author: EMBRY, Justice.

text:
    James A. McPHERSON, Conrad Freeman, Donald C. Smith, Ernest A. Rouse, and Edith C. Vaughan, as members of and constituting the Personnel Board for Mobile County, Alabama; and William F. Vickery/Intervenor, v. Lambert MIMS, Robert B. Doyle, and Gary Greenough, as members of and constituting the Board of Commissioners of the City of Mobile, a Public Body Corporate.
    79-279.
    Supreme Court of Alabama.
    June 20, 1980.
    Mylan R. Engel and John Grow, Mobile, for appellants.
    Fred G. Collins and Michael S. McNair, Mobile, for appellees.
   EMBRY, Justice.

This is an appeal from a summary judgment entered in behalf of the City of Mobile which dismissed the petition for declaratory judgment of the Personnel Board of Mobile County, Alabama, that sought to enforce its order requiring the City of Mobile to put intervenor, William F. Vickery, back to work as a police officer.

Simply stated, the issue is whether under the facts of this case, a pertinent rule of the Mobile County Personnel Board, and applicable law, Vickery effectively withdrew his resignation from employment by the City and was entitled to reinstatement.

Vickery was employed by the City of Mobile as a police officer and his employment was governed by the Merit System administered by the Mobile County Personnel Board. On the date shown Vickery executed the following document:

“March 16, 1979
“TO: Chief of Police
“FROM: Officer William Vickery
“Please accept this as my resignation from Mobile Police Department, effective at the end of my tour of duty on March 30, 1979.
“As I have given the necessary two weeks notice, I hope my name will remain in good standing with the Mobile County Personnel Board.
“Respectfully,
“s/ William F. Vickery
Officer William Vickery
Badge # 131”

On the date shown the members of the City Commission of Mobile directed the following letter to the person indicated thereon with a copy of their letter to Vickery attached:

“March 21, 1979
“Mr. Bernard M. Richardson, Jr.
Personnel Director
“Dear Mr. Richardson:
“Attached please find letter of resignation from officer William Vickery, Mobile Police Department, to become effective at the end of his tour of duty on March 30, 1979.
“As Officer Vickery is giving the required notice, we respectfully request that his resignation be accepted in good standing.
“Very truly yours
“s/ Lambert C. Mims
Mayor
“s/ Gary A. Greenough
Commissioner
“s/ Robert B. Doyle, Jr.
Commissioner
“RBD:r
Att.
cc: Chief Donald M. Whittle
Mrs. Agnes Whiteside
Budget”
“March 21, 1979
“Officer William Vickery
Mobile Police Department
“Dear Officer Vickery:
“We have received your letter of resignation. In view of the results of the Internal Affairs Investigation, file # IAU 508, based upon the complaint of W. C. Porter, we hereby accept your resignation. We will recommend that this resignation be accepted in good standing; but at the same time will oppose your being allowed to be placed on the reemployment list for a police officer in the City of Mobile.
“Very truly yours,
“s/ Gary A. Greenough
Mayor [Sic]
“s/ Lambert C. Mims
Commissioner [Sic]
“s/ Robert B. Doyle, Jr.
Commissioner
“RBD:r
cc: Mr. Bernard M. Richardson, Jr.
Chief Donald M. Riddle”

Subsequently, the Personnel Director sent the following letter to the City Commission:

“March 22, 1979
“Board of City Commissioners
City Hall
Mobile, Alabama
“Gentlemen:
“Re: Resignation of William Vickery
“In accordance with your letter of March 21, 1979, we are posting our records to show the resignation ‘In Good Standing’ of Mr. William Vickery, Police Officer, I SWAT, with the City of Mobile Police Department, effective March 31, 1979.
“Sincerely
“Bernard M. Richardson, Jr.
Personnel Director
“BMR/mos
cc: Mr. Patrick W. Kelly
Chief Donald M. Riddle
Mr. William Vickery”

Later, Officer Vickery sent the following letter to the Mobile City Commission:

“William F. Vickery
Badge 131
Mobile City Police Department
Mobile, Alabama
March 29, 1979
“Mobile City Commission
P. 0. Box 1327
Mobile, Alabama
“Attention: Commissioner Robert B. Doyle
“Gentlemen:
“This is to advise that I am withdrawing my letter of resignation, dated March 16, 1979, submitted to you through Chief Donald M. Riddle. My action comes after careful consideration. At the time of the submission of my letter, I was under extreme mental pressure due to an impending domestic matter.
“I wish to continue to serve as an officer on the Mobile Police Force as law enforcement is my choice career and I believe I can continue to render effective service to the Department, the city and the citizens of Mobile.
“Yours very truly,
“s/ William F. Vickery
William F. Vickery
Badge 131
“cc: Donald Riddle, Chief of Police
Marvin Richardson
“P.S. Since his attempted resignation was not accepted according to the rules of the Personnel Board, I feel that the resignation is ineffective.
“JG”
[The initials “JG” quite obviously are those of one of the attorneys for the Personnel Board: John Grow.]

This was followed by a letter to the City Commission from the Personnel Director:

“March 30, 1979
“Board of City Commissioners
City Hall
Mobile, Alabama
“Gentlemen:
“I am in receipt this date of a letter from Police Officer William F. Vickery withdrawing his letter of resignation dated March 16, 1979.
“The Mobile County Personnel Board has consistently held that an employee wishing to withdraw a letter of resignation has that privilege and may do so prior to the effective date of his recognition. Inasmuch as the effective date of his resignation was to be March 31, 1979, I am hereby posting our records accordingly.
“Very truly yours,
“Bernard M. Richardson, Jr.
Personnel Director
“BMR/mos
cc: Chief Donald M. Riddle
Mr. Patrick W. Kelly
Mrs. Agnes Whiteside
Mr. William F. Vickery
be: Mr. John Grow”

After withdrawing his resignation Officer Vickery attempted to report for duty, but was not permitted to go back to work. The City took the position that it had unconditionally accepted the resignation prior to its withdrawal and that Vickery was not entitled to reinstatement.

Then, before the petition for declaratory judgment was filed, the personnel director, acting for the Board, sent the following letter to the Commission:

“April 10, 1979
“Board of City Commissioners
City Hall
Mobile, Alabama
“Gentlemen:
“Re: Mr. William F. Vickery
“At a special meeting and Public Hearing held this morning, the matter of the position you have chosen to assume concerning the withdrawal of the resignation submitted by Mr. William F. Vickery, Police Officer II, was presented to the Mobile County Personnel Board. In view of prior precedent and recent Supreme Court rulings, the Board asked me to direct this correspondence to you advising you that you should call Mr. Vickery to work immediately and that he should suffer no loss of emoluments since the last day you permitted him to work which I understand was March 31, 1979.
“Sincerely yours,
“Bernard M. Richardson, Jr.
Personnel Director
“BMR/rku
CC: Chief Donald M. Riddle
Mr. Patrick W. Kelly
Mr. William F. Vickery”

The pertinent rule of the Personnel Board of Mobile County is No. 3.10:

“RESIGNATION: 3.10 An employee who wishes to resign from the service in good standing shall submit his resignation in writing to his Appointing Authority or department head not less than 80 work hours, for those employees on a forty (40) hour work week, and for those employees whose work week is based on the average work week of 56 hours, they must give 112 work hours notice before resignation can be in good standing. The Appointing Authority shall endorse thereon his evaluation of the employee’s service and forward the same to the Director forthwith. Any employee who leaves the service without giving notice as required herein shall be ineligible for reinstatement, except that, under unusual conditions, the requirements of the foregoing rule may be waived when, in the judgment of the Director, the circumstances warrant such action.”

This case is governed by City of Dothan v. Lucas, 47 Ala.App. 336, 254 So.2d 341 (1971), which relied on State ex rel. Almon v. Fowler, 160 Ala. 186, 48 So. 985 (1909).

It is apparent from the letter of 21 March 1979 from the Commissioners to the Personnel Board that the City recognized that Vickery’s resignation would be effective prospectively on 30 March 1979. This is obvious, in spite of its contention that, by the terms of the letter of 12 March 1979 to Vickery, his resignation was unconditionally accepted effective the date of that letter and therefore his withdrawal of resignation was ineffective. The position of the City is not tenable under the principles laid down in Lucas, relying on Almon.

Furthermore, although we need not here decide this issue, it is questionable whether the acceptance of his resignation was effective in light of the provision in Rule 3.10:

“ * * * The Appointing Authority shall endorse thereon his evaluation of the employee’s service and forward the same to the Director forthwith. * * ”

For the reasons disclosed by the documents set out, under the authority of City of Dothan v. Lucas, supra, and on the record in this case, summary judgment of dismissal of this action is due to be reversed and remanded for further proceeding in accord with this opinion.

REVERSED AND REMANDED WITH INSTRUCTIONS.

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


source: Caselaw Access Project

author: SHORES, Justice.

license: Public Domain

text:
    M. Wayne WHEELER, as guardian ad litem for the unborn descendants of Robert I. Ingalls, Sr. v. FIRST ALABAMA BANK et al. Ellen Gregg SHOOK, by and through her duly appointed guardian ad litem v. FIRST ALABAMA BANK OF BIRMINGHAM et al. Samuel Marks BOYKIN, III, individually and by and through his duly appointed guardians ad litem, Alex W. Newton and James L. North v. FIRST ALABAMA BANK OF BIRMINGHAM et al.
    Nos. 78-800, 78-809 and 78-813.
    Supreme Court of Alabama.
    June 27, 1980.

      M. Wayne Wheeler and J. H. Crow, III, Richard S. Riley, H. L. Ferguson, Jr., and Samuel H. Frazier, of Spain, Gillon, Riley, Tate & Etheredge, Birmingham, for appellant Ellen Gregg Shook.
    Alex W. Newton of Hare, Wynn, Newell & Newton, James L. North of North, Has-kell, Slaughter, Young & Lewis, Birmingham, for appellant Samuel Marks Boykin, III.
    William Bew White, Jr. and Hobart A. McWhorter, of Bradley, Arant, Rose & White, Birmingham, for appellee Barbara I. Shook.
    Reid B. Barnes and John E. Grenier of Lange, Simpson, Robinson & Somerville, Birmingham, for appellee First Alabama Bank of Birmingham.
    J. Michael Rediker of Ritchie, Rediker & Warren, Birmingham, for appellee Elesa-beth Ingalls Gillet.
    A. Key Foster, Jr. and Linda W. Knight of Baleh, Bingham, Baker, Hawthorne, Williams & Ward, Birmingham, for appellee Ingalls Iron Works Co.
   SHORES, Justice.

On December 30,1976, the First Alabama Bank of Birmingham (the bank) filed in the Circuit Court of the Tenth Judicial Circuit a petition for partial settlement of Ingalls Trusts B, C, D, E, and F. Thereafter, claims were filed on behalf of the sons of one of the primary beneficiaries of those trusts, Elesabeth Ingalls Gillet, and the daughters of the other primary beneficiary, Barbara Ingalls Shook, asserting that the Boykin boys and Shook girls were present beneficiaries of the Ingalls trusts. Those proceedings resulted in the opinion by this Court styled Wheeler v. First Alabama Bank of Birmingham, 364 So.2d 1190 (Ala.1978).

In that case, this Court held that Mrs. Shook and Mrs. Gillet are entitled to receive distributions of principal as well as income of the various trusts and are presently the sole primary beneficiaries of the Ingalls trusts.

Thereafter, the trial court set the matter for hearing with respect to the petitions and requests for partial settlement and approval of the accounting of the trustees of the Ingalls trusts. M. Wayne Wheeler, as guardian ad litem for the unborn descendants of Robert I. Ingalls, Sr., filed an answer which contained a prayer for affirmative relief charging the trustees with breach of fiduciary duty in making discretionary payments to Mrs. Shook and to Mrs. Gillet under Trusts E and F.

By order dated April 23, 1979, the trial court approved the accounting of the trustees including a full and final distribution of Trust C and the discharge of the trustees with respect to Trust C. From that order, Wheeler, as guardian ad litem, and Samuel Marks Boykin, III, appealed. Boykin v. First Alabama Bank, 384 So.2d 10 (Ala.1980).

At this stage of the proceeding, Mrs. Shook filed a motion for division of the Ingalls trusts. Richard S. Riley, guardian ad litem for one of the Shook girls, the other having reached majority, filed a motion in opposition to Mrs. Shook’s motion for division as did attorneys for the Boykin boys. Wheeler filed an objection as guardian ad litem for the unborn heirs of Robert I. Ingalls, Sr. Mrs. Gillet then filed a cross-claim and counterclaim asking for termination of her half of the Ingalls Trusts B, D, E, and F.

A hearing was held on the merits of the Shook and Gillet motions, and at the conclusion of the hearing, the trial court entered its order which is appealed from here. That order includes the following findings:

(1) That the court had jurisdiction of the motions of Mrs. Shook and Mrs. Gillet.

(2) That all parties had proper notice and had joined issue on the motions and were presently represented in court and had reasonable opportunity to present evidence.

(3) That Mrs. Shook and Mrs. Gillet are both over the age of thirty-five years and are competent.

(4) That all four trusts contain express language providing authority for both a division of the trusts into two equal shares and, as to the one-half share of each trust allocable to Mrs. Gillet, for a termination of such one-half shares. All four trusts contain language clearly contemplating early termination, possible division and exercise of broad discretion by the then trustees or the then current income beneficiaries (Mrs. Shook and Mrs. Gillet). The applicable test for exercise of discretion was whether the action was in the best interests of the then current income beneficiaries of the trusts as opposed to consideration of the interests of any contingent or unborn beneficiaries.

(5) That there was no evidence of any fraud, bad faith, misbehavior, misconduct, arbitrariness, or abuse of authority on the part of Mrs. Shook, Mrs. Gillet, or the bank.

(6) That all trustees concur in the desire to have the four trusts, B, D, E, and F, divided into two equal shares. With respect to Mrs. Gillet’s request to have a terminating distribution made to her of her own one-half share, such request was not opposed by the remaining trustees and current income beneficiaries.

(7) That the current income beneficiaries (Mrs. Shook and Mrs. Gillet) and trustees, in the light of the ongoing litigation, acted in a reasonable and prudent manner in seeking court approval of the actions sought by the Gillet and Shook motions.

(8) That it was in the best interest of the parties, including both present living beneficiaries and any contingent beneficiaries and the trustees, that the Gillet and Shook motions be granted.

(9) That the court would exercise its equity jurisdiction to appoint successor trustees with respect to the divided trusts, as invoked by Mrs. Shook and Mrs. Gillet.

The court then appointed Mrs. Shook and the bank as trustees of the one-half shares set aside for Mrs. Shook and appointed Mrs. Gillet and the bank for the one-half shares of each trust set aside for Mrs. Gillet.

Each of these trust instruments has been before this Court before. Wheeler v. First Alabama Bank of Birmingham, 364 So.2d 1190 (Ala.1978). Each sets up a trust for the benefit of Elesabeth Ridgely Ingalls and Barbara Gregg Ingalls, whom the Court held in Wheeler to be the primary beneficiaries thereunder. The pertinent provisions of Trusts B, D, E, and F with which we are concerned on this appeal are as follows:

Trust B — “It is contemplated as and when each such beneficiary [Shook and Gillet] shall attain the age of twenty-one years there may properly be distributed to him or her twenty-five per cent of his or her proportionate share of said trust estate, and as and when he or she shall attain the age of twenty-eight years, an additional twenty-five per cent thereof, and as and when he or she shall attain the age of thirty-five years, the remaining fifty per cent thereof, but the Trustees shall not be bound by said schedule of distribution and may vary said ages and the percentages distributed. . . .

Trust D- — The provision for distribution is identical to that contained in Trust B above.

Trust E — “(n) The Grantor has considered carefully all of the provisions of the within Trust Indenture with counsel and declares the trust hereby created to be irrevocable; PROVIDED, however, that the adult beneficiaries hereunder at any time entitled to benefits herefrom, or in the event there are no adult beneficiaries, then the legally appointed guardians of any minor beneficiaries, shall have the power, with the consent and approval of the Trustees, to alter or amend this Indenture of Trust, or to terminate same subject to the proviso hereinafter contained, by an instrument in writing signed by them and approved by and delivered to the Trustees; AND PROVIDED FURTHER that no alteration or amendment shall be made which shall result in the withdrawal from the trust of any part of said trust estate except as hereinbefore provided for, or in any change of the enjoyment of the trust property or the proportionate share of any beneficiary thereof. . . . ”

Trust F — The provisions contained in Trust F are identical to those contained in Trust E above.

Both Trusts B and D contain the following language as well:

“Without limiting the discretion of the Trustees, they are hereby authorized, if in their sole judgment they deem it advisable, to distribute to any beneficiary from time to time sharing in the benefits of the within trust at any time after he or she shall have attained the age of twenty-one years, such part or parts of the proportionate share of the principal of said trust held in trust for him or her under the provisions of Section (b) hereof, as the Trustees may from time to time deem such beneficiary capable of wisely using or managing.”

Both Trust B and Trust D provide for a contemplated schedule of distribution of principal at the attainment of various ages (twenty-five per cent at age twenty-one, twenty-five per cent at age twenty-eight, and the remaining fifty per cent at age thirty-five); both beneficiaries, Mrs. Shook and Mrs. Gillet, are presently over the age of thirty-five. It is apparent, then, that had the trustees adhered to the contemplated schedule of distribution, these two In-galls trusts would have been fully distributed by now, but nothing in the instrument compels distribution to each beneficiary upon age thirty-five.

Each trust also contains the following language:

“In the event that any principal distribution is made to any beneficiary under the foregoing provisions of the within Section (c) hereof [Section (d) in the case of In-galls Trust D], the Trustees shall at the same time set apart for the benefit of all other beneficiaries then sharing in the benefits of said trust estate, in equal shares, per stirpes, other property constituting a part of the principal of said trust estate equivalent in value for each beneficiary per stirpes to the value of the property so distributed, and the Trustees shall thereafter hold such other property so set apart for each such other beneficiary in trust for the benefit of such other beneficiary as provided in Section (d) hereof.”

The question before us is whether or not the trial court erred in construing the trusts to permit termination.

The discretionary provisions for early termination are contained in each trust. In each instance, an early termination of the trusts may be had only with the consent of the trustees. The trustees of Trust B are Mrs. Gillet, Mrs. Shook, and First Alabama Bank; First Alabama Bank is the sole trustee of Trust D; Mrs. Gillet and the bank are sole trustees of Trust E; and Mrs. Gil-let, Mrs. Shook, and the bank are co-trustees of Trust F.

Trusts B and D contain no provisions relating to the vote necessary among trustees. Trusts E and F contain a provision in paragraph (i) of each which states:

“So long as there shall be more than two trustees acting hereunder the action of a majority of them shall control and be binding upon the trustees hereunder. After there shall be only two trustees acting hereunder, they shall act upon the concurrence of both.”

The appellants assert that Trust B may be terminated only upon the concurrence of all three trustees; Trust D may be terminated only with the bank’s consent, as the sole trustee; Trust E may be terminated only upon the unanimous consent of Mrs. Gillet and the Bank; and Trust F may be terminated only if a majority of the trustees, consisting of Mrs. Gillet, Mrs. Shook, and the bank, consent.

Some of the appellants contend that because the trust instruments do not specifically provide for a division of the trusts, the court had no power to order a division and contend that the power and .authority to terminate the trusts do not carry the power to divide. The trial court found that Trusts B and D did contain express language specifically recognizing the discretion of the trustees to make division of the trusts and to make partial terminating distributions. We must agree.

As we have previously indicated, Trusts B and D unequivocally provide for distribution of the entire corpus to Mrs. Shook and Mrs. Gillet at any time after they reach age thirty-five. Clearly, this power to totally distribute and thus cut off any contingent interests that the appellants might have in these trusts would permit a division and termination of the same.

Trusts E and F contain provisions which would allow the current income beneficiaries, Mrs. Shook and Mrs. Gillet, to alter the trusts; to amend the trusts; and to terminate the trusts. We must agree with the trial court that a simple division of the trusts into two equal shares falls within the powers of the current beneficiaries with the consent of the trustees. The following appears at 89 C.J.S. Trusts § 87(c)(2) (1955) at 892:

“Conversion of single trust into separate trusts. Under a reservation of power to alter a trust, the grantor and beneficiaries have been held empowered to convert a single trust into separate trusts for each beneficiary. Particular instruments amending the deed of trust to this effect have been held not open to the objection that the subject of the trusts was not adequately defined; and the fact that the trusts are kept in one fund does not necessarily defeat the intention of the parties and require the conclusion that there is but a single trust.
“Amount or proportion received. If a settlor who reserves the right to change or modify the amount or proportion to be received by any beneficiary can only reduce the amount of a share to a nominal or negligible amount, a beneficiary whose share is completely abolished cannot obtain relief in a court of equity; so, in effect, a reservation of the right to modify the amount or proportion each beneficiary is to receive includes the power to modify it so that one beneficiary receives no part of the trust estate.”

It is quite clear that the trusts involved here vest the current income beneficiaries with the right to alter, amend, or terminate the trusts with the consent of the trustees. The appellants, all of whom are conceded to be contingent beneficiaries, cannot complain when this power is exercised.

All of the appellants contend that the record is devoid of any evidence that the bank in its capacity as trustee has consented to the division and termination as ordered by the trial court. While it is true that there is no written specific consent signed by each of the adult beneficiaries and the bank as trustee to the division of the trusts into two equal shares and the termination of one share, the record is replete with evidence which supports the trial court’s conclusion that each of these parties has, in fact, consented. If there were any doubt that such is the case, that doubt is dispelled by express declarations of consent contained in the bank’s briefs in this appeal. The bank • took no appeal from the trial court’s finding that it had, in fact, consented to the termination of the trusts, and it, therefore, is from that point forward es-topped to deny that it had, in fact, consented.

While we agree with the appellants that the bank has an obligation under the trust instruments to exercise the judgment and discretion vested in it by the settlor, and cannot shirk that responsibility by passing the decision on to someone else, or to a court, we do not believe, given the context in which this issue arose in this litigation, that the bank was attempting to pass its responsibilities in this regard on to the court. It must be remembered that the bank invoked the court’s jurisdiction for the purpose of the approval of an accounting and a partial settlement of the trusts. Mrs. Shook filed her motion for division in that proceeding, and Mrs. Gillet subsequently filed her petition for termination. The court, having already acquired jurisdiction, proceeded to a hearing on these motions, with the active participation of the bank at all stages and, indeed, of all the parties to this litigation, and only after a full and complete hearing on these motions, entered its order, the subject of this appeal. We cannot agree with the appellants that in this context the bank has withheld or failed to give consent to the termination of these trusts within the meaning of the discretionary termination provisions thereof.

We have carefully considered all matters raised by the various parties to this appeal and are convinced that the judgment appealed from is due to be affirmed.

AFFIRMED.

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


author: SENTELL, Clerk.

text:
    OPINION OF THE CLERK, Supreme Court of Alabama.
    Opinion No. 26.
    Supreme Court of Alabama.
    June 30, 1980.
   SENTELL, Clerk.

Mr. W. Elsworth Haughton, Register of the Circuit Court for the Thirteenth Judicial Circuit of Alabama, Mobile, has submitted to me, as Clerk of the Supreme Court, pursuant to § 12-2-19(d), Code, 1975, the following question:

What, if any, charges should be made for signing the Register’s certificate of validation on the back of bonds provided in the judgment of court ordering that the Register execute such a certificate in certain proceedings filed in the court requiring the approval of court of a bond validation, as provided by law?

It is my opinion that the Register’s certificate of validation on the back of bonds provided in the judgment of validation is not a certification of a copy of a court record as provided by Rule 45, Alabama Rules of Judicial Administration, as amended November 30, 1977.

The part of amended Rule 45, pertinent to the question presented, reads as follows:

Rule 45: Costs for Certification of Court Records.
(a) A fee of twenty-five (25) cents per page shall be charged for copies of court records made by any clerk or register. A fee of $1.00 shall be charged by the clerk or register for each certification made to copies of court records.

A court record is a written, official and authentic memorial of all the acts and proceedings of a court of record in a case, terminating with the judgment, and intended to remain as a permanent record. See Opinion of the Clerk, No. 9, October 25, 1977, Ala., 351 So.2d 568.

A copy is a complete reproduction of the original. See Opinion of the Clerk, No. 9.

§ 6-6-756, under Article 17, Validation of County, City, Etc. Obligations, and § 11-81-225, under Article 7, Validation of Bonds Prior to Issuance, Code 1975, read as follows:

Obligations validated under the provisions of this article shall have stamped or written thereon by the proper officers of such unit the words, “Validated and confirmed by a judgment of the Circuit Court of_County, State of Alabama, Entered on the _ day of -, 19—,” which shall be signed by the Register or Clerk of the Circuit Court in which the judgment was entered, and such entry shall be original evidence of such judgment in any court in this state.

It is my opinion that Rule 45, as amended November 30, 1977, does not authorize a charge of $1.00 for certificates of judgment. See Opinion of the Clerk, No. 9.

The bonds referred to in Mr. Haughton’s inquiry are not a part of the proceedings terminating in judgment. The certificate of validation is made after the rendition of judgment.

It is my opinion that the certificate of validation is not a certification made to copies of court records and that the fee of $1.00 provided in Rule 45, as amended, November 30, 1977, should not be charged for signing the Register’s certification of validation stamped or written upon the bonds.


author: BRADLEY, Judge.

text:
    L. Pat MILLER, Jr. v. Carol B. MILLER.
    Civ. 2053.
    Court of Civil Appeals of Alabama.
    March 26, 1980.
    Rehearing Denied April 30, 1980.
    M. H. Lanier and E. Cutter Hughes, Jr., of Lanier, Shaver & Herring, Huntsville, for appellant.
    Earl E. Cloud and Susan L. Cloud of Cloud & Cloud, Huntsville, for appellee.
   BRADLEY, Judge.

This is an appeal by the husband from a judgment requiring him to pay arrearages for alimony and child support and denial of modification petition.

The wife filed a petition for rule nisi and modification of the original divorce decree on November 9, 1978. The husband filed a motion for the judge to recuse himself on January 3, 1979. The wife filed objections to this motion and the trial court denied the motion to recuse on January 4, 1979.

Thereafter the husband filed an answer to the wife’s petition and a counterclaim for modification of the original divorce decree. The trial court held a hearing on the wife’s petition and the husband’s counterclaim on April 11, 1979. The trial court denied either party modification of the divorce decree and ordered the husband to pay arrear-ages of $3,900.00 and to pay $1,500 to the wife for attorney fees.

The husband’s primary contention on appeal is that the trial judge erred to reversal in failing to recuse himself from the case at bar. The husband argues that there was a clear appearance of bias and prejudice on the part of the trial judge. We disagree.

Canon 3C(1) of the Alabama Canons of Judicial Ethics provides in pertinent part:

A judge should disqualify himself in a proceeding in which his disqualification is required by law or his impartiality might reasonably be questioned, including but not limited to instances where:
(a) He has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding;

Recusal is required where facts are shown which make it reasonable for members of the public, or party, or counsel opposed to question the impartiality of the judge. Wallace v. Wallace, Ala.Civ.App., 352 So.2d 1376 (1977). However, recusal is not required by mere accusation of bias unsupported by substantial fact. Taylor v. Taylor, Ala.Civ.App., 359 So.2d 395 (1978).

In the instant case the only reason offered by the husband for the appearance of partiality on the part of the trial judge was based on alleged political differences between the husband and the trial judge. The husband contends that his support of a certain candidate for judge of the United States District Court for the Northern District of Alabama, for which position the trial judge in the instant case was also a candidate, led to political antagonism between the parties, and as a result the trial judge is prejudiced against him and in favor of the plaintiff. The plaintiff replied that she had never met nor was she acquainted with the trial judge.

We consider the evidence insufficient to support the contention that the trial judge was biased against the defendant. Consequently we do not believe that the trial judge’s impartiality can reasonably be questioned. Therefore we hold that the trial judge did not act improperly in refusing to recuse himself from the case at bar.

The husband further contends that the trial judge should have recused himself under Canon 3C(1) because he had personal knowledge of disputed evidentiary facts concerning the present case. In support of this contention, the husband says that someone told him that the trial judge made a statement to the effect that if the husband “could make a substantial contribution to Wallace’s Senatorial Campaign [he] should continue his support payments.” Again, we deem such evidence to be insufficient to warrant recusal of the trial judge.

The husband also argues that the trial court erred in failing to give him credit for social security payments made to the children because of his disability. As previously noted, the trial court heard argument in the present case on April 11, 1979. The husband testified at this hearing that each of his children would receive $74.08 per month in social security payments because of disability on his part. The payments were to begin in May of 1979.

Since the question of arrearages is not an issue on this appeal, our only concern is whether the trial court erred in not considering the social security payments to be made to the children because of the husband’s disability when it refused the husband’s request for modification of the child support award. See Binns v. Maddox, 57 Ala.App. 230, 327 So.2d 726 (1976).

First, we would point out that at the time of the modification hearing, i. e. April 11, 1979 no disability payments had been made to the children; therefore, the trial court could not have committed error in failing to consider an event that had not happened. Second, we note that the trial court did not say whether it did or did not consider the future social security disability payments to the children in denying the defendant’s request for modification; it merely said that it based its decision on the “law and facts.”

Part of the evidence in this case is the fact that the children will begin receiving social security benefits in the future; therefore we would have no problem in saying that the trial court did consider these payments in deciding the modification request because this “fact” was part of the evidence in the ease. Third, if the trial court did consider the future social security payments to the children in deciding to deny the modification petition, we cannot say that such decision was plainly and palpably wrong. Murphree v. Murphree, Ala.Civ. App., 366 So.2d 1132 (1979). As previously stated, the trial court based its decree on the “facts” of the case and we cannot say that those facts do not support the trial court’s decision.

For the reasons above set out, we do not find that the trial court erred in denying the husband’s petition for modification.

The wife’s request that she be given an attorney’s fee on appeal is granted, and she is awarded $500 as a reasonable fee for her counsel’s services.

AFFIRMED.

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


author: JONES, Justice.

text:
    Ex parte L. Pat MILLER, Jr. (Re: L. Pat Miller, Jr. v. Carol B. Miller).
    79-601.
    Supreme Court of Alabama.
    July 7, 1980.
   JONES, Justice.

WRIT DENIED — NO OPINION.

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


author: HOLMES, Judge.

text:
    Billy Wayne SMITH and Robert A. Lee v. Henry SPRINGSTEEN; Warren Walker, Occidental Fire and Casualty Company, jointly and individually; Aetna Insurance Company, a corporation; the American Road Insurance Company, as subrogee of Henry Springsteen.
    Civ. 1905.
    Court of Civil Appeals of Alabama.
    May 28, 1980.
    Rehearing Denied June 25, 1980.

      Leo L. Crain of Brutkiewicz & Crain, Mobile, for appellants.
    Robert T. Cunningham, Jr. of Cunningham, Bounds, Byrd, Yance & Crowder, Mobile, for appellees.
   HOLMES, Judge.

The plaintiff sued the defendant for damages to his truck as a result of the negligence of the defendant. The trial court entered a judgment against the defendant after the jury returned a verdict in favor of the plaintiff for $6,650. The defendant appeals and we affirm.

A review of the record reveals the following:

After the above mentioned collision occurred, the plaintiff’s insurer paid $3,480 to the plaintiff because of the plaintiff’s loss. As indicated above, the plaintiff then filed suit against the defendant. In addition, the plaintiff’s insurer filed a separate suit to recover the amount it had paid to the plaintiff.

The defendant then filed a motion pursuant to Rule 17(a), ARCP, to add the plaintiff’s insurer as a party-plaintiff in the plaintiff’s suit because the insurer was interested in the outcome of the case and was required to be joined as a party-plaintiff. This motion was granted by the trial court but the complaint was never amended to add the insurer.

Next, on motion by the plaintiff’s insurer, the two lawsuits referred to above and a third related case were consolidated for trial. Immediately preceding the trial, a stipulation was entered into between the plaintiff and its insurer whereby the insurer would be paid out of any judgment rendered in favor of the plaintiff. The trial court thereafter entered an order to this effect.

At trial the defendant moved to dismiss the plaintiff’s cause of action for failure to add the plaintiff’s insurer as a party-plaintiff. The trial court denied this motion.

There are other plaintiffs in this lawsuit. However, in view of the decision in this case their respective interests are immaterial to this appeal.

The defendant through able counsel contends the trial court committed numerous errors which require reversal.

I

The defendant urges error regarding certain evidentiary rulings. Specifically, the trial court refused to allow the defendant to cross-examine or introduce into evidence the settlement and proof of loss between the plaintiff and plaintiff’s insurer. The defendant contends that since the amount of damage testified to by the plaintiff at trial was greater than the amount he settled for with his insurer, the defendant is permitted to show the amount paid by the insurance company to the original plaintiff.

We disagree. Proof that the plaintiff has been compensated for a loss by an indemnity insurer is inadmissible in this instance. Such benefits from a collateral source should not be taken into account in computing the plaintiff’s recoverable damages and the admission of such collateral source payments would be prejudicial. See, Gribble v. Cox, Ala., 349 So.2d 1141 (1977); Carlisle v. Miller, 275 Ala. 440, 155 So.2d 689 (1963).

The defendant does not contend that this evidence is admissible in computing the plaintiff’s damages, but contends it is admissible for the purpose of showing the inconsistency between what the plaintiff claims his damages were and the amount he received from his insurer for the loss.

However, this court is committed to the rule of exclusion of collateral source payments. Gribble, supra. Thus, there is no error.

This exclusion is warranted by the availability of other evidence which is not prejudicial. In this instance, there was other evidence available on the issue of the value of the plaintiff’s vehicle that would not prejudice the plaintiff by its admission.

II

The defendant next urges error regarding the trial court’s failure to dismiss the plaintiff’s cause of action for failure to comply with the trial court’s order requiring the plaintiff to add its insurer as a party-plaintiff. The defendant alleges that he has been prejudiced in this instance because he was taxed with court costs and incurred additional legal fees as a result of the failure to add the insurer as a party-plaintiff and he had a judgment rendered against him in favor of the plaintiff’s insurer in addition to the judgment in favor of the plaintiff.

Rule 17(a), ARCP, in pertinent part is as follows:

Real Party in Interest. Every action shall be prosecuted in the name of the real party in interest. .
In subrogation cases, regardless of whether subrogation has occurred by operation of law, assignment, loan receipt, or otherwise, if the subrogor no longer has a pecuniary interest in the claim, the action shall be brought in the name of the subrogee. If the subrogor still has a pecuniary interest in the claim, the action shall be brought in the names of the subrogor and the subrogee.

The purpose of the above rule is to protect the defendant from subsequent action by the party actually entitled to recover and ensure that a judgment will have res judicata effect. U-Haul Co. v. Turner, Ala. Civ.App., 355 So.2d 384 (1978).

In this instance, the plaintiff’s insurer was before the court since the cases were consolidated for trial. In addition, as indicated above, the trial court entered an order which adopted the stipulation of the plaintiff and the plaintiff’s insurer. That is, the court ordered the plaintiff’s insurer to be paid out of any recovery of the plaintiff in his suit. Thus, the defendant was protected from any claim for double recovery. U-Haul Co., supra. See also, Dudley v. Smith, 504 F.2d 979 (5th Cir. 1974); Wright & Miller, Federal Practice and Procedure: Civil § 1546.

In any event, Rule 45, ARAP, prohibits this court from reversing in this instance unless it appears that the error complained of has probably injuriously affected the substantial rights of the defendant. This prohibition extends to any matter of pleading such as Rule 17(a). See, Spencer v. Malone Freight Lines, Inc., 292 Ala. 582, 298 So.2d 20 (1974). As indicated, we perceive no prejudicial error in view of the facts to the defendant by the trial court’s mere failure to add plaintiff-insurance company as a party-plaintiff to original plaintiff’s lawsuit.

The defendant however contends he was injured because he incurred court costs and attorney’s fees. We note that the plaintiff’s insurer filed suit before the defendant moved to have the insurer named as a party-plaintiff. Thus, the expenses complained of would have been incurred regardless of whether the insurer was named as a party-plaintiff. In any event, these costs are not the sort of legal injury contemplated by Rule 45, ARAP. The defendant would have other legal remedies, if appropriate, for any wrongful action on the part of the insurer.

The contention that there is a judgment in favor of the insurer in addition to the amount of the judgment in favor of the plaintiff is likewise without merit. The order, as indicated above, clearly says that the insurer is to be paid out of the recovery of the plaintiff.

Considering all of the above, there was no error requiring reversal for failure to add the insurer as a party-plaintiff. Rule 45, ARAP.

III

The defendant next contends that the trial court erred in failing to dismiss the property damage claim of the plaintiff because there was no evidence of the value of the truck after it was damaged.

In a ease such as we have here, the measure of damages is the difference between the reasonable market value before the accident and the reasonable market value after the accident. If the vehicle was a total loss after the accident, the measure of damages is the reasonable market value before, less salvage value after. Hunt v. Ward, 262 Ala. 379, 79 So.2d 20 (1955); Parker v. Muse, 47 Ala.App. 84, 250 So.2d 688 (1971).

In this instance, the plaintiff testified that his truck was wrecked and he couldn’t repair it and that he got nothing out of the truck except salvaging the dump body. That is, after the wreck the plaintiff sold as salvage the rear end of the truck for $2,500. In addition, the plaintiff introduced photographs showing the extent of the damage. We think that this is sufficient evidence to establish that after the collision the value of the vehicle was $2,500. Hunt, supra; Parker, supra. Thus, there is no error.

IV

The defendant’s fourth contention is that the trial court erred in its oral charge to the jury regarding the proper measure of damages. Specifically, the defendant contends the trial court erred in charging the jury that the damage would be the difference between the before and after value. The defendant contends that the jury should have been charged to “subtract” the after value from the before value because the jury would not know whether to add the values or subtract them.

In response to the above objection, the trial court stated that “. . .1 said the difference between the before and after value. That would be subtracting, wouldn’t it?”

As indicated above, the measure of damages in this instance is the difference between the before and after value. Hunt, supra; Parker, supra. Thus, the objection of the defendant is without merit because his statement of what the trial court charged is a correct statement of law and would be a proper charge. Thus, there is no error.

We would be remiss in not commenting that our review of the trial court’s oral charge as contained in the record reveals that the trial court in fact did not use the word “difference.” He stated as follows:

You determine those damages by finding what the original market value of his truck was immediately before the accident and what it was immediately after the accident.

However, under Rule 51, ARCP, the complaining party must point out the error of the trial court with specificity so that the trial court is made aware of its error. In this instance the defendant did not properly point out any error. As seen from above, the defendant was objecting to what would be a correct statement of law and a proper charge. In this instance, the defendant did not sufficiently make the trial court award of any error and nothing is presented for this court to review. Leavell v. Nolin, Ala. Civ.App., 342 So.2d 1323 (1977).

V

The defendant argues in brief that the trial court committed reversible error in failing to give certain requested charges. We have carefully reviewed these charges and find no error.

The first refused charge is as follows:

I charge you that at the time of the accident plaintiff was under a duty to keep a lookout for his own safety. .

We note that the refusal of a written charge is proper when it is abstract and misleading. Burke v. Thomas, 282 Ala. 412, 211 So.2d 903 (1968). In this instance, the requested charge is clearly abstract and misleading because there is no indication as to what the plaintiff is to be on the lookout for in regard to the issues in the case. Thus, there is no error. Burke, supra.

The defendant’s second refused charge is as follows:

The court charges the jury that the following is a correct statement of the law of Alabama: No person shall willfully fail or refuse to comply with any lawful order or direction of any police officer invested by law with authority to direct, control, or regulate traffic.

Such a charge which merely states an abstract proposition of law without instructing the jury on its effect upon issues in the case may be refused without error. Mobile Press Register, Inc. v. Padgett, 285 Ala. 463, 233 So.2d 472 (1970); 18A Ala. Digest Trial Key 248. Thus, there is no error in this instance because the charge does not cover its effect on the issues in the case.

VI

The plaintiff’s final contention is that the amount of the jury verdict is not supported by the evidence.

As indicated above, the evidence clearly reveals the amount of the plaintiff’s damage to be $5,500. This is, the plaintiff testified that his vehicle was worth $8,000. The plaintiff was able to sell the dump body as salvage for $2,500. Thus, the evidence supports a finding that the plaintiff incurred damages in the amount of $5,500 as a result of the accident.

When interest is considered, the amount of the verdict is supported by the evidence. Roe v. Brown, 249 Ala. 425, 31 So.2d 599 (1947).

This case is due to be affirmed.

AFFIRMED-.

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


text:
    Lina HUDSON v. Jon CHANCEY.
    Civ. 2172.
    Court of Civil Appeals of Alabama.
    May 28, 1980.
    Rehearing Denied June 25, 1980.

      Alice L. Anderson, Chancellor, for appellant.
    No brief for appellee.
   BRADLEY, Judge.

The appellant, Lina Hudson, is appealing from a lower court judgment dismissing her counterclaim against the appellee, Jon Chancey. We affirm.

Mr. Chancey filed a small claims action against Mrs. Hudson for $193.45 on November 15,1977. Mrs. Hudson filed an answer; however, on January 6,1978 a default judgment was rendered against her.

On January 20,1978 Mrs. Hudson appealed to the Dale Circuit Court demanding a jury trial. On February 22,1978 Mrs. Hudson filed a counterclaim against Mr. Chan-cey for malicious prosecution.

On November 26,1979 Mr. Chancey’s motion to dismiss the counterclaim was granted. In the same judgment the court allowed Chancey to take a non-suit on his complaint with Mrs. Hudson’s permission.

On December 24, 1979 Mrs. Hudson moved for a new trial on the basis that the counterclaim could not be dismissed unless Mrs. Hudson could not recover under any discernible circumstances. This motion was denied and an appeal was timely filed with this court on January 7, 1980.

The appellant raises two issues here. The first issue is whether the trial court erred in granting the dismissal of the counterclaim as appellant claims she could have recovered under the circumstances.

The second issue is whether the dismissal of the counterclaim denied appellant due process and equal protection of the law.

As to the first issue, appellant contends ARCP 18(a) and (b) support her position in this case.

Mrs. Hudson correctly notes that ARCP 18(a) and (b) allow a party to join as many claims, whether equitable or legal, or both, as she has against the opposing party. However, the trial court is correct in asserting Rule 18 does not apply to this particular case. Instead, ARCP 13(e) is more applicable.

This rule reads:

A claim which either matured or was acquired by the pleader after serving his pleading may, with the permission of the court, be presented as a counterclaim by supplemental pleading.

The trial judge, in dismissing the counterclaim, stated:

The Court is of the opinion that Rule 18 would not allow the opposing party to file a counterclaim against the plaintiff if the claim has not matured or is not cognizable before the. plaintiff’s suit is prose-, cuted to a final conclusion.
The Court is further of the opinion that it would have a chilling effect on the use of the Small Claims Court for the plaintiff who prevails in the Small Claims Court to be called upon to defend against a counterclaim for malicious prosecution on appeal to the Circuit Court before the original claim is brought to a conclusion adversly [sic] to the plaintiff.

In Kroger Co. v. Puckett, Ala.Civ. App., 351 So.2d 582 (1977), we noted the elements for malicious prosecution. These are: (1) institution or continuation of an original judicial proceeding, either civil or criminal; (2) by or at the instance of the defendant; (3) termination of such proceeding in the plaintiff’s favor; (4) malice in instituting the proceeding; (5) want of probable cause for the proceeding; and (6) injury or damage as the result of the prosecution’s complaint.

In the present case the proceeding had not terminated in appellant’s favor at the time she filed her claim asserting that Chancey had maliciously prosecuted his claim against her, and therefore the trial court did not err in dismissing her counterclaim for lack of maturity of the malicious prosecution action.

Finally, appellant says that the dismissal of her counterclaim denied her due process and equal protection of the law. However, these grounds for reversal were not presented in appellant’s motion for new trial or motion for reconsideration as same was treated by the trial court, and therefore are not reviewable here. Hughes v. Hughes, Ala.Civ.App., 362 So.2d 910, writ quashed, Ala., 362 So.2d 918 (1978). Notwithstanding the required disposition of appellant’s constitutional argument, such argument has no merit in fact.

The facts show that Chancey’s motion was presented in open court with both parties being represented by counsel. After the hearing the trial court ruled against the appellant. She then moved for a new trial on the ground that the dismissal was erroneous because there were circumstances which would permit her to prove her counterclaim. The trial court set the motion for hearing. After a hearing thereon, the court denied her motion for reconsideration and gave reasons for his decision. She appealed to this court.

The judgment of the trial court is affirmed.

AFFIRMED.

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


text:
    BLUE CROSS AND BLUE SHIELD OF ALABAMA, INC. v. Sarah J. HENDRIX.
    Civ. 2167.
    Court of Civil Appeals of Alabama.
    June 25, 1980.

      Stephen A. Rowe of Lange, Simpson, Robinson & Somerville, Birmingham, for appellant.
    William L. Utsey, Butler, for appellee.
   HOLMES, Judge.

The plaintiff sued defendant, Blue Cross and Blue Shield of Alabama, seeking to recover certain hospital and medical expenses alleged to be due under a group insurance contract. The learned trial judge on stipulated facts entered a judgment for plaintiff and denied defendant’s subsequent motion for new trial. Defendant appeals and we reverse and remand.

The dispositive issue is whether a coordination of benefits provision in plaintiff’s insurance policy exonerated defendant from primary liability for plaintiff’s expenses.

The record reveals the following: Plaintiff was a named insured under a group insurance policy with Blue Cross. Her husband was the named insured under what is termed the A. F. of L. — A.G.C. Building Trades Welfare Plan. This welfare plan, entered into as the result of a collective bargaining agreement, covered plaintiff as the dependent of her husband. Both the Blue Cross policy and the welfare plan were in full force and effect at all times relevant to this appeal.

Plaintiff’s Blue Cross policy contains a coordination of benefits (COB) provision which excludes from coverage the payment of any benefits that are payable under any other group plan, provided the other plan “is the primary plan as compared to this contract.” § V.12. Section V.12(a) further provides that the other plan shall be primary “if such group plan does not include a coordination of benefits or non-duplication provision.” It is undisputed the husband’s welfare plan does not contain such a provision.

During the years 1976 and 1977, plaintiff twice required hospitalization and treatment.

After the first of these incidents, Blue Cross paid benefits directly to the hospital. However, the husband’s welfare plan also paid benefits and the hospital refunded the money paid by Blue Cross. The welfare plan paid a total of $1,337.21 to the hospital and attending physician. At trial, plaintiff sought to recover $1,200 from Blue Cross as a result of this hospitalization.

Blue Cross paid no benefits after the second hospital confinement. However, the welfare plan paid a total of $1,348.62 to cover plaintiff’s expenses. Plaintiff sought to recover $1,282 from Blue Cross as a result of his second hospitalization.

As indicated, the trial judge found Blue Cross liable despite the payment of benefits by the welfare plan and awarded plaintiff a total of $2,920.30.

On appeal, Blue Cross does not contend plaintiff’s expenses were not covered if it is the primarily liable insurer. However, Blue Cross does argue that the COB provision in its policy operated to make the welfare plan primarily liable. That is to say, Blue Cross contends that because the husband’s plan lacked a COB provision, it became the “primary plan” under § V.12(a) of the policy.

Plaintiff, through able counsel who has favored this court with an excellent brief, counters with the argument that she paid premiums based upon the premise that her hospitalization expenses would be covered by Blue Cross. She contends Blue Cross is primarily liable since she is the named insured under the Blue Cross policy and is only covered as a dependent under her husband’s welfare plan. Put simply, she argues the COB provision should not be given effect under the facts at bar since such a result would render the policy unconscionable as contrary to all “reasonable expectations” of coverage.

At the outset, we note that neither party has cited us to authority precisely on point. However, it appears that COB provisions such as the one involved in this case have been given at least implied judicial sanction.

Thus, in American Family Life Assur. Co. v. Blue Cross of Florida, Inc., 486 F.2d 225 (5th Cir. 1973), a company which issued group policies lacking COB provisions challenged the validity of certain group policies issued by Blue Cross which contained such provisions, alleging the Blue Cross policies violated federal anti-trust laws. In addressing this issue, the Fifth Circuit Court of Appeals upheld the validity of the challenged COB provisions.

There, as here, the state commissioner of insurance had approved the writing of group insurance plans containing model COB provisions. See, Departmental Regulation No. 56, adopted pursuant to § 27-2-17, Code of Ala. 1975. In explaining the effect of such provisions, the court noted they are applied only if there is coverage under two or more policies which would result in payment for more than 100% of the claimant’s expenses, and said:

COB simply means that if the same hospital, surgical or medical risk is covered by more than one insurance carrier then the company insuring with a COB provision in its policies may reduce the amount of its payment by that payable from such other coverage. In other words, the claimant may not recover twice for the same expenses. . . . When only one of the policies has a coordination of benefits clause, then the carrier without a coordination of benefits clause . would always be deemed primary. (Emphasis supplied.) 486 F.2d at 226.

Likewise, in Blue Cross and Blue Shield of Alabama v. Bowen, 57 Ala.App. 192, 326 So.2d 754 (1976), this court held that where an insurer whose policy contained a COB provision paid a claim of the insured without knowledge that another insurer was primarily liable due to the lack of a COB provision in its policy, there was no waiver of the right to refund on account of the payment.

Implicit in this decision is the recognition of the validity of the COB provision challenged in this case. Indeed, the facts in Bowen are very similar to those in the present case. There too, there was dual coverage under the husband’s union negotiated welfare plan which lacked COB provisions and under the wife’s group Blue Cross policy which contained COB provisions apparently identical to those presently being considered.

However, plaintiff would distinguish Bowen on one fact. There, it was the husband who required hospitalization. He was therefore the named insured under the welfare plan which ultimately paid the claim as opposed to having coverage as a dependent or spouse. In essence, plaintiff argues the welfare plan was not primarily liable because it lacked COB provisions, but because the husband was the named insured. Applying that rationale to this case, plaintiff concludes Blue Cross is liable.

We cannot agree and we view this argument as putting forth a distinction without a difference. In Bowen, this court clearly applied that part of the COB provision which allowed the insurer to make payments when there is a dispute as to primary and secondary liability without waiving the right to repayment. In so ruling, we referred to that part of the COB provision in Bowen which was apparently identical to § V.12(a), and which made the plan without a COB provision primary. We thus, at least impliedly, approved this as the proper test in determining primary versus secondary coverage.

Today, we make that approval explicit and reject plaintiff’s contention that she has paid for coverage and is entitled to it. Her policy clearly states benefits will not be payable if there is another plan covering the claimed expenses and that plan is primary. It also clearly defines those circumstances which will make the other plan primary. To give plaintiff’s argument literal application on these facts would be to negate an insurance company’s ability to write exclusions into its policies. This we are not prepared to do.

What is more, one of the primary rationales behind the adoption of COB provisions is the elimination of the possibility of a double recovery and the concomitant higher premium costs. American Family Life Assur. Co. v. Blue Cross of Florida, Inc., supra. As indicated, the husband’s welfare fund has paid plaintiff’s expenses. To uphold the verdict against Blue Cross and therefore render § V.12(a) a nullity would be to grant exactly what COB provisions seek to prevent. Plaintiff could entertain no “reasonable expectation” of such an unjust enrichment. We see nothing unconscionable in allowing health insurance companies to limit their liability so that a claimant recovers only expenses actually incurred.

This case is due to be reversed and remanded.

REVERSED AND REMANDED FOR ENTRY OF A JUDGMENT NOT INCONSISTENT WITH THIS OPINION.

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


text:
    BARNETT BANK OF PENSACOLA v. Elvin MARABLE.
    Civ. 2237.
    Court of Civil Appeals of Alabama.
    June 25, 1980.
    C. Mike Benson of Haygood & Benson, Auburn, for appellant.
    Ernestine S. Sapp of Gray, Seay & Lang-ford, Tuskegee, for appellee.
   BRADLEY, Judge.

The plaintiff, Barnett Bank of Pensacola, sued the defendant, Elvin Marable, for $10,-000.00 on a contract of guaranty. The defendant gave the plaintiff a guaranty to secure payment of a promissory note executed to Robert T. Green. Mr. Green failed to pay the promissory note to the plaintiff when due and the plaintiff brought this suit pursuant to the guaranty of defendant. The trial court, sitting without a jury, found for the defendant and the plaintiff has appealed.

The only issue presented by this appeal is whether the trial court erred in determining that defendant was not plaintiff’s guarantor.

The guaranty agreement executed and signed by the defendant to the plaintiff provides in part as follows:

In consideration of your making advances, loans, or otherwise giving credit to Robert T. Green, III, Pensacola, Florida, (hereinafter referred to as borrower), the undersigned hereby guarantees to you and your successors and assigns, the payment of all moneys which shall at any time be owing to you from borrower, its successors or assigns, either directly or indirectly in an amount not to exceed $10,000.00.

Like other contracts, a guaranty is complete when the minds of the parties meet in mutual assent to the same things in the same sense. Huckaby v. McConnon & Co., 213 Ala. 631, 105 So. 886 (1925). The defendant testified that he knew that his agreement with the plaintiff was a guaranty. He also testified that he signed the guaranty to enable Mr. Green to obtain a loan from the plaintiff. The plaintiff’s loan officer testified that one of the reasons for extending credit to Robert Green was the guaranty agreement. The guaranty agreement was obtained from the defendant pri- or to the plaintiff making the loan to Mr. Green. Thus we conclude that there was a meeting of the minds between plaintiff and defendant. The defendant has made no allegation of fraud or misrepresentation; therefore the guaranty agreement is complete in all respects.

At trial the defendant did not attack the existence of the guaranty, but instead argued that he had been released from the guaranty. The defendant based his argument on a conversation he had with Robert Green. The defendant stated that he was told by Mr. Green that he (defendant) was released from the guaranty. However, the defendant was unable to produce a written release nor did he testify that he was told by the plaintiff that he was released from the guaranty agreement. The plaintiff’s loan officer testified that at no time had the bank executed a release to the defendant. We think the defendant’s reliance on the statements of Mr. Green are misplaced. The defendant’s liability as guarantor is to the plaintiff and not to Robert Green. Therefore Mr. Green was not in a position to release the defendant from his obligation.

As previously noted, the guaranty agreement executed by the defendant was valid in all respects, and after carefully examining the record, we do not find that the defendant has produced any evidence which would tend to defeat such agreement. Therefore we reverse the judgment of the trial court and remand the cause for entry of judgment not inconsistent with this opinion.

REVERSED AND REMANDED WITH INSTRUCTIONS.

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


author: BOWEN, Judge.

text:
    James R. OLKEWICZ v. STATE.
    4 Div. 780.
    Court of Criminal Appeals of Alabama.
    Feb. 26, 1980.
    Rehearing Denied April 1, 1980.

      Timothy B. Loggins, Opp, for appellant.
    Charles A. Graddick, Atty. Gen., Mary Jane LeCroy, Asst. Atty. Gen., for appellee.
   BOWEN, Judge.

The defendant was indicted and convicted for assault with intent to murder. Sentence was twenty years’ imprisonment.

The only issue raised on appeal is whether an acquittal of rape bars a subsequent prosecution for assault with intent to murder under the double jeopardy clauses of the state and federal constitutions where both charges arise from the same factual situation against the same victim.

The State’s evidence shows that the defendant physically assaulted and raped the victim. On several occasions he threatened to kill her if she did not comply with his demands. After being raped, the victim escaped from the defendant and managed to run a short distance before the defendant grabbed her by the hair, pulled her to the ground and began kicking and beating her “real bad”. The defendant ran away when a automobile came near.

Initially, we note that the plea of former jeopardy was timely even though it was filed after the defendant had pled not guilty to the indictment. Barnett v. State, 373 So.2d 1226, 1227 (Ala.Cr.App.), cert. denied, 373 So.2d 1230 (Ala.1979); Williams v. State, 348 So.2d 1113, 1115 (Ala.Cr.App.) cert. denied, 348 So.2d. 1116 (Ala.1977).

However the plea was properly overruled. “A plea of former jeopardy is unavailing unless the offense presently charged is precisely the same in law and fact as the former one relied on under the plea. Racine v. State, 291 Ala. 684, 286 So.2d 896 (1973). This doctrine is too well established to require a further recitation of authority.” Williams, 348 So.2d at 1115; Napier v. State, 357 So.2d 1001 (Ala.Cr.App.1977), reversed on other grounds, 357 So.2d 1011 (Ala.1978).

Rape and assault with intent to murder are, in substance and nature, completely different and separate crimes. Although both involve an assault, their requisite mental intents are different.

The crime of assault with intent to rape is a lesser included offense of the crime of rape because it includes all the elements of rape except consummation of the sexual act. Kelsoe v. State, 50 Ala.App. 378, 279 So.2d 549, cert. denied, 291 Ala. 786, 279 So.2d 552 (1973). However, assault with intent to murder is not a lesser included offense of rape for the reason that assault with intent to murder is not a necessary and elemental part of the crime of rape and it is not necessary to establish the crime of assault with intent to murder in an effort to make proof of rape. Generally, see annotations to Alabama Code Section 15-17-1.

Clearly, a defendant may not be convicted of both assault with intent to murder and assault with intent to rape for acts based on a single assault. Wilkerson v. State, 41 Ala.App. 265, 130 So.2d 348, cert. denied, 272 Ala. 712, 130 So.2d 350 (1961). However, this defendant has never been charged with assault with intent to rape. Additionally, here the victim was severely assaulted shortly after the rape and at a different location from where the rape occurred. Indeed, when the victim testified that the defendant raped her, defense counsel objected because “that’s not an issue in this trial”.

Consequently, we hold that the defendant’s prior acquittal for rape is not a bar to a prosecution for assault with intent to murder. We have searched the record as required by law and found no error prejudicial to the defendant. The judgment of the Circuit Court is affirmed.

AFFIRMED.

All Judges concur.


text:
    Ex parte James R. OLKEWICZ (Re: James R. Olkewicz v. State of Alabama).
    79-529.
    Supreme Court of Alabama.
    June 27, 1980.
   SHORES, Justice.

WRIT DENIED — NO OPINION.

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


author: TYSON, Judge.

text:
    Robert Earl OLIVER v. STATE.
    8 Div. 355.
    Court of Criminal Appeals of Alabama.
    June 17, 1980.

      Macon L. Weaver, Huntsville, for appellant.
    Charles A. Graddick, Atty. Gen., Samuel J. Clenney, III, Asst. Atty. Gen., for appel-lee.
   TYSON, Judge.

Robert Earl Oliver was charged by indictment with having a pistol in his possession or control after having been convicted of a crime of violence, to-wit, grand larceny. The jury found the appellant “guilty as charged,” and the trial court set sentence at four years imprisonment in the penitentiary. It is from the overruling of the appellant’s motion to exclude the State’s evidence made during trial and his motion for new trial, each asserting that there was no probable cause for believing that the appellant was about to commit a felony, nor did he commit a misdemeanor in the officers’ presence, therefore, there was no basis for stopping the appellant, patting him down and searching his person, that the appellant prosecutes this appeal.

Prior to trial the appellant filed a motion to suppress, asserting that the appellant had not committed a misdemeanor in the presence of the officers, nor was there probable cause to believe that the appellant was about to commit a felony, therefore, the stopping of the appellant by Huntsville Police Officer Steven Rousseau, patting him down, and searching his person on May 21, 1978, at 4223 Keith Street in Huntsville, was unlawful.

In support of this motion, Robert Earl Oliver testified that he had gone to the home of his friend, Leonard Parker, at 4223 Keith Street in Huntsville, to obtain a ride to his place of employment at the Diamond S Ranch at Lacey Springs in Morgan County where he worked on a farm. Upon arrival at the Parkers’ residence, he stated a number of people had already gathered there, there were two police cars and several police officers, and he walked up to the house and asked one of the officers if he could go inside. Oliver stated he went inside and observed his friend, Leonard Parker, who had been wounded in the arm and was lying on the floor, and a woman had been shot. He walked back outside and saw three black and white police cars. Oliver indicated he was wearing a pair of blue jeans and had on a jersey. He stated that his right hand was bandaged, and in a sling, because he had been thrown from a horse and injured his right hand a few days earlier. Oliver indicated that, as he came back outside the house, he heard some woman yell and suddenly Huntsville Police Officer Steve Rousseau stopped him, pushed him against the trunk of Mrs. Humphrey’s car, put his hand in Oliver’s pocket, and pulled out a pistol, then put handcuffs on him. Oliver stated he was then placed in a police car and taken downtown, then told he was under arrest, and later was told that he was charged with carrying a concealed weapon after a crime of violence. Oliver indicated that Officer Rousseau never showed him a search or arrest warrant, and he had not been involved in any way with the shooting inside the house at Keith Street, but had arrived on the scene after the officers had the premises secured. Oliver testified that he was not loud or boisterous and had not committed any offense whatever in the presence of the officers, nor did they have any reason to stop and search him.

On cross-examination, Oliver stated, “The only reason he said he came to me was I was standing alone and looked excited.” Oliver stated that he had not pulled his pistol out of his pocket or told anyone that he had a pistol with him. Oliver indicated that he was carrying a twenty-five caliber Beretta in his right front pocket which he had borrowed that morning to use in his work.

John Henry Powell stated he went to the home of his friend, Leonard Parker, on the afternoon of May 21,1978, and recalled that Stella Parker had shot her husband and a woman who was inside the house. He stated that Stella Parker had been brought outside and put in a police car before Robert Earl Oliver arrived at the Parkers’ home on Keith Street. Powell stated that he did not see Oliver inside the house, but saw him standing in the yard and saw two or three officers go over and grab him, then search him, and that Oliver was just standing there and had not done anything at the time he was seized by the officers. He stated that he did not see the appellant pull out a gun, but someone had yelled something about a gun, and that he did not know who it was that yelled.

On cross-examination, Powell indicated that he did hear someone yell something about a gun before the officers went over to Oliver and searched him, but insisted that Oliver had a “big Ace bandage on his right hand.”

The appellant’s wife, Dorothy Jean Oliver, stated that she went to the residence of Leonard Parker on Keith Street on the afternoon of May 21, 1978, and that there “must have been thirty or forty people standing at or near the yard” when she arrived. She said several police cars were there and she saw her husband walk up and ask her, “What happened?” She said she told him, “I think Stella has shot a girl inside the house,” and her husband replied, “What?” She said, “Yes, and I think she has shot Leonard Parker too.” She stated that she later saw her husband go inside the house and come back out. She said that her husband’s right hand was swollen, being injured while working with a horse on the farm. She said he had to go to the hospital, and his hand was bandaged. She stated that she saw the police grab her husband because he looked excited and that he did not have a gun in his hand. Mrs. Oliver admitted, however, that she heard Mrs. Washington yell, “he has got a gun, and he is fixing to shoot Stella.” She said that her husband had been walking toward the police car where Stella Parker was seated. Mrs. Oliver stated that she never did see her husband pull the gun out of his pocket. She said the officers threw him against Mrs. Humphrey’s car and searched him, then took a pistol out of his pocket. Mrs. Oliver indicated that her husband could not have pulled a pistol out of his pocket because his right hand was bandaged.

On cross-examination, Mrs. Oliver stated that she and Mrs. Washington went to the same church, and that her husband had asked Mrs. Washington’s daughter to give her a ride home from the Keith Street residence. She stated that she had known Mrs. Washington “all her life.” She admitted that Mrs. Washington did point at Robert Earl and yell, “He has a gun.”

Margaret Washington testified that, on May 21,1978, she was present at 4223 Keith Street in Huntsville followiñg a shooting inside the home of the Parkers. She stated that she first saw Robert Earl Oliver that afternoon standing in the door of Mrs. Lula Mae Humphrey’s home next door to the Parkers, and later saw Oliver’s wife walk up. She said that Oliver asked her daughter, Margaret, to take his wife, Dorothy Jean, home, and her daughter stated that she could not do this, so Robert Earl walked away. She said that, later that evening, Robert Earl Oliver walked near where she was standing and she saw her daughter look at Oliver and scream. She asked her daughter what was wrong and her daughter said, “He’s got a gun.” Mrs. Washington then screamed for the police, and she heard Oliver state, “I am going to kill that bitch,” then he started walking toward the police car where Stella Parker was seated inside. Mrs. Washington said she saw the barrel part of the pistol as she screamed for the police and saw two or three officers grab the appellant and push him against Mrs. Humphrey’s car to search him. She stated this occurred about 7:30 on the evening of May 21, 1978.

On cross-examination, Mrs. Washington stated that Stella Parker was seated on the right side of the front seat of the police car and a police officer was seated on the left side under the steering wheel when Robert Earl Oliver started toward the car and she yelled. She stated that later she found out the officer who first grabbed Oliver was Steve Rousseau and that later two other officers helped him. She said that the pistol was in Oliver’s front pocket and the officers searched him and pulled it out, but that she did not see any search warrant. Mrs. Washington stated that she did not see a bandage on Oliver’s right hand.

Huntsville Police Officer Robert Steven Rousseau testified that he answered the call to go to the scene of a shooting at 4223 Keith Street in the City of Huntsville on May 21,1978. He stated that he was in the yard, helping secure the scene when, shortly before 8:00 p. m., he heard a woman shout, “He has got a gun,” and saw a black male walk away toward a police car. Rousseau told the man, whom he identified in court as Robert Earl Oliver, to stop, and that he began to pat him down and Oliver resisted and began to wrestle with him. Two other officers came up and assisted him so that they placed Oliver against a parked car, patted him down and found a pistol in his right front pocket. Oliver was charged with carrying a concealed weapon and was taken to police headquarters for investigation where he later was charged with carrying a concealed weapon after commission of a crime of violence.

The trial court overruled the appellant’s motion to suppress and trial commenced.

The State presented the testimony of Billy Harbin, Clerk of the Circuit Court of Madison County, who identified a minute entry showing that the appellant had been convicted of grand larceny and sentenced to six years imprisonment on October 18,1972. This minute entry was admitted into evidence.

Huntsville Police Sergeant Fred Collie stated he went to 4223 Keith Street on May 21,1978, to investigate a shooting. He stated that, while there, he received a twenty-five caliber pistol from Huntsville Police Officer Steve Rousseau, which pistol contained three live rounds, and that he had had this pistol in his care and possession since receiving it from Officer Rousseau in the front yard of the Parkers’ residence on the night in question.

Margaret Washington testified for the State and reiterated her testimony concerning seeing the appellant standing in the yard at her home and asking her daughter, Margaret, to take his wife home. She said she later saw the appellant pull out a gun and exclaim, “I am going to kill that bitch,” and start toward the car where Stella Parker was seated. She said she then stated, “Police, Robert is fixing to shoot Stella.” She stated she saw the barrel of the pistol and later saw the officers stop Oliver and push him against the car, that Oliver began to tussle with the officers, and she saw the officers search him and get a pistol.

On cross-examination Mrs. Washington indicated that Stella Parker had shot a girl named Mary Ann, who was in the house with Leonard Parker on the date in question, and that Robert Earl Oliver did not come up to the Parkers’ residence until after the shooting and the police officers were already there on the scene.

James Humphrey, a twelve year old, stated that he was present at the Parkers’ residence on Keith Street on May 21, 1978, and he overheard Robert Earl Oliver ask Mrs. Washington’s daughter to take his wife, Dorothy Jean home. He said he later saw Oliver reach in his right pocket and pull out a pistol and point it at his mother. He heard Mrs. Washington yell, “Police, Oliver’s got a gun,” and that he grabbed at Oliver and some Huntsville police officers then seized Oliver and tussled with him, then they took a pistol from his pocket. He stated that the officers handcuffed Oliver and placed him in a patrol car. He stated that his mother was the one who was seated inside the police car and had shot another woman earlier that day.

Kerry Blankenship stated that, on May 21, 1978, he had been working as a “training ranger” for five years with the Huntsville City police and had ridden to 4223 Keith Street with Huntsville Police Officers Rousseau and Wooten to investigate a shooting. He stated that since he was a trainee he did not carry a weapon.

Blankenship indicated he was stationed outside the Parkers’ residence late that afternoon when Robert Earl Oliver came up to the door and stated to him that he was a member of the family and asked if he could go inside and look about the scene of the shooting. Blankenship admitted Oliver and stated that he stayed inside about fifteen minutes, then went back outside into the yard. Later on, he heard a woman scream, “Police,” and he saw Officer Rousseau walk up to Oliver and try to frisk him and Oliver resisted. He stated that he then ran and seized one of Oliver’s arms and that Officer Wooten grabbed the other and together with Officer Rousseau they pushed Oliver against a parked car and patted him down. Officer Rousseau found a pistol in Oliver’s front pocket, which he removed, and they placed handcuffs on him, then put him in a patrol car. He stated that Oliver was charged with carrying a concealed weapon and later that night, after taking Oliver to Huntsville Police Headquarters, he was charged with carrying a concealed weapon after a crime of violence.

Huntsville Police Officer Robert Steven Rousseau corroborated the testimony of Trainee Ranger Blankenship and identified State’s Exhibit Two, which was a pistol he removed from the pocket of Robert Earl Oliver after patting him down between 7:30 and 8:00 p. m. on Keith Street after resisting orders to stop. Officer Rousseau described the pistol as a Solt Flli Galesi Bres-cia Cal. 635, which contained three live rounds in the clip.

The appellant’s motion to exclude the evidence was overruled.

Robert Earl Oliver took the stand to testify that he had been working at the Diamond S Ranch near Lacey Springs in Morgan County as a caretaker over a farm. He stated that a few days prior to May 21, 1978, he had been thrown from a horse and was injured. His right hand and elbow required medical attention at the emergency room at the Huntsville Hospital. He stated that his right hand was bandaged when he went to the home of his friend, Leonard Parker, to obtain a ride over to the farm where he worked. Oliver stated that he borrowed a pistol, a twenty-five caliber Beretta, that morning from a friend named Mike, but denied that the pistol, State’s Exhibit Two, was on his person when he was stopped by Officer Rousseau. He stated that he did see Mrs. Washington there and heard someone cry out, “Oliver’s got a gun,” but denied pulling out a pistol, or ever saying that he was going to kill Stella Parker, or going toward the automobile where she was seated. He stated that Officer Rousseau approached him that evening and that he had not said or done anything, and Officer Rousseau twisted his arm and shoulder, then told him he was under arrest for carrying a concealed weapon. He stated that he had not pulled the pistol from his pocket and that it contained seven live rounds. Oliver stated that he later received his driver’s license and personal belongings from the mother of Wanda Battle, the girl who was killed that afternoon by Stella Parker. Oliver denied pulling out the pistol at the scene. He stated his hand was bandaged and he could not have done so.

I

The provisions of § 15-10-3, Code of Alabama 1975, are as follows:

“Arrest without warrant — When and for what allowed.
“An officer may arrest any person without a warrant, on any day and at any time, for:
“(1) Any public offense committed or a breach of the peace threatened in his presence;
“(2) When a felony has been committed, though not in his presence, by the person arrested;
“(3) When a felony has been committed and he has reasonable cause to believe that the person arrested committed it;
“(4) When he has reasonable cause to believe that the person arrested has committed a felony, although it may after-wards appear that a felony had not in fact been committed; or
“(5) On a charge made, upon reasonable cause, that the person arrested has committed a felony. (Code 1852, § 445; Code 1867, § 3994; Code 1876, § 4664; Code 1886, § 4262; Code 1896, § 5211; Code 1907, § 6269; Code 1923, § 3263; Code 1940, T. 15, § 154.)”

In construing the above section, our Supreme Court, in Duncan v. State, 278 Ala. 145, 176 So.2d 840 (1965), through Lawson, J., stated:

“In Union Indemnity Co. v. Webster, 218 Ala. 468, 118 So. 794, it was said, in effect, that ‘reasonable cause to believe,’ as used in § 154, Title 15, Code 1940, is knowledge of circumstances such as would lead a reasonable man of ordinary caution, acting impartially, reasonably and without prejudice, to believe the person arrested to be guilty. . . . ”

In the case at bar, Officer Rousseau and Trainee Blankenship each described the appellant as resisting Officer Rousseau’s instructions to stop when he attempted to pat him down after hearing Margaret Washington exclaim, “Police, police, he’s got a gun. He is fixing to shoot Stella.” These two officers, together with Officer Wooten, spread eagled Oliver against a vehicle and patted him down, removing a twenty-five caliber automatic from his pocket. This pistol contained three live rounds.

Margaret Washington testified she shouted, “Police, Oliver’s got a gun,” pointing to Oliver. She stated that she saw him remove it from his pocket and start toward the police car in which Stella Parker was seated, stating, “I am going to kill that bitch.”

The appellant’s own wife, Dorothy Jean Oliver, corroborated this part of Margaret Washington’s testimony in her statements made at the suppression hearing before trial.

There can be no doubt that Officer Rousseau acted properly in patting down the appellant, Robert Earl Oliver, under the circumstances revealed by the evidence in this cause.

Clearly, the pat down of Oliver under the circumstances shown was lawful as Officer Rousseau believed he was dealing with a potentially armed and dangerous individual. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). This was a limited search for weapons for his own safety and that of Mrs. Stella Parker, who had been arrested and placed in a police vehicle.

Sibron v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968); Peters v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968).

The resulting search and arrest of the appellant for carrying a concealed weapon was entirely proper. Dunaway v. State, 50 Ala.App. 200, 278 So.2d 200, cert. denied, 291 Ala. 93, 278 So.2d 205 (1973), and authorities therein cited; Bridges and Rogers v. State, 52 Ala.App. 546, 295 So.2d 266 (1974).

We have carefully examined this record and find same to be free of error. The cause is therefore

AFFIRMED.

All the Judges concur.


author: LEIGH M. CLARK, Retired Circuit Judge.

text:
    Gregory Ross MOBERG v. STATE.
    1 Div. 105.
    Court of Criminal Appeals of Alabama.
    June 30, 1980.

      James E. Atchison and Virginia A. Johnston of Hess, Atchison & Stout, Mobile, for appellant.
    Charles A. Graddick, Atty. Gen., and Michael E. McMaken, Sp. Asst. Atty. Gen., for appellee.
   LEIGH M. CLARK, Retired Circuit Judge.

This is a consolidated appeal in two separate cases, in each of which appellant was convicted of a felony. In the Circuit Court they were numbered 78-1777 and 78-1778 and were consolidated for trial at the request of defendant. In one case he was charged with robbery of Elizabeth Fox and sentenced to imprisonment for life. In the second case he was charged with assault with intent to murder Robert Moore and sentenced to imprisonment for twenty years, the sentence “to run concurrent with the sentence” in the first case.

According to the undisputed evidence, on the night of September 3, 1978, Elizabeth Fox, while acting as manager of a Seven-Eleven Store in Mobile, was robbed of a large sum of money, by a man armed with a pistol. After robbing her, he shoved her into a back room, left her there and proceeded toward the front of the store. While doing so, he was met by Mobile Police Detective Robert Moore, who with another officer had been checking “night stores.” Detective Moore was shot five times by the robber with the same pistol he had used in robbing Ms. Fox. Defendant was positively identified by Ms. Fox and others as the person, a white male, who had robbed Ms. Fox. Others positively identified him as the person who shot Detective Moore and fled from the scene.

Defendant testified that on the night of the robbery, and some of the day before, he had been with a friend by the name of Walter Colby and with another person by the name of “Zip.” They left a bar where they had been playing pin ball. He said Colby and Zip discussed committing an armed robbery, but he let them know that he was afraid to do so. In some way he was separated from them for about fifteen minutes, and then he saw them when they were in the vicinity of the store that was robbed. He heard the shooting in the store and out. He saw Detective Moore when he was shot. He saw a man come out of the store and leave the scene. He continued as follows:

“Q. What did you do after this? Did you just stand there or what?
“A. No, sir, I run.
“Q. Well, tell the jury where you ran.
“A. I ran from ... I ran between the service station there, there was a trailer behind it and I ran between that and went down the side and across the road, and when I ran across the road I ran into a car. I bounced off the car and ran down the road and went into the woods.
“Q. You ran down behind the service station?
“A. Yes, sir, there is a little alley between it and there was a trailer there at the time.
“Q. Tell the jury, why did you run that way?
“A. I don’t know.
“Q. Did you — were you shocked, or .
“A. I was scared.
“Q. Where were you heading then?
“A. I don’t know.”

There was ample evidence to support the verdict of the jury as to the crime charged in each indictment. There is no contention to the contrary.

A major contention of appellant is that the trial court erroneously overruled a motion by defendant for a change of venue.

Defendant was arraigned and pleaded not guilty in each case on November 28, 1978, and the case was set for trial on January 25, 1979. Why the cases were not tried at that time is not shown by the record, but no objection by defendant is indicated by the transcript of the record. There is no indication that he desired an early trial. Between the date of his arraignment and the date of the first setting of the cases for trial, defendant filed a motion for discovery and other motions, as to which considerable time was probably taken. The record shows that on September 25, 1979, there was a hearing on “the motion for discovery.” The record further shows:

“MR. ATCHISON: All right. Thank you, Your Honor. (End of proceedings on September 25, 1979.)
“(Whereupon, on the 29th day of October, 1979, court was called to order, and the following proceedings were had and done:)
“THE COURT: Your client is charged with assault with intent to murder, burglary in the second degree, and receiving and concealing stolen property, and robbery. Do I understand that you wish the charges of robbery and assault with intent to murder tried together?
“MR. ATCHISON: Yes, Judge.
“THE COURT: You’ve consulted with your client about that and he has consented to it?
“MR. ATCHISON: Yes. On the first two.
“(Pause. Attorney talks to defendant.)
“Yes, Judge.
“THE COURT: All right. Any other preliminary matters we want to take up before the jury gets here?
“(No answer).
“O.K.”

Thereupon, the jury was selected for the trial of the cases. The court excused the jury from the courtroom a few minutes and proceeded to interrogate counsel as to whether anything should be done before the trial actually commenced. As a part of that colloquy, the record shows:

“THE COURT: On the motion to quash the venire no jurors indicated that they were familiar with the case, so that motion is denied. What other matters do you all wish to take up?
“MR. ATCHISON: I don’t know of any others.
“THE COURT: I thought you indicated there was a motion?
“MR. HANLEY: I thought there was a motion. I thought he wanted to present some evidence on a motion to change venue. If he doesn’t, you know .
“THE COURT: On the motion to change venue, do you wish to present any evidence? None of the jurors indicated they were familiar with the case.
“MR. ATCHISON: Your Honor, I would like to have the right to introduce the news articles, but other than that.
“MR. HANLEY: No objections.
“THE COURT: Do you have any objections to that?
“MR. HANLEY: No objections.
“THE COURT: All right. We will mark them in evidence by agreement. Inasmuch as none of the jurors indicated they had any familiarity with the case, the motion to transfer is denied.
“MR. ATCHISON: We except, Your Honor.”

The motion for change of venue was filed on September 11, 1979. It alleged that “Defendant’s case was highly publicized from the beginning and it involved both newspaper and television and radio coverage making the case a sensational one” and that it was further publicized when defendant “was allegedly involved in an escape with a number of other prisoners from the Mobile County Jail and his name and picture were widely publicized up to and through his return to the county jail.” The motion also alleged that there was “recently a well publicized incident” as to a named police officer being killed “in the line of duty and the publicity and all forms of the news media stirred up deep feelings and emotions in both the City of Mobile and all of Mobile County.” The motion was verified by the signature and oath of defendant.

Defendant failed to meet the requirements for a change of venue. All that he presented was his own contention stating a conclusion that he could not have a fair and impartial trial in Mobile County by reason of the large amount of publicity with reference to his cases, other conduct on his part and an unrelated case involving the death of a police officer killed in the line of duty.

The existence of widespread publicity does not in and of itself indicate that a defendant will not get a fair trial. McLaren v. State, Ala.Cr.App., 353 So.2d 24, cert. denied, 353 So.2d 35 (1977); Peoples v. State, Ala.Cr.App., 338 So.2d 515 (1976); Turk v. State, Ala.Cr.App., 348 So.2d 878 (1977); Jenkins v. State, Ala.Cr.App., 339 So.2d 133, cert. denied, 339 So.2d 137 (1976); Speigner v. State, Ala.Cr.App., 367 So.2d 590, cert. denied, 367 So.2d 597 (1979).

This is not a case, in our opinion, in which there is any need to emphasize the breadth of the discretion of the trial court, and we merely repeat what has been said many times that a motion for a change of venue is addressed to the sound discretion of the trial court, and its ruling thereon will not be disturbed on appeal unless there is an abuse of that discretion. Speigner v. State, supra; Thompson v. State, Ala.Cr.App., 374 So.2d 377, aff’d 374 So.2d 388 (1978).

The trial court acted correctly in overruling defendant’s motion for a change of venue.

During the closing argument of counsel for the State, the following occurred:

“MR. HANLEY: Ladies and Gentlemen, people in this community are tired of this sort of thing. It happens every week. Pretty soon they are going to have to start having the 7-11 clerks wear bullet proof vests.
“MR. ATCHISON: Your Honor, I object to this line of argument. It has nothing to do with whether he’s guilty or not. “THE COURT: Overruled.
“MR. ATCHISON: We except.”

The argument was strong, but it is nothing more in essence than an “appeal for law enforcement.” As stated by Judge Bowen in Diamond v. State, Ala.Cr.App., 363 So.2d 109, 115 (1978):

“. . An appeal for law enforcement is within the limit of legitimate forensic discussion. Embrey v. State, 283 Ala. 110, 214 So.2d 567 (1968); Sanders v. State, 260 Ala. 323, 70 So.2d 802 (1954); Price v. State, 348 So.2d 517 (Ala.Cr.App. 1977); Cooper v. State, 55 Ala.App. 576, 317 So.2d 543 (1975).”

In making appeals for law enforcement, the attorney for the prosecution does well to avoid making a statement that purports to convey to the jury information as to facts not shown by the evidence and emanating solely from the mind of counsel. None of the three sentences contained in the quoted argument can be reasonably construed as such. We are confident that the jury understood, as we understand, that counsel was not attempting to tell the jury something they did not know. As to the first sentence, it appears that he was emphasizing a fact that he believed the jurors already knew, as a matter of common knowledge. The second short sentence, “It happens every week,” was not a statement to be construed as' absolutely accurate, even though it may have been, but as a shorthand rendition as to the prevalence of robbery, assault with intent to murder and the like. By the last sentence, counsel was obviously not purporting to speak as an inspired prophet, but only as an advocate endeavoring to embellish an argument that otherwise might seem commonplace. Such a privilege should not be denied a speaker. The court was not in error in overruling defendant’s objection to the argument.

Each case is free of error prejudicial to defendant. The judgment in each case 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 in each of the cases consolidated on this appeal is hereby

AFFIRMED.

All the Judges concur.