text:
    Pauline OLIVER v. Johnny W. TAYLOR. Irene SAWYER v. Johnny W. TAYLOR.
    Nos. 79-927 & 79-928.
    Supreme Court of Alabama.
    Feb. 20, 1981.
    Norman J. Gale, Jr. and Edward Massey of Clay, Massey & Street, Mobile, for appellants.
    G. Broox Garrett, Jr. of Garrett, Thompson & Hines, Brewton, and Michael Gillion, Mobile, for appellee.
   MADDOX, Justice.

These appeals are from orders granting summary judgments and the question presented is whether there was a material issue of fact as to who owned an automobile involved in an accident, and whether the driver of that automobile was an agent of the owner.

The law on the propriety of summary judgments is clear. A summary judgment is properly granted only if the pleadings and affidavits show that there is no genuine issue of material fact on which the summary judgment is sought. The moving party must, therefore, be entitled to the relief sought strictly as a matter of law. It is the moving party’s burden to clearly show that the other party cannot recover under any discernible set of circumstances. Ancora Corporation v. Miller Oil Purchasing Company, 361 So.2d 1008 (Ala.1978). If there is a scintilla of evidence supporting the position of the non-moving party, a summary judgment may not properly be granted. Campbell v. Alabama Power Company, 378 So.2d 718 (Ala.1979).

Appellants contend that they presented at least a scintilla of evidence on the question of ownership of the automobile and on the question of agency to preclude the grant of summary judgment. Normally, whether one is an agent of another is a question of fact for determination by the jury. Cashion v. Ahmadi, 345 So.2d 268 (Ala.1977). Generally, summary judgment on the issue of agency would, therefore, be inappropriate. Moses v. American Home Assurance Company, 376 So.2d 656 (Ala. 1979).

The determination of the appropriateness of summary judgment in every case hinges upon whether, based on the affidavits and testimony presented, there was a genuine issue of material fact. Rule 56(e), ARCP, regarding the form of affidavits used in connection with summary judgment, states:

Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein....

The committee comments relative to Rule 56(e) state:

Affidavits to be considered on a motion for summary judgment must be made on personal knowledge and show affirmatively that the affiant is competent to testify as to the matters stated, and they may only set forth such facts as would be admissible in evidence. Rule 56(e). Thus the court is not to consider statements in affidavits based on hearsay, or otherwise, inadmissible. E. g., Dyer v. MacDougall, 201 F.2d 265 (2d Cir. 1952); Jameson v. Jameson, 176 F.2d 58 (D.C.Cir.1949); United States v. Britten, 161 F.2d 921 (D.C.Cir.1949); 6 Moore’s Federal Practice, ¶ 56.22 (2d ed. 1953).

Based upon the foregoing legal principles, we now consider the record before the trial court to determine whether that court erred in granting summary judgment in this case.

The accident occurred in Escambia County, at approximately 10 p. m. on October 16, 1978. One automobile involved in the accident was being operated by one Samuel Thomas. The plaintiffs-appellants, Pauline Oliver and Irene Sawyer were occupants of the other automobile involved in the accident. The filed separate lawsuits, naming as defendants, Samuel Thomas, the driver, and Johnny Taylor, a general contractor in Atmore, Alabama, Tony Spillman, Baldwin Pole and Piling Leasing Corporation, and fictitious parties.

Defendant Johnny W. Taylor is in the general contracting business in Atmore, Alabama, and is the employer of Samuel Thomas, the driver of the automobile. Taylor was named as a party-defendant upon the theory that Thomas was Taylor’s agent at the time of the accident, and that Taylor owned the automobile which Thomas was driving at the time of the accident.

Taylor filed a motion for summary judgment supported by his affidavit which stated that Thomas was not working for him at the time of the accident because he had completed his day’s work several hours before; that Thomas was not acting as his agent, servant or employee; and that he did not own the automobile Thomas was operating; and that Thomas was not engaged in any type of business venture in his or his company’s behalf.

The plaintiffs filed counter-affidavits made by Billie Ray Jones, the son of one of the plaintiffs and the nephew of the other, and by Floyd Hoik, the owner of a car salvage business, who bought the wrecked automobile which had been driven by Thomas at the time of the accident.

Jones, in a counter-affidavit, stated that he had the check given by Hoik to Taylor, which was endorsed by Taylor.

During the hearing on motion for summary judgment, which appellants chose not to attend, even though they had notice, Taylor admitted that he got the check, but he denied he owned the car. He testified:

Q. There’s been an affidavit filed in this cause that was signed by Billy Jones. Have you seen this affidavit? (Document handed to the witness.)
A. Yes.
Q. And there’s some indication in this affidavit that you represented to Mr. Hoik that the automobile that Mr. Thomas was driving was owned by you. Was that automobile owned by you?
A. No. It was not.
Q. Did you ever receive a check from Mr. Hoik for the salvage value of this automobile?
A. I did receive a check for the salvage value of the car.
Q. Will you explain to the court the circumstances under which you received that check?
A. Samuel Thomas was in the hospital from injuries that was in the wreck. I acted as agent for him selling the car which the check made out payable to me so I could cash the check and pay it on bills that he had. That’s the onlyist connection that I had with the car.
Q. And the automobile was not owned by you?
A. No.
Q. It was not used in your business?
A. No.
Q. He was not on a business venture for you at that time the accident took place?
A. None at all.

The trial court, at the conclusion of Taylor’s testimony, granted summary judgments in favor of Taylor, and since the order adjudicated fewer than all the claims involved in the action, the court certified that there was no just reason for delay and directed the entry of final judgments. Rule 54(b), ARCP.

The only issue presented on appeal is whether it was error for the trial court to grant summary judgments. More precisely, the issue is whether the appellants presented a scintilla of evidence which tended to show that Taylor was the owner of the automobile involved in the accident or whether Taylor met his burden of showing that there was no genuine issue of material fact on the question of agency or ownership of the vehicle.

Taylor admitted that he received the check referred to in the Jones and Hoik counter-affidavits. The fact that Taylor admitted that he received a check as payment for the salvage value of the car, standing alone, would have been sufficient evidence to make the question of the ownership of the car a material question of fact in the usual case, but in this case, Taylor responded to the counter-affidavits by denying that he owned the car and explaining the reason why the check was made payable to him. In other words, he negated any inference of ownership which could have been drawn from the fact that the check was made payable to him.

In fact, Taylor’s testimony could be said to correspond with the fact stated in the Hoik counter-affidavit:

Sometime in October I bought a 1964 Ford automobile from Johnny Taylor. This automobile had been involved in a collision with a truck that had run into another car. We picked up the car with our wrecker. I do not know whether Mr. Taylor owned the car, of if he was selling it for an employee in an attempt to help him out. [Emphasis added.]

We are keenly aware that the scintilla rule applies to the grant of the summary judgment; however, under the facts of this case, we find that the trial court did not err in granting summary judgment.

AFFIRMED.

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


source: Caselaw Access Project

author: SHORES, Justice.

license: Public Domain

text:
    Nell PATTERSON and Royce Patterson v. Elwood CRAIG.
    No. 79-931.
    Supreme Court of Alabama.
    Feb. 20, 1981.
    Griffin Sikes of Tipler, Fuller & Sikes, Andalusia, for appellants.
    Kenneth T. Fuller of Cassady, Fuller & Marsh, Enterprise, for appellee.
   SHORES, Justice.

This case arose out of the following facts:

Late on the afternoon of August 25,1978, the plaintiffs, Mr. and Mrs. Patterson, with their retarded son, Sammy, drove from their home in their pickup truck to the country store of Chester Wells located on Old Highway 55 in Covington County, Alabama. When they reached the store, Sammy stayed in the truck, Mr. Patterson stayed with the truck to put some gasoline in it, and Mrs. Patterson went into the store to get some groceries.

After Mr. Patterson finished gassing the truck and saw that Mrs. Patterson had come to the counter with her groceries, he left the truck and went into the store to pay for their purchases. He left Sammy in the truck. When Mr. Patterson came into the store, Mrs. Patterson looked out of the window of the store and she did not see Sammy in the truck.

Before Mrs. Patterson went into the store, she told her husband to stay at the truck with Sammy while she went into the store, and she would come out and stay with him while Mr. Patterson went in to pay for their purchases.

Meanwhile, defendant Craig was driving south along the highway in front of Wells’s store when he saw someone in the highway. He went by this person, and his son-in-law, who was in the automobile with him, said, “That’s that boy. We had better stop and get him.” Craig stopped his automobile and backed it up for about twenty-five or thirty feet. When he stopped his automobile, it was straddling the center line of the highway.

About this time, Yernell Berry, who was originally joined as a defendant in this case, pulled out onto the highway about a quarter of a mile south of the scene and drove northward toward Wells’s store. Craig saw Berry’s vehicle coming toward him and blinked his lights a number of times but did not move his automobile from the center of the highway. Berry’s vehicle continued up the highway, sideswiped Craig’s automobile, ran off the highway and struck Mrs. Patterson some four to six feet off the pavement. Berry was taken into custody by the state trooper who investigated the accident and tested Berry, finding him to show .16 percent on the intoximeter.

Mrs. Patterson was severely and permanently injured in this accident, incurred considerable medical expenses and will have medical expenses in the future.

Mr. and Mrs. Patterson brought suit against Berry and Craig claiming damages for personal injury and loss of consortium. They settled their claim against Berry and went to trial against Craig only. The jury returned a verdict in Craig’s favor. After their motion for new trial was denied, the Pattersons appealed. They argue that the trial court erred in limiting their closing argument made to the jury and in allowing the issue of contributory negligence to go to the jury. They also argue that the court incorrectly charged the jury on contributory negligence. We affirm.

During the course of his closing argument, the plaintiffs’ counsel referred to the debt incurred by the plaintiffs for medical expenses. The court sustained the defendant’s objection to this argument. On appeal the plaintiffs argue that the court erred in disallowing this argument because they say “there would appear to be little doubt that Royce Patterson, an auto mechanic, who incurred $25,000.00 in medical expenses over a short period of time would probably be in debt.”

This Court has consistently held that great latitude is to be allowed attorneys in arguing a case to the jury, and the question of propriety of argument is one better left to the trial court. It has also held, equally consistently, that the wealth or poverty of the parties has no place in argument. In Allison v. Acton-Etheridge Coal Co., 289 Ala. 443, 268 So.2d 725 (1972), the Court, speaking through Justice Harwood, said:

There are numerous decisions by this court, and the former Court of Appeals relating to the impropriety of argument of counsel for a plaintiff referring to the wealth of a defendant or the poverty of a plaintiff.... Since the sine qua non of a trial is to obtain a true verdict or judgment based alone upon the evidence, any reference to wealth or economic condition of a party by opposing counsel is as invidious and prejudicial in the one instance as the other.
... The issues of liability for damages, or entitlement to damages, must validly be determined by the rules of legal liability applicable, and not upon the economic condition of either party, or the degree of burden that might result from a verdict or judgment.

289 Ala. at 446, 447, 268 So.2d 725.

We hold that the trial court correctly sustained the defendant’s objection to this argument.

We likewise find no error in the court’s submitting the issue of contributory negligence to the jury. Unless completely free of doubt, this issue should always be submitted to the jury. Yates v. De Mo, 270 Ala. 343, 118 So.2d 924 (1960). In this case, there was evidence from which the jury could conclude that both Mr. and Mrs. Patterson were guilty of negligence. Mrs. Patterson testified that Sammy was of such mental retardation that he had to be watched at all times, and Mr. Patterson testified that Sammy would not recognize the danger of the road, nor know how to get in and out of traffic. Thus, it was not error to allow the issue of contributory negligence to go to the jury, and under these facts, it was not improper to charge the jury:

Now, if you determine that Mr. Craig was negligent and that the Pattersons were negligent, at the time, in such a manner that proximately contributed to their injuries, you couldn’t go further. Because contributory negligence is a complete bar to recovery.
... [Assuming that you have found these other things that I have told you. That Mr. Craig was negligent. This negligence proximately contributed to her injury. And, that she was not guilty of negligence herself, which proximately contributed to her injuries, you should award a sum, which should reasonably and fairly compensate her for such pain and suffering or mental anguish.

We find no error to reverse. Therefore, the judgment is affirmed.

AFFIRMED.

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


text:
    Major David P. MORSE v. Roberta Lee MORSE.
    No. 79-938.
    Supreme Court of Alabama.
    Feb. 20, 1981.

      Sterling G. Culpepper, Jr. and David R. Boyd of Smith, Bowman, Thagard, Crook & Culpepper, Montgomery, for appellant.
    James R. Cooper, Jr. of Cooper & Cooper, Montgomery, for appellee.
   SHORES, Justice.

These two parties were married in 1952. They were divorced in Missouri in June, 1969. Both parties were before the Missouri court, which awarded custody of the couple’s five children to the wife and ordered the husband to pay monthly payments of $175 per child to support the children and $175 each month as alimony.

In December, 1979, the wife filed a petition in the Missouri court which granted the divorce, asking the court to enter a judgment for the amount of child support and alimony then in arrearage. The Missouri court entered judgment in the amount of $36,216.19. The wife then brought this action in the Montgomery circuit court to enforce the Missouri judgment. The husband answered, saying the Missouri judgment was not entitled to full faith and credit because he had no notice of the proceedings had in Missouri which resulted in a judgment for the amount in arrears. He concedes that Missouri law was complied with; he contends simply that the Missouri judgment is invalid as a matter of law because it was rendered without notice to him.

The trial court granted summary judgment in favor of the wife, holding that she “has a valid court judgment” and finding that “the Missouri court properly entered judgment against the defendant in that it retained jurisdiction over the parties in matters concerning child support and alimony granted in the divorce decree, and it is the conclusion of this court that full faith and credit is due that judgment....” The court decreed that “judgment be ... entered in favor of the plaintiff.” We affirm that decree.

The Constitution of the United States, Article IV, Section 1, requires that “full faith and credit shall be given in each state to the public acts, records and judicial proceedings of every other state.” The judgment of the court of another state having jurisdiction of the subject matter and persons is entitled to full faith and credit in Alabama courts. Hester v. Clinic Masters, Inc., 371 So.2d 915 (Ala.Civ.App.1979), cert. denied, 371 So.2d 917 (Ala.1979). The validity and effect of a foreign judgment, of course, are to be determined by the law of the state in which it was rendered. Forbes v. Davis, 187 Ala. 71, 65 So. 516 (1914).

Under the law of Missouri, support and alimony decrees are enforceable by all remedies available for the enforcement of a judgment, Revised Missouri Statutes, § 452.325.5.

The terms of maintenance and child support agreements, unless unconscionable, are decretal to be incorporated within the decree unless the agreement expressly provides otherwise. Hopkins v. Hopkins, 591 S.W.2d 716 (Mo.App.1979). Thus, maintenance and child support decrees may be enforced by a levy of execution or other available remedies, In re Marriage of Haggard, 585 S.W.2d 480, 481 (Mo. 1979). Such enforcement of a preexisting decree by a court holding continuing jurisdiction requires no new notice to the party in arrears on maintenance or child support payments in order to be valid.

Thus, the wife here could execute on the original decree in Missouri without having it first reduced to a lump sum judgment. Of course, the husband would be entitled, as the Missouri court expressly held in the judgment entered in this case, to show any defenses or set-offs that he might have. He is likewise entitled to show in Alabama any defenses which would be available to him if execution on the judgment were being sought in Missouri. He has not offered a defense or set-off and has not shown that any amount has been paid which was improperly included in the lump sum judgment. Instead, he relies solely on his contention that the Missouri judgment is invalid under the due process clause of the Fourteenth Amendment to the Constitution. In this, he is wrong and the trial court correctly held that the Missouri judgment was valid and enforceable in Alabama.

The judgment appealed from is affirmed.

AFFIRMED.

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


text:
    Ex parte Marie COLLINS. (In re Marie M. COLLINS v. BANKERS LIFE & CASUALTY CO., etc. et al. v. Sarah SYLVESTER, Intervenor).
    No. 79-954.
    Supreme Court of Alabama.
    Feb. 20, 1981.
    James P. Smith of Harrison, Burwell, Smith & Sutherlin, Huntsville, for petitioners.
    Norman W. Harris of Harris, Harris, Shinn & Harris, Decatur, for respondent Ralph E. Slate.
    Tom B. Coggin, Decatur, for respondents.
   SHORES, Justice.

This case is before this Court on the petition of Marie Collins seeking a writ of mandamus requiring the trial court to vacate its order striking Collins’s demand for jury trial in the proceedings below. We deny the relief sought.

Ralph E. Slate, a practicing attorney in Morgan County, instituted an attorney’s lien enforcement suit under the authority of § 34-3-61, Code of Alabama 1975. Collins made a demand for a jury trial, which Slate moved to strike. The trial judge granted the motion, finding that there was no right to a jury trial in a suit to enforce an attorney’s lien.

The only issue presented is whether the petitioner is entitled to a jury trial as a matter of right after the adoption of the Alabama Rules of Civil Procedure, by which law and equity were merged into one form of action.

Rule 38(a), ARCP, preserves the right to a trial by jury in cases which would have been tried to a jury, if demanded, under prior procedure. This is the one procedural difference which remains under the Rule. Thus, the case turns upon whether an action to enforce an attorney’s lien was one which was triable to a jury as a matter of right before the adoption of the Rules. The petitioner conceded before the trial court that prior to the adoption of the Rules of Civil Procedure, attorney’s fee lien suits were deemed to be equitable in nature, and a jury trial was not allowable as a matter of right. In Peach v. Drennen, 253 Ala. 271, 44 So.2d 257 (1950), this Court held that § 1, Title 33, Code of 1940 [now § 35-11-1, Code of 1975], applied to attorney’s liens. Section 1, Title 33, provides that “[a]ny lien may be enforced in the manner provided by statute, if so provided, or in equity....”

Section 34-3-61, Code, provides for attorney’s liens in limited cases. This statute does not, however, provide for a method of enforcement. Thus, under § 35-11-1, the only method of enforcement of attorney’s liens prior to the adoption of the ARCP was by a bill in equity.

The petitioner, although not arguing that such cases were triable to juries prior to the adoption of ARCP, contends that this Court has established different criteria for determining whether an issue is triable to a jury after the adoption of the Rules. Rule 38(a) provides: “The right of trial by jury as declared by the Constitution of Alabama or as given by a statute of this State shall be preserved to the parties inviolate.” The Committee Comments note:

Subdivision (a) is identical with Constitution 1901, § 11, and thus preserves the right to jury trial precisely as it has been known heretofore in Alabama.... Because law and equity are now to be merged, there will be cases in which issues to be tried to the jury are combined with issues to be tried to the court. But the basic test is clear: if an issue is of a sort which heretofore would have been tried to a jury, then the party has a constitutional right, expressly reaffirmed by Rule 38(a), to have it tried to a jury under the merged procedure.

Thus, the adoption of the ARCP in no way restricted the right of trial by jury and, if there is any doubt about whether a particular issue is of a sort theretofore tria-ble to a jury, the question should be resolved in favor of a jury trial. Where actions were heretofore triable, both jury and non-jury, a jury trial is now available under the Rules. In Cumens v. Garrett, 294 Ala. 535, 319 So.2d 665 (1975), the Court held that trial by jury is the favored mode of trial and where the right of jury trial is not clear, a trial by jury will be allowed. The Court in that case said:

In construing Rule 38 of the Federal Rules of Civil Procedure, the United States Supreme Court has shown a decided preference for finding in favor of right to jury trial where the issue is in doubt.
... [A]n abiding faith that litigants should have a right of trial by jury in the absence of compelling constitutional or legal reasons to the contrary, motivates this court to hold that the parties to a mechanic’s lien enforcement action have the right to demand a jury trial under the Alabama Rules of civil Procedure.

294 Ala. at 539-540, 319 So.2d 665.

A jury trial in a mechanic’s lien action was available, however, before the adoption of the ARCP, if the action was brought on the law side. Such is not the case in actions to enforce an attorney’s lien. Those actions could be brought only on the equity side where a jury trial was not a matter of right.

The Constitution and the Rules of Civil Procedure preserve to all litigants the right of trial by jury as it existed under prior procedure, and the Rules cannot be construed to restrict such right. However, they should not be construed to permit a jury trial on issues which were never triable by jury before the adoption of the Rules, unless such issues are merged with issues which were.

In Mobley v. Mobley, 350 So.2d 414 (Ala. 1977), the Court held:

The merger of law and equity under the Alabama Rules of Civil Procedure, and in other merged systems, has supplanted the procedural distinction existing between law and equity with the distinction between jury and non-jury cases.... Under the merged system, it is contemplated that a suit will embrace both jury issues and non-jury issues without affecting the parties’ right to a jury trial.
... The right to a trial by jury is strongly engrained in our legal heritage and is protected by Section 11 of Article I, of the Constitution of Alabama 1901. In addition, it is the intention of Rule 38(a), ARCP, that nothing in the Alabama Rules of Civil Procedure abridges this fundamental right as declared by our Constitution and by statute.

350 So.2d at 416-17.

We adhere to the views heretofore expressed in these cases. However, we can find no authority for a jury trial in an action to enforce an attorney’s lien which existed before the adoption of the ARCP. Although the Rules should be construed to allow trial by jury in cases where doubt exists, they should not be construed to extend jury trials to issues which have historically been non-jury issues. Such is the case before us.

The petition for writ of mandamus is denied.

WRIT DENIED.

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


author: SENTELL, Clerk.

text:
    OPINION OF the CLERK.
    No. 33.
    Supreme Court of Alabama.
    March 4, 1981.
   SENTELL, Clerk.

RULE 7, ALABAMA RULES OF JUDICIAL ADMINISTRATION — FEES FOR MISCELLANEOUS FILINGS— AWARD IN ARBITRATION

Mr. Maurice W. Castle, Jr., Clerk of the Circuit Court of Mobile County, has submitted to me, as Clerk of the Supreme Court, the following question:

“Should a filing fee be required when award in arbitration is received in the Circuit Clerk’s office?”

Mr. Castle cites two sections of the Code of 1975 which read as follows:

§ 6-6-12. Award — Proceedings when not performed; force and effect.
If the award is not performed in 10 days after notice and delivery of a copy thereof, the successful party may, if an action is pending, cause the award and file of papers in the case to be returned to the court in which the action is pending, or if no action is pending, cause the submission and award to be returned to the clerk of the circuit court of the county in which the award is made. Such award has the force and effect of a judgment, upon which execution may issue as in other cases.
§ 6-6-15. Same — Appeals.
Either party may appeal from an award under this article. Notice of the appeal to the appropriate appellate court shall be filed within 10 days after receipt of notice of the award and shall be filed with the clerk or register of the circuit court where the action is pending or, if no action is pending, then in the office of the clerk or register of the circuit court of the county where the award is made. The notice of appeal, together with a copy of the award, signed by the arbitrators or a majority of them, shall be delivered with the file of papers or with the submission, as the case may be, to the court to which the award is returnable; and the clerk or register shall enter the award as the judgment of the court. Thereafter, unless within 10 days the court shall set aside the award for one or more of the causes specified in section 6-6-14, the judgment shall become final and an appeal shall lie as in other cases. In the event the award shall be set aside, such action shall be a final judgment from which an appeal shall lie as in other cases.

The answer to this inquiry is given pursuant to the authority conferred on the Clerk of the Supreme Court by § 12-2-19(d), Code, 1975.

The answer should be in the affirmative.

There is a filing of the award in arbitration when it is received in the office of the clerk of the circuit court. See Gandy v. Tippett, 155 Ala. 296, 46 So. 463.

In my opinion, the filing of the award in arbitration is a filing that requires the payment of a fee under the terms of Rule 7, Alabama Rules of Judicial Administration, which is as follows:

“FEES FOR MISCELLANEOUS FILINGS
Any filing for which there is no express cost under the consolidated fee structure shall be treated as an original filing for cost purposes.”

This rule should be read in connection with § 12-19-71(c), Code, 1975, which reads as follows:

“Amount of docket fees to be collected in civil cases.—The docket fees which shall be collected in civil cases are:
(c) thirty-five dollars for cases filed in the circuit court; .... ”

The “filing” that requires a payment of a fee under Rule 7 is the filing of a “case.” See Opinions of Clerk, No. 1, Ala., 345 So.2d 1329 (April 26, 1977); No. 3, Ala. 345 So.2d 1338 (May 4, 1977); No. 12, Ala., 361 So.2d 534 (August 8, 1978); No. 23, Ala., 381 So.2d 55 (March 10,1980); No. 32, Ala., 390 So.2d 1040 (November 21, 1980).

The words “any filing,” in Rule 7 refer to the words, “cases filed,” in § 12-19-71, supra. See Opinions of Clerk, No. 1, Ala., 345 So.2d 1329 (April 26, 1977), and No. 11, Ala., 356 So.2d 636 (March 10, 1978).

A “case” has been defined as “a state of facts which furnishes occasion for the exercise of the jurisdiction of a court of justice.” State v. Montevallo Coal Mining Co., 29 Ala.App. 318, 197 So. 82, 85 (1940); Opinions of Clerk, No. 11, supra; No. 19, Ala., 374 So.2d 273 (August 20, 1979). See also S. D. Warren Co. v. Fritz, 138 Me. 279, 25 A.2d 645 (1942); Gibson v. Sidney, 50 Neb. 12, 69 N.W. 314, 315 (1896); Kelly v. Roetzel, 64 Okl. 36,165 P. 1150, 1153 (1917).

Rule 7 should also be read in connection with Sections 6-6-1 to 6-6-16, Code of Alabama, 1975. Arbitration is referred to as “case” in § 6-6-7; and reference is made to “other cases” in § 6-6-12 and § 6-6-15.

Section 6-6-7, Code, 1975, is as follows:

§ 6-6-7. Same—Power to subpoena witnesses, administer oaths and take depositions.
The arbitrators, or either of them, have power to subpoena witnesses at the request of either of the parties and to administer all oaths which may be necessary in the progress of the ease and must, on the application of either party, issue commission to take the deposition of any witness residing out of the county, which must be taken in the same manner as depositions in the circuit court. (Emphasis supplied)

The last sentence in § 6-6-12 is as follows:

“Such award has the force and effect of a judgment, upon which execution may issue as in other cases." (Emphasis supplied)

The last sentence in § 6-6-15 is as follows:

“In the event the award shall be set aside, such action shall be a final judgment from which an appeal shall lie as in other cases. (Emphasis supplied)

Section 6-6-13, Code, 1975, is as follows: § 6-6-13. Same—Enforcement.

If the award is for the delivery of property or to do or omit to do any particular act, on notice and motion to the court, performance may be enforced by attachment or other appropriate writ.

This Court, in Wilbourn v. Hurt, 139 Ala. 557, 563, 36 So. 768, 770, in referring to what is now § 6-6-12, Code, 1975, observed, among other things, the following:

“Recognizing that the award had settled the matters at issue between the parties, so that they cannot be again opened and retried in any sort of proceeding, and therefore, appreciating that no good end could be subserved by putting the successful party to his action on the award, this statute gives him without such action the same relief he would be entitled to at the end of it, namely, an execution for the enforcement of the award. That is the sole purpose and operation of the statute.”

It thus appears that the filing of an award in arbitration in the circuit court furnishes occasion for the exercise of the jurisdiction of that court for the enforcement of a right or the remedying of a wrong.

This Court, in Moss v. Upchurch, 278 Ala. 615, 179 So.2d 741 (1965), referring to the sections that are now Sections 6-6-12 and 6-6-15, Code, 1975, indicated that in case of an appeal the circuit court was empowered to review the award as to whether the arbitrators are guilty of fraud, partiality or corruption in making it.

It is my opinion that the filing in the circuit court of an award in arbitration where no action is pending is a filing of a case within the meaning of Rule 7; and that the filing requires the payment of a docket fee.


text:
    OPINION OF the JUSTICES.
    No. 274.
    Supreme Court of Alabama.
    March 4, 1981.
   To the Honorable Speaker and Members of the House of Representatives

State Capitol

Montgomery, Alabama

Dear Ladies and Gentlemen:

The Chief Justice has received a letter from the Honorable John W. Pemberton, Clerk, House of Representatives, dated February 19,1981, forwarding a copy of House Resolution No. 76 in which the House has requested our opinion as to the constitutionality of House Bill 465, 1980 Regular Session. The resolution reads as follows:

BE IT RESOLVED BY THE HOUSE OF REPRESENTATIVES OF THE LEGISLATURE OF ALABAMA, That we respectfully request the Honorable Chief Justice and Associate Justices of the Supreme Court, or a majority of them, to give this body their written opinions on the following important constitutional question which has arisen concerning the pending H.B. 465, amending Section 11-41-1 of the Code of Alabama, 1975, pertaining to the incorporation of a municipality, copies of which are attached to this resolution and made a part hereof by reference. In pertinent part, Section 11-41-1 reads:
“...; provided that an unincorporated community lying within or partly within the boundaries of a county having a population of 600,000 or more, according to the most recent federal decennial census, shall not be incorporated under this section if the territory proposed to be incorporated has a total population of less than 1,000 or if the territory or any part of its perimeter lies within three miles of the corporate limits of any existing city or town.” (Emphasis added)
1. Does the language of Section 11-41-1, Code of Alabama 1975, set out herein, fall within the United States constitutional prohibitions of the Fourteenth Amendment for due process and equal protection of the laws and therefore operate arbitrarily and discriminatorily against certain people of the state because they live “within three miles of the corporate limits of any existing city or town” only when the boundaries lie within a county having 600,000 or more inhabitants?
2. Does the language of the said section, set out hereinabove, contravene the provisions of Article I, Section 1 of the Constitution of Alabama, 1901, in that this general law has unequal public application which operates to arbitrarily violate the constitutional rights of citizens within the same county?
3. Does the language of the said section contravene the provisions of Article I, Section 35 of the Constitution of Alabama, 1901, in that the provisions operate arbitrarily or capriciously against certain citizens in a certain classification without a compelling state interest?
4. Does the language of Section 11-41-1 of the Code of Alabama, 1975, exclude a certain group of persons within the same territory so as to deny them due process and equal protection of the laws guaranteed under the federal constitution?
RESOLVED FURTHER, That the Clerk of the House of Representatives is hereby directed to send sufficient copies of the pending bill, H.B. 465, to the Clerk of the Supreme Court of Alabama, and to transmit this request to the Justices of the Supreme Court forthwith upon adoption of this Resolution.

The copy of House Bill No. 465, forwarded with the resolution reads:

A BILL

TO BE ENTITLED

AN ACT

To further amend Section 11-41-1, Code of Alabama 1975, relating to the incorporation of a municipality, so as to change the requirements for population.

BE IT ENACTED BY THE LEGISLATURE OF ALABAMA:

Section 1. Section 11 — 41—1, Code of Alabama 1975, is hereby amended to read as follows:
“§ 11-41-1.
“When the inhabitants of an unincorporated community, which has a population of not less than 75 100, constituting a body of citizens whose residences are contiguous to and all of which form a homogeneous settlement or community, desire to become organized as a municipal corporation, they may apply to the probate judge of the county in which such territory is situated, or the greater portion thereof if it is situated in two or more counties, for an order of incorporation, by a petition in writing signed by not less than 15 percent of the qualified electors residing within the limits of the proposed municipality; provided, that an unincorporated community lying within or partly within the boundaries of a county having a population of 600,000 or more, according to the most recent federal decennial census, shall not be incorporated under this section if the territory proposed to be incorporated has a total population of less than 1,000 or if the territory or any part of its perimeter lies within three miles of the corporate limits of any existing city or town.
“Such petition shall state the proposed name of such municipality and shall have attached thereto and as a part thereof an accurate plat of the territory proposed to be embraced within the corporate limits, including all subdivisions into lots, blocks, streets and alleys, within such territory, if any, and an accurate description by metes and bounds of the boundary of such territory. No platted or unplatted territory shall be included within such boundary unless there are at least four qualified electors, according to government survey, residing on each quarter of each quarter section or part thereof of such platted or unplatted land, who assent thereto in writing by signing said petition, together with the consent of the persons, firms, or corporations owning at least 60 percent of the acreage of such platted or unplatted lands, such consent to be signified by their signing said petition. Proof of residence and qualifications as electors of petitioners and of persons affected shall be made to the judge of probate, by affidavit or otherwise, as he may direct. When determining the ownership of such lands, the person, firm or corporation assessing the same for' taxation shall be accepted by the probate judge as prima facie the owner thereof.
“The inhabitants of any island having an area of not less than five square miles and a population of not less than 300 qualified electors actually residing thereon and being situated in a county having a population of not less than 300,000 nor more than 600,000 according to the 1970 or any subsequent federal decennial census, may become organized as a municipal corporation, embracing within the corporate limits of the proposed municipality the entire area of the island, even though there may be on such island one or more quarters of a quarter section according to the government survey on which no qualified elector resides, if not less than 51 percent of the qualified electors residing on the island sign and file with the judge of probate a petition requesting the judge of probate to call an election relative to the incorporation and the vote at such election is favorable to incorporation. Such petition shall state the proposed name of the municipality and shall have attached thereto and made a part thereof an accurate plat of the entire island, including all subdivisions into lots, blocks, streets and alleys within the territory, and an accurate description by metes and bounds of the island. Except as provided in this section, the incorporation of any such municipality shall be governed by laws currently providing for the incorporation of unincorporated communities.”
Section 2. The provisions of this Act are severable. If any part of the Act is declared invalid or unconstitutional, such declaration shall not affect the part which remains.
Section 3. All laws or parts of laws which conflict with this Act are hereby repealed.
Section 4. This Act shall become effective immediately upon its passage and approval by the Governor, or upon its otherwise becoming a law.

We have examined H.B. 465, and we note that H.B. 465 amends Code 1975, § 11-41-1 only to change the requirement for population from 75 to 100. H.B. 465 in no way changes the proviso in § 11-41 — 1, on which you now ask our opinion.

Since the language of Code 1975, § 11 — 41-1, on which you request our opinion, is currently a part of the Code of Alabama, we are of the view that we should not address the constitutionality of that Code section in an advisory opinion. While individual Justices, within permissible limits, are privileged to give individual opinions on important constitutional questions properly submitted, yet the Supreme Court, of which these Justices are members, is an appellate court and the constitutionality of statutes should be tested by appropriate adversary proceedings when available or when at all possible. Opinion of the Justices, 294 Ala. 589, 319 So.2d 715 (1975).

In Opinion of the Justices, 266 Ala. 370, 371, 96 So.2d 752, 753 (1957), the Justices opined

Under a long prevailing view, the provisions of § 34 et seq., Title 13, Code 1940, have been- considered as privileging — but not requiring — the individual Justices of the Supreme Court to give advisory opinions at the request of the Governor or either House of the Legislature on important constitutional questions. These opinions are usually given in deference to the executive and legislative departments of the state in order to guide them in the proper dispatch of their duties and to protect the officers and departments of the state in the performance of their duties under enacted legislation or under stipulations of proposed bond issues, etc.

We think it appropriate at this time to again invite attention to the fact that while as individual Justices the members of this court, within permissible limits of the statute, are privileged to give their individual opinions on constitutional questions properly submitted to them, yet the court of which they are members is a court of appellate review and the constitutionality of existing statutes should be tested by appropriate adversary proceedings when available or when at all possible. The end result of such proceedings would be of binding force, whereas the opinions promulgated under Title 13, supra, are not. [Emphasis added.]

Respectfully submitted,

C. C. Torbert, Jr.

Chief Justice

Hugh Maddox

James H. Faulkner

Reneau P. Almon

Janie L. Shores

T. Eric Embry

Sam A. Beatty

Oscar W. Adams, Jr. Associate Justices


author: BRADLEY, Judge.

text:
    Bonnie Lummus INGLISH v. UNITED SERVICES GENERAL LIFE COMPANY, an Oklahoma Corporation.
    Civ. 2231.
    Court of Civil Appeals of Alabama.
    Oct. 1, 1980.
    Rehearing Denied Nov. 5, 1980.

      Harold Howell of Howell, Sarto & Howell, Prattville, for appellant.
    Charles B. Paterson of Ball, Ball, Duke & Matthews, Montgomery, for appellee.
   BRADLEY, Judge.

This is an insurance case.

On June 29, 1977 Gordon T. Inglish, then a sergeant in the United States Air Force, applied for a policy of life insurance in the amount of $10,000 with United Services General Life Company (hereinafter referred to as United Services). On his application for this policy, Sergeant Inglish was requested to truthfully and completely disclose to the best of his knowledge and belief certain details of his medical history and to subjectively evaluate his extant medical condition. He provided the following answers to the following questions:

26. Date of latest physical examination.
Day (If examined)
Month within last 30 days Year A 6 10 77
27. Details of any hospitalization, medication or treatment recommended as a result of above examination(s). If none, SO STATE.
No
28. Name all other physicians and practitioners consulted, or who have examined or treated A ... above within the past five years. State for what conditions or purposes. Give dates and full details. If none, SO STATE.
Annual A.F. Physical
29. Has A ... ever had or been treated for cancer, diabetes, heart disease, high blood pressure or tuberculosis? No.
If “yes”, give dates and full details in No. 36, including names and addresses of doctors.
30. Is [the] person in A ... now to the best of your knowledge and belief in good health and free from defect or deformity? Yes.

On the basis of his answers to these and other questions contained in his application for insurance, United Services, on July 1, 1977, issued a policy of insurance in the amount of $10,000 on the life of Gordon T. Inglish. Appellant was designated as beneficiary of the proceeds of the policy. Prior to his retirement from the military on September 1,1977, Sergeant Inglish underwent an Air Force retirement physical which began on May 3, 1977 and ended on June 23, 1977. After his retirement he performed repair and maintenance work on various aircraft for the Civil Air Patrol at Maxwell Air Force Base in Montgomery, Alabama. On May 4, 1978 Sergeant Inglish died of a heart attack. United Services received timely notice of the death of Gordon Inglish but refused to pay appellant any portion of the proceeds of his life insurance policy. Appellant thereupon filed suit against ap-pellee to recover the proceeds. Appellee answered denying liability on the policy by virtue of § 27-14-7 of the 1975 Alabama Code which provides, inter alia, that:

Misrepresentations, omissions, concealment of facts and incorrect statements shall not prevent a recovery under the policy or contract unless either:
(1) Fraudulent;
(2) Material either to the acceptance of the risk or to the hazard assumed by the insurer; or
(3) The insurer in good faith would either not have issued the policy or contract, or would not have issued a policy or contract at the premium rate as applied for, or would not have issued a policy or contract in as large an amount or would not have provided coverage with respect to the hazard resulting in the loss if the true facts had been made known to the insurer as required either by the application for the policy or contract or otherwise.

From a jury verdict in favor of appellee appellant has prosecuted this appeal contending that the trial court erred to reversal in (1) permitting appellee’s vice president of underwriting, Don F. Manigold, to testify over appellant’s timely objection that United Services had never been involved in a lawsuit over a claim on a policy; (2) denying appellant’s motions for a directed verdict or for a judgment notwithstanding the verdict or for a new trial on the ground that appellee failed to prove that it would have declined Sergeant Inglish’s application had it been aware of certain facts respecting his medical condition which it only discovered subsequent to his death; (3) permitting Mr. Manigold to testify that Gordon Inglish’s medical records were inconsistent with his application for insurance; (4) allowing Mr. Manigold to testify over objection that he would not have issued the policy under normal operating procedures if he had been familiar with the contents of Sergeant Inglish’s medical records; (5) failing to recognize that appellee had neglected to prove that Sergeant Inglish had made fraudulent misrepresentations in completing his application for life insurance with appellee; and (6) sustaining ap-pellee’s objection to appellant’s contention on final argument that if appellee failed to prove that Sergeant Inglish had anything but heart disease at the time he applied for insurance with United Services the jury should return a verdict for appellant. For the reasons detailed below, we affirm.

In his opening statement to the jury, counsel for the appellant made the following observations:

The life insurance company [sic] enjoy a good reputation, and deservedly so. They do many charitable and worthwhile works in the community, and they are pillars in the community, and they do some great things. And I am favorably disposed to them. Unlike casualty insurance companies, they generally pay off in the amount that is set, whatever is in the policy, there is no argument. However, if someone dies within two years after making an application for insurance, they have a tendency sometimes, as in this case, not to want to pay off. And they scramble around and try to figure out why or how they can get out from under the risk. And they normally claim misrepresentation.

Appellee raised no objection to this portion of appellant’s argument but was permitted to introduce as part of its case in chief, over appellant’s timely objection, evidence that United Services had never been involved in a lawsuit over a claim on one of its insurance policies. Counsel for United Services argues that such evidence was properly admitted to rebut appellant’s impermissible introduction in her opening statement of evidence impugning appellee’s character under the doctrine of curative admissibility and “was the only method open to United Services to rebut opposing counsel’s damaging remarks during open [sic] statements.” We cannot agree. As a general rule, in a civil action, a party’s good or bad character with regard to a certain activity may not be introduced into evidence “for the purpose of showing that, on the occasion in question, he acted in keeping with that character. [Footnote omitted.]” C. Gamble, McElroy’s Alabama Evidence § 34.01 (3d ed. 1977); see Smith v. Civil Service Board of City of Florence, 52 Ala.App. 44, 289 So.2d 614 (1974). Thus, evidence of a life insurance company’s tendency to resist payment of death benefits to beneficiaries of its policies on spurious grounds is inadmissible to prove that it is refusing to pay such benefits on a policy which is the subject of the case at bar on similar grounds. If such character evidence is erroneously received into evidence, however, the opponent of same has the right to rebut it with evidence of the company’s propensity to pay these benefits. See C. Gamble, supra at § 14.01. Hence, appellee could properly introduce into evidence testimony that it had never been involved in a lawsuit over a claim involving one of its insurance policies if appellant had previously injected into the trial evidence of United Services’ propensity to resist payment of death benefits to beneficiaries of its life insurance policies on specious grounds. But appellant did not introduce evidence of such propensity into the trial of this action. Appellant inferred that appel-lee possessed this propensity only in her opening statement. Under Alabama law, “[t]he opening statement of counsel ... is not evidence and does not necessarily contain all or even a major part of [a party’s] case.” Wilkey v. State ex rel. Smith, 238 Ala. 595, 192 So. 588 (1939). It follows that appellee should not have been permitted to introduce at trial evidence that it had never been sued on a claim arising under one of its insurance policies. However, we do not believe that such an error warrants a reversal of the verdict rendered in this case. Rule 45 of the Alabama Rules of Appellate Procedure provides in part that:

No judgment may be reversed or set aside, nor new trial granted in any civil or criminal case on the ground of ... improper admission or rejection of evidence, ... unless in the opinion of the court to which the appeal is taken or application is made, after an examination of the entire cause, it should appear that the error complained of has probably injuriously affected substantial rights of the parties. [Emphasis supplied.]

Upon an examination of the entire record in this case, we cannot say that the error of the trial court noted above probably injuriously affected substantial rights of the plaintiff. It will become apparent in the course of this opinion that there was testimony from which the jury might reasonably have concluded that Gordon T. Inglish knowingly misrepresented his medical history to appellee at the time he applied for life insurance with United Services. Evidence that appellee had never been previously involved in a lawsuit over a claim on one of its policies probably had a minimal impact upon the jury’s deliberations.

Appellant’s third assignment of error, as noted previously, is that the trial court erroneously permitted Mr. Manigold to testify over appellant’s timely objection that Gordon Inglish’s medical records were inconsistent with his application for insurance. Phrased differently, appellant argues that Mr. Manigold was permitted to testify that Sergeant Inglish had heart disease at the time he applied for life insurance with appellee and that such testimony should not have been admitted since a layman cannot testify that another person was or is suffering from a particular disease. See Dominick v. Randolph, 124 Ala. 557, 27 So. 481 (1899). We are of the opinion, however, that Mr. Manigold’s testimony in this respect was not tantamount to expert testimony that Inglish had heart disease at the time he applied for life insurance with ap-pellee; rather it constituted merely an observation by the witness that the medical records were inconsistent with the answers given to certain questions posed by the application for life insurance. Such observation is concededly an opinion, but when it is impracticable for the jury to examine a large number of records and thereby form their own opinion of the validity of the facts disclosed by them a layman who has examined such records may present his opinion of the facts contained therein to the jury. See Southern States Life Insurance Co. v. Allan, 38 Ala.App. 467, 87 So.2d 439 (1956); C. Gamble, McElroy’s Alabama Evidence § 127.01(3) (3d ed. 1977). Hence, we find no error in the trial court’s decision allowing Mr. Manigold to testify that Sergeant Inglish’s medical records were inconsistent with his application for insurance.

Appellant also contends in assignments two and four that the trial court “erred in permitting the Defendant’s witness Donald F. Manigold to invade the province of the jury by testifying that he would not have issued the policy under the normal operating procedure, if he were aware of the medical records of Gordon T. Inglish,” and in overruling its motions for a directed verdict for judgment notwithstanding the verdict, or for a new trial upon the grounds that United Services “failed to prove it would have declined the application of Gordon T. Inglish had it learned the medical facts it learned subsequent to his death.” These assignments of error are not well taken for the simple fact that appel-lee’s vice president of underwriting, Don F. Manigold, twice testified without objection on direct examination that had appellee been aware of certain information respecting the sergeant’s medical condition and history as revealed by his Air Force medical records at the time he applied for life insurance with United Services appellee would not have issued a policy of insurance on the life of Gordon T. Inglish. It is well settled that:

[I]n order for a trial court to be held in error on the admission or exclusion of evidence that a particular ruling of a trial court must be invoked by a proper objection seasonably made; or, in the alternative, that the party complaining must move to exclude the alleged improper testimony and thereby invoke a ruling as to its admissibility.

Neumiller v. Jenkins, 270 Ala. 231, 117 So.2d 402 (1960). Furthermore, a motion for a directed verdict or a judgment notwithstanding the verdict may be properly denied where at least a scintilla of evidence presented in a case is in conflict with other evidence in the case with regard to at least one material issue, see Hanson v. Couch, Ala., 360 So.2d 942 (1978); Wells v. Central Bank of Alabama, Ala.Civ.App., 347 So.2d 114 (1977), and a motion for a new trial may be overruled in the trial court’s discretion, which discretion “should not be disturbed on appeal unless some legal right was abused and the record plainly and palpably shows that the trial court was in error.” Trans-South-Rent-A-Car, Inc. v. Wein, Ala., 378 So.2d 725 (1979). In light of these well-established legal principles, we cannot say that there was not even a scintilla of evidence introduced upon the trial of this case that was in conflict with other evidence also produced in this case, or that the record before us plainly and palpably demonstrates that a legal right of appellant was abused by the circuit court’s refusal to grant her a new trial.

As previously noted, § 27-14-7 of the 1975 Code of Alabama permits an insurer to avoid liability on a contract of insurance for misrepresentations and incorrect statements made by the insured in his application for insurance if such misrepresentations or statements are (1) fraudulent; (2) material either to the acceptance of the risk or the hazard assumed by the insurer; or (3) such that the insurer would not have issued the contract or provided coverage with respect to the hazard resulting in the loss if the true facts had been made known to the insurer as required by the application for the policy. Hence, appellee could legally refuse to pay any death benefits to appellant if it proved that Gordon T. Inglish made misrepresentations or incorrect statements with regard to his medical condition or history in his application for insurance and that such misrepresentations or statements fell within any one of the three aforementioned categories. Conversely, ap-pellee could not escape liability on the policy if no misrepresentations or incorrect statements were made in the application. The answers which Gordon Inglish furnished to questions 26-30 of the application could be considered misrepresentations or incorrect statements only if, at the time of providing them, he actually knew or believed that they were false or otherwise inaccurate. Appellee could not legally refuse to pay the face amount of the policy to appellant simply by demonstrating that Gordon Inglish might have constructively known or believed that some or all of his answers to his application were false or incorrect. See Old Southern Life Insurance Co. v. Woodall, 295 Ala. 235, 326 So.2d 726 (1976), appeal after remand, Ala., 348 So.2d 1377 (1977). Appellee asserts that Sergeant Inglish (1) misrepresented the date of his latest physical examination, (2) neglected to state that he had received medication or medical treatment as a result of this examination, (3) failed to list all physicians who had examined or treated him within the past five years, the purposes of such examinations or treatments and the dates on which same were conducted, (4) stated falsely that he never had heart disease nor had been treated for heart disease, and (5) could not possibly have believed that he was in good health when he applied for insurance with appellee. Inasmuch as there is evidence in the record to support appellee’s assertion that Sergeant Inglish failed to list on his application for life insurance all physicians who had examined or treated him within the preceding five years, we are of the opinion that appellee is entitled to avoid liability on its policy to appellant under § 27-14-7 of the 1975 Code of Alabama and therefore pretermit discussion of the validity of the remaining four contentions presented by appellee. On his application for insurance Sergeant Inglish made no effort to provide United Services with even a partial list of all physicians who had examined or treated him from 1972 to 1977, explain the purposes of such examinations or treatments, or divulge on what dates they occurred. He simply referred it to his annual Air Force physical examinations. Records of those examinations disclose that Sergeant Inglish, in a medical history report completed by him on May 3, 1977, stated that he had consulted or had been treated by a physician within the past five years for a hiatal hernia. On cross examination by counsel for appellant, appellee’s vice president of underwriting, Don Mani-gold, stated, in substance, without objection that United Services would not have issued a life insurance policy on the life of Sergeant Inglish or would not have issued such policy at the rate that it issued it to decedent had it known that he had consulted or had been treated by a physician within the past five years for such an ailment. By this testimony, United Services was obviously attempting to establish its statutory right to avoid liability on the policy it issued to the sergeant under § 27-14-7(3) of the 1975 Alabama Code. Of course, it could only escape liability on the policy through the medium of this Code section by demonstrating that Sergeant Inglish’s response to question 28 constituted a knowing misrepresentation by him of his medical history at the time he completed his application for life insurance. He acknowledged that he was suffering from a hiatal hernia in a medical history completed by him as part of a retirement physical on May 3, 1977, over one month before he applied for life insurance with appellee. Hence, at the time he completed the application, he knew that he had been treated for a hiatal hernia within five years preceding the date of the application. But could the jury have reasonably concluded that decedent’s response to question 28 of the application, i. e. “Annual A. F. Physical,” was tantamount to a misrepresentation of his medical history in that it attempted to conceal a physical ailment of the decedent from the insurer’s knowledge so that it would not hesitate to extend life insurance coverage to decedent at a standard premium rate? We think so and for this reason are of the opinion that its verdict cannot be set aside. Appellant argues that appellee could have obtained knowledge of Gordon Inglish’s history of hiatal hernia trouble before issuing a policy on his life by examining his Air Force medical records, which it failed to do although decedent had given appellee written authorization to inspect them. Therefore, according to this argument, decedent did not misrepresent his medical history to United Services in answering question 28 of his application for insurance. We do not agree. Ap-pellee’s vice president of underwriting testified that United Services only examined an applicant’s medical records if his answers to his application revealed problems with his health. If his application disclosed no such problems, a policy of insurance would be issued on his life at a standard premium rate. Because the responses furnished by Sergeant Inglish to questions 26-30 of his application for life insurance with appellee did not indicate to United Services that Inglish had or was experiencing health problems, it had issued a policy on his life without examining his Air Force medical records. Thus, the jury could have concluded that a reasonable insurance company would not have been put on notice that Gordon Inglish’s answer to question 28 of his application was false or misleading and that, therefore, appellee was under no obligation to examine decedent’s medical records before issuing a policy of insurance on his life. See Bankers Life & Casualty Co. v. Long, Ala., 345 So.2d 1321 (1977). Having determined that Gordon Inglish misrepresented his medical history to appellee in his application for insurance and that appellee in good faith would have declined to issue an insurance policy on decedent’s life or would have insured decedent’s life only at a higher premium rate had it known at the time it accepted the application that he was suffering from a hiatal hernia, our only alternative to uphold the jury’s verdict in this case.

Appellant’s final contention for reversal relates to a statement her counsel made to the jury in closing argument and to which the trial court sustained an objection. In substance the statement to the jury was that if appellee failed to prove that Sergeant Inglish was suffering from anything other than heart disease at the time he applied for insurance, they should return a verdict for appellant. Appellant argues here that appellee could avoid liability under the policy only by showing that Inglish was actually afflicted with heart disease at the time of the application. As noted in our discussion of the other issues raised by this appeal, this was not the theory on which this lawsuit was tried.

The proper theory upon which this case was tried concerned whether Sergeant Inglish made misrepresentations in his application for insurance and whether appellee would have issued the policy of insurance had it known the true facts respecting his medical condition or history at the time it accepted the application. Hence the trial court did not err in sustaining appellee’s objection to the statement made by appellant in closing argument to the jury.

The judgment of the circuit court is affirmed.

AFFIRMED.

WRIGHT, P. J., concurs.

HOLMES, J., concurs in the result.


author: TORBERT, Chief Justice.

text:
    Ex parte Bonnie Lummus INGLISH. Re Bonnie Lummus INGLISH v. UNITED SERVICES GENERAL LIFE COMPANY, an Oklahoma Corporation.
    80-130.
    Supreme Court of Alabama.
    Feb. 20, 1981.
    Harold Howell of Howell, Sarto & Howell, Prattville, for petitioner.
    Charles B. Paterson of Ball, Ball, Duke & Matthews, Montgomery, for respondent.
   TORBERT, Chief Justice.

By denying the petition, we should not be understood as agreeing with the treatment of the evidentiary issue in this case by the Court of Civil Appeals, 394 So.2d 960.

WRIT DENIED.

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


author: TYSON, Judge.

text:
    Martin DURDEN v. STATE.
    3 Div. 138.
    Court of Criminal Appeals of Alabama.
    June 30, 1980.
    Rehearing Denied July 29, 1980.

      William J. Baxley and James S. Ward of Baxley, Stuart, Ward & Dillard, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen., and Helen P. Nelson, Asst. Atty. Gen., for appellee.
   TYSON, Judge.

Martin Durden was indicted in six counts for violating the Alabama Uniform Controlled Substances Act, § 20-2-70, Code of Alabama 1975 (Acts 1971, No. 1407, p. 2378, § 401[a]). Two of said counts charged Dur-den with the unlawful sale of cocaine, two counts charged unlawful possession of cocaine, and two charged unlawful possession of marijuana. Durden pleaded “not guilty” and “not guilty by reason of insanity to each count, and the counts were consolidated for trial. Durden was found guilty by the jury on all counts. The court sentenced him to serve fifteen years in the penitentiary and pay a five thousand dollar fine on each count of selling cocaine, said prison terms to run consecutively^ Additionally, Durden was sentenced to serve five years in the penitentiary for each remaining count, said terms to run concurrently with the two fifteen year terms. Durden’s application for new trial raised the issues presented by this appeal and after a hearing the trial court overruled the motion. Durden has been represented at all stages by retained counsel.

On February 28, 1979, officers of the A.B.C. Enforcement Division, Montgomery Police Department, and Montgomery Sheriff’s Department seized quantities of cocaine and marijuana from appellant’s residence on Pike Road and his place of business, David’s Den, both located in Montgomery County, Alabama. The raids were conducted pursuant to two search warrants issued by two District Court judges upon the affidavits and personal examination of one Michael True. The sufficiency of these warrants was challenged by appellant at a pretrial motion to suppress hearing on the ground that the supporting affidavits were faulty. After a hearing, the trial judge overruled the motion.

At trial, the first witness for the State of Alabama was Michael True, who testified that he knew the appellant and had worked for him at various times, both at appellant’s farm and at David’s Den. True, by his own admission a user and dealer in narcotics, related that he had obtained cocaine from appellant on several occasions and had sold cocaine to one Gater Black, whom he later discovered to be A.B.C. Undercover Agent Larry Payne, on three occasions in early January, 1979. On the third occasion, True stated, he sold the cocaine to Gater Black at a Montgomery apartment complex and subsequently delivered the money he received for the sale to appellant, who was waiting in a nearby parking lot. True testified that he took the money to a bank at appellant’s request and changed the larger bills for smaller ones, then returned this money to appellant at David’s Den.

The witness testified further that he was arrested in late February, 1979, for selling the cocaine, and conveyed to Montgomery Police Department Headquarters where, in cooperation with A.B.C. Enforcement Agent Don Williams, he placed a telephone call to appellant to arrange another cocaine buy. After talking with appellant, True related he was wired with a transmitter and accompanied Agent Williams, A.B.C. Agent Jack Bell, and several others to appellant’s mobile home. At the mobile home, True purchased some cocaine from appellant, which cocaine was turned over to the officers later that night. True stated that the next day he once again arranged to purchase some cocaine from appellant, this time at David’s Den. This transaction was also completed after initial misgivings by appellant that he was being “set up.” True further testified that he told the officers where appellant kept his marijuana at his residence, and that appellant had secreted some cocaine in an address book at his David’s Den office. True admitted to being involved in the sale of drugs and cooperating with the authorities because of his own arrest on the charges of selling cocaine.

Allen Adair, a criminalist with the State Department of Forensic Sciences, testified that he had received three items of evidence, one directly from A.B.C. Agent Larry Williams, and the other two from Lonnie Harden, another employee of the same department, who had in turn received them from Williams. Adair stated that he analyzed the items and found them to contain 3.6 grams, 1.2 grams, and 16 grams, respectively, of cocaine. Adair identified a fourth exhibit as one which had been submitted by A.B.C. Agent Charles West, and which contained .9 of a gram of cocaine. Likewise, the witness identified a fifth exhibit as one which he had received from Criminalist Thomas Hopen, who had in turn received it from A.B.C. Agent David Duke, and stated that it contained a quantity of cocaine, weighed by Mr. Hopen to be 1.96 grams. A sixth exhibit was identified by the witness to contain 9.4 grams of marijuana, 29 milligrams of cocaine, and one tablet of diazep-am (valium). A seventh exhibit was identified as containing 1.6 grams of cocaine and 33 grams of marijuana.

Larry Payne testified that he had been an undercover narcotics agent with the A.B.C. Enforcement Division during early 1979, and had been using the alias “Gater Black” at that time. Payne stated that he had purchased cocaine from Mike True on three separate occasions in early January, 1979, and identified the three exhibits first identified by Mr. Adair as the cocaine which he had received and subsequently turned over to Agent Williams.

Thomas Hopen, a criminalist with the Department of Forensic Sciences, testified to having received and weighed an item from Agent David Duke, subsequently turning it over to Allen Adair.

Lonnie Harden, a firearms and toolmark examiner for the same department, testified to receiving two envelopes from Larry Williams, but could not positively identify them in court.

Don A. Williams, a narcotic investigator with the A.B.C. Enforcement Division, testified that he had arrested Mike True on February 27, 1979, and had taken him to the Montgomery Police Department Headquarters. The witness related that he had asked True to help him apprehend True’s supplier. Williams stated that True gave him a phone number, which Williams dialed, and that True had a subsequent conversation, which Williams recorded. Williams testified that he verified the phone number as that of Martin Durden through the Montgomery telephone directory. The tape recording was admitted into evidence and played for the jury. Subsequently, the witness stated, he accompanied True to appellant’s trailer and monitored the conversation between True and appellant from a parked car some distance away by means of the hidden transmitter on True’s person. Williams stated that True had been supplied with marked money with which to make the purchase. After the meeting, the witness and True returned to the police station where True completed an affidavit, which True later signed in the presence of a district judge.

Williams further testified that he directed True to again contact appellant about purchasing cocaine, that True was supplied with marked money, and that True then went to David’s Den. Upon True’s return, he was searched and two packages of cocaine removed. The witness initialed the packages and gave them to Agent Duke, and subsequently was able to identify them from the witness stand. Williams stated that he accompanied True before the district judges and witnessed True sign the affidavits in the judges’ presence. He further testified that he accompanied those officers conducting the subsequent searches of appellant’s business and home, but was unable to locate any of the marked money.

A.B.C. Agent David Duke stated that he had received one exhibit from Agent Williams and had transferred it to Mr. Hopen. After his identification, the evidence was admitted over appellant’s objection. A.B.C. Agent Jack Bell testified that he had followed True to appellant’s home on the night of February 27,1979, and had tape recorded True’s conversation with appellant through the use of the hidden transmitter and a walkie-talkie, with the aid of Agent Charles West. The witness identified the tape, but appellant’s objection to its admissibility was sustained. The witness further stated that he flew a helicopter, keeping appellant under surveillance the next day. A.B.C. Agent Charles West stated that he recorded the serial numbers of the money given to Mike True for the purchase of cocaine, but had been unable to later locate the money during the search at David’s Den. The agent identified an exhibit as the cocaine which True had brought back from his visit to appellant’s mobile home, which exhibit West transferred to Allen Adair.

A.B.C. Agent Van Kominisky testified to participating in the search of appellant’s trailer and finding a fruit cake can containing marijuana and cocaine on the refrigerator in the trailer. This evidence was admitted over appellant’s objection. Montgomery Police Officer Joe Kyser testified that he was present at David’s Den when Agent Larry Williams discovered a quantity of marijuana. The witness stated that he assumed possession of the marijuana and subsequently transferred it to Mr. Adair.

The final State’s witness was A.B.C. Agent Larry Williams, who related that he had participated in the search of David’s Den, and had discovered cocaine secreted in a desk book, and marijuana in a box in an adjoining storage room. He further stated that he had received several packages of cocaine from Larry Payne and had conveyed them to the toxicology laboratory. Finally, he testified that Mike True had told him exactly where the cocaine would be at David’s Den.

The State rested, and appellant’s motion to exclude for insufficient corroboration, insufficient evidence to establish possession, and the failure of the State to show a prima facie case, was overruled on all counts.

The only defense witness was Vicki Spears, who testified that she worked at David’s Den and dated appellant off and on. She testified that she knew Mike True and had heard him speak of using and selling drugs on several occasions. She further related that, on January 4, 1979, she had conveyed appellant to the hospital because of his illness and that she had remained with appellant during the day and night. She stated that appellant had not left David’s Den that day, and that True had not come there that day, but had called several days before appellant was arrested about selling appellant some cocaine. She further testified that she had never heard that appellant either used or sold drugs.

I

Appellant initially contends that certain questions and remarks made by the prosecutor during the course of the trial were so prejudicial and improper as to deny appellant the benefit of a fair trial. The first specific instance of such conduct complained of by appellant concerns a question asked of State’s Witness Larry Payne during redirect examination by the prosecutor (R. 121):

“Q. He [meaning Mike True] was selling to others for Martin Durden?
“MR. BAXLEY: We move for a mistrial.
“MR GILLIS: Defense counsel is asking for ....
“MR. BAXLEY: No, sir. We haven’t
“THE COURT: We will have a legal conference at this time.
“(At this time, an at-bar discussion out of the hearing of the Jury and the court reporter. Subsequent thereto, the following was had and done of Record.)
“THE COURT: Anything else?
“MR. GILLIS: I have nothing further to ask of this witness.”

Neither motion to strike nor curative instructions were requested or given, and the Court’s precise ruling on appellant’s motion for mistrial does not appear in the record. It is appellant’s contention that the prosecutor’s question is to be analogized to the situation where a prosecutor attempts to inject irrelevant or illegal evidence for the purpose of prejudicing the defendant. While such practices have been roundly condemned by this Court as unprofessional, e. g., Bezotte v. State, Ala.Cr.App., 358 So.2d 521 (1978), close scrutiny of the instant situation does not disclose the presence of those factors so evident in the cases cited by appellant, i. e., the fact that an “attempt upon the solicitor’s part to inject into this trial this patently illegal, irrelevant, immaterial, and incompetent evidence was repeated several times,” Whitfield v. State, 21 Ala.App. 490, 491, 109 So. 524 (1926), or that the questions “implied the existence of factual predicates which the examiner knew he could not support by evidence,” Young v. State, Ala.Cr.App., 363 So.2d 1007 (1978); Bezotte, supra.

We should not be understood as approving of this question as asked, for it was certainly objectionable in this situation and indeed the subject of timely objection. But the witness did not interject an answer

to the question, and no ruling adverse to appellant from the trial court appears from the face of the record. “This court may only review rulings of the trial court which are adverse to the appellant ... [Likewise, it is a well-settled rule that improper questions which are not answered are harmless.” Kennedy v. State, Ala.Cr.App., 373 So.2d 1274 (1979); Rupert v. State, Ala.Cr. App., 374 So.2d 451 (1979); Jones v. State, Ala.Cr.App., 356 So.2d 728, cert. denied, Ala., 356 So.2d 735 (1978). It is, of course, axiomatic that the grant or denial of a motion for mistrial is a matter within the sound discretion of the trial court which will only be disturbed upon a showing of manifest abuse; no such abuse is evident here. Shadle v. State, 280 Ala. 379, 194 So.2d 538 (1967); Kennedy v. State, supra; § 12-16-233, Code of Alabama 1975.

The second instance of allegedly prejudicial conduct occurred during the State’s cross-examination of the lone defense witness, Vicki Spears (R. 253):

“Q. Now, does he own any race horses?
“A. He does race horses.
“Q. Well, I understand he raises them, how many race horses does he ....
“MR. BAXLEY: I don’t know what the purpose of this is, but I think it may be an attempt to prejudice the Jury.
“THE COURT: Are you objecting, sir?
“MR. BAXLEY: Yes, sir.
“THE COURT: On what ground?
“MR. BAXLEY: On the ground of relevance.
“THE COURT: What is the relevancy?
“MR. GILLIS: Your Honor, I would like to show that he is a supplier of drugs, a dealer of drugs. And you have heard testimony from Mike True ....
“MR. BAXLEY: We object to him testifying.”

Appellant failed to make either a motion to strike or a motion for mistrial, and now seeks to argue that the prosecutor’s statement concerning appellant as a supplier or dealer of drugs was so prejudicial as to deny appellant a fair trial. This contention is without merit in that it was a fact obvious to the jury already that appellant was on trial for selling drugs and that the State would be attempting to show this. Additionally, the prosecutor appears to have only made an attempt to answer the trial judge’s query as to the relevancy of the line of inquiry. Finally, the only objection made by counsel for appellant related to the prosecutor “testifying.” It is well settled in our law that an accused objecting at trial is bound on appeal by those grounds stated during trial. Williams v. State, Ala.Cr. App., 377 So.2d 634 (1979); Sprinkle v. State, Ala.Cr.App., 368 So.2d 554, writ quashed, Ala., 368 So.2d 565 (1978). No reversible error appears in this instance.

II

Appellant next argues that the two search warrants employed by the officers in searching appellant’s home and David’s Den were invalid because the supporting affidavits were fatally defective. It appears that the gist of appellant’s argument is that it did not appear from the affidavits that the informant had a past history of reliability, despite the fact that the informant’s name was known and he appeared before the issuing judges for examination concerning the affidavits. These contentions were advanced to the trial court at the pretrial motion to suppress hearing, and the court subsequently overruled the motion. An examination of the trial record, however, reveals that the search warrants and underlying affidavits are not contained therein, though apparently considered during the motion hearing and quoted to some degree in appellant’s brief. Several decisions of this Court have confirmed the rule that “an affidavit and search warrant not contained in the record on appeal cannot be considered on review of the trial court’s ruling as to its sufficiency or any of the underlying circumstances supporting the warrant.” Conner v. State, Ala.Cr.App., 382 So.2d 601, 604 (1979), cert. denied, Ala., 382 So.2d 605 (1980), and the cases therein cited. There is, of course, a duty on appellant of checking the record before submitting it on appeal, it being his burden to file a timely and correct record. Orum v. State, 286 Ala. 679, 245 So.2d 831 (1971); Conner, supra; Tyus v. State, Ala.Cr.App., 347 So.2d 1377, cert. denied, Ala., 347 So.2d 1384 (1977). Because of this deficiency in the record, we cannot consider this issue in deciding this appeal.

Ill

Appellant’s third contention is that the trial court erred in overruling appellant’s motion to exclude the State’s evidence as to the possession counts at the conclusion of the State’s case-in-chief. Specifically, appellant contends that there was insufficient evidence to indicate beyond a reasonable doubt that the appellant had either control over or knowledge of the cocaine and marijuana seized at his home and place of business. This issue was presented in appellant’s motion for new trial, which motion was overruled.

“In a prosecution for unlawful possession of narcotics it is not necessary to prove manucaption but constructive possession may be shown, and where such possession is relied upon the State must also prove beyond a reasonable doubt that the accused knew of the presence of the prohibited substance. Rueffert v. State, 46 Ala. App. 36, 237 So.2d 520; Spruce v. State, 43 Ala.App. 487, 192 So.2d 747. See cases in 16 Alabama Digest, Poisons, Keynote 9.
“Such guilty knowledge may be established by circumstantial evidence and guilt does not necessarily depend upon ownership. Parks v. State, 46 Ala.App. 722, 248 So.2d 761.”
Daniels v. State, 49 Ala.App. 654, 275 So.2d 169 (1973).

Of course, such knowledge may be shown by circumstantial evidence. McCord v. State, Ala.Cr.App., 373 So.2d 1242 (1979); Blaine v. State, Ala.Cr.App., 366 So.2d 353 (1978).

During searches of appellant’s residence and David’s Den, cocaine and marijuana were discovered. In both instances, we believe that the evidence adduced was more than sufficient to permit the inference that appellant knew of the presence of these substances:

AT APPELLANT’S RESIDENCE
(a) The mobile home on Pike Road was appellant’s residence, and no one else was shown to have lived there, though there was testimony that appellant kept a key in an external position.
(b) The State’s primary witness, Mike True, testified as to having been to appellant’s trailer, to having first used cocaine there at the behest of appellant, and to knowing where appellant secreted marijuana (in the can on the refrigerator). He testified that he told the officers this.
(c) True called appellant the night he went to the trailer and purchased cocaine and discussed purchasing the cocaine. This conversation was recorded and the tape admitted as evidence. There was testimony that the number dialed was that of appellant.
(d) True went to appellant’s trailer that night and purchased cocaine, according to his testimony. An officer testified that a search of True after this turned up cocaine.
(e) Pursuant to this information, a search warrant was obtained, the trailer searched the next day, and cocaine and marijuana located in the can on the refrigerator.
AT APPELLANT’S PLACE OF BUSINESS
(a) Appellant owned David’s Den and conducted a distributorship out of an office in the rear of the shop. There was testimony that he spent a great deal of time there tending to business.
(b) The day after the buy at appellant’s trailer, True testified, he went to David’s Den to buy cocaine from appellant. Appellant was unsure about selling it, so True left to get some screws in order to fasten a license plate on appellant’s car. This latter incident was corroborated by Vicki Spears. Upon his return, True stated, appellant sold him cocaine and returned a small excess to an address book on his desk. Upon his emergence from David’s Den, True gave officers the cocaine he had purchased,
(c) Pursuant to this information, the officers obtained a warrant, searched the office, and found the cocaine in the address book, and marijuana in an adjoining storage room where products for appellant’s distributorship were stored.

This sketch of the evidence adduced at trial certainly supports the inference that appellant knew of the drugs stored in both locations. This evidence thus raised a question of fact for determination by the jury, and, as it supports their determination of guilt, the actions of the trial court, in overruling appellant’s motion to exclude and motion for new trial, were not error. Young v. State, 283 Ala. 676, 220 So.2d 843 (1969); McHellen v. State, Ala.Cr.App., 351 So.2d 689 (1977).

IV

Appellant next complains that he was prejudiced before the jury by the introduction of one State exhibit over objection of appellant, which exhibit was, in the words of the officer seizing it:

“... [A] one-half pound fruitcake can. And inside the can was a small vial that contained cocaine. A large baggie contained a small amount of marijuana. One ten milligram valium tablet and numerous articles of paraphernalia.”

Appellant objected and moved to exclude the evidence because it contained the vali-um tablet, and appellant was not being tried for unlawful possession of valium. This motion was overruled, and appellant urges that the presence of the tablet in the exhibit prejudiced him. There is no merit in this argument.

In Morrow v. State, 52 Ala.App. 145, 290 So.2d 209, cert. denied, 292 Ala. 743, 290 So.2d 213 (1974), this Court allowed the State to introduce a bag containing both marijuana and LSD, despite the fact that the appellant there was on trial only for possession of LSD:

“Even though the Marihuana is evidence of another distinct criminal act, it was admissible as relevant to the crime charged as being part of the same transaction, and therefore part of the res ges-tae. Lambert v. State, 48 Ala.App. 600, 266 So.2d 812; Mason v. State, 259 Ala. 438, 66 So.2d 557; and Grant v. State, 250 Ala. 164, 33 So.2d 466.”

The Morrow decision was cited by our Supreme Court with approval in Brantley v. State, 294 Ala. 344, 317 So.2d 345 (1975), where that Court concluded that evidence of other drugs and paraphernalia was relevant to show the “ ‘complete story’ ” and reflect upon intent to merely use or sell. Under the facts and rationale of these two decisions, it is evident that the trial court did not commit error in admitting the fruit cake can containing the various drugs. Green v. State, Ala.Cr.App., 384 So.2d 1215 (1980). The decision in DeGruy v. State, 56 Ala.App. 521, 323 So.2d 406, cert. denied, 295 Ala. 399, 323 So.2d 411 (1975), cited by appellant, is factually inapposite.

V

Finally, appellant “most earnestly” contends that the court below erred in failing to properly qualify the jury venire, and urges reversible error because appellant was not present when members of the ve-nire were excused. Specifically, appellant argues that the duty judge for the week of his trial did not comply with the demands of § 12-16-6, Code of Alabama 1975, in asking of the entire venire those items contained in § 12-16-150, Code of Alabama 1975. In support of this contention, appellant has gone to great lengths to assemble supplemental transcripts and various affidavits to indicate that the jury was not properly qualified.

Section 12-16-6, Code of Alabama 1975, outlines the “duty of court to ascertain qualifications before administering oath to jurors,” and states:

“It is the duty of the court, before administering the oath prescribed by law to any grand, petit or tales jurors, to ascertain that such juror possesses the qualifications required by law, and the duty required of the court by this section shall be considered imperative.”

While the terms of this section do, as strenuously argued by appellant, make this qualifying process “imperative,” the appellate courts of this state have never held that an objection to a possibly unqualified venire may be raised at any point during or subsequent to the proceedings below. Instead, the prevailing rule, as enunciated by this Court in Andrews v. State, Ala.Cr. App., 359 So.2d 1172 (1978), provides that:

“If counsel is to question or object to the jury venire, he must do so prior to the impanelling and swearing in of the jury. Failure to make a timely objection waives the right to question the jury’s qualifications, and appellant may not complain for the first time on motion for new trial nor on appeal to this court. Douglas v. State, 50 Ala.App. 602, 281 So.2d 652 (1973); Yancey v. State, 56 Ala.App. 577, 324 So.2d 292 (1975); Hurley v. State, Ala.Cr. App., 341 So.2d 494 (1976), cert. denied, Ala., 341 So.2d 497.”

Careful scrutiny of the supplemental transcript filed with the record indicates that not only did appellant not make a timely objection, but spurned an offer by the trial judge to recall the venire and satisfy any doubts that appellant had. In order to demonstrate this, we quote at length from the transcript. After the trial court had examined the jurors at length over possible bias, we find the following took place (Supp.Trans., p. 9):

“THE COURT: Is there anybody on the Jury Venire who is under nineteen years of age or over sixty-five years of age? Anybody under nineteen, first?
“(There being no response, the Court continuing.)
“All right. Let me get the names of the ones in the other catagory now.
“THE COURT: Any additional questions from either side?
“(At this time, an at-bar discussion was had out of the hearing of the Jury Ve-nire.)
“MR. BAXLEY: We would like to challenge for cause those over sixty-five.
“MR. BELL: And we would object.
“THE COURT: We will remove those that said they were sixty-five and that includes the one that was sixty-five.
“Anything else ?
“MR. BELL: We would like to state for the Record that we object to the striking off of those jurors that are over sixty-five, and we also object to it on the ground it is unconstitutional.
“THE COURT: Anything further?
“(There being no further response, the Jury was selected at this time, placed in the Jury Box and administered the Oath of Service by the Clerk ....)
“(At this time, the Jurors were removed from the Courtroom, and the following was had and done of Record.)
“MR. LOWERY: If the Court please, I have a motion I want to put in the Record, that the Defendant would object to the Jury that is impaneled to try this case on the grounds it was not qualified before according to Title 12, Section 16-6.
“THE COURT: What does that say?
“THE COURT: Well, they were qualified this morning. Well, let’s get this in the Record, because it would not be in this Record.
“All of the Jurors, including these Twelve and the Panel that we selected these from were all qualified on the general qualification as to the residents of this County, as to everything else that the law states in our Jury Orientation — The way to do this orientation. All Jurors are in one group and then the presiding Judge, in this case, Judge Taylor, asked them all of the questions that the law says we should ask them as far as their qualifications. And if you want this Record to show it, go get my Jurors Orientation Book, and I will state in the Record exactly what questions were made. We will just make officially and formally— We will make the Record that was kept this morning, if there was one, a part of this Record. And if there was not one, then I will get it and if you file such a motion to have it included, I will have Judge Taylor file exactly what he did ask them and our orientation as well and this Record should affirmatively be and is hereby amended to show that.
“MR. LOWERY: The Defendant was not present at the time the questions were asked before Sam Taylor.
“THE COURT: He had an opportunity to be, or his lawyers did.
“MR. LOWERY: We would take issue about that.
“THE COURT: The Court asked the Jury all of the questions that the Court was called upon to ask them. And I will verify again, if you want me to, that these particular ones possess all of the required qualifications, if you ask me to.
“MR. LOWERY: We will file a motion and ask ....
“THE COURT: I am saying as soon as the Jury gets back, I will get just the questions that should be asked to them about the residence and everything else and ask them, if you want me to.
“MR. BAXLEY: Too late for us now, if they were not okay, so we would not insist ....
“THE COURT: It may or may not be too late. But I will ask them, if you so move.
“MR. LOWERY: We stand on our motion.
“THE COURT: If there is something in the Record that you want the Court to disclose, that you think you have a Jury that is not qualified, I will help you to find out. And it is not too late to find out.
“MR. LOWERY: We would like to see the transcript of the proceeding before Judge Taylor whereby the Defendant was not present.
“THE COURT: I do not know. But I will ask them if they are all residents of the County. And I did ask all of them if anybody was under nineteen and over sixty-five. I will ask them if anybody is afflicted with a permanent disease or weakness which makes them unfit and able to serve on a Jury. I will ask them if they are all able to read and understand English. And I will ask them if any of them have been convicted of an offense involving moral turpitude.
“MR. LOWERY: We would stand on our objection but would not object to the Court doing it Sua sponte.
“THE COURT: I am not going to do it Sua sponte, whatever that means. I will do it pursuant to your request.
“MR. BELL: Are you going to do that as to the ones struck? Of course, the State — It is not the State’s objection, but I have a feeling upon appeal, if the case gets that far, the probable argument would be that the folks struck probably should have been asked that, too.
“THE COURT: Well, I will bring them all back and ask the whole bunch if they want to. They can call down to the Jury Assembly Area and get them all back.
“MR. BAXLEY: Judge, we do not insist on that.
“MR. LOWERY: Now on our motion to suppress .... ” [Emphasis supplied.]

It is apparent from this extended exchange that appellant not only made an untimely objection, but proceeded to trial without availing himself of the remedies offered by the trial court. This Court noted in Murrell v. State, Ala.Cr.App., 377 So.2d 1102, cert. denied, Ala., 377 So.2d 1108 (1979):

“A defendant cannot by his own voluntary conduct invite error and then seek to profit thereby. Boutwell v. State, 279 Ala. 176, 183 So.2d 774 (1966); Aldridge v. State, 278 Ala. 470, 179 So.2d 51 (1965); Buford v. State, 214 Ala. 457, 108 So. 74 (1926); Barber v. State, 151 Ala. 56, 43 So. 808 (1907).”

Appellant has contended that the affidavits and record indicate that the jury judge did not comply with § 12-16-6, Code of Alabama 1975, in the first place. However, from our scrutiny of this matter, it is by no means clear that the duty judge did or did not do his imperative duty (See Volume Two, pp. 406-407).

“ ‘But very many things occur in the trial of such causes of which no record need be made, and yet they require affirmative action of the court, or of some ministerial officer. Ascertaining the qualifications of jurors is an example of this class of judicial questions .... When the record is silent on questions of these classes, this court presumes the trial court and its officers did their duty.’ ” [Emphasis in original.]
Winn v. State, 44 Ala.App. 271, 207 So.2d 138 (1968), quoting Washington v. State, 81 Ala. 35, 1 So. 18 (1887).

Appellant’s final point in his argument concerns the assertion that he was not present when the duty judge was supposed to have qualified the venire. His presence or lack thereof is immaterial, for the excu-sal of jurors is not required to be in the presence of accused except in capital cases. Andrews v. State, Ala.Cr.App., 359 So.2d 1172 (1978); Dean v. State, 54 Ala.App. 270, 307 So.2d 77 (1975).

We have carefully examined the record and find same to be free of error. The judgment and sentences set below are therefore

AFFIRMED.

All the Judges concur.


author: PER CURIAM.

text:
    Ex parte Martin DURDEN (In re Martin Durden v. State of Alabama).
    79-852.
    Supreme Court of Alabama.
    Feb. 6, 1981.
    William J. Baxley and James S. Ward of Baxley, Stuart, Ward & Dillard, Birmingham and Maury Smith and David R. Boyd of Smith, Bowman, Thagard, Crook & Cul-pepper, Montgomery, for petitioner.
    Charles A. Graddick, Atty. Gen., and Helen P. Nelson, Asst. Atty. Gen., for respondent.
   PER CURIAM.

Writ quashed as improvidently granted. By quashing the writ in this cause, we are not to be understood as approving the procedure of qualifying the jury with respect to individual pending criminal cases out of the presence of the defendant and his counsel. The writ is quashed because Petitioner’s objection to the composition of the jury came after the jury was impaneled and sworn; and, thus, this objection, although well taken, was untimely. Andrews v. State, 359 So.2d 1172 (Ala.Cr.App.1978).

WRIT QUASHED AS IMPROVIDENTLY GRANTED.

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

EMBRY, J., dissents.