author: FAULKNER, Justice.

text:
    Ex parte Donald David HAYNES. (Re STATE of Alabama ex rel. Pat SPEER v. Donald David HAYNES).
    No. 79-210.
    Supreme Court of Alabama.
    Aug. 8, 1980.
    Rehearing Denied Sept. 26, 1980.

      Izas Bahakel of Bahakel & Bahakel, Birmingham, for petitioner.
    Gordon F. Bailey, Jr. of Wilson, Propst, Isom, Jackson, Bailey & Bolt, Anniston, for respondent.
   FAULKNER, Justice.

We granted certiorari in this case to review the decision of the Court of Civil Appeals, 392 So.2d 1183, which reversed a lower court judgment denying a petition for child support filed by the State of Alabama. For the following reasons, we reverse and remand.

Pat Speer is the natural mother of David Scott Haynes. Ms. Speer married Donald David Haynes, who became the adoptive father of the minor, David. Donald Haynes and Pat Speer obtained a divorce in Texas by decree of the Court of Domestic Relations of Harris County, Texas. The date of the divorce decree is not present in the record. The divorce decree was modified on December 23, 1975, and, as modified, provided that Ms. Speer be granted custody of David Scott Haynes, that Donald Haynes be granted custody of Tamberly Michele Haynes, the parties’ other minor child, and that Donald David Haynes pay no child support to Ms. Speer for the maintenance of David Scott Haynes.

While the record shows that Ms. Speer and the minor, David, now reside in Alabama, the date of their move from Texas to Alabama is not revealed. Carolyn Baker, an employee of the Alabama State Department of Pensions and Security testified that Ms. Speer received Aid to Dependent Children payments from July 1974 until December, 1974, when she was terminated, that she was “re-awarded” payments from March, 1975 until June 1975, when she was “transferred,” that she was “re-awarded” payments in Calhoun County in November, 1977, and that she has been receiving support from the Calhoun County office of the Department of Pensions and Security since that time.

On November 28, 1978, the State filed a petition for child support in the Circuit Court of Calhoun County requesting Donald Haynes to pay child support. After an ore tenus hearing, at which Ms. Baker and Donald Haynes were the only witnesses, the trial court found that there was a valid and binding decree in Texas awarding custody of the two minor children and requiring Donald Haynes to pay nothing to Ms. Speer as child support for David Scott Haynes, that there existed no immediate emergency requiring the court to intervene in the matter, and that the parties could resolve their differences before the Court of Domestic Relations in Texas. The State’s motion for new trial was denied.

On appeal, the Court of Civil Appeals reversed the trial court’s judgment, holding that “the facts in this case clearly show a change of circumstances since the Texas judgment of 1975,” and that the Texas decree had no enforceable provisions, but “merely vacated a previous order of support.” The appellant contends that the facts do not support a finding of changed circumstances or of an emergency situation and that the Court of Civil Appeals erred in so finding. We agree.

Both the majority decision and the dissent set out the correct rule of law in a case such as the one presented before us (in fact, they cite the same opinion for authority): In matters relating to the welfare and protection of a child within the state’s jurisdiction, a court will grant relief upon a showing of changed circumstances or upon peculiar circumstances which create an emergency as to the immediate welfare of the child. Sappington v. Fort, 258 Ala. 528, 63 So.2d 591 (1953). See also Hajovsky v. Hajovsky, 276 Ala. 77, 159 So.2d 194 (1963), Fawkes v. Fawkes, 360 So.2d 719 (Ala.Civ.App.1978), Watkins v. Brannon, 54 Ala.App.424, 309 So.2d 464 (1974).

Where the majority and dissent part company is upon the view that the facts of the present case support a finding that there exist changed circumstances or an emergency sufficient to give the relief sought. Judge Wright said, “The facts of this case clearly show a change of circumstances since the Texas judgment of 1975. It is further shown that the child is in need of aid and support which is presently being supplied by the taxpayers of this state.” Judge Bradley, specially concurring, agreed that the trial court should be reversed, but for a different reason: “The fact that the child is receiving aid from a state welfare agency amply supports a conclusion that it needs support from its father and that such need constitutes an emergency in Calhoun County, Alabama.” Judge Holmes, dissenting, held a contrary view, stating:

The trial court, in this instance, determined .that no such emergency existed which was sufficient to invoke the jurisdiction of an Alabama court. Whether such emergency in fact existed is a question of fact. . . . The question of whether there is an emergency is a matter within the sound discretion of the trial judge.

In summary, Judge Wright held that the trial court abused its discretion in refusing to grant the relief sought because, in his view, the facts did support the conclusion that changed circumstances existed; Judge Bradley held that the trial court’s finding that no emergency existed was erroneous; and Judge Holmes held that the trial court properly exercised its discretion.

There is no doubt that an Alabama court could entertain concurrent jurisdiction with the Texas court which rendered the initial divorce decree, but the concurrent jurisdiction arises only when the circumstances create an emergency as to the immediate welfare of the child or upon a showing of changed circumstances. Ex Parte Dunlap, 260 Ala. 52, 68 So.2d 533 (1953), Sappington v. Fort, supra, Watkins v. Brannon, supra. We have examined the record and the applicable case law and hold that the trial court did not abuse its discretion in refusing to grant the relief sought because we have determined that the facts in the present case will not support a finding of either changed circumstances or of an emergency.

This case is similar to Sappington, supra, on the issue of whether circumstances had changed since 1975. Although Sappington dealt with custody as opposed to support, in that case the appellant, seeking to have an Alabama court modify an Oklahoma decree, contended that changed circumstances warranting relief existed. The Court stated, inter alia:

... It is insisted in brief that changed conditions require the court to grant relief. The Oklahoma Court after a hearing in May 1951, entered its decree. Upon what evidence this decree was entered, we have no way of knowing, since it does not appear in the record before us. The record before us shows no changed conditions. 258 Ala. at 531 (emphasis added).

In the case at bar, the record discloses that the parties obtained a divorce in Texas. The date of that initial divorce is not revealed. We cannot, and do not, know the facts presented before the Texas court at the time of the initial divorce decree. As in Sappington, “Upon what evidence this decree was entered, we have no way of knowing, since it does not appear in the record before us.” While we do know from the record that the Texas divorce decree was modified December 23, 1975, we do not know the facts presented before the court at the hearing to modify the divorce decree. We do know, however, from the testimony of Carolyn Baker, that Ms. Speer had received support payments from the Aid to Dependent Children program from July, 1974 until December, 1974 and from March, 1975 until June, 1975. Thus, Ms. Speer had received ten months of support payments from the Aid to Dependent Children program before the modification hearing in Texas in December, 1975. The record, instead of supporting the conclusion that changed circumstances exist, reveals that the circumstances present at the December, 1975 hearing for modification of the Texas decree were similar to the circumstances presented before the Calhoun County Circuit Court in January, 1979. The fact that Ms. Speer had received support payments since the Texas modification does not necessarily support the conclusion that circumstances have changed since the Texas modification.

In analyzing whether an emergency situation sufficient to warrant the trial court’s intervention was presented to the trial court, we are persuaded by Judge Holmes’s reasoning that such a determination was made after an ore tenus hearing, that a finding of whether an emergency existed was a question of fact, and that a finding of fact will not be disturbed unless palpably wrong, citing Lumpkin v. Meeks, 263 Ala. 395, 82 So.2d 535 (1955). Judge Bradley, in his concurrence, held that the trial court’s finding that no emergency existed was clearly erroneous. Apparently Judge Bradley was persuaded by the same argument appellee made during oral argument to this court, namely that the fact that the child is receiving support from a state agency constitutes an emergency, as a matter of law, sufficient to warrant the court’s intervention. We are not so persuaded. While the fact that a child is receiving support payments from a state agency is a factor to be considered by the trial court in its determination, we are not prepared to hold that an emergency exists as a matter of law where such a fact is presented.

We, therefore, hold that the trial court’s finding that the facts, as presented, did not support the conclusion that an emergency existed was not palpably erroneous, that the record does not support a finding that changed circumstances existed, and that the trial court did not abuse its discretion in refusing to grant the relief sought. For the foregoing reasons, this cause is reversed and remanded.

REVERSED AND REMANDED.

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

MADDOX and JONES, JJ., concur in result.

SHORES, J., dissents.


source: Caselaw Access Project

author: WRIGHT, Presiding Judge.

license: Public Domain

text:
    STATE of Alabama ex rel. Pat SPEER v. Donald David HAYNES.
    No. Civ. 1892.
    Court of Civil Appeals of Alabama.
    Oct. 22, 1980.
   Upon Remand from the Supreme Court.

WRIGHT, Presiding Judge.

Whereas on August 8, 1980, the Supreme Court of Alabama, 392 So.2d 1187, entered judgment upon writ of certiorari reversing the judgment of this court, 392 So.2d 1183, entered on October 31, 1979;

Upon remand, it is therefore considered by this court that the judgment of the Circuit Court of Calhoun County, Alabama, from which the appeal was originally taken to this court, is hereby affirmed.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


author: HOLMES, Judge.

text:
    William J. DAVIS, as Director of The State of Alabama Department of Industrial Relations v. Nellie HOGGLE.
    Civ. 2294.
    Court of Civil Appeals of Alabama.
    Sept. 24, 1980.
    Rehearing Denied Oct. 22, 1980.

      George Cocoris, Gen. Counsel, Legal Division, State of Ala. Dept, of Indus. Relations and Frank D. Marsh, Asst. Gen. Counsel, Legal Division, State of Ala. Dept, of Indus. Relations, Montgomery, for appellant.
    Charles H. Sims, III, Selma, for appellee.
   HOLMES, Judge.

This is an unemployment compensation case.

The dispositive issue is whether claimant’s voluntary termination of employment was for good cause connected with her work.

Claimant-appellee filed for unemployment compensation after terminating her employment with the All-Lock Company of Selma, Alabama.

The claim for benefits was rejected by the State on the ground that Code of Alabama 1975, § 25-4-78(2), disqualified claimant because her unemployment was voluntary without good cause connected with her work.

After unsuccessfully exhausting her administrative appeals, claimant appealed to the Circuit Court of Perry County. Following a trial de novo the circuit court found good cause for claimant’s voluntary termination of employment and held her entitled to benefits. The State moved to vacate the judgment on the ground the judgment was inconsistent with the law and the facts of the case. The motion was denied and the State appeals from the denial.

The record reveals the following pertinent facts: Claimant was employed for approximately three weeks by All-Lock on its night shift. She lived in Uniontown, Alabama, and without companions drove seventy-two miles round trip to and from work in Selma. Claimant earned approximately $114 a week and spent anywhere from $23 to $26 a week for gasoline. The drive home at night frightened claimant and made her so nervous that she could not sleep. On her application for unemployment compensation claimant gave the following as her reasons for quitting: “I could not afford to buy gas with what I was earning and [I was] afraid to drive 74 miles alone at night.” These transportation problems were the only reasons for quitting given by claimant at trial and during her administrative hearings.

At trial there was testimony concerning an attempt by claimant to transfer to the day shift. When several positions on the day shift became available claimant applied for a transfer. She testified at trial that a transfer to the day shift would have allowed her to join a car pool. Claimant was not transferred. New employees were hired to fill two of the positions.

Apparently, it is All-Lock’s policy to give preference to employees over nonemployees in filling positions on the day shift. All-Lock’s personnel manager testified that this policy does not apply to new employees such as claimant. Claimant testified that she was aware of the policy but unaware of the exception.

Claimant in her brief argues that All-Lock’s failure to transfer her was in violation of company policy, that All-Lock prevented her from solving her transportation problems by not transferring her, and that her transportation problems together with All-Lock’s failure to transfer her constitute good cause for her voluntary termination of employment.

Section 25-4-78(2), Code of Ala. 1975, provides:

An individual shall be disqualified for total or partial unemployment:
If he has left his most recent bona fide work voluntarily without good cause connected with such work.

It is undisputed that claimant voluntarily terminated her employment. She, therefore, bears the burden of proving that the termination was for a good cause connected with her work. Department of Industrial Relations v. Estes, 45 Ala.App. 360, 231 So.2d 137 (1970); 17A Ala.Digest Social Security Key 565.

It is clear from a perusal of the record before this court that the claimant terminated her employment because of her “transportation” problem. The claimant so testified.

At the outset we note that a reason for voluntary termination, no matter how well justified, will not satisfy § 25-4-78(2) if it is personal and in no way connected with the employment. Dept. of Industrial Relations v. Chapman, 37 Ala.App. 680, 74 So.2d 621 (1954); Morrison v. Dept. of Industrial Relations, 35 Ala.App. 475, 48 So.2d 72 (1950).

It is clear from the record that All-Lock did not create claimant’s transportation problems. These problems arose from claimant’s personal circumstances. Further, there is no evidence suggesting that All-Lock was obligated, by contract or otherwise, to provide or arrange transportation for claimant. Put another way, there is no evidence showing that claimant’s “transportation” problems arose from her employment.

While our research has not disclosed any Alabama case directly in point, the cases of other states with statutes similar to § 25-4-78(2) uniformly hold that an employee’s transportation problems, such as we have here, are personal and not connected with the employment. See, Tackett v. Administrator, Unemployment Compensation Act, 29 Conn.Supp. 251, 282 A.2d 582 (1971); Toothaker v. Maine Employment Security Comm’n, 217 A.2d 203 (Me.1966); Mississippi Employment Security Comm’n v. Ballard, 252 Miss. 418, 174 So.2d 367 (1965). Under the circumstances of this case, the claimant’s transportation problems do not constitute good cause under § 25-4-78(2).

However, claimant through able counsel, who favored this court with an excellent presentation, in effect argues that All-Lock violated company policy in failing to transfer claimant and that the failure to transfer was in fact the basis for claimant’s action.

The evidence concerning this contention, as indicated above, reveals that a co-employee testified it was All-Lock’s policy to give preference to employees over non-employees in filling positions on the day shift. In other words, the employee who “bid for the job inside the plant with the most seniority and the ability would get the job instead of somebody from the outside.” This same co-employee took claimant to All-Lock’s personnel office and claimant applied for a transfer. No evidence was presented that All-Lock was aware of claimant’s “transportation” problems.

All-Lock counters through testimony from its personnel manager that the company policy was to give employees preference over non-employees in filling positions on the day shift, but that the policy did not apply to new employees such as claimant.

Claimant’s evidence regarding this exception regarding new employees was that the exception was not known.

In view of the above the claimant has not met the burden of showing that All-Lock’s failure to transfer her was a cause or, even more, that it was a good cause for voluntary termination of employment. Dept. of Industrial Relations v. Mann, 35 Ala.App. 505, 50 So.2d 780, cert. stricken, 255 Ala. 201, 50 So.2d 786 (1950). This is particularly true in view of the fact that All-Lock was not aware of claimant’s problem; that there was no evidence that the exception regarding new employees did not exist; and that even if the exception did not exist there was no evidence that All-Lock was obligated to transfer claimant. Put another way, there is no testimony to indicate that a transfer would be granted in all cases where an employee applied for one.

Since there is no evidence to support a finding that claimant’s voluntary termination of her employment was for good cause connected with her job, we hold that the learned trial judge erred in denying the State’s post trial motion to vacate the judgment and enter judgment in favor of the State.

In addition to the above, claimant through able counsel suggests that the State’s motion to vacate the judgment is similar in nature to a Rule 50(b), ARCP, motion for judgment notwithstanding the verdict. Arguing this similarity, claimant asserts that the denial of the State’s motion was proper because the State did not first move for a directed verdict. Claimant’s understanding of this aspect of Rule 50, ARCP, is correct. However, that rule applies where trial is before a jury. See Rule 50(b), ARCP; Morris v. Prefabrication Engineering Co., 160 F.2d 779 (5th Cir. 1947); Wright & Miller, Federal Practice and Procedure: Civil § 2523 (1971). As this case was tried without a jury, Rule 50(b) has no application. Clearly, in this instance the State’s motion was properly treated by the trial court as a Rule 59(e), ARCP, motion.

In view of the above, this case is due to be reversed and remanded.

REVERSED AND REMANDED.

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


author: ALMON, Justice.

text:
    Ex parte Nellie HOGGLE. (Re: William J. DAVIS, as Director, etc. v. Nellie HOGGLE).
    80-81.
    Supreme Court of Alabama.
    Jan. 30, 1981.
   ALMON, Justice.

Writ denied. No opinion.

TORBERT, C. J., and FAULKNER, EM-BRY and ADAMS, JJ., concur.


text:
    James K. STEWART v. Kimberly Y. STEWART.
    Civ. 2393.
    Court of Civil Appeals of Alabama.
    Nov. 19, 1980.
    Rehearing Denied Dec. 17, 1980.
    James M. Prestwood, Andalusia, for appellant.
    Earl V. Johnson, Andalusia, for appellee.
   EDWARD N. SCRUGGS, Retired Circuit Judge.

On April 23, 1980, the defendant (appellant) filed what we determine to be an independent action under rule 60(b), ARCP, to be relieved from the payment of child support because of an alleged fraud upon the court. Since it was filed more than four months after the judgment, it cannot be construed to be a rule 60(b)(3) motion. Brown v. Kingsbury Mortgage Co., Ala., 349 So.2d 564 (1977).

Defendant avers that the plaintiff claimed to the court that defendant was the father of plaintiff’s child and that she has acknowledged to others that defendant is not the father of the child. An affidavit of plaintiff’s ex boyfriend as to such acknowledgment is attached to defendant’s petition. Defendant further contended that he could not be the father of the child. The second exhibit to the petition is a physician’s opinion contained in a certificate that defendant has primary infertility, is sterile, and has never been able to procreate.

Plaintiff filed a motion for a summary judgment on the grounds that there is no genuine issue as to any material fact and that she is entitled to a judgment as a matter of law. Attached to her motion is her complaint for a divorce as filed on April 16, 1979, whereby she alleged, “There are no children now born of this marriage, but the Plaintiff is at this time pregnant and expecting the parties’ child in late September of 1979.” Along with a divorce and other relief, plaintiff sought support for the child and medical expenses. Further exhibits to her motion were the June 13, 1979, contested divorce judgment and defendant’s answer whereby he admitted the above quoted averment but generally denied that he should pay such support or expenses. The divorce judgment, in providing for the child’s custody, defendant’s visitation privileges, and support and medical expenses, contained the following phrases as to the paternity of the unborn child: “when the minor child of these parties is born,” “after the minor child of these parties reaches the age of 2 years,” “the parties' unborn child,” “the minor child of the parties,” and “the parties’ minor child.”

After defendant filed a response to plaintiff’s motion, the circuit court granted the summary judgment motion and the defendant appeals.

While we have been unable to locate an Alabama case in point, the cases from other jurisdictions are almost unanimous that such phrases in a judgment constitute a finding that the defendant was the father of the child and that in subsequent proceedings between them, a husband and wife are concluded by the paternity determination in the divorce judgment. 78 A.L.R.3d 825; 65 A.L.R.2d 1372. “Moreover, the question of legitimacy is res judicata between the parties, where it was alleged in the complaint for divorce that the children were the issue of the marriage between plaintiff and defendant, and the decree awarded to plaintiff the custody and care of the issue of the marriage.” 27B C.J.S. Divorce § 321(1) at 629 (1959).

Normally, therefore, these parties would be precluded from disputing the paternity of the child. However, the principles of res judicata may not be utilized to sustain certain types of fraud. We must ascertain whether the matters alleged in the defendant’s independent action constitute a “fraud upon the court” under rule 60(b).

In Brown v. Kingsbury Mortgage Co., supra, “fraud upon the court” was construed to be fraud which defiles or attempts to defile the court itself. Historically, this would constitute extrinsic or collateral fraud as distinguished from intrinsic fraud. Fraud must have been practiced in the very act of concocting, obtaining or procuring the judgment and must have been extrinsic or collateral to the matter which was tried and determined. Hooke v. Hooke, 247 Ala. 450, 25 So.2d 33 (1946).

In Heller v. Heller, 272 Ala. 429, 132 So.2d 251 (1961), the plaintiff wife averred and proved voluntary abandonment as her ground for a divorce. Her ex husband, by means of a bill in the nature of a bill of review, sought to vacate the divorce decree on the ground that the plaintiff and another witness committed perjury by swearing as to his voluntary abandonment of her. The court determined that “[t]he rule is well settled that perjury or false swearing in the course of litigation is not per se a ground of equitable interference in a judgment or decree” and held that the demurrer to the bill should have been sustained. For other domestic relations cases with similar holdings, see Schmidt v. Schmidt, 291 Ala. 543, 283 So.2d 601 (1973); and Miller v. Miller, 238 Ala. 228, 189 So. 768 (1939). This is a rule of necessity, for, without it, a rule 60(b) motion or independent action could be filed in every case. The doctrine of res judicata still has validity, and the finality of judgments is favored.

The alleged fraud was not a “fraud upon the court.” It did not vitiate the finding of paternity in the divorce judgment, which still constitutes res judicata as between the parties as against such allegations. Plaintiff was entitled to a summary judgment as a matter of law, and the trial court correctly granted her motion therefor.

We affirm.

Plaintiff has requested an award of attorney’s fees for representation on appeal. An attorney’s fee of $300.00 is awarded.

The foregoing opinion was prepared for this court 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 1975. His opinion is hereby adopted as that of the court.

AFFIRMED.

All the Judges concur.


text:
    Ex Parte James K. STEWART. (Re James K. Stewart v. Kimberly Y. Stewart).
    80-238.
    Supreme Court of Alabama.
    Feb. 5, 1981.
   FAULKNER, Justice.

Writ denied. No opinion.

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

ALMON, J., dissents.


text:
    Eva Calloway JONES v. Joseph Lawrence JONES.
    Civ. 2309.
    Court of Civil Appeals of Alabama.
    Nov. 26, 1980.
    Rehearing Denied Dec. 17, 1980.

      J. Vincent Low, Birmingham, for appellant.
    John H. Lair, Birmingham, for appellee.
   HOLMES, Judge.

This is an appeal by the wife from the Circuit Court of Jefferson County’s denial of a petition to modify a final decree of divorce.

On October 20, 1978, the husband and wife were divorced. Before the divorce was granted, the parties reached an agreement concerning the disposition of their real and personal property. That agreement was incorporated into the final decree.

The agreement provided, inter aha, that the wife would have exclusive use and occupancy of the marital home and that the husband would pay the monthly house note, provide the wife with health insurance, pay the wife $2,400 lump sum alimony over a period of twenty-four months and discharge certain debts the parties incurred during their marriage.

On October 9, 1979, the wife filed a petition to modify the final decree on grounds of changed circumstances. She alleged that she had been declared legally blind since the rendition of the divorce decree and, because she was unable to support herself, she was in need of additional periodic alimony. In response, the husband contended that the decree embodied an integrated bargain agreement which could not be modified without his consent and no material change of circumstances.

In relation to the integrated bargain agreement, we note the following:

The well-established rule on appeal is that the trial court’s judgment will be presumed correct where it heard the evidence orally and this court will not set it aside except for plain and palpable error. Parrish v. Parrish, Ala.Civ.App., 365 So.2d 1237 (1979).

In an integrated bargain agreement, the parties have established the amount of alimony to be paid for support and maintenance by taking into account the property settlement features of the agreement. Such an agreement provides for both support and division of property, but the entire provision for one spouse is in consideration for the entire provision for the other, so that the support and property terms are inseparable. DuValle v. DuValle, Ala.Civ.App., 348 So.2d 1067 (1977). To characterize an agreement, the court must look to the intent of the parties. DuValle, supra.

In the case at hand, the trial judge not only had the agreement before him, but he also had the parties testify before him. We note that consideration of the majority of the factors listed in DuValle, supra, supports the conclusion that the parties in this case intended the payments to be a property settlement and that the agreement is an integrated one.

Nevertheless, even if the trial court had determined that the agreement was not an integrated one, which he could have done, the petition for modification denial by the trial judge is still supported by the evidence.

A change in condition of one or both of the parties must be proven to justify modification. Block v. Block, 281 Ala. 214, 201 So.2d 51 (1967). It is well established that a divorce decree is final as to conditions existing at the time of the divorce, since the trial judge is presumed to have considered them before rendering the decree. Whitt v. Whitt, 276 Ala. 685, 166 So.2d 413 (1964); Colton v. Colton, 252 Ala. 442, 41 So.2d 398 (1949).

The wife in this case bases her request for modification on her failing vision. She contends that since the rendition of the divorce decree she has been declared legally blind by a physician. There is, however, evidence before the trial court which shows that she has had poor vision for years and that her vision at present is no worse than it . was at the time of the divorce. As a consequence, the wife has failed to show a change of conditions.

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

AFFIRMED.

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


text:
    Ex parte Eva Callaway JONES. (Re: Eva Calloway Jones v. Joseph Lawrence Jones).
    80-240.
    Supreme Court of Alabama.
    Jan. 30, 1981.
   ALMON, Justice.

Writ denied. No opinion.

TORBERT, C. J., and FAULKNER, EM-BRY and ADAMS, JJ., concur.


text:
    Clyde MONFEE v. Ray SEYMORE.
    Civ. 2198.
    Court of Civil Appeals of Alabama.
    Dec. 17, 1980.
    Rehearing Denied Jan. 14, 1981.

      W. ' Clarence Atkeison and Kenneth Shinbaum, Prattville, for appellant.
    J. Myron Smith of Law Offices of Theron 0. McDowell, Jr., Prattville, for appellee.
   HOLMES, Judge.

The plaintiff, Monfee, sued the defendant to recover possession of six head of cattle. The defendant, Seymore, counterclaimed, alleging that plaintiff’s cattle damaged his crops. A jury found in favor of defendant on the counterclaim and assessed damages at $1,300. Plaintiff’s motion for a new trial was denied and plaintiff appeals.

The plaintiff presents three issues for review.

The first issue is whether the trial court erred in sustaining the jury’s assessment of damages at $1,300 when there was evidence of only $1,238.88 in damages.

Defendant, in his brief, concedes the verdict is excessive by the amount of $61.12. For this reason no further consideration of this issue is necessary.

The second issue is whether there is evidence to support the jury’s finding that plaintiff knowingly, voluntarily, wilfully, or negligently permitted his cattle to go upon the premises of the defendant in October of 1978. We find no such evidence.

The third issue is whether the trial court erred in refusing to give plaintiff’s requested written charges. These requested charges stated in substance that under § 3 - 4 6(a), Code of Ala.1975, a landowner cannot recover for damages to crops caused by another’s cattle if the landowner has failed to erect and maintain a lawful fence. We find the trial court did not err in refusing these requested charges.

The record reveals the following facts:

Defendant was in possession of a tract of land adjoining plaintiff’s land. Plaintiff’s land was fenced and was used by plaintiff for raising cattle. A portion of plaintiff’s fence separated his land from that of defendant. The defendant held his land under a lease and used it to grow corn, wheat, and beans.

Defendant testified that on two separate occasions, the first being in October of 1978 and the second in May of 1979, plaintiff’s cattle came on his land and damaged his crops. Defendant valued the loss to his crops in October of 1978 at $456 and the loss in May of 1979 at $435.88.

The record further shows that plaintiff’s cattle were at large on defendant’s land from May 7 to May 23, 1979.

On May 23, 1979, defendant captured the cattle and penned them at a stockyard. In capturing and putting the cattle up defendant incurred expenses in the amount of $347. Plaintiff does not contest his liability for this amount.

I

Section 3-5-2(a), Code of Ala.1975, provides:

It shall be unlawful for the owner of any livestock or animal, as defined in section 3-5-1, to knowingly, voluntarily, negligently or wilfully permit any such livestock or animal to go at large in the state of Alabama either upon the premises of another or upon the public lands, highways, roads or streets in the state of Alabama.,

and § 3-5-3(a), Code of Ala.1975, in pertinent part provides:

The owner of such livestock or animal being or running at large upon the premises of another or upon the public lands, roads, highways or streets in the state of Alabama shall be liable for all damages done to crops, shade or fruit trees or ornamental shrubs and flowers or any person, to be recovered before any court of competent jurisdiction; ....

Stated succinctly, the owner of livestock is liable for all damages done to crops if he knowingly, voluntarily, wilfully, or negligently permits his livestock to go at large upon the lands of another. Glover v. Pugh, 40 Ala.App. 258, 122 So.2d 142 (1959), cert. denied, 271 Ala. 64, 122 So.2d 147 (1960). See, Clark v. Moore, Ala., 341 So.2d 116 (1976).

As indicated above, plaintiff contends there is no evidence to support a finding that he knowingly, voluntarily, wil-fully, or negligently allowed his cattle to go upon defendant’s land in October of 1978.

We agree. The only testimony concerning the presence of the cattle on defendant’s land in October of 1978 is to the effect that defendant saw the cattle on his land and that they caused damages in the amount of $456. There is no evidence indicating how the cattle got through plaintiff’s fence or how long they stayed on defendant’s land. In short, there is no evidence from which the jury could infer that plaintiff knowingly, voluntarily, wilfully, or negligently allowed his cattle to go at large on defendant’s land in October of 1978. For this reason, we find that the verdict is excessive in the additional amount of $456, this amount being the damages to the crops in October of 1978.

We note in passing that plaintiff in his brief does not challenge the sufficiency of the evidence supporting the jury’s finding that he unlawfully allowed his cattle to go at large on defendant’s land in May of 1978. Thus, plaintiff, in effect, concedes there is evidence to support a verdict in defendant’s favor of at least $435.88 for damages to his crops in May of 1979.

II

The final issue is whether the trial court erred in failing to instruct the jury that § 3 -4 ■ 6(a), Code of Ala.1975, precludes liability where the landowner has not erected a lawful fence to protect his crops.

Section 3-4-6(a) provides:

If any trespass or damage is done by any animal breaking into lands not enclosed by a lawful fence as defined in this chapter, the owner shall not be liable therefor.

Our research reveals that prior to 1941 Alabama was an open range state where it was lawful for one to allow his livestock to go at large on the lands of another. Under Alabama’s open range laws, the owner of livestock was not liable for damages for intrusions of stock on the lands of another. The burden was upon the crop growing landowner to fence livestock out. Glover v. Pugh, supra; Randle v. Payne, 39 Ala.App. 652, 107 So.2d 907 (1958), cert. denied, 268 Ala. 697, 107 So.2d 913 (1959).

In 1939, the legislature enacted a comprehensive stock law. Under its provisions, which include our present Code sections 3 5-2 and 3-5-3, Alabama was declared a closed range state. See, § 3-5-2(c), Code of Ala.1975. There were, however, provisions whereby a county could elect to become open range. Act No. 368, Acts of Alabama 1939, p. 487.

In 1951, the legislature declared it unlawful to permit livestock to run at large in any county; abolished all open range counties; and repealed the Code sections providing for the creation of open range counties along with “all other laws or parts of laws in conflict herewith.” Act No. 53, Acts of Alabama 1951, p. 266.

In other words, the legislature worked a complete change in Alabama’s stock laws and in doing so repealed all laws that were in harmony with the concept of an open range. Whereas under prior law the burden was on the landowner to fence stock out, Hurd v. Lacy, 93 Ala. 427, 9 So. 378 (1890); Rowe v. Baber, 93 Ala. 422, 8 So. 865 (1890), the burden is now on the stock owner to fence his stock in. Glover v. Pugh, supra; Randle v. Payne, supra; Revel v. Prince, 37 Ala.App. 457, 69 So.2d 470 (1954); §§ 3-5-2(a) and 3-5-3(a), Code of Ala.1975.

We find § 3~4-6(a) to be in harmony with the concept of open range and in conflict with present law inasmuch as § 3-4-6(a) in effect requires a landowner to erect a lawful fence to protect his crops and shields a stock owner from liability when the landowner has failed to do so. Code section 3-4-6(a) has, therefore, been repealed by the 1951 Act and it is no longer the law of this state.

For this reason, we find the trial court did not err in refusing plaintiff’s requested written charges.

Ill

For the sake of clarity, we deem it expedient to summarize the evidence and our findings on the jury’s assessment of damages.

As indicated above, the jury assessed damages at $1,300. Defendant has conceded that this assessment is excessive and that a remittitur of $61.12 is in order. Of the $1,238.88 remaining, $456 is attributed to damages sustained in October of 1978; $435.88 to damages sustained in May of 1979; and $347 for expenses incurred by defendant in capturing and feeding plaintiff’s cattle.

For the reasons stated above, the jury’s assessment of $456 for damages sustained in October of 1978 cannot stand. This leaves the sum of $782.88. This amount is the most defendant can recover under the law and facts of this case.

A judgment will accordingly be entered that, unless the defendant files a remittitur with the clerk of this court within thirty days reducing the judgment to $782.88, the judgment of the trial court shall stand reversed and the case shall be remanded. If, however, such remittitur is filed, a judgment for $782.88 will stand affirmed. Liberty Truck Sales v. Fountain, Ala.Civ.App., 381 So.2d 646 (1980).

AFFIRMED CONDITIONALLY.

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


text:
    Greg S. MILLER v. AUTO-OWNERS INSURANCE CO.
    Civ. 2460.
    Court of Civil Appeals of Alabama.
    Jan. 7, 1981.

      James L. Goyer, III of Cabaniss, Johnston, Gardner, Dumas & O’Neal, Birmingham, for appellant.
    Sanford D. Weiss of Weiss & Sawyer, Montgomery, for appellee.
   WRIGHT, Presiding Judge.

This appeal comes directly from the District Court of Montgomery County to this court pursuant to § 12-12-72, Code of Alabama (1975). We affirm.

The facts giving rise to this cáse are as follows:

Greg Miller was employed by the Alabama Development Office (ADO), an agency of the State of Alabama, as a driver. On October 30, 1979, while in the course of his employment and driving a State-owned vehicle, Miller collided with a vehicle owned by Alabama Printers, Inc. (Printers). At the time of this accident, Auto-Owners Insurance Co. (AOIC) was providing automobile insurance coverage for Printers.

On November 8, 1979, its vehicle apparently a total loss, Printers executed a bill of sale to its insurer AOIC for the vehicle. In return AOIC paid Printers $3,150 pursuant to its collision coverage, and was assigned the rights, title and interest to all claims resulting from the October 30 accident through a subrogation agreement with Printers. Also on December 6, Printers filed a claim with the State Board of Adjustment, seeking $400 in damages arising out of the accident, $200 for the deductible on the collision policy and $200 for out-of-pocket expenses for the loss of use of the vehicle. The claim clearly stated in two places that Printers was insured by AOIC and that AOIC had paid collision coverage in the amount of $3,150.

On May 6, 1980, suit was filed in the names of Printers and AOIC against Miller, individually, seeking damages of $3,350 plus costs. On May 22 the State Board of Adjustment paid the claim of Printers, and Printers executed a release of all claims against the State of Alabama, its departments, agencies, institutions, officers and employees, arising from the accident of October 30, 1979.

The case against Miller proceeded to trial before the district court. On July 23, 1980, Miller was found liable in the amount of $2,800 to AOIC, the subrogee-insurer. Plaintiff Printers was voluntarily dismissed with prejudice.

Miller filed notice of appeal to this court and the parties entered an agreed stipulation of facts and waived jury trial in the circuit court. These procedures were in compliance with a § 12-12-72 appeal.

The dispositive issue on appeal is whether the release executed by the insured, Printers, bars the cause of action of the insurer-subrogee, AOIC, against the party causing the loss, defendant Miller.

There have been very few cases in Alabama dealing with the question here presented. However, our courts have adopted the rule that an insurance company’s right to subrogation is lost as against a wrongdoer who, without notice of the insurer’s rights, settled with and was released from liability by the insured. Calvert Fire Insurance Co. v. Maddox, 38 Ala.App. 194, 82 So.2d 277 (1955). A statement found at 46 C.J.S. Insurance § 1209 at 155 (1946) expresses both that rule and the natural converse thereof.

When a wrongdoer chargeable with notice of insurer’s rights as subrogee of the insured makes a settlement with insured to which insurer is not a party, the settlement will be regarded as having been made subject to the rights of the insurer, and without destruction thereof; but a general release by insured to a third person without notice or knowledge of the insurance company’s rights is a bar to the company’s claim to subrogation.

Having made a thorough review of the authorities, we believe the correct and applicable rule to be consistent with the statement set forth above. Thus, if the tort-feasor has notice or knowledge of the insurer’s rights as subrogee at the time the release is executed by the insured, that release will be regarded as subject to the rights of the insurer-subrogee. If, on the other hand, the tortfeasor is without notice or knowledge of those rights at the time of execution of the release, the release will act as a bar to the insurer-subrogee’s claim. The question, therefore is reduced to one of notice or knowledge. Did Miller have notice or knowledge of AOIC’s subrogation rights at the time Printers executed the release? See, Collins v. Mobile & O.R. Co., 210 Ala. 234, 97 So. 631 (1923).

Defendant asserts that no notice existed. He grounds that assertion upon the stipulation of facts submitted by the parties for the purpose of appeal. The stipulated fact upon which he relies reads as follows:

15. At no time did AOIC give to ADO or Miller notice of its subrogation to [the rights of] Alabama Printers....

We take this stipulated fact to be true upon our review. Mobley v. Turner, 346 So.2d 427 (Ala.1977). We are bound to say that the insurer never gave notice of its subro-gation rights to the defendant. However, this fact is not determinative. It is abundantly clear from the record that Miller and his employer, the State of Alabama, had actual notice of AOIC’s interest prior to the execution of the release by Printers.

Without regard to notice to Miller through notice to his employer, by the filing of the claim of Printers in December 1979, Miller did receive actual notice of the interest of AOIC by the service of the suit against him on May 8,1980. The release of which he claims benefit was not executed until May 22, 1980.

Litigation to enforce the insurer’s subrogation claim, pending at the time of the tortfeasor’s settlement with the insured, ordinarily will constitute sufficient notice of insurer’s interest to the tortfeasor. 92 A.L.R.2d 102 at 140 (1963). Suit was filed against Miller and service was had upon him at least two weeks prior to the execution of the release. That suit, filed prior to the execution of the release, particularly where brought in the name of the insurer, was sufficient to apprise Miller of the insurer’s interest. Wichita City Lines, Inc. v. Puckett, 156 Tex. 456, 295 S.W.2d 894 (1956).

We also consider that notice to his employer, State of Alabama, via the filing of the claim of Printers for payment of the deductible of its insurance with AOIC, was also notice to Miller. It was the employer which paid the consideration for and obtained the release by which Miller seeks to avoid liability.

The judgment below is affirmed.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


text:
    Annette HOLCOMB v. William K. BOMAR and Yvonne Bomar.
    Civ. 2269.
    Court of Civil Appeals of Alabama.
    Jan. 14, 1981.
    Stephen D. Heninger of Hare, Wynn, Ne-well & Newton, Birmingham, for appellant.
    J. A. Hornsby, Gadsden, for appellee.
   WRIGHT, Presiding Judge.

This is an adoption case. The appeal involves two separate adoptions of the same child. The natural mother appeals from a judgment upholding the validity of both adoptions and establishing the child’s aunt and uncle as the proper adoptive parents.

In October 1970 the appellant, a seventeen-year-old married woman, gave birth to a son. Thereafter appellant and the father of the child separated and were subsequently divorced in April 1972. Later that year the father’s parents, the paternal grandparents, filed a petition to adopt the child. The appellant and the father, as natural parents of the child, executed a consent to that adoption. A final decree of adoption was entered by the probate court of Eto-wah County in November 1972.

In February 1973 the appellant filed a petition in the probate court seeking to set aside the adoption by the paternal grandparents. The petition alleged fraud on the part of the adoptive parents. After a hearing was set and continued on that petition, the appellant failed to pursue the matter further. The petition remained pending in the probate court.

In December 1975, for reasons stated at trial but unimportant to this appeal, proceedings were begun by the child’s paternal aunt and uncle to adopt the child from the adoptive parents. A consent was executed by the adoptive parents and by the natural mother. An investigation was made by the Etowah County Department of Pensions and Security, and a final adoption decree was rendered by the Probate Court of Eto-wah County in June 1976.

In 1978 the appellant filed a petition in the Circuit Court of Etowah County to set aside the 1976 adoption, alleging fraud. Thereafter the appellant sought removal of her 1973 petition, filed in the probate court, to the circuit court and to consolidate that action with her 1978 petition. Removal was ordered and the cases ordered consolidated for trial. The validity of the first and second adoptions was determined through separate ore tenus hearings and judgments before the circuit court.

While it is our policy that appeals to this court be decided on their merits and on the issues as presented to the court by the parties, we are unable to do so in this case. 2A Ala.Dig. Appeal and Error Key No. 782.

Adoption proceedings are purely statutory and the statutes governing adoption must in most instances be strictly construed. Doby v. Carroll, 274 Ala. 273, 147 So.2d 803 (1962); Straszewicz v. Gallman, 342 So.2d 1322 (Ala.Civ.App.1977). Our adoption statutes provide that general jurisdiction over adoption proceedings rests with the probate courts. Section 26-10-1 et seq., Code of Alabama (1975). Adoption proceedings may also take place in the juvenile courts and district courts where such proceedings are removed from the probate court on motion of any party to the proceedings. §§ 12-15-30, 12-12-35, Code of Alabama (1975).

The two adoptions which are the subject of this appeal were filed in and finalized by the probate court. The validity of the adoptions was challenged in the circuit court hearings.

We have diligently searched for some legal authority permitting the circuit court to determine, by independent petition, the validity of an adoption decree entered by the probate court. We have found no such authority. We are convinced the circuit court had no jurisdiction to entertain the original petition challenging the validity of the probate court decree for adoption entered in 1976. That petition could only be filed in the probate court. Neither was there authority in the circuit court to remove the 1973 petition from the probate court. There is no statute for removal of any proceeding in the probate court to the circuit court except § 12-11-41, code of Alabama (1975), pertaining to administration of estates. We find ex mero motu the judgments of the circuit court void. Void judgments will not support an appeal. City of Huntsville v. Miller, 271 Ala. 687, 127 So.2d 606 (1961).

As advisory only, it appears the 1973 petition should return to the probate court for consideration as appropriate. A petition challenging the 1976 adoption may also be filed in probate court if desired.

APPEAL DISMISSED.

BRADLEY and HOLMES, JJ., concur.


text:
    Caroline C. BLAIR et al. v. Johnie Joseph COOPER et al.
    Civ. 2380.
    Court of Civil Appeals of Alabama.
    Jan. 14, 1981.

      Sterling G. Culpepper, Jr. of Smith, Bowman, Thagard, Crook & Culpepper, Montgomery, for appellants.
    G. Houston Howard, II of Howard & Dunn, Wetumpka, for appellees.
   WRIGHT, Presiding Judge.

This appeal is from a judgment establishing boundary lines between plaintiffs’ and defendants’ lands and an award of damages to plaintiffs for loss of the use of pasture.

In the late 1950’s J. S. Cooper divided his land among various members of his family, two of whom were Johnie Cooper, a son, and Caroline Cooper Blair, a daughter. In the years following the division of J. S. Cooper’s property, Johnie and Caroline each acquired certain tracts from other family members and eventually came to own several parcels adjacent to one another. Johnie and Caroline disagreed over the proper location of boundary lines between these adjacent parcels on many occasions. Five surveys were made of the adjoining properties in about a fifteen-year period previous to this action.

In 1977 plaintiffs Johnie Cooper, his wife and son filed suit against defendants Caroline Cooper Blair and her husband in the Circuit Court of Elmore County, seeking a determination of the true and correct boundary lines between the lands of the parties, injunctive relief and damages. The defendants counterclaimed requesting the determination of the boundary lines and alleging trespass on the part of the plaintiffs.

The case proceeded to trial before the court. A final decree was entered determining that the true boundary lines lay “in accordance with the survey known as the P. J. Jennings Survey,” and awarding plaintiffs $2,850 for loss of the use for two years of ninety-five acres of pasture. Defendants’ motion for new trial was denied. They appeal.

We note that only one of the four boundary lines determined by the trial court is disputed on appeal. That is the east-west line between the properties of brother and sister Johnie Cooper and Caroline Cooper Blair.

The dispositive issue, after the trial court heard the evidence ore terns, is whether the findings made by the court were clearly erroneous or manifestly unjust. Wills v. Blackwell, 386 So.2d 427 (Ala.1980). A judgment establishing a boundary line will be affirmed if under any reasonable aspect of the case, the decree is supported by credible evidence. The trial court will not be reversed unless there is a clear and decided preponderance of the evidence against its judgment. Ferrell v. Shomo Land Company, 345 So.2d 297 (Ala.1977).

After “viewing” the disputed property on two occasions, the last after hearing the testimony and considering written briefs, the learned trial judge set the boundary lines. It is evident that the judgment was based, in part, upon evidence available only through the views of the premises. The court’s conclusions of fact made pursuant to the view are not subject to our review on appeal. Fuller v. Blackwell, 246 Ala. 476, 21 So.2d 617 (1945).

The evidence was lengthy and difficult to follow from the record. There were many, many instances when the witness testified by “indicating” a point on a map or document. This court has little or no idea what the witness was “indicating” or where “it” was located. The trial judge saw and followed such “indications.” He also was able to view and locate points referred to by the witnesses and shown on exhibits as they appeared on the ground. It is very obvious how advantageous such personal viewing must have been in considering the testimony of the witnesses. This court cannot review from that advantage. Furthermore, there is credible evidence that we see in the record which sufficiently supports the judgment as to the location of the disputed boundaries against any contention that it is manifestly erroneous. We therefore must affirm it. See, Ferrell v. Shomo Land Company, supra.

The defendants contend that the court erred in awarding damages of $2,850 to plaintiffs for loss of the use of pasture. We agree. Plaintiffs’ claim for damages is based upon the defendants’ removal of plaintiffs’ fence and the building of another upon the property of the plaintiffs. That latter fence was insufficient to contain the cattle of plaintiffs and resulted in the loss of use of pasture land by plaintiffs. The award of $2,850 damages was stated by the court to be for the loss of use of ninety-five acres of pasture land for two years at a rental value of $15 per acre per year.

We have searched the record carefully and have found no evidence that would support an award based on the loss of use of ninety-five acres of pasture. Plaintiffs testified that they lost the use of thirty acres of pasture during the two-year period at a value of $15 per acre per year. The remaining portion of the land was woodland and not pasture. We find the evidence to support an award of only $15 per acre for the loss of use of thirty acres of pasture for two years. An award for loss of more than the thirty acres would be based on speculation and would be improper. 7A Ala.Dig. Damages Key No. 163. Plaintiffs bore the burden of establishing the existence and amount of any damages awarded. Smith v. Richardson, 277 Ala. 389, 171 So.2d 96 (1965).

It is therefore the judgment of this court that unless plaintiffs file a remittitur of $1,950 with the clerk within fourteen days from the date of this judgment, the judgment of the trial court shall be reversed in part and the case remanded. If, however, such remittitur is filed, a judgment for $900 will stand affirmed. Liberty Truck Sales, Inc. v. Fountain, 381 So.2d 646 (Ala.Civ.App.1980).

AFFIRMED CONDITIONALLY.

BRADLEY and HOLMES, JJ., concur.


text:
    Floyd Russell BOLDEN v. M. LOWENSTEIN & SONS, INC.
    Civ. 2441.
    Court of Civil Appeals of Alabama.
    Jan. 14, 1981.

      J. Thomas Conwell, Jr. of Conwell & Con-well, Huntsville, for appellant.
    Jerry B. Ange of Ford, Caldwell, Ford & Payne, Huntsville, for appellee.
   WRIGHT, Presiding Judge.

This is a workmen’s compensation case.

The Circuit Court of Madison County returned a judgment in favor of the employer, denying the employee’s claim for benefits. The employee appeals. We affirm.

The primary disputed issue was whether the injury complained of arose out of and in the course of plaintiff’s employment. Plaintiff produced evidence that the injury occurred about a month before he left his job when he slipped and fell while performing his duties as a “loom greaser” in defendant’s textile plant. Defendant presented evidence that the injury occurred not on the job but some ten days after plaintiff quit his job when the plaintiff tried to lift a child at his home. Both sides produced abundant evidence in support of their respective positions. The trial court entered judgment for the defendant finding, in pertinent part, “[Tjhat on October 1, 1978, while at home and at a time when he was not employed by defendant, the plaintiff, while lifting a child, ruptured a lumbar disc and otherwise injured his back, which resulted in said hospitalizations and medical care. . . . ” and that “[T]he plaintiff did not sustain any injury or accident arising out of and in the course of his employment by defendant. . . . ” The primary issue presented by this appeal is simply whether the evidence was sufficient to support that judgment.

We have noted many times that our workmen’s compensation laws are remedial in nature, should be liberally construed to effect the beneficent purposes thereof and that all reasonable doubts must be resolved in favor of the employee. Lauderdale County Co-op, Inc. v. Shook, 376 So.2d 199 (Ala.Civ.App.1979). This does not mean, however, that the rule as to the measure of proof, or the sufficiency of the evidence is different from the rule in ordinary cases. Kroger Company v. Millsap, 280 Ala. 531, 196 So.2d 380 (1967). The burden is upon the compensation claimant to reasonably prove that the injury complained of arose out of and in the course of employment. Haney v. Dunlop Tire and Rubber Corp., 373 So.2d 334 (Ala.Civ.App.1979). It is our long-standing and well-settled rule that a judgment in a workmen’s compensation proceeding will not be disturbed upon review by certiorari if there is any legal evidence to support the trial court’s finding. Hill v. J. P. Stevens & Co., 360 So.2d 1035 (Ala.Civ.App.1978). The existence of such evidence and not the weight or preponderance thereof is our concern on review of these cases. Fairfax Manufacturing Co. v. Bragg, 342 So.2d 17 (Ala.Civ.App.1977). See, 19A Ala.Dig. Workmen’s Compensation Key No. 1940, for innumerable authorities.

We have reviewed the record carefully. There was legal evidence presented which is supportive of the trial court’s finding that the injury complained of did not arise out of or occur in the course of plaintiff’s employment. The presence of such evidence requires that we uphold that finding.

Finally, plaintiff asserts that the trial court erred in refusing to admit a deposition into evidence. The plaintiff sought to have the deposition admitted pursuant to Rule 32(a)(3), ARCP. The defendant objected and the court sustained the objection. In view of the existence of legal evidence in support of the trial court’s findings, we deem it unnecessary to consider the court’s ruling on the admissibility of this deposition. Jack Cole Co. v. Crawford, 285 Ala. 440, 233 So.2d 225 (1970). We will not review technical questions regarding the trial court’s rulings on objections to the admission of evidence in a workmen’s compensation case. Young v. City of Huntsville, 342 So.2d 918 (Ala.Civ.App.1976). We do not address the question raised by the plaintiff in that regard.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


author: SCRUGGS, Retired Circuit Judge.

text:
    Irving BOGATIN, Successor Trustee of An Express Trust d/b/a Alabama Laundries & Linen Supply v. Bobby D. GRUBBS.
    Civ. 2444.
    Court of Civil Appeals of Alabama.
    Jan. 14, 1981.

      Audrey L. Roberts, Huntsville, for appellant.
   SCRUGGS, Retired Circuit Judge.

This appeal concerns questions of res ju-dicata. We shall refer to the 1979 case as Case 1 and to the 1980 case as Case 2.

Case 1

Mr. Bogatin (plaintiff) sued Mr. Grubbs (defendant) doing business as Seacove Seafood Restaurant on open account, account stated and for linen supplies rented and delivered to the defendant. In his answer, the defendant, among other defenses, charged that the account sued upon was a debt of Restaurant Management, Inc., an Alabama corporation, doing business as Seacove Seafood Restaurant. The plaintiff added Restaurant Management, Inc. as a party defendant and requested the production of certain tax returns, documents and statements from both defendants, who moved for, and were granted, a protective order limiting the scope of discovery as to some of the materials sought on the probable ground that the excluded documents were pertinent only after judgment. The plaintiff moved the court to add Beckon Drive-Inn, Inc. as a defendant, one of the averments in the motion being that Restaurant Management, Inc. and Beckon “are mere shells for the convenience and protection of Defendant Bobby D. Grubbs.” That motion was overruled.

No pretrial order was made; however, just before the trial the following occurred:

MR. ROBERTS: Judge, it is my understanding that we are here today to try the issue of whether or not Bobby D. Grubbs owes this money to Alabama Laundries & Linen, or whether or not Restaurant Management, Inc., owes the money to our plaintiff. Our contention here today will be limited simply to those two issues and not whether or not Bobby D. Grubbs will be liable under some theory that he is responsible for the debts of the corporation, Restaurant Management, Inc. We will not be trying that issue here today, either expressly or by implied consent.
MR. MARTINSON: Judge, I really don’t know what he is talking about, but, as I understand it, Alabama Laundries & Linen is suing Bobby D. Grubbs, doing business as Seacove Seafood Restaurant and also another defendant called Restaurant Management, Inc., a corporation.
THE COURT: Right.
MR. MARTINSON: If we try the lawsuit and win it on behalf of Bobby D. Grubbs, then I wouldn’t expect to defend any more lawsuits on the same claim.
THE COURT: I am going to try the lawsuit that is before me, which is Boga--tin, d/b/a Alabama Laundries & Linen vs. Bobby D. Grubbs d/b/a Seacove Seafood Restaurant and Restaurant Management, Inc., on the matter of whether or not there is any money owed on an account. I believe it is, and also whether or not there are any attorneys’ fees due, .and any interest, or anything else due, and that’s what I am trying today.
MR. ROBERTS: The alter ego theory.
THE COURT: That is not an issue in this case.
MR. ROBERTS: Yes, sir, that’s my understanding, Judge.

After the non-jury trial, judgment was rendered by the court against Restaurant Management, Inc. for $1,121.43. It was further ordered “that the issues be found in favor of the defendant Bobby D. Grubbs individually and doing business as Seacove Seafood Restaurant.”

No appeal was taken in Case 1.

Case 2

Mr. Bogatin (plaintiff) brought the present action seeking to recover the primary sum of $1,121.43 from Bobby D. Grubbs (defendant). The complaint alleged that the defendant is Restaurant Management, Inc.’s major and dominating stockholder and officer, that Restaurant Management, Inc. was organized by the defendant as his alter ego for the purpose of operating Seacove Restaurant, that Restaurant Management, Inc. has never had any genuine or separate corporate existence, but was used and existed for the sole purpose of permitting the defendant to transact a portion of his individual business under a corporate guise. The complaint further stated:

On or before the 18th day of January, 1980, the plaintiff rented and delivered to the defendant, Bobby D. Grubbs, acting through his alter ego, Restaurant Management, Inc., certain towels and linen to be used in the restaurant known as Sea-cove Seafood Restaurant, and that by reason of said lease, the defendant, Bobby D. Grubbs, and the alter ego, Restaurant Management, Inc., became indebted to the plaintiff for a sum certain. On the 18th day of January, 1980, the plaintiff was awarded a judgment against the defendant, Restaurant Management, Inc., in the amount of One Thousand One Hundred Twenty One and 43/100 ($1,121.43) Dollars together with the costs of that action in Civil Action Number CV79-582B.

The plaintiff also claimed that the defendant had made certain false representations to the plaintiff concerning the proprietorship of Seacove Seafood Restaurant.

In addition to general denials, the defendant’s answer contended that Case 1 and the judgment entered therein was a complete bar to Case 2. The defendant also filed his motion for a summary judgment based upon the pleadings, his answer and the judgment entry in Case 1. In opposition to the motion for a summary judgment, the plaintiff offered the above quoted colloquy from the Case 1 trial together with an affidavit that no evidence was offered in Case 1 as to the plaintiff’s alter ego contention. The trial court entered a two-page learned judgment granting the defendant’s motion for a summary judgment and dismissed Case 2.

(1)

The plaintiff appealed and filed an excellent brief in this court. He first contends that the motion for a summary judgment should not have been granted because of the following exception to the res judicata rule as is stated in § 67 of The Restatement of the Law of Judgments:

Where in an action the court holds that the plaintiff cannot enforce a particular claim in that action on the ground that he can enforce it only in a separate action, the judgment does not preclude the plaintiff from enforcing the claim in another action, although in the second action it appears that the holding of the court in the first action was erroneous.

While the Alabama cases have not utilized language approaching that of the Restatement, similar results have been reached in ancient cases. Haas v. Taylor, 80 Ala. 459, 2 So. 633 (1887); Hoyt v. Murphy, 23 Ala. 456 (1853); Martin v. Chapman, 1 Ala. 278 (1840). However, it is not essential for us to determine whether the Restatement rule is the law of this state since such rule would have no application in the instant case. The trial court in Case 1 did not decide that the alter ego matter could be enforced only in a separate action. The plaintiff’s complaint did not raise the alter ego question as an issue in Case 1. In the quoted comments of the attorneys and of the court which occurred immediately before the trial, it apparently was the plaintiff who did not desire that the alter ego theory be then tried. The defendant expressly opposed more than one trial. The trial court, in stating the trial issues, substantially summarized the plaintiff’s contentions set forth in his Case 1 complaint. The judge’s statement was correct when he stated, “That is not an issue in this case.” We construe that as a determination that the alter ego theory was no issue since it was not pleaded. That was not a decision that the plaintiff could sue the defendant as the alter ego of the Restaurant Management, Inc. only in a separate action.

(2)

The plaintiff next contends that the causes of action were different between the two cases.

The late eminent scholar of the law, Justice Bloodworth, in Wheeler v. First Ala bama Bank of Birmingham, 364 So.2d 1190, 1199 (Ala.1978) succinctly summarized the definition of res judicata as follows:

The elements of res judicata are as follows: (1) prior judgment rendered by court of competent jurisdiction; (2) prior judgment rendered on the merits; (3) parties to both suits substantially identical; and (4) same cause of action present in both suits. Stevenson v. International Paper Co., 516 F.2d 103 (5th Cir. 1975). If these elements are present, then the former judgment is an absolute bar to any subsequent suit on the same cause of action, including any issue which was or could have been litigated in the prior action. McGruder v. B & L Construction Co., 331 So.2d 257 (Ala.1976).

This decision hinges upon whether the alter ego question could have been litigated in the prior action, for, if so, res judicata is a bar to the present action. Ozley v. Guthrie, 372 So.2d 860 (Ala.1979); McGruder v. B & L Construction Co., 331 So.2d 257 (Ala.1976). “It is of no importance that the plaintiff set up all of his rights upon which his cause of action could have been maintained; it is sufficient that it might have been litigated in the first suit. (Citations omitted).” Fife v. Pioneer Lumber Co., 237 Ala. 92, 185 So. 759 (1939). The plaintiff could have asserted the alter ego claim in Case 1 against this same defendant. Rule 18(a), ARCP. All that was required was an amendment of his complaint to such effect. Rule 15(a), ARCP. There is no doubt that the plaintiff’s alter ego contention against the defendant was subject to being litigated in Case 1 in view of our present liberal rule governing joinder of claims. The judgment entered in the first case, therefore, was res judicata and a bar to Case 2. The trial court correctly granted the defendant’s motion for a summary judgment.

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. His opinion is hereby adopted as that of the court.

AFFIRMED.

All the Judges concur.


text:
    Frank Roger DIGGS, Jr. v. CITY OF MOBILE.
    Civ. 2465.
    Court of Civil Appeals of Alabama.
    Jan. 14, 1981.
    Ellen V. Barial, Legal Services Corp. of Alabama, Mobile, for appellant.
    John L. Lawler of Howell, Johnston, Langford, Finkbohner & Lawler, Mobile, for appellee.
   EDWARD N. SCRUGGS, Retired Circuit Judge.

This is a workmen’s compensation case. Pending the trial in the circuit court, the plaintiff was paid compensation for approximately ten months. In substance, the trial court rendered its judgment which ascertained that such payments completely compensated the plaintiff for his temporary disability and denied further workmen’s compensation to him.

The plaintiff appeals and contends that the circuit court should have determined that the plaintiff suffered a permanent total disability, or, alternatively, that he was entitled to compensation for his temporary disability for a longer period of time.

The evidence conflicted. There is legal evidence in the record which is supportive of the findings of the trial court. We must, therefore, affirm the judgment of the circuit court. Lauderdale Christian Nursing Home v. Dean, Ala.Civ.App., 385 So.2d 1320 (1980) and cases cited therein.

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. His opinion is hereby adopted as that of the court.

AFFIRMED.

All the Judges concur.


author: BRADLEY, Judge.

text:
    Helen Veigl SCHWAIGER v. Frank Edward SCHWAIGER.
    Civ. 2471.
    Court of Civil Appeals of Alabama.
    Jan. 14, 1981.

      Hayden R. Battles, Cullman, for appellant.
    Ralph Bland of Bland & Bland, Cullman, for appellee.
   BRADLEY, Judge.

Helen V. Schwaiger and Frank E. Schwaiger were divorced by the Circuit Court of Cullman County on July 9, 1980 for incompatibility of temperament. The decree awarded the custody of the parties’ minor child to the wife, directed the husband to pay $150 per month child support, granted the wife possession and use of the jointly owned family residence but made both parties liable for maintenance and upkeep, placed title in the wife to property inherited from her mother, ordered an eighteen acre jointly owned parcel of property sold and the proceeds divided equally between the parties, gave the wife $19,000 in cash which she had inherited from her mother, awarded the wife $8,418.67 as alimony in gross, which sum represented approximately one-half of the proceeds of two joint savings accounts, awarded to the wife certain designated personal property, gave the husband $1,380.37 from a certificate of deposit which he had previously cashed and $5,170.17 from a joint savings account, awarded the husband certain enumerated personal property including several motor vehicles, permitted the husband to retain title to an undivided one-tenth interest in all realty and personalty owned by the estate of his deceased father, and required the husband to maintain in force medical and hospital insurance for the parties’ minor child.

The wife appeals from that part of the decree awarding her $8,418.67 from the parties’ savings accounts as alimony in gross on the grounds that the award is not only inadequate but is also not alimony in gross, and she also contends that the trial court erred in not awarding her periodic alimony.

The parties were married in 1952 and had three children, one of whom is a minor. The husband, a longtime stone mason, works now only parttime due to physical ailments. His earnings in 1978 and 1979 averaged about $7,000 a year. He suffers from a digestive problem known as “dumping syndrome” and from lung cancer. The wife is fifty-seven years old and is suffering from the effects of a stroke. She has only an eighth grade education and has not been employed outside the home since 1952.

In divorce cases a trial court has wide discretion in the division of the parties’ property and in awarding alimony and the exercise of that discretion will not be reversed except for plain and palpable abuse. Dennis v. Dennis, Ala.Civ.App., 383 So.2d 187 (1980).

In deciding what amount to award as alimony, the trial court may consider (1) the financial circumstances of both husband and wife; (2) their future prospects; (3) their standard of living during their marriage and their potential for maintaining or exceeding that standard after their divorce; (4) their ages and health; (5) the length of their marriage; (6) the sources of their common property; and (7) in appropriate circumstances, the conduct of each with reference to the cause of their divorce. Reynolds v. Reynolds, Ala.Civ.App., 376 So.2d 732 (1979); Anders v. Anders, Ala.Civ.App., 367 So.2d 481 (1979); Goodwin v. Goodwin, Ala.Civ.App., 364 So.2d 678 (1978). It should also be noted that a division of the divorcing parties’ property does not have to be equal, only equitable according to the facts and circumstances of the particular case. Thompson v. Thompson, Ala.Civ.App., 377 So.2d 141 (1979). After applying these well-known principles of law to the facts in the present case, we conclude that the trial court did not abuse its discretion in the division of the parties’ property nor did it abuse its discretion by failing to award to the wife periodic alimony.

We believe that the trial court’s failure to award periodic alimony could be premised on the very serious nature of the husband’s physical ailments, which could have the effect of greatly reducing his future earning capacity or eliminating it entirely. By this conclusion we do not mean to ignore the wife’s plight or her future needs; but, we do recognize the strong likelihood that the husband will be unable to respond to those needs in the future. Thus, under these circumstances we can find no fault with the trial court’s decision not to award periodic alimony.

The wife says, however, that the trial court erred in designating the $8,418.67 awarded to her from the parties’ joint savings accounts as alimony in gross. Her primary argument in support of this contention is that the award to her of one-half of a joint savings account gives her nothing more than what she already owns. As support for her argument, the wife relies on the case of Body v. Body, 47 Ala.App. 443, 256 So.2d 184 (1971). In the Body case the wife was awarded $12,000 from a jointly owned savings account containing $18,000. We said such award could not be considered as alimony in gross even if it had been so designated by the trial court because the wife already had vested title to one-half of the $18,000. Likewise, in the case at bar, we consider the award of the $8,418.67 from the parties’ joint accounts to be a property division rather than an award of alimony in gross. And, being a part of the property division, the savings accounts awards must be considered along with the other properties to determine whether there was an equitable division of the accounts between the husband and wife. After a careful review of the award made to the wife, we cannot say that it is plainly and palpably wrong.

The wife has requested an attorney’s fee be awarded to her for the services rendered by her attorney in this appeal and because of the circumstances of this particular case we conclude that the wife’s attorney should be compensated for his services in prosecuting this appeal. Thompson v. Thompson, Ala.Civ.App., 337 So.2d 1 (1976). We consider $350 to be a reasonable fee for the services performed and award that amount to the appellant.

ATTORNEY’S FEE AWARDED.

AFFIRMED.

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


author: HARRIS, Presiding Judge.

text:
    Gerald Alvin PRIDE v. STATE.
    8 Div. 206.
    Court of Criminal Appeals of Alabama.
    March 18, 1980.
    Rehearing Denied April 22, 1980.

      E. B. Haltom, Jr. and Donald H. Patterson of Haltom & Patterson, Florence, for appellant.
    Charles A. Graddick, Atty. Gen., Willis E. Isaac and Thomas R. Allison, Asst. Attys. Gen., for appellee.
   HARRIS, Presiding Judge.

Appellant was convicted of manslaughter in the first degree and the jury fixed his punishment at five years imprisonment in the penitentiary. Appellant was represented by counsel of his choice and at arraignment pleaded not guilty. After sentence was imposed he gave notice of appeal and trial counsel represents him on this appeal.

Omitting the formal parts, the indictment reads as follows:

“The Grand Jury of said County charge that before the finding of this indictment Gerald Alvin Pride, whose name is to the Grand Jury otherwise unknown, than as stated, unlawfully and intentionally but without malice, killed William Gene Jackson, by driving a motor vehicle in, upon, over or against the automobile in which William Gene Jackson was riding, against the peace and dignity of the State of Alabama.”

There was no motion to exclude the State’s evidence; there was no request for the affirmative charge, and no exceptions were reserved to the oral charge of the court. There was a motion for a new trial in which the sufficiency of the evidence was questioned as well as some adverse rulings during the trial.

It is not disputed that the automobile-truck collision occurred before daybreak on May 12, 1978, on a well travelled highway in Lauderdale County, Alabama. It is not disputed that appellant was the driver of a 1971 pickup truck that was involved in a head-on collision with a Ford automobile driven by the deceased, William Gene Jackson, at the time and place of the accident. It is not disputed that appellant was driving his truck on the wrong side of the highway at the time he ran into the Ford automobile knocking it off the highway and down a steep embankment. It is not disputed that the deceased died a few minutes after the accident and as the proximate result and consequences of the injuries he received in the truck-automobile collision.

There is a sharp conflict in the evidence as to whether appellant was under the influence of intoxicating beverages at the time of the head-on collision. Some of the witnesses presented by the State testified that appellant was highly intoxicated or drunk immediately after the accident. Witnesses produced by appellant testified that he was not intoxicated at the time of the accident and that they did not smell the odor of alcohol on appellant’s breath immediately after the accident.

It is not disputed that Lauderdale County was a dry county at the time of the fatal accident. It is not disputed that, on the afternoon preceding the accident, beer was served to the participants in a golf tournament during a fish fry which followed the tournament. The evidence is conflicting as to whether there was a keg or kegs of draft beer at the fish fry. One of the sponsors testified there were twenty cases of beer at the fish fry, while other witnesses were just as positive there was draft beer served during and after the fish fry.

Appellant admitted that he consumed six cans of beer during the afternoon and night prior to the accident the next morning around 4:20 a. m. After the fish fry a number of men, including appellant, went to the Lakeview Motel and played “tonk” for several hours. After 11:30 or 12 o’clock everyone left the motel except four men. They were appellant, James Paul Risner, Jack Morris and Bennett Wilson. Soon thereafter Risner and Morris went to bed and slept. Appellant and Wilson continued to play cards. There was some testimony that appellant left the room and returned with four cans of beer. Appellant denied this and steadfastly maintained that no beer was consumed in the motel room that night, except one can that he brought with him to the room.

According to the testimony Wilson woke Morris at 4:00 a. m. and requested that he drive him home. Wilson’s car was parked at the motel restaurant at the time but Morris took him home in Morris’ car. Appellant left about the same time in his truck. Twenty minutes later the accident occurred.

Anthony W. Terry, a former law enforcement officer with about ten years experience, was the first person to arrive at the accident scene. He discovered appellant sitting under the steering wheel of his truck. The hood to the truck had been knocked off by the impact and the door to the driver’s side had been smashed in. Terry opened the door on the passenger side and asked appellant if he was hurt and appellant said he did not think so. Terry asked him what happened and appellant replied, “Some S.O.B. hit him and kept going.” Terry had put appellant out of his truck and put him on the passenger side of his own truck. Terry noticed the grass on the shoulder of the road was mashed down and he went down the embankment and found the Ford automobile which was then occupied by the driver. He managed to feel the pulse on the occupant’s neck and knew he was alive. He went back to the highway to try to stop motorists to contact the police and get an ambulance. He finally stopped three boys in a pickup truck and they agreed to contact the police department and request an ambulance. Terry remained until the ambulance arrived and helped put the injured in the ambulance, Terry stated that appellant was highly intoxicated and asked him for a cigarette “because the officers might think he was drinking.” Terry did not find any intoxicating beverages at the scene of the accident.

Photographs of the scene of the accident and the wrecked vehicles were introduced into evidence without objection.

Roger Olive, a State Trooper, arrived at the scene as the ambulance was leaving to carry the injured persons to the hospital. He observed the pickup truck on the highway and the Ford automobile down in a ravine. The time was about 5:30 a. m., and he left the scene at about 7:00 a. m. He had investigated many automobile accidents during his tenure as a State Trooper and expressed the opinion that the truck was on the wrong side of the highway at the time of the collision. He went to the hospital between 8:00 and 8:30 that morning and saw appellant in the hallway just outside the x-ray room. Over objection he was asked if he got close enough to appellant to determine if he had been drinking and he stated, “My opinion was that he had been drinking.” Appellant moved to exclude the answer on the ground that the proper predicate had not been laid in that there was a time lag of several hours between the time of the accident and the time Trooper Olive saw appellant at the hospital. The objection was overruled. Appellant contends the trial court erred in overruling his motion to exclude. We do not agree.

In Montgomery v. State, 44 Ala.App. 129, 203 So.2d 695, the court stated:

“On the other hand, it is permissible to show by a late arriving witness that the defendant was drunk in his presence, provided the State also shows that the surrounding circumstances are such as to preclude the possibility of appellant drinking after the accident.”

In the instant case the State did not attempt to show that appellant was drunk by the testimony of Trooper Olive but only that he had been drinking. The testimony of witness Terry clearly shows that there was no alcoholic beverage of any kind in appellant’s truck or at the accident scene when he arrived and he was the first person to come on the scene after the collision. Terry remained at the scene until the ambulance transported appellant to the hospital. To infer that appellant could have had access to alcoholic beverages in Mr. Terry’s truck, in the ambulance en route to the hospital, in the hospital emergency room, or in the x-ray room, would require us to throw common sense to the wild winds. Appellant admitted he consumed six cans of beer prior to the accident. We hold Trooper Olive’s testimony was relevant and admissible; its weight and credibility were for the jury.

Appellant also contends that the prosecutor’s questions to appellant’s brother as to whether or not James or Jim Jackson had been arrested for driving while intoxicated after they left the fish fry constituted reversible error. The record reflects that the witness answered that he did not know. We agree with appellant that the questions posed by the prosecutor were improper and irrelevant to any issue in this case. However, the law is well settled that a negative answer to an improper question does not constitute reversible error. Stephens v. State, 250 Ala. 123, 33 So.2d 245; Leonard v. State, 36 Ala.App. 397, 58 So.2d 138; Hurst v. State, 54 Ala.App. 254, 307 So.2d 62.

Appellant’s next contention is that the trial court erred in overruling his objection and motion to exclude the testimony of Nurse Sue Sullivan on cross-examination on the ground that her answer was not responsive and was prejudicial. On direct examination Mrs. Sullivan stated that appellant was drunk when he arrived at the hospital.

From the record:

“Q. Tell us again, Mrs. Sullivan, what you base your testimony on that Mr. Pride was drunk on this occasion other than you say that you smelled an odor of alcohol when he first got out of the ambulance and that he stepped down a big step from the ambulance and seemed to stagger. What else?
“A. Well, for one thing, I think that most people after they had been in an accident like that and killed someone would at least ask about the other person if they were sober.”

The question asked the witness Sullivan was as broad as a question could possibly be framed and it cannot be gainsaid that the answer was responsive to the question as posed.

In Holifield v. State, Ala.Cr.App., 347 So.2d 559, this court in treating a similar matter said:

“We pretermit considering the prejudicial effect, if any, of the answer. We are merely calling attention (to the fact) that the answer was responsive to the question.”

Appellant asserts that the trial court committed reversible error in refusing to give written charge 37. This charge reads as follows:

“I charge you, ladies and gentlemen of the jury, that if you have a reasonable doubt of the defendant’s guilt growing out of the evidence or any part of it, you must return a verdict of not guilty.”

Refused charge no. 37 has been held to be a correct charge and the refusal to give such charge is reversible error. Tillman v. State, Ala.Cr.App., 360 So.2d 1074, and cases cited therein.

We have read and reread the court’s oral charge and find that the principle of law contained in refused charge 37 is nowhere to be found in the oral charge. See, King v. State, Ala., 356 So.2d 1220 (1978) and In re Dillard, Ala., 371 So.2d 947 (1979). The refusal to give this charge mandates a new trial.

REVERSED AND REMANDED.

All the Judges concur.


author: PER CURIAM. TORBERT, Chief Justice

text:
    Ex parte State of Alabama, ex rel. Attorney General. (Re: Gerald Alvin PRIDE v. STATE of Alabama).
    79-567.
    Supreme Court of Alabama.
    Jan. 23, 1981.
    Charles A. Graddick, Atty. Gen. and J. T. Simonetti, Jr., Asst. Atty. Gen., for appel-lee.
    E. B. Halt, Jr. and Donald H. Patterson of Haltom & Patterson, Florence, for appellant.
   PER CURIAM.

WRIT QUASHED AS IMPROVIDENTLY GRANTED.

FAULKNER, JONES, EMBRY and BEATTY, JJ., concur.

TORBERT, C. J., MADDOX and SHORES, JJ., dissent.

ALMON and ADAMS, JJ., not sitting.

TORBERT, Chief Justice

(dissenting).

I respectfully dissent from the quashing of the writ as improvidently granted.

Code 1975, § 12--16-13, states that:

The refusal of a charge, though a correct statement of the law, shall not be cause for a reversal on appeal if it appears that the same rule of law was substantially and fairly given to the jury in the court’s general charge or in charges given at the request of parties.

Id. Defendant requested at trial that the following charge be given to the jury:

I charge you, ladies and gentlemen of the jury, that if you have a reasonable doubt of the defendant’s guilt growing out of the evidence or any part of it, you must return a verdict of not guilty. [Emphasis supplied.]

This Court held in King v. State, 356 So.2d 1220 (Ala.1978), that the refusal to give a requested jury charge substantially identical to the one involved here was not reversible error. In King, the rule of law contained in the refused charge was found to have been given to the jury in the court’s charge, /. e.:

[ A] reasonable doubt which would justify an acquittal is a “reasonably substantial doubt arising from the evidence and remaining after a careful consideration of all of the testimony”; that if “after comparing and considering all of the evidence in the case your minds are left in such a condition that you cannot say that you have an abiding conviction to a moral certainty of the Defendant’s guilt then you are not convinced beyond a reasonable doubt and it would be your duty to find the Defendant not guilty”; and further that the “jury must be satisfied with any other evidence tending to prove the Defendant’s guilty connection with the charged felony beyond a reasonable doubt and to a moral certainty.”

356 So.2d at 1222.

Dillard v. State, 371 So.2d 947 (Ala.1979), also dealt with the refusal of a charge very similar to the one requested in the case before us. This Court again held that the instruction given by the judge was a substantial statement of the rule of law contained in the charge refused. The charge given by the trial judge was as follows:

If after considering all the evidence in the case, you have an abiding conviction of the truth of the charge, then you are convinced beyond a reasonable doubt and it would be your duty to convict the defendant. The reasonable doubt which entitles an accused to an acquittal is not a mere fanciful, vague, conjectural, or speculative doubt, but a reasonably substantial doubt arising from the evidence and remaining after a careful consideration of the testimony such as reasonable, fair-minded and conscientious men and women would entertain under all of the circumstances.
If after comparing and considering all of the evidence in the case your minds are left with such a condition that you cannot say you have an abiding conviction to a moral certainty of the defendant’s guilt, then you are not convinced beyond a reasonable doubt and the defendant would be entitled to an acquittal.

371 So.2d at 947-48.

In the case before us, the trial judge stated in the portion of the jury charge pertinent to this action that:

A reasonable doubt does not mean a mere possible doubt or any imaginary doubt or any speculative kind of doubt or any fanciful doubt and a moral certainty does not mean an absolute, positive or unqualified certainty.... [A1 reasonable doubt in this case requiring an acquittal is not a vague or speculative doubt, but it must be a substantial doubt, a doubt arising from the evidence or it may arise from the lack of sufficiently satisfying evidence. It must be a doubt that reasonable and fairminded and honest people would entertain under all the facts and circumstances in this case.. . . You must be convinced beyond a reasonable doubt and to a moral certainty of this Defendant’s guilt and the evidence in the case must be clear and conclusive and there must be no reasonable theory upon which this Defendant’s innocence can be maintained.

The Court of Criminal Appeals, although it referred to both King and Dillard in its opinion, see, Pride v. State, 392 So.2d 1215 (Ala.Cr.App.1980), failed to distinguish them from the case before us. I fail to see where the charge given here falls short of those given in King and Dillard. Therefore, I dissent.

MADDOX and SHORES, JJ., concur.