text:
    Joe R. JENKINS, Appellant, v. Patricia Sanders JENKINS, Appellee.
    No. 74-1211.
    District Court of Appeal of Florida, Fourth District.
    Feb. 6, 1976.

      Mary Cullom and C. J. Cullom, of Cul-lom & Cullom, Orlando, for appellant.
    Lee Jay Colling, of Colling, Latham, Stanton & Sanders, Orlando, for appellee.
   OWEN, Judge.

Three years after a final judgment of divorce was entered, the former wife filed her petition in the same cause seeking an order amending the final judgment relative to certain real property described therein. Denying the former husband’s motion to dismiss for lack of jurisdiction, the successor to the judge who had entered the original judgment entered an amended judgment without benefit of any evidence requiring the former husband (appellant herein) to convey the described real property to the former wife, failing which the amended judgment would act as such conveyance.

The issue presented is whether the trial court erred in entering the amended judgment; Appellee, apparently in tacit recognition of the fact that neither the petition to amend nor the amended judgment would meet the requirements of or otherwise qualify under either Rule 1.530 RCP or Rule 1.540 RCP, contends that both the petition and order were mis-labeled, and that they are actually cognizable under Rule 1.-570 RCP as a petition and order enforcing final judgment.

In February 1971 appellee filed her complaint for divorce in which she also sought alimony, attorney’s fees and a determination of her property rights in a certain house trailer. Appellant filed an answer in which he asserted that “the parties own a tract of land in Orange County, Florida, near Apopka, Florida, as tenants in common,” and in which he prayed that “in the event that a divorce is granted, the defendant claims his right, title and ownership in and to the realty . . apparently referring to the above-mentioned tract of land which was not otherwise described. The divorce case was heard before Circuit Court Judge George E. Adams and although the final judgment reflects that the court heard testimony of the parties “and the witnesses of plaintiff,” such testimony was not made a part of the record. The final judgment entered by Judge Adams contained in its findings the following:

“4. The real property described as:
East °f Southwest 14 of Southeast 14 °f Township 20 South, Range 27 East, Tract 11, Plat of W. P. KELLY,
in which defendant claimed an interest as a tenant in common was given as a bona fide and valid gift by defendant to plaintiff prior to the marriage of the parties.”

The decretal portion of the final judgment contained no reference to the described real property. The final judgment was entered June 21, 1971 and neither party filed petition for rehearing or took an appeal.

In August 1974, appellee filed her petition alleging in essence that the real property described in the final judgment had been found by Judge Adams to be the property of petitioner but that when she sought to sell the same a title insurance company required that she first obtain a quit-claim deed from the former husband and thus she wanted the final judgment amended so as to require him to execute and deliver such quit-claim deed conveying the described property or in the alternative, that the amended judgment act as such conveyance. As stated, this petition was heard by the successor to Judge Adams who without the benefit of any testimony, denied the former husband’s motion to dismiss the petition and enter the amended judgment.

We have recited above all pertinent portions of the final judgment. Obviously, upon the court’s finding that the described real property had been a gift from the former husband to the former wife prior to their marriage, it deemed there to be no necessity for the judgment to 'require performance of any specific act, as for example, for the execution and delivery by the former husband of a conveyance of the real property. If there had been such a necessity (as for example, if the record title to said property was vested either solely or partly in the husband’s name) the final judgment should have expressly required the husband to execute and deliver a conveyance of his interest in the property and the omission of such a requirement would have been, at most, a mistake or inadvertence correctable upon timely motion filed pursuant to Rule 1.540(b) RCP. The judgment as entered required nothing in reference to the real property, and hence there simply was nothing to be enforced under Rule 1.570 RCP.

If the petition was, as denominated, a motion to amend the final judgment, it should have been dismissed upon appellant’s motion. If it was, as now claimed, a motion to enforce the final judgment, it should have been denied as there was nothing in the final judgment relative to the real property which required enforcement. Accordingly, we reverse the order amending the final judgment and upon remand direct that appellee’s petition be dismissed without prejudice to appellee’s rights to seek such remedy as may be available to her to clear the title to the real property which she claims.

Reversed and remanded.

CROSS and DOWNEY, JJ., concur.

      . “Rule 1.570. Enforcement of Final Judgments

      Final process to enforce any judgment may be by execution or other appropriate process or proceedings if the judgment is solely for the payment of money. If the judgment is for the performance of any specific act, as for example, for the execution of a conveyance of land or the delivering of deeds or other documents, the judgment shall prescribe the time within which the act shall be done and upon affidavit that the judgment has not been complied with within the prescribed time, the clerk shall issue a writ of attachment against the delinquent party, from which he shall not be discharged except upon a full compliance with the judgment and the payment of all costs or upon a special order of the court enlarging the time for the performance thereof. If the delinquent party cannot be found, a writ of sequestration shall issue against his estate to compel obedience to the judgment. When a judgment is made for a conveyance, release or acquittance of land or any interest therein and the party against whom the judgment is entered does not comply therewith by the time prescribed, then such judgment shall be considered to have the same operation and effect as if the conveyance, release or acquittance had been executed conformably to it; notwithstanding any disability of such parties by infancy, lunacy, coverture or otherwise. If any other judgment, injunction or mandatory order for the specific performance of any act or contract is not complied with, the court may hold the disobedient party for contempt or may sequestrate his property or order that the act required be done, so far as practicable, by some other person appointed by the court at the cost of the disobedient party and the act, when so done, shall have like effect as if done by such party.”


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    John DONNELL, Appellant, v. The STATE of Florida, Appellee.
    No. 75-835.
    District Court of Appeal of Florida, Third District.
    Feb. 3, 1976.
    Phillip A. Hubbart, Public Defender, and Mark King Leban, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Ira M. Loewy, Asst. Atty. Gen., for appellee.
    Before HAVERFIELD and NATHAN, JJ„ and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

John Donnell, defendant in the trial court, was charged by information with uttering a forged instrument. Following a nonjury trial, the court found Donnell guilty, entered judgment and sentenced him to 18 months in the state penitentiary.

In this appeal, Donnell seeks review of his conviction and sentence. The sole point raised is that the evidence was not sufficient to support a finding of guilt of the offense of uttering a forged instrument, in that the state failed to present any evidence to show that Donnell knew the check to be false when he uttered it. The argument set forth for reversal has been carefully considered in the light of the record and briefs and we find that no reversible error has been shown. The record shows that the case was fully and fairly tried, that the judgment is supported by substantial, competent evidence and that the trial court did not commit reversible error. See Crum v. State, Fla.App.1965, 172 So.2d 24; Wetherington v. State, Fla.App.1972, 263 So.2d 294; Mills v. State, Fla.App.1973, 280 So.2d 35; Amato v. State, Fla.App.1974, 296 So.2d 609.

Affirmed.


author: PER CURIAM. RAWLS, Acting Chief Judge.

text:
    CITY OF TALLAHASSEE, a Municipal Corporation, and the Hartford Insurance Company, a Foreign Corporation, Petitioners, v. Roger Ferrell ELLIOTT, Administrator for the Estate of Roger Ferrell Elliott, Jr., Deceased, Respondent.
    No. X-308.
    District Court of Appeal of Florida, First District.
    Oct. 23, 1975.
    Rehearing Denied Feb. 20, 1976.

      Anne C. Booth and Edgar C. Booth, Hall & Booth, and Bryan W. Henry, Tallahassee, for petitioners.
    Murray M. Wadsworth and Cass D. Vick-ers, Thompson, Wadsworth & Messer, Tallahassee, for respondent.
   PER CURIAM.

Petition for Writ of Certiorari is denied. See Bray v. City of Winter Garden, 40 So.2d 459 (Fla.1949), and Hargrove v. Town of Cocoa Beach, 96 So.2d 130 (Fla.1957).

RAWLS, Acting C. J., McCORD, J., and SMITH, SAMUEL S., Associate Judge, concur.

On Petition for Rehearing

RAWLS, Acting Chief Judge.

The City of Tallahassee filed its petition for common law certiorari from an order denying its motion to dismiss Counts II and III of a second amended complaint. The two counts allege negligence by the city in maintaining a drainage ditch and culvert which allegedly resulted in the death of Roger Ferrell Elliott, Jr. We denied certiorari citing Bray v. City of Winter Garden, 40 So.2d 459 (Fla.1949), in which the Supreme Court held that the maintenance by a city of a drainage system is a corporate (proprietary) function and that a city is liable for its torts committed in the maintenance of said system.

The City of Tallahassee strenuously insists that this court’s opinion in Nobles v. City of Jacksonville (Nobles #2), which was filed after briefs and argument in the instant case, requires reversal. Unfortunately, our opinions in Nobles v. City of Jacksonville (Nobles #1) and Nobles #2 have been misinterpreted not only by the city but by our sister court, the Fourth District Court of Appeal, in Gordon v. City of West Palm Beach.

This court’s opinion in Nobles #1 was rendered on the issues pled and joined by the parties. There, plaintiff-appellant alleged negligence on the part of the city to which defendant-appellee city filed its denial. The trial court entered summary judgment in favor of appellee city, apparently on the premise that the city had no duty with reference to the maintenance of a bridge located in its city limits which had been constructed and maintained by the state. The issue of “governmental” or “proprietary” function was not raised by the parties. The author of this opinion (Rawls, J.) injected the issue of governmental immunity in Nobles #1 by stating in his dissent: “A municipality cannot be held liable in tort for breach of governmental duty over the public generally.” Upon reversal and remand, the trial court granted the city’s motion to amend its answer to assert the defense of governmental immunity. Thereafter, the trial court granted a directed verdict in favor of the city.

In Nobles #2, appellant primarily urged this court to adhere to the Hargrove doctrine without the limitation imposed by Modlin, In so doing, appellant necessarily conceded that the facts involved in Nobles constituted governmental functions as dis-' tinguished from proprietary functions, because the Modlin limitation relates solely to acts of a city in a governmental capacity, viz:

“In an effort to correct our error and the resulting confusion, we deem it advisable to attempt to define more clearly the boundary of remaining municipal tort immunity. As noted above, the Hargrove decision specifically reserved municipal tort immunity in the exercise of legislative, judicial, quási-legislative, and quasi-judicial functions.
“It is a well recognized principle of tort law that a fundamental element of actionable negligence is the existence of a duty owed by the person charged with negligence to the person injured. 23 Fla.Jur., ‘Negligence,’ Sec. 10. However, there is also a doctrine of respectable lineage and compelling logic that holds that this duty must be something more than the duty that a public officer owes to the public generally.”

Our opinion in Nobles #2 clearly pinpointed a conclusion necessitated by Modlin, supra.

To summarize, Nobles involved a bridge constructed, maintained and owned by the State of Florida which was situated within the limits of the City of Jacksonville. The duty imposed upon the city as to this bridge was clearly set out in Nobles #1; that is, a recitation of exerpts of a city ordinance directing its employee, the sheriff, to enforce the provisions of the ordinance. Like the building inspector in Modlin, supra, the sheriff owed a duty to the public generally. Thus, the Nobles #2 decision falls squarely within the rationale of Modlin.

We emphasize that this court did not hold in Nobles that the construction, maintenance and repair of streets are not the exercise of proprietary functions. The reason is that the City of Jacksonville, in Nobles, was not charged with the duty of the construction, maintenance or repair of a bridge owned by the State of Florida. Such was the undisputed duty imposed upon the state. Thus, the Fourth District Court of Appeal’s observation in Gordon, supra, that: “The District Court held as a matter of law the City of Jacksonville was not liable for negligence in maintaining a bridge with steel grating in the roadbed which when wet constituted a dangerous . . . .” is an incorrect interpretation of the facts involved in Nobles. We did not so hold.

The City of Tallahassee cites other cases involving drainage of sewage, which it maintains entitles it to the doctrine of sovereign immunity in the instant case. We find such cases inapplicable to the facts alleged herein. Once again and finally, we withdraw from injgcting this court into the trial stage of this action formally cognizable at law, and pursuant to Bray v. City of Winter Garden, supra, the petition for rehearing is denied.

MILLS and McCORD, JJ., concur.

      . Nobles v. City of Jacksonville, 316 So.2d 565 (1 Fla.App.1975).

      . Nobles v. City of Jacksonville, 265 So.2d 550 (1 Fla.App.1972).

      . Gordon v. City of West Palm Beach, 321 So.2d 78 (4 Fla.App.1975).

        . Hargrove v. Town of Cocoa Beach, 96 So. 2d 130 (Fla.1957).

      . Modlin v. City of Miami Beach, 201 So.2d 70 (Fla.1967).


author: DOWNEY, Judge.

text:
    Lula Mae ATKINS, Appellant, v. Harrison ATKINS, Appellee.
    No. 75-113.
    District Court of Appeal of Florida, Fourth District.
    Feb. 6, 1976.
    Harry D. Dennis, Jr., Pompano Beach, for appellant.
    William F. Mackey of Chesley V. Morton & Associates, Fort Lauderdale, for ap-pellee.
   DOWNEY, Judge.

This suit commenced as a dissolution of marriage proceeding. However, at trial it was determined that one of the parties had a living spouse from whom no divorce had been obtained. Accordingly, the trial court determined there was no marital union.

During the course of their relationship the parties took title to a certain parcel of real property in Broward County,, ostensibly as tenants by the entireties. In his complaint the appellee prayed for a conveyance of the absolute title by way of a special equity. The appellant also prayed for a special equity in said property and “in the alternative” for a partition. In the final judgment under review the trial court awarded appellant $450.00 as her interest in the property and directed her to execute a quit-claim deed to appellee.

The rule seems to be that if a conveyance of land to two or more persons is silent regarding the interest each is to take, the presumption is that their interests are equal. Loring v. Palmer, 118 U.S. 321, 341, 6 S.Ct. 1073, 1080, 30 L.Ed. 211 (1886).

It is our view that the evidence fails to support the award of $450.00 as appellant’s interest in the property. We therefore reverse the judgment under review and remand the cause for a new trial. Since appellant prayed for partition of the property, upon remand the court shall determine the interests of the parties in the property and partition it in accordance with Chapter 64, F.S.1975.

Reversed and remanded with directions.

WALDEN, C. J., and CROSS, J., concur.


author: PER 'CURIAM.

text:
    William M. BRYAN, Appellant, v. PENNSYLVANIA NATIONAL MUTUAL CASUALTY INSURANCE COMPANY, Appellee.
    No. 75-122.
    District Court of Appeal of Florida, Third District.
    May 16, 1975.
   PER 'CURIAM.

Appeal dismissed.


text:
    Lucy R. ADLER et al., Appellants, v. PILOT LIFE INSURANCE COMPANY, etc., Appellee.
    No. 75-453.
    District Court of Appeal of Florida, Third District.
    Dec. 23, 1975.
    Rehearing Denied Feb. 4, 1976.
   PER CURIAM.

Affirmed.


text:
    Anibal SIBAT, Petitioner, v. The STATE of Florida, Respondent.
    No. 75-2006.
    District Court of Appeal of Florida, Third District.
    Jan. 6, 1976.
   PER CURIAM.

Certiorari denied.


text:
    Ronald Lee McCUE, Petitioner, v. COUNTY OF DADE, State of Florida, Respondent.
    No. 75-1286.
    District Court of Appeal of Florida, Third District.
    Jan. 7, 1976.
   PER CURIAM.

Certiorari denied.


text:
    Freddie MATHIS et al., Appellants, v. The TRAVELERS INSURANCE COMPANY, Appellee.
    No. 75-681.
    District Court of Appeal of Florida, Third District.
    Jan. 9, 1976.
   PER CURIAM.

Appeal dismissed.


text:
    PRIME LAND DEVELOPMENT CORPORATION, a Florida Corporation, etc., et al., Appellants, v. CENTRAL BANK OF NORTH DADE, a Florida Corporation, Appellee.
    No. 75-1639.
    District Court of Appeal of Florida, Third District.
    Jan. 9, 1976.
   PER CURIAM.

Appeal dismissed.


text:
    In re the ESTATE of Vasco CARDINI, a/k/a Vasco A. Cardini, Deceased. John E. CARDINI, Executor, Appellant, v. Janina CARDINI, Widow, Appellee.
    No. 75-1828.
    District Court of Appeal of Florida, Third District.
    Jan. 13, 1976.
   PER CURIAM.

Appeal dismissed.


text:
    FIRST NATIONAL BANK OF HIALEAH, Appellant, v. UNITED STATES FIDELITY & GUARANTY COMPANY, Appellee.
    No. 75-255.
    District Court of Appeal of Florida, Third District.
    Jan. 13, 1976.
    Rehearing Denied Feb. 4, 1976.
   PER CURIAM.

Affirmed.


text:
    Victor H. POTAMKIN, Appellant, v. Marshall BERWICK et al., Appellees.
    Nos. 75-905, 75-906.
    District Court of Appeal of Florida, Third District.
    Jan. 13, 1976.
   PER CURIAM.

Affirmed.


text:
    PLAZA DEL PRADO CONDOMINIUM ASSOCIATION, INC., a Florida Corporation, Individually and as a class action Plaintiff on behalf of all members thereof, Appellants, v. DEL PRADO CORPORATION, a Florida Corporation, et al., Appellees.
    No. 75-541.
    District Court of Appeal of Florida, Third District.
    Jan. 13, 1976.
   PER CURIAM.

Affirmed.


text:
    Thomas J. NEVIEAU, Petitioner, v. TRAVELERS INSURANCE COMPANY, Respondent.
    No. 75-1994.
    District Court of Appeal of Florida, Third District.
    Jan. 13, 1976.
   PER CURIAM.

Certiorari dismissed.


text:
    TRANS-AMERICAN AUTO PARTS, d/b/a Four Wheel Parts Wholesalers, Appellant, v. David K. WHEELER and Aetna Insurance Company, Appellees.
    No. 75-358.
    District Court of Appeal of Florida, Third District.
    Jan. 13, 1976.
   PER CURIAM.

Affirmed.


text:
    John De BAUN, Appellant, v. Winifred J. De Baun MICHAEL, Appellee.
    Nos. 75-1778, 75-1779.
    District Court of Appeal of Florida, Second District.
    Jan. 14, 1976.
   Appeal dismissed.


text:
    WEEKI WACHEE WATER COMPANY, INC., a Florida nonprofit Corporation, Appellant, v. WEST HERNANDO COUNTY WATER AND SEWER DISTRICT, Appellee.
    No. 75-1254.
    District Court of Appeal of Florida, Second District.
    Jan. 16, 1976.
    Rehearing Denied Feb. 18, 1976.
   PER CURIAM.

Affirmed.


text:
    Nathan Garry LISS, Appellant, v. STATE of Florida, Appellee.
    No. 74-1684.
    District Court of Appeal of Florida, Fourth District.
    Jan. 16, 1976.
    Rehearing Denied Feb. 17, 1976.
   PER CURIAM.

Affirmed.


text:
    DANIA FILL AND SILICA SAND CORP., a Florida Corporation, and Helen L. Yelvington, Individually, Appellants, v. Edward J. STACK, as Sheriff of Broward County, Florida, Appellee.
    No. 76-119.
    District Court of Appeal of Florida, Fourth District.
    Jan. 20, 1976.
   Prohibition denied.


text:
    Irene MOORE, Appellant, v. The STATE of Florida, Appellee.
    No. 74-1724.
    District Court of Appeal of Florida, Third District.
    Jan. 20, 1976.
   PER CURIAM.

Affirmed.


text:
    TRAVELERS INSURANCE COMPANY and South Pacific Enterprises, Petitioners, v. Kelsey NUTTMAN, Respondent.
    No. 75-1691.
    District Court of Appeal of Florida, Fourth District.
    Jan. 20, 1976.
   Certiorari dismissed.


text:
    STATE FARM FIRE AND CASUALTY COMPANY, Appellant, v. Ruby HART, Appellee.
    No. 75-654.
    District Court of Appeal of Florida, Fourth District.
    Jan. 20, 1976.
   Appeal dismissed.


text:
    Joseph V. SILVIA and Doris M. Silvia, his wife, and Carpet Transport, Inc., Appellants, v. RYDER TRUCK RENTAL, INC., Appellee.
    No. 74-1731.
    District Court of Appeal of Florida, Third District.
    Jan. 20, 1976.
   PER CURIAM.

Affirmed.


text:
    Lawrence P. BASIK, Mancuso’s Deli, Inc., and Delaney’s Inc., Appellants, v. NORTH MARCO ISLAND UTILITY COMPANY, INC., Appellee.
    No. 75-663.
    District Court of Appeal of Florida, Second District.
    Jan. 21, 1976.
    Rehearing Denied Feb. 18, 1976.
   PER CURIAM.

Affirmed.


text:
    Howard S. BERMAN, Appellant, v. Joan DUANE and Thomas E. Duane, her husband, Appellees.
    No. 75-2292.
    District Court of Appeal of Florida, Fourth District.
    Jan. 22, 1976.


text:
    CITY OF WINTER PARK, a Municipal Corporation, Petitioner, v. Lester L. WOJICK, as Administrator of the Estate of Paul Leslie Wojick, Deceased, Respondent.
    No. 75-2203.
    District Court of Appeal of Florida, Fourth District.
    Jan. 22, 1976.
   Certiorari dismissed.


text:
    Naomi COLLIER, Appellant, v. John H. DEWELL, Appellee.
    No. 75-1015.
    District Court of Appeal of Florida, Second District.
    Jan. 23, 1976.
    Rehearing Denied Feb. 18, 1976.
   PER CURIAM.

Affirmed.


text:
    Earl Jerome JONES, Petitioner, v. Louie L. WAINWRIGHT, Secretary, Department of Offender Rehabilitation, Respondent.
    No. 75-1409.
    District Court of Appeal of Florida, Second District.
    Jan. 26, 1976.
   Habeas corpus denied.


text:
    Odis OWENS and Opel Owens, his wife, Appellants, v. Kathy OWENS, Appellee.
    No. 75-64.
    District Court of Appeal of Florida, Second District.
    Jan. 26, 1976.
   Appeal dismissed.


text:
    George R. ELLIS, Appellant, v. STATE of Florida, Appellee.
    No. 74-918.
    District Court of Appeal of Florida, Second District.
    Jan. 28, 1976.
   PER CURIAM.

Affirmed.


text:
    Charles JOHNSON, Appellant, v. STATE of Florida, Appellee. Richard LLOYD, Appellant, v. STATE of Florida, Appellee.
    Nos. 75-523, 75-478.
    District Court of Appeal of Florida, Second District.
    Jan. 28, 1976.
   PER CURIAM.

Affirmed.


text:
    Kindness McGREGOR, Appellant, v. Emily R. SMITH and Francis G. Smith, and also all other persons unknown claiming any right, title, estate, lien or interest in the real property described in Plaintiff’s Complaint adverse to Plaintiff’s ownership, or any cloud upon Plaintiff’s title thereto, Appellees.
    No. 74-977.
    District Court of Appeal of Florida, Second District.
    Jan. 28, 1976.
   PER CURIAM.

Affirmed.


text:
    Michael Wayne BELL, as Personal Representative and Administrator of the Estate of Dorothy Virginia Bell, Appellant, v. Ronald David WELLS and State Farm Insurance Company, Appellees.
    No. 75-326.
    District Court of Appeal of Florida, Second District.
    Jan. 28, 1976.
   PER CURIAM.

Affirmed.


text:
    Norman C. CARR, Petitioner, v. FLORIDA DEPARTMENT OF COMMERCE, INDUSTRIAL RELATIONS COMMISSION, and Searcher’s Detective Agency, Inc., Respondents.
    No. 75-471.
    District Court of Appeal of Florida, Second District.
    Jan. 28, 1976.
   PER CURIAM.

Certiorari denied.


text:
    MOBILE LAND & TITLE COMPANY, a Florida Corporation, Appellant, v. JIMMY COCHRAN EQUIPMENT COMPANY, INC., a Florida Corporation, Appellee.
    No. 75-622.
    District Court of Appeal of Florida, Second District.
    Jan. 28, 1976.
   PER CURIAM.

Affirmed.


text:
    STATE of Florida, Appellant, v. Ronald B. LEITER, Appellee.
    No. 75-115.
    District Court of Appeal of Florida, Second District.
    Jan. 28, 1976.
   PER CURIAM.

Affirmed.


text:
    David Earl TREAT, Appellant, v. STATE of Florida, Appellee.
    No. 74-1331.
    District Court of Appeal of Florida, Second District.
    Jan. 28, 1976.
    Rehearing Denied Feb. 20, 1976.
   PER CURIAM.

Affirmed.


text:
    FUTURAMA CARPETS, INC., Appellant, v. John BOWLES et al., as Trustees for Cameron-Brown Investment Group, a Massachusetts Business Trust, Appellees.
    No. 75-1650.
    District Court of Appeal of Florida, Third District.
    Jan. 29, 1976.
   PER CURIAM.

Appeal dismissed.


text:
    Rowena GRAY, Appellant, v. ST. PAUL HOSPITAL & CASUALTY COMPANY, a Foreign Corporation, Appellee.
    No. 75-1894.
    District Court of Appeal of Florida, Third District.
    Jan. 29, 1976.
   PER CURIAM.

Appeal dismissed.


text:
    Gloria HAGEY et al., Appellants, v. HEALTH AND REHABILITATIVE SERVICES et al., Appellees.
    No. 75-1972.
    District Court of Appeal of Florida, Third District.
    Jan. 29, 1976.
   PER CURIAM.

Appeal dismissed.


text:
    Randy JENNINGS, Appellant, v. STATE of Florida, Appellee.
    No. Y-352.
    District Court of Appeal of Florida, First District.
    Jan. 29, 1976.
   PER CURIAM.

Affirmed.


text:
    Robert JOENSEN, Appellant, v. The STATE of Florida, Appellee.
    No. 74-652.
    District Court of Appeal of Florida, Third District.
    Jan. 29, 1976.
   PER CURIAM.

Appeal dismissed.


text:
    Robert Joseph McBRIDE, Appellant, v. STATE of Florida, Appellee.
    No. Z-236.
    District Court of Appeal of Florida, First District.
    Jan. 29, 1976.
   PER CURIAM.

Affirmed.


text:
    Felix PEREIRA and Herenia Pereira, his wife, Appellants, v. 1178 DEVELOPMENT CORPORATION and Esther Brenner, Appellees.
    No. 75-1804.
    District Court of Appeal of Florida, Third District.
    Jan. 29, 1976.
   PER CURIAM.

Appeal dismissed.


text:
    James M. WHITTAKER, Appellant, v. Evelyn Ann WHITTAKER, Appellee.
    No. Y-283.
    District Court of Appeal of Florida, First District.
    Jan. 29, 1976.
   PER CURIAM.

Affirmed.


text:
    Patricia Jane ALLEN, Appellant, v. Audrey C. LINEBERGER, Appellee.
    No. Z-75.
    District Court of Appeal of Florida, First District.
    Jan. 30, 1976.
   PER CURIAM.

Affirmed.


text:
    Robert J. ARACRI, Appellant, v. STATE of Florida, Appellee.
    No. 74-1720.
    District Court of Appeal of Florida, Fourth District.
    Jan. 30, 1976.
   PER CURIAM.

Affirmed.


text:
    Harold S. BAKER et al., Appellants, v. HERITAGE CONSTRUCTION & INVESTMENT CORPORATION et al., Appellees.
    No. 75-883.
    District Court of Appeal of Florida, Second District.
    Jan. 30, 1976.
   PER CURIAM.

Affirmed.


text:
    Willie BARR, Appellant, v. STATE of Florida, Appellee.
    No. 75-1056.
    District Court of Appeal of Florida, Fourth District.
    Jan. 30, 1976.
   PER CURIAM.

Affirmed.


text:
    Johnnie Lee BROWN, Appellant, v. STATE of Florida, Appellee.
    No. 75-987.
    District Court of Appeal of Florida, Second District.
    Jan. 30, 1976.
   PER CURIAM.

Affirmed.


text:
    George Wright BYRD, Appellant, v. STATE of Florida, Appellee.
    No. 75-239.
    District Court of Appeal of Florida, Second District.
    Jan. 30, 1976.
   PER CURIAM.

Affirmed.


text:
    Charles CONNELLY, Appellant, v. STATE of Florida, Appellee,
    No. 75-845.
    District Court of Appeal of Florida, Second District.
    Jan. 30, 1976.
   PER CURIAM.

Affirmed.


text:
    Gavin K. LETTS, Appellant, v. GULFSTREAM PLAZA, INC., et al., Appellees.
    No. 75-2083.
    District Court of Appeal of Florida, Fourth District.
    Jan. 30, 1976.
   PER CURIAM.

Affirmed.


text:
    Hugh S. GLICKSTEIN, P.A., Petitioner, v. INDUSTRIAL RELATIONS COMMISSION and Crystal Holjes, Respondents.
    No. 75-1170.
    District Court of Appeal of Florida, Fourth District.
    Jan. 30, 1976.
   PER CURIAM.

Certiorari denied.


text:
    Frederick HAMILTON, Appellant, v. STATE of Florida, Appellee. Robert J. WILLIAMS, Appellant, v. STATE of Florida, Appellee. William STORY, Appellant, v. STATE of Florida, Appellee.
    Nos. 75-546, 75-545 and 75-560.
    District Court of Appeal of Florida, Second District.
    Jan. 30, 1976.
   PER CURIAM.

Affirmed.


text:
    Horace Nathaniel JOLLY, Appellant, v. STATE of Florida, Appellee.
    No. 74-756.
    District Court of Appeal of Florida, Second District.
    Jan. 30, 1976.
   PER CURIAM.

Affirmed.


text:
    Edward J. CREIGHTON, Appellant, v. STATE of Florida, Appellee.
    No. 75-481.
    District Court of Appeal of Florida, Second District.
    Jan. 30, 1976.
   PER CURIAM.

Affirmed.


text:
    J. T. LANE, Appellant, v. STATE of Florida, Appellee.
    No. 75-801.
    District Court of Appeal of Florida, Second District.
    Jan. 30, 1976.
   PER CURIAM.

Affirmed.


text:
    Irma LEOPOLD, Appellant, v. RICHARD BERTRAM & CO. et al., Appellees.
    No. 75-2025.
    District Court of Appeal of Florida, Third District.
    Jan. 30, 1976.
   PER CURIAM.

Appeal dismissed.


text:
    In re the ESTATE of Katherine MASSIMI, Deceased.
    No. 75-1789.
    District Court of Appeal of Florida, Third District.
    Jan. 30, 1976.
   PER CURIAM.

Appeal dismissed.


text:
    Robert Daniel MILTON, Appellant, v. STATE of Florida, Appellee.
    No. 74-637.
    District Court of Appeal of Florida, Second District.
    Jan. 30, 1976.
   PER CURIAM.

Affirmed.


text:
    Wallace L. MINTO, Appellant, v. Samuel W. HEISCHMAN, Appellee.
    No. 75-200.
    District Court of Appeal of Florida, Second District.
    Jan. 30, 1976.
   PER CURIAM.

Affirmed.


text:
    Wendell Bruce MOZERT, Appellant, v. Jean V. MOZERT, Appellee.
    No. Y-487.
    District Court of Appeal of Florida, First District.
    Jan. 30, 1976.
   PER CURIAM.

Affirmed.


text:
    Stanley C. PASSALOUKAS, Appellant, v. STATE of Florida, Appellee.
    No. 75-654.
    District Court of Appeal of Florida, Second District.
    Jan. 30, 1976.
   PER CURIAM.

Affirmed.


text:
    RAISCO, INC., a Florida Corporation d/b/a Say Service Company, Appellant, v. Sam BURSTYN d/b/a Ritz Plaza Hotel, Appellee.
    No. 75-1651.
    District Court of Appeal of Florida, Third District.
    Jan. 30, 1976.
   PER CURIAM.

Appeal dismissed.


text:
    John A. RHOADES, Jr., Appellant, v. Anita L. RHOADES, Appellee.
    No. 75-839.
    District Court of Appeal of Florida, Second District.
    Jan. 30, 1976.
   PER CURIAM.

Affirmed.


text:
    Cindra Sue RICH, Appellant, v. Roger Dale NELSON et al., Appellees.
    No. Y-439.
    District Court of Appeal of Florida, First District.
    Jan. 30, 1976.
   PER CURIAM.

Affirmed.


text:
    George R. SCOTT, individually and as father and next friend of Douglas Wright Scott and Wendy Kathleen Scott, minors, Appellants, v. COLUMBUS MUTUAL LIFE INSURANCE COMPANY, Appellee.
    No. 75-626.
    District Court of Appeal of Florida, Second District.
    Jan. 30, 1976.
    Rehearing Denied Feb. 13, 1976.
   PER CURIAM.

Affirmed.


text:
    Colon H. RUSSELL, Appellant, v. STATE of Florida, Appellee.
    No. X-226.
    District Court of Appeal of Florida, First District.
    Jan. 30, 1976.
   PER CURIAM.

Affirmed.


text:
    Edwin L. SHIELDS, Appellant, v. STATE of Florida, Appellee.
    No. 75-853.
    District Court of Appeal of Florida, Second District.
    Jan. 30, 1976.
   PER CURIAM.

Affirmed.


text:
    STATE of Florida, Appellant, v. James D. BARNES, Appellee.
    No. 75-959.
    District Court of Appeal of Florida, Second District.
    Jan. 30, 1976.
   PER CURIAM.

Affirmed.


text:
    STATE of Florida, Appellant, v. William R. OMASTA, Jr., Appellee.
    No. 75-836.
    District Court of Appeal of Florida, Second District.
    Jan. 30, 1976.
    Rehearing Denied Feb. 18, 1976.
   PER CURIAM.

Affirmed.


text:
    Lewis Marion WHITSON, Petitioner, v. STATE of Florida, Respondent.
    No. 75-1775.
    District Court of Appeal of Florida, Fourth District.
    Jan. 30, 1976.
   PER CURIAM.

Certiorari denied.


text:
    Darrell Wayne WILSON, Appellant, v. STATE of Florida, Appellee.
    No. 75-447.
    District Court of Appeal of Florida, Fourth District.
    Jan. 30, 1976.
   PER CURIAM.

Affirmed.


text:
    WINN DIXIE STORES, INC., a Florida Corporation, Appellant, v. Henry SELBEE, Appellee.
    No. Y-492.
    District Court of Appeal of Florida, First District.
    Jan. 30, 1976.
   PER CURIAM.

Affirmed.


text:
    Gayle A. WOODS, Appellant, v. Roger Guy HOLSTEIN et al., Appellees.
    No. 75-537.
    District Court of Appeal of Florida, Fourth District.
    Jan. 30, 1976.
   PER CURIAM.

Affirmed.


text:
    Clyde HART, Appellant, v. Raymon F. TUCKER, Appellee.
    No. Z-479.
    District Court of Appeal of Florida, First District.
    Feb. 3, 1976.
   PER CURIAM.

Interlocutory appeal dismissed.


text:
    Walter Anthony HOLTON, Appellant, v. STATE of Florida, Appellee.
    No. Z-35.
    District Court of Appeal of Florida, First District.
    Feb. 3, 1976.
   PER CURIAM.

Affirmed.


text:
    John E. KING and J. J. Hickson, Appellants, v. STATE of Florida, Appellee.
    Nos. Y-316, Y-317.
    District Court of Appeal of Florida, First District.
    Feb. 3, 1976.
   PER CURIAM.

Affirmed.


text:
    STATE of Florida, Appellant, v. Lawrence GREEN, Appellee.
    No. Y-480.
    District Court of Appeal of Florida, First District.
    Feb. 3, 1976.
   PER CURIAM.

Affirmed.


text:
    AMERICAN MOTORISTS INSURANCE COMPANY, Appellant, v. EXCELSIOR INSURANCE COMPANY, a corporation, Appellee.
    No. 75-997.
    District Court of Appeal of Florida, Second District.
    Feb. 4, 1976.
   PER CURIAM.

Affirmed.


text:
    Richard A. BOKOR, Appellant, v. GENERAL TELEPHONE COMPANY OF FLORIDA, Appellee.
    No. 75-635.
    District Court of Appeal of Florida, Second District.
    Feb. 4, 1976.
   PER CURIAM.

Affirmed.


text:
    Charles Clayton DAVENPORT, Appellant, v. STATE of Florida, Appellee.
    No. 75-173.
    District Court of Appeal of Florida, Second District.
    Feb. 4, 1976.
   PER CURIAM.

Affirmed.


text:
    FLORIDA FARM BUREAU MUTUAL INSURANCE COMPANY and Southern Farm Bureau Casualty Insurance Company, Appellants, v. Marvin R. VOIGT and Doris Voigt, Appellees.
    No. 75-771.
    District Court of Appeal of Florida, Second District.
    Feb. 4, 1976.
   PER CURIAM.

Affirmed.


text:
    Waclav James Constantine JAGIELLA, a/k/a Waclav J. Jagiella, Appellant, v. Edward J. GEOGHEGAN, Appellee.
    No. 75-9.
    District Court of Appeal of Florida, Second District.
    Feb. 4, 1976.
   PER CURIAM.

Affirmed.


text:
    David JOSEPHSON and Bernard Schwartz, d/b/a Bomark International, a partnership, Appellants, v. SUNDAY IMPORT CORP., a Florida Corporation, Appellee.
    No. 75-1833.
    District Court of Appeal of Florida, Third District.
    Feb. 4, 1976.
   PER CURIAM.

Appeal dismissed.


author: PER CURIAM;

text:
    SHELBY MUTUAL INSURANCE COMPANY OF SHELBY, OHIO, Appellant, v. Henry FENSTER, d/b/a Cranbrook Club, Ltd., Appellee.
    No. 76-66.
    District Court of Appeal of Florida, Third District.
    Feb. 4, 1976.
   PER CURIAM;

Appeal dismissed.


text:
    Reuben RUSH, Appellant, v. STATE of Florida, Appellee.
    No. 75-702.
    District Court of Appeal of Florida, Second District.
    Feb. 4, 1976.
   PER CURIAM.

Affirmed.


text:
    Chauncie Joseph LUCKE, Appellant, v. William H. DAVIS et al., Appellees.
    No. 75-889.
    District Court of Appeal of Florida, Second District.
    Feb. 4, 1976.
   PER CURIAM.

Affirmed.


text:
    Beryl BROCK, Appellant, v. John B. BROCK, Appellee.
    No. Y-125.
    District Court of Appeal of Florida, First District.
    Feb. 5, 1976.
   PER CURIAM.

Affirmed.


text:
    Charles Stephen ONOFRIO, Appellant, v. The STATE of Florida, Appellee.
    Nos. 76-123, 76-126.
    District Court of Appeal of Florida, Third District.
    Feb. 5, 1976.
   PER CURIAM.

Appeals dismissed.


text:
    Albert SALTER, Appellant, v. STATE of Florida, Appellee.
    No. Y-485.
    District Court of Appeal of Florida, First District.
    Feb. 5, 1976.
   PER CURIAM.

Affirmed.


text:
    The STATE of Florida, Appellant, v. Daniel ANDERSON, Appellee.
    No. 75-2009.
    District Court of Appeal of Florida, Third District.
    Feb. 5, 1976.
   PER CURIAM.

Appeal dismissed.


author: EMBRY, Justice.

text:
    ALABAMA PUBLIC SERVICE COMMISSION et al. v. COOPER TRANSFER COMPANY, INC., a corporation, et al.
    SC 1173.
    Supreme Court of Alabama.
    Dec. 18, 1975.
    Rehearing Denied Feb. 5, 1976.
    Carl L. Evans, Montgomery, for Alabama Public Service Commission.
    Charles A. Powell, III, Birmingham, for Baggett Transportation Co.
    Maurice F. Bishop and Gerald D. Col-vin, Jr., Birmingham, for Floyd & Beasley Transfer Co., Inc., Bowman Transportation, Inc., Georgia-Florida-Alabama Transportation Co., Hiller Truck Lines, Inc., North Alabama Express, Inc. and Bee-Line Express.
    R. S. Richard, Montgomery, for Ross Neely Express, Inc., Birmingham-Nashville Express, Inc., and Hornady Bros. Truck Line.
    Samuel Kaufman, Montgomery, for Trustee of A-OK Motor Lines, Inc.
    Euel A. Screws, Jr., Montgomery, for Mason and Dixon Lines, Inc.
    Robert C. Black, Montgomery, for Reliable Truck Lines, Inc. and Gordons Transports, Inc.
    J. Douglas Harris, Montgomery, for Cooper Transfer Co., Inc.
   EMBRY, Justice.

Appeal from judgment of the Circuit Court of Covington County reversing an order of the Alabama Public Service Commission (APSC). That order of APSC denied approval of the transfer of the rights under the intrastate Certificate of Authority of A-OK Motor Lines, Inc., a bankrupt carrier of freight by motor truck. The applicants seeking approval of the transfer of A-OK’s authority were the Trustee In Bankruptcy of A-OK Motor Lines, The Mason and Dixon Lines, Inc., Cooper Transfer Company, Inc., Gordons Transports, Inc., and Reliable Truck Lines, Inc. Mason and Dixon sought approval to purchase A-OK’s regular route authority. Reliable Cooper and Gordons each sought approval to purchase a portion of A-OK’s irregular route authority.

The applications for approval of the sale of A-OK’s authority were protested by eleven carriers: Ross Nelly Express, Inc., Birmingham-Nashville Express, Inc., Central Motor Express, Hornady Brothers' Truck Line, Floyd & Beasley Transfer Co., Inc., Bowman Transportation, Inc., Georgia-Florida-Alabama Transportation Co., Inc., Hiller Truck Lines, Inc., North Alabama Express, Inc., Bee Line Express, and Baggett Transportation Company.

Following a consolidated hearing, APSC denied approval of the transfer applications as not consistent with the public interest. See Code of Ala., Tit. 48, § 301(15). The applicants perfected an appeal to the Circuit Court of Covington County. That court found that APSC erred to the prejudice of applicants’ substantial rights in its application of law to the facts and the findings of APSC were not based on substantial evidence. Accordingly, the court entered its judgment setting aside the order of the Commission and remanding the case to APSC with directions that the Commission grant approval of the applications for sale and transfer of A-OK’s authority. The court further ordered that costs be. taxed against the protestants. We reverse and remand with directions.

The following definitions may be helpful:

ROUTE: Particular road or highway, or series of roads or highways, over which a carrier is authorized by APSC to operate its vehicles between terminal points.

REGULAR ROUTE AUTHORITY: Authority to carry goods in a scheduled operation over a restricted and defined route.

IRREGULAR ROUTE AUTHORITY: Authority to carry goods in an unscheduled operation within a restricted territory but wholly unrestricted as to route. Carriage under radial authority means carriage to or from a base point to or from any point in the restricted territory. Non radial authority means carriage from or to any point in the restricted area without reference to the base point.

TACKING: Operation by a carrier between two or more of its regular routes or between irregular and regular routes in order to reach a point which could not legally be served by operation over any single irregular or regular route or combination of regular routes. It is the joinder of separate grants of authority at a point common to both.

POINTS: Those locations a carrier is authorized to carry goods to or from.

AUTHORITY: The grant of rights to carry goods between points or within a restricted area.

The facts: During 1969 A-OK began experiencing severe financial difficulty with a resultant decline in the quality of service. On 17 November 1970, A-OK was declared bankrupt. The Trustee In Bankruptcy did not continue A-OK’s operations as a carrier. After marshalling the assets of A-OK, the Trustee determined that its most valuable asset was the certificate of authority for regular and irregular intrastate routes in Alabama. The Trustee invited bids from interested carriers to purchase A-OK’s certificate. The Trustee selected a group of the highest bidders and entered into further negotiations with them. The result of these negotiations were separate contracts with the four applicants to purchase the rights of A-OK under its certificate as described before. The contracts were conditioned upon APSC approval of the sale.

The pertinent portion of the APSC’s order which denied approval is as follows:

“A-OK ceased operations contemporaneously with its bankruptcy and, while he may have had the authority to continue or re-open operations under the A-OK certificate, the Trustee in Bankruptcy did not do so. Thus, at the time of the hearing, there had been no service rendered under the A-OK authority in over 16 months and it is now almost two years that the rights sought to be transferred have been inactive. There was also evidence to the effect that from 1969 to actual bankruptcy that the operations of A-OK were declining and at times were sporadic.

“While the applicants sponsored several shipper witnesses, it is abundantly clear from the record before us, and we find as a fact that during this extended hiatus in operations, the protestants have successfully filled the void created by the demise of A-OK. For example, the protestant Hor-nady Brothers, subsequent to the A-OK bankruptcy, came before this Commission seeking to obtain authority to operate between several points formerly served by A-OK. That application was not opposed by the Trustee in Bankruptcy for A-OK, and the evidence presented to this Commission in that proceeding showed that the public convenience and necessity required the granting of the authority sought by protestant Hornady (see Certificate No. 647). If these sales and transfers are approved as sought, from the evidence it appears that the protestant Hornady Brothers could be put out of business. As another example, we note that one of the witnesses offered by the applicants, Roy Nelson, President of Towns Express, testified that his small cartage operation would be destroyed by the introduction of the applicant Gordons into the area which he services whereas he could compete successfully with A-OK. Not only has the void been filled, it is crystal clear, and we find as a fact, that the various protestants are rendering prompt, efficient service to that portion of the shipping public formerly served by AOK. The record further establishes that the quality of service now being rendered in the areas formerly served by A-OK is better than that provided by A-OK in the last year of its existence. While several of the witnesses sponsored by the applicants indicated that they would like to have an additional carrier available to them, none of them were without reasonable service. Thus, if this were a case of determining whether to initially grant a new authority there would be no question but that it should be denied. We are, however, dealing with a transfer case governed by Section 301(15) and our determination therefore must be on the basis of whether the transfer is ‘consistent with the public interest.’

“It can be argued that we could, on the basis of substantial authorities, find that these rights are dormant and not available for transfer in any event. We are mindful of the large number of creditors who would be adversely affected by such a ruling. If these rights are again offered for sale in a form consistent with the spirit of this order and the public interest, and if such sales are approved by this Commission, a substantial sum would thereby be realized by the creditors of A-OK from such sale. A number of the major protestants stated, on the record, that they would not object to the transfer of all of the AOK authorities to one purchaser, or to the transfer of the A-OK irregular route authorities to one transferee and its regular route authorities to another. It is to be noted that the Trustee in Bankruptcy testified that the authorities sought to be transferred could be transferred as suggested by some of the protestants at a minimal differential to the creditors. While we are neither unmindful nor unsympathetic with the expressed interest of the Trustee to maximize the return to the creditors, we are, in this proceeding, charged with the duty of protecting the interests of the public, including the continuing shipping needs of these creditors, the carriers now serving them and the public at large.

“There are a number of reasons why we find the proposed transfers would not be consistent with the public interest, but chief among them is the fact that the transfers as proposed, if approved, would result in four distinct new operations replacing one arguably dormant operation with the injection of four vigorously competitive carriers into markets adequately served by protestants.

“The record establishes, and we so find, that when the proposed division of this authority is considered in conjunction with the authorities presently held by the applicants, and the tacking that would be possible, we are not being asked to approve the revival of the A-OK’s rights but to approve a major readjustment of the transportation industry of Alabama. Based on the record before us, we find that the applicants have failed to establish that it is in the public interest to approve the transfers as proposed. These applications have been presented as a ‘package’ and as we understand the applications, we must approve or disapprove of the transfers as a group.

“The record is clear, and we find that the granting of the applications would tend to seriously impair the ability of the carriers presently serving the former A-OK areas to continue to render satisfactory service. The exhibits and testimony offered by protestants, and the testimony elicited on cross-examination of some carrier witnesses discloses that while the intrastate traffic here involved is not the primary concern to the applicants the probably (sic) diversion of a portion of that traffic would be detrimental to the protestants and in turn the public interest in a sound transportation system. This is not to say that we would deny or approve the transfer of these rights in toto to a single applicant, but that case is not before us. Taking into consideration the full import of splitting this certificate into four certificates and the duplication of authorities and points that would result from the granting of the transfers as proposed, we are compelled to find that the applications are due to be denied as not being consistent with the public interest.”

The issues for decision are: (1) Were the applications a “package deal" which APSC had to accept or reject in its entirety? (2) Were the findings of fact in the order of APSC contrary to the substantial weight of the evidence, or did APSC err to the prejudice of the applicants’ substantial rights in its application of law to the facts.

Before turning to the issues, we note that our standards for review of an order of the APSC are well settled. See State v. Alabama Public Service Commission, 293 Ala. 533, 307 So.2d 521 (1975), and cases cited therein. Succintly stated, those standards are: an order of APSC is reviewed with a presumption that it is pri-ma facie just and reasonable; will not be overturned unless based upon

findings of fact contrary to the substantial weight of the evidence, or unless it is shown that APSC erred to the prejudice of the contesting parties substantial rights in its application of the law to the facts.

Presumptions are indulged in favor of the orders of APSC because the legislature has committed to APSC matters of vast public interest requiring its special administrative expertise. See Fraternal Order of Police, Strawberry Lodge # 40 v. Entre kin, 294 Ala. 201, 314 So.2d 663 (1975). Therefore we review the Commission’s order as though it had been appealed directly to this court, and do not review the judgment of the Circuit Court with any presumption of correctness. Alabama Gas Corporation v. Wallace, 293 Ala. 594, 308 So.2d 674 (1975). We are fully committed to the propositions that the courts of this State must not substitute their own judgments or findings of fact for the judgment of the Commission.

Issue (1): A “Package Deal?”

The Commission found that the applications were presented as a “package” which it had to either approve or disapprove in its entirety.

The contentions of the various parties to this litigation are found in six briefs and three appendices to one of those briefs, containing an aggregate of three hundred pages. Much of the argument of each of the parties litigant is misdirected from the key issue which, simply stated, is: was there “substantial” evidence when considered most favorable to upholding the Order of APSC tends to support the action of APSC reflected in that Order?

All applicants contend the Commission should have considered each of their applications separately. Applicants point out that each sought approval to purchase parts of the rights under the Certificate Of Authority of A-OK based on a separate contract made with the Trustee In Bankruptcy. Applicants also note that each application was treated separately although consolidated for hearing.

In separate brief applicant Mason and Dixon contends the Commission should have given completely separate consideration to its application and approved same because: (1) Mason ánd Dixon sought to purchase all of A-OK’s regular route authority, (2) The Commission order expressly stated it would approve transfer of the regular route authority to one carrier, (3) Protestants admitted they would not protest transfer of the regular route authority to one carrier.

The Order of the Commission is supported by substantial evidence in the record. The record has been carefully examined. It consists of 2,109 pages, in 12 volumes, having a weight of 59 pounds avoirdupois. It shows the four separate contracts were the result of a single negotiation with the Trustee In Bankruptcy of A-OK. The Trustee’s testimony indicates the decision to contract with the four carriers was arrived at only after he considered the total effect of the four contracts on the Alabama Transportation Industry. The record also shows the Trustee entered into those contracts based on his view that the agreed division of A-OK’s rights would be acceptable to APSC. Moreover, while the Commission indicated it would approve transfer of the regular route authority to one carrier, it did not indicate it would approve transfer of such authority to Mason and Dixon. There was no prejudice to Mason and Dixon nor any other applicant. Reversible error cannot be predicated upon the Commission’s judgment to consider the applications as a “package.”

Issue (2) : Substantial Weight of the Evidence

Applicants argue the Commission’s decision finding the proposed transfer of authority not to be in the public interest is not supported by the substantial weight of the evidence. Applicants contend the record shows only that protestants fear new competition and possible diversion of intrastate traffic. This fear, applicants assert, is legally insufficient to support a finding that approval of the applications is not in the public interest. See Alabama Public Service Commission v. Chem-Haulers, Inc., 293 Ala. 677, 309 So.2d 453 (1975). Applicants further note that although the public interest test includes consideration of the effect of new competition on existing carriers, nevertheless the record here conclusively demonstrates that any competitive effect that might result from approval of the applications is so negligible that no protestant could be harmed.

These arguments take a very narrow view of a multifaceted Commission order. That order affirmatively shows that disapproval of the applications was not based solely on findings of diversion or competitive effect. The Commission found that approval of the applications would result in a major restructuring of Alabama’s Transportation Industry. This finding was based on considerations of diversion, competitive effect, and an implicit factor; dividing A-OK’s authority under its certificate in the manner requested would result in applicant carriers being allowed to dramatically increase the areas those carriers could serve directly or indirectly. There is substantial evidence in the record of the proceedings before the Commission which supports the finding that such a restructuring would occur. The Commission’s order indicates that various factors, including creditors’ interests, Floyd & Beasley Transfer Co., Inc. v. Alabama Public Service Commission, 276 Ala. 130, 159 So.2d 833 (1963), entered into its judgment that the proposed transfers would not be in the public interest. On this record we cannot say the decision of the Commission is not supported by substantial evidence or that the Commission erred to the prejudice of the applicants’ substantial rights when it decided the proposed transfers would not be in the public interest.

The judgment of the Circuit Court of Covington County is reversed. We remand with directions that an order affirming the order of the Alabama Public Service Commission and allowing costs to protestants be entered.

Reversed and remanded with directions.

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


author: MERRILL, Justice.

text:
    Robert James BARREN v. NATIONAL GYPSUM COMPANY.
    SC 1479.
    Supreme Court of Alabama.
    Jan. 22, 1976.
    Frankie Fields Smith, Mobile, for appellant.
    Brock B. Gordon, Mobile, for appellee.
   MERRILL, Justice.

The identical question on the same facts presented in Hayes v. Alabama Dry Docks and Shipbuilding Company, 295 Ala. 216, 326 So.2d 289, this day decided, is raised on this appeal. The trial court correctly dismissed the complaint in this case as it did in Hayes, supra, and on the authority of Hayes, the judgment is affirmed.

Affirmed.

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


text:
    Arthur B. HAYES v. ALABAMA DRY DOCKS AND SHIPBUILDING CO.
    SC 1480.
    Supreme Court of Alabama.
    Jan. 22, 1976.
    Frankie Fields Smith, Mobile, for appellant.
    Brock B. Gordon, Mobile, for appellee.
   MERRILL, Justice.

Plaintiff filed a complaint alleging his wrongful discharge by defendant on March 10, 1975. Defendant filed a motion to dismiss with prejudice on March 27. The motion was granted June 17 after .argument of counsel. A motion to reconsider was made on June 23, and after oral arguments, denied on August 1. We affirm.

The only theory for recovery set out in the complaint was the alleged wrongful, discharge from employment. Attached to and made a part of the complaint was a labor agreement between plaintiff’s national labor union and defendant, a company engaged in interstate commerce. The labor agreement provides for binding arbitration on the question of discharge.

The primary ground of relief sought m the complaint is specific performance, and incidental relief by way of damages is claimed. The trial court gave no written reason for granting the motion to dismiss, but plaintiff argues that it was because the single ground of defendant’s motion was that the complaint * * fails to state a claim upon which relief can be granted in that the laws of this state do not permit the maintenance of an action for specific performance of a contract of employment.”

Title 9, § 55, Code 1940, lists certain types of obligations that cannot be specifically enforced, and among them are, “An obligation to render personal service” and “An obligation to employ another in personal service.”

Plaintiff apparently concedes in brief that specific performance would not lie but he contends ARCP “require that the Court look beyond the demand for relief on the surface of the Complaint to determine the appropriate relief the litigant may be entitled to.”

Here, the only other relief would be damages for the alleged wrongful discharge.

At one time (1963), this court held that it had the right to determine the damages for a wrongful discharge from employment in a case similar to this one now before us. It was so held" in Republic Steel Corp. v. Maddox, 275 Ala. 685, 158 So.2d 492. But that decision was reversed in 379 U.S. 650, 85 S.Ct. 614, 13 L.Ed.2d 580. We understand the holding of the Federal Supreme Court to be that generally: (1) state law is pre-empted by federal labor law; (2) the employee must attempt to implement the grievance procedure provided in the labor agreement; (3) the grievance procedures must be exhausted, and (4) the grievance procedure in the agreement provides the claimant an exclusive means of redress.

This is the compelling reason why we must hold that plaintiff’s suit was properly dismissed.

Affirmed.

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


author: BRADLEY, Judge.

text:
    Doyle LIPHAM v. Ulysses McELROY.
    Civ. 606.
    Court of Civil Appeals of Alabama.
    Jan. 21, 1976.

      Loma B. Beaty, Robert G. Wilson, Fort Payne, for appellant.
    Robert B. French, Jr., Fort Payne, for appellee.
   BRADLEY, Judge.

Plaintiff Lipham appeals from the alleged inadequacy of a judgment awarding him nominal damages against defendant McElroy.

Lipham filed suit against McElroy for $75,000 in damages suffered as a result of an altercation in which McElroy shot Li-pham with a .22 caliber pistol.

Trial was held on December 10-12, 1974. At the trial much evidence was heard as to the circumstances surrounding the incident and the character of the parties. Virtually all of this evidence was in dispute.

However, a portion of the evidence was undisputed: Lipham introduced evidence of hospital expenses of $1,606.54 and doctors’ bills of $750. Defendant stipulated that these charges were reasonable. Li-pham also testified without contradiction as to pain suffered from the shooting and to a job opportunity he lost due to his injury.

At the conclusion of the hearing the trial judge gave a charge which stated in part:

“If you are reasonably satisfied from the evidence that the plaintiff is entitled to recover you should award a sum which would reasonably and fairly compensate him for such pain and suffering and mental anguish already suffered by him or for any pain, suffering or mental anguish which you are reasonably satisfied from the evidence he is reasonably certain to suffer in the future. Also, in regard to compensatory damages, the measure of damages for medical expenses is all reasonably (sic) expenses necessarily incurred for doctor and medical bills which the plaintiff has paid or become obligated for. Reasonableness of such medical and doctor bills is ordinarily an issue. In this case the parties have agreed that the medical bills and doctor bills which have been presented are reasonable.”

The jury returned the following verdict:

“We, the jury, find the issues in favor of the plaintiff and assess his damages at $1.00. Frank Duke, Foreman.”

Plaintiff moved for new trial on the grounds that the award was inadequate. This motion was denied.

This appeal assigns as error the denial of the motion for new trial and the refusal to give plaintiff’s requested charges 2, 7, 8 and 9. Although the refusal of the charges was properly excepted to in compliance with Rule 51, ARCP, the assignments of error based thereon present no grounds for review. The refused charges relate solely to the issue of liability. Because the jury found this issue in favor of appellant, the error, if any, in refusing the charges would be harmless, Rule 61, ARCP, Fike v. Stratton, 174 Ala. 541, 56 So. 929. The only assignments to be considered, therefore, relate to the motion for new trial.

The fact that the jury found the issues in plaintiff’s favor, that plaintiff had proven reasonable medical expenses in the total amount of $2,356.54, plus pain and suffering, and that the jury awarded only nominal damages brings the instant case squarely within the holding rendered- in Conner v. Hamlin, 33 Ala.App. 54, at 56, 29 So.2d 570, at 572:

. . Having found that appellee’s conduct [assault and battery] was illegal, the jury’s action in failing to assess properly established damages proximately resulting therefrom can be viewed in no other light than being capricious.
“Viewed in the light of the verdict the conclusion is inevitable that the damages awarded by the jury did not cover the substantial medical expenses incurred by the appellant. It is equally clear that the damages in nowise covered any award for physical and mental pain and suffering. To affirm this verdict and judgment awarding only nominal damages for substantial damage suffered by appellant according to the great preponderance of the evidence would, we are convinced, be wrong and unjust. [Citations omitted.]”

There was error in the trial court’s denial of motion for new trial.

Reversed and remanded.

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


author: HOLMES, Judge.

text:
    Alton BASWELL v. C. E. WILKS.
    Civ. 645.
    Court of Civil Appeals of Alabama.
    Jan. 21, 1976.

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

This is an appeal from a jury verdict and judgment thereon in favor of the plaintiff. The plaintiff sued defendant for work and labor done in the drilling of a well. Issue was joined and thereafter the jury returned a verdict for $1,887 against defendant. Hence, this appeal.

The properly presented and argued assignments of error (See Supreme Court Rule 9 and 2A Ala.Dig. Appeal and Error, ®=>761.) urge the trial court erred to reversal in admitting into evidence two pages of a document entitled “The Handbook of Alabama Agriculture”; in ' refusing to grant a new trial in that a juror was related within the degree to plaintiff’s attorney; and further, that the verdict is contrary to the weight and preponderance of evidence.

I

Plaintiff, in presenting his case, called one D. C. Poe as a witness. Mr. Poe testified he was an extension farm agent and had been so for eighteen years. Poe held a degree in agriculture from Auburn University. He identified the document referred to above. The following then occurred :

“CONTINUATION BY MR. BAKER:
“Q. I will ask if this is a standard and recommended authority on the subject matter ?
“MR. BECK: Objection. That is a conclusion on his part.
“THE COURT: On water usage?
“MR. BECK: Yes, sir; I object to that.
“THE COURT: I’m going to overrule right now.
“MR. BECK: We except.”

The jury was then excused and thereafter the following transpired:

“BY MR. BECK:
“Q. Let me ask you this, Mr. Poe: This has to do with farms, doesn’t it?
“A. Farms and farm homes.
“Q. What if it’s just a house and a lot?
“A. Well, I’m just saying this.
“Q. I’m saying what if it’s a house and a lot, it wouldn’t apply to that?
“A. It would be similar.
“Q. How do you know it would?
“A. A house and a lot would use about the same thing.
“MR. BAKER: I’m not asking him to testify from personal knowledge. All he’s asked to do is identify this book and he’s done that. He’s not testifying as an expert; all he’s doing is identifying the book. I have not qualified him as an expert, nor have I tried to.
“MR. BECK: Which page are you offering?
“MR. BAKER: 439.
“MR. BECK: I offer 440.
“MR. BAKER: 439 and 440 are both in then.
THE COURT: All right, sir. By agreement, Mr. Beck, 440 will be introduced for the defendant?
“MR. BECK: Yes, sir.
******
“CONTINUATION OF DIRECT EXAMINATION BY MR. BAKER:
“Q. Just to clear this up then, Mr. Poe, this is a handbook published by Auburn University ?
“A. That’s right.
“Q. And is recognized as standard authority in the subject it contains?
“A. Yes, sir.
“MR. BAKER: That’s all. You can be excused.
“MR. BECK: You can go.
“THE COURT: Can this witness be excused?
“MR. BECK: Yes, sir.”

It is clear to this court that the pages from the document were introduced without objection. Matters not objected to at trial below cannot be raised for the first time on appeal. Callahan v. Weiland, 291 Ala. 183, 279 So.2d 451; Colburn v. Mid-State Homes, Inc., 289 Ala. 255, 266 So.2d 865. In fact, it could be said that the pages were introduced by agreement. We would further note that it appears to this court the document would, in this instance, be admissible under the general principle that a treatise, essay, or pamphlet on a subject of science which is testified to by an expert as being a standard and trustworthy authority on the subject is admissible. McElroy, Law of Evidence In Alabama, 2d ed., vol. 2, pp. 268-269.

II

Distinguished counsel for the defendant’s motion for new trial alleged that a juror failed to respond to the question whether any member of the jury venire “was related by blood or marriage to John M. Baker, attorney for Plaintiff”, and that, in fact, one juror, A: J. Lindsey was related. The trial court denied the motion for new trial, finding that the juror was not disqualified.

Tit. 30, § 55(11), Code of Ala. 1940, provides in pertinent part that in a civil case it is good challenge for cause by either party if a juror is related by affinity within the fifth degree to any attorney in the cause to be tried.

To best explain the relationship of plaintiff’s attorney to juror, A. J. Lindsey, we set out below a stipulation entered into by counsel for plaintiff and defendant.

“STIPULATION WITH REGARD TO MOTION FOR NEW TRIAL
“It is hereby stipulated and agreed that the following facts are true and correct.
“1. Alma Baker Lindsey is the sister of John H. Baker who is the grandfather of John M. Baker, attorney for the plaintiff. Alma B. Lindsey was married to A. Herman Lindsey, deceased, who has been dead for approximately eight to ten years. Alma Baker Lindsey and A. Herman Lindsey lived in California since about 1927. A. Herman Lindsey was a brother to A. J. Lindsey, who as a juror in the above styled cause.
“2. J. D. Tolbert is the son of Dewey and Lillie Tolbert. Lillie Tolbert was the sister of the mother of Excell Baker. Excell Baker was the father of John M. Baker. Therefore, J. D. Tolbert and Ex-cell Baker were first cousins by blood and John M. Baker, Attorney for the Plaintiff, and J. D. Tolbert would therefore be second cousins. J. D. Tolbert married Lanette Lindsey Tolbert, who is the daughter of A. J. Lindsey, who was a juror in the above styled case.
“3. In qualifying the jury at the trial of the above case, the Judge asked if any member if [sic] the venire was related by blood or marriage to John M. Baker, Attorney for Plaintiff. No juror, including A. J. Lindsey, made any response.
“Done this 21st day of May, 1975.
“S/ TOHN M. BAKER
“S/ W. M. BECK, SR.

As seen from the above stipulation, plaintiff’s counsel is not related by affinity in any degree to the juror Lindsey. In Duke v. State, 257 Ala. 339, 344, 58 So.2d 764, 768, cited to us by defendant, we find the following:

“The civil law method of computing degrees of kinship is to begin the count with one of the persons in question and proceed up to the common ancestor and then down to the other person, calling it a degree for each person both ascending and descending. The number thus counted expresses the degree of kinship. Danzey v. State, 126 Ala. 15, 28 So. 697; Owen v. State, 255 Ala. 354, 51 So.2d 541. It is obvious that the deceased and the juror are not related within the 5th degree. In fact they are not related by affinity at all. The relationship of affinity is that between one spouse of a subsisting marriage — in this case Mrs. Media Floy Giles, the deceased, — and the blood relatives of the other spouse. Kirby v. State, 89 Ala. 63, 8 So. 110, 111; Lowman v. State, 161 Ala. 47, 50 So. 43; Cambron v. State, 227 Ala. 575, 151 So. 443. The relationship between the parties here involved is a more remote one, viz., between the kinsmen of two persons married, the daughter of the deceased woman in this case and the first cousin of the daughter’s husband. The rule was stated in the case of Kirby v. State, supra, as follows.
“ ‘ “Affinity properly means the tie which arises from marriage betwixt the husband and the blood relatives of the wife, and between the wife and the blood relatives of the husband. But there is no affinity between the blood relatives of the husband and the blood relatives of the wife.” The juror Bryant being a cousin of the stepfather of the deceased was related by affinity to the mother of deceased, but bore no relation to deceased himself, and was a competent juror.’ ”

In this instance Attorney Baker would be related by affinity to A. Herman Lindsey but not the brother of A. Herman Lindsey, juror A. J. Lindsey. Additionally, the attorney would be related to Lanette Lindsey Tolbert by affinity but not to Lanette Lindsey Tolbert’s father, juror A. J. Lindsey. We therefore find the trial court did not err in denying the motion for new trial.

Ill

Defendant’s final argued assignment of error is that the trial court erred in denying defendant’s motion for new trial in that “the verdict of the jury and the judgment entered thereon are contrary to the great weight and preponderance of the evidence. . . .”

Defendant’s argument in this regard is to the effect that the evidence showed the work and labor done by plaintiff was not satisfactory. That is, that the well did not produce the required amount of water. Suffice it to say our review of the record reveals that the testimony is in conflict regarding the adequacy of the. well. Under such circumstances it becomes the duty of the trier of the facts to reconcile such conflict.

It is appropriate to quote what this court said in American Home Building & Loan Ass’n v. Long, 24 Ala.App. 34, 36, 129 So. 793, 794:

“To hold in line with the contention of appellant would be in effect necessitate a ruling by this court that the judgment so rendered is manifestly and palpably against the evidence in this case, and that the preponderance of the evidence is decidedly adverse to the judgment pronounced and entered. This we cannot do under the general and well-settled principal [sic] of law that the verdict of a jury, or judgment by the court upon a trial without the intervention of a jury, should not be disturbed unless the adjudication reached below is far afield from the evidence and the law applicable thereto. A rule of this import is declared in the case of Cobb v. Malone, 92 Ala. 630, 9 So. 738. The rule therein stated has been approved and followed by innumerable decisions of the appellate courts of this state.”

The case of Cobb v. Malone, supra, was reaffirmed by the Alabama Supreme Court on September 25, 1975, in Hubbard Bros. Const. Co., Inc. v. C. F. Halstead Cont., Inc., 294 Ala. 688, 321 So.2d 169. Additionally, this presumption is strengthened when the trial judge refuses to grant a new trial. See 2A Ala.Dig. Appeal and Error, ^930(1). The record reveals there is ample evidence to support the jury’s findings.

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

Affirmed.

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


text:
    Joseph Franklin PEACOCK v. Rose PEACOCK.
    Civ. 530.
    Court of Civil Appeals of Alabama.
    Dec. 31, 1975.
    Rehearing Denied Jan. 21, 1976.
    Hugh A. Locke, Jr., Birmingham, for appellant.
    No brief for appellee.
   HOLMES, Judge.

This is a divorce case.

The Circuit Court of Jefferson County awarded custody of the parties’ four year old female child to the mother. The father appeals from this award.

The only issue presented to this court is whether the trial court erred in awarding custody of the child to the mother. We find it did not and affirm.

The parties were first married in 1971. They were divorced in 1973. This divorce was obtained on answer and waiver. The parties settled their differences regarding custody, support, and division of property by agreement. This agreement was incorporated into the decree. The mother was awarded custody.

In March of 1974, the parties remarried. They separated in June of 1974. In August of 1974, the mother filed for divorce. The father crossclaimed and requested that custody be awarded to him. In December of 1974, the learned trial judge divorced the parties, made a division of certain properties, and awarded custody of the child to the mother with the father being granted visitation rights. From this decree this appeal was perfected.

As is so often stated by this court, in cases involving child custody the paramount issue is the best interest of the child. Linderman v. Linderman, 49 Ala.App. 662, 275 So.2d 342.

In this instance, the evidence as revealed by the record is contradictory, harsh, and sometimes bitter. No useful purpose would be served by setting out in detail the testimony. Suffice it to say that the mother and witnesses called on her behalf testified that the mother cared for the child in a proper manner; that the child was not abused; and that the house where the child stayed with the mother was clean. On the other hand, the mother and some of her witnesses did not “speak well” of the father’s attributes as a proper person to have the care, custody, and control of the minor child.

The tenor of the testimony of the father and his witnesses was to the effect that the mother was not a fit and proper person to have the care, custody, and control of the child. The most damaging testimony as to the mother’s fitness was that of a physician. The doctor’s testimony was to the effect that the child had to be hospitalized because it was neglected in some manner.

It is clear from the above that it was en-cumbent upon the trial judge to resolve the conflicting testimony and to make a determination as to the best interest of the child. This he did.

It is equally as clear that this court is required to view the trial court’s decree with the presumption of correctness attendant in this type of case. Blankenship v. Blankenship, 266 Ala. 182, 94 So.2d 743. So viewing, this court cannot say the trial judge erred in his determination that the best interest of the child would be for the mother to have custody. For this court to reverse, in this instance, would be to substitute our own judgment for that of the trial judge. This the law will not allow. Sutton v. Sutton, 55 Ala.App. 254, 314 So. 2d 707.

All properly presented and argued assignments of error having been considered, this case is due to be and is affirmed.

Affirmed.

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


text:
    Larry Wayne LANIER v. STATE.
    3 Div. 412.
    Court of Criminal Appeals of Alabama.
    Jan. 20, 1976.

      Frederick T. Enslen, Jr., Montgomery, for appellant.
    William J. Baxley, Atty. Gen., and Jane LeCroy Robbins, Asst. Atty. Gen., for the State.
   BOWEN W. SIMMONS, Supernumerary Circuit Judge.

Indictment for robbery, trial therefor, followed by the jury’s verdict of guilty. Punishment fixed by the verdict at ten years imprisonment in the penitentiary. Appellant was an indigent when tried. He was represented then and now on this appeal by appointed counsel.

We have examined the record and fail to find any ruling of the trial court that was prejudicial to defendant.

We will limit this opinion to the sole argument of appellant’s counsel that the trial court committed reversible error for that it overruled defendant’s motion for a mistrial.

The motion was based on the oral assertion of defendant’s counsel that defendant “was not dressed in nonprison clothes until after he had been escorted into the courtroom to say whether certain jurors might be excused or not. He was in the courtroom in prison clothes; and on that ground, Your Honor, we now moves (sic) for a mistrial.”

Following this motion, we quote a colloquy as follows:

“MR. HA-NEY: Your Honor, of course, the record will reflect that you couldn’t even tell that they were in those kind of clothes. We just had him dressed out as a precaution. All he had on, Your Hon- or, was a pair of khaki pants and a dungaree shirt; and you couldn’t even see anything on it, and his back was to the wall the entire time. We had him done that way so nobody could even tell. You couldn’t read ‘the Board of Corrections’ on it. It. was just small print on the back of the shirt, and his back was to the wall the whole time for that reason. There wasn’t any way at all to reveal they were prison clothes, and all he did was to come outside the door. He didn’t go near the panel. He was about fifty feet from them, and he stood there at the back door where the prisoners are while he watched the jurors be excused, the ones that were excused.
“THE COURT: Read into the record your motion for a mistrial.
“MR. TAYLOR: If Your Honor please, the Defendant was in fact dressed in prison clothes, a blue chambray work shirt and cotton trousers. And he has worn them in the same room with the jury. They recognized the error and took him back and dressed him in other clothes after that, but the wrong had been done by then, Your Honor; and on those grounds, we do respectfully move for a mistrial.
“MR. HANEY: Your Honor, we did not — what I am telling the court is I instructed the deputies before they brought him into the court when the jurors were attempting to be excused to hold his back to the wall so that they could not see the words ‘Board of Corrections’ on his shirt. And at no time was any print of any kind revealed to the jury venire. His clothes were simply a blue shirt and khaki pants.
“THE COURT: Now, for the record, let the court makfe this observation. The court feels that perhaps that this motion is not timely. It should have been brought to the attention of Judge Cros-land.
“MR. HANEY: All right.
“THE COURT: At the time of the incident referred to; and in view of all the circumstances and the statements, that of the Assistant District Attorney, the court is going to overrule your motion.”

We presume from the record that Judge Crosland was presiding when the incident occurred and not the judge to whom the motion was addressed. In view of the state of the record, we are unwilling to hold that the trial judge erred in overruling the motion. Clark v. State, 280 Ala. 493, 195 So.2d 786 (1967).

It does not appear from the aforequoted colloquy (there was no evidence offered) that defendant was paraded or exhibited to the jury in such a manner that they were able to identify him as a prisoner. For aught appearing, he was kept in the background to avoid such identity or association. Watts v. State, 53 Ala.App. 518, 301 So.2d 380 (1974).

The judgment is affirmed.

The foregoing opinion was prepared by the Honorable BOWEN W. SIMMONS, Supernumerary Circuit Judge, serving as a judge of this Court under § 2 of Act No. 28, July 7, 1945, as amended; his opinion is hereby adopted as that of the Court.

Affirmed.

All the Judges concur.


author: TYSON, Judge.

text:
    Ruby Lee LATHAM, alias v. STATE.
    3 Div. 402.
    Court of Criminal Appeals of Alabama.
    Jan. 20, 1976.
    James M. Fullan, Jr., Birmingham, J. Paul Lowery, Montgomery, William D. La-tham, Clanton, for appellant.
    William J. Baxley, Atty. Gen., and James S.- Ward, Asst. Atty. Gen., for the State.
   TYSON, Judge.

The two-count indictment charged the appellant with false pretense and grand larceny of certain machinery parts or supplies purportedly shipped to the Highway Department of the State of Alabama from Machinery and Supply, Inc., a corporation, of Montgomery, Alabama, acting through the appellant, and with the larceny of said items of the value of $488.45. At trial, the jury returned a general verdict of “guilty,” as charged, and the trial court set sentence at ten years imprisonment in the penitentiary. The appellant’s motion for new trial was denied.

The tendency of the State’s evidence was to the effect that the appellant had sent invoices for four “U” joints and two repair kits of a total value of $498.42, less a 2% discount, being of the value of $488.45, to the State of Alabama. Requisitions were then issued from the Highway Department to the Finance Department for warrant covering payment, which warrant was approved in this instance on February 5, 1973.

An employee of the Union Bank and Trust Company, Edmund Dowe, testified that a warrant of the State of Alabama for $1,055.11 was deposited to the account of Machinery and Supply Company, Inc., on February 7, 1973, and that on this same date a money order was issued by the Union Bank and Trust Company in. the amount of $1000.00, payable to Ruby Lee Latham.

I

At the close of the State’s case, a motion to exclude as to each count in the indictment was made, which was overruled, and at the close of trial, there was a request in writing for the general affirmative charge as to each count in the indictment. These requested charges were refused by the trial judge.

Inasmuch as the testimony in this cause, except for the names of the designated machinery parts, requisitioned by the State of Alabama Highway Department, and the dates of the transactions involved, is essentially the same as that appearing in this Court’s detailed opinion in Latham v. State, 56 Ala.App. 234, 320 So.2d 747, affirmed 294 Ala. 685, 320 So.2d 760, a more detailed statement is not here required. As in Latham, supra, the attorneys for the appellant requested the affirmative charge in writing as to each count in the indictment, and such was rejected by the trial court. The jury returned a general verdict of guilty. This squarely raises the question of the sufficiency of the evidence to support each count of the indictment in question. Inasmuch as our prior opinion is dis-positive of the question of larceny under the evidence here presented, which clearly does not support such a charge, this cause is due to be reversed and remanded on authority of Latham, supra.

II

Counsel for the appellant also calls attention to the motion to recuse filed in writing, and exhibits thereto attached, which was denied by the trial judge. Inasmuch as the exhibits filed in this cause in support of this motion, are essentially the same as those set forth in the prior opinion of this Court, and the Supreme Court of Alabama in In re White, 53 Ala.App. 377, 300 So.2d 420, cert. denied 293 Ala. 778, 300 So.2d 439, such need not be here repeated. This prior opinion in Ex parte White, supra, is dispositive of the motion to recuse here at issue, and we do so determine.

For the errors shown, the judgment below is reversed and the cause is remanded for new trial.

Reversed and remanded.

All the Judges concur.


author: BOOKOUT, Judge.

text:
    Jerry Lee TRUSSELL v. STATE.
    6 Div. 985.
    Court of Criminal Appeals of Alabama.
    Jan. 20, 1976.
    J. Wilfred Tucker and Hayden R. Battles, Cullman, for appellant.
    William J. Baxley, Atty. Gen., and Jack Merrill Curtis, Asst. Atty. Gen., for the State, appellee.
   BOOKOUT, Judge.

Grand larceny; sentence: six years imprisonment.

Harold Mayo testified that he owned a gun shop in Cullman where the larceny in question occurred on June 15, 1974. He was the only witness during the trial.

Around 5:15 P.M., that date, Wallace and Cecil Trussell and the appellant entered the shop separately, a few minutes apart. Mayo knew Wallace and Cecil, but not the appellant. While the three were in the shop, Mayo’s telephone rang and he went into his office to answer it. He saw the appellant leave the shop at that time. Wallace was then standing in the northwest corner of the shop by a soft drink machine and a gun rack. The appellant had just walked over to the drink machine next to Wallace Trussell when Mayo heard the telephone ring. Cecil was in the rear of the shop, in the southeast corner, looking at some displays. No one was on the telephone when Mayo answered it, but while he was in the office he saw the appellant pass by the show window, outside the store.

Mayo went back into the front of the shop and a moment later, the appellant came back into the store. The telephone began to ring again, and as Mayo headed for the office, he noticed Wallace Trussell take another gun and lay it on the counter. Mayo went to his office, got his pistol, came back and confronted the three, telling them to stay where they were. The appellant and Wallace Trussell ran out the door and in opposite directions. Mayo ordered Cecil Trussell to lie on the floor and then chased Wallace a short distance. Mayo saw a Browning automatic shotgun slip from under Wallace’s pants leg and hit the floor as he reached the door. Wallace, with the shotgun hidden in his pants leg, outran Mayo and escaped.

Mayo never saw the appellant with a gun at any time. The only evidence connecting him with the larceny is circumstantial. The most substantial of which was from Mayo’s direct examination as follows :

“Q. . . . Did you recognize which gun it was that you described that Wallace Trussell took from your gun rack and laid on your counter just before you went into your office the first time?
“A. I couldn’t tell from the office what it was, but it was an over-and-under.
“Q. That was the over-and-under ?
“A. The first time, yes, sir.
“Q. And then you came back out and this defendant and that gun were gone?
“A. Yes, sir.
“Q. Then this defendant came back in?
“A. Yes, sir.
“Q. And then could you recognize then after he came back and you saw Wallace Trussell take the other gun from the thing, did you recognize that gun?
“A. Yes, sir.
“Q. Know which one it was ?
“A. I knew where the — which the second one was.
“Q. Which was the second one ?
“A. Browning double automatic.
“Q. And is that the gun that he had in his britches leg going outside the door?
“A. Yes, sir.
“Q. Have you ever seen that gun since?
“A. No, sir.
“Q. What was the value of the first gun you described there? I believe it is a Browning automatic.
“A. Between three and three hundred and fifty dollars.
“Q. And what is the value of the twenty gauge Ithaca ?
“A. Four hundred dollars.
“Q. And they had a total value of what then?
“A. Seven-fifty.”

At the conclusion of Mayo’s testimony, the defense made a motion which counsel termed as a “motion that the State’s evidence be struck — failure to prove a prima facie case,” and which the court in denying termed as a “motion to suppress.” The defense then rested. There was no exception to the court’s oral charge and no requested charges; however, appellant’s motion for a new trial raised the sufficiency of the evidence and challenged the correctness of the trial court’s denial of the motion to exclude the State’s evidence. The sufficiency of the evidence is, therefore, before this Court for review.

The State quotes from Poole v. State, 28 Ala.App. 37, 178 So. 238, cert. denied 235 Ala. 216, 178 So. 240 (1937):

“The crime of larceny is secret in its nature, and frequently must be proven by circumstances which taken by themselves would be insufficient to connect the defendants with the crime, but coupled with other facts, surroundings, and conditions, may authorize the jury to draw inferences which point directly to the defendants as the guilty agents. . .

This Court, in testing the sufficiency of the evidence, is not bound as a jury, to believe the evidence beyond a reasonable doubt and to a moral certainty in order to affirm the conviction. Rather, we must determine if there was legal evidence from which the jury could by fair inference find guilt. If so, we have no right to disturb the verdict. Haggler v. State, 49 Ala.App. 259, 270 So.2d 690 (1972).

A conviction may be based on evidence which is solely circumstantial. Creel v. State, 53 Ala.App. 504, 301 So.2d 267 (1974); James v. State, 22 Ala.App. 183, 113 So. 648 (1927). And, our Supreme Court has stated that:

“The rule is clearly established in this State that a verdict of conviction should not be set aside on the ground of the insufficiency of the evidence to sustain the verdict, unless, after allowing all reasonable presumptions of its correctness, the preponderance of the evidence against the verdict is so decided as to clearly convince the court that it was wrong and unjust. . . . ” Bridges v. State, 284 Ala. 412, 225 So.2d 821 (1969).

Here the jury was told that three men, all named Trussell, entered Mayo’s shop a few minutes apart. Mayo saw one examining a gun and lay it on the counter. Mayo’s telephone rang, and as he left to answer it, he saw appellant leaving the shop and saw him pass by the office window. He saw appellant reenter the shop moments later, and the gun was missing. Mayo saw the same man take another gun and lay it on the counter as his telephone rang a second time. He got his pistol and confronted the three Trussells.

Wallace Trussell had the second gun partially concealed in his pants leg. Both appellant and Wallace Trussell ran. There was no evidence that anyone else had entered or left the shop at the time the first gun was taken or became missing. The only reasonable inference the jury could draw was that the appellant had taken it and then came back to take, or assist in taking, the second gun.

The State did not prove any kinship between the three Trussells, but again, under the circumstances, it would be reasonable for the jury to infer that they were kin, and that they were accomplices pursuant to Title 14, § 14, Code of Alabama 1940.

We find ample evidence from which the jury could by fair inference find the appellant guilty of the larceny of the guns as charged in the indictment. The fact that only one witness testified does not render the evidence any less cogent. As we have often stated, we do not travel on the numerical number of witnesses in our judicial system, and that a fact may be established as firmly by the testimony of one witness as by the testimony of an entire community. Haggler, supra; Gray v. State, 38 Ala.App. 508, 88 So.2d 798 (1956). The evidence here raised questions of fact for the jury and we, therefore, are unable to disturb their verdict. Young v. State, 283 Ala. 676, 220 So.2d 843 (1969).

Affirmed.

All the Judges concur.