropriation bill for education, thereby alleviating the problem.

We affirm the judgment of the trial court enjoining the enforcement of the executive order.

AFFIRMED.

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


author: SHORES, Justice.

text:
    Louise Cobb Mixon BYARS v. Katrina Mixon WILDER et al.
    SC 1572.
    Supreme Court of Alabama.
    July 16, 1976.
    Rehearing Denied Aug. 27, 1976.
    W. H. Albritton, Andalusia, J. Robert Ramsey, Dothan, for appellant.
    Lee & Mclnish, Dothan, for Katrina Mix-on Wilder.
   SHORES, Justice.

This is the third appeal involving the estate of Travis Mixon, Jr. Byars v. Mixon, 292 Ala. 657, 299 So.2d 259; and 292 Ala. 661, 299 So.2d 262 (1974).

The facts and family history involved here are set out in the opinion written for the court by Justice Merrill on the second appeal. In that case, the court held that it was impracticable to assign dower by metes and bounds in each separate tract of the many tracts of land owned by Mr. Mixon at the time of his death and said:

“ . . . We do think it is practicable to assign dower in whole tracts if the widow’s share is allotted so as to provide her with a life interest in one-third of the acreage and value of the land. That is our understanding of the trial court’s order. This would unencumber two-thirds of the land, and would appear to be an equitable solution if it were without manifest injustice to either the widow or the children. That question arises when the assignment is made and is subject to confirmation by the trial court. . . . ” (292 Ala. at 667, 299 So.2d at 266)

The property conveniently falls into three categories: Income producing residential and commercial property, farm lands, and vacant non-income producing lands. After the affirmance by this court of the trial court’s decree in the previous appeal, commissioners were appointed and the widow’s dower interest has been set aside in each of these three categories. On the present appeal, she contends that this has worked a manifest injustice to her insofar as the allotment of dower in the vacant non-income producing property is concerned. She has no complaint about the assignment of dower in the income producing residential and commercial property; nor does she complain about the allotment of dower in the farm lands.

Indeed, it would be difficult to understand if she did complain about the allotment of these lands, since the record shows that, of 1,546 acres of farm land, 420 acres' were assigned to the widow. Of the income producing residential and commercial property, which was producing an annual rental of $30,368, a share producing $10,361 was allotted to the widow.

The widow now asserts that the vacant non-income producing property should be treated as if it were all of the property which her husband owned; and that her dower interest in those properties should be commuted to cash. It is her contention that the unproductive lands have a high market value; but that she is precluded from enjoying any of the benefits of this value, because these lands are not producing any income. This, she asserts, constitutes an injustice requiring that her dower interest in these lands be commuted to cash. We cannot agree.

Looking to the entire real estate and the allotment of dower in all of the lands of Mr. Mixon, we do not think the widow has been treated unfairly. In 28 C.J.S. Dower § 12, the following appears:

“The common-law estate of dower was confined to an interest in real estate, and, as a general rule, dower attaches to all lands and tenements of which the husband was seized of an estate of inheritance at any time during coverture, or, under some statutes, at the time of his death. This is so whether the dowress can make beneficial use thereof or not.”

We could agree with the widow if the trial court had allotted to her a dower interest only in the nonproductive lands.

In II Scribner, Law of Dower 599, 600, 601 (2nd ed. 1883), the rule is set out as follows:

“ . . . ‘In the assignment of dower, commissioners are to regard the rents and profits only, of the several parcels of the estate out of which dower is to be assigned. When they have ascertained the annual income of the whole estate, they ought to set off to the widow such a part as will yield her one-third of such income, in parcels best calculated for the convenience of herself and of the heirs.
“ . . . ‘in assigning dower, regard should be had to the productiveness, as well as to the value of the different parcels of the estate; and the allotment should include such as will yield the widow a fair share of the annual income of the whole. To allow her unproductive property only, as wild lands, a house without fields, &e., though it may be one-third of the value, is neither just nor legal.’ ...”

Here, however, the commissioners did not allow the widow unproductive property only. The quoted rule was followed explicitly in that the commissioners set apart to her such part as will yield one-third of the income of the whole estate. This seems to us to produce a fair and equitable result, both for the widow and the heirs. We agree with the appellant that the court has the power to award compensation in lieu of dower if an assignment of dower by metes and bounds results in manifest injustice to the widow. However, we do not think the assignment by metes and bounds in this case has produced an injustice to the widow.

On prior appeal of this case, the widow argued that she should be awarded compensation in lieu of dower in the entire real property of her deceased husband. She now restricts that argument to the nonproductive property. In rejecting her argument on prior appeal, Justice Merrill noted:

“ . . . The trial court rejected appellant’s contention that her dower should be based on the total market value of the land and that she should receive payment of the interest on one-third of that value for the rest of her life. For example — 6% interest on $300,000.00 (Vs of the value) is $18,000.00 per annum, which would consume all but $11,000.00 of the total annual income from the property. This would be manifestly unjust to the children.” Byars v. Mixon, supra, 292 Ala. at 669, 299 So.2d at 268.

On the instant appeal, the widow asserts that, as to the non-income producing lands, her dower should be based on the total market value, which she claims is $436,400. One-third of this amount is $145,466, which, at 6% per annum, would amount to $8,727.96. This, she claims, she is entitled to in addition to the $10,361 allotted to her from the income producing property. This would mean that the widow would receive over $18,000 per annum for life, from a total income to the whole estate of slightly more than $30,000. We think this, too, would be manifestly unjust to the children.

Although the appellant raises several additional points, in brief, this is, in her words, the only “real” issue involved on this appeal and, therefore, the only issue to which we address ourselves.

The judgment of the trial court is affirmed.

AFFIRMED.

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