text:
    COLLATERAL INVESTMENT COMPANY, a corporation v. Harold H. PILGRIM, Jr., d/b/a The Light House.
    Civ. 3092.
    Court of Civil Appeals of Alabama.
    June 2, 1982.
    Rehearing Denied July 7, 1982.
    Certiorari Denied, Nov. 19, 1982 Alabama Supreme Court 81-907.
    Jesse P. Evans, III, of Smyer, White, Taylor, Evans & Sanders, Birmingham, and Michael E. Sparkman of Doss & Sparkman, Hartselle, for appellant.
    Steven E. Haddock of Aldridge & Haddock, Decatur, for appellee.
    Robert H. Harris of Caddell, Shanks, Harris, Moores & Murphree, Decatur, for amicus curiae Bldg. Material Merchants’ Ass’n.
   BRADLEY, Judge.

This case involves the priority of liens on real property.

Cameron, Inc. purchased two tracts of land for the construction of residential housing. The first tract of land was used for the construction of town homes. On October 31, 1979 Cameron executed a construction money mortgage to Central Bank of Alabama upon the entire tract in the amount of $514,000.00. On January 9, 1980 Cameron executed a construction money mortgage on the second tract of land to Central Bank in the amount of $29,000. Both of these mortgages were duly recorded.

Cameron entered into an oral contract with Harold Pilgrim, Jr., d/b/a The Light House (Pilgrim) whereby Pilgrim agreed to supply light fixtures, door chimes, and other items for the construction. Payment was to be made on the tenth of the month following purchase. The present dispute arises out of Cameron’s failure to pay for the items supplied.

We are concerned with Cameron’s failure to pay for the fixtures supplied to what is referred to as Lot 11 of the town homes and Lot 5 which is the second tract of land. Prior to completion of construction, Lot 11 was purchased by Anita Burleson and Lot 5 was purchased by Shirley Hatfield.

These individual purchasers were allowed to pick out the fixtures they wanted at Pilgrim’s place of business. An electrician would then pick up the selected items and take them to the jobsite for installation.

Collateral Investment Company agreed to loan both Burleson and Hatfield the money for their purchase of the property in return for a purchase money mortgage. Collateral instructed the closing attorneys in both transactions that it wanted to acquire an interest subject to no prior lien. As a result the attorneys examined a title abstract and probate court records and found no liens on the property. The abstracts did reflect the construction money mortgage to Central.

The closing attorney representing Collateral as to Lot 11 inquired of Central as to the amount necessary to satisfy the mortgage on Lot 11. Central responded in writing that $41,590.16 was due on this mortgage. It should be noted that Lot 11 was one of twelve town homes built on tract 1, and as we pointed out, the original loan from Central was $514,000.00 for the construction of all twelve of the town homes. Therefore Central apportioned the loan amount among the individual town homes.

On March 27, 1980 the loan between Collateral and Burleson was closed. Collateral advanced $55,600 to the closing attorney, which was the total loan amount. At closing Cameron signed an affidavit that all bills to materialmen, laborers, etc. had been paid. The closing attorney then delivered $41,590.16 to Central to satisfy the outstanding mortgage to Central. The loan was then closed, and Burleson executed a mortgage to Collateral.

The same series of events occurred in the closing of Lot 5. The closing attorney delivered $30,273.57 to Central in satisfaction of the mortgage. The total loan amount was $37,800.00. This loan was closed on May 2, 1980.

Pilgrim was never paid for the fixtures he supplied to these two lots. As a result Pilgrim filed a verified statement of lien in the Probate Court of Morgan County on August 27, 1980. On September 10, 1980 Pilgrim filed suit in the circuit court to enforce his liens on both lots. Cameron subsequently filed for bankruptcy.

After a hearing the trial court, sitting without a jury, determined that Pilgrim’s materialman’s lien took priority over Collateral’s mortgage in both instances. From this judgment Collateral has appealed to this court.

The only issue presented in this appeal is whether the trial court properly found that Pilgrim’s lien took priority over Collateral’s lien on these two lots. We find no error and affirm the judgment.

Section 35-11-211, Code 1975, provides:

Such lien as to the land and buildings or improvements thereon, shall have priority over all other liens, mortgages or incumbrances created subsequent to the commencement of work on the building or improvement; and as to liens, mortgages or incumbrances created prior to the commencement of the work, the lien for such work shall have priority only against the building or improvement, the product of such work which is an entirety, separable from the land, building or improvement subject of the prior lien, mortgage or incumbrance, and which can be removed therefrom without impairing the value or security of any prior lien, mortgage or incumbrance; and the person entitled to such lien may have it enforced by a sale of such buildings or improvement under the provisions of this division and the purchaser may, within a reasonable time thereafter, remove the same.

In Empire Home Loans, Inc. v. W.C. Bradley Co., 286 Ala. 449, 241 So.2d 317 (1970), it was held that liens of materialmen and mechanics created subsequent to a mortgage attach to the building only. It was further held that there is no right to remove and sell a new building when such a sale would impair the security of the existing mortgage which is prior to any materi-alman’s lien thereafter arising.

It is clear that in the present case Central’s construction money mortgage was executed prior to Pilgrim’s supplying any materials to the jobsite. As a result it is undisputed that Central’s mortgage would take first priority over Pilgrim’s lien.

Collateral satisfied the Central mortgage. Collateral argues that by satisfying this mortgage it should now be allowed to claim first priority. This is known as the doctrine of equitable subrogation. Pilgrim, on the other hand, argues that Collateral’s mortgage is subordinate to his materialman’s lien because it was subsequent in time, and further that Collateral cannot be equitably subrogated to the rights of Central.

The elements of equitable subrogation are as follows: (1) the money is advanced at the instance of the debtor in order to extinguish a prior incumbrance; (2) the money is used for that purpose with the just expectation on the part of the lender for obtaining security of equal dignity with the prior incumbrance; (3) the whole debt must be paid before subrogation can be enforced; (4) the lender must be ignorant of the intervening lien; and (5) the intervening lienor must not be burdened or embarrassed. Federal Land Bank v. Henderson, Black, & Merrill Co., 253 Ala. 54, 42 So.2d 829 (1949); Whitson v. Metropolitan Life Insurance Co., 225 Ala. 262, 142 So. 564 (1932).

We cannot find in the present case that the money was advanced at the instance of the debtor to satisfy the prior incumbrance. The debtor to Central was Cameron. Collateral’s debtors were Burle-son and Hatfield. Burleson and Hatfield were not debtors of Central. Therefore Burleson and Hatfield had no obligation to Central. Although it is clear that Collateral paid this debt to Central in order to satisfy the encumbrance, this was not done at the instance of Cameron. See generally Jefferson Standard Life Insurance Co. v. Brunson, 226 Ala. 16, 145 So. 156 (1932).

In Bolman v. Lohman, 74 Ala. 507 (1883) it was stated:

To entitle the complainants to be sub-rogated to the lien of the mortgage executed to Mrs. Frank by Bolman and wife, it manifestly required more than the mere appropriation of the borrowed money to the payment of the mortgage. The lender of money which is applied by the borrower in payment of a mortgage, or other lien on land, is not generally subro-gated to the lien which is thus extinguished, merely upon the strength of the fact that his funds have discharged the incumbrance.... Subrogation is said to be the creature of equity, and not of contract, and is based on principles of justice and fair dealing. “It is nothing more than the putting by transfer one person in the place of another, and investing the former, in promotion of fair dealing, with the equitable rights of the latter.” — McWilliams v. Jenkins, 72 Ala. 480, 487. There is clearly no scope for the operation of the principle in a case of ordinary borrowing, where there is no fraud or misrepresentation, and the borrower creates in favor of the lender a new and valid security, although the funds are used in order to discharge a prior incumbrance. But the rule is settled that, where money is expressly advanced in order to extinguish a prior in-cumbrance, and is used for this purpose, with the just expectation on the part of the lender of obtaining a valid security; or where its payment is secured by a mortgage, which for any reason is adjudged to be defective, the lender or mortgagee may be subrogated to the rights of the prior incumbrancer, whose claim he has satisfied, there being no intervening equity to prevent.

Collateral argues that it advanced money for the express purpose of satisfying this prior encumbrance. However, we cannot agree. Collateral loaned this money to the individuals based on these individuals’ credit. The money was not loaned for the express purpose of satisfying this prior encumbrance. Collateral ordered the closing attorney to pay this prior encumbrance solely for its own benefit and not that of its debtors.

The cases indicate that equitable subrogation applies where the debtor borrows money for the express purpose of paying off the precedent debt. Collateral relies heavily on the case of First Avenue Coal & Lumber Co. v. King, 193 Ala. 438, 69 So. 549 (1915). Although the facts of this case are closely analogous, the debtor, Bell, testified that he borrowed the money for the express purpose of paying off the first mortgage. In the present case there is no indication that the individual debtors borrowed the money to pay off the mortgage to Central. In fact the evidence indicates that the debt to Central was paid at the instance of Collateral. Further the major purpose of the loan transaction between Collateral and the individual debtors was for these debtors to purchase their property. Under the circumstances we find that Collateral has failed to meet the first element necessary to establish a first priority under the doctrine of equitable subrogation.

We further find that Collateral has failed to meet the fourth element of equitable subrogation. Under this element Collateral must show that it is ignorant of the intervening lien. We find the recent case of Starek v. TKW, Inc., 410 So.2d 35 (Ala.1982) to be dispositive of this issue.

In that case a couple purchased a new home from the construction company for $50,000. A purchase money mortgage was given in the amount of $45,000. At the time of closing, the builder signed an affidavit stating that he had paid all material-men. Later one of the materialmen filed a lien and brought suit against the purchasers to enforce the lien.

The major issue was whether a purchaser of a new building must have actual notice of a lien before the lien can be enforced against the purchaser. The court held that one who purchases a new building is put on constructive notice that a lien is statutorily permissible for six months.

In reaching this conclusion, the court relied on the following quote from Grimsley v. First Avenue Coal & Lumber Co., 217 Ala. 159, 115 So. 90 (1927):

And the fact that the work was in progress is notice to all who dealt with said property or contracted therefor with its owner that the right under the statute exists, and sales or conveyances made within the time prescribed by the statute would be subject to the right. [Emphasis added.]

It is clear to this court that if a purchaser of a new home is considered to be on constructive notice that a lien can be filed, then certainly the mortgage company would also be on constructive notice. In view of the rule laid down in Starek, supra, Collateral could not have been ignorant of Pilgrim’s lien. Hence, another element of equitable subrogation failed to materialize in support of Collateral’s claim.

Having found that Collateral cannot be equitably subrogated to Central’s mortgage, the trial court was correct in concluding that Pilgrim’s lien took priority over Collateral’s mortgage. As a result the judgment is affirmed.

AFFIRMED.

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


source: Caselaw Access Project

author: WRIGHT, Presiding Judge.

license: Public Domain

text:
    Charles Lesley WOOTEN v. ALABAMA STATE TENURE COMMISSION.
    Civ. 3088.
    Court of Civil Appeals of Alabama.
    Aug. 4, 1982.
    Rehearing Denied Sept. 15, 1982.
    Certiorari Denied, Nov. 19, 1982 Alabama Supreme Court 81-1079.

      Larry H. Keener of Floyd, Keener & Cu-simano, Gadsden, for appellant.
    William M. Beck, Sr., Fort Payne, for appellee.
    Donald H. Patterson of Patterson & Weathers, Florence, for amicus curiae Florence City Bd. of Educ.
   WRIGHT, Presiding Judge.

This is a teacher tenure case which presents a question of first impression.

Charles Lesley Wooten was notified by his employer, the DeKalb County Board of Education that his position as special education supervisor had been abolished and that he would be transferred to a classroom instructor position for the 1981-1982 school year. Wooten appealed his transfer to the Alabama State Tenure Commission. The Tenure Commission denied his appeal, stating that it lacked jurisdiction since Wooten had not attained continuing service status as a supervisor. Wooten petitioned for writ of mandamus in the DeKalb County Circuit Court on the authority of § 16-24-2(b), Code 1975, which states:

“An instructor who has attained continuing service status and who is promoted to principal or supervisor shall serve for three consecutive school years as a principal or supervisor before attaining continuing service status as a principal or supervisor.”

The parties stipulated in circuit court that Wooten was tenured as a classroom instructor, and was then promoted to supervisor where he served for three full years. The circuit court proceedings involved solely a question of law as to the meaning of § 16-24-2, Code 1975. The court denied the writ because Wooten was not reemployed for a fourth year in his supervisory position and thus, it said, did not gain tenure as a supervisor. The court utilized the reemployment for the succeeding [fourth] year requirement which is set out in § 16-24-2(a), Code 1975. From the denial of the writ, Wooten appeals.

We are of the opinion that § 16-24-2(a) is not involved here. That section sets out the process through which non-tenured “teachers” — defined in § 16-24-1 of the Code to include instructors, principals and supervisors — shall gain continuing service status. It states that:

“Any teacher in the public schools who shall meet the following requirements shall attain continuing service status: Such teacher shall have served under contract as a teacher in the same county or city school system for three consecutive school years and shall thereafter be reemployed in such county or city school system the succeeding school year.”

Section 16-24r-2(b) is different. It provides the manner in which a tenured instructor who has been promoted to supervisor or principal shall gain tenure in the higher position. The promoted tenured instructor “shall serve for three consecutive school years as a principal or supervisor before attaining continuing service status as a principal or supervisor." § 16-24r-2(b), Code 1975. The requirement of reemployment for the succeeding school year is absent. Section 16-24-2(b) works to give a promotion advantage to those who have already served long enough in the system to have gained tenure as an instructor.

Thus, Wooten, a tenured teacher (instructor), gained tenure as a supervisor under § 16-24r-2(b) after employment in that capacity for three consecutive years. The denial of the petition for writ of mandamus must be reversed, and the Tenure Commission ordered to accept jurisdiction to determine the merits of Wooten’s transfer.

We note that in neither Alabama State Tenure Commission v. Green, 409 So.2d 850 (Ala.Civ.App.1981), nor Haas v. Madison County Board of Education, 380 So.2d 873 (Ala.Civ.App.), cert. denied, 380 So.2d 877 (Ala.1980) was construction of § 16-24-2(b) in issue.

REVERSED AND REMANDED.

BRADLEY and HOLMES, JJ., concur.

      . We do not have a record of proceedings before either the county board of education or the Tenure Commission. If the Tenure Commission was aware of Wooten’s tenure status as an instructor, this case could have been disposed of by our recent opinion in Smith v. Alabama State Tenure Commission, [Ms. June 23, 1982] opinion extended on rehearing, [Ms. July 28, 1982] (Ala.Civ.App.1982). Due to the lack of record and the stipulation in circuit court, we decide this case as presented by the parties on § 16-24-2(b).


author: HOLMES, Judge.

text:
    Margie Maynor SELF v. Algie Dean MAYNOR.
    Civ. 3233.
    Court of Civil Appeals of Alabama.
    Sept. 8, 1982.
    Rehearing Denied Oct. 6, 1982.
    Certiorari Denied, Nov. 19, 1982 Alabama Supreme Court 82-26.

      Judith S. Crittenden of Clark, James & Crittenden, Birmingham, for appellant.
    James F. Berry, Cullman, for appellee.
   HOLMES, Judge.

The circuit court refused to set aside a prior decree of divorce. The wife appeals and we affirm.

The dispositive issue is whether the trial court erred in refusing to set aside the prior decree of divorce.

We do not deem it necessary nor prudent to detail the facts of the instant appeal. The following is pertinently revealed by the record.

The parties divorced in 1979. An agreement regarding a division of property and alimony was incorporated into the divorce decree. The agreement was later modified by agreement of the parties. This modification occurred more than six months after the original decree. The wife thereafter sought additional modifications but was unsuccessful.

In October of 1981, the wife filed a rule 60(b), Alabama Rules of Civil Procedure, motion seeking relief from the divorce decree. The basis of her motion was that the agreement regarding the division of property and alimony was arrived at as a result of fraud and/or undue influence.

The trial court held an ore tenus hearing and found the wife’s motion was not timely and, further, that the evidence did not support the wife’s claim of fraud and/or undue influence.

As indicated, the wife through able counsel, appeals the trial court’s ruling.

The appeal presents for review only the correctness of the judgment denying the wife’s 60(b) motion and in no manner reviews the correctness of the 1979 divorce decree. See Coosa Marble Co. v. Whetstone, 294 Ala. 408, 318 So.2d 271 (1975); Gallups v. United States Steel Corp., 353 So.2d 1169 (Ala.Civ.App.1978). We also note that in considering the action of the trial court upon a 60(b) motion, we look only to determine if there has been an abuse of discretion. Gallups v. United States Steel Corp., supra; McSween v. McSween, 366 So.2d 293 (Ala.Civ.App.1979); Modernage Homes v. Wooldridge, 55 Ala.App. 68, 313 So.2d 190 (1975).

Rule 60(b)(1), (2), and (3) can afford no relief to the wife. A petition seeking relief under these provisions must be filed not more than four months after the judgment was entered or taken. McSween v. McSween, supra. In this instance, the petition was filed over two years after the judgment was entered.

Rule 60(b)(4) and (5) are not applicable in the instant appeal, nor is it contended by the wife that they are.

The wife in brief contends that relief could and should be granted pursuant to rule 60(b)(6). We do not agree.

Rule 60(b)(6) is mutually exclusive from other rule 60(b) motions. See Charles Townsend Ford, Inc. v. Edwards, 374 So.2d 900 (Ala.Civ.App.1979). In the instant case the relief sought falls clearly within the purview of either 60(b)(1) or (2) or (3). Hence, rule 60(b)(6) would not be available to the wife.

In- addition, relief is available under rule 60(b)(6) only under the most extraordinary and compelling circumstances. Charles Townsend Ford, Inc. v. Edwards, supra; Pace v. Jordan, 348 So.2d 1061 (Ala.Civ.App.), cert. denied, 348 So.2d 1065 (Ala.1977). The facts of the instant case do not indicate such extraordinary and compelling circumstances. We note that the original judgment was altered by modification on one occasion and that relief from the judgment was sought by the wife on other occasions.

In any event, the trial court has wide discretion in its determination of whether to grant relief pursuant to rule 60(b)(6) and it will not be reversed on appeal absent abuse of discretion. See Pierson v. Pierson, 347 So.2d 985 (Ala.1977); Blackmon v. W.S. Badcock Corp., Inc., 342 So.2d 367 (Ala.Civ.App.1977). After a review of the record, we cannot say that the trial court abused its discretion in refusing to grant relief.

We additionally note that if the petition of the wife is to be considered as an independent action, such petition could also have been treated by the trial court as untimely. We should not be understood as finding the wife’s petition to be an independent action. In fact, it appears that all parties and the trial court treated the petition as a rule 60(b) motion. In any event, the petition if so construed must in general be brought within a reasonable time not to exceed three years after entry of the judgment. See rule 60(b), A.R.Civ.P. Here, the petition being filed over two years from entry of judgment could, under the instant facts, be found to have been untimely. Put another way, the trial court would have been within its discretion in so finding.

Lastly, we comment that the evidence was conflicting regarding the alleged undue influence or fraud. Suffice it to say there is evidence to support the trial court’s conclusion of no such undue influence or fraud that required the judgment to be set aside.

The case is due to be affirmed.

AFFIRMED.

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


author: WRIGHT, Presiding Judge. HOLMES, Judge

text:
    ALABAMA FARM BUREAU MUTUAL CASUALTY INSURANCE COMPANY, et al. v. Martha Faye CAIN, et al.
    Civ. 3391.
    Court of Civil Appeals of Alabama.
    Sept. 22, 1982.
    Rehearing Denied Nov. 3, 1982.

      L. Merrill Shirley, Elba, for appellants.
    Francis H. Hare, Jr., Birmingham, and Jackson W. Stokes, Elba, for appellees.
   WRIGHT, Presiding Judge.

This is an uninsured motorist insurance case.

Martha Faye Cain was severely injured in an automobile accident on January 24,1974. At the time of the accident, Ms. Cain had in full force and effect a policy of automobile insurance with Alabama Farm Bureau Mutual Casualty Insurance Company (Farm Bureau). Ms. Cain’s father, acting on her behalf, reported the accident to Farm Bureau and received payments pursuant to the collision and medical coverage provisions of the policy. On July 7, 1978, Ms. Cain filed suit against Farm Bureau, claiming damages under the uninsured motorist provisions of the policy. An additional count sought punitive damages against Farm Bureau and its agents for fraudulently and deceitfully failing to inform Ms. Cain that she had a legitimate uninsured motorist claim arising out of the January 24, 1974, accident. On March 25, 1981, the court granted summary judgment in favor of Farm Bureau and the individually named agents on the fraud count. The case was tried to a jury on the count for breach of contract. Farm Bureau’s motions for directed verdict at the close of Ms. Cain’s case and at the close of all the evidence were denied. The jury returned a verdict for Ms. Cain in the amount of $10,000.00, plus interest of $4,619.17. From the denial of its motion for judgment notwithstanding the verdict or alternatively for new trial, Farm Bureau appeals to this court.

The record reveals the following:

Ms. Cain testified that in the early evening of January 24,1974, she and a companion were driving along the Brantley highway when she saw two cars approaching from the opposite direction. It was misting rain at the time. The first approaching car had its lights on dim. The second car failed to dim its headlights. When Ms. Cain’s vehicle drew almost even with the two cars, their lights blinded her. She lost control of her car and ran off the road. She was severely injured. She suffered a broken neck and after extensive medical care remains a paraplegic.

The passenger in Ms. Cain’s car gave a similar account of the accident.

Ms. Cain’s father testified that he reported the accident to agents of Farm Bureau some four days after it occurred. He did not inform the agents that there were involved hit and run vehicles. He had never, on behalf of his daughter, filed a statement under oath setting forth a belief that Ms. Cain was injured by an unidentified motorist.

Dr. Jackson Bostwick treated Ms. Cain the day after the accident when she was transferred to Montgomery. In eliciting a history from Ms. Cain he obtained no information regarding the involvement of other ears. Ms. Cain told Dr. Bostwick that her car skidded and she lost control of it.

James Spurlin was the investigating officer in Elba at the scene of the accident. He testified that when he interviewed Ms. Cain she told him she had run off the road. She gave no information regarding contributing circumstances involving other vehicles.

Farm Bureau introduced into evidence the insurance policy. The policy contains the following pertinent provisions pursuant to uninsured motorist coverage:

“Definitions — Insuring Agreement III
“(d) Hit-and-Run Automobile.
“The term ‘hit-and-run automobile’ means an automobile which causes bodily injury to an insured .. . provided: (1) there cannot be ascertained the identity of either the operator or the owner of such ‘hit-and-run automobile’; (2) the Insured or someone on his behalf shall have reported the accident within 24 hours to a police, peace or judicial officer or to the Commissioner of Public Safety, and shall have filed with the Company within 30 days thereafter a statement under oath that the Insured or his legal representative has a cause or causes of action arising out of such accident for damages against a person or persons whose identity is unaseertainable, and setting forth the facts in support thereof; and (3) at the Company’s request, the Insured or his legal representative makes available for inspection the automobile which the Insured was occupying at the time of the accident.
“Conditions — Insuring Agreement III
“24. Action Against Company
“No action shall lie against the Company unless, as a condition precedent thereto, the Insured or his legal representative has fully complied with all the terms of this coverage.”

The dispositive issue on appeal is whether, in the absence of proof that Ms. Cain complied with these provisions of the policy, the trial court erred in denying Farm Bureau’s motions for directed verdict and JNOY. We hold that it did and reverse.

The clear and unambiguous language defining “hit-and-run” provides that compliance with the definitional requirements is a condition precedent to coverage for “hit-and-run” accidents. In the absence of statutory provisions to the contrary, insurance companies have the same right as individuals to limit their liability or impose conditions upon coverage so long as such conditions are not inconsistent with public policy. Alabama Farm Bureau Mutual Casualty Insurance Company v. Goodman, 279 Ala. 538, 188 So.2d 268 (1966). Conditions precedent to an action on a policy requiring notice of an accident have been continually held valid and enforceable by the courts of this state. Almeida v. State Farm Mutual Insurance Company, 53 Ala.App. 175, 298 So.2d 260 (1974). In Alabama Farm Bureau Insurance Company v. Cook, 388 So.2d 1001 (Ala.Civ.App.1980) we held that failure of an insured to comply with the “Notice of Legal Action” provisions of a policy released the insurance company from liability on the uninsured motorist provisions. In Alabama Farm Bureau Mutual Casualty Insurance Co. v. Teague, 269 Ala. 53, 110 So.2d 290 (1959), our supreme court held that if the policy of the insurance provides that notice of a loss must be in writing, the requirement is binding upon the insured, and notice must be in writing in the absence of waiver or estoppel.

We can find no precedent in this state on the enforceability of the precise conditions in the “hit-and-run” provisions of the policy before us. There is, however, considerable authority as to necessity of compliance with identical conditions in other states. A. Widiss, A Guide to Uninsured Motorist Coverage, §§ 4.7, 4.8 (Supp.1980). We are unable, however, to distinguish any difference in the application of the “hit- and-run” conditions and those conditions previously held enforceable by the courts of this state. The notice given the agent by the father, though sufficient to comply with the condition precedent to coverage under the collision and medical payments provisions of the policy, does not satisfy the requirement of the “hit-and-run” section.

The policy required as a condition to coverage that Ms. Cain or her legal representative report the accident to the police or other official within twenty-four hours. The record shows that Ms. Cain did talk to the investigating officer. There is no evidence, however, that she or anyone else informed the officer of any contributing circumstances including the possible involvement of other vehicles.

The policy also required that Ms. Cain or her legal representative file within thirty days a statement under oath that she had a cause of action against an unidentified person and setting forth the facts in support thereof. Again, there is no evidence of compliance with this provision. Furthermore, the record is void of proof that Ms. Cain or anyone on her behalf informed Farm Bureau by any method, or at any time prior to the instigation of suit some four and one-half years later, that Ms. Cain’s accident may have resulted from the negligence of an unknown driver. Ms. Cain put forward no proof to support a theory of waiver or estoppel on the part of Farm Bureau as to the conditions precedent in the policy. See Freeman v. Alabama Farm Bureau Mutual Casualty Insurance Company, 395 So.2d 1014 (Ala.Civ.App.1980), cert. denied, 395 So.2d 1017 (Ala.1981).

Proof of compliance with the conditions precedent to coverage under the uninsured motorist provisions was necessary to recovery on the policy. In the record before us, proof of non-compliance is uncontroverted. There being no evidence to support a necessary element of Ms. Cain’s claim, the trial court erred in submitting the case to the jury. This case is due to be reversed and remanded for the trial court to enter judgment in favor of Farm Bureau.

REVERSED AND REMANDED.

BRADLEY, J., concurs.

HOLMES, J., concurs in the result and specially.

HOLMES, Judge

(concurring in the result and specially).

I concur with the result reached by this court. But I concur specially in order to point out that the principles of waiver and estoppel may well, in the proper factual situation, constitute an exception to the general rule that strict compliance with the notice requirement is a condition precedent to recovery.

In an uninsured motorist case, this court recently wrote:

“Generally, a provision of an insurance policy requiring the filing of a written claim or notice may be waived by any act or pattern of conduct by the insurer or its authorized agents which reasonably tends to create a belief in the mind of the claimant under the policy that notice or proofs of loss will be unnecessary....”

Freeman v. Alabama Farm Bureau Mutual Casualty Insurance Company, Inc., 395 So.2d 1014, 1017 (Ala.Civ.App.1980), cert. denied, 395 So.2d 1017 (Ala.1981).

In similar cases, other courts have also found strict compliance was waived by the insurer when the insurer had information indicating a hit and run accident was involved. A. Widiss, A Guide to Uninsured Motorist Coverage, § 4.8 (Supp.1980). For example, an Illinois Court held the insurance company waived its right to insist on strict compliance when it failed to notify the claimant of the technical requirement of the notice provision after the insurer received a comprehensive report of the accident. McMahon v. Coronet Insurance Company, 6 Ill.App.3d 704, 286 N.E.2d 631 (1972). A Tennessee court reached a similar result when the insurance company received notice of a hit and run accident but failed to object at that time to the report’s failure to technically comply with the notice provision. Hamil v. Nationwide Mutual Insurance Company, 499 S.W.2d 892 (Tenn. App.1972).

It appears notice may well be a two-way street — that once the insurer receives notice of an uninsured motorist claim he may have a responsibility to notify the claimant of the technical requirements of notice. Cf. Freeman v. Alabama Farm Bureau Mutual Casualty Insurance Company, supra. See also Western Assurance Company of Toronto v. McGlathery, 115 Ala. 213, 22 So. 104 (1897) (Holding insurer’s defense that the claimant failed to comply by taking a required examination was waived when claimant had no notice he was required to take examination.).

In the instant ease, after a careful reading of the record, I find no evidence that the insurance company had any information indicating the accident involved a hit and run situation until apparently when the lawsuit was filed, i.e., over four years after the accident. Claimant did not-inform the insurer of the existence of other vehicles, nor did the official police report give any hint of any involvement by other vehicles. Therefore, in the instant case there was no notice in any form given the insurance company which might have triggered the principles of waiver and estoppel. Therefore, I concur in the result.


text:
    Melissa Ann MURPHY, a minor child, by her Guardian ad Litem v. Mary MURPHY, as Administratrix de Bonis Non of the Estate of Herman Murphy, deceased, and Terrie Victoria Murphy.
    Civ. 3100.
    Court of Civil Appeals of Alabama.
    Oct. 27, 1982.
    William E. Cassady, Camden, for appellant.
    No brief for appellee.
   EDWARD N. SCRUGGS, Retired Circuit Judge.

This appeal arose from proceedings brought by an administratrix to ascertain who were the lawful heirs and widow of Herman Murphy, deceased, so as to enable the administratrix to properly distribute the estate of $5,000, received from a wrongful death action for her intestate’s death.

For appeal purposes the parties reached an agreed statement of the facts pursuant to A.R.A.P. Rule 10(e). It was approved by the trial court. The portions of the agreed facts which are pertinent to this decision are as follows:

“1. Herman Murphy, deceased, departed this life intestate on or about April 9, 1979, leaving an estate of Five Thousand and.00/100 Dollars ($5,000.00) cash....
“5. That Mary Murphy filed a petition with the Probate Court to be appointed as Administratrix de Bonis Non and was issued Letters of Administration on November 21, 1980.
“6. The following claims were made against the estate:
“a. Marguarite Strickland claimed a widow’s portion of the estate of Herman Murphy.
“b. Terrie Victoria Murphy, a child of Marguarite Strickland, claimed to be the child of Herman Murphy and thus deserving of a child’s portion of his estate.
“c. Lynda Murphy claimed a widow’s portion of the estate of Herman Murphy.
“d. Melissa Ann Murphy, child of Patricia Murphy, claimed to be the child of Herman Murphy, deceased, and thus a child’s portion of his estate....
“9. A hearing in this cause was held ... wherein the following facts were established by documentary evidence as well as testimony:
“a. Lynda Murphy was found to be the lawful widow of Herman Murphy, deceased, and entitled to a widow’s share of the estate.
“b. Marguarite Strickland was found not to be the widow of Herman Murphy, deceased, or to ever have been the wife of said decedent.
“c. Melissa Ann Murphy was found to be a legitimate minor daughter of Herman Murphy, deceased, and entitled to a child’s share.
“d. It was established that Terrie Victoria Murphy was the illegitimate daughter of Herman Murphy and Mar-guarite Strickland.
“e. It was established that Herman Murphy had publicly recognized Terrie Victoria Murphy as his child during his lifetime, but had never married her mother, nor had he filed a written declaration with the probate judge as provided by Code of Alabama 1975, § 26-11-2, nor had there ever been a judicial determination of paternity prior to his death.
“f. An objection was made by the Guardian ad Litem of Melissa Ann Murphy, to the Court allowing an illegitimate child to take in this matter when she had not been legitimated pri- or to the death of her father by any of the three methods available in Alabama. He based his motion on Ever-age v. Gibson, et a1. 372 So.2d 829.
“g. The Guardian’s objection was overruled by the court in that the child had been recognized.
“h. The estate of Herman Murphy, deceased, consists of Five Thousand and .00/100 Dollars ($5,000.00) in cash.
“i. All parties were properly before the court and jurisdiction was properly invoked.
“10. An order was signed by the Judge dated June 16,1981, giving to Lynda Murphy a widow’s interest, Melissa Ann Murphy, a child’s share, and Terrie Victoria Murphy, a child’s share.”

The guardian ad litem for Melissa Ann Murphy, the legitimate child, has appealed and contends that such evidence was inadequate to allow the illegitimate child, Terrie Victoria Murphy (Terrie) to inherit from Herman Murphy. We agree and reverse.

In the recent leading case of Everage v. Gibson, 372 So.2d 829 (Ala.1979), cert. denied, 445 U.S. 931, 100 S.Ct. 1322, 63 L.Ed.2d 765 (1980), a judgment was affirmed which determined that an illegitimate child had no interest in her purported father’s estate and was not entitled to any of the proceeds therefrom. It was therein stated as follows:

“We have concluded that there are three situations in Alabama in which a child born out of wedlock may inherit from his intestate father, short of having been adopted by the father. In the first, the child is ‘legitimated’ by the marriage of the parents and recognition of the child by the father as his own. Code 1975, § 26-11-1. Recognition must be unambiguous and clear in its character. Howard v. Pike, 290 Ala. 213, 275 So.2d 645 (1973).
“In the second, the child is ‘legitimated’ by the father’s written declaration, attested by two witnesses, which is filed in the office of the probate judge. Code 1975, § 26-11-2.
“4. The third situation is a ‘judicial determination of paternity.’ Code 1975, §§ 26-12-1 et seq....
“In the instant cause, the record discloses no proof of either of the first two alternatives, although both were viable subsisting legal methods of obtaining ‘legitimation’ during the intestate’s lifetime. There was no proof of a judicial determination of paternity obtained during the intestate’s lifetime. The only proof offered was an attempt to show ‘recognition’ by the intestate.”

Here, there was neither a written, attested and filed declaration of legitimation nor a judicial determination of paternity. From the agreed statement of facts, it is clear that the learned trial court determined that Terri was entitled to take a child’s part on account of the recognition of the child by the alleged father as his own. However, under the first ground set forth in the Everage case, it was essential that there be proof that her parents married as well as proof of her recognition by Herman Murphy as being his daughter. Here, one element, the requisite marriage, did not occur. This case is in the identical posture as was the Everage case where “The only proof offered was an attempt to show ‘recognition’ by the intestate.” Everage v. Gibson, supra. Such proof alone was then declared to be insufficient to allow any inheritance from an intestate father by an illegitimate child. Accordingly, Terrie Victoria Murphy is not a lawful heir of Herman Murphy, has no interest in the estate of Herman Murphy, deceased, and cannot participate in any distributions of any of the assets of said estate.

We are required to reverse the judgment of the circuit court and to remand this case for the rendition of a judgment which complies herewith.

The guardian ad litem for Melissa Ann Murphy shall be paid the sum of $250 for his legal services for representing such infant on this appeal, the same to be paid out of the assets of the estate of Herman Murphy, deceased, after first deducting the widow’s net share therefrom.

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

REVERSED AND REMANDED.

All the Judges concur.


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    Milton JONES, Jr. v. Dr. Walker B. LeFLORE and Janet LeFlore, jointly and individually.
    Civ. 3155.
    Court of Civil Appeals of Alabama.
    Oct. 27, 1982.

      James E. Atchison and Michael M. Davis of Hess, Atchison & Horne, Mobile, for appellant.
    Thomas M. Galloway and William M. Sis-son of Collins, Galloway & Smith, Mobile, for appellees.
   WRIGHT, Presiding Judge.

This is an appeal from a judgment for defendants/appellees in an action for work and labor done instigated by plaintiff/appellant.

In November 1974 plaintiff/appellant, Milton Jones, Jr., entered into an agreement with defendants/appellees, Dr. Walker B. LeFlore and Janet LeFlore wherein Jones was to perform architectural services for the LeFlores. In September 1975 the LeFlores terminated Jones due to a dispute over the valúe and amount of the services performed.

On August 31, 1977, Jones filed his complaint, and an ore tenus hearing was held by Judge James D. Sullivan on October 28, 1981. At the hearing it was established that there was an agreement between the parties; however, evidence as to what services were actually performed, and the value of those services was heavily disputed. Jones, himself, testified that the value of his services ranged between zero and $12,-000.

On October 29, 1981, the court entered judgment in favor of the LeFlores. Jones timely filed a motion for new trial and in the alternative, a motion to alter, amend, or vacate judgment on the basis that it was contrary to the law and evidence. This motion was denied. Plaintiff appeals.

The plaintiff contends there was uncon-tradicted evidence that he performed valuable services for defendants at their request which they accepted and received benefits from. Defendants contend that there was evidence presented from which the trial court could and did find that any work and labor performed by plaintiff was so insufficient, poorly and improperly performed as to be of no value to defendants.

In an action for work and labor, the measure of recovery is the reasonable value of such work and labor performed. Campbell v. Tennessee Valley Authority, 421 F.2d 293 (5th Cir.1969). If such work and labor has no reasonable value for the purpose for which it was requested, there may be no recovery. Our examination of the testimony discloses a conflict as to quantity, quality and value of such work. It is the duty of the court hearing the testimony ore tenus to resolve the conflict and render a judgment accordingly. Having reached and entered such judgment, it is supported by a presumption of correctness upon appeal. Such presumption may be overcome only by a showing' of absence of support in the evidence or that it is unjust. The presumption of correctness is strengthened by denial of a motion for new trial. Gann & Lewis Roofing Co. v. Sokol, 359 So.2d 815 (Ala.Civ.App.1978); Baswell v. Wilks, 57 Ala.App. 98, 326 So.2d 292 (1976).

Plaintiff contends that the issue of proper performance may be raised only by an affirmative defense. Without deciding the correctness of that contention in actions for work and labor, we respond that the contention will not lie in this case. There not having been any objection made by plaintiff to testimony as to his lack of and improper performance, Rule 15(b), A.R. Civ.P. applies. The issue therefore was before the court by implied consent without the necessity of pleading. Hawk v. Bavarian Motor Works, 342 So.2d 355 (Ala.1977).

The argument that an admission by one of the defendants during testimony that she was willing at one time to have paid plaintiff as much as $250 for what he had done should require the court to return a judgment at least in that amount is not compelling. Such testimony, though for the consideration of the court, was not controlling when viewed with all the other evidence.

Finding no ground for reversal, the judgment is affirmed.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


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    William Carl ALLEN v. METRO CONTRACT SERVICES, INC., et al.
    Civ. 3209.
    Court of Civil Appeals of Alabama.
    Oct. 27, 1982.

      David H. Meginniss of Hornsby, Blankenship & Robinson, Huntsville, for appellant.
    Thomas R. Robinson of Lanier, Shaver & Herring, Huntsville, for appellees.
   HOLMES, Judge.

This is a workmen’s compensation case.

The trial court awarded the employee benefits based upon a 20% permanent partial disability and corresponding permanent decrease in his earning capacity as a result of his work-related injury. The employee appeals, and we reverse and remand for proper consideration.

The employee contends that the trial court erred as a matter of law in improperly considering certain factors in determining the award.

The dispositive issue on appeal is whether the trial judge erred as a' matter of law in improperly considering such vocational factors as age, education and general physical condition in diminishing the percentage of disability.

The record in pertinent part reveals the following:

The employee is a sixty-four year old man. At the time of the accident, he was employed by Metro Contract Services as an electrical technician. As part of his job, the employee often replaced batteries which required dumping the three gallons of sulfuric acid in the battery down a drain. The employee was exposed to sulfuric acid fumes when he dumped the batteries. The employee’s injuries occurred as a result of a particularly heavy period of work in which he was draining twenty to thirty batteries at a time over a three day period.

The employee testified he experienced burning in his nose, throat and chest, shortness of breath, wheezing, coughing and exhaustion. Doctors testified tests show employee’s lungs were operating below normal. Two doctors testified the employee suffered a 40% disability to his body as a result of lung damage from exposure to sulfuric acid fumes, and a third doctor testified he suffered a 40% to 50% disability.

The employee has a history of various medical problems which includes treatment for recurring bronchitis, urinary tract infection, kidney stones and emotional problems including depression.

The employee had held essentially the same job he had at the time of the accident for the last fifteen years. Before that he operated a pet store for a year, worked as an accountant for fourteen years, and was a cook in the United States Navy. He had a high school diploma and a diploma from North Alabama College of Business. There was testimony from an employee of the Alabama Vocational Rehabilitation Services to the effect that the employee was no longer employable.

The employee was promoted to leadman about a year after his accident, but he testified that due to his injury he had difficulty performing any of the strenuous lifting or labor involved in the job. At the time of the trial, he was on medical leave.

As indicated, the trial court found the employee was 20% disabled. The learned trial judge in pertinent part found the following:

“This Court finds that if the plaintiff [employee] were required to seek new employment, that his earning capacity would be diminished by the injury received as a result of this occurrence, but that his inability to find new employment would not be totally attributable to this injury. This Court must consider the fact that his age, his experience, education and his general physical condition would be a contributing factor in the event that he was unable to find future employment. This Court therefore finds and concludes that the plaintiff has suffered a 20% permanent decrease in his earning capacity or ability to earn as the result of the injury in question, ...”

At the onset, we note the standard of review in a workmen’s compensation case is very narrow. The Workmen’s Compensation Act, Ala.Code § 25-5-81(d) (1975), provides for review by certiorari. On appeal, review of a workmen’s compensation case is limited to questions of law and to examination of the evidence to determine if there is any legal evidence to support the findings of the trial court. E.g., Agan v. Union Foundry Co., 404 So.2d 71 (Ala.Civ.App.1981). The reviewing court may however examine the trial court’s application of the law to the facts, Pate v. Miller Transporters, Inc., 381 So.2d 64 (Ala.Civ.App.), affirmed, 381 So.2d 68 (Ala.1979), and the legal conclusions drawn by the trial court, Newman Brothers, Inc. v. McDowell, 354 So.2d 1138 (Ala.Civ.App.), cert. denied, 354 So.2d 1142 (Ala.1977).

In this case, employee contends the learned trial judge misapplied the law in that the trial judge attempted to use vocationally limiting factors to diminish the workmen’s compensation award. Put another way, the employee contends that these factors should not be considered to reduce an award but may only be considered to establish the decrease in earning ability which is an intrinsic part of recovery.

To this court, it is clear from a reading of the trial judge’s decree that age, education, general physical condition and education were considered by the trial court. It is also clear that the factors were considered as factors which diminished the award, and that these factors were not caused by the injury.

The law is clear that pre-existing conditions and disease(s) do not affect an award of compensation if the job-related injury combined with the pre-existing condition produced the death or disability. Newman Brothers, Inc. v. McDowell, supra. The employee suffering physical ailment or injury due to conditions of his employment does not bear the risk of his own particular physical structure. B.F. Goodrich Co. v. Martin, 47 Ala.App. 244, 253 So.2d 37 (1971).

It is a fundamental principle that the employer takes the employee subject to his physical condition when he enters his employment. Ingalls Shipbuilding Corporation v. Cahela, 251 Ala. 163, 36 So.2d 513 (1948). “It is a well accepted rule that an employer must take the employee as he finds him with any existing infirmities.” Meyer v. Electro Static Finishing, Inc., 303 Minn. 508, 230 N.W.2d 24, 27 (1975). Therefore, the trial judge’s consideration of employee’s “general physical condition” as a factor reducing his compensation was impermissible as it, in effect, treated the employee’s general health as a pre-existing condition to reduce the award.

Furthermore, the trial judge’s consideration of the employee’s age as a “contributing factor” in reducing the employee’s compensation is suspect. “The principle that degeneration and infirmities due to age which have not previously produced disability are not a proper basis for reduction of compensation is amply supported by authorities from other jurisdictions.” A. Larson, Workmen’s Compensation Law, § 59.22 at 10-384, and cases cited therein. The clear import of that principle — that age is not a proper basis for reduction of compensation — is applicable in the instant case even though the “degeneration and infirmities due to age” were not per se a consideration.

Furthermore, while not directly on point, the inherent logic of Black Diamond Coal Mining Co. v. Wilson, 274 Ala. 220, 147 So.2d 810 (1962), is relevant in this case. In Black Diamond, the employer argued since the employee was “too old to find employment, he is not disabled and his capacity to earn has not been affected” by his occupational disease. Black Diamond Coal Mining Co. v. Wilson, supra, 147 So.2d at 811. The court rejected this argument, holding: “An employee’s right to compensation for loss of earning capacity resulting from ... bodily injury, would scarcely be challenged on the ground that he had reached retirement age.” Again, the clear import of Black Diamond is that age is an improper factor on which to base a reduction or denial of compensation. Therefore, the trial judge’s conclusion that employee’s age was a “contributing factor” to employee’s decreased earning capacity, and the resulting reduction in the employee’s award was error as a matter of law.

The employer contends that factors such as education, age, experience and general physical condition are proper factors for the trial court to consider. This court in City of Enterprise v. Herring, 372 So.2d 358, 359 (Ala.Civ.App.1979), held:

“[T]estimony as to physical disability of the body is not the sole determinative factor in reaching the required factual conclusions as to the percentage loss of earning capacity. There are other factors such as education, age, experience, etc., which affect employability and thus earning capacity, which are to be considered by the court.”

But consideration for what purpose is an important distinction.

In City of Enterprise v. Herring, as in all other cases examined by this court where age, education, experience, etc., were factors, these factors were used to support a finding of total disability where the physical disability was less than total, or to support a finding of a higher percentage of disability than medical testimony alone suggested. See, for example, City of Muscle Shoals v. Davis, 406 So.2d 919 (Ala.Civ.App.), cert. denied, 406 So.2d 923 (Ala.1981), holding factors such as medical history, and lack of education and training having a profound effect upon earning ability, were factors allowed in determining and supporting a finding of total and permanent disability; Carroll Construction Co. v. Hutcheson, 347 So.2d 527 (Ala.Civ.App.1977), holding factors such as age, skills and education would support a finding of total disability where medical evidence was that employee suffered only a 5% physical disability; and Brunson Milling Co. v. Grimes, 267 Ala. 395, 103 So.2d 315 (1958), holding age, and lack of skills or education would support a finding of total disability where employee’s right arm was 80% to 85% disabled.

The appellee-employer, through able counsel, did not cite to, nor are we able to find, any case in which such factors were properly considered to reduce compensation to the injured worker. In fact, in the two cases employer cites in support of its argument, such factors were used for just the opposite result. In one case, cited by employer, these factors supported a finding of total disability when medical testimony indicated a 15% to 30% disability to the back, Edwards v. City of Huntsville, 49 Ala.App. 498, 273 So.2d 475 (1973); and in the second case, these factors were used to support a finding of 50% disability where the physical disability was only 20%. Mobile Paint Manufacturing Co. v. Crowley, 56 Ala.App. 673, 325 So.2d 182 (1975).

Not only do we not find any legal support for using these factors to diminish compensation, but we find commentary which clearly indicates such use would be contrary to the spirit and purpose of the Workmen’s Compensation Act.

Larson, in his treatise on Workmen’s Compensation Law, states:

“It has been stressed repeatedly that the distinctive feature of the compensation system, by contrast with tort liability, is that its awards ... are made not for physical injury as such, but for ‘disability’ produced by such injury. The central problem, then, becomes that of analyzing the unique and rather complex legal concept which, by years of compensation legislation, decision, and practice, has been built up around the term ‘com-pensable disability.’
“The key to the understanding of this problem is the recognition, at the outset, that the disability concept is a blend of two ingredients, whose recurrence in different proportions gives rise to most controversial disability questions: The first ingredient is disability in the medical or physical sense, as evidenced by obvious loss of members or by medical testimony that the claimant simply cannot make the necessary muscular movements and exertions; the second ingredient is de facto inability to earn wages, as evidenced by proof that claimant has not in fact earned anything.
“The two ingredients [physical limitations and vocational limitations] usually occur together; but each may be found without the other: A claimant may be, in a medical sense, utterly shattered and ruined, but may by sheer determination and ingenuity contrive to make a living for himself; conversely, a claimant may be able to work, in both his and the doctor’s opinion, but awareness of his injury may lead employers to refuse him employment. These two illustrations will expose at once the error that results from an uncompromising preoccupation with either the medical or the actual wage-loss aspect of disability. An absolute insistence on medical disability in the abstract would produce a denial of compensation in the latter case, although the wage loss is real and is directly traceable to the injury as in any other instance. At the other extreme, an insistence on wage loss as the test would deprive the claimant in the former illustration of an award, thus not only penalizing his laudable efforts to make the best of his misfortune but also fostering the absurdity of pronouncing a man non-disabled in spite of the unanimous contrary evidence of medical experts and of common observation.”

Larson, supra, at § 57.11 at 10-2, 10-6, 10-7.

Hence, the very reason for considering such factors as age, training, general health and education is to establish the decrease in or impossibility of the ability to earn which compounds the physical injury. See Larson, supra, at 57-61. The basis for compensation is the decrease in earning capacity. Nashville Bridge Co. v. Honeycutt, 246 Ala. 319, 20 So.2d 591 (1945). See also Larson, supra, at 57.11. To hold this decrease in the ability to earn against the employee when it may be partly due to vocational factors — as was apparently done in this case — is therefore contrary to the design and purpose of workmen’s compensation.

In the past we have held that “compensation is not limited to those in perfect health ....” B.F. Goodrich Co. v. Martin, supra. We might now add, just as a worker in less than perfect health is entitled to compensation, a worker whose age or background diminishes his earning capacity is also entitled to adequate compensation.

We find that the trial court apparently used the vocational factors of age, experience, education and general physical condition improperly as a matter of law to diminish the award, and therefore reverse and remand to the trial court for consideration in light of what we have stated above.

REVERSED AND REMANDED.

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


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    CITICORP PERSON TO PERSON FINANCIAL CENTER, INC., a corporation v. James F. SANDERSON, et al.
    Civ. 3354.
    Court of Civil Appeals of Alabama.
    Oct. 27, 1982.

      John Self, Hamilton, for appellant.
    William H. Atkinson of Fite, Davis & Atkinson, Hamilton, for appellees.
   EDWARD N. SCRUGGS, Retired Circuit Judge.

This is a civil contempt proceeding.

The plaintiff (Citicorp) and Mr. Sander-son had done business with each other for a number of years. Citicorp purchased finance papers from Mr. Sanderson as to mobile homes sold by him. If a mobile home customer defaulted on his obligation, Citicorp would require Mr. Sanderson to repossess the unit.

In 1981, Citicorp sued Mr. Sanderson and the parties settled those two civil actions. Included in the judgment of the circuit court as to the settlement was a requirement that, when Mr. Sanderson sold a unit, he would instanter transmit the sale proceeds to Citicorp. That proviso pertained to mobile homes which had been repossessed by Mr. Sanderson and which were subsequently sold by him to other customers.

In Citicorp’s petition to show cause, it was alleged that, as to two repossessed mobile homes, Mr. Sanderson had failed to deliver the sale proceeds to Citicorp contrary to the prior judgment of the trial court. After an ore tenus hearing before the circuit court, that court denied Citi-corp’s petition for contempt. They now appeal. We affirm.

By the terms of a written agreement and through the course of business dealings between the parties, a reserve account was established which was administered by Citi-corp. A certain amount of each sum financed for Mr. Sanderson’s customers was placed in this account. Citicorp could apply that account against any of Mr. Sanderson’s debts to them. While Citicorp was not required to obtain Mr. Sanderson’s prior consent to enter charges against his reserve account, they always called him prior to doing so and each time he granted permission to so debit that account. During the year after the settlement judgment, Citi-corp had established a pattern of behavior of charging repossessed mobile homes to his reserve account when they did not promptly receive any sales proceeds therefrom.

The only witness to testify at the trial .was Mr. Smith, Citicorp’s area vice president. At the request of the attorneys and just prior to concluding his testimony, he made a telephone call to his office in order to obtain certain information and figures as to several items. In that telephone conversation, Mr. Smith apparently discovered for the first time, and revealed it to the trial court, that, as to the two repossessed mobile homes involved in the present controversy, the dealer’s payoff for each of those units previously had been debited against Mr. Sanderson’s reserve account. He did not testify as to the date of that transaction.

Mr. Smith earlier had testified that the two mobile home customers had defaulted upon their payments and Citicorp required Mr. Sanderson to repossess them, which was done. Thereafter, Mr. Smith checked Mr. Sanderson s inventory and those two units were not on Mr. Sanderson’s lot. While Mr. Smith concluded that they had been sold, he did not know to whom they had been sold, for what amount nor their location. When he asked Mr. Sanderson about those two units, he was informed by Mr. Sanderson that “I’ll take care of it,” but he made no payment to Citicorp therefor.

Certiorari, and not an appeal, is the proper method to review a trial court’s action in refusing to hold a party in contempt of court. Nelson v. Darling Shop of Birmingham, Inc., 275 Ala. 598, 609, 157 So.2d 23, 35 (1963); Murphy v. Murphy, 395 So.2d 1047 (Ala.Civ.App.1981). However, we opt to treat Citicorp’s appeal as a petition for certiorari. Murphy v. Murphy, supra; Wilson v. Freeman, 376 So.2d 1096 (Ala.Civ.App.), cert. denied, 376 So.2d 1099 (Ala.1979).

On certiorari, the scope of review in contempt cases is limited to questions of law. The weight or sufficiency of the evidence will not be reviewed. As to factual questions, if there is any legal evidence which is supportive of the judgment of the trial court, we are bound thereby and must affirm. Smith v. Smith, 380 So.2d 897 (Ala.Civ.App.1980). Here, the very substantial evidence as previously summarized fully supports the judgment of the learned circuit court in denying Citicorp’s petition to place Mr. Sanderson in civil contempt of court. We affirm.

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

AFFIRMED.

All the Judges concur.


text:
    Amy Lois SAXON, et al. v. CITY OF MOBILE, Alabama.
    Civ. 3239.
    Court of Civil Appeals of Alabama.
    Nov. 3, 1982.

      Horace Moon, Jr. and William G. Jones, III, Mobile, for appellants.
    John L. Lawler, Mobile, for appellee.
   HOLMES, Judge.

This is a workmen’s compensation case.

The Circuit Court of Mobile County denied benefits to the widow of the employee and she appeals. We affirm.

The dispositive issue on appeal is whether there is any evidence to support the finding of the trial court that the employee’s death was not job related.

The pertinent facts are as follows:

In February, 1981, the employee, John Saxon, was employed by the City of Mobile as a policeman. In the early morning hours of February 4, Officer Saxon suffered a fatal heart attack while on duty.

Officer Saxon was off duty January 30, 31, and February 1. He returned to work February 2 and worked two hours as a witness. He then worked the evening shift February 2 beginning at 11:00 p.m. and ending at 7:00 a.m. February 3. During the day of February 3, he worked as a witness for eight hours. He then returned home and slept for a time before returning to work at 11:00 p.m. February 3. At 3:30 a.m. the morning of February 4, Officer Saxon suffered a heart attack and died.

After Officer Saxon’s death, Mrs. Saxon filed for workmen’s compensation benefits. The trial court found that the normal progression of heart disease caused Officer Saxon’s fatal heart attack and that his job “experience” cannot be related to the cause of his death with any degree of reasonable medical probability. This determination was obviously based, upon a review of the evidence taken ore tenus and the deposition of a medical doctor.

In workmen’s compensation cases the trial court’s finding is conclusive if there is any evidence that will support it. Legg v. Americold Compressor Co., 336 So.2d 1121 (Ala.Civ.App.1976); Purser Steel, Inc. v. McEwen, 47 Ala.App. 263, 253 So.2d 56 (1971). This court can consider neither the weight of the evidence nor thé propriety of the trial court’s finding of fact. Our inquiry is limited to a determination of whether there is any evidence to support the trial court’s finding. Kroger Co. v. Millsap, 280 Ala. 531, 196 So.2d 380 (1967); Tidwell Industries, Inc. v. Kennedy, 410 So.2d 109 (Ala.Civ.App.1982).

Mrs. Saxon, through able counsel, initially contends that the trial court erred by applying an incorrect test of causation to the facts of the case. We disagree.

The trial court relied on Strickland v. National Gypsum Co., 348 So.2d 497 (Ala.Civ.App.1977). In Strickland, the legal test was stated as follows:

“If in the performance of the duties for which he is employed an employee is exposed to a danger or risk materially in excess of that to which people not so employed are exposed, and an injury occurs, such injury may legally be determined to have arisen from his employment. ...”

348 So.2d at 499.

Applying the above stated test, in this instance, we cannot say the trial court erred.

This test was expounded upon further in Fordham v. Southern Phenix Textiles, Inc., 387 So.2d 204 (Ala.Civ.App.1980); and City of Tuscaloosa v. Howard, 55 Ala.App. 701, 318 So.2d 729 (1975).

In those cases, it is stated that the causation test can be separated into two distinct parts: legal and medical. Both of these must be satisfied in order to establish causation.

To establish legal causation the employee must show that in the performance of his duties he had to exert or strain himself or was exposed to risks or hazards in excess of that to which people not so employed are exposed. To establish medical causation the employee must show that the exertion or the exposure to certain conditions was, in fact, a contributing cause of her injury.

There is no argument as to the establishment of legal causation in the instant case. Although it is not set out specifically, it is clear from the record and the trial court’s judgment and briefs that it is the issue of medical causation that provides the basis of this appeal. Put another way, it is the dispute over whether the strain and conditions of police work (the legal aspect of causation) contributed to Officer Saxon’s fatal heart attack (medical causation) that is at issue here.

In the trial court’s final judgment and finding of fact, the trial judge explicitly states that the medical test is whether there is a causal relation between the heart attack and the exertion or strain of the employment. Although the exact language of neither Fordham nor Howard is used, we believe the trial court’s finding is a correct statement of the “test.” The trial court further found that “medical testimony . .. clearly established that there was no causal connection between any exertion or strain of Officer Saxon’s job and his fatal heart attack.”

The above clearly indicates that the trial court applied the correct “test”; hence no error.

Mrs. Saxon additionally contends, through able counsel, that the trial court’s findings are not supported by the evidence. We disagree.

A review of the record reveals sufficient evidence to support the trial court’s finding that Officer Saxon’s job did not contribute to his death.

The record shows that Officer Saxon had a history of heart disease (in fact, Officer Saxon suffered a heart attack in 1974); that he was obese; that he had smoked cigarettes for over twenty years; that he had high blood pressure; and that he had a family history of heart disease. Medical testimony was to the effect that all of this combined placed Officer Saxon in a very high risk group for heart attack.

In addition, it was testified that on the night he died, Officer Saxon was in his patrol car parked on the side of the road. Another police officer pulled up alongside Officer Saxon, and that officer testified, essentially, that Officer Saxon was suffering an attack. There was no significant evidence that Officer Saxon had been exposed to any condition or had exerted himself in any way prior to his attack.

At the trial, Mrs. Saxon contended that a call to back up another police car caused Officer Saxon to have such a stressful emotional experience that, combined with the everyday stress of police work, it precipitated his heart attack. However, the record supports the trial court’s finding that Officer Saxon was apparently suffering the heart attack when he received the back-up call.

Testimony was heard from two medical doctors, both qualified to express an opinion, concerning whether the everyday stress of police work contributed to Officer Saxon’s death. The trial court chose to put more credence on the testimony of the doctor who maintained that the normal progression of Officer Saxon’s “heart condition” caused his death and that everyday stress was too remote a factor to be considered.

For the above stated reasons, we find that the learned trial judge did not err in determining causation. This case is due to be and is affirmed.

AFFIRMED.

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


text:
    SECURITY ENGINEERS, INC. v. Linda J. ANDERSON and Department of Industrial Relations.
    Civ. 3349.
    Court of Civil Appeals of Alabama.
    Nov. 3, 1982.
    Alexander W. Jones, Jr. of Pritchard, McCall, Jones, Spencer & O’Kelley, Birmingham, for appellant.
    George Cocoris, Gen. Counsel, and Frank D. Marsh, Asst. Gen. Counsel, Dept, of Indus. Relations, Montgomery, for appellees.
   WRIGHT, Presiding Judge.

This is an unemployment compensation case.

The claimant, Linda J. Anderson, was discharged on April 5, 1981, by her employer, Security Engineers, Inc. (Security), for alleged misconduct and on April 7,1981, the claimant applied for unemployment compensation. After she was denied compensation, she appealed with the Appeals Referee who reversed the Examiner’s Determination. Security appealed this decision to the Alabama State Board of Appeals, which affirmed the Appeals Referee. Security elected to appeal the decision to the Walker County Circuit Court as provided by § 25-4-95, Code of Alabama 1975.

Between the time of the claim and the appeal by Security, Mrs. Anderson moved from where she resided at the time of the claim to Tuscaloosa County, where she now resides. However, during the time period in which to take appeal to the circuit court, it is uncontested that she resided in Tuscaloosa.

The requirements of § 25-4-95 are jurisdictional and failure to file in the proper county requires dismissal. Cruce v. DeMarco Concrete and Block Co., 380 So.2d 900 (Ala.Civ.App.1980); Director of the State of Alabama Department of Industrial Relations v. Nolin, 374 So.2d 903 (Ala.Civ.App.1979); Quick v. U-Totem of Alabama, 365 So.2d 1245 (Ala.Civ.App.1979). Here, Security did not file in the county in which Mrs. Anderson resides as required by § 25-4-95, and the case was correctly dismissed. We find no error in the circuit court’s dismissal. We also dismiss.

APPEAL DISMISSED.

BRADLEY, J., concurs.

HOLMES, J., concurs in the result.


author: DeCARLO, Judge. DeCARLO, Judge.

text:
    Mack APLIN v. STATE.
    4 Div. 893
    Court of Criminal Appeals of Alabama.
    Dec. 29, 1981.
    On Return to Remand Aug. 24, 1982.
    Rehearing Denied Oct. 12, 1982.
    Certiorari Denied, Nov. 24, 1982 Alabama Supreme Court 82-55.

      John E. Byrd of Byrd, Carter & Smith, Dothan, for appellant.
    Charles A. Graddick, Atty. Gen., and Jeffrey H. Long, Asst. Atty. Gen., for appellee.
   DeCARLO, Judge.

Possession of marijuana; one year imprisonment with four years probation.

On June 3, 1980, Houston County Deputy Sheriff Leroy Wood received information that a white male carrying a shotgun, scoop, and white bucket had been seen leaving the area behind the home of Paul Adams. Around 11:00 A.M., Deputies Wood and Charles Odom inspected the vicinity and found 10 marijuana plants of varying sizes growing in a wooded area near a creek about a quarter of a mile behind the Adams residence.

At 5:00 A.M. on June 4, 1980, they returned and kept the area under continuous surveillance. Around 7:00 P.M., Deputy Wood, who was hiding in the underbrush, saw a man whom he identified as the appellant walking down a path toward the plants. Deputy Wood stated that appellant was carrying a five-gallon bucket and was watering the marijuana plants.

Around 1:00 P.M. the next day, appellant was arrested for possession of marijuana. He was transported from work to the Adams’ residence where Deputy Wood advised him of his Miranda rights.

Deputy Wood overheard a conversation between appellant and Adams in which appellant asked Adams, “What in the hell is going on?” to which Adams replied, “We’re under arrest for possession of marijuana. They have found our patch and seen us tending to it.” Appellant answered, “how in the hell could they because we didn’t come out of the woods until seven, 7:30 last night.”

Deputy Wood stated that on June 5 the marijuana plants were gathered and given to him. He bundled them together, placed them in the county van, and transported them to the ABC office where they were locked up. On June 6,1980, he transported the plants to the crime lab at Enterprise. Deputy Wood stated that the plants were in the same condition when he delivered them as when he received them except that they had wilted and were tied together.

Houston County Deputy Sheriff Charles Odom testified that he participated in the June 4 stake-out of the marijuana plants. From his position he saw two men walk down a trail toward the plants. He was able to identify appellant as one of the men but he could not identify the other.

On June 5, he, Deputy Wood, and others returned to the area to make an arrest. Deputy Bryant was sent to arrest appellant at his place of employment and return him to the Adams’ residence. Once there, Deputy Odom overheard the conversation between appellant and Adams, to which he testified in substantially the same manner as Deputy Wood.

Houston County Deputy Sheriff Kenneth Bryant testified that around 1:47 P.M. on June 6, 1980, he arrested appellant at his place of employment. Deputy Bryant handcuffed appellant, read him his Miranda rights, and transported him to the Adams’ residence. He stated that appellant was brought there because a search was being conducted and appellant’s presence was requested.

Once arriving at the Adams’ residence, appellant was allowed out of the patrol car. He walked over to Adams and began a conversation which Deputy Bryant overheard. Bryant recited the same conversation, in substance, as that recalled by Deputies Wood and Odom.

Lieutenant Gerald Mundy of the Houston County Sheriffs Department testified that he was present at the Adams’ residence on June 5, and he also overheard the same conversation between appellant and Adams. Mundy stated that several relatives of both men were also present. He said that appellant was not being questioned at the time he conversed with Adams and was separated from him immediately afterward.

Houston County Sheriff A.B. Clark and Chief Deputy O.E. Jones testified that they gathered the marijuana plants and turned them over to Deputy Wood. They both testified that the plants were in the same condition when they turned them over to Deputy Wood as when they gathered them.

Joe Saloom of the Department of Forensic Sciences testified that on June 6, 1980, he received several marijuana plants from Deputies Wood and Odom. He took representative samples from the plants, tested them, and determined that they were marijuana.

Ms. Judy Byrd testified that she was custodian of all Houston Circuit Court felony records. She identified a certified copy of a judgment entry pertaining to a prior marijuana conviction of appellant as a record within her care and custody. The record was admitted into evidence. Afterwards, appellant stipulated that the judgment entry reflected a prior conviction pertaining to him.

At the conclusion of the State’s case, appellant moved to exclude the evidence for failure to prove a prima facie case. The trial court overruled appellant’s motion.

Appellant’s evidence attempted to establish an alibi that on June 4 he was doing various household jobs from the time he arrived home from work at 5:30 P.M., until about 8:00 or 9:00 P.M.

I

Appellant contends that the trial court improperly allowed Deputy Wood to testify to the substance of his conversation with Paul Adams as it constituted hearsay testimony. The trial court gave as the basis for its ruling that the statements were part of the res gestae and fell within an exception to the hearsay rule.

Statements inculpatory in nature made by an accused which directly relate to facts or circumstances of the crime and his participation therein, are subject to the same rules of admissibility as are confessions; that is they are prima facie involuntary and inadmissible, but proof of the circumstances attending their narration which establishes their voluntary nature is sufficient without the customary voluntariness predicate. Drake v. State, 257 Ala. 205, 57 So.2d 817 (1952); Carroll v. State, Ala.Cr.App., 370 So.2d 749, cert. denied, Ala. 370 So.2d 761 (1979); Kendrick v. State, 55 Ala.App. 11, 312 So.2d 583 (1975).

In the instant cause, appellant had twice been apprised of his Miranda rights, initially when he was arrested and later immediately prior to his conversation with Adams. He initiated the conversation by first speaking to Adams. In addition, appellant was not being questioned by law enforcement officers at the time he talked to Adams and his statements were not the result of any custodial interrogation by them. Moreover, appellant’s statements were made to a private individual, friend, and family member by marriage whose statements to appellant were apparently not made or initiated at the direction of any law enforcement officer. We find appellant’s statements to be voluntary, spontaneous comments made freely without instigation or prompting by the law enforcement officers present.

Thus, the trial court properly admitted Deputy Wood’s testimony concerning appellant’s conversation with Adams into evidence. See generally Floyd v. State, Ala.Cr.App., 375 So.2d 277 (1978), cert. denied, Ala., 375 So.2d 280 (1979); Beachum v. State, Ala.Cr.App., 346 So.2d 531 (1977).

II

Appellant asserts that the trial court erred in failing to give curative instructions to the jury regarding a portion of the State’s closing argument. Appellant’s objection to the argument was sustained and his motion to exclude it from the jury’s consideration was granted.

Appellant argues that the trial court should have given, ex mero motu, a curative instruction to the jury instructing it to disregard the objectionable portion of the State’s argument.

No ruling adverse to appellant was made by the trial court. There was no request for a curative instruction and no objection to the failure of the trial court to give such an instruction. Thus, nothing exists from which appellant may appeal. Yates v. State, Ala.Cr.App., 390 So.2d 32 (1980); Matthews v. State, 16 Ala.App. 514, 79 So. 507 (1918); See also Nichols v. State, 267 Ala. 217, 100 So.2d 750 (1958); Anderson v. State, 209 Ala. 36, 95 So. 171 (1922). In addition, the comment was not so grossly improper and highly prejudicial to appellant that the trial court should have given a curative instruction on its own. Nichols, supra; Anderson, supra.

III

We have examined the evidence in this case and have found it sufficient for the jury to have concluded that appellant committed the act charged; therefore, the trial court properly denied his motion to exclude the State’s evidence. Yarbrough v. State, Ala.Cr.App., 405 So.2d 721, (6 Div. 335 Ms. June 23, 1981).

IV

After the jury found appellant guilty, the State requested a pre-sentence report and investigation. The trial court ordered the report and on January 16, 1981, held a hearing prior to sentencing. The pre-sen-tence report revealed, in addition to the prior felony conviction appellant admitted during the trial, several other prior felony convictions.

The record reveals that the report was prepared on November 21, 1980, and submitted to the trial court on the day of sentencing. It also illustrates that the trial court had reviewed the report prior to the hearing. Further, the record indicates that the district attorney was aware of appellant’s prior convictions: “We just point out his [appellant’s] record. And that’s all, Your Honor.” It is also obvious that the appellant’s counsel previously reviewed the report and knew of appellant’s prior record.

Section 13A-5-9, Code of Alabama (Supp.1981), mandates that once it is shown that a criminal defendant has been previously convicted of any felony and after-wards has committed another felony, he must be punished under the Habitual Felony Offender Act.

Once the prosecutor has knowledge of an accused’s prior record, he must, as an officer of the court, make the convictions known to the trial court in order that the judge may sentence the accused in accordance with the clear mandate of the recidivist statute. Miliner v. State, Ala.Cr.App., 414 So.2d 133, (1981). Consequently, the prosecution has no discretion in apprising the trial court of an accused’s prior convictions if he is aware of them.

The record is clear that both parties and the trial court knew of appellant’s prior convictions before he was sentenced. At this point the prosecution should have informed the trial court of the applicability of the habitual felony offender statute and given notice to the appellant of the State’s intention to request sentencing under the act.

Assuming that the prosecution did not have knowledge of appellant’s prior convictions until the day of appellant’s sentencing hearing, it should have requested a continuance in order to cure any defects in notice. Smith v. State, Ala.Cr.App., 401 So.2d 251, cert. denied, Ala., 401 So.2d 257 (1981).

In Motley v. State, Ala.Cr.App., 409 So.2d 945, (1981), we held that narcotics convictions under § 20-2-70, supra, were to be considered as Class C felonies for purposes of applying the Habitual Felony Offender Act. § 13A-5-4, Code of Alabama (Amended 1977).

We remand this cause to the trial court with directions to conduct another sentencing hearing applying the. Habitual Felony Offender Act. The State should, a reasonable time prior to the hearing, notify appellant of the prior convictions under which it plans to proceed, although for all practical purposes appellant has already been informed. All parties should be present and any evidence offered should be recorded for this court’s review. A complete transcript of these proceedings shall then be transmitted to this court for review.

REMANDED WITH DIRECTIONS.

All the Judges concur.

ON RETURN TO REMAND

DeCARLO, Judge.

The transcript submitted on Return to Remand shows that a sentencing hearing was conducted by the trial judge with the appellant, his attorney, and the district attorney present. Testimony was taken at that time and the record demonstrates a clear compliance with § 13A-5-9, Code of Alabama 1975, and this court’s request on remandment.

Therefore the judgment of conviction by the Houston Circuit Court is affirmed.

AFFIRMED.

All the Judges concur.


author: BARRON, Judge.

text:
    James W. PAYNE v. STATE.
    3 Div. 373.
    Court of Criminal Appeals of Alabama.
    April 20, 1982.
    Rehearing Denied May 18, 1982.

      Vaughan H. Robison and Philip H. Butler of Robison & Belser, Montgomery, for appellant.
    Charles A. Graddick, Atty. Gen. and Ri-vard Melson, Asst. Atty. Gen., for appellee.
   BARRON, Judge.

Appellant was tried on an indictment charging him with the murder of Clyde Davis. The jury convicted appellant of manslaughter in the second degree, fixing punishment “at imprisonment in the County Jail for 12 months and a fine of $500.00”; the trial court sentenced him accordingly.

During the early hours of Sunday, April 15, 1979, appellant, his brother, and two others were riding around in appellant’s automobile, after appellant had closed his service station at the intersection of Southern By-Pass and 1-65 in Montgomery. After riding to various locations, they had started back to appellant’s service station when appellant decided that he needed to go to Gowan’s Truck Stop, a truck stop in the immediate vicinity of the service station, to inform them that his wrecker service would be available that' day even though his service station would be closed. While one of the passengers went inside Gowan’s Truck Stop to deliver the message, an argument erupted between appellant and a truck driver at the truck stop, in a conversation on the citizens’ band radio. The conversation culminated in both parties’ exchanging epithets and in appellant’s asking the truck driver’s location and threatening bodily harm to the truck driver. The truck driver responded that he was about to leave the truck stop, but that he would pull his red Wiley Sanders truck to the front row of the truck stop’s parking lot; this was followed by a reciprocal threat of bodily harm to appellant.

Appellant then drove his car toward two Wiley Sanders trucks parked in the truck stop parking lot; the direction of travel of appellant’s car was such that it was not heading toward an exit from the parking lot. As appellant’s car approached one of the Wiley Sanders trucks, the truck door opened and someone, from the dark inside, began discharging a firearm at appellant’s car. Appellant also fired, with one of the shots killing the truck driver. After the exchange of gunfire ended, appellant drove across the By-Pass to his service station.

Appellant urges three areas of error: two dealing with the refusal of the trial court to give requested written charges, and one concerning a refusal by the trial court to permit appellant and his counsel to confer during a recess in the midst of appellant’s testimony.

I

Appellant objects to the refusal of the trial court to give to the jury appellant’s written charge Number 25, dealing with the self-defense plea and reading as follows:

“The Court charges the jury that involving a plea of self-defense, you must decide whether the defendant was free from fault in bringing on the difficulty. The difficulty in this case is the shooting incident. If you find from the evidence that the deceased fired the first shot, the question you must answer is, did the defendant by his conduct create the necessity of the deceased firing the first shot.”

Authority is abundant for the proposition that a person who enters willingly into a. fight cannot rely on self-defense if he kills his adversary. Pair v. State, 33 Ala.App. 108, 31 So.2d 107 (1947); Key v. State, 27 Ala.App. 189, 168 So. 602 (1936); Turner v. State, 11 Ala.App. 1, 65 So. 719 (1914). Whether appellant went willingly to fight the truck driver is a matter clearly within the province of the jury, and the evidence is obviously sufficient to support the jury’s conclusion.

We do not agree that the requested charge states a correct proposition of law. Accordingly, it was properly refused by the trial court.

II

Appellant’s requested charge Number 28 was not filed before the jury retired, but was filed after the jury deliberations had begun and the jury had returned seeking further clarification from the trial court. The time at which written charges must be presented, as established by statute and precedent, is any time during the trial and before the jury retires. Smith v. State, 51 Ala.App. 527, 287 So.2d 238 (Ala.Cr.App.1973). The filing of the requested charge after the jury had retired for deliberations came too late. Therefore, nothing was preserved for review on this issue.

Ill

Appellant argues denial of due process and denial of equal protection due to the refusal of the trial court to permit him to confer with his counsel during a brief recess in the midst of appellant’s testimony.

The question presented is whether a restriction, however brief, on a criminal defendant’s right to confer with counsel is tantamount to an unconstitutional deprivation of the right to counsel. We think it is.

During the course of the trial, after the State had rested its case and while appellant was on the witness stand, a brief recess was taken. At that time, the trial court advised appellant’s counsel that pursuant to the trial court’s “rule for the past five years” there was to be “no conversation between lawyers and the defendant [appellant] while the defendant [appellant] is in the process of his testimony.” Objections and exceptions were duly noted. Obviously, the reason for such rule is to assure that the testimony would be the same as though no recess had been taken, or there had been no break or interruption in the testimony. More succinctly, such rule would minimize the possibility that an accused’s counsel would improperly influence his client, possibly tainting the testimony. There are other avenues of protection available to the trial court to deter or prevent any such improper conduct on the part of counsel. While the motives for the trial court’s rule are indeed laudable, such rule without doubt erects an unconstitutional barrier to the effective right to counsel.

Depriving a criminal defendant of the right to consult with counsel during court recesses — regardless of how brief the recesses may be — violates the constitutional right to effective assistance of counsel. United States v. Conway, 632 F.2d 641 (5th Cir.1980).

For the error indicated, the judgment of the trial court is reversed and the cause remanded.

REVERSED AND REMANDED.

All the Judges concur.


author: PER CURIAM.

text:
    Ex parte State of Alabama. (Re James W. PAYNE v. STATE of Alabama).
    81-718.
    Supreme Court of Alabama.
    Nov. 5, 1982.
    Charles A. Graddick, Atty. Gen. and Joseph G.L. Marston, III, Asst. Atty. Gen., for petitioner.
    Vaughan H. Robison and Philip H. Butler of Robison & Belser, Montgomery, for respondent.
   PER CURIAM.

Writ quashed, 421 So.2d 1303, as improvidently granted.

In quashing the writ, we agree with the Court of Criminal Appeals, 391 So.2d 140, that the absolute rule of the trial court that deprives a defendant of the right to consult with counsel while the defendant is in the process of testifying is overly broad and overly restrictive. By quashing the writ, however, we do not intend to suggest that a trial judge is without some discretion in the area.

WRIT QUASHED AS IMPROVIDENTLY GRANTED.

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