author: SUGG, Justice, for the Court:

text:
    GULF GUARANTY LIFE INSURANCE CO. v. Olivette KELLEY, Individually and as Executrix of Estate of John R. Kelley, Deceased.
    No. 52005.
    Supreme Court of Mississippi.
    Oct. 29, 1980.
    Rehearing Denied Nov. 12, 1980.
    Opinion on Motion to Retax Costs Jan. 7, 1981.
    Fred Krutz, III, W. Scott Welch, III, Luther T. Munford, Butler, Snow, O’Mara, Stevens & Cannada, Jackson, for appellant.
    Ransom P. Jones, III, F. Gerald Maples, Jones & Maples, Pascagoula, for appellee.
   SUGG, Justice, for the Court:

Mrs. Olivette Kelley, individually and as Executrix of the Estate of John R. Kelley, Deceased, filed suit in the Circuit Court of George County against the defendant, Gulf Guaranty Life Insurance Company. The trial court instructed the jury to find for plaintiff actual damages in the amount of $3,926.88, and submitted the question of punitive damages to the jury. The jury awarded $35,000 punitive damages. Defendant appealed from the judgment rendered against it for $38,926.88.

Two questions are presented on this appeal. (1) Was plaintiff entitled to a peremptory instruction on the issue of actual damages? (2) Was the defendant entitled to a peremptory instruction on the issue of punitive damages?'

I

FACTS

There is no substantial dispute as to the material facts of this case. On June 28, 1975 John R. Kelley purchased an automobile and financed the purchase by a loan in the amount of $3,926.88 from the First National Bank of Lucedale. As additional security for the loan, and as part of the transaction, a certificate of credit life insurance, naming the First National Bank of Lucedale as beneficiary, was issued by defendant on Kelley’s life. For a separate premium, health and accident insurance was also provided. The certificate of credit life insurance issued to Kelley provided, among other things, the following:

Gulf Guaranty Life Insurance Company hereby certifies that under and subject to the terms and conditions of this certificate and of the master group credit life and/or accident and health insurance policy issued to the creditor named herein, the insured debtor, is insured .... No coverage shall exist whether indicated or not which is not expressly granted under the master policy issued to the creditor.

The master policy issued to the creditor contained the following provision:

18. The company may, within ninety (90) days from date of issue of a certificate to a borrower .. . cancel the insurance on the life of such borrower five (5) days after written notice has been mailed to the creditor together with the company’s check for the unearned portion of the premium actually paid therefor.

It was stipulated that Kelley was examined by his personal physician on June 24, 1975 and was found to be in good health. This examination was not related to the issuance of the credit life certificate in this case, but the certificate was issued without requiring a physical examination of the insured, Kelley.

On July 1, 1975, while the policy was in force, Kelley suffered a heart attack and was hospitalized. Defendant learned of this on July 18,1975. No one knew or could know that the heart attack would prove fatal. Defendant, acting under the provisions of the master policy, canceled the policy and notified the bank which was the named beneficiary by mail, and refunded the unearned premium. Kelley remained in the hospital as a result of his heart condition and died on July 24, 1975. Following some correspondence between Mrs. Kelley’s attorney and the defendant, the present suit was filed.

The provisions of the policy in question were approved by the Mississippi Insurance Commission as required by section 83-7-17 Mississippi Code Annotated (1972).

II

WAS PLAINTIFF ENTITLED TO A PEREMPTORY INSTRUCTION ON THE ISSUE OF ACTUAL DAMAGES?

Plaintiff takes the position that the master policy was a “secret policy” and argues that the provisions under which defendant retained the right to cancel at its election were not binding on Kelley.

Plaintiff relies on Seymore v. Greater Mississippi Life Insurance Company, 362 So.2d 611 (Miss. 1978) in support of her contention that the master policy in this case was a “secret policy.” Seymore was a case in which the authority of the insurer’s agent was limited as to the amount of insurance the agent was permitted to write. Notwithstanding the limitation, the agent issued the policy in an amount which exceeded his authority. The insurance company did not plead as an affirmative defense that the master policy limited the agent’s authority; consequently, we held the trial court erred when it denied recovery because the policy exceeded the agent’s authority as to amount.

The use of master policies, in cases of credit life insurance, is neither new nor unusual but is a procedure commonly used. In such cases the insured is given a certificate, as Kelley was in this case, referring him to the master policy for the terms and conditions of the insurance contract. The insured has the right to examine the master policy if he should desire to do so. He may not neglect or purposely omit acquainting himself with the terms and conditions of the insurance policy and then complain of his ignorance of them. We reject the “secret policy” argument as untenable.

Defendant argues it had the absolute right under the terms of its master policy to cancel the certificate of insurance issued to Kelley within 90 days from the date of issue. Ordinarily, this defense would be upheld; however, in this case the onset of Kelley’s fatal illness occurred after the policy was in effect and continued without remission until his death. Considerations of public policy persuade us that, exercise by the insurer of its right to cancel should not be permitted after the onset of a fatal illness and death therefrom, upon the ground of estoppel. In Volume 3A of Appleman’s Insurance Law and Practice, ¶ 1813, the author states:

And where the company has accepted the premium on a policy and the insured has relied on its protection, the company is estopped to cancel the policy after the insured has reached such a physical condition that he cannot obtain desirable insurance on his life in any reputable company. [Mutual Benefit Life Ins. Co. v. Robison, C.A. Iowa 1893, 54 F. 580, 598].

We hold that, on the grounds of public policy, defendant was estopped from canceling the policy after the onset of Kelley’s fatal illness. In so holding, we are not unmindful of the constitutional protection of the obligation of contracts afforded by Article 1 Section 10 of the United States Constitution. Allowing defendant to cancel the policy after Kelley became uninsurable would be unconscionable because Kelley had then reached such a physical condition that he was unable to obtain desirable insurance in any reputable company before his death.

We conclude that the result reached by the trial judge, upon undisputed evidence, directing a verdict for plaintiff for the amount necessary to pay the balance of the loan, as actual damages, was correct and will be affirmed.

Ill

WAS THE DEFENDANT ENTITLED TO A PEREMPTORY INSTRUCTION ON THE ISSUE OF PUNITIVE DAMAGES?

Punitive damages are not recoverable for breach of contract unless such breach is attended by intentional wrong, insult, abuse, or such gross negligence that amounts to an independent tort. Aetna Casualty and Surety Company v. Steele, 373 So.2d 797 (Miss. 1979); Bellefonte Insurance Company v. Griffin, 358 So.2d 387 (Miss. 1978); New Hampshire Insurance Company v. Smith, 357 So.2d 119 (Miss. 1978); Standard Life Insurance Company of Indiana v. Veal, 354 So.2d 239 (Miss. 1977); Progressive Casualty Insurance Company v. Keyes, 317 So.2d 396 (Miss. 1975).

In Veal, supra, we affirmed an award for punitive damages for failing to pay a legitimate claim following the death of an insured, but held that if an insurance company had a legitimate or arguable reason for failing to pay a claim, punitive damages would not lie.

In this case defendant denied liability on the ground that it had cancelled the certificate issued Kelley before his death and that it had the absolute right to cancel the certificate under the terms of its master policy. Our holding in this case under Part II that defendant was estopped from asserting the cancellation provision of its master policy is the first time this Court has addressed the question.

Defendant had the right to interpose its defense, and although we have decided defendant was liable on its policy, we conclude there was an arguable reason for failing to pay the claim; therefore, the question of punitive damages should not have been submitted to the jury. The trial court should have granted a peremptory instruction for the defendant on the question of punitive damages.

For the reasons stated, we affirm the judgment of the trial court awarding actual damages in the amount of $3,926.88, and reverse on the question of punitive damages, holding that the action of defendant was not attended by an intentional wrong, insult, abuse, or such gross negligence that it amounted to an independent tort.

AFFIRMED IN PART, REVERSED IN PART AND RENDERED.

PATTERSON, C. J., ROBERTSON, P. J., and WALKER, BROOM, LEE, BOWLING and COFER, JJ., concur.

SMITH, P. J., takes no part.


source: Caselaw Access Project

author: PATTERSON, Chief Justice:

license: Public Domain

text:
    Dependents of Carroll Boyd STAFFORD, Deceased, v. U. S. CATTLE CORPORATION, Employer, and United States Fidelity & Guaranty Company, Carrier.
    No. 52137.
    Supreme Court of Mississippi.
    Oct. 29, 1980.

      Thomas D. Kirschten, Carrollton, Webb Franklin, Greenwood, for appellant.
    R. C. McBee, McBee & Dulin, Greenwood, for appellee.
    Before PATTERSON, C. J., and BROOM and LEE, JJ.
   PATTERSON, Chief Justice:

This appeal concerns a claim for double workmen’s compensation benefits by reason of the violation of the Mississippi Child Labor Law by an employer having workmen’s compensation coverage. Workmen’s compensation benefits, including funeral expenses, were awarded by the administrative law judge from which there is no appeal. It is undisputed that the decedent was a minor at the time of his death and was working in violation of the Mississippi Child Labor Law, if he was not engaged in farming activities at the time of his death.

Carroll Boyd Stafford, the decedent, was born on October 9, 1959, and died September 17, 1976, at the age of sixteen. He was an employee of U. S. Cattle Corporation headquartered in Vaiden, Mississippi, such corporation being a subsidiary of U. S. Sugar Corporation. Stafford’s employment required him to work between ten and twelve hours a day, five days a week, and five hours on Saturdays, in violation of the Mississippi Child Labor Law.

At the time of his death Stafford had entered one of three harvest store silos operated by U. S. Cattle Corporation. These silos were designed and used for the conversion into cattle feed, under controlled conditions, of grass, chopped corn and grain, generally produced and harvested on the property of U. S. Cattle Corporation and-for its storage. The feed was used in finishing the corporation’s cattle for the market. Stafford’s purpose in entering the anaerobic environment within the silo was to level the shelled corn which had been blown into the silo the previous day. Unfortunately, he died of asphyxiation.

The administrative law judge found U. S. Cattle Corporation, employer and appellee, to be an agricultural enterprise within the meaning and intent of the labor laws of the state and the Workmen’s Compensation Act and that the decedent was engaged in agricultural endeavors at the time of his death. He found that U. S. Cattle Corporation was not a manufacturing establishment under the labor laws of the state. These determinations, adverse to the dependents of Stafford, appellants, were appealed to the full commission where it was affirmed by two members of the commission, with a dissenting. opinion by the chairman. A further appeal was taken to the Circuit Court of the Second Judicial District of Carroll County wherein it was again affirmed leading to this appeal.

The issues to be determined are (1) whether U. S. Cattle Corporation was operating a manufacturing establishment within the meaning of Mississippi Code Annotated section 71-1-17 (1972) at the place and time of Stafford’s death; (2) whether Stafford was dually employed in both an exempted and a non-exempted work activity, and whether the work activity undertaken at the time of the accidental death was an agricultural or manufacturing endeavor; and (3) whether the appellants are entitled to double workmen’s compensation benefits under the mandate that the Workmen’s Compensation Law is to be liberally interpreted in favor of the claimant, giving consideration to the purpose of the Mississippi Child Labor Law.

Some detail is necessary to our conclusion, not an easy one, that U. S. Cattle Corporation’s activities at the cogent time were not those of a manufacturing establishment. U. S. Cattle Corporation is without doubt a large commercial concern engaged initially with tillage or cultivation of the soil and ending largely with the sale of finished or semi-finished cattle for the market. Its operation is conducted in Carroll, Montgomery and Grenada Counties and consists of approximately 22,800 acres of which approximately 8,900 are situated in Carroll County with approximately 5,800 acres being in one contiguous tract. The silos of the appellee are upon the last tract and the activities of Stafford and the other employees are largely confined to it although similar activities are conducted on the non-contiguous premises which also have conversion and storage structures. Approximately 1100 acres of the 5800-acre East Vaiden tract are cultivated in corn with the remaining being in pasture. A portion of the corn is cut for silage; the remainder is combined as shelled corn. The silage and shelled corn, either singly or in combination and sometimes supplemented with molasses from the parent U. S. Sugar Corporation, are fed to the cattle to finish them for market.

The silos are used for the fermentation of the raw product into silage and for storage until the silage is mechanically moved into the feed troughs for consumption. They are also used for the storage of shelled corn and its moistening with water, if necessary, for greater palatability until it is also moved by mechanical means to the feed troughs.

At the time Stafford met his death, no water was being added to the corn because it was harvested at a sufficient moisture level so as not to require added water. Stafford’s primary duties were agricultural in nature and he was engaged in the task of leveling the corn in the silo at the time he was asphyxiated. U. S. Cattle Corporation^ business was the feeding and raising of cattle to sell for market and the related agricultural endeavor of growing crops for feed. It was a necessary part of the agricultural operation to maintain a storage facility for the cattle feed.

Concerning appellants’ first assignment of error, it is our opinion that U. S. Cattle Corporation was not a manufacturing establishment within the meaning of Mississippi Code Annotated section 71-1-17 (1972), because the harvested grain was not converted from a raw product into a substantially different substance or material. After being stored in the silo, the corn was still in a raw and natural state which had not undergone any manufacturing process to transform it into another product for sale and distribution. We held in Lopanic v. Berkeley Cooperative Gin Co., 191 So.2d 108 (Miss.1966), a cotton gin to be a manufacturing establishment not exempt from the Child Labor Laws and that a seventeen-year-old employee who worked in excess of the statutory hours was entitled to double compensation benefits for his injury while performing his job. We also stated:

In considering what constitutes a manufacture or manufacturing, . . . generally there are three main or essential elements: (1) An original substance or material, frequently referred to as raw material. (2) A process whereby the original material is changed or transformed. (3) An article or substance which, by reason of being subjected to the processing, is to some extent different from the original substance or material. (191 So.2d at 112-113)

An application of these three elements leads us to conclude that the corn in the silo where Stafford was asphyxiated was not significantly different from the original raw material so as to be categorized as a manufactured product the result of a manufacturing process. This was not a grain elevator business where grain is converted from its raw state into an improved form by elevating, drying, cleaning and mixing processes; nor was it a grain business used for buying, selling, storing, cleaning, sorting, shelling, and mixing grain, improving its grades, thereby converting it into new and improved or substantially different forms. See Jeffries v. Farmers' Union Coop Mercantile & Elevator Co., 102 Kan. 811, 176 P. 631 (1918); Buchanan v. Blair, 90 Kan. 420, 133 P. 709 (1913), as cited with approval in Lopanic, supra, at 113. This was a farm owned and run by U. S. Cattle Corporation for feeding and raising cattle. This grain was not silage although its ultimate use was to supplement the livestock feed.

Appellant contends, however, that even though Stafford was primarily a farm laborer, his employment was dual in nature and at the time of his death he was engaged in a manufacturing pursuit; but this contention is without merit for, in our opinion, Stafford was engaged in an agricultural pursuit at the time he died. Labor in excepted employment, i. e., farm labor, “includes all activities incidental to the operation.” Dunn, Mississippi Workmen’s Compensation, § 4 (2d Ed. 1967). Stafford’s task of leveling the corn in the silo was such an incidental activity. Agriculture implies “tillage or cultivation of the soil, under natural conditions, with large fields and appropriate farm buildings.... It also includes the rearing, feeding, and management of livestock.” Larson, 1C Workmen’s Compensation Law, § 53.31 (1980). We think the nature of Stafford’s employment was agricultural; and leveling the corn was merely incidental to it, not rising to the level of dual employment.

Since U. S. Cattle Corporation is not a manufacturing establishment but an exempt agricultural concern and Stafford was performing farm duties at the time of his death, we hold that double compensation benefits under Mississippi Code Annotated section 71-3-107 (1972) are not recoverable. This we believe to be the'proper construction of the Act even though ambiguities are generally construed in favor of the claimant. Dunn, supra, states:

Generally, it is only where ambiguity appears that the Act is susceptible to construction and in such instances the construction is usually in favor of the allowance of compensation. In rare instances, the court may and has gone beyond the letter of the law where legislative oversight was apparent and the intent was clear from the Act as a whole. The liberal view has been applied in a variety of instances, . .. but an exception to the rule of liberality is found in cases involving claims for penalties. Such provisions are strictly construed. All presumptions are against the imposition of penalties and all doubts are to be resolved in favor of the defendant. Id. at § 32 at pp. 35-36.

Since double benefits are a form of penalty, we strictly construe the statutory provision and resolve any doubts in favor of U. S. Cattle Corporation. For these reasons, we affirm.

AFFIRMED.

SMITH and ROBERTSON, P. JJ., and SUGG, WALKER, BROOM, LEE, BOWLING and COFER, JJ., concur.


author: PER CURIAM.

text:
    John B. AMES et al. v. Mary Jane Gantt PARDUE, etc. CENTRAL BANK OF BIRMINGHAM v. Mary Jane Gantt PARDUE et al.
    79-169, 79-215.
    Supreme Court of Alabama.
    Sept. 12, 1980.
    Rehearing Denied Oct. 24, 1980.

      William M. Acker, Jr. of Dominick, Fletcher, Yeilding, Acker, Wood & Lloyd, Birmingham, and William T. Fade of Morris & Faile, Selma, for appellant, John B. Ames.
    Marshall Timberlake of Balch, Bingham, Baker, Hawthorne, Williams & Ward, Birmingham, and W. McLean Pitts of Pitts, Pitts & Thompson, Selma, and D. Paul Jones, Birmingham, for appellant, Central Bank of Birmingham.
    John W. Kelly, III and Allen B. Edwards, Jr., of Sikes, Kelly, Edwards & Bryant, Selma, for appellees.
   PER CURIAM.

This is an appeal from a judgment of the trial court which set aside a mortgage foreclosure sale and restored the plaintiff’s equity of redemption on the grounds that the land was offered for sale en masse rather than in parcels. The plaintiff-appellee, Mary Jane Gantt Pardue, is the mortgagor of the property concerned, and the appellants-defendants, Central Bank of Birmingham and John B. Ames, are respectively the mortgagee and the purchaser of the property at the foreclosure sale. We reverse and remand for reinstatement of the foreclosure sale.

Beginning in 1951, plaintiff J. Bruce Par-due, a Selma banker, and his wife, Mary Jane Gantt Pardue, purchased land in Dallas and Perry Counties near Selma, Alabama. The Pardues gradually added to the property until, by 1970, they owned 1,557 acres in six contiguous parcels. Bruce Par-due retired in 1969 after forty-one years as a banker, during which time he had been president of one bank and chairman of the board of another. He was very experienced in mortgage banking. He died on November 9,1978, while this suit was pending, and Mary Jane Gantt Pardue was substituted as plaintiff.

In 1958, the Pardues built a house, barn, and corral on tract one of the property. They used the whole property for grass, hay, and cattle farming. In January, 1973, in order to consolidate $409,000 in loans from Central Bank, the Pardues executed a promissory note in the amount of $690,000, secured by a real estate mortgage on their farm property. The bank loaned Pardue an additional $281,000 to subdivide a section of tract two. Only limited work was done in development and, by 1977, only two subdivision lots had been sold.

The mortgage legally described the Par-due farm in six separate metes and bounds descriptions and contained the power of sale in the mortgagee, Central Bank, with discretion “to sell said property ... in lots or parcels or en masse as mortgagee’s agents, auctioneer or assigns deem best.” When Pardue was unable to make payment within the prescribed period, the bank extended the loan for two years. Pardue paid the interest until December, 1976, when the Pardues filed a bill in the Jefferson County Circuit Court to delay foreclosure.

The Jefferson County Circuit Court through Judge William C. Barber gave them a 90-day moratorium on foreclosure. Pardue was unable to retire the note in 90 days. On April 12, 1977, Judge Barber entered a decree of foreclosure which “divested [plaintiffs] of all interests in and rights of possession in and to the properties described in said mortgage.” The Pardues were ordered to vacate the property. They did not do so within the prescribed period.

The bank held a foreclosure sale on June 14, 1977, offering the property for sale en masse. Pardue did not attend or send a representative to the auction. Ames was the sole bidder at the auction, offering a bid of $675,000. Ames had been told by one of the bank’s officers that such amount was the outstanding mortgage balance. The actual balance was $710,395. Plaintiff Par-due commenced this action on September 8, 1977, in the Dallas County Circuit Court. Plaintiff alleged ultimately that defendant Central Bank had breached a trust imposed on it as mortgagee to dispose of the plaintiff’s property in fairness and good faith by failing to offer the property for sale in separate parcels as described in the mortgage, by intending to bid in the property at $600,000 and by entering into a collusive bid with defendant Ames to defraud the plaintiff of his property.

On April 10, 1978, Pardue also filed a bill for declaratory judgment seeking an interpretation of Judge Barber’s decree of foreclosure, alleging that it specifically ordered that their right to redeem the land was not affected.

Defendant Central Bank filed an answer of general denial and alleged the defenses of estoppel, waiver, laches, and res judicata, and it affirmatively alleged the bank’s right to exercise its discretion under the language of the power of sale. Defendant Ames filed an answer of general denial and filed a cross-claim against the bank for the purchase price and the cost of his improvements and repairs in the event that the foreclosure sale should be set aside.

During the litigation, Mary Jane Gantt Pardue entered into a purchase contract with Dr. and Mrs. Robert Lamb to sell 1,415 acres (less the house and 156 acres) to them for $1,103,700, conditioned on her ability to “convey free and clear title.”

The action was tried in December, 1978, and thereafter, the trial court entered a final judgment setting aside the foreclosure sale and restored the plaintiff’s equity of redemption. The court found that the various tracts had been devoted to separate and distinct uses, residential, subdivision development and timber and farming. It held that the sale should have been by parcel rather than en masse, that sale en masse had injured the plaintiff, and that defendant Central Bank had breached its duty of good faith to the plaintiff by inaccurately representing the mortgage balance to Ames, and by its intent to bid the property in at $600,000. The court held that the defenses of waiver, estoppel, laches, and res judicata were inapplicable and that the language of the power of sale “could not be relied on to nullify the mortgagor’s duty.”

On appeal, the bank contends that (1) the lower court’s findings that the Pardue farm was devoted to separate and distinct uses and that there was a breach of good faith by the bank were erroneous; (2) a foreclosure sale should not be set aside unless the price is so inadequate as to “shock the conscience of the court”; (3) absent fraud or bad faith, a foreclosure sale will not be set aside simply because the property was sold en masse where susceptible to division, particularly where the mortgage grants the mortgagee the right to sell en masse; and (4) Pardue, by his acquiescence in the foreclosure sale, is estopped from denying its validity.

The dispositive issue in this case is whether a mortgagor, by a mortgage provision, may contractually waive his right to compel the mortgagee to offer the mortgaged property first by parcel rather than en masse as equity might dictate. Although this Court has considered the question of en masse versus by parcel foreclosure sales, the particular issue posed by this case has not heretofore been before the Court. It has been considered by the courts of other states. We hold that the trial court erred in holding that the mortgage language could “not be relied on to nullify the mortgagee’s duty as required by law as prescribed by the supreme court of this state” and that the foreclosure sale should be reinstated. In the absence of bad faith or fraud on the part of defendant Central Bank, Pardue as a sophisticated mortgagor was capable of waiving and did waive his right to demand a parcel by parcel foreclosure sale by giving Central Bank discretion over the issue.

It is the rule in Alabama that a mortgagee is responsible to the mortgagor for the fairness of the manner of the foreclosure sale. If the property concerned consists of separate parcels which are dedicated to separate and distinct uses, the parcels should be offered separately first in order to obtain the highest possible price for the property and to give the mortgagor a chance to retain some of his property. Dozier v. Farrior, 187 Ala. 181, 65 So. 364 (1914).

This rule applies if the property covered by the mortgage is separated into distinct parcels either by natural boundaries, by the way in which it is platted, or by the fact that the parcels are not contiguous. Kelly v. Carmichael, 217 Ala. 534, 117 So. 67 (1928).

A foreclosure sale held under a power of sale may be set aside under this rule. Dozier v. Farrior, supra. A power of sale is more than a mere clause in a legal contract and equity regards a mortgagee holding a power of sale as a quasi trustee with a duty of fairness and good faith to the mortgagor in its execution. Bank of New Brockton v. Dunnavant, 204 Ala. 636, 87 So. 105 (1920). To void the foreclosure sale, the mortgagor must show that the trust imposed on the mortgagee has been abused and that he has been injured by the sale. Rudisill v. Buckner, 244 Ala. 653, 656, 15 So.2d 333 (1943).

A mortgagee’s equitable duty to offer first by parcels cannot be abrogated by a general provision of the power of sale giving the mortgagee discretion to hold a sale “when, as and where it shall seem best to them.” Bank of New Brockton v. Dunnavant, supra, 204 Ala. at 639, 87 So. at 106. However, if, as is the case here, a specific mode of discretion has been prescribed, and the parties to the mortgage are equal in sophistication and bargaining power, then a mortgagee’s action taken pursuant to the discretion should be permitted to stand. In such circumstances, allowing discretion to the mortgagee would not be to “nullify a duty enjoined by law as essential to the ends of justice.” Id.

Pardue was a sophisticated banker and he conferred discretion over this matter to Central Bank in arm’s-length bargaining. The rule as to parcel by parcel foreclosure sales is intended to secure the property rights of individuals. In the absence of bad faith, fraud, or other abuse of its discretion by the mortgagee, there is no public policy which would be defeated by permitting sophisticated parties to waive this rule. We find no indication of fraud or bad faith by Central Bank.

The bank’s intent to bid in the property at a figure lower than the full mortgage price does not constitute bad faith. By this action, the bank could have been establishing a floor on what it considered a fair price range, to protect itself and the mortgagor. We cannot say that this must be construed as bad faith.

The bank’s action in misquoting the mortgage balance does not per se constitute fraud. To establish a cause of action in tort for fraud, the plaintiff must prove that the defendant knowingly made a false representation of a material, existing fact on which the plaintiff relied to his detriment. Roberts v. Carroll, 377 So.2d 944 (Ala.1979). Under Code of Ala., § 6-5-101, the misrepresentation may be “by mistake and innocently” but it must be acted on by the opposite party to his detriment. Bynum v. Rucker, 235 Ala. 353, 179 So. 241 (1938).

It is fundamental that the rep-resentee who relied on the defendant’s misstatement and the plaintiff who was injured must be one and the same. The rep-resentee must have relied on and have been deceived and damaged by the statement. Ansley v. Bank of Piedmont, 113 Ala. 467, 21 So. 59 (1896). Recovery cannot be had unless plaintiff relied on the fraudulent representations of defendant. Jordan v. Pickett, 78 Ala. 331 (1884). In this case, the representee, Ames, relied on the bank’s statement but has not been injured as a result, and plaintiff Pardue did not rely on the misrepresentation. Plaintiff has failed to prove fraud by the bank which would support an action for misrepresentation and defeat the legitimacy of the foreclosure sale.

It is significant that neither did Pardue at any time prior to the sale request that the bank sell the land by parcel, nor did he request, in his complaint to delay foreclosure, that in the eventuality that he was unable to retire the loan the bank be required to sell the land in parcels. Pardue neither attended the foreclosure sale nor sent a representative to object to the sale en masse, although he knew .of the time of the sale and of the bank’s discretion in the manner of sale.

In the absence of a mortgage provision granting discretion to the mortgagee as to the manner of sale, the mortgagor is not required to request, prior to the sale, that the property be sold lot by lot. J. H. Morris, Inc. v. Indian Hills, Inc., 282 Ala. 443, 212 So.2d 831 (1968). However, if the mortgagor has bargained away his rights, all that is left to him is a right to request that the land be sold parcel by parcel. If the mortgagor has requested that the mortgagee sell the land parcel by parcel, the mortgagee should, in a reasonable exercise of discretion, carefully weigh the alternative of offering the land first in parcels. Equally, Pardue’s waiver in the mortgage is substantiated by his failure to object at the foreclosure sale. Were there no mortgage provision giving discretion to the bank, this failure to object would act as an estoppel to Pardue to object to the manner of sale. In the absence of a request or objection, full discretion remained in the mortgagee.

The judgment appealed from is reversed and the cause is remanded to the trial court with instructions to reinstate the foreclosure sale.

REVERSED AND REMANDED WITH INSTRUCTIONS.

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

      . McHugh v. Church, 583 P.2d 210 (Alaska 1978); Brown v. British American Mortgage Co., 86 Miss. 388, 38 So. 312 (1905); Baker v. Connecticut General Life Insurance Co., 196 Miss. 701, 18 So.2d 438 (1944); Bellah v. First National Bank of Hereford, 474 S.W.2d 785 (Tex.1971); Pacific State Savings and Loan Co. v. O’Neill, 7 Cal.2d 596, 61 P.2d 1160 (1936); Humboldt Savings Bank v. McCleverty, 161 Cal. 285, 119 P. 82 (1911).


author: SHORES, Justice.

text:
    Lorine BAKER v. T. L. CHASTAIN.
    79-468.
    Supreme Court of Alabama.
    Oct. 31, 1980.

      Richard Bounds of Cunningham, Bounds, Byrd, Yance & Crowder, Mobile, for appellant.
    Charles Stakely, Jr. of Rushton, Stakely, Johnston & Garrett, Montgomery, and Broox G. Garrett of Garrett & Thompson, Brewton, for appellees.
   SHORES, Justice.

This is an appeal by the plaintiff, Baker, from a directed verdict in favor of the defendant, Dr. Chastain, in a medical malpractice action. She argues that the trial judge erred in granting defendant’s motion for a directed verdict because the plaintiff’s evidence and the reasonable inferences to be drawn therefrom, when viewed in a light most favorable to her, presented a scintilla of evidence of negligence on defendant’s part and, therefore, should have been submitted to the jury.

In February, 1978, Lorine Baker had a sore shoulder. Otherwise she was in good health and had no problems with her chest. She went to Dr. Chastain, who gave her a physical examination and found her to be normal except for her shoulder. He gave her an injection for bursitis in her back. He used a needle that was an inch to an inch and one-half long. He estimated thickness of the muscle wall at the point of injection to be an inch and one-half. Inside the muscle wall at that point is the pleura, the outer lining of the lung. Dr. Whittle, another doctor who treated Mrs. Baker, testified that, as Mrs. Baker was very thin, her chest wall would be three-quarters of an inch to an inch thick.

Mrs. Baker testified that at the moment of the injection she tasted medication in her mouth, and a hematoma developed on her shoulder. Within one hour of the injection, she developed severe chest pains. Mrs. Baker was unable to reach Dr. Chastain that night. The next day, she saw Dr. Whittle. He heard no breathing sounds from her right side. He diagnosed that she had suffered a pneumothorax, which is a state in which air or other gas is present in the pleural cavity and which occurs spontaneously as a result of disease or injury to the lung or puncture of the chest wall. Both Dr. Chastain and Dr. Whittle testified that pneumothorax is a complication of this injection procedure.

Mrs. Baker was hospitalized and was operated on to draw the air out of the pleural cavity,' allowing the lung to reinflate. She was discharged but had recurrences of the pneumothorax and had to be hospitalized two more times within the following four months. In November, 1978, Mrs. Baker filed a medical malpractice suit against Dr. Chastain in Conecuh County Circuit Court, alleging that the doctor negligently administered the injection into her back and punctured her right lung. Dr. Chastain denied that he was guilty of negligence and denied that his medical treatment caused plaintiff’s damages, and affirmatively alleged that he had exercised the care, skill and diligence of other physicians in the community.

There was no testimony at trial by any witness who had directly observed Dr. Chastain’s treatment of the plaintiff. Mrs. Baker could not see the needle being injected into her back. She testified that “he injected the shot very abruptly”; that “it seemed to go in very fast and hard”; that “it seemed like the largest shot I had most ever had in my life”; and that “it was a huge shot” and “felt awfully deep.” Mrs. Baker’s attorney asked a hypothetical question of Dr. Whittle to elicit his opinion whether there was a causal relation between the injection and the pneumothorax. He asked the doctor to assume

. . . that a physician that injected her on February 13, one day before you saw her, used a needle that was one inch to one and a half inches in length and assume further as true that he injected the area of the right scapula at either the second or third thoracic vertebra and that she immediately tasted some foreign taste in her mouth; that within an hour thereafter she began having severe pain in her right chest and assume further that she came to you and . . . that she was in good health, in no distress whatsoever, that her breathing was good prior to the injection.

Whittle testified that, under those circumstances, he would assume that the doctor had penetrated her pleura and that the pneumothorax “was directly cause related, unless she was one of those people that have a spontaneous pneumothorax [which] would be unusual.” Mrs. Baker’s attorney posed another hypothetical and asked the doctor to

. . . assume that a physician on Mrs. Baker used a needle that was one inch to one and a half inches in length and assume that her physical size was the same at the time it was done as it is now as you see her sitting there and that he pushed it all the way in ... so that it penetrated the pleura and caused a pneumothorax, can you tell this jury whether or not that is accepted medical practice in this community?

The doctor answered that, based on the hypothetical, he “would not think that would be acceptable if you just rammed a needle an inch and a half long into a lady as thin as Mrs. Baker to the hilt, I really wouldn’t think that would be acceptable.”

Dr. Chastain testified that he used an inch and one-half needle but that he only pushed it halfway in at the most. He testified that pneumothorax is a risk inherent in such a procedure, but that “if the physician is careful, it’s less likely that he is going to have complications.” In response to the question, “It’s certainly not proper to do this procedure and penetrate the pleura, is it?” he responded, “No, sir.”

At the close of plaintiff’s evidence, the defendant moved for a directed verdict on the grounds that there was insufficient evidence to submit the case to the jury and that plaintiff had not proved with expert medical testimony that defendant committed any negligence or medical malpractice. The trial judge granted the motion.

The rule in Alabama in medical malpractice cases is that to find liability, there must be more than a mere possibility or one possibility among others that the negligence complained of caused the injury. There must be evidence that the negligence probably caused the injury. Pappa v. Bonner, 268 Ala. 185, 105 So.2d 87 (1958). However, in Alabama there need be only a scintilla of evidence to require submission to the jury. If the evidence presents a mere gleam, glimmer, spark, smallest trace or scintilla to support the theory or to sustain the issue, the trial court must submit the question to the jury. Orange v. Shannon, 284 Ala. 202, 224 So.2d 236 (1969). When a directed verdict is requested, the entire evidence must be viewed in the light most favorable to the opposing party, Kilcrease v. Harris, 288 Ala. 245, 259 So.2d 797 (1972), and it should be refused where reasonable inferences may be drawn from the evidence unfavorable to the party requesting it or where there is a conflict in any material matter at issue. Baker v. Patterson, 171 Ala. 88, 55 So. 135 (1911). We must allow such reasonable inferences as the jury was free to draw, not merely those inferences which we think more probable. Alabama Power Co. v. Guy, 281 Ala. 583, 206 So.2d 594 (1967), and cases there cited.

In a medical malpractice action, the plaintiff must establish that the doctor breached his duty to the patient “to exercise such reasonable case, diligence and skill as physicians ... in the same general neighborhood, and in the same general line of practice, ordinarily, have and exercise in a like case.” Section 6-5-484(a), Ala.Code 1975.

A plurality of this Court is of the opinion that “the language ‘same general neighborhood’ ... refer[s] to the national medical neighborhood or national medical community, of reasonably competent physicians acting in the same or similar circumstances.” Zills v. Brown, 382 So.2d 528, 532 (Ala.1980). (Emphasis in original.)

The doctrine of res ipsa loquitur does not apply to medical malpractice cases. Berry v. Robertson, 285 Ala. 623, 235 So.2d 657 (1970). The burden rests on the plaintiff to show negligence. It is not enough to show that an unfortunate result followed. Piper v. Halford, 247 Ala. 530, 25 So.2d 264 (1946). The defendant contends that the plaintiff did not present expert medical testimony that Dr. Chastain had failed to exercise the acceptable degree of care, skill and diligence. We disagree. Dr. Whittle’s expert testimony is as sufficient as that presented in Tant v. Women’s Clinic, 382 So.2d 1120 (Ala.1980). There the testimony in contest consisted of two questions which were in contradiction to some later statements by the same doctor:

Q. In a vaginal hysterectomy would it be anticipated that the ureter would be sutured in an operation?
A. No, sir.
Q. Doctor, is it in keeping with the standard of care exercised by obstetricians in this community to suture both ureters during an operation?
A. Of course not.

We consider Dr. Whittle’s statements to be sufficient expert testimony. We hold that his testimony and the inferences which a jury might reasonably draw from the entire evidence present a scintilla of evidence for submission to the jury. It is solely within the province of the jury to evaluate the weight and credibility of the evidence. Tant v. Women’s Clinic, supra.

We hold, therefore, that the trial court erred in granting defendant’s motion for a directed verdict. We reverse the judgment appealed from and remand the cause for further proceedings.

REVERSED AND REMANDED

T.ORBERT, C. J., and MADDOX, JONES and BEATTY, JJ., concur.


author: WRIGHT, Presiding Judge.

text:
    ORKIN EXTERMINATING CO., INC. v. Billy WILLIAMS.
    Civ. 1956.
    Court of Civil Appeals of Alabama.
    Feb. 6, 1980.
    Rehearing Denied March 12, 1980.

      C. Winston Sheehan, Jr., of Ball, Ball, Duke & Matthews, Montgomery, for appellant.
    Benjamin E. Pool, Montgomery, for ap-pellee.
   WRIGHT, Presiding Judge.

This is a workmen’s compensation case.

The employer, Orkin Exterminating Company, appeals from an order of the trial court awarding claimant Williams compensation based on a permanent partial loss of ability to earn.

The first issue presented by this appeal is whether the trial court erred in computing the employee’s average weekly earnings. It is undisputed that Williams had been employed by Orkin for more than fifty-two weeks preceding his injury. Thus, the determination of his average weekly earnings is controlled by the first part of § 25-5-57(b), Code of Alabama (1975) which reads in pertinent part:

Compensation under this section shall be computed on the basis of the average weekly earnings. Average weekly earnings shall mean the earnings of the injured employee in the employment in which he was working at the time of the injury during the period of 52 weeks immediately preceding the date of the injury divided by 52 ....

The courts of this state have consistently held that the application of this section in determining the average weekly earnings of an injured employee who has worked in the same employment for more than fifty-two weeks is mandatory. Odell v. Myers, 52 Ala.App. 558, 295 So.2d 413 (1974) and cases cited therein. A reading of the record shows that the trial court failed to apply this formula. The trial court found “that the plaintiff was paid bi-monthly; that he worked, on the average, forty-five hours per week, earning $3.90 per hour for the first 40 hours and $5.85 per hour for the time he worked overtime, for an average weekly wage of $185.25. . . . ” The trial court then computed compensation based on this average weekly wage of $185.25. Clearly this is not the method of computation mandated by the statute and the court was in error in not applying the statutory formula.

The employer contends that there was no legal evidence before the trial court from which compensation could be computed in accordance with the statute and that its motion for directed verdict should have been granted. In considering this contention of the employer, we are guided by well-established rules of review.

The workmen’s compensation laws are remedial in nature and to be construed and applied liberally to effect their beneficent purposes. Tiger Motor Co. v. Winslett, 278 Ala. 108, 176 So.2d 39 (1965). Where the findings of the trial court in a workmen’s compensation case are supported by any evidence or reasonable inferences therefrom the trial court’s judgment will not be disturbed on appeal. Loggins v. Mallory Capacitor Co., 344 So.2d 522 (Ala. Civ.App.1977). Having carefully considered the record in light of these principles, we find there is sufficient evidence in the record from which the average weekly earnings of claimant may be determined according to the statute. The trial court may make such determination upon remand. If on remand the trial court determines that it is unable under the evidence before it to compute the employee’s average weekly earnings according to the statute, it may take additional evidence for that purpose.

The employer’s final issue is whether there is any evidence in the record to support the trial court’s finding of a fifty percent permanent partial loss of ability to earn. Although the medical testimony was that Williams had only a five percent to ten percent medical disability, it is well established that medical testimony is not the only factor a trial court may consider in determining loss of ability to earn. Stewart v. Busby, 51 Ala.App. 242, 284 So.2d 269 (1973). The medical testimony, when considered with the other testimony concerning Williams’ attempt to return to work following his injury, his employment history and skills provide sufficient evidence to support the trial court’s finding. This court does not consider the weight of the evidence but only its presence in the record. Davis-Day Timber Co. v. Gentry, 54 Ala.App. 385, 309 So.2d 97 (1975).

This case is reversed and remanded for determination by the trial court of the correct amount of compensation due Williams under the statute.

REVERSED AND REMANDED.

BRADLEY and HOLMES, JJ., concur.


text:
    Barclay E. CULVERHOUSE v. Barbara W. CULVERHOUSE.
    Civ. 2262.
    Court of Civil Appeals of Alabama.
    Sept. 17, 1980.
    Rehearing Denied Oct. 22, 1980.

      Charles L. Howard, Jr. of Howard & Howard, Birmingham, for appellant.
    John R. Christian of Wheeler, Christian & Roberts, Birmingham, for appellee.
   EDWARD N. SCRUGGS, Retired Circuit Judge.

This case involves a petition to modify and an adjudication of child support arrear-age.

By oral stipulation made in the circuit court, the appellant (defendant) limited the matters to be litigated under his petition to modify to the following paragraphs of the agreement of the parties which had been ratified by the court by their divorce judgment rendered on November 1, 1978:

2. That the defendant shall pay to the plaintiff for the support and maintenance of the minor children of the parties the sum of Three Hundred Dollars ($300.00) per week, with the first payment due and payable on November 3, 1978, and each week thereafter until the children attain their majority or marry.
6. Defendant shall continue to pay the premiums on the policy of insurance with New York Life, being policy number 33 524 925, in the amount of $150,000.00, and defendant shall continue to pay the premiums on said policy for as long as the plaintiff remains unmarried.
8. The defendant presently owns eight (8) lots in Sunshine Gardens Estates and described as follows: [descriptions omitted]
and the defendant agrees that as he sells each of the above described lots, that the plaintiff shall receive one half (V2) of the net proceeds derived from each of said sales or sale.
9. That the 9.6 acres of property described further as: [description omitted] shall be sold and when sold, and after payment of the balance of the note of approximately $20,000.00 on said property, that the net proceeds derived therefrom shall be divided equally between the plaintiff and defendant.

Those matters contained in paragraphs six, eight and nine are a portion of the property settlement provisions of the agreement of the parties. A court cannot modify a property settlement, except to correct clerical errors, after a lapse of thirty days from the rendition and entry of a final judgment approving such settlement. A divorce judgment dividing property between the parties is not subject to being modified as to such property division on account of changed conditions. Russell v. Russell, 386 So.2d 758 (Ala.Civ.App., 1980); Higginbotham v. Higginbotham, Ala.Civ. App., 367 So.2d 972 (1979) (this decision especially applies to payment of the life insurance premiums by the defendant under paragraph six, the plaintiff being the owner and beneficiary thereof); Monroe v. Monroe, Ala.Civ.App., 356 So.2d 196 (1978); McEntire v. McEntire, Ala.Civ.App., 345 So.2d 316 (1977); Kelley v. Kelley, 53 Ala.App. 608, 303 So.2d 108 (1974). Thus, the lower court was correct in not altering any of the provisions of said paragraphs six, eight or nine.

The defendant at the time of the divorce wholly owned his own corporation, Betr Homes, Inc., which was principally engaged in the construction and sale of residences in the Birmingham area. General economic conditions and increasing interest rates have been especially severe to the house building industry. Betr Homes and the defendant have not commenced new construction of a house since November 1, 1978, except for the foundation of one house, but they have completed the building of and sold five out of six houses then under various stages of construction. After April 1979, the business had no employees and was essentially dormant; however, three of the houses were sold thereafter for net receipts of $8,912, the last profitable sale being in August 1979.

In 1978 his salary from Betr Homes was $15,250, with net business income of $1,983 and gross capital gains of $24,528. His weekly income draws from Betr Homes, which netted him $206 per week in November 1978, were increased to $537.50 net per week, but ceased in April 1979. Prom May 1979 he worked for his father, who was additionally generous to his son, and, on the date of the trial, his net income was $178.48 per week. In the fall of 1979 he had completed the requisite real estate courses and examinations; which, hopefully, would lead towards a renewal of his real estate salesman’s license.

The defendant filed his petition to modify on July 10, 1979. After the ore tenus hearing on January 15, 1980 the trial judge, on February 7, 1980, rendered a judgment reducing the child support payments from $300 per week to $100 per week, and a judgment was rendered against defendant in the amount of $7,200 for arrearage of child support from July 10, 1979 to January 15, 1980, after crediting defendant with $600 paid thereon out of the Betr Homes’ bank account. During that period of time the defendant had $4,254 deposited to his personal bank account.

Since the divorce he traveled with girlfriends and/or his children as follows: once for a week at Vail, Colorado; five pleasure trips to Florida; one to Six Flags; and two to North Carolina. Some of his expenses on behalf of friends were detailed.

Although he sold a portion of his personal property, including some debt-free vehicles, he purchased a 1979 Cadillac on credit.

Most diligent and capable counsel for the appellant now seeks to place the trial judge in error for not further reducing child support payments below $100 per week, and for not commencing such reduced payments as of July 10, 1979 rather than becoming effective on January 15, 1980, which would thereby considerably reduce the amount of delinquency in child support payments.

Questions of fact were involved in deciding both of these issues. The learned trial judge had a judicial discretion to exercise, and we cannot disturb his decision unless it was so unsupported by the evidence as to be palpably wrong, manifestly unjust or plainly erroneous. Childress v. Childress, Ala.Civ.App., 378 So.2d 1147 (1979); Murphree v. Murphree, Ala.Civ. App., 366 So.2d 1132 (1979). The amount of periodic child support payments and the effective dates upon which the reduced payments would become effective were matters within the sound discretion of the circuit judge. After carefully reviewing all of the evidence, we cannot say that the trial court plainly and palpably abused its discretion in either regard.

We, therefore, affirm.

The appellee is not awarded an attorney’s fee on this appeal under all of the circumstances of the case.

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 1975. His opinion is hereby adopted as that of the court.

AFFIRMED.

All the Judges concur.


author: HOLMES, Judge.

text:
    Phyllis M. Dick FOX v. Gary E. DICK.
    Civ. 2292.
    Court of Civil Appeals of Alabama.
    Oct. 22, 1980.
    James M. Campbell, Anniston, for appellant.
    George A. Monk, of Merrill, Porch, Doster & Dillon, Anniston, for appellee.
   HOLMES, Judge.

The parties to this appeal were divorced in March 1978. An agreement between the parties was incorporated into the divorce decree. The wife brought an action in the Circuit Court of Calhoun County seeking an interpretation of a portion of that agreement. The trial court construed the agreement in a manner apparently favorable to the husband. The wife appeals and we affirm.

The portion of the agreement in question is as follows:

9. ANNISTON, ALABAMA REAL ESTATE:
A. Husband and wife agree to put up for sale the real estate now jointly owned by them located at Fairway Heights, An-niston, Calhoun County, Alabama.
B. Said real estate shall be put up for sale immediately upon the completion of the house located on said real estate.
C. Said property shall be listed with no less than two reputable real estate agents in the Anniston area.
D. Both parties agree that they shall deem acceptable any bona fide offer of purchase of said real estate which shall be in the amount of $150,000.00 or more. Husband and wife, however, shall not be prevented from accepting a lower bona fide offer of purchase if both parties agree for such price.
E. Upon the sale of said real estate, wife shall receive as her share of said sale, either 60% of the net proceeds of said sale or the amount of $25,000.00, whichever is greater.
F. The parties hereto expressly recognize that it will or may take a lengthy period of time to find a bona fide purchaser of the Anniston real estate, and that during such period of time there will be accruing interest on monies which they have borrowed from the Commercial National Bank of Anniston to use in the construction of the home located on the property. It is, therefore, hereby agreed and understood that the husband shall pay the interest as it accrues and becomes payable prior to the sale of the house, and the wife agrees to reimburse the husband for 50% of all interest so paid, this reimbursement to be taken from the wife’s net proceeds received under the terms of paragraph E above. It is the intention of this clause that the parties shall share equally in all respects in the interest which shall accrue on the money owed to the Commercial National Bank for the construction of the house.

The house was sold in November 1979. Repayment of various construction loans and the interest thereon absorbed the entire proceeds of the sale.

The trial court found that under the portion of the agreement set forth above the husband was obligated to pay the wife “either 60% of the net proceeds or $25,000, whichever was greater” only if the sale of the house produced a sum in excess of the indebtedness owed on the house. As indicated above, indebtedness absorbed the entire proceeds. The trial court found that the husband was not obligated to make any payment to the wife under this portion of the agreement.

The wife, through able counsel, contends that the husband is obligated to pay $25,000 regardless of whether the sale of the house produced a sum in excess of the indebtedness on the house.

The trial court by adopting a separation agreement merges the agreement into its final decree. Wise v. Watson, 286 Ala. 22, 236 So.2d 681 (1970). Divorce decrees are to be construed like other written instruments and if there is any uncertainty and ambiguity the court must construe it so as to express the intent of the parties. Reeder v. Reeder, Ala.Civ.App., 356 So.2d 202 (1978). Such intent can be derived from the provisions of the judgment. Price v. Price, Ala.Civ.App., 360 So.2d 340 (1978).

The agreement provides that “the wife shall receive as her share of said sale” the greater of 60% of the net proceeds or $25,000. (Emphasis supplied.) This language indicates, or at least is subject to the trial court’s interpretation, that the husband was not obligated to make payment from any source other than the proceeds of the sale. As indicated above, indebtedness absorbed the entire proceeds leaving no fund from which the husband could pay the wife. With this in mind we cannot say that the trial court erred in finding the husband not obligated to make payment to the wife under this portion of the agreement.

This case is due to be and is hereby affirmed.

AFFIRMED.

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


text:
    BERNIE HUGHES LINCOLN MERCURY and Ford Motor Credit Company v. Geraldine B. LATTIMORE.
    Civ. 2315.
    Court of Civil Appeals of Alabama.
    Oct. 22, 1980.

      J. E. Sawyer, Jr. of Rowe, Rowe & Sawyer, Enterprise, for appellants.
    Kenneth W. Quattlebaum of Brogden & Quattlebaum, Ozark, for appellee.
   EDWARD N. SCRUGGS, Retired Circuit Judge.

The plaintiff sought damages for fraud. The jury returned a verdict in favor of the plaintiff for $1,525, judgment was entered in accordance with the verdict and the defendant appeals. We affirm.

The plaintiff was the only witness to testify. When the plaintiff rested her case, the defendant filed a written motion for a directed verdict, and, shortly thereafter, refiled it when it also rested without presenting'any evidence. A motion for a judgment notwithstanding the verdict or for a new trial was filed by the defendant. Each of such motions was overruled by the court.

The question on appeal concerns the sufficiency of the plaintiff’s evidence to prove that the defendant committed a legal fraud. We briefly summarize some of the tendencies of the evidence which are favorable to the verdict.

On July 27, 1977, the plaintiff visited the defendant’s automobile business in order to obtain an estimate of the cost of repairs to be made to her automobile. She spoke to Ted Heflin, a salesman-employee of the defendant. Mrs. Lattimore testified:

I asked him did they have an auto-body repair shop and he told me no and he stated that there was a Chevrolet place that had one. And that was-that was it. That was what I went there for, so, just as I was getting ready to leave he asked me did I want to look at some of the cars on the lot, so I told him I wasn’t in the-wasn’t ready to buy a car at that time and-I walked into the lot and saw a car that I liked which was a Cougar that I purchased and I told him I would be back in December-I would be ready to buy in December, so, he asked me, says you should go on now and try to get you a car and I told him that I just didn’t have the money at the time, you know, so-he asked me to take the car for a test drive. The two of us went for a drive in the car and when we came back I went to get out and told him I still wasn’t interested in buying then, so, I told him that I hadn’t been on my job long enough and didn’t have any credit in the State of Alabama, so, he asked me how long had I been on the job that I was on.

Mr. Heflin filled out a credit application on her behalf and she signed it. That afternoon Mr. Heflin telephoned her and informed her that she could pick up the car. She told him that she did not have the down payment, to wait until the next week, but the salesman insisted that it was her car, and that she should pick it up then, as her credit had been approved. She returned to the defendant’s business location and Mr. Heflin suggested that she give a post-dated check for $1,338.43 for the down payment to be held by the defendant until she notified him to negotiate it. She informed Mr. Heflin that it would be necessary for her to obtain the money from her ex-husband.

Before Mrs. Lattimore executed the installment contract, she explained to him that, of necessity, she would have to be late in paying the first two payments and inquired of him as to “what would they do to me by being late the first two payments, and he told me nothing; I would have to pay a late charge.... ” He did not apprise her that the car could be repossessed in the event of default. She swore, “I wouldn’t have signed that contract, period, if the salesman hadn’t told me that my first two-if my first two payments was going to be late all I would have to do is pay a late charge and make all the other payments on time. I wouldn’t have signed that contract.” In substance, in attempting to sell an automobile on behalf of the defendant, its salesman assured her that “there wouldn’t be anything done about my car if I was late for the first two payments,” and this is what she was misinformed about or defrauded by the defendant.

The monthly installments were due on the second day of each month commencing on September 2, 1977. She signed the contract and gave the down payment post-dated check for $1,338.43 and, additionally traded in a vehicle for a trade-in value of $995.50.

Two weeks after the transaction, the defendant repossessed her car and then notified her that her down payment check had been returned because of insufficient funds. Her ex-husband had previously been unavailable, but she obtained some money from him and paid to the defendant around $900 in cash as well as issuing a new check for the balance of over $400. This check was later returned to the defendant.

On September 26 she paid the September installment by a check for $161.45, which included the $10 late charge. On November 2 Ford Motor Credit Corporation (FMCC), who, we assume, had become the assignee of the parties’ contract, repossessed the car. At that time she rode with them to the defendant’s place of business and spoke to Mr. Hughes, who told her that they took the car because the $400 check had been returned to the motor company. They agreed that she would return two days later and redeem the check, at which time she would received her car back. On November 4 she paid to Mr. Hughes, and he accepted it for the defendant, cash for the entire balance due upon the down payment. She also gave to him two cashier’s checks payable to the credit company for the October and November installments. The October payment was delinquent and that check included the $10 penalty for a late installment. The November payment would not have been delinquent until November 12. FMCC refused to accept the checks and never cashed either of them. FMCC further refused to release the car to her, and it was kept by them.

In instructing the jury, the trial judge did not charge the jury as to punitive damages, but limited any damages which might be awarded by the jury to compensatory damages only.

The proper course was for the trial court to refuse to direct a verdict for the defendant. In State Farm Mutual Automobile Insurance Co. v. Boyer, 357 So.2d 958 (Ala. 1978), the governing rule was stated as follows:

It is well established that, if there be any evidence which tends to prove or to disprove the plaintiff’s cause, the trial court should not withdraw the issue of fact from the jury. It is not for the court to judge of the sufficiency of the evidence or decide which of the conflicting tendencies of the evidence should be adopted by the jury, not to draw the reasonable inferences from the evidence for the jury ...
“A court should never direct a verdict when the evidence is such as to afford a reasonable inference of the existence of any fact unfavorable to the right of the party asking the affirmative charge to the verdict.” . . . Jones v. Bell, 201 Ala. 336, 77 So. 998 (1917).
In civil cases, the question must go to the jury if the evidence arising therefrom furnishes a scintilla in support of the theory, ....

All issues raised by the defendant upon this appeal concern the sufficiency of the facts. We have scrutinized the record and find that a jury question was presented by the evidence. The plaintiff’s evidence was adequate to prove her case. The trial judge correctly submitted the case to the jury for their decision. The verdict of the jury is presumed to be correct, and the refusal by the trial judge to grant a new trial adds verity to the propriety of the verdict and, thereby, strengthens the presumption in its favor. 2A Ala.Dig., Appeal & Error, Key No. 930(1). We cannot say that the jury’s verdict was wrong, for it was supported by the evidence. After a careful review of all of the plaintiff’s testimony, we are convinced that there was, at least, a scintilla of evidence as to each and every element of fraud so defined by § 6-5-101, Code of Alabama (1975) and as this and companion code sections have been refined by judicial decisions.

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), Code of Alabama (1975). His opinion is hereby adopted as that of the court.

AFFIRMED.

All the Judges concur.


text:
    STATE of Alabama, Assignee of Betty Jackson; State of Alabama; and the Alabama Department of Pensions and Security v. Fred Amos LITTLE.
    Civ. 2394.
    Court of Civil Appeals of Alabama.
    Oct. 22, 1980.

      Allen Edward Cook of Cook & Cook, Andalusia, for appellant.
    Fred Amos Little, pro se.
   WRIGHT, Presiding Judge.

This matter began by the filing of a petition by State of Alabama, as assignee of Betty Jackson, against Fred Little. The petition was filed in the case of Hazel Little v. Fred Little. That case was an action for divorce in which a judgment for divorce and child support was entered in 1972 in the Circuit Court of Covington County, Alabama. The petition was filed on behalf of a non-party without motion or leave to intervene under Rule 24, ARCP. It alleged to be filed on behalf of the State of Alabama as assignee of Betty Jackson (a non-party) by a private law firm as attorney for the State. There was no showing of appointment or authority of counsel to represent the State of Alabama. Counsel was the same as represented the wife in the original divorce proceedings.

The petition averred that Betty Jackson is receiving public assistance funds from the State for the support of the minor child, Michael Little, and had assigned her right to collect child support for the child from defendant to the State. It also averred that the State had already paid the sum of $4,332 for the support of the child and was presently paying $59 per month for support. The petition as amended requested that the prior judgment in the case be modified to order support for the child from the father, and that he be ordered to pay to the State all sums paid or to be paid by the Department of Pensions and Security for support of his child, Michael.

Answer was filed and the petition was heard orally by the court. Judgment was thereafter entered holding that the State had no standing to enforce child support against defendant under the facts presented. The petition was therefore dismissed. The State appeals.

This action of intervention by the State into a divorce action was stated to be under authority of § 38, Chapt. 10, Code of Alabama (1975). That chapter is designated as the Child Support Act of 1979 (§ 38-10-1). The act authorizes the Department of Pensions and Security of the State of Alabama to operate child support programs, including establishing paternity and enforcing child support obligations. It grants to the department subrogation to the rights of children, recipients or custodians to collect or receive child support payments and to initiate support actions existing under the laws of Alabama if they are receiving aid to dependent children from the State.

The right to initiate an action for support arises upon payment of aid or application for payment to the Department of Pensions and Security. § 38-10-7. The act provides that payment of aid to or on behalf of a dependent child creates a debt due the Department by the parent or parents of the child, provided however, in cases in which a court has ordered child support incident to a divorce decree or any other order for child support, the debt is limited to the amount specified in such court decree or order. § 38-10-6, The act further creates a new and additional civil cause of action on behalf of any person who is owed a duty of support. Such action may be enforced in any court having non-support jurisdiction or jurisdiction over custody of children. § 38-10-10.

The evidence presented below disclosed that Hazel and Fred Little were divorced in 1972. The custody of three children was given to the mother. Child support in the amount of $60 per month was ordered. That order was enforced until 1975, when the amount was increased to $70 per month. In 1979 an agreed modification was entered by which defendant was ordered to pay the sum of $15 per week for the support of Wanda Sue Little. The other two children were not mentioned in that order; however, it was stated to supersede all prior orders.

The testimony revealed that Michael Little had been in the custody of and wholly dependent upon Betty Jackson, the sister-in-law of the mother, since shortly after his birth in 1972. He never received any benefit from the support paid by defendant to his mother. Betty Jackson, for most of the time, had been receiving aid to dependent children from the Department of Pensions and Security for the benefit of Michael. The total received to trial had been $4,762.

The father testified that he had paid support as ordered by the divorce decree as modified. He didn’t know what the mother did with the money. He had remarried and had a sickly child from the last marriage. He is a roofer by trade and averages a weekly wage of $200. He says he is without funds to pay additional child support or to pay any accumulated debt therefor.

The issue presented is whether the trial court erred in finding the State lacked standing to prosecute this petition.

We are unable to determine from the record the basis of the finding of absence of standing. We have previously demonstrated that no plea to standing was filed by defendant. There appears no discussion of the issue in the record. There was no motion for intervention under Rule 24, ARCP. There appears no element for an intervention of right under Rule 24(a). If permissive intervention was available under Rule 24(b), there remains the necessity of timely and proper application and the exercise of the court’s discretion. Clearly, none of these matters were done. We thus can only conclude the court’s dismissal of the petition did not rest on Rule 24. There would have been no purpose for a hearing of evidence upon the merits if such were the case.

We could conclude the court determined that, as declared by the statute, the attempt to collect the debt alleged to be due because of payment made for benefit of Michael and the effort to secure an order of support for him, is a new cause of action and must be brought as such rather than ancillary to a previous divorce action. The court may have determined that the provisions of § 38-10-6 apply, and that since there was a divorce decree to which defendant had been subject, that no debt had arisen. It may have determined that the new cause of action could not be applied retrospectively. However, we have none of those matters before us and do not decide their application.

There is, without question, the right under the statute for the state to prosecute a separate and independent action in any court in Covington County to the same end. §§ 38-10-7 to 11. That right remains. For that reason we will affirm.

As we are not privy to the court’s reason for dismissal, we do not find error because we conclude its judgment to be without error, whatever its reason. City of Montgomery v. Couturier, 373 So.2d 625 (Ala. 1979); Hardee v. Hardee, 265 Ala. 669, 93 So.2d 127 (1957).

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.

      . We would comment that intervention by the State in a personal action for divorce does not appear desirable or appropriate.


text:
    Ralph JACKSON v. STATE.
    3 Div. 988.
    Court of Criminal Appeals of Alabama.
    Dec. 18, 1979.
    Rehearing Denied Feb. 26, 1980.

      George W. Cameron, Jr., Montgomery, for appellant.
    Charles A. Graddick, Atty. Gen., Sarah Kathryn- Farnell, Asst. Atty. Gen., for ap-pellee.
   JOSEPH J. MULLINS, Retired Circuit Judge.

The Grand Jury of Montgomery County returned an indictment for robbery against the appellant, Ralph Jackson, and he entered a plea of not guilty, and was convicted and sentenced to 20 years imprisonment.

The appellant was at all proceedings in the trial court represented by counsel of his own choice, and is represented in this Court by the same counsel under court appointment. This appeal was submitted to this Court on briefs.

The appellant in his brief contends that the trial court erred to his prejudice on two grounds: First, by permitting Officer Mob-ley, a state witness, to testify as to a prior oral statement attributed to the appellant without first showing that it was voluntary; second, by permitting state’s witness, Mob-ley, to testify on rebuttal to a statement attributed to the appellant when no showing or predicate had been laid.

The record in this case shows that state’s counsel on cross-examination of the appellant, who was a witness in his own behalf, asked the appellant this question: “Didn’t you tell the police that you were over in Tuskegee the afternoon of that robbery shooting diceV to which question the appellant answered: “No.” After the answer was in evidence the appellant’s counsel objected; the court asked appellant’s counsel: “What grounds?” The appellant’s counsel answered the court by stating: “No proper predicate.” The court then said, “sustained.” There was no motion to strike or exclude the answer from the evidence. Then the state asked appellant: “Have you ever told anybody at any time anywhere that you were somewhere else on that day?” The answer of appellant was: “No.” After the appellant rested his case and in rebuttal Officer Mobley was called by the state to testify and was asked the question: “All right. What statement, if any, did he (meaning the appellant) make to you concerning the robbery?” Appellant’s counsel objected, and the court asked for his grounds, and appellant’s counsel stated: “No proper predicate.” The court then said: “Overruled.” Whereupon the question was repeated and answered by Mobley, as follows: “He said that he remembered the robbery, that it happened on a Friday and on this particular Friday he was in Tuskegee shooting dice. He remembered this particular incident because it was the last time he had shot dice until we picked him up.”

There was a recess of the trial and the court had a hearing out of the presence of the jury. The evidence before the judge was to the effect that at the time the appellant was being taken from his home to police headquarters the appellant was in the police car with Officer Mobley and Officer Roy, and appellant asked the officers what it was about. That the officers told the appellant that it was about the robbery of the Uniformicy Shop that occurred on August 19,1977, and that the appellant replied by saying, “Yeah, I remember that; that was on a Friday and I was shooting dice in Tuskegee.” The court ruled that he would allow Officer Mobley’s testimony before the jury about the appellant’s oral statement to stay in evidence.

The court proceeded with the trial in the presence of the jury.

From the record it further appears that the statement now complained of by the appellant was first introduced in evidence before the jury by appellant’s counsel when appellant’s exhibit number 1 was introduced during his cross-examination of state’s first witness, Ellen Powell, who was one of the persons alleged to have been robbed. Appellant’s exhibit 1 contains the following statement attributed to appellant, and made in the presence of Officers Mob-ley and Roy: “He did make the comment on the way in to headquarters that he did remember the robbery and that he remembered that it happened on Friday and that particular Friday in August, 1977 and that he was in Tuskegee that day shooting dice and that he hadn’t shot dice since that time.”

We address both errors complained of in appellant’s brief together. The appellant by introducing into evidence appellant’s exhibit 1 containing the matter now complained of cannot complain of error on the part of the trial court because one should not be allowed to lead the court into error during trial and then complain of his own action on appeal. Carlile v. State, Ala. Cr.App., 372 So.2d 1348; Cert. Denied, Ala.Cr.App., 372 So.2d 1350; Truex v. State, 282 Ala. 191, 210 So.2d 424; So.Dig.Vol. 9, Criminal Law 1137(5).

The statement attributed to the appellant was not in answer to a question propounded by an officer of the law but was a purely voluntary statement made by the appellant before he was questioned by officers, when the appellant asked the officer the question of what it was all about. Garrison v. State, Ala.Cr.App., 372 So.2d 55; Twymon v. State, Ala.Cr.App., 358 So.2d 1072; Hammons v. State, Ala.Cr.App., 371 So.2d 986.

We hold that the trial court did not err to the prejudice of the appellant on the grounds set out in his brief.

We have carefully searched the entire record and are of the opinion that reversible error does not appear. The judgment of the trial court is due to be and is hereby affirmed.

The foregoing opinion was prepared by Honorable JOSEPH J. MULLINS, a retired Circuit Judge, serving as a Judge of this Court; his opinion is hereby adopted as that of the Court.

The judgment below is hereby affirmed.

AFFIRMED.

All the Judges concur.


text:
    Ex parte Ralph JACKSON. (In re: Ralph Jackson v. State of Alabama).
    79-411.
    Supreme Court of Alabama.
    Sept. 12, 1980.

      George W. Cameron, Jr., Montgomery, for petitioner.
    Charles A. Graddick, Atty. Gen., and Sarah Kathryn Farnell, Asst. Atty. Gen., for respondent.
   PER CURIAM.

Petitioner was convicted in the Circuit Court of Montgomery County on September 19, 1978, of the offense of robbery and was sentenced to twenty years’ imprisonment. On appeal, the Court of Criminal Appeals, 389 So.2d 946 affirmed his conviction. Petitioner filed a rehearing petition, along with an ARAP 39(k) motion. The Court of Criminal Appeals overruled Petitioner’s motion for rehearing without opinion.

The Issue: Did the Court of Criminal Appeals err in not reversing the conviction when the trial Court permitted a rebuttal witness to testify as to statements attributed to the Defendant, when the Defendant, as a witness, had not been asked if he had made such declarations? We hold that it was error to affirm the conviction. Thus, we reverse and remand to the Court of Criminal Appeals.

The well-settled rule here applicable is stated in Edwards v. State, 279 Ala. 371, 185 So.2d 393 (1966): “A witness cannot be impeached by proof of contradictory statements made by him, whether oral or in writing, without first asking him whether he made such declarations.”

The Court of Criminal Appeals accepts the Edwards principle as the premise for its consideration; but it invokes the equally well-settled exception grounded in Carlile v. State, 372 So.2d 1348 (Ala.Cr.App. 1979); and Truex v. State, 282 Ala. 191, 210 So.2d 424 (1968), to the effect that “one should not be allowed to lead the court into error during trial and then complain of his own action on appeal.”

Our examination of the record on appeal (for the sake of clarity and as aided by counsel’s use of Rule 39(k)) discloses that the appellate Court’s misapplication of the Truex exception is the result of its error in confusing a three-page “State’s Proposed Exhibit” (which, in fact, was never admitted) as pages 2, 3, and 4 of Defendant’s Exhibit No. 1 (which, in fact, contained only one page).

Once this inadvertence is corrected, it is clear that the trial Court erred in not sustaining the Defendant’s objection, on lack of proper predicate grounds, to the State’s offer to impeach the Defendant under the instant circumstances. The mere testimony of Defendant that he had made no statement to anyone concerning his whereabouts on the date in question or that he was in any other city on that date falls short of the requisite predicate for impeachment by a prior inconsistent statement. See Zellers v. State, 50 Ala.App. 241, 278 So.2d 242 (1973).

REVERSED AND REMANDED.

All the Justices concur, except for BLOODWORTH, J., not sitting.


text:
    Ralph JACKSON v. STATE.
    3 Div. 988.
    Alabama Court of Criminal Appeals.
    Oct. 28, 1980.
   PER CURIAM.

REVERSED AND REMANDED on authority of the Supreme Court of Alabama, 389 So.2d 948 (1980). No Opinion.

All the Judges concur.


author: LEIGH M. CLARK, Retired Circuit Judge.

text:
    Thomas L. DAVIS v. STATE.
    8 Div. 294.
    Court of Criminal Appeals of Alabama.
    Jan. 22, 1980.
    Rehearing Denied Feb. 26, 1980.
    Robert C. Gammons, Huntsville, for appellant.
    Charles A. Graddick, Atty. Gen., Jean Williams Brown, Asst. Atty. Gen., for ap-pellee.
   LEIGH M. CLARK, Retired Circuit Judge.

Under an indictment charging murder in the first degree, a jury found appellant guilty of murder in the second degree and fixed his punishment at imprisonment for twenty-five years. He was sentenced accordingly.

The fatal difficulty arose out of an effort of defendant to resolve some difficulty between him and his recently divorced wife, relative particularly to the care and custody of their youngest child. Appellant drove in a truck to the home of his former wife’s mother and his former wife’s brother, where his former wife was then living. Soon after his arrival, his son and his former wife drove up in an automobile. An argument ensued between defendant and his former wife, which became heated. Defendant’s former wife’s brother came out of the house with a shotgun in his hand; defendant’s former wife’s mother came out of the house with a pistol in her hand; defendant obtained his rifle out of his truck. Without raising the rifle to his shoulder, he fired it in the general direction of his former wife’s brother and in the general direction of his former wife. Three bullets hit his former wife’s brother and killed him. One bullet wounded his former wife. He pleaded not guilty and not guilty by reason of insanity to the indictment in the instant case charging him with murder in the first degree of Melvin Hunter, the brother of his former wife.

No contention is made on appeal that the evidence was insufficient to support the verdict. We find no basis for any such contention. Although we can understand that defendant was sincerely apprehensive as to his own personal safety, the evidence amply justified the conclusion of the jury that the evidence failed to show all of the essential elements of self-defense.

Officer Dennis Wooten of the Huntsville Police Department received a dispatch over the radio concerning the homicide. He saw the vehicle meeting the description of the one in which defendant had left the scene of the homicide, according to the radio dispatch. He followed it. Defendant pulled off the road and opened the door. Wooten’s testimony continued in part as follows:

“Q. Did he make any statement then?
“A. As I was cuffing him I said do you have a gun?
“MR. GAMMONS: We object, Your Honor, to any statements he made at that time.
“THE COURT: Overruled.
“Q. And what did he say at that time, if anything?
“A. He said it’s in the truck.
“Q. He said it was in the truck. Were those his exact words?
“A. I can’t say exactly what he said, but it was something to that nature.
“Q. All right, what did you do then?
“A. I proceeded to handcuff him and while I was handcuffing him, he said something in the nature of that’s the one that did it.
“MR. GAMMONS: I object, Your Hon- or.
“THE COURT: Overruled.
“Q. Did you ask any questions?
“A. The question I asked was did he have a gun.
“THE COURT: Other than that?
“A. Yes, sir, I can’t remember what I said to him. I might have said something in the nature of is that the one that did it?
“Q. Did you have occasion to look inside that truck?
“A. Yes, I did.”

Appellant argues that the evidence of defendant’s statement as to the gun as quoted was inadmissible in that no warnings had been given in compliance with Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). We disagree. The officer had not commenced any custodial interrogation at the time. The conduct of the officer was not accusative. He was acting normally, naturally, and with due regard to defendant, as well as for the protection of the officer against a possible sudden use of a firearm. It is significant, perhaps, that the officer used the word “gun,” in that it may indicate that he did not know the kind of weapon that was used in the homicide. The absence of Mi randa warnings does not forbid the introduction in evidence of statements by a defendant that are not the product of custodial interrogation. Kelley v. State, Ala.Cr.App., 366 So.2d 1145, 1148-1149 (1979), and cases therein cited.

Appellant further contends that an incriminating statement made by him after the statement we have just considered was made by him and after Miranda warnings were given him was infected by the claimed poison in the first statement. As we have just held that the first statement was admissible, there is a failure of the hypothesis upon which appellant bases his claim as to the admissibility of the second statement.

Appellant says that prejudicial error is to be found in a portion of the court’s oral charge as to murder in the first degree. As to the point, defendant at the conclusion of the court’s oral charge made an objection as follows:

“MR. GAMMONS: The defense objects to the instructions that you gave with regard to first degree murder as related to killing of one while trying or intending to kill another. Our grounds for that objection, Your Honor, are that the prior conviction conclusively found no intent to kill Annie Mae Davis [defendant’s former wife] and foreclosed the State from arguing that theory in this case.”

Error, if any, in charging on murder in the first degree becomes harmless when there is a conviction of murder in the second degree. Pinkerton v. State, 146 Ala. 684, 40 So. 224 (1906); Underwood v. State, 179 Ala. 9, 60 So. 842 (1913); Jarrell v. State, 22 Ala.App. 304, 115 So. 146 (1928).

We find no error in the record prejudicial to defendant. The judgment of the trial court should be affirmed.

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

AFFIRMED.

All the Judges concur.


author: TORBERT, Chief Justice. MADDOX, Justice

text:
    Ex parte Thomas L. DAVIS. (Re: Thomas L. Davis v. State of Alabama).
    79-407.
    Supreme Court of Alabama.
    Aug. 8, 1980.
    Rehearing Denied Oct. 3, 1980.

      Robert C. Gammons, Huntsville, for petitioner.
    Charles A. Graddick, Atty. Gen., and Jean Williams Brown, Joseph G. L. Marston, III, Asst. Attys. Gen., for respondent.
   TORBERT, Chief Justice.

Petition for certiorari was granted on the issue of whether the Court of Criminal Appeals, 389 So.2d 950, erred in affirming the trial court, which allowed into evidence petitioner’s inculpatory statement made without his having first been given the Miranda warnings, i. e., whether the Court of Criminal Appeals’ decision was in conflict with the decisions of Kelly v. State, 366 So.2d 1145 (Ala.Cr.App.1979), and Harrison v. State, 358 So.2d 763 (Ala.1978).

This case arose from a heated domestic dispute during which petitioner discharged his gun in the general direction of his former wife and her brother, wounding his former wife and killing her brother, Melvin Hunter. Officer Dennis Wooten of the Huntsville Police Department received a radio dispatch concerning the homicide. He saw a vehicle matching the description of the vehicle in which defendant had left the scene of the homicide (according to the radio dispatch) and pulled that vehicle off the road.

On August 27, 1979, the petitioner was convicted in the Circuit Court of Madison County on a charge of second degree murder. Petitioner appealed that conviction, alleging that it was error for the trial court to admit into evidence over his objections certain testimony relevant to a gun which was alleged to be the gun with which petitioner shot Melvin Hunter, because no Miranda warnings had been given petitioner prior to questioning. The Court of Criminal Appeals affirmed the rulings of the trial court on January 22, 1980, holding that Miranda warnings need not precede the questioning of petitioner because that questioning was not a custodial interrogation. “[Wjhere there is no dispute about the facts, this court may go to the record for a complete understanding of questions treated in the opinion of a court of appeals.” Life Insurance Company of Georgia v. Miller, 292 Ala. 525, 296 So.2d 900 (1974). Officer Wooten’s testimony in pertinent part is as follows:

A. He didn’t stop right away, so I turned my siren on and got his attention and at the top of the hill there at Winchester, between Blue Springs and I believe the first street there is Ortega Circle, he did pull over to the side of the road-it was two-lane- and I pulled up approximately ten feet from him, leaving my left front headlight on his door so that I could observe him. I dismounted my vehicle and I automatically put my shotgun in my hand, feeling that he was possibly armed. In the description we had learned that he was possibly armed with a weapon.
Q. Did you go up to the vehicle?
A. At that time I dismounted my vehicle and his door came open. His left foot touched the ground, but he didn’t dismount the vehicle.
Q. Did you tell him to dismount?
A. Yes, sir, I did.
Q. Did he immediately dismount?
A. No, sir, he didn’t.
Q. What did he do, if anything?
A. His foot turned to the right, his left foot did, which was still on the ground, but didn’t dismount. I then again told him to dismount, at which time he slowly came out of the vehicle.
Q. What happened then?
A. I had him to lie down, face down on the ground, feeling that he was possibly suspect in the homicide.
Q. Did he make any statement to you at all as he was getting out of the vehicle?
MR. GAMMONS: We object to any statements, Your Honor.
THE COURT: Overrule.
Q. Did you ask him any questions as he was getting out of the vehicle?
A. As he was getting out, I said nothing more than just get out of the vehicle and lie face down on the ground.
Q. Did he say anything to you from the time he got out of the vehicle until the time he laid face down?
A. No, sir, not at that time.
Q. What did you do when you got him on the ground?
A. I approached him and I had him spread his arms and his legs out to his side in a manner like this, so I could observe his hands and feet, making sure that he was not armed, as visible as I possibly could, then I started to cuff him.
Q. Did he make any statement then?
A. As I was cuffing him I said do you have a gun?
MR. GAMMONS: We object, Your Honor, to any statements he made at that time.
THE COURT: Overrule.
Q. And what did he say at that time, if anything?
A. He said it’s in the truck.
Q. He said it was in the truck. Were those his exact words?
A. I can’t say exactly what he said, but it was something to that nature.
Q. All right, what did you do then?
A. I proceeded to handcuff him and while I was handcuffing him, he said something in the nature of that’s the one that did it.
MR. GAMMONS: I object, Your Hon- or.
THE COURT: Overrule. Did you ask any questions?
A. The question I asked was did he have a gun.
THE COURT: Other than that?
A. Yes, sir, I can’t remember what I said to him. I might have said something in the nature of is that the one that did it. [Emphasis added.]

We find that .the decision of the Court of Criminal Appeals, holding that Officer Wooten had not begun a “custodial interrogation,” is in error.

In Miranda, supra, the United States Supreme Court defined “custodial interrogation” to mean “questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.” The above quoted statements from the record indicate that the officer dismounted his vehicle “. . . holding his shotgun and, while handcuffing defendant, who was then lying face down on the ground, questioned him.” In this position, there was sufficient restraint on defendant’s liberty for defendant to be considered “in custody” of the police officer. Miranda warnings are required where there has been such a restriction on a person’s freedom as to render him “in custody.” Kelley v. State, 366 So.2d 1145 (Ala.Cr.App.1979). Thus, it was reversible error for the trial court to admit these statements into evidence since Miranda warnings had not been given defendant prior to the interrogation. Harrison v. State, 358 So.2d 768 (Ala.1978).

We do not mean for this opinion to be construed as holding as a matter of law that a police, officer must always give Miranda warnings prior to asking a suspect if he is armed. We recognize the right of a police officer to ask such a question in the interest of his own and others’ personal safety. See, Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Under the facts in the instant case, it is clear that the defendant posed no threat of harm at the time the crucial questions were asked.

Our reversal, then, is not grounded upon admission of evidence concerning the type of protective action approved in Terry v. Ohio. Rather, our reversal is based upon admission of defendant’s inculpatory response to “custodial interrogation” conducted without a Miranda warning. Crucial to our holding, in addition to the “in custody” aspect of the interrogation, is that the officer went beyond asking whether the defendant was armed to ask whether the weapon was the one used in the commission of the offense.

REVERSED AND REMANDED.

FAULKNER, JONES, SHORES, EM-BRY and BEATTY, JJ., concur.

MADDOX, J., with whom ALMON, J., concurs, dissents.

ON APPLICATION FOR REHEARING OPINION EXTENDED; APPLICATION FOR REHEARING OVERRULED.

MADDOX, Justice

(Dissenting).

The Court of Criminal Appeals, without a single judge dissenting, concluded:

“The officer had not commenced any custodial interrogation at the time. The conduct of the officer was not accusative. He was acting normally, naturally, and with due regard to defendant, as well as for the protection of the officer against a possible sudden use of a firearm. It is significant, perhaps, that the officer used the word ‘gun,’ in that it may indicate that he did not know the kind of weapon that was used in the homicide. The absence of Miranda warnings does not forbid the introduction in evidence of statements by a defendant that are not the product of custodial interrogation. Kelley v. State, Ala.Cr.App., 366 So.2d 1145, 1148-1149 (1979), and cases therein cited.”

The majority, in attempting to steer a course between Miranda and Terry has so fixed its attention upon the fact that the suspect was lying flat on the ground that it cannot see that the officer was, in the words of the opinion of the Court of Criminal Appeals, “acting normally, naturally, and with due regard to defendant, as well as for the protection of the officer against a possible sudden use of a firearm.”

The majority’s conclusion that “the defendant posed no threat of harm at the time the crucial questions were asked” is the epitome of judicial hindsight, and expands the Miranda doctrine even beyond the twilight zone. If the officer is to be believed, he was concerned for his own personal safety, because, as he testified, the suspect “didn’t stop right away,” he did not dismount his vehicle immediately, and after being told again to dismount, “he slowly got out of the vehicle.” If asking a suspect, who is believed to be armed, if he “has a gun” is “custodial interrogation,” then I completely misunderstand Miranda, and put too much stock in Terry. I recognize, of course, that there is a line between Miranda and Terry and that under certain factual situations, it is difficult to determine whether or not Miranda should apply. In this case, however, I think the Court of Criminal Appeals was correct in determining that this one fell on the Terry side.

In summary, this case does not involve the evil that Miranda sought to prevent. This case is an example of a dangerous on-the-street confrontation and the interrogation by the officer is not the type which Miranda condemned; the action taken by the officer was the type permitted by Terry, under the particular facts of this case.

ALMON, J., concurs.

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