text:
    James CANNON and Ashton Cannon, Jr. v. Karen JONES and Timothy Jones.
    Civ. 3295.
    Court of Civil Appeals of Alabama.
    Jan. 19, 1983.

      Geary A. Gaston of Reams, Wood, Voll-mer, Phillips, Killion & Brooks, Mobile, for appellants.
    L.A. Marsal and George L. Simons of Seale, Marsal & Seale, Mobile, for appellees.
   BRADLEY, Judge.

This is an appeal from an order granting a new trial.

On December 14,1979 the plaintiffs, Timothy and Karen Jones, were involved in an automobile accident with James Cannon, the defendant. The automobile driven by the defendant struck the plaintiffs’ car from the rear causing the Joneses’ car to collide with another automobile.

At the time of the accident, Karen Jones was four months into her second pregnancy. Her first pregnancy had ended in a miscarriage in the fourth month. The impact from the accident caused Karen Jones to be thrown to the floor of their automobile. She was taken to the Mobile Infirmary emergency room and was examined. Karen Jones was afraid that the accident had affected her baby’s development. Soon thereafter, she quit her job. The baby was healthy at birth and has experienced normal development.

Plaintiffs filed a negligence action in the Mobile County Circuit Court naming James Cannon and his father, Ashton Cannon, Jr., as defendants. The father was not in the car at the time of the accident. On March 18, 1982 a jury trial was held. Ashton Cannon, Jr.’s motion for directed verdict was granted as to him. The jury returned a verdict in plaintiffs’ favor and awarded Karen Jones $400 damages and Timothy Jones $100 damages.

The plaintiffs filed a motion for a new trial alleging that the judgment was grossly inadequate and that the judgment rendered was reached by averaging. The trial judge granted plaintiffs’ motion but gave no grounds for this grant in his order. Defendant brings this appeal.

Granting or denial of a motion for new trial is in the trial court’s discretion. The exercise of that discretion carries a presumption of correctness and will not be disturbed by this court absent plain and palpable error in exercise of the trial court’s discretion and abuse of some legal right. Educators’ Investment Corp. v. White, 374 So.2d 905 (Ala.Civ.App.1979). When the trial court grants a motion for new trial, without specifying the grounds, this court will presume that the lower court granted the new trial on the ground of inadequacy of damages. Smith v. Winkles, 49 Ala.App. 454, 273 So.2d 215 (Ala.Civ.App.1973).

Defendant asserts that the jury verdict should not be disturbed as being inadequate unless the verdict was produced by passion, prejudice, improper motive or influence on the jury. Montgomery Light and Traction Co. v. King, 187 Ala. 619, 65 So. 998 (1913); Alabama Farm Bureau Mutual Casualty Insurance Co. v. Anderson, 52 Ala.App. 651, 296 So.2d 739 (Ala.Civ.App.1974). Absent evidence of improper motive, prejudice or improper influence on the jury — and there is none in this case — however, the question in the case of inadequate damages is: does the verdict fail to give substantial compensation for substantial injuries? Smith v. Winkles, supra. The trial court should only use its power to set aside a jury verdict when it is apparent that injustice will result if another jury does not examine the facts. Alabama Farm Bureau Mutual Casualty Insurance Co. v. Anderson, supra; Watts v. Pettway, 49 Ala.App. 324, 272 So.2d 251 (Ala.Civ.App.1973).

Plaintiffs argue, as has been mentioned earlier, that the court’s granting of a new trial is in its discretion and is presumed correct. Hubbard Brothers Construction Co. v. C.F. Halstead Contractor, Inc., 294 Ala. 688, 321 So.2d 169 (1975). When the trial court grants a new trial on the ground of inadequate damages, this court must indulge this presumption unless the evidence plainly and palpably supports the verdict. Curry v. Griffith, 52 Ala.App. 644, 296 So.2d 733 (Ala.Civ.App.1974).

Testimony offered at trial showed that Timothy Jones received only a few bruises in the accident. Karen Jones received injuries to her back and neck and had several minor cuts as a result of the accident. She stayed in bed for five days after the accident and lost $65 in wages. When she returned to work six days after the accident, she could not perform her job because of the pain and stiffness in her neck and back. The pain in her neck subsided after a month but the back pain continued throughout her pregnancy. Karen Jones left her job after a month. Testimony was also presented that after the accident Timothy Jones had to perform the bulk of the household chores because his wife was physically unable to do the work.

Laura Smith, Karen Jones’s mother, rode with Karen and Timothy Jones to the emergency room. Mrs. Smith stated at trial that Karen was hysterical as she rode to the hospital. Karen was afraid she would lose the baby. After she was examined and released from the hospital, Karen remained upset and concerned about her baby’s well-being. Mrs. Smith also testified that the closer the time came for delivery, the more worried Karen became about whether the child was injured in the accident. Karen was afraid that the baby had sustained brain damage or would be born deformed.

Mrs. Smith further testified that Timothy Jones was also apprehensive about the baby’s birth. When his wife went into labor he became upset. Although he had attended classes so that he could be with his wife during delivery, he did not know if he would be able to witness the birth because he was afraid something would be wrong with the child.

It appears in this case that the trial judge granted a new trial because the jury had failed to award substantial damages for substantial injuries. Moreover, we cannot say that the evidence plainly and palpably supports the verdict. Given the strong presumption in favor of the trial court’s decision, we feel compelled to affirm its judgment.

In brief appellant argues that the trial judge stated, before the case went to the jury, that he would grant a new trial if the verdict was for less than $5,000. A careful reading of the record does not convince us that the trial judge committed himself to granting a new trial under such circumstances. Furthermore, as noted above, we believe the evidence supports the trial court’s judgment.

AFFIRMED.

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


source: Caselaw Access Project

author: BRADLEY, Judge.

license: Public Domain

text:
    Ex parte Jack DIAL. (Re Don J. MARTIN v. DIXIE DANDY, a corporation; Jack Dial and Brice Paul).
    Civ. 3493.
    Court of Civil Appeals of Alabama.
    Jan. 19, 1983.

      Kenneth T. Fuller of Cassady, Fuller & Marsh, Enterprise, for petitioner.
    Richard W. Whittaker of Pittman, Whit-taker & Pittman, Enterprise, for respondents.
   BRADLEY, Judge.

Petition for writ of mandamus to the Honorable Terry Butts, Circuit Judge, to require the judge to transfer this case from Coffee County to Geneva County. The writ is granted.

On March 9, 1982 Don J. Martin filed an action in Coffee County against certain named defendants for maliciously and without probable cause causing a criminal arrest warrant to be issued out of the Geneva County District Court for the offense of issuing a worthless check and causing him to be arrested on that charge in Coffee County. The defendants to this action were: “Dixie Dandy, a Corporation, and ABC, those person(s) firm(s), corporation(s) or other legal entities responsible, jointly or severally for swearing out a Criminal Arrest Warrant against Plaintiff on to-wit: 29 December, 1981 in Geneva County, Alabama in Case No. DC 82-180, whose true and correct names, descriptions and/or identities are otherwise unknown to Plaintiff but will be added or substituted by amendment when ascertained.” On April 7, 1982 plaintiff amended his complaint by substituting “Jack Dial, individually and/or owner of and/or d/b/a Geneva Dixie Dandy for fictitious defendant ‘A.’ ”

On April 9, 1982 Jack Dial moved to dismiss the action because of erroneous venue or, in the alternative, to transfer the case to Geneva County. The basis of the motion is that there is no corporation in Alabama known as “Dixie Dandy,” that Jack Dial is an individual doing business and residing in Geneva County, and that the cause of action did not arise in Coffee County.

On April 19,1982 plaintiff amended count two of his complaint by adding Brice Paul as Sheriff of Coffee County as a defendant. On September 10,1982, and after a hearing at which it was shown that Dial was an individual living and doing business in Geneva County and that the arrest warrant was obtained in Geneva County, respondent denied the request for a change of venue. This petition is a result of that order.

Petitioner contends that Geneva County is the proper county for the trial of plaintiff’s action because defendant Dial is a resident of Geneva County and the cause of action arose in Geneva County, i.e. the warrant of arrest was issued out of the Geneva County District Court. § 6-3-2, Code 1975. Consequently, the trial judge erred by not transferring the case from Coffee County to Geneva County.

Respondent replies that Dial’s request for change of venue was properly overruled. His argument is that Dial waived his venue objection because he failed to raise it in the first responsive pleading filed after Dial was served with a copy of the summons and complaint making him a party defendant. The amended complaint making Dial a party defendant was filed on April 7, 1982 but was not served on Dial until April 13,1982. Dial filed his motion for change of venue on April 9, 1982. Dial’s next pleading filed after April 13, 1982 was on May 24, 1982 when he moved the court to dismiss the complaint as amended for failure to state a claim upon which relief could be granted.

As to respondent’s argument that Dial waived his right to object to venue because he did not raise it in his first responsive pleading after being served with the amended complaint, we note that in Ex parte Smith, 423 So.2d 844 (Ala.1982), the supreme court said that rules 9(h) and 15(c), Alabama Rules of Civil Procedure, can be construed to permit the substitution of fictitious parties against whom a claim has been asserted to relate back to the date of the original pleading. In the case at bar it is clear that the complaint was amended to permit Dial to be substituted for fictitious party “A.” The original complaint alleged that fictitious party “A” was jointly responsible for swearing out an arrest warrant in Geneva County on December 29, 1981. Dial’s first responsive pleading, i.e. a motion, to the complaint was filed shortly after the original complaint was filed. Therefore the substitution of Dial for fictitious party “A” related back to the original complaint and the venue issue was raised by motion shortly thereafter. Thus, Dial properly and timely responded to the venue issue created by the complaint. Hence, respondent’s contention that Dial waived his objection to venue by not properly and timely responding to the amended complaint is erroneous.

Respondent also argues that venue was properly laid in Coffee County at the commencement of the suit because Dial caused plaintiff to be falsely arrested in Coffee County. He says that the tort of false arrest was committed in Coffee County and thus Dial could be sued in Coffee County. See § 6-3-2, Code 1975. Respondent relies on McPherson v. Gay, 217 Ala. 557, 117 So. 202 (1928), and argues that McPherson is factually on point with this case.

McPherson v. Gay, supra, involved the venue of a suit for false arrest and false imprisonment. McPherson, the defendant and sheriff, resided in Blount County and argued that he should be sued in that county. Plaintiff was arrested by defendant’s deputy in Jefferson County and the suit for false arrest was brought in Jefferson County. The court held that the tort of false arrest was committed in part in Jefferson County and, therefore, the suit could be tried in that county.

In response to respondent’s venue argument, we note that plaintiff was not arrested by Dial but was in fact arrested by the Coffee County sheriff. Consequently, Dial could not be charged with false arrest. Count two, the count in which plaintiff pleaded false arrest, was amended to add Sheriff Paul of Coffee County as a party defendant and charges him with false arrest because he failed to have the Geneva County arrest warrant endorsed by a magistrate in Coffee County as required by section 15-10-10, Code 1975, before he arrested the plaintiff. Although the false arrest count as amended could be tried in Coffee County, this count of the complaint was amended after Dial was substituted for fictitious party “A” and after Dial had objected to venue being in Coffee County and cannot now be considered as authorizing a trial in Coffee County of the complaint against Dial. See Ex parte Wilson, 408 So.2d 94 (Ala.1981). We should not, however, be understood as saying that Sheriff Paul must be sued on the amended count two in Geneva County. Respondent’s second argument is not persuasive.

Venue for the prosecution of this complaint against defendant Dial is in Geneva County and the trial court erred by not transferring it as requested.

The respondent has ten days from the date of this opinion to transfer this case from Coffee County to Geneva County. If the case has not been transferred by the tenth day from the date of this opinion, the writ of mandamus will issue requiring respondent to transfer this case in accordance with the opinion of this court.

WRIT GRANTED CONDITIONALLY.

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


text:
    John O. VETTER v. FEDERAL DEPOSIT INSURANCE CORPORATION.
    Civ. 3594.
    Court of Civil Appeals of Alabama.
    Jan. 19, 1983.
    George L. Simons, Mobile, for appellant.
    M. Mallory Mantiply of Hand, Arendall, Bedsole, Greaves & Johnston, Mobile, for appellee.
   EDWARD N. SCRUGGS, Retired Circuit Judge.

This is a promissory note case.

In 1971 Mr. Vetter executed a note for $15,504.68 to a certain Louisiana bank. On December 3, 1976 the Louisiana bank was declared insolvent by the state’s Commission of Financial Institutions and the note of Mr. Vetter was later sold to the Federal Deposit Insurance Corporation (F.D.I.C.). Thereafter, from January 12, 1977 to August 4,1978, Mr. Vetter made nine principal and interest payments to F.D.I.C. upon this note which totaled $3,273.62 according to the records of F.D.I.C.

F.D.I.C. sued Mr. Vetter upon the note for $6,670.80, plus interest, attorneys’ fees and costs. Mr. Vetter pleaded the general issue as his answer. Pursuant to Alabama Rules of Civil Procedure rule 36, Mr. Vetter was requested by F.D.I.C. to admit that a certain photostatic copy of the note sued upon, which was attached to the complaint as well as to the requests for admissions, was a genuine copy of the note executed to the Louisiana bank by Mr. Vetter on October 18,1971, and that there remained owing on that note the amount of $6,670.80 plus interest accruing from August 4, 1978. In his responses, Mr. Vetter admitted that the copy of the note was genuine and that he owed part of the debt evidenced by the note.

Immediately before the commencement of the testimony of the witnesses, the trial court inquired as to whether the only issue concerned the amount owed upon the note. The attorney for Mr. Vetter responded that he had some question about copies of the note, that the best evidence rule would require the production of the original and that section 7-3-307, Code 1975, would also require the plaintiff to produce the note in order to prevail in the suit. After further colloquy with the attorneys, the trial court stated, “I’m going to let the note in.”

Mr. Smith, a liquidator at large for F.D. I.C., testified, among other things, that he was familiar with the note in question and that the exhibit marked ás plaintiff’s exhibit 1 was a copy of the note. Upon the offer of that photostatic copy of the note into evidence, Mr. Vetter’s objection was, “Over my objection on the basis of the best evidence rule.” That objection was overruled by the court. Mr. Smith further swore that the original note was still in F.Di.C.’s records as far as he knew and that he did not bring it with him to the trial because he was not requested to do so. The attorney for F.D.I.C. stated that he had not anticipated any problem on that issue in view of Mr. Vetter’s response to the request for admissions.

Mr. Vetter did not testify as to any defensive matter, his sole evidence being, in substance, that the copy of the note which had been introduced into evidence was signed by him in New Orleans.

The trial court entered a judgment for F.D.I.C. and against Mr. Vetter for $10,620, which included attorneys’ fees and interest. The amount involved, excluding interest, does not exceed this court’s jurisdictional amount, hence the. recent transfer of this case to this court from the supreme court. Upon his appeal, Mr. Vetter argues that the trial court erred in admitting into evidence the photostatic or Xerox copy of the note over his objection.

• He first contends that production of the note was required by section 7-3-307(2), Code 1975. This section states that, when signatures are admitted or established, the production of an instrument entitles a holder to recover on it unless the defendant establishes a defense.

When the note was introduced into evidence, Mr. Vetter’s only objection was based upon the best evidence rule. The statement made to the court before the start of the testimony involving the requirements of that code section as one of the trial issues was not an objection as such. Indeed, if it was an objection, it was premature, for the copy of the note had not been introduced at that point. Stephens v. Central of Georgia Railroad Co., 367 So.2d 192 (Ala.1979). “Such matter was not called to the court’s attention at the time of the objection, and if of any merit, should have been. The ground now argued was therefore waived.” Ennis v. Whitaker, 281 Ala. 563, 206 So.2d 367 (1968). If specific grounds of objection are made to the introduction of evidence, all other grounds are waived. Vredenburgh Saw Mill Co. v. Black, 251 Ala. 302, 37 So.2d 212 (1948); Associates Capital Corp. v. Bank of Huntsville, 49 Ala.App. 523, 274 So.2d 80 (1973). Here, the only ground of objection which was made at the proper time to the introduction of the note concerned the best evidence rule. Any objection regarding the code section was therefore waived.

Mr. Vetter could not prevail on the merits of that issue, for the code section places no requirement in cases upon promissory notes that the original note must be produced as a prerequisite to recovery thereon. Even if a party suing upon a note is required to offer proof at trial that he then possesses the instrument sued upon, such would be a factual issue. Here, there was uncontroverted evidence that F.D.I.C. owned and was in possession of the note. Indeed, Mr. Vetter had made numerous payments to them upon this note over an extended period of time. The ore tenus rule is fully applicable to this issue and we are not authorized to cast aside the determination of the trial court thereon, for that court was not palpably wrong.

The second argument of Mr. Vetter is that the best evidence rule applied and that a photostatic or Xerox copy of the note was secondary evidence and was inadmissible unless it fell under an exception to that rule. Kessler v. Peck, 266 Ala. 669, 98 So.2d 606 (1957).

The responses of Mr. Vetter to the requests for admissions conclusively established that the copy of the note was genuine and that he owed some of the note’s indebtedness. Further, he testified at the trial itself that he signed the note in New Orleans and that his signature was upon the copy of the note. His responses to the requests for admissions and his trial testimony each constituted such admissions in court by Mr. Vetter as to render applicable the judicial admission exception to the best evidence rule. That exception is well stated as follows:

“If a party, while testifying as a witness, admits that a writing then exhibited to him is a correct copy of the original writing, the copy is admissible against him although no excuse is shown for non-production of the original. Stated differently, a party’s formal admission in open court that a document then before the court is a correct copy of the original, obviates any necessity for production of the original.
“It has also been held that, where a party admits the facts which a writing evidences, the opponent may offer secondary evidence without producing, or giving excuse for not producing, the original writing.” (Footnotes omitted.)

C. Gamble, McElroy’s Alabama Evidence § 227.02 (3d ed. 1977).

Because of the rule 36 admission of Mr. Vetter, as well as his testimony before the trial court, he cannot complain of the introduction into evidence of the photostatic copy of the note. His only stated objection to that evidence, the best evidence rule, had no application because of the judicial admission exception thereto. Kessler v. Peck, supra.

We affirm.

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

Affirmed.

BRADLEY and HOLMES, JJ., concur.

WRIGHT, P.J., concurs in the result.


text:
    Thomas H. COSBY, Sr. v. Elizabeth Ann COSBY.
    Civ. 3436.
    Court of Civil Appeals of Alabama.
    Jan. 26, 1983.

      James S. Hubbard, Anniston, for appellant.
    Ray F. Robbins, II, Talladega, for appel-lee.
   EDWARD N. SCRUGGS, Retired Circuit Judge.

This is a divorce case.

The only issue raised on this appeal is whether the trial evidence adequately established the existence of a common law marriage between the parties as was averred by the wife in her complaint for a divorce and other relief. After an eviden-tiary hearing before the trial court, a judgment was rendered which ascertained that the parties did enter into a common law marriage. The husband appeals. We affirm.

In viewing the record with the attendant presumptions which are accorded to the trial court’s findings after an ore tenus trial, we find the following evidence to be pertinent to the issue before us.

The parties were first divorced in July, 1980.

The husband testified that, shortly after their divorce, he told the wife that in God’s eyes they were still married and that, as far as he was concerned, he was still her husband and she was still his wife. She asked him whether or not they should go through another marriage ceremony and he responded that it was not necessary since in God’s eyes they were still married. He asked her to return and live with him and, shortly after the divorce, she did so and lived with him from that time until she left in 1982. They went to a few places together, such as to a church revival. He further stated that, during the time that they were living together, the wife held herself out in the community to her friends and to everyone else as being his wife and that he never told anyone differently. In December, 1981, they attended the wedding of one of their adult children together, went in at the same time, signed the quest book as “Howard and Ann Cosby” and were photographed with each other after the ceremony. ' During the time that they lived together in the home, the wife, apparently without any objection from the husband, utilized charge accounts and received statements from creditors which were billed to and directed to her as “Mrs. Thomas H. Cosby.” He authorized her to endorse his salary checks and to deposit them in a joint bank account.

Among other matters, a next door neighbor testified that the parties lived together for about one and one-half years after they went back together subsequent to their divorce. On several occasions she casually observed them jointly leave the home. She saw the wife bring groceries into the home.

Part of the wife’s evidence before the court was that they lived continuously together for about eighteen months, from approximately three months after the divorce until four months before their last trial on July 29, 1982. During that time they had sexual relations on numerous occasions, In that interval, as was their custom on special occasions, they registered as man and wife in two different motels. While living with her husband she had no relations of any character with another man. She held herself out as his wife and him as her husband.

For the same legal reasons as were stated in Walton v. Walton, 409 So.2d 858 (Ala.Civ.App.1982), including the ore tenus rule, we hold that the evidence amply supported the trial court’s decision that the parties were married according to the common law. There was credible evidence, most of it being from the husband himself, that, if believed, supplied the requisite proof of each of the elements which are necessary in order to prove a common law marriage. The trial court did not abuse its discretion. We affirm.

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

AFFIRMED.

All the Judges concur.


author: WRIGHT, Presiding Judge.

text:
    Mark Maxwell BOWDEN, A minor v. Barbara Morgan BOWDEN, Executrix of the Estate of William Anton Bowden, Jr., Deceased.
    Civ. 3593.
    Court of Civil Appeals of Alabama.
    Jan. 26, 1983.
    John Joseph Smith, Jr. of Smith & Smith, Birmingham, for appellant.
    L. Drew Redden of Redden, Mills & Clark, Birmingham, for appellee.
   WRIGHT, Presiding Judge.

This case originated from an order of the probate court of Jefferson County, denying a claim filed by the guardian of Mark Bow-den, a minor, against the estate of his deceased father. The denial of the claim was appealed to the circuit court. After hearing in circuit court, judgment was entered allowing the claim but ordering credit against it for social security payments received by the son after the death of the father.

FACTS

The parents of Mark Bowden were divorced in North Carolina in 1974. Prior to the divorce, the parents entered into a separation agreement. That agreement contained the following:

“6. The Husband agrees that commencing with the Month of December, 1974, and during each month thereafter, on specific dates to be agreed upon by the parties after the Husband’s pay dates are established, the Husband shall pay to the Wife for the support and maintenance of Mark Maxwell Bowden, the minor child born to the parties, the sum of $300.00, which payments shall continue until said child dies or attains the age of twenty-two (22) years, whichever first occurs. The Husband is presently unemployed. The amount of $300.00 to be paid each month for the support of Mark Maxwell Bowden by the Husband is based on his current annual salary of approximately $30,000.00. The Husband will voluntarily increase the monthly payments proportionately if his income increases. The Husband will promptly notify the Wife of any change in his salary, and will furnish the Wife with copies of his W-2 forms at the end of each calendar year so that she may verify his income. The parties agree that the Husband may hereafter claim Mark Maxwell Bowden as a dependent on his federal and state income tax returns. However, Husband may claim both Mark Maxwell Bowden and Wilson Livingston Bowden as dependents on his federal and state income tax returns for the year 1974.
“7. The Husband will purchase and maintain life insurance policies, term or ordinary life, sufficient to insure that the monthly payments for the support of Mark Maxwell Bowden provided for in this agreement shall be paid in the event of the death of the Husband, or in the amount of $40,000.00, whichever is less. If, and only if, the Husband shall fail to maintain an adequate amount of the aforesaid insurance, an amount equal to the difference in the amount of such insurance maintained and the sum of the monthly payments remaining to be paid at the date of death of the Husband shall be paid from the assets of the Husband’s estate. The Wife shall be named beneficiary in said insurance policies. If the total amount remaining to be paid for the support of Mark Maxwell Bowden at the date of death of the Husband is less than the total amount of the proceeds of the insurance policies provided for in this paragraph, the balance shall be paid by the Wife to the estate of the Husband.
“21. This agreement shall be construed and governed in accordance with the laws of the State of North Carolina.”

The father died testate in Jefferson County, Alabama, in 1980. His will was admitted to probate.

At the time of death the father did not have in effect the insurance policy as required in the agreement. Mark was under the age of twenty-two years. As provided by the agreement, claim was made against the estate for the lump sum amount of $29,400.00.

Mark had received Social Security benefits monthly in amounts exceeding $300.00 per month from the date of his father’s death in July 1980 through March 1982 in a total amount of $8,770.80. It is not clear what Mark’s age is at present, but it is noted in the decree of the circuit court that Social Security benefits were no longer payable to dependent children beyond age eighteen. The court also noted in its decree that North Carolina law was to be applied and that it is the law of that state that agreements to pay support past the legal age of eighteen are enforceable. However, the court determined that credit was due to be allowed against such support obligations for Social Security benefits received through the father’s account.

It is agreed that North Carolina law is to be applied in this case. However, it is our view that in this instance it is not materially different from that of Alabama. It is the law of North Carolina that an agreement between parents to support a child past the age of legal responsibility is enforceable as any other contract, even against the estate of the deceased parent. Church v. Hancock, 261 N.C. 764, 136 S.E.2d 81 (1964); Layton v. Layton, 263 N.C. 453, 139 S.E.2d 732 (1965); Harding v. Harding, 29 N.C.App. 633, 225 S.E.2d 590 (1976). This court has held that an agreement to support a child beyond attainment of majority will be enforced in a court of equity. See Scott v. Scott, 401 So.2d 92 (Ala.Civ.App.1981).

We have not been apprised of any North Carolina case, nor a case of any other state, decided entirely consistent with the facts of this case. However, we believe there are decisions which point logically to a proper conclusion in this case. The courts of North Carolina have held that credits against court-ordered child support may be allowed for contributions or expenditures made by the parent other than in the form and manner prescribed in the decree. Jones v. Jones, 52 N.C.App. 104, 278 S.E.2d 260 (N.C.App.1981); Goodson v. Goodson, 32 N.C. App. 76, 231 S.E.2d 178 (1977). More nearly to the facts of this case, this court in the case of Binns v. Maddox, 57 Ala.App. 230, 327 So.2d 726 (1976), held that Social Security payments received by the wife for the benefit of the children because of the disability of the father could be credited against his obligation for child support under a court decree.

Appellate courts of other states, as we pointed out in Binns, have reached the same conclusion. Other cases in other states following the same reasoning have been decided since Binns. Those we found are Newton v. Newton, 622 S.W.2d 23 (Mo.App.1981); Potts v. Potts, 240 N.W.2d 680 (Iowa 1976).

The principle of all the cases cited is that the purpose of Social Security is the same as that of an insurance policy with a private carrier, wherein a parent insures against death or loss of physical ability to fulfill moral and legal obligations to dependent children. The premiums on such insurance may be said to have been paid either by the parent or by the parent and employer. The benefits of Social Security are not gratuitous. The terms of “insured,” “insurance” and “beneficiary” are used throughout the Social Security Act. 42 U.S.C.A. Chapt. 7.

The Supreme Court of the United States has referred to the Social Security system as social insurance and has said the right to the benefits is in one sense earned. Flemming v. Nestor, 363 U.S. 603, 80 S.Ct. 1367, 4 L.Ed.2d 1435 (1960). It only seems logical to extend the holding of the cases cited to the facts of this case. We therefore hold that the death benefits paid to Mark Bowden from the Social Security account of his deceased father may be credited against the monthly obligations under the agreement of the parents. The evidence was that payments from Social Security were received by Mark or his guardian from August 1980 through March 1982 in monthly sums in excess of the $300.00 per month due by the agreement. Therefore no sums are now due for that period. The sum of monthly payments of $300.00 each from April 1982 until Mark reaches the age of twenty-two years is due and is a charge against the estate.

It is the further opinion of the court that the excess of the monthly Social Security payments over the amount of $300.00 per month is not due to be credited. The obligation of the parent was by agreement to be the payment of $300.00 per month until the age of twenty-two. Though crediting that sum, the fact that Mark received from Social Security an excess over that obligation is merely because of the determination of Social Security benefits due him. The excess was an extra benefit to Mark but did not decrease the obligation of the parent for ensuing months. Neither did the sum of the monthly excesses received provide credit for monthly installments not then due under the agreement. Andler v. Andler, 217 Kan. 539, 538 P.2d 649 (1975).

We are not clear whether this last part of our decision is contrary to the judgment of the circuit court. If it is we reverse the judgment in that part. If it is not contrary, we affirm the entire judgment. In either event, we direct entry of judgment below in accord with our decision and remand for that purpose.

AFFIRMED CONDITIONALLY.

BRADLEY and HOLMES, JJ., concur.


text:
    HARTSELLE REAL ESTATE AND INSURANCE CO., INC., A Corporation v. Gene R. ATKINS and Wife, Connie S. Atkins.
    Civ. 3271.
    Court of Civil Appeals of Alabama.
    Feb. 2, 1983.
    Arthur H. Groover, Hartselle, for appellant.
    J.N. Powell, Decatur, for appellees.
   WRIGHT, Presiding Judge.

This is an appeal by Hartselle Real Estate and Insurance Co., Inc., a Corporation (defendant), from the judgment of the circuit court in favor of Gene R. Atkins and wife, Connie S. Atkins (plaintiffs), denying defendant’s motion for judgment notwithstanding the verdict, or, in the alternative, for a new trial.

Plaintiffs’ complaint sought damages from the defendant alleging defective condition of a residential dwelling which the plaintiffs had purchased from defendant. A pre-trial hearing order limited the issues at trial to those evolving from count one of plaintiffs’ complaint which proceeds on a theory of misrepresentation or deceit.

The case was tried to a jury. At the close of plaintiffs’ case, defendant moved for a directed verdict. The court deferred a ruling. Plaintiffs were allowed to reopen their case without objection by defendant. At the second closing of plaintiffs’ case, defendant renewed its motion for a directed verdict. The court again deferred a ruling. Defendant again renewed its motion at the close of testimony. The court denied it.

The case went to the jury on the issue of misrepresentation and a verdict was returned in favor of plaintiffs with damages assessed in the amount $6,000. Subsequently defendant moved for judgment notwithstanding the verdict (JNOV), or, in the alternative, for a new trial. Both motions were denied. Defendant appealed.

We first address the issue of the denial of the motion for JNOV — a motion for JNOV tests the sufficiency of the evidence just as does the motion for directed verdict at the close of the testimony. Evidence sufficient to present the case to the jury against a motion for directed verdict is sufficient to withstand a motion for JNOV. Frederick v. Reed, 410 So.2d 95 (Ala.Civ.App.1982); Casey v. Jones, 410 So.2d 5 (Ala.1981).

The evidence presented on the basic issue of misrepresentation is largely undisputed. Defendant sold to plaintiffs a house. The house was not new and had been previously occupied. Defendant sold the previous owner another house and accepted the house in issue as a part of the bargain. After looking at the house, plaintiffs and defendant entered into a written contract for the purchase of it. The purchase price was $36,340. Plaintiffs testified that defendant’s salesperson told them the house was in very good condition, being built according to VA specifications; that it had no defects except some which were thereafter noted in the contract; that the house was very livable.

Plaintiffs made a $5,200 cash down payment and assumed a mortgage for $31,000. Within a week after plaintiffs moved into the house, a heavy rain occurred. As a result, water drained from the front of the lot in such quantity as to enter the house and stand in several rooms. Inspection disclosed the carpet was rotted in several areas. Such flooding continued to occur when it rained during the six months plaintiffs lived in the house. They ceased making payments after repairs failed to correct the flooding. Foreclosure followed.

The cause of the flooding was found to be from the drainage toward the house with improper or clogged sub-surface drainage around the foundation. Repairs were made to the drains. However, the subsequent purchasers stated that some flooding still occurred after heavy rains.

Defendant contends the evidence was insufficient in two areas to submit to the jury. The first is the failure to prove any legal damage. The basis of defendant’s contention is that there was no legal evidence presented as to the proper measure of damages.

The measure of damages in an action for misrepresentation in a sale such as this is the difference between the actual value of the property at the time of sale and what it would have been had it been as represented. Boriss v. Edwards, 262 Ala. 172, 77 So.2d 909 (1954); Martin v. Honeycutt, 341 So.2d 171 (Ala.Civ.App.1976). There was evidence of the sale price of the house — $36,400. That price set by the defendant may be considered to indicate the actual value of the house as it was represented to be by the seller. The plaintiffs testified that the house, after disclosure of its defects was actually worth only $30,000. Defendant complains that plaintiffs were not qualified to testify as to the value of the house. Such complaint is not well founded. An owner of realty may testify as to its value. Cinader v. Cinader, 367 So.2d 487 (Ala.Civ.App.1979). The weight to be given such testimony is for the jury. Hicks v. Huggins, 405 So.2d 1324 (Ala.Civ. App.), cert. denied, 405 So.2d 1328 (Ala.1981).

Defendant’s further complaint that the court erroneously permitted plaintiffs to reopen their evidence after resting in order to offer testimony as to damages is not well taken. The complaint is not well taken for two reasons. First: We find no objection to the court’s action in the record. Rule 46, A.R.Civ.P. Second: To permit the reopening after plaintiffs have rested is within the discretion of the court. State v. Alabama Public Service Commission, 293 Ala. 553, 307 So.2d 521 (1975); § 6-8-103, Code of Alabama 1975.

The second contention of insufficiency of the evidence to sustain the verdict is that plaintiffs failed to prove the charge of fraud — i.e., a false representation of material fact upon which plaintiffs relied. § 6-5-101, Code 1975. Defendant presents the proposition that the evidence fails to show a knowledge of the defective condition of the property or an intention to mislead plaintiffs. That proposition is made untenable by the very words of the statute and the numerous cases applying it. The “legal fraud” established by the statute is complete by the assertion as true that which is not true, even though believed to be true, and which is relied on with injury by the party to whom it is made. Maring-Crawford Motor Co. v. Smith, 285 Ala. 477, 233 So.2d 484 (1970); Hudson v. Moore, 239 Ala. 130, 194 So. 147 (1940). We have shown there was evidence of a statement by defendant’s agent that the house was in good condition and had no defects other than those specifically stated. The truth was clearly established to be to the contrary. Defendant’s argument that the statement was mere puffing or giving an opinion is untenable. The question of whether the statement is one of opinion or fact is usually one for the jury. Fidelity and Casualty Co. of New York v. J.D. Pittman Tractor Co., 244 Ala. 354, 13 So.2d 669 (1943). It is equally true that where there is evidence from which it may be reasonably inferred that plaintiffs were defrauded, the case must be presented to the jury. Mid-State Homes, Inc. v. Johnson, 294 Ala. 59, 311 So.2d 312 (1975).

Our review of the evidence convinces us that the case properly was presented to the jury and the verdict thereon was properly upheld. Dexter v. Baker, 382 So.2d 552 (Ala.1980).

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


text:
    Jack Edward CLARK v. Mattie Sharon Clark McGUFF.
    Civ. 3423.
    Court of Civil Appeals of Alabama.
    Feb. 2, 1983.

      Bayless E. Biles of Wilkins, Bankester & Biles, Bay Minette, for appellant.
    W. Kenneth Gibson of Taylor, Benton & Gibson, Fairhope, for appellee.
   BRADLEY, Judge.

This is an appeal in a divorce case.

Jack Edward Clark and Mattie Sharon Clark McGuff were divorced by a decree signed December 28, 1979 which awarded custody of the couple’s two minor children to the wife and ordered the husband to pay $450 per month child support and alimony. The decree further recited:

“4. The Respondent, Mattie Sharon Baggett Clark, is hereby awarded the possession of the parties’ home until such time as the parties’ youngest child is over the age of nineteen (19) years, at which time either of the parties will have the right to have said home sold at which time the equity in said home will be divided equally between the parties. The Petitioner, Jack Edward Clark, is hereby ordered to pay all house payments due up through January 1, 1980.”

The wife was ordered to assume responsibility for the house payments after the date specified in the decree. Thereafter, on November 13, 1980, the wife filed a petition for a rule nisi, claiming that the husband was not timely in making alimony and support payments, that two mortgages existed on the property, and that she was encountering difficulty in meeting her obligation to make house payments because of the way that the husband spread out his payments to her. Following an ore tenus hearing, the court entered an order on January 14, 1981 which directed that:

“1. The parties are hereby ordered to sell their home, which is located at 605 Armstrong Avenue, Bay Minette, Alabama, and apply the proceeds from said sale to pay off both mortgages, which exist against said home and divide the remainder, of said proceeds equally between the parties. However, Jack Edward Clark is hereby ordered to pay out of his share of said proceeds to Mattie Sharon McGuff the total sum of arrear-age in child support payments, which are due at the time of said sale.”

In response to this decree, the wife filed a motion under rule 60(b), Alabama Rules of Civil Procedure, seeking relief from the judgment on the ground that it had been procured through the husband’s fraud. The husband took no action whatsoever. On April 6,1981 the husband filed a petition to modify on the basis of changed circumstances, claiming that his former wife had remarried and that the couple was living in the home, which had never been sold in accordance with the court’s order of January 14, 1981. The wife responded by way of answer and counterclaim that the decree of January 14, 1981 which had ordered the sale of the home had been based on fraud and misrepresentation on the part of her former husband. She asked for an increase in alimony and child support and further requested that she be given continued possession of the homeplace. The court, on July 9, 1982, ordered that the couple’s former home be given to the wife and instructed the register to execute a deed to that effect. Subsequently, the trial court entered an amended order increasing child support payments. The husband has appealed to this court from that portion of the trial court’s July 9,1982 order which awarded the homeplace to his former wife.

We note that at the outset we are faced with a statement of the evidence under rule 10(d), Alabama Rules of Appellate Procedure, by appellant-husband to supplement evidence not contained in the record on appeal. The record before us contains only the various pleadings and motions by the parties and court orders. The testimony from the ore tenus hearings has not been transcribed. However, since the parties have failed to comply with the requirements of rule 10(d), A.R.A.P., we are prevented from considering any of those matters contained in their statement and not found in the record. Rule 10(d) provides that when no report of the evidence is available, the appellant may prepare a statement “from the best available means, including his recollection.” It must be served on appellee within forty-nine days of the filing of the notice of appeal. The appellee is then given seven days to make objections. Here, however, the parties failed to comply with that portion of rule 10(d) which requires that: '

“Thereupon the statement and any objections or proposed amendments shall be submitted to the trial court for settlement and approval and as settled and approved shall be filed with and included by the clerk of the trial court in the record on appeal.”

Since we find no inclusion in the record of the matters contained in the statement of the evidence, we must limit our inquiry to those matters which are actually contained therein.

In the instant appeal we are asked to decide whether the trial court’s orders of December 28, 1979 and January 14, 1981 in regard to the couple’s homeplace constituted a property settlement. The husband argues that the decrees in question are similar to those in Monroe v. Monroe, 356 So.2d 196 (Ala.Civ.App.1978), and Rayborn v. Rayborn, 409 So.2d 865 (Ala.Civ.App.1982), where we applied the rule that once a trial court has divided a couple’s property in connection with a divorce decree, its action is conclusive and cannot be modified after the expiration of thirty days on a showing of changed circumstances. In those two cases we dealt with divorce decrees which allowed the ex-wife to retain possession of the former family homeplace during the minority of the children or until she remarried. The husband points out to us that we indicated that those decrees expressed a “double contingency” and found them to be property settlements because they were partially based on the wife’s remarriage.

The wife, on the other hand, argues that Monroe, supra, and Rayborn, supra, do not apply in the instant case and that it is controlled by the supreme court’s decision of Tucker v. Tucker, 280 Ala. 608, 196 So.2d 724 (1967). She contends that the court there, when faced with a decree similar to the one in question here, found that the trial court had acted for the welfare and benefit of minor children and that a subsequent modification was proper because it was also entered for the benefit of minor children. It is her position that the trial court in the instant case did not abuse its discretion by rendering the decrees of January 14, 1981 and July 9, 1982 because they were modifications of an original decree which was issued to insure that the couple’s minor children had a home. ‘

It is conceded that the original divorce decree of December 28, 1979 in the instant case is somewhat similar to the divorce decree issued in Tucker, supra. In that case the supreme court held that a decree which awarded the ex-wife possession of the former family homeplace during the minority of her children or until her remarriage could be modified by a later decree when it was shown that changed conditions dictated that further steps should be taken to see that the needs of the couple’s minor children were met. There, the supreme court said:

“It is well settled in this jurisdiction that when a divorce decree embraces the subject of infant’s maintenance or custody, the chancery court, without reservation of power, may on change of circumstances at any time thereafter modify its decree to meet changed conditions. Hardy v. Hardy, 250 Ala. 297, 34 So.2d 212.”

Our analysis of the December 28, 1979 decree in the case at bar leads us to the conclusion that it was issued to insure that the Clarks’ minor children were to be provided with a home. Unlike the decisions in Tucker, supra, Monroe, supra, and Rayborn, supra, this decree contained no double contingency on the basis of the ex-wife’s remarriage. The December 28,1979 decree in the instant case clearly expressed the intention that the wife was to retain possession of the homeplace during the minority of the children. Nothing in the decree made her continued possession of the property conditional on her remaining unmarried. For these reasons, we agree with the wife’s position that the decree of December 28, 1979 was issued to protect the couple’s two minor children, and we further agree that the trial court retained the power to modify this decree for the benefit of the children.

The wife further contends that the January 14, 1981 and July 9, 1982 decrees were also proper because they modified a decree which was issued to protect the couple’s minor children and because they were also issued to insure that adequate child support would continue to be provided. The husband argues, however, that under our decisions of Rayborn, supra, and Monroe, supra, the January 14, 1981 decree was itself a property settlement. In Tucker, supra, a subsequent modification was upheld because the original decree and a later order modifying it were both rendered for the benefit of minor children. Indeed, it is this factor which distinguishes Tucker from the later decisions of Rayborn and Monroe. In Rayborn and Monroe later attempts to modify were held to be invalid because the trial court was improperly involved in attempting to modify what had originally been a division of the couple’s marital property. We have determined that the December 28, 1979 decree disposing of the parties’ property was for the benefit of their children. Consequently, this first decree was modifiable.

The January 14, 1981 decree directs that the property in question be sold and the proceeds be divided equally between the parties with the arrearage in child -support to be paid out of the father’s share of the property sale proceeds. Although we do not have the benefit of the evidence adduced at the hearing leading to the January 14, 1981 decree, we do have the pleadings before us and they suggest that the father was not making his support payments on time and the mortgage payments were thus in arrears. The original decree had directed the mother to make the mortgage payments out of the support payments required to be made by the father.

Based on the pleadings and the presumption that the trial court’s decree is supported by the evidence heard by it when the evidence is not set out in the record on appeal, we conclude that the January 14, 1981 decree directing that the property be sold so that the mortgages could be paid and that the father could pay child support arrearages out of his share of the sale proceeds was for the benefit of the children— and was subject to being modified at a future date.

The July 9, 1982 order as amended transferring the father’s interest to the mother was, according to the pleadings, another effort on the part of the court to protect the welfare and best interests of the parties’ minor children by providing them a place to live. This order must be presumed to be another one in a series of orders relating to the welfare of the children and was thus a proper modification of prior orders made for the benefit of the children.

The judgment of the trial court is affirmed.

AFFIRMED.

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


author: HOLMES, Judge.

text:
    Mildred G. ADDERHOLD v. John William ADDERHOLD.
    Civ. 3355.
    Court of Civil Appeals of Alabama.
    Feb. 2, 1983.
    Sidney J. Hardy of Gaines, Cleckler & Goodrich, Talladega, for appellant.
    William W. Lawrence of Love, Love & Lawrence, Talladega, for appellee.
   HOLMES, Judge.

This is a divorce case.

The wife appeals from an order of the Talladega Circuit Court which divided all the property, including a business, equally between the husband and wife. We reverse and remand.

The husband and wife married in 1949, and separated in 1981. They have one son.

For approximately the last ten years, the husband, wife and son have been involved in the operation of Adderhold Bait and Tackle Company, a fishing tackle and bait business.

In August, 1981, the wife filed for a divorce. In her complaint, she averred that she and her son were partners in the bait and tackle business.

In May, 1982, following a hearing, a judgment of divorce was entered. In the order, the trial court found that:

“[The son] has been involved in operating their bait supply operation and they have been very generous toward him. There is insufficient evidence to show his interest as a business partner.... The court believes that all the other property should be divided equally between the Plaintiff [wife] and Defendant [husband] and the Court has made every effort to do so.”

Although the primary issue on appeal is whether the trial judge abused his discretion in the property settlement, we must first address a threshold matter raised by the husband. He contends the wife may not appeal because, due to certain procedural actions, she is appealing, in effect, from a consent judgment.

The record before this court and the briefs reveal the following sequence of events regarding the issue at hand.

The wife requested a new trial. However, no written motion was filed nor do the grounds for the motion appear in the record. The trial judge granted a new trial. Thereafter, the wife requested that the action granting a new trial be set aside and the original judgment be reinstated. The trial court did “reinstate” the judgment.

As indicated, the husband contends the wife cannot now, in view of the above, appeal. The husband through able counsel relies on Sayre v. Dickerson, 278 Ala. 477, 179 So.2d 57 (1965); McKinley v. McKinley, 277 Ala. 471, 172 So.2d 35 (1965); M.L. Blumenfeld & Co. v. Hamrick, 18 Ala.App. 317, 91 So. 914 (1921). . Each case in essence relies on the principle of law that a party can take nothing by appeal from a judgment, order or decree rendered at his request.

However, each of the cited cases is distinguishable from the instant appeal in that such cases envision a consent judgment, order or decree rendered at the request of the party. McKinley v. McKinley, supra. Here, the underlying judgment is not a consent judgment but in fact was “hotly” litigated.

While the actions as outlined above are rather unusual and the reasons behind the actions are not entirely clear, this court is not prepared in this case to hold the wife is precluded from appealing from the underlying judgment.

We particularly note that there is nothing in the record to indicate any action that appears to have misled the learned trial judge. Furthermore, in a nonjury trial such as we have in the instant case, it is not a prerequisite that a new trial motion be filed prior to appeal. Securitronics of America v. Bruno’s, 414 So.2d 950 (Ala.1982).

We additionally note it is the policy of this court to reach the merits of appeal whenever possible. We take that course in this instance.

The dispositive issue on appeal is whether the trial court abused its discretion in finding, in effect, that the husband was a partner, while finding specifically the son was not, and thereby dividing the property of the business between the husband and wife to the exclusion of a possible third partner, the son.

The wife contends the trial court erred in finding the husband was a partner in the business. Although the divorce decree did not specifically find the husband was a partner, in this instance, the equal division of property including the assets of the business imply such a finding.

During the trial, the wife testified the husband was not a partner at the time of their separation because he abandoned the partnership. The husband testified he was a partner, and had not abandoned the business.

There was no written agreement concerning a partnership between either of the parties, or their son. Where there is no written agreement between the parties, and the question is whether as between the two a partnership existed, the question is one of part law and part fact. Bailey v. Bailey, 345 So.2d 304 (Ala.Civ.App.1977). Where there is a conflict of evidence, the ore tenus rule applies in partnership cases as in all others. Bailey v. Bailey, supra. On appeal, the circuit court’s judgment can only be disturbed if it is so unsupported by the evidence as to be clearly unjust and palpably wrong. Coffelt v. Coffelt, 390 So.2d 652 (Ala.Civ.App.1980).

In the instant case, the wife testified the husband was a partner at least in the beginning; the lease for the business’s store is signed by the husband; testimony by witnesses indicated the husband continued to do mechanical work on the trucks of the business well past the time the wife alleges he abandoned the business; and the husband was, prior to the separation, allowed to withdraw money from the business’s bank account. Such factors are indicia of a partnership relationship in the instant case. We cannot say the trial court erred in impliedly finding the husband was a partner in the business.

However, the question of whether the son was a partner in the business is a different matter, requiring a closer examination of the laws of partnership.

Alabama has adopted the Uniform Partnership Act, codified at Ala.Code § 10-8-1 to § 10-8-103 (1975). Under the Alabama Partnership Act, a partnership is defined as an “association of two or more persons to carry on as co-owners a business for profit.” § 10-8-2(7). Actual co-ownership of property is not generally held a condition of a partnership, 59 AmJur., Partnerships § 45 (1971), but rather a community of interest which includes the right to manage and control the business. 59 Am.Jur., Partnerships §§ 42-44 (1971).

The Alabama Partnership Act in § 10-8-20 provides guidance for determination of whether a partnership exists. Among the criteria tested in that section is the provision that “receipt by a person of a share of the profits of a business is prima facie evidence that he is a partner in the business....” Ala.Code § 10-8-20(4) (1975). However, this presumption does not arise where such a share is received in payment of a debt, as wages, rent, as an annuity to a widow or representative of a deceased partner, as interest or payment on a loan, or as consideration for the sale of good will of a business. Ala.Code § 10-8-20(4)(a)-(e) (1975).

Both testimony and documented evidence were presented at trial that the son received shares in the profits. No one disputed this at the trial; nor did anyone claim he received the shares of the profit as wages, repayment of a loan, or any of the other listed exceptions. This presumption of a partnership relation between the son and his mother was not rebutted at trial.

Another critical factor in determining whether a partnership relationship exists is the existence of a legally binding obligation to share in the losses of the business. Ala. Code § 10-8-52 (1975); Bailey v. Bailey, supra; 59 Am.Jur., Partnerships § 39 (1971). The son testified he shared the losses, and no one disputed his testimony. Furthermore, documented evidence was presented that the son is legally bound to repay certain loans used to purchase assets of the business.

Our supreme court has held that “a partnership arises only from an express or implied agreement among the parties and is never established by implication or operation of law .... The surrounding circumstances as well as any express agreement between the parties may evidence the intention of the parties necessary to establish such a relationship.” Waters v. Union Bank of Repton, 370 So.2d 957 (Ala.1979). In the instant case, both the mother and the son testified that they intended to and did enter a partnership agreement as early as 1973. No one disputed this testimony. Furthermore, there was testimony from members of the community who dealt with the business that the son appeared to be a partner, and that he exercised management duties. This testimony was also undisputed.

It is especially difficult to determine if a partnership relationship exists where, as here, there is no -written agreement.

“The courts, both at common law and under the Uniform Act, have recognized that no one fact or circumstance can be taken as a conclusive test, nor is it possible to state any number of facts that would in all cases be decisive of the existence of a partnership relation. In the last analysis there is no arbitrary test for determining the existence of a partnership, and each case must be decided according to its own peculiar facts.”

59 Am.Jur., Partnerships § 39 (1971).

In the instant case, the evidence presented at trial established that the mother and son had the intent to create a partnership; that they considered themselves partners; that they shared both the profits and the losses; and that they shared in the management of the business. See Ala.Code § 10-8-43 (1975).

Certainly, the “surrounding circumstances” indicate a partnership. Waters v. Union Bank of Repton, supra. The mother and son transacted business as a partnership, and testimony indicated they were perceived by those dealing with them as partners. The son signed bank loans with his name plus the designation of D/B/A Adderholt Bail and Tackle Company. Tax returns listing the mother and son as partners were placed in evidence.

Hence, the indicia of a partnership— intent and agreement to be partners, sharing the profits and losses, sharing management and community of interest, surrounding circumstances — have been established in the instant case. We note also that a careful review of the record indicates no evidence or testimony disputing the evidence presented which indicated a partnership existed between the mother and son.

Where evidence has been taken ore tenus, a presumption of correctness attends the trial court’s conclusion on issues of fact, and the reviewing court will not disturb the trial court’s conclusions unless palpably wrong, without supporting evidence, or manifestly unjust. E.g., Farm Country Homes, Inc. v. Rigsby, 404 So.2d 573 (Ala.1981); 2A Ala.Digest, Appeal & Error § 931(1). However, the ore tenus presumption of correctness applies only to resolution of conflicts in evidentiary facts, and has no application where facts are undisputed, and it is solely for the appellate court to determine whether the trial court misapplied the law to undisputed facts. Home Indem. Co. v. Reed Equipment Co., Inc., 381 So.2d 45 (Ala.1980). As previously noted, the question of whether a partnership exists is a question of part law and part fact. Bailey v. Bailey, supra.

Hence, where as here, we have no evidence in the record which supports a finding that the son was not a partner, where the evidence presented that he was a partner is undisputed, and the evidence presented as to his status in the business indicates he is a partner as a matter of law, we must hold the trial court erred in its determination that the son was not a partner. This is especially true in view of the aforementioned statute regarding the prima facie presumption of partnership. Clearly, the trial court could not distribute the partnership property between the husband and wife to the exclusion of the third partner, the son, who was not a party to the suit. Therefore, the trial court erred as a matter of law, and we reverse and remand for proceedings consistent with this opinion.

We note that in view of the above the son would of necessity be required to be a party in any proceeding regarding any disposition of partnership assets.

Other errors urged by the appellant this court finds without merit in that the learned trial judge properly exercised his discretion.

REVERSED AND REMANDED.

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


text:
    Billy Franklin JOHNSON v. Nellie Jean JOHNSON.
    Civ. 3406.
    Court of Civil Appeals of Alabama.
    Feb. 2, 1983.

      R. Kent Henslee of Henslee & Bradley, Gadsden, for appellant.
    H. Keith Pitts of Hawkins & Pitts, Gadsden, for appellee.
   WRIGHT, Presiding Judge.

Husband appeals from a judgment of divorce. The only issue presented is a charge of abuse of discretion in the award of alimony to the wife.

The testimony was taken orally before the court upon the complaint of the husband. The divorce was granted on the ground of incompatibility. There was one child, age seventeen, remaining at home. The marriage had endured for nearly twenty-five years. There were charges and countercharges as to the respective fault of the parties in causing the irreconcilable differences between the parties. The husband was employed, earning approximately $18,-000 per year. The wife was employed part time, earning approximately $9,000 to $10,-000 per year. Her future employment was uncertain.

The wife was permitted to remain in the family home, with custody of the minor child until the child reached majority or married. In either event, the house, of the estimated value of some $78,000, is to be sold. After payment of the mortgage and other indebtedness, the remaining money from the sale is to be equally divided. The husband was directed to make the mortgage payments and pay $200 per month as child support. Other personal property was disposed of in the judgment. The wife was granted alimony in the amount of $200 per month, payment of which was deferred for a year. Thereafter payments of both child support and alimony were to be made until the child reached majority. When that event occurred, alimony was to be paid at the rate of $400 per month for one year and then revert to $200 per month.

The husband complains of both the allowance of alimony and the amount ordered paid. It is the law of this state that the allowance of alimony to either party in a judgment of divorce is within the discretion of the court. § 30-2-51, Code of Alabama as amended. The amount of such allowance is also a matter of discretion. Caylor v. Caylor, 344 So.2d 173 (Ala.Civ.App.1977). The exercise of that discretion is reviewed with a presumption of correct ness and will be reversed only if so unsupported by the evidence as to be deemed arbitrary and unjust. Miller v. Miller, 340 So.2d 823 (Ala.Civ.App.1976). We have carefully reviewed the evidence in this case — in particular, the colloquy between counsel and the court at the time of reconsideration and amendment of the original judgment. It is evident therefrom that the court considered fully the evidence and the equities of the case. We cannot find a palpable abuse of judicial discretion in the judgment rendered. We therefore must affirm.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


text:
    Beverly A. SPRADLIN v. Louis E. SPRADLIN.
    Civ. 3435.
    Court of Civil Appeals of Alabama.
    Feb. 2, 1983.
    James R. Clifton of Stone, Patton & Kierce, Bessemer, for appellant.
    E.L. Brobston, Bessemer, for appellee.
   EDWARD N. SCRUGGS, Retired Circuit Judge.

In this divorce case, the marriage was dissolved because of the husband’s adultery.

Upon the wife’s appeal, she argues that the division of property was inequitable to her and that the award of periodic alimony was inadequate. Each of such matters falls within the trial court’s judicial discretion, whose decision thereon will not be disturbed upon appeal except where such discretion was palpably abused. Also, since the case was orally tried before the circuit court, it is presumed that the final judgment was factually correct if it was supported by credible evidence. Dye v. Dye, 406 So.2d 420 (Ala.Civ.App.1981); Chernau v. Chernau, 396 So.2d 1061 (Ala.Civ.App.1981); Coffelt v. Coffelt, 390 So.2d 652 (Ala.Civ.App.1980).

We cannot visualize how any benefit would inure to the parties, to their counsel, or to precedent if we detailed or summarized the evidence herein. We have carefully studied the excellent briefs of counsel and the entire record has been read and reviewed. There was evidence which was supportive of the decision of the trial court. The circuit court was not palpably wrong and did not abuse its discretion. Accordingly, this court cannot say that the trial court was in error concerning the property division or the alimony award.

After both of the parties had testified and just before resting as to the presentation of the evidence, the wife’s attorney announced that he was calling the husband’s paramour as a witness. Counsel for the husband stated that he had talked to the proposed witness, who reserved her right not to testify on the ground of self-incrimination. The husband had testified that he had left his home in September 1980, and immediately moved into a house with his lady friend, where they had resided together since that time, and that he had sired a son by her, the son being born in February 1982. The trial court stated that the witness had a privilege not to testify about her relationship with the husband and that a number of items which the husband had testified about were not in dispute. Upon an inquiry from the trial court as to whether the wife’s attorney could make a showing regarding disputed matters about which the witness would testify, counsel for the wife concluded, “[I] do not know whether or not her testimony would add anything to what has already been brought before the Court this morning.” The trial court observed that the witness’ relationship with the husband was undisputed in view of the husband’s own testimony, that she had a right to claim her fifth amendment privilege against testifying as to that relationship and as to their living arrangements, and that the contributions thereto by them were undisputed and un-controverted. The court determined that the witness would add nothing to the proceeding and sustained the objection. The adverse ruling constitutes one of the wife’s present issues.

As to those matters protected by the fifth amendment, the husband’s paramour had the right to invoke her privilege against self-incrimination. Vail v. Vail, 360 So.2d 992 (Ala.1978). Here, the wife did not make a specific offer of what she expected to prove by any unprivileged answer of the witness so as to place it in the record for appellate purposes under Rule 43(c), A.R.Civ.P.; indeed, it was indicated to the trial court, in substance and effect, that her testimony would be merely cumulative. The husband’s evidence regarding himself and his paramour was uncontroverted on material matters and it largely consisted of his in-court admissions, as a witness, which were contrary to his own interest. Counsel was unable to assure the court that the proposed witness would testify as to any contested fact which had not already been admitted by the husband. Under those circumstances, we not only find no error in sustaining the objection, but we must hold that, if there was error, it was harmless. Rule 45, A.R.A.P., Rule 61, A.R.Civ.P.; Chambers v. Culver, 289 Ala. 724, 272 So.2d 236 (1973); Pigford v. Billingsley, 264 Ala. 29, 84 So.2d 664 (1956). In short, when cumulative evidence is offered as to an un-controverted and admitted fact, the trial court does not err in sustaining an objection to its introduction.

We affirm.

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

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

AFFIRMED.

All the Judges concur.


author: LEIGH M. CLARK, Retired Circuit Judge.

text:
    Kenneth Dale DAVENPORT, alias v. STATE.
    7 Div. 805.
    Court of Criminal Appeals of Alabama.
    June 23, 1981.
    Rehearing Denied Aug. 4, 1981.

      Kermit Mac Downs and Donald W. Stewart, Gadsden, for appellant.
    Charles A. Graddick, Atty. Gen., and J. Michael Horsley, Asst. Atty. Gen., for ap-pellee.
   LEIGH M. CLARK, Retired Circuit Judge.

A jury found defendant (appellant) guilty of rape in the first degree on a trial on an indictment that charged that he, “a male, did engage in sexual intercourse with Theresa Dianne Bland, a female, by forcible compulsion.” The court fixed his punishment at imprisonment for twenty-five years and sentenced him accordingly.

Code of Alabama 1975, § 13A-6-61(a) provides:

“A male commits the crime of rape in the first degree if;
“(1) He engages in sexual intercourse with a female by forcible compulsion.

According to § 13A-6-61(b), rape in the first degree is a Class A felony, for which the punishment prescribed is “for life or not more than 99 years or less than 10 years.” § 13A-5-6(a)(l).

According to the undisputed evidence, the incident that gave rise to the indictment occurred in Gadsden City Jail on the evening of August 28, 1980, and consisted of sexual intercourse between defendant, a trusty in the jail, and the victim, an inmate 18 years of age, who had been confined in the early evening of August 28. According to the evidence for the State, including the testimony of the alleged victim, the intercourse was procured by the defendant by forcible compulsion. The defendant testified that it was consensual. The victim, a resident of Petersburg, West Virginia, a married woman who had been separated from her husband two years or more, had been living with a man at a motel in Gadsden, and on the late afternoon or early evening of August 28 she had become intoxicated and boisterous, had a fight with her boyfriend, and was brought to the jail on a charge of “public intoxication.” She was at first put in a cell with “two other girls” and soon transferred to an adjoining cell in which the incident occurred.

About the time the alleged victim was transferred from one cell to another, she asked and was given permission to make a phone call, which took her away from the cells. Upon her inability to complete the call, a trusty, “a black guy,” was handed the key and directed to take her back to her cell. She testified:

“Q. All right. And did he take you back to your cell?
“A. Yeah. And—
“Q. What did he do at that time?
“A. He unlocked the cell door and let me in and shut it, but he did not lock it. “Q. Did you see at that time that he did not lock it?
“A. No, I didn’t know. At that time I thought he had locked it, but I found out—
“Q. Then what happened?
“A. Well, I went over and lay down on the bunk and a couple minutes later I looked up and the first black guy was standing at the door and the white guy [the defendant] was standing at the door and the white guy was in there coming towards me.”

The witness then proceeded to tell, in language that need not be repeated, what defendant said and did, which constitutes, we think, substantial, but not conclusive, evidence of defendant’s guilt of the crime charged. There was some corroboration of the victim’s testimony by the testimony of the two “girls” in the adjoining cell, to whom some of the noise and conversation in the victim’s cell was audible.

Although the evidence above narrated is sufficient to present a jury issue as to the guilt of the defendant of rape in the first degree, the evidence as to what occurred that night between defendant and the victim did not cease with that which has been summarized. The victim’s testimony continued, and she said that about forty minutes after what had previously occurred, the defendant “came back in and had intercourse with me again” and promptly thereafter there was a third act of intercourse between the two at which, or during which, the trusty who had closed the door of her cell and another trusty joined the defendant. Her testimony continued:

“Q. Who were the other people who were present?
“A. Two black guys.
“Q. All right. And this is all at the same occasion, same time?
“A. Uh-huh.
“Q. What was the first black man doing at that time?
“MR. DOWNS: We object to what anybody else was doing.
“MR. WILSON: Judge, this is part of the res gestae and this Defendant was there physically present.
“THE COURT: At that time. I’ll allow this testimony in.
“MR. DOWNS: We except.”

During further brief interrogation, the witness testified that thereafter three penetrations of her occurred, one by the defendant as he had done at least twice before, another by one of the other persons contrary to the order of nature, and the third by conduct, differing in locus from the deviation of the second, also contrary to the order of nature.

The two women in the adjoining cell testified also that a short time prior to the defendant’s admission to the jail, the defendant and the other two trusties, came to the cell of the two women with some Vodka and asked to “swap out” the Vodka for sex. The trusties left the cell after being ordered to do so by the two inmates.

About 6:00 A.M. the next day, the victim was admitted to the emergency room of the Baptist Memorial Hospital, where she was examined by Dr. Allison A. Louber, whose testimony, on the call of the State, shows a thorough examination and detailed findings that are substantially conclusive as to then recent sexual intercourse, that is consistent with, but not conclusive as to, the alleged rape by the defendant and deviate sexual intercourse by the other two trusties.

Two of appellant’s insistences on a reversal raise the question whether the State, by its repeated references to the race or color of the other two trusties, in contrast with that of the white defendant and the white victim, appealed to racial prejudice of the white jury that tried the case, to the injury of the defendant.

Long before the words and deeds of the last few decades that have tended to arouse animosity between races, the appellate courts of this state made it crystal clear that appeals to race prejudice would not be tolerated in the courts of Alabama. In most of the cases reported, the appeals to racial prejudice were directed toward a black defendant in a criminal case. However, the poisoned arrow has also been detected and condemned when directed toward a black witness. In Tannehill v. State, 159 Ala. 51, 52, 48 So. 662 (1909), in which the defendant was black and was convicted of murder in the second degree, the remarks held intolerable were:

“The only defense to these confessions of the defendant, with the corroborating facts shown by Mr. McBride and Mr. Martin, is the alibi set up by a lot of negro witnesses. Why, gentlemen, if you acquit this man on such an alibi as this, you can never expect to convict another negro of crime in this country. You know the negro race — how they stick up to each other when accused of crime, and that they will always get up an alibi, prove it by perjured testimony of their own color, and get their accused companion clear if they can.”

In James v. State, 170 Ala. 72, 54 So. 494 (1911), the Supreme Court, quoting from Tannehill, supra, reversed a conviction of “malicious injury to animals” for the single reason that the prosecuting attorney had argued to the jury, that “if the negro was taken out of court there would not be much left.”

In Simmons v. State, 14 Ala.App. 103, 71 So. 979 (1916), there was a reversal of appellant’s conviction of violating the prohibition law on the single ground that the trial court had not sustained defendant’s objection to the statement of the solicitor, “You must deal with a negro in the light of the fact he is a negro, and applying your experience and common sense.” The Court of Appeals said in a one-paragraph opinion:

“... The fact that the defendant was of the negro race did not deprive him of the equal protection of the law, or necessarily discredit his testimony, and should not have been used in argument as a means of arraying the prejudices of the jury against him.”

There has been no variance in subsequent cases from the clearly defined principle stated above. This is not to say that one, whether a party in litigation, a witness or any other person, could not in the trial of a case ever be referred to by the judge, a party, counsel, a witness or any other person, for the purpose of identification, by language generally recognized as inoffensive, even though it constitutes a particularization of his race or color. The distinction between the injustice of condoning the one and the justice of permitting the other is found in Peterson v. State, 227 Ala. 361, 367, 150 So. 156 (1933), as follows:

“The question of prime importance was one of identification of the defendant. The witness Nell Williams, present during the entire period, pointed her accusing finger at the defendant, and we see no objection to permitting her to say, in answer to the inquiry as to whether or not she had any doubt in her mind as to the matter of identification, T know that he is the negro.’ It was the sister of the witness Nell Williams for whose murder the defendant was being tried, and she points out the defendant as the guilty party. Effort was made to show she was mistaken in her identification. There was therefore nothing improper in permitting the state on redirect examination to show that the witness had looked at many witnesses. Cotton v. State, 87 Ala. 75, 6 So. 396. The commission of the crime by a negro man was not a matter of dispute, and the issue was, as previously stated, one of identification.”

In recognition of the principle that reference to the race or color of another in a judicial proceeding is not necessarily impermissible and that it is appropriate when material to an issue of identification, appel-lee states in its brief: “The record appears clear that the designations white and black were used for distinguishing between the defendant and his accomplices.” We have little doubt that as to several such designations the conclusion of appellee is correct. Furthermore, we are not persuaded that counsel for the State intentionally appealed to racial prejudice by referring to the two other men involved as “black men” on numerous occasions. Nevertheless, many of such references could and should have been avoided and require further consideration.

There would have been much fewer occasions for any reference to the other two persons as “black” if the court had not permitted the State to introduce evidence as to what occurred in the cell in which the alleged victim was confined that shed no light on the issue whether the previous act of intercourse between her and the defendant was by forcible compulsion. The overruling of defendant’s objection opened a floodgate of evidence of at least one other, and perhaps two other, acts of intercourse between defendant and the alleged victim, of evidence of deviate sexual intercourse by forcible compulsion by each of the other two trusties, with accompanying evidence to the effect that the defendant aided or abetted the two trusties in the commission of such crimes.

The court was in error in overruling defendant’s objection to the question to the victim as shown by the portion of the transcript quoted above, in which it is to be noted that counsel for the State interposed between the objection and the ruling of the court, “Judge, this is part of the res gestae and this Defendant was there physically present.” The interposed statement came near facially being good reason for overruling the objection, but not so upon careful consideration of all of the pertinent facts.

The often cited principle on the subject as stated by Judge McElroy is as follows:

“Evidence of the accused’s commission of another crime is admissible if such other crime is inseparably connected with or is a part of the res gestae of the now-charged crime. This rule is often expressed in terms of the other crime and the now-charged crime being parts of one continuous transaction or one continuous criminal occurrence.” Gamble, McElroy’s Alabama Evidence, § 69.01(3) (1977)

In none of the cases citing, and in none of the cases cited by, said § 69.01(3), do we find any inconsistency in what we now hold. However, among such cases, is Taylor v. State, Ala.Cr.App., 352 So.2d 1154 (1977), in which there is considerable resemblance in some of the facts to the facts in the instant case. In Taylor, defendant was convicted of rape. The evidence showed that he raped the alleged victim three times within a few hours. The evidence, however, to which the objection was made was not the testimony of the victim, but was a part of a written statement of defendant pertaining to his firing a gun at or about the time and place of the third rape. Also, in Taylor, there was no evidence or contention that defendant was aiding or abetting another, or that some other person was aiding and abetting him, in committing the crime. In Taylor, the defendant did not testify. In the instant case, as previously noted, the defendant testified and narrowed the issue to whether there was forcible compulsion as to the admitted first act of intercourse. By the State’s selection of it as the first incident upon which to base its charge of rape in the first degree, it elected to treat it as the case to be tried.

The transcript shows that before any evidence was presented and while counsel for the State was making his opening statement to the jury as to what he expected the evidence to show, the following occurred:

“MR. WILSON: Now, we also intend to prove to you that at a later time he got up and left and testimony will tell you that at that time there was a black man waiting his turn, after the first man left. After this Defendant left there was a black man—
“MR. DOWNS: Your Honor, I object to any further statement—
“THE COURT: Sustain the objection to any other offenses that were committed by any other persons.”

Whether testimony of the victim as to the combined trespass on her person of the defendant and the two other trusties comes within the res gestae rule or was so inseparably connected with the preceding conduct of defendant must be examined with particular reference to the place, the time and the nature of the crime or crimes involved. The place was the same as to both, but there was a difference of forty minutes between consummation of the first act and the commencement of the concerted conduct relative to the victim by the defendant and the two other trusties. We fail to see that the conduct that the victim said occurred thereafter can logically be said to have been part of “the thing done” theretofore. In deciding whether a statement made by the alleged victim of a rape by the defendant was admissible in evidence on the basis that it was a part of the res gestae, it was held in Harvey v. State, 41 Ala.App. 526, 138 So.2d 270, 271 (1962):

“The Attorney General, while admitting the impropriety of the use of the conclu-sionary expression ‘You raped me,’ would justify its use here as an instance of early complaint which partook of the res ges-tae, and, therefore, need not have been confined to a bare statement of making complaint.
“In view of the considerable distance from the site of the act of sexual intercourse to the sister’s house, we do not consider that the accusation was contemporaneous with the act itself. See the discussion as to res gestae by Mayfield, J., in Bessierre v. Alabama City G. & A.R.R. Co., 179 Ala. 317, 60 So. 82.”

In the same case, it was held that the evidence as to a fight between the defendant and another man, shortly after the quoted statement by the prosecutrix, was not admissible. As to such evidence, it is stated:

“... The refusal of the court to sustain the objection to the question and to exclude this evidence was error which was prejudicial to Harvey, since it violated the rule against admitting evidence of other offenses or of matter from which complicity in another crime might be inferred. Mason v. State, 259 Ala. 438, 66 So.2d 557, 42 A.L.R.2d 847.”

In our opinion, the admission of evidence in the testimony of the victim as to what occurred while she, the defendant and the other two trusties were in the cell together, cannot be justified on the principle that it was a part of the res gestae of the crime charged.

As to whether the conduct of the three contemporaneously directed against the victim was “inseparably connected with” the affair between defendant and the victim occurring forty minutes before, and after defendant had been out of the cell for that forty minutes, our answer is in the negative. We find no difficulty in separating the uncomplicated crime the witness said the defendant alone committed from the imbroglio as to which a major part of the entire evidence was related.

During the cross-examination of the defendant as a witness for himself, counsel for the State repeatedly brought from him a denial of any substantial knowledge of what the other two trusties did to the victim after the defendant left her cell. As to a large part of such cross-examination, there was no objection by defendant. There is room for a reasonable contention that defendant did not preserve on the trial the reviewability of the admission in evidence of part of the testimony as to what occurred during the three on one episode, but we think that there was sufficient objection, as previously indicated and as shown hereafter, for us to determine whether the court committed reversible error in permitting the introduction of such evidence and in its related rulings.

During the cross-examination of the defendant, the following occurred:

“MR. WILSON: I’m asking cross-examination questions, if it please the Court.
“THE DEFENDANT: What is your question?
“MR. WILSON: I ask you, sir, about the black man entering the cell-—
“MR. DOWNS: Your Honor, we object to that question.
“THE COURT: Overruled.
“MR. DOWNS: We except.
“MR. WILSON: It’s your testimony to this jury that as you were leaving her cell with these kind and gentle feelings, that you turned her over to a black man also for the act of sexual intercourse; is that correct?
“MR. DOWNS: We object to the term ‘turned over.’
“THE COURT: Overruled.
“MR. DOWNS: We except.”

On further cross-examination, the following occurred:

“Q. And the fact that the evidence and the doctor has pointed out to this jury that there was a rectal tear of about a quarter of an inch—
“MR. STEWART: Your Honor, we object to the testimony about that. We are talking about an alleged rape here.
“THE COURT: Let him finish his question and make your objection and I’ll rule.
“Q. What I’m asking you, sir, is if you know at any time of anyone having anal intercourse with this woman?
“MR. STEWART: Your Honor, we object to this. We are talking about an alleged rape.
“THE COURT: Overruled.
“MR. DOWNS: Your Honor, he testified he was not in the cell at the time the two other black men were there.
“THE COURT: Gentlemen, I don’t want any more speeches. Let him answer the question.
“MR. DOWNS: That’s the basis of our objection, Your Honor.
“Q. I’ll ask you, sir, if you’re aware of that?
“A. Could you repeat that, please?
“Q. The anal intercourse.
“A. I have no idea. I know nothing about that.”

During the argument of counsel to the jury, counsel for the State continued, as he did during the presentation of the evidence, to impress upon the jury the incident or incidents that occurred in the cell while, according to the victim, the three trusties were in the cell with the victim. Before the argument commenced, counsel for defendant attempted to obtain a ruling that would have precluded such argument, as shown by the following colloquy in camera:

“MR. DOWNS: Your Honor, at this time we would like to make it known to the Court we’d like the Court to instruct the prosecution that during their closing statement that they not make any reference to the sodomy or other acts that this Defendant is not charged with.
“THE COURT: Only the things that he is charged with, that’s correct.
“MR. DOWNS: Or any of the acts of any of the other Defendants.
“MR. WILSON: That’s all in evidence.
“THE COURT: He can argue any inferences from the evidence but not that your Defendant is not charged with anything except rape.”

Thereupon, in the first argument to the jury of counsel for the State, the following occurred:

“MR. MARTIN: They had been thinking about it. And that they did, in fact, carry out their plan. Now, why else would Mr. Davenport have been hiding in there m her cell? Why else would Mr. Robinson when he come back pretended—
“MR. DOWNS: I object to any testimony about anybody that’s not on trial in this case. There is no conspiracy charged. We object to any argument about that.
“THE COURT: Overruled.
“MR. DOWNS: We except.
“MR. MARTIN: Why else would Mr. Robinson when he—
“MR. DOWNS: We object to Mr. Robinson—
“THE COURT: He may argue any inference from the evidence.
“MR. DOWNS: Mr. Robinson is not charged in this case before this Court.
“THE COURT: He’s not saying he was charged either, Mr. Downs. Overrule your objection.
“MR. DOWNS: We except, Your Honor.
“MR. MARTIN: Well, they knew they had all the time in the world. Knew they had all the time in the world. Weren’t worried about that jailer coming around and checking—
“MR. DOWNS: We renew our objection to talking about they.
“MR. MARTIN: Your Honor, this is all in evidence from the witness stand.
“THE COURT: Overrule your objection. “MR. DOWNS: We except.”

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

“MR. WILSON: There was a tear in the rectum area. She didn’t get that in any altercation with her boyfriend.
“MR. STEWART: Object to that. There is no testimony at all that this Defendant had anything to do with that.
“MR. WILSON: That was all in the same incident and that’s the evidence before the Court.
“MR. DOWNS: We object again.
“THE COURT: I shall instruct the jury.
“MR. DOWNS: We object to the jury hearing the argument.
“THE COURT: You may proceed.
“MR. WILSON: And then the Defendant says to you, ‘No. They are lying about that. These two girls and Theresa are lying about that.’ Then I asked him about the second act. I said, ‘Now, in the second act — ’ He said, ‘What second act?’
“MR. DOWNS: Your Honor, we object. We made a motion on this particular issue already.
“THE COURT: Overruled.
“MR. DOWNS: We renew our objection. We except.”

Although we are not absolutely satisfied that defendant did all that he could and should to have prevented the evidence and argument of counsel as to what occurred in the victim’s cell when, as she testified, the defendant and the two other trusties as a team were ravishing her, it had no relevance whatever to whether defendant had been guilty of rape in his admitted act of intercourse. We have no doubt that such evidence was not germane to the issue in the case, that it should not have been admitted in evidence, and that the trial court was in error in its rulings on the subject. By such evidence and argument of counsel, the case was transformed from one presenting a very simple issue of whether defendant’s intercourse with the victim was by forcible compulsion to one in which it was difficult for a jury to arrive at a verdict on the issue free from prejudice, passion, and the contaminating influence of the subsequent events. Defendant was an easy prey for such influence because of his admitted immorality accentuated by his breach of trust as a trusty. Even so, as greatly reprehensible as his admitted conduct was, he was entitled to a verdict of not guilty of the crime charged in the indictment, if there was no forcible compulsion by him.

Although we find no error in the court’s sustaining the State’s objection to statements in writing by the other two trusties as to what occurred, who probably for obvious reason did not testify on the trial, such statements are in the transcript before us and tend to emphasize the extent of the injury to the defendant in the admission of the evidence and in the argument of counsel relative to the conduct of the other two trusties. Each statement was to the effect that the one making the statement had consensual sexual relation with the victim on the night of the alleged crime, separate and apart from each other, and separate and apart from intercourse between defendant and the victim.

The only other issue presented by appellant is as to the action of one of the jurors in obtaining a definition of rape from a dictionary, while the jury was not sequestered. As such incident is not likely to occur on another trial and as a determination thereof would be unnecessary in view of the necessity for a reversal for the reasons already stated, we will not discuss it further at this time, other than to say that it is understandable why, in this particular case, the juror would feel the need for a dictionary to inform him as to the meaning of rape.

For the errors indicated, the judgment of the trial court should be reversed and the cause remanded.

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

REVERSED AND REMANDED.

All the Judges concur.

      . Brown v. State, 33 Ala.App. 97, 31 So.2d 670, 675 (1946).