author: LOTTINGER, Judge.

text:
    STATE of Louisiana in the Interest of Leander JONES.
    No. 11947.
    Court of Appeal of Louisiana, First Circuit.
    March 20, 1978.
    Aubert D. Talbot, Dist. Atty., Napoleon-ville, for the State of Louisiana, appellee.
    Phil Breaux, Breaux & Hornstein, St. Gabriel, for Leander Jones, appellant.
    Before LOTTINGER, EDWARDS and PONDER, JJ.
   LOTTINGER, Judge.

This is an appeal from a judgment committing the juvenile, Leander Jones, to the Louisiana Department of Corrections.

On November 3, 1977, a 5 year old girl was forced to perform unnatural sex acts at approximately 2:20 P.M. in the girls’ bathroom of Prairieville Elementary School. Leander Jones, a 13 year old youth, fitting the description given by the girl, was apprehended at approximately 5:00 P.M. and was orally given his Miranda Rights. He was interrogated until 6:30 P.M. during which time he gave an oral confession which was subsequently tape recorded. Leander signed a written waiver of his Miranda Rights prior to the taping of his confession. Leander’s mother arrived at about 6:30 P.M. and was informed of the statement given by Leander. She listened to his taped confession and signed the waiver of rights which had previously been signed by Leander.

The trial judge in his per curiam opinion dismissing the defendant’s motion to suppress found:

“In the Court’s view, the evidence submitted on the hearing of the motion to supress [sic] clearly supports the ruling of this Court. This evidence clearly shows that there were no threats, intimidations, duress, pressures or other actions on the part of the officers who handled the interrogation of the juvenile. The fact that he initally [sic] refused to give a statement attests to his understanding in this regard. He thereafter gave a statement and later affirmed it in the presence of his mother, who also signed the waiver of rights form.
“On the question of the juvenile’s mental capacity, the Court is convinced that based on the Court’s interrogation of the juvenile, his manner and demeanor at the hearing, the evidence as a whole, this juvenile possessed sufficient mental capacity to comprehend what he was doing and saying.”

The appellant argues that the trial court committed error in (1) refusing to grant the motion to suppress on behalf of the defendant, (2) finding that the State had met its burden of proof and (3) refusing to grant the defendant a new trial.

Based on the per curiam opinion of the trial judge and this court’s thorough reading of the record, it is evident that the defendant gave a voluntary confession after being apprised and comprehending his constitutional rights. In speaking on self-incriminating statements made by a juvenile, the United States Supreme Court in In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967) said:

“We conclude that the constitutional privilege against self-incrimination is applicable in the case of juveniles as it is with respect to adults. We appreciate that special problems may arise with respect to waiver of the privilege by or on behalf of children, and that there may well be some differences in technique— but not in principle — depending upon the age of the child and the presence and competence of parents. The participation of counsel will, of course, assist the police, Juvenile Courts and appellate tribunals in administering the privilege. If counsel was not present for some permissible reason when an admission was obtained, the greatest care must be taken to assure that the admission was voluntary, in the sense not only that it was not coerced or suggested, but also that it was not the product of ignorance of rights or of adolescent fantasy, fright or despair.”

In Louisiana both the Second and Fourth Circuit Courts of Appeal have spoken on juvenile confessions finding them admissible following a showing by the State that the inculpatory statements were freely and voluntarily given by the juvenile after being informed and understanding his constitutional rights, and that no threats, coercion or promises of reward were made to entice the juvenile into waiving those rights. State in Interest of Gates, 345 So.2d 974 (La.App. 2nd Cir. 1977); State v. Melanson, 259 So.2d 609 (La.App. 4th Cir. 1972).

We affirm the trial judge’s holding that (1) the defendant was advised of his constitutional rights prior to his making the in-culpatory statement, (2) the defendant was intelligent and capable of making a valid waiver of his constitutional rights, (3) the inculpatory statement was not the result of threats, coercion or promises and (4) his surroundings were not so intimidating as to cause an involuntary statement.

Thus, we find no error in the trial judge’s dismissing the motion to suppress.

With the admission of the testimony of the hearing on the motion to suppress and the unobjected to testimony of the juvenile officer, Ed Buie, we find that the State established beyond a reasonable doubt that there was a criminal offense and that the appellant committed that offense, he having so confessed. Thus, the trial judge was not in error in failing to grant the defendant’s motion for a new trial.

Therefore for the above and foregoing reasons the judgment of the trial court is affirmed.

AFFIRMED.

      . Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).


source: Caselaw Access Project

author:
WATSON, Judge.
      GUIDRY, Judge,

license: Public Domain

text:
    SOUTHERN BUILDERS, INC. v. CARLA CHARCOAL, INC.
    No. 6593.
    Court of Appeal of Louisiana, Third Circuit.
    April 19, 1978.
    Rehearing Denied April 27, 1978.
    Writ Refused May 2, 1978.
    Watson, Murchison, Crews & Arthur, William P. Crews, Jr., Natchitoches, for relator.
    Billy R. Pesnell, Hargrove, Guyton, Ra-mey & Barlow, G. M. Bodenheimer, Charles E. Tooke, Jr., Gordon E. Rountree, Shreveport, Sam J. Friedman, Natchitoches, for respondent.
    Before WATSON, GUIDRY and FORET, JJ.
   WATSON, Judge.

During a recess in the trial of this matter, a motion was filed to recuse the Honorable W. Peyton Cunningham, Jr., District Judge of the Tenth Judicial District Court, Natchitoches Parish, Louisiana. The motion to recuse was heard by the Honorable John S. Pickett, Jr., District Judge of the Eleventh Judicial District Court, sitting as judge ad hoc, and the motion was held to be without merit.

Envirotech Systems, Inc., the mover for recusation, and one of the defendants-in-re-convention, applied to this court for a writ of certiorari which was issued, this court entertaining doubt as to the correctness of the dismissal and being of the opinion that the serious issues raised should be considered.

The motion to recuse was filed following a letter written by Judge Cunningham on October 6, 1977 to Mr. G. M. Bodenheimer, Jr., counsel for Aeroglide Corporation.

The trial began on July 5, 1977 and continued for over three weeks through July 29, 1977. It was then recessed until other court dates could be assigned. All parties acknowledge that a substantial portion of the evidence was yet to be heard. During the July trial dates, the original plaintiff, Southern Builders, and the plaintiff-in-re-eonvention, Carla Charcoal, had completed most of their cases-in-chief and one of the several defendants-in-reconvention, Enviro-tech, had begun its case. (TR. 21).

The letter in question reads as follows:

“October 6, 1977
Mr. G. M. Bodenheimer, Jr.
Attorney at Law
705 Lane Building
Shreveport, Louisiana 71101
Re: Southern Builders, Inc.
versus
Carla Charcoal, Inc.
Number 41,829
Dear Mr. Bodenheimer:
This will confirm our telephone conversation of this date concerning Southern Builders versus Carla Charcoal.
Although I acknowledge that we have not completed taking all of the testimony, I have had several conferences with Mr. Bert Boyd, the Court-appointed expert, and it is our opinion that if the case were to be decided that there would be judgment in favor of Carla Charcoal for a substantial amount.
The liability would be broken down on the basis of Envirotech being 70% liable, Aeroglide 25% and Southern Builders 5%, with Thomas Conveyor Company paying a portion of Aeroglide’s part. I do not know the exact amount of damages but these would include a substantial loss of profit, repair expenses, etc.
I would be glad to meet with you and any of the other attorneys at a time that is convenient and will set a date if you so request.
By copy of this letter to all counsel involved, I am apprizing them of these developments.
Yours very truly,
/s/ W. Peyton Cunningham, Jr.
W. Peyton Cunningham, Jr.
WPC JR: bdk
cc: (As indicated)” (TR. 50).

At the hearing on the motion to recuse, evidence was taken concerning the circumstances under which the letter was written. Judge Cunningham testified that he had been advised by counsel for Envirotech that there was a possibility of settlement, although counsel and the judge did not discuss the details. The judge added:

“The suggestion was made, possibly by me, that if I would indicate a percentage that I thought each of the respective companies should contribute, that it might facilitate the settlement. So I wrote the letter.” (TR. 22).

The following testimony is also significant:

“Q. Judge Cunningham, is there any doubt in your mind that you can keep an open mind in considering the additional evidence that is to be offered in this case?
“A. There is no doubt in my mind.
“Q. Do you have any doubt in your mind that you can and will give all of the defendants, all the parties, a fair and impartial trial, and decision in this matter?
“A. There is no doubt in my mind. As I pointed out in the letter that I wrote, I acknowledge that we had not completed taking the testimony of the witnesses.
“Q. And the opinion and views which you expressed in your letter were necessarily based upon the record as it then existed?
“A. That’s correct.” (TR, 25-26).

The contention of Envirotech is that Judge Cunningham has demonstrated bias and prejudice and that Envirotech cannot receive a fair and impartial trial. The issue is, of course, whether Judge Cunningham should be recused.

The Louisiana Code of Civil Procedure is specific in listing the grounds upon which a judge may be recused in a civil case. These are found in LSA-C.C.P. art. 151 which reads as follows:

Art. 151. Grounds
“A judge of any court, trial or appellate, may be recused when he:
(1) Is a material witness in the cause;
(2) Has been employed or consulted as an attorney in the cause, or has been associated with an attorney during the latter’s employment in the cause;
(3) Has performed a judicial act in the cause in another court;
(4) Is the spouse of a party, or of an attorney employed in the cause; or is related to a party, or to the spouse of a party, within the fourth degree; or is related to an attorney employed in the cause, or to the spouse of the attorney, within the second degree; or
(5) Is interested in the cause.
In any cause in which the state, or a political subdivision thereof, or a religious body or corporation is interested, the fact that, the judge is a citizen of the state or a resident of the political subdivision, or pays taxes thereto, or is a member of the religious body or corporation, is not a ground for recusation.”

The only sub-paragraph of article 151 which has been suggested by Envirotech as applying in this case is sub-paragraph (5). However, there appears in the record no support for the theory that Judge Cunningham is interested, in any manner, in the litigation, and we have been cited to no authority for the proposition that an expression during the course of the litigation as to the responsibility of the various defendants is a demonstration of interest in the cause.

The jurisprudence has developed a firm rule that there must be a statutory ground for recusing a judge. State v. Chantlain, 42 La.Ann. 718, 7 So. 669 (1890); Shreveport Long Leaf Lumber Co. v. Jones, 188 La. 519, 177 So. 593 (1937). Here no statutory provision applies.

We are not unmindful of the provisions of the Louisiana Constitution of 1974 and particularly art. 1, § 22 which reads as follows:

“Section 22. All courts shall be open, and every person shall have an adequate remedy by due process of law and justice, administered without denial, partiality, or unreasonable delay, for injury to him in his person, property, reputation, or other rights.”

The letter from Judge Cunningham to the attorneys was ill-advised. However, it does not reflect such partiality as would justify his recusal. He testified specifically that the letter only represented his tentative conclusions on the basis of the evidence thus far presented and that he would decide the case on a fair and impartial basis after all evidence was heard. There is nothing in the record to support a contrary conclusion.

Therefore, the decision by the judge ad hoc to deny the motion for recusation is affirmed; the writ of certiorari is recalled and set aside.

Costs are taxed against the petitioner-in-writ, Envirotech Systems, Inc.

Writ recalled.

GUIDRY, J., concurs and assigns written reasons.

FORET, J., concurs for the reasons assigned by GUIDRY, J.

GUIDRY, Judge,

concurring.

I concur in the result for the reason that the grounds for recusation urged by relator are not among those listed in LSA-C.C.P. Article 151 and the jurisprudence of this state is uniform to the effect that the causes therein specified are exclusive rather than illustrative. State v. Chatlain, 42 La.Ann. 718, 7 So. 669 (La.1890); State v. Davis, 154 La. 928, 98 So. 422 (La.1910); State v. Laborde, 214 La. 644, 38 So.2d 371 (La.1949), and, State v. Pailet, 246 La. 483, 165 So.2d 294 (La.1964). In deciding the issue before us I believe that we are bound to follow this uniform jurisprudence and that any change therein must come from our Supreme Court.

It is my personal view that the cited article should not be so narrowly construed but rather it should be given a broad construction to the end that a judge, trial or appellate, would be subject to recusation in any case where his objectivity and impartiality may fairly be brought into question although in fact no bias or prejudice actually exists.

In the instant case I entertain not the slightest doubt that the trial judge can hear the balance of this case and render a fair, honest and impartial decision. However, be that as it may, the letter, its contents (regardless of the intended meaning), and the time when it was written, brings the trial judge’s impartiality into question although in fact no partiality actually exists. Under these circumstances, I am of the opinion that the interests of justice and the integrity of our judicial system would best be served by the respondent judge’s recusation. As stated by Justice Frankfurter in Offutt v. United States, 348 U.S. 11, 14, 75 S.Ct. 11, 13, 99 L.Ed. 11 (1954): “justice must satisfy the appearance of justice”. For these reasons I respectfully concur.

      . Other defendants-in-reconvention are Aero-glide Corporation and Southern Builders, Inc., all being respondents-in-writ along with Carla Charcoal, Inc. All oppose the motion to re-cuse.

      . A suggestion was made in oral argument that this court issue a stay order because the trial is rescheduled to resume on May 8, 1978, and, in the event of an adverse decision by this court, petitioner-in-writ desires to seek a writ from the Louisiana Supreme Court. It would be the prerogative of the Supreme Court to issue a stay order under the circumstances.

      . LSA-C.C.P. Article 151 is, by its terms, identical to the former LSA-R.S. 15:303, which previously set forth the grounds for recusation of judges in criminal cases. Thus, the decisions of the Supreme Court interpreting the latter section are relevant and controlling.


text:
    A. B. HICKS v. Warren G. KLEBAN.
    No. 50166.
    Supreme Court of Mississippi.
    April 12, 1978.
    Jackson M. Brown, Starkville, Seales & Scales, Clarence R. Scales, Fred T. Rucker, Jackson, for appellant.
    Burgin, Gholson, Hicks & Nichols, William G. Burgin, Jr., Dewitt T. Hicks, Jr., Columbus, for appellee.
    Before PATTERSON, C. J., and BROOM and BOWLING, JJ.
   AFFIRMED AS MODIFIED.

SMITH and ROBERTSON, P. JJ., and SUGG, WALKER, LEE and COFER, JJ., concurring.


text:
    VOYAGER LIFE INSURANCE COMPANY v. Julian D. COCHRAN.
    No. 50215.
    Supreme Court of Mississippi.
    April 12, 1978.
    A. M. Murphy, Lucedale, Watkins, Pyle, Ludlam, Winter & Stennis, Walker W. Jones, III, Jackson, for appellant.
    Hurt & Dickerson, Gerald A. Dickerson, Lucedale, for appellee.
    Before SMITH, P. J., and LEE, BOWLING and COFER, JJ.
   AFFIRMED.

PATTERSON, C. J, ROBERTSON, P. J., and SUGG, WALKER and BROOM, JJ., concurring.


text:
    Edwin OSWALT v. STATE of Mississippi.
    No. 50390.
    Supreme Court of Mississippi.
    April 12, 1978.
    Joseph C. Gibbs, Clarksdale, for appellant.
    A. F. Summer, Atty. Gen., by Calvin Coolidge Williams, Jr., Special Asst. Atty. Gen., Jackson, for appellee.
    Before ROBERTSON, P. J., and SUGG and WALKER, JJ.
   AFFIRMED.

PATTERSON,'C. J., SMITH, P. J, and BROOM, LEE, BOWLING and COFER, JJ., concurring.


author: BOWLING, Justice,

text:
    Jimmy Wayne HARRELL v. STATE of Mississippi.
    No. 50440.
    Supreme Court of Mississippi.
    April 12, 1978.
    Richard D. Foxworth, Columbia, for appellant.
    A. F. Summer, Atty. Gen. by Calvin Coolidge Williams, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before SMITH, LEE and BOWLING, JJ.
   BOWLING, Justice,

for the court.

Appellant was tried and convicted in the Circuit Court of Marion County. He was charged with violating the provisions of Mississippi Code Annotated section 97-5-23 (1972), which provides as follows:

Any male person above the age of eighteen years, who, for the purpose of gratifying his lust, or indulging his depraved licentious sexual desires, shall handle, touch, or rub with hands or any part of his body or any member thereof, any child under the age of fourteen years, with or without his consent, shall be guilty of a high crime and upon conviction thereof, shall be fined in any sum not less than ten dollars ($10.00) nor more than one thousand dollars ($1,000.00), or be imprisoned in the state penitentiary not less than one year nor more than ten (10) years, or be punished by both such fine and imprisonment, at the discretion of the court.

Appellant presents two assignments of error, towit:

1. The court erred in permitting the State of Mississippi to introduce the alleged confession and other statements of the appellant over the objection of the appellant, because the said statements were made prior to the appellant being given a constitutional warning as required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and after he was placed in fear of his life.
2. The State of Mississippi failed to prove any violation of Section 97-5-23 of the Mississippi Code of 1972 as amended.

As stated above, appellant contends that his Miranda warnings and instructions were not sufficient to satisfy the Sixth Amendment requirements as set out in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), and Gerstein v. Pugh, 420 U.S. 103, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975).

First we need to examine and analyze the warnings, statement of rights, and waivers executed by appellant prior to giving the statement complained of by him here. The record shows that appellant was arrested after midnight on the morning of January 7, 1977. At the non-jury hearing to determine the admissibility of appellant’s statement, Bobby Reed, Sheriff of Marion County and the arresting officer, testified that immediately upon arresting appellant he read him the following Miranda rights, to-wit:

You do not have to say anything. You have an absolute right to remain silent. Anything you might say can and will be used against you in a court of law. You have the right to talk to an attorney before talking to police, and you may have the attorney present while being questioned. You will be provided with an attorney if you want one and if you cannot afford one the attorney will be provided without charge to you. If you do not desire to answer any questions or if you desire to discontinue the interview at any time you will not be compelled to continue.

Appellant was taken to the Marion County jail and according to the testimony of the officers, and not materially disputed by appellant, the latter was presented an already completed form obviously used by the sheriff’s office and written in typed capital letters. Appellant read and signed this form as follows:

“YOUR RIGHTS
Place Marion County Sheriff Office
Date 1-7-77_
Time 1:25 A.M._'
“Before we ask you any questions, you must understand your rights. You have the right to remain silent. Anything you say can be used against you in Court. You have the right to talk to a lawyer for advice before we ask you any questions, and to have him with you during questioning. You have this right to the presence and advice of a lawyer even if you cannot afford to hire one. We have no way of giving you a lawyer, but one will be appointed, for you, if you wish, if and when you go to court. If you wish to answer questions now without a lawyer present, you have the right to stop answering questions at any time. You also have the right to stop answering at any time until you talk to a lawyer.
“WAIVER
I have read the statement of my rights as shown above. I understand what my rights are. I am willing to answer questions and make a statement. I do not want a lawyer.
I understand and know what I am doing. No promises or threats have been made to me and no pressure of any kind has been used against me.
“Signed Jimmy Wavne Harrell
WITNESS Bobby Reed
WITNESS Jimmy L. Rav
TIME 1:25 A.M._

After executing the foregoing rights and waiver form, appellant wrote a statement in his own handwriting and signed it. This was on another previously prepared form -headed “Statement.” Part of the statement was typed into the form and had a place for the time, date, place of the statement being given, and the name of the person making the statement. After the introduction, the remaining part of the sheet was mostly blank. Appellant wrote his statement in this part. The statement then ended with another typewritten form stating “I have read the above statement consisting of_pages and attest that it is a true and accurate account of the events which took place on_It was given by me freely and voluntarily, without fear of threat or promise of reward.” There were two blanks for witnesses and a blank for the signature of the person giving the statement. We will not set out the statement written by appellant in his own handwriting as this will serve no purpose in this opinion, as hereafter shall be discussed.

Appellant contends that this Court has condemned the above set out form headed “Your Rights” in the cases of Burge v. State, 282 So.2d 223 (1973), and Evans v. State, 275 So.2d 83 (1973). In Evans, in discussing almost the identical alleged error now before the Court, it was said:

Appellant argues that warning given was defective in that it did not inform him that if he wanted an attorney it would be immediately furnished and tended to mislead him in believing that he could not get a lawyer unless he confessed and went to court.

The Court held that the accused Evans was sufficiently warned of his rights.

In Burge, the Court again was confronted with a similar statement in the waiver form executed by the accused. One sentence in the Burge form was identical to one sentence in the form in the case at bar, towit: “We have no way of giving you a lawyer, but one will be appointed for you if you wish, if and when you go to court.”

The Court, in criticising this language but holding it not to be prejudicial and reversible error, stated:

In isolation, this argument is persuasive, but when considered in context with the remainder of the related warning, a part of which advised of the right to an attorney before responding to questioning, the plausibility disappears. In the recent cases of Holifield v. State, 275 So.2d 851 (Miss.1973), and Evans v. State, 275 So.2d 83 (Miss.1973), we held this type of warning not to be error, relying primarily upon Mayzak v. United States, 402 F.2d 152 (5th Cir. 1968).
Moreover, a volunteered statement, voiced without prompting or interrogation, is admissible in evidence if made prior to the warning and of course if it were voluntarily and spontaneously made subsequent thereto, it would remain admissible in evidence. Fabian v. State, 267 So.2d 294 (Miss.1972); Boyles v. State, 223 So.2d 651 (Miss.1969); Spurlin v. State, 218 So.2d 876 (Miss.1969); and Nevels v. State, 216 So.2d 529 (Miss.1968). Officers in the presence of a suspect, either prior to arrest or thereafter, are not required to turn a deaf ear to the voluntary utterances of such person and they are not rendered inadmissible by Miranda. We conclude the warning given to be sufficient to meet the standards set forth in Miranda, but even if this were not so, the lower court found the statement of Burge relating to the location of the gun to have been voluntarily made and since this finding is supported by credible testimony, it was admissible in evidence. We therefore conclude this assignment of error to be without merit. We think, however, since there exists a split of authority between some of the federal circuits, as well as several of the states, on the adequacy of similar Miranda warnings, that peace officers would be well advised to delete the underscored portion from the quotation “We have no way of giving you a lawyer, but one will be appointed for you if you wish, if and when you go to court ” from future warnings since the final decision on the point will apparently have to be made by the United States Supreme Court. See United States v. Cassell, 452 F.2d 533, 541, Footnote 8 2 (7th Cir. 1971); and Williams v. Twomey, 467 F.2d 1248 (7th Cir. 1972).

We hereby reiterate and emphasize the above admonition to peace officers and suggest that this be followed henceforth.

We hold that even though the one sentence quoted above that still appears in the warning now before the Court does not constitute reversible error as the other language is clear and certainly offsets any damage done by the quoted sentence. The Court found that the arresting officer read appellant his Miranda rights as set out above immediately upon arrest. The “Rights Form” then signed by appellant at the sheriff’s office clearly told appellant that “you have the right to remain silent,” and “you have the right to talk to a lawyer for advice before we ask you any questions, and to have him with you during the questioning,” and “you have the right to stop answering questions at any time,” and “you also have the right to stop answering at any time until you talk to a lawyer.”

Appellant was a high school graduate and from his testimony and the writing of the statement in his own handwriting and the contents therein, he certainly knew from reading the above that he could not be forced to give a statement. He read and agreed in the “Waiver” that “I do not want a lawyer. I understand and know what I am doing. No promises or threats have been made to me and no pressure of any kind has been used against me.”

Appellant did testify that he was threatened and was physically abused. The lower court found against him on this conflicting testimony.

Therefore, we hold, as in Evans and Burge, that the addition of the undesirable sentence in the “rights” warning is not sufficient to hold that appellant was not given adequate warnings under Miranda.

However, we do emphasize to peace officers in this state that these forms should be prepared correctly and that the objectionable sentence, as hereinbefore discussed, should be changed or omitted therefrom.

We shall not discuss the testimony of the witnesses at the trial. It is sufficient to say that with the admission of appellant’s statement and the testimony of the prosecuting witness there was ample evidence for the jury to find that appellant violated the provisions of section 97-5-23.

AFFIRMED.

PATTERSON, C. J., SMITH, P. J., ROBERTSON, P. J., and SUGG, WALKER, LEE and COFER, JJ., concur.

BROOM, J., took no part.


text:
    Herman Robert DAVIS, Jr. v. STATE of Mississippi.
    No. 50427.
    Supreme Court of Mississippi.
    April 19, 1978.
    Roy Pitts, Meridian, for appellant.
    A. F. Summer, Atty. Gen., by Carolyn B. Mills, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before ROBERTSON, P. J., and WALKER and COFER, JJ.
   AFFIRMED.


text:
    Jimmy LEWIS a/k/a Henry Lee Harris and Thomas Butler v. STATE of Mississippi.
    No. 50445.
    Supreme Court of Mississippi.
    April 19, 1978.
    Beach, Beach, Luckett & Ross, Stephen L. Beach, Jackson, Michael McGough, Yazoo City, for appellants.
    A. F. Summer, Atty. Gen., by Billy L. Gore, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before SUGG, WALKER and COFER, JJ.
   AFFIRMED.

BOWLING, J., took no part.


author: AFFIRMED.

text:
    Kenneth ADAMS v. RALPH WALKER, INC., et al.
    No. 50172.
    Supreme Court of Mississippi.
    April 19, 1978.
    Dixon L. Pyles, Jackson, for appellant.
    Daniel, Coker, Horton, Bell & Dukes, Jackson H. Abies, III, Roger C. Clapp, Jackson, for appellees.
    Before PATTERSON, C. J., and BROOM and BOWLING, JJ.
   AFFIRMED.


author: SUGG, Justice,

text:
    Gary J. HARKINS v. Dale BOWEN, Mr. and Mrs. Charles West, Mr. and Mrs. Byron Cook.
    No. 50039.
    Supreme Court of Mississippi.
    April 19, 1978.
    T. E. Davidson, Marshall E. Hanbury, Jackson, for appellant.
    W. E. McLellan, III, David A. Harris, Jackson, for appellees.
   SUGG, Justice,

for the Court.

REVERSED AND RENDERED.

PATTERSON, C. J., SMITH and ROBERTSON, P. JJ., and WALKER, BROOM, LEE, BOWLING and COFER, JJ., concurring.


text:
    OPINION OF THE JUSTICES.
    No. 249.
    Supreme Court of Alabama.
    April 13, 1978.
   To the Members of the Senate

State Capitol

Montgomery, AL 36130

Dear Mesdames and Sirs:

Yesterday, we received your Senate Resolution 440 (a copy of which is attached), in which you requested our opinions relative to “H. B. 990, as substituted in the Senate, of the 1978 Regular Session,” (a copy of which is also attached) which bill pertains to creating the office of Assistant Judge of Probate of Jefferson County, Alabama, and provides for his appointment, qualifications, duties and benefits. The questions you have posed and our answers are as follows:

“1. Does this bill propose a local law violative of Article 4, Section 105 of the Constitution?”

Our answer is No, so far as we have been able to determine.

“2. Does Section 1 of this bill contravene Section 6.13 of Amendment No. 328 to the Constitution?” Our answer is yes.

“3. Does Section 1 of this bill contravene that provision of Section 6.14 of Amendment No. 328 to the Constitution which provides in pertinent part that: ‘Vacancies in any judicial office shall be filled by appointment by the governor?’ ”

Our answer is yes.

“4. Do the provisions of the bill provide for an unconstitutional delegation of judicial power in contravention of Amendment No. 328 to the Constitution?”

In view of the answers we have already given to questions 2, and 3, it does not appear to us that it is necessary to answer this question. Moreover, the question is altogether too general, pertaining to the whole of “The Judicial Article.”

We shall now elaborate on our answers.

With respect to our answer to question 1, clearly this bill does propose a “local law” as that term is defined in § 110 of the Constitution, being “a law which applies to any political subdivision or subdivisions of the state less than the whole,” namely, Jefferson County. However, the prohibition of § 105 is that

“No special, private, or local law, except a law fixing the time of holding courts, shall be enacted in any case which is provided for by a general law * * *.”

Whether this local law is prohibited by § 105 depends, then, on whether there is a general law providing for the creation of the office of Assistant Judge of Probate. In the limited time which we have had to search the statutes, we have not been able to find any provision of general law providing for such an office as Assistant Judge of Probate. Assuming that this office is not “provided for by” the general law pertaining to the office of Probate Judge [§ 12-13-30 to § 12-13-70], we answer this question in the negative.

With respect to our answer to question 2, § 6.13 of amendment No. 328 to the Constitution (“The Judicial Article”) states:

“All judges shall be elected by vote of the electors within the territorial jurisdiction of their respective courts.”

This bill contravenes that section because it provides for the appointment of the Assistant Judge of Probate in Jefferson County by the Judge of Probate.

With respect to our answer to question 3, § 6.14 of amendment No. 328 specifically provides:

“Vacancies in any judicial office shall be filled by appointment by the governor; however, vacancies occurring in any judicial office in Jefferson County shall be filled as now provided by Amendments 83 and 110 to the Constitution of Alabama of 1901 ...”

Amendments 83 and 110 are not applicable to the office of Judge of Probate. Opinion of the Justices, 280 Ala. 653, 197 So.2d 456 (1967). Therefore, it appears to us such appointment would have to be made by the governor.

Yours sincerely,

s) C. C. TORBERT,

Chief Justice,

s) JAMES N. BLOODWORTH

s) HUGH MADDOX

s) RENEAU P. ALMON

s) JANIE L. SHORES

s) ERIC EMBRY,

s) SAM A. BEATTY

Associate Justices

APPENDIX A

SR 440 REQUESTING AN ADVISORY OPINION OF THE JUSTICES OF THE SUPREME COURT RELATIVE TO H. B. 990, AS SUBSTITUTED, OF THE 1978 REGULAR SESSION

BE IT RESOLVED BY THE SENATE OF THE LEGISLATURE OF ALABAMA, That we do respectfully request the Honorable Chief Justice and Associate Justices of the Supreme Court, or a majority of them, to give this body their written opinions of the following important constitutional questions which have arisen concerning the pending H. B. 990, as substituted in the Senate, of the 1978 Regular Session, which bill pertains, inter alia, to creating the office of assistant judge of probate of Jefferson County and providing for his appointment, qualifications, duties and benefits. Copies of said bill as substituted are attached hereto and made a part hereof by reference.

1. Does this bill propose a local law vio-lative of Article 4, Section 105 of the Constitution?

2. Does Section 1 of this bill contravene Section 6.13 of Amendment No. 328 to the Constitution?

3. Does Section 1 of this bill contravene that provision of Section 6.14 of Amendment No. 328 to the Constitution which provides in pertinent part that:

“Vacancies in any judicial office shall be filled by appointment of the governor?”

4. Do the provisions of the bill provide for an unconstitutional delegation of judicial power in contravention of Amendment No. 328 to the Constitution?

RESOLVED FURTHER, That the Secretary of the Senate is hereby directed to send sufficient copies of the pending H. B. 990, as substituted, with attachments to the Clerk of the Supreme Court of Alabama and to transmit this request to the Justices of the Supreme Court forthwith upon adoption of this resolution.

APPENDIX B

Senate LL No. 2 Substitute to H. B. 990

SYNOPSIS: This bill creates the office of assistant judge of probate of Jefferson County and prescribes the qualifications, duties and benefits for such office.

A BILL TO BE ENTITLED AN ACT

To create the office of assistant judge of probate of Jefferson County; to prescribe the qualifications, duties and benefits for such office; and to repeal conflicting laws.

BE IT ENACTED BY THE LEGISLATURE OF ALABAMA:

Section 1. This act shall apply to the Office of Probate Judge of Jefferson County. There is hereby created the office of Assistant Judge of Probate in Jefferson County. Such judge shall be learned in the law, over the age of twenty-five years and a resident of Jefferson County for one year or more next preceding the date of taking office. He shall be appointed by the Judge of Probate from a list of three eligible persons selected and submitted to him as follows: If there is in such county a Judicial Commission pursuant to law or any amendment to the Constitution of Alabama to select eligibles for appointment to vacancies in the office of Circuit Judge in Jefferson County, the Judicial Commission shall accept applications and submit the names of the three best qualified persons to the Judge of Probate, in the same manner as the Judicial Commission would select eligi-bles for appointment to a Circuit Judge vacancy. If there is no such Judicial Commission in Jefferson County, or if such Judicial Commission fails to act, then a committee composed of three members — (1) one of whom shall be a circuit judge of Jefferson County appointed by the presiding judge of the circuit court of Jefferson County, (2) one shall be a practicing lawyer experienced in probate court matters in Jefferson County to be appointed by the president of the Bar Association having the largest membership in Jefferson County, and (3) one shall be a non-member of the Bar Association appointed by the county commission or other county governing body — shall receive applications and certify the three deemed best qualified for such office. Vacancies shall be filled in like manner. The members of such Judicial Commission or other committee shall serve without compensation for such services.

Section 2. Under the general authority, supervision and direction of the Judge of Probate, such Assistant Judge shall be the administrative officer of such probate court, and further shall have the following authority and powers:

1. All of the powers, authority and responsibilities now vested or which may hereafter be vested by law in the chief clerk of such court.

2. All authority, powers, duties and responsibilities of the clerk-and-register of any such probate court, as provided in Act No. 558 of the Regular Session of 1959 of the Legislature of Alabama.

3. To serve as master and hold references in matters involving contested claims and ascertainments of condemnation awards, and make written report of the findings.

4. To appoint administrators ad litem and appoint notaries public and to appoint legal representatives for recipients of public assistance funds, when such duties and authority are vested in the judge of probate.

5. To hear and determine petitions for adoptions, change of names, legitimations, annexation and other municipal elections, and applications for commitment of mental patients.

6. To do all other acts and things and perform all other duties that the judge of probate could do and perform.

7. The Assistant Judge shall be a full-time employee and shall not engage in any other employment.

All of the official acts of such Assistant Judge of Probate shall be performed in his own name. The Assistant Judge of Probate may be appointed to serve as special judge of probate in accordance with such authority as is now provided by Section 12-13-37, Code of Alabama 1975.

Section 3. Such Assistant Judge of Probate, before he enters upon his duties, must take the oath directed to be taken by the officers of this state, and give bond, with surety, under the same conditions and penalties as are provided for the Probate Judge in Title 12, Chapter 13 of the Code of Alabama 1975, and other provisions of law applicable to such office in such county, the costs and expenses of which shall be paid for as costs of the official bonds for other county officers in such county are paid.

Section 4. The Assistant Judge of Probate shall be a county officer, and shall serve under the provisions of laws applicable to such office, and he shall be entitled to the same benefits as other county officers are entitled. He shall be subject to the same liabilities, penalties and responsibilities for his acts as are provided by law for or on the Judge of Probate. The Assistant Judge (or Associate Judge) shall hold office for the term of the Judge appointing him, but subject to removal by the Judge for cause by order to be entered at length on the minutes of the court. The salary for the Assistant Probate Judge shall be equal to 90% of the salary paid the Probate Judge of Jefferson County and such salary shall be paid and increased or lowered as the salary for the Probate Judge in Jefferson County is increased and lowered, and paid.

Section 5. The provisions of this Act are severable. If any part of the Act is declared invalid or unconstitutional, such declaration shall not affect the part which remains. This Act is cumulative.

Section 6. All laws or parts of laws which conflict with this Act are hereby repealed.

Section 7. This Act shall become effective immediately upon its passage and approval by the Governor, or upon its otherwise becoming a law.

      . See Appendix A.

      . See Appendix B.

      . See Opinion of the Justices, 280 Ala. 653, 197 So.2d 456 (1967) where a similar question was answered in the affirmative with respect to then existing constitutional provisions.


author: WRIGHT, Presiding Judge.

text:
    Frank LIGHTFOOT and Frank Lightfoot, Jr. v. HARRIS TRUST & SAVINGS BANK, a corporation.
    Civ. 1025.
    Court of Civil Appeals of Alabama.
    April 6, 1977.
    Rehearing Denied May 11, 1977.

      Marshall H. Fitzpatrick, Birmingham, for appellants.
    Hewitt L. Conwill for Harrison & Con-will, Columbiana, for appellee.
   WRIGHT, Presiding Judge.

Defendants appeal from judgment for plaintiff in detinue. The issue is: Does Sec. 9-103(3) or Sec. 9-103(4) of Title 7A of the Code of Alabama (1940) (Recomp.1958) apply when an automobile purchased in a state which requires perfection of a security interest therein by notation upon a certificate of title, is brought into Alabama and purchased here prior to the application for and issuance of the certificate of title with noted security interest in the original state? We find that Sec. 9-103(4) applies in this case and affirm the judgment of the trial court.

The stipulated material facts are as follows: The automobile was purchased in Illinois on November 11, 1971. A purchase money security interest attached on that day in favor of plaintiff or his assignor. On November 12, 1971, the purchaser sold the automobile in Crossville, Alabama and gave a bill of sale therefor. On December 8, 1971, it was resold in this state to defendants. On November 18, 1971, the Illinois seller filed application for certificate of title, listing thereon the security interest of plaintiff. Certificate was issued by the Secretary of State of Illinois on November 30, 1971, showing the lien of plaintiff dated November 11, 1971.

The question of which of the subsections of Sec. 9-103 of Title 7A is to be applied to a factual situation such as is presented by this ease has not previously been decided in this state. In fact, the precise question has apparently not been previously decided by the appellate courts of any state. This court in the case of Deposit Nat. Bank of Mobile County v. Chrysler Credit Corp., 48 Ala.App. 161, 263 So.2d 139 (1972) discussed Secs. 9-103(3) and 9-103(4). We pointed out that Sec. 9-103(4) is the only provision of Sec. 103 which may be applied when there is involved personal property covered by a certificate of title issued by a state which requires indication thereon of any security interest as a condition of perfection. Sec. 9-103(4) is as follows:

“(4) Notwithstanding subsections (2) and (3), if personal property is covered by a certificate of title issued under a statute of this state or any other jurisdiction which requires indication on a certificate of title of any security interest in the property as a condition of perfection, then the perfection is governed by the law of the jurisdiction which issued the certificate.”

Illinois is a state which requires that automobiles be covered by certificates of title and that a security interest be perfected by listing on the certificate of title. There is further an Illinois statute providing as follows:

“(b) a security interest is perfected by the delivery to the Secretary of State of the existing certificate of title, if any, an application for a certificate of title containing the name and address of the lien-holder and the date of his security agreement and the required fee. It is perfected as of the time of its creation if the delivery is completed within 21 days thereafter, otherwise as of the time of the delivery.” Ill.Rev.Stat.1973, Ch. 95Vn, Sec. 3-202(b).

Appellant contends that the provision “covered by a certificate of title” in Sec. 9-103(4) establishes a time reference of entry into this state. In other words, there must already be a certificate of title issued covering the property at the time it enters this state in order for Sec. 9-103(4) to apply. We do not believe such to be the meaning of Sec. 9-103(4). If it were, the above quoted Sec. 3-202(b) of the Illinois Code would have little purpose nor would the similar provision of the Alabama automobile title law, Title 36, Sec. 185(b) enacted in 1973, subsequent to the origin of this dispute. Clearly, these statutes were enacted to protect the lienholder while awaiting issuance of the tardy certificate containing information as to the lien. If there is implied into Sec. 9-103(4) such a time of entry reference, there is a repealing repugnancy in the provisions of Title 36, Sec. 185(b).

The appellants observe that the first purchaser of the automobile in Alabama was deprived of notice contemplated by law to be available to him when the automobile entered Alabama without the prior issuance of a certificate of title. They indicate that had plaintiff proceeded to perfect its security interest by filing as with other personal property, the purchaser in Alabama would have had benefit of notice. We are unable to follow appellants’ logic. It would seem that if the Alabama purchaser knew that the automobile came from Illinois he would be on notice that there was a certificate of title necessary to transfer ownership and that such certificate would indicate any security interest. If the purchaser had sufficient information to check for Illinois filing, he could as easily check for an Illinois certificate.

Appellants’ argument of the inequity of lack of notice to the first purchaser in Alabama is not pertinent to the facts of this case. The first purchaser is not a defendant and appellant here. The fact is that at the time of purchase by defendants there had been a certificate of title issued covering the automobile which contained notice of the security interest of plaintiff. Defendants had as much opportunity of notice as they would have had had the certificate of title been issued at the time of entry. It is obvious that there must be some delay from time of attachment of a security interest until its perfection in any event, but in particular where by statute a security interest is required to be indicated on a certificate of title as a condition of perfection. States which require such conditions of perfection recognize there is a physical delay between attachment and perfection. To protect the creditor in such cases from subsequent lienors, either local or foreign, such states may provide statutory retroactive perfection. Alabama, by adopting Sec. 9-103(4), concedes that the law of the issuing state should govern the matter and time of perfection.

In our opinion, in Deposit Nat. Bank of Mobile County v. Chrysler Credit Corp., supra, we commented upon the burden which Sec. 9-103(4) could place upon Alabama consumers. We pointed out such problem arose largely because sales were freely and legally made in Alabama without certificate of title. The legislature has now enacted a title law very similar to that of Illinois, including retroactive perfection of security interest, which became effective with 1975 models. Title 36, Chap. 13, Code of Alabama (1940) (Recomp.1958) (Supp.1973). Presumably, Alabama is no longer the sucker state for car thieves and fraud merchants.

The judgment below is affirmed.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


author: ALMON, Justice. BEATTY, Justice

text:
    In re Frank LIGHTFOOT et al. v. HARRIS TRUST & SAVINGS BANK, a corporation. Ex parte Frank Lightfoot and Frank Lightfoot, Jr.
    SC 2596.
    Supreme Court of Alabama.
    March 10, 1978.

      Marshall H. Fitzpatrick, Birmingham, for petitioners.
    Hewitt L. Conwill, Columbiana, for respondent.
   ALMON, Justice.

The opinion on original deliverance is withdrawn and the following is the opinion of the Court.

We granted certiorari because this is a case of first impression concerning the interpretation to be given Tit. 7A, § 9-103(4), Code of Alabama, Recompiled 1958 (now 7-9-103(4), Code of Alabama 1975).

The material facts are set out in the opinion of the Court of Civil Appeals, 357 So.2d 651. We are urged to hold that the Alabama Uniform Commercial Code § 9-103(4) does not apply to the facts of this case because Illinois law does not require “indication on a certificate of title of any security interest in the property as a condition of perfection.”

We decline to place that interpretation on the statute. To do so, we think, would require a technical and unduly narrow reading of the phrase, “condition of perfection,” and would ignore other provisions of Illinois law which require all liens to be noted on any certificate of title issued in Illinois.

The Uniform Commercial Code and the certificate of title laws are the products of commissions which draft uniform laws which are usually adopted by the legislatures of the several states in toto. We are of the opinion that Alabama’s version of the Uniform Commercial Code, like that of other jurisdictions, is intended to give full force and effect to certificate of title statutes like Illinois’ and only a drafting error prevents the smooth interlocking mesh between the UCC and the certificate of title statutes as intended by the drafters. In interpreting the UCC we must keep in mind the legislative mandate that it is to be liberally construed and applied to promote its underlying purposes and policies, one of which is to make uniform the law among the various jurisdictions. Tit. 7A, § 1-102, Code of Alabama 1940, Recompiled 1958.

The provisions of the Uniform Commercial Code governing security interests in goods (Article 9) was designed to exempt from the filing requirements of those provisions security interests in motor vehicles covered by a statute requiring a certificate of title which indicates thereon security interests in the vehicle. To that end, twenty-eight states, including Alabama and Illinois, adopted the following version of § 9-802(3):

“(3) The filing provisions of this article do not apply to a security interest in property subject to a statute
“(b) of this state which provides for central filing of, or which requires indication on a certificate of title of, such security interests in such property.” Subsection 4 of § 9-302 goes on to state:
“A security interest in property covered by a statute described in subsection (3) can be perfected only by registration or filing under that statute or by indication of the security interest on a certificate of title or a duplicate thereof by a public official.”

Uniform laws concerning certificates of title and the UCC, intended to complement each other, were adopted at different times in different states, and they were not necessarily adopted in tandem. Thus UCC § 9-103 includes choice of law provisions seeking to cover situations where property subject to a security interest is involved in interstate movements, whether that security interest is perfected under the filing provisions of Article 9 or under a state certificate of title law. Subsection 3 of § 9-103 serves the obvious purpose of covering those situations where the security interest is perfected in another state under the filing provisions of Article 9 or where that state’s certificate of title law does not require notation of the security interests on the certificate of title. See, 70 Yale L.J. 995, 1020. Subsection 4 of § 9-103 is designed to cover those situations where security interests in the automobile are perfected under another state certificate of title law; it provides:

“Notwithstanding subsections (2) and (3), if personal property is covered by a certificate of title issued under a statute of this state or any other jurisdiction which requires indication on a certificate of title of any security interest in the property as a condition of perfection, then the perfection is governed by the law of the jurisdiction which issued the certificate.”

Comment 3 in the official comment to § 9-103 makes the following observations:

“Section 9-302(2) should be consulted for certain transactions to which the filing provisions of the Article do not apply. Where property is covered by a certificate of title, the governing rule is stated in subsection (4) of this section.”

We now come to the meat of the problem. Up to this point, it is apparent that there would be little doubt that the law of another state should be applied if that state’s certificate of title law “requires indication on a certificate of title of any security interest in the property as a condition of perfection.” However, the certificate of title statutes adopted by the states were not as uniform as the UCC, and some do not mesh with the UCC as intended. The problem lies in the failure of one type of uniform certificate of title statute to include as a “condition of perfection” indication of any security interest on the certificate of title, although it is clearly contemplated that no certificate of title can be issued without such indication thereon. The problem is a definitional one concerning the term of art “perfection.”

One commentator has analyzed the various state certificate of title statutes and has found that they mostly fall into one of two types, labeled “Type III” and “Type IV.” We quote from the commentator’s article:

“Type III
“Eighteen states have certificate of title legislation and require delivery to an official and actual notation on the certificate of title as the exclusive method of perfection. The only states which fit comfortably into the model foreign jurisdiction defined in section 9-103(4) are those with Type III statutes.
“Type IV
“Seventeen states have adopted certificates of title legislation and require notation on the certificate. However, these states make delivery of the required documents to the proper official the only prerequisite for perfection.
“The important difference between Type III and Type IV is that the Type IV statutes do not literally require ‘indication on a certificate of title ... as a condition of perfection.’ Although they uniformly prescribe that a public official must note the lien on the certificate, the lienholder’s interest is perfected in Type IV states as soon as he delivers the documents to the proper official for notation.” 34 Albany L.Rev. 251, 258-260.

The author concludes that compliance with Type IV jurisdictions should be enough for the purpose of qualifying under 9-103(4). 34 Albany L.Rev. 251, 260. This view is fully supported by Professor Gilmore in his treatise entitled Security Interests in Personal Property at pages 576-577:

“. . . [Sjubsections (3) and (4) of § 9-302 state that the ‘filing provisions of this Article do not apply’ (3), and that the security interest ‘can be perfected only by indication of the security interest on a certificate of title . . . ’
(4). These two statements seem to be variant expressions of the same proposition: the security interest is perfected by compliance with the notation mechanism of the title act, not with the filing provisions of Article 9. The language of (4) suggests, however, a somewhat more difficult point: ‘can be perfected only by . indication . . ’ evidently means ‘is perfected by the indication.’ Although the negative statement in (4) must be construed to carry this positive inference, the inference should not be taken to go to the time of perfection. That is, there should be no inference that the security interest is not perfected until the ‘indication’ is made and becomes perfected only when that ministerial act is performed. The Uniform Act [Uniform Certificate of Title Act] for example, provides that the crucial act is ‘delivery’ to the relevant Department of the application for a certificate; the security interest ‘is perfected as of the time of its creation if the delivery is completed within ten (10) days thereafter, otherwise as of the time of delivery. The time of perfection should be controlled by the provisions of the title act; the reference in § 9-302(4) should be taken to mean only that ‘indication’ is the ultimate act on which perfection is conditioned.”

We hold that it is sufficient for purposes of Alabama UCC § 9-103(4) if the law of another state requires that all certificates of title issued have indicated thereon the security interests in the property, irrespective of whether such indication is a “condition of perfection” or a state official is under a statutory duty to indicate the security interests before issuing the certificate of title. To hold otherwise requires a blind adherence to the technical requirements of § 9-103(4) and defeats the intent of the drafters and of the legislature.

In reference to the Illinois statute, the exclusive method of perfecting security interests in vehicles is through compliance with the provisions of the certificate of title statute. All certificates of title issued in Illinois must contain thereon the names and addresses of any lienholders, in the order of priority as shown on the application. The Secretary of Illinois is under an affirmative duty to note the lienholders on the certificate of title. We hold that the Illinois requirements are sufficient to bring their certificate of title within the meaning of Alabama’s § 9-103(4) as a “condition of perfection.”

It is further contended that § 9-103(4) does not apply because when the car entered Alabama a certificate of title had not issued in Illinois. Such an interpretation nullifies the relation back features of Illinois’ and many other states’ laws. See notes 21 and 23, 34 Albany L.Rev. 251, 258-260. Under Illinois law, if the application of title is delivered within 21 days of the attachment of the security interest (usually the date of the sale of the vehicle), then the security interest is perfected as of the date of the attachment (perfection relates back to the date of attachment). § 3-202, supra. South Division Credit Union v. Deluxe Motors, Inc., 42 Ill.App.3d 219, 355 N.E.2d 715, 20 UCC Rep. 807 (1976); Peterson v. Ziegler, 39 Ill.App.3d 379, 350 N.E.2d 356, 19 UCC Rep. 1210 (1976).

The opinion of the Court of Civil Appeals states that the security interest attached on November 11, 1971. Application was made for a certificate of title on November 18, 1971. The Illinois Secretary of State issued the certificate of title, listing thereon the security interest of appellee, on November 30,1971. The application being made within the twenty-one day period required by Illinois law, the security interest of appellee was perfected as of November 11, 1971.

The Court of Civil Appeals is correct in its interpretation of the requirements of Illinois. Alabama UCC § 9-103(4) is applicable to the facts of this case. The decision of the Court of Civil Appeals is hereby affirmed.

AFFIRMED.

TORBERT, C. J., and MADDOX, FAULKNER, JONES and SHORES, JJ., concur.

BEATTY, J., dissents.

BLOODWORTH and EMBRY, JJ., concur in dissent.

BEATTY, Justice

(dissenting).

Certiorari was granted because this was a case of first impression concerning the interpretation to be given Tit. 7A, § 9-103(4), Alabama Code (Recomp.1958) (now § 7-9-103(4), Code of Ala. 1975).

The facts are set out in the opinion of the Court of Civil Appeals. In gist they show that the purchaser of an Illinois automobile sold it the next day in Alabama, and then eighteen days later it was resold in Alabama to the defendants. Meanwhile, six days after the first sale, in Alabama, the Illinois seller filed an application for a certificate of title in which he listed the plaintiff bank’s security interest. The actual certificate of title was issued in Illinois twenty-one days after the original Illinois sale, but was dated as of the date of the sale.

As the Court of Civil Appeals observed correctly, the security interest of the plaintiff attached on the day of the Illinois sale. The question here is, however, whether that security interest was perfected in order to enable it to be asserted against this Alabama buyer.

The Court of Civil Appeals aptly identified the applicable Uniform Commercial Code sections, i. e., Tit. 7A, §§ 9-103(3) and (4), but apparently misconceived the specific issue, for in stating that issue it assumed that the law of the original purchase state (Illinois) requires perfection of a security interest by notation upon the certificate of title. Of course, if that is what the law of Illinois requires, then our § 9-103(4) would operate to make applicable the pertinent Illinois statute. In other words, our § 9-103(4) states:

[i]f personal property is covered by a certificate of title issued under a statute of . any other jurisdiction which requires indication on a certificate of title of any security interest in the property as a condition of perfection, then the perfection is governed by the law of the jurisdiction which issued the certificate, (emphasis added)

What does Illinois require to perfect a security interest? Section 3-202(b), Chapter 95V2, Illinois Revised Statutes, 1973, which governs perfection of a security interest, states:

A security interest is perfected by the delivery to the Secretary of State of the existing certificate of title, if any, an application for a certificate of title containing the name and address of the lien-holder and the date of his security agreement and the required fee. It is perfected as of the time of its creation if the delivery is completed within 21 days thereafter, otherwise as of the time of the delivery.

It will be observed that this Illinois statute does not require perfection by listing it on the certificate. However desirable that procedure might be, and whatever salutary effect it might accomplish, that is not what Illinois requires. By plain and unambiguous language Illinois has stated that the security interest is perfected by:

(1) Delivery to the Secretary of State (Of Illinois),
(2) Any existing certificate of title,
(3) An application for a certificate of title containing the name and address of the lienholder and the date of his security agreement,
(4) The required fee.

There is not the slightest reference to a requirement that the security interest be listed on the certificate of title as a condition to perfection. It requires little consideration to suppose that any security interest so identified in due course would be listed, but whether that occurs or not, the Illinois legislature has not required it as a condition to perfection. This conclusion is strengthened by other language contained in the same section. For example, subsection 2 provides:

If the security interest was perfected under the law of the jurisdiction where the vehicle was when the security interest attached:
(B) If the name of the lienholder is not shown on an existing certificate of title issued by that jurisdiction, a security interest may be perfected by the lienholder delivering to the Secretary of State the prescribed notice and by payment of the required fee. Such security interest is perfected as of the time of delivery of the prescribed notice and payment of the required fee. (emphasis added).

Again, there is no requirement of any indication upon a certificate of title.

Moreover, in subsection 3 of Section 3-202(c) it is stated that:

If the security interest was not perfected under the law of the jurisdiction where the vehicle was when the security interest attached, it may be perfected in this State .

And in subsection 4:

A security interest may be perfected under paragraph 3 of this subsection either as provided in subsection (b) or by the lienholder delivering to the Secretary of State a notice of security interest in the form the Secretary of State prescribes and the required fee. (emphasis added)

Additionally, in the Source Comment following Section 3-202 of the Illinois statute I find this explanation:

In the usual case where a security interest was created at the time of the sale in the state of Illinois, the lien would have been perfected as of the time of its creation where delivery of the application for certificate of title the former and existing certificate of title, and the name and address of the lienholder, the date of the security agreement, and the required fee had all been forwarded to the Secretary of State within ten days.
It was hoped that the express provisions of section 3-202 of the 1957 law [practically identical to the present language] in regard to security interests would give certainty to the law and would thereby aid the commercial transferability of motor vehicles by making more certain the rights of lienholders and purchasers, (emphasis added)

And as if to mandate compliance with those express provisions, the Illinois legislature stated in Section 3-202(a):

[a] security interest in a vehicle of a type for which a certificate of title is required is not valid against subsequent transferees or lienholders of the vehicle unless perfected as provided in this Act.

In view of the several opportunities given to that body to include in the procedure governing perfection some “indication on the certificate” of the security interest as a condition to perfection, I must conclude that the absence of any such requirement was a deliberate choice.

In reaching this conclusion I have relied upon the plain language of the Illinois statute governing perfection, having found no reported case decided by the Illinois courts on that point. C. Jon Development Corp. v. Pand-Rorsche Corp., 69 Ill.App.2d 469, 217 N.E.2d 416 (1966), cited by the respondent, does not apply. There the seller of the automobile endorsed an existing certificate of title in blank and delivered it to the purchasing automobile dealer who, in turn, sold it for value without notice of the seller’s retained security interest. While the Illinois court did quote Section 3-202(a) and (b), it held that the defendant-buyer was a buyer from a dealer who took free of the security interest requirements of 3-202, because the transaction was governed by 3-201 which excepted such transactions by a buyer in the ordinary course of trade.

Notwithstanding the paucity of cases on the requirements of § 9-103(4), this interpretation has support. In the case of In re White, 266 F.Supp. 863 (N.D.N.Y.1967) it was interpreted this way:

The opening language of subsection (4) indicates an intent to provide that where a security interest in personal property is perfected by indication of same upon a certificate of title as required by the statute of another jurisdiction, the provisions of subsection (3) are not applicable. These circumstances or background facts exist here. Since it is stipulated that the security lien was properly perfected under the laws of Virginia, any further attack upon such perfection in any jurisdiction must be based upon the law of that state. No such attack is made here and the filing provisions of subsection (3) are not applicable. Unless construed as above, subsection (4) would have little or no meaning. ‘There is a presumption against a construction which would render a statute ineffective or inefficient . ’. Bird v. United States, 187 U.S. 118 at 124, 23 S.Ct. 42, 44, 47 L.Ed. 100. (emphasis added)

Our own Court of Civil Appeals has recognized this requirement:

In other words, one who has a security interest in personal property, perfected in a state which requires the issuance of a certificate of title on such property and the listing thereon of a security interest as a condition of pérfection, does not have to protect such security interest by any further action in a state to which the property may thereafter be removed. [Deposit National Bank of Mobile County v. Chrysler Credit Corp., 48 Ala.App. 161, 163, 263 So.2d 139, 141 (1972)]. (emphasis added)

I conclude, therefore, that the Alabama UCC § 9-103(4) does not apply to this case because the applicable Illinois statute, § 3-202(b) does not require any “indication on a certificate of title of any security interest in the property as a condition of perfection.” Accord, 34 Albany L.Rev. 251, 259. That much is clear, even though there are ambiguities otherwise contained in our § 9-103(4). What, for instance, is the meaning of the sentence “if personal property is covered by a certificate of title issued under a statute of . any other jurisdiction . . . ”? (emphasis added) In its opinion the Court of Civil Appeals interprets this language to mean that a certificate of title on the automobile must have been issued as of the time of the transaction in question rather than, as insisted by the petitioner, at the time of entry of the automobile into this state.

I believe the petitioner is correct, and that subsection (4) displaces subsection (3) only when the automobile is “covered by a certificate of title” at the time the automobile comes into this state. Indeed, with the exception of the foreign title certificate statute, § 9-103(3), and the excluded transactions of § 9-104, the whole of Article 9 on secured transactions applies to personal property “within the jurisdiction of this state.” Title 7A, § 9-102(1). Surely this language represents a legislative policy requiring property within this state to fall under the perfection requirements of Article 9, unless provided for by § 9-103. Accord, In re Zimmardi, 8 UCC Rep. 1396 (D.Me.1971). When this automobile entered Alabama, no certificate of title upon it had been issued, so clearly it was not “covered” by a certificate of title in order to activate § 9-103(4).

This interpretation finds support when the apparent purpose of § 9-103(4) is applied to innocent parties. For what the drafters obviously intended was to allow the originally perfected certificate of title in the title state (like Illinois) to continue perfected throughout any subsequent interstate movements, controlled only by other statutes limiting the length of time given perfection, such as § 9-403. 34 Albany L.Rev. 251, 269. The effect of § 9-103(4) is to give full and absolute protection to the initially perfected security interest, even though the subsequent innocent purchaser or his creditor received no notice of that outstanding security interest. Thus § 9-103(4) becomes an application of the rule of caveat emptor which ignores the interests of purchasers and creditors in the filing state, such as Alabama. 54 Cornell L. Rev. 6.10, 621. If that is to be the rule, and it is, then it is not unreasonable to insist upon the requirement of a certificate of title already in existence, “issued,” when the collateral comes into Alabama, as the modicum of notice to which the innocent purchaser in Alabama, or his creditor, are entitled.

Because the Alabama title law provision, Tit. 36, § 185(b), which is almost identical to § 3-202 of the Illinois Vehicle Code, was enacted after the initiation of this litigation, any comment upon its effect would be dictum here as it was in the opinion of the Court of Civil Appeals.

Under these facts it is clear that § 9-103(3) governs this case. The applicable language follows:

If the security interest was not perfected under the law of the jurisdiction where the property was when the security interest attached and before being brought into this state, it may be perfected in this state; in such case perfection dates from the time of perfection in this state.

In this case the security interest was perfected in Illinois under Illinois law after the automobile entered Alabama. Under Alabama law, therefore, that security interest should have been perfected in Alabama. Although the stipulation of facts does not expressly state that no subsequent perfection in Alabama has taken place, such a finding is implicit in the opinion of the Court of Civil Appeals. Under those facts, the case should have been remanded to that Court for an adjudication of whatever priority rights in the automobile exist between the parties.

It is clear that the motive of the majority is to put Alabama in line with other states so that our law on the recognition of foreign perfection will correspond with that of others. That such a salutary goal is desirable cannot be questioned. Indeed, the author of this dissent has consistently aligned himself with reforms and improvements in law, e. g., Alabama Law Review 12:253; 13:98; 15:405; 16:351. It is not the goal I quarrel with but the method employed, for the majority “construe” the Illinois perfection statute when its terms could not be plainer and having done so suppress the effect of our own Sections 9-103(3) and (4). In short, not only have the majority legislated for the people of Illinois on the subject of perfection but, in addition, by refusing to follow the clear language of our own Sections 9-103(3) and (4) the majority have surrendered to the foreign state the control of property moving into our own. Even if this were a desirable result for the sake of uniformity, it is a subject for legislative rather than judicial change. Statutes whose clear terms sometimes cause undesirable results are to be preferred over the confusion which results from the attempts by courts to rectify them.

BLOODWORTH and EMBRY, JJ., concur.

      . Interstate Perfection of the Motor Vehicle Security Interest: A Bottleneck in Section 9-103, 34 Albany L.Rev. 251, 254, N. 12 (1970).

      . The May, 1949, Draft of the Uniform Commercial Code contained a complete title act incorporated into the Code. Security Interests in Motor Vehicles under the UCC: A New Chassis for Certificate of Title Legislation, 70 Yale L.J. 995, 999, N. 31 (1961). Also, see Gilmore, Security Interests in Personal Property, Vol. 1, § 20.8, pp. 572-573 (1965).

      . Illinois is a Type IV jurisdiction. Since the article was written, Alabama has passed a certificate of title law which would place it in Type IV also. Tit. 36, § 167 et seq., Code of Alabama 1940, Recompiled 1958.

      . Section 3-207, Ch. 951/2, Ill.Rev.Stat., 1971.

      . “Each certificate of title issued by the Secretary of State shall contain: ... 3. The names and addresses of any lienholders, in the order of priority as shown on the application or, if the application is based on a certificate of title, as shown on the certificate: . . .” Section 3-107(a), Chapter 951/2, Ill.Rev.Stat., 1971.

      . “If an owner creates a security interest in a vehicle: . . . (d) Upon receipt of the certificate of title, application and the required fee, the Secretary of State shall either endorse on the certificate or issue a new certificate containing the name and address of the new lien-holder, and mail the certificate to the first lien-holder named in it.” Section 3-203, supra.

      .Alabama Uniform Certificate of Title and Anti-theft Act has such a relation back provision. It provides that if the necessary papers are delivered within ten days of the creation of the security interest, the security interest is perfected as of the date of creation. Tit. 36, § 185(b), supra.


author: HOLMES, Judge.

text:
    Gladys F. CHAVERS v. STATE PERSONNEL BOARD of the State of Alabama et al.
    Civ. 1357.
    Court of Civil Appeals of Alabama.
    Feb. 8, 1978.
    Rehearing Denied March 1, 1978.
    J. Victor Price, Jr., Montgomery, for appellant.
    William J. Baxley, Atty. Gen., Walter S. Turner, Chief Asst. Atty. Gen., for appel-lees.
   HOLMES, Judge.

This is an appeal from the Circuit Court of Montgomery’s action affirming the State Personnel Board’s dismissal of a state employee. The employee appeals and this court is compelled to reverse.

The issues on appeal are as follows:

1. Is a notification of dismissal, in writing, from an immediate supervisor sufficient compliance with Code of Ala.1975, § 36-26-27?

2. Is the evidence sufficient to support the personnel board’s and the circuit court’s finding that dismissal was justified?

As to the second issue, the following is from the learned and distinguished trial judge’s order:

“This case was submitted on August 11, 1977, for final decree upon the verified Petition for Writ of Certiorari, upon the answer of the Respondents, and upon the briefs of the respective parties. The Court has carefully reviewed the record of the proceedings before the State Personnel Board which were conducted on November 4, 1976. The Petitioner here seeks to reverse, quash, set aside and vacate the order entered by the Defendant, State Personnel Board, dismissing her from state employment. It is well settled that the function of the Court on certiorari is restricted to an examination of the record to determine whether there was any legal evidence to sustain the action reviewed.
“The evidence in this case is conflicting as to whether the Petitioner intentionally withheld material information from her employer; whether she publicly accused, while on her job and during working hours, her employer of being a drunkard, and as to whether she was untruthful with regard to her employment activities.
“It is not this Court’s prerogative on certiorari to pass upon the truthfulness of conflicting testimony or to substitute its judgment for that of the factfinding tribunal. The standard as set by our Supreme Court for certiorari in cases of this nature is for this Court to determine whether there was any .legal evidence before the Personnel Board to sustain its finding. This Court, employing such standard, is of the opinion and finds from the evidence that the order of the Personnel Board is in fact sustained by the evidence as contained in the record before this Court.”

We find the above portion of the trial court’s decree to be correct and dispos-itive of the second issue, as shown above. Put another way, this court as did the circuit court, finds there was evidence before the State Personnel Board to support the dismissal of the employee.

The first issue, as noted above, however, requires a reversal of the matter. The pertinent facts as revealed by the record are as follows:

The employee was employed by the State Department of Veterans Affairs as a clerk-typist. She was notified on June 4, 1976, that her employment with the State Department of Veterans Affairs was terminated. This letter was signed by the employee’s immediate supervisor, who was not the appointing authority.

Code of Ala.1975, § 36-26-27(a), is as follows:

“An appointing authority may dismiss a classified employee whenever he considers the good of the service will be served thereby, for reasons which shall be stated in writing, served on the affected employee and a copy furnished to the director, which action shall become a public record. The dismissed employee may, within 10 days after notice, appeal from the action of the appointing authority by filing with the board and the appointing authority a written answer to the charges. The board shall, if demand is made in writing by the dismissed employee within 10 days after notice of discharge, order a public hearing and, if the charges are proved unwarranted, order the reinstatement of the employee under such conditions as the board may determine.”

The employee, in an excellent brief, contends that the statute requires that the employee be notified of dismissal by the appointing authority and since this was not done, a reversal of the proceeding is required. To support that contention, the employee cites the state tenure law and cases interpreting that law.

The procedure for dismissal or terminating the employment contract of a teacher on continuing service status is contained in Code of Ala. 1975, § 16-24-9, and is as follows:

“An employment contract with a teacher on continuing service status may be cancelled only in the following manner:
“The employing board of education shall give notice in writing to the teacher stating in detail the reasons for the proposed cancellation and naming the exact time and place at which the teacher may appear . . .

In Board of Education of Marshall County v. Baugh, 240 Ala. 391, 395, 199 So. 822, 825 (1941), the Supreme Court of Alabama, in discussing the above quoted portion of the state tenure law, stated as follows:

“It is the County Board that must determine this important matter, and no one else, and the action of the Board in this respect involves a delicate exercise of a wise discretion. This, therefore, was a duty, the exercise of which, the County Board could not delegate to the County Superintendent of Education or any one else.
“But the County Board argues upon the theory all of this constituted an irregularity only, was of consequence subject to ratification . . ., and that the notice given by the Superintendent of Education to the various named teachers was in fact ratified and confirmed by the Board, as shown by its minutes .
“We have shown, however, that this matter of having notice given the teachers that their services would not be desired for the succeeding year, was a duty involving the exercise of a discretion and nondelegable, and the attempted delegation of the exercise of such duty to the County Superintendent was illegal and a nullity.
“The authorities are to the effect that an act done in behalf of another without authority is by positive law or public policy declared to be illegal and void. Such act is not subject to ratification. . .”

See also Brown v. Board of Education of Blount County, 242 Ala. 154, 5 So.2d 629 (1942).

We find the provisions of the respective statutes regarding notification of dismissal by appointing authorities to be virtually identical. Furthermore, we cannot discern any cogent reason, nor is any shown to us in brief, why the rationale, as stated by the supreme court in Baugh, supra, concerning teachers, would not be equally as applicable to appropriate state employees.

In view of the above, the matter is reversed and remanded for entry of a judgment not inconsistent with this opinion.

REVERSED AND REMANDED WITH DIRECTIONS.

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


author: SHORES, Justice.

text:
    Ex parte STATE PERSONNEL BOARD of the State of Alabama et al.
    77-383.
    Supreme Court of Alabama.
    April 28, 1978.
   SHORES, Justice.

WRIT DENIED.

TORBERT, C. J., and MADDOX, JONES and BEATTY, JJ., concur.


text:
    Harold JOHNSON v. U-HAUL OF SOUTHERN ALABAMA, INC.

    Civ. 1364.
    Court of Civil Appeals of Alabama.
    April 12, 1978.

      Robert F. Vargo, Atmore, Richard C. Lacey, Fairhope, for appellant.
    George A. Tonsmeire, Jr., Mobile, for ap-pellee.
   HOLMES, Judge.

The plaintiff brought suit against defendant for conversion of two trailers. A jury returned a verdict in favor of plaintiff and assessed his damages at $5,000. A judgment was entered accordingly and it is from this judgment that the defendant appeals.

The defendant has raised several issues on appeal. This court determines that the dispositive issues are as follows: 1. Is a judgment in favor of U-Haul of Southern Alabama, Inc., supported by the evidence? 2. Is the verdict and judgment in general supported by the evidence? 3. Did the trial court err to reversal in admitting a bill of sale into evidence? 4. Is the amount of damages excessive? We answer the first two issues in the affirmative and the last two in the negative and affirm.

For the sake of clarity, we will refer to the pertinent evidence as it relates to the issue presented.

I

Appellant contends there is a fatal variance between the allegations of ownership of the trailers in the complaint and the proof elicited at trial. Specifically, in the complaint, “U-Haul of Southern Alabama, Inc.” claimed that the appellant converted two of its trailers. However, the evidence at trial revealed that the trailers described in the complaint were the property of “U-Haul Systems.”

Where there is a variance between the plea, i. e., complaint, and the evidence directed to such plea, the variance is deemed as waived where there was no special objection to the evidence pointing out any variance and the variance was one which was correctable by amendment. See McDuffie v. Hooper, 294 Ala. 293, 315 So.2d 573 (1975); Clikas v. Steele, 287 Ala. 270, 251 So.2d 575 (1971).

In the present case, no objection was made at trial or in a post-trial motion raising the variance between the complaint and the proof. This absence of objection in itself precludes this court from reviewing any variance since it is raised for the first time on appeal. In anf event, the variance in this case, as noted above, is not one which could be deemed fatal in that the variance was one which was correctable by amendment. See Rule 15, ARCP.

II

In order to recover for conversion, the plaintiff must show legal title to the property at the time of the conversion and his immediate right of possession. See Wells v. Central Bank of Alabama, N. A., Ala.Civ.App., 347 So.2d 114 (1977); Thompson v. Ford Motor Credit Co., 550 F.2d 256 (5th Cir. 1977). Furthermore, it must appear that there has been a wrongful taking or detention; or illegal assumption of ownership or illegal user’ or misuser by the defendant. See Mobile Parking Stations, Inc. v. Lawson, 53 Ala.App. 181, 298 So.2d 266 (1974).

Appellant contends the evidence does not support a judgment in favor of the plaintiff. Such is not the case.

Suffice it to say, the evidence and testimony presented on behalf of the plaintiff revealed that title and immediate right of possession was vested in the plaintiff. The record reveals that the plaintiff was the original owner of the two trailers. Records of all sales of trailers were kept at the local office and at the home office in Phoenix, Arizona. No record of the sale of either trailer was found at either office. The appellant was also unable to produce a bill of sale for either trailer. Furthermore, the evidence revealed that the plaintiff had never sold one type of trailer, i. e., apartment van, that was in the possession of appellant.

The record further indicates that whenever plaintiff sold a trailer, the words, “Not the property of U-Haul,” were stamped on the tongue along with a “W” being welded on the tongue. The two trailers in issue had neither of these on them.

Evidence was also presented, by way of a bill of sale signed by the appellant, which showed that appellant converted these trailers to his own use by virtue of him selling them. In view of the above, clearly the evidence supports a finding that the plaintiff had legal title and immediate right of possession to the trailers and that the appellant illegally assumed ownership over them.

Ill

The appellant further contends the trial court erred to reversal in admitting a copy of a bill of sale into evidence in violation- of the best evidence rule.

The law in Alabama is settled in that if a party, while testifying as a witness, admits that a writing then exhibited to him is a correct copy of the original writing, the copy is admissible against him although no excuse is shown for nonproduction of the original. See Kessler v. Peck, 266 Ala. 669, 98 So.2d 606 (1957). Put. another way, a party’s formal admission in open court that a document then before the court is a correct copy of the original, obviates any necessity for production of the original. See McElroy’s Alabama Evidence 3d Ed. § 227.02.

In consideration of the above, the following exchange clearly shows that the trial court did not err in admitting the bill of sale into evidence.

“THE COURT:
“Mr. Johnson, do you recognize that instrument?
“A Yes, sir.
“THE COURT:
“Do you feel like it’s the instrument that may have been made by you?
“A Yes, it was made by me.
“THE COURT:
“Is that your signature?
“A Yes, sir.
“THE COURT:
“And what is that?
“A It’s a bill of sale for a trailer—utility trailer.
“MR. TONSMEIRE:
“I introduce it in evidence.
“MR. LACEY:
“And I would renew my motion to exclude it. That’s not the best evidence. It’s not the original.
“THE COURT:
“Does that appear to you to be an exact copy of the instrument you made— the bill of sale?
“A Yes, sir, it could be.”

IV

Lastly, appellant alleges the damages awarded plaintiff are excessive. The law in Alabama concerning damages for detention or loss of use of property sets the standard for recovery as the property’s rental value if such was known. See White Roofing Co. v. Wheeler, 39 Ala.App. 662, 106 So.2d 658, cert. denied 268 Ala. 695, 106 So.2d 665 (1958).

In this case, the jury awarded damages at $5,000. The evidence reveals that one trailer had been converted for approximately one year while the other was for approximately six months. It was admitted that $8 to $10 a day was a reasonable rental value for the trailers.

In view of the above and the fact that the amount of punitive damages is a matter within the discretion of the trier of facts, Badgett v. McDonald, 53 Ala.App. 726, 304 So.2d 228 (1974), we cannot say that, the award of damages in this case is excessive so as to require reversal.

The above being dispositive of the issues in this case, the trial court is due to be and is affirmed.

AFFIRMED.

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