author: EMBRY, Justice.

text:
    CITY OF MOBILE, a Municipal Corporation of the State of Alabama v. Price L. MITCHELL et al.
    SC 1122.
    Supreme Court of Alabama.
    July 31, 1975.
    S. R. Sheppard and Robert C. Campbell, III, Mobile, for appellant.
    Mylan R. Engel, Mobile, for appellees.
   EMBRY, Justice.

This appeal is from a judgment of the Circuit Court of Mobile County which contained, in addition to findings, the following order:

“IT IS, THEREFORE, ORDERED, ADJUDGED and DECREED that the City of Mobile is hereby ordered to pay to the Defendant Grant his full back pay from September 16, 1971 until the date on which all tunnel employees of the City of Mobile were placed on a resignation re-employment list, and whatever compensation he may have earned in other pursuits shall not be deducted.”

The action was one for declaratory judgment, brought by City of Mobile against the defendants Mitchell, Berger and Vaughan as members of, and constituting, the Personnel Board for Mobile County, Alabama and defendant Grant a former employee of plaintiff-City in its Classified Service as Toll Collector, Bankhead Tunnel Department.

The dispute, sought to be resolved by the action, was whether earnings of Grant from other pursuits were properly deductible from back salary which the trial court ordered paid to him by the City of Mobile for the period during which he was wrongfully prevented from working for the City.' That is the sole question presented for review by this appeal.

The dismissal of Grant by the City of Mobile, his appeal to the Personnel Board, the action of the Board and action of the trial court on review of the Board’s action was described in Grant v. City of Mobile, 50 Ala.App. 684, 282 So.2d 285, cert. den. 291 Ala. 458, 282 So.2d 291 (1973).

A portion of the judgment below reads:

“ * * * The rule that an employee unjustly discharged must deduct from his recovery for wages whatever he has earned since his discharge does not apply in the instant case as there is no broken contract or damage for its breach. There is no contract between the employee and the Municipality by force of which the salary is payable. That salary belongs to him as an incident of his employment and so long as he holds it and when improperly withheld may sue for and recover it. * * *”

That portion of the judgment quoted next above paraphrases language found in Fitzsimmons v. City of Brooklyn, 102 N.Y. 536, 7 N.E. 787 (1886). The New York court in Fitzsimmons, as did the learned trial judge in this case, held that the municipal employee was entitled to his earnings as an incident of his employment (office), not by virtue of contract, therefore need not deduct from his recovery for wages whatever he has earned from other pursuits while unjustly discharged. We are in accord with the reasoning of both courts and affirm the judgment below.

Indeed we find this result and expression of the underlying principles of law in support of it in City of Anniston v. Douglas, 250 Ala. 367, 34 So.2d 467 (1948). There a police officer of the City of An-niston had been suspended and was prevented from working for a period of time by reason of that suspension. He brought suit to recover his salary for such period. On the points of law pertinent to this case, considered by this court in Douglas it was stated:

“This plaintiff was not serving under contract, but under law. He began service November 15, 1941, and was under civil service, with no term fixed by law, rule or contract. His salary was presumably fixed by the city authorities, though how that was done does not appear. It was in the amount of $180.00 monthly. But it is clear that he was not serving as an employee under contract, expressed or implied, but as an officer under law. The right to suspend him is not controlled by contract, but by law.
“He is suing for his salary fixed by authority of law as an incident of his office, for the period of an alleged unlawful suspension. * ‡ *”

Admittedly, we follow a minority view. We do so in just resolution of the question and follow Douglas under the facts of this case. The majority rule with respect to municipal employees is different. A substantial majority of the courts which have considered the question now before us conclude that a wrongfully suspended (or wrongfully discharged) municipal employee due back pay upon reinstatement must deduct other compensation earned during the period for which back pay is due. See cases collected in 4 McQuillin, Municipal Corporations, § 12.186 (3d Ed., 1968); Annot., 150 A.L.R. 100 (1944). The majority rule apparently is based on a differentiation between municipal officers and municipal employees: a public official or officer is entitled to full pay whether, working or not, as an incident of office whereas a public employee’s right to pay is more akin to the right to pay of one under a contract of employment. 4 McQuillin, § 174b. In the latter instance the majority would require the employee to mitigate damages by deducting from an award of back pay such earnings as were realized from other pursuits while wrongfully suspended or wrongfully discharged from his municipal employment.

That rationale is untenable. Both classes of public servants hold their positions by virtue of law. In the instant case Grant and employees of the City of Mobile are specifically governed by Act No. 470, Local Acts of Alabama, 1939. Section XI, p. 307, of that Act states:

“ * * * Each employee in the Classified Service shall he paid initially at the minimum rate * * *” (emphasis added)

That Act further provides that raises or deductions can only be made within the minimum and maximum rate set for the class or position in which an employee works. Thus the salary of Grant is fixed by law and is incident to his office, position as a Classified Service employee, just as the salary of Douglas was fixed by authority of law as an incident of his office (position) as a police officer under civil service. Act 470 labels the civil service of Mobile County and municipalities therein as the Classified Service.

Grant was wrongfully prevented from working, he is entitled to his salary; since that salary is fixed by authority of law it may not be diminished. We therefore hold that where a Classified Service municipal employee is wrongfully prevented from working, he or she is entitled to recover full back pay without any deduction of other compensation earned.

Appellee’s motion to dismiss the appeal based on asserted deficiences in perfecting the appeal and assigning error is overruled.

Affirmed.

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


source: Caselaw Access Project

author: HARWOOD, Justice. JONES, Justice

license: Public Domain

text:
    In re Ronald Keith CONNELL v. STATE of Alabama. Ex parte STATE of Alabama ex rel. ATTORNEY GENERAL.
    SC 899.
    Supreme Court of Alabama.
    Nov. 14, 1974.
    Rehearing Denied Jan. 23, 1975.

      William J. Baxley, Atty. Gen. and Ker-mitt M. Downs, Asst. Atty. Gen., for the State, petitioner.
    Walker, Hill, Gullage, Adams & Um-bach, Opelika, for respondent.
   HARWOOD, Justice.

We granted the State’s petition for a writ of certiorari in order to review the judgment of the Court of Criminal Appeals which reversed the judgment of the lower court finding this petitioner guilty of murder in the first degree. The sole basis for the reversal of the judgment is set out below. We are not in accord with the conclusions and judgment of the Court of Criminal Appeals reversing the judgment of the lower court.

The facts surrounding the murder of Burt Michael Froney by this petitioner and his three accomplices have been set out in detail in the opinion of the Court of Criminal Appeals and we will not again detail these facts except as they may bear upon the conclusions we have reached.

Suffice to say that the deceased and his wife, traveling in a camper, in a spirit of charity, picked up the appellant and his three hitchhiking companions. Every hospitality was offered the quartet by the Fro-neys, even to the extent of proceeding beyond their destination in order to take the hitchhikers into Montgomery. On this extension of the trip, the Froneys’ good will was rewarded by the quartet murdering Mr. Froney and attempting to murder Mrs. Froney. The facts as shown in the opinion of the Court of Criminal Appeals discloses a heinous, vicious, and premeditated murder. Mrs. Froney was stabbed seven times, an attempt was made to suffocate her, and the camper was set afire in an apparent effort to destroy the evidence of the crime. The appellant and his accomplices were later 'apprehended in California with certain belongings of the Froneys’ in their possession.

Despite the murderous assault on her, Mrs. Froney, after the quartet had fled the scene of their atrocity, was able to leave the camper and make her way to a highway where fortunately she was discovered by a patrolling State Trooper.

She was taken to a hospital where she was interviewed within two days by law enforcement officers.

No evidence was offered by the defense other than that of several witnesses whose testimony was directed solely toward supporting- appellant’s plea of not guilty by reason of insanity. The trial judge in his instructions to the jury, charged the jury that there was no evidence tending to support the plea of not guilty by reason of insanity, and the Court of Criminal Appeals approved of this action. Therefore, the only material question remaining is that of appellant’s guilt in participating in the murder. The appellant offered no evidence contradictory of the evidence offered by the state in this regard, and the evidence offered by the state was overwhelming in its tendencies establishing the appellant’s guilt.

The only question presented for our review on this certiorari is the action of the Court of Criminal Appeals in reversing the judgment of the lower court because of that court’s refusal to permit counsel for the appellant to cross-examine Mrs. Froney, the only eye witness to the murder of her husband, relative to a transcript made of an interview between Mrs. Froney and investigating officers, the interview taking place a day or so after the murder, and while Mrs. Froney was in the hospital. This transcript had never been signed, nor ever seen by Mrs. Froney.

It is clear from the record that Mrs. Froney had not used any notes or memo-randa of any kind during her direct examination.

It was undisputed that such interview was had. We have therefore gone to the record for a more complete understanding of this matter as treated in the opinion of the Court of Criminal Appeals. Wilbanks v. State, 289 Ala. 171, 266 So.2d 632.

In its treatment of the matter, the Court of Criminal Appeals has set out “a stipulation of the parties and a colloquy between counsel for the defendant, Mr. Walker, the District Attorney and the trial court * * * ” No clear picture of the entire record in regard to the court’s ruling comes through from this recitation, and as before stated, we have gone to the record for a fuller understanding of the situation.

As to the interview the investigating officers had with her in the hospital, and the transcript made by the officers following such interview, Mrs. Froney testified on voir dire examination as follows :

“BY MR. WRIGHT:
“Q Mrs. Froney, did — I’d like to show you a paper here, or at least a memorandum of some 34 pages long and ask you, did you make this memorandum here?
“A No, I didn’t make it myself.
“Q Did you sign it in any way ?
“A Not signed by me.
“Q Have you ever seen — did you ever read it over or see it before now?
“A No, I don’t know anything about it.
“Q Did you see me with it in my hands here last week in the trials of—
“A I saw it there with all the other paper work.
“Q Did you give any kind of written statement to the officers there, or at any time ?
“A No, I don’t believe I ever did.
“MR. WALKER: Well, let me ask her this on voir dire, too. Mrs. Froney, you do recall that you gave an oral statement to Captain Herman Chapman and Sheriff Jim Pearson of Lee County and to perhaps some other officers at the East Tallapoosa County Hospital?
“THE WITNESS: I do recall they came in dnd they asked me questions.
“THE COURT: When was that ?
“THE WITNESS: That was — I’m not sure what day it was. It was possibly a day or so after I had been put in the hospital.
“THE COURT: The day after you were carried to the hospital ?
“THE WITNESS: A day or so.
“MR. WALKER: ‘A day or so,’ she said.
“THE COURT: A day or so after the occurrence?
“THE WITNESS: Yes, sir.
“THE COURT: How long did you stay in the hospital ?
“THE WITNESS: I was in there about one week.
“MR. WRIGHT: Could I ask her one other question?
“Q Was it on January 27th when the officers — the afternoon of January 27th when the officers came to talk to you at the hospital, or do you recall ?
“A I know it was just a day or so later, which would make it the 27th or 28th.
“Q All right. You, of course, were still in the hospital at that time ?
“A Yes, I was.
“Q You were still under sedation, were you not ?
“A Very much so.
“THE COURT: Under sedation ?
“Q State whether or not when the officers talked with you, they would talk with you awhile and then the nurse would ask them to leave.
“A Yes, I couldn’t really talk for any length of time. And so the doctor and the nurse were there and they would have them to leave for a period of time, and then we would resume again and we’d get stopped again, and it went on for hours.
“Q All right. For hours ?
“A Yes.’’

The officers’ transcription of this interview had been furnished defense counsel.

At the time defense counsel attempted to cross-examine Mrs. Froney as to this transcription, the district attorney objected to such line of questions on the ground that Mrs. Froney had never seen the transcription. The court sustained the objections of the district attorney and the record shows the following in this regard:

“MR. WRIGHT: We’re going to object to Mr. Walker questioning her about a statement that she has already said she has never seen before.
“THE COURT: Sustained, and the Court cites the case of Mabry versus State [40 Ala.App. 129], 110 So. (2) 250; and particularly the case of Parker versus State [266 Ala. 63] 94 So.(2) 209. Mr. Walker, that is an unsigned statement; it was taken and she has never signed it and- she has testified she has read it; she doesn’t know what’s in there, and the Supreme Court of Alabama says you can’t impeach a witness on —
“MR. WALKER: I’m not trying to impeach her, Your Honor. There’s not one thing in there contradictory in here from what she’s told me. I’m just really trying to refresh her recollection from it.
“THE COURT: Well, it seems to me you’re impeaching her; you’re holding the statement in your hand.
“MR. WALKER: I’m showing it to her.
“THE COURT: You’re showing it to her? Well, you’re trying to show that she made one statement there and she’s making another statement today. What is it except impeachment ?
“MR. WALKER: Well, I’m trying to help her remember some of the details, Your Honor, and that’s all. I’m really not trying to impeach the young lady. I don’t think she’s trying to withhold anything.
“THE COURT: I don’t think so, either.”

We agree with the lower court that the examination of Mrs. Froney in regard to the transcription would appear to be in the realm of impeachment. No proper predicate was laid for impeachment. If defense counsel’s contention that he was not trying to impeach Mrs. Froney but only trying to refresh her recollection be accepted, the court was yet justified in sustaining the objection. The murder was committed on the night of 26 January 1972. Mrs. Fro-ney was interviewed by the officers on the 27th or 28th of January 1972. Her cross-examination was on 31 May 1972, some four months later.

As stated by Judge McElroy in his outstanding work on “Law of Evidence in Alabama,” Vol. 1, 2nd Ed., Sec. 116.02, (2), which section pertains to refreshing a witness’ recollection by the use of memoran-da:

“It is not required- that the witness himself shall have made the writing. It may have been made by another provided the witness saw it at a time when the matter recorded in it was fresh in his mind, and he then knew the writing to be correct. Penny [Penney] v. Warren, 217 Ala. 120, 115 So. 16; United States Fidelity & Guaranty Co. v. Yeilding Bros. Dept. Store, 225 Ala. 307, 143 So. 176; Campbell v. State, 29 Ala.App. 343, 195 So. 775.”

Mrs. Froney of course had not seen the transcript of the memorandum prepared by the officers after their interview, had no knowledge of the contents of the memorandum, and was confronted with the same some four months later, during her cross-examination as a witness in petitioner’s trial. The court’s ruling denying petitioner’s attempted cross-examination for the purpose of refreshing her recollection was therefore correct.

Counsel for petitioner Connell has directed his contention of error in the ruling hereinabove considered mainly on the basis that the ruling deprived the petitioner of the right to a full and sweeping cross-examination. It is true that Section 443, Title 7, Code of Alabama 1940 provides:

“The right of cross examination thorough and sifting, belongs to every party as to the witnesses called against him. * * *»

But this statutory provision is not unlimited. It is well settled by the decisions of this court, and of our appellate courts, that the latitude and extent of cross-examination, is a matter in the sound discretion of the trial court, and in the absence of prejudicial abuse, it is not reviewable on appeal. Turner v. State, etc., 289 Ala. 97, 265 So.2d 883, and authorities cited therein; McCain v. State, 46 Ala.App. 627, 247 So.2d 383, and authorities cited therein. On appeal, the party claiming that a trial judge has abused his discretion in such aspect bears the burden of persuasion. Buckelew v. State, 48 Ala.App. 411, 265 So.2d 195; Seals v. State, 282 Ala. 586, 213 So.2d 645.

Under the totality of the facts furnishing a background for the court’s ruling in the instance now under consideration, it would seem highly doubtful that the petitioner has met his burden of showing prejudice in the ruling. We need not, however, decide this point as Section 443, above referred to, cannot properly be construed as vitiating the established requirements as to refreshing a witness’ memory from a memorandum, which rule we have heretofore adverted to.

It is our conclusion that the Court of Criminal Appeals erred in its conclusion that the court below erred in sustaining the state’s objection to the questions seeking to refresh Mrs. Froney’s memory from the transcript prepared by the investigating officers. The judgment of the Court of Criminal Appeals is therefore due to be reversed.

Reversed and remanded.

MERRILL, BLOODWORTH, MADDOX, McCALL, and FAULKNER JJ., concur.

HEFLIN, C. J., and COLEMAN, and JONES, JJ., dissent.

JONES, Justice

(dissenting) :

The majority opinion gives three reasons for upholding the actions of the trial Court in not allowing the defense counsel to use the transcription in the cross-examination of Mrs. Froney:

(1) The defense counsel’s interrogation was designed to impeach the witness and no proper predicate for the impeachment had been laid.
(2) If defense counsel’s purpose was to refresh her recollection, the requisite conditions had not been met.
(3) The admissibility vel non lay within the trial Court’s discretion and this discretion was not here abused.

I respectfully disagree on all three points.

I.

Impeachment

I fail to understand how it could be conceivably argued that defense counsel was here attempting to impeach this witness. He made clear in his offer of proof that he hoped never to be in a position of having to impeach Mrs. Froney, who was the only eye witness to the brutal murder of her husband, and who had herself been a victim to this atrocity. This offer of proof, coupled with the substance and nature of the questions asked, reflect a trial strategy which abhorred impeachment. On direct examination, Mrs. Froney had answered, “I do not know” and “I do not remember” to several questions to which she had given definitive and potentially favorable replies when questioned by the investigating officer, and which replies the defense counsel now held in his hand by way of a transcription of the initial interview. To call this impeachment is in effect to abolish the distinction between impeachment on the one hand and to refresh recollection on the other, and that this Court has always recognized a valid distinction is too clear to warrant further discussion.

II.

Refreshed Recollection

The majority opinion states: “If defense counsel’s contention that he was not trying to impeach Mrs. Froney but only trying to refresh her recollection be accepted, the court was yet justified in sustaining the objection.”

The opinion then quotes from Judge McElroy’s Law of Evidence in Alabama, which prescribes certain conditions as prerequisites to admissibility, and the Court concludes these prerequisites were not here met. The quote from McElroy is taken out of context and fails to recognize the distinction between present recollection recalled and past recollection recorded. Wigmore on Evidence (Vol. 3, Chap. 28), with which McElroy agrees, delineates the two thusly:

“At the outset an important distinction is met between that present actual recollection which a witness on the stand may ordinarily be expected to exhibit (called here present recollection), and that recollection which once existed, but now, having irrevocably vanished, depends on artificial preservation (called here past recollection). The use of the latter sort was for a time little recognized, and is even now often confused with the use of a present recollection.”

In the case of present recollection, it must be remembered that we are dealing with primary evidence. It is the witness’s present recall, aided simply by some previously written memorandum. By the use of some previously recorded data the witness is saying, “This refreshes my recollection so that now, independent of the writing, I have a present recollection of the matter.” In the second situation the witness is saying, “There was a time shortly after the incident when I did remember certain of the facts and details, but I do not now, even after looking at and reviewing what was then written down, remember of my independent recollection what occurred.” In this latter case, the document itself, as secondary evidence, may be admissible- with certain safeguards designed to insure the document’s reliability, i.e., that it was either written by a particular person, or was seen being recorded by that person, or testimony as to its validity by the person who did record it. The necessity of the safeguards for reliability in the case of secondary evidence (past recollection recorded) does not obtain in the case of primary evidence (present recollection recalled).

We are here dealing with a primary evidence issue only. Counsel for defendant, in cross-examining Mrs. Froney, was in nowise attempting to introduce the transcription of her earlier interview. He was, instead, seeking to refresh her present recollection of the events in question. Conceivably, if the attempt to refresh her recollection had failed and if she persisted, after reviewing her former statement, that her recollection had not been refreshed and that she continued not to remember, then the past recollection recorded rule may have been invoked. In that event, the written statement would have been admissible as secondary evidence only if the conditions requisite to its introduction were properly proved. Alternatively, the witness might also have testified, when counsel sought to refresh her recollection, that she did not at the time of the interview make the statements which appeared in the transcription. In that event, counsel could have elected — with the proper predicate, of course — to impeach the witness. Neither of the latter two situations ever occurred.

This is not a new or novel distinction or one without practical or logical basis. Chief Justice Stone, in his celebrated opinion of Acklen’s Executor v. Hickman, 63 Ala. 494 (1879), set out the rule:

“The law recognizes the right of a witness to consult memoranda in aid of his recollection, under two conditions: First, when, after examining a memorandum made by himself, or known and recognized by him as stating the facts truly, his memory is thereby so refreshed that he can testify, as matter of independent recollection, to facts pertinent to the issue. In cases of this class, the witness testifies to what he asserts are facts within his own knowledge; and the only distinquishing difference between testimony thus given, and ordinary evidence of facts, is that the witness, by invoking the assistance of the memorandum, admits that, without such assistance, his recollection of the transaction he testifies to, had become more or less obscured. In cases falling within this class, the memorandum is not thereby made evidence in the cause, and its contents are not made known to the jury, unless opposing counsel call out the same on cross-examination. This he may do, for the purpose of testing its sufficiency to revive a faded or fading recollection, if for no other reason.
“In the second class are embraced cases in which the witness, after examining the memorandum, can not testify to an existing knowledge of the fact, independent of the memorandum. In other words, cases in which the memorandum fails to refresh and revive the recollection, and thus constitute it present knowledge. If the evidence of knowledge proceed no further than this, neither the memorandum, nor the testimony of the witness, can go before the jury. If, however, the witness go further, and testify that, at or about the time the memorandum was made, he knew its contents, and knew them to be true, this legalizes and lets in both the testimony of the witness and the memorandum. The two are the equivalent of a present, positive statement of the witness, affirming the truth 'of the contents of the memorandum.”

The rule of this case has never been overturned or questioned, and that its wisdom has been consistently acknowledged is reflected by two and one-half columns of citations in Shepard’s. In fairness to the majority, it should be noted that Acklen’s was not pointed out in briefs or oral arguments and was discovered by the author of this dissent after conference in which the vote of the court was taken.

The fallacy in rejecting the conclusion reached by the Court of Criminal Appeals is clearly focused by reversing the context in which the question arises. Suppose, for example, on direct examination Mrs. Fro-ney was unable to recall sufficient details of the occurrence to make out a prima fa-cie case against this defendant. Thereupon, the district attorney recalled to her mind the interview with the investigating officer which resulted in the transcription of the questions asked and her answers thereto. Suppose, further, that she recalled the interview and upon examining the transcription her present recollection was refreshed and that she testified over the objection of the defendant from her present recollection independently of, although aided by, the written document. On appeal, this Court without question, and properly so, would sustain the trial Court’s action in overruling the defendant’s objection and affirm the conviction. To be sure, the rule should be even more liberally applied in the context of cross-examination. If the rule of law admitting this testimony under the above hypothesis is a valid one, then it must not be analogous to a one-way ticket on a railroad — good for today only.

III.

Discretion of the Court

The trial Court, of course, must of necessity have wide discretion in the general conduct of a trial, but to use discretion as a substitute for definitive, substantive rules of evidence distorts the concept and effectively eliminates appellate review of error. If the rule of evidence above enunciated by Chief Justice Stone is the law of this State and we allow its misapplication to be affirmed under the guise of “lack of abuse of discretion,” of what value is the rule? Surely this question answers itself and precludes the use of the doctrine of discretion as a legal basis for the affirmance of the trial Court.

Indeed, the right of confrontation guaranteed by the Sixth Amendment to the United States Constitution and Art. 1, Sec. 6, Const. of Alabama, 1901, includes the right of cross-examination. Douglas v. Alabama, 380 U.S. 415, 85 S.Ct. 1074, 13 L.Ed.2d 934 (1965); Wray v. State, 154 Ala. 36, 45 So. 697 (1908); and reversal is mandated where the defendant’s substantive rights to a thorough and sifting cross-examination of an important witness have been invaded. Tit. 7, § 443, Code of Alabama 1940 (Recomp.1958), provides in express language:

“The right of cross-examination thorough and sifting, belongs to every party as to the witnesses called against him.”

See also Green v. State, 258 Ala. 471, 64 So.2d 84 (1953).

The trial Court’s discretion was here abused, in my opinion, particularly since the Court cut off defense counsel’s effort to develop the line of questions designed to refresh the witness’s recollection not merely by sustaining the district attorney’s objections, but by affirmatively asserting to defense counsel: . . I’ll just take the bull by the horns right now and say that you can’t ask her any more questions from that statement . . . ”.

I would affirm the judgment of the Court of Criminal Appeals.

HEFLIN, C. J., concurs.

      . The rule favoring admissibility under this hypothesis would likewise permit the use of the recording itself where the witness’s recollection is not refreshed from the transcription. The sound of one’s own voice might refresh one’s present recollection even though the written transcription did not.


text:
    Ronald Keith CONNELL v. STATE.
    5 Div. 133.
    Court of Criminal Appeals of Alabama.
    Feb. 4, 1975.
    Rehearing Denied March 4, 1975.
   BOWEN W. SIMMONS, Supernumerary Circuit Judge.

On reconsideration after remand, affirmed on authority of Ex parte State, etc., 294 Ala. 477, 318 So.2d 710, dated November 14, 1974.

The foregoing was prepared by Honorable BOWEN W. SIMMONS, Supernumerary Circuit Judge, serving as a judge of this Court under § 2 of Act No. 288, July 7, 1945, as amended; his opinion is hereby adopted as that of the Court.

Affirmed.

All the Judges concur.


author: HEFLIN, Chief Justice.

text:
    In re Ronald Keith CONNELL v. STATE. Ex parte Ronald Keith Connell.
    SC 1177.
    Supreme Court of Alabama.
    Aug. 21, 1975.
    Jacob Walker, Jr., Opelika, for petitioner.
    None for the State.
   HEFLIN, Chief Justice.

Petition of Ronald Keith Connell for Certiorari to the Court of Criminal Appeals to review and revise the judgment and decision of that Court in Connell v. State, 55 Ala.App. 717, 318 So.2d 718.

Writ denied.

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


author: MERRILL, Justice.

text:
    In re Frank BABIES v. STATE. Ex parte Frank Babies.
    SC 1411.
    Supreme Court of Alabama.
    Sept. 11, 1975.
    Gray, Seay & Langford, Montgomery, for petitioner.
    No appearance for the State.
   MERRILL, Justice.

Petition of Frank Babies for Certiorari to the Court of Criminal Appeals to review and revise the judgment and decision of that Court in Babies v. State, 56 Ala.App. 37, 318 So.2d 777.

Writ denied.

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


author: WRIGHT, Presiding Judge.

text:
    STATE of Alabama v. WESTERN GRAIN COMPANY, a corp.
    Civ. 525, 525A, 525B.
    Court of Civil Appeals of Alabama.
    June 11, 1975.
    Rehearing Denied July 23, 1975.

      William J. Baxley, Atty. Gen., Willard W. Livingston, Counsel, Dept, of Revenue and Asst. Atty. Gen., Herbert I. Burson, Jr., Asst. Counsel, Dept, of Revenue and Asst. Atty. Gen., for the State.
    Sirote, Permutt, Friend & Friedman, Birmingham, for appellee.
   WRIGHT, Presiding Judge.

This is an appeal by the Department of Revenue from a decree of the Circuit Court of Jefferson County, which decree set aside an assessment of income taxes against Western Grain Company for the years 1964, 1965 and 1966. We reverse.

There are three cases, one for each tax year, which were consolidated for trial and this appeal. Substantially the same issues of law are involved here as were considered by this court in the recent case of Standard Oil of Kentucky (Kyso) v. State, 294 Ala. 3, 313 So.2d 532 (1975). Certiorari was denied by the Supreme Court on May 22, 1975, 294 Ala. -, 313 So.2d 540. We find that disposition of this case is controlled by our decision in Kyso except for the issue of constitutionality which we will discuss later in this decision.

The facts giving rise to the dispute are as follows: Western Grain Company, hereafter called Western, is a foreign corporation doing business largely in Alabama. The parent corporation of Western is Diversa, Inc. For the years involved Western filed its state income tax return showing taxable income from all sources including that from business done in Alabama. On such returns it deducted from taxable income the amount shown on its books as accrued federal income tax.

There is no dispute as to the correctness of the amount of taxable income or the amount shown as accrued federal income tax thereon.

The dispute involved arose solely over whether the amount shown by the books of Western as accrued federal income tax is deductible from taxable income in determining the income tax due the State.

The taxing authority of the State in this case is derived from Constitutional Amendment CCXII adopted December 10, 1963 which is as follows:

“State Tax on Net Income of Corporations. — The legislature shall have power to levy and provide for the collection of taxes for state purposes on net income of corporations, from whatever source derived, for the calendar year 1963, or for any fiscal year beginning in the calendar year 1963, and each year thereafter, at a rate not exceeding five percent. However, all federal income taxes paid or accrued within the taxable year by corporations shall always be deductible in computing net income taxable %mder the income tax laws of this state, provided that in the case of foreign corporations the amount of federal income tax deductible shall be in proportion to income derived from sources within Alabama, to. be determined in accordance with such laws as the legislature may enact." (As proposed by Act 91, Laws, 1963, 2nd Spec.Sess., and adopted at the election of December 10, 1963.) (Emphasis supplied.)

Had Western filed an individual federal income tax return there would be no problem before us. It did not do so in fact. It joined with its parent corporation and other affiliated subsidiaries in filing a consolidated federal return under 26 U.S.C.A. §§ 1501-2. The procedure used by the Diver-sa group in filing such consolidated return may be succinctly described as follows: Each affiliated corporation prepared its statement of taxable income showing federal tax thereon as if it were filing a separate return. This statement was forwarded to the parent corporation together with a consent form for the filing on its behalf by the parent. The parent combined the income statements of the affiliated corporations and determined the tax due on the total. According to treasury regulations, if one or more affiliates have taxable income and others show losses, such income is offset by the losses and tax is paid on any remaining taxable income. Carry-over or carry-back privileges are permitted. The consolidation in this case resulted in loss of taxable income and thus no federal income tax was paid by the parent corporation.

By agreement between the parent, Diver-sa, and its affiliates, any corporation having taxable income and which would have had a federal income tax liability thereon if filing a separate return, paid the amount of such liability to the parent at the time it filed its income statement with the parent. After payment of the tax, if any, on the consolidated returns, such payment was disbursed to the affiliated corporations in ratio to their losses for the period, if any.

For the years involved, Western paid to the parent corporation the sum which it had calculated was due as tax on its taxable income as if filing a separate return. It showed this sum on its books as accrued tax. Western then claimed such sum as a deduction for paid or accrued federal income tax on its Alabama income tax return. The Department of Revenue denied such claim as.a deduction, saying in effect that Western neither paid nor accrued any federal income tax due to it joining in the consolidated return. Final assessment was made by the State after contest by Western. Western paid the assessment and appealed to the Circuit Court of Jefferson County. That court set the assessment aside and ordered refund of the assessment. The State appeals here.

This court in the Kyso case held that amendment CCXII to the Alabama Constitution is to be construed in light of statutes and regulations relating to the same subject, i. e., Title SI, Sec. 402(13), Regulation 402.2, deductions of federal income taxes. We said,

“ . . . . We interpret the phrase ‘paid or accrued’, to mean the amount paid from the parent to the IRS . To this court no federal income taxes were actually ‘paid or accrued’ by Kyso by the filing of an accounting statement with Socal.”

We follow our construction of Amendment CCXII in Kyso in this case. Though Western, in bookeeping terms, accrued on its books a calculated federal income tax which it would have been due to pay had it not chosen to use the consolidated return, it, in fact, did not pay such sum to the Internal Revenue Service nor did it incur liability tor such payment. Such tax in terms of actual liability to the taxing authority did not accrue. The several liability of the members of the affiliated group extends only to the tax due under the consolidated return. IRS Reg. Sec. 6(a) 1.1502.

Appellee quotes from Vol. 8A, Mertens Law of Federal Income Taxation, Sec. 46.-77, as follows:

“In computing separate taxable income of a member for use in the computation of consolidated taxable income under Regulation 1.1502-11 the starting point is a computation in accordance with the provsions for determining taxable income of separate corporations, with a number of specified exceptions.”

This quotation was given in support of the proposition that each member of the group consolidated for report of income and payment of taxes is the taxpayer and the amount of tax computed on its own taxable income and shown as accrued thereon is tax imposed upon it by the United States. We cannot agree such is, in fact, the case. Of course, the beginning point of a consolidated return is the sum of the taxable income of each member. Such is the case in the consolidated or joint return of a husband and wife. The taxable income of a group cannot be computed without first determining the taxable income of each member thereof. Each member of the group is a reporting unit insofar as its taxable income is determined, and all are severally liable for the tax due under the consolidated return, but there is no liability incurred, paid or accrued by a member of the group according to its separate taxable income. Removal of such liability is one of several benefits derived from joining in a consolidated return.

We interpret the phrase “paid or accrued” contained in the constitutional amendment to mean actually paid or a liability to pay. When filing a consolidated return the tax which would have been paid or accrued by a member had it not joined the group is not determined nor is it necessary to be determined, except as required by the agreement between the parent and the members of the group. No such liability is ever incurred or accrued insofar as the taxing authority is concerned.

Western contends that the application of the amendment and regulations in such manner is discriminatory as to corporations who choose to join in consolidated returns and is constitutionally impermissible.

We are unable to perceive any discrimination. Every foreign corporation earning income in Alabama is taxed the same — upon taxable income after deduction of federal income taxes paid or accrued. The decision to join in a consolidated return for federal income taxes or file a separate return is that of the taxpayer. Filing a consolidated return is a privilege and results in a consolidated tax liability. 26 U.S. C.A. § 1501. If it benefits in relief from federal taxes it may cost in the amount of deductions permitted by the State. Such results in a penalty by choice of the taxpayer. It is not discrimination by the State. We are cited to no case in point to the contrary.

On authority of Kyso v. State we reverse the judgment of the circuit court and render judgment in favor of the State.

Reversed and rendered.

BRADLEY and HOLMES, JJ., concur.


text:
    In re STATE of Alabama v. WESTERN GRAIN COMPANY. Ex parte WESTERN GRAIN COMPANY.
    SC 1399.
    Supreme Court of Alabama.
    Sept. 11, 1975.
    Rehearing Denied Oct. 30, 1975.
    Morris K. Sirote, Birmingham, for petitioner.
    No appearance for respondent, the State.
   MERRILL, Justice.

Petition of Western Grain Company for Certiorari to the Court of Civil Appeals to review and revise the judgment and decision of that Court in State of Alabama v. Western Grain Company, 55 Ala.App. 690, 318 So.2d 719.

Writ denied.

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


author: BRADLEY, Judge.

text:
    R. B. MORGAN v. Bill HARRIS et al.
    Civ. 426.
    Court of Civil Appeals of Alabama.
    Aug. 13, 1975.
    Sirote, Permutt, Friend & Friedman and W. Frank Greenleaf, Birmingham, for appellant.
    G. Bennett .Haynes, Jr., Birmingham, guardian ad litem for Bill Harris and Ronnie Harris.
    Rives, Peterson, Pettus, ‘Conway & Burge and Edgar M. Elliott, Birmingham, guardian ad litem for David Gould.
    Sadler, Sadler, Sullivan & Sharp and George M. Van Tassel, Jr., Birmingham, for Liberty Mut. Ins. Co. ,
   BRADLEY, Judge.

The appeal is from a judgment awarding damages to the appellant Morgan for the" loss of a barn and its contents and from the denial of a motion for a new trial. Plaintiff, Morgan, had alleged in his complaint that the defendants-appellees, three fourteen year old boys, had willfully and negligently burned his barn and its contents. An answer was filed by each of the three defendants.

Liberty Mutual Insurance Company intervened as a plaintiff in the action asserting subrogation rights in the amount of $1,100.

At the conclusion of the evidentiary hearing before the court and jury, the case was submitted to the jury under the simple negligence count of plaintiff Morgan’s complaint and the intervenor’s complaint. The jury returned a verdict in favor of plaintiff Morgan and against defendants in the amount of three dollars. There was also a verdict in favor of the intervenor for $1,100. Judgment was rendered in accordance with the verdicts. Plaintiff Morgan requested a new trial, which was denied.

Appellant contends that the verdict and judgment of the trial court is erroneous for that the damages awarded him are inadequate.

The facts adduced at'the trial show that appellant owned a barn that was about twenty-two years old which was used mainly for storing hay. The barn was totally destroyed by fire early on the morning of December 21, 1971.

The three appellees, fourteen year old boys, had camped out in the barn that night. They had lighted candles while in the barn and had a fire going in a five gallon can. They also exploded some firecrackers during the time they were there.

The boys stated that they were awakened by the smell of smoke and, finding that the hay in the barn was on fire, escaped by sliding down a blanket from a second story opening in the barn. An attempt was made to extinguish the blaze, but it was unsuccessful. The barn was destroyed.

The appellant testified at the trial that the barn was in good shape and was worth $7,500, although in a previous deposition appellant had stated the barn was worth $5,000. He also said that he had various articles of personal property in the barn at the time of the fire that were destroyed, and set their value at $1,700.

Mr. Morgan stated that the barn was used mainly for the storage of hay, and at the time of the fire, there were about 4,000 bales of hay in the barn. He said the hay was worth $1.00-$1.25 per bale.

One of Mr. Morgan’s sons testified that there were between 3,000 and 4,000 bales of hay in the barn at the time of the fire.

There was no other evidence relating to the value of the barn or its contents.

The barn was insured- for $1,100 and had been so insured for twenty-two years. The contents of the barn were not insured.

Appellant argues that the damages awarded are grossly inadequate and could only be the result of bias, passion or prejudice on the part of the jury. Appellant says that the undisputed evidence showed that appellant’s loss amounted to $9,700 and the verdict was for three dollars,

Appellees reply by saying that opinion testimony as to value is not binding on the jury, and, there being an absence of evidence other than opinion evidence, the jury was at liberty to award only nominal damages.

Where the jury hears opinion testimony from witnesses on the subject of value, it has the prerogative of dealing with it as it pleases, giving whatever weight their experience or general knowledge directs. Andrews v. Frierson, 144 Ala. 470, 39 So. 512. The testimony as to the value of the barn and its contents came mainly from the appellant, although his son did testify as to the approximate number of bales of hay that were in the barn when it was destroyed. Appellant’s testimony as to value was strictly opinion testimony, as was the testimony of his son.

It could easily be concluded after reading the record in this case that the jury decided that appellant had been adequately compensated for the loss of his barn by the $1,100 payment from his insurance carrier. Furthermore, it is not without the realm of possibility that the jury chose to disbelieve the appellant’s testimony as to the contents of the barn, as they have the right to do. Cleveland v. Wheeler, 8 Ala.App. 645, 62 So. 309.

Another factor that could have influenced the jury’s decision was plaintiff’s interest in the outcome of the lawsuit. He obviously stood to gain from a favorable verdict. The opinion testimony as to value of one who stands to gain excessively is not entitled to much probative weight. Alabama Great Southern R. Co. v. Russell, 35 Ala.App. 345, 48 So.2d 239, rev’d. on other grounds 254 Ala. 701, 48 So.2d 249.

Appellees also point out that because of appellant’s contradictory testimony as to the value of the barn — on one occasion appellant stated the value of the barn to be $5,000 and on another occasion he gave the value as $7,500 — less weight should be given to his opinion testimony.

It is obvious that the jury for whatever reason — and it had several reasons available to it — gave little credence to the opinion testimony on the value of the barn and its contents, and it was well within its rights to so assess such testimony. Therefore, we have no alternative but to affirm the judgment of the trial court entered after the return of the jury’s verdict and its order denying the motion for new trial.

Affirmed.

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


author: HOLMES, Judge.

text:
    Eva E. MEYERS v. Stanley MEYERS.
    Civ. 459.
    Court of Civil Appeals of Alabama.
    Aug. 27, 1975.
    Inge, McMillan & Inge, Mobile, for appellant.
    McDermott & Deas, Mobile, for appel-lee.
   HOLMES, Judge.

This is a divorce case.

Appellant-wife on appeal, through able counsel, contends that the trial court erred in its division of property; its failure to award periodic alimony; and its failure to award to appellant reasonable attorney fees.

The evidence as revealed by the record indicates the following tendencies:

Appellant-wife is fifty-one years old. Appellee-husband is eleven years older. The parties were married in Lucedale, Mississippi, in 1948. They separated briefly in 1971 and then again in early 1973. On March 26, 1973, appellee filed for a divorce on the ground of incompatibility. Appellant cross-complained in her answer alleging adultery and voluntary abandonment on the part of appellee and accordingly sought a divorce and alimony and support.

Appellant-wife has been employed for twenty-five years with International Paper Company as an inspector. According to exhibits in evidence, she makes $157 a week or $733 a month. She nets $99.13 a week or $396.52 a month. Additionally, she earns an extra $25 a month as secretary for a credit union and another extra $80 a month selling cosmetics.

Appellee is employed at the Pensacola Naval Air Station as an aircraft mechanic. He draws approximately $280 every two weeks. He suffers from some disability and is eligible for retirement, although he so far has refused retirement.

The parties own a home, the deed to which (apparently) is in both their names, and contains a survivorship clause. According to testimony of appellant the home was purchased in 1956 for $14,500. There is a $6,100 mortgage on the home with payments of $70.51 a month. The value of the home was assessed by appellant to be $18,000-$20,000, while appellee assessed it at $25,000.

The parties also maintain several savings accounts and have accumulated considerable assets. We feel compelled at this point to give a brief rundown of these assets:

No. 1. A savings account of $13,065.82 in the First National Bank of Mobile, Account No. 239489, in the name of “Eva E. Meyers.”

No. 2. A savings account of $11,874.12 in the First Federal Savings and Loan Association, Account No. 401357, in the name of “Mrs. Eva E. Meyers.”

No. 3. A $5,000 six percent certificate in the First Federal Savings and Loan Association, Account No. 604585, in the name of “Mrs. S. L. Meyers.”

No. 4. A six percent certificate in the amount of $15,815.23 in the First Federal Savings and Loan Association, Account No. SC 4624 (Account No. 2460146) in the name of “Mrs. Eva E. Meyers.”

No. 5. Savings account in the amount of $15,818.90 in the First Federal Savings and Loan Association, Account No. SC 4— 623 (Account No. 2460145), in the name of “Mrs. Eva E. Meyers, Trustee for Mrs. Mallie E. Jones,” formerly Mrs. S. L. Meyers or Eva Meyers.

No. 6. $10,203.55 in the name of E. E. Meyers with the Friendly Credit Union, Account No. 04-2361-01.

No. 7. $10,543.49 in the name of “Mr. S. L. Meyers, Trustee for Eva E. Meyers, Beneficiary,” in the First Federal Savings and Loan Association, Account No. SC 4— 622 (Account No. 2 — 460144).

Additionally, there was a $7,000 unsecured note bearing ten percent interest and due February 1975.

Both parties worked throughout the marriage. The testimony of appellee is that he paid all house payments and living expenses from his salary and contributed some funds to savings, while appellant was able to save all her money. The appellant, however, testified that she shared in the expenses and she further testified that the “biggest majority” of her earnings did go into savings.

Based on the testimony, heard ore tenus, the trial judge entered a decree granting the divorce and dividing the property as follows:

“It is also further ORDERED, ADJUDGED and DECREED by the Court as follows:
“THAT the Court hereby grants to the Defendant the exclusive possession of the homeplace of the parties but orders that the title to the said homeplace shall remain in the joint names of both parties as provided for in the original deed to the said property. The Court orders that the Plaintiff shall continue to pay the taxes due thereon and that the Defendant shall be liable for the existing mortgage due thereon together with insurance. The Court orders, however, that in event the Defendant shall remarry or upon the agreement of both parties hereto that the property should be sold, then the property should be sold and the net proceeds are to be divided equally between the parties but, in such event, the Defendant shall be reimbused for one-half of all principal payments made on the existing mortgages on the said homeplace from the date of this Decree, and that in the event the Defendant shall predecease the Plaintiff, then the Plaintiff shall pay to the estate of the Defendant the said amount of one-half of the amount paid by the Defendant on the existing mortgage before the Plaintiff shall take the said property outright by virtue of the Survivorship Clause in the original Deed to the said property. In the event the Plaintiff shall take the said property outright by virtue of the Suvi-vorship [sic] Clause in the said Deed.
“THAT, the Court hereby orders that all household furniture and furnishings together with appliances located at the said homeplace shall be the property of the Defendant subject to any lien mortgages or encumbrances due thereon with the exception of any personal belongings of the Plaintiff.
“It is further ORDERED, ADJUDGED and DECREED by the Court that the following Savings Accounts shall be the sole property of the Plaintiff together with any accumulated interest thereon:
“First Federal Savings and Loan Account No. 2460146 in the name of Mrs. Eva E. Meyers Trustee for Mrs. Era Black.
“First National Bank Savings Account No. 239489-8 in the name of Eva E. Meyers.
“First Federal Savings Account No. 2^160144 in the name of Mr. S. L. Meyers Trustee for Mrs. Eva E. Meyers Beneficiary.
“It is further ORDERED, ADJUDGED and DECREED by the Court that the following Savings Accounts shall be the sole property of the Defendant:
“The Savings Account at the Friendly Credit Union, Account No. 04 — 2361-01 in the name of E. E. Meyers.
“First Federal Savings Account No. 401357 in the name of Mrs. Eva E. Meyers.
“First Federal Account No. 604585 in the name of Mrs. S. L. Meyers.
“First Federal Savings Account No. 2460145 in the name of Mrs. Eva E. Meyers Trustee for Mrs. Mallie Jones.
“THAT the Court further orders that the existing Notes Receivable in the approximate amount of $7,000.00 from W. W. Priutt shall be the sole property of the Defendant.
“THAT the Court further orders that each of the parties shall pay their respective Attorney’s Fees.”

It is from this portion of the decree that appellant-wife appeals.

As noted earlier, the first contentions of appellant are that the trial judge erred in his division of property and in his failure to award alimony.

The contention of appellant is that the evidence shows that the vast majority of the monies saved were, in fact, saved by appellant. Appellant contends that only about $16,000 of the amount saved was contributed by appellee. Thus, appellant argues the division of property actually resulted in appellant getting only a part of that which was already hers and a windfall from appellant’s estate inured to the benefit of appellee.

At the outset, we note that the law in Alabama is that where the evidence in a divorce case is heard ore tenus by the trial court its findings are presumed correct and will not be overturned without a showing of an abuse of discretion, and this rule has particular application as regards an award of alimony. Chancellor v. Chancellor, 52 Ala.App. 10, 288 So.2d 794.

In this case we are unable to determine whether the award is an award of alimony in gross or a property division, but under the authority of Eubanks v. Eubanks, 52 Ala.App. 224, 291 So.2d 159, we are not required to make such a determination. In either event, the award must depend upon the facts and no mathematical formula can determine what is an appropriate award.

After a thorough review of the evidence, as set out in the record, we find no such abuse of discretion as to require reversal.

As this court views the evidence, the appellant received possession of the home and its furnishings and also $49,896.57, plus the interest to be accumulated on the $7,000 note. Appellee received $39,424.54 of the assets.

It is true that there is conflict as to how the savings were amassed. However, regardless of how the evidence is viewed, virtually all the assets were acquired during the parties’ marriage. Appellee testified that he paid all the bills and expenses, allowing appellant to save her pay checks. Appellant, however, testified that she shared in the expenses, and then was still able to save roughly two-thirds of her salary. The testimony on this key issue is contradictory and confusing. However, it is well established that the witnesses’ credibility is for the trial judge, who saw and heard the witnesses and was better advantaged to appraise the accuracy of all the testimony than this court sitting on review. McLeod v. Willard, 257 Ala. 672, 60 So.2d 692.

Nor do we find any abuse in the failure of the trial court to award what appears to this court to be a request for periodic alimony. It is true that the appellant is liable for the existing mortgage and insurance on the home. However, she receives benefits from such payment as provided in the trial court’s decree, as set out previously. Additionally, the evidence indicates that she draws $501 a month. Ap-pellee, himself, draws only approximately $560, and he is liable for the taxes on the property.

In view of the respective incomes, the award for household furniture and furnishings to appellant, the possession of the home to appellant, and the aforementioned award of accumulated assets, we find no abuse requiring reversal.

Appellant’s third contention is that the trial court erred in not awarding appellant attorney’s fees. We find no merit with this contention.

The award of attorney’s fees is within the sound discretion of the judge. Ryan v. Ryan, 267 Ala. 677, 104 So.2d 700. We find no abuse in the judge’s failure to award attorney’s fees. We note further that such fees were not claimed or sought by appellant in her Answer And Cross-Complaint. ’ Nor was any such request made in open court.

The judgment is due to be and is, therefore and accordingly, affirmed.

Affirmed.

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


text:
    CITY OF TUSCALOOSA v. Morris D. HOWARD.
    Civ. 507.
    Court of Civil Appeals of Alabama.
    Aug. 27, 1975.

      J. Wagner Finnell and Glenn N. Baxter, Tuscaloosa, for appellant.
    Zeanah, Donald, Lee & Williams, Tuscaloosa, for appellee.
   WRIGHT, Presiding Judge.

This is a workmen’s compensation case.

Plaintiff had been employed as a fireman by the City of Tuscaloosa for nearly 20 years when on December 8, 1972, he suffered a heart attack. While on duty as a Lieutenant in the Fire Department on November 28, 1972, and performing routine duties of housekeeping, plaintiff felt chest pains which radiated into his left arm. He informed his co-workers of his pain. He rested for a while and remained on the job until his shift was over at 6:30 A.M. on November 29. After finishing his shift he reported to his second job with the Credit Bureau as a collector. He worked Monday, the 29th, though he felt some pain. He also worked as a collector on November 30. After going home from work on November 30, he again felt pain and reported to his physician by phone. He was instructed to report to the emergency room of the hospital. After tests and electrocardiogram he was placed in an intensive care unit. He remained in that unit for two days and was moved to regular care room. On December 5, he again suffered pain and was returned to intensive care. At that time it was determined that he had suffered a heart attack or a myocardial infarction. Plaintiff remained hospitalized until December 22, 1972, and was not permitted to return to his duties until March 15, 1973.

On May 29, 1973, he filed for compensation under the Workmen’s Compensation Act. Trial was had on May 15, 1974. Judgment granting compensation was entered by the court on December 23, 1974.

Plaintiff presented his claim under three alternative theories. The court found compensation due under each theory. Defendant charges error in each finding.

The first theory was that plaintiff was subject to the Workmen’s Compensation Act as an employee of the City of Tuscaloosa and that he had suffered an accident resulting in bodily injury, a heart attack, while engaged in the line and scope of his employment.

The second theory was that plaintiff was entitled to compensation under the general occupational disease provisions of Title 26, Article 2C, i. e., that plaintiff’s injury resulted from heart disease arising out of his employment as a fireman.

The third theory was that he became disabled as a fireman due to heart disease under Title 37, Section 450(4) of the Code (known as The Fireman’s Heart and Lung Disability Act passed by Legislature in 1967,) and was entitled to workmen’s compensation by the provisions of that act.

Our review of the judgment in workmen’s compensation cases is limited to determining if there is any legal evidence to support the finding of fact by the trial court and if the correct law was applied to such facts. Reynolds Metals Company v. Gray, 278 Ala. 309, 178 So.2d 87, and cases cited therein. With such rule in mind we will examine the findings and judgment of the court as to each of the theories of recovery. If one of them is sufficient in fact and law the judgment may not be disturbed.

Defendant assigns as error the finding of the trial court that plaintiff sustained an injury by accident arising out of and in the course of his employment.

See. 262 of the Act defines “accident” as “an unexpected or unforeseen event, happening suddenly and violently, producing at the time injury to the physical structure of the body by accidental means.” The cases applying this definition are legion in this state and others. Many law review articles and treatises have been written concerning its meaning and application. Its application has been particularly difficult in heart attack cases. The results of its application have been varied and often difficult to distinguish on the facts presented. For many years the appellate courts of this state held that “accident” related to the event causing the injury rather than the result, and that such event must happen suddenly and violently, be of an unusual nature and foreign to the usual occurrences on the job. An example of such interpretation is the case of Gentry v. Swann Chemical Co., 234 Ala. 313, 174 So. 530. Beginning with the case of Gulf States Steel Co. v. Christison, 228 Ala. 622, 154 So. 565, and finding full expression in the case of Pow v. Southern Const. Co., 235 Ala. 580, 180 So. 288, our courts came to the conclusion that if the job caused the injury it was an accident under the intent of the Act. The requirement that there must be shown a violent and unusual event which causes the injury was replaced by the principle that there was an accident if the result was unexpected and unforeseen and it was caused by the job. We have arrived at the point of determining if the job caused the injury or death. Southern Cotton Oil Co. v. Wynn, 266 Ala. 327, 96 So.2d 159; Reynolds Metals Co. v. Gray, supra; B. F, Goodrich Co. v. Martin, 47 Ala.App. 244, 253 So.2d 37.

As pointed out by Larson in his treatise, Workmen’s Compensation Law, Vol. 1A, Sec. 38.83, the essence of the problem, particularly in heart attack cases is causation. How is it to be determined that the job caused the heart attack? It is certainly not enough to show that plaintiff, a fireman, had a heart attack, especially if, as in this case, the attack did not occur on the job but some 11 days later.

Larson points out that causation has two distinct parts: the legal and the medical. He says:

“The law must define what kind of exertion satisfies the test of ‘arising out of the employment’; then the doctors must say whether the exertion which has been held legally sufficient to support compensation has in fact caused the heart attack.”

How to define the legal test of cause of injury arising from an act of employment ? It surely cannot be limited to some unusual strain or exertion not ordinary to the job. Of course, in case of occurrence of an unusual exertion or happening, the determination of legal causation is generally made easier. It appears that the proper test was set out in Pow v. Southern Construction Co., supra, which we paraphrase as follows: If in the performance of the duties for which he is employed an employee is exposed to a danger or risk materially in excess of that to which people not so employed are exposed, and an injury occurs, such injury may legally be determined to have arisen from his employment and be an accident under the statute. Such can be the legal test of causation. However, the medical test of causation must also be met — that is, that such exposure, though operating with or upon other exposure common to all, was in fact, the contributing cause of the injury. This test meets the employment versus non-employment exertion test of Larson stated in 65 Mich.L.Rev. 441.

Applying this test to the facts of the instant case, we are unable to find legal evidence to support either the legal test or the medical test of causation.

There is no evidence that when plaintiff first began to suffer pain in his chest and arm on November 28, that he was undergoing or had recently undergone strain or exertion of such a nature as could be classified so different from others not employed as firemen as to be an accident. For more than 24 hours prior to the onset of pain there had been no fire alarm; there was no evidence of physical or emotional strain. He had been on duty but only doing routine maintenance and housekeeping chores. There was no evidence that he had not eaten and slept at normal times. In fact, there was no evidence of any particular strain or exertion on his job for the prior month. He had worked his job as a fireman and a second job of bill collecting in his off-duty hours. There was no evidence of strenuous activity, exposure to danger or risk different from others not employed as firemen. Though it was said in Reynolds v. Gray, supra, quoting from Row, supra that it is not necessary to show unusual strain or overexertion it is necessary to show that the strain and exertion of his work caused the injury. In Reynolds, supra, it was shown that the job entailed lifting several heavy pieces of metal in a short time while exposed to temperatures of 1350 degrees Fahrenheit. It is clear that Reynolds stands for the proposition that the evidence must show that the employee was involved in, or exposed to some sort of activity prior to or at the time of the attack or the onset of it which could satisfy the legal test of accidental causation. No such evidence is shown by the evidence of this case.

We go further and state that we find no legal evidence to support the medical test of causation. There is no testimony that any activity of plaintiff at or prior to the onset of pain in any way caused such pain or his subsequent heart attack.

We must therefore hold that plaintiff suffered no accident within the definition of the Workmen’s Compensation Act. To do otherwise, under the evidence, would be to hold that any fireman suffering a heart attack would be entitled to workmen’s compensation and his employer an insurer against heart attacks.

Plaintiff’s second alternative for recovery was that his heart attack resulted from an occupational disease under Title 26, Chapter 5, Article 2C. This is the first action to establish a heart attack as an occupational disease to reach an appellate court since Article 2C was enacted by the legislature in 1971. It is therefore necessary to give the provisions of the Article close attention.

One effect of the occupational disease act is to remove the strict requirement of proof that the injury occurred by accident:

“Where the employer and employee are subject to the provisions of Chapter 5, Title 26, Code of Alabama 1940, as amended, the disablement or death of an employee caused by the contraction of an occupational disease as hereinafter defined, shall be treated as an injury by accident, and the employee or, in case of his death, his dependents shall be entitled to compensation as provided herein. ...” Title 26, Sec. 313(33), Code.

Proof of the contraction of an occupational disease does not remove the burden of proving that the contraction of the disease arose out of and in the course of employment and resulted from the nature of the employment.

“. . . [I]n no case, however, shall an employer be liable for compensation by reason of the contraction of an occupational disease, as defined herein, or for disability or death resulting therefrom, unless such disease arose out of and in the course of the employment and resulted from the nature of the employment in which the employee was engaged.” Title 26, Sec. 313(33), Code.

Sec. 313(34) defines “occupational disease” as follows: “. . . [A] disease (including but not limited to loss of hearing due to noise) shall be deemed an occupational disease only if caused by a hazard recognized as peculiar to a particular trade, process, occupation or employment as a direct result of exposure over a period of time to the normal working conditions of such trade, process, occupation or employment. The term ‘contraction of an occupational disease’ as used herein shall include any aggravation of such disease without regard to the employment in which the disease was contracted. . . . ”

Sec. 313(45) of Article 2C provides as follows:

“There shall be no presumption that disablement or death from any cause or infirmity is the result of an occupational disease nor that an occupational disease will result in disablement or death, and any person claiming compensation or other benefits under this article shall have the burden of establishing that he is entitled to such.”

We conclude that Article 2C requires that there be evidence that plaintiff has a disease which may be directly caused by or result from exposure over a period of time to a hazard recognized as peculiar to the normal working conditions of his particular occupation. There must be further evidence that plaintiff’s disease was in fact contracted from the nature of his employment or was aggravated thereby, and that the contraction or aggravation arose out of and in the course of his employment. It then must be shown that the disability claimed resulted from the disease.

With these conclusions in mind, we have examined the evidence. Our examinatin discloses that plaintiff was employed as a fireman in 1953. He was examined by a physician after suffering chest pains in 1961. His cholesterol was found to be elevated and he was placed on a diet and exercises. In 1966, plaintiff suffered a slight stroke which was brought about by hardening of vessels in the brain. His cholesterol was again determined to be high. He was given medication to lower cholesterol, thin his blood and dialate his arteries. He continued on exercise. From such history, it is evident that from the age of 27 or 28 in 1961, plaintiff has had arteriosclerosis or hardening of the arteries. The medical evidence is that plaintiff’s injury was a myocardial infarction resulting from progressive onset of arteriosclerotic heart disease. There is no medical testimony that arteriosclerosis is a hazard of employment as a fireman and is peculiar to that occupation as opposed to others, or that such disease “resulted from the nature of such employment.”

The only testimony that the occupation of fireman tended to cause heart attacks came from plaintiff himself and a fellow fireman. This evidence was objected to as improper. For a reason not clear, the trial judge repeatedly reserved a ruling on the objections and received the answers. No ruling ever appears in the record. Though the case was filed prior to the adoption of the Alabama Rules of Civil Procedure, such rules were in effect at the time of trial and for some time prior thereto. All pleadings were of the pre-Rule kind, including the announcement by the court that defendant pleaded the general issue in short by consent. Thus the trial proceeded under the old rules as permitted by Rule 86. We conclude that the learned trial judge rendered judgment after considering only legal evidence. The opinion of plaintiff and his fellow employee that the occupation of fireman caused heart attacks was patently inadmissible as expert testimony, and we do not consider such evidence on this review. ‘ Establishment of a precedent that heart attacks or heart disease is an occupational disease under the Workmen’s Compensation Act may not be permitted upon illegal evidence. If and when such decision is made, it must be upon legal evidence proving the requirements of the statute.

We hold that the legal evidence does not support the finding of the court that plaintiff contracted an occupational disease arising out of the line and scope of his employment and that such disease resulted in his injury.

Plaintiff’s third theory of recovery is that Title 37, Section 450(4) (Fireman’s Heart and Lung Act) must be read in pari materia with the Workmen’s Compensation Act and if plaintiff is qualified for benefits under that act, his compensation shall be the same as Workmen’s Compensation. We do not agree with plaintiff’s theory.

Plaintiff’s theory arises from the wording of paragraph (4) of Section 450(4) which states:

“If a fire fighter who qualifies for benefits under the provisions of this section suffers disability as a result of a fire fighter’s occupational disease his disability shall be compensable the same as any service connected disability under any law which provides benefits for fire fighters of such city injured in the line of duty . . (Emphasis ours.)

Plaintiff submits that the phrase “under any law” may be referred to the Workmen’s Compensation Law. We do not so interpret the phrase.

Without lengthy comment as to the provisions of the Fireman’s Heart and Lung Act, it is clearly evident that the purpose of the Act is to compensate a fireman who has served for three years for a disability due to heart disease. It casts no burden of proof upon him to show that such disease resulted from his occupation or that it occurred in the line and scope of his employment. The mere fact that he has hypertension, heart disease or respiratory disease and is disabled to perform duties as a fire fighter qualifies him for “benefits.”

We have emphasized the word “benefits” for it is the term which refutes plaintiff’s theory. The Act defines “benefits” as “any monetary allowance payable by a city, or from a pension system established for the firemen of a city, to a fire fighter on account of his disability, or to his depen-dants on account of his death, irrespective of whether the same is payable under a pension law of the state or some other law of the state.”

It is evident that the “benefits” payable are to come from any monetary allowance or from a pension system established for firemen and such “benefits” are to be paid “irrespective of whether benefits may be payable also from a pension law of the state or some other law of the state.” In other words, if a fire fighter develops heart disease under the conditions of the Act, and is disabled or dies therefrom, the city has to pay whatever benefits it allows or provides under its pension system for disability or death, though other benefits may also be payable under a state pension or other law of the state. For example, death benefits under Title 55, Chapter 11A of the Code.

Paragraph (4) heretofore quoted and upon which plaintiff relies also uses the term “benefits.” It says that if a fire fighter who qualifies for “benefits” as defined in the section suffers disability as a result of a heart disease, he shall be compensated therefor as he would be for any other service-connected disability “under any law” which provides benefits for fire fighters injured in the line of duty.

There is no question but that paragraph (4) does not refer to any amount of compensation provided “under any other law,” but refers to qtialification for compensation. If he is disabled by heart disease he is entitled to “benefits” provided by the city through a monetary allowance or through a pension system in the same manner as he is for any other service-connected disability under any law other than the Fireman’s Heart and Lung Act. The obvious intent of the Act is to insure that disability from heart disease is recognized as a disability incurred in the line of duty,, and shall be recognized as such under any law which provides benefits for fire fighters of the city injured in the line of duty.

It is to be further noted that the Fireman’s Heart and Lung Act predates the occupational disease provisions of Title 26, Article 2C by three years. If the legislature intended that such act be applied to the Workmen’s Compensation Act, it could have so stated and incorporated it. The case of Schwarts v. City of Duluth, 264 Minn. 514, 119 N.W.2d 822, cited by plaintiff indicates that the State of Minnesota has included certain heart disease as an occupational disease of firemen and policemen in its Workmen’s Compensation Law. Minn.St. 176.011(15). The legislature of this state has not done so. A similar act, Act 1213 (1971) enacted for the benefit of policemen and State Troopers specifically excludes the application of its provisions to any city which has elected to be covered by the Workmen’s Compensation Law. Title 55, Section 378(12) of the Code.

We call attention of plaintiff to the exclusive remedy provisions of the Workmen’s Compensation Law, including the specific provisions of Article 2C at Section 313(37) which declares if the employer and employee are subject to the Article no other method, right, form or amount of compensation or damages for contraction of an occupational disease is available.

We have not discussed defendant’s argument on appeal that plaintiff failed to show that the city was subject to Article 2C by filing its acceptance thereof as provided by Title 26, Section 263. The cited case of Ellison v. Butler, 271 Ala. 399, 124 So.2d 88 lends support to defendant’s argument. However, in view of our reversal on other bases we pretermit discussion of that assignment of error. Having determined the court erred in rendering judgment for plaintiff, the judgment must be reversed and the case remanded.

Reversed and remanded.

BRADLEY and HOLMES, JJ., concur.


text:
    Riley H. MAYHALL v. Thomas SWAFFORD.
    Civ. 511.
    Court of Civil Appeals of Alabama.
    July 30, 1975.

      Riley H. Mayhall, pro se.
    No appearance for appellee.
   HOLMES, Judge.

This is an appeal from a judgment of the County Court of Marshall County. The judgment rendered by the court, sitting without a jury, was for $295 in favor of appellee-plaintiff and against appellant-defendant.

Apparently, appellant who is represented pro se assigns as error the trial court’s order denying a motion for a new trial. Again, apparently he argues there is insufficient evidence to support the judgment.

Appellant’s brief contains no “Statement of the Facts” as required by Supreme Court Rule 9(b) which in pertinent part, reads as follows:

“. . . (b) under the heading ‘Statement of the Facts,’ ... if the insufficiency of the evidence to sustain the verdict or finding, in fact or law, is assigned, then the statement shall contain a condensed recital of the evidence given by each witness in narrative form bearing on the points in issue so as to fully present the substance of the testimony of the witness clearly and concisely;

From our perusal of the transcript of the evidence, eight witnesses testified at the trial.

The Alabama Supreme Court has consistently held that a failure to comply with Rule 9(b) requires affirmance of the trial court’s judgment. Reynolds v. Burkhalter, 289 Ala. 528, 268 So.2d 802; Hilburn v. Nationwide Mutual Insurance Co., 284 Ala. 503, 226 So.2d 160.

Additionally, appellant, in his argument, cites to this court no authority. The mere insistence of error without mention of authority does not amount to an argument, as again required by Supreme Court Rule 9(d). See Ala. Elec Co-op v. Partridge, 284 Ala. 442, 225 So.2d 848.

In view of the fact that appellant’s brief totally and completely fails to comply with Supreme Court Rule 9, as noted above, this court has no alternative other than to affirm the judgment of the trial court. However, we do note that this court has read the entire transcript of the evidence in this case, and when viewed with the attendant presumption of correctness, 2A Ala.Dig., Appeal and Error, ^931, there is ample evidence to support the trial court’s decree.

Affirmed.

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


text:
    Martha Nell Clay MASSEY v. Gregory McKinley CLAY.
    Civ. 513.
    Court of Civil Appeals of Alabama.
    July 30, 1975.
    Rehearing Denied Aug. 27, 1975.

      W. D. Wilkes, Jr., Guntersville, for appellant.
    Randy H. Beard, Guntersville, for appel-lee.
   BRADLEY, Judge.

The appeal is from a judgment of the Circuit Court of Marshall County denying a petition for modification of a prior decree of said court relating to child custody and refusing to grant a new trial.

Appellant had petitioned the trial court to modify the previous decree that had awarded custody of the parties’ minor daughter to the appellee-father. The petition averred that there were changed circumstances since the divorce decree that warranted awarding, custody of said child to her.

There was a hearing held by the court at which seven witnesses testified. At the conclusion of the hearing, the court denied the request for a change in the child’s custody. This appeal resulted.

The one assignment of error suggests that the trial court erred in overruling the motion for a new trial. There were six grounds in the motion for new trial, but appellant chose to argue only one ground, i. e., that the judgment of the court is contrary to the evidence.

Appellee, by motion to strike appellant’s brief, has called our attention to the failure of appellant’s brief to comply with Supreme Court Rule 9(b).

Rule 9(b) is in pertinent part as follows:

“. . . (b) under the heading ‘Statement of the Facts,’ ... if the insufficiency of the evidence to sustain the verdict or finding, in fact or law, is assigned, then the statement shall contain a condensed recital of the evidence given by each witness in narrative form bearing on the points in issue so as to fully present the substance of the testimony of the witness clearly and concisely;

The transcript of the testimony covers record pages 18 through 138 and contains the recitals of seven witnesses. The “Statement of the Facts” covers two and one-half pages of the brief and purports to summarize the testimony of three of those witnesses. We conclude that the "Statement of Facts” in appellant’s brief does not comply with Supreme Court Rule 9(b) where the insufficiency of the evidence to support the judgment of the trial court is assigned as error.

The Alabama Supreme Court has consistently held that a failure to comply with Rule 9(b) in the particular discussed above requires affirmance of the trial court’s judgment. Reynolds v. Burkhalter, 289 Ala. 528, 268 So.2d 802; Hilburn v. Nationwide Mutual Insurance Co., 284 Ala. 503, 226 So.2d 160.

Inasmuch as appellant’s brief fails to comply with Supreme Court Rule 9(b) as noted above, appellee’s motion to strike appellant’s brief will be considered as a motion to affirm the trial court’s judgment. Being so considered, the motion is granted and the judgment is affirmed.

Motion granted.

Affirmed.

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


text:
    STATE of Alabama, DEPARTMENT OF INDUSTRIAL RELATIONS v. Margaret L. THOMAS.
    Civ. 508.
    Court of Civil Appeals of Alabama.
    Aug. 6, 1975.
    Arthur J. Reid, General Counsel, for Dept, of Industrial Relations and Richard S. Brooks, Asst. General Counsel, for Dept, of Industrial Relations, Montgomery, for appellant.
    Love, Love & Lawrence, and William W. Lawrence, Talladega, for appellee.
   BRADLEY, Judge.

This is an appeal from a judgment of the Circuit Court of Talladega County, Alabama awarding unemployment compensation to the appellee, Margaret L. Thomas.

The issue presented to this court is whether the appellee qualified for unemployment compensation benefits under Title 26, Section 213, Code of Alabama 1940, as Recompiled 1958.

A de novo hearing was held by the trial court sitting without a jury and it found that appellee (hereinafter referred to as claimant) was eligible for benefits under the provisions of Title 26, Section 213, Code of Alabama 1940, as Recompiled 1958, and that she did leave her employment voluntarily with good cause. Claimant was awarded benefits of $55.00 per week for twenty-six weeks, and this appeal is from that judgment.

The facts are that the claimant was a sales person with Jefferson Furniture Company in Sylacauga. A dispute arose between claimant and the store manager over the sale of some household furniture which had been previously placed on lay-away. A deposit of $25 had been made by the would-be purchaser. Claimant says she told the manager that he could do whatever he wanted to about the resale of the furniture. The manager testified that the claimant said she could not afford to lose the commission on the lay-away sale, and she would have to quit if it were sold.

The furniture was sold and claimant left the employ of Jefferson Furniture Company.

The State Department of Industrial Relations (hereinafter referred to as State), by appropriate assignments of error, contends that the trial court’s judgment is erroneous for there is no evidence in the record that claimant was eligible for benefits under Section 213, supra. Section 213 requires in part that in order to be eligible for benefits, one must be able and available for work. The State also argues that the evidence is insufficient to support the conclusion that claimant voluntarily left her work with good cause. Title 26, Section 214, Code of Alabama 1940, as Recompiled 1958, provides that a person must have left his employment voluntarily to avoid being disqualified from receiving benefits which he may be eligible to receive.

In support of its argument that claimant was ineligible to receive benefits, the State says that in order for claimant to recover, she must prove not only that she voluntarily left her employment with good cause, but that she also was able and available for work. Such a burden is placed on a claimant for unemployment benefits by Title 26, Section 213(C), Code of Alabama 1940, as Recompiled 1958. At the beginning of the hearing the State stipulated as follows:

“. . . the issues [are] whether or not she is entitled to the unemployment compensation benefits that she is claiming, .... In other words we are not going to argue about what amount that she would be entitled to, but we do want to argue whether or not she is entitled to any.”

The trial court in its judgment said:

“. . . The Court having considered the evidence and stipulations finds that the Appellant is eligible under Title 26, Section 213 of the Code of Alabama of 1940 in that appellant did not voluntarily leave her work without good cause connected with her work, and is therefore qualified to receive the benefits claimed.”

The State calls to our attention the error of the trial court by the assignment of error which says:

“II
“The trial court erred in holding that the plaintiff-appellee was eligible within the meaning of the State Unemployment Compensation Law to receive the unemployment compensation benefits awarded her.”

Title 26, Section 213(C), Code of Alabama 1940, as Recompiled 1958, provides in pertinent part as follows:

“An unemployed individual shall be eligible to receive benefits with respect to any week only if the director finds that—
“C. He is physically and mentally able to perform work of a character which he is qualified to perform by past experience or training, and he is available for such work either at a locality at which he earned wages for insured work during his base period or at a locality where it may reasonably be expected that such work may be available.”

Title 26, Section 214, Code of Alabama 1940, as Recompiled 1958, provides in part as follows:

“An individual shall be disqualified for total or partial unemployment:
“B. If he has left his most recent bona fide work voluntarily without good cause connected with such work.”

As to how these sections are to be treated, the Court of Appeals in Southern Bell Tel & Tel Co. v. Department of Indus. Relations, 42 Ala.App. 351, 165 So.2d 128, said:

“It has been repeatedly held that Secs. 213 and 214 of Tit. 26, Code of Alabama, 1940, as amended, must be read and construed together for the purpose of determining one’s eligibility for unemployment compensation. . . .”

The trial court in its judgment found from the “. . . evidence and stipulations . . .” that claimant was eligible for unemployment compensation benefits “. . . under Title 26, Section 213 of the Code of Alabama of 1940 . . . .” The court further found that claimant was not disqualified from receiving benefits under Title 26, Section 214, supra, for she had voluntarily left her employment for good cause.

We construe the Southern Bell case to stand for the proposition that for one to recover unemployment compensation benefits the claimant must prove not only that he or she is not disqualified under Section 214, supra, but that he or she is eligible to receive such benefits under Section 213, supra.

The trial court’s finding that the claimant was eligible to receive benefits is without support in the evidence. After a very careful review of the record in this case we are unable to find any evidence to support a finding that claimant was able and available for work which she was qualified to do. Such proof was necessary to sustain claimant’s case and, in its absence, an essential element of her case fails. As a consequence, she would not be entitled to any benefits under the Alabama unemployment compensation law.

The judgment of the trial court is therefore reversed and the cause remanded.

Reversed and remanded.

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


author: HARRIS, Judge.

text:
    Fred Wayne KENT v. STATE.
    6 Div. 771.
    Court of Criminal Appeals of Alabama.
    Aug. 19, 1975.
    Anthony M. Falletta, Birmingham, for appellant.
    William J. Baxley, Atty. Gen., Montgomery, and David L. Weathers, Asst. Atty. Gen., Birmingham, for the State.
   HARRIS, Judge.

Kent was convicted of robbery and sentenced to ten years in the penitentiary. He was represented at arraignment by a court-appointed lawyer and entered a plea of not guilty. He was represented at trial by another lawyer. After conviction he was declared to be indigent and a free transcript was furnished him and new counsel was appointed to represent him on appeal.

Around seven o’clock on the night of February 2, 1973, the A & P Store in Irondale, Jefferson County, Alabama, was robbed of seventeen to eighteen hundred dollars by three Negroes, each armed with a sawed-off shotgun.

Mr. Michael W. Eiseman testified that he was Assistant Manager on the night of the robbery and was in the office balancing the receipts and money taken in on that date. In the store at the time the robbers entered were the store manager, Mr. Oscar Clow, a part-time boy, Marshall Nichols, and a young couple by the name of Mr. and Mrs. Shields.

Mr. Eiseman testified that two of the Negroes walked in the office where he was balancing the money and that the big man, Deandre Poe, asked him where the money was and he was going to show him that the money was in the safe which was open at the time. Evidently he didn’t respond as fast as Poe thought he should have and Poe struck him in the side with the shotgun. Poe then told him to go down to the ground floor where the third gunman had huddled the manager, part-time employee, and Mr. and Mrs. Shields in a group. As he was leaving the office, he saw Poe and the other Negro getting the money from the safe.

When Mr. Eiseman got to the ground floor, the third Negro had the shotgun pointed at the head of the part-time employee. This gunman ordered all of them to go to the back room and lie on the floor. When they got to the back room, Mrs. Shields was slow in getting on the floor and Mr. Shields turned around and the gunman hit him over the head with the shotgun, breaking the gun. After being struck Mr. Shields fell to the floor. This, Negro was subsequently identified as appellant. Appellant stayed in the back room about thirty seconds and during this time he threw a metal float weighing about 30 pounds on top of him and he then pulled the door to and left.

Mr. Eiseman stated the robbery lasted from five to eight minutes and during this time he observed the robber for at least four minutes. After appellant left he got up and went to the office telephone and called the police and gave them a description of the robbers. He told them the large man was about six feet two inches tall, weighed about 230 to 235 pounds, with broad face and big cheeks and real thick lips; that he had a wide nose and a very deep voice. The large man was in the office with him. He did not get a good look at the other man in the office but he was tall and skinny. He stated that the man down by the cash register was about six feet tall and weighed about 180 pounds. That he had on wire-rimmed glasses, wore a small mustache and his hair was braided.

Marshall Nichols testified that he was 18 years of age and was employed by A & P. He stated that he was in the store when three black males came in with shotguns. He said he knew one of the black men and that his name was Deandre Poe. That he had seen him on several occasions prior to the night of the robbery. He further testified that when the three robbers entered the store, he was sacking groceries. They were running when they came in the store and one man grabbed him by the arms and told him not to look at him. That this man kept the shotgun pointed at his head. He stated that he got a side glance at this man and he had on glasses and his hair was braided. He said the men were in the store about eight to ten minutes, and that he gave the police a description of the man holding the gun on him and the way his hair was fixed and the kind of glasses he was wearing.

Mr. Eiseman made a positive in-court identification and said he could not be mistaken that Kent was one of the three robbers and the one that stayed at the cash register while Poe and the other man robbed the safe in the office.

Appellant did not testify but offered one witness in support of his alibi. This witness testified that he saw Kent on two occasions on February 2, 1973, at the Municipal Airport; that he first saw him between 4:30 and 5:00 p. m. and again at seven o’clock.

There was no motion for a new trial; there was no request for the affirmative charge; there were no exceptions reserved to the oral charge of the court to the jury; but there was a motion to exclude the state’s evidence. This motion was overruled.

There is only one issue submitted on this appeal and that is the insufficiency of the evidence to establish appellant’s guilt. This claim is based on the fact that the state produced only one witness who could identify appellant as one of the participants in the robbery.

In this jurisprudence we do not travel on the numerical number of witnesses.

This identical question was squarely presented and precisely answered in the case of Bray v. State, 47 Ala.App. 308, 253 So.2d 531, where the late and lamented Presiding Judge Price, writing for a unanimous court, said:

“The testimony of the victim, if believed to the required degree, is sufficient to sustain a conviction of robbery. To sustain such a charge it is not necessary that the stolen property be in actual physical contact with the person of the victim, but it is sufficient if the property is taken from his presence or personal protection. Cobern v. State, 273 Ala. 547, 142 So.2d 869. Further, in an indictment for robbery, ownership of stolen property is properly laid in the party in possession, either as owner conditional, or bailee, or agent. Howell v. State, 26 Ala.App. 612, 164 So. 764.”

In Smith v. State, 53 Ala.App. 27, 296 So.2d 925, we said:

“A fact may be established as firmly by the testimony of one witness as by the testimony of an entire community.”

There is no reversible error in the record and the judgment of conviction is affirmed.

Affirmed.

All the Judges concur, except CATES, P. J., not sitting.