text:
    INSURANCE COMPANY OF NORTH AMERICA v. Gilbert W. THOMAS and State Farm Mutual Automobile Insurance Company.
    Civ. 762.
    Court of Civil Appeals of Alabama.
    July 7, 1976.
    Rehearing Denied Aug. 18, 1976.

      McDaniel, Hall, Parsons & Conerly, Birmingham, for appellant.
    Rives, Peterson, Pettus, Conway, Elliott & Small, Birmingham, for appellees.
   BRADLEY, Judge.

This is a case involving Alabama’s statutory requirement of uninsured motorist insurance coverage, Title 36, Section 74(62a), Code of Alabama 1940. Defendant, Insurance Company of North America (INA), appeals from a judgment of the Circuit Court of Jefferson County, awarding plaintiff-appellee Thomas $8,062.50 including interest.

The circumstances involved are as follows:

On May 28, 1974 Thomas was driving a truck owned by Grady Simmons and leased to Eagle Motor Lines, Inc., when he was involved in an accident with Steven Gillespie, an uninsured motorist. Thomas suffered substantial bodily injury. The trip on which Thomas was then embarked had been dispatched by Eagle; Thomas had no written contract with Eagle but was operating under an agreement whereby Thomas received twenty percent of payment received for deliveries, Simmons sixty-five percent, and Eagle fifteen percent. Prior to May 28, Thomas had received one check in payment of his percentage: the check came from Grady Simmons. Prior to working for Simmons, Thomas had entered two other contractual relationships which had kept him in regular contact with Eagle since 1968: for a time Thomas had leased his own truck to Eagle; later he had driven for Harold Phillips, whose truck was leased to Eagle. Thomas has never owned stock in or been an officer of Eagle.

At the time of the accident, Thomas had a policy with State Farm Mutual Automobile Insurance Company which provided uninsured motorist benefits. Eagle had a liability insurance contract with INA which did not contain an uninsured motorist endorsement, and which was an excess policy with a $25,000 self-retained limit.

Thomas initiated the present case on August 19, 1974 by filing suit claiming damages for bodily injury against his own insurer, State Farm. Subsequently, State Farm filed a third-party complaint against Gillespie.

On January 19, 1975 the complaint was amended to add INA as a defendant. The amendment alleged that Thomas was a third-party beneficiary of the INA policy carried by Eagle, that the INA policy covered the truck driven by Thomas on May 28, 1974, and that the state law of Alabama required the INA policy to contain provisions for uninsured motorist coverage in Thomas’s favor.

The defendant, INA, filed a motion to dismiss, which was overruled on January 21, 1975.

INA then filed its answer to plaintiff’s complaint denying that the plaintiff was a beneficiary to the contract issued to Eagle by INA; denying that uninsured motorist protection for the plaintiff was written into said policy under the law of Alabama; denying that the plaintiff was entitled to recover damages from INA; setting forth that the contract between INA and Eagle was strictly an excess policy over and above the $25,000 self-retained limits; that the defendant was not an insured under said excess contract and was therefore not entitled to uninsured motorist protection; denying that the law of Alabama required uninsured motorist coverage for the plaintiff under this particular contract of insurance; and alleging that the uninsured motorist was not guilty of negligence, but that the plaintiff was himself guilty of contributory negligence.

INA filed a motion for summary judgment on October 31, 1975, reiterating several of the grounds contained in its answer. Additionally, INA submitted the affidavit of William C. Wilson, the INA agent who negotiated Eagle’s policy. The affidavit stated that there was a specific rejection of uninsured motorist coverage by Eagle, and no premium for uninsured motorist coverage was paid.

On November 18, 1975 the case came up for trial. Before striking a jury, a hearing on the motion for summary judgment was heard, including testimony from Thomas and Wilson, and introduction, over INA’s objection, of a 1965 memorandum from the superintendent of insurance requiring that rejection of uninsured motorist coverage be in writing. The trial judge overruled the motion for summary judgment.

Subsequent to that ruling, various cross claims and counterclaims were filed by the parties. INA’s counterclaim against Thomas was stricken prior to the trial on the merits of the case.

At the trial before a jury Thomas repeated most of the testimony he had given at the summary judgment hearing. There was also additional testimony, stipulations, and motions. Verdict was rendered in the amount of $7,500 plus $562.50 interest.

State Farm then moved for judgment, alleging that they provided excess coverage only, and that INA was primarily liable. The trial judge held that INA was primarily liable for the first $10,000 of the verdict and entered judgment accordingly. INA excepted to the judgment.

This appeal calls for review only of questions relating to the coverage of the INA policy. These questions below were determined by the trial judge and not by the jury. We do not address ourselves to matters contained in the jury verdict.

On appeal INA argues first that the Alabama uninsured motorist coverage statute, Title 36, Section 74(62a), Code of Alabama 1940, does not provide that such coverage is implicitly written into the policy in question, which makes no express mention of such coverage. The statute says, in pertinent part:

“No automobile liability or motor vehicle liability policy insuring against loss resulting from liability imposed by law for bodily injury or death suffered by any person arising out of the ownership, maintenance or use of a motor vehicle shall be delivered or issued for delivery in this state . . . unless coverage is provided therein or supplemental thereto, under provisions approved by the commissioner of insurance, for the protection of persons insured thereunder from owners or operators of uninsured motor vehicles . . . provided, that the named insured shall have the right to reject such coverage; . . ”

It is well established that if the statutory conditions are present, the courts will infer the existence of minimum uninsured motorist coverage notwithstanding the absence of a provision for such coverage in the insurance policy itself, Cline v. Aetna Ins. Co., 317 F.Supp. 1229, (S.D.Ala.1970).

The trial judge concluded that all of the conditions are present in the case now on appeal. INA argues that the trial judge’s conclusion is erroneous in several respects.

The text of Title 36, Section 74(62a) indicates that the absence of the named insured’s rejection of coverage is one such necessary condition. INA contends that such a rejection took place, and cites the affidavit and testimony of its agent, Wilson. Wilson testified that the question of uninsured motorist coverage did arise during the negotiations of the policy between INA and Eagle. According to Wilson, Eagle’s representative verbally rejected the coverage. There is no testimony of this representative to corroborate Wilson’s testimony as to the transaction, although it is stipulated that Eagle never paid any premiums for uninsured motorist coverage.

Wilson further testified that he did not have power to bind INA, and that there are no notes or written memoranda concerning rejection contemporary with the execution of the contract.

The aforementioned memorandum of the superintendent of insurance requires rejection of coverage to be in writing. The requirement of writing does not appear in the statute, but is a matter of administrative interpretation. The statute does give the insurance commissioner authority to approve provisions governing statutory uninsured motorist coverage. Such provisions must be consistent with the statute, State ex rel. Carmichael v. State Bd. of Adjustment, 249 Ala. 542, 32 So.2d 216, and the requirement that rejection be in writing is consistent: it is merely a restatement of common law unaffected by the statute regarding that particular aspect of the contract. Title 36, Section 74(62a) lays down a rule of construction requiring courts to interpret all motor vehicle liability insurance policies as providing the statutory coverage unless an agreement to reject on the part of the named insured is in evidence. The pa-rol evidence rule, prevailing at common law, and codified as regards insurance policies at Title 28A, Section 330, Code of Alabama 1940, precludes making inquiry into prior or contemporaneous verbal agreements not incorporated in the written instrument or related papers in order to construe the terms of the policy, Alabama Farm Bureau Mut. Cas. Ins. Co. v. Adams, 289 Ala. 304, 267 So.2d 151. Thus, the memorandum from the superintendent merely spells out a rule which would be applied by the courts in any event. Eagle’s purported verbal rejection prior to executing the policy, and not evidenced by a writing contained in or coordinate with the policy, is invalid.

INA next argues that it is illogical to impute the statutory coverage into the excess policy presently in controversy because the statutory coverage is the minimum contemplated by Title 36, Section 74(46), Cline v. Aetna, supra. The statute therefore provides only the first $10,000 of coverage, while INA’s policy expressly covers only damages in excess of $25,000. INA’s argument is not well taken. Its policy restrictions limit only the contractual coverage, while the $10,000 coverage for damage caused by uninsured motorists is entirely governed by statute. Absent an effective rejection, this statutory coverage in the amount of $10,000, subject to neither deductible or self-retained limits, is a provision of every motor vehicle liability insurance policy delivered in Alabama regardless of the policy’s limitations on other aspects of coverage.

INA also argues that Thomas is not an “insured” under the terms of the statute or the policy, and that recovery is therefore barred. We agree and hold that this issue is dispositive. Title 36, Section 74(62a) has been authoritatively construed as conferring uninsured motorist coverage in favor of persons who are insured under the general liability coverage expressed in the relevant policy, State Farm Automobile Ins. Co. v. Reaves, 292 Ala. 218, 292 So.2d 95. In the present case Thomas is not insured under the general liability coverage. The INA policy defines “Persons or Entities Insured” as the following:

“(a) The Named Insured:
“(b) Each of the following is an insured under this policy to the extent set forth below:
“The Insured, as referred to herein, shall include: all subsidiaries and affiliates and shall also include officers and directors of said companies, subsidiaries and affiliates, while acting within the scope of their duties as such officers and directors.” (Emphasis supplied.)

Eagle is the named insured. No contention is made that Thomas is a subsidiary of Eagle or an officer or director of any subsidiary or affiliate of Eagle. Instead, the trial court based its finding of coverage on its conclusion that Thomas was an affiliate of Eagle. We hold that this conclusion is erroneous, as it conflicts with the permissible interpretation of the word “affiliate” as used in this policy. First, we believe that the term “affiliate” is used here to denote a business organization, not an individual. Any other construction would render the immediately following reference to officers or directors of affiliates nonsensical, as an individual cannot have officers or directors of his person. Second, we hold that Thomas was, under the terms of the existing arrangement with Eagle and Grady Simmons, an employee of Simmons, Harris v. National Truck Service, 56 Ala.App. 350, 321 So.2d 690. Absent a definition in the policy which includes such circumstances, the fact that Thomas’s employer had entered into a contract to provide services to Eagle is too remote a nexus to hold that Thomas was himself “affiliated” with Eagle. While doubtful terms in an insurance contract should be construed in insured’s favor, no strained construction should be indulged to raise doubt, Home Loan & Finance Co. v. Fireman’s Fund Ins. Co., 221 Ala. 529, 129 So. 470.

In light of our finding that INA was not an uninsured motorist insurer of Thomas, we reverse the trial judge’s finding that INA is the primary insurer and thus first liable. This renders the entire judgment against INA uncollectible. We also reverse the trial judge’s rendition of judgment against Gillespie in favor of INA, which was similarly based on the trial judge’s finding of coverage.

We affirm all other aspects of the decree.

AFFIRMED IN PART; REVERSED AND RENDERED IN PART.

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


source: Caselaw Access Project

author: BRADLEY, Judge.

license: Public Domain

text:
    Charles W. WILLIAMS v. Charles A. BOSWELL, Commissioner of Revenue, State of Alabama.
    Civ. 727.
    Court of Civil Appeals of Alabama.
    July 21, 1976.
    Rehearing Denied Aug. 18, 1976.
    Charles W. Williams, pro se.
    William J. Baxley, Atty. Gen. of Ala., Willard W. Livingston, Counsel, Dept, of Revenue and Asst. Atty. Gen. of Ala., Ron Bowden, Asst. Counsel, Dept, of Revenue and Asst. Atty. Gen. of Ala., for appellee.
   BRADLEY, Judge.

This is an appeal from the Circuit Court of Marshall County. The proceeding was initiated when the appellant, Charles W. Williams, filed a complaint in that court challenging the validity of the schedule of assessment values for motor vehicles for ad valorem tax purposes prepared by the ap-pellee, Charles A. Boswell, as Commissioner of Revenue for the State of Alabama. Williams sought to bring the action not only for himself but also for all other motor vehicle owners of Marshall County. Boswell responded by moving without supporting affidavits for a summary judgment, basing his motion on exhibits attached to the said motion. These exhibits consisted of an order to the United States District Court for the Middle District of Alabama dated June 29, 1971 (Weissinger v. Boswell, 330 F.Supp. 615); an order of that same court dated March 8, 1974; Acts 116, 160 and 166, Acts of Alabama 1971, Third Special Session; an opinion of the Alabama Attorney General dated August 26, 1974; and a copy of the Motor Vehicle Assessment Schedule Manual prepared by Boswell as Commissioner of Revenue. Williams did not file affidavits or any other evidence to refute the exhibits filed by Boswell.

At the hearing on the motion for summary judgment, the trial court had before it Williams’ complaint and Boswell’s motion with attached exhibits. The court found that Boswell was entitled “. . . to 'a summary judgment as a matter of law.”

Williams moved the trial court to set aside the summary judgment. His motion was denied. Williams then asked the trial court to vacate the summary judgment; that motion, too, was denied. Subsequently an appeal from the award of summary judgment and assessment of costs against Williams was perfected to this court.

The sole question for decision is whether the trial court’s award of summary judgment was appropriate. We think it was.

Rules 56(b) and (c), ARCP, provide:

“(b) For Defending Party. A party against whom a claim, ... is asserted . . may, at any time, move with or without supporting affidavits for a summary judgment in his favor as to all or any part thereof.
(c) Motion and Proceedings Thereon. The motion shall be served at least 10 days before the time fixed for the hearing. The adverse party prior to the day of hearing may serve opposing affidavits. The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. A summary judgment, interlocutory in character, may be rendered on the issue of liability alone although there is a genuine issue as to the amount of damages.”

In brief, Boswell says that he is required by state law and a federal court order to equalize assessment rates for ad valorem tax purposes of all real and personal property in the State of Alabama. See Acts No. 116, 160 and 166, supra, and Weissinger v. Boswell, D.C., 330 F.Supp. 615. Williams contends that only the property owner, tax assessor and county board of equalization had the authority to assess the value of property in Marshall County in the year 1975.

In Weissinger v. Boswell, supra, the U.S. District Court said:

“The State Department of Revenue is charged with the responsibility of equalizing the various county equalization board assessments and its own assessments on railroad and utility property, so that all taxable property in the state will be assessed in accordance with Sections 211 and 217. Sections 131 and 133 of Title 51 of the Code of Alabama authorize the Department of Revenue to exercise general and complete supervision over and control of valuation, equalization, and assessment of property ‘to the end that all taxable property in the state shall be assessed and taxes shall be imposed and collected thereon in compliance with the law, and that all assessments on property . . . shall be made in exact proportion to the fair and reasonable market value thereof.’
“The defendant [Charles A. Boswell] as the chief executive officer of the Department of Revenue, thus has the responsibility for seeing that all taxable property in the state is assessed at uniform assessment ratios for ad valorem tax purposes. . . ."

In March 1974 this same District Court in a follow-up opinion and order in the same case, said:

“. . . [T]he State Department of Revenue, under the supervision of defendant Boswell as Commissioner of Revenue, has general and complete supervision over and control of valuation and assessment of property to the end that all taxable property in the state shall be assessed and taxes imposed and collected thereon in compliance with law and that assessments be made in exact proportion to fair and reasonable market value.”

In 1971 the Alabama Legislature passed an act, i. e., Act No. 160, Acts of Alabama, Third Special Session, placing on the Department of Revenue and its commissioner the responsibility for implementing and administering a statewide property reappraisal program for ad valorem tax purposes. That same act directed the Revenue Department to prescribe procedures to be followed, standards to be met, forms to be used, records to be kept, and reports to be filed. The act also provided that the Revenue Department, when reasonably satisfied that the property in a county had been appraised at its fair and reasonable market value as required by Act No. 160, certify such fact to the board of equalization and tax assessor of said county. The amount certified shall be the basis of the tax for the following year.

In compliance with the federal court orders and applicable state law, i. e., Acts 160, 116 and 166, the Department of Revenue prepared a uniform motor vehicle assessment schedule to become mandatorily effective for the tax year beginning October 1, 1974, and to be used each year thereafter by the tax assessors and license commissioners throughout the state in assessing motor vehicles for ad valorem tax purposes.

Plaintiff’s assertion, in his complaint and in his brief here, that the Revenue Commissioner has no authority to establish uniform motor vehicle assessment values to be used in Marshall County for the tax year beginning October 1, 1974, is clearly contrary to the specific directives of the state law and the federal court orders, and the Marshall County Circuit Court properly held that Boswell was entitled to judgment “. as a matter of law.”

AFFIRMED.

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


text:
    Maurice Macon LEE v. Betty Mae Sewell LEE, a/k/a Betty Mae Holder.
    Civ. 865.
    Court of Civil Appeals of Alabama.
    Sept. 15, 1976.

      J. C. Norton, Selma, for appellant.
    Morris & Faile, Selma, for appellee.
   BRADLEY, Judge.

This child custody case comes to us from the Circuit Court of Dallas County.

The parties to this proceeding were divorced by that court on January 23, 1974. Custody of their children was placed in the mother. Some two months later the mother requested that the father take the children and care for them. Her reason for doing so was that she was destitute and had no prospects for future income. The father kept the children and cared for them for about two years. During the time the father had physical custody of the children they resided in Dallas County, Alabama.

In October 1975 the mother, acting pursuant to the decree granting her legal custody of the children, attempted to reclaim their physical custody and take them to her home in Illinois. Upon learning of the mother’s desire to remove the children from Alabama, the father petitioned the Dallas County Circuit Court to modify the previous custody decree by placing the children’s custody in him. He also asked that temporary custody be awarded him pending the decision on his petition for modification. This was done.

A hearing was held by the court on the petition for change of custody and answer thereto. At the conclusion thereof the court ordered that custody of the children remain with the mother, provided that she post a $500 bond to assure the father access to the children according to the visitation schedule established by the same order. Appeal from this order was perfected by the father to this court.

The evidence revealed that the circumstances of the mother, appellee herein, have substantially improved since her divorce. In May 1975 she remarried and is now living on an Air Force base in Rantoul, Illinois with her husband, a staff sergeant in the Air Force, and his young daughter by a previous marriage. Particularly she says that she is now in a position to provide the children with the medical and dental care which they badly need.

The appellant, too, has remarrie'd. The evidence tends to show that he and his wife have provided for the children to the best of their ability but that due to their limited financial status the care has not always been adequate. Appellant has incurred a substantial medical debt and with the expected birth of a baby faces the prospect of more medical expenses. There is no question that appellant and his wife love the children and treat them well.

During the course of the modification hearing, counsel for appellant attempted to adduce testimony of appellee’s adulterous conduct prior to the divorce of the parties. The trial court refused to allow this evidence.

A divorce decree fixing the custody of children is conclusive of the interests of the children and the rights of the parents, so long as the status at the time of the decree remains without material change or unless pertinent facts existing but undisclosed at the time of the decree are brought forth. Carter v. Harbin, 279 Ala. 237, 184 So.2d 145 (1966).

The person asking the court to modify a previous custody decree has the burden of showing that circumstances have so changed as to warrant a modification, Jenkins v. Jenkins, 45 Ala.App. 500, 232 So.2d 680 (1970). Furthermore, the court must be ever mindful that each case rests on its own particular facts and circumstances and that the welfare of the children is always of paramount importance. Rowe v. Rowe, 45 Ala.App. 367, 231 So.2d 144 (1970).

In the case at bar the father had the burden of proving that conditions had changed sufficiently since the last decree in order for custody to be placed in him. The trial court in effect ruled that he had failed to sustain this burden when it ordered that custody of the children be in the mother.

However, we are precluded from pursuing this aspect of the case, for the second issue raised by appellant is dispositive of this appeal. He says that the case should be reversed for the refusal of the trial court to allow testimony of the mother’s adulterous conduct prior to the divorce. Appellant contends that such testimony would have been relevant to the question of the mother’s fitness to have custody of the children.

Appellee’s position is that the trial court acted properly in refusing to hear such testimony. Although the appellant knew of this evidence at the time of the original divorce proceeding, alleging adultery as a ground of divorce in his complaint, he failed to present it to the trial court when the issue of custody of the children was first determined and instead agreed that appel-lee was the proper person to have custody of the children. She contends that appellant should not now be allowed to use that evidence to cast a cloud over her right as a mother to physical custody of her children.

In Anonymous v. Anonymous, 277 Ala. 634, at 639, 173 So.2d 797, at 801 (1965), the supreme court said:

“. . . [F]acts which were known but not disclosed to the trial court in the original proceeding may be considered in a proceeding for modification, for neither the silence of the parties to the original proceeding nor any agreement entered into by them can prevent a court from looking after the interests of its ward.”

In that case the trial court heard evidence at a custody modification hearing of the appellee’s conduct prior to her divorce from appellant, but the judge indicated in his decree that none of the evidence which related to conduct prior to the original custody decree and which was known to appellant at that former time could be considered in determining whether to modify that decree.

Anonymous was followed in Britt v. Britt, 281 Ala. 217, 201 So.2d 54 (1967). There the trial court refused to permit the appellant to adduce any evidence of the appellee’s conduct during her marriage to the appellant on the ground that it was not relevant to the issue of custody subsequent to the divorce. In both cases the supreme court held that the trial court erred to reversal.

In the case at bar the judge refused to hear evidence of appellee’s alleged adultery prior to divorce from appellant, stating he would hear and consider only evidence relating to conditions and circumstances since the divorce decree. Such a ruling is contrary to the enunciated rule in the cited cases and constitutes, as held in those cases, reversible error. We are not to be understood, however, as saying that such evidence would have been dispositive of the issue before the court, but only that the court should have heard and considered that evidence along with all of the other evidence presented to the court before making a decision.

For such error committed by the trial court, this case is reversed and remanded for a new trial.

REVERSED AND REMANDED.

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


author: WRIGHT, Presiding Judge.

text:
    The DEPARTMENT OF INDUSTRIAL RELATIONS of the State of Alabama v. Coy JACO.
    Civ. 882.
    Court of Civil Appeals of Alabama.
    Sept. 15, 1976.

      Arthur J. Reid, Gen. Counsel, State of Alabama, Industrial Relations Dept., Montgomery, for appellant.
    No brief for appellee.
   WRIGHT, Presiding Judge.

The Department of Industrial Relations appeals from an order of the trial court awarding unemployment compensation to claimant Coy Jaco. We affirm.

Claimant was employed by Lee Brothers, Phelps Dodge Brass Company of Anniston until July 9, 1975. Claimant had been absent from work twice without reporting his absence, had previously been suspended for absenteeism, and had been warned he would be discharged if he were absent again without reporting his absence. On July 9 his employment was terminated because he was late to work.

After his discharge claimant sought employment each week until he secured work on November 1, 1975. Claimant was without work for 16 weeks.

After an unsuccessful appeal to the Board of Appeals from the order of the Director of the Department of Industrial Relations denying compensation, claimant filed his appeal in Marshall County Circuit Court on October 1, 1975. The court, sitting without a jury, heard all the evidence on March 2, and on April 14 entered its order:

“[T]hat Def. should have been penalized under T.26, S.314 C (3) [sic] and not under T.23, 314 C(2) [sic] in that court finds his misconduct was not deliberate but as a result of negligence or carelessness, and that a penalty of 5 weeks is appropriate under all circumstances, it is therefore considered that claimant have and recover unemployment compensation benefits at rate of $90 per week for a period of 11 weeks or a total of $990. . . ."

From the context of his order and the nature of this case it is evident the trial judge based his decision on Subsections C(2) and C(3) of Title 26, Sec. 214, Code of Alabama (1940).

The Department of Industrial Relations appeals on three grounds: (1) Claimant was not willing, able and available for work; (2) Claimant’s appeal did not adequately apprise the Department of his complaint so that it could prepare a defense; and (3) Claimant was disqualified under Sec. 214 B because he left work “voluntarily without good cause connected with such work.”

Claimant-appellee has not filed a brief, but we have carefully considered all the evidence at the trial upon the theory that appellee is interested in having his judgment affirmed. Department of Industrial Relations v. Meeks, 40 Ala.App. 231, 110 So.2d 643, and cases cited therein.

In regard to the Department’s first ground of appeal, the only evidence before the trial court was the testimony of claimant that he had applied for employment after he was terminated. In fact, claimant was the only witness at the trial of this cause. Appellant had the opportunity to present evidence at that time to contradict or counter this testimony but failed to do so. All the evidence shows that claimant was available for work and thus eligible for benefits under Sec. 213 of Title 26.

In regard to the Department’s second contention, we do not feel the trial judge erred in overruling the motion to dismiss.

The appeal to the circuit court of the decision of the Appeals Board authorized by Sec. 221 of Title 26 is to a trial de novo. Though the statute provides that the notice of appeal “shall state the grounds upon which review is sought,” it appears to us that all that need be stated is that the decision of the Board is incorrect under the facts or the law. As appeal is to a trial de novo, there is not a review on appeal, but in fact, another trial. We perceive no reason for requiring presentation of particular errors or issues in the notice of appeal in such cases. Dismissal of appeal should not be granted for reasons of particularity in pleading. The motion to dismiss on such grounds was properly overruled.

The Department asserts its third ground for reversal for the first time on this appeal. It would require a very strained interpretation of these facts to hold that the discharge for absenteeism or tardiness was tantamount to voluntarily leaving employment without good cause under Sec. 214 B, although several jurisdictions follow such a rule. 58 A.L.R.3d 674, 690-95.

The Unemployment Compensation Act is in the nature of insurance for the unemployed worker and is intended to be a remedial measure for his benefit. Therefore, it should be liberally construed in favor of the claimant and the disqualifications from benefits should be narrowly construed. Department of Industrial Relations v. Stone, 36 Ala.App. 16, 53 So.2d 859; Holmes v. Cook, 45 Ala.App. 688, 236 So.2d 352. The claimant has the burden of proving he is eligible under Sec. 213 and not disqualified under Sec. 214. State Depart ment of Industrial Relations v. Thomas, 55 Ala.App. 712, 318 So.2d 739.

The provisions of Sec. 214 C with which we are concerned in this case disqualify an individual for unemployment compensation:

“(2) If he was discharged from his most recent bona fide work for actual or threatened deliberate misconduct committed in connection with his work (other than acts mentioned in paragraph (1) of this subsection) after previous warnings to the individual. .
“(3) If he was discharged from his most recent bona fide work for misconduct connected with his work (other than acts mentioned in paragraphs (1) and (2) of this subsection).

Prior to 1971 when the above provisions were enacted, No. 88, Sec. 7, [1971] Acts of Alabama 354, there was a provision similar to the current Subsection C(3):

“2. For the week in which he has been discharged for misconduct connected with his work (other than acts mentioned in subsection (1) of this subdivision) . ..”

No. 290, Sec. 5 [1965 Regular Session] Acts of Alabama 559.

So far as we can determine, this is the first case appealed under Subsection C(3). And apparently only one case was appealed under the predecessor to that section. Department of Industrial Relations v. Rich, 42 Ala.App. 80, 152 So.2d 692.

In Rich, supra partial unemployment compensation was awarded to Rich, who had been discharged for misconduct under the predecessor to Sec. 214 C(3). The discharge was the result of an accident involving reckless driving of his ice cream truck. It seems unlikely that the changes enacted in 1971 were intended to change the result in that 1963 case and thereafter deny benefits in such situations. Under the facts and circumstances of this case claimant’s misconduct does not merit a more severe penalty than was exacted against Rich.

When a case has been heard orally before the trial judge, his findings are clothed with a presumption of correctness unless plainly contrary to the weight of the evidence. Department of Industrial Relations v. Rich, supra; Zac Smith Stationery Co. v. Reynolds, 39 Ala.App. 389, 101 So.2d 573.

Construing the evidence most strongly in favor of claimant, the trial court determined that claimant was discharged for misconduct connected with his work under Sec. 214 C(3) and entitled to reduced benefits. (See 58 A.L.R.3d 674, 685-90 for jurisdictions holding tardiness or absenteeism without excuse or notice constitute willful misconduct within the meaning of their respective statutes.) Whether such misconduct was totally disqualifying under Sec. 214 C(l) or C(2) or was misconduct under C(3) was for the trier of fact according to the evidence. From the record before us, we cannot say that the finding of the trial court was clearly wrong. We therefore affirm the award of benefits to claimant.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


author: TYSON, Judge.

text:
    Jackie OGLESBY v. STATE.
    7 Div. 387.
    Court of Criminal Appeals of Alabama.
    Jan. 20, 1976.
    Rehearing Denied Feb. 17, 1976.

      Bill Thompson, Talladega, for appellant.
    William J. Baxley, Atty. Gen. and William A. Davis, III, Asst. Atty. Gen., for the State.
   TYSON, Judge.

The appellant, in a two-count indictment, was charged with perjury, pursuant to the provisions of Title 14, Section 377, Code of Alabama 1940. The State dismissed Count II, and the jury returned a verdict of “guilty as charged.” The trial court then entered judgment, setting sentence at five years imprisonment.

This case arose from an investigation by the Sheriff’s Department in Talladega County into a homicide, which allegedly took place on September 9, 1974, at Davidson’s Grocery about three miles out the Ashland Highway in Talladega County, Alabama.

Succinctly stated, in the course of the investigation, and based on reports given to Sheriff H. E. Mitchell of Talladega County, the appellant was called into the Sheriff’s Office at about 4:25 on the afternoon of October 31, 1974. At this time, Mrs. Sally H. Mitchell, Secretary to the District Attorney, Honorable W. E. Hollingsworth, Jr., was brought into the Sheriff’s Office, and she there administered to the appellant, Jackie Oglesby, an oath after the appellant was given a full Miranda warning by Sheriff Mitchell. At that time, the appellant gave a full statement in which he admitted driving one Douglas Bridges to Davidson’s Grocery, about 3:30 on the afternoon of September 9, 1974, where they stopped and Bridges went inside to get some beer. The statement indicates that Oglesby heard a shot and saw Bridges running out the door with a paper sack and a pistol in his hand. He stated that Bridges jumped in the car and stated “Let’s go,” and the parties drove away toward Ashland.

Oglesby, in his statement, indicates that Bridges told him “I shot Davidson,” that he replied to Bridges “I don’t want no part of this ... I don’t want none of the money.” Bridges stated, “I didn’t mean to do it.” Oglesby stated that they drove near a creek and stopped, and that Bridges got out and walked toward the creek. When Bridges returned, he no longer had the pistol, but did have the sack and said, “Let’s go home.” He stated that they drove back in the general direction of Talladega, near Bridges’ home, and that they heard an ambulance, that they then saw police cars go by, and that they followed them out toward Davidson’s store. He said that one of the officers asked them to move their car so that they could put a body in the ambulance, that someone had been knocked in the head. He said after moving his car the two men got in his automobile and drove back to Talladega.

The statement also indicates that the two men were picked up about two weeks later by the City of Talladega police, and while in jail, Bridges called to him from his cell and said, “If you would have hit him harder, I would not have had to kill him,” to which Oglesby replied, “Don’t talk about it, somebody will hear you.”

The homicide case was called for preliminary hearing on the 23rd of December, 1974, before Judge John Coleman. The appellant, Jackie Oglesby, was at this time placed under oath, and in this testimony he recanted, and stated that he had lied when he told Sheriff Mitchell that “he and Douglas Bridges had been out to Davidson’s Store about 3:30 on the afternoon of September 9, 1974,” and that all that was stated in the statement was not true, except for the part where he and Bridges went out there late that afternoon after hearing an ambulance and saw the sheriff bringing a body out on a stretcher.

This transcript of the preliminary hearing also shows that in view of Oglesby at the preliminary hearing, the State would not be able to make out a prima facie case against Douglas Bridges and moved the court to dismiss the case, which was granted.

The two-count indictment in the case at bar charges the appellant with willfully making a false statement under oath at preliminary hearing before Judge Coleman when he stated that he had only been out to Davidson’s Grocery on one occasion and admitted giving the District Attorney’s Office, through the sheriff, false statements on a prior occasion. Count II charges the appellant with perjury in giving a false statement under oath before Mrs. Sally H. Mitchell and Sheriff A. J. Mitchell in which he implicated himself and Douglas Bridges in the robbery and homicide at Davidson’s Grocery in Talladega County on September 9, 1974.

The complete transcript of the preliminary ’ hearing before Judge Coleman was stipulated into the evidence by the parties through their attorneys, and Judge Coleman testified that the appellant was under oath when he testified at preliminary hearing. Also, identified by Judge Coleman were an affidavit and warrant sworn out before him on October 31, 1974, by one Melvin L. Davidson, which charged Jefferson Douglas Bridges with the first degree murder of Harold Purvis Davidson by shooting him with a pistol.

Mrs. Sally Mitchell testified that she was the wife of one James Mitchell, and for twelve years had been employed as secretary to the District Attorney of Talladega County, Alabama. She stated that she and her husband were not related in any way to Sheriff H. E. Mitchell. She testified that shortly before 4:00 on the afternoon of October 31, 1974, Sheriff Mitchell asked her to come into his office to take a statement, and that she went in, that the sheriff brought in the appellant, Jackie Oglesby, and that she got everything ready to take the statement. She testified that the appellant dictated a statement to her, but before taking the statement Sheriff Mitchell read the appellant the full Miranda warning and also asked him if he was doing this of his own accord and if there had been any threats made to him. The appellant replied in the affirmative that he was making the statement of his own accord and stated that there had been no threats made to him. Mrs. Mitchell then had the appellant raise his right hand and she administered a full oath (R. p. 74) before taking down the appellant’s statement. Mrs. Mitchell further testified that at the conclusion of the statement, and after having typed it up, she administered the oath a second time after giving the appellant an opportunity to read the statement before he signed it. The appellant’s full statement, as dictated to Mrs. Mitchell on October 31, 1974, and signed by him in her presence and in the presence of Sheriff Mitchell, was then placed in evidence without objection.

After signing this statement, Mrs. Mitchell testified that Melvin L. Davidson, the father of the deceased, Harold Davidson, came into the Sheriff’s Office, and that the appellant then got up and extended his hand to shake hands. He asked Mr. Davidson not to have any hard feelings, at which time Mr. Davidson asked Oglesby the question, “Did that boy kill my boy,” to which the appellant replied, “Yes,” and further that “You came out to the car when we had come back the second time, and the boy sitting by the window where you came to was the boy.!’ This statement was duly corroborated by the testimony at trial through Sheriff H. E. Mitchell, and also the District Attorney’s secretary, Mrs. Mitchell, who took the statement. The sheriff testified that he had had information through an inmate at the jail, one John Williams, and also through a Mrs. Allen, who had overheard the appellant and Bridges talking, that the two of them were involved in the Davidson’s Grocery robbery, and this was the basis of his talking with the appellant on the afternoon of October 31, 1974. At the close of the State’s case, the appellant made a motion to exclude and also requested, in writing, the affirmative charge, both of which were overruled.

At this point in the proceedings, it was determined that the mother of the appellant had come into a restroom inside the jury room during a recess, and while in there had made the statement within the hearing of several jurors, “I am Jackie’s mother, he don’t lie, the State lied.”

At this point the court called each individual juror and asked each if they had overheard this statement, and if they had overheard the statement, could they put this completely out of their minds before reaching a verdict.

Each of the twelve jurors testified that they could put this out of their mind in arriving at their verdict, and that they would follow the instructions of the trial judge in this regard. Not all of the jurors had overheard Mrs. Oglesby’s statement, but several had. After a full hearing on this question, the trial court then overruled the appellant’s motion for a mistrial based on this incident (R. p. 126). The State then elected to nolle prosse and dismiss Count II (R. p. 130) (the testimony in the sworn affidavit), and the cause was submitted to the jury.

I

Former Presiding Judge Carr, in Padgett v. State, 36 Ala.App. 355, 56 So.2d 116, in discussing willfulness in a perjury prosecution observed:

“A ‘willful’ act may be described as one ‘done intentionally, knowingly, and purposely, without justifiable excuse, as distinguished from an act done carelessly, thoughtlessly, heedlessly or inadvertently.’ Lobdell Car Wheel Co. v. Subielski, Del., 2 W.W.Harr. 462, 125 A. 462, 464. “The court held in Grebe v. State, 112 Neb. 715, 201 N.W. 143, that the word corruptly when used in a statute generally imports a wrongful design to acquire some unauthorized advantage.
“In the case of U. S. v. Edwards, C.C., 43 F. 67, the court held in effect that the word corruptly as used in an indictment for perjury is not synonymous with willfully, since the former means viciously, wickedly, while the latter means with design or with some degree of deliberation.”

A defendant cannot be convicted of perjury on the uncorroborated evidence of a single witness. McDaniel v. State, 13 Ala.App. 318, 69 So. 351.

As stated by Judge Harris, in Broadway v. State, 52 Ala.App. 249, 291 So.2d 338:

“To authorize a conviction for perjury, as detestable as that crime is, there must be two witnesses, or one witness with strong corroboration. There can be no conviction of the crime of perjury on the unaided testimony of a single witness. This would be oath against oath. Peterson v. State, 74 Ala. 34. . . . ”

As noted in Williams v. State, 34 Ala.App. 462, 41 So.2d 605:

“The applicable general rule is found in 48 C.J., Perjury, Sec. 166, p. 900: ‘A statement of accused, directly contradicting that upon which the perjury is assigned, is not sufficient evidence of the falsity of the latter, but other additional extrinsic evidence is necessary to establish its falsity.’ See also, 41 Am.Jur., Perjury, Sec. 66, p. 36.”

In the instant case, it was incumbent upon the State to establish the proper corroboration of the appellant’s contradictory statement. The law demands that this be done by the testimony of more than one witness, or one with strong corroboration. Capps v. State, 29 Ala.App. 192, 194 So. 689; Knight v. State, 30 Ala.App. 97, 1 So.2d 668.

The proper corroboration was here established through the testimony of Mrs. Sally H. Mitchell, secretary to District Attorney Hollingsworth, and by Sheriff H. E. Mitchell. In view of this, the trial court properly determined that the State had made out a prima facie case and properly overruled the appellant’s motion to exclude the evidence. Knight v. State, 30 Ala.App. 97, 1 So.2d 668, cert. denied 241 Ala. 152, 1 So.2d 669.

II

In view of the sharp conflict in appellant’s statements, the trial court correctly submitted the issue of the appellant’s guilt to the jury. The affirmative charge, requested by the appellant, was correctly refused. Johnson v. State, 25 Ala.App. 365, 146 So. 627; Singleton v. State, 29 Ala.App. 303, 195 So. 459; Knight, supra.

We have carefully reviewed this record and find no error therein. The judgment of the trial court is due to be and the same is hereby

Affirmed.

All the Judges concur.

      . Mrs. Mitchell stated that she was acting as a duly authorized notary public in administering the oath, and that her commission was in full force and effect at the time.


author: PER CURIAM. MADDOX, Justice JONES, Justice

text:
    In re Jackie OGLESBY v. STATE of Alabama. Ex parte Jackie Oglesby.
    SC 1731.
    Supreme Court of Alabama.
    July 2, 1976.

      Bill Thompson, Talladega, for petitioner.
    William J. Baxley, Atty. Gen., and William A. Davis, III, Asst. Atty. Gen., for the State.
   PER CURIAM.

Jackie Oglesby was convicted of perjury under Tit. 14, § 377, in Talladega Circuit Court and sentenced to five years’ imprisonment. The Court of Criminal Appeals affirmed. We granted certiorari on the ground that the opinion of the Court of Criminal Appeals was in conflict with prior decisions of both this Court and the Court of Criminal Appeals. On the authority of settled case law, in effect at the time of Oglesby’s alleged offense, we reverse the Court of Criminal Appeals. But, for the future, we overrule the existing case law as it pertains to perjury prosecutions which are based upon inconsistent sworn statements of the accused, and we recognize for prospective application an exception to the general rule as hereinafter discussed.

Oglesby’s prosecution for perjury arose from a murder investigation in Talladega County. On October 31, 1974, during the course of the investigation, Oglesby was called into Sheriff H. E. Mitchell’s office to make a statement. Before making his statement, Oglesby was given full Miranda warnings by Sheriff Mitchell and was sworn to tell the truth by Mrs. Sally H. Mitchell, who was a notary public and secretary to the District Attorney. The substance of the statement was that Oglesby was riding in a car with the murder suspect, Douglas Bridges, on the day of the murder. Bridges pulled up to Davidson’s Grocery and went inside to buy beer. While waiting in the car, Oglesby heard a shot and saw Bridges running out the door with a paper sack and a pistol in his hand. Bridges jumped in the car and said, “Let’s go.” As the parties drove toward Ashland, Bridges told Oglesby, “I shot Davidson,” and Ogles-by replied, “I don’t want no part of this . I don’t want none of the money.” After Bridges disposed of his pistol in a creek, the two drove back toward Tallade-ga, heard police and ambulances and followed them to Davidson’s store, where officers asked them to move their car so the body could be placed in the ambulance.

Subsequent to Oglesby’s statement, Bridges was charged with the murder of Harold Purvis Davidson. At Bridges’ preliminary hearing, Oglesby was called to the stand, placed under oath, and he recanted his previous statement saying he had lied about everything except that part in which he stated that he and Bridges went out to the Davidson store after hearing the ambulance and police. As a result of Oglesby’s testimony at the preliminary hearing, the State determined it would be unable to make out a prima facie case against Bridges and dismissed the case.

Oglesby was indicted on two counts of perjury. Count I charged him with making a false statement at the preliminary hearing. Count II charged him with making a false statement under oath before Mrs. Mitchell and Sheriff Mitchell. After the State presented its case in chief, Oglesby moved to exclude the evidence and also requested, in writing, the affirmative charge, both of which were overruled. Oglesby then moved that the State be required to elect which count it would present to the jury. The Court also denied this motion and Oglesby rested his case without presenting any evidence. After the defense rested, the State moved to dismiss Count II and the jury found Oglesby guilty on Count I.

The primary issue raised by Oglesby, and the issue upon which we reverse the Court of Criminal Appeals, is the trial Court’s denial of Oglesby’s motion to exclude and refusal of his request for the affirmative charge.

At the time Oglesby made the inconsistent sworn statements, it was the settled law in Alabama that a conviction for perjury could be sustained only upon the testimony of two witnesses to the falsity of the defendant’s statement or by the testimony of one witness plus strong corroborative evidence. Broadway v. State, 52 Ala.App. 249, 291 So.2d 338 (1974); Knight v. State, 30 Ala.App. 97, 1 So.2d 668 (1941). Prior inconsistent testimony by the accused may be used as corroboration, but it will only support a conviction if there is positive testimony of one witness to the corpus delicti. Williams v. State, 34 Ala.App. 462, 41 So.2d 605, cert. denied 252 Ala. 445, 41 So.2d 608 (1949).

The Court of Criminal Appeals held that this requirement was met because the State presented the testimony of Sheriff Mitchell and Mrs. Mitchell to the effect that Oglesby made conflicting statements. This is not sufficient. The State’s evidence only corroborated the fact that Oglesby made inconsistent statements, but the requirement in Alabama is inconsistent statements plus the testimony of one witness to independent facts which would prove one of the statements false.

Obviously, one or the other of Oglesby’s inconsistent sworn statements is not. true; but the law requires independent proof of the falsity of the one on which the perjury charged is founded. In other words, to support a conviction, the State must call a witness who can testify either that Oglesby was present when Davidson was murdered or that Oglesby was not present when Davidson was murdered. The State only produced witnesses to testify to what Oglesby said about the murder. Without independent testimony as to the events of the murder which would contradict one of Oglesby’s inconsistent statements, the corpus delicti of perjury is not proved.

Williams also involved a situation in which the State presented a perjury indictment solely on the basis of contradictory statements of the accused. Judge Carr stated in that case:

“Proof of the contradictory statements deposed by the accused on the second trial was admissible as a circumstance affecting the falsity of the evidence on the first trial. However, it mattered not how many witnesses testified to these facts, it could not be the equivalent of corroborative proof of the corpus delicti of the offense charged in the indictment.” Williams v. State, 34 Ala.App. at 464, 41 So.2d at 607.

The Williams court goes on to say that the cause cannot be proved even by a confession that one of the statements is false without the corroboration of a witness who testifies to independent knowledge that one or the other statements is false. The Court of Criminal Appeals recently affirmed the Williams rule in Broadway v. State, supra.

Besides the two inconsistent sworn statements, the State also relies upon an un-sworn statement Oglesby made to the father of the murder victim which implicated Bridges in the murder. Again, this is not sufficient under Alabama law. Testimony establishing other inconsistent statements is not equivalent to testimony establishing the falsity of either statement. The confusion in this area probably results from the con-elusory or shorthand statement of the rule usually found in cases. To clarify this point, we will set out two examples of a “witness to the corpus delicti.”

In Knight v. State, supra, although there were no contradictory statements by the accused, a perjury conviction was affirmed against Knight, a man who swore he had seen a murder, on the testimony of several witnesses who were present at the scene of the alleged murder. According to these witnesses, Knight was not present at the time of the incident and had no way of knowing the facts to which he swore.

Another example of a “witness to the corpus delicti” of perjury is found in Bradford v. State, 134 Ala. 141, 32 So. 742 (1902), where the accused testified under oath that he was sick on a certain day and did not arise until nine or ten o’clock. A conviction for perjury was affirmed on the testimony of a witness for the prosecution who claimed she saw Bradford outside his home at seven or eight o’clock on the morning in question.

Thus, a “witness to the corpus de-licti” of perjury is a witness who has independent knowledge of the facts to which the defendant has sworn and who testifies, based on that independent knowledge, that the defendant has perjured himself. There is quite a difference between the witnesses in the Knight and Bradford trials and the witnesses produced by the State in the Oglesby trial, who could only testify to the fact that Oglesby made inconsistent statements. Under the' existing law, a perjury conviction could not be sustained on evidence of inconsistent statements alone. Therefore, the trial Court’s denial of Ogles-by’s motion to exclude and its refusal to give the affirmative charge are reversible error.

We now turn to the desirability of preserving the existing law on inconsistent sworn statements. The rule of Williams and Bradford results from an application of the general law of perjury that a conviction cannot be sustained without the testimony of two witnesses or one witness with strong corroboration. This rule has validity in the normal perjury prosecution where the evidence of perjury consists of witnesses who testify to a set of facts contradictory to the defendant's sworn statement. In such a case, the law requires two witnesses because a conviction for perjury should not be supported on the basis of an oath against oath. This rationale, however, has no application in the case of two inconsistent sworn statements made by the same person. As Professor Wigmore observes, “The purpose of the rule is to protect the accused from the false testimony of a single witness swearing against him; here no attempt is made to condemn him upon the credit of another person; the rule’s protection is not needed; and the rule should fall with its reason.” 7 Wigmore, Evidence, 3d Ed. 1940, § 2043.

Judge Harris recognized this in Broadway after he ordered the reversal of a perjury conviction based solely on inconsistent sworn statements when he concluded, “This may appear to be a miscarriage of justice and, indeed, it is . . . ” 52 Ala.App. at 254, 291 So.2d at 342.

Other jurisdictions have created an exception to the general law of perjury both by statute (18 U.S.C., § 1623) and by judicial action (Commonwealth v. Sumrak, 148 Pa.Super. 412, 25 A.2d 605). This exception allows a conviction for perjury to be based upon evidence of two inconsistent sworn statements by the same person without additional evidence corroborating the falsity of either statement. Such an exception naturally results from an understanding of the rationale for the general rule. We adopt the exception. Therefore, on this point, Williams v. State, supra, and Broadway v. State, supra, are overruled, and a conviction for perjury in Alabama committed after the release date hereof may be sustained upon evidence of two inconsistent sworn statements made by the same person.

In addition, we note that the Court of Criminal Appeals states that it examined the record and found no prejudicial error. Upon examining the record for a better understanding of the point raised on certio-rari, we found from the record that the defendant requested the trial court to require the state to make an election between the two perjury counts in the indictment which involved separate transactions. The defendant’s request was denied. We think this was error. See 6A, Alabama Digest, Criminal Law, Key No. 678.

Consequently, we think the defendant was entitled to a new trial on that ground also.

REVERSED AND REMANDED.

HEFLIN, C. J., and BLOODWORTH, FAULKNER, JONES, ALMON, SHORES, EMBRY and BEATTY, JJ., concur.

MADDOX, J., concurs in the result.

JONES, J., concurs specially.

MADDOX, Justice

(concurring in the result).

I concur with the majority that the State should have been required to elect between the two counts at the close of the State’s case, since the defendant made a request to that effect. Therefore, I concur in the result.

Otherwise, I agree with the result reached by the Court of Criminal Appeals. I believe that if a defendant swears to two inconsistent statements, a conviction for perjury could be sustained by the proof that he swore to another inconsistent statement. The purpose of the rule requiring corroboration is to protect the accused from the false testimony of a single witness swearing against him. When the inconsistent statement is made by the accused himself, the rule’s protection is not needed and the rule should fail. In other words, I would apply that rule now rather than make it prospective.

JONES, Justice

(concurring specially).

I concur.

Because of our recognition of the above-stated exception, I deem it appropriate to briefly outline certain substantive and procedural aspects for prospective application of this exception.

1. Indictment Charging Perjury On More Than One Inconsistent Sworn Statement. Where the State’s indictment contains two or more counts charging the offense of perjury based on more than one of the inconsistent sworn statements, on proper motion, the defendant may require the State to elect no later than the close of the State’s case. If the State’s election to proceed under any one count comes after the trial commences, such election shall operate as an acquittal on the remaining counts. In other words, the incidents of double jeopardy shall attach to the dismissed counts where the State proceeds to trial on inconsistent counts.

2. Indictment Charging Perjury On Only One Inconsistent Statement. Where the State's indictment charges but a single offense based upon only one of the inconsistent sworn statements, or where the State dismisses all but one count prior to the commencement of trial such prior election shall not constitute an acquittal or give rise to double jeopardy as to any offense not charged in the indictment, or ás to any dismissed count.

3. Not every set of inconsistent sworn statements necessarily renders one false and the other true. Both may be false and each may support a perjury conviction. But the exception to the corroboration rule which this Court now recognizes for prospective application can be given operative effect only so long as the statement remains inconsistent. This means, of course, that a conviction on the one, which judicially verifies the other, precludes a conviction based on such other statement. This does not mean that the State could not proceed against a single defendant on different indictments alleging the falsity of each statement; but, in such event, a conviction under either indictment could be sustained only under the general rule (requiring corroboration) and not the exception (based solely on the other inconsistent sworn statement).

4. Where Involuntariness Or Coercion Is Asserted As A Defense. If the defendant asserts as a defense that one of the inconsistent statements was the result of coercion, or was otherwise involuntarily made, wide latitude is to be allowed the defendant in his evidentiary support of this defense. Since the exclusionary rule of the Fifth Amendment is not here involved, involuntariness vel non of the statement is a question of fact for the jury.

A final note of caution is in order. This entire discussion must be understood in the context of the application of this exception to the general rule; i. e., the points discussed above (except for the application of the general rule discussed in paragraph 3) relate to the situation where the State seeks to prove perjury based upon two or more inconsistent sworn statements made by the same person absent independent evidence of corroboration of the falsity of the statement upon which the charged offense is based.

      . By prospective application, we mean that this rule will apply to offenses coming within the exception occurring after the effective date of this opinion.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694.

      . Whether this first statement would support a perjury conviction under Tit. 14, § 377 (“. upon any oath or affirmation authorized by law . . .”), is not before us and we express no opinion on this issue.

      . This statement of the law — applied in the instant case — must be understood as an expression of the general rule and not the exception to that rule as discussed for prospective application in the latter portion of this opinion.

      . I am keenly aware of the risk attending any effort to project the practical application of this new rule. Nevertheless, I feel constrained to share with bench and bar a few observations gleaned from my in-depth study of this problem.

      . For a good statement of the rule of election, see Butler v. The State, 91 Ala. 87, 9 So. 191 (1890).

      . For a discussion of this general rule of former jeopardy, not peculiar to the offense of perjury, see Murry v. State, 210 Ala. 603, 98 So. 871 (1924).

      . See Boswell v. State, 290 Ala. 349, 276 So.2d 592 (1973).


text:
    Jackie OGLESBY v. STATE.
    7 Div. 387.
    Court of Criminal Appeals of Alabama.
    Aug. 24, 1976.
   AFTER REMAND FROM THE SUPREME COURT OF ALABAMA: REVERSED AND REMANDED to the Circuit Court on authority of Ala., 337 So.2d 381.


author: PER CURIAM.

text:
    Barry ELLIS, alias v. STATE.
    4 Div. 364.
    Court of Criminal Appeals of Alabama.
    June 1, 1976.
    Daniel E. Robison, Dothan, for appellant.
    William J. Baxley, Atty. Gen., and Stephen M. Langham, Asst. Atty. Gen., for the State.
   PER CURIAM.

Robbery: sentence, thirty years.

The cause is remanded for consideration of the Youthful Offender Act’s being applicable.

REMANDED WITH DIRECTIONS.

All the Judges concur.

Opinion following remand, Ala.Cr.App., 337 So.2d 387.


author: CATES, Presiding Judge.

text:
    Barry ELLIS, alias v. STATE.
    4 Div. 364.
    Court of Criminal Appeals of Alabama.
    Aug. 31, 1976.
    Daniel E. Robison, Dothan, for appellant.
    William J. Baxley, Atty. Gen., and Stephen M. Langham, Asst. Atty. Gen., for the State.
   CATES, Presiding Judge.

Robbery: sentence, thirty years imprisonment.

Contrary to the tendency of the prosecution’s evidence, the defendant testified that although he had a fight with a night clerk at the Carousel Motel, Dothan, in the early morning hours of September 17, 1974, he did not rob him. This left a question of fact to be decided by the jury.

We have reviewed the entire record under Code 1940, T. 15, § 389 and consider the judgment below should be

AFFIRMED.

All the Judges concur.

      . This cause was remanded to the Circuit Court for consideration of Youthful Offender Status. On July 29, 1976, return was made from the trial court showing an order of July 26, 1976, denying such treatment.


author: ROBERTS, Justice. SUNDBERG, Justice

text:
    Curtis A. GOLDEN, State Attorney, and E. J. Gibbs, Jr., Tax Collector of Escambia County, Florida, a Political Subdivision of the State of Florida, Appellants, v. Doris J. McCARTY, Appellee.
    No. 46964.
    Supreme Court of Florida.
    July 30, 1976.
    Rehearing Denied Oct. 11, 1976.
    Robert L. Shevin, Atty. Gen., and Bernard S. McLendon, Asst. Atty. Gen., for appellants.

      Grover C. Robinson, Jr., Pensacola, for appellee.
   ROBERTS, Justice.

We have before us on direct appeal a final judgment of the Circuit Court in and for Escambia County expressly holding Section 877.04, Florida Statutes, as amended by Chapter 69-118, Laws of Florida, to be unconstitutional as it applies to appellee, Doris J. McCarty. We have jurisdiction pursuant to Article V, Section 3(b)(1), Constitution of Florida.

Appellee, as substitute plaintiff for her husband, J. W. McCarty, now deceased, and in her own right sought declaration of her right to continue the practice of the art of tattooing in Escambia County in light of Chapter 69-118, Laws of Florida, and in-junctive relief. She and her husband had engaged in the tattoo business in Florida for more than twenty-five years and held the requisite occupational licenses for the operation of such business from the City of Pensacola and Escambia County.

By Chapter 69-118, Laws of Florida, the Legislature in 1969 amended Section 877.04, Florida Statutes, to read in pertinent part, as follows:

“It is unlawful for any person to tattoo the body of any human being; except that tattooing may be performed by a person licensed to practice medicine or dentistry under chapters 458, 459 or 466, Florida Statutes, or by a person under his direction.”

This act took effect January 1, 1970. Prior to the aforestated amendment, tattooing was prohibited only to “the body of a human being less than eighteen years of age.”

On March 18, 1970, McCarty was notified by the City Treasurer that his municipal occupational license for tattooing had been voided by the City of Pensacola. During 1973, appellee was charged with the offense of tattooing in Escambia County but the charges were nol-prossed by the State Attorney because of unavailability of the prosecuting witness.

In her amended complaint for declaratory and injunctive relief, appellee contended that Section 877.04(1), Florida Statutes, has the legal effect of making it unlawful for her to continue in her chosen profession, that said statutory provision constitutes an unlawful exercise of the State’s police power in that it has no reasonable relation to the public health, safety, welfare or morals, and that it violates appellee’s constitutional right to equal protection of the law by creating an arbitrary classification of individuals allowed to tattoo.

Finding that Section 877.04, Florida Statutes, as amended is unconstitutional as applied to appellee in that she is prohibited from following her constitutional right to engage in her chosen profession of tattooing, the trial,court entered final judgment for appellee and directed that upon tender of the appropriate license fee, the appellee shall be entitled to issuance of a State and County license to engage in the occupation of tattooing. The trial judge determined the statute to be unconstitutional as applied in that it denies appellee her right to equal protection, in that it fails to set forth reasonable standards to be followed in its application, in that it is prohibitive not regulatory, and void of factors actuated by public policy.

Courts have long been committed to the view that if reasonably possible doubts as to the validity of a statute should be resolved in favor of its constitutionality. Every presumption is to be indulged in favor of the validity of a statute and each cause should be considered in light of the principle that the State is the primary judge, and may by statute or other appropriate means, regulate any enterprise, trade, occupation or profession if necessary to protect the public health, safety, welfare or morals. Cf. Gitlow v. People of New York, 268 U.S. 652, 45 S.Ct. 625, 69 L.Ed. 1138 (1925), Kahn v. Shevin, 416 U.S. 351, 94 S.Ct. 1734, 40 L.Ed.2d 315 (1974), Ferguson v. Skrupa, 372 U.S. 726, 83 S.Ct. 1028, 10 L.Ed.2d 93 (1963), Newman v. Carson, 280 So.2d 426 (Fla.1973).

All contract and property rights are held subject to the fair exercise of the power inherent in the State to promote the general welfare of the people through regulations that are reasonably necessary to secure the health, safety, good order, general welfare. “And the enforcement of uncompensated obedience to a regulation established under this power for the public health or safety is not an unconstitutional taking of property without compensation or without due process of law.” Atlantic Coast Line R. R. Co. v. City of Goldsboro, 232 U.S. 548, at 558, 34 S.Ct. 364 at 368, 58 L.Ed. 721 (1914). Appellant submits and we agree that the constitutional right of every person to pursue a business, occupation, or profession is subject to the paramount right of government through the police power to impose reasonable restrictions as may be required for the protection of the public. In Palm Beach Mobile Homes, Inc. v. Strong, 300 So.2d 881 (Fla.1974), we said:

“Freedom to contract and a citizen’s right to pursue a lawful business which are valuable property rights are subject to reasonable restraint in the interest of the public welfare. The right to contract is the general rule and restraint of this right by the police power is the exception to be exercised when necessary to secure the comfort, health, welfare, safety and prosperity of the people. Adams v. Miami Beach Hotel Assoc., 77 So.2d 465 (Fla.1955); Miami Shores Village v. Wm. N. Brockway Post No. 124 of American Legion, 156 Fla. 673, 24 So.2d 33 (Fla.1945); Eccles v. Stone, 134 Fla. 113, 183 So. 628 (Fla.1938); State ex rel. Fulton v. Ives, et al., 123 Fla. 401, 167 So. 394 (Fla.1936); Holden v. Hardy, 169 U.S. 366, 18 S.Ct. 383, 42 L.Ed. 780.”

Cf. McInerney v. Ervin, 46 So.2d 458 (Fla.1950).

Clearly the subject in question sought to be regulated by the Legislature bears a substantial relationship to the public health of the citizens of this State. Because of the nature of tattooing, we find the restriction that tattooing be done by a person licensed to practice medicine or dentistry or under his direction to be reasonable. Cf. Zabel v. Pinellas County Water and Navigation Control Authority, 171 So.2d 376 (Fla.1965), Newman v. Carson, 280 So.2d 426 (Fla.1973). What is harmful or injurious to the public is for the Legislature to decide and courts should not substitute their judgment therefor. Cf. Ferguson v. Skrupa, 372 U.S. 726, 83 S.Ct. 1028, 10 L.Ed.2d 93 (1963), Pepper v. Pepper, 66 So.2d 280 (Fla.1953), City of Jacksonville v. Bowden, 167 Fla. 181, 64 So. 769 (1914).

Tattooing consists of puncturing the skin in the pattern desired and rubbing in coloring material so that the pattern is indelibly fixed. Encyclopedia Brittanica, Volume 16. Cf. Ormsby and Montgomery, Diseases of the Skin, Eighth Edition, 9 Proof of Facts 391. It is a matter of common knowledge that in making a tattoo, there are many entries by way of needle into the skin of a human body opening the way for infection and health impairment.

Relative to the relationship of regulation of the business of tattooing and the public health, the Supreme Court of New York, in upholding the constitutionality of Section 181.15 of the New York City Health Code making it unlawful for any person to tattoo a human being, with an exception being made for physician acting for medical purposes, declared:

“The record shows, to our minds conclusively, that the prohibition of lay tattooing was an advisable procedure for the security of life and health. It was established that hepatitis, a serious disease of the blood for which there is no known cure, is caused by a virus. This virus, which lives in the blood of infected persons, is transmitted to the healthy by injection into their blood or tissue of the blood or blood products of the infected. Such transmissions occur to persons who have been tattooed seven times more frequently than they occur in persons who have not been tattooed. Concededly, restricting the spread of hepatitis is a proper subject of Health Code regulations. And it would appear to be uncontradicta-ble that tattooing is a source of the spread of this dread disease. It would therefore follow indisputably that the control of tattooing comes well within the field of securing the health of the community.”

Grossman v. Baumgartner, 22 A.D.2d 100, 254 N.Y.S.2d 335, affirmed 17 N.Y.2d 345, 271 N.Y.S.2d 195, 218 N.E.2d 259 (1966).

It is our opinion and we hold that the method of tattooing is sufficient to bring it within the range of things directly affecting the public health and falls within the scope of the police power and that the subject regulation constitutes a reasonable restriction on the art of tattooing for the benefit of public health.

The act specifies that tattooing be performed by a person licensed to practice medicine or dentistry under Chapters 458, 459 or 466, Florida Statutes, or by one under his direction. This language is neither void nor vague but rather is susceptible to the understanding of a reasonable person. The statute requires that tattoo artists work subject to the direction of a licensed physician or dentist as defined by the act.

The equal protection guarantees of the state and federal constitutions are not violated by Section 877.04, Florida Statutes. Cf. McGowan v. Maryland, 366 U.S. 420, 81 S.Ct. 1101, 6 L.Ed.2d 393 (1961), Battaglia v. Adams, 164 So.2d 195 (Fla.1964), Lasky v. State Farm Insurance Co., 296 So.2d 9 (Fla.1974).

Accordingly, for the aforestated reasons, we find Section 877.04 Florida Statutes, to be constitutionally valid. The judgment is reversed and the cause is remanded for further proceedings consistent herewith.

It is so ordered.

OVERTON, C. J., BOYD and ENGLAND, JJ., concur.

SUNDBERG, J., dissents with an opinion.

ADKINS and HATCHETT, JJ., dissent and concur with SUNDBERG, J.

SUNDBERG, Justice

(dissenting).

I must respectfully dissent from the majority opinion. Although I find no fault with the principle that the Legislature in the exercise of the police power may regulate reasonably the occupation of tattooing in furtherance of the public health, I believe that the method of regulation in Section 877.04, Florida Statutes (1975), is constitutionally impermissible. In my judgment the classification contained therein is unreasonable. In order for a statutory classification not to deny equal protection, it must rest on some difference that bears a just and reasonable relation to the statute in respect to which the classification is proposed. McLaughlin v. Florida, 379 U.S. 184, 85 S.Ct. 283, 13 L.Ed.2d 222 (1964). There appears to me no reasonable relation between health hazards associated with tattooing and the limitation of its performance to those licensed to practice medicine or dentistry or to one under the direction of those so licensed. Granting that my experience with tattooing is limited, I nevertheless think we may take judicial knowledge of the fact that doctors and dentists simply do not practice that art, and therefore the statutory classification plainly results in an absolute prohibition. It may be that the public health requires such an absolute proscription and that the Legislature may well be authorized to completely prohibit the practice. However, that body may not do so under the guise of regulation. As stated by Justice Barns in his concurring opinion in Liquor Store v. Continental Distilling Corp., 40 So.2d 371, 376 at 385 (Fla.1949):

“To be ‘equal before the law’ does not preclude the state from resorting to classification, provided the classification is reasonable, not arbitrary, and rests on some ground of difference having a fair and substantial relation to the object of the legislation. The classification, in order to avoid the constitutional mandate, must be founded upon pertinent and rational basis and not upon a capricious and unreasonable basis.”

I would affirm the trial court.

ADKINS and HATCHETT, JJ., concur.

Rehearing denied;

OVERTON, C. J., ROBERTS, BOYD, ENGLAND, and HATCHETT, JJ., concur.

ADKINS and SUNDBERG, JJ., dissent.

      . After commencement of this suit, J. W. McCarty died September 18, 1971, and appellee filed a suggestion of death of the original plaintiff and substitution of herself as plaintiff.


author: PER CURIAM. BOYD, Justice

text:
    THE FLORIDA BAR, Complainant, v. David W. THORPE, Respondent.
    No. 49246.
    Supreme Court of Florida.
    Sept. 9, 1976.
    David A. Maney, Bar Counsel, Tampa, and James P. Hollaway, Asst. Staff Counsel, Tallahassee, for complainant.
    Michael J. Mekstraitis, Sarasota, for respondent.
   PER CURIAM.

Disciplinary proceedings before a referee concluded with certain findings of fact and recommendations, which are set forth below. As to Count I, alleged violation of DR 2-110(A)(2) and (3) (withdrawal from employment), the referee found:

1. Respondent was employed by Harold R. and Lucille H. Schaub to represent them in Hillsborough County Circuit Case No. 73-7430 sometime after October 16, 1973 and prior to November 6, 1973. The Respondent was employed full time by The Hillsborough County State Attorney’s office at the time he accepted this employment, and did not officially resign until December 31, 1973. According to Respondent, the uncontroverted testimony was that the Hillsborough County State Attorney’s office had no objection to his taking outside cases so long as he did not appear in Court. (TR-49, Vol. I)
2. This case involved a claim by the Plaintiffs, James F. Nethers and Lillian G. Nethers, his wife, for permanent injunction against the Defendants so that they could not use certain rights-of-way in Sun City, Florida for access to their property. A default was entered against Harold R. Schaub and Lillian H. Schaub, his wife, and a Final Judgment taken by Plaintiffs’ counsel on November 7, 1973, enjoining the Defendants permanently from trespassing or traveling upon certain rights-of-way in Sun City Subdivision.
3. Subsequent to entry of the Final Judgment, Respondent, without prior permission of his clients, associated Stuart W. Umbarger, Esq., to represent Mr. and Mrs. Schaub on a Motion To Vacate the Final Judgment, which was filed on November 12, 1973. For the first time, on January 14, 1974, Respondent and Stuart W. Umbarger filed a Stipulation for Substitution of Counsel. The stipulation did not contain the consent of Respondent’s clients, Harold R. Schaub and Lucille H. Schaub, his wife. On February 20, 1974, the Court denied the Schaub’s Motion To Vacate the Final Judgment. (BAR Composite Exhibit # 6)
4. The facts further reveal that Respondent was of the opinion that the issues raised in the litigation filed by Mr. and Mrs. Nethers against his clients had been decided by the Florida Supreme Court case of State Road Department vs. Bender, 2 So.2d 298. (BAR Exhibit # 1) Counsel for the Nethers’ had further offered to set aside the default Judgment if Respondent could find or present a valid defense to him. (TR-13) Testimony from counsel for Mr. and Mrs. Nethers further revealed that he offered to Mr. and Mrs. Schaub, through Respondent, a free easement to their property over Universal Drive, with the requirement that they would have to pave it according to County specifications. It further appeared that this offer was refused by the Schaubs, but according to counsel for Mr. and Mrs. Nethers, was subsequently accepted by either someone on behalf of the Schaubs or another corporation, and that the street known as Universal Drive is now paved and being used as a right-of-way to the Schaub property. (TR-15)
5. Respondent entered into numerous negotiations with counsel for Mr. and Mrs. Nethers and did additional work with the County in attempting to acquire alternative rights-of-way for them and advancing their cause in general.
6. There was a conflict between the testimony of Mr. and Mrs. Schaub, Respondent’s clients, concerning whether they knew of his employment of Stuart W. Umbarger, Esq., and whether they consented to it. (TR — 128 and 129)

The referee recommended that respondent “be found not guilty of violating DR 2-110(A)(2) and (3).”

As to Count II, alleged violation of DR 6-101(A)(l), (2), and (3) (failing to act competently), the referee found:

1. There has been no testimony submitted concerning the allegations of DR 6 — 101(A)(1) as to whether Respondent was or was not competent to handle the legal matter submitted to him by Mr. and Mrs. Schaub.
2. By Respondent’s own testimony, I find that as a matter of admission, the Respondent was employed by Mr. and Mrs. Schaub prior to twenty (20) days having elapsed after service on them of the Nethers’ Complaint. I further find that the Respondent did not take any action to respond to that Complaint prior to the expiration of the twenty-day period, and that there was no factual justification presented by the Respondent concerning his failure to respond to said Complaint. (TR-64, Vol. II)
3. I further find that although Respondent’s actions resulted in a default Judgment being entered against his clients, that there were mitigating circumstances in view of the nature of the suit, and the overall picture as it relates to what Respondent actually did outside the scope of the litigation itself, in attempting to resolve the issues amicably between the parties.

The referee recommended that respondent “be found not guilty under DR 6-101(A)(l) [but] guilty of violation of DR 6-101(A)(2) and (3).”

As to Count III, alleged violation of DR 7 — 101(A)(1), (2), and (3) (representing a client zealously), the referee found:

1. There has been no evidence submitted concerning whether Respondent failed to seek the lawful objectives of his client through reasonably available means as permitted by law.
2. The Respondent did fail to carry out a contract of employment for the reasons previously enumerated in regard to the prior Counts.
3. There has not been sufficient evidence presented to make a determination concerning whether the Respondent prejudiced or damaged his clients in the course of his professional conduct with them by allowing a default to be entered in subject case. Once again, this referee finds that there were mitigating circumstances as to the ultimate goal of the Respondent’s clients which Respondent actively pursued. I further find that reasonable alternatives for rights-of-way were presented to Mr. and Mrs. Schaub through Respondent’s efforts which, if accepted, may have mitigated any possible damages they could have suffered. (TR-16, Vol. II), (TR-17, Vol. II), (TR-21, Vol. II), and (TR-25, Vol. II)

The referee recommended that respondent “be found not guilty of violating DR 7-101(A)(1) and (3) . . . [but] guilty of violating DR 7-101(A)(2).”

As to Count IV, alleged violation of DR 7 — 102(A)(2) (representing a client within the bounds of the law), the referee found:

1.The Bar counsel has also charged that Respondent knowingly made a false statement of fact in his notes to co-counsel, Stuart W. Umbarger, Esq., which was used by Umbarger in his Motion to Set Aside the Default Judgment. (BAR Exhibit # 1) The language used by Respondent in these notes and which the Bar relies upon to substantiate this charge is as follows:
‘The County of Hillsborough, through its agents, servants or employees has continued to represent to the Defendants (The Schaubs) that said street may be County-owned at the filing of this cause of action, causing confusion as to the status of the Defendants. Whereupon the Defendants continued to communicate and consult with the County rather than retain private counsel.’
The Respondent does not deny that this statement was prepared by him in order to help co-counsel, Stuart W. Umbarger, Esq., prepare a Petition to Set Aside the Default Judgment. This language was also incorporated in the Motion to Set Aside the Final Judgment. The default Judgment was entered on November 7, 1973 and although there had been no testimony concerning the exact date this memorandum was presented to Mr. Um-barger, it is apparent that it was done by the Respondent after November 7, 1973 and prior to November 21, 1973, which was the date that the Motion to Vacate the Final Judgment was filed by Mr. Umbarger. (BAR Composite Exhibit # 1)
2. It is apparent from the meeting of the Hillsborough County Commissioners on October 17, 1973 (see BAR Exhibit # 1) that the County was considering withholding of building permits in subject subdivision until the determination could be made as to whether the rights-of-way involved were public streets. The County attorney further stated that he would like to discuss with the rest of the staff the advisability of the County being made a Third Party Defendant in the Nethers/Schaub litigation. County attorney, O’Brien, further recommended that Mr. Schaub employ his own attorney to protect his own specific rights in the matter. This is further supported by Mrs. Schaub when she testified that it was her understanding that the County was willing to come in and attempt to litigate this issue.
3. The testimony by Respondent is un-controverted by both Respondent and his clients that he was employed by them prior to November 6, 1973, the date the default Judgment was entered, and this referee has no alternative but to make a Finding of Fact that Respondent’s statement to co-counsel in an effort to get the Judgment set aside, was false, namely, ‘. . . Whereupon the Defendants continued to communicate and consult with the County rather than retain private counsel.’ The referee also finds that Respondent knew that it was false at the time that he prepared the notes and submitted them to Mr. Umbarger. (TR-56, Vol. I) and (TR-64, Yol. II)

The referee recommended that the respondent “be found guilty of violation of DR 7-102(A)(2).”

On the question of appropriate discipline, the referee recommended:

. that the Respondent, DAVID W. THORPE, receive a public reprimand and be placed on probation for a period of three (3) years.
that the Respondent make quarterly case load reports by type and status to the Clerk of the Florida Supreme Court.
that while on probation, the Respondent associate experienced counsel on any matter in which he has not developed expertise during his time in private practice of law.

Through counsel, respondent indicated that “he will not appeal the decision of the referee and he will accept that decision.”

Accordingly, this opinion shall be published in the Southern Reporter, and such publication shall constitute a public reprimand; respondent is hereby placed on probation for a period of three years, beginning at the end of the probationary period previously imposed for an earlier disciplinary infraction; respondent shall continue to report quarterly to the clerk as to the type and status of each case in his office, so long as he is on probation; respondent shall associate experienced counsel on any matter in which he is inexpert, so long as he is on probation; and respondent shall pay the costs of these proceedings in the amount of $633.20.

It is so ordered.

OVERTON, C. J., and ROBERTS, ADKINS and HATCHETT, JJ., concur.

BOYD, J., concurs specially with an opinion.

BOYD, Justice

(concurring specially).

I concur in the majority opinion which finds respondent guilty of misconduct, but because his clients apparently suffered little or no economic detriment, and a good faith effort was made to correct his error, I would limit the discipline to a private reprimand and payment of costs.


text:
    THE FLORIDA BAR. In re Ray HILL.
    No. 49672.
    Supreme Court of Florida.
    Sept. 9, 1976.
    Edward F. Simpson, Jr., Bar Counsel, Daytona Beach, and David G. McGunegle, Asst. Staff Counsel, Tallahassee, for The Florida Bar, complainant.
    Donald C. Jacobson, Daytona Beach, for respondent.
   PER CURIAM.

This matter is before the Court on Petition for Approval of Conditional Guilty Plea and Entry of Final Order of Discipline. The Florida Bar served its consolidated complaint on January 29, 1976, alleging that the respondent, Ray Hill, was at all times pertinent, a member of The Florida Bar and subject to the jurisdiction and disciplinary rules of the State of Florida. The complaint was filed by The Florida Bar, by direction of the Board of Governors and all conditions prerequisite to the filing of said complaint, required by the Integration Rule were fulfilled.

In 1974, the respondent represented Judith Ann Johnston in a personal injury claim against Honda City of Daytona Beach, Florida, and settled the claim for $1,500. In June 1974, respondent mailed two checks totaling $1,500 to his client requesting her to endorse and return them which she did. Despite advising his client her portion of the settlement, which was $1,000, would be forwarded and two later telephonic demands by her mother, the respondent has never forwarded any portion of the money to his client.

In 1972, the respondent represented Rosetta Gosling, a Canadian resident, in a personal injury claim against a Daytona Beach supermarket. After obtaining a settlement in favor of his client for $17,500 and deducting his agreed fee of $7,000, the respondent issued a portion of the remainder to his client and retained $4,030.10 to be utilized in paying medical expenses. Despite numerous inquiries from her Canadian attorneys, he has failed to pay those medical expenses, to account for the funds or to deliver any of the balance to her.

In 1973, the respondent represented Charles Wade in a dissolution proceeding against his wife in Volusia County, Florida. After borrowing $1,034.95, Mr. Wade delivered the money to his attorney who was to disburse it to his ex-wife and her attorney to satisfy alimony payments and attorneys fees pursuant to the court order. Despite several promises and demands by the wife’s attorney, the respondent has failed to deliver those funds to Mrs. Wade.

In 1974, the respondent represented Otho and Elinor Wright in a personal injury suit arising out of an automobile accident. He reached a settlement with the insurance company for $8,050 which was duly paid in July 1974. He delivered to Otho Wright a total of only $1,650 in cash from these funds. Despite numerous demands by his clients, they have received no accounting for the funds, no additional funds nor have any of the funds been used to pay medical or other expenses on their behalf.

By reason of the foregoing conduct, respondent has violated Florida Bar Code of Professional Responsibility, DR1-102(A)(3), 1 — 102(A)(4), 9-102(A), 9 — 102(B)(3) and 9-102(B)(4) and Florida Bar Integration Rule, Article XI, Rules 11.02(3)(a), 11.02(3)(b) and 11.02(4) and has engaged in felonious conduct in violation of Section 811.021, Florida Statutes (1973).

The petition for approval of conditional guilty plea and entry of final order of discipline is granted and Ray Hill is hereby disbarred from the practice of law in Florida, with any future readmittance specifically conditioned upon full compliance with the rules and regulations governing admissions to the Bar and with directions that no application be tendered or accepted within three years of the date of this order; that no application be tendered or accepted until proof is provided by respondent of full restitution to any and all injured clients, whether listed in the complaint or as may be discovered; that no application be tendered or accepted until prior reimbursement is made to the Clients’ Security Fund for any payments made by reason of respondent’s misappropriation; and that his agreement not to work for lawyers or law firms in any capacity until readmittance is accepted.

Costs in the amount of $356.75 are hereby taxed against the respondent.

OVERTON, C. J., and ROBERTS, ADKINS, BOYD and ENGLAND, JJ., concur.