source: Caselaw Access Project

author: BEATTY, Justice.

license: Public Domain

text:
    The AMERICAN ROAD SERVICE COMPANY v. Robert F. INMON.
    79-108.
    Supreme Court of Alabama.
    Dec. 24, 1980.
    Rehearing Denied Feb. 6, 1981.

      Charles Cleveland of Gordon, Cleveland & Gordon, Birmingham, for appellant.
    Leo E. Costello of Costello & Stott, Birmingham, for appellee.
   BEATTY, Justice.

The basic legal question on this appeal is whether this Court recognizes the intentional or reckless tort of outrageous conduct causing severe emotional distress, as proposed by the American Law Institute’s Restatement (Second) of Torts § 46 (1948):

(1) One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress, and if bodily harm to the other results from it, for such bodily harm.

Until now such a cause of action has been neither accepted nor rejected in Alabama. As recently as August 31,1979, in Lavoie v. Aetna Life and Casualty Co., Inc., Ala., 374 So.2d 310 (1979), involving claimed relief for an insurer’s bad faith refusal to pay legitimate policy benefits, we held that the trial court’s grant of a Rule 12(b)(6) motion was inappropriate under the allegations of the complaint, stating at 312:

[I]t is the facts of an actual case which will breathe life into the legal theories now advanced by appellants, and their claims should not be summarily dismissed at the pleading stage....

Unlike Lavoie, the theory of Section 46 now has been given full sway in the trial court: the plaintiff has alleged facts sufficient to invoke that theory, testimony has been taken, the trial court has instructed the jury upon the law of outrageous conduct, and the jury has rendered a verdict in favor of the plaintiff in the amount of twenty-five thousand dollars. From the judgment rendered on that verdict and from the order denying its post-judgment motions, the defendant has appealed.

Admittedly, our recognition of the tort of outrageous conduct, or “severe emotional distress,” would authorize recovery of damages for mental suffering alone (although Section 46 also allows recovery for accompanying bodily harm). Traditionally, damages for mental anguish alone have not been recoverable in this jurisdiction. Western Union Telegraph Co. v. Jackson, 163 Ala. 9, 50 So. 316 (1909). However, if the mental suffering has been accompanied by some physical injury, damages for mental suffering have been allowed. East Ala. Express Co. v. Dupes, 271 Ala. 504, 124 So.2d 809 (1960) (plaintiff who sustained whiplash and fracture allowed to recover for her “worry” about the future result of her injury); Macke v. Sutterer, 224 Ala. 681, 141 So. 651 (1932) (pregnant tenant who was injured from fall from steps allowed to recover from landlord damages for mental anguish (fear) because she was “caused to be in danger of a miscarriage ...”); and see Bryson v. Phelps, 23 Ala. App. 346, 125 So. 795; cert. den. 220 Ala. 389, 125 So. 798 (1930) (physical damage to his automobile allowed the owner to recover damages for his delay, vexation, annoyance and mental anguish).

Other decisions and authorities reveal a remedial situation hypocritical in nature. For example, the passenger of a carrier is allowed to recover for the use of insulting language causing mental suffering because the courts have found an implied promise in fact to provide protection from such abuse. Seaboard Air Line Ry. Co. v. Mobley, 194 Ala. 211, 69 So. 614 (1915) (reversed on other grounds in Tomme v. Pullman Co., 207 Ala. 511, 93 So. 462 (1922)). Likewise it was an easy step to apply the theory of a contractual duty implied by law to make an innkeeper similarly liable. Dixon v. Hotel Tutwiler Operating Co., 214 Ala. 396, 108 So. 26 (1926). Debt collection cases allow recovery when there is a traditional tort, such as slander or a personal trespass, Maze v. Employees’ Loan Soc., 217 Ala. 44, 114 So. 574 (1927); and a trespass quare clau-sum fregit is also sufficient to allow damages for “nervous excitement” when no physical violence was suffered. Engle v. Simmons, 148 Ala. 92, 41 So. 1023 (1906). These decisions feign to insist upon the presence of a tort of long standing when it is perfectly obvious that any injury from the traditional tort is slight and the damages sought for the mental disturbance constitute the primary (if not the sole) reason for having initiated the action. Consider Horne v. Patton, 291 Ala. 701, 287 So.2d 824 (1974) (unauthorized disclosure by physician of his patient’s condition constituted prima facie invasion of right of privacy which would authorize damages for mental suffering, shame or humiliation); Holcombe v. Whitaker, 294 Ala. 430, 318 So.2d 289 (1975) (fraudulent misrepresentation made willfully authorized recovery for shame, humiliation, and mental anguish, adopting Morris v. MacNab, 25 N.J. 271, 135 A.2d 657 (1957), which stated: “[Wjhere the wrong is willful rather than negligent, recovery may be had for the ordinary, natural, and proximate consequences though they consist of shame, humiliation, and mental anguish.”). The damages recoverable for mental or emotional harm thus have been described as “parasitic,” that is, the right to recover for them has been dependent upon recovery for another independent, or separate, tort recognized at common law. Magruder, Mental and Emotional Disturbance in the Law of Torts, 49 Harvard L.Rev. 1033, 1048 (1936). This distinction, however, was neither significant nor followed in Herman Saks & Sons v. Ivey, 26 Ala.App. 240, 157 So. 265 (1934). In that case the defendant had sent to the plaintiff a collection letter whose terms violated a criminal statute (Code of 1923 §§ 3194, 3195; Cf. Code of 1975, § 13-6-17) imposing a sanction against sending abusive letters to another which might tend to breach the peace. The Court of Appeals, in recognizing a civil cause of action in the recipient, authorized recovery of substantial damages for the plaintiff’s mental anguish, annoyance and inconvenience (plaintiff also alleged that she had been made “sick and sore for a long period of time”). And in Hamner v. Bradley, 289 Ala. 624, 270 So.2d 81 (1972), involving allegations of abusive, insulting, provocative and threatening language by an insurance agent toward a hospitalization policyholder, a convincing dissent recognized

a marked tendency on the part of many jurisdictions to recognize that the intentional infliction of mental distress by extreme and outrageous conduct constitutes a cause of action in itself, apart from any traditional tort,

citing cases from other jurisdictions, articles on the subject, and Restatement (Second) of Torts § 46 (1948).

Universal acceptance of the theory of recovery recognized in Section 46 has been slow “[b]ecause of the fear of ficticious or trivial claims, distrust of the proof offered, and the difficulty of setting up any satisfactory boundaries to liability.” Comment, Restatement, supra, at 72. Perhaps the “bad faith” accusations in insurance claims, see Vincent v. Blue Cross-Blue Shield of Ala., Inc., Ala., 373 So.2d 1054 (1979), the debt collection cases, e. g., Norris v. Moskin Stores, Inc., 272 Ala. 174, 132 So.2d 321 (1961), and the employer-employee situations, such as Hinrichs v. Tranquilair Hospital, Ala., 352 So.2d 1130 (1977), suggest doubts to some about the wisdom of acknowledging this cause of action.

Concerning the latter, it should be sufficient to observe that an employer, by virtue of his position, possesses no roving license to treat his employee in an extreme and outrageous manner, whether before, during or after their relationship. Cf. M. B. M. Co., Inc. v. Counce, Ark., 596 S.W.2d 681 (1980). Neither does the creditor nor the claims representative with those with whom they deal. As stated by Wade, Tort Liability for Abusive and Insulting Language, 4 Vand.L.Rev. 63, 100:

No social utility is advanced by permitting unrestrained name-calling and use of insulting language. Just as clearly, there is a mental injury to the victim of the abusive words. In the United States today intensifying emphasis is being placed upon the individual, the integrity of his personality and its legal preservation and protection.... The law cannot undertake to guarantee peace of mind or complete mental equanimity, but it can and should be ready to grant damages for emotional distress intentionally caused by unjustifiable name-calling.
Administrative difficulties of trial— fears of the inadequacy of juries in assessing damages or determining fictitious claims, fears of opening the flood gates of litigation — have long been regarded as insuperable. But actual experience has shown that these fears are largely imaginary. No serious difficulties have been encountered in assessing damages in the carrier cases, the collection cases and the other exceptions to the general rule. And in the states with actionable words statutes and in other jurisdictions permitting recovery for abusive language, a survey of the cases indicates that the juries have not been reckless in awarding damages but have generally returned very moderate verdicts....

He added:

There has been no flood of litigation — at least so far as the appellate cases indicate. Indeed, judicial statistics show that defamation cases have proved almost an insignificant part of the total civil litigation in the trial courts; and there is no reason to believe that the number of actions for abusive language would be materially greater than those for defamatory language.

It should also be noted that this tort does not recognize recovery for “mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities.” Comment, Restatement, supra, at 73. The principle applies only to unprivileged, intentional or reckless conduct of an extreme and outrageous nature, and only that which causes severe emotional distress. The rule itself provides that the trial court determine in the first instance whether recovery is indicated, cf. Rule 12(b)(6), ARCP. And in those jurisdictions which have recognized the cause of action, appellate review frequently has upheld the denial of recovery. See Annot., 46 A.L.R.3d 772; Annot., 86 A.L.R.3d 454. For as the Massachusetts Supreme Judicial Court stated in George v. Jordan Marsh Company, 359 Mass. 244, 268 N.E.2d 915, 46 A.L.R.3d 762, 767 (1971):

Fact finding tribunals, whether judges, juries or auditors, are considered qualified and competent to decide whether there is any emotional distress resulting from a recognized common law tort, and, if there is, to include compensation therefor in any damages awarded the victim. They would seem to be equally qualified and competent to decide the same issues when the claim is based on intentional acts allegedly causing emotional distress without a recognized common law tort. When some of these same objections were made to recovery for prenatal injuries, we said: “The advancement of medical science should take care of most of these arguments. The element of speculation is not present to any greater extent than in the usual tort claim where medical evidence is offered and the issue of causation must be weighed with great care. * * The opportunity for fraudulent claims can be faced by the courts as in other types of cases. * * *”

We therefore join with our sister states of Maryland, Massachusetts, Missouri, Tennessee, West Virginia, Georgia, Washington, Florida, California and New York in appreciating that willful wrongs, or those made so recklessly as to equate willfulness, authorize recovery in damages for the mental suffering caused thereby, and we now recognize that one who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress and for bodily harm resulting from the distress. The emotional distress thereunder must be so severe that no reasonable person could be expected to endure it. Any recovery must be reasonable and justified under the circumstances, liability ensuing only when the conduct is extreme. Comment, Restatement, supra, at 78. By extreme we refer to conduct so outrageous in character and so extreme in degree as to go beyond all possible bounds of decency, and to be regarded as atrocious and utterly intolerable in a civilized society. Comment (d), Restatement, supra at 72. See also Prosser, Law of Torts (4th ed.) at 56-60 and Wade, supra, for instances which clearly fall within the principle. «

The instant casé, however, does not disclose facts which bring it within that cause of action. Cf. Harris v. Jones, 281 Md. 560, 380 A.2d 611 (1977), in which the tort was recognized but the evidence adduced was insufficient to establish liability. Accordingly, it was error for the trial court to deny the defendant’s motion for a directed verdict made at the close of the evidence and for judgment notwithstanding the verdict made thereafter.

The plaintiff, Inmon, established that he was employed as a field adjuster, and later as a claims supervisor, by The American Road Service Company, a subsidiary of Ford Motor Credit Company. The Service Company primarily provided insurance claim service to The American Road Insurance Company, another Ford subsidiary. Inmon was stationed in Atlanta for almost one year and in Birmingham for four years as a field adjuster, for the most part settling claims of automobile dealers carrying floor plan insurance. Based upon his examination he would prepare an estimate of the cost of repair which, when approved, would be paid by the insurance company, which did not require that the repairs actually be made. According to Inmon, his first supervisor instructed him to prepare estimates on dealers’ new car claims even when repairs were not needed. Thus he learned the corporate “numbers game” which was intended to favor the dealer by way of settlements which were based upon high estimates of small damage, or no damage at all. It was also part of Inmon’s duty to dispose of “salvaged” vehicles, i. e., those not economical to repair. This was done by soliciting sealed bids or by an auction conducted by a salvage pool.

Following his Birmingham service, Inmon was transferred to Detroit in December, 1973 as a claims supervisor, and in August, 1974 he was transferred to Houston, Texas where he both trained and supervised adjusters. His immediate supervisor was Donald Brady, District Manager. Brady’s immediate superior was Jim Wooley, who in turn was supervised by J. E. Neeley, Field Operations Manager. Inmon’s progress reports up to this time were favorable. Nevertheless Inmon became interested in employment with another subsidiary, Ford Life, and accepted a position with that company, to begin in March or April of 1976. With the prior approval of Reggie Semic, a representative of Ford Life, Inmon traveled to Little Rock and Memphis to look for a house.

Thereafter a series of incidents occurred. Mr. Wooley wished to purchase Inmon’s company car. The car had a small chip in the right corner of the windshield. According to Inmon, Wooley wished to obtain a price reduction by having Inmon alter a report on the car to represent that it had a broken windshield. Inmon did so, and Woo-ley purchased the car. But instead of paying for the car within four or five days, as was customary, Wooley delayed paying for about four months, necessitating several telephone “collection” calls by Inmon to Wooley.

About two weeks later Semic “backed off” the Ford Life position for Inmon and refused to approve Inmon’s travel expenses. Meanwhile, Inmon went to Arkansas to adjust some tornado damage, and while there he heard that Wooley had made an unusual trip to Houston to audit salvage files. In-mon testified that he asked Brady about the subject-matter of the audit; Brady responded that a variety of things were being examined. While Inmon was engaged with the tornado claims, Brady telephoned In-mon with a peremptory order to return to Houston. About thirty minutes later, Brady telephoned to reverse that order. A few hours later this process was continued. Nevertheless, Inmon returned the next day. Brady told him that the audit did not concern him, and immediately sent him to Austin, Texas, an unusual procedure according to Inmon. When Inmon returned to Houston, Brady almost immediately sent him to Dearborn to report to Wooley. Upon reporting, Inmon was directed to a Mr. Ryan at the World Headquarters Building. Ryan, he learned, was an internal security officer with Ford. Inmon maintains that Ryan proceeded to interrogate Inmon by stating “Respond,” followed by a name. At times Ryan would use files in framing his questions, but Inmon was not allowed to see the files. Subsequently Wooley joined in the interrogation, and accused Inmon of mishandling certain files without allowing him to see the files in order to provide an explanation. Several of these concerned instances of salvage sales, one of which had been approved by Wooley himself. According to Inmon, the questioning was gestapo-like and very upsetting, impliedly containing accusations of theft of some of the “overpayments.” Because of his upset condition, Inmon returned to Houston only after a stopover with friends in Louisville. Upon his return to work he was told to go home and wait for a call, which never came. Although he did ultimately return to work, he was told by Brady to turn in his company car because he was being terminated. Brady read to him a prepared statement:

An allegation has been made against you regarding kickbacks in connection with the disposition of salvage. The allegation resulted from a telephone conversation that you had with another employee, which conversation was overheard by another Company employee. In an attempt to resolve the allegation, we have . discussed the matter with the other two employees as well as yourself. The other employees have cooperated in the investigation, but you have not. In view of the seriousness of the allegation made against you, and your refusal to fully cooperate in the investigation, we have decided to terminate your employment with Ford Credit.
We will give you the opportunity to resign from the Company. If you do not, you will be discharged. In either event, there will be no separation allowance.

Inmon stated that Brady acknowledged that Inmon was “getting the shaft” perhaps for his failure to take a lie detector test, which, according to Inmon, he had agreed to take if it were also given to other claims people. Brady, however, refused Inmon’s request for a separation allowance or other termination benefits, although Brady did give Inmon a good recommendation for new employment.

Thus the tendencies of Inmon’s evidence showed that he had been harassed, investigated without cause, humiliated, accused of improper dealings, treated uncustomarily, and terminated without justification. His evidence also established emotional distress resulting in loss of weight and insomnia. It is sufficient here to state that the company’s representatives testified that their investigation related to allegations of a “kickback” scheme involving Inmon and Michael McCue, a claims supervisor in Baltimore. Inmon’s honesty was also questioned through his relationship with a salvage buyer.

After considering the entire record, we have concluded that the conduct of American Road Service Company toward Inmon does not meet the requirements of the cause of action we have recognized above. There is no evidence upon which reasonable people could base the belief that the company intended to cause Inmon severe emotional distress. The Brady telephone conversations, for example, do not reveal any such intent, even though at one point, according to Inmon, Brady said that he had been told to wait until Sunday night to notify Inmon that he was to report to Detroit the next afternoon at 1:00 o’clock. Any resentment springing from such impersonal treatment is not the severe emotional distress contemplated by this tort.

Inmon points us to a number of circumstances which, he maintains, amount to outrageous conduct. For one thing, Inmon had falsified the damage estimate so that Woo-ley could purchase the company car (for his son-in-law) at a reduced price, and then Wooley did not pay promptly. But Inmon did not establish that any of Wooley’s superiors knew of Wooley’s personally dishonest transaction which “heightened” Inmon’s anxiety. For another, Inmon’s disagreement with Semic about his expenses in connection with the Ford Life position was not shown to have any connection with American Road, even if Semic’s change of mind increased his anxiety.

The audit of Inmon’s Houston files by Wooley may have substantially increased his anxiety, as he claimed, simply because the man for whom he had falsified a record performed the audit. However, the act of performing the audit was one which American Road had the legal right to order, and there is no proof that the audit was illegally or improperly performed.

The four telephone calls Inmon received from Brady while in Arkansas were described by Inmon as “highly unusual” and calculated to destroy his emotional tranquility. And then, having returned the next day, he was sent to Austin “to keep him off balance.” The evidence shows, however, that he was allowed to remain in Arkansas later than his own supervisor wished, and that he was sent to Austin to reinspect the work of some auditors there. Although Inmon con-eluded that this decision was made to keep him “off balance,” these acts could not be classified as “extreme” or “outrageous.”

Inmon’s version of his meeting with Ryan, the investigator, on appeal is at odds with the record of that meeting. The gist of his evidence of record is that after Ryan introduced himself, he told Inmon that he had a list of names he wished responses to. Inmon said he would cooperate. The names were stated and Inmon made responses of varying lengths according to his own recollection. Although In-mon contended that Wooley and Ryan joined at this meeting in order to intimidate him in a “two on one” meeting, Wooley did not join them until Inmon himself requested the presence of someone else who “can ask me questions that you want to know.” It cannot be disputed that American Road had the right to investigate Inmon’s salvage disposal operations and, in that connection, to question him concerning them. Likewise, American Road also had the right to suspend Inmon from his employment following that investigation and the right to offer him the alternative of resigning or being discharged. While the record supports the conclusion that the management of Inmon’s investigation and termination may have been somewhat disorganized, and a humiliating experience for him personally, nevertheless American Road’s behavior throughout cannot, as a matter of law, be characterized as “so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.” Section 46, Comment (d), Restatement at 73. As Section 46, Comment (g), Restatement at 76 states:

The actor is never liable, for example, where he has done no more than to insist upon his legal rights in a permissible way, even though he is well aware that such insistence is certain to cause emotional distress....

And Comment (d), id. at 73:

The liability clearly does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities. ...

Thus we have concluded that the trial court erred in overruling the defendant’s motion for a directed verdict made at the close of the evidence. For that error the judgment is due to be, and is, reversed and remanded.

REVERSED AND REMANDED.

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

FAULKNER, J., concurs in that portion of the opinion recognizing the tort of outrageous conduct and dissents in that portion which denied recovery.

ALMON, J., concurs in the result only.


author: BRADLEY, Judge.

text:
    Rosa B. THOMAS v. C. M. THOMAS.
    Civ. 2229.
    Court of Civil Appeals of Alabama.
    Aug. 20, 1980.
    Rehearing Denied Sept. 24, 1980.
    Ernest H. Hornsby of Johnson & Horns-by, Dothan, for appellant.
    John E. Byrd of Byrd, Carter & Smith, Dothan, for appellee.
   BRADLEY, Judge.

This is a divorce case.

The husband, C. M. Thomas, filed a complaint for divorce on July 2, 1979 after thirty years of marriage. The trial court issued its divorce decree on January 14, 1980 on the basis of incompatibility. A motion for rehearing was filed by the wife, Rosa Thomas, on January 28, 1980 and was denied. An appeal was timely filed with this court.

The wife contends here that the trial court erred in the property division and in failing to award periodic alimony.

The trial court awarded the wife: (1) the family residence which was valued from $55,000 to $75,000; (2) household furnishings estimated to be worth $10,000; (3) $25,000 alimony in gross; and (4) $750 as an attorney’s fee. The husband was required to pay the balance of the mortgage on the house in the amount of $6,500. The trial court did not give the wife periodic alimony nor did it reserve the right to do so in the future.

The evidence shows that Mr. Thomas is fifty-nine years old, is retired from the United States Navy and General Telephone Company and is receiving retirement benefits from both agencies in the total amount of $672.89 a month. He also received $2,034 in 1978 as net income from a trailer park that he owns and operates. He is in good health. The wife is fifty-four, has a B.S. degree in chemistry and biology from Ford-ham University and is employed in a local hospital as a medical technician. Her gross annual income is about $15,750. She is in reasonably good health and stated that she desired to work for several more years.

The parties’ marriage lasted for thirty years; three children who are now adults were born during the marriage; and there was no misconduct shown on the part of either party.

The wife testified that she had worked during most of the marriage, and she will be eligible for retirement in two years but will have to wait until age sixty-five to receive the benefits which, at the present time, will amount to about $200 per month. Her salary checks were placed in her personal bank account. She did, however, transfer money to the parties’ joint account when necessary to pay household bills, and she did pay for some household expenses out of her personal bank account. She also wrote the checks for the household expenses out of the joint account. The wife stated that the husband’s maximum contribution to the joint account was $600 per month with the balance of his income going into the trailer court account.

The wife said she received during the marriage an inheritance amounting to $39,-000. She contributed $12,000 of this sum to the down-payment on the jointly owned house and lot. The present balance of her inheritance account is $22,579. Her checking account contains $1,300, $1,000 of which came from a credit union loan. The balance of that loan is now $900. She also has $900 in a credit union share account and she owns a 1976 Pontiac debt-free. The household furnishings were valued by her at about $10,000, the bulk of which she paid for from her separate funds.

According to the wife the jointly owned house and lot were valued at $55,000. The property has an outstanding mortgage of about $6,500. She says that the mortgage payments have been made from the joint account. She also said that two lots owned by the parties were sold when the present house was being built and only one-half of the proceeds went in the house building account. She thinks the remainder went into the trailer court account.

The wife valued the trailer court at $175,-000 and she valued at $65,000 thirty acres of unimproved land purchased by the husband. She said she never contributed any of her money to the purchase and development of the trailer court nor did she help in any way with its operation and management. Neither did she contribute any money to the purchase of the thirty acres of land. However she did say that all of her earnings went to the upkeep of the family.

The husband’s testimony shows that he placed all of his salary checks in the joint account for the payment of the family bills. The wife wrote the checks on this account to pay the bills. He said she placed her salary checks in her personal account and did not pay family bills with any of her money. He did say that the wife bought her car and clothes with her money. Other than the joint account, the husband stated that he had $5,000 in the trailer court account, less than $100 in a personal checking account, about $550 in savings accounts, $259 in a credit union share account, and one hundred shares of General Telephone stock valued at $4,000. He also owns a wrecked 1954 DeSoto automobile and a 1971 Chrysler, a small tractor that is three to four years old, a riding lawn mower purchased in 1979 for $760 that is used at the trailer court, a Coca-Cola dispensing machine that is ten to twelve years old which was purchased for $700 and is used at the trailer court, a portable power generator valued at $450 which is used at the trailer court, a house trailer located at the trailer court in which he lives purchased for $2,100, and a washer-dryer used at the trailer court which was purchased in 1978 for $700.

The husband testified that he purchased the twelve acres that was developed into a trailer court in 1959 for $4,000. He said he borrowed $3,000 from his wife to make the purchase and paid her back with six percent interest. The gross income from the trailer court in 1978 was about $20,000. Net profit, as shown on his income tax return, was about $2,000.

The husband testified that he had given his children money out of the trailer court account and had used this account to pay other bills. He would not, however, place a value on the trailer court. The property is debt-free.

The husband said he purchased the thirty acres in 1970 for $16,500. The mortgage payments were made from the trailer court account; none were made from the joint account. The property is debt-free at the present time. He values this property at $65,000.

The husband does say that the wife contributed to the purchase of the jointly owned house and lot but that he does not know how much. He says all the money from the sale of the two lots went into the joint account and that he wrote his wife a check for $2,375 as her half of one of the lots. He says he does not know what she did with the money.

As has been said many times before, an alimony award in a divorce case made after an oral hearing is presumed to be correct and will be set aside on appeal only for gross abuse of discretion. Elsevier v. Elsevier, Ala.Civ.App., 355 So.2d 382 (1978). In the instant case the trial court did not award periodic alimony to the wife and we do not find a gross abuse of discretion in its failure to do so. Meyers v. Meyers, 55 Ala.App. 697, 318 So.2d 725 (1975).

In determining the amount of alimony to be awarded or whether to make an award at all, the trial court may properly consider the earning ability of the parties, their future prospects, their ages, station in life, duration of the marriage, and the conduct of the parties as relates to the cause of the divorce. Chancellor v. Chancellor, 52 Ala.App. 10, 288 So.2d 794 (1974).

Both parties were employed, with the wife earning about $15,000 a year and the husband receiving not less than $10,000 a year. The husband is retired and the bulk of his income is from retirement resources. Both of them are in good health with good prospects for the future. There was no misconduct shown on the part of either party.

Next the wife says that the trial court erred in the division of property and the award of alimony in gross by taking into consideration, contrary to the provisions of § 30-2-51, Code of Alabama 1975, an inheritance she had received.

Section 30-2-51 provides in part as follows:

[Pjrovided, however, that the judge may not take into consideration any property acquired ... by inheritance ... unless the trial judge finds from the evidence that such property, or income produced by such property, has been used regularly for the common benefit of the parties during their marriage.

The trial court’s decree contains no finding that the wife’s inheritance has been used regularly for the common benefit of the parties during their marriage, and the only evidence in the record showing that the wife had used some of her inheritance for the benefit of the parties was the $12,-000 she applied to the purchase of the house and lot. But, this was a one-time occurrence. And, under these circumstances it cannot be said that § 30-2-51 has been violated.

The next issue to be considered is whether the trial court erred in the amount of property and permanent alimony awarded to the wife.

In determining the amount of permanent alimony to be awarded in a divorce case, a trial court is not bound by fixed rules but decides each case on its own peculiar facts. Frazier v. Frazier, 273 Ala. 53, 134 So.2d 205 (1961). Also, a property division is not required to be equal but it does have to be equitable. Crane v. Crane, 57 Ala.App. 685, 331 So.2d 699 (1976). And such awards made after an oral hearing before the trial court are presumed correct and will be set aside only for gross abuse of discretion. Elsevier v. Elsevier, supra.

After a careful examination of the evidence, the pertinent parts of which are set out above, we do not find that the trial court abused its discretion in its division of the assets nor in its award of alimony in gross.

The wife’s request for an award of attorney’s fee on appeal is denied.

AFFIRMED.

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


author: EMBRY, Justice.

text:
    Ex parte Rosa B. THOMAS. (In re Rosa B. THOMAS v. C.M. THOMAS).
    80-23.
    Supreme Court of Alabama.
    Jan. 29, 1981.
   EMBRY, Justice.

In denying the writ of certiorari in this case, we are not to be understood as approving the interpretation given by the Court of Civil Appeals to Code 1975, § 30-2-51, as it relates to the trial judge’s consideration of an inheritance received by a spouse requesting alimony.

WRIT DENIED.

TORBERT, C. J., and FAULKNER, AL-MON and ADAMS, JJ., concur.


text:
    E. Larry BROWN, a/k/a Everett Livingston Brown v. Sulena MARTIN.
    Civ. 2344.
    Court of Civil Appeals of Alabama.
    Nov. 12, 1980.
    Rehearing Denied Dec. 17, 1980.

      James B. Morton of Propst, Topazi & Morton, Birmingham, for appellant.
    Carleton P. Ketcham, Jr. of Dominick, Fletcher, Yeilding, Acker, Wood & Lloyd, Birmingham, for appellee.
   BRADLEY, Judge.

This is an appeal from a default judgment entered by the Circuit Court of Jefferson County pursuant to Rule 55(b)(2) of the Alabama Rules of Civil Procedure on behalf of plaintiff Sulena Martin against defendant Larry Brown. We dismiss this appeal for lack of jurisdiction.

Plaintiff's complaint alleged that defendant was in default on a promissory note executed by defendant in favor of plaintiff and claimed damages, interest and attorney’s fees. Defendant answered by asserting several grounds of defense. Defendant also moved to dismiss the complaint. Plaintiff amended her complaint by adding several counts and asking for punitive damages. Defendant answered by denying the allegations of the amended complaint.

On January 14, 1980 this case was called on the trial docket of the Circuit Court of Jefferson County by the presiding judge for that circuit. Although plaintiff appeared by counsel, defendant did not. Plaintiff moved the court to enter a default judgment against defendant. The court granted the motion and entered a default judgment against defendant for $7,751.00. On February 13,1980 defendant filed a written motion with the court requesting that it set aside the default judgment and reinstate the case on its trial docket. The court overruled this motion on March 4,1980. On April 1, 1980 defendant filed a motion asking the court to reconsider its order of March 4, 1980 overruling defendant’s February 13,1980 motion. The court overruled this motion on April 24, 1980. No oral testimony, affidavits, interrogatories, or depositions were offered into evidence by defendant in support of his motions of February 13 and April 1 to substantiate his contention that the default judgment of January 14 should be set aside and this cause restored to the circuit court’s trial docket. Defendant filed a notice of appeal to this court on May 19, 1980.

Plaintiff contends that this court is without jurisdiction to review the validity of the trial court’s entry of a default judgment in this case and denial of defendant’s motion of February 13, 1980 to set aside this judgment. We agree.

The jurisdiction of this court is invoked by the filing of notice of appeal from the judgment of the trial court within forty-two days of said judgment. Rules 3(a)(1) and 4(a)(1), ARAP. If such notice is not filed within this time period, the appellant’s appeal must be dismissed by this court. ARAP 2(a)(1). Nevertheless, ARAP 4(a)(3) provides that, under certain circumstances, this time period may be extended:

The filing of a post-trial motion pursuant to Rules 50, 52 and 59 of the Alabama Rules of Civil Procedure (ARCP) shall suspend the running of the time for filing a notice of appeal. In cases where post-trial motions are filed, the full time fixed for filing a notice of appeal shall be computed from the date of the entry in the civil docket of an order granting or denying such motion.

It is readily apparent that this rule does not, by its terms, apply to post-trial motions made pursuant to Rules 55(c) or 60(b), ARCP. But in Woods v. Hauser Realty Co., Ala.Civ.App., 366 So.2d 731 (1979), we held that an ARCP 55(c) motion also tolls the running of the time period within which a notice of appeal must be filed pursuant to Rules 3 and 4 of the ARAP. The time for filing begins to run again only when the trial court enters an order granting or denying the motion. Woods v. Hauser Realty Co., supra.

Returning to the facts of the case before us, we find that defendant’s motion of February 13, 1980 was a motion properly made pursuant to ARCP 55(c). That rule provides as follows: “In its discretion, the court may set aside ... a judgment by default within 30 days thereafter.”

Upon denial of this motion by the trial court on March 4,1980, defendant had until April 15, 1980 to file a notice of appeal to this court from this order. Defendant clearly failed to do this but now contends that the running of the time for filing his appeal from the order was tolled yet again when he filed another motion on April 1, 1980 asking for a reconsideration of the March 4,1980 order and that the time within which to appeal from the denial of this motion did not begin to run again until it was overruled on April 24,1980. It follows, a fortiori, that this court has jurisdiction to consider the validity of all orders and judgments entered by the trial court in this case.

To begin we would note that a motion to reconsider an order made by the trial court disposing of a motion of a type set out in Rule 4(a), ARAP, does not again terminate the running of the time for taking an appeal. Wilger v. Department of Pensions & Security, Ala.Civ.App., 343 So.2d 529 (1977). Since the tolling provisions of ARAP 4(a)(3) apply to an ARCP 55(c) motion, a motion to reconsider an order denying an ARCP 55(c) motion does not again toll the running of the period within which a notice of appeal to this court must be filed. Consequently, we are without jurisdiction to decide whether the trial court erred in rendering a default judgment against defendant and abused its discretion in overruling defendant’s ARCP 55(c) motion; accordingly, we dismiss appellant’s appeal for want of jurisdiction.

Defendant has suggested in brief that we treat his motion to reconsider the March 4, 1980 order as a motion for relief under ARCP 60(b)(1) or 60(b)(6). We decline to do so for the reason primarily that this motion was nothing more than a motion for the trial court to reconsider its previous order. Practically nothing different was presented by the motion to reconsider than was presented by the motion to set aside the default judgment. Furthermore, there was no evidence such as affidavits, testimony, etc., offered in support of the motion to reconsider. Under these circumstances we perceive no compelling reason to treat the motion to reconsider the motion to set aside the default judgment as either a Rule 60(b)(1) or 60(b)(6) motion.

APPEAL DISMISSED.

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


author: SHORES, Justice.

text:
    Ex Parte E. Larry BROWN. (Re: E. Larry BROWN, also known as Everett Livingston Brown v. Sulena MARTIN.
    80-235.
    Supreme Court of Alabama.
    March 6, 1981.
   SHORES, Justice.

WRIT DENIED — NO OPINION.

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


author: HOLMES, Judge.

text:
    Raymond Richard WEAVER v. Jeanne Moore WEAVER.
    Civ. 2295.
    Court of Civil Appeals of Alabama.
    Nov. 26, 1980.
    Rehearing Denied Dec. 24, 1980.
    John L. Cole, Birmingham, for appellant.
    Douglas Corretti of Corretti, Newsom & Rogers, Birmingham, for appellee.
   HOLMES, Judge.

This is a divorce case.

The trial court divorced the parties, made a division of property, and required the husband to pay child support.

The husband appeals, primarily contending the trial court abused its discretion in the division of property and in the amount of the award of child support. Additionally, the husband contends the trial court erred to reversal regarding certain eviden-tiary rulings. We find no error that requires reversal of the trial court’s decree and affirm.

Viewing the record with the attendant presumptions accorded the trial court’s decree, the following is pertinently revealed.

The parties were married for over thirty years. Both the husband and wife are in their early fifties. Six children were born of the marriage. At the time of the divorce only one child was a minor. This minor child is sixteen years of age.

The husband and wife each have a Master’s degree. The wife is employed by Jefferson State College as a teacher. Her “net” or take home pay is approximately $13,000 per year. The husband is a minister. At present, he earns approximately $7,000 per year and is now furnished a house. The main asset of the parties consisted of a home which they purchased. The value of the home was approximately $50,000. In addition, the parties owned automobiles, cemetery lots, some stocks, an annuity fund, and furniture. Furthermore, certain life insurance policies were in force, and the wife possessed a teacher retirement fund.

There was evidence that the wife has in the past suffered certain emotional or mental problems. There was also evidence that the husband was abusive to the children and the wife; specifically, that he physically and emotionally abused the wife and children.

With the above before it, the trial court divorced the parties; awarded custody of the one minor child to the wife; required the husband to pay $125 per month child support; awarded the wife the homeplace; awarded each party some cemetery lots and automobiles; required the husband to maintain certain life insurance policies; awarded to the wife her retirement fund, a tax sheltered annuity, and a life insurance policy; awarded the husband certain stock and a life insurance policy. The trial court divided the furniture.

Additionally, the trial court specially found the husband “guilty of many acts of gross misconduct” which the trial court found to have caused the breakdown of the marriage.

I

At the outset, we note that a division of property pursuant to a divorce is a matter within the sound discretion of the trial court and will not be disturbed on appeal except upon a showing of plain and palpable abuse. Ray v. Ray, Ala.Civ.App., 379 So.2d 627 (1980); 8 Ala. Digest Divorce Key 286(5).

We do not deem it necessary in this instance to attempt to place a value on each asset awarded to the respective parties. However, we do note that in large measure the homeplace awarded to the wife is well over 50% of the parties’ entire assets.

Excluding the homeplace from the noted assets of the parties, and accepting the husband’s figures as correct, the wife was awarded assets with a value of less than $30,000 and the husband was awarded assets with a value in excess of $13,000.

A division of property in a divorce proceeding need not be equal, but must be equitable according to the circumstances of the case. Beale v. Beale, Ala.Civ.App., 371 So.2d 931 (1979); 8 Ala. Digest Divorce Key 252.2.

In this instance, in view of the circumstances as indicated above with particular emphasis on the fact that the wife has custody of the child, the misconduct of the husband, and the husband being provided a home, we find no abuse of discretion in awarding the home to the wife. This court has previously stated that it is not error under appropriate circumstances to award the homeplace to one party even though that asset be virtually the only asset the parties possess. See, Eubanks v. Eubanks, 52 Ala.App. 224, 291 So.2d 159 (1974); Carter v. Carter, Ala.Civ.App., 390 So.2d 294 (1980). Considering all the facts of this case, we consider the instant appeal to be within the perimeter of Eubanks and Carter.

We therefore conclude that the trial court did not commit reversible error in the division of property. To reverse this case, we would have to substitute our judgment for that of the trial court. This the law does not permit. Sutton v. Sutton, 55 Ala.App. 254, 314 So.2d 707 (1975).

II

The husband, through able counsel, next contends the trial court committed reversible error in the award of child support.

The amount of child support is a matter within the sound discretion of the trial court and will not be reversed on appeal absent a manifest abuse of discretion. See, Phillips v. Phillips, Ala.Civ.App., 344 So.2d 786 (1977).

As indicated above, the husband’s income is limited. However, considering the fact the husband is well educated, holding a Master’s degree, and further, considering the needs of a child and the present cost of living, this court cannot say an award of $125 per month child support is so excessive as to require reversal. See, Metcalf v. Metcalf, Ala.Civ.App., 340 So.2d 38 (1976).

III

The husband next contends the trial court erred to reversal in failing to admit into evidence certain conversations between the wife and a minister. These conversations were apparently excluded by the trial court pursuant to § 12-21-166, Code of Ala.1975.

We need not address ourselves to the applicability of the referenced statute as clearly any error in this regard would be harmless error. See Rule 45, ARAP. We say this because, as indicated, there is evidence to support the trial court’s findings and conclusion. Put another way, the ruling by the trial court which is complained of could not have legally affected the result of the trial. See, Clevenger v. State, Ala. Civ.App., 369 So.2d 563 (1979).

In addition to the above evidentiary ruling, the husband argues the trial court erred in refusing to admit certain letters from the children to the father. We do not deem it necessary to set out in detail these contentions by the husband. Suffice it to say any error committed would again be harmless for the reasons stated above. We particularly note that numerous letters were in fact introduced into evidence and the children testified.

IV

Lastly, we would note that the husband contends the evidence does not support the trial court’s conclusion of misconduct by the husband.

We have carefully reviewed the voluminous record in the instant appeal. There is evidence to support the trial court’s findings and conclusion.

The above issues are dispositive of this appeal and the case is due to be affirmed.

AFFIRMED.

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


author: TORBERT, Chief Justice.

text:
    Ex Parte Raymond Richard WEAVER. (Re: Raymond Richard Weaver v. Jeanne Moore Weaver).
    80-246.
    Supreme Court of Alabama.
    Feb. 20, 1981.
   TORBERT, Chief Justice.

WRIT DENIED—NO OPINION.

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


text:
    E. T. HOLSONBACK, d/b/a E. T. Holsonback Motors v. FIRST STATE BANK OF ALBERTVILLE, a corporation.
    Civ. 2409.
    Court of Civil Appeals of Alabama.
    Dec. 10, 1980.
    Rehearing Denied Jan. 7, 1981.

      T. J. Carnes of Carnes & Carnes, Albert-ville, for appellant.
    Robert W. Hanson, Albertville, for appel-lee.
   HOLMES, Judge.

This is a case governed by the provision of the Uniform Commercial Code, §§ 7-1— 101 et seq., Code of Ala.1975.

Holsonback, the defendant below, appeals from a judgment entered against him by the Circuit Court of Marshall County. The issues presented for review are: (1) whether the trial court erred in finding a draft issued by Holsonback to be a negotiable instrument, (2) whether the trial court erred in failing to give Holsonback a judgment for possession of an automobile certificate of title in the possession of plaintiff, First State Bank of Albertville.

We find no error and affirm.

A review of the record reveals the following facts:

One Higgins was a dealer in used automobiles. In 1978, Higgins purchased a 1977 Corvette automobile. Higgins paid for this automobile by giving the seller a draft drawn by Higgins on the First State Bank of Albertville in the amount of $8,115. This draft along with the certificate of title to the Corvette was later presented by the seller to the First State Bank for payment.

Meanwhile, Higgins sold the Corvette to Holsonback. Holsonback paid for the automobile by giving Higgins a draft drawn by Holsonback on the Albertville National Bank in the amount of $8,225. It is the negotiability of this draft that is in issue in this case.

When Higgins’ draft was presented to the First State Bank for payment, First State Bank called Higgins and requested that he pay his draft. Higgins did so by transferring the Holsonback draft to the First State Bank. First State Bank then paid the original seller of the Corvette $8,115 and paid Higgins $110 in cash. These payments were made against the Holsonback draft.

First State Bank then forwarded the Hol-sonback draft along with the Corvette’s certificate of title, a mileage statement, and Higgins’ bill of sale to the Albertville National Bank for payment.

Upon receiving the Holsonback draft, the Albertville National Bank requested that Holsonback pay it. Holsonback, after examining the certificate of title and discovering the absence of a necessary signature, refused to pay the draft. Specifically, a former owner upon selling the automobile failed to sign the automobile’s certificate of title. The draft and accompanying documents were returned to the First State Bank.

The First State Bank was advised of the defect in the certificate of title. After having the defect cured, the First State Bank for a second time presented the draft for payment. Holsonback again refused to pay his draft. The draft and documents were returned to the First State Bank. First State Bank then sued Holsonback on his draft.

At the time of trial, Holsonback was in possession of the automobile.

The draft in question in this case was drawn on a form printed on an envelope. This type of draft is apparently used by car dealers and banks to facilitate the transfer of certificates of title and other relevant documents from seller to buyer. As noted above, this envelope when presented to Hol-sonback contained the Corvette's certificate of title, a mileage statement, and a bill of sale.

The form of this draft does not differ in any material way from a standardized check form except for the presence of the following words: “ENCLOSED-TITLE ON 77 CHEV. VETT. FREE OF ALL LIENS AND ENCUMBRANCES.” Upon cross-examination, the president of the First State Bank testified to the effect that these words as used by the banking and automobile businesses in the southeastern United States are understood to mean that the automobile buyer’s obligation to pay the seller for the automobile is conditioned upon the seller furnishing proper title to the automobile.

It is Holsonback’s contention through able counsel that the above understanding is a usage of trade in the banking and automobile businesses and that the words, ’’ENCLOSED-TITLE ON 77 CHEV. VETT. FREE OF ALL LIENS AND ENCUMBRANCES,” when viewed in light of this usage of trade render the promise or order to pay money embodied in the draft conditional. In other words, Holsonback argues that facts extrinsic to the draft, i. e., the purported usage of trade, must be considered in determining whether the draft’s order or promise to pay is conditional or unconditional.

At the outset, we note that for any writing to be a negotiable instrument under Article III of the Uniform Commercial Code it must contain, among other things, “an unconditional promise or order to pay a sum certain in money.” (Emphasis supplied.) § 7-3-104(l)(b), Code of Ala.1975. A writing containing a conditional promise or order cannot be a negotiable instrument under § 7-3-104(l)(b).

Negotiability is determined from the face, the four-corners, of the instrument without reference to extrinsic facts. First State Bank at Gallup v. Clark, 91 N.M. 117, 570 P.2d 1144 (1977); Bender’s U.C.C. Service, Hart & Willier, Commercial Paper § 2.03(1). The conditional or unconditional character of the promise or order is to be determined by what is expressed in the instrument itself. Booker v. Everhart, 294 N.C. 146, 240 S.E.2d 360 (1978); First State Bank at Gallup v. Clark, supra; Walls v. Morris Chevrolet, Inc., 515 P.2d 1405 (Okla.1973); § 7-3-105, Official Comment, Code of Ala.1975; § 7-3-119, Official Comment 5, Code of Ala.1975; 2 Anderson on the Uniform Commercial Code § 3-104:4 and § 3-105:5 (1971). The above indicates that in order for a promise or order to be conditional an express condition to payment must be stated on the face of the instrument. § 7-3-105, Official Comment, Code of Ala.1975; Anderson § 3-105:5, supra. See, § 7-3-105(2), Code of Ala.1975.

Additionally, we note § 7-3-105(l)(a), Code of Ala.1975, provides “a promise or order otherwise unconditional is not made conditional by the fact that the instrument is subject to implied or constructive conditions.” Assuming without deciding that the purported usage of trade is an implied or constructive condition inherent in a contract for the sale of an automobile, § 7-3-105(l)(a) does not allow such a condition to be read into an instrument to destroy its negotiability.

There is nothing on the face of the draft before us that states payment of the draft is conditioned upon the delivery of proper title to the automobile. The words, “ENCLOSED-TITLE ON 77 CHEV. VETT. FREE OF ALL LIENS AND ENCUMBRANCES,” appear to be and the trial court so found them to be merely a description of the contents of the envelope. See, Wiley v. Peoples Bank & Trust Co., 438 F.2d 513 (5th Cir. 1971). Stated differently, when viewed without reference to extrinsic facts, i. e., the purported usage of trade, there is nothing on the face of the draft that makes payment conditional. For this reason, we find that the trial court did not err in finding the draft to be a negotiable instrument.

Holsonback also contends the trial court erred in failing to find him entitled to possession of the automobile’s certificate of title.

Section 7-4-208(1), Code of Ala.1975, provides in pertinent part:

(1) A bank has a security interest in an item and any accompanying documents or the proceeds of either:
(c) If it makes an advance on or against the item.

As indicated above, the draft was printed on an envelope. The automobile’s certificate of title was enclosed in that envelope. The certificate of title is a document accompanying the draft. See § 7-4-104(l)(g).

First State Bank has made an advance against the draft — $8,115 to the original seller of the automobile and $110 to Higgins.

Under § 7-4-208(l)(c), First State Bank having made an advance against a draft has a security interest in that draft and any accompanying documents. This security interest continues and gives the bank the right to retain possession of the draft and accompanying documents up until the time the draft is finally paid. § 7-4-208(3), Code of Ala.1975; 3 Anderson on the Uniform Commercial Code § 4-208:6 (1971).

We find the trial court did not err in failing to render a judgment entitling Hol-sonback to possession of the certificate of title.

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

AFFIRMED.

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

      . We note Holsonback’s stated reason for refusing to pay his draft a second time involves a check given him by Higgins. This check was twice dishonored for insufficient funds.


author: PER CURIAM.

text:
    Ex Parte E. T. HOLSONBACK (Re: E. T. HOLSONBACK v. FIRST STATE BANK OF ALBERTVILLE, a corporation).
    80-263.
    Supreme Court of Alabama.
    March 6, 1981.
   PER CURIAM.

WRIT DENIED — NO OP.

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

ALMON, EMBRY and ADAMS, JJ., dissent.


text:
    GENESCO, INC. v. Ruby ROSE.
    Civ. 2373.
    Alabama Court of Civil Appeals.
    July 30, 1980.
   PER CURIAM.

Appeal dismissed as untimely filed. No opinion.

All the Judges concur.

Certiorari denied, Ala., 394 So.2d 385.


author: ADAMS, Justice.

text:
    Ex parte GENESCO, INC. (Re: GENESCO, INC. v. Ruby ROSE).
    79-961.
    Supreme Court of Alabama.
    Feb. 13, 1981.
    Charles W. Cochran, III and J. A. Keller, Florence, for petitioner.
    Robert L. Gonce, Florence, for respondents.
   ADAMS, Justice.

The petition of Genesco, Inc., for certiora-ri to the Court of Civil Appeals is denied on the authority of Phelps v. State, 339 So.2d 124 (Ala.1976).

Denied.

TORBERT, C. J., and FAULKNER, AL-MON and EMBRY, JJ., concur.


author: TYSON, Judge.

text:
    Luther HOLLENQUEST, alias v. STATE.
    3 Div. 264.
    Court of Criminal Appeals of Alabama.
    Oct. 7, 1980.
    Rehearing Denied Oct. 28, 1980.

      William E. Skinner of Skinner & Go-brecht, Montgomery, for appellant.
    Charles A. Graddick, Atty. Gen., and J. Anthony McLain and James F. Hampton, Sp. Asst. Attys. Gen., for appellee.
   TYSON, Judge.

Luther Hollenquest was charged by indictment with child molestation. A jury found the appellant “guilty as charged,” and the trial court set punishment at five years imprisonment in the penitentiary. The appellant prosecutes this appeal from the denial of his motion for new trial.

The prosecutrix, a seven year old child, resides in Brooklyn, New York. During December, 1979, she and her parents were visiting and staying with relatives in the Youngfort Village section of Montgomery, Alabama.

The appellant, a friend of the prosecu-trix’s family, visited with them everyday after he got off work. On December 20, 1979, about 6:00 p. m., the prosecutrix’s mother asked the appellant to drive the prosecutrix across town to her grandmother’s house in the Tulane Court area of Montgomery.

The prosecutrix testified that on the way to her grandmother’s the appellant took her to a “parking place” and molested her. She testified she cried and tried to get away. Shortly thereafter the appellant took the prosecutrix to her grandmother’s house.

After the appellant left she told her grandmother what happened. The grandmother phoned the prosecutrix’s mother who in turn contacted the police.

A warrant was obtained for the arrest of the appellant. Detective Corporal Ed Mun-son of the Montgomery Police Department’s Youth Aid Division and several other officers arrested the appellant at his residence during the early morning hours of December 21, 1979.

The appellant took the witness stand in his own behalf and denied the allegations.

I

During the State’s direct examination of Mrs. Catherine Bradberry, grandmother of the prosecutrix, the following occurred:

Q (Mr. Pool continues) Mrs. Bradberry, did she tell you what had happened to her?
A She said she had been—
MR. SKINNER: Object.
THE COURT: Don’t tell us what she said. Just answer the question.
A Well, she just said he raped her.
MR. SKINNER: I object to that.
THE COURT: Will the Jury step into the Jury Room, please?
(Whereupon, the Jury was removed from the Courtroom, and the following proceedings were had out of the presence of the Jury:)
THE COURT: Mrs. Bradberry, you have to respond to the question as asked. Mr. Pool’s question to you was: Did she tell you what happened to her? And the answer to that question if she did is, yes, she did. But that is the extent of it.
MR. SKINNER: Your Honor, I overheard — she answered the question that the child said that she was raped. And that was done in the presence of the Jury. At this time, I would like to make a Motion for a mistrial. It is something I don’t think an admonishment to the Jurors can be removed.
THE COURT: I am going to admonish them and then I am going to ask each and every one of them if they feel like it is going to affect their individual verdict in this case.
Bring them back in.
Mr. Pool, it might be best if you would not ask questions which are calculated to elicit answers that are not admissible.
MR. POOL: I wasn’t, Your Honor. (Whereupon, the Jury was returned to the Courtroom, and the following proceedings were had in the presence of the Jury:)
THE COURT: Ladies and gentlemen of the Jury, you will disregard the last answer that this witness gave. An objection was made and before the Court could sustain that objection, the witness answered the question. Those of you who are familiar with trials of cases know that that answer was a hearsay answer. And hearsay is not admissible in a court of law because the party against whom it seeks to be admitted was not present there and doesn’t know whether that statement was made or not, and neither does anybody else and neither do you. And the witness can’t be cross-examined on that point because it is a statement made outside of your presence and it is a statement made outside the presence of the Court and its credibility is eminently suspect in the trial of any case. But, nevertheless, you heard the answer to that question. And I am going to put this question to each and every one of you: Is there any member of this Jury, after hearing the answer to that question, that feels like the answer to that question may in any manner influence their ability to render a verdict in this case based on the legal and admissible evidence in this case? Anyone? If you have the slightest doubt whatsoever, tell me.
All right. The Motion is denied. Let’s proceed.” (R. p. 48-59)

The appellant contends that Mrs. Brad-berry’s hearsay testimony amounts to reversible error, especially so since her testimony related to a more heinous offense than the one he was charged with.

The rule in Alabama is that testimony concerning the prosecutrix’s complaint may be related by a third party witness. Smelcher v. State, Ala.Cr.App., 385 So.2d 653 (1980). Only the fact that the complaint was made may be testified to and not the details of the occurrence. Lawson v. State, Ala.Cr.App., 377 So.2d 1115, cert. den., Ala., 377 So.2d 1121 (1979).

Although we believe rape and child molestation to be equally atrocious and detestable, if any error occurred in allowing the complaint of rape before the jury, it was cured by the trial court’s prompt, responsive, and conscientious action in admonishing the witness, instructing the jury to disregard the answer from their consideration, and by polling the jury as to the prejudicial effect of the remark. Lawson, supra; Long v. State, Ala.Cr.App., 370 So.2d 354 (1979); Braden v. State, 49 Ala.App. 97, 268 So.2d 877 (1922). We find no abuse of discretion in the denial of the appellant’s motion for mistrial. Hurt v. State, Ala.Cr.App., 361 So.2d 1163 (1978); Adair v. State, 51 Ala.App. 651, 288 So.2d 187 (1974); Retowsky v. State, Ala.Cr.App., 333 So.2d 193 (1976).

II

The appellant claims the trial court erred by denying his motion to suppress items of clothing seized by the police during his arrest. Among the clothing was a pair of underwear. Scientific tests revealed the presence of semen on the front area of the underwear.

A hearing was held on the motion to suppress approximately three weeks before trial. The evidence at that hearing was in hopeless conflict. Montgomery Police Officer Sam A. Smith testified that he, Detective Munson, and several other police officers arrived at the appellant’s residence during the early morning of December 21, 1979. They were armed with a warrant for the appellant’s arrest. Officer Smith proceeded to the rear entrance of the residence while the other officers approached the front door. Officer Smith entered the appellant’s residence through the front entrance after the other officers entered the house. He could not testify as to whether they had permission to enter.

Before leaving police headquarters, Officer Smith and Detective Munson observed a photograph of the appellant. After the officers entered the house the appellant falsely identified himself as “Henry Jordan.” Based on the earlier observation of the photograph, Officer Smith identified “Henry Jordan” as the appellant, advised him they had a warrant for his arrest, and placed him under arrest. Detective Munson advised the appellant of his Miranda rights.

Officer Smith then testified to the following:

“Corporal Munson asked Mr. Hollenquest where his clothes were that he had worn the day prior to that, and he advised that they were in the bedroom on the floor, and Corporal Munson advised him that we would need those clothes to take to the lab. And at that time he gave us permission to get the clothes and we went in the bedroom and picked the clothes up off the floor, .... ” (R. p. 5A)

Officer Smith testified they did not have a search warrant. The State presented no evidence that they conducted any other search and seizure.

Erma Jean Hollenquest testified that she answered the police officers’ knock at the door on the early morning of December 21, 1979. The police identified themselves and said they had a “search warrant” for the appellant. Mrs. Hollenquest testified, “I stepped back — I don’t know whether I told them to come in or not to come in. But I stepped back during that time and they did come in.” She testified that she “did not give anybody permission to do anything.”

Mrs. Hollenquest testified the appellant gave the police a false name. She also testified the police “looked” in all the rooms of the house.

The appellant testified he gave the police a false name because he thought they were looking for him for failure to pay a “DWI ticket.” He testified his wife told him the police had a “warrant” for him.

The appellant stated he did not point out his clothes to the police and did not give them permission to take the clothes. He also testified the police searched his house against his wishes and they failed to produce a search warrant. The appellant stated he was not advised of his rights.

The evidence does not make clear whether the police entered the appellant’s residence with Mrs. Hollenquest’s consent. This is cleared up somewhat by the testimony of Detective Ed Munson at trial. He testified that he identified himself to Mrs. Hollenquest, advised her that he had an arrest warrant for the appellant, and stepped inside the residence after requesting her to let him in. Nevertheless, the fact that the police had an arrest warrant, they had reason to believe the appellant was inside, and they knocked and announced their intentions made unnecessary the need for obtaining consent to enter the premises. Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980); United States v. Gaultney, 606 F.2d 540 (5th Cir. 1979); Cf.: Conner v. State, Ala.Cr. App., 382 So.2d 601, cert, den., Ala., 382 So.2d 605 (1980), (police armed with search warrant gained entry by kicking in the front door after knocking and announcing).

Once inside the house the police contend they asked the appellant where his clothes were and that he pointed them out and gave them permission to take them. The evidence for the appellant was directly contra.

Consent is a well recognized exception to a warrantless search and seizure. Daniels v. State, 290 Ala. 316, 276 So.2d 441 (1973). Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 26 L.Ed.2d 854 (1973) and Bumper v. North Carolina, 391 U.S. 543, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968) require that it must be determined from the totality of the circumstances whether an individual subjected to a search was submitting to police authority or consenting. Gass v. State, Ala.Cr.App., 372 So.2d 904 (1979).

The trial court in this instance chose to believe the testimony of Officer Smith. In making this ruling the trial court noted that the appellant and his wife candidly testified that they participated in the perpetration of a falsehood and that the appellant had previously been convicted of a crime involving moral turpitude, thereby affecting his credibility as a witness.

The law in Alabama is well settled that it is the duty of the trial court to resolve any conflict in the testimony and not within the province of this court. Snipes v. State, 50 Ala.App. 139, 277 So.2d 413 (1973). The trial court was in a better position to judge the demeanor of the witnesses. Payton v. State, 47 Ala.App. 347, 254 So.2d 351 (1971). We find no error in this instance.

After having searched the record for error and finding none, this case is due to be and is hereby affirmed.

AFFIRMED.

All the Judges concur.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      . Carnal knowledge.


text:
    Ex parte Luther HOLLENQUEST. (Re: Luther Hollenquest v. State of Alabama).
    80-109.
    Supreme Court of Alabama.
    Feb. 27, 1981.
   ADAMS, Justice.

WRIT DENIED — NO OPINION.

TORBERT, C. J., and FAULKNER, AL-MON and EMBRY, JJ., concur.


author: LEIGH M. CLARK, Retired Circuit Judge.

text:
    Willie Fred ALEXANDER v. STATE.
    6 Div. 171.
    Court of Criminal Appeals of Alabama.
    Oct. 7, 1980.
    Rehearing Denied Oct. 28, 1980.

      E. Calhoun Wilson, Tuscaloosa, for appellant.
    Charles A. Graddick, Atty. Gen., and Samuel J. Clenney, III, Asst. Atty. Gen., for appellee.
   LEIGH M. CLARK, Retired Circuit Judge.

This is an appeal from a denial of appellant’s petition for writ of error coram nobis, in which he prayed for a new trial of a case in which he was convicted of murder in the first degree, which was affirmed on June 15 and rehearing denied August 24, 1976. Alexander v. State, 337 So.2d 99. The petition was presented pro se and filed on March 7,1979. On May 23, 1979, the State filed a motion to dismiss the petition. The petition was set for hearing on August 15, 1979, at which hearing defendant appeared and was represented by the same counsel who represented him on appeal in Alexander v. State, supra, and who represents him on this appeal.

Notwithstanding the vagueness of the petition, it is to be gleaned therefrom that petitioner’s complaint was chiefly to the effect that he was insane at the time of the alleged crime, that he pleaded not guilty and not guilty by reason of insanity upon his arraignment, but that either the first attorney, the public defender for Tuscaloosa County, or the second attorney representing him in the trial court, Mr. Louis Borghese, or both, failed to utilize to his benefit his plea of not guilty by reason of insanity. On the hearing of the petition, the testimony of the petitioner and the testimony of the two attorneys were presented.

We are indebted to the trial judge for his resume of the testimony, governing principles of law, and the reasons that persuaded him to render the judgment from which this appeal is taken, as shown by the following part of the court's “Order”:

“IT IS THE FINDING OF THE COURT, after hearing all of the testimony, reviewing the records of this Court, including the record of the trial and appeal of the original case made a basis of the petition herein, and observing the demeanor of the witnesses that the evidence presented by the Petitioner does not support the allegations made in his Petition.
“This Court finds that Petitioner was represented by able and competent counsel whose representation was not pro forma. Powell v. Alabama, 287 U.S. 45 [, 53 S.Ct. 55, 77 L.Ed. 158] (1932). Petitioner was ably defended by counsel during a long, involved trial which was not a farce, a mockery of justice or shocking to the conscience; nor was the representation of his counsel perfunctory, in bad faith, a sham, pretense or without opportunity for conference and preparation. Williams v. Beto, 354 F.2d 698 (5th Cir. 1965); Lewis v. State, 367 So.2d 542 (Ala.Cr.App.1979).
“The evidence and records show that at arraignment prior to his trial, Willie Fred Alexander, was represented by members of the Public Defender’s Office of Tuscaloosa County, Alabama. During the arraignment pleas of not guilty and not guilty by reason of insanity were entered to protect the accused who was charged with Murder in The First Degree. These pleas were entered routinely without a factual investigation and without any evidence of insanity or incompetence in the past of the accused because not to enter the plea of not guilty by reason of insanity could constitute a waiver under Alabama procedure, § 15-16-1, Code of Alabama (1975); Baker v. State, 209 Ala. 142, 95 So. 467 (1923); and the entering of such a plea subject to ascertaining whether or not any justification exists for the plea causes no harm. The entering of such a plea at arraignment and subsequent withdrawal or abandonment of the plea is common practice, particularly in homicide cases or appointed counsel cases. “The evidence demonstrates that the Petitioner’s later-appointed counsel conferred with Petitioner both in Tuscaloosa and in Birmingham where Petitioner was incarcerated pending trial on another Murder charge. Numerous witnesses were subpoenaed for the defense. The record demonstrates more than adequate representation with more than sufficient preparation.
“At no time did Petitioner’s competency to stand trial or Petition’s sanity, either at the time of the trial or at the time of the charged offense, come into question in the minds of the Public Defenders or the appointed trial counsel. There was a complete lack of any evidence of past mental treatments or anything else to put one on notice of possible mental incompetency or insanity. Defense counsel in this case was exceptionally capable of evaluating the Petitioner’s actions in view of his education in the mental health field. “This Court is simply unable to find anything in the records or the evidence presented to indicate other than full, adequate representation of Petitioner throughout his trial and the preparations therefor.
“THEREFORE, IT IS THE ORDER AND JUDGMENT OF THE COURT, that the Petition is due to be, and the same hereby is denied.
“This the 24th day of August, 1979.”

Our view of the evidence and the applicable principles of law corresponds with the view expressed by the trial court. Its judgment should be affirmed.

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

AFFIRMED.

All the Judges concur.


text:
    Ex Parte Willie Fred ALEXANDER. (Re: Willie Fred Alexander v. State of Alabama).
    80-127.
    Supreme Court of Alabama.
    Feb. 27, 1981.
   ADAMS, Justice.

WRIT DENIED — NO OPINION.

TORBERT, C. J., and FAULKNER, AL-MON and EMBRY, JJ., concur.