author: NATHAN, Judge. CHARLES CARROLL (Ret.), Associate Judge

text:
    The STATE of Florida, Appellant, v. Dennis DEEMS, Appellee.
    No. 75-437.
    District Court of Appeal of Florida, Third District.
    March 17, 1976.

      Richard E. Gerstein, State's Atty., and Harold Ungerleider, Asst. State’s Atty., for appellant.
    Joel Hirschhorn and Yale T. Freeman, Miami, for appellee.
    Before PEARSON and NATHAN, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   NATHAN, Judge.

This is an appeal by the State of Florida from an order of the trial court granting defendant Deems’ motion to dismiss the information charging him with conspiracy to commit a felony, grand larceny. The order under appeal also granted defendant’s motion to suppress certain corporate records produced by defendant in the State Attorney’s office in compliance with a subpoena duces tecum.

The basis of the trial court’s ruling in dismissing the information was that the subpoena duces tecum was addressed to and served personally on Deems, not in any corporate capacity, but as an individual and having so complied with the subpoena, he was immunized from prosecution under § 914.04, Fla.Stat., which provides:

“No person, having been duly served with a subpoena or subpoena duces tec-um, shall be excused from attending and testifying or producing any book, paper, or other document before any court having felony trial jurisdiction, grand jury, or state attorney, upon investigation, proceeding, or trial for a violation of any of the criminal statutes of this state upon the ground or for the reason that the testimony or evidence, documentary or otherwise, required of him may tend to convict him of a crime or to subject him to a penalty or forfeiture, but no person shall be prosecuted or subjected to any penalty or forfeiture for or on account of any transaction, matter, or thing concerning which he may so testify or produce evidence, documentary or otherwise, and no testimony so given or produced shall be received against him upon any criminal investigation or proceeding.” al privilege against self incrimination where such individual is subpoenaed or compelled to produced his own personal records. State ex rel. Byer v. Willard, Fla. 1951, 54 So.2d 179. However, a requirement for production of records of the corporation of which Deems was president would not violate Deems’ privilege against self incrimination and would not prevent prosecution under the statute. Davis v. State, Fla.App.1973, 281 So.2d 551; 79 C. J.S. Searches and Seizures § 37.

Section 914.04, Fla.Stat., is designed to assure an individual’s constitution-

The subpoena duces tecum served on Deems in part provided:

“IN THE CIRCUIT COURT OF THE ELEVENTH JUDICIAL CIRCUIT OF FLORIDA, IN AND FOR DADE COUNTY

CASE NO_

STATE OF FLORIDA, ss. vs. INVESTIGATION

(Defendants)

WITNESS SUBPOENA “Criminal”

TO: DENNIS DEEM, [sic] President Mini-Diner Inc.

20785 Northwest Miami Court Miami, Florida or c/o Mt. Sinai Hospital 4300 Alton Road Miami Beach, Florida (Witnesses)

SEE ATTACHED SHEET

TO ALL AND SINGULAR THE SHERIFFS OF TPIE STATE OF FLORIDA:

GREETINGS

We command you to summon the above witness to be and appear before the State Attorney, of the Eleventh Judicial Circuit of Florida, on the Sixth Floor, Metropolitan Dade County Justice Building, 1351 N. W. 12th Avenue, Miami, Florida, on Friday, May 31st, 1974, at 2:30 P.M., to testify and the truth to speak in behalf of the STATE in a certain matter before said State Attorney pending and undetermined.

ATTACHED SHEET:

PLEASE BRING THE FOLLOWING:

ALL BOOKS and RECORDS of the MINI-DINER, INC. from March 1, 1972, through February 28, 1973, including ALL LEDGERS, CHECK BOOKS, CAN-CELLED CHECKS, BANK STATEMENTS, INVOICES, BILLS, CORRESPONDENCE, REPORTS AND AUDITS.

and

any REPORTS, CORRESPONDENCE, BILLS, or INVOICES relating to the purchase, delivery or obtaining of food products for the MINI-DINER to of from MT. SINAI HOSPITAL.”

From a reading of the subpoena duces tecum it is not clear whether it is directed to Deems individually or as the custodian of the records of the corporation of which he was president. The subpoena does not reflect the nature of the matter pending before the trial court for which the records are required and further it required him to bring all books and records of Mini-Diner, Inc., and

“any REPORTS, CORRESPONDENCE, BILLS, or INVOICES relating to the purchase, delivery or obtaining of food products for the MINI-DINER to or from MT. SINAI HOSPITAL.”

The trial court found that Deems did bring the records to the office of the State Attorney without waiving immunity. The court further found that if the State intended to obtain only corporate documents, as it claims, by subpoena for use in a trial against the corporation and Deems, then the State should have made that intention clear by unambiguous language of the subpoena duces tecum. We agree and affirm.

Affirmed.

CHARLES CARROLL (Ret.), Associate Judge

(dissenting).

I respectfully dissent from this court’s affirmance of the order which dismissed Deems from the prosecution against him and Mini-Diner, Inc. and Leuchman, and which granted Deems’ motion to suppress, as to him, evidence presented in response to the subpoena duces tecum.

In my opinion the records which the subpoena directed the president to produce were records of the corporation. As stated in Davis v. State, Fla.App.1973, 281 So.2d 551, 552, “A [request] for production of records of the agent corporation, of which the appellant was president, did not constitute a violation of the appellant’s [president’s] privilege against self-incrimination.”

The subpoena duces tecum was issued in and made returnable in May of 1974. Thereafter, and prior to the hearing on Deems’ motion to dismiss and to suppress, the information was filed against the corporation, Deems and Leuchman, on November 22, 1974. In one count the information charged the defendants with conspiring, and stealing certain foodstuffs from Mt. Sinai Hospital in the furtherance thereof. In a second count the defendants were charged with stealing certain foodstuffs of a value in excess of $200.00, from the hospital.

The manner in which to obtain records of a corporation by subpoena duces tecum is to issue the subpoena to an officer or agent of the corporation with direction that he produce the records. That was done in this instance.

The appellee appears to agree that the first five lines of the directions in the subpoena for production of records had reference to records of the corporation. Appel-lee argues, however, that the order appealed from should be affirmed on the theory that the last four lines of the directions to produce, which dealt specifically with the records “relating to the purchase, delivery, or obtaining of food products for the Mini-Diner to or from Mt. Sinai Hospital”, did not call for production of records of the corporation of its said transactions with the hospital, but directed the production of Deems’ individual records as to his personal sales and deliveries of foodstuffs to the hospital. In my view that is a strained construction unwarranted by the language of the subpoena.

The subpoena called for the production of two types of records of the corporation, that is, its general records and those specifically relating to the transactions of “Mini-Diner” with the hospital relating to sale and delivery of foodstuffs. In that situation, the president to whom the subpoena duces tecum was directed and who responded by producing the corporate records called for in the subpoena was not thereby immunized from said prosecution, by § 914.04 Fla.Stat., F.S.A. Davis v. State, supra. The order appealed from should be reversed.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Arnold SANTOS, Appellant, v. Anna W. BOGH, Appellee.
    No. 75-1871.
    District Court of Appeal of Florida, Third District.
    April 27, 1976.
    Fine & Brownstein, Miami, for appellant.
    Martin Nathan, Miami, for appellee.
    Before HENDRY and HAVERFIELD, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

Predicated upon a judgment dated March 26, 1973, obtained by the appellee Anna W. Bogh against Arnold Santos and another, an execution levy was made upon certain real estate. The judgment defendant Santos moved to quash the levy and proposed sale thereunder on the ground “that title to the property upon which the levy has been made is held in the name of Arnold Santos and Carolyn Santos, as tenants by the entireties, according to a warranty deed”. Attached to the motion was a copy of a quit claim deed dated June 1, 1967, from Arnold Santos to himself and his wife Carolyn Santos. The deed was signed and acknowledged by Santos but had only one subscribing witness, whereas the presence thereon of two subscribing witnesses was essential to its validity under § 689.01 Fla.Stat., F.S.A. There was no contention that the deed in question represented a transfer in fraud of the creditor.

The trial court denied the motion to quash the levy and sale. Appealing therefrom, Santos argues that because the acknowledgment included a recitation that the grantor was known to be the person described in and who executed the deed, the notary’s signature to the acknowledgment should be regarded as that of a second subscribing witness. We find no merit in that argument, for which no supporting authority was cited.

Appellant argues further that although the deed was not effective as a conveyance to Carolyn Santos of an interest in the property, because it did not have two subscribing witnesses as required by § 689.01, it should be regarded' as a valid contract by Santos to convey to himself and his wife, thereby creating in Carolyn Santos an equitable interest in the property, so as to preclude an execution levy on the judgment against Santos. As authority for that proposition the appellant cited Zimmerman v. Diedrich, Fla.1957, 97 So.2d 120. We find nothing in that decision to aid the appellant here. That case dealt with the question of whether a contract for sale of real estate, which did not have two subscribing witnesses, could be specifically enforced. In Zimmerman the Supreme Court did not hold or imply that a deed which does not have two subscribing witnesses would be valid to effect the transfer of an interest in real estate.

No reversible error having been shown, the order appealed from is affirmed.


text:
    Anicia MACHADO and Manuel Machado, her husband, Appellants, v. Salvador O’NEILL, M.D., Appellee.
    No. 75-1885.
    District Court of Appeal of Florida, Third District.
    May 28, 1976.
    Bryson & Berman, Miami, for appellants.
    George V. Lanza, Coral Gables, Sam Daniels, Miami, for appellee.
    Before BARKDULL, C. J., and PEARSON and HENDRY, JJ.
   PER CURIAM.

The appellee having confessed error in the entry of the summary judgment for the defendant in the court below, it is therefore ordered and adjudged that the summary judgment dated September 8, 1975 be and the same is hereby set aside, and this matter is returned to the trial court for further proceedings.


text:
    Carlos DE CASTRO, Appellant, v. Maria DE CASTRO, Appellee.
    Nos. 75-1028, 75-1834.
    District Court of Appeal of Florida, Third District.
    May 20, 1976.

      Schweitzer & Kosdan, Miami, for appellant.
    Brian Hersh, Miami, for appellee.
    Before PEARSON, HENDRY and NATHAN, JJ.
   PER CURIAM.

Carlos De Castro was the petitioner for a dissolution of marriage. He appeals the judgment of dissolution and assigns error to the allowance of alimony and costs to his former wife. The unusual fact in this case is that the wife shot and wounded the husband after the institution of the action but before final judgment. Carlos urges that under these circumstances, he ought not be required to pay alimony.

After final judgment, the court entered a money judgment against Carlos for unpaid temporary alimony. A second appeal from that order has been consolidated with the first appeal.

Carlos and Maria were married in 1947. They have two grown daughters who are not dependent. Carlos earns $9,600 a year as an airline reservations manager. Maria is 51 years of age and without financial means. Although she was obviously mentally distraught, she has not been declared incompetent.

The husband’s first point claims that the award of permanent alimony should be reversed because (a) there was no evidence of the wife’s financial need, and (b) the wife came into court with unclean hands. An award of permanent alimony is properly based upon the wife’s needs and the husband’s ability to provide for those needs. See Naster v. Naster, Fla.1964, 163 So.2d 264.

In the instant case, it is clear that the wife is not well, that she has no earning capacity; she is on welfare and has been a housewife and mother for 26 years. The husband is permanently employed and has the ability to contribute to her support. The award of $50 a week is within the trial judge’s discretion. See Rogoff v. Rogoff, Fla.App. 1959, 115 So.2d 456.

Appellant’s second and third points claim error in the allowance of costs and the admission into evidence of psychiatric reports of the wife’s condition. Neither point presents reversible error.

The husband argues that he ought not have to pay the accrued temporary alimony and that the court ought not have allowed the collection of past due alimony pursuant to Fla.Stat. § 61.12. The only law cited for appellant’s position is Noyes v. Cooper, Fla.App.1968, 216 So.2d 799. In that case, the judgment was not for alimony but for sums due on a property settlement. The cited section is clearly applicable to the situation now before us.

We have considered other arguments advanced and find no reversible error.

Affirmed.


text:
    Dorothy BUCHMAN, Individually and as Executrix of the Estate of Samuel Buchman, Deceased, Appellant, v. George W. HIRSCH et al., Appellees.
    No. 75-1155.
    District Court of Appeal of Florida, Third District.
    June 2, 1976.
    Dorothy Buchman, in pro per.
    I. Eric Leef, Miami Beach, for appellee.
    Before PEARSON, HENDRY and NATHAN, JJ.
   PER CURIAM.

Affirmed on authority of the rule in Schanker v. Wollowick, Fla.App.1962, 143 So.2d 509, and Jovanovich v. Aero-Tech, Inc., Fla.App.1973, 277 So.2d 555.


author: HOBSON, Judge.

text:
    MADISON DRUG COMPANY, a Florida Corporation, Appellant, v. HILLSBOROUGH COUNTY AVIATION AUTHORITY, a Public Body Corporate, Appellee.
    No. 74-339.
    District Court of Appeal of Florida, Second District.
    July 9, 1976.
    Rehearing Denied Aug. 5, 1976.
    Charles W. Pittman of Macfarlane, Ferguson, Allison & Kelly, Tampa, for appellant.
    Stewart C. Eggert of Allen, Dell, Frank & Trinkle, Tampa, for appellee.
   HOBSON, Judge.

Appellant, plaintiff below, filed its complaint against appellee, defendant below, charging that it had been constructively evicted from premises leased to it by the defendant. Plaintiff leased premises from the defendant in the terminal building at Tampa International Airport in which it conducted a retail business. The lease expired on July 20, 1972, when plaintiff had the right to extend the lease for an additional ten years ending July 20, 1982. The alleged constructive eviction occurred on April 15, 1971, when the defendant moved all of the passenger facilities to the new Tampa International Airport Terminal Complex. Plaintiff alleged that its business and beneficial enjoyment of the premises depended upon a flow of aircraft and related customers, which business and beneficial enjoyment were destroyed upon the closing and abandoning of the premises as an airlines terminal building. The plaintiff abandoned the premises on April 19, 1971.

After a nonjury trial the court entered its final judgment in favor of the defendant on the basis that the plaintiff either had actual or implied notice that the defendant might construct a new terminal building before the expiration of the term of the lease.

The original lease was entered into on May 12, 1952. The initial term of the lease was for a period of ten years commencing July 20, 1952, and contained a provision giving the plaintiff an option to renew for a period of ten years. On February 10, 1958, a supplemental agreement was entered into between the parties. Said supplemental agreement contains the provisions upon which the lower court entered its final judgment. The plaintiff appeals the final judgment and the defendant cross-appeals a portion of the final judgment which held that the plaintiff was entitled to renew the lease for a period of ten years upon the termination thereof on July 20, 1972. We affirm the final judgment, thereby making the cross-appeal moot.

The trial court entered a comprehensive 20-page final judgment setting forth its reasoning in reaching its decision. The provisions of the supplemental agreement of February 10, 1958, upon which the trial court reached its conclusion that the plaintiff either had actual or implied notice that the defendant might construct a new terminal building before the expiration of the term of the lease as modified by the 1958 supplemental agreement, are paragraphs 1(d) and 1(f) which provide:

“(d) In the event that the business operations of the Lessee and Assignee under the terms and provisions of the original lease or any extention thereof shall be acceptable to the Lessor in its sole judgment and there shall be built or constructed during the term of this lease at Tampa International Airport and in the vicinity of the Airlines Terminal Building on Columbus Drive an additional building for use as a passenger terminal and there shall be available in such additional building an area or space for the purpose of a lunchroom or restaurant of the type and character operated by the Lessee and Assignee under this lease or any space for shops selling merchandise such as is dispensed by the Lessee and Assignee under this lease, or any coin operated device or dispensing machines, (other than toilet facilities), of the type and character operated by the Lessee and Assignee under this lease, the Lessor agrees to lease such additional space or to license the operation of the aforesaid coin operated devices or dispensing machines (other than toilet facilities) to the Lessee at a rental and upon such covenants and conditions as may be determined or required by the Lessor. In the event that any such space or right shall become available, and the operations of the Lessee and Assignee shall be acceptable to the Lessor as aforesaid, the Lessor shall notify the Lessee and Assignee in writing by registered mail giving the Lessee and Assignee fifteen (15) days in which to determine whether the Lessee and Assignee wishes to lease such space and if the Lessee and Assignee, within fifteen (15) days after receiving such written notice, shall not enter into a lease or a license agreement with the Lessor at a rental and upon covenants and conditions as may be determined or required by the Lessor, then the Lessor will have the right to lease such space and such right to any other third person or persons, firm or corporation that the Lessor may determine.”
“(f) During the remainder of the term of the original lease, as amended by this supplement, if the Lessor determines at any time to relocate the space leased to the Lessee for its business purposes, the Lessor shall have full power and authority to make provision in any present or future Airline Terminal Building at Tampa International Airport of equivalent space for the operation of the Lessee’s business and upon giving the Lessee -days notice in writing, the Lessee covenants and agrees to move its business operations to the newly designated space or area and to pay all expense of such moving, including all costs and expense that may be necessary to furnish and equip the new space or area with machinery, equipment, furnishings or any other matter that may be required in the operation of the Lessee’s business; the sole obligation of the Lessor is to furnish to the Lessee at such new location, equivalent space for the operation of the Lessee’s business.”

The trial court in its final judgment held:

“It is the opinion of this Court that the provisions of the above quoted paragraphs 1(d) and 1(f) of said Supplemental Agreement placed the Plaintiff on notice of the fact that the Defendant had the right to and that it might construct another terminal during the term of the lease as modified by said Supplemental Agreement or during the period covered by the option to renew. Consider the following portion of said paragraph 1(d):
- - - - and there shall be built or constructed during the term of this lease at Tampa International Airport and in the vicinity of the Airlines Terminal Building on Columbus Drive an additional building for use as a passenger terminal - - - -’
This language certainly placed the Plaintiff on notice that the Defendant might construct another passenger terminal during the term of the lease. Counsel for the Plaintiff, although not conceding this, has argued that the above language would, in any event, have to be construed as requiring the Defendant to maintain the then existing terminal as an airport terminal because of the words ‘an additional building for use as a passenger terminal.’ Plaintiff’s counsel argues that the word ‘additional’ as used therein must be construed as modifying or applying to the words ‘passenger terminal’ rather than the word ‘building’ and suggests that at the very most this language might be construed to permit the Defendant to build another terminal building to operate in conjunction with the terminal then in existence and, in counsel’s words, move ‘one or two’ airlines to the additional terminal. The problems which would arise, so far as this action is concerned, by the adoption of this suggestion will be commented upon hereinafter.
“But assuming for the sake of argument that the last above quoted language from said paragraph 1(d) is construed in accordance with said suggestion of Plaintiff’s counsel, what effect is to be given to the following language from paragraph 1(f) of said Supplement Agreement of February 10th, 1958?
“ ‘During the remainder of the term of the original lease as amended by this supplement, if the Lessor determines at any time to relocate the space leased to the Lessee for its business purposes, the Lessor shall have full power and authority to make provision in any present or future Airline Terminal Building at Tampa International Airport of equivalent space - - -
Surely this language cannot be construed as being limited to an ‘additional terminal’ in the context of the argument of Plaintiff’s counsel with reference to the language of paragraph 1(d) as above mentioned. The portion of paragraph 1(f) above quoted has to suggest that Plaintiff was aware on February 10th, 1958 of the possibility of a ‘future Airline Terminal Building at Tampa International Airport’ being constructed by the Defendant ‘during the remainder of the term of the original lease as amended by said supplement.’ This is exactly what did happen and what the Plaintiff now contends resulted in it being constructively evicted from the premises so leased to it.
“The language in paragraph 1(f) of said Supplemental Agreement contains no reference to an ‘additional building’ as was the case in paragraph 1(d) thereof. One would think that the words ‘future Airline Terminal Building - - - during the remainder of the term of the original lease as amended by this supplement’ fairly shout the fact that the Defendant was at least contemplating a new terminal building as far back as 1958, and that if this took place, it, the Defendant, could require the Plaintiff to move its business operations to such new terminal. Despite this fact, the Plaintiff appears to have been content to accept the advantages which apparently accrued to it under the Supplemental Agreement of February 10th, 1958 without raising any question as to what would happen if such a new terminal was constructed. There has been no suggestion in the record in this case that the Defendant took any unfair advantage of the Plaintiff in drafting the provisions of the said Supplemental Agreement. In fact, one of the depositions of William Earl Thompson, the attorney for the Defendant in 1958, indicates that there were numerous conferences between him and representatives of the Plaintiff before the language of said Supplemental Agreement was finally acceptable to the Plaintiff.”
“It is the opinion of this Court that after the execution of the Supplemental Agreement of February 10th, 1958 the Plaintiff either had actual or implied notice that the Defendant might construct a new terminal building before the expiration of the term of the lease, as so modified, or of the option contained therein. Such notice should have also charged the Plaintiff with knowledge of what effects would likely result from the construction of a new terminal. It is hardly reasonable to think that the Defendant would have erected a new terminal just to provide the same facilities as already existed in the old one, and therefore it would be reasonable to expect that if it erected a new terminal with improved facilities for passengers and aircraft that the airlines using the old facilities would move to the new one. It is also reasonable, in the opinion of this Court to assume that the Plaintiff realized that if any of the airlines had attempted to continue to operate out of the old terminal, they would have quickly been forced to move to the new one because of dissatisfaction of its customers. Had the Plaintiff desired to protect itself against the effects of a new terminal building it could have done so by a covenant on the part of the Defendant not to build a new terminal during the term of its lease and option at the time of the entry into the Supplemental Agreement of February 10th, 1958. It is conceivable that the reason that the Plaintiff did not do this was because it felt that under the provisions of said Supplemental Agreement it had an option to obtain space in any new terminal (a matter which has been previously decided against the Plaintiff in the case of Madison Drug Company v. Hillsborough County Aviation Aiithority — Case No: 175848 of this Court from which decision an appeal was taken and subsequently voluntarily dismissed) but this would have afforded no basis for the claim of constructive eviction from the former terminal. Rather this contention would have been a recognition on the part of the Plaintiff of the right of the Defendant to construct and operate the new terminal.”

We have carefully reviewed the lease and 1958 supplement thereto, together with the entire record and briefs, and hold that the trial court was eminently correct. The other issues raised in this appeal have been carefully considered and found to be without merit. Therefore, the final judgment appealed is.

AFFIRMED.

McNULTY, C. J., and SCHEB, J., concur.


author: BOYER, Chief Judge.

text:
    HERITAGE SUPPLY COMPANY, Appellant, v. Morgan A. GRAHAM, d/b/a Graham Tile, Ltd., Appellee.
    No. BB-497.
    District Court of Appeal of Florida, First District.
    July 15, 1976.
    John S. Winnie, of Winnie, Winnie & Uhrig, Gainesville, for appellant.
    Ronald A. Carpenter, Gainesville, for ap-pellee.
   BOYER, Chief Judge.

By this interlocutory appeal appellant, who was plaintiff in the trial court, seeks review of an order of the trial court setting aside a final judgment entered consequent upon default and setting aside the default. No useful purpose will be accomplished by meticulously reciting the uncontroverted facts giving rise to this appeal. Suffice to say that, generally speaking, the vacating of defaults and judgments entered thereon is in the sound, but not unfettered, discretion of the trial court subject to the oft announced principle that if there is any reasonable doubt, it should be resolved in favor of allowing a trial on the merits. (See Metcalf v. Langston, Fla.App. 1st., 1974, 296 So.2d 81 and authorities therein cited). Although it is difficult to excuse the almost flagrant manner in which appellee’s attorney handled this case, we cannot say that as a matter of law the learned, experienced and able trial judge abused his discretion. Appellant’s reliance for reversal on Metcalf v. Langston, supra, is misplaced. While reaffirming the principles in that case reiterated, we again point out that there the trial court denied a motion to vacate; which action, under the circumstances of that case, we affirmed.

The rule that actions of a trial judge reach an appellate court clothed with a presumption of correctness is also applicable to review of orders incident to vacating defaults and final judgments consequent thereon.

AFFIRMED.

McCORD & SMITH, JJ„ concur.


text:
    Mary Alice MARTIN, Appellant, v. STATE of Florida, Appellee.
    No. 75-885.
    District Court of Appeal of Florida, Fourth District.
    July 16, 1976.
    Richard L. Jorandby, Public Defender, and Daniel T. O’Connell, Asst. Public Defender, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Margarita Esquiroz, Asst. Atty. Gen., Miami and Ivan Chesler, Legal Intern, South Miami, for appellee.
   PER CURIAM.

Defendant appeals a conviction for possession of a concealed weapon assigning as error denial of a motion for a mistrial following the state’s eliciting of testimony concerning defendant’s remaining silent after being arrested and being given Miranda warnings. The record reflects that during direct examination by the state, the arresting officer testified that after reading the defendant her Miranda rights, she remained silent, i. e. “at that time she didn’t make no statement”. It is our understanding from a reading of Bennett v. State, 316 So.2d 41 (Fla.1975), at page 44, that any comment upon defendant’s right to remain silent is “of constitutional dimension and warrants reversal without consideration of the doctrine of harmless error.” See also Bostic v. State, 332 So.2d 349, Fourth District Court of Appeal, opinion filed May 14, 1976; United States v. Hale, 422 U.S. 171, 95 S.Ct. 2133, 45 L.Ed. 2d 99 (1975); Doyle v. Ohio, - U.S. -, 96 S.Ct. 2240, 49 L.Ed.2d 91, 44 LW 4902 opinion filed June 17, 1976. Moreover, Bennett v. State, supra, characterizes such comments as fundamental error. Accordingly, the judgment and sentence of conviction are reversed and the cause remanded for a new trial.

REVERSE AND REMAND.

MAGER, C. J., and WALDEN and ALDERMAN, JJ., concur.


author: DOWNEY, Judge.

text:
    Joseph BONURA, Appellant, v. Irene B. HOLLOWAY, Appellee.
    No. 76-20.
    District Court of Appeal of Florida, Fourth District.
    July 16, 1976.
    G. William Allen, Jr., of Walton Lantaff Schroeder Carson & Wahl, Fort Lauder-dale, for appellant.
    Carol M. Anderson of Anderson & Anderson, Fort Lauderdale, for appellee.
   DOWNEY, Judge.

Irene B. Holloway sued Joseph Bonura for malpractice arising out of dental work performed by Bonura. Bonura filed a motion to dismiss the complaint, asserting that Holloway’s complaint should be dismissed because (1) Holloway had failed to pursue the administrative remedies set forth in Section 768.133(2), Florida Statutes (1975), and (2) “on its face the Complaint shows that the Statute of Limitations has run for Plaintiff’s Claim.”

On November 25, 1975, the court entered the following order:

“THIS CAUSE having come before the Court on November 19, 1975, on Defendant’s Motion to Dismiss, and the Court having heard argument of counsel, and being otherwise fully advised in the premises, it is
“ORDERED and ADJUDGED
“THAT Defendant’s Motion to Dismiss is hereby denied.
“It is further ORDERED and ADJUDGED that Defendant shall have fifteen days in which to file an answer to the complaint.”

The order was filed November 26, 1975. On December 5, 1975, Bonura submitted the following motion to the court:

“The Defendant, JOSEPH BONURA, D.D.S., respectfully requests the Court to Vacate that certain Order dated November 25, 1975 denying Defendant’s Motion to Dismiss, and to substitution (sic) therefore, the Defendant’s Proposed Order, wherein the basis of the Court’s determination is set forth and respectfully shows the Court that the present Order does not give the Defendant the basis for an Interlocutory Appeal, that the question of whether Dentists do fall within the realm of the Medical Mediation Act is of great importance to the Dentists of this State and that therefore, an Order denying this Defendant’s Motion should specifically relate to the grounds therefore.”

On December 8, 1975, the trial court entered an order vacating the order filed November 26, 1975, and entered a new order denying Bonura’s motion to dismiss:

“THIS CAUSE having come before the Court and the Court having considered the Defendant’s Motion, it is
“ORDERED AND ADJUDGED that the Defendant’s Motion to Dismiss on the grounds that the Statute of Limitations had run, is denied in that it does not affirmatively appear from the pleadings that this is the case, and it is
“FURTHER ORDERED AND ADJUDGED that the Defendant’s Motion to Dismiss on the grounds that the Plaintiff has failed to pursue her administrative remedies as set forth under Section 768.133(2), Florida Statutes, is hereby denied on the grounds that said Statute does not apply to Dentists and it is
“FURTHER ORDERED AND ADJUDGED that the Defendant shall have twenty (20) days from the date of said Order to file an answer to the Complaint herein filed.”

On December 30, 1975, Bonura filed a notice of interlocutory appeal seeking review of the new order denying his motion to dismiss.

Rule 4.2, F.A.R., does not provide for an interlocutory appeal to review the order in question. It is an interlocutory order in a case formerly cognizable at law. Be that as it may, if review had been timely sought we would consider treating this improvidently taken interlocutory appeal as a petition for common law certiorari as the court did in Mount Sinai Hosp. of Greater Miami, Inc. v. Wolfson, 327 So.2d 883 (Fla.3d DCA 1976), because of the importance of the question involved.

However, in our judgment, review was not timely sought because the order under attack is an amended order, and the amendment did not materially change the original order. Therefore the only interlocutory order subject to any present review was the order filed November 26, 1976.

The rule which controlls here is stated in Betts v. Fowelin, 203 So.2d 630, 632 (Fla. 4th DCA 1967):

“ ‘ * * * Thus, the mere fact that a judgment previously entered has been reentered or revised in an immaterial way does not toll the time within which review must be sought. Only when the lower Court changes matters of substance, or resolves a genuine ambiguity, in a judgment previously rendered should the period within which an appeal must be taken or a petition for certiorari filed begin to run anew. The test is a practical one. The question is whether the lower court, in its second order, has disturbed or revised legal rights and obligations which, by its prior judgment had been plainly and properly settled with finality.’ ” (Emphasis added.)

The new order of December 8, 1975, did not disturb or revise any legal rights and obligations which the prior order filed November 26, 1975, had plainly settled. As a matter of fact we are at a loss to understand why Bonura wanted the second order entered. It seemingly added nothing to the case nor any advantage to Bonura.

Lest this be taken as paying homage to form over substance, we note that the question is one of jurisdiction. Should we hold that immaterial amendments to orders and judgments, interlocutory or final, can extend the time for appeal, then it would do violence to the rule requiring an appeal to be taken within a specified time from the rendition of the order or judgment.

Accordingly, because Bonura did not seek review of the order filed November 26, 1975, until December 30, 1975, this cause is dismissed for lack of jurisdiction. Cf. Shevin v. Public Service Commission, Supreme Court cases 48416 and 48404, Opinion filed May 12, 1976.

It is so ordered.

MAGER, C. J., and ALDERMAN, J., concur.


author: BARKDULL, Chief Judge.

text:
    DADE COUNTY, a political subdivision of the State of Florida, and Willie Laster, Appellants, v. Sandra LAMBERT et al., Appellees.
    No. 74-1748.
    District Court of Appeal of Florida, Third District.
    Jan. 20, 1976.

      Stuart Simon, County Atty., and Thomas F. Valerius, Asst. County Atty., for appellants.
    Alldredge & Gray, Miami, for appellees.
    Before BARKDULL, C. J., HENDRY, J., and PIERCE, WILLIAM C., (Ret.), Associate Judge.
   BARKDULL, Chief Judge.

The case sub judice arose from a collision between a bus and an automobile, which occurred on June 13, 1967. As a result of that accident the appellees, on June 5, 1973, filed suit against the appellants, Metropolitan Dade County and Willie Laster, as owner and operator of the bus, respectively. The suit was also filed against one William Hammaker, the driver of the automobile, but he was never served. Service was perfected on Metropolitan Dade County on June 7, 1973, and upon Laster on March 27, 1974. The County moved for a judgment on the pleadings, alleging § 95.24 Fla.Stat., [providing for a one-year statute of limitations for actions against a municipality applied to actions against the County] barred the instant action. The motion was denied. Thereafter, on June 10, 1974, a default judgment was entered against Laster.

The cause was called for trial and, on October 29, 1974, the morning of the trial, the appellees moved ore tenus for a directed verdict against the County on the basis of their default against Laster. Laster argued to vacate the default and to proceed to trial on the merits. The motion to vacate was denied and the trial court directed a verdict as to liability against each of the appellants. The cause proceeded to jury trial on the issue of damages, resulting in a judgment for each of the appellees in the amount of $2,500.00.

The appellants have raised five points for this court’s consideration, which are as follow:

1. The trial court erred in failing to hold the one-year statute of limitations, set forth in § 95.24, Fla.Stat., applied to the County barring the instant suit.

2. The trial court erred in refusing to vacate the default judgment entered against Laster.

3. The trial court erred in directing a verdict as to liability against Metropolitan Dade County.

4. The complaint herein did not meet the jurisdictional requirements of the trial court, in that there was not a good faith allegation of the amount of claim necessary to invoke the trial court’s jurisdiction.

5. Closing argument of appellees’ counsel was so improper as to prejudice the minds of the jury and deprive the appellants of a fair trial.

As to point one, the trial court was correct. The appellant, Metropolitan Dade County, in reliance upon those authorities likening it to a municipality in various acts taken by the County, now seeks to have this court declare that § 95.-24, Fla.Stat.1974, is applicable to the County. This, we cannot do. Chapter 95, Fla. Stat.1974, sets forth two distinct Statutes of Limitations; one applying to counties and the other to municipalities. Section 95.08, Fla.Stat., 1974 bars any claim against a county, unless the claim is presented to the County Commission within one year from the date of the accident. Section 95.24, Fla.Stat.1974 bars any claim against a municipality, unless suit is filed within one year of the date of the accident. The County has in the past recognized that it was governed by § 95.08, Fla. Stat., 1974 [Butts v. County of Dade, Fla.App.1965, 178 So.2d 592], and it will not be permitted at this time to assert it is entitled to protection as a municipality under § 95.24, Fla.Stat.1974. To permit the County to assert such a position would, in effect, permit it to pick and chose which statute of limitations it wished to rely upon, dependent on the facts of the case at hand. Therefore, the four-year statute of limitations, provided for in § 95.11(3), Fla.Stat., applies herein.

The second point is also without merit. In order to vacate a default there must be a showing of a meritorious defense and excusable neglect. The appellants’ motion to vacate the default was made ore tenus at time of trial; it contained a mere allegation of a meritorious defense and excusable neglect for Laster’s failure to answer. This is insufficient basis upon which to vacate the default. Thomason v. Jernigan, Fla.App.1962, 146 So.2d 905; Winter Park Arms, Inc. v. Akerman, Fla.App.1967, 199 So.2d 107; Empire Electric Co. v. R. J. Hunt Construction Co., Inc., Fla.App. 1972, 264 So.2d 114. The appellant-County also complains of failure to give it notice of default taken against Laster. Laster, in his own right, is only entitled to notice of application for default under Rule 1.500(b), RCP, if he had filed or served any paper in the action. There was no showing that he had done so, and the default could be entered against him without any notice. Certainly the County would not be entitled to any greater rights than Laster, against whom the default was entered.

The appellants’ third point appears meritorious. The trial court directed a verdict as to liability against the County, based solely on the default of Laster, notwithstanding the County’s denial of liability. The County’s liability herein is vicarious, based upon a finding that Laster was negligent, causing the injury. The failure of Laster to plead, resulting in a default against him cannot deprive the County of its right to have a jury determination of its defense, notwithstanding that said defense would be common to Laster. The default of one defendant, although an admission by him of the allegations of the complaint, does not operate as an admission of such allegation as against a contesting co-defendant. Marc Bellaire, Inc. v. Fleischman, 185 Cal.App.2d 591, 8 Cal.Rptr. 650; Fawkes v. National Refining Co., 341 Mo. 630, 108 S.W.2d 7; Compare 98 A.L.R. 938-957. Thus, it was error to direct a verdict against the County based on Laster’s default.

The fourth point is also without merit. The jurisdiction of the court is to be determined by the sum in good faith claimed or put into controversy when the action is commenced, and not by the amount of recovery. Tantillo v. Mileman, Fla.1956, 87 So.2d 413; Curley v. Miami Transit Company, Fla.App.1962, 141 So.2d 299; Castellano v. Bader Bros. Van Lines, Inc., Fla.App. 1968, 208 So.2d 842. There is nothing in the record herein showing the demands of the plaintiffs herein were not made in good faith; thus it was not error to deny the appellants’ motion to transfer the cause to the County Court.

As to the last point raised on appeal, we find that argument of counsel complained of herein was not so flagrant as to inflame the minds of the jury, resulting in prejudice to the appellants. Therefore, this point is without merit.

Based on the foregoing, so much of the final judgment as relates to Metropolitan Dade County, is reversed and remanded for a new trial on the issues of liability and damages. That portion of the judgment relating to Laster is hereby affirmed.

Reversed in part with directions; affirmed in part.

      . Pursuant to Ch. 74-382, Laws of Florida, 1974, §§ 95.08, 95.24, Fla.Stat. have been repealed effective January 1, 1975, and there is no longer a shortening of the statute of limitations relating to municipalities nor is there any requirement that limits the time for filing a claim with either a county or a municipality.

      . Art. 3, § 11(a) (7), Constitution of the State of Florida (1968), prohibits the Legislature from passing special laws or general laws of local application pertaining to limitations of time for bringing suit. See : Wilson & Company, Inc. v. City of Jacksonville, 5th Cir. 1948, 170 F.2d 876. Art. 8, § 11(1) (f), Constitution of the State of Florida (1885), pertaining to Dade County Home Rule, provides : “ * * * that there shall be no power to abolish or impair the jurisdiction of the Circuit Court * * * or to abolish any other court provided for by this Constitution or by general law, * * * ”. Thus, Metropolitan Dade County does not have the power to shorten the statute of limitations for bringing suit in actions against the County. Inasmuch as the Legislature has not seen fit to do so by general law, the County must therefore be governed by the four-year statute of limitations provided for in § 95.11(3), Fla.Stat.


author: BLOODWORTH, Justice. MADDOX, Justice

text:
    William J. BAXLEY, etc. v. BIRMINGHAM TRUST NATIONAL BANK et al. (two cases).
    SC 1217, SC 1218.
    Supreme Court of Alabama.
    July 9, 1976.

      William J. Baxley, Atty. Gen., and James S. Ward, Asst. Atty. Gen., for appellants.
    Drayton T. Scott and Kirby Sevier, Birmingham, for The American Bible Society.
    Gilbert E. Johnston, Sydney Lavender and John D. Quenelle, Birmingham, for Alfred Swedlaw, Administrator ad litem of the Estate of W. L. Allan, deceased.
   BLOODWORTH, Justice.

The Attorney General of Alabama, The Honorable William J. Baxley, as the representative of the unknown beneficiaries of a public trust, appeals from a judgment that the allegedly public trust here in question was never effectively created and that, therefore, a bequest left to that trust under the will of Mrs. Elmorene B. Allan must fail.

Mrs. Allan’s husband predeceased her by a little more than a year. Under the terms of his will, Mrs. Allan received a life estate in a marital trust with a general testamentary power of appointment over the remainder of the marital trust. The basic issue before the trial court in this case was whether or not Mrs. Allan effectively exercised her power of appointment thereby permitting the remainder of the marital trust property to pass under her will rather than under her husband’s. In the event that Mrs. Allan failed to exercise her power effectively, Mr. Allan’s will provides that the property subject to his wife’s power passes to a family trust set up under his will. (The trust principal remaining at the death of the family beneficiaries is to be distributed to various charities, including the American Bible Society, one of the parties to this appeal.)

Mrs. Allan, in a will dated October 26, 1970, attempted to exercise her power of appointment by means of the following provisions:

“I hereby exercise the power of appointment to direct the disposition of certain property given me under the provisions of the Will of my beloved husband, W. L. Allan, by his Will dated March 20, 1969, and in the specific exercise of said power I give, devise and bequeath the entire estate over which I have said power of appointment to The First National City Bank of New York, New York (and to such successor corporation having trust powers as shall succeed to the business of said Bank by purchase, merger, consolidation or change of charter or name) in trust, nevertheless, for the uses and purposes and upon the terms and conditions and with the powers and duties hereinafter stated:
“I direct that my trustee pay the income from the trust estate in quarterly installments to The Allan-Bryant Educational Foundation, Inc. who shall use said money in accordance with the provisions of the instruments by which said corporation was created. In the event my death occurs prior to the actual formation of said corporation, I direct that my executor do whatsoever is necessary to accomplish the creation of the corporation in accordance with the written terms and conditions which I have given to the law firm of Sadler, Sadler, Sullivan & Sharp.”

Although the proposed corporation was never formed, Mrs. Allan did take various steps to set up a trust, the purpose of which was to provide funds for the education of children of Baptist missionaries and members of the Allan-Bryant family. Mrs. Allan engaged attorneys, chose trustees, arranged an initial meeting of proposed trustees, deposited $25,000 in a savings account as the initial fund for the project, and arranged for an application to be filed with the IRS for a ruling as to whether the trust would be tax exampt. An unexe-cuted draft of the trust instrument was finally submitted to the IRS on March 1, 1971, for a ruling on its tax status. (It was feared that a favorable status might be denied because of the instrument’s provision for educational grants to members of Mrs. Allan’s family; Mrs. Allan allegedly directed that such provisions be deleted in the event that they prevented a tax exempt status.)

On March 26, 1971, Mrs. Allan republished her will by means of a codicil which included the following provision:

“ITEM TEN: It is my intention that by executing this codicil the items of personal property described in Item Nine, above, shall not be contained in or considered as a part of the ‘residue and remainder of my estate’ as described in Item Six of my said will dated October 26, 1970. All other gifts, devises, bequests, instructions, nominations and appointments in my said will dated October 26,1970, shall remain unchanged.”

Mrs. Allan died less than a month later, on April 15, 1971. The trust instrument was never executed.

The wills of both Mrs. and Mrs. Allan were admitted to probate with Birmingham Trust National Bank [BTNB] named as executor of both estates (as provided under both wills). In the proceeding to probate the will of Mrs. Allan, BTNB alleged that Mrs. Allan exercised her testamentary power of appointment. That allegation was contested by Alfred Swedlaw, the administrator ad litem of Mr. Allan’s estate. Mr. Swedlaw insisted that the property subject to Mrs. Allan’s power of appointment should be disposed of under the terms of Mr. Allan’s will due to Mrs. Allan’s alleged failure to exercise her power effectively.

Both estates were then transferred to circuit court where the circuit court determined that Mrs. Allan’s power was not effectively exercised and that consequently the property subject thereto remained a part of the estate of Mr. Allan and would pass under his will.

BTNB did not take an appeal. However, the Attorney General did appeal from the ruling of the circuit court, contending that the circuit court erred in failing to find clear evidence of the terms and conditions that Mrs. Allan intended for her “Allan-Bryant Educational Foundation, Inc.”

The appellees on this appeal are Mr. Swedlaw, the administrator ad litem of the estate of Mr. Allan and the American Bible Society, a remainderman under the family trust set up under Mr. Allan’s will. Both appellees argue that the Attorney General’s appeal should be dismissed or else the circuit court’s decree should be affirmed.

The basic substantive issue on this appeal is the validity of a gift in trust to a trust entity which the testatrix in her will directed her executor to create after her death where the will failed to specify the purposes or details of the proposed trust corporation.

It is undisputed that the entity referred to in Mrs. Allan’s will as “The Allan-Bryant Educational Foundation, Inc.” is nonexistent. However, this circumstance alone is not necessarily fatal to Mrs. Allan’s attempted gift. The authorities are in agreement that a valid testamentary gift may be made to a corporation to be formed in the future. 4 Scott, The Law of Trusts § 401.8, at 3163-64 (3d ed. 1967); 15 Am. Jur.2d Charities § 44 (1964); 14 C.J.S. Charities § 32 (1939). Courts have been favorably disposed towards such gifts where the gift is in trust to a charitable corporation and the title to the gift property is to vest in the trustees immediately upon the death of the testator, thereby precluding any possibility of a violation of the rule against perpetuities. 1 Bowe-Parker, Page on Wills § 17.6, at 817 (rev. ed. 1960). Similarly, in considering a gift to a nonexistent association, this Court has concluded,

“. . .If the trust is charitable and vests in the trustee at death of testator and payable according to directions in the will for the benefit of charities then or thereafter ascertainable, it vests within the meaning of the common law so as not to be affected by the principle of remoteness, as we have fully here discussed the subject. . . .”

Tumlin v. Troy Bank & Trust Co., 258 Ala. 238, 246, 61 So.2d 817, 824 (1952).

Moreover, this Court has on several occasions upheld the validity of a testamentary gift in trust to a nonexistent charitable entity when the will in question specifically authorized an executor or trustee to create such an entity upon the testator’s death. E. g., Henderson v. Troy Bank & Trust Co., 250 Ala. 456, 34 So.2d 835 (1948); Noble v. First Nat’l Bank, 236 Ala. 499, 183 So. 393 (1938).

However, in each of these instances, the will not only specified the particular charitable purpose of the proposed entity but also outlined various details governing its creation and operation. Because the wills in these cases gave rather full descriptions of the purposes arid details of the proposed entities, there was no need to refer to materials extrinsic to the will in order to create the proposed entity. In contrast, Mrs. Allan’s will does not specify the charitable purpose of the proposed entity, nor does it include instructions as to the details or manner in which the entity is to be created or operated. Mrs. Allan’s intent with regard to the creation of the proposed entity cannot be ascertained from the face of the will and, consequently, Mrs. Allan’s creation of the Allan Bryant Foundation cannot be accomplished without resort to extrinsic materials.

Resort to materials extrinsic to a will as an aid in construing it has not been freely permitted by our courts. To allow unbridled or extensive reference to extrinsic materials would undermine the policies behind the testamentary formalities required by statute. For this reason, resort to extrinsic materials has been restricted to those situations in which either the doctrine of “incorporation by reference” or the doctrine of “facts of independent significance” is applicable. Thus,

“. . .if the purposes of the charitable trust cannot be ascertained from the will itself or from an instrument properly incorporated in the will or from facts which have significance apart from their effect upon the disposition of the property, the intended charitable trust fails. . . . ”

4 Scott, The Law of Trusts § 358, at 2807 (3d ed. 1967).

The Attorney General argues that the will’s failure to specify the charitable nature of the trust and its charitable purposes can be overcome by reference to one of these doctrines. In the trial court voluminous materials extrinsic to the will were submitted purportedly to show the “written terms and conditions” which the will said had been given to the law firm of Sadler, Sadler, Sullivan & Sharp. We find that these extrinsic materials cannot be considered by the Court on the basis of either of the doctrines advanced by the Attorney General.

The requirements of the doctrine of “incorporation by reference” are not met in this case. “The document which is to be incorporated must have been in existence at the time the will was executed, it must be referred to in the will, and it must be identified by clear and satisfactory proof as the paper referred to.” Holt, Testate Succession in Alabama: Part I, 24 Ala.L.Rev. 221, 243-44 (1971).

Mrs. Allan’s will does not describe with sufficient certainty any writing allegedly intended to be incorporated into her will. In order for the doctrine of “incorporation by reference” to be applicable, the “reference must be so clear and distinct as that there can be no reasonable room for mistake of intention.” Matthews v. McDade, 72 Ala. 377, 385 (1882). We interpret this language from Matthews to mean not only that the testator’s intention to incorporate the writing must be clear but also that the identity of the writing intended to be incorporated must be clear.

“In order to operate as an incorporation, the will must refer to the instrument to be incorporated and must describe it with sufficient certainty that it may be identified and distinguished from other similar documents. . . .”
“. . . The description in the will must be in language which is so clear and unambiguous that the identity of the documents is readily established. . . .”

2- Bowe-Parker, Page on Wills § 19.23, at 96-97 (rev. ed. 1960).

Our review of the various extrinsic materials included in the transcript of this case has failed to convince us that any of those materials are clearly the materials referred to in Mrs. Allan’s will as “the written terms and conditions which I have given to the law firm of Sadler, Sadler, Sullivan & Sharp.” We agree with the trial court that the “voluminous writings, documents, letters and testimony [in the record] . . . are confusing, conflicting, and inconclusive . . .”

Nor can the doctrine of “facts of independent significance” be relied upon to justify reference to materials outside the will in this case because the requirements of that doctrine are not present here. “The chief requirement is that the document referred to in the will have a separate legal identity and existence, and not be solely for the purpose of supplementing the will.” Holt, Testate Succession in Alabama: Part I, 24 Ala.L.Rev. 221, 244 (1971).

The case of First Nat’l Bank v. Klein, 285 Ala. 505, 234 So.2d 42 (1970), considers the requirements of this doctrine. In that case, the testator attempted to make a devise to the “ ‘residuary legatees and residuary beneficiaries of his [Clarence’s] estate under his last will and testament.’ Id. at 509, 234 So.2d at 46. One issue before this Court was whether the devise could be found valid by reliance on the doctrine of “facts of independent significance.” The Court found that it could be: “The words, ‘residuary legatees and residuary beneficiaries of his estate under his last will and testament,’ designate who are the recipients of Clarence’s bounty and are sufficiently certain to identify the class intended and are not void for uncertainty.” Id.

In Klein, the facts of independent significance were set out in a document which had been clearly identified in the will being construed in Klein. Moreover, the document (Clarence’s will) which contained the independent facts had been admitted to probate, and therefore its genuineness was certain. In the instant case, the matter which the appellant refers to as facts of independent significance is rife with ambiguity and confusion.

Moreover, to allow reliance on the doctrine of “facts of independent significance” under the facts of this case would result in an impermissible evasion of the testamentary formalities. The protection of these testamentary formalities is vital, as has been previously recognized by this Court:

“Nothing we have written is to be understood to indicate that writings not a part of the will may be looked to either as advisory or mandatory in the construction of wills. All the safeguards thrown about the excution of wills would fail of their purpose, if by indirection they may be thus added to or modified.”

Parrish v. Gamble, 234 Ala. 220, 225, 174 So. 303, 306 (1937). We think the policies on which we are relying are well explained in the following:

“Where a writing is involved in the future act, the courts have frequently encountered some difficulty in finding sufficient independent significance to justify applying the doctrine. This is best seen in the cases where the future writing involves no inter vivos disposition of property but merely supplies a list of persons to be beneficiaries under a previously drawn will or a list of the property to be devised. Here the act referred to in the will has as its sole purpose that of permitting the testator to add to or change his will by unattested, nontestamentary methods. Such acts are obviously invalid and will be given no effect whatsoever, with the result being that the gift in the will fails. Where the reference in the will is to past acts or writings, as close a scrutiny to find independent significance is not required for there is clearly no alteration or change in the will on account of the act nor is a change of the will possible under such a reference. For future unattested writings to be brought within the scope of facts of independent significance, ‘The means so provided should not be any act whose sole or chief purpose is that of complementing the will. It should have the force and effect of an independent legal transaction.’ [quoting Evans, Incorporation by Reference, Integration and Non-Testamentary Act, 25 Colum.L. Rev. 879,902.]”

Bowe-Parker, Page on Wills § 1934, at 122 (rev. ed. 1960).

Before concluding some comment is necessary in reply to the Attorney General’s argument that the doctrines of cy pres and approximation can be applied so as to validate the charitable trust purportedly created under Mrs. Allan’s will.

The doctrine of cy pres and approximation were never intended as tools for use in the construction of wills or as a means by which a trust might be created. These theories have been used by this Court as a means by which the Court can allow deviation from the terms of an existing trust. E.g., Tumlin v. Troy Bank & Trust Co., 258 Ala. 238, 61 So.2d 817 (1952); Thurlow v. Berry, 249 Ala. 597, 32 So.2d 526 (1947); Lovelace v. Marion Institute, 215 Ala. 271, 110 So. 381 (1926). But these doctrines have never been applied by this Court as a means of creating a trust.

In the instant case, the first and primary obstacle which must be overcome if the trust is to be created is the rule that, generally, extrinsic materials are not admissible for the purpose of supplementing the testator’s desires as recorded in his will. The doctrine of cy pres is not available as a means of justifying reference to materials extrinsic to a will to create a trust. In the event that some other basis can be found for overcoming the rule against reference to extrinsic writings and the trust is created, the doctrines of cy pres and approximation may then become applicable for the purpose of changing the details under which the trust is to operate.

Furthermore, cy pres is applicable only to charitable trusts. “Whether a gift [by will] is charitable or not depends on the intention of the testator as manifested by the will.” 5 Bowe-Parker, Page on Wills § 41.7, at 185 (rev. ed. 1960). Accord, 4 Scott, The Law of Trusts § 351, at 2794 (3d ed. 1967). In this case there is no expression of charitable intent in the will itself. The doctrines of “incorporation by reference” and “facts of independent signi fiance” are not, as we have already stated, available under these facts to justify reference to extrinsic materials. Because no valid charitable trust was created by the will, the doctrine of cy pres is inapplicable. See First Portland Nat'l Bank v. Kaler-Vaill Mem. Home, 155 Me. 50, 151 A.2d 708 (1959).

In view of the result we have reached on the merits of this case, we find it unnecessary to consider the appellees’ contention that the Attorney General does not have standing to prosecute this appeal.

AFFIRMED.

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

MADDOX, J., dissents.

FAULKNER, J., not sitting.

MADDOX, Justice

(dissenting).

I believe the record in this case, and indeed the majority opinion itself, contains sufficient facts to show that Mrs. Allan intended to establish a charitable trust for the education of missionary children, and wanted the trust to qualify as a charitable trust for Internal Revenue Service purposes.

Consequently,- I would apply two basic rules:

(1) The intent of the testator is always the polestar in the construction of wills, and

(2) Charitable uses are favored, and the construction of all instruments where they are concerned is liberal in their behalf.

I believe that the majority errs in failing to find from the record that Mrs. Allan intended to make a gift to a charitable use. I believe that the majority makes this error because it has applied strict rules of construction instead of liberal ones as the law provides.

In Russell v. Allen, 107 U.S. 163, 167, 2 S.Ct. 327, 330, 27 L.Ed. 397 (1882), the Supreme Court of the United States said:

“. . . [T] rusts for public charitable purposes are upheld under circumstances under which private trusts would fail.”
Furthermore, I find no objection to the fact that Mrs. Allan directed her executor to form the corporation so it could take the gift. Testamentary gifts to charitable organizations, even those to be formed in the future, are valid. Jones v. Habersham, 107 U.S. 174, 2 S.Ct. 336, 27 L.Ed. 401 (1882).

In Ould v. Washington Hospital, Etc., 95 U.S. 303, 313, 24 L.Ed. 450 (1877), the court stated the rule:

“A devise to a corporation to be created by the legislature is good as an exec-utory devise. A distinction is taken between a devise in praesenti to one incapable, and a devise in futuro to an artificial being, to be created and enabled to take. Angelí & Ames on Corp., sec. 184; Porter’s Case, 1 Co. 24; Attorney General v. Bonyer, 3 Ves. 714; Inglis v. The Trustees of the Sailor’s Snug Harbor, 3 Pet. 99 [7 L.Ed. 617]; Sanderson v. White, 18 Pick. (Mass.) 328.
“At common law, lands may be granted to pious uses before there is a grantee competent to take. In the meantime, the fee will lie in abeyance. It will vest when the grantee exists. Town of Pawlet v. Clark, 9 Cranch. [(13 U.S.)] 292, [3 L.Ed. 735]. See also, Beatty v. Kurts, 2 Pet. [(27 U.S.)] [566], [7 L.Ed. 521] and Vincennes University v. Indiana, 14 How. [(55 U.S.)] 268, [14 L.Ed. 416].
“Charitable uses are favorites with courts of equity. The construction of all instruments where they are concerned is liberal in their behalf. Mills v. Farmer, 19 Ves. 487, McGill [Magill] v. Brown [Pa.B right 347], supra; Perry on Trusts, sect. 709. Even the stern rule against perpetuities is relaxed for their benefit.”

In short, I think the evidence is clear that Mrs. Allan intended to exercise the power of appointment given to her in her husband’s will, that she intended to make a gift to a charitable organization, which she directed her executor, not the courts, to form. The trial court and this court say that they cannot tell which instructions the testatrix was referring to when she mentioned them in her will. With all due respect, the testatrix did not direct the court to form the corporation, she directed her executor to form it.

There is no evidence, of which I am aware, that the purpose of the corporation to be formed was anything other .than for a charitable purpose. In Ould v. Washington Hospital, Etc., supra, the court said:

“A charitable use, where neither law nor public policy forbids, may be applied to almost anything that tends to promote the well-doing and the well-being of social man. Perry on Trusts, sect. 687.”

If we were dealing with a private trust, as opposed to a charitable one, I would agree with the majority opinion 100%. However, here, I would look to the extrinsic materials to answer this question — Did Mrs. Allan intend a charitable gift? If so, the law is clear that if a charitable use was intended, the testator’s wishes will be carried out.

I have personally reviewed the evidence in this case, and it is apparent to me that Mrs. Allan desired a specific category of scholarship recipients (children of missionaries), with the “family preference” provision to yield if it imperiled the charitable exemption for federal tax purposes. Consequently, I must respectfully dissent.

      . The only possible indication of a charitable intent is the inclusion of the words “Educational Foundation” in the proposed name for the corporation. The mere words “educational” and “foundation” have no inherent connotation of charitable purpose. Because either or both of these words might just as easily describe some noncharitable entity, their inclusion in the proposed name for the corporation is not sufficient in itself to indicate a charitable intent on the part of the testator. See First Portland, Nat’l Bank v. Kaler-Vaill Memorial Home, 155 Me. 50, 70, 151 A.2d 708, 719 (1959); In re Butro’s Estate, 155 Cal. 727, 735, 102 P. 920, 922 (1909); In re Bhattuck’s Will, 193 N.Y. 446, 452, 86 N.E. 455, 456 (1908).


author: FAULKNER, Justice.

text:
    Quin E. FLOWERS, Jr., as Administrator, etc. v. Evelyn L. FLOWERS.
    SC 1683.
    Supreme Court of Alabama.
    July 9, 1976.
    Steiner, Crum & Baker, and M. R. Nachman, Jr., Montgomery, Merrill & Harrison, Dothan, for appellant.
    Maury D. Smith and Charles S. Coody, Montgomery, Edward Jackson, Dothan, for appellee.
   FAULKNER, Justice.

This is an appeal from a decree of the Circuit Court of Houston County, holding the estate of an ex-husband liable for periodic payments under a contract to his ex-wife. We affirm.

On April 1, 1964, Henry Flowers and his wife Evelyn Flowers entered into an agreement and property settlement, and on April 2 this agreement was confirmed by the court. By its terms, the wife waived, released and relinquished all claims and rights of every kind against her husband and his estate, including “property rights or rights of support, maintenance, alimony, dower or inheritance . . .’’In consideration for this release the husband agreed, among other things, to pay his wife $250.-00 per month on May 1, 1964, and a like amount on the 1st day of each succeeding month thereafter until the death or remarriage of the [wife] . . .” The agreement further provided that it

. . shall become binding, conclusive and final as to both parties hereto, and their estates, their heirs, administrators, executors and assigns, and shall end this case and the Court shall not retain any further jurisdiction of this case for any later change at any later time, regardless of any change of circumstances of any kind which may occur between the parties.”

Moreover, the parties intended to make this property settlement “regardless of whether the marriage stands or is dissolved by divorce.”

On November 20, 1964, a final divorce decree was entered which incorporated by reference the April 1 agreement.

Until his death on November 11, 1965, the husband paid $250 a month to his wife. Since November, 1965, Quin Flowers, the administrator, has paid the periodic payments until June 1, 1975, a total of $28,500.

On May 13, 1975, the administrator filed a complaint seeking declaratory judgment and recovery of the $28,500 paid the wife since the husband’s death. She, in turn, filed a motion to dismiss, subsequently withdrawn, and a motion to require the administrator to make the monthly payments. In her answer she asserted that the administrator’s claim was barred by laches and by ratification of and acquiescence to the continued payments.

On January 6, 1976, the trial court held that it was the husband’s intent to bind himself, his estate and his personal representative to pay the monthly sum until his wife remarried or died.

The administrator appeals this decree.

The question is whether or not an agreement by the husband to pay a monthly sum to his ex-wife is an agreement to pay alimony. The administrator argues that the monthly payments are periodic alimony and that, therefore, they cease at the death of the husband as would the duty to support. We hold that such payments are not alimony and must be paid by the administrator.

In order to characterize the agreement we look to the intention of the parties. The parties expressly agreed to exchange a monthly sum and a surrender of all rights against the husband, including, but not limited to, alimony. Alimony as such is mentioned only in reference to the rights that the wife exchanges. Words of agreement will be given their ordinary meaning. See Callen v. Callen, 257 Ala. 226, 58 So.2d 462 (1952). Where the language of the contract is unambiguous and but one reasonable construction of the contract is possible, the court must expound it as it is made by the parties. Scherf v. Renfroe, 266 Ala. 35, 93 So.2d 402 (1957). By this agreement the wife surrendered more than her alimony right and in return-received more than the value of that right by virtue of the continuation of the periodic payments after the husband’s death. By definition, alimony is not founded on a contract but on the husband’s natural and legal duty to support. Black’s Law Dictionary 97 (rev. 4th ed. 1968). Here the parties have contracted for more than the duty to support. Since, at the time of the making of the agreement, the parties had not yet divorced, the wife surrendered her still viable right of dower, as well as her right to support.

A husband and wife may contract with each other but they are treated as standing in confidential relations. Tit. 34, § 74, Code of Alabama 1940 (Recomp. 1958). There is no question that the contract in this case is fair and valid. It was made without duress and the consideration was adequate. See Kirkland v. Kirkland, 236 Ala. 120, 181 So. 96 (1938). At the time of its making the wife was 59 and the husband 63 and they had been married 37 years. Both had adequate legal representation. The contract, prior to the administrator’s action in 1975, had been honored for nearly 11 years.

Furthermore, the parties explicitly agreed that the payments would continue until the wife remarried or died while the agreement was binding as to both parties “and their estates, their heirs, administrators, executors and assigns . . . ” For this clause to have any meaning as to the husband’s estate, it must mean that it requires his estate to continue paying the wife until she dies or remarries. The fact that the husband has bound himself and his estate for such an indefinite period oí time does not destroy the validity of the contract. Parties to a contract may either prescribe a fixed term for its duration or may make it depend on some prescribed contingency. Phenix City v. Alabama Power Co., 239 Ala. 547, 195 So. 894 (1940). The parties could just as easily have made the payments contingent on the husband’s dying. They chose not to do so. Courts cannot tamper with and change contract terms. Board of School Commissioners v. Hudgens, 274 Ala. 647, 151 So.2d 247 (1963).

The administrator may prefer that agreements of this type fall into the pigeonhole of periodic alimony or alimony in gross. However, the parties here chose not to provide alimony. It is not the province of the court to make or remake a contract for the parties, but its duty is confined to the interpretation of a contract which they have made for themselves. Scherf v. Renfroe.

Where husband and wife make a valid and enforceable contract for periodic payment which is not alimony, the terms of the agreement control even when merged in a divorce decree. The right of the wife to receive payments after the husband’s death is not affected by the intervening divorce decree which incorporates the former agreement. Annot., 147 A.L.R. 708 (1943). Since these payments are not alimony, the merger doctrine discussed in alimony cases such as Montgomery v. Montgomery, 275 Ala. 364, 155 So.2d 317 (1963) and Garlington v. Garlington, 246 Ala. 665, 22 So.2d 89 (1945), does not apply. Thus, the original agreement is controlling.

To hold otherwise would go against public policy. Agreement between spouses should be encouraged. Suits for divorce are not ordinary contract cases; the court is bound to act for the public which is, in effect, a third party, though the rights of the parties themselves must be fully respected. Hartigan v. Hartigan, 272 Ala. 67, 128 So.2d 725.

Freedom to contract is not dependent on who the parties are or what their relationship is to each other. Spouses are no less entitled to contract than business partners. By the very terms of the agreement, it is clear that the husband intended to bind himself, his estate and his personal representative to pay the monthly sum. He could not have made his wish more evident.

AFFIRMED.

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


author: JONES, Justice.

text:
    John Robert SPILLER v. Hettie MACKERETH et al.
    SC 1624.
    Supreme Court of Alabama.
    June 11, 1976.
    Rehearing Denied July 16, 1976.

      Rosen, Wright, Harwood & Albright, Tuscaloosa, for appellant.
    Zeanah, Donald, Williams & Hust, Tuscaloosa, for appellees.
   JONES, Justice.

This is an appeal from a suit based upon a complaint by John Robert Spiller seeking sale for division among tenants in common and a counterclaim by Hettie Mackereth and others seeking an accounting for Spiller’s alleged “ouster” of his cotenants. By agreement of the parties, the trial Court entered a decree on the complaint ordering the sale of the property. A trial was then held ore tenus on the counterclaim.

At the conclusion of the trial, the Judge entered a finding that Spiller had ousted Mackereth and that Mackereth’s attorney had performed services which inured to the benefit of the common fund resulting from the partition sale. Based on these findings, the trial Judge awarded Mackereth $2,100 rental and awarded Mackereth’s attorney $3,000 of the total attorney’s fee. Spiller appeals both the rental award and the attorney’s fee award. We reverse as to the rental award and affirm as to the attorney’s fee award.

The pertinent facts are undisputed. In February, 1973, Spiller purchased an undivided one-half interest in a lot in downtown Tuscaloosa. Spiller’s cotenants were Mackereth and the other appellees. At the time Spiller bought his interest, the lot was being rented by an automobile supply business called Auto-Rite. In May, 1973, Spiller offered to purchase Mackereth’s interest in the property. Mackereth refused and made a counteroffer to purchase Spiller’s interest which Spiller refused. Spiller then filed the complaint seeking sale for division on July 11, 1973.

In October, 1973, Auto-Rite vacated the building which it had been renting for $350 per month and Spiller begun to use the entire building as a warehouse. On November 15, 1973, Mackereth’s attorney sent a letter to Spiller demanding that he either vacate one-half of the building or pay rent. Spiller did not respond to the letter, vacate the premises, or pay rent; therefore, Mackereth brought this counterclaim to collect the rental she claimed Spiller owed her.

Since there is no real dispute concerning the essential facts in this case, we will limit our review to the trial Judge’s application of the law to the facts. On the question of Spiller’s liability for rent, we start with the general rule that in absence of an agreement to pay rent or an ouster of a cotenant, a cotenant in possession is not liable to his cotenants for the value of his use and occupation of the property. Fundaburk v. Cody, 261 Ala. 25, 72 So.2d 710, 48 A.L.R.2d 1295 (1954); Turner v. Johnson, 246 Ala. 114, 19 So.2d 397 (1944). Since there was no agreement to pay rent, there must be evidence which establishes an ouster before Spiller is required to pay rent to Mackereth. The difficulty in this determination lies in the definition of the word “ouster.” Ouster is a conclusory word which is used loosely in cotenancy cases to describe two distinct fact situations. The two fact situations are (1) the beginning of the running of the statute of limitations for adverse possession and (2) the liability of an occupying cotenant for rent to other cotenants. Although the cases do not acknowledge a distinction between the two uses of “ouster,” it is clear that the two fact situations require different elements of proof to support a conclusion of ouster.

The Alabama cases involving adverse possession require a finding that the possessing cotenant asserted complete ownership to the land to support a conclusion’ of ouster. The finding of assertion of ownership may be established in several ways. Some cases find an assertion of complete ownership from a composite of activities such as renting part of the land without accounting, hunting the land, cutting timber, assessing and paying taxes and generally treating the land as if it were owned in fee for the statutory period. See Howard v. Harrell, 275 Ala. 454, 156 So.2d 140 (1963). Other cases find the assertion of complete ownership from more overt activities such as a sale of the property under a deed purporting to convey the entire fee. Elsheimer v. Parker Bank & Trust Co., 237 Ala. 24, 185 So. 385 (1938). But whatever factual elements are present, the essence of the finding of an ouster in the adverse possession cases is a claim of absolute ownership and a denial of the cotenan-cy relationship by the occupying cotenant.

In the Alabama cases which adjudicate the occupying cotenant’s liability for rent, a claim of absolute ownership has not been an essential element. The normal fact situation which will render an occupying cotenant liable to out of possession co-tenants is one in which the occupying co-tenant refuses a demand of the other co-tenants to be allowed into use and enjoyment of the land, regardless of a claim of absolute ownership. Judd v. Dowdell, 244 Ala. 230, 12 So.2d 858 (1943); Newbold v. Smart, 67 Ala. 326 (1880).

The instant case involves a co-tenant’s liability for rent. Indeed, the adverse possession rule is precluded in this case by Spiller’s acknowledgment of the cotenancy relationship as evidenced by filing the bill for partition. We can affirm the trial Court if the record reveals some evidence that Mackereth actually sought to occupy the building but was prevented from moving in by Spiller. To prove ouster, Mackereth’s attorney relies upon the letter of November IS, 1973, as a sufficient demand and refusal to establish Spiller’s liability for rent. This letter, however, did not demand equal use and enjoyment of the premises; rather, it demanded only that Spiller either vacate half of the building or pay rent. The question of whether a demand to vacate or pay rent is sufficient to establish an occupying cotenant’s liability for rent has not been addressed in Alabama; however, it has been addressed by courts in other jurisdictions. In jurisdictions which adhere to the majority and Alabama rule of nonliability for mere occupancy, several cases have held that the occupying cotenant is not liable for rent notwithstanding a demand to vacate or pay rent. Grieder v. Marsh, 247 S.W.2d 590 (Tex.Civ.App.1952); Brown v. Havens, 17 N.J.Super. 235, 85 A.2d 812 (1952).

There is a minority view which establishes liability for rents on a continued occupancy after a demand to vacate or pay rent. Re Holt’s Estate, 14 Misc.2d 971, 177 N.Y.S.2d 192 (1958). We believe that the majority view on this question is consistent with Alabama’s approach to the law of occupancy by cotenants. As one of the early Alabama cases on the subject explains :

“Tenants in common are seized per my et per tout. Each has an equal right to occupy; and unless the one in actual possession denies to the other the right to enter, or agrees to pay rent, nothing can be claimed for such occupation.” Newbold v. Smart, supra.

Thus, before an occupying cotenant can be liable for rent in Alabama, he must have denied his cotenants the right to enter. It is axiomatic that there can be no denial of the right to enter unless there is a demand or an attempt to enter. Simply requesting the occupying cotenant to vacate is not sufficient because the occupying cotenant holds title to the whole and may rightfully occupy the whole unless the other cotenants assert their possessory rights.

Besides the November 15 letter, Mackereth’s only attempt to prove ouster is a showing that Spiller put locks on the building. However, there is no evidence that Spiller was attempting to do anything other than protect the merchandise he had stored in the building. Spiller testified that when Auto-Rite moved out they removed the locks from the building. Since Spiller began to store his merchandise in the building thereafter, he had to acquire new locks to secure it. There is no evidence that either Mackereth or any of the other cotenants ever requested keys to the locks or were ever prevented from entering the building because of the locks. There is no evidence that Spiller intended to exclude his cotenantfe by use of the locks. Again, we emphasize that as long as Spiller did not deny access to his cotenants, any activity of possession and occupancy of the building was consistent with his rights of ownership. Thus, the fact that Spiller placed locks on the building, without evidence that he intended to exclude the other cotenants, is insufficient to establish his liability to pay rent.

After reviewing all of the testimony and evidence presented at trial, we are unable to find any evidence which supports a legal conclusion of ouster. We are, therefore, compelled to reverse the trial Court’s judgment awarding Mackereth $2,100 rental.

We now turn to the issue of attorney’s fees. The trial Court awarded Macker-eth’s attorney $3,000 or 40% of the total award. Spiller’s attorney complains that this award is not justified by the evidence.

The allowance of attorney’s fees in sales for division is statutory. Title 46, § 63, Code, provides:

“In all suits and proceedings in the probate courts and circuit courts and other courts of like jurisdiction, where there is involved the administration of a trust, or where there is involved the sale of property for distribution, or where there is a partition in kind of real or personal property between tenants in common, the court having jurisdiction of such suit or proceeding may ascertain a reasonable attorney’s fee, to be paid to the attorneys or solicitors representing the trust, joint, or common property, or any party in the suit or proceeding, and is authorized to tax as a part of the costs in such suit or proceeding such reasonable attorney’s fee, which is to be paid when collected as the other costs in the proceeding to such attorneys or solicitors as may be directed or ordered by the court and to be a lien on the several parts in case of partition in kind.”

As Spiller’s attorney points out in his brief, the allowance of attorney’s fees under Title 46, § 63 is on the basis of and solely for benefits inuring to the common estate and the tenants in common. Pate v. Law, 277 Ala. 608, 173 So.2d 596 (1965). The awarding of attorney’s fees in partition sales is entrusted to the sound discretion of the trial Judge, and, on review, this Court will not disturb the award without a showing that the trial Judge abused that discretion. Broughton v. Nance, 244 Ala. 499, 14 So.2d 505 (1943). There was evidence in the record that Mackereth’s attorney placed advertisements in the Tuscaloosa News for the sale for division. It is also a matter of record that there was competitive bidding at the sale and that Spiller himself actually bought the property. Any efforts of Mackereth’s attorney to encourage competitive bidding, such as placing newspaper advertisements, would have the effect of increasing the total fund inuring to the common estate. Therefore, we are of the opinion that the trial Judge did not abuse his discretion in making the award of Mackereth’s attorney. We affirm the attorney’s fee award.

AFFIRMED IN PART, REVERSED IN PART AND REMANDED.

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


author: EMBRY, Justice.

text:
    Lizzie Hadley SKIPPER v. SOUTH CENTRAL BELL TELEPHONE COMPANY, a corp.
    SC 1591.
    Supreme Court of Alabama.
    July 9, 1976.

      Charles C. Partin, Bay Minette, for appellant.
    Atley A. Kitchings, Jr. and J. Richard Teel, Birmingham, J. B. Blackburn, Bay Minette, for appellee.
   EMBRY, Justice.

The principal issue on this appeal is whether the trial court’s oral instruction to the jury, was erroneous in requiring the jury to first find compensatory damages in order to award punitive damages.

Lizzie Hadley Skipper, plaintiff below, appeals from a judgment on a jury verdict that denied damages claimed of South Central Bell Telephone Company, defendant below, for wrongfully terminating her telephone service.

We affirm.

Facts

On 18 March 1974, the telephone company terminated Mrs. Skipper’s service at her unlisted number, 937-8054, for nonpayment of her January bill. She claimed she had never received notice that the January bill was due until she was called by the telephone company on 1 March. She testified that in this call she informed the telephone company she had, on 28 February, mailed a money order for the exact amount due, $33.87. The company’s evidence was that two notices had been mailed to her before the call.

A money order for $33.87 was cashed by the telephone company the day before service was terminated. There was nothing on the money order to identify either an account number or a telephone number. Her unlisted telephone number could not be identified by the company’s bookkeeping department without an account number shown on the remittance. The directory listed Lizzie Hadley, number 937-8739, but the account for that number was in the name of her former husband, Buford Had-ley. It was to this account the $33.87 was credited. Mrs. Skipper says she made repeated requests that service be restored but that the telephone company demanded a new deposit of $75 as a condition to doing so. After she employed an attorney, service was restored without requiring her to put up a new deposit.

The Case

Mrs. Skipper’s claim for damages was for wrongfully, and willfully terminating, and refusing to restore her phone service. She claimed punitive damages also, and alleged her injuries were loss of income, embarrassment, humiliation, and inconvenience. The telephone company answered, denied all, and asserted contributory negligence by Mrs. Skipper. On motion the latter defense was stricken. The verdict was for the telephone company. Mrs. Skipper moved for a new trial on the grounds that certain portions of the court’s oral jury instruction were erroneous. The motion was denied.

The Principal Issue

May punitive damages be awarded only if there is actual injury which would authorize the jury to award compensatory damages ?

The governing principle is that no damages, compensatory or punitive, may be awarded unless the jury finds there has been actual injury.

The oral jury instructions contained:

“Now, the Plaintiff has asked for damages in two forms. One is the compensatory damages. And the purpose of awarding compensatory damages is to fairly and reasonably compensate the injured party for loss or injuries sustained. Compensatory damages are intended as money compensation to the party wronged to compensate her for her injury and other damages which have been inflicted upon her as a proximate result of the willfull and wanton act of the defendant.” (emphasis added)

It also contained:

“In this particular case there have been no figures as to the actual damages. In other words, she has not come out and said T was done ‘X’ dollars worth of damage.’ But she has testified that she had some type of communication — you heard the evidence — with her mother. She has alleged embarrassment, harassment and several other things in the Bill of Complaint. And if you are reasonably satisfied from the evidence in this case, from what you have heard, that this was a consequence of the willful and wanton negligence of the Telephone Company, in that event, you may find compensatory damages.
“Now, as to how you would measure that type of damage: There is actually no rule or set formula for determining it. So you ladies and gentlemen of the jury must make a determination as to what you think would be the damages, if you are reasonably satisfied from the evidence that this willful and wanton misconduct, if there was any, caused this woman some type of damage.”

It also contained:

“Now, the other type of damage— Well, first you must decide that she is entitled to compensatory damages; that she was hurt to a certain extent by the actions of the Telephone Company. And again, you must be reasonably satisfied from the evidence that this occurred. Once you have decided that she is entitled to compensatory damages, then you may consider punitive damages, if you are reasonably satisfied from the evidence that she is entitled to them. And the purpose of awarding punitive or exemplary damages is to allow money recovery to the Plaintiff by way of punishment to the Defendant, and for the added purpose of protecting the public by deterring the Defendant and others from doing such wrong in the future. The imposition of punitive damages is entirely discretionary with the jury. Should you award punitive damages, in fixing the amount, you must take into consideration the character and degree of the wrong as shown by the evidence in the case and the necessity of preventing similar wrongs.”

Plaintiff says the jury should have been instructed that, if she proved the right to nominal damages, punitive damages could be considered. The court went further and, by its charge, authorized the jury to award compensatory and punitive damages if it saw fit. The context of the entire oral charge was that punitive damages could be awarded plaintiff if she suffered actual injury. Embarrassment and humiliation are actual injuries. Further, the jury was told, compensatory damages may be found from proof of embarrassment or humiliation. Proof of those injuries would justify awarding actual damages. Choice, by the trial court, of the phrase “compensatory damages” did not misstate the law. The phrase is synonymous with the phrase “actual damages.” Actual damages include all except that category called punitive, vindicative, or exemplary; they are the equivalent of compensatory damages. See Comer v. Age Herald Publishing Co., 151 Ala. 613, 44 So. 673 (1907). Compensatory damages, or nominal damages, may be awarded in cases where actual injury or harm is shown even though no measurable losses can be proved. Comer, supra.

Plaintiff asserts there was error when the jury was charged about simple negligence since her claim was not based upon it. She overlooks the reason given the jury for doing so.

It was this:

“Now, I have charged you as to what willful and wantonness is under the law. Now I am going to charge you as to what simple negligence is so that you will know that willfulness and wa'ntonness are of a greater degree than ordinary simple negligence.”

Contrast is a common method of explaining, or defining, that which is being contrasted. There was no error in using that method.

The remaining points plaintiff urges as error are: admitting a page of the directory listing the telephone number, 937-8739, of Lizzie Hadley; admitting evidence from the telephone company that it had no information from Mrs. Skipper, or anyone, that her money order was to be credited to the account for telephone number 937-9054 (the unlisted number); and denial of her motion to exclude evidence, which she claims, tended to show the customer had a duty to notify the telephone company to what account money sent it was to be credited. It was error, she says, because this evidence would have supported the defense of contributory negligence; an illegal defense that had been stricken. However, the trial court instructed the jury that plaintiff had no such duty.

Although that evidence might possibly have been relevant to contributory negligence, had that defense been proper, nevertheless it was surely relevant to whether plaintiff’s injuries were the result of willful or wanton misconduct on the part of defendant, and, the extent of its culpability. See McDaniel v. State, 97 Ala. 14, 12 So. 241; Louisville & Nashville R.R. Co. v. Scott, 232 Ala. 284,167 So. 572.

AFFIRMED.

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