author: PER CURIAM.

text:
    Carolyn Ann WILLIAMSON, etc. et al. v. Bobby C. MATTHEWS et al.
    78-267.
    Supreme Court of Alabama.
    Jan. 25, 1980.

      Virgil M. Smith, Gadsden, for appellants.
    George P. Ford of Dortch, Wright, Ford & Russell, Gadsden, for appellee Family Sav. Federal Credit Union.
    William H. Rhea, III of Rhea, Boyd & Rhea, Gadsden, for appellees Bobby C. Matthews and Vicki D. Matthews.
   PER CURIAM.

This is an appeal from an order denying appellant Williamson injunctive relief seeking to cancel a deed and to set aside a sale of property from Williamson to the Matthews. We reverse and remand.

The Matthews learned from members of their family that Williamson wanted to sell her home. Her mortgage was in default, and the mortgagee was threatening foreclosure. There was some evidence to the effect that Williamson wanted to get enough equity to help her finance a mobile home. When they went to Williamson’s house to inquire about it, Williamson showed the Matthews through the house. Bobby Matthews asked, Williamson how much she wanted for it. Williamson told the Matthews to come back the next day. It is at this point that the parties are in disagreement. The Matthews contend that Williamson offered to sell her equity for $1,700, and Williamson contends that she offered to sell her equity for $17,000, and that the Matthews agreed to pay off the mortgage. It is undisputed that on September 27,1978, the parties went to attorney Arthur J. Cook’s office to execute a contract for the sale of the property. The contract of sale stated the purchase price to be $1,800 ($100 increase reflecting an agreement between the parties concerning some of the furniture in the home) plus the unpaid balance of the mortgage. Attorney Cook testified that he read the terms of the sale to both parties.

The parties then met on October 10,1978, at attorney Larry Keener’s office to sign the deed and to close a loan from appellee Family Savings Federal Credit Union to the Matthews so that the Matthews could buy the property from Williamson. Appellee The Brooklyn Savings Bank was about to foreclose the mortgage on Williamson’s property. Keener disbursed part of the loan proceeds to Williamson. Williamson signed the deed to the property.

This Court was advised at oral argument that further disbursement of funds has been held up pending final disposition of this appeal.

Immediately after the sale, Williamson became concerned that she had not received her full consideration and consulted an attorney.

Two days later, on October 12, 1978, Williamson filed a petition for injunctive relief alleging inadequate consideration and mental weakness. The trial court granted Williamson a temporary restraining order preventing the sale from being completed, but at a full hearing on the petition for injunc-tive relief, the court denied Williamson the relief she requested. Williamson moved for and was granted a rehearing and further testimony was taken on the issue of Williamson’s alleged mental weakness. Following the rehearing, the court issued a final order, again denying Williamson in-junctive relief. This appeal followed.

Williamson’s contention of inadequacy of consideration is based upon evidence which she introduced at trial showing a property appraisal of $16,500. Using this figure and deducting the existing mortgage of approximately $6,500, Williamson’s equity would amount to $10,000, $8,300 more than the $1,700 she was paid. Williamson contends that she was due $17,000 for her equity, which would result in the property being valued at $23,500 (adding the mortgage of $6,500). In other words, accepting Williamson’s first contention, the Matthews should have paid her $8,300 more; accepting the second contention, Williamson should receive $15,300 more. There was also evidence that the credit union appraised the property for $19,500. This would reflect an equity of $13,000. Accepting this figure, she should have been paid $11,300 more. Thus, the claim of inadequacy of consideration (and it would seem to be well established) varied from $8,300 to $15,300.

Although it is a fundamental principle of law that inadequacy of consideration is not, by itself, a sufficient ground to set aside a contract for the sale of land, in Judge v. Wilkins, 19 Ala. 765, 772 (1851), over 128 years ago, this Court stated that:

“ . . . [Inadequacy of price within itself, and disconnected from all other facts, cannot be a ground for setting aside a contract, or affording relief against it. There must be something else besides the mere inadequacy of consideration or inequality in the bargain, to justify a court in granting relief by setting aside the contract. What this something else besides the inadequacy should be, perhaps no court ought to say, lest the wary and cunning, by employing other means than those named, should escape with their fraudulent gains. I, however, will venture to say, that it ought, in connection with the inadequacy of consideration, to superinduce the belief that there had been either a suppression of the truth, the suggestion of falsehood, abuse of confidence, a violation of duty arising out of some fiduciary relation between the parties, the exercise of undue influence, or the taking of an unjust and inequitable advantage of one whose peculiar situation at the time would be calculated to render him an easy prey to the cunning and the artful. But if no one of these appears, or if no fact is proved that will lead the mind to the conclusion, that the party against whom relief is sought has suppressed some fact that he ought to have disclosed, or that he has suggested some falsehood, or abused in some manner the confidence reposed in him, or that some fiduciary relation existed between the parties, or that the party complaining was under his influence, or at the time of the trade was in a condition, from any cause, that would render him an easy victim to the unconscientious, then relief cannot be afforded; for inadequacy of consideration, standing alone and unsupported by any thing else, can authorize no court, governed by the rules of the English law, to set aside a contract. . . ”

19 Ala. at 772.

Even a total failure of consideration is an insufficient ground for the cancellation of an otherwise valid deed. Ingram v. Horn, 294 Ala. 353, 317 So.2d 485 (1975).

Although in the case at bar there is no proof of suppression of fact, presentation of falsehood, abuse of confidence, fiduciary relationship between the parties, overreaching, or undue influence, the Court in Judge did not limit “this something else” besides mere inadequacy of consideration to these factors alone.

Williamson contends that the “something else” in the case at bar is mental weakness, either due to some form of permanent mental incapacity or due to intoxication. Of course, the contracts of an insane person are absolutely void. Walker v. Winn, 142 Ala. 560, 564, 39 So. 12 (1904). Williamson, however, is not contending that she was insane at the time of the contract, but rather is contending that she had a mental incapacity, which coupled with inadequacy of consideration requires the setting aside of the transaction.

Our rule in such a case is that a party cannot avoid, free from fraud or undue influence, a contract on the ground of mental incapacity, unless it be shown that the incapacity was of such a character that, at the time of execution, the person had no reasonable perception or understanding of the nature and terms of the contract. Weaver v. Carothers, 228 Ala. 157, 160, 153 So. 201 (1934).

Our rule regarding incapacity due to intoxication is much the same. The drunkenness of a party at the time of making a contract may render the contract voidable, but it does not render it void; and to render the contract voidable, it must be made to appear that the party was intoxicated to such a degree that he was, at the time of the contracting, incapable of exercising judgment, understanding the proposed engagement, and of knowing what he was about when he entered into the contract sought to be avoided. Snead v. Scott, 182 Ala. 97, 104, 62 So. 36 (1913). Proof merely that the party was drunk on the day the sale was executed does not per se, show that he was without contractual capacity; there must be some evidence of a resultant condition indicative of that extreme impairment of the faculties which amounts to contractual incapacity. Snead v. Scott, supra.

The burden was therefore east on Williamson to show, by clear and convincing evidence, that she was incapable, at the time of execution, of executing the contract for sale and of executing the deed. Snead v. Scott, supra.

We hold that Williamson met this burden. The testimony elicited at trial by Williamson’s attorney charted a history of aberrative behavior. A Mrs. Logan, Williamson’s mother, provided lengthy testimony about her daughter’s past aberrations. Additionally, Dr. Fredric Feist provided expert testimony regarding Williamson at the rehearing. He stated that she showed signs of an early organic brain syndrome due to her excessive drinking, that she had emotional problems, that he thought that some of her brain cells were destroyed, and that her ability to transact business had been impaired.

Indulging the usual presumption due the trial court, we nevertheless hold that, under the facts of this case, it appears to us that Williamson was not, at the time of execution, capable of fully and completely understanding the nature and terms of the contract and of the deed. Cross v. Maxwell, 263 Ala. 509, 83 So.2d 211 (1955). Williamson’s contention that she was intoxicated supports this holding. Testimony was admitted from various witnesses to the effect that Williamson had a history of drinking, that she still had the problem at the time she executed the contract, and that she had in fact taken a couple of drinks before leaving for the meeting in attorney Arthur Cook’s office. We do not hold that Williamson was so intoxicated as to render her incapable of contracting. However, numerous factors combine to warrant the conclusion that she was operating under diminished capacity. Testimony showed that Williamson’s capacity to transact business was impaired, that she had a history of drinking, that she had been drinking the day she conducted negotiations, and that she had an apparent weakened will because she was pressured by the possibility of an impending foreclosure. Moreover, Williamson made complaint to an attorney only hours after the transaction. These factors are combined with a gross inadequacy of consideration.

No mitigating factors exist to the contrary. No right of any intervening third party is involved. Further disbursement of the loan proceeds has been frozen until final disposition of this appeal. No hardship is worked upon any party.

Although the evidence was presented before the trial court ore tenus, and in such a case where there is evidence to support the trial court’s judgment, this Court will not ordinarily reverse that judgment unless there is a showing of plain and palpable error or manifest injustice [Terry v. Buttram, 368 So.2d 859, 860 (Ala.1979)], we consider that the record supports a finding in this case of such manifest injustice as to require a reversal of the judgment.

We recognize that two able and conscientious attorneys handled parts of the transaction. They are in no wise responsible for, nor were they aware of, the factors which prompt us to require a reversal of this case.

REVERSED AND REMANDED.

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


source: Caselaw Access Project

author: BEATTY, Justice.

license: Public Domain

text:
    REAL COAL, INC. v. THOMPSON TRACTOR COMPANY. Norman C. REID et al. v. THOMPSON TRACTOR COMPANY.
    Nos. 78-529, 78-559.
    Supreme Court of Alabama.
    Jan. 25, 1980.
    Orrin R. Ford of Najjar & Najjar, Birmingham, for appellants Norman C. Reid and R & K Coal Co.
    Carol J. Millican and Tommy E. Hill, Birmingham, for appellant Real Coal, Inc.

      John H. Morrow and Braxton Schell, Jr. of Bradley, Arant, Rose & White, Birmingham, for appellee.
   BEATTY, Justice.

Appeals by the defendants from summary judgments for the plaintiff. We affirm.

The plaintiff, Thompson Tractor Company, filed its complaint to recover money allegedly due on open account and upon certain equipment rental agreements from the defendants Norman C. Reid, Real Coal, Inc., Southern States Coal, Inc., Poe Coal Company, and R & K Coal Company, a partnership. The count of the complaint against Reid was based upon his personal guaranties for the debts of two of the defendant companies. All of the defendants filed motions to dismiss. The motions of Reid and two of the companies, Poe and R & K, were overruled. While the remaining motions were pending, and before any answers were filed by the defendants, the plaintiff moved for summary judgment. In support of this motion the plaintiff filed an affidavit of one Dickson, plaintiff’s vice-president for finance, and exhibits which Dickson, in his affidavit, vouched for as reflecting the sums owed by Southern States, Real, Poe, R & K, and Reid as guarantor or partner. These particular exhibits consisted of invoice dates, invoice numbers, and amounts. Additional exhibits, consisting of copies of guaranties executed by Reid for Southern States’ and Real’s debts to plaintiff were also attached. An affidavit of Reid in opposition to the motion for summary judgment was filed on the date on which the motion for summary judgment was heard.

Following a hearing on the motion the trial court granted partial summary judgment against Southern States Coal, Inc. (from which no appeal has been taken), against Real Coal, Inc., R & K Coal Company, and against Norman Reid. These judgments were made final under Rule 54(b), ARCP.

The defendants’ essential point on their appeals questions the propriety of summary judgments.

To begin with, nothing in the language of Rule 56 restricts the grant of summary judgment before an answer is filed, which was the situation here. Rule 56(a) grants permission to move for summary judgment “. . .at any time after the expiration of 30 days from the commencement of the action or after service of a motion for summary judgment by the adverse party . ..” No issue is made on the timeliness of the motion, and the record reflects that it was made more than thirty days after the action was filed. As subsection (c) discloses, the pertinent inquiry at any stage at which the motion is made is whether there is a genuine issue of material fact.

Consideration of the pleadings, the Dickson affidavit and the accompanying exhibits discloses that the plaintiff had established a prima facie case against each of these defendants. Dickson himself verified the exhibits as accurately reflecting the sums owed: “I have personally reviewed the books and records of the company with respect to the obligations of the defendants to plaintiff and have caused the attached exhibits to be prepared to reflect the items which comprise each account.” This Rule 56(e) was satisfied, in that the affidavit set forth facts “as would be admissible in evidence” and showed that Dickson was “competent to testify to the matters stated therein.” Cf. Jordan v. Rice-Stix Dry Goods Co., 33 Ala.App. 190, 31 So.2d 372 (1947). Contrary to the defendants’ insistence, the fact that the plaintiff did not proceed under Code of 1975, § 12-21-111 did not render the itemization inadmissible. That Code section merely creates a rule of evidence and does not preclude a claim on an account from being otherwise proved. Duck Brand Co. v. Douglass, 16 Ala.App. 437, 78 So. 635 (1918). That is to say, although the accounts stated may not have been self-proving under the statute cited, nevertheless on motion for summary judgment they could be considered together with Dickson’s sworn statement to determine their admissibility. Polytinksy v. Stewart, 158 Ala. 179, 48 So. 395 (1909). And see Willingham v. Wesley Hardware Co., 227 Ala. 280, 149 So. 703 (1933).

In opposition to the plaintiff’s motion for summary judgment the defendant Reid filed his own affidavit. The defendants contend on appeal that this affidavit raised genuine issues of fact. On the other hand, the plaintiffs correctly point out that the Reid affidavit itself was not timely filed under Rule 56(c), ARCP: “The adverse party [Reid] prior to the day of hearing may serve opposing affidavits.” However, the record indicates that the trial court, in its discretion, allowed the Reid affidavit to be considered, because during the hearing on the plaintiff’s motion the trial court remarked: “. . . and I really do not think your affidavit is sufficient, your counter affidavit.” Having allowed the Reid affidavit nevertheless the trial court determined by that statement that it did not set forth “specific facts showing that there is a genuine issue for trial.” We agree. Reid’s affidavit makes an attack upon the attachments to Dickson’s affidavit, not upon the allegations of the plaintiff’s complaint. Reid’s affidavit simply states that Dickson’s exhibits do not accurately reflect any sums owed. Nowhere in Reid’s affidavit does he deny the debts. Reid’s affidavit does attempt to contravene his own guaranties relied upon by the plaintiff:

6. At the time of the execution of the guaranties attached to the complaint, representatives of the Plaintiff represented to me that the purpose of the guaranties was only for parts and services and for no other purpose. It was never intended either by myself or by the Plaintiff to my knowledge, that the guaranties were executed for the purpose of guaranteeing rental payments or other obligations.

Those allegations must be viewed against the written guaranties which, it is uncon-troverted, Reid himself signed. Those written guaranties, clearly obligating Reid, extend to rental payments or any other obligations. The terms of those guaranties could not be contradicted or modified by Reid’s parol testimony at trial in the absence of mistake, fraud or ambiguity. Gunnels v. Jimmerson, Ala., 331 So.2d 247 (1976). Because Reid’s affidavit raised no issue of mistake, fraud or ambiguity, it raised no genuine question of fact precluding summary judgment.

Finally, Reid contends that summary judgment should not have been granted because “[Ijnformation as to which pieces of equipment the rental charges apply is uniquely within the knowledge of Plaintiff.” This argument possesses no merit. Prior to the hearing none of the defendants requested any documentation of the assertions in Dickson’s affidavits or of the items listed in the exhibits. Nor did any of them present to the trial court any facts justifying the conclusion that they could not adduce opposing facts. See Rule 56(f), ARCP. Plainly, the itemization of charges in those exhibits was sufficient for identification purposes had the defendants wished to take issue with the charges.

In the absence of a response setting forth specific facts raising a genuine issue for trial, summary judgment was correctly granted. Rule 56(a), ARCP. Therefore that judgment must be, and is, affirmed.

AFFIRMED.

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


author: JONES, Justice.

text:
    Theodore J. BAUMAN and Nathan Greenberg v. Joseph M. HAYES et al.
    No. 78-564.
    Supreme Court of Alabama.
    Jan. 25, 1980.

      C. R. Lewis, R. H. Ramsey, III, Dothan, for appellants.
    Jere C. Segrest of Hardwick, Hause & Segrest, Dothan, for appellees.
   JONES, Justice.

Appellants, Theodore J. Bauman and Nathan Greenberg, brought suit against Ap-pellees, the Hayeses, alleging the latter had breached their fiduciary duty as corporate directors by refusing to convey land to the corporation created by Appellants and Ap-pellees for the purpose of land development.

The Hayeses are owners of the real estate which is the subject of this action. In 1971, they signed an “Incorporation and Sales Agreement” with Appellants (Bau-man and Greenberg), the purpose of which was to create a corporation to develop the Hayeses’ property in several stages. Bau-man and Greenberg were to provide the expertise and the Hayeses, the land. The agreement provided that demand for additional land for development would have to be made by a majority vote of the corporation’s directors who were equally divided between the two factions. In 1975, the Bauman and Greenberg faction demanded additional land for development and the Hayes faction refused.

The trial Court, awarding judgment to the Hayes faction, made the following findings, which we summarize: That, in accord with the intentions of the parties, the capital stock of the corporation was equally divided between Appellants and Appellees, as were the votes of the board; that all corporate decisions were to be determined by a majority vote of the board; that there had never been a majority vote of the board seeking conveyance and development of the land in dispute; and that this deadlock was purposefully created by the parties so as to require mutual consent of all the parties before proceeding to develop the disputed real estate. We agree and affirm.

Bauman and Greenberg contend that the Hayeses, as directors and stockholders of the corporation, were in a fiduciary relationship with the corporation and that their refusal to vote to convey additional land for development to the corporation constituted a deliberate “balking of a corporate purpose” in order to secure personal advantage. See Morad v. Coupounas, 361 So.2d 6 (Ala.1978). Appellants also allege that the Hayeses breached their contractual obligation to act in good faith. We opine that these contentions are based upon a misconstruction of the true purpose of the corporation. As found by the trial Court, the parties here established the corporation for the limited purpose of developing the Hayeses’ land, with the use of Appellants’ expertise, only so long as both factions mutually agreed to its development by the corporation.

Appellants assume that, because the Hayeses’ refusal to convey additional land deprived the corporation of additional profits, the Hayeses necessarily acted contrary to the purpose of the corporation. A corporation may be established for any purpose, broad or limited, that is not itself contrary to law. The “Incorporation and Sales Agreement,” signed in 1971, set a price of $15,000 an acre for the land to be conveyed to the corporation. In sum, the trial Court concluded that because the land was to be conveyed and developed in stages over a period not exceeding five years, the Hayes-es intentionally acted to protect themselves against conveyance to the corporation at a deflated price in the event their land increased in value over the five-year period for development.

According to the evidence, the Hayeses first considered inclusion of an escalation clause in the agreement. Later, however, they chose to protect themselves against further conveyances contrary to their interests by inserting into the corporation’s by-laws the provision strictly limiting corporate action to decisions taken by a majority of the board—which by agreement of the parties was weighted equally between the two factions. Thus, what the parties could have accomplished by way of contract among themselves, they chose instead to accomplish through the structure of the corporation itself. As such, the requirement of mutuality became a part of the corporate purpose.

Where the directors and/or stockholders of a corporation have acted in a manner wholly consistent with the very purpose for which the corporation was created, it follows, by so doing, they could not have “balked” a corporate purpose or breached their fiduciary duty. Thus, the instant case is easily distinguishable from Morad v. Coupounas, supra, cited by Appellants in support of their position. In that case, corporate officers and directors of one medical laboratory incorporated a second competing medical laboratory on which they also served as officers and directors. The Court found the defendants had breached their fiduciary duty to the first corporation by forming the second. Though both corporations were profitable, the evidence was that the two competed with one another and that one of the purposes of the first corporation—to expand into new areas — had been thwarted by the formation of the second corporation.

It is true that here, as in Morad, the corporate directors/stockholders have secured a personal advantage by their acts; but here, unlike in Morad, the actions of the directors/stockholders were fully consonant with the purpose of the corporation. Nor can it be said that the Hayeses were, guilty of “seizing a corporate opportunity” because they refused to convey land in 1975 at 1971 prices. The Hayeses have merely retained the land which was always theirs and which they never contracted to convey unconditionally to the corporation.

Appellants’ second contention, that the Hayeses acted in bad faith, is similarly without merit. It is alleged the agreement among the parties contemplated development by the corporation of the entire acreage referred to in the 1971 contract. At most, the contract contemplated the probable development of the entire tract by the corporation. Appellants do not contend they lost money as a result of their association with the Hayeses, or that the development of the remainder of the tract is necessary before they will realize a profit as a result of their contract with Appellees. To the contrary, it is conceded the relationship was mutually profitable to both factions up until the time of their dispute. ■ Appellants merely wish to extend the relationship beyond the point of mutual benefit which, as found by the trial Court, is contrary to the express intent of the parties when they formed their agreement and entered into their corporate relationship.

AFFIRMED.

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


text:
    Gary W. BIBB v. Janice NELSON.
    78-574.
    Supreme Court of Alabama.
    Jan. 25, 1980.
    Sherman B. Powell, Decatur, Francis H. Hare, Birmingham, for appellant.
    John S. Key, Decatur, for appellee.
   BEATTY, Justice.

Plaintiff, Gary Wayne Bibb, appeals from the trial court’s denial of his motion for a new trial. We reverse and remand.

Plaintiff brought this action against defendant, Janice Nelson, seeking damages for personal injuries he sustained as the result of a collision between his automobile and a vehicle driven by defendant. After trial, the jury returned a verdict in favor of the plaintiff in the amount of $10,500. Plaintiff then filed a motion for a new trial, alleging that the amount of damages awarded was less than the proven special damages and that the judgment did not include any damages for pain and suffering. The new trial motion was denied by the trial court on April 24, 1979.

The sole issue for our consideration on this appeal is whether the trial court erred in denying the motion for new trial on the ground of inadequacy of the damages. We hold that it did.

The evidence clearly indicates that plaintiff suffered four rib fractures of the left chest and a dislocated collarbone due to the November 28, 1977 accident. These injuries incapacitated Mr. Bibb for at least one month. In early January of 1978, plaintiff attempted to return to his job but was unable to perform his duties as a heavy truck driver due to pain in his chest and abdomen. A chest X-ray revealed that plaintiff’s fractured ribs had not completely healed, and he was subsequently put in a rib brace to relieve his pain. On March 8, 1978, Mr. Bibb’s physician discovered that an incisional hernia, which had previously been repaired in 1974, had recurred. Two operations were required to correct. that condition, one on March 13, 1978, and'the other on April 28, 1978. In September of 1978, plaintiff complained to his Decatur physician of pain in the area of the collarbone which had been injured in the accident, and on September 26, 1978, Dr. Hobbs of Birmingham performed an operation to put the collarbone back into its normal position. In the course of that operation a pin was inserted from Mr. Bibb’s sternum through his collarbone to hold the collarbone in place. The pin was surgically removed on December 18, 1978.

As we have mentioned, it is clear from the evidence that Mr. Bibb’s broken ribs and dislocated collarbone were caused by the accident. However, the medical testimony at trial was to the effect that the causal connection between the abdominal trauma sustained by plaintiff in the accident and the recurrence of the incisional hernia is, at most, quite tenuous. As a result, the jury was entitled to disregard the physical and financial consequences of the hernia in determining the damages to be awarded. Our review of the award in this case is likewise confined to a consideration of the damages that resulted solely from the orthopedic injuries to Mr. Bibb’s collarbone and ribs.

It is undisputed that the medical expenses incurred by plaintiff which were unrelated to treatment of the hernia totalled $4,859. Plaintiff was also unable to work for some time solely because of his orthopedic injuries. At the least, it is apparent that plaintiff was disabled for four months due to the injuries to his ribs and collarbone — the month immediately after the accident and the twelve-week period during which time the surgical pin was in plaintiff’s shoulder. Mr. Darwin, Bibb’s supervisor at work, testified that Bibb’s average gross weekly earnings for the sixteen weeks that he did work during the 58-week interval between the time of the accident and the time of trial amounted to $430.00 per week. This uncontradicted evidence, when it is considered along with the undisputed evidence that plaintiff was-unable to work for at least four months because of his orthopedic injuries, inevitably must lead to the conclusion that plaintiff lost earnings in the amount of $6880 at a minimum due to the orthopedic injuries alone. The total of the lost earnings and the medical expenses unrelated to the hernia is $11,739, which is approximately $1200, more than the jury awarded plaintiff.

Until recently, the rule concerning the weight to be accorded uncontradicted opinion evidence of the value of time lost by the plaintiff was that such evidence was not binding on the jury. See, e. g., Summerlin v. Robinson, 42 Ala.App. 116, 154 So.2d 685 (1965). Instead, the jury was at liberty to return a verdict in a lesser amount if the jurors’ own knowledge and experience in determining values led them to such a result. See O’Neill v. City of Birmingham, 221 Ala. 580, 130 So. 87 (1930). Our recent cases, however, reflect a change in this Court’s assessment of the proper effect of uncontradicted opinion evidence of value.

In Farmers and Ginners Cotton Oil Co. v. Reliance Insurance Co., Ala., 341 So.2d 147 (1976), the only direct testimony concerning the value of certain property destroyed by fire was that of two expert witnesses. The minimum estimate of the aggregate value of the lost property was $43,000; the jury returned a verdict of $9,000. This Court held that a new trial should have been granted because the jury’s verdict was not supported by any evidence and could not be justified upon any reasonable hypothesis presented by the evidence. See Donavan v. Fandrich, 265 Ala. 439, 92 So.2d 1 (1957).

Of like effect is Stone v. Echols, Ala., 351 So.2d 902 (1977). In Stone, the plaintiff’s automobile was damaged in an accident. At trial, he testified that the car was worth $4,500.00 before the accident and that “[i]t wasn’t worth a dime” afterwards. Plaintiff’s testimony was the only evidence of the value of the vehicle, but the jury nonetheless awarded plaintiff damages of only $4,000.00. Relying on Farmers and Ginners Cotton Oil, this Court ruled that plaintiff’s motion for a new trial should have been granted:

Stone’s testimony is the only evidence of the value of the car and his testimony was uncontradicted. The jury’s verdict of $4,000.00 in light of uncontradicted testimony that the car was worth $4,500.00 is unsupported by the evidence and must be set aside. . . . [Emphasis added.] [351 So.2d at 904.]

We perceive no substantive difference between the Stone case , and this case. Here, the only evidence of the value of plaintiff’s time was the uncontradicted testimony of Mr. Darwin that plaintiff earned $430.00 per week. At that rate, over a four-month period plaintiff would have earned $6,880. When this figure is added to the undisputed amount of medical expenses unrelated to the hernia, the total is an amount greater than the jury’s verdict. Plaintiff’s special damages could be no less than $11,739.00 (the sum of his medical bills and lost wages). The $10,500.00 verdict clearly does not compensate for the aggregate pecuniary damage shown, nor does it allow for the proven physical pain and mental suffering undergone by plaintiff as the result of his serious and extensive injuries. Because the verdict fails to give “substantial compensation for substantial injuries” (Walker v. Henderson, 275 Ala. 541, 156 So.2d 633 (1963)), the trial court’s order denying the plaintiff’s motion for a new trial must be reversed and the cause remanded.

REVERSED AND REMANDED.

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


text:
    Cliff TAYLOR v. Robin E. MORGAN and wife, June C. Morgan.
    78-581.
    Supreme Court of Alabama.
    Jan. 25, 1980.

      George L. Stevens, Jr., Anniston, and Dudley Cole Reynolds, Birmingham, for appellant.
    John C. Dowling, of Dowling & Carmichael, Enterprise, for appellees.
   BEATTY, Justice.

The defendant placed a lien upon the plaintiffs’ land. The plaintiffs brought this action to have the lien declared void. The trial court did so and the defendant appealed. We affirm.

The plaintiffs, Robin and June Morgan, were the owners of certain lots in a subdivision in the City of Enterprise. In July, 1977 they contracted with another party for labor and materials to be provided upon these lots. That agreement was assigned by the other party to this defendant, Cliff Taylor, d/b/a Enterprise Asphalt Company, who provided the labor and materials which consisted of land clearing, road construction, sewer and water connections, and the like. Following the completion of this work the plaintiffs conveyed twenty-four of these lots to others. Then on April 14, 1978, the defendant Taylor filed a lien on these lots in the probate court of Coffee County, Enterprise Division, alleging an indebtedness of $84,000.00 due him for work performed. On April 28, 1978 the plaintiffs, the Morgans, filed this action for a declaratory judgment to have the lien voided, alleging that: (1) before the lien was filed they had transferred title to much of the property to third parties for value without notice of any liens; (2) that at a time subsequent to those transfers the defendant had claimed certain money for work performed, and that an actual controversy existed between them concerning any sum owed; (3) that the lien was filed against the property on April 14, 1978; (4) that at the time the complaint was filed no bill had been presented by the defendant, but that the lien was filed to maliciously harass the plaintiffs and to place them “in a bad light” with the third party purchasers.

In an answer filed on May 18, 1978 the defendant contravened the plaintiffs’ material allegations and maintained entitlement to the lien.

On May 2, 1978 the trial court set the case down for hearing to be held on May 23, 1978. Then on May 16, 1978 the defendant filed a motion to produce directed to copies of checks, invoices, etc. used by the plaintiffs to pay for the work in question. On that same day the defendant filed a motion for an order shortening the time for the plaintiffs to comply with the defendant’s motion to produce. The trial court granted the defendant’s motion, requiring production by the plaintiffs on or before May 26, 1978. On May 23, 1978, the trial court apparently continued the hearing to allow the parties to complete discovery, even though plaintiffs apparently complied with the defendant’s motion on May 23. On May 31, 1978 the plaintiffs filed their motion to produce requesting from the defendant information similar to that requested by the defendant.

From what has been furnished us, by record, through affidavits, and the court clerk’s action sheet, it is apparent that the case was continued by the trial court until all discovery was completed. Even so, on August 25, 1978 the defendant’s lawyer was allowed to withdraw as counsel. Then on November 14, 1978 the plaintiffs sought an order requiring the defendant’s compliance with the earlier motion to produce of May 31, 1978. The defendant was given ten days within which to comply. No response was made by the defendant, and so the plaintiffs moved for an immediate order setting the cause for hearing. That motion and the trial court’s order in response thereto were dated December 7, 1978 and marked filed on December 11, 1978. In that order the trial court set the cause down for hearing on December 13, 1978. There is in the record the affidavit of the deputy court clerk stating that on December 7, 1978 the circuit court set the hearing date for the 13th day of December, 1978, and that specified notices were sent to this defendant at his last known Alabama address as well as his Georgia address which was 2452 Wise Street, Columbus, Georgia with postage prepaid. The deponent did not give the date on which these notices were mailed.

When the case was called for hearing on December 13, 1978 the defendant failed to appear either in person or by attorney, whereupon the trial court granted the plaintiffs’ relief by declaring the lien void. The defendant’s motion for a new trial was denied.

The defendant’s contention on appeal is that the judgment must be reversed because neither he nor his representative received actual notice that the case had been set for trial on December 13, 1978. He maintains that his second attorney (in Montgomery) employed after the withdrawal of his first attorney (in Enterprise) likewise received no notice of the December 13, 1978 setting of the case. On that point, however, the deputy clerk’s affidavit explains that no notice was sent to the Montgomery lawyer because the record of the case at that time in no way reflected that the Montgomery lawyer had any interest in the case. That lawyer’s firm was employed to file suit for the defendant to collect the alleged sums owed to him by the plaintiffs and because the defendant represented that he was a resident of Georgia, the action was filed in the United States District Court for the Middle District of Alabama (Southern Division). A copy of that other suit was furnished to the plaintiffs’ lawyer, and the Montgomery lawyer maintains that plaintiffs’ lawyer “knew that our office was of counsel to Mr. Taylor in his claim for money owed from work on the Forest Park Subdivision.” Inferentially he argues, therefore, that somehow such knowledge required notices of the December hearing to be sent to his office. Indeed, the record also contains a copy of a letter, dated October 9, 1978, from the Montgomery lawyer to the plaintiffs’ lawyer advising of the federal suit for the money allegedly due. However, neither this letter nor the affidavit of the Montgomery lawyer contains any reference to information contained in the court file which would have disclosed a need for notice of a hearing in this declaratory judgment action to be sent to anyone other than the defendant himself. It may be that counsel for these plaintiffs was aware that the Montgomery lawyer represented the defendant in this cause “because of extensive contacts in that (the federal) action.” But whatever conduct such knowledge may have encouraged by reason of professional courtesy, nevertheless that knowledge did not place upon plaintiffs’ counsel any legal responsibility to see that official notices be sent by the court either to his opposing counsel or his client’s opponent.

No issue is made with regard to the defendant’s initial notice of this lawsuit itself. In fact, he responded, requested discovery, and asked for continuances on two separate occasions. Although he contends that he is a resident of Georgia, and lived in Enterprise, Alabama only while working on the subdivision job, apparently he had no difficulty in receiving earlier notices mailed to his Enterprise address. The notice in question was mailed to that address and a Columbus, Georgia address, in an effort to assure his awareness and provide an opportunity to be present.

But the defendant contends that the trial court’s resetting of the case violated Rule 40, ARCP which requires a. twenty day interlude between the date of setting and trial. We answered this contention in Knight v. Davis, Ala., 356 So.2d 156 (1978). That provision applies only to initial settings or resettings to future trial dockets, and not to continuances from time to time as was done here. Moreover, litigants are required to keep track of their cases, and, generally speaking, courts owe no duty to notify parties of settings or to continue cases because of a litigant’s absence. Thompson v. Odom, 279 Ala. 211, 184 So.2d 120 (1966); Old Southern Life Ins. Co. v. Free, 46 Ala.App. 622, 247 So.2d 379 (1971). Here the defendant had requested discovery of. the plaintiffs and had obtained it. The plaintiffs, on the other hand, had earlier requested discovery of the defendant and had not obtained it, with the defendant having been granted continuances on his own motion. Following the withdrawal of his first lawyer, defendant maintains that he retained a second lawyer, on September 5,1978, more than three months prior to the last motion for a hearing and the order thereon, dated December 7, 1978 and the hearing on December 13, 1978. Yet in that interval the court was not informed of his retention so that any notices could be sent to him. From those facts we cannot state that the trial court’s action, under the plaintiffs’ prayer for general relief, was improper. Rule 37(b), ARCP. Accordingly, his order must be, and is, affirmed.

AFFIRMED.

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


text:
    Karl Lee HESS v. Mac Sim BUTLER, as Sheriff, etc.
    78-712.
    Supreme Court of Alabama.
    Jan. 25, 1980.

      Benjamin E. Pool, Montgomery, for appellant.
    John C. Bell, Asst. Dist. Atty., for appel-lee.
   BEATTY, Justice.

Petitioner appeals from the trial court’s refusal to grant his petition for a writ of mandamus to compel the respondent sheriff to issue him a license to carry a pistol. We affirm.

Petitioner, Karl Lee Hess, applied for a license to carry a pistol in Montgomery County on May 28, 1979. The respondent, Sheriff Mac Sim Butler of Montgomery County, refused to issue the license, allegedly because petitioner had several times been arrested for and convicted of violations of the state obscenity laws. See 1978 Ala. Acts, No. 678 (now codified at Code of 1975, §§ 13A-12-130 et seq.). It is uncontrovert-ed that Hess has been convicted of violating various obscenity laws in several different locations, both in Alabama and elsewhere; Hess testified, however, that he has never been convicted of a felony or a “crime of violence” [see Code 1975, § 13-6-150(2)]. He also stated at trial that he is neither a drug addict nor an habitual drunkard [see Code of 1975, § 13-6-152(b)]. Finally, Hess maintained that he had been accepted for a job as a security guard contingent upon his obtaining a pistol permit. At the conclusion of petitioner’s testimony, the trial court denied the relief sought.

The only issue for our determination is whether the trial court erred in failing to require the respondent to issue the license. Petitioner alleges that Sheriff Butler’s refusal to grant his request for the license was an abuse of discretion under Code of 1975, § 13-6-155 and that, accordingly, the trial court’s denial of mandamus was improper. We disagree.

It is axiomatic that mandamus is a drastic and extraordinary writ reserved for genuinely extraordinary cases. See, e. g., Folmar v. Brantley, 238 Ala. 681, 193 So. 122 (1939). Mandamus should be granted only where there is a clear legal right in the petitioner to the order sought and a refusal by the respondent to perform an imperative duty. Martin v. Loeb and Co., Inc., Ala., 349 So.2d 9 (1977). A writ of mandamus “does not lie to compel an officer to issue a license where the performance of that duty rests upon an ascertainment of facts or the existence of conditions, to be determined by such officer, in his judgment or discretion.” Barnes v. State ex rel. Ferguson, 274 Ala. 705, 151 So.2d 619 (1963). Only if the licensing officer’s judgment or discretion is abused and exercised in an arbitrary and capricious manner will mandamus lie. See Ex parte Morrow, 259 Ala. 250, 66 So.2d 130 (1953).

Code of 1975, § 13-6-155, the statute governing the issuance of licenses to carry a pistol, provides:

The sheriff of a county may, upon the application of any person residing in that county, issue a qualified or unlimited license to such person to carry a pistol in a vehicle or concealed on or about his person within this state for not more than one year from date of issue, if it appears that the applicant has good reason to fear injury to his person or property or has any other proper reason for carrying a pistol, and that he is a suitable person to be so licensed. The license shall be in triplicate, in form to be prescribed by the secretary of state, and shall bear the name, address, description and signature of the licensee and the reason given for desiring a license. The original thereof shall be delivered to the licensee, the duplicate shall, within seven days, be sent by registered or certified mail to the director of public safety and the triplicate shall be preserved for six years by the authority issuing the same. The fee for issuing such license shall be $1.00 which shall be paid into the county treasury. The sheriff may revoke a license upon proof that the licensee is not a proper person to be licensed.

The statute obviously accords to the sheriff some measure of discretion in determining whether the applicant for a license to carry a pistol “is a suitable person to be so licensed.” On this record we are unable to say that the respondent abused his discretion or that the refusal to grant petitioner a license to carry a pistol was arbitrary or capricious in light of the undisputed evidence that the petitioner has been repeatedly convicted of violating the criminal laws of this state. As a result, the trial court’s denial of the writ must be, and is, affirmed.

AFFIRMED.

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


author: SHORES, Justice.

text:
    Michael W. TIGHE, as Administrator of the Estate of Roy O. Darby, Sr. v. Carl BAGWELL.
    79-14.
    Supreme Court of Alabama.
    Jan. 25, 1980.
    J. A. Hornsby, Gadsden, for appellant.
    T. J. Carnes of Carnes & Carnes, Albert-ville, for appellee.
   SHORES, Justice.

R. 0. Darby, Sr., was a resident of South Carolina and died February 28, 1978, and his will was admitted to probate in South Carolina on March 1, 1978.

Bagwell, acting as a creditor under authority of Code 1975, § 43-2 — 42, secured his appointment in Marshall County, Alabama, as Administrator with Will Annexed on January 23, 1979.

On February 26, 1979, Tighe, the Executor appointed in South Carolina, secured to himself Ancillary Letters Testamentary in Jefferson County, Alabama.

Bagwell removed the Marshall County administration to the Circuit Court of Marshall County on April 18, 1979.

Bagwell filed motion asking that Tighe be ordered to cease and desist from administration of the estate of Darby in Probate Court of Jefferson County, Alabama.

Tighe filed petition asking that the administration begun by Bagwell be dismissed and also an answer admitting all allegations of Bagwell’s petition except paragraph 3, which was an averment of the applicable law.

Bagwell filed a motion for judgment on the pleadings and gave notice to Tighe that the motion would be called to the attention of the Court on August 6, 1979.

On August 3, 1979, Tighe filed a motion that Bagwell’s motion for judgment on the pleadings be set for a hearing.

On August 9, 1979, the Court gave Tighe’s attorney to August 17, 1979, to file the authorities on which he relied for his contention that Bagwell’s motion should not be granted.

Relying on Code 1975, § 43-2-48, the Court, on August 16, 1979, entered an order restraining Tighe from proceeding with the administration of Darby’s estate in Jefferson County.

Tighe appealed from this order. We affirm.

The only issue presented is one of law and is controlled by the express provisions of Code 1975, § 43-2-48:

“Letters testamentary or of administration and letters to a special administrator or to any general administrator, sheriff or coroner, granted by any court having jurisdiction, are conclusive evidence of the authority of the person to whom the same are granted, from the date thereof until the same are revoked; and, when granted, such letters exclude the probate court of every other county from the jurisdiction thereof and extend to all the property of the deceased in the state. (Code 1852, § 1693; Code 1867, § 2014; Code 1876, § 2376; Code 1886, § 2034; Code 1896, § 77; Code 1907, § 2530; Code 1923, § 5752; Code 1940, T. 61, § 87.)”

Under this statute, Marshall County’s jurisdiction, which attached first, is exclusive.

The judgment appealed from is affirmed.

AFFIRMED.

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


text:
    Ex parte the TRAVELERS INSURANCE COMPANY. In re Mary E. SCOTT, the Mother of Timothy Wayne Scott, Deceased v. The TRAVELERS INSURANCE COMPANY v. Michael Ray RIDDLE and Bruce Treece.
    79-24.
    Supreme Court of Alabama.
    Jan. 25, 1980.

      Michael B. Maddox of Guin, Bouldin, Porch, Maddox & Alexander/Russellville, for petitioner.
    W. H. Rogers, Moulton, for respondent Mary E. Scott.
    Billy C. Burney, Moulton, pro se.
    John S. Key, Decatur, for respondent Bruce Treece.
   JONES, Justice.

This is a Petition for Writ of Mandamus compelling the Lawrence County Circuit Court to allow The Travelers Insurance to intervene in a pending wrongful death action to protect its interest as subrogee in an uninsured motorist context. On preliminary review, we required an answer by Respondents because, at first blush, it appeared that the Circuit Court had denied Petitioner’s motion to intervene in a routine uninsured motorjst case in which the insurer paid maximum uninsured benefits ($10,-000) upon condition that it be reimbursed from any recovery by the insured from the uninsured tortfeasor.

Upon receipt of Respondent’s answers and briefs of the parties, however, we find a somewhat different state of facts. The official accident report discloses a one-car accident in which a passenger, Timothy Wayne Scott (a minor), was killed. The driver Riddle was uninsured but the deceased passenger was insured for uninsured motorist coverage by Travelers. The deceased’s mother (Mary E. Scott) and her lawyer learned from witnesses to the accident that another vehicle operated by Bruce Treece may have caused, or may have contributed in causing, the accident. This latter fact (along with the fact that Treece’s insured status was unknown) was disclosed to Travelers during its settlement negotiations with Mrs. Scott’s lawyer.

When settlement negotiations broke down, Mrs. Scott filed a wrongful death action on August 22, 1978, against Riddle, Treece, and Travelers. On September 18, Travelers offered Mrs. Scott full benefits of $10,000 on condition that she dismiss Travelers as a party defendant and that she agree to reimburse the insurer to the extent of such payment from any recovery from the uninsured motorist.

On September 22, 1978, Mrs. Scott executed a “Trust Agreement-Guardian” form furnished by Travelers, which reads in pertinent part:

“[T]hat I, Mary E. Scott as guardian of Timothy W. Scott, a minor, . . .acknowledge receipt of the sum of ten thousand dollars . . . paid by The Travelers ... in full settlement of all claims for . death, sustained by Timothy W. Scott . for which I claim the . . . operator of an uninsured automobile, bearing License Number ANG32639 (AL), is legally liable.
“FURTHER, I agree ... to take . such action as may be necessary to recover from the . operator ... of such uninsured automobile, the damages resulting from such . . . death; and [I] further agree to hold any monies received as the result of settlement or judgment in trust for the Company, to be paid to the Company immediately upon the same coming into my hands; provided, however, that any sum received in excess of the amount paid by the Company shall be retained by me as guardian.”

Thereupon, in keeping with a verbal understanding between contracting parties, Mrs. Scott also dismissed Travelers as a party Defendant in the pending action without Travelers’ having made an appearance therein.

On July 11, 1979, Travelers filed its motion to intervene as a party Plaintiff (followed by its “Intervenor Complaint”) in the wrongful death action then pending against Riddle and Treece. Travelers’ motion alleges, inter alia, that it “has now been informed and believes that one of the above-named Defendants, namely, Bruce Treece, is covered by automobile liability insurance and if a judgment in this action should be rendered against him, the Travelers Insurance Company is entitled to recover the sum of Ten Thousand ($10,000.00) Dollars from Mary E. Scott for money paid and received in good faith but by mistake, and is further entitled to intervene herein in order to assert said claim against the said Mary E. Scott.”

The effect of the trial Court’s order is to grant the motion as to the defendant Riddle and to deny the motion as to the Defendant Treece. We hold the action of the trial Court proper and correct; thus, the Petition for Writ of Mandamus is denied.

The only ground asserted on behalf of Travelers’ motion to intervene as to the Defendant Treece is “mistake.” By the assertion of this ground, Petitioner is saying that had it known, at the time of its payment to Mrs. Scott, that Treece was insured, it would have 1) made such payment on other and different conditions or 2) declined to make any payments under the uninsured motorist provisions of its policy insuring Mrs. Scott’s deceased minor son.

It is undisputed that Travelers prepared the “Trust Agreement” which Mrs. Scott executed and which obligated her to reimburse Travelers from any recovery from only the uninsured motorist Riddle (whose vehicle was specifically described by its license number). Moreover, both its preparation and execution came at a time when Travelers knew, or should have known, every fact known to Mrs. Scott and her lawyer related to the insured status of Treece. Indeed, Travelers makes no claim of misrepresentation of fact, or suppression of fact, in this regard.

We hold, therefore, because of Petitioner’s voluntary election, as set out above, it fails to demonstrate that it is entitled to a clear right of relief. Martin v. Loeb & Co., Inc., 349 So.2d 9 (Ala.1977). (For an excellent treatise on legal mistake, with citation of authorities, see Dobbs, Handbook on the Law of Remedies, § 11.2 at 718ff. (1973).)

WRIT DENIED.

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


author: TORBERT, Chief Justice.

text:
    CITY OF BIRMINGHAM v. Bessie WRIGHT
    78-609.
    Supreme Court of Alabama.
    Feb. 1, 1980.

      Milford G. Bass, Jr., of King, Bass & King, Birmingham, for appellant.
    Shay Samples, J. E. Sawyer, Jr., of Ba-chus, Crowson, Harris and Sawyer and Hogan, Smith & Alspaugh, Birmingham, for appellee.
   TORBERT, Chief Justice.

This appeal is from the judgment entered on the jury verdict of $20,000 in favor of Bessie Wright, and against the City of Birmingham for negligent maintenance of a sidewalk in violation of Code 1975, § 11 — 47-190. The incident which gave rise to the suit below was the fact that Mrs. Wright fell, sustaining a broken wrist and other injuries, when she stepped into a lowered area near the corner of 19th Street and 2nd Avenue North, where the sidewalk had been removed to plant trees as a part of the “Birmingham Green” project.

The City assigns as error the following:

1. That the trial court erred in refusing to grant the City’s motion for a directed verdict based on the City’s contention that the plaintiff failed to prove one of the essential elements of her prima facie case, i. e., notice to the City of the defect in the sidewalk.

2. That the trial court erred in failing to give the City’s requested jury instructions 27.05 and 27.06 from the Alabama Pattern Jury Instructions.

3. That the verdict of the jury was based on speculation as to proximate cause and the nature and extent of plaintiff’s injuries.

The law of this state is well settled, that when a directed verdict is requested the entire evidence must be viewed in a light most favorable to the party opposing the motion; and that when a reasonable inference may be drawn which is adverse to the parties requesting the directed verdict, the directed verdict is properly refused. Kilcrease v. Harris, 288 Ala. 245, 259 So.2d 797 (1972).

Thus, the question determinative of the first issue raised by the appellant is: Whether the record viewed in a light most favorable to appellee contains a scintilla of evidence that the City had notice of the defect in the sidewalk. If such a scintilla is present, then the trial court properly submitted the question to the jury .for resolution.

Mr. Jerry Adcox, Assistant Superintendent of the Street and Sanitation Department for the City of Birmingham, testified as follows:

Q. You all knew that people had fallen and gotten hurt at that same exact spot before Mrs. Wright fell and got hurt, didn’t you?
A. Yes, sir.

Interrogatories to the City of Birmingham which were admitted into evidence contain the following:

QUESTION: Please state whether the defendant had received within five years immediately preceding the period following the alleged occurrence any complaints of any injury or circumstances or occurrences similar to those experienced by the plaintiff as alleged.
ANSWER: Yes.
QUESTION: State the first time, specific date when you first had knowledge or notice of a defect or dangerous condition of the sidewalk described above, and under that state in complete detail the nature and extent of the surrounding circumstances bringing the fact to your attention, including the names and addresses of the persons doing so?
ANSWER: On December 6, 1974, a claim was filed by Mrs. Nell Stamps. 2505 20 — First Street West, Birmingham, with regard to a fall on this question.

We hold that the above testimony and interrogatories provide a scintilla of evidence that the City knew of the defect in the sidewalk and thus the trial court’s decision to submit this issue to the jury was not error.

Secondly, appellant asserts as error the failure to give Alabama Pattern Jury Instructions 27.05 and 27.06. Appellant insists that this error was preserved for our review when it orally excepted to the failure to give Alabama Pattern Jury Instructions 27.05 and 27.06 at the close of the trial court’s charge. We disagree. It is not necessary for us to determine whether the substance of 27.05 and 27.06 was covered by the trial court’s oral instruction on contributory negligence because the law of this state requires that an objection to the failure to charge on a particular subject (forgetfulness and assumption of the risk in the instant case) must be by way of a requested written charge.

At the close of the evidence or at such earlier time during the trial as the court reasonably directs, any party may file and, in such event, shall serve on all opposing parties written requests that the court instruct the jury on the law as set forth in the requests. The court shall inform counsel of its proposed action upon the requests prior to their arguments to the jury, but the court shall instruct the jury after the arguments are completed. The judge shall write “given” or “refused” as the case may be, on the request which thereby becomes a part of the record. Those requests marked “given” shall be read to the jury without reference as to which party filed the request. Neither the pleadings nor “given” written instructions shall go into the jury room. Every oral charge shall be taken down by the court reporter as it is delivered to the jury. The refusal of a requested, written instruction, although a correct statement of the law, shall not be cause for reversal on appeal if it appears that the same rule of law was substantially and fairly given to the jury in the court’s oral charge or in charges given at tlie request of the parties. No party may assign as error the giving or failing to give a written instruction, or the giving of an erroneous, misleading, incomplete, or otherwise improper oral charge unless he objects thereto before the jury retires to consider its verdict, stating the matter to which he objects and the grounds of his objection. Submission of additional explanatory instructions shall not be required unless requested by the court. Opportunity shall be given to make the objection out of the hearing of the jury. In charging the jury, the judge shall not express his opinion of the evidence.

Rule 51, ARCP (emphasis added).

See also related holding in field of criminal law of the Court of Criminal Appeals. Smith v. State, 53 Ala.App. 657, 303 So.2d 157 (1974).

Rule 51 also requires that an objection to the court’s charge must state the grounds therefor. Feazell v. Campbell, 358 So.2d 1017 (Ala.1978); Odom v. Linsey, 365 So.2d 664 (Ala.1978). In the instant case, Alabama Pattern Jury Instructions 27.05 and 27.06 were orally requested; and the objection to the court’s charge on contributory negligence failed to state the grounds therefor. Thus, whatever error the court may have committed in refusing the requested charges was not properly preserved for our review.

Finally the appellant contends that the verdict of the jury was speculative. Assessment of damages is the province of the jury and its decision will not be disturbed unless the amount is so excessive or inadequate as to indicate prejudice, passion, partiality, corruption or mistake. Brandwein v. Elliston, 268 Ala. 598, 109 So.2d 687 (1959); Watts v. Pettway, 49 Ala.App. 324, 272 So.2d 251 (1972); Deramus v. Alabama Power Co., 48 Ala.App. 430, 265 So.2d 609 (1972); Mack v. Garrison, 51 Ala.App. 453, 286 So.2d 857 (1973). In light of the extensive medical evidence presented by Mrs. Wright’s physicians and her own testimony in regard to pain and suffering, we cannot say that the jury’s verdict is so excessive or speculative as to indicate passion, prejudice or corruption.

For the foregoing reasons the decision of the trial court is affirmed.

In this case the appellee filed a motion for damages for a frivolous appeal pursuant to Rule 38, ARAP. The granting or denying of such motions is within the sound discretion of the appellate court.

Rule 38 does not establish a standard for what constitutes a frivolous appeal; instead it commits the question to a determination by the appellate court in which the appeal is argued. Rule 38, ARAP, therefore authorizes the imposition of sanctions as a matter of sound judicial discretion vested in the appellate court.

Adams v. Adams, 335 So.2d 174 (Ala.Civ.App.1976). See also: Great Northern Land and Cattle, Inc. v. Firestone Tire and Rubber Co., 337 So.2d 1323 (Ala.Civ.App.1962); and Insurance Co. of North America v. Davis, 274 Ala. 541, 150 So.2d 192 (1962).

We do not believe the imposition of Rule 38, ARAP, sanctions would be appropriate in the instant case and therefore that motion is denied.

AFFIRMED.

MADDOX, JONES, SHORES and BEAT-TY, JJ., concur.


text:
    OPINION OF THE JUSTICES.
    No. 264.
    Supreme Court of Alabama.
    Feb. 28, 1980.
   To the Members of the Senate State Capitol Montgomery, Alabama 36130

Gentlemen:

Senate Bill 55, pending in the Senate, provides:

A BILL TO BE ENTITLED AN ACT
To provide for the rate of excise tax on gasohol as defined by this act; and to further provide that for all other purposes the term gasohol shall be included within the term gasoline as defined by Section 40-17-30 of the Code of Alabama 1975.
BE IT ENACTED BY THE LEGISLATURE OF ALABAMA:
Section 1. “Gasohol” as used in this act shall mean a motor fuel containing a minimum of ten percent blend of ethyl alcohol of a purity of at least ninety-nine percent denatured in conformity with one of the approved methods set forth by the U.S. Department of the Treasury, Division of Alcohol, Tobacco and Firearms and derived from agricultural ór forest products or other renewable resources.
Section 2. Notwithstanding the other provisions of Chapter 17 of Title 40 of the Code of Alabama 1975, the amount of excise tax on gasohol shall be three cents per gallon less than gasoline. For all other purposes other than the amount of excise tax, the term gasohol shall be included within the term gasoline as defined in Section 40-17-30 of the Code of Alabama 1975.
Section 3. The provisions of this act are supplemental and shall not be construed to repeal any law not in direct conflict herewith.
Section 4. The provisions of this act are severable. If any part of this act is declared invalid or unconstitutional, such declaration shall not affect the part which remains.
Section 5. This act shall become effective immediately upon its passage and approval by the Governor, or upon its otherwise becoming a law.

Resolution No. 44, adopted by the Senate on February 21, 1980, is as follows:

BE IT RESOLVED BY THE SENATE OF THE LEGISLATURE OF ALABAMA, That we respectfully request the Honorable Chief Justice and Associate Justices of the Supreme Court or a majority of them, to give this body their written opinions on the following important constitutional question which has arisen concerning the pending bill, S. B. 55, a copy of which is attached to this resolution and made a part hereof by reference:
1. Does Senate Bill 55 of the pending legislative session, which levies an excise tax on the sale of gasohol, conflict with Section 70 of the 1901 Alabama Constitution which section provides in part that “All bills for raising revenue shall originate in the house of representatives.”?
RESOLVED FURTHER, That the Secretary of the Senate is hereby directed to send a sufficient number of true copies of the pending bill, S. B. 55, to the Clerk of the Supreme Court of Alabama, and to transmit this request to the Justices of the Supreme Court forthwith upon adoption of this Resolution.
We answer the question in the affirmative.

Section 70 of the Constitution of 1901 in its entirety is as follows:

All bills for raising revenue shall originate in the house of representatives. The governor, auditor, and attorney-general shall, before each regular session of the legislature, prepare a general revenue bill to be submitted to the legislature, for its information, and the secretary of state shall have printed for the use of the legislature a sufficient number of copies of the bill so prepared, which the governor shall transmit to the house of representatives as soon as organized, to be used or dealt with as that house may elect. The senate may propose amendments to revenue bills. No revenue bill shall be passed during the last five days of the session.

Our cases have consistently made a distinction between “bills for raising revenue” contained in the first sentence of that section and “revenue bill” as used in the last sentence. [In re Opinions of the Justices, 232 Ala. 60, 166 So. 710 (1936), citing Southern Ry. v. Mitchell, 139 Ala. 629, 37 So. 85 (1904); In re Opinions of the Justices, 223 Ala. 369, 136 So. 589 (1931); State ex rel. Ward v. Henry, 224 Ala. 224, 139 So. 278 (1931); State ex rel. Franklin County v. Hester, 224 Ala. 460, 140 So. 744 (1932); Woco Pep Co. v. Butler, 225 Ala. 256, 142 So. 509 (1932); Harris v. State ex rel. Williams, 228 Ala. 100, 151 So. 858 (1933).]

Clearly the act sought to be amended by the proposed bill is an act “raising revenue.” In Opinion of the Justices, 249 Ala. 389, 31 So.2d 558, the following appears:

We have heretofore expressed the opinion that an act to amend an existing act whose purpose is to raise revenue by which the amount to be collected under the latter act as amended is decreased or increased, is an act to raise revenue and by the terms of section 70 must originate in the House of Representatives. In re Opinion of the Justices, 238 Ala. 289, 190 So. 284; id. 232 Ala. 95, 166 So. 807; Perry County v. Selma, Marion and Memphis R. Co., 58 Ala. 546.
If the proposed act affects the amount of revenue which flows into the State treasury, either as an original measure, or as an amendment to one already in existence, it is one to raise revenue as provided in the first part of section 70. A “revenue bill” under the last sentence of section 70 is more restrictive. In re Opinion of the Justices, 223 Ala. 369, 136 So. 589.

We are of the opinion that Senate Bill 55 is an act to raise revenue and, therefore, must, under the terms of the Constitution, originate in the House of Representatives.

Respectfully submitted,

C. C. TORBERT, Chief Justice

HUGH MADDOX

JAMES H. FAULKNER

RENEAU P. ALMON

JANIE L. SHORES

SAM A. BEATTY Associate Justices


author: BRADLEY, Judge.

text:
    Faye HESTER v. Nelson M. HESTER.
    Civ. 1943.
    Court of Civil Appeals of Alabama.
    Nov. 7, 1979.
    Rehearing Denied Dec. 12, 1979.

      Robert Straub, Decatur, C. E. Carmichael, Jr., Tuscumbia, for appellant.
    Bryce U. Graham, Tuscumbia, for appel-lee.
   BRADLEY, Judge.

This is a divorce case. The wife appeals and contends that the trial court erred to reversal in its division of property and award of alimony. We affirm.

The parties to this proceeding were married on December 10, 1950 and the wife filed for divorce on August 16, 1978. There were three children resulting from the marriage, two adopted and one natural child. The adopted children are ages seventeen and fourteen, and the natural child is twelve years old.

The parties owned a seven room, three bedroom home built on one hundred and one acres of land. There was also a farming operation on this land, and the wife participated in the farming operation along with the husband, as well as being a housekeeper. The farming operation consisted primarily of raising chickens* and cattle. The husband estimated that the cattle on the farm at the time of trial were worth between $16,000 and $18,000. The farm equipment consisted of a tractor, plows, a disc, a bushhog, a cattle trailer, and a 1977 pickup truck. The evidence indicated that the farm operation had been a profitable business. The farm had been appraised by the state for tax purposes at $118,000.

The husband was employed by the Ford Motor Company. His earnings for 1977 had been $23,922.52 and $26,786.86 for 1978. He testified that these earnings represented a seven day work week on his part. In 1977 the husband also received income from the farm in the amount of $3,790.13 and in 1978 this rose to $31,995.94. When asked how he would divide the farm property, the husband testified that he would not be opposed to allowing his wife to keep the house if he were permitted to run the farm. The husband stated that this would enable one of the parents to maintain a home for the children.

The wife is forty-six years old, has no separate estate of her own, and is able to work and is seeking employment. She has worked at a number of jobs in the past, including secretary-bookkeeper in a parts department and on a motor vehicle assembly line. She testified that she had given her husband some assistance in building their home and had also helped in raising the cattle and chickens.

The wife also testified that she did not want to share title to the farm with the husband, but that she wanted her award from the settlement free and clear of any claim of the husband. She stated that she would be unable to run the farm on her own.

The trial judge, after orally hearing the evidence, awarded the husband the house and farm operation, including the farm equipment and livestock, two of the three automobiles owned by the parties, and $4,900 in cash from various bank accounts. In addition, the husband was required to pay a $2,000 debt owed to the Tex-Gas Corporation.

The wife received one automobile, $1,550 in cash, $1,000 worth of stock or bonds in the Russellville Stock Barn, and diamond rings valued at about $10,000. She also received $55,000 for her half of the farm property.

The trial court awarded the wife custody of the youngest child of the parties and ordered the husband to pay child support in the amount of $275.00 per month. The husband was given custody of the other minor child. The trial feourt also required the husband to pay the wife periodic alimony in the amount of $300 a month for a period of one year or until she obtained employment, whichever occurred first.

To begin, we would say that where a court in a divorce case hears evidence ore tenus, its judgment will be presumed correct and will not be overturned except for palpable abuse of discretion. Lassitter v. Lassitter, Ala.Civ.App., 371 So.2d 918 (1979).

We would further point out that the division of an estate accumulated by the parties during their marriage is not required to be divided equally upon divorce, but is to be divided equitably. Helms v. Helms, 50 Ala.App. 453, 280 So.2d 159 (1973).

The wife’s testimony indicated that she was desirous of a settlement which would allow her an award free and clear of any claim of the husband. The trial court agreed to her request and ordered the husband to pay the wife $55,000 for her half of the farm property. Even if this was not an equal division of the property, we cannot say that the trial court abused its discretion in this award.

The wife also contends that the trial court abused its discretion in limiting alimony to $300.00 per month for not more than one year and in limiting child support to $275.00 per month. As to the amount of child support, we find no abuse of discretion by the trial court. The child is twelve years old and apparently in good health without any unusual problems.

In determining what is a proper award of alimony, factors to consider include future prospects of the parties, their ages, health, station in life, how long they were married, and, in appropriate cases, the conduct of the parties with reference to the cause of the divorce. Shirley v. Shirley, Ala.Civ.App., 350 So.2d 1041 (1977).

The parties were married for twenty-eight years; the wife performed normal household duties during this time, aided the husband in building the house and tending to the farm chores. The wife is in her mid-forties and in the past has worked at various jobs. She stated that she was able to work and wanted to work, and her experience apparently qualifies her for several different types of employment.

The husband is employed at Ford Motor Company where his earnings for 1978 were approximately $27,000. Yet the trial court awarded the wife periodic alimony of $300 per month only for a period of one year. Thus it is suggested by appellant that the trial court erred in requiring the periodic alimony to be terminated at the end of one year, especially where it appears that the appellee is able to maintain such payments indefinitely.

Notwithstanding the appellee’s ability to pay periodic alimony of $300 indefinitely, the appellant testified that she was able to work, wanted to work, and had placed applications for employment with various employers. Based on this testimony, we cannot say that the trial court erred in requiring the periodic alimony to be terminated within one year. The trial court obviously concluded that one year was a sufficient length of time for appellant to secure employment. Although this court might have decreed differently, we cannot say that the trial court’s award in this respect is plainly and palpably erroneous.

No reversible error having been successfully argued, the judgment of the trial court is affirmed.

AFFIRMED.

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


author: ALMON, Justice.

text:
    Ex parte Faye HESTER. (Re: Faye HESTER v. Nelson M. HESTER).
    79-263.
    Supreme Court of Alabama.
    Feb. 22, 1980.
   ALMON, Justice.

WRIT DENIED.

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


author: WRIGHT, Presiding Judge.

text:
    Brenda Middlebrooks TUBB v. George Russell MIDDLEBROOKS.
    Civ. 1944.
    Court of Civil Appeals of Alabama.
    Nov. 14, 1979.
    Rehearing Denied Dec. 19, 1979.

      George M. Higginbotham, Bessemer, for appellant.
    E. L. Brobston, Bessemer, for appellee.
   WRIGHT, Presiding Judge.

Plaintiff and defendant, formerly wife and husband, were divorced in November 1976. Defendant by agreement was given custody of four minor daughters. Two of the daughters have since married and are no longer dependent. In December 1978 defendant filed a petition to require plaintiff to contribute to the support of the two children remaining at home, alleging change of circumstances since the decree of divorce. The court heard oral testimony and arguments of counsel in April of 1979. Judgment was thereafter entered requiring plaintiff to pay to defendant the sum of $50 every two weeks as support for the two minor children. Plaintiff appeals.

The testimony is summarized as follows: Since the divorce, defendant has had custody of and been the sole support of the minor children. By agreement at the time of divorce, the home and most of the personal property were awarded to defendant. The plaintiff was awarded $4,000 alimony in gross payable if the home was sold or when the youngest child reached the age of eighteen. Defendant is a coal miner. At the time of the divorce, he was making $60 per shift, ordinarily working five shifts per week with some overtime. He is presently working a similar schedule at $70 per shift. The girls remaining at home are ages sixteen and fourteen. There was a period of several months in 1977-78 when defendant was on strike and was unable to meet his obligations. He incurred some debts which he is now paying monthly in addition to living expenses. He earned some money during the strike at other jobs.

Plaintiff was working at the time of the divorce. For seventeen months prior to March 1979, plaintiff was employed earning approximately $120 net per week. She quit her job about a month before the hearing. She had remarried some two years after the divorce. She stated she had quit her job because she had agreed with her husband that she would as soon as certain obligations were paid. She is now thirty-seven years old, in good health and able to work, but has no present income or estate.

The defendant cited little if any particular needs of the children that he was unable to satisfy. His primary complaint was that he had debts and there were some things the girls could use such as clothes and dental examinations. He was meeting his obligations with some money left over. He often went to a club and gambled small amounts.

Upon completion of the testimony, the record discloses a colloquy between the court and defendant’s counsel concerning the present state of the law as to the respective responsibilities of divorced parents for support of their minor children. There was also discussion of prospective changes in the common law because of recent decisions' which would assess the duty to support minor children to the parents on a neuter gender basis. That is, the mother has an equal duty to that of the father. Thereafter, the court entered judgment finding that there had been a change in circumstances since the divorce in that the income of defendant had decreased, his debts had increased, the children were older, their expenses greater and defendant’s earnings were insufficient to provide them necessary care.

Indulging the required presumption of correctness of the findings of fact of a trial judge who heard the testimony orally, we cannot hold these findings unsupported by the evidence and thus erroneous. Marks v. Marks, 365 So.2d 1231 (Ala.Civ.App.1979). However, the subsequent requirement that the mother contribute $50 every two weeks as partial support of the children cannot stand. We reverse that requirement, not because of the absence of a legal duty upon the mother to contribute to the support of her children, but because of the absence of evidence as to either income or estate from which to pay.

The testimony was that the mother had remarried in September 1978. She continued to work until March 1979 so that she could assist in paying for some furniture for her new marital home. Her testimony that she had agreed with her husband that thereafter she would leave her employment and be a full-time housewife was unchallenged. There was no evidence other than arguendo that she quit her job because of the pending petition to require her to assist in the support of her children. It is the rule that the amount of support a parent may be required to pay is to be determined by the reasonable needs of the child and the reasonable ability of the parent to pay. Travis v. Travis, 345 So.2d 321 (Ala.Civ.App.1977); Metcalf v. Metcalf, 340 So.2d 38 (Ala.Civ.App.1976). It is a useless thing to require payment of a sum as support when the testimony shows no income or assets from which to pay. We do not decide here whether the equity court may order a non-working parent to seek and obtain work in order to pay child support. Particularly, do we not decide whether a married mother may be required to abandon her chosen vocation of a homemaker, perhaps in opposition to the wishes of husband, in order to produce income with which to pay child support. The court did not do that here. We note however, that it is well established that one may not be placed in jail for contempt for failure to pay an order for child support when it is shown he has no means from which to pay. Muery v. Muery, 46 Ala.App. 617, 247 So.2d 123 (1971), cert. denied, 287 Ala. 737, 247 So.2d 128 (1971).

It is for the ordering of support from one who is shown by the evidence to be without means to provide it that we reverse the judgment below. Thus our judgment is based upon state law and we do not decide the charge of violation of the constitutional right of the defendant to equal protection of the laws, presented by defendant in the court below.

There was discussion by the court in its colloquy with counsel of the possible effect of the decision of the Supreme Court of the United States in the case of Orr v. Orr, 440 U.S. 268, 99 S.Ct. 1102, 59 L.Ed.2d 306 (1979), aff’d on remand, 374 So.2d 895 (Ala.Civ.App.1979), cert. denied, 374 So.2d 898 (Ala.1979), upon the common-law principle that the primary duty of support of minor children is upon the father and that there is no duty upon the mother to furnish support unless it is shown that the father is financially unable to perform. However, it does not appear that the order of the court was based upon constitutional infirmities of that principle. Indeed, the authority to order contribution of the mother to the support of her children has been expressed many times by our appellate courts. Jones v. Jones, 355 So.2d 354 (Ala.1978); Womble v. Womble, 56 Ala.App. 318, 321 So.2d 660 (1975), cert. denied, 295 Ala. 429, 321 So.2d 664 (1975); Thomason v. Thomason, 53 Ala.App. 206, 298 So.2d 627 (1974); Brock v. Brock, 281 Ala. 525, 205 So.2d 903 (1967).

In view of the decisions of our supreme court, the presence in this case of an independent state ground for reversal, and the absence from the judgment of the trial court of a reference to a constitutional ruling, we do not consider the constitutional question of equal protection to be properly before us.

REVERSED AND REMANDED.

BRADLEY and HOLMES, JJ., concur.


author: EMBRY, Justice.

text:
    Ex parte George Russell MIDDLEBROOKS. (In re: Brenda Middlebrooks TUBB v. George Russell MIDDLEBROOKS).
    79-269.
    Supreme Court of Alabama.
    Feb. 22, 1980.
   EMBRY, Justice.

WRIT DENIED.

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


author: TYSON, Judge.

text:
    Aaron Jake PATTON v. STATE.
    6 Div. 955.
    Court of Criminal Appeals of Alabama.
    Dec. 18, 1979.
    Rehearing Denied Jan. 22, 1980.
    William B. Lloyd, Jr., Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen., Sarah Kathryn Farnell, Asst. Atty. Gen., for ap-pellee.
   TYSON, Judge.

Aaron Jake Patton was indicted for the first degree murder of one Jerome Sanders. The jury found the appellant guilty of manslaughter in the first degree and fixed punishment at ten years imprisonment. The trial court overruled the appellant’s motion for new trial, which asserted error by virtue of the trial court’s failure to rule on appellant’s pretrial motion to suppress until time of trial.

The facts in this cause are not in dispute. Aaron Jake Patton was taken into custody by the Birmingham Police Department on February 19,1978, after a shooting incident, which occurred a short distance from the appellant’s home.

The deceased, Jerome Sanders, had made entry into appellant’s home with a pistol and had seized appellant’s wife at pistol point. Sanders then began to back out of the house, holding appellant’s wife while he kept his pistol pointed at her head. Outside the home, Mrs. Patton managed to break away from Sanders, and then Sanders began to flee, running down the sidewalk. Aaron Jake Patton pursued Sanders and shots were exchanged.

One of the State’s witnesses, Charles Carlin, indicated that he saw Patton fire five shots at the deceased, Sanders, as Sanders lay on the ground. This occurred approximately one block from Patton’s home.

I

The sole issue presented for review is the alleged failure of the trial court to rule prior to trial on appellant’s motion to suppress a statement given by Patton to police officers shortly after his arrest. The statement was dated February 20,1978, and was allegedly taken by Birmingham officers at Police Headquarters following Patton’s arrest. A copy of this was made available to defense counsel and a preliminary hearing was conducted in this cause on March 15, 1978. The indictment charging the appellant with the first degree murder of Jerome Sanders was dated April 7,1978. The original motion to suppress appellant’s statement was filed April 24, 1978, and an amended motion was filed on October 23, 1978, before trial. The trial of this cause commenced on November 14, 1978.

We find the following colloquy pertaining to the pretrial motion (R. pp. 2-6):

“MR. WILLIAM LLOYD: May it please the Court, Your Honor, on April 20th, of this year, a motion to suppress was duly and timely filed in this case.
“Following that, on September 23rd — correction, October 23rd, of this year, an Amended Motion to Suppress was further filed in this case. The motion was presented to the presiding judge, who was — not the presiding judge, but the duty judge that week, who happened to be Judge Jasper, and the motion was filed as an Amended Motion to Suppress and Motion for Pretrial Hearing.
“It is the defendant’s position, Your Hon- or, and the basis of this motion, which was overruled by Judge Jasper, that in order to properly prepare for the defense of this case, a pretrial hearing on the Motion to Suppress a statement allegedly made by the defendant was necessary and proper in order to properly represent the defendant. I felt like I needed the time which would be afforded after a ruling on that motion.
“THE COURT: Did you know what was in that motion?
“MR. WILLIAM LLOYD: Yes, sir.
“THE COURT: You had seen the motion. We haven’t got any question of inspection and that sort of thing?
“MR. WILLIAM LLOYD: No, sir. I knew what was in the statement.
“However, there were extraneous matters in the statement that might relate, possibly, to other crimes, or extraneous matters, which, if allowed to remain with the statement, would certainly be prejudicial to my client in the trial of this cause and would directly affect the course of the defense in this case.
“Judge Jasper did overrule the Motion for a Pretrial Hearing, and it is my understanding that the policy of this Court is to hear a Motion to Suppress, itself, at that point in the case in chief in which it arises.
“That being the case, I would like to note an exception to the Honorable Judge Jasper’s ruling preventing us from having a pretrial hearing on this matter, and renew the terms set out in the Motion to Suppress, and ask this court to reconsider that ruling that there could not be a pretrial Motion to Suppress by some dissidents.
“THE COURT: Now, still on the record, of course, you and Mr. Dick, the deputy district attorney, and I conferred just a few minutes ago in the chambers about this matter, and, as I understand it, read' this motion I have before me, and it does pertain to statements.
“During this conference I did ascertain that Mr. Dick does not anticipate offering this statement as such, as a statement, probably will not offer it, and if he should, of course, at that time the Court will go into the question of extraneous matters.
“The Court has instructed Mr. Dick that extraneous matters, wherein the defendant may have been questioned about drug related cases and that sort of thing, would not be admissible and should not be mentioned in the presence of the jury. “The Court understands further that the only possible, or probable, use that would be made of the portions of the statement would be to use on cross-examination for possible impeachment purposes, and there is no way that I know of to just try a case in advance, on pretrial motion, because this type matter that you are addressing this motion to, as I understand it, is one of those that would have to be governed by the circumstances as they arise in the course of the trial.
“So, I do overrule the motion, and I do renew my instructions to both the State and defense that it would be improper to — with any witness, or without a witness — to go into any extraneous matters in such statement.
“As I say, I will have to rule on matters one at a time in this regard as they come up, and that will largely be governed by the manner in which they do come up. “So, I do overrule the motion at this time for a ruling on the pretrial motion, because I wouldn’t know how to rule on it. “MR. WILLIAM LLOYD: Certainly, and we respectfully except to Your Honor’s ruling.
“THE COURT: All right.
“MR. WILLIAM LLOYD: I think that covers it.
“THE COURT: Okay. Let me say this:
“I said that I wouldn’t know how to rule on it. I meant by that that I wouldn’t know how to approach it pretrial, because it may, or may not, ever arise, and I don’t know how it would arise.
“That is what I was trying to say.
“MR. WILLIAM LLOYD: Yes, sir.”

Appellant’s counsel asserts on appeal that the alleged failure to grant his pretrial motion to suppress appellant’s statement had a chilling effect on counsel’s ability to adequately represent the appellant at trial as such “hung like a Damoclean Sword” throughout the trial (Appellant’s Brief, p. 5).

In oral argument in this cause, counsel for the appellant conceded that he received a copy of appellant’s statement “within a few days” of his initial arrest. This was turned over to him by Birmingham officers. Moreover, a preliminary hearing was conducted in this cause before indictment.

As may be seen in examining the above colloquy just before trial, the district attorney indicated to defense counsel that he would not use the statement of appellant at trial, and the trial court admonished both parties with reference to same. It thus appears that it was unnecessary for the trial judge to rule on the motion to suppress since the State’s attorney indicated that it would not be offered at trial.

With reference to defense counsel’s decision as to whether or not he should use the appellant as a witness, such always becomes a matter of trial strategy once, as here, counsel is aware of the various options open to him under the evidence to be presented. Further, counsel had been aware for many months prior to trial of the contents of the statement and the details of the shooting incident. The record in this cause discloses an able and energetic defense of appellant by his attorneys. The cause was fairly tried before an experienced and able judge, and the record in this cause is free of legal error. We see no error in the trial court’s alleged failure to rule on the motion to suppress and to suppress the alleged statement of the appellant when defense counsel was made aware that such would not be offered at trial.

It is our opinion that the entire matter became one of appropriate trial strategy to be developed by defense counsel under the circumstances of this case.

We find no error.

This cause is therefore

AFFIRMED.

All the Judges concur.


author: FAULKNER, Justice.

text:
    Ex parte Aaron Jake PATTON. (Re: Aaron Jake Patton v. State).
    79-331.
    Supreme Court of Alabama.
    Feb. 22, 1980.
   FAULKNER, Justice.

WRIT DENIED.

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