text:
    RICHARDSON HOMES CORPORATION, a corporation v. Garron D. SHELTON.
    Civ. 819.
    Court of Civil Appeals of Alabama.
    Aug. 11, 1976.

      Eyster, Eyster & Key, Decatur, for appellant.
    Speake & Speake, Moulton, for appellee.
   HOLMES, Judge.

This is a workmen’s compensation case. After ore terns hearing, the trial court made an award to the employee. The learned trial judge specifically found that the employee had suffered a 30% permanent partial disability under Tit. 26, § 279(c)(6), Code of Ala. 1940, and made awards -pursuant thereto. The employer appeals from such award.

Tendencies of the evidence indicate the following: The employee was employed by appellant-employer. His job was to install metal sides on trailers. He later supervised others in this work and also performed the work himself. He is twenty-two years old, married, and has a tenth grade education. Basically, all of his employment has been as a manual laborer. While at work, a forklift ran over his right foot resulting in fractures of five of the metatarsal bones of the foot. He was hospitalized for approximately two weeks and was in a cast for about forty-five days.

The medical testimony gave the employee a 30% disability of the right foot and 5% disability to the body as a whole. Additionally, there was expert medical testimony indicating there was no disability.

Able counsel for the employer, who has favored this court with an excellent brief, argues primarily that the employee should be limited to a recovery as provided for in Tit. 26, § 279(c)(1), Code of Ala. 1940. Put another way, that the injury is to a specific member of the body and not to the body as a whole, as provided by Tit. 26, § 279(c)(6).

We initially note, as we did in Stewart v. Busby, 51 Ala.App. 242, 284 So.2d 269:

“The law in Alabama is well established that on certiorari to review judgments in workmen’s compensation cases, this court does not look to the weight of the evidence as to any fact found by the trial court, but looks to see if there is any evidence to support the facts found by the trial court. Tiger Motor Co. v. Winslett, 278 Ala. 108, 176 So.2d 39; Dale Motels, Inc. v. Crittenden, 50 Ala.App. 251, 278 So.2d 370. Stated another way in Alabama Textile Products Corp. v. Grantham, 263 Ala. 179, 183, 82 So.2d 204, 207, the supreme court said:
“ ‘Workmen’s compensation cases are not triable de novo in this court on the evidence taken below nor reviewed even as the finding of a judge sitting without a jury, as in ordinary trials at law or in equity upon testimony of witnesses examined before the court. Our duty in this type case is simply to ascertain whether there was any legal evidence to sustain the conclusion of the trial court. If any reasonable view of the evidence supports such conclusion, then the judgment will not be disturbed. (Citations omitted)’
“See also Brunson Milling Co. v. Grimes, 267 Ala. 395, 103 So.2d 315.” (51 Ala.App. at 245, 284 So.2d at 272)

The problem of injury and award therefor to a specific member of the body under Tit. 26, § 279(c)(1), Code of Ala. 1940, versus an injury and award to the body as a whole pursuant to § 279(c)(6) has been discussed by the appellate courts of this state on numerous occasions. See Bell v. Driskill, 282 Ala. 640, 213 So.2d 806; Dale Motels, Inc. v. Crittenden, 50 Ala.App. 251, 278 So.2d 370; Unexcelled Mfg. Corp. v. Ragland, 52 Ala.App. 57, 289 So.2d 626. Suffice it to say that our courts have held that even though the injury is to a scheduled member, if the effects of such injury extend to other parts of the body, and produce a greater or more prolonged incapacity than that which naturally results from the specific injury, then the employee is not limited in his recovery to the amount allowed for the member in the schedule.

Keeping the above in mind, we find the following testimony regarding the employee’s injury. He was injured in June of 1974. Several bones in the foot were broken. He was hospitalized. At the time of the hearing in January of 1975, he could stand on his feet for approximately three hours; thereafter, his foot would begin to swell. There was testimony that the pain from standing extended from his foot to the approximate area of the knee. Additionally, the foot has a discoloration and is sensitive to the touch. One witness testified that since the injury he had observed the employee’s foot and that the foot and ankle were swollen. This witness further testified that the employee complained of pain in his leg. The testimony of the employee’s father was similar to the above.

The employee and his wife both testified that he experiences pain in his leg and foot; further, that his foot would swell and he could not stand for long periods of time nor did he sleep well.

After hearing the above testimony, the trial court specifically in his findings stated the following:

“The plaintiff received immediate medical attention and has been examined and treated by several physicians. The Court has heard testimony of lay witnesses who have observed the plaintiff’s foot subsequent to the injury and in open court the undersigned has observed the foot, ankle and leg of the plaintiff. The plaintiff has testified concerning his injury, the immediate and subsequent pain and discomfort experienced as a result of the injury. There has been a significant amount of • swelling of the injured foot and the evidence and testimony heard by the Court are consistent with the plaintiff’s injury.

As seen from the above that while the evidence is perhaps not overwhelming that the injury extended beyond the foot, there is evidence that it does so extend beyond a mere injury to the foot and affected parts of his body. We find that the instant appeal falls within the criteria as stated by the supreme court. We further find that this case is specifically not substantially distinguishable from Dale Motels, Inc. v. Crittenden, supra, and is distinguishable from Leach Mfg. Co. v. Puckett, 284 Ala. 209, 224 So.2d 242.

We note at this point that while the court’s finding is not precisely that of the medical experts, it does not have to be. As our supreme court in Kroger v. Millsap, 280 Ala. 531, 196 So.2d 380, stated, the testimony of experts is not conclusive on the trial court even though such testimony be uncon-tradicted. We find no error in the finding of 30% disability. See also Henderson v. Johnson, 49 Ala.App. 191, 269 So.2d 905; and Stewart v. Busby, supra.

Finally, distinguished and experienced counsel for the employer contends that we must reverse in that the employee drew unemployment compensation while his workmen’s compensation case was pending.

Title 26, Section 214, Subsection I, does provide that an individual shall be disqualified for total or partial unemployment compensation for any week with respect to which or a part of which he has received or is seeking compensation for temporary disability under any workmen’s compensation law.

While there is testimony that the employee drew unemployment compensation benefits during the pendency of this case, we frankly cannot see that this would require or even allow this court to reverse the case. We make no determination that the employee wrongfully received unemployment compensation benefits. However, if such be the case, the Department of Industrial Relations of the State of Alabama is the appropriate state agency to rectify such action. Such action does not preclude an award of workmen’s compensation. We note that no authority is cited to us that such a preclusion exists.

The case is due to be and is affirmed.

AFFIRMED.

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


source: Caselaw Access Project

author: WRIGHT, Presiding Judge.

license: Public Domain

text:
    Earl DUCKETT v. H. O. BROOKS.
    Civ. 859.
    Court of Civil Appeals of Alabama.
    Aug. 11, 1976.

      Beck & Beck, Fort Payne, for appellant.
    Traylor, Baker & McGee, Fort Payne, for appellee.
   WRIGHT, Presiding Judge.

Plaintiff brought suit on March 21, 1975, for damages arising from overflow of water on riparian lands. Judgment was for plaintiff with damages in the sum of $550.00. Defendant appeals. We affirm.

The evidence tends to show that in 1973 defendant owned land along Skirum Creek. Defendant’s land lay partly above the land of plaintiff and on either side of the creek. He also had land across the creek from land owned by plaintiff. Defendant cleared portions of his land with machinery. In clearing he pushed trees into Skirum Creek. After heavy rains the trees and brush were carried down the creek until they accumulated and dammed the creek. The water overflowed onto plaintiff’s land causing it to wash and erode.

The first issue on appeal is whether the trial court erred in admitting evidence as to the effect upon the land of plaintiff of overflows occurring more than one year preceding filing of suit.

There is no dispute that plaintiff could recover only for damage to his property occurring within the year prior to suit. Though we find no plea of the statute of limitation filed by defendant in the record, the case was tried as though such a plea was filed. There were numerous objections by defendant during the trial to admission of evidence relative to the condition of plaintiff’s property subsequent to the pushing of the trees into the creek and prior to the beginning of the year before suit. The objections of defendant were upon the premise that evidence of damage occurring more than a year preceding suit was inadmissible.

Defendant was correct that evidence of such damage could not be considered as an element of recovery. However, evidence of the condition of plaintiff’s property and the effect of overflow caused by acts of defendant prior to the year before suit was admissible. It was admissible in order to indicate the condition of the land and the effect overflow had had upon it at the beginning of the period for which right of recovery began. Tutwiler Coal, Coke and Iron. Co. v. Nichols, 146 Ala. 364, 39 So. 762.

Defendant contends that the trial court erred in refusing to give his requested written charge as to the statute of limitation of one year. The court may not be placed in error for refusing a written requested charge unless objection is made thereto before the jury retires. Rule 51, ARCP. No such objection by defendant appears in the record. Neither is it error to fail to give a requested charge if it was fairly given in the oral charge. Rule 50, ARCP. The court orally charged the jury on the limitation of right of recovery.

Defendant further contends error in the admission of testimony of damage occurring after suit was filed and before trial and permitting of consideration of such damage in reaching a verdict.

Such action by the court was not error. Plaintiff amended his original complaint prior to trial to claim damages occurring subsequent to suit. The right to so amend and recover thereon is given by Rule 15, ARCP.

Plaintiff-appellee has filed motion for damages under Rule 38, ARCP. That motion is denied.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


text:
    STATE of Alabama DEPARTMENT OF PENSIONS AND SECURITY v. Berta Mae HORNBUCKLE. In the Matter of Shaniece Dawn Lynn HORNBUCKLE.
    Civ. 807.
    Court of Civil Appeals of Alabama.
    Sept. 1, 1976.

      William J. Baxley, Atty. Gen., Mary Lee Stapp and Jamie L. Pettigrew, Asst. Attys. Gen., for appellant.
    Johnston & Johnston and J. Allen Brinkley, Huntsville, for appellee.
   WRIGHT, Presiding Judge.

This is an appeal from a judgment of custody of a child. We reverse.

Shaniece Dawn Lynn Hornbuckle was born November 11, 1974. The mother is a 33-year-old dope addict. Shaniece is the fifth child to which the mother has given birth. The father has the custody of the first two. The next two were placed for adoption by the State.

Though the mother was married at the time of conception of this child, the identity of the father is in question. The month of conception was February, 1974. The husband was in the penitentiary for burglary and the mother was admittedly living with Robert Hornbuckle. In February the mother visited her husband in prison and had sexual intercourse with him. The mother states the father is Robert Hornbuckle. Hornbuckle originally denied to the mother that he was the father, but now states he believes that he is.

To continue an odyssey of tragedy, Horn-buckle has served 12 years of a 99-year sentence for murder and was serving a sentence for burglary at the time of the trial below. The mother then was in Georgia awaiting prosecution for various drug related offenses.

The court became involved in the life of Shaniece with the filing of a petition of neglect by the Madison County Department of Pensions and Security on February 28, 1975. Shaniece was then slightly over 3 months of age. She was in the home of the maternal grandmother. The mother was in a hospital because of an overdose of drugs. The home of the grandmother was a gathering place for drinking and prostitution. The need for attention by the State was made known by the mother of Robert Horn-buckle.

After securing a court order to take custody of Shaniece, the Department placed her with Berta Hornbuckle until a hearing on March 17, 1975. On that date she was placed in the temporary care and custody of the Department.

On May 14, 1975, Berta Hornbuckle, the mother of Robert Hornbuckle, the paramour of the mother of Shaniece, filed a petition to intervene and for the custody of the child. Mrs. Hornbuckle sought custody on the contention that she was the paternal grandmother and loved and desired the child. The Department sought custody for placement for adoption. Hearing was held with extensive testimony. By judgment of October 27, 1975, the court granted permanent custody to Berta Hornbuckle.

Motion by the Department for new trial was granted. On December 1, 1975, additional testimony was taken. Judgment of March 8, 1976 adopted that of October 27, 1975, and awarded custody to Berta Horn-buckle. The Department brings this appeal.

The primary concern of the trial court in a child custody case is the best interest and welfare of the child. Brill v. Johnson, 54 Ala.App. 39, 304 So.2d 591, cert. quashed, 293 Ala. 435, 304 So.2d 595. That concern is equally before an appellate court upon review of the judgment rendered by the trial court. It is the responsibility of this court to examine the decision of the trial court in light of the testimony and its reasonable inferences and determine if that decision satisfies the concern of the best interest and welfare of the child. If, after such examination, the decision of the trial court appears to be so unsupported by the testimony as to clearly fail to sustain the present and future best interest and welfare of the child, the presumption of correctness of the decision is overcome and this court must set the decision aside. American Nat. Bank & Trust Co. v. Powell, 235 Ala. 236, 178 So. 21; Baker v. Citizens Bank of Guntersville, 282 Ala. 33, 208 So.2d 601; Ex parte Union Planters Nat. Bank and Trust Co. of Memphis, 249 Ala. 461, 31 So.2d 596. We take such action in this case.

The trial court determined correctly that the legal parents of Shaniece were totally unworthy to possess parental or custodial rights. The mother is totally lacking in moral standards. She is a long-term drug addict, thief, forger and adulteress. The legal father is a convicted thief. The mother’s lover, who is designated the father of Shaniece without legal or biological support, is a convicted thief and murderer. It is upon an alleged but unproven parenthood arising from an adulterous relationship of her son with the mother of Shaniece that Berta Hornbuckle claims right of custody.

What did the evidence disclose about Berta Hornbuckle? She is 70 years old with a 75-year-old husband. She is not in good health. She has given birth to eleven children with only four surviving. Two died in bed as infants of unknown causes. A third died in bed at age 14 of unknown causes. A daughter, recently divorced, lives with her parents and is employed outside the home. The daughter admitted having openly lived with a married man for several months. The only income of the Hombuck-les is some $210.00 monthly Social Security.

Mrs. Hornbuckle believes Shaniece to be her granddaughter. She kept Shaniece for brief periods twice in the first four months of her life. She desires her custody because she loves her and the mother promised to give the child to her. She only has occasional difficulty with her heart, but her physician does not consider her physically able to care for and rear a small child.

This court does not intend to denigrate Mrs. Hornbuckle. We are sure she has acted with good motive. However, it is distinctly evident that she and her husband cannot reasonably expect to live long enough, much less be physically and financially able to rear Shaniece to adulthood. The blood relationship emphasized by Mrs. Hornbuckle would bear consideration if it were proved rather than presumed. The statement of the mother that Robert is the father is of little value. She admits to sexual relations with two men, one being her legal husband, during the period of conception. Her admitted addiction and moral conduct fails to indicate worthiness for belief. The statement of Robert Horn-buckle that he is the father is mere opinion supported only by opportunity. Neither is he worthy of belief.

The evidence, taken in its most favorable light to Berta Hornbuckle, is as follows: She is 70 years old with some heart trouble. Her physician states that in his opinion she is physically unable now to lift and perform all the tasks of caring for an infant. Her desire for custody arises from a presumed blood relationship. The presumed affinity of blood arose out of an immoral and illegal relationship between her son and the mother. That son is a convicted murderer and thief presently in the penitentiary. The financial resources of the Hornbuckles are such as to provide minimal necessities of life for Shaniece, even as an infant. Six of the eleven children of Berta Hornbuckle died by the age of 14. Only one of her children has ever been to school past the seventh grade. If custody remains with the Hornbuckles, Shaniece will be subjected to the presence and influence of a legal father who is a convicted criminal, a reported father who is a twice convicted criminal, a mother who is a drug addict, a basely immoral woman and a convicted criminal. Shaniece will be presented with full knowledge and awareness of the character and reputation of those claiming parentage. The very claim upon which custody by the Hornbuckles must be based declares to Shaniece and the world that she is the illegitimate result of an illegal sexual union between a murderer and a drug addict.

Under the conditions, facts and circumstances we have related, it is the opinion of this court that the placing of custody of Shaniece in the home of Berta Horn-buckle is clearly adverse to her best interest and welfare. The only reasonable conclusion to be reached is that such action would be utterly destructive to opportunity for a future of physical and psychological well being.

The only possible means of escaping the cesspool of crime and immorality from which she came is to place her custody in the Department. The Department of Pensions and Security has the public charge to protect Shaniece from knowledge of or contact with the ugliness which produced her. There are adoptive parents awaiting Shan-iece who can fill her life with beauty, love and happiness. Under the evidence of this case, to deny her the opportunity of such a life would be greatly unjust. The judgment of the trial court is reversed and the custody of Shaniece is directed to be given to the Department of Pensions and Security for the purpose of permanent planning and placement.

REVERSED AND REMANDED WITH DIRECTIONS.

BRADLEY and HOLMES, JJ., concur.


author: HOLMES, Judge.

text:
    The DEPARTMENT OF INDUSTRIAL RELATIONS of Alabama v. Billy BURGETT.
    Civ. 889.
    Court of Civil Appeals of Alabama.
    Sept. 8, 1976.
    Arthur J. Reid, Gen. Counsel, Dept, of Industrial Relations, for appellant.

      No appearance for appellee.
   HOLMES, Judge.

This is an unemployment compensation case.

The Department of Industrial Relations has taken an appeal from a judgment which in pertinent part reads as follows:

“The court notes that it does not have before it sufficient evidence on which to render a definitive judgment, that the time of claimant’s unemployment is uncertain, the time of his availability for work is uncertain, and his base wages and/or amount of entitlement are not revealed by the record. The parties were not apparently prepared on those issued, having devoted themselves primarily to the resolution of the issue of good cause connected with claimant’s work.
“Premises considered, it is CONSIDERED AND ADJUDGED by the court as follows:
“1. The court declares and ascertains that claimant did have good cause connected with his work for leaving his employment.
“2. This case is re-set on May 25,1976, at 9:00 A.M. for the taking of evidence on other issues, unless in the meantime additional stipulations are furnished to the court.
“3. The clerk of this court shall forthwith mail a copy of this judgment to the attorneys of record for each of the parties.
“Done this the 15 day of April, 1976. /s/ Clark E. Johnson. Jr.
CLARKE E. JOHNSON, JR., JUDGE”

The law of Alabama is clear that a final judgment is necessary to give the appellate courts of this state jurisdiction on appeal. Tit. 7, § 754, Code of Alabama 1940. See Cherokee County Hospital Board v. Retail, Wholesale, and Department Store Union, AFL-CIO, 294 Ala. 151, 313 So.2d 514; Cates v. Bush, 293 Ala. 535, 307 So.2d 6. See also 2A Ala.Dig. Appeal and Error to 66.

It is equally as clear that the above principle of law applies to unemployment compensation cases. Tit. 26, § 221, Code of Alabama 1940.

Only a cursory examination of the above quoted judgment shows it to be a judgment that will not support an appeal.

APPEAL DISMISSED.

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


text:
    In re Edward H. BROGDEN v. EMPLOYEES’ RETIREMENT SYSTEM, a corp., et al. Ex parte STATE of Alabama, ex rel. William J. BAXLEY, as Attorney General of the State of Alabama.
    Civ. 900.
    Court of Civil Appeals of Alabama.
    July 14, 1976.
    Rehearing Denied Aug. 18, 1976.

      William J. Baxley, Atty. Gen., and James S. Ward, Asst. Atty. Gen., for the State, petitioner.
    Powell & Sikes, Andalusia, for respondent.
   WRIGHT, Presiding Judge.

Defendants petition for a writ of mandamus to be directed by this court to Honorable F. Murland Smith, Judge of the Coving-ton Circuit Court, directing him to vacate an order entered on May 14, 1976. That order denied a motion to dismiss an action for declaratory judgment brought against defendants Employees’ Retirement System, and David G. Bronner, as Executive Officer of the Employees’ Retirement System.

The petition for writ of mandamus alleges that the Circuit Court of Covington County is without subject matter jurisdiction of an action brought against the System because it is a board or commission of statewide jurisdiction, not limited to any county or district in its field of operation and has its principal office or place of business in Montgomery County. The petition does not challenge the order of the circuit court upon the ground of improper venue, though such was a ground of the motion to dismiss filed below. Therefore, the issue presented by the petition is clear and it must prevail or fail upon that issue.

Does a circuit court of any county other than Montgomery have jurisdiction over a declaratory judgment action against a state board, state commission, public corporation or official of state-wide jurisdiction having its principal office in Montgomery County? That is the issue.

Petitioner relies upon the authority of cases of the Supreme Court of Alabama cited as follows: Ex parte: Alabama Textile Products Corporation, 242 Ala. 609, 7 So.2d 303; Kelley v. Lingo, 280 Ala. 128, 190 So.2d 683; Alabama State Bar v. Watson, 289 Ala. 729, 272 So.2d 240. Defendant relies upon the general jurisdiction vested in circuit courts by Article 6, Sec. 142 of the Alabama Constitution and upon the contention that the principle of the cases cited by petitioner does not apply in this case.

We consider it necessary to analyze the authorities cited by petitioner. The first case is that of Ex parte: Alabama Textile Products Corporation, supra. In that case writ of certiorari was sought from the supreme court to review an order of the Board of Appeals, Unemployment Compensation Division of the Dept, of Industrial Relations. The court held that it had the authority to grant such writ under Title 13, Sec. 17(3) of the Code of Alabama (1940), and Sec. 140 of the constitution. The constitution and statute grant to the supreme court general superintendence of all inferi- or jurisdictions within the state, either by appeal or by supervisory writs. However, the court refused to exercise its authority because there was another court inferior to it (Circuit Court of Montgomery County) which had the power of general superintendence over inferior jurisdictions. Title 13, Sec. 126, Code.

The court indicated that the exercise of superintendence by a circuit court is inferentially limited to the territorial area assigned to it. The court said that the circuit court wherein the board or commission had its principal place of business had right of general superintendence over the acts of such board or commission. It further said as follows: “[B]ut we do doubt such authority of the circuit court of a county in which it did not sit, to hear the matter of controversy.”

In Alabama State Bar v. Watson, supra, the supreme court using the same terminology and citing Ex parte: Alabama Textile Products Corporation held that because the principal place of business of the Board of Bar Commissioners was in Montgomery, the Circuit Court of Madison County had no supervisory jurisdiction over it.

In the next to last paragraph of its opinion in Alabama State Bar v. Watson, supra, the court made statements which could distinguish that case from any other relating to a board or commission. It was made clear that the Board of Bar Commissioners is a judicial body under Sec. 139 (now 139(b)) of the constitution and is directly subject to the superintendence of the supreme court. The court has permitted some supervisory power to be exercised by the circuit court where the board has its principal place of business, but it has not held that any circuit court could so supervise.

The court again spoke to its sole constitutional power to supervise the actions of the Board of Bar Commissioners and to establish its rules and regulations in the case of Board of Com’rs, Ala. St. Bar v. State ex rel. Baxley, 295 Ala. 100, 324 So.2d 256. We do not doubt the power of the supreme court to exercise its constitutional > power of supervision of boards or commissions of state-wide authority created as judicial bodies or boards and commissions possessing judicial powers when acting thereunder. Ex parte: Alabama Textile Products Corporation, supra. Neither do we doubt the power of that court to permit such power to be exercised instead by another court superior to the board or commission.

Because statements in these decisions of the supreme court have been couched in terms relating jurisdiction to a “principal place of business,” it has been contended in dissents therein that the court was confusing jurisdiction with venue. We believe that a careful analysis of these decisions together with Sec. 142(b) of the constitution and the decision of the court in Dunbar v. Frazer, 78 Ala. 529, will bring a better understanding of their meaning.

Art. 6, § 142 of the Alabama Constitution, adopted in 1973, is as follows:

“Circuit court, (a) The state shall be divided into judicial circuits. For each circuit, there shall be one circuit court having such divisions and consisting of such number of judges as shall be provided by law.
“(b) The circuit court shall exercise general jurisdiction in all cases except as may otherwise be provided by law. The circuit court may be authorized by law to review decisions of state administrative agencies and decisions of inferior courts. It shall have authority to issue such writs as may be necessary or appropriate to effectuate its powers, and shall have such other powers as may be provided by law.”

It will be noted that the constitution grants to all circuit courts general jurisdiction, in all cases except as may be limited by law. We know of no statutory limitation of such power. However, it may be further noted that the constitution fails to provide power of superintendence over courts of inferior jurisdiction to the circuit court as it does to the supreme court in Sec. 140(b). It only provides that power to review decisions of State agencies and inferior courts may be Authorized by law. In many instances such authority had previously been granted by statute prior to adoption of the amendment to the constitution in 1973. Such authority continues.

Though without constitutional power of superintendence over inferior jurisdictions, the circuit courts were long ago granted such power by statute. Title 13, Sec. 126(3) Code. In the decision of Dunbar v. Frazer, supra, the supreme court discussed the distinction between constitutionally conferred original or general jurisdiction over subject matter and statutorily conferred power of superintendence or jurisdiction over an inferior jurisdiction. It was there pointed out that the constitution authorized the legislature to divide the state into judicial circuits with geographical or territorial boundaries. Within such boundaries the court would exercise the authority granted it exclusive of other circuit courts. It was then concluded that the statutory grant to a circuit court of supervisory power over inferior jurisdictions could only be applied to such inferior judicial bodies that sat or acted within the territorial limits of the circuit. To interpret otherwise would produce concurrent and possible conflicting supervision. Such construction of authority to superintend is only logical and serves public policy.

Considering Dunbar v. Frazer, supra and its progeny referred to above, we must conclude that the limitation of jurisdiction spoken of is that of power to supervise the acts of inferior courts,-boards, commissions or officials exercising judicial powers. If such judicial acts are not performed within the boundaries of the circuit, the circuit court has no jurisdiction to supervise it through remedial or appellate petitions. Thus, there are two aspects of jurisdiction in a circuit court: that general subject matter jurisdiction granted by the constitution and the supervisory jurisdiction over inferi- or judicial bodies or officers located and acting within its territorial boundaries granted by statute.

We are now confronted with the question of whether the administrative acts of a state agency official or, as in this case, the executive officer of a public corporation comes within the limitation of the supervisory authority of a circuit court. We conclude that they do not.

The action brought by plaintiff in the Circuit Court of Covington County was not a remedial writ, but sought a declaration of the correct status of the law after administrative action adverse to his interest. There existed a controversy as to the meaning or application of the law between individuals, though one was a State official. The Declaratory Judgment Act (Chap. 4, Art. 12, Title 7, Code) furnishes a remedy for either party against the other to declare the status of the law. Curry v. Woodstock Slag Corporation, 242 Ala. 379, 6 So.2d 479; State v. Louis Pizitz Dry Goods Co., 243 Ala. 629, 11 So.2d 342.

The supreme court said in the case of Gibbs v. Cochran, 281 Ala. 22, 198 So.2d 607 (1967) as follows:

“We have said that controversies touching the legality of acts of public officials or public agencies challenged by parties whose interests are adversely affected is one of the favored fields for declaratory judgment. Scott v. Alabama State Bridge Corp., 233 Ala. 12, 169 So. 273; Marshall County Gas District v. City of Albertville, 263 Ala. 601, 83 So.2d 299.”

That case was an action against the State Board of Pharmacy, which is a state board or commission with authority not limited to a particular county, with its principal office in Montgomery County. The suit was brought in Mobile County. No issue was raised by the attorney general as to either jurisdiction or venue. Neither did the supreme court note any lack of jurisdiction in the Circuit Court of Mobile County. We consider that the Circuit Court of Mobile County had subject matter jurisdiction in the case as did that of Covington County in this case. It was not a case involving the supervisory jurisdiction of the court. Such is not involved in this case. An action for declaratory judgment does not challenge a judicial decision of a judicial body. Such action falls within the general jurisdiction of any circuit court. The exercise of such jurisdiction is subject to abatement only if subject to a plea of improper venue.

We cannot end our discussion without pointing out the lack of application to any issue of jurisdiction of the cases of Kelley v. Lingo, supra, and Tri-State Corporation v. State ex rel. Gallion, 272 Ala. 41, 128 So.2d 505.

Kelley v. Lingo, supra involved an attempted appeal to the circuit court of defendant’s residence of a revocation of a drivers license by the Director of Public Safety for driving while intoxicated. The revocation was under the mandatory provisions of Title 36, Sec. 68 of the Code. The supreme court granted mandamus to the circuit court, pointing out that the statute provided no appeal from a mandatory revocation and that none could be had from such ministerial act. The court then said that such act was not without possible remedy, but if there were such a remedy it must be filed in the circuit court of the official residence of the director. In support of the latter statement there were cited cases and an annotation from 48 ALR2d 415 entitled “Venue-action against public officer.” One of the cases cited was Tri-State Corporation v. State ex rel. Gallion, supra.

The decision in Tri-State plainly spoke to venue, not jurisdiction, when it said:

“We think it is well established in Alabama, as well as elsewhere, that suits involving public officials are properly maintained in the county of their official residence.”

These are terms of venue not jurisdiction.

Citing as authority the case of Kelley v. Lingo, supra, the supreme court again used the word jurisdiction when it obviously meant venue in the case of Ex parte: State, ex rel. C. W. Russell, Director of Public Safety, 280 Ala. 448, 194 So.2d 851. It is understandable how the unfortunate use of the word “jurisdiction” in venue cases may cause confusion unless there is close attention to the context of its use. The jurisdiction of a circuit court is the power to adjudicate granted by the constitution. The place where such power may be exercised is venue as directed by statute.

It is the opinion of this court that the subject matter of the suit below is within the general jurisdiction of the Circuit Court of Covington County. It is further our opinion that the action is not one involving supervisory authority of the court. The exercise of its constitutional general jurisdiction is subject only to a plea of improper venue. Whether a plea of venue was improperly denied is not before the court in this matter and we cannot rule on such plea, though such plea would be appropriate. The trial court may take judicial knowledge that the official residence of the Executive Secretary and the Employees’ Retirement System of Alabama is in Montgomery County. We do not consider that because the system was organized with powers of a public corporation it is any less an agency of the State.

PETITION FOR WRIT OF MANDAMUS IS DENIED.

BRADLEY and HOLMES, JJ., concur.


author: SHORES, Justice.

text:
    In re Ex parte STATE of Alabama ex rel. Wm. J. BAXLEY, as Atty. Gen. of the State of Alabama. In re Edward H. BROGDEN v. EMPLOYEES’ RETIREMENT SYSTEM, a corporation, et al. Ex parte STATE of Alabama.
    SC 2021.
    Supreme Court of Alabama.
    Sept. 24, 1976.
    William J. Baxley, Atty. Gen., and James S. Ward, Asst. Atty. Gen., for petitioner.
   SHORES, Justice.

Petition of The State of Alabama for Certiorari to the Court of Civil Appeals to review and revise the judgment and decision of that Court in Ex Parte: State of Ala., ex rel. Wm. J. Baxley, as Atty. Gen. of the State of Ala. (In re: Brogden v. Employees’ Retirement System, a Corp., et al.), Ala.App., 336 So.2d 1376.

WRIT DENIED.

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


author: BRADLEY, Judge.

text:
    William E. ORDERS v. Jay Woodward TURNEY.
    Civ. 897.
    Court of Civil Appeals of Alabama.
    Sept. 8, 1976.

      W. W. Dinning, Demopolis, for appellant.
    Phelps & Owens and Randolph M. Fowler, Tuscaloosa, for appellee.
   BRADLEY, Judge.

This appeal comes to us from the Circuit Court of Sumter County. Plaintiff initiated the action by filing a complaint against defendant alleging injuries resulting from a motor vehicle collision. The case was heard by the trial court without a jury. Evidence for the plaintiff was his own oral testimony and the oral testimony of a physician and the Alabama state trooper who investigated the accident. The defendant was not present at the trial; his evidence consisted of his deposition and those of his wife and the doctor who examined the plaintiff after the accident. The court found that the negligent operation of a vehicle by the defendant was the proximate cause of the injuries and damages sustained by the plaintiff, and that the amount of said injuries and damages was $500.00. Judgment was entered against defendant for that amount. Plaintiff appeals.

The dispositive issue presented for this court’s consideration is whether the evidence was sufficient to support the findings of fact by the court. We hold that it was and affirm.

Plaintiff (hereinafter appellant) and defendant (hereinafter appellee) were involved in a rear end collision on Rooster Bridge which spans the Tombigbee River separating Marengo County from Sumter County. Appellant was driving a tractor trailer approximately fifty to fifty-five feet in length which with its load weighed approximately 73,280 pounds. Appellee was driving a one-half ton pickup truck and towing a camper and travel trailer which he testified weighed approximately 12,000 pounds. Appellee was following appellant.

The collision occurred around 6:30 p. m. on May 7,1973. It was a rainy, drizzly day; there was no dispute that the road was wet and slick.

Testimony by both appellant and appellee was that both were traveling less than 25 m.p.h. due to the rain and narrowness of the bridge. As appellant was exiting from the west end of the bridge, a tractor trailer heading in an easterly direction began to move forward on the one-lane bridge; appellant applied his brakes and began slowing down. Appellee testified that he then applied his brakes, which caused his vehicle, camper and trailer to begin sliding across the metal grating of the drawbridge. Ap-pellee’s pickup truck collided with the rear of appellant’s trailer while appellant’s tractor and trailer were continuing to move in a westerly direction at a speed of 10 to 15 m.p.h.

The hood of appellee’s pickup truck slid beneath the rear end of appellant’s trailer, coming to rest with the end of the appellant’s trailer lodged against the windshield of appellee’s truck. The appellee’s windshield was broken. The bumper of appellant’s trailer was torn off and the rear end door of the trailer had to be pried open; there was no other damage to the trailer.

Appellant testified that upon impact he briefly lost consciousness before getting out of his truck and that his neck felt swollen. Appellee’s deposition stated that immediately after the accident appellant had said he had felt a bump but did not know appel-lee’s vehicle was pinned beneath his trailer. Appellant also stated that he was not hurt. The Alabama state trooper who investigated the accident testified that he had no recollection of anyone telling him they were injured. Appellant declined to go to a hospital for a physical examination. After staying at the scene of the accident for approximately three hours, appellant returned to his truck and continued his journey to Jackson, Mississippi where he arrived late that same night.

On the day following the accident, appellant visited Dr. James D. Polk in Jackson, Mississippi who testified on deposition that appellant had complained of a headache and stiffness in his neck. He further stated that examination revealed muscular spasms in appellant’s neck; x-rays revealed a normal skull and a normal cervical spine. A muscle relaxer and mild pain medication were prescribed. Appellant was again examined by Dr. Polk on the following day. The doctor testified that his records indicated that the appellant was responding well to the medication and that he made no further complaints at that time. Appellant returned to work two weeks thereafter.

Appellant testified he continued to work as a truck driver for his company until December, 1973, when he was told that if he could not make long distance hauls, he would not be needed. Pain in his back and leg prevented appellant from continuing to make these long hauls, so he resigned his position with that company. In 1974 he was employed by a different trucking business which permitted him to make shorter hauls and to do odd jobs not requiring heavy manual labor in the freight yard. Appellant’s income during 1974 was half that earned in 1972 and in 1973.

Appellant worked for the second trucking company until January, 1975 when that company ceased operating. He stated that he remained unemployed from January, 1975 until approximately two weeks prior to trial when he had accepted employment as a supervisor in a lumber company.

On cross-examination appellant testified that after the accident he sought no medical treatment, other than visiting Dr. Polk, until June, 1974 when he consulted a physician and an orthopedic specialist. Both doctors prescribed medication for pain, but neither prescribed a back brace or suggested hospitalization. Appellant was referred to a neurosurgeon but declined to go; he sought further treatment from a chiropractor.

Appellant visited Dr. F. S. Whitfield, Jr., in September, 1974 and again in January, 1976, five weeks prior to trial. Dr. Whitfield testified at trial that his examination of appellant revealed strain in the muscles and ligaments along the backbone, the neck and upper back, and the thigh or hip region. He stated that the cause could be a severely strained ligament or muscle that had not returned to normal, or it could be a ruptured disk, which would require surgery. Dr. Whitfield stated that in his opinion appellant could no longer perform any heavy manual work nor could he drive a truck for any length of time. He further testified that appellant told him of the accident on May 8,1973, and that the pain had developed on the day of that injury. On cross-examination Dr. Whitfield admitted that he had never seen appellant prior to September 24,1974 and that he had no way of knowing appellant’s condition on the date of the accident or any time prior to his first examination of appellant.

The trial court awarded appellant $500.00 damages, the earnings lost by appellant during the two weeks immediately following the accident. Appellant claims that he is totally disabled, can no longer earn his living driving a truck, and therefore the judgment of $500.00 is so disproportionate to his injury that the trial court is due to be reversed. We cannot agree.

It is a well settled principle that where evidence is heard orally before the trial court, the finding of the court has the effect of a jury’s verdict and will not be disturbed on appeal unless plainly erroneous. A reviewing court must affirm the trial court’s decree if it is fairly supported by credible evidence under any reasonable aspect, regardless of the reviewing court’s view of the evidence. Chrisman v. Brooks, 291 Ala. 237, 279 So.2d 500 (1973); Lott v. Keith, 286 Ala. 431, 241 So.2d 104 (1970).

We cannot say in this instance that the trial court’s finding that the extent of appellant’s injuries and damages amounted to $500.00 was plainly erroneous. The fact that appellant continued to work for over a year after the accident and did not seek medical treatment during that time could reasonably support a conclusion that appellant’s unemployment in 1975 was not, as appellant contends, due solely to an injury he received in 1973. Nor can we say that $500.00 is unreasonable compensation for the two weeks appellant lost from work immediately after the accident in May, 1973. Appellant testified he was earning approximately $250.00 a week at that time.

Appellant also argues that appellee’s deposition testimony is not entitled to the same weight as that of a witness testifying personally, citing Mann v. Darden, 6 Ala.App. 555, 60 So. 454 (1912). The court there held it proper to charge the jury that the weight and credibility to be given the testimony of a witness testifying ore tenus is different from that given to the same testimony in written form.

The Mann case has long been discredited by Central of Georgia Ry. Co. v. Holmes, 223 Ala. 188, 134 So. 875 (1931) which criticized the charge in Mann on the ground it was a charge upon the effect of evidence. The better rule according to the later court is that testimony given in deposition form should receive the same fair and impartial consideration as if it had been given by witnesses in open court. Deposition testimony is to be taken with the same sanctity of an oath and is legal evidence to be given the same consideration as other testimony. Thus, there is no merit to appellant’s contention that appellee’s evidence is subject to less credibility merely because offered in deposition form.

Recognizing the right of the trial court to weigh the evidence and give credibility to the witnesses, we cannot hold that the evidence so plainly and palpably fails to support the findings as to require us to reverse the judgment of the trial court. The judgment of the trial court is affirmed.

AFFIRMED.

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


text:
    The BANK OF HUNTSVILLE v. Claude L. WITCHER.
    Civ. 822.
    Court of Civil Appeals of Alabama.
    Sept. 1, 1976.

      Watson, Moore & Mason, Huntsville, for appellant.
    George C. Hawkins, Gadsden, and Hogan, Smith & Alspaugh, Birmingham, for appel-lee.
   BRADLEY, Judge.

This appeal comes from the Circuit Court of Calhoun County. The defendant below appeals from a verdict and judgment in favor of the plaintiff in the amount of $2,250.

The complaint contained two counts: one for conversion and the other for fraud. Defendant denied the allegations of the complaint and filed a counterclaim for a deficiency judgment on a promissory note owed by the plaintiff. Plaintiff denied the contentions of the counterclaim, and after a pretrial hearing the case was tried to the court and a jury. The defendant’s motions for directed verdict, judgment n. o. v., and new trial were denied by the trial court. The defendant appeals, contending that these rulings as well as the judgment on the merits were erroneous and a reversal is due to be entered. The underlying premise for the contention of error in the various rulings is that the record is devoid of any evidence that a conversion of the personalty was accomplished.

The evidence reveals that in March 1974 plaintiff (hereinafter “Witcher”) financed the purchase of a 1974 Ford pickup truck through the appellant, Bank of Huntsville (hereinafter “Bank”). Witcher executed a promissory note and security agreement for a total amount of $3,308.55 to be paid in thirty-six installments of $110.34 per month, with each payment due on the sixth day of the month. Payments were to commence in May 1974.

A payment was made on May 10, 1974, and another on June 17th. In July 1974 Witcher obtained an extension of that month’s payment. The next payment was made on August 24, 1974. In September 1974 Witcher again requested by telephone an extension of the September payment; he made no further payment until after being notified that the extension had been granted. Thereafter payments were made on October 21, December 5, December 17, 1974 and January 25 and February 21,1975. No other payments were ever made.

Witcher testified that on March 1, 1975 he called the Bank to request an extension or a rearrangement of his payment schedule. The transcript of his testimony on this point is as follows:

“A. I told the gentleman that I was having financial trouble, the doctor bills, the hospital bills, drug bills, and then everything else, all the other expenses coming due, and I just couldn’t make it. I asked the gentleman if there was any way he could set me up — my loan up on a six month basis, or six months, just making the note came [sic] due or if there was any way he could lower the payments at that time. And the gentleman I was talking to said he really didn’t know, he would have to talk to someone else in the bank, and that he would get back with me. He said he would write a letter and tell me what the bank could and couldn’t do. At that time he said, ‘You’re not in any real trouble. You’re only 95 cents behind on your payment.’ And he said, ‘That 95 cents is nothing you could really worry about,’ and that was it. He did tell me he would write a letter and tell me what the bank could and could not do.”

Witcher stated that he did not make the March or April payments because he was waiting to hear from the Bank.

On April 11, 1975 the Bank repossessed the Ford truck. Testimony for the Bank was that Witcher had been notified by letter prior to the repossession that the truck would be repossessed unless the amounts unpaid were paid within ten days. Witcher denied receiving such a letter.

There was also testimony that the Bank notified Witcher that his truck had been repossessed, and that it would be sold, and that the proceeds would be applied to reduce the outstanding indebtedness. After the sale of the truck there was a deficiency owing to the Bank of $188.09. The Bank’s counterclaim sought the payment of this sum.

At the time the Bank informed Witcher that it had repossessed the truck, it sent him a package containing items of personal property taken from the truck, along with an itemized list of those articles of property. There was no wearing apparel in the package nor were such items listed on the inventory. Witcher alleged that there were certain articles of clothing in the truck at the time of repossession which were worth about $210.00. The Bank’s agents testified there was no clothing in the truck at the time of repossession.

The evidence showed that Witcher’s loan was two months in arrears at the time the truck was repossessed. The note and security agreement signed by Witcher were introduced into evidence. The security agreement contained provisions authorizing acceleration of the loan and repossession of the collateral in the event of default.

The Bank’s first contention of error is that the first count of the complaint alleging conversion of the truck and clothing was not proven by the evidence. The Bank is correct in its position that a secured party may, on default, take possession of the collateral without judicial process if this can be done without a breach of the peace. Title 7A, Section 9-503, U.C.C.

In the case at bar the Bank held a security agreement which authorized it to take possession of the Ford pickup in the event Witcher failed to make the monthly payments as previously agreed. The evidence is without dispute that Witcher had failed to remit to the Bank the payments due on March 6 and April 6, 1975 and was therefore in default on April 11, 1975 when the Ford pickup truck was repossessed. There is no hint in the evidence of a breach of the peace committed during the repossession. Thus, repossession by the Bank of the 1974 Ford pickup truck was not a prima facie violation of law.

However, the issue before us is whether the Bank’s conduct was such that Witcher had a right to believe that his requested extension would be granted, or that late payments would be accepted and the truck would not be repossessed without further contact from the Bank, so that the Bank is now estopped from asserting its statutory and contractual right to demand payment in full and repossess the collateral without notice to Witcher. We hold that under the facts of this case the jury could properly find that the Bank is estopped from making such election and repossessing the security without giving prior notice to the purchaser and that therefore seizure of the 1974 Ford pickup truck was a conversion of said collateral.

Estoppel has been defined by one court, in dealing with a case similar'to the one before us, as: (1) knowledge of the facts by the party to be estopped; (2) intention by the party to be estopped that its conduct be acted upon, or such party acts so that the party asserting estoppel has a right to believe that the conduct is so intended; (3) ignorance by the party asserting estop-pel of the true facts; and (4) injurious reliance by the party asserting estoppel on the conduct. Varela v. Wells Fargo Bank, 15 Cal.App.3d 741, 93 Cal.Rptr. 428 (1971). This definition is in accord with the Alabama cases. See, e. g., Mooradian v. Canal Ins. Co., 272 Ala. 373, 378, 130 So.2d 915 (1961); Ellison v. Butler, 271 Ala. 399, 124 So.2d 88 (1960).

We think there is sufficient evidence here to warrant the jury’s finding that Witcher believed an extension had been granted. In a similar case, Varela v. Wells Fargo Bank, supra, the purchaser of an automobile under a contract of conditional sale had a record of sporadic payment, with some payments being made at the first of the month, some in the middle and some at the last of the month. The creditor-bank’s records were in considerable confusion, with discrepancies between the bank’s computer record and the record of payments noted by the bank in the purchaser’s payment coupon book. The court found that although the purchaser had received three notices that she was delinquent in her payments, her subsequent conversation with the bank in attempting to ascertain the amount of the delinquency, her promise that she would “get the money,” and the bank’s failure to make further contact with her after that conversation reasonably led the purchaser to believe that she was being given time to pay the delinquent installment. Noting that the repossession “must have struck her out of a clear sky,” the court held that there was an implied estoppel on the part of the bank from seizing possession of the vehicle.

In the case before us, Witcher testified that he talked with someone at the Bank and requested a modification of his schedule of payment, either by extending the payments or by reducing the amount of each payment. The Bank was not able to refute the allegation that the conversation took place and it was for the jury to decide whether that conversation did in fact occur. The jury, by its verdict, evidently concluded that the conversation did take place. Thus, we must take the conversation as a matter of fact.

Witcher does not contend that the person at the Bank with whom he talked actually granted Witcher an extension or in any other way affected Witcher’s obligation to repay the loan. Rather, his position is that he was told he would be notified by letter as to what future pattern of payment the Bank expected. Witcher testified that in reliance upon this statement he took no further action in the matter. Witcher further testified that this was the same course that had been followed in making a prior request for an extension; after making the request by telephone, Witcher had not made a payment until notified by letter that the extension had been granted. There was no testimony as to the lapse of time between the oral request and receipt of the extension. Although we are mindful of the ease with which debtors can allege facts such as those involved in this case, we do not think, in light of this purchaser’s past dealing with this creditor, that it was unreasonable of Witcher to expect that he would receive some sort of communication from the Bank as to the status of his loan and the payments he was required to make. Nor was there any particular reason for Witcher to suspect that this request for an extension would be denied, since each of his prior requests for extensions had been granted.

Even had Witcher not been justified in thinking an extension would be granted, we think the Bank was estopped in this instance from repossessing the pickup without prior notice to Witcher. The Bank produced a letter dated March 29, 1975, allegedly mailed to Witcher making a demand for payment and stating that the truck would be repossessed in absence of payment. However, an employee of the Bank admitted the possibility that the letter had never been sent, and Witcher denied receiving the letter. Thus, the evi-' dence would support a conclusion that the Bank did not notify Witcher of the impending repossession.

In Ford Motor Credit Co. v. Waters, 273 So.2d 96 (Fla.App.1973), the Florida court held that where a purchaser of an automobile under a conditional sale contract had established an irregular pattern of payments which deviated from the terms of the original contract, and the creditor’s conduct was such as to lead the purchaser to believe that late payments would be accepted, and that the purchaser would be allowed to catch up the payments in arrears, then the creditor could not thereafter repossess the automobile without notice and without demand for the unpaid balance of the purchase price. The purchaser could rightfully rely upon the past course of conduct and a concomitant duty by the creditor to notify the buyer prior to its changing the pattern by retaking the property.

The record of Witcher’s payments in the case before us indicates that only one payment was made prior to the sixth of the month, when payments were due. A Bank employee testified that every payment was received late. Thus, the Bank certainly was aware of the delinquent payments, yet apparently it made no objection. We conclude, therefore, that the Bank’s past pattern of conduct in accepting late payments now estops it from repossessing Witcher’s pickup truck without giving notice and making a demand for payment, and that its seizure of the truck constituted a conversion thereof.

Witcher also alleged that he had $210 worth of clothing in the truck at the time of the repossession to which the Bank had no claim, and that this property was taken by the agents of the Bank. The Bank contends that there was no clothing in the truck at the time of the repossession and that it did not take such clothing into its possession.

The Bank’s security agreement did not give it any claim to or control over clothing that might have been in the truck; therefore a jury question was presented as to whether there was clothing in the truck at the time of repossession and whether or not such clothing was converted by the Bank to its use. The jury, by its verdict, could be said to have concluded that clothing was in the truck and was converted by the Bank to its use.

The Bank’s second allegation of error is that Count Two of the complaint, i. e., the fraud count, is not supported by the evidence and therefore would not support the verdict. The pertinent part of Count Two is as follows:

“COUNT TWO
“(1) On and prior to April 11, 1975, Defendant and Plaintiff had been negotiating and discussing the matter of Plaintiff’s indebtedness to Defendant, which was secured by a chattel mortgage on a 1974 Ford Explorer Pick-Up Truck.
“(2) During said discussions, Defendant, acting by and through its officers, agents or employees, represented to Plaintiff that Plaintiff would be notified of a new schedule of payments to be made by Plaintiff for the discharge of said indebtedness; and Defendant so acting represented to Plaintiff that he would be notified of said new schedule of payments before Defendant took any legal action regarding said indebtedness, or expected further payments from Plaintiff on said indebtedness.” (Emphasis added.)

The supreme court in Mangina v. Bush, 286 Ala. 90, 237 So.2d 479 (1970), said:

“Fraud is never presumed and when relied upon must be distinctly alleged and proven, . . . and he who seeks relief on ground of fraud has the burden of proof.”

As can be readily seen from the quoted portion of Count Two of the complaint, Witcher alleged that the Bank had promised prior to repossession that he would be given a new schedule of payments for the discharge of his indebtedness and that this would be done before any legal action was taken to enforce the debt; also he was not expected to make further payments on said indebtedness until he received the new schedule of payments.

The only proof in the record relating to what the Bank’s agent told Witcher is quoted above. A careful reading of that statement alleged to have been made by the Bank’s agent shows that Witcher was promised only that the Bank would notify him whether it would or would not alter the schedule of payments or adjust the indebtedness in some other fashion; never did it promise him that he would receive a new schedule of payments, nor was he promised that the Bank would not take action on the indebtedness until he received the new schedule of payments. Furthermore there is no evidence in the record that Witcher was told that the Bank did not expect him to continue making payments of his existing indebtedness.

We are convinced that the evidence does not support the allegation of fraud made in Count Two; therefore, Witcher failed to sustain the burden of proof that had been placed on him as to this count. Such a conclusion, however, does not require a reversal of this case, for it has been held that where the complaint contains two or more counts and the jury returns a general verdict for the plaintiff, the verdict will be referable to the count that is supported by the evidence. Thrasher v. Darnell, 275 Ala. 570, 156 So.2d 922 (1963).

In the case at bar, we have decided that there was sufficient evidence in the record to support the conversion count, hence the verdict will be referable to that count.

No reversible error having been presented, the judgment of the trial court is affirmed.

AFFIRMED.

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


text:
    F. S. GOODRICH COMPANY v. WOLF RIDGE PLASTICS, INC.
    Civ. 855.
    Court of Civil Appeals of Alabama.
    Sept. 8, 1976.
    Thomas E. Bryant, Jr., Mobile, for appellant.
    Kirk C. Shaw, Mobile, for appellee.
   WRIGHT, Presiding Judge.

The court, sitting without a jury, rendered judgment in favor of plaintiff for $3,375.00 after a suit on a written contract. Plaintiff appeals. We affirm.

Plaintiff brought suit for $7,991.02 due by written contract made on February 4, 1974.

The contract was a sales representative contract between plaintiff F. S. Goodrich Company and defendant Wolf Ridge Plastics, Inc. It appointed plaintiff the exclusive sales representative for defendant in certain designated territory. The contract provided for sales of all products manufactured by defendant. Specific commission percentages payable to plaintiff were provided on all sales according to the purchase order amount involved after deduction of freight and purchased parts.

According to the testimony, at the time of the contract with plaintiff, defendant manufactured plastic products used by various industries. It fabricated or built fiber glass products for sale and also manufactured and sold plastic liquids which were used or applied by the purchaser according to particular needs. In an effort to develop greater use of its products, subsequent to plaintiff’s contract, defendant began to enter contracts involving both sale of its products and installation or application. In other words, it both sold and serviced.

On or about November 5, 1973, plaintiff began negotiations with National South-wire Aluminum Company of Hawesville, Kentucky upon a contract. The contract was finally entered into by defendant and Southwire in March of 1974. It provided both products and service. The total amount was initially $47,872.00, including materials and labor. As work progressed it became necessary for defendant to replace its original labor sub-contractor and use its own personnel to provide the labor. There were various amendments to the contract with Southwire for additional labor and material until the final amount was some $91,000.00. The amount of materials in the final contract was approximately $36,-252.00. Defendant admitted that plaintiff was entitled to commission of ten percent on that amount, or $3,625.00. Admittedly, $1,162.62 of such amount was paid prior to suit.

Plaintiff insisted that it was due ten percent of the final amount of the contract, including both products and cost of installation. Defendant insists that the contract with plaintiff provided only commission on sales of products manufactured by it.

The issue on appeal is whether the judgment of the trial court is contrary to the evidence.

The court below stated in open court, as a preface to judgment, that its award represented ten percent commission on all materials that went into the total contract with Southwire plus one-half the cost of labor in the initial contract together with interest.

As we understand the argument of appellant, which is only one page in brief, the error of the court is in not awarding a commission of ten percent of the full amount of the last amended contract. There is no contention that the trial court erred in calculation using the formula stated.

Therefore, assuming the judgment based upon ten percent of the price of products included in the total contract together with ten percent of one-half the cost of labor in the original contract and interest to be mathematically correct, we find no palpable error.

It seems that the court must have construed the contract between plaintiff and defendant to entitle plaintiff to commissions only on the sale of the products manufactured by defendant. The trial court did not specifically state such to be its finding. However, its judgment so indicates. Why, in awarding damages, it went beyond ten percent commission on the sale price of products is not clear to this court, but plaintiff understandably does not complain of that.

The construction of a written contract is for the trier of fact. McClendon v. Eubanks, 249 Ala. 170, 30 So.2d 261; Dunlap v. Macke, 233 Ala. 297, 171 So. 721. Our examination of the contract indicates that it was a commission contract for the sale of defendant’s manufactured products. There is no indication that it covered the total amount of sales plus service contracts brought about through any effort of the plaintiff. The commission rate chart attached to the contract clearly stated that the purchase order amount less freight and purchased parts was the commissionable sale.

The judgment is affirmed.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


text:
    Hazel Earl DeGraw THOMPSON v. Charles Henry THOMPSON.
    Civ. 838.
    Court of Civil Appeals of Alabama.
    Sept. 8, 1976.

      Bradshaw & Barnett and Ralph M. Young, Florence, for appellant.
    Tompkins & Tompkins, Tuscumbia, for appellee.
   BRADLEY, Judge.

This appeal is from a decree of the Circuit Court of Colbert County awarding child custody, child support and periodic alimony to the appellant-wife pursuant to a judgment of this court.

In March 1975 this court in Thompson v. Thompson, 54 Ala.App. 498, 310 So.2d 220 decided on original submission that the trial court’s award of a divorce to the wife was proper and that the award of the homeplace and forty acres of land adjoining was also proper, but we said that the wife should have been given custody of a fifteen year old daughter, child support, and periodic alimony. We remanded the case to the trial court for the entry of a judgment in accordance with these findings.

As directed, the trial court held a hearing on the issue of child support and periodic alimony. The parties stipulated that custody should be in the mother. After hearing testimony from both sides, the trial court awarded custody of the child to the appellant, awarded her $25.00 per week as child support and also decreed that she was to receive $35.00 a week as periodic alimony.

The evidence shows that at the first hearing in this matter, the appellee’s assets were around $200,000 and his debts amounted to $92,000. At the second hearing the evidence tended to show that appellee’s indebtedness had risen to about $117,000, with his grocery business losing money rather than showing a profit. It was also shown that negotiations were under way to sell the grocery business. Such a sale would net appellee approximately $300 a month. He testified that he had no other income.

On the other hand, in the first decree the wife had been awarded the house and forty acres of land. She testified that she was required to pay off the mortgage thereon at the rate of about $70 per month. In addition she rented the forty acres at the rate of $50 a month. She stated she was being considered for a supervisor’s job at her place of employment, and if promoted would receive an increase in pay. Appellant concluded that it would take $500.00 to $550.00 a month for her and her child to live.

Appellant first contends that the amount of child support and periodic alimony is inadequate to supply their needs and the trial court’s award in this regard should be reversed.

The criterion by which the amount of child support and periodic alimony is judged is the need of the child or wife as compared to the ability of the husband to respond to that need. Donahey v. Donahey, 52 Ala.App. 596, 296 So.2d 188 (1974); see also Ellison v. Ellison, 48 Ala.App. 80, 261 So.2d 911 (1972).

In the case at bar the appellant says that the amount she needs to support herself and the child is $500 to $550 per month, and the evidence shows that her present income from all sources including alimony and child support amounts to $586. Obviously, the needs of the appellant and her child are being met for the present but not wholly through the efforts of appellee. However, the record shows that in the last two years appellee’s debts have increased considerably while his income has shriveled to practically nothing. The trial court undoubtedly concluded that appellee’s ability to respond to the needs of the appellant and the child would not authorize a greater amount to be awarded than was decreed. Based on the evidence before the trial court, we cannot say that its award to the appellant and child was plainly and palpably erroneous.

Appellant next says that the trial court erred in requiring that the child support and alimony payments commence with the second decree rather than requiring said payments to be retroactive to the first decree. We see no merit in this argument.

The financial circumstances showing ap-pellee’s ability to pay the child support are pictured to be less now than before; consequently we feel that it would be an unfair burden on appellee to require that he pay back alimony and child support. The trial court’s decree in this regard is not in error.

Appellant further argues that the trial court erred in terminating the $50 per month alimony which had been granted pending a final determination of the matter after the first decree in this case. There is no error here.

Alimony pendente lite is based on the legal obligation of the husband to support and maintain the wife and thus depends on the relationship of husband and wife. Ex parte Tranum, 255 Ala. 143, 50 So.2d 447 (1951); Ex parte Phillips, 247 Ala. 94, 22 So.2d 611 (1945). A decree of divorce a vinculo immediately puts an end to all duties and obligations necessarily dependent upon the continuance of that relationship. Ex parte Thornton, 272 Ala. 4, 127 So.2d 598 (1961). Thus, a wife’s right to alimony pendente lite is terminated upon issuance of the final divorce decree.

A final decree was rendered by the trial court on June 14, 1974. The temporary alimony payment of $50 was properly terminated as of that date. We would also point out that the record is devoid of any request for alimony pendente lite the appeal to this court. See Segars v. Segars, Ala.Civ.App., 333 So.2d 155 (1976).

Finally, appellant says that she should be awarded attorney’s fees for her lawyer’s services in the various proceedings had in this case.

To begin, we would point out that appellant’s counsel was awarded $250 for his services in the first trial. Thereafter no request for the allowance of an attorney’s fee was presented to this court on the first appeal, nor does the record disclose that a request was made to the trial court for the award of an attorney’s fee in the second trial. A request has been made before this court for the award of an attorney’s fee on this appeal.

With regard to appellant’s request for attorney’s fees for services rendered in the proceeding below, the allowance of counsel fees under Title 34, Section 30, Code of Alabama 1940 (Reeomp.1958) is left to the sound discretion of the trial court. Ledyard v. Ledyard, 46 Ala.App. 27, 237 So.2d 511 (1970). Where there was no determination by the trial court on that question, failure to award counsel fees is not reviewable on appeal. Dunlavy v. Dunlavy, 283 Ala. 303, 216 So.2d 281 (1968); Apperson v. Apperson, 217 Ala. 157, 115 So. 229 (1928).

Appellant’s request for the award of an attorney’s fee here is timely.

The award of an attorney’s fee on appeal in a domestic relations case is discretionary with this court. Walker v. Walker, 56 Ala.App. 98, 319 So.2d 718 (1975); Colombaro v. Colombaro, 54 Ala.App. 157, 306 So.2d 23 (1975). This is so even though appellant was not successful in her appeal. Although we find that the trial court did not abuse its discretion in the amount of alimony awarded appellant, she is likely to have need of what assets she has. See Shell v. Shell, 48 Ala.App. 668, 267 So.2d 461, cert. den. 289 Ala. 751, 267 So.2d 467 (1972). In the instant case, we find that a reasonable attorney’s fee should be awarded appellant for her counsel’s services in this appeal. We further conclude that $300 would be a reasonable amount.

For the reason stated above, the judgment of the trial court is affirmed, and an attorney’s fee of $300 is hereby awarded to appellant for this appeal.

ATTORNEY’S FEE AWARDED; JUDGMENT AFFIRMED.

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


text:
    Helen McElrath TOWNSEND v. John William TOWNSEND.
    Civ. 800.
    Court of Civil Appeals of Alabama.
    Sept. 8, 1976.
    James M. Sizemore, Jr., Sylaeauga, for appellant.
    Bell, Lang, Bell & Fielding, Sylaeauga, for appellee.
   BRADLEY, Judge.

This appeal is from a final decree of divorce rendered by the Circuit Court of Talladega County. A complaint was filed by the appellant-wife seeking a divorce from appellee-husband, custody of the parties’ three minor children, and child support in the amount of $50.00 per week. A decree pro confesso was entered granting appellant the relief sought. Thereafter, ap-pellee moved to have the decree set aside and filed his answer and counterclaim. After an oral hearing the circuit court granted a final decree of divorce, awarding custody of the minor children to appellant and $50.00 a month for child support.

The sole issue before this court is whether the trial court abused its discretion in granting $50.00 per month for child support payments. We find such award to be plainly and palpably unjust, and an abuse of judicial discretion. We reverse.

The evidence shows that the parties were married on January 26,1959. The marriage produced three children who are now ages thirteen, twelve and eight. In December 1966, the parties separated.

For the past six years appellant has been employed at the same textile mill which employs her husband. She earns $3.14 per hour; he earns $3.26 per hour. Her weekly income after deductions for credit union expenses, taxes and insurance, is approximately $72.00; his weekly income after the same deductions is approximately $67.00. Both parties testified to the amount of monthly expenditures for food, utilities, and travel expenses each incurs. Appellant’s expenses exceed her income by approximately $100 each month. Appellant further testified that she faces surgery which will require hospitalization for eight or nine days and that she will not be able to work for three months thereafter, during which period she will be without income.

Appellee testified that he had occasionally given appellant money during their eight years of separation, that he had spent some $300 or $400 buying Christmas gifts for the children, and that he bought the children necessities whenever they asked for them. In response to a question from the court, appellee stated that he could pay $25.00 per week to support the children.

The amount of child support to be granted depends upon the needs of the child or children and the ability of the parent to pay; the award lies within the sound discretion of the court. Ellison v. Ellison, 48 Ala.App. 80, 261 So.2d 911 (1972). The general rule is that where the evidence is heard ore tenus by the trial court, its findings are presumed to be correct and will not be overturned unless plainly and palpably wrong and unjust. Baggette v. Baggette, 279 Ala. 167, 182 So.2d 898 (1966).

After reviewing the evidence we conclude that the trial court abused its discretion in awarding only $50.00 per month for child support. Although it appears that the parties are equal in their earning capacity, the ledger is not evenly balanced. While appellee is supporting only himself, there are four members in appellant’s household. As we said in Chancellor v. Chancellor, 52 Ala.App. 10, 288 So.2d 794 (1974), we believe that one person can live on less income than four people.

Furthermore, appellee-husband testified that he thought that the sum of $25.00 per week would be a reasonable amount and that he was able to pay that amount. This sum is twice the figure awarded in the final divorce decree. The apparent disregard of appellee’s ability to pay, according to his own testimony, particularly in light of the evident need of the wife and children, was the sort of arbitrary action which goes beyond judicial discretion. Horsley v. Horsley, 50 Ala.App. 445, 280 So.2d 150, cert. den. 291 Ala. 782, 280 So.2d 155 (1973).

Appellee refers us to several cases which upheld grants of $50.00 per month for child support where one or more minor children were involved. These cases are not controlling here, for each case of this type is to be decided according to all the surrounding circumstances, the relative status of the parties, and the need of the minor children. Moreover, in each case cited by appellee, the minimal child support award was coupled with a property settlement or with a continuing responsibility on the part of the husband-father to pay various expenses incurred by the children. In the case before us there was no additional property settlement or award of alimony. The appellee is not charged with paying any medical or educational expenses that might be incurred by the children in the future.

We hold therefore that in this instance the learned trial court erred to reversal when it failed to grant a reasonable sum to the wife as child support. Hence, the trial court’s judgment as to the amount of child support awarded is reversed and the cause remanded for the entry of a judgment awarding $25.00 per week to the wife as child support.

REVERSED AND REMANDED WITH DIRECTIONS.

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


text:
    Leamon Ollie BOONE v. DIRECTOR OF the DEPARTMENT OF PUBLIC SAFETY of the State of Alabama.
    Civ. 842.
    Court of Civil Appeals of Alabama.
    Sept. 8, 1976.
    William G. Hamm, Jr., Huntsville, for appellant.
    William J. Baxley, Atty. Gen., and Kent B. Brunson, Asst. Atty. Gen., for appellee.
   WRIGHT, Presiding Judge.

This is stated to be an appeal from a judgment of dismissal and judgment denying a motion to strike the judgment of dismissal. As this court is unfamiliar with a motion to strike a judgment, we shall consider such motion as one to vacate the judgment under Rule 59(e), ARCP. After such consideration, the judgment below is affirmed.

The proceedings from which this case arose are unusual and prolix. They are set out hereafter:

On May 29, 1973, Leamon Ollie Boone, through counsel William G. Hamm, Jr. filed in the Circuit Court of Madison County a form instrument, which alleged that it was an appeal from an order of suspension by the Director of the Department of Public Safety. The appeal was stated to be brought under Title 36, Sec. 74(43) of the Code of Alabama (1940). Such statute is a part of the Motor Vehicle Safety Responsibility Act. The instrument averred further that the Director issued a notice of suspension on June 6, 1973, and that it was effective on that date. David R. Archer, Circuit Judge, on the same date of the filing entered a stay of the order of suspension. It will be noted that the date of the filing and stay order was May 29,1973, and the instrument alleged the order of suspension was issued June 6, 1973. It is further to be noted that the instrument failed to allege the circumstances giving rise to the suspension, whether it arose from failure to file notice of an accident and furnish evidence of insurance or financial responsibility, or whether it arose out of a conviction requiring revocation. Neither does the instrument indicate whether the suspension was of license and/or registration.

To the appeal from action of the director under the Safety Responsibility Act, the Director moved to dismiss alleging that the Director had issued no suspension under such act, but had rather issued a mandatory revocation of the drivers license of Boone after final conviction for driving while intoxicated; that no appeal could lie from such act of revocation and that the Madison County Circuit Court was without jurisdiction.

On August 16,1973, the motion to dismiss was heard by the court. The following judgment was entered:

“This matter coming on for hearing on the Motion by the State to dismiss the Appellant’s petition for Stay of the order of the Department, the Court having ascertained that the defendant has been convicted of driving while intoxicated, and on said conviction his license was automatically revoked. It is therefore the Order of the Court that the Petition of the Appellant Leamon Ollie Boone being and the same, is dismissed and the Director of the Department of Public Safety may proceed in said case.
“Dated this the 16th day of August, 1973.”

No appeal was taken from the above order. It would appear that the matter should have ended, at least in the Circuit Court of Madison County. It did not.

On September 24, 1973, Boone filed another instrument of appeal in the same form as the first except it averred another order of suspension from the Director dated August 26, 1973. Again Judge Archer entered a stay.

On April 1, 1974, Judge Mayhall entered a judgment of dismissal of that appeal upon motion of the attorney for Boone. Attorney Hamm represented in the second appeal.

On May 6, 1974, Boone, through attorney Hamm, filed another appeal, this time averring suspension by the Director by order dated June 6, 1973, effective April 26, 1974 in accident case Number 73-1214. (That case number was the number of the appeal dismissed on his own motion on April 1, 1974.) Again Judge Archer entered a stay of the Director’s order.

To that appeal the Director again filed a motion to dismiss listing the same grounds as to the first appeal and in addition the ground that the appeal was untimely brought. (The time for appealing a suspension under Title 36, Sec. 74(43) is 60 days from the date of the order of suspension.) The Director further filed claim for actual and punitive damages for abuse of process, setting out therein the prior appeals and their dispositions.

On November 13,1975, without ruling on the Director’s motion and claim, the court, with Judge William D. Page sitting, entered an order of dismissal of the cause upon motion of Boone through his attorney, Hamm.

On November 26, 1975, Boone through attorney Hamm again filed an appeal from the order of the Director dated June 6, 1973. (It was stated in each of the appeals filed that it came within 60 days from the issuance of the Director’s order.) This latest appeal was shown on its face to have been filed over two and one-half years from the date of the suspension.

Judge Archer again signed a stay order.

On December 30, 1975, Judge Page entered an order of dismissal ex mero motu. He listed therein, in order, the previous appeals taken by Boone together with their disposition. He pointed out that though costs in each case had been taxed against Boone, none of the costs had been paid. He then dismissed the case pursuant to Rule 41(d), ARCP.

It is from the ex mero motu judgment of dismissal that Boone appeals. The issue presented is whether one circuit judge may dismiss ex mero motu the order of another judge of the same circuit. Appellant also argues in brief that Rule 41(d) does not authorize a dismissal but only a stay until costs are paid in actions previously brought upon the same claim and previously dismissed. This court finds no merit in either contention.

It is unnecessary to decide the issue stated on appeal. The record does not present such issue. The presentation of the appeal to Judge Archer upon its filing was merely a procedural step available under the statute. Title 36, Sec. 74(43). The granting of the stay did not give exclusive control of future proceedings in the case to Judge Archer. Judge Page in entering his order of dismissal was not reconsidering the matter presented to Judge Archer, but acted concerning final disposition of the matter.

Neither do we need to decide the other contention presented by Boone in brief. In view of the record before us and Judge Page, the court was without jurisdiction to entertain the matter. On that basis, the dismissal ex mero motu was proper. The fact that Judge Page dismissed for another reason, whether a correct reason or not, doesn’t matter on appeal. Birmingham Artificial Limb Co. v. Allen, 280 Ala. 445, 194 So.2d 848. The dismissal of an action ex mero motu when it shows upon its face that the court is without jurisdiction is always proper. Ramsey v. Wilkins, 253 Ala. 614, 46 So.2d 407.

As previously pointed out herein, the appeal showed on its face that the statutory limitation of 60 days for appeal had expired more than two years previous to filing. In addition, Judge Page could, and according to his judgment did, take judicial knowledge of his own court’s records concerning previous proceedings in the same matter. Lovejoy v. State, 32 Ala.App. 110, 22 So.2d 532, cert. denied, 247 Ala. 48, 22 So.2d 537. That record showed the judgment entered by Judge Mayhall on August 16, 1973, which concluded the right of further appeal in the matter. The judgment of dismissal by Judge Page was proper and without error. It is affirmed.

This court cannot end its decision in this matter with a mere affirmance. We must state that the record reflects the most flagrant and apparently planned course of abuse of process of the courts that we have seen. Counsel for Boone has misused and abused the process of and the valuable time of the Circuit Court of Madison County at least since the judgment of August 16,1973, in order to thwart the legislative mandate given the Director of Public Safety of the State of Alabama. The repeated filing of appeals of the matter after dismissal is clearly shown to be deliberate and with full knowledge that they were without support in law.

We find that the continuation of such course of conduct continues in the appeal to this court. We consider the appeal to be frivolous under Rule 38 of the Alabama Rules of Appellate Procedure. It is therefore ordered that damages in the sum of $500.00 be awarded the appellee, State of Alabama, as an expense of response to the appeal, together with double cost in this court. Execution therefor may issue for such damage and cost against appellant Leamon Ollie Boone.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.