author: HOLMES, Judge.

text:
    James C. JOHNSON a/k/a Jay Johnson v. Robert L. BOGGAN d/b/a Commercial Mortgage Investment Company.
    Civ. 611, 611-X.
    Court of Civil Appeals of Alabama.
    Dec. 3, 1975.
    Rehearing Denied Dec. 31, 1975.

      J. Richard Piel, Montgomery, for appellant.
    Euel A. Screws, Jr., and Howard C. Oliver, Montgomery, for appellee and cross-appellant.
   HOLMES, Judge.

This is an appeal from the Circuit Court of Montgomery County. A judgment for $1,750 was entered by the learned trial judge sitting without a jury in favor of plaintiff-appellee and against defendant-appellant. From this judgment the defendant appeals. The plaintiff cross-appeals and assigns as error the insufficiency of the evidence to support the amount of the judgment.

The action is one for breach of contract and declaratory judgment. The disposi-tive issues on the direct appeal by the appellant are the construction to be accorded certain terms of the contract in question and whether defendant-appellant’s misunderstanding as to those terms will suffice to render the contract unenforceable.

The pertinent facts as revealed by the record are as follows:

Defendant-appellant was interested in constructing an office building in downtown Montgomery, Alabama, his purpose being to lease said building to the State of Alabama.

Plaintiff-appellee is a mortgage broker. He became aware that defendant needed to secure financing for the above mentioned project, and sent to defendant the following letter dated June 26, 1974:

“Mr. Jay Johnson
464 South Court
Montgomery, Ala.
“Re: Office Building Leased to State 11,680 sq. ft.
“Dear Mr. Johnson,
“You hereby authorize me as your agent to obtain permanent financing for you on the above referenced property. The loan is to be in the amount of $300,000 at 93/4% interest for 25 years, with monthly payments of $2,675. The loan will be made to you personally. The lender must approve the closing attorney.
“The loan commitment will be subject to the building being leased to the State of Alabama for 5 years at $5.75 per foot, not including utilities.
“The property in the mortgage will be that covered in the appraisal made by Ed Auerbach, May 10, 1974.
“The commitment will be subject to an MAI appraisal of the land and building indicating that the loan does not exceed a 75% ratio.
“The lender will reserve a first right of refusal, to provide you with additional financing on this property.
' “The loan commitment will be good for a period of one year. Closing to take place at your request, but no sooner than Jan. 1, 1975.
“It is understood that you are to pay the usual closing costs, such as survey, abstract, title policy, attorney fees, recording fees, etc.
“Mr. Jay Johnson_page 2
an acceptable s/j/
“If a commitment is issued in accordance with the above terms, you agree to accept said commitment within 10 days, and put up a 2% refundable deposit with the lender.
“My fee for securing the commitment will be 1% of the commitment amount. Said fee to be paid upon acceptance of the commitment.
an acceptable s/j/
“If for some reason a commitment is issued and you do not accept it, you agree to reimburse me $500 for my expenses.
an acceptable s/j/
“If a commitment is not issued within 30 days from date of acceptance of this letter, then this agreement will be null and void.
“Please indicate your acceptance of the above terms by signing below.
“Sincerely,
“/s/ Bob Boggan
“Robert L.-Boggan
“President
“RLB/lbb”

Defendant’s attorney subsequently contacted plaintiff by telephone and the agreement was finalized. At that time, the word “acceptable” was added in paragraphs 1, 3 and 4 of page 2 of the above letter. Plaintiff also testified that the entire paragraph 3 of page 2 was added during that negotiation.

Plaintiff then sought to procure an acceptable loan for defendant, and did in fact obtain a loan commitment from Pilot Life Insurance Co. of Greensboro, North Carolina (hereinafter referred to as “Pilot”). After receiving the loan commitment, defendant sent to Pilot the following letter of July 18, 1974:

“Pilot Life Insurance Company
Post Office Box 20727
Greensboro, North Carolina 27420
“Attention: Mr. V. E. Knox
Vice President
“Dear Mr. Knox:
“I hereby accept the attached loan commitment dated July 10, 1974, subject to the following ammendment [sic]:
“Upon acceptance of the commitment, I enclose herewith a 1% ($3,000.00) good faith deposit. If for some reason the five (5) year lease with the State of Alabama cannot be obtained within sixty (60) days from July 22, 1974; then construction will not take place, and the commitment will be cancelled and the 1% ($3,000.00) deposit refunded to me.
“As soon as the required lease with the State is obtained (within sixty days), I will forward the balance of the good faith deposit.
“I regret having to add this condition to your commitment, but trust that you will understand, and that it will be acceptable to you.
“Sincerely yours,
“/s/ James C. Johnson
“James C. Johnson
“JJ/tik”

Pilot responded by letter dated July 24, 1974, as follows:

“CC
“Mr. Robert Boggan
Commercial Mortgage Investment Co.
609 South Hull Street
Montgomery, Alabama 36104
“Dear Mr. Johnson:
“James C. Johnson and
wife, Lydia R. Johnson
Proposed Office Building
302 and 316 Cramer Street
and 1021 South Hull Street
Montgomery, Alabama
“Please consider this letter as an amendment to our commitment letter dated July 10, 1974 as we agree that if for some reason the five year lease with the State of Alabama cannot be obtained within sixty (60) days from July 22, 1974; then the construction will not take place and the commitment can be cancelled and the $9,000 deposit refunded to you.
“If this amendment meets with your approval, please return the executed copy of this letter to us by August 2, 1974 otherwise it will become null and void without further notice.
“You will notice that we require the full deposit as requested in our commitment letter dated July 10, 1974, and the $3,000 that you offered with your letter of July 18, 1974 was not sufficient.
“Sincerely Yours,
“/s/ V. E. Knox
“V. E. Knox
“Second Vice President
“Accepted by:
”/s/ James C. Johnson
7/30/74
(Date)
Lydia R. Johnson
(Date)
“VEK:mte”

Defendant made his final acceptance of the Pilot loan commitment by complying with the terms of the July 24 letter.

It later developed that the lease with the State of Alabama could not be obtained. The loan commitment with Pilot was thus cancelled and defendant’s deposit was refunded. Defendant refused to pay plaintiff the one percent commission which plaintiff contends is owed him by the terms of the June 26 letter, and this litigation ensued.

It is the task of this court to decide if defendant’s promise to pay plaintiff a commission is subject to the condition that a lease with the State of Alabama be obtained.

We initially note that the brokerage contract between plaintiff and defendant and the loan commitment between plaintiff and Pilot are two separate and distinct agreements.

The letter of June 26, as amended, embodies the entire contract between plaintiff and defendant. To this court, there is no ambiguity in its provisions. The contract provides that the commitment is to be subject to the condition that the lease with the State of Alabama be obtained. However, defendant’s obligation to pay the commission is not made so contingent. Defendant’s duty to pay is to arise when he accepts the commitment, with its attached condition. The condition is solely referable to the loan commitment between defendant and Pilot, and has no application to the instant contract between plaintiff and defendant.

Put another way, defendant was to pay the commission upon acceptance of the commitment. Defendant himself required that the condition be attached to the commitment in order for him to in fact accept it. It is therefore difficult to ascertain how defendant can contend that the condition has affected his duty to pay plaintiff-broker. Simply stated, the broker’s contractual duty was fulfilled when the money to be loaned was found and such was accepted by the borrower.

As appellee apprises us in brief, the instant contractual arrangement is expressive of the general law concerning brokers of various types. 12 Am.Jur.2d Brokers § 194.

We further note that the series of writings between plaintiff, defendant, and Pilot unequivocally indicates that it was the commitment or actual transferal of the money rather than defendant’s acceptance thereof which was made conditional.

Counsel for defendant contends that no enforceable contract exists, since defendant erroneously believed that his duty to pay the commission was subject to the above mentioned condition. However, in the absence of mistake, fraud, or ambiguity, the existence vel non of a contract is determined by reference to the reasonable meaning of the parties’ external and objective manifestations of mutual assent, rather than by their uncommunicated beliefs. Williston on Contracts, 3rd ed., §§ 22, 1536; 17 C.J.S. Contracts § 32; 17 Am.Jur.2d Contracts §§ 18, 19, 21; 9 Ala. Dig. Evidence, ®=’397(1), 461(1), and cases cited thereunder. Any mistake here was solely due to defendant’s misunderstanding of the contractual provisions, and as such is an insufficient basis upon which to predicate relief from his obligations under that contract. 17 Am.Jur.2d Contracts §§ 21, 146, 148; Ex parte Perusini Const. Co., 242 Ala. 632, 7 So.2d 576; Board of Water and Sewer Com'rs of Mobile v. Spriggs, 274 Ala. 155, 146 So.2d 872.

Defendant finally argues that the loan commitment was • never accepted because plaintiff’s wife appeared to be required to sign the document and did not do so. However, this issue cannot be considered as it is raised for the first time on this appeal. 2 Ala.Dig. Appeal & Error, ®=>169, and cases cited thereunder. Furthermore, testimony was adduced at trial to the effect that Pilot considered defendant’s signature alone to be sufficient.

We accordingly hold that defendant is bound 'by the terms of the written contract, in that when he accepted the loan commitment he became obligated to pay plaintiff a commission of one percent thereof.

As noted earlier, the plaintiff cross-assigns error in that there is insufficient evidence to support the trial court’s entry of judgment in the amount of $1,750. We agree. The only evidence before the court pertaining to the amount of defendant’s indebtedness to plaintiff was the written contract, which fixed that indebtedness at one percent of the loan commitment, or $3,000.

We therefore find the defendant-appellant’s assignments of error are without merit. The plaintiff-cross-appellant’s assignment of error is well founded.

We therefore reverse and remand for entry of judgment not inconsistent with this opinion.

Reversed and remanded with instructions.

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


source: Caselaw Access Project

license: Public Domain

text:
    MOBILE PAINT MANUFACTURING COMPANY v. David A. CROWLEY.
    Civ. 668.
    Court of Civil Appeals of Alabama.
    Dec. 31, 1975.

      Michael D. Knight, Mobile, for petitioner.
    Cunningham, Bounds & Byrd, Mobile, for respondent.
   HOLMES, Judge.

This is a workmen’s compensation case from the Circuit Court of Mobile County, Alabama.

The trial court in its decree found that the plaintiff-appellee, David A. Crowley, sustained a 50% permanent partial disability and a corresponding loss of earning capacity. The disability resulted from an accident which occurred in the course of his employment with Mobile Paint Manufacturing Company. The trial court ordered that Crowley recover of the employer $55 per week for 271 weeks as compensation. The employer appeals from this decree.

The issues before us are whether certain erroneous findings of fact - in the trial court’s decree require the remand of this cause and whether there is any evidence to sustain the trial court’s determination that Crowley suffered a 50% permanent partial disability and corresponding loss of earning capacity.

The tendencies of the evidence as revealed by the record are as follows:

Plaintiff-appellee David A. Crowley graduated from Tulane University in June of 1969 with a B. S. degree in chemistry and began work in July as an industrial chemist with the employer, defendant-appellant Mobile Paint Manufacturing Company. His duties required him to load a paint mill approximately once a week. The loading process entails lifting the mill, which weighs approximately 175 pounds.

On or about May 15, 1970, Crowley experienced sudden pain in his lower back while he was lifting the mill. He continued to experience persistent, severe back pain throughout the next two months, and in July if 1970 he sought the assistance of Dr. Lloyd Russell, an orthopedic surgeon. Dr. Russell diagnosed Crowley as suffering from a spondylolysis at the lowest lumbar vertebra, meaning essentially that there was a congenital defect of that vertebra, and from ruptured discs. The disc rupture had occurred when Crowley lifted the paint mill. He prescribed that Crowley wear a supportive back brace and instructed him in techniques designed to protect and strengthen his back.

These measures failed to improve Crowley’s condition. With the exception of loading paint mills, he was able to perform his job duties as before, but he was occasioned considerable pain by the fact that these duties required him to stand for much of his work day. Dr. Russell finally advised Crowley that the only treatment which could provide him with relief would be a spinal fusion and disc excision. In April of 1971, he underwent surgery for those purposes.

Crowley was hospitalized for thirty-one days recuperating from the operation and underwent an extended period of convalescence during which his activities were extremely restricted. He did not return to his job after the surgery, and in August of 1971, he entered the University of Alabama Law School. When the employer failed to pay Crowley the workmen’s compensation benefits to which he considered himself entitled, this, litigation ensued.

The trial court in its decree made detailed findings of fact as required by Tit. 26, § 304, Code of Ala. 1940. Specifically found were that Crowley suffered a fractured vertebra and that he had not been gainfully employed since the accident which caused his injury.

As noted above, the evidence tends to show that Crowley’s injury was a ruptured disc rather than a fractured vertebra. Furthermore, the evidence shows without dispute that Crowley worked between the times of the accident and his subsequent surgery, terminating his employment only after the operation.

The employer, through able counsel who has favored this court with an excellent brief, contends that these erroneous findings of fact in the trial court’s decree are fatal to Crowley on this appeal. For the reasons stated below, we do not agree.

While we are not unmindful of the cases holding that findings unsupported by any legal evidence cannot be made the basis for an award of compensation, this principle cannot be properly applied to the instant case. From the evidence, the compensation award here is not in fact predicated on the erroneous findings.

The basis for the award, in this instance, was that Crowley sustained an injury to his back resulting in a 50% permanent partial disability and loss of earning capacity. The loss of earning capacity is supported by the evidence, as discussed infra, whether the back injury was caused by a fractured vertebra or by a ruptured disc. It is therefore, in this instance, inconsequential specifically which type of trauma in fact occurred. The finding of a fractured vertebra, as opposed to a ruptured disc, not being essential to the conclusion of a 50% loss of earning capacity, the employer was not harmed by the trial court’s error. See Rule 45, Alabama Rules of Civil Procedure; also, Misco, Inc. v. Driver, 50 Ala.App. 256, 278 So.2d 374. Additionally, Unexcelled Mfg. Corp. v. Ragland, 52 Ala.App. 57, 289 So.2d 626, cited to us by counsel for plaintiff-appellee, is authority for this position.

The mistaken finding that Crowley had not worked since the accident was also not a material basis for the award. We cannot perceive how the ultimate conclusion regarding extent of lost earning capacity would differ if the trial court had found what actually transpired, i. e., that Crowley had not worked since the operation. The conclusion being unaffected by the trial court’s error, the employer is not harmed. Unexcelled Mfg. Corp. v. Ragland, supra.

Finally, the employer argues that there is no evidence to support the trial court’s determination that Crowley sustained a 50% permanent partial disability and loss of earning capacity. We disagree.

We are required to review this matter with the- well established rule in mind that on certiorari to review judgments in workmen’s compensation cases, this court does not look to the weight of the evidence as to any fact found by the trial court, but looks to see if there is any evidence to support the facts which the trial court found. Tiger Motor Co. v. Winslett, 278 Ala. 108, 176 So.2d 39; Dale Motels, Inc. v. Crittenden, 50 Ala.App. 251, 278 So.2d 370.

So viewing the instant appeal, we find the following testimony to support the trial court’s conclusion that the employee suffered a 50% permanent partial disability and corresponding loss of earning capacity. The testimony of the attending physician was that the employee had undergone a spinal fusion, and that the physical disability was 25% of the spine which resulted in a 20% physical disability of the body as a whole. There was testimony that the only work the employee was trained for was that of an industrial chemist; that an industrial chemist is required to lift heavy items, and must stand on his feet for long periods of time. Further testimony was that the employee cannot stand for a long period of time; that he experiences pain when sitting for any period of time, and that the only way the pain can be alleviated is by lying on his side. On the date of the trial in this case the employee was still experiencing low back pain and fatigued easily. There was also testimony that the employee cannot do any physically strenuous work and that the employee has not worked since the operation.

With the above evidence before the trial court, this court cannot say that the lower court erred to reversal in finding the employee to have a 50% permanent partial disability and corresponding loss of earning capacity.

All assignments of error having been considered, the case is due to be and is affirmed.

Affirmed.

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


author: WRIGHT, Presiding Judge.

text:
    Gerald Lawrence MULLINAX v. Carol Anthony MULLINAX.
    Civ. 612.
    Court of Civil Appeals of Alabama.
    Jan. 7, 1976.

      John T. Kirk, Montgomery, for appellant.
    Kenneth L. Funderburk, Phenix City, for appellee.
   WRIGHT, Presiding Judge.

This is an appeal by the husband from a decree granting a divorce, effecting division of property, awarding lump sum alimony in gross, child support and attorney fees. After considering the evidence in light of the presumption of correctness of a decree rendered after oral hearing, we affirm. Hallman v. Hallman, 51 Ala.App. 460, 286 So.2d 863.

The husband primarily charges error in the division of property. The trial court gave custody of an 18-month-old daughter to the wife. It also gave to the wife title to the home and its furnishings. The award of the family home to accompany the granting of custody of minor children is a common thing in divorce cases. The parties owned two pieces of real property, the home and a rental residence. There was no evidence of value of either. The court gave the rental property to the husband. Each property was encumbered by a mortgage. The burden of payments of the mortgage on each property fell upon the respective grantee. There is no evidence that such property division was unfair or unjust to the husband. His contention that the properties were purchased with his sole funds is not a cause for reversal. It is seldom that marital property is purchased with funds specifically earned by the wife. The source from which property comes may be considered along with other circumstances in effecting an equitable division but it is not controlling upon the court. Helms v. Helms, 54 Ala.App. 551, 310 So.2d 475.

The division of property, granting custody and award of alimony are matters of discretion for the trial court. Each case is decided upon its own facts without fixed rules, subject only to review upon an absence of support by the evidence, arbitrariness, and palpable abuse of discretion. Helms v. Helms, Supra; Self v. Self, 49 Ala.App. 665, 275 So.2d 345.

The husband complains that the awarding of the sum of $174.00 monthly as child support was an abuse of discretion. We do not agree. The evidence discloses that the father is employed as manager of a manufacturing plant earning between eighteen thousand and twenty thousand dollars per year in salary and bonus. He has an interest in another enterprise. In view of his earnings, the support award is most reasonable. The responsibility of support for two children by a prior marriage in the amount of $200.00 per month does not render the award in the present case unreasonable.

We find no reason for discussion of the testimony relating to the cause of the breakdown of the marriage. There is no charge that the divorce was erroneously granted.

Affirmed.

BRADLEY and HOLMES, JJ., concur.


author: BRADLEY, Judge.

text:
    BLUE CROSS-BLUE SHIELD OF ALABAMA, a corporation v. William James THORNTON and Rosie Mae Thornton.
    Civ. 634.
    Court of Civil Appeals of Alabama.
    Dec. 10, 1975.
    Rehearing Denied Jan. 7, 1976.

      J. Connor Owens, Jr., Bay Minette, for appellant.
    Taylor D. Wilkins, Jr., Bay Minette, for appellees.
   BRADLEY, Judge.

This is an appeal from a judgment rendered against defendant Blue Cross-Blue Shield for amounts recoverable under a group hospitalization insurance policy. Gunter-Dunn Company, a defendant below, does not join in the appeal.

Plaintiffs, Mr. and Mrs. Thornton, commenced this action on December 21, 1973 by filing a complaint in the Circuit Court of Baldwin County, alleging that Blue Cross-Blue Shield issued an insurance policy which by its terms provided coverage to Mr. Thornton and his dependents; that Blue Cross-Blue Shield agreed to pay Mr. Thornton and his dependents the cost of medical expenses for in-patient hospital services; that on March 27, 1972 Mrs. Thornton, as the result of an automobile accident, was confined to a hospital, thereby incurring hospital and doctor bills; that all premiums due on the insurance policy at the time of the accident were paid; and that Blue Cross-Blue Shield refuses to pay the costs of the wife’s hospital and doctor services.

Blue Cross-Blue Shield filed an answer alleging that Mr. Thornton had in fact been enrolled for coverage under a payroll group plan issued to Gunter-Dunn Company, his employer; that the entire group was terminated at the request of Gunter-Dunn effective March 20, 1972; and that at the time of the automobile accident, neither of the Thorntons was covered by any policy issued by Blue Cross-Blue Shield.

Plaintiffs thereafter filed an amended complaint, adding an allegation they had not received notice of or consented to any cancellation of the insurance contract, and therefore any cancellation by Gunter-Dunn was ineffective as to them.

Subsequent to the denial of a motion to dismiss, and to a further amendment to the complaint, Blue Cross-Blue Shield amended their answer to include the statement that Gunter-Dunn had requested cancellation effective March 31, 1972, but that the insurance was actually cancelled by Blue Cross-Blue Shield effective March 20, 1972; and further that Mr. Thornton, at the time this claim accrued, was not an employee of Gunter-Dunn, and therefore not entitled to the benefits of any insurance policy issued to Gunter-Dunn.

At the hearing of this cause, the court sitting without a jury heard the husband’s testimony and that of Mr. Pervie Mathews, manager of subscriber’s accounts for Blue Cross-Blue Shield. Additionally, several documentary exhibits were introduced, including the group policy and related papers; plaintiffs’ Blue Cross-Blue Shield identification card; an itemized hospital bill; and a check dated March 15, 1972, drawn by Mr. Thornton to the order of Gunter-Dunn, purportedly representing plaintiffs’ share of the March insurance premium. Also, plaintiffs introduced a second insurance policy from Blue Cross-Blue Shield, which Mr. Thornton claimed was delivered to his mailbox at Gunter-Dunn. However, the evidence tends to show that plaintiffs were covered, if at all, by the group hospitalization contract issued to Gunter-Dunn by Blue Cross-Blue Shield.

This group plan provided coverage to all eligible employees, and Gunter-Dunn paid a group premium based on the number of employees it invoiced to Blue Cross-Blue Shield each month. Premiums were due on the twentieth of each month, with a thirty day grace period. By specific provision, coverage ceased on the twentieth if any amount was outstanding, but would be reinstated if payment of amounts due was made during the grace period. The testimony taken at the hearing tended to show that Gunter-Dunn required contribution of premiums from the employees, as was authorized by the group insurance contract. In most cases contributions were made by payroll deduction.

The problem which led to this lawsuit arose because plaintiffs made contributions in á different manner. In January 1971 Mr. Thornton was injured and did not return to his duties at Gunter-Dunn. He was paid no more wages after this accident; he drew workmen’s compensation in lieu of wages. Nevertheless, Gunter-Dunn continued to carry Mr. Thornton on their monthly insurance group invoice, and required him to make his monthly premium contribution by check. The issue of whether plaintiffs were thereby ineligible for coverage was not assigned as error and will not be considered on appeal.

In February 1972 Gunter-Dunn wrote Blue Cross-Blue Shield, informing the latter that a new group plan with Aetna Life & Casualty had been arranged, commencing April 1, 1972. Cancellation of the existing group contract was requested effective March 31, 1972. It is stipulated by the parties that no further correspondence regarding the requested cancellation occurred prior to March 31.

On March 17 plaintiffs gave Gunter-Dunn a check for their contribution to the premium due March 20. Gunter-Dunn, however, never forwarded to Blue Cross-Blue Shield that money or any other por- • tion of the group premium due on March 20, 1972.

On March 27 the accident which produced plaintiffs’ present claim took place. Blue Cross-Blue Shield denied coverage, saying that the policy had been cancelled effective March 20, 1972.

On March 19, 1975 the trial court entered its decree awarding plaintiffs $656.-60, and making the following factual findings : that plaintiffs were entitled to notice of cancellation of the group policy under the terms of the policy; that the policy was cancelled by Blue Cross-Blue Shield because Gunter-Dunn had obtained other insurance; that Gunter-Dunn had requested cancellation effective March 31, 1972, and Blue Cross-Blue Shield’s attempt to cancel on March 20, 1972, without notice to either plaintiffs or Gunter-Dunn was ineffective; and that plaintiffs had paid all premiums required of them under the policy. On March 24, 1975 the trial court amended its decree to add the finding that Blue Cross-Blue Shield attempted to cancel for the reason that Gunter-Dunn had obtained other insurance when, in fact, no other insurance was in effect on either the date of attempted cancellation or the date Mrs. Thornton suffered her injuries. The amount of the award was unamended.

Blue Cross-Blue Shield’s motion for new trial was denied, and the present appeal was filed.

Despite the contrary finding of the trial court, we believe that the true cause of cancellation was the failure of Gunter-Dunn to pay premiums for the group policy due March 20. Cancellation for this reason under the terms of the policy is self-executing; it does not require an election or other affirmative procedure by the insurer. Section VI of the policy clearly states than when premiums are not timely paid coverages ceases. This provision is unambiguous; there is no room for the court to vary it by construction or by taking inconsistent oral testimony, General Motors Acceptance Corp. v. Kendrick, 274 Ala. 566, 150 So.2d 185. Furthermore, there is no evidence of conduct by Blue Cross-Blue Shield on which to base a finding of waiver as to the group policy.

Notwithstanding this view toward cancellation of the group policy, we' perceive that the trial court discovered a unique legal relationship arising among Mr. Thornton, Gunter-Dunn and Blue Cross-Blue Shield, which does not easily submit to analysis under the terms of the written contract alone, but called for the court to apply a more critical decisional theory in adjusting the rights and liabilities of the parties.

Mr. Thornton stands apart from the other members of the group. Unlike any other previously covered employee, his portion of the premium was not deducted from his salary and then forwarded to Blue Cross-Blue Sheld by Gunter-Dunn, but it was collected from him with the understanding that it was the amount due for group hospitalization coverage under the policy in effect on March 17, 1972. The trial court found that he “paid all premiums required of him under said insurance policy.” We are asked to reverse this finding.

There are no Alabama decisions directly controlling on these facts, but there is a definite trend, both in Alabama and other jurisdictions, to view this problem as one of agency, Harrison v. Insurance Co. of North America, 294 Ala. 387, 318 So.2d 253; Couch v. Connecticut General Life Insurance Co., 216 So.2d 72 (Fla.App.1968). If, under a group insurance policy, the employer is the agent of the insurer for the purpose of collecting the employees’ premiums, then the insurer remains liable on the policy to those employees whose premiums the employer has collected or deducted from wages, even after the group master policy has been cancelled because the employer has not paid the entire premium. If the employer is not the insurer’s agent for this purpose, then the insurer is not liable after cancellation. Cases outside of Alabama are in conflict as to when the employer is the insurer’s agent. Agency has been found in John Hancock Mut. Life Insurance Co. v. Dorman, 108 F.2d 220 (9th Cir. 1939); Weeks v. Pilot Life Insurance Company, 256 S.C. 81, 180 S.E.2d 875; Voris v. Aetna Life Ins. Co., 26 F.Supp. 722 (N.D.Okl.1939); and Likens v. John Hancock Mutual Life Insurance Co., 246 F.2d 897 (10th Cir. 1957). Agency has been rejected in Couch v. Connecticut General Life Insurance Co., supra; and Newman v. Home Life Ins. Co., 255 N.C. 722, 122 S.E.2d 701. The Couch case specifically notes that the cases which have held the employer to be the insurer’s agent rely on statutory support. We observe that this is not necessarily true. The Dorman decision, in particular, was rendered in the absence of a controlling statute.

The existence of agency should be determined by an examination of the facts of each case. If a consideration of the whole evidence is susceptible to the inference that one who collects money does so as agent for another, then a jury question exists, Patterson v. Williams, 206 Ala. 527, 91 So. 315. Where the trial court sits without a jury, its finding of fact has the effect of a jury verdict, Hall v. Clark, 225 Ala. 87, 142 So. 65. Such findings should be reversed only where palpably wrong, Alabama Digest, Appeal and Error, ^lOOS. The trier of fact’s right to determine the existence of agency applies to agency created by estoppel and to apparent powers of agency, Standard Oil Co. v. Gentry, 241 Ala. 62, 1 So.2d 29; Augusta Friedman’s Shop, Inc. v. Yeates, 216 Ala. 434, 113 So. 299.

These latter aspects of agency are well defined:

“An agent’s authority is measured by the powers which his principal has caused or permitted him to ‘seem to possess.’ As to third persons without knov ledge or notice, it is not limited to the powers actually conferred and those to be implied as flowing therefrom, but includes as well the apparent powers which the principal by reason of his conduct is estopped to deny. [Citations omitted.]
“Such apparent authority is the real authority so far as affects the rights of a third party without knowledge or notice. [Citations omitted.]” Patterson v. Williams, supra.

A defendant has been estopped to deny an agency even where the purported agent deals at arm’s length as to that defendant, Standard Oil Co. v. Gentry, supra. And an agency by estoppel can arise where plaintiff had no basis for any belief that there had been a change in the manner of operating a facet of business, when such a change has actually occurred, id. As between principal and agent the latter’s authority may be limited by secret instructions and restrictions; but as to third persons ignorant of the extent of the agent’s authority “mutual rights and liabilities are governed by the apparent scope of the agent’s authority,” Patterson v. Williams, supra. Secret instructions which conflict with the apparent powers of the agent will not affect the rights of third parties who deal in good faith, Portsmouth Cotton Oil Refining Corp. v. Madrid Cotton Oil Co., 200 Ala. 634, 77 So. 8. An agency cannot be effectively terminated without notice to third parties affected, Herndon v. Stanton, 221 Ala. 427, 129 So. 18.

The trial court’s finding that plaintiffs had paid all necessary premiums to Blue Cross-Blue Shield should be upheld if there is evidence which allows the inference that (1) plaintiffs reasonably came to rely on the belief that in dealing with Gun-ter-Dunn they were dealing with an agent of Blue Cross-Blue Shield, (2) that Blue Cross-Blue Shield caused or acquiesced in this reliance, and (3) that Blue Cross-Blue Shield never notified plaintiffs that the apparent agency had terminated. Under Standard Oil Co. v. Gentry, supra, the actual arm’s-length relationship between Gun-ter-Dunn and Blue Cross-Blue Shield would not, as a matter of law, demand reversal of the trial court.

In addition to the evidence already recited, the trial court had before it material which it could properly infer constituted indicia of agency: Mr. Thornton’s testimony that he knew Gunter-Dunn maintained Blue Cross-Blue Shield group coverage, and that once monthly payments were given to Gunter-Dunn, he had no knowledge of what became of them; his testimony that he picked up a copy of a Blue Cross-Blue Shield contract and ID card at Gun-ter-Dunn’s office, and that Gunter-Dunn had in the past notified him of delinquencies in his premium payments; Mr. Per-vie Mathews’ testimony that in matters of invoicing, collecting premiums, and cancellation, Blue Cross-Blue Shield had dealt with either Gunter-Dunn or the parent Johnston Stores; that plaintiffs’ ID card number is carried in Blue Cross-Blue Shield records as part of a “group invoice series” compiled by Gunter-Dunn; and, finally, the terms of the master policy itself which required Gunter-Dunn to furnish “such information as may reasonably be required” by Blue Cross-Blue Shield to enroll and terminate employees; required the employer to distribute benefit booklets and ID cards to its employees and to forward notices to them; and which levied premium fees on a per-employee basis.

This evidence tends to show that Gunter-Dunn “handled” a portion of the task of administering the insurance policy, and that Blue Cross-Blue Shield had access to the persons to whom it extended coverage in exchange for pecuniary consideration primarily by using Gunter-Dunn’s offices. We are not prepared to say that the trial court erred in finding, as we presume it did, that these handling and acces-sorial functions demonstrated an agency relationship, John Hancock Mutual Life Ins. Co. v. Dorman, supra. In Alabama, there is considerable reason to conclude that such a finding is not merely permitted but required. Payment by an employee of a monthly premium to the employer “is payment to the insurer so far as such employee is concerned,” All States Life Ins. Co. v. Tillman, 226 Ala. 245, 146 So. 393. “Undoubtedly, where the employee contributes to the premium payment, he should have something to say regarding the cancellation . . ..” Shears v. All States Life Ins. Co., 242 Ala. 249, 5 So.2d 808. This clearly discernible trend toward recognition of an agency relationship between insurer and employer is cemented by the very recent opinion of Harrison v. Insurance Co. of North America, supra, in which the Alabama Supreme Court held an employer to be the insurer’s agent for purpose of notice of changes in coverage. It is not necessary for us to say that such a result is required in the instant case; it is sufficient that this line of cases indicates that the trial court’s decision is not erroneous. In addition to handling substantial accounting activities for the insurer, Gun-ter-Dunn provided the means of access Blue Cross-Blue Shield had to the people it covered. That, in a proper case, such an intermediary can be an accessorial agent by estoppel is clear from Standard Oil Co. v. Gentry, and Augusta Friedman’s Shop, Inc. v. Yeates, both supra.

The trial court was persuaded that the facts made this an appropriate case to find such an agency. There is no basis for reversal. Although the group policy was effectively cancelled as to the group, defendant is estopped to deny coverage of a group member whose premium was collected while the policy remained in force, and whose claim arose during the period for which the premium was paid and before he received notice of cancellation.

There being no reversible error in the record, we affirm the judgment of the trial court.

Affirmed.

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


text:
    Elizabeth Cole BAGGS v. Robert Edwin BAGGS.
    Civ. 644.
    Court of Civil Appeals of Alabama.
    Jan. 7, 1976.
    Whitesell & Gordon, Montgomery, for appellant.
    W. Mark Anderson, III, Montgomery, for appellee.
   BRADLEY, Judge.

Elizabeth Cole Baggs and Robert Edwin Baggs were married in May 1956 and divorced for incompatibility on July 18, 1975 by order of the Circuit Court of Montgomery County. The trial court awarded the wife, inter alia, $7,600 gross alimony, payable $250 per month for the first year and $150 per month for the next two years; and an attorney’s fee of $350. She appeals on the ground that the award of permanent alimony is inadequate.

The parties were married for nineteen years and produced no children. Appellant had been married once before and had two daughters by her former husband, a military flyer who was killed in a plane crash. As a result of his death, the appellant received $263 per month and $200 for the children, along with a lump-sum settlement of approximately $7,000. However, the $263 payment ceased upon appellant’s marriage to appellee.

Appellee Robert Baggs, at the time he married appellant, was a graduate psychologist practicing in Savannah, Georgia. Shortly after the marriage, he decided to obtain a doctorate in psychology. It was agreed that appellant would use the $200 received on behalf of the children to help support the family. Appellee obtained fellowships, assistantships and other financial aid while attending Purdue University. During this time he also worked for a state mental hospital and for the Veterans Administration. Appellant states that she contributed $175 a month from her savings during the time they were at Purdue University. Appellee answers that he was unaware of this contribution.

After obtaining his doctorate from Purdue, the appellee was employed at a mental health center in Peoria, Illinois, then at a center in Decatur, Alabama, and finally at the mental health center in Montgomery, Alabama. For about the last two years, appellee has been a privately practicing clinical psychologist in Montgomery.

While working at the Montgomery mental health center, appellee testified that he earned about $20,000. In the first year of private practice, along with a parttime teaching position at AUM, he earned about $16,500. During the first half of the second year of practice, his earnings were about $7,800. At the present time appel-lee’s net monthly income is about $1,000— $1,100. His personal expenses are approximately $900 a month.

Appellant, a fifty year old woman in reasonably good health whose two children are living on their own, was employed as a bookkeeper-secretary earning about $500 a month. She had savings of about $5,100, the savings being what was left of the benefits received after the death of her first husband and the sale of a house acquired during that first marriage. She also had two insurance policies with cash surrender values of about $2,800 and a checking account balance of about $825. She owed $1,500 on a new automobile. Her total monthly expenses were estimated to be about $830.

The parties owned no real estate, stocks, or bonds. The husband’s main asset was cash surrender value in several life insurance policies of about $10,000. He also owned an automobile and was living in a one bedroom apartment.

It was made known to this court subsequent to the appeal that appellant was receiving $336 per month from the U.S. Government as a result of the death of her first husband.

We said in Tyler v. Tyler, 52 Ala.App. 430, 293 So.2d 856, that:

“The amount of alimony to be fixed pursuant to a divorce is within the sound discretion of the trial court. The decree is also presumed to be correct, where the testimony was taken orally before the court, and this presumption is overcome only where the appellate court deter-' mines from an examination of all the evidence that the decree is contrary to and unsupported by the evidence. Hallman v. Hallman, 51 Ala.App. 460, 286 So.2d 863.
“Each case must be determined upon its own relevant facts in light of what is fair and reasonable to both parties with the following factors appropriate for consideration: the earning capacity and future prospects of the parties; their ages, sex, health and station in life; how long they were married; whether there are children to support; and the conduct of the parties with reference to the cause of divorce. Phillips v. Phillips, 49 Ala.App. 514, 274 So.2d 71; Davis v. Davis, 274 Ala. 277, 147 So.2d 828.”

As stated above, the evidence shows the wife to be in good health, working and earning $500 per month; her prospects for the future are good. The husband’s prospects are also good and his gross income is about $1,400 per month. There are no dependent children, and the parties’ ownership of property is limited to household goods, automobiles, and the husband’s insurance policies.

The husband’s income is greater than the wife’s but not to such an extent as would render the award to the wife unjust. Appellant’s earning prospects are good and with the income from the government she will be able to support herself.

After carefully considering the evidence and applying the usual presumptions thereto, we cannot say that the trial court’s award of alimony to appellant is so unjust as to amount to an abuse of discretion. Consequently, the decree of the trial court will be affirmed.

Appellant’s counsel has requested the award of an attorney’s fee for services rendered in behalf of appellant’s appeal. In view of the decision of this court on the merits of the appeal, the request is denied.

Award of attorney’s fee denied; affirmed.

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


author: DeCARLO, Judge.

text:
    Gene BELCHER v. STATE.
    4 Div. 318.
    Court of Criminal Appeals of Alabama.
    March 18, 1975.
    Rehearing Denied April 22, 1975.

      George E. Trawick, Ozark, Patterson & Rinehart, Montgomery, for appellant.
    William J. Baxley, Atty. Gen., and David W. Clark, Asst. Atty. Gen., for the State, appellee.
   DeCARLO, Judge.

Larceny; three years.

The Grand Jury of Barbour County, charged that Gene Belcher “ . . . fe-loniously took and carried away timber to-wit: saw logs a further description of same being unknown to the Grand Jury; being of the total and combined value of, to-wit; $500.00; the personal property of Guice Slawson . . . ”

Guice Slawson, manager of Midway Lumber Co., Inc., Louisville, Alabama, contracted with appellant to cut timber at the rate of $40. per thousand. Stumpage was to be paid only when tracts were obtained by appellant.

In the latter part of September or early October, 1973, appellant started cutting on a tract Slawson had acquired from Catherine Davis, situated behind Hubert Tyler’s store on Blue Springs Highway. Before Christmas, 1973, Belcher was cutting timber behind Slawson’s house and was paid $30. per thousand. Slawson explained the rate was different because he loaded the logs and not Belcher.

Around December 27, 1973, Belcher returned to cutting timber on the Davis place, and according to Slawson, appellant’s equipment remained in the woods where the operation continued until January 26, 1974.

On Monday, December 31, Belcher requested money to pay his men, and Slaw-son gave him $150. During this time Belcher commented he had been unable to haul timber due to rainy weather but had piled the logs already cut.

The week before January 26, 1974, Slaw-son noticed approximately 5,000 feet of logs piled behind the house of appellant’s father and estimated their worth at about $500. He recognized the logs as those being cut off the Davis place. He admitted the logs had no distinguishing marks but were the same kind of pine.

Slawson testified he could not identify logs at a mill as coming from a particular tract but did recognize the logs in question as being from the Davis place. Although he could not absolutely swear they were the same, he maintained they were similar in appearance to those Belcher was unloading.

Slawson further stated the logs were not piled behind the home of appellant’s father before Christmas. He was aware, however, there wasn’t enough money coming in for the timber he knew to be there.

On January 26, 1974, Slawson confronted appellant about the logs beside his father’s place and was told they were bought from Henry Chambers, his foreman. Slawson testified he knew the timber on' Chambers’ land was cut in 1972, and further, in August, 1973, Slawson had cut and moved the timber on the tract belonging to appellant’s father.

During the trial a letter addressed to Slawson from Ralph Reynolds of the Jones-Reynolds Lumber Co., Abbeville, Alabama, was introduced into evidence. It listed these purchases of lumber and pulpwood from appellant:

"Dec. 28, 1973 1555' logs
"Jan. 4, 1974 1217' logs
"Jan. 11, 1974 2558' logs, 3.57 cords pulpwood
"Jan. 18, 1974 3920' logs."

In conclusion, the letter stated checks for these purchases were made to Henry Chambers with no stumpage deductions.

Slawson stated he did not authorize Belcher to make these sales, and he estimated this timber to be worth about $1,100.00.

Charles Arrington was first called by the state and testified he worked for appellant about four weeks from December, 1973 until January, 1974, hauling pulpwood to Abbeville. During his testimony, he recalled the occasion when appellant directed him to haul a load of logs from the Davis tract to the home of appellant’s father. When Arrington refused, appellant responded, “just slip over and I’ll carry them.” Arrington stated he rode the truck to town, and Belcher drove off with the logs.

On cross-examination, Arrington admitted signing a statement written by defense counsel, reciting Arrington had not hauled any logs but only pulpwood to Abbeville, and further that Belcher did not ask him to haul logs belonging to Slawson anywhere; that Slawson was told Belcher was going to haul logs to the home of appellant’s father, but Belcher was to buy them; and Arrington never hauled any logs because Belcher didn’t buy them.

Arrington acknowledged he could not read and that the statement was read to him by defense counsel.

Later appearing as a defense witness, Arrington’s testimony reaffirmed the signed statement. On cross-examination, he recanted and admitted riding with Belcher when logs from the Davis place were taken to the home of appellant’s father.

When defense counsel specifically asked if the load was pulpwood, Arrington replied, “I didn’t pay no attention to whether it was pulpwood or logs. I suspect it was logs.”

State’s witness, Henry Chambers testified he worked for appellant as foreman from right after Christmas, 1973, until the end of January, 1974. During this time Chambers did not cut any of his.own timber nor sell any to appellant.

Chambers stated they moved onto the Davis place right after Christmas, but did move to Belcher’s place on one occasion and then returned. The four checks drawn on Jones-Reynolds Lumber Co. were brought to him by the appellant. After cashing the checks, Chambers would pay the men and give the balance to appellant who then paid Chambers.

On cross-examination he stated he did not know where the logs were coming from that were sold in his name.

Appellant testified that he cut timber on his father’s place in September and October, 1973, and ramped it below the house. Logs remained there two to three months and could not be seen from the road. Belcher explained that loads of these logs were sold in Henry Chambers’ name for several different reasons: (1) to keep Slawson’s money separate (2) to save on taxes and (3) to provide for payroll expenses. After appellant began cutting timber on the Davis place around August or September, 1973, he moved on and off about three or four times. Belcher further explained that Slawson did not get all of his father’s timber, but only about 15 acres. Appellant denied taking any logs from the Davis place to his father’s house or directing Arrington to. He further denied taking any logs to Jones-Reynolds Lumber Co., but admitted carrying pulpwood, which under his agreement with Slawson, he could sell to anyone.

Belcher admitted when Slawson reduced the price of logs from $40. to $30. per thousand it made him mad and he stated he would get even.

He explained that “I owed him some money and I was going to pay him and get even with him by quitting.”

I

Counsel for appellant maintains the court erred in overruling his motion to exclude the state’s evidence.

In Meadows v. State, 36 Ala.App. 402, 56 So.2d 789, this court held:

“ . . . Larceny is the felonious taking and carrying away of personal property of another with the intent on the part of the taker to convert it to his own use, or to deprive the owner thereof. The offense involves a trespass on the possession of another. Ludlum v. State, 13 Ala.App. 278, 69 So. 255; McKinney v. State, 12 Ala.App. 155, 68 So. 518; Kramer v. State, 16 Ala.App. 456, 78 So. 719; Weldon v. State, 17 Ala.App. 68, 81 So. 846.
“If a person acquires the possession of personal property tortiously, and thereafter forms the intent and executes the purpose to convert it, he may be guilty of larceny.”

In the case before us we have substantially summarized all of the facts submitted to the jury, and there appears to have been factual issues from which a jury could infer larceny.

For this reason, we will not disturb the verdict.

II

In the instant case, appellant was arraigned on February 13, 1974, and after his plea of not guilty the court set the case for trial on March 5, 1974.

Appellant now insists he was denied due process when the court without his consent or knowledge moved the trial date to March 4, 1974.

Counsel argues this was in contravention of Title 15, Section 316, Code of Alabama, 1940, which provides:

“It is the duty of the clerk of the circuit court to set for trial all criminal cases in his court, except capital cases, and cases of parties in custody, for particular days; and no case so set shall be called for trial before such day.” (Emphasis ours)

Addressing a similar issue in McDaniel v. State, 97 Ala. 14, 12 So. 241, Justice Head commented:

“If there was an irregularity in setting this cause down for trial, as appellant’s counsel contends, it was waived. Appellant went to trial without insisting upon the irregularity and can not now, for the first time, he [sic] heard to complain of it.”

It is our judgment that what Justice Head stated is applicable here, and in the absence of some adverse ruling to the appellant’s cause, we have nothing to review.

Ill

Next it is contended that twice during the trial, proceedings were held outside the hearing of appellant and the court reporter.

Counsel insists appellant’s right to be present throughout all the proceedings of his trial was violated when the court did not assure that such proceedings were being preserved.

In 23 C.J.S. Criminal Law § 974, we find the following comments on this point:

"... The exclusion of accused during conferences of court and counsel on questions of law, at the bench or in chambers, has been considered not to constitute a denial of the right of accused to be present at every stage of the trial.”

The bench conferences complained of were participated in by appellant’s counsel along with the state’s attorney, and Belcher was always present in the courtroom. No objection was interposed, therefore, we do not believe he can now complain of any possible prejudice. Steiner v. United States, 5 Cir., 134 F.2d 931; Wade v. State, 49 Ala.App. 601, 274 So.2d 626.

IV

During the trial the jury was allowed to separate without consent of the appellant. This fact was later assigned as a ground for appellant’s motion for a new trial and after an evidentiary hearing on this point, the motion was overruled. Appellant now asserts this as error, and argues the state failed to show no injury resulted from the separation.

In Alabama, one of the leading cases on this point is Palmore v. State, 283 Ala. 501, 218 So.2d 830. There Justice Coleman cited this prevailing rule:

“. . . [T]hat a separation of the jury, after the trial has been entered upon and before verdict, creates a cause for reversible error in favor of defendant unless the state affirmatively shows that defendant was not injured thereby. Lynn v. State, 250 Ala. 384, 386, 34 So. 2d 602.
“Such separation pending a trial is not necessarily ground for a new trial but is sufficient to show a prima facie right to it, and the burden is upon the state, after such separation is shown, to prove that the jurors conversed with no one affecting the prisoner’s guilt and that no other influences were exerted which may have biased their deliberations . . .”

On the motion for a new trial be- , . , . , fore us, testimony was taken from the twelve jurors participating in appellant’s trial. Each juror testified no one spoke to him about the case. On cross-examination however, two of the jurors said they did not remember discussing the case with anyone.

After a close examination of the entire record of this hearing, we find the state did meet its required burden.

No error appears in the record.

Affirmed.

All the Judges concur.


author: FAULKNER, Justice.

text:
    In re Gene BELCHER v. STATE. Ex Parte Gene Belcher.
    SC 1271.
    Supreme Court of Alabama.
    Jan. 9, 1976.
    George E. Trawick, Ozark, for petitioner.
    William J. Baxley, Atty. Gen., and David W. Clark, Asst. Atty. Gen., for the State, opposed.
   FAULKNER, Justice.

Petition of Gene Belcher for Certiorari to the Court of Criminal Appeals to review and revise the judgment and decision of that Court in Belcher v. State, 56 Ala. App. 688, 325 So.2d 195.

Writ quashed as being improvidently , , granted,

All the Justices concur.


text:
    James Luther STROUD v. STATE.
    1 Div. 518.
    Court of Criminal Appeals of Alabama.
    June 30, 1975.
    Rehearing Denied July 29, 1975.
    Ian F. Gaston, Mobile, for appellant.
    William J. Baxley, Atty. Gen. and David W. Clark, Asst. Atty. Gen., for the State.
   DeCARLO, Judge.

Second degree murder; life.

Ronald Adams testified that on December 9, 1973, he and his wife, Betty, went to the B & J Lounge around midnight. They were accompanied at the time by Helen Fields, Bill Fields and Charles E. Lane. As the group entered, someone inside hollered, “Close the g— d— door.” Occupying the lounge at the time was a motorcycle gang known as the “Banditos.” No other customers were inside except the members and their girl friends. In all, they numbered about seventeen.

The Adams party seated themselves at a table apart from the gang and then Ronald Adams went to the restroom. As he left the restroom, members of the gang blocked his passage with their chairs and he had to forcibly brush through. When he reached their table, Mrs. Adams exclaimed, “Let’s leave”, and the party began to leave their chairs. Meanwhile members of the gang began to shout obscenities.

When Adams’ party approached the door, Ronald Adams turned, pointed to one of the members, and directed him to go outside and they would settle it. After this remark one of the gang shoved the door on Adams, knocking him across the floor. The fight erupted and four or five members of the gang started fighting Fields.

The owner ran over to Charles Lane and asked him “not to let this get out of control.” Subsequently the owner screamed, “I’m going to call the police. Everybody get out.” At that point Charles Lane fired into the ceiling and more of the members piled on Fields.

Ronald went over to his wife, removed a “38” from her purse and fired into the floor. Realizing it had no effect he returned the gun to the purse, picked up a crutch and attempted to help Fields. About that time a woman screamed and Adams saw two members of the gang holding Lane by the shoulders. Appellant, who was standing to Lane’s side, stabbed him. Lane was released and slumped to the floor.

Appellant then turned to Ronald Adams and started stabbing him. Adams jumped to the side of the juke box and called to his wife, “Betty, he’s cutting me to death.” As he warded off the blows with his feet, Mrs. Adams fired and appellant fell to the floor near Lane.

Adams testified Stroud was wearing long hair and a goatee at the time of the stabbing, and although appellant was clean-shaven and had shorter hair at the trial, Adams was positive he was the one who stabbed Lane.

Betty Adams’ testimony was substantially the same as that of her husband, except a question was raised concerning an apparent contradiction in a statement she had given to the police. She explained the statement was typed incorrectly, and she had initialed the correction. The portion in question, related to a conversation Mrs. Adams had with her husband after the stabbing, while he was in the emergency room of the hospital. It reads :

“. . . I asked Ronnie if one I shot that was cutting him (Ronnie) / /s/ was also cutting Charley (/s/B.A.) and Ronnie said, Yes. (sic).”

Further, at the time she fired, the man stabbing her husband was appellant.

Doctor Montgomery found six stab wounds on the body of Charles Lane and described two in the chest as causing death. An examination of the deceased’s blood alcohol content showed .21 percent; .11 percent above the legal intoxication level.

The testimony of Betty Fields followed that of Ronald Adams up to the time when the shots were fired. From that point on she didn’t see anything. Mrs. Fields stated she did not see the person who cut the deceased but did see five or six of the gang around when he fell to the floor.

Detective James Gill, one of the Mobile police investigating the homicide, went to Gulfport, Mississippi, along with other officers to arrest the motorcycle gang. He testified appellant admitted being shot and stabbed at the B & J Lounge on December 9, 1973. On cross-examination Detective Gill testified that Lane’s general reputation for peace and quiet was bad.

James Luther Stroud testified that on the night in question he and members of the “Banditos” motorcycle gang were having a social drink in the B & J Lounge. During that time five people came in. Two of the men had guns and started a fight. One of the armed men picked up a crutch and hit one of the gang who had a broken foot. As the appellant turned to go out the door, a shot was fired near him and someone yelled, “halt.”

About this time appellant was knocked to the floor by a blow from a pistol which fired simultaneously. While he was lying on the floor the man with the crutch pulled a pistol and came toward him. Appellant pulled a knife and slashed at the man’s legs. The gun discharged, and the bullet went through the appellant’s arm into his stomach. He crawled out the door and left in a van-truck for Mississippi.

Appellant denied stabbing the deceased and testified he could not say whether or not he had even seen him.

I

Before the State completed its direct examination of Ronald Adams, appellant requested any statements made by this witness prior to the trial. Counsel insisted appellant was entitled to them under the “Jencks Rule.”

The jury was excluded and during this hearing it was established that the witness had made a prior statement to the grand jury. The grand jury testimony involved the witness’ ability to identify appellant as the assailant, and defense counsel argued there was an apparent discrepancy between the testimony at trial and that given previously to the grand jury.

Upon this basis the appellant made a request to inspect and use the transcription of the grand jury testimony for purposes of cross-examination. The State countered that the testimony was a “work product” of the district attorney’s office and was not subject to the Jencks rule.

The trial court denied appellant’s request and counsel argues this denial curtailed appellant’s right to effective cross-examination.

The rule of Jencks v. United States, 353 U.S. 657, 77 S.Ct. 1007, 1 L.Ed.2d 1103, was rejected by our Supreme Court in Sanders v. State, 278 Ala. 453, 179 So.2d 35, and is not applicable. Thigpen v. State, 49 Ala.App. 233, 270 So.2d 666. Our appellate courts have held that the trial court is not put in error if it does not allow the inspection and use of grand jury notes until the State has used them to test recollection, to impeach or unless contradiction is shown. Adams v. State, 33 Ala. App. 136, 31 So.2d 99; Bailey v. State, 24 Ala.App. 339, 135 So. 407; Williams v. State, 32 Ala.App. 597, 28 So.2d 731.

In determining whether a contradiction was shown we find these instances referring to prior testimony by this witness before the grand jury:

Voir dire outside the jury’s presence:
“MR. BRUTKIEWICZ: Judge, he’s asked the witness several questions. May I ask several questions relating to whether or not he told the members of the Grand Jury that he could not identify the person who stabbed the deceased ?
“THE COURT: Well, we’re getting into an area ...
“MR. HOLLOWAY: I don’t care if he asks him that. He can ask him that.
“THE COURT: I don’t want to belabor this area now. I want to make a ruling on . . .
“MR. HOLLOWAY: Well, I am going to ask you to let Mr. Brutkiewicz ask him that.
“THE COURT: Well, go ahead and ask that question, now.
“WITNESS: I believe I told the Grand Jury that I didn’t know if I could identify the man or not.
“MR. BRUTKIEWICZ: But you testified before the Grand Jury ?
“WITNESS: I believe I told the Grand Jury I didn’t know.
“MR. BRUTKIEWICZ: All right. I think that’s exactly what we wanted to know . . . ”
Cross-examination before the jury by Mr. Fairchild:
“Q. Now you say — haven’t you previously testified before Friday under sworn testimony and said that you couldn’t identify the person that attacked Charlie Lane?
“A. I said I believe that I didn’t — I wasn’t sure if I could identify the man or not.
“Q. You testified before another body; haven’t you?
“A. Right.
“Q. And now today in this courtroom, you look at the Defendant and you don’t know who he is, and you testify that he’s the man; don’t you?
“A. I recognize him now.
“Q. How do you recognize him ?
“A. I recognize him as being the man.
“Q. Except — how does he differ except what he was that night (sic) ?
“A. His hair is a little shorter, a good bit shorter, and he had a goatee, beard.
“Q. How about a jacket?
“A. Yeah; he had a j acket on.
“Q. What else is different?
“A. That’s all I can see; that his hair’s shorter, and he did have a goatee.
“Q. So you’re testifying that the man that (sic) that night did the stabbing that you saw, you only saw him make one stab wound on Charlie Lane; is that right ?
“A. Right.”
“Q. Now the question, as testified earlier, that you didn’t believe that — you say you testified earlier that you didn’t believe that you could identify the assailant of Charlie Lane . . .
“A. No, sir; I said I testified before the Grand Jury that I didn’t know if I could identify him.
“Q. You didn’t know if you could identify him.
“A. I said I didn’t know if I could identify him.
“Q. Okay. Now, of course, while we were striking the jury, then, they brought the Defendant out here and you saw him; didn’t you ?
“A. I haven’t seen this man since that night; no, sir.
“Q. You didn’t see him a while ago when you testified ?
“A. A while ago.
,., , ,. . You didn t see him earlier m the trial sitting at the table here ?
“A, No, sir; I have not seen that man until I walked in this courtroom right now.
“Q. Didn’t you tell Mr. Willis in the back room that you could identify the man?
“A. Tell Mr. Willis?
“Q. Didn’t you tell Mr. Willis that, earlier in the back room, that you could identify him?
“A. I told Mr. Willis I thought J probably could, but I didn’t know. I’d have to see the man.
“Q. Then you were prepared to identify anybody they had here, then; weren’t you?
“A. No, sir.”

As can be seen from the above recitals, no contradiction was made to appear, and we hold the action of the court was proper. We also note, that following the court’s initial denial of appellant’s request for the grand jury testimony, defense counsel later made a motion for the trial court to review the grand jury notes in camera. As a result of this request the following morning the court directed that appellant be furnished a copy of Ronald Adams’ testimony to the grand jury.

It is also apparent that defense counsel at no time afterwards attempted to call Ronald Adams for further cross-examination. Under the circumstances, we fail to see how the court could be put in error.

II

During trial the defense called Captain Williams of the Mobile Police Department, and on cross-examination the State inquired whether appellant was advised of his constitutional rights. Captain Williams testified he was and began to answer questions involving the “Miranda .rights.” Defense counsel interposed an objection averring, “Unless all officers were present when a statement was made, it would not be admissible; and Sergeant Jordon is not here.”

The objection was overruled, and now appellant complains the trial court was under a duty to withdraw the jury and determine the voluntariness issue outside of its presence. Defense counsel argues that the court was put on notice that the “confession’s admissibility” was in dispute, and, although the jury was later excluded, the laying of the preliminary “Miranda” predicate in the jury’s presence was prejudicial.

The U.S. Supreme Court has never ruled that all voluntariness hearings must be held outside the presence of the jury regardless of the circumstances. Pinto v. Pierce, 389 U.S. 31, 88 S.Ct. 192, 19 L.Ed. 2d 31. In State v. Wilbanks, 289 Ala. 166, 266 So.2d 619, our Supreme Court recognized the propriety of excluding the jury in such matters, but ruled that the trial court was not under a duty to withdraw the jury ex mero motu.

In the case before us no evidence on the content of the statement was ever presented. Only the threshold questions in the “Miranda litany” were gone into before the jury. It was only after these questions were answered that defense counsel requested the jury’s exclusion, and the court immediately complied.

Our review of the record did not reflect any mention of a confession during these preliminary questions, and the only matter of this nature came from the defense when counsel objected about a statement.

Under the circumstances outlined and the foregoing decisions, we cannot see where the rights of the appellant were prejudiced.

Ill

The refused charges were fairly and substantially covered in the court’s oral charge and in the charges given at appellant’s request. Title 7, Section 273, Code of Alabama Recompiled 1958.

We have examined the evidence presented and hold it was sufficient for the jury’s consideration. The motion to exclude, and the motion for a new trial were properly overruled. Young v. State, 283 Ala. 676, 220 So.2d 843.

Our search of the record reveals no error.

Affirmed.

TYSON, HARRIS and BOOKOUT, JJ, and SIMMONS, Supernumerary Circuit Judge, concur.

CATES, P. J., not sitting.


author: JONES, Justice.

text:
    In re James Luther STROUD v. STATE of Alabama. Ex Parte James Luther Stroud.
    SC 1402.
    Supreme Court of Alabama.
    Jan. 2, 1976.
    Ian F. Gaston, Mobile, for petitioner.
    William J. Baxley, Atty. Gen., and David W. Clark, Asst. Atty. Gen., for the State, opposed.
   JONES, Justice.

On preliminary examination, the petition for writ of certiorari to the Court of Criminal Appeals, 56 Ala.App. 692, 325 So.2d 200, was granted. Upon further consideration, we hold that the writ was improvidently granted and is due to be quashed notwithstanding the able argument of petitioner’s counsel who did not represent him at nisi prius.

Writ of certiorari quashed.

HEFLIN, C. J., and MERRILL, MADDOX and SHORES, JJ-, concur.


author: CLARK, Supernumerary Circuit Judge.

text:
    M. B. SASHINGTON v. STATE.
    1 Div. 602.
    Court of Criminal Appeals of Alabama.
    Oct. 1, 1975.
    Rehearing Denied Nov. 4, 1975.

      S. J. Laurie, Chatom, for appellant.
    William J. Baxley, Atty. Gen., and William A. Davis, Asst. Atty. Gen., for the State.
   CLARK, Supernumerary Circuit Judge.

Appellant was tried on an indictment charging murder in the first degree, con-’ victed of murder in the second degree and sentenced to imprisonment for thirty years.

The deceased was Ollie Williams, affectionately known as “Coon” and endearingly addressed by the younger set as “Uncle Coon.” He was celebrating his threescore and fifth birthday the night he was killed. It was a well attended party at his home, somewhat of a “come-and-go” but more of a “come-and-stay” or a “come-and-go-and-come-back” affair. It commenced about sundown and was suddenly broken up at about the stroke of midnight by the single blast of a shotgun that fatally felled the honored host. Defendant, who lived next door (about ISO yards away) in a trailer, was there. He undoubtedly was included in the guest list; he lived with his brother on the property of deceased. The evidence clearly shows that defendant and deceased were friends, that there had been no previous trouble between them. Defendant came to the party twice, the second time with his single-barrel shotgun that on his first appearance he had left at his trailer. He had been wont to limit his use of the shotgun to shooting squirrels and turkeys.

There were copious refreshments variously provided. Uniformity is lacking in the evidence as to any general question of intoxication of the celebrants, some witnesses indicating that there may have been a beer or so, others that many were “tight.” Some fights or “fusses” had occurred in the house or on the porch; one of which had commenced in the presence of defendant only a short while before defendant went to his trailer to get his gun. Defendant’s brother and father were involved to some extent. One of such “fusses” had started in the house, but apparently it had moved therefrom to the door of the front porch about the time defendant arrived in the front yard with his gun. In some way deceased had allowed himself to get involved, perhaps as a peacemaker, and had come through the front door of the house onto the porch with some of the others. Almost every person at the party that testified, about fifteen, heard the shot — one shot only. Several testified, and defendant admitted in his testimony, that his shotgun was fired, that he was standing at the bottom of the front steps, with the muzzle of the gun pointed in the direction of the front porch where deceased and others were at the time. Almost all the witnesses who observed him at the time corroborate his own testimony that the gun was not brought to his shoulder when it was fired, but that he was holding it waist high.

Appellant stresses the friendly relationship between defendant and deceased and persuasively argues that the circumstances as a whole show that defendant did not intentionally kill his friend.

To be guilty of murder, one has to have the intention to kill a human being, but it does not have to be the person who is killed. The principle has been firmly established and was relatively recently applied in Tolen v. State, 49 Ala.App. 353, 272 So.2d 279, cert. denied 289 Ala. 752, 272 So.2d 281, and Harris v. State, 46 Ala.App. 189, 239 So.2d 331.

Appellant additionally argues that he did not intentionally kill anyone. He may not have done so, but a jury question was clearly presented, we think. There is nothing in the evidence to indicate that the gun would have gone off without a finger on the trigger. The only finger that could have been on the trigger would have been a finger of defendant. It was a bolt action three-shell gun. The empty shell was found on the ground after the death of Williams. A live shell was found in the gun where it was placed by a cedar tree by defendant. The shells were twelve gauge. The live shell contained No. 6 shot; such shot were found post mortem in the head of deceased. The porch was about four feet off the ground where defendant was standing at the bottom step. Deceased was standing on the porch at the time. Although appellant would not necessarily have known that the muzzle of the gun was pointed at the head of deceased, there can hardly be any question that he could have known and probably did know that it was pointed in the general direction of persons standing on the porch. Under these circumstances the jury was not required to believe his story that the gun went off accidentally. There was some evidence also of flight on the part of defendant for a short time, but we do not attach great significance to defendant’s leaving the scene abruptly for a while, as did others. He returned in a short time and voluntarily faced the results of what occurred, for which he evinced regrets, and we are not disposed to doubt his sincerity.

Appellant further argues that there was no evidence of malice, an essential ingredient of murder even in the second degree. It is to be readily seen that if there was no intention to kill or fire the gun, there was no malice. But if defendant intentionally fired the gun under the circumstances stated, malice is inferable as a matter of plain logic, as well as a result of the application of the principle that the intentional and unjustified use of a deadly weapon in a manner calculated to cause death raises a presumption of malice that will prevail unless circumstances of the killing disprove or rebut malice. Smith v. State, 53 Ala.App. 141, 298 So.2d 71; Pardue v. State, 52 Ala.App. 339, 292 So.2d 147; Williams v. State, 51 Ala.App. 694, 288 So.2d 753.

Under all the circumstances of the tragic fatal shooting of seemingly a good man by his friend, the defendant, also seemingly a good man, the evidence as a whole convinces us that a jury question was presented. In many respects the conduct of defendant, as well as the conduct of others, is perplexing. The argument in favor of his innocence as a murderer has some appeal, but we are convinced that the verdict of the jury is not contrary to the weight of the evidence and that the ground of the motion for new trial in this respect was not well taken. The extent of punishment, within the limits fixed by statute, was within the discretion of the jury.

We base our conclusions hereinabove reached upon the evidence as summarized hereinabove and the entire evidence in the case. We deem it necessary to narrate an additional item of evidence for an appropriate determination of the question next discussed.

There was another shotgun at or near the residence of deceased on the occasion of his death. There is no evidence that it was ever in the house, but according to the testimony of defendant, corroborated to some extent by other testimony, it was in the possession of one who was in the front yard, a well lighted yard. It was in the hands of one James Abston. Defendant saw Abston with the shotgun standing in the yard at the time defendant left the house to go to his trailer to get his shotgun. When he returned with his shotgun to the house of deceased, Abston was still standing in the yard with the shotgun in his hand. After the shot, Abston left the scene. On cross-examination of defendant, he testified that Abston was waving the gun while standing in the yard. He said that he did not see Abston waving it at defendant’s brother or at defendant’s father or that Abston threatened defendant. Abs-ton was the stepfather of the girl defendant was going with at the time. On redirect examination of defendant the following occurred:

“Q Okay, M. B., you said James Abs-ton had a gun out there waving it ?
“A Yes, he did.
“Q All right, have you ever been shot before ?
“MR. KIMBROUGH: I object to that, Judge.
“JUDGE LINDSEY: I sustain the objection.
“MR. LAURIE: Your Honor, I think it’s very relevant. “JUDGE LINDSEY: On what ground ?
“MR. LAURIE: On the ground that it related to whether or not this defendant believed that he needed his gun.
“JUDGE LINDSEY: I sustain the objection. It’s too far fetched.
“Q Has James Monroe Abston ever shot you?
“MR. KIMBROUGH: Object to that.
“JUDGE LINDSEY: I sustain the objection. We’re not trying any other case but this case. I sustain the objection and exclude that from you. You will not consider it.”

As previously indicated, we are convinced that the evidence justified a finding by the jury that defendant killed Williams intentionally and with malice aforethought. Nevertheless, we are not convinced that the jury could not have reasonably found otherwise. We think the evidence sought to be offered by an answer to the questions objected to would have had a bearing upon the issue of malice vel non and that of intention vel non.

The rule to the effect that ordinarily evidence of a previous difficulty between defendant and deceased, or between defendant and a third party related to deceased, or connected with the fatal incident, in any homicide case, or a case of assault with intent to murder, is not admissible if there is no evidence of self-defense, or if the evidence shows conclusively that defendant was the aggressor thereby negating self-defense as a matter of law, is not controlling in a case of this kind, wherein defendant’s defense is not based upon a claim of self-defense. Even if defendant had claimed that the shooting was in self-defense, this would not preclude him from showing that the offense was committed under circumstances reducing it to manslaughter. Reeves v. State, 186 Ala. 14, 65 So. 160 (1914); Byrd v. State, 257 Ala. 100, 57 So.2d 388 (1952). It necessarily follows that in a case in which he does not even claim self-defense he should not be precluded from showing the absence of any one or more of the elements constituting each degree of homicide charged in the indictment, including particularly intention and malice. The question of the admissibility of evidence as to a previous difficulty with deceased or others in homicide cases usually arises in connection with claims of self-defense and is usually determinable by considerations relative to such a claim. But this is not always true. In Byrd v. State, supra, the court concluded that there was not sufficient evidence of self-defense to justify proof by defendant of prior difficulties. Even so, the court went on to state:

“So far we have been dealing with the relevancy of proof offered by the defendant of prior difficulties and of the wounds suffered by him with respect to self-defense, but this evidence must now be considered from a different viewpoint."

And thereafter the court held that the defendant should have been allowed to show physical and emotional injuries received by him in the prior difficulties on the issue of whether defendant was acting under the heat of passion at the time of the shooting by reason of continuing pain from injuries suffered by him.

In Johnson v. State, 265 Ala. 360, 91 So.2d 476 (1956), defendant contended that he was entitled to go into the details and circumstances of a difficulty between himself and a third party because the State had previously produced evidence of such difficulty. The court agreed with the contention of defendant that where the State introduces evidence of prior difficulty which is illegal, defendant can show all the particulars thereof to rebut the illegal evidence introduced by the State, but the court further held that the evidence as to the previous difficulty between defendant and a third person, that is such a difficulty between defendant and a third person that caused defendant to obtain the possession of a gun, did not constitute illegal evidence. The court said:

“This case, however, presents a peculiar situation. It is not testimony of a previous difficulty between Clarence Johnson and the decedent Homer Smith which is sought to be introduced, but details of a difficulty between Clarence Johnson and Jimmie Threadgill. Clarence Johnson was not being tried for any crime involving Jimmie Threadgill and in our judgment nothing detrimental to Clarence Johnson was brought out in connection with the previous difficulty with Jimmie Threadgill nor was any illegal evidence introduced. The proof introduced by the State explained why the defendant had the shotgun with him in that Clarence Johnson felt the need of having the shotgun to protect himself against the acts of Jimmie Threadgill. The allowance of such proof was proper. Rollings v. State, 160 Ala. 82, 49 So. 329. (Emphasis supplied)
“Ordinarily the details of a prior difficulty are not admissible beyond the proof of the prior difficulty and its gravity. Bryant v. State, 252 Ala. 153, 39 So.2d 657; Bowen v. State, 217 Ala. 574, 117 So. 204. The testimony of Clarence Johnson himself showed that he got his gun to protect himself against Jimmie Threadgill because of the previous difficulty. Beyond this the defendant could not have testified and did not testify with reference to the difficulty with Jimmie Threadgill. Beyond this there was no connection between the difficulty Clarence Johnson had with Homer Smith and the difficulty which he had with Jimmie Threadgill. It is settled that evidence is inadmissible to show a difficulty between the accused and a third person in no way connected with the victim or the offense. Wiggs v. State, 24 Ala. App. 22, 129 So. 706.” (Emphasis supplied) .

If defendant could have presented evidence that he had been shot or shot at by Abston, he should have been allowed to do so. Such evidence may not have been sufficient to have created a reasonable doubt in the minds of the jurors of the existence of intent or malice on the part of defendant, but it was of such a nature as to be calculated to have had an important bearing upon such issues. More so, perhaps, in this case than in many other cases, by reason of the singular circumstance of defendant’s having a shotgun at a birthday party, which itself constituted two strikes against him. This could not be satisfactorily explained under, the circumstances of this case on a theory that would justify his intentional shooting of the gun in order to injure or kill decedent or anyone on the porch or anyone in the house at the time the gun was discharged. Neither would his conduct in going for and returning with the gun have likely been justified in the minds of the jurors by what had happened inside the house with reference to his father and brother. On the other hand, a jury could have well found that, under all the circumstances that included particularly that of another gun being held and waved in the hands of another person who had shot defendant, he did not intend to shoot anyone on the porch of decedent’s house and that there was no malice of defendant directed at anyone in the discharge of the gun. Instead of the evidence being too remote, we are of the opinion that it could well have been the difference between a verdict of guilty of murder in the second degree and a guilty verdict of homicide in a lesser degree, or even a verdict of not guilty.

Appellant has made other insistences of error, but we are convinced that they are not well taken and that no prejudicial error was committed other than that which has been noted.

For the error pointed out, the judgment should be reversed and the cause remanded for another trial.

The foregoing opinion was prepared by Supernumerary Circuit Judge Leigh M. Clark, serving as a judge of this Court under Section 2 of Act No. 288 of July 7, 1945, as amended; his opinion is hereby adopted as that of the Court. The judgment below is hereby

Reversed and remanded.

All the Judges concur.


author: SHORES, Justice.

text:
    In re M. B. SASHINGTON v. STATE of Alabama. Ex parte STATE of Alabama ex rel. ATTY. GENERAL.
    SC 1564.
    Supreme Court of Alabama.
    Jan. 9, 1976.
    William J. Baxley, Atty. Gen., and William A. Davis, III, Asst. Atty. Gen., for petitioner, the State.
    No appearance for respondent.
   SHORES, Justice.

Petition of the State, by its Atty. Gen. for Certiorari to the Court of Criminal Appeals to review and revise the judgment and decision of that Court in Sashington v. State of Ala., 56 Ala.App. 205, 325 So. 2d 205.

Writ denied.

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