text:
    Bill ADAMS, David Troglen and Wanda Faye Troglen v. Melvalene ADAMS.
    SC 2134.
    Supreme Court of Alabama.
    June 10, 1977.
    Aubrey 0. Lammons of Lammons, Bell & Sneed, Huntsville, for appellants.
    Roscoe Roberts, Jr. of Watts, Salmon, Roberts, Manning & Noojin, Huntsville, for appellee.
   ALMON, Justice.

The original suit filed by Melvalene Adams against her ex-husband, Bill Adams, and David and Wanda Faye Troglen, sought the reformation of two deeds exchanged between her and her ex-husband via a divorce decree, the reformation of a deed subsequently conveyed to Mr. and Mrs. Tro-glen by Bill Adams, and compensatory and punitive damages. The court severed the issue of damages and heard the issue of reformation without a jury. The equitable relief requested, namely, title to a certain 5 foot strip of property crossing Mrs. Adams’ driveway, was granted. Mr. Adams and the Troglens appealed, questioning primarily the sufficiency of the evidence. We affirm.

FACTS

Mr. and Mrs. Adams were married in 1956. They bought 5 acres of property near Madison in 1959. In 1966, they mortgaged 1 acre of the 5 acres to finance the construction of a house on the 1 acre. In contemplation of having a county road run along the southern boundary of the property, the 1 acre tract stopped 25 feet short of the southern boundary. In August, 1972, Mr. and Mrs. Adams conveyed a 20 foot right-of-way along the southern boundary to the county. Mr. and Mrs. Adams subsequently were divorced in September of 1973. By agreement, Mrs. Adams received the 1 acre with the residence on it and Mr. Adams, the remaining 4 acres. Mrs. Adams, being unaware that between the 1 acre and the deeded right-of-way a 5 foot strip of property (she had let Mr. Adams handle the mortgage and right-of-way deed), told her attorney to base the exchange of deeds between her and Mr. Adams on the description of the mortgage. Mr. Adams knew about the 5 foot strip, but testified that he forgot to mention it during the divorce proceedings.

“Q. But you did know—
. “A. I knew about signing the deeds and so on and, alright, I was definitely aware there was a twenty-five foot strip in here before I deeded a twenty-foot strip to the County before the divorce procedure.
“Q. And you knew you had only given twenty feet?
“A. I knew it, that’s right, that I had signed the deeds in the past giving the County twenty feet, but when I was getting my divorce I didn’t even think of the deed deeding the County twenty feet. I wasn’t conscious of it. You know, you were trying to settle the divorce and this—
“Q. Did you assume that transfer of that one acre tract would give her access to Greenwood Drive?
“A. I didn’t assume that.
“Q. Did you assume it would not give her access?
“A. No sir, I did not.”

(The parties stipulate that neither attorney handling the divorce was aware of the 5 foot strip between the 1 acre and the road.)

In April, 1975, Mr. Adams conveyed to his friend of many years, Mr. Troglen (deed was to Mr. and Mrs. Troglen), a lot adjacent to the l.acre owned by Mrs. Adams, together with the 5 foot strip fronting the 1 acre. That same month Mr. Troglen put up “For Sale” signs along the 5 foot strip. The signs gave Mrs. Adams her first notice that she did not own the property up to the right-of-way. Mrs. Adams was not living at the house in April. It had partly burned the prior March and repairs took approximately 2 months. On June 27, 1975, Mr. Troglen wrote Mrs. Adams a letter offering to sell or lease to her the 5 foot strip, stating that otherwise she was trespassing, and that to protect his title he would have to erect a fence. On September 9,1975, Mr. Troglen put up a barbed wire fence along the 5 foot strip and on September 10, filed a complaint for trespass with the Madison County Sheriff’s Department.

At the time Mr. Troglen purchased the lot and 5 foot strip, he was aware of the driveway crossing the strip.

“Q. Mr. Troglen, did you know Mrs. Adams at the time you purchased that lot was coming from Greenwood Drive, was coming off Greenwood Drive onto the driveway which led to her house across that strip?
“A. Right.
“Q. You knew that?
“A. Yes.
“Q. Did you contact her by phone before you acquired it?
“A. No, no.
“Q. Was the first contact you made a' letter that you wrote her dated June 27, 1975?
“A. Right.

I

Appellants contend that Mrs. Adams’ suit for reformation of the deeds is a collateral attack on the divorce decree. The question, however, is not whether the divorce decree should stand, but, rather, whether the doctrine of res judicata and collateral estoppel precludes consideration of reforming the deeds. We do not believe it does.

Facts that are merely assumed in the pleadings or decision of a prior case, but which are not placed in issue or essential to the judgment are not precluded from being raised in a subsequent suit between the same parties on a different cause of action.

“A judgment is conclusive as to facts admitted by the pleadings or assumed by the decision, where they were essential to the judgment, and were such that the judgment could not legally have been rendered without them; but not where they were only incidentally or collaterally in question in the suit, or were not necessary to its determination, or where public rights are involved.” 50 C.J.S. Judgments § 733, p. 224 (1947).

In Mutone v. Mutone, Sup., 236 N.Y.S.2d 799 (1963), the court held that a husband was not precluded from seeking reformation of a separation agreement on which the wife had already sued for payment.

“A wife’s action upon a separation agreement to collect alimony due thereunder, resulting in a judgment in the wife’s favor, is not a bar to a subsequent action by the husband to reform the separation agreement. [Citations omitted.] Such a determination, however, would be res adjudicata as to the existence of a valid separation agreement, since the existence of a valid separation agreement is an essential element in an action to recover alimony allegedly due thereunder. [Citations omitted.] Id. at 802.

In Lehrman v. Lehrman, 203 Or. 30, 278 P.2d 139 (1954), the Oregon Supreme Court allowed reformation of a divorce decree to include the addition of a property description. Similarly, in Sedlacek v. Sedlacek, 107 Ill.App.2d 334, 246 N.E.2d 6 (1969), a husband was allowed to seek reformation of a divorce decree.

In the present case, the specifics of the legal description found in the divorce decree were not at issue and were not essential to the decree. See State v. Mudd, 273 Ala. 579, 143 So.2d 171 (1962); Ashurst v. Preferred Life Assur. Soc. of Montgomery, 282 Ala. 119, 209 So.2d 403 (1968).

II

Tit. 47, § 136, Code of Alabama 1940, Recompiled 1958, provides:

“§ 136. When equity court may revise conveyance. — When, through fraud, or a mutual mistake of the parties, or a mistake of one party, which the other at the time knew or suspected, a deed, mortgage, or other conveyance does not truly express the intention of the parties, it may be revised by the court of equity on the application of the party aggrieved so as to express that intention, insofar as this can be done without prejudice to rights acquired by third persons in good faith and for value.”

At the trial level the burden was on Mrs. Adams to prove her case by clear, convincing, and satisfactory evidence. Fidelity Service Ins. Co. v. A. B. Legg & Sons Burial Ins. Co., 274 Ala. 94, 145 So.2d 811 (1962). The question presented on appeal, the evidence having been heard ore tenus, is whether the lower court’s decree is supported by competent evidence, or whether it is plainly and palpably wrong. Fidelity Service Ins. Co., supra; Murphree v. Henson, 289 Ala. 340, 267 So.2d 414 (1972); and 66 Am.Jur.2d, Reformation of Instr., § 130, pp. 653-654.

We conclude from the record that there is sufficient evidence to support the trial court’s decision to reform the deeds. Our review of the weight of the evidence does not convince us that the decree is plainly and palpably wrong.

Ill

The remaining question is whether the Troglens’ rights in the 5 foot strip are being prejudiced. This depends on whether Mr. Troglen took without notice of Mrs. Adams’ claim of interest in the 5 foot strip.

“ . . . Notice of a claim of interest in real property can be inferred from knowledge of facts sufficient to put a reasonably prudent person on inquiry, which if followed up, would lead to the discovery of the title asserted by some other party. . . . ” Murphree v. Henson, supra, 289 Ala. at 352, 267 So.2d at 425.

See also Leslie v. Click, 221 Ala. 163, 128 So. 170 (1930). Again, our scope of review is limited to whether the trial court’s decision, that Mr. Troglen did take with notice, is palpably wrong and contrary to the great weight of the evidence. Murphree v. Henson, supra.

Mr. Troglen knew at the time he purchased the lot and 5 foot strip that Mrs. Adams used the driveway crossing the strip for access to her residence, and had no reason to believe Mrs. Adams was crossing property other than her own. Yet, Mr. Troglen made no inquiry as to whether Mrs. Adams claimed an interest therein.

We believe the evidence supports the lower court’s conclusion that a reasonably prudent person would have made inquiry and that the Troglens would not be prejudiced by a reformation of their deed to exclude the 5 foot strip.

We therefore affirm the decision of the trial court.

AFFIRMED.

TORBERT, C. J., and BLOODWORTH, JONES and EMBRY, JJ., concur.


source: Caselaw Access Project

author: JONES, Justice.

license: Public Domain

text:
    William R. CHITWOOD and the General Store and Chitwood’s True Value Hardware, Inc., a corporation v. Jens CARLSEN, Individually and d/b/a Carlsen’s Hardware, etc.
    SC 2258.
    Supreme Court of Alabama.
    June 10, 1977.

      Stephen R. Windom, Mobile, for appellants.
    John W. Parker, Mobile, for appellee.
   JONES, Justice.

This case involves a motion to dismiss and poses the question whether a release, executed between the trustee in bankruptcy and Jens & Virginia Carlsen, discharging the Carlsens from any action by the bankrupt, is a bar prohibiting Chitwood and the Chitwood Corporation from subsequently suing the Carlsens for breach of contract and tortious interference with property.

William Chitwood, The General Store, and Chitwood’s True Value Hardware, Inc., allege in their complaint that Carlsen, Carl-sen’s Hardware, and Carlsen’s Pro Mart Home Center, Inc., sold assets of the Carl-sen Corporation to Chitwood; that the Carl-sens leased to Chitwood and the Carlsens; that, subsequently, the Carlsens forcibly entered the leased premises; and that the Carlsens began operating the hardware business and sold off assets belonging to Chitwood.

Chitwood, The General Store, and True Value Hardware filed petitions in bankruptcy. The trustee of the bankrupt estates, Edward Cooper, executed an agreement which stated:

“ . . . Cooper releases and forever discharges [Jens] Carlsen and Virginia Carlsen, individually and jointly, their heirs, executors, successors and assigns from any and all actions, causes of action, claims, demands, costs, liabilities and/or payment growing out of or encompassed in that certain suit [bankruptcy proceeding] . . . and forever discharges Carlsen and Virginia Carlsen, jointly and separately, their heirs, executors, successors and assigns from any and all action, causes of action, claims, demands, liabilities and/or payments arising from the agreement made and entered into on the 12th day of April, 1974 . .

It is the position of the appellee that this release operates as a bar to any action by Chitwood, True Value, and The General Store.

The controlling statute is Section 70a of the Bankruptcy Act which states in pertinent part:

“a. The Trustee of the estate of a bankrupt and his successor or successors, if any, upon his or their appointment and qualification, shall in turn be vested by operation of law with the title of the bankrupt as of the date of the filing of the petition initiating a proceeding under this Act, except insofar as it is to property which is held to be exempt, to all of the following kinds of property wherever located . . . (5) Property, including rights of action, which prior to the filing of the petition he [Bankrupt] could by any means have transferred or which might have been levied upon and sold under judicial process against him, or otherwise seized, impounded, or sequestered; Provided, That rights of action ex delicto for libel, slander, injuries to the person of the bankrupt, or of a relative, whether or not resulting in death, seduction and criminal conversation, shall not vest in the trustee, unless by the law of the State such rights of action are subject to attachment, execution, garnishment, sequestration or other judicial process . (6) rights of action arising upon contracts, or usury, or the unlawful taking or detention of or injury to his [Bankrupt] property.”

Both Sections 70a(5) and 70a(6) contain categories of properties or rights of action which vest in the trustee upon the filing of the bankruptcy petition. It is important to note that, in order for the release executed by the trustee to be valid and binding as a bar to the bankrupt suit, each cause of action alleged must have vested in the trustee. See Collier on Bankruptcy, Vol. 4A, ¶ 70.28. It is axiomatic that the trustee cannot release a party from liability if he could not have maintained a suit against the released party in his representative capacity. It is the application of this standard which dictates the necessity of reversing ■ the trial Judge’s decree. Paragraph 24 of the appellant’s complaint states:

“Complainant has lost its lease for said hardware business which is worth $500,-000 and Plaintiff’s business reputation has been seriously damaged: Plaintiffs have been caused to incur great expense and have lost all of the time and effort that had been put into said projects: Plaintiff has been caused to incur expenses of attorney’s fees and has been put to great trouble, inconvenience and expense, and in the final analysis were forced into filing bankruptcy, which was done all as a result of the wrongful acts of Defendants as aforesaid, (emphasis added)”

Because this is a motion to dismiss, the allegations of the complaint must be taken as true, particularly when, as here, the appellees have offered no evidence refuting this claim stated in paragraph 24.

It is settled law that a cause of action for interference with, or loss, of an advantageous business relationship does not pass to the trustee as it involves an injury to future earning capacity rather than to any property of the bankrupt. Boudreau v. Chesley, 135 F.2d 623 (1st Cir. 1943).

In Gering v. Superior Court, 37 Cal.2d 29, 230 P.2d 356 (1951), the Supreme Court of California sustained the bankrupt’s right to maintain an action for damages for a conspiracy occasioning the loss of his partnership interest in a business, the bankruptcy court having ruled that it did not pass to the trustee in bankruptcy. The bankruptcy court’s rationale was that the cause of action was “for damages to an advantageous business relationship and not to an existing property interest which the bankrupt could have disposed of to his advantage. In other words, the alleged wrongful conduct of the defendants . . . interfered with the future earning capacity or power of the bankrupt. Such earning capacity or power is not ‘property’ until it has created earnings or brought them into existence.” 230 P.2d at 356, 357.

Indeed, taking the allegations set out in the complaint as true, as we must do, we find that the plaintiffs have properly set forth a cause of action for interference with a business relationship. This cause of action could not and did not vest with the trustee in bankruptcy. Because the trustee had no power to release this cause of action against the appellees, the trial Court erred in granting the defendant’s motion to dismiss. Therefore, the decree below is reversed and remanded.

REVERSED AND REMANDED.

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


author: WRIGHT, Presiding Judge.

text:
    ALABAMA STATE TENURE COMMISSION et al., Individually and in their official capacities as members of the Alabama State Tenure Commission v. BOARD OF SCHOOL COMMISSIONERS OF MOBILE COUNTY, Norman J. Berger, et al., in their official capacities as members of that board.
    Civ. 1032.
    Court of Civil Appeals of Alabama.
    April 6, 1977.
    Rehearing Denied May 11, 1977.
    William J. Baxley, Atty. Gen. and Joel E. Dillard, Asst. Atty. Gen., for appellant.
    Robert C. Campbell, III, and Frank G. Taylor of Sintz, Pike, Campbell & Duke, Mobile, for appellees.
    J. U. Blacksher and W. Clinton Brown, Jr. of Crawford, Blacksher, Figures & Brown, Mobile, in behalf of James E. Bus-key, amicus curiae.
   WRIGHT, Presiding Judge.

This is an appeal from the granting of a peremptory writ of mandamus. We reverse.

The history of controversy between the Board of School Commissioners of Mobile County and James E. Buskey is rather long and involved. Insofar as this court knows, the beginning of the saga was when Mr. Buskey returned from a Board-granted leave of absence for graduate study during the 1972-73 school year. Upon return from his study, Buskey requested advancement from his pre-leave status as assistant principal of Toulminville High School to a princi-palship or a central office supervisory position. He then held tenure under the Alabama Teacher Tenure Act. His request was not granted. Instead, by letter of August 27, 1973, the Board informed him he was being reassigned to the position of assistant principal at Baker High School. Mr. Buskey reported to Baker and remained two days. He then returned to Toulmin-ville. He was not permitted to perform any duties nor allowed an office there. He was informed that his presence was disrupting and that he was subject to arrest for trespassing. He then requested a hearing before the Board under Title 52, Sec. 356, Code of Alabama (1940) (Recomp.1958) (Teacher Tenure Act), contending he had been transferred under the Act.

At this time, counsel for the Board and Buskey reached an agreement that Buskey would report to neither school and remain on salary pending resolution of the dispute or until further instructions. The agreement was verified by exchange of letters.

The Board held a hearing according to Sec. 356, though insisting that it was not required because its moving of Buskey from one school to another was a reassignment and not a transfer. After hearing the Board sustained its original action. Mr. Buskey appealed to the Teacher Tenure Commission as provided by Sec. 357, Code. The Board maintained its contention that its action was a reassignment of Buskey and not a transfer and the Commission was without jurisdiction in the matter. The Commission ruled otherwise and directed the Board to hold a hearing on the transfer or to- send up the record of the hearing already held. The Board took neither action, nor sought review, but informed Bus-key’s attorney that it was filing a petition in the federal court in Mobile County which had a continuing jurisdiction over the Mobile school system.

By letter of December 28, 1973, Buskey was notified by an assistant superintendent to report to Baker High School by January 2, or be suspended without pay. Buskey responded by letter advising that he would return to Toulminville if instructed but would not report otherwise pending the appeal of his transfer to the Tenure Commission. His pay was terminated January 2, 1974. Acting upon motion of Buskey, on January 17, 1974, the Tenure Commission ordered the Board to comply with its previous order and directed the reinstatement of Buskey to Toulminville. On January 22, 1974, Buskey’s attorney wrote the Board stating that until the Board would permit Buskey to return-to Toulminville peaceably, he would not report there. Attorney for the Board responded by letter of January 31 that the assignment to Baker could not be changed because of the pending petition in federal court.

On February 21, 1974, the federal court granted the motion of Buskey to dismiss the petition. There having been no action by the Board for review of the orders of the Tenure Commission, the Commission sought enforcement of its orders by petition for writ of mandamus in the Circuit Court of Mobile County on September 20, 1974. Mandamus was denied. The Commission appealed to this court.

On June 11, 1975, this court reversed the circuit court and directed it to issue mandamus requiring the Board to forward the transcript of its October 3, 1973 hearing to the Tenure Commission for its review on appeal.

Meanwhile, on June 24,1974, Buskey conferred with the assistant superintendent about a position for the school year 1974-75. He was told he was being considered for transfer to Williamson High School as assistant principal. Buskey was notified of the transfer from Baker to Williamson on June 28, 1974. He requested hearing under Sec. 356. Hearing was held and transfer ordered on July 24, 1974. Buskey appealed to the Tenure Commission. On September 27, the Commission found failure by the Board to follow statutory procedure in the transfer and directed the transfer be set aside. The Board took mandamus to circuit court. It was not until August 18, 1975, that the court issued its peremptory writ vacating the order of the Commission. After appeal to this court, the order of the circuit court was upheld on March 31, 19.76. Alabama State Tenure Commission v. Board of School Commissioners of Mobile County, 332 So.2d 724 (Ala.Civ.App.), cert. denied 332 So.2d 732 (Ala.1976).

While the original transfer from Toul-minville High to Baker High was being kept from the consideration of the Tenure Commission by the refusal of the Board to submit to its jurisdiction and orders; while mandamus brought by the Commission against the Board was pending in circuit court; and while appeal from the transfer to Williamson for the year 1974-75 was pending before the Tenure Commission, the superintendent, on September 4, 1974, proposed cancellation of the contract of Buskey on the ground of neglect of duty. The stated basis for the charge of neglect of duty was the failure of Buskey to report to his last assigned position at Williamson High or at any other school in the system. Buskey requested a hearing. After hearing, the Board cancelled his contract upon the grounds of neglect of duty in that he failed to report for duty anywhere in the school system for the 1974-75 school year and thus was absent without leave from August 19, 1974, to the date of the hearing on October 3, 1974.

Buskey promptly appealed the cancellation to the Tenure Commission. The Commission, on December 9, 1974, reversed the cancellation stating that the evidence before the Board failed to support the charge of neglect of duty and that the action of the Board was thus arbitrarily unjust.

The Board sought mandamus in the circuit court of Mobile County. The court reviewed in detail the evidence in the record and found that the finding of the Commission was itself unjust. The Tenure Commission appealed to this court. Mr. Buskey has been permitted to appear here amicus curiae.

The Tenure Commission in this case reviewed the evidence in the record and concluded therefrom that the charge of neglect of duty brought against Mr. Buskey was totally unsubstantiated. The Commission further concluded that the record showed that Mr. Buskey acted within his statutory right in not reporting to the school system for the 1974-1975 school year. It found that to cancel a contract for neglect of duty for failure to report to a school while a transfer thereto was under appeal was illegal and contrary to the provisions of Title 52, Sec. 357.

The circuit court after hearing for mandamus found that the Commission held that Buskey had a statutory right not to work as a teacher for the 1974-75 school year. The court further found that Buskey had the alternative to report to any of three schools and that he wilfully refused to accept any of the alternative positions.

We will point out the fallacy of the circuit court’s conclusion. It will be recalled that we have previously stated that Buskey was directed to report to Baker after returning from leave. There is no question but that such direction was, in fact, a transfer; State ex rel. Zeanah v. Berger, 55 Ala.App. 246, 314 So.2d 700 (1975); though the Board insisted it was a reassignment. Buskey requested a hearing and after adverse action by the Board appealed to the Tenure Commission. Sec. 357 provides that no transfer shall be affected, if appeal is filed, until after approval of the transfer by the Tenure Commission. The Tenure Commission had given no such approval when the charges of neglect of duty were brought and heard by the Board in September of 1974. Therefore, by statute, Buskey was entitled to be serving as assistant principal at Toulminville High School at the time of the cancellation of his contract.

Did Buskey refuse to report to Toulmin-ville? That was a question of fact to be determined from the evidence. The Board determined that fact adverse to Buskey. Was that finding supported by the evidence? The Commission after reviewing the evidence determined that it was not. What was the evidence on that issue?

There is no dispute that Buskey in August of 1973 attempted to work at Toulmin-ville. There is no dispute that he was denied duties or an office, and was told he had no right there and could be arrested. It is documented that counsel for Buskey and the Board agreed that he should not report further to Toulminville or to Baker pending resolution of the conflict or until further instructed. In the meantime, he would continue to receive his salary.

This state continued until the superintendent of schools, by letter of December 28, 1973, notified Buskey that he must report to Baker High on January 2, 1974, or be taken off salary. Buskey responded by letter of January 2, 1974, stating that he was prepared to report to Toulminville if the Board instructed him to do so. On January 22, 1974, counsel for Buskey wrote counsel for the Board that he had received the order from the Commission requiring the Board to reinstate Buskey at Toulmin-ville. He stated Buskey was ready to return when notified that he could do so peacefully. The Board’s counsel responded on January 31, writing that the Board was not going to comply with the Commission’s order, but was filing a petition in federal court. Be it remembered, that it was always the position of the Board that Buskey had no right at Toulminville and the Commission had no jurisdiction for Buskey’s appeal. The record was perfectly clear that Buskey was unwelcome at Toulminville and would not be permitted to assume any position there. It was not until after the decision of this court in June of 1975 that the Board furnished the Commission a record to consider in his appeal from his original transfer.

In June, 1974, when informed that the Board intended to transfer him from Baker to Williamson High, Buskey informed the superintendent that he would not accept such a transfer, but would return to Toul-minville for the 1974-75 year.

Thus the record, without dispute, supports the conclusion of the Tenure Commission that Buskey was legally entitled by statute to remain at Toulminville until approval of his transfer on appeal to the Tenure Commission. His refusal to report to any other school was proper. He was denied the right to work at Toulminville. The circuit court upon review of the finding of the Commission by mandamus erred in finding the order of the Commission unjust. There was sufficient evidence to support the conclusion of the Commission. Ex parte State Tenure Commission, 11 ABR 364, S.C. 1800 (December 10, 1976). We therefore reverse the circuit court and direct it to dismiss the petition for mandamus.

REVERSED AND REMANDED WITH DIRECTION.

BRADLEY and HOLMES, JJ., concur.

      . The delay of a hearing by the Commission for more than two years was directly due to the refusal of the Board to comply with the orders of the Commission.

      . Letter dated August 30, 1973 from counsel for the Board to counsel for Buskey.

      . By the date of that letter, the appeal of the transfer had been carried to the Commission. The Board had been ordered to send up the record of its hearing and to permit Buskey to work at Toulminville until the Commission ruled on the appeal.

      .It is ironic that the Commission, when finally given a record by the Board, upon review sustained the transfer of Mr. Buskey from Toul-minville to Baker. Had the Board conceded that its action was a transfer and not a reassignment, all the matters reviewed here and in .the other two appeals to this court would not have arisen.


author: MADDOX, Justice.

text:
    Ex parte BOARD OF SCHOOL COMMISSIONERS OF MOBILE COUNTY.
    SC 2589.
    Supreme Court of Alabama.
    June 24, 1977.
   MADDOX, Justice.

WRIT DENIED.

TORBERT, C. J., and FAULKNER, SHORES and BEATTY, JJ., concur.


author: BRADLEY, Judge.

text:
    MOBILE HOME BROKERS, INC., a corporation v. Randall CLARK and Diana Clark and City Federal Savings.
    Civ. 1068.
    Court of Civil Appeals of Alabama.
    June 8, 1977.
    Charles A. McGee, Traylor, Baker & McGee, Fort Payne, for appellant.
    W. W. Haralson, Scottsboro, for appel-lees.
   BRADLEY, Judge.

Diana and Randall Clark filed a complaint in the Circuit Court of Jackson County against Mobile Home Brokers, Inc., a corporation, for breach of an implied warranty of merchantability (Title 7A, Section 2-314, Code of Alabama 1940 [Recomp. 1958]). The warranties allegedly were made when Mobile Home Brokers sold, through their agent Crestview Mobile Homes, a new Olympic mobile home to the Clarks. Trial was had before a jury, and, at the close of the evidence on behalf of the Clarks, the mobile home company moved for a directed verdict; the motion was denied. The jury returned a verdict in favor of the Clarks for $8,500. Mobile Home Brokers’ motion for judgment n. o. v. or for a new trial was overruled. Mobile Home Brokers appeals.

Two questions are presented to this court for decision. The first is whether the trial court erred by not excluding Randall Clark’s testimony regarding the fair market value of the mobile home with the latent defects at the time and place of acceptance. The second question is whether there is insufficient evidence to uphold the jury’s verdict of $8,500.

The evidence shows that on May 14, 1975 Randall and Diana Clark purchased an Olympic double-wide mobile home, serial number 0660, from Crestview Mobile Homes, the agent of the defendant below and appellant here, Mobile Home Brokers, Inc. The Clarks inspected the mobile home three times before the purchase. They moved into the mobile home in the latter part of June 1975, whereupon the mobile home began to deteriorate.

The drawers in the kitchen fell apart and the doors to the kitchen cabinets fell off; the upper cabinets were improperly braced and began to sag and pull away from the wall. Water stains appeared in the ceiling where the two portions of the double-wide mobile home were joined. During rains, water leaked around the windows in the living room, two bedrooms, and possibly the bathroom, and around the door in the kitchen. This water mildewed the carpet in the living room and bedrooms and damaged the vinyl floor covering in the kitchen and bathroom. The presswood flooring beneath eventually rotted; as a result one leg of the couch in the living room fell through the floor, one leg of a baby bed in one of the bedrooms fell through the floor, and another hole developed at the door in the kitchen. The bathtub in one bathroom was not braced, so that the tub pulled away from the wall when an adult stepped inside; when the Clarks took showers, water ran into the crack between the wall and the tub and beneath the tub.

The purchase price paid by the Clarks for the mobile home was $10,976. An expert witness called by the Clarks testified that in his opinion, based on the book value of the mobile home, the fair market value' of the mobile home when purchased was $8,695.

An expert called by Mobile Home Brokers said he examined the mobile home in November 1975, which was five months after the Clarks moved into the mobile home. He said that at that time it would have cost between $300 and $500 to repair the defects he observed. Mr. Clark said it could have cost as much as $2,000 to repair the defects in the mobile home.

When asked whether he had an opinion as to the fair market value of the mobile home with the latent defects at the time it was purchased by the Clarks, the expert called by the Clarks responded thát the value would have been $3,050. However, on cross-examination he stated that the $3,050 figure was the fair market value of the mobile home on August 31,1976, three days before trial, rather than the fair market value of the mobile home with its latent defects on May 14, 1975, the day the Clarks purchased the mobile home. The trial judge excluded the expert’s testimony regarding the $3,050 figure.

Mr. Clark then said that he would not have paid more than $4,000 for the mobile home had he known of the defects at the time of purchase. On cross-examination he said he would not have purchased the mobile home had he been aware of the defects. After further cross-examination the following occurred:

“Q Your opinion? Did the fact that Mr. Byrd’s notes and the book that he had have anything to do with that?
“A No; I’m going on the assumption if I bought it with the defects; if I had money in my pocket to repair the trailer, then I could have made it livable if I had money in my pocket at that time.
“Q When we talk about repair, you’re talking about as it is today then, is that what you’re talking about? You’re saying it’s worth three or four thousand as it is today?
“A With the same defects it has in it today.
“Q This is a little bit confusing, but what I’m wanting to know is what is, when this three to four thousand dollars, well, of course, you have sued on breach of an implied warranty. I know your lawyer made that decision and did that. But, all right, on the day you bought it, you didn’t have all this damage that is done to it now, did you?
“A No.
VQ Now, is your estimate of value taking into consideration all this damage that now exists?
“A I’m going under the assumption I never seen the trailer before and I never knew about it at that time, that I knew there was anything wrong with it. I couldn’t really say what I think of that trailer now, knowing that, like how much it’s leaked inside and what damage is done. I’m going by the assumption if I walked up to the trailer and looked through it.
“Q Today?
“A Today; yes.
“Q And not the day you bought it?
“A Well, you’re the one that said the day I bought it. If it had the same defects,—
“MR. HARALSON: He’s already answered the question, Your Honor. Now, Mr. Baker is trying to get him confused. It’s the same ploy used before.
“THE COURT: This is cross examination.
“CONTINUATION BY MR. BAKER:
“Q You have used this figure, three to four thousand dollars. I want you to tell me in your own words without me trying to trick you, but by asking questions, tell us what you mean and when and at what point do you mean that condition for three or four thousand dollars.
“[A] I’m saying if I never seen that trailer before in my life and I walked up to it, with the condition it’s in today, I might put it in that price range.
“MR. BAKER: Your Honor, based on that answer, we move to exclude his previous testimony as relates to damages in the difference in market value.
“THE COURT: Overruled.
“MR. BAKER: We Except.”

Mr. Baker, counsel for Mobile Home Brokers, next questioned Mr. Clark about the defects which appeared in the mobile home before returning to the subject regarding market value of the mobile home at the time it was purchased by the Clarks. The following interchange occurred:

“Q Now, it’s my understanding, were these things, these eight things, on July, well, the day you bought this trailer, if these eight things was all that was wrong with it, do you know what, — and you had known it was wrong with it on that occasion, can you tell us what would have been the market value of that mobile home the day you bought it or took possession of it?
“A I don’t know; just those eight things, I would say five or six thousand, maybe; I don’t know; I couldn’t really say; its my opinion.
“Q So you’re saying it would cost $5,000.00 to fix these eight things?
“A I don’t know.
“Q All right, do you really know what the market value would have been with these defects?
“A No.
“Mr. Baker: Your Honor, we move to exclude his testimony about the market value.
“THE COURT: Overruled.”

As regards the first issue, Mobile Home Brokers claims the trial court erred in not excluding Mr. Clark’s testimony as to the fair market value of the mobile home at the time and place of acceptance when, according to its brief, Mr. Clark “later admitted that that was not his testimony and that he did not know the fair market value at the time and place of acceptance.” As support for its contention, Mobile Home Brokers relies on Bradford v. Harris, 34 Ala.App. 15, 37 So.2d 675, aff’d, 251 Ala. 386, 37 So.2d 677 (1948).

The principle enunciated in Bradford, as we understand it, is that a witness’s testimony should be excluded if it becomes apparent later in the progress of the trial that the witness did not possess competent knowledge and information upon which to base his or her testimony, i. e. the witness did not testify from personal knowledge. In that case the witness testified to the reasonable market value of a car before it was pulled out of a sinkhole. However, upon further questioning it appeared that the witness had not been able to see the car because it was completely covered with dirt and mud, and the witness had not descended into the sinkhole to inspect the vehicle at a closer range; thus, the witness lacked knowledge upon which to base an estimate of market value of the car. The court stated:

“. . For a witness to give accurate and dependable testimony it is essential and required that he should be possessed of adequate and reliable knowledge regarding the matter to which his testimony relates. Under some circumstances this may address itself to the probative value of the evidence, but when it clearly appears, as in the instant case, that it is based on unobtained and unobserved factual data it must go to its admissibility. Our courts are committed to the rule that it is proper to exclude on motion the testimony of a witness, if it should later appear in the progress of the trial that the witness did not possess competent knowledge and information upon which to base his statement.” 34 Ala.App. at 16-17, 37 So.2d at 676 (citations omitted).

Mr. Clark purchased and lived in the mobile home. These factors are sufficient to support an opinion as to value. Any lack of familiarity with the mobile home industry relates to the probative value of the testimony rather than its admissibility. We find no error in the action of the trial court refusing to exclude Mr. Clark’s testimony.

Another aspect of this issue is Mr. Clark’s negative response to the question: “All right, do you really know what the market value would have been with these defects?” Mobile Home Brokers contends that the negative answer to the question posed shows conclusively that Clark had no knowledge of the market value of the mobile home at the time of purchase in its defective condition and therefore there is an absence of evidence on this necessary element of the claim. We do not agree. To adhere to Mobile Home Brokers’ suggestion would require that we ignore Clark’s other testimony on this point which is contradictory to that pointed out above. We believe the correct principle of law to follow in reconciling, if possible, this contradictory evidence is set out in McLarty v. Wright, 56 Ala.App. 346, 349, 321 So.2d 687, 689 (1975):

“Unexplained contradictions in a witness’ testimony do not cancel out the matter contradicted or justify its exclusion, but go instead to the weight of the testimony, Bohanan v. Dodd, 7 Ala.App. 220, 60 So. 955 [1913]. Of course, the net effect of inconsistent testimony may be a diminution of the witness’ overall credibility, but this is to be determined by the jury.”

See also Hines v. Miniard, 208 Ala. 176, 94 So. 302 (1922).

We believe that the credibility and reliability of all of Mr. Clark’s testimony was for the jury to evaluate and the trial court properly refused to exclude it.

Mobile Home Brokers’ second issue concerns the sufficiency of the evidence to sustain the verdict and judgment of $8,500. Its position is that Title 7A, Section 2-714, Code of Alabama 1940 (Recomp. 1958), provides that the measure of damages for breach of warranty is the difference at the time and place of acceptance between the value of the goods accepted and the value they would have had if they had been as warranted. Since there was no proof of the value of the mobile home with its latent defects at the time it was purchased, there was no evidence upon which the jury could properly award damages for breach of warranty. Citing Continental Volkswagen, Inc. v. Soutullo, 54 Ala.App. 410, 309 So.2d 119 (1975), defendant says that omission of proof of damages cannot be supplied by speculation of the jury. Therefore, there is no evidence to support the jury award. We again disagree.

As we have just related above, Mr. Clark did testify about the value of the mobile home with its latent defects on May 14,1975, the date of purchase. We said the weight to be given that testimony was for the jury. The jury apparently gave credence to this testimony for it returned a verdict for $8,500, and the trial court apparently believed it also for it denied the motion for new trial. It is well known that the correctness of a jury’s verdict is strengthened by the refusal of the trial court to grant a new trial. Prescott v. Martin, Ala., 331 So.2d 240 (1976). Therefore,- we conclude the trial court did not err in refusing a new trial on the ground of insufficient evidence to support the verdict.

No reversible error having been pointed out, the judgment of the trial court is affirmed.

AFFIRMED.

HOLMES, J., and PAUL, Retired Circuit Judge, sitting by special appointment, concur.


author: HOLMES, Judge.

text:
    STATE of Alabama v. LADNER AND COMPANY, INC.
    Civ. 1102.
    Court of Civil Appeals of Alabama.
    June 8, 1977.
    William J. Baxley, Atty. Gen., Herbert I. Burson, Acting Chief Counsel, Asst. Atty. Gen., Ron Bowden, Asst. Counsel Dept, of Revenue and Asst. Atty. Gen., for appellant.
    Thomas P. Doyle, Mobile, for appellee.
   HOLMES, Judge.

This is a tax case. From a ruling by the Circuit Court of Mobile County vacating a final assessment of taxes against the taxpayer, the State appeals.

In May of 1975, pursuant to Tit. 51, § 25, Code of Alabama 1940, recompiled 1958, the State of Alabama issued an assessment notice to the taxpayer. No response from this notice was made by the taxpayer. In June of 1975, a final assessment was entered against the taxpayer. The taxpayer did not appeal from this assessment within 30 days as permitted by Tit. 51, § 140, Code of Alabama, recompiled 1958.

However, in late December of 1975, the taxpayer filed suit in the Circuit Court of Mobile County to have the assessment set aside. This suit ultimately evolved as a Rule 60(b), ARCP, motion. In January of 1977, the trial court granted the motion and set aside the final assessment.

The sole issue on appeal is whether a taxpayer who fails to perfect an appeal from a final tax assessment, pursuant to Tit. 51, § 140, may thereafter have the assessment set aside by a Rule 60(b) motion.

The State in brief argues that Tit. 51, § 140, is the exclusive method by which a taxpayer may contest a tax assessment. In this instance, the taxpayer did not follow this procedure; therefore, the trial court was without jurisdiction. Put another way, the State contends that Rule 60(b), ARCP, is not available to contest a tax assessment made by the State when that assessment is final and has not been appealed to the circuit court.

The taxpayer argues that the appellate courts of Alabama have held that a final assessment of taxes is as conclusive as a judgment of the circuit court and is as an ordinary court judgment. Sparks v. Brock & Blevins, Inc., 274 Ala. 147, 145 So.2d 844 (1962); State v. Ross Grady Insurance Agency, Inc., 48 Ala.App. 578, 266 So.2d 787 (1972). The taxpayer therefore concludes that the assessment may be altered as any other judgment, e. g., by a Rule 60(b) motion.

The State is correct in its contention.

The Rules of Civil Procedure apply to proceedings in courts. Hence, the rules applied to the proceeding once it had been instituted in the Circuit Court of Mobile County. However, the rules do not provide the mechanism by which a party may invoke the jurisdiction of the court.

The jurisdiction of the Circuit Court of Mobile County over disputes arising from assessments of taxes by the State is governed by statute. Tit. 51, § 140, Code of Alabama. Section 150 of the Alabama Constitution limits the rule making power of the supreme court to rules which do not affect the jurisdiction of the circuit court. The rules are only procedural and are not to be interpreted as modifying substantive law. Hence, an interpretation of Rule 60(b) which would be at odds with the statutory scheme of judicial review of the orders of administrative agencies would alter jurisdiction of the circuit court and would constitute judicial alteration of substantive law. The comments to the rules (Committee Comments to Rules 14, 17(b), 20, 59, 82(a), ARCP), case authority (Hewlett v. John Blue Employees Federal Credit Union, Ala.Civ.App., 344 So.2d 505 (1976), cert. denied, Ala., 344 So.2d 509 (1977); Mississippi Pub. Corporation v. Murphree, 326 U.S. 438, 66 S.Ct. 242, 90 L.Ed. 185 (1946); Brennan v. Silvergate Dist. Lodge No. 50, Intern. Ass’n of Machinists & Aerospace Workers, AFL-CIO, 503 F.2d 800 (9th Cir. 1974), and authoritative commentators (C. Lyons, Jr., 1 Alabama Practice Rules of Civil Procedure Annotated 18 (1973); 2 Moore’s Federal Practice ¶ 1.04[4]) convince us that such a result would be legally impermissible.

Therefore, the circuit court erred in setting aside the final assessment of taxes pursuant to Rule 60(b), ARCP.

REVERSED AND REMANDED FOR ENTRY OF A JUDGMENT NOT INCONSISTENT WITH THIS OPINION.

PAUL, Retired C. J., and BRADLEY, J., concur.


author: TYSON, Judge.

text:
    Sider SWANSON (a/k/a Sider G. W. Swanson) v. STATE.
    7 Div. 430.
    Court of Criminal Appeals of Alabama.
    Oct. 19, 1976.
    Stewart & Colvin, Anniston, for appellant.
    No brief from the State, appellee.
   TYSON, Judge.

The appellant, Swanson, was indicted for first degree murder and tried and convicted of murder in the second degree with the jury fixing punishment at imprisonment in the penitentiary for life. Judgment pronounced sentence on September 30,1975, in accordance with this verdict.

The appellant, prior to trial, was determined to be an indigent and was represented by court appointed counsel at arraignment and trial. The appellant’s attorney gave notice of appeal, timely, and the appellant was determined to be an indigent for purpose of appeal, and counsel appointed to represent him. On motion of the official court reporter, the record filed in this court reflects four extensions of time for the court reporter to prepare and file a transcript of the evidence of this case. The last extension granted the court reporter, on March 22, 1976, extended the time for the filing of the transcript of the evidence with the circuit clerk until April 2, 1976.

Thereafter, the circuit clerk under date of April 2,1976, certified a complete transcript of the record proper, which was filed in this court on April 5, 1976.

Thereafter, on motion of the appellant’s attorney, this court remanded this cause on June 15, 1976, to the circuit court for compliance with the provisions of Title 15, Section 380(20), Code of Alabama 1940, as amended 1963.

The circuit court has subsequently written a letter to this court, but has failed to file any formal findings as to the reasons why a complete transcript for the trial proceedings has not been made up and filed. We cannot consider a letter as a proper return to this court’s order of June 15,1976. See Title 15, Section 380(20), supra.

We note in passing that each prior order entered on motion of the official court reporter extending the time for filing the transcript of the evidence of this trial contains the notation that such was done due to the “heavy work load” of the court. Two of these orders contained the notation, “The failure to file [the transcript] is not the fault of any party or any attorney in this cause.” [R. 41—42]

Since this court’s original order of re-mandment in this cause, the Supreme Court of Alabama has entered its opinion in Ex parte State, In re Pope, Ms. July 16, 1976, opinion extended September 10, 1976, 345 So.2d 1385. Also Ex parte State, In re Smith, Ms. August 6,1976, also extended on September 10, 1976, 346 So.2d 464.

Therefore, pursuant to Pope v. State, Ala.App., 345 So.2d 1381 (1975), this cause is remanded with directions for the trial court to conduct a full and complete hearing as is required by the provisions of Title 15, Section 380(20), Code of Alabama 1940, as amended 1963, so as to include a correct transcript of the evidence. The transcript of the evidence should be filed with the circuit clerk below within sixty days from the date of this hearing, unless that time be extended by the trial court for cause pursuant to statute. A complete record shall be filed with this court by the circuit clerk upon receipt of the court reporters transcript of the evidence, as provided by law. [Since this appeal was taken prior to December 1, 1975, the new Alabama Rules of Appellate Procedure are not applicable.]

As pointed out by this court in Pope, supra, either party may file objections to the transcript of evidence within ten days after the filing of the transcript with the circuit clerk. Title 7, Section 827(la), Code of Alabama 1940, Recompiled 1958.

If a correct transcript of the evidence cannot be obtained, then the appellant must be allowed to prepare a succinct statement of the evidence or bystanders bill in lieu of a transcript of the evidence pursuant to the provisions of Title 7, Section 827(3), Code of Alabama 1940, Recompiled 1958. See also International Brotherhood of Teamsters, etc. v. Hatas, 287 Ala. 344, 252 So.2d 7. The parties should also file briefs on the merits. The appellant has been determined to be an indigent and counsel appointed in his behalf. Due to the peculiar circumstances which surround the failure of the court reporter to timely prepare and file a proper transcript of the evidence in this cause, we remand this ease for a hearing by the trial court as set out above. In the event the trial court determines that the appellant can be furnished “a record of sufficient completeness,” as is required by Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891; and Draper v. Washington, 372 U.S. 487, 83 S.Ct. 774, 9 L.Ed.2d 899, to the end that the appellant may be afforded as adequate appellate review as an appellant who had funds with which to purchase a transcript of the evidence, then such transcript shall be timely filed with the circuit clerk.

If the trial court, following a hearing, should determine that, through no fault of the appellant or his attorney, the appellant is unable to be furnished with such transcript, then the trial court is authorized and directed to grant the appellant a new trial.

REMANDED WITH DIRECTIONS.

All the Judges concur.


author: TYSON, Presiding Judge. HARRIS, Judge,

text:
    Sider SWANSON (a/k/a Sider G. W. Swanson) v. STATE.
    7 Div. 430.
    Court of Criminal Appeals of Alabama.
    Dec. 30, 1976.
    Rehearing Denied Feb. 1, 1977.
   TYSON, Presiding Judge.

On October 19,1976, this Court remanded this cause for a hearing with directions that the appellant, Sider Swanson, be given an opportunity, through counsel, to be furnished a record of “sufficient completeness” of his original trial held in the Circuit Court of Calhoun County, Alabama, as is required by Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891; and Draper v. Washington, 372 U.S. 487, 83 S.Ct. 774, 9 L.Ed.2d 899, to the end that Sider Swanson might be afforded adequate appellate review, the same as an appellant who had funds with which to purchase a transcript of the evidence of the trial.

Pursuant to the mandate of this Court, the Circuit Court of Calhoun County conducted a hearing with trial counsel, who had originally represented the appellant, being present, along with the representatives of the District Attorney’s Office, and an effort was made to reconstruct the original trial through a narrative recital prepared by the District Attorney’s Office.

The hearing being completed, the matter was then filed in the office of the Circuit Clerk of Calhoun County on December 17, 1976, and in turn forwarded to this Court and filed herein on December 21, 1976. An examination of the material sent to us reveals that there is an affidavit contained therein from counsel who represented the appellant at his original trial to the effect that he was not satisfied with the transcript which was being attempted, and that due to the difficulty of attempting to recall matters that had occurred more than one year previously, he was not satisfied with the narrative recital and could not accept it.

In Pope v. State, July 16, 1976, extended on rehearing September 10, 1976, 345 So.2d 1385, the Supreme Court of Alabama stated:

“. . . If the defendant was not at fault, that court , can, under its supervisory powers, compel the preparation of a correct transcript, or can allow the defendant time to prepare a succinct statement of the evidence in lieu of a transcript. See International Bro. of Teamsters, etc. v. Hatas, 287 Ala. 344, 252 So.2d 7 (1971).
“A destitute defendant must be afforded an adequate appellate review. . . . ”

Accordingly, this Court remands this proceeding to the Circuit Court of Calhoun County, Alabama, with specific instructions that the appellant be given an opportunity, through his attorney, to prepare a record of sufficient completeness, as aforesaid, and in the event that the trial court should determine that such record cannot be obtained, through no fault of the appellant or his trial attorney, then the trial court is authorized and directed to grant the appellant forthwith a new trial in accordance with the first opinion in this cause of this Court. Swanson v. State, Ala.Cr.App., 346 So.2d 1162 (1976).

REMANDED WITH DIRECTIONS.

CATES, BOOKOUT, JJ., concur.

HARRIS, J., dissents with opinion.

DeCARLO, J., not sitting.

HARRIS, Judge,

dissenting:,

It does not seem to me that the parties will ever be able to agree on an adequate record. They have tried and failed. As far as I am concerned, a new trial is in order.


text:
    In re Sider SWANSON v. STATE of Alabama. Ex parte STATE of Alabama ex rel. ATTORNEY GENERAL.
    SC 2370.
    Supreme Court of Alabama.
    April 22, 1977.
    William J. Baxley, Atty. Gen., and Jack A. Blumenfeld, Asst. Atty. Gen., for the State, petitioner.
    Donald W. Stewart of Stewart & Colvin, Anniston, for respondent.
   JONES, Justice.

The record filed in the office of the clerk of the Court of Criminal Appeals on December 21, 1976, discloses full compliance with the mandate of that Court’s opinion and order of October 19, 1976, 346 So.2d 1162, which order directed, alternatively, that the trial Court proceed to construct a correct transcript of the evidence pursuant to Tit. 7, § 827(3), Code.

This cause is remanded to the Court of Criminal Appeals for consideration of the merits of the appeal.

REMANDED.

All the Justices concur.

On remand, Ala.Cr.App., 346 So.2d 1166.


author: TYSON, Presiding Judge.

text:
    Sider SWANSON (a/k/a Sider G. W. Swanson) v. STATE.
    7 Div. 430.
    Court of Criminal Appeals of Alabama.
    May 24, 1977.
   TYSON, Presiding Judge.

On April 22, 1977, the Supreme Court of Alabama remanded this cause to this Court for a consideration of the merits of the appeal, determining that pursuant to this Court’s opinion and order of October 19, 1976, the trial court had proceeded to construct insofar as possible a correct transcript of the evidence pursuant to the provisions of Title 7, Section 827(3), Code of Alabama 1940, as amended. The transcript sent this Court by the Circuit Court is in the form of a narrative recital of the original evidence offered at trial except for com-merits from time to time interposed by defense counsel, the prosecuting attorney and the trial court to make clear insofar as possible the nature of the rulings on the various points of evidence which were initially presented on original trial. We commend the court below for its effort, though we have formerly expressed some misgivings because of the affidavit of the defense counsel contained in this record.

The indictment establishes that the appellant was charged with the first degree murder of one Ollie Kirksey by striking her with a hatchet. The jury found the appellant guilty of murder in the second degree, and fixed punishment at imprisonment in the penitentiary for life. The trial court then entered judgment which set sentence in accordance with this verdict.

The principal dilemma with which this Court is confronted is attempting to pass upon the three assertions of error, which are: (1) Testimony pertaining to the cause of death being given by a coroner; (2) The admission of gruesome photographs of the victim into evidence; and (3) The admission of a statement given the arresting officers on the night of the offense by the appellant, who asserts that the trial court erred in denying his motion to suppress and motion to exclude because of the mental condition of the appellant, the appellant contending that such alleged confession was not the product of a rational intellect and free will, and was thus inadmissible.

The tenor of the State’s evidence was to the effect that on the night of January 29, 1973, police officers were summoned to the home of Ollie Kirksey, 1220 West Fourteenth Street, Anniston, Alabama, to investigate an incident involving the appellant and one Ollie Kirksey. The tenor of the appellant’s evidence was through his sister, Annie Swain, and others, and to the effect that the appellant was mentally incompetent and had been in and out of mental hospitals in Michigan and Alabama for a period of more than twenty years, that they believed the appellant to be insane. Similar testimony was given by the appellant’s sister, Mrs. Gladys Ware. The appellant at trial also presented the testimony of Dr. Samuel J. Crawford of the Calhoun — Cleveland Health Center who testified that he had examined Sider Swanson on May 28, 1973, and determined, in his opinion, the appellant could not choose between right and wrong and was in fact a paranoid schizophrenic, and a very ill person.

The State of Alabama in its case presented the testimony of Mrs. Annie Swain, who testified that she had previously seen Ollie Kirksey, her aunt, alive on January 29, 1973, and viewed her body at the home about 10:15 p. m. that evening, and that she saw no visible life signs. She further testified that the appellant, Sider Swanson, lived with Ollie Kirksey next door. She further testified that the appellant had been in and out of mental hospitals most of his life, but that she knew of no hard feelings or difficulties between the appellant and the deceased.

County Coroner Ralph Phillips testified that he had been serving in this capacity for some eight years as of January 29, 1973, and had examined the bodies of a number of deceased persons, that he had assisted the toxicologist when autopsies were performed. He stated that no autopsy was performed on the body of the deceased, Ollie Kirksey, because it was apparent from examining her head wound that she had been killed by a blow to her head administered by a sharp instrument. He testified, over objection, that such blow was the cause of death.

Several photographs made by Mr. Phillips at the scene were then identified and admitted, over objection, as State’s Exhibits Nos. 1-9.

Annie Swain was then recalled by the State and testified that prior to going next door to the home of the deceased, she had heard a knock at the door, and upon opening it, she saw the appellant, who told her there had been trouble next door and that Ollie Kirksey had tried to kill him. She testified that the appellant stated to her that he had struck Ollie Kirksey in the head with a hatchet as she was going for a butcher knife. She testified that she immediately notified the police and told the appellant to go back next door and wait there for their arrival.

Anniston Police Officer Thomas P. Han-lon testified that he went to the home of Ollie Kirksey at 1220 West Fourteenth Street in Anniston about 10:22 on the evening of January 29, 1973. Upon arrival at this address, he saw the appellant, Sider Swanson, standing in the front yard and asked him if he had been involved in a fight inside the house. He stated that they walked to the front porch and he looked inside and saw what appeared to be a body of a black female lying on the floor with no visible life signs. He immediately read a Miranda card warning to the appellant and advised him that he could remain silent, and any statement by him could be used against him. He further told the appellant that if he could not afford an attorney, one would be appointed to represent him. He stated that the appellant replied that he understood his rights and did not want an attorney. Officer Hanlon further testified that neither he nor anyone in his presence made any threat, offered any inducement, hope of reward, or other incentive to obtain a statement, and that the appellant volunteered the comment, “he and his aunt had an argument and that she had tried to kill him, that he hit her in the head with a hatchet.” Officer Hanlon described the appellant as being very calm, showing no emotion, and being very cooperative.

On cross-examination Officer Hanlon did state that the time lapse was very short for the questioning, but that on two occasions the appellant did appear disoriented as to time and place, and that he stopped questioning him.

Anniston Police Detective Gary Carroll testified that he interrogated the appellant at police headquarters about 10:45 p. m. on January 29, 1973. He stated that he read the appellant a Miranda card warning and the appellant advised him that he understood his rights, that he had been previously advised of his rights. Detective Carroll further testified that there was no threat, inducement, intimidation, or hope of reward made or offered in order to obtain a statement from the appellant. He said that he then wrote out a statement, which the appellant signed in his presence, and it was also witnessed by William R. Turner, in which he described a fight with his aunt that evening, and as his aunt was going to get a butcher knife he hit her with a hatchet, then went next door and told his neighbor, Mrs. Annie Swain what had happened.

On cross-examination, Detective Carroll did state that at least twice during his conversation with the appellant, Sider Swanson, that evening, he did appear strange and that his mind wandered. He stated on one occasion the appellant said his aunt had been following him on a bus from Michigan to Anniston.

Following this, the State then presented items of physical evidence, such as the hammer and the hatchet found at the scene.

The appellant made a motion to exclude the State’s evidence, asserting that the State had not made out a prima facie case, had not properly proved the cause of death through a person competent to testify, that gruesome photographs had been admitted into the evidence, and that the appellant did not knowingly, voluntarily, and intelligently waive his right of self incrimination and his right to remain silent. The appellant also asserts that due to his mental condition and past mental history, he could not make an intelligent or voluntary statement.

I

The appellant contends that the allowance of Coroner Ralph Phillips’ testimony as to the cause of death of the deceased was reversible error. This contention is based on the grounds that the witness was not qualified as an expert in that he was not trained in autopsies and had not taken any course on the subject of autopsy, but had been trained primarily in law enforcement.

Coroner Phillips testified that he had been coroner for eight years at the time of his investigation on January 29, 1973, into the death of Ollie Kirksey. He stated that he had the “opportunity to observe literally hundreds of people who had died from natural and unnatural causes.” Phillips further testified that based upon his investigation he was of the opinion that death resulted from a blow to the head with a sharp instrument.

This Court on appeal will not disturb the trial judges’ findings of expert qualifications vel non unless there is a clear abuse of this discretion. King v. State, 266 Ala. 232, 95 So.2d 816.

Whether a witness can acquire sufficient expert knowledge within a given field of endeavor; not ordinarily ventured into by a layman, depends upon an individual’s training and experience. This subject is fully covered in this Court’s opinion in Cobb v. State, 50 Ala.App. 707, 282 So.2d 327, and authorities therein cited.

We are of the opinion that the trial court properly permitted Coroner Phillips to give his opinion as to the cause of death in the instant case.

II

The nine photographs taken by the investigating officers inside the home, the scene of the homicide, that evening were properly admitted into evidence. Smarr v. State, 260 Ala. 30, 68 So.2d 6; Nichols v. State, 267 Ala. 217, 100 So.2d 750.

The fact that some of the photographs of the deceased showed blood on her did not make them inadmissible. Nichols, supra; Brodka v. State, 53 Ala.App. 125, 298 So.2d 55.

III

With reference to the assertion that the appellant could not have made an intelligent waiver of his rights and give a voluntary and intelligent statement to Officers Hanlon and Carroll on the night of the homicide, January 29, 1973, we are of the opinion that the latest expression of the law on this subject is well stated by Judge Bookout, speaking for this Court in Allred v. State, 55 Ala.App. 74, 313 So.2d 195, cert. denied 294 Ala. 751, 313 So.2d 203, as follows:

“Appellant further contends that the alleged confession was not the product of a rational intellect and a free will thus rendering the statement inadmissible.
“The Supreme Court of Alabama, through Simpson, J., stated in Goldin v. State, 271 Ala. 678, 127 So.2d 375, that:
“ ‘ . . . The fact that an accused is not in full possession of his or her mental faculties when the confession is made does not render it inadmissible, but only affects the weight to be accorded by the jury; or is provable merely to support other evidence that the confession was not voluntary. To render such a confession inadmissible on that ground the mania must have been such that the accused was either an idiot or a lunatic during lunacy. Redwine v. State, 258 Ala. 196, 61 So.2d 724.’
“Also in Elrod v. State, 281 Ala. 331, 202 So.2d 539, the Supreme Court of Alabama, through Merrill, J., stated the proposition as follows:
“ ‘ . . . Accused’s intelligence, character and situation at the time of the confession of the crime charged are important considerations in determining whether the confession was voluntary, but the fact that accused was of tender age or weak intellect will not alone render the confession inadmissible in evidence as involuntary. State v. Ashdown, 5 Utah 2d 59, 296 P.2d 726, affirmed 357 U.S. 426, 78 S.Ct. 1354, 2 L.Ed.2d 1443. Evidence tending to show a defendant’s weak mentality, feeblemindedness, and mental stress does not affect the admissibility of the confessions, but rather is a matter that bears on the weight, credibility and effect to be given the confessions by the jury. State v. Stewart, 238 La. 1036, 117 So.2d 583.
“ ‘We have said that a “person may be partially insane and still be competent to testify or make a confession.” The (sic) involves an inquiry into his appearance, demeanor and the nature of his statements. It is for the court to determine whether he has or had the requisite intelligence and ability to communicate his responses to questions. Redwine v. State, 258 Ala. 196, 61 So.2d 724 . .
“The Alabama Court of Criminal Appeals, through Harris, J., quoted the above propositions in Barnett v. State, 51 Ala.App. 470, 286 So.2d 876, cert. denied, 291 Ala. 773, 286 So.2d 890.
“This Court is not unaware of the United States Court decision of Blackburn v. State of Alabama, 361 U.S. 199, 80 S.Ct. 274, 4 L.Ed.2d 242, wherein petitioner’s confession was held inadmissible because the evidence indisputably established the strongest probability that Blackburn was insane and incompetent at the time he allegedly confessed. This coupled with an eight or nine hour interrogation by law officers brought about the conclusion that Blackburn’s confession was involuntary. After a careful examination of the testimony of the instant case, we cannot say that the evidence here indisputably establishes the strongest probability of appellant’s insanity.
“The trial judge gave a lengthy and comprehensive charge to the jury on the question of sanity. At the end or the oral charge, defense counsel announced they were satisfied with the court’s charge.”

We are not unmindful that the appellant had been sent to Bryce Hospital and there originally determined to be suffering from a mental disorder in 1973. See original record, pages 15-17; also pages 21-22. However, appellant was subsequently determined to be sane and competent in July, 1975, and was returned to the Calhoun County Jail for trial. We believe that all of this evidence bears on the weight and credibility of the statements here admitted rather than as to their admissibility. (Authorities herein cited.)

In Cunningham v. State, 47 Ala.App. 730, 261 So.2d 69, we find this statement:

“ . . The rule governing expert medical testimony on the issue of insanity has been stated by the Supreme Court of Alabama in George v. State, 240 Ala. 632, 200 So. 602, as follows:
“ ‘The opinion of expert witnesses as to insanity are not conclusive upon the jury; they are to be weighed like other evidence, such evidence being intended to aid the jury, and its value depending largely upon the intelligence, experience, honesty and impartiality of the witness. The jury may reject it all, though it is without conflict. McAllister v. State, 17 Ala. 434, 52 Am.Dec. 180; Parrish v. State, 139 Ala. 16, 36 So. 1012.’ Hockenberry v. State, 246 Ala. 369, 20 So.2d 533. “Under the above, we are of the opinion that the trial court correctly submitted this issue to the jury.”

Despite our original misgivings as to the status of the transcript here tendered because a .verbatim court reporter’s copy is not available, we nevertheless conclude that the record here presented is free of error, and is due to be affirmed.

The judgment is therefore

AFFIRMED.

All the Judges concur.


author: TYSON, Presiding Judge. BOWEN, Judge, BOOKOUT, Judge. TYSON, Presiding Judge,

text:
    Delores DISMUKES v. STATE.
    5 Div. 355.
    Court of Criminal Appeals of Alabama.
    March 8, 1977.
    On Rehearing April 19, 1977.
    Rehearing Denied May 24, 1977.

      Elno A. Smith, Jr. and Frank L. Thiem-onge, III, Montgomery, for appellant.
    William J. Baxley, Atty. Gen. and Jack A. Blumenfeld, Asst. Atty. Gen., for the State, appellee.
   TYSON, Presiding Judge.

Appellant was charged with the first degree murder of her husband, “Patrick Dis-mukes, by shooting him with a pistol.” At trial the appellant was found guilty of first degree manslaughter, and her punishment was fixed at three years imprisonment. The trial court entered judgment in accordance with this verdict. The appellant’s motion for new trial was overruled.

The event giving rise to this indictment took place on July 5,1975, between 8:00 and 9:00 a. m. at the Kream Korner Cafe in Millbrook, Elmore County, Alabama. The appellant had gone to the Kream, Korner that morning to make a phone call from a booth located on southeast corner of the cafe’s parking lot. The appellant called a David Whetstone and arranged for him to move a house trailer that morning from its location at the Harbor Light Club, a night club owned by the deceased. Unknown to appellant was the fact that the deceased was inside the Kream Korner drinking coffee at the time she was placing her call to Mr. Whetstone. The deceased came out of the Kream Korner, got in his car, and drove across the parking lot to the phone booth. Shortly thereafter a heated argument broke out between appellant and deceased over her attempts to move the trailer, and, according to appellant’s testimony, the deceased told her:

“Dolores, any son of a bitch that touches that trailer to move it I am going to blow his brains out, and that includes yours.”

When appellant told him that she was determined to move the trailer and that Mr. Whetstone was on the way to do so, the deceased allegedly stated that, “Well you son of a bitch, I’ll kill you right now,” then turned toward his open car door. The appellant then pulled a .22 caliber pistol from her purse and shot the deceased five times. In the back seat of deceased’s car a loaded shotgun was found. The appellant pleaded self-defense to the charge.

I

Appellant contends that the State’s evidence as to the cause of death was insufficient to support her conviction. In short, the State failed to establish that Pat Dis-mukes died because he was killed by shots fired by the appellant. Welch v. State, 45 Ala.App. 657, 235 So.2d 906 (1970), and authorities therein cited.

In James v. State, Ala.App., 339 So.2d 1047 (1976), cert. denied Ex parte State ex rel. Attorney General, Ala., 339 So.2d 1052, this Court, through Judge Bookout, observed:

“The first step in a homicide case is to prove that the deceased died because she was killed. The causal connection between the deceased’s injuries and her death must be proved beyond a reasonable doubt and not by mere conjecture and speculation. Welch v. State, 45 Ala.App. 657, 235 So.2d 906 (1970). The proper method of proving cause of death is for the coroner or an attending physician to testify as to his opinion on the matter. Such an opinion should be based on an observation of the injury at the time of death. Lowery v. State, 55 Ala.App. 514, 317 So.2d 365, cert. denied 294 Ala. 763, 317 So.2d 372 (1975).”

In its effort to prove the causal connection between the wounds inflicted upon the deceased by appellant and the subsequent death of the deceased, the State offered the testimony of the Elmore County Coroner, Dr. Joseph Benson. Dr. Benson stated that in his opinion the death of the deceased resulted from a “[gjunshot wound of the head and/or chest.” (R. p. 8) However, Dr. Benson never personally examined the body of the deceased but derived his opinion after viewing photographs depicting the location of the wounds on the deceased’s body and talking with a Dr. Mracek whom he believed examined the deceased’s body. (R. p. 8)

Because the cause of death is a very critical element in a murder case, the prosecution cannot resort to “shortcut” methods in the proof thereof. Lowery v. State, 55 Ala.App. 514, 317 So.2d 365, cert. denied 294 Ala. 763, 317 So.2d 372.

The record discloses that a Dr. Mracek examined the body of the deceased at the Elmore County Hospital and there pronounced him dead. (R. p. 20) It cannot be questioned that Dr. Mracek would be the best source of proof as to the cause of death of the deceased. There was absolutely no showing by the State as to why he was not called to testify and to give an opinion on the cause of death based on his direct personal knowledge. Although the State may rely, and often must rely, on circumstantial or secondary evidence in its proof of the cause of death, it may not do so when, as here, there was an expert available who observed the victim at the time of death. James v. State, supra; Lowery v. State, supra. The method here resorted to by the State effectively denied the appellant the right of cross-examination of Dr. Mracek. Lowery v. State, supra.

George Potts, the emergency medical technician who responded to the ambulance call, may have been qualified as an expert to given an opinion on the cause of death. See Cobb v. State, 50 Ala.App. 707, 282 So.2d 327, and authorities therein cited. Potts testified that upon his arrival at the Kream Korner he examined the deceased and found no breathing, blood pressure, or carotid pulse. However, assuming Potts could possibly qualify as an expert who observed the injury at the time of death, he was not asked to give an opinion on the cause of death, nor was any other effort made to qualify him with the necessary expertise to so testify.

When there is available to the State a physician or other qualified expert who examined the deceased at the time of his death, that expert should be called to testify as to the cause of death or his absence explained. “Such a showing is incumbent on the State before it is allowed to prove the cause of death by inference [or other indirect evidence].” James v. State, supra.

For the error shown the judgment is reversed and the cause remanded.

REVERSED AND REMANDED.

BOOKOUT, J., concurs.

HARRIS, J., concurs in result.

BOWEN and DeCARLO, JJ., dissent with opinion.

BOWEN, Judge,

dissenting.

I must humbly and respectfully dissent from the opinion of my learned brothers.

In addition to the facts stated by Presiding Judge John C. Tyson, III, in the majority opinion, there are additional facts in the record which are significant to this dissent.

Neil Rucker, an investigator for the Department of Public Safety, testified that he saw the body of the deceased at the emergency room of the hospital the morning of the shooting and that he was present when the body was examined by Dr. Mracek. He took photographs of the wounds on the deceased which were five in number: one to the side of the head above the ear, one to the center of the chest, one to the front shoulder, one to the back of the shoulder, and one to the side of the deceased. Rucker also testified that he viewed the body of the deceased at the funeral home that same day and that the deceased was, in fact, dead.

A “volunteer emergency technician”, George Potts, testified that he examined the deceased at the scene of the crime to determine whether he was living or dead. While this witness did not given an opinion as to the cause of death and no effort was made to qualify him with the necessary expertise to testify to any causal connection, he did testify that he attempted to' aid the deceased but found no breathing, no blood pressure, and no carotid pulse. Furthermore, Mr. Potts testified that he saw the appellant at the scene and when he asked her what happened, she replied either, “I think he’s killed”, or “I think I killed him”.

The owner of the Kream Korner, Cecil Mims, stated that he heard some “popping sounds", looked out the window and saw the appellant with a pistol in her hand.

It is undisputed that the appellant shot the deceased and that the deceased did in fact die that same day.

The majority opinion relies on three opinions in reaching its conclusion: Welch v. State, 45 Ala.App. 657, 235 So.2d 906 (1970); Lowery v. State, 55 Ala.App. 514, 317 So.2d 365, cert. denied, 294 Ala. 763, 317 So.2d 372 (1975); and James v. State, Ala.App., 339 So.2d 1047, cert. denied, Ex parte State ex rel. Attorney General, Ala., 339 So.2d 1052 (1976). Each of these cases is distinguishable upon the facts alone and all three cases are distinguished from the case at bar by one central circumstance: Welch, Lowery, and James each involved a “death” as distinguished from a “killing”. In each of the three cases cited by the majority, a period of time intervened between the infliction of the fatal wound and death. In Welch, it was 67 days; in Lowery, 31 days; and in James,, the evidence failed to show when the deceased died. This distinction is clearly set forth in Welch :

“In a death as distinguished from a ‘killing’, the prosecution must prove an absence of natural causes. That is, the first step is to prove the victim died because he was killed.” Welch, 45 Ala.App., at 658, 235 So.2d at 907, emphasis added.

In the three cases cited above the same general factual issue was presented: What was the sole cause of death; was it the defendant who was the guilty agent who produced or contributed to the death of the deceased or was the sole cause of death some bodily or physical malfunction or disease, in no way superinduced or contributed to by the conduct of the defendant? See Duncan v. State, 30 Ala.App. 356, 6 So.2d 450 (1942). In those cases, a “chain of causation” is involved. Welch, supra, at 663. Not so here.

This dissent is governed by the principle that the question of whether under all the circumstances death was the result of the wound inflicted by a defendant is one of fact to be determined by the jury. If there is any proof, direct or circumstantial, to establish the corpus delicti, the sufficiency of the proof is for the jury and not for the court. Gurley v. State, 36 Ala.App. 606, 61 So.2d 137 (1952); Cook v. State, 43 Ala.App. 304, 189 So.2d 595 (1966); Lawman v. State, 18 Ala.App. 569, 93 So. 69 (1922); McCall v. State, 262 Ala. 414, 79 So.2d 51 (1955); Harvey v. State, 15 Ala.App. 311, 73 So. 200 (1916); McDonald v. State, 56 Ala.App. 147, 320 So.2d 80 (1975). In not one of these cases did an expert testify on death or on causation thereof. The sufficiency of the proof of the corpus delicti was held to be a question for the jury.

The majority, in direct reliance on James, supra, states the rule as follows:

“When there is available to the State a physician or other qualified expert who examined the deceased at the time of his death, that expert should be called to testify as to the cause of death or his absence explained. ‘Such a showing is incumbent on the State before it is allowed to prove the cause of death by inference (or other indirect evidence)’. James v. State, supra.” Emphasis added.

This rule, in the opinion of the writer states that the State does not absolutely have to call an expert to testify to cause of death; yet before the State can prove the cause of death by inference, it must show why an expert was not called if one examined the deceased at the time of his death.

The James holding as extended by Dis-mukes, flies squarely in the face of Slaughter v. State, 21 Ala.App. 211, 106 So. 891 (1926). In Slaughter, the deceased died within sixteen days after being shot in the abdomen with an automatic pistol. There was eyewitness testimony as to the fact of the shooting and nonexpert testimony as to the number and location of the bullet holes in the deceased’s body. In Slaughter, the court conceded that it would have been the better practice to have subpoenaed a surgeon who had performed an operation upon the deceased and attended him until his death. The appellate court nevertheless affirmed a conviction of second-degree murder, stating that the testimony was amply sufficient to authorize the jury to conclude that the deceased had died as a result of the pistol wounds. See also Hall v. State, 34 Ala.App. 246, 38 So.2d 612 (1949) (“Under these undisputed facts no experts were necessary to prove the cause of his death; and certainly the jury was not required or called upon to guess, conjecture, or resort to suspicion on the question as to the cause of deceased’s death.” 34 Ala.App. 248, 38 So.2d 614).

In not one single case cited by this writer other than Welch, Lowery, and James, has expert testimony been required to determine the cause of death or has any explanation been required. In other Alabama cases, such testimony has been required. Jones v. State, 155 Ala. 1, 46 So. 579 (1908). This apparent inconsistency is a real one and has resulted from a loose construction of the application of the legal principles involved to each specific factual situation.

In this case the cause of death was obvious. McDonald, supra; James, supra, at 1052. The causal relationship between the act of the accused inflicting the wound and the death of the deceased was not obscure or beyond the knowledge of the average layman. A dangerous weapon was used and there was no evidence presented or even suggested that the accused died from anything but the bullet wounds inflicted by the appellant. The appellant entered a plea of self defense; she told the volunteer emergency technician that she had killed the deceased. On the witness stand, the appellant admitted shooting the deceased. This case should not be reversed on evidence such as this nor should this court substitute its findings for those of the jury which convicted the appellant.

Expert medical testimony as to the cause of death should be admissible in all homicide cases. It should be regarded as necessary and essential for a conviction in many homicide cases and in those where death is not the natural and probable consequence of the unlawful act of the accused or the result of an independent intervening cause in which the accused does not participate and which he could not foresee.

The judgment of the trial court should be affirmed.

DeCARLO, J., concurring in this dissent.

ON REHEARING

BOOKOUT, Judge.

On rehearing, I am convinced that the reversal should be set aside and the conviction should be affirmed. A more careful consideration of the record and the cases bearing on proof of cause of death prompts me to this conclusion.

In the instant case, the examining physician was not called as a witness, although he and the coroner, who was called, resided in the same town where the trial was held. No reason was shown for failure to call the attending physician. The State attempted to prove cause of death by the coroner, who: (1) did not identify the body as that of the deceased, as named in the indictment, and (2) based his opinion on previously viewing photographs of a body he had not examined and which was not identified as the deceased, and also based upon a purely hearsay conversation he had previously had with the attending physician.

Both the coroner’s testimony and the photographs of an unidentified body, authenticated by witness Neal Rucker, proved absolutely nothing when admitted into evidence. A witness cannot testify that wounds shown in a photograph were in fact the cause of death, without ever having examined the body. The wounds could have been inflicted after death by any number of other means. An expert witness may state that in his opinion the type wound depicted in the photograph would ordinarily cause death, but he cannot say that the wound shown in the photograph did in fact cause death without having seen the body.

In fact, when the coroner testified, the photographs had not been introduced into evidence, and he did not view them in the courtroom. All we can say for the coroner’s testimony was that at some prior time he had used some photographs of a man that he was told was shot in the Millbrook area of Elmore County; and that he had based his opinion on the cause of death of that unknown man upon the photographs and upon what another doctor told him, "who did, I believe, see the body.” Such testimony, as pitifully insufficient as it was, resulted in no error, however, because the appellant never objected to one word of it.

The problem with the instant case, at first glance, is that the State attempted to prove cause of death by use of expert testimony, but used the wrong expert. The problem was complicated by introducing photographs of a dead body that the photographer never identified. Again, no objection was interposed by the appellant. In the absence of a proper objection and ruling thereon, adverse to the appellant, we have nothing to review. Frazier v. State, 53 Ala.App. 492, 301 So.2d 256 (1974). I am compelled to the conclusion that the cause of death may be proved in certain instances without expert testimony.

There are cases where the killing is almost immediate or simultaneous with the commission of the crime, such as the shooting of a person five times. Where witnesses observe this, find no pulse and no blood pressure, and state that the person appears to be dead, the cause of death is fairly obvious and, therefore, may be proved by circumstantial evidence without expert testimony. However, (1) where the act which the State claims to have caused death is remote in time from the actual death, or (2) where there is a possibility or likelihood that an intervening cause could have brought about death, or (3) where the nature of the injury is not one that is ordinarily likely to cause death, or (4) where there is not an obvious casual connection between the nature of the injury and the death, then the State is under a burden to present expert testimony to show that the injury in fact resulted in and caused the death in question.

In McDonald, supra, the shooting and death were almost simultaneous, in the presence of witnesses, and the cause of death was so obvious that it would have been absurd to have claimed that an intervening cause resulted in death. Going a little further, in James, supra, the wounds inflicted upon the deceased were possibly the result of a beating or possibly the result of falling from a moving vehicle. There was no testimony as to when death occurred after the wounds were inflicted. There, it was incumbent upon the State to produce evidence to show that death was in fact the result of the wounds inflicted by the appellant, as there were no witnesses to the act. Going a bit further yet, in Lowery, supra, the appellant was treated for gunshot wounds in Montgomery at a hospital, operated on four times, then sent to Birmingham for further treatment, where death occurred ten days later. The Birmingham physician who could definitely testify as to cause of death did not testify, but rather a Montgomery physician who had not seen the deceased for ten days prior to his death was called to testify as to cause of death. There, the gunshot wounds were such that were likely to have caused death, i. e., use of a deadly weapon, but because of the remoteness of time between the actual injury sustained and the death, any number of things could have intervened to cause death. Thus, where the time between the act inflicting the injury is remote from the death, the rule is different than when the act inflicting the injury immediately causes death. This is especially so where the act causing immediate death is committed in the presence of witnesses.

Considering the instant case, it seems to fall more closely to the facts in McDonald than to those in either James or Lowery, supra, in that there was an immediate infliction of five gunshot wounds upon the deceased by the appellant in the presence of witnesses. A key witness stated that he was unable to find a pulse or blood pressure, and the appellant told him that she thought she had killed the deceased. Here, there was more causal connection between the act (use of a deadly weapon) and its consequences (death) than there was in either James or Lowery.

This case should not be construed by the State to mean that it is no longer necessary to prove cause of death by expert testimony in any case. We still adhere to our decisions in Lowery and James and to our admonition in James that the rationale applied in McDonald, supra, would not be extended beyond the facts set out therein. This case falls within those facts. The application for rehearing should be granted, our prior reversal in this cause should be set aside, and the conviction should be affirmed.

Application granted; judgment of reversal set aside; dissenting opinion issued on March 8, 1977, becomes the majority opinion; majority opinion becomes a dissenting opinion; cause affirmed.

HARRIS and DeCARLO, JJ., concur in dissenting opinion of BOWEN, J., issued March 8, 1977.

BOOKOUT, J., concurs specially.

TYSON, P. J., dissents.

TYSON, Presiding Judge,

dissenting.

I adhere to the views expressed by me in behalf of a then majority of this Court expressed on original deliverance on March 8, 1977, in this cause.

Because of the change of position of two of my brethren and the dissent of two others, I feel compelled to make the following observations:

Former Presiding Judge Bricken, in James v. State, 28 Ala.App. 225, 181 So. 709, stated in construing Article 1, Section 6, of the Constitution of Alabama 1901:

“The constitution of this State, section 6, provides that no person shall be deprived of life, liberty or property, except by due process of law; and, as has been often stated, ‘[I]t is the manifest purpose of this provision to accord to the citizen security against the arbitrary action of those in authority, and to place him under the protection of the “law of the land,” which is synonymous with the expression, “due process of law.” ’
“In order that it may be affirmatively ascertained that due process of law prevails in every criminal case, the statute makes it incumbent upon the appellate courts, without assignment of error, to ‘consider all questions apparent on the record,’ and to see that in all things the proceedings as shown by the record are regular. Code 1923, Section 3258.”

On record page 141, the appellant s counsel, at the close of the presentation of the State’s case, made a motion to exclude the evidence, wherein he noted:

“. . . The State has failed to prove the four elements necessary to prove a case of murder in the first degree.”

Clearly, such objection and motion raised the failure of the State to properly produce evidence as to the cause of death in this cause. The medical technician, George Potts, simply examined the deceased at the scene and found no breathing or pulse. Potts, however, expressed no opinion, nor was he called upon to do so in his testimony.

Two State’s witnesses testified that they heard “popping sounds,” but no single State’s witness positively stated that they saw the appellant fire the weapon at the deceased. There was, however, an inculpa-tory statement in the form of a spontaneous explanation by the appellant at the scene to the effect that she had shot him. Construed most favorable to the State, all that can be said is that the appellant presumably fired five times with a .22 caliber pistol in the direction of the deceased. Thus, in my judgment, it becomes all the more critical that the State establish that the death resulted from the wounds inflicted by the appellant. In attempting to prove this, in my judgment, we have a complete breakdown of due process of law as is required by Article 1, Section 6, Constitution of Alabama 1901; and Amendment 14, Constitution of the United States.

As noted on original deliverance, the State used shortcut methods by ..presenting the testimony of a physician, Dr. Benson, who had “talked to the physician who examined the deceased’s body at the Elmore County Hospital, one Dr. Mracek.” Not only was Dr. Mracek not called to testify, but no reason is shown for the State’s failure to present his testimony. Thus, the State effectively denied the appellant the right of cross-examination of Dr. Mracek, in violation of Article 1, Section 6, Constitution of Alabama 1901, and the 6th and 14th Amendments to the Constitution of the United States.

I am therefore firmly of the opinion that the error is here preserved and is of such a basic nature as to require reversal of this cause. Title 15, Section 389, Code of Alabama 1940.


author: BLOODWORTH, Justice.

text:
    Ex parte Delores DISMUKES.
    SC 2609.
    Supreme Court of Alabama.
    June 17, 1977.
   BLOODWORTH, Justice.

WRIT DENIED.

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