author: ALMON, Justice.

text:
    Jimmy Lee McWHORTER v. A. B. CLARK, as Administrator of the Estate of Henry C. Henderson, Deceased.
    SC 1877.
    Supreme Court of Alabama.
    Feb. 18, 1977.

      Alan C. Livingston, Lee & Mclnish, Do-than, for appellant.
    Joel W. Ramsey, Ramsey & Baxley, Do-than, for appellee.
   ALMON, Justice.

Alex Van McWhorter, the eight-year-old son of the appellant-plaintiff, Jimmy Lee McWhorter, while riding a bicycle, was struck and killed by Henry C. Henderson, now deceased. Appellee-defendant A. B. Clark is the administrator of the Henderson estate. Appellant brought an action for wrongful death against appellee. A jury rendered a verdict for appellee.

Appellant claims that a police officer should not have been allowed to testify as to the speed of Henderson’s vehicle, that the issue of contributory negligence should not have been submitted to the jury, and that testimony that the bicycle Alex was riding did not have a headlight was not germane to the case.

I

Over the appellant’s objection, Officer Smith, who had previously investigated 300 to 850 automobile accidents, testified on cross-examination that in his opinion the Henderson vehicle was traveling 30 to 35 miles per hour at the time of the accident. The foundation for his opinion was scuff marks believed to have been made at the point of impact, torn up gravel believed to have been made at the point of impact, the measured distance of 115 feet from the point of impact and the Henderson car, and a booklet from the Traffic Institute of Northwestern University.

The question is not whether Officer Smith is a qualified expert who may give his judgment as to the speed of a car, but rather, whether even an expert may give his judgment based on the information Officer Smith had before him. The law on this question is stated in Maslankowski v. Beam, 288 Ala. 254, 264, 259 So.2d 804, 813 (1972):

“This Court has said that an expert, not an eyewitness to the collision, can testify as to the estimated speed of an automobile predicated on the distance the tires ‘skidded’ or were dragged along the highway before impact, Jackson v. Vaughn, 204 Ala. 543, 86 So. 469, but not predicated on the distance the tires ‘skidded’ after impact. Jowers v. Dauphin, 273 Ala. 567, 143 So.2d 167 (1962).”

In this case Officer Smith’s judgment as to the speed of the Henderson car was based entirely on the distance between the point of impact and the distance to the car after it came to a halt. The car was not even shown to have come to a skidding halt. Nor did Officer Smith establish where Henderson initially applied his brakes. He may have applied his brakes some distance before the accident. Given the facts before Officer Smith, the court erred in admitting his judgment as to the speed of the Henderson car.

The appellee points to the case of Maslan-kowski v. Beam, supra, that a properly qualified witness may base his opinion on facts derived from events occurring after the accident. The expert in Maslankowski was a “professional Accident Reconstruction Consultant” with extensive qualifications. His detailed reconstruction of the accident is in no way analogous to this case. The situation before us was specifically excepted from the situation before the court in Maslankowski.

“In each of these cases [where expert testimony was not allowed based on physical facts brought into being after impact] there was no similar expert before the trial court. In practically all of these cases the expert was a law enforcement officer, usually the investigating officer. In such cases, the so-called expert testified, or offered to testify, that he had observed the physical facts around the accident and that his estimate of speed was based upon such physical facts and his experience in investigating accidents. No explanation of the scientific methods employed, if any, were ever presented to the trial court. In each of those cases, this Court was motivated to think, since there was such a sparcity of scientific information presented, that the trial court correctly ruled such opinion testimony was inadmissible; or on the other hand, that the trial court abused its discretion in allowing such so-called expert testimony to be presented to the jury.” Id. at 265, 259 So.2d at 814.
II
The judge charged the jury:
“Now, in his answer number three, he [appellee-defendant] comes in and he says, ‘That on the time and occasion complained of, Alex Van McWhorter, was guilty of contributory negligence.’ He is saying that the deceased boy riding the bicycle was guilty of contributory negligence. Now, I would like to read to you about contributory negligence: ‘A child between the age of seven and fourteen years of age is presumed to be wanting in that degree of care, judgment, discretion, and sensitiveness to danger, which belongs to the average child which is fourteen years of age, and therefore considered to be incapable of committing contributory negligence.’ This presumption is rebuttable. And if you are reasonably satisfied from the evidence that the plaintiff, or the deceased boy, was between the age of seven and fourteen years, and did, at the time of the occasion complained of, possess that degree of care, judgment, discretion and sensitiveness to danger belonging to an average child fourteen years of age, then you would consider and determine whether or not he was guilty of contributory negligence. Now, that applies to the contributory negligence of a minor.”

The judge concluded his charge with the following remarks:

“If, after you have weighed and considered all of the evidence in the case, that for the plaintiff and that for the defendant, if you are not reasonably satisfied that the defendant was negligent at the time and on the occasion testified to by the witnesses in this case; or you are reasonably satisfied that the deceased boy was guilty of contributory negligence, which was the proximate cause of his death; or, you are reasonably satisfied that the contributory negligence of the father proximately caused the death of the deceased, then you would find for the defendant.”

The appellant does not contend that the charge was an incorrect statement of the law (see Cedar Creek Store Co. v. Stedham, 187 Ala. 622, 65 So. 984 (1914)), but rather that the judge erred in submitting the question of contributory negligence to the jury because not a scintilla of evidence existed tending to show that the deceased boy possessed the maturity and sensibility of a fourteen-year-old.

The appellee does not argue that such evidence exists, but rather, attempts to raise arguments that were not before the trial court, namely that we should adopt the “same age standard” (see “Contributory Negligence of Children,” 77 A.L.R.2d 917, § 6), or if we decline, that we should still allow the charge because the damages claimed are punitive under the Wrongful Death Statute and the reasons for protecting minors therefore fail. Regardless of the merits of appellee’s contentions, we shall not review questions not decided by the trial court. Cox v. Howard Hall Co., 289 Ala. 35, 265 So.2d 580 (1972).

We have read the record and agree that the evidence completely failed to address the maturity and sensibility of the deceased child. If upon re-trial the facts remain the same, we are of the opinion that the trial judge should not submit to the jury the issue of contributory negligence of the deceased child.

Ill

The third issue — whether testimony regarding the absence of a light on the front of the bike was admissible — may also arise on remand. The appellant objected to the testimony on the basis that it had no bearing on the case because the boy had been hit from behind. The appellant further argues that the appellee was actually seeking to establish the contributory negligence of the child, which could not be properly considered until the presumption against his contributory negligence was overcome (see issue II).

The appellee argues that whether the bike had a front headlight is relevant to the initial negligence of the appellee’s testate, as distinct from the contributory negligence of the child or his father.

“The question of whether a particular piece of evidence is relevant is one addressed largely to the discretion of the trial court (Bradley v. Jones, 282 Ala. 331, 211 So.2d 465 (1968); Occidental Life Ins. Co. of California v. Nichols, 266 Ala. 521, 97 So.2d 879 (1957); Sorrell v. Scheuer, 209 Ala. 268, 96 So. 216 (1923)); . Alabama Power Company v. Tatum, 293 Ala. 500, 306 So.2d 251, 258 (1975).
“. . . [WJhere the competency of evidence is doubtful, the better practice is to allow the evidence to go to the jury, leaving them to determine its weight and credibility. (Citation omitted.) That is to say, if the evidence tends to prove a fact for determination by the jury, however slight the evidence may be, it is relevant (Citation omitted).” Sorrell v. Scheuer, 209 Ala. 268, 269, 96 So. 216, 217 (1923).

Conceivably, a light on the front of the bike could be noticed by a car approaching from the rear, especially if the light swung back and forth as the bike was peddled. Consequently, we believe the judge was within his discretion to admit the testimony as to the absence of the bike headlight.

The judgment is reversed and the cause is remanded.

REVERSED AND REMANDED.

BLOODWORTH, JONES and EMBRY, JJ., and SIMMONS, Retired Circuit Judge, sitting by designation of the Chief Justice, concur.


source: Caselaw Access Project

author: MADDOX, Justice.

license: Public Domain

text:
    John R. FOOTE et al. v. Harold B. MOORE, etc.
    SC 1835.
    Supreme Court of Alabama.
    Feb. 25, 1977.

      James E. Hedgspeth, Jr., Jack Floyd, Gadsden, for appellants.
    Larry H. Keener, Keener, Cusimano & Cardwell, Gadsden, for appellee.
   MADDOX, Justice.

Plaintiff-appellee, Harold B. Moore, a real estate agent, filed suit against appellants, John R. Foote, his brother, Gurnie H. Foote, and Foote Brothers’ Furniture, Inc., claiming commissions under a real estate sales contract. The jury returned a verdict in favor of Moore for $13,167.50. The trial court denied appellants’ motion for a new trial and they appealed. We affirm.

The parties talked about selling appellants’ stores which were located in Rainbow City and Alabama City, respectively. On August 7,1972, Moore and the Foote brothers executed a contract which was prepared by Moore, and read, as follows:

“This is an exclusive contract for the sale of property between the owner, Foote Bros. — Rainbow Dr. & Forrest Ave., and Harold B. Moore Realty Co., Gadsden, Alabama. This property is as follows: Foot Bros. Furniture Stores, Rainbow Dr., Ala. City, Furniture & Carpet & Lots. Lease account, 30 & 70 day accounts, Inventory & Fixtures, all accounts. I will furnish title policy brought down to date & convey title by warranty deed. This property is in fee simple in my name & title is good and saleable. I agree to pay Harold B. Moore Realty Co. 10% commission on the sale of this property. The desired price is $670,-000 Bldg. /834,000 Businesses. I agree to refer all inquiries to Harold B. Moore or his agent and to give all possible assistance in securing a purchaser and to PAY COMMISSION in the event I sell direct. Also in the event this property is rented or leased rather than sold, I agree to pay V2 of the first month’s rent & 5% for the balance of the lease, to be paid to Harold B. Moore on or before the 10th of each month. Harold B. Moore is the Sale agency for 150 days from this date and thereafter until given written. notice of 30 days. I hereby acknowledge receipt of a copy of this authorization to sell.
/s/ /%/ OWNER John R. Foote Owner Gurnie H. Foote Date 8/7/72 /s/ Witness Harold B. Moore Ala. 2618 Forrest Ave. 547-5489"

John Foote provided the realtor Moore with a list of contacts and Moore immediately started to negotiate the purchase of the businesses. Moore made several contacts and submitted progress reports to the Footes. One of the contacts was to Rhodes Furniture Company whose home office is located in Atlanta, Georgia. Following Moore’s correspondence with Rhodes, Albert Haywood Arnold, Rhodes’ area manager for the Alabama-Georgia region contacted Moore and asked him to supply some data pertaining to the Foote Brothers’ operation. Moore forwarded the requested information, including a resume of the operation of the stores along with profit and loss statements.

In late August or early September of 1972, Mr. Arnold and Mr. Wilgus, president of Rhodes, plus another individual from Rhodes, met in Gadsden, and together with Moore, went to the Rainbow City store. On this occasion the Rhodes personnel met with John Foote and inspected that store’s layout. Later that day, the Rhodes personnel, along with John Foote and Moore, drove to the Alabama City stores where they met with Gurnie Foote. After looking over the Alabama City stores, the people from Rhodes returned to Atlanta. Following this first visit, Rhodes made it clear to both the Foote brothers and Moore that it was not interested in the package deal offer to purchase all of the stores. However, some two or three weeks after this first visit, Rhodes made a second visit. In addition to Arnold, Rhodes was represented by their Vice President and Furniss Johnson. Johnson was in charge of the acquisition of stores on behalf of Rhodes. On this occasion, Johnson, Arnold and Moore met with John Foote at the Rainbow City store. After looking over this store, they left, with Johnson returning to Atlanta.

On December 4, 1972, John Foote sent a letter to Moore informing him that his contract was terminated as of January 7, 1973. Moore replied by letter dated December 8, 1972, saying that he would be entitled to a commission if the property was sold in the future to any prospects that he had worked. During this period Moore continued his contacts with Rhodes and had regular meetings with Arnold.

On February 3, 1973, Gurnie Foote wrote Moore advising him that his contract was cancelled. Moore received a similar letter from Gurnie Foote on February 23, 1973. The following day Moore sent a letter to Gurnie Foote claiming a commission if all or part of the Foote Brothers’ business was purchased by a client that he had worked during the period of his contract. On February 26, 1973, Gurnie Foote wrote Moore stating “[0]ur contract with you has been completely terminated. Please take our property off your list.”

Rhodes made a third visit to the Rainbow City store in February, 1973. Present at this meeting were Johnson, Arnold and John Foote. Neither the Foote brothers or Rhodes contacted Moore about this meeting. On February 27, 1973, Johnson wrote a letter to John Foote advising him that Rhodes would submit an offer in the near future. This offer was made in letter form to John Foote on March 5, 1973. On April 13,1973, John Foote wrote Johnson incorporating substantially all of the provisions in Johnson’s offer to purchase. On April 17, 1973, Johnson wrote John Foote and indicated that the general provisions of his letter would be satisfactory except for two changes made in the lease provisions.

In July or August of 1973, John Foote contacted Arnold about selling the Rainbow City store. In late August, 1973, Rhodes purchased the Rainbow City store from the Foote brothers. When Moore learned of the purchase, he contacted appellants demanding his commission. They refused and Moore filed his complaint. The jury found for Moore in the sum of $13,167.50.

Appellants raise two issues on appeal. First, they contend that the trial court erred in giving Moore’s requested charges 4 and 5. Second, they contend that the trial court erred in refusing to give appellants’ charge 1 to the jury.

Moore contends that charges 4 and 5 are applicable to a contract to purchase, and that, in the instant case, the agreement is based on a contract to sell property. Charges 4 and 5 provide:

“4. I charge you, members of the jury, that in determining whether a broker has earned a commission for procuring a purchaser, it is enough that the effort of the broker, acting upon the purchaser, are the efficient cause of the purchaser’s offer to purchase, but the broker’s efforts need not be the sole cause.
“5. I charge you, members of the jury, that if you find from the evidence that Harold B. Moore was the agent of the Defendants, and that Harold B. Moore enlisted Rhodes’, Inc., as a customer, and that the Defendants new (sic) that Harold B. Moore had enlisted Rhodes’ as a customer, and that Harold B. Moore’s services were the efficient cause of the offer of Rhodes’ to purchase from the Defendants, then your verdict should be in favor of the Plaintiff against the Defendants.”

Appellants refer us to a line of cases in which the Alabama courts have been called upon to determine what rules of law are applicable to real estate broker’s contracts, particularly contracts to procure a purchaser and contracts to sell real property. Handley v. Shaffer, 177 Ala. 686, 59 So. 286 (1912); Bailey v. Padgett, 195 Ala. 203, 70 So. 637 (1915).

Appellants concede in brief that the trial court’s oral charge “comes the closest to stating a correct proposition of the law.” The trial court’s oral charge reads in pertinent part:

“A broker who procures a prospect who is ready, willing and able to buy under the terms of the contract during the existence of the contract, is entitled to his commission, although the sale may not have been concluded during the term of the contract. However, the seller is not bound forever by the contract. And unless the broker has procured a purchaser who is ready, willing and able to buy under the terms of the contract and during the existence of the contract, or unless the sellers were guilty of bad faith or guilty of fraud in their subsequent negotiations with the broker’s prospect, the broker would not be able to recover.”

In Penney v. Speake, 256 Ala. 359, 54 So.2d 709 (1951), this Court stated:

“While there is a distinction between contracts by which a broker is employed to procure a purchaser for property and contracts by which he is employed to effect a sale or to sell, the rule. in this jurisdiction is that brokers employed under the latter type of contract, as well as those employed under the first-mentioned type, are entitled to their compensation where they have procured a purchaser ready, able and willing to perform the terms specified or agreed upon, notwithstanding no actual transfer takes place because of the refusal of the seller to convey.”

In Alabama, then, it is a well established rule of law that a real estate broker earns his commission when he finds a purchaser ready, willing and able to buy on the terms specified or agreed upon. And at that time, the sale is treated as constructively consummated insofar as the broker’s right to a commission is concerned. Ar-Con Building Specialties, Inc. v. Famco, Inc., 480 F.2d 162 (CA5 1973); Taylor v. Riley, 272 Ala. 690, 133 So.2d 869 (1961); Handley v. Shaffer, 177 Ala. 636, 59 So. 286 (1912). A careful reading of the cases leads us to the conclusion that charges 4 and 5 along with the trial court’s oral charge were properly given and adequately state the law to be applied in this case.

Appellants contend, however, that even if the above-mentioned charges are correct propositions of law, the giving of these charges was erroneous in that Moore received no offer from Rhodes during the terms of his contract. Appellants’ position is that Moore brought Rhodes to them as a prospect, but not as a purchaser and therefore, Moore cannot claim a commission on a sale which transpired some seven months after Moore’s contract had terminated. There is ample evidence to show that appellants knew after Rhodes’ first visit in late August or early September, 1972, that Rhodes was not interested in a package deal offer. In addition, there is evidence to support the finding that appellants did not instruct Moore to discontinue his negotiations with Rhodes.

The evidence as to whether Moore was a procuring cause of the purchase of appellants’ store and business in Rainbow City and whether Rhodes was an able, ready and willing buyer were questions for the jury’s determination. Penney v. Speake, 256 Ala. 359, 366, 54 So.2d 709 (1951); Marx v. Lining, 231 Ala. 445, 165 So. 207 (1935). It is uncontradicted that Moore brought appellants and Rhodes together for the first time. At the first meeting between the parties Rhodes was interested in at least the Rainbow City Store even though the contract spoke in terms of a package deal. The jury could have concluded, however, that the sellers knew as early as the time of the first meeting with Rhodes’ representatives that Rhodes was interested only in the Rainbow City Store. As a matter of fact, all negotiations between the broker, the prospective buyer, and the sellers centered around this one store after the first meeting, and it was this store which is the subject matter of the lawsuit.

The trial court’s general oral charge, to which there was no objection, stated that:

“. . the seller is not bound forever by the contract. And unless the broker has procured a purchaser who is ready, willing and able to buy under the terms of the contract and during the existence of the contract, or unless the sellers were guilty of bad faith or guilty of fraud in their subsequent negotiations with the broker’s prospect, the broker would not be able to recover.”

We think the evidence supports a finding by which the jury could have concluded that Moore obtained a purchaser who was ready, willing and able to buy. In fact, the jury could have concluded from the evidence that at the time the sellers and the broker were in a dispute over the contract that the sellers were negotiating for and received an offer from Rhodes. Therefore, there was ample evidence from which the jury could have concluded that the sellers were guilty of bad faith in their subsequent negotiations with the broker’s prospect. Where there is credible evidence which justifies the verdict the verdict of the jury is not to be disturbed. W. T. Ratliff Company, Inc. v. Purvis, 292 Ala. 171, 178, 291 So.2d 289 (1974).

Appellants contend that the trial court erred in refusing to give appellants’ charge no. 1 to the jury which reads:

“1. Where an agent’s authority to sell lands upon certain terms is revoked, and thereafter, the owners, in good faith, sell the lands upon terms less favorable to themselves, to one who had declined to purchase from the agent, such agent is not entitled to a commission.”

Rule 51, ARCP provides in relevant part:

“ * * * The refusal of a requested, written instruction, although a correct statement of the law, shall not be cause for reversal on appeal if it appears that the same rule of law was substantially and fairly given to the jury in the court’s oral charge or in charges given at the request of the parties. . . . ”

Even assuming that appellants’ charge was proper, we find no reversible error in refusing the charge in light of the trial court’s oral charge. Alabama Power Company v. Tatum, 293 Ala. 500, 306 So.2d 251 (1975).

The judgment of the trial court is affirmed.

AFFIRMED.

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


author: PER CURIAM.

text:
    In re COWIN EQUIPMENT COMPANY, INC., a corp. v. ROBISON MINING COMPANY, INC., a corp., et al. Ex parte Madison W. O’KELLEY, Jr.
    SC 2053.
    Supreme Court of Alabama.
    Feb. 25, 1977.

      W. S. Pritchard, Birmingham, for petitioner.
    No brief for respondent.
    Robert W. Kracke and Robert W. Gwin, Jr., Birmingham, in support of petition, amicus curiae.
   PER CURIAM.

The Legislature, during the 1976 Regular Session, passed two separate acts, Act Nos. 757 and 758, both of which are said to apply to counties of 600,000 inhabitants or more. The title of Act No. 757 reads: “ . . . giving constables in all such counties the exclusive power to serve all civil processes in the geographical district or areas for which they were respectively, elected or appointed.” Section 2 of Act No. 757 provides that “ . . . the constable or his duly authorized deputy is hereby vested with the exclusive power to serve . all civil processes issuing out of any court in the state . . . ”

The title of Act No. 758 provides for the exclusive authority of constables or their duly authorized deputies to serve all civil subpoenaes in the geographical district or area for which they were respectively elected or appointed, except for jury or grand jury service, and vesting in the sheriffs or their deputies the exclusive authority to serve all criminal subpoenaes. Section 2 of Act No. 758 provides: “ . . . the constable or his duly authorized deputy is hereby vested with the exclusive power to serve in the geographical district or area . all civil processes issuing out of any court in the state . . .”

After these two acts were signed by the governor, the petitioner herein, an attorney for the plaintiff, filed a proceeding in the Circuit Court of Jefferson County, and made a motion to perfect service of the complaint pursuant to Rule 4(a)(3)(A), Alabama Rules of Civil Procedure. Judge Wallace Gibson, as Circuit Judge, entered an order denying the motion of petitioner to make service of the complaint, because it was his opinion that the foregoing acts required service of the complaint to be made by a constable.

A petition for mandamus was thereupon filed in this court asking this court to declare Acts Nos. 757 and 758 unconstitutional and of no force and effect.

The new Judicial Article of the Constitution, ratified by the people of this state in December, 1973, vests within the Supreme Court of Alabama the power and authority to make and promulgate rules governing administration of all courts within the state, and provides that any rules so promulgated by the Supreme Court can be changed only by an act of the legislature, which act must have state-wide application. Sec. 6.11, Article VI, is carried in Michie’s Code as Art. 6, Sec. 150.

The Alabama Rules of Civil Procedure were adopted by the Supreme Court on January 3, 1973. These rules were adopted pursuant to Act No. 1311, adopted by the legislature in its Regular Session in 1971. Rule 4(a)(3)(A) provides that service of process on resident entities may be made by a person appointed by the court for that purpose. The provisions of this rule have been re-adopted by this court, effective January 16, 1977. It now appears as Rule 4.1(b)(2).

The legislature implemented the Judicial Article by Act No. 1205, 1975 Legislature, Regular Session. That act provides that any legislation which affects the court systems of Alabama must be a general act of state-wide application, and further requires that notice to the Administrative Director of Court must be given before the enactment of such legislation.

Act Nos. 757 and 758 are in clear violation of Sec. 6.11, Article VI, Constitution. Rules adopted by this court, authorized by the Constitution of this state, can, by express provision of the Constitution, be changed only by a general act of state-wide application. By their express terms, Act Nos. 757 and 758 can apply only to Jefferson County.

In ratifying the Judicial Article, the people of this state mandated a unified court system, with uniform rules applicable to all citizens of this state. This court has adopted rules applicable in all courts of this state. To change any rule so adopted requires a general act of state-wide application.

Acts Nos. 757 and 758, 1976 Legislature, Regular Session, are violative of Art. VI, Sec. 6.11 of the Constitution and are, therefore, void and of no effect. We, therefore, pretermit any discussion of the effect of the failure to comply with Act No. 1205, Article 6.17, 1975 Regular Session, which requires that any local legislation which pertains to the judiciary must be delivered, by certified copy, to the administrative director of courts.

The writ of mandamus as prayed is due to be granted.

If, upon notification of this decision, the circuit court does not set aside the order denying the motion of the petitioner to be designated as a person to perfect service of the summons and complaint in this cause and directing that the clerk place the summons and complaint in the hands of the constable within whose geographic district the defendant resides and enter, in - lieu thereof, an order permitting the summons and complaint to be served in accordance with the provisions of Rule 4.1(b)(2), ARCP, then a writ to effectuate such ends will issue upon the request of the petitioner.

WRIT GRANTED CONDITIONALLY.

All of the Justices concur except TOR-BERT, C. J., not sitting.


author: SHORES, Justice.

text:
    Oscar Hubert CAMPBELL v. Richard A. RYAN and State Farm Mutual Automobile Ins. Co.
    SC 2064.
    Supreme Court of Alabama.
    Feb. 25, 1977.

      Clarence Simmons, for Simmons & Tor-bert, Gadsden, for appellant.
    Curtis Wright, for Dortch, Wright & Ford, Gadsden, for State Farm Mut. Auto. Ins. Co.
   SHORES, Justice.

In September of 1972, Richard A. Ryan was driving a 1964 Plymouth automobile owned by his father, Athel W. Ryan, which collided with an automobile owned and operated by Oscar Hubert Campbell. Campbell was seriously injured and recovered a $32,500 judgment against Richard A. Ryan.

At the time of the accident Athel W. Ryan owned two automobiles, both insured with State Farm. One policy covered a 1972 Pontiac automobile and the other covered the 1964 Plymouth being driven by his son, Richard, at the time of the accident. The 1972 Pontiac was used predominantly, by young Ryan, but it was at a local automobile dealership undergoing repairs at the time of the accident. The 1964 Plymouth was being used by young Ryan with his father’s permission while the Pontiac was being repaired. Richard Ryan was a resident of Athel W. Ryan’s household at the time of the accident and, therefore, was an insured under both State Farm policies.

State Farm paid Campbell $10,800, the maximum limit afforded under the policy covering the Plymouth. Campbell initiated this lawsuit seeking to collect the remainder of the judgment from the proceeds of State Farm’s policy covering the 1972 Pontiac, contending that he was entitled to the benefits under that policy because, at the time of the accident, Richard Ryan was using the Plymouth as a temporary substitute automobile for the Pontiac.

The trial court entered judgment in favor of State Farm and Campbell appealed.

The trial court determined that State Farm was not liable to Campbell under the provisions of the policy covering the 1972 Pontiac, in that the 1964 Plymouth was not a temporary substitute automobile as defined in that policy. The pertinent provisions of the policy covering the 1972 Pontiac are:

“DEFINITIONS . . .
“Owned Motor Vehicle — means the motor vehicle . . . described in the declarations, and includes a temporary substitute automobile, a newly acquired automobile, and, provided the described motor vehicle is not classified as ‘commercial’, under coverages A. B. C. and M, a trailer (as defined herein) or a detachable living quarters unit owned by the named insured or his spouse, if a resident of the same household.
“Temporary Substitute Automobile— means an automobile not owned by the named insured or his spouse while temporarily used with the permission of the owner as a substitute for the described ' motor vehicle when withdrawn from normal use because of its breakdown, repair, servicing, loss or destruction.”

The words italicized are italicized in the policy.

Campbell contends that these two definitions create an ambiguity which must be resolved in favor of the insured, and against State Farm. State Farm denies that there is any ambiguity and contends that the Plymouth was not a temporary substitute automobile, because, as that term is defined in the policy, it means an automobile not owned by the named insured.

The basic question is whether an automobile owned by the named insured qualifies, under the terms of the policy, as a temporary substitute automobile. Couch, in his treatise, says:

“By express provision or construction, an automobile owned by the insured cannot qualify as a substitute automobile . even though the insured uses it in place of his other automobile, which is temporarily withdrawn from normal use. That is, a temporary substitution of vehicles clause applies to a nonowned vehicle and not to the substitution in the policy of another vehicle owned by the insured.” Couch on Insurance 2d (1964), § 45:235.

We agree with this statement unless some other provision of the policy conflicts with the definition of “temporary substitute automobile” and thereby creates an ambiguity, which would require resolution in favor of the insured. Safeco Insurance Company of America v. Banks, 275 Ala. 119, 152 So.2d 666 (1963). The policy involved in Safeco carried definitions of “owned automobile” and “temporary substitute automobile” as follows:

“(1) ‘ “owned automobile” ’ means the described private passenger or utility automobile owned by the named insured, and includes a temporary substitute automobile and any trailer owned by the named insured; [Emphasis supplied]
“(2) ‘ “temporary substitute automobile” ’ means any automobile or trailer not owned by the named insured while temporarily used as a substitute for the owned automobile or trailer when withdrawn from normal use because of its breakdown, repair, servicing, loss or destruction; [Emphasis supplied]” 275 Ala. at 121, 152 So.2d at 669.

Sims, the insured, at the time of the accident, was driving a Chrysler automobile owned by him, but normally used by his wife, as a substitute for the Ford automobile described in the policy, which was undergoing repair. This court held that the definition of “owned automobile” included the Chrysler, a temporary substitute automobile owned by the insured. The court found that it was not the intention of-the insurance company “ . . to exclude the Chrysler automobile of Sims from coverage while it was being used as a temporary substitute for the Ford automobile regularly used by Sims but under repair during the use of the Chrysler.” 275 Ala. at 122, 152 So.2d at 670.

In the instant case, Campbell argues that Safeco is controlling. State Farm insists that it is not because the definition of “owned motor vehicle” in the policy involved here differs from the Safeco definition. The Safeco decision resulted from the court’s reading the definition of “owned automobile” to include a temporary substitute automobile owned by the insured. It rejected Safeco’s argument that the word “owned” in the last line of that definition referred only to “any trailer” owned by the named insured. State Farm asserts that the word “owned” as used in the definition of “owned motor vehicle” in the instant policy modifies “trailer” and “a detachable living quarters unit.” Rules of English grammar will not permit us to hold that “owned” modifies temporary substitute automobile.

It seems quite clear that the reference to temporary substitute automobile, italicized as were other terms in the definition, was intended to carry the meaning given that term in the definition section of the policy. A “temporary substitute automobile” is specifically defined as one not owned by the named insured.

The policy provisions in this case are more similar to the provisions involved in Mattox v. Pennsylvania Threshermen & Farmers’ Mutual Casualty Ins. Co., 276 Ala. 172, 160 So.2d 458 (1964), than they are to the Safeco policy. In Mattox, we held that an automobile owned by the named insured did not qualify as a temporary substitute automobile, which, as is the case here, was defined in the policy as one not owned by the named insured.

The trial court correctly concluded that State Farm was not liable to Campbell under the policy covering the 1972 Pontiac,

AFFIRMED.

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


author: FAULKNER, Justice.

text:
    Marlin E. HAMMOND, as Administrator, etc. v. REALTY LEASING, INC., a corp., et al.
    SC 2171 and SC 2172.
    Supreme Court of Alabama.
    Feb. 25, 1977.
    Francis H. Hare, Birmingham, for appellants.
    Jere C. Segrest, Dothan, for appellee.
   FAULKNER, Justice.

Two minor children of Marlin E. Hammond (one 8 years old, and one 5 years old) drowned in a pond on the defendant’s property. On the day of this grievous occurrence, these children, without invitation of the property owner, went to play on the vacant lot on which the pond was located. While there, playing, sliding down a mound of dirt, looking for frogs, their apparent fun and good time was turned into a disaster.

Suit was filed by Hammond contending that the defendant was negligent by failing to exercise reasonable care in creating or permitting the existence of this dangerous condition. His theory of recovery did not include “attractive nuisance,” “dangerous instrumentality,” or “wantonness” — only simple negligence.

The defendant filed a motion to dismiss; it was granted, and this appeal is from the order of dismissal. We affirm on authority of Tolbert v. Gulsby, Ala., 333 So.2d 129 (1976), holding that:

“Under a negligence count, the duty owed by a landowner depends on 'the status of the injured party in relation to the defendant’s land. See Mullins v. Pannell, 289 Ala. 252, 266 So.2d 862 (1972); Autrey v. Roebuck Park Baptist Church, 285 Ala. 76, 229 So.2d 469 (1969). If the injured party is determined to have been a trespasser, the landowner owes only the duty not to wantonly or intentionally injure him. City of Dothan v. Gulledge, 276 Ala. 433, 163 So.2d 217 (1964); Alabama Great Southern Railroad Co. v. Green, 276 Ala. 120, 159 So.2d 823 (1964). ‘Under ordinary conditions trespassing children, or children on the land of another as bare licensees, occupy the same position as trespassing adults.’ Alabama Great Southern Railroad Co. v Green, supra; Mullins v. Pannell, 289 Ala. 252, 266 So.2d 862 (1972). If plaintiff is found to have been on defendant’s property with his consent or as his guest, but with no business purpose, he attains the status of licensee and is owed the duty not be willfully or wantonly injured or not to be negligently injured after the landowner has discovered his peril. Autrey v. Roebuck Park Baptist Church, 285 Ala. 76, 229 So.2d 469 (1969).”

Also, see Earnest v. Regent Pool, Inc., 288 Ala. 63, 257 So.2d 313 (1972).

AFFIRMED.

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


text:
    OPINION OF THE JUSTICES.
    No. 231.
    Supreme Court of Alabama.
    March 3, 1977.
   The Senate of the Legislature of Alabama in its 1977 Regular Session adopted the following Resolution:

SR 257 REQUESTING AN ADVISORY OPINION OF THE JUSTICES OF THE SUPREME COURT RELATIVE TO THE TERMINATION OR CONTINUANCE OF AGENCIES NOT SPECIFICALLY LISTED IN SECTION 3 OF ACT NO 512, REGULAR SESSION 1976.

WHEREAS, Resolutions from the Sunset Committee will be presented to the Legislature on the 10th Legislative day; and

WHEREAS, over 200 resolutions have been filed in the House and Senate; and

WHEREAS, Act No. 512, Regular Session, 1976, provides for definite “termination dates” for all state agencies as defined in said Act; and

WHEREAS, October 1, 1978, is the date designated for “any state agency existing on the date of the passage of this Act (512) and not specifically listed . . and

WHEREAS, a controversy has arisen as to whether agencies can be considered during the current session that are not specifically listed under section 3 of Act 512.

NOW THEREFORE BE IT RESOLVED BY THE SENATE OF ALABAMA, That the following question be submitted under Title 13, Section 34, Code of Alabama to the Supreme Court of Alabama for an advisory opinion:

1. “Can an agency not specifically listed under Section 3 of said Act 512 for termination or continuance on October 1, 1977, be considered and voted on during the 1977 Regular Session of the Legislature?”

2. “What is the ‘termination date’ for agencies not specifically listed by name in said Act 512?”

RESOLVED FURTHER, That the Secretary of the Senate transmit forthwith upon the passage of this resolution nine copies along with nine copies of Act No. 512 to the Supreme Court.

ANSWER TO QUESTIONS DECLINED.

To the Members of the Senate

State Capital

Montgomery, Alabama 36130

Gentlemen:

We acknowledge receipt of Senate Resolution No. 257 by Senator Perloff concerning Act No. 512, Regular Session 1976, the Sunset Act, relative to whether state agencies which are not specifically listed under Section 3 of Act No. 512, may be considered for termination or continuance during the regular session of the Legislature 1977, under the provisions of that Act.

After perusing this request, we are constrained to respectfully point out that this Court is restricted by statute to answering questions of an advisory nature solely upon important constitutional questions. Title 13, § 34, Alabama Code; Opinion of the Justices, 286 Ala. 156, 238 So.2d 326 (1970); Opinion of the Justices, 280 Ala. 692, 198 So.2d 269 (1967). Accordingly, we regret that we must decline to respond to the question submitted to us as we perceive no constitutional issue therein.

Moreover, we respectfully point out that the section of the Alabama Code authorizing us to issue advisory opinions does not authorize opinions on legislation already having been enacted by the legislature. Opinion of the Justices, 264 Ala. 452, 88 So.2d 778 (1956).

Therefore, we respectfully decline to respond to the advisory opinion request.

Respectfully submitted,

C. C. TORBERT, Chief Justice JAMES N. BLOODWORTH

HUGH MADDOX

JAMES H. FAULKNER

RENEAU P. ALMON

JANIE L. SHORES

ERIC EMBRY

SAM A. BEATTY

Justices


text:
    OPINION OF THE JUSTICES.
    No. 232.
    Supreme Court of Alabama.
    March 3, 1977.
   The Senate of the Legislature of Alabama in its 1977 Regular Session adopted the following Resolution:

SR 271 REQUESTING AN ADVISORY OPINION OF THE JUSTICES OF THE SUPREME COURT RELATIVE TO THE TERMINATION OF THE DEPARTMENT AND BOARD OF YOUTH SERVICES.

WHEREAS, Alabama SJR 72 from the Sunset Committee will be presented to the Alabama Senate on the 10th Legislative day; and

WHEREAS, Act No. 512, Regular Session 1976, provides for definite “termination dates” for all state agencies as defined in said Act, and including the Department and Board of Youth Services; and

WHEREAS, October 1,1978, is the termination date designated for “any state agency” existing on the date of the passage of this Act (512) and not specifically listed under Section 3 of Act 512; and

WHEREAS, the Department and Board of Youth Services is not specifically listed for termination in Act 512 and is omitted from said Act; and

WHEREAS, a controversy has arisen as to whether or not the Department and Board of Youth Services can be considered for termination during the current session of the legislature.

NOW THEREFORE BE IT RESOLVED BY THE SENATE OF ALABAMA, That the following question be submitted under Title 13, Section 34, Code of Alabama to the Supreme Court of Alabama for an advisory opinion:

1. “Can the resolution, viz., SJR 72, terminating the Department and Board of Youth Services be considered and voted upon during the 1977 Regular Session of the Legislature?”

RESOLVED FURTHER, That the Secretary of the Senate transmit forthwith upon the passage of this resolution nine copies of the resolution along with nine copies of Act 512 and SJR 72 to the Supreme Court.

ANSWER TO QUESTION DECLINED.

To the Members of the Senate

State Capitol

Montgomery, Alabama 36130

Gentlemen:

We are in receipt of Senate Resolution No. 271 by Senator Owens dated March 3, 1977, which requests our opinion as to the following question:

“ ‘Can the resolution, viz., SJR 72, terminating the Department and Board of Youth Services be considered and voted upon during the 1977 Regular Session of the Legislature?’ ”

Because Title 13, § 34, Alabama Code, limits our authority to render advisory opinions to matters involving important constitutional questions, and further, because we cannot answer questions relating to legislation already in effect, all as set out in the response to Senate Resolution No. 257, submitted this date, we must respectfully decline to answer the question presented to us.

Respectfully submitted,

C. C. TORBERT, Chief Justice

JAMES N. BLOODWORTH

HUGH MADDOX

JAMES H. FAULKNER

RENEAU P. ALMON

JANIE L. SHORES

Justices


author: BRADLEY, Judge.

text:
    In re Barbara YOUNG v. CITY OF HUNTSVILLE, Alabama, d/b/a Huntsville Hospital. Ex parte Barbara Young.
    Civ. 852.
    Court of Civil Appeals of Alabama.
    Dec. 8, 1976.
    Rehearing Denied Jan. 12, 1977.

      M. U. Griffin, Huntsville, for petitioner.
    Ford, Caldwell, Ford & Payne and Robert L. Hodges, Huntsville, for respondent.
   BRADLEY, Judge.

Barbara Young initiated this workmen’s compensation case by alleging in the Circuit Court of Madison County that she is totally and permanently disabled as a result of contracting bilateral thrombophlebitis during the course of her employment as a licensed practical nurse at the Huntsville Hospital, Huntsville, Alabama. She sought both compensation and medical expenses under Title 26, Section 313(34), Code of Alabama 1940 (Recomp.1958) (Supp.1973), and Title 26, Section 262 et seq., Code of Alabama 1940 (Recomp.1958). After a hearing the trial court denied petitioner all relief. This is the decision to be reviewed here.

Petitioner is a fifty-three year old woman who has worked most of her adult life at jobs requiring a great deal of standing or sitting. From sometime in 1965 until March 1972, she worked on the night shift at the Athens-Limestone Hospital as a practical nurse. In order to work on a day shift, petitioner left the Athens-Limestone Hospital on March 13, 1972. Her duties at Huntsville Hospital were the same as they had been before, primarily giving medication to patients and making beds. However, due to increased activity during the day, there was more medicine to administer and more beds to make; thus the work was more strenuous and required more standing and walking.

In June 1974, while engaged in her routine duties, petitioner noticed some redness in one of her ankles. She was not able to relate the condition to any particular activity or incident. Petitioner was treated for this condition by a resident at the hospital until October 23, 1974, when she was referred to Dr. John Howard Lary, Jr., who diagnosed her as having superficial phlebitis of the right lower leg. She continued to work and to receive treatment from Dr. Lary until November 11, 1974, at which time she ceased working upon the instruction of Dr. Lary.

Petitioner’s condition has steadily worsened since she has been unemployed. In March 1975 she was taken to the emergency room and admitted to the hospital for treatment for both superficial thrombophlebitis and deep vein thrombophlebitis in both legs. In April 1975 Dr. Lary determined that petitioner is permanently and totally disabled from gainful employment, due to bilateral thrombophlebitis. He said the external cause of petitioner’s thrombophlebitis was her duties as a nurse, and that the condition could not have existed for more than three or four months prior to his examination of her in October 1974.

At the trial medical evidence was furnished by two doctors, Dr. Lary and Dr. James H. Rogers. Both testified that thrombophlebitis is a condition in which blood adheres to the wall of a vein, forming a clot, accompanied by inflammation of the surrounding area. Superficial thrombo-phlebitis refers to the condition in the veins just beneath the surface of the skin; deep vein thrombophlebitis refers to the condition when the veins affected aré deeper. A blood clot may form when the wall of a vein has been irritated, or when the flow of blood from the heart through the venous system is sufficiently slowed. Prolonged sitting or standing can cause the flow of blood to slow so that the condition develops. Some people are more susceptible than others to thrombophlebitis; thus, one person could contract the disease where another under the same circumstances would not.

Petitioner presents six issues for us to decide. The first three question whether there is any legal evidence to support the trial court’s finding: (1) that petitioner’s thrombophlebitis is not an occupational disease as defined in Title 26, Section 313(34), Code of Alabama 1940 (Recomp.1958); (2) that petitioner did not suffer an aggravation of a preexisting condition as envisioned by Title 26, Section 313(34), Code of Alabama 1940 (Recomp.1958); and (3) that petitioner’s disability does not result from a compensable accident as contemplated by Title 26, Chapter 5, Article 2, Code of Alabama 1940. The fourth question is whether the trial court’s findings of fact and conclusions of law comply with Title 26, Section 304. The fifth issue raises the validity of the trial court’s allowing into evidence statistics on the incidence of thrombophlebitis as revealed by admissions to the Huntsville Hospital for several years prior to trial. The final issue is whether the trial court erred in overruling petitioner’s motion for summary judgment.

The standard of review in workmen’s compensation cases is whether there is any legal evidence to sustain the trial court’s finding or conclusion or judgment. Mobile Paint Manufacturing Co. v. Crowley, 56 Ala.App. 673, 325 So.2d 182 (1975); Glover v. Howell Plywood Co., 50 Ala.App. 22, 276 So.2d 608 (1973); Edwards v. City of Huntsville, 49 Ala.App. 498, 273 So.2d 475 (1973). Thus, the first issue to be decided by this court is whether there was any legal evidence to support the trial court’s finding that petitioner’s condition of thrombophle-bitis is not an “occupational disease” within the meaning of Title 26, Section 313(34), and that she did not suffer disablement caused by the contraction of an occupational disease as defined in that statute.

“Occupational disease” is defined in the cited statute as being:

“[A] disease arising out of and in the course of employment, . . . which is due to hazards in excess of those ordinarily incident to employment in general and is peculiar to the occupation in which the employee is engaged, but without regard to negligence or fault, if any, of the employer. A disease . . . shall be deemed an occupational disease only if caused by a hazard recognized as peculiar to a particular trade, process, occupation or employment as a direct result of exposure over a period of time to the normal working conditions of such trade, process, occupation or employment. The term ‘contraction of an occupational disease’ as used herein shall include any aggravation of such disease without regard to the employment in which the disease was contracted. . . . ”

Thus, to be occupational the disease must be (1) due to hazards in excess of those ordinarily incident to employment in general, and (2) peculiar to the occupation in which the employee is engaged.

In City of Tuscaloosa v. Howard, 55 Ala.App. 701, 318 So.2d 729 (1975), we stated what evidence an employee-plaintiff must show in order to establish that he or she has an occupational disease within the meaning of the statute. The disease must be directly caused by or result from exposure over a period of time to a hazard recognized as peculiar to the normal working conditions of the employee’s particular occupation. The disease must in fact be contracted from or aggravated by the nature of the employment, and the contraction or aggravation must arise out of and in the course of the employment. Finally, the disability claimed must result from the disease.

Neither of the two doctors who testified at trial stated that thrombophlebitis is prevalent in or peculiar to the nursing profession. Dr. Lary said in his opinion nurses have an increased risk of contracting the disease because of their prolonged standing or sitting, but that the risk is no greater than in any other job which requires the same amount of sitting or standing. Dr. Rogers said that thrombophlebitis does not seem to be more prevalent in one occupation than in another, as there is nothing about a nurse’s duties which make a nurse more susceptible to the disease than a truck driver, a store clerk, a secretary, or an assembly line worker. He personally had treated a person who held a Ph.D in education, several housewives, several persons in a postoperative stage, several persons taking oral contraceptive pills, and a nurse for thrombophlebitis. Petitioner maintains that thrombophlebitis does not have to be peculiar to the nursing profession in order for her to recover under the occupational disease statute.

The appellate courts of this state have not construed the term “peculiar to the occupation” contained in the statute. Dicta in the Howard case, supra, could be mistaken to establish a definition requiring that the hazard giving rise to the disease be found only within the employee’s occupation and in no other. This court did not intend such a restrictive definition. It is a well established policy of this state that the workmen’s compensation act is to be liberally construed to accomplish its beneficent purposes; Gilmore v. Rust Engineering Co., 289 Ala. 46, 265 So.2d 591 (1972) and cases cited. To require that the disease originate exclusively from the particular kind of employment in which the employee-plaintiff is engaged would severely limit recovery under the occupational disease statute and contravene the remedial legislative purpose.

Courts in other jurisdictions have rejected such a restrictive interpretation of the term “peculiar to the occupation.” The Connecticut court defined the phrase, as used in its statute, to mean that:

“ . . . the conditions of [the] employment must result in a hazard which distinguishes it in character from the general run of occupations.” Glodenis v. American Brass Co., 118 Conn. 29, 40, 170 A. 146, 150 (1934).

This definition has been adopted by the courts of Michigan, Underwood v. National Motor Castings Division, 329 Mich. 273, 45 N.W.2d 286 (1951), and Minnesota, Gray v. City of St. Paul, 250 Minn. 220, 84 N.W.2d 606 (1957).

Applying the construction to the definition in our statute, we think that in order for a disease to be occupational it must be due to hazards which are (1) in excess of those ordinarily incident to employment in general and (2) different in character from those found in the general run of occupations. To state the matter succinctly, the plaintiff must be exposed by his or her employment to the risk causing the disease in a measurably greater degree and in a substantially different manner than are persons in employment generally.

In the case at bar there was sufficient evidence before the trial court for it to find that persons in employment generally, and even unemployed persons, are exposed to the risk of contracting thrombo-phlebitis, and therefore that thrombophlebi-tis is not caused by hazards in excess of those ordinarily incident to employment in general and peculiar to the nursing profession. In addition to the doctors' testimony, Dr. Benjamin C. Johnston, a rehabilitative psychologist who works as a consultant for the Social Security Administration at its disability hearings, testified that in the past two years he had had contact with sixty cases involving thrombophlebitis. In none of those cases were the petitioners nurses.

Petitioner’s lawyer even stated at trial:
“We don’t contend that phlebitis is a disease which is exclusively contracted by nurses nor that it is unique to nurses. Of course, we are well aware that there are many people, of many occupations in life who contract thrombophlebitis or phlebitis and we are also well aware that there are many unemployed people who contract it, too. . . . ”

Consequently we conclude that there was legal evidence to support the trial court’s finding that petitioner’s thrombophlebitis is not an occupational disease.

Title 26, Section 313(34) also provides:
“The term ‘contraction of an occupational disease’ as used herein shall .include any aggravation of such disease without regard to the employment in which the disease was contracted.”

Petitioner claims she falls within this provision of the statute in that she had a preexisting susceptibility to thrombophlebitis, due to a proven long history of varicose veins. She claims that aggravation of the varicose veins caused the thrombophlebitis.

Again, there is legal evidence in the record to support the trial court’s finding that petitioner’s disease of thrombophlebitis was not due to aggravation of a preexisting condition. Petitioner’s own doctor testified that there is no established causal connection between thrombophlebitis and varicose veins. Although a person with varicose veins might have a slightly increased incidence of superficial thrombophlebitis, most people with varicose veins do not have the latter disease. Furthermore, there was testimony that walking, one activity required by petitioner’s job and of which she complains, aids in the treatment of early stages of thrombophlebitis because it tends to speed the flow of blood through the circulatory system, thereby preventing stagnation in the lower extremities.

Petitioner’s third contention, that there is no legal evidence to support the trial court’s finding that petitioner did not suffer a compensable accident as contemplated by Title 26, Chapter 5, Article 2, supra, is equally without foundation. This court in the Howard case, supra, traced the history of the term “accident” as used in Article 2, supra, and pointed out that in the early existence of the statute the courts required that the injury be traceable to an event which happened suddenly and violently and was of unusual nature and foreign to the usual occurrences on that job. Howard then noted that more recently the term “accident” has been construed in the context of the effect rather than the event; there is an accident if the result was unexpected and unforeseen and it was caused by the job. The test is:

“If in the performance of the duties for which he is employed an employee is exposed to a danger or risk materially in excess of that to which people not so employed are exposed, and an injury occurs, such injury may legally be determined to have arisen from his employment and be an accident under the statute. . . . ” 55 Ala.App. at 705, 318
So.2d at 732.

It was Dr. Lary’s opinion that nurses face an increased risk of incurring thrombo-phlebitis. However, as already discussed, there was other evidence before the court that the hazard of incurring the disease in the nursing profession is not materially in excess of that to which people not so employed are exposed. Where testimony in workmen’s compensation proceedings is conflicting, and there is testimony supporting the trial court’s finding, such finding is conclusive. Davis-Day Timber Co. v. Gentry, 54 Ala.App. 385, 309 So.2d 97 (1975). Consequently, we conclude that the trial court’s finding on this aspect of the case is supported by legal evidence.

Petitioner’s fourth contention is that the trial eourt failed to make sufficient “findings of fact and conclusions of law” as required by Title 26, Section 304, Code of Alabama 1940 (Recomp.1958), and that such failure requires reversal. It appears that petitioner is saying that the trial court failed to make findings on issues raised at trial, specifically her susceptibility to the disease, the aggravation of an occupational disease, and the aggravation of a nonoccupational preexisting disease. Petitioner maintains that Pinkney v. James B. Clow & Sons, Inc., 277 Ala. 648, 173 So.2d 811 (1965), compels reversal where the trial court fails to determine an issue raised by the pleadings.

Although petitioner correctly states the Pinkney decision, there is no merit to her complaint. The pleadings filed by petitioner raised the issue of disability due to an occupational disease and an accident. The trial court made specific findings of fact and conclusions of law as to these issues. The five distinctions made by petitioner in brief of these issues are not, so far as we can determine, supported by the record before us. We find no error here.

The fifth issue raised by petitioner is that the trial court erred in admitting testimony of Paul B. Miller, medical records director for the Huntsville Hospital, relating to statistics extracted from the business records of the hospital and compiled by the hospital for trial. The evidence was taken from a computer printout showing the number of patients treated at the Huntsville Hospital for thrombophlebitis categorized by occupation.

In a workmen’s compensation case the appellate court reviews the judgment of the trial court by writ of certiorari, i. e., the reviewing court will look to see if there are errors of law apparent from the face of the record and will only be concerned with whether or not there is legal evidence to support the findings of fact. Boatwright v. Dothan Aviation Corp., 278 Ala. 142, 176 So.2d 500 (1965). The appellate court will not review technical questions regarding the trial court’s rulings on objections to the admission of evidence. Houser v. Young, 247 Ala. 562, 25 So.2d 421 (1946); Sloss-Sheffield Steel & Iron Co. v. House, 217 Ala. 422, 116 So. 167 (1928). The reason for appellate restraint, given in Woodward Iron Co. v. Bradford, 206 Ala. 447, 90 So. 803 (1921), is that there is no statutory provision for setting out the trial court’s rulings on admissibility in the findings of the trial judge and therefore these rulings are not part of the record. Thus, we do not reach the question raised by petitioner.

Finally, petitioner claims that the trial court erred in overruling her motion for summary judgment.

A motion for summary judgment may be granted only when there is no genuine issue as to any material fact, and the moving party is entitled to judgment as a matter of law. Rule 56, ARCP; Birmingham Television Corp. v. Water Works, 292 Ala. 147, 290 So.2d 636 (1974). In the case at bar the pleadings and evidence on file at the time the summary judgment motion was filed shows that a genuine issue of material fact was presented for resolution by the trial court; therefore, the motion was properly overruled.

No reversible error having been argued, the trial court’s judgment is affirmed.

AFFIRMED.

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


author: BEATTY, Justice.

text:
    Ex parte Barbara YOUNG.
    SC 2341.
    Supreme Court of Alabama.
    March 11, 1977.
   BEATTY, Justice.

WRIT DENIED.

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


author: WRIGHT, Presiding Judge.

text:
    Josephine J. ARATA v. MARTIN-PRINE ENTERTAINMENT, INC., et al. Clyde H. Smith, Intervenor.
    Civ. 966.
    Court of Civil Appeals of Alabama.
    Feb. 23, 1977.
    William H. Saliba, Mobile, for appellant.
    Chase R. Laurendine, Mobile, for Clyde H. Smith.
   WRIGHT, Presiding Judge.

This appeal is from the dismissal of a counterclaim and from a summary judgment in favor of the intervening claimant in the attachment of a boat. We reverse and remand.

Josephine Arata leased premises known as the Showboat Club on Battleship Causeway to Martin-Prine Entertainment, Inc., with Walter Martin and Timothy Prine as sureties on the lease. When they were two months in default on the rent, Mrs. Arata ordered them to leave. Various items owned by Mrs. Arata were also taken when they departed. Mrs. Arata instituted this action to recover $2,060 due on the lease and $4,000 for the conversion of her property-

Service was effected upon Martin but Prine could not be found for personal service of process. On the ground that Prine owed a debt and was a non-resident of Alabama Mrs. Arata secured attachment of a 24-foot Mercruiser “Reynell” boat on September 12, 1975. Legal publication of the levy did not prompt an answer by Prine.

On May 12, 1976, Clyde Smith was permitted to intervene claiming ownership of the boat and seeking damages for the detention of his property.

Mrs. Arata denied the claim and filed a counterclaim seeking to have the boat assessed at a value of $10,000 and impose judgment on Smith for the $4,000 deficiency; asking that any sale of the boat by Prine be voided because it was in fraud of the rights of a creditor; and seeking $100,-000 damages for a conspiracy between Smith and Prine to transfer the boat and defraud a creditor.

Smith moved for summary judgment upon his claim of title to the attached property and for dismissal of Mrs. Arata’s counterclaim. After considering a deposition by Mrs. Arata, an affidavit by Smith, an affidavit by Kathleen English, the pleadings and hearing oral argument, the trial court granted both motions. Mrs. Arata’s motion to set aside the summary judgment was denied. She appealed.

Smith moved to dismiss the appeal for absence of direction of a final judgment as required by Rule 54(b) ARCP. This court informed counsel that the motion to dismiss would be granted unless the trial court directed entry of a final judgment.

In response, Mrs. Arata filed with this court a motion to suspend the appeal so that the trial court could be requested to take newly discovered evidence and reconsider its judgment. This court suspended its rules under Rule 2(b) ARAP.

After the motion for reconsideration with affidavit as to new evidence was heard and denied by the trial court, the appeal proceeded. We denied the motion of Smith to dismiss the appeal. The trial court, though refusing to set aside the summary judgment, did direct it be made final according to Rule 54(b). The judgment was then appealable.

The record after the appealable judgment was entered contained the affidavit of one Cox, in addition to those submitted in support of and in opposition to the original summary judgment, Without setting out the matters contained in the original affidavits, we agree with the trial court that they presented no material issue of fact contrary to the title of Smith to the attached property. Summary judgment was originally proper. However, the affidavit of Cox, submitted on the motion and hearing for reconsideration, did contain facts which traversed the claim of title presented by Smith.

It was the evidence of Smith that he had purchased the boat from Prine in December of 1974, and had paid him $6,000 for it. Cox stated in his affidavit that Prine still owned the boat in July or August of 1975, and that Smith and Prine discussed the sale of it in his presence at that time. Smith told Cox he was glad that he had not paid any money for the boat since it could not be located.

An issue of material fact, ownership of the boat, was presented by the affidavit of Cox. Summary judgment was then improper. Summary judgment shall be rendered only if the pleadings, depositions and affidavits show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Rule 56 ARCP; Folmer v. Montgomery Fair Co., 293 Ala. 686, 309 So.2d 818 (1975).

The moving party must clearly show the other party could not recover under any discernible circumstances and the absence of a genuine issue as to any material fact. Loveless v. Graddick, 295 Ala. 142, 325 So.2d 137 (1975).

When the factual allegations in pleadings of the party opposing the motion for summary judgment are supported by affidavits or other evidentiary material, they must be taken as true in ruling on the-motion. Rainey v. Ford Motor Credit Co., 294 Ala. 139, 313 So.2d 179 (1975).

On motion for summary judgment the court does not try issues of fact but determines whether there are issues to be tried. McLaughlin v. McLaughlin, 53 Ala.App. 545, 302 So.2d 233 (1974).

We find no error in the dismissal of the counterclaims of plaintiff. Dismissal was granted on motion asserting that the pleading failed to state a claim upon which relief could be granted. The affidavits of both parties were before the court. The motion was therefore treated as a motion for summary judgment. Rule 12(b), ARCP. There was nothing presented by Mrs. Arata which raised any genuine issue of fact as to the matters stated in her counterclaims. Summary judgment was properly entered for Smith as to each counterclaim.

The record reveals that Prine was personally served with summons and complaint since the taking of this appeal. The effect of such personal service upon the attachment of the boat, whether the property of Prine or of Smith, is not before us on this appeal. However, the statute provides for abatement of ancillary attachments in certain instances. Title 7, Sec. 885, Code of Alabama (1940). Possible future abatement of the attachment does not render the issue before us moot.

For error, related herein, the judgment below is affirmed in part, reversed in part and remanded.

AFFIRMED IN PART, REVERSED IN PART AND REMANDED.

BRADLEY and HOLMES, JJ., concur.


author: CATES, Presiding Judge. CATES, Judge.

text:
    Michael Wayne MITCHELL v. STATE.
    6 Div. 51.
    Court of Criminal Appeals of Alabama.
    On Rehearing Jan. 4, 1977.
    Rehearing Denied Feb. 1, 1977.
    Carleton P. Ketcham, Jr., Birmingham, for appellant.

      William J. Baxley, Atty. Gen. and Randolph P. Reaves, Asst. Atty. Gen., for the State, appellee.
   CATES, Presiding Judge.

Under Code 1940, T. 13, § 66, judgment below is affirmed without opinion.

AFFIRMED.

All the Judges concur.

ON REHEARING

CATES, Judge.

Obedient to the mandate of Code 1940, T. 13, § 66, and cognizant that long opinions on settled law represent a hidden tax on the lawyers who subscribe to the official and Southern Reporter, on August 24, 1976, we affirmed — after review under T. 15, § 389— the judgment of conviction without opinion.

Under Rule 39(k) ARAP as explicated in Ex parte Phelps v. State, Ala., 339 So.2d 124 (1976), we are asked to accept the following as a fair statement of facts:

“In the early evening of October 17,1974, Mitchell, his brother Roy Marshall Mitchell (hereinafter referred to as ‘Mitchell’s brother’), Mitchell’s wife and one Ralph Leslie Dye, Jr. set out from Irondale, Alabama in Dye’s car for the purpose of finding the estranged wife of Mitchell’s brother. (R. 23-25) The wife of Mitchell’s brother was apparently living in the West End section of Birmingham as this is the area to which they drove. (R. 24)

“Upon arriving in West End, the plan to find the wife of Mitchell’s brother was abandoned and the Mitchell brothers discussed going to the home of Robert Major Collins, Jr., the deceased. (R. 25) Mitchell’s brother and Collins had been close friends for several years and had gone around together. (R. 88, 96) (Sometime prior to this night, Collins had informed the police about some crime which Mitchell had allegedly committed.) (R. 25) During the ride one or both of the Mitchell brothers (it is not clear which) discussed going to the home of Collins for the purpose of pursuading him to drop charges (according to Mitchell (R. 88)) or for the purpose of ‘whupping him’ (according to Dye (R. 26)).

About 7:15 that evening Mitchell, Mitchell’s brother, Mitchell’s wife, and Dye arrived in Dye’s car at 628 Tenth Street Southwest, Birmingham, Alabama, the home of Robert Major Collins, Jr. (R. 30) A light was on in the Collins house and the front door was open. (R. 29) While Dye and Mitchell’s wife remained in the car, Mitchell’s brother, followed by Mitchell, left the car and walked to the front door of the Collins’ house. (R. 29, 30) Neither was carrying a weapon of any kind. (R. 36, 37, 49, 87, 88) Mitchell’s brother reached the front porch first and entered the open door. (R. 30) When Mitchell reached the door, he was told to come in by Collins. (R. 89, 90, 91) Upon entering, Mitchell saw his brother and Collins sitting on the edge of a table. (R. 90) As Mitchell approached, Collins brought up a gun from behind his leg. Mitchell’s brother grabbed Collins’ arm as he shot. (R. 89, 91, 92) Mitchell, believing his brother had been shot, went toward his brother and Collins. (R. 89) Collins then shot Mitchell twice, first in the stomach and then in the arm. (R. 89) Mitchell, his brother and Collins struggled for the gun, all three falling to the floor in the process. (R. 98) Collins then shot Mitchell a third time in the hand. (R. 89) By biting Collins on the hand, Mitchell got hold of the gun, and tried to get up. Collins and Mitchell continued to wrestle for the gun and the gun discharged, hitting Collins in the chest. (R. 89, 90, 99)

“Upon hearing the first shots, Dye, who had remained in his car, drove approximately one block, and turned into an alley which ran behind the Collins house. (R. 31, 32) About that time he heard a couple of more shots. (R. 33) Mitchell’s brother then ran out of the house and came to the car. (R. 34) Shortly thereafter Mitchell came out of the house and, being weakened from his multiple wounds, fell down in the yard. (R. 34) Mitchell’s brother left the car, picked up Mitchell, and carried him to the car. Dye drove Mitchell to the West End Baptist Hospital and left him. (R. 35, 36)

“After exiting from the hospital, Mitchell’s brother showed Dye a gun. Mitchell’s brother threw the gun into an alley near the hospital. (R. 36, 37) The gun was subsequently recovered by police and a ballistics test showed that the fatal shot came from this gun (R. 9); it was Collins’ gun.

“When the police arrived at the scene they found Robert Major Collins, Jr., lying in the front yard. (R. 80) He had a bullet wound in the chest (R. 82), a cut and a bruise on his face, and a bite mark on his chest. (R. 84) He was conscious. Before being taken to an ambulance, Collins told a policeman that the Mitchell brothers came to his house to get even with him, that a fight ensued, that he, Collins, got his gun and shot Mitchell and that the Mitchell brothers then got the gun and shot him. (R. 83) At another point in this conversation he said that it was Mitchell who had shot him. (R. 83) Collins was then taken from the scene in an ambulance and was pronounced dead on arrival at the hospital. (R. 8)

“An autopsy of Robert Major Collins, Jr. revealed that the cause of death was a gunshot wound to the chest. (R. 6) There were powder burns about the wound. (R. 5) The left eye of the deceased was blue and swollen and there were bite marks on the chest and on the back of his left hand. (R. 6)

“The incident occurred around 7:15 P.M. (R. 30) About 11:30 P.M. the same night, the brother of Robert Major Collins, Jr. came to the house and upon going to the front door found the lock pulled away from the door. (R. 17) That was the first time he had ever noticed the door being in such condition. (R. 19, 20)”

To the foregoing statement the State in its original brief rejected any imputation that the gun in the firing of the fatal shot was discharged accidentally.

Also, the ensuing delineation of evidence must be taken into consideration.

The deceased Collins gave a dying declaration. First, a hearing was had with the jury withdrawn. Compare Jackson v. Den-no, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908. Then the trial judge indicated that the State’s witness’s recital of Collins’ dying declaration was admissible. See Burton v. State, 39 Ala.App. 332, 101 So.2d 564, headnote 5.

The essence of the declaration was:
“Yes, sir, he said that Denny Mike [appellant] * * * he said Denny Mike and Marshall Mitchell came into his house to get even with him, they said, for setting them up for getting a bust for breaking into his house. And he said they were beating him up and he got his gun and shot Denny Mike and they got the gun and shot him.”

The appellant testified in his own behalf. On direct he deposed:

“ * * * I thought he [Collins] had shot my brother. I got closer and tried to break it up and the second and third shot hit me.
Q Where did the second shot hit you?
A The second hit my arm.
Q Where did the third shot hit you?
A The second hit my stomach, the third shot hit my arm.
Q All right. What happened next?
A Then I tried to get the gun of his hand. They was on the floor wrestling. I seen the gun laying out there in the open and I fell on his arm and pinned his arm to the ground and had hold of the gun, the barrel of the gun. He shot again. It went off in my hand, ripped my hand. I could not get away from him no other way so I decided to bite him. So I bit him on the hand. He let go of my arm and I got possession of the gun. I tried to get up. He reached and grabbed my arm and we was wrestling over the gun and it went off and I was still shot.
Q Do you remember what happened then?
A Yes sir, I got up and I tried to make it outside and started out of the house and I could not breathe, could not catch my breath, I felt myself weak so I fell on the front porch and my brother came running
On cross the questions and answers in part went:
“Q Was it [the gun] in your hand or his hand when it went off?
A I had the gun.
Q In your hand?
A Right.
Q Did you step back away from him and shoot him?
A No, sir, we were on the ground. I was trying to get up. He grabbed my arm trying to get the gun back.
Q And you shot him?
A No, sir, it went off fighting on the ground.
Q Did you cock the the hammer back on it?
A No, sir.
Q You just had your finger around it, didn’t you?
A All I know, I had hold of the gun when he grabbed for it.”
if: * * * * *
“Q How long did you have to bite his hand before he turned loose of the gun?
A Five minutes, I guess, maybe two.
Q Three to five minutes?
A He wasn’t going to let go of the gun. He was trying to shoot the last shot, I guess. I was trying to get it out of his hand.
Q Did he ever shoot the gun while you had his hand in your mouth for five minutes?
A He shot it when I got hold of the barrel.
Q I am talking about when you had his hand in your mouth, did he ever shoot?
A While I was biting his hand, no sir.
Q You had his hand five minutes?
A Three minutes. He couldn’t have.
Q He could have shot it?
A No, sir, he could not have.
Q Had it in his hand?
A Had his arm pinned to the ground with both hands.
Q He had his finger in the trigger?
A No, sir, I had done prized it loose.” ******
“Q He was shot in the left side? Do you recognize that bite mark on his left hand?
A Yes, sir, I know I bit him on the hand.
Q Is that the hand you bit him on?
A It could have been. I know I bit him on one of his hands.
Q That was the left hand, right there?
A I don’t know which hand I bit him on.
Q You can look at that body and tell whether it is right or left?
A Yes, sir.
Q Which hand is it?
A It is left.
Q He did not have the gun in his left hand, did he?
A I do not know which hand. I know I bit one of his hands.
Q I offer State’s Exhibit 10 into evidence.

THE COURT: There being no objection, it is in.

(WHEREUPON, said exhibit previously marked State’s Exhibit 10, for identification, was marked in evidence by the court reporter.)

Q I would like for you to look at State’s Exhibit 2. Can you tell if that is Bobby?
A Sir?
Q Can you tell if that is Bobby?
A By his beard, maybe. It looks like him.
Q Do you recognize those bite marks on him?
A Yes, sir.
Q Can you tell better from that picture which hand it is? The left hand?
A Yes, sir.
Q He never had the gun in his left hand, did he?
A Yes, sir, that is the hand he had the gun in.
Q Well, you said earlier he was sitting on a table like this; your brother was sitting here; he reached out and pulled out the pistol and shot at you and your brother grabbed his hand; from there you all struggled until you bit his hand and took the gun out of it and that was the right hand, wasn’t it?
A The hand that was bit was the one he had the gun in.
Q When, during the struggle, did he change hands and put the gun from one hand into the other hand?
A I do not know whether it was his right or his left. I do know which hand the gun was in.
Q Well, you testified earlier you remembered—
A I said I think it was in his right hand.
Q He never changed hands? He never put the gun from one hand into the other hand, did he?
A I did not see it if he did.
Q And he did not have a gun in his hand when you bit him, did he?
A Yes, sir, he did.”
“Q How long had you had the gun in your hand before you shot Bobby?
A A couple of seconds before he — right as I got it. He was fighting for it back.
Q Were you standing up or lying down?
A I was on the floor on his arm when I got the gun.
Q Which arm were you on?
A Sir?
Q Which arm were you on?
A I do not even remember.
Q And you had already been shot in the stomach when you got the gun away from him?
A Yes, sir.
Q Was he lying down when you shot him?
A Sir?
Q Was he lying down or standing up when you shot him?
A We were both on the ground.
Q Was your brother on top of him, too?
A No, sir, he was over on the floor somewhere. I do not remember seeing him.
Q Was he lying beside him or on top of him or what?
A He could have been on top of him.
Q You do not remember?
A I do not know.
Q Did you know whether or not your brother was in the line of fire when you shot?
A No, sir.
Q You put the gun right up close to him, didn’t you?
A I had the gun and he was fighting for it back and all I know was it went off.
Q When he was fighting for the gun back, you had it right up against his chest, didn’t you?
A I was on the ground on top of his arm.
Q Did you have the gun sticking right up next to his body?
A No, sir.
Q How far away from it was it?
A I guess a foot or so.
Q A foot or so?
A Yes, sir.
Q Well, did you see powder burns on his jacket? On his body?
A I did not even know he was shot.”

Exhibits 2 and 10, colored photographs, clearly show the fatal wound went into the rib cage (between the seventh and eighth ribs) on the rearward left side of Collins’ body, the bullet ranging slightly upward, lodged in the tissue next to the tenth vertebra. For him to have had the gun in his (Collins’) left hand when he was shot would have involved a well high impossible contortion.

I

Our criminal homicide statutes Code 1940, T. 14, § 314 (murder), § 320 (manslaughter) when applied to §§ 317 and 318 (as to murder) and § 320, supra, and § 322, as to manslaughter confide the finding of degrees of guilt vel non and of punishment to the discretion of the jury.

In the case of instant concern the only step taken to raise the sufficiency of the evidence by trial counsel (who is not representing Mitchell on appeal) was to move, at the close of the prosecution’s case, to exclude the evidence. We consider that there was enough proof to let the case go to the jury.

No exception was taken to the oral charge, no written affirmative charges of acquittal were offered as to any of the four grades of homicide. Williams v. State, 18 Ala.App. 438, 93 So. 55, does not apply.

Malice aforethought is an indispensable ingredient of common law, i. e., statutory second degree murder. Mitchell v. State, 60 Ala. 26. Evidentiary rules permit an inference of a killer’s being in the grip of malice when he intentionally uses a deadly weapon unless the evidence refutes the presumption. The presumption shifts the burden of persuasion to the defendant, that is, it makes a prima facie proof of malice by the prosecution. Allred v. State, 55 Ala.App. 74, 313 So.2d 195. See also, Hornsby v. State, 94 Ala. 55, 10 So. 522.

Under Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508, the reasonable doubt standard of In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368, requires the prosecution to prove beyond a reasonable doubt that the killing was not done in “heat of passion.” In other words, after there is a prima facie case of murder there is no burden on the defendant to prove the killing was manslaughter, i. e., without malice. No ruling in the trial court could have been cited as to this principle because nowhere in the charge to the jury was there any hint that the defendant was required to “tone down” an apparent murder to manslaughter. See Stone, J., in Mitchell v. State, 60 Ala. 26, 32.

We consider the evidence was enough to allow the jury to determine the degree of guilt, if any, or excuse from self defense. Essentially the question boiled down to whether the defendant in concert with his brother, or alone, shot a disarmed man in the latter’s home, or was Collins still a menance to Mitchell’s life in a cul de sac from which he, Mitchell, could not retreat. We note the State adduced proof from which the jury might infer that Mitchell and his brother went to Collins’ home to “whip up” on him. Basically, it was all a question of fact and intent: the jury is and has to be sovereign. Curtis, The Trial Judge and the Jury, 5 Vand.L.R. 150 (1952).

The affirmance will stand; the application for rehearing is overruled.

OPINION DELIVERED; APPLICATION OVERRULED.

All the Judges concur.

      . See Anno. 73 A.L. ..2d 769 at 811 and 12.

        . “ * * * When an assault is made on a sudden quarrel, and a mutual combat ensues, retreat, if possible, to avoid the threatened danger, is a duty. For, as was said in Comm. v. Drum, 58 Penn.St. [1] 9: ‘when it comes to a question whether one man shall flee, or another shall live, the law decides that the former shall flee rather than the latter shall die.’ — Eiland v. State, 52 Ala. 332; Pierson v. State, 12 Ala. 149. There may be cases of murderous assault, or of assault with intent to commit other atrocious felonies, from which it is not the duty of him who is assailed to retreat, or employ any other effort to avoid taking life. But in all cases of sudden combat, to establish excusable homicide in self-defense, it must appear that the party killing had retreated; had made real effort to avoid the necessity of taking life. * * * ” — Sullivan v. State, 102 Ala. 135, p. 143, 15 So. 264, p. 267


author: EMBRY, Justice.

text:
    Ex parte Michael Wayne MITCHELL.
    SC 2368.
    Supreme Court of Alabama.
    March 11, 1977.
   EMBRY, Justice.

WRIT DENIED.

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