author: BRADLEY, Judge.

text:
    Barbara J. DIMITRO v. Michael W. DIMITRO.
    Civ. 2462.
    Court of Civil Appeals of Alabama.
    April 15, 1981.

      Judith S. Crittenden of Clark, James & Crittenden, Birmingham, for appellant.
    C. B. Caine, Jr., Moulton, for appellee.
   BRADLEY, Judge.

The appeal is from an order modifying a child custody decree. Michael Dimitro filed a complaint in the Circuit Court of Morgan County on March 23,1979 seeking a divorce from his wife, Barbara, and custody of a three year old son, the only child of the marriage. The court awarded temporary custody of the child to the father and certain visitation rights to the mother pending a hearing on the merits of the case.

The matter was set for final hearing on August 7, 1979. On that day the parties in open court entered into an agreement which was adopted by the court. The court also took into consideration the testimony previously offered in support of a motion for temporary custody. On that same day the court rendered a judgment in which it divorced the parties for incompatibility of temperament and ordered that the legal custody of the child remain with the court but that physical custody would be in the father during such periods when he was not working and that physical custody of the child would be in the mother during those periods when the father was working. The parties were ordered not to remove the child from the jurisdiction of the court or the state without having obtained prior written consent of the other parent or permission of the court. The father was also ordered to pay the mother $25.00 a week as child support.

On November 13, 1979 the father filed a petition to modify the child custody portion of the decree, alleging that there had been a material change in circumstances since the August 8 custody decree and that he should be awarded permanent custody of his child with reasonable visitation rights accorded to the mother.

The matter came on for hearing before the court on June 11, 1980 and on July 7, 1980 the court awarded permanent custody of the child to the father and awarded the mother certain visitation rights. From this decree the mother appeals.

The mother argues in brief here that the trial court erred (1) in considering the petition to modify which was filed prior to the rendition of the final decree, (2) in modifying the prior custody decree to permit the father to have permanent custody of the child, (3) in decreeing that she could visit with the child only in Alabama and then only in the presence of the father, and (4) in considering the father’s petition for modification because he was at that time in contempt of court and therefore had unclean hands.

In support of her first issue, the mother argues that the last decree involving child custody and to which the petition for modification would relate was rendered on November 14, 1979, which was one day after the petition was filed. If this be true, there could be no changed circumstances which would support the modification petition. In other words the petition had been prematurely filed.

The father contends that the trial court rendered a final and valid judgment disposing of the custody of the child on August 8, 1979. He also points out that the mother, in the various motions and proceedings subsequent to August 8, 1979 and even in her answer and counterclaim to the petition to modify, averred that a judgment had been rendered on August 8, 1979. Consequently he submits that the mother should not at this late date be permitted to contend that the August 8, 1979 order was not a valid and binding judgment as to child custody.

A case will not be reviewed in an appellate court on a theory different from that on which it was tried in the trial court. City of Dothan v. Gulledge, 276 Ala. 433, 163 So.2d 217 (1964). Neither will a complainant in a child custody case be permitted to assume an inconsistent position on appeal with that taken in the trial court on the question of jurisdiction or legality of the proceedings. Curry v. Curry, 283 Ala. 272, 215 So.2d 715 (1968). Consequently, we conclude that the mother cannot now assert that the August 8, 1979 order was not a valid judgment as to child custody.

Notwithstanding our conclusion that the mother may not now rely on the contention that the August 8,1979 order was not a valid and binding child custody decree, the trial court, as a result of motions by both parties, set for hearing on November 5 the question of whether a final decree had in fact been rendered on August 8, 1979. On November 5, 1979 a hearing was held and on November 14, 1979 the trial court put into writing the decree that was rendered on August 8, 1979. The record clearly reveals that the trial court, with the parties and their attorneys present, decided the major issues of this case, including child custody, child support, and child visitation, on August 8,1979. It is also clear from the record that the mother considered the August 8,1979 decree to be a final one and she objected to its being set aside.

We, therefore, consider the August 8, 1979 decree to be the last custody decree affecting the welfare and best interests of the parties’ child which was rendered prior to the filing by the father of his petition to modify child custody. Such a conclusion is in keeping with our holding in Hallford v. Hallford, Ala.Civ.App., 390 So.2d 295 (1980) where we said that a petition to modify is referable to “the last custody decree which has so affected the welfare and best interests of the children as to require a change in custody.”

Please note that the controversy in this case over the date of the judgment has to do with whether the modification petition was prematurely filed and not whether the judgment will support an appeal. See McGraw v. McGraw, 282 Ala. 7, 208 So.2d 206 (1968) and Rule 58(a), ARCP.

The father’s petition to modify was filed on November 13, 1979 and it alleged a material change in circumstances necessitating a change in the custody of the child and in visitation privileges previously accorded to the parties. On July 7, 1980 the trial court found that the father had sustained the burden cast upon him and placed permanent custody of the child in him and gave the mother certain visitation privileges.

The mother argues here that the trial court erred in its award of permanent custody of the child to the father. She also contends that to require her to visit her son only in the daytime and in the presence of the father or some other responsible person in Decatur, Alabama, when her home is in St. Louis, Missouri, is to effectively deny her visitation with her son and is, therefore, error. We disagree.

In Hallford v. Hallford, supra, we said the moving party in a child custody modification proceeding has the burden of proving a material change in circumstances since the last decree affecting custody. In deciding whether the moving party has sustained his burden, the trial court may consider not only relevant evidence tending to prove or disprove changed circumstances since the custody decree but also may consider facts which were known but not disclosed to the court at the original divorce proceeding. Roberson v. Roberson, Ala.Civ. App., 370 So.2d 1008, cert. denied, Ala., 370 So.2d 1012 (1979). And, where the trial court modifies the prior custody decree, its decision will not be set aside unless it be shown that the judgment is plainly wrong. Quinn v. Quinn, Ala.Civ.App., 351 So.2d 925 (1977).

The evidence shows that the trial court on August 8, 1979 retained legal custody of the child but gave the physical custody to the father when he was not working and to the mother when he was working. Shortly after August 8 the mother left Alabama and went back to St. Louis, Missouri where her father lived and where the parties had lived for several years. From this time until the hearing on the modification petition, the father has had the child for the major portion of this period.

There is substantial evidence that the mother did not properly care for the child when he was in her custody. There was evidence that she had no patience with the child and used more force than necessary to discipline him. There is also evidence that she used drugs and that she engaged in sexual relations with several men, including a fifteen year old boy, and some of these affairs took place in her apartment when she had custody of the child. At the hearing before the court on November 5, 1979 she was pregnant by a man other than Michael but did not apprise the court of this fact.

The evidence also shows that in December 1979 during a visit with the child in Decatur and after being told by the judge not to take the child out of Alabama, the mother took the child to St. Louis, Missouri, necessitating legal action by the father to recover custody of his son. For this infraction of the custody decree the mother was held in contempt and fined $50.00.

The evidence introduced on behalf of the father shows that he is regularly employed and living in Decatur with his mother and an eighteen year old .sister. When the father is working, his mother and sister care for the child. When the father is at home he spends a great deal of time with his son.

There is evidence that the father had in the past used drugs but that he has not had any drugs since 1977.

Based on the evidence received by the trial court we cannot say that its award of permanent custody to the father is plainly and palpably erroneous. Neither can we say that the trial court’s decree requiring the mother to visit the child in the presence of the father or some other responsible person is palpably erroneous especially in view of the evidence that the mother after being specifically admonished not to remove the child from the jurisdiction of the court did in fact do just that.

The mother’s final contention is that the father had unclean hands when he filed the child custody modification petition because he was in arrears in child support payments, and, therefore, he should not have been given any relief. This issue was raised by defendant in her counterclaim to the modification petition wherein she sought permanent custody of the parties’ minor child.

The record reflects that evidence was received by the trial court at the hearing on the modification petition relating to the father’s payment of family debts as ordered by the August 8, 1979 decree and relating to the payment of child support by the father. And, we are not persuaded that the trial court’s failure to find in favor of the mother on this aspect of her counterclaim is plainly and palpably wrong.

For the reasons above noted the judgment of the trial court is affirmed.

Both parties have moved this court for the award of an attorney’s fee on appeal, and, after due consideration, these motions are denied.

AFFIRMED.

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


source: Caselaw Access Project

license: Public Domain

text:
    Mrs. Charles ARNOLD v. Earl CAMPBELL.
    Civ. 2513.
    Court of Civil Appeals of Alabama.
    April 15, 1981.

      L. H. Little, Jr. of Berry, Abies, Tatum, Little & Baxter, Huntsville, for appellant.
    No brief for appellee.
   EDWARD N. SCRUGGS, Retired Circuit Judge.

This civil action concerns a contract to repair a fire damaged residence.

Mr. Campbell, the plaintiff contractor, sued both Mr. and Mrs. Arnold; however, only Mrs. Arnold executed the written construction contract, and a cause of action was proven solely against her. Mr. Arnold died before the trial and his death was properly suggested on the record, but the case against him was never revived. After a nonjury trial, judgment was rendered against both defendants.

Only Mrs. Arnold has appealed. She argues that where parties to an allegedly joint contract are sued jointly thereon, and the proof fails to support the joint contract, a variance has occurred which is fatal to recovery against any of the defendants. As authority for such proposition, reliance is placed upon Redmond & Co. v. Louisville & Nashville R.R., 154 Ala. 311, 45 So. 649 (1908); Courtesy Ford Sales, Inc. v. Farrior, 53 Ala.App. 94, 298 So.2d 26 (1974); Jim Walter Corp. v. Gilbert, 47 Ala.App. 376, 255 So.2d 46 (1971) and many other cases with similar holdings. Like contentions were recently raised in B & M Homes, Inc. v. Hogan, Ala., 376 So.2d 667, 674 (1979), and that argument was therein expressly repudiated by the following language:

We reject the appellants’ contention that the trial judge committed reversible error. The cases relied on in the Jim Walter Corporation case are all based on the harsh and strict rules of common law pleading. When this court adopted the Alabama Rules of Civil Procedure, it abolished the harsh technicalities of the old forms of pleading. The new rules are to be construed liberally to effect the purpose of the rules.

In the Courtesy Ford Sales case, supra, this court applied the rule here sought by Mrs. Arnold, but it was therein pointed out that “the new Rules of Civil Procedure, i. e., Rule 20, will in all probability eliminate future problems of this nature.” The committee comments to ARCP rule 20 indicate that rule 20 is contra to the holding in the Redmond case, supra. We, therefore, hold that rule 20 supplants and replaces the harsh and inequitable results reached by such eases cited by the appellant, and that, at the present time, a judgment may be rendered against one or more defendants according to their respective liabilities regardless of the fact that they have been jointly sued upon an allegedly joint contract.

The contract provided that it was the entire agreement between the parties, and Mrs. Arnold insists that such provision prevents further compensation to the contractor for additional work. A written contract may be orally modified if additional work is mutually agreed upon by the parties or done under circumstances implying mutual assent. C. F. Halstead Contractor, Inc. v. Dirt, Inc., 294 Ala. 644, 320 So.2d 657 (1975); 5 Ala. Digest, Contracts, Key Nos. 236, 237, 238.

As to other matters argued, the evidence in many aspects was in conflict. We assure counsel for the appellant that we have thoroughly read and studied the evidence,, and we find that the holding against Mrs. Arnold was supported by credible evidence. 2A Ala. Digest, Appeal & Error, Key Nos. 931(1), 1009(1), 1009(2).

The judgment against Mrs. Arnold is affirmed, but, since there was no appeal from the judgment against Mr. Arnold, we express no opinion as to its validity.

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

AFFIRMED.

All the Judges concur.


author: HOLMES, Judge.

text:
    Archie B. CORNETT v. Sandra N. CORNETT (Moody).
    Civ. 2524.
    Court of Civil Appeals of Alabama.
    April 15, 1981.
    Carl W. Stolsworth, Tuscumbia, for appellant.
    John D. Clement, Jr., Tuscumbia, for ap-pellee.
   HOLMES, Judge.

The Circuit Court of Colbert County modified a prior divorce decree. The modification increased the amount of child support the father was required to pay. The father appeals and this court affirms.

The primary dispositive issue on appeal is whether the trial court abused its discretion by increasing the amount of child support. As indicated, we find no such abuse of discretion requiring reversal.

Viewing the record with the attendant presumptions accorded the trial court’s action after an ore ten us hearing, the following is pertinently revealed. The mother and father were divorced in 1971. There were two children born of the union. The mother was given custody of the children. The father was required to pay $150 per month child support. One of the children is no longer a minor and the remaining minor child is a seventeen year old male. Both mother and father have remarried since the divorce.

The father earns approximately $30,000 per year and has an estate of over $100,000. The mother is employed and earns less than $10,000 per year.

After the divorce, the minor child lived for approximately seven years with the mother. While it is not necessary to detail the minor’s problems, suffice it to say he had begun having difficulties. He was involved with drugs and failed the 1977-78 school year.

In 1978, the minor went to live with the father in Sheffield, Alabama. Thereafter, the minor child made remarkable progress. Specifically, he became editor of his high school annual and active in religious activities. However, in January of 1980, the father and the child had an “argument.” The father struck the child in the eye with his fist. There is evidence that the child attempted to reconcile with his father, but the father refused to allow the child in the house.

Thereafter, the child returned to the mother’s home. He remained there for approximately six weeks. Fearful that the child might return to his “old habits” it was determined that the child should return to Sheffield and live with his paternal aunt. There is some evidence that the father asked the aunt not to allow the child to live with her.

In any event, the child went to live with the aunt. The aunt testified the child is doing well in school and is active in his church.

Thereafter, as indicated, the mother sought an increase in child support payments and, with the above facts before it, the trial court ordered an increase.

Specifically, the trial court found that the needs of the minor child were $300 per month. The trial court ordered the father to pay $75 per week as child support, such support to be paid directly to the child. The father was also ordered to pay the necessary medical expenses.

At the outset, we note that our rule of review in cases where the trial court makes findings after hearing the evidence ore terms is to indulge every presumption in favor of those findings. Scott v. Gill, Ala. Civ.App., 352 So.2d 1143 (1977). In those cases the trial court’s judgment will not be reversed unless plainly erroneous or manifestly unjust, and must be affirmed if supported by credible evidence. Raidt v. Crane, Ala., 342 So.2d 358 (1977); Gann & Lewis Roofing Co. v. Sokol, Ala.Civ.App., 359 So.2d 815 (1978); 2A Ala.Digest, Appeal & Error Key 1010.1(1).

As we perceive the father’s brief, it is first contended that the amount of child support as ordered is excessive.

Suffice it to say, there is evidence to support the award. The mother and child testified that approximately $300 per month was needed to sustain the child. Put another way, there is evidence of “need” and “means.”

The needs of the child and the means of the parents determine whether a modification of child support on the basis of changed conditions should be granted. The trial court has a discretion to exercise in child support modification cases, and its judgment will not be disturbed on appeal unless the evidence shows it to be plainly and palpably wrong. Childress v. Childress, Ala.Civ.App., 378 So.2d 1147 (1979); Murphree v. Murphree, Ala.Civ.App., 366 So.2d 1132 (1979).

In relation to the father’s first contention, he additionally argues that it was error for the trial court to require that payments be made directly to the child.

While direct payments are unusual and in general should be avoided, under the facts as indicated, we find no such abuse as to require reversal. This court particularly notes that the child is seventeen years old, not living at home, and is a well adjusted young person. Under such circumstances, we find no error in the trial court’s action requiring direct payment of child support to the child.

The father next argues without benefit of citation of authority, that it was error to require the father to support the child, when the child will have “little to do with the father.” In this instance, we find no error to require reversal.

The father’s final contention is that the trial court erred in failing to require the mother to assist in the support of the child.

We do not deem it necessary to restate what we have previously said in Williamson v. Williamson, Ala.Civ.App., 391 So.2d 115 (1980); and Thomason v. Thomason, 53 Ala.App. 206, 298 So.2d 627 (1974). Suffice it to say the mother’s income was less than $10,000; the father’s was approximately $30,000 with an estate of over $100,-000.

The trial court did not abuse its discretion in failing to require the mother to assist in the support of the child.

The mother requests this court to dismiss the father’s appeal for being untimely filed. The motion is denied.

The case is due to be affirmed.

AFFIRMED.

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


text:
    CHAMPION INTERNATIONAL CORPORATION, a Corporation v. Chester SIMMONS.
    Civ. 2550.
    Court of Civil Appeals of Alabama.
    April 15, 1981.

      J. Glynn Tubb of Eyster, Eyster, Key & Tubb, Decatur, for appellant.
    W. H. Rogers, Moulton, for appellee.
   BRADLEY, Judge.

This is a workmen’s compensation case.

Plaintiff, Chester Simmons (hereinafter Simmons), filed a complaint against defendant, Champion International Corporation (hereinafter Champion) to recover workmen’s compensation benefits as a result of a job-related injury incurred when the truck he was operating for his employer was involved in an accident. After a hearing the trial court awarded claimant benefits for temporary total disability to the time of trial and for two hundred nineteen weeks into the future. The trial court also required Champion to furnish all necessary and reasonable medical and hospital expenses as provided by the Alabama Workmen’s Compensation Act, including accrued expenses and future expenses. Champion moved the court to vacate the judgment or, in the alternative, grant it a new trial. Champion supported the motion with affidavits. A hearing was held by the court, at which time testimony was taken. The court denied the motion. Champion appeals from the judgment on the merits and the denial of the motion for new trial.

The evidence reveals the following pertinent facts: On December 8, 1978 Chester Simmons, a fifty-one year old man with a fifth grade education, was driving a truck for his employer, Champion, when it overturned, causing injury to his head and back.

Simmons was taken to the Huntsville Hospital where he was placed under the care of Dr. Triplett. On February 14, 1979 Dr. Triplett released Simmons from the hospital and also said that he could return to work on February 19, 1979. Simmons testified, however, that he told Triplett that he (Simmons) was still suffering from dizziness.

About the time Dr. Triplett released Simmons for work, Champion terminated Simmons’ job. Simmons did not work anywhere during the rest of 1979 and up until about March 24, 1980, when he was given a job by Champion riding a tree planter. Simmons worked four days and stopped because it hurt his back and neck.

During the period between the accident and the date of trial, Simmons consulted several doctors besides Dr. Triplett for dizziness and back and neck pain which he testified was the result of the accident on December 8,1978. Simmons said at trial he was still suffering pain and dizziness and that this prevented him from working.

Several doctors who examined Simmons released him for work. Some of the doctors said Simmons could do only light work, although Dr. Triplett said he could return to truck driving.

One of Simmons’ doctors, Dr. Jacobs, said that Simmons could do some work, yet he emphasized that Simmons could not drive a truck or do any work requiring bending, stooping, or twisting. He said this sort of activity could bring on a dizzy spell and cause Simmons to become unbalanced and possibly fall. Dr. Jacobs further testified that he had no idea how long the dizziness that Simmons was experiencing would continue. He said it is possible Simmons will recover from the dizziness but he has no idea when this will occur.

After the trial court rendered its decision on June 27, 1980 awarding him temporary total benefits, Simmons again sought work at Champion. He was employed by Champion and the first day was given a job burning brush. The next two days he was told to service trucks. He stopped working after the third day because his back hurt.

Simmons said he wanted to work and tried to work but that the jobs he had been given by Champion, other than burning brush and marking trees, hurt his back.

Mr. Simmons has no formal training and no particular skills other than truck driving and manual labor. He says he cannot drive a truck or do manual labor requiring bending, stooping, twisting, or lifting heavy objects. He says he still suffers from dizziness and has pain in his back for which he is presently taking medication.

Champion’s first issue here is that there is no legal evidence to support the trial court’s award of temporary total benefits to the date of trial and two hundred nineteen weeks in the future. We disagree.

As we have often stated, the standard of review in workmen’s compensation cases is whether there is any legal evidence to support the trial court’s findings of fact. Moses v. Pitney Bowes, Inc., Ala.Civ.App., 368 So.2d 543, writ quashed, Ala., 368 So.2d 545 (1979). We will not weigh the evidence, but we will look to see if there is any legal evidence to support the findings. And, if there is legal evidence, or a reasonable inference therefrom, to support the fact findings, those findings will not be disturbed on appeal. Defense Ordinance Corp. v. England, 52 Ala.App. 565, 295 So.2d 419 (1974).

There is evidence in the record from which it could be found that Simmons was temporarily and totally disabled from the time of the accident to the date of the judgment. Simmons testified that he could not work because of the pain in his neck, back and head, and also because of having dizzy spells that caused him to act like a drunk person.

The doctors who examined and treated Simmons were in disagreement about his condition and as to the kind of work he could do. Some of the doctors opined that Simmons could return to driving a truck, while others said he could do only light duty work.

In view of this evidence, we cannot say that the trial court’s finding that Simmons was temporarily totally disabled prior to trial is unsupported by the evidence.

Champion also says that the trial court erred in awarding Simmons temporary total benefits for two hundred nineteen weeks into the future.

In Albertville Nursing Home v. Upton, Ala.Civ.App., 383 So.2d 544 (1980), we said:

In a case involving temporary total disability where the claimant is totally disabled at the time of trial, it becomes the duty of the court to make some estimate from the evidence as to its probable duration and fix the compensation to be payable until such estimated time, not exceeding the maximum. Ford v. Crystal Co., 238 Ala. 187, 189 So. 730 (1939).

Having determined that temporary total benefits can be awarded to a claimant in a workmen’s compensation case beyond the date of trial but not to exceed the maximum number of weeks allowed under the workmen’s compensation law, the only question left to be decided in the case at bar is whether the evidence supports such a finding. We hold that it does.

Simmons testified at trial that he was still suffering from dizzy spells and that his back hurt him, for which he was taking medication and wearing a neck brace. Dr. Jacobs stated that he had no idea how long Simmons would experience dizzy spells; he said it is possible that Simmons would recover but that he did not know when.

Based on this evidence we cannot say that the trial court’s finding that Simmons should receive temporary total benefits in the future is erroneous.

Champion says next that the trial court committed error in its findings of fact by not specifying those medical expenses incurred by Simmons that were due to be paid by Champion.

In its findings of fact the trial court said:

(8) That the defendant is obligated to provide medical benefits unto the plaintiff as provided by the Workmans Compensation Act of the State of Alabama.
C. That the defendant shall furnish all necessary and reasonable medical, hospital, etc., expenses, as provided by the Workmans Compensation Act of Alabama, including accrued expenses and further expenses.

Champion argues that this finding of fact by the trial court does not specify what medical expenses it is required to pay, and points out that Simmons admitted not having Champion’s approval to seek medical services from Drs. Jacobs, Hall and Bed-dow, nor did he have approval to be admitted to Decatur General Hospital.

Simmons replies that no issue was made at trial as to the necessity for or value of any medical expense incurred by him and, furthermore, that all medical expenses had been paid by Champion’s workmen’s compensation insurer.

Champion says that neither it nor its insurer has paid any medical bills for Simmons since February 1979.

Section 25-5-77(a), Code of Alabama 1975 provides in pertinent part as follows:

[T]he employer shall pay the actual cost of reasonably necessary medical and surgical treatment and attention, physical rehabilitation, medicine, medical and surgical supplies, crutches, original artificial members and other apparatus as may be obtained by the injured employee .... If the employee is dissatisfied with the initial treating physician selected by the employer and if further treatment is required, the employee may so advise the employer, and in such event the employee shall be referred to a second physician selected by the employer. If the employee is dissatisfied with the second physician selected by the employer, the employee may so advise the employer; and, in such event the employee shall be referred to a third physician selected by the employer... . The total liability of the employer shall be limited to such charges as prevail for similar treatment in the community where the injured employee resides.... All cases of dispute as to the necessity and value of such services shall be determined by the tribunal having jurisdiction of the claim of the injured employee for compensation.

The above cited Code section requires the employer to pay the actual cost of reasonably necessary medical expenses incurred by the employee, and it sets out the procedure for selecting the treating physicians. The Code section then provides that if a dispute arises as to the necessity or value of such services, the court having jurisdiction of the compensation claim shall resolve the dispute.

In the instant case the value of or necessity for the medical services was apparently not in dispute. Simmons offered into evidence without objection the hospital records of several hospitals where he had been treated, but no point was made about the value or necessity of the services, and there is no other evidence in the record relating to the value of medical expenses. Possibly the reason why no issue was raised as to the medical expenses is that, as Simmons said in brief, the medical expenses had been paid and he saw no point in raising that as an issue.

Champion replies that no medical expenses have been paid on Simmons’ behalf since February 1979. Yet Simmons testified that he took his medical bills to Cor-nett, an employee of Champion, and Cor-nett helped him fill out the forms to send to the insurer for payment. He also said that Dr. Beddow endorsed a check over to him from the insurer.

Since Simmons has not questioned the payment of medical expenses and Champion says it has not paid any medical bills on Simmons’ behalf since February 1979, we perceive no fault in the trial court’s finding that Champion is to pay only those medical expenses for Simmons which it is required to pay by § 25-5-77(a).

Should a dispute arise in the future over the failure of Champion to pay medical expenses that may be due Simmons, such dispute can be resolved by the court that awarded compensation benefits to Simmons.

In the circumstances presented by this case, we find no error in the trial court’s finding as to medical expenses requiring reversal.

Finally, Champion argues that the trial court erred in overruling its motion to vacate the final judgment, or, in the alternative, its motion for new trial. We find no error here.

In support of its motion, Champion argued before the trial court and here that the trial court’s judgment was not supported by the evidence, that newly discovered evidence warranted a new trial, and that Simmons had committed a fraud on the court and, therefore, the judgment should be vacated.

Champion’s motion was supported by three affidavits, one made by Dr. Chenault who examined Simmons after the trial on the merits, one by an employee of Champion who talked to Simmons after the final judgment was rendered, and one by the attorney for Champion. Champion also introduced the deposition of Dr. Beddow, who gave Simmons a work-release slip for light duty after the judgment on the merits.

At the hearing on the new trial motion, Simmons and his wife took the stand and testified in opposition thereto. After the evidentiary hearing the trial court overruled the motion.

A ruling on a motion for new trial is within the sound discretion of the trial court and should not be disturbed on appeal unless some legal right was abused and the record plainly and palpably shows that the trial court was in error. Trans-South-Rent-A-Car, Inc. v. Wein, Ala., 378 So.2d 725 (1979); Gilmer v. Salter, 285 Ala. 671, 235 So.2d 813 (1970).

As previously noted, Champion introduced in support of its motion for new trial three affidavits and a deposition and Simmons introduced his testimony and that of his wife in opposition to the motion.

Through its evidence Champion attempted to show that the evidence submitted at the trial in chief did not support an award of temporary total benefits for the maximum period allowed by the act; that the evidence submitted at the motion for new trial, i. e. newly discovered evidence, showed that Simmons went to Dr. Beddow after the judgment on the merits and sought a work-release slip so that he could return to work at Champion and that this evidence shows a fraud committed on the court by Simmons because he went to Dr. Beddow for a work-release slip shortly after the judgment awarding him temporary total benefits.

Simmons testified that his dizziness and back problems resulted from the truck wreck and that he still suffers from these problems.

Simmons said he had not worked since the wreck except the four days he worked for Champion shortly before the trial, and he had not received any money from workmen’s compensation since February 1979. Simmons said he needed to work to earn money to pay his living expenses. He said he thought he could do some type of work such as burning brush or marking trees. He went to his union representative and asked for work at Champion. Simmons was told that if he got a light duty slip from a doctor he could return to work. Simmons went to see Dr. Beddow and asked for a light duty slip. He was given one and he reported to Cornett at Champion. Simmons worked three days and stopped because of dizzy spells and back problems. Simmons said he wanted to work and needed to work but that he could not do some of the jobs that he had been given to do at Champion.

Based on this evidence we do not believe that the trial court committed plain and palpable error by overruling Champion’s motion for new trial. No error here.

For the reasons above set out, the judgment of the trial court is affirmed.

AFFIRMED.

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


text:
    Walter George (Jack) MECHAM v. Joyce MECHAM.
    Civ. 2553.
    Court of Civil Appeals of Alabama.
    April 15, 1981.
    James F. Hinton, Gadsden, for appellant.
    Michael L. Roberts of Floyd, Keener & Cusimano, Gadsden, for appellee.
   EDWARD N. SCRUGGS, Retired Circuit Judge.

A former husband sought to terminate periodic alimony to his ex wife upon the ground that she was “living openly or cohabiting with a member of the opposite sex.” § 30-2-55, Code of Alabama of 1975.

The evidence conflicted. Part of the testimony, if believed and considered alone, was sufficient to authorize the termination of alimony. On the other hand, portions of the evidence were adequate to defeat his objective of ending his alimony obligation.

Whether an ex spouse is living openly or cohabiting with a member of the opposite sex is a question of fact to be determined by the trial court when the evidence thereon conflicts. After an ore tenus trial in the circuit court, that court determined that periodic alimony should not be terminated and that it should continue to be paid. While that decision could have been just the opposite in view of the state of the evidence in this case, the judgment of the trial court is presumed to be correct, and we must affirm for it is not plainly and palpably wrong. Jones v. Jones, Ala.Civ. App., 387 So.2d 217, cert. denied, Ala., 387 So.2d 219 (1980); Etheridge v. Etheridge, Ala.Civ.App., 379 So.2d 87, cert. denied, Ala., 379 So.2d 89 (1979); Ivey v. Ivey, Ala.Civ.App., 378 So.2d 1151 (1979); Parish v. Parish, Ala.Civ.App., 374 So.2d 348, cert. denied, Ala., 374 So.2d 351 (1979); Atkinson v. Atkinson, Ala.Civ.App., 372 So.2d 1106 (1979).

The former wife has requested an attorney’s fee on appeal. A fee of $350 is awarded.

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

AFFIRMED.

All the Judges concur.


text:
    Edna Pointer SLATON v. Ruth D. SHELL, As Administratrix of the Estate of J. F. Dalrymple, Deceased.
    Civ. 2582.
    Court of Civil Appeals of Alabama.
    April 15, 1981.
    William M. Beck, Sr. of Beck & Beck, Fort Payne, for appellant.
    John Baker, Fort Payne, for appellee.
   EDWARD N. SCRUGGS, Retired Circuit Judge.

Mrs. Slaton, the claimant, appeals from the denial of her contested claim which she had filed against her father’s estate.

On September 7, 1962, the claimant borrowed $4,500 from her father, J. F. Dalrym-ple. The debt was secured by a real estate mortgage and a note of the same date payable by monthly payments of $60 per month beginning on October 3, 1962, and continuing thereafter until the $4,500 was fully paid. Interest was not mentioned in any manner in either the note or in the mortgage. The claimant made some payments upon the mortgage indebtedness, the last being on August 3, 1963.

Mr. Dalrymple died on February 18,1965, and Mrs. Shell was appointed as administra-trix of his estate on June 6, 1979.

The claimant entered into a profitable agreement to sell the land covered by the mortgage to a third party. She and the administratrix disagreed as to whether interest was payable upon the note and mortgage. The administratrix computed the indebtedness at $3,900 as principal and $3,276 as interest. In order to secure the satisfaction of the mortgage and to prevent the loss of the sale of her property, the claimant paid the total contested amount of $7,176. In due time, she filed her claim against the estate for a return of the interest of $3,276 and of a further disputed sum not involved on this appeal. The administratrix denied the claim by her answer. After a non-jury trial, the circuit judge rendered judgment denying the claim.

The claimant contends first, that no interest was due to be paid and she is entitled to its refund since the note and mortgage did not mention interest; and, second that the court erred in certain evidentiary matters.

Interest

In Davis v. Anderson, 224 Ala. 400, 140 So. 423 (1932), it was stated, “The other note is silent as to the rate of interest, so it should bear interest at the legal rate from maturity.... ”

That rule is echoed by the Uniform Commercial Code, where, in § 7-3-122(4), Code of Alabama (1975), the following appears, “Unless an instrument provides otherwise, interest runs at the rate provided by law for a judgment ... from the date of accrual of the cause of action.” That section has been properly interpreted to mean that “[Wjhen no rate of interest is stated in the instrument and no contrary provision is made, interest runs ... at the judgment rate from the date of accrual of the cause of action.” 2 Anderson, Uniform Commercial Code, 2d ed., § 3-122.6 at 745.

Additionally, § 8-8-8 of the Code of 1975 applies wherein it is provided that all contracts for the payment of money bear interest from the date that it should have been paid.

There is no real dispute over the adminis-tratrix’ computation of interest, the controversy being over whether the claimant was due to pay it at all. We hold that the law required the payment of interest on each unpaid installment from the date it became delinquent. The trial court did not err in that regard.

Evidence

One of the claimant’s brothers was asked on direct examination by her attorney, “Did you ever talk to your father about Mrs. Slaton’s mortgage and the note she owed him?” Similar questions were propounded to that brother’s wife by the claimant’s counsel on direct. The trial court sustained the objections of the administratrix thereto.

The approximate time of any such conversation with Mr. Dalrymple was never stated. For aught that appears, the alleged conversations occurred prior to the execution of the note and mortgage. There was no effort to prove a subsequent agreement between the claimant and Mr. Dalrymple that the debt not bear interest after breach, default or maturity. Since the note, as a matter of law, drew interest after maturity, if the evidence was offered as an attempt to vary or contradict it, such evidence would be inadmissible. Notes are subject to the general rule that a valid written instrument cannot be varied or contradicted by parol evidence. Redmond v. Harrelson, 355 So.2d 356 (Ala.1978). For these reasons, the trial judge was justified in sustaining objections to those questions.

We affirm.

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

AFFIRMED.

All the Judges concur.


text:
    Hattie R. QUICK v. DIRECTOR OF STATE OF ALABAMA DEPARTMENT OF INDUSTRIAL RELATIONS and Blue Bell, Inc.
    Civ. 2649.
    Court of Civil Appeals of Alabama.
    April 15, 1981.

      Dan J. Willingham, Cullman, for appellant.
    George Cocoris, Gen. Counsel, and Harry A. Lyles, Asst. Gen. Counsel, Montgomery, for appellees.
   EDWARD N. SCRUGGS, Retired Circuit Judge.

This is an unemployment compensation case. Mrs. Quick, the claimant, appeals.

At the conclusion of the claimant’s evidence, the department moved for “a directed verdict” upon the ground that the claimant had not met her burden of proof under § 25-4-77 of the Code of Alabama of 1975, which contains the following provisions:

An unemployed individual shall be eligible to receive benefits with respect to any week only if the director finds that:
(3) He is physically and mentally able to perform work of a character which he is qualified to perform by past experience or training, and he is available for such work ....

The trial court overruled that motion of the department; however, the final judgment determined that the claimant was disqualified, and was not eligible to receive unemployment benefits under the laws of Alabama.

In State Department of Industrial Relations v. Thomas, 55 Ala.App. 712, 715, 318 So.2d 739, 741 (1975), a judgment awarding unemployment benefits was reversed. Therein, it was stated:

The trial court’s finding that the claimant was eligible to receive benefits is without support in the evidence. After a very careful review of the record in this case we are unable to find any evidence to support a finding that claimant was able and available for work which she was qualified to do. Such proof was necessary to sustain claimant’s case and, in its absence, an essential element of her case fails. As a consequence, she would not be entitled to any benefits under the Alabama unemployment compensation law.

Of like tenor, see also, State Department of Industrial Relations v. Downey, Ala.Civ. App., 380 So.2d 906 (1980); Director of State Department of Industrial Relations v. Harbin, Ala.Civ.App., 365 So.2d 313 (1978).

Thus, the law is very clear and certain that the burden is upon a claimant who sues for unemployment compensation to establish by sufficient evidence, or by proper and adequate stipulation, that she was available for work during the time for which she seeks benefits. Here, the evidence did not touch upon, and the stipulation" did not cover, those requirements, conditions or burden. Therefore, we have no alternative but to affirm the judgment of the learned trial court.

Since this case must be affirmed for the foregoing reason, we pretermit a decision on other issues argued on appeal.

Parenthetically, we note that a “motion for a directed verdict” in a non-jury case is a very common misnomer which is utilized by many practicing attorneys. While courts consider such motions upon their merits rather than by their erroneous designation, memories should be jogged that:

After the plaintiff, in an action tried by the court without a jury, has completed the presentation of his evidence, the defendant . .. may move for a dismissal on the ground that upon the facts and the law the plaintiff has shown no right to relief. (Emphasis ours)

ARCP, rule 41(b). In a non-jury case the proper designation for such a motion is a “motion for a dismissal,” and it substantially serves the same purpose as does a rule 50 motion for a directed verdict in a jury trial.

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

AFFIRMED.

All the Judges concur.


text:
    Billy Joe ALLDRIDGE v. METRO BANK, a Bank Corporation.
    Civ. 2693.
    Court of Civil Appeals of Alabama.
    April 15, 1981.

      Ralph E. Coleman, Birmingham, for appellant.
    Richard F. Ogle of Denaburg, Schoel, Meyerson & Ogle, Birmingham, for appel-lee.
   BRADLEY, Judge.

On September 28, 1977 one Thurston Glaze, a resident of Hueytown, Alabama, executed a chattel mortgage in favor of Mutual Savings Credit Union (hereinafter referred to as Mutual Savings) granting the latter a security interest in a boat, motor, and trailer which he had purchased. Mutual Savings filed a financing statement covering the aforementioned collateral for its loan to Glaze with the office of the probate judge of Jefferson County, Alabama on October 7, 1977. On October 10, 1977 Mr. Glaze signed a promissory note granting appellee, Metro Bank, a security interest in the boat, motor, and trailer in exchange for a $6,900 loan. Appellee perfected its interest by filing a financing statement covering the collateral with the office of the probate judge of Jefferson County on October 13, 1977. By a bill of sale dated February 9, 1978, Mr. Glaze sold the boat, motor, and trailer to appellant, Billy Joe Alldridge, for $5,200. Appellant stated that at the time of this sale he did not know that the boat, motor, and trailer were subject to any security interest held by any creditor. Mr. Alldridge first acquired knowledge of Mutual Savings’ security interest in the boat, motor, and trailer when he applied with Mutual Savings for a loan of $3,500 to furnish part of the $5,200 he needed to purchase them from Glaze. Alldridge granted Mutual Savings a new security interest in the boat, motor, and trailer in return for the loan. On February 10, 1978 appellant gave Glaze a check for $5,200. Glaze, in turn, used the proceeds from this check and $1,100 of his own money to pay off Mutual Savings’ chattel mortgage on the boat, motor, and trailer. Appellant did not become aware of Metro Bank’s security interest in the boat, motor, and trailer until June 1979 when a bank officer telephoned him and informed him that the bank had an enforceable security interest in these items. Appellant refused to return the boat, motor, or trailer to Metro Bank at any time, however, before appellee instituted the present action in the Circuit Court of Jefferson County on June 22, 1979 against Mr. Glaze and him alleging (1) that Glaze had defaulted on the payment of appellee’s promissory note and was, therefore, answerable in damages to appellee, (2) that both men had converted the boat, motor, and trailer to their own use and were, as a consequence, liable to appellee for $17,000 in compensatory and punitive damages, and (3) that appellant had wrongfully detained appellee’s secured collateral and should, consequently, be required to pay appellee $3,000 in damages for such detention and either to surrender possession of same to appellee or to pay appellee the value thereof.

Appellant generally denied all the material allegations of appellee’s complaint and counterclaimed for damages which he allegedly incurred as a proximate result of appellee’s “negligence” in loaning money to Mr. Glaze and in “attempting” to acquire a security interest in the boat, motor, and trailer. On January 28, 1980 appellee moved the circuit court to enter a summary judgment in its favor against appellant and Thurston Glaze based upon all of the pleadings previously filed in the action, appellant’s deposition, and the sworn affidavit of appellee’s vice president. Metro Bank subsequently amended its motion to request the court to enter a summary judgment in its favor on appellant’s counterclaim on the following grounds:

(A) That the Counterclaim of the Defendant, ALLDRIDGE, fails to state a cause of action against the plaintiff, METRO BANK;
(B) That even assuming that the Counterclaim filed by the Defendant, ALLD-RIDGE, could be considered to state a cause of action against the Plaintiff, BANK, it is clear that any such cause of action is barred by the statute of limitations of one year.
(C) That the Plaintiff has a valid perfected security interest in the personal property in question and could not, under any set of facts, be obligated to the Defendant, ALLDRIDGE, with whom (as is made clear by the deposition of the Defendant, ALLDRIDGE) the Plaintiff BANK has never dealt.

Appellant filed an affidavit in opposition to this motion alleging, in substance, that Mutual Savings had assigned to him all of its rights in its September 28, 1977 security interest on the boat, motor, and trailer, that this security interest was perfected before appellee’s security interest in the aforementioned items of personalty was ever perfected, and that, therefore, appellant and not appellee was entitled to possession of the secured collateral.

On March 6, 1980 the circuit court granted appellee’s motion for summary judgment against Glaze and appellant awarding ap-pellee the alternate value of the boat, motor, and trailer. The court vacated this judgment on March 11, 1980 substituting therefor a summary judgment in favor of appellee which was substantially identical to that entered in its favor on March 6 with these exceptions: (1) appellee was awarded possession of the boat, motor, and trailer; (2) appellee’s claim for damages for appellant’s conversion of this personalty and its “claim in detinue praying for damages for the ‘reasonable value for the hire or use’ during the ‘wrongful detention by the Defendant’ [i. e. appellant] of the personal property in question” were set down for a jury trial; (3) appellee was granted a summary judgment in its favor on appellant’s counterclaim on the ground that the counterclaim failed to state a cause of action for which relief could be granted. Appellant subsequently filed a “motion for new trial” requesting the circuit court to set aside its March 11, 1980 summary judgment order. This motion was overruled on May 7, 1980. Appellant then appealed to the Alabama Supreme Court from the denial of this motion. That court, on July 18, 1980, dismissed appellant’s appeal “on the ground that the order from which the appeal was taken was not a final order.” On October 2, 1980 the circuit court entered an order, pursuant to Rule 54(b) of the Alabama Rules of Civil Procedure (hereinafter referred to as ARCP), that those matters determined in favor of appellee by its summary judgment order of March 11, 1980 should be considered final. That same day appellant filed a notice of appeal to the Alabama Supreme Court from this purported final judgment of the circuit court. That court subsequently transferred this case to this court.

Although not raised as an issue by either party to the appeal, this court considers it necessary to determine, ex mero motu, whether it has jurisdiction to decide the appeal in question. Jim Walter Homes, Inc. v. Holman, Ala.Civ.App., 373 So.2d 869 (1979). We hold that the trial court’s October 2, 1980 order is not such a final judgment under ARCP 54(b) as will support an appeal to this court; accordingly we dismiss the appeal for lack of jurisdiction.

Rule 54(b) of the ARCP reads, in part, as follows:&wkey;

When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third-party claim, or when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment.

In Robinson v. Computer Servicenters, Inc., Ala., 360 So.2d 299 (1978), our supreme court, after noting that “[a]n appeal will not lie from an order of judgment which is not final,” made the following observation:

[T]he trial court cannot confer appellate jurisdiction upon this court through directing entry of judgment under Rule 54(b) if the judgment is not otherwise “final.”

A court order granting a partial summary judgment in favor of the moving party which only establishes the nonmoving party’s liability to the movant is an interlocutory judgment, “and where assessment of damages or awarding of other relief remains to be resolved [has] never been considered to be [a] ‘final’ [judgment].” Liberty Mutual Insurance Co. v. Wetzel, 424 U.S. 737, 96 S.Ct. 1202, 47 L.Ed.2d 435 (1976). Thus, if the summary judgment awarded Metro Bank by the circuit court on March 11, 1980 established that appellant was liable to appellee for conversion and unlawful detention of its secured collateral but failed to award appellee damages, pursuant to a jury verdict, for such tortious conduct, such a judgment was not then a final judgment and the court’s October 2,1980 order directing an entry of judgment against appellant in accordance with ARCP 54(b) could not subsequently transform it into a final judgment from which an appeal might be properly prosecuted to this court. “Automatic" Sprinkler Corp. of America v. B. F. Goodrich Co., Ala., 351 So.2d 555 (1977).

The circuit court’s March 11, 1980 order granting Metro Bank a partial summary judgment against Mr. Alldridge in effect determined that appellee was entitled to possession of the boat, motor, and trailer and that appellant was liable to appellee for conversion and unlawful detention of this property. The order awarded appellee immediate possession of the personalty but specifically reserved for a jury’s determination the amount, if any, of appellee’s damages for appellant’s conversion and wrongful detention of such property. We discern no error in this action of the circuit court. See generally Ballenger v. Liberty National Life Insurance Co., 266 Ala. 407, 96 So.2d 728 (1957) (claim for conversion is a legal claim; damages to be assessed by jury); § 6-6-256,1975 Code of Alabama (statutory detinue) (“[u]pon the trial the jury must, if it finds for the plaintiff, assess the válue of each article separately, if practicable, and also assess damages for its detention”) (emphasis ours); ARCP 56(d). However, to date, no jury has returned a verdict in this cause assessing Metro Bank’s damages for Mr. Alldridge’s conversion and wrongful detention of its secured collateral. It follows that the March 11, 1980 judgment of the circuit court is not a final judgment the validity of which may be presently determined by this court on this appeal. See Robinson v. Computer Servicenters, Inc., supra. The court’s October 2,1980 54(b) order could not change this interlocutory judgment into a final judgment.

The appeal is due to be and hereby is dismissed.

APPEAL DISMISSED. ■

WRIGHT, P. J., concurs.

HOLMES, J., concurs in the result.


text:
    Delma JOHNSON v. DAIRYLAND INSURANCE COMPANY.
    Civ. 2608.
    Court of Civil Appeals of Alabama.
    April 22, 1981.

      J. Milton Coxwell, Jr. of Coxwell & Cox-well, Monroeville, for appellant.
    W. Alexander Moseley of Hand, Arendall, Bedsole, Greaves & Johnston, Mobile, for appellee.
   BRADLEY, Judge.

This is an appeal from a summary judgment holding that an automobile insurance policy was not in effect at the time of an accident. We affirm.

Both parties introduced evidence in the way of documents, correspondence and the like on the motion for summary judgment made by the defendant. The undisputed and relevant facts are set forth. Ms. Delma Johnson (appellant hereinafter Johnson) paid $91.00 for an initial premium of an automobile insurance policy with a check dated September 29, 1979. The period of the policy began on October 1, 1979. On October 4, 1979 Dairyland Insurance Company (appellee hereinafter Dairyland) issued its “Plain-talk” policy to its local agent who received it on October 8, 1979. The $91.00 premium check was returned to Dairyland on either October 6 or 9; the date is not clear on the back of the check. On October 11,1979 Johnson’s son, a named driver in the policy, had a collision. The next day he reported the accident to the local agent.

The “Commission Register” of Dairyland for the period ending 10/15/79 reflects two entries for Johnson. The first entry is for another policy which was “Expired” on 9/17. The second entry is for the present policy and reflects the gross premium of $91.00, with premium paid of $91.00, with commission earned of $9.10, and with a balance due agent of $9.10.

On Friday, October 19, an office memo regarding “NSF Checks” listed Johnson as one of a list of persons on the not sufficient funds list. On October 22, the following Monday, Dairyland sent Johnson a form letter styled: “Redeposited Check Not Honored,” which stated in part:

Your premium check .. . has been returned a second time by your bank advising it could not be honored due to insufficient funds in your account.
The insurance application . .. clearly state[s] that if a check tendered for premium payment is not honored, no coverage is granted.
THUS, NO INSURANCE COVERAGE HAS BEEN GRANTED TO YOU.

Also on October 22 the policy agreement (or a copy of it) was returned to the local agent and Johnson with a typed notation: “THE POLICY HAS EXPIRED DUE TO NONPAYMENT OF PREMIUM.”

Based on the pleadings and exhibits, the trial court granted Dairyland’s motion for summary judgment. In effect, the court ruled that there was no contract of insurance entered into between the parties. We agree.

Johnson raises one issue on appeal: whether the tendered but subsequently dishonored check for insufficient funds constitutes payment of the initial premium.

Payment of premium is generally necessary as a condition precedent to an enforceable contract of insurance. Queen Insurance Co. of America v. Bethel Church, 27 Ala.App. 443, 174 So. 638, cert. denied, 234 Ala. 184, 174 So. 640 (1937); Royal Insurance Co. v. Eggleston, 19 Ala.App. 638, 99 So. 828 (1924). As a general rule, payment by check is conditional payment only, to be effective as a satisfaction of the original demand when and if the check is cashed. Jefferson Motors Co. v. Williams, 227 Ala. 432, 150 So. 355 (1933); Ross v. State Life Insurance Co., 225 Ala. 410, 143 So. 827 (1932).

Johnson concedes that payment of the initial premium was a condition precedent to the contract of insurance. She contends that the general rule that payment by check is conditional upon the check being cashed does not apply, but that the case is governed by an exception to the general rule to the effect that the parties may agree to make the check itself as absolute payment.

The parties may by either express agreement or an agreement implied from the circumstances consider a check as accepted as absolute payment and satisfaction of the original demand. Jefferson Motors Co., supra. The burden is on the party claiming such an agreement to prove an agreement to that effect. Jefferson Motor Co., supra.

Johnson does not contend that there was an express agreement to treat the check as absolute acceptance. Rather, she sets forth several factual factors in support of her burden to prove an implied agreement: (1) issuance of a policy declaration which was absolute and unconditional on its face; (2) attempts to collect payment of the check after original dishonor; (3) entry of the amount of the check as a cash item in the Commission Register; and (4) notifying Johnson that her policy had expired.

We hold that none of these factors standing alone or taken together furnish the evidence to establish the burden placed on Johnson to prove an implied agreement to accept the check as absolute payment.

As to the first factor, making a policy on presentation of a premium is simply evidence of a willingness to enter into a contract of insurance and not a contract of insurance. Royal Insurance Co. v. Eggleston, supra. Moreover, the plaintalk policy clearly required “your payment of the Premium.”

The second factor of attempting to cash the previously dishonored check is likewise unavailing. Johnson relies on Inter-Ocean Casualty Co. v. Anderson, 245 Ala. 534, 17 So.2d 766 (1944) where the question of acceptance of a check was said to be a jury question. However, in Anderson it is clear that the factual background was that of a long course of dealings where insured was lax in paying on time and the company had been accepting the checks as payment. Johnson shows no course of dealings where Dairyland can be said to have accepted the check. Rather, the undisputed evidence is to the effect that Dairyland has an apparently established consumer oriented policy of attempting twice to cash the check before voiding the policy. The evidence showed Johnson on the NSF list posted on Friday, October 19, with the form letter mailed out the following Monday informing Johnson of lack of coverage.

Likewise, we find the contention that Dairyland treated the check as cash by entering the premium in the Commission Register insubstantial. At most this act reveals a bookkeeping procedure whereby Dairy-land accounts for premium payments. No more weight will be given to-this contention than was given to the argument in Jefferson Motors Co. v. Williams, supra, that a receipt held by the insured evidencing that the premium had been “paid by check” would be evidence that an agreement had been made to accept the check as payment of the premium.

Finally, Johnson argues that the notation “THE POLICY HAS EXPIRED DUE TO NON-PAYMENT OF PREMIUM” on the policy, dated October 22, is inconsistent with no coverage because the word “expired” was used. But, Johnson does not support this contention with any legal definition, trade usage or case law. The entire notation certainly suggests nothing more or less than that Dairyland was relying on the general principle that payment of the premium is a condition precedent to the formation of the contract of insurance.

The granting of summary judgment for Dairyland on the theory that Johnson had not complied with the condition precedent of payment of the initial premium which was required by Dairyland is affirmed.

AFFIRMED.

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


author: BOWEN, Judge.

text:
    Thomas Randall WATSON v. STATE.
    1 Div. 76.
    Court of Criminal Appeals of Alabama.
    Oct. 7, 1980.
    Rehearing Denied Nov. 25, 1980.

      Sterling G. Culpepper and Julia S. Waters of Smith, Bowman, Thagard, Crook & Cul-pepper, Montgomery, Rivard D. Melson and Paul M. Harden, Monroeville, for appellant.
    Charles A. Graddick, Atty. Gen. and Elizabeth Ann Evans, Asst. Atty. Gen., for ap-pellee.
   BOWEN, Judge.

The defendant was indicted and convicted for perjury. Alabama Code Section 13-5-111 (1975). The trial court fixed his punishment at three years in the State penitentiary.

I

To sustain a conviction for perjury there must be testimony of two witnesses to the corpus delicti or one witness with strong corroborative evidence. Ex parte Oglesby, 337 So.2d 381 (Ala.1976); Murry v. State, 367 So.2d 985 (Ala.Cr.App.1978), cert. denied, 367 So.2d 989 (Ala.1979). The defendant maintains that the State failed to meet this burden of proof. We disagree.

Prior to his indictment, the defendant and his wife were the plaintiffs in a civil action for slander against several defendants, including M. M. Kennedy, Jr., the State’s key witness here. The indictment charges the defendant with giving perjured testimony at a sworn deposition concerning this civil action. The indictment specifically charges the defendant with falsely swearing at his deposition on November 2, 1978, that he had not had a telephone conversation with Kennedy on July 21, 1978, in which nine tapes, seventy-five thousand dollars and certain other matters were discussed, “the matters so sworn to being material, and the oath of the said Thomas Randall Watson in relation to such matters being willfully and corruptly false.”

M. M. Kennedy, Jr. testified that a telephone conversation between himself, Thomas Andrews and the defendant occurred on July 21, 1978, at approximately 3:15 P.M.:

“The substance of the conversation was that I was to supply seventy-five thousand dollars to Randall Watson and a bill of sale for a black four wheel drive pickup truck in return for nine tapes'which he had of conversations between me and his wife, as well as some pictures.”

Kennedy stated that the defendant had informed him that he would deliver a tape recording “of the same nature” to Kennedy’s wife, along with pictures of Kennedy and the defendant’s wife together, if Kennedy did not produce the seventy-five thousand dollars and the bill of sale for the truck. Kennedy allowed state law enforcement agents to record the July 21st telephone conversation.

Sergeant Gene Mitchell of the Department of Public Safety was present when a telephone conversation between the defendant, Thomas Andrews and Kennedy was recorded shortly after 3:00 P.M. at Kennedy’s house on July 21st. Sergeant Mitchell testified that he and Kennedy listened to the tape at the conclusion of the conversation, and that he could identify each voice in the recording. Mitchell further stated that Ms. Drew Nunnally, a stenographer for the Attorney General’s Office, was present on two occasions when he and Kennedy listened to the July 21st tape, and that Ms. Nunnally fully and accurately transcribed the entire recording. This tape was played in the presence of the jury, and, each member of the jury was furnished a transcript of the conversation.

Mrs. Betty J. Maurer was a court reporter. On November 2, 1978, Mrs. Maurer, in her capacity as notary public, placed the defendant under oath and took his deposition at the Monroe County Courthouse. Mrs. Maurer transcribed the entire deposition and read pertinent parts of it into evidence. In the deposition the defendant absolutely denied that he had a telephone conversation with Kennedy on July 21, 1978: “I haven’t talked to him at all.” The defendant denied discussing with Kennedy each particular portion of the conversation alleged in the indictment. At the conclusion of Mrs. Maurer’s testimony the State rested its case. The defendant’s motion to exclude the evidence was overruled.

We find the State’s evidence sufficient to prove beyond any reasonable doubt that the defendant is guilty of perjury. The defendant swore under oath at his November 2, 1978, deposition that he had had no telephone conversation whatsoever with Kennedy on July 21, 1978. To question after question in his deposition the defendant swore that he had not discussed any of the matters with Kennedy which are averred in the present indictment and which appear in the tape recording of the conversation.

The falsity of the defendant’s sworn testimony is proved through M. M. Kennedy, Jr., a witness to the corpus delicti of perjury, who testified that the July 21st conversation did occur and that each particular matter averred in the indictment as the substance of the conversation was discussed between the defendant and himself. A witness to the corpus delicti of perjury is a witness who has independent knowledge of the facts to which the defendant has sworn and who testifies, based on that independent knowledge, that the defendant has perjured himself. Ex parte Oglesby, 337 So.2d at 384.

Although there is no second witness to the corpus delicti, Kennedy’s testimony is strongly corroborated. Sergeant Gene Mitchell testified without objection on direct examination that he was present when the July 21st telephone conversation between Kennedy, Andrews and the defendant was recorded. Also without objection, Mitchell testified that the three voices in the taped conversation were those of Kennedy, Andrews and the defendant.

Sergeant Mitchell admitted on his voir dire examination by defense counsel that he could not identify the voices on the tape recording through his own independent knowledge and that his identification of the voices was based on hearsay. However, the defendant made no mention to exclude Sergeant Mitchell’s testimony identifying the voices. No motion to exclude was made, and no questions were proffered concerning Sergeant Mitchell’s voice identifications during his cross examination in the presence of the jury. Although the defendant argues that the tape recording should not have been admitted into evidence because the voices on the recording were never properly identified, we must disagree.

To preserve error there must be a timely and appropriate objection prior to the witness’s answer to a question or a motion to exclude the answer. Jones v. State, 52 Ala.App. 184, 290 So.2d 251 (1974). Where no objection to a question is made, an answer responsive to the question is not open to objection or motion to exclude. Ayers v. State, 48 Ala.App. 743, 267 So.2d 533 (1972). Ordinarily, a witness’s testimony becomes legal evidence if it is received without objection. Wilson v. State, 52 Ala. App. 680, 296 So.2d 774, cert. denied, 292 Ala. 759, 296 So.2d 778, cert. denied, 419 U.S. 845, 95 S.Ct. 79, 42 L.Ed.2d 73 (1974). Hearsay evidence which is admitted without objection becomes lawful evidence. Wilder v. State, 52 Ala.App. 157, 290 So.2d 225 (1974). “The fact that evidence which is introduced in a case may be, if objected to, incompetent evidence under some one or more exclusionary rules of evidence does not destroy its probative effect, if it is admitted without objection.” Smith v. State, 40 Ala.App. 600, 119 So.2d 202, cert. denied, 270 Ala. 741, 119 So.2d 203 (1960).

It has been held time and again that if during the cross examination of a witness it is developed that the witness’s knowledge and testimony on direct examination is based on hearsay, or other inadmissible evidence, the defendant’s remedy is to make a proper motion to exclude such evidence from the jury. Oates v. State, 375 So.2d 1285 (Ala.Cr.App.1979); Allred v. State, 55 Ala.App. 74, 313 So.2d 195 (1975); Smith v. State, 28 Ala.App. 506, 189 So. 86 (1939); Bufkins v. State, 20 Ala.App. 457, 103 So. 902, cert. denied, 212 Ala. 638, 103 So. 906 (1925). Absent such a motion to exclude the trial court cannot be put in error and the entire testimony of the witness remains with the jury. Oates, supra; Allred, supra; Smith, supra; Bufkins, supra.

Applying these principles of law to the facts, Sergeant Mitchell’s voice identifications of Kennedy, Andrews and the defendant were properly allowed to remain before the jury and were strongly corroborative of Kennedy’s testimony.

When courts speak of the corroborative evidence required to establish perjury, they mean “proof of material and independent facts and circumstances, which, taken and considered together, tend in confirmation of the testimony of the single witness to establish the falsity of the oath.” 70 C.J.S. Perjury § 70c(l)(1951). As in the case of accomplice testimony, corroborative evidence need not directly confirm any particular fact stated by the accomplice, Wyatt v. State, 51 Ala.App. 226, 283 So.2d 675 (1973), and it need not go to every material fact to which he testifies. Montgomery v. State, 40 Ala. 684 (1867). Corroboration means to strengthen, not necessarily to prove any specific fact about which the accomplice has testified. Smothers v. State, 38 Ala.App. 153, 83 So.2d 374, cert. denied, 263 Ala. 701, 83 So.2d 376 (1955). Yet, unlike the evidence required to corroborate accomplice testimony, the corroborative evidence required to establish perjury must be strong.

Without question, the tape recording and Sergeant Mitchell’s testimony “tend in confirmation of the testimony of the single witness to establish the falsity of the oath.” On the tape recording itself the parties call each other by name and the name of “Randall” is frequently used by one party in addressing another. These facts and circumstances, coupled with Mr. Kennedy’s identification of the voices on the recording, provide sufficient identification of the voices and strong corroborative evidence of the perjury.

We note that the defendant objected to the admission of the tape recording but had no objection to furnishing the jury with copies of the transcript “to better interpret the tape.” The transcript identified the speakers by name. Defense counsel stipulated that the transcript accurately reflected the information on the tape recording. The trial judge gave the defendant every opportunity to object to both the accuracy and the admissibility of the transcript, but no objections were made.

II

The defendant also alleges that the accuracy of the tape recording machine and tapes was not established and that no safeguards were exercised to prevent spoliation of the tape.

M. M. Kennedy, Jr. testified that he listened to the July 21st tape recording immediately after he “hung up the phone” and that the tape “contained the complete telephone conversation” between himself, Andrews and the defendant and that the tape was accurate and that nothing was deleted. “I initialed it and pulled the tabs out so it couldn’t be altered.” Kennedy stated that he turned the tape over to Sergeant Mitchell and listened to it on two other occasions when it was transcribed. He further stated that he checked the machine to make sure the tape could not be altered after the tabs were pulled out.

On voir dire Kennedy testified again that the three voices on the tape were his own, Andrews’ and the defendant’s. Kennedy stated that the recorder and the tape belonged to the State of Alabama, and that the tape “came out of a brand new pack.” Kennedy further testified that state agents had hooked the recording device to the telephone, but that “I had control of it because I was the one that mashed the button.”

Sergeant Mitchell testified that he “was present with the recorder when we turned it on to the recording position” and saw that Kennedy “actually pushed the button on.” Sergeant Mitchell stated that the tape cassette was in the same condition at trial as it was when he took it out of the recorder on July 21. Mitchell saw Kennedy remove the tabs from the tape to prevent it from being altered. Mitchell testified that the recorder was tested for accuracy prior to the conversation: “We had tried it just before this conversation by putting the date on it through the telephone and it was recording — We played it back and it sounded the same as it had.” Mitchell tested the tape in several ways and determined that it could not be altered without someone replacing the tabs or modifying the recorder. Mitchell further stated that the tape had been in his possession or in the evidence box since July 21. Mitchell admitted that other personnel within the Department of Public Safety could have had access to the tape, but there was no evidence that the tape had been tampered with or disturbed.

Essentially, we have the same situation here that existed in Sexton v. State, 346 So.2d 1177 (Ala.Cr.App.), cert. denied, 346 So.2d 1180 (Ala.1977). There we held that the failure of the State to prove that the recording device used to record the conversation was capable of taking testimony was not error where a law enforcement officer testified that after his telephone conversation with the defendant he listened to the recording and found that it accurately and substantially reflected the conversation in which he had participated. Here, also, the tape recording was admitted without error.

Ill

The defendant next argues that the trial court erred in limiting his cross examination of M. M. Kennedy, Jr. The trial court sustained the State’s objections to the following questions propounded to Kennedy from the defendant:

“Q. Let me ask you this, Mr. Kennedy: Did you ever send Randall (defendant) out of town on personal business for yourself so that you could call his wife?” * * * # * *
“Q. Did you ever call Mrs. Elaine Watson and try to get her to go out with you while Randall was out of town?”
* * * * * *
“Q. Did you try to go with his wife, Mr. Kennedy?”
* * * * * *
“Q. Let me ask you this, Mr. Kennedy: Of your own independent knowledge, does he have any reason to be mad at you?”

The defendant maintains that the foregoing questions were asked to indicate Kennedy’s bias against him and cites Proctor v. State, 331 So.2d 828, 830 (Ala.Cr.App.1976) for the following proposition:

“Where a witness’ testimony is of major importance and is strongly adverse to the party against whom he has testified, the usual discretion of a trial court has a narrow range, and it generally is required to allow proof of any important fact indicating bias of the witness.”

When Kennedy was called as a defense witness later in the trial he testified that the defendant’s wife called him on several occasions and that, after she had called him, he called her and asked her to go out with him. Any error resulting from the sustention of the State’s objection was cured and eradicated when defense counsel was later allowed to ask this same question which the trial judge had previously prevented him from asking.

“Q. Mr. Kennedy, I’ll ask you this, please sir: Is it not a matter of fact that on many occasions you sent Randall Watson out of town on personal business so that you could make phone calls and try to get with his wife?
“MR. YUNG [Assistant Attorney General]: That’s repetitious, Judge. We went over that yesterday.
“THE COURT: I overrule it.
“Q. Answer my question, please, sir.
“A. No, sir.”

Thus, it is apparent that the very questions the defendant maintains he was unduly restricted from asking during Kennedy’s cross examination were, in fact, asked and answered when Kennedy was called as a defense witness. The bias the defendant argues he was not allowed to prove was in fact proved, definitely and fully. Therefore, any restriction in Kennedy’s cross examination became harmless error at most. Alabama Rules of Appellate Procedure, Rule 45 reads:

“No judgment may be reversed or set aside, nor new trial granted in any civil or criminal case on the ground of misdirection to the jury, the giving or refusal of special charges or the improper admission or rejection of evidence, nor for error as to any matter of pleading or procedure, unless in the opinion of the court to which the appeal is taken or application is made, after an examination of the entire cause, it should appear that the error complained of has probably injuriously affected substantial rights of the parties.” (Emphasis added).

Error, if any, in ruling evidence inadmissible in a criminal proceeding is cured by a subsequent admission of the same evidence. Johnson v. State, 378 So.2d 1164 (Ala.Cr. App.), cert. denied, 378 So.2d 1173 (Ala. 1979); Simmons v. State, 353 So.2d 11 (Ala. Cr.App.), cert. denied, 353 So.2d 18 (Ala. 1977). Sustaining objections to certain questions asked during the cross examination of prosecuting witnesses is not harmful error where the defendant is subsequently permitted to ask and receive answers to questions which covered the substance of the questions ruled out. Hill v. State, 366 So.2d 296 (Ala.Cr.App.), affirmed, 366 So.2d 318 (Ala.1978). The refusal to permit a witness to testify to certain facts does not require a new trial where at another time in the course of the trial the same witness is permitted to testify to those facts. Woodward v. State, 253 Ala. 259, 44 So.2d 241 (1950); Sullivan v. State, 22 Ala.App. 140, 114 So. 73, cert. denied, 216 Ala. 564, 114 So. 74 (1927).

IV

The defendant alleges that reversible error occurred due to certain comments made by the State in closing argument. Those comments are as follows:

“MR. YUNG: . . you heard his own voice speaking on that tape so you know what he said over the telephone in that conversation. You have heard the court reporter who took his deposition in this courthouse testify to the lies he then told denying it. What happened in this case was he tried to blackmail Mickey Kennedy by threatening to give those tapes and negatives to .. . ’
“MR. MELSON [Defense Counsel]: Move for a mistrial, Your Honor.
“THE COURT: Overrule.”
* * * * * *
“MR. YUNG: ‘. . . this is no frivolous case. This man in this courthouse raised his right hand to heaven after filing a hundred thousand dollar lawsuit, swore to God Almighty to tell the whole truth and nothing but the truth and lied in his teeth. He’s a blackmailing, bald face liar under oath .. . ’
“MR. HARDEN [Defense Counsel]: Object and move for a mistrial. We move for a mistrial. That is the most improper argument I have ever heard in my life.
“THE COURT: I will sustain the objection and will overrule the motion for a mistrial. Mr. Yung, restrict yourself, please.”

The defendant maintains that the references to blackmail in the State’s argument was improper and prejudicial. We disagree.

While it is true that evidence of separate crimes is inadmissible where the only probative function of such evidence is to show bad character, or an inclination or propensity to commit the type of crime for which an accused is being tried, if the accused’s commission of another crime or misdeed is an element of guilt, or otherwise tends to prove his guilt, then proof of such other crimes is admissible. Sparks v. State, 376 So.2d 834 (Ala.Cr.App.1979); C. Gamble, McElroy’s Alabama Evidence § 69.01(1) (3rd ed. 1977).

The test of a prosecutor’s legitimate argument is that whatever is based on facts in evidence is within the scope of proper comment in argument. Kirkland v. State, 340 So.2d 1139 (Ala.Cr.App.), cert. denied, 340 So.2d 1140 (Ala.1976). Statements based on facts admissible in evidence are proper. Henley v. State, 361 So.2d 1148 (Ala.Cr.App.), cert. denied, 361 So.2d 1152 (Ala.1978). A prosecutor as well as defense counsel has a right to present his impressions from the evidence. He may argue every legitimate inference from the evidence and may examine, collate, sift, and treat the evidence in his own way. Williams v. State, 377 So.2d 634 (Ala.Cr.App. 1979); McQueen v. State, 355 So.2d 407 (Ala.Cr.App.1978). Evidence of collateral crimes, if properly admitted, may be commented on by the prosecution in closing argument. Hayes v. State, 384 So.2d 623 (Ala.Cr.App.), cert. denied, 384 So.2d 627 (Ala.1980).

Here, the State’s evidence was replete with testimony that the defendant had tried to blackmail Kennedy. Contrary to his position in brief, appellate counsel argued that “some” of this evidence was properly admitted. The July 21st conversation, which the defendant swore never occurred and which subsequently became the basis for his perjury indictment, involved blackmail. Evidence of blackmail was necessarily testified to by Kennedy as the State established its prima facie case. It was not introduced to show the defendant’s bad character or that he had an inclination or propensity to commit perjury. The defendant’s demand of seventy-five thousand dollars and a black-four wheel drive truck in exchange for not turning over certain tapes and pictures to Kennedy’s wife involved blackmail and was the essence of the July 21st conversation.

Applying the facts to the above principles of law we hold that the State did nothing more than comment on facts properly admitted into evidence and that the reference to blackmail was not improper.

Perjury is lying under oath. It is a crime involving willfullness and corruptness. The trial judge so instructed the jury. By referring to the defendant as a “bald face liar”, the prosecutor merely used the vernacular to describe the offense with which the defendant was charged. This was a hard blow but it was not foul. We find no error in the prosecutor’s remarks and in the action taken by the trial judge. Smith v. State, 344 So.2d 1239 (Ala.Cr. App.), cert. denied, 344 So.2d 1243 (Ala. 1977).

V

At the conclusion of the trial court’s oral charge the defendant excepted because the trial court had not charged that, “if you find that any witness has testified falsely, then you may disregard any or all of that testimony.” No written charge to this effect was requested. The court’s failure to charge was not error.

Where a trial court’s instruction to the jury is not as full as counsel desires, his remedy is to request written charges covering the matter omitted. Smith v. State, 262 Ala. 584, 80 So.2d 307 (1955). An objection or exception to the failure of a court to charge on a matter is not necessary where a requested written charge is refused. An exception reaches only what the court did say. Grisham v. State, 147 Ala. 1, 41 So. 997 (1906). Here, the defendant’s exception in no way pertained to any misstatement of law. Thus, there is nothing for this Court to review. The mere failure of a court to charge on any given subject in the absence of a proper request presents nothing for review. Jarrell v. State, 251 Ala. 50, 36 So.2d 336 (1948).

The defendant did present a written requested charge after the jury retired to consider its verdict. That charge, in its entirety, is:

“Whether or not Mickey Kennedy falsely swore as to whether he had a telephone conversation. . .. ”

This charge is not a statement of law nor even a complete sentence. Since the jury had retired to consider the case when this charge was presented, the request came too late. Key v. State, 8 Ala.App. 2, 62 So. 335 (1913).

VI

The defendant submits that the trial court committed reversible error by using coercive and threatening language in its supplemental comments to the jury. The record does not indicate the exact time the jury began its deliberations on the morning of June 8, 1979. Trial began that morning at 8:00 A.M. The defense called its sole witness, closing arguments were had and the trial court charged the jury. Then the jury began its deliberations. After the jury had been deliberating, they requested additional instructions at 10:35 A.M. and at 10:55 A.M. The jury was allowed to separate for lunch from 11:50 A.M. to 1:00 P.M. It was at 1:45 P.M. that the following occurred which the defendant contends is error:

“THE COURT: Ladies and gentlemen, the bailiff has reported to me that you are unable to reach a verdict in this case. Let me say this to you: We were a substantial period in the trial of this matter and I feel that this jury knows as much about the facts in this case as any twelve people that we can put in the jury box in Monroe County. I am completely unwilling at this time to discharge this jury because you say you can’t reach a verdict and I would tell you that you should retire to the jury room and sit down and again go over this evidence; I charge you that you should give due consideration to the opinions of other people on the jury, to the end, if at all possible, that a verdict be reached in this case. If a verdict is not reached by you and in the event a mistrial is declared because of the failure of the jury to agree, it means simply that another jury will have to hear the same thing. This is going to entail a lot of expense to the people of this county and this state and I feel like under the facts of this case that reasonable people should be able to agree on a verdict in this case, so therefore, ladies and gentlemen, retire to the jury room and continue your deliberations.”

We have carefully considered the case of Orr v. State, 40 Ala.App. 45, 111 So.2d 627 (1958), affirmed, 269 Ala. 176, 111 So.2d 639 (1959), cited by the defendant. After examining the charge as a whole, Whittle v. State, 205 Ala. 639, 89 So. 43 (1921), we do not believe the charge was either coercive or threatening. As in Jones v. State, 56 Ala.App. 444, 322 So.2d 735, cert. denied, 295 Ala. 408, 322 So.2d 741 (1975), the trial court in no way suggested which way the verdict should be returned and the jury had deliberated only a short time before the above request was made of them. Moreover, it is not error for a trial court to call the jury’s attention to the time and expense a new trial would entail. Ashford v. State, 183 Ala. 620, 62 So. 879 (1913); Poellnitz v. State, 48 Ala.App. 196, 263 So.2d 181 (1972). There was no urging as in Orr, supra, that “the court expects a verdict”, or that “the taxpayers of this county expect a verdict, not an exhibition of obstinancy.”

VII

In his motion for new trial the defendant alleges that the trial court erred in refusing his request number one for voir dire of the jury venire. Request number one reads:

“Is any member of this jury venire related by blood or marriage to either witness in this case?”

The extent and scope of examination of prospective jurors are matters within the sound discretion of the trial judge, and his conduct of the examination, absent abuse of discretion, will not result in reversible error. Radford v. State, 348 So.2d 880, 884 (Ala.Cr.App.1977); Johnson v. State, 335 So.2d 663 (Ala.Cr.App.), cert. denied, 335 So.2d 678 (1976).

In the instant case there were more than two witnesses who testified; to have asked the requested question verbatim would have been confusing. While the enumerated causes of challenge set out in Alabama Code Section 12-16-150 (1975) are not exclusive, but illustrative, we note that the defendant’s request number one does not fall within that section. Beasley v. State, 39 Ala.App. 182, 96 So.2d 693 (1957); Biggs v. State, 20 Ala.App. 449, 103 So. 706 (1924).

Of importance here, however, is the fact that the trial judge did ask the defendant’s request number two: “Is any juror personally acquainted with either the witnesses in this case or a member of their immediate family?” This question is broader in scope than defendant’s request number one and for this reason was sufficient to uncover any possible bias a prospective jur- or may have had for or against a particular witness. Substantial error is not presumed, but the burden is upon the appellant to show error. Aaron v. State, 273 Ala. 337, 139 So.2d 309, 314 (1961). We hold that the trial court did not abuse its discretion.

VIII

Ground 56 of the defendant’s motion for new trial alleges that members of the jury panel failed or refused to respond to voir dire questions during jury selection for his trial and that such failure to respond denied him a fair trial. The defendant filed a motion to subpoena jurors to establish these facts. Both motions were denied. The defendant contends these rulings were erroneous.

The rule is well settled that:

“the failure of a juror to make a proper response to a question regarding his qualifications to serve as a juror, regardless of the situation or circumstances, does not automatically entitle one to a new trial. The proper inquiry in such cases is whether the defendant’s rights were prejudiced by such failure to respond properly.”
Beauregard v. State, 372 So.2d 37, 41 (Ala.Cr.App.), cert. denied, 372 So.2d 44 (Ala.1979).

However, here the defendant’s motions did not comply with the rule stated in Williams v. State, 342 So.2d 1328, 1329 (Ala. 1977).

“A motion challenging the composition of a grand jury, petit jury, or qualifications of individual jurors, filed after the commencement of trial, must allege, and proof must show, that grounds for the motion were not known to the defendant before he went to trial, or that he could not have known them by exercising due diligence.”

See also Smiley v. State, 371 So.2d 469 (Ala.Cr.App.1979).

Whether the trial court would have granted the motion for a new trial and the companion motion to subpoena jurors if there had been an allegation and proof that the grounds for the motion were not known and could not have been known by the exercise of due diligence is not for our determination, but in the absence of such allegation and proof we are precluded from holding the trial court erred.

IX

In response to the defendant’s “Amended Motion for Leave to Subpoena Jurors” filed to supplement the motion for new trial, the State filed the affidavit of juror Eva C. Crowe. The trial judge overruled the defendant’s motion to subpoena this juror and the defendant alleges error.

The general rule is stated in C. Gamble, McElroy’s Alabama Evidence, § 94.06(1) (3rd ed. 1977):

“A party’s introduction of the juror’s affidavit, in support or in impeachment of the verdict, is the equivalent of a direct examination of the juror. The introduction of such an affidavit entitles the opposing party to have the juror brought to court for cross examination.”

Yet, here again, the defendant failed to comply with the rule stated in Williams, supra.

We are at a particular loss in reviewing the trial court’s order denying the defendant’s motion for new trial. The order denying the motion indicates that a hearing was held, but the particulars of that hearing were not reported although both the State and the defendant were under the impression that the proceedings were to be recorded and transcribed by the court reporter.

The defendant filed a motion to correct the record under Rule 10(f), A.R.A.P. However, the State could not agree with the defendant’s proposed stipulation. The State responded: “[I]t can neither admit and join in the appellant’s proposed stipulation nor can it propose a different stipulation concerning the December 28, 1979, hearing in this case.” It does not appear that this matter was submitted to the trial judge.

Error cannot be based on matters not shown in the record. Shelton v. State, 371 So.2d 451 (Ala.Cr.App.1979). This Court cannot consider statements contained in the appellant’s brief as to facts and events not reflected by the record on appeal. Edwards v. State, 287 Ala. 588, 253 So.2d 513 (1971); Miles v. State, 366 So.2d 346 (Ala.Cr.App.1978).

On appeal the presumption exists that the ruling denying the motion for new trial is correct. Brooks v. State, 248 Ala. 628, 29 So.2d 4 (1947). In reviewing the refusal of a motion for new trial, this Court will indulge every presumption in favor of the correctness of the trial court. Henley v. State, 361 So.2d 1148, (Ala.Cr. App.), cert. denied, Ex parte Henley, 361 So.2d 1152 (Ala.1978). Where the record on appeal is silent, it will be presumed that what ought to have been done was not only done, but was rightly done. Robertson v. State, 29 Ala.App. 399, 197 So. 73, cert. denied, 240 Ala. 51, 197 So. 75 (1940).

For the reasons we have stated, this Court cannot find error in the rulings of the trial court on these issues.

We have carefully examined each issue raised in brief and presented at oral argument. In addition, we have searched the entire record for error as required by law and found no prejudicial error. The judgment of the Circuit Court is due to be affirmed.

AFFIRMED.

ALL Judges concur.

        . “ORDER
      “The defendant in this case having filed a motion for new trial, asking that his conviction in this case be set aside and held for naught and that he be granted a new trial on the indictment, and a plenary hearing having been held on said motion, at which the defendant was present in open court in his own proper person and by counsel of his choice, upon due consideration and deliberation, it is ORDERED, ADJUDGED, AND DECREED by the Court that the said motion is due to be, and the same is hereby, DENIED.
      “Done this the 30th day of Jan., 1980.”


author: SHORES, Justice.

text:
    Ex parte Thomas Randall WATSON. (In re Thomas Randall Watson v. State of Alabama).
    80-171.
    Supreme Court of Alabama.
    Feb. 20, 1981.
    Sterling G. Culpepper, Jr. of Smith, Bowman, Thagard, Crook & Culpepper, Montgomery, Paul M. Harden of Harden & Mel-son, Monroeville, for petitioners.
    Charles A. Graddick, Atty. Gen., for respondents.
   SHORES, Justice.

The Petitioner has not employed either ARAP 10(f) or 39(k) to present the issue he asserts. Therefore, the merits of his contention are not before us, and we are, therefore, compelled to deny his petition, 398 So.2d 320.

WRIT DENIED.

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