author: COWART, Judge.

text:
    Daniel J. HODGES, Appellant, v. STATE of Florida, Appellee.
    No. 80-901.
    District Court of Appeal of Florida, Fifth District.
    Sept. 30, 1981.

      Kirk N. Kirkconnell of Muller & Kirkcon-nell, P.A., Winter Park, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and C. Michael Barnette, Asst. Atty. Gen., Day-tona Beach, for appellee.
   COWART, Judge.

This case involves the similar fact rule of evidence in a sexual battery case.

The prosecutrix testified that appellant, a stranger, dialed her telephone by mistake and after a conversation she gave him directions to her apartment. He came with a bottle of wine and she stated that after some wine and television he forced her into acts constituting a sexual battery. Appellant testified and admitted his participation, but claimed that the prosecutrix consented.

As similar fact evidence the trial court, over objection, admitted the testimony of another woman who testified that about three years earlier she and appellant were in appellant’s house kissing when appellant started making advances (described as heavy kissing and heavy petting) and when the witness demurred appellant became insistent and forceful and finally carried her bodily to his bedroom where, after some wrestling but no threats, she, from fear, consented, took her clothes off, had sexual intercourse, dressed, left his house, drove away and made no report to the police.

The State claims this evidence was properly admitted to show appellant’s “propensity to force women to submit” and to show a “modus operandi” or a “common scheme or plan.” Appellant claims the evidence was prejudicial and used only to prove bad character or propensity.

The “similar fact rule” or “Williams rule,” is now codified in section 90.-404(2)(a), Florida Statutes (1979):

Similar fact evidence of other crimes, wrongs, or acts is admissible when relevant to prove a material fact in issue, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, but it is inadmissible when the evidence is relevant solely to prove bad character or propensity.

As worded this rule appears to be a special rule authorizing the admissibility of evidence. It is not. All facts “relevant to prove a material fact in issue,” that is, all facts having “rational probative value” are admissible unless excluded by some specific rule of evidence. See §§ 90.107 and 90.402, Fla.Stat. (1979). Policy considerations, including those relating to undue influence and confusion of issues, cause some classes of evidence, otherwise admissible, to be excluded. One such exclusion is embodied in the rule that in criminal cases, to avoid uncontrollable and undue prejudice and possible unjust condemnation, evidence of the bad character of a defendant cannot be offered against him as evidence of his commission of an act. Character as used in this rule refers to a person’s nature, disposition, inclination or propensity. Such character evidence is always essentially relevant to show the probability of the accused’s doing or not doing the act charged, as demonstrated by the fact that the accused is permitted to offer his own good character as evidence of innocence.

Even when the accused puts his character in issue and the State is permitted rebuttal, another rule of exclusion prohibits the State from using particular acts of misconduct to evidence bad character, not only because such evidence confuses the issues, but also because the jury naturally and inevitably tends to give excessive weight to a vicious record of crime thus exhibited as bearing on the present charge or uses it to justify a condemnation of the accused, irrespective of his guilt of the offense charged. Further, the use of such other acts covering the entire period of the accused’s life would make it extremely difficult, if not impossible, for him to prepare to refute evidence of all the other wrongful acts and offenses that the State may present, any or all of which may be mere fabrications made by persons awaiting such an opportunity.

Evidence of particular bad acts to show the accused’s character as evidence of his commission of an act is inadmissible because of: (1) the undue prejudice from the over-strong tendency of a jury to believe an accused guilty because he is a likely person to have done such an act, (2) the undue prejudice from the tendency to condemn because the accused may have escaped unpunished from other offenses and (3) the unfair surprise and injustice in charging one with one offense and then collaterally attacking him with other wrongs for which he may be unprepared to defend. Over the last three centuries this policy of exclusion of bad character evidence has received judicial sanction more emphatic with time and experience.

Peculiarly, however, a well established rule of evidence, sometimes called the principle of multiple admissibility, declares that the inadmissibility of an evidential fact for one purpose does not prevent its admissibility for another purpose otherwise proper. This means that the fact that an accused’s acts of misconduct would be inadmissible as circumstantial evidence to show his bad character as the basis for a relief that a bad fellow with his disposition or propensity would likely commit the act of which he is accused does not prevent the admissibility of evidence of the same acts for another purpose. The conduct of an accused therefore can be, and frequently is, independently used to show his knowledge, motive, design (plan), or intent, or to prove identity. Of course, when such evidence is offered for one proper purpose there is danger of the jury improperly considering it for an improper purpose, so a cautionary or limiting jury instruction is proper. See § 90.404(2)(b)2, Fla.Stat. (1979).

The prime question as to the true significance of the testimony of the “similar fact” witness here, as always, is: what particular proposition was this testimony offered to prove?

Appellant was accused of committing certain sexual acts described as “sexual battery” in section 794.011(l)(f), Florida Statutes (1979), but which are a crime as proscribed in section 794.011(4) only if committed on or with another “without that person’s consent.” Since the acts described in the statutory definition of “sexual battery” are not illegal per se and are, therefore, conduct essentially innocent, the crux, gist or gravamen of the offense of sexual battery, and, oddly, in criminal law, the one fact which characterizes the accused’s acts as being, or not being, criminal, is not an act or intent of the accused, but the mental assent of the “victim.”

In this case there is no question or issue but that the accused participated in one or more of the acts described as “sexual battery” in section 794.011(l)(f), Florida Statutes, of which the prosecutrix complains; therefore his “identity” as the “perpetrator” is not an issue concerning which similar fact evidence might for this purpose be proper in another case. Likewise, it does not appear that the accused’s knowledge, designs, plans, motives or other mental intents or emotions are relevant in this case. Assuming the worst, that the accused was so vilely motivated that he fully intended to have sexual relations with the prosecutrix whether or not she consented, if she consented, he is not guilty of any crime which he planned or intended to commit, despite all of his evil intent and plans. The ultimate issue is the prosecutrix’s consent.

Certain it is that the similar fact evidence in question (the circumstances leading to the accused’s sexual acts with another woman three years earlier) had no relevancy to whether or not the prosecutrix consented. Helton v. State, 365 So.2d 1101 (Fla. 1st DCA), cert. denied, 373 So.2d 461 (1979), is similar to this case and there the court said:

The issue of consent is unique to an individual, and the lack of consent of one person is not proof of the lack of consent of another. Evidence of the previous crime committed by Helton does not fit within the parameter of admissibility under the rule in Williams either as evidence of consent or identity because it was not relevant to either.

365 So.2d at 1102.

Section 794.011(l)(h), Florida Statutes (1979), defines “consent” as intelligent, knowing, and voluntary consent and as not including coerced submission.

This definition of “consent” and prosecu-trix’s claim that she submitted as the result of the forceful acts of the accused leads to what was the penultimate issue in the trial and to the final and controlling legal point on appeal. The issue at trial was: did the accused direct such forceful acts toward the prosecutrix as to coerce her submission and as to deprive her of her right to make a voluntary decision? This is, of course, a question of fact for the jury to make a voluntary decision? This is, of course, a question of fact for the jury where, as here, the evidence is conflicting. However the legal point on appeal is: is similar fact evidence in the form of particular prior acts of misconduct (such as the accused’s prior acts of force directed toward the similar fact witness) admissible to prove an accused’s propensity, proclivity or predisposition (bad character) when offered against him as evidence bearing on the question of whether he used force in his relationship with the prosecutrix? The answer is “no” because of the well established rule that evidence of the bad character of an accused cannot be offered against him as evidence of an act charged, reinforced by the rule that even when the State can properly show bad character, particular acts of misconduct cannot be used as evidence. The similar fact evidence in this case was relevant only to prove bad character or propensity, but was inadmissible for that purpose for all of the policy reasons discussed above, and because case law and the statute (§ 90.-404(2)(a), Fla.Stat. (1979)) expressly so state.

Because this case must be reversed, we need not discuss all the other points appellant raises on appeal but we do note that at this time there is no question but that the State must furnish the names of known rebuttal witnesses. Hicks v. State, 400 So.2d 955 (Fla.1981); Witmer v. State, 394 So.2d 1096 (Fla. 1st DCA 1981). If the State fails to make such discovery before the State can use such rebuttal witness the trial court must comply with the requirements of Richardson v. State, 246 So.2d 771 (Fla.1971). In like spirit, if upon retrial the trial court considers retaining jurisdiction over parole as permitted by section 947.-16(3), Florida Statutes (1979), the majority opinion in Moore v. State, 392 So.2d 277 (Fla. 5th DCA 1981) should be considered.

Appellant’s conviction and sentence is reversed and the cause remanded for new trial.

REVERSED AND REMANDED.

COBB, J., concurs.

SHARP, J., concurs in result only.

      . Williams v. State, 110 So.2d 654 (Fla.), cert. denied, 361 U.S. 847, 80 S.Ct. 102, 4 L.Ed.2d 86 (1959).

      . See § 90.405, Fla.Stat. (1979); 1 Wigmore on Evidence, § 193, at 642 (3d Ed. 1940).

      . Section 90.404(2)(b)l, Florida Statutes (1979), attempts to eliminate some of the surprise if the similar facts evidence relates to another criminal offense by requiring the State to furnish the defendant with a description of the other criminal offenses intended to be introduced at least ten days before trial; ten days, however, can be quite short to prepare to defend a particular collateral attack.

      .Holt, L. C. J., is quoted as saying in Harrison’s Trial, 12 How. St. Tr. 833, 864, 874 (1692) (charge of murder; a witness was called to speak of some felonious conduct of the defendant three years before): “Hold, hold, what are you doing now? Are you going to arraign his whole life? How can he defend himself from charges of which he has no notice? And how many issues are to be raised to perplex me and the jury? Away, away! That ought not to be; that is nothing to the matter.” 1 Wigmore on Evidence § 194, at 647 (3d Ed. 1940).

      .Most cases permitting the use of similar fact evidence in criminal sexual assault cases relate to the issue of identity. The concepts of “mo-dus operandi” or “common scheme or plan” relate to identification by recognition of unusual, thus identifying, aspects of the method that a particular individual uses to accomplish a particular act. See Dean v. State, 277 So.2d 13 (Fla.1973); Williams v. State, 110 So.2d 654 (Fla.1959); Talley v. State, 160 Fla. 593, 36 So.2d 201 (1948); Sweet v. State, 313 So.2d 130 (Fla.2d DCA 1975); Fivecoat v. State, 244 So.2d 188 (Fla.2d DCA 1971); Hines v. State, 243 So.2d 434 (Fla. 2d DCA 1971); Mims v. State, 241 So.2d 715 (Fla. 1st DCA 1970); Blackburn v. State, 208 So.2d 625 (Fla.3d DCA 1968); Coney v. State, 193 So.2d 57 (Fla.3d DCA 1966). See generally Annot., 2 A.L.R. 4th 330, § 5 (1980) (“Admissibility, in Rape Case, of Evidence That Accused Raped or Attempted to Rape Person Other Than Prosecutrix”).

      . See 2 Wigmore on Evidence § 357, at 334 (Chadbourn rev. 1979). In this case there is no question but that the accused intended to have sexual relations with the prosecutrix. Of course, the accused’s sexual passion or desire for the similar fact witness three years earlier is not itself evidence of a similar emotion toward prosecutrix and as evidence of a general lustful disposition it is inadmissible. However where the accused’s acts are not admitted and are ambiguous his intent or design may be very much an issue, such as in cases involving an attempted rape or assault with intent to rape and fondling cases. See e. g., Ross v. State, 112 So.2d 69 (Fla.3d DCA 1959).

      . Section 794.01 l(4)(b) also refers to “[w]hen the offender coerces the victim to submit by threatening to use force or violence likely to cause serious personal injury on the victim, and the victim reasonably believes that the offender has the present ability to execute these threats.”

      . Knox v. State, 361 So.2d 799 (Fla. 1st DCA 1978), cert. denied, 368 So.2d 1373 (1979); Henry v. State, 356 So.2d 61 (Fla. 4th DCA 1978).


source: Caselaw Access Project

author: ANSTEAD, Judge.

license: Public Domain

text:
    Charles FORD, the City of South Bay, Florida and Appalachian Insurance Company, Appellants/Cross-Appellees, v. Albert ROBINSON and Carnell Robinson, Appellees/Cross-Appellants.
    No. 80-1610.
    District Court of Appeal of Florida, Fourth District.
    Sept. 30, 1981.

      Roy R. Watson of Adams, Coogler, Watson & Smith, P. A., West Palm Beach, for appellants/cross-appellees.
    Raymond G. Ingalsbe and David C. Wiita-la of Ingalsbe, McManus & Wiitala, P. A., North Palm Beach, for appellees/cross-appellants.
   ANSTEAD, Judge.

This is an appeal from an order granting a new trial to the appellees, Albert Robinson and Carnell Robinson, on the grounds that the jury verdict was contrary to the manifest weight of the evidence. We affirm.

The appellees brought a personal injury action against the appellants alleging that Charles Ford, while acting in the course of his employment as a police officer with the City of South Bay unlawfully assaulted and battered the appellee Albert Robinson. The appellant denied these allegations and alleged that Ford’s actions in admittedly striking Mr. Robinson with a police nightstick were made necessary by Robinson’s unlawfully resisting arrest.

At trial the appellees called numerous witnesses, including a police officer who was present with Ford when the incident in question took place. In essence this testimony established that Ford did strike Mr. Robinson and that Robinson had done noth ing to justify Ford’s actions. The only substantial evidence offered to contradict this testimony was presented by Ford himself who testified that he struck Robinson twice over the head with a nightstick after Robinson first pushed Ford away when Ford attempted to arrest him for refusing to leave the scene. The jury returned a verdict in favor of appellants.

The trial court ordered a new trial in a written order which included a detailed review of the evidence and concluded:

Taking into consideration the entire testimony in the case and the demeanor of the witnesses while testifying, the Court finds that the Jury could not have found for the Defendant unless it had been swayed by prejudice or sympathy. There was a total lack of believable evidence that the Plaintiff did anything whatsoever to deserve the beating he received. There was no evidence or inference of evidence that it was necessary for the police officer to administer such a beating in order to arrest the Plaintiff.
The Court is firmly and conscientiously convinced that a new trial is absolutley (sic) necessary in order to prevent a miscarriage of justice in this case. It is the Court’s opinion that the Jury’s Verdict here was against the manifest weight of the evidence. The Court is fully aware that it is exercising its broad discretion to the limit when it issues or orders a new trial on the grounds that the Verdict was against the manifest weight of the evidence. However, the Court believes in this case that the Jury Verdict was totally inconsistent with the logic and the reasonableness of the testimony that the Court heard at this trial.

In essence appellants contend that the issue of liability was for the jury and that since there was substantial competent evidence to support the verdict, the trial court was not authorized to set aside the verdict. In their brief appellants cite the trial court’s denial of appellees’ motion for directed verdict as illustrative of the trial court’s own finding that the issue of liability should be resolved by the jury:

There is an inherent inconsistency between the court’s order denying plaintiff’s motion for directed verdict at the conclusion of all of the evidence in the case, and the court’s order granting plaintiff’s motion for new trial subsequent to verdict.

Although this assertion has strong appeal, it fails to accurately reflect the nature of the authority of the trial court to order a new trial on the grounds that a verdict is contrary to the manifest weight of the evidence. Ford Motor Company v. Kikis, 401 So.2d 1341 (Fla.1981); Rivera v. White, 386 So.2d 1233 (Fla. 3d DCA 1980).

In Warner v. Goding, 91 Fla. 260, 107 So. 406 (Fla.1926), overruled on other grounds, Lynch v. Walker, 159 Fla. 188, 31 So.2d 268 (Fla.1947), the Florida Supreme Court discussed at length the historical origins of the power to order a new trial:

Early in the history of the common law the verdict of a jury was regarded as conclusive, and new trials were not granted. A party, injured by an unjust verdict, might seek his remedy by suit in equity, writ of attaint against the jury, or by writ of venire de novo. Owing to the failure to report decisions relating to motions, the exact time when the practice of granting new trials under the common law had its origin is uncertain; but in the first reported case, Wood v. Gunston, style 466, decided 1665, the practice of granting new trials was said to be frequent. Wood v. Gunston was a case in which a new trial was granted for partiality of the jury in awarding excessive damages for libel, wherein Glynn, C. J., made the following comment:
“It is in the discretion of the court in some cases to grant a new trial, and this must be a judicial and not an arbitrary discretion; and it is frequent in our books for the court to take notice of miscarriages of juries, and to grant new trials upon them. And it is for the people’s benefit that it should be so, for a jury may sometimes, by indirect dealings, be moved to side with one party, and not to be indifferent betwixt them; but it cannot be so intended of the court.”
Prior to the practice of granting new trials, the writ of attaint against the jury was the most common means of reversing an unwarranted verdict, and the hardships attending the writ of attaint seem to have led the courts first to modify verdicts and then to grant new trials. 14 Ency. PI. & Pr. 717 and 718.

91 Fla. 264, 265, 107 So. 407, 408.

The power of the trial judge to order a new trial derives, in other words, from the equitable concept that neither a wronged litigant nor society itself can afford to be without some means to remedy a palpable miscarriage of justice. Unfortunately, the high moral appeal of this sentiment is directly proportional to the difficulty which the courts have encountered in attempting to express it as an objective standard. Originally, the Florida trial judge was simply directed to grant a new trial whenever the “substantial rights” of a party had “been so violated as to make it reasonably clear that a fair trial was not had,” and there was “no limit to the number or character of the grounds” upon which an order for a new trial could be based. Warner v. Goding, supra, 91 Fla. 265, 107 So. 408. Through the years, however, this somewhat nebulous initial formulation has been refined by decisional law and two distinct grounds have emerged upon which a new trial might properly be ordered:

1) The trial judge becomes aware of some specific and substantial prejudicial error; or
2) The trial judge finds that the jury verdict is “contrary to the manifest weight of the evidence.”

See Collins Fruit Company v. Giglio, 184 So.2d 447 (Fla. 2d DCA 1966); Cloud v. Fallis, 110 So.2d 669 (Fla.1959).

The trial judge who must decide whether to grant a new trial on the proffered ground that some reversible error of law occurred at some point during the trial need only ask himself if there was error and if so whether the error was substantially prejudicial. In that instance, the judge is required to sit in essence as an appellate judge. If he concludes that reversible error has been committed, the judge is obliged to grant a new trial on the same basis that an appellate court would do so. The power of appellate review over the trial judge’s resolution of such alleged errors is quite broad, the appellate court being on an “equal footing” with the trial court. Collins Fruit Company v. Giglio, supra, 184 So.2d 449; see also Gatlin v. Jacobs Construction Co., 218 So.2d 188 (Fla. 4th DCA 1969), cert. denied 225 So.2d 529 (Fla.1969); Boutwell v. Bishop, 194 So.2d 3 (Fla. 1st DCA 1967).

However, the trial judge who must decide whether to grant a new trial on the proffered ground that the jury verdict was “contrary to the manifest weight of the evidence” faces a far more difficult task. The phrase itself is not easy to define. In Cloud v. Fallís, supra, the Supreme Court gave the phrase its modern meaning when it resolved two conflicting lines in its prior decisional law by announcing a preference for the “broad discretion rule” over the “substantial competent evidence rule.” Briefly stated, under the “broad discretion rule” a trial judge may grant a new trial “when the verdict is contrary to the ‘manifest weight and probative force of the evidence and (the) justice of the cause’ ” requires it. 110 So.2d 671. This rule affords the trial judge a much broader discretion than that afforded by the conflicting “substantial competent evidence rule,” under which the judge was required to uphold any jury verdict supported by “substantial competent evidence and (in) the absence of any showing the jury had been deceived about the force and credibility of the evidence or influenced by outside considerations.” Id.

Subsequent Florida decisional law has purported to fill in the contours of the “broad discretion rule” delineated in Cloud v. Fallis. “Because of his direct and superi- or vantage point,” a trial judge must be afforded considerable “discretionary power to grant or deny a motion for new trial,” Baptist Memorial Hospital, Inc. v. Bell, 384 So.2d 145, 146 (Fla.1980). But this discretion is not unbridled: “The province of the jury ought not to be invaded by a judge because he raises a judicial eyebrow at its verdict,” and a trial judge does not sit on every jury as a “seventh juror” with a veto power. Wackenhut Corporation v. Canty, 359 So.2d 430, 437 (Fla.1978). A new trial should only be granted “if the error complained of has resulted in a miscarriage of justice.” City of Hollywood v. Jarkesy, 343 So.2d 886, 888 (Fla. 4th DCA 1977). “The basic test to be applied in determining the adequacy of a verdict is whether a jury of reasonable men could have returned the verdict. Specifically, in order to validly set aside a verdict ... it must be shown that the verdict was induced by prejudice or passion, some misconception of . . . the evidence, or it must be shown that the jury did not consider all of the elements ... involved, missed a consideration of the issues submitted or failed to discharge their duty as given them by the court’s charge.” Id. These cases are only a sampling of the attempts made by the appellate courts to provide trial judges with concrete guidance in resolving this issue. Nonetheless, we have been forced to concede in the past that “it is not at all clear when a trial judge can be held in error for granting a new trial.” Weems v. Dawson, 352 So.2d 1196, 1198 (Fla. 4th DCA 1977), cert. denied 359 So.2d 1221 (Fla.1978).

It appears that the grant of authority to a trial judge to order a new trial when he concludes that a verdict is contrary to the manifest weight of the evidence, simply constitutes a judicial policy decision that some check on the jury’s authority is necessary in cases where the evidence is not so one-sided as to merit a directed verdict, but yet is sufficiently one-sided to make it appear that a finding contrary to that evidence would constitute a miscarriage of justice, although there may not be identifiable error in the record to explain the jury’s verdict. The test to be applied by a trial judge is admittedly to some degree subjective. Judges may differ in their views of “manifest weight of the evidence” in a given case. However, because the trial judge is on the spot and has some ability to measure not only the tangible evidence but also the intangible, such as the credibility of witnesses, his decision is given great deference. The only real counter-check on the abuse of a trial court’s discretion is the existence of the corollary rule that the authority be exercised only in those rare instances where it is clear that the jury has gone astray. The trial judge is not to sit as a “seventh juror.” But that rule is really nothing more than an admonition that relies for compliance heavily on the subjective good faith of the trial judge. Another check is the requirement that the trial court articulate in writing, as the trial judge did here, the specific reasons that a verdict has been found deficient. See Rule of Civil Procedure 1.530(f). Otherwise, a trial judge’s exercise of this authority is not to be disturbed “if reasonable men could differ as to the propriety of the action taken by the trial court.” This is broad discretion indeed, but there is little indication that Florida trial judges have abused this grant of authority and there is no perceptible move afoot to take this authority away.

In this ease, having reviewed the evidence and the trial court’s order granting a new trial, we are unable to conclude that the trial court erred in its conclusion that the verdict was contrary to the manifest weight of the evidence. We have also considered the issues raised in the cross-appeal as to alleged errors in the admission of evidence, and we find no error by the trial court in those rulings on the present state of the record.

Accordingly, the order of the trial court is affirmed.

HERSEY and GLICKSTEIN, JJ., concur.

      . Some suggested definitions include:
      “Manifest means clearly evident, clear, plain and undisputable.” Erlacher v. Leonard Brothers Transfers, 106 So.2d 201, 203 (Fla. 2d DCA 1958), citing Schneiderman v. Interstate Transit Lines, Inc., 331 Ill.App. 143, 72 N.E.2d 705 (1947), affirmed 401 Ill. 172, 81 N.E.2d 361 (1949).
      “ ‘Weight of the evidence’ is the ‘balance or preponderance of evidence.’ ” Tibbs v. State, 397 So.2d 1120, 1123 (Fla.1981) quoting Black’s Law Dictionary 1429 (5th Ed. 1979). “The manifest weight of the evidence is that which is ‘the clearly evident, plain and undis-putable weight of the evidence.’ ” Goodrick v. Bassick Company, 58 Ill.App.3d 447, 16 Ill.Dec. 384, 374 N.E.2d 1262, 1267 (1978), quoting in part Spankroy v. Alesky, 45 Ill.App.3d 432, 4 Ill.Dec. 126, 359 N.E.2d 1078, 1080 (1977).

      . Ford Motor Company v. Kikis, supra.

      . In Tibbs v. State, supra, footnote 1, the Florida Supreme Court held that appellate courts may not order new trials in criminal cases where the evidence is technically sufficient but its weight is tenuous or insubstantial.


author: PER CURIAM. OTT, Acting Chief Judge,

text:
    M. A. P., a child, Appellant, v. STATE of Florida, Appellee.
    No. 80-1681.
    District Court of Appeal of Florida, Second District.
    Sept. 30, 1981.

      Jerry Hill, Public Defender, Bartow, Robert F. Moeller, Asst. Public Defender, Tampa, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Charles Corees, Jr., Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Appellant, a juvenile, was charged by petition with the possession of less than twenty grams of marijuana. His motion to suppress the contraband was denied, and he pled nolo contendere to the charge, specifically reserving the right to appeal the denial of his motion to suppress. The trial court adjudicated him to be a delinquent child. We reverse.

At the hearing on the motion to suppress, the arresting patrol officer testified that at 11:30 a. m. on the date of the arrest, he had observed the appellant, who was unknown to him, beside a mailbox in front of a convenience store with a brown paper bag in his hand. The officer recalled that immediately thereafter he saw the appellant drop the bag and run into the store. The officer then circled the block after which he again observed the appellant, who was now walking his bicycle, with a brown paper bag in his hand. At this point the officer stopped the juvenile because he suspected that the bag contained narcotics. The officer specifically testified that he did not believe that the bag contained anything other than narcotics and that there was nothing about the appellant that made him fear for his life. Once he had stopped the appellant, the officer did not ask appellant for his identity nor did he ask appellant his purpose for being in the area. Rather, he asked the appellant to place the bag on the hood of the police car and remove its contents. Appellant removed some items of clothing and said that was all there was in the bag. However, the officer persisted in his request that appellant empty the bag completely. At that point appellent complied and three baggies of marijuana, which appellant was later charged with possessing, fell out. In his further testimony the officer explained that approximately three or four days prior to this event an unknown individual dropped a brown paper bag at the same corner after which he ducked behind a building. On that occasion the officer retrieved the abandoned bag and found that it contained twenty-seven baggies of marijuana.

The trial court found that the appellant did not consent to the emptying of the contents of the bag. That finding is supported by the evidence and we, of course, do not disturb it. After making that finding, the court went on to rule that the stop of appellant was proper and “because the stop was legal the subsequent search was not unreasonable nor illegal.”

The appellant disputes that ruling by first contending that the officer was not justified in stopping him and that, therefore, the evidence seized after the illegal stop was tainted and should have been suppressed. Appellant correctly notes that under our “stop and frisk” law a law enforcement officer must have a founded suspicion that a person has committed, is committing, or is about to commit a crime before he may lawfully detain such person. § 901.-151, Fla.Stat. (1979); State v. Stevens, 354 So.2d 1244 (Fla. 4th DCA 1978). “A ‘founded suspicion’ is a suspicion which has some factual foundation in the circumstances observed by the officer, when those circumstances are interpreted in the light of the officer’s knowledge.” State v. Stevens at 1247. While the appellant’s actions alone may not have provided a founded suspicion, we believe that those facts coupled with the officer’s knowledge concerning the previous offense at the same location did give rise to a founded suspicion. We believe that the initial investigatory stop was proper and we disagree with appellant’s contentions to the contrary.

Appellant’s second contention is that, assuming the stop was justified, the compelled emptying of the bag was not. Appellant argues that, for this reason, the marijuana should have been suppressed. We agree with this contention.

A frisk or pat-down incident to an investigatory stop may be conducted — but only where a law enforcement officer has a reasonable belief that the person detained is armed with a dangerous weapon and therefore offers a threat to the officer or another person. § 901.151(5), Fla.Stat. (1979); State v. Webb, 398 So.2d 820 (Fla.1981). Furthermore, any such frisk of a detainee conducted after a stop is limited in scope and is only permissible to the extent necessary to disclose and for the purpose of disclosing the presence of a weapon. § 901.-151(5), Fla.Stat. (1979). We note that the permissible scope of a frisk may extend to a container, such as a woman’s handbag, under appropriate circumstances. Dawson v. State, 40 Md.App. 640, 395 A.2d 160 (1978).

The facts in the instant case failed to provide the officer with a reasonable belief that the appellant was armed. In fact, the officer candidly admitted that he did not believe appellant possessed a weapon or in any way posed a threat to his life. Under these circumstances, the officer could not legally conduct the frisk. The officer testified that he did not believe the bag contained anything other than narcotics. Clearly, the officer’s insistence on seeing the contents of the bag was not done for the purpose of discovering a weapon.

The state appears to suggest that the compelled emptying of the paper bag was permissible as a search incident to appellant’s arrest. A warrantless search incident to an arrest is lawful if the officer has probable cause to arrest before he conducts the search. Dixon v. State, 343 So.2d 1345 (Fla.2d DCA 1977). As we noted in Dixon, the test enunciated by our supreme court to determine probable cause to arrest is whether “the facts and circumstances within the officer’s knowledge and of which he had reasonably trustworthy information are sufficient in themselves to warrant a man of reasonable caution in the belief that an offense has been committed.” Dixon at 1348. While, as noted previously, we believe the officer had a founded suspicion to justify his investigative stop of the appellant, we do not believe that the facts in this case provided the officer with probable cause to arrest.

Based on what we have said, we find the contraband was illegally seized. Accordingly, the order adjudicating appellant to be a delinquent child is reversed. The case is remanded with directions that the trial court enter an order suppressing the evidence seized from appellant and for further proceedings consistent with this opinion.

REVERSED and REMANDED with directions.

DANAHY and CAMPBELL, JJ., concur.

OTT, Acting C. J., dissents with opinion.

OTT, Acting Chief Judge,

dissenting.

I dissent, not because I think the police officer acted wisely and reasonably (which I do), but because the trial court, acting well within the bounds of its discretion, thought so. I would affirm the ruling of the trial court and add a “well done” for the officer. He does good work.

We hire intelligent police officers and train them to be observant, to look for the small tell-tale signs of illegal activity, such as furtive movements, guilt-ridden demean- or and odd behavior — clues the untrained observer would either not notice or would deem inconsequential. But when an officer’s honed instincts tell him something peculiar is going on, and he smells illegality in the very air, we forbid him from pursuing the matter unless, at that precise moment of merely “aroused suspicion,” he has probable cause to arrest the suspect.

True, we permit him to detain and interrogate the suspect, provided he has a “founded suspicion” that a criminal act has occurred, is in progress or is about to occur, but the only searching we permit is for the limited purpose of ascertaining whether the suspect is armed.

I sincerely wish that someone would explain to me what was wrong with what the officer did in this case. Under circumstances found to be sufficiently suspicious to justify stopping the boy, what in the world was objectionable about looking into the paper bag? After all, it was the suspect’s conduct with respect to that bag that aroused the officer’s interest in the first place. He had observed the same brown bag “drop” and “pick up” scenario before and found it to be the means of delivering marijuana. It isn’t as though the officer used his “founded suspicion” as a pretext for stopping the suspect and then pawed through the boy’s possessions on a fishing expedition. As a matter of fact, I would be much more apt to fault an officer, under identical circumstances, for not checking the contents of the bag. I am compelled to add, with no thought of suggesting that ends justify means, that the officer’s suspicions proved to be well warranted.

It seems to me that some of the new rules devised to protect or effectuate constitutional guaranties of freedom are unduly academic. I am by no means in the ranks of those who castigate the courts for “coddling criminals.” I am satisfied that no rule formulated by any appellate court in this land was ever intentionally designed to make it easier for criminals to evade their just deserts. The problem confronting the courts is that it is simply impossible to safeguard the liberty of law-abiding citizens and simultaneously deny protection to those accused but not yet finally convicted of crime. In truth, not until one is accused of illegal conduct do those constitutional guaranties become at all important.

But that is not to say that courts have infallible wisdom or perception. Sometimes their motives are laudable but their methods are unfortunate.

There is no such thing as absolute freedom in today’s complex society. No one has completely unfettered liberty. Every reasoning person expects to sacrifice a measure of his personal freedom, not only in order that his neighbor enjoy equal rights, but for his own benefit and protection. It is unrealistic to exclude that spirit of compromise from the rules governing our law enforcement agencies.

The key to that compromise lies in the use of the word “unreasonable.” Not every search or seizure is an invasion of privacy, only those that are unreasonable. What is reasonable is going to vary from case to case. In the instant case, I can find noting unreasonable in the actions of the police officer. More aptly, I am unable to say that the trial judge abused his discretion in ruling that he, supposedly the trier of fact, found nothing unreasonable in the officer’s conduct.

This would be a wonderful world if there were no crime, no need for police officers and no such thing as a search or seizure. But there is crime, increasingly, and we hire efficient police for our protection, it isn’t us against the police, but us against the criminals, and the police are but our soldiers in that war. Surely we know by now what happens when troops are committed to battle with their hands tied.

No one disputes that an honest person should not be required to suffer the embarrassment or even the inconvenience of an arbitrary search of his person or property. But if his behavior, though innocent, reasonably suggests illicit activity, and he is at all interested in preventing or curbing crime, he will compromise his personal freedom (or privacy) somewhat if his greater goal is to be attained. No innocent person fears or is outraged by courteous, reasonable and justified interrogation or investigation by a police officer. Every intelligent person knows that the officer is simply doing, as efficiently as possible and as thoroughly as necessary, the job we hired him to do.

It is all very well to pursue pure freedom in ivory-tower meditation, and I most heartily subscribe to the proposition that individual freedom must be as pure as practicality permits, but let’s not lose sight of the limiting factors imposed by the real world.


author: GRIMES, Judge.

text:
    Charles A. JOHNSON, Appellant, v. Amanda JOHNSON, Appellee.
    No. 80-2081.
    District Court of Appeal of Florida, Second District.
    Oct. 7, 1981.

      Robert M. Johnson, P. A., Sarasota, for appellant.
    John M. Strickland of Livingston, Patterson & Strickland, P. A., Sarasota, for appel-lee.
   GRIMES, Judge.

This is an appeal from an order directing a divorced husband to pay his former wife an additional $800 a month.

The Johnsons divorced in 1977. The final judgment incorporated a written agreement which provided that Dr. Johnson would pay Mrs. Johnson $2,000 a month as alimony and child support for ten years and one month. Mrs. Johnson was also to receive a lump sum payment of $3,000 together with certain personal property and the right to live in the jointly owned home for as long as she desired or until she remarried. The agreement contained language to the effect that it superseded all prior understandings or agreements between the parties.

In March, 1980, Mrs. Johnson filed a petition for modification in which she sought an increase in her periodic alimony, an additional award of child support, and attorney’s fees. At the hearing, she testified, over objection, that she had worked for Dr. Johnson prior to the dissolution at a salary of $800 a month. Her duties consisted of substituting for regular employees when they were sick or on vacation. She stated that in negotiating for the dissolution, Dr. Johnson orally agreed to keep her on the books of his professional association as an employee for wage and pension purposes during the term of the written agreement at the same salary. She said that even though she did no work in his office after the dissolution, the professional association paid her $800 a month for a year and a half. Dr. Johnson then arranged for her to obtain a higher paying job, but she held this job for less than a year because she was incapable of doing the work. Mrs. Johnson also testified concerning her increased expenses because of inflation and about her physical and psychological difficulties. Finally she presented evidence of Dr. Johnson’s substantial earnings.

Dr. Johnson on the other hand denied the existence of any agreement to continue Mrs. Johnson’s employment after the dissolution, and he pointed out that he had recently suffered severe physical setbacks which were likely to decrease his earning potential. The court ruled that at the time of the execution of the written settlement agreement the Johnsons also had an oral agreement under which he would pay her the additional $800 a month. The court ordered the payment of the additional sum as maintenance and support each month for the balance of the term of the initial written agreement and awarded attorney’s fees.

Dr. Johnson argues that the court should have excluded any evidence of the oral agreement under the parol evidence rule because all prior negotiations merged into the contract. He is clearly correct.

Parol evidence is not admissible to vary the terms of a written agreement. Schwartz v. Zaconick, 68 So.2d 173 (Fla.1953); First Guaranty Corp. v. Palmer Bank & Trust Co., 405 So.2d 186 (Fla.2d DCA 1981).

All conversations and parol agreements between the parties prior to or contemporaneous with the written agreement are considered to have been merged therein so that they cannot be given in evidence for the purpose of changing the contract or showing an intention or understanding different from that which is expressed in the written agreement.

3 S. Gard, Jones on Evidence § 16:1, at 75 (6th ed. 1972). Of course, the parol evidence rule does not preclude evidence of a contemporaneous oral agreement amounting to a separate transaction which does not relate to the agreement embodied within the written instrument. B. F. Goodrich Co. v. Brooks, 113 So.2d 593 (Fla. 2d DCA 1959). Whether the oral agreement comes within the field embraced by the written one depends on whether both agreements relate to the same subject matter and are so interrelated that it would be expected that the parties would naturally and normally include the oral agreement within the written one. 4 S. Williston, Treatise on the Law of Contracts § 638 (3d ed. 1961).

In the present case, the settlement agreement spelled out in detail Dr. Johnson’s obligations to his wife. Therefore, the issue of whether Dr. Johnson was obligated to keep Mrs. Johnson on the payroll was necessarily within the scope of the written agreement. Since the written agreement did not express this obligation, the parol evidence rule barred any evidence that Dr. Johnson orally agreed to such an obligation.

Mrs. Johnson cites authorities for the proposition that an oral agreement may modify a written agreement if the parties have accepted the oral agreement and acted upon it in such a manner as would work a fraud on either party in the event the court refused to enforce it. Professional Insurance Corp. v. Cahill, 90 So.2d 916 (Fla.1956); Harris v. Air Conditioning Corp., 76 So.2d 877 (Fla.1955). These cases are beside the point because they refer to the rule that a subsequent parol agreement can always modify a written agreement. 3 S. Gard, supra, § 16:10, at 101. The oral agreement in this case was made prior to or contemporaneous with the execution of the written agreement. The exception of part performance is a principle applicable to the statute of frauds rather than the parol evidence rule. Cottages, Miami Beach v. Wegman, 57 So.2d 439 (Fla.1951).

Presumably, because it was providing Mrs. Johnson relief by enforcement of the oral agreement, the court never passed on whether it should modify the final judgment because of changed circumstances. Therefore, since we are setting aside the enforcement of the oral agreement, we will remand the case to allow the court to consider whether the wife has made a case for modification based on changed circumstances. Upon remand, the court may consider the previous record and any additional evidence it wishes to receive. We express no opinion concerning the issue of modification except to point out that the husband’s contention that the agreement incorporated into the judgment was a nonmodifiable property settlement agreement has no merit. Considered in its entirety, the document has more of the characteristics of an agreement providing for alimony and support which is subject to modification upon a showing of changed circumstances. Fort v. Fort, 90 So.2d 313 (Fla.1956); Ohmes v. Ohmes, 200 So.2d 849 (Fla. 2d DCA 1967); § 61.14, Fla.Stat. (1979).

We must now address the issue of attorney’s fees. Unlike most statutes authorizing attorney’s fees, section 61.16, Florida Statutes (1979), does not require that the award be made to the prevailing party. Therefore, where the relative financial circumstances of the contestants justify it, even the losing party may be awarded a fee. Diaco v. Diaco, 363 So.2d 183 (Fla. 2d DCA 1978). See Cambest v. Cambest, 367 So.2d 686 (Fla. 3d DCA 1979). Here, Dr. Johnson could well afford to pay the fee, and there was sufficient evidence to demonstrate that it would strain Mrs. Johnson’s resources for her to do so. Thus, we will not disturb the award of attorney’s fees.

We reverse that portion of the judgment which enforces the oral agreement but affirm the award of attorney’s fees. We remand the case for further proceedings consistent with this opinion.

HOBSON, Acting C. J., and CAMPBELL, J., concur.

      . Any suggestion that the court necessarily rejected the wife’s arguments on changed circumstances is refuted by the fact that the final order, as originally drafted, contained a finding that the wife had failed to meet the burden of proving a substantial change in circumstances, but the court struck this finding before signing the order.

      . Admittedly, the agreement appears to bind the husband’s estate to the periodic payments. On the other hand, it also provides that if the wife remarries, the property shall thereafter be treated as support payments for the children, terminable in increments as they reach their majority. More significantly, the wife gave up no property as a result of the agreement, so it is difficult to construe the support provisions thereof as a property settlement. See Frye v. Frye, 385 So.2d 1383 (Fla. 2d DCA 1980).


author: BEATTY, Justice.

text:
    Ralph P. EAGERTON, Jr., as Commissioner of Revenue of the State of Alabama v. EXCHANGE OIL AND GAS CORPORATION, et al.
    79-823.
    Supreme Court of Alabama.
    July 10, 1981.
    Rehearing Denied Sept. 4, 1981.

      Charles A. Graddick, Atty. Gen., Herbert I. Burson, Jr., Counsel, Dept, of Revenue, and Asst. Atty. Gen., and John J. Breckenridge and Charles E. Crumbley, Asst. Counsels, Dept, of Revenue, and Asst. Attys. Gen., for appellant.
    Rae M. Crowe and Michael B. Hamar of Armbrecht, Jackson, DeMouy, Crowe, Holmes & Reeves, Mobile, and Euel A. Screws, Jr., of Hobbs, Copeland, Franco & Screws, Montgomery, for appellees Exchange Oil and Gas Corp., Getty Oil Co., Placid Oil Co., Union Oil Co. of California, Terra Resources, Inc. and Petroleum Corp. of Texas.
    C. B. Arendall, Jr., and Louis E. Braswell of Hand, Arendall, Bedsole, Greaves & Johnston, Mobile, for appellees Exxon Corp., Gulf Oil Corp. and The Louisiana Land and Exploration Co.
    James R. Seale of Capell, Howard, Knabe & Cobbs, Montgomery, for appellees Ander-man Operating Co., Midroc Operating Co., Pruet Production Co. and Warrior Drilling and Engineering Co., Inc.
   BEATTY, Justice.

Fourteen oil and gas producers filed similar suits challenging the constitutionality of Act No. 79-434, approved by the Alabama Legislature in its 1979 Regular Session, and seeking refunds of oil and gas severance taxes paid pursuant to the Act. The trial court held the Act to be unconstitutional. Ralph P. Eagerton, Jr., as Commissioner of Revenue, appealed. We reverse and remand.

Before the legislature enacted Act No. 79-434, the statute governing the amount of oil and gas severance tax was Code of 1975, § 40-20-2. That section in its relevant part read:

(a) There is hereby levied, to be collected hereafter, as herein provided, annual privilege taxes upon every person engaging or continuing to engage within the state of Alabama in the business of producing or severing oil or gas as defined herein from the soil or the waters, or from beneath the soil or the waters, of the state for sale, transport, storage, profit or for use. The amount of such tax shall be measured at the rate of five percent of the gross value of said oil or gas at the point of production until October 1,1973, at which time the rate of such tax shall decrease to four percent, which shall be the applicable rate thereafter.
(b) The tax is hereby levied upon the basis of the entire production in this state, including what is known as the royalty interest, on which production the amount of such tax shall be a lien, regardless of the place of sale or to whom sold, or by whom used, or the fact that the delivery may be made to points outside the state; and the tax shall accrue at the time such oil or gas is severed from the soil or the waters, or from beneath the soil or the waters, and in its natural, unrefined or unmanufactured condition.

Code of 1975, § 40-20-8, dealt with the allocation and distribution of the taxes collected.

The caption of Act No. 434 states that its purpose is: “To amend Code of Alabama 1975, Sections 40-20-2 and 40-20-8, so as to increase the rate of tax; to provide further for the distribution of the proceeds of the tax; and to provide certain exceptions from the increased rate.” Section 1(a) of Act 79-434 provides:

Code of Alabama 1975, § 40-20-2, is amended to read as follows:
“§ 40-20-2. (a) There is hereby levied, to be collected hereafter, as herein provided, annual privilege taxes upon every person engaging or continuing to engage within the State of Alabama in the business of producing or severing oil or gas as defined herein, from the soil or the waters, or from beneath the soil or the waters, of the state for sale, transport, storage, profit, or for use. The amount of such tax shall be measured at the rate of six per centum of the gross value of said oil or gas at the point of production. All wells producing less than 26 barrels of oil per day shall be taxed at the rate of four per centum (4%) of the gross value of said oil or gas at the point of production. All wells that come into production after the effective date of this Act shall be taxed at the rate of four per centum (4%) of the gross value of said oil or gas at the point of production for a period of ten years after production begins. Ten years after production begins, such tax shall be then imposed at the rate of six per centum (6%) on such wells that go into production after the effective date of this Act. Provided, however, that said additional increase shall be limited to those oil and gas wells from between 15,000 and 15,800 feet in the smackover formation. . .. ”

The primary issue in this appeal deals with the effect of the phrase which reads “said additional increase shall be limited to those oil and gas wells from between 15,000 and 15,800 feet in the smackover formation,” (hereinafter the smackover provision) in Act No. 79-434.

Code of 1975, § 40-20-2 had previously imposed a 4% severance tax on statewide oil and gas production. The commissioner contends that Act No. 79-434, the amendatory Act, was intended to increase that rate from 4% to 6% statewide. The appellees, however, urge that because of the inclusion of the sentence which reads “said additional increase shall be limited to those oil and gas wells from between 15,000 and 15,800 feet in the smackover formation,” the entire Act was intended only to impose an increase on the wells which were producing oil and gas from the smackover formation at the depth specified.

It is undisputed that the smackover formation underlies only twelve counties in Alabama and that that is an unchanging fact. It is also clear that at the time of the passage of the Act, the only production in the smackover formation from 15,000 to 15,800 feet in Alabama was in Escambia County. Thus the appellees urge that the increase from 4% to 6% was intended only to apply to those wells in the smackover formation at that depth, all of which were in Escambia County. Since the Act as so interpréted would only apply to one county, appellees contend that it is a local Act.

In Town of Loxley v. Rosinton Water, Sewer and Fire Protection Authority, Inc., Ala., 376 So.2d 705 (1979) this Court said:

In interpreting statutes the underlying consideration, always, is to ascertain and effectuate the intent of the legislature as expressed in the statutes. Employees’ Retirement System of Alabama v. Head, 369 So.2d 1227 (Ala.1979). While specific language used by the legislature is subject to explanation, such language cannot be detracted from, or added to. May v. Head, 210 Ala. 112, 96 So. 869 (1923). Furthermore, when the language of a statute is clear and unambiguous there is no room for judicial construction. Employees’ Retirement System of Alabama v. Head, supra. . . . The purpose of interpretation is not to improve a statute but rather to explain the express language used in the statute. Lewis v. Hitt, 370 So.2d 1369 (Ala.1979).

The appellant contends that the language of the smackover provision, which reads, “said additional increase shall be limited to those oil and gas wells from between 15,000 and 15,800 feet in the smackover formation” (emphasis added), should properly be construed by reading that provision in conjunction with the sentence immediately preceding it. The preceding sentence limits the increase on wells that go into production after the effective date of the Act to 4% for a period of ten years and then provides that after ten years it shall be raised to 6%. By reading the two sentences together, appellant urges that the smackover provision would refer only to the increase from 4% to 6% on new wells after a ten-year moratorium and not to the statewide severance tax increase from 4% to 6%. In other words, the appellant urges that the smackover provision requires that new wells will all be taxed at a rate of 4% for ten years, and then there shall be an increase to 6% on those new wells in the smackover formation at the depth specified. According to the appellant, the smackover provision was not intended to limit the entire Act so that wells in the smackover formation at that depth were the only ones to be taxed at a rate of 6%.

The manifested intent of the legislature, as stated in the Act itself, was to levy this tax upon “every person engaging or continuing to engage within the State of Alabama in the business of producing or severing oil or gas. . . . ” This a clear and unambiguous statement that the legislature intended for the tax increase to apply statewide. Moreover, Act No. 79-434, specifically replaces and amends Code of 1975, § 40-20-2 which imposed a 4% severance tax statewide. If this Act were interpreted as applying only to those wells in the smackover formation at the specified depth, and only in Escambia County, there would be no provision for taxing the rest of the state. Certainly that was not the intent of the legislature.

After a careful reading of the Act, we are convinced that the smackover provision should logically be read in conjunction with the preceding sentence and should only by construed as a limitation on the taxing of new wells. Although the appellees put forth various forms of extrinsic evidence, some of which was clearly inadmissible, in order to prove the intent of the legislature, the general rule is that when the intent of the legislature can be determined from the language of the statute itself, we do not need to resort to extraneous matters to determine the legislative intent. “Courts can only learn what [the] Legislature intended by what it has said, and have no right to stray into mazes of conjecture or search for an imaginary purpose, in construing [a] statute.” Alabama Industrial Bank v. State ex rel. Avinger, 286 Ala. 59, 237 So.2d 108 (1970). We are thus compelled to find that the smackover provision was not intended by the legislature to be a limitation which affected the entire Act.

The trial court held that because of the inclusion of the smackover provision Act No. 79-434 was a local Act. This decision was apparently based on the authority of Peddycoart v. City of Birmingham, Ala., 354 So.2d 808 (1978) in which this Court held that if at the time legislation was adopted it applied to any political subdivision less than the whole state, it was a local Act.

Since we interpret the smackover provision as being a limitation on the taxing of new wells, and not as a limitation on the entire Act, we find that Act No. 79 — 434 is one which in its terms and effects applies to the whole state. Not only does the Act impose an increased severance tax on the production of oil and gas statewide, but the smackover provision itself applies statewide by giving a statewide incentive to create new wells except in the smackover formation at a depth of 15,000 to 15,800 feet. Accordingly, Act No. 79 — 434 is a general law.

Based on the erroneous determination that Act No. 79-434 was a local law, the trial court held that Act No. 79 — 434 violated Section 106 of the Alabama Constitution because it was not published or posted as required by that section for local laws, that it violated Section 111 of the Alabama Constitution because Act No. 79 — 434 had been introduced as a general law and amended so as to be a local law on passage, and violated Section 105 of the Alabama Constitution because Act No. 79-434 was • a local law which dealt with a subject covered by a general law. Since we have determined that Act No. 79-434 is a general law, there can be no conflict with any of these sections and we need not discuss these arguments in depth.

Act No. 79-434, Section l(d)(e), reads as follows:

Any person who is a royalty owner shall be exempt from the payment of any increase in taxes herein levied and shall not be liable therefor, (e) The privilege tax herein levied shall be absorbed and paid by those persons engaged in the business of producing or severing oil or gas only, and the producer shall not pass on the costs of such tax payments, either directly or indirectly, to the consumer; it being the express intent of this act that the tax herein levied shall be borne exclusively by the producer or severer of oil or gas.

The trial court held that because of the above-quoted royalty owner exemption and pass-through prohibition, Act No. 79-434 lacked uniformity and established arbitrary classifications in violation of the equal protection and due process clauses of the federal and state constitutions.

The appellees urge that there was no reasonable ground for exempting royalty owners from the increase and thus that the trial court correctly found the classification to be arbitrary. They contend that because Code of 1975, § 40-20 — 1(8) includes royalty owners within the definition of the term “producers,” the tax is being imposed unequally within the class of producers. This, they urge, is especially true since the pass-through prohibition precludes producers from passing the tax on to the consumers.

In Haden v. Watson, 270 Ala. 277, 117 So.2d 694 (1960) this Court discussed the power of the legislature to establish classifications for the purpose of license and excise taxes. There it was said:

The legislature has the broadest range and powers in establishing classifications or subclassifications for the purpose of license and excise taxes. State v. Pure Oil Co., 256 Ala. 534, 55 So.2d 843. Further the legislature in classifying subjects for taxation is not required to state the grounds for classification. State v. Pure Oil Co., supra. . . .
Furthermore particular privileges, occupations, classes or subclasses of businesses may be licensed and taxed and other privileges, occupations or businesses need not be included and can be entirely exempt therefrom. Henry v. Shevinsky, 239 Ala. 293, 195 So. 222; State v. Pure Oil Co., supra.
In other words the classification of occupations and privileges for taxation is largely a matter of legislative discretion, and it will not be interfered with by the courts as being in violation of the rules of equality and uniformity unless it is palpably arbitrary and unreasonable and unless there is no conceivable state of facts which would support it. State v. Pure Oil Co., supra; Carmichael v. Southern Coal & Coke Co., 301 U.S. 495, 57 S.Ct. 868, 81 L.Ed. 1245, 109 A.L.R. 1327; Frazier v. State Tax Commission, 234 Ala. 353, 175 So. 402, 110 A.L.R. 1479.

In the instant ease the legislature sought to exclude royalty owners from the increase in the severance tax. Admittedly royalty owners are a subclass of producers under Code of 1975, § 40-20-1(8); however in Haden, supra, we noted that a distinction in the imposition of taxes can be made between subclassifications. Such a distinction will not be interfered with unless there is no conceivable set of facts to support it. Here it is conceivable that the exclusion of royalty owners from this increase in tax could encourage the development of new oil and gas wells. There being a conceivable reason to support the distinction, the legislative enactment should not be deemed arbitrary and should be upheld.

Similarly the trial court held the smack-over provision to be an arbitrary and unconstitutional classification because the increase was limited only to the production from the depth of 15,000 to 15,800 feet. Since the legislature could have intended to encourage oil and gas production in other parts of the state and in other layers of the earth, we find this to be a reasonable distinction and hold this provision was not unconstitutional for this reason either.

The trial court also held that because of the royalty owner exemption and the pass-through prohibition, Act No. 79-434 was unconstitutional in that it impaired contractual obligations. The contractual obligations in question were leases which required royalty owners to pay their share of severance taxes, and sales contracts which required the purchasers to reimburse the plaintiffs for tax increases. The United States Supreme Court faced a similar situation in Barwise v. Sheppard, 299 U.S. 33, 57 S.Ct. 70, 81 L.Ed. 23 (1936) where it was said:

Plainly no stipulation in the lease can be of any avail as against the power of the State to impose the tax, prescribe who shall be under a duty to the State to pay it, and fix the time and. mode of payment. And this is true even though it be assumed to be admissible for the lessors and the lessee to stipulate as to who, as between themselves, shall ultimately bear the tax. . . .

Thus it is clear that parties to a private contract cannot limit a state’s ability to levy taxes. This was recognized by the Alabama Supreme Court in McPhillips Mfg. Co. v. Curry, 241 Ala. 366, 2 So.2d 600 (1941) where it was said:

The existence of an executory contract between or among two or more individuals presents no obstacle to the right or power of the State to levy or impose a tax which may adversely affect the financial interest of either or any of the parties which may have been acquired under or by reason of the mutual covenants of such parties to the contract....

Thus, although one party to the contracts involved here may receive less than anticipated as a result of Act No. 79-434, such a decrease does not amount to an impairment of the contracts. The legislature must retain the authority to tax free from interference by the contracts of private persons. Act No. 79 — 434 does not unconstitutionally impair the contracts of the parties.

The trial court determined that Act No. 79-434 was an unconstitutional burden on interstate commerce and thus violated the United States Constitution. Specifically the trial court found that the pass-through prohibition violated Article I, Section 8, Clause 3 of the U. S. Constitution because Congress had preempted the field which the pass-through prohibition attempted to address. The trial court held that the Natural Gas Policy Act of 1978, codified at 15 U.S.C. §§ 3301-3432, prevented the legislature from mandating that the increased severance tax could not be be passed on by the producers.

The Natural Gas Policy Act established maximum lawful prices at the wellhead for all sales of natural gas. That Act in Section 3320 reads:

[A] price for the first sale of natural gas shall not be considered to exceed the maximum lawful price applicable to the first sale of such natural gas under this part if such first sale price exceeds the maximum lawful price to the extent necessary to recover (1) state severance taxes attributable to the production of such natural gas and borne by the seller . . .

Nowhere in that section is it stated that the oil companies are entitled to “pass-through” increases on state severance taxes. Rather, the Act merely provides that the lawful ceiling on the first sale at the wellhead may be raised if a severance tax is imposed by the states. The two Acts are aimed at entirely different purposes. In other words, although it would be perfectly permissible for the oil and gas companies to raise the price for the first sale of natural gas, subject to the limitations of the Natural Gas Policy Act, all that Act No. 79-434 requires is that the increase in severance tax mandated by that Act be borne by the producer or severer of the oil or gas. Thus the pass-through prohibition contained in Act No. 79-434 does not conflict with the Natural Gas Policy Act of 1978, and the trial court’s finding to that effect is due to be reversed.

The trial court declared that Act No. 79-434 was unconstitutional because it violated Section 45 of the Alabama Constitution of 1901 which provides that “[e]ach law shall contain but one subject which shall be clearly expressed in the title. . . . ”

The title to Act No. 79-434 reads as fob lows:

To amend Code of Alabama 1975, Sections 40-20-2 and 40-20-8, so as to increase the rate of tax; to provide further for distribution of the proceeds of the tax; and to provide certain exemptions from the increased rate.

The trial court declared that Act No. 79-434 covered more than one subject and that the title did not clearly express the subjects of the Act. Specifically the trial court found that the title did not make any reference to the following topics:

1. The purported consumer protection and/or pricing regulation in form of the prohibition against pass through contained in Section 1(e).
2. The provision requiring the “producer or severer” to absorb and pay the tax.
3. The extent of the increase of the tax.
4. The fact that the Act imposed differing tax rates on different production.
5. That producers would be required to bear the royalty owner’s share of the tax.
6. The fact that the tax is not based on ownership of the mineral interest.
7. That purchasers would be prohibited from accounting for and paying the tax in derogation of the provisions of Section 40-20-3.

The purpose of Section 45 has generally been said to be to sufficiently disclose the subject of the Act so as to apprise the legislature and the public of the matter to be legislated therein. Bozeman v. Conecuh County Board of Education, 282 Ala. 543, 213 So.2d 388 (1968).

In Boswell v. State, 290 Ala. 349, 276 So.2d 592 (1973) this Court, quoting Ballentyne v. Wickersham, 75 Ala. 533 (1883), stated the rules governing the application of Section 45. There it was said:

“[T]he title of a bill may be very general, and need not specify every clause in the statute. Sufficient if they are all referable, and cognate to the subject expressed. And when this subject is expressed in general terms, every thing which is necessary to make a complete enactment in regard to it, or which results as a complement of the thought contained in the general expression, is included in, and authorized by it.” . . .

In this case we find that the title of the Act was sufficient to meet the requirements of Section 45. The seven provisions which the trial court found not to be included in the title are provisions which are necessary to make the enactment complete or at least are provisions which result as a complement of the thought contained in the general expression of the title. Therefore we hold that Act No. 79-434 does meet the requirements of Section 45.

The trial court held that Act No. 79-434 was “so vague, uncertain, indefinite, ambiguous, and conflicting with and repugnant to other existing provisions of other statutes that it cannot be enforced on any rational basis and, therefore, must be stricken.” While we recognize that courts have the power to declare legislative enactments inoperative and void for indefiniteness or uncertainty, that power should only be exercised when the statute is so incomplete, or irreconcilably conflicting, or so vague and indefinite, that it cannot be executed, and the court is unable to determine with any reasonable degree of certainty what the legislature intended. Jansen v. State ex rel. Downing, 273 Ala. 166, 137 So.2d 47 (1962). We do not find this Act to be so defective.

Moreover, we note that in construing statutes courts must presume that statutes are constitutional and should not hold them unconstitutional unless they are convinced beyond a reasonable doubt of their unconstitutionality. Alabama Dairy Commission v. Food Giant, Inc., Ala., 357 So.2d 139 (1978).

In Brittain v. Weatherly, 281 Ala. 683, 207 So.2d 667 (1968), quoting State ex rel. Montgomery v. Merrill, 218 Ala. 149, 117 So. 473 (1928), this Court said:

“It is a well-recognized rule that it is the duty of the court to uphold a law when it is fairly susceptible of two interpretations, one of which maintains its constitutionality and the other strikes it down, though the adoption of the former be the less natural . . . . ”

For this reason we find that the statute is not void for indefiniteness or uncertainty.

Since we have determined that the provisions of Act No. 79-434 are constitutional, we do not need to address the question of whether the severability clause should have been used by the trial court to save this Act or portions thereof.

On the same day the trial court rendered the final order in this case, it granted partial summary judgment in favor of plaintiffs Warrior Drilling and Engineering Company, Inc., Pruet Production Company and Anderman Operating Company under the “26 barrel provision” of Act No. 79-434, which provides that “All wells producing less than 26 barrels of oil per day shall be taxed at the rate of four per cen-tum (4%) of the gross value of said oil or gas at the point of production.” The trial judge specifically found that the exemption in the Act refers to both oil and gas production. The trial court’s order granting the partial summary judgments stated:

Since the language of the exemption from the face of the Act is clear and unequivocal, and each of these Plaintiffs have proven that only one or two of their wells at most produce more than 26 barrels of oil per day, said Plaintiffs Warrior Drilling and Engineering Co., Inc., Pruet Production Company and Anderman Operating Company are entitled to judgment. [Emphasis added.]

While we agree that the exemption in the Act refers to all wells producing either oil or gas, the trial court’s order granting partial summary judgment is illogical. Since the trial court recognizes that one or two of the plaintiffs’ wells do produce more than 26 barrels of oil, it was improper to hold that Act No. 79-434 did not apply to those plaintiffs. For that reason the motion for partial summary judgment was improperly granted.

For the above reasons we hold that Act No. 79-434 was valid in its entirety and the order of the trial court must be and is hereby reversed and remanded.

REVERSED AND REMANDED.

All the Justices concur.


author: PER CURIAM.

text:
    Florence Cross CURTIS, et al. v. Eliza Marvin RUDDER, et al.
    80-253.
    Supreme Court of Alabama.
    July 24, 1981.
    Rehearing Denied Sept. 11, 1981.

      Charles A. McGee, Fort Payne, for appellants.
    James R. Seale of Capell, Howard, Knabe & Cobbs, Montgomery, for appellees.
   PER CURIAM.

This case is on appeal after remand from this Court’s opinion in Cross v. Rudder, 380 So.2d 766 (Ala.1980), after application for rehearing.

The Plaintiffs below brought suit November 1, 1968, in the Circuit Court of Jackson County, Alabama, seeking to set aside certain guardian’s sales of properties of plaintiffs’ two deceased uncles who had been under guardianship and to require an accounting from the guardian and the purchasers of the property for the rents and profits therefrom. Named as defendants were the guardian and her children, who, along with the guardian, then owned all of the properties of the wards, having acquired them at private guardian’s sales. All sales made by the guardian had been ordered by the circuit court. Different guardians ad litem were appointed by the circuit court to represent and protect the interests of the wards at each sale. The prices paid were determined by the guardians ad litem and were subsequently approved by the court.

Also named as defendants were the cross-plaintiffs below who were purported to be the children of one of the wards and nieces and nephews of the other ward. These defendants cross-claimed against the other defendants to set aside the sales and to obtain an accounting.

The circuit court entered an order declaring the cross-plaintiffs to be the heirs of the wards but denied all other relief.

This Court on appeal reversed the trial court’s decision pertaining to the setting aside of the deeds in question and affirmed the trial court’s decision that the cross-plaintiffs were the heirs at law of the wards. We then reversed and remanded the cause for the trial court to vest the property of the ward Charles Macklyn Cross in the appellants and to vest the property of the ward William Clark Cross in his three sets of nieces and nephews.

The pertinent facts are set out in the opinion rendered on the first appeal.

After remand, the trial court vested the property in accordance with the remand order and held a hearing on the accounting on July 14, 1980. At the hearing, the guardian having died, the guardian’s children rendered an accounting for the years 1969 through 1979. On October 8,1980, the trial judge entered a final order approving the accounting rendered and found it to be correct. The cross-plaintiffs below filed this appeal. The heirs of the other ward, William C. Cross, did not appeal.

At the hearing, the defendants rendered an accounting for the use of the property from 1969 through 1979. The trial court held that the defendants were not required to account for the period prior to the filing of the bill in equity. It held that the defendants were required to account for the period of time from January, 1969 through December, 1979: The only evidence offered by appellants in any way in opposition to the accounting rendered concerned the issue of cash rental versus share rental and whether some timber had been cut off the land.

We affirm.

We agree with the trial court that under the facts of this case, the defendants should be required to account to the plaintiffs only from the date of the filing of the bill which ultimately resulted in the rescission of the deeds under which the defendants held the property. Petty v. Hall, 257 Ala. 145, 57 So.2d 620 (1952).

These appellants argue that the trial court should be reversed because it held that the purchasers of the lands under the deeds set aside by this Court were entitled to a credit in the accounting for the purchase price. Again, we agree with the trial court. While we condemned the action of the guardian on the first appeal in this case, we are mindful that she sought and received court approval for each sale. While her conduct was not exemplary, it should not permit the wards (or their heirs) to retain the purchase money and, at the same time, regain title to the property. In this case, it is not contended that the purchasers were bona fide purchasers without notice when they bought the property from the guardian. In Bank of Wetumpka v. Walkley, 169 Ala. 648, 53 So. 830 (1910), this Court held:

It is true the books make a distinction between a void and a voidable sale in the application of the doctrine of innocent purchaser for value, and hold that a bona fide purchaser for value under a voidable sale is protected. Shook v. Sou. B. & L. Ass’n, 140 Ala. 575, 37 South. 409. This doctrine is not to be questioned, but whether the sale is void or voidable matters not, if the purchaser is not a bona fide one without notice. The bill avers the sale of the land under a decree of the probate court, and which discloses the nature of the guardian’s title, and the bank in purchasing from him had constructive notice of the infirmities of his title — notice that the sale was procured by him as guardian, that he purchased the land at said sale, and that the ward had a right to avoid the same. Randolph v. Birmingham Co., 104 Ala. 355, 16 South. 126, 53 Am.St.Rep. 64.
While the law permits a minor to avoid such voidable sales upon a seasonable application, he is required to do equity as a condition precedent to relief. He cannot receive the benefits of a sale and also repudiate same, if he repudiates the sale, he must offer to restore whatever benefits he may have derived from said sale. Powell v. Powell, 80 Ala. 11; Marx v. Clisby, 130 Ala. 502, 30 South. 517; American Mtg. Co. v. Dykes, 111 Ala. 178, 18 South. 292, 56 Am.St.Rep. 38.

169 Ala. at 652, 53 So. 830.

This is consistent with the rule as expressed in Bogert, Trusts & Trustees § 543(V) at ¿88-90 (1978):

Where there has been self-dealing by the trustee the beneficiary may have an election as to remedies. For example, if the trustee had wrongfully purchased trust property at his own sale the beneficiary may disaffirm the transaction and elect to treat the disloyal sale as a breach of trust. In such case a decree restoring the property to the trust, if the trustee has retained title to the property, would be based either on the theory of setting aside the sale transaction or of declaring the trustee a constructive trustee of the trust property. The trustee normally will be required to account for any income or profits received by him from the trust property. ... A condition precedent to the granting of this relief will be the restoration to the trustee of such portion of the price as he had paid into the trust and the release of him from any obligation to pay any balance of the price due.

We find no fault with the trial court’s approving the computations made in the accounting. As noted on the first appeal, the land involved in this litigation was operated by the guardian, now dead, as a single farm. In making the accounting, Mr. James M. Rudder, a son of the guardian, apportioned the total income and expenses to the productible acres on the lands of each individual. Likewise, since the farming on the land was done on a share basis, the acreage in a particular crop on the lands of all individuals was divided by the applicable crop-percentage. This method of computation was employed throughout since there were no separate records kept on each parcel. Based upon this method of computation, it was determined that during the period of the accounting, 51.9 percent of the total income was derived from the lands of E. M. Rudder [and TVA land leased by the guardian], 30.1 percent from the lands of C. M. Cross, and 18.0 percent from W. C. Cross’s lands. These lands were then charged with the exact same percentage of the total expenses incurred. Based on these percentages, the total net income derived from the lands the subject of this suit is $15,388.17 on the lands of C. M. Cross and $9,207.04 on the lands of W. C. Cross. The court allowed a set-off of the purchase price paid for the lands and awarded the difference to the heirs of W. C. and C. M. Cross.

This method may not have resulted in the kind of precision the law would prefer, but under the circumstances of this case, we cannot say that it was inequitable or unfair.

The trial court held that the defendants were required to account only for rents and profits actually received and found no lack of diligence on their part while the lands were in their control. Again, we are not persuaded that the trial court committed reversible error. There* was evidence that the farming operation was carried out like most farming operations in Jackson County, and there can hardly be a charge that the defendants acted any less diligently than they would have had it been their own land, since they were claiming it as their own at all pertinent times. Suffice it to say, on this issue and the issue of whether Mr. Rudder was entitled to a management fee, the evidence was conflicting. The trial judge resolved it in favor of the defendants. We cannot say he was palpably wrong.

The judgment appealed from is affirmed.

AFFIRMED.

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


author: ALMON, Justice. TORBERT, Chief Justice

text:
    Jeraline Cain GLANTON v. Robert Earl HUFF.
    79-750.
    Supreme Court of Alabama.
    Aug. 7, 1981.
    Rehearing Denied Sept. 4, 1981.

      J. Earl Smith of Smith & Smith, Dothan, for appellant.
    Kenneth T. Fuller of Cassady, Fuller & Marsh, Enterprise, for appellee.
   ALMON, Justice.

Jeraline Glanton, plaintiff below in a personal injury action, appeals from a jury verdict in favor of the defendant, Robert Huff. We reverse.

On September 14, 1978, at approximately 4:00 p.m., Mrs. Glanton was driving her automobile on the rain-slickened Ross Clark Circle in Dothan, Alabama. As she neared an intersection, she approached and stopped behind two cars which were stopped at a red light. While waiting for the light to change, Mrs. Glanton’s 1975 Cadillac was struck from behind by an automobile driven by Robert Huff. At the time, Huff and his friend, Joe Sasser, were returning from a fishing trip at Lake Eufaula and were towing Huff’s boat on a trailer. Although the impact was not great enough to cause extensive property damage to either automobile, it was sufficient to knock to her lap the wig Mrs. Glanton was wearing.

Several hours after the collision, Mrs. Glanton went to the hospital, complaining of neck and back pains. The attending physician at the hospital fitted Mrs. Glan-ton with a neck brace and prescribed medication for the pain. Six days later Mrs. Glanton was examined by Dr. McLeod. He arranged for her to be admitted to the hospital. While confined to the hospital, Mrs. Glanton was placed in traction, underwent physical therapy and was given medication to relax the muscles in her neck and back. Mrs. Glanton was released from the hospital ten days later, although she continued to receive physical therapy for an additional two months.

Mrs. Glanton sued Huff for the personal injuries she sustained in the accident. At trial, Dr. McLeod testified that she had suffered an “acute cervical strain” or “whiplash” which resulted in a partial permanent injury to her neck and back. Additional evidence was submitted as to the extent of treatment and amount of medical expenses incurred as a result of those treatments. Jeraline’s husband, Herbert Glan-ton, testified that a part of the molding on the rear bumper of the Glanton automobile was displaced as a result of the collision and that the shock absorbers, upon which the rear bumper is mounted, were cracked.

On direct examination, Robert Huff testified in part as follows:

Q. Robert, tell the jury, in your own words, what happened out there on the Circle that day.
A. Well, it was raining. We had been fishing and coming home. We were slowing down at the red light- and there were several cars in front of us, and as I got closer to her and started applying the brakes within ten or fifteen — whatever—the car started skidding and I applied the brakes harder and it slid into her and bumped her.
$ Sfc 4c Sfc Jjc ifc
Q. How far were you from that intersection, or from those cars in front of you when you first started applying your brakes — when you first put on brakes?
A. Probably a quarter of a mile — started slowing down.
Q. Did the brakes of the car slide, or slip in any way when you started applying the brakes?
A. No, they did not.
Q. How far from Mrs. Glanton’s car were you when your car started to slide?
A. Ten to fifteen feet.
Q. How fast were you travelling at that time?
A. Roughly ten miles an hour.
Q. Do you have a judgment or opinion as to how far your car actually slid?
A. Probably seven or eight of the ten feet.

On cross examination Huff admitted that he knew that a greater stopping distance is required when towing a boat and that the stopping distance is increased when towing a boat on slippery roads. Contrary to Mrs. Glanton’s contention that the automobiles collided with some considerable force, Huff described the impact as a “mild bump.”

Charles Brannon, the Dothan Police Officer who investigated the accident, testified that he could detect no physical damage to either automobile. He also stated that he discovered dirt on the underside of both vehicles but that none of that dirt or other debris had fallen to the pavement below as a result of the collision.

Upon the conclusion of the trial, the jury returned a verdict in favor of the defendant. Mrs. Glanton appeals from the denial of her motion for new trial arguing here, as she did below, that the jury verdict was against the great weight of the evidence. We agree.

This Court has held that

A motorist approaching an intersection is * * * required to have his vehicle under control so that he does not drive into the rear of a vehicle whose driver is obeying traffic signals by waiting for the red light to change.

Gribble v. Cox, 349 So.2d 1141, 1144 (Ala.1977) (quoting 7A Am.Jur.2d, Automobiles and Highway Traffic, § 850). This statement of the law merely establishes the duty imposed upon Huff. It is clear from his own testimony that Huff breached this duty when he collided with Mrs. Glanton’s automobile. It is also clear from the medical testimony presented at trial that Mrs. Glanton suffered injury in the accident. Although the jury was free to determined the extent of Mrs. Glanton’s injuries, they were not free to ignore the fact that she was injured. Even viewing the evidence in a light most favorable to Huff, it is beyond dispute that Huff had a duty to operate his vehicle so that he would not collide with Mrs. Glanton’s automobile, that he breached that duty when he rear-ended Mrs. Glan-ton’s automobile, and that she suffered some injury as a result of that collision. Given such circumstances, we are compelled to conclude that the jury verdict for the defendant was contrary to the great weight of the evidence.

The denial of Mrs. Glanton’s motion for new trial is therefore due to be reversed and the cause remanded for new trial.

REVERSED AND REMANDED.

FAULKNER, JONES, SHORES, EM-BRY, BEATTY, and ADAMS, JJ., concur.

TORBERT, C. J., and MADDOX, J., dissent.

TORBERT, Chief Justice

(dissenting).

Plaintiff Glanton argues that the jury improperly found for the defendant; however, I do not agree. This Court may not reverse a jury verdict simply because the verdict does not conform to our view of the evidence. Locklear v. Nash, 275 Ala. 95, 152 So.2d 421 (1963). A jury verdict is presumed correct, and the presumption of correctness is strengthened where, as here, the trial court denied a motion for new trial. Trans-South-Rent-A-Car, Inc. v. Wein, 378 So.2d 725 (Ala.1979); Guthrie v. McCauley, 376 So.2d 1373 (Ala.1979). A jury verdict will not be set aside unless the verdict is against the preponderance of 'the evidence and is manifestly wrong and unjust. Dixie Elec. Co. v. Maggio, 294 Ala. 411, 318 So.2d 274 (1975). I cannot say the record reflects that the preponderance of the evidence is against the verdict, or that the verdict is wrong or unjust.

Plaintiff contends that the verdict is contrary to the dictate of Gribble v. Cox, 349 So.2d 1141 (Ala.1977). In Gribble we said:

It has long been assumed by bench and bar in Alabama that one who drives his auto into the rear of another who is stopped in obedience to a traffic light is prima facie guilty of negligence. An extensive search for precedent to support .this assumption fails to reveal authority precisely in point. The rule in this regard is well stated in 8 Am. Jur. 2d [Automobiles and Highway Traffic] at § 769 [1963], p. 329.
“A motorist approaching an intersection is also required to have his vehicle under control so that he does not drive into the rear of a vehicle whose driver is obeying traffic signals by waiting for the red light to change.”

We hold this to be the rule in Alabama. Id. at 1144.

However, the rule that a driver is required to keep his vehicle under control is merely another formulation of the rule which charges the driver with the duty to use reasonable care in the operation of his vehicle. That an accident occurs does not automatically mean that the actor has failed to exercise due care. Cf., National Biscuit Co. v. Wilson, 256 Ala. 241, 54 So.2d 492 (1951) (the mere skidding of an automobile on an icy street does not necessarily prove negligence on the part of the driver of the automobile). To construe Gribble as holding that a defendant is always negligent when he strikes the rear of a plaintiff’s automobile that is lawfully stopped would require a summary judgment or directed verdict for plaintiff on the issue of liability where, as here, defendant admits the incident. Such a result usurps the jury’s role as factfinder on the question of defendant’s due care, or, for that matter, on the issue of plaintiff’s damage.

Whether a party has exercised reasonable care is generally a question of fact. Tennessee Coal, Iron & R.R. Co. v. Spicer, 206 Ala. 141, 89 So. 293 (1921). Here, the jury was instructed on the proof necessary to sustain a cause in negligence and negligence per se, and the jury was apprised of pertinent rules of the road. Additionally, the jury was given the Gribble charge as follows:

[I]t is a rule of law in Alabama:

“That a motorist approaching an intersection is also required to have his vehicle under control so that he does not drive into the rear of a vehicle whose driver is obeying traffic signals by waiting for the red light to change; therefore, one who drives his automobile into the rear of another vehicle who is stopped in obedience to a traffic light is prima facie guilty” — and prima facie is just a legal term, but it means presumed to be guilty of negligence.

Plaintiff failed to object to any of the charges, and I would hold that she cannot now question the jury’s resolution of questions of fact by asserting defendant was prima facie negligent.

MADDOX, J., concurs.