author: BRADLEY, Judge.

text:
    TODD FARM, INC. v. Joseph W. HAPONSKI, Jr.
    Civ. 2137.
    Court of Civil Appeals of Alabama.
    May 21, 1980.
    Rehearing Denied June 25, 1980.
    M. R. Nachman, Jr. of Steiner, Crum & Baker, Montgomery, for appellant.
    Richard C. Belser and John M. Bolton, III of Robison & Belser, P. A., Montgomery, for appellee.
   BRADLEY, Judge.

The plaintiff, Todd Farm, Inc., appeals the trial court’s decision which gave it judgment for $5,361.74. The plaintiff had sought approximately $15,000 from the defendant, Joseph Haponski, Jr., for breach of contract.

The facts are not in dispute. On March 16, 1976 the defendant purchased two parcels of real estate from the plaintiff. As part of the consideration for the conveyance of the real estate, the plaintiff agreed to pay fifty percent of the cost of the curb, gutter and pavement necessary to extend a street called Plantation Way. This street fronted the property purchased by the defendant. The agreement between the parties is set out in a letter from the plaintiff which provides in pertinent part:

Todd Farm, as a part of the consideration for this transaction, acknowledges that Parcels “A” and “B” have a combined frontage along the Northerly boundary of an Easterly extension of Plantation Way of 400 feet — only 81.17 feet of which presently is paved and otherwise improved. We agree, therefore, that at such time as you may wish to plat the remainder of your property along Plantation Way, as extended, we will join with you in the dedication of such Easterly extension of Plantation Way and that we will join with you in installing the necessary curb, gutter, and pavement which may be required by the City of Montgomery. Water and sewer mains already are installed along the proposed Easterly extension of Plantation Way, and we will not obligate ourselves to make any additional sewer laterals or water tap installations for your benefit, but we do specifically and affirmatively agree to pay 50% of the cost of the Easterly extension of Plantation Way for curb, gutter, and pavement to the Easterly boundary of Parcel “A”, whenever either you or we determine that such extension should be made. Conversely, we shall expect the same cooperation from you.

Subsequently, on January 12, 1977, the defendant advised the plaintiff that he wished to extend Plantation Way pursuant to the parties’ earlier agreement. The project was commenced in July of 1977, and at its conclusion a bill in the amount of $14,888.97 was sent to the defendant for payment. This statement was based on a final estimate prepared by the project engineer and included the following:

Item:
1. Clearing and grubbing_$ 500.00
2. Street grading _ 1,780.00
3. Full depth asphalt_ 7,549.50
4. Compacted subgrade _ 1,301.25
5. Std. concrete curb & gutter_ 2,273.60
6. Concrete header_ 111.00
7. Barricade _ 175.00
8. Tap and saddle_ 150.00
9. Adjust existing manhole_ 100.00
10. Sanitary laterals_ 340.00
11. Reinf. concrete pipe-Class IV .. 1,762.50
12. Trench gate _ 3,200.00
13. Junction box_ 450.00
14. Headwall_ 400.00
15. Tail ditch excavation _ 900.00
16. Adjust pipe under haul road_ 300.00
17. Water laterals_ 1,040.00
18. Well points_ 1,700.00
19. Washed gravel _ 2,020.72
20. Equipment rental_ 5,255.00
21. Water lines_ 730.30
Total _ $32,038.87

Mr. Haponski testified that prior to the making of the agreement, he met with Carl W. Bear, an officer of plaintiff, at the property site in question and they discussed the proposed project. According to Mr. Hapon-ski, Mr. Bear informed Mr. Haponski that the utilities were in place and all that remained to be done was the installation of curb, gutter and asphalt pavement. Mr. Haponski further stated that he knew that a storm drainage system had to be installed as a part of a street paving project and that no such system had been installed at the time he made the agreement with Mr. Bear. They then agreed that thirty days’ notice would be given if construction on the street was to be commenced. Subsequently, a letter was written by Mr. Bear to Mr. Hapon-ski confirming the agreement. The agreement is as set out above.

The defendant testified that he was liable for the first five items on the statement of costs incurred on the project but that he was not liable for and had not agreed to pay the other items on the statement. He stated that the remaining sixteen items related to the installation of water and sewer lines and a storm drainage system and he had not agreed to pay for anything other than what was necessary to install the curb, gutter and asphalt pavement, i. e., the first five items of the cost statement.

The general rule of contract law is that when parties reduce their agreements and obligations to writing, the writing, in the absence of mistake or fraud, is the sole expositor of the transaction and intention of the parties, and the court cannot, under the guise of construction, provide a new and different contract for the parties. DeKalb Agresearch, Inc. v. Abbott, 391 F.Supp. 152 (N.D.Ala.1974), aff’d., 511 F.2d 1162 (5th Cir. 1975); Gunnels v. Jimmerson, Ala., 331 So.2d 247 (1976).

Plaintiff argues that defendant is required by his written agreement to participate in the cost of installing the “necessary curb, gutter, and pavement which may be required by the City of Montgomery.” Plaintiff further contends that the installation of a storm sewer system is necessary before a paved street will be accepted by the City of Montgomery. The plaintiff also says that certain other items of the statement of costs are required as a necessary part of the installation of the curb, gutter and pavement.

The parties’ agreement specifically provides that the water and sewer mains had been placed along the extension of Plantation Way, and the undisputed testimony of plaintiff’s only witness, an engineer familiar with the project, was that reference to sewer mains is understood in the construction business to mean sanitary sewer mains and does not refer to storm sewer systems. He further stated that a storm sewer system is an integral part of a street paving project and the City of Montgomery would not approve a street paving project without provision for a storm drainage system. Mr. Haponski also testified that he knew the storm drainage system had not been installed at the time of the agreement. He further stated that a storm drainage system is required by the City of Montgomery before a street could be paved. But he also said that he did not intend to pay for anything other than the first five items on the statement of cost.

The terms of the written contract, not the mental operations of one of the parties, control the interpretation of the contract. Kinmon v. King Auction Co., 290 Ala. 323, 276 So.2d 569 (1973). In the instant case the subjective intent of defendant is of no consequence. The agreement must be the sole expositor of the intention of the parties. The evidence in the case at bar showed that the installation of the necessary curb, gutter and pavement as required by the City of Montgomery included not only a storm drainage system but also other items of construction expense. Therefore the judgment of the trial court is reversed and the cause remanded for a determination of what additional costs the defendant is liable for in the installation of the necessary curb, gutter and pavement which may be required by the City of Montgomery. Not to be included in this list of costs are the items related to the installation of water and sewer lines.

REVERSED AND REMANDED WITH INSTRUCTIONS.

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


source: Caselaw Access Project

license: Public Domain

text:
    Margurite HILTON v. Robert Harry HILTON.
    Civ. 2088.
    Court of Civil Appeals of Alabama.
    May 28, 1980.

      Robert B. Harwood, Jr., of Rosen, Wright, Harwood, Albright & Cook, P.A., Tuscaloosa, for appellant.
    H. Vann Waldrop of Hubbard, Waldrop, Tanner & deGraffenried, Tuscaloosa, for appellee.
   BRADLEY, Judge.

Plaintiff, Margurite Hilton, appeals from a lower court decision which awarded her $500.00 per month periodic alimony. She claims this award is inadequate. We affirm.

Marguerite Hilton and Robert Harry Hilton were married on April 25, 1959.

At the time the parties met, Mrs. Hilton had been working as a receptionist for Kirby Lithographic Company in Washington, D.C. for about eighteen months. Mr. Hilton was in the Army.

Retiring from the Army after twenty-one years, Mr. Hilton pursued not only an undergraduate degree, but obtained a master’s and a doctorate degree as well. For three years he was an associate professor with the University of Alabama. In 1976 he obtained employment with Chase Resources Corporation. On December 28,1977 Mr. Hilton’s job with this company ended and he remained unemployed until June 8, 1978.

It was then that Mr. Hilton was employed by Transco Exploration Company in Houston, Texas as a landman. Soon after this the parties filed for divorce.

Mr. Hilton testified that he grossed $34,-000.00 a year. His net monthly salary is $2,065.00. In addition, he receives Army net retirement income of $507.00 per month, plus an $18.75 tax-free Series E bond each month, which is part of the Army retirement program.

The husband's debts consist of $17,500 owed to the First National Bank of Tuscaloosa; car payment of $265.00; and general debts amounting to $250.00.

Mrs. Hilton has not worked during her twenty years of marriage to Mr. Hilton except to occasionally sell Tupperware, Avon Products, etc. Her only education is a GED certificate which is the equivalent of a high school degree.

Mrs. Hilton is fifty-two years old, in relatively good health, and is now trying to get a fast-food brokerage business going, though with only a small degree of success thus far. She has no substantial income at this point.

The wife appeals on the basis that the $500.00 periodic alimony award is insufficient to meet her living requirements, which amount to $1,127.00 per month.

The trial court heard the parties’ testimony ore tenus. Therefore on appeal we view the divorce decree as if it were a jury verdict, and will reverse such decree only if, after considering all the evidence, it is concluded that the decree is clearly and palpably wrong. Body v. Body, 47 Ala.App. 443, 256 So.2d 184 (1971). Further, an award of alimony is within the sound discretion of the trial judge. Killingsworth v. Killingsworth, 284 Ala. 524, 226 So.2d 308 (1969).

The evidence shows that the husband had engaged in an adulterous relationship prior to the divorce, that the parties’ drinking habits led to altercations involving physical and verbal abuse of each other, and that the wife engaged in gambling on trips to Las Vegas, Nevada and to Greenetrack in Alabama. The evidence further shows that the wife had been a receptionist for a short period of time prior to the marriage, that during the marriage she had, on occasion, sold Avon Products, Tupperware, jewelry, and items that she had purchased at auctions, that during 1979 she had operated the restaurant in a local country club, and that she is presently operating as a broker for fast-food contracts.

We consider the evidence to be sufficient to permit a finding that the court’s decree is not plainly and palpably erroneous so as to require reversal.

We conclude that the trial court did not err in awarding the wife periodic alimony in the amount of $500.00 per month, and its judgment is hereby affirmed.

Mrs. Hilton has requested an attorney’s fee for the services of her attorney on this appeal and, even though we have found that the trial court did not abuse its discretion in the amount of alimony to her, we consider that she will have need of those assets that may be available to her; consequently we award $350.00 as a fee for her counsel’s services on this appeal. Thompson v. Thompson, Ala.Civ.App., 337 So.2d 1 (1976).

AFFIRMED.

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


author: BOWEN, Judge.

text:
    James E. BURKE v. STATE.
    6 Div. 59.
    Court of Criminal Appeals of Alabama.
    Oct. 2, 1979.
    Rehearing Denied Oct. 30, 1979.
    Richard L. Taylor, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen. and Joseph G. L. Marston, III, Asst. Atty. Gen. for the State.
   BOWEN, Judge.

In this case the defendant was indicted and convicted for selling a security in an insolvent corporation to Larry Andrews. On appeal this case was consolidated with and submitted on the same issues as James E. Burke v. State, Ala.Cr.App., 385 So.2d 643, 6 Div. 963. This judgment of conviction is reversed and remanded on authority of Burke v. State, Ala.Cr.App., 385 So.2d 643, 6 Div. 963 (Ms. October 2,1979).

REVERSED AND REMANDED.

All Judges Concur.

Affirmed, Ala., 385 So.2d 648.


text:
    James E. BURKE v. STATE.
    6 Div. 963.
    Court of Criminal Appeals of Alabama.
    Oct. 2, 1979.
    Rehearing Denied Oct. 30, 1979.
    Richard L. Taylor, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen. and Joseph G. L. Marston, III, Asst. Atty. Gen., for appellee.
   BOWEN, Judge.

The defendant was indicted and convicted for selling a security in an insolvent corporation. Code of Alabama, Section 8-6-20 (1975). A jury trial was waived and sentence was fixed at three years’ imprisonment.

The controlling questions in this case are whether the “Satellite Laboratory License Agreement” and the “Trans-Lab License Agreement” entered into by the defendant with Alvin Lamar Sims are securities within the purview of the Securities Act of Alabama, particularly Section 8-6-20 prohibiting the sale of any security of an insolvent company.

The trial court found both agreements to constitute securities as investment contracts. On authority of Gallion v. Alabama Market Centers, Inc., 282 Ala. 679, 213 So.2d 841 (1968), we find that the agreements are not within the meaning of investment contracts as defined in Gallion.

The trial court set forth its finding of facts and conclusions of law.

“STATEMENT OF FACTS IN THE CASE IN CHIEF”
“International Diagnostic Testing Corporation, hereinafter TDTC’, was incorporated in Alabama on May 26,1976. IDTC began its franchising activities on December 16, 1976, with an advertisement in The Wall Street Journal offering for sale IDTC ‘Satellite Laboratory’ franchises and ‘Translab’ franchises.
“IDTC was a minimum capital corporation and suffered financial ills from the time it was incorporated until it went out of business.
“The Medi-Test system of IDTC was a system which revolved around a ‘reference laboratory’ or a ‘home laboratory’, which had the capability of performing medical tests of a highly complex nature. The home laboratory, which was located on Goodwin Crest Drive in Birmingham, Alabama, was equipped with a ‘SMAC’ computer, a very advanced and very expensive computer which could conduct numerous and complicated medical tests in a matter of a few minutes. A ‘satellite laboratory’ was a laboratory in which less complicated medical tests were to have been performed. It was the general scheme of IDTC that the satellite laboratory would conduct approximately 70 to 75 percent of the medical tests it received, while the remaining 25 to 30 percent of the tests would require the more sophisticated testing facilities of the reference lab or home lab. For these tests sent by the satellite lab, the reference lab was to keep 60 percent of the retail price of the test and the difference was to have been profit to the satellite laboratory. There were to have been no fees or royalties paid to the reference lab for work performed by the satellite lab.
“The function of the ‘Translab’ franchise was to secure accounts for the reference laboratory and to merely act as a collection station for tests to be transmitted to the reference laboratory. No medical testing whatsoever was to have been conducted by the Translab. The Translab franchise was to keep 30 percent of the retail price of the tests performed by the home lab as a collection fee.
“Early in January, 1977, Alvin Lamar Sims, attracted by the advertisements in The Wall Street Journal, entered into negotiations with James E. Burke, an agent of IDTC, for the purchase of a Satellite Laboratory franchise. On February 11, 1977, the sale of said franchise was consummated for a $15,000 franchise fee.
“The Satellite Laboratory franchise purchased by Alvin Lamar Sims was to have been established in the Columbus, Georgia, area. The Satellite Lab was to function as previously described.
“IDTC was to have assisted Mr. Sims in these ways:
‘1. All phases of the laboratory setup
‘2. Training of Mr. Sims
‘3. Securing proper personnel for the laboratory
‘4. Laboratory design, equipment and required license procurement
‘5. Financing the venture
‘6. Lease procurement and location’
“Few, if any, of the above services were ever provided; in fact, IDTC’s refusal to disclose its shaky financial status prevented Mr. Sims from obtaining additional funding. This Satellite Laboratory franchise was never established.
“Further, IDTC retained restrictions over the satellite laboratory:
‘1. No lease shall be entered into on Mr. Sims’ behalf without the written approval of IDTC.
‘2. No person shall be employed without the consent of IDTC.
‘3. No local advertising by Mr. Sims without prior approval of IDTC.
‘4. IDTC had the right to enter and inspect the premises at all reasonable times.
‘5. IDTC had the right to assume temporary management and control for a stated period should certain deficiencies not be corrected within a period of one month after notice thereof.’
“IDTC represented to Mr. Sims that he could begin his new business within 30 days of the purchase of the Satellite Laboratory franchise, but he later learned it would take as long as 90 days to obtain the needed licensing to conduct the new business.
“Mr. Sims, having quit his job in anticipation of his new venture, was without an income; therefore, he entered into an additional contract with IDTC. Mr. Sims purchased a Translab franchise from James E. Burke, an agent of IDTC, for a franchise fee of $5,000. The Translab was to be conducted in Lee County, Alabama, under the licenses of IDTC, and Mr. Sims was to go into the Georgia area when the Satellite Lab license was obtained.
“The function of this Translab was to have been the same as previously described. IDTC was to give the same aid and hold the same restrictions as were set forth in the above Satellite Lab franchise. In addition to the above, IDTC was to establish 10 accounts, or a break-even point, for the new franchise. This was never done. IDTC was to furnish the initial materials for gathering specimens for testing. This also was not done. The Translab franchise was never prosperous and only operated for a short time.
“The ‘SMAC’ computer, which was the heart of the contract, and the remaining laboratory equipment, including the physical plant, were in constant jeopardy because the necessary rents had not been paid by IDTC.
“Mr. Sims had no managerial or technical expertise in the medical testing field. Mr. Sims’ degree was in Business Administration. Thus, the franchises were dependent for success on the ability of IDTC to perform services for them. The franchises had no managerial control over IDTC.
“IDTC was insolvent as defined in Title 8, Section 6-20, Code of Alabama, 1975, at the time Alvin Lamar Sims purchased the two franchises. James Edgar Burke, acting in his capacity as agent for IDTC, sold the said franchises to Mr. Sims and failed to disclose the fact of insolvency to him.”
“CONCLUSIONS OP LAW”
“The facts were stipulated. The trial court hereby concludes on oral testimony and the stipulation that the sale of franchises (Satellite Laboratory Franchise and Translab Franchise) does constitute an investment contract within the scope of the term ‘security’ as defined in the Alabama Securities Act, Section 8-6-2(10), Code of Alabama 1975.
“The single issue presented was whether or not such a sale was within the meaning of security as defined in the Alabama Securities Act. It is obvious from the stipulated facts presented that the sale of Translab franchise was within the scope of the term ‘security’, even in the strict interpretation of the Gallion v. Alabama Market Centers, Inc., 282 Ala. 679, 213 So.2nd[2d] 841, 1968, and S.E.C. v. W. S. [J.] Howey Co., 328 U.S. 293 [66 S.Ct. 1100, 90 L.Ed. 1244]. Both Howey and Gallion set forth a three-pronged test to determine what does constitute a sale of securities. The test is:
‘(1) Investment of Money in a common enterprise,
‘(2) Expectation of profits, and
‘(3) To be derived solely from the efforts of the promoter or third persons.’
“From the examination of this test and the facts set out above, it is obvious that the Translab Franchise purchased by Mr. Sims does fall within the scope of this test. I.D.T.C. contractually guaranteed to secure for the investor the initial accounts so that the income derived from these acquired accounts would equal the necessary expenses of the investor’s operation, (a so-called break even point). The investor looked solely to the efforts of I.D.T.C.’s management to generate the promised income and profits. In return for a substantial one-time fee, the investor was to receive (1) business surveys, (2) market survey, (3) financial assistance, and most important, (4) the use of I.D.T. C.’s medical testing facilities, equipment, staff and S.M.A.C. computer.
“Translab merely being a collection station for specimens being shipped to the reference laboratory in Birmingham, Alabama, for testing, had no control of its own fate. For the franchisee had absolutely no managerial control over any of the medical testing facilities of the reference lab or of I.D.T.C., and even operated under I.D.T.C. license. Thus, the success or failure of I.D.T.C. solely dictated the success or failure of the Translab franchises.
“A more difficult question is presented as to whether or not the sale of Satellite Laboratory franchises is an investment contract within the scope of the term ‘security’ as defined in the Ala. Securities Act, supra. The Satellite Laboratory franchise does not fall within the strict interpretation of the Howey and Gallion (supra) cases. For under this agreement the franchisee success or failure is not solely linked to the success or failure of I.D.T.C., but was substantially so linked. “Since the United States Supreme Court’s decision in Howey (supra) and the Alabama Supreme Court’s decision in Gallion (supra), the growing number of fraudulent schemes practiced on unwary investors has prompted courts throughout the country to re-examine the three-pronged test it suggests, (set forth above), and expand the definition in order to provide the protection the legislation intended.
“In S.E.C. v. Glenn W. Turner Enterprises, Inc., 474 Fed.[F.]2d [476] 482, the Ninth Circuit Court of Appeals stated:
‘We hold . . . that the definition of securities should be a flexible one, the word ‘solely’ should not be read as strict or literal limitation on the definition of an investment contract but rather must be construed realistically
‘We adopt a more realistic test, whether the efforts made by those other than the investor are undeniably significant ones, those essential managerial efforts which affect the failure or success of the enterprise.’
“In the Glenn Turner case Id. 477 the court further stated:
‘The very purpose of the statute would be violated if they were construed to apply only to the familiar and conventional transactions and were not capable of adaption to novel and irregular schemes fairly covered by the intent and text of the statutes.’ Thus, the Supreme Court has said that in interpreting these acts, ‘form should be disregarded for substance and the emphasis should be on economic reality.’
“In reversing a Georgia District Court, the Fifth Circuit Court of Appeals in S.E.C. v. Koscot Interplanetary, Inc. 497 Fed.[F.]2d 473 (1974), adopted the broader definition announced in Glenn Turner (supra). Judge Gwin writing for the Fifth Circuit Court of Appeals stated:
‘We confine our holding to those schemes in which promoters retain immediate control over the essential managerial conduct of an enterprise and where the investor’s realization of profits is inextricably tied to the success of the promotional scheme.’
“The Koscot case then stated the liberal interpretation intended by the Supreme Court in the Howey case:
‘the definition of securities, embodies a flexible rather than a static principle, one that is capable of adaption to meet the countless and variable schemes devised by those who seek the use of the money of others on the promise of profits.’ The Koscot case then went on to say:
‘We merely endorse a test which is resilient enough to encompass the egregious promotional schemes purveyed Koscot.’
“The language used by Judge Gwin reflects the true and proper intent of the Alabama Securities Act. That is to say, the state court merely endorses a test which is resilient enough to encompass the egregious promotional schemes purveyed by James E. Burke.
“It is obvious that neither the Alabama Securities Acts nor the Federal Securities Acts were designed to encompass a conventional franchise agreement, wherein the promoter exercises merely remote control over the franchisee and the franchisee conducts his business independently from the promoter.
“In the instant case the success of any one of I.D.T.C.’s franchisee was inextricably linked to the success of the whole I.D.T.C. operation. Without I.D.T.C.’s medical testing services (represented as ‘one of the country’s best laboratories with almost limitless capabilities, medical staff, market surveys, S.M.A.C. computer, financial assistance, licensing assistance’), an individual franchisee could not function. Thus, the franchisee had no practical control over the success or failure of his own franchise.
“Therefore, the sale of the Satellite Laboratory Franchise does fall within the scope of the expanded Howey test as set forth in the Glenn Turner case and the Koscot case and is an investment contract with the scope of the term ‘security’ as defined in the Alabama Securities Act.”

The enforcement provisions of the Alabama Securities Act are applicable only if the financial arrangement involved is a security. By statutory definition an “investment contract” is a security. An investment contract is not defined by statute. The test “universally followed” in determining what constitutes an investment contract was stated in Securities and Exchange Commission v. W. J. Howey Co., 328 U.S. 293, 66 S.Ct. 1100, 90 L.Ed. 1244 (1946).

“(A)n investment contract means a contract, transaction or scheme whereby a person invests his money in a common enterprise and is led to expect profits solely from the efforts of the promoter or a third party . . . .”
******
“The test is whether the scheme involves an investment of money in a common enterprise with profits to come solely from the efforts of others.” Howey, 66 S.Ct. at 1102 and 1104.

This test was adopted by the Alabama Supreme Court in Gallion v. Alabama Market Centers, Inc., 282 Ala. 679, 213 So.2d 841 (1968). Gallion is the only Alabama appellate case interpreting the definition of an investment contract. Gallion held that the merchandising method involved was not an investment contract because the profits the investor received were largely dependent upon his own efforts. Since the investor in the instant case, under both agreements, was required to exert more effort and engage in greater participation in producing any profits in which he would share than the investors in Gallion, the Trans-Lab License Agreement and the Satellite Lab License Agreement cannot be considered as securities.

In Gallion, a distributor (investor) received no compensation or commissions unless the persons to whom he delivered “purchase cards” made purchases at the defendant’s store. A supervisor (investor) received no money unless sales of merchandise were made to people who had received purchase authority cards from a distributor who had been “established” by that particular supervisor. Gallion, 282 Ala. at 684-5, 213 So.2d 841. The court stated that it was apparent that the commissions received by a distributor did not depend upon the efforts of third persons, but upon sales made by the defendant to customers procured through the distributor’s own efforts.

Under the Trans-Lab License Agreement, the investor was primarily responsible for the operation of the Medi-Test Trans-Lab Collection Station in his non-exclusive territory. After the first twelve months of operation he was required to produce a minimum gross sales of $2,000.00 per month of testing to be done by Medi-Test at its Birmingham laboratory. The investor was required to “devote full time, energy and effort to the management and operation of the collection station. Under the terms of the license agreement, the investor was an ‘independent agent’ ”.

Under the Satellite Program, even more “effort” was required by the investor. Brochures of the International Diagnostic Testing Corporation stated that “(t)he development of your expertise in sales and sales management is the key to your success— and ours. * * * Medi-Test has established a program whereby you, the Licensee, are not limited in either your authorization or your financial growth. Your profit is directly dependent on the efforts of you and your staff. * * * Licensees’ income is limited only by ambition, efficiency, and ability.”

In reaching this conclusion we recognize the criticism which a literal and mechanical interpretation of the Howey test has received. Securities & Exchange Commission v. Koscot Interplanetary, Inc., 497 F.2d 473 (1974); Securities & Exchange Commission v. Glenn W. Turner Enterprises, Inc., 474 F.2d 476 (9th Cir.), cert. denied, 414 U.S. 821, 94 S.Ct. 117, 38 L.Ed.2d 53 (1973). See also R. Freedman, An Analysis of The Franchise Agreement Under Federal Securities Laws, 27 Syracuse L.Rev. 919 (1976); B. Goodwin, Franchising In The Economy: The Franchise Agreement As a Security Under Securities Acts, Including 10b-5 Considerations, 24 Business Lawyer 1311 (1969); J. Long, An Attempt to Return “Investment Contracts” to the Mainstream of Securities Regulation, 24 Oklahoma L.Rev. 135 (1971); Comment, Franchises: Compelling Full Disclosure in Franchise Agreements, 5 Cumberland-Samford L.Rev. 919 (1975); Comment, What Is A Security? Howey, Turner Enterprises, and Franchise Agreements, 22 Kansas L.Rev. 55 (1973); Note, Franchise Sales: Are They Sales of Securities? 34 Albany L.Rev. 383 (1970); Note, Securities Regulation—Glenn Turner: Closer to Economic Realities, 52 North Carolina L.Rev. 476 (1973).

While the arguments against a literal interpretation of the Howey test are very persuasive, this Court is bound by the opinions of the Supreme Court of Alabama. Coalite, Inc. v. Aldridge, 285 Ala. 137, 229 So.2d 539 (1969); State v. Deaton, Inc., 355 So.2d 378 (Ala.Civ.App. 1978); Holmes v. State, 342 So.2d 28 (Ala.Cr.App.), cert. denied, 342 So.2d 36 (Ala. 1976).

Consequently, this judgment of conviction must be reversed and remanded on authority of Gallion. Under this holding, it is not necessary to treat the other issues raised by the defendant on this appeal.

REVERSED AND REMANDED.

All Judges concur.


author: EMBRY, Justice.

text:
    Ex parte State of Alabama. (Re: James E. BURKE v. STATE of Alabama).
    79-126.
    Supreme Court of Alabama.
    July 7, 1980.

      Charles A. Graddick, Atty. Gen. and Joseph G. L. Marston, III, Asst. Atty. Gen., for petitioner.
    Richard L. Taylor, Birmingham, for respondent.
    Thomas L. Krebs, Montgomery, Director of Alabama Securities Commission, Carolyn L. Duncan and Thomas R. McAlpine, Asst. Attys. Gen., Joseph C. Long, Pro hac vice, Norman, Okl., for Amicus Curiae.
   EMBRY, Justice.

Certiorari was granted in this case to reexamine this court’s holding in Gallion v. Alabama Market Centers, Inc., 282 Ala. 679, 213 So.2d 841 (1968), which very narrowly defined the term “investment contract” as that phrase is used in the Alabama Securities Act. We hold the term “investment contract” is to be more broadly defined than it was in Gallion; however, we find that this more flexible definition can only be applied prospectively and therefore affirm the Court of Criminal Appeals’ reversal of James E. Burke’s convictions.

A detailed statement of the facts of this case is set forth in the opinion of the Court of Criminal Appeals, 385 So.2d 643, and will not be restated here. James E. Burke, the defendant, was convicted in two cases for violating § 8-6-20, Code 1975: selling a security in an insolvent corporation. In each case the trial court found the so-called franchise agreements (Satellite Laboratory License Agreement and Trans-Lab License Agreement) the defendant was selling were investment contracts within the scope of the term security as defined in the Alabama Securities Act, § 8-6-2(10), Code 1975. Defendant was convicted in both cases. Both convictions were appealed to the Court of Criminal Appeals; those appeals were consolidated on motion of the defendant, with the consent of the State.

The Court of Criminal Appeals found the agreements sold by the defendant are not within the meaning of investment contract as defined in Gallion. The appellate court stated:

“The enforcement provisions of the Alabama Securities Act are applicable only if the financial arrangement involved is a security. By statutory definition an ‘investment contract’ is a security. An investment contract is not defined by statute. The test ‘universally followed’ in determining what constitutes an investment contract was stated in Securities and Exchange Commission v. W. J. Howey Co., 328 U.S. 293, 66 S.Ct. 1100, 90 L.Ed. 1244 (1946).
“ ‘(A)n investment contract means a contract, transaction or scheme whereby a person invests his money in a common enterprise and is led to expect profits solely from the efforts of the promoter or a third party . . .
* * * * * *
“ ‘The test is whether the scheme involves an investment of money in a common enterprise with profits to come solely from the efforts of others.’ Howey, 66 S.Ct. at 1102 and 1104.
“This test was adopted by the Alabama Supreme court in Gallion v. Alabama Market Centers, Inc., 282 Ala. 679, 213 So.2d 841 (1968). Gallion is the only Alabama appellate case interpreting the definition of an investment contract. Gallion held that the merchandising method involved was not an investment contract because the profits the investor received were largely dependent upon his own efforts. Since the investor in the instant ease, under both agreements, was required to exert more effort and engage in greater participation in producing any profits in which he would share than the investors in Gallion, the Trans-Lab License Agreement and the Satellite Lab License Agreement cannot be considered as securities.”

We hold the appellate court was correct in its finding that the agreements sold by the defendant were not investment contracts as defined in Gallion and therefore are not securities within the meaning of the Act as previously interpreted. Thus, the appellate court was correct to reverse defendant’s convictions. We hold, however, that “investment contracts” shall be defined in the future much more broadly than defined in Gallion.

In Gallion, this court adopted the definition of the term investment contract as stated by the Supreme Court in Securities and Exchange Commission v. W. J. Howey Co., 328 U.S. 293, 298, 299, 66 S.Ct. 1100, 1103, 90 L.Ed. 1244 (1946):

“ * * * In other words, an investment contract for purposes of the Securities Act means a contract, transaction or scheme whereby a person invests his money in a common enterprise and is led to expect profits solely from the efforts of the promoter or a third party, it being immaterial whether the shares in the enterprise are evidenced by formal certificates or by nominal interests in the physical assets employed in the enterprise. * sH *

Taking the above definition, the Gallion court concluded the test for determining if an investment contract is a security is to conclude that it is when the scheme involves an investment of money in a common enterprise with profits to come solely from the efforts of others.

Gallion relied on Howey because Tit. 53, § 36(j), Code 1940, was identical to its federal counterpart: § 2(1) of the Securities Act of 1933 (15 U.S.C., § 77b(l)). Title 53, § 36(j) of the Code of 1940, was incorporated into the Code of 1975 with virtually no change and is now § 8-6-2(10). It reads as follows:

“(10) Security. Any note, stock, treasury stock, bond, debenture, evidence of indebtedness, certificate of interest or participation in any profit-sharing agreement, collateral-trust certificate, preor-ganization certificate or subscription, transferable share, investment contract, voting-trust certificate, certificate of deposit for a security, certificate of interest or participation in an oil, gas or mining title or lease or in payments out of production under such a title or lease, annuity contract unless issued by an insurance company, bankers’ shares, trustees’ shares, investment participating bonds, investment trust debentures, units, shares, bonds and certificates in, for, respecting or based upon any form of securities or collateral, subscriptions and contracts covering or pertaining to the sale or purchase on the installment plan of any security as herein defined, or subscription or contracts covering or pertaining to the sale or purchase of beneficial interest in title to property, profits or earnings, or any right to subscribe to any of the foregoing or any instrument of any kind commonly known as a security.”

In federal cases following Howey, it became apparent the use of the word “solely” in defining investment contracts created problems. See, e. g., Securities and Exchange Commission v. Glenn W. Turner Enterprises, Inc., 474 F.2d 476 (9th Cir. 1973); Lino v. City Investing Co., 487 F.2d 680 (3rd Cir. 1973); Securities and Exchange Commission v. Koscot Interplanetary, Inc., 497 F.2d 473 (5th Cir. 1974). In these cases, those respective courts held that the U.S. Supreme Court in Howey did not intend to set up a static principle incapable of flexibility, but, instead, intended to set up a flexible definition of investment contract which is capable of adaptation to meet the countless, and variable, schemes devised by those who seek the use of money belonging to others on the promise of profits. Id. We agree.

In Howey, the court made the following statement after it attempted to define an investment contract:

“ * * * Such a definition necessarily underlies this Court’s decision in Securities Exch. Commission v. C. M. Joiner Leasing Corp., 320 U.S. 344, 64 S.Ct. 120, 88 L.Ed. 88, and has been enunciated and applied many times by lower federal courts. It permits the fulfillment of the statutory purpose of compelling full and fair disclosure relative to the issuance of ‘the many types of instruments that in our commercial world fall within the ordinary concept of a security.’ H.Rep. No. 85, 73rd Cong., 1st Sess., p. 11. It embodies a flexible rather than a static principle, one that is capable of adaptation to meet the countless and variable schemes devised by those who seek the use of the money of others on the promise of profits. * * * ” 328 U.S. at 299, 66 S.Ct. at 1103 (Emphasis added.)

Similarly, the Supreme Court in Tcherepnin v. Knight, 389 U.S. 332, 338, 88 S.Ct. 548, 554, 19 L.Ed.2d 564 (1967), stated:

“ * * * As this Court observed with respect to the definition of security in § 2(1) of the Securities Act of 1933, ‘the reach of the Act does not stop with the obvious and commonplace.’ S. E. C. v. C. M. Joiner Leasing Corp., 320 U.S. 344, 351, 64 S.Ct. 120, 123, 88 L.Ed. 88 (1943). As used in both the 1933 and 1934 Acts, security ‘embodies a flexible rather than a static principle, one that is capable of adaptation to meet the countless and variable schemes devised by those who seek the use of the money of others on the promise of profits.’ S. E. C. v. W. J. Howey Co., supra, 328 U.S. 299, 66 S.Ct. at 1103. * * * ”

Likewise, in United Housing Foundation, Inc. v. Forman, 421 U.S. 837, 95 S.Ct. 2051, 44 L.Ed.2d 621 (1975), the court concluded there is basically no distinction, for definitional purposes, between a security and an investment contract; therefore, both terms embody flexible principles. The court, in United Housing Foundation, Inc., supra, further stated:

“ * * * This test [Howey test], in shorthand form, embodies the essential attributes that run through all of the Court’s decisions defining a security. The touchstone is the presence of an investment in a common venture premised on a reasonable expectation of profits to be derived from the entrepreneurial or managerial efforts of others. * * * ” (Emphasis added.) 421 U.S. at 852, 95 S.Ct. at 2060.

It is clear to us that the definition of, or test for, an investment contract was intended by the Howey court to be more flexible and broader than the court actually stated. Likewise, we find this court, in Gallion, intended to adopt a test which would meet the economics realities of the investment and business world. We, therefore, elect to modify the definition or test set forth in Gallion. We hold the true test for determining whether a contract, transaction, or scheme, is an investment contract is:

“ * * * the presence of an investment in a common venture premised on a reasonable expectation of profits to be derived from the entrepreneurial or managerial efforts of others. * * * ” United Housing Foundation, Inc., supra, at 852, 95 S.Ct. at 2060.

We further find the critical inquiry, incorporated into this test, to be:

“ * * * whether the efforts made by those other than the investor are the undeniably significant ones, those essential managerial efforts which affect the failure or success of the enterprise.” Glenn W. Turner Enterprises, Inc., supra, at 482. See also Koscot Interplanetary, Inc., supra.

We agree with the United States Court of Appeals for the Third Circuit:

“ * * * an investment contract can exist where the investor is required to perform some duties, as long as they are nominal or limited and would have ‘little direct effect upon receipt by the participant of the benefits promised by the promoters’ * * *Lino, supra at 692.

We hold, therefore, the test for, or definition of, an investment contract, as we have stated it in this opinion, shall apply prospectively only, from the date of this decision. To hold otherwise would result in a violation of the Due Process Clause requirement that a statute give fair warning of the conduct which it prohibits. See Douglas v. Buder, 412 U.S. 430, 93 S.Ct. 2199, 37 L.Ed.2d 52 (1973); Bouie v. City of Columbia, 378 U.S. 347, 84 S.Ct. 1697, 12 L.Ed.2d 894 (1964).

For the reasons stated, the reversal of the judgments of conviction of James E. Burke by the Court of Criminal Appeals is hereby affirmed.

AFFIRMED.

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


text:
    Dock HAND, Jr. v. STATE.
    3 Div. 237.
    Court of Criminal Appeals of Alabama.
    June 30, 1980.
    Eric A. Bowen of Hemphill & Hayes, Montgomery, for appellant.
    Charles A. Graddick, Atty. Gen., and J. T. Simonetti, Jr., Asst. Atty. Gen., for appel-lee.
   BOWEN, Judge.

The defendant was charged in a two count indictment for the offenses of second degree burglary of the Baldwin Junior High School in Montgomery County and the grand larceny of seven speakers. A jury convicted him of grand larceny as charged. The trial court sentenced the defendant to five years’ imprisonment.

In its oral charge to the jury the court instructed on the principles of aiding and abetting. Defense counsel reserved an exception to this portion of the charge “as not being hypothesized by the evidence.”

The record shows that counsel s exception to the oral charge of the trial court was made after the jury had retired to the jury room to begin their deliberations. The trial court made no response to this exception.

The exception was untimely.

“Time after time this court has held that exceptions to the oral charge must be made in the presence of the jury and prior to their retirement in order that the court may correct any error. The defendant and his counsel have the burden of stating objections to the oral charge before the jury retires to determine the verdict, [citations omitted] Absent a timely objection there is nothing for this court to review.” Van Antwerp v. State, 358 So.2d 782, 787 (Ala.Cr.App.), cert. denied, 358 So.2d 791 (Ala.1978).

The defendant was caught “red-handed” with the speakers and only convicted of grand larceny. The jury acquitted him of the burglary charge. Under these circumstances we fail to see how the judge’s charge on aiding and abetting prejudiced the defendant even if unsupported by the evidence. Mack v. State, 348 So.2d 524, 529 (Ala.Cr.App.1977).

We have examined the record as required by law and have found no error prejudicial to the defendant. The judgment of the Circuit Court is affirmed.

AFFIRMED.

All Judges concur.


author: HARRIS, Presiding Judge.

text:
    James Floyd SMELCHER v. STATE.
    7 Div. 735.
    Court of Criminal Appeals of Alabama.
    June 30, 1980.

      Charles L. Parks, Anniston, for appellant.
    Charles A. Graddick, Atty. Gen., and Thomas R. Allison, Asst. Atty. Gen., for appellee.
   HARRIS, Presiding Judge.

The appellant was indicted by the Grand Jury of Calhoun County for the offense of rape. At arraignment he entered a written plea of not guilty. A jury found the appellant guilty as charged. The trial court entered judgment accordingly and sentenced appellant to a term of fifteen years in the penitentiary. Appellant was represented by court-appointed counsel at all proceedings in the trial court, and is so represented in this court by same counsel.

This was the second trial for the appellant on this offense. A mistrial was declared by the trial court at the conclusion of the first trial when the jury was unable to agree on a verdict.

The appellant challenged the sufficiency of the evidence by filing a written motion to exclude the evidence at the close of the State’s evidence and again at the conclusion of the defense evidence.

According to the State’s evidence the prosecutrix was employed as a waitress for the Alley Restaurant and Lounge in Anni-ston, Alabama at the time of this offense. Jim Kaufmann, who had dated the prosecu-trix several times, was the drummer for the musical group playing at the Alley Lounge. Shortly after the 12:00 midnight closing time of the Alley, on March 12, 1978, the prosecutrix asked Mr. Kaufmann if he would like to go smoke some marijuana. As Mr. Kaufmann and the prosecutrix were leaving through the back entrance to the Alley, they were stopped by the appellant in the parking lot. The prosecutrix continued on to Mr. Kaufmann’s panel truck parked next to her automobile. The appellant, a friend of Mr. Kaufmann, asked him if they wanted to go to breakfast. Mr. Kaufmann declined but asked the appellant to come along with him and the prosecutrix. Mr. Kaufmann testified he asked the appellant to come along with him because, “I thought Floyd (the appellant) was drunk and I didn’t want to go with him.”

All three left the Alley in Kaufmann’s panel truck with Kaufmann driving, the prosecutrix in the passenger seat, and appellant sitting on a cushion or tire to the middle rear of them. The appellant suggested they go to a wooded area near Jacksonville called Bald Rock to smoke the marijuana.

The prosecutrix was the only one of the three to take along any alcoholic beverage. She had a half filled glass of bourbon and coke.

Upon arriving at Bald Rock they smoked the only two “joints” of marijuana the pros-ecutrix had. Kaufmann stated that the appellant was “kind of incoherent” while at Bald Rock.

While they were smoking the second “joint” the victim stepped outside and to the rear of the truck to urinate. She was wearing a one piece jumpsuit and had to unzip and take the top off. This particular area was dark with no lighting. No one else got out of the truck.

After spending about thirty minutes at Bald Rock they headed back to the Alley, stopping only at a convenience store to obtain some grapefruit juice for the prosecu-trix. There had been no sexual contact between either of the three at Bald Rock.

As they arrived back at the Alley parking lot, Mr. Kaufmann pulled the truck up to the prosecutrix’s automobile. The appellant exited the truck and got into his car. Kaufmann and the prosecutrix sat and talked in the truck for a few minutes. The prosecutrix then got into her car and Kauf-mann drove off. A« Kaufmann drove off he noticed the appellant was sitting in his car in the corner of the parking lot.

The prosecutrix testified that as she came out of the parking lot and turned right onto 12th Street she saw the appellant come out from the back of the Alley and turn left onto 12th Street. As they passed each other going in opposite directions the prosecu-trix threw up her hand and waved to the appellant. The appellant made a U-turn and started following her. She took a left turn onto Quintard, a four-lane highway, and remained in the left lane. The appellant pulled up beside her in the right lane and started honking his horn. She testified:

“He started blowing the horn and I kept driving and he kept blowing the horn and I pushed the button and raised the window down and asked him what he wanted. He told me to pull over and I told him I couldn’t I had to go home. So I went on, went a little faster, and he kept going faster and he kept blowing the horn and I kept going and the window was still down. He said for me to pull over, he had something important to tell me, to talk to me about. I kept going and I went — well, he was right even with me. I was going pretty fast trying to get home and we topped the hill right there below K-Mart, right there on the hill, and he told me to pull over in K-Mart parking lot and I told him no, and I kept going.”

They continued past K-Mart and approached the Highway 431 turnoff to Gadsden where she was intending to turn left for home. The appellant was still blowing his horn. She stated:

“Well, I had pushed the gas a little bit faster and he was going real fast right around even with me because he was in the right lane and he blowed the horn and told me just to pull over. And he wanted to tell me something and so I pulled — my house was about a block away and I pulled over at Five Points.”

Five Points was an area of several stores. The prosecutrix later testified she stopped for him because she did not want him to follow her home and know where she lived. She also thought he wanted to tell her something about Jim Kaufmann.

The appellant pulled in the Five Points area behind the prosecutrix and parked straight in. She turned and backed in to align her driver’s window with his driver’s window so he would not have to get out of his automobile. At this point things began to happen fast. The appellant walked over and reached through the half opened window, unlocked the door, and opened it. She further testified:

“He told me to move over and I wouldn’t move over and so he started pushing me over and I was pushing him back, telling him he wasn’t going to get in, if he had to talk to me, to talk me (sic). He kept pushing on me and he was using his knees and I was pushing back and then he was using his whole body and kind of sitting on my shoulders pushing me over and I was pushing back at him. He pushed real hard and I went over — fell over sideways in the seat and at the same time he pushed me over. At the same time he pushed me over, I grabbed the keys out of the ignition.”

They wrestled over the keys and he jerked them away slightly cutting or scratching her hand in the process. The prosecutrix screamed and he hit her in the mouth causing “a little puffiness and a small cut.” The appellant then attempted to crank the automobile. She continued to wrestle with him in an attempt to turn the ignition off. The appellant told the prosecutrix “if I screamed again he was going to run the car into the G.D. wall.” She then stated:

“Well, I just sat there for a little. I was kind of scared. I thought he would just sit there and talk and he got the keys and started toward the ignition, and when he started to crank it, I turned it off and he turned it on and I’d turn it off. Then he slung back his arms and he pushed me back and he had the car cranked and when he put it in gear he was mashing the gas and I was mashing and kicking his feet to hit the brakes and he told me to settle back or I was going to get hurt.”

The prosecutrix estimated the time was about 2:00 a. m. when the above took place. She testified that while this incident was happening a Volkswagen pulled up, someone put newspapers in a paper box, and then drove off. She did not try to attract his attention as she was afraid.

The appellant drove them back toward town in her mother’s automobile. Because she was not certain he was familiar with the area she tried to give him directions that would take them back to the Saks area near her home. When that didn’t work she kept trying to talk him into taking her back.

The appellant finally pulled into Edge-mont Cemetery. This was an area with very little light behind a garage and near a junkyard. The prosecutrix testified that, “He turned the car off and he turned the emergency flashers on, and I turned them off by instinct. I don’t know why I done it at the time, but I just did it.” The appellant began making sexual advances at the prosecutrix. When she resisted the advances, he pushed her down in the seat. He started pulling her jacket off and partially unzipped her one-piece outfit. She tried to pull the zipper back up. Appellant threatened to hurt the prosecutrix if she continued to resist. The victim testified, “Well, I was scared. I wasn’t really fighting. I was just trying — I wasn’t going along with it, you know, but I was scared.”

The appellant ordered the prosecutrix to take her clothes off and he assisted her in doing so. He then performed an act of oral sex on the prosecutrix followed by an act of sexual intercourse. She testified:

“I was starting to cry some. I was still laid back. I had my arm in the seat and the other one was on the side of me and he told me to put my arms around him, and I wouldn’t do it. He said, ‘Put your G.D. arms around me’, and I just laid it on top of his back. I didn’t hug him; I just laid it there.”

The prosecutrix testified she did not consent to the sexual acts.

When appellant finished he wanted to sit and talk for a while. Because of the prose-cutrix’s fear at this time she told the appellant, she would give him her phone number and she would not tell “Jim Kaufmann or anybody else about” this incident. She also told him she enjoyed the sexual act to appease him, i. e., “just anything to take me back to the car.”

The appellant finally took her back to her automobile at Five Points. This was at approximately 3:00 a. m. She drove directly home and entered the back door of her residence. She went directly to the bathroom, removed her clothes and washed.

The prosecutrix then entered the bedroom she shared with her sister, Sheila Davidson Beal, lit a candle, sat on the edge of the bed, and began crying. Her sister was awakened by the crying. She told her sister what had happened. Her mother and Mrs. Elaine Gibson took her to the doctor approximately twenty minutes after she arrived home.

Mrs. Elaine Gibson testified she slept on a sofa at the prosecutrix’s house on the night in question. She was awakened by the sound of the back door opening at approximately 3:00 a. m. Approximately fifteen or twenty minutes later she heard voices and got up off the sofa to investigate. She then saw the prosecutrix. “I noticed that she had a puffy lip and that there was a cut on her lip and I asked her what happened. She was quite upset, she was crying.” She then took her to the hospital.

Sheila Davidson Beal testified that she saw her sister in the bedroom they shared at about 3:00 a. m., on the morning in question. The prosecutrix was sitting on the bed, upset and crying. Mrs. Beal testified that “she told me that she had been raped.”

The testimony of the appellant was in sharp conflict with the State’s evidence. Appellant testified that the prosecutrix, Jim Kaufmann, and he had smoked two “joints” at Bald Mountain near Jacksonville. He testified he had a few drinks that night but he “wasn’t real drunk Just a little tipsy.” Appellant stated that while at Bald Mountain the prosecutrix got out of the truck. He saw and heard her “use the restroom.”

The conflict in the testimony appears when both appellant and the victim were leaving the parking lot at the Alley. As he passed her going the opposite way, she blew the horn at him and waved to get him to follow her. He turned around and followed. He blew his horn at her several times and she would throw her hand up and motion. He hollered out the car window and asked what she wanted. She never answered, just motioned. She finally pulled in at the House of Chen. She backed her automobile up and he pulled straight in. Appellant got out of his automobile and stood at her car door talking for about five or ten minutes. The victim asked him to go smoke a “joint” so he “opened the door and slid in.” Sex was never brought up in the conversation. He denied that he forced his way in her automobile, that he hit her in the mouth, that he cut her hand with a key, or that she ever screamed. He was already in her car when the paperman pulled up. This was “a minute or two” after she and he arrived.

Appellant testified they did argue over who was going to drive and he won the argument. He drove them to an area behind Puls garage where he used to work in the body shop. He parked on or near a road and turned his flashing lights on in order to guard against anyone coming down the road running into them. He inferred she turned the flashing lights off because she didn’t want to get caught smoking marijuana. She never told him to take her back to Five Points.

They smoked a “joint” there. After that “we sat there and she slid over beside me and we was sort of making out and all.” He never thought about having sex with her until she slid over next to him. The appellant proceeded to have sexual intercourse with her. He testified she never resisted or cried, and that she responded to him. He denied making any threats or that he had oral sex with her. She told him she enjoyed their act of sex. The prosecutrix also told him not to tell Jim Kaufmann.

In order to support a prima facie case of rape the following elements must be shown: (1) Carnal knowledge, (2) committed forcibly, and (3) without consent. § 13-1-131, Code of Alabama 1975. In this case the act of sexual intercourse was admitted by the appellant. He contends the act was committed without force and with consent.

In determining whether the State presented a prima facie case we are required to take the evidence in its most favorable light for the prosecution. Renfroe v. State, Ala.Cr.App., 382 So.2d 627, cert. denied, Ala., 382 So.2d 632 (1980). The evidence for the State revealed the following pertinent facts:

1. The appellant physically forced his way into the prosecutrix’s automobile.
2. The appellant hit the prosecutrix in the mouth.
3. The appellant jerked the prosecutrix’s automobile key away cutting or scratching her hand in the process.
4. The appellant drove the prosecutrix away in her automobile against her will.
5. The appellant sexually ravished the prosecutrix against her consent and resistance.
6. The appellant threatened the prosecu-trix with bodily harm.
7. The prosecutrix was continually fearful and afraid of the appellant.

The trial record is replete with testimony for the State that the appellant committed an unlawful carnal knowledge upon the prosecutrix forcibly and without her consent. A prima facie case was presented. Struggs v. State, Ala.Cr.App., 872 So.2d 49, cert. denied, Ala., 372 So.2d 55 (1979); Collins v. State, Ala.Cr.App., 364 So.2d 368, cert. denied, Ala., 364 So.2d 374 (1978). Even though the evidence was in sharp conflict the trial court correctly presented the issue of the appellant’s guilt or innocence to the jury. As stated in Gilmore v. State, Ala.Cr.App., 358 So.2d 501, 503 (1978):

“Where the evidence is contradictory, a jury question is presented. The jury may believe or disbelieve all or any part of the testimony presented by either side. Harris v. State, Ala.Cr.App., 333 So,2d 871 (1976); Williams v. State, 51 Ala.App. 1, 282 So.2d 349, cert. denied 291 Ala. 803, 282 So.2d 355.”
As this court stated in Williams, supra: “ ‘The fact that essentially all of the evidence against the appellant was from the testimony of the prosecutrix does not vitiate the conviction. A jury that will believe the uncorroborated testimony of the prosecutrix, beyond a reasonable doubt, can convict a defendant of rape, Barnett v. State, 83 Ala. 40, 3 So. 612, or of any lesser included offense. Title 14, Section 42, Code of Alabama 1940; Kelsoe v. State, [50 Ala.App. 378, 279 So.2d 549, cert. den., 291 Ala. 786, 279 So.2d 552] supra, and authorities therein cited.’ ”

The appellant next contends the trial court erroneously admitted testimony of the prosecutrix’s sister concerning the complaint made by the prosecutrix. Mrs. Beal testified that she was awakened in her bedroom by the crying of the prosecutrix. The following testimony then occurred:

Direct Examination by Mr. Hubbard:
“Q. Did she tell you what had happened to her?
“A. Told me she was raped.
“THE COURT: That’s not his question.
“MR. PARKS: It got out. We ask that it be stricken and that they be instructed to disregard it.
“MR. HUBBARD: Judge, if I might argue the point—
“MR. PARKS: Not in the presence of that Jury .
“THE COURT: Just a moment. Her answer was not in response to the question. I’ll sustain the objection and instruct the Jury that the last part of this witness’ answer was not proper, that is she didn’t answer the question that was asked and as such I’m instructing you as members of the Jury to disregard that last statement that was made. You are to exclude it from your minds, totally exclude it from your consideration in the case. I’m going to ask you can do that (sic). I’m going to do it this way; I’m going to say is there any member of the Jury that cannot exclude that from your consideration in the case, to raise your hand. Let the record show that there are no hands raised.
“All right, we’ll proceed. Just answer the very specific question that is asked of you.
“MR. HUBBARD: Your Honor, may we approach the bench?
“THE COURT: All right.”

A hearing was then held out of the jury’s presence on this issue. After hearing arguments the trial court made the following ruling:

“The Court is going to allow the present witness Sheila Davidson Beal to testify for purposes of corroboration that her sister made a complaint to her, I take it, to the effect saying that the alleged victim had been raped. I’m not going to allow her to go any further than that or into any of the details or as to the identity of the alleged perpetrator thereof. Mr. Parks.”

Direct examination then continued in the presence of the jury. From the record:

“BY MR. HUBBARD:
“Q. Mrs. Beal, when you saw your sister, I believe you said you saw her crying there in the bedroom; is that correct?
“A. Yes, sir.
“Q. Now, then, did she make any statement as to what had happened or what was wrong with her?
“A. Yes, sir.
“Q. Tell the Ladies and Gentlemen of the Jury, if you would, what she told you had happened to her.
“A. She told me that she had been raped.”

No particulars of the complaint were testified to.

In Waters v. State, 55 Ala.App. 646, 318 So.2d 342, 345, cert. denied, 294 Ala. 773, 318 So.2d 346 (1975), it is stated:

“The State may on direct examination of the prosecutrix prove the bare fact that she made immediate complaint of being raped and when and to whom, and she may be corroborated by the person or persons to whom she complained as to the same fact.” (citations omitted)

The appellant claims in brief this proposition of law has no application in this case because the prosecutrix “testified to no complaint per se.”

The following testimony occurred on direct examination of the prosecutrix by the State concerning what occurred after the prosecutrix entered the bedroom she shared with her sister:

“Q. Does anybody share that room with you?
“A. Yes, sir, my sister.
“Q. What is her name?
“A. Sheila Davidson — Beal, now.
“Q. That’s the one a year younger than you?
“A. Yes, sir.
“Q. Did you tell her about this incident?
“A. Not at first. She woke up—
MR. PARKS: I’ve got no objection so far.
“Q. Let me ask you this first. Was she up there in the room?
“A. No, sir.
“Q. What — How did she get up, if she did? Did you wake her?
“A. I didn’t wake her. I was crying and she woke up and heard me crying.
“Q. Did you tell her at that time anything had happened?
“A. Yes.
“Q. Did you tell anybody else there in the household?
“A. Not at that time.”

We believe the plain meaning of the prose-cutrix’s testimony to be such that ordinary reasonable jurors could infer the prosecu-trix told her sister she had been raped.

In addition, her sister was the first person she spoke to after the incident and the statement took place less than twenty minutes after the prosecutrix arrived home. We find in Gamble, McElroy’s Alabama Evidence, § 178.01 (3rd Ed. 1977): “Complaints . . may be testified to either by the victim or by other third party witnesses.” It was proper to receive the prose-cutrix’s sister’s testimony as proof of the fact that the prosecutrix did make the complaint of rape. Price v. State, 41 Ala.App. 239, 128 So.2d 109 (1961).

Lastly the appellant complains the trial court erroneously permitted the State’s witness Mrs. Elaine Gibson to testify as to the prosecutrix’s appearance after she arrived home, i. e., “I noticed she had a puffy lip and that there was a cut on her lip and I asked her what happened.” This testimony was made as the result of the personal observation of the prosecutrix by Mrs. Gibson soon after the incident occurred. There is no testimony here that the prosecutrix made complaint of rape to Mrs. Gibson. This was corroborative of the testimony by the prosecutrix that the appellant had hit her in the mouth. See: Collins v. State, Ala.Cr.App., 365 So.2d 113, cert. denied, Ala., 365 So.2d 113, cert. denied, Ala., 365 So.2d 116 (1978). It is competent evidence to show the sign of injury on the person of the prosecutrix. Malloy v. State, 209 Ala. 219, 96 So. 57 (1923); Scott v. State, 48 Ala. 420 (1872).

We have carefully searched the record for errors injuriously affecting the substantial rights of the appellant and have found none. The judgment of conviction is affirmed.

AFFIRMED.

All the Judges concur.


author: PER CURIAM.

text:
    Odie Bell DANIELS, etc., Appellant, v. Malcolm H. WEISS, M.D., et al., Appellees. Odie Bell DANIELS, etc., Appellant, v. Arnold A. OPER, M.D., Appellee.
    Nos. 78-1626, 78-1627.
    District Court of Appeal of Florida, Third District.
    April 8, 1980.
    As Corrected On Denial of Rehearing July 21, 1980.

      Stanley M. Rosenblatt, Greene & Cooper and Robyn Greene, Miami, for appellant.
    Howard E. Barwick and David L. Wills, Miami Shores, Preddy, Kutner & Hardy, Daniels & Hicks and Sam Daniels, Miami, for appellees, in both cases.
    Before BARKDULL and BASKIN, JJ., and EZELL, BOYCE F., Jr. (Ret.), Associate Judge.
   PER CURIAM.

In this medical malpractice action, Odie Bell Daniels, the plaintiff, appeals post trial orders directing a verdict for defendant, Dr. Weiss, and granting defendant, Dr. Oper, a new trial as to damages.

Frank Daniels, a diabetic, injured his left foot on Thursday, December 5, 1974 while he was at work. On Saturday, December 7, he went to defendant Dr. Weiss to have his foot treated. Dr. Weiss suggested that he be hospitalized immediately. Daniels did not want to go but agreed to stay home, rest over the weekend and take the prescribed medication. When Daniels again visited Dr. Weiss on Monday, December 10, Dr. Weiss immediately referred him to Parkway General Hospital where Dr. Weiss was admitted to practice. However, Daniels insisted upon being admitted to North Dade General where he was treated by defendant Dr. Oper. Subsequently, his left leg was amputated below the knee by Dr. Anderson. Thereafter, Daniels filed a complaint for negligence against Drs. Weiss and Oper and basically alleged that as a result of the failure to render prompt and adequate treatment upon his admission, instead of a transmetatarsol amputation of his foot (below the ankle) that may have been sufficient with proper care and treatment, he lost his left leg below the knee. Sometime after Daniels filed his complaint, the trial court permitted an amendment to allow his wife Odie to add her derivative claim for loss of consortium. Mr. Daniels died shortly before trial from causes unrelated to the malpractice and Odie Daniels was substituted as personal representative. The cause proceeded to trial. The jury found Dr. Weiss to be 1% negligent and Dr. Oper 99% negligent and awarded $300,000 to Odie Daniels, as personal representative of her husband’s estate, and $90,000 for Odie Daniels personally on her derivative claim. Thereafter, Dr. Weiss filed a renewed motion for directed verdict and Dr. Oper motions for remittitur and/or new trial. After hearing argument of counsel, the trial court entered a directed verdict for Dr. Weiss on the ground of insufficiency of the evidence. The court also granted Dr. Oper’s motion for remittitur or, in the alternative, a new trial on the issue of damages for the reason that the verdicts were excessive. In this order, the court reasoned that the jury might have been influenced by the presentation of Daniels’ counsel during closing argument and after setting out some of his remarks, concluded:

******
“With this angry and indignant rejection of the Defendants and the treatment and care rendered to Mr. Daniels by them, the foregoing excerpts from the trial transcript are among those that, in the opinion of this Court, inflamed and prejudiced the jury to such an extent that they returned a damage award in the exact amount requested by Plaintiff’s counsel of $300,000.00 for the Estate of Mr. Daniels and $90,000.00 for Mrs. Daniels; a damage award which in this Court’s opinion were based on prejudice or passion to to such an extent that it constituted punitive damages or was punitive in nature and did not bear a reasonable relation to the damages and injuries suffered and were so grossly excessive as to shock the judicial conscience of this Court.”
******

Odie Daniels refused to accept the remit-titur and a new trial on the issue of damages was ordered. She then perfected the present appeals from the orders directing a verdict for Dr. Weiss and granting Dr. Oper a new trial. Dr. Oper cross-appeals the order allowing the complaint to include Odie Daniels’ personal claim for loss of consortium.

We first consider Dr. Oper’s argument on cross-appeal that the court erred in denying his motion for summary judgment as to the claim of Odie Daniels for loss of consortium on the ground that the statute of limitations had run. We find this point to be well taken.

An amendment to the pleadings does not relate back to the date the original complaint was filed if the amendment states a new cause of action or adds a new party. Cox v. Seaboard Coast Line R. Co., 360 So.2d 8 (Fla.2d DCA 1978); Doyle v. Shands Teaching Hospital and Clinics, 369 So.2d 1020 (Fla. 1st DCA 1979). Although a claim for loss of consortium is a derivative cause of action, it nevertheless is a separate action. See: Gates v. Foley, 247 So.2d 40 (Fla.1971). The applicable two-year statute of limitations [Section 95.11(6), Florida Statutes (1973)] having already run at the time Odie Daniels filed the complaint seeking damages for loss of consortium, the trial court erred in denying Oper’s motion for summary judgment as to said claim. Therefore, the $90,000.00 verdict for loss of consortium cannot stand as to Dr. Oper.

We now turn our concern to the issues raised by Odie Daniels on appeal as they pertain to Dr. Oper.

She first argues that the court erred in finding both verdicts excessive. In light of our adverse disposition of her personal claim for loss of consortium (and $90,000 verdict thereon) on cross-appeal, we need only consider this argument with reference to the $300,000 verdict.

Before a new trial as an alternative to a remittitur may be entered either the record must affirmatively show the impropriety of the verdict or there must be an independent determination that the jury was influenced by considerations outside the record. Wackenhut Corp. v. Canty, 359 So.2d 430 (Fla.1978); Cassat Avenue Mobile Homes, Inc. v. Bobenhausen, 363 So.2d 1065 (Fla.1978). Further, a jury verdict should not be disturbed unless it is so inordinately large as obviously to exceed the maximum limit of a reasonable range within which the jury may properly operate. Bould v. Touchette, 349 So.2d 1181, 1184-85 (Fla.1977). In the instant case, there was no evidence offered as to loss of wages or earning capacity and medical bills. The single element of damages claimed was for Mr. Daniels’ pain, suffering, disability, disfigurement, mental anguish and loss of his capacity for the enjoyment of life. In this class of cases the determination of the amount of damages is a matter particularly within the province of the jury to decide inasmuch as pain and suffering have no market price, are not capable of being exactly and accurately determined and have no standard whereby damages can be measured. See Corbett v. Seaboard Coastline R. Co., 375 So.2d 34, 37 (Fla.3d DCA 1979); 17 Fla.Jur.2d Damages § 41 (1980) and cases cited therein. We do not find the $300,000 verdict as the amount of damages for Daniels’ pain and suffering, disfigurement, etc., to be so inordinately large as to exceed the maximum limit of a reasonable range within which the jury may properly operate and thus the verdict should not have been disturbed. It appears that the basis for the trial court’s order for remittitur or, in the alternative, a new trial was that he disagreed with the amount of the verdict which was the amount requested by Daniels’ counsel. Mere disagreement or the fact the verdict is the same amount as requested is not enough to warrant reversal. See Corbett v. Seaboard Coastline R. Co., 375 So.2d 34 (Fla.3d DCA 1979), supra, and Allred v. Chittenden Pool Supply, Inc., 298 So.2d 361 (Fla.1974).

Finally, in light of the wide latitude accorded counsel in making arguments to the jury, we fail to see how the remarks complained of were of such an inflammatory character as to mandate a new trial. See Metropolitan Dade County v. Dillon, 305 So.2d 36 (Fla.3rd DCA 1974). We therefore, conclude that the court erred in ordering a new trial.

Daniels also urges as reversible error the granting of Dr. Weiss’ and Argonaut’s renewed motion for directed verdict. The law is well settled that a directed verdict should not be entered for a defendant in a negligence action unless the plaintiff cannot recover under any reasonable view of the evidence; even where the evidence is not in dispute, when conflicting reasonable inferences may be drawn from the admitted facts, questions of negligence and negligence causation are peculiarly questions of fact which should be determined by the jury. Cooper v. Fenton Brace & Limb Company, Inc., 350 So.2d 1106 (Fla.3d DCA 1977). The record reflects that there was conflicting evidence on the question of negligence causation precluding the entry of a directed verdict. Neither are we persuaded by Dr. Weiss’ contention that Dr. Oper’s negligence was an independent intervening cause which absolves him from liability. Dr. Weiss cannot escape liability simply because a second physician had the opportunity to correct the initial negligent acts but failed to do so. See e. g., Variety Children’s Hospital v. Osle, 292 So.2d 382 (Fla.3d DCA 1974). Thus, we find error in the entry of a directed verdict for Dr. Weiss and Argonaut Insurance Co.

For the reasons stated, the orders granting a new trial and directing a verdict are reversed and the cause remanded to the trial court with directions to reinstate the verdict against Dr. Weiss and Argonaut Insurance Co. As to the defendant, Dr. Oper, we direct the trial court to reinstate the $300,000.00 verdict for Odie Daniels (as personal representative of the estate of her deceased husband, Frank) and to strike the $90,000.00 verdict for Odie Daniels personally.

Reversed and remanded, with directions.

      . Reducing the $300,000 verdict to $75,000 and the $90,000 verdict to $20,000.

      . We also reviewed a second point raised by Dr. Oper on cross-appeal and conclude no reversible error has been made to appear.


author: HOBSON, Acting Chief Judge.

text:
    Lawton S. MOCK, Gene R. Tyner, Raymond D. Dery and Benjamin Ellis, Appellants, v. STATE of Florida, Appellee.
    Nos. 78-1021, 78-1035, 78-1036 and 79-297.
    District Court of Appeal of Florida, Second District.
    May 28, 1980.
    Rehearing Denied July 11, 1980.
    Stevan T. Northcutt and Rick B. Levin-son of Levine, Freedman, Hirsch & Levin-son, Tampa, for appellants Mock, Tyner and Ellis.
    Lawrence L. Scott, Tampa, for appellant Dery.
    Jim Smith, Atty. Gen., Tallahassee, and Michael A. Palecki and Michael J. Kotler, Asst. Attys. Gen., Tampa, for appellee.
   HOBSON, Acting Chief Judge.

Appellants Lawton S. Mock, Gene R. Tyner, Benjamin Ellis and Raymond D. Dery appeal their convictions and sentences for possession of over 100 pounds of cannabis with intent to sell or deliver, in violation of Section 893.13(l)(a), Florida Statutes, and importation of a controlled substance, in violation of Section 893.13(l)(d), Florida Statutes. In particular, appellants seek review of the trial court’s denial of their motions to suppress evidence seized pursuant to an allegedly illegal stop. After the motions to suppress were denied, appellants entered pleas of nolo contendere which they subsequently moved the court to withdraw. The court denied the motions to withdraw pleas and appellants appeal that order also. We affirm.

The facts are as follows:

Two confidential informants told Captain Dempsey of the Polk County Sheriff’s Department that appellant Dery was in possession of a DC-3 airplane which he planned to use to import marijuana from South America. Captain Dempsey observed the plane at the Lakeland airport and noted that it was in the process of being converted to a freight configuration. Later, Dempsey learned that the plane was scheduled to land at a secluded, private airstrip in the Green Swamp. He contacted U. S. Customs officials and arranged to fly over the landing strip with a customs agent. During the flight, an orange marker was observed on the landing strip. Several days later Dempsey advised customs agent Warr that he, Dempsey, had to leave the area and had turned the case over to Sergeant Thompson of the sheriff’s department.

Subsequently, Sergeant Thompson was informed by a customs agent that the DC-3 airplane had left the Lakeland airport without filing a flight plan. The following evening, about 6:30 p. m., another confidential informant telephoned Sergeant Thompson with the information that two camper trucks were standing by at the Green Swamp airstrip. At about 9:30 p. m. the same evening, Thompson met with customs agents and deputies at the post office parking lot in Polk City to brief them on the case. While the officers were talking they heard a multi-engine aircraft pass overhead at a low altitude without lights, heading in the direction of the Green Swamp. Another phone call to the confidential informant at 10:15 p. m. revealed that the plane had landed at the Green Swamp airstrip some five or six miles distant. The deputies and customs agents headed for the airstrip to seal off the area and locate the aircraft. The airstrip is situated just south of Rock-ridge Road and north of Dean Still Road in northern Polk County. These two roads run parallel generally east and west. About a mile west of the airstrip, Rockridge Road turns southwest and Dean Still Road intersects with it. From that point, Rock-ridge Road runs southwest and intersects with Highway 98.

As the law enforcement officers neared the airstrip from Polk City, they decided to approach the strip from the northern entrance off Rockridge Road. They experienced some difficulty locating the entrance road in the dark and the officers then decided to use the southern entrance off Dean Still Road. During this delay, Deputy Seay was stationed in an unmarked car at the intersection of Rockridge and Dean Still Roads in order to watch the area. At about 11:00 p. m. Deputy Seay spotted two camper trucks proceeding slowly toward him on Dean Still Road from the direction of the airstrip. There was no other traffic on the highway. Seay radioed Sergeant Thompson who told him to follow the trucks. He followed the trucks southwest on Rockridge for approximately one-half to three-quarters of a mile until the trucks pulled into the parking lot of a closed convenience store at the intersection of Highway 98. The trucks circled around in the parking lot in a manner which allowed them to stop with their headlights directed back toward Deputy Seay, thus impairing his view. After thirty to forty-five seconds, the trucks pulled out of the parking lot and one headed north on Highway 98, while the other turned south. Both trucks carried out-of-state license tags. Deputy Seay radioed this information, followed the northbound truck, turned on his blue lights and stopped the truck. He and two other deputies in his unmarked car approached the stopped truck with guns in hand. Appellant Mock exited the truck and approached the deputy. Seay stated that he immediately detected a strong odor of marijuana coming from the truck. He patted Mock down and retrieved a screwdriver and pair of pliers from his back pocket. The other two officers held appellants Ellis and Dery at gunpoint on the passenger side of the truck.

Seay searched the cab of the truck and found briefcases and aerial maps. Inside one of the cases he discovered what appeared to be a small amount of marijuana and a pistol. Mock, Ellis and Dery were then taken to the rear of the truck where Deputy Seay forced open the rear door with a screwdriver. He observed a number of burlap bags and, after reading the three men their rights, formally arrested them.

While the preceding events were taking place, Deputy Ball received a radio message to be on the lookout for a yellow camper truck with an out-of-state license tag, proceeding south on Highway 98. He spotted the truck and pulled it over. Appellant Tyner met Deputy Ball at the rear of the truck. Ball stated that he had originally noticed nothing unusual about the truck or the manner in which it was driven; however, after the stop he noticed the strong odor of marijuana coming from the truck. Ball looked in the camper window and saw several burlap bags. He located the keys in the cab of the truck and opened the rear door.

All of the arrests occurred before the remaining officers located the airstrip and the DC-3 airplane. Both Deputy Seay and Deputy Ball testified that the trucks were proceeding on the highway at a legal rate of speed and pulled over immediately when the blue lights on the patrol car were activated. Seay stated that he was not instructed to stop the truck but made the decision to do so on his own. Sergeant Thompson testified that the roads in the area were lightly traveled although there were several residences nearby.

The threshold inquiry in this case is whether or not Deputy Seay was justified in stopping the first camper truck.

In order to stop an automobile and to request identification from its occupants, it is not necessary for the police to have probable cause. . . . [I]t is required that the officer have a founded or reasonable suspicion which requires further investigation.

Lewis v. State, 337 So.2d 1031, 1032 (Fla.2d DCA 1976). Events occurring after the initial stop are not relevant to this question.

The record shows that Deputy Seay had the following information at the time he stopped the first vehicle:

1) An airplane, allegedly carrying contraband, had landed at approximately 10:15 p. m. at the nearby airstrip;
2) Two camper trucks had been reportedly standing by at the airstrip;
3) Deputy Seay was under instructions to be on the lookout for two camper trucks;
4) There was no other traffic on the highway; and
5) At 11:00 p. m. two camper trucks approached at a slow speed from the direction of the nearby airstrip.

We hold that the deputy’s suspicion regarding the vehicles was well founded in view of the information available to him at the time of the initial stop. Of course, the justification for stopping the first truck carries over to the second since Deputy Seay would have stopped them both had they not split up at the intersection. Nothing further was required from that moment until Deputy Ball pulled over the second truck. There is no question, on the instant facts, that once the vehicles were stopped the officers almost immediately had sufficient probable cause to conduct a search. Thus, the trial judge was correct in denying appellants’ motions to suppress evidence. We hereby affirm the judgments and sentences rendered in this cause.

AFFIRMED.

OTT and RYDER, JJ., concur.

      . Appellants have directed our attention to the case of Oesterle v. State, 382 So.2d 1293 (Fla.2d DCA, No. 79-1878, filed April 18, 1980). In that case we held a similar stop illegal; however, the facts are distinguishable in one major respect. In Oesterle, the officers received word that an aircraft loaded with marijuana had landed in a pasture. The plane was visible to the officers from the highway where they were positioned on lookout. One and one-half hours later, the officers spotted a camper truck approaching from the opposite direction of the aircraft heading in the direction of the pasture entrance gate. The arresting officer stated on cross-examination that he stopped the truck from one-quarter to three-quarters of a mile past the entrance gate. The truck made no effort to turn in at the gate.
      We find the facts in Oesterle distinguishable from those of the instant case and thus decline to apply the holding in that case to appellants’ benefit. We do agree, however, that out-of-county license tags and covered camper windows do not, absent more, justify an investigatory stop.