text:
    STATE FARM MUTUAL AUTOMOBILE INSURANCE CO. v. Clyde Joseph LING.
    SC 1970.
    Supreme Court of Alabama.
    July 22, 1977.

      James H. Porter, Huntsville, for appellant.
    Daniel B. Banks, Jr. of Banks & Cartron, Huntsville, for appellee.
   EMBRY, Justice.

The outcome of this appeal turns on whether State Farm Mutual Automobile Insurance Company had a duty to its insured, Clyde Joseph Ling, to disclose that his personal injury claim against Crescent Transit Company, another of State Farm’s insureds, was subject to the one year statute of limitations or, with intent to deceive him, did not disclose that fact.

Ling filed this action against State Farm claiming damáges for fraud, deceit, misrepresentation and breach of fiduciary and confidential relationship. The action was tried on the theory that State Farm suppressed a material fact (that Ling’s claim was subject to the one year statute of limitations) which it had an obligation to communicate to him arising from the confidential relations between them or from the particular circumstances of the case as contemplated by Code of Ala., Tit. 7, § 109.

This appeal is from a judgment entered upon return of verdict in favor of Ling in the amount of $20,000. We affirm.

There are two issues presented for review:

1. Whether "under the facts of this case, State Farm, the insurer of both Ling and Crescent Transit, had a duty to disclose to Ling that a one year statute of limitations was applicable to his claim.

2. Whether, under the evidence, fraud was perpetrated grossly, maliciously, oppressively, and with intent to deceive and thus justified the award of punitive damages.

Ling and Crescent Transit were involved in an automobile accident on 27 November 1973, on the occasion of which both had automobile insurance with State Farm. The allowable conclusions and inferences to be drawn from the evidence in this case are sharply disputed, however, the jury was authorized to conclude from that evidence the following:

Ling promptly reported the accident to State Farm and was told everything would be taken care of but that he should call the claims office and report it, which was done. At this time State Farm had already determined that Crescent Transit was the party at fault in the accident. In the course of subsequent dealings, the evidence establishes, as Ling contends, that State Farm informed Ling it insured both him and Crescent Transit and it had assumed all responsibility for the accident. He was repeatedly assured by State Farm that he had nothing to worry about, the accident was entirely the fault of Crescent Transit and his expenses would be paid; State Farm would settle his claim. A relationship of natural trust and confidence in State Farm grew out of Ling’s dealings with it by State Farm’s friendly and reassuring words and actions from a position of superior knowledge of the subject of their dealings with Ling: insurance claims. Ling was lulled into a sense of security by, and relied upon, the words and acts of State Farm. With knowledge of the running of the statute of limitations, and without informing Ling, State Farm advised Ling shortly before the statute ran that it would require a doctor’s report as a condition to settling the claim, however, it did not inform him that if the statute ran before receipt of the doctor’s report it would not settle. It contacted him last on 21 November 1974 (the statute ran on 28 November, 12:01 a. m.). The claims adjuster reported to his superintendent on 3 December 1974 that no suit had been filed and requested advice “as to what my next move should be.” In response, the adjuster was advised. “The statute has run. If you receive contact from the claimant, deny the claim.” Actual losses suffered by Ling as medical expenses alone were $3,383.87.

In February 1975, Ling filed an action against Crescent Transit for damages for personal injuries and Crescent was granted summary judgment in that action on the basis of the one year statute of limitations.

The main thrust of Ling’s action is fraud based upon Code of Ala., Tit. 7, § 109:

“Suppression of the truth. — Suppression of a material fact, which the party is under an obligation to communicate, constitutes fraud. The obligation to communicate may arise from the confidential relations of the parties, or from the particular circumstances of the case.”

He would also be entitled to recover if the proof satisfied the jury that State Farm failed to disclose material facts to him with an intent that he be deceived. A clear statement of the applicable rules of law governing this case is found in Chapman v. Rivers Construction Co., Inc., 284 Ala. 633, 227 So.2d 403 (1969):

“§ 109 is declaratory of the common law. In dealings between persons standing in confidential relations, the law imposes an obligation on one party to safeguard the interests of the other party with the same fidelity with which he safeguards his own. Withholding facts, material to be known, is a breach of such legal duty, regardless of intent to deceive, and is a legal fraud. When the circumstances of the particular case impose a like duty, the same rule obtains. So reads the statute. In the absence of confidential relations, or special circumstances imposing a like duty, the rule seems settled that nondisclosure of facts to be fraudulent must be for purposes of deceit. * * * ”

The record contains ample evidence that supports the jury’s conclusion that a relationship of trust and confidence in State Farm by Ling was engendered through the actions and words of the agents of State Farm who dealt with him over the period of four days short of the one year period of limitations, of which they were well aware. This being true, it was the duty of State Farm to disclose to him that vitally material fact of the limited period of time during which he must negotiate the settlement that it assured him it stood ready to make. For a statement of the duty owed him in this regard see Brasher v. First National Bank of Birmingham, 232 Ala. 340, 168 So. 42 (1936).

We see no equation of the relationship between Ling and State Farm, under the evidence before the jury, with that of the estranged husband and wife in Tonsmeire v. Tonsmeire, 285 Ala. 454, 233 So.2d 465 (1970), relied upon by appellant. Testimony of one of State Farm’s claims adjusters is enlightening. During his testimony he stated it was the policy of State Farm to control the claimants they dealt with; that he knew the statute was “probably going to run”; that he had “been reassuring and contacting Ling on a regular basis”; that “the very thing that he as an insurance adjuster tries to avoid is a claimant going to an attorney or filing a lawsuit”; that “the purpose of staying in contact with them is to get their trust and confidence so they will rely on him to settle and handle their claims”; and that “I suppose I had his [Ling’s] confidence.”

Neither the parties, in briefs or argument, nor this court, have found a precisely factually analogous authority in support of the position of appellant or appellee, although this case necessarily turns on how the particular facts are operative within, the framework of governing principles of law. Brasher, supra. Proceeding from the premise that there was ample evidence to authorize the jury to conclude, as it must have, that a confidential relationship existed between the parties, with Ling’s confidence reposed in State Farm, what, then, were the material facts that should have been disclosed to Ling which were not.

Those would include, we hold:

The fact that Crescent Transit was not only also insured by State Farm but also that in the negotiations with Ling it was protecting the interests of his defendant, Crescent. State Farm was in the position of representing two antagonistic interests; it should have disclosed fully the nature of its relationship with each. See Girard Fire and Marine Insurance Co. v. Gunn, 221 Ala. 654, 130 So. 180.

In this case there was a duty to inform Ling of the time limitation within which his claim could be settled or after which it would be barred. State Farm says the limitation period is a matter of law and there can be no fraud from a concealment or misrepresentation as to it. The exception to that general rule is present here: State Farm with its special and superior knowledge of insurance claims procedures that invited and gained Ling’s confidence which justified Ling’s reliance upon the assurances of State Farm required disclosure by it and failure to do so was fraud. See Bank of Loretto v. Bobo, 37 Ala.App. 139, 67 So.2d 77.

There was an intent to deceive evidenced by the last minute requirement of a doctor’s report with knowledge the statute would run before the ability to furnish it. This would have been avoided by fulfilling the duty to disclose to him, in sufficient time, that the doctor’s report would have to be in hand and settlement made within the one year period or his claim would be barred.

Appellant places great reliance on Baxter v. Royal Indemnity Company, 285 So.2d 652 (Fla.App.1973). It is cited for the proposition that in the instant case no confidential relationship could exist between Ling and State Farm. In the cited case it was held that the relationship was the antithesis of a confidential or fiduciary one. Appellee agrees. We also agree. There is an evident distinction between Baxter and this case. There Baxter made claim against his insurer for policy limits under uninsured motorist coverage and offered to settle for policy limits although he sustained damages in excess of those limits. The insurer refused to settle until the fact of liability and extent of damage was fixed by arbitration as provided by the policy. Baxter was awarded the policy limits by arbitration, those limits were paid, after which Baxter sued for the excess, and other damages, on the theory that his insurer acted in bad faith. His action was dismissed for failure to state a claim and the Florida Appellate Court held he had no cause of action. The factual difference distinguishing Baxter from this case is very simple: from the outset, Baxter’s insurer took an adversary stance, refused his demands, and make no assurances that it would take care of everything, etc., as were made in this case.

We therefore hold that under these particular circumstances, there existed the confidential relationship that required State Farm to disclose to Ling the one year limitation for bringing his action for personal injuries. We also hold there was sufficient evidence to authorize the jury to conclude that State Farm intended to deceive and injure Ling.

State Farm further contends there was no evidence in this case to support a jury award of punitive damages. We disagree.

Our cases have uniformly held that punitive damages may be awarded in actions for fraud if there is evidence from which the jury can conclude that the fraud was malicious, oppressive, or gross. For a late holding to that effect see Old Southern Life Insurance Co. v. Woodall, 295 Ala. 235, 326 So.2d 726 (1976).

From the testimony of the claims adjuster, the evidence in the record .that State Farm’s attorney had informed it that no suit had been filed, and State Farm directing the claims adjuster to deny Ling’s claim because of the running of the statute of limitations, the jury could reasonably conclude that the actions of State Farm were of the type noted above. In addition, the assertion of the statute of limitations as an affirmative defense in Ling’s suit against Crescent Transit adequately answers the questions concerning State Farm’s “good faith.” Undoubtedly the jury concluded that the fraud was malicious, oppressive, or gross; therefore, the award of punitive damages was justified.

AFFIRMED.

BLOODWORTH, MADDOX, JONES and ALMON, JJ., concur.


source: Caselaw Access Project

author: EMBRY, Justice.

license: Public Domain

text:
    VINTAGE ENTERPRISES, INC. d/b/a Colonial Mobile Homes v. A. E. CASH and Helen Cash.
    SC 2087.
    Supreme Court of Alabama.
    July 22, 1977.
    Rehearing Denied Aug. 19, 1977.

      Phillip A. Laird and Henry C. Wiley, Jr., for Elliott, Laird & Wiley, Jasper, for appellant.
    J. William Thomason, Birmingham, for appellees.
   EMBRY, Justice.

This is an appeal from a judgment entered on a jury verdict in favor of the plaintiffs, A. E. and Helen Cash, in the amount of $11,500 and a directed verdict in their favor in the amount of $1,500 under the Truth in Lending Act. Defendant, Vintage Enterprises, Inc. d/b/a Colonial Mobile Homes, filed its motion for new trial, which was denied, and defendant now appeals.

The case arose from the sale of a mobile home by Vintage, which had been repossessed from a previous purchaser, to A. E. and Helen Cash.

The Cashes claimed damages for breach of warranty, fraud and violation of the Federal Truth in Lending Act. The complaint charges that Vintage made an express warranty that the mobile home was “like new” and “had never been lived in”; that Vintage impliedly warranted the mobile home to be of merchantable quality and fit for the particular purpose of use as a residence; that the representations made by defendant that the mobile home was “like new” and “had never been lived in” were made for the purpose of inducing the Cashes to purchase the mobile home; and that Vintage fraudulently concealed from the Cashes the fact that the mobile home was damaged or defective. Furthermore, plaintiffs alleged that defendant failed to inform them of the annual percentage rate and finance charge applicable to the transaction in violation of the Federal Truth in Lending Act.

The defendant assigns the following as grounds for reversal:

1. The trial court erred in directing a verdict for plaintiffs in connection with the count which claimed damages for the alleged violation of the Federal Truth in Lending Act.

2. The trial court erred in failing to grant defendant’s motion for new trial for continued improper comments to the jury by counsel for plaintiffs.

3. The trial court erred in submitting the question of fraud to the jury and allowing the jury to consider punitive damages.

4. The trial court erroneously charged the jury as to the proper measure of damages for breach of warranty.

We need consider only defendant’s first ground for reversal — the trial court erred in directing a verdict in favor of plaintiffs on Count G of the amended complaint (violation of the Truth in Lending Act) as we have concluded that ground requires reversing and remanding for a new trial.

Section 226.8 of Regulation Z, 12 C.F.R. p. 755, which was promulgated to carry out the purposes of the Truth in Lending Act, 15 U.S.C., § 1601, et seq., requires among other things the following:

“(a) General Rule. Any creditor when extending credit other than open end credit shall, in accordance with § 226.6 and to the extent applicable, make the disclosures required by this section with respect to any transaction consummated on or after July 1,1969. Except as otherwise provided in this section, such disclosures shall be made before the transaction is consummated. At the time disclosures are made, the creditor shall furnish the customer with a duplicate of the instrument or a statement by which the required disclosures are made and on which the creditor is identified. * * ” (emphasis added)

Therefore, the question presented under this assignment of error is whether the trial court was correct in granting the plaintiffs’ motion for directed verdict on Count G of the amended complaint. We hold the trial court erred in directing a verdict on that count.

Count “G” of the amended complaint alleges:

“2. On or about April 5, 1974, the Plaintiffs contracted with the Defendants for the sale and purchase of a mobile home to be used by Plaintiffs as a residence. The Defendants’ contract with the Plaintiffs was a consumer credit transaction and the Defendants failed to inform Plaintiffs of the annual percentage rate and finance charge applicable to said transaction. Such failure to inform and disclose was a violation of the Federal Truth in Lending Act.”

The tendencies of the evidence on this count were on April 5, 1974, the plaintiffs signed an “Assumption Agreement” whereby they were to assume the obligation of the previous owner; part of that agreement signed by Augustus E. Cash provided: “Receipt of a copy of this agreement and copy of the original Retail Security Agreement (‘Instrument’) is hereby acknowledged by Purchaser.” The Assumption Agreement clearly sets out the total amount due; the number of payments; the amount of each payment; and the acknowledgment contained in the Assumption Agreement refers to the original agreement, which sets forth the amount of the finance charge and the annual percentage rate.

The testimony about whether these documents, or copies of them, were actually received by plaintiffs is as follows:

Mrs. Cash testified that they did not receive copies of the documents at the time they were signed; Mr. Cash stated he didn’t know whether they got copies or not; and Mr. Smith, who was at the time of the transaction a salesman of defendant, testified the Cashes did receive a copy at the time of purchase.

The defendant contends that the inconsistencies in the testimony of the witnesses on this question created a scintilla of evidence which precluded the granting of a directed verdict. We agree. As expressly set out in Rule 50(e), ARCP, the “scintilla” rule is preserved as the standard by which the trial judge must determine the propriety of granting a motion for directed verdict. Alabama Power Co. v. Taylor, 293 Ala. 484, 306 So.2d 236 (1975).

Chambers v. Buettner, 295 Ala. 8, 321 So.2d 650 (1975), held that a motion for directed verdict at the close of plaintiff’s case tests the sufficiency of the evidence to entitle the claim for relief to be submitted to the jury. Also, in Chambers, we quoted from Alabama Power Co. v. Taylor, supra:

“ * * * If a trial judge decides there is not a scintilla of evidence upon which the jury could reasonably reach a verdict * * * he can direct the verdict without submitting the credibility of the witnesses to the jury if their testimony is uncontradicted and ¡fe J) unimpeached.

A defendant, as well as a plaintiff, is entitled to the benefit of the scintilla rule. McHugh v. Harrison, 266 Ala. 138, 94 So.2d 756 (1957); Alabama Power Co. v. Taylor, supra.

The trial and appellate courts must view the evidence in the light most favorable to the party against whom the motion was made. Alabama Power Co. v. Taylor, supra. In this case, in the most favorable light to Vintage. Thus viewed, the evidence on this question was sufficient to require the issue of violation of the Truth in Lending Act to be submitted to the jury.

For error in directing a verdict in favor of plaintiffs on Count G of the amended complaint, this case is reversed and remanded.

REVERSED AND REMANDED.

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


author: MADDOX, Justice.

text:
    Will JONES v. Ida ESTELLE et al.
    SC 2055.
    Supreme Court of Alabama.
    July 29, 1977.

      M. Wayne Wheeler, Birmingham, for appellant.
    Chester W. Austin, Birmingham, for ap-pellee Ida Estelle.
    Ezra B. Perry, Jr., and Frank Dominick, Birmingham, for Habco Rental, Inc.
   MADDOX, Justice.

Will Jones sought to set aside deeds to ten pieces of property claiming that Ida Estelle, the grantee, had procured them by fraud, undue influence, forgery and breach of a fiduciary relationship. Estelle had transferred one piece of property to Habco Rental. In a separate proceeding, Habco had filed an ejectment action against Will Jones, concerning this parcel which had been transferred to it by Estelle. Both actions were consolidated for trial.

The cause was heard by the court without a jury. The trial court found that Jones had failed in his burden of proving that he did not knowingly and voluntarily execute the deeds in question. He further found that there was no direct evidence produced to support the allegations of fraud and undue influence. He, therefore, rendered a judgment for Estelle and Habco. Jones' motion for a new trial was overruled, and he appealed to this court.

Jones claims that the court erred in its final decree in that it failed to find from the facts that a “de facto” partnership existed between him and Estelle, which would have created a confidential relationship between him and Estelle, and which would have placed the burden on Estelle to show that the deeds were his voluntary and well-understood acts. Jones also contends that the court erroneously held that there was no direct evidence to support a finding of fraud and undue influence. He also disagrees with the trial court’s finding that the deeds were regular and proper on their face; and, lastly, he asserts that reversible error was committed when the court sustained an objection to the introduction of records of the Board of Equalization.

Except for the issue concerning the introduction of evidence, Jones basically asks this Court to determine that the trial court’s findings of fact were plainly and palpably wrong, and that the court’s application of the law to those facts was similarly wrong. This we refuse to do.

After reviewing the record, we are of the opinion that the trial court’s findings are supported by the evidence, and are not plainly and palpably wrong. Jones claims that the evidence clearly shows that “some kind of ‘de facto’ partnership arrangement . ” was created between him and Estelle. We disagree. In fact, much of the evidence offered by Jones negated the existence of a partnership relationship. In any event, the evidence on the partnership issue was conflicting and there was sufficient evidence from which the trial court could have found that an agreement to share in profits and losses did not exist. Odess v. Taylor, 282 Ala. 389, 211 So.2d 805 (1968).

Jones’ contention that the trial court erred in failing to find that there was fraud is without merit also. The trial judge heard the testimony and had an opportunity to observe the demeanor of the witnesses. The weight to be given such evidence is for the trial judge, and this Court will indulge every presumption in his favor. Baldwin v. Odom, 291 Ala. 129, 278 So.2d 713 (1973). This presumption takes on an even stronger stance when the review we are asked to make involves questions of undue influence and fraud, both of which require clear and convincing proof. See Crosby v. Baldwin Co., 227 Ala. 122, 148 So. 814 (1933); Terry v. Terry, 336 So.2d 159 (Ala.1976).

Jones’ claim that the trial court erred in excluding the Board of Equalization’s records is also without merit. The stated purpose for Jones’ offering the Board of Equalization records on the subject property was that:

“ . . . They set market value, they make an appraisal based on market value, and that’s primarily — we want to set out for the Court each and every piece of property, and each and every valuation, and each and every work permit, and how long Will had the property before the transfer. . . . ”
% sf: s): *
“ . . . We offer to show the valuation of each and every lot, the work done on the lot, the valuation primarily of the lot, and the information contained in those files. . . . ”

Counsel for Jones later stated that an additional purpose for offering the files was for identification of the subject property. In brief, Jones argues:

“ . . . Will Jones sought introduction of these records to show the value of the real estate in toto, the evidence of repair work done by Will Jones, the length of time of ownership, and to provide the Court with a picture of the property in question. The question to this Court is whether any of this evidence should have been excluded where Will Jones is seeking to set aside the deeds based on fraud, undue influence, or violation of fiduciary duty.
“While adequacy of the consideration is not a ground to set aside a deed in and of itself, it is a legitimate inquiry of the Court in connection with other facts. The case law directs the Court to make an inquiry into the consideration to determine where the consideration (in this case, the consideration was nothing) is so gross as to shock the consciousness of the court. Henderson vs. Rummage, 112 So. 917, 216 Ala. 692 (1927). . . .
“The determination by the Court of the total value of the property transferred when the land changed hands would be relevant as to the issue of whether or not the transactions are fair or just. By excluding value of the real property, the Plaintiff was deprived óf a comparison between the price paid and the total value.
“The required evidence was not before the Court and the Court was left to guess at the values without any sound basis.

The trial court did not refuse to permit Jones to prove the value of the property; he merely refused to admit the records of the Board of Equalization as proof of that value. While these records might be an admission against interest, if the owner participated in fixing the valuation, they would be inadmissible as evidence of market value in this case, since they would constitute hearsay. Jones was in court and could have testified as to the market value. The trial judge did not err in refusing to permit these tax records to be admitted. See State v. Griffith, 292 Ala. 123, 290 So.2d 162 (1974). In summary, the record does not show that Jones was prevented from introducing evidence of market value, only that he could not do so with tax assessment records. In any event, even assuming that market value was relevant (the consideration was admitted as being nothing), the refusal of the trial court to admit the assessment records would at most be harmless error. Rule 61, ARCP; Rule 45, ARAP.

The judgment of the trial court is due to be affirmed.

AFFIRMED.

FAULKNER, ALMON, SHORES and BEATTY, JJ., concur.


author: SHORES, Justice.

text:
    STATE of Alabama v. K. M. WALL and Carol Wall.
    SC 2120.
    Supreme Court of Alabama.
    July 29, 1977.
    Maurice F. Bishop, Birmingham, William T. Denson, Goodwater, for appellant.
    Robert J. Teel and Frank S. Teel, Rockford, for appellees.-
   SHORES, Justice.

This condemnation proceeding was originally filed by the state in the Probate Court of Coosa County on August 11, 1975. The property owners (Walls) appealed the probate court award to the circuit court on September 29, 1975.

The parties stipulated, and the trial court entered a pretrial order so stating, that the state had a right to condemn the land and rights in lands sought to be condemned, and that the only issue in the proceeding was the amount of compensation to which the property owners were entitled.

This issue was tried to a jury which returned a verdict in favor of the property owners in the amount of $33,500. The verdict was rendered on April 15, 1976, after pronouncing the verdict in open court. On that date, the trial judge made the following docket entry:

“4-15-76 Jury and verdict finding the issues in favor of defendants and assessing damages in the sum of $33,500.00. The final decree and judgment will [be] entered by the court at a later date, /s/ K. Ingram, Judge”

On May 13, 1976, the state filed a motion for new trial. On May 19, 1976, the trial court entered an order setting the motion for new trial for hearing on June 28, 1976.

Prior to June 28, 1976, the state requested, and the court granted, a motion continuing the hearing on the new trial motion. No other date was fixed for the hearing on the new trial motion and no order was entered granting the continuance until October 18, 1976, although it is not disputed that the state’s motion for a continuance was granted prior to June 28, 1976.

On July 27,1976, the trial court entered a final judgment in the case, awarding to the state the rights sought in the lands condemned upon the payment of $33,500 to the property owners.

On October 18,1976, the property owners filed a petition in the trial court seeking to enforce the court’s order of July 27, 1976, asserting that they were entitled to the amount of compensation awarded by the jury inasmuch as the state had not taken an appeal from the judgment entered in their favor, and that the time for appeal had expired.

The state filed notice of appeal on October 19, 1976.

The property owners have filed a Motion to Dismiss the appeal, contending here, as they did below, that the appeal comes too late. It is their contention that the state’s motion for new trial was denied under Rule 59.1, ARCP, on August 12,1976, it having been pending for more than ninety days on that date. The rule provides:

“No post-trial motion filed pursuant to Rules 50, 52 or 59 shall remain pending in the trial court for more than 90 days, unless with the express consent of all the parties, which consent shall appear of record, or unless extended by the appellate court to which an appeal of the judgment would lie, and such time may be further extended for good cause shown. A failure by the trial court to dispose of any pending post-trial motion within the time permitted hereunder, or any extension thereof, shall constitute a denial of such motion as of the date of the expiration of the period.”

The property owners’ Motion to Dismiss is well taken and it is hereby granted. ARCP 59.1 expressly provides that a post-trial motion is denied after it has been pending ninety days in the trial court, unless extended by the express consent of the parties, which consent must appear of record, or unless extended by the appellate court to which an appeal of the judgment lies. The record in this case is devoid of any expression of consent of the parties to an extension, and no extension has been sought in this court.

The state argues that the ninety-day period referred to in ARCP 59.1 runs from the date set for hearing on a post-trial motion. Its position is that the court having set its motion for new trial for hearing on the 28th of June, it cannot be deemed denied under the rule until ninety days from the date set for hearing, which would be September 27, 1976. We cannot agree. The rule was designed to “ . . . remedy any inequities arising from failure of the trial court to dispose of post-trial motions for unduly long periods.” Committee Comments, ARCP 59.1. To hold that a motion for new trial is not “pending” under this rule until the date it is set for hearing would defeat the very purpose of the rule. A post-trial motion, like any other motion, is pending as of its filing and until acted upon by the court. In the instant case, the motion was pending as of May 13, 1976. It was denied by operation of ARCP 59.1 as of August 12, 1976. Therefore, the state had forty-two days from August 12, 1976, in which to file its notice of appeal. Rule 4(a)(1), ARAP.

Also, Justice Faulkner, writing for this court, said in Coosa Marble Co., Inc. v. Whetstone, 294 Ala. 408, 410, 318 So.2d 271, 273 (1975):

“Traditionally, the six months time limit for taking an appeal begins to run from the date of a court order denying a motion for new trial. W. E. Owens Lumber Co. v. Holmes, 277 Ala. 557, 173 So.2d 99 (1965). This tradition was broken when Rule 59.1 A.R.C.P. was adopted. Under Rule 59.1, a motion for new trial shall not remain pending in the trial court for more than 90 days, without the express consent of all the parties, or unless extended by the appellate court to which an appeal of the judgment lies. A failure of the trial court to dispose of the motion within the 90 days constitutes its denial on the expiration of that period. Here, there was neither express consent of all the parties to extend the time, nor was the time extended by this court. Consequently, the motion was denied by operation of Rule 59.1 on July 10. The appeal period began to run from that date. . ."

This case is no different and Coosa Marble is dispositive of the issue raised by Motion to Dismiss the appeal.

In the instant case, the notice of appeal was not filed until October 19, 1976. Because timely filing of the notice of appeal under Rule 2(a), ARAP, is jurisdictional and cannot be suspended under Rule 2(b), ARAP, the appellees' Motion to Dismiss is granted.

APPEAL DISMISSED.

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


author: FAULKNER, Justice.

text:
    S. S. KRESGE CO., d/b/a K-Mart v. Arlen RUBY.
    SC 2347.
    Supreme Court of Alabama.
    July 29, 1977.

      Danny D. Henderson of Williams, Spurrier, Rice & Grace, Huntsville, for appellant.
    C. Lynwood Smith, Jr., Huntsville, for appellee.
   FAULKNER, Justice.

K-Mart appeals from a jury verdict and judgment awarding Ruby $35,000 damages in a malicious prosecution suit. We affirm.

The issues presented for review are: (1) lack of probable cause, (2) defense of advice of counsel, (3) alleged prejudicial remarks of counsel in summation, (4) excessive damages, (5) no response from prospective juror during voir dire examination, (6) failure to give written requested charge concerning T. 14, § 334(1), Code of Alabama (Shopkeepers Act), and (7) failure to give written requested charge about malicious prosecution not being a favored action at law.

FACTS

On January 29, 1976, while repairing the electrical system of his newly acquired van, plaintiff Arlen Ruby realized that the repair required two new flasher units rather than one. Approximately a week prior, he had purchased only one such unit from the south K-Mart store. Placing in his jacket pocket the south K-Mart unit (the unit was still in the original display package but the cardboard had been folded after purchase), and the two old units from the van, Ruby walked to “Pat’s Union 76” service station. David O’Reilly assisted Ruby in trying to find a similar flasher unit, using the south K-Mart unit for comparison. However, the service station had only three-pronged units, and Ruby required a two-pronged unit. Ruby returned to his mother’s antique store, where he was then employed and where he had been working on his van. Before leaving to run an errand, and to purchase a new unit at the north K-Mart store, he went into his mother’s shop to tell her where he was going. (Ms. Spradley was present at the time and later testified, as did Mr. O’Reilly, to having seen Ruby with what appeared to be the south K-Mart unit in his possession before he went to the north K-Mart store.) Ruby then departed on his errands.

Sometime between 11:30 a. m. and noon, Ruby arrived at the north K-Mart store. He went to the automotive department where, according to his testimony, he took the three flasher units out of his pocket and compared them with the ones on the rack. He selected one exactly like that purchased from the south K-Mart store, took it to the cash register, paid for it, and went directly outside. Parker, the store’s security guard, a man with a badge but without any law enforcement powers, stopped him outside the front entrance.

K-Mart security guards routinely watch K-Mart customers, by observing them through mirrors, and by the use of binoculars. On this occasion, Parker was watching with binoculars through a two-way mirror in the automotive department when he noticed Ruby, a young man with long hair and wearing a denim jacket. The dress and manner of Ruby aroused Parker’s suspicion. He testified that looking through binoculars he saw Ruby take two flashers from the pegboard, put one in his left coat pocket, walk to the check-out counter, pay for one flasher, and leave.

Parker apprehended Ruby outside the store. Ruby described his apprehension as follows:

“Q. What did he [Mr. Parker] say?
“A. He asked me to please show him the contents of my pockets. I showed him, and he asked me to come back— well, he specified one pocket. He said, ‘I want to see what you have’, in whichever it was, the left or right hand pocket, and he asked me to come to the back of the store with him. And I told him at that point that he was making a mistake, that the flashers I had were mine when I came in the store. And he just kept shaking his head and asking me to please come with him, and I kept saying, ‘You are making a mistake.’
“Q. Did you tell him you had purchased the flasher, Plaintiff’s Exhibit 1, earlier at the south K-Mart store?
“MR. HENDERSON: Again we object to his leading the witness, he is testifying for Mr. Ruby.
“THE COURT: Sustained.
“Q. What did you state to Mr. Parker in regard to where you got the flasher that he asked you to remove?
“A. Nothing. At that point, he just asked me to go to the back. When we got back there, then I explained to him where I had purchased the flasher and why I had purchased it, and what I was doing in the store, and that what he thought he saw was not what he saw at all. And he disagreed with me, of course, and asked me to please empty the contents of my pockets. He took an inventory of what I had in my pockets, the amount of money I had, the items I had purchased, and had me sign a slip for the contents of my pockets and the amount of money, read me my rights, took information pertaining to my name, address, telephone number, where I was employed, this type of thing.”-

Ruby refused to sign an admission of guilt, but K-Mart alleges he signed a release, releasing K-Mart from any civil damages. (This instrument was admitted into evidence. Apparently it is the practice of K-Mart to get a release even though its agents are in the process of getting the accused shoplifter jailed.) When Ruby refused to sign an admission of guilt, Parker telephoned the city police. A police officer arrived and read Ruby his rights again. After reading Parker’s report, the officer instructed Ruby to replace the contents of his pockets and to report to the courthouse by 4:00 that afternoon to be arrested. When he left the store, he had the two old flashers and one new flasher in a package, but Parker retained the sales slip for the package Ruby had purchased, and the other new flasher unit. Later that afternoon Parker went to the courthouse to swear out a warrant for Ruby’s arrest. As instructed, Ruby went to the courthouse for arrest, was arrested, and was released on bond. He was tried for petty larceny and found not guilty. Subsequently he brought this action for malicious prosecution.

It is undisputed that Ruby did not have a receipt for the south K-Mart flasher. Furthermore, Ruby testified that he did not tell Parker of any witnesses who could verify that he had the flasher before entering the north K-Mart store. In fact, neither Parker nor Craddock, the City Attorney who prosecuted the petty larceny charge, were aware of any witnesses until the day the case was originally set for trial. Parker admitted that he made no attempt to verify Ruby’s explanation prior to causing the warrant to be issued.

Parker did not seek legal advice prior to swearing out the warrant. The first time he had contact with anyone in the City Attorney’s office about the matter was on the first day the petty larceny case was set for trial. After Craddock became aware of Ruby’s witnesses, he briefly discussed the matter with Parker. In this and at a later discussion, Parker deferred to the prosecutor’s judgment, never requesting that the charges be dropped. Craddock testified that the City Attorney’s office has a policy that if in their opinion probable cause exists, the case will be nol pressed only if the accused signs a release, releasing the store from all liability. He further stated that he controlled the prosecution entirely. There was evidence of a settlement offer by Ruby conditioned on K-Mart paying him X dollars, but Craddock refused the offer, and Ruby refused to sign any release.

In the malicious prosecution action, the jury found for Ruby and awarded him damages of $85,000, commenting that the damages were primarily punitive. Defendant’s motion for new trial was denied.

PROBABLE CAUSE

To be successful in an action for malicious prosecution the plaintiff must prove the following elements: “ . (1) a judicial proceeding initiated by the defendant, (2) without probable cause, (3) malice on the part of the defendant, (4) termination of the judicial proceedings favorable to the plaintiff, and (5) damages.” Birwood Paper Co. v. Damsky, 285 Ala. 127, 134, 229 So.2d 514, 521 (1969). Boothby Realty Co. v. Haygood, 269 Ala. 549, 114 So.2d 555 (1959); Crim v. Crim, 39 Ala.App. 413, 101 So.2d 845 (1958). This burden of proof clearly lies with the plaintiff. Jordan v. Alabama G.S.R.R. Co., 81 Ala. 220, 8 So. 191 (1886); Crim; Alabama Dry Dock & Shipbuilding Co. v. Bates, 33 Ala.App. 81, 30 So.2d 273 (1947).

The only elements being challenged on appeal, however, are lack of probable cause, malice, and damages.

“ ‘ “Probable cause” as the term is employed in actions for malicious prosecution, is such a state of facts in the mind of the prosecutor as would lead a man of ordinary caution and prudence to believe or entertain an honest and strong suspicion that the person arrested is guilty.’ ” Birwood Paper Co., 285 Ala. at p. 134, 229 So.2d at p. 521.

Consequently, the mere fact that the plaintiff was acquitted of the charge does not prove that there was no probable cause to believe him or her guilty at the time the warrant was issued. Piggly-Wiggly Alabama Co. v. Rickies, 212 Ala. 585, 103 So. 860 (1925); Gulsby v. Louisville & N.R.R. Co., 167 Ala. 122, 52 So. 392 (1910). The question in an action for malicious prosecution arising from a criminal charge is whether the defendant, at the time he or she instituted the prosecution, had probable cause to believe that the accused was guilty. Hanchey Brunson, 175 Ala. 236, 56 So. 971 (1911); Gulsby; Jordan.

Where evidence of the lack of probable cause is presented by plaintiff and the facts of the case are not in dispute, a question of law is presented to be decided by the court. Birwood Paper Co.; King v. Farrell, 55 Ala.App. 147, 314 So.2d 68 (1975). However, where the material facts are disputed, the issue of probable cause must go to the jury. Key v. Dozier, 252 Ala. 631, 42 So.2d 254 (1949); Gulsby; Alabama Dry Dock & Shipbuilding Co. In Key the court analyzed the factual dispute in detail:

“We do not think that the court could say as a matter of law that the proof in the present case showed probable cause, because the facts from which the inference was to be drawn, were in dispute. Tendencies of the evidence showed that although the defendant had been informed of the purchase of the property by the plaintiff, without the plaintiff’s knowledge or consent the defendant erected a building on the land, that when the plaintiff learned of the erection of the building, he immediately requested the defendant to move the building. Tendencies further showed that after a lengthy dispute, the plaintiff in the presence of the defendant entered the building in the daytime and removed the contents of the building therefrom and placed them, including the closed cash register, on the premises of the defendant across the road. Under the evidence it was at best from the defendant’s standpoint an issue of disputed fact as to whether there was reasonable cause to believe that burglary had been committed by the plaintiff.”

Likewise, in the present case, the facts were in dispute so as to require submission to the jury. There was clearly a dispute as to whether Ruby “ . stopped, . . . turned around, walked back where the flashers were, took another flasher off of the counter, put it on top of the first one he took off, turned around, started to walk back towards this back wall again,” folded it and put it in his coat pocket. This is not to say that the disputed fact is whether Ruby is in fact guilty or innocent of the charge, but rather the dispute focuses on whether Parker did in fact see such events as would lead him to reasonably believe that the plaintiff was guilty.

“Jury verdicts are presumed to be correct and no ground for granting a new trial will be more carefully scrutinized or more rigidly limited than that the verdict is contrary to the weight of the evidence. Alabama Great Southern R. Co. v. Evans, 288 Ala. 25, 256 So.2d 861; Sapp v. Frost, 266 Ala. 549, 97 So.2d 896; Cobb v. Malone, 92 Ala. 630, 9 So. 738. This presumption, as to the correctness of jury verdicts, is strengthened when the trial judge refuses to grant a motion for new trial. Shores v. Terry, 285 Ala. 417, 232 So.2d 657; Westbrook v. Gibbs, 285 Ala. 223, 231 So.2d 97. And on appeal, this court will not reverse a trial court’s refusal to grant a new trial on the ground of insufficiency of evidence unless, after allowing all reasonable presumptions of correctness, the preponderance of evidence against the verdict is so decided as to clearly convince the court that it is wrong. Britton v. Doehring, 286 Ala. 498, 242 So.2d 666.” Merchants Bank v. Cotton, 289 Ala. 606, 609, 269 So.2d 875, 878 (1972).

We cannot find that the preponderance of the evidence is so clearly against the verdict as to justify reversal.

Malice has been defined in the context of malicious prosecution as:

“ ‘Whatever is done willfully and purposely, whether the motive be to injure the accused, to gain some advantage to the prosecutor or through mere wantonness or carelessness, if at the same time wrong and unlawful within the knowledge of the actor, is in legal contemplation maliciously done.’ . . . Personal ill will, or desire for revenge, is not essential to the existence of malice as the law views it.” Gulsby, 167 Ala. at p. 128, 52 So. at p. 394.

Parisian Co. v. Williams, 203 Ala. 378, 83 So. 122 (1919). Malice may be inferred from the lack of probable cause. Parisian Co.; O’Neal v. McKinna, 116 Ala. 606, 22 So. 905 (1897); Jordan; Alabama Dry Dock & Shipbuilding Co.

DEFENSE OF ADVICE OF COUNSEL

K-Mart contends that Parker’s consultation with the City Attorney’s office is an absolute defense to this malicious prosecution action, in that the decision to continue prosecution after learning of the existence of Ruby’s witnesses was made in total reliance on Craddock’s advice. There is no evidence that K-Mart relied on advice of counsel in causing the arrest warrant to be issued. Ruby’s prosecution was not instituted on the advice of a reputable, practicing attorney given a full and fair statement by the prosecutor. Cf. Abingdon Mills v. Grogan, 167 Ala. 146, 52 So. 596 (1910); Birwood Paper Co.; Key.

REMARKS IN SUMMATION

K-Mart urges reversible error in a statement of opposing counsel during closing remarks to the jury. The record in this case does not disclose the challenged remark but only defense counsel’s objection thereto:

“MR. HENDERSON: We object to Big-K being connected to K-Mart. There has been no evidence of that, and I think he is talking about the financial status of K-Mart which is totally irrelevant, and further he is indicating that Big-K is a part of K-Mart, which it is not.
“THE COURT: Overrule your objection.”

Since the record is silent as to the substance of the comment, we may not speculate about the prejudicial qualities thereof. Freeman v. Hall, 286 Ala. 161, 238 So.2d 330 (1970); Deverell v. Horton, 285 Ala. 588, 234 So.2d 879 (1970). In the matter of an attorney’s argument to the jury, much must be left to the enlightened judgment of the trial court, with presumptions in favor of its rulings. Dendy v. Eagle Motor Lines, Inc., 292 Ala. 99, 289 So.2d 603 (1974).

EXCESSIVE DAMAGES

In an action such as this where punitive damages are allowed, we cannot find that the verdict is so excessive as to require reversal.

“This court has laid down the principle that a verdict will not be disturbed as excessive where the trial court has refused to disturb the amount unless so excessive as to indicate passion, prejudice, corruption or mistake. Montgomery City Lines v. Davis, 261 Ala. 491, 74 So.2d 923. And we have held that the correctness of a jury’s verdict is strengthened when the presiding judge refuses to grant a new trial.” South Highlands Infirmary v. Camp, 279 Ala. 1, 7, 180 So.2d 904, 909 (1965).

Moon v. Nolen, 294 Ala. 454, 318 So.2d 690 (1975); Louisville & N. R. R. Co. v. Dollar, 294 Ala. 276, 314 So.2d 867 (1975).

VOIR DIRE EXAMINATION

In the voir dire examination of the jury panel, defense counsel asked a question regarding whether any juror or member of his or her family had ever been arrested. Several members of the panel responded in the affirmative. However, counsel later learned that one juror in the case who failed to respond had previously been arrested for driving while intoxicated. The charge was reduced to reckless driving, and the juror paid a fine in 1968. Defendant asserted this as a ground for new trial, but the motion for new trial was overruled.

Whether a party is probably prejudiced by failure to respond is a matter primarily within the trial court’s discretion. Absent a clear showing of abuse of discretion, such ruling will not be reversed. Norris v. Presley, 292 Ala. 155, 290 So.2d 643 (1974). While the parties have a right to truthful answers to questions propounded on voir dire, the complaining party must also establish probable prejudice as a result of the failure to respond. Freeman.

“Although the factors upon which the trial court’s determination of prejudice is made must necessarily vary from case to case, some of the factors which other courts have considered pertinent are: temporal remoteness of the matter inquired about, the ambiguity of the question propounded, the prospective juror’s inadvertence or willfulness in falsifying or failing to answer, the failure of the juror to recollect, and the materiality of the matter inquired about.” Freeman, 286 Ala. at p. 167, 238 So.2d at p. 336.

The arrest of the juror occurred eight years prior to this trial. In light of this remoteness, we cannot say that the trial court abused its discretion in the matter.

REFUSAL OF WRITTEN REQUESTED CHARGE ON SHOPKEEPERS ACT

The trial court properly refused to give defendant’s written requested charge regarding T. 14, § 334(1), Code of Alabama 1940 (Shopkeepers Act). This act has been construed to afford no protection from liability for malicious prosecution but protects the merchant only for “false arrest, false imprisonment, or unlawful detention.” Super X Drugs of Alabama, Inc. v. Martz, 51 Ala.App. 370, 286 So.2d 47 (1973).

REFUSAL OF WRITTEN REQUESTED CHARGE REGARDING MALICIOUS PROSECUTION

The trial court also properly refused to charge the jury that malicious prosecution is not favored in the law. As stated in Fleetwood v. Pacific Mut. Life Ins. Co., 246 Ala. 571, 577, 21 So.2d 696, 701 (1945):

“ ‘It is a mistake to suppose that expressions in judicial opinions, properly there used, can be made to serve as clear, succinct statements of the law in special charges to the jury.’ Wear v. Wear, 200 Ala. 345, 76 So. Ill, 114. Furthermore, ‘A charge which merely states an abstract proposition of law without instructing the jury its effect upon the issues in the case on the trial may be refused without error.’ Francis v. Imperial Sanitary Laundry & Dry Cleaning Co., 241 Ala. 327, 2 So.2d 388, 391.”

The requested charge would have misled the jury.

AFFIRMED.

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


text:
    Hubert C. WALDREP v. Buena W. GOODWIN and Ike Goodwin.
    SC 2401.
    Supreme Court of Alabama.
    July 29, 1977.
    Myron K. Allenstein, Gadsden, for appellant.
    John S. Casey, Heflin, for appellees.
   SHORES, Justice.

The plaintiff-appellant in this case is the father of defendant-appellee Buena W. Goodwin. Ike Goodwin is the plaintiff’s son-in-law. The litigation involves an 81-acre farm located in Cleburne County.

On February 9, 1976, the plaintiff filed a complaint against his daughter and son-in-law in ejectment or alternatively seeking a sale for division of the land involved. In the first count, the plaintiff alleged that he claimed the right of possession of the land; in the second, he alleged that he and the defendants were joint owners of the land, that it could not be equitably divided and should be sold for division.

The defendants filed a motion to dismiss, which was overruled. The court set the matter down for a pretrial hearing; the defendants then filed a request for admissions to which the plaintiff responded. A pretrial conference was held and the plaintiff was allowed to file a statement of facts and memorandum of law. The defendants then filed a motion for summary judgment. The trial court granted this motion with the following order:

“JUDGMENT
“Plaintiff and defendants are residents of Georgia. Buena Goodwin is the daughter of Plaintiff. Plaintiff and his wife, now deceased, divorced in Georgia in January, 1948. In the judgment of divorce a property settlement contract was ratified by the Georgia Court in lieu of all alimony. In about December, 1954, almost seven years later, the parties remarried and were married at the time of the wife’s death in 1967. The wife died testate. In fact, two wills were presented to the Georgia Court, one in favor of the daughter (Defendant), and the plaintiff having him one also. The wills were litigated in Georgia; and the daughter’s will was held to be the true and valid will of the deceased mother and wife. About the only disputed fact that could be presented to the Court would be whether the plaintiff and his wife cohabitated after their remarriage, and if so, how long. But this Court does not deem that an important issue as we hold that remarriage does not abrogate the property settlement entered into in the divorce in January, 1948, in Georgia.
“The plaintiff has written himself a deed to this property in Alabama on a previous occasion, which was litigated by this Court, and which case plaintiff lost. Plaintiff has trespassed on this property, tried to live on it and use it as his farm or homeplace. This has been previously restrained by this Court, after hearing, and plaintiff was placed in the County Jail for Contempt of Court for violation of the injunction. Now plaintiff comes forth with the instant action, which is unique, but in opinion of the Court fails to state a claim under the Alabama Law; and the Court is of opinion it cannot be amended to state a claim valid under the law of this State.
“It is, therefore, with hope of finality, ORDERED and ADJUDGED by the Court that this action be and it hereby is dismissed with costs to the plaintiff.
“DONE and ORDERED this 19th day of January, 1977.
/s/ Robert M. Parker
Circuit Judge”

The plaintiff appealed and contends that the trial court erred in dismissing his complaint, because there is a genuine issue of material fact which requires a trial. We cannot agree.

.It is apparent from the.record before us that the parties to this litigation have litigated the title to the property involved here in a prior proceeding. In that litigation, Buena W. Goodwin was declared by the court to be the sole owner thereof in fee simple.

The plaintiff admits that his wife, defendant Buena Goodwin’s mother, was given title to the property by a divorce decree rendered in 1948. He, in addition, executed a deed conveying the property to his former wife. He and his former wife remarried in 1954. His wife died in 1967 and left a will devising the property to defendant Buena Goodwin. Thereafter, the plaintiff took possession of the property and Buena Goodwin instituted proceedings in Cleburne County to establish title to the property under her mother’s will. She was successful.

The plaintiff contends, however, that he should be allowed an opportunity to prove in this case that, by the remarriage, he and his wife intended to repudiate the prior divorce decree and deed and revest title in him.

We think the trial court correctly dismissed this action. The prior proceeding was specifically referred to in the defendants’ motion to dismiss and motion for summary judgment, which the trial court treated as a Rule 12(c), ARCP, motion. By agreement of counsel for both sides, the trial court record in that proceeding has been forwarded to this court pursuant to ARAP 10(f). It is before us by agreement of counsel entered into pursuant to ARAP Rule 47. The prior litigation established fee simple title in defendant, Buena Goodwin. In the instant case, the plaintiff alleges that he is entitled to immediate possession or, alternatively, asks a sale for division between joint owners. The prior litigation forecloses a retrial of title to this property. It is true that the theory under which the plaintiff claims title has not been litigated between these parties before, but the plaintiff had an opportunity to advance the current theory in the prior litigation. He is, therefore, foreclosed by principles of res judicata at this stage. Brown v. Olsson, 254 Ala. 695, 49 So.2d 564 (1950).

Had there been no prior litigation between these parties establishing title in Buena Goodwin, the trial court properly dismissed the complaint because the theory on which the plaintiff relies does not state a claim upon which relief may be granted. In Williams v. Williams, 261 Ala. 328, 74 So.2d 582 (1954), this court held that remarriage, after a divorce which fixed property rights, did not abrogate the divorce decree and the parties’ interest in property were as set forth in the divorce decree.

AFFIRMED.

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


text:
    Floyd HILL v. METAL RECLAMATION, INC., a corp., et al.
    SC 2497.
    Supreme Court of Alabama.
    July 29, 1977.
    Earl D. McNeal, Huntsville, for appellant.
    No brief for appellees.
   SHORES, Justice.

This is an appeal from an order granting a directed verdict in favor of the defendants-appellees, Ben Shelton and Metal Reclamation, Inc., a corporation.

The plaintiff was an employee of Metal Reclamation, Inc. Other than defendant Ben Shelton, who is the president and general manager of the corporation, there are no other employees of Metal Reclamation, Inc. Therefore, the Workmen’s Compensation Act, Title 26, §§ 253-325, Code, does not apply to this case.

‘Plaintiff sued the defendants claiming damages for injuries suffered by him during the course of his employment, which consisted of pouring molten metal into molds for mixture with other elements. The plaintiff testified that, during this process, hot zinc exploded back onto him, causing severe burns over his body.

The theory of plaintiff’s claim is that the defendants were negligent in failing to give him any instructions on how to safely perform the task assigned to him; in failing to warn him of the dangers attendant to such duties; and in failing to provide protective clothing and shields.

Under the common law, an employer is under a duty to supply the employee with a reasonably safe place to work. Woodward Iron Co. v. Craig, 256 Ala. 37, 53 So.2d 586 (1951); Hardy v. City of Dothan, 234 Ala. 664, 176 So. 449 (1937). He is held to that degree of care which reasonable and prudent men exercise in their own affairs, or the care and diligence which a man of ordinary care and prudence would exercise for his own protection, or the protection of his property. Williams v. Anniston Electric & Gas Co., 164 Ala. 84, 51 So. 585 (1909). Accordingly, it is the duty of the employer to exercise reasonable care to warn the employee of any risk of harm and to acquaint him with any dangerous features of the equipment, premises, or procedures with which he works. Gentry v. Swann Chemical Co., 234 Ala. 313, 174 So. 530 (1937). This includes the duty to take reasonable steps, when viewed in relation to the degree of the risk, to guard against injury to the employee from that risk. Johnson v. Montgomery Baptist Hospital, 295 Ala. 250, 326 So.2d 738 (1976).

In the instant case, the plaintiff testified that he was given no warning of the danger involved in pouring molten metal into molds, was not supplied with any protective clothing, and was not given any instructions about how to properly go about the work he was assigned to do. The accident occurred some two weeks after he was employed. He testified further that, after his injury, defendant Shelton was wearing protective shields while doing the same work being performed by the plaintiff when his injury occurred.

Mr. Shelton denied that the plaintiff was not given instructions about how to do the work. He also testified that face masks and protective clothing were offered to the plaintiff for his use while performing his duties. Thus, the evidence is in direct conflict on these issues.

This court has consistently held that, where there is conflicting evidence, it is the jury’s function to pass on that evidence and any inference to be drawn therefrom; and that it is improper to direct a verdict for either side where conflict in the evidence exists. Loeb and Co., Inc. v. Martin, 295 Ala. 262, 327 So.2d 711 (1976). Here, the jury could either believe the evidence offered by the plaintiff or that offered by the defendants. It could not believe both, for it is completely contradictory; but, it is the jury’s function to decide which to believe. Therefore, it was erroneous to direct a verdict in favor of the defendants.

REVERSED AND REMANDED.

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


author: PER CURIAM.

text:
    In re Dorothy T. STRICKLAND, surviving widow of Bowen Strickland v. NATIONAL GYPSUM COMPANY, a corporation. Ex parte Dorothy T. Strickland.
    Civ. 899.
    Court of Civil Appeals of Alabama.
    June 9, 1976.
    Rehearing Denied July 7, 1976.

      Edward R. Tibbetts, Mobile, for appellant.
    E. L. McCafferty, III, and James J. Duffy, Mobile, for appellee.
   PER CURIAM.

This is a workmen’s compensation case.

The appellee-employer has filed with this court a motion to dismiss appellant-employee’s appeal. The employer’s motion contends that appellate jurisdiction was not timely invoked.

The record before us reveals the following:

Petitioner filed a notice of appeal with the Supreme Court of Alabama some 36 days after judgment was entered in the trial court, and subsequently filed a motion to transfer the case to this court and treat the notice as a defective petition for writ of certiorari with leave to amend the petition. Appellee-employer then filed a motion to dismiss on the grounds that (1) the statutory time for invoking appellate jurisdiction was not met and (2) the notice of appeal cannot be treated as a defective petition which may be amended.

We find the employer’s first contention to be well taken and grant the motion to dismiss.

In view of our finding, it is not necessary to reach the employer’s second contention.

The statutory right of review of workmen’s compensation cases is “an appeal by certiorari.” Tit. 26, § 297(E), Code of Alabama 1940. The decision of the Supreme Court of Alabama has made it abundantly clear that review of workmen’s compensation cases is by certiorari, not appeal. Faddis v. Woodward Iron Co., 276 Ala. 283, 161 So.2d 486. It is equally as clear that the 30-day time period for statutory review of workmen’s compensation cases is jurisdictional. Bessemer Engineering & Construction Co. v. Smith, 216 Ala. 348, 113 So. 290.

The new appellate rules state that appeals, generally, shall be taken within 42 days (ARAP Rule 4(a)(1)); the rules are silent as to “appeals by certiorari.” Moreover, Tit. 26, § 297(E), Code of Alabama 1940, is not listed in either the amended or superseded statutes in- the appendix which accompanies the rules. Thus, the hiatus: Does the 30-day time period set by statute govern or does the 42-day time period for “appeal”?

In view of the long historical difference between review by certiorari and appeal as set forth by the supreme court in articulating procedure in workmen’s compensation cases and in the absence of any indication of any change in those decisions in the new appellate rules, we feel constrained to follow the decisional law of the supreme court in this matter. This is done in light of this court’s continued concern since the rules were adopted that just such a problem might occur; and in light of this court’s urgent request that this dilemma be corrected, whether by supreme court rule or by legislative amendment.

We would point out to counsel that the recently adopted appellate rules do allow for certiorari of appellate court opinions where the appellate court follows prevailing supreme court decisional law. See ARAP Rule 39(c)(5).

MOTION TO DISMISS GRANTED.

All Judges concur.


text:
    In re Dorothy T. STRICKLAND, etc. v. NATIONAL GYPSUM COMPANY, a corp. Ex parte Dorothy T. Strickland, etc.
    SC 1969.
    Supreme Court of Alabama.
    Nov. 24, 1976.
    Edward R. Tibbetts, Mobile, for petitioner.
    James J. Duffy, Jr., and E. L. McCafferty, III, Mobile, for respondent.
   PER CURIAM.

This court granted Strickland’s petition for writ of certiorari to review a decision of the Court of Civil Appeals which dismissed her appeal in a workmen’s compensation case.

Following are excerpts from the opinion of the Court of Civil Appeals:

“Petitioner filed a notice of appeal with the Supreme Court of Alabama some 36 days after judgment was entered in the trial court, and subsequently filed a motion to the transfer the case to this court and treat the notice as a defective petition for writ of certiorari with leave to amend the petition. Appellee-employer then filed a motion to dismiss on the grounds that (1) the statutory time for invoking appellate jurisdiction was not met and (2) the notice of appeal cannot be treated as a defective petition which may be amended.
“The new appellate rules state that appeals, generally, shall be taken within 42 days (ARAP Rule 4(a)(1); the rules are silent as to ‘appeals by certiorari.’ Moreover, Tit. 26, § 297(E), Code of Alabama 1940, is not listed in either the amended or superseded statutes in the appendix which accompanies the rules. Thus, the hiatus: Does the 30-day time period set by statute govern or does the 42-day time period for ‘appeal’?”

The Court of Civil Appeals concluded that the 30-day time period controlled and dismissed the appeal.

This court, on October 14, 1976, amended the first sentence in Rule 3 ARAP and adopted a court note to explain the change. The words, “or review by certiorari in a workmen’s compensation case,” were added in the first sentence of subsection (a)(1) to make clear the meaning of the rule.

New Rule 3 with the court note is as follows:

“Rule 3
“(a) Filing the Notice of Appeal. (1) In civil cases an appeal permitted by law as of right, or a review by certiorari in a workmen’s compensation case, shall be taken to an appellate court by filing a notice of appeal with the clerk of the trial court, within the time allowed by Rule 4.”
“COURT NOTE
“The words ‘or review by certiorari in a workmen’s compensation case’ have been added in the first sentence of subsection (a)(1) of Rule 3 and this subsection has been rewritten. The applicability of these rules to workmen’s compensation cases, as to the time for taking the appeal and the procedure to be followed in perfecting the appeal, is not to be construed as changing or in any way superseding Title 26, Section 297, of the Code of Alabama providing for review by certiorari. However, all matters of procedure, including the giving of notice of appeal, the time within which such notice is to be given, the filing of an appeal or superse-deas bond, the preparation of the record on appeal, and the raising of the questions presented for review applicable to workmen’s compensation cases, are governed by the Alabama Rules of Appellate Procedure; but the scope of appellate review shall remain as in cases on review by certiorari. See Alabama Digest, Workmen’s Compensation, Key Nos. 1910, 1911, 1912, and 1935. Nor does this Rule change the requirement that the trial court file a statement of the law and facts as mandated by Title 26, Section 304, of the Code of Alabama. See Leach Mfg. Co. v. Puckett, 284 Ala. 209, 224 So.2d 242.”

The action of this court on October 14, 1976, was to clarify the scope of Rule 3. Nevertheless, we consider old Rule 3 to have been broad enough to include review of workmen’s compensation cases. The time within which review of a lower court decision may be sought is procedural.

Thus, the 42-day provision of Rule 4 ARAP is controlling in this case.

Therefore, we reverse the decision of the Court of Civil Appeals and remand the cause to that court.

REVERSED AND REMANDED.

All the Justices concur.


author: HOLMES, Judge.

text:
    Dorothy T. STRICKLAND, surviving widow of Oscar Bowen Strickland v. NATIONAL GYPSUM COMPANY, a corporation.
    Civ. 899.
    Court of Civil Appeals of Alabama.
    June 8, 1977.

      Edward R. Tibbetts, Mobile, for appellant.
    James J. Duffy and E. L. McCafferty, Mobile, for appellee.
   HOLMES, Judge.

This is a workmen’s compensation case.

The appellant, employee’s widow, appeals from the trial court’s action in granting the appellee-employer's Rule 41(b), ARCP, motion.

The issue is whether the trial court erred in granting the Rule 41(b) motion. Put another way, did the trial court err in finding a lack of causal connection between the coronary occlusion (heart attack) suffered by the employee and his employment. We find no error and affirm.

At the outset, we note that Rule 41(b), ARCP, provides in pertinent part as follows:

“After the plaintiff, in an action tried by the court without a jury, has completed the presentation of his evidence, the defendant, without waiving his right to offer evidence in the event the motion is not granted, may move for a dismissal on the ground that upon the facts and the law the plaintiff has shown no right to relief. The court as trier of the facts may then determine them and render judgment against the plaintiff or may decline to render any judgment until the close of all the evidence. . . .”

The Committee Comments to Rule 41(b) reveal the following:

“In a jury case, Rule 50 applies and the court is limited to a question of law (thereby preserving jury trial right) as to the sufficiency of plaintiff’s prima facie case. In a non-jury case, the court, under Rule 41(b), as ultimate trier of fact, is free to weigh the evidence and the credibility of the witnesses. . . .”

We agree with the above comment. Thus, it is clear that since extensive testimony was presented by appellant, it was permissible for the trial court to weigh the evidence and the credibility of the witnesses.

In reviewing the trial court’s disposition of a Rule 41(b), ARCP, motion, this court need only determine whether the trial court’s action is supported by the evidence. Lang v. Cone, 542 F.2d 751 (8th Cir. 1976); Woods v. North American Rockwell Corporation, 480 F.2d 644 (10th Cir. 1973). As noted supra, we find it is.

The record reveals the following. The employee had been employed by the employer for over 25 years; he was 58 years old and a hard working man. In late December, the employee took a vacation. He returned to work on January 6,1974. However, prior to returning to work, he visited a physician, complaining of indigestion and heartburn. This visit to the physician resulted in no positive medical findings. A short time after returning to work, he again saw the doctor, complaining of a sore throat.

Subsequent to returning to work on January 6, the employee worked 18 consecutive days. Some overtime work was performed during this period. Members of the employee’s family testified that during this 18-day period the employee was tired and irritable.

On the morning of January 25, shortly after “clocking in” but before actually beginning physical work, the employee suffered a heart attack and died.

The physician, who had attended the employee on the occasions referred to above, testified that the cause of death was a coronary occlusion; that when he had seen the employee his heart and blood pressure had been “all right.” In response to the following question by the court, the doctor replied, “No.”

“Q Is there any way in your medical knowledge that you can testify that this man’s employment caused his heart attack?”

To put the issue before us in proper context, we deem it necessary to quote extensively from City of Tuscaloosa v. Howard, 55 Ala.App. 701, 705-06, 318 So.2d 729, 732 (1975), authored by Presiding Judge Wright:

“As pointed out by Larson in his treatise, Workmen’s Compensation Law, Vol. 1A, Sec. 38.83, the essence of the problem, particularly in heart attack cases is causation. How is it to be determined that the job caused the heart attack? It is certainly not enough to show that plaintiff . . . had a heart attack, .
“Larson points out that causation has two distinct parts: the legal and the medical. He says:
‘The law must define what kind of exertion satisfies the test of “arising out of the employment”; then the doctors must say whether the exertion which has been held legally sufficient to support compensation has in fact caused the heart attack.’
How to define the legal test of cause of injury arising from an act of employment? It surely cannot be limited to some unusual strain or exertion not ordinary to the job. Of course, in case of occurrence of an unusual exertion or happening, the determination of legal causation is generally made easier. It appears that the proper test was set out in Pow v. Southern Construction Co., supra, [235 Ala. 580, 180 So. 288] which we paraphrase as follows: If in the performance of the duties for which he is employed an employee is exposed to a danger or risk materially in excess of that to which people not so employed are exposed, and an injury occurs, such injury may legally be determined to have arisen from his employment and be an accident under the statute. Such can be the legal test of causation. However, the medical test of causation must also be met — that is, that such exposure, though operating with or upon other exposure common to all, was in fact the contributing cause of the injury. This test meets the employment versus nonemployment exertion test of Larson stated in 65 Mich.L.Rev. 441.” [Emphasis supplied.]

Applying the above stated test, in this instance, as we did in Howard, supra, we cannot say the trial court erred to reversal.

In so applying the legal test of causation, we find that the employee worked eighteen days without an intervening off day. We cannot say that the trial court erred in finding that such facts do not constitute an exposure to a danger or risk materially in excess of that to which people not so employed are exposed. We further find that the employee’s exertion, as noted above, does not meet the “medical test” as set out in Howard, supra. Even if it be conceded that the “exposure” was present, there is evidence to support the trial court’s conclusion that this exposure was not the contributing cause of the injury.

In view of the above, the case is due to be affirmed.

AFFIRMED.

BRADLEY, J., and PAUL, Retired C. J., concur.


author: BRADLEY, Judge.

text:
    George T. BLACKWELL, Jr. v. Evelyn Sue BLACKWELL.
    Civ. 1122.
    Court of Civil Appeals of Alabama.
    July 20, 1977.
    See also, Ala.Civ.App., 340 So.2d 448.
    Arthur J. Hanes, Jr., Birmingham, for appellant.
    Jack Martin Bains, Oneonta, Pat H. Boone, Birmingham, for appellee.
   BRADLEY, Judge.

This appeal is from a judgment denying a request to modify a previous divorce decree awarding periodic alimony to the wife.

In his petition to modify the husband contended that Title 34, Section 31, Code of Alabama 1940 (Recomp.1958) is unconstitutional and consequently he should be relieved of the alimony payments. After a hearing the trial court denied the husband’s request for modification of the alimony decree and he appeals.

In brief appellant-husband raises only one issue: the constitutionality of Title 34, Section 31, Code of Alabama 1940 (Recomp. 1958). He says he is aware of our recent case of Orr v. Orr, Civ. 1006 (Ala.Civ.App., 1977) wherein we decided that the alimony statutes, i. e. Title 34, Sections 31-33, Code of Alabama 1940 (Recomp. 1958), were not violative of the equal protection clause of the United States Constitution’s fourteenth amendment, but asks us to reconsider that decision in the light of the recent supreme court case of Peddy v. Montgomery, Ala., 345 So.2d 631 (1977). Appellant argues that the Peddy case makes sex a suspect classification and the alimony statute is based on sex, hence the statute denies equal protection and is unconstitutional.

The supreme court in Peddy — as we understand that decision — struck down a statute denying a wife the power of alienating or mortgaging her lands without the assent and concurrence of her husband. The court specifically declined to decide whether all gender-based classifications are inherently suspect; consequently, we do not consider Peddy to require that we alter the position we took in Orr, supra.

Based on the authority of Orr v. Orr, supra, we affirm the judgment of the trial court.

AFFIRMED.

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


text:
    Robert Vernon MOTHERSHED v. Leonarda Tecson MOTHERSHED.
    Civ. 1153.
    Court of Civil Appeals of Alabama.
    July 20, 1977.
    Benjamin E. Pool, Montgomery, for appellant.
    J. Richard Piel, Montgomery, for appel-lee.
   HOLMES, Judge.

This is a divorce case. The Circuit Court of Montgomery County awarded custody of the parties’ two year old male child to the mother.

The father appeals and contends through able counsel, that the trial court erred in failing to award custody to the father. We do not find such an abuse of discretion that requires reversal and affirm.

The record reveals that the father is a sergeant in the United States Air Force and that he plans to make the military his career. The mother is a Filipino and is not an American citizen. The parties lived together prior to their marriage. Apparently, the parties married after the birth of the child.

The evidence is in conflict as to the mother’s conduct toward the child. Members of the father’s family testified the mother did not properly care for the child. Other witnesses and the mother testified that she did properly care for the child. We do not deem it necessary to set out the testimony in detail.

The father in brief contends that the advantages to the child would be far greater with the father than with the mother. This contention is in large measure based on the fact of the mother’s foreign birth and the parties’ different financial status.

As this court has stated oftentimes, cases dealing with custody of children are among the hardest to deal with and courts are seldom satisfied in all respects with the results reached. However, the overwhelming consideration in cases of this nature is the welfare of the children. Blankenship v. Blankenship, 248 Ala. 489, 28 So.2d 409 (1946) [and numerous other cases; 8 Ala.Dig. Divorce @=>298(1)]. The trial court heard the evidence, observed the witnesses, and based its decision on these factors in arriving at its determination that the welfare of the child would best be served by the mother having primary custody of the child. There is a strong presumption favoring the trial court’s findings in cases of this class. 2A Ala.Dig. Appeal and Error @=>931(1).

We are further mindful, as our now Presiding Judge Wright stated in Turner v. Turner, 46 Ala.App. 350, 242 So.2d 397 (1970), there is no law in this state which gives either parent priority as to the right of custody. It is usually that a child or children, particularly a girl of tender years, is considered to need the peculiar care of the mother, but such consideration is subject to the predominant rule of the best interest and welfare of the child or children. Calhoun v. Calhoun, 278 Ala. 610, 179 So.2d 737 (1965); Hammett v. Hammett, 46 Ala.App. 206, 239 So.2d 778 (1970).

In view of the presumption favoring the trial court’s finding and the primary-consideration being the welfare of the child, this court cannot say the trial court committed reversible error in awarding the primary custody of the child to the appellee-mother.

This court may not substitute its judgment for that of the trial court with respect to the custody of children in a divorce case. Sutton v. Sutton, 55 Ala.App. 254, 314 So.2d 707 (1975). The case is due to be and is affirmed.

AFFIRMED.

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


author: WRIGHT, Presiding Judge.

text:
    CONAGRA, a corporation v. John T. WHITE, Jr.
    Civ. 1133.
    Court of Civil Appeals of Alabama.
    July 27, 1977.

      John S. Key of Eyster, Eyster & Key, Decatur, for appellant.
    W. H. Rogers, Moulton, for appellee.
   WRIGHT, Presiding Judge.

This is a workmen’s compensation case.

John T. White, Jr. was an employee of Conagra in its chicken hatchery at Moulton, Alabama. He was injured while acting within the scope of his employment. He suffered a fracture of the third phalanx of his left forefinger and apparently a fracture of the same bone immediately behind the knuckle in the hand. The hand and finger were immediately placed in a cast. After removal of the cast, a splint was worn for three or four weeks. White returned to his job the day following the injury and lost no time due to the injury except for visits to the doctor. He has now regained much use of the hand and finger and is able to perform his job as ably as before the injury.

There is some inability to completely close his fist due to a slight stiffness in the forefinger. He is not able to pick up or grip objects using the forefinger as well as before injury. He is right-handed. There was no medical testimony as to the injury, amount of disability or degree of permanent loss of use of either the hand or forefinger. On several occasions, White was directed to exhibit his hand to the court to show that the injured forefinger differed from the right one by about one-quarter inch. He was directed to show the court whether or not he could make a fist. Mr. White stated he could not grip a hammer, a posthole digger, or a sack of flour, or pull the trigger on a chain saw because of stiffness of the finger. He does not often drive his automobile with his left hand because of the stiffness of the forefinger.

Observers of Mr. White’s performance of his job since his injury note no difficulty in his using his left hand to grip and hold a high pressure water hose. Mr. White stated no difficulty in presently doing his work.

The court entered a finding that Mr. White’s ability to earn had been permanently impaired and that he sustained a seventy percent (70%) permanent partial disability to his left hand under Title 26, Sec. 279(C)(1), (3). An award of 170 weeks at $48.02 per week was given.

The issue on appeal is whether the evidence is sufficient to support the finding of a 70% permanent partial disability to the hand.

Recognizing, as we must, that the duty of this court in reviewing workmen’s compensation cases is to determine only if there is any legal evidence to support the findings of the trial court, we are unable to reverse in this case. Tiger Motor Co. v. Winslett, 278 Ala. 108, 176 So.2d 39 (1965).

It has been stated in prior cases that medical testimony is not necessary to a determination by the trial court of the permanency of an injury nor to the percentage of loss of use of the injured member. Stewart v. Busby, 51 Ala.App. 242, 284 So.2d 269 (1973). The trial court having heard the testimony of the claimant as to his ability to use his hand and finger, and having had demonstrated to it the appearance and extent of flexion, we cannot say that the evidence and its reasonable inferences fail to support the conclusion of the court. The legislature has directed that our review not reach the weight of the evidence before the trial court. Alabama Textile Products Corp. v. Grantham, 263 Ala. 179, 82 So.2d 204 (1955).

If medical evidence would have aided the trial court, in reaching a different conclusion the orthopedist, who treated claimant initially and saw him some 21 times thereafter, was presumably available to subpoena by defendant.

Though not presented as error on appeal and therefore not basis for reversal, it is evident that the court erred in its finding of a permanent impairment of earning capacity and in the calculation of compensation. We point out such error so that the court may note it for future consideration.

In loss of or loss of use of a scheduled member the loss of wages or earning ability is not directly concerned in determining compensation. The employee is entitled to be compensated according to the schedule regardless of how much he may-earn thereafter. Agricola Furnace Co. v. Smith, 239 Ala. 488, 195 So. 743 (1940); Title 26, Sec. 279(C)(1), (3); 2 Larson, Workmen’s Compensation Law, Sec. 58.11. If the disability awarded was based on loss of earning ability, it was determined erroneously.

The judgment also contains an improper award of compensation. Sec. 279(C)(3) provides the formula for the award in cases of loss of use of a scheduled member. Based upon the finding of a 70% loss of use of a hand, Mr. White would have been entitled to 70% of 170 weeks or 119 weeks at a rate of 66%% of $103 per week. It is evident that the court used the 170 weeks provided by the schedule for loss of a hand and then computed the amount per week as if subsection (C)(6) of Sec. 279 applied.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


author: TYSON, Presiding Judge.

text:
    Gary Wayne SMALL v. STATE.
    4 Div. 478.
    Court of Criminal Appeals of Alabama.
    Jan. 4, 1977.
    Rehearing Denied Feb. 1, 1977.

      Randy C. Brackin, Dothan, for appellant.
    William J. Baxley, Atty. Gen. and Jack M. Curtis, Asst. Atty. Gen., for the State, appellee.
   TYSON, Presiding Judge.

The appellant was indicted for possession of marihuana, after having been previously convicted of the same offense, also in Alabama. The jury found the appellant guilty as charged in the indictment, and the trial court set sentence at nine years imprisonment in the penitentiary.

About 6:15 p. m. on November 28, 1975, Officer Robert Sorrells of the Dothan Police Department (Narcotics Division) received a phone call from a confidential informant, who related to him that appellant was “selling marihuana at The Difference Lounge on 231 South.” The informant, who had supplied reliable information in previous cases, stated to Officer Sorrells that he personally saw this taking place, and that the appellant had a large quantity of marihuana in his automobile, which he identified as a gray Plymouth, bearing a 1976 Houston County license plate, number 10313. Without first obtaining a warrant, Officer Sorrells, along with Officer Wendell White, proceeded to The Difference Lounge, located the car which had been described to him, and after running an automobile registration check, learned that the car was owned by David Gibson, the half-brother of the appellant.

Officers Sorrells and White placed the appellant’s automobile under surveillance by parking their unmarked patrol car some fifty yards away in an adjacent parking lot. About twenty minutes later, the appellant exited The Difference Lounge, got in his car, and left, heading south on U. S. Highway 231. The two officers followed the appellant for about a quarter of a mile before pulling him over and informing him that they had information that he had “illicit drugs,” and that they were going to search the car. During their search of the entire automobile, they found four “lids” of marihuana inside a brown paper bag located “well up under the passenger seat,” and twenty-five “lids,” also contained in a brown bag, hidden under a piece of carpet inside the trunk. The appellant was placed under arrest, advised of his Miranda rights, and taken to the Dothan Police Station.

I

The appellant contends that he' was twice put in jeopardy for the same offense. However, the record indicates that the appellant withdrew his special pleas of autre-fois convict and former jeopardy as evidenced by his motion to quash the indictment:

“MOTION TO QUASH INDICTMENT
“Comes now the Defendant in the above styled cause and makes known unto the Court that he wishes to withdraw earlier pleas entered of Prior Acquittal and Double Jeopardy, and would move the Court to quash the indictment pending in said cause and would show unto the Court as follows:,
“1. That he was arrested on a warrant of arrest for the offense of possession of marijuana on the 28th day of November, 1975, that he requested a preliminary hearing in the case.
“2. That Judge Billy J. Sheffield heard the evidence presented by the State of Alabama and as Magistrate failed to find sufficient probable cause to believe that a felony had been committed, but, acting in his capacity as County Judge, with jurisdiction over misdemeanor cases, found the Defendant guilty of possession of marijuana for his own personal use and sentenced him to a fine of $500.00 and imposed a twelve-month suspended sentence.
“3. That from the conviction of the misdemeanor, the Defendant gave notice of appeal to the Circuit Court of Houston County, Alabama, to try the misdemean- or case de novo before a jury.
“4. That said case was set for trial, but the case was continued for the State of Alabama because one of their witnesses was out of the state, and said case was again set for trial as a misdemeanor appeal on the Circuit Court Jury Docket, but there on the day that said case was to be tried, the District Attorney of the 20th Judicial Circuit of Alabama, Thomas Sor-rell, made a motion to the Court to be allowed to nol pros the misdemeanor conviction and take the case to the Grand Jury.
“5. That said action was opposed by the Defendant, but the District Attorney’s motion was granted, and the indictment in this cause was returned by the May, 1976, term of said Grand Jury.
“6. That said Houston County Court has authority and valid jurisdiction to convict in cases coming before it and that is said Court has jurisdiction and authority to render a valid misdemeanor conviction that it acts as a conviction of a lesser and included offense and a bar to any further prosecution for the greater offense.
“7. That said conviction of a lesser included offense acts as an acquittal of the greater offense and upon the motion to nol pros the case by the District Attorney, that terminated all prosecution proceedings against the Defendant in the case.
“WHEREFORE, in consideration of the premises, the Defendant moves the Court to quash the indictment pending in said cause.”

Thus, there was no proper plea or proof of double jeopardy before the court. See Goode v. State, Ala.Cr.App., 337 So.2d 1364; Evans v. State, Ala.Cr.App., 341 So.2d 749, 1976, Title 15, Sections 278-288, Code of Alabama 1940.

Under the circumstances presented, there was no infringement upon the appellant’s Fifth Amendment right to protection against twice being in jeopardy. Anthony v. City of Birmingham, 240 Ala. 167,198 So. 449; Adair v. State, 30 Ala.App. 58, 200 So. 791. See also Ludwig v. Massachusetts, 427 U.S. 618, 96 S.Ct. 2781, 49 L.Ed.2d 732; Colten v. Kentucky, 407 U.S. 104, 92 S.Ct. 1953, 32 L.Ed.2d 584.

II

During the course of the district attorney’s examination of Officer Sorrells, he requested that the witness relate to the jury the entire content of the information he had received from his confidential informant concerning the activity of the appellant at The Difference Lounge on the afternoon in question. The testimony was as follows [R. pp. 5-6]:

“Q. Okay. And what information did he give you?
“A. On this particular day?
“Q. Yes.
“MR. BRACKIN: I object to that information.
“THE COURT: Just a minute, Gentlemen. Let’s get straight here. Approach the bench.
“(Thereupon, an off the record discussion was held between the attorneys of record and The Court, and following said discussion, the following proceedings were had, to-wit:)
“THE COURT: Overruled.
“MR. BRACKIN: Exception.
“THE WITNESS: The information received was that Gary Wayne Small was selling marijuana at The Difference Lounge on 231 South. And, he had a large quantity in his automobile. The automobile was described, the license plate number given to us.”

The appellant contends that the trial court erred in allowing Officer Sorrells to state in the presence of the jury the detail of his conversation with the informant, especially the informant’s allegation that he was “selling marihuana,” a crime for which he is not here charged. Appellant insists that whatever information the informant gave Officer Sorrells was inadmissible hearsay, and to allow the jury to hear the substance of the informant’s statements was prejudicial error since he was denied the opportunity to confront and cross-examine the informant in order to scrutinize and test the veracity of his statements.

Allegations made by an unidentified informant are, by their nature, nothing more than rank hearsay. Although the hearsay allegations of a reliable informant may be considered in a motion to suppress, conducted outside the jury’s presence, in determining “probable cause” for an arrest or search, they have no place in the trial itself. Reeder v. State, 294 Ala. 260, 314 So.2d 853; Draper v. U. S., 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327. Professor McCormick explains why the details of information received from an unidentified informant should be excluded at trial [McCormick on Evidence, 2nd Ed., Chapter 24, Section 248]:

“In criminal cases, the arresting or investigating officer will often explain his going to the scene of the crime or his interview with the defendant, or a search or seizure, by stating that he did so ‘upon information received’ and this of course will not be objectionable as hearsay, but if he becomes more specific by repeating definite complaints of a particular crime by the accused, this is so likely to be misused by the jury as evidence of the fact asserted that it should be excluded as hearsay.”

Ill

We pretermit a discussion of other instances of error raised by appellant because they are not likely to occur again on retrial.

For the error noted, the appellant’s cause is due to be and is hereby

REVERSED AND REMANDED.

All the Judges concur.

      . The appellant also by his motion to exclude at the close of the State’s evidence asserted this same error.


author: BEATTY, Justice.

text:
    In re Gary Wayne SMALL v. STATE of Alabama. Ex parte State of Alabama ex rel. Attorney General.
    SC 2373.
    Supreme Court of Alabama.
    July 29, 1977.

      William J. Baxley, Atty. Gen., and Jack M. Curtis, Asst. Atty. Gen., for petitioner the State.
    Randy C. Brackin, Dothan, for respondent.
   BEATTY, Justice.

The petition for a writ of certiorari was filed by the State of Alabama to have this Court review and reverse the decision of the Court of Criminal Appeals in 348 So.2d 504 (1977), wherein that court reversed and remanded the judgment of conviction of Gary Wayne Small for possession of marijuana.

The reversal of that conviction was based upon the conclusion of that unanimous court that the testimony of a police officer, pertaining to information furnished him through a telephone conversation with an informant, was inadmissible hearsay which could not be considered as evidence in the trial itself. We granted the writ to determine whether the Court of Criminal Appeals had followed the rules of Granberry v. Gilbert, 276 Ala. 486, 163 So.2d 641 (1964) and Langford v. State, 54 Ala.App. 659, 312 So.2d 65 (1975) which held that the general objection is insufficient to place the trial court in error when it overrules that objection.

The opinion of the Court of Criminal Appeals treated the allegations of the informant, as recited by the police officer, as rank hearsay, admissible in determining probable cause but inadmissible in the trial. But hearsay evidence is not inherently inadmissible unless it is patently inadmissible for any purpose, Loyd v. State, 279 Ala. 447, 186 So.2d 731 (1966); U. S. v. Costello, 221 F.2d 668 (2nd Cir. 1955); Granberry v. Gilbert, supra.

We disagree with the Court of Criminal Appeals with respect to its comments on the admissibility of hearsay, and thus with the reasoning employed by that court to find error in admitting the telephone conversation. However, this record reveals that there was a specific objection, on the ground of hearsay, to the question which sought to reveal the content of the telephone conversation:

By Mr. Jackson;
Q Did you receive a telephone call on that day around 6:15?
A Yes, sir. I did.
Q What was the substance of that conversation?
MR. BRACKIN: I object to the substance as hearsay.

This objection was followed by a series of predicating questions relating to the reliability of the informer, followed by:

Q Okay. And what information did he give you?
A On this particular day?
Q Yes.
MR. BRACKIN: I object to that information.
THE COURT: Just a minute, Gentlemen. Let’s get straight here. Approach the bench.
(Thereupon, an off the record discussion was held between the attorneys of record and The Court, and following said discussion, the following proceedings were had, to-wit:
THE COURT: Overruled.
MR. BRACKIN: Exception.
THE WITNESS: The information received was that Gary Wayne Small was selling marijuana at The Difference Lounge on 231 South. And, he had a large quantity in his automobile. The automobile was described, the license plate number given to us.

This exchange clearly shows that a specific objection on the ground of hearsay was timely made to the question which called for the content of the conversation. Thus, the trial court was made acquainted with the ground of the objection, and it was not necessary to repeat that specific ground each time an additional question was propounded to elicit the same testimony. National Casualty Co. v. Dunn, 209 Ala. 484, 96 So. 576 (1923).

It should be noted as well that the record does not reveal that the trial court made any ruling immediately after the initial specific objection, nor did counsel for the defendant request a ruling then or object to the trial court’s refusal to rule in order to preserve an error for review. Ordinarily, his course of action would have been to follow one or both of these alternatives. Mitchell v. Bland, 12 Ala.App. 453, 67 So. 800 (1915). Under the facts, however, we find that the specific objection was sufficiently coincident with the trial court’s ruling admitting the evidence to have preserved the error for review.

AFFIRMED.

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