author: BARKDULL, Chief Judge.

text:
    B. A. A., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 75-1488.
    District Court of Appeal of Florida, Third District.
    May 25, 1976.
    Rehearing Denied July 9, 1976.

      Phillip A. Hubbart, Public Defender, and Paul Morris, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and William M. Grodnick, Asst. Atty. Gen., for ap-pellee.
    Before BARKDULL, C. J., and PEARSON, J., and CHARLES CARROLL (Ret.), Associate Judge.
   BARKDULL, Chief Judge.

The following facts gave rise to this cause: Officer Brown, of the Miami Police Department, had observed the appellant-defendant on many occasions in the vicinity of N.W. 5th Street and N.W. 3rd Court and 3rd Avenue; she did not live in this area. Her conduct followed a pattern whereby, when an automobile would stop at the traffic light, the appellant would go into the street and engage in conversation with the driver or occupant; she would continue this course of conduct late into the night. On approximately forty different occasions, the officer told the defendant to move on and not to loiter in the area. On the night in question, Officer Brown observed her once again, in the same area, entering into the street to stop and talk to motorists who had stopped at the light. The officer warned the appellant to stop loitering and to get out of the street at about 7:00 P.M. The officer left the area and upon his return a short time later he observed her still in the area. While he was watching her, the defendant again entered the street to talk to a motorist who had stopped at the light. Thereupon the defendant was arrested and charged with violation of § 856.021, Fla.Stat., in that she did unlawfully loiter or prowl in a place, at a time, or in a manner not usual for law-abiding individuals under circumstances that warrant a justifiable and reasonable alarm or immediate concern for safety of persons or property in the vicinity. Following trial in the Juvenile Division of the Circuit Court, she was found to have committed the offense. A delinquency adjudication was withheld, and she was placed under the supervision of a counselor with the Florida State Division of Youth Services.

The defendant contends that there is no evidence that her conduct constituted “loitering and prowling”; there was no threat to property or person, breach of the peace, etc.; the loitering and prowling statute has been unconstitutionally applied to the defendant’s behavior.

The Florida loitering and prowling statute, § 856.021, Fla.Stat., has recently been upheld as constitutional. State v. Bcker, Fla.1975, 311 So.2d 104. The purpose of the statute, as stated by the Supreme Court of Florida, is:

“* * * to provide law enforcement with a suitable tool to prevent crime and allow a specific means to eliminate a situation which a reasonable man would believe could cause a breach of the peace or a criminal threat to persons or property.” (emphasis added)

The court construed the statute as containing two elements which must be established in order to establish a violation of the statute :

“* * * As previously noted, the statute contains two elements: (1) loitering or prowling in a place at a time and in a manner not usual for law-abiding individuals, and (2) such loitering and prowling were under circumstances that threaten the public safety. Proof of both elements is essential in order to establish a violation of the statute. This statute comes into operation only when the surrounding circumstances suggest to a reasonable man some threat and concern for the public safety. * * *”

We find that the evidence and reasonable inferences therefrom meet these tests.

The events which took place occurred at night from approximately 7:00 to 7:40 P. M. The officer testified that he had observed the defendant on previous occasions and had written approximately forty field cards on the defendant. The officer stated that he could not recall the number of vehicles the defendant approached on July 11, 1975. The record reveals that the defendant was a young mother, who spent nights on a street corner located in an area where the defendant did not live, approaching vehicles and conversing with the drivers. The record demonstrates that the first element of the offense charged, to wit: loitering or prowling in a place at a time and manner not usual for law-abiding individuals, is satisfied. It is not usual for a teenage mother to frequent a street corner at night, continually ignore warnings by a police officer, approach motor vehicles, and converse with the drivers.

The second element necessary to establish a violation is that such loitering and prowling were under circumstances that threaten the public safety or a breach of the peace. The Supreme Court of Florida has construed the words “under circumstances that warrant a justifiable and reasonable alarm or immediate concern for the safety of persons or property in the vicinity” to mean those circumstances where peace and order are threatened or whether the safety of persons or property is jeopardized. State v. Ecker, supra. § 856.021, Fla.Stat. comes into operation where either a breach of peace is threatened or the public safety is involved:

“* * * This statute only authorizes an arrest where the person loitering or prowling does so under circumstances which threaten a breach of the peace or the public safety. * * * ” (emphasis added)

In the instant case the arrest was valid because the defendant was loitering under circumstances which threatened a breach of peace or a disruption of traffic. There is no statute defining a breach of the peace in Florida and, in the absence of an ordinance defining the breach of the peace, the existence of a breach of the peace depends upon the common law. Op. Atty.Gen. 056-296, October 2, 1956. “Breach of the peace” is a generic term including all violations of the public peace, order or decorum. 11 C.J.S. Breach of the Peace § 1 (1938). A breach of the peace includes the violation of any law enacted to preserve peace and good order. Miles v. State, 30 Okl.Cr. 302, 236 P. 57, 44 A.L. R. 129 (1925). In the instant case Officer Brown had substantial reason to believe the defendant was committing a misdemeanor in his presence, to wit: soliciting or offering to commit prostitution in violation of § 796.07, Fla.Stat., particularly § 796.07(3) (a), (b), (c), Fla.Stat. No overt act, to wit: sexual intercourse, is required to complete the offense and the mere act of solicitation is a violation of § 796.07, Fla.Stat. Pauline v, Lee, Fla.App.1963, 147 So.2d 359. A breach of the peace was threatened because the defendant, as perceived by the police officer, was violating the law against prostitution which was enacted to preserve peace and good order in the community.

It should be further noted that the police officer performed his duty and complied with the statute by affording the defendant an opportunity to dispel any alarm or immediate concern. See: § 856.021(2), Fla.Stat. There is a presumption that officials properly performed their required duties. Jones v. State, Fla.App.1974, 296 So.2d 519; Purdy v. Mulkey, Fla.App.1969, 228 So.2d 132; North v. Chapman, Fla. 1954, 74 So.2d 787; Montgomery v. State, 53 Fla. 115, 42 So. 894. In the absence of evidence to the contrary, the presumption is not overcome. In the instant case, the defendant did not present any evidence that Officer Brown did not properly perform his duty. Furthermore, there is evidence that the arresting officer performed his required duty of confronting the defendant prior to arrest. The evidence is also subject to the view that the defendant’s actions were such as to be an impairment to the flow of traffic in and about this intersection.

The appellant further contends that certain evidence of forty field cards, which had been written on her in the past, was impermissibly admitted. The Williams Rule does not justify such irrelevant testimony. The appellant further contends that this evidence is inadmissible and not relevant since the facts were not crimes and do not fall under the Williams Rule, and that the acts merely displayed a propensity on the part of the defendant to speak to occupants of cars.

Under the rule of evidence commonly known in Florida as the Williams Rule, the test of admissibility of evidence is the relevancy of the evidence to some issue of the case being tried. Williams v. State, Fla.1959, 110 So.2d 654; Tafero v. State, Fla.App.1969, 223 So.2d 564; Dean v. State, Fla.1973, 277 So.2d 13. In Williams v. State, supra, the Supreme Court of Florida stated:

“* * * Our view of the proper rule simply is that relevant evidence will not be excluded merely because it relates to similar facts which point to the commission of a separate crime. * * * The test of inadmissibility is a lack of relevancy.” (emphasis supplied)

The court further noted that evidence relating to similar facts, which point to the commission of a separate crime, is admissible if found to be relevant:

“* * * evidence revealing other crimes is admissible if it casts light upon the character of the act under investigation by showing motive, intent, absence of mistake, common scheme, identity or a system or general pattern of criminality so that the evidence of the prior offenses would have a relevant or a material bearing on some essential aspect of the offense being tried. * * * ”

In the instant case, the evidence objected to, to wit: that the police officer wrote approximately forty field cards on the defendant in the past, is relevant as it tends to prove the defendant’s purpose, plan or design and the identity of the defendant. That the defendant frequented the street corner, not near her home, at night on previous occasions is relevant to show the defendant’s purpose of plan as well as her identity as being the same person at the corner on previous occasions as during the night in question.

The Williams Rule applies to similar fact evidence which tends to reveal the commission of a collateral crime. See: Williams v. State, supra. In the instant case, the similar fact evidence tended to reveal the commission of a collateral crime, to wit: solicitation of prostitution.

The evidence objected to is relevant as to the questions of identity, plan, or design of the defendant and is admissible under the Williams Rule. A trial judge has wide discretion to determine what evidence is material and relevant. United States v. Calles, 5th Cir. 1973, 482 F.2d 1155.

Therefore, we sustain the actions of the trial judge under review.

Affirmed.

CHARLES CARROLL, Associate Judge, dissents.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    John M. WILT, Appellant, v. The STATE of Florida, Appellee.
    No. 75-1719.
    District Court of Appeal of Florida, Third District.
    May 25, 1976.
    Phillip A. Hubbart, Public Defender, and Gerald Hubbart, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Ira N. Loewy, Asst. Atty. Gen., for appellee.
    Before PEARSON and HENDRY, JJ„ and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

The defendant was convicted of loitering or prowling pursuant to Fla.Stat. § 856.-021. On this appeal, it is urged that the evidence is insufficient. The requirements for a conviction under this statute have been fully discussed in State v. Ecker, Fla. 1975, 311 So.2d 104. Tested against the guidelines set out in that opinion, we hold the evidence was fully sufficient in all particulars. See also B.A.A. v. State, Fla.App. 1976, 333 So.2d 553.

Affirmed.


author: MERRILL, Justice.

text:
    Eugene P. GIGANDET et al. v. THIRD NATIONAL BANK OF NASHVILLE, TENNESSEE.
    SC 1463.
    Supreme Court of Alabama.
    June 4, 1976.
   MERRILL, Justice.

The original opinion in this case, announced April 16, 1976, is withdrawn, this opinion substituted therefor, and the application for rehearing is overruled.

This appeal is from a judgment for plaintiff in an action of detinue for a 24' x 65' mobile home, and a judgment against defendants on their counterclaim.

Defendants purchased the mobile home from Treasure Island Mobile Homes (dealer). This dealer was floor planned through plaintiff, Third National Bank of Nashville, Tennessee. Defendants executed a retail installment contract to plaintiff to' effect a purchase money interest in the mobile home. That security interest was perfected by filing a UCC-1. The contract was entered into on September 5, 1973, and was payable in monthly installments of $163.58. Defendants ceased paying the installments on December 20, 1973. The mobile home was vacated in March, 1974. Plaintiff’s brief says it was “abandoned”; defendants’ brief says they “moved out.” The unpaid balance was $23,064.78.

On February 14, 1974, counsel for the Gigandets wrote the manufacturer, Tidwell Industries, at Haleyville, that “Mr. and Mrs. Gigandet have decided to demand a refund of all monies paid out by them from your Company and to return the home unit to you.” A copy of this letter was sent to the plaintiff bank and to Treasure Island Mobile Homes.

This suit in detinue was filed on July 26, 1974, the answer and counterclaim was filed August 29, 1974, and the trial was held on May 12, 1975.

The evidence supported the judgment in favor of the plaintiff for possession of the mobile home. Our concern is with the counterclaim for a return of the consideration paid by the Gigandets.

Gigandet testified that he looked the trailer over “good” before he bought it and that the defects were present when he looked it over, but that he “was assured that they would be taken care of.” He said other defects were not noticeable until after he moved into the trailer. He said the pictures his attorney took “shows the bottom of the trailer being unlevel and not bolted together properly.” He further testified that after he moved out and revoked his acceptance of it, the trailer was still sitting there but his daughter was “watching the trailer” but some people did enter the trailer without his permission and “broke into the doors.”

Mrs. Gigandet testified that the down payment of $1,840.00 was their equity in a Trojan Trailer or mobile home which was traded in on the trailer here involved and that they made three payments of $163.58; that the dealer and the manufacturer came out but when they “tried to relevel the trailer they pulled it apart more than what it was pulled apart at the beginning.” She also testified that the trailer was placed on bricks which were the foundation for the trailer when placed between the ground and the bottom of the trailer. The bricks or cement blocks were furnished with the trailer and it was set up by the dealer, Treasure Island.

Joe Poore, a witness called by plaintiff in rebuttal, testified that his occupation was mobile home repair, and that plaintiff sent him to give an estimate on what it would take to fix Gigandet’s home. Gigandet told him what was wrong but “He said he didn’t want it fixed by us. He said he wanted it fixed by the manufacturer.”

The trial court, after hearing the evidence, found “the issues in favor of the plaintiff and against the defendants,” which, of course, include the counterclaim.

In appellants’ original brief, the only mention of any monetary claim by defendants on their counterclaim was on the last two pages of the brief where it was stated that appellants were entitled to “the amount of $2,330.74, plus expenses, interest, and costs.” Nowhere in that brief was there a breakdown of the components of this amount. In brief, on rehearing, appellants state that three payments of $163.58 totals $490.74, plus $1,840.00 (the trade-in allowance) for a grand total of $2,330.74.

Appellants contend that they are entitled to recover what they paid on the contract under Tit. 7A, § 2-711, which provides in pertinent part:

“(1) Where * * * the buyer rightfully rejects or justifiably revokes acceptance then with respect to any goods involved, and with respect to the whole if the breach goes to the whole contract (section 2-612), the buyer may cancel and whether or not he has done so may in addition to recovering so much of the price as has been paid”

The buyer (Gigandet) did not reject, so we come to whether they justifiably revoked acceptance to such an extent as to amount to a cancellation by the buyer. In Anderson, Uniform Commercial Code, 2d Ed., Sales, § 2-711:26, p. 423, we read:

“The buyer is barred from cancelling the contract when he makes such a use of the goods as is inconsistent with a cancellation. Thus, a buyer cannot take the inconsistent positions of (1) claiming that he has revoked acceptance of an automobile and holds a security interest therein, and (2) making actual use and exercise of rights of ownership over the automobile. * * * ”

Here, the bank was notified that the Gig-andets had “decided to demand a refund of all monies paid out by them. * * * ” Assuming that this was requisite notice, the Gigandets made actual use and exercised rights of ownership of the trailer at least three months after they had quit paying and after they had given the meager notice. They claimed that they were looking after it after they had vacated it. They forced the bank to file a suit in detinue for the trailer and in their answer filed on August 29, 1974, denied that they were wrongfully detaining the trailer, but were exercising their rights under Tit. 7A, § 2-608, which provides for revocation of acceptance. But they argue in brief that the contract was cancelled under § 2-711. These claims are inconsistent. As stated in Anderson, UCC, Sales, § 2-608:26, p. 250, “Where the buyer makes continued use of an automobile, such conduct contradicts the buyer’s claim that acceptance has been revoked.” (Citing Bassman v. Manhattan Dodge Sales (NY), 5 UCCRS 128.)

There is a real question as to proper notice. Under the UCC, the question of what is a reasonable time for giving notice is a question for the jury, or the trier of fact. Anderson, UCC, 2d Ed., Sales, § 2-607:44, p. 228. Here, the cause was tried before the court without a jury and the trier of fact could have, from the evidence, found that notice was not timely.

Again, in reference to § 2-608, we find the following in Anderson, UCC, Sales, § 2-608:11, p. 243:

“Because of the requirement of substantial impairment, there can be no revocation of an acceptance merely upon proving that there were defects, without showing that they ‘substantially impair the value’ of the contract.”

Here, there is no evidence of any amount of impairment of value or damage due to the defects. It is conceded that the trailer was purchased with knowledge of some of the defects.

A seller has a reasonable time to attempt to correct defects in the goods, Anderson, UCC, Sales, § 2-608:28. Here, after the bank came into the picture, it sent Poore to attempt to cure the defects but Gigandet would not permit Poore to do the job or even make an estimate of what it would cost the bank for him to do it. But the Gigandets refused to let him inspect or repair the trailer.

The trial court could have concluded from the evidence that under Tit. 7 A, § 2-711, the buyer did not rightfully “reject” or “justifiably revoke acceptance” of the mobile home.

There was ample evidence and law to sustain the finding of the trial court that the appellants were not entitled to recover under their counterclaim.

The usual presumption is applicable that where the trial court sees and hears the witnesses testify, its findings shall determine questions of fact and these findings will not be disturbed on appeal unless plainly wrong or manifestly unjust. Cotton v. May, 293 Ala. 212, 301 So.2d 168; Jones v. Wise, 282 Ala. 707, 213 So. 2d 914.

The bank argued in brief that the two assignments of error listed by the appellants were not before the court because one was not argued in brief and the other had been held not a valid assignment of error. This would have been effective argument under the old appellate rules. ARAP became effective December 1, 1975. The transcript was not filed in this court until January 5, 1976. Under ARAP 49(3), the new appellate rules governed. ARAP 20 provides that “Assignments of.error are not required.” Perhaps out of an abundance of caution, defendants assigned errors, but they also stated the issues in their brief. The issue considered is whether the trial court erred in finding against the defendants on their counterclaim. Our holding is that the trial court did not err.

AFFIRMED.

Application for rehearing overruled.

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


author: SHORES, Justice.

text:
    Don WATTS and Betty Watts v. M. M. VICTORY et al.
    SC 1606.
    Supreme Court of Alabama.
    June 4, 1976.

      Robert S. Vance, Birmingham, for appellants.
    Donald L. Newsom and Samuel Maples, Birmingham, for appellees.
   SHORES, Justice.

This is an appeal from a preliminary injunction entered by the Jefferson County Circuit Court following a suit brought by the appellees, M. ,M. Victory, Ernest C. Wimberly and Liberty Communications, Inc., a corporation (hereinafter referred to as plaintiffs), seeking both preliminary and permanent injunctions to restrain the appellants (hereinafter referred to as Watts) from enforcing a prior judgment which Don Watts had obtained in the Jefferson County Circuit Court in a separate proceeding.

The application for preliminary injunction was submitted solely on the plaintiffs’ verified complaint and argument of counsel, so that the only facts before us are those alleged in the plaintiffs’ complaint. The essential averments of that complaint are:

Prior to 1970, the Watts, along with others, including the plaintiffs, were stockholders in a corporation known as Telvue Cable of Alabama, Inc. Plaintiff Victory was president of that corporation. During 1970, Telvue negotiated with Liberty Communications, Inc. (one of the plaintiffs) for the acquisition of Telvue by Liberty. A plan was proposed which required approval by 80% of Telvue’s stockholders.

In order to induce Watts to agree to the proposed reorganization and acquisition by Liberty, plaintiffs Victory and Wimberly issued to Don Watts a written guaranty agreement on May 24, 1970, which is as follows:

“Dear Mr. Watts:
“In reference to the stock which you own in Telvue Cable Alabama, Incorporated, this is to advise that the undersigned guarantee you a minimum of $3.00 per share for your stock in Telvue Cable Alabama, Incorporated payable on or before 90 days from date. In the event the stock at the end of 90 days can be sold for more than that sum, this does not preclude you from receiving the additional amount.
[Signed]
“M. H. Victory
“Ernest C. Wimberly”

Don Watts agreed and the acquisition and reorganization took place.

On June 30, 1971, Don Watts filed suit against Victory and Wimberly alleging damages for breach of the above contract. The case was discontinued against Wimberly when service could not be perfected on him. Thereafter, a jury rendered a verdict in Watts’ favor in the amount of $18,000. Judgment was entered on the verdict and it has not been paid.

On February 21, 1975, Watts had a garnishment issued againt Liberty as Victory’s employer. Liberty failed to answer the garnishment; and, on August 4, 1975, a final judgment was taken by Watts against Liberty in the amount of $19,647.45.

Contemporaneously with the filing of the complaint, the plaintiffs deposited this amount with the court. The complaint alleges that Victory and Wimberly had offered to pay Watts $18,000 if he would endorse his Liberty stock over to them. They allege that to allow Watts to collect the prior judgment would constitute unjust enrichment.

The complaint sought to have Watts required either to accept Liberty stock and satisfy the judgment or to accept the money and surrender the stock.

After the acquisition and reorganization, Liberty stock was issued in lieu of Telvue stock. Watts did not accept the Liberty stock and retains the Telvue certificates.

On the basis of these allegations, the court granted the plaintiffs’ request for preliminary injunction and Watts appealed.

The specific averment of the complaint and the essence of plaintiffs’ argument here is that to allow Watts to retain the stock and recover the judgment “ . . . would constitute an unjust enrichment and shock the conscience of this Honorable Court.”

Watts argue that two prerequisites must be met before it is proper for a court to issue a temporary injunction: (1) it must satisfy itself that the plaintiff has a fair question to raise as to the existence to a right to relief; and, (2) the court must determine that, on a balance of convenience, interim interference is justified. Watts say that the first of these is controlled by the principles of res judicata. They insist that the matters which Victory seeks to raise in this case were raised or could have been raised in the case brought by Watts claiming damages for breach of contract. Additionally, they maintain that a party to a judgment cannot resort to equity to avoid a judgment at law, unless they can show that the judgment was the result of accident, surprise or fraud of the opposite party unmixed with negligence on the part of the complainant.

As to the second requirement, Watts say no irreparable injury was alleged and insist that the proper course for the appel-lees was to appeal the prior judgment.

We recognize, of course, that the granting or refusal to grant a preliminary injunction rests largely in the discretion of the trial court and that the court’s latitude in this area is considerable. Valley Heating, Cooling & Electric Co. v. Alabama Gas Corporation, 286 Ala. 79, 237 So.2d 470 (1970); Drake Associates, Inc. v. Letson, 277 Ala. 512, 172 So.2d 536 (1965). We have defined an abuse of this discretion as “ . . . exceeding the bounds of reason, all the circumstances before the lower court being considered.” Valley Heating, supra, 286 Ala. at 82, 237 So.2d at 472. Moreover, we have said that, to establish an abuse, it is essential to show that the trial court committed a clear or palpable error, without the correction of which manifest injustice will be done. Ex parte Jones, 246 Ala. 43, 20 So.2d 859 (1945). Of course, discretion can be abused; and Watts contend that the issuance of a preliminary injunction based solely on the allegations of the complaint constitutes an abuse in the instant case.

Both sides agree that the granting of a temporary injunction is proper when the court has satisfied itself . not that the plaintiff has certainly a right, but that he has a fair question to raise as to the existence of such a right, [and] . . whether interim interference, on a balance of convenience or inconvenience to the one party and to the other, is or is not expedient.’ . . .” Coxe v. Huntsville Gas Light Co., 129 Ala. 496, 501, 29 So. 867, 869 (1901).

“ . . . The right to a temporary injunction is often said to be measured by the existence of irreparable damage to petitioners, resulting from the proposed illegal and wrongful conduct of respondents. . . .” State v. Mobile & O. R. Co., 228 Ala. 533, 536, 154 So. 91, 94 (1934).

Injunctions, however, will not be granted “. . . merely to allay apprehension of injury; the injury must be both imminent and irreparable in a court of law. . . . ” Cullman Property Co. v. H. H. Hitt Lumber Co., 201 Ala. 150, 153, 77 So. 574, 577 (1917). As noted by Watts, in brief, no claim was made by the plaintiffs in their complaint (which is all we have before us) that they would suffer any irreparable injury if the preliminary relief was not granted; nor was there any showing as required by our law that such would result. Failure to meet this requirement should have been fatal to the issuance of the preliminary injunction.

With no more than the complaint before it, and the absence of any allegation of irreparable injury to it, we agree that the trial court abused its discretion in granting the preliminary injunction restraining the collection of a prior money judgment. “. . . ‘abuse of discretion’ ... is really a discretion exercised to an end or purpose not justified by, and clearly against, reason and evidence . . .” Clayton v. State, 31 Ala.App. 106, 110, 13 So.2d 411, 415 (1942).

We believe that the sanctity of a prior judgment, regular on its face, the validity of which is not questioned, should not be diminished by an injunction without any allegation or evidence showing the necessity for doing so.

We, of course, do not have the merits of this case before us. The only issue presented on this appeal is the propriety of tihe issuance of the preliminary injunction on the allegations of the complaint, and that is all that we decide. The evidence may show that the plaintiffs are entitled to some .relief. We merely hold that enjoining Watts from any further attempts to collect their judgment (which Victory did not appeal from) was prematurely granted.

REVERSED AND REMANDED.

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


author: HEFLIN, Chief Justice.

text:
    Marlene Sheehan Zorn HANNA v. Frank W. RIGGS, Administrator of the Estate of Harry O. Hanna, deceased.
    SC 1253.
    Supreme Court of Alabama.
    June 4, 1976.

      S. G. Culpepper, Jr., Montgomery, for appellant.
    Frank W. Riggs, Montgomery, for ap-pellee.
   HEFLIN, Chief Justice.

This case is an appeal from a judgment for plaintiff-appellee in a wrongful death action brought by the administrator of the estate of Harry Hanna, against Hanna’s wife, Marlene Hanna, who shot and killed Hanna with a pistol. This court affirms.

Prior to the filing of this action these same parties were involved in a declaratory judgment action filed by Riggs, as administrator of Hanna’s estate, in behalf of Hanna’s children by a prior marriage, to determine who would recover the proceeds of insurance policies on Hanna’s life. Two policies were uncontested by the insurance companies, which interpleaded the proceeds, while a third, an accidental death policy, was contested on the basis that Hanna’s death was not accidental. The pretrial order in that action set out the positions of each party in the case: “(a) Complainants contend that Marlene Shee-han Hanna willfully, and intentionally or feloniously killed Harry Hanna and that she is therefore not entitled to receive the proceeds of the aforesaid insurance policies on his life, although she is the primary beneficiary of each policy, (b) The Respondent Marlene Sheehan Zorn Hanna contends that Harry Hanna was killed in self-defense and that she is entitled to receive the proceeds from the policies.” The order then set out the position of the insurance company regarding the contested policy.

An unwritten settlement was eventually entered by the parties in the declaratory judgment action, resolving all but the conflict concerning whether the death was accidental under the accidental death policy. After trial on that issue, the trial court determined that the death was accidental and that Frank Riggs, as administrator, would receive the proceeds as alternate beneficiary. The judgment recited, “[A] 11 other issues [have] previously been disposed of by settlement agreement between the parties.” Marlene Hanna did not appeal the court’s determination, although the insurance company did. The trial court was affirmed in Provident Life & Accident Ins. Co. v. Hanna, 294 Ala. 37, 311 So.2d 294 (1975).

I.

Subsequent to final settlement of the declaratory judgment litigation, Riggs again brought suit against Marlene Hanna under the Alabama Wrongful Death statute, alleging in two counts that she negligently and/or wantonly caused Hanna’s death by shooting him with a pistol. Defendant moved for summary judgment on the ground that the issues in the wrongful death action were the same as those decided in the declaratory judgment action and were concluded between the parties in that action by settlement and by trial. In support of the motion, defendant submitted copies of the pretrial order and the final decree in the declaratory judgment action and also filed an affidavit executed by her attorneys. Summary judgment was denied.

Prior to the commencement of the trial, defendant again raised her affirmative defenses of res judicata and accord and satisfaction. After observing that the facts surrounding the prior settlement were in controversy, the trial judge failed to rule on the affirmative defenses as a matter of law and allowed the case to go to trial.

At the conclusion of the trial, defendant raised these defenses again as grounds for a new trial. This motion was denied by the trial court.

Appellee points out that no evidence was presented to the jury on the question of whether the prior settlement was a bar to the present action and that the defendant below did not request that the jury be instructed on this issue. Appellee alleges that the failure to present this defense to the jury leaves nothing for this court to review. Appellant, on the other hand, argues that as a matter of law the issues were the same and thus were not required to go to the jury.

The declaratory judgment action was brought on the theory that Marlene Hanna could not recover as prime beneficiary because she had intentionally killed Hanna. The rule of law under which such a claim can be brought requires that the beneficiary’s action in killing the insured be felonious. Protective Life Ins. Co. v. Linson, 245 Ala. 493, 17 So.2d 761 (1944); American Life Ins. Co. v. Anderson, 246 Ala. 588, 21 So.2d 791 (1945). As noted by the trial court in its pretrial order in the declaratory judgment action, the plaintiffs’ position was that Marlene Hanna “willfully, and intentionally or feloniously” killed Hanna. The gravamen in a wrongful death action is the “wrongful act, omission, or negligence” of anyone causing another’s death. Title 7, § 123, Code of Ala. 1940 (Recompiled 1958). The wrongful act does not have to be felonious. Thus the legal issues in these two types of actions are not necessarily the same. No evidence was presented to the trial court to show that the parties understood otherwise and, therefore, the settlement can have no res judicata effect as a matter of law. Ivey v. Wiggins, 271 Ala. 610, 612-13, 126 So.2d 469, 471 (1961); Quinnelly v. City of Prichard, 292 Ala. 178, 182, 291 So.2d 295, 298 (1974).

Further, where a former judgment is set up as a bar and there is a factual dispute as to whether there is such an identity of parties, subject matter or cause of action as will support the plea, this question of fact is one for the jury. See Missouri Pac. R. Co. v. Burks, 196 Ark. 1104, 121 S.W.2d 65 (1938); Dolby v. Whaley, 39 Del. 155, 197 A. 161 (1938); Poehl v. Cincinnati Traction Co., 20 Ohio App. 148, 151 N.E. 806 (1925); 50 C.J.S. Judgments § 846 (1947).

This court agrees with the trial court that the facts surrounding the prior settlement were “somewhat in controversy.” The final decree in the prior action noted that “all other issues [have] previously been disposed of by settlement agreement between the parties.” It does not identify what those “other issues” were. Appellee contends that only the issues between the parties in that lawsuit were settled, while appellant contends that all issues between the parties were settled. Clearly from the record of the arguments presented to the trial judge by the parties concerning this affirmative defense, the parties were in disagreement as to what issues were in fact settled between them. Because of this disagreement and the fact that the settlement was not reduced to writing, this factual question should have been presented to the jury. Where no proof is offered to the jury to establish an allegation, there is nothing for this court to review on appeal. See Castleberry v. Hollingsworth, 215 Ala. 445, 111 So. 35 (1927).

Next, appellant argues that any question of negligence was decided as a matter of law in the litigation over the contested insurance policy. Provident Life & Accident Ins. Co. v. Hanna, 294 Ala. 37, 311 So.2d 294 (1975). The basis of the argument is the following quotation from Provident:

‘To constitute an accidental death, it must have resulted from something unforeseen, unexpected, and unusual. Carroll v. Fidelity, etc., Co., supra [4 Cir., 137 F. 1012], or “which happens as by chance, or which does not take place according to the usual course of things,” or “without foresight or expectation” or “by reason of some violence, casualty,

294 Ala. at 40, 311 So.2d at 295. By defining an accident as an unforeseen event and the finding that Hanna’s death was accidental, appellant contends that the Provident case resolved the issue of negligence in her favor. Appellant’s conclusion is based upon the reasoning that negligence presupposes a breach of duty that will fore-seeably cause in jury and thus without foreseeability there can be no negligence. It is not necessary to reach this issue because the foreseeability argument is misplaced in this instance.

The insurance company in the Provident Life & Accident Ins. Co. case contested the policy on the ground that Hanna was an aggressor who voluntarily put his life in jeopardy by attacking his wife. Based on prior cases, Provident argued, such deliberate actions on his part prevented his death from being an accident. The court found that the determination of events must be “made from the standpoint of the insured” and concluded that Hanna probably could not have foreseen that his actions would result in his death. Thus the foreseeability question in Provident was decided from Harry Hanna’s perspective. In a negligence action, such as the one before this court, the foreseeability outlook is that of the person charged with the negligence, i. e., Marlene Hanna. Thus, the litigation in the insurance case did not settle the issue of Marlene Hanna’s liability under the Wrongful Death Statute.

II.

After the case was brought to trial, and during the questioning of the jury ve-nire, the trial judge asked the venire if any of them had been acquainted with Harry Hanna during his life or were familiar with any of the facts surrounding his death. Earl A. O’Neal, a juror whose conduct is being challenged on his appeal, failed to respond to either question. Defendant’s attorney subsequently received information suggesting that this juror, who was later chosen to act as foreman of the jury, did in fact have independent knowledge of the parties and the facts.

The trial judge, after being informed of the attorney’s suspicions, brought Mr. O’Neal into his chambers and questioned him. O’Neal stated that, to the best of his knowledge, he had not known the deceased during his lifetime although he was aware that deceased frequented the Gunter AFB Officer’s Club which he, O’Neal, also often visited. O’Neal did acknowledge that he had read of the killing in the newspaper soon after it occurred but beyond that had no personal knowledge of the facts involved in the case.

Defendant, Marlene Hanna, testified that Harry Hanna had introduced her to O’Neal’s wife and had said that O’Neal and his wife were good friends of his.

It is not clear whether defendant requested a ruling of any sort or whether any formal motion for mistrial was made. The trial judge merely stated that under the circumstances as then revealed the trial would proceed and the question of the propriety of O’Neal serving as a juror would be held in abeyance.

After the verdict was returned, defendant moved for a new trial based on O’Neal’s failure to properly answer the ve-nire questions. A hearing was held on the motion during which juror O’Neal testified. He again stated that he had read of the killing at the time it took place — approximately two years prior to the trial of the wrongful death case — but that he had no personal knowledge beyond that. Defendant’s attorney questioned him about the jury’s deliberations. O’Neal disclosed that he and two other jurors had revealed the fact that there was one hundred thousand dollars of insurance involved in the case. O’Neal stated that he thought he had learned of this fact during the trial and, that if it was not revealed in the courtroom (which, defendant asserts, it was not), then he did not know where he learned it. Subsequently Marlene Hanna took the stand and stated that newspaper stories covering the insurance litigation had erroneously revealed that one hundred thousand dollars worth of insurance was involved.

Defendant also brought up the fact that O’Neal had been seen sitting by and conversing with Peggy Hanna, Harry Hanna’s first wife, prior to the trial. O’Neal stated that he inadvertently sat by her and that they did not talk about the case other than in a very general manner. He further stated that he did not know her identity at the time he sat beside her.

Two recent cases discuss the effect of a juror’s failure to answer voir dire questions. The case of Miller v. Samples, 291 Ala. 533, 535, 283 So.2d 424, 425 (1973) cites Freeman v. Hall, 286 Ala. 161, 238 So.2d 330 (1970) (on remand) as the controlling case on this question. The Miller opinion notes the following discussion in Freeman:

“The court in Freeman reiterated the general rules that ‘parties have a right to truthful answers to questions propounded on voir dire,’ (Sanders v. Scarvey, 284 Ala. 215, 224 So.2d 247, which followed Leach v. State, 31 Ala.App. 390, 18 So. 2d 285, cert. den. 245 Ala. 539, 18 So.2d 289) and ‘[t]he failure of prospective jurors to respond to questions properly propounded on voir dire entitles the movant to a new trial.’ Then this court went on to state that such general rule cannot be applied without regard to the factual background of a particular situation. The court held ‘that the proper inquiry for the trial court on motion for new trial, grounded on allegedly improper responses or lack of responses by prospective jurors on voir dire, is whether this has resulted in prohable prejudice to the movant ’ (emphasis added) Moreover, the court emphasized that the grant or denial of the motion was within the discretion of the trial court and that this court ‘will review the trial court’s ruling * * * only for abuse of discretion in its determination as to probable prejudice.’
“The court in Freeman promulgated the following guidelines to aid trial courts in their effort to determine probable prejudice.
“ ‘Although the factors upon which the trial court’s determination of prejudice is made must necessarily vary from case to case, some of the factors which other courts have considered pertinent are: temporal remoteness of the matter inquired about, the ambiguity of the question propounded, the prospective juror’s inadvertence or willfulness in falsifying or failing to answer, the failure of the juror to recollect, and the materiality of the matter inquired about.’ ”

The trial court heard and observed the witnesses. Because of the varying interpretations which can be given to the testimony in applying the standards set out in Freeman this court cannot say that the trial judge abused his discretion on this issue.

The case is due to be affirmed.

AFFIRMED.

MERRILL, MADDOX, JONES and SHORES, JJ., concur.


author: BLOODWORTH, Justice.

text:
    Thomas R. McENIRY, as Executor of the Estate of Margaret Colley, Deceased v. R. A. COATS.
    SC 1570.
    Supreme Court of Alabama.
    May 28, 1976.
    Rehearing Denied June 25, 1976.

      W. J. Sullivan, Jr., and C. John Hol-ditch, Birmingham, for appellant.
    Paden, Green & Paden, Bessemer, for appellee.
   BLOODWORTH, Justice.

The issue presented by this appeal concerns the ownership of certain funds deposited in a savings account at First Federal Savings & Loan Association of Bessemer in the names of Margaret Colley and R. A. Coats, as joint tenants with right of survivorship.

Coats claimed title to the funds following the death of Mrs. Colley by virtue of the survivorship provision of the account. McEniry claimed title as executor of Mrs. Colley’s estate contending that Mrs. Colley, a 92-year-old widow, was senile at the time the account was established with her funds, and that a confidential relationship between the parties existed and that the gift from Mrs. Colley to Coats was a result of undue influence.

Coats filed a bill for declaratory judgment in his capacity as administrator ad colligendum. Subsequently, McEniry, as executor, was substituted as a defendant. He then filed a cross bill alleging the gift was the result of the senility of Mrs. Col-ley or the undue influence exercised by Coats, Executive Vice President of First Federal, over Mrs. Colley.

After a hearing ore tenus, the trial court ruled in favor of Coats and against Mc-Eniry, finding there was no undue influence exercised by Coats and that a valid gift was made by Mrs. Colley to Coats, pursuant to Tit. 5, § 255(4), Recompiled Code 1958 [unofficial].

Appellant McEniry’s contentions for reversal are twofold, albeit related. First, he contends that the trial court erred in deciding that Mrs. Colley made a bona fide gift inter vivos to Coats because the evidence was undisputed that a confidential relationship existed between them and no evidence was introduced to rebut the legal presumption that the gift was the result of undue influence. Second, he contends that the trial court erred in holding Coats to be the owner of the account by virtue of the provisions of Tit. 5, § 255(4) because that provision was never intended to repeal de-cisional law with respect to undue unfluence arising from confidential relationships.

Coats contends, by virtue of Tit. 5, § 255(4), that the survivor of a joint account is relieved of the burden of establishing a gift inter vivos so that the survivor is entitled to the account proceeds. Moreover, Coats maintains that the trial judge’s judgment should not be disturbed unless it is plainly and palpably contrary to the weight of the evidence.

We will proceed to deal with these contentions.

Tit. 5, § 255(4), as found in the unofficial 1958 Recompiled Code, states:

“§ 255(4). Deposit in names of two persons, payable to either, or payable to survivor; title to deposit upon death of either. — When a deposit has been made, or shall hereafter be made, in any savings and loan association in this state in the names of two persons, payable to either of such persons, or payable to the survivor of them, the said deposit shall, upon the death of either of said persons, become the property of and be paid in accordance with its terms to the survivor, irrespective of whether or not the funds deposited where the property of only one of said persons, and irrespective of whether or not at the time of the making of such deposit there was any intention on the part of the persons making such deposit to vest the other with a present interest therein, and irrespective of whether or not only one of said persons, during their joint lives, had the right to withdraw such deposit, and irrespective of whether or not there was any delivery of any account book or savings account book by the person making such deposit to the other of such persons. This section will also apply where a deposit is made in the names of more than two persons where there is a provision for survivorship. Nothing in this section shall be construed to prohibit the person making such deposits from withdrawing or collecting the same during his lifetime, nor shall the fact that such person had the right to withdraw or collect said deposit during his lifetime operate to defeat the rights herein provided for the person, or persons, surviving such depositor. (1967, p. 575, § 3, appvd. Aug. 14, 1967.)”

Very recently in Street v. Hilburn, Ala., 326 So.2d 724 [1976] (per Almon, J.), we had an opportunity to pass on the meaning of this statute. We held that the statute “is clear in its meaning and intent that the survivor of a joint bank account is entitled to the proceeds.” We rejected the contention that it must be shown that the donor intended to make a gift inter vivos. We quoted with approval from the New Hampshire case of In re Wszolek Estate, 112 N. H. 310, 295 A.2d 444 (1972) which held, with respect to a statute very similar to ours, that the statute simply “has relieved the surviving joint tenant of the burden of establishing a gift inter vivos.”

However, Street had nothing to say with respect to, nor did it deal with, the question raised in the case at bar that the gift of the account was the result of undue influence. This question was not raised in Street nor has it been heretofore raised in our Court with respect to the provisions of Tit. 5, § 255(4).

Thus, there is nothing in Street which affects our pre-existing case law to the effect that:

“The law presumes the exercise of undue influence in transactions inter vivos where confidential relations exist between the parties, and puts upon the do-nee or grantee, when shown to be the dominant party in the relation, the burden of repelling the presumption by competent and satisfactory evidence. [Citations omitted.]”
“But for such a presumption to be raised the evidence must show clearly and satisfactorily: (1) That a confidential relation existed between the grantor and grantee; (2) that the grantee was the dominant spirit. Wooddy v. Matthews, 194 Ala. 390, 69 So. 607.”

Webb v. Webb, 250 Ala. 194, 203-4, 33 So. 2d 909, 915-16 (1948).

Mrs. Margaret Colley, a 92-year-old widow, had no surviving blood relatives. She had poor eyesight. It was extremely difficult for her to write. She relied on employees in her lawyer Tom McEniry’s office to help her make out checks and pay bills. She had made a will dividing her estate between three charities, St. Thomas Home-on-the-Hill, St. Aloysius Catholic Church and Alabama Sight Conservation Association. Her banker, Walter Berry cashed her dividend and social security checks and delivered money to her at her home. After he was killed in an accident, she asked Coats, Executive Vice President of First Federal Savings & Loan Association of Bessemer, where she had a savings account, to help her as Mr. Berry had. He agreed. He did. Although the savings and loan association employees ran errands for her and they sometimes drove her to her home from town, she was, more or less, self-sufficient, living alone at her home until the late 60’s. In July, 1968, when she became ill, she asked a Mrs. Jessie Colley Evans, relative of her deceased husband, to help her. She put Mrs. Colley in a nursing home and put her name on Mrs. Colley’s checking account in order to pay the latter’s bills. She accompanied Mrs. Colley to First Federal, with several of Mrs. Colley’s savings and loan passbooks, at the suggestion of a banker. Mrs. Evans, at Mrs. Colley’s request, turned over the passbooks to Mr. Coats to have interest credited to her accounts. This was the last time Mrs. Colley had physical possession of the passbooks. There were three accounts with: City Federal Savings & Loan Association; First Federal Savings & Loan of Alabama; and First Federal of Bessemer. They totaled some $31,500. In the spring of 1969, Mrs. Col-ley was released from the nursing home. She had been unhappy there and wanted to return home. Mr. Coats then began seeing her on a regular basis. On May 7, 1969, Mrs. Colley sat with Coats at his desk and signed signature cards transferring her individual account at Coats’ institution to a joint survivorship account with Coats. The account then stood at $11,544.72. Coats went to the other two institutions, obtained signature cards changing those accounts to joint survivorship, took them to Mrs. Colley’s home where she signed them in his presence. He returned them to the other two savings and loan associations. Coats retained physical possession of the passbooks. Without consulting Mrs. Colley, on September 23, 1969, Coats closed the two Birmingham accounts and deposited the proceeds in the account at his savings and loan. The balance of the account was then $31,654.78. From that time on, Coats deposited dividend checks to his personal checking account, and pledged the joint account as security for a personal loan. On January 24, 1970, Mrs. Colley was admitted to a nursing home where she died May 23, 1970. Four days later, Coats withdrew the balance of the account. It stood at $29,342.51.

The relationship of principal and agent is one of a confidential relationship. Waddell v. Lanier, 62 Ala. 347 (1878); Webb v. Webb, supra. The evidence is clear and convincing that when the accounts belonging to Mrs. Colley were placed in a joint account with Mr. Coats that the relationship of principal and agent inured, and, as such, that the latter looked after the former’s business and personal affairs.

It is, moreover, clear that Mr. Coats was the dominant spirit in the transactions. He was Vice President of First Federal, where he had been an officer and board member for nearly forty years. He hardly knew Mrs. Colley until she asked him to help her after the death of her banker, Mr. Berry, in an automobile accident in the early 60’s. Mrs. Colley was a 92-year-old widow, easily influenced, and suffering the vicissitudes of old age, albeit in quite remarkable physical condition for one who had reached such an advanced age. She relied almost entirely on Mr. Coats’ advice and suggestions.

It is thus that we say Coats has failed to carry the legal burden placed upon him by our law to repelí the presumption of undue influence. It was held in Webb, supra:

“In transactions inter vivos, it is not always necessary to show independent advice when confidential relations exist and the grantee or donee is the dominant spirit, though the burden is on the grantee or donee to do so or to show by other evidence which satisfies the judicial conscience that the deed was the voluntary and well-understood act of the grantor’s mind, and was fair and just. Scott v. Hardyman, 218 Ala. 515, 119 So. 224.
Other courts have reached like results.

In a quite similar case, In re Estate of Dzierski, 449 Pa. 285, 296 A.2d 716 (1972) the Supreme Court of Pennsylvania affirmed a lower court which had found that undue influence had been practiced on the deceased by his daughter. For that reason, it held invalid her claim as the sole survivor to a joint bank account. The Supreme Court held:

“ . . . Neither of these two general principles (i. e., the prima facie creation of a gift and the burden of proof placed on the presumed donor, or his representative, to show no gift) applies, however, ‘where the relation of the parties to each other, or some vicious element in connection with the transaction, is such that the law compels the recipient of the bequest or gift to show that it was the free, voluntary and intelligent act of the person giving it.’ [Citation omitted.] The presence of a confidential relationship sufficient to shift the burden of proof to the alleged donee does not turn on the existence of any specific association of parties.”
“ . . . We do not hesitate in con-eluding that on these facts the relationship and circumstances of the parties was such as to require Mrs. Maleski [the daughter] to carry the burden of proof, a burden she chose not to meet.”

In Ward v. Marine Nat’l Bank, 38 N.J. 132, 183 A.2d 60 (1962) a summary judgment in favor of the survivor for the proceeds of a joint account was reversed for the trial of the allegations of fraud and mistake in opening the accounts. We note with approval the following observation of the Supreme Court of New Jersey in the opinion:

"... Defenses of fraud, duress, undue influence or mistake are available against any property disposition by gift or will and nothing in this statute requires a limitation on their availability in the instant case. ...”

See also 10 Am.Jr.2d Banks, § 370, p. 333, § 372, pp. 335-336.

It is thus that we hold, in the instant case, that the confidential relationship having been shown to exist, donee Coats has failed to carry his burden of repelling the presumption of undue influence, by competent and satisfactory evidence.

REVERSED AND REMANDED.

HEFLIN, C. J., and FAULKNER, AL-MON and EMBRY, JJ., concur.


author: HOLMES, Judge.

text:
    Colonel Eldred C. DOTHARD, in his capacity as Director of Public Safety, State of Alabama v. Handley Woodworth COOK, Jr.
    Civ. 581.
    Court of Civil Appeals of Alabama.
    Oct. 29, 1975.
    Rehearing Denied Nov. 19, 1975.

      William J. Baxley, Atty. Gen., and Joseph G. L. Marston, III, Asst. Atty. Gen., for appellant.
    John S. Tucker, Jr., Birmingham, for ap-pellee.
   HOLMES, Judge.

This is an appeal from the Circuit Court of Montgomery County’s action requiring the Director of Public Safety to withdraw his order revoking the appellee’s driver license.

The appellee’s complaint requested the issuance of a mandatory injunction. While the proper action is mandamus, able counsel for appellant-Director did not below and does not here question the propriety of the action.

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

Appellee-Cook was arrested by the police of the City of Lipscomb on June 7, 1974, and charged with driving while intoxicated. On June 20, 1974, appellee apparently pled guilty to the offense of possession of a motor vehicle while intoxicated and was convicted of that offense by the Recorder’s Court of the city; he paid a $100 fine and $12 costs on the same day. He received a receipt therefor which stated the date, the amount of the fine, and the nature of the offense.

Appellant-Director then received on the prescribed form DL-6 a record of the appellee having been convicted of driving while intoxicated by the Recorder’s Court of the City of Lipscomb, and in July of 1974, he revoked appellee’s driver license pursuant to Tit. 36, § 68, Code of Ala. 1940. Tit. 36, § 68, states in pertinent part as follows:

“The director of public safety shall forthwith revoke the license of any driver upon receiving a record of such driver’s conviction of any of the following offenses, when such conviction has become final: . . . driving a motor vehicle by a person . . . while intoxicated; . . . ”

Thereafter, appellee through his attorney requested an administrative hearing before the Department of Public Safety. Upon denial of this request, appellee surrendered his driver license.

In September of 1974, appellant-Director received from the Recorder’s Court of the City of Lipscomb another form DL-6, denominated as a corrective copy, stating that while appellee had been charged with driving while intoxicated, his conviction had in fact been for possession of an automobile while intoxicated. The dates of appellee’s arrest and conviction were consonant with those shown on the first form. A final DL-6 form was received by the Director subsequently, stating a conviction for possession, but showing dates at variance with those expressed on the first two forms. After investigation, appellant-Director determined to disregard the corrective forms received by him, and held the license of appellee revoked.

Appellee then brought suit in the Circuit Court of Montgomery County demanding that a mandatory injunction issue against appellant-Director requiring him to withdraw his order revoking appellee’s driver license.

At the hearing in the Circuit Court of Montgomery County, appellee testified that he had been charged with driving while intoxicated on June 7, and convicted of possession on June 20. An affidavit of the attorney who represented appellee before the Recorder’s Court of the City of Lipscomb was admitted into evidence, attesting to the same facts. The aforementioned receipt received by appellee for his payment of fines and costs was also admitted into evidence, as were the three DL-6 forms received by the Director.

Appellant-Director sought to prove that appellee had in fact been convicted of driving while intoxicated, as the first DL-6 form received by him purported to show, and that this conviction had been subsequently and without authority changed. To that end, he introduced copies of the docket records of the City of Lipscomb for ap-pellee’s case, showing that an entry of driving while intoxicated had been altered to read possession while intoxicated. Certain testimony of the Assistant Chief Hearing Officer for the Drivers License Division was also admitted into evidence.

The trial court after the hearing ore terms issued the following order, from which this appeal is prosecuted:

“This cause coming on to be heard is submitted upon the Complaint duly verified by affidavit: answer of Respondent, together with exhibits attached thereto, and testimony ere-tenus [sic]; and the cause being taken under advisement, the Court is of the opinion, and so finds, that the Plaintiff is entitled to relief as prayed for in view of the records from the City of Lipscomb being so confused that it’s difficult to understand and reconcile these records with the changes and alterations to a degree of satisfaction tO' the Court; however, the affidavit of the attorney, Mr. Cole, representing the Plaintiff, together with the receipt issued by the City of Lipscomb on June 20, 1974, are both so persuasive that the Court is reasonably satisfied from the foregoing that a Decree should be entered, and an Order is entered.
“IT IS ORDERED AND DECREED that a mandatory injunction be, and the same is hereby granted, against the Defendant, and requiring him in his capacity to forthwith return driver’s license to Plaintiff, and to withdraw the Order of Revocation, and place Plaintiff in status quo as of June 7, 1974.
“Done and ordered on this 4 day of February, 1975.
“Frank B. Embry
“FRANK B. EMBRY
“Circuit Judge-Supernumerary.”

Appellant-Director by his assignments of error ably advances several arguments urging reversal of the trial judge’s order. However, this court is of the opinion that the order of the court below must be affirmed.

Appellant-Director argues that the trial court erred to reversal in excluding testimony as to certain problems encountered by the Department of Public Safety in other cases involving purported correction of driving while intoxicated convictions to possession convictions.

He contends that such proof was relevant to show the good faith of the Director, and to put the case in its proper context. However, the appellee conceded and the court found that the Director had acted in good faith. Also, such an offer to put a case in context is impermissible, in that under the rule of res inter alios acta, “a litigant cannot be affected by the words or acts of others with whom he is in no way connected, and for whose words or acts he is not legally responsible.” See 32 C.J.S. Evidence § 576, at p. 701. See also Thompson v. Wilson, 258 Ala. 548, 63 So.2d 695. Also, what is relevant is largely a matter of discretion. Ala. Power Co. v. Tatum, 293 Ala. 500, 306 So.2d 251.

Appellant-Director also argues that the offense of possession of an automobile while intoxicated covers the same conduct as driving while intoxicated, so that the City of Lipscomb by ordinance has circumvented state law by affixing a different label to conduct encompassed by a state statute.

We do not find this to be the case. Ordinance No. 108 of the City of Lipscomb sets out driving of an automobile while intoxicated, and being in actual physical control thereof while in such condition, as distinct offenses. The offense of possession, or of actual physical control, relates to nonmoving violations, while moving violations are addressed by the driving while intoxicated provision. See 61A C.J.S. Motor Vehicles § 628, at p. 354.

We further note that this issue was not raised below and cannot be raised for the first time on appeal. Fairhope Single Tax Corp. v. Mitchell, 285 Ala. 689, 235 So.2d 829.

The remaining assignments of error advanced by appellant-Director may be subsumed under the contention of appellant that he has the prerogative to disregard all corrective reports concerning purportedly erroneous records received by him. He contends that the Recorder’s Court of the City of Lipscomb is not endowed with the power to reopen its judgments after the day on which they are rendered. While this point may be well taken, see Russell v. Lee, 282 Ala. 504, 213 So.2d 236, the trial court by its order found there to be no attempt here to change a judgment actually rendered, as appellant sought to prove. We note that the trial judge had ample evidence from which he could conclude that appellee was in fact convicted of the offense of possession rather than that of driving while intoxicated.

Appellant-Director’s contention that he may disregard subsequent claims of error in records received by him finds its basis in the desire to remedy certain problems which he has experienced. These problems concerned alleged abuse by some courts in correcting their records forwarded to him. It is noted that these problems are extraneous to the record.

However, for this court to hold in this instance that the Director may disregard a corrective report received by him, as he would ‘have us do, would be to say that a court could never apprise the Director of errors in its records. While we are not unsympathetic to the Director’s situation, such a holding in this case would exalt convenience over justice. This we cannot do. Resolution of the problem with which the Director finds himself confronted is properly a matter for the action of the legislature, or other appropriate action.

The instant case has been viewed in accordance with the presumptions that where testimony is taken ore tenus before the trial judge his conclusions thereon are like those of a jury and will not be disturbed on appeal unless palpably wrong, and that the trial judge’s conclusions will not be disturbed if fairly supported by credible evidence. Martin v. Howard, 293 Ala. 36, 299 So.2d 727; Patterson v. Brooks, 285 Ala. 349, 232 So.2d 598.

No error having been found in the record, the case is due to be affirmed.

Affirmed.

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


text:
    In re Colonel E. C. DOTHARD, etc. v. Handley Woodworth COOK, Jr. Ex parte Colonel Eldred C. Dothard, etc.
    SC 1582.
    Supreme Court of Alabama.
    May 7, 1976.
    Rehearing Denied June 4, 1976.

      William J. Baxley, Atty. Gen. and Joseph G. L. Marston, III, Asst. Atty. Gen., for the petitioner.
    John S. Tucker, Jr., Birmingham, for respondent.
   MERRILL, Justice.

This case is before us on petition for certiorari to the Court of Civil Appeals. That court affirmed the action of the circuit court which ordered the appellant, Dothard, as Director of Public Safety, to withdraw his order revoking the driver’s license of appellee, Handley W. Cook, Jr.

Cook was arrested by the police of the City of Lipscomb on June 7, 1974, and charged with driving while intoxicated [hereinafter “DWI”]. On June 20, 1974, Cook pleaded guilty to a charge, the nature of which is disputed, and was fined $100.00 plus court costs. He paid the fine and costs on June 20, and received an “official receipt for cash bond.”

Dothard received a record prescribed by statute, denominated a “DL-6,” indicating that Cook had been convicted of driving while intoxicated in the Recorder’s Court of Lipscomb. In July, 1974, pursuant to Tit. 36, § 68, Code 1940, Dothard revoked Cook’s license. Subsequently, Cook surrendered his license.

In September, 1974, Dothard received another DL-6 from Lipscomb. This had a handwritten notation in the margin: “Corrective Copy.” This first corrective copy indicated that while Cook had been charged with DWI, his conviction had not been for DWI, as the original DL-6 had revealed, but rather for possession of an automobile while intoxicated [hereinafter “PWI”]. A second corrective copy, indicating that Cook had been charged with and convicted of PWI, was later received by Dothard. The dates cited in each DL-6 received by Dothard differ significantly; such variance will be discussed below.

Dothard ordered an investigation of the varying DL-6 forms, and following that investigation, determined the original to be legitimate and legally binding, and held that Cook’s license was properly revoked. The course of Dothard’s investigation, which supported his action under the original DL-6, uncovered the following:

(1) The original DL-6 received by Dothard indicated that Cook had been charged with DWI, and had been convicted of DWI on June 20, 1974. The date the fine was paid was not stated.

(2) The original docket sheet (sans alteration), from which the original DL-6 was taken, indicated that Cook had been charged with DWI and convicted of DWI on a date not stated. According to the original docket sheet, Cook had paid his fine on June 20, 1974.

(3) The first corrective copy of the DL-6, received by Dothard on September 9, 1974, indicated that Cook had been charged with DWI but convicted of PWI on June 20, 1974. The date the fine was paid was not stated.

(4) The second corrective copy, received by Dothard on September 30, 1974, indicated that Cook had been charged with DWI but convicted of PWI on September 9, 1974. The date the fine was paid was not shown.

(5) The altered docket sheet from which the corrective copies were drawn indicated that Cook had been charged with “possession of auto” and convicted of the same “offense” on September 9, 1974, and that he had paid the fine for that September 9 conviction the prior June 20.

Because Dothard would not return Cook’s license based on information obtained from this investigation, Cook brought suit in Montgomery County Circuit Court demanding a mandatory injunction against Dothard which would require him to withdraw his order revoking Cook’s driver’s license. At the trial, the State attempted to introduce evidence to prove that “mismanagement,” as evidenced by this case, is .routine practice in the Lipscomb Recorder’s Court. The State was prepared to show the following:

(1) In the last five years, Dothard, in his official capacity, has received thousands of DL-6 corrections dealing with exactly the same charges as in this case.

(2) These corrections came primarily from the same courts.

(3) That numerous reports of such alleged errors have come from the City of Lipscomb.

(4) The Director’s uniform policy is to conduct an investigation, as was done here, when such suspicious corrections are forwarded to him.

(5) In each investigation, save two, the same alterations and contradictions in court records'occurred as was found here.

The trial judge refused to allow this information into evidence and granted Cook’s injunction, stating in pertinent part:

“IT IS ORDERED AND DECREED that a mandatory injunction be, and the same is hereby granted, against the Defendant, and requiring him in his capacity to forthwith return driver’s license to Plaintiff, and to withdraw the Order of Revocation, and place Plaintiff in status quo as of June 7,1974.”

The Court of Civil Appeals affirmed, and we granted the petition for certiorari. The case was argued and we now reverse the judgment and remand the cause to the Court of Civil Appeals.

The pertinent issue in this case is whether the trial court erred in not allowing the State to introduce evidence of the routine practice of Lipscomb’s Recorder’s Court concerning the records and corrective copies of DWI convictions which were regularly sent to the Department of Public Safety. We hold that in determining such evidence to be inadmissible, the trial court erred.

Behavior on the part of a group or organization which is equivalent to behavior of a person held to be habit or custom is designated “routine practice” by the Federal Rules of Evidence. This is the sort of activity with which we are concerned.

Custom has been defined by the American Law Institute’s Code of Evidence as “a means of behavior of a group of persons regularly repeated in like circumstances.” 1 McElroy, Law of Evidence in Alabama, § 42.01(1) (2 ed. 1967). As such, evidence of custom has long been admissible in the courts. Bouldin v. Massie, 7 Wheat. 122, 5 L.Ed. 414 (1822); Fincher v. State, 58 Ala. 215; Wiley v. State, 99 Ala. 146, 13 So. 424; Naugher v. State, 116 Ala. 463, 23 So. 26; Carwile v. State, 148 Ala. 576, 39 So. 220. Carwile states that this court is committed to the proposition that evidence of habit or custom of another may be received in evidence. The rationale for this rule is most aptly stated in the old Minnesota case of Walker v. Barron, 6 Minn. 508, 512 (1861):

“ * * * [Customs] may, however, like any other facts or circumstances, be shown when their existence will increase or diminish the probabilities of an act having been done or not done, which act is the subject of contest.”

Regarding routine practice specifically, such evidence is more willingly received because it “is likely to be more stylized and regimented, thus more invariable than individual conduct * * * the product of concerted planning, and * * * more often than not, the by-product of efficiency.” 2 Weinstein, Evidence, § 406[03] (1 ed. 1975), quoting Slough, “Relevancy Unraveled,” 5 Kan.L.Rev. 404, 449 (1957). Another reason that it is often admitted is because “there is no temptation to confuse this with evidence of character.” McCormick, Evidence, § 162 (1 ed. 1954). Admissibility is generally governed by two criteria: (1) Is the occurrence of the routine practice numerous enough to indicate regularity? and (2) Is the occurrence of the routine practice substantially similar? McCormick, Evidence, § 92 (1 ed. 1954). Here, both criteria are met.

In the instant case, the State’s attorney offered to show evidence pertaining to the routine practice of the Lipscomb Recorder’s Court—facts which have been set out above. In line with the law and policy stated above, such evidence should have been admitted to show the routine practice of that court which produced inferences that the required DWI reports were subsequently altered.

The constitutionality of the ordinance providing for convictions for PWI was not raised in the lower court, nor here, and we do not pass on it at this time.

It is not amiss for us to say that the obvious intent of this ordinance is to get around the state-wide statute, Tit. 36, § 68, Code 1940, by enacting an ordinance under which the city can collect the same fine, but keep it in the city and let the drunken driver keep his license.

Municipalities derive their right to existence from the legislature. It has long been the law that municipalities shall not pass ordinances contrary to the laws passed by the legislature. Constitution of Alabama 1901, Sec. 89, Tit. 7, § 455; Phenix City v. Putnam, 268 Ala. 661, 109 So.2d 836; Winter v. Cain, 279 Ala. 481, 187 So.2d 237; City of Mobile v. Garrett-Montgomery, Inc., 281 Ala. 204, 201 So.2d 42. If municipal courts continue to attempt to evade and countermand the plain mandate of state statutes relating to driving while intoxicated, they may be endangering those powers already delegated to them by the legislature.

REVERSED AND REMANDED.

HEFLIN, C. J., and BLOODWORTH, MADDOX, FAULKNER, JONES, AL-MON, SHORES and EMBRY, JJ., concur.


text:
    Colonel Eldred C. DOTHARD, in his capacity as Director of Public Safety, State of Alabama v. Handley Woodworth COOK, Jr.
    Civ. 581.
    Court of Civil Appeals of Alabama.
    June 9, 1976
   HOLMES, Judge.

The prior opinion of this court having been reversed and remanded to this court, and in compliance with the Supreme Court’s opinion dated May 7, 1976, 295 Ala. —, 333 So.2d 577, this cause is now reversed and remanded to the Circuit Court of Montgomery County.

REVERSED AND REMANDED.

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


author: WRIGHT, Presiding Judge.

text:
    Laura Burford PRUETT v. James Garnett PRUETT.
    Civ. 748.
    Court of Civil Appeals of Alabama.
    June 2, 1976.

      T. W. Thagard, Jr. and Charles S. Coody, Montgomery, for appellant.
    James W. Cameron, Montgomery, for appellee.
   WRIGHT, Presiding Judge.

Laura Burford Pruett, hereafter called plaintiff, appeals from an award for child support and attorney’s fee contained in a judgment of divorce. We affirm.

After some 14 years of marriage and the birth of four children, plaintiff sought divorce for incompatibility. Judgment of divorce was granted.

Plaintiff was granted monthly child support of $325.00 and $250.00 for attorney’s fee. Defendant was directed to maintain life insurance policies in the amount of $150,000.00 upon his life with the children as beneficiaries. He was directed to maintain policies of insurance presently in force upon the lives of the children. He was directed to maintain a major medical insurance policy for the children. In addition, the right to claim the children for income tax dependents was granted to plaintiff.

Defendant is employed as a commission insurance salesman. His income before expenses and retirement deductions was approximately $20,000.00 in 1974. His gross income per year after retirement and expenses was approximately $16,000.00. His monthly income before taxes was calculated to be between $1,350.00 and $1,500.-00.

Plaintiff has a sizeable estate in stocks derived from gifts and inheritance. Further inheritance is pending settlement. Her income in 1974 was some $19,000.00 before taxes. Plaintiff was given title to the $95,-000.00 home in which the family has lived for some four years. There is an unpaid balance of $16,000.00 to $18,000.00 owed on the home. The primary source of funds invested in the home came from gifts to plaintiff from her father. The personal funds of plaintiff have apparently substantially contributed to the life-style of the family throughout the marriage.

Plaintiff on appeal submits that the award of $325.00 per month support for four children is so little as to be an abuse of discretion by the trial court.

We have carefully reviewed the record to determine if the award is so unsupported by the evidence as to be unjust and palpably wrong. Such is the test placed upon a reviewing court in order to overcome the presumption of correctness which accompanies a judgment rendered by the trial court after oral hearing. Sellers v. Sellers, 50 Ala.App. 158, 277 So.2d 616.

Considering the income of defendant after reasonable estimate of deduction for taxes, state, federal and F.I.C.A., together with the cost of implementing the total award given by the judgment, we are unable to find error. The actual cost of the award, including support and insurance is above $400.00 per month. The loss of dependency of the children for tax purposes will materially lessen the net income of defendant. The result may be calculated to take more than one-third of defendant’s income.

The test of determining the reasonableness of an award for child support has at least two facets. The needs of the children and the ability of the father to pay. Barber v. Barber, 51 Ala.App. 448, 286 So.2d 852, cert. den., 291 Ala. 772, 286 So.2d 857. It is seldom that the first is met or exceeded by the latter. Such result is one of the unfortunate consequences of divorce. If the ability of the father to pay is so exceeded that he is unable to meet his own cost of self maintenance without sinking into insolvency, the best interests of the children are not served. The equities of each must be weighed by the court. We find the judgment of the trial court to have reasonably balanced the equities within its discretion according to the evidence.

Plaintiff complains also of the form and substance of the judgment awarding attorney’s fee.

The court used unusual language by awarding an attorney fee of not less than $250.00. Regardless of the language, the amount required of defendant is definite and certain. The matter of award of an attorney’s fee to the wife is solely within the discretion of the court. Donahey v, Donahey, 52 Ala.App. 596, 296 So.2d 188. There is no requirement that the award cover all the fee which the attorney may earn or have charged the wife.

Finding no basis for disturbing the decree below, we affirm it. Attorney’s fee as requested by appellant is denied.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


author: BRADLEY, Judge.

text:
    Helen Thompson STRICKLAND v. James OSBORN and Mattie Jean Osborn.
    Civ. 791.
    Court of Civil Appeals of Alabama.
    June 2, 1976.

      Murray W. Beasley, Tuscumbia, for appellant.
    Barry Mansell, Russellville, for appel-lees.
   BRADLEY, Judge.

This appeal is from a judgment modifying a prior child custody decree.

The appellant, Helen Thompson Strickland, the mother of the child in question, and the father of the child, Robert Thompson, were divorced in June or July, 1973. There were three children born of this marriage — two girls and a boy. The parents agreed that the two girls would go with the mother and the boy with the father. The divorce decree was silent as to the custody of the children.

Robert Thompson remarried shortly after the divorce and then, sometime during the first part of 1974, he was killed in a work related accident. His wife, the child’s stepmother, was awarded custody in May 1974.

The stepmother turned the child over to the Osborns. — Mrs. Osborn is the child’s father’s sister — in December 1974. The stepmother’s whereabouts is unknown.

In March 1975'Mrs. Strickland, the natural mother, petitioned the court for custody of the son who is now twelve years old. The Osborns counterclaimed and asked for custody of the child. Hearing was held before the court sitting without a jury in December 1975, and, on January 23, 1976 the court rendered a decree awarding custody of the child to the Osborns and giving the mother, Mrs. Strickland, certain visitation privileges. She appeals from that decree.

Appellant argues that the trial court erred in awarding the child’s custody to the Osborns for the reason that she is the natural parent and was not shown to be unfit; therefore she should have been awarded the custody of the son. Appellees counter by saying that the trial court is bound to ascertain what is in the best interest of the child in awarding its custody. They say that the court should have considered the request of the natural parent but that ultimately it has to decide where the interests of the child will be best served, be it with the Osborns or with the natural mother.

We have said many times that the primary objective of a court in a child custody case is to make a determination based on the best interests and welfare of the child. White v. Appleton, 53 Ala.App. 702, 304 So.2d 206; Esco v. Esco, 51 Ala.App. 656, 288 So.2d 444; Borsdorf v. Mills, 49 Ala.App. 658, 275 So.2d 338. Observing this rule of law does not automatically rule out the natural parent as a custodian, but it does prevent slavish adherence to the principle that if the natural parent is fit that parent receives custody of the child. See Brill v. Johnson, 293 Ala. 435, 304 So.2d 595. This rule has even stronger effect in cases where custody has been awarded to someone other than the natural parent by prior decree, and the natural parent seeks return of the child by petition to modify. In such cases the prior decree prima facie rebuts any presumption which favors the natural parent as custodian, and places on her the burden of proving that the modification is necessary to promote the child’s best interests.

The evidence in the instant case does not allude to any unfitness of the natural mother nor does it cast any doubt on the fitness of the Osborns to be custodial parents of the child. It does show that the mother agreed initially for the child to be in the custody of the father; that she did not contest the award of custody to the stepmother on the death of the father; that the child has been with the Osborns for over a year, is well adjusted there, is doing well in school, is loved by the Os-borns and apparently does not want to be with his mother. It is clear that the child had grown accustomed to a satisfactory environment which the courts should exercise caution in unsettling.

Adhering to the frequently cited rule that where a child custody case is heard orally by the court, its findings on appeal will not be disturbed except where found to be plainly and palpably wrong, Modling v. Modling, 45 Ala.App. 493, 232 So.2d 673, we conclude that the trial court’s decree should not be disturbed. We affirm.

AFFIRMED.

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


text:
    Tom J. VENTRESS, Director of Department of Industrial Relations, State of Alabama v. Lois F. BATEY.
    Civ. 785.
    Court of Civil Appeals of Alabama.
    June 2, 1976.

      Arthur J. Reid, Montgomery, for appellant.
    Andy Hamlet, Jr., Scottsboro, for appel-lee.
   WRIGHT, Presiding Judge.

The State appeals from a judgment of the Circuit Court of Jackson County in favor of a claimant for unemployment compensation benefits. We affirm.

Lois Batey filed claim for benefits on November 19, 1973. Her claim was denied through all the administrative process. She appealed to trial de novo in circuit court as permitted by Title 26, Section 221, Code of Alabama (1940). The administrative referee and appeals board had denied the claim upon a determination that claimant had voluntarily left her last two places of employment without good cause connected with the work. She was disqualified for compensation under Title 26, Section 214 — B.

The testimony before the trial judge was that claimant had been employed by Van Heusen Company for some four years prior to October 19, 1973; due to the economy Van Heusen had cut back until claimant and other employees were working half days or less, accumulating only about 30 hours per week; claimant’s pay scale was $1.60 per hour; she concluded that her pay was hardly sufficient to pay her expense of travel to a new residence some twenty miles away and pay a baby sitter; she told her foreman she was considering giving notice of quitting; he, asked her to wait until Friday before taking any action; on Friday, the foreman asked her whether she still intended to give two weeks notice of quitting; claimant answered, “as far as I know”; the foreman told her “you can knock off today because we don’t need you anymore.”

There was evidence that claimant stated to the representative of the Department that she quit her job with Van Heusen because she had moved too far away.

Subsequent to employment with Van Heusen, claimant worked for Benham Corporation for nine days. Her job was sewing flies on men’s underwear. Her job with Van Heusen had been as a folder of shirts. She left her employment with Ben-ham Corporation on November 18, 1973. She stated that the job with Benham was tedious and caused her to be nervous and was detrimental to her health. The only medical evidence presented was a statement from a physician that he had treated claimant while she was employed by Van Heusen for gastritis. The statement, dated December 18, 1973, was on a form furnished by the Department. It indicated that claimant was able to do her usual work as of November IS, 1973. Though a part of the file on claimant forwarded by the department to' the court as provided by Title 26, Section 222, there is no- indication that the statement was introduced in evidence at the trial de novo. The physician was not a witness at the trial.

After hearing the witnesses orally, the trial judge entered judgment finding claimant entitled to compensation in the sum of $476.00.

Department presents error contending that claimant was disqualified for compensation because she voluntarily left her employment with Van Heusen and Benham Corporation without good cause.

We have carefully examined the evidence presented to the trial judge. It is settled that the judgment entered by a judge after hearing ore tenus has the weight of a jury verdict. Such judgment will not be overturned upon appeal unless the preponderance of the evidence is so great as to convince this court that it is wrong and unjust. Ala. Dept. of Ind. Relations v. Anderson, 41 Ala.App. 267, 128 So.2d 532.

It is the conclusion of this court that there is evidence to support a finding of fact that claimant did not voluntarily leave her employment with Van Heusen on October 19, 1973, but was, rather, dismissed because she announced that she was contemplating giving notice of quitting. The evidence was that two weeks’ written notice of intention to quit was the practice at Van Heusen. Such notice was never given. She was dismissed before she could or would have given notice.

We further conclude that there is evidence to support the finding that claimant voluntarily left her employment with Benham with good cause connected with her work. She testified that the work was tedious, different from her work with Van Heusen, and that it made her highly nervous. There was no rebuttal to that testimony. The statement from the physician, if properly in evidence, did not conflict with the testimony of claimant in that respect. It did not indicate that she was under his care at the time she was employed by Benham nor at the time of her quitting. It is not the province of this court from judgment entered after oral hearing to weigh the testimony or determine its preponderance. Scott Paper Co. v. Novay Cherry Barge Service, 48 Ala.App. 368, 265 So.2d 150.

We further conclude that the evidence tends to show that claimant first filed a claim for benefits on November 18, 1973. At that time she stated that she was unable to work due to her nervous condition. It was not until December 13, 1973, that she registered or reported that she was able to work. Under the provisions of j Title 26, Section 213(B) and (C), an un-' employed individual though not disqualified for benefits under Section 214, yet must be available for work in order to receive benefits for any week. We must therefore hold that claimant was not entitled to benefits until December 13, 1973. The judgment of the trial court was for a lump sum representing 14 weeks at $34.00 per week. One week had been paid and was not included in the judgment. This court does not have before it the necessary information to calculate the amount that the judgment below exceeded the benefits which we have found to be due. We therefore must reverse and remand the judgment below unless claimant enters remittitur for benefits prior to December 13, 1973. If such remittitur is entered of record in the Circuit Court of Jackson County, Alabama, within ten days, the judgment below is affirmed.

AFFIRMED UPON REMITTITUR.

BRADLEY and HOLMES, JJ., concur.