text:
    JENKINS BRICK COMPANY v. Carl WALDROP.
    Civ. 2115.
    Court of Civil Appeals of Alabama.
    May 21, 1980.
    Sterling G. Culpepper, Jr. and Julia S. Waters of Smith, Bowman, Thagard, Crook & Culpepper, Montgomery, for appellant.
    W. W. Haralson of Weeks, Weeks, & Har-alson, Scottsboro, for appellee.
   BRADLEY, Judge.

The appellant, Jenkins Brick Company, is appealing from a lower court holding in favor of the appellee, Carl Waldrop. We reverse.

Waldrop is a building contractor from Scottsboro, Alabama. He has been in this business for approximately ten years and has built an estimate of fifteen to twenty houses during this time.

Mr. Waldrop started construction on a home for Mr. and Mrs. Woods and had ordered sixteen thousand “Old South” brick from C & H Supply Company on February 10, 1977. C & H bought its brick from Jenkins Brick Company in Montgomery.

The brick for the Woods home had been sent by Jenkins in two batches. The first batch was sent on February 18, 1977. The second batch, however, was rejected by Waldrop because the color of the second batch did not match the color of the first batch of brick.

Jenkins sent two batches consisting of six thousand brick in each batch to help Wal-drop in matching up the colors of the ten thousand brick already laid on the Woods home. The third batch of six thousand was acceptable and the Woods home was completed.

During this time, Mr. Larry Harris, a salesman for Jenkins brick went out to the Woods home to see about the brick matching problem. During a conversation between Harris and Waldrop, Mr. Waldrop mentioned another home construction he had agreed to do for a Mr. and Mrs. Wilkie. Waldrop mentioned that the brick the Wilk-ies wanted on their home was the same brick they had seen on a particular bank.

Mr. Harris left to look at the bank and returned that afternoon, stating the brick was “Old South” brick, the same as Wal-drop had used on the Woods home.

It was also during this conversation that Mr. Harris explained the differences in each different “run” of brick due to the clay, the process of “flashing” the brick with gas versus oil, and use of the kilns. Mr. Wal-drop testified he was aware of the brick coloration variations due to his years of experience in the construction business.

Waldrop testified that he agreed with Harris that he (Waldrop) would buy the twelve thousand leftover brick for the Wilkie job. Harris denies that such agreement existed.

Waldrop began laying the twelve thousand brick on the Wilkie home in July 1977. After eighty-five percent of the Wilkie home had been bricked, Waldrop realized he had miscalculated the amount of brick he needed, and was short by two thousand brick. When Waldrop realized his mistake, he ordered his brick layers to stop work, leaving fifteen hundred of the original twelve thousand brick unlaid.

Waldrop knew that any additional brick he ordered would have a difference in color and planned to blend the additional brick he ordered with the fifteen hundred unlaid brick. Waldrop testified this was a customary procedure in the construction business.

Waldrop admitted he had meant to order the brick all at the same time but did not due to his calculation mistake.

Jenkins did not have any brick left from the run from which the original twelve thousand had come, and therefore sent two thousand brick from another run. Waldrop accepted this brick and ordered his brick layers to begin interspersing the new shipment with the remaining fifteen hundred brick.

However, when the new owners saw the result of the new brick interspersed with the original shipment, they ordered the brick layers to stop work. The Wilkies informed Waldrop they found the new brick unacceptable because of a distinct color line. Mrs. Wilkie testified she had been happy with the bricking up until this point.

Jenkins made two sample runs of two thousand brick to try to match the first shipment of twelve thousand brick. The Wilkies also found these two shipments unacceptable.

Waldrop finally had to tear all of the old brick off the Wilkie house, purchase new brick from another company, and rebrick the house. Waldrop testified this cost him an additional $3,600.00. He ended up giving the Jenkins brick to his brother to use.

The trial court found for the plaintiff, Waldrop, holding that privity of contract existed between Waldrop and Jenkins on which to base this suit. The court further found there was an implied warranty of merchantability and an implied warranty of fitness for a particular purpose which was breached by Jenkins. There was a further finding that the brick initially accepted by Waldrop was later rightfully revoked and that Waldrop sustained damages in the amount of $3,600.00.

The appellant, Jenkins, claimed error by the trial court as to these findings.

The first issue raised by Jenkins on appeal is whether the trial court erred in finding that privity of contract existed between Jenkins and Waldrop.

The general rule in Alabama is that there is no right of action on an implied warranty of merchantability or fitness of use against a manufacturer for property damage without privity of contract. Wear v. Chenault Motor Co., 52 Ala.App. 382, 293 So.2d 298, cert. den., 292 Ala. 756, 293 So.2d 301 (1974).

Waldrop contends that privity existed because of the meeting he had with Harris. Waldrop testified that Harris agreed to sell him the twelve thousand brick, and that subsequently, Jenkins moved the brick from the Woods job to the Wilkie job. Ben Young, executive vice-president of Jenkins Brick, also testified that Larry Harris was a salesman for Jenkins and had authority to sell brick. We think the evidence is sufficient to support a finding of privity of contract between Jenkins and Waldrop as to these twelve thousand brick. However, these brick were satisfactory to the Wilkies, and it was only the final two thousand brick ordered by Waldrop that were objectionable to the Wilkies. These two thousand brick are the basis of this lawsuit. Therefore, if Waldrop is to recover for breach of warranty, he must establish privity between himself and Jenkins as to the last two thousand brick purchased for the Wilkie job.

There was no evidence at trial establishing a privity relationship between Wal-drop and Jenkins for the purchase of the final two thousand brick. Waldrop testified that his agreement with Harris was for the purchase of only twelve thousand brick and that he had ordered no additional brick at this time because he did not know how many more he would need for the Wilkie job. In fact, Waldrop admitted that he probably ordered the final two thousand brick from C & H Supply Company. Wal-drop has offered no evidence showing any type of contractual relationship between himself and Jenkins as to these brick. The evidence indicates that Jenkins and Wal-drop were in privity as to the first twelve thousand brick purchased, but that Jenkins satisfactorily performed its obligation as to these brick. It was only after Waldrop discovered that he had miscalculated the number of brick he would need for the Wilkie job that a problem arose. The agreement between Jenkins and Waldrop was for twelve thousand brick only, and in order to establish privity, Waldrop must produce evidence indicating some type of contractual relationship between himself and Jenkins as to the last brick purchased. He has not done so. Therefore we think that Waldrop failed to establish any privity of contract as to the two thousand brick made the basis of this lawsuit. As there was no evidence to support a finding of privity of contract in the case at bar between Jenkins Brick Company and Mr. Waldrop, the trial court erred in so finding.

The only remaining issue for our determination is whether Jenkins breached an implied warranty of merchantability and an implied warranty of fitness for a particular purpose as to the first twelve thousand brick purchased by Waldrop. We previously noted that the trial court correctly found Jenkins and Waldrop to be in privity of contract as to these brick.

In an action for breach of an implied warranty, the plaintiff must prove the existence of the implied warranty, a breach of that warranty, and damages proximately resulting from that breach. Storey v. Day Heating & Air Conditioning Co., 56 Ala.App. 81, 319 So.2d 279 (1975).

There is no evidence in the record indicating that Jenkins breached an implied warranty as to the first twelve thousand brick purchased. After Waldrop had placed these brick on the house, the Wilkies stated that they were satisfied. Furthermore, Waldrop never raised any objection as to these twelve thousand brick. As previously noted, it was only when the last two thousand brick were placed on the house that there was a problem. Therefore we conclude that plaintiff failed to prove a breach of warranty as to the brick delivered to and accepted by him and his client.

In the absence of a breach of warranty for the brick accepted by plaintiff, the trial court was without authority to award damages. Consequently, the judgment of the trial court is reversed and the cause remanded for entry of judgment not inconsistent with this opinion.

REVERSED AND REMANDED WITH DIRECTIONS.

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


source: Caselaw Access Project

author: BRADLEY, Judge.

license: Public Domain

text:
    STATE of Alabama ex rel. Charles HOOPER, Assistant District Attorney of the Twenty-third Judicial Circuit of Alabama v. 50 CASES OF 12 OZ. MILLER BEER, 50 Cases of 12 oz. Schlitz Beer, 120 Pints of Canadian Mist Whiskey, 240 Pints of Evan Williams Whiskey, 24 Pints of Seagrams Gin, 96 Pints of Glenmore Vodka.
    Civ. 2159.
    Court of Civil Appeals of Alabama.
    May 21, 1980.
    Charles Hooper, Asst. Dist. Atty., Huntsville, for appellant.

      No brief for appellee.
   BRADLEY, Judge.

This is an appeal by the State of Alabama from a decree of the circuit court which refused to grant an order condemning and ordering the destruction of 50 cases of twelve ounce Miller beer, 50 cases of twelve ounce Schlitz beer, 120 pints of Canadian Mist Whiskey, 240 pints of Evan Williams Whiskey, 24 pints of Seagrams Gin, and 96 pints of Glenmore Vodka.

The alcoholic beverages had previously been seized while in the possession of a minor who was transporting the alcoholic beverages in a van-type vehicle in a wet county. The minor was charged with violation of Code of Alabama 1975, § 28-3-266, which provides that it shall be unlawful for a minor to possess “any alcohol, liquor or malt or brewed beverages within the state of Alabama.” The minor pled guilty to the possession charge and was fined $200 and ordered to pay court costs.

At the condemnation hearing, an interve-nor, Travis Ray Day, claimed ownership of the seized alcoholic beverages. Mr. Day testified that he had borrowed a van belonging to Betty or Robert Wright to transport the alcoholic beverages which he had previously purchased for a wedding party. Mr. Day further testified that when he returned the van to the Wrights, he did not remove the alcoholic beverages from the van and did not inform the Wrights of this fact. Thereafter the Wrights’ son, the aforementioned minor, was charged with possession of the alcoholic beverages.

The State established at the condemnation hearing that the alcoholic beverages sought to be condemned had been seized while in the possession of a minor and that he had pled guilty to the possession charge.

The trial court found that the alcoholic beverages were not contraband and determined that Travis Ray Day was the rightful owner of the confiscated beer and liquor.

The first issue presented to this court is whether alcoholic beverages seized while unlawfully in the possession of a minor are contraband goods subject to condemnation by the State.

Code of Alabama 1975, § 28-4-250 defines the term “contraband” as it is used in connection with the condemnation of alcoholic beverages as follows:

Prohibited liquors and beverages kept, stored or deposited in any place in this state for the purpose of sale or unlawful disposition or unlawful furnishing or distribution and the vessels and receptacles in which such liquors are contained are declared to be contraband .

Contraband has also been judicially defined as alcoholic beverages illegally possessed, sold, or otherwise disposed of contrary to law. Lovett v. State, 30 Ala.App. 334, 6 So.2d 437 (1941), cert. den., 242 Ala. 356, 6 So.2d 441 (1942). In the present case the beer and liquor were in the possession of a juvenile, which made the possession thereof unlawful and subjected it to confiscation as contraband. Thus, the State established a prima facie case for condemnation of the beer and whiskey.

The final issue raised on this appeal is whether the trial court imposed a higher burden of proof on the State than is required in a condemnation proceeding. The State argued that the trial court’s statement that all “maybes” were to be resolved against the State had the effect of requiring the State to prove not only that the alcoholic beverages were subject to condemnation, but also that the intervenor was not the owner of the beverages and thus not entitled to receive possession of them.

The rules of evidence in civil actions govern in condemnation proceedings. Lovett v. State, supra.

As previously noted, the State established that the alcoholic beverages were being illegally possessed by a minor when seized. The burden of proof was then shifted to the intervening owner or claimant to establish ownership of the alcoholic beverages. See Mars v. State, Ala.Civ.App., 340 So.2d 1131 (1976).

To support his claim of ownership, the intervenor testified that he had borrowed a van-type vehicle from the mother of the juvenile in question to transport some beer and whiskey that he had purchased for a wedding party. The vehicle, containing the beer and whiskey, was returned to Mrs. Wright, the mother of the juvenile. The mother was not informed of the contents of the vehicle. The next morning the juvenile took the van to get the wedding cake for his sister’s wedding, and, during the trip, he was apprehended for being in possession of the beer and whiskey.

There was testimony offered by the State in rebuttal that the father of the juvenile had a reputation among law enforcement officers of supplying beer and whiskey to bootleggers in adjoining counties.

At the conclusion of the hearing, the court did say that it considered that all “maybes” should be resolved against the State. However, the court went on to explain what it considered “maybes.” As were view the court’s statements, the only rational conclusion to be gained from its explanation is that the court had heard evidence that produced conflicting inferences and that those inferences were being resolved in favor of the intervenor, Travis Day. Furthermore, the evidence supports the trial court’s resolution of those inferences. Therefore we do not find that the trial court placed a greater burden of proof on the State than is required in a condemnation case. The judgment of the trial court is affirmed.

AFFIRMED.

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


author: HOLMES, Judge.

text:
    ALABAMA FARM BUREAU MUTUAL CASUALTY INSURANCE COMPANY, INC., a corporation v. Edward H. PRESLEY.
    Civ. 2138.
    Court of Civil Appeals of Alabama.
    May 28, 1980.

      Thomas M. Galloway, Jr. of Collins, Galloway & Smith, Mobile, for appellant.
    Edward B. McDermott of McDermott, Deas & Boone, Mobile, for appellee.
   HOLMES, Judge.

This is an insurance case.

The plaintiff sued the defendant-insurance company to recover the proceeds from three policies of insurance. The trial court, on stipulated facts, entered a judgment for $6,000 in favor of plaintiff and against the defendant-insurance company. The defendant-insurance company appeals and we affirm.

The plaintiff, apparently while a pedestrian, was struck by an automobile. As a result of his injuries the plaintiff incurred medical costs in excess of $6,000.

At the time of plaintiff’s injury, he had three separate policies of insurance with defendant-insurance company covering three different motor vehicles. In each policy, the medical pay provisions of the policy limits were $2,000. A separate premium was charged for each policy. The effective dates of the policies were different and all policies were in force and effect at the time of plaintiff’s injury.

Each policy contained the following pertinent provisions:

To pay the reasonable expense of necessary medical, dental, x-ray, eyeglasses, hearing aids, surgical, ambulance, hospital, professional nursing, funeral services and prosthetic devices, all incurred within one year from date of accident to or for:
. each insured who sustains bodily injury . . . caused by accident, while in or upon, or while entering into or alighting from, or through being struck by, an automobile. .

and

The limit of liability for Coverage C stated in the declarations as applicable to “each person” or on behalf of each person is the limit of the Company’s liability for all expenses incurred by or on behalf of each person who sustains bodily injury, including death resulting therefrom, in any one accident.

The trial court, as indicated above, entered judgment for the plaintiff for $6,000.

The dispositive issue on appeal is: Do the terms of the policies, under the instant facts, permit or authorize the insured to collect the sum of the medical benefits declared to be payable for each vehicle insured? Put another way, do the policies in this instance permit “stacking” of medical benefits when more than one vehicle is insured.

This court, in United Services Automobile Association v. Smith, 57 Ala.App. 506, 329 So.2d 562 (1976), has previously considered the issue of whether an insured may “stack” medical benefits when more than one vehicle is insured. In Smith, supra, the insured had a single policy of insurance covering four vehicles and separate premiums were charged for medical benefits as to each vehicle.

The limiting language contained in the policy in Smith, supra, was as follows:

The limit of liability stated for Coverages C-l, C-2, C-3, and C-4 in the Declarations as applicable to “each person” is the limit of the company’s liability for all benefits to accrue to each person who sustains bodily injury as the result of any one accident. The inclusion of more than one automobile under Item 3 in the Declarations of the policy, or the issuance to the same named insured of two or more policies with this endorsement, shall not operate to increase the limit of the company’s liability per person beyond that stated in the Declarations. 57 Ala.App. at 508, 329 So.2d at 563.

In Smith, supra, Presiding Judge Wright opined for a unanimous court that the issue of “stacking” regarding medical benefits must be determined by the ordinary rules of construction applied to insurance contracts. In that case, this court followed the rule that a policy clear, unambiguous, and without conflict must be construed as it reads, the reviewing court being without authority to change the plain language of the policy or to make a new contract for the parties. Cotton States Life Ins. Co. v. Knowles, 45 Ala.App. 607, 234 So.2d 886 (1970).

This court there concluded that the limiting language, as quoted above, disclosed no ambiguity. That is, the policy clearly stated that coverage of more than one vehicle under one policy would not increase the limit of liability per person as stated in the declaration. Therefore, pursuant to the clear language of the policy, “stacking” was not permitted.

An examination of the policies in the instant case, however, does not reveal such clear language. That is, the language of the policies in question as set out above does not unequivocally or clearly exclude “stacking” of medical benefits as was the case in Smith, supra. From a reading of the mutual policies, it is unclear whether $2,000 is the total limit of liability for all three policies combined or whether the liability is limited merely to $2,000 as to each policy and “stacking” is permitted. That is, there is an ambiguity as to whether the “limit of liability,” ($2,000), for “each person” under any one policy is also to be the “limit of the company’s liability” no matter how many policies are issued and premiums paid. As we perceive the pertinent language, the policies can be construed to require the maximum payment of $2,000 on each policy when the insured’s medical bills exceed that amount.

Therefore, we resort to the ordinary rules of construction applicable in such a situation. Paramount among these is the rule in Alabama that, when a policy is susceptible to two or more constructions, the one most favorable to the insured should be adopted. Centraal Stikstof Verkoopkanter, N. V. v. Walsh Stevedoring Co., 380 F.2d 523 (5th Cir. 1967). Put another way, ambiguities in an insurance contract are to be construed against the insurer and for the insured. Billups v. Alabama Farm Bureau Mut. Cas. Ins. Co., Ala., 352 So.2d 1097 (1977).

Applying these principles, we note there are a number of cases from other jurisdictions which have construed similar policies covering more than one automobile with medical pay benefits attending each automobile with specified premium charges for each, as permitting stacking. See, Government Employees Ins. Co. v. Sweet, 186 So.2d 95 (Fla.App.1966); Kansas City Fire & Marine Ins. Co. v. Epperson, 234 Ark. 1100, 356 S.W.2d 613 (1962); Travelers Indemnity Ins. Co. v. Watson, 111 Ga.App. 98, 140 S.E.2d 505 (1965); Southwestern Fire & Cas. Co. v. Atkins, 346 S.W.2d 892 (Tex.Civ.App.1961); Virginia Farm Bureau Mutual Ins. Co. v. Wolfe, 212 Va. 162, 183 S.E.2d 145 (1971); Harris v. Employers Mutual Cas. Co., 33 Colo.App. 314, 519 P.2d 1227 (1974). See also, Annotation, 21 A.L.R.3d 900.

In Atkins, supra, a clause very similar to the one in the instant case was interpreted to apply to each car separately and independently and the clause was held to mean that the insured was entitled to the limit of each vehicle multiplied by the number of covered vehicles.

This is a fair and reasonable construction of the policies in the instant case and effectuates the policy of liberal interpretation in favor of the insured. Billups, supra. Thus, we construe the limit of liability clause herein to mean that the company is not liable beyond $2,000 on each policy and that, in this instance, the insured is entitled to the $2,000 limit multiplied by the three policies in force, since the insured’s expenses exceeded $6,000.

If the insurance company intended to limit medical payments to the amount of $2,000 which a policy on only one vehicle would provide, it could have so stipulated in no uncertain language. See, Smith, supra.

As indicated earlier, in this instance, a separate premium was paid on each policy and it is reasonable to think that the separate premiums charged for each vehicle were intended to afford some corresponding added benefit to the insured. Therefore, we find the policies in this instance and under these facts were not limited to $2,000. See, Atkins, supra.

We also note that the facts of the instant case are distinguishable from Smith, supra, and even the cases we have previously cited from other jurisdictions in one important aspect. In the instant case, there are three separate policies covering three vehicles. Our research indicates that the other cases considering the legal issue at bar have involved a single policy covering multiple vehicles. In Atkins, supra, where a single policy covered two automobiles, the Texas court stated:

There could be no question that if separate policies had been written by appellant the insured could recover $500 medical payments on each car since the total medical expenses exceed $1,000. (Emphasis supplied.) 346 S.W.2d at 894.

See also, Epperson, supra; Odom v. American Ins. Co., La., 213 So.2d 359, 363 (1968).

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

AFFIRMED.

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

      . Judge Holmes, although not sitting at oral argument, listened to the tapes of oral argument.


author: WRIGHT, Presiding Judge.

text:
    Ewell Argene GILES v. Dora Geraldine GILES.
    Civ. 2150.
    Court of Civil Appeals of Alabama.
    May 28, 1980.
    Wayne H. Smith, Heflin, for appellant.

      John S. Casey, Heflin, for appellee.
   WRIGHT, Presiding Judge.

This is a divorce case.

The husband filed a complaint for divorce on the grounds of incompatibility on March 3,1979. A decree was entered on March 14, 1979, granting the divorce and incorporating an agreement of the parties as to child custody and support, alimony, and a property settlement.

On April 12, 1979, the wife filed a motion to alter or amend judgment and for new trial. The trial court set the decree aside and granted a new trial.

After trial the trial court entered a decree granting the divorce. The decree awarded custody of the parties’ minor child to the wife and ordered the husband to pay $60 each two weeks as child support, to maintain medical insurance on the child and to maintain the child as beneficiary of his life insurance. The wife was awarded title to the parties’ house subject to a mortgage which she was to assume, the furnishings in the house and an automobile subject to a lien which she was to pay. The husband was to pay $150 per month alimony for thirty months.

The decree further provided that 3.3 acres held jointly by the parties was to be sold and the proceeds divided between them.

The husband appeals contending that the trial court abused its discretion in its division of property and awards of alimony and child support.

Though the award to the wife is liberal considering the assets of the parties, the trial court is afforded wide discretion in its judgment in divorce cases. That discretion is assumed to be correctly applied upon appeal and the judgment will be reversed only where clearly wrong and unjust. Thompson v. Thompson, 377 So.2d 141 (Ala.Civ.App.1979).

In exercising its discretion, the trial court may consider many factors. On appeal this court looks only to see if the resulting decree is supported by the evidence. Gamble v. Gamble, 363 So.2d 790 (Ala.Civ.App.1978).

We have carefully considered the record in this case and we cannot say that the judgment of the trial court is so unsupported by the evidence as to be clearly wrong and unjust. We find our statements in Thompson and Gamble to be dispositive of this case. The trial court’s judgment is affirmed.

The wife’s request for attorney’s fees on appeal is granted in the amount of $500.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


text:
    AAA SEWING MACHINE COMPANY, James O. Davis and James D. Davis, a/k/a James Michael Davis v. SHELBY FINANCE COMPANY, INC., a corporation d/b/a Shelby Discount Company.
    Civ. 2162.
    Court of Civil Appeals of Alabama.
    May 28, 1980.

      Sheldon Perhacs, Birmingham, for appellant.
    Arthur P. Bolton, III, of Foster, Conwell & Bolton, Birmingham, for appellee.
   BRADLEY, Judge.

AAA Sewing Machine Company, James O. Davis and James D. Davis appeal from the refusal of the trial court to set aside a default judgment. We affirm.

AAA Sewing Machine Company, made up of James D. and James O. Davis, had entered into an agreement with Shelby Finance Company, Inc., a corporation, doing business as Shelby Discount Company, whereby certain retail purchase agreements for sewing machines would be sold and assigned to Shelby Finance. The agreement also provided that the retail credit contracts could be resold by Shelby Finance to AAA Sewing Machine Company.

On October 20, 1975 Shelby Finance filed an action in the Circuit Court of Jefferson County against AAA Sewing Machine Company, James D. Davis and James O. Davis seeking damages for the breach of the agreement whereby AAA Sewing Machine Company would repurchase certain retail credit contracts. On December 11, 1975 a default judgment was rendered in favor of Shelby Finance and against James O. Davis for the relief sought in the complaint filed on October 20, 1975 and numbered 51033.

On June 10,1976 the appellants here filed an action in Circuit Court of Jefferson County asking that the default judgment in case number 51033 be set aside and requesting other equitable relief relating to Shelby Finance Company’s alleged breach of contract.

The dispositive issue on this appeal is whether the trial court committed reversible error by refusing to set aside the default judgment. We find that it did not so err.

Appellants contend here that the default judgment is void for lack of proper service of process on James O. Davis. They say that since proper service was not perfected, he had no notice or knowledge of the action filed against him. They further argue that if James 0. Davis had been properly notified of the action pending against him, he could have presented meritorious defenses such as fraud and breach of contract against Shelby Finance.

After an ore tenus hearing, the trial court on November 13, 1979 rendered a final judgment in which it found that James 0. Davis had been personally served and that he did not have a meritorious defense to the action filed against him by Shelby Finance Company; consequently the trial court refused to set aside the default judgment.

The first issue here is whether service of process was properly perfected on James 0. Davis in action No. 51033.

James 0. Davis claimed he never received the summons and complaint from Jefferson County Deputy Sheriff Jesse L. Perry. His daughter, Belinda Davis, testified she was served and in turn gave it to her brother, James D. Davis. She testified she never mentioned it to her father, James 0. Davis, nor apparently did her brother, James D. Davis.

The deputy, however, testified that he served James 0. Davis personally at 4100 49th Court North, in Birmingham. Deputy Perry gave a physical description of the older Davis. Perry said that James D. Davis was not the man he served, that the man he served was older. Perry also identified his own signature on the return of service.

A strong presumption of correctness attends a sheriff’s return, and the party challenging it has the burden of establishing lack of service by clear and convincing proof. Howard v. Drinkard, 261 Ala. 555, 74 So.2d 704 (1954). In addition, when the trial court hears the witnesses ore ten-us, the conclusion of the trial judge will be affirmed if it is fairly supported by credible evidence under any reasonable aspect, and is not palpably wrong or manifestly unjust. Whitt v. McConnell, Ala., 360 So.2d 336 (1978).

We think the evidence supports the trial court’s finding that the deputy sheriff served the complaint in the instant case upon James 0. Davis.

The second issue is whether the trial court abused its discretion in holding that the court which had rendered the default judgment against James 0. Davis had possessed personal jurisdiction over him.

Mr. Davis contends that Raine v. First Western Bank, Ala., 362 So.2d 846 (1978) is controlling. In Raine the court held that uncorroborated testimony of a party against which a default judgment has been rendered is insufficient to overcome the presumption of the validity of a sheriff’s return.

Mr. Davis argues that in the case at bar there was corroborated testimony and that therefore the trial court abused its discretion. It is agreed that there was testimony corroborating his claim of lack of service; however, there was also contradictory testimony by the deputy sheriff.

In Stewart v. Stewart, Ala.Civ.App., 354 So.2d 816 (1977) we noted the rule governing the resolution of a conflict in testimony:

A determination as to the weight to be given testimony presented to a trial court while that court is sitting as a trier of fact is fully within the discretion of the court since one of the primary functions of a trier of fact is to weigh the evidence before it and reach its conclusions according to the weight given to each portion of evidence presented.

We think the trial court weighed the evidence and properly found that the court rendering the default against James 0. Davis had personal jurisdiction over him. Therefore we can find no abuse of discretion.

The final issue is whether the trial court erred in holding that James 0. Davis was required to show a meritorious defense as a prerequisite to the setting aside of the default judgment.

Mr. Davis argues that if the judgment in the instant case is void, he does not have to show a meritorious defense to attack the judgment under Rule 60(b)(4), ARCP. We think this to be the law. See, Raine v. First Western Bank, supra. However, we have previously stated that the trial court was correct in finding that the service of process on James 0. Davis was adequate. Therefore, the judgment is not void, and the trial court did not err in holding that Mr. Davis had to show a meritorious defense before the default judgment could be set aside.

The judgment of the trial court is affirmed.

AFFIRMED.

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


text:
    The GOODYEAR TIRE AND RUBBER COMPANY v. Mr. and Mrs. Elmor DAVIS, Jr.
    Civ. 2163.
    Court of Civil Appeals of Alabama.
    May 28, 1980.
    James D. Pruett and Robert D. McWhorter, Jr., Gadsden, for appellant.
    Michael L. Roberts of Floyd, Keener & Cusimano, Gadsden, for appellees.
   HOLMES, Judge.

This is an insurance case.

The plaintiffs sued the defendant, claiming a certain sum of money was due them under a contract of hospitalization insurance. This contract was between Goodyear Tire and Rubber Company and the plaintiff-husband. The District Court of Eto-wah County entered a judgment for the plaintiffs. The defendant appeals and we affirm.

The case was tried on stipulated facts. These facts reveal the following:

The plaintiff-husband is an employee of the defendant. The defendant-company provides its own hospitalization insurance for spouses of employees such as the plaintiff-wife.

The plaintiff-wife is a school teacher employed by the State of Alabama. The state makes available to teachers a certain sum of money annually that can be applied to premiums for hospitalization insurance. If the teacher elects not to take advantage of this insurance, the money so provided reverts to the state. In this instance, the plaintiff-wife could have “signed-up” and/or purchased the insurance which would have paid $80 per day of hospitalization. Such insurance could have been purchased at no out-of-pocket expense to her. The plaintiff-wife did not “sign-up” and/or purchase the insurance and was therefore not covered by other hospital insurance.

The plaintiff-wife became ill and was hospitalized for nine days. The defendant paid a portion of the hospital bill but denied liability as to the amount which would have been paid to the plaintiff-wife had she obtained the insurance available because of her employment as a teacher. In other words, the defendant refused to pay $80 per day of the hospital bill incurred by the plaintiff-wife.

The basis for the defendant’s partial denial of liability is its reliance upon a “coordination of benefits” clause contained in the contract of insurance. This clause is as follows:

If an Employee, the spouse of an Employee, or the dependent of an. Employee . . . is covered ... by another employer-sponsored group hospital, surgical, medical, dental or prescription drug program . . . the payment allowable . . . will be coordinated with the payments payable under such other group program.

The defendant, through able counsel, contends that the plaintiff-wife had a duty to avail herself of the insurance coverage available to her “free of charge.” It is the position of the defendant that it is liable only for the excess of the hospital bill over and above the amount which the plaintiff-wife’s insurance would have paid had she signed up and/or purchased the available insurance.

As indicated, we do not agree. The contract in question, as indicated above, clearly provides that there will be a coordination of benefits if the spouse of an employee is covered by another employer-sponsored insurance program. In this instance, the plaintiff-wife was not covered by such other insurance.

We note that where the terms of a contract are plain and unambiguous, there is no room for interpretation, and that parties thereto may stand upon the letter of the contract. Flowers v. Flowers, Ala., 334 So.2d 856 (1976); Reid v. Casey, Ala.Civ.App., 339 So.2d 79 (1976).

In this instance, there is no ambiguity in the coordination of benefits clause. Thus, we are required to give it its plain meaning. The record properly before the court does not reveal any authority which would place an affirmative duty upon the plaintiff-wife to “sign-up” and/or purchase any insurance under circumstances such as we have here.

The defendant is liable for the entire hospital bill because the plaintiff-wife was not covered by other employer-sponsored insurance.

This case is due to be affirmed.

AFFIRMED.

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

      . Judge Holmes, although not sitting at or argument, listened to the tapes of oral argument.


text:
    BLUE CROSS AND BLUE SHIELD OF ALABAMA v. James R. DENNIS.
    Civ. 2168.
    Court of Civil Appeals of Alabama.
    May 28, 1980.

      Robert D. Hunter of Lange, Simpson, Robinson & Somerville, Birmingham, for appellant.
    William P. Boggs of Boggs & Mims, Clan-ton, for appellee.
   WRIGHT, Presiding Judge.

This is a suit on an insurance policy.

James R. Dennis filed suit in Chilton County District Court against Blue Cross and Blue Shield of Alabama (Blue Cross) alleging that Blue Cross had refused to pay certain benefits due under a hospitalization policy issued to him by Blue Cross through his employer Burgess Mining Co. The benefits were for the September 20, 1976, hospitalization of his wife, Linda S. Dennis.

Blue Cross denied the allegations of the complaint and alleged as a defense that the September 20, 1976, hospitalization was excluded from coverage by the terms of the policy.

The Chilton County District Court found in favor of Blue Cross, and Dennis appealed to Chilton County Circuit Court.

The case was tried before a jury on August 27, 1979. The jury returned a verdict in favor of Dennis in the amount of $846.00. Blue Cross’ motion for judgment N.O.V. or for New Trial was denied by operation of Rule 59.1, ARCP, and Blue Cross appeals.

Blue Cross submits the trial court erred in failing to grant its motion for Judgment N.O.V. or for New Trial because the evidence conclusively shows that Mrs. Dennis’ hospitalization was excluded from coverage by the terms of the policy.

Blue Cross relies upon the “Pre-existing Conditions” clause which states:

C. PRE-EXISTING CONDITIONS— Benefits hereunder shall not be available to any Member for any condition, disease, disorder or ailment, congenital or otherwise, either (i) which existed on or before the Effective Date of such Member’s coverage hereunder, whether then manifested or known in any way or not, or (ii) for which medical or surgical treatment, advice, or diagnosis has been rendered or received within one year prior to such Effective Date, unless and until such Member shall have been covered by this Contract and/or another Blue Cross hospital service contract for a period of nine (9) consecutive months immediately preceding the date of the commencement of the hospitalization. .

The evidence shows that Dennis and his wife had been covered by various Blue Cross hospitalization policies since 1963. In 1976 they had coverage under a policy offered by Blue Cross to employees of the Chilton County Commission where Mrs. Dennis was employed. In June 1976 the Dennises decided to terminate coverage under this plan and apply for coverage through Mr. Dennis’ new employer, Burgess Mining Company.

Mrs. Dennis terminated coverage through the Commission and no premiums were paid for coverage beyond June 10, 1976. On June 24,1976, Mr. Dennis applied for coverage through Burgess Mining Company. The application was approved and coverage became effective on July 20, 1976.

On September 20, 1976, Mrs. Dennis was hospitalized for evaluation of numerous complaints including aches, increased fatigue and muscle weakness, and a skin rash. The hospital records in evidence indicate that Mrs. Dennis was hospitalized to “rule out dermatomyositis,” a condition characterized by these symptoms. Dermatomyosi-tis is accompanied by malignancy in fifty percent of the adults who suffer from it. The tests proved negative and Mrs. Dennis was released. Dennis filed a claim for benefits under the Burgess group policy. Blue Cross denied the claim and Dennis filed suit.

Dennis contends that the pre-existing conditions clause does not apply because he and his wife had been covered by Blue Cross hospitalization policies for more than nine consecutive months prior to her hospitalization. He argues that the transactions in June and July 1976 were a transfer of coverage from a policy issued through the Chilton County Commission to one issued through Burgess Mining Company. The evidence does not support this argument.

Mrs. Dennis asked that the coverage through the Chilton County Commission be terminated in early June 1976. The coverage continued until the next premium due date on June 10, 1976. No further premiums were paid by the Commission or Mrs. Dennis and the coverage terminated on that date.

Mr. Dennis applied for coverage under the Burgess Mining Company plan on June 24,1976. His application was received by Blue Cross on July 14, 1976, and the coverage became effective on the next premium due date, July 20,1976. The Dennis-es were not covered by any Blue Cross policy for the forty-day period between June 10,1976, and July 20,1976. Thus they were not covered for nine consecutive months prior to Mrs. Dennis’ hospitalization in September 1976 and the pre-existing conditions clause would apply.

The question then is whether the condition for which Mrs. Dennis was hospitalized in September 1976 existed on or prior to July 20, 1976. It is uncontradicted that Mrs. Dennis suffered from the same symptoms for which she was subsequently hospitalized as early as May 1976. She so informed her physician and received treatment for the skin rash in May. There was expert testimony that the skin rash is one of the distinguishing symptoms of dermato-myositis. While it was determined that Mrs. Dennis did not suffer from dermato-myositis, it is uncontroverted that she was hospitalized to rule out the presence of this disease. The condition, whatever its cause, for which she was hospitalized, clearly existed prior to July 20, 1976. Such hospitalization was excluded from coverage by operation of the pre-existing conditions clause.

Where a contract of insurance is clear and unambiguous, it is the duty of the court to apply its terms as written. Colonial Life & Accident Insurance Co. v. Collins, 280 Ala. 373, 194 So.2d 532 (1967). It is also the duty of the court to determine whether the evidence at trial presents a question for the jury and whether the evidence supports the conclusion reached. National Security Fire and Casualty Co. v. James, 358 So.2d 737 (Ala.Civ.App.1978). Under the state of the record, the September 20, 1976, hospitalization of Mrs. Dennis was clearly excluded by the pre-existing conditions clause relied upon by Blue Cross and the trial court erred in overruling Blue Cross’ motion for Judgment N.O.V. The judgment below is reversed and remanded for entry of judgment in favor of the defendant Blue Cross-Blue Shield of Alabama notwithstanding the verdict.

REVERSED AND REMANDED WITH DIRECTION.

BRADLEY and HOLMES, JJ., concur.


text:
    James W. KELSAW and Dorothy Kelsaw Brown v. INDEPENDENT FIRE INSURANCE COMPANY.
    Civ. 2236.
    Court of Civil Appeals of Alabama.
    May 28, 1980.
    C. Collier Carlton, Jr., of Carlton, Carlton & Carr, Montgomery, for appellants.
    James H. Anderson of Hill, Hill, Carter, Franco, Cole & Black, Montgomery, for ap-pellee.
   WRIGHT, Presiding Judge.

This is an appeal from a summary judgment.

Plaintiffs brought suit in Montgomery County Circuit Court alleging that the defendant had insured a house owned by them and refused to pay the proceeds of the policy when the house was destroyed by fire.

The defendant filed an amended answer denying coverage. Among other grounds defendant alleged that the plaintiffs did not own an insurable interest in the subject property.

The defendant filed a motion for summary judgment supported by an affidavit prepared by plaintiffs’ attorney during negotiations. The trial court granted the motion on February 20,1980, and plaintiffs appeal.

Summary judgment should be granted only if all the materials on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the non-moving party cannot recover under any discernible set of circumstances. Rule 56, ARCP; Bledsoe v. Cargill, Inc., 376 So.2d 735 (Ala.Civ.App.1979).

The parties agree that the only issue before the trial court was whether the plaintiffs had an insurable interest in the subject property.

The affidavit filed in support of defendant’s motion for summary judgment was prepared by plaintiffs’ attorney as an aid in settlement negotiations. The affidavit asserts that the attorney checked the property records in Wilcox County, Alabama, regarding property owned by the Emanuel Anthony estate. It then sets out his findings.

The only other evidence in the record is the plaintiffs’ answers to interrogatories. In these answers they assert that their mother’s father gave the land upon which the house was constructed to their mother as a wedding gift. Their father then constructed the house which was the subject matter of the insurance policy. Their father died in 1953, leaving his wife and the plaintiffs as his sole heirs.

The defendant argues that the affidavit submitted in support of its motion conclusively shows the subject property to be owned by the Emanuel Anthony estate.

The affidavit shows several transactions involving real property owned by Emanuel Anthony. There is no evidence in the record before us that any of these transactions involved the property on which the house was built. There is no evidence establishing the location of the subject property or its connection, if any, with the property shown by the affidavit to be owned by the Emanuel Anthony estate. This affidavit cannot be said to establish the ownership of the subject property.

Having carefully considered the record before the trial court, we cannot say that there is no genuine issue as to whether the plaintiffs owned an insurable interest in the subject matter of the policy. Summary judgment was inappropriate in this case. First National Bank v. Culberson, 342, So.2d 347 (Ala.1977). The judgment of the trial court is reversed.

REVERSED AND REMANDED.

BRADLEY and HOLMES, JJ., concur.


author: LEIGH M. CLARK, Retired Circuit Judge.

text:
    Marvin JACKSON v. STATE.
    3 Div. 59.
    Court of Criminal Appeals of Alabama.
    Oct. 30, 1979.

      Sterling G. Culpepper, Jr., Smith, Bowman, Thagard, Crook & Culpepper, Montgomery, for appellant.
    Charles A. Graddick, Atty. Gen., Jean Williams Brown, Asst. Atty. Gen., for ap-pellee.
   LEIGH M. CLARK, Retired Circuit Judge.

Appellant was convicted of selling cyclo-hexamine in violation of the Alabama Uniform Controlled Substances Act (Code 1975, § 20-2-1, et seq.). He was sentenced to imprisonment for fifteen years.

The principal contest on appeal is as to the availability to defendant of the defense of entrapment.

Three witnesses testified on call of the State. Only one testified as to the sale. The combined testimony of the other two showed that the product sold was cyclohex-amine.

Defendant did not take the stand. No witness in his behalf testified as to a sale. The evidence for the defendant was limited largely to testimony as to his character or reputation.

As the chief issue on appeal hinges on the testimony of the only witness as to a sale, we endeavor hereby to summarize his testimony. He was Mr. Donald S. Williams, an agent of Alabama Beverage Control Board, Alcohol and Narcotic Enforcement Division, engaged in undercover work.

According to the testimony of Mr. Williams, about 5:50 P.M. on Friday, August 18, 1978, at Room 118, Holiday Inn East, Montgomery, he purchased from defendant approximately one ounce of cyclohexamine and paid defendant therefor eleven hundred dollars. He also gave defendant the sum of one hundred dollars to pay him for his plane fare to Montgomery from where defendant lived in Oklahoma. The particular transaction was in the presence of Charles Gates, a resident of Elmore County, a “confidential informant” working with Mr. Williams and other agents at the time, whom Mr. Williams had known for about six weeks and who Mr. Williams understood had been guilty of violations of Controlled Substances Act, had been charged therewith and was working with the authorities in accordance with an understanding that he might be placed on probation for his offenses. Gates was being paid his expenses from public funds, and had been paid therefrom by Mr. Williams the sum of fifty dollars with which to pay for a room (Room 118) at the Holiday Inn to be occupied by defendant.

The witness did not know defendant until the afternoon of the sale. About the mid-die of the afternoon Mr. Gates, in a State automobile assigned to Mr. Williams, drove Mr. Williams to a house or apartment on Fifth Street in Montgomery, left him there, went to the airport to pick up defendant and returned with defendant in about thirty minutes. He drove into the driveway of the house or apartment where Mr. Williams had been left. The horn of the automobile was blown, and Mr. Williams came to it, was introduced to defendant by Mr. Gates and rode with them to the Holiday Inn. They went to a lounge before going to Room 118; each had a drink, and about 5:30 P.M. the three went to Room 118.

There is no evidence as to what transpired between Gates and defendant prior to the time Williams met them on Fifth Street and went with them to the Holiday Inn, but it seems clear and undisputed that whatever arrangements were made for defendant to come from his home in Oklahoma to Montgomery, Alabama, were made between Gates and defendant. Gates did not testify in the case. Before the trial commenced and before a jury was selected to try the case, counsel for defendant made it known to the court that he had requested a subpoena for Charles Gates. Thereupon a lengthy colloquy among counsel, the court and others transpired relative to the whereabouts of Gates, and it was made known to the court that his whereabouts was not known by the State, its attorneys or agents then in court of the Alabama Beverage Control Board, and he was no longer a confidential informer of the State. At the conclusion of the colloquy and just before the jury was selected, defendant moved for a continuance “so that we could have an opportunity to locate Mr. Charles Gates.” The motion was overruled.

At the conclusion of the evidence for the State, defendant moved for an exclusion of the evidence. The record shows:

“THE COURT: All right. I will hear your Motion.
“MR. SMITH: Judge, we move to exclude the State’s evidence on the first ground of entrapment. I think under the evidence, without dispute, the Court knows as a fact — and based upon the evidence of ABC Agent Don Williams— that the plan or the scheme or the design to purchase the drug which is mentioned in the indictment originated with the enforcement officer. And we think for that reason that the State’s evidence should be excluded.
“THE COURT: Do you want to respond, Mr. Chandler?
“MR. CHANDLER: Yes, sir. It is my understanding, Mr. Smith, that you are pleading entrapment?
“MR. SMITH: I said on the grounds of entrapment.
“MR. CHANDLER: Does that constitute a plea of entrapment?
“MR. SMITH: You don’t plead entrapment.
“MR. CHANDLER: I beg to differ with you. It is a special plea you are allowed under the rules of evidence for defense of a case, as you well know.
“THE COURT: All right.
“MR. CHANDLER: I submit there is. And if the Defendant chooses to plead entrapment he acquiesces that the offense took place and his only defense is that he was trapped into doing it and he is estopped from putting on any evidence to the contrary.
“MR. SMITH: Entrapment is not a special plea, we submit to the Court.
“THE COURT: All right. Any more argument on it?
“MR. SMITH: No, sir.
“THE COURT: I don’t feel that that plea is available here. Assuming for a moment that it was timely raised. So, I will deny your Motion on that ground.
“MR. SMITH: We except.”

When defendant rested, the jury was excused to go to the jury room and the following occurred:

“THE COURT: All right. Let’s talk about the closing arguments for a moment.
“I believe all your requested charges are going to be amply covered in my oral charge. Let’s get to a more important matter.
“Under McCarroll vs. State, the defense of entrapment is not available if you deny the charge. That is what I thought would be the law.
“Do you intend to try to argue entrapment?
“MR. CULPEPPER: Judge, it is so intermingled with the credibility of Don Williams and Charles Gates . . .Now we don’t plan to just come out and use that word, but I think we are entitled, in attacking the credibility of the witnesses who say he did this, to talk about the circumstances under which it was supposedly done. And that will lead us to make such statements as, Gates told Marvin to come here to do that, and that sort of thing. Now—
“THE COURT: Are you pleading entrapment or not?
“MR. SMITH: Judge, we don’t have to plead entrapment as I understand it.
“THE COURT: Well, you can’t have the best of both worlds. You have either got to admit that he sold it and plead entrapment, as I read the law, or either you have got to deny that he sold it and take—
“MR. CULPEPPER: Are you saying we have got to stand up before the jury and say that we acknowledge that he—
“THE COURT: If you want the benefit of the defense of entrapment you do.
“MR. SMITH: Wouldn’t that be proper for the Court to instruct the jury?
“THE COURT: I don’t intend to instruct the jury on entrapment, is what I am getting to. That is why we need to talk about the argument.
“MR. SMITH: Judge, so that the record will be clear: We have asked the Court to include in your instructions the proper instructions on the defense of entrapment, and Your Honor has declined to do that.
“THE COURT: Yes, sir. And if I’m not going to charge on it you can’t argue it.
“MR. CULPEPPER: Judge, we also have a requested instruction we want to offer at this time on entrapment.
“THE COURT: All right. I am going to deny your requested charge.”

Defendant’s requested charge, which the court refused, on the subject of entrapment was as follows:

“I charge you that where a person has no previous intent or purpose to violate the law, but is induced or persuaded by law enforcement officers or their agents to commit a crime, he is a victim of entrapment, and the law as a matter of policy forbids his conviction in such case.
“On the other hand, where a person already has the readiness and willingness to break the law, the mere fact that government agents provide what appears to be a favorable opportunity is not entrapment. “If, then, the jury should find beyond a reasonable doubt from the evidence in the case that, before anything at all occurred respecting the alleged offense involved in this case, the defendant was ready and willing to commit crimes such as are charged in the indictment, whenever opportunity was afforded, and that government officers or their agents did no more than offer the opportunity, then the jury should find that the defendant is not a victim of entrapment.
“On the other hand, if the evidence in the case should leave you with a reasonable doubt whether the defendant had the previous intent or purpose to commit an offense of the character charged, apart from the inducement or persuasion of some officer or agent of the government, then it is your duty to find him not guilty.”

Notwithstanding testimony by Mr. Williams as to what may be considered as instructions to Mr. Gates as to what he should tell the defendant in making arrangements for him to come to Montgomery from Oklahoma to make a sale of a controlled substance, we cannot assume that Mr. Gates followed such instructions punctiliously. Mr. Williams was an agent with many years of experience in undercover work. His answers to questions propounded him on cross-examination, as well as direct examination, disclose a commendable awareness of the distinction between an inducement that does not constitute an entrapment and conduct that does constitute the same. This, however, does not force a conclusion that a non-expert in such field, a suspected felon such as Gates, could or would bring about a transaction such as the one taking place in Room 118 of the Holiday Inn with the same scrupulous and rigid adherence to propriety as would be expected of Mr. Williams.

In holding that the defense of entrapment was not available to defendant, the trial court relied upon McCarroll v. State, 294 Ala. 87, 312 So.2d 382 (1975), by stating:

“Under McCarrolI v. State, the defense of entrapment is not available if you deny the charge. That is what I thought would be the law.”

The statement of the trial court is supported by what was stated in McCarroll, at 312 So.2d 383:

“The defense of entrapment is not available to a defendant who denies that he committed the offense charged. Rodriquez v. United States, 227 F.2d 912 (1955, CA 5th Cir., Texas). . . . ”

We gladly acknowledge the authority of what was held in McCarrolI. We fail to find, however, in the record in the instant case, support for the proposition that defendant denied the charge. In holding in McCarrolI, supra, that defendant therein denied the charge, the court specifically set forth such denial by defendant as follows:

“Here McCarrolI denied he sold heroin, the offense with which he was charged, to the State agent. He admitted he sold capsules to the agent, which he contends contained wholewheat flour.”
312 So.2d at 383

The opinion in McCarrolI, supra, indicates, if it does not conclusively show, that defendant took the stand on the trial of the case and in his testimony denied that he had sold a controlled substance. It is also to be observed that in cases cited in McCar-roll in support of the proposition quoted therefrom above, including Rodriquez v. United States, supra, State v. Varnon, 174 S.W.2d 146 (Mo., 1943) and State v. Egan, 272 S.W.2d 719 (Mo.App., 1954), the defendant in each case took the stand and denied the charge. Furthermore, the same court that decided Rodriquez v. United States, supra, subsequently held in United States v. Groessel, 440 F.2d 602, 605 (5th Cir. 1971), as follows:

“At the threshold, the Government asserts that Groessel was not entitled to raise the defense of entrapment. This position is clearly without merit. Ordinarily the defense is not available where the defendant denies the very acts upon which the prosecution is predicated. Such a denial is inconsistent with the defense, which assumes that the act charged was committed.
“Rodriquez v. United States, 5 Cir. 1955, 227 F.2d 912, 914; Accord, Marko v. United States, 5 Cir. 1963, 314 F.2d 595, 597-598; see United States v. Pickle, 5 Cir. 1970, 424 F.2d 528. Groessel, however, chose not to testify; therefore, no evidence inconsistent with the defense of entrapment was introduced. Of course a plea of not guilty is not repugnant to the defense of entrapment. Suarez v. United States, 5 Cir. 1962, 309 F.2d 709, 712. United States v. Crowe, 5 Cir. 1970, 430 F.2d 670, upon which the Government relies to substantiate its contention, is inapposite because Crowe denied on the stand that he participated in the acts alleged. Groessel has not made such a denial here.”

Neither McCarrolI nor any other authority that has been brought to our attention furnishes support for the ruling of the trial court that defendant had denied the charge and for that reason the defense of entrapment was not available to him. We conclude that reason and authority are to the contrary. To hold otherwise would denigrate the established right of a defendant in a criminal case to plead not guilty and his enshrined right not to be compelled to give evidence against himself. He has the right, and his lawyer may ofttimes find himself under a duty, to make no admission, to make no stipulation, to make no concession, that would tend to aid the prosecution in discharging the burden that is upon it to prove the defendant’s guilt.

We wish to make it clear that in emphasizing the fact that defendant did not testify as a significant factor in distinguishing this case from McCarroll, supra, and other cases, we refrain from making any projection as to whether or when there could be such extraordinary circumstances that would not preclude the availability of the defense of entrapment to a defendant even though he had testified in the case and in some sense at least had denied the charge. See, United States v. Greenfield, 554 F.2d 179 (5th Cir. 1977), in which the alleged offense took place in the same city (Montgomery, Alabama) as the one in the instant case.

As it seems so clear that the trial court’s ruling was based exclusively on its conclusion that the defense of entrapment was not available to defendant by reason of his denial of the charge or his failure to admit the charge and that but for that reason the trial court would have charged the jury on the subject of entrapment, permitted defendant’s attorney to argue the defense and probably have given defendant’s requested written charge on the subject, it seems unnecessary to discuss the question whether there was sufficient evidence in the case to justify a submission to the jury of the defense of entrapment. Nevertheless, we will do so.

The distinction between an inducement that entraps and an inducement that merely detects has been variously stated in multitudinous instances. We accept the following as satisfactory and attractively succinct:

“One who is instigated, induced, or lured by an officer of the law or other person, for the purpose of prosecution, into the commission of a crime which he had otherwise no intention of committing may avail himself of the defense of ‘entrapment.’ Such defense is not available, however, where the officer or other person acted in good faith for the purpose of discovering or detecting a crime and merely furnished the opportunity for the commission thereof by the one who had the requisite criminal intent.” 22 C.J.S. Criminal Law § 45(2)

A valuable discussion of applications of the distinction is furnished by Judge Bowen in Tyson v. State, Ala.Cr.App., 361 So.2d 1182, in which it is stated at 1186,

“The primary focus is on a predisposition of the accused rather than on the agent’s actions.”

Also on page 1186, on the question of the “proper allocation of the burden of proof in trying a case in which entrapment is claimed,” is the following approved quotation from United States v. Dickens, 524 F.2d 441, 444 (5th Cir. 1976):

“The defendant must first come forward with evidence sufficient to raise a jury issue ‘that the Government’s conduct created a substantial risk that the offense would be committed by a person other than one ready to commit it’. United States v. Mosley, 496 F.2d 1012, 1014 (5th Cir. 1974) citing Pierce v. United States, 414 F.2d 163, 168 (5th Cir. 1969). Once such issue is raised, the Government must prove beyond a reasonable doubt that the Defendant was predisposed to commit the charged offense. Id. See also, United States v. Gomez-Rojas, 507 F.2d 1213, 1218 (5th Cir. 1975). By relying on entrapment as a defense, an accused exposes himself to a ‘searching inquiry into his own conduct and predisposition . . . ’ Sorrells v. United States, 287 U.S. 435, 451, 53 S.Ct. 210, 216, 77 L.Ed. 413 (1932). To negative the defense, the government may introduce evidence to prove predisposition which is otherwise inadmissible. United States v. Moriarty, 497 F.2d 486, 488 (5th Cir. 1974); United States v. Simon, 488 F.2d 133 (5th Cir. 1973).”

Although it is clear and undisputed that defendant was in some way contacted by Gates as a confidential informer working with an undercover agent of the prosecution and caused to come to Montgomery, each party for reason of his (its) own has elected to close the curtain to a view by anyone else of the question of any “predisposition of the accused.” Although we can glean from the record some suggestion of a predisposition, there is no actual evidence to that effect. It can also be said that there is some suggestion to the effect that there was no predisposition, but as to that also there is no evidence. On that axial question there is little but “darkness upon the face of the deep.”

Although it is conceivable, if all the facts bearing on the question were shown in evidence, that it could be said ¿s a matter of law whether there was an entrapment, this cannot be said on a consideration of the evidence on the trial of the case. Not being determinable either way as a matter of law, it became a question for the jury to decide under proper instructions by the court. In view of the action of the court in ruling that there was no issue for the jury to decide on the question of entrapment, declining to allow attorneys for defendant to argue to the jury the matter of the question of entrapment, and refusing the charge requested by defendant on the subject on the sole ground that no jury question as to entrapment was presented and that on the ground that the defense of entrapment was not available to defendant, we must find that such action constituted error prejudicial to defendant and that the judgment of the trial court should be reversed and the cause remanded.

In view of this determination it becomes unnecessary for us to decide the only other question on appeal, that is, whether the imposition of sentence by a judge other than the judge trying the case, over the objection of defendant, impaired the sentence under the circumstances shown by the record.

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

REVERSED AND REMANDED.

All the Judges concur.


author: BEATTY, Justice.

text:
    Ex parte State of Alabama ex rel. Attorney General. Marvin JACKSON v. STATE of Alabama.
    No. 79-184.
    Supreme Court of Alabama.
    June 6, 1980.
    Charles A. Graddick, Atty. Gen., and Jean Williams Brown, Asst. Atty. Gen., for the State.
    Sterling G. Culpepper, Jr., of Smith, Bowman, Thagard, Crook & Culpepper, Montgomery, for Marvin Jackson.
   BEATTY, Justice.

The writ of certiorari to the Court of Criminal Appeals is quashed as improvidently granted, 384 So.2d 134.

WRIT QUASHED AS IMPROVIDENTLY GRANTED.

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

MADDOX, J., dissents.

BLOODWORTH, J., not sitting.


author: SUNDBERG, Justice. OVERTON, Justice, ALDERMAN, Justice,

text:
    James Rickey STANFILL, Petitioner, v. STATE of Florida, Respondent.
    No. 54771.
    Supreme Court of Florida.
    April 3, 1980.
    Rehearing Denied June 24, 1980.
    F. Palmer Williams and Everett P. Anderson of Pennington & Wilkinson, Tallahassee, for petitioner.
    Jim Smith, Atty. Gen., and Miguel A. Olivella, Jr., Asst. Atty. Gen., Tallahassee, for respondent.
   SUNDBERG, Justice.

This cause is before us on petition for writ of certiorari to review the decision of the District Court of Appeal, First District, in Stanfill v. State, 360 So.2d 128 (Fla.1st DCA 1978), holding that section 316.027, Florida Statutes (1975), creates but a single crime, that being the felony of “willfully” leaving the scene of an accident. This decision conflicts with the decisions in State v. Patterson, 284 So.2d 9 (Fla.2d DCA 1973), and Diggs v. State, 334 So.2d 333 (Fla.2d DCA 1976), which hold that section 316.027 creates two crimes, the misdemeanor of “unlawfully” leaving the scene and the felony of “willfully” leaving. We resolve this conflict by adopting the first district’s holding that section 316.027 creates but one crime, a felony. We further hold that the indictment in this case was defective and prevented petitioner from properly preparing his defense.

Petitioner, James Rickey Stanfill, was charged by indictment with one count of manslaughter and three counts of “unlawfully” leaving the scene of an accident involving death or personal injury, in violation of section 316.027, Florida Statutes (1975). At trial, following the impanelling of the jury, Stanfill brought to the court’s attention an alleged inconsistency in the state’s position. He argued that, although the indictment charged him with “unlawfully” leaving the scene of an accident, a misdemeanor under then existing case law, the state was apparently preparing to try him for “willfully” leaving the scene, a felony. Acknowledging that the indictment charged a crime, Stanfill argued that he could not be tried for the felony of “willfully” leaving the scene because the indictment only charged “unlawful” leaving. Relying on Florida Rules of Criminal Procedure 3.140(o) and 3.190(c), the state responded that Stanfill’s attack on the indictment was untimely. Stanfill replied that these rules were inapplicable because the indictment contained a valid charge.

The trial judge, rejecting Stanfill’s argument, allowed the state to prosecute for felony violation of section 316.027. Over Stanfill’s objection, the trial judge charged the jury that it is a crime for the driver of a vehicle involved in an accident resulting in injury to, or death of, a person to “willfully” fail to stop at the scene of the accident. The trial judge did not instruct the jury that unlawfully leaving the scene of the accident is a lesser included misdemeanor offense provided for in section 316.027. The jury found Stanfill guilty on three counts of “willfully” failing to stop. He was adjudged guilty on one count and sentenced to a term of one year in the state prison. Adjudication was withheld on the other two counts.

On appeal, the District Court of Appeal, First District, was presented with the question of whether an indictment charging a driver with “unlawfully,” as distinguished from “willfully,” violating section 316.027, charges a misdemeanor, as Stanfill contended, or whether it defectively charges a felony, and, if it does defectively charge a felony, whether this defect was waived and cured by the application of Florida Rules of Criminal Procedures 3.140(o) and 3.190(c). Receding from its previous decisions in State v. Shepard, 299 So.2d 644 (Fla.1st DCA 1974), and Holmes v. State, 342 So.2d 134 (Fla.1st DCA 1977), the first district rejected the “unlawful-willful” distinction and held that section 316.027 creates but a single crime, that being a felony. The district court based its decision on the language contained in two other related statutes, section 775.08(2) and section 316.-026(4), which it read in conjunction with section 316.027. The district court reasoned that, in enacting section 316.027, the legislature never intended, by the first two subsections, to create two crimes, a misdemeanor by subsection (1) and a felony in subsection (2), and that the legislature intended to condemn “willful” leaving. The first district affirmed Stanfill’s conviction, concluding that the indictment, by using “unlawful,” charged defective felonies but that the failure by Stanfill to attack these counts prior to trial, pursuant to Florida Rules of Criminal Procedure 3.140(o) and 3.190(c), constituted a waiver of the defect and cured the indictment.

Stanfill concedes that the district court’s construction of section 316.027, as charging but one crime, is correct and that the deci-sional conflict should be resolved by our adopting this construction. He contends, however, that Florida Rules of Criminal Procedure 3.140(o) and 3.190(c) are not applicable because the indictment is defective in that it fails to allege “willful.” The state argues that the district court’s construction of section 316.027 is correct, but it maintains that the district court was also correct in holding that the defect was waived and that the indictment was cured pursuant to Florida Rules of Criminal Procedure 3.140(o) and 3.190(c).

The first district’s construction of section 316.027 is correct, and we hold that section 316.027 creates only the felony of “willfully” leaving the scene of an accident. When sections 775.08(2) and 316.026(4) are read together with section 316.027, it is obvious that, in enacting section 316.027, the legislature never intended to create a misdemeanor by subsection (1). Accordingly, we approve the first district’s construction of section 316.027 and disapprove the decisions in State v. Patterson, State v. Shepard, Diggs v. State, and Holmes v. State to the extent that they hold to the contrary.

But what is the effect of the state’s failure to allege a “willful” leaving of the scene? We conclude that the charging document in this case was so vague, indistinct and indefinite as to mislead the accused and embarrass him in the preparation of his defense. See Fla.R.Crim.P. 3.140(o). The indictment alleged that Stan-fill “unlawfully” left the scene of an accident. As noted previously, several decisions of the district courts of appeal, including the District Court of Appeal, First District, unequivocally held that use of the term “unlawfully” in an information charged a misdemeanor pursuant to section 316.027(1), while use of the term “willfully” charged a felony pursuant to section 316.027(2). The decisions of the district courts of appeal represent the law of Florida unless and until they are overruled by this Court, hence petitioner did not act unreasonably in relying upon them. It follows, then, that petitioner did not waive his right to challenge the indictment under Florida Rules of Criminal Procedure 3.140(o) and 3.190(c). At the time petitioner was charged with a crime, counts II, through IV, of his indictment contained valid charges of a misdemeanor. It was only at trial that it became apparent that the state was pursuing a felony conviction under section 316.027(2). To hold that petitioner should have challenged his indictment before that time would be tantamount to holding that petitioner should have foreseen our disapproving the district court decisions construing section 316.027. This we will not do.

For these reasons we remand this cause to the District Court of Appeal, First District, with directions that the felony judgment and sentence be vacated, and the cause be further remanded to the trial court to enter a judgment of conviction of a misdemeanor and to impose sentence accordingly. See Diggs v. State, 334 So.2d 333 (Fla.2d DCA 1976).

It is so ordered.

ENGLAND, C. J. and ADKINS and MCDONALD, JJ., concur.

OVERTON, J., concurs in part and dissents in part with an opinion.

ALDERMAN, J., concurs in part and dissents in part with an opinion, with which BOYD, J., concurs.

BOYD, J., dissents.

OVERTON, Justice,

concurring in part, dissenting in part.

I concur with the majority holding that section 316.027, Florida Statutes (1975), creates but one offense, a felony. I dissent from the remand to sentence for a misdemeanor that we have just held is nonexistent. I would remand for a new trial for the felony offense as the majority has defined it.

ALDERMAN, Justice,

concurring in part, dissenting in part.

I concur with that part of the majority opinion holding that section 316.027, Florida Statutes (1975), creates but a single crime, that being the felony of “willfully” leaving the scene of an accident. I dissent, however, from the paradoxical conclusion of the majority opinion that remands this cause with directions that Stanfill’s felony judgment and sentence be vacated and that the trial court enter a judgment of conviction of a misdemeanor and impose sentence accordingly.

How can this Court direct the trial court to adjudge Stanfill guilty of a misdemeanor in violation of section 316.027 and at the same time hold that this section creates but a single crime, a felony. Stanfill is either guilty of a felony, or he is guilty of nothing. He cannot be sentenced for a crime that does not exist.

What is the effect of the State’s failure to allege a “willful” leaving of the scene. Stanfill argues that willfulness is an essential element of the crime proscribed by section 316.027 and that failure to allege willfulness rendered the indictment fundamentally defective. I reject this argument. It cannot be said that this indictment wholly fails to charge a violation of section 316.027 because it does allege that Stanfill “unlawfully” left the scene of an accident. The only way under this statute that he could have unlawfully left the scene was to have willfully left the scene. In other words, the allegation of unlawfulness includes an implied allegation of willfulness. The allegation that Stanfill “unlawfully” left the scene of an accident is not so vague, indistinct, and indefinite as to mislead the accused and embarrass him in the preparation of his defense or to expose him after conviction or acquittal to substantial danger of a new prosecution for the same offense.

Even if the indictment is in some manner technically defective (in my opinion, it is not), any such non-fundamental defect was subject to waiver under Florida Rule of Criminal Procedure 3.190(c), if not raised in a timely motion. Stanfill did not challenge the legal sufficiency of the indictment until after the impanelling of the jury.

Accordingly, I would deny the writ.

BOYD, J., concurs.

      . Section 316.027, Florida Statutes (1975), provides in pertinent part:
      (1) The driver of any vehicle involved in an accident resulting in injury or death of any person shall immediately stop such vehicle at the scene of the accident, or as close thereto as possible, and shall forthwith return to, and in every event shall remain at the scene of, the accident until he has fulfilled the requirements of s. 316.062.
      (2) Any person willfully failing to stop or to comply with the requirements of subsection (1) under such circumstances is guilty of a felony and, upon conviction, shall be punished by imprisonment in the state penitentiary for not more than 1 year or by fine of not more than $5,000 or by both such fine and imprisonment.

      . At the time of Stanfill’s indictment and trial, several cases had held that the use of “unlawfully” charged a misdemeanor pursuant to section 316.027(1), while the use of “willfully” charged a felony pursuant to section 316.27(2). See State v. Patterson, 284 So.2d 9 (Fla.2d DCA 1973); State v. Shepard, 299 So.2d 644 (Fla. 1st DCA 1974); Diggs v. State, 334 So.2d 333 (Fla.2d DCA 1976); and Holmes v. State, 342 So.2d 134 (Fla.1st DCA 1977).

      .Florida Rules of Criminal Procedure 3.140(o) and 3.190(c) provide:
      3.140(o) Defects and Variances. No indictment or information, or any count thereof, shall be dismissed or judgment arrested, or new trial granted on account of any defect in the form of the indictment or information or of misjoinder of offenses or for any cause whatsoever, unless the court shall be of the opinion that the indictment or information is so vague, indistinct and indefinite as to mislead the accused and embarrass him in the preparation of his defense or expose him after conviction or acquittal to substantial danger of a new prosecution for the same offense.
      3.190(c) Time for Moving to Dismiss. Unless the court grants him further time, the defendant shall move to dismiss the indictment or information either before or upon arraignment. The court in its discretion may permit the defendant to plead and thereafter to file a motion to dismiss at a time to be set by the court. Except for objections based upon fundamental grounds, every ground for motion to dismiss which is not presented by a motion to dismiss within the time herein-above provided for shall be taken to have been waived.

      . Section 775.08(2) provides that the term “misdemeanor” does not mean a conviction for any violation of any provision of chapter 316, and section 316.026(4) provides that the penalty for violating section 316.027 is a felony.

      . See Johns v. Wainwright, 253 So.2d 873 (Fla.1971); Ansin v. Thurston, 101 So.2d 808 (Fla.1958).


author: OVERTON, Justice.

text:
    BAPTIST MEMORIAL HOSPITAL, INC., Grace I. Sagcal, and St. Paul Fire and Marine Insurance Co., Petitioners, v. Clayton A. BELL, as Personal Representative of the Estate of Melissa Y. Bell, Respondent.
    No. 55501.
    Supreme Court of Florida.
    April 24, 1980.
    Rehearing Denied June 24, 1980.
    William M. Howell of Howell, Howell, Liles, Braddock & Milton, Jacksonville, for petitioners.
    Hugh M. Davenport of Smith, Davenport, Bloom & Harden, Jacksonville, for respondent.
   OVERTON, Justice.

This is a petition for writ of certiorari to review a decision of the First District Court of Appeal, reported at 363 So.2d 28 (Fla. 1st DCA 1978), which reversed the trial court’s order directing a new trial on the issue of damages. We find conflict with Castlewood International Corp. v. LaFleur, 322 So.2d 520 (Fla.1975), and Cloud v. Fallis, 110 So.2d 669 (Fla.1959). We have jurisdiction. We quash the decision of the district court and reinstate the trial court’s order directing a new trial.

The relevant facts reflect that the trial concerned damages only, the defendant having admitted liability. The jury returned a verdict for $450,000. Upon the defendant’s motion for a new trial or for a remittitur, the trial court granted a new trial, finding: (1) the size of the verdict was grossly excessive and shocked the conscience of the court; (2) the verdict was contrary to the manifest weight of the evidence; (3) the jury considered matters outside the record, including the amount of taxes which might have to be paid on the jury verdict, the amount of attorney’s fees, and the amount of other costs and expenses; and (4) plaintiff’s counsel had made an improper “Golden Rule” argument in his closing statement. The district court reversed the trial court’s order for a new trial and remanded for reinstatement, finding the verdict was neither excessive nor contrary to the manifest weight of the evidence; the jury’s consideration of matters outside the record was harmless; and the remarks made by counsel were timely objected to by defendant’s counsel and a sufficient cautionary instruction was given by the trial court. In reversing the trial court, the district court did not expressly find that the trial court abused its discretion.

In entering its order granting a new trial, we find that the trial court properly applied the dictates of this Court in Wackenhut Corp. v. Canty, 359 So.2d 430 (Fla.1978). We further find that the district court failed to properly apply the broad discretion rule granted to trial courts as expressed in our decisions in Castlewood and Cloud. We stated in Cloud:

When a motion for new trial is made it is directed to the sound, broad discretion of the trial judge, . . . who because of his contact with the trial and his observation of the behavior of those upon whose testimony the finding of fact must be based is better positioned than any other one person fully to comprehend the processes by which the ultimate decision of the triers of fact, the jurors, is reached, .
Inasmuch as such motions are granted in the exercise of a sound, broad discretion the ruling should not be disturbed in the absence of a clear showing that it has been abused. . . . [Citations omitted.]

110 So.2d at 673.

The trial judge is granted this discretionary power because it is impossible to establish a strict rule of law for every conceivable situation which could arise in the course of a trial. In Castlewood, we recognized that the district court had failed to find an abuse of discretion by the trial judge and held:

Mere disagreement from an appellate perspective is insufficient as a matter of law to overturn a trial court on the need for a new trial. The trial judge “was in a much better position than an appellate court to pass on the ultimate correctness of the jury’s verdict.” [Citation omitted.]

322 So.2d at 522.

The discretionary power to grant or deny a motion for new trial is given to the trial judge because of his direct and superi- or vantage point. In accordance with Wackenhut, the judge must give express reasons which will support his finding that the verdict is either against the manifest weight of the evidence or was influenced by consideration of matters outside the record. The trial judge in the instant case clearly followed the mandate of Wackenhut and, in fact, cited it in his order.

In reviewing this type of discretionary act of the trial court, the appellate court should apply the reasonableness test to determine whether the trial judge abused his discretion. If reasonable men could differ as to the propriety of the action taken by the trial court, then the action is not unreasonable and there can be no finding of an abuse of discretion. Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980). As we stated in Cloud, the ruling should not be disturbed in the absence of a clear showing that it has been abused, and there has been no such showing in the instant case. From this record the action of the trial judge was reasonable although reasonable men may differ.

For the reasons expressed, we quash the decision of the district court of appeal and direct a reinstatement of the order granting a new trial.

It is so ordered.

ENGLAND, C. J., and ADKINS, BOYD and ALDERMAN, JJ., concur.

SUNDBERG, J., concurs in result only.

      . Art. V, § 3(b)(3), Fla.Const.