text:
    The ALABAMA STATE TENURE COMMISSION v. BOARD OF EDUCATION OF CITY OF DEMOPOLIS.
    Civ. 2139.
    Court of Civil Appeals of Alabama.
    March 26, 1980.
    Rehearing Denied April 23, 1980.

      J. L. Chestnut, Jr., of Chestnut, Sanders & Sanders, Selma, for appellant.
    Woodford W. Dinning, Jr., of Lloyd, Dinning & Boggs, Demopolis, for appellee.
   HOLMES, Judge.

This is a teacher tenure case.

The Board of Education of the City of Demopolis (the Board) notified the tenured teacher, Mrs. Wynell Gantt, that she would be transferred. After a hearing, the Board reaffirmed this decision. The Alabama State Tenure Commission (the Commission) reversed the transfer order. On writ of mandamus, the Circuit Court of Marengo County vacated the decision of the Commission and directed that it reconsider the case. The Commission, through able and distinguished counsel, appeals and we affirm.

The dispositive issue is the propriety of the Commission’s action in reversing the transfer order due to the Board’s failure to file a transcript with the Commission within twenty days of the hearing before the Board.

The record reveals the following: The Board notified the teacher that she was to be transferred from the position of counsel- or to that of English teacher. The reason given was the shutdown of the school’s counseling program due to a lack of funds. Despite the transfer, the teacher would continue her employment in the same school building and would continue receiving the same compensation.

The teacher requested a hearing before the Board and one was convened on June 9, 1979. However, when the teacher’s attorney failed to appear, the hearing was rescheduled for July 11. At the July hearing the Board reaffirmed its decision to consummate the proposed transfer.

On July 16,1979, the teacher duly appealed to the Commission. By letter dated July 18, 1979, the Commission informed the Board a hearing would be scheduled on the appeal as soon as nine copies of the transcript of the Board’s proceedings were received. Also, the Commission enclosed a copy of its “Rules of Procedure and Practice.” Nowhere in these rules was a time limit specified for the filing of the required copies of the transcript.

On July 31,1979, the Commission notified the parties that it had not yet received the copies. However, the Commission further informed the parties that a hearing had nevertheless been set for August 15, 1979.

On August 6, 1979, the Board responded, informing the Commission that the court reporter engaged to prepare the transcript had been unable to complete it due to a heavy work load. The Board requested further instructions.

The Commission held the hearing as scheduled on August 15, 1979. At this hearing, the Commission restricted its consideration to the procedural question of whether the Board should be granted an extension of time within which to file the transcript.

The Commission found that the Board had failed to either file the transcript or to request an extension of time within the period “apparently required by Sections 16-24-6, 16-24-7, and 16-24-10, Code of Alabama 1975.” Having reached this conclusion, the Commission reversed the transfer order entered by the Board.

The Board responded to the above by filing a petition for mandamus with the Circuit Court of Marengo County. The court found that the Alabama Teacher Tenure Act, §§ 16-24-1, et seq., Code of Ala. 1975, does not require the submission of a record to the Commission within any particular time when a teacher is to be transferred. The court also found that the Commission had not adopted any rules or regulations setting forth such a time limit.

The circuit court went on to conclude that, in the absence of either statutory mandate or applicable regulation, the action of the Commission was improper. Accordingly, the decision of the Commission was reversed and it was ordered to consider the entire record in reaching a further decision. As indicated, the Commission then appealed to this court.

At the outset, we note that the basis of the Commission’s finding that the Board “apparently” failed to comply with our teacher tenure law is § 16-24-10(b), Code of Ala.1975. This section, which applies when a tenured teacher’s contract has been cancelled, places an affirmative duty upon the employing Board, when there is an appeal to the Commission, to prepare copies of the record of proceedings before it and to deliver these to the Commission within twenty days from the date of the hearing. This court had held that when this requirement is not met in a cancellation case, it is within the Commission’s authority to strike the tardily filed transcript and to reverse the Board’s decision. Washington County Bd. of Ed. v. Ala. State Tenure Commission, Ala.Civ.App., 364 So.2d 338 (1978).

However, we have also held that § 16-24-10 controls only when a teacher’s contract has been cancelled, and that § 16-24-7 is the applicable appeals statute when the teacher is to be transferred. Therefore, the two procedures cannot be used interchangeably and the one does not control the other. See, Lamar County Bd. of Ed. v. Steedley, 45 Ala.App. 672, 236 So.2d 337 (1970). Indeed, while this court has recently acknowledged that the cancellation statutes and the transfer statutes both show “the same pervasive legislative concern for brevity,” Ala. State Tenure Commission v. Bd. of School Commissioners of Mobile County, Ala.Civ.App., 378 So.2d 1142, 1144 (1979), we have also continued to underscore the different time frames involved, reaffirming that when one statute applies, the other does not. Schneider v. Mobile County Bd. of School Commissioners, Ala. Civ.App., 378 So.2d 1119 (1979).

Section 16-24-7, the transfer appeals statute at hand, provides in pertinent part:

A teacher on continuing service status shall have the right to appeal within 15 days after the decision of the employing board to the state tenure commission, . . Such appeal shall be heard not less than 10 days nor more than 40 days after such notice of appeal is filed with the commission . . . Such teacher shall have a right to appear with or without counsel and shall have a right to present argument to the commission based on the record of the proceedings before the employing board. The action of the state tenure commission shall be final and conclusive in determining all questions relative to said transfer and shall be based on the record of the proceedings before the said board and the evidences as recorded at such hearing.

It is at once apparent that although § 16-24-7 contemplates the presence of a record before the Commission as it deliberates on the transfer, this section lacks the clear and compelling mandate of § 16-24-10 that “. . . the board shall cause to be made sufficient copies of the record [which] . . . shall be delivered to the commission and to the teacher within 20 days from the date of the hearing.”

It only follows that, under the facts at bar, the Commission lacked the statutory authority we found present in Washington County Bd. of Ed., supra, to reverse the Board’s decision for failure to prepare and file the transcript within twenty days.

It is now well established that although the judgment of the Commission is final, it may be reversed by the circuit court on review by mandamus if the Commission has either failed to comply with the Tenure Act’s procedural requirements or has rendered a judgment so contrary to the weight of the evidence as to be unjust. Sumter County Bd. of Ed. v. Ala. State Tenure Commission, Ala., 352 So.2d 1137 (1977); Ala. State Tenure Commission v. Bd. of School Commissioners of Mobile County, supra. Suffice it to say that where, as here, the Commission has impermissibly engraft-ed the requirements of § 16-24-10, a cancellation statute, onto § 16-24-7, the transfer statute involved in this case, the circuit court was justified in concluding the Commission had failed to comply with the procedural requirements of the Tenure Act.

This court is not unaware of the practical consequences of this decision. Lest we be misunderstood, let us reiterate what we are saying, and (perhaps more importantly) not saying today. Our decision is simply that, in the absence of an applicable general rule or regulation by the Commission, or a direct order from that body, the Commission is without authority to reverse the employing board for failure to file a transcript within twenty days of the hearing before the Board. We are not ruling, as the question is not before us, that the Commission is powerless to cure the acknowledged deficiency of § 16-24-7 as applies to the time in which the transcript must be filed, through exercise of its powers under § 16-24-35, which allows it to adopt such “rules, regulations, and orders as may be reasonably necessary to carry out its functions.” Neither are we necessarily saying that the Commission was without authority to order that the transcript be filed by a date certain, provided the order allowed a reasonable time for compliance.

This case is due to be affirmed.

AFFIRMED.

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


source: Caselaw Access Project

author: BEATTY, Justice.

license: Public Domain

text:
    Ex parte ALABAMA STATE TENURE COMMISSION. In re The ALABAMA STATE TENURE COMMISSION v. BOARD OF EDUCATION OF CITY OF DEMOPOLIS
    79-558.
    Supreme Court of Alabama.
    June 27, 1980.
   BEATTY, Justice.

WRIT DENIED — NO OPINION.

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


author: WRIGHT, Presiding Judge.

text:
    ALABAMA FARM BUREAU MUTUAL CASUALTY INSURANCE CO. v. Carl B. WILLIAMS and Cecil L. Williams, d/b/a Williams Produce Co.
    Civ. 2164.
    Court of Civil Appeals of Alabama.
    May 14, 1980.
    Rehearing Denied June 11, 1980.
    L. Merrill Shirley, Elba, for appellant.
    Elisha C. Poole, Greenville, for appellees.
   WRIGHT, Presiding Judge.

This is a suit on an insurance policy.

Carl D. Williams and Cecil L. Williams, d/b/a Williams Produce Co. (hereafter Williams) filed suit against Alabama Farm Bureau Mutual Casualty Insurance Co. (hereafter Farm Bureau) seeking indemnification for damage to an automobile covered under a fleet policy which Williams carried with Farm Bureau. Farm Bureau answered denying coverage on the grounds that the automobile involved in the accident was being driven at the time of the accident by Eligha Palmer and that Eligha Palmer had been expressly excluded from coverage under the policy.

The case was tried to a jury on October 9, 1979. The jury found for Williams and judgment for $5,500 was entered against Farm Bureau. Farm Bureau’s motion for Judgment N.O.V. or for New Trial was denied and Farm Bureau appeals.

The insurance policy provided fleet coverage for several automobiles owned and operated by Williams. The policy carried one special endorsement, a Named Driver Exclusion of Eligha Palmer, which had been added to the policy on March 25,1975. This exclusion was accepted by Williams at the instance of Farm Bureau after Palmer was involved in an accident in December 1974. The principal issue at trial was whether Farm Bureau had waived the exclusion.

Farm Bureau contends on appeal that the doctrine of waiver has no application under the evidence in this case and the trial court erred in refusing to direct a verdict for Farm Bureau based on the named driver exclusion. We agree and reverse.

The Named Driver Exclusion Endorsement upon which Farm Bureau relies reads as follows:

Subject to all other terms and conditions of the policy to which this endorsement is attached it is understood and agreed by and between the Company and the Named Assured that as part of the consideration for the issuance or continuance of this policy in addition to the premium charged, it is hereby understood and agreed that the policy to which this endorsement is attached shall not be in force and effect while any motor vehicle which would be covered by this policy is being operated by Eligha Palmer.

There was evidence of the following: Shortly after the first accident by Palmer in 1974, a Farm Bureau adjuster told Carl Williams that Palmer would probably be excluded from coverage. The adjuster further stated that Palmer could be resubmitted for coverage in two and one-half to three years but that he would not be automatically reinstated.

At the time the exclusion was executed, Wanda Williams, an officer of Williams, was told by a Farm Bureau agent that Palmer could be resubmitted for coverage in two and one-half to three years. He did not guarantee reinstatement.

Approximately two and one-half years later Wanda Williams submitted to the local Farm Bureau office a list of drivers employed by Williams. The list included Eligha Palmer.

In April 1978 a second list of drivers was submitted to the local Farm Bureau office, again including Eligha Palmer. Palmer had an accident while driving Williams’ truck on September 5, 1978.

Williams contended at trial and on appeal that these facts, when added to the fact that the cover sheet or declaration issued by Farm Bureau when the policy was renewed in 1978 failed to indicate the driver exclusion, amounted to a waiver by Farm Bureau of the named driver exclusion covering Eli-gha Palmer.

This contention runs directly into the law in this state that coverage under an insurance policy cannot be created or enlarged by waiver or estoppel. Inland Mutual Insurance Company v. Hightower, 274 Ala. 52, 145 So.2d 422 (1962); Home Insurance Co. of New York v. Campbell Motor Co., 227 Ala. 499, 150 So. 486 (1933). As recently as March 7, 1980, our supreme court in the case of Home Indemnity Company v. Reed Equipment Company, 381 So.2d 45 (Ala.1980) said:

Although the doctrine of waiver may extend to practically every ground on which an insurer may deny liability based on forfeiture, the doctrine is not available to bring within the coverage of a policy risks not covered by its terms or risks expressly excluded therefrom. (Citation omitted.) Thus, coverage under an insurance policy cannot be created or enlarged by waiver or estoppel and, if there is no ambiguity, it is the duty of the court to enforce the policy as written.

Clearly the express exclusion of Palmer as a driver from the provisions of the policy pertains to coverage and not forfeiture. Coverage is claimed by plaintiff through waiver. The exclusion is clear as well as a requirement in the policy for express written removal. There appears no ambiguity. The court should have given the exclusion effect by directing a verdict in favor of defendant as requested. Failing that, defendant’s motion for judgment N.O.V. was due to have been granted. Due to the error, the judgment is reversed and the case remanded to the trial court for entry of judgment notwithstanding the verdict.

Other issues presented on appeal are pre-termitted.

REVERSED AND REMANDED.

BRADLEY and HOLMES, JJ., concur.


text:
    Henry PITTS, Mary Pitts and surety Betty C. Donald v. Terry HENLEY and Henley & Craft Sporting Goods, Inc., a corp., Joseph S. Knight and Anne Knight.
    Civ. 2121.
    Court of Civil Appeals of Alabama.
    June 4, 1980.

      Joseph W. McDowell, of Pitts, Pitts & Thompson, Selma, for appellants.
    Tommy Yearout, of Lorant, Harris & Yearout, Birmingham, for appellees.
   WRIGHT, Presiding Judge.

This is an appeal from the trial court’s denial of appellant’s 60(b) motion for relief from summary judgment in favor of the appellees.

The evidence shows that on October 29, 1976 Pro-Way Sporting Goods (Pro-Way), an unregistered trade style of Stabler-Pitts & Associates, Ltd., executed a $34,000 promissory note to the Central Bank of Montgomery, Alabama (Central Bank). The note was signed on behalf of the partnership by Joseph S. Knight and Henry Pitts. The purpose of the loan was to purchase the assets of Henley & Craft Sporting Goods, Inc. (Henley & Craft). The $34,000 represented Pro-Way’s assumption of a $25,000 indebtedness of Henley & Craft to Central Bank and an additional $9,000 which Pro-Way had agreed to pay to Henley & Craft for the assets of the sporting goods business.

According to the uncontroverted affidavit of Terry Henley, one of the owners and operators of Henley & Craft, it was understood that weekly payments were to be made to the bank to satisfy the $25,000 indebtedness, after which the remaining $9,000 would be paid to the bank for the benefit of Henley & Craft.

In addition to the note executed by Pro-Way, Central Bank required Joseph S. Knight, Anne Knight, Henry Pitts and Mary Pitts to execute continuing guaranties of Pro-Way’s indebtedness.

In December 1976 Pro-Way defaulted on the loan. After satisfying the $25,000 indebtedness from the proceeds received from a public sale of the assets and from accounts receivable assigned to it by Pro-Way, Central Bank assigned to Henley & Craft the promissory note and continuing guaranties executed by Pro-Way, the Knights and the Pitts as well as the uncollected accounts receivable.

When the accounts receivable were exhausted, Henley & Craft attempted to collect the remaining balance from the Knights and the Pitts based on their guaranties of Pro-Way’s debts. They refused to pay and this suit was filed in Jefferson County District Court.

The Knights filed an answer denying the allegations of the complaint and asserting a cross claim against Henry Pitts based on misrepresentation and written and verbal indemnity agreements.

The Pitts filed a motion to dismiss which was denied. They then filed an answer denying the allegations of the complaint and asserting a counterclaim against Henley & Craft. The counterclaim was dismissed for lack of jurisdiction and the district court entered judgment in favor of Henley & Craft in the amount of $3,255.02. The defendants appealed to Jefferson County Circuit Court.

Thereafter the plaintiffs filed a motion for summary judgment on their complaint which they supported by Henley’s affidavit and copies of the note and guaranties. The Knights filed a motion for summary judgment on their cross claim against Pitts supported by a copy of their indemnity agreement.

A hearing was set for May 25, 1979, at which time the trial court entered summary judgment for $3,255.02 against the defendants in favor of Henley & Craft and against Henry Pitts in favor of the Knights.

On July 6, 1979, the Pitts filed a motion for relief from summary judgment on the grounds of mistake, inadvertence or excusable neglect pursuant to Rule 60(b), ARCP. The basis for the motion was that counsel for the Pitts was mistakenly informed by his secretary that the hearing had been continued so that he was not present to contest the motions for summary judgment.

The trial court denied the motion on October 5, 1979, and the Pitts appeal.

The Pitts first argue that the trial court should have granted the 60(b) motion because the judgment was entered in violation of § 5-19-11, Code of Alabama (1975).

Section 5-19-11 has been held to contain definite prohibitions against both the creditor and the court in an action by a creditor to collect on a debt. The section prohibits the creditor from bringing suit unless he files an affidavit stating that there has not been a violation of the provisions of Title 5, Chapter 19 (the Mini-Code) and that the debtor is a resident of the county in which the suit is filed. The court is prohibited from entering judgment in the suit until such an affidavit is filed. Welch v. G.F.C. Credit Corp., 336 So.2d 1346 (Ala.Civ.App.1976). The section provides that if a violation exists or if the debtor is not a resident of the county in which suit is filed, the suit shall be abated. § 5-19-11, Code of Alabama (1975).

Where the trial court enters judgment in violation of § 5-19-11, the appropriate remedy is an appeal of the judgment. This court and the Alabama Supreme Court have held that a Rule 60(b) motion may not be used as a substitute for appeal. Pace v. Jordan, 348 So.2d 1061 (Ala.Civ.App.1977); cert. denied, 348 So.2d 1065 (Ala.1977).

The issue of violation of § 5-19-11 is not properly before this court. We therefore do not decide whether suit by an assignee, not otherwise subject to the Mini-Code would be subject to the requirements of § 5-19-11.

We would point out that the transaction involved in this case was not a consumer credit transaction. The face of the note and security agreement show it to be a business transaction not subject to § 5-19-11 of the Mini-Code. Sherrill v. Frank Morris Pontiac-Buick-GMC, Inc., 366 So.2d 251 (Ala.1976).

Pitts next argues that the trial court erred in refusing to grant relief from the summary judgment on the basis of mistake or excusable neglect.

The granting or refusal of a motion for relief from judgment under Rule 60(b)(1) is a matter within the discretion of the trial court and will be reversed on appeal only for abuse of that discretion. Modernage Homes v. Wooldridge, 55 Ala.App. 68, 313 So.2d 190 (1975). In exercising its discretion the court must balance the desire to remedy injustice against the need for finality of judgments. Tichansky v. Tichansky, 54 Ala.App. 209, 307 So.2d 20 (1974), cert. denied, 293 Ala. 775, 307 So.2d 24 (1975).

In determining whether there was an abuse of discretion in denying a motion under Rule 60(b), the reviewing court looks to the grounds presented and matters presented in support of the motion. Marsh v. Marsh, 338 So.2d 422 (Ala.Civ.App.1976).

The ground for the Pitts’ motion was that their counsel had failed to appear to contest the motions for summary judgment because of the mistake or excusable neglect of his secretary. Generally the failure of a defendant or his counsel to appear at the time set for disposing of a case does not entitle him to relief from judgment, although it may in the discretion of the court be considered good cause for relief. Ex parte Cox, 253 Ala. 647, 46 So.2d 417 (1950); Brock v. South & North Alabama Railroad Co., 65 Ala. 79 (1880).

The record on appeal presents no evidence, by testimony or otherwise, in support of the Pitts’ motion for relief from judgment. There is no showing as to the evidence, if any, which their attorney would have presented in opposition to the motions for summary judgment. Although the motion alleges meritorious defenses to the action, there is no proof of these defenses either by affidavit or testimony. There is nothing before us to support a review of the judgment of the trial court. Modernage Homes v. Wooldridge, supra.

On this record we cannot say that the trial court’s denial of the Pitts’ 60(b) motion was an abuse of discretion and the judgment is affirmed.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


author: HOLMES, Judge.

text:
    Birdie Lee MOORE v. UNITED STATES PIPE & FOUNDRY COMPANY and Provident Life & Accident Insurance Company.
    Civ. 2145.
    Court of Civil Appeals of Alabama.
    June 4, 1980.

      Donald W. Davis of Phillips & Davis, Birmingham, for appellant.
    John R. Chiles of Bradley, Arant, Rose & White, Birmingham, for appellee United States Pipe and Foundry Co.
    Clifford M. Spencer, Jr. of Pritchard, McCall, Jones, Spencer & O’Kelley, Birmingham, for appellee Provident Life and Accident Insurance Co.
   HOLMES, Judge.

The plaintiff sued the defendants for breach of contract and negligence as a result of the lapse of a contract of life insurance under which the plaintiff was beneficiary. The trial court granted a summary judgment in favor of both defendants and the plaintiff appeals. We affirm.

The dispositive issue is whether the plaintiff’s cause of action is barred by the statute of limitations.

A review of the record reveals the following:

The plaintiff’s deceased husband worked at the defendant-employer’s plant. In the summer of 1968 he was granted a retirement for total disability.

At the time of the deceased’s retirement a collective bargaining agreement existed under which life insurance would be continued on behalf of the deceased for as long as he remained totally disabled as long as proofs of disability were furnished as required by the insurance policy.

The insurance policy in pertinent part is as follows:

If any insured Employee whose active employment terminates because of total disability beginning before his sixtieth birthday, submits to the Home Office of the Insurance Company due proof of such total disability and that it has continued without interruption for a period of not less than nine months and still exists, the Insurance Company will endorse his certificate acknowledging the existence at that time of such disability, but only if such proof be received during the Employee’s lifetime and within one year after termination of active employment. After endorsement of any Employee’s certificate as described above, if he submits annually thereafter . . . due proof that total disability has continued without interruption the Insurance Company will pay to the beneficiary of record the amount of the Employee’s life insurance in force at the time of termination of active employment.

After the death of the plaintiff’s husband, the plaintiff attempted to collect the insurance benefits. The defendant-insurance company disallowed the claim, stating that it had never received annual proofs of the deceased’s continuing total disability and that the insurance coverage lapsed on January 5, 1970.

Subsequently, the plaintiff filed suit alleging that the defendant-employer breached the collective bargaining contract or in the alternative committed negligence in allowing the insurance coverage to lapse. Put another way, it is the plaintiff’s contention that the defendant-employer undertook to furnish the proofs of disability, as required under the insurance policy, thus creating an agency relationship between itself and the defendant-insurance company.

In answer to the plaintiff’s complaint, the defendants pled the statute of limitations.

We note that pursuant to § 6-2-34, Code of Ala.1975, an action on a contract, such as is alleged here, must be brought within six years. In addition, an action for negligence, as alleged here, must be brought within one year pursuant to § 6-2-39, Code of Ala.1975.

The above statutory periods begin to run at the time when a plaintiff can file its complaint. That is, the statutes begin running from the time the cause of action accrues. Henslee v. Merritt, 263 Ala. 266, 82 So.2d 212 (1955); Esslinger v. Spragins, 236 Ala. 508, 183 So. 401 (1938).

In a contract action, the cause of action accrues from the date the contract is breached. Lipscomb v. Tucker, 294 Ala. 246, 314 So.2d 840 (1975).

In a negligence claim, the cause of action accrues as soon as the plaintiff is entitled to maintain an action thereon regardless of whether the full amount of damages is apparent at the time of the first legal injury. Home Insurance Co. v. Stuart-McCorkle, Inc., 291 Ala. 601, 285 So.2d 468 (1973).

The plaintiff contends that her causes of action did not accrue until the event insured against occurred. Stated differently, the plaintiff contends that November 27, 1977, the date of the death of her husband, was the earliest date at which her causes of action accrued.

However, the plaintiff, through able counsel, does not cite, nor are we aware of any authority which so holds.

In this instance, we find that the alleged contract was breached, if breached at all, when the insurance coverage lapsed, which, as indicated above, was January 5, 1970. This is because the plaintiff’s claim of breach is based upon the above mentioned collective bargaining agreement pursuant to which the plaintiff alleges the defendant-employer undertook to furnish proofs of continuing disability. This alleged agreement to furnish proofs and keep the insurance in effect could only have been breached under the facts in this instance when the defendant failed to furnish such proofs, resulting in the lapse of the policy.

That is, the breach occurred, if one occurred at all, when the defendant failed to perform its alleged undertaking under the contract. The date of the insured’s death was simply the date on which the plaintiff would have been entitled to the proceeds of the policy but for the prior alleged breach by the defendant. Thus, the contract action claim accrued on January 5,1970. See, Meyerson v. New Idea Hosiery Co., 217 Ala. 153, 115 So. 94 (1927). See also, Brown v. Wilson & Co., 230 F.2d 280 (7th Cir. 1956); Lewis v. Security-First Nat. Bank of Los Angeles, 58 Cal.App.2d 827, 137 P.2d 864 (1943).

In addition, we find that the plaintiff suffered legal injury, if at all, on the same date in regards to the negligence action. This is because when the policy lapsed, the plaintiff lost a substantial interest as the named beneficiary in the proceeds of the policy. If the negligence of the defendant-employer caused the policy to lapse then the date of the lapse is when the plaintiff’s cause of action accrued. Thus, on January 5, 1970, when the policy lapsed, the plaintiff had a cause of action for negligence on the part of the defendants in allowing the policy to terminate. See, Meyerson, supra.

It only follows that any cause of action against the insurance company as the alleged principal of the defendant-employer likewise accrued on January 5, 1970. As indicated, the plaintiff’s loss occurred when the policy lapsed and was therefore canceled, not on the date of the insured’s death.

Therefore, under any theory espoused by the plaintiff against either defendant, her cause of action accrued on January 5, 1970.

In this instance, the plaintiff filed her action in May of 1978. Thus, her action was filed after the time limitations, as indicated above, had expired. Therefore, the trial court did not err in granting the defendants’ motions for summary judgment.

The fact that the plaintiff in this instance may be a third party beneficiary does not alter the date of the accrual of the actions because the rights of third parties, for whose benefit a promise is made, are affected with all the infirmities of the contract as between the parties thereto. Mey-erson, supra. We think this same reasoning applies to a claim of negligence based upon an agreement. Thus, the plaintiff in this instance is subject to the same statute of limitations as her deceased husband.

Thus, having decided that the statute of limitations bars the plaintiff’s recovery, we need not address other issues presented for review.

This case is due to be affirmed.

AFFIRMED.

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


author: BRADLEY, Judge.

text:
    SUNNYLAND MOBILE HOMES, INC. v. Wade THOMPSON.
    Civ. 2190.
    Court of Civil Appeals of Alabama.
    June 4, 1980.

      E. E. Ball of Owen & Ball, Bay Minette, for appellant.
    C. Lenoir Thompson, Bay Minette, for appellee.
   BRADLEY, Judge.

The plaintiff, Wade Thompson, sued to recover $600 paid to the defendant, Sunny-land Mobile Homes.

On January 8, 1979 the plaintiff and his wife went to the defendant’s place of business to look into the possibility of buying a mobile home. The plaintiff testified that he and his wife examined a number of trailers and found one to their liking. The plaintiff’s wife wrote the defendant a check for $600 as a down payment. There is no evidence in the record indicating there was any written agreement.

Subsequently, on January 12, 1979, the plaintiff refused to sign a written contract to purchase the mobile home. The plaintiff testified that he refused to sign the contract because the sales price on the contract was different from the sales price listed on the door of the mobile home on the day the down payment was made. The plaintiff requested that the defendant return the $600.00 down payment, but the defendant refused. It is the defendant’s position that a valid parol contract was completed on January 8, 1979, and that the plaintiff breached this agreement. The defendant also contends that any difference in the sales price on the contract and on the door of the mobile home was due to finance charges. The trial court, sitting without a jury, found for the plaintiff and rendered judgment in his favor for $462.00.

The dispositive issue on this appeal is whether there was a parol contract between the parties.

No binding contract can come into being until there is a meeting of minds. Christian v. Rabren, 290 Ala. 45, 273 So.2d 459 (1973). The evidence on this issue is conflicting. It is the duty of the trier of fact to resolve that conflict. Clayton v. Simpson, Ala.Civ.App., 346 So.2d 457 (1977). It is not our prerogative to substitute our judgment for that of the trier of fact. McPherson v. Everett, 277 Ala. 519, 172 So.2d 784 (1965). The evidence shows that plaintiff considered the selling price of the mobile home to be one amount and the defendant considered the selling price to be a different amount. Consequently, there was no agreement as to the selling price of the mobile home and the trial court so found.

Even if some type of an agreement did come into existence upon payment of the $600.00, we still do not believe that a valid contract was formed. In Coley v. Lang, Ala.Civ.App., 339 So.2d 70 (1976), we found the following language in Elmore, Quillian & Co. v. Parrish Brothers, 170 Ala. 499, 54 So. 203 (1911), to be persuasive:

“[A]n agreement to enter into an agreement upon terms to be afterwards settled between the parties, is a contradiction in terms, and amounts to nothing.”

Had an oral agreement been made by the parties upon payment of the $600.00, at most it would have been an agreement to enter into a future agreement based on terms not then finally determined which, as the above cited case points out, is nothing. Thus we consider the trial court’s holding that no valid oral agreement had been made to be correct.

The plaintiff has also argued that he should be entitled to the return of the full $600.00 down payment and not just the $462.00 awarded him by the trial court. However plaintiff did not cross-appeal and the trial court’s judgment must remain unchanged. Therefore we affirm the trial court’s judgment.

AFFIRMED.

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


text:
    Charles L. McCOY and wife, Marlene Walker McCoy v. John David GARREN and wife, Barbara Ann Garren.
    Civ. 2277.
    Court of Civil Appeals of Alabama.
    June 4, 1980.
    Thomas L. Rountree, Oneonta, for appellants.
    Bishop K. Walker, Jr., of Nash & Walker, Oneonta, for appellees.
   BRADLEY, Judge.

Charles L. McCoy and wife, Marlene Walker McCoy, defendants below, appeal from an order of the circuit court dismissing their appeal from a probate court condemnation order. We affirm.

John David Garren and wife, Barbara Ann Garren, plaintiffs below, filed an application for condemnation of certain lands allegedly owned by defendants for a private right-of-way in the Probate Court of Blount County on February 7,1978. After a hearing the probate court granted plaintiffs’ petition for condemnation on September 22, 1978. On October 20, 1978 the probate court appointed three commissioners to assess the damages and compensation due defendants for the lands taken from them. The commissioners’ first report was rejected by the probate court, but their second report was filed in and accepted by the probate court on October 28, 1978.

On November 8, 1978 defendants filed notice of appeal to the Circuit Court of Blount County. However, the probate court did not issue its order of condemnation based on the commissioners’ report until November 27, 1978.

On January 8, 1980 plaintiffs filed a motion in the circuit court asking that defendants’ appeal be dismissed. On February 1, 1980 the circuit court dismissed the appeal on the ground that it had been prematurely filed in that court. On February 5, 1980 defendants asked for relief from judgment or, in the alternative, a reconsideration of its order. The circuit court denied the motion on March 11, 1980 on the ground that the appeal had not been perfected according to law and the court therefore was without jurisdiction to consider the merits of the appeal.

The dispositive issue is whether the circuit court properly dismissed defendants’ appeal from the probate court.

Section 18-1-11, Code of Alabama 1975, provides:

On the day appointed, or any other day to which the hearing may be continued, the court must hear the allegations of the application, any objections which may be filed to the granting thereof and any legal evidence touching the same and shall make an order granting or refusing the application.

Section 18-1-19, Code of Alabama 1975, provides in pertinent part:

The commissioners must, within 20 days from their appointment, make a report in writing to the court stating the amount of damages and compensation ascertained and assessed by them . and thereupon the court must order the same to be recorded and must make orders of condemnation in pursuance thereof .

Section 18-1-20, Code of Alabama 1975, provides in pertinent part:

Any of the parties may appeal from the order of condemnation to the circuit court of the county within 30 days after the making of the order of condemnation by filing in the court rendering the judgment a written notice of appeal .

Defendants argue that the September 22, 1978 probate court order was the. proper order to trigger the running of the statutory period for taking an appeal to the circuit court. The plaintiffs counter by saying the November 27, 1978 order was the proper order from which to appeal to the circuit court, not the September 22, 1978 order.

Appeals are of statutory origin, and, unless so provided, no appeal will lie. Johnson v. Barnes, 250 Ala. 292, 34 So.2d 144 (1948). No appeal from the preliminary order of condemnation is provided for in § 18-1-11. Although at one time this section of the Code did permit appeals from the preliminary order of condemnation, the Code section no longer permits such an appeal. Williams v. Jefferson County, 261 Ala. 76, 72 So.2d 920 (1954).

Section 18-1-20, Code of Alabama 1975 is the only provision in the Code authorizing appeals from condemnation orders entered by probate courts. State v. Pettis, 275 Ala. 450, 156 So.2d 137 (1963). Therefore, the probate court order of November 27, 1978, not the September 22, 1978 order, was the order that triggered the running of the thirty day appeal period for appeals to the circuit court. Consequently defendants’ notice of appeal, which was filed on November 8, 1978, was filed before the order of condemnation from which an appeal could be taken. The result is a premature taking of the appeal.

Defendants’ failure to perfect their appeal in accordance with § 18-1-20 deprives the circuit court of jurisdiction to hear the appeal. Stanton v. Monroe County, 261 Ala. 61, 72 So.2d 854 (1954). Not having jurisdiction to hear defendants’ appeal, the circuit court properly dismissed it. State v. King, 271 Ala. 16, 122 So.2d 158 (1960). The judgment of the trial court is affirmed.

AFFIRMED.

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


text:
    Randall Wayne ZIMMERMAN v. Melvin D. GIBBS and Ruth Gibbs.
    Civ. 2278.
    Court of Civil Appeals of Alabama.
    June 4, 1980.
    Wyman O. Gilmore of Gilmore & Keahey, Grove Hill, for appellant.
    Thomas H. Boggs, Jr. of Lloyd, Dinning & Boggs, Demopolis, for appellee.
   HOLMES, Judge.

This is a child custody case.

The trial court awarded custody of a four year old female child to the maternal grandparents. The father appeals, contending the trial court erred in failing to award custody to the father. We find no error in the trial court’s award of custody and affirm.

We do not deem it necessary to set out in detail the facts of this case. However, viewing the record with the attendant presumptions accorded the trial court’s decree, the following is revealed.

The mother and father of the child were married at an early age. The father had resided in the home of the maternal grandparents since he was fourteen years old. While residing with the maternal grandparents, the father married the daughter of the maternal grandparents. The union produced the child involved in this appeal. Thereafter, the father had difficulty in “holding” a job. There is testimony that a lot of the father’s time was spent in the pool hall. In any event, since the birth of the child the maternal grandparents have to a large degree supported the child and cared for the child.

In 1977, when the child was approximately two years old, the mother and father divorced. The mother was awarded custody. Apparently, after the divorce, the father had little contact with the child. Additionally, the father did not pay the required support payments. During this period of time, the maternal grandparents greatly assisted in caring for the child.

In March of 1979, the mother was killed in an automobile accident. The child has been with the maternal grandparents since that time. In April of 1979, the maternal grandparents petitioned the trial court for custody. The father cross-petitioned for custody.

The maternal grandfather is forty-four years of age. The maternal grandmother is forty years of age. They have raised four children who are now grown. They have a home and are well respected in their community. The maternal grandfather is gainfully employed. The father is now in the U.S. Air Force stationed in Florida. He lives in an apartment complex with his seventeen year old bride. The record indicates he loves the child and desires custody.

As indicated above, the trial court specifically determined that at this time the best interest of the child dictated that she remain with the maternal grandparents. The father was awarded reasonable visitation.

The predominant factor in cases of this nature is what is in the best interest and welfare of the child. Parsons v. Parsons, Ala.App., 337 So.2d 765 (1976); Esco v. Esco, 51 Ala.App. 656, 288 So.2d 444 (1973), and cases cited therein. Furthermore, there is a strong presumption favoring the trial court’s finding in cases of this nature. See, 2A Ala.Digest Appeal & Error @=>931(1).

Additionally, in this case as in all cases where the judgment or decree is entered by the trial court after hearing of testimony ore tenus, such judgment or decree is presumed correct and will be reversed on appeal only if, after consideration of the evidence and all reasonable inferences to be drawn therefrom, the judgment or decree is found to be plainly and palpably wrong. Killingsworth v. Killingsworth, 284 Ala. 524, 226 So.2d 308 (1969); Harrison v. Harrison, 279 Ala. 675, 189 So.2d 471 (1966). We cannot find the trial court’s decree so wrong.

In this instance, in view of the facts as indicated above, we cannot say the trial court was plainly and palpably wrong in awarding custody to the maternal grandparents. We recognize that the trial court did not find the father to be unfit. However, it is not the fitness or unfitness of a parent that is solely determinative of who should have custody. What is determinative is the best interest and welfare of the child.

The case is due to be affirmed.

AFFIRMED.

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


text:
    Millard L. HILLYER v. CENTRAL REVIEW BOARD FOR DEPARTMENT OF SOCIAL SERVICES, Kilby Corrections Facility; Mr. William Sankey of Central Review Board; Mr. Robert Fox of Central Review Board.
    Civ. 2127.
    Court of Civil Appeals of Alabama.
    June 11, 1980.
    Millard L. Hillyar, pro se.
    Charles A. Graddick, Atty. Gen., Lynda F. Knight, Asst. Atty. Gen., for appellees.
   HOLMES, Judge.

The plaintiff sued the defendants seeking to recover compensatory damages. The trial court granted the defendants’ motion to dismiss for failure to state a claim upon which relief could be granted. The plaintiff pro se appeals and we affirm.

The dispositive issue is whether the plaintiff’s attempted action constituted a suit against the State of Alabama.

The record discloses the following relevant facts: Plaintiff is a prisoner who is presently incarcerated at Kilby Corrections Facility. The defendants are the Central Review Board for the Department of Social Services and Kilby Corrections Facility, agencies of the State of Alabama, and two employees of the Central Review Board.

Beginning July 10, 1978, plaintiff did clerical work in the prison hospital under the direction of the nursing supervisor. Plaintiff contends that for a period of approximately one year he performed these duties working 12 to 16 hours per day, seven days per week. Allegedly, the inducement for performing these services was the promise of certain prison employees that he would receive a partial commutation of his sentence. This is to say, plaintiff claims he was promised incentive good time credit for the period in which he performed these clerical duties.

Several applications for a good time reduction of his sentence for this time period were made and each was denied. However, plaintiff was apparently finally awarded good time credit effective November 29, 1979.

Plaintiff brought suit seeking compensatory damages for the time spent working in the prison hospital. Having been denied a partial commutation of his sentence for performing these duties, plaintiff seeks as damages an amount equal to the salaries of the two persons he claims were subsequently hired to do the work he had previously been assigned.

At the outset, we note that suits against the state are prohibited by § 14 of the Alabama Constitution of 1901 which provides: “That the State of Alabama shall never be made a defendant in any court of law or equity.”

Accordingly, it has been held that the circuit court is without jurisdiction to entertain a suit against the state and that such a suit must be dismissed when the court becomes convinced that § 14 has been violated. Aland v. Graham, 287 Ala. 226, 250 So.2d 677 (1971).

Furthermore, the prohibition contained in § 14 cannot be avoided by suing a state agency when the substance and effect is a suit against the state. Boaz Nursing Home, Inc. v. Recovery Inns of America, Inc., 289 Ala. 144, 266 So.2d 588 (1972). Likewise, § 14 prohibits actions brought against the state's officers or agents in their official capacity when a result favorable to the plaintiff would directly affect a contract or property right of the state. Aland v. Graham, supra.

In determining whether an action against a state agency or officer is in violation of the constitutional prohibition, the court considers the nature of the suit or the relief demanded. State v. Norman Tobacco Co., 273 Ala. 420, 142 So.2d 873 (1962).

Looking to the facts of the instant suit, plaintiff is seeking an award of monetary damages from a state agency and/or from its agents who were acting in their official capacity in denying him the desired good time credit. Therefore, the substance and effect of the action is a suit against the state as a result favorable to the plaintiff would directly affect a property right of the state, namely, its money. See, Boaz Nursing Home, Inc. v. Recovery Inns of America, Inc., supra.

The suit being against the state, the learned and distinguished trial judge was correct in granting the defendants’ motion to dismiss.

This case is due to be affirmed.

AFFIRMED.

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


text:
    Charlene Atkinson EDISON v. Clinton J. EDISON.
    Civ. 2203.
    Court of Civil Appeals of Alabama.
    June 11, 1980.

      John Ben Jones, III, Lanett, for appellant.
    No brief for appellee.
   EDWARD N. SCRUGGS, Retired Circuit Judge.

The issue presented for our decision is whether the trial court failed to award a sufficient amount for the support of the minor child of the parties.

In this divorce action the trial judge heard the evidence. There was testimony of the earnings, debts, monthly expenses, past and present financial condition, and some history of employment and spending practices of both of the parties. The needs of their four year old child were enumerated. Evidence was presented that, in another case, the defendant became obligated to support his two minor children mothered by one other than the plaintiff. There was further testimony that the father earns approximately $900 per month. The circuit court rendered a divorce, awarded custody of the child to the plaintiff, and ordered the defendant to pay to the plaintiff as child support $25.00 per month for the first six month period, $50.00 per month for the second six month period, and, thereafter, $25.00 per week. The plaintiff appeals, contending that such award for the support of the child is grossly inadequate.

Since the trial judge personally heard the evidence presented by each side, we are permitted to disturb his decision only if the amount of the award was so unsupported by the evidence as to be unjust and palpably wrong. Fuller v. Fuller, Ala. Civ.App., 368 So.2d 30 (1979); Murphree v. Murphree, Ala.Civ.App., 366 So.2d 1132 (1979); Morrow v. Morrow, Ala.Civ.App., 351 So.2d 923 (1977); Pruett v. Pruett, Ala.Civ.App., 333 So.2d 580 (1976).

The test of determining the reasonableness of an award for child support has at least two facets. The needs of the children and the ability of the father to pay. Barber v. Barber, 51 Ala.App. 448, 286 So.2d 852, cert. den., 291 Ala. 772, 286 So.2d 857. It is seldom that the first is met or exceeded by the latter. Such result is one of the unfortunate consequences of divorce. If the ability of the father to pay is so exceeded that he is unable to meet his own cost of self maintenance without sinking into insolvency, the best interests of the children are not served. The equities of each must be weighed by the court. We find the judgment of the trial court to have reasonably balanced the equities within its discretion according to the evidence.

Pruett v. Pruett, supra.

We have studiously read, reread and compared all of the evidence in this case and have weighed the equities herein, but we cannot reach the conclusion that the child support award was unjust and palpably wrong. Therefore, the trial court’s judgment should not be disturbed. We affirm.

Request for an attorney’s fee on appeal is denied.

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

AFFIRMED.

All the judges concur.


text:
    Billy Ronnie CLARK v. Jackie Nell CLARK.
    Civ. 2210.
    Court of Civil Appeals of Alabama.
    June 11, 1980.
    Joel Robinson of O’Rear, Robinson & Nelson, Jasper, for appellant.
    Edward R. Jackson of Tweedy, Jackson & Beech, Jasper, for appellee.
   EDWARD N. SCRUGGS, Retired Circuit Judge.

This is a divorce case. The only contested matter for our decision involves the sufficiency of the evidence to prove that the parties had such a complete incompatibility of temperament that they could no longer live together. Accordingly, our decision, and the recital of facts herein shall respond only to such question.

The plaintiff filed her complaint seeking a divorce, alleging incompatibility. The defendant was personally served with a copy thereof, but he did not plead to the complaint. In due time the clerk entered a default judgment. The judge rendered the divorce judgment upon the plaintiff’s written testimony which was as follows pertaining to the ground of divorce:

I separated from him May 2,1979 because there was a complete incompatibility of temperament, our life styles differed, our interests differed, there was discord in the home and there has been an irretrievable breakdown of our marriage relationship.

The defendant moved to set aside the judgment on the ground that such evidence of incompatibility was insufficient as a matter of law to warrant the court to grant a divorce. The motion of the defendant was denied by the trial judge, hence this appeal.

One of the grounds of divorce in Alabama is “for adultery.” Section 30-2-l(a)(2), Code of Alabama (1975). If the only evidence is that the parties separated because the defendant “committed adultery,” the evidence is insufficient because it merely states a conclusion, and a judgment of a lower court dismissing the complaint will be affirmed on appeal. Wakefield v. Wakefield, 217 Ala. 517, 116 So. 685 (1928).

Where the divorce evidence merely tracked the language of the cruelty statute, it is insufficient, being a mere conclusion. Burdette v. Burdette, 245 Ala. 26, 15 So.2d 727 (1943).

Incompatibility of temperament as a ground for a divorce is stated as follows:

Upon application of either the husband or wife, when the court is satisfied from all the testimony in the case that there exists such a complete incompatibility of temperament that the parties can no longer live together. § 30-2-l(a)(7), Code of Alabama (1975).

In applying Wakefield and Burdette to the incompatibility statute, evidence would be insufficient if it merely followed the language of the quoted code section; however, the evidence in the case at bar went further and we must test it against the few eases construing § 30-2-l(a)(7).

Where a divorce is sought on the basis of incompatibility of temperament, the primary question is whether conflicts and difficulties between the parties are so deep and irreconcilable that it is impossible for the parties to continue a normal marriage relationship. Helton v. Helton, 362 So.2d 257 (Ala.Civ.App.1978); Phillips v. Phillips, 49 Ala.App. 514, 274 So.2d 71 (1973); 24 Am.Jur.2d 323; 58 A.L.R.2d 1218. The inquiry is as to the suitability of spouses for each other as shown by the reality of their married life. Gamble v. Gamble, 53 Ala.App. 168, 298 So.2d 254 (1974). If the state of incompatibility is declared by either party to exist and the evidence, either objective or subjective, supports the existence of such a state, the court must grant a divorce. Kegley v. Kegley, 355 So.2d 1121 (Ala.Civ.App.1977).

In addition to the conclusionary tracking of the statute, the plaintiff testified that she “separated from him” on account of the incompatibility and her testimony included certain factual conclusions that “our life styles differed,” or “our interests differed,” “there was discord in the home” and “there has been an irretrievable breakdown of our marriage relationship.” Such factual conclusions are over and beyond the stark statutory conclusions which are condemned. In considering the evidence as a whole, and all reasonable and proper inferences therefrom, the testimony of the plaintiff is sufficient to prove the ground for a divorce. While the testimony is not a paragon of clarity, such proof does meet the “bare bone” tests of adequacy as established by prior decisions.

The decision and judgment of the circuit court is affirmed.

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

AFFIRMED.

All the Judges concur.


text:
    The AMERICAN NATIONAL BANK & TRUST COMPANY OF MOBILE, a National Banking Association v. James E. ROBERTSON.
    Civ. 2068-X.
    Court of Civil Appeals of Alabama.
    June 18, 1980.
    James W. Tarlton, III and John W. Donald, Jr., of Hamilton, Butler, Riddick, Tarl-ton & Allen, Mobile, for appellant.
    Wilson M. Hawkins, Jr., Mobile, for ap-pellee.
   BRADLEY, Judge.

Defendant, American National Bank & Trust Company of Mobile, appeals from a jury verdict in favor of the plaintiff for a 1976 Ford van or its alternate value of $5,500, from the denial of its motion for directed verdict on its counterclaim, and from the denial of its request for judgment n. o. v., or, in the alternative, a new trial.

The plaintiff, James E. Robertson, executed an installment note and security agreement to the defendant bank, wherein the bank was granted a security interest in a 1976 Ford E100 van. The installment note provided for thirty-six monthly payments of $140.27 to be paid beginning on May 1, 1976.

The note and security agreement also contained a “future advance clause” which provided:

In order to secure the payment of this note, and any and every extension or renewal thereof, and all other liabilities and indebtedness of Borrower to Holder, now existing or hereafter incurred or arising, direct or indirect, and however incurred, whether joint, several, absolute, contingent, matured, unmatured, liquidated or unliquidated (the “Obligations”), and the compliance with all of the stipulations herein contained, Borrower does hereby transfer, sell, assign and convey to Holder, its successors and assigns, the following described Collateral and a security interest therein, to-wit:
1976 Ford E 100 Van Serial 7B E04BHB67358 7B 00268750

Subsequently, on November 29, 1976, the plaintiff executed a ninety day note in the amount of $2,000 to the defendant bank. The plaintiff defaulted on this note and defendant filed a suit on June 28, 1977 to recover the face amount of the note plus interest.

On July 11, 1977 the plaintiff’s van was repossessed by the defendant bank. After discovering that the defendant had repossessed the van, the plaintiff filed suit for conversion of the Ford van. The defendant filed a counterclaim for the balance owed on the first installment note. The defendant filed a motion for a directed verdict on its counterclaim at the close of all the evidence. The trial court denied the motion and the jury found for the plaintiff. This appeal followed.

There was a great deal of testimony during the trial of the case at bar concerning whether the plaintiff was in default on the first installment note. The plaintiff’s former wife tendered the payments for the months of June and July on July 11, 1977. The defendant argues that the payments were late and that the plaintiff was therefore in default. The plaintiff contends that he was not in default because the defendant had previously accepted late payments, and that the defendant repossessed the van after the late payments for June and July had been tendered.

The defendant also argues that even if the plaintiff was not in default on the first note, the second note was in default and the future advance clause in the first note made the van collateral for the second note. Therefore we think the dispositive issue as to plaintiff’s action becomes not whether the plaintiff was in default on the first note, but whether the future advance clause contained in the first note was effective to authorize repossession of the van based on the default of the second note. That is, did this clause require that the plaintiff’s van be security for the second note. The clause provided that the plaintiff’s van was given to secure payment of the first note as well as “all other liabilities and indebtedness now existing or hereafter incurred” by the plaintiff to the defendant. If this clause was valid, the plaintiff’s van was security for the second note, and upon the plaintiff’s default on the second note, title and right to possession of the van passed to the defendant.

Our cases have held that to sustain an allegation of conversion, the plaintiff must be able to show legal title and immediate right to possession of the property in question. Automotive Acceptance Corp. v. Powell, 45 Ala.App. 596, 234 So.2d 593 (1970). Upon a debtor’s default, title and right of possession pass to the creditor, and the creditor may repossess the property by self-help. Rainey v. Ford Motor Credit Co., 294 Ala. 139, 313 So.2d 179 (1975); § 7-9-503, Code of Alabama 1975.

We think it evident under the cases cited above that if the future advance clause was valid, the plaintiff could not recover for conversion since he was undis-putedly in default on the second note.

The Uniform Commercial Code, Code of Alabama 1975 § 7-9-204(5) gives effect to future advance clauses and provides:

(5) Obligations covered by a security agreement may include future advances or other value whether or not the advances or value are given pursuant to commitment.

There are no Alabama cases upholding the enforcement of a future advance clause similar to the one in the instant case since the adoption of the UCC. However, courts in other jurisdictions have given effect to such clauses. In re Public Leasing Corp., 488 F.2d 1369 (10th Cir. 1973); Hancock County Bank v. American Fletcher National Bank & Trust Co., 150 Ind.App. 513, 276 N.E.2d 580 (1971); In re White Plumbing & Heating Co., 6 UCC Rep. 467 (E.D.Tenn.1969); In re Glawe, 6 UCC Rep. 876 (E.D.Wis.1969).

Prior to the advent of the UCC, our supreme court said the following concerning the enforceability of a future advance clause contained in a mortgage:

But it is now the settled law of Alabama, and throughout this country, that clear and express provisions extending the security to other existing indebtedness or to future indebtedness between the same parties are given full effect. Indeed, it is held on high authority, that in many cases it would be a great hardship if this rule did not obtain as regards future indebtedness incurred or assumed by the mortgagor. For example, a bank customer, having occasion in his business operations, to obtain frequent loans, may thus avoid the necessity of giving repeated mortgages.

First National Bank v. Bain, 237 Ala. 580, 188 So. 64 (1939). While we are aware that Bain involved a mortgage and not a security agreement, we think the principle still is a sound one, particularly in light of the statutory recognition of future advance clauses in the UCC. Therefore we hold that the future advance clause in the first note executed by the plaintiff was valid and enforceable, and the plaintiff’s van was security for the second note, thus enabling the defendant to repossess the vehicle upon the plaintiff’s default without converting the vehicle. Accordingly, the trial court erred in refusing defendant’s motion for directed verdict as to plaintiff’s complaint.

The defendant has also appealed the trial court’s denial of its counterclaim for the balance owed by the plaintiff on the first note which totals $3,226.21. The defendant asserts that the plaintiff’s default on the second note enabled the defendant to accelerate the first note and declare it in default. The pertinent terms of the first note and security agreement provide that:

The maturity date hereof and that of each of the other Obligations (as hereinafter defined) is subject to acceleration upon the occurrence of certain events, as more particularly set forth below. .
In the event of . the failure of any maker, endorser, surety or guarantor hereof (the Obligors) to pay when due or perform any of the Obligations (as hereinafter defined) or any part thereof or the failure of any Obligor to pay when due any other liability to Holder, . or on the happening of any one or more of said events of default, Holder shall have the right at its election and without notice to any Obligor to declare the Obligations immediately due and payable with interest to date .
BORROWER HEREBY FURTHER WARRANTS, REPRESENTS AND AGREES THAT:
(8) Upon the happening of any one or more of the following events, each of which shall constitute a default hereunder, all unpaid amounts represented by all Obligations shall immediately become due and payable, with interest to date (b) Failure of any Obligor to perform any other agreement hereunder;

The plaintiff has argued that a default of the second note cannot be considered a default of the first note because he was unaware that such a provision was contained in the first note.

It is well settled that one who signs an instrument, even though he is ignorant of its contents, is bound by its terms in the absence of fraud, misrepresentation or deceit, Broadway v. Household Finance Corp., Ala.Civ.App., 351 So.2d 1373, cert. den., Ala., 351 So.2d 1378 (1977), and there is no evidence of fraud, deceit or misrepresentation in the making of the agreement. Furthermore, a security agreement is effective according to its terms. Code of Alabama 1975, § 7-9-201; Waters v. Union Bank of Repton, Ala., 370 So.2d 957 (1979).

We think the previously quoted language of the first note and security agreement clearly provided that upon the failure of the plaintiff to pay the second note, the defendant had the right to accelerate the first note without notice. See Fulton National Bank v. Horn, 239 Ga. 648, 238 S.E.2d 358 (1977). Thereafter, when the plaintiff did not pay the entire indebtedness, i. e. the first and second notes, the defendant was entitled to repossess the vehicle and attempt to collect the balance due on both loans.

The evidence shows that the repossessed vehicle was sold and a request made of the trial court to apply the proceeds of the sale to the satisfaction of the second note with any remainder to be applied to the reduction of the first note.

Based on the foregoing, we think the trial court erred in failing to give judgment to defendant on its counterclaim for the amount unpaid on the first installment.

Plaintiff appeals the trial court’s order striking his amended complaint, which sought damages for defendant’s failure to dispose of the collateral in accordance with the pertinent provisions of the Uniform Commercial Code. Plaintiff says the court erred in not allowing him to allege and present evidence of defendant’s actions after repossession of the vehicle. He contends that defendant violated the default provisions of the UCC and therefore he is entitled to damages under § 7-9-507(1), Code of Alabama 1975.

In his original complaint, plaintiff sought in one count damages for the conversion of the vehicle and in another count recovery of the property in specie, or, in the alternative, its value at time of seizure. About fifteen months after repossession of the vehicle, defendant moved the court for permission to sell it and apply the proceeds to the satisfaction of the $2,000 note that was in default and the balance, if any, to the satisfaction of the first note. Shortly thereafter, plaintiff requested permission to amend his complaint to request damages for defendant’s failure to properly dispose of the repossessed property.

Defendant moved to strike the amendment on the ground that the original complaint and the proposed amendment requested inconsistent relief. The trial court initially denied the motion to strike the amendment but subsequently reconsidered and struck it. Plaintiff appeals from that order.

We find no error in the trial court’s order for two reasons: one, the original complaint and the proposed amendment did ask for inconsistent relief and, second, the disposition of the collateral was carried out pursuant to a court order and, when so done, is considered commercially reasonable. When so considered, a party is not entitled to damages under § 7-9-507(1).

The relief sought in the original complaint and the amendment thereto was inconsistent because the original complaint sought not only damages for conversion but also sought the return of the collateral in specie. The amendment sought damages for defendant’s failure to promptly and properly dispose of the collateral so as to minimize any loss that plaintiff might suffer. Such a request asks in one breath that the collateral be returned if the court so orders, which envisions retention by defendant until that time, and in the next breath asks for damages for the failure of defendant to sell the collateral.

It is quite obvious that defendant could not return the collateral in specie if it had been sold. Accordingly, plaintiff must pursue one or the other of the two possible remedies available to him, not both at the same time.

Prior to the filing of the amendment to the complaint on November 3, 1978, the court had ordered the sale of the collateral to prevent further depreciation, and the vehicle was sold on December 29, 1978.

The UCC provides that if the sale of repossessed collateral is carried out pursuant to a court order, the sale is conclusively deemed to be commercially reasonable. Section 7-9-507(2), Code of Alabama 1975. And, when the sale is carried out in accordance with § 7-9-507(2), the plaintiff would not be entitled to damages under § 7-9-507(1). Thus the trial court acted properly in striking plaintiff’s amendment to the original complaint.

For the reasons above stated, the judgment of the trial court rendered in favor of plaintiff and against defendant on plaintiff’s complaint and defendant’s counterclaim is reversed. The judgment striking plaintiff’s amendment to his original complaint is affirmed. The cause is remanded for entry of judgment not inconsistent with this opinion.

AFFIRMED IN PART; REVERSED IN PART AND REMANDED WITH INSTRUCTIONS.

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


text:
    Rebecca Yvonne DAVIS v. Thomas Etheredge AMMONS.
    Civ. 2171.
    Court of Civil Appeals of Alabama.
    June 18, 1980.
    Henry B. Steagall, III of Steagall & Adams, Ozark, for appellant.
    Charles L. Woods of Woods & Corbitt, Ozark, for appellee.
   WRIGHT, Presiding Judge.

This is a child custody case.

The parties were divorced on February 10,1976. The decree by agreement granted custody of the parties’ minor child to the mother, ordered the father to pay child support and reserved visitation rights to the father.

In October 1978 the mother voluntarily transferred custody of the child to the father. She subsequently married again and lived for a time in Texas. On June 14, 1979, the father filed a petition to award permanent custody of the child to him. The child was then four years old.

After an ore tenus hearing the trial court granted the father’s petition. The mother appeals.

The mother raises two issues on appeal. She contends that the so-called “tender years doctrine” establishes in the mother a legal right to custody of a child of tender years which can only be taken away upon a showing that she is unfit. We have previously answered this contention in Jenkins v. Jenkins, 376 So.2d 1099 (Ala.Civ.App.1979); cert. denied, 376 So.2d 1101 (Ala.1979). We see no need to repeat what we said there.

Alternatively, the mother argues that the father failed to meet his burden of showing a change in circumstances since the divorce decree which affects the welfare of the child. The trial judge heard the testimony in this case orally. He viewed the parties on the stand and in the courtroom. Where this is the case, the judgment of the trial court is presumed correct and will be reversed on appeal only where so unsupported by the evidence as to be plainly wrong and unjust. Stewart v. Grace, 360 So.2d 1032 (Ala.Civ.App.1978).

We have carefully reviewed the record in this case and we cannot say that the trial court was plainly wrong in its finding that the interests of the child will be best served by placing custody in the father.

We find our statements in Jenkins and Stewart dispositive of this case. The trial court’s judgment is affirmed.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


text:
    DOVER MILLS, INC. v. Bonnie Day GARRETT.
    Civ. 2181.
    Court of Civil Appeals of Alabama.
    June 18, 1980.
    Jack Livingston and Gerald R. Paulk, Scottsboro, for appellant.
    W. M. Beck, Sr. of Beck & Beck, Fort Payne, for appellee.
   EDWARD N. SCRUGGS, Retired Circuit Judge.

This is a workmen’s compensation case.

In substance, the complaint averred that, because of the inhalation for three and one-half years of lint created by the machine which she operated for defendant, the plaintiff suffered from “industrial” pneu-moconiosis and pulmonary insufficiency. The proof for both parties was directed towards such averments.

Both the pleadings and the proof were expressly based upon § 25-5-140, et seq., Code of Ala.1975. In § 25-5-140, occupational pneumoconiosis is defined as follows:

(1) Occupational Pneumoconiosis. A disease of the lungs caused by inhalation of minute particles of dust over a period of time, which dust is due to causes and conditions arising out of and in the course of the employment, without regard to whether or not said causes or conditions are inherent in the employment or can be eliminated or reduced by due care on the part of the employer. The term “occupational pneumoconiosis” shall include, but without limitation, such diseases as silicosis, siderosis, anthracosis, anthrasilicosis, anthracosilicosis, anthraco-tuberculosis, tubérculo-silicosis, silico-tuberculosis, alu-minosis and other diseases of the lungs resulting from causes enumerated in this section.
(2) Contraction of the Disease of Occupational Pneumoconiosis. Such term shall include any aggravation of such disease without regard to the employment in which the disease was contracted.

However, the trial judge awarded compensation to the plaintiff under § 25-5-110, et seq., which ascribes the meaning of “occupational disease” in this manner:

(1) Occupational Disease. A disease arising out of and in the course of employment, other than occupational pneu-moconiosis and occupational exposure to radiation as defined in articles 5 and 7, respectively, of this chapter, which is due to hazards in excess of those ordinarily incident to employment in general and is peculiar to the occupation in which the employee is engaged but without regard to negligence or fault, if any, of the employer. A disease (including, but not limited to, loss of hearing due to noise) shall be deemed an occupational disease only if caused by a hazard recognized as peculiar to a particular trade, process, occupation or employment as a direct result of exposure over a period of time to the normal working conditions of such trade, process, occupation or employment. The term “occupational disease” shall not include accidents within the meaning of articles 3, 5 and 7 of this chapter.
(2) Contraction of an Occupational Disease. Such term shall include any aggravation of such disease without regard to the employment in which the disease was contracted. (Emphasis supplied.)

The trial judge expressly found that hazards in the plaintiff’s work “aggravated a lung disease” resulting in disability to the plaintiff. Since the pleadings and all of the evidence were directed towards whether or not the plaintiff suffered from a disease or diseases of the lungs caused by inhalation of minute, particles of lint or dust over a period of time, or the aggravation of a disease resulting from such causes; and since § 25-5-140, et seq., is all comprehensive and exclusive (except as to coal mines) as to compensation for such diseases, or the aggravation of such diseases, so caused; and because § 25-5-110 expressly excludes occupational pneumoconiosis (as defined in the above quoted statute) from the very definition of occupational disease, we are of the opinion that the learned trial judge was in error to award compensation to the plaintiff under § 25-5-110, et seq..

We, therefore, must reverse this case and remand it to the circuit court for that court’s decision as to whether or not the plaintiff suffered from occupational pneu-moconiosis as defined by § 25-5-140, et seq. The necessary elements in order to recover compensation under such code sections are outlined and enumerated in Nason v. Jones, 278 Ala. 532, 179 So.2d 281 (1965).

There were other issues raised which do not need our decision since this case must be reversed on the above ground. However, we respectfully suggest that, regardless of what it might be, the future judgment of the lower court on remand be specific as to its “statement of the law and facts and conclusions as determined” by the learned circuit judge. § 25-5-88, Code of Ala.1975; Alabama Textile Products Corp. v. Grantham, 263 Ala. 179, 82 So.2d 204 (1955).

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

REVERSED AND REMANDED.

All the Judges concur.


text:
    ELEVEN AUTOMOBILES; specifically One 1972 Buick Automobile, Motor No. 4523908H222133, License No. Alabama BEJ 752, Michael McGuire, 2741 The Meadows Apartments, Montgomery, Alabama, as owner of the vehicle v. STATE of Alabama, ex rel. Charles A. GRADDICK, Attorney General of The State of Alabama and James H. Evans, District Attorney of the 15th Judicial Circuit of Alabama.
    Civ. 2200.
    Court of Civil Appeals of Alabama.
    June 18, 1980.

      Frank L. Thiemonge, III, Montgomery, for appellant.
    Charles A. Graddick, Atty. Gen., and Jimmy L. DeBardelaben, Asst. Atty. Gen., for appellee.
   HOLMES, Judge.

This is an appeal by the alleged owner of an automobile from a condemnation proceeding. After an ore terms hearing the trial court forfeited the automobile to the State of Alabama. The alleged owner appeals and we affirm.

The dispositive issues are (1) whether the trial court erred in determining that the defendant was the owner of the vehicle and (2) whether due process was denied the defendant because of the lapse of time between the seizure of the automobile and the trial court’s order of condemnation.

A review of the record reveals the following:

The defendant was arrested in connection with the sale of controlled substances. The defendant was driving the above mentioned vehicle, a 1972 Buick automobile, when he was arrested.

The automobile was confiscated in February, 1979. Approximately one month later the state petitioned to have the vehicle condemned pursuant to § 20-2-93, Code of Ala.1975. In November, 1979, a hearing was held and, as indicated above, the trial court ordered the automobile forfeited to the state.

The defendant, through able counsel, contends that the trial court erred in finding that the defendant was the owner of the vehicle.

At the outset, we note that when a case is heard orally before the trial court sitting without a jury, the trial court’s findings are presumed correct unless shown to be clearly contrary to the great weight of the evidence. Department of Industrial Relations v. Lynch, Ala.Civ.App., 370 So.2d 1050 (1979).

In this instance, the defendant admits that the defendant’s mother “sold” the automobile to the defendant for $500. However, through affidavits made by the defendant and the defendant’s mother, the defendant contends that only $200 was ever paid to the defendant’s mother and that the defendant thus “abandoned his contract” and the defendant’s mother still owns the vehicle. The defendant further contends that title to the vehicle is in the defendant’s mother’s name and that title was never transferred from the defendant’s mother to the defendant pursuant to § 32-8-44, Code of Ala.1975. Thus, the defendant contends that title remained in the defendant’s mother and that condemnation of the vehicle was error because the defendant was not the owner of the automobile.

It is undisputed that the defendant was driving the vehicle when the controlled substances violation occurred. There is also evidence that the defendant used this automobile on another occasion to make an illegal controlled substances transaction. As indicated above, the defendant admitted having bought the automobile from his mother. In addition, there is evidence that the defendant indicated, at least inferentially, to the law enforcement officers that the automobile was his property.

We note that neither the defendant nor the defendant’s mother testified concerning the ownership of the vehicle, nor is there any documentary evidence in the record to corroborate the affidavits of the defendant and the defendant’s mother that the defendant “abandoned the contract.”

The undisputed fact of a “sale” of the vehicle to the defendant, the defendant’s control and dominion of the vehicle, as indicated above, and the lack of any evidence to support the contention that the defendant was not the owner of the automobile is sufficient to support the trial court’s finding in this instance that the defendant was the owner of the automobile. Winstead v. State, Ala.Civ.App., 375 So.2d 1207, cert. denied, Ala., 375 So.2d 1209 (1979).

The contention, as indicated above, that § 32-8-44 was not complied with regarding transfer of title, is without merit, in this instance, because the vehicle in question was a 1972 automobile. Section 32-8-44 is applicable only to 1975 or later model vehicles. See, § 32-8-30, Code of Ala.1975.

In any event, a certificate of title to an automobile is only prima facie evidence of an ownership and can be contradicted by other evidence as there was in this instance. City Car Sales, Inc. v. McAlpin, Ala.Civ. App., 380 So.2d 865 (1979), cert. denied, Ala., 380 So.2d 869 (1980).

Thus, the trial court did not commit reversible error in finding that the defendant owned the automobile.

The defendant next contends that the delay of a hearing of nine months after the seizure of the automobile denied him due process.

As indicated above, the state petitioned for forfeiture approximately four weeks after the vehicle was seized. The hearing on the above petition for forfeiture was held approximately eight months after the petition was filed.

Section 20-2-93(c), Code of Ala.1975, is as follows: “In the event of seizure . proceedings . . . shall be instituted promptly.”

We have held that proceedings instituted three and one-half weeks after seizure were prompt under this section. Winstead v. State, supra. See also, Kirkland v. State ex rel. Baxley, Ala.Civ.App., 340 So.2d 1121 (1976), cert. denied, Ala., 340 So.2d 1127 (1977). We hold in this instance that proceedings instituted approximately four weeks after seizure are permissible.

Section 20-2-93(c) does not provide for any date when hearings on petitions for forfeiture are to be held. Rather, the section requires that proceedings be instituted promptly. As indicated above, this requirement was satisfied in this instance.

In this instance, the hearing on the petition for forfeiture was held eight months after the petition was filed. The record does not contain any motion by the defendant for a speedy hearing or any other attempt whatsoever to have the hearing prosecuted. To the contrary, the record reveals that the hearing was once continued because the defendant’s attorney was out of town. There is no delay shown in the record on the part of the state, nor is there any prejudice pointed out by the defendant which resulted from the eight month delay. For aught that appears, the hearing would have been held earlier but for the defendant’s continuance.

The facts of Kirkland, supra, indicate that the order of forfeiture was entered approximately three months from the date of seizure and a month and one-half from the date the petition was filed seeking forfeiture. In view of the facts shown above, we hold that the hearing held eight months from the date of the filing of the petition seeking forfeiture did not violate the defendant’s due process. See, Yarber v. State, Ala.Cr.App., 368 So.2d 868, cert. denied, Ala., 368 So.2d 871 (1978).

This case is due to be affirmed.

AFFIRMED.

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


author: CLARK, Retired Circuit Judge.

text:
    Lawrence Aubery THOMPSON v. STATE.
    6 Div. 998.
    Court of Criminal Appeals of Alabama.
    Aug. 21, 1979.
    Rehearing Denied Oct. 16, 1979.

      James G. Stevens, Mountain Brook, for appellant.
    Charles A. Graddick, Atty. Gen. and Jean Williams Brown, Asst. Atty. Gen., for ap-pellee.
   CLARK, Retired Circuit Judge.

This is an appeal from a conviction of murder in the first degree and a sentence to life imprisonment.

It is a companion case to Flanagan v. State, Ala.Cr.App., 369 So.2d 46 (1979) and Charlene Madison Thompson v. State, Ala. Cr.App., 369 So.2d 50, cert. denied, Ala., 369 So.2d 52 (1979). In each of the cited cases, a conviction of each defendant-appellant for murder in the first degree of Veronica Wilson, the alleged victim in this case, was affirmed. The evidence in the case under consideration, as well as in the other two cases, shows without dispute that the victim was brutally slain by being stabbed to death while she was with appellant, appellant’s wife Charlene, and Flanagan late at night, January 6-7, 1978, at an isolated place in Coalburg, Jefferson County, to which the four had traveled in appellant’s automobile. The wife of appellant herein, the defendant-appellant in Charlene Madison Thompson, supra, was the chief witness against defendant in Flanagan ; in the instant case Flanagan was the chief witness against defendant; appellant herein did not testify in Flanagan, supra; in testifying in his own defense in Flanagan, supra, Flanagan said that Thompson and his wife killed Veronica while Flanagan waited in the automobile.

As there is no contention on this appeal that the evidence is not sufficient to sustain the verdict and as our review of the record convinces us that there is no reasonable basis for such a contention, we find it unnecessary to recite facts in addition to those stated above and those discussed in Flanagan, supra.

Appellant presents no issue as to any of the proceedings in the trial court other than as to a proceeding on a hearing before a jury as to defendant’s mental competency to stand trial. Appellant contends that the verdict of the jury finding defendant mentally competent to stand trial was contrary to the evidence. He also contends that on the hearing of that issue the trial court erred in admitting in evidence a letter from a psychiatrist who had examined defendant, which letter consisted of a report by the psychiatrist to the court.

On the competency hearing, defendant presented strong evidence by Dr. Robert Estock, a psychiatrist, that defendant was not mentally competent to stand trial at the time. On the other hand, the State presented strong evidence by the testimony of Mrs. Donna Click, who had been employed as a psychiatric social worker in Jefferson County for eight years, that defendant was mentally competent to stand trial at the time. Mrs. Click had a “Masters Degree in Guidance and Counseling and 30 hours work beyond a Masters Degree in General Psychiatry” and on-the-job training. She had worked with psychiatrists in dealing with hundreds of prisoners, including defendant whom she had examined about five times over a period of approximately four years. The evidence on the particular issue was sharply in dispute, and it is not for this Court to say that the verdict of the jury was wrong.

The letter to which defendant objected when offered in evidence was addressed to Judge Wallace Gibson, one of the judges of the Jefferson County Circuit Court. The body of it is as follows:

“On June 23, 1978, in the Jefferson County Jail, Mrs. Donna Click and I had an occasion to evaluate Lawrence A. Thompson. Historical background was obtained from past records of Mrs. Donna Click. This is a 29-year-old white male incarcerated in the County Jail on a charge of murder.
“Mental status examination revealed a lucid, alert, oriented young man. His mood was hostile and sad and his affect was appropriate. He was well organized in the psychological sense with right associations. This individual is estimated functioning in an average intellectual range with good reality testing. His past history reveals a sociopathic personality.
“This individual appears to be manipulating. I do not feel he is psychotic and in my opinion he is competent to stand trial and aid in his defense.”

The circumstances of the offer in evidence of the letter, defendant’s objection, and the court’s ruling were set out in the record as follows:

“MR. BLACK: Your Honor, we offer what has been marked State’s Exhibit 2, which is a Xerox copy of a letter taken from the Court’s file to Judge Gibson by Dr. Blankenship concerning evaluation of this defendant. -
“MR. McDONALD: Let me see it. We object to this, may it please the Court. Hearsay.
“THE COURT: Overruled.
“MR. McDONALD: We except. As grounds, I need to examine the doctor. “(Whereupon, said document, having been previously marked for identification as State’s Exhibit 2, was then received in evidence. . .)”
Code Ala.1975, § 12-21-43, provides:
“Any writing or record, whether in the form of an entry in a book or otherwise, made as a memorandum or record of any act, transaction, occurrence, or event, shall be admissible in evidence as proof of said act, transaction or event if it was made in the regular course of any business and it was the regular course of the business to make such memorandum or record at the time of such act, transaction, occurrence or event, or within a reasonable time thereafter. All other circumstances of the making of such writing or record, including lack of personal knowledge by the entrant or maker, may be shown to affect its weight, but they shall not affect its admissibility. The term, ‘business’ shall include a business, profession, occupation and calling of every kind.”

It may well be that the State should have called Dr. Blankenship to testify as to his examinations and opinion as to the mental competency of defendant, but Ala.Code 1975, § 12-21-43, prescribes exceptions to the hearsay rule of exclusion. In Gamble, McElroy’s Alabama Evidence, (3d ed. 1977), § 254.01(6), it is stated:

“The business entries exception to the hearsay evidence rule is applicable in criminal as well as civil cases and records made in conformity with the rule may be introduced by either the accused or the state.”

Appellant relies largely upon Pierce v. State, 52 Ala.App. 422, 293 So.2d 483 (1973), cert. den. 292 Ala. 745, 293 So.2d 489 (1974), in which the trial court was upheld in its rejection of a letter to an expert witness for defendant from a psychologist. The court held:

. . We hold that the letter was properly rejected inasmuch as it was replete with opinions and conclusions of a putative psychologist whose qualifications appear nowhere in the record. Opinions are generally inadmissible when emanating from the mind of one not fully qualified as an expert. Cox v. State, 280 Ala. 318, 193 So.2d 759; Horn v. State, 22 Ala.App. 66, 111 So. 452.
“§ 415, supra, is merely a statutory exception to the hearsay evidence rule and in no way abrogates the opinion evidence rule. Mahone v. Birmingham Electric Co., 261 Ala. 132, 73 So.2d 378; Greathouse v. Credit Bureau, Inc., 279 Ala. 524, 187 So.2d 565.”

This case is distinguishable from Pierce in that there was testimony as to the qualifications of Dr. Blankenship as a psychiatrist and “an expert in psychiatry.”

That a business record contains an expression of opinion does not prevent its admission in evidence, if otherwise admissible, if the opinion expressed therein is shown to be given by one who is qualified to express such an opinion. Gamble, McElroy’s Alabama Evidence, (3d ed. 1977), § 254.01(4).

It affirmatively appears without dispute that the letter-report from Dr. Blankenship to Judge Gibson was a part of “the Court’s file” in the case being tried and that Exhibit 2 constituted a photographic copy thereof. The trial court was not called upon to determine whether the exhibit was objectionable on grounds such as it was not self-proving, not constituting the best evidence, not shown to have been made “in the regular course of any business” or within “the regular course of the business to make such memorandum or record,” or upon any ground other than the asserted ground of hearsay, which is not a valid ground of objection to admission in evidence of records covered by Ala.Code 1975, § 12-21-43.

In Stinson v. State, 45 Ala.App. 5, 221 So.2d 397 (1968), cert. den. 284 Ala. 734, 221 So.2d 399 (1969), the trial court was reversed for its sustention of an objection of the State to a report of a clinical psychologist, who was on the stand as a witness for defendant, which had been made six weeks before trial. The court said:

“The State objected on the ground that the witness was in court. The defense argued that the report was in essence a record. The trial judge sustained the objection.
“We hold that the report comes under the contemporary memorial doctrine of the Business Records Act, Code 1940, T. 7, § 415, and reversed the judgment.
******
“The report was from Lee County Mental Health Center and was over the expert’s signature. It is clearly distinguishable from the report of a multi-practitioner lunacy commission. We consider that Ward v. State, 44 Ala.App. 229, 206 So.2d 897, was a sufficiently similar case to be a precedent here.”

From Ward v. State, 44 Ala.App. 229, 206 So.2d 897, 911, we quote:

“Here we consider it proper for Dr. Patton to have read from the hospital records rather than merely authenticate them and thus leave it in a ‘raw’ state for the jury. He was testifying not from hearsay but on his own as an expert. “The Opinion Rule can be subserved even if the opinion is one filed in writing under the Business Records Act. McElroy, Evidence (2 Ed.), § 254.01(5).
“The Business Records Act (§ 415, supra) has come not to destroy but to fulfill. It is cumulative as to any other mode of proof. Thus, Dr. Patton could both give authentication of the hospital record and, having been qualified as a psychiatrist, give his opinion quite apart from the rest of the hospital records.”

Whether the trial court would have ruled in favor of defendant on an objection to Exhibit 2 if the grounds of objection had been extended beyond that of “hearsay,” we are unable to say, but the trial court should not be placed in error in overruling defendant’s objection on the ground stated.

We should also note that after defendant’s counsel stated “I need to examine the doctor,” he made no request that Dr. Blankenship appear in court to be examined or that he be given an opportunity to examine Dr. Blankenship at any time or place.

We find no error in the record. 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.


author: PER CURIAM.

text:
    Ex parte Lawrence Aubrey THOMPSON. (Re: Lawrence Aubrey Thompson v. State of Alabama).
    79-81.
    Supreme Court of Alabama.
    June 6, 1980.
   PER CURIAM.

WRIT DENIED — NO OPINION.

All Justices concur, except BLOOD-WORTH, J., not sitting.