author: TORBERT, Chief Justice.

text:
    Virginia B. FEAZELL v. Randy CAMPBELL, a minor who sues through his next friend and parent, Annie Campbell. Virginia B. FEAZELL v. Annie CAMPBELL.
    SC 2680, SC 2692.
    Supreme Court of Alabama.
    May 19, 1978.

      William D. Russell, Jr. of Dortch, Wright & Ford, Gadsden, for appellant.
    Donald W. Stewart, Gadsden, for Randy Campbell and Annie Campbell.
   TORBERT, Chief Justice.

This appeal arises out of a collision between an automobile driven by appellant Virginia B. Feazell and a motorcycle driven by appellee Randy Campbell, who was fifteen at the time of the accident. Two suits were brought against Mrs. Feazell for damages for personal injuries sustained by Randy Campbell as a result of the collision, one by Randy Campbell, suing through his mother as next friend, and another by ap-pellee Annie Campbell, the mother. This second suit was brought under the provisions of Title 7, section 118, Code of Alabama 1940 (§ 6-5-390, Code 1975), which permits suits by the mother in certain enumerated circumstances for injuries to a minor child.

Randy Campbell’s complaint contained counts alleging negligence, wantonness, negligent transportation resulting in aggravation of injuries, and wanton transportation resulting in aggravation of injuries. Mrs. Campbell’s complaint alleged negligence and wantonness.

Mrs. Feazell pleaded the general issue and also the defense of contributory negligence to Randy Campbell’s complaint. To Mrs. Campbell’s complaint she pleaded the general issue.

The two cases were consolidated for trial. Following the hearing of the evidence, the jury returned a verdict and judgment in favor of Randy Campbell in the sum of $20,000.00. A separate verdict and judgment in favor of Mrs. Campbell was rendered by the jury for $10,000.00.

Motions for judgment notwithstanding the verdict, or, in the alternative, for new trial, were filed by Mrs. Feazell in both cases and were overruled by the trial court. This appeal, in which the two cases have been consolidated for review, then followed.

Mrs. Feazell first urges this court to reverse the jury verdict and judgment in favor of Mrs. Campbell, the mother, because the $10,000.00 award exceeds the amount of recoverable damages proven by Mrs. Campbell by competent evidence. However, this court must decline to consider the question of the excessiveness of the verdict on this appeal for the reasons hereinafter discussed.

A review of the record shows that none of the grounds assigned by Mrs. Feazell as the basis of her motion for judgment notwithstanding the verdict, or, in the alternative, new trial, in Mrs. Campbell’s action makes any reference to the alleged exces-siveness of the $10,000.00 verdict. We also note that the question of excessiveness of the verdict was never presented to the trial court, and, further, that the trial court did not direct the jury in the amount of the verdict. Thus, no ruling has been made by the trial court on the question here sought to be reviewed.

“Our cases make it clear that the question of the excessiveness of the jury’s verdict will not be considered or determined on appeal unless such question is first presented to the lower court which is usually done by motion for a new trial. The motion must specifically challenge or question the amount of the verdict as being excessive. § 811, Title 7, Code of 1940; Cook & Laurie Contracting Co. v. Bell, 177 Ala. 618, 59 So. 273; Central of Georgia R. Co. v. Chicago Varnish Co., 169 Ala. 287, 53 So. 832; Central of Georgia R. Co. v. Chambers, 197 Ala. 93, 72 So. 351.
“The obvious purpose of requiring the question of the excessiveness of the verdict to be first raised in the lower court, is to provide an opportunity for the trial judge to resolve the question and an opportunity for the appellee to file a remit-titur without the additional expense, inconvenience and delay of appeal and without burdening the Supreme Court with such a question raised for the first time on appeal.”

State v. Ferguson, 269 Ala. 44, 45, 110 So.2d 280, 281-82 (1959). See also State v. Long, 344 So.2d 754 (Ala.1977).

The second point urged as error by Mrs. Feazell involves the following portion of the trial court’s oral instructions to the jury:

“Now, of course, we have damages claimed in both suits. In one aspect they are claiming compensatory damages. . There are also claims for punitive damages. The purpose of awarding punitive or exemplary damages is to allow money recovery to the Plaintiff by way of punishment to the Defendant and for the added purpose of protecting the public by deterring the defendant and others from doing such wrongs in the future. The imposition of punitive damages is entirely discretionary with the Jury. Should you award punitive damages in fixing an amount you must take into consideration the character and the degree of the wrong as shown by the evidence in the case and the necessity of preventing similar wrongs.”

As a general rule, a parent cannot recover punitive damages in a suit under Title 7, section 118, Code of Alabama 1940 (§ 6-5-390, Code 1975), for personal injuries to a minor child. Bube v. Birmingham Railway, Light & Power Co., 140 Ala. 276, 37 So. 285 (1904). According to Mrs. Fea-zell, the above quoted statement by the trial court misled and confused the jury by implying that, like her son, Mrs. Campbell could recover punitive damages with respect to the wanton count in her complaint. This argument is predicated upon the supposition of Mrs. Feazell that the jury included some amount as punitive damages in its general verdict and $10,000.00 award.

Mrs. Feazell failed to properly preserve the alleged error in the trial court instruction for our review.

Rule 51 of the Alabama Rules of Civil Procedure states in pertinent part the following:

“No party may assign as error the giving or failing to give a written instruction, or the giving of an erroneous, misleading, incomplete, or otherwise improper oral charge unless he objects thereto before the jury retires to consider its verdict, stating the matter to which he objects and the grounds of his objection.”

At the conclusion of the trial court’s oral instruction, counsel for Mrs. Feazell entered the following objection to the oral charge given by the trial court:

“. . . The Defendant would further except to that portion of the Court’s oral charge wherein it read Alabama Pattern Jury Instruction 11.03 which defines punitive damages.”

This court has stated that the purpose of stating grounds for objections is to give the trial court an opportunity to correct the instructions and to avoid the waste of time and money from reversals that result from oversight, technical omissions, or remedial mistakes. Gardner v. Dorsey, 331 So.2d 634 (Ala.1976). We find that the objection in the present case did not adequately inform the trial judge of his error nor afford him the opportunity to correct it. The objection was too general and failed to specifically point out alleged errors in the oral charge.

We further note that if Mrs. Fea-zell thought that the instruction of the trial court could possibly mislead or confuse the jury, explanatory charges should have been requested. The law was not incorrectly stated by the trial court. Thus, having failed to request either an explanatory or a correct complementary charge, Mrs. Feazell cannot complain of these matters on appeal. Dees v. Gilley, 339 So.2d 1000 (Ala.1976); Horace v. VanBlaricon, 291 Ala. 530, 283 So.2d 421 (1973); Marigold Coal, Incorporated v. Thames, 274 Ala. 421, 149 So.2d 276 (1963).

The three final allegations of error raised by Mrs. Feazell on this appeal concern the judgment and $20,000.00 jury verdict in favor of Randy Campbell. Mrs. Feazell asks this court to reverse that judgment and jury verdict because the trial court erroneously submitted to the jury the issue of alleged aggravation of Randy Campbell’s injuries due to the negligent and/or wanton conduct of Mrs. Feazell, erroneously submitted the wantonness count of Randy Campbell’s complaint to the jury, and, finally, erroneously instructed the jury that Randy Campbell could recover damages for the loss of earnings and future earning capacity. We will consider these contentions seriatim.

It is the position of Mrs. Feazell that she was under a statutory duty to render aid and assistance to Randy Campbell pursuant to the provisions of Title 36, section 128, Code of Alabama 1940 (§ 32-10-2, Code 1975). Thus her actions in transporting Randy Campbell to the physician following the accident were not voluntarily undertaken by her and no common law liability for negligent and/or wanton performance of actions voluntarily assumed arose.

We have found no cases construing the duty to render aid and assistance under Title 36, section 128. However, whether or not Mrs. Feazell voluntarily or involuntarily undertook to help Randy Campbell, we find that she had a duty to render such aid and assistance in a reasonable non-negligent manner.

. . The common law is the base upon which all of the laws of this State have been constructed, and when our courts are called upon to construe a statute, — when they are called upon to ascertain and declare the legal effect and meaning of legislative enactment, — they must read the statute in the light of the common law. Cloverdale Homes v. Town of Cloverdale, 182 Ala. 419, 62 So. 712, 47 L.R.A., N.S., 607. ‘The presumption is that the legislature does not intend to make any alteration in the law beyond what it explicitly declares, either in express terms or by unmistakable implication, and that it does not intend to overthrow fundamental principles, infringe rights, or depart from a general system of law without expressing its intention with irresistible clearness.’ Duncan v. Rudulph, 245 Ala. 175, 16 So.2d 313, 314.”

Weaver v. Hollis, 247 Ala. 57, 60, 22 So.2d 525, 528 (1945). See also Beasley v. McDonald Engineering Co., 287 Ala. 189, 249 So.2d 844 (1971).

Title 36, section 128 alters the common law by adding the affirmative duty to render aid, if it is apparent such is necessary, in cases where death or personal injury result from a motor vehicle accident. However, the statute does not, either expressly or impliedly, abrogate the common law duty to render such aid in a reasonable non-negligent manner. Thus we hold that the trial court properly submitted the issue to the jury for its determination as to whether Mrs. Feazell breached such duty by the manner in which she transported Randy Campbell to the physician and whether Randy Campbell suffered injury as a consequence of that breach.

The contention of Mrs. Feazell that the trial court erroneously allowed the wanton count of Randy Campbell’s complaint to be submitted to the jury is without merit.

Wantonness is the conscious doing of some act or omission of some duty under knowledge of existing conditions and conscious that from the doing of such act or omission of such duty injury will likely or probably result. Griffin Lumber Co. v. Harper, 247 Ala. 616, 25 So.2d 505 (1946); First Nat. Bank of Dothan v. Sanders, 227 Ala. 313, 149 So. 848 (1933); Duke v. Gaines, 224 Ala. 519, 140 So. 600 (1932).

In Sparks v. Milligan, 295 Ala. 358, 361, 330 So.2d 417, 418-19 (1976), this court quoted the following from Jackson v. Cook, 275 Ala. 151, 155, 153 So.2d 229, 232 (1963):

“[i]n considering the question of the sufficiency of the evidence of wantonness to be submitted to the jury, this court must accept the adduced evidence most favorable to the plaintiff as true, and indulge such reasonable inferences as the jury was free to draw from the evidence.”

A small portion of the evidence presented at trial was that the site of the accident was a steep mountainous road at or near a curve; that Mrs. Feazell had travelled the road often and was therefore familiar with the area where the accident occurred; that Mrs. Feazell knew there were no traffic signs along the route which was travelled by Randy Campbell; that Mrs. Feazell was proceeding down the mountainous road with her automobile in low gear and her foot off the brakes when the accident occurred; and, finally, though conflicting testimony was presented, that Mrs. Feazell was operating her automobile on the left side of the road.

Giving this evidence the most favorable construction in support of the jury verdict, we are not persuaded that the wanton count was unsupported by the evidence. Therefore, no error was committed by the trial court in allowing this issue to be submitted to the jury. -

Lastly, we do not agree with Mrs. Feazell that the trial court erroneously instructed the jury that damages could be awarded to Randy Campbell for loss of earnings and future earning capacity.

Loss of earnings and future earning capacity consequent to an injury are proper elements of damages allowable in a personal injury action. Fitzpatrick v. Dean, 278 Ala. 284, 177 So.2d 909 (1965); Southern Railway Company V. Smith, 268 Ala. 235, 105 So.2d 705 (1958); Birmingham Electric Co. v. Cochran, 242 Ala. 673, 8 So.2d 171 (1942). Further, assessment of damages is left largely to the discretion of the jury. Rosen v. Lawson, 281 Ala. 351, 202 So.2d 716 (1967); F. W. Woolworth Company v. Bradbury, 273 Ala. 392, 140 So.2d 824 (1962); Clark v. Hudson, 265 Ala. 630, 93 So.2d 138 (1956).

Testimony was given at trial by the physician who treated Randy Campbell to the effect that Randy Campbell had suffered permanent injury as a result of the accident. Further, mortality tables were introduced to show Randy Campbell’s life expectancy. Evidence as to his earning capacity was also presented. We therefore find that the trial court was justified in instructing the jury on this point.

The judgments of the lower court are hereby affirmed.

■ AFFIRMED.

BLOODWORTH, FAULKNER, ALMON and EMBRY, JJ., concur.


source: Caselaw Access Project

author: EMBRY, Justice.

license: Public Domain

text:
    Tevis KNIGHTEN v. Louise H. DAVIS, a person of unsound mind, who sues by her next friend, Emily Scott.
    77-35, 77-35X.
    Supreme Court of Alabama.
    May 19, 1978.

      William D. Hudson, Gadsden, for appellant.
    Virgil M. Smith, Gadsden, for appellee.
   EMBRY, Justice.

This appeal by Tevis Knighten is from a judgment cancelling a deed to her brother from Louise Davis. She, Louise Davis, by next friend, is plaintiff in the action, and cross-appeals from that portion of the judgment requiring her to make restitution of the $3,000 recited consideration for the conveyance. We affirm the judgment of the trial court as entered.

The trial court heard the evidence without a jury. Its findings and conclusions found nr the judgment provide an excellent summary of the case:

“The plaintiff, Louise Davis, has sued by -her next friend to cancel a-deed which -she executed on October 6, 1972. The deed conveys a certain improved real property to J. P. Knighten reserving to Louise Davis a life estate in a portion of the property. The plaintiff contends that she lacked the mental capacity to make the conveyance. J. P. Knighten is now deceased. His sister, Tevis Knighten, obtained J. P. Knighten’s interest in the property as devisee in his will.
“J. P. Knighten was a friend of the plaintiff and they had dated regularly for at least two years before the deed was executed. The deed recites a consideration of $3,000 which was the actual consideration. At the time of the conveyance the property had a value of $30,000.
“Numerous witnesses testified that they were acquainted with the plaintiff, who is age 62, and that she has been incapable of transacting business for many years. After suffering a cerebral hemmorage in 1948, the plaintiff has experienced blackout spells periodically and has exhibited speech impairment and mental incapacity. For many years, she has lived with 12 or more dogs and cats, buying expensive food for them when she was without sufficient food for herself. Her abnormal habits also have included walking to the cemetery in the rain to visit the grave of her deceased husband and a dog buried at the foot of his grave.
“A psychiatrist, Dr. Frederic W. Feist, testified that he had examined the plaintiff in 1969 and again in 1974. He administered various tests including an IQ test on which the plaintiff scored less than 53. This indicated a mental age of below eight years. He stated that the plaintiff did not have the mental capacity on either occasion to transact business and that, in his judgment, she could not have had such mental capacity at any time between his examinations due to the permanent nature of her mental impairment.
“On the other hand, the defendant offered evidence tending to show that the plaintiff was competent. A banker testified that the plaintiff had done banking business with his bank for 20 years, had an active checking account, and had borrowed small amounts of money from time to time. The attorney who prepared the deed testified that he had handled business matters for the plaintiff from time to time and that in his opinion she was capable of transacting business on the day the deed was executed. In spite of the very creditable testimony of these witnesses, the evidence taken as a whole points to the inescapable conclusion that the plaintiff was not mentally capable to make the conveyance in question. This conclusion is supported not only by the psychiatrist’s findings and the irrational behavior of the plaintiff but also the drastically insufficient consideration received by the plaintiff.
“Because of the personal relationship which existed between the plaintiff and J. P. Knighten at the time of the conveyance, the inadequate consideration, and the plaintiff’s mental deprivity, equity demands that the deed be cancelled.
“In order to achieve a balancing of the equities, the cancellation of the deed shall be conditioned upon a return by the plaintiff to the defendant the sum of $4409.64, which represents .the $3,000 purchase price -paid by J. P. -Knighten plus $1409.64 paid by the defendant to satisfy a mortgage encumbering the property. Upon the plaintiff’s payment of this sum to the defendant within thirty (30) days from this date, the court will enter a final decree cancelling the deed.”

From the final judgment to these findings and conclusions Tevis Knighten appeals and Louise Davis cross-appeals.

The Appeal

Tevis Knighten advances two reasons for reversal of the trial court’s judgment: (1) Error in overruling her objections to questions propounded to three witnesses; and (2) Insufficiency of competent evidence to support the judgment.

Tevis Knighten contends that three witnesses for Louise Davis testified over objection as to their opinion of the insanity or lack of mental capacity of Louise Davis. She submits it was error to allow this testimony because of the failure of each witness to 'give the basis for the opinion prior to stating the opinion; also because the reasons given after were insufficient upon which to base that opinion.

Conceding, for sake of argument, the trial court did err in overruling Tevis Knight-en’s objections, we consider the action of the trial- court to be harmless error. Rule 45, ARÁP, provides that no judgment may be reversed on the ground of improper admission of evidence unless, after examination of the entire case, it should appear the error complained of has probably injuriously affected substantial rights of the parties. We find no such error. As will be seen from the following, there was ample evidence to support the trial court’s judgment cancelling the deed without consideration of the testimony contended to be erroneously admitted.

As is well recognized, where evidence is taken ore tenus every presumption will be indulged in favor of the correctness of the action of the trial court and its findings and judgment will not be disturbed on appeal unless clearly erroneous and without supporting credible evidence.

Knighten does not take issue with this rule but contends the evidence is insufficient to support the conclusion of the trial court on the issue of Louise Davis’ mental capacity. We disagree.

We find ample support in the testimony of the psychiatrist for the trial court’s conclusion that Louise Davis was not mentally competent to make the conveyance to J. P. Knighten. That testimony, as summarized in the trial court’s findings, and sustained by the record, was sufficient to make the evidence regarding the mental capability of Louise Davis conflicting. The trial judge resolved that conflict in favor of Louise Davis and we cannot find from the record where that conclusion was either clearly erroneous or manifestly unjust.

The Cross Appeal

Louise Davis, by next friend, has cross-appealed from that portion of the trial court’s judgment requiring her to return to Tevis Knighten $3,000; the consideration paid by her deceased brother, J. P. Knight-en.

Louise Davis contends restitution of the $3,000 should not have been required as a condition precedent to the cancellation of the deed because J. P. Knighten knew, or should have known, of her mental condition prior to the execution of the deed. Louise Davis relies heavily upon this court’s holding in Ivey v. May, 231 Ala. 339, 164 So. 732 (1935), that:

“ * * * a man who deals with one of unsound mind, and having notice or knowledge of such insanity at the time, does so at his peril. That such an one cannot be accorded the rights of a bona fide purchaser, nor is he, ordinarily, entitled to restitution, as a condition precedent to the cancellation of the contract. * *

We are in complete agreement with the rule of law stated in Ivey; however, it is obvious from the judgment entered by the trial court that the instant action is distinguishable from the circumstances presented in Ivey. In Ivey, the evidence was of such convincing proportions as to reach a moral certainty that the grantee knew at the time of execution of the deed that the grantor was of unsound mind and wholly incapacitated to transact any kind of business. Here the evidence of notice or knowledge upon the part of J. P. Knighten reaches no such proportions. Implicit in the trial court’s judgment is the finding that J. P. Knighten did not have notice or knowledge of Louise Davis’ mental incompetency; hence the trial court’s decision to adhere to the well recognized general equitable principle which requires restoration of the consideration received upon cancellation of a deed for the incompetency of the grantor. See 13 Am.Jur.2d § 41, p. 528. This principle requires that the other party to the transaction be restored to the same position which he occupied prior to execution of the deed.

Holding, as we do, that there was ample evidence to support the trial court’s judgment, as entered, that judgment is due to be affirmed.

AFFIRMED.

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


author: FAULKNER, Justice. JONES, Justice

text:
    SOUTHERN LIFE AND HEALTH INS. CO., a corp. v. Rebecca WHITMAN. SOUTHERN LIFE AND HEALTH INS. CO., a corp. v. Samuel J. WHITMAN et al.
    77-61, 77-62.
    Supreme Court of Alabama.
    May 19, 1978.
    Ollie L. Blan, Jr., Birmingham, John F. Dillon, IV, Alexander City, Kenneth E. Little, Birmingham, for appellant.
    Ernest C. Hornsby and Steven F. Schmitt, Tallassee, for appellees.

      Ira L. Burleson and Robert H. Neill, Birmingham, for Ass’n of Alabama Life Ins. Companies, amicus curiae.
   FAULKNER, Justice.

Plaintiffs brought actions on the insurance contract and for fraud against Southern Life and Health Insurance Company on each of two $1,000 industrial life insurance policies. Southern Life appeals from the jury award of two $1,000,000 judgments. We reverse and remand.

Mr. Whitman, a 63 year old man with numerous health problems, received two unsolicited'^ROQQ “Instant issue” policies from •the defendant, through its soliciting agent, Redding. When Whitman indicated that there must have been a mistake because of his bad health, and, at any rate, he could not afford the premiums, Redding suggested that Whitman’s children purchase the policies. Redding filled out the application in Whitman’s presence, erroneously stating that the insured was in good health and had not been attended by a .physician during the past three years. With Whitman’s consent, Redding sold one policy to Samuel and Kathleen Whitman and the other to Rebecca Whitman (who were all aware of the insured’s health), naming the purchasers as beneficiaries.

The effective date of the policies was September 1, 1974. The insured died on August 12, 1975. Although Southern Life honored several older policies on the deceased, they denied coverage on these two policies because of the insured’s bad health and refunded the premiums. While not found in the insured’s file when the policies were approved, Southern Life allegedly had •issued a “bad risk” card on the insured.

Plaintiffs filed suits on each policy, asserting a claim on the policies in the amount of $1,000 as Count I, and seeking under Count II $2,500,000 punitive damages for fraud and deceit on the part of the defendant in inducing the plaintiffs to purchase the policies. The actions were consolidated for a jury trial.

At trial, the following evidence of the defendant’s financial position was admitted over defendant’s objection for the express purpose of aiding the jury in its assessment of punitive damages:

“Q. Can you tell the jury, how much money, at the end of 1976, that is, December 31st, 1976, was in unassigned funds, or what we call, surplus.
“A. The total surplus, as of December 31st, 1970, was $7,646,054.00.
“Q. Is that, December 31st, 1976 surplus figure, the latest figure the Department of Insurance, has?
“A. It is.
“Q. Can you tell the jury, in accordi-nace fsic] with their December 3Íst, 1976, annual statement, what the net income of Southern Life and Health Insurance Company was, after they paid their Federal Income Tax.
“A. Net income after Federal Income Taxes, for that calendar year, 1976, was $2,539,241.00.”

The trial court granted a directed verdict for the defendant on Count I and submitted Count II to the jury. The jury returned two $1,000,000 verdicts for the plaintiffs. Defendant’s motion for Judgment Notwithstanding the Verdict or in the alternative for New Trial was denied.

Appellant raises numerous contentions of reversible error. Because of the extreme prejudice created by the evidence of the defendant’s wealth, reversal is mandated, and consideration of the remaining errors is pretermitted.

Our cases have long held that evidence of the defendant’s wealth is highly prejudicial and, therefore, inadmissible. Alabama Fuel & Iron Co. v. Williams, 207 Ala. 99, 91 So. 879 (1921) (dicta); Long v. Seigel, 177 Ala. 338, 58 So. 380 (1912); Southern Car & Foundry Co. v. Adams, 131 Ala. 147, 32 So. 503 (1901); Ware v. Cartledge, 24 Ala. 622, 60 Am.Dec. 489 (1854). Cf. Miller v. Dacovich, 12 A.B.R. 469 (1978); Pool v. Devers, 30 Ala. 672 (1857); Adams v. Adams, 29 Ala. 433 (1856). These cases recognize no distinction between situations involving compensatory and punitive damages.

In Ware, the plaintiff was permitted to prove, over objection, that the defendant possessed property valued at $20,000. Reversing the trial court, this court said that if wealth of a defendant is permitted then common justice requires a converse rule to prevail in the case of poor defendants. Justice Ligón wrote that common sense revolts at the adoption of such a rule. “For sad would be the fate of that country, whose laws conceded to the insolvent bully, seducer, or slanderer, the privilege of perpetrating his wrongs with comparative impunity, under assurance that, when sued for his practices, the damages would be graduated to his present ability to pay them, and consequently would be merely nominal. No sound principle of law tolerates such a practice.” (Citing cases.) Not only have our cases held that the wealth of a defendant is not admissible, but also have held inadmissible the poverty of a plaintiff. In Pool this court said that a plaintiff’s being poor is not a legitimate matter for the consideration of the jury in any point of view.

While we recognize that other jurisdictions do permit the introduction into evidence the wealth of a defendant, we adhere to our rule of excluding evidence of wealth of the defendant. Even though the rule was announced by this court in 1854, we opine that it is sound today — and for the same reason. Liability for damages cannot be determined by the economic condition of either party. Cf. Allison v. Acton-Etheridge Coal Co., Inc., 289 Ala. 443, 268 So.2d 725 (1972).

For permitting evidence of wealth of the defendant to be introduced at the trial, the judgment is reversed, the cause is remanded, and a new trial is ordered.

REVERSED AND REMANDED.

BLOODWORTH, ALMON and EMBRY, JJ., concur.

JONES, J., concurs in the result.

JONES, Justice

(concurring in the result):

I concur in the result to reverse and remand on the same ground addressed by the majority opinion (for the error in permitting evidence of Defendant’s wealth); but I do not agree with the reasons stated therein for rejecting this evidence. On the basis of pure logic, it is difficult, if not impossible, to refute Appellee’s contention that the financial condition of Defendant is relevant, and thus admissible, on the issue of the adequacy of punitive damages. Surely, if the avowed purposes of punitive damages (punish the defendant and deter others) are to be effectuated, logic dictates that the fact finder be informed of defendant’s worth. And the logic of this proposition is no less compelling when applied to the poor defendant.

Why then, do I agree to reverse the trial Court for admitting such evidence? First because there is a third consideration essential in fixing punitive damages — the enormity (i. e., the character and degree) of the wrong (see APJI Civil 1103 and “References” thereunder); and, second, because the prejudicial effect of such evidence on the fact-finding process as to the liability issue outweighs the logic that otherwise compels its admission.

If our Rules of Civil Procedure provided for bifurcated proceedings in which damages were assessed in a hearing separate from the liability issue, then, certainly, evidence of defendant’s worth, accompanied with appropriate instructions on the enormity of the wrong, would be admissible. Absent this “if,” however, the inflammatory nature of such evidence (a two-edged sword depending on the wealth or poverty of the defendant), impugns the constitutional guarantee of a fair trial.

One final observation: Judicial consideration of the relative worth of the defendant, coupled with due consideration of the nature and gravity of defendant’s wrong, in my opinion, has a field of operation in the context of an “excessive damages” ground of a post-trial motion.


author: BLOODWORTH, Justice.

text:
    Morris E. MIMS and Effie Mae Mims v. LOUISVILLE TITLE INSURANCE COMPANY, a Stock Company.
    77-219.
    Supreme Court of Alabama.
    May 19, 1978.
    Francis W. Speaks of Speaks & Burnett, Clanton, for appellants.
    Lawrence F. Gerald, Jr., William D. La-tham, Clanton, for appellee.
   BLOODWORTH, Justice.

Appellants, Morris E. and Effie Mae Mims, appeal from the grant of a motion for summary judgment against them in favor of appellee, Louisville Title Insurance Company. We affirm.

In January, 1973, appellants Mims purchased an insurance policy from appellee which insured the title to the following property:

“3. The land referred to in this policy is situated in the County of Chilton, State of Alabama, and is described as follows: “Blocks 1, 2, 3, 4 and 5 of Grandview Estates Subdivision as per Map or Plat of said Subdivision recorded in Map Book 4 at Page 169 in the Office of the Judge of Probate of Chilton County, Alabama.”

The insurance policy contained, inter alia, the following exclusion:

“2. Unrecorded easements, if any on, above or below the surface; and any discrepancies or conflicts in boundary lines, and shortage in area or encroachments, if any, which a correct survey or an inspection of the premises would disclose.”

In October, 1976, Alton Cleekler and his wife, Betty Inez Cleekler, filed suit against appellants Mims, alleging that the description of the property, appearing above, was erroneous. Notice of the pending suit was given appellee Louisville Title, which denied liability under the policy, and, therefore, appellants incurred the costs of defense of the lawsuit and corrected surveys.

On May 30, 1977, appellants Mims brought suit against appellee Louisville Title seeking damages for the costs which they had incurred.

Appellants’ original complaint alleged, in pertinent part, that they had incurred expenses which were covered by the policy as a result of the fact “[t]hat the title of said property is defective in that there was a mistake in the survey of said blocks in that there was a mistake in the sizes and descriptions of said block and a mistake in the location of the streets on said survey.” Ap-pellee Louisville Title filed a motion to dismiss, which was granted, although appellants were granted leave to amend their complaint.

Subsequently, appellants filed an amended complaint, striking the original complaint in its entirety. In its place, appellants alleged, inter alia, “[t]hat the property as insured did not vest in Morris E. Mims and wife, Effie Mae Mims, a fee simple title in said lands as described in said policy.”

Appellee answered appellants’ complaint by denying that fee simple title was not vested in appellants and by attaching a copy of the insurance policy. Appellee then moved for summary judgment on the basis of the pleadings and the insurance policy. This motion was granted. This appeal resulted.

When a movant makes a motion for summary judgment, the burden is upon him to show that there is no genuine issue of material fact left in the case. Ray v. Midfield Park, 293 Ala. 609, 308 So.2d 686 (1975). Moreover, on a motion for summary judgment all reasonable inferences from the facts are viewed most favorably to the nonmoving party. Tolbert v. Gulsby, 333 So.2d 129 (Ala.1976). Additionally, if there is a scintilla of evidence supporting the nonmoving party, a summary judgment is inappropriate. Wilbanks v. Hartselle Hospital, 334 So.2d 870 (Ala.1976).

We cannot agree with the appellants that the application of these rules to the case at bar requires reversal.

When a motion for summary judgment is made and supported, an adverse party may not rest upon the mere allegations or denials of the pleadings. In fact, it can be perilous for the opposing party neither to proffer any countering evidence nor to file an affidavit. Ray v. Midfield Park, supra. Since the purpose of a motion for summary judgment is to test evidence to determine if any real issue exists, the failure of the party opposing the motion to offer any affidavits or other testimony to contradict the evidence presented by the moving party leaves the court no alternative but to consider that evidence uncontroverted. Donald v. City National Bank, 295 Ala. 320, 329 So.2d 92 (1976).

The facts in this case were not controverted. The trial judge’s grant of appel-lee’s summary judgment motion was proper as a matter of law in that assuming a survey was made, and further assuming said survey was improper as appellants allege, the plain language of the policy’s exclusion renders the exclusion appropriate. Thus, appellee was not responsible for the alleged defects.

For the foregoing reasons, therefore, this case is due to be affirmed.

AFFIRMED.

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


author: HOLMES, Judge.

text:
    Jeannelle CONDRY, as Administratrix of the Estate of J. W. Condry, Deceased v. JONES FARM EQUIPMENT COMPANY.
    Civ. 1273.
    Court of Civil Appeals of Alabama.
    May 17, 1978.
    Denny L. Holloway of Smith & Smith, Dothan, for appellant.
    William L. Lee, III and Stephen T. Ether-edge of Lee & Mclnish, Dothan, for appel-lee.
   HOLMES, Judge.

This is a workmen’s compensation case. The trial court found the issues in favor of the employer. The employee appeals and we affirm.

The dispositive issues raised by the employee are: 1. Whether the trial court failed to comply with Tit. 26, § 304 [now, Code of Ala.1975, § 25-5-88] in that the trial court did not make a “sufficient statement of the facts and conclusions of law. . . . ”

2. Whether the trial court erred in refusing to find the employer liable for certain medical expenses. The trial court’s action in this regard was bottomed on the premise that Tit. 26, § 293 [Code of Ala. 1975, § 25-5-77], was not complied with by the employee. We find the trial court did not err in either instance and affirm.

I

The trial court’s “findings” and conclusions are as follows:

“JUDGMENT
“The matters before the Court are the Plaintiff’s complaint wherein he claims benefits under the Workmen’s Compensation laws of this state; the answer of Defendant presenting its defenses; stipulations of facts entered into by the parties in open Court; testimony of witnesses for Plaintiff and Defendant heard orally by the Court on March 21, 1977; and depositions of Dr. J. C. Serrato, Jr., Dr. William B. Hanson, Dr. William I. Silvernail, Jr. and Dr. Furnie W. Johnston. Upon hearing the testimony of the said witnesses and having read and considered the above mentioned depositions, the Court finds that the Plaintiff, J. W. Condry, was employed by the Defendant on January 27, 1976, and was working within the line and scope of his employment for Defendant at its place of business in Houston County, Alabama, on that date, when he was involved in an accident which resulted in an injury to him. The Plaintiff was earning an average weekly wage of $100.00 at the time this injury was sustained. The Plaintiff was referred to Dr. William Hanson and his condition was diagnosed as a lumbar strain. Plaintiff was treated on a regular basis by Dr. Hanson until April 14, 1976, at which time he was told to return to work, which he failed or refused to do. Subsequently Plaintiff saw Dr. Hanson on three different occasions and Dr. Fur-nie Johnston on one occasion. The visits to Dr. Serrato were without the authorization of the Defendant. Based upon this medical testimony, the Court finds that the Plaintiff J. W. Condry, suffered a temporary total disability, to-wit: a lumbar strain for a period of eleven weeks and two days (from January 27, 1976, through April 14,1976) for which he has been compensated by Defendant in accordance with the law. Further, the Court finds that all Plaintiff’s medical expenses in connection with this temporary total disability have been paid in full by the Defendant. The Court finds that the Plaintiff suffered no permanent disability as a result of the accident on January 27, 1976, and is due no further compensation from Defendant under the law of this state, nor is the Defendant liable for the medical charges of Dr. J. C. Serrato, Jr. of Columbus, Georgia, or the Cobb Memorial Hospital in Phenix City, Alabama. It is therefore,
“ORDERED, ADJUDGED AND DECREED BY THE COURT that the relief sought by Plaintiff in his complaint be, and the same is hereby, denied. Plaintiff’s complaint is dismissed. The costs are hereby taxed against Plaintiff, for which execution may issue.
“THIS the 24th day of March, 1977.”

We find the above to be in substantial compliance with § 304 so far as making the required findings of fact and conclusions of law. We cannot distinguish the above with those “findings” and conclusions that we approved in Lingo v. Dixie Veneer Co., Ala. Civ.App., 349 So.2d 591 (1977).

We would be remiss in not commenting that while no specific issue is raised as to whether the evidence supports the above “findings” and “conclusions,” this court has carefully reviewed the record with this in mind. While a different conclusion could have been reached by the learned trial judge, there is evidence to support the conclusion that the employee suffered no permanent disability as a result of the job related accident.

II

The record reveals that the employee obtained medical treatment from several physicians provided for by the employer. Apparently, becoming dissatisfied with his improvement he sought the medical service of a physician of his own choosing. There is no evidence in the record to indicate that the employer was advised regarding this event.

This court has recently written to the effect of Tit. 26, § 293. See U.S. v. Bear Bros., Inc., Ala.Civ.App., 355 So.2d 1133 (1978).

The statute in pertinent part is as follows:

“In addition to the compensation herein provided, . . the employer shall pay the actual cost of reasonably necessary medical and surgical treatment and attention ... as may be obtained by the injured employee during the first four years of disability . . . . If the employee is dissatisfied with the initial treating physician selected by the employer and if further treatment is required, the employee may so advise the employer and in such event the employee shall be referred to a second physician selected by the employer. In the event surgery is required, if the employee is dissatisfied with the designated physician, he may so advise the employer and in such event the employee shall be referred to a second physician selected by the employer. . . . ”

Continuing, the statute states:

“[I]f the employer furnished medical and surgical attention and supplies during [the] four-year period he shall not be liable under this section, except for such of said services and supplies as may, in an emergency, be procured by the employee elsewhere . .

Judge Bradley of this court, in construing the above quoted statute, stated as follows:

“The above quoted provision indicates that with the exception of emergency care, the employer has the right to select the medical or surgical attendant who will treat the employee. Moreover, the statute provides that if the employee is dissatisfied with the physician selected by the employer, he should advise the employer of this fact so that the employer can select another physician. Accordingly, under the language of section 293 requiring an employee to advise his employer if he is dissatisfied with the employer’s physician and permitting the employer to select the medical or surgical attendant of his choice, the employer is not liable for the costs of medical or surgical treatment obtained by the employee without justification or notice to the employer. 99 C.J.S. Workmen’s Compensation § 273; 82 Am.Jur.2d Workmen’s Compensation § 391; 2 Larson’s Workmen’s Compensation Law, Benefits § 61.12.2” [Footnote omitted.] 355 So.2d at 1137-38.

In this instance, the record is void of any permission or authorization by the employer for the questioned medical care. Nor is there evidence of notice to the employer that the employee was dissatisfied with the physician or physicians selected by the employer.

In view of the above, the trial court committed no error in this regard.

The case is due to be and is affirmed.

AFFIRMED.

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


author: WRIGHT, Presiding Judge.

text:
    Norman ALEXANDER v. ALABAMA STATE TENURE COMMISSION.
    Civ. 1410.
    Court of Civil Appeals of Alabama.
    May 17, 1978.

      W. Troy Massey, Montgomery, for appellant.
    Robert C. Campbell, III, Sp. Asst. Gen., Mobile, for the Alabama State Tenure Commission.
   WRIGHT, Presiding Judge.

This is a teacher tenure case.

Norman Alexander, a teacher with continuing service status as an employee of the Mobile County School System, filed an appeal with the State Tenure Commission under Section 16-24-37, Code of Alabama (1975) after denial of a hearing by the Board of School Commissioners.

After consideration of the petition of Mr. Alexander and answer by the Mobile Board of School Commissioners, together with briefs of counsel and oral argument, the Tenure Commission found Mr. Alexander had resigned from his employment and the Board did not unlawfully deny him a hearing. Mandamus to circuit court was denied and Alexander appealed to this court.

Section 16-24-37, Code of Alabama (1975) provides for a direct appeal to the Tenure Commission when a hearing has been denied by the local board of education as required by Section 16-24-6 or 16-24-9. In summary, the statute says: The teacher shall state facts as to whether the board of education has complied with the law. The Board may answer and deny the facts set out by the teacher. The Commission shall review the teacher’s request and the Board’s answer or denial and shall determine, with or without hearing, whether the provisions of Section 16-24-6 or 16-24-9 have been complied with. Based upon its findings the Commission shall (1) order a hearing before the local Board; (2) rescind the action of the Board; (3) sustain the action of the Board. Action taken shall be final to the same extent as any other action of the Commission provided by statute.

The Tenure Commission heard no testimony of witnesses, but the petition of Alexander, the answer of the Board of Commissioners and their respective briefs contained allegations of fact and exhibits. There was no objection on either side as to that manner of presenting evidence. Therefore, we review those averments of fact, as did the circuit court, contained in the record forwarded by the Tenure Commission. Our review of the action of the Tenure Commission is limited by statute. Section 16-24-38, Code of Alabama (1975) provides, “The action of the state tenure commission, . if made in compliance with the provisions of this chapter, and unless unjust, shall be final and conclusive.” The Supreme Court of Alabama in the case of Sumter County Bd. of Educ. v. Alabama State Tenure Comm’n, 352 So.2d 1137, 1139 (Ala.1977) said: “The State Tenure Commission’s conclusions and judgment will not be reversed on appellate review as being unjust unless it is against the preponderance of the evidence and the overwhelming weight of the evidence.”

The Tenure Commission after considering the matter presented to it, made a finding of fact that Alexander resigned and therefore was not entitled to the hearing before the Board provided by Section 16-24-9. In order to determine if that finding was contrary to the preponderance of the evidence, we must look at the evidence before the Commission. As previously stated, other than some exhibits and statements of fact by each side, the matter presented to the Board was largely arguments as to conclusions and inferences drawn from the exhibits and statements of fact. There were some statements which were not in conflict. Those were: Norman Alexander had been a teacher in the Mobile system for 13 years. He was certified to teach grades 1 through 5. At the conclusion of the 1973-74 school year, he was removed from a teaching position by assignment to Environmental Studies Center. His position was stated to be supervisor of a large tract of land. Alexander continued in the assignment until an altercation with his immediate superior in September 1976. The superior filed a report of the event and Alexander was called to an interview with the Assistant Superintendent for Personnel, Dr. Taylor. Dr. Taylor advised him to resign or be terminated. Alexander contacted a Board member about the matter and he directed him to resign. On Friday, October 8, 1976, Alexander wrote and mailed a resignation to the superintendent. On Monday, October 11, Alexander withdrew his resignation by a letter which was hand delivered to Dr. Taylor. In that letter he requested to be informed if the Board intended to terminate his contract. On October 13, he received a letter from Dr. Taylor dated October 11. That letter accepted his resignation without mention of the letter of withdrawal. Subsequent letters to the superintendent requesting clarification of Alexander’s status ultimately resulted in a letter from the superintendent stating that Alexander had verbally resigned and followed up with a letter of resignation to Dr. Taylor. Dr. Taylor had accepted the resignation and no basis existed for a hearing on the matter.

It was from these facts that the Tenure Commission determined that “Alexander resigned from employment and, therefore the Board did not unlawfully deny him a hearing.”

The arguments of Alexander before the Commission and here are: First: The resignation was procured by duress and undue influence by a Board member and by Board employees. We find no material evidence to support that argument.

Second: The resignation was re-” scinded before it was lawfully accepted. The initial portion of this argument is that the letter of resignation could not have been received and acted upon by Dr. Taylor or the superintendent before its withdrawal in the hand-delivered letter to Dr. Taylor. This argument is premised upon the fact that the letter mailed on Friday the 8th or Saturday the 9th could not have been received by Dr. Taylor until Monday the 11th. He would not have received it on Monday the 11th before receiving the withdrawal because Monday was Columbus Day, a national holiday and postal deliveries were not made. That argument is founded upon inferences and circumstances. The inference of non-receipt and delivery was rebutted, not by denial, but by statement of other circumstances which would permit an opposite inference. Those circumstances were that the mail of the office was not delivered but was deposited in a drawer at the post office and picked up on Monday; that'the office was open and Dr. Taylor was on the job when the withdrawal letter was handed to him. The inference then was that the letter of resignation could have been placed in the drawer and received by Dr. Taylor prior to his being handed the withdrawal.

The Commission was free to accept which circumstances and inference it chose. It obviously chose to believe that the resignation was received and accepted by Dr. Taylor before it was withdrawn. We could not find that action contrary to the great preponderance of the evidence.

Thus, we come to the last and conclusive argument against the judgment of the commission. Did Dr. Taylor have authority to accept the resignation? We must hold as a matter of law that he did not.

Section 16-24-11, Code of Alabama (1975) says, as pertinent, the following:

“No teacher . . . shall be permitted to cancel his . contract during the school term . . . unless such cancellation is mutually agreed upon; any such teacher shall be permitted to cancel his or her contract at any other time by giving five days’ written notice to the employing board of education. Any teacher cancelling his ... contract in any other manner shall be deemed guilty of unprofessional conduct, and the state superintendent of education is hereby authorized to revoke or suspend the certificate of such teacher.”

Alexander’s first letter was an offer to cancel his contract with the Board. However, an offer does not create a contract and the offerer can revoke the offer before it is accepted. Little v. Redditt, 264 Ala. 371, 88 So.2d 354 (1956). The statute provides that in order for the teacher to be permitted to cancel his contract of employment during the school term the cancellation must be mutually agreed upon — mutually agreed upon by whom? The teacher and his employer! His employer is the Board of School Commissioners of Mobile County. Section 16-8-23. Marsh v. Birmingham Bd. of Educ., 349 So.2d 34 (Ala.1977). The Supreme Court has stated that the superintendent of a system lacked authority to give notice of termination of a contract. Brown v. Board of Educ., 242 Ala. 154, 5 So.2d 629 (1942). The authority to terminate a contract and give notice thereof is granted by statute to the employing board and such authority is non-delega-ble to the superintendent. Section 16-24-9, Code of Alabama (1975); Board of Educ. v. Baugh, 240 Ala. 391, 199 So. 822 (1941); Brown v. Alabama State Tenure Comm’n, 349 So.2d 56 (Ala.Civ.App.1977).

It has been said that the legislature has placed certain non-delegable duties upon the boards of education. These duties involve the delicate exercise of a wise discretion. Board of Educ. v. Baugh, supra. The statute (Section 16-24-11) involved in this case relates to the authority to agree with a teacher under contract with the board whether to release him from the obligations of his contract during the school term. It may require finding another teacher in the midst of a term. It probably would be detrimental to the students of the teacher and to the school program. These are considerations which require the exercise of the discretion of the employing board before cancellation is agreed to. The importance of the matter is made evident by the penalty provisions of the statute if the teacher just walks away without the mutual agreement. The fact, if it is a fact, that the Board may have had ground to terminate the contract for cause in this particular case, does not support an exception. We must conclude that even though Alexander may have resigned with Dr. Taylor and Dr. Taylor accepted the resignation before it was withdrawn, the acceptance was without authority of law. The resignation was withdrawn. There was no evidence or claim that the Board of Commissioners ever considered or agreed to ac.cept the resignation.

The Tenure Commission misapplied the law to the facts and the circuit court erred in denying mandamus. The matter is reversed. The circuit court is directed to grant writ of mandamus directing the Tenure Commission to enter an order finding that Alexander has been dismissed in violation of law and directing his reinstatement as a tenured teacher effective October 11, 1976.

REVERSED AND REMANDED WITH DIRECTION.

BRADLEY and HOLMES, JJ., concur.

      . 640 acres of raw, uninhabited land with no building other than rest rooms, located 16 to 19 miles from downtown Mobile.-

      . Alexander says this occurred on Saturday, October 9. The letter does not have a date. However, the envelope has a postmark of October 8.


author: HARRIS, Judge.

text:
    Charlie L. BANKSTON v. STATE.
    3 Div. 732.
    Court of Criminal Appeals of Alabama.
    May 24, 1977.
    Rehearing Denied June 28, 1977.
    W. Clarence Atkeison, Prattville, for appellant.
    William J. Baxley, Atty. Gen., and Carol Jean Smith, Asst. Atty. Gen., for the State.
   HARRIS, Judge.

Appellant was convicted of murder in the second degree and his punishment was fixed at imprisonment in the penitentiary for a term of 25 years. With retained counsel at arraignment a plea of not guilty was interposed by appellant. After conviction appellant gave notice of appeal and petitioned the trial court for a free transcript and the appointment of counsel to represent him on appeal. After a hearing appellant was determined to be indigent and a free transcript was furnished him and trial counsel was appointed to represent him on appeal.

The evidence in this case is in hopeless conflict and this made and presented an issue for the jury to resolve. The jury resolved this issue against appellant.

Mr. John Vinson testified that he had known appellant and the deceased about a couple of years. He said that on the morning of December 18, 1975, he was at appellant’s garage located near Street’s Restaurant on Highway 31 in Autauga County, Alabama, when a shoot-out took place between appellant, the deceased, Pearson Weaver, Jr., and Wayne McCrory. While Vinson was talking to appellant and one Jack Scarborough the deceased and McCro-ry drove up to a nearby restaurant and Jack Scarborough left saying he was going into the restaurant to kick the deceased and McCrory out.

Vinson further testified that a few minutes later the deceased and McCrory, who had a bottle in his hand, came out of the restaurant and McCrory threw the bottle against the side of the garage. He testified that at this time appellant took his long barrel gun and walked out of the garage. Shortly thereafter he heard shots and saw the window on the passenger’s side of the car of the deceased was shattered and he ran and hid under some old tires in front of the garage. While hiding he heard more shots but he did not see who was shooting and he ran from the scene. He stated he could not tell whether the shots were from a pistol or a shotgun.

Mrs. Miyoka Street testified that on the date of the shooting she operated Street’s Restaurant near appellant’s garage. She stated that Jack Scarborough was her son-in-law and that on the morning of the killing the deceased and McCrory came in her restaurant and in a few minutes her son-in-law, Jack Scarborough, came in and asked her permission to throw the deceased and McCrory out and she refused, saying they were her customers. The deceased told Mrs. Street he would leave only at her direction and then she asked them to leave. As they got up to leave, McCrory told Scarborough to keep his hands off his gun. McCrory picked up a chair and attempted to hit Mr. Scarborough but he did not actually hit him and McCrory walked out.

Mrs. Street further stated that soon after the deceased and McCrory left she heard shotgun fire. She walked outside and saw the deceased was bleeding. He had a shotgun in his hands and he was kneeling on the ground outside his car and aimed the gun at her. She asked him what he was doing and he said, “Jack shot me,” and she told him, “No, Jack didn’t do it, because he was in the restaurant with me.” The deceased told her if Jack didn’t do it, then he wanted to talk to Jack. At that point appellant came out of the garage with a shotgun in his hand and she went back in the restaurant to call the police.

Mrs. Street further testified that she heard the deceased ask appellant why he had shot him and as she turned around she heard more shots. She saw McCrory running toward a boathouse with a pistol in his hand. Mrs. Street stated that Scarborough owned one side of the garage and appellant owned the other side. She stated that a Mr. W. L. Hubert really owned the garage and rented it to the deceased who then rented part of it to Mr. Scarborough. She stated that prior to the shooting she had heard the three men, appellant, deceased and McCrory had been engaged in an argument.

Edward Wayne McCrory testified that he was 20 years of age and had previously been convicted of assault with intent to rob. He was on probation at the time of appellant’s trial. He stated he had known the deceased for six years and was working for him on the date of the killing. He further said that on the night preceding the shooting he and the deceased went to the deceased’s shop to put brakes on a trailer truck. He said although Mr. Scarborough forbade them to use the garage, they used it anyway. On the morning of .December 18, 1975, appellant picked up McCrory and they drove to Street’s Restaurant. After they entered the restaurant Mr. Scarborough came in and threatened to throw them out. Mrs. Street told Scarborough they were her customers and she would take care of the situation, Mrs. Street asked them to leave and just before they left Mr. Scarborough charged at him and he (McCrory) picked up a chair and drew it back to strike him but put it down. Then McCrory and the deceased went out the place together. McCrory stated that when he got outside he threw a coke bottle in some weeds near the garage; that the deceased got in the car on the driver’s side and reached over to unlock the door on the passenger’s side and he entered the car.

He further testified that after he entered the car he closed the door and the window glass on his side of the car shattered and he immediately felt a real bad pain in his neck and back. He slid to the floorboard of the car and was bleeding badly. At this time he heard more shots and he saw the deceased open his side of the car, and was kneeling down trying to get his shotgun out of the back of the car. He stated he and the son of the deceased had been hunting the weekend before that and the son had left the gun in the back seat of the car. They had been deer hunting.

McCrory then heard some more shots and saw the deceased fall to the ground and knowing the deceased had a pistol in the glove compartment of the car, he pulled himself from the floorboard of the car and got the pistol and moved over to the driver’s side of the car. He saw the deceased on the ground and blood was all around him and he put one foot on the ground and had his other foot inside the car. He looked up and saw appellant standing about four feet from him and he was pointing the shotgun straight at his head. McCrory asked appellant twice to please not shoot him, but appellant stepped back a foot and put the shotgun to his shoulder and indicated that he was going to shoot him. McCrory then started shooting at appellant who turned and ran toward the garage door, and McCrory then ran to the boathouse. When the police officers arrived, McCrory surrendered the pistol. He was carried to the hospital and the doctor told him he had 35 to 40 pellets in his neck and back. He stated the doctor told him he could not remove the pellets because to do so might paralyze him. He was transferred to the Selma Medical Center where he was treated and then discharged to his home. The pellets were still in his neck and back at the time of appellant’s trial.

Mr. Richard Roper, Assistant State Toxicologist, whose qualifications were admitted by defense counsel, testified as to the cause of death of the decedent. He stated that in his opinion death resulted from “central nervous system trauma or brain damage and hemorrhage or massive bleeding, associated with multiple shotgun wounds to the body.” He stated that based upon his examination the deceased was shot twice and very probably was in a lying-down position when he was shot.

Mr. Charles Wesley Smith testified that on December 18, 1975, he was employed as a Criminalist with the Alabama Department of Toxicology and Criminal Investigation. He stated his educational background and experience in his field and his qualifications were not questioned. He stated that his experience with firearms identification and comparisons would probably exceed 2000 cases and that he had given testimony in court on numerous occasions.

He further testified that he received from Mr. Roper a small packet containing 13 lead pellets in connection with appellant’s case, along with two shotguns, a revolver, live and expended shotgun shells. He said that he received ten expended shotgun shells. The 13 lead pellets were removed from the body of the deceased and these were number four shot. He test-fired the shotgun that was taken by the officers from appellant and made a microscopic comparison and determined that seven of the expended shells were fired from that particular shotgun and the other three were very probably fired from the same gun. He further stated that none of the expended shells was fired from the shotgun that was found under the body of the deceased. There was no indication that the gun of the deceased had been fired at all.

Glen Singleton testified that on December 18, 1975, he owned Sports Marine, a metal fabricating business about 45 yards from Street’s Restaurant. He stated that while in his office he heard the sound of a shotgun. He moved to a side window and saw Mrs. Street coming from the area of the restaurant and the garage. At this time he also saw appellant approaching and observed him fire four shots between the restaurant and the garage. He said that appellant kicked the left side panel of the car and motioned with a shotgun. At this time Mr. McCrory came out of the car and he and appellant exchanged a few shots. After this exchange of gunfire Singleton went back to the garage.

Officer Rayburn Hill of the Prattville Police Department was called to the scene of the shooting and saw appellant standing with a shotgun in his hands and saw the deceased lying on the ground. He further stated that State’s Exhibit 1 was the pistol taken from McCrory, and State’s Exhibit 7 was five spent cartridges that came from that pistol. He stated that State’s Exhibit 5 was the shotgun taken from appellant and that State’s Exhibit 6 was the un fired shotgun that was beneath the body of the deceased.

Officer Merrill Evans of the Prattville Police Department went to the scene of the shooting with Officer Hill and he observed that both appellant and McCrory were bleeding.

At this point the State rested its case and there was no motion made to exclude the State’s evidence.

Ms. Dorothy Lee testified that she was a Deputy Sheriff of Autauga County and kept a record of all pistol permits issued by that Department. She stated that McCory and the deceased did not have permits to carry a pistol during the year 1975. She further stated that the deceased had been issued permits for four years prior to 1975 but had not renewed his permit for 1975.

Jack Scarborough testified that on December 18, 1975, he was near the Street Restaurant and saw the deceased and McCrory enter the restaurant. He stated that appellant tried to get him not to go to the restaurant in pursuit of the deceased and McCrory, but he went to the restaurant anyway. He said his purpose in going into the restaurant was to get these men out as he did not want them around his family. He stated that while he was in the restaurant he saw the deceased had a pistol in his pocket.

Scarborough further testified that another reason he did not want the deceased and McCrory around was they broke into his shop the night before and took several dollars worth of his equipment. He had denied them permission to use his shop but they forcibly entered anyway. Mr. Scarborough stated that he had rented the building from the deceased who was renting it from a Mr. W. L. Hubert. He further stated that when the deceased and McCrory left the restaurant he could no longer see them but he immediately heard gunshots.

Scarborough further testified that the night before the shooting, he, Mr. Vinson and appellant had discussed his troubles with the deceased and McCrory. He said that before going into the restaurant he talked to the appellant about killing the deceased and McCrory and that he would have shot them the night before, but for the fact that his wife stopped him. He further stated that on the morning of December 18, 1975, he and appellant had drunk a beer; that the shotgun that appellant used to kill the deceased did not belong to Scarborough.

Appellant testified that on the morning of the difficulty he saw the deceased and McCrory near his garage and one of them threw a bottle on top of his shop; that when he went out to see what was going on he got shot by McCrory and he returned to his shop, got his shotgun and came back shooting. Appellant said that the deceased pointed a shotgun at him and that he shot the deceased three times before the deceased could fire. He said that after McCrory shot him McCrory ran behind the restaurant. Appellant admitted that he had two beers before the shooting.

Appellant offered the testimony of three witnesses to show the bad reputation of the deceased and his reputation for being violent, turbulent and bloodthirsty. The trial court sustained the State’s objections to the questions posed to these witnesses, and appellant claims this constitutes reversible error.

In McCaghren v. State, 52 Ala.App. 509, 294 So.2d 756, this Court held:

“After evidence has been adduced in a homicide case tending to show that the defendant acted in self-defense, evidence as to the violent and dangerous character of the deceased and evidence as to previous threats against the defendant is admissible. But,
‘in the absence of a tendency of the evidence to show that the defendant was without fault in bringing on the fatal encounter, that he was in imminent peril, or that he could not avoid the difficulty or retreat without increasing his peril, the defendant cannot prove the bad character of the deceased for turbulence, nor threats by him toward the defendant, nor of a prior difficulty with him though of a serious nature.’ Farley v. State, 279 Ala. 98, 182 So.2d 364; Sanders v. State, 242 Ala. 532, 7 So.2d 483.”

The testimony of the expert witness in this case shows that the deceased was lying down when he was shot by appellant; that appellant made a murderous assault, indeed, an unprovoked assault upon the deceased, finds full support in the testimony. The evidence shows that appellant left his garage where he was entirely safe from harm and fired the first shot that shattered the window on the side of the car where McCrory was sitting and put 35 to 40 pellets in the neck and body of McCrory that he will carry with him the rest of his life. Appellant’s claim that the deceased was pointing a shotgun at him when he shot him is unbelievable in the light of the fact that when the officers arrived they found the shotgun of the deceased under his body and it had not been fired.

Under the facts and circumstances in this case we are clear to the conclusion that appellant was the aggressor and was not entitled to invoke the doctrine of self-defense.

The judgment of conviction is affirmed.

AFFIRMED.

All the Judges concur.


author: ALMON, Justice.

text:
    In re Charlie L. BANKSTON v. STATE of Alabama. Ex parte Charlie L. Bankston.
    SC 2693.
    Supreme Court of Alabama.
    April 7, 1978.

      George W. Cameron, Jr., Montgomery, and W. Clarence Atkeison, Prattville, for petitioner.
    William J. Baxley, Atty. Gen., and Milton E. Belcher, Asst. Atty. Gen., for respondent.
   ALMON, Justice.

Petitioner was convicted of murder in the second degree and his punishment was fixed at imprisonment in the penitentiary for twenty-five years. The Court of Criminal Appeals affirmed the conviction. We granted certiorari to determine whether the petitioner was entitled to offer evidence of the reputation of the deceased for being violent, turbulent, and bloodthirsty. We hold that he was and reverse.

Petitioner was involved in a three-party gun battle which took place on December 18, 1975, near Street s Restaurant on Highway 31 in Autauga County, Alabama. The battle was between petitioner, the deceased Pearson Weaver, Jr., and Wayne McCrory. When the smoke cleared, petitioner and McCrory were wounded. Weaver was dead; underneath him was his shotgun, still unfired..

Petitioner claimed self defense. His version of the facts shows that the shooting began when McCrory shot him. To defend himself, petitioner reached inside his garage and secured his shotgun. He saw the deceased pointing a shotgun at him but felled him with three quick blasts before the deceased could pull the trigger. For a detailed statement of the facts see the opinion of the Court of Criminal Appeals.

At trial, the petitioner offered the testimony of three witnesses to show the reputation of the deceased for being violent, turbulent, and bloodthirsty. The trial court refused to allow the evidence. The petitioner duly preserved the trial court’s rulings for review and claims that they constitute reversible error.

Ordinarily, the character or reputation of the deceased in a murder trial is not involved as an issue, and proof relative thereto is generally inadmissible. Webster v. State, 207 Ala. 668, 93 So. 545 (1922). Such a rule of law is weighted in the consideration that the law does not distinguish between the killing of an evil person and that of a saintly person. Eiland v. State, 52 Ala. 322 (1875). However, evidence of the character or reputation of the deceased for turbulence, violence and bloodthirstiness should be received when it illustrates or explains words or acts of the deceased at the time of the killing or to show that the killing was in self defense. Eiland v. State, supra. The rationale of the rule allowing such evidence is that words spoken or actions taken by a person with a reputation for turbulence, violence, and bloodthirstiness may convey a meaning and intent different from the same words and actions of someone else. Seemingly innocent actions of the deceased may take on a different significance when considered in the light of his or her character.

It is well understood that evidence of the deceased’s turbulent, violent, and bloodthirsty character is not competent absent some evidence tending to show that the killing was in self defense; that is, some overt act or hostile demonstration on the part of the deceased. Farley v. State, 279 Ala. 98, 182 So.2d 364 (1966); Wright v. State, 252 Ala. 46, 39 So.2d 395 (1949); Wells v. State, 187 Ala. 1, 65 So. 950 (1914); Green v. State, 143 Ala. 2, 39 So. 362 (1904). Such evidence is not available to the defendant if he or she is the aggressor. Sanders v. State, 242 Ala. 532, 7 So.2d 483 (1942); Rutledge v. State, 88 Ala. 85, 7 So. 335 (1889). However, on all doubtful questions of who is the aggressor, the bad character of the deceased for turbulence and violence should be admitted. De Arman v. State, 71 Ala. 351 (1882). When the evidence on self defense is sufficient to go to the jury, evidence of the deceased’s bad character for turbulence and violence must be accepted. Brooks v. State, 263 Ala. 386, 82 So.2d 553 (1955); McGuff v. State, 248 Ala. 259, 27 So.2d 241 (1946); Rutledge v. State, supra.

The issue boils down to whether the evidence undisputedly shows that petitioner -was the aggressor and he has no case of self defense sufficient to go to the jury. Farley v. State, supra; Rutledge v. State, supra. In its opinion, the Court of Criminal Appeals stated:

“Under the facts and circumstances in this case we are clear to the conclusion that appellant was the aggressor and was not entitled to invoke the doctrine of self defense.”

While we agree that there is sufficient evidence for the jury to find that the petitioner was in fact the aggressor, we disagree with the court’s holding, in effect, that there was insufficient evidence for the issue of self defense to go to the jury. The trial judge submitted the issue of self defense to the jury and we consider his action to be correct. The role of appellate courts is not to say what the facts are. Our role, and that of the Court of Criminal Appeals, is to judge whether the evidence is legally sufficient to allow submission of an issue for decision to the jury. To this end, the evidence in this case must be judged against the standards derived from our cases for submitting the issue of self defense to the jury.

In Davis v. State, 214 Ala. 273, 107 So. 737 (1926), the court considered the propriety of submitting to the jury the issue of self defense in a murder case. The court stated:

“. . . Without intending to pronounce judgment on the facts, we state what followed according to defendant’s contention, because defendant had a right to have his version of the facts, so far as supported by tendencies of the evidence, taken into consideration by the jury. .
“We are far from saying that defendant should have been acquitted on the ground of self-defense. Still, we think, there was some evidence tending to show self-defense, which thereupon, according to the long-standing precedents in this court, became a question for the jury. . . .” 214 Ala. at 276, 107 So. at 740.

In Burns v. State, 229 Ala. 68, 155 So. 561 (1934), the court again reversed the trial court for failing to submit the issue of self defense to the jury. It was stated:

“Our decisions are to the effect that every prisoner at the bar is entitled to have charges given, which without being misleading, correctly stated the law of his case, and are supported by any evidence, however weak, insufficient, or doubtful in credibility. Gibson v. State, 89 Ala. 121, 8 So. 98, 18 Am.St.Rep. 96. And in Morris v. State, (Ala.Sup.) 39 So. 608, 611, it is said: ‘It matters not how slight the tendency of evidence may be towards establishing any material fact involved, the court cannot exclude it from the jury. Its weight is for their determination. . . . 229 Ala. at 69, 155 So. at 562.

In a recent case, the Court of Criminal Appeals reversed the trial court for failing to charge the jury on the issue of self defense and stated:

“. . . The evidence for the appellant, though thin and shaky, tended to prove his plea of self defense. . . . ” Trammell v. State, 52 Ala.App. 89, 94, 289 So.2d 656, 661 (1973).

The evidence in this case is not without dispute. The opinion of the Court of Criminal Appeals states:

“The evidence in this case is in hopeless conflict and this made and presented an issue for the jury to resolve. . . . ”

In the recent case of Aberhart v. State, 353 So.2d 6 (Ala., 1977), this court in dealing with a similar situation held:

“. . . Petitioner further contends that it is not necessary to prove, but simply to offer evidence of, self-defense in order to be entitled to show evidence of the violent and bloodthirsty character of the deceased and to be entitled to the charge. We agree with petitioner and must, therefore, reverse and remand.”

We are, therefore, of the opinion that the evidence in question should have been admitted.

Petitioner also raises an issue submitted to the Court of Criminal Appeals for review but not addressed in that Court’s opinion. Petitioner correctly presents the issue for our review by filing a motion for additional facts pursuant to Rule 39(k), ARAP. Petitioner claims that, after a proper predicate had been laid, the trial court erred in its failure to allow him to impeach Wayne McCrory’s reputation for truth and veracity through witness Carl Piat. The objection is well taken and the trial court erred in its ruling. Hill v. State, 194 Ala. 11, 69 So. 941 (1915); Crowe v. State, 333 So.2d 902 (Ala.Cr.App., 1976), cert. denied 333 So.2d 906 (Ala.), McElory’s Alabama Evidence (3rd ed.), § 140.01(1).

The judgment of the Court of Criminal Appeals is hereby reversed and the cause is remanded.

REVERSED AND REMANDED.

All the Justices concur.


author: PER CURIAM.

text:
    Charles L. BANKSTON v. STATE.
    3 Div. 732.
    Court of Criminal Appeals of Alabama.
    May 16, 1978.
   PER CURIAM.

REVERSED AND REMANDED on authority of the opinion of the Supreme Court SC 2693, dated April 7, 1978, 358 So.2d 1040.

All the Judges concur.


author: HARRIS, Presiding Judge. TYSON, Judge, BOOKOUT, Judge,

text:
    In re Sandra Hill TETTER v. STATE of Alabama ex rel. William J. BAXLEY, Attorney General of Alabama. Ex parte Sandra Hill Tetter.
    6 Div. 694.
    Court of Criminal Appeals of Alabama.
    Dec. 3, 1977.
    Rehearing Denied Dec. 20, 1977.

      Jesse W. Shotts, Birmingham, for petitioner.
    William J. Baxley, Atty. Gen., and Rosa G. Hamlett, Asst. Atty. Gen., for the State, opposed.
   ON APPLICATION FOR REHEARING

HARRIS, Presiding Judge.

The Attorney General has filed in this Court an application for rehearing seeking to set aside, annul and hold for naught an order of this Court issued on December 3, 1977, directed to Honorable Joe G. Barnard, one of the Judges of the Circuit Court of Jefferson County, in which he was ordered to vacate, set aside, and hold for naught his decree in case number 179876 in which he adjudged Sandra Hill Tetter in contempt and sentenced her to five days in jail. We further ordered Judge Barnard to hold a hearing on the issue of contempt in this case with counsel present to represent the interest of the said Sandra Hill Tetter and that a full record of this hearing be forwarded to this Court for review before any further action is taken in this matter.

This is an important case and the issue to be determined is whether this Court has jurisdiction in contempt proceedings growing out of civil cases. In the past few weeks this Court has issued orders in two contempt proceedings arising from purely domestic problems over which this Court does not have final jurisdiction. In each such case the majority of this Court was of the considered opinion that we should not assume jurisdiction, but due to the urgency of the situation we issued the orders without writing a formal opinion. In the present case this Court met in emergency session on Saturday morning, December 3, 1977, because Mrs. Tetter was put in jail the previous Friday night.

The other case involved petitioner’s incarceration for a period in excess of three weeks due to a civil contempt committed when he refused to surrender certain household furniture, furnishings and other property which were set forth in a divorce decree. Petitioner was in jail and could not personally deliver the items of property as ordered by the Court. We ordered him released for 48 hours to comply with the decree of the Court.

It was the opinion of this Court in each of these cases that we were controlled by the case of Musgrove v. United States Pipe and Foundry Company, 290 Ala. 156, 274 So.2d 640, but we entertained grave misgivings as to whether we, indeed, had jurisdiction. Nevertheless, we felt bound by the decision in Musgrove, supra.

We are aware that Musgrove, supra, was bottomed on Robertson v. State, 20 Ala. App. 514, 104 So. 561. Robertson was not reviewed by the Supreme Court. We deem Robertson to be bad law and here and now overrule the decision in that case.

In view of the foregoing we earnestly urge the Supreme Court to decide if this Court is compelled to entertain jurisdiction in contempt proceedings growing out of purely civil matters over which we have no jurisdiction to render final orders.

Application be and the same is hereby overruled.

TYSON, DeCARLO and BOWEN, JJ., concur.

BOOKOUT, J., dissents.

TYSON, Judge,

concurring.

I concur in the foregoing opinion prepared by our Presiding Judge.

The Judicial Article, being Article VI, Sections 139-160, amending the Constitution of Alabama of 1901, was adopted in December 1973. Section 141 reads as follows:

“Courts of appeals, (a) The court of criminal appeals shall consist of such number of judges as may be provided by law and shall exercise appellate jurisdiction under such terms and conditions as shall be provided by law and by rules of the supreme court.
“(b) The court of civil appeals shall consist of such number of judges as may be provided by law and shall exercise appellate jurisdiction under such terms and conditions as shall be provided by law and by rules of the supreme court.
“(c) The court of criminal appeals and the court of civil appeals shall have no original jurisdiction except the power to issue all writs necessary or appropriate in aid of appellate jurisdiction of the courts of appeals.
“(d) The court of criminal appeals shall have and exercise original jurisdiction in the issuance and determination of writs of quo warranto and mandamus in relation to matters in which said court has appellate jurisdiction. Said court shall have authority to issue writs of injunction, habeas corpus and such other remedial and original writs as are necessary to give it a general superintendence and control of jurisdiction inferior to it and in matters over which it has exclusive appellate jurisdiction; to punish for contempts by the infliction of a fine as high as one hundred dollars, and imprisonment not exceeding ten days, one or both, and to exercise such other powers as may be given to said court by law.”

Because the passage of the Judicial Article is subsequent in point of time to the opinion of the Supreme Court of Alabama in Musgrove v. United States Pipe and Foundry Company, 290 Ala. 156, 274 So.2d 640, I am of the opinion that the Court of Criminal Appeals no longer has either equity or civil jurisdiction to entertain petitions growing out of civil cases or other proceedings in which civil contempt is involved.

BOOKOUT, Judge,

dissenting.

I would grant the application for rehearing. I dissent for two reasons:

I

The Court of Criminal Appeals has jurisdiction to issue original writs of habeas corpus. That jurisdiction is not limited to cases over which we have appellate jurisdiction.

I do not agree that Musgrove, supra, was bottomed on Robertson, supra, which was not reviewed by the Supreme Court and thus by overruling Robertson, we can somehow change the results of Musgrove. That reasoning was expressly rejected by the Supreme Court in Musgrove, 290 Ala. at page 159, 274 So.2d at page 643:

“Clearly, then, the Robertson case presented the exact same question which is before us here. The Court of Criminal Appeals recognized that, but was of the opinion that it need not follow that decision since it had not been reviewed in this court. We think the contrary. The legislature has used the exact same language construed by the Court of Appeals in Robertson when it adopted Title 13, § 111(4). A long line of cases hold that where the legislature re-enacts a statute or uses language in a new statute which has been previously construed by the judiciary, the construction given in a prior decision must be accepted as part of the same. . . . ”

The Supreme Court’s decision in Mus-grove is bottomed upon their interpretation of former Title 13, Section 111(4) Code of Alabama 1940, Recompiled 1958 (Act No. 987, Acts of Alabama 1969). That section has been adopted as part of our Constitution in the new Judicial Article. Article VI, Section 6.03(d), Constitution of Alabama, Amendment No. 328, ratified December 27, 1973, contains the same verbiage of former Title 13, Section 111(4), supra. The Supreme Court’s construction of Section 111(4) carries forward to Section 6.03(d) of the Judicial Article and to new Section 12-3-11, Code of Alabama 1975. Thus the authority of this Court to issue original writs of habeas corpus is now constitutional rather than solely statutory.

I fully recognize the wisdom expressed in the dissent of Justice Maddox in Musgrove, supra. I also recognize that, of the justices sitting in that 7 to 2 decision, only Justice Bloodworth (who voted with the majority) and Justice Maddox are currently on the Court. Whether that Court as now constituted will overturn its prior opinion is only speculation.

II

The contempt proceeding arose from a fight or disturbance between petitioner and others in a hallway immediately outside the courtroom. A hearing was going on at that time. The parties to the fight were either potential witnesses, parties or relatives of parties to the case being heard. The disturbance caused the trial judge to recess the hearing and to personally quell the disturbance. He found the petitioner to be in direct contempt.

In the case of Ex parte Tarpley, 293 Ala. 137, 300 So.2d 409 (1974) our Supreme Court said:

“In Alabama direct contempts are denoted as those contempts committed within the presence of the court, or so near the court as to interrupt its proceedings. Ex Parte Hennies, 33 Ala.App. 377, 34 So.2d 22 (1948). Summary procedures, designed to punish direct contempts, are utilized to fill the need for immediate penal vindication of the dignity of the court. Harris v. United States, 382 U.S. 162, 86 S.Ct. 352, 15 L.Ed.2d 240 (1965). .” (Emphasis supplied.)

The Circuit Court properly exercised its contempt power to preserve the dignity of that Court and to punish for the flagrant disturbance of its judicial proceedings. I would not have interfered with that Court by granting the writ, and I would now grant the application for rehearing and set aside our original order.


text:
    In re Sandra Hill TETTER v. STATE. Ex parte State ex rel. Attorney General.
    77-232.
    Supreme Court of Alabama.
    May 5, 1978.

      William J. Baxley, Atty. Gen., and Rosa G. Hamlett, Asst. Atty. Gen., for the State.
    Jesse W. Shotts, Birmingham, for respondent.
   EMBRY, Justice.

We granted the writ of certiorari in this action to dispel the existing confusion as to the proper appellate jurisdiction for review of contempt proceedings and to determine whether the contemptuous conduct in question was indirect or direct criminal contempt.

The instant action stems from a domestic relations proceeding. The following order entered by Circuit Judge Joe G. Barnard, of the 10th Judicial Circuit, Jefferson County, who presided over the proceeding, provides the factual background:

“This cause coming on to be heard and the testimony of some 16 witnesses being taken in open court it is the finding of the court after having all witnesses sworn and having testified:
“(1) That while this domestic relations hearing was progressing and while the court was seeking to interview the minor child of the parties with counsel for both parties being present in chambers,
“(2) An altercation broke out in the hallway adjacent to the chambers and the court room with attendant screaming and confusion which interrupted proceedings and made the further court action impossible.
“(3) On stepping from the chambers into the hallway, the undersigned judge viewed all 16 or 17 parties involved in a pushing, struggling melee.
“(4) That upon taking testimony the facts following are found:
(A) That the defendant in this action Sandra Hill Tetter whose name is otherwise unknown, did verbally accost the defendant Billy Wayne Hill and did hit or push him.
(B) That the defendant Billy Wayne Hill did then slap the defendant Sandra Hill Tetter in the head with his hand or fist.
(C) That other persons jumped on and between these two combatants causing a loud roll and turmoil.
(D) That as a result of the altercation two of the said witnesses were hospitalized as a result of seizures and for nervous condition aggravated by the said altercation between these two defendants.
(E) That further court proceedings in this matter are disrupted and made impossible by the actions of these two defendants.
(F) That the defendants are hereby adjudged to be in direct criminal contempt of this court.
(G) That after having heard testimony of all witnesses in open court in the presence and hearing of the defendants and in open court, the court after the finding of contempt, hereby sentences the defendants and each of them to serve 5 days in the county jail.
“Done and Ordered this 2nd day of December.”

Following the entry of the order, Sandra Hill Tetter filed in the Court of Criminal Appeals a motion to vacate or to stay execution of the judge’s order. After a hearing, the Court of Criminal Appeals issued an order setting aside and holding for naught that order; ordered Mrs. Tetter released from custody; remanded the cause for a hearing on the issue of contempt; directed that Mrs. Tetter be represented by counsel, and ordered a full record of the hearing be forwarded to the Court of Criminal Appeals before any further action was taken in the matter.

Thereafter, the State filed an application for rehearing with the Court of Criminal Appeals and the application was denied. Ex parte Tetter, 358 So.2d 1043 (Ala.App.1977). From that decision, the State petitioned this court to grant writ of certiorari.

Two issues are presented on review:

I. Whether the Court of Criminal Appeals was the proper appellate court to review the contempt order in this matter?; and,

II. Did Judge Barnard err in finding Mrs. Tetter to be in direct criminal contempt?

I.

Appellate Jurisdiction

The issue pertaining to this aspect of our review was recently answered in Ex parte Preston, 356 So.2d 640 (1978) [12 ABR 883 (1978)], where Justice Faulkner, writing for a unanimous court, said:

“We hold that because the Court of Criminal Appeals has no appellate jurisdiction over civil matters, it, likewise, has no jurisdiction over contempt proceedings arising out of civil matters * * *”

It is undisputed the contempt order entered here evolved from a civil matter: domestic relations (child custody). We see no need to elaborate on this point any further. However, we do deem this an appropriate opportunity to expressly overrule this court’s prior decision in Musgrove v. United States Pipe & Foundry Co., 290 Ala. 156, 274 So.2d 640 (1972), holding the appellate jurisdiction of a criminal contempt conviction to lie in the Court of Criminal Appeals regardless of the nature of the underlying matter.

On the basis of the above, we hold the Court of Criminal Appeals was without jurisdiction to review the contempt order of Judge Barnard in this case. However, under this court’s, inherent supervisory power over all of the courts of this state, we have no hesitancy in reviewing the decision of the Court of Criminal Appeals in this case rather than transfer the review of the case to the Court of Civil Appeals. Constitution of Alabama, 1901, Amendment No. 328, § 6.02(b).

II.

Indirect or Direct Criminal Contempt

A complete disposition of this action requires an examination of whether the judge was correct in finding Mrs. Tetter in direct criminal contempt. Hence our next consideration.

It is conceded that this action is a case of criminal contempt. Criminal contempt is:

“* * * imposed to punish for an act of past disobedience, to preserve the power and vindicate the dignity of the court, and to punish any act which is in disrespect of the court or tends to obstruct the administration of justice, or which tends to bring the court into disrepute. * *”

Carroll v. State, 350 So.2d 723 (Ala.App.1977).

However, the parties disagree as to whether or not the contemptuous conduct in question constitutes an indirect (constructive) or direct contempt.

The distinction between the two is drawn as a basis for procedural differences in applying a remedy. If the contemptuous conduct is determined to be a direct contempt, punishment is imposed without notice of hearing. On the other hand, if found to be an indirect contempt, punishment can be imposed only upon notice and hearing. See Carroll, supra. Mrs. Tetter contends the contempt was indirect; the State argues it was direct.

In Ex parte Tarpley, 53 Ala.App. 363, 300 So.2d 401 (1974), aff’d 293 Ala. 137, 300 So.2d 409 (1974), Judge Harris, writing for a majority of the Court of Criminal Appeals, aptly summarized the constitutional procedures to be utilized when remedying an indirect contempt:

“* * * a person alleged to be in contempt of court [shall] be advised of the charges against him; have a reasonable opportunity to meet them by way of defense or explanation, have the right to be represented by counsel, and have a chance to testify and call other witnesses in his behalf, either in defense or explanation.”, and a direct one:
“* * * a distinguishable category of circumstances [exist] where the above procedures are not mandatory. The excepted instances include charges of misconduct, in open court, in the presence of the judge, which disturbs the court’s business, where all of the essential elements of the misconduct are under the eye of the court, are actually observed by the court, and where immediate punishment is essential to prevent demoralization of the court’s authority before the public. * * * if some of the essential elements of the offense are not personally observed by the judge and he must depend upon statements made by others to supply his knowledge as to such essential elements, due process requires reasonable prior notice and the opportunity to be heard in person and with his witnesses at a fair hearing.” (emphasis added)

These procedures raise the following decisive issue in determining whether contempt is indirect or direct: Were all of the essential elements of the contemptuous misconduct under the “eye” of the court? We think not.

The contemptuous conduct in question involved about sixteen or seventeen persons. The judge, in his findings, stated that upon stepping from his chambers into the hallway, he observed all sixteen or seventeen persons involved in the melee. How could he possibly, from this observation, determine which parties were responsible for the disturbance. The answer is simple, the judge had to “* * * depend upon statements made by others (the persons involved) to supply his knowledge as to such essential elements * * *,” as evidenced in his contempt order. Thus, he did not have under his eye all the essential elements of the misconduct.

Summary punishment is allowed in those exceptional cases, direct contempts, because the personal knowledge of the court in whose presence the act was committed takes the place of evidence. Tarpley, supra, Carroll, supra. The judge’s incomplete personal knowledge here, could not supply the needed evidence that would warrant denying Mrs. Tetter due process of law. Had his personal knowledge been complete there may have been no need to take testimony. Whether Mrs. Tetter was responsible for the disturbance was not within the judge’s personal knowledge from what he observed.

We hold this was an indirect criminal contempt and the judge was required to afford to Mrs. Tetter due process of law (notice of the charges against her and a hearing) before imposing punishment.

In light of the foregoing, this action is remanded to the circuit court so that Mrs. Tetter may be advised of the charges against her and given a proper hearing in accordance with the requirements of due process as stated in cases of indirect contempt. For a detailed explanation of the proper procedures see Carroll, supra, and Ex parte Seymore, 264 Ala. 689, 89 So.2d 83 (1956).

REVERSED AND REMANDED.

TORBERT, C. J., and BLOOD WORTH, MADDOX, FAULKNER, JONES, ALMON, SHORES and BEATTY, JJ., concur.