text:
    Nettie Mae PEAK et al. v. STATE DEPARTMENT OF INDUSTRIAL RELATIONS.
    Civ. 767.
    Court of Civil Appeals of Alabama.
    June 23, 1976.
    Rehearing Denied July 14, 1976.

      Cooper, Mitch & Crawford and George C. Longshore, Birmingham, for appellants.
    S. Patrick Robinson, Panama City, Fla., Arthur J. Reid, Montgomery, for appellee.
   HOLMES, Judge.

This is an unemployment compensation case. The State Department of Industrial Relations in appropriate proceeding found that appellant-employees were disqualified for unemployment compensation pursuant to § 214 A of Tit. 26, Code of Alabama 1940. The employees were specifically found to be disqualified because their unemployment was due to a “labor dispute.” The Circuit Court of Jefferson County affirmed the determination of the Department, and appellant-employees prosecute this appeal.

The issues before us are whether the doctrines of federal preemption and res judica-ta prohibited the Department from acting as it did in this matter, and whether appellants’ unemployment was in fact due to a labor dispute as contemplated by Tit. 26, § 214 A, Code of Alabama 1940. We decide these issues adversely to appellants, and affirm.

The somewhat involved history of this case, as revealed by the record, is as follows:

The employer in this case is Fairview Nursing Home, a sole proprietorship owned by Mrs. Esther Johnston. In early 1972, many employees of the nursing home, including appellants herein, began to considering organizing as a union. Mrs. Johnston was opposed to this course of action.

Following Mrs. Johnston’s continued opposition to the union, and the discharge of several employees allegedly for union activity, it was determined that those employees assigned to the morning shift would report to work one hour late on March 11. The purpose of this protest was apparently to induce Mrs. Johnston to recognize the union.

The action decided upon was taken as planned. When the employees reported to work one hour late on March 11, they were immediately discharged by Mrs. Johnston. While it would serve no useful purpose to set out the pertinent evidence in detail, that evidence definitely establishes that the employees were discharged due to their having signed union cards and having attempted to form a union.

The discharged employees subsequently filed unfair labor practice charges against the employer with the National Labor Relations Board (hereinafter, NLRB). The NLRB found that the employer had committed various labor practices proscribed by the National Labor Relations Act, among which was the discharge of the employees on account of union activity. See § 8(a)(3) of the Act, 29 U.S.C.A. § 158(a)(3). The employer was ordered by the NLRB to offer to restore the discharged employees to their former positions, with back pay, and was further ordered to cease commission of the unfair labor practices which the NLRB found to have occurred. The opinion and decision of the NLRB, which was introduced into evidence, may be found at 202 N.L.R.B. No. 49.

The United States Fifth Circuit Court of Appeals affirmed the NLRB’s action without opinion at 486 F.2d 1400, and the United States Supreme Court denied certiorari. 419 U.S. 827, 95 S.Ct. 46, 42 L.Ed.2d 51.

Following their dismissal, the appellants herein applied to the Department of Industrial Relations for unemployment compensation. Benefits were denied, as noted earlier, on the ground that appellants’ unemployment was directly due to a “labor dispute.” The controlling statutory provision in this regard is Tit. 26, § 214 A, Code of Alabama 1940, which provides as follows:

“§ 214. Disqualification for benefits. —An individual shall be disqualified for total or partial unemployment.
“A. For any week in which his total or partial unemployment is directly due to a labor dispute still in active progress in the establishment in which he is or was last employed; for the purposes of this section only, the term ‘labor dispute’ includes any controversy concerning terms, tenure or conditions of employment, or concerning the association or representation of persons in negotiating, fixing, maintaining, changing or seeking to arrange terms or conditions of employment, regardless of whether the disputants stand in the proximate relation of employer and employee. This definition shall not relate to a dispute between an individual worker and his employer.”

The Circuit Court of Jefferson County affirmed the Department’s finding, and appeal was perfected to this court.

I

Able counsel for appellants initially argues that the federal jurisdiction of the NLRB is preemptive in the labor relations field, so that the Department was precluded from denying benefits to appellants on the labor dispute ground. We find no merit in this contention.

The preemptive jurisdiction of the NLRB does not extend to activity which is a merely peripheral concern of the federal labor relations acts. San Diego Building Trades Council, etc. v. Garmon, 359 U.S. 236, 79 S.Ct. 773, 3 L.Ed.2d 775. Pertinent here are the employees’ rights to self-organization and to protection from certain unfair labor practices. 29 U.S.C.A. §§ 157, 158. The action of the Department as presented by this case is completely collateral to the exercise of these employee rights. Disqualification from unemployment compensation on the ground of a labor dispute does not interfere in any manner with these protected rights so as to confer preemptive NLRB jurisdiction.

II

It is also contended that the decision of the NLRB referred to above is res judicata as to the Department, so that the Department was barred from finding as it did. We do not agree.

In order for the res judicata doctrine to apply, the parties and subject matter must be the same, the point must be directly in question, and the judgment must be rendered on that point. Bryan v. W. T. Smith Lumber Co., 278 Ala. 538, 179 So.2d 287.

To this court, in this instance, the parties and the point at issue differ in the two lawsuits. One situation involves the NLRB v. Fairview Nursing Home, while the other is a proceeding between the discharged employees and the Department. In the litigation before the NLRB, the determinative question was whether unfair labor practices had occurred, while the instant proceeding was concerned with whether the employees were disqualified for unemployment compensation due to a labor dispute. Under these circumstances, we find the doctrine res judicata does not apply.

Furthermore, the NLRB’s finding that unfair labor practices occurred has no bearing on the question of whether appellants’ unemployment resulted from a labor dispute, as will be discussed infra.

Ill

We are now brought to consideration of the most difficult issue raised by this appeal: whether employees who are discharged due to their attempted formation of a union are unemployed due to a “labor dispute” within the meaning of Tit. 26, § 214 A, Code of Alabama 1940. We conclude that such a state of affairs is a labor dispute within the meaning of the statute.

We initially note that all the states have laws which in various forms prohibit payment of unemployment benefits to individuals who are unemployed due to labor disputes. 63 A.L.R.3d 88, at 94. However, Alabama is one of the few states which undertakes to statutorily define the term “labor dispute.” Id. at 107.

The statutory definition, set out earlier, is identical to the definition of the term found in the National Labor Relations Act, 29 U.S.C.A. § 152(9). Dept. of Industrial Relations v. Stone, 36 Ala.App. 16, 53 So.2d 859.

Several theories have been advanced as to the purpose of the labor dispute disqualifications. See Shadur, Unemployment Benefits and the “Labor Dispute” Disqualification, 17 U. of Chicago L.Rev. 294, 296-300. Professor Shadur states that the most widely accepted of these theories are as follows: (1) the unemployment compensation laws are intended to only protect against involuntary unemployment; (2) the disqualification insures governmental neutrality in labor disputes; (3) the disqualification represents a conclusion th^tt an employer should not be required to finance strikes by his employees.

The first of these arguments has been heavily criticized with some justification; a brief perusal of the Alabama unemployment compensation law and the relevant cases will suffice to show that much involuntary unemployment is not compensable, while the opposite is true of some voluntary unemployment. Section 214 of Tit. 26, Code of Alabama 1940, provides, inter alia, that one who voluntarily leaves his job with good cause is eligible for benefits, which is not the case with the individual who is discharged by his employer with cause.

It is apparent that a much more accurate characterization of the pervasive scheme behind unemployment compensation law is that the law is intended to protect against justifiable unemployment, which may be voluntary or involuntary. Unemployment due to participation in a labor dispute is thus not justifiable within the contemplation of the statute. This is so due to the remaining two theories set out above.

It is the state’s interest in neutrality which is responsible for the seemingly unanimous position among the various jurisdictions that the merits of a labor dispute are not considered in the determination of whether or not a labor dispute exists. 63 A.L.R.3d at 145. In our research, the only contrary expression which we have discovered lies in the Alabama case of Department of Industrial Relations v. Stone, supra. There the Court of Appeals recognized the general rule, but qualified it where a mala fide difference of opinion existed between the disputants.

The Stone case, supra, was strongly criticized by the Supreme Court in Alabama speaking through Justice Simpson in T. R. Miller Mill Co. v. Johns, 261 Ala. 615, 75 So.2d 675. In an extensive discussion citing various authorities, Mr. Justice Simpson held that the merits of a labor dispute are not to be considered in determining whether such a dispute in fact exists, and that the language used in that regard by the Stone court was inapposite to its conclusion.

Thus, the general rule as to the merits of a labor dispute prevails in Alabama, and is applicable to the case before us. To hold that no labor dispute existed due to the employer’s failure to recognize the appellants’ union in violation of federal labor law, would be an impermissible foray into the merits of the controversy.

In this regard, it is germane to note that the Pennsylvania courts were faced with a similar situation in Burleson v. Unemployment Compensation Board of Review, 173 Pa.Super. 527, 98 A.2d 762. In that case, the employer refused to bargain with its employees’ union, in violation of federal law, when a previous contract between employer and union expired. In affirming a denial of benefits to workers unemployed due to the resulting work stoppage, the court by way of recognizing the general rule stated that, “Proof of a violation of the Act will not support an award.”

As stated earlier, it is the governmental desire to maintain a position of neutrality as regards labor disputes in the unemployment compensation area which lies behind the doctrine of noninquiry into the merits. A separate forum exists for the resolution of labor controversies; that is, the NLRB. Matters pertaining to the merits of labor disputes are committed solely to that forum; the State Department of Industrial Relations is concerned only with whether a labor dispute exists.

The definition of the term “labor dispute” used in the statute further illustrates the state’s desire to remain neutral insofar as possible. As noted earlier, this definition is exactly the same as that found in the National Labor Relations Act.

As used in the Act, this broad definition was intended to provide an expansive scope to liberal and remedial legislation. It is thus somewhat anomalous, as noted in Badgett v. Dept. of Industrial Relations (Simpson, J., concurring in the result), 30 Ala.App. 457, 10 So.2d 872, for this definition to be employed as an exception in the unemployment compensation law for the purpose of restricting rights afforded under that law. However, “. . . it may properly be stressed that the use of the term ‘labor dispute’ by a legislature when legislative definitions of the very same term were already in effect, would indicate that the legislature intended that the term be interpreted in the same way.” Williams, The Labor Dispute Disqualification — A Primer and Some Problems, 8 Vanderbilt L.Rev. 338, 342. As such, the evident legislative intent was to remove from the coverage of the unemployment compensation law those persons who are unemployed due to active participation in a labor dispute as that term is used in the National Labor Relations Act.

So viewed, the situation before us is within the ambit of the definition. Its plain meaning would include the present dispute as a “. . . controversy . concerning the association or representation of persons in negotiating . . . terms or conditions of employment . . . ” Furthermore, the definition in the National Labor Relations Act includes controversies where employees are discharged for having attempted to unionize, as the term “labor dispute” as used in the Act is jurisdictional with regard to the NLRB. 29 U.S.C.A. § 152(9); NLRB v. International Longshoremen’s Association, 4 Cir., 332 F.2d 992, 56 LRRM 2244. The NLRB could not have entertained the present controversy, as it did, unless that controversy were in fact a “labor dispute” within the meaning of the Act.

The commentators have additionally pointed out that various practical problems would arise if the existence vel non of a labor dispute for unemployment compensation purposes were dependent upon the merits of the controversy. Inconsistent and anomalous decisions would be rendered by the different decision-making bodies involved. Williams, Id., at 373. Additionally, there would be administrative difficulties, such as the fact that an employee could receive both back pay under an NLRB order and unemployment compensation for the same time period. Shadur, Id., at 307. Administrative machinery vastly more complex than that presently existing would be required for the system to function effectively.

We would finally note once more that another basis for the disqualification is that an employer should not be forced to contribute support to those who are unemployed due to labor disagreements which they have with him. The legislature made no exception for the contingency that the employer might be clearly wrong on the merits of the controversy, and we cannot by judicial fiat create one. This is not unreasonable in view of the fact that the employee has a remedy with the NLRB, to which body the resolution of labor disputes has been committed.

While we are sympathetic to those employees who lose their jobs through violation of federal laws by their employers, we feel that there are compelling reasons why they should not receive unemployment compensation if their discharge was due to a labor dispute within the meaning of Tit. 26, § 214 A, Code of Alabama 1940. In the instant situation, such a labor dispute existed. As such, and for the foregoing reasons, the case is therefore due to be affirmed.

AFFIRMED.

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


source: Caselaw Access Project

author: JONES, Justice.

license: Public Domain

text:
    In re Nettie Mae PEAK et al. v. STATE DEPT. OF INDUSTRIAL RELATIONS and Fairview Nursing Home, Intervenor. Ex parte Nettie Mae Peak et al.
    SC 1972.
    Supreme Court of Alabama.
    Dec. 10, 1976.
    Cooper, Mitch & Crawford, and George C. Longshore, Birmingham, for petitioners.
    S. Patrick Robinson, Panama City, Fla., and Arthur J. Reid, Montgomery, for respondents.
   JONES, Justice.

Writ quashed as improvidently granted. Quashing of the writ in this cause is not to be construed as agreeing with that portion of the opinion of the Court of Civil Appeals, 340 So.2d 796, that the facts as found by that Court constitutes a “labor dispute” as that term is used in Title 26, § 214 A, Code. See Nash v. Florida Industrial Commission, 389 U.S. 235, 88 S.Ct. 362, 19 L.Ed.2d 438 (1967).

WRIT QUASHED.

All the Justices concur, except BEATTY, J., not sitting.


author: BRADLEY, Judge.

text:
    Jermania CLARK v. Marion CLARK.
    Civ. 756.
    Court of Civil Appeals of Alabama.
    Sept. 15, 1976.
    Rehearing Denied Oct. 27, 1976.
    Stewart & Colvin, Anniston, for appellant.

      Lybrand, Sides & Hamner, Anniston, for appellee.
   BRADLEY, Judge.

The parties to this proceeding were divorced by a final decree of the Circuit Court of Calhoun County on October 10, 1975. Along with the divorce, the appellant-wife was awarded alimony in gross consisting of the marital home and two acres of land contiguous thereto valued between $10,000 and $20,000, a 1966 Chevrolet automobile, and $21,000 in cash. Appellant contends on appeal that the award is insufficient.

The evidence shows that the parties were married for forty-two years; the husband is now sixty-seven, the wife sixty-three. The husband’s principal occupation during the marriage was farming the two hundred acres the couple owned. It was shown that the wife assisted in nearly every area of this undertaking. She testified that she not only took care of the house, cooked the meals, and raised one child, but worked in the fields to help her husband.

After the award of alimony in gross, the appellee-husband was left with one hundred ninety-eight acres of land, most of which is cultivatable; some farm buildings; several pieces of farm machinery; about $23,000 out of some $42,000 in savings the parties had accumulated over the years, mainly from the farming operation; a 1974 Chevrolet pickup truck; and some cows and hogs.

Appellant testified that the only source of income she has now is $70.70 per month from Social Security. She cares for her eighty-six year old father who receives an additional $115 per month from Social Security. Appellant’s health at the present time is failing and she requires constant medication.

Appellee receives $187 a month from Social Security and is paid $1,200 annually for part-time work at the U. S. Department of Agriculture.

The evidence shows that the only living child of the marriage, a son, lives about two miles from the marital home on a parcel of land given to him by his parents. The son now does most of the farming and also looks after the cows and hogs for his father.

When the hearing by the trial court is ore tenus, the presumption is in favor of the correctness of the decree, and this court will not reverse except where that decree is deemed plainly and palpably erroneous. Hicks v. Hicks, 52 Ala.App. 586, 296 So.2d 180 (1974). Also, when the trial court decrees alimony in gross, it has been held that an acceptable range for the award runs from one-half to one-third or less of the husband’s estate, Frazier v. Frazier, 273 Ala. 53, 134 So.2d 205 (1961). Each case must stand on its own facts and no exact mathematical formula can be applied. Hicks v. Hicks, supra.

In the case at bar, the court made an alimony in gross award in favor of the wife. The amount of the award ranged from thirty-three percent to forty percent of the husband’s estate. Both of the parties are in their sixties and rely primarily on Social Security for the payment of living expenses. The savings account of $42,000 was divided almost equally between the two. The wife received the house, all of its furnishings and two acres of land, plus an automobile. The husband received the other one hundred ninety-eight acres, which was mostly cultivatable, some farm equipment, barns, a pickup truck and some livestock. He testified that he had given most of the machinery to his son who was doing most of the farming. Although appellee does earn a small income from part-time employment, due to his age it is not likely that this income will continue for many more years in the future.

After considering the evidence as above set out, we cannot say that the amount of the alimony awarded to appellant was so inadequate as to be an abuse of the trial court’s discretion; consequently we affirm the trial court’s decree.

AFFIRMED.

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


author: FAULKNER, Justice.

text:
    Ex parte Jermania CLARK.
    SC 2239.
    Supreme Court of Alabama.
    Dec. 30, 1976.
   FAULKNER, Justice.

WRIT DENIED.

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


text:
    Dionicio QUINTANILLA, Jr. v. Nelda B. GEORGE.
    Civ. 929.
    Court of Civil Appeals of Alabama.
    Sept. 29, 1976.
    Rehearing Denied Nov. 3, 1976.
    Benjamin E. Pool, Montgomery, for appellant.

      Joe B. Thompson, Jr., Brewton, for appel-lee.
   BRADLEY, Judge.

The matter now before this court was initiated when Mr. Quintanilla, the appellant herein, filed a petition in the Circuit Court of Escambia County, Alabama, seeking to modify a decree of the Domestic Relations Court of Dallas County, Texas, divorcing the parties to this suit and granting custody of the parties’ minor child, Nelda Denise Quintanilla, to the now Nelda B. George, mother of the child and appellee herein. Mr. Quintanilla sought to modify the former decree by having custody of the child removed from the mother and placed with himself.

On September 10, 1975 the Circuit Court of Escambia County entered a decree granting custody of the child to Mr. Quintanilla. In that decree the court said:

“ORDERED, ADJUDGED, and DECREED as follows:
“1. The custody of the child of the parties, namely, Nelda Denise Quintanil-la, is hereby granted to Dionicio Quintan-illa, Jr., and the said Nelda B. George is hereby ordered to deliver Nelda Denise Quintanilla to her father’s custody at Dallas, Texas on or before the 15th day of September, 1975, PROVIDED that Dioni-cio Quintanilla, Jr., prior to that date, shall post a $750.00 cash bond with the Circuit Court of Escambia County, Alabama. If the said Dionicio Quintanilla, Jr. shall fail to return the said Nelda Denise Quintanilla to the State of Alabama as may be ordered in the future to do so by the Circuit Court of Escambia County, Alabama, this bond shall be forfeited.
“2. It is further ORDERED, ADJUDGED, and DECREED that the matter of the custody of Nelda Denise Quin-tanilla shall be subject to modification by this court during the minority of said child and this court shall retain the right to entertain a motion to modify this judgment in the future, should the Court be made aware that the Defendant, Nelda B. George, has gotten her private life straightened out and is no longer living in an immoral environment.”

On or about December 11, 1975, the ap-pellee filed a petition in the Escambia County Circuit Court seeking a modification of the September 10, 1975 custody decree, alleging that David L. George was divorced by the Circuit Court of Mobile County on September 17, 1975 and that on December 2, 1975 the said David L. George and appel-lee were married by the Probate Judge of Dallas County, Alabama. Petitioner stated that her private life was straightened out and she was no longer living in an immoral environment and requested that the custody of the child be returned to her.

After a hearing the trial court on May 17, 1976 entered judgment awarding custody of the child to the appellee, finding:

“4. The court is rendering this decree based on its findings that the plaintiff, Nelda B. George, was legally and lawfully married in Selma, Dallas County, Alabama in accordance with prior instructions of this court for the plaintiff to get her private life straightened out because the court is convinced that the plaintiff has been a good mother and has cared for her child satisfactorily in all respects but at the time of the last hearing in this matter the plaintiff was not lawfully married although she had made every effort to consummate marriage with her present husband, David Lloyd George but was unable to do so because of the difficulties in the long pending divorce and action in Mobile County, Alabama and the court’s ruling in the previous case was based on plaintiff’s marital status at that time which was technically adultery and the court finds the plaintiff’s marriage is stable at the present time. That she enjoys a wholesome and proper home-life and that the plaintiff loves her child and is now able to offer her a moral environment and that it would be in the best interest of the child for the decree of September 10, [1975] to be modified so the care, custody and control of the child is awarded to the plaintiff subject to rights of visitation and association on the part of Dionicio Quintanilla, Jr. . . .”

The appeal is from this decree.

The evidence in the case shows that the parties to this proceeding were married in 1967 and divorced in Texas in 1971. Custody of the only child of the marriage, a girl named Denise who is now between eight and nine years of age, was awarded to the appellee by agreement. The appellant continued to live in Texas; the appellee moved back to Alabama with Denise and three children by a former marriage.

Denise remained in the appellee’s custody until September 10, 1975, when the Escam-bia County Circuit Court placed custody with the appellant. It appears that at that time appellee was living with David L. George. The evidence is uncertain as to when Mr. George’s previous wife commenced divorce proceedings in the Circuit Court of Mobile County, but no decree was awarded in that proceeding until September 1975. The Escambia County Circuit Court gave custody of Denise to the appellant for the sole reason that appellee was living with a man to whom she was not married, apparently concluding that the child was being reared in an immoral environment which was detrimental to her best interests and welfare and that the child would be better off with the father. The court in its decree specifically retained jurisdiction to return primary legal custody to the appellee once the immoral setting was rectified. There was no appeal from this decree.

The facts show that as soon as Mr. George received a divorce from his wife, he and appellee were married. Appellee then informed the court that she was legally married to Mr. George, that her private life was straightened out, that she was no longer living in an immoral environment, and that she wanted primary custody of Denise placed back with her as the court’s decree of September 1975 suggested would occur should the named impediment be removed. The Escambia County Circuit Court, upon being informed of this development, found the moral climate enhanced and decreed that the primary custody of the child Denise be returned to appellee in accordance with its previously retained jurisdiction for this specific purpose.

Other evidence before the court showed that both mother and father love this little child and make every effort to provide for her creature comforts, education and welfare. No unfitness of either parent was alluded to in the evidence.

It did appear that for the seven to nine months that the child was with the father, her health improved in that she grew taller, gained weight, and a prior anemic condition was corrected. She adjusted well to her home and school environment in Texas. It should be noted that Denise is of mixed Mexican and American heritage and has a darker skin than most Anglo-Saxons, which, according to the evidence, caused her some problems in her school in Atmore, Alabama while she lived with her mother. Her school in Texas had several Mexican-Americans enrolled and Denise seemed to flourish in that atmosphere, appearing to overcome, to some extent, feelings of being different she experienced in Atmore. The evidence does not reflect, however, that any substantial change in the child’s performance in school as between Alabama and Texas occurred.

The record shows that the mother works as a public health nurse during the day and is at home in the evenings and the weekends. She has two older children and a child approximately fifteen months old living with her. The appellant is not married and when not working devotes most of his time to Denise. During the time Denise lived with appellant, they occupied a house along with appellant’s mother, father, sister and the sister’s seven year old child. Appellant’s mother cared for Denise during the day.

The issue presented to this court is whether the trial judge erred to reversal in returning custody of the child to the mother after temporarily placing custody with the father.

We note at the outset that we have an unusual situation before us in that the decree of September 10, 1975, placing custody with the father, was based upon the trial court’s finding that a specific impediment existed to the mother’s retention of custody. It was clear from that decree that once the impediment was removed, custody of the child would once again be returned to the mother. Appellee testified that such was her understanding and that she had acted in order to conform with the court’s direction.

We do not have occasion to decide whether the trial court had authority to limit its first decree as it did, since the order of September 10, 1975 was not appealed from and cannot be complained of now. However, such a procedure is unusual to say the least, inasmuch as our law is clear that the question of custody is never res judicata. Danford v. Dupree, 272 Ala. 517, 132 So.2d 734 (1961); Evans v. Wilkes, 48 Ala.App. 363, 265 So.2d 145, cert. den. 288 Ala. 742, 265 So.2d 147 (1972). This court said in Oakes v. Cummings, 47 Ala. App. 327, at 331, 253 So.2d 784, at 788 (1971):

“The court is always open for modification of a prior decree as to the support and custody of a minor child. We know of no way a decree in such cases may be so final as to discharge a parent or foreclose future consideration by the court of matters involving the support, custody and welfare of a minor child of which it has properly assumed jurisdiction if proper petition for such consideration be filed.

Thus, it was unnecessary for the trial court to have limited its decree as it did.

In deciding whether the trial court erred in modifying its decree of September 10, 1975 by taking custody of the child away from the appellant-father and placing custody back with the mother, we are guided by the principle that where testimony is taken ore tenus, the finding by the trial court has the weight of a jury verdict and will not be disturbed unless plainly and palpably wrong and contrary to the great weight of the evidence. Gould v. Gould, 55 Ala.App. 379, 316 So.2d 210, cert. den. 294 Ala. 757, 316 So.2d 214 (1975). This is so even though the reviewing court might have reached a different conclusion.

We further note that Alabama courts give considerable weight to the presumption that the mother is best fitted to care for children of tender years, Chandler v. Whatley, 238 Ala. 206, 189 So. 751 (1939); Williams v. Williams, 54 Ala.App. 703, 312 So.2d 396 (1975), but even here the best interest of the child will be the deciding factor for the court, for the fundamental controlling inquiry in a child custody modification proceeding is the welfare and best interest of the child. Talley v. Lott, 283 Ala. 499, 218 So.2d 828 (1969); Carter v. Harbin, 279 Ala. 237, 184 So.2d 145 (1966). It is also the case that a custody decree will not be modified unless changed conditions are shown which justify such modification. Pezent v. Nelson, 52 Ala.App. 9, 288 So.2d 792 (1974); Clarke v. Clarke, 47 Ala.App. 558, 258 So.2d 902 (1972). Thus, in a proceeding to modify a prior custody decree, the court must apply a two-pronged test: whether it is in the best interest of and welfare of the child to change custody, and whether the party seeking modification has alleged and shown a change in conditions which will justify modification.

After carefully examining and assessing the evidence heard by the trial court, we cannot say it was plainly and palpably wrong in awarding Denise’s custody to her mother. The court specifically found it was in the child’s best interest to return to the custody of her mother in that appellee “has been a good mother and has cared for her child satisfactorily in all respects.” Moreover, the court found that the one impediment to appellee’s prior right to custody had been removed in that now appellee is able to offer her child a moral environment. In light of the court’s prior decree, we cannot say that appellee failed to meet her burden of showing changed circumstances or that the trial court erred to reversal in placing custody of the child back with its mother. Hence, the trial court’s decree will be affirmed.

AFFIRMED.

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


author: EMBRY, Justice.

text:
    Ex parte Dionicio QUINTANILLA, Jr.
    SC 2189.
    Supreme Court of Alabama.
    Dec. 30, 1976.
   EMBRY, Justice.

WRIT DENIED.

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


author: HOLMES, Judge.

text:
    James F. HENDERSON v. Thomas Weldon FEARY.
    Civ. 881.
    Court of Civil Appeals of Alabama.
    Oct. 20, 1976.
    Rehearing Denied Nov. 17, 1976.
    Najjar, Najjar, Vincent & Smith, Birmingham, for appellant.
    Philip P. Nelson, Birmingham, for appel-lee.
   HOLMES, Judge.

This is an appeal by the natural father from an order of the Jefferson County Probate Court denying a motion to set aside the adoption of his child.

Title 27, § 3, Code of Alabama 1940, in pertinent part provides:

“No adoption of a minor child shall be permitted without the consent of his parents, but the consent of a parent who has abandoned the child, . . . may be dispensed with, . . .”

There is no contention that James F. Henderson, the natural father of the child and appellant herein, consented to the adoption. Hence, the dispositive issue before this court is whether the evidence introduced in the probate court is sufficient to support a finding of abandonment, thereby negating the consent requirement of Tit. 27, § 3. We find in the negative and accordingly reverse and remand.

Viewing the evidence in the most favorable light for the appellee, the record reveals the following:

James F. Henderson and his wife were divorced in September of 1967. Custody of their child, Jayme, was given to Mrs. Henderson, the natural mother. Thereafter, in November of 1968, Mrs. Henderson married Dr. Thomas W. Feary, appellee herein. The 1967 divorce decree, in addition to awarding custody of Jayme to Mrs. Henderson, required Mr. Henderson to make child support payments and granted him visitation rights.

Mr. Henderson substantially complied with the child support provisions of the decree and also exercised his visitation rights until May of 1971. At that time, he lost his teaching position with Jefferson State College. Thereafter, he fell behind in the monthly payments; and in September of 1971, a decree was entered which revoked, at least temporarily, his visitation rights. Although unemployed, Mr. Henderson paid the child support payments through December of 1971.

In early 1972, he left the state and went to Houston, Texas, where he lived with his brother until September or October of 1972. At that time, he returned to Birmingham, Alabama, where he was employed as a security guard, earning $1.60 per hour.

In July of 1973, after notice to Mr. Henderson by publication, a final decree of adoption was entered whereby Jayme Wheeler Henderson was declared to be legally adopted by Thomas W. Feary. Upon learning of the decree, Mr. Henderson filed a motion to set aside the adoption, which cause was initially set for hearing on May 30,1974, and which was ultimately heard on March 23, 1976.

From January of 1972 until December of 1975, Mr. Henderson made no child support payments whatsoever. Neither did he ever exercise any of his visitation rights during the January 1972 through July 1973 period.

Against this background the trial court found “that during the period subsequent to September 1, 1971, the natural father, James F. Henderson, had abandoned said child.”

Appellee contends that the finding of a probate court based on the examination of witnesses ore tenus is presumed to be correct and will not be disturbed on appeal unless palpably erroneous. This is an established principle of law in Alabama. Davis v. Davis, 278 Ala. 328, 178 So.2d 154. However, this presumption of correctness applies only to findings of fact, Rafield v. Johnson, 294 Ala. 235, 314 So.2d 695, not to conclusions resulting from application of the facts. Robert G. Lassiter & Co. v. Nixon, 218 Ala. 484, 119 So. 17. Here, construing the facts in a manner most supportive of the probate judge’s finding nevertheless requires reversal. The recited facts do not as a matter of law constitute abandonment.

“[Abandonment imports any conduct on the part of the parent which evinces a settled purpose to forgo all parental duties and relinquish all parental claims to the child, and to renounce and forsake the child entirely. . . (2 Am. Jur.2d Adoption § 32)

Here, as was previously stated, there is evidence establishing both that the natural father failed to make child support payments for eighteen months and also that he neglected to exercise his visitation rights for a similar period.

Similar circumstances were before the Supreme Court of Alabama in Schwaiger v. Headrick, 281 Ala. 392, 203 So.2d 114. In this case the natural father moved to set aside adoption proceedings instituted by the spouse of the natural mother, the mother having been granted custody of the child pursuant to a divorce decree rendered two and one-half years earlier. The divorce decree required the father to make monthly child support payments and awarded him visitation rights. He had made only two child support payments in the two and one-half year period preceding the adoption proceeding. No factual data concerning the number of visitations made by the father is set forth in the opinion; however, the court stated:

“The most that can be said is that the natural father quit trying to visit the child; and, also, that after making two monthly payments for the support of the child, as was his obligation by agreement and under the decree, he quit paying.
“We do not construe the conduct of the father to evince a settled purpose to fore-go all parental duties and relinquish all parental claims to the child. The father’s failure to comply with the order for support of the child, . and his failure to visit the child . does not . . . constitute abandonment within the purview of Section 3, Title 27, Code of 1940.” (281 Ala. at 394, 203 So.2d at 115 and 116)

In the instant case, as in Schwaiger, supra, there existed between the parties a great deal of hostility and friction, an elaboration of which would serve no beneficial purpose. Moreover, the facts herein establish a more convincing case for the natural father than in Schwaiger. Here, Mr. Henderson, at the time of the hearing on the motion to set aside the adoption, had completely eliminated the arrearage of child support. See Butler v. Giles, 47 Ala.App. 543, 258 So.2d 739.

Furthermore, there was testimony from Dr. Feary, Mr. Henderson, the latter’s mother, and the child which tended to establish that Mr. Henderson had contacted Jayme to give him presents on at least two occasions during the eighteen months.

Additionally, it would appear that although the child support payments were not made for a term of approximately eighteen months prior to the adoption, ample reason existed for the nonpayment. For the first nine of those eighteen months, Mr. Henderson was unemployed; for the second nine months of the relevant period, he was making only $1.60 per hour and working forty hours per week.

“An abandonment . . . within the purview of the adoption laws must be an intentional abandonment .
“[Voluntary abandonment does not include an act or a course of conduct pursued by a parent which is done through force of circumstances or dire necessity, but it is used more in the sense of a wilful act or course of conduct, such as would imply a conscious disregard or indifference to the child in respect to the parental obligations owed. . . . ” (35 A.L.R.2d at 668-69)

Under the circumstances of this case, we cannot agree with the probate court’s finding that Mr. Henderson’s conduct constituted abandonment, in that the facts display no manifestation of “conscious disregard or indifference” for the child. Put another way, the facts at best only show the father did not visit with the child and did not make child support payments and, as the Supreme Court of Alabama noted in Schwaiger, supra, this does not constitute abandonment. Indeed, we find applicable to these facts a statement made by this court in Butler, supra:

“In that case [Schwaiger], even though the Supreme Court did not provide guidelines as to what constitutes abandonment as the word is used in the adoption statute, it did provide rather clear guidelines as to what does not constitute such abandonment. When such guidelines are applied to the facts in this case we feel impelled to hold that the Probate Court was . . . wrong in finding that ap-pellee [appellant herein] had abandoned his child, . . . ” (47 Ala.App. at 547, 258 So.2d at 742-43)

The disposition of the preceding issue renders unnecessary the resolution of the other issues presented upon appeal.

REVERSED AND REMANDED.

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

      . In September of 1974, Mr. Henderson obtained a teaching position with Tuskegee Institute.


author: SHORES, Justice.

text:
    Ex parte Thomas Weldon FEARY.
    SC 2224.
    Supreme Court of Alabama.
    Dec. 30, 1976.
   SHORES, Justice.

WRIT DENIED.

HEFLIN, C. J. and MADDOX, FAULKNER and BEATTY, JJ., concur.


text:
    Annette IRVIN v. PUBLIC FINANCE COMPANY OF ALABAMA, a corporation.
    Civ. 890.
    Court of Civil Appeals of Alabama.
    Oct. 27, 1976.
    Rehearing Denied Nov. 24, 1976.

      William P. Burgess, Jr. and Charles G. Spradling, Jr., Legal Aid Society of Madison County, Huntsville, for appellant.
    Humphrey & Smith, Huntsville, for ap-pellee.
   HOLMES, Judge.

From an order granting plaintiff’s motion for a summary judgment and denying defendant’s motion for summary judgment on her counterclaim, defendant takes this appeal.

The sole issue presented to this court is whether the promissory note of Public Finance Company of Alabama (hereinafter Public Finance) complies with the provisions of Regulation Z, 12 C.F.R. § 226.-8(b)(5). We find it does not and reverse and remand. Regulation Z requires the lender to disclose:

“(5) A description or identification of the type of any security interest held or to be retained or acquired by the creditor in connection with the extension of credit, and a clear identification of the property to which the security interest relates . . If after-acquired property will be subject to the security ■ interest, or if other or future indebtedness is or may be secured by any such property, this fact shall be clearly set forth in conjunction with the description or identification of the type of security interest held, retained or acquired.”

The following facts were stipulated in the lower court:

On April 5,1973, Annette Irvin, appellant herein and defendant below, executed a promissory note to Public Finance which required repayment of a total sum of $1,342.74 in monthly installments over a thirty-six month period.

Thereafter, on June 30, 1975, Public Finance filed a complaint alleging a default in the payments by Ms. Irvin. Ms. Irvin counterclaimed that Public Finance’s promissory note was violative of 12 C.F.R. § 226.8(b)(5), in that it purported to claim a greater security interest in after-acquired property than is allowed under the pertinent provision of the Alabama Uniform Commercial Code. Tit. 7A, § 9-204(4)(b), Code of Alabama 1940, states:

“No security interest attaches under an after-acquired property clause to consumer goods . . . when given as additional security unless the debtor acquires rights in them within ten days after the secured party gives value.”

The promissory note, under a heading entitled, “DESCRIPTION AND IDENTIFICATION OF SECURITY INTEREST,” declares that the loan is secured by a security agreement on: “Consumer Goods including but not limited to household goods, furniture, appliances, and personal property of all kinds and descriptions and all additions, replacements, and accessories thereto which are hereafter acquired by borrowers.” Immediately before the quoted language the note contains a box which is marked with an “X” to indicate applicability of the clause to the transaction.

As this is a case of first impression in Alabama, certain prefatory comments need be addressed to Regulation Z and the Truth in Lending Act in general.

The Truth in Lending Act (hereinafter, the Act), 15 U.S.C. § 1601 et seq., was enacted in 1968 with the avowed purpose of assuring “a meaningful disclosure of credit terms so that the consumer will be able to compare more readily the various credit terms available to him and avoid the uninformed use of credit. . . . 15 U.S.C. § 1601; Mourning v. Family Publication’s Service, Inc., 411 U.S. 356, 364, 93 S.Ct. 1652, 36 L.Ed.2d 318; Thomas v. Myers-Dickson Furniture Co., 479 F.2d 740, 741 (5th Cir. 1973); Woods v. Beneficial Finance Co. of Eugene, 395 F.Supp. 9, 12 (D.Ore.1975). Congress deemed imperative the disclosure of specific categories of information to insure informed consumer decisions with regard to credit transactions. The mandatory categories of disclosures to be made by creditors in consumer loan transactions are set forth in 15 U.S.C. § 1639(a). Subsection (a)(8) requires disclosure by the lender of “a description of any security interest held or to be retained or acquired by the creditor in connection with the extension of credit, and a clear identification of the property to which the security interest relates.”

To effectuate the purposes of the Act, Congress vested the Board of Governors of the Federal Reserve System with authority to prescribe regulations specifying in greater detail how compliance with the Act might be achieved. 15 U.S.C. § 1604. Regulation Z was promulgated pursuant thereto.

Congress further sought to insure compliance with the Act by providing for civil liability for any creditor who failed to make any disclosure required by the Act. Likewise, Congress placed liability on the lender for reasonable attorney fees incurred by the consumer in successfully enforcing his rights, thereby encouraging private actions by individuals to promote compliance with the Act. 15 U.S.C. § 1640(a)(2). As stated by the court in Ratner v. Chemical Bank New York Trust Company, 329 F.Supp. 270, 280 (S.D.N.Y.1971), “[T]he scheme of the statute . . . is to create a species of ‘private attorney general’ to participate prominently in enforcement.” Accord Sosa v. Fite, 498 F.2d 114 (5th Cir. 1974); Jones v. Seldon’s Furniture Warehouse, Inc., 357 F.Supp. 886 (E.D.Va.1973).

Courts have taken to heart the purpose of the Act, stating both that it is to be liberally construed in favor of the consumer, Hannon v. Security Nat. Bank, 537 F.2d 327 (9th Cir. 1976); Sellers v. Wollman, 510 F.2d 119 (5th Cir. 1975); Gerasta v. Hibernia Nat. Bank, 411 F.Supp. 176 (E.D.La. 1975); Allen v. Beneficial Finance Co., 393 F.Supp. 1382 (N.D.Ind.1975), and also that it is to be strictly enforced. Redhouse v. Quality Ford Sales, Inc., 511 F.2d 230 (10th Cir. 1975); Powers v. Sims and Levin Realtors, 396 F.Supp. 12 (E.D.Va.1975).

In a similar vein, numerous instances exist where the court, though stating that the violation is somewhat technical in nature, declares that the lender has not complied with the strict terms of the Act and is therefore liable for the penalty provided therein. Pennino v. Morris Kershman & Co., 526 F.2d 367 (5th Cir. 1976); Powers, supra. In short, the Act “reflects a transaction in Congressional policy from a philosophy of ‘let-the-buyer-beware’ to one of ‘let-the-seller-disclose.’ ” Allen, supra, at 1384.

Having placed the Act in perspective, we turn now to the contentions of the litigants in the instant case. Ms. Irvin’s argument is as follows:

Title 7A, § 9-204(4)(b), Alabama Code, prohibits a creditor from obtaining a security interest in consumer goods acquired by the debtor more than ten days after the secured party has given value. Despite the unequivocal language of the Code, Public Finance’s promissory note professes to attach to consumer goods “of all kinds and descriptions and all additions, replacements, and accessories thereto which are hereafter acquired by borrower.” Indubitably, this cannot constitute a “clear identification” of the property to which the security interest attaches in that it claims an attachment to property which is plainly disallowed by state law. Put another way, this is an express overstatement by the lender concerning the consumer property which can serve as collateral, the very type of misrepresentation the Act sought to prohibit. Accordingly, counsel for Ms. Irvin concludes, the note is violative of 12 C.F.R. § 226.8(b)(5). Counsel’s excellent brief notes numerous cases holding the lender liable for failure to disclose the ten-day limitation on attachment to after-acquired goods. Pollock v. General Finance Corp., 535 F.2d 295 (5th Cir. 1976); Tinsman v. Moline Beneficial Finance Co., 531 F.2d 815 (7th Cir. 1976); In re Dunne, 407 F.Supp. 308 (D.R.I.1976); Johnson v. Associates Finance, Inc., 369 F.Supp. 1121 (S.D.Ill.1974).

Public Finance in its well reasoned brief seeks to distinguish the above cited cases, adverse to its interest herein, by arguing that they were premised on an erroneous interpretation of Federal Reserve Board Letter 829, dated August 22, 1974. This contention may be put to rest by the following excerpt from Federal Reserve Board Letter No. 1053, dated May 28, 1976, by Jerauld C. Kluckman, Chief of the Truth In Lending Section.

“It appears from your letter that these creditors are disclosing a security interest in ‘all after-acquired property’ of ‘all after-acquired property including all attachments, substitutions, and replacements.’ If, in fact, the applicable State law only permits acquisition of a security interest in after-acquired property acquired within a certain period of time, then such a statement would be improper under Regulation Z. As our previous letter indicates, a simple disclosure of the fact that after-acquired property may be subject to the security interest would be sufficient to comply with the clear language of § 226.8(b)(5), without an explanation of the various conditions and limitations on such interests which may be imposed by the applicable State law. However, the fact that the creditor need not disclose such limitations and conditions does not mean that the creditor may affirmatively misstate the scope of the security interest, in disregard of those limitations. If, in fact, the creditor discloses an interest in ‘all after-acquired property,’ when the interest would actually attach only to property acquired by the borrower within a certain period of time, such a disclosure would be inaccurate and misleasing in violation of Regulation Z.” [Emphasis supplied.]

While the Board’s staff letters do not carry the weight of law; nevertheless, great deference is due the Board’s construction of its own regulations promulgated under its own authority. Johnson v. McCrackin-Sturman Ford, Inc., 527 F.2d 257 (3d Cir. 1975); Bone v. Hibernia Bank, 493 F.2d 135 (9th Cir. 1974); Philbeck v. Timmers Chevrolet, Inc., 499 F.2d 971 (5th Cir. 1974).

The claiming of a security interest in all “household goods, furniture, appliances, and personal property of all kinds and descriptions and all additions, replacements, and accessories thereto which are hereafter acquired by borrowers” by Public Finance clearly constitutes an affirmative misstatement of the security interest it retained.

Moreover, even absent Letter No. 1053, courts have held language similar to that in question violative of Regulation Z. See Pollock; Tinsman; In re Dunne; and Johnson, supra; and Sneed v. Beneficial Finance Co. of Hawaii, 410 F.Supp. 1135 (D.Haw.1976).

The crux of the court’s rationale for holding the lender liable under these circumstances is quite simple. Claiming to obtain an interest in all after-acquired property fails to remotely approach disclosure of the accurate description of property subject to the lender’s security interest required by the Regulation.

We point out that this decision does not require in every instance a disclosure by the lender that his security interest is limited to those consumer goods obtained by the debt- or within ten days after the lender has given value. Rather, we limit our holding to the particular facts of this case. Here, the language contained in the promissory note constitutes an affirmative misstatement of the security interest retained by Public Finance.

It follows that the court erred in denying Ms. Irvin’s motion for summary judgment on her counterclaim.

REVERSED AND REMANDED FOR PROCEEDINGS NOT INCONSISTENT WITH THIS OPINION.

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


author: BLOODWORTH, Justice.

text:
    Ex parte PUBLIC FINANCE COMPANY OF ALABAMA, a corporation.
    SC 2244.
    Supreme Court of Alabama.
    Dec. 17, 1976.
   BLOODWORTH, Justice.

WRIT DENIED, Ala.Civ.App., 340 So.2d 811.

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


author: WRIGHT, Presiding Judge.

text:
    Calvin INGRAM v. BANK OF BREWTON.
    Civ. 926.
    Court of Civil Appeals of Alabama.
    Dec. 8, 1976.
    Kenneth Cooper, Bay Minette, for appellant.
    Paul D. Owens, Jr., Brewton, for appel-lee.
   WRIGHT, Presiding Judge.

Bank of Brewton, assignee of a sales contract, note and security agreement, made between Calvin Ingram and Golden Motors, brought suit to recover an automobile. Ingram filed answer charging violation of Title 5, Sec. 317, Code of Alabama (1940) (Mini-Code) and seeking recovery of the liabilities for charging an excess finance charge set in Title 5, Sec. 330, Code. After trial orally before the court, judgment was entered for the property (an automobile) sued for, but directing the forfeiture of all finance charges charged to Ingram in the contract. Ingram appeals contending error in the failure of the court to find from the evidence that there was an excess finance charge made in deliberate violation of or in reckless disregard of the statute and imposing the penalties provided for such act. We affirm.

The record on appeal consists of the clerk’s record and an agreed statement as to the evidence submitted in accord with Rule 10(c), Alabama Rules of Appellate Procedure.

It was stipulated at pre-trial conference that Golden Motors sold an automobile to Ingram; a note and security agreement were executed by Ingram; a disclosure statement was prepared by the seller, indicating the amount financed to be $2,300, with finance charge of $460, for a total of $2,760 to be paid in 23 monthly installments; of the amount shown as finance charge, $110.40 was for credit life insurance; that sum was actually paid to the insurance company-by the assignee, Bank of Brewton; Ingram, at date of trial, was $690 in arrears on the contract.

Based upon the stipulation, the trial court determined the sole issue for trial to be whether there had been excessive finance charges in the contract in violation of Title 5, Sec. 330, Code.

At trial, Ingram introduced 41 contracts, with disclosure statements, entered into between Golden Motors and purchasers of automobiles, which had subsequently been assigned to Bank of Brewton. Investigators with the State Insurance and Banking Departments testified that each of the 41 contracts included credit life insurance, usually on the debtor and his wife with improper premiums; that the charge for credit life insurance was not shown as a separate item on the disclosure statements but was included in the amount of the finance charge; that the amount shown as a finance charge appeared to be derived from a 10% add on interest charge for 24 months.

Bank of Brewton presented witnesses who testified that any error in the contract was accidental in that the premiums for credit life insurance were erroneously entered as an addition to the finance charge instead of as an itemized charge which should have been added to the amount financed; that if the amount of the insurance premium were deducted from the amount shown as finance charge, the actual finance charge would not exceed the 8% add on permitted by the statute.

It was from the evidence, related above in capsule form, that the trial court found that Ingram had been charged excess finance charges and that as a penalty the Bank should forfeit all finance charges under the contract. However, the court permitted the deduction of the credit life insurance premium from the amount shown as finance charge on the disclosure statement. The contract showed finance charges of $460 on an amount financed of $2,300. Deducting insurance premium of $110.40 leaves $349.60. Such amount was found by the court to be the finance charge to be forfeited. Ingram says that requiring such forfeiture is not enough. The court should have found that the excessive finance charge was made in deliberate violation of the statute, declared the contract void and required the Bank to return all principal as well as all finance charges.

We must now look to the statute: Title 5, Sec. 330 is as follows:

“Liabilities of creditor making excess finance charge. — Any creditor charging a finance charge in excess of the amount authorized herein except as the result of an accidental and bona fide error in computation, shall forfeit his right to any finance charge and shall refund to the debtor the total amount of the finance charge, which may be done by reducing the amount of the debtor’s principal obligation. If the debtor is entitled to a refund and the creditor refuses to refund within a reasonable time after written demand, the debtor may recover a penalty of either twice the finance charge or ten times the amount of the excess charge, whichever is greater, but in any event not less than $100, together with a reasonable attorney’s fee. If the creditor has made an excess finance charge in deliberate violation of or in reckless disregard for this chapter, the creditor shall have no right to receive or retain the principal or any finance charge whatsoever and the transaction shall be void. No action under this section may be brought more than one year after due date of the last scheduled payment of the agreement pursuant to which the charge was made or in the case of open-end credit plans, one year after the excess charge is made.”

The court below entered judgment for Ingram in the amount of $349.60. It stated that such amount represented forfeiture of the finance charge. We must conclude that the court found that there was an excessive finance charge and that such charge did not result from an “accidental or bona fide error in computation.” There is no appeal from this finding of the court by either ■ party. Therefore, we accept it as correct without consideration.

Ingram submits that the court erred in not further finding that the excess finance charge was made “in deliberate violation of or in reckless disregard of the statute.” Whether the making of an excess charge was made with deliberateness or reckless disregard is a question of fact to be answered from the evidence. The trial court heard the evidence which could be said to be conflicting. Ingram produced records of 41 other contracts made by the Bank’s assignor, which appeared to have the same or similar defalcations as his own. The argued inference is that such multiple instances showed a pattern of intentional and deliberate violations of the statute.

The Bank, in response, showed that during the period out of which the 41 bad contracts came, there were, in fact, 209 other contracts with which no fault was found by the investigators. Thus, there was an 80% to 20% ratio of good to bad. The inference therefore to be drawn was that the defalcation was not deliberate but only occasional and accidental.

The court having heard the evidence failed to make the finding desired and contended for by Ingram. It is the law that the finding of the court on a question of fact is presumed correct. Such finding has the standing of a jury verdict. W. T. Ratliff Company, Inc. v. Purvis, 292 Ala. 171, 291 So.2d 289. It will not be set aside unless, after allowing all reasonable presumption in favor of its correctness, there is such a preponderance of the evidence against it as to convince the reviewing court that it is palpably wrong and unjust. Prescott v. Martin, Ala., 331 So.2d 240. We find no cause in this case to set aside the judgment of the trial court. We therefore affirm.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.

      . Some of the language of this section of the “Mini-Code” recalls our statement in the recent case of Welch v. G. F. C. Credit Corporation, Ala.Civ.App., 336 So.2d 1346, that “. the ‘Mini-Code’ cannot be referred to as model legislation.”

      . Ibid.


text:
    Gary CHANDLER v. Katrina HUNTER.
    Civ. 905.
    Court of Civil Appeals of Alabama.
    Dec. 15, 1976.

      William W. Cardwell, Jr., Gadsden, for appellant.
    J. Richard Carr, Gadsden, for appellee.
   BRADLEY, Judge.

This appeal comes from the Circuit Court of Etowah County. Katrina Hunter brought suit against Southern Mobile Homes, Inc., a corporation, and Gary Chandler individually for damages resulting from the disintegration of a mobile home purchased from the defendants. The complaint contained three counts: the first alleged fraud based on misrepresentations made to Mrs. Hunter by the defendants with regard to the condition of the mobile home; the second alleged breach of a statutory duty and an implied duty on the part of the defendants to exercise good faith in their dealings with Mrs. Hunter; and the third alleged breach of an implied warranty of fitness for a particular purpose.

At the close of the evidence, the defendants moved for a directed verdict on all three counts, stating grounds for the motions, and Gary Chandler individually moved for a directed verdict as to all three counts. All motions were denied. The jury returned a general verdict against Mr. Chandler only for $3,000, and he appeals from that judgment.

The facts appear from the record to be as follows. Sometime in December 1975 Mrs. Hunter and her mother visited the lot of Southern Mobile Homes, Inc., and Mrs. Hunter selected a mobile home. During the course of conversation with Gary Chandler, the president of Southern Mobile Homes, Mrs. Hunter told Chandler that she could not afford the mobile home but that Donald E. Truett, her former husband, would buy it for her. Mr. Chandler drew up the necessary papers and the following day Mrs. Hunter returned with Mr. Truett to Southern Mobile Homes. Mr. Truett signed the papers, including a UCC-1 financing statement, thereby purchasing a Royal mobile home in his name. Mrs. Hunter signed no papers and incurred no obligation or liability for the indebtedness on the trailer.

A 1969 Craftsman mobile home was traded on the purchase of the Royal mobile home. Mrs. Hunter had been living in that mobile home, but Mr. Truett had been making the mortgage payments on it and that mobile home was owned solely in his name. The monthly payments on the Craftsman mobile home were made pursuant to a decree divorcing Mr. Truett and Mrs. Hunter and requiring that payments on the mobile home be made in lieu of child support payments. Mrs. Hunter and Mr. Truett intended between themselves to continue the arrangement under the divorce decree on the new Royal mobile home, with Mr. Truett making payments on the mobile home directly to the mortgagee rather than to Mrs. Hunter. It is unclear whether Mr. Chandler understood this arrangement. However, he did know that Mrs. Hunter was to live in the mobile home and that Mr. Truett was purchasing it for her.

At the time of the sale of the Royal mobile home to Mr. Truett, Southern Mobile Homes was a corporation and Mr. Chandler was its president. Chandler did not sell mobile homes for himself individually. The checks written, the bill of sale on the Craftsman mobile home, and all other papers regarding the sale were made in the name of the corporation.

There was conflicting testimony as to what representations were made about the Royal mobile home. Mrs. Hunter testified that Mr. Chandler told her that the mobile home was well built, that the cabinets were “real good” and would not warp, that he personally “stood behind” the mobile home, and that there was a one year warranty on the mobile home. Mrs. Hunter’s mother stated that Mr. Chandler had said that new mobile homes carry a one year warranty, while used mobile homes are guaranteed only for ninety days. He also said that he “always backs up” his mobile homes. The Royal mobile home selected by Mrs. Hunter was new at the time.

Mr. Chandler admitted he said that the mobile home was well built, but denied he personally guaranteed the mobile home. He further testified he told Mrs. Hunter only that the mobile home carried a manufacturer’s warranty for ninety days and that the appliances were guaranteed by their various manufacturers for one year.

The damage began with delivery of the Royal mobile home. A taillight was smashed and one side of the mobile home was creased. Nonetheless Mrs. Hunter moved in. Thereafter things began to fall apart. The front storm door either fell off or was blown off by wind. The dishwasher did not operate properly and could not be used. The carpet pulled away from the walls. Several doors fell off their hinges. The ceiling in one bedroom fell in, was replaced by Mrs. Hunter, and fell in again. The kitchen ceiling was in the process of falling. Cracks up to half an inch wide appeared in the walls. Wind blew through cracks in the windows. The window in the bathroom shower rotted away and the toilet lid cracked. Several doors to the kitchen cabinets fell off and some of the cabinets came loose from the wall. The frost-free refrigerator did not operate properly.

Mrs. Hunter continued to live in the mobile home for twelve months after its purchase. Mr. Truett made all the monthly mortgage payments with the exception of one payment made by Mrs. Hunter. After twelve months Mrs. Hunter moved out of the trailer and let it be repossessed. She then brought this action to recover damages.

Mr. Chandler contends on appeal that the trial court committed reversible error in denying the defendants’ motion for directed verdict (1) as to the fraud count because there was no proof of privity of contract between the parties, since the contract was between Donald E. Truett and Southern Mobile Homes, (2) as to the count of failure to deal in good faith because Title 7A, Section 1-203, Code of Alabama 1940 (Recomp. 1958), is not ground for a cause of action in Alabama, and (3) as to the contract count because there was no evidence of privity of contract between the parties. Chandler also urges error in the trial court’s denial of his motion for a directed verdict as to all three counts on the ground that there was no evidence that he acted in any capacity other than as an agent for Southern Mobile Homes. Finally, Chandler maintains that the trial court erred in refusing to give certain of the defendants’ requested charges.

We hold that the trial court erred to reversal in its failure to direct a verdict in favor of the defendants on the second count of the complaint; however, we will write to the other issues raised by appellant Chandler in order to clarify those issues prior to a new trial.

The second count of the complaint appears to allege a cause of action arising from the defendants’ failure to deal in good faith as required by Title 7A, Section 1-203, supra. That section states:

“Every contract or duty within this title imposes an obligation of good faith in its performance or enforcement.”

Failure to act in good faith in the performance or enforcement of contracts or duties arising under Title 7A does not state a claim for which relief may be granted in Alabama. Nor have we been able to discover a jurisdiction which allows recovery of damages under this general provision of the Uniform Commercial Code. There is no indication, either in the text or the comments, that section 1-203 was intended to be remedial rather than directive. We conclude that the second count of Mrs. Hunter’s complaint does not state a claim for which relief can be granted.

A Rule 50 motion for directed verdict has been recognized as a proper vehicle for withdrawing a case from the jury in federal practice where the cause of action was groundless and there was a total lack of proof at a trial on the merits. United States v. Winscott, 238 F.2d 519 (7th Cir. 1956). The defendants’ motion for directed verdict as to the good faith claim conformed with the requirements of Rule 50(a), ARCP, in that it was timely made and specific grounds were stated. Furthermore, a Rule 50(a) motion was proper to remove the groundless claim from the jury’s consideration. We find, therefore, that the trial court erred in its refusal to grant this motion.

The trial court’s error is reversible under the decision in Nashville, C. & St. L. Ry. Co. v. Farrell & Braley, 14 Ala.App. 380, 70 So. 986 (1915). That court held that where a trial court erred in refusing the affirmative charge as to a count not supported by the evidence, and the jury returned a general verdict not stating the count upon which the verdict was based, the case must be reversed. The rationale, which we believe to be sound, is that the jury could have founded its verdict upon the unproven claim. In the case at bar, we cannot say the jury awarded damages to Mrs. Hunter because it believed that the contract warranty had been breached or that false representations were made, and did not believe that the defendants failed to deal with Mrs. Hunter on a good faith basis. Therefore, we hold that the trial court must be reversed for its refusal to direct a verdict in favor of the defendants on the claim that the defendants Gary Chandler and Southern Mobile Homes failed to deal with Mrs. Hunter on a good faith basis as directed by Title 7A, Section 1-203, supra.

The essence of Chandler’s motions for directed verdict with regard to the first and third counts of the complaint is that Mrs. Hunter cannot maintain an action based on the contract of sale of the mobile home since she was not a party to the contract and incurred no obligations under the contract. We note in passing that Chandler is mistaken in his ground of objection with regard to the first count, since the first count is in tort for fraudulent representation, not in contract.

It is undisputed that Mrs. Hunter was not herself a party to the contract to purchase the Royal mobile home. Rather, Mrs. Hunter maintains that she is a third party beneficiary to the contract and therefore entitled to bring an action on the contract. She relies on the principle stated in Em ployers Ins. Co. of Alabama v. Rhodes, 240 Ala. 226, 198 So. 616 (1940):

“By a long line of decisions in this jurisdiction, as well as elsewhere, the rule is established that one for whose benefit a contract is made may, although not a party to the agreement, and not furnishing the consideration therefor, maintain an action thereon against the promisor. [Citations omitted.]”

This rule was most recently reiterated in Harris v. Board of Water & Sewer Com’rs of City of Mobile, 294 Ala. 606, 320 So.2d 624 (1975), with the additional requirement that the third party must have been intended to be directly and not incidentally bene-fitted.

The evidence clearly reveals that the contract to purchase the Royal mobile home was made for Mrs. Hunter’s benefit. Under the terms of a divorce decree, Mr. Truett was to furnish Mrs. Hunter a place to live in lieu of making child support payments. Mr. Truett bought the mobile home for that purpose and no other. He never lived there himself nor had any personal benefit from the ownership of the mobile home. We conclude that under these facts Mrs. Hunter is a third party beneficiary of the contract between Donald E. Truett and Southern Mobile Homes, and that she stands in privity to that contract.

Chandler also says that Mrs. Hunter does not fall within the protection of Title 7A, Section 2-318, Code of Alabama 1940 (Reeomp.1958), which provides:

“A sellers’ warranty, whether express or implied, extends to any natural person if it is reasonable to expect that such person may use, consume or be affected by the goods and who is injured in person by breach of the warranty. A seller may not exclude or limit the operation of this section.”

He points out that Mrs. Hunter has been injured economically, not personally. Title 7A, Section 2-318 has been held to extend a sellers’ warranty only to those injured in person by breach of the warranty; there is no right of action on an implied warranty of merchantability of fitness for use where the injury sustained was economic unless there is privity of contract. Harnischfeger Corp. v. Harris, 280 Ala. 93, 190 So.2d 286 (1966); Wear v. Chenault Motor Co., 52 Ala.App. 382, 293 So.2d 298, cert. den. 292 Ala. 756, 293 So.2d 301 (1974).

The short answer to Chandler’s contentions is that Mrs. Hunter is in privity of contract due to her status as a third party beneficiary. Therefore, Mrs. Hunter does not fall within the reach of the decisions relied upon by Chandler.

Chandler next contends that the trial court erred in refusing his motion for directed verdict as to himself individually on all three counts of the complaint, i. e. fraudulent representation, failure to deal with good faith, and breach of warranty, because he acted only as an agent for Southern Mobile Homes.

As we have already held, the trial court reversibly erred in its failure to direct a verdict in favor of the defendants, including Chandler individually, on the good faith count. However, there was no error on the part of the trial court with regard to its ruling on the first count, fraudulent representation.

It is a well settled rule in this state that a person is liable for the torts which he or she commits, regardless of the capacity in which that person acts. As stated in Finnell v. Pitts, 222 Ala. 290, 132 So. 2, 4 (1930), at 293:

“When a person commits a tort, it is wholly immaterial upon the question of his liability, whether he was acting officially or personally.”

The reason for finding personal liability is that the agent personally has committed a wrong, independent of the principal’s wrongdoing. This rule was reiterated in Southeastern Const. Co. v. Robbins, 248 Ala. 367, 27 So.2d 705 (1946). We conclude, therefore, that the issue of Chandler’s personal liability for making the alleged false representations correctly went to the jury.

Chandler also maintains that he should have received a directed verdict on the contract count, since he was acting only as an agent. He claims to fall within the rule of Alabama Traction Co. v. Selma Trust & Savings Bank, 217 Ala. 653, 117 So. 19 (1928), and Gillis v. White, 214 Ala. 22, 106 So. 166 (1925):

“An agent whose status is understood by the other contracting party, and who has authority to bind his principal, does not bind himself as obligor.” 217 Ala. at 656, 117 So. at 21.

However, we cannot say that, in light of more recent decisions, the trial court erred in refusing to direct a verdict in favor of Chandler individually as to the contract count. In Sealy v. McElroy, 288 Ala. 93, 257 So.2d 340 (1972), an agent and his principal were both sued on a breach of warranty claim for false representations made by the agent. The representations made were similar to those involved in the case before us: the agent stated that the house in question was a good house, made of good materials and was of good workmanship, and that the principal would “stand behind” the house. The supreme court held that a judgment against the agent was contrary to law and that only the principal should be held accountable, since the representations made concerning the house were made on behalf of the principal and there was no evidence that the agent intended to bind himself personally on the warranty. The court stated:

“An agent is presumed to intend to bind his principal only and to incur no personal liability and unless an intention to substitute or superadd his personal liability for or to that of his principal is clearly shown, he will not be bound in his individual capacity.” 288 Ala. at 104, 257 So.2d at 350.

In the case at bar there was conflicting evidence whether Mr. Chandler intended to bind himself personally on the warranty. He denied that allegation, but Mrs. Hunter testified that Chandler said he personally backed the mobile homes which he sold. Therefore, the question properly was sent to the jury for resolution. We think the trial court would have erred had it granted Chandler’s motion for directed verdict on the contract claim. A directed verdict under Rule 50 should not be granted if there is any conflict in the evidence for the jury to resolve. McLarty v. Wright, 56 Ala.App. 346, 321 So.2d 687 (1975).

The final issue raised by Chandler is that the trial court erred in refusing to give certain written charges requested by the defendants. Rule 51, ARCP, requires:

“No party may assign as error the giving or failing to give a written instruction . . . unless he objects thereto before the jury retires to consider its verdict, stating the matter to which he objects and the grounds of his objection.”

Nowhere in the record does it appear that counsel for Mr. Chandler objected to the court’s failure to give the requested written instructions listed in the stated assignments of error. Thus, Mr. Chandler may not raise that issue on appeal.

REVERSED AND REMANDED.

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


text:
    Gloria MILLER v. Thomas MILLER.
    Civ. 952.
    Court of Civil Appeals of Alabama.
    Dec. 22, 1976.

      Howard B. Warren, of Simmons & Tor-bert, Gadsden, for appellant.
    Edward Cunningham, Gadsden, for appel-lee.
   WRIGHT, Presiding Judge.

This is an appeal by the wife from the alimony provisions of a judgment of divorce. We affirm.

The issue is whether the trial court abused its discretion in granting judgment to the wife for only $50 per month as alimony.

The court divorced the parties for incompatibility. There was testimony that the breakdown of the marriage was due to adulterous conduct by the husband. The husband admitted such conduct after the separation but denied it occurred before the separation.

Husband is retired from the military and is employed by a private club. His gross income is approximately $1,400 per month. Wife is employed as cashier of a bank. Her income is $10,000 per year. The only child of the marriage is a girl, now 21 years of age.

After oral hearing, the trial court gave to the wife most of the household furnishings, one automobile, alimony of $50 per month and attorney fees of $250. The home had previously been sold by the parties and the equity applied to joint debts of the parties. The wife submits that the grant of alimony is so insufficient as to constitute an abuse of discretion.

The charge of abuse of discretion is primarily premised upon the contention that the trial court ignored the fault of the husband. In our view, the ground for that contention is more imagined than real.

Even though testimony as to adultery of the husband was permitted over objection, the wife concludes that the trial court failed to consider it in awarding alimony. Such conclusion is merely opinion without objective support.

This court in Tyler v. Tyler, 52 Ala.App. 430, 293 So.2d 856 (1974), noted six factors which might be considered by a court in the granting of alimony. Appellant has enumerated those six factors in brief. She submits improper consideration of only one by the trial court. Her argument implies that only the sixth factor, the conduct of the parties with reference to the cause of the divorce, is sufficiently weighted in her favor to tilt the scales of alimony. We are inclined to accept such implication.

Title 34, Sec. 31, Code of Alabama (1940), authorizes the judge to exercise his discretion and grant alimony to the wife if she has no separate estate or if it be insufficient for her maintenance. In this case, the earning Capacity, age and health of the parties are relatively equal. Neither has any real property or significant personal property. There are no minor children. The testimony is in conflict as to the actual cause of the divorce, though the weight favors the wife. Our decision upon review of the exercise of the trial court’s discretion may not be made upon our own view of the weight of the evidence or the credibility of the witnesses. We are not at liberty to determine what we would have done had we been the trial judge. Locklear v. Nash, 275 Ala. 95, 152 So.2d 421 (1963). We review the exercise of the trial court’s discretion only to determine if the judgment is so unsupported by legal evidence as to be arbitrary and unjust. Hallman v. Hallman, 51 Ala.App. 460, 286 So.2d 863 (1973).

The trial court has granted more than nominal alimony to the wife. The judgment is not final except as to circumstances then before the court. DuBoise v. DuBoise, 275 Ala. 220, 153 So.2d 778 (1963). Should future circumstances so differ from those of the present as to merit modification in favor of either party, the court may do so on proper petition and notice. O’Dell v. O’Dell, 57 Ala.App. 185, 326 So.2d 747 (1976).

Finding no abuse of discretion, we affirm.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


author: BOWEN W. SIMMONS, Supernumerary Circuit Judge. BOOKOUT, Judge TYSON, Judge

text:
    Robert Earl RUCKER v. STATE.
    8 Div. 700.
    Court of Criminal Appeals of Alabama.
    May 4, 1976.
    Rehearing Denied June 1, 1976.

      Cloud, Berry, Abies, Blanton & Tatum, Huntsville, for appellant.
    William J. Baxley, Atty. Gen., and Joel E. Dillard, Asst. Atty. Gen., for the State.
   BOWEN W. SIMMONS, Supernumerary Circuit Judge.

Jury and verdict convicted appellant-defendant on an information filed in the circuit court wherein he was charged with bookmaking or pool-selling or keeping a place for such practices. Being more specific, he was charged with housing and operating facilities for betting on the outcome of sporting events; baseball, football, horse racing, etc. Title 14, § 261 and § 278, Recompiled Code 1958. The jury left the punishment to the court. The trial judge sentenced him to imprisonment in the county jail for “six (6) months at hard labor.”

The prosecution was initiated in the General Sessions Court of Madison County wherein he entered a plea of not guilty and upon issue joined on such plea, was convicted and lawful punishment imposed and judgment entered therefor. He appealed from this judgment to the circuit court, demanded a jury trial, and again was convicted on an information filed by the District Attorney.

ON MOTION TO SUPPRESS

Defendant filed a motion to quash a search warrant that was issued and to suppress evidence. This motion was heard on evidence taken outside the presence of the jury. The motion at the conclusion of the hearing was overruled.

I

Appellant here complains that the trial court committed reversible error in refusing to require the disclosure of the identity of the confidential informer who furnished the officer “obtaining the search warrant and the arresting officers” with the only possible basis for probable cause.

With this last statement, we are not in accord. There were other bases for “probable cause.” We quote Sections 3 to 9 of the affidavit which is a predicate relied on by the magistrate (the judge of the General Sessions Court) for issuing the search warrant that authorized the search of the designated premises that housed the gambling facilities:

“(3) Affiant further says that a confidential informant stated to him that on December 15,1974, he called telephone number 539-3407 and obtained line information pertaining to professional football games being played that weekend; and a few minutes later, called telephone number 539-3408 and placed a bet on a professional football game to be played that weekend.
“(4) Affiant further says that telephone numbers 539-3407 and 539-3408 are listed to Robert Earl at 2101 Kildare Street, Apartment # 6, Huntsville, Alabama.
“(5) Affiant further says that Federal Bureau of Investigation agents stationed in Huntsville, Alabama, stated that they have information that Robert Earl Ruck-er is receiving bets on sporting events at telephone numbers 539-3407 and 539-3408 at 2101 Kildare Street, Apartment # 6, Huntsville, Alabama.
“(6) Affiant further says that on November 14, 1974, that the Huntsville News published articles stating that Robert Earl Rucker was involved in a bookmaking operation and was using telephone numbers 539-3797 and 539-3798.
“(7) Affiant further says that he has knowledge of persons operating a bookmaking operation frequently changing telephone numbers to disguise the operation.
“(8) Affiant further says that Robert Earl Rucker is known to keep on his person a small notebook with the code numbers for the names of the bettors who place bets with him.
“(9) Affiant further says that Robert Earl Rucker has the reputation of being a gambler among law enforcement officers in Madison County, Alabama.”

The Supreme Court of the United States in Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639, made some observations which we quote:

“What is usually referred to as the informer’s privilege is in reality the Government’s privilege to withhold from disclosure the identity of persons who furnish information of violations of law to officers charged with enforcement of that law. Scher v. United States, 305 U.S. 251, 254, 59 S.Ct. 174, 176, 83 L.Ed. 151; In re Quarles and Butler, 158 U.S. 532, 15 S.Ct. 959, 39 L.Ed. 1080; Vogel v. Gruaz, 110 U.S. 311, 316, 4 S.Ct. 12,14, 28 L.Ed. 158. The purpose of the privilege is the furtherance and protection of the public interest in effective law enforcement. The privilege recognizes the obligation of citizens to communicate their knowledge of the commission of crimes to law-enforcement officials and, by preserving their anonymity, encourages them to perform that obligation.
* * * * * *
“A further limitation on the applicability of the privilege arises from the fundamental requirements of fairness. Where the disclosure of an informer’s identity, or of the contents of his communication, is relevant and helpful to the defense of an accused, or is essential to a fair determination of a cause, the privilege must give way. In these situations the trial court may require disclosure and, if the Government withholds the information, dismiss the action. Most of the federal cases involving this limitation on the scope of the informer’s privilege have arisen where the legality of a search without a warrant is in issue and the communications of an informer are claimed to establish probable cause. In these cases the Government has been required to disclose the identity of the informant unless there was sufficient evidence apart from his confidential communication.
* * # * * *
“We believe that no fixed rule with respect to disclosure is justifiable. The problem is one that calls for balancing the public interest in protecting the flow of information against the individual’s right to prepare his defense. Whether a proper balance renders nondisclosure erroneous must depend on the particular circumstances of each case, taking into consideration the crime charged, the possible defenses, the possible significance of the informer’s testimony, and other relevant factors.” (Footnotes omitted.) (Emphasis supplied.)

We hold that there was sufficient information apart from the informer’s communication to support issuance of the search warrant. We refer to paragraphs 5, 6, 7, 8 and 9, supra. There was no question of identity here involved.

Taking into consideration the facts in this case, the crime charged, the possible defenses, the significance of the informant’s communication, and other relevant facts, we think in this case the furtherance and protection of public interest far outweighs any value to defendant’s defense. He did not take the stand and assert any defense to this charge. He preferred to remain silent, as he had a constitutional right to do, and rely on a technical defense. We fail to see how he was prejudiced by a nondisclosure of the informer’s identity. The search warrant was lawfully authorized by the affidavit showing the existence of probable cause. There are numerous cases on the subject, but each one presents a different factual situation that would unduly lengthen this opinion. We do not see in this case that defendant suffered any prejudice by the nondisclosure of the informer’s identity.

II

Appellant next asserts that the court erred in permitting, over his objection, the introduction into evidence of the search warrant, for want of proper identifying evidence by the officer who served the instrument. We think identifying evidence was sufficiently adduced to justify the admission in evidence of such warrant and the return of only one warrant and only one affidavit was made. We decline to hold that such admissions resulted in prejudice to the defendant.

III

In a third assignment, appellant contends that he was denied due process under the Fourth Amendment to the United States Constitution in the admissibility “of the evidence of the fruits of the search based upon a search warrant with the accompanying affidavit issued without probable cause.”

We have held, supra, that the affidavit showed probable cause. We hold that the affidavit, supra, set forth the existence of probable cause of sufficient substance to authorize issuance of the search warrant.

IV

This assignment asserts the trial court committed reversible error in not arraigning the defendant prior to the time of trial. Under the circumstances, we are not in accord with this contention.

We think it is reasonably clear from the record and the evidence taken on defendant’s motion for a new trial that the defendant was not formally arraigned in the circuit court and called on to plead to the information which the District Attorney filed pursuant to law. It does appear that defendant, in the presence of his attorney specifically waived reading the information to him and stated to the court that he understood that he was charged with bookmaking. (Tr. 51-52)

After this waiver, the trial proceeded on a regular basis. The State introduced a witness to establish the allegations contained in the information and the defense cross-examined the witness as though a formal plea of not guilty had been entered. The defendant suffered no disadvantages by reason of the absence of a formal plea of not guilty. He introduced one witness, but as we noted above, he did not take the stand, although he was privileged to do so. The case was tried on its merits on the theory that defendant was relying on a plea of not guilty.

The court gave many written charges at defendant’s request. They were premised on defendant’s innocence and that he was not guilty.

The trend of the new rules of court procedure now controlling is to get away from technical disposition of cases and to reach the merits of the dispute. This is a very good case to observe this new trend. We conclude that the failure of the trial court to ask defendant how he pleads was a technical and harmless omission that did not deny defendant any rights. The trial was supervised by an excellent judge, fair-minded and neutral, and defendant was accorded a fair trial on an implied issue of not guilty. To reverse and remand this case on such a technical omission would cast a shadow on justice.

It is true that defendant was entitled under the law to assert an affirmative defense of not guilty by reason of insanity. Such a defense is not embraced in a plea of not guilty, but must be asserted in a special plea. It must be done at the time of arraignment and entered of record upon the docket of the court. But it is within the sound discretion of the court to be subsequently interposed. Baker v. State, 209 Ala. 142, 145, 95 So. 467.

It appears in this ease that when the defendant waived reading the information, counsel for defendant being present, he and his counsel remained as quiet as a mouse treading on a bale of cotton, and not then or subsequently, did they invoke the court to permit them to file an insanity plea or to proceed with such a defense. To have done so, if ever they had such intention, might have “muddied” the waters and invited the court’s attention to the technical omission of a formal arraignment. Having failed to avail themselves of this invocation as was the right of defendant, we conclude that the defendant had no such defense that he could establish — the burden being on him. Title 15, § 422, Code 1940.

We also note that the judgment contains a statement that the defendant was arraigned in open court and that he entered a plea of not guilty.

It appears that this statement is not correct and that, from the record, no formal arraignment was ever had.

It further appears from the proceedings had on the motion for a new trial that defendant in the General Sessions Court entered a plea of not guilty, was tried, convicted and then he appealed to the circuit court for a trial de novo.

We think it is very unlikely and incredible that defendant would have entered any plea on formal arraignment other than the plea of not guilty. He was tried the second time on that basis, without any objection or effort to advise the court that he wanted to file a different plea. He was given all the advantages of such a plea, and now we do not think he should be heard to complain. He was speculating and will not now be heard to assert error. He got a fair trial, before a just court and jury, and had the opportunity to present evidence that he was not guilty. We do not think he is entitled to have the judgment reversed and the cause remanded.

V

We now allude to the contention that the court entered a judgment of conviction in the absence of a plea of not guilty having been entered by defendant.

Under the facts of this case to which we have alluded, supra, we hold that the entry of judgment was free of error.

The judgment is affirmed.

AFFIRMED.

DeCARLO, J., concurs.

HARRIS, J., concurs in the result.

TYSON and BOOKOUT, JJ., dissent.

BOOKOUT, Judge

(dissenting):

The affidavit fails to show any basis for believing the informer to be credible, and it also fails to state sufficient grounds to establish probable cause. Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964); Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969).

TYSON, Judge

(dissenting):

I join Judge BOOKOUT in the above dissent. In addition, I do not believe that the record here shows a proper arraignment and therefore dissent on the authority of this Court’s opinion in Ludlum v. State, 52 Ala.App. 631, 296 So.2d 254, and, authorities therein cited.


text:
    In re Robert Earl RUCKER v. STATE of Alabama. Ex parte Robert Earl Rucker.
    SC 1885.
    Supreme Court of Alabama.
    Dec. 10, 1976.
    Cloud, Berry, Abies, Blanton & Tatum, Huntsville, for petitioner.
    William J. Baxley, Atty. Gen. and Joel E. Dillard, Asst. Atty. Gen., for the State, respondent. (
   FAULKNER, Justice.

Writ quashed as improvidently granted.

In quashing this writ, we wish to be understood as specifically disapproving the following language in the plurality opinion of the Court of Criminal Appeals, viz.:

“The trend of the new rules of court procedure now controlling is to get away from technical disposition of cases and to reach the merits of the dispute. This is a very good case to observe this new trend. We conclude that the failure of the trial court to ask defendant how he pleads was a technical and harmless omission that did not deny defendant any rights.”

There are no new rules of court procedure with respect to criminal cases, as yet. Moreover, we cannot agree that the alleged failure to ask defendant how he pleads is “harmless” error.

To the contrary, the rule of our decisions is that the judgment entry must contain a statement that the defendant was arraigned in open court. Bray v. State, 16 Ala.App. 433, 78 So. 463 (1918).

Here, the judgment entry recites “issue joined.” This has been held to be sufficient to satisfy the requirement of an arraignment and plea. Newsome v. State, 49 Ala.App. 248, 270 So.2d 680 (1972).

WRIT QUASHED.

BLOODWORTH, MADDOX, JONES, ALMON, EMBRY and BEATTY, JJ., concur.

HEFLIN, C. J., and SHORES, J., not sitting.