text:
    Royce HAVELIN v. POOLE TRUCK LINES, INC.
    Civ. 2388.
    Court of Civil Appeals of Alabama.
    Dec. 10, 1980.
    Rehearing Denied Jan. 21, 1981.
    Thomas J. Stein, Mobile, for appellant.

      E. L. McCafferty, III and William C. Bar-clift of Inge, Twitty, Duffy & Prince, Mobile, for appellee.
   WRIGHT, Presiding Judge.

This is a workmen’s compensation case.

The plaintiff, Royce Havelin, was employed by the defendant, Poole Truck Lines, Inc., as a truck driver. He was involved in a one-vehicle accident while driving one of the defendant’s trucks shortly after midnight on October 9, 1979. In that accident the plaintiff’s left foot was severed. His left leg was subsequently amputated some seven inches below the knee. The plaintiff sued for workmen’s compensation benefits from defendant. After answer by defendant, both parties moved for summary judgment.

After considering the pleadings, briefs filed in support of motions and the deposition of the plaintiff, defendant’s motion for summary judgment was granted. Plaintiff appeals. We affirm.

Plaintiff contends the trial court erred in granting defendant’s motion because the uncontroverted facts of this case establish a scintilla of evidence that the accident arose out of and occurred in the course of his employment.

A motion for summary judgment may be granted only where there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Green v. Blue Cross-Blue Shield of Alabama, 358 So.2d 466 (Ala.Civ. App.1978). The movant has the burden of showing the absence of any genuine issue of material fact. Amason v. First State Bank of Lineville, 369 So.2d 547 (Ala.1979). If there is a scintilla of evidence supporting the non-moving party, a summary judgment is inappropriate. Wilbanks v. Hartselle Hospital, 334 So.2d 870 (Ala.1976). Where, however, all the basic facts are undisputed and the matter is one for interpretation or of reaching a conclusion of law by the court, the court may grant a motion for summary judgment. Bible Baptist Church v. Stone, 55 Ala.App. 411, 316 So.2d 340 (1975).

Having viewed thoroughly all that was before the trial court, we find the material facts are undisputed and must be taken as true for the purpose of the motion. Ray v. Midfield Park, Inc., 293 Ala. 609, 308 So.2d 686 (1975). Whether an accident arises out of and in the course of employment depends upon the facts and circumstances of each case. Bell v. General American Transportation Corp., 52 Ala.App. 123, 290 So.2d 184 (1973). But when the facts are undisputed, whether the accident arose out of and in the course of employment requires application of the law to those facts. Travelers Insurance Co. v. Smith, 91 Ga.App. 305, 85 S.E.2d 484 (1954); See also, 18A Ala.Dig., Trial, Key No. 141. Therefore, our inquiry turns to whether the defendant was entitled to judgment as a matter of law. Hudson-Thompson, Inc. v. Leslie C. King Co., 361 So.2d 541 (Ala.1978).

An employee’s right to recover benefits under our Workmen’s Compensation Law depends primarily upon the employee’s injury or disability resulting from an accident “arising out of and in the course of his employment.” § 25-5-51, Code of Alabama (1975). The trial court concluded that under the undisputed facts the accident did not meet that test as a matter of law. These facts are as follows:

From his home, plaintiff called his employer during the afternoon of October 8, 1979, and was told that a load was available for him. He arrived at his employer’s place of business around eight o’clock at night and was directed to a local plaint to pick up a load of wallboard for delivery to Grand Bay, Massachusetts. He left the plant around eleven o’clock, the load secured and the trip to Massachusetts begun. Just after midnight the accident which is the subject of this suit occurred.

Plaintiff testified at deposition that the employer’s policy was for its drivers to take the most direct and economical route for delivery purposes. He testified that route would be north on U. S. Highway 43 from Mobile to Birmingham. Plaintiff further stated that in beginning his trip, instead of traveling north on U. S. 43, he headed west on U. S. Highway 45 for some distance then north on Alabama Highway 217 (or Lott Road). The accident occurred on Alabama 217 when the truck plaintiff was driving collided with several cattle in the middle of the road. Plaintiff admitted to being on his way home at the time of the accident in order to take a shower, get some clothes and pick up his logbook. Plaintiff also stopped at a grocery store on the way home and bought a gallon of milk, knowing they were out of milk at home. It is undisputed that the plaintiff was approximately fifteen miles off the most economical and direct route out of Mobile toward Massachusetts when the accident occurred. He admitted he knew of a company order that drivers were not to take trucks to their home without permission from the dispatcher. He had been previously admonished for violating the order. He had no permission to go to his home on this occasion. He deliberately left his suitcase and logbook at home when he called in and was informed that he had a load to pick up going to Massachusetts. He formed the intent then to return home with his truck and load, take a shower and get his suitcase and logbook before going on his trip.

Thus, it is admitted by claimant that though dispatched with a loaded truck to Massachusetts by the most direct and economical route, to arrive at the most expeditious time, he deviated from that route contrary to direct orders, for the reason of taking a bath, picking up his suitcase and logbook and taking home milk. 1 Larson, The Law of Workmen’s Compensation, § 19:31 (1978) states the correct applicable rule as follows:

When an employee deviates from his business route by taking a side trip that is clearly identifiable as such, he is unquestionably beyond the course of his employment while going away from the business route and toward the personal objective.

The trial court applied the rule to the undisputed facts and entered judgment, holding that the deviation was substantial, contrary to the employer’s direction, for a personal objective and thus not within the course of employment as a matter of law. We find the judgment not erroneous. It is the law of our cases that an injury to an employee arises in the course of his employment when it occurs within the period of his employment, at a place where he may reasonably be and while he is reasonably fulfilling the duties of his employment or doing something incident to it. Wiregrass Comprehensive Mental Health Clinic, Inc. v. Price, 366 So.2d 725 (Ala.Civ.App.1978), cert. denied, 366 So.2d 728 (Ala.1979).

We cannot agree with claimant that a “personal comfort doctrine” applies or that the deviation was incident to the employment or to any degree served the interest of the employer.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


source: Caselaw Access Project

author: SHORES, Justice.

license: Public Domain

text:
    Ex Parte Royce HAVELIN. (Re Royce HAVELIN v. POOLE TRUCK LINES, INC.)
    80-316.
    Supreme Court of Alabama.
    March 24, 1981.
   SHORES, Justice.

WRIT DENIED — NO OPINION.

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


text:
    Charles Aubrey EAST v. Don Charles EAST.
    Civ. 2496.
    Court of Civil Appeals of Alabama.
    Dec. 17, 1980.
    Rehearing Denied Jan. 14, 1981.
    Tom Radney of Radney & Morris, Alexander City, for appellant.
    Calvin M. Whitesell, Montgomery, for ap-pellee.
   EDWARD N. SCRUGGS, Retired Circuit Judge.

As a third party beneficiary, the plaintiff brought this civil action against his father in the Circuit Court of Clay County for the specific performance of a separation agreement made by the plaintiffs parents to convey land to him. Also included in the complaint were contempt proceedings against the father.

For convenience, we have numbered certain paragraphs of the agreement which was attached to and made a part of the complaint, and, for clarity, the following pertinent provisions are quoted therefrom:

KNOW ALL MEN BY THESE PRESENTS:
That the undersigned, Carol Grogan East herein called the wife, and Don Charles East herein called the husband have separated and divorce proceedings are being commenced in the Circuit Court of Es-cambia County, Alabama, by the said Carol Grogan East against the said Don Charles East, and wherein the parties are the parents of a child, namely, Charles Aubrey East, now about two years of age, and the parties desire to make an agreement between themselves relative to the future custody of the said child.
(1) NOW THEREFORE it is agreed by and between the parties that both parties are suitable persons to be entrusted with the custody of their said child in all respects, but that the parties have agreed between themselves that it is to the best interest of the said child that the Father or husband, Don Charles East be awarded the custody of the said child during the school term and that the said Carol Gro-gan East shall have the custody of the said child during the three months of summer vacation each year, and each of the parties shall have the custody of the child during alternate Christmas Holidays; the said child to be awarded into the custody of Carol Grogan East the Christmas Holidays of the year 1962.
(2) It is understood and agreed by the parties that the husband shall pay to the wife the sum of $60.00 per month as permanent alimony which said sum shall be payable on the 1st day of each calendar month hereafter.
(3) It is agreed by and between the parties that the wife shall have all of the household goods of the parties, with the provision that the husband may select therefrom any articles which belong peculiarly to him or which he has a necessity for and the wife does not, said selection to be made within one year from this date.
(4) It is further understood and agreed that the parties will convey to the said Charles Aubrey East by a good and sufficient Warranty Deed conveying title in fee simple the 45 acres of land owned by the husband in Clay County, Alabama.
(5) The parties hereby humbly request the Circuit Court of Escambia County, to take cognizance of this agreement and to award the custody of the minor child of the parties in accordance therewith and to award alimony in accordance therewith.
IN WITNESS WHEREOF we have hereunto set our hands and seals in triplicate on this the 1st day of May, 1962.

Further filed with the complaint was a copy of a decree of the Circuit Court of Escambia County dated May 11, 1962, which divorced the plaintiff’s parents and largely copied the provisions of paragraphs (1) and (2) of such agreement as to custody of the son and alimony for the wife. None of the provisions of any of the other paragraphs of the separation contract were included, mentioned, or expressly or impliedly incorporated into the divorce decree.

We will not burden this decision with the pleadings seeking to place the father in contempt of court for failure to convey the real estate because the Clay County Circuit Court has no contempt authority to enforce an Escambia County Circuit Court decree. However, of greater importance in this case is the fact that no contempt proceedings can successfully be pursued against a party for failure to perform according to the terms of a separation agreement, which terms are not included in a judgment or decree. There is no violation of any order «f the court in such a case since there is an absence of an order as to the subject matter. In the context of this case, a civil contempt consists in the failure of a person to do something which he was ordered to do by a court in a civil action for the benefit of the opposing party therein. 4A Ala. Digest, Contempt Key 4. Here, the father was not ordered by the court to convey the property, and he cannot be held in contempt of court for failure to deed the property to his son.

The remaining allegations of the amended complaint state that the son was a third party beneficiary to said agreement of his parents, that the father violated its terms by refusing to convey the land to the son, and that the father breached the contract, which breach continues in that he refuses to comply with its provisions. As relief, the son seeks a court order that his father execute a deed of the land to him. In short, he requests specific performance of the contract.

The defendant father’s amended motion to dismiss the complaint was granted by the circuit court. The son appeals.

The first ground in the motion is under Rule 12(b)(6) of the Alabama Rules of Civil Procedure. This is a motion which should seldom be granted and should only be granted when “it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1958); Trabits v. First National Bank, 295 Ala. 85, 323 So.2d 353, 358 (1975). It does not appear to us that at this stage of the case the appellants would be unable to prove any set of facts in support of their claim which would entitle them to relief.

Jeannie’s Grocery v. Baldwin County Elec. Mem. Corp., (Ala.), 331 So.2d 665, 666-667 (1976).

A trial court is not controlled by a separation agreement of the parties. The court may adopt or reject such part of it as is deemed proper according to the situation of the parties. Williams v. Williams, 261 Ala. 328, 74 So.2d 582 (1954); Russell v. Russell, 247 Ala. 284, 24 So.2d 124 (1945). The father contends that, since paragraph numbered (4) of the agreement was not included in the decree it, therefore, ceased to be viable as a part of the separation agreement.

Thus, we are first presented with the question as to whether that part of the agreement to convey the land to the son was merged in the decree. If such a merger does not exist, those contractual provisions may be enforced by a civil action upon them rather than on the decree. 24 Am. Jur.2d 1048, Divorce and Separation § 920. On the other hand, if the entire agreement became merged in the decree, only the decree and not the contract may be enforced, Horan v. Horan, 259 Ala. 117, 65 So.2d 486 (1953), which, in this case, might mean that no cause of action presently exists since the land conveyance promise was not carried over to and included in the divorce decree. We determine that an agreement-judgment merger did not occur as to the matters contained in paragraph (4) of the agreement.

“[T]he question whether a separation agreement or a property settlement is merged in the decree or survives as an independent agreement depends upon the intention of the parties and the court .... ” 24 Am.Jur.2d 1031, Divorce and Separation § 908. The language of paragraph (5) of the agreement indicates that the parties intended a merger of only paragraphs (1) and (2); and, since those two provisions as to custody and alimony are the only portions of the contract which were included in the decree, and since they were the only provisions of the agreement which the parties in paragraph (5) requested to be approved by the court, it is more reasonable to assume that the trial court intended to comply with that expressed written request of the parties as contained in paragraph (5) than to assume that the court intended to eliminate the right of the son to a conveyance of the property. If the divorce court intended to disavow and disallow the gift of the land to the son it could have easily said so in the divorce judgment. The intent was not to merge any portion of the agreement with the decree except those two custody and alimony provisions (paragraphs (1) and (2) of the contract) which were set forth in the decree. Since there was no merger of paragraph (4) of the agreement with the divorce decree, a civil action could be instituted founded upon that paragraph’s contractual rights.

Additionally, the father’s contentions as to the complaint could be rejected under authority of Newton v. Roe, 290 Ala. 191, 194, 275 So.2d 135, 137-138 (1973), wherein it was stated:

Applying the above stated equitable principles to the present case, we feel the evidence justified the trial court’s conclusion that at the time of the divorce settlement it was intended by the parties that the respondent would be the exclusive owner of the 79-acre tract, and that such intention should be effectuated through this litigation. Indeed, the complainant’s evidence, including her own testimony fails to dispute that such were the terms of the agreement. Although complainant does not deny that such an understanding was reached between the parties, she nevertheless insists that since the same was not included in the final decree of divorce, and that no deed conveying her interest was ever executed, it is not now binding on her; and, consequently, she remains the owner of an undivided one-half interest in the property.
We agree with the trial court’s rejection of complainant’s contention; and we hold that the trial court did not exceed its jurisdiction in adjudicating the rights of the parties by divesting title out of the complainant and in the respondent in accordance with the complete settlement agreement disclosed by the testimony as if she had executed the deed on the date of the property settlement incident to their divorce. Accordingly, the judgment of the trial court is due to be and is hereby affirmed.

In that respect, this court’s opinion in Durham v. Durham, Ala.Civ.App., 336 So.2d 1360 (1976), does not apply since the present case is one of specific performance of a contract not an action for modification of a prior judgment.

The appellee further argues that the son was not a third party beneficiary of his parents’ contract. We disagree.

Alabama law is clear to the effect that one for whose benefit a valid contract has been made, although that person is not a party thereto and does not furnish any consideration therefor, may maintain an action on the contract against the promis-sor. Anderson v. Howard Hall Company, 278 Ala. 491, 179 So.2d 71 (1965); Mutual Benefit Health & Accident Association of Omaha v. Bullard, 270 Ala. 558, 120 So.2d 714 (1960); Tennessee Coal, Iron & Railroad Co. v. Sizemore, 258 Ala. 344, 62 So.2d 459 (1952); Employers Ins. Co. of Alabama v. Rhodes, 240 Ala. 226, 198 So. 616 (1940); Employers Ins. Co. of Alabama v. Johnston, 238 Ala. 26, 189 So. 58 (1939); Barlowe v. Employers Ins. Co. of Alabama, 237 Ala. 665, 188 So. 896 (1939). The only condition being that the third person must have been intended to be directly and incidently benefited. Anderson v. Howard Hall Company, supra; Brown v. Fogarty, 221 Ala. 283, 128 So. 376 (1930).

Harris v. Board of Water & Sewer Com’rs of Mobile, 294 Ala. 606, 611, 320 So.2d 624, 628 (1975).

While the land conveyance proviso was a part and parcel of the separation agreement and presumably benefited the parties to the divorce, it also directly benefited their son. 4 Corbin, Contracts § 775 (1951). It is difficult to imagine a case whereby parents, by their contract, intend to benefit a son in a more direct manner than where they agree to convey land to that child free gratis. Where H has contracted with W for H to convey land to C, C may sue H for specific performance of the contract upon H’s breach thereof. 4 Cor-bin, Contracts § 810 (1951). If C was a minor when the contract was made, he would have three years after reaching 19 years of age, but no more than 20 years from the time the claim or right accrued, within which to sue for specific performance. § 6-2-8, Code of Ala. 1975.

At this stage of the case, we are not convinced of the inability of the plaintiff to prove facts in support of his claim which would entitle him to relief. The learned trial court, therefore, erred in granting the defendant’s motion to dismiss. What we have stated herein concerns only the present posture of this case for we are not endowed with future vision as to the pleadings, defenses, issues, discovery, evidence or facts which will be hereafter presented, and we have no intent to expressly or impliedly comment thereon.

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

REVERSED AND REMANDED.

All the Judges concur.


text:
    Ex Parte Don Charles EAST. (Re: Charles Aubrey EAST v. Don Charles EAST).
    80-285.
    Supreme Court of Alabama.
    March 24, 1981.
   SHORES, Justice.

WRIT DENIED — NO OPINION.

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


author: HOLMES, Judge. HOLMES, Judge.

text:
    LEPESKA LEASING CORPORATION v. STATE of Alabama, DEPARTMENT OF REVENUE.
    Civ. 2545.
    Court of Civil Appeals of Alabama.
    Dec. 24, 1980.
    As Modified on Denial of Rehearing Jan. 21, 1981.

      Vincent F. Kilborn of Kilborn & Gibney, Mobile, for appellant.
    Charles A. Graddick, Atty. Gen., and Herbert I. Burson, Jr., Counsel, Dept, of Revenue and Asst. Atty. Gen. and B. Frank Loeb, Asst. Counsel, Dept, of Revenue and Asst. Atty. Gen., for appellee.
   HOLMES, Judge.

This is a tax case.

The taxpayer, Lepeska Leasing Corporation, appeals from a decree of the Circuit Court of Montgomery County affirming a final assessment for use tax entered against the taxpayer by the State Department of Revenue.

The dispositive issue is whether Alabama’s use tax, §§ 40-23-60 et seq., Code of Ala. 1975, applies to the sale of tangible personal property to a lessor of such property when the lessor is exempt from the payment of Alabama lease tax, §§ 40-12-220 et seq., Code of Ala. 1975. We find that the use tax does not apply and reverse.

The record reveals the following facts:

The taxpayer is an Illinois corporation engaged in the business of leasing or renting tangible personal property to others.

In 1976, the taxpayer and Providence Hospital of Mobile, Alabama, entered into an agreement whereby the taxpayer would purchase and lease to Providence a Delta-scan x-ray taking device.

The taxpayer made the purchase as agreed and the Delta-scan was delivered to Providence.

The Delta-scan is a device containing ionizing radiation sources used in medical treatments. The gross proceeds accruing to the taxpayer from the lease of the Delta-scan are exempt from assessment of lease tax under § 40-12-223(7), Code of Ala. 1975. Neither party makes any contention that the proceeds are not so exempt.

The State after noting the above mentioned exemption assessed the taxpayer for use tax in the amount of 4% of the purchase price of the Delta-scan.

The taxpayer appeals this use tax assessment.

At the outset, we note the record discloses this case was submitted to the trial court sitting without a jury on the basis of the pleadings, stipulations of fact, exhibits, and trial briefs. Under such circumstances, the findings of the learned and distinguished trial judge do not carry any presumptions of correctness, and the appellate court must consider the evidence de novo in light of applicable legal principles. Sheehan v. Liberty Mutual Fire Insurance Co., 288 Ala. 137, 258 So.2d 719 (1972); State v. Tri-State Pharmaceutical, Ala.Civ.App., 371 So.2d 910, writ denied, Ala., 371 So.2d 914 (1979); 2A Ala. Digest, Appeal & Error Key 931(1).

We find this case to be governed by two well established rules of statutory construction. The first rule is that in cases of statutory construction, it is the duty of the court to effectuate the intent of the legislature, and in doing so, the court may examine not only the language of the enactment but its purpose and object as well. Hilyer v. Dixon, Ala.Civ.App., 373 So.2d 1123, writ denied, Ala.Civ.App., 373 So.2d 1125 (1975); 18 Ala. Digest, Statutes Key 181(1). The second rule is that the coverage and scope of taxing statutes are strictly construed against the taxing authority and in favor of the taxpayer. Boswell v. Abex Corp., 55 Ala.App. 477, 317 So.2d 314, cert. denied, 294 Ala. 334, 317 So.2d 317 (1975); 18 Ala. Digest, Statutes Key 245.

The taxpayer has asked this court to construe the coverage and scope of Alabama’s use tax statutes.

Alabama’s use tax is set forth in §§ 40-23-60 et seq., Code of Ala.1975. Section 40-23-61(A) imposes a use or excise tax on “the storage, use or other consumption in this state of tangible personal property ... purchased at retail on or after October 1, 1965, for storage, use or other consumption in this state at the rate of four percent of the sales price of such property .... ”

The use tax is a tax on the consumer, the retail purchaser, of tangible personal property. State v. Toolen, 277 Ala. 120, 167 So.2d 546 (1964); Merriwether v. State, 252 Ala. 590, 42 So.2d 465 (1949). Under § 40-23-61(a), all purchases of tangible personal property are deemed to be at retail, and are therefore taxable, unless the purchase is a wholesale sale as defined in § 40-23-60(4), Code of Ala.1975. If the purchase is at wholesale, the use tax is, by definition, inapplicable. Holloway v. State, 262 Ala. 437, 79 So.2d 40 (1955); State v. Tri-State Pharmaceutical, supra. See, State v. Reynolds Metals Company, 263 Ala. 657, 83 So.2d 709 (1955).

In 1971, the legislature enacted Alabama’s lease tax, §§ 40-12-220 et seq., Code of Ala.1975. Section 40-12-222 imposes “a privilege or license tax on each person engaging or continuing within this state in the business of leasing or renting tangible personal property at the rate of four percent of the gross proceeds derived by the lessor from the lease or rental of tangible personal property .... ” The lease tax in § 40-12-223(7) further provides for the aforementioned exemption. Specifically, this exemption is as follows:

There are exempted from the computation of the amount of the tax levied, assessed or payable under this article the following:
(7) The gross proceeds accruing from the leasing or rental of nuclear fuel assemblies together with the nuclear material contained therein and other nuclear material used or useful in the production of electricity and assemblies containing ionizing radiation sources together with the ionizing radiation sources contained therein used or useful in medical treatment or scientific research[.]

In other words, persons engaged in the business of leasing or renting tangible personal property to others in the State of Alabama are subject to a 4%. tax on the gross proceeds derived from leases or rentals. See, State v. G. M. & O. Land Company, 49 Ala.App. 707, 275 So.2d 687, writ denied, 290 Ala. 371, 275 So.2d 690 (1973). Taxation is the rule and exemption is an exception. State v. Zewen, 270 Ala. 52, 116 So.2d 373 (1959); State v. Lamson & Sessions Co., 269 Ala. 610, 114 So.2d 893 (1959). Whether such a person will be required to actually pay the lease tax is, of course, dependent upon the availability of exemptions from the tax.

When the legislature enacted the lease tax, it is also amended the definitions of wholesale sales contained in § 40-23-60(4) of the use tax. Wholesale sales were declared to include:

A sale of tangible personal property to any person engaging in the business of leasing or renting such tangible personal property to others, if such tangible personal property is purchased for the purpose of leasing or renting it to others under a transaction subject to the privilege or license tax levied in article 4 of chapter 12 of this title against any person engaging in the business of leasing or renting tangible personal property to others[.]

This amendment excludes from the coverage of the use tax purchases made by lessors who are subject to the lease tax under § 40-12-222. See, State v. Tri-State Pharmaceutical, supra.

We find that the legislature, by enacting the lease tax and amending the use tax, intended to relieve persons in the business of leasing or renting tangible personal property of the burden of the use tax and, at the same time, to impose upon them a new and distinct tax, i. e., thé íeáse tax.

In the instant case, the State contends the taxpayer must pay either the use tax or the lease tax, and that since the taxpayer is exempt from payment of the lease tax, the taxpayer must pay the use tax.

We do not agree.

The taxpayer is a person engaged in the business of leasing or renting tangible personal property. The taxpayer is, therefore, subject to the lease tax imposed by § 40-12-222, Code of Ala.1975. The fact that the taxpayer is exempt from the payment of the tax under § 40-12-223(7), Code of Ala. 1975, does not remove the taxpayer from the coverage of the lease tax. The taxpayer’s liability for taxes on the gross proceeds from the lease of the Delta-scan is governed by the provisions of the lease tax, and in that sense, the taxpayer is subject to that tax.

While we do not presume to know precisely the legislature’s intent in enacting the § 40-12-223(7) lease tax exemption, it would appear that the legislature intended to foster the acquisition and use of x-ray taking devices by physicians and hospitals by lowering the costs of leasing such devices. To hold that the taxpayer is liable for use tax would, in effect, negate the benefits of the lease tax exemption. In short, the exemption would be meaningless. We cannot assume that the legislature intended to do a meaningless or futile thing. Druid City Hospital Bd. v. Epperson, Ala., 378 So.2d 696 (1979); Fletcher v. Tuscaloosa Federal Sav. and Loan Ass’n, 294 Ala. 173, 314 So.2d 51 (1975).

For the above reasons, we find that the purchase of the Delta-scan by the taxpayer was a wholesale sale as defined by § 40-23-60(4)(i), Code of Ala.1975, and that the use tax does not apply.

This case is due to be reversed.

REVERSED AND REMANDED.

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

ON REHEARING

HOLMES, Judge.

Opinion corrected. Application for rehearing denied.

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


author: JONES, Justice.

text:
    Ex Parte STATE OF ALABAMA, DEPARTMENT OF REVENUE. (Re: LEPESKA LEASING CORPORATION v. STATE OF ALABAMA, DEPARTMENT OF REVENUE).
    80-319.
    Supreme Court of Alabama.
    March 24, 1981.
   JONES, Justice.

WRIT DENIED — NO OPINION.

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


author: WRIGHT, Presiding Judge.

text:
    Jimmy L. SANDERS et al. v. CITY OF TUSCALOOSA.
    Civ. 2371.
    Court of Civil Appeals of Alabama.
    Jan. 14, 1981.
    Rehearing Denied Feb. 18, 1981.
    Jack Drake of Drake & Pierce, Tuscaloosa, for appellants.
    J. Wagner Finnell and H. Burton Flanagan, Legal Dept., City of Tuscaloosa, for appellee.
   WRIGHT, Presiding Judge.

This action arose from the following facts: In 1975, defendants, owners of subdivided property outside the corporate limits of the City of Tuscaloosa sought information from the water department as to requirements and cost of extending and construction of water mains and fire hydrants into their property. They were informed that it was the policy of the water department that the developer pay one-half the cost of extending a main from the corporate limits to the limit of the subdivision and the entire cost of the lines within the subdivision when such subdivision was located out of the City. If the subdivision was within the City limits, the developer paid one-half of the entire cost. Defendants then represented to the water department that annexation of the subdivision into the City would be requested. Relying upon that representation, the City required a deposit of only one-half the estimated cost of the total project and proceeded with the installation. Upon completion, the property had not been annexed and defendants were billed for the remaining unpaid costs of $9,458.12. There is no dispute as to the correctness of that amount.

In February of 1978 the City extended the time for payment until December 31, 1978, so that annexation could be pursued. It was agreed in writing by defendants that if annexation had not been completed by that date that the charge would be paid. By the time the petition for annexation reached consideration by the City Commission, more than fifty percent of the owners of lots in the subdivision were opposed. Thus annexation was not permitted by law. Payment was not made prior to December 31, 1978. The City sued.

Defendants defended, claiming breach by the City of an implied contract by failing to annex the property into the City. Defendants also contend the policy of the City in fixing differing charges for installation of water mains for property outside corporate limits from installations on property within corporate limits denies equal protection of the law.

As we understand the contention of defendants as to their defense of breach of an implied contract, it is in effect a defense of unjust enrichment. Defendants contend that out of their discussions with the City water department there arose an implied contract that the City would annex into the corporate limits the subdivision of defendants. Such annexation would result in defendants saving one-half the cost of installing the water lines. Defendant says the City breached the implied contract by failing to complete the annexation. The bottom line of the contention is that because of the failure of the City to act, defendant should not have to pay the full cost of installing city water in its subdivision.

Defendants have cited and quoted from several cases holding a city liable on a contract implied in law to prevent a city receiving, accepting or retaining benefits without paying just compensation therefor. The primary and most recent case is that of Bethune v. City of Mountain Brook, 293 Ala. 89, 300 So.2d 350 (1974). This is not such a case. Rather the shoes are upon defendants’ feet. Defendants have not shown evidence that the City has enriched itself by obtaining benefits without payment therefor. The evidence is that defendants received material and labor after promise to pay a price. The price to be paid would be diminished if annexation occurred. Annexation did not occur. Annexation is a governmental function with authority and method granted to the city by the legislature. The City of Tuscaloosa could not expressly contract to exercise or not to exercise its delegated authority of annexation. It must follow that it cannot do so by implication. City of Leeds v. Town of Moody, 294 Ala. 496, 319 So.2d 242 (1975). Of course, the previous statement is applicable only if we assume, for argument’s sake, that there was, in fact or at law, basis for an implied contract for annexation. The trial court found there was not. We affirm that finding.

We consider it unnecessary to address appellant’s claim that the policy of charging subdivisions, within and without the City, different amounts for the construction of water services is unconstitutional. The case was tried as one for work done and materials furnished and breach of contract. The City may validly enter into a contract to construct water service facilities for areas surrounding the City. § 11-50-5, Code of Alabama (1975). We point out, however, that the cases cited by appellants deal with the fixing of rates for customers along preexisting lines of city water service. In those cases the city was obligated to supply water to all persons along those lines at equal rates. Birmingham Waterworks Co. v. Brown, 191 Ala. 457, 67 So. 613 (1914). This case deals with the construction of water lines for developers without the corporate limits. The City is under no legal obligation to provide such construction. What difference this distinction may make we do not address at this time.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


author: HOLMES, Judge.

text:
    The ESTATE OF Howard WATKINS, Deceased v. Phylistine STATON.
    Civ. 2495.
    Court of Civil Appeals of Alabama.
    Feb. 18, 1981.
    Fred K. Granade of Stone, Partin & Gra-nade, Bay Minette, for appellant.
    Thomas W. Underwood, Jr. of Chason & Underwood, Foley, for appellee.
   HOLMES, Judge.

The plaintiff filed a claim against the defendant-estate. The Circuit Court of Baldwin County, after an ore tenus hearing, ruled in favor of the plaintiff. The amount of the judgment against the defendant-estate was $1,840. The defendant-estate appeals and we conditionally affirm.

The dispositive issues on appeal are (1) whether the evidence supports the amount of the judgment and (2) whether the trial court committed reversible error in allowing certain testimony as evidence.

I

We do not deem it necessary to set out the facts or contentions as they relate to issue (1). Suffice it to say the plaintiff agrees, in brief, that the amount of the judgment is not supported by the evidence. Additionally, the parties to the appeal agree as to the amount that is supported by the evidence, to wit, $548.46.

At this juncture, we would like to thank the plaintiff for her candor.

II

The defendant, through able counsel, contends that certain testimony given by plaintiff, over objection, was inadmissible by virtue of § 12-21-163, Code of Ala. 1975, Alabama’s Dead Man statute.

Again, we do not deem it necessary to set out in detail these contentions.

For the purposes of this appeal, we accept defendant’s contention that certain testimony and other evidence were not admissible. However, we find such admission of evidence to be error without injury. See Rule 45, ARAP.

There was ample credible evidence to support the trial court’s judgment in the amount indicated above. We refer to the testimony of Mrs. Heibel, Ms. Pilgrim, and Ms. Lanagan.

In view of the above, a judgment will accordingly be entered that unless the plaintiff files a remittitur with the clerk of this court within thirty days reducing the judgment to $548.46, the judgment of the trial court will be reversed and the case shall be remanded. If, however, such re-mittitur is filed, a judgment for $548.46 will stand affirmed.

AFFIRMED CONDITIONALLY.

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


text:
    WILLIAM WILSON ENTERPRISES, INC. v. Janet NAPIER.
    Civ. 2521.
    Court of Civil Appeals of Alabama.
    Feb. 18, 1981.
    William C. Gullahorn, Jr. of Gullahorn & Hare, Albertville, for appellant.
    Clyde D. Baker, Guntersville, for appel-lee.
   WRIGHT, Presiding Judge.

Plaintiff’s action was for breach of contract by her employer for failure to secure a policy of health insurance and for fraud in misrepresenting that she would be provided health insurance as a part of her employment.

The case was tried by a jury, with verdict and judgment for plaintiff in the sum of $4,574. Remittitur was ordered and accepted by plaintiff in the amount of $38.20. Motion for new trial was filed by defendant and denied. Defendant appealed.

The only issue presented on appeal is whether the trial court erred in refusing defendant’s motion for new trial on the ground of excessiveness of the verdict.

We note in the beginning that defendant has failed to provide the court with any authority in support of the issue presented and thus is not in compliance with Rule 28, Alabama Rules of Appellate Procedure. We find its brief insufficient to support the appeal for such failure. Defendant, as authority for its argument, cites as follows: “Alabama Digest, Key No. 94 and cases cited thereunder.” Perhaps the obvious failure to provide the subject of the cited key number of the Alabama Digest was mere oversight. However, even had we been given the subject of Key No. 94, such citation would not be a proper authority as contemplated by Rule 28, ARAP. Providing a key number in the digest requires that this court find the probably numerous cases listed thereunder in the reporter and determine which of them, if any, supports the contention of the appellant. We decline to assume that task.

However, since the court had examined the argument of defendant and found it to be insufficient for reversal before noting the absence of supporting authority, the following comments are made: Defendant begins argument by contending there was no evidence presented from which the jury could find punitive damages. That contention is inappropriate. It is not presented as an issue and would not be available if it were. The jury was charged as to punitive damages. Defendant did not object nor did it request a charge to the contrary. The instructions became the law of the case and defendant cannot on motion for new trial, nor here, complain that punitive damages could not be granted. Loch Ridge Construction Co. v. Barra, 291 Ala. 312, 280 So.2d 745 (1973).

Subsequent to its first contention, defendant concedes that there was perhaps sufficient evidence of fraud to submit the issue of punitive damages to the jury, but it submits that the jury ran away with the privilege and awarded excessive punitive damages.

The appellate courts of this state have repeatedly held that the award of punitive damages is, if proper under the evidence, within the discretion of the jury, and unless so excessive or inadequate as to indicate undue passion, prejudice or some other improper sentiment, that discretion will not be reversed on appeal. To do so would be to substitute the court’s judgment for that of the jury. Coffee General Hospital v. Henderson, 338 So.2d 1022 (Ala.Civ. App.1976); Carlisle v. Miller, 275 Ala. 440, 155 So.2d 689 (1963). Though the award was stated by the trial court to consist largely of punitive damages and it was substantially more than the compensatory damages proved, we are unable to find it so grossly excessive as to shock the conscience of this court. We therefore affirm.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.

      . Intentional, gross, oppressive, aggravated, malicious fraud. Randell v. Banzhoff, 375 So.2d 445 (Ala. 1979); Proctor Agency, Inc. v. Anderson, 358 So.2d 164 (Ala. 1978).


text:
    ALABAMA FARM BUREAU MUTUAL CASUALTY COMPANY v. LYLE SERVICE AMBULANCE-WRECKER.
    Civ. 2533.
    Court of Civil Appeals of Alabama.
    Feb. 18, 1981.

      William W. Bedford, of Bedford, Bedford & Rogers, Russellville, for appellant.
    John W. Lowe, of James, Lowe & McNa-mee, Haleyville, for appellee.
   WRIGHT, Presiding Judge.

This matter began with Farm Bureau Mutual Casualty Company (Farm Bureau) filing a declaratory judgment action to determine its right to possession of an automobile held by defendant Lyle. Lyle answered and filed counterclaims on account and fraud. Farm Bureau amended by adding a second claim for conversion. The court sitting without a jury denied Farm Bureau any relief and found for Lyle on its claim on account and awarded him the sum of $1,158. It further found Lyle had a claim to the automobile superior to that of Farm Bureau and that such claim would remain in effect until the judgment was paid in full by Farm Bureau. In addition, the court awarded Lyle the sum of one dollar per day thereafter as a storage fee until the judgment was paid and the vehicle removed from the premises of Lyle. Motion for new trial was denied. Farm Bureau appeals.

The evidence, succinctly stated, tended to show the following: Defendant Lyle operates a wrecker, salvage and ambulance business in Winston County, Alabama. On November 11, 1978 an insured of Farm Bureau had an accident in the insured automobile. Lyle responded to a report of the accident with wrecker and ambulance. There were several passengers in the automobile who were injured in addition to the insured. Lyle’s ambulance transported all to a hospital. He was directed by the insured to remove the automobile from the scene by wrecker and hold it until further notice. The ambulance service charge for all persons in the vehicle was $376. The towing charge and charge for storage from the date of the accident until date of trial was $632.

Lyle claimed the additional sum of $150, arising from two other incidents in which he had held Farm Bureau insured automobiles for wrecker and ambulance charges, but which he had released to Farm Bureau upon a promise by Farm Bureau to pay the charges.

Farm Bureau undisputedly held legal title from the owner to each of the involved vehicles by virtue of its payment to the insured for his total loss.

Lyle’s defense to the declaratory judgment action was that though Farm Bureau had legal title, he had the right to hold possession of a vehicle until he was paid all wrecker, ambulance, and storage charges made by him relative to any vehicle. It did not develop specifically during the trial that Lyle held possession of the automobile under claim of a lien. It appears that he assumed he could hold the automobile until he was paid whatever sum he claimed was owed him by the owner.

There was reference during trial that Lyle held the automobile because he contended he was owed money for services rendered the owner; that he had held automobiles before and released them only after Farm Bureau paid him charges — either towing or ambulance — relative thereto. There was never any reference to a basis for a legal right to hold the vehicle until paid. The trial court in its judgment did not determine that Lyle had a lien of any kind. It merely stated that he had a “claim superior to that of the plaintiff with regard to the subject vehicle.”

On appeal, Lyle contends that he had both a lien under § 35-11-110, Code of Alabama (1975) (mechanic’s lien) and a common-law lien. Farm Bureau contends he had neither and no legal right to hold the automobile against the holder of the legal title. We agree with Farm Bureau.

There can be no question that Lyle had no statutory lien. Section 35 — 11— 110 by its terms does not apply to one providing towing or storing of an automobile. It applies only to a workman who contributes his labor or material to the “production, manufacture or repair” of a vehicle. Lyle did none of these things. The statute by its terms is supplementary to the common-law lien. Howell v. Dodd, 229 Ala. 393, 157 So. 211 (1934). The common-law artisan’s lien was lost if possession of the vehicle was relinquished. Voss & Co. v. Robertson, Brown & Co., 46 Ala. 483 (1871). The statutory lien comes into play and is available after possession has been relinquished and common law lien is lost. Tallassee Motor Co. v. Gilliland Bros., 22 Ala.App. 21, 112 So. 758, cert. denied, 216 Ala. 257, 112 So. 759 (1927). One cannot enforce the statutory lien provided by § 35-11-110 except by following the procedure (attachment) set out in § 35-11-111. Such procedure was not followed by Lyle and would have been inappropriate because he had not relinquished possession in any event. Therefore, no possible claim or lien upon which to maintain possession after demand by Farm Bureau could exist unless it be a common-law lien.

The principle upon which the common-law lien arose was that every bailee for hire, who, by his labor, material or skill, has imparted an additional value to the property placed in his hands had a lien thereon for the agreed or reasonable charges and the right to hold the property until paid. Such lien attached only to the specific property. 2 Kent’s Commentaries 635; VII Sir William Holdsworth, A History of English Law at 512; Alexander v. Mobile Auto Co., 200 Ala. 586, 76 So. 944 (1917). It has been held generally that a common-law lien is not applicable to towage and storage charges on an automobile. Murrell v. Trio Towing Service, Inc., 294 So.2d 221 (Fla.App.1976).

We have found no Alabama cases holding that either a common-law lien or a statutory lien may be acquired by a garage-man for towing or storage charges. We believe it clear, as previously stated, that by its terms, § 35-11-110 fails to provide a lien for such charges. As the statute is derived from and is merely supplementary to the common law, it logically follows that there is not a common-law lien for such charges. It is even more evident that there can be no lien, either common-law or statutory, for ambulance charges nor for the charges relating to the two vehicles of which Lyle had relinquished possession.

There being no lien, the trial court erred in its judgment granting Lyle a superior claim to and the right to hold the automobile of Farm Bureau and charge additional storage until the judgment is paid.

The evidence discloses that Farm Bureau, through an agent, demanded possession of the vehicle within two days after Lyle towed it in. Lyle wrongfully withheld possession and may not recover storage charges after that demand. Our review of the record convinces us that Lyle could recover judgment against Farm Bureau for none of the charges — towing, ambulance or storage — arising from the Allen vehicle. The evidence fails to disclose any agreement by Farm Bureau to pay any of such charges. Though a contractual obligation arising from the contract of insurance for Farm Bureau to pay towing, ambulance and storage charges to or for its insured may exist, such obligation is not to Lyle.

There was evidence that Farm Bureau agreed to pay the towing and ambulance charges relating to the two vehicles previously released. They totaled a sum of $150. The contention of Farm Bureau that its promise to pay such charges is void under § 8-9-2(3) Code of Alabama (1975) as an oral promise to pay the debt of another is not acceptable. Farm Bureau made its own promise to pay in return for a valuable consideration — the release to it by Lyle of the particular vehicle involved. It received that consideration and the statute does not apply. Locke v. Kay, 257 Ala. 376, 59 So.2d 70 (1952); Waters v. Blackmon, 228 Ala. 462, 153 So. 739 (1934).

For the error stated herein, the judgment below is reversed and the case remanded.

REVERSED AND REMANDED.

BRADLEY and HOLMES, JJ., concur.


author: PER CURIAM.

text:
    Ex Parte Ronald SMITH. (Re Ronald SMITH v. EAST SIDE MOTORS, INC.).
    Civ. 2569.
    Court of Civil Appeals of Alabama.
    Feb. 19, 1981.
    Danny R. Stewart, Birmingham, for petitioner.
    John W. Sudderth, Birmingham, for respondent.
   PER CURIAM.

Petitioner requests this court to grant a writ of mandamus to the Chancery Division of the Jefferson County Circuit Court.

Petitioner filed suit against respondent. The suit which sought money damages alleged (1) fraud, (2) conversion, (3) breach of warranty, and (4) violation of the Truth-in-Lending law. Petitioner demanded a trial by jury on the first three theories and requested a separate trial on the fourth. The court below denied petitioner’s demand for a jury trial and stated that he would try all the issues at one time. Petitioner now seeks relief in this court.

Mandamus is the proper remedy to enforce a right to trial by jury. Ex parte Merchants Nat’l Bank of Mobile, 257 Ala. 663, 60 So.2d 684 (1952). A party is entitled to a trial by jury if the issues presented by the pleadings are purely legal matters over which common law equity had no jurisdiction. Poston v. Gaddis, Ala.Civ. App., 335 So.2d 165, cert. denied, Ala., 335 So.2d 169 (1976). The issue of damages has always been recognized as a purely legal matter unless incidental to equitable relief. Id. Since the counts for fraud, conversion, and breach of warranty include the issue of damages, the petitioner is therefore in this instance entitled to a jury trial on those counts.

Petitioner also requests this court to require that the Truth-in-Lending claim be tried separately. Rule 42(b) of the Alabama Rules of Civil Procedure grants to the trial judge the discretion to order separate trials. Therefore, this matter is addressed to the learned trial judge’s discretion.

A writ of mandamus is due to be granted unless the respondent-trial judge, after being advised of this opinion, enters an order consistent with the above.

WRIT GRANTED CONDITIONALLY.

All the Judges concur.


author: TYSON, Judge.

text:
    Listle L. VAUGHN v. STATE of Alabama.
    4 Div. 706.
    Court of Criminal Appeals of Alabama.
    May 1, 1979.
    Application for Rehearing Overruled May 22, 1979.
    William M. Hammond, Troy, for appellant.
    Charles A. Graddick, Atty. Gen., and Paul E. Johnson, Asst. Atty. Gen., for the State.
   TYSON, Judge.

AFFIRMED.

All the Judges concur.

Judgment reversed, Ala., 395 So.2d 95, on remand, Ala.Cr.App., 395 So.2d 96, decision after remand, Ala.Cr.App., 395 So.2d 97.


text:
    Ex Parte Listle L. VAUGHN. (In re Listle L. Vaughn v. State of Alabama).
    78-619.
    Supreme Court of Alabama.
    Dec. 7, 1979.

      William M. Hammond, Troy, for petitioner. ./
    Charles A. Graddick, Atty. Gen. and Paul E. Johnson, Asst. Atty. Gen., for the State.
   JONES, Justice.

This case comes to us upon a petition for writ of certiorari. Petitioner was convicted of first degree murder in the Circuit Court of Pike County. The conviction was affirmed by the Court of Criminal Appeals on June 28,1977. On April 27,1978, Petitioner filed a petition for writ of error coram nobis alleging, among other things, that one of the jurors at his murder trial was related to the murder victim by consanguinity within the proscribed ninth degree. § 12-16-150(4), Ala.Code 1975. A hearing was had on the petition on October 4,1978, at which time, prior to the taking of testimony, the court dismissed those portions of the petition alleging the improper juror. Appeal was taken to the Court of Criminal Appeals, which affirmed the lower court without an opinion. Upon denial of application for rehearing, a petition for writ of certiorari was filed with this Court.

We granted the writ to seek clarification of the disposition of the petition in the court below. The authority of this Court to review the Court of Criminal Appeals on a constitutional issue, even in a “no opinion” context, is well established. Loyd v. State, 279 Ala. 447, 186 So.2d 731 (1966). The statute proscribing certain degrees of relationship between the victim and the jurors is an implementation of the fair and impartial trial guarantee of Art. I, Sec. 6, of our State Constitution.

From our preliminary review of the petition, it was not clear whether the lower court’s action was procedural or based upon the merits of Petitioner’s allegations. Our review of the record discloses that Petitioner’s allegations pertaining to an improper juror were dismissed by the trial Court as not being properly raised on a petition for coram nobis, resulting in a denial of Petitioner’s “improper juror” claim on its merits. We reverse and remand.

The office of writ of error coram nobis, under Alabama law, is to bring to the attention of the court an error of fact, unknown to the court or the affected party at the time of trial, which had it been known, would have prevented the judgment challenged; indeed, the writ is in effect a motion for new trial on the ground of newly discovered evidence. Tillis v. State, 349 So.2d 95 (Ala.Cr.App.1977), cert. den. Ex parte Tillis, 349 So.2d 100 (Ala.1977). As such, Petitioner’s challenge to his conviction, based upon an offer of newly discovered evidence to show the existence of an improper juror at his murder trial, was properly raised by way of petition for writ of error coram nobis.

Therefore, we reverse and remand to the Court of Criminal Appeals for remand with instructions to the trial Court to grant a hearing on the merits of Petitioner’s claim.

REVERSED AND REMANDED.

All the Justices concur.


text:
    Listle L. VAUGHN v. STATE.
    4th Div. 706.
    Alabama Court of Criminal Appeals.
    Jan. 22, 1980.
   Remanded on Authority of Ex parte Vaughn, Alabama Supreme Court, 78-619, December 7, 1979, 395 So.2d 95, with instructions to conduct hearing.

All Judges concur.

Decision after remand, Ala.Cr.App., 395 So.2d 97.


author: LEIGH M. CLARK, Retired Circuit Judge. LEIGH M. CLARK, Retired Circuit Judge.

text:
    Listle L. VAUGHN v. STATE.
    4 Div. 706.
    Court of Criminal Appeals of Alabama.
    Oct. 7, 1980.
    Rehearing Denied Jan. 20, 1981.
    William M. Hammond of Hammond & Hammond, Troy, for appellant.
    Charles A. Graddick, Atty. Gen., Paul E. Johnson, Asst. Atty. Gen., for appellee.
   After Return to the Remand

LEIGH M. CLARK, Retired Circuit Judge.

A judgment convicting this appellant of murder in the first degree and sentencing him to imprisonment for life was affirmed in Vaughn v. State, Ala.Cr.App., 347 So.2d 582 (1977). Thereafter, he filed in the trial court a petition for writ of error coram nobis. After a hearing on said petition, in which evidence was presented, the petition was denied. On appeal to this court, as heretofore shown in the report of this case, there was an affirmance without an opinion, as to which the Supreme Court of Alabama granted certiorari and “reverse[d] and remand[ed] to the Court of Criminal Appeals for remand with instructions to the trial Court to grant a hearing on the merits of Petitioner’s claim.”

The Supreme Court made it clear in its opinion that the trial court should not have dismissed portions of the petition for writ of error coram nobis to the effect that one of the jurors returning the verdict in the case was related to the murder victim by-consanguinity within the proscribed ninth degree (Code of Alabama 1975, § 12-16-150(4)), and that petitioner was entitled to a hearing, and should be given a hearing, on that issue. In compliance with the order of this court pursuant to the judgment of the Supreme Court, remanding the cause to the trial court for further hearing, the trial court has conducted another hearing, at which petitioner and his attorney were present, as shown by the trial court’s recent return to remand, which includes the order of the trial court of March 7, 1980, in part, as follows:

“Without extensive comment on the evidence it was clear from the evidence that the juror, namely, Carrie Copeland, was totally unaware of any kinship, relationship or otherwise to the deceased, Will Starks at the time of the petitioner’s trial. Further the evidence was clear from the testimony of the said Carrie Copeland that her relationship with the deceased, Will Starks was some fourth or fifth cousin at best. Further, it was clear from the evidence that the juror, Carrie Copeland was unaware of any kinship or relationship to the deceased, Will Starks until the attorney for petitioner, namely, Bill Hammond telephoned her at home and advising her of some possible kinship. It was further clear from the evidence that the attorney representing petitioner at his original murder trial, namely, attorney Carey Dozier knew of no relationship or kinship of any of the jurors, including Carrie Copeland to the deceased, Will Starks. It was further clear from the evidence that the petitioner, namely, Listle L. Vaughn did not know of any kinship or relationship of any juror including Carrie Copeland to the deceased at the time of the petitioner’s original murder trial.
“It is THEREFORE ORDERED, ADJUDGED AND DECREED by the court as follows:
“1. That the petitioner’s Writ of Error Coram Nobis is due to be DENIED both separately and severally as to any and all paragraphs of the original petition as well as any amendment thereto.”

We have reviewed the transcript of the evidence and other proceedings upon the last hearing of the petition for writ of error coram nobis and conclude therefrom that the trial court was correct in its determination as to the relationship between the named juror and the named deceased, Will Starks, and that she was totally unaware of any kinship or relationship to said deceased until she was informed thereof by an attorney for appellant long after the trial.

Although it appears that the named juror was probably related by consanguinity to the named murder victim within the ninth degree, which subjected her to a challenge for cause, the evidence is clear and convincing that such fact could not have had any influence whatever upon the juror in the trial of the case, as she could not have been influenced by any fact of which she was totally unaware. No prejudice to the defendant is to be found in that fact or in the unwitting failure of the juror to reveal it. Freeman v. Hall, 286 Ala. 161, 238 So.2d 330 (1970). We repeat and apply what was stated by Judge Tyson in Smithson v. State, Ala.Cr.App., 278 So.2d 766, 769 (1973):

“It is clear from the findings of the trial court that the witness Royer and the juror Royer were distantly related, and that neither was certain of their relationship. Further, they had not seen each other for several years and had never discussed the case at bar. It is also clear that the juror Royer did not recognize the witness Royer until he was actually seated in the witness stand, and this was why he did not respond at the time the question was asked, ‘Did he know.’ We are of the opinion that the finding by the trial judge in the case at bar properly applies the standard of Freeman v. Hall, supra, and that such finding is supported by the evidence in this cause. We therefore hold that there was no abuse of discretion by the trial court in denying appellant’s motion for new trial on the basis of the failure to answer on the part of the juror, Raymond T. Royer. Cooper v. Magic City Trucking Service, Inc., 288 Ala. 585, 264 So.2d 146; Bruno's Food Stores, Inc. v. Burnett, 288 Ala. 222, 259 So.2d 250; Harris v. Whitehead, 46 Ala.App. 516, 244 So.2d 603; Edwards v. State, 28 Ala.App. 409, 186 So. 582.”

The trial court was correct in denying the petition for writ of error coram nobis. Its judgment 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.

ON REHEARING

LEIGH M. CLARK, Retired Circuit Judge.

Pursuant to Rule 39(k) of the Alabama Rules of Appellate Procedure, appellant in applying for a rehearing has filed a request for the following statement:

“1. The prospective jurors were questioned by the court, prior to the striking of the jury at the trial from which this proceeding seeks relief, as to relationship to the victim, Will Starks.
“2. Carrie Copeland was a member of the jury panel and ultimately sat on the jury that convicted Listle Vaughn at said trial.
“3. Carrie Copeland was related to the victim Will Starks within the ninth degree consanguinity.
“4. Carrie Copeland’s grandfather and Will Starks’ (the victim) father were first cousins.
“5. Carrie Copeland remained silent when the jury panel was questioned at said trial about kinship to the victim Will Starks.”

We accede to the request, with the explanation that any uncertainty that may have been indicated in the opinion on original submission as to the relationship by consanguinity between the particular juror and the victim of the homicide was not based on any question as to the degree of such relationship as a matter of law when established by evidence as to which there could be no uncertainty. We note, as the trial judge evidently did in stating in the order of the court that “the evidence was clear from the testimony of the said Carrie Copeland that her relationship with the deceased, Will Starks, was some fourth or fifth cousin at best (emphasis supplied),” that the evidence on the question of the relationship between the juror and the victim was not a paragon of conclusiveness. This statement, however, is not made in criticism but to emphasize the difficulty of people in general, with the exception perhaps of experts in the field of genealogy, in resolving questions of kinship unless it is much closer than the ninth degree. Nevertheless, we are convinced that evidence on the hearing was sufficient to convince the trial court to conclude, and that it did conclude, that the juror was related to the victim within the ninth degree of consanguinity.

Appellant argues that Freeman v. Hall, 286 Ala. 161, 238 So.2d 330 (1970) and Smithson v. State, 50 Ala.App. 318, 278 So.2d 766 (1973) are distinguishable from the instant case and should not have been relied upon in our opinion on original submission after the return to the remandment. He correctly states that neither case involved a juror’s failure to make a response to a question that would have given an expressed statutory challenge for cause. He is also correct in stating that it was noted in the conclusion of the opinion in Freeman, supra, that it did not apply to a case where the failure to answer would have disclosed a challenge for cause.

We do not doubt that it has been made clearer by authorities in this jurisdiction and elsewhere that the failure of a prospective juror in a case to disclose upon proper interrogation the fact that would entitle the losing party to a challenge of the juror for cause is generally more likely to require a new trial when properly and timely requested by the losing party than does the failure of such a juror to disclose some fact as to which he is properly interrogated which would not subject the juror to a challenge for cause. We reexamine the question we have previously considered in the instant case, in the light of and with due regard for appellant’s earnest and continued insistence.

Appellant says that Little v. State, Ala. Cr.App., 339 So.2d 1071, cert. denied, 339 So.2d 1073 (1976) “explains the distinction and should control the case at bar.” Appellant correctly quotes from Little as follows:

“In Smithson v. State, 50 Ala.App. 318, 278 So.2d 766, the question did not concern a juror related to the injured party. Certain qualifications bear more weightily on the required impartiality of jurors. Thus, blood or marriage kinship to a party within certain degrees works an absolute disqualification of a venireman. Brazleton v. State, 66 Ala. 96. Also in criminal cases a more careful scrutiny is a necessity because of the more severe penalties possible.”

In Little, the wife of the foreman of the jury was “a blood first cousin of the deceased.” In holding that the case was distinguishable from Freeman, supra, the late Presiding Judge Cates said at 339 So.2d 1073:

“Here the jury foreman’s claimed ignorance of his wife’s kinfolk, if credible, somewhat exhibits an absent-mindedness calling in question his fitness to serve.”

We are convinced that the statement as last quoted from Little was a major factor in the reversal of the case. There would be a tremendous difference as a general rule between the credibility of a person who said he was ignorant of the fact that a prospective juror was his wife’s first cousin and the credibility of a person who said that she was ignorant of the fact that a prospective juror was a fourth or fifth cousin of hers. If they were both telling the truth, there would still be an equal difference between the “absent-mindedness calling in question his [her] fitness to serve” of the one and the like quality of mind of the other. In characterizing as “absent-mindedness” any failure of the prospective juror to know that the victim was a blood cousin of the juror’s wife, Judge Cates, in his inimitable ability to garnish language with the most appropriate words possible, admirably selected a euphemism. We have no difficulty in distinguishing this case from Little, supra.

The only other cases relied upon in the brief on the application for rehearing are Leach v. State, 31 Ala.App. 390, 18 So.2d 285, cert. denied, 245 Ala. 539, 18 So.2d 289 (1944) and Griffith v. State, 31 Ala.App. 432, 18 So.2d 284. Although Leach contains some language favorable to appellant on the point under consideration, it is not authority for the proposition advanced by appellant that the principle applied in our opinion does not apply to a case “where the failure to answer would have disclosed a challenge for cause.” Leach does not involve such a situation. In that case, the juror did not answer a question whether he had “previously served as a deputy sheriff” and thereby “failed to disclose that he had previously served as a deputy sheriff of the county for about fifteen years.” Leach has been cited with approval many times.

We have difficulty in distinguishing the instant case from Griffith, in which Leach, decided within the then previous two months, was almost exclusively relied upon to result in a reversal for a juror’s failure to disclose his “affinity to the alleged injured party within the fifth degree” irrespective of the fact that his testimony was that “he was ignorant of this relationship.”

We are persuaded that as of the present time, as well as of the time of the trial of this case, the state of the law in Alabama does not support appellant’s contention that a juror’s failure to respond affirmatively to a question, which if answered correctly would reveal an unwaived ground for a challenge for cause would necessarily give rise to a valid ground for a new trial even though the juror was unaware of the particular fact he did not disclose. Bufford v. State, Ala.Cr.App., 382 So.2d 1162, cert. denied, 382 So.2d 1175 (1980); Beauregard v. State, Ala.Cr.App., 372 So.2d 37, cert. denied, 372 So.2d 44 (1979). Beauregard did not involve the challengeable for cause situation, but it emphasizes the importance of whether a juror is aware or unaware of the fact he is called upon to disclose and contains a valuable recital of the authorities on the subject, without regard to the distinction that appellant attempts to make. In Bufford, the juror had failed to disclose that she was not a resident of the county in which the trial was conducted. She resided in an adjoining county. “Her failure to respond was not deliberate, nor intentional, but was probably from a lack of understanding concerning the meaning of ‘resident householder or freeholder.’ ” It was stated at 382 So.2d 1172-1173:

‘Had the juror made a truthful answer to the court’s question on voir dire, she would have been subject to challenge for cause. However, the mere fact that she resided in an adjoining county does not per se require a reversal of this cause. Nonresidency in such a case does not impute prejudice per se. In fact there are times when nonresident jurors would be less likely to bear prejudice or bias against a defendant. A notorious case where feelings are high and tempers hot within a community is a prime example. A case where a well-known and highly regarded public official of the county is brutally murdered by a convict would lead one to think that residents of the county would be more likely to bear ill will toward the accused than would the resident of another county. The most glaring analogy is in the case of a change of venue. Although the appellant did not request a change of venue in the instant ease, our statutes nevertheless allow for such a procedure. Section 15-2-20, et seq., Code of Ala. 1975. In those cases where change of venue has been granted, an accused would be tried by a jury composed entirely of persons who were not residents of the county from which the case was transferred. Therefore, there is no inherent prejudice attributed to a trial by a nonresident or nonresidents of the county in which the offense was committed.
“A full hearing was held on the issue of the nonresident juror, both sides had an opportunity to put on evidence, and the trial judge wrote an extensive order overruling that motion. We are unable to say that the trial judge abused his discretion or that prejudice to the appellant was shown by the evidence presented at that hearing.”

That there are grounds for disqualification, for challenge for cause, of prospective jurors that would serve to vitiate a conviction by a jury composed of one or more jurors who had not disclosed upon proper inquiry the existence of such a ground, even though he was not aware thereof, is supported by logic and by authorities in this State. Wells v. State, Ala.Cr.App., 331 So.2d 802, cert. denied, 331 So.2d 803 (1976); Beasley v. State, 39 Ala.App. 182, 96 So.2d 693 (1957); Gardner v. Baker, 40 Ala.App. 374, 113 So.2d 695 (1959). In Wells and in Gardner v. Baker, the ground for challenge was that the juror (jurors) was over 65 years of age; in Beasley, the ground was that the juror had been previously convicted for a crime involving moral turpitude. It was held in each case that the failure of the juror to disclose grounds for challenge for cause justified a new trial on appropriate application by the losing party irrespective of any question or knowledge or understanding on the part of the juror. It is to be readily observed that the significance of a valid ground for challenging a prospective juror by reason of his prior conviction of a crime involving moral turpitude is not to be found in whether he knows that he has been convicted of such a crime but in the fact alone that he has been convicted of such crime. It is also to be readily recognized that the significance of the ground for challenge for cause by reason of being over the age of 65 to be found solely in the fact that the juror is over 65 years of age, which is unaffected by any understanding of the particular jur- or as to the meaning of the question that was asked as to his age. On the other hand, the rationale of permitting a challenge for cause of a juror who is related to a party, or to an injured or deceased victim of an alleged crime, is to be found solely in the fact that if and when, but only if and when, the juror is aware of the relationship there is some danger of bias by reason of the relationship.

Griffith v. State, supra, has been approvingly cited several times, but not generally in purported application to the specific question now under consideration. In marked contrasts are the numerous citations with approval of Leach v. State, supra. We do not find that it has been definitely held in any case in Alabama, other than Griffith, that the fact that a juror who is related within the prohibited degree to a party, or the injured or deceased victim of the crime that is being litigated, did not disclose such relationship when in fact he was not aware of any relationship gives rise to a valid ground for a motion for a new trial by the losing party.

It cannot be said as a matter of law or reason that a losing party was injured, that he was probably injured or even that he “might have been injured” by what a juror could have had in mind when it is conclusively established that he did not have it in mind at any time while serving as a juror in the case. The undisputed evidence shows, and the trial judge concluded, after a lengthly hearing, that the juror “was totally unaware of any kinship, relationship or otherwise” to the victim of the homicide at the time of the trial, which removes not only any probability but also any possibility of prejudice to petitioner-appellant. We quote with approval from Murphy v. State, Tenn.Cr.App., 560 S.W.2d 414, 415, in which there was involved a “statutory disqualification” of a juror by reason of relationship to the prosecuting witness:

“Furthermore, we note that here, as in Cartwright, supra, the juror had no knowledge of her relationship to one of the parties at the time she was seated, and did not learn of the relationship until after the trial was completed. Under such circumstances, no prejudice to the defendant can be shown. There being no merit to the assignment, it is therefore overruled.”

The application for rehearing should be overruled.

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.

OPINION EXTENDED; APPLICATION FOR REHEARING OVERRULED.

All the Judges concur.


text:
    Essel McDonald GLENN, alias v. STATE.
    6 Div. 282.
    Court of Criminal Appeals of Alabama.
    Oct. 7, 1980.
    Rehearing Denied Oct. 28, 1980.

      Donald W. Davis, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen., and J. Thomas Leverette, Asst. Atty. Gen., for ap-pellee.
   TYSON, Judge.

Essel McDonald Glenn was indicted for assault with intent to murder one William Stidham, an Alabama Power Company employee. Glenn pleaded not guilty, and at trial was found guilty of assault and battery by the jury, which assessed a fine of $500.00. To this fine was added a sentence of six months at hard labor for the county by the court, and Glenn’s petition for probation was denied.

William Stidham, a Birmingham resident, testified that he was a service troubleman employed by Alabama Power Company, and that part of his job involved restoring electric service to individuals whose service had been terminated for nonpayment. He stated that, on July 30,1979, while so employed, he received a radio call to proceed to 3715 Banks Street in Brighton to restore electric service to that residence. Mr. Stidham stated that he arrived at the location at 3:00 o’clock and stopped at a house to inquire of the occupant where 3715 Banks was situated. He testified that he “happened” to stop at appellant’s house, and appellant told him that he was at the right house. Mr. Stidham identified appellant as the individual he talked with. He further stated that, being unable to park directly in front of appellant’s house, he drove down the street a short distance and parked there. He then walked between appellant’s house and the neighboring house to the location of appellant’s electric meter and proceeded to work on the meter. After finishing that task, the witness stated, he proceeded to return to his truck in order to drive around to the alley where a pole containing appellant’s power lines was located. He stated that he exchanged a few words with a neighbor and was walking down beside appellant’s house when appellant “asked was I the S.O.B. that turned his lights off” (R. 10). Mr. Stidham stated that he told appellant that he had not turned the power off but was only trying to turn it “back on,” at which point appellant said, “ ‘You S.O.B., I’m going to kill you’ ” and “ ‘I’m going to kill all of you damn Power Company men’ ” (R. 11). After attempting to calm appellant down, Mr. Stidham testified, he tried to return to his truck, and, as he walked by appellant, appellant stated, “ ‘You S.O.B., you are fifteen feet on my property. I'm going to kill you’ ” (R. 11). The witness stated that he turned around and saw appellant holding a .22 rifle, and that appellant began firing at him. Mr. Stidham testified that he started running and that bullets were hitting in the dirt behind him. He further stated that he was shot twice in the leg and “the last few shots went zooming by my head and shoulders” (R. 12). He testified that, upon reaching the truck, he radioed that he had been shot, and then he drove about a block and a half to the Brighton police station. He also stated that, though he had used a screwdriver to reassemble appellant’s meter, he had not removed it from his tool pouch after that.

On cross-examination Mr. Stidham stated that he could not remember having yelled anything at appellant as he left, that he intended to institute a civil action against appellant, and that he could not remember whether the two Brighton police officers who left the station for appellant’s house had a shotgun.

Officer David Tucker, a Birmingham resident and patrolman with the Brighton Police Department, testified that he had been on duty at the police station around 3:00 o’clock on July 30,1979, when William Stid-ham entered the building and said that he had been shot. He stated that Mr. Stidham told him that the location of the shooting was 3715 Banks Street, and that subsequently he [Officer Tucker] and Brighton Police Chief Sims went to that address. When they arrived, they saw appellant sitting on his porch and the chief instructed appellant to come to the car. Officer Tucker testified that appellant in turn told the chief to come there, and the officer and the chief proceeded to get out of the car. At that point, Officer Tucker stated, appellant “reached for the gun” (R. 30) resting against a banister on the porch; the officer stated that he told appellant that “I wouldn’t do it if I was him” (R. 30). The officer then testified that, when he told appellant that he wanted to talk to him about the shooting, appellant replied, “ ‘Yes, I shot him’ ” (R. 30). Appellant was then taken to the police station. Officer Tucker stated that he took the .22 rifle, examined it and concluded that it had been recently fired. The rifle was received into evidence.

On cross-examination, Officer Tucker stated that, though his police car had a shotgun mounted in it, he did not remove the gun upon arrival at appellant’s house, and did not remember seeing the chief with it. He stated that the gun could only be removed by pressing a button on the driver’s side, and that he had not pressed the button that day. He reiterated his testimony that appellant said, “ T shot him’ ” and stated that appellant was not under arrest when he took him to the police station, but that he was transferred to the county jail a short time later.

The State rested at this point, and appellant’s motion to exclude the evidence was overruled.

The first defense witness was Mrs. Helen Glenn, who stated that she had been married, divorced and remarried to appellant. She testified that, during the week prior to July 30, 1979, she was in Akron, Ohio, with her mother, and that appellant had driven there to bring her back to Alabama. She and appellant arrived at appellant’s residence during the early morning hours of the Sunday immediately preceding July 30, 1979, and upon arrival discovered that the power had been turned off, causing food stored in the freezer to spoil. She stated that she was listening on another line when her husband called the Power Company about restoring the power, and that the Power Company person was “very rude” (R. 53), but that appellant was not rude nor did he threaten to kill anyone. On cross-examination, Mrs. Glenn stated that she was not present during the incident on July 30, 1979, and thus did not know if appellant had threatened Mr. Stidham or not.

Mrs. Bonita Martin, the next door neighbor of appellant, testified that, on July 30, 1979, at around 3:00 o’clock, she had been outside hanging out some laundry when she saw a Power Company employee between the two houses. She testified that he made some small talk with her and that he walked around her back yard to look at the power pole. She stated that he then left and walked back down between the two houses; at that point he asked appellant "how it was going,” to which appellant replied, “ ‘Not too good’ ” (R. 59). She then testified that she heard the Power Company man tell appellant that if appellant wanted to talk to him, he [appellant] would have to come out in the alley. The next thing she heard was the Power Company man saying, “ ‘If you shoot me with that gun, you son of a bitch, you won’t shoot nobody else with it’ ” (R. 60), after which she heard shots. Mrs. Martin stated that she then saw the Power Company man sitting in his truck talking on the radio, and that he shouted to appellant, “‘You’re going to pay for this, big Daddy’ ” (R. 61) as he drove off.

Following this incident, Mrs. Martin stated, she witnessed one white and one black Brighton police officer arrive at appellant’s house, and that one had a shotgun. She saw the black officer approach appellant’s porch, and saw them in conversation but could not hear what was said. She stated that the officer told appellant to “ ‘just shut up and get in the car’ ” (R. 65), and that they then took appellant away. She did not see appellant reach for his rifle. On cross-examination, the witness stated that she did not see the Power Company man with a screwdriver in his hand and did not see the actual shots fired because she retreated into her house.

The appellant took the stand in his own defense and stated that he was employed at Pullman Standard and had formerly been a member of the United Steelworkers Union. At this point a lengthy discussion was had, with the jury retired, concerning the extent to which appellant would be permitted to testify concerning union difficulties. At the conclusion of this discussion, appellant stated that he had driven to Ohio to retrieve his former wife [they were not remarried at the time], and upon returning to his home, they had discovered that the power was off and an “awful odor” was present in the house from spoiled food in the freezer. He stated that, upon phoning the Power Company, he was told that he would have to put down another deposit and pay his delinquent bill before his power would be restored. He testified that, on Monday, July 30,1979, he went out to Pullman Standard, picked up his pay check, went to the bank and then downtown to take care of the power business. When he returned, he mowed his grass and was then seated on his front porch when the Alabama Power truck pulled up and the driver inquired as to the address. He stated that the man parked the truck a short way down the street and was walking by the porch on the way to the meter when he inquired of appellant how he was doing. Appellant stated that when he replied, “ 'Better than most,’ ” the Power Company employee turned and said, “ ‘What do you mean by that, you scabbing son of a bitch’ ” (R. 88). Appellant then testified that, in 1976, he had crossed a picket line at Pullman Standard, and that he had been subsequently beaten at his home by two union members. He had then purchased a .22 rifle, which he kept loaded and “always where I can get to it if I need it” (R. 91). Appellant testified that, after being called a “scabbing son of a bitch,” he told the Power Company man, William Stidham, to calm down and that he did not want any trouble. He stated that Mr. Stid-ham then advanced on him with a drawn screwdriver, and at that point appellant grabbed his rifle and fired into the ground in front of Mr. Stidham after Stidham told him that if he shot Stidham he would “never shoot nobody else” (R. 94).

Appellant then testified that Mr. Stidham fled to his truck and left. The appellant stated that, within a few minutes, two Brighton police officers arrived, and one of them, Officer Tucker, aimed a shotgun at appellant and told him to raise his hands. Appellant denied reaching for his own gun, and denied ever stating that he would kill Stidham or other Power Company employees. He stated that he called W. G. Parn-ham from the Brighton Police Station, and was later transferred to the county jail.

The last witness was W. G. Parnham, a friend of appellant, who testified that he was called by appellant on the day in question and told appellant was in jail. He stated that he went to the Brighton Police Department and, while there, be overheard a black police officer talking to a group about the incident. He identified the officer as Officer Tucker, but was not permitted to testify as to the contents of the officer’s conversation which he overheard.

I

Appellant’s initial contention concerns the failure of the trial court to sustain appellant’s challenge for cause of a juror because the juror in question was an employee of Alabama Power Company. Upon questioning by the trial court as to whether his employment with the Alabama Power Company would cause him embarrassment, or place him in an awkward position in regard to this case, the juror replied in the negative. The trial court then overruled the challenge for cause. The fact that a prospective juror “has an interest in the conviction or acquittal of the defendant” is, of course, a good ground for challenge of that juror according to our statute, § 12-16-150, Code of Alabama 1975. Notwithstanding those instances where a clear-cut interest exists, as when an insurance company is either directly or indirectly involved, Mitchell v. Vann, 278 Ala. 1, 174 So.2d 501 (1965), the question as to whether to sustain a challenge for cause on the ground of interest or bias is one addressed to the sound discretion of the trial court. Alabama Power Company v. Henderson, Ala., 342 So.2d 323 (1976); Motes v. State, Ala.Cr.App., 356 So.2d 712, cert. denied, Ala., 356 So.2d 720 (1978). On the facts here presented, we do not believe that employment by Alabama Power Company, when he did not know the assaulted party, would prima facie indicate an interest or bias on the part of a juror, and we thus hold that the trial court did not abuse its discretion in overruling the challenge for cause. Cf. Mims v. Mississippi Power Company, 282 Ala. 90, 209 So.2d 375 (1968); Albright and Wood, Inc. v. Wallace, 274 Ala. 317, 148 So.2d 240 (1962); Grandquest v. Williams, 273 Ala. 140, 135 So.2d 391 (1961); Thigpen v. State, Ala.Cr.App., 355 So.2d 392, affirmed, Ala., 355 So.2d 400 (1977).

II

Appellant argues secondly that the trial court committed reversible error in overruling appellant’s timely motions to exclude the State’s evidence as to a remark made by appellant on the day in question, and as to the rifle allegedly used in the shooting. There was testimony from Officer Tucker that, when he and Chief Sims approached appellant and asked him about the shooting, appellant replied, “Yes, I shot him.” The appellant argues that the remark should have been suppressed because appellant had not been given his Miranda rights at the time of the questioning. Our review of the record, however, indicates that testimony concerning the incriminating remark was elicited at least three times during the trial, twice during appellant's own cross-examination of Officer Tucker. We also find that no objection was interposed by appellant’s counsel during any part of these three instances. It is well settled that a failure to object to the admissibility of evidence, including incriminating statements, introduced at trial will preclude this Court from reviewing the question on appeal. Murry v. State, Ala.Cr.App., 367 So.2d 985 (1978), cert. denied, Ala., 367 So.2d 989 (1979); Wright v. State, Ala.Cr. App., 343 So.2d 795, cert. denied, Ala., 343 So.2d 801 (1977).

Appellant also contests the admissibility of the rifle into evidence, arguing that it was the fruit of an illegal search and seizure. Again, we find from the record that appellant’s counsel did not register this objection at trial, instead limiting his voir dire of Officer Tucker to a comparison of the serial numbers. This failure to object similarly precludes our review of the trial court’s actions in regard to the rifle in question. Lambert v. State, Ala.Cr.App., 358 So.2d 773, cert. denied, Ala., 358 So.2d 778 (1978); Woodward v. State, 52 Ala.App. 524, 294 So.2d 772 (1974); Hegmon v. State, 50 Ala.App. 486, 280 So.2d 192 (1973).

Ill

It is appellant’s next contention that the trial court erred in sustaining the prosecutor’s objections to a certain line of inquiry which appellant was attempting to pursue. Specifically, appellant desired to introduce testimony concerning prior difficulties between appellant and members of a labor union at appellant’s place of employment. Appellant argues that this line of testimony was extremely important in that the victim of the shooting, Mr. Stidham, allegedly called appellant a “scabbing son of a bitch” immediately prior to the shooting. Thus, appellant contends, the jury should have been permitted to hear the testimony of prior union troubles and decide if such troubles had any bearing on the events of the day in question.

We find from the record that, upon the initial objection by the prosecutor to this line of inquiry, a lengthy conference outside the presence of the jury was held and the following said:

“THE COURT: ... But, just to give you an idea where I might stand, I think it is relevant that generally Mr. Glenn has had some problems without getting into specifics.
“MR. DAVIS: Yes, sir. I didn’t intend to go into specifics.
“THE COURT: If you ask him what Mr. Stidham said, then he can certainly testify to what the remark was. You can ask him if he had an altercation at his house as to why he would keep a loaded rifle. I’m certainly not going to allow every minute detail of the problems that Mr. Glenn has had along the way.
“MR. DAVIS: Yes, sir.” (R. 82)

With the jury present, appellant was permitted to testify that Mr. Stidham had called him a “scabbing son of a bitch,” but the trial court sustained the prosecutor's objection to the question, “Now, Mr. Glenn, have you ever been called a scab before,” as irrelevant. The only other objection sustained by the court during this line of inquiry occurred during the following:

“Q. (By Mr. Davis) During your conversation with the Power Company that you had on Sunday and Monday relative to getting your power turned on, what, if anything, had you told any Power Company employee about problems you might have had previously with the labor union?
“MR. ARMSTRONG: Object to the form of the question.
“THE COURT: Sustain the objection.
“THE COURT: Mr. Davis, I’m sustaining as to the form of the question. The answer to that question wouldn't be relevant to this case in my opinion.” (R. 89)

Appellant was permitted to testify that he had been beaten by union members at his house, and for that reason had purchased a .22 rifle, which he kept within reach.

The determination of the relevancy or lack thereof as to a particular line of inquiry is addressed to the sound discretion of the trial judge. Hill v. State, Ala.Cr. App., 366 So.2d 296 (1978), affirmed, Ala., 366 So.2d 318 (1979). In Hoomes v. State, 34 Ala.App. 121, 37 So.2d 686, cert. denied, 251 Ala. 392, 37 So.2d 690 (1948), the concept of relevancy was discussed:

“The general rule is declared in Gafford v. State, 122 Ala. 54, 25 So. 10, 18: ‘Whatever tends to shed light on the main inquiry, and does not withdraw attention from this main inquiry, by obtruding upon the minds of the jury matters which are foreign or of questionable pertinency, is, as a general rule, admissible evidence.’ ”

From the testimony, appellant was permitted to relate what Mr. Stidham had called him, that he had had prior union difficulties, that he had been beaten, and that he kept a loaded rifle handy for that reason. Given his testimony on these matters, which was before the jury, we fail to see the relevance of whether appellant had been called a “scab” before this incident, or whether appellant informed Power Company employees of that trouble. The trial court did not abuse its discretion in sustaining the prosecutor’s objections to those two questions.

IV

During the prosecutor’s cross-examination of appellant, the following exchange took place:

“Q. Your lawyer asked you if you had any trouble with the labor unions and you said yes. And, is that the trouble you were talking about?
“A. Yes, sir.
“Q. Had any more?
“A. Yes, sir.
“Q. Have occasion to run through some people out there on the picket line out there at Pullman and knock them down with your car?
“THE COURT: Take the jury out, Mr. Carter.
“THE WITNESS: Trying to argue another case.
(Jury not present)
(Off the record)
(Jury present)
“THE COURT: Ladies and gentlemen, before you went out, there was a question asked and an objection stated. I don’t believe the question was answered. But, I sustained the objection to the question as it was an improper question. Is there anyone here who cannot disregard or erase and not consider it as evidence in this case? There are no hands, let’s proceed.” (R. 119-120)

No motion for mistrial appears on the record, but appellant argues that the trial court should have declared a mistrial because of the prejudicial nature of the question asked by the prosecutor. The grant or denial of a mistrial is within the discretion of the trial court. Shadle v. State, 280 Ala. 379, 194 So.2d 538 (1967); Retowsky v. State, Ala.Cr.App., 333 So.2d 193 (1976); Woods v. State, Ala., 367 So.2d 982 (1978); Donahoo v. State, Ala.Cr.App., 371 So.2d 68, cert. denied, Ala., 371 So.2d 74 (1979); Perry v. State, Ala.Cr.App., 371 So.2d 969, cert. denied, Ala., 371 So.2d 971 (1979). As we find from the record that the trial court acted immediately to question and instruct the jury, these actions of the trial court erased any possible prejudicial effect to appellant, and a mistrial would not have been proper. Earley v. State, Ala.Cr. App., 358 So.2d 494, cert. denied, Ala., 358 So.2d 501 (1978); Lawson v. State, Ala.Cr. App., 377 So.2d 1115, cert. denied, Ala., 377 So.2d 1121 (1979); Woods v. State, Ala.Cr. App., 344 So.2d 1225 (1976), cert. quashed, Ala., 344 So.2d 1230 (1977); Gavin v. State, 52 Ala.App. 469, 294 So.2d 169, cert. denied, 292 Ala. 722, 294 So.2d 170 (1974). We also note that the question, albeit improper, was not answered, and was thereby rendered harmless. Kennedy v. State, Ala.Cr.App., 373 So.2d 1274 (1979); Brown v. State, Ala. Cr.App., 366 So.2d 334 (1978); Ellenburg v. State, Ala.Cr.App., 353 So.2d 810 (1977).

V

During the direct examination of W. G. Parnham, a witness for appellant, counsel for appellant attempted to develop a line of questioning concerning statements allegedly made by Officer Tucker to others at the Brighton police station after appellant had been taken there. The question, “What did the black police officer say at that time?” was objected to by the prosecutor, which objection was sustained. At no point during the examination of Officer Tucker was any testimony elicited concerning this alleged conversation at the police station.

At the time of the objection, appellant’s counsel made what appears to be an offer of proof in that the proposed testimony as to the officer’s conversation would show “an admission against interests — against the self interest of Officer Tucker” (R. 133). While what appellant hoped to show is unclear from this offer of proof, it is apparent that the question asked of witness Parnham called for rank hearsay from that witness and was thus inadmissible. Johnson v. State, Ala.Cr.App., 353 So.2d 62 (1977); Orforda v. State, Ala.Cr. App., 339 So.2d 1038, cert. denied, Ala., 339 So.2d 1042 (1976); Muller v. State, 44 Ala. App. 637, 218 So.2d 698 (1968), cert. denied, 283 Ala. 717, 218 So.2d 704 (1969). And if, as appellant now contends, this was some attempt to impeach the testimony of Officer Tucker, it was an improper method of doing so in that a proper predicate was never laid. Chambers v. Culver, 289 Ala. 724, 272 So.2d 236 (1973); Arnold v. State, Ala.Cr.App., 339 So.2d 616 (1976); Brown v. State, 50 Ala.App. 702, 282 So.2d 322 (1973).

VI

Appellant’s final contention concerns the refusal of the trial court to give a written instruction requested by appellant. Review of the refused charge reveals that it concerns the elements of assault with intent to murder, substantially covered in the court’s oral charge. Appellant argues, however, that the trial court committed reversible error in failing to read the last two sentences of the written charge. Whether this was truly error or not makes no difference, for appellant’s conviction of assault and battery acted as an acquittal of assault with intent to murder; thus, this refused charge, which dealt only with assault with intent to murder, need not be considered on appeal. Vaughn v. State, 45 Ala.App. 169, 227 So.2d 801 (1969); York v. State, 34 Ala.App. 188, 39 So.2d 694 (1948), cert. denied, 252 Ala. 158, 39 So.2d 697 (1949); Williamson v. State, 28 Ala.App. 92, 179 So. 398 (1938).

We have carefully reviewed this record, and find same to be free from error. The judgment is, therefore,

AFFIRMED.

All the Judges concur.