author: LEE, Justice,

text:
    Benjamin HOLLINGSWORTH v. STATE of Mississippi.
    No. 52302.
    Supreme Court of Mississippi.
    Jan. 7, 1981.

      J. Tyson Graham, Graham, Segrest & Johnson, Columbus, for appellant.
    Bill Allain, Atty. Gen. by Frankie Walton White, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before SMITH, P. J., and SUGG and LEE, JJ.
   LEE, Justice,

for the Court:

Benjamin Hollingsworth was convicted in the Circuit Court of Noxubee County, Honorable Joe 0. Sams, presiding, for possession of more than one (1) ounce of marijuana with intent to deliver same and was sentenced to serve a term of five (5) years in the state penitentiary and to pay a fine of three thousand dollars ($3,000). Hol-lingsworth appeals and assigns five (5) errors in the trial below.

On Wednesday, April 11,1979, officers of the Noxubee County Sheriff’s Department had set up a roadblock in Brooksville. All cars going toward Macon on U.S. Highway 45 were being stopped due to water across the highway. After the roadblock had been in operation for thirty (30) to forty-five (45) minutes, a car drove up on Highway 45 Alternate toward Deputy Sheriff James Barnett, slowed down, and then accelerated at a high speed. Officer Barnett gave chase in his police car, both vehicles heading south on Highway 45. As Officer Barnett neared the back of the fleeing vehicle (later determined to be driven by defendant Hol-lingsworth), the car began to weave over the road. Something which appeared to be “hay or chopped grass” was thrown from the driver’s window. Officer Barnett radioed Sheriff Cecil Russell that the appellant was throwing some marijuana out the car window. Officer Barnett caught Hollings-worth approximately a mile from the roadblock, and stopped his vehicle by pushing it into high water which was covering the road. Sheriff Russell arrived five (5) to ten (10) minutes later, carrying two (2) of the bags which had been thrown from the window. Following the arrest, Officer Barnett removed Hollingsworth from his car, and took him to jail. No search of the automobile took place immediately, but a search was conducted by Sheriff Russell a few minutes later. Sheriff Russell testified that he responded to Barnett’s call for assistance and picked up two bags, containing what he thought to be marijuana, along the roadside one-fourth (Vi) mile from where the defendant was arrested. A subsequent search of appellant’s stalled car revealed water in the car and bags, which he believed to have marijuana in them, floating on the water and over the seats.

Certain paraphernalia recovered from Hollingsworth’s car, including a leather bag, scales and a box of plastic bags, were admitted into evidence over the objection of defendant. Toxicologists, who testified at trial, identified the contents of the plastic bags to be marijuana. Appellant moved for a directed verdict at the close of the State’s evidence, but the motion was overruled. He rested without calling any witnesses, and the jury found him guilty as charged. His motion for a new trial was overruled.

I.

Did the lower court err in declining to sustain a demurrer to the indictment?

The demurrer raised the question of whether or not appellant was sufficiently informed by the indictment of the crime for which he was prosecuted and whether he was able to make a defense thereto. He cites and relies upon Umphress v. State, 295 So.2d 735 (Miss.1974), where this Court, in holding that the demurrer to the indictment should have been sustained, said:

“In Kelly v. State, 204 Miss. 79, 36 So.2d 925 (1948), we said:
‘Section 26 of the Constitution of 1890 secures to the accused such a specific description of the nature and cause of the accusation as will enable him to make preparation for his trial, and also such identification of the offense that he may be insured against a subsequent prosecution therefor.. . . (204 Miss. at 88-89, 36 So.2d at 926).’
More recently we defined the office of an indictment in Westmoreland v. State, 246 So.2d 487 (Miss.1971), by stating:
‘An indictment, of course, constitutes the “pleading” in a criminal case. Its office is to apprise the defendant of the charge against him in fair and intelligible language (1) in order that he may be able to prepare his defense, and (2) the charge must be laid with sufficient particularity of detail that it may form the basis of a plea of former jeopardy in any subsequent proceedings.. . . (246 So.2d at 489).’ ”
295 So.2d at 736.

In the present case, appellant is charged with a single offense, not multiple offenses as in Umphress, and he does not have the difficulty here in determining and knowing the details of the charge as in Umphress. See Jenkins v. State, 308 So.2d 95 (Miss.1975). We are of the opinion that the demurrer was properly overruled.

II.

Did the lower court err in permitting introduction of the physical evidence obtained from appellant’s automobile without a search warrant?

The pursuing deputy sheriff saw marijuana being thrown from appellant’s vehicle. Some of it hit his windshield and resembled chopped grass. The sheriff picked up more than one (1) bag of marijuana along the road. No other vehicle had traversed the road. The officers saw the contraband inside the vehicle (plain view) before an attempt was made to search it and the search was necessary in order to preserve evidence floating in the water. Under the circumstances, there was proper cause for the search without a warrant. Fields v. State, 382 So.2d 1098 (Miss.1980); Isaacks v. State, 350 So.2d 1340 (Miss.1977).

III.

Did the evidence show that appellant attempted to deliver the marijuana?

Appellant contends that the evidence fails to show that he had marijuana with the intent to deliver same or that he attempted to deliver it. The State argues that articles found in the automobile such as scales, bags, and paraphernalia, were sufficient to raise an inference that there was an intent, or attempt, to deliver the marijuana. It is settled that intent may be shown by circumstantial evidence. Stinson v. State, 375 So.2d 235 (Miss.1979); Ryals v. State, 305 So.2d 354 (Miss.1974); Shanklin v. State, 290 So.2d 625 (Miss.1974); Newburn v. State, 205 So.2d 260 (Miss.1967); Pearson v. State, 248 Miss. 353, 158 So.2d 710 (1963); and Lee v. State, 244 Miss. 813, 146 So.2d 736 (1962).

However, the inference in the present case flowing from possession of the articles mentioned could just as well infer possession for personal use as intent to deliver the contraband to another person. We are of the opinion that the evidence here, direct and circumstantial, fails to show intent, or attempt, to deliver the marijuana. Consequently, we hold that the appellant should have been sentenced for possession of more than one (1) ounce of marijuana under Mississippi Code Annotated Section 41-29-139(d)(2)(C) (Supp.1980) and the case is remanded for resentencing under that statute.

We have carefully considered the other two assignments of error and find that there is no merit in them.

AFFIRMED AND REMANDED FOR RESENTENCING.

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


source: Caselaw Access Project

author: SUGG, Justice,

license: Public Domain

text:
    GULF GUARANTY LIFE INSURANCE COMPANY v. Olivette KELLEY, Individually and as Executrix of Estate of John R. Kelley, Deceased.
    No. 52005.
    Supreme Court of Mississippi.
    Jan. 7, 1981.
    Fred Krutz, III, W. Scott Welch, III, Luther T. Munford, Butler, Snow, O’Mara, Stevens & Cannada, Jackson, for appellant.
    Ranson P. Jones, III, F. Gerald Maples, Jones, Maples & Lomax, Pascagoula, for appellee.
   SUGG, Justice,

for the Court.

ON MOTION TO RETAX COSTS

Appellee was assessed with all costs of appeal and has filed a motion to retax costs. Judgment was entered in the trial court against appellant in the amount of $3,926.88 for actual damages and $35,000.00 for punitive damages. On appeal we affirmed the trial court’s judgment against appellant for actual damages but reversed and rendered the award of punitive damages, 389 So.2d 920.

As to costs of appeal, this Court is authorized to assess costs in certain cases as it deems proper. Section 11-53-55 Mississippi Code Annotated (1972).

In Pearce v. Ford Motor Co., 235 So.2d 281 (Miss.1970), Mrs. Pearce perfected an appeal contending the trial court erroneously overruled her motion for a new trial on the sole issue of damages which she alleged to be inadequate. Ford filed a cross-appeal asserting that it had been entitled to a directed verdict. The case was affirmed without opinion both on the direct appeal and the cross-appeal and costs were taxed against the appellant. On motion to correct judgment this Court assessed the cost of the appeal one-half to each party under the authority of Shipman v. Lovelace, 215 Miss. 141, 60 So.2d 559 (1952).

In Shipman, appellees sued appellant to have themselves adjudged the owners of a city lot, to cancel the claim of appellant thereto, and to enjoin appellant from interfering with their use of the lot. Appellant answered and filed a cross-bill claiming ownership of the property. The trial court granted the prayer of appellee’s bill and dismissed appellant’s cross-bill. On appeal, this Court affirmed but modified the decree of the trial court and granted appellant the right to retain the use of a sewer line from her house across the lot in "question. As modified, the decree was affirmed. On motion to correct judgment, the costs of appeal were taxed one-half to each party. The Court then held that it had the power to assess costs in its discretion, stating:

We find no statute which expressly or by fair implication makes provision for the assessment of the costs in a case of conditional affirmance other than the general statute, Sec. 682 of the Mississippi Code of 1930, Sec. 1593 of the Mississippi Code of 1942, held applicable to the Supreme Court in Aetna Life Ins. Co. v. Thomas, supra [166 Miss. 53, 146 So. 34] .. . (215 Miss. at 145, 60 So.2d at 561).

Appellant argues that costs were properly assessed against appellee under the authority of Aetna Life Insurance Co. v. Thomas, 166 Miss. 53, 146 So. 134 (1933).

In Aetna, appellees sued appellant for monthly payments alleged to be due him under an accident insurance policy aggregating the sum of $400, and for $104.80 alleged to be due him because of premiums paid by him on the policy after his disability arose. The jury returned a verdict for ap-pellee and a judgment was rendered on the verdict for $504.80 with interest and costs. On appeal, this Court held appellee was entitled to recover $400 due him under the disability clause of the policy but was not entitled to recover for the premiums paid by him, and rendered a judgment here for appellee for $400 with interest from the date of the judgment in the court below. On a suggestion of error by appellant, which was apparently treated as a motion to retax costs, costs of the appeal were taxed against the appellee. Appellee then filed a suggestion of error contending that he should not have been taxed with costs on appeal, and if mistaken in this, then the cost should have been apportioned between him and the appellant. Appellee’s suggestion of error was overruled for the reason stated in the opinion as follows:

The judgment appealed from is in soli-do for five hundred four dollars and eighty cents, was not separable for the purposes of appeal therefrom, unless by agreement, as to which we express no opinion. So that it was necessary for the appellant to appeal from it in its entirety, in order to obtain any relief whatever therefrom. The record also being an entirety, it was necessary for the whole of it to be brought to this court, in the absence of an approved agreement to the contrary, in order for the appellant to obtain any relief from the judgment based on it. The appellant could not by itself alone have lessened, and it did nothing to increase, the costs of the appeal. (166 Miss. at 66, 67, 146 So. at 136).

The Court specifically held that section 682 of the Mississippi Code of 1930 [section 11-53-55 Mississippi Code Annotated (1972)] did not apply in that case. A conflict of authority exists between Shipman and Aetna. Shipman holds that this Court may assess costs in its discretion under section 11-53-55 when the judgment of the trial court is affirmed in part, reversed in part, and rendered. Aetna holds to the contrary. Shipman effectively overruled Aetna without so stating. We are of the opinion that the Shipman case was correctly decided under section 11-53-55.

We therefor hold that we may assess appeal costs in our discretion under section 11-53-55 when the judgment of a trial court is affirmed in part and reversed and rendered in part.

This appeal involved two questions. We affirmed the allowance of actual damages but reversed and rendered the allowance of punitive damages. Appellant was successful in securing a reversal on one question but we affirmed on the other question leaving the appellant liable to appellee for the actual damages assessed by the jury. We are of the opinion that equity requires an equal division of costs in this case. We therefore sustain the motion and tax the costs one-half against each party.

MOTION TO RETAX COSTS SUSTAINED. COSTS TAXED ONE-HALF TO APPELLANT AND ONE-HALF TO APPELLEE.

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

      . If a case shall occur in any court not embraced expressly or by fair implication in some provision of law, the court may make such order for the payment of costs by any of the parties as, in its discretion, may be proper. Every court may protect a party from being taxed with the fees and costs of an excessive number of witnesses summoned at the instance of his adversary.

      . Section 11-53-55 Mississippi Code Annotated (1972).


text:
    CAMELLIA BAY CORPORATION, First General Resources Company and Lifetime Communities, Inc. (Formerly Fidelity Mortgage Investors) v. TRAVELERS INDEMNITY CO. and Camellia Builders, Inc. and Farnale, Inc.
    No. 52288.
    Supreme Court of Mississippi.
    Jan. 14, 1981.
    Kenneth G. Perry, Shell, Buford, Bufkin, Callicutt & Perry, E. Stephen Williams, Young, Scanlon & Sessums, Jackson, for appellants.
    John C. McLaurin, McLaurin & McLau-rin, Brandon, John B. Clark, Daniel, Coker, Horton, Bell & Dukes, Jackson, for appel-lees.
    Before PATTERSON, C. J., and BROOM and WALKER, JJ.
   AFFIRMED ON DIRECT AND CROSS-APPEALS.


text:
    Thomas L. COTHERN v. STATE of Mississippi.
    No. 52120.
    Supreme Court of Mississippi.
    Jan. 14, 1981.
    W. Eugene Henry, Hawkins & Henry, Biloxi, for appellant.
    Bill Allain, Atty. Gen., by Billy L. Gore, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before PATTERSON, C. J., and SUGG and WALKER, JJ.
   AFFIRMED.


text:
    Ike THOMPSON, alias Boss Thompson v. STATE of Mississippi.
    No. 52353.
    Supreme Court of Mississippi.
    Jan. 14, 1981.
    Charles A. Ray, Jr., Hazlehurst, for appellant.
    Bill Allain, Atty. Gen., by Billy L. Gore, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before ROBERTSON, P. J., and LEE and BOWLING, JJ.
   AFFIRMED.

PATTERSON, C. J., SMITH, P. J., and SUGG, WALKER, BROOM and HAWKINS, JJ., concur.


text:
    Cleo MITCHELL, Jr. v. STATE of Mississippi.
    No. 52386.
    Supreme Court of Mississippi.
    Jan. 14, 1981.
    Elliott Andalman, Andalman, Adelman & Steiner, Hattiesburg, for appellant.
    Bill Allain, Atty. Geri., by Mark A. Chinn, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before PATTERSON, C. J., ROBERTSON, P. J., and WALKER, J.
   AFFIRMED.

SMITH, P. J., and SUGG, BROOM, LEE, BOWLING and HAWKINS, JJ., concur.


text:
    Ernest JOHNSON d/b/a Clinton Park Texaco v. Eric CRONIN, a Minor, by Ralph Cronin, Father and Adult, Next Friend.
    No. 52364.
    Supreme Court of Mississippi.
    Jan. 14, 1981.
    Harry L. Kelley, Jackson, for appellant. Seeb Holmes, Jackson, for appellee.
    Before PATTERSON, C. J., and SUGG and WALKER, JJ.
   AFFIRMED.


author: FAULKNER, Justice.

text:
    William F. DENSON, III, et al. v. Mabel Shirley GIBSON et al.
    79-205.
    Supreme Court of Alabama.
    Sept. 19, 1980.
    Rehearing Denied Nov. 7, 1980.
    Oliver P. Head of Wallace, Ellis, Head & Fowler, Columbiana, for appellants.
    Mickey L. Johnson, Alabaster, for appel-lees.
   FAULKNER, Justice.

This is an appeal from a judgment quieting title in complainants to certain real property located in Shelby County. We affirm.

Complainants initially filed suit against respondents pursuant to § 6-6-540, Code 1975, to quiet title in personam to 35.75 acres of wild, unoccupied land in Shelby County. The complaint as finally amended described 49.52 acres.

Respondents’ motion to dismiss was denied by the trial court. They then answered by disclaiming any interest in a portion of the 49.52 acres lying east of the mountain.

Respondents answered further by claiming to own the remaining land in fee simple except for three easements crossing the property; by outlining their chain of title to the property; and by claiming to have been in actual or constructive adverse possession for more than twenty years. Respondents admitted the ambiguous nature of the descriptions of their property and offered evidence to show the extent of possession by themselves and their predecessors in title in order to mitigate the ambiguity in the descriptions.

The case was tried to the court without a jury. Having heard the evidence ore tenus, the court quieted title in complainants; and made findings of fact:

1) that the complainants at the time of filing the bill of complaint were the owners in fee simple of, and were in the peaceable actual or constructive possession of, the land described in the complaint;
2) that at the time of filing complainants’ bill of complaint, no action was pending to enforce or test the validity of complainants’ title, claim or encumbrance;
3) that all of complainants’ allegations of fact were true;
4) that respondents’ claims at the time of the filing of the complaint constituted a cloud on complainants’ title; and
5) that respondents’ claims both as to record title and adverse possession were without merit.

Respondents were permanently enjoined from asserting any right, title or interest in or to the described property. When the trial court failed to rule on their motion for JNOV or new trial within 90 days, respondents appealed from the findings of fact and denial of their motion pursuant to ARCP 59.1.

Two issues are presented for decision:

1) Does the evidence support the trial court’s finding that complainants were in peaceable actual or constructive possession at the time they filed the complaint?
2) Did the plaintiffs prove that no action was pending to enforce or test the validity of respondents’ claim, title or encumbrance on the property?

The established standard of review in a case heard ore tenus is that the trial court’s findings of fact will not be disturbed unless plainly erroneous. Adams v. Bethany Church, 380 So.2d 788 (Ala.1980); Williams v. Romano, 289 Ala. 190, 266 So.2d 750 (1972); Ford v. Washington, 288 Ala. 194, 259 So.2d 226 (1972). To maintain an action to quiet title to real property, however, complainant must prove certain facts. If these elements are not proved, the complaint is due to be dismissed unless the evidence shows that title should be quieted in the respondent. Chestang v. Tensaw Land & Timber Co., Inc., 273 Ala. 8, 134 So.2d 159 (1960). Complainant must prove, inter alia, that he was in the actual or constructive possession of the property, and that his possession was peaceable as distinguished from scrambling or disputed. Hinds v. Slack, 293 Ala. 5, 299 So.2d 717 (1974). It is the character of the possession at the time the suit commenced which is decisive. Davidson v. Blackwood, 250 Ala. 263, 34 So.2d 205 (1948). Furthermore, there must be no suit pending at the time the suit commenced testing respondents’ claims. Chestang; Wisener v. Trapp, 216 Ala. 595, 114 So. 196 (1927).

One has constructive possession of property when he has a legal estate in fee in the property. Hinds; George E. Wood Lumber Co. v. Williams, 157 Ala. 73, 47 So. 202 (1908). And one is in peaceable possession as. opposed to scrambling possession when at the time of the suit no other party is denying the fact of complainant’s possession. If both parties claim actual possession or are scrambling for it, then the possession is not peaceable. Adams v. Bethany Church, 380 So.2d 788 (Ala.1980) (quoting Hinds v. Slack); Davidson v. Blackwood. But isolated acts by the respondent which do not constitute interference with complainant’s peaceable possession are insufficient to defeat his claim to the property. Cobb v. Brown, 361 So.2d 1069 (Ala.1978); Ford v. Washington. Whether there is peaceable possession, however, must be decided on the facts of the particular case. Williams v. Romano.

In the instant case, complainants did not claim to be in actual possession; rather, they claimed to be in constructive possession by virtue of a deed given to Mabel Gibson’s husband which she allegedly inherited from him. Respondents, on the other hand, claim to be in constructive possession by virtue of quitclaim deeds Zollie Cowart, Jr., purchased from a Rudolph Walker and his family.

Respondents assert that complainants were not in peaceable possession at the time the suit was filed as required by the statute. Rather, they claim that at best complainants’ possession was scrambling or disputed.

The trial court heard testimony from Mrs. Mabel Shirley Gibson, and from Mr. Joe Lacey. Mrs. Gibson, age 82, testified that she had obtained the property through inheritance from her husband, John C. Gibson, who died in 1937. He, in turn, had received the deed to the property as a gift from his father, Daniel F. Gibson, about 1923. She said she had paid the tax assessments on the property since 1923. Although the testimony was confusing, Mrs. Gibson apparently had the property surveyed in 1970-71. She testified that no one had ever lived on the property nor had it been changed in any way. She said that an “unlivable” house had been built in the area, but she did not know if it was on the land she claimed or the tract of land next to it. For a few months in 1918-19, she and her husband did some surface mining on the land, but since that time, she had done nothing more than walk across it a few times. She was last on the property in the mid-1970’s.

Mr. Lacey testified that he had resided in the area since before 1918. It was with Mr. Lacey’s assistance that the surveyor was able to identify the corners of the property and complete the 1970-71 survey. Mr. Lacey also referred to the incomplete cement block house Mrs. Gibson had mentioned; he said it was located on land known in the area as the “Wesley Walker property” which, according to Lacey, lies north of complainants’ land. (It is the Walker property from which respondents derive their title.)

The defense also presented only two witnesses, Mr. H. B. Gibson and Mr. Zollie Cowart, Jr., one of the respondents. (This Mr. Gibson is not related to the complainants.)

Mr. Gibson, age 78, testified that he had lived in the area since he bought some land there in 1956. He said that Mabel Gibson was reputed to own the property to the west of his land and that Rudolph Walker (Wesley Walker’s nephew) was reputed to own the land north of his. Mr. Gibson also testified that a partially built concrete house was on the Walker property. According to Mr. Gibson, Rudolph Walker ordered the builder off his land before he was able to complete it. Mr. Gibson said that Rudolph Walker had shown him the corners of the Walker property and that he later learned that the respondent Mr. Cowart had purchased this land from Rudolph Walker. He learned in 1957 or 1958 that the Gibsons were also claiming this same land.

Respondent Zollie Cowart, Jr., age 62, testified next that he bought 40 acres of land known as the J. M. Sanders and T. J. Sanders property in 1952 from a Mr. Farris. Mr. Farris told Cowart that a Mr. Brantley had started to build a house on that property but that he was ordered off the land by Rudolph Walker before he finished it. Mr. Farris gave Cowart a quitclaim deed for that land.

Subsequently, Cowart learned that the Gibsons were claiming part of the land; Mr. Cowart began inquiring among those who had lived in the area over the years regarding the general reputation of the property’s ownership. It was at this time that Mr. Cowart was shown the corners of the Wesley Walker property. In 1957, Mr. Cowart located Rudolph Walker and went on the property with him. Mr. Walker pointed out the boundaries of the land to Mr. Cowart which he claimed to own. He told Mr. Cowart about the unfinished block house lying on his property. Mr. Cowart subsequently bought this property from Walker and his two sisters. He received a quitclaim deed to the land.

Mr. Cowart testified that although there were some old fields located on this property that had obviously been planted with corn at one time, there was no evidence of any stripmining on the land he claims to own. Two or three years after he purchased the land from Walker, Mr. Cowart sold timber off the land. He said further that about two years ago, he stopped some men who were cutting on the Walker property. Mrs. Gibson had sold the property to them in 1975. Mr. Cowart also testified that he had sold two pipeline easements across the property and that Alabama Power Company had condemned a portion for a powerline. Mr. Cowart was the named defendant in that condemnation proceeding. Furthermore, after purchasing the property, he had had it surveyed. It was surveyed again by a Mr. Howard in 1971; Mr. Co-wart showed Howard the lines of the property he claimed to own. Howard was hired by Mrs. Gibson.

In addition to the oral testimony before the Court, there was documentary evidence consisting of abstracts, maps, deeds, and aerial photographs. The abstract shows a common source of title for complainants and respondents. However, the descriptions contained therein are vague and ambiguous. Apparently both parties relied on the general reputation of the property as recalled by longtime residents of the area in reaching their conclusions about the boundaries of their land.

As stated above, the abstracts show a common source of title for both parties. Respondents’ title, however branched from the Sanders family by deed dated October 30,1884. The subsequent deed was from T. J. Sanders to Wesley Walker who conveyed to Rudolph Walker in 1937. Mr. Cowart’s quitclaim deeds came from Walker in 1958. He then conveyed a portion of the property to the other two named respondents. Although the property descriptions throughout are vague, the evidence showed acts of possession by Wesley Walker, Rudolph Walker and Zollie Cowart, Jr.

Complainants’ title branched from the Sanders family in 1875. Mrs. Gibson’s father-in-law bought the land in 1911 from H. L. McConnell. McConnell’s trustee, A. H. McCormick, had obtained the land from the Sanders family by a deed which excepted 70 acres, more or less, as occupied by J. M. Sanders and T. J. Sanders, Wesley Walker’s grantors. The record title stops in Mrs. Gibson’s father-in-law. Respondents contend that the contested property lies within the 70 acres excepted from the Gibsons’ deed.

In light of all of the evidence we are not convinced that the trial court was plainly and palpably wrong in quieting title in the complainants.

Section 6-6-540 also requires the complainant to prove that no action is pending to enforce or test the validity of defendant’s title, claim, or encumbrance to the land at the time complainants commenced the suit. Wisener v. Trapp, 216 Ala. 595, 114 So. 196 (1927). Complainants admit in brief to a failure of proof regarding this issue; however, they contend that respondents waived the right to object to this issue by raising it for the first time on appeal. The complainants neither alleged it in their complaint nor offered proof of it at trial. Yet the trial court’s finding of fact included the following:

That at the time of filing of the Plaintiff’s Complaint, no action [was] pending to enforce or test the validity of Plaintiffs’ [Defendants’?] title, claim or encumbrance.

In Wisener v. Trapp, the complainant alleged in the bill of complaint that no suit was pending. The respondent denied the allegations generally, thereby placing the burden on the complainant to prove the allegation. Although the evidence showed peaceable possession in the complainant, the Supreme Court affirmed the trial court’s refusal to grant relief to the complainant by holding that proof of no pending action “is essential to be established in cases of this character.” Wisener v. Trapp.

A similar situation existed in the case of Bell v. Pritchard, 273 Ala. 289, 139 So.2d 596 (1962); however, although the complainant averred in the complaint that no suit was pending, the respondent failed to deny it. The point was thus taken as proved although complainant did not offer proof of the matter at trial. Therefore, judgment in favor of complainant was proper.

In the instant case, neither the initial complaint nor the amended complaint averred that no suit was pending to test the validity of defendants’ claim. Neither did the respondents admit or deny that a suit was pending. This situation is exactly on point with the case of Lawson v. Garrett, 286 Ala. 125, 237 So.2d 648 (1970).

This Court had this to say:

Here, the averments of the bill, the answer, the cross bill and answer thereto, and all the evidence necessarily infer that no suit was pending and this was the first contest, claim or dispute that had arisen since the division of the forty acres in 1906. The cause was tried by all parties on this basis and was so treated by the court. In the absence of a specific objection, bringing the omission to the attention of the trial court, we will not, ex mero motu, reverse on a point raised in brief on appeal for the first time.
The functions of this court in its appellate character are strictly confined to the action of trial courts upon questions which are presented to and ruled upon by them. We cannot put a trial judge in error for failure to rule on a matter which has never been presented to, nor decided by, him. [Emphasis added.]

This is precisely the situation in the instant case. There is nothing in the record to indicate that this issue was ever presented to the trial court for its consideration. The case was tried by the parties on this basis; hence the trial court could properly “infer” that no suit was pending. Therefore, on the facts of this case, complainants’ failure of proof on this issue has no effect on the outcome of the case.

The judgment of the trial court is affirmed.

AFFIRMED.

ALMON, SHORES and EMBRY, JJ., concur.

TORBERT, C. J., concurs in the result.


author: PER CURIAM.

text:
    George Ernest KNAPP, Sr. v. Charles David KNAPP and Peggy Knapp Byrd.
    79-242.
    Supreme Court of Alabama.
    Sept. 26, 1980.
    Rehearing Denied Nov. 7, 1980.

      Samuel N. Crosby of Stone, Partin & Granade, Bay Minette, for appellant.
    James L. Shores, Jr. of Shores & Moore, Fairhope, for appellees.
   PER CURIAM.

This action was filed by the Plaintiff-Appellant, seeking redemption of a lot bought by his brother and sister at a judicial foreclosure sale. The trial Court refused to allow the redemption of the entire lot, but held that Appellant was the owner of a one-third undivided interest in the property. Plaintiff appeals from that judgment. We affirm.

The material factual background is as follows: On March 25,' 1957, Appellant George Ernest Knapp, Sr., purchased and received the patent to Lot 70, Section 25, Township 9 South, Range 2 East, Baldwin County, Alabama. On July 18,1958, Appellant conveyed the East Half or 83.55 feet of the property to his mother, Helon Francis Knapp, by a warranty deed. Appellant retained title to the West Half of the lot after the conveyance of the East Half to his mother.

On July 1, 1963, Helon F. Knapp delivered to her son and his wife a $750.00 “war bond,” and the three entered into an agreement prepared by Appellant and entitled “Option Agreement.” The Option Agreement provided that Appellant and his wife would convey to his mother the West Half of Lot 70 in the event the $750.00 debt was not repaid within one year. Helon Knapp considered the agreement breached and treated the “Option Agreement” as having conveyed title to her. Appellant thereafter acknowledged her ownership of the whole lot. In a letter to his brother, Charles David Knapp, dated June 9, 1975, he said: “However, as I told you on the phone I will abide by mother’s desire and you can consider the entire lot to be willed as she specifies.”

The trial Court found that the $750.00 loan was never repaid by Appellant to his mother during her lifetime or to her estate.

Helon F. Knapp died on October 2, 1974. Defendants Charles David Knapp and Peggy Knapp petitioned to have the holographic will of Helon F. Knapp probated. By this will the testatrix devised the whole Lot 70 to her three children; and if she owned only the East Half, she devised that half to her daughter Peggy and son Charles David.

During the pendency of the administration of the estate, Appellant executed a mortgage to James Russ on any interest Appellant would inherit from his mother in her house and lot in Birmingham, the one-third undivided interest in the East Half of Lot 70 left to him in his mother’s will and all of the West Half of Lot 70.

Appellant defaulted on the Russ mortgage, and, on December 5, 1977, a foreclosure sale was held. At this sale, Defendants, a brother and sister of the Appellant, purchased the property (Lot 70) for $12,-496.63. Thereafter, and within one year, Appellant made a demand on the Defendants for a statement in writing of the debt and all lawful charges claimed by them. Defendants then furnished a statement of the debt and charges, but refused to recon-vey the property.

On December 1, 1978, Appellant tendered to Defendants $13,753.04 through the court, at the same time filing his complaint for redemption of the entire property. Thereafter, the trial Court decreed that Appellant and the two Defendants were owners of undivided one-third interests in and to Lot 70.

I. Appellant’s $750.00 Bond Obligation.

Appellant alleges that the question of the payment vel non of his $750.00 debt owed to his mother was determined by the probate court’s estate settlement decree, thereby rendering improper a consideration of this issue by the circuit court. We cannot agree.

Such assertion is contrary to Appellant’s own testimony at the trial. When the administration of the estate was concluded, the only question remaining to be resolved was that of who had title to the lot in question. Such fact was expressly acknowledged by Appellant during the trial.

As title to the real property was not an issue before the probate court, the judgment of that court was not conclusive as to Appellant’s agreement with his mother respecting the $750.00 obligation and his remaining interest in the property. Pitts v. Howard, 208 Ala. 380, 94 So. 495 (1922).

II. Defendant’s Defense of Unclean Hands.

Appellant argues that Defendants should be barred from raising as a defense to his complaint the equitable doctrine of unclean hands. It is noteworthy, as Appel-lees suggest, that, while the unclean hands defense was raised as one of several defenses to the action, it was not adopted by the trial Court. Therefore, availability of such defense to Appellees is irrelevant. As the trial Court did not speak to this issue, we are unable at this point to focus our attention thereon. Burch v. Southeastern Sand & Gravel Co., 278 Ala. 504, 179 So.2d 83 (1965).

III. Defendants-Appellees’ Use of Estate Funds.

Appellant suggests that Defendants themselves had unclean hands because they had used for their personal benefit funds which were entrusted to them as executors of their mother’s estate. Such assertion is without merit. The propriety of the proceedings of the probate court in the administration of Helon F. Knapp’s estate was not before the trial Court for review in this case. Likewise, the doctrine of unclean hands is confined in application to matters related or connected with the controversy before the court, which here involved only title to the property in question. Daniel v. Haggins, 286 Ala. 409, 240 So.2d 660 (1970). See, also, Sterling Oil of Oklahoma, Inc. v. Pack, 291 Ala. 727, 287 So.2d 847 (1973).

IV. Payment to Defendants of the Redemption Amount and Interest Thereon.

Appellant cites trial Court impropriety in its paying out to Defendants both the redemption amount and the interest accrued thereon, by the original amount’s having been placed in an interest bearing account. We fail to find substance in this contention. To redeem from a foreclosure, the creditor redeeming must pay or tender to the purchaser the purchase money plus interest at the rate of 10 per cent per annum. § 6-5-235, Code of Alabama 1975. Because he was adjudged not entitled to a return of the money, he likewise was not due any interest it may have earned.

V. Construction of the Will by the Trial Court.

Appellant claims error in the trial Court’s construction of the will of his mother, Helon F. Knapp. We disagree. In her will, Helon F. Knapp stated, “I give and bequeath the whole lot, approximately 167.-10 feet, to be divided three ways to my children.”

The trial Court’s construction of the will comports with its clear and unequivocal terms. Moreover, though not an aid to our interpretation of the will, it is noteworthy that Appellant informed his brother through a letter that “... I will abide by Mother’s desire and you can consider the entire lot to be willed as she specifies.” We find no error in this aspect of the appeal.

VI. Admission of Helon F. Knapp's Memorandum.

Finally, Appellant complains that the trial Court erred by admitting into evidence an unexecuted and undated memorandum written by his mother, Helon F. Knapp. We disagree.

Admitted into evidence was a memorandum found among his mother’s papers after her demise. Appellant testified that this memorandum was the writing of his mother. Assuming arguendo that such document was inadmissible, we are unable to discern any injury flowing to Appellant therefrom. Hawie v. Kelly, 256 Ala. 31, 53 So.2d 609 (1951).

Appellant moved for the trial Court to vacate or to amend the judgment, or, in the alternative, moved for a new trial. The basis for such requests was that the judgment was unsupported by, and contrary to, the evidence and the law.

Refusal by the trial Court to grant such a motion carries with it a presumption of correctness. Taylor v. Birmingham News Co., 341 So.2d 689 (Ala.1977). The case having been heard ore tenus, the trial Court’s judgment is presumptively correct and will not by disturbed on appeal unless it is unsupported by the evidence or it is plainly erroneous and manifestly unjust. Noel Smith Development Co., Ltd. v. National Filtronics, 360 So.2d 338 (Ala.1978).

We find the trial Court’s decree, in all its aspects, is amply supported by credible evidence and comports with cognizable standards of fairness and justice.

AFFIRMED.

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

SHORES and EMBRY, JJ., recused.


author: BEATTY, Justice. FAULKNER, Justice

text:
    Audrey K. MATTINGLY v. Walter D. CUMMINGS et al.
    79-17.
    Supreme Court of Alabama.
    Oct. 3, 1980.
    Rehearing Denied Nov. 7, 1980.
    Gary A. Moore of Shores & Moore, Fair-hope, for appellant.
    Greg F. Jones, Robertsdale, for appellees.
   BEATTY, Justice.

This is an appeal from an order of the Circuit Court of Baldwin County denying Audrey K. Mattingly, the mother of a deceased minor, the right to intervene in the wrongful, death action initiated by her ex-husband, Walter D. Cummings, the deceased minor’s father. We affirm.

The undisputed facts are that in December, 1978 Dwaine L. Cummings, a minor, was struck and killed by an automobile occupied by Paula Dukes and Kenneth W. Clark. On May 21, 1979 Walter Cummings commenced a wrongful death action against the occupants of the car. On July 11, Audrey Mattingly filed an amended motion to intervene in the lawsuit commenced by her ex-husband, alleging that because she was awarded the care, custody, and control of her children in a divorce decree against Cummings, she was allowed, as a matter of right, to intervene in the action. On August 22, the trial judge denied her amended motion to intervene, from which she appeals.

The constitutionality of Code of 1975, § 6-5-391 — conferring a right to bring a wrongful death action of a minor — and its reference to the conditional provisions in § 6-5-390 are at issue. These Code sections state:

§ 6-5-391. Wrongful death of minor.
When the death of a minor child is caused by the wrongful act, omission or negligence of any person, persons or corporation, his or their servants or agents, the father, or the mother in cases mentioned in section 6-5-390, or, if the father and mother are both dead or if they decline to commence the action, or fail to do so, within six months from the death of the minor, the personal representative of such minor may commence an action, and in any case shall recover such damages as the jury may assess; provided, that an action by any one of them for the wrongful death of the minor shall be a bar to another action either under this section or under section 6-5-410. (Code 1876, § 2899; Code 1886, § 2588; Code 1896, § 26; Code 1907, § 2485; Code 1923, § 5695; Code 1940, T. 7, § 119.) § 6-5-390. Injury to minor child.
A father or, in case of his death or desertion of his family, his imprisonment for a term of two years or more under a conviction for crime, of his confinement in an insane hospital or if he has been declared of unsound mind, the mother may commence an action for an injury to a minor child, a member of the family. (Code 1852, § 2135; Code 1867, § 2531; Code 1876, § 2898; Code 1886, § 2587; Code 1896, § 25; Code 1907, § 2484; Code 1923, § 5694; Code 1940, T. 7, § 118.)

When read together, these two sections provide that the father shall have the primary right to commence an action for the wrongful death of his minor child, and the mother has a secondary right to do so. Her right to initiate the action is contingent upon the father’s inability to do so on account of his death, desertion, imprisonment, or insanity. Although that priority has been recently amended, effective July 19, 1979, nevertheless the original section was in effect when this cause of action arose.

Mrs. Mattingly contends that these statutes, creating gender based classifications, violate the Fourteenth Amendment of the United States Constitution and Article I of the Alabama Constitution, because they deny the mother a right equal to the father’s to bring an action for the wrongful death of a minor child without any substantial justification for doing so. Mr. Cummings asserts that the statutes are constitutional because the father is primarily liable for the support and maintenance of his minor children; therefore, the father should be granted the primary right to recover damages from a wrongful death action of his child. Relying upon our decision in Jones v. Jones, Ala., 355 So.2d 354 (1978), that the mother’s conditional right to bring a wrongful death action is constitutional, the lower court found that Mrs. Mattingly had no standing to intervene in the wrongful death action because the child’s father had previously filed the lawsuit.

In Thorne v. Odom, Ala., 349 So.2d 1126 (1977), and Jones v. Jones, Ala., 355 So.2d 354 (1978), both cases having involved actions for the wrongful death of minor children, this Court upheld the classification establishing the father’s conditional priority to maintain the action and receive any damages awarded. We quote from Jones, supra at 355-6:

It has long been established by the legislature that, as between the two parents, the father has the primary duty to support and maintain the minor children of the parties. It is free, therefore, to provide that the parent with this primary obligation is entitled to any damages recovered as a result of injury to or death of a minor child.
The appellant next argues that the legislation is invalid under the Constitution of the United States and the State of Alabama, because it discriminates against mothers of minor children. This argument was advanced and rejected in the recent case of Thorne v. Odom, 349 So.2d 1126, 1128 (Ala.1977), where this court said:
“Initially, we hold that the trial court’s order declaring Title 7, § 118 unconstitutional was erroneous. Contrary to his finding, that statute does not give the father the absolute right over the mother to file such an action, but a conditional right as the remainder of our opinion will show. Additionally, we disagree that the statute imposes an arbitrary distinction. Under the Fourteenth Amendment to the United States Constitution, states may treat different classes of people differently when the classification rests upon a fair and substantial relation to the object of the legislation. Montgomery County v. Walsh, 274 Md. 502, 336 A.2d 97 (1975); Royster Guano Co. v. Virginia, 253 U.S. 412, 40 S.Ct. 560, 64 L.Ed. 989 (1920). The object of § 118 is to provide a right of action for the parent’s damages for loss of services, expense of treatment, etc. for the child’s injury. Section 119, by the same token, allows a right of action in cases of wrongful death. The classification imposed by § 118 is not arbitrary, because the legislature has recognized that, between the two parents, the father has the primary and continuous duty to support and maintain his minor children reasonably according to his means. Thomason v. Thomason, 53 Ala.App. 206, 298 So.2d 627 (1974); Brock v. Brock, 281 Ala. 525, 205 So.2d 903 (1967); Stovall v. Johnson, 17 Ala. 14 (1849). This continuing obligation gives the father the priority in receiving any damages because of the injury or death of the child.”

Having given careful attention to the appellant’s arguments, nevertheless we adhere to the views this Court expressed in those cases.

Let the judgment be affirmed.

AFFIRMED.

TORBERT, C. J., and MADDOX and AL-MON, JJ., concur.

FAULKNER, JONES and EMBRY, JJ., dissent.

SHORES, J., recused.

FAULKNER, Justice

(dissenting).

The Court was called upon to reconsider the prior holding in Jones v. Jones, 355 So.2d 354 (Ala.1978), and to determine that the wrongful death statute, conferring a conditional right upon the mother to bring the action, yet conferring an absolute right upon the father, violates the equal protection clauses of the United States and Alabama Constitutions because it creates arbitrary and capricious gender based classifications. It is after careful reflection and deliberation, that I would hold that the gender based classifications created in §§ 6-5-391 and 6-5-390 are unconstitutional because they deny equal protection of the law without any substantial relationship to the intendment of the wrongful death statute.

The threshold determination to this conclusion is which of the three equal protection tests espoused by the United States Supreme Court applies to this action. I recognize that the traditional rational basis test is typically invoked when the statute under review relates to socioeconomic legislation. McGowan v. Maryland, 366 U.S. 420, 81 S.Ct. 1101, 6 L.Ed.2d 393 (1961); Railway Express Agency, Inc. v. New York, 336 U.S. 106, 69 S.Ct. 463, 93 L.Ed. 533 (1949). Under this test the regulation must meet minimal judicial scrutiny so that the classification is rationally and reasonably related to the purpose for which the statute was created.

From the skeleton of this test, two other tests have been carved out. The compelling state interest test, when the statute is strictly construed, is applicable when fundamental rights have been encroached upon, Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969), and when suspect classifications have been created. Only three classes have been declared to be suspect, those with reference to race, alien-age, and religion. Loving v. Virginia, 388 U.S. 1, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967) (race); Examining Board of Engineers, Architects and Surveyors v. Flores De Otero,

426 U.S. 572, 96 S.Ct. 2264, 49 L.Ed.2d 65 (1976); Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220 (1886) (alienage); Hunter v. Erickson, 393 U.S. 385, 89 S.Ct. 557, 21 L.Ed.2d 616 (1969) (religion). It is well implanted within the minds of jurists that, to date, gender based classifications have been given the elevated status of a suspect classification by only a plurality of the Supreme Court. Frontiero v. Richardson, 411 U.S. 677, 93 S.Ct. 1764, 36 L.Ed.2d 583 (1973). Therefore, it is understood that generally the compelling state interest test is not employed in these instances.

The third, nascent, test — the substantial relationship test — has received widespread acceptance for use in the area of gender based classifications. Craig v. Boren, 429 U.S. 190, 97 S.Ct. 451, 50 L.Ed.2d 397 (1976). Under this test the classifications must be greater than rationally related to the purpose for which the statute was created; these classifications must be substantially related to the furtherance of the legislative objective. The judicial review must be more than minimal and less than strict. Craig. I am not yet ready to hold that sex is a suspect classification, nor do I feel comfortable giving minimal scrutiny to gender based classifications. Therefore, with deference to precedents established, I will apply the substantial relationship test to the statutory classifications codified in our wrongful death statute of a minor.

Having made the threshold determination to employ the substantial relationship test, I now turn to the purpose of the wrongful death statute and ascertain whether the gender based standing to sue classifications advance that objective. Sections 6-5-391 and 6-5-390, respectively, create distinct and separate causes of action. McNamara v. Logan, 100 Ala. 187, 14 So. 175 (1893). Section 391 deals with a cause of action only for the wrongful death of a minor; the latter section deals only with a cause of action for the injury of a minor. These two sections do enmesh, however, only regarding the contingencies delineated in § 390 as to when the mother is given the right to bring the cause of action under either section.

The types of damages recoverable under each section are different. Section 390 provides for the recovery of loss of the child’s labor, medical expenses, and the value of the parent’s services in caring for the child when the parent loses time from work. Smith v. Richardson, 277 Ala. 389, 171 So.2d 96 (1965). Punitive damages are not recoverable for the injury of a minor, Smith.

By contrast, our wrongful death statute is solely penal in nature and compensatory damages are not recoverable. Eich v. Town of Gulf Shores, 293 Ala. 95, 300 So.2d 354 (1974). Nettles v. Bishop, 289 Ala. 100, 266 So.2d 260 (1972). The stated purpose of our wrongful death statute is to punish wrongful conduct and to deter future similar conduct, Nettles, and the amount recovered is not dependent upon the amount of the loss sustained by the victim’s survivors. The jury’s assessment of the damages is measured by the enormity of the wrong, Crenshaw v. Alabama Freight, Inc., 287 Ala. 372, 252 So.2d 33 (1971), and the culpability of the wrongdoer. Louisville & N. R. R. v. Cross, 205 Ala. 626, 88 So. 908 (1921).

Therefore, I disagree with the majority’s reaffirming the language in Jones, where the Court stated:

The object of § 118 [now § 6-5-390] is to provide a right of action for the parent’s damages for loss of services, expense of treatment, etc. for the child’s injury. Section 119, [now § 6-5-391] by the same token, allows a right of action in cases of wrongful death, (emphasis supplied).

It is not “by the same token” that the “object” of the wrongful death statute is to provide compensation for loss as is the design of the injury statute. Similarly, it is not by the same token that the injury statute is punitive in nature as is the wrongful death statute. Notwithstanding the overlap in these two sections regarding the mother’s contingent right to bring the action, these two sections were not enacted to further the same purpose.

From the premise that the purpose of the wrongful death statute is penal in nature, I next address the issue of whether the priority classifications, incorporated by reference in the wrongful death statute from the injury statute, are substantially related to the attainment of this penal object. It is asserted by Cummings that the classifications are substantially related to the object of the statute because it is the father who is primarily liable for the support and maintenance of his minor children; therefore, it is the father who should be granted this superior standing to sue for the wrongful death of his children. Cummings relies upon the Court’s language reprinted in Jones, from Thorne:

The classification imposed by § 118 [now § 6-5-390] is not arbitrary, because the legislature has recognized that, between the two parents, the father has the primary and continuous duty to support and maintain his minor children reasonably according to his means. Thomason v. Thomason, 53 Ala.App. 206, 298 So.2d 627 (1974); Brock v. Brock, 281 Ala. 525, 205 So.2d 903 (1967); Stovall v. Johnson, 17 Ala. 14 (1849). This continuing obligation gives the father the priority in receiving any damages because of the injury or death of the child, (emphasis supplied).

I disagree with the contention that this duty to support is justification for bestowing upon the father a superior right to bring the wrongful death action. There is no substantial relationship between the penal wrongful death statute and the bestowment upon the father of a superior standing to initiate, and recover from, the lawsuit. Perhaps there is a substantial nexus between the priority classifications in § 390 and the compensatory object of the injury statute; but, I cannot find any reason for using sex as a basis for a primary right to commence a wrongful death action when the object of the cause of action is to deter and punish rather than to compensate.

Cummings argues that Mrs. Mattingly does not have standing to raise the constitutional issues or to intervene because she failed to allege in her motion to intervene that she had custody of the child at the time of his death. Her motion is sufficient “to affirmatively show the requisite interest in the pending litigation and facts establishing [her] right to [intervene].” Kennesaw Life & Accident Insurance Co. v. Old National Insurance Company, 291 Ala. 752, 287 So.2d 869 (1974). In her motion she alleges that “she is the mother of Dwaine Louis Cummings, deceased,” and that “[approximately fourteen (14) years ago movant and plaintiff were divorced by a decree entered by a Court in the State of California by which decree movant was awarded the care, custody and control of Dwaine Louis Cummings. . . . ”

Section 390 does not prescribe that either parent must allege custody as a prerequisite to bring the action. The statute simply sets forth those cases where the father or mother shall bring the action without regard to the parent who has legal custody of the child at the time of death. In fact, the custody issue lends support to my opinion that the statute is unconstitutional; there is no nexus between a penal statute and statutory classifications that permit the father the primary right to initiate the action without regard to whether the father has legal custody of the child.

Cummings’ contention that Mrs. Mattingly has no standing to sue because she failed to allege loss of services is likewise unmeri-torious because these damages play no part in a claim for wrongful death. Therefore, Mrs. Mattingly is not precluded from raising the constitutional issues on appeal for want of alleging in her motion (1) custody of her child at the time of his death; or (2) loss of the child’s services.

Within the past several years, this Court has had the occasion to find some of the gender based statutes unconstitutional when challenged on equal protection grounds. In Peddy v. Montgomery, 345 So.2d 631 (Ala.1977), this Court held that the statute,

limiting the freedom of a married woman to alienate or mortgage her lands, or any interest therein, without the assent and concurrence of her husband, violates the provisions of Article 1, Constitution of 1901, in that it denies to that category of adult landowners rights guaranteed to all other adult landowners by the Constitution and laws of this state.

In Parker v. Hall, 362 So.2d 875 (Ala.1978), this Court held that the statute “which provides that a woman’s marriage revokes her Will, is unconstitutional in that it denies equal protection of the law.”

Justice Jones, dissenting in Orr v. Orr, 351 So.2d 906 (Ala.1977), opined that “any discrimination as to who may receive alimony, merely because of sex, in my opinion, must be viewed as arbitrary.” In Orr v. Orr, 440 U.S. 268, 99 S.Ct. 1102, 59 L.Ed.2d 306 (1979), the Supreme Court held the alimony statute unconstitutional because it provided that only men, and not women, shall pay alimony. In that case it was noted that the “old notions” that it is the man’s primary responsibility to enter into the marketplace to provide for the essentials of the home while it is the woman’s place solely to stay in the home are no longer reasons for gender based statutes. Indeed, a statute which has as its foundation the outmoded precept that the man is the head of the family in all instances “is to ignore the realities of life as we know it.” Peddy, supra, at 637.

I do not, in this case, enlist any views on the constitutionality of new § 390, nor do I intimate any expansion of the holding in Orr or express an opinion on the familial roles of men and women. My opinion in the instant case is that Code 1975, § 6-5-391, with its reference to the contingent right to sue in § 390, is unconstitutional only insofar as it grants the father an unconditional superior right to bring a cause of action for the wrongful death of his child, while it grants to the mother a conditional subordi-nant right to commence the lawsuit. I opine that the gender based classifications do not substantially relate to the penal object of the wrongful death statute.

I would reverse and remand.

JONES and EMBRY, JJ., concur.


author: BEATTY, Justice.

text:
    Floyd PEDDYCOART, Vera Peddycoart, and Charlotte Peddycoart v. CITY OF BIRMINGHAM.
    79-628.
    Supreme Court of Alabama.
    Dec. 24, 1980.

      R. B. Jones, Jones & Monroe, Birmingham, for appellants.
    Herbert Jenkins, Jr., Milford G. Bass, Jr., Birmingham, for appellee.
   BEATTY, Justice.

In an earlier decision in this case this Court reversed the trial court, which had granted a motion to dismiss, and the case was remanded. Peddycoart v. City of Birmingham, Ala., 354 So.2d 808 (1978). It is before us once again following a directed verdict for the defendant.

We quote from the appellants’ brief for the two issues they present and which we will address:

I

Should this Court establish or allow a cause of action in this state based on Restatement of Torts, 2nd Edition, Section 46, whereby plaintiffs claim severe emotional distress and mental anguish from which they were caused to suffer bodily harm as the result of the reckless, conduct of the defendant?
II
Did the Court below err in granting the defendant’s motion for a directed verdict based on:
City of Anniston v. Rosser [275 Ala. 659], 158 So.2d 99 (1963)
Hunnicutt v. City of Tuscaloosa, 337 So.2d 346 (Ala.1976)
McCarroll v. Bessemer, 289 Ala. 449, 268 So.2d 731 (Ala.1972)

The record shows that the trial court gave a number of reasons for its decision to grant the defendant’s motion for a directed verdict. By delineating the issues above, the plaintiffs-appellants have limited our review to only two of those grounds, Piper Ice Cream Co. v. Midwest Dairy Products Corp., 279 Ala. 471, 187 So.2d 228 (1966), and, for the sake of clarity, we will consider them in inverse order.

II. Based upon the briefs and the record we believe that this issue deals with whether or not the plaintiffs have complied with the statutory notice requirements for claims against the City of Birmingham. The City maintains that the nonclaim statute was never complied with by the plaintiffs because the proof establishes that the “incident” occurred one day prior to the date stated in the claim.

The plaintiffs’ sworn claim stated:

On or about November 13, 1976, Gary Peddycoart was caused to be incarcerated in the Birmingham City Jail on a charge of reckless driving and carrying a concealed weapon. At approximately 11:00 p. m. on said date, we received notice of said incarceration of Gary Peddycoart. The telephone call was received from a police officer. We arrived at the City Jail at approximately 1:00 a. m. on or about the morning of November 14,1976, after having received the aforesaid call. Upon our arrival, we were told by an unknown officer at the desk ....

Thereafter the plaintiffs alleged that they were told by this officer that Gary Peddyc-oart (who in fact was alive) had committed suicide while in his jail cell. This incident, alleged to have occurred on November 14, 1976 was made a basis for plaintiffs’ tort action which was filed later and which we will discuss under I. The testimony of Vera, Floyd, and Gary Peddycoart established that the incident occurred on November 14. Paul Ray, the Peddycoarts’ son-in-law, testified on the other hand that the telephone call he received from Vera about Gary’s death occurred about five minutes until two o’clock on the morning of November 13. Vera’s other son, Allen Woellhardt, testified that on November 13 he was working from seven to three-thirty o’clock in the morning, and was notified of the incident by Paul around two o’clock (on November 14).

In addition to this testimony, the plaintiffs introduced the hospital emergency room record and the arrest report on Gary. The hospital report showed that an unknown white male had been brought from jail by ambulance and pronounced dead on arrival on November 13. The police department arrest report showed Gary Peddycoart “booked” at 2255 (10:55 p. m.) on November 12 and released on bond at 0400 (4:00 a. m.) on November 13.

Thus the defendant contends that while the plaintiffs gave notice of a claim which occurred “on or about November 14,” their proofs showed that the incident made the basis for their action occurred on the morning of November 13. According to the City’s argument, this amounts to no claim having been filed for the incident occurring on November 13, 1976. In support of this argument the defendant cites City of Anniston v. Rosser, 275 Ala. 659, 158 So.2d 99 (1963), and Benton v. City of Montgomery, 200 Ala. 97, 75 So. 473 (1917), for the proposition that a claim against a city must be filed for the injuries received on the date proved.

The pertinent statute, Tit. 62, § 659 (Code of 1975, § 1-1-10) Alabama Code of 1940 (Supp.1958) requires a sworn statement

[ sjtating substantially the manner in which the injury was received and the day and time and place where the accident occurred, and the damage claimed, and stating with substantial accuracy the nature and character of the injury received .... [Emphasis added.]

Under this requirement it is enough if the day on which the injury was received is stated substantially. The word “substantially,” as it is used in the first portion of § 659, without separation by punctuation, modifies not only the manner of the injury but the day, time and place where the accident occurred. Our authorities recognize that substantial compliance is sufficient, and we have given the section a liberal construction. Cole v. City of Birmingham, 243 Ala. 561, 11 So.2d 148 (1942). Thus the allegation in the claim that “on or about November 14” the incident occurred, was a sufficient notice of the day of the month on which the plaintiffs relied so as to give to the city authorities an ample opportunity to investigate the claimed occurrence and injuries.

We do not believe that either City of Anniston v. Rosser, supra, or Benton v. City of Montgomery, supra, requires a finding that there was a fatal variance between the claim filed here and the proof adduced to establish it. In Benton the plaintiff’s claim alleged that the injury occurred on December 18, and the undisputed proof showed that the injury occurred on December 17, one day earlier. This was held to be insufficient compliance with the nonclaim statute. And in Rosser, the plaintiff’s claim alleged that the accident occurred on June 11,1959, but all of the evidence showed that it occurred one day earlier, or on June 10, 1959. This too was held to be an improper presentation.

The situation here is different, however. In this case the plaintiffs have alleged in their claim an incident which occurred, not upon any one specified date, but “on or about November 14.” That phrase, as defined in Black’s Law Dictionary, 5th ed. at 982, is

[ u]sed in reciting the date of an occurrence ... to escape the necessity of being bound by the statement of an exact date....

Not being so bound, the plaintiffs could prove another date not substantially varying from the date actually alleged. In other words, the plaintiffs could have proved that the incident occurred on either November 13 or November 14 under their allegations. Therein lies another distinction between this case, on the one hand, and Ros-ser and Benton on the other. All of the proof in the latter cases established a different date from the specific date alleged. But in this case some of the plaintiffs’ proof established November 13 as the date of the incident, while some of plaintiffs’ proof established November 14 as that date. The hospital report and the police report, both introduced by plaintiffs, were not conclusive but at best only prima facie evidence that the incident occurred on November 13. Cf. Hurst v. Kirby, 213 Ala. 640, 105 So. 872 (1925); Sisson v. Swift, 243 Ala. 289, 9 So.2d 891 (1942); see generally 32 A C.J.S. Evidence § 766 at 59. The other evidence of the plaintiffs established the incident as having occurred on November 14, creating a factual issue, i. e., the true date of the incident, for the jury.. A directed verdict should not be given when the evidence is in conflict, whether the conflict is presented in testimony of the same witness, or that of several witnesses for the same party, or the different parties to the suit. M. Frank Sons & Co. v. Davis, 214 Ala. 601, 108 So. 575 (1926); see also Merchants Bank v. Cotton, 289 Ala. 606, 269 So.2d 875 (1972).

Accordingly, we have concluded that the trial court was in error in entertaining as one of its grounds for granting the directed verdict, that the notice provisions of the nonclaim statute were not met.

I. In American Road Insurance Company v. Inmon, Ala., [1980], 394 So.2d 361 (1980), this Court recognized the theory of the tort of “outrageous conduct” as described in Restatement (Second) of Torts, Section 46. In that case as in this, however, the facts adduced did not rise to the requirements of the law.

The plaintiffs’ action under Section 46 was based upon a bizarre incident which began at the Birmingham city jail. A young man named Gary Peddyeoart was incarcerated there on either the night of November 12 or November 13, 1976. (The exact date is disputed, and is the subject of our discussion under issue II.) Sometime during that evening the police sergeant assigned to handle inquiries at the jail learned that a young man had hanged himself in his cell. The sergeant pulled the file cards on three young men then in custody, one of whom was Gary Peddyeoart. In the early morning hours of the next day, Floyd and Vera Peddyeoart (Gary’s parents) and Charlotte Peddyeoart (Gary’s wife) arrived at the jail. Leaving Vera and Charlotte outside, Floyd went inside and inquired about his son. He was told by the sergeant that his son had attempted suicide (by hanging himself) and had been sent to a hospital. Floyd, Vera and Charlotte immediately drove to the hospital and, after waiting for about thirty minutes, were taken into a room where a doctor told them, “I’m sorry, I did everything I could.” A bag of clothes, with “Peddyeoart” written on it, was brought into the room, apparently sent from the jail. Vera told the nurse that these were not her son’s clothes. Shortly thereafter they were allowed to view the body of a man lying on a table. Charlotte kissed the man. When Vera saw blood on the sheet, she fainted. Recovered, she telephoned another son who subsequently arrived at the hospital with their son-in-law. Allen, the other son, after viewing the body, said to Vera, “Mom, that’s not Gary. He is too short. And the scars are not on him.” Vera and Floyd again viewed the body, and Floyd then returned to the jail where he found Gary alive. Floyd then effected Gary’s release from jail.

Thus Floyd Peddycoart was the only one of these plaintiffs to whom any city employee imparted any information and who had any direct contact with a city employee concerning Gary Peddycoart. Floyd relayed to Vera and Charlotte the message he had been given at the jail’s office. The evidence discloses that there was an interval of time of approximately one hour between the time Floyd received the erroneous information and the time when the mistake was known to them. While the plaintiffs doubtless did suffer some degree of emotional distress in that interval of time, under the principle they espouse that distress must have been caused by Birmingham’s “extreme and outrageous conduct” which “intentionally or recklessly” caused that distress. Restatement (Second) of Torts, § 46. Comment (d) thereof at 73 is instructive on the nature of the conduct contemplated:

Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. ...

Nothing is contained in the evidence to suggest that the police sergeant whose conduct precipitated the emotional responses did anything but commit a mistake. That is, there is no evidence that he intentionally or recklessly caused the distress which ensued. He has not been shown to have abused his position, or that he had any prior knowledge of the plaintiffs’ susceptibility to distress, or that he either had a desire to inflict it or knew that severe distress would probably result. Ibid, at 74, 75. The absence of any evidence establishing those elements justified the trial court’s action granting the defendant’s motion for a directed verdict on the outrageous conduct claim, Rule 50, ARCP; Chandler v. Hunter, Ala.Civ.App., 340 So.2d 818 (1976), even though the ground given by the trial court, that no cause of action for outrageous conduct existed, was erroneous. King v. Winslett, 287 Ala. 98, 248 So.2d 566 (1971). As was stated in King, supra at 287 Ala. 103, 248 So.2d 566:

Appellants can take nothing in consequence of an erroneous conclusion inducing the trial court to give the general affirmative instruction for appellee, if ap-pellee was otherwise entitled to such instruction ....

In summary, we have concluded that the plaintiffs did substantially comply with the notice requirements for their claim against the defendant municipality, but that the trial court was correct in granting the City’s motion for a directed verdict because there was a failure of proof of the cause of action made an issue on this appeal. For these reasons the judgment appealed from must be, and is, affirmed.

AFFIRMED.

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

      . The plaintiffs’ complaint contained a count charging negligence as well as counts charging fraud and intentional infliction of emotional distress. One of the grounds upon which the trial court granted the directed verdict was the failure of the evidence to support the negligence alleged. As we have noted, in their brief the plaintiffs do not complain of that action, but have limited the issues for our review to the two we have quoted from their brief.


author: LEIGH M. CLARK, Retired Circuit Judge.

text:
    Rufus C. COCKRELL v. STATE.
    3 Div. 184.
    Court of Criminal Appeals of Alabama.
    Oct. 7, 1980.
    Rehearing Denied Nov. 25, 1980.
    Rick A. Williams, Montgomery, for appellant.
    Charles A. Graddick, Atty. Gen., and George Hardesty, Jr., Sp. Asst. Atty. Gen., for appellee.
   LEIGH M. CLARK, Retired Circuit Judge.

A jury found defendant guilty under an indictment which alleged that he “did, unlawfully, wilfully and feloniously possess Diazepam contrary to the provisions of Act 1407, Section 401(a), Regular Session of the Legislature of Alabama, 1971.” The court fixed his punishment at imprisonment for four years and sentenced him accordingly.

Although diazepam was not expressly included as a controlled substance in the Alabama Uniform Controlled Substances Act (Acts 1971, No. 1407) at the time of its enactment, its possession was inhibited as of the time of the alleged commission of the crime, by reason of its having been theretofore listed by the Alabama Board of Health as such a substance in accordance with the authority conferred upon it by said Act. Such was the undisputed evidence in the case. Furthermore, the trial court charged the jury that it was a “controlled substance,” as it should have done in its duty to take judicial notice of the adoption and publication of reasonable rules and regulations of the Alabama Board of Health. Cassell v. State, 55 Ala.App. 502, 317 So.2d 348 (1975).

Officer T. R. Scarbrough of the Montgomery Police Department testified that at about 7:00 A.M. on July 24, 1979, he received a radio call instructing him and his partner to investigate a reported disturbance at 611 Cleveland Court. He made a prompt response to the call by going to the address and observing a man on the porch' whom he identified as the defendant. As the witness arrived, the defendant stepped off the porch and proceeded to walk away. While walking away, the defendant with his left arm in the direction of Officer Scarbrough put his right hand in the right front pocket of his pants and upon raising his hand from the pocket let drop a matchbox that fell on the ground about five or six inches from the defendant’s feet. According to further testimony of the witness, he reached over and picked up the box and opened it. In it he found nine yellow medicine tablets (pills).

The matchbox and seven of the pills were introduced in evidence after a chain of custody had been established. By the testimony of Criminalist Allen Raymond Adair of the Alabama Department of Forensic Sciences, they were identified as Valium, which the witness said contained diazepam. He said he made the determination of the existence of diazepam by an analysis of two of the tablets that were consumed in the process of his analysis.

Before Officer Scarbrough was allowed to testify as to the matchbox and its contents, there was a hearing out of the presence of the jury, of a motion of defendant to suppress evidence as to the contents of the matchbox and evidence of what defendant said in answer to a question addressed to him by Officer Scarbrough as to whether he had a prescription for the medicine in the box. At that hearing, there was a conflict between the evidence of Officer Scarbrough and the defendant in that Officer Scarbrough testified there was no actual or threatened violence to defendant and defendant testified that Officer Scar-brough, assisted by another officer, threw him on the ground, searched him, removed the pills from his person, and took him to the County Jail. The court overruled defendant’s motion to suppress evidence as to the contents of the matchbox but sustained defendant’s motion to suppress evidence of the question asked defendant and his answer that he did not have a prescription for the medicine. The court’s ruling in not suppressing the evidence as to the contents of the matchbox is not challenged on appeal. The ruling in suppressing evidence of the statement of defendant that he did not have a prescription for the Valium is not an issue on appeal, for the obvious reason that it was favorable to appellant. In passing, however, we should note the correctness of such ruling in that defendant had not been previously advised and warned as to his right to an attorney and his right not to be subjected to involuntary self-incrimination.

At the conclusion of the evidence for the State, the court denied defendant’s motion “to strike the State’s case.” At the conclusion of all the evidence, including the testimony of defendant, defendant renewed his motion “to strike the State’s evidence,” which the court also overruled. Said rulings are made the basis of an insistence of reversible error. Appellant says there was no substantial evidence of defendant’s guilt at the time the State rested its case and that there was no substantial evidence of defendant’s guilt at the conclusion of all the evidence. We consider each contention separately.

It is recognized by both parties on appeal that if this defendant had been given a prescription for the Valium that he had in his possession, there would not have been a violation of the Controlled Substances Act. At the time the State rested there had been no evidence pro or con as to whether a physician had given his prescription for the substance. It was not necessary, however, for the State to prove that there had been no prescription. The burden of bringing himself with any exception or exemption as to the statute was upon the defendant. Hall v. State, 291 Ala. 397, 287 So.2d 662 (1973); Knox v. State, 50 Ala.App. 494, 280 So.2d 200 (1973); Watkins v. State, 50 Ala.App. 111, 277 So.2d 385, cert. denied, 291 Ala. 801, 277 So.2d 389 (1973); Chesteen v. State, Ala.Cr.App., 365 So.2d 102, writ quashed, 365 So.2d 108 (1978). The court was correct in denying defendant’s motion “to strike the state’s case at the conclusion of State’s evidence.

The defendant testified that in 1974 Valium was prescribed for him while he was living in Lufkin, Texas. However, he did not claim the Valium he had in his pocket was prescribed for him. He said he obtained the particular Valium from an “elderly gentlemen” with whom he lived. He further testified that he was in bad physical condition and that he had gone to the apartment, where he was standing when the officers arrived, to get someone to drive him to a place where he could obtain medical treatment. Notwithstanding the natural sympathy for his physical condition and his apparently believed dependence upon the medicine he had in his pocket, he was not entitled as a matter of law to a favorable ruling on his motion to “strike the State’s evidence.”

During the cross-examination of Mr. Allen Adair, the following occurred:

“Q. Now that is a prescribed . .. that’s a legal drug that can be prescribed by a medical practitioner, is that right?
“A. Yes, sir.
“Q. Now you have been with the Department of Forensic Sciences and its predecessor for eight and a half years?
“A. Well almost eight years, not quite eight.
“Q. Isn’t it true that until recently this was not a controlled substance — valium.
“A. Up until—
“MS. BROOKS: Objection.
“THE COURT: Sustained.”

Appellant says that the ruling of the court was erroneous in that it did not permit “the appellant to fully cross-examine one of the State’s witnesses.” Appellant further states:

“That the jury should be apprised of the date the drug was included in the controlled substance law. This fact alone could explain the Appellant’s possession, and could have reasonably explained his innocence.”

If the witness had been allowed to answer the question, his correct answer would have been, “Up until July 2, 1975, it was not.” Assuming that a physician had prescribed Valium for defendant in 1974, it can be reasonably seen that defendant may not have had the requisite criminal intent for the commission of the crime by his mere possession of Valium if the possession thereof had first become a crime within a few days, weeks or months before July 24,1979. The same conclusion could hardly be reasonably reached, however, when, as here, there was an interval of approximately four years between the statutory proscription and the defendant’s commission of the crime. Moreover, the defendant in his testimony made it clear that he knew the nature of Valium and that he had taken some of the pills the day he was arrested. He was not substantially injured by the court’s sustention of the State’s objection to defendant’s question to Mr. Adair, “Isn’t it true that until recently this was not .a controlled substance-valium?”

During the direct examination of defendant, the following occurred:

“Q. Prior to the day that you were arrested on the 24th of July, 1979, when was the last time you had used any vali-um?
“MS. BROOKS: Objection.
“THE COURT: Sustained. Don’t answer that.”

Defendant argues that by the quoted action of the court it “denied the appellant his attempt to prove the legality of possession.” By analogy to what has been said herein in considering appellant’s contention that the trial court should have allowed defendant to show by Mr. Adair how long Valium had been a controlled substance, we are not convinced, in the light of all the circumstances shown by the evidence, that defendant’s answer to the question last quoted herein would have aided the defendant in any “attempt to prove the legality of the possession,” as now contended in appellant’s brief. However, our inability to agree with appellant’s contention in this respect is attended with some misgiving, which we now endeavor to explain.

Notwithstanding circumstantial evidence and testimony of defendant indicating that at the time of the alleged crime defendant knew the tablets in the matchbox in his pocket contained a controlled substance and that a jury question was presented as to his guilt, we are not certain that he was not so ignorant that he did not have the criminal intent essential to a valid conviction, that he did not have guilty knowledge of the nature of the drug. We do not hold that one is guilty of the willful and felonious possession of diazepam, as alleged in the indictment, merely by reason of his having a matchbox in the pocket of his pants containing nine tablets of Valium containing diazepam if there was credible evidence that defendant was utterly ignorant of the nature of the substance he possessed. It is clear that on July 2, 1975, the Alabama Board of Health added diazepam as a controlled substance under Schedule IV, pursuant to its authority under Section 20-2-20(a) of the Act. The record shows that defendant was about twenty-five years of age at the time of his arrest. He would have been about twenty years of age when, according to his testimony, he was prescribed Valium in Texas. Although the burden of proof was upon the State to establish defendant’s guilt by the evidence, including his guilty knowledge of his possession of a substance in the nature of a controlled substance, he should have been allowed adequate range to disprove it or to cast reasonable doubt upon it, if he could have done so, unless it was clear that he could not do so or that he was making no contention to that effect. Omitted from the transcript are the opening statements to the jury and the arguments to the jury of counsel for the respective parties. Whether any line was drawn between them on the particular point, we are unable to determine from the record before us. The record indicates, though it is not absolutely conclusive, that defendant was staking his case upon the hope or expectation that the evidence of the contents of the matchbox and their nature as a controlled substance would be suppressed, and that he was making no claim that he did not know the nature of the substance.

The indication is strengthened by the strong effort to suppress the evidence during the first part of the testimony of the first witness for the State and motion by defendant at the conclusion of all the evidence as follows: “I would like to renew my motion to strike the State’s evidence in view of the testimony of the Defendant that he was searched before he was placed under arrest and that the drugs were taken from him in violation of his Constitutional rights.”

As the trial court was cognizant of the contentions of the parties and was in a better position than we to determine whether answers to the questions to which the objections of the State were sustained would have been relevant to such contentions and would have been of any benefit to defendant, we must conclude therefrom when considered with all other circumstances shown by the transcript that they were not relevant and that the trial court was not in error in its rulings.

We find no error in the record prejudicial to defendant. 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 the Judges concur.

      . As certified by State Health Officer Ira L. Myers, M.D.


author: JONES, Justice.

text:
    Ex parte Rufus C. COCKRELL. (Re: Rufus C. Cockrell v. State of Alabama).
    80-164.
    Supreme Court of Alabama.
    Jan. 23, 1981.
   JONES, Justice.

WRIT DENIED — NO OPINION.

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


author: HOLMES, Judge. HOLMES, Judge.

text:
    LONG-LEWIS HARDWARE COMPANY v. Jerry L. LIGHTSEY.
    Civ. 2415.
    Court of Civil Appeals of Alabama.
    Oct. 29, 1980.
    Rehearing Denied Nov. 26, 1980.

      James B. Kierce, Jr., Stone, Patton & Kierce, Bessemer, for appellant.
    John R. Frawley, Jr., Birmingham, for appellee.
   HOLMES, Judge.

The plaintiff sued the defendant Long-Lewis Hardware Company for fraud in the sale of an automobile. The jury returned a $3,000 verdict in favor of the plaintiff.

The defendant appeals, contending the evidence does not support an award of punitive damages. We find that it does and affirm.

Viewing the record with the attendant presumption, the following is pertinently revealed: In October of 1977 the plaintiff purchased a four wheel drive truck from defendant. Plaintiff was told by defendant’s salesman that the truck was a demonstrator. Plaintiff subsequently discovered that the truck had been repossessed from a prior owner.

The record reveals that defendant-company knew the truck had been repossessed and that defendant represented the truck as a demonstrator by allowing one of its salesmen to use it as such and by marking the keys to the truck with a tag reading “DEMO.”

The salesman who told plaintiff the truck was a demonstrator testified that he did not know the truck had been repossessed at the time the truck was sold to plaintiff. This salesman also testified he had not been told by defendant that the truck has been repossessed.

Plaintiff testified that he might not have purchased the truck had he known of the repossession or that he would have offered less for it.

The case apparently went to the jury with the only damages question being whether plaintiff was entitled to punitive damages. As indicated above, a verdict in favor of plaintiff was returned by the jury. Defendant then moved for judgment notwithstanding the verdict or a new trial. These motions were denied.

At the outset, we note that a plaintiff in order to make out a prima facie case of fraud must show, among other things, that he has been damaged. This requirement, however, may be satisfied and nominal damages may be awarded if there is evidence of a breach of a legal duty and if there is evidence from which actual damages can be inferred. Shafer v. Timmons, 51 Ala.App. 157, 283 So.2d 609 (1973); Maring-Crawford Motor Co. v. Smith, 285 Ala. 477, 233 So.2d 484 (1970).

It has been the law of this state since 1846 that nominal damages are always proper when a breach of a legal duty has been made out and the extent of the injury is not shown by the evidence. Bagby v. Harris, 9 Ala. 173 (1846). In other words, in order to recover nominal damages for fraud the plaintiff need not show the exact extent of his damages, but only that he has been damaged. When the evidence furnishes sufficient date from which the amount of damages can be fixed, the plaintiff may recover compensatory damages. McDonald v. Amason, 39 Ala.App. 492, 104 So.2d 716, cert. stricken, 267 Ala. 654, 104 So.2d 719 (1958). The absence of such additional data does not, however, prevent the recovery of nominal damages. McDonald v. Amason, supra; Howard v. Taylor, 99 Ala. 450, 13 So. 121 (1892).

Here, there is evidence showing a breach of a legal duty. The truck was represented as something that it was not, i. e., a demonstrator rather than a repossessed truck. Shafer v. Timmons, supra. A “demonstrator” had been defined as an automobile owned by a dealer which is used to demonstrate the dealer’s line of automobiles to prospective buyers. Texas Lloyds v. Laird, Tex.Civ.App., 209 S.W.2d 937 (1948).

There is evidence from which the jury could infer actual damages. The plaintiff testified he had been told by defendant’s salesman that the truck was a demonstrator. He also testified that he saw the key tag identifying the truck as a demonstrator. The inference that could be gained from such testimony would be that the truck, because it was a demonstrator, was well taken care of by defendant. In fact, plaintiff testified that this was his belief. Also, plaintiff testified that if he had known the truck had been repossessed he would not have purchased it or that he would not have been willing to pay as much for it as he did. A reasonable inference from this testimony could be that plaintiff considered a repossessed truck to be of less value than a truck used as a demonstrator. We conclude that actual damages can be inferred from the evidence in this case entitling the plaintiff to nominal damages. See, Shafer v. Timmons, supra.

In an action for fraud an award of punitive damages may be based upon a showing of entitlement to nominal damages. Old Southern Life Insurance Co. v. Woodall, Ala., 348 So.2d 1377 (1977); Shafer v. Timmons, supra; Maring-Crawford Motor Co. v. Smith, supra. Punitive damages, in the jury’s discretion, may be awarded if there is evidence from which the jury can conclude that the fraud was malicious, oppressive or gross and the representations were made intentionally and with the knowledge of their falsity. Spartan Pools v. Royal, Ala., 386 So.2d 421 (1980); Royal Chevrolet Co. v. Kirkwood, Ala.Civ.App., 373 So.2d 858 (1979). The primary constituent of gross, malicious, and oppressive fraud is the intention to injure and deceive. Universal Brokers, Inc. v. Higdon, Ala.Civ.App., 320 So.2d 690 (1975). Put another way, if the evidence tends to establish an intent to deceive and defraud, it is difficult to see but that a fraud was committed grossly. Spartan Pools v. Royal, supra; Randell v. Banzhoff, Ala., 375 So.2d 445 (1979); Hall Motor Co. v. Furman, 285 Ala. 499, 234 So.2d 37 (1970).

In the instant case defendant knew the truck had been repossessed. Further, from defendant’s use of the truck as a demonstrator, from defendant’s marking the keys to the truck with a tag reading “DEMO”, and from defendant’s failure to tell its salesman that the truck had been repossessed, the jury could reasonably infer an intent to deceive and defraud. In other words, there is evidence from which the jury could conclude that the fraud was malicious, oppressive or gross and that the representation was made intentionally and with knowledge of its falsity.

Defendant also contends the trial court erred by refusing to give a requested written charge to the jury. The refused charge essentially said that the jury in order to return a verdict in favor of plaintiff had to find that plaintiff suffered damages as a proximate result of the alleged fraud.

It is well settled that the refusal of a requested charge which is covered in the trial court’s oral charge is not error. American Fire & Casualty Ins. Co. v. Bryan, Ala.Civ.App., 379 So.2d 605 (1979); Rule 51, ARCP. We find defendant’s requested charge to have been adequately covered by the trial court’s instruction that the plaintiff had the burden of proving that he suffered the damages and injuries that he complained of.

For the reasons set forth above, this case is due to be affirmed.

AFFIRMED.

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

ON REHEARING

HOLMES, Judge.

Able counsel for appellant Long-Lewis earnestly and strongly requests this court, among other things, to add the following facts to our original opinion: “Plaintiff purchased the truck for $5,700.01, drove it for four months and 6,000 miles, and then, when it was stolen, he was paid $5,900.00 for the truck by his theft insurer.” This request is granted.

This court would further note that counsel for appellant favored this court with an excellent brief on original submission and on application for rehearing.

OPINION EXTENDED; APPLICATION FOR REHEARING OVERRULED.

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

      . We state the above with full knowledge that the trial court charged the jury that the plaintiff could not be awarded any compensatory damages.


author: MADDOX, Justice.

text:
    Ex Parte LONG-LEWIS HARDWARE COMPANY. Re LONG-LEWIS HARDWARE COMPANY v. Jerry L. LIGHTSEY.
    80-163.
    Supreme Court of Alabama.
    Jan. 23, 1981.
   MADDOX, Justice.

WRIT DENIED — NO OPINION.

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