author: TORBERT, Chief Justice. BLOODWORTH, Justice MADDOX, Justice

text:
    J. D. KELLER v. Ronnie KIEDINGER, et al.
    78-546.
    Supreme Court of Alabama.
    Aug. 29, 1980.
    Rehearing Denied Oct. 17, 1980.

      Ralph E. Coleman, Birmingham, for appellant.
    Herbert W. Peterson of Rives, Peterson, Pettus, Conway, Elliott & Small, Birmingham, for appellees.
   TORBERT, Chief Justice.

Plaintiff below appeals from the trial court’s grant of summary judgment based on facts stipulated by the parties. We affirm.

The stipulated facts are as follows: The defendant, Ronnie Kiedinger, who was eighteen years of age at the time, allowed Denise Keller, who was fourteen years of age at the time, to drive his aunt’s car. Ronnie had permitted Denise to drive the car previously, and, on those occasions, she drove without accident or apparent problem. On this day, however, Denise drove across the center line into the wrong lane. She swerved to miss an oncoming car and lost control of the car she was driving, finally overturning into a pond where she drowned.

The complaint alleges that Ronnie Kied-inger’s violation of Code 1975, § 32-5-65, was negligence per se, and that his negligence proximately caused the death of Denise Keller. The defendant responds by asserting that the complaint fails to state a cause of action. Additionally, defendant denies the allegations of the complaint and pleads contributory negligence.

As father of the deceased minor, J. D. Keller filed suit pursuant to Code 1975, § 6-5-391. Under the statute, plaintiff’s cause is derivative-his right of action depends on the right of the child, if she had survived, to maintain the action. Wolfe v. Isbell, 291 Ala. 327, 280 So.2d 758 (1973). Unless Denise Keller died with a cause of action against Ronnie Kiedinger, J. D. Keller would have no cause of action against' Kiedinger.

Defendant contends that our past cases preclude a cause of action for negligent entrustment by an injured bailee. Our attention is directed to eases which appear to hold that a suit for negligent entrustment can be brought only by injured third parties. This Court has stated: “Liability in such cases depends [on] .. . injury to a third person resulting proximately from the incompetence of the bailee.” Rush v. McDonnell, 214 Ala. 47, 50-51, 106 So. 175, 177 (1925) (emphasis supplied). Other Alabama decisions speak of injury to third persons as an element of negligent entrustment. See, e. g., Redmond v. Self, 265 Ala. 155, 90 So.2d 238 (1956); Spurling v. Fillingim, 244 Ala. 172, 12 So.2d 740 (1943). Those cases, however, came to us as suits by injured third parties against entrustors. We interpret the cases to require proximate personal injury, but we believe the cases speak of injury to third persons only because an injured third person was before the court as a party.

Only one reported Alabama case questions whether a bailee has a cause of action against his entrustor. In McDermott v. Hambright, 286 Ala. 249, 238 So.2d 876 (1970), the bailee’s administrator alleged that the defendant entrusted his automobile to decedent knowing him to be “wholly incompetent and unfit to drive.” In the opinion the court expressed doubt that the bailee has a cause of action under the theory of negligent entrustment, but we specifically declined to decide the issue. See, Id. at 251, 238 So.2d at 876.

Defendant, in support of his claim that a negligent entrustment cause is for third persons, argues that an action for negligent entrustment requires two acts of negligence-that of the entrustor in supplying the chattel and that of the bailee causing the injury. If this is true, defendant continues, there can be no cause of action for the bailee because, by definition, the cause requires the contributory negligence of the bailee.

We candidly acknowledge some past Alabama cases indicate that negligence on the part of the bailee is necessary in order for the injury to be proximately caused by the act of entrustment. See, e. g., Cooter v. State Farm Fire and Casualty Co., 344 So.2d 496 (Ala. 1977); McDermott v. Hambright, 286 Ala. 249, 238 So.2d 876 (1970); Dean v. Johnston, 281 Ala. 602, 206 So.2d 610 (1968); McGowin v. Howard, 251 Ala. 204, 36 So.2d 323 (1948). A correct statement of the rule, however, requires that the injury be proximately caused by the incompetence of the bailee. See, Rush v. McDonnell, 214 Ala. 51, 106 So. 178 (1925) (on rehearing). The distinction between a bailee’s incompetence and his negligent operation of a car is made clear by Justice Somerville:

We are not confusing the liability of the driver of the car, or of his principal, for the negligent operation of the car, with the liability of the owner or custodian of the car for intrusting its operation to an incompetent driver. The two phases of liability are separate and distinct, and in the latter case the liability is not based upon the doctrine or respondeat superior. Yet the injurious conduct of the bailee, resulting from his incompetency as a driver, is a necessary factor to the liability of the owner or custodian, without which the wrongful bailment could not be said to be the proximate cause of the injury. Hence any consideration of the owner’s liability must involve also a consideration of the conduct of the bailee and of his legal culpability.

Id. at 51, 106 So. at 178-79 (citation omitted). „

An Alabama Law Review commentary further focuses the “incompetent bailee” requirement in negligent entrustment actions:

Negligent entrustment is not a case of combined negligence; the entrustor’s liability rests solely on his own negligence. A person who entrusts a motor vehicle to a known incompetent has himself committed a negligent act, and he is liable for all injuries proximately resulting therefrom. The entrustment is negligent because an unreasonable risk of harm is created by placing control of a motor vehicle in the hands of an incompetent driver. Thus the incompetence of the driver and not his negligence should be the test for the proximate cause of the plaintiff’s injuries.

Comment, Negligent Entrustment in Alabama, 23 Ala.L.Rev. 733, 750 (1971) (footnotes omitted).

The rule is logical-in some cases the incompetence of the bailee may render him incapable of legal negligence. In other cases, the entrustment may proximately result in injury without negligence on the part of the bailee. See Comment, Negligent Entrustment in Alabama, 23 Ala.L.Rev. 733, 751 (1971) (example). We find, therefore, that negligence on the part of the bailee is not a necessary element of negligent entrustment. Past cases to the contrary are overruled on the point.

It appears, then, the issue of a bailee’s right of action for negligent en-trustment is an issue not yet decided in this state. The Restatement would extend the entrustor’s liability to his bailee:

Chattel for Use by Person Known to be Incompetent
One who supplies directly or through a third person a chattel for the use of another whom the supplier knows or has reason to know to be likely because of his youth, inexperience, or otherwise, to use it in a manner involving unreasonable risk of physical harm to himself and others whom the supplier should expect to share in or be endangered by its use, is subject to liability for physical harm resulting to them.

Restatement (Second) of Torts § 390 (1965) (emphasis supplied). After careful consideration, we are convinced the Restatement proposes the best view, and we adopt § 390 as the law of this state.

Having decided a cause of action lies for a bailee against a negligent entrustor, we turn to plaintiff’s contention that Ronnie Kiedinger’s entrustment of the automobile to Denise Keller was per se negligent. Plaintiff cites Code 1975, § 32-5-65:

Any owner or person in charge of any motor vehicle who permits any child under the age of 16 years to operate such motor vehicle upon the public highways of this state ... shall be guilty of a misdemeanor ....

Id.

We have in the past set down the requisite proof for a ease of negligence per se, see, Fox v. Bartholf, 374 So.2d 294 (Ala. 1979), but we find it unnecessary to apply the doctrine in the case before us.

Without regard to plaintiff’s charge that the defendant’s act was negligent per se, the stipulated facts show, as a matter of law, Denise Keller was contributorily negligent. Contributory negligence is a defense to a bailee’s claim against his bailor for negligent entrustment. We quote a comment to § 390:

The rule stated in this Section sets out the conditions under which a supplier of a chattel is subject to liability. As always this phrase denotes that a supplier is liable if, but only if, his conduct is the legal cause of the bodily harm complained of and if the person suffering the harm is not subject to any defense such as contributory negligence, which will prevent him from recovering damages therefor. One who accepts and uses a chattel knowing that he is incompetent to use it safely or who associates himself in the use of a chattel by one whom he knows to be so incompetent, or one who is himself careless in the use of the chattel after receiving it, is usually in such contributory fault as to bar recovery. If, however, the person to whom the chattel is supplied is one of a class which is legally recognized as so incompetent as to prevent them from being responsible for their actions, the supplier may be liable for harm suffered by him, as when a loaded gun is entrusted to a child of tender years. So too, if the supplier knows that the condition of the person to whom the chattel is supplied is such as to make him incapable of exercising the care which it is reasonable to expect of a normal sober adult, the supplier may be liable for harm sustained by the incompetent although such person deals with it in a way which may render him liable to third persons who are also injured.

Restatement (Second) of Torts § 390, Comment c (1965). According to the comments, contributory negligence will bar the bailee’s claim unless the bailee’s lack of capacity makes him incapable of contributory negligence, or unless the bailor’s entrustment was so reckless as to constitute wanton entrustment. In cases of negligent entrustment, as in any negligence case, the defense of contributory negligence reflects the strong public policy that one should not benefit from his own negligence.

Our cases uniformly hold a child over the age of fourteen years is capable of contributory negligence. See, e. g., Evans v. Buck Creek Cotton Mills, 231 Ala. 75, 163 So. 591 (1935), Beavers v. Southern Railway Company, 212 Ala. 600, 103 So. 887 (1925). Additionally, when a child operates an automobile, he engages in an adult activity, and the public interest requires the minor be held to an adult standard of care. Gunnells v. Dethrage, 366 So.2d 1104 (Ala. 1979). Under our past decisions Denise Keller is capable of contributory negligence, and, absent wanton entrustment, her contributory negligence will bar the claim of negligent entrustment.

Whether Denise was contributorily negligent per se, we do not decide. Negligence, however, may be accomplished without regard to violation of a statute. Irrespective of §§ 32-5-55 (driver required to drive on the right side of highway) and 32-5-64 (persons under sixteen prohibited from driving), a reasonable person does not drive on the wrong side of the road as a car approaches from the opposite direction.

The stipulated facts show Denise was a fourteen-year-old who had satisfactorily driven the car on several previous occasions. Just before the accident, she was driving on the wrong side of the road, making it necessary to dodge an oncoming car. When she dodged the ear, she lost control of the car she was driving and was killed.

Although application of the expected standard of care and questions of proximate cause are normally for the jury, at the point reasonable men cannot differ, questions of fact may be decided as matters of law. Baptist Medical Center v. Byars, 289 Ala. 713, 271 So.2d 847 (1972). The record before us is devoid of evidence demonstrating the aggravated, reckless conduct of the defendant which is necessary for the action of wanton entrustment. Further, whether Denise is held to the standard of care of an adult, or whether she is held to the standard expected of a fourteen-year-old, the stipulated facts show as a matter of law her negligence caused her death.

AFFIRMED.

FAULKNER, ALMON and EMBRY, JJ., concur.

BLOODWORTH, J., concurs in the result only.

MADDOX, J., with whom JONES, SHORES and BEATTY, JJ., join, dissents.

BLOODWORTH, Justice

(concurring in result only.)

I concur in the result only. I think the raison d’etre for the Chief Justice’s opinion is specious. I would continue to hold to the rule I expressed in McDermott v. Hambright, 286 Ala. 249, 238 So.2d 876 (1970), that in order for a bailor to be guilty of negligent entrustment not only must he be guilty of negligence in the entrustment but the bailee must be negligent in the operation of the vehicle. Otherwise, the negligent bailor could be held liable for the acts of a non-negligent bailee-an inconsistent result.

MADDOX, Justice

(dissenting).

The majority correctly adopts Restatement (Second) of Torts § 390 (1965), which states that a person who entrusts a chattel to a known incompetent can be liable when the incompetent harms himself, but misconstrues the application of that rule by applying a reasonable person standard to the acts of the known incompetent. Because I think the majority has misconstrued the application of the negligent entrustment rule when a known incompetent harms himself, I shall discuss at length the question of when and under what circumstances a person who entrusts a chattel to an incompetent can be liable when the incompetent harms himself, and I shall also discuss what I think are the available defenses in such an action. I shall conclude by discussing why I think the majority errs by upholding the trial court’s granting of summary judgment on the ground that the unlicensed driver, as a matter of law, contributed to her own death.

THE DOCTRINE OF NEGLIGENT ENTRUSTMENT

This is the first case, insofar as I can tell, which seeks to impose liability upon a person who entrusts a chattel to an incompetent when the incompetent harms himself.

This Court has for many years permitted third persons injured as a result of the negligence of an incompetent minor to recover from the party who negligently entrusted the vehicle to the incompetent. Rush v. McDonnell, 214 Ala. 47, 106 So. 175 (1925). The gravamen of the cause of action was stated in Paschall v. Sharp, 215 Ala. 304, 110 So. 387 (1926):

“Any person under 16 years of age is conclusively presumed incompetent to drive an automobile on the public highways of Alabama; and any person who allows such a vehicle to be operated by a person, a minor, under 16 years of age, upon the public highways of this state, unaccompanied by an adult person, is guilty of negligence as a matter of law.” (Emphasis added.)

Recovery is permitted on the theory that the statutes were enacted in order to protect the public from those persons whom the legislature has deemed to be incompetent to operate a motor vehicle. McDermott v. Hambright, 286 Ala. 249, 238 So.2d 876 (1970). This Court, in McDermott, by dicta, apparently thought that the negligent entrustment doctrine permitted recovery only by third persons, because the Court there stated:

“Since we conclude that plaintiff’s complaint is demurrable on other grounds, we do not decide whether there is a cause of action in Alabama for the death of the bailee himself on a theory of negligent entrustment. However, as defendant points out in brief, the negligent entrustment doctrine does seem to have been limited to injuries to third persons. The reason for this doctrine, as a Texas Court of Civil Appeals indicates in Rodgers v. McFarland, 402 S.W.2d 208, 210 (1966) is:
“ ‘... It is founded in tort-the negligence of the owner in turning the incompetent loose on the public.’ [Emphasis added.]”

The McDermott court wrote too much. In the first place, the Texas case (Rodgers), used by this Court in McDermott as authority for the proposition that the incompetent could not sue for harm caused to himself, was not a suit by the incompetent against the owner, but, rather, was a suit by a third person ; therefore, the portion of the opinion in Rodgers v. McFarland, which was quoted in McDermott, was dicta. I am pleased that the majority has not followed the dicta in McDermott, but has held that one who supplies a chattel for use by a person known to be incompetent can be held liable for harm which the entrustee causes to himself.

The critical question is: When and under what circumstances should a supplier of a chattel to a known incompetent be held liable for harm suffered by the incompetent himself which is caused by his own act? Restatement (Second) of Torts § 890 (1965), discusses the question and states the rule as follows:

“§ 390. Chattel for Use by Person Known to be Incompetent
One who supplies directly or through a third person a chattel for the use of another whom the supplier knows or has reason to know to be likely because of his youth, inexperience, or otherwise, to use it in a manner involving unreasonable risk of physical harm to himself and others whom the supplier should expect to share in or be endangered by its use, is subject to liability for physical harm resulting to them.” (Emphasis added.)

It is clear that the Restatement does not single out the incompetent and say he must go without a remedy. The majority correctly adopts the same reasoning by adopting the Restatement.

By adopting the Restatement, the Court has adopted a rule which is reasonable, because it leaves to the trier of fact the critical questions regarding liability in such cases. Other courts have left these triable issues to juries. In Greenwood v. Gardner, 189 Kan. 68, 366 P.2d 780 (1961), the Supreme Court of Kansas, in a negligent en-trustment case involving the violation of a statute, held that a cause of action was stated, and held that the issue of proximate causation was a jury question. Greenwood involved a ten-year-old child who sued his grandfather for damages he allegedly sustained because his grandfather permitted him to drive an automobile.

The legislature has made the entrustment of an automobile to a person under sixteen a misdemeanor (Code 1975 § 32-5-65) and this Court has stated that “any person under sixteen years of age is conclusively presumed incompetent to drive an automobile . ...” Rush v. McDonnell, supra. I recognize that Code 1975, § 32-5-64, provides that it is a juvenile offense when a child under sixteen operates a motor vehicle, but does the minor’s violation of this statute bar his, or his parents’, right to recover for harm occasioned by the entrustment of an automobile to him in violation of Code 1975, § 32-5-65? I think not, and I will discuss this point in this dissent under the section dealing with allowable defenses. Juvenile offenders are treated differently under our laws. A child’s lack of capacity to commit the offense would be an available defense to the child in a juvenile proceeding involving the child’s violation of the statute. I would conclude that the statutes prohibiting a child under the age of sixteen from driving an automobile and the statute prohibiting another from permitting a child under sixteen to drive were enacted for the protection of the child as well as the public. The crucial issue always is the capacity of the child whether presented in a criminal or civil case. In a negligence suit, capacity is a jury question, regardless of the age of the incompetent.

In resolving the capacity issue, I would point out that the statutory scheme of legislation pertaining to juvenile offenses is that juveniles generally lack the capacity and maturity to appreciate the dangers associated with their conduct; therefore, the legislature has provided a separate scheme of punishment or treatment, whichever is the appropriate term, for the juvenile offender.

It was a jury question whether the person allowing this young child to drive could have reasonably foreseen that she might harm herself. This is especially true here where the defendant is shown to have violated a statute. The injury here was of a type contemplated by the statute. As I have previously stated, the statute is designed not only to protect the public from harm, but also is designed to protect the incompetent driver as well. It naturally follows that one of the harms that the child must be protected from is the child’s own personal injury or death which results from his operation of the automobile. An automobile in the hands of a known incompetent can be a “dangerous instrument.” [Cf. McGowin v. Howard, 246 Ala. 553, 21 So.2d 683 (1945)]. Unquestionably, the injury to the alleged incompetent in this case was of a type contemplated by the statute. In any event, whether the negligent entrustment of the vehicle to the alleged incompetent child proximately caused the injury is yet to be determined. I would hold that the question of proximate causation is one for the trier of fact.

ALLOWABLE DEFENSES

The majority attaches great significance to the stipulation of facts, and concludes that: “A reasonable person does not drive on the wrong side of the road as a car approaches from the opposite direction.” (Emphasis added.) By applying the reasonable person standard to one this Court has stated is conclusively presumed to be incompetent, the majority convinces me that it fails to appreciate the theory of liability in a negligent entrustment case. Admittedly, the plaintiff may have a difficult time convincing the trier of fact that he should recover, but I respectfully suggest that he should have the right to try.

There are defenses to a negligent en-trustment action, and I will discuss them, but before I do, let me say that it is patently erroneous for the majority to hold that the stipulation forecloses fact questions on defendant’s negligence, the decedent’s contributory negligence, and proximate causation.

I will now discuss available defenses. Some available defenses are discussed in the comment to Restatement (Second) of Torts § 390 (1965), as follows:

“c. The rule stated in this Section sets out the conditions under which a supplier of a chattel is subject to liability. As always this phrase denotes that a supplier is liable if, but only if, his conduct is the legal cause of the bodily harm complained of and if the person suffering the harm is not subject to any defense such as contributory negligence, which will prevent him from recovering damages therefor. One who accepts and uses a chattel knowing that he is incompetent to use it safely or who associates himself in the use of a chattel by one whom he knows to be so incompetent, or one who is himself careless in the use of the chattel after receiving it, is usually in such contributory fault as to bar recovery. If, however, the person to whom the chattel is supplied is one of a class which is legally recognized as so incompetent as to prevent them from being responsible for their actions, the supplier may be liable for harm suffered by him, as when a loaded gun is entrusted to a child of tender years. So too, if the supplier knows that the condition of the person to whom the chattel is supplied is such as to make him incapable of exercising the care which it is reasonable to expect of a normal sober adult, the supplier may be liable for harm sustained by the incompetent although such person deals with it in a way which may render him liable to third persons who are also injured.
“ILLUSTRATION:
“7. A, who makes a business of letting out boats for hire, rents his boat to B and C, who are obviously so intoxicated as to make it likely that they well mismanage the boat so as to capsize it or to collide with other boats. B and C by their drunken mismanagement collide with the boat of D, upsetting both boats. B, C, and D are drowned. A is subject to liability to the estates of B, C, and D under the death statute, although the estates of B and C may also be liable for the death of D.”

Both parties agree that contributory negligence by the entrustee which proximately contributed to her death would bar recovery. That is not the issue. The issue is whether contributory negligence, as a matter of law, was shown in this case. The majority holds that the stipulated facts show “[irrespective of §§ 32-5-55 (driver required to drive on the right side of the highway) and 32-5-64 (persons under sixteen prohibited from driving)” as a matter of law, that the deceased minor child proximately contributed to her own death. I do not think so.

I know that defendant’s argument that the violation of a statute by plaintiff’s decedent necessarily constituted contributory negligence on the decedent’s part is not the law; In McCaleb v. Reed, 225 Ala. 564, 144 So. 28 (1932), this Court held:

“That the violation of a statute or an ordinance shall be such contributory negligence by plaintiff as to prevent a recovery by him for the simple primary negligence of defendant, it must be that the statute or ordinance was enacted for the benefit of the defendant or a class of which he is a member, as distinguished from some other class or the public as a whole (Watts v. Montgomery Traction Co., 175 Ala. 102, 57 So. 471), and that it was a proximate contributory cause of the injury. Cooper v. Agee, 222 Ala. 334, 132 So. 173.”

See also 65A C.J.S. Negligence § 127 (1966).

The statute which makes it a juvenile offense for a person under sixteen to operate a motor vehicle was not enacted for the benefit of persons who themselves violate the law by allowing a person under sixteen to operate an automobile.

Having said all of the above, I recognize that under certain circumstances, the supplier of a chattel could plead as a defense the capacity of the person to whom the chattel is supplied. What are those circumstances? In the ordinary case, the supplier of a chattel would have available to him the defense that the child had the capacity of an adult and therefore could be guilty of contributory negligence. Clearly, children can be guilty of contributory negligence. It has been written:

“At common law, the time of infancy is usually regarded as divided into three distinct periods as to which distinct presumptions of capacity or incapacity prevail. Thus, an infant under the age of seven is conclusively presumed to have no capacity to commit a crime. Between the ages of seven and fourteen, or in some jurisdictions twelve, there is a presumption in favor of his incapacity, but such presumption is merely prima facie and rebuttable, and varies in strength with the age of the infant, decreasing in strength as the infant increases in years. On the other hand, after fourteen years of age, he is presumed to be capable of committing crime and of being responsible therefor in the same manner as in the case of an adult, although the presumption is subject to proof as to the real fact.
“These common-law rules are followed in the various states, modified in many, however; by statutes which generally have tended to increase the limit of the age within which the presumptions of incapacity exists.” (Emphasis added.) 43 C.J.S. Infants § 204 (1978). See also Berry v. State, 209 Ala. 120, 95 So. 453 (1923).

In this case, however, the chattel supplied was an automobile and the legislature has fixed the age of capacity to operate an automobile at sixteen. Children under sixteen can drive under certain circumstances not relevant to this case. Code 1975, § 32-5-64.

Because the legislature has set the age of capacity of a child to operate an automobile at sixteen, a child under sixteen is presumed to be incompetent to operate an automobile; however, incompetence is not synonymous with negligence; nor is competence synonymous with prudence, for the most competent may be negligent and the incompetent may under the circumstances have been prudent. Dean v. Johnston, 281 Ala. 602, 206 So.2d 610 (1968).

The Restatement comment, above quoted suggests that contributory negligence of the entrustee will not bar recovery “if the supplier knows that the condition of the person to whom the chattel is supplied is such as to make him incapable of exercising the care which it is reasonable to expect of a normal sober adult. ... ” Applying that rule to this case, I say the question is: Did the supplier of the automobile know that the condition of the child was such that the child was incapable of exercising the care which it is reasonable to expect of a normal sixteen-year-old (sixteen being the statutory age of capacity)? Stated differently, if the supplier of the chattel knew that the child did not possess the capacity of a sixteen-year-old, then he cannot plead the child’s negligence as a bar to recovery. Stated thus, the rule is similar to that involving the capacity of minors generally to be capable of negligence, except that the legislature has extended the age of capacity in cases involving the operation of an automobile from fourteen to sixteen.

SUMMARY JUDGMENT INAPPROPRIATE

The law in this state is inveterate that motions for summary judgment must be denied if under any conceivable set of provable circumstances the plaintiff may recover under a cognizable theory of law. Harbour v. Colonial Fast Freight Lines, Inc., 336 So.2d 1100 (Ala. 1976). Holloway v. Government Emp. Ins. Co., 295 Ala. 328, 329 So.2d 529 (1976); Horton v. Northeast Alabama Regional Medical Center, Inc., 334 So.2d 885 (Ala. 1976). A motion for summary judgment may be granted only when it is shown that there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law. Slovensky v. Birmingham News Co., Inc., 358 So.2d 474 (Ala.Civ.App. 1978); Fox v. Title Guaranty and Abstract Co. of Mobile, Inc., 337 So.2d 1300 (Ala. 1976); Loveless v. Graddick, 295 Ala. 142, 325 So.2d 137 (1975). The parties submitted the cause on a stipulation of facts; therefore, the question before us is whether the trial court erred in holding that under those facts the defendant was entitled to a judgment as a matter of law. The majority, applying an incorrect legal standard, concludes that summary judgment was appropriate. I disagree.

JONES, SHORES and BEATTY, JJ., concur.


source: Caselaw Access Project

license: Public Domain

text:
    INTERNATIONAL TOOL & ENGINEERING CO., INC., a corporation; Jerry C. Bennett, individually; Buford S. Frederick, individually; and Jackie W. Bennett, individually v. Joe A. SULLIVAN.
    Civ. 2291.
    Court of Civil Appeals of Alabama.
    Oct. 1, 1980.

      Clement J. Cartron of Cartron & Pearson, Huntsville, for appellants.
    Hilary Coleman Burton, Huntsville, for appellee.
   EDWARD N. SCRUGGS, Retired Circuit Judge.

This case involves a lease and the abandonment of the leased property.

The defendants (lessees) contend that the lessor should not have recovered a judgment against them because he admittedly failed to abide by the following provision contained in the signed written lease of the parties:

That in the event either party hereto defaults in carrying out any of its covenants and agreements herein contained for a period of thirty (30) days after written demand for compliance has been made, such default shall, at the options of the party not in default, terminate this lease.

Ordinarily such a requirement is construed by the courts to be a condition precedent, and compliance therewith must be averred and proved by the party seeking to forfeit a lease. A landlord is not entitled to a reentry of the premises and a forfeiture of the lease because of his tenant’s breach of the lease if the landlord fails to plead and prove a compliance with such a default and notice lease provision as a condition precedent. Noel Smith Development Company v. National Filtronics, 360 So.2d 338 (Ala.1978).

In the judgment rendered in favor of the plaintiff, among other findings of fact, the trial court ascertained that the defendants had abandoned the building. The evidence in that regard was in conflict, but there was evidence supportive of the trial judge’s conclusion. Since the circuit judge personally heard the evidence, the judgment is presumed to be factually correct and we cannot disturb it unless it was clearly and palpably wrong. Ryals v. Laney, 338 So.2d 413 (Ala.Civ.App.1976).

When, before the end of the term of a lease, the tenant abandons the leased premises, the landlord, at his election, may either allow the property to remain vacant and sue on the lease rental agreement for his rent, or he may reenter the premises thereby terminating the lease with the right to sue for any breach of lease damages accrued to the termination date. Rice v. Dudley, 65 Ala. 68 (1880); Ryals v. Laney, supra; McClure v. Daniel, 45 Ala.App. 558, 233 So.2d 500 (1970). The second alternative, the relinquishment of possession by the tenant and the resumption of possession by the landlord, operates, generally, as a surrender by operation of law; and, thereafter, both parties are released from liability on all lease requirements which are dependent upon the continuance of the lease term and which have not become actionable by maturing before the acceptance by the landlord of the abandonment.

Generally, the abandonment of released property by a tenant and the reentry thereon by the landlord ends the lease. Rice v. Dudley, supra; Schuisler & Donnell v. Ames, 16 Ala. 73 (1849); McClure v. Daniel, supra. In this case, the trial judge expressly found that the lessees had abandoned the leased building, and there was no question but that the landlord entered the premises and resumed the beneficial use of the property. This terminated the lease, including the provision above copied. Since the lease was ended, the law did not thereafter require the landlord to comply with that lease provision. The lease was forfeited by operation of law, and it was no longer a prerequisite that he plead and prove that he had given the prescribed notice in order to end the lease. The landlord reentered the property by reason of the abandonment and not under the lease’s forfeiture provisions. Had there been no abandonment, it would have been necessary for the landlord to have complied with the lease provisions before the lease could have been validly forfeited. However, in this case, a surrender of the premises occurred by operation of law and the lease was thereby forfeited.

Abandonment of the property by the lessees and acceptance of the abandonment by the lessor were questions of fact to be determined by the trier of facts. San-Ann Service, Inc. v. Bedingfield, 293 Ala. 469, 305 So.2d 374 (1974); McClure v. Daniel, supra; Ryals v. Laney, supra; Cobb v. Lee, 44 Ala.App. 277, 207 So.2d 143 (1968). Here the trial judge conducted a non-jury trial and decided adversely to the lessees. Some of the contested evidence supported the trial court’s finding of facts. After giving due regard to the presumption of correctness, we cannot say that his decision was clearly and palpably wrong.

The judgment entered for the plaintiff and against the defendants was in the amount of $3,400. The evidence is highly suggestive that such amount was ascertained by adding $2,730 which was paid by the landlord to a building contractor to make repairs to the building, and $680, which was paid by him for painting a portion of the structure. The lease provided that the tenants would repair all damages caused by them other than the normal results of their use. Even though the surrender by operation of law occurred before the end of the term of the lease, it was the duty of the lessees, upon abandonment thereof, to leave the building in the same state of repair as it should have been had the lease expired by the lapse of time. Jebeles & Colias Confectionery Co. v. O’Byrne, 7 Ala. App. 213, 60 So. 984 (1913). The tenants left the building in a bad state of repair; hence, the landlord could recover for such damages. The judgment was properly responsive to the correct measure of damages.

We affirm.

The foregoing opinion was prepared by Retired Circuit Judge EDWARD N. SCRUGGS, while serving on active duty status as a judge of this court under the provisions of § 12-18-10(e) of the Code of Alabama (1975). His opinion is hereby adopted as that of the court.

AFFIRMED.

All the Judges concur.


author: BRADLEY, Judge.

text:
    Frances Louise Balch WILLIAMS v. Samuel Hobert WILLIAMS.
    Civ. 2297.
    Court of Civil Appeals of Alabama.
    Oct. 1, 1980.
    Frank V. Potts of Potts, Young & Blasin-game, Florence, for appellant.
    Donald H. Patterson of Patterson & Weathers, Florence, for appellee.
   BRADLEY, Judge.

This is a divorce case.

Samuel Hobert Williams and Frances Louise Williams were married in Lauder-dale County, Alabama in September 1947 and have resided on a farm near Lexington, Alabama since 1961. The couple took title to the twenty acres on which they established their home as joint tenants in November 1960. Mrs. Williams furnished virtually all of the money used to purchase the property. A three bedroom house and a barn were subsequently erected thereon. In addition, Mr. Williams purchased a new Mercury Marquis for his wife and maintained a modest checking account at a Florence, Alabama bank. Aside from other numerous items of personalty acquired by the parties during their marriage, Mr. and Mrs. Williams possessed no other substantial assets. Mrs. Williams was employed at various times as a bookkeeper, bank teller, or secretary, performing general office work from 1947 until 1959. From 1959 to the date of the present appeal, appellant has devoted her energies to housekeeping. Mr. Williams has been employed for the last sixteen years as the business manager and financial secretary of the International Union of Operating Engineers, Local 320. Although Mr. Williams’ gross earnings in 1979 amounted to $31,979, his net earnings did not exceed approximately $23,000. Neither husband nor wife is in perfect health; the wife suffers from high blood pressure and arthritis in her neck and the husband from an operation for a ruptured disc, diverticulitis and prostate trouble.

The husband filed suit for divorce on the ground of incompatibility of temperament. The wife answered and counterclaimed for a divorce on the grounds of incompatibility, cruelty and adultery. After a hearing, the trial court divorced the parties for incompatibility of temperament, made a property settlement by dividing the various items of personalty between them, ordered the sale of the twenty acres of land owned by the parties, fifty-five percent of the proceeds going to the wife and the remaining forty-five percent to the husband, and awarded the wife $400 per month as periodic alimony. On motion for new trial the court modified the periodic alimony award by increasing it to $500 per month. The wife appeals from the judgment on the merits and the order denying the motion for new trial. The dispositive issue on this appeal is the wife’s contention that the periodic alimony award is inadequate.

The award of alimony and the division of property by a trial court are matters within its discretion with each case being decided on its own facts. Segars v. Segars, Ala.Civ.App., 334 So.2d 684 (1976). In exercising the discretion reposed in it, the trial court should consider such factors as the earning ability of the parties, future prospects, age, health, duration of the marriage, standard of living, value and type of property, and the conduct of the parties. Hendrix v. Hendrix, 56 Ala.App. 178, 320 So.2d 684, cert. denied, 294 Ala. 758, 320 So.2d 687 (1975).

In divorce cases the division of property and award of alimony made by a trial court after an oral hearing are presumed correct and will not be revised except for a gross abuse of discretion. Kabaci v. Kabaci, Ala.Civ.App., 373 So.2d 1144 (1979).

The evidence shows that the parties were married for thirty-two years, some of which were stormy ones. The wife worked for the first nine years of the marriage as a bookkeeper, bank teller or general secretary. She has high blood pressure and a touch of arthritis in her neck. The husband is troubled by a ruptured disc, diverticulitis and prostate trouble. The husband’s employment depends on election every three years. His gross earnings are in the low $30,000 range. It could be said, based on the evidence, that both parties contributed to the breakup of the marriage. The personal property was divided equitably between the parties and their only major asset, the jointly owned twenty acres with house and barn, valued between $65,000 and $95,000, was to be sold with fifty-five percent of the proceeds to be given to the wife and forty-five percent to be given to the husband. The wife was awarded $500 a month as periodic alimony.

Based on the evidence before the trial court, we cannot say that it abused its discretion by awarding the wife $500 per month as periodic alimony.

The judgment of the trial court is affirmed.

AFFIRMED.

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


text:
    Curtis DENNIS v. GAMBLE’S, INC.
    Civ. 2321.
    Court of Civil Appeals of Alabama.
    Oct. 1, 1980.

      Jerry Cruse, Montgomery, for appellant.
    James W. Garrett, Jr. of Rushton, Stakely, Johnston & Garrett, Montgomery, for appellee.
   EDWARD N. SCRUGGS, Retired Circuit Judge.

This is a workmen’s compensation case. The trial judge rendered the following judgment, which is attacked by the plaintiff employee as being inadequate in that there is no statement of law, facts and conclusions as is required by the Code of Alabama 1975, § 25-5-88:

This case is submitted on the pleadings, testimony of the Plaintiff taken ore ten-us, the exhibits admitted as evidence, and the depositions admitted as evidence.
Upon consideration thereof, the Court is of the opinion and finds, and it is ORDERED that judgment be for the Defendant.
It is further ORDERED that the costs of this action be taxed against Plaintiff for which let execution issue.

The following excerpt from Henderson v. Johnson, 49 Ala.App. 191, 269 So.2d 905 (1972) is dispositive of the present case:

As to issue number one petitioner argues in brief that there was a complete omission in the trial court’s order of a statement of the law, facts and conclusions upon which the court’s judgment is based as required by Section 304, supra [Title 26, § 304, Code of Alabama 1940]. The pertinent portion of Section 304 is as follows:
“. . . This determination shall be filed in writing with the clerk of said court, and judgment shall be entered thereon in the same manner as in causes tried in the said circuit court, and shall contain a statement of the law and facts and conclusions as determined by said judge
The decisions of the Supreme Court and this court are as one to the effect that a complete failure to abide by the above cited requirements of Section 304 requires a reversal of the case. Richardson Lumber Co. v. Pounders, 254 Ala. 285, 48 So.2d 228; Bass v. Cowikee Mills, 257 Ala. 280, 58 So.2d 589; Kearley v. Peterman Lumber Co., 46 Ala.App. 204, 239 So.2d 776; Dale Motels, Inc. v. Crittenden, 49 Ala.App. 51, 268 So.2d 834.
The following judgment in Bass v. Cowikee Mills, supra, is an example of a complete omission of a “.. . statement of the law and facts and conclusions as determined by said judge”:
“ ‘After hearing the evidence, the Court being of the opinion, it is considered and ordered by the Court that the plaintiff is not entitled to compensation under the facts in this case, and, therefore, judgment is hereby rendered by the Court in favor of the defendant and against the plaintiff.’ ”
Likewise in Kearley v. Peterman Lumber Co., supra, the judgment, which is as follows, was, according to this court, totally devoid of a finding of fact and conclusion of law:
“ ‘DECREE
“ ‘This day came the parties and by their attorneys and issue being joined between the parties and after hearing the evidence, the Court being of the opinion and it is the judgment of the Court that the petitioner is not entitled to compensation against the defendant, Peterman Lumber Company.
“ ‘It is therefore, Considered, Ordered and Adjudged by the Court that the petitioner is not entitled to recover Workmen’s Compensation against the defendant, Peterman Lumber Company and the said Peterman Lumber Company be and it is hereby discharged.
“ ‘It is further Ordered and Decreed that the petitioner pay the cost in this cause for which let execution issue.’ ”

We cannot distinguish this judgment from other judgments which were adjudged to be in noncompliance with the statutory requirements as to workmen’s compensation judgments. Therefore this case must be reversed and remanded to the circuit court.

The foregoing opinion was prepared by retired circuit judge EDWARD N. SCRUGGS, while serving on active duty status as a judge of this court under the provisions of § 12-18-10(e) of the Code of Alabama 1975. His opinion is hereby adopted as that of the court.

REVERSED AND REMANDED.

All the Judges concur.


author: DeCARLO, Judge.

text:
    Charles Edward ROBINSON v. STATE.
    6 Div. 135.
    Court of Criminal Appeals of Alabama.
    June 17, 1980.
    Rehearing Denied July 29, 1980.

      J. Mark White of Smith, White & Hynds, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen., and Jean Williams Brown, Asst. Atty. Gen., for ap-pellee.
   DeCARLO, Judge.

Robbery; twenty-five years.

On August 15, 1978, Michael Prince was in charge of the Crestwood Pharmacy in Jefferson County, Alabama. He testified that, at approximately 4:40 P. M., an individual wearing jeans, a hat and a stocking over his face entered the store carrying a machine gun. According to Prince, the intruder shouted, “Hit the f- floor. I’ve got a f- machine gun.” Prince said the man was directing these remarks to different people as he passed them going to the drug counter. Prince testified that, when he was approached by the intruder, he asked Prince to give him the “dope,” then handed Prince a plastic bag. The witness stated that the machine gun was pointed at his face part of the time and at his body part of the time. Prince said the appellant was approximately a “foot, foot and a half away.” Prince stated, “I was looking in his face.”

Prince made a positive identification of the appellant in court, and the witness stated that he had viewed the appellant for approximately three or four minutes. Further, the witness said that, prior to leaving the store, the appellant approached the candy and tobacco counter and asked the saleslady for all the money. Prince said the lady handed over the money to the appellant. Later, it was determined that approximately one hundred dollars in cash was taken. Also, Prince gave a list and the value of approximately one dozen drugs which were taken.

During cross-examination, Prince testified that he was a “relief pharmacist” at the Crestwood Pharmacy and that Grace Habshey, Jesslyn Whaley and Greg Kearley were also working on the day of the robbery.

According to the witness, the appellant was with Prince the majority of the three to four minutes he was in the store. Prince stated that the appellant “wore over his head a light-colored stocking, woman’s hose which came down to about his chin.”

Prince recalled that, after the police arrived, he gave the robber’s description as five feet, nine inches tall, 155 pounds, brown hair, and unknown color of eyes. Further, Prince said that the man had “the beginning of a five o’clock shadow like he hadn’t shaved in a day or so.” Prince stated that he indicated to the police, “[I]t looked like the starting of a mustache.”

Prince acknowledged that he, along with the others, was upset by the robbery and that the ladies were crying. Prince testified that a day or two after the robbery he was shown about six or seven photographs by Detective Miller. The witness did not identify the appellant from those photographs. Prince said that he did not recall seeing any photograph of the appellant at that time, and, during the three or four times the witness was shown photographs, he, to the best of his knowledge, did not see a photograph of the appellant. Prince did indicate to Sgt'. Miller that some of the photographs of the individuals bore characteristics similar to those of the appellant. The photographs were also shown to Wha-ley, and Kearley, but Prince did not recall that they indicated in any way that the photographs resembled the person who had committed the robbery.

According to Prince, Miller returned approximately three times in order to get everyone to view the photographs. About five weeks after the robbery, Prince went to a lineup. Prince said the people he viewed in the lineup were not any of those he had seen in the photographs and that, when asked if he could identify anyone in the lineup, he made an identification. However, before he made the identification, Prince had asked the individuals to repeat the statements which the robber had said at the time of the robbery. Prince testified that, although Officer Miller entered the room where the lineup was conducted, he did not make any remarks to indicate that the person who robbed the pharmacy was in the lineup. Prince recalled that the appellant was standing in position one at the lineup. Prince’s in-court identification of the appellant was based on the lineup and the witness’s recollection of the appellant in the pharmacy. Particularly, what caused Prince to identify the appellant were “the facial features” and the fact that he acted in the same manner in the lineup as he did during the robbery. According to Prince, the appellant was “real jittery, real nervous.”

Prince denied that his identification of the appellant was based on the voice. Prince admitted that he wore contact' lenses, that he was nearsighted, and that he had astigmatism.

During further questioning, Prince recalled that he had attended a preliminary hearing and that, at the time of the preliminary hearing, he identified the appellant.

At the conclusion of Prince’s testimony, the defense moved to exclude the State’s evidence on the ground that the State had failed to prove a prima facie case. Further, the defense argued that the State had “failed to lay the predicate in direct testimony as to the lineup sufficient to give the witness’s identification sufficient credibility to be allowed.”

This motion was overruled, and the appellant called Walter Enoch, a court reporter in Jefferson County, who testified that, on October 27, 1978, he reported a hearing involving the appellant in Judge Nice’s court. Enoch identified two photographs which were introduced into evidence during that hearing and which were in his possession from the time of the hearing until his appearance in court. According to Enoch, the photographs were introduced when Officer Miller was giving his testimony.

Gregory Kearley was working at the Crestwood Pharmacy on August 15,1978, as a pharmacy extern. Kearley recalled that a man entered the pharmacy “waving a gun, telling everyone to get on the floor and said that it was a holdup.” Next, the man proceeded to the rear of the pharmacy where Prince was located and demanded Dilaudid, Demerol and Codeine. According to Kear-ley, he saw the man when he entered the store, when he proceeded to the rear where the pharmacy was located, and when he was leaving the store. Kearley described the man’s clothing as bluejeans and either a fatigue jacket or a jean jacket. Further, Kearley said that, the man was wearing “some kind of hosiery” over his face, but wore no hat. According to Kearley, the man did not have a mustache, was five feet eight inches to five feet nine inches tall, weighed approximately 150 pounds, had dark brown hair and was alone.

Kearley recalled that he was shown some photographs by Detective Miller, who came to the pharmacy within two or three weeks after the robbery. According to Kearley, he was shown photographs on three or four occasions, and he identified some of the individuals as looking “similar” to the person who robbed the pharmacy. During the trial, Kearley was shown defendant’s Exhibits A and B which he identified as the pictures which “were similar to those of the robber.”

Approximately three weeks after viewing the photographs, Kearley attended a lineup, but did not identify anyone at that time. Kearley recalled that the appellant was in position number one.

During cross-examination, Kearley stated that “there was no one in that lineup that looked familiar to me, as far as facial appearance.” However, he did say that the body build and size of the person in position number one were familiar. He recalled that, during the robbery, he observed the robber for about five seconds while he was lying on the floor. Kearley acknowledged that Prince spent more time with the robber than anyone else in the store. The witness said that the robber and Prince were within one foot of each other and were face to face during their conversation.

Kearley testified that he was not saying that the appellant was not the person who robbed the store. However, the witness added that he was not saying that either one of the men pictured in the photographs was not the robber.

Jesslyn Whaley, a pharmacist assistant at the Crestwood Pharmacy at the time of the robbery, recalled, “[Sjomebody came in yelling that there was a robbery for everybody to hit the floor. He was yelling obscenities. And he told them to do it because he had a powerful machine gun.” She said the man wore a “black mask or hose” pulled down below his chin. Whaley testified that she was behind the prescription counter at the time the man came in and that she could not say whether the man wore a hat.

Whaley acknowledged that Detective Miller had shown her some photographs of persons who had similar characteristics to the man she had seen in the pharmacy during the robbery. She stated that she did not attend the lineup and that she had never seen the appellant before.

On cross-examination, the witness said that she was within three or four feet of the person who robbed the pharmacy and viewed him for only a minute. Whaley remembered that he was not very tall and “wasn’t heavy built.” She testified that she was not saying that either of the men in the photograph was the person who robbed the pharmacy, but she was merely saying that they had characteristics similar to the robber.

During the trial, the State and the defense entered into a stipulation that Grace Habshey’s testimony given in a prior hearing would be read and considered as testimony which Habshey would give if she were present.

Habshey’s testimony was that she was working at the front of the Crestwood Pharmacy as a cashier at the time of the robbery. According to Habshey, a man entered the store and said, “Everybody hit the floor. This is a holdup.” She said that she immediately hit the floor and did not look at the man. When he returned from the rear of the pharmacy, he approached her register and demanded that she give him all the money. After handing over the money, she resumed her position on the floor. Habshey stated that she was unable to identify any of the photographs shown to her, but she could not say, definitely, that the appellant was not the robber.

Detective Howard L. Miller of the Birmingham Police Department testified that in August, 1978, he investigated the robbery which occurred at the Crestwood Pharmacy. He stated that, after the robbery, he took, on three occasions, photographs to the pharmacy for the employees to view. Miller said that the first occasion was a day or two after the robbery and that he had shown the photographs to Prince, Whaley and Kearley. The witness testified that the official report described the robber as a “white male, 24 years old, 5' 9", 155 pounds, brown hair and a mustache. Unknown complexion. Unknown eyes.”

Miller said when he took the photographs to the pharmacy on the second occasion, Kearley and Whaley identified two photographs as being “similar in characteristic.” Miller identified defendant’s Exhibits A and B as the photographs of Robert Gill and Forrest Allen Spears. Miller acknowledged that, on the first occasion when the photographs were shown to the people at the pharmacy, the photographs did not contain the appellant’s photograph. However, Miller testified that on one occasion, he did show, to the people at the pharmacy, the photographs of the appellant which the witness had received from the county. He explained that the photograph was different in size and stated that he had shown it to Prince and, possibly, to Kearney.

Miller acknowledged that, within an hour after the robbery, the car used in the robbery was recovered. The automobile was found abandoned on railroad tracks near the pharmacy. Some drugs and nylon stockings were found in the car. Miller said that the car was fingerprinted and the prints were identified as those of George Stevens Shrader.

During cross-examination, Miller described Shrader as thirty-five years of age, shoulder length blond hair, approximately five feet six, or five feet seven inches in height, and light complexion.

Further, Miller stated that the appellant was arrested on August 23,1978, along with Shrader. During further questioning, Miller testified that the photographs of the appellant, which he had shown to the people at the pharmacy, revealed that the appellant had a mustache. Further, Miller said that, at the time the appellant was arrested, he had a “light mustache.”

During further questioning, Miller stated that, in a professional capacity, he was familiar with the name, Spears. Further, Miller testified that the fingerprints taken from the car were not identified as those belonging to Charles Robinson, the appellant. The witness did say that prints belonging to Forrest Spears were also found.

At the end of Miller’s testimony, the appellant did not take the stand or present any further evidence. The case was subsequently submitted to the jury.

I

The appellant contends that the trial court was in error when it denied his motion for a new trial based on newly discovered evidence.

A hearing was held on the motion for a new trial, and the appellant presented the testimony of Forrest Allen Spears. Spears stated that he knew the appellant, Charles Robinson. Also, Spears testified that he, alone, committed the robbery at the Crest-wood Pharmacy. The witness admitted owning the car which was recovered after the robbery.

According to Spears, the appellant was not in the car at the time of the robbery and did not participate in planning the robbery. Although Spears did admit that other persons were in the car at the time of the robbery, he would not reveal the names of his companions.

During questioning by the court, Spears stated that he entered the pharmacy and told everyone to get on the floor. After-wards, he went to the pharmacy counter where he directed the pharmacist to put the narcotics in a plastic bag.

During cross-examination, Spears guessed that five people were in the store during the incident and that one of the five was a female. The witness could not give the pharmacist’s height, hair color or size. Spears did say that he was five feet eight inches or five feet nine inches tall and weighed 130 pounds and that the pharmacist was “bigger.” Spears acknowledged that, after the robbery, while driving the car from the scene, he hit a car parked near the pharmacy. However, he could not say whether the vehicle was a van.

During further questioning, Spears admitted that he had known Charles Robinson for about five years and that they were in the same cell block in the county jail for approximately one week after the robbery. Further, Spears admitted that he had been convicted for two burglaries, one grand larceny and two robberies. According to Spears, he was, at the time of the trial, serving thirty years in Holman prison. During further examination, Spears stated that he had decided to testify “because I couldn’t look myself in the face every day if I knew somebody else was in prison doing twenty-five years for something I had done.”

Although a new trial may be granted on grounds of newly discovered evidence which tends to prove that the crime for which the accused has been convicted was actually committed by another, the awarding of a new trial “rests in the sound discretion of the trial court, and depends largely on the credibility of the new evidence.” Prince v. State, Ala.Cr.App., 356 So.2d 750, and the cases cited therein.

Further, the decision of the trial court will not be disturbed unless an abuse of discretion can be shown. McBryar v. State, Ala.Cr.App., 368 So.2d 568; Page v. State, 57 Ala.App. 265, 327 So.2d 760.

As can be seen from the foregoing testimony, Forrest Allen Spears’ testimony revealed that he was uncertain as to the details of the robbery and that he was reluctant to say who his companions were. Also, the inference could be drawn that, because of his association with the appellant, Spears had reason to give false testimony.

Based on the foregoing, we do not believe that the trial court abused its discretion in denying a motion for a new trial based on the newly discovered evidence that Spears, in fact, committed the robbery. The credibility of this evidence was for the trial judge to determine. The truthfulness or falsity of the evidence presented is not for this court to decide. Therefore, it is our judgment that the trial court was not in error in overruling appellant’s motion for a new trial.

II

The appellant insists that the prosecutor, during the final argument, made remarks which were prejudicial to the appellant and argues that the trial court erred when it refused to grant his motion for a new trial based on these prejudicial remarks.

From the record:
“MR. GOMANY: Ladies and gentlemen,-to respond to Mr. White’s argument.-all the information we know. Yeah, we sure do. We know all-That’s why-the prosecutor’s-, -to prosecute the ones that are guilty and dismiss the cases against the ones that, are innocent. “MR. WHITE: I’m going to object to that, Your Honor, he has not decided-the Deputy District Attorney any guilt or innocence. That is not a proper statement-.
“THE COURT: I sustain it.
“MR. GOMANY: We can dismiss a case by walking up to the Court and say, ‘Judge, we know’-.
“MR. WHITE: I object to any further argument in this regard.
“THE COURT: Well, I view it as an argument that has been held to be reversible. I’ll have to sustain it.”

In Lawson v. State, Ala.Cr.App., 377 So.2d 1115, the court stated:

“The general rule is that improper argument of counsel is not a ground for a new trial or subject to review on appeal unless there is due objection by counsel or a motion to exclude, an adverse ruling thereon by the court, or a refusal of the trial court to make a ruling.”

Also, in Stephens v. State, 250 Ala. 123, 33 So.2d 245, the court held that an objection must invoke corrective action on the part of the court “when the objection to the argument is sustained and when the sinister effect of the argument can be eradicated by action of the trial court” and, if he does not seek curative action, then no reversible error is found.

In determining whether argument by counsel was so prejudicial that it was ineradicable, each case must be determined on its individual facts. Smith v. State, 282 Ala. 268, 210 So.2d 826.

In the present case, the remarks by counsel for the State were not of such magnitude as to be ineradicable. Bailum v. State, 17 Ala.App. 679, 88 So. 200; Blue v. State, 246 Ala. 73, 19 So.2d 11; Veith v. State, 48 Ala.App. 688, 267 So.2d 480.

Under the circumstances presented in the case at bar, and, in view of the fact that the appellant did not request curative action by the court after his objection was sustained, no question is presented for review by this court. Moore v. State, Ala.Cr.App., 364 So.2d 411; Holt v. State, 49 Ala.App. 582, 274 So.2d 356; Veith v. State, supra; Hall v. State, 24 Ala.App. 75,130 So. 531.

Ill

In the motion for a new trial, appellant maintains that the jury’s verdict was contrary to the law in evidence and that the trial court erred by denying the motion. The question presented by the motion for a new trial was whether there was sufficient evidence to submit the issue being tried by the jury. Where evidence presented to the jury raises the question of fact for their determination, such evidence, if believed, would be sufficient to support the verdict. Cox v. State, Ala.Cr.App., 363 So.2d 1054; Young v. State, 283 Ala. 676, 220 So.2d 843. Under these circumstances, the overruling of the motion for a new trial would not be error. Also, the fact that only one witness positively identified the appellant establishes the fact of his guilt as firmly as it would have been established by the testimony of “an entire community.” Haggler v. State, 49 Ala.App. 259, 270 So.2d 690; Gray v. State,. 38 Ala.App. 508, 88 So.2d 798.

In the present case, Prince gave a detailed description of the robber and, prior to the lineup, identified the appellant from a photograph. Prince also identified the appellant at the lineup and made a positive identification of the appellant in court.

The appellant’s witnesses gave testimony which may be in conflict with the testimony of the State’s witness, Prince. A close reading of the record indicates that two other witnesses who were in the pharmacy at the time of the robbery selected photographs of Spears because he had characteristics similar to those of the robber. No one testified that Spears was the robber, nor did anyone testify that the appellant was not the robber. Also, Prince was the only person who was in close proximity (approximately eighteen inches) to the robber for several minutes and had the opportunity to view him.

The appellant, in the present case, did not persuade the jury that he was not the robber. In our judgment, there was legal evidence from which the jury could infer that the appellant was guilty. Therefore, the evidence was sufficient to pose a question of fact for the jury, and it was properly submitted for their determination.

We have examined the record and find no error prejudicial to this appellant; therefore, the judgment of conviction by the Jefferson Circuit Court is affirmed.

AFFIRMED.

All the Judges concur.


text:
    Ex parte Charles Edward ROBINSON. (Re: Charles Edward Robinson v. State of Alabama).
    79-867.
    Supreme Court of Alabama.
    Oct. 31, 1980.
   Certiorari to the Court of Criminal Appeals, 389 So.2d 144 (6 Div. 135).

SHORES, Justice.

WRIT DENIED-NO OPINION.

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


text:
    Alonzo WILLIAMS v. STATE.
    3 Div. 114.
    Court of Criminal Appeals of Alabama.
    June 30, 1980.
    Rehearing Denied July 29, 1980.
    L. H. Walden, Montgomery, for appellant.
    Charles A. Graddick, Atty. Gen., and J. Anthony McLain, Asst. Atty. Gen., for ap-pellee.
   JOSEPH J. MULLINS, Retired Circuit Judge.

The grand jury of Montgomery County returned an indictment for robbery against the appellant, Alonzo Williams, and upon arraignment he entered a plea of not guilty, was found guilty as charged and duly sentenced to ten years imprisonment, and appellant gave notice of appeal to this court.

The appellant was represented by counsel of his choice at all proceedings in the trial court and is represented in this court by the same counsel under appointment by the trial court. This appeal was submitted to this court on briefs.

The appellant, in his brief, contends that the trial court erred to his prejudice on three grounds: First, by allowing into evidence a statement made by Charley Anderson to Charley Flowers which was hearsay and was not admissible under any exception to the hearsay rule; second, by allowing a pistol, found on defendant, into evidence; third, by allowing hearsay evidence in as to identification of the accused.

For the first error complained of by appellant we quote from the record the direct examination of State’s witness, Charley Flowers:

“Q. Tell us what you saw?
“A. Okay. I went in the house because I was going out front to get a drink, and I saw one boy down on Charley, had him down rolling him. And, so I saw somebody else run out the house and Charley said, Buster Crabbe done robbed me.
“MR. WALDEN: Objection.
“THE COURT: Don’t say what somebody else told you, Mr. Flowers.
“MR. POOL: Your Honor, at this time, I would submit that the statement made by Mr. Anderson in this excited utterance would be admissible as part of the res gestae.
“THE COURT: All right. Go ahead. “Q. (Mr. Pool continues) What did he say to you as the man ran out the door?
“MR. WALDEN: Judge, we would like to have an exception.
“THE COURT: All right.
“A. Said, Buster Crabbe and them done robbed me. So I ran to the door and I looked and I didn’t see nobody but Buster.
“Q. And you know him when you see him?
“A. Yes, sir.
“Q. And you saw him run away?
“A. Yes, sir. Went down the street.
“Q. Down Robinson Street?
“A. Yes, sir.”

Charley Anderson, the injured party, had testified in substance, that the appellant was known to him as Buster Crabbe; that he knew Buster Crabbe’s voice; that appellant and a companion robbed him of $580.00; that he had known the appellant well for about five years; that appellant had on a ski mask and had two pistols, one in each hand, and appellant’s companion had one pistol; that appellant and his companion, with one pistol in his hand, made Anderson lie down on the floor; while Anderson was on the floor appellant’s companion took Anderson’s pocketbook, and the appellant told his companion to look in the left pocket, that was where Anderson carried his one-dollar bills; then appellant told his companion to get the change from Anderson’s front pocket, at which time Charley Flowers and Willie Williams came up the back steps, and the appellant and his companion broke and ran out the door, and one went one way and the other went the other way; that Charley Anderson got up from the floor, and they went to the front door and saw appellant running until he turned the corner and went down the hill.

Willie Williams, a witness called by the State, testified in substance, the following: That he knew Charley Anderson; that on October 30, 1978 he and Charley Flowers were downstairs at Charley Anderson’s house working on a car; that about 10:00 o’clock he went upstairs at Anderson’s house and when he opened the back door and looked around, he saw Charley Anderson lying on the floor with his hands out in front of him, and a “kind of a tall dude was down over him” going through his pockets; that when the “dude” saw Willie Williams and Charley Flowers come in at the door, the “dude” ran; that they rushed to the front door on the sidewalk, and Willie Williams saw Buster Crabbe running down the street away from Charley Anderson’s house.

We hold that, under the facts shown by this record, the trial judge could reasonably conclude that the statement made by Mr. Anderson to Charley Flowers was, in fact, a part of res gestae. For a statement made by parties at the scene of a crime to be admissible as a part of the res gestae exception to the hearsay rule, it must be incident to what was done, and shed light on the main fact, and be instinctive and spontaneous, and not deliberative or retrospective. Harrison v. Baker, 260 Ala. 488, 71 So.2d 284; Williams v. State, 291 Ala. 213, 279 So.2d 478; Davis v. State, 51 Ala.App. 200, 283 So.2d 650; Bass v. State, Ala.Cr.App., 375 So.2d 540.

Next, the appellant complains that the trial court committed reversible error by allowing State’s Exhibit No. 2, a pistol found on the appellant, into evidence.

We quote from the record:
“MR. POOL: No redirect. Judge, I will ask that State’s Exhibits 1, 2, and 3 be admitted in evidence, at this time.
“MR. WALDEN: Now, Your Honor, we are going to object to any bullets being admitted.
“THE COURT: All right. The bullets are out but I will let 1 and 2 in.
“MR. POOL: Judge, at this time the State rests.”

State’s Exhibit 1, was a photograph of a lineup. Exhibit 2, was a .38 caliber revolver, and Exhibit 3, was five, live rounds of .38 ammunition. There being no objection to State’s Exhibit 2 being introduced into evidence, there is nothing for this court to review. Pugh v. State, 247 Ala. 535, 25 So.2d 417. McLoyd v. State, Ala.Cr.App., 373 So.2d 1175; cert. den. Ala., 373 So.2d 1185.

The appellant further complains that the trial court erred to his prejudice by allowing hearsay evidence in as to identification of the accused. The court, out of the presence of the jury, ruled that he would allow the following quoted evidence to be given by Detective Mobley, and the appellant would have an exception to his ruling. We quote from the record on the redirect examination of Detective Mobley in rebuttal.

“REDIRECT EXAMINATION (RESUMED):
“BY MR. POOL:
“Q. Detective Mobley, one question and one question only. Twenty five minutes after the alleged robbery took place, did you have conversation with the victim, Charley Anderson?
“A. Yes, sir, I did.
“Q. Did he tell you the name of the man that had robbed him?
“A. Yes, sir, he did.
“Q. Who did he say?
“A. He said Buster Crabbe.
“MR. POOL: That is all.”

It is noted by the court that the witness, Charley Anderson, was present and available for cross-examination by the appellant, was cross-examined by the appellant, both in the presence and absence of the jury, and further cross-examined again, was further examined on direct examination, and cross-examined again by the appellant, was again examined on redirect examination, and again cross-examined by the appellant, was again re-examined, and re-cross-examined again by the appellant, was recalled in rebuttal, and again cross-examined, and was available to the appellant for further cross-examination.

It further appears that, in the oral charge to the jury, the court stated:

“You have heard testimony in this case of identification of the defendant which was made outside the presence of the defendant, and I will say to you this, that the statement, and that is the identification made out of his presence, may not be considered as evidence of the truth of the matter, but it is only for the limited purpose of showing that there was an identification.”

It appears to us that the hearsay rule does not include statements of a witness who is present at the trial, and is subject to extensive cross-examination by the party against whom the statements are offered, when offered only for identification purposes.

We hold that the court did not err in allowing Detective Mobley to testify as to the statement made by Charley Anderson. Gray v. State, Ala.Cr.App., 364 So.2d 694; McElroy on Evidence, 3rd Ed., § 273.01; McElroy on Evidence, 3rd Ed., § 242.01(1); Cory v. State, Ala.Cr.App., 372 So.2d 394.

We have searched the record and are of the opinion that reversible error does not appear. The judgment of the trial court is due to be and is hereby affirmed.

The foregoing opinion was prepared by Honorable JOSEPH J. MULLINS, a retired Circuit Judge, serving as Judge of this Court; his opinion is hereby adopted as that of the Court.

The judgment below is hereby affirmed.

AFFIRMED.

All the Judges concur.


text:
    Ex parte Alonzo WILLIAMS. (Re: Alonzo Williams v. State of Alabama).
    79-835.
    Supreme Court of Alabama.
    Oct. 31, 1980.
   Certiorari to the Court of Criminal Appeals, 389 So.2d 151 (3 Div. 114).

JONES, Justice.

WRIT DENIED-NO OPINION.

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


author: LEIGH M. CLARK, Retired Circuit Judge.

text:
    Donny POE v. STATE.
    8 Div. 335.
    Court of Criminal Appeals of Alabama.
    July 29, 1980.
    Rehearing Denied Oct. 7, 1980.

      Robert L. Hodges, Scottsboro, for appellant.
    Charles A. Graddick, Atty. Gen., and J. Thomas Leverette, Asst. Atty. Gen., for ap-pellee.
   LEIGH M. CLARK, Retired Circuit Judge.

The first issue presented by appellant is stated by him in his brief as follows:

“Whether Alabama’s Child Molestation Statute (Section 13-1-113, Code of Alabama 1975) is violative of the due process clause of the Fourteenth Amendment of the Federal Constitution on the ground of vagueness.”

We quote the pertinent part of the cited statutory law:

“It shall be unlawful for any person to take or attempt to take any immoral, improper or indecent liberties with any child of either sex under the age of 16 years with intent of arousing, appealing to or gratifying the lust or passions or sexual desires, either of such person or of such child, or of both such person and such child, or to commit, or attempt to commit any lewd or lascivious act upon or with the body, or any part or member thereof, of such child, with an intent of arousing, appealing to or gratifying the lust or passions or sexual desires, either of such person or of such child, or of both such person and such child; provided, that such section shall not apply to the enumerated acts where the purpose of the person committing such act or acts is to render medical or surgical treatment or when the persons are married legally one to another.”

Appellant acknowledges that this Court has upheld the particular statutory law against an attack that it is so vague that it furnishes basis for noncompliance with due process of láw in Blocker v. State, 40 Ala.App. 658, 120 So.2d 924, but insists that the decision in Blocker must yield to what has been held or said in some cases cited by him from other jurisdictions. He cites none that can be said to be in conflict with what was held in Blocker, supra. He emphasizes the concern that some courts have seemingly had as to the meaning of some of the words found in the statute, such as “lewd” and “lascivious.” Neither word is new, and we would not change the meaning of either from that expressed in 1896 by the Supreme Court:

“. . . the words ‘obscene,’ ‘lewd,’ and ‘lascivious,’ as used in the statute, signify that form of immorality which has relation to sexual impurity, and have the same meaning as is given them at common law in prosecution for obscene libel. ...” Swearingen v. United States, 161 U.S. 448, 16 S.Ct. 562, 40 L.Ed. 765, 766.

The statute there under consideration was a statute of the Congress proscribing the transmission of “obscene, lewd, and lascivious” material through the mails. By even stronger reason it meets constitutional tests in a case like this in which no First Amendment rights are involved.

Code of Alabama 1975, § 13-1-113 gave “due notice that an act has been made criminal before it is done” and “conveys sufficiently definite warning as to the proscribed conduct when measured by common understanding and practices.

In Chambers v. State, Ala.Cr.App., 364 So.2d 416, the subject is treated comprehensively in dealing with the Alabama Child Abuse Act, (Code 1975 § 26-15-3). In applying principles stated therein, we hold again, as was held in Blocker v. State, supra, that the Code section now under consideration is not unconstitutional by reason of any claimed vagueness.

An additional consideration leads to the same result in this particular case. If it be assumed that there could be borderline conduct that raises a serious question whether it comes with the condemnation of a statute, this of itself would not destroy its applicability to conduct that unquestionably is proscribed by the statute. According to the evidence for the State, including the testimony of the alleged victim, the conduct of defendant was in ordering, and by duress causing, her to engage in an act of fellatio with him. Not only did defendant deny such act, but also he denied any conduct that bordered on conduct covered by the statute.

“Vagueness challenges to statutes that do not involve First Amendment freedoms must be examined in light of the facts of the case at hand. ...” Chambers v. State, supra, 364 So.2d, p. 418.

The importance of a correct determination of the issue raised by appellant has prompted the foregoing portion of this opinion. However, it was not necessary to a correct determination of whether the judgment of the trial court should be reversed. Even if appellant were correct in his contention, he would not be entitled to a reversal. A reversal on the ground that a statute under which one was tried and convicted is unconstitutional is not permitted unless the question was raised in the trial court. Barclay v. State, Ala.Cr.App., 368 So.2d 579 (1979).

Defendant did raise the point in the trial court,-but not until he included it in one of the grounds of his motion for a new trial, which motion was overruled. There is good reason for the principle that such questions should be raised before the entry of defendant’s plea, or at least before the status of the responsive pleading has become finally fixed. As a general rule, it would be only at that time that the court could act properly, without injustice to either party. The indictment followed largely the language of Code 1975, § 15-1-113. If the defendant could have convinced the court that he should not be required to plead to the indictment, by reason of the vagueness of either the statute or the indictment, or both, the State could have then taken appropriate action, which would not have been unjust to defendant, such as moving for a nolle prosequi of the case and asking a grand jury for a new indictment that by specifically charging fellatio would have removed any question as to vagueness, or it could have probably proceeded successfully against defendant with a prosecution against him for the commission of a crime against nature (Code 1975, § 13-1-110).

Appellant’s second issue is whether the State proved that the alleged offense was committed within Jackson County. It did. A part of the testimony of the victim was as follows:

“Q. Where did this happen at, do you know?
“A. Jackson County 75.
“THE COURT: At where?
“A. Jackson County 75.”

The final insistence of appellant is that the trial court erred in overruling defendant’s motion for a continuance of the hearing of his motion for a new trial. Defendant was represented on the trial by employed counsel. After he was convicted and sentenced, he made it known that he would take an appeal. The court appointed counsel by reason of defendant’s established indigency. His new and different counsel filed a motion for a new trial. The transcript as to the motion for a continuance is rather lengthy, but it is to be summarized by saying that defendant’s appointed counsel desired to have a transcript of the proceedings, which was then in a state of preparation for an appeal, in order to be better able, as he saw it, to bring to the attention of the court grounds that would entitle him to a new trial. We think that under ordinary circumstances this was a reasonable request, but the trial court took the position that defendant’s counsel did not need the transcript in order to present and argue to the court any possible ground for a new trial. A part of the court’s statement was as follows:

“Well, Mr. Hodges, what I am trying to understand is if you don’t wish to offer any evidence on the motion and if the transcript is available to you after having an opportunity to review it, I still, what I am trying to understand how that would benefit you in connection with the submission of a motion for a new trial.”

The colloquy continued:

“MR. HODGES: It’s not available to me.
“THE COURT: If it is-
“MR. HODGES: I can’t be prepared to recite to Your Honor if the Court erred or did not err in admission of evidence, until I see that.
“THE COURT: You have averred that the Court did err.
“MR. HODGES: Yes, sir; I did to protect my client, to add additional grounds.
“THE COURT: Yes, sir. The motion for continuance is denied. Do you wish to be heard on the motion or wish to offer' evidence on the motion?
“MR. HODGES: No, sir; I am not prepared to go forward without reviewing the transcript.
“THE COURT: The motion is denied and overruled.”

Irrespective of what defendant’s counsel understandably apparently believed as to the possible value of the transcript, we are confident that the trial judge, with his remembrance of the evidence and other matters covered by the transcript of the proceedings, was confident that the transcript would not be of any value to defendant’s counsel and that no injustice whatever to defendant would result in his failure to have a transcript. It is to be noted that in the grounds of the motion for a new trial, there is no ground, except grounds as to the sufficiency of the evidence, that could not be as well presented on appeal as on a hearing of a motion for new trial. We have considered all the contentions made by appellant. He does not question the sufficiency of the evidence, and we find the evidence of sufficient strength to have failed to justify the granting of a motion for a new trial by reason of any claim as to its insufficiency. We have looked for any error prejudicial to defendant in connection with the admissibility of any evidence and have found none. We have further searched the transcript of the proceedings, as well as the record proper, for error of any nature prejudicial to defendant, and have found none. The action of the trial court in overruling defendant’s motion for a continuance did not cause any substantial injury to him.

The judgment of the trial court should be affirmed.

The foregoing opinion was prepared by Retired Circuit Judge LEIGH M. CLARK, serving as a judge of this Court under the provisions of § 6.10 of the Judicial Article (Constitutional Amendment No. 328); his opinion is hereby adopted as that of the Court. The judgment of the trial court is hereby

AFFIRMED.

All Judges concur.

      . Standards expressed in Jordan v. DeGeorge, 341 U.S. 223, 230-231, 71 S.Ct. 703, 95 L.Ed. 886 (1951).