text:
    Vergie CARTER v. CALHOUN COUNTY BOARD OF EDUCATION et al.
    SC 2175.
    Supreme Court of Alabama.
    May 6, 1977.
    Betty C. Love of Love, Love, Lawrence & Burton, Talladega, for appellant.
    H. R. Burnham and William Henry Agee of Burnham, Klinefelter, Halsey & Love, Anniston, for appellees.
   SHORES, Justice.

This appeal presents a single question: did the trial court err in granting the defendants’ motion to dismiss Count Two of the plaintiff’s complaint which alleged the following:

“1. On a date prior to March 7, 1975, Plaintiff entered into an agreement with defendants, hereinabove named, whereby the Plaintiff was employed to work in the lunchroom of Walter Wellborn School in Calhoun County, Alabama.
“2. Under the terms of said agreement, the defendants, hereinabove named, expressly or impliedly promised to furnish the plaintiff with a reasonably safe place in which to work.
“3. On or about March 7, 1975, plaintiff fell to the floor of the lunchroom of Walter Wellborn School, while acting in the service of said Defendants, and suffered the following injuries and damages:
“Plaintiff realleges the injuries and damages set out in Count One, paragraph 1, of this complaint [allegation of injuries suffered].
“4. Said injuries and damages were proximately caused by the breach of the terms of the contract described in paragraphs 1 and 2 of this count by the defendants, in failing to provide the plaintiff with a reasonably safe place in which to work.
“5. Plaintiff realleges paragraph 3 of Count One [judgment demand].”

The plaintiff is Mrs. Vergie Carter; and the defendants are the Calhoun County Board of Education, et al. Mrs. Carter appealed from the order granting the motion to dismiss Count Two.

Plaintiff concedes in brief that the allegations of Count Two of the complaint that the Board . . ‘expressly’ . promised to furnish plaintiff a reasonably safe place in which to work.” are not advanced by the plaintiff as grounds for reversal. It is her contention that the allegation of an implied promise to furnish a reasonably safe place to work is a sufficient allegation of an action based upon breach of an implied contract to withstand a motion to dismiss.

As has been said so often, Rule 8, ARCP, is complied with if the complaint gives the defendant “. . . fair notice of what the plaintiff’s claim is and the grounds upon which it rests.” Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957). In pleading an action on a contract implied in fact, the allegations must show the facts and circumstances from which the agreement can be inferred. Wright & Miller, Federal Practice and Procedure: Civil § 1235; Berry v. Druid City Hospital Board, Ala., 333 So.2d 796 (1976).

In Sims v. Etowah County Board of Education, Ala., 337 So.2d 1310, 1312 (1976), the allegations were:

“ ‘2. That the plaintiff and her husband did pay a sum of money to the defendants to purchase a ticket to witness said football game and the defendant did impliedly contract to furnish to the plaintiff a safe and proper place from which she could observe said football game.
“ ‘3. The defendants breached said contract ... in that the football stands upon which she was seated were not fit and proper for use as football stands and collapsed during said football game, causing the plaintiff to suffer personal injury and damages.’ ”

The court, referring to these allegations, said:

“It will be noted that these contract counts alleged an implied contract to furnish a safe and proper place from which to observe the game and that the defendants breached that contract because the football stands upon which she was seated were not fit and proper for that use, and collapsed. This allegation appears to us to charge the breach of an implied agreement to furnish a proper place from which to safely observe the game . Plaintiffs have stated a contract, albeit an implied one, and its breach sufficiently to comply with ARCP 8(a), 1 Lyons, Alabama Practice, § 8.3 (1973), and if the defendant is otherwise amenable to suit, the motion to dismiss was improperly granted.” (337 So.2d at 1313)

We think Sims, supra, is disposi-tive of the case here. The complaint in the instant case alleges that the defendants impliedly promised to furnish a safe and proper place for the plaintiff to do her work and that the defendants breached that contract. True, the allegations do not specify with particularity the manner by which the defendants failed to provide a reasonably safe place for the plaintiff to perform her part of the contract; but we do not think the rules require such particularity, so long as the allegations sufficiently inform the defendants of what the plaintiff’s claim is and the grounds upon which it is based. Although the breach of the implied agreement is only minimally alleged, we believe the spirit of the rules requires that the plaintiff be given an opportunity to proceed with her claim; and if she is able to present evidence from which the jury could find that the parties to this litigation did assent to an implied agreement, and that the defendants breached that agreement, resulting in the plaintiff’s injuries, she is entitled to have a jury pass on that issue. Obviously, the plaintiff has the burden of proving that the defendants did impliedly promise to furnish her a safe place in which to work, and that they breached that agreement.

As was first stated in Conley v. Gibson, supra, and thereafter often restated:

“. . .In appraising the sufficiency of the complaint we follow, of course, the accepted rule that a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. . . . ” (355 U.S. at 45, 46, 78 S.Ct. at 102.)

This court has followed this rule in a number of cases. Watwood v. R. R. Dawson Bridge Co., Inc., 293 Ala. 578, 307 So.2d 692 (1975); Bowling v. Pow, 293 Ala. 178, 301 So.2d 55 (1974).

The judgment granting the motion to dismiss is reversed and the cause remanded.

REVERSED AND REMANDED.

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


source: Caselaw Access Project

license: Public Domain

text:
    OPINION OF THE JUSTICES.
    No. 237.
    Supreme Court of Alabama.
    May 16, 1977.
   To the Members of the

House of Representatives

State Capitol

Montgomery, Alabama 36130

Dear Sirs and Madam:

We acknowledge receipt of Senate Bill No. 422 concerning the authorization of the Governor, by Executive Order, to freeze or roll back utility rates established by the Alabama Public Service Commission.

After considering this request, we respectfully point out that this Court is restricted from issuing advisory opinions on legislation that has already been enacted by the legislature. Opinion of the Justices, 264 Ala. 452, 88 So.2d 778 (1956). We take note that Senate Bill No. 422 has been enacted by the legislature and sent to the Governor for his signature.

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

Respectfully submitted,

C. C. TORBERT, JR., Chief Justice

JAMES N. BLOODWORTH

HUGH MADDOX

JAMES H. FAULKNER

RENEAU P. ALMON

JANIE L. SHORES

ERIC EMBRY

SAM A. BEATTY

Associate Justices


text:
    OPINION OF THE JUSTICES.
    No. 238.
    Supreme Court of Alabama.
    May 16, 1977.
   The Honorable George C. Wallace

Governor of Alabama

State Capitol

Montgomery, Alabama 36130

Dear Sir:

We acknowledge receipt of your request for an advisory opinion upon the constitutionality of Senate Bill No. 422, which follows:

SYNOPSIS: This bill vests power in the Governor to freeze or roll back utility rates established by the Alabama Public Service Commission for up to one year.

A BILL

TO BE ENTITLED

AN ACT

To authorize the Governor, by Executive Order, to freeze at the present level or to roll back to any level existing at any time during the six month period immediately preceding said Executive Order, any utility rate or rates established by the Alabama Public Service Commission for a period of up to one year.

BE IT ENACTED BY THE LEGISLATURE OF ALABAMA:

Section 1. The Governor of Alabama shall, at any time when in his considered opinion extraordinary action in the matter of utility rates is called for, by Executive Order freeze a utility rate or rates, established by the Alabama Public Service Commission, at the then existing level or may roll said rate or rates back to any level existing at any time during the six month period immediately preceding said Executive Order for a period not to exceed one year in duration. Provided, however, that the provisions of this Act shall apply only to those utility companies regulated by the Alabama Public Service Commission.

Section 2. The term utility as used herein shall not include railroads or companies providing telephone or communications services.

Section 3. This Act shall become effective immediately upon its passage and approval by the Governor, or upon its otherwise becoming a law.

You have certified three constitutional questions for our consideration and which we consider seriatim:

(1) Does Section 1 of Senate Bill 422 conflict with the due process provisions of Article 1, Section 6 and 13, of the Constitution of Alabama of 1901?

We pretermit any consideration of the applicability of Article 1, Section 6 to Senate Bill No. 422 in view of our finding that the Bill offends Section 13.

Section 13 requires:

That all courts shall be open; and that every person, for any injury done him, in his lands, goods, person, or reputation, shall have a remedy by due process of law; and right and justice shall be administered without sale, denial, or delay.

Due process of law means notice, a hearing on the merits of the controversy in accord with that notice, and a judgment entered in accord with that notice and hearing. Ex parte Rice, 265 Ala. 454, 92 So.2d 16 (1957); McCollum v. Birmingham Post Company, 259 Ala. 88, 65 So.2d 689 (1953). It offers protection against arbitrary conclusions by requiring a fair hearing, and findings supported by evidence. City of Birmingham v. Southern Bell Telephone Company, 234 Ala. 526, 176 So. 301 (1937). As was stated by this Court in Alabama Public Service Commission v. Southern Bell Tel. & Tel. Co., 253 Ala. 1, 42 So.2d 655 (1949):

. When an order is based upon findings without evidence to support them, . . . the order is arbitrary as a matter of law and a denial of due process .

Senate Bill No. 422 provides for neither notice, hearing, nor standards under which the Governor’s “considered opinion” may be exercised. As this Court held in Mead v. Eagerton, 255 Ala. 66, 50 So.2d 253 (1951):

The legislature cannot confer upon any person or authority the right, in its discretion to be exercised without regard to fixed standards set up by the Act, to declare when an enactment shall become effective. .

Accordingly, this Bill is constitutionally invalid under Article 1, Section 13 of the Constitution of 1901.

(2) Does Section 1 of Senate Bill 422 conflict with the separation of powers provision of Article 3, Sections 42 and 43, of Constitution of Alabama of 1901 ?

Sections 42 and 43 of the Constitution of 1901 direct:

Section 42. The powers of the government of the State of Alabama shall be divided into three distinct departments, each of which shall be confided to a separate body of magistracy, to-wit: That which are legislative, to one; those which are executive, to another; and those which are judicial, to another.
Section 43. In the government of this State, except in the instances in this Constitution hereinafter expressly directed or permitted, the legislative department shall never exercise the executive and judicial powers, or either of them; the executive shall never exercise the legislative and judicial powers, or either of them; the judicial shall never exercise the legislative and executive powers, or either of them; to the end that it may be a government of laws and not of men.

It is clear that the power granted to the Governor by Senate Bill No. 422 is the power to fix utility rates. The power to fix such rates, however, lies with the legislature, City of Birmingham v. Southern Bell Telephone Company, supra, or as was observed in that case, in its duly constituted agency, such as the Public Service Commission. In that connection we are prompted to quote from that opinion in the context of our present concern:

. In either event, the courts are open for one who complains that by the exercise of the rate-making power he has been deprived of property without due process of law or that his private property has been taken for public use without just compensation. The courts act, therefore, for the purpose of holding the exercise of this legislative power within constitutional limits . . . but not for the purpose of making rates or substituting their judgment for that of the legislative agencies.

Because the courts are thus limited, the Executive is likewise limited for the obvious reason that he cannot be an agency of the Legislature under the separation of powers provisions of our Constitution. Such provisions have been characterized as

‘. . . fundamental concepts of our form of government, . . . [constituting] . . . foundation stones upon which the freedom, liberty, and rights of the citizens in the final analysis rest.’ [Oklahoma Cotton Ginners’ Ass'n v. State, 174 Okl. 243, 51 P.2d 327, quoted in City of Birmingham v. Southern Bell Tel. & Tel. Co., supra, 234 Ala. at 531, 176 So. at 304].

We find, therefore, that Senate Bill No. 422 violates Article 3, Sections 42 and 43 of the Constitution of 1901.

(3) Does Section 1 of Senate Bill 422 conflict with the suspension of the laws provision of Article 1, Section 21, of the Constitution of Alabama of 1901?

Article 1, Section 21, states:

That no power of suspending laws shall be exercised except by the Legislature.

Under Title 48, § 71, Alabama Code (Re-comp. 1958):

All rates . . . and orders establishing rules, regulations, practices, or services fixed by the commission shall be in force and shall be deemed prima facie reasonable and valid in any court

It is clear that the legislature has the power to authorize administrative officers and boards created by it to make necessary rules and regulations, and to give these the force of law. Title 48, § 23, Alabama Code; City of Birmingham v. Southern Bell Tel. & Tel. Co., 203 Ala. 251, 82 So. 519 (1910); Alabama Public Service Commission v. Mobile Gas Company, 213 Ala. 50, 104 So. 538 (1925). Because such rates possess the character of law, it follows that the power to freeze or roll back a rate is the power to suspend law.

While it is axiomatic that under our Constitution the power of the legislature is supreme in legislative matters, it is equally clear that the Constitution, by Section 21, has mandated that this power be reposed within the legislature itself. The legislature cannot authorize suspension of law by another agency, even where the legislature itself has the power to suspend the law. Montgomery v. State, 231 Ala. 1, 163 So. 365 (1935). The power to fix and regulate rates has been placed by the legislature in the Public Service Commission, Title 48, Article 2, §§ 17, 18, 28, Alabama Code. It does not appear that the legislature has abrogated the powers of that legislatively-created body which it has the constitutional power to do. But that is a matter which addresses itself to that body. Opinion of the Justices, 241 Ala. 416, 3 So.2d 50 (1941). The power to suspend having been vested exclusively in the legislature by the Constitution, a fortiorari it could not be delegated to the Governor in view of Section 43 of our Constitution. Montgomery v. State, supra.

Respectfully submitted,

C. C. TORBERT, JR., Chief Justice

JAMES N. BLOODWORTH

HUGH MADDOX

JAMES H. FAULKNER

RENEAU P. ALMON

JANIE L. SHORES

ERIC EMBRY

SAM A. BEATTY

Associate Justices


author: BRADLEY, Judge.

text:
    GARDENDALE SUBARU MOTORS, INC., et al. v. James E. FIELDS.
    Civ. 913.
    Court of Civil Appeals of Alabama.
    Sept. 8, 1976.
    Rehearing Denied Sept. 30, 1976.

      Phil Joiner, Birmingham, for appellant.
    Sirote, Permutt, Friend, Friedman, Held & Apolinsky and W. Frank Greenleaf, Birmingham, for appellee.
   BRADLEY, Judge.

The plaintiff, James E. Fields, filed a complaint in the Circuit Court of Jefferson County seeking damages in the amount of $50,000 from the defendants, Gardendale Subaru Motors, Inc., a corporation; Garden-dale Motors, Inc., a corporation; and Sam Raine and Walter Maddox, a partnership d/b/a Gardendale Motors, Inc. The complaint charged that the .defendants fraudulently represented that a 1972 Subaru station wagon automobile purchased by plaintiff was a demonstrator subject to a new car warranty and had never been sold, when, in fact, none of these representations were true. Defendants answered by denying the allegations of the complaint. Trial was had before the court and a jury and a verdict was returned in plaintiff’s favor for $3,300. Judgment was entered in conformity with the verdict.

Defendants’ motions for directed verdict and judgment n. o. v. were denied; a motion for new trial was granted conditionally. The trial court ordered a remittitur of $3,000, thereby reducing the judgment to $300; with a new trial to be held upon failure to remit. Plaintiff declined the re-mittitur and a new trial date was set.

The civil trial docket sheet and the minute entry reflect that on the day set for the new trial, i. e., January 5, 1976, the parties informed the court that they had agreed upon a settlement in the amount of $2,300 to be paid by defendants to plaintiff by noon January 7, 1976. It was further provided by agreement that should defendants fail to pay plaintiff said sum of money on the aforementioned date, the court was to enter a judgment against defendants and in favor of plaintiff for $3,300 and court costs.

On January 7, 1976 the records of the trial court reflect that the parties again appeared in court through their respective attorneys and informed the court that defendants had not paid the $2,300 to plaintiff. According to these same records the court, upon being informed that the settlement amount had not been paid, entered judgment for plaintiff and against defendants for the sum of $3,300 as previously agreed by the parties.

Sam Raine, one of the defendants, acting through his attorneys, filed a motion pursuant to Rule 60(b) ARCP, asking the court to set aside the $3,300 judgment for the reason that a mistake had been made in the amount of the judgment. This motion was overruled by the court on March 19, 1976.

Sam Raine then filed another motion which, in essence, was again a 60(b) motion. At the same time he also filed a motion asking the court to clarify and strike from the judgment of January 7, 1976 the defendants “Sam Raine and Walter Maddox, a partnership d/b/a Gardendale Motors, Inc.” As a basis for this motion Raine alleged that plaintiff could not designate a defendant as a corporation and partnership simultaneously. The court denied these two motions on April 19,1976; the appeal is from this action of the trial court.

Defendants argue in brief that they did not consent to the $3,300 judgment entered by the court on January 7, 1976, nor was there a written consent for the entry of such a judgment filed in the record; therefore the court erred in rendering such a judgment. They also say that the use of the words, “Sam Raine and Walter Maddox, a partnership d/b/a Gardendale Motors, Inc.” referred to the corporation and not to them individually or as a partnership, and, in fact, the words were really surplusage, for the real entity being sued was the corporation. They suggest error by the court in its refusal to change the judgment to reflect only the corporate entity as being the real defendant.

As to defendants’ first contention, the granting or refusal of a 60(b)(1) motion is discretionary with the trial court subject to review only for abuse thereof. Modernage Homes v. Wooldridge, 55 Ala.App. 68, 313 So.2d 190. We conclude in the present case that the trial court did not abuse its discretion in overruling the 60(b)(1) motion.

A judgment entry speaks absolute verity. Ex parte McDermott, 224 Ala. 684, 141 So. 659. And, such entry is the solemn recital of the court which is the basis for its judgment and is not self-correcting. Gossett v. Pratt, 250 Ala. 300, 34 So.2d 145.

In the case at bar the minute entry recites that the parties agreed to the entry of a judgment for $3,300 in favor of plaintiff in the event that a lesser amount was not paid by defendants. The minute entry further reflects that the smaller sum was not paid and a judgment for $3,300 was entered. The record contains no evidence in support of the 60(b)(1) motion to refute the pronouncements of the trial court’s minute entry. In that posture we have no alternative but to accept the recital in the minute entry that the parties consented for a judgment of $3,300 to be rendered against the defendants. The trial court did not abuse its discretion in overruling the 60(b)(1) motion.

As to defendants’ contention that the trial court erred in refusing to grant its motion to have the minute entry reflect that a judgment had been rendered only against the corporate entity and not against the partnership or the two individuals, we conclude that said motion was filed too late to be considered.

Rule 9(a) ARCP provides, in part, as follows:

“It is not necessary to aver the capacity of a party to ... be sued . . . When a party desires to raise an issue as to the legal existence of any party . to . . .be sued ... he shall do so by specific negative averment, which shall include such supporting particulars as are peculiarly within the pleader’s knowledge.”

The Committee Comments made to Rule 9 suggest that objections to lack of capacity to be sued should be set out in the answer to the complaint. The federal cases suggest, however, that if the issue of lack of capacity to be sued is properly framed on the face of the pleadings, such a defense can be presented by a motion to dismiss for failure to state a claim upon which relief can be granted, a motion to strike, or a motion for judgment on the pleadings. Klevanow v. New York Produce Exchange, 344 F.2d 294 (2d Cir. 1965); Kucharski v. Pope & Talbot, Inc., 4 F.R.D. 208 (S.D.N.Y.1944). But the federal cases also hold generally that unless the lack of capacity issue is raised at least in the answer, it is waived. 5 Wright & Miller, Federal Practice and Procedure: Civil § 1295; Carver v. Hooker, 369 F.Supp. 204 (D.C.N.H.1973), aff’d. on other grounds 501 F.2d 1244 (1st Cir. 1974).

In view of the Committee Comment to our Rule 9(a), it would appear that the drafters of the Alabama Rules of Civil Procedure intended that the defense of lack of capacity be raised no later than the answer stage of the proceedings. However, in the case at bar, the issue was not raised until after judgment had been rendered by the court and after several post-judgment motions had been disposed of. Consequently we conclude that the defense of lack of capacity to be sued came much too late to be considered by the trial court.

The issues raised on this appeal not being sufficient enough to warrant a reversal, the judgment of the trial court is affirmed.

AFFIRMED.

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


author: WRIGHT, Presiding Judge.

text:
    Russell THOMPSON v. CHILDREN’S AID SOCIETY OF JEFFERSON COUNTY, Alabama.
    Civ. 1012.
    Court of Civil Appeals of Alabama.
    March 9, 1977.
    Rehearing Denied April 6, 1977.
    Mark B. Poison, Birmingham, for appellant.
    L. Murray Alley and James L. Birchall, Birmingham, for appellee.
   WRIGHT, Presiding Judge.

Thompson appeals from denial of petition for issuance of statutory writ of certiorari. We affirm.

The only issue raised by this appeal is whether a writ of certiorari may be granted by a circuit judge of Jefferson County directed to the Family Court of Jefferson County under authority of Title 13, Sec. 184, Code of Alabama (1940).

Succinctly stated the disputed issue on appeal arose as follows: Judgment dismissing a petition filed by Thompson was entered by the Family Court of Jefferson County, Alabama on July 23, 1976; Thompson did not appeal therefrom within the time permitted by statute (Title 62, Sec. 307); Thompson subsequently filed petition for writ of certiorari in the Jefferson County Circuit Court seeking a trial de novo under Title 13, Sec. 184 of the Code; after hearing and submission of memorandum of law, certiorari was denied.

This court has previously discussed at length the meaning and effect of Title 13, Sec. 184. Walker v. Kilborn, 46 Ala. App. 695, 248 So.2d 736 (1971). We discussed and cited therein cases previously decided by the Alabama Supreme Court interpreting the same statute. Jefferson County v. Berkshire Development Corp., 277 Ala. 170, 168 So.2d 13 (1964); Birmingham Realty Co. v. City of Birmingham, 205 Ala. 278, 87 So. 840 (1921). The briefs of the parties in this case indicate they are aware of our decision and those of the Supreme Court. Appellant submits that these cases all misinterpret Sec. 184 of Title 13 and should be overruled. We have no authority to overrule the decisions of the Supreme Court and we have no inclination to change our own.

We consider there is no useful purpose to be served by restating the principles of Walker v. Kilborn, supra. We therefore affirm the judgment below.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


author: HOLMES, Judge:

text:
    The GADSDEN TIMES, a corporation v. John DOE.
    Civ. 1045.
    Court of Civil Appeals of Alabama.
    April 12, 1977.
    Rehearing Denied May 4, 1977.

      William D. Russell, Jr. of Dortch, Wright & Ford, Gadsden, for appellant.
    James F. Hinton, Gadsden, for appellee.
   HOLMES, Judge:

This is an appeal by The Gadsden Times from a jury verdict requiring it to pay $7,000 to Troy Gulledge. -Gulledge, for reasons irrelevant to this appeal, brought the action in the lower court as John Doe.

The issue on appeal is whether the Times was contractually bound to pay Gulledge, appellee herein, $7,000 as a reward. We hold that it was not and, accordingly, reverse and remand.

The record reveals the following:

On Monday, November 26, 1973, Reverend Edward Pace, a minister residing in Gadsden, Alabama, was shot and killed at his home. Subsequent to his murder, the appellant-Times published articles concerning a reward for “information leading to the conviction” of his slayers. Pertinent excerpts from and the dates of publication of the articles follow:

Wednesday, November 28:

“A reward of $3,000 has been offered by citizens of the community for information leading to the conviction of the slayers of the Rev. Edward Pace on Monday night.
“A statement from the Gadsden City Commission announcing the reward says:
“ ‘A reward of $3,000 has already been committed by interested citizens in the community and it is expected that $5,000 will be offered by this evening.’ ”

Thursday, November 29:

“Gov. George C. Wallace has authorized a reward of $1,000 for information leading to the arrest and conviction of persons responsiblé for the murder of a Gadsden minister. .
“Previously, a $3,000 reward was announced in the case by the City Commission, the money coming from citizens of the community.
“Thus, the total reward money now stands at $4,000.”

Friday, November 30:

“Mayor Les Gilliland announced today a total of $5,000 is offered for information leading to the conviction of the slayers of the Rev. Edward Pace.
“Previously, a total of $4,000 had been announced by the city commission.”

Saturday, December 1:

“Contributions total $6,000 today in a fund for information leading to the conviction of the slayers of the Rev. Edward Pace.
“The reward has mounted steadily with contributions from concerned citizens..."

Sunday, December 2:

“Contributions today soared to $8,000 for the arrest and conviction of the slayers of the Rev. Edward Pace.
“Over $7,000 has been contributed to the reward money from concerned citizens since the black minister was slain at his residence Monday night.
“Two persons have been arrested and a murder warrant has been sworn out for a third suspect in the murder.”

After the slaying, Gulledge provided the Gadsden Chief of Police, Charles G. Cary, with information pertaining to the killing. Specifically, Gulledge gave Cary the name of an individual, Ronnie Battles, who reportedly was present at or within 100 yards of the scene of the murder when it occurred.

The date on which Gulledge initially contacted Cary is unknown. However, both Cary and Gulledge testified that it was two or three days prior to the arrest of the suspects. Cary testified that it was Wednesday or Thursday night. Gulledge himself testified that it was on a “week night.” Gulledge also stated that he knew of the reward prior to notifying the police.

After obtaining Battles’ name from Gul-ledge, the police brought Battles in for questioning. The exact date of this questioning is unknown. However, the information elicited from Battles resulted in issuance of three arrest warrants on Saturday, December 1. Two of the suspects, Aubrey Gene Arledge and Ricky Glenn Ar-ledge, were arrested later that same day. On Sunday, December 2, a third suspect, Bruce Wheeler Botsford, was arrested.

Thereafter, Botsford was convicted of the murder of Reverend Pace; R. Arledge plead guilty; and A. Arledge was tried and acquitted.

Gulledge received the state reward of $1,000. He then sought to obtain the other portion of the reward money referred to in the various Times articles. To this end, he contacted one member of the city commission, the city attorney, and Chief Cary, none of whom had any information regarding the other $7,000 in reward money.

The former mayor of Gadsden, Leslie Gil-liland, testified that he knew of no citizens who had contributed to a reward. Neither was he aware of any money which had been collected by the city commission for that purpose. He stated he had no recollection of telling the Times of the existence of a $3,000 or $5,000 fund payable to one who provided information leading to the arrest and conviction of Reverend Pace’s killers.

Gulledge next sought to obtain the reward from the Times. No Times employees were aware either of the existence of the reward money or of any “concerned citizens” who were to provide such money.

When the Times failed to pay Gulledge the $7,000 he filed suit alleging that the Times had published and circulated in Eto-wah County on Sunday, December 2, 1973, an article, the pertinent portion of which is set forth supra, and that he, in reliance on this article and other “previous published rewards of various amounts,” furnished the desired information solicited by the articles. The complaint alleged the Times had-“breached its offer of reward and contract” in that he, in relying on the representations of the Times, had performed the services required of him to entitle him to the payment of the $7,000 reward.

A jury trial was had on August 19, 1976, and as previously stated, the verdict held the Times liable for payments of $7,000 to Gulledge. From the denial of its motion for a new trial, the Times takes this appeal.

Appellant Times asserts numerous grounds for reversal on appeal. The conclusion we reach necessitates addressing only one of these grounds.

The Times contends, as it did in its motions for a directed verdict and new trial, that the knowledge of an alleged offer of a private reward, prior to the performance of the action requested, is an essential element of the right to recover that reward. The Times states such element is here absent. Put another way, the Times states that rewards are merely a particular form of contractual agreement. Being governed by the law of contracts, an offer and acceptance are mandatory. Here, Gulledge could not possibly have accepted the alleged offer made by the December 2 article, since he had acted prior to its publication. The Times asserts a valid proposition of law which, in this instance, requires reversal of the judgment entered below.

Generally, the obligation to pay a reward rests exclusively on a contract. No one is bound to pay a reward unless he had contractually obligated himself to do so. 67 Am.Jur.2d Rewards §§ 2, 3.

Jurisdictions are split over whether one must have knowledge of a reward at the time of performing the services for which the reward is offered in order to be entitled to the reward. 53 A.L.R. 542. Alabama, however, as do the majority of jurisdictions, requires such knowledge.

“[I]f one offer a reward, and another, knowing of the offer, shall do the lawful thing proposed to be rewarded, there is a contract supported by a consideration; and that the assent to the contract is given by the party claiming the reward, when he performs the designated act. . . ” [Emphasis supplied.] (Morrell v. Quarles, 35 Ala. 544, 550 (1860))

Here, the evidence discloses that Gulledge had knowledge of a reward at the time he supplied the information. However, the information he possessed at the time of his action could in no way have been construed to constitute an offer by the Times.

Gulledge testified that he provided information to the chief of police on a week night, two or three days before the arrests of the suspects. The suspects were arrested on Saturday, December 1. Hence, Gul-ledge’s testimony reveals that he provided the information on Wednesday or Thursday. Likewise, Cary, the Chief of Police, declared Wednesday or Thursday to be the date on which Gulledge first contacted him.

Thus, it is obvious that Gulledge could not have given the information in reliance on the Times’ Sunday, December 2, article, as that article was published only after the arrests of the suspects.

The record clearly establishes that Gulledge acted prior to Saturday, December 1, the date warrants were issued and two suspects arrested; and examination of the Times articles published prior to that date discloses no “offer” on behalf of the Times. While the November 28-30 articles speak of reward money, the reward is attributed to the city commission, Mayor Leslie Gilliland, and/or concerned citizens. In none of these articles does the Times purport to be the offerer of a reward. Thus, Gulledge at the time he gave the information, could not reasonably be deemed to have been accepting a contractual offer by the Times.

That he acted in reliance on one of these November articles is apparent. When attempting to claim the reward, he first contacted city officials. It was only after these officials disavowed any knowledge of the reward money that Gulledge contacted an attorney, who thereafter contacted the Times to claim the reward for Gulledge.

One who renders a service to the public by providing information which aids in the apprehension of criminals is to be commended. It is indeed unfortunate that there was no reward money as reported by the Times articles. However, we are bound by the law of this state, which permits one to collect a reward offered by a private party only if he knew of such offer at the time of his action. Morrell, supra. The record reveals that Gulledge acted prior to the publication of any article which might reasonably have been construed to constitute an offer of reward by the Times. Thus, as a matter of law, there could have been no contract between the parties. Consequently, the trial court’s failure to grant the Times’ motion for a directed verdict on the grounds that the evidence failed to establish the breach of an offer of contract by the Times constituted reversible error.

REVERSED AND REMANDED FOR PROCEEDINGS NOT INCONSISTENT WITH THIS OPINION.

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


text:
    Kenneth Wayne PATTERSON v. Erla PATTERSON (Lunn).
    Civ. 999.
    Court of Civil Appeals of Alabama.
    May 4, 1977.

      Tom Radney, Alexander City, for appellant.
    Ruth S. Sullivan, Dadeville, for appellee.
   WRIGHT, Presiding Judge.

This is an appeal from judgment denying modification of child custody. We affirm.

The parties were divorced in 1973. By agreement, custody of two minor children was granted to the mother. Each party has remarried. The father began this action by petition for custody of his son Dale, age 12.

The evidence was heard orally before the judge. He determined that the evidence failed to show any material change of circumstances occurring since the divorce which affects the welfare and best interest of the child. We agree. Basically, the evidence of the father was that the boy now wished to live with him. The boy did indicate that he desired to live with his father. However, only a few days before, he had stated to another judge that he desired to continue living with his mother. A few days prior to that statement, he had indicated a desire to live with his father. In less than a month, the child had made three contrary statements. This indicates only a childish uncertainty probably caused by parental pressure and influence. The testimony indicated that he had become physically ill as a result of the pressure.

There was no testimony that the custody of his mother was in any manner detrimental to the welfare and best interest of the child nor that his welfare would be better served by altering custody. Such being the case, there is no authority for change. In re Ford v. Ford, 293 Ala. 743, 310 So.2d 234 (1975).

It is proper that the court give due consideration to the wishes of a child in determining custody. However, the wishes of the child are not controlling. Sutton v. Sutton, 55 Ala.App. 254, 314 So.2d 707 (1975). After consideration of all the testimony, we are not impressed that the trial court erred in denying the petition of the father. Snead v. Snead, 279 Ala. 344, 185 So.2d 135 (1966).

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


author: HOLMES, Judge.

text:
    FEDERAL MOGUL CORPORATION, a corp. v. Randall R. TAYLOR.
    Civ. 1022.
    Court of Civil Appeals of Alabama.
    May 4, 1977.
    Michael B. Maddox of Guin, Bouldin & Porch, Russellville, for appellant.
    Barry Mansell of Fine, McDowell & Man-sell, Russellville, for appellee.
   HOLMES, Judge.

This is a workmen’s compensation case.

The issues are agreed upon by the parties and are as follows:

1. Did the trial court err to reversal in finding that the employee’s skin condition arose out of and in the course of his employment?

2. Did the employee’s refusal of employment offered to him by the employer disen-title the employee to compensation?

We answer both in the negative and affirm.

The testimony reveals that the employee while in the employ of the employer worked with his hands in solutions of “coolant”; that employee developed a severe skin condition; that prior to this employment he had never experienced any allergy or dermatological problem. The employee was seen by a specialist who testified in part as follows:

“A. My record at the time indicates that he had a generalized allergic contact dermatitis, which means that by the time I saw him, even though the history was that it had begun on his arms and hands, he more or less had a generalized reaction, which means it had gotten in the bloodstream or he had become ‘sensitized.’ This is a frequent occurrence with any type of allergic reaction, whether it be a coolant, as he contends, or whether it be poison ivy, for example.
“Q. In layman’s terms, could we say it had spread around on his body?
“A. Yes, in layman’s terms, it had gotten into his bloodstream and spread around, so to speak.
“Q. Was he able to work at that time?
“A. I would have to say no at the time; however, I did anticipate his being able to return to work at that time..."

The general tenor of the physician’s testimony was that he could not with any degree of certainty explain what was causing the employee’s skin problem. He did, however, testify the condition had worsened.

The tenor of certain testimony of the doctor and of an employee of the employer was to the effect the treatment and diagnosis of the employee was predicated on the fact that the coolant involved was of a certain type, when in fact it was not of this type. However, we additionally find the following testimony by the doctor.

“Q. So in your expert opinion, it is possible that he was sensitized by working in the coolant on the job?
“A. Yes.”

The employee testified, as noted above, that he had never had any skin problem prior to his employment with the employer and prim; to working with the coolant; that his job required him to place his hands in the “coolant”; and that when he first developed the condition he reported it to his foreman and was thereafter sent by the company to the “company doctor.”

With the above before the trial court, a finding of 25% permanent partial disability of the body as a whole was made.

As this court and the Supreme Court of Alabama have stated on numerous occasions on certiorari to review judgments in workmen’s compensation cases, the appellate court does not look to the weight of the evidence as to any fact found by the trial court, but looks to see if there is any evidence to support facts and conclusions found by the trial court. See Vulcraft, Inc. v. Wilbanks, 54 Ala.App. 393, 309 So.2d 105 (1975); 19A Alabama Digest Workmen’s Compensation Key 1940. We do not deem it necessary to set out again the supportive facts as they relate to the issue at hand. Suffice it to say the employee’s testimony and certain testimony of the doctor, as set out above, supports the trial court’s conclusion that the skin condition arose out of and in the course of the employee’s employment.

Title 26, § 279(C)4, Code of Alabama 1940 (1973 Cum.Supp.), reads as follows:

“If an injured employee refuses employment suitable to his capacity, offered to or procured for him, he shall not be entitled to any compensation at any time during the continuance of such refusal unless at any time in the opinion of the judge of the circuit court of the county of his residence, such refusal is justifiable.”

The following testimony by the employee is found in the record:

“Q Weren’t you offered a job on another shift in another department?
“A Yes, sir.
“Q What job were you offered?
“A One was sweeping, and one was on the press, I believe.
“Q The job on the press, would you have been using any coolant on that job?
“A Not to my knowledge, no, sir.
“Q Did you take the job as press operator?
“A No, sir.
“Q Why?
“A It didn’t pay as much as what I was making.
“Q What were you making as a roll grind operator?
“A $3.25 an hour.
“Q What did the press operator pay?
“A $3.05, I believe.”

In addition to the above, another employee of the employer testified that a job was offered to the injured employee and he did not accept this employment. This job was not involved with “coolant.”

The trial court specifically found that the employee was justified in refusing the offer of employment after the injury.

The above quoted statute clearly allows the circuit court to find that the employee was justified in refusing employment. Therefore, the only determination for this court to make is whether the action by the trial court is supported by the evidence.

Keeping in mind the standard of review, as set out hereinabove, we cannot say the trial court erred.

The appellee-employee in brief cites the following language as contained in Nashville Bridge Co. v. Honeycutt, 246 Ala. 319, 325, 20 So.2d 591, 595 (1945):

“[A]s a general rule the mere fact that after the injury the employee received or is offered his former wages or a larger sum will not by itself preclude recovery of compensation under the compensation statutes.
“There are authorities to the further effect that there may be compensation for disability though there is no immediate actual impairment of earning, if the employee’s physical agency has been substantially impaired. The authorities are also to the effect that the fact that after the injury the employee had been taken back as soon as he was able to work and continued in his employment by his former employer is ‘inconclusive’ as against impairment of his earning capacity. Such is the rule declared by the courts of California, Colorado, Kansas, Massachusetts, Montana, West Virginia, Wisconsin and England.

“The reason for the rule stated in Gailey v. Peet Bros. Mfg. Co., 98 Kan. 53, 157 P. 431, is:

“ ‘If this employment relieved the defendant of liability, then any employer can escape liability for compensation by retaining the injured employé and paying him wages, although he may not be able to do as good work after the injury as he did before. An injured em-ployé may not wish to continue to work for the one in whose employ he was injured, and because of his injury he cannot obtain as good wages in another place. The injured employé has a right to compensation for his injury. It does not matter that his employer continues to accept his services and pay him regular wages, unless that employment continues for the entire period for which compensation might be allowed. The act fixed the liability when the employé was injured. That liability can be discharged only in the manner directed by the statute.’ ”

We believe this language is dispositive of the issue, as clearly the evidence is supportive that the employee has some impairment of earning capacity and this is what the trial court found.

The case is due to be and is affirmed.

AFFIRMED.

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

      . This court would be remiss in not commenting that both the employer and the employee have favored this court with excellent briefs. The briefs are short, concise, and to the point. We are grateful for counsels’ assistance.


text:
    Charles C. ROGERS v. Sherron P. ROGERS (Glasscock).
    Civ. 1048.
    Court of Civil Appeals of Alabama.
    May 4, 1977.

      Alvin T. Prestwood, Montgomery, for appellant.
    L. Wayne Collier, Montgomery, for appel-lee.
   BRADLEY, Judge.

This is an appeal from an order of the Circuit Court of Montgomery County denying a petition to modify a divorce decree by changing custody of the minor children of the parties from the mother to the father.

The parties to this appeal were divorced from each other on August 1, 1974, and by agreement the mother was awarded custody of the children. In September 1974 the father unsuccessfully sought by petition to acquire custody of the children. Again in August 1976 the father filed a petition seeking a change in custody, alleging the mother had remarried, that the mother’s home situation created an unhappy environment for the children, that the children were older, and that the children needed to spend more time with their father. After a hearing the circuit court denied the father’s petition, holding that there had not been “a substantial change in circumstances sufficient to justify” a change in custody. The court also suggested, but did not order, that both parties, the mother’s new husband, and the children seek professional counseling so that they might better cope with the custody arrangement. The father appeals from this decree.

The children in question are two boys, who were thirteen and eleven years of age at the time of the hearing, and a girl, then eight years old. The children testified at the hearing out of the presence of their parents. The little girl said she preferred to live with her father because she does not like her new stepfather, but stated she loves her mother and her father equally. The thirteen year old boy testified that he loves his father more than he loves his mother and that he would be happier living with his father; he said he does not like his stepfather. The eleven year old boy said that he does not love his mother as much as he loves his father, that he does not like his stepfather, and that he likes the area where his father lives; he has fun when he visits his father and life is dull living with his mother.

The children visit the father on alternate weekends and from two weeks to a month during the summer. The father lives in a one-bedroom apartment. When the children involved here visit the father, he takes them on excursions, they often cook food on an outdoor grill, and the children are allowed to stay up late to play outside with the many other children in the apartment complex or to watch television. When the children are with their mother they are made to study for school and do chores around the house. The mother is the primary disciplinarian, although the stepfather seems to support her in her effort. The two boys make good grades in their new school and both participate in extracurricular activities offered by the school.

The boys were involved in Little League baseball with their stepfather prior to his marriage to their mother and both children liked the man at that time. The reasons the two boys gave for not liking their stepfather now were that he sometimes disciplines them, he will not let them watch their mother cook, and he watches television a lot. It is not an unfair inference from the record to conclude that the father has taken an active role in developing the children’s attitudes toward their mother and new stepfather and where they would like to live.

It is well settled that a divorce decree providing for custody of minor children will not be modified unless there is a showing that the circumstances of the parties and the children have substantially changed so as to justify the modification. Snead v. Snead, 279 Ala. 344, 185 So.2d 135 (1966); Gould v. Gould, 55 Ala.App. 379, 316 So.2d 210, cert. den. 294 Ala. 757, 316 So.2d 214 (1975). The only change in the circumstances of the parties and the children since the divorce and the first petition for change of custody is the mother’s move to a different area of the city and her remarriage, and the children’s decision that they would rather live with their father than with their mother.

Although the effect of a remarriage can be shown along with other factors as a circumstance indicating a material change of condition since the divorce, the fact of remarriage of a party alone is not such a material change of condition as to justify modification of the original decree awarding custody. Raines v. Baucom, 270 Ala. 706, 121 So.2d 870 (1960). Here the children testified that they did not like their new stepfather and they were happier living with their father than with their mother and her new husband. However, there is no evidence that the stepfather does not love these children, that he mistreats them, or that the children are being harmed either physically or psychologically by living in the same household with the mother’s new husband. Nor is it apparent that their welfare and best interests would be substantially enhanced by a change of custody. We cannot say the trial judge, who observed all the parties involved as they testified, abused his discretion by refusing to change custody of the children to the father simply because the mother has remarried.

The other change in circumstances since the divorce is the apparent desire of the children to live with their father rather than their mother. According to their testimony and that of the father, the children wanted to live with their father before their mother remarried; thus, it does not appear that the mother’s remarriage was a decisive factor in the children’s attitude.

It is true that the preferences of children involved in a divorce with regard to their custody are entitled to much weight. Weems v. Weems, 255 Ala. 210, 50 So.2d 428 (1950); Sutton v. Sutton, 55 Ala.App. 254, 314 So.2d 707 (1975). However, the wishes of the children are not controlling. Patterson v. Patterson, 345 So.2d 1364 (Ala.Civ.App., 1977); Hattrick v. Hattrick, 52 Ala.App. 539, 295 So.2d 260 (1974). The primary consideration in a child custody case is the best interest and welfare of the children involved. Featherston v. Featherston, 271 Ala. 238, 123 So.2d 120 (1960); Stuckey v. Stuckey, 50 Ala.App. 682, 282 So.2d 283 (1973).

The children said they do not like living with their mother. She disciplines them, requires them to study their school lessons, and makes them go to bed at an early hour when they are with her during the week. While it is readily understandable that the children have more fun when they visit their-father than when living with their mother, this sort of preference, due primarily to the immaturity of the children, is not the sort of preference to which a trial court is required to give great weight. Furthermore, were the children to go to live with their father, they would still have to assume their responsibilities of school attendance and study and household work. Thus, not only is there no evidence that the welfare of these children is adversely affected by their living with their mother, it does not appear that they would benefit by a change of custody to their father. We find no abuse of discretion in the trial court’s decision.

The father maintains in brief that the trial court’s suggestion that the parents, the stepfather and the children all seek counseling amounts to a recognition that the children are unhappy in the custody of their mother but rather than change custody to remedy the situation the court has told the children “to get counseling so you will like it.” It appears that the normal difficulty the children are having in adjusting to the presence of a new stepfather in the household is exacerbated by the attitude of the natural father. Thus, the counseling is as much for the benefit of the adults involved as for the children. The trial court having committed no error, its judgment is affirmed.

Appellee has moved this court to award her attorney a reasonable fee for representing her in this matter. After careful consideration we consider $300 to be a reasonable fee for the services rendered by appel-lee’s attorney and so award that amount to her.

AFFIRMED; ATTORNEY’S FEE AWARDED.

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


text:
    STATE of Alabama v. STEEL CITY CRANE RENTAL, INC., an Alabama Corporation, and Osborne and Company, Inc., an Alabama Corporation.
    Civ. 1079.
    Court of Civil Appeals of Alabama.
    May 4, 1977.

      William J. Baxley, Atty. Gen. of Ala., Herbert I. Burson, Jr., Counsel, Dept, of Revenue and Asst. Atty. Gen. of Ala., B. Frank Loeb, Asst. Counsel, Dept, of Revenue and Asst. Atty. Gen. of Ala., for the State, appellant.
    Maurice F. Bishop, Birmingham, for Osborne & Co., Inc.
    R. 0. Hughes, Birmingham, for Steel City Crane Rental, Inc.
   HOLMES, Judge.

This is a lease tax case.

The Circuit Court of Jefferson County, after a hearing ore tenus, set aside a final assessment of taxes made by the State against the taxpayers. The taxes had been assessed pursuant to the provisions of Tit. 51, § 629(21), et seq., Code of Alabama, Alabama’s lease tax statute. From this action by the circuit court, the State appeals.

The dispositive issue is whether, in this instance, the furnishing of cranes with operators is a lease or rental of tangible personal property within the meaning of Alabama’s lease tax statute. We answer in the negative and affirm.

At the outset, we note that the taxpayers make reference concerning this court’s jurisdiction regarding the instant appeal. Suffice it to say this court has jurisdiction. Tit. 13, § 111(3), Code of Alabama (1973 Cum.Supp.), provides in pertinent part that the Court of Civil Appeals has exclusive appellate jurisdiction of “. all appeals from administrative agencies...."

Viewing the evidence as revealed by the record with the attendant presumption accorded the trial court’s action, we find the following:

The taxpayers are in the business of renting large cranes to the construction industry. Their cranes are furnished with or without operators, depending upon the request. It is agreed by all parties that those cranes furnished without operators are subject to the lease tax.

The evidence is without dispute that the operators are the employees of the taxpayers and that all fuel, maintenance, repair, etc., on the cranes are performed at all times by the taxpayers. There is testimony that for safety reasons and otherwise, the operator of the crane determines where and how the crane is to operate. In addition, the evidence shows that the taxpayers were responsible for security of the cranes. Taxpayers may substitute cranes. There is further evidence that the operator (taxpayer’s employee) was in physical control of the crane at all times and that the manner in which the particular job was to be accomplished was discussed with the contractor (“lessee”).

Additionally, there was specific testimony from a witness that the contractor maintained control over the job and the operator maintained control over the crane; that the operation was a team effort. Further testimony was to the effect that the only function the contractor performed over the operation of the crane and its operator was an overall coordination of the job, much like a general contractor would coordinate subcontractors. The taxpayers are paid by the contractor in some instances on an hourly rate and in other instances by a fixed fee.

With the above before it, the trial court’s decree found in pertinent part as follows:

“Taxpayers contend that, under this factual situation, there is no lease tax due because there was no ‘leasing or rental’ of the subject equipment under the allegedly applicable statute (Act 96, Special Session 1971) (1971 General Acts, Vol. I, Page 166.) Thereunder, the levy is made:
‘At the rate of 4% of the gross proceeds derived by the lessor from the lease or rental of tangible personal property’.
Further, the term ‘leasing or rental’ is defined by Section 1(e) of the act as follows:
‘The term “leasing or rental” means and includes a transaction whereunder the person who owns, or controls the possession of, tangible personal property permits another person to have the possession or use thereof for a consideration and for the duration of a definite or indefinite period of time, without transfer of the title to such property’.
“From the above it may readily be seen that the crucial, decisive question is that of whether the subject arrangement constitutes a ‘leasing or rental’ within the Act. Also, basically, the solution to this question revolves around the words ‘possession or use’ as they appear in the Act.
“This Court holds that it is fundamental to common sense that before a person can exercise ‘possession or use’ of property he must have control thereof and the power to exercise dominion over it. There has never been any relinquishment of dominion and complete control over the subject property by the owners. Conversely, the owners have strictly avoided any semblance of relinquishment.
“Briefly, the arrangement constitutes a contract for the performance of a particular job or jobs and is not a ‘lease or rental’.”

As noted earlier, the State has appealed to this court from the trial court’s action.

As shown by the trial court’s decree, Tit. 51, § 629(22), Code of Alabama (1973 Cum. Pocket Part), levies a lease tax on proceeds derived from the lease or rental of tangible personal property. Leasing or rental is defined as:

“[A] transaction whereunder the person who owns, or controls the possession of, tangible personal property permits another person to have the possession or use thereof for a consideration and for the duration of a definite or indefinite period of time, . . . ” (Tit. 51, § 629(21)(e), Code of Alabama (1973 Cum.Pocket Part)

Taxpayers, in an excellent brief, cite cases wherein transactions markedly similar to those between taxpayers and contractor/lessee herein have been held not to constitute a rental or lease. Rice Bros., Inc. v. Glens Falls Indemnity Co., 121 Cal.App.2d 206, 263 P.2d 39 (1953); Insurance Company of North America v. Northwestern National Insurance Company, 371 F.Supp. 550 (D.C.Mich.1973), affirmed 494 F.2d 1192 (6th Cir. 1974). See also Entremont v. Whitsell, 13 Cal.2d 290, 89 P.2d 392 (1939); Roadbuilder’s Hauling Co. v. Constitution Indemnity Co. 165 S.C. 363, 163 S.E. 837 (1932).

The basis of the decisions in Rice Bros., Inc. and Insurance Company of North America, supra, may be summarized as follows. The principal characteristic of a rental or lease is the giving up of possession to the lessee so that he, as opposed to the lessor/owner, exercises control over and uses the leased or rented property. The facts of these cases revealed insufficient relinquishment of control over the equipment by the “lessor” to sustain a finding that the lessee was in possession of the equipment. Hence, there was no lease or rental.

As previously stated, the circumstances herein place this case within the holdings of Rice Bros., Inc. and Insurance Company of North America, supra. However, the State would distinguish these cases on the grounds that there was no statutory definition of lease or rental. Here, the State contends, a lease or rental is statutorily defined as a transaction not only where the owner allows another to have “possession” of tangible personal property, but also where the owner permits another the “use” of tangible personal property for consideration. In other words, since the statute declares that a lease or rental is a transaction whereby the owner permits another to have “possession or use” of the property, either one — “possession” or “use” —is sufficient to bring the transaction within the statute. Both possession and use are not required. The term “use” is a broader term than possession and, in this instance, the State concludes the lease tax was properly applied. This contention is without merit.

A statute is to be construed so as to effectuate the intent of the legislature. League of Women Voters v. Renfro, 292 Ala. 128, 290 So.2d 167 (1974). In ascertaining the legislative intent, courts may construe the disjunctive conjunction “or” and the conjunctive conjunction “and” interchangeably. In re Opinion of the Justices, 252 Ala. 194, 41 So.2d 559 (1949). Additionally, taxing statutes are to be construed against the taxing power and in favor of the taxpayer. State v. International Paper Company, 276 Ala. 448, 163 So.2d 607 (1964). Interpreting Tit. 51, § 629(21) et seq. with due regard to the above principles compels a conclusion by this court that the legislature did not seek to expand the meaning of lease or rental beyond that normally ascribed to such terms. Hence, the transaction in question fails to fall within the levy of § 629(21) et seq.

Furthermore, even if we accepted the State’s proposition with regard to the expanded interpretation of the statute, the ultimate result herein would remain unchanged, for the essence of the arrangement in question is not that of a lease. Rather, it is an agreement whereby one party has agreed to perform a particular task or tasks for another. It is a contract under which the taxpayers are obligated to perform services for a certain number of hours or until the completion of a given job. The contractor/lessee does not even specify which crane is to be utilized when he requests a crane with an operator. That decision remains within the sound discretion of the taxpayers. Granted, the contractor/lessee derives a benefit from the completion of the tasks by the crane. However, it is the taxpayers, not the contractor/lessee, who “use” the cranes. The substance of taxpayers’ contracts with the contractor/lessee are agreements to provide services for the contractor. Hence, in this instance, this court cannot accept the State’s contention that such transactions are subject to the lease tax levied by Tit. 51, § 629(21) et seq., Code of Alabama (1973 Cum.Pocket Part).

AFFIRMED.

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


text:
    Doris Maxine Dousay BRICK v. Robert William BRICK.
    Civ. 1105.
    Court of Civil Appeals of Alabama.
    May 4, 1977.

      Edward L. Hopper, Huntsville, for appellant.
    Robert William Brick, pro se.
   BRADLEY, Judge.

Doris Maxine Dousay Brick and Robert William Brick were married on November 10, 1975, separated on March 19, 1976, and divorced on the ground of incompatibility by order of the Circuit Court of Madison County on December 14, 1976. The trial court’s decree, besides divorcing the parties, required Mrs. Brick to pay to Mr. Brick $1,800 as a property division and property settlement. It is from this aspect of the decree that Mrs. Brick appeals to this court.

Mrs. Brick contends in her brief that requiring her to pay her former husband $1,800 is, in effect, requiring her to pay him alimony contrary to the case law of Alabama. In support of her argument she cites us to the supreme court case of Davis v. Davis, 279 Ala. 643, 189 So.2d 158 (1966), and our cases of Grant v. Grant, 49 Ala.App. 559, 274 So.2d 329 (1973) and Body v. Body, 47 Ala.App. 443, 256 So.2d 184 (1971). These cases hold that in the absence of a statute so authorizing it, the wife cannot be required to pay alimony to the husband. There is no statute in Alabama authorizing the payment of alimony to the husband by the wife.

The evidence in the case at bar shows that prior to the marriage Mrs. Brick made known to her future husband that she had debts of $4,045.32, part of which was due to her purchase of an automobile. Mrs. Brick stated that Mr. Brick told her that her “troubles would be over” if she married him. Mr. Brick said he did not mean by this he would assume financial responsibility for her debts if she would marry him, but that he would teach her how to better manage her money.

After the marriage Mrs. Brick attempted unsuccessfully to borrow money in her own name to satisfy her indebtedness. Mr. Brick then borrowed $4,200 from the Red-stone Federal Credit Union; $3,600 of this loan was used to pay off Mrs. Brick’s debts.

Also shortly after the parties’ marriage they agreed to contribute to a joint checking account, with Mrs. Brick depositing $430 a month and Mr. Brick depositing $375 a month. Out of this joint account the parties paid their household expenses and $192 per month on the loan made by Mr. Brick. Mrs. Brick says that during the short marriage she contributed almost twice as much to the joint fund as Mr. Brick. The credit union payment of $192 per month was paid out of this fund until Mr. Brick left their home and made no further contributions to the fund. At the time of the divorce $3,600.00 remained to be paid on the loan. Mr. Brick said that he was paying off, or had paid off, the loan at the credit union and that he. did not intend the payment of Mrs. Brick’s debts as a gift.

Mrs. Brick was not awarded alimony in the divorce decree nor was there a property division between the parties; it did not appear that the parties acquired any joint property during the marriage. Apparently the only commodity divided was debts, since Mrs. Brick was required to pay Mr. Brick about half of the indebtedness undertaken by Mr. Brick outstanding at the time of the separation.

The trial court’s division of debts incurred during this marriage cannot be characterized as a property division, since there was no accompanying transfer of property. Thus, this situation is distinguished from that in which a spouse is awarded the marital home and at the same time required to assume liability for any mortgage on the house. Nor was there an express agreement between the parties that both would be equally bound to satisfy the indebtedness on which Mr. Brick alone was legally obligated.

We think that the trial court’s order dividing liability for the debt of the husband between the husband and wife was, in effect, a requirement that the wife pay alimony to the husband.

In Hager v. Hager, 293 Ala. 47, 299 So.2d 743 (1974), our supreme court thoroughly discussed the law relating to alimony. Permanent alimony, or alimony in gross, is grounded on two basic concepts. The first is that an allowance is made from the husband to the wife in lieu of a division of the parties’ estate and is charged against the estate of the husband at the time of the divorce. See Epps v. Epps, 218 Ala. 667, 120 So. 150 (1929); Smith v. Rogers, 215 Ala. 581, 112 So. 190 (1927). The second is that an award is made from the husband to the wife for the wife’s future support and maintenance, since severance of the marital relationship relieves the husband from his duty to support his wife. The latter award may be made either from the husband’s estate at the time of the divorce or from his future estate. See Epps v. Epps, supra; Ex parte Whitehead, 179 Ala. 652, 60 So. 924 (1913).

The division of debts in the case at bar seems to fall within the first characterization of permanent alimony discussed above, as it clearly was not intended as maintenance for Mr. Brick from Mrs. Brick. Rather, it seemed intended to be a final settlement of the parties’ estate. Furthermore, since the order was that Mrs. Brick pay Mr. Brick the lump sum of $1,800, it seems that the award of necessity must be made from Mrs. Brick’s present and separate estate. Such an award of alimony from the wife to the husband is not authorized by law.

We therefore find that the trial court erred in requiring the wife to pay to the husband $1,800, and reverse this aspect of the decree. The remaining portions of the decree are affirmed. The cause is remanded to the trial court for corrections to the divorce decree in conformity with our decision.

AFFIRMED IN PART; REVERSED IN PART AND REMANDED WITH INSTRUCTIONS.

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


author: PAUL, Retired Circuit Judge.

text:
    FIRST STATE BANK OF ALBERTVILLE, a Banking Corporation v. Robert E. DUVALL and Billy Silas.
    Civ. 1088.
    Court of Civil Appeals of Alabama.
    May 18, 1977.
    David J. Evans, Jr., Albertville, for appellant.
    T. J. Carnes for Carnes & Carnes, Albert-ville, for appellees.
   PAUL, Retired Circuit Judge.

This appeal is from a ruling of the Circuit Court of Marshall County sustaining an objection to the admission into evidence of a loan guaranty agreement. The plaintiff who recovered a judgment in the amount of $1,725 appeals. We affirm.

Robert E. Duvall on January 3, 1975, executed a secured installment note and security agreement to appellant First State Bank of Albertville. Appellee Billy Silas executed a promissory note to the bank for $1,500 on November 11, 1975. Both parties defaulted on their payments.

On July 30, 1976, First State Bank filed suit against Duvall on the installment note, against Duvall and Silas on a loan guaranty agreement, and against Silas on his note. Silas answered with a general denial and alleged the guaranty agreement was null and void because Duvall Grocery and Service Station was not a legal entity at the time of the guaranty. Duvall was never served with process. The case proceeded to trial before a jury on December 8. The jury returned a verdict of $1,725 in favor of the bank against Silas on his promissory note.

Thomas Stinson, a loan officer at First State Bank, was the only witness whose testimony appears in the record on appeal. The installment note and security agreement of January 3 was admitted into evidence without objection. In the space provided for the borrower to sign the note and security agreement was the following:

“Duvall Grocery & Service Station By: Robert E. Duvall.”

The note was for $12,000 with interest of 13.69% per annum and other charges making the total liability $15,260.40. Duvall made 11 payments between February 10, 1975, and January 16, 1976. This left an outstanding balance of $6,471.14.

At that point the following took place:

“Q Mr. Stinson, I show you a third document. If you would, can you tell me what this document is?
A It’s a loan guaranty agreement between the bank and Duvall Grocery and Service Station, signed by Robert Duvall and Billy Silas.
Q How did this come into your possession?
A It’s stated here January, ’75, the 3rd day of January, ’75, they signed it in the bank.
Q Did you see them sign it?
A No, I didn’t.
“Mr. Evans: Your Honor, we offer this as Plaintiff’s Exhibit 3.
“Mr. Carnes: We object to the introduction of that instrument because it’s an agreement to guarantee the debt of Du-vall Grocery and Service Station of Highway 431, Albertville, Alabama, and there’s no showing that’s a legal entity capable of incurring a debt.
“Mr. Evans: Your Honor, from the Plaintiff’s Exhibit 2, Duvall Grocery and Service Station is not an entity. I agree to that, but it is, in fact, Duvall, Robert Duvall .
“Mr. Carnes: Plaintiff’s Exhibit 2 is a transaction between other parties, and it’s covered by UCC. Plaintiff’s Exhibit 3 is signed by this defendant.
“The Court: At this stage of the trial, the court sustains the defendant’s objection to Plaintiff’s Exhibit # 3.”

The only issue raised on appeal is the alleged error in excluding the loan guaranty agreement.

At the outset we note that a trial court will not be reversed for sustaining an objection where the evidence was properly objectionable although another ground was stated by counsel as his ground of objection. Smith v. Dillard, 291 Ala. 96, 278 So.2d 358 (1973); Houston v. Town of Waverly, 225 Ala. 98, 142 So. 80 (1932); Lightman Bros. & Goldstein v. Epstein, 164 Ala. 660, 51 So. 164 (1909).

Appellant bank contends Duvall Grocery and Service Station, although not a legal entity, is a business capable of signing an instrument under Tit. 7A, § 3-401(2), Code of Alabama (1940) (Recomp. 1958). Comment 2 to this section indicates the signature may be made in any name, however false or fictitious,' and that parol evidence is admissible to identify the signer. When so identified the signature is effective. Although the loan guaranty agreement is not governed by the Uniform Commercial Code, Tit. 7A, § 3-104, we believe the same principles would apply to it.

But here there was no evidence at all as to what the name Duvall Grocery and Service Station implied. There was no evidence as to whether it was a corporation, partnership or an individual proprietorship. There was no evidence that the debtor referred to in the loan guaranty agreement was the same debtor who signed the installment note. There was no evidence that the debt created in the installment note was one covered by the loan guaranty agreement. There was no evidence of the circumstances surrounding the execution of the loan guaranty agreement. In short, no connection was shown between the installment note and the loan guaranty agreement.

The trial court in sustaining the objection did not rule that the agreement was per se inadmissible. The court ruled, “at this stage of the trial, the court sustains the defendant’s objection to plaintiffs Exhibit # 3.” A trial court may at its discretion permit the introduction of evidence before other proof which is necessary to render it competent and relevant. Conner v. Ray, 195 Ala. 170, 70 So. 130 (1915); Jordan v. State, 79 Ala. 9 (1885). There was no abuse of discretion when the trial court denied admission of the agreement pending other proof. As offered the guaranty agreement was irrelevant unless preceded by other evidence. Crutchfield v. Vogel, 233 Ala. 306, 171 So. 889 (1937); Owen v. Ala. Gt. So. R. R., 181 Ala. 552, 61 So. 924 (1913).

We would note that after the ruling of the trial court parol evidence could have been used to relate the two documents to one transaction. Rock Island Sash & Door Works v. Moore, Handley Hdw. Co., 147 Ala. 581, 41 So. 806 (1906). However, there was no offer to produce any other evidence, parol or otherwise, to lay a basis or foundation for the introduction of the agreement. With the above in mind, the trial court did not commit reversible error in excluding the loan guaranty agreement.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.

      . Sitting by order of the Chief Justice pursuant to § 6.10 of the Judicial Article, Amendment No. 328 of the Constitution.


text:
    Robert B. LEAVELL v. JOHN JORDAN ENTERPRISES.
    Civ. 1120.
    Court of Civil Appeals of Alabama.
    May 18, 1977.
    Scott Q. Kirkland, Montgomery, for appellant.
    Luther H. Waller, Jr., Montgomery, for appellee.
   HOLMES, Judge.

The Circuit Court of Montgomery County granted the defendant’s Rule 56, ARCP, motion for summary judgment.

The plaintiff appealed. The sole issue on appeal is the correctness of the trial court’s granting of the Rule 56 motion. We affirm.

The facts of this case and its predecessor are somewhat involved and only those facts necessary to this appeal will be set out.

Prior to the lawsuit which is the basis of the instant appeal, Nolin and O’Donnell sued Leavell, the present plaintiff, and the present defendant, Jordan. That suit was for the negligent destruction of a house. A default judgment was had against the present defendant, Jordan, in favor of No-lin and O’Donnell, in the amount of $1,500. This judgment was paid by Jordan.

After a jury trial was had, a verdict was returned in favor of Nolin and O’Donnell and against Leavell. The amount of this judgment was $3,500. During the course of the O’Donnell and Nolin v. Leavell jury trial, the learned trial judge instructed the jury that Jordan was an independent contractor for Leavell. The trial court further instructed the jury that if the employer (Leavell) was guilty of concurrent negligence with the independent contractor (Jordan), the fact that an independent contractor performed the act in question was no defense.

In addition to the above, the trial court instructed the jury that if a judgment was returned against Leavell, then in that event, the $1,500 paid by Jordan to O’Donnell and Nolin must be deducted from any damages assessed against Leavell. Put another way, Leavell received credit for Jordan’s payment. As noted earlier, the jury returned a verdict in favor of Nolin and O’Donnell and against Leavell. This matter was appealed to this court by Leavell and affirmed on March 2, 1977, Ala.Civ.App., 342 So.2d 1323.

We now arrive at the point of the instant appeal. Leavell now sues Jordan for negligent performance of a contract. The breach of the contract complained of arises from the same facts as the lawsuit set out hereinabove, to wit, Jordan destroyed the wrong house and thereby breached his contract with Leavell. In view of the prior lawsuit and the subject matter of this appeal, the trial court granted defendant’s motion for summary judgment. Hence, this appeal.

The following language as found in McLaughlin v. McLaughlin, 53 Ala.App. 545, 548, 302 So.2d 233, 236 (1974), is applicable in this instance:

“To this court, the principle involving summary judgments most applicable in this instance is that where facts asserted are such that, if established, there could be no recovery, or where undisputed facts are such as would preclude plaintiff’s recovery, question on motion for summary judgment for defendant becomes one of law for determination of court and a proper matter for disposition by summary judgment. Greyhound Corp. v. Excess Ins. Co. of America, 233 F.2d 630 (C.A. 5 1956).” [Emphasis supplied.]

It is clear to this court that Leavell and Jordan have been judicially determined to be joint tort-feasors. It is equally clear that Leavell is now attempting to sue his joint tort-feasor.

The law in Alabama is that one of several joint tort-feasors cannot enforce contributions from the other. Home Ins. Co. v. Stuart-McCorkle, Inc., 291 Ala. 601, 285 So.2d 468 (1973). See also 5 Ala. Digest Contributions @=»5 and 5(1). As a matter of law, under the facts of this case, Leavell cannot recover from Jordan. The trial court did not err in granting defendant Jordan’s motion for summary judgment.

AFFIRMED.

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


author: BOOKOUT, Judge.

text:
    Willie James POPE v. STATE.
    7 Div. 410.
    Court of Criminal Appeals of Alabama.
    Oct. 21, 1975.
    Wilson, Propst & Isom, Anniston, for appellant.
    No brief for the State.
   BOOKOUT, Judge.

First Degree Murder. Sentence: Life Imprisonment.

The appellant was convicted July 31, 1975, and filed notice of appeal. Sentence was not suspended pending appeal. Pope was adjudged an indigent both at trial and on appeal. The trial court directed the court reporter to prepare an original transcript and three copies and estimated the court reporter’s fee to be $400, pursuant to Section 7, Act No. 525, Acts of Alabama 1963, approved September 16, 1963 [Title 15, Section 380(20)].

The case was submitted to this Court on the record proper without the court reporter’s transcript of the evidence. Counsel for appellant has filed a motion entitled, “MOTION TO REMAND OR IN THE ALTERNATIVE TO REVERSE THE INSTANT CONVICTION AND REMAND FOR A NEW TRIAL.”

The Circuit Clerk’s certificate, in part, reads as follows:

“I further certify that on July 31, 1975 the Court ordered a free transcript of Record and Evidence and Court appointed Appellant Counsel (Jack Wilson) for Defendant.
I further certify that No Transcript of Evidence has to date been filed by Court Reporter (Paul Williams) with undersigned Clerk — and—No Order of extension for preparing Transcript of Evidence has been filed of Record with said Clerk.”

An indigent’s right to appeal cannot be thwarted by inaction on the part of the court reporter. Brooks v. State, 283 Ala. 459, 218 So.2d 271 (1968); Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1956); Draper v. Washington, 372 U.S. 487, 83 S.Ct. 774, 9 L.Ed.2d 899 (1963).

It is the opinion of the Court that this cause should be remanded with directions to the trial court to correct the record so as to include a transcript of the evidence. The transcript of the evidence should be filed with the Circuit Clerk below within 60 days from this date, unless that period be extended by the trial court for cause, pursuant to statute. A complete record shall be filed with this Court by the Circuit Clerk, upon receipt of the court reporter’s transcript, as provided by law.

Remanded with directions.

All the Judges concur.

      . It is noted in paragraph 2 of the Clerk’s certificate that the offense is incorrectly stated. Since a new Clerk’s certificate will be necessary after remandment, we call the Circuit Clerk’s attention to that apparent clerical error.


author: PER CURIAM.

text:
    Willie James POPE v. STATE.
    7 Div. 410.
    Court of Criminal Appeals of Alabama.
    Feb. 3, 1976.
    Rehearing Denied March 9, 1976.

      Jack Wilson, Anniston, for appellant.
    William J. Baxley, Atty. Gen., and Gary R. Maxwell, Asst. Atty. Gen., for the State.
   PER CURIAM.

On appellant’s motion to reverse and remand and the State’s motion to show cause.

The appellant was convicted of first degree murder on July 81,1975, and sentenced to life imprisonment. He was adjudged an indigent both at trial and on appeal, and the trial judge ordered that he be furnished a free transcript on appeal pursuant to law. Sentence was not suspended pending appeal.

The case was submitted to this Court on the record proper without the court reporter’s transcript of the evidence. On October 6, 1975, counsel for appellant filed a motion entitled, “MOTION TO REMAND OR IN THE ALTERNATIVE TO REVERSE THE INSTANT CONVICTION AND REMAND FOR A NEW TRIAL.”

The circuit clerk on the record proper certified that no transcript of the evidence or extension of time had been filed within the time required by law. This Court on October 21, 1975, remanded with directions that the transcript should be filed with the circuit clerk within sixty days, unless that period be extended by the trial court for cause.

On January 5, 1976, the trial court attempted to extend the time for filing the transcript until January 12, 1976. Such extension was granted after the time set by this Court for filing and purported to extend the time twenty-two days beyond the deadline set by this Court.

On January 6, 1976, counsel for appellant again filed a motion to remand. On January 7, 1976, the Attorney General moved this Court to require the trial judge to show cause why the transcript of evidence had not been filed as ordered. On January 20, 1976, appellant filed a reply to the Attorney General’s motion.

I

While it is the duty of a non-indigent appellant to perfect his appeal by seeing that a proper record is filed within time, the law places no such burden upon an indigent appellant. The law requires that the mechanism of our criminal justice system function in such a manner as to provide the indigent appellant with the proper tools with which to perfect his appeal. As pointed out in our earlier opinion in this cause:

“An indigent’s right to appeal cannot be thwarted by inaction on the part of the court reporter. Brooks v. State, 283 Ala. 459, 218 So.2d 271 (1968); Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1956); Draper v. Washington, 372 U.S. 487, 83 S.Ct. 774, 9 L.Ed.2d 899 (1963).”

II

The court reporter failed to file a transcript of the evidence within sixty days of our order and failed to file a request for extension of time within that sixty day period. The transcript, which was filed twenty-two days late with the circuit clerk, contained a court reporter’s certificate to the effect that the transcript was reduced to typewriting from his original stenographic notes under his supervision and control and, “ . . . contains a full, true, and correct transcript of the testimony and proceedings as set out to the best of my ability.” (Emphasis supplied.)

Act No. 97, Section 1, Acts of Alabama 1956 (1st Special Session) approved February 9, 1956 (Title 7, § 827(1) Code Recompiled 1958), provides in part:

“The court reporter shall then promptly transcribe the evidence . . . certify the same and file it with the clerk within sixty days from the date on which the appeal was taken . . . (Emphasis supplied.)

The circuit judge, being the appointing authority, is under a duty to see that the court reporter functions properly. Pharr v. State, 45 Ala.App. 152, 227 So.2d 439 (1969). If the court reporter is unable to perform due to illness or other cause, the circuit judge should appoint a special reporter or use another court reporter in the same circuit if available, per Title 13, § 265, Code of Alabama 1940, Recompiled 1958 (1973 Cum.Supp.).

We are of the opinion that the certificate of the court reporter falls short of what Act No. 97, supra, requires. To certify means to attest authoritatively. Parham v. State, 34 Ala.App. 408, 40 So.2d 644 (1949); Bates v. Bates, 247 Ala. 337, 24 So.2d 440 (1946). Where the certificate of the court reporter shows his stenographic notes to have been transcribed into transcript form by someone else, albeit under his supervision and control, this Court and the appellant are entitled to an unqualified affirmation that the transcript is a full, true and complete record of the testimony. Admittedly, there is no statutory form for such certificate, however, where a citizen’s life or liberty depends upon our review of the record, due process requires that we have an accurate record to review. The burden is not upon the indigent appellant to see to this. The burden is upon the State, and it was placed there by the United States Constitution, Griffin v. Illinois and Draper v. Washington, supra, and by our legislature in Title 15, § 380(14) et seq. Code of Alabama Recompiled 1958 (1973 Cumulative Pocket Part).

The certification statute does not suggest that the court reporter may file a certificate that the transcript is accurate to the best of his ability. His ability, due to illness or other cause, may be so impaired that only a portion of the evidence is accurately transcribed. The record, once filed and after the statutory ten day period for notice of errors has run, should import a conclusive presumption of correctness upon which an appellate court may rely. Thus, the certificate should be worded in unequivocal terms.

To grant the State’s motion of January 7th and direct the trial judge to show cause why the transcript was not filed on time may apprise this Court of the reason for delay, but would not cure the denial of due process occasioned thereby.

On January 27, 1976, the State filed two additional motions; one requesting an extension of time for filing the transcript, and the other requesting that we direct the court reporter to, “amend his certificate by striking the phrase ‘to the best of my ability.’ ” The motions were submitted under Rule 11(c) and Rule 10(f), Alabama Rules of Appellate Procedure, respectively.

The instant appeal arose prior to the effective date of the new rules. The motion for extension of time does not set forth “cause” for extension, and it shows upon its face that the transcript was in fact filed (although late). The transcript is fatal for lack of a sufficient certificate. The motion to require the court reporter to amend his certificate is not well taken. Such a proce-' dure would not clear the suspicion already attached to the transcript. The court reporter’s certificate tells us he is uncertain that the transcript is fully accurate, and we will not tell him that he is certain and that he must so certify. An order to change the certificate would not, by magic, correct errors and omissions which may exist in the transcript itself.

The State’s motions are, therefore, overruled, and the appellant’s motion is hereby granted.

REVERSED AND REMANDED.

All the Judges concur.


author: MADDOX, Justice.

text:
    In re Willie James POPE v. STATE. Ex parte STATE of Alabama ex rel. ATTORNEY GENERAL.
    SC 1761.
    Supreme Court of Alabama.
    July 16, 1976.
    Rehearing Denied Sept. 10, 1976.

      William J. Baxley, Atty. Gen. and Gary R. Maxwell, Asst. Atty. Gen., for the State.
    Jack Wilson, Anniston, opposed, for respondent.
   MADDOX, Justice.

Defendant Pope, an indigent, was convicted of first degree murder. He appealed his conviction, and was given a free lawyer, and finally, was given a free transcript. Pope obviously failed to timely file a transcript of the evidence or request an extension of time within which to file. Nevertheless, the Court of Criminal Appeals remanded his cause to the Circuit Court with directions that a transcript of the evidence should be filed with the Circuit Clerk within sixty days. The transcript of the evidence, which was filed twenty-two days late with the circuit clerk, contained a court reporter’s certificate to the effect that the transcript contained a full, true, and correct transcript of the testimony proceedings as set out to the best of his ability. Pope excused his late filing of the transcript on the ground that the State had the burden to see that his transcript was not only filed in time, but that it was properly prepared. The Court of Criminal Appeals agreed with him, 345 So.2d 1382.

In remanding the cause, the Court held:

“While it is the duty of a nonindigent appellant to perfect his appeal by seeing that a proper record is filed within time, the law places no such burden upon an indigent appellant. The law requires that the mechanism of our criminal justice system function in such a manner as to provide the indigent appellant with the proper tools with which to perfect his appeal. As pointed out in our earlier opinion in this cause:
“ ‘An indigent’s right to appeal cannot be thwarted by inaction on the part of the court reporter. Brooks v. State, 283 Ala. 459, 218 So.2d 271 (1968); Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1956); Draper v. Washington, 372 U.S. 487, 83 S.Ct. 774, 9 L.Ed.2d 899 (1963).’ ”

Neither Title 15, § 380(14), Griffin, nor Draper, is authority for the court’s holding that the State is saddled with the burden of making sure that a transcript of the evidence, in every indigent case, is timely filed, and that it contains the proper certificate.

Title 15, § 380(14) et seq., merely provides a procedure whereby an indigent can receive a free transcript of the evidence. It does not exempt a defendant from the time filing requirements of law. The principles of both Griffin and Draper are to the effect that “[djestitute defendants must be afforded as adequate appellate review as defendants who have money enough to buy transcripts.” 351 U.S., at 19, 76 S.Ct., at 591; 372 U.S., at 488, 83 S.Ct. 774.

The Court of Criminal Appeals, by placing the burden on the State to see that a transcript is timely filed, and that it contains a proper certificate, has provided indigent defendants with a more adequate review than nonindigent defendants. That would be reverse discrimination. We reject it.

It is the duty of counsel for appellants to see that records pertaining to appeals are timely filed. Seals v. State, 282 Ala. 586, 213 So.2d 645 (1968), (an indigent case); Orum v. State, 286 Ala. 679, 245 So.2d 831 (1971). By reversing and remanding this cause, we are not foreclosing the Court of Criminal Appeals from deciding whether appellant s counsel did, in fact, substantially comply with the requirements of law and the rules of this Court, or shows good cause why he did not, under the particular facts of this case. See Orum v. State, supra.

REVERSED AND REMANDED.

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

ON REHEARING

Defendant, through his court appointed counsel, in his application for rehearing, states that this Court’s order takes the position that “the defendant had the duty of making the court reporter do something that the court reporter could not do.”

As we pointed out in the original opinion, the Court of Criminal Appeals, on remand, can determine whether the failure to get a transcript timely filed was the fault of the defendant. If the defendant was not at fault, that court can, under its supervisory powers, compel the preparation of a correct transcript, or can allow the defendant time to prepare a succinct statement of the evidence in lieu of a transcript. See International Bro. of Teamsters, etc. v. Hatas, 287 Ala. 344, 252 So.2d 7 (1971).

A destitute defendant must be afforded an adequate appellate review. The question is: If Pope had not been indigent, what steps would he have taken to get a transcript timely filed?

The recent decision of the Supreme Court of the United States, in Estelle v. Williams, 425 U.S. 501, 96 S.Ct. 1691, 48 L.Ed.2d 126 (1976), states the applicable principle:

. . Under our adversary system, once a defendant has the assistance of counsel the vast array of trial decisions, strategic and tactical, which must be made before and during trial rests with the accused and his attorney. Any other approach would rewrite the duties of trial judges and counsel in our legal system.”

The Court, on its own, noted that the original opinion, which reversed the judgment of the Court of Criminal Appeals, was not considered by the full Court. Therefore, on rehearing, the full Court did consider the original opinion and the additional matter written on application for rehearing, and concurs therein.

OPINION EXTENDED; APPLICATION FOR REHEARING OVERRULED.

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


text:
    Willie James POPE v. STATE.
    7 Div. 410.
    Court of Criminal Appeals of Alabama.
    Oct. 19, 1976.
    Rehearings Denied Nov. 16, Dec. 7, 1976.
   AFTER REMANDMENT

BOOKOUT, Judge.

First degree murder; sentence: life imprisonment.

The transcript of the evidence was filed twenty-two days late. In addition there is some question as to the accuracy of the transcript. The Supreme Court has held that the appellant’s appeal must be dismissed for failure to timely file a transcript of the evidence unless failure to file said transcript was not the fault of the appellant. Ex parte State; In re: Pope v. State (1976), Ala., 345 So.2d 1385. Also see Pope v. State (1975), Ala.Cr.App., 345 So.2d 1381; Pope v. State (1976), Ala.Cr.App., 345 So.2d 1382.

On January 5, 1976, the Circuit Judge of Calhoun County, Honorable William C. Bibb, in extending the time allowed to file a transcript of the evidence made the following finding:

“The Court finds the failure to file is not the fault of any party or any attorney in this cause.”

It is therefore the opinion of the Court that this cause should be remanded with directions to the trial court to correct the record so as to include a correct transcript of the evidence. The transcript of the evidence should be filed with the Circuit Clerk below within sixty days from this date, unless that period be extended by the trial court for cause pursuant to statute. A complete record shall be filed with this Court by the Circuit Clerk upon receipt of the court reporter’s transcript as provided by law. (Since this appeal was taken prior to December 1, 1975, the new Alabama Rules of Appellate Procedure do not apply.)

Either party may file objections to the transcript within ten days after the filing of the transcript with the Circuit Clerk. Title 7, § 827(1a), Code of Alabama 1940, Recompiled 1958. If a correct transcript can not be obtained, then the appellant must be allowed time to prepare a succinct statement of the evidence, in lieu of a transcript, pursuant to Title 7, § 827(3), Code of Alabama 1940, Recompiled 1958. See International Brotherhood of Teamsters, etc. v. Hatas, 287 Ala. 344, 252 So.2d 7 (1971). The parties should also file briefs on the merits.

The appellant is an indigent. Due to the peculiar circumstances which surround the failure of the court reporter to prepare and file a proper transcript of the evidence in this case, we would remand this case with the exact same directions had the appellant been a non-indigent.

REMANDED WITH DIRECTIONS.

All the Judges concur.

ON REHEARING

Through his brief on rehearing, appellant contends that it is impossible to obtain an accurate transcript or a statement in lieu thereof. While we have no reason to doubt this, it is not a matter appearing of record and this Court is bound by the record, not the allegations appearing in brief. Edwards v. State, 287 Ala. 588, 253 So.2d 513 (1971).

The trial court is the proper forum to determine whether or not it is possible to provide an accurate transcript or a statement in lieu of a transcript. If on remand to the trial court, appellant can support the allegations, as expressed in his brief on rehearing, the trial court should make a finding to that effect. The trial court is authorized to grant a new trial if its findings in this regard are favorable to the appellant. Swanson v. State (1976), Ala.Cr.App., 346 So.2d 1162.

OPINION EXTENDED; APPLICATION OVERRULED.

All the Judges concur.


text:
    In re Willie James POPE v. STATE. Ex parte STATE of Alabama ex rel. ATTORNEY GENERAL.
    SC 2262.
    Supreme Court of Alabama.
    Jan. 13, 1977.
   This cause having been duly submitted and examined and understood by the Court, IT IS CONSIDERED AND ORDERED that the Petition for Writ of Certiorari to the Court of Criminal Appeals, 345 So.2d 1388, be, and the same is hereby, dismissed as moot. NO COSTS TAXED.

Appeal dismissed, Ala.Cr.App., 345 So.2d 1390.