author: ALMON, Justice.

text:
    Charles A. GRADDICK, as Attorney General of Alabama v. Chris N. GALANOS, as District Attorney of the Thirteenth Judicial Circuit.
    78-796.
    Supreme Court of Alabama.
    Jan. 11, 1980.

      Charles A. Graddick, Atty. Gen., pro se, and Edward E. Carnes, Asst. Atty. Gen., for appellant.
    Chris N. Galanos, Mobile, pro se.
    Ronald L. Myers, Opelika, and Lewey Stephens, Jr., Elba, amicus curiae.
   ALMON, Justice.

The District Attorney of Mobile County, Chris N. Galanos, filed a petition for declaratory judgment in the Circuit Court requesting the court to determine whether he, as District Attorney, has the sole responsibility for prosecuting the retrial of Thomas Whisenhant who is charged with rape where the victim was intentionally killed. From a finding in Galanos’ favor, the Attorney General, Charles A. Graddick, appeals. We reverse.

The case involving Whisenhant arose in Mobile at the time Graddick was the Mobile District Attorney. Graddick served as chief prosecutor of that trial which resulted in Whisenhant’s conviction. Graddick was personally and extensively involved in all stages of the original prosecution of Whi-senhant.

Subsequently, the Alabama Court of Criminal Appeals reversed this conviction. Whisenhant v. State, 370 So.2d 1080 (Ala.Crim.App.), cert. denied, 370 So.2d 1106 (Ala.1979). At the time the Court of Criminal Appeals’ opinion was rendered Graddick was serving as Attorney General. Six days following the opinion, Galanos was appointed Mobile County District Attorney, filling the vacancy created by Graddick’s becoming Attorney General.

Graddick brought with him to the Attorney General’s office the prosecutorial files in the Whisenhant case. Galanos asked Graddick for these files and was informed by Graddick that he would keep the files as he intended to try the case. Graddick also informed Galanos that he would give him a copy of the files if a need were shown.

Galanos filed a petition for declaratory judgment asking the court to declare that he has the sole responsibility for the retrial of Whisenhant and for the court to define the rights and status of the Attorney General and District Attorney as such rights and status pertain to the conduct of criminal prosecutions in the Thirteenth Judicial Circuit. Graddick requested the court to declare that, as Attorney General, he had the power, authority and right to superintend and direct the prosecution, as chief prosecutor of the Whisenhant case. He also requested an order prohibiting Galanos from interfering with him.

The Circuit Court declared that Code 1975, § 12-17-184(2), charges the District Attorney with the responsibility for the prosecution of all pending cases arising out of indictments within his circuit and this section is paramount to any other statutory direction. Therefore, Galanos was to have sole responsibility for the retrial of the Whisenhant case. From this decision Grad-dick appeals. Briefs were filed and oral argument heard. The Alabama District Attorneys Association as amicus curiae, support the position taken by the Attorney General.

The controversy which has been presented to this Court concerns the alleged conflict between two sections of the Alabama Code. They are, Code 1975, § 12-17-184(2), which states:

It is the duty of every district attorney and assistant district attorney, within the circuit, county or other territory for which he is elected or appointed:
* * * * * *
(2) To draw up all indictments and to prosecute all indictable offenses,

and § 36-15-14, which states:

The attorney general, either in person or by one of his assistants, may at any time he sees proper, either before or after indictment, superintend and direct the prosecution of any criminal case in any of the courts of this state. The district attorney prosecuting in such court shall assist and act in connection with the attorney general or his assistant in such case.

We find no conflict exists between these two sections. Section 12-17-184(2) merely describes the powers of the District Attorney and is not a limitation on the powers of the Attorney General.

We are not presented with a case where the Attorney General is attempting to usurp all of the functions of the District Attorney’s office, and of course we do not decide this question. The Attorney General is merely attempting under legislative authority to superintend and direct the prosecution of the Whisenhant case. Thus, we are of the opinion that § 36-15-14, enacted subsequent to § 12-17-184(2), allows the Attorney General to assume the role of chief prosecutor. Should the District Attorney assist the Attorney General in the forthcoming trial, and should a conflict in judgment arise as to how the prosecution should be conducted, then we are of the opinion that the Attorney General’s judgment should prevail.

For the reasons stated, the judgment of the Circuit Court is reversed and the cause is remanded.

REVERSED AND REMANDED.

BLOODWORTH, MADDOX, FAULKNER and EMBRY, JJ., concur.


source: Caselaw Access Project

author: FAULKNER, Justice.

license: Public Domain

text:
    BENDER SHIP REPAIR, INC. v. Charles J. STEVENS, II.
    78-359.
    Supreme Court of Alabama.
    Jan. 11, 1980.

      Robert M. Montiel, Mobile, for appellant.
    Gary A. Hudgins, Gary P. Alidor, Mobile, for appellee.
   ON APPLICATION FOR REHEARING

FAULKNER, Justice.

The original opinion in this case is withdrawn and the following opinion is substituted in its place.

This is an appeal from an interlocutory order permitted by this Court pursuant to Rule 5, ARAP. The circuit court order denying Bender’s motion for judgment on the pleadings is reversed.

While employed by Bender under an employment contract terminable at will by either employer or employee, Stevens served on the Mobile County Grand Jury May 8, 9, 10 and 12. On May 11, during a break of jury service, Stevens contends by affidavit that he was fired, for service on the grand jury. Bender’s evidence affidavits reflect that it terminated Stevens’ employment on May 81, because he did not report to work after grand jury service.

Stevens sued Bender, alleging breach of employment contract by firing him for serving on the grand jury. Bender’s motions to dismiss, for summary judgment, and for judgment on the pleadings were denied. The trial court certified the ap-pealability of the denial of the motion for judgment on the pleadings. This Court granted permission to appeal.

Even though there is a conflict in the reason for termination, the crux of the case is whether an employer may terminate the employment under a terminable at will contract for any reason.

Under the decisions of this Court, an employment contract terminable at the will of either the employer or the employee, may be terminated by either of them with or without cause or justification. Hinrichs v. Tranquilaire Hospital, 352 So.2d 1130 (Ala.1977); Martin v. Tapley, 360 So.2d 708 (Ala.1978). The provisions of Code 1975, § 12-16-8, protecting an employee from loss of his usual compensation while serving on a grand jury, do not alter this rule.

REVERSED AND REMANDED, OPINION SUBSTITUTED FOR ORIGINAL OPINION, AND APPLICATION FOR REHEARING OVERRULED.

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


author: HOLMES, Judge.

text:
    Thomas Clifford HEARN v. Geraldine Madelyn HEARN.
    Civ. 1849.
    Court of Civil Appeals of Alabama.
    Oct. 10, 1979.
    Rehearing Denied Nov. 7, 1979.

      Ernest H. Hornsby of Johnson & Horns-by, Dothan, for appellant.
    Jere C. Segrest of Hardwick, Hause & Segrest, Dothan, for appellee.
   HOLMES, Judge.

This is a divorce case.

The Circuit Court of Houston County, pursuant to § 30-2-55, Code of Ala.1975, terminated the wife’s alimony as of the date of filing of the husband’s petition for modification. The husband appeals, contending that the alimony should have been terminated as of the date of the wife’s remarriage.

In view of the facts, as indicated below, we find that the trial court did not err to reversal and affirm.

The record reveals the following:

The parties were divorced in January of 1976. An agreement was incorporated into the divorce decree which, among other things, provided that the husband pay the wife $185 per week as “alimony and child support.”

In May of 1978 the wife remarried. The following month the husband reduced his payments to $250 per month without agreement of the wife or court approval. In October of 1978 the husband filed a modification petition seeking to reduce the amount of child support and to terminate alimony. The wife answered and counterclaimed seeking a judgment for the difference between the $185 per week the husband had been ordered to pay and the lesser sum he had actually paid since June, 1978, until the date of the hearing.

The trial court held an ore tenus hearing. From evidence adduced at the hearing the trial court determined what amount of the $185 per week support was attributed to alimony and what amount was attributed to child support.

Additionally, the trial court, pursuant to § 30-2-55, relieved the husband from any further obligation to pay alimony as of the date of filing of the petition to modify. The trial court also rendered a judgment in favor of the wife for the amount of accrued and unpaid alimony due up to the date of filing of the petition and the amount of accrued and unpaid child support due at the date of the hearing.

Through able counsel, the husband contends that the remarriage of his ex-wife absolutely terminates her right to future alimony as of the date of her remarriage. Put another way, the husband argues that the trial court erred in refusing to credit against the amount of accrued child support owed, the alimony paid back to the date of the remarriage of his ex-wife. In this instance we do not agree.

Section 30-2-55, Code of Ala.1975 (1978 Cumulative Supplement), is as follows:

Any decree of divorce providing for periodic payments of alimony shall be modified by the court to provide for the termination of such alimony upon petition of a party to the decree and proof that the spouse receiving such alimony has remarried or that such spouse is living openly or cohabiting with a member of the opposite sex.

In this instance, the trial court had to first make a determination of what amount of the support award was alimony and what amount was child support. Such a determination was essential in order for the court to terminate the alimony. That is, until there was a determination by the trial court of an allocation of a portion of the award to alimony and a portion to child support, there could logically be no termination of alimony.

Once the trial court determined the amount of alimony, it had the duty, under § 30-2-55, to terminate such alimony upon petition of the husband and proof of remarriage. This the trial court did.

The statute contemplates the termination of alimony. Under circumstances where the support being paid to the wife does not differentiate between alimony and child support, the statute cannot become operative until alimony is fixed as a sum certain.

In this instance, the husband urges us to hold that termination of the alimony relates back to the date of remarriage. However, it was only until the trial court determined what portion of the award being paid was alimony that there was any point in time from which the alimony could terminate.

In Board of Dental Examiners v. King, Ala.Civ.App., 364 So.2d 311 (1977), we stated that in construing and applying a statute, the essential object to be determined is the valid legislative intent. Further, in reaching such a determination a court must consider the subject on which the law operates, its language and purpose.

In this instance, to relate back the termination of alimony to the date of remarriage would be contrary to the expressed intent of § 30-2-55 and its purpose in that until alimony is fixed as a sum certain there is no amount that can be terminated. Therefore, the trial court was correct in terminating future alimony to the wife from the date of the filing of the petition for modification.

In addition to the above, the husband contends that the trial court erred in awarding the wife’s attorney a reasonable attorney’s fee. We do not agree.

Certain aspects of the petition before the trial court clearly involved modification proceedings. Therefore, in this instance, the trial court had discretion to award an attorney’s fee to the wife’s attorney. Jernigan v. Jernigan, Ala.Civ.App., 335 So.2d 178 (1976). Thus, the award of a reasonable attorney’s fee was not error.

The wife requests an award of an attorney’s fee for defending this appeal. Due to the relative financial conditions of the parties, such request is denied.

This case is due to be affirmed.

AFFIRMED.

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


author:
PER CURIAM.
      FAULKNER and JONES, Justices

text:
    Ex parte Thomas Clifford HEARN. In re Thomas Clifford HEARN v. Geraldine Madelyn HEARN.
    79-156.
    Supreme Court of Alabama.
    Jan. 18, 1980.
    Ernest H. Hornsby of Johnson & Horns-by, Dothan, for petitioner.
    Jere C. Segrest of Hardwick, Hause & Segrest, Dothan, for respondent.
   PER CURIAM.

WRIT DENIED.

TORBERT, C. J., and BLOODWORTH, MADDOX, ALMON, SHORES, EMBRY and BEATTY, JJ., concur.

FAULKNER and JONES, JJ., dissent.

FAULKNER and JONES, Justices

(dissenting):

A unanimous Court of Civil Appeals, and now seven of the nine Justices of this Court, agree with the trial Court’s interpretation of § 30-2 — 55, Ala.Code 1975. Respectfully, we say, even Homer nods, but rarely do so many Homers nod at the same time. Being outnumbered, however, does not dissuade our view that an incorrect and unfortunate interpretation has been placed on this statute.

First, let’s examine the trial Court’s holding: “. . upon petition and proof that the spouse receiving such alimony has remarried . . .’’is interpreted to mean that the filing date of the modification petition is the legal incident which terminates the obligation to pay alimony. In effect, the trial Court says that the word “upon” signifies a time reference. “Upon,” therefore, supplies the “when” element of the event spoken to in the statute. Accordingly, the Petitioner (here, the husband) may have the Court modify his divorce decree by terminating his obligation to pay alimony when (i. e., at the time) he files a petition alleging remarriage of his former wife subject, of course, to proof of this material allegation. Under this interpretation, the trial Court reduced the total child support and alimony by the amount determined to represent alimony as of the filing date of the petition.

We opine that his interpretation is wrong. Only if the word “upon” means “by way of” (i. e., the means, or procedural method) can the statute be accorded any reasonableness or consistency of meaning. The public policy expressed in this statute, coupled with other pertinent statutes, is to the effect that the right of an alimony recipient terminates upon three events: 1) when the decree fixing the obligation is so modified; 2) when the recipient dies, or 3) when the recipient remarries.

Here, the latter — remarriage—is the legal incident that terminates the obligation to pay alimony. “Upon petition and proof” is the statutory means of having this right of termination adjudicated, and this procedural method necessarily follows, in point of time, the legal incident of termination of the alimony obligation.

There is no sound public policy reason to be served by allowing the obligation to run between the time of the remarriage and filing of the petition. Indeed, the statute imposes no requirement of notice by the payee to the payor of the fact of remarriage. The very purpose of alimony is being thwarted where termination of the obligation is dependent upon an imprecise subsequent event — filing of petition — particularly in circumstances where the alimony recipient’s conduct can control or influence the length of such period.

The major fallacy of the trial Court’s interpretation is most apparent in this: If “upon” means “when,” what happens to the “and proof” portion of the time frame? How can he fix the termination date “upon [the filing of the] Petition,” when the statute reads, “upon petition . . and proof.”

The only point we make here is that once “upon” is construed to specify “when,” the combination of the filing of the petition and the proof of its allegations must necessarily be used together in fixing the termination of the alimony date. The statute does not say, “termination of alimony upon petition stating that the spouse has remarried.” Instead, it says, “termination of alimony upon petition and proof that the spouse has remarried.”

We must conclude, therefore, that the trial Court, the Court of Civil Appeals and seven members of this Court have violated their own rules of construction and arbitrarily selected the first half of a two-part condition for fixing the date of termination. To be sure, if “upon” means “at the time of,” and the two events that trigger that time — petition and proof — are conditions precedent to termination, as the clear wording states, the problem is greatly magnified. When is the second event — proof—■ consummated? On the date of the hearing? Or, on the date of the decree of modification? What about delays in docketing such hearing? And what about the duty of the payee to disclose the fact of remarriage?

These questions point up two anomalies:

1) The majority’s construction of the statute accepts only the first half (petition) of a two-part condition as fixing the time of alimony termination without reference to, or explanation of, the disregarded other half (proof). Indeed, the Appellee (former wife) contended in the trial below that she was due alimony up to the date of hearing on the petition to modify. If one accepts the “at the time of” definition of “upon,” Appellee’s position is absolutely correct in that the hearing is the earliest date the proof requirement could be met.

2) The second anomaly lies in the lack of uniformity of application of the “at the time of the filing of the petition” construction. In order to implement the statutory purpose of terminating alimony upon remarriage under this interpretation, one of three things must occur: a) The payee must be honest enough to inform the payor in advance of the remarriage date; b) the payee must voluntarily not accept alimony payments beyond the date of remarriage; or c) the payor must keep a daily vigil on the payee’s remarriage so that the payor can file a petition in advance of the wedding date and schedule a hearing on the following day. As a practical matter, neither of these events will occur. Yet, the Court is content to construe the statute to allow a “windfall profit” to the payee under circumstances of the payee’s making.

We are constrained to address one other point: The rationale of the Court of Civil Appeals that “until there was a determination by the trial court of an allocation of a portion of the award to alimony and a portion to child support, there could legally be no termination of alimony Therefore, the trial court was correct in terminating further alimony to the wife from the date of the filing of the petition for modification.” The problem, here, is that the conclusion does not follow the premise. If we accept this premise as correct, the date of filing and date of hearing and adjudication would have to be the same for the problem suggested in the premise to be met in fixing the termination date. In other words, if alimony can be terminated only after it “is fixed as a sum certain,” then, this is accomplished no more by the filing of a petition than by the fact of remarriage.

Suppose, for example, the petition is filed one month after date of remarriage, but the adjudication fixing the amount as between alimony and child support occurs four months later. How do the filing date and the remarriage date differ in supplying “a determination . . . essential in order for the court to terminate the alimony”? Obviously, there is no difference. Hence, under this rationale, the adjudication date rather than the filing date would terminate alimony in those circumstances where the prior decree awarded alimony and child support without differentiating between the two.

But all of this argument begs the ultimate question, and this for the reason that the premise of the necessity of adjudication to fix the amount of alimony is wrong. The fixing of the amount is a matter of mechanics which trial courts are adept at handling. The mere fact that in any given case the precise sum representing alimony, as opposed to child support, has not been judicially fixed cannot be the source of a holding that until this missing element is supplied there is nothing to terminate. Some portion of the total award is alimony and the legal incident terminating that portion is the recipient’s remarriage. Upon petition and proof, this adjudication can be made; and, once made, it can be given operative effect as of the statutorily contemplated incident of termination- — the date of remarriage.


author: WRIGHT, Presiding Judge.

text:
    Alvin O. SALTER v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY.
    Civ. 2023.
    Court of Civil Appeals of Alabama.
    Nov. 28, 1979.
    Rehearing Denied Jan. 9, 1980.
    J. Milton Coxwell, Jr., of Coxwell & Cox-well, Monroeville, for appellant.
    Windell C. Owens, Monroeville, for appel-lee.
   WRIGHT, Presiding Judge.

Plaintiff appeals from a jury verdict for defendant insurance company in a suit seeking recovery under the theft coverage provisions of an automobile insurance policy-

The evidence introduced at trial by the plaintiff is undisputed. Plaintiff testified that he was the owner of a 1972 Volkswagen automobile which was insured by defendant against theft. In January 1978 he loaned this automobile to his daughter who was living at that time in Florala, Alabama. Plaintiff further testified that on February 28, 1978, he drove to Florala and discovered that the automobile was no longer in his daughter’s possession. James Walker, a sergeant in the Dothan Police Department, testified that since May 1978 the automobile had been in the possession of one Haston Jenkins of Dothan, Alabama. Plaintiff was then recalled as a witness and attempted to testify that Mr. Jenkins’ possession of the automobile was without his consent. The trial court sustained defendant’s objections to this testimony and the case was submitted to the jury. The jury returned a verdict in favor of the defendant. The court subsequently denied plaintiff’s motion for new trial and plaintiff appeals.

Plaintiff contends that the trial court committed reversible error in refusing to allow plaintiff to testify that he had not consented to Mr. Jenkins’ possession of the automobile. We do not agree with this contention and affirm the judgment below.

Plaintiff’s testimony established that he had loaned the automobile to his daughter and that she was in possession of it when it was alleged to have been stolen. She did not appear as a witness nor was any attempt made to explain how the automobile came to be openly in ■ possession of Jenkins. No charge of theft was shown to have been made against him. To show merely that plaintiff had not consented to Jenkins’ possession could not show theft of the vehicle from the daughter. It. is the consent or non-consent of the daughter that would be relevant in this case. If Mr. Jenkins took possession of the automobile with the consent of plaintiff’s daughter, no theft has occurred regardless of plaintiff’s non-consent to his possession. Nickerson v. State, 22 Ala.App. 640, 119 So. 243 (1928). Under the admitted state of the evidence we cannot say that it was error for the trial court to refuse to allow plaintiff to testify that he had not consented to Mr. Jenkins’ possession of the automobile. The judgment below is affirmed.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


text:
    Henry C. HUGHES, Jr. v. SOUTHERN HAULERS, INC.
    Civ. 1961.
    Court of Civil Appeals of Alabama.
    Dec. 5, 1979.
    Rehearing Denied Jan. 9, 1980.

      Myron K. Allenstein, Gadsden, for appellant.
    Jasper P. Juliano and William J. McDaniel, of McDaniel, Hall, Parsons & Conerly, Birmingham, for appellee.
   HOLMES, Judge.

This is a wrongful death case.

The plaintiff recovered a jury verdict and appeals contending that the damages assessed by the jury were inadequate. Plaintiff’s basis for this contention is that the trial court erred in (1) refusing to admit certain evidence; (2) directing a verdict in favor of the defendant on a wanton count; (3) incorrectly instructing the jury on damages; and (4) refusing to make certain jury charges.

We find that the trial court did not commit reversible error and affirm.

Plaintiff, as executor of the estates of Henry C. Hughes, Sr., and Myrtle Hughes, filed suit in the Circuit Court of Etowah County, against the defendant for the wrongful death of the two deceased parties.

Mr. and Mrs. Hughes were killed in a head-on collision with a truck owned by the defendant and operated by the defendant’s employee. The defendant’s employee was passing in the left lane to avoid collision with a turning vehicle when the accident occurred.

After a trial of the issues the jury returned a verdict in favor of the plaintiff for $10,000 ($5,000 in each case).

Plaintiff filed a motion for a new trial which was denied by the trial court and plaintiff appeals.

At the outset, we note that in a wrongful death case, where the plaintiff recovers a jury verdict and makes a motion for a new trial, the trial court is precluded from reviewing such a motion where the sole ground for granting the new trial is the inadequacy of the sum assessed. Crenshaw v. Alabama Freight, Inc., 287 Ala. 372, 252 So.2d 33 (1971); Louisville & Nashville R. Co. v. Street, 164 Ala. 155, 51 So. 306 (1909).

However, in this instance where the errors complained of, are, as indicated above; i. e., rulings of the trial court allegedly affecting the award, such errors were properly before the trial court and are now properly before this court.

Plaintiff contends that the trial court erred to reversal in refusing to admit certain testimony and in directing a verdict in favor of the defendant on the wantonness count.

Plaintiff attempted to prove the defendant’s alleged wanton conduct by offering evidence to the effect that defendant had been driving at an excessive speed. He argues that the trial court erred in refusing to allow the investigating state trooper to give his opinion of the defendant’s vehicle speed.

This witness testified that he had approximately three years experience as an Alabama State Trooper and that he had observed skid marks at the scene. He gave his opinion both as to the position of the vehicles at the point of impact and as to where the accident occurred on the highway.

The question regarding the speed of the vehicle asked of the trooper was as follows: “. . . Mr. Johnson, based on what you observed talking to the people there, do you have an opinion as to how fast Mr. Porter was going?”

An objection to the question was sustained by the trial court. Plaintiff argues that because the witness observed the aftermath of the accident and possessed several years of experience as a state trooper, it was error to disallow him to give his opinion as to the speed of the vehicle.

Whether a witness will be allowed to testify as an expert is largely discretionary with the trial judge and his decision will not be disturbed except for palpable abuse. Hagler v. Gilliland, 292 Ala. 262, 292 So.2d 647 (1974).

In the instant case, the only testimony concerning the witness’s qualifications were his years in service. The witness was not questioned concerning the amount and type of training received and the number, if any, of previous accidents that he had investigated. In addition, the question put to the witness was not clearly predicated on skid marks made before impact. In view of the lack of testimony concerning qualifications and the fact that the question was based on.what the witness had observed talking to other persons, we cannot say, as a matter of law, that a proper foundation was laid for the witness to express an opinion as to the speed of the vehicle so that it would be error to refuse to admit the testimony. Glaze v. Tennyson, Ala., 352 So.2d 1335 (1977); Johnson v. Battles, 255 Ala. 624, 52 So.2d 702 (1951).

Similarly plaintiff contends it was error to refuse to allow a witness who lived near the scene of the accident to testify as to his opinion of the speed of defendant’s vehicle.

Again, wide discretion is allowed the trial court in determining whether a witness is competent to testify.

The record reveals that the witness heard the truck immediately before the wreck, and also heard the collision. The witness testified that he only saw the truck for approximately six seconds. However, the witness stated that he did not know how fast the truck was going, only that it was going “fast.” The trial court ruled that such testimony was insufficient qualification for an opinion of speed.

Such an expression as “going fast” is not evidence of actual speed. Since the witness himself stated that he did not know how fast the truck was going, we do not find abuse of discretion in the trial court’s refusal to allow the witness to express an opinion as to the speed of the vehicle. Griffin Lumber Co. v. Harper, 247 Ala. 616, 25 So.2d 505 (1946).

In view of the above, we cannot agree with plaintiff’s contention that there was a scintilla of evidence on the issue of wantonness which would merit the submission of this issue to the jury.

“Wanton conduct” is the doing of some act or something with reckless indifference to the consequences of said act, or it is a failure or omission to do something, with reckless indifference to the consequences of such failure or omission; that is, that the party acting or failing to act is conscious of his conduct, and even though without any actual intent to injure is aware from his knowledge of existing circumstances and conditions that his conduct would probably result in injury to another or in damage to his property. W. T. Ratliff Co., Inc. v. Purvis, 292 Ala. 171, 291 So.2d 289 (1974).

In essence, a review of the admissible evidence reveals only that the defendant approached from the rear a vehicle that was attempting to turn. Being unable to stop, defendant attempted to avert an imminent collision by passing this turning vehicle on the left. The tragic result was a collision with the oncoming vehicle occupied by the plaintiff’s parents.

We do not think that these facts provide a scintilla of evidence on the issue of wantonness. That is, the evidence does not provide a reasonable inference that the defendant acted with reckless indifference to the consequences of his act or was aware that his conduct would probably result in injury to another. The defendant reacted to an emergency situation and to avoid a collision swerved to keep from hitting the vehicle in front of him. There was no competent evidence to show that the defendant created the emergency. See, Riddle v. Franklin, 291 Ala. 671, 286 So.2d 841 (1973).

Where the proof is merely that the injury could have happened in the way alleged by plaintiff, and from the same proof the injury can with equal probability be attributed to some other cause, the evidence does not warrant the conclusion that the accident occurred in such a manner as will support the plaintiff’s case. Griffin Lumber Co. v. Harper, supra. This rule is especially apt where, as here, there is neither evidence that defendant was driving at an excessive speed nor that he caused the emergency which resulted in the fatal collision.

As there was not a scintilla of evidence that defendant’s conduct in this instance, was wanton, the trial court did not commit error in directing a verdict in favor of the defendant on the wanton count.

Plaintiff additionally contends there was error in that part of the oral charge which dealt with the imposition of punitive damages in a wrongful death case. Specifically, he points to the statement to the jury that “the imposition of punitive damages is entirely discretionary. . . . ”

Reviewing this portion of the charge in its entirety, we find the learned trial judge gave a fair and complete charge. He instructed the jury that should they find for the plaintiff, it would be necessary to arrive at an amount to be awarded directly related to the culpability of the defendant while considering the necessity of deterring such actions in the future. In other words, he was instructing them that the amount to be awarded upon finding for the plaintiff was within their discretion upon consideration of the evidence before them.

It is the law that the amount of damages in a wrongful death case is discretionary. Crenshaw, supra; Street, supra. In determining the propriety of a charge, we consider it as a whole, and if it states, the law correctly, there is no error. Wren v. Blackburn, 293 Ala. 393, 304 So.2d 187 (1974). Clearly, the charge, as given, comes within the purview of this rule.

Finally, plaintiff complains of the trial court’s refusal to give certain requested charges. However, the record does not indicate that any objection was made as required by Rule 51, ARCP. Therefore, the plaintiff waives any error associated with the failure to give the requested charges. Barksdale v. Pendergrass, 294 Ala. 526, 319 So.2d 267 (1975); Clayton v. Simpson, Ala.Civ.App., 346 So.2d 457 (1977).

In any event, the trial court did charge the jury on most of the same principles of law as plaintiff contends were erroneously omitted. Therefore, even if plaintiff had correctly objected, there would have been no cause for-reversal. Wren v. Blackburn, supra.

This case is due to be affirmed.

AFFIRMED.

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


author: BRADLEY, Judge.

text:
    AMERICAN FIRE & CASUALTY INSURANCE COMPANY, INC. v. Dwight BRYAN.
    Civ. 1971.
    Court of Civil Appeals of Alabama.
    Dec. 19, 1979.
    Rehearing Denied Jan. 16, 1980.

      Jerry E. Stokes, Andalusia, for appellant.
    G. A. Lindsey, Elba, W. Sidney Fuller of Tipler, Fuller & Sikes, Andalusia, for appel-lee.
   BRADLEY, Judge.

This is an appeal by the defendant, American Fire and Casualty Company, Inc., from a jury verdict in favor of the plaintiff, Dwight Bryan, in the amount of $10,000 plus interest.

A fire destroyed the rented home in which the plaintiff was residing on February 22, 1976. The plaintiff’s personal property, which was also destroyed in the fire, was insured by the defendant, American Fire and Casualty Company. The policy had a limit of $10,000 and the plaintiff contended that property valued at $14,000 was destroyed. Therefore the plaintiff filed suit against the defendant for $10,000 for personal property destroyed in the fire. The defendant set up three defenses to the plaintiff’s complaint: (1) a general denial; (2) the fire which destroyed the property of the plaintiff had been deliberately set with the acquiescence and consent of the plaintiff; and (3) any insurance policy issued to the plaintiff was void by reason of the fact that the insured had fraudulently misrepresented the circumstances of the fire and the amount and value of the contents of the dwelling.

The original insurance policy covering the plaintiff’s personal property was destroyed in the fire. Afterwards, the plaintiff went to the local insurance agency through which he obtained the insurance coverage, and there obtained what purported to be a copy of his insurance contract with the defendant. The trial court admitted this document into evidence after evidence was adduced that the original policy was destroyed in the fire.

The defendant also produced at trial an insurance contract which it contended was a duplicate of the original policy issued to the plaintiff. The policy number on the duplicate was identical to that obtained by the plaintiff from the issuing agency and the policy itself was identical except for a forfeiture clause. This clause denied the plaintiff coverage if he misrepresented the circumstances of the fire and the value of the contents of the dwelling. The trial court also admitted this policy into evidence.

The defendant’s first contention is that the trial court erred in explaining to the jury the insurer’s third defense and in refusing to give the requested jury charge relating to that defense. The defendant’s third defense was that the policy of .insurance issued to the plaintiff was void because the plaintiff had wilfully concealed material facts or circumstances concerning the insurance in force, and had fraudulently misrepresented the amount and value of the contents of his home. As previously noted, this defense originated in a forfeiture clause found in the insurance policy produced by the defendant.

The trial judge explained the insurer’s third defense to the jury in the following manner:

The third defense, as I interpret it, that the Defendant, American Fire and Casualty Company, Incorporated, filed in this particular claim is the defense that the scheduled personal property that was scheduled in the proof of loss or in effect what was filled out, of the contents of the personal property, that was located in that dwelling house was inflated. And, that the value thereof was inflated. And, that is a matter for your consideration.
They have claimed number one, that you did not have the amount of personal property, the number of things in that house, that you scheduled.
All right. Number two. That the value of the personal property that you claim, or that the contents that you scheduled in that house, the value is inflated. The stuff that you did have was not worth what you claimed it was.
Now, those, in substance, are the two aspects, as I interpret that.

The trial judge refused to give the defendant’s requested charges which stated that the plaintiff’s insurance policy would be void if the plaintiff had deliberately overstated the value of his personal property with intent to deceive the insurance company. The trial court stated that its refusal of the requested charges was because there were two policies in evidence and to give the rejected charges would be tantamount to a comment on the evidence, i. e. placing greater emphasis on the policy of insurance introduced into evidence by the defendant than on the one introduced by plaintiff. The trial judge did, however, explain to the jury that the terms of the insurance policy were binding on both parties.

It is for the jury, not the trial judge, to determine the credibility of the evidence and resolve any conflicts that appear, to find the facts, and to express their conclusion in their verdict. Merchants Bank v. Cotton, 289 Ala. 606, 269 So.2d 875 (1972); Cook v. Sweatt, 282 Ala. 177, 209 So.2d 891 (1965). Rule 51, ARCP, specifically states that in charging the jury, the judge shall not express his opinion of the evidence. We think the trial court was correct in refusing to give the requested charges. There were two versions of the insurance policy before the jury and a charge assuming the validity of one of the policies would have indeed placed greater emphasis on one piece of evidence by choosing one policy over the other and the jury could easily have concluded that this was the proper policy and thereby been misled as to what evidence they should consider. Refusal of a written charge is proper when it is abstract and misleading, when not all the facts hypothesized in the charge could be inferred from the facts proven. Burke v. Thomas, 282 Ala. 412, 211 So.2d 903 (1968).

Furthermore, we think the trial court properly instructed the jury as to defendant’s third defense in its oral charge. It is well settled that the refusal of a requested charge which is covered in the trial court’s oral charge is not error. Burgreen Contracting Co. v. Goodman, 55 Ala.App. 209, 314 So.2d 284, cert. den. 294 Ala. 199, 314 So.2d 296 (1975). We believe the trial court adequately covered defendant’s third defense to the jury and stated that the provisions of the insurance policy were binding on all parties.

The defendant’s second contention is that the trial court erred in admitting the plaintiff’s secondary evidence of his insurance policy. Secondary evidence of the contents of the original writing is admissible upon proof, to the reasonable satisfaction of the trial judge, that the original has been lost. McElroy, The Law of Evidence in Alabama, § 214.01 (3d ed. 1977). The matter of the sufficiency of the preliminary proof as to the loss or destruction of primary evidence is largely a matter of judicial discretion. Powell v. Hopkins, 288 Ala. 466, 262 So.2d 289 (1972). The original of the insurance policy was destroyed in the fire and the trial court upon proper predicate admitted a copy of the policy obtained by the plaintiff from the defendant’s agency after the fire. We think the plaintiff established that the original policy was unavailable and therefore was entitled to have the copy of the policy obtained from the agency admitted into evidence.

The defendant also introduced into evidence a copy of the insurance policy which it contends is an original duplicate. The defendant argues that this is the best evidence of the insurance policy and not the copy that the plaintiff produced. Should it be shown that there were duplicate originals made, then all such duplicates would constitute the primary evidence. McElroy, supra, § 225.01(2). Therefore the burden was upon the defendant to establish that its copy of the policy was an original duplicate. The defendant’s only evidence to establish its copy of the policy as an original duplicate was an affidavit by an officer of the company.

The affidavit did not establish the defendant’s copy to be a duplicate original, but merely indicated that the defendant’s officer had caused to be prepared a duplicate of the plaintiff’s policy. We think this is clearly insufficient to establish the defendant’s copy of the policy as a duplicate original. The conduct of all the parties to a writing must show that they intended that each of two or more duplicates be the equal of each other to establish the duplicates as originals. McElroy, supra, § 225.01(2). The affidavit stated only that the defendant’s officer had prepared a copy of the plaintiff’s insurance policy, nothing more. Therefore we think the trial court was correct in admitting the defendant’s copy of the policy as secondary evidence and not as a duplicate original.

The defendant’s final contention is that the trial court erred in denying him an opportunity to show the complete terms of an insurance settlement inquired into by the plaintiff. It was the defendant who initially called Roy Parker, an adjuster for Farm Bureau, as a witness. Farm Bureau carried the insurance coverage on the home rented by the plaintiff and owned by Wendell Mooney. The defendant initially questioned Parker as to the claim of Mooney and its disposition by Farm Bureau. The plaintiff cross-examined Parker as to the Farm Bureau payment of Mooney’s claim without objection by defendant. On re-direct the defendant was allowed to question Parker as to the matter of the settlement of Mooney’s claim. Finally, again on re-direct, the defendant sought to examine Parker as to the amount of Mooney’s settlement. It was at this point that the trial court cut off the defendant’s inquiry into the Mooney settlement after the plaintiff objected as to the materiality of defendant’s line of questioning.

The defendant argues that the doctrine of curative admissibility is applicable to the testimony of Roy Parker concerning the Mooney settlement. The curative admissibility doctrine holds that if one party introduces illegal evidence, his opponent has the unconditional right to rebut such evidence. McElroy, supra, § 14.01. However, this doctrine is subject to the important qualification that matters not relevant to the issues on trial may not be brought out. R. C. Bottling Co. v. Sorrells, 290 Ala. 187, 275 So.2d 131 (1973). The insurance settlement of Mooney had no relevancy to the insurance claim of the plaintiff and we think the trial court acted properly in refusing to allow the jury to hear this testimony.

No reversible error having been presented, the decision of the trial court is affirmed.

AFFIRMED.

WRIGHT, P. J., concurs.

HOLMES, J., concurs in the result.


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    Bill BRADFORD, Ted Bradford and Don Bradford, d/b/a Bradford Farms v. NORTHWEST ALABAMA LIVESTOCK ASSOCIATION.
    Civ. 1946.
    Court of Civil Appeals of Alabama.
    Jan. 9, 1980.
    Stanley E. Munsey of Rosser & Munsey, Tuscumbia, for appellants.

      William M. Bouldin of Guin, Bouldin, Porch & Maddox, Russellville, for appellee.
   BRADLEY, Judge.

The plaintiffs, Bill Bradford, Ted Bradford and Don Bradford, d/b/a Bradford Farms, filed an action against the defendant, Northwest Alabama Livestock Association, seeking $6,978.91 for forty-nine head of cattle that had been delivered to and sold by the defendant at an auction sale. Defendant replied that the cattle died before a sale could be consummated and it was therefore not liable.

The defendant is in the business of operating a livestock auction in Franklin County. The farmer brings his cattle to the defendant’s sale barn for auction. The cattle are auctioned off to buyers and the farmer receives his money for the cattle when the defendant is paid.

The manager of the defendant’s sale barn testified that it was his duty to sell only cattle that were “sound and all right” and that were merchantable.

On March 26, 1978 the plaintiffs penned up forty-nine head of cattle in preparation for their delivery to the defendant the next day. The cattle had been fed a mixture of between thirty and forty percent shelled corn and chicken litter prior to being penned up. The cattle were fed one hundred percent corn after being penned up. The following day the cattle were delivered by the plaintiffs to the defendant for branding and selling.

Forty-eight of the plaintiffs’ cattle were sold at the auction. The defendant’s manager testified that one of the cows had died prior to the auction and that shortly after the sale he noticed that something appeared to be wrong with another of the cows. He stated that six of the cows had died by 10:30 that evening. The following morning sixteen of the plaintiffs’ cattle were found dead. The defendant’s manager then telephoned Dr. Allen, a veterinarian, to examine the animals.

Dr. Allen performed an autopsy on two of the animals. He testified that the digestive tracts of these animals were packed with shelled corn. He stated that the cattle died from acute indigestion caused by a sudden change in diet or eating much more corn than they were accustomed to eating. He further stated that a change from a diet of thirty percent corn to one hundred percent corn could have caused the death of the cattle since corn acts somewhat like a blotter and pulls fluids out of the body into the digestive tract and dehydrates the animal.

The plaintiffs also presented testimony at the trial from two experienced farmers who stated that they had never known cattle to be killed by feeding them one hundred percent shelled corn, even if they had previously been fed thirty to forty percent shelled corn.

Eventually twenty-nine of the plaintiffs’ cattle died. Although defendant contends that it never received payment from the buyers for the dead cows, plaintiffs say that defendant received the money for the dead cows but gave it back to the buyers. The evidence is unclear as to what occurred. The plaintiffs have received payment from defendant for the remaining twenty cattle which were sold and paid for by buyers. The plaintiffs brought suit seeking payment for forty-nine head of cattle. The jury returned a verdict for the defendant.

Before a review of plaintiffs’ appeal is commenced, we wish to state that we will review the issues raised on the same theory that they were tried below. Erwin v. Shiloh Homes, Ala.Civ.App., 360 So.2d 1003 (1978).

The plaintiffs’ first contention is that the trial court erred in charging the jury that a seller is responsible for a hidden defect or condition in merchandise sold in an auction sale. In other words, there is no implied warranty of merchantability of goods sold in an auction sale.

Plaintiffs further contend that warranty of title is the only warranty implied at an auction sale, and, in the absence of fraud, the vendor is not responsible for either the quality or goodness of the goods auctioned unless there is an express warranty to that effect made by the vendor. Plaintiffs say that they made no express warranties to defendant about the health of the cows other than that they were afflicted with brucellosis and that when the cows were sold to the highest bidder the sale was complete and the defendant, sellers’ agent, was obligated to collect and remit the money to the plaintiffs for the cows that had been sold.

Defendant replies that the sale of the cattle carried an implied warranty of merchantability and, since the cattle died as a result of overfeeding by plaintiffs, the buyers would not be liable for the sale price of the dead cows. Accordingly, defendant, plaintiff’s agent for the sale, should not be held responsible for the sale price of the cattle if the buyers thereof could not be deemed liable for them. In answer to this contention, plaintiffs say they were not merchants within the meaning of § 7-2-104(1), Code of Alabama 1975, and, therefore, the sale did not carry an implied warranty of merchantability; consequently the jury was in error in so finding. The question was presented to the jury and they found for defendant. Plaintiffs again state that once the auctioneer made the sale, the cattle belonged to the buyers, and death of the cows at that time amounted to a loss to the buyers, not to the sellers.

In Alabama a sale by auction is complete when the auctioneer so announces by fall of the hammer or in any other customary manner. Section 7-2-328(2), Code of Alabama 1975. Furthermore, every sale of goods, including a sale by auction, includes an implied warranty of merchantability if the seller is a merchant with respect to the goods of that kind. Section 7-2-314, Code of Alabama 1975.

A “merchant” is defined as:

(1) “Merchant” means a person who deals in goods of the kind or otherwise by his occupation holds himself out as having knowledge or skill peculiar to the practices or goods involved in the transaction or to whom such knowledge or skill may be attributed by his employment of an agent or broker or other intermediary who by his occupation holds himself out as having such knowledge or skill. § 7-2-104(1).

It has been held that a farmer does not usually come within the definition of a “merchant.” Loeb and Co. v. Schreiner, 294 Ala. 722, 321 So.2d 199 (1975). However, in the cited case the supreme court did not expressly exclude farmers from the third category of the merchant definition. There was an indication that if a farmer had employed an agent who by his occupation holds himself out as having knowledge or skill concerning the goods involved in the sale, the farmer could be classified as a “merchant.”

In the case at bar the evidence is undisputed that defendant was plaintiffs’ agent for the sale of the cattle. Further, it is undisputed that defendant was in the business of selling cattle to prospective buyers and had been so engaged for a number of years and held itself out as having the knowledge and skill to conduct such sales. Based on this evidence we conclude that defendant was a merchant as defined by statute. We further conclude that because of the employment of defendant as agent for the sale of their cattle, plaintiffs also became merchants as defined by the statute, and their sale became subject to the provisions of § 7-2-314; Code of Alabama 1975. Therefore, the court did not err in its charge to the jury and its judgment is due to be affirmed.

AFFIRMED.

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


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    Robert Wesley WICKS v. Eunice Odell WICKS.
    Civ. 1974.
    Court of Civil Appeals of Alabama.
    Jan. 9, 1980.
    Robert C. Barnett of Barnett, Tingle, Noble & Sexton, Birmingham, for appellant.
    Donald H. Brockway, Jr. of Corretti, Newsom & Rogers, Birmingham, for appel-lee.
   WRIGHT, Presiding Judge.

This is a divorce case.

The parties were married on April 25, 1952, in the state of Mississippi and lived together as husband and wife until they separated approximately one and one-half years prior to the institution of these divorce proceedings in 1978.

The wife filed a complaint for divorce alleging incompatibility and an irretrievable breakdown of the marriage. The husband counterclaimed for divorce citing the same grounds. At trial, both the wife’s complaint and husband’s counterclaim were amended to allege adultery by the other party as an additional ground for divorce.

After an ore tenus hearing the trial court granted a divorce in favor of the wife on the grounds of adultery. The divorce decree awarded custody of the parties’ minor child to the wife and required that the husband pay $100 per month in child support. The wife was awarded the home and ten acres of land surrounding the home, all household goods located in the home, a 1974 Oldsmobile automobile, a garden tractor and two lawn mowers. An additional seventeen (17) acres of real property owned by the parties, valued at $5,000 per acre, was ordered sold and the proceeds divided equally between the parties. The husband was awarded all of his tools, automobile parts and several old vehicles owned by him.

The husband appeals.

The only issue presented by this appeal is whether the trial court abused its discretion in its division of property and award of child support. We find no abuse of discretion and affirm.

The parties had been married twenty-six years. They had each worked while rearing three children. Two children are of age and no longer dependent. The husband’s parents had sold them thirty acres of land and a small house where they lived at the time of the separation, and where the wife now lives.

The fact of the husband’s adultery is open, continuous and notorious. Both the husband and his paramour testified that they have had sexual relations continuously since the parties’ separation in 1977.

The husband in January 1978, was in the apartment of his paramour when a fire occurred. To escape he jumped from a third floor window. The woman and her son jumped after him, landing upon him. As a result of the injuries sustained, the defendant was determined by the Social Security Administration and the Veteran’s Administration to be totally disabled. He draws social security benefits of $410 per month and veteran’s benefits of $197 per month. The daughter draws $167 per month from Social Security as his dependent.

The wife is presently employed by DuPont as a manual laborer with a take home pay of approximately $250 per week.

The husband cites the disproportionate award of real property as an abuse of discretion requiring reversal. The trial court, in making a property settlement, should consider the earning capacity and future prospects of the parties, their ages, sex, health and station in life, how long they were married, whether there are children to support, and the conduct of the parties with reference to the cause of the divorce. Bailey v. Bailey, 345 So.2d 304 (Ala.Civ.App.1977).

In this case, the trial court could have and probably did consider the evidence that the wife had contributed substantially to the attainment of the marital assets and that she is now the sole support of the parties’ daughter. The court could also have considered the husband’s admitted adultery and the part it played in the breakdown of the marriage. He is presently living openly with his paramour within sight of the home of his wife and daughter.

We have carefully reviewed the evidence presented and heard orally by the trial court. We are unable to hold that the award to the wife is so unsupported by the evidence as to constitute an abuse of discretion.

The husband’s second issue is that the award of $100 per month as child support is so excessive as to be an abuse of discretion. He argues that his obligation to support his daughter should be limited to the $167 per month she receives directly from the Social Security Administration because of his disability. The undisputed evidence is that the father receives a total of $607 per month in disability payments. This amount is not diminished by the $167 per month which is paid directly to the child. We do not find the award of $100 per month in child support to be so excessive as to constitute an abuse of discretion. She will shortly be nineteen years of age and no longer dependent.

The request of the wife for attorney’s fee on appeal is granted in the sum of $300.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


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    Daniel B. TIDWELL v. Patricia McAliley TIDWELL.
    Civ. 1998.
    Court of Civil Appeals of Alabama.
    Jan. 9, 1980.
    M. Wayne Wheeler, Birmingham, for appellant.
    Frederick A. Erben of Beddow, Fullan & Vowell, Birmingham, for appellee.
   BRADLEY, Judge.

This is a divorce case. The husband appeals from the trial court’s award of alimony and attorney fees to the wife. We affirm.

The parties were married for approximately two months before separation. No children were born of the marriage.

The husband’s first contention is that the trial court committed reversible error in awarding attorney fees to the wife without a request and absent evidence of financial need and performance of service. The husband relies on Cinader v. Cinader, Ala.Civ.App., 367 So.2d 487 (1979), to support this proposition. We think this reliance is misplaced. In Cinader we said that:

[A] request must be made, and evidence of financial need and performance of the service shown before the authority of the court to grant such fees is properly invoked.

The issue in that ease was whether the trial court committed error in failing to grant an attorney fee when there had been no request nor evidence of need or service. We held that the court was not in error in refusing to award a fee under such a state of fact. Such conclusion is not contrary to the letter and spirit of the Alabama Rules of Civil Procedure, especially Rule 15(b). Rule 15(b) eliminates the requirement of affirmative pleading if the issue has been tried in the ease by express or implied consent of the parties. The record in this case shows evidence as to need of the wife and performance of service by her attorney without objection by the husband. The court was not in error in granting a fee without a pleaded request. We would further note that we have not required the wife to prove the reasonable value of her attorney’s services in order for the award of a fee in a divorce action to be upheld. Godec v. Godec, Ala.Civ.App., 346 So.2d 459 (1977).

The husband’s second contention is that the trial court committed reversible error in awarding the wife an attorney’s fee based on an alleged agreement between the parties that the award of attorney fees would be left to the discretion of the court without testimony. Whether the trial court relied on such an agreement or not is immaterial in view of our position that a trial court may award attorney fees in its judicial discretion without proof of reasonableness in a divorce action. Hodson v. Hodson, 276 Ala. 227, 160 So.2d 637 (1964).

The husband’s third contention is that the trial court erred in awarding the wife alimony in gross when no affirmative relief was requested in the wife’s answer nor in any other responsive pleading. Rule 15(b) and Rule 54(c), ARCP, eliminate the necessity of strict pleading of issues tried expressly or with the implied consent of the parties. Bouler v. Bouler, Ala.Civ.App., 366 So.2d 290 (1979). There was extensive evidence in the case at bar of the financial conditions of the parties. We think it evident that this evidence was related to alimony and support. Therefore the wife’s failure to specifically request alimony in gross does not preclude the trial court from making such an award where there is evidence supporting such an award.

The husband’s final contention is that the trial court erred in granting alimony in gross to the wife when the parties were married only two months and no children were born of the marriage.

The question of alimony is a matter within the trial court’s sound discretion and will not be reversed on appeal in the absence of abuse. Caylor v. Caylor, Ala.Civ.App., 344 So.2d 173 (1977). We do not consider the $5,000 award in the instant case as being an abuse of the court’s discretion, despite the short duration of the marriage. The husband admitted taking a number of items belonging to the wife’s children when he moved out of the parties’ apartment. The wife also testified that the husband removed numerous items of furniture belonging to her. It could be that the trial court concluded that such an award was necessary to adjust the equities between the parties, or the court might have determined that such an award was warranted due to the loss of future support and inchoate rights. See Hager v. Hager, 293 Ala. 47, 299 So.2d 743 (1974). Whether denominated alimony in gross or a division of property, the court was empowered to adjust all equities between the parties. Jernigan v. Jernigan, Ala.Civ.App., 344 So.2d 778 (1977); Caldwell v. Caldwell, 54 Ala.App. 479, 309 So.2d 833 (1975); § 30-2-53, Code of Alabama 1975. We do not find any error in the trial court’s adjustment of these equities.

Appellee is awarded $350 for the services of her attorney on this appeal.

AFFIRMED.

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


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    Austin PRITCHETT, Jr. v. STATE of Alabama.
    Civ. 2006.
    Court of Civil Appeals of Alabama.
    Jan. 9, 1980.
    John B. Crawley, Troy, for appellant.
    No brief for appellee.
   BRADLEY, Judge.

Austin Pritchett, Jr. was incarcerated in the Pike county jail pursuant to a contempt citation handed down by the Pike County Circuit Court.

The appellant’s incarceration was the result of his failure to comply with the trial court’s decree ordering him to pay back alimony and attorney fees in the amount of $968.00, plus court costs.

The appellant subsequently petitioned the trial court for a writ of habeas corpus contending that he was unable to purge himself of contempt of the court because of financial inability. The trial court denied the appellant’s petition after a hearing. This appeal followed.

The only issue presented by this appeal is whether the appellant is financially able to purge himself of contempt of court.

The law in Alabama is settled that imprisonment for contempt should never be imposed by a judge where the failure to pay alimony, etc. is not from contumacy, but from inability to comply with the order. Muery v. Muery, 46 Ala.App. 617, 247 So.2d 123, cert. den., 287 Ala. 737, 247 So.2d 128 (1971).

The testimony in the trial court indicated that the appellant’s sole assets consisted of two vehicles and some plumbing tools. The two vehicles are a 1972 Oldsmobile and a 1970 van truck. The appellant testified that the Oldsmobile was in good condition and was worth between $1,000 and $1,200. He also testified that the van truck was in fair condition and valued at about $700. The van truck had been purchased for $1,500 only six months earlier. The appellant stated that his only other asset consisted of some plumbing tools purchased for about $500.

The appellant further testified that the Oldsmobile and his plumbing tools were subject to a note in the amount of $2,200 held by an uncle, Edward Fillingim, as mortgagor. The appellant previously paid $500 on the note so that a $1,700 balance is owed. He stated that Mr. Fillingim also has a note on his van truck in the amount of $500 which has not been paid. The appellant testified that the notes held by Mr. Fillingim had not been recorded and that Fillingim had not demanded payment of the indebtedness.

The former wife testified that the appellant owned two other vehicles: a green van and a black van. The appellant stated that the two vehicles were owned by his son, and that he had no interest in either of the vans.

The appellant testified that he was unable to purge himself of contempt of court because of numerous outstanding debts. He stated that he owed the Small Business Administration $47,000 on a previous loan. He testified that Montgomery Ward had a judgment against him in the amount of $1,312.00 and that he owed numerous other debts.

The appellant admitted that he had received an inheritance from his grandmother in the amount of $6,500 approximately three months prior to the habeas corpus hearing. He testified that he had used the entire inheritance to pay debts incurred by him and his wife. He stated that he had no money in the bank and had only $12 in cash.

The appellant contends that he is unable to pay the $968.00 in back alimony, attorney fees, and court costs and, therefore, should be released from custody. We agree.

The evidence shows that the few assets owned by appellant are encumbered by notes, mortgages, judgments and liens greatly in excess of the value of those assets. Consequently, we conclude that appellant is unable to pay the back alimony and attorney fees and, therefore, cannot purge himself of the contempt. The judgment of the trial court is reversed and the cause is remanded for entry of judgment releasing appellant from custody.

REVERSED AND REMANDED WITH DIRECTIONS.

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


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    Earnest Gordon BURTON v. Alice Jo Gorman BURTON.
    Civ. 2008.
    Court of Civil Appeals of Alabama.
    Jan. 9, 1980.

      Alvin T. Prestwood, Claude P. Rosser, Jr., Montgomery, for appellant.
    S. G. Culpepper, Jr. and Julia S. Waters, of Smith, Bowman, Thagard, Crook & Cul-pepper, Montgomery, for appellee.
   WRIGHT, Presiding Judge.

This is a divorce case.

The parties were divorced on October 17, 1978, by decree of the Montgomery County Circuit Court. The decree among other provisions, provided for the payment of periodic alimony by the husband, awarded the parties’ residence to the wife, and ordered the husband to pay the wife’s attorney fee. The decree was not appealed.

On March 30, 1979, the husband filed a petition to modify alleging changed circumstances in that his former wife had secured different employment which had improved her financial situation. The petition further requested relief from the decree pursuant to Rule 60(b), ARCP on the grounds that the award of alimony and the parties’ residence to the wife was unconscionable and that the Alabama alimony statute upon which the provision for periodic alimony was based had been declared unconstitutional in Orr v. Orr, 440 U.S. 268, 99 S.Ct. 1102, 59 L.Ed.2d 306 (1979).

After an ore tenus hearing, the trial court denied the petition to modify and refused to consider the husband’s constitutional argument, finding it to be untimely raised.

The husband contends on appeal that the decision of the United States Supreme Court in Orr renders judgments based on the prior law void or voidable and that Rule 60(b), ARCP is the appropriate vehicle for review of those judgments. He argues that as his petition was filed within the time limits imposed by Rule 60(b), the constitutional issue was timely raised and the trial court erred in its refusal to consider it.

It has long been the practice of our courts to refuse to hear an attack on the constitutionality of a statute when it is not raised in a timely manner at the trial on the merits. Caylor v. Caylor, 344 So.2d 173 (Ala.Civ.App.1977). Thus, we will not allow a party to raise such an issue for the first time in a motion for new trial or on appeal. Dale v. Dale, 54 Ala.App. 505, 310 So.2d 225 (1975).

A motion for relief from judgment pursuant to Rule 60(b), ARCP is not a substitute for appeal, Marsh v. Marsh, 338 So.2d 422 (Ala.Civ.App.1976), nor do we consider it a method for raising a constitutional issue not timely presented at the trial on the merits. Thus, we agree with the trial court that the husband’s challenge of the alimony statutes by a 60(b) motion should not be sustained.

Moreover, we have previously responded to the issue presented by the husband’s motion in other cases. Ethridge v. Ethridge, 379 So.2d 87 (Ala.Civ.App.1979); Gartman v. Gartman, 376 So.2d 716 (Ala.Civ.App.1979); Thompson v. Thompson, 377 So.2d 141 (Ala.Civ.App.1979). We see no reason to repeat what we have said in those cases.

The husband contends that the award of both periodic alimony and the parties’ residence to the wife was unconscionable. The trial court considered and rejected this contention on motion for new trial in the original proceeding. The husband did not appeal that ruling. As pointed out above, Rule 60(b) is not a substitute for appeal. Marsh v. Marsh, supra.

The husband’s final argument is that the trial court’s denial of his petition to modify the decree due to changed circumstances was an abuse of discretion. We see no need for a lengthy recitation of the facts in this case. It suffices to say that the evidence in the record indicates an increase in income for both parties. When viewed in light of the presumption of correctness accompanying judgments rendered after oral hearing, we cannot find that the court’s order is so unsupported by the evidence as to be an abuse of discretion. Capra v. Capra, 56 Ala.App. 90, 319 So.2d 286 (1975).

The wife’s request for an attorney’s fee on appeal is granted in the sum of $500.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


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    Martha H. HOCUTT (Celeste Hocutt Hogan) v. A. M. HOCUTT, Jr.
    Civ. 2035.
    Court of Civil Appeals of Alabama.
    Jan. 9, 1980.
    Samuel Maples and Donald H. Brockway, Jr., of Corretti, Newsom & Rogers, Birmingham, for appellant.
    Richard H. Cater of Burnham, Klinefel-ter, Halsey & Love, Anniston, for appellee.
   BRADLEY, Judge.

The appellant, Martha H. Hocutt (Celeste Hocutt Hogan) (hereinafter referred to as “Mrs. Martha Hocutt”) appeals from a decision by the trial court granting summary judgment on the counterclaim of appellee, Mr. A. M. Hocutt, terminating his alimony obligations. Appellant also appeals from summary judgment granted appellee against Mrs. Hocutt’s petition to modify the divorce decree. We reverse.

Mr. and Mrs. Hocutt were divorced on February 9, 1973 with said decree granting to Martha Hocutt, among other things, $500.00 per month alimony, and a life insurance policy of $50,000.00 with Mrs. Hocutt named as irrevocable beneficiary. When Mr. Hocutt reached the age of seventy, it was agreed that the insurance policy would be reduced to $25,000.00.

On August 22, 1978 Mrs. Hocutt filed a petition to modify, as amended, seeking an increase in her alimony payments due to “changed circumstances” alleged in her petition. On March 12, 1979 Mr. Hocutt filed an answer and counterclaim to the petition generally denying Mrs. Hocutt’s allegations and counterclaiming that the Alabama divorce statute is unconstitutional. Mr. Ho-cutt requested the trial court to release him from any future alimony payments and from maintaining the insurance policy in her name. On this same day, i. e. March 12, 1979, Mr. Hocutt filed a motion for summary judgment. It should be noted that on March 5, 1979 the United States Supreme Court decided Orr v. Orr, 440 U.S. 268, 99 S.Ct. 1102, 59 L.Ed.2d 306 (1979), which was reversed and remanded to this court for further consideration and action. On March 28, 1979 Mrs. Hocutt filed a motion for a continuance to await pending Alabama legislative and judicial action before proceeding further. This was denied, and on May 2, 1979 the trial judge granted summary judgment in favor of Mr. Hocutt, holding that in light of the Orr decision by the United States Supreme Court, Mr. Ho-cutt is no longer obligated to make monthly payments or keep the insurance policy in force. A motion for reconsideration or in the alternative a motion for new trial was filed on May 16, 1979 by Mr. Hocutt. This was denied on July 31, 1979. As a result, Mrs. Hocutt filed an appeal with this court on August 27, 1979.

Appellant’s primary contention on this appeal is that the trial court committed reversible error when it summarily terminated appellee’s obligation to pay alimony based on the United States Supreme Court’s decision in Orr v. Orr. Secondarily, appellant says that the trial court erred in giving appellee a summary judgment on her request for a modification of the alimony payments.

If we decide that the Alabama alimony statutes are not unconstitutional and that the trial court erred in so holding, it follows that the trial court also erred in granting a summary judgment on appellant’s petition to modify.

The grant or denial of the relief requested in a modification petition depends on whether the petitioner proves a material change in circumstances since the divorce decree. Obviously such a decision must depend on the evidence adduced before the court in a hearing. The grant of a summary judgment forecloses such a hearing.

Returning to appellant’s primary contention that the trial court erred in summarily terminating her alimony payments based on the unconstitutionality of the Alabama alimony statutes, we note that this court, on remand of the Orr v. Orr case from the United States Supreme Court, extended the benefits of the alimony statutes to men as well as women and thereby neutered the gender of those statutes as authorized by the Supreme Court in the Orr case. See Orr v. Orr, Ala.Civ.App., 374 So.2d 895, cert. den., Ala., 374 So.2d 898 (1979). The effect of our decision was to extend the benefits of the Alabama alimony statutes to needy husbands as well as wives to the time of the United States Supreme Court’s Orr decision. Consequently, there never was a time when Mr. Hocutt was not obligated to provide the required support. Hence, the trial court erred in granting summary judgment to appellee on his counterclaim and against appellant on her modification petition. The trial court’s summary judgments are reversed and the cause remanded for a hearing on appellant’s petition to modify.

Appellant is awarded $500 for the services of her attorney on this appeal.

REVERSED AND REMANDED WITH INSTRUCTIONS.

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


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    Rebecca Joan Sieber BROWN, Individually and as Executrix of the Estate of William Henry Sieber, Deceased, v. Nell Jo SIEBER.
    Civ. 2039.
    Court of Civil Appeals of Alabama.
    Jan. 9, 1980.

      James F. Hinton, Gadsden, for appellant.
    Michael L. Roberts for Floyd, Keener & Cusimano, Gadsden, for appellee.
   WRIGHT, Presiding Judge.

This is an action by a widow to enforce the payment by a devisee of the sum of $6,000 in lieu of the right of homestead in the devised land.

This is a case of first impression in this state so far as we are able to determine. The facts are as follows: Plaintiff’s husband died testate. The only real estate owned at the time of death was his homestead consisting of a house and lot in Gadsden, Alabama. Defendant and others were devisees of the homestead under the will. An action was filed in circuit court by the devisees under authority of § 6-10-99, Code of Alabama (1975) to clear the property of the homestead right of plaintiff by the payment to her of $6,000. The action was prosecuted to judgment which, among other things, ordered plaintiff divested of her homestead rights in the property upon payment to her of $6,000 by the devisees.

Subsequently, defendant purchased the interest of the other devisees in the property. Plaintiff in expectation of payment and at the request of defendant, surrendered the key to the house and possession of the property to defendant. Defendant entered therein and exercised dominion and authority over it but failed to pay the $6,000 as she had requested and received judgment of the court to do. Requests by plaintiff for payment were not complied with, whereupon, plaintiff brought this action some eight months after the first judgment.

On July 9, 1979, the court, after oral hearing, granted judgment to plaintiff and' against defendant in the amount of $6,000 with interest of $397.50. Defendant has appealed. We affirm.

Defendant states the issue to be whether a widow entitled to homestead right may force a devisee of the property to use the right given under § 6-10-99 and pay her for her homestead right. We do not perceive that to be the issue under the facts.

In the prior action defendant asked for and received the aid of the court to declare and enforce her right as a devisee to remove the cloud of plaintiff’s homestead right from her title and her right to immediate possession of the devised property. The court gave her what she requested and thereby gave notice to plaintiff that she must accept its mandate. In response and in reliance upon the judgment, without insistence of prior payment, plaintiff gave up possession. Defendant entered into possession and exercised ownership. She thereafter decided not to complete the bargain she had undertaken.

Section 6-10 — 99 as pertinent is as follows:

Where a homestead right exists in property devised by will, the person . to whom said property is devised may clear the said property of such homestead right by paying . . ., in lieu of such right, the sum of $6,000 .

It is evident from the statute that the right to clear a homestead right from devised property belongs to the devisee, not the possessor of the homestead right. It is also evident from the statute that aid of court is not necessary to claiming its benefits. The defendant in this case chose to use the court. In doing so, we consider she obtained the benefit of the statute and thereby made a bargain. She caused plaintiff to substantially and materially change her position and suffer detriment. We find her estopped to deny her obligation to complete the transaction she undertook. U. S. Fidelity & Guaranty Company v. McKinnon, 356 So.2d 600 (Ala.1978); Maner v. Maner, 279 Ala. 652, 189 So.2d 336 (1966); Hendricks v. Blake, 291 Ala. 575, 285 So.2d 82 (1973).

There being no issue nor argument presented by the appeal as to the correctness of the judgment in the granting of interest on the sum of $6,000, or the requirement of sale of the property if payment is not made in thirty days, we do not address those aspects of the judgments.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


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    STATE of Alabama, DEPARTMENT OF INDUSTRIAL RELATIONS v. Thomas WILLARD.
    Civ. 2044.
    Court of Civil Appeals of Alabama.
    Jan. 9, 1980.
    George C. Cocoris, Harry Lyles, Montgomery, for appellant.
    William H. Rhea, III of Rhea, Boyd & Rhea, Gadsden, for appellee.
   EDWARD N. SCRUGGS, Retired Circuit Judge.

In this unemployment compensation case the parties stipulated all of the facts in the circuit court as follows:

Claimant was separated from his base period employer on March 4, 1975; he signed up for benefits on April 16, 1976; and his claim was subsequently denied by the Department of Industrial Relations and the State of Alabama Board of Appeals on the ground that claimant was ineligible to receive benefits because of insufficient base period wages within the meaning of Title 26, Section 213-E, Code of Alabama, Recompiled 1958.
Claimant’s base period employer reported the following wages to the Department as paid to the claimant during his base period employment.
4th quarter 1974 $ 972.86
1st quarter 1975 2,380.27
2nd quarter 1975 123.04
3rd quarter 1975 _ (No earnings reported)
Total $3,476.17
Claimant contends that he is eligible for unemployment compensation benefits in that he has adequate base period wages, and by agreement a letter dated September 30,1975, from the'employer to the claimant is submitted, which claims that $833.31 drawn by Thomas Willard on January 15, 1975, was actually earned in December, 1974. .
The State of Alabama contends that notwithstanding the above letter, the claimant’s base period wages do not satisfy the statutory requirements for eligibility, viz., 213-E, supra, in that a claimant must have been paid during the base period $525, and in addition been paid wages equal to or exceeding one and one-half times the total of wages paid to him in his highest quarter of such base period.
LEGAL QUESTIONS
The legal question to be determined by the court is does the claimant have adequate base period wages with his base period employer, within the meaning of Section 213-E, supra, so as to qualify him for unemployment compensation benefits. [Emphasis theirs.]

The learned trial judge rendered a judgment in favor of the employee. The Department of Industrial Relations appeals and contends that, under the provisions of the Unemployment Compensation Act of Alabama as it existed during the time of this controversy, the actual payment of wages governs eligibility to recover unemployment compensation and that wages earned or accrued, but not paid, should not be considered in computing such base period wages. The employee contends that he is entitled to the benefits awarded since accrued or earned wages should be included, along with wages actually paid, in such computation. We agree with the appellant.

This is a case of first impression in Alabama, but several sister states have decided almost identical or similar issues.

The closest case in point is Maryland Department of Employment Security v. Werner, 231 Md. 474, 190 A.2d 786 (1963), wherein the Court of Appeals of Maryland ruled that the actual date when wages were paid rather than when such wages were earned determines as to which quarter of the base year wages should be allocated. Their statute used the words, “During his base period he has been been paid for insured work.” For similar cases reaching substantially the same results in other states see also: Gordon v. Morgan, 20 Or. App. 69, 530 P.2d 522 (1975); Dickson v. Unemployment Board of Review, 205 Pa. Super. 468, 211 A.2d 51 (1965); Zubritsky v. Unemployment Compensation Board of Review, 202 Pa.Super. 347, 195 A.2d 854 (1963); Giammattei v. Egan, 135 Conn. 666, 68 A.2d 129 (1949).

The Alabama statutory amendments since 1961 have been substantially read, “He has during his base period been paid wages for insured work.” The similarity between the Alabama and Maryland statutes is striking.

In 76 Am.Jur.2d 916, Unemployment Compensation § 32 (1975), the rule is stated as follows:

With respect to the issue of whether an individual has earned sufficient wages in a given period to qualify for unemployment compensation benefits, it has been held that wages actually paid, rather than wages earned, within a statutory base period control eligibility for unemployment benefits. [Footnote omitted.]

We must determine the intent of our legislature in enacting the words now being construed.

In common usage “paid” means “discharged.” Such has long been the definition afforded such word by the Alabama courts. Waters v. Creagh, 4 Stew. & P. 410, 414 (1833). In the Zubritsky case, supra, the Pennsylvania court held that if the legislature intended to include an outstanding indebtedness, it would have used the word “payable” in addition to the word “paid” and that its failure to do so was a clear indication of its intention.

Regardless of common usage of words, on occasion the legislature has other meanings in mind when enacting legislation. Hence, we traced the legislative history of the Unemployment Compensation Act of Alabama.

The act was first codified in the Code of Alabama of 1940. Therein, Title 26, Section 213(E) set forth the base period eligibility requirement as, “He has during his base period earned wages for insured work.” (Emphasis supplied.) The same “earned wages” provision continued and was copied into the Code of Alabama, Recompiled 1958, also as Title 26, Section 213(E). Along with other changes in 1961 the legislature amended the statute so as to eliminate the words “earned wages” and replaced such words with the present “been paid wages” requirement in the base period eligibility section of the statute. Acts of Alabama 1961, Ex.Sess., Act No. 274, p. 2298, 2313. The “paid wages” language of the 1961 statute has been'retained by the legislature in subsequent legislation. Acts of Alabama 1965, Act No. 390, p. 548, 559; Acts of Alabama 1971, Act No. 88, p. 349, 352; Acts of Alabama 1975, Act No. 801, p. 1604, 1619; Code of Alabama 1975, § 25-4-77(5).

Based upon well reasoned decisions of other states, the common meaning of the word “paid,” and the legislative history of that portion of the legislative act in question, it is our decision that the legislature meant that an employee’s base period wages must be actually paid, not just earned, before they may be credited for purposes of base period eligibility to receive unemployment compensation benefits.

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 1975 Code of Alabama. His opinion is hereby adopted as that of the court.

For the foregoing reasons, the judgment of the trial court is reversed and one rendered here holding the claimant, Thomas Willard, ineligible to receive unemployment compensation benefits.

REVERSED AND RENDERED.

All the judges concur.


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    CHRYSLER CREDIT CORPORATION v. STATE of Alabama and Jack M. Nolen, an Assistant District Attorney.
    Civ. 1929.
    Court of Civil Appeals of Alabama.
    Jan. 16, 1980.

      Charles R. Johanson, III, of Engel, Hair-ston, Moses & Johanson, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen., Samuel J. Clenney, III, Asst. Atty. Gen., for appel-lees.
   BRADLEY, Judge.

Chrysler Credit Corporation (hereinafter referred to as “Chrysler”) appeals from a final judgment by which a 1978 Dodge Tradesman van was condemned to the State of Alabama, and from an order of April 17, 1979 overruling the motion for new trial. We reverse.

On July 20, 1978 Denver S. Loggins purchased a 1978 Dodge B200 Tradesman van, vehicle identification number B21BE8X10882 from Crimson Dodge in Tuscaloosa, Alabama. The car dealer called Mr. Loggins’ credit history in to Mr. Rick D. Morris, Chrysler’s customer services supervisor in Birmingham, who testified that he followed corporate procedure in checking into Mr. Loggins’ credit. Chrysler states that it conducted an independent investigation and also checked with the credit bureau in Mr. Loggins’ residence area. The information they received consisted of Denver Loggins’ age, residence, parents’ name, his job occupation, as well as a record of his other purchases on credit. The investigation revealed that Mr. Loggins was a suitable credit risk and gave no reason to cause suspicion that the car would be used illegally or that Mr. Loggins possessed a record or reputation for law violations.

Chrysler purchased the contract from the car dealership and Chrysler was listed as first lienholder on the certificate of title, retaining a security interest in the van until the completion of its purchase price.

Around the first of January 1979, Michael Robison, Mr. Loggins’ brother-in-law, was arrested for transporting two hundred cases of beer illegally in Fayette County. Denver Loggins was not in the van with his brother-in-law at the time of the arrest, nor has he been charged in connection with the illegal liquor transportation.

The dispositive issue for our consideration is whether Chrysler had knowledge or notice of the illegal use of the vehicle, or could have obtained such by the exercise of reasonable diligence.

The rule is that once the State makes out a prima facie case showing a violation of the statute which prohibits the transportation of illegal liquors, the seizure, condemnation, and forfeiture of the vehicle is permitted. An owner-claimant to a vehicle must prove he, she or it had no knowledge of the illegal use of the vehicle and by the exercise of reasonable diligence could not have obtained knowledge of such intended use. U-Haul Co. of Alabama v. State, 294 Ala. 330, 316 So.2d 685 (1975).

Evidence of a purchaser’s bad general reputation for dealing in prohibited liquors tends to give notice of the probable future use of the vehicle for the illegal transportation of intoxicating liquors. Alabama Discount Corp. v. State, 271 Ala. 338, 123 So.2d 416 (1960). However, for the purchaser’s bad reputation to be notice or knowledge imputed to claimant so as to constitute culpable negligence in allowing purchaser to obtain the vehicle, the bad reputation must be a general reputation. Furthermore, the reputation must exist at the purchaser’s place of residence, or at his place of business or occupation, and must have existed at the time the vehicle was sold. Mars v. State, Ala.Civ.App., 340 So.2d 1131 (1976).

In the present case Chrysler obtained information from- a credit bureau and conducted a limited credit check, the results of which gave no reason to suspect that the vehicle would be used for an illegal purpose. There was no evidence whatsoever as to the general bad reputation of Log-gins at his place of business or his residence for dealing in illegal whiskey; consequently, Chrysler had no reason to make inquiry about possible charges against Loggins for violating the prohibition laws.

There was testimony by the sheriff of the county where the arrest of the driver of the van was made that he had talked to law enforcement officers in Marion County, Alabama — Loggins’ home county — and they had told him that Loggins had a reputation amongst them for dealing in illicit whiskey. These opinions were apparently based on arrest records for various whiskey violations. Such testimony, however, does not amount to the required general bad reputation in the community and will not put claimant on notice to inquire further about the possible illegal use of the vehicle it was financing. Commercial National Bank of Anniston v. State, 251 Ala. 409, 37 So.2d 644 (1948). Accordingly, we conclude that the evidence fails to show that Chrysler was culpably negligent in financing the vehicle for Loggins. Chrysler was entitled to the establishment of its claim and it is so ordered.

REVERSED AND RENDERED.

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


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    William Martin RAY v. Martha Gayle RAY.
    Civ. 1963.
    Court of Civil Appeals of Alabama.
    Jan. 16, 1980.
    Clarence T. Heliums, Jr., Tuscaloosa, for appellant.
    Robert V. Wooldridge, of Wooldridge & Wooldridge, Tuscaloosa, for appellee.
   HOLMES, Judge.

This is a divorce case.

The Circuit Court of Tuscaloosa County divorced the parties, awarded custody of the two children to the wife, and required the husband to pay child support. Additionally, the wife was awarded the home with the husband to pay the monthly mortgage payments, taxes, and insurance on the home. Certain personal property was awarded to the wife and the husband was ordered to pay the wife’s attorney a fee. There was no award of periodic alimony to the wife.

The husband appeals and we affirm.

The husband contends the trial court abused its discretion in the division of property. The husband also contends the trial court erred in awarding an attorney’s fee to the wife’s attorney as there was no proof of the value of the attorney’s services.

A review of the record reveals the following:

The parties owned a home with an unpaid mortgage of $8,500. The home was originally purchased for $13,000. At the time of the divorce the home had a value of approximately $30,000. The only other significant assets owned by the parties consisted of two relatively old automobiles and household goods.

At the time of the divorce the husband had a fulltime job and the wife worked part time.

The trial court awarded the home and a substantial portion of the personal property to the wife. The husband was, however, awarded an automobile, a television set, and tools.

As indicated above, the husband contends that this division of property was error.

At the outset, we note that a division of property is a matter for the discretion of the trial court and will not be disturbed on appeal except upon a showing of plain and palpable abuse. Cobb v. Cobb, Ala.Civ.App., 352 So.2d 1384 (1977).

The division of property is not required to be equal but is to be graduated according to the nature of the case. Bailey v. Bailey, Ala.Civ.App., 345 So.2d 304 (1977).

When considering a-division of property, the trial court may consider certain factors depending upon the facts of a particular case. Among these factors is whether there are children to support. Bailey, supra. Clearly, in this instance, the support of the two children of the parties was an important consideration in the trial court’s award.

In this instance, where the only asset of any consequence owned by the parties was their residence and the wife was granted custody of the parties’ two minor children, awarding the wife the homeplace where she will apparently reside with the children was not error. See, Eubanks v. Eubanks, 52 Ala.App. 224, 291 So.2d 159 (1974).

Next, the husband contends that it was error to award the wife’s attorney a fee because no testimony was offered regarding time spent, work done, or the value of services performed.

However, it is clear that an attorney’s fee may be allowed in the discretion of the trial court without proof of reasonableness where the trial court has the entire record before it and determines that the circumstances justify an allowance of such a fee. Hodson v. Hodson, 276 Ala. 227, 160 So.2d 637 (1964); Godec v. Godec, Ala.Civ.App., 346 So.2d 459 (1977). See also, Tidwell v. Tidwell, Ala.Civ.App., 379 So.2d 614 (1980). There was no error.

In addition to the above, the husband apparently contends that in view of Orr v. Orr, 440 U.S. 268, 99 S.Ct. 1102, 59 L.Ed.2d 306 (1979), there was no basis for the trial court to make the award as indicated. We find no merit in this contention. We note that our review of the record reveals there was no alimony award but only a division of property. However, even assuming there was such an award, the decision in Orr v. Orr, Ala.Civ.App., 374 So.2d 895, cert. den., Ala., 374 So.2d 898 (1979); and Hocutt v. Hocutt, Ala.Civ.App., 379 So.2d 619 (1980) negate any infirmity that may have existed.

The wife has requested an attorney’s fee on appeal. The amount of $500 is so awarded.

This case is due to be affirmed.

AFFIRMED.

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