text:
    In re Johnny JONES et al. v. Georgia Ann Snider BRIDGES et al. Ex parte James E. SPILLER, Jr.
    SC 1519.
    Supreme Court of Alabama.
    Aug. 20, 1976.

      Tucker, Gray & Thigpen, Tuscaloosa, for petitioners.
    Phelps, Owens & Jones, Tuscaloosa, for respondents.
   ALMON, Justice.

This is a mandamus proceeding to review certain rulings of the trial court in setting aside a sale of land and later confirming a sale to an upset bidder allegedly without proper notice to the original highest bidder.

A bill to sell for division two parcels of land was filed in the Circuit Court of Tuscaloosa County in August, 1972. The larger parcel (Parcel A) contained approximately 340 acres, and the second parcel (Parcel B) contained approximately Th acres.

The only objections raised involve Parcel A. Parcel B was sold to bidders not involved in this proceeding.

On June 11, 1975, Judge Nicol ordered the property to be sold by the register under sealed bids. Thereafter, pursuant to the order of the court, the register advertised the sale for three successive weeks in a newspaper of general circulation in Tuscaloosa County. On July 23, 1975, the bids were opened and the petitioner, James E. Spiller, Jr., was certified as having submitted the highest bid ($72,006.66) on Parcel A, according to the register’s report. Additionally, the register certified that in his opinion the price bid for Parcel A reflected its fair and reasonable market value and that the sale was due to be confirmed.

Thereafter, on August 7, 1975, a hearing was held to consider the confirmation of the sale. The court’s order found that the petitioner’s bid was less than the reasonable market value of the property and should not be confirmed. The court further found that the fair and reasonable market value of the property was not less than $85,000.00. He found that petitioner, who had been the high bidder at the sale, had rejected any consideration of paying $85,000.00 and that the second highest bidder was willing to pay the fair and reasonable value of the property. Therefore, the court rejected the results of the sealed bid sale and ordered a new private sale to Leon Patton, Robert E. Spiller, Jr., and P. L. Spiller after finding that all bidders had been contacted and that this was the only bid of $85,000.00 which had been made.

On August 8, 1975, petitioner filed a motion to intervene in said cause alleging that he did not have proper notice of the confirmation hearing and that a private sale had not been previously authorized by the court. The motion was set for hearing on August 19, 1975.

At this hearing petitiofier requested the court to (1) confirm his original bid, (2) set aside the upset bid of $85,000.00 as it did not comply with the court’s order or (3) order a public sale at which he would begin the bidding at $87,500.00, which sum had been paid into court.

On September 19 the court denied petitioner’s motion to intervene, as well as other motions orally made before the court at the hearing. On October 29,1975, petitioner filed a petition for writ of mandamus in this court. A rule nisi was issued.

There are two legal principles that run through the law of judicial sales and sometimes appear to conflict. The first principle is as follows:

“ • - . [Wjhere the sale is to a stranger and fairly conducted, without fraud or mistake, inadequacy of price alone will not suffice to set the sale aside unless so grossly disproportionate to the real value as to amount to fraud. Harduval v. Merchants’ & Mechanics’ Trust & Savings Bank, supra, 204 Ala. [187] at page 188, 86 So. 52.
“This is the general, underlying principle and based on public policy, recognizing that to adopt a rule of setting aside sales because of a subsequent, advance offer would chill the bidding and render judicial sales generally unstable, thereby resulting in discouraging bidders and diminishing the amounts realized. Bethea v. Bethea, 136 Ala. 584, 34 So. 28; 35 C.J. 105, § 170.” Campbell v. Carter, 248 Ala. 294, 296, 27 So.2d 490, 491 (1946).

See also Sieben v. Torrey, 252 Ala. 675, 677, 42 So.2d 621, 622 (1949); Martin v. Jones, 268 Ala. 286, 288, 105 So.2d 860, 863 (1958).

The second principle is that

“. . . [I]n a sale of this kind [for division] the redemption statutes give no protection to the owners and accordingly it is the duty of the court to see that a reasonably fair price is obtained before confirming the sale. . . . ” Berman v. Patton, 249 Ala. 317, 319, 31 So.2d 134, 136 (1947).

See also Roy v. O’Neill, 168 Ala. 354, 359-60, 52 So. 946, 948 (1910); Copeland v. Giles, 271 Ala. 302, 304, 123 So.2d 147, 149 (1960).

The seeming conflict between these two legal principles was discussed and explained on Roy v. O’Neill, supra:

“At first sight there seems to be some confusion in the cases as to the principles which should control, in a court of equity, in regard to affirming, or refusing to affirm, sales made under its orders; but the seeming conflict may be to a great extent explained by the fact that some of the cases relate to sales under mortgages, or creditors’ bills, or other proceedings to enforce the collection of a debt.
“When the court, in the progress of administration, grants an order for the sale of the lands of the estate, it seems that a different principle applies. The rights of no creditor to the enforcement of his claim is involved, and it seems proper and equitable that the court should see that a reasonably fair price is obtained, before confirming the sale. Accordingly, section 2642 of the Code of 1907 provides that the court must be satisfied not only ‘that the sale was fairly conducted,’ but also that ‘the land sold for an amount not greatly less than its real value,’ before confirming the sale.
It is true that said section relates to proceedings in the probate court; but this court has held in this case, when before this court, at a previous term, that the requirements of the Code in ordering sales of land in the probate court must be complied with, in the chancery court (Roy v. Roy, 159 Ala. 555, 48 So. 793), and, aside from that decision, as the chancery court is making the sale for the same purpose, and the same reasons apply, it would at least furnish a rule to guide the discretion of the chancellor. Accordingly, in sales made by order of the probate court, it has been held that the sale is incomplete and rests in negotiation, until confirmed, and that the court is the vendor, and it may reject the offer ‘if the sale has not been fairly conducted, * * or if the price is disproportionate to the value of the lands,’ etc.” (Citations omitted). 168 Ala. at 358-60, 52 So. at 947-48.

Although O’Neill involved an order for sale in the progress of an administration of an estate, the same principles apply in partition sales. Copeland v. Giles, supra.

There have been two cases involving partition sales since O’Neill which have adopted the language of the first principle, Sieben v. Torrey, supra, and Martin v. Jones, supra. In those cases, however, the court was merely affirming the discretion of the trial court in refusing to set the sale aside.

This court combined the two principles and made probably the best statement of the law in Campbell v. Carter, supra, which involved a partition for sale in connection with the administration of an estate:

“. . . While we have said that in such a proceeding ‘the court should see that a reasonable fair price is obtained, before confirming the sale’ (Roy v. O’Neill, 168 Ala. 354, 52 So. 946, 948), the same policy against avoiding such sales because of a subsequent advance offer inheres and, if the court is satisfied the sale was fairly conducted and the land sold for a price not greatly less than its real value, the purchase price having been paid or properly secured, the sale should be confirmed.” (Citations omitted). 248 Ala. at 296, 27 So.2d at 491.

We would conclude from the above mentioned cases that a court should not refuse to confirm a partition sale if a reasonably fair price is obtained. However, if after considering all of the surrounding facts and circumstances, it is convinced that the price obtained was not a reasonably fair one, then it is within the court’s discretion to order a new sale. Taylor v. Wilson, 233 Ala. 182, 184, 170 So. 833, 835 (1936). “Each case of this kind must rest upon its own bottom.” Berman v. Patton, supra, 249 Ala. at 319, 31 So.2d at 136.

In the instant case we are not willing to hold the court abused its discretion in finding that the petitioner’s bid was less than the reasonable market value and in refusing to confirm the bid. However, we do think the court abused its discretion in ordering a private sale to the second highest bidder without giving the petitioner an opportunity to raise his bid. It is true that the court found that the petitioner had rejected any consideration of paying a higher bid but this rejection came in a conversation petitioner had with an attorney for one of the landowners. In that conversation the attorney suggested to him that the court would probably not confirm the sale and that petitioner should raise his bid to $85,000.00. At that time petitioner had no way of knowing for certain that his bid would not be confirmed. After the court refused his original bid, petitioner was given no opportunity to prepare and submit a new bid. The petitioner was the highest bidder at the original sale, and we think this entitles him to certain considerations.

“While the sale is not complete and rests in negotiation until confirmed, yet it is recognized that the purchaser assumes burdens by bidding and having the property ‘knocked off’ to him at the sale, and likewise, with the burdens placed upon him by the law, he acquires rights thereunder. He is regarded as the owner from the day of his purchase; bearing.the loss, if the thing sold perishes, or deteriorates in value, and entitled to any appreciation in value, or accretions to the thing, during the time necessarily intervening between the sale and the confirmation. From the ‘day of purchase, until the decree of confirmation, the purchaser becomes a quasi party to the cause in which the decree of sale was rendered, subject, as such, to the decrees and orders the court may render in reference to the sale, its vacation, or confirmation.’ ” (Citations omitted.) Taylor v. Wilson, supra, 233 Ala. at 184-85, 170 So. at 835-36 (1936).

In the present case, the petitioner should have been given time to submit a new bid after the court refused to confirm his original bid. As it was, the second highest bidder was given a chance to bid again, but the highest bidder was not.

The court, in attempting to justify its action, relies on the case of Deverell v. Horton, 285 Ala. 588, 234 So.2d 879 (1970). In Deverell there was a partition sale in which the high bidder submitted a bid of $13,000.00. An exception was filed and the court heard argument on the exceptions. At the conclusion of the arguments, the court continued the hearing on the exceptions and ordered that any of the parties to the proceeding could obtain a firm offer from a prospective purchaser.

The court later accepted a new higher bid by the original high bidder. The important point to note in Deverell is that the court did give all parties a chance to submit a higher bid.

We think that in the present case all of the parties to the bidding should have been given an opportunity to prepare and submit a higher bid. This is consistent with both our prior decisions in these cases and the fundamentals of fair play.

The court suggested in its decree of June 11, 1975, that, in the event the sale by sealed bids was not approved, it would order a new sale at public auction. Therefore, we direct the court to set aside the sale of Parcel A and order a new sale at public auction with proper notice. The bidding at public auction should begin with the $85,000.00 bid of Mr. Leon Patton et al. Since the $85,000.00 of Mr. Patton et al. has been paid to the register, this money should remain on deposit in an appropriate interest-bearing account unless and until such time as a higher bid is received at public auction.

If Mr. Patton et al. are not the highest bidder at public auction, the $85,000.00 (along with any interest which may have accrued) should be returned to Mr. Patton et al. and the deed previously given by the court to them should be declared void.

WRIT OF MANDAMUS AWARDED.

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


source: Caselaw Access Project

author: BLOODWORTH, Justice.

license: Public Domain

text:
    Romelia WILLIS v. DEMOPOLIS NURSING HOME, INC., etc., et al.
    SC 1927.
    Supreme Court of Alabama.
    Aug. 20, 1976.
    Rehearing Denied Sept. 17, 1976.

      Booker T. Forte, Jr., Eutaw, for appellant.
    Lloyd, Dinning & Boggs, Demopolis, for appellees.
   BLOODWORTH, Justice.

Plaintiff appeals from summary judgment for defendants in a defamation action. We affirm.

Plaintiff, Romelia Willis, is a former employee of defendant Demopolis Nursing Home, Inc. The other defendant is Joyce Barnes, an employee of the nursing home. Plaintiff’s employment was terminated by the nursing home in March 1974. Shortly thereafter, H. A. Lloyd, an attorney, wrote a letter to Booker Forte, attorney for plaintiff, concerning the termination of plaintiffs employment. The letter indicates it was written in response to an inquiry by Mr. Forte as to why plaintiff’s employment was terminated. [In answer to interrogatories, Joyce Barnes, administrator of the nursing home and the named individual defendant, stated that she authorized Mr. Lloyd to send the letter and that she assisted him in the preparation of it.] The letter stated, inter alia, that on two occasions, around September 28, 1973, and October 8, 1973, a patient for whom plaintiff was responsible was found heavily sedated. It stated that the patient was not supposed to have any sedation. The letter also stated that in January 1974 plaintiff administered an overdose of medication to another patient.

In November 1974, plaintiff filed suit against the nursing home, its administrator Mrs. Barnes, and others whose names were alleged to be unknown to plaintiff. Plaintiff alleged that on or about September 28, 1973, and January 11, 1974, and on subsequent occasions, the administrator and other employees of the nursing home had, within the line and scope of their employment, falsely and maliciously stated in the presence of divers persons that plaintiff had administered overdoses of medication to a patient or to several patients. By amendment, plaintiff alleged that the nursing home ratified the alleged defamation.

A few days before the date set for trial of the case, defendants filed a motion for summary judgment. By agreement of plaintiff and defendants, the hearing was held prior to the expiration of ten days after service of the motion. See Rule 56(c), ARCP. At the hearing, the court was informed by plaintiff that the only evidence that would be introduced to prove the alleged defamation would be the letter written by Mr. Lloyd, answers to interrogatories, and admissions of fact. Summary judgment for defendants was granted.

With the exception of the letter, the materials considered by the trial court contain no evidence whatsoever that the alleged defamatory statements were ever made. The letter is evidence in itself that the statements were made to plaintiff’s attorney, and in light of the administrator’s statement that she assisted in the preparation of the letter, it is also evidence that she made the statements to Mr. Lloyd. The letter contains no evidence, however, that the statements were made on any other occasion or to any other persons.

On this appeal, plaintiff contends that summary judgment was erroneously granted and that she should have been permitted to add certain other employees as defendants. Plaintiff argues that the letter itself constituted a defamation and that the letter was evidence that the administrator had made defamatory statements to Mr. Lloyd. Defendants answer that the letter and the statements made to Mr. Lloyd were privileged. Plaintiff responds that the privilege was conditional and was lost because of actual malice on the part of the defendants. Defendants counter that the record shows no evidence of actual malice.

Both plaintiff and defendants treat the question of whether defendants are liable for the statements apparently made to Mr. Lloyd (and contained in the letter to Mr. Forte) as a question of privilege. However, under some of our previous decisions the question would appear to be whether the facts constituted publication of the statements so as to constitute defamation. If this view is taken, then the question of privilege is not reached. See McDaniel v. Crescent Motors, Inc., 249 Ala. 330, 333, 31 So.2d 343 (1947) (per Foster, J.).

In McDaniel, supra, one of defendant’s managers had a conversation with plaintiff’s agent, in the presence of two other managers, concerning a complaint against plaintiff, an employee of defendant. He made allegedly slanderous statements about plaintiff in the course of the conversation. Plaintiff’s agent was business agent for plaintiff’s union and was therefore agent for all members with respect to complaints against them by their employers. The agent had requested defendant’s manager to take up all such complaints with him. This Court held that such alleged statements were not actionable because there was no publication under these circumstances. The Court stated it did not reach the question of privilege. See also Burney v. Southern Ry. Co., 276 Ala. 637, 165 So.2d 726 (1964); Mims v. Metropolitan Life Ins. Co., 200 F.2d 800 (5th Cir. 1952); Schinzel v. Vuyk, 126 Misc. 202, 213 N.Y.S. 135 (1925); Wells v. Belstrat Hotel Corp., 212 App.Div. 366, 208 N.Y.S. 625 (1925); Freeman v. Dayton Scale Co., 159 Tenn. 413, 19 S.W.2d 255 (1929).

Other authorities say that this analysis confuses publication with privilege. They contend that it is a fiction to treat statements between a principal and his agent or statements to another’s agent as not being publication. It is contended that it is more realistic to treat such statements as privileged communications, when, of course, privilege is justified. See F. V. Harper & F. James, Jr., The Law of Torts § 5.15 (1956); W. L. Prosser, The Law of Torts § 113 (4th ed., 1971); E. P. Seelman, The Law of Libel and Slander in the State of New York §§ 121 et seq., 282 (1964); Restatement of Torts § 577 (1938). Among our Alabama cases which justify the privilege approach are: Ripps v. Herrington, 241 Ala. 209, 1 So.2d 899 (1941); Interstate Electric Co. v. Daniel, 227 Ala. 609, 151 So. 463 (1933); Weir v. Brotherhood of Railroad Trainmen, 221 Ala. 494, 129 So. 267 (1930); Berry v. City of New York Ins. Co., 210 Ala. 369, 98 So. 290 (1923); Kenney v. Gurley, 208 Ala. 623, 95 So. 34 (1923); Phillips v. Bradshaw, 167 Ala. 199, 52 So. 662 (1910).

In Berry, supra, the no-publication approach was rejected in the case of the dictation of a defamatory letter to a stenographer, but in Burney v. Southern Railway Company, supra, Berry was distinguished and the no-publication approach was given limited acceptance.

In Phillips, supra, this Court held that communications by an employer to the superintendent of his property concerning the care and protection of that property is confidential and thus conditionally privileged.

In Berry, supra, this Court set forth the requirements for a qualified or conditional privilege:

“ ‘Where a party makes a communication, and such communication is prompted by duty owed either to the public or to a third party, or the communication is one in which the party has an interest, and it is made to' another having a corresponding interest, the communication is privileged, if made in good faith and without actual malice. * * * The duty under which the party is privileged to make the communication need not be one having the force of legal obligation, but it is sufficient if it is social or moral in its nature and defendant in good faith believes he is acting in pursuance thereof, although in fact he is mistaken.’ ”

210 Ala. at 371, 98 So. at 292. The alleged defamatory publications in this case qualify under this definition.

Although we have alluded to these two lines of authority, we do not find it necessary to decide which should be followed in this case, since the result will be the same regardless as to which view is followed.

If there is no publication, there is no defamation. McDaniel v. Crescent Motors, Inc., supra.

If there is publication, the publication is at least conditionally privileged.

The question of whether a communication is privileged by reason of its character or the occasion on which it was made is a question of law for the judge. O’Barr v. Feist, 292 Ala. 440, 296 So.2d 152 (1974). Where a communication is conditionally privileged, it is free from the legal imputation of malice and is actionable only if there is actual malice. Id. The burden is on plaintiff to prove actual malice. Interstate Electric Go. v. Daniel, supra.

This Court has recognized that disposition of the issue of actual malice by summary judgment is generally inappropriate. Loveless v. Graddick, 295 Ala. 142, 325 So.2d 137 (1975). However, where no proof of malice is offered at all, summary judgment is appropriate. Id.

Actual malice

“. . . may be shown by evidence of previous ill will, hostility, threats, rivalry, other actions, former libels or slanders, and the like, emanating from the defendant, or by the violence of the defendant’s language, the mode and extent of publication, and the like.”

Kenney v. Gurley, 208 Ala. at 626, 95 So. at 37.

In this case, plaintiff has offered no evidence whatsoever of actual malice, not even a scintilla. Plaintiff states in brief that she was prepared to prove at the trial that the statements in question were untrue. However, no such evidence was offered on summary judgment; and, even if the statements were shown to be untrue, that showing would not be evidence of actual malice. Quoting from Newell, Slander and Libel, § 398 (3d ed., 1914), this Court has said,

“ ‘The fact that the statement is admitted or proved to be untrue is no evidence that it was made maliciously, though proof that defendant knew it was untrue when he made it would be evidence of malice. If the defendant is in a position to prove the truth of his statement, he has no need of privilege; the only use of privilege is in cases where the truth of the statement cannot be proved. . .’”

Kenney v. Gurley, 208 Ala. at 626, 95 So. at 37.

We hold therefore that summary judgment was appropriate in this case.

AFFIRMED.

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


author: HOLMES, Judge.

text:
    Luther LEGG v. AMERICOLD COMPRESSOR COMPANY, a corporation.
    Civ. 831.
    Court of Civil Appeals of Alabama.
    Aug. 25, 1976.
    James C. Francis, Decatur, for appellant.
    St. John & St. John, Cullman, for appel-lee.
   HOLMES, Judge.

This is a workmen’s compensation case. From a judgment for the employer the injured employee appeals.

Title 26, § 294, Code of Ala.1940, provides that every injured employee shall, within five days of the occurrence of the accident, give or cause to be given to the employer written notice of the accident. Failure to give such notice results in forfeiture of the benefits to which the injured employee is otherwise entitled unless such failure falls within one of the statutorily enumerated exceptions.

The principal issue in this case is whether the plaintiff-appellant, Luther Legg, complied with the notice to employer provision of the statute.

The transcript of the evidence before this court reveals the following:

On March 24, 1976, the date of the alleged injury, Luther Legg was employed as a machine operator by the defendant company. On that date, he reported to work for the third shift, which meant that he was to work from 11:00 P.M. until 7:00 A.M. The employee testified that shortly after his shift commenced, while he was attempting to change a part in the machine where he was assigned as operator, he slipped and thereby injured his back. Immediately after the mishap, Legg complained of back pain to another machine operator who recommended that he rest until the pain subsided. Legg worked throughout the remainder of the shift, resting intermittently to obtain relief from the back pain.

On the day following the accident, Legg saw a physician who prescribed medicine and rendered treatment to him for approximately three weeks, during which time he continued to work. Thereafter, on the 22nd or 23rd of April, Legg consulted another physician who diagnosed his injury as a herniated disc. On May 2, surgery was performed to remove the disc, and the operating physician testified that appellant had suffered a ten percent loss of function of the body as a whole as a result of the accident. The appellant’s absence from his place of employment resulting from his injury totaled approximately twelve weeks.

The employee testified that he informed his “lead man” or group leader, Blair Davis, of his injuries on the night of the accident, albeit Davis at the time of trial had no recollection of having received such information. Appellant’s only other direct communications with his employer concerning the accident transpired subsequent to the operation on June 4 and June 18, 1976, nearly three months after the alleged injury. On the former date, Legg filed a claim for workmen’s compensation benefits through J. D. Yeager, the personnel manager of Americold Compressor Company, defendant-appellee. Legg did not at this time or at any time subsequent thereto indicate that his injuries were work related. Moreover, on the latter date, Legg made a statement to Dwight Cagle, a representative of appellee’s insurance carrier, to the effect that he had had no accident during his regular shift on the 24th of March.

Against this background, the trial court found that Americold did not receive notice of injury as contemplated by § 294 of the statute.

As shown by a recitation of the evidence, the appellant did not provide the written notice contemplated by the statute. However, he maintains that his oral communication to Blair Davis provided appellee with actual notice of his injury, thereby excusing his giving written notice.

The law in Alabama is clear that written notice will not be required where it is shown that the employer has actual knowledge of the injury. Ex parte Stith Coal Co., 213 Ala. 399, 104 So. 756; Speigner v. McGhee, 55 Ala.App. 384, 316 So.2d 215; B. F. Goodrich Company v. Martin, 47 Ala.App. 244, 253 So.2d 37, cert. denied, 287 Ala. 726, 253 So.2d 45. Knowledge of the injury may be obtained in various ways. Witnessing of the injury by a supervisory employee has been held sufficient to excuse written notice, 3 Larson, Workmen’s Compensation Law, § 78.31(a), although notice of the injury to a mere co-employee is not sufficient. Sloss-Sheffield Steel and Iron Co. v. Keefe, 217 Ala. 409, 116 So. 424. We do not here decide whether the employee’s alleged communication to his group leader would suffice to charge the appellee company with knowledge of the information contained therein, for that issue is not before us. Put another way, the evidence regarding this communication is in conflict. The judgment of the trial court stated that “Plaintiff [appellant] failed to give notice to defendant as required under the Workmen’s Compensation Act.”

The issue becomes whether there is any legal evidence to support such ruling, for, as stated by this court in B. F. Goodrich Company, supra:

“Our review by certiorari does not perform the functions of an appeal. The weight or preponderance of the evidence or whether the finding of fact by the trial court is proper is not before us on review by certiorari. We must accept such finding if it is supported by any legal evidence. . . .” (47 Ala.App. at 250, 253 So.2d at 43)

Accord Beatrice Foods Company v. Clemons, 54 Ala.App. 150, 306 So.2d 18; City of Moulton v. Pearson, 54 Ala.App. 340, 308 So.2d 252. Similarly, in Davis-Day Timber Company, Inc. v. Gentry, 54 Ala.App. 385, 389, 309 So.2d 97, 100, 101, this court in referring to review of workmen’s compensation cases on certiorari declared:

“Where testimony is conflicting but there is testimony supporting finding of trial court in workmen’s compensation proceedings, such finding is conclusive.”

Review of the record reveals evidence to support the finding of the trial court. Although appellant did testify that he told Davis of his injury, the latter stated that he did not remember Legg’s apprising him of the injury. Furthermore, the employee, although he continued to work for three, weeks immediately after the accident, never informed the company of the mishap. Nor could he testify with certainty that he had even told any of the physicians who treated him how the injury occurred. In fact, the only direct communications with the company concerning the injury occurred nearly three months after the injury and more than a month after the surgery. In neither instance did Legg inform the company that the source of his back injury was a work related accident. Moreover, on June 18, he even stated that he didn’t have any problems or accident during his regular shift on March 24.

As previously stated, we do not weigh the evidence upon review by certiorari. We determine whether there is any evidence to support the finding of the trial court. Here, the existence of such evidence is manifestly apparent. The judgment is therefore due to be and is affirmed.

AFFIRMED.

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


text:
    Ellis Max STOUT v. Christa M. STOUT.
    Civ. 906.
    Court of Civil Appeals of Alabama.
    Sept. 1, 1976.
    William G. Hamm, Jr., Huntsville, for appellant.
    Dieter J. Schrader, Huntsville, for appel-lee.
   HOLMES, Judge.

This is an attempt by the appellant to review a contempt proceeding.

The appellant has filed with this court a notice of appeal which in pertinent part reads as follows:

“Notice is hereby given that Defendant appeals to the above named court giving the Appellant a five day jail sentence for contempt.”

Put another way, the appellant is seeking review of the contempt proceedings by appeal.

This court has carefully reviewed the record and we cannot determine, among other items, whether the appellant was incarcerated, is now incarcerated, or if in fact ever was incarcerated. In any event, the proper remedy for review of contempt proceedings is by habeas corpus if the party is in jail, or by certiorari if the party is not, and appeal is not the proper remedy. Killingsworth v. Killingsworth, 284 Ala. 524, 226 So.2d 308. See also 4A Ala.Dig. Contempt &wkey;67 and cases cited thereunder.

There are cogent reasons why the above is the law. See Graham v. City of Sheffield, 292 Ala. 682, 299 So.2d 281. Suffice it to say that one of the reasons is to prevent the appellate courts from having to speculate as to the exact nature of what has previously transpired.

We therefore find that the contempt proceedings in this instance are not reviewable by appeal as is sought.

APPEAL DISMISSED.

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


author: WRIGHT, Presiding Judge.

text:
    BARRON-LEGGETT ELECTRIC, INC. v. DEPARTMENT OF REVENUE of the State of Alabama.
    Civ. 713.
    Court of Civil Appeals of Alabama.
    May 19, 1976.
    Rehearing Denied June 16, 1976.

      Augusta E. Wilson, Mobile, Roland J. Mestayer, Jr., Pascagoula, Miss., for appellant.
    William J. Baxley, Atty. Gen., Willard W. Livingston, Counsel, Dept, of Revenue, and Asst. Atty. Gen., Philip C. Davis, Asst. Counsel, Dept, of Revenue and Asst. Atty. Gen., for appellee.
   WRIGHT, Presiding Judge.

This is an appeal from a judgment in circuit court sustaining an assessment of taxes by the State of Alabama under Title 51, Sec. 596(1), Code of Alabama (1940), known as Highway Contractors Gross Receipts Tax.

The pertinent part of the statute is as follows:

“(1) There is hereby levied ... a privilege or license tax ... as follows:
“Upon every person, firm or corporation engaged ... in the business of contracting to construct, reconstruct or build any public highway, road, bridge, or street, an amount equal to five percent (5%) of the gross receipts of such business. .
“(4) The taxes levied herein shall not apply ... to contracts made by the contractor with any incorporated city or town nor to any contracts to which any county of the state of Alabama is a party.”

Taxpayer is Barron-Leggett Electric, Inc. of Pascagoula, Mississippi, hereafter called Barron. On August 1, 1972, Barron was awarded a contract by the Alabama Highway Department to install the lighting system on and along portions of Interstate Highways 65 and 10 in Mobile County. On May 1, 1973, the Department of Revenue entered an assessment, for tax against Barron upon the gross proceeds received from the contract. That assessment proceeded to trial in circuit court and is here on appeal by Barron.

Primary issues presented on appeal are: (1) Is the statute constitutional and, (2) Does the contract of Barron fall within the purview of the statute?

Barron contends for unconstitutionality of the statute in four areas. It says there is absence of due process because the provisions are uncertain and indefinite when applied to include electrical contractors. The argument upon this contention is brief and will be answered negatively in our discussion of the applicability of the statute to Barron.

Barron contends the statute does not meet constitutional tests of equality and uniformity and is a discriminatory classification. We do not agree. The basic premise of Barron’s argument is that the tax as applied is charged only to electrical contractors who engage in highway construction and not to all electrical contractors as a class. Such premise may be true, but it fails to recognize the proper classification taxed. The tax falls as a class upon contractors who engage in construction of a public highway, road, bridge or street and not upon a particular area of art, skill or expertise. The privilege taxed is that of engaging or participating in highway construction, not the privilege of engaging in electrical, landscaping, excavating, site preparation, bridge, engineering, paving, or other phases of contracting which may be related to highway construction. Whatever class of contractor one may fall in, it is only when engaged in highway construction that the burden of the tax applies. It falls equally and uniformly upon all who become so engaged.

“The legislature has the broadest range and powers in establishing classifications or subclassifications for the purpose of license and excise taxes. State v. Pure Oil Co., 256 Ala. 534, 55 So.2d 843. Further the legislature in classifying subjects for taxation is not required to state the grounds for classification. . . .”
“Furthermore particular privileges, occupations, classes or subclasses of businesses may be licensed and taxed and other privileges, occupations or businesses need not be included and can be entirely exempt therefrom. . . .” Haden v. Watson, 270 Ala. 277, 117 So.2d 694.

Within the last 20 years, the construction of public highways has become one of the great industries of the economy. It requires contribution from varied and prolix fields of art and skill. It has consumed billions of tax dollars and presumably resulted in profit to the artisans involved. We can conceive of no more prominent and reasonable classification for placing a privilege tax upon those participating in the windfall. Taxation of such a privilege is not arbitrary or unreasonable and does not violate constitutional rules of equality and-uniformity. Carmichael v. Southern Coal & Coke Co., 301 U.S. 495, 57 S.Ct. 868, 81 L.Ed. 1245.

Barron contends that because it is. taxed when constructing highway light systems while other electrical contractors are not taxed when constructing light systems other than on highways results in discrimination. Such argument again refuses to recognize the proper classification of the statute. Barron is not taxed for the privilege of being an electrical contractor but for the privilege of constructing public highways. All electrical contractors constructing lighting systems on highways are taxed without discrimination. A license or privilege tax upon certain businesses or certain methods of doing business is not uncommon and has been upheld as a valid exercise of the legislative power to tax and classify. Haden v. Watson, supra.

The argument of Barron that the provisions of the statute exempting construction contracts made with any city, town or county is discriminatory against the federal government is not well taken. The ruling of the trial court that such exemption is unconstitutional is erroneous. We are compelled to hold the judgment of the trial court in such respect erroneous even though the State did not appeal. Such necessity arises because we are convinced, as contended by Barron, that to strike the exemption thereby imposing the tax upon street construction contracts of cities, towns and counties, would result in imposing a tax by judicial action. We are further convinced that the exemption is not severable from the statute. It is evident that the legislature did not intend that the contracts of cities, towns and counties be burdened with the tax. Severance of legal provisions of a statute from those which are illegal, in order to save the legal may be done only when it is plain that the legislature would have enacted the statute with the illegal provisions removed. Howard v. Illinois Central R. Co., 207 U.S. 463, 28 S.Ct. 141, 52 L.Ed. 297; City of Mobile v. Salter, 287 Ala. 660, 255 So.2d 5.

The effect of eliminating the exemption in this statute presents a substantial question of whether the legislature would have enacted the statute without the exemption.

Barron having presented the error of the trial court in striking the exemption and saving the statute by severance, we hold the action of the court to have been in error.

If the exemption is restored, Barron then argues that it renders the whole statute unconstitutional in that it is discriminatory against those who contract with the federal government.

This argument is premised upon the contention that the construction of highways by the state is largely financed by funds derived from the federal government, while the construction of roads and streets by cities, towns and counties are not so financed.

The argument must fail. Conceding that it is common knowledge that most of the money involved in the construction of interstate highway by the state is contributed by the federal government, such contribution does not prevent taxation by the state of the funds derived from the contract in the hands of a contractor. Smith v. Davis, 323 U.S. 111, 89 L.Ed. 107, 65 S.Ct. 157; McPheeter v. City of Auburn, 288 Ala. 286, 259 So.2d 833.

Barron submits that exempting the contracts of cities and counties implies that the purpose of the legislature was to tax only contractors paid primarily with federal funds. That position is mere conjecture and supposition. The court has judicial knowledge that substantial funds for construction of capital improvements in state, city and county are derived from some federal source. To prohibit taxation of monies derived from such projects after it comes into possession of the contractor would narrowly limit the taxing process.

The power of the legislature to exempt from taxation unless restricted by express constitutional provisions is as broad as its power to tax. Carmichael v. Southern Coal & Coke Co., supra. The legislature is free to exempt according to its views of public policy and expediency. Rogers v. Hennepin County, 240 U.S. 184, 36 S.Ct. 265, 60 L.Ed. 594. The exemption from the burden of the tax given by the statute to contractors building or repairing roads and streets of cities and counties has a clear and obvious purpose of public policy. We would expect many of the same contractors who must pay the tax upon state contracts are exempt therefrom when participating in the relatively smaller contracts with cities and counties. In such instances they benefit from the exemption.

Barron submits that as an electrical contractor building lighting systems for a highway it does not come within the statute. We cannot agree.

The terms of a statute are to be given their usual and ordinary meaning as accepted by the public or as used in the trade or profession to which the statute applies. The instant statute was enacted by the legislature in 1963 and amended in 1971. It was passed by the legislature at a time when modern methods of highway construction were well known to the legislature and the public generally. It was passed at a time when it was well known that highway construction involved the use of the combined special skills of many contractors. The only definition of “highway” in the Code of Alabama is found in Title 36, Sec. 1(12) and is as follows:

“(12) ‘Highway.’ Every way or place of whatever nature open to the use of the public as a matter of right for purposes of vehicular travel. The term ‘highway’ shall include the full width of the right of way of any public road, street, avenue, alley, or boulevard, bridge, viaduct or trestle, and the approaches thereto, within the limits of the state of Alabama. The term ‘highway’ shall not be deemed to include a roadway or driveway upon grounds owned by private persons.”

Every contract let in the process of building a highway according to the design and specifications as prepared by the highway department would appear to be part of the total purpose of highway construction. If it were the practice to let a total contract to one contractor for a “Lock & Key” job, could it logically be contended that the tax would not apply to the construction of the lights or to the erection of signs or traffic signals? We do not think so. The intent of the legislature was clearly not so limited. One need only observe the tremendous undertaking of cutting a right of way through the mountains and valleys of Alabama to realize that the cost of construction and paving of only the traveled portion of the highway is of relative insignificance. The cost of installation of the lighting system for an urban interstate highway is of small significance when related to the whole, but it is without question a part of the total planned construction. There is no ambiguity in the terms of the statute in light of common understanding of the meaning of “highway.” There certainly is no ambiguity to a contractor who views the overall construction plans and specifications and enters a bid for a portion thereof.

We affirm the judgment of the trial court that the statute is applicable to Barron and that it is constitutional. .We reverse the judgment insofar as it strikes therefrom the exemption as discriminatory.

AFFIRMED IN PART, REVERSED IN PART AND RENDERED.

BRADLEY and HOLMES, JJ., concur.


author: ALMON, Justice.

text:
    In re BARRON-LEGGETT ELECTRIC, INC. v. DEPARTMENT OF REVENUE of the State of Alabama. Ex parte Barron-Leggett Electric, Inc.
    SC 1938.
    Supreme Court of Alabama.
    Sept. 3, 1976.
    Augusta E. Wilson, Mobile, Roland J. Mestayer, Jr., Pascagoula, Miss., for petitioner.
    No appearance for the State.
   ALMON, Justice.

Petition of Barron-Leggett Electric, Inc. for Certiorari to the Court of Civil Appeals to review and revise the judgment and decision of that Court in Barron-Leggett Electric, Inc. v. Department of Revenue of the State of Alabama, Ala.App., 336 So.2d 1124.

WRIT DENIED.

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


author: HATCHETT, Justice.

text:
    Dianne Taylor SISSON, Petitioner, v. John P. SISSON, Respondent.
    No. 47576.
    Supreme Court of Florida.
    June 30, 1976.
    Argued May 6, 1976.
    Rehearing Denied Oct. 5, 1976.
    M. J. Menge, Shell, Fleming, Davis & Menge, Pensacola, for petitioner.
    Richard P. Warfield, • Levin, Warfield, Middlebrooks, Graff, Mabie, Rosenbloum & Magie, Pensacola, for respondent.
   HATCHETT, Justice.

The Sissons were married in December, 1966, and a daughter, Stephanie, was born of the marriage. The marriage ended with entry of judgment of dissolution in June, 1973, which judgment was appealed to the District Court of Appeal, First District. That court overturned the trial court’s alimony award, 311 So.2d 799, one judge dissenting, at 801, and Dianne Sisson petitioned this Court for a writ of certiorari, citing for conflict the decisions in Keller v. Keller, 308 So.2d 106 (Fla.1974) (reh. den. 1975); Firestone v. Firestone, 263 So.2d 223 (Fla.1972); Baker v. Baker, 299 So.2d 138 (Fla.App.3d 1974); Schultz v. Schultz, 290 So.2d 146 (Fla.App.2d 1974); Langston v. Langston, 257 So.2d 625 (Fla.App.3d 1972); Zohlman v. Zohlman, 235 So.2d 532 (Fla.App.3d 1970) and Sommers v. Sommers, 183 So.2d 744 (Fla.App.3d 1966). We grant certiorari and quash the decision below, with directions that the judgment of the trial court be reinstated.

Application of the rules for determining alimony is primarily the responsibility of the trial court, which is acquainted first hand with the evidence, and is also in a position to know local economic conditions. No question has been raised as to any other aspect of the dissolution judgment.

In order to disturb an allowance of lump sum alimony, the appellant is required, on appeal, to clearly show the trial court abused its discretion in the amount of the award.
Langston v. Langston, 257 So.2d 625 (Fla.App.3d 1972)

Here, as in Langston v. Langston supra, “[n]o abuse of such discretion has been clearly shown in this appeal.” Id. In the absence of a clear showing of abuse of discretion, the judgment of the trial court should have been upheld, regardless of the merits of the alimony award, considered de novo.

At the time the trial court adjudged the marriage dissolved, respondent husband was a state employee earning an annual salary of $21,000.00, and had substantial assets, including property given to him by his parents, which was valued at approximately $218,000.00. Petitioner wife was unemployed at the time of the dissolution and had been unemployed for three years, although she is trained as a physical therapist. The only job possibility discussed at the hearing would have yielded Mrs. Sisson net monthly income of about $480.00. Her principal asset was a savings account in the amount of $1,600.00. She put on proof from which the trial judge could have concluded that her monthly expenses would amount to $1,270.00.

The trial judge awarded Mrs. Sisson half an income tax refund check (approximately $800.00), certain personal property (an 11 year old car, an 18 year old refrigerator, various other appliances) and, as lump sum alimony, $30,000.00. In reversing the alimony award, the majority below concluded that Mrs. Sisson did not need rehabilitation since she was already trained as a physical therapist.

Whether or not alimony is characterized as rehabilitative, the principal questions are the need of the spouse seeking alimony and the ability of the other spouse to pay. The general rule, where the husband is better off financially, was stated in Firestone v. Firestone, 263 So.2d 223 (Fla.1972), a case which the District Court majority cited in its opinion:

[T]he primary criteria to be used in establishing the amount of alimony [are] the husband’s ability to pay and the needs of the wife, taking into consideration the standard of living shared by the parties to the marriage. Chastain v. Chastain, Fla. 1954, 73 So.2d 66; Schiff v. Schiff, Fla. 1951, 54 So.2d 36; Klein v. Klein, Fla.App.1960, 122 So.2d 205; Peteler v. Peteler, Fla.App. 1962, 145 So.2d 291; Sommers v. Sommers, Fla.App.1966, 183 So.2d 744; Kaufman v. Kaufman, Fla. 1953, 63 So.2d 196; Astor v. Astor, Fla.1956, 89 So.2d 645. But see also: Kahn v. Kahn, Fla., 78 So.2d 367, for a limitation on the amount of alimony award.

At 226.

When the wife is seeking alimony, determining the husband’s ability to pay involves more than “the husband’s income alone. . . . Among other things, consideration should be given to the husband’s capital assets.” Id.

With increasing opportunities for employment available to women, it may well be that wives today are generally less dependent financially on their husbands than their mothers were, and so less often in need of alimony if the marriage is dissolved. But care must be taken to avoid confusing the general with the specific and mistaking the promise of the future for the reality of the present:

We are not unmindful that Florida has gone to the no-fault divorce and that today’s woman should be considered capable of earning a living equivalent to her male counterpart. Nevertheless, until the realities catch up with this laudable objective, we think that a divorced wife faced with an everyday concern about the wherewithal to put bread on the table should not be penalized where her former spouse has the ability to help her provide it. Schultz v. Schultz, 290 So.2d 146, 147-8 (Fla.App.2d 1974)

The disparity between the financial condition of husband and wife in the present case is much more pronounced than in Schultz v. Schultz, Sitpra, where the trial court awarded alimony and the district court not only upheld the award but increased it. In the present case, the evidence showed, as Judge McCord said in dissenting below, that petitioner “is unemployed and is experiencing difficulty in finding employment because of the current economic recession . . . [while respondent] can well afford to give financial assistance to' [petitioner]”. At 801.

The decision of the District Court of Appeal, First District, is quashed, and the case is remanded with directions that the judgment of the trial court be reinstated.

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


author: By THE COURT:

text:
    STATE of Florida, Petitioner, v. Mary JOHNSON and Robert Thompson, Respondents.
    No. 47920.
    Supremo Court of Florida.
    July 8, 1976.
    Rehearing Denied Sept. 30, 1976.
    Writ of Certiorari to the District Court of Appeal, Second District.
    Robert L. Shevin, Atty. Gen., and Robert J. Landry, Asst. Atty. Gen., for petitioner.
    Jack O. Johnson, Public Defender; and Robert H. Grizzard, II, and Dennis P. Ma-loney, Asst. Public Defenders, for respondents.
   By THE COURT:

That portion of the decision of the Second District Court of Appeal reported at 314 So.2d 791 which vacates respondent’s sentence for robbery is reversed, and the case is remanded with instructions to reinstate the robbery sentence imposed upon the defendant by the trial court. Slater v. State, 316 So.2d 539 (Fla.1975).

OVERTON, C. J., and ROBERTS, ENGLAND and SUNDBERG, JJ., concur.

ADKINS, BOYD and HATCHETT, JJ., dissent.


author: OVERTON, Chief Justice.

text:
    BONDED TRANSPORTATION, INC., a corporation, Petitioner, v. Ebbin A. LEE and Joyce Jacquelyn Lee, husband and wife, Respondents.
    No. 47066.
    Supreme Court of Florida.
    July 8, 1976.
    Rehearing Denied Sept. 30, 1976.
    Donald H. Partington, Clark & Parting-ton, Pensacola, for petitioner.
    Richard P. Warfield, Levin, Warfield, Middlebrooks, Graff, Mabie, Rosenbloum & Magie, Pensacola, for respondents.
   OVERTON, Chief Justice.

This is before us on petition for writ of certiorari to the First District Court of Appeal from its decision reported at 308 So.2d 157 (Fla.App. 1st, 1975). That decision conflicts with Hoffman v. Jones, 280 So.2d 431 (Fla.1973), and CNA Insurance v. Minton, 334 So.2d 257 (Fla.1976). We have jurisdiction.

The First District, relying on its previous decision in Fitzsimmons v. City of Pensacola, 297 So.2d 107 (Fla.App. 1st, 1974), held the issue of comparative negligence to have been properly made a question for appellate review where it was raised for the first time in appellate briefs. CNA Insurance v. Minton, supra, dictates the opposite result:

“The rule could not have been properly or appropriately made a question of review unless the applicability of the rule had been raised at the trial level before or during the trial thereof.” Id. at 258.

Likewise, initial argument for application of comparative negligence on motion for new trial, as the parties here allege occurred, will not support application of the rule.

The decision of the First District is quashed, and the cause is remanded for proceedings consistent herewith. Fitzsim-mons v. City of Pensacola, supra, is disapproved insofar as it conflicts with our decisions herein.

It is so ordered.

ROBERTS, ADKINS, ENGLAND, SUNDBERG and HATCHETT, JJ., concur.

BOYD, J., dissents.

      . Fla.Const. Art. V, § 3(b)(3) (1972).


author: PER CURIAM.

text:
    Vernon Ray COOPER, Appellant, v. STATE of Florida, Appellee.
    No. 45966.
    Supreme Court of Florida.
    July 8, 1976.
    Rehearing Denied Sept. 28, 1976.

      Richard W. Ervin, III, Public Defender, and Judith J. Dougherty, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Raymond L. Marky, Asst. Atty. Gen., for ap-pellee.
   PER CURIAM.

Vernon Cooper was convicted of the robbery of a grocery store in Pensacola and the first degree murder of Pensacola Deputy Sheriff Charles Wilkerson. He was sentenced to death by the trial judge following the jury’s advisory sentence of death. We have jurisdiction to review this case under Article V, § 3(b)(1) of the Florida Constitution.

FACTS

Cooper admitted at trial that he and one Steve Ellis robbed the grocery store, and that as they were making their escape in Cooper’s black Camaro they were stopped by Deputy Wilkerson, who had stationed himself close to Interstate 10 in order to close off a possible escape route. There was conflicting testimony as to what then transpired. After being stopped, either Cooper or Ellis walked to Deputy Wilkerson’s patrol car and fired two shots into his head. He was killed instantly.

A prompt report of Wilkerson’s death caused officers Bates and Joy to begin patrolling Interstate 10. They observed and stopped the Camaro after it had crossed into Alabama. Ellis, who was driving, left the Camaro and approached Bates, who began to frisk him. Joy approached the Ca-maro, observed Cooper sitting in the passenger’s seat, and returned to his patrol car. While doing so, he heard a shotgun fired from inside the Camaro. At that moment Ellis pulled a gun on Bates, but Bates reacted faster and shot Ellis fatally. Cooper then drove off in the Camaro. Both the officers fired several shots and gave chase, but Cooper escaped into the countyside. Cooper was captured the next day, with a shotgun in his possession, after a manhunt by over four hundred persons.

ALLEGED TRIAL ERRORS

Before us Cooper has argued that at least -seventeen errors marred his trial. Many of these alleged errors are devoid of merit and deserve only passing discussion. A few require more extensive analysis.

1. Inadmissible statements. Cooper raises a threshold issue of whether he was properly advised of his constitutional rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and whether a subsequent statement was voluntarily given. The arresting officer, acting to insure Cooper’s safety, placed him in a squad car and informed him of his constitutional rights. Cooper then acknowledged his understanding of his rights and was taken to a temporary headquarters set up by the police. He was given a refreshment, and Alabama officers entered the car. He was then questioned for a short time, at which time he told the same story he would later tell at trial. Although there were some members of the search party in the area around the car at this time, they were orderly and were not shown to have made threats of any sort. The trial judge made a thorough inquiry into these matters, and he concluded that the warning was understood and the statements voluntarily given.

We find no reason to reverse the trial judge’s determination. The factual circumstances were not inherently intimidating. The trial judge properly inquired to determine whether Cooper was coherent and aware of what he was doing. The state had the burden to prove voluntariness by a preponderance of the evidence, and the trial judge did not err in finding that the burden was carried.

2. State violations of criminal rules. Cooper seeks a reversal of his conviction on the ground that the state violated the rules of criminal discovery. On Wednesday, June 12, 1974, five days prior to trial, the state provided defense counsel with the names of seven witnesses and informed him of the existence of a four-hour tape recording of police messages which had been recorded by a private citizen tuned in to the broadcast frequency of the sheriff’s office. The state’s attorney had learned of these witnesses and the tape only a few days earlier. Defense counsel moved for a continuance in order to conduct discovery and study any new evidence. A hearing was held, after which the motion was denied with leave to ask for reconsideration should any relevant new matters be uncovered. On the morning of Monday, June 17, 1974, defense counsel renewed his motion for a continuance. Again a hearing was held and the motion was denied. At both hearings it was uncontroverted that the state’s attorney supplied defense counsel with the new witnesses’ names soon after he learned of them, and that all but one were in possession of information which was identical to that known by other, previously identified witnesses. Only one of these witnesses was called to the stand during the trial, and he only testified for a few minutes.

The only new evidence of any significance to emerge from these late revelations was the tape, which served to place in chronological order the various pieces of other evidence. Defense counsel failed to complete his review of the tape prior to trial due to his unwillingness to retain possession of the tape out of the presence of the state attorney, fearing the consequence of possible damage to the tape.

As the trial date nears, a prosecutor has the duty under Rule 3.220(f) to “promptly disclose” previously unidentified witnesses and material. A delay of days might be sufficiently prompt where several months remain before trial, but where a complex trial involving a human’s life was scheduled to begin in one week, immediate disclosure is dictated by the Rule. Nonetheless, failure to obey the Rule should be remedied in a manner consistent with the seriousness of the breach. Relevant evidence should not be excluded from the jury unless no other remedy suffices. Here the trial judge properly denied the initial request to postpone the trial on the ground that any prejudice could be best assayed after defense counsel had an opportunity to depose the witnesses. By directing the state’s attorney to act speedily in making these witnesses available, the trial judge did all that was reasonably required at that time. When he later reconsidered the motion, the witnesses’ testimony was found to be cumulative and non-prejudicial. The only hardship then shown by the defense was the failure to have listened to all of the tape, causing an increased burden on defense counsel during the week of the trial. The trial judge concluded that there was no prejudice to Cooper’s defense, and that the increased workload was in part the result of a tactical decision by the defense rather than the state’s breach of the rules.

Our rules were not designed to eliminate the onerous burdens of trial practice. Their purpose was to avail the defense of evidence known to the state so that convictions would not be obtained by the suppression of evidence favorable to a defendant, or by surprise tactics in the courtroom. While death penalty cases command our closest scrutiny, it is still the obligation of an appellate court to review with caution the exercise of experienced discretion by a trial judge in matters such as a motion for a continuance. We cannot say that the judge’s discretion was palpably abused in this case.

On the third day of trial, another breach of Rule 3.220(f) became apparent when the state announced that a ballistics expert had been inadvertently left off its list of witnesses. In accordance with our holding in Richardson v. State, 246 So.2d 771 (Fla.1971), the trial judge held a lengthy hearing to determine whether the defense had been unfairly surprised. He ascertained that there was no surprise. The defense had learned that a ballistics test was being performed as early as February 1974, in the course of deposing a witness. During March 1974, defense counsel’s investigator spoke to the state’s expert and requested that a copy of any ballistics report be sent to defense counsel. The investigator customarily placed memoranda summarizing his activities in counsel’s case file, and there was no showing that this did not occur in this instance. For this reason, defense counsel should at least have been aware that a request for any ballistics report had been made and that the investigator had been in contact with this particular expert. Additionally, the state attorney informed the defense one month before trial that the gun which had been in Ellis’ possession when he was apprehended and fatally shot was not the same gun which had fired the fatal shots at Deputy Wilkerson. This fact was the substance of the expert’s testimony at trial. It must have been obvious to defense counsel that a ballistics report had been received by the state, and that the state was going to attempt to prove that Cooper himself fired the fatal shots, rather than relying solely upon a felony-murder theory.

Once again the state may have violated a Rule. But when that fact was discovered, the trial judge properly denied the request to exclude the witness or to recess the trial to enable defense counsel to obtain a ballistics expert of his own. Seeking a less drastic remedy, he recessed the court to allow the defense counsel to depose the expert before he was called to the stand. Since the defense should have been aware of the state’s proposed proof by reason of information already known to it, the trial judge acted within the scope of his discretion to remedy whatever prejudice might have resulted from the state’s breach.

ALLEGED SENTENCING ERRORS

Cooper attacks the sentencing aspect of his trial on several grounds.

1. Proffers in mitigation. His first alleged error was the trial court’s refusing, on grounds of relevance, proffered testimony concerning Cooper’s employment prior to the crime, Ellis’ reputation for violence, and Cooper’s attempts to avoid Ellis on some prior occasions. Defense counsel sought to have this testimony admitted to show that Ellis had probably fired the fatal shots, and that Cooper was not beyond rehabilitation. While the trial court rejected these proffers, he did permit great latitude in the admission of evidence, some questionably probative or relevant, regarding Cooper’s character and his general reputation for veracity and non-violence.

We held in State v. Dixon that the rules of evidence are to be relaxed in the sentencing hearing, but that evidence bearing no relevance to the issues was to be excluded. The sole issue in a sentencing hearing under Section 921.141, Florida Statutes (1975), is to examine in each case the itemized aggravating and mitigating circumstances. Evidence concerning other matters have no place in that proceeding any more than purely speculative matters calculated to influence a sentence through emotional appeal. Such evidence threatens the proceeding with the undisciplined discretion condemned in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972).

Testimony regarding Ellis’ temperament and Cooper’s attempts to avoid Ellis on a few occasions reflected events and opinions too removed from the planning of the robbery and commission of the murder for there to be any rational basis on which the jury could conclude that Cooper acted under Ellis’ domination. Similarly, those facts could have no probative bearing on whether Cooper or Ellis fired the fatal shots.

As to proffered testimony concerning Cooper’s prior employment, it is argued that this evidence would tend to show that Cooper was not beyond rehabilitation. Obviously, an ability to perform gainful work is generally a prerequisite to the reformation of a criminal life, but an equally valid fact of life is that employment is not a guarantee that one will be law-abiding. Cooper has shown that by his conduct here. In any event, the Legislature chose to list the mitigating circumstances which it judged to be reliable for determining the appropriateness of a death penalty for “the most aggravated and unmitigated of serious crimes,” and we are not free to expand the list.

2. Instructions as to aggravating circumstances. The trial judge instructed the jury to consider whether this murder was “especially heinous, atrocious or cruel,” an aggravating circumstance listed in Section 921.141(5)(h). Cooper contends this was improper because, as a matter of law, the murder was not “especially heinous”. While we agree that Deputy Wilkerson was not murdered in the “especially heinous” manner contemplated by the statute, we do not believe it was error for the trial judge to instruct the jury on every aggravating and mitigating circumstance listed in Section 921.141, in the absence of trial counsels’ acquiescence to the omission of one or more circumstances.

The Legislature intended that the trial judge determine the sentence with advice and guidance provided by a jury, the one institution in the system of Anglo-American jurisprudence most honored for fair determinations of questions decided by balancing opposing factors. If the advisory function were to be limited initially because the jury could only consider those mitigating and aggravating circumstances which the trial judge decided to be appropriate in a particular case, the statutory scheme would be distorted. The jury’s advice would be preconditioned by the judge’s view of what they were allowed to know. The judge should not in any manner inject his preliminary views of the proper sentence into the jurors’ deliberations, for after the jury has rendered its advisory sentence the judge has the affirmative duty to decide the sentence in the context of his exposure to the law and his practical experience. As we acknowledged in Dixon, “[t]o a layman, no capital crime might appear to be less than heinous, but a trial judge with experience in the facts of criminality” can serve as a buffer where the jury allows emotion to override the duty of a deliberate determination.

Of course, a proper instruction defining the terms “especially heinous, atrocious or cruel,” or any other listed circumstance, must be given. Here the trial judge read the jury the interpretation of that term which we gave in Dixon. No more was required.

3. Weighing of factors. The final point raised is whether the death penalty was the proper sentence. The trial judge found there to be four aggravating circumstances :

“1. The defendant was previously convicted of two felonies involving the use or threat or violence to persons; namely, armed robbery.
2. The murder was committed while the defendant was in the perpetration of a robbery and in flight after committing a robbery.
3. The murder was committed for the purpose of avoiding or preventing the lawful arrest of the defendant.
4. The capital felony was especially heinous, atrocious and cruel.”

The defense had argued in mitigation that the evidence showed Cooper played a relatively minor role in the murder. As the defense interprets the evidence, Ellis fired the fatal shots and Cooper was guilty of only felony-murder. The trial judge believed Cooper fired the fatal shots and found there to be no mitigating circumstance.

In argument here on review of the judge’s sentence, Cooper contends that the murder was not “especially heinous” as a matter of law and that the trial judge ignored the evidence in finding that Cooper fired the fatal shots. The state responds with the contention that this murder was especially atrocious because it was unnecessary to kill Deputy Wilkerson, since escape was otherwise possible.

While we agree with the state that this execution-type murder may have been unnecessary, we agree with Cooper that the standard of an aggravating circumstance is whether the horror of murder is “accompanied by such additional acts as to set the crime apart from the norm the conscienceless or pitiless crime which is unnecessarily torturous to the victim.” This murder was not in that category. Deputy Wilkerson was killed instantaneously and painlessly, without additional acts which make the killing “heinous” within the statutorily-announced “aggravating” circumstance.

We have closely scrutinized the record to determine whether it supports the trial judge’s conclusion that Cooper fired the fatal shot. There was conflicting testimony on this point. No one saw the actual shooting except, of course, Cooper. One witness standing about 100 feet from the scene of the crime testified that he saw a man of Cooper’s height and build run from the driver’s side of the patrol car to the driver’s side of the Camaro, although the scene was illuminated only by the headlights of the two cars. He could not say whether the man entered the driver’s side of the Camaro. Another witness, who was driving past the scene, saw a man coming from the direction of the patrol car enter the passenger’s side of the Camaro. A third witness, who had been standing about 100 yards away, testified to a belief that the sound of a slamming car door had come from the driver’s side of the Camaro. At no time was he able to see anyone in the vicinity of the cars, however, and a state objection to this testimony as mere opinion was sustained. Cooper testified that Ellis followed the Deputy to the patrol car, fired two shots, returned to the Cama-ro, and drove off. Cooper said he was in the passenger’s seat, where he was later found, at all relevant times.

Cooper suggests that the. trial judge erred in excluding testimony concerning the source oft the sound of the slamming door. While opinions on the direction of a sound are usually admissible because there is no satisfactory way such observations can be otherwise reproduced in the courtroom, we have recognized that difficult questions Concerning opinion evidence can arise which can only be controlled by the discretion of the trial judge. In cases where the direction of a sound was at issue, lay opinion has been allowed into evidence where there was some basis to conclude that the witnesses’ conclusions were not pure speculation. The issue here was not the general direction from which a sound came, but the pinpointing of a sound to a precise source by a person blinded by darkness and standing 100 yards away. The speculative quality of a conclusion based on the human sense of hearing in such a situation is too great, and the trial judge properly excluded it. In any event, we cannot find that exclusion prejudicial in light of other events at the trial. After the trial judge had sustained the state’s objection, counsel for the state extensively questioned the witness on cross-examination as to his belief that the driver’s door had been slammed. Defense counsel continued the subject on redirect examination, and it was developed further on recross-examination. Whatever the technical effect of sustaining an objection, it is clear that the jury well knew all facets of this witness’ observations.

Since we have concluded that the proper evidence was considered by the trial court in determining whether Cooper fired the fatal shots, we have no basis to reverse his conclusions. He heard the testimony and observed the witnesses. The record supports his conclusion.

Imposition of the death penalty is never pleasant. Here it cannot be avoided. The statute demands a decision from this Court, and we are bound to follow the law. In this case there were three aggravating and no mitigating circumstances. There is nO' alternative to the death penalty.

Accordingly, the judgment of guilty of murder in the first degree and robbery is affirmed, and the sentence of death is approved.

It is so ordered.

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

      . Cooper argues as a matter of law that Section 921.141, Fla.Stat. (1975), authorizing the death penalty in certain cases, is unconstitutional. A majority of the Court recently considered and rejected this contention, and we are bound by those decisions. Alford v. State, 307 So.2d 433 (Fla.1975); State v. Dixon, 283 So.2d 1 (Fla.1973). Cooper argues from the record that the trial judge erred in refusing (i) to sever the charges of robbery and murder, (ii) to grant a change in venue, (iii) to refuse to appoint more than two psychiatrists to examine him for competency to stand trial, (iv) to suppress an allegedly coerced confession which was never introduced into evidence, (v) to exclude alleged irrelevant evidence found in Cooper’s automobile, (vi) to not extend the time of trial for a few minutes past 5:00 P.M. on one day of this lengthy proceeding, (vii) to change the sequence of closing arguments from that which is customary in Florida when Crim.Proc. Rule 3.250 does not apply, and (viii) to clarify jury instructions distinguishing between first and second degree felony murder. These rulings were all proper in the circumstances of this case. See State v. Dixon, above, as to jury instructions ; Murphy v. Florida, 421 U.S. 794, 95 S.Ct. 2031, 44 L.Ed.2d 589, 43 L.W. 4730 (1975), as to venue, and Fla.Crim.Proc. Rule 3.210(a), as to expert testimony where there is no reason to question competency. The trial judge did not abuse his discretion in refusing to grant severance, since a conviction for felony-murder was possible. Campbell v. State, 227 So.2d 873 (Fla.1969). As to other points, the record shows no prejudice which would warrant a reversal of Cooper’s conviction.

      . See, Paramore v. State, 229 So.2d 855 (Fla.1969).

      . Lego v. Twomey, 404 U.S. 477, 92 S.Ct. 619, 30 L.Ed.2d 618 (1972); MeDole v. State, 283 So.2d 553 (Fla.1973).

      . Williams v. State, 264 So.2d 106 (4th DCA 1972).

      . Andrews v. State, 134 Fla. 450, 184 So. 88 (1938).

      . 283 So.2d 1, 7 (Fla.1973). The general standard of relevance is explained in Atlantic Coast Line Ry. v. Campbell, 104 Fla. 274, 139 So. 886 (1932).

      . The legislative intent to avoid condemned arbitrariness pervades the statute. Section 921.141(2) requires the jury to render its advisory sentence ‘‘upon the following mat-' ters : (a) Whether sufficient aggravating circumstances exist os enumerated in subsection (6); (b) Whether sufficient mitigating circumstances exist as enumerated in subsection (1), which outweigh the aggravating circumstances found to exist . . . (emphasis added). This limitation is repeated in Section 921.141(3), governing the trial court’s decision on the penalty. Both sections 921.-141(6) and 921.141(7) begin with words of mandatory limitation. This may appear to be narrowly harsh, but under Furman undisciplined discretion is abhorrent whether operating for or against the death penalty.

        . State v. Dixon, 283 So.2d 1, 7 (Fla.1973).

      . State v. Dixon, above, n. 8, at 9.

      . State v. Dixon, above n. 8, at 9.

      . See, Alford v. State, 47 Fla. 1, 8, 36 So. 436, 438 (1904) : VII J. Wigmore, Evidence § 1977 (1940).

      . Kersey v. State, 73 Fla. 832, 74 So. 983 (1917).

      . See e. g., Hornsby v. Commonwealth, 305 Ky. 747, 205 S.W.2d 338 (1947); Smith v. State, 182 Md. 176, 32 A.2d 863 (1943); State v. Shinborn, 46 N.H. 497 (1866).

      . Our disposition of this issue renders it unnecessary to consider whether a mitigating circumstance exists in a felony-murder situation solely because the defendant did not perform the act of killing.


text:
    Douglas Ray MEEKS, Appellant, v. STATE of Florida, Appellee.
    No. 48080.
    Supreme Court of Florida.
    July 21, 1976.
    Rehearing Denied Sept. 30, 1976.
    John F. Howard, Fort Lauderdale, for appellant.
    Robert L. Shevin, Atty. Gen., and Wallace E. Allbritton, Asst. Atty. Gen., for ap-pellee.
   PER CURIAM.

This cause is before us on direct appeal from a conviction of murder in the first degree and sentence of death. We have jurisdiction pursuant to Article V, Section 3(b)(1), Florida Constitution.

Appellant was indicted for first degree murder in that while engaging in the perpetration of a robbery, he did murder one Chevis Thompson, stabbing her with a knife, inflicting mortal wounds from which she died. The jury returned a verdict of guilty of murder in the first degree and after a separate sentencing proceeding, recommended the death penalty. The trial judge, specifying in detail the aggravating and mitigating circumstances, agreed that the death sentence was appropriate.

The trial judge’s written findings in support of the death sentence reflect, as follows:

“This Court finds that the facts of this case do not support the aggravating circumstances in Fla.Stat. 921.141(6)[(5)], subsections (a) and (c), in that this capital felony was not committed by a person under sentence of imprisonment, nor did the defendant knowingly create a great risk of death to many persons.
“As an aggravating circumstance, the Court finds that the defendant had previously been convicted of a capital felony Fla.Stat. 921.141(6)[(5)](b). The Court finds as an aggravating circumstance, that the capital felony, the murder of Chevis Thompson, was committed as a part of another dangerous and violent felony, the robbery of Chevis Thompson, and in flight after committing that felony. Fla.Stat. 921.141(6)[(5)](d).
“The Court also finds, as an aggravating circumstance, that the capital felony was committed with the motive of avoiding and preventing arrest, was committed for pecuniary gain and to hinder the enforcement of laws. Fla.Stat. 921.-141(6)[(5)](e)(f)(g).
“Turning to mitigating circumstances, the Court finds that the defendant does have a prior significant history of criminal activity. Fla.Stat. 921.141(7)[(6)](a). This fact has been considered as not being a mitigating circumstance.
“Under Fla.Stat. 921.141(7)[(6)] subsections (b) and (f), the Court finds that the defendant was suffering from no extreme mental or emotional disturbance and that his capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was not substantially impaired.
“The defendant moved for appointment of psychiatrists to examine him to substantiate the insanity of the defendant at the time of the crime. Doctors Barnard and Carrera were appointed and reported the results of their examination. Their report is devoid of any evidence of mental or emotional disturbance of the defendant. The psychiatrists both conclude that the defendant was sane at the time of the examination and at the time of the offense.
“Further, the Court finds that the victim certainly was not a participant in nor consented to the criminal conduct. Fla. Stat. 921.141[(6)](e)(e). No mitigation exists under either of these subsections.
“Finally, the age of the defendant has been considered as required by Fla.Stat. 921.141(7)[(6)](g). The defendant is 21. The report of Doctor Barnard contained his medical judgment that the defendant was of dull-normal intelligence.
“The Court finds the combination of the defendant’s youthful age and his intelligence to be a mitigating factor.
“The Court, in the circumstances of this ease, deemed the requirement of CrPR 3.710 to be directory and not mandatory. Therefore, no pre-sentence report has been considered.
“Upon consideration, it was at the time of sentencing and is now, the inescapable conclusion of the undersigned that sufficient aggravating circumstances exist in the facts to justify the death penalty. The murder of the victim by the defendant was for the purpose of executing the victim to prevent her identifying the defendant, so that the defendant could flee after having committed robbery for pecuniary gain, and to prevent the lawful arrest of the defendant and thus this conscienceless murder was designed to hinder the enforcement of laws."

Motion for new trial was denied.

Appellant contends that the trial court erred in denying his motion for new trial because the State failed to prove corpus delicti of the crime committed and erred in not polling the jury individually on the recommended sentence of death. Having carefully examined the record before us, we find no merit to appellant’s points on appeal.

Relative to corpus delicti, appellant does not dispute the fact of death nor the identity of the deceased but rather contests the showing of the criminal agency of another, to-wit appellant, as the cause of death. We cannot agree. The evidence is clearly sufficient to establish that the death of the victim was caused by the criminal agency of another.

Appellant argues that, although his fingerprints were found on the cash register and although he had told another that he had killed the deceased victim because she caught him in the act of trying to get something out of the store, there is no testimony to the effect that there was a taking of money or other property by defendant through force, violence, assault or putting in fear. At most, contends appellant, the State proved an attempt to take the money.

Section 782.04(l)(a), Florida Statutes, provides:

“The unlawful killing of a human being, when perpetrated from a premeditated design to effect the death of the person killed or any human being, or when committed by a person engaged in the perpetration of, or in the attempt to perpetrate, any arson, involuntary sexual battery, robbery, burglary, kidnapping, aircraft piracy, or unlawful throwing, placing, or discharging of a destructive device or bomb, or which resulted from the unlawful distribution of heroin by a person 18 years of age or older and when such drug is proven to be the proximate cause of the death of the user, shall be murder in the first degree and shall constitute a capital felony, punishable as provided in s. 775.082.”

Appellee submits that in order to sustain a conviction under the felony-murder statute it is sufficient to show that the murder was committed by appellant in the attempt to commit the crime of robbery.

We find that there was competent and sufficient evidence admitted at trial to prove the felony-murder charge.

After the separate proceeding, the jury returned an advisory sentence recommending the death sentence — “A majority of the jury advise and recommend to the court that it impose the sentence of death on Douglas Ray Meeks, the Defendant.” At this point, defense counsel requested that jury be polled.as to the majority. The State objected to the individual polling of each juror as to his sentence recommendation. The court then inquired of the Foreman of the jury:

“State whether or not seven or more of the members of the jury concurred in the advisory sentence recommending the death penalty which has been published.”

The Foreman responded that “There was seven and more, your honor.” The court then inquired of the jury itself:

“Let me ask an additional question. Does any member of the jury disagree with what the Foreman of the jury, Mr. Morgan, has announced with respect to the fact that seven or more have concurred in the advisory sentence or do you agree that he has correctly stated the finding of the jury? No one disagrees with the statement of your Foreman, Mr. Morgan? Anything further?
Mr. Howard (Counsel for Defense): No Sir.”

We find no error in the trial court’s action relative to the above objection to the sentencing proceeding.

We have listened carefully to oral argument, examined and considered the record in light of the assignments of error and briefs filed, and pursuant to Rule 6.16(b), Florida Appellate Rules, we have also reviewed the evidence to determine whether the interests of justice require a new trial, with the result that we find no reversible error is made to appear and that the evidence in the record before us does not reveal that the ends of justice require that a new trial be awarded.

Weighing the aggravating and mitigating circumstances, the trial judge was warranted under the particular facts of this case in imposing the death penalty upon the appellant for the commission of this heinous crime. The judgment and sentence of the lower court are in accordance with the justice of the cause.

Accordingly, the judgment and sentence of the trial court are hereby affirmed.

It is so ordered.

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