text:
    ALLSTATE INSURANCE COMPANY, Danny Costello and Elaine Costello v. RICHARDS ELECTRIC COMPANY, INC., et al.
    82-736.
    Supreme Court of Alabama.
    Feb. 24, 1984.
    David H. Meginniss of Hornsby, Blankenship, Robinson & Meginniss, Huntsville, for appellants.
    Beverly J. Paschal of St. John & St. John, Cullman, for appellees.
   MADDOX, Justice.

This is a subrogation case, based on a fire loss, in which, at the close of the plaintiff/appellants’ evidence, the defendant moved for a directed verdict on each of five counts of the complaint, and the trial court granted the motion as to all counts. We reverse and remand.

The case arose as a result of a house fire on January 5, 1981. The evidence tended to show that the fire apparently started around a chimney or flue which ran from a wood-burning heater in the basement up through the middle of the house. This heater was installed as a supplement to the central heating unit.

The Costellos testified they had personally built most of the house. Mrs. Costello’s brother is a building contractor and helped with much of the construction on the house. Certain parts of the house, such as plumbing, wiring and the central heating and air conditioning, were “contracted out” to professionals in these areas.

The Costellos claimed that they had made an oral contract with Richards Electric Co., Inc., to install a central heating and air conditioning system, and that this contract included the purchase and installation of a metal flue for a wood-burning heater. Richards Electric denied its agents had agreed to install the flue or that its agents had installed the flue to the wood-burning heater. Richards Electric did admit that it had agreed to install the central heating and air conditioning and an auxiliary venting system from the wood heater to the central system. The complaint contained counts of breach of contract, breach of warranty, products liability, negligence and misrepresentation.

The plaintiff presented evidence through an expert, the local volunteer fire chief, which tended to show that the fire had started because either the flue was choked by the damper being closed too tightly, or the flue was overburdened with creosote from inadequately burned fuel, which caught fire, or that the flue was too close to the wood framing of the house, or a combination of the three. The plaintiffs presented no other evidence as to whether the flue was improperly installed, nor as to whether the flue material was the standard material used in the industry.

Richards Electric claims that a directed verdict was proper in the case, because the plaintiffs failed to prove that it had contracted to install the chimney flue. On the other hand, the plaintiffs contend that they presented at least a scintilla of evidence that Richard Electric had agreed to install the flue and had, in fact, installed it.

The plaintiffs presented evidence that Mrs. Costello had negotiated with Richards Electric to have a central heating and air conditioning system installed, and, regarding the flue, Mrs. Costello testified that she “wanted” Richards Electric to install a flue for the wood-burning heater. She testified that she went to Richards Electric on at least two occasions. On the first occasion, she testified, she

“... stopped on one afternoon and talked to Richards Electric about installing a central heating and air conditioning system. And, talked to them — told them that I wanted to put in a wood heater. They told me to come back with my house plans; they would have to have those.”

On the second visit to Richards Electric, Mrs. Costello testified that she “asked him [Dennis Richards] about putting in a flue, is when I did that.” Regarding this second visit to Richards Electric, Mrs. Costello was asked on direct examination:

“Q. Did you describe to him what you wanted him to do with regard to the wood heater or did he describe it to you?
“A. No, I left that up to him.
U * * *
“Q. What did anybody else say on that occasion — the second occasion that you were in there?
“A. The second occasion there was not much said. I dropped my house plans off and stated that we were going to install — wanted to install a wood heater and that we wanted to carry the air upstairs through a vent and, he said, they could do that.
“Q. Okay. Did you have any other conversations at any other time with anybody from Richards Electric Company?
“A. I stopped by a third time to pick up my house plans.
“Q. When was that? Do you know?
“A. He called — told me he had finished with them. To give me an estimate on the cost of the heat pump and Carrier air conditioning system. I did not get a cost of the venting for the hood that sat over the wood heater, nor a cost of any other sheet metal work that was to be done in the house at that time.”

Mr. Costello testified on direct examination that he had had a conversation with a “blonde gentleman” at the building site, as follows:

“THE WITNESS: I asked him what he was going to do to install this flue and where and exactly for him to explain to me how it was going to be put in.
“Q What did he say to you?
“A He explained to me that the vents — the return — the vent that was to go over the top of the heater was to be hooked into the return vent and he explained to me about making a vent return exactly the same size as the heater and going to the heating and air conditioning unit. And, he, also, explained to me that he would install the flue that carried the smoke out of the house through this air directly above the wood-burning heater.
“Q Was that the end of your conversation?
“A Yes, sir.
“Q What did you do then?
“A I went to work that day.
“Q When did you return home?
“A In the evening around 5:00 or 5:30, probably.
“Q What, if anything, did you observe when you returned?
“A At this time all of this work that I discussed with him was installed including the flue that goes up through the center of the house and the return vent that went to the heating and air conditioning unit.”

On cross examination, Mr. Costello testified further regarding the alleged oral contract with Richards Electric to install a flue for the wood-burning heater:

“Q Did you ever go to Richards Electric Company and ask them to do any electrical work at your house?
“A No, ma’am.
“Q Did you ever go to Richards Electric Company and ask them to install a heat pump — a Carrier heat pump at your house?
“A No, ma’am, I did not.
“Q It was your wife that did that, wasn’t it?
“A Yes, ma’am.
“Q Did you ever go to Richards Electric Company and ask them to install a hood over a wood-burning stove?
“A No, ma’am.
“Q It was your wife that did that, wasn’t it?
“A Yes, ma’am.
“Q Did you ever — Excuse me.
“So, you never heard any negotiations between Richards Electric Company and your wife concerning the installation of the heater? You were never present when they were discussing any of this business?
“A No, ma’am.
“Q Were you at the house when the wood heater was installed?
“A I don’t know.
“Q Were you at your home at the house that you were constructing — were you there when the wood-burning heater was installed?
“A No.
“Q Were you there when the chimney flue was installed?
“A No.
“Q So, you never saw anybody install the wood-burning heater or the chimney flue?
"A No.”

Richards Electric offered an affidavit by Dennis Richards, president of Richards Electric and owner of 50% of the stock, with its pleadings, which, in pertinent part, reads:

“On or about October, 1979, Richards Electric Company was contacted through me by Mrs. Elaine Costello for the purpose of installing a central heat pump system in her home....
“Mrs. Costello made several trips to our office and telephone calls to our office consulting me about this work. In addition to the installation of the central heat system, Mrs. Costello later requested that Richards Electric Company install a vent over a wood-burning heater located in the basement of the house. That vent was to be connected to the duct work of the central heat system. The purpose of this was to capture heat rising from the wood-burning heater and circulate it through the house. At no time in our discussions of this matter did Mrs. Costello request that Richards Electric Company install the wood-burning heater. Richards Electric never billed the Costellos for the installation of a wood-burning heater; Richards Electric Company never furnished any materials to the Costellos for the purpose of installing a wood-burning heater and Richards Electric Company never received any compensation from the Costellos for the installation of a wood-burning heater. It is the best of my knowledge and belief that Richards Electric Company never installed a wood-burning heater at the home of Danny and Elaine Costello.”

The plaintiffs argue that “the trial judge committed reversible error by finding that the plaintiff did not produce even a scintilla of evidence to support any of the allegations, thus preventing the case from being determined by a jury.” They cite Rose v. Miller & Co., Inc., 432 So.2d 1237 (Ala. 1983); Great Southwest Insurance Com pany v. Stone, 402 So.2d 899 (Ala.1982); Herston v. Whitesell, 374 So.2d 267 (Ala.1979); Birmingham Electric Co. v. McQueen, 253 Ala. 395, 44 So.2d 598 (1960); Ala.R.Civ.P. 50.

Richards Electric argues there was not a scintilla of evidence presented by the plaintiff on any of the counts in the complaint. It contends that the evidence presented by the plaintiffs showed only that “the plaintiff [sic] had a fire in their home from which they suffered damages,” and “that this fire originated around the chimney of a wood heater, and in the opinion of the fire chief could have been caused by anyone [sic] or a combination of several factors.” Admittedly, the evidence is weak on showing that a contract existed, but we are of the opinion that the plaintiffs offered at least a “gleam, glimmer or spark” of evidence necessary to have their case go to the jury.

The standard of review this court must use is as follows:

“[T]he test in reviewing the propriety of the affirmative charge is not what our view may be of the weight of the evidence or even what inferences we may think more probable, but if from the proven facts and circumstances a reasonable inference may be drawn to substantiate the claimed culpability of the defendant, the charge must be refused.”

Birmingham Electric Co. v. McQueen, 253 Ala. 395, 398, 44 So.2d 598, 601 (1950).

The basic issue thus becomes whether the plaintiff offered any evidence which tended to lead to a reasonable inference that the defendant orally contracted with the plaintiffs to install the flue and that the defendant did, in fact, install the flue. For if no reasonable inference could be drawn from the evidence to show the defendant had orally contracted to install the flue and had installed the flue, none of the theories of the complaint could stand. As we have already stated, we think the plaintiffs offered at least a scintilla of evidence on this issue; therefore, the judgment of the court is due to be reversed and the cause remanded for a new trial.

REVERSED AND REMANDED.

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

      . Danny and Elaine Costello are the owners of the house and had a fire insurance policy with Allstate Insurance Company, which paid all but $100 of the $13,059.78 claim.

      . Originally, suit was brought against the manufacturer and the seller of the wood heater. These defendants were dismissed following pro tanto settlements.


source: Caselaw Access Project

author: JONES, Justice.

license: Public Domain

text:
    Louise FELDER v. Isaac HILL.
    82-814.
    Supreme Court of Alabama.
    Feb. 24, 1984.

      Jasper B. Roberts, Montgomery, for appellant.
    Robert J. Varley of Legal Services Corp. of Alabama, Montgomery, for appellee.
   JONES, Justice.

Plaintiff/Appellant Louise Felder brought this negligence suit seeking money damages for injuries she received as a result of an automobile-pedestrian collision involving an automobile owned by Defendant Isaac Hill, and operated by Defendant Leon Chillous. From a final judgment for. Hill, Plaintiff appeals. We affirm.

On May 5, 1980, Louise Felder was standing next to a loading ramp which ran across the front of a store in which she had been shopping. An automobile, owned by Hill and driven by Chillous, struck Plaintiff from behind, mashed her against the ramp and broke both her legs.

On the day of trial, neither Hill, nor any witnesses on his behalf, appeared in court. Felder’s motion for a default judgment was granted. Following testimony as to Felder’s damages, judgment was entered against Hill for $30,000.

On December 30, 1982, a year and a half after default judgment was entered, Hill, by his next friend and daughter, Lula B. Johnson, sought to set aside the default judgment on the basis that Hill was mentally incompetent at the time the default judgment was entered against him. After a hearing, the trial court, finding that Hill was mentally incompetent, and that such incompetency had prevented him from having a fair adversarial hearing, set aside the default judgment.

Upon the subsequent trial on the merits, at the close of all the evidence, the court granted Hill’s motion for directed verdict. Felder claims on appeal that the trial judge abused his discretion in setting aside the default judgment, and that the granting of Hill’s motion for directed verdict was reversible error.

In his Rule 60(b)(6), A.R.Civ.P., motion to set aside the default judgment, Hill stated, among others, the following grounds:

. “1. That at all times during the proceedings held in this cause, including the trial at which default judgment was entered, defendant Isaac Hill was blind, disabled and mentally incompetent.
“2. That defendant’s attorney, Tyrone Means, was unaware of the defendant’s mental incompetency.
“3. That the record reveals that the court and all other parties to this case were unaware of the defendant’s mental incompetency at the time the judgment was entered.
“4. That as a direct result of his mental incompetency, defendant was denied a fair adversary hearing before a court aware of his incapacities.
“5. That the defendant has a meritorious defense to the claims of the plaintiff that he could have presented had his mental incompetency been known to his attorney and the court.”

At the time the default judgment was entered, Hill was 89 years old and blind, and had been diagnosed by the Veterans’ Administration as suffering from “Chronic Brain Syndrome — cerebral arteriosclerosis” since 1962. As the VA Rating Decision of November 9, 1962, attests:

“His [Hill’s] major disability ... arises out of his cerebral arteriosclerosis. The examiner stated that he was barely ambulatory with assistance by two people, that he appeared confused and did not answer to his name when called and did not seem to hear or understand what was said. .The examiner was of the opinion that he could not care for himself, since he required assistance in bathing, showering, and caring for his personal needs. History indicated that this veteran did not handle money and the examiner considered him incompetent. The evidence shows that this veteran has a mental disability of such severity that he requires regular aid and assistance to protect him from the hazards or dangers incident to his daily environment.
“Incompetent from 8/22/62.”

Similarly, the neuropsychiatric report dated October 11, 1961, reads:

“He [Hill] has little to say and apparently does not hear or understand much of what is said to him. He is barely ambulatory. Does not communicate, and no information is obtainable .... [He] does not act right and does not talk sense. Cannot handle money.
“DIAGNOSIS_ Incompetent. In need of constant supervision (aid and attendance).”

Consequently, on November 9, 1962, Hill was awarded a 100% mental disability by the VA due to “Chronic Brain Syndrome associated with cerebral arteriosclerosis,” which is reviewed annually. Hill’s wife was appointed as his legal custodian by the VA on November 13, 1962.

Cadick Milling Co. v. Merritt, 246 Ala. 175, 19 So.2d 720 (1944), sustained the trial court’s decree setting aside a default judgment on the basis of evidence showing that the defendant had been under the care of the Veterans’ Administration as a non compos mentis at the time of the proceeding involved. The fact of the defendant’s insanity was not disclosed by the record, nor was there anything to show that the insanity was either known to the court or called to its attention. Nevertheless, the Court reasoned, if the incapacity of the defendant prevented a fair adversary hearing, and the defendant had a meritorious defense, the default judgment should be set aside.

In addition to the evidence from the VA concerning Hill’s incompetency, Hill presented affidavits from his former lawyer and his daughter supporting his motion to set aside the default judgment. The standard of review in the case of an order setting aside a default judgment is that the trial judge has wide discretion, and his judgment will not be disturbed unless he has clearly abused that discretion. Roberts v. Wettlin, 431 So.2d 524 (Ala.1983). We do not find that the trial judge abused his discretion in setting aside the default judgment. To be sure, any holding to the contrary, under the circumstances of this case, would have been subject to revision as an abuse of his discretion.

Appellant’s second claim of error is that the trial court committed reversible error when it granted Defendant’s motion for directed verdict. While Appellant is correct that a legal presumption arose that Chillous was operating the automobile as Hill’s agent (Smith v. Johnson, 283 Ala. 151, 214 So.2d 846 (1968)), Hill rebutted that presumption by introducing evidence that he had loaned the car to someone else. As stated by this Court in Craft v. Koonce, 237 Ala. 552, 187 So. 730 (1930):

“When plaintiff proves such ownership of the car by defendant, and thereby brings into being the presumption [that the driver was his agent], he need not offer further proof that the operator of the car was the agent of defendant, and in the line and scope of his authority, until and unless defendant has offered proof that he was not acting for defendant in the line and scope of his authority. And if defendant makes that proof and it is not contradicted, either expressly or inferentially, defendant is entitled to [a directed verdict]. But if there is any evidence which reflects upon the credibility of that evidence by defendant on that question, or from which an inference may be drawn to a different result, whether such evidence was produced by defendant or plaintiff, the question of whether the operator of the car was defendant’s agent acting in the line and scope of his authority should be submitted to the jury.” (Emphasis added.) 237 Ala. at 554-55, 187 So. at 731.

Felder argues that the credibility of Hill’s evidence was more than amply reflected upon to warrant submission of the case to the jury. We disagree. The trial judge found that the administrative presumption that Chillous was Hill’s agent was overcome by the showing that Hill did not know Chillous would drive the car.

In fact, the totality of the evidence is insufficient to raise any inference that Chil-lous, who drove the car into Felder, had permission from anyone to operate it. Although the testimony conflicts as to who gave permission to drive the car, the testimony is uncontroverted that one Earl Lewis, and not Leon Chillous, was given permission by either Hill or Hill’s landlady.

We find no error in the trial below; the judgment, therefore, is due to be, and it hereby is, affirmed.

AFFIRMED.

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

      . The summons and complaint issued for Defendant Leon Chillous were returned "not found.” The record indicates Plaintiff made no further attempt to locate Chillous; thus, he was not a party to the suit nor to this appeal.


author: SHORES, Justice.

text:
    Lee Ann BRYANT v. STATE FARM FIRE AND CASUALTY INSURANCE COMPANY.
    82-915.
    Supreme Court of Alabama.
    Feb. 24, 1984.

      Henry Sanders Mims, Huntsville, for appellant.
    Schuyler H. Richardson, III of Bell, Richardson, Herrington, Sparkman & Shepard, Huntsville, for appellee.
   SHORES, Justice.

Lee Ann Bryant (insured), the defendant in this declaratory judgment action, appeals from a final determination that State Farm Fire and Casualty Insurance Company (State Farm) is not obligated to her under a valid and effective policy of insurance. We affirm.

On January 1, 1982, a fire completely destroyed a house owned by Bryant. She filed a claim for the loss with State Farm, her homeowners insurer. State Farm denied the claim and filed this action, seeking a determination that it was not obligated to pay the loss because Bryant voluntarily and intentionally had set fire to the house and concealed from State Farm material facts relating to the loss. The insured filed a counterclaim for breach of contract and also a claim for damages for the insurer’s bad faith refusal to pay the claim. The case proceeded to trial, and the trial court directed a verdict in favor of State Farm on the bad faith claim. The declaratory judgment and breach of contract issues were submitted to the jury. The jury returned a verdict in favor of State Farm on its complaint and against the insured on her counterclaim. The insured appealed.'

First, the insured claims that the trial court abused its discretion in allowing testimony about the results of a polygraph test administered to her. Her second allegation of error is that State Farm failed to establish by a preponderance of the evidence that the fire was of an incendiary origin and was set by her.

The polygraph test had been administered to Bryant in the course of the investigation into the fire. Apparently, the examiner determined by the test results that she was not telling the truth about the circumstances of the fire. There was no stipulation by the parties to admit evidence of the results of the test. In fact, Bryant had filed a pretrial motion in limine to limit any testimony about the test and its results. The court did not rule on this motion, but did state that before anyone produced evidence concerning the test, the court must be advised. At that time it would hold arguments outside the presence of the jury on the motion.

During the insured’s cross-examination of Tom Copeland, State Farm’s fire investigator assigned to the claim, Copeland revealed that the insured had failed the test and that this fact was material in State Farm’s determination that she was linked directly to the fire and had concealed her involvement. The pertinent part of this cross-examination is as follows:

“Q. [Mr. Mims] You have been advised. What proof, direct proof, do you have that Mrs. Bryant knew of the fire?
“MR. P. RICHARDSON: We object to the use of the word, ‘direct proof,’ Your Honor.
“THE COURT: Overruled.
“A. [Tom Copeland] I’m not sure what you mean by direct proof.
“Q. What proof do you have, direct proof, indicating that Mrs. Bryant knew her premises was going to be burned on January 1, 1982?
“MR. P. RICHARDSON: We would renew the objection to the form of the question, as to the word, ‘direct proof.’ The meaning of it is unclear and uncertain.
“THE COURT: Mr. Mims, he has said he doesn’t understand what you mean by direct proof. Maybe you ought to explain it to him.
“Q. Well, what I mean is, sir, did you find any person or documentation that indicated that Mrs. Bryant knew of the burning of her residence on January 1, 1982?
“A. I have been advised by the Huntsville Fire Department that she failed a polygraph.
“MR. MIMS: Your Honor—
“THE COURT: You asked him.
“MR. MIMS: Your Honor, at this time I will have to respectfully ask for a mistrial — maybe we need an in camera hearing.
“THE COURT: Overrule your motion.”

This testimony was substantially similar to another line of questions and answers that occurred later in this cross-examination.

Bryant argues that m the courts of this state evidence of a polygraph test and its results are inadmissible unless the parties and the court follow the procedures set out by the Court of Criminal Appeals in Wynn v. State, 423 So.2d 294 (Ala.Cr.App.1982). This is correct, but that is not before us. The only ruling before us is the trial court’s refusal to declare a mistrial when the witness responded to the insured’s question.

State Farm, in its brief, correctly analyzed the situation. We quote its argument:

“There was no motion to exclude or strike the testimony of the witness, rather there was a motion for mistrial. The burden to reverse the trial court for refusal of a motion for mistrial is much higher than that for refusal of a motion to exclude or strike. In Thomas v. Ware, 44 Ala.App. 157, 204 So.2d 501 (1967), the Alabama Court of Appeals held that a motion for mistrial does not include a motion to exclude or strike testimony and that the motion for mistrial -should be granted only as a last resort, ‘as in cases of otherwise ineradicable prejudice.’ State Farm notes that the Ware decision involved an unresponsive, volunteered comment reflecting that the Defendant in a suit arising out of an automobile accident had insurance coverage. State Farm notes that here, the Court is presented with testimony which was responsive to the question and elicited by counsel for Defendant Bryant on cross-examination of the witness. The question, then, is whether Defendant Bryant may complain of the admission of the responsive answer of a witness to Defendant’s own ambiguous question.
“In Madison Highlands Development Co. v. Hall, 283 Ala. 333, 216 So.2d 724 (1968), this Court affirmed the refusal of a motion to exclude an answer clearly based on hearsay, noting that the answer was responsive to the question posed. The Alabama courts have uniformly held that, if an answer is responsive, it may not be excluded or stricken on motion. Holifield v. State, 347 So.2d 559 (Ala.Cr. App.1977). Robinson v. State, 383 So.2d 572 (Ala.Cr.App.1980). Further, where the question posed is ambiguous, the latitude for responsiveness of the answer is necessarily broader. Robinson v. State, supra.

In conclusion, we add that in the absence of a motion to strike or exclude the witness’s answer and a ruling by the trial court on the motion, there is nothing for this Court to review. Starr v. Starr, 293 Ala. 204, 301 So.2d 78 (1974). See, also, cases cited under Rule 46, Alabama Rules of Civil Procedure, Vol. 23, Ala.Code 1975.

Bryant directs us to the testimony of Leon Greene, the polygraph examiner, and claims that Greene’s testimony about statements made by Bryant during the examination is also inadmissible. Greene repeated statements made by Bryant which are inconsistent with Bryant’s trial testimony. He did not reveal to the jury that these inconsistent statements were made in the course of the examination or that Bryant was being monitored when she made them. There were no indications that the statements were connected in any way with the polygraph test. The trial court allowed Greene’s testimony to impeach Bryant by this evidence of her prior inconsistent statements. This was proper.

Bryant also challenges the sufficiency of the evidence to support the verdict. She argues that the evidence creates only an inference that she set the fire, or caused another to do it, and this inference alone cannot support the verdict.

We have read the record and there is sufficient evidence to support the jury’s verdict for State Farm on this question. Ron Schrimsher, assistant fire marshal for the City of Huntsville, and Tom Copeland, both experts in the area of fire investigation, described “burn patterns” which they found on the floor of the house. They testified that, in their opinion, this indicated that the fire had been accelerated by the use of some type of flammable liquid. According to them, someone poured puddles of gasoline on the floor of the house and on some of the furniture, and then set the thermostat on a gas heater at a low setting. Eventually, the house filled with fumes, which were ignited when the heater finally turned on. Pieces of carpeting and floorboards were analyzed and were found to contain gasoline. An empty gasoline can was found outside the house in the yard. The possibility that the fire was electrical in origin was ruled out by Russell Jackson, an engineer, who inspected the remains of the house.

Tom Copeland admitted he had no clear and direct evidence in his file at State Farm that Bryant had set the fire, but he did have circumstantial evidence, which served as the basis for the insurer’s refusal to pay the loss. He testified that, in addition to the above information about the origin of the fire, he had information that Bryant was not making enough money to cover all her debts, which included two. mortgages on the house. She was not behind on any payments, but she was receiving money from her mother. He stated that he also considered the fact that she had had someone take her poodle, which had been her pet for seventeen years, from the house. He has found, after ten years of investigating suspicious fires, that before people set fire to their homes, they often remove their most prized possessions and pets from the premises. He also thought it was odd that Bryant did not return home the night of the fire to meet and accompany her live-in boyfriend Greg Butler to a New Year’s Eve party held at the home of his relative. Bryant testified that her car was not operating properly, so she stopped at a friend’s house to spend the night. Nonetheless, Copeland questioned why she did not make an effort to spend New Year’s Eve “with someone [she] cares about and loves.” The final consideration was her failure on the polygraph examination.

From this evidence, there is at least a reasonable inference that Bryant, personally or through someone else, set fire to her house. This is enough to allow the issue to be submitted to the jury and to support a verdict in favor of State Farm. Great Southwest Fire Ins. Co. v. Stone, 402 So.2d 899 (Ala.1981).

The judgment of the trial court is affirmed.

AFFIRMED.

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


author: FAULKNER, Justice. TORBERT, Chief Justice

text:
    Earl J. DOUGHERTY v. Doris Ann HOVATER.
    82-938.
    Supreme Court of Alabama.
    Feb. 24, 1984.
    Roger H. Bedford, Sr. of Bedford, Bed-ford & Rogers, Russellville, for appellant.
    H. Neil Taylor, Russellville, for appellee.
   FAULKNER, Justice.

This case is before us for a second time. Our previous opinion is reported as Dougherty v. Hovater, 425 So.2d 1082 (Ala.1983). In that opinion we remanded the action to the trial court to determine whether certain stock owned by Earl Dougherty and his late wife was survivorship property. The circuit court ruled that it was not. It ordered that the stock be divided between Dougherty and Doris Hovater, his late wife’s daughter by a previous marriage. Dougherty appeals.

The Doughertys acquired the stock from his late aunt. She bequeathed the stock “to my nephew, Earl J. Dougherty and his wife, Annie Lee Dougherty, or to the survivor of them.” Consumers Power Company, a Michigan corporation, issued the certificates to “Earl J. Dougherty & Annie Lee Dougherty, Ten.Ent.” In their briefs, both parties treated the term “Ten.Ent.” as an abbreviation for tenants by the entirety. Mrs. Dougherty’s will left all her property to her daughter, Doris Hovater.

The parties directed their arguments to the issue of whether a tenancy by the entirety can be created in Alabama. The defendant argued that Alabama does not recognize the estate. Donegan v. Donegan, 103 Ala. 488, 15 So. 823 (1893); Walt- hall v. Goree, 36 Ala. 728 (1860). The plaintiff pointed out that those cases involved conveyances which did not specify how the parties were to hold the property. At common law, any conveyance to a husband and wife created a tenancy by the entirety. The plaintiff argued that Done-gan and Walthall stand for the proposition that a conveyance to a husband and wife, without more, does not create an estate by the entirety, but that those holdings do not prevent the creation of such an estate by an express grant.

We do not consider the dispositive issue to be the existence, vel non, of tenancies by the entirety in Alabama. Regardless of the form of tenancy by which parties jointly hold property, under Alabama law the question of survivorship is governed by statute. Section 35-4-7 of the Alabama Code provides:

“When one joint tenant dies before the severance, his interest does not survive to the other joint tenants, but descends and vests as if his interest had been severed and ascertained; provided, that in the event it is stated in the instrument creating such tenancy that such tenancy is with right of survivorship or other words used therein showing such intention, then, upon the death of one joint tenant, his interest shall pass to the surviving joint tenant or tenants according to the intent of such instrument. This shall include those instruments of conveyance in which the grantor conveys to himself and one or more other persons and in which instruments it clearly appears that the intent is to create such a survivorship between joint tenants as is herein contemplated.”

See Nunn v. Keith, 289 Ala. 518, 268 So.2d 792 (1972).

Whether the Doughertys held the stock as tenants by the entirety or in some other form of joint tenancy, Mrs. Dougherty's interest did not survive to the plaintiff unless the instrument creating the estate contained language expressing an intent to create a survivorship estate. Section 35-4-7, Code of Alabama (1975). The will through which the Doughertys acquired the stock specifically bequeathed it to “Earl J. Dougherty and his wife, Annie Lee Dougherty, or to the survivor of them ” (emphasis added). The stock certificates contained a designation purporting to create a tenancy by the entirety. Etsates by the entirety stemmed from the common law concept that a husband and wife had a single existence. The essential characteristic of the estate was that each spouse owned the whole, not a divisible part. On the death of one spouse the survivor continued to own the whole by virtue of the title originally invested. Since survivorship is a primary feature of a tenancy by the entirety, we opine that the designation on the stock certificates purporting to create such a tenancy also constituted an expression of an intent to create a survivorship estate. See Bove v. Bove, 394 Pa. 627, 149 A.2d 67 (1959); Kepner, The Effect of an Attempted Creation of An Estate By The Entirety In Unmarried Grantees, 6 Rutgers L.Rev. 550, 557 (1952).

There is no dispute as to the material facts of the case. Both the bequest and the stock certificates contain language which, in our opinion, indicates an intent to create a survivorship estate. The decision of the trial court ordering the stock to be divided between the surviving tenant and the deceased tenant’s legatee is reversed and the case remanded.

REVERSED AND REMANDED.

MADDOX, JONES, ALMON, SHORES, EMBRY, BEATTY and ADAMS, JJ., concur.

TORBERT, C.J., concurs specially.

TORBERT, Chief Justice

(concurring specially).

I agree that the language in the bequest in the will of stock “to my nephew, Earl J. Dougherty and his wife, Annie Lee Dough-erty, or to the survivor of them,” was sufficient to create a joint tenancy with right of survivorship under Code 1975, § 35-4-7. I do not think the abbreviation “Ten.Ent.” on the stock certificates is sufficient to create such an estate under § 35-4-7. The language in the will should control the estate created.


author: BEATTY, Justice.

text:
    Thelma CLELAND v. Farrell C. CLAYTON.
    82-1033.
    Supreme Court of Alabama.
    Feb. 24, 1984.
    John T. Robertson, IV of Henslee & Bradley, Gadsden, for appellant.
    Michael L. Roberts of Floyd, Keener & Cusimano, Gadsden, for appellee.
   BEATTY, Justice.

Appeal by the defendant from a judgment declaring certain real property a public way and enjoining defendant from obstructing it. We affirm.

The action began as an attempt by plaintiff to establish the dividing line between the real property of the parties. The defendant denied plaintiffs allegations of ownership, and counterclaimed for ownership by virtue of a deed to the disputed property, as well as adverse possession. Plaintiff later amended his complaint, by asserting that the disputed strip of land was a public way, and sought injunctive relief. Defendant moved for a survey. The trial court granted this motion and appointed a surveying firm to make a survey.

The case was presented ore tenus, following which the trial court entered a judgment finding that the subject real property “is now and has been for more than 20 years a well defined public road by reason of adverse use by the public continuously for more than twenty (20) years, running through reclaimed land.” The trial court then ordered that the survey be made of the roadbed and its boundaries staked; that a map and description of the roadbed be filed for record; and that the costs of the survey be paid, one-half by the plaintiff and one-half by the defendant.

Defendant’s motion for a new trial was denied and this appeal ensued, with defendant raising three controlling issues, viz.:

(1) Whether or not plaintiff alleged and proved special injury such as would entitle him to maintain a suit for injunctive relief against the obstruction of a public road.

(2) Whether or not there was sufficient evidence to support the judgment.

(3) Whether or not the trial court abused its discretion in assessing against the defendant half the cost of the survey.

I.

The burden is on the plaintiff to allege and prove a special injury when he seeks injunctive relief against an encroachment or obstruction of a public road. Ayers v. Stidham, 260 Ala. 390, 71 So.2d 95 (1954). Insofar as plaintiffs allegations are concerned, he alleged that the way in question wás a public road and that he “has obtained rights and interest in and to the above described public road ... or ... a use of said public road by dedication of said road to the public.” Under notice pleading, this general allegation of special injury was sufficient. Rule 8, A.R.Civ.P.

On the question of proof of special injury, it was shown that plaintiff is the owner of land abutting the obstructed road. In Williams v. Norton, 399 So.2d 828 (Ala.1981), this Court recognized that “an individual, as an owner of land which abuts a public road, suffers a special injury if an obstruction of that road denies him convenient access to a nearby waterway or forces him to take a more circuitous route to the outside world.” 399 So.2d at 829. Plaintiff, himself, testified that on numerous occasions when another route was inaccessible he had used the roadway in question to park his car and walk down the ridge (on which part of this roadway was located) to his home. Under these circumstances, there was some evidence before the trial court of special injury under the principle stated above.

II.

Was there sufficient evidence to support the judgment?

Farrell Clayton, plaintiff, was shown to own real property east of that owned by Thelma Cleland, defendant. It was .shown, in fact, that the property to the north and east of the Cleland property had been Clayton property for some 60 years. The southern boundary of defendant’s land is formed by a roadway known as Ridge Avenue, which runs west to east, being intersected by Fowler Street at the southeast corner of defendant’s land. Fowler Street runs north and south. The parties’ dispute concerns the existence of a roadway north of Ridge Avenue where it is intersected by Fowler Street.

The plaintiff, age 68, testified to his long knowledge of the property and the disputed roadway. Concerning the roadway leading in a northerly direction from Ridge Avenue, he stated that “there was always a road there,” lining up exactly with Fowler Street, and going “straight over the top of the hill.” The way “always” divided the property. Plaintiff testified that he had used the way “since I was able to walk.” His home was located beyond the hill, which the way crossed, and in the next hollow. According to plaintiff, the Cleland property had been owned previously by a family named Ware, who lived on it for approximately 40 years. During that time, the roadway was never blocked. It was a part of Alabama City at one time and was worked on by that city, and he remembered that the Works Progress Administration (W.P.A.) had placed a sewer line up the disputed way about 100 feet beyond and north of the intersection with Ridge Avenue.

Mr. Clayton also testified to his personal knowledge for “possibly forty” years of the general public’s use of this way north of Ridge Avenue, “driving cars up there, leaving them while they walked and went over the mountainside.” He stated that there was another road to the hollow beyond, but “the road was so bad in this hollow and on beyond the big mountain back there, you could hardly drive a car over it. In fact [there was] an impasse for years at one time.” Mr. Clayton explained, however, that at the present time cars were frequently being driven on this road to his home. But as to the roadway in question, it stopped barely over the hill, never going down the north side of the hill. He testified that as automobiles became more plentiful people usually traveled the other road by the side of the mountain and parked at his house, rather than using the way in question.

Plaintiff also testified that there were fences on both sides of this road, the fence on his side of the road enclosing cultivated fields.

Several other witnesses testified for plaintiff and established the disputed roadway as having been used as a public street for many years and worked on by the City of Gadsden. One of these was the son of James R. Ware, who had previously owned the Cleland property. His testimony was substantially the same as that of plaintiff. Another was J.C. Bellamy, who lived on Ridge Avenue. He testified that the general public had used the disputed roadway since 1926.

The defendant’s evidence sharply disputed plaintiff’s evidence. Some of this evidence established that no road existed extending Fowler Street north of Ridge Avenue; that there was only a “turnaround” or driveway. Other evidence disputed its use by the general public and its having been worked on by the City of Gadsden. On the record, a case was made on disputed evidence for a decision by the trial judge. After viewing the property himself, the trial judge decided in favor of the plaintiff that the disputed roadway had become a well-defined public roadway through adverse, continuous public use for more than 20 years. When the trial court has had evidence presented ore tenus, a presumption exists as to the correctness of its findings of fact. Conley v. City of Montgomery, 414 So.2d 58 (Ala.1982). The defendant’s arguments that the evidence shows only “permissive” use, and, in the alternative, that the evidence shows abandonment by the public, likewise were questions for the trial court to resolve. See Reed v. Waters, 852 So.2d 1344 (Ala. 1977); Davenport v. Cash, 261 Ala. 380, 74 So.2d 470 (Ala.1950).

III.

With regard to the third issue, we cannot conclude that the trial court abused its discretion by allocating to defendant one-half of the costs of the survey which was performed. Code of 1975, § 35-3-22, clothes the trial court with authority “of fixing the manner in which the cost of such survey is to be paid.” See also Rule 54(d), A.R.Civ.P.

Let the judgment be affirmed.

AFFIRMED.

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


text:
    J.D. SIMPSON v. J.D. HARBIN and Mickey Smith.
    82-1039.
    Supreme Court of Alabama.
    Feb. 24, 1984.

      Robert F. Prince, Tuscaloosa, for appellant.
    Robert V. Wooldridge, III, Tuscaloosa, for appellee.
   BEATTY, Justice.

This case concerns a private prescriptive easement. The plaintiff seeks relief from the trial court’s denial of his petition for rule to show cause and the court’s refusal to find the defendants in contempt. We affirm.

On or about October 1, 1980, the defendants, J.D. Harbin and Mickey W. Smith, erected a fence-like structure and placed mounds of dirt over a road on their property. The road led to the adjoining property of plaintiff, J.D. Simpson, who filed suit seeking the removal of this obstruction. The trial court so ordered on March 22, 1982, following a finding that Simpson possessed a private easement by prescription over the road. These obstructions were removed; however, defendants subsequently constructed two gates across the easement and provided Simpson with keys, in the event that locks were needed. Simpson objected to these gates and petitioned the trial court to hold defendants in contempt for their refusal to follow the March 22 order requiring the “removal of all obstructions.”

On Simpson’s petition for rule to show cause, evidence was presented to the trial court that Simpson’s use of his adjoining property consisted only of walking in the woods, and his only inconvenience by the gates was that he must get out of his car and open and close the gates. Other evidence established that persons operating motorcycles and three-wheel vehicles and riding horses were using Simpson’s private easement to the disruption of defendants’ households and danger to their children. The trial court refused to hold defendants in contempt of the prior order and found that the gates were not an unreasonable interference or obstruction with Simpson’s use and enjoyment of his easement.

The primary issue presented for review is whether the trial court was palpably wrong in refusing to hold the defendants in contempt for erecting the gates.

The scope of review in contempt cases is limited to questions of law and does not extend to the weight and preponderance of the evidence, Citicorp v. Sanderson, 421 So.2d 1293 (Ala.Civ.App.1982); Smith v. State, 380 So.2d 897 (Ala.Civ.App. 1980). With regard to factual questions, these cases stand for the proposition that if there is any legal evidence that supports the judgment of the trial court, we must affirm.

In the present case, there was substantial evidence to support the trial court’s refusal to hold defendants in contempt. Further, the facts of this case overwhelmingly support the discretion of the trial court in that the order from which the plaintiff sought a contempt citation was the court’s own order. Clearly, it was within the power of the trial court to modify the March 22, 1982, order if it had deemed it necessary.

The plaintiff also questions the use of the unreasonable interference test where contempt is the remedy sought for obstructing an easement. While we recognize that Self v. Hane, 262 Ala. 446, 79 So.2d 549 (1955), was an appeal from the grant of a temporary injunction, the following quotation from that decision is clearly applicable in the present case:

“[T]he mere fact that complainant has a right of way by claim of necessity does not of itself mean that respondent cannot establish gates across it where it enters and leaves his property. It is a question of reasonableness under all the circumstances. [Citations omitted.]” 262 Ala. at 448, 79 So.2d at 551.

This case is due to be, and it is hereby, affirmed.

AFFIRMED.

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


author: ALMON, Justice.

text:
    Bobby J. HOLT v. Dr. Raymond D. GODSIL, Jr.
    82-461.
    Supreme Court of Alabama.
    Jan. 20, 1984.
    Rehearing Denied March 2, 1984.

      Margaret Y. Brown, Auburn, for appellant.
    W. Banks Herndon, of Walker, Hill, Adams, Umbach, Herndon & Dean, Opelika, and Charles A. Stakely, Jr. of Rushton, Stakely, Johnston & Garrett, Montgomery, for appellee.
   ALMON, Justice.

This is a medical malpractice suit brought against an orthopedic surgeon. Bobby J. Holt appeals from a summary judgment in favor of Dr. Godsil entered because of Holt’s failure to offer expert evidence of Dr. Godsil's alleged negligence.

On June 1, 1980, Holt sustained a fracture of the fifth metacarpal of his right hand and later that day received medical assistance from Dr. Godsil, who diagnosed the fracture, treated it by closed reduction, and applied a cast to the broken hand in the Lee County Hospital emergency room. During a routine office visit on June 10, 1980, Dr. Godsil examined Holt’s hand, and Eddie Kelsey, a cast technician in the office, applied a new cast. Holt returned for a second office visit on June 20, 1980, and although Dr. Godsil was called to the hospital on an emergency and was unable to see Holt, Kelsey removed Holt’s cast and applied a new one. According to Holt, Kelsey exerted undue pressure on the fracture while applying the cast. Holt’s hand began swelling in the cast, and after experiencing much pain, Holt returned to the emergency room the following day, where Dr. Godsil’s partner, Dr. Richard T. Herrick, advised Holt that his hand needed to be recast. Holt scheduled another appointment with Dr. Godsil for June 24, 1980, and on this date, Dr. Godsil was again unable to see Holt due to a hospital medical emergency. Holt refused to allow Kelsey to recast his hand and sought other medical assistance. Later, pins were inserted in the fracture to reset the bone.

On June 1, 1982, Holt and his wife Janette filed a medical malpractice action against Dr. Godsil, which alleged that Dr. Godsil, personally or through his agents or employees, negligently treated Holt, proximately resulting in permanent injury to Holt and loss of companionship to Janette. Dr. Godsil answered their complaint, denying any negligence and averring that he exercised reasonable care, diligence, and skill in treating Holt. Dr. Godsil then filed a motion for summary judgment and attached his affidavit and depositions of the Holts in support thereof. His affidavit stated that he “at all times exercised the same degree of care, skill, and diligence as orthopedic surgeons generally exercise in a similar case.” Holt responded to the motion by filing a counter-affidavit. Following a hearing, the trial court granted Dr. Godsil’s motion for summary judgment, holding that the Holts’ failure to present expert medical testimony in support of their claim precluded a finding of a genuine issue of material fact.

The standard of care which a physician owes to his patients is the exercise of “such reasonable care, diligence and skill as physicians ... in the same general neighborhood, and in the same general line of practice, ordinarily have and exercise in a like case.” Code 1975, § 6-5-484(a).

To establish a physicians negligence, the plaintiff must ordinarily proffer expert medical testimony as to what is or is not the proper practice, treatment, or procedure. See Parrish v. Spink, 284 Ala. 263, 224 So.2d 621 (1969).

The following situations have been recognized as exceptions to the general rule: 1) where a foreign instrumentality is found in the plaintiff’s body following surgery, Sellers v. Noah, 209 Ala. 103, 95 So. 167 (1923); 2) where the injury complained of is in no way connected to the condition for which the plaintiff sought treatment, Parrish v. Spink, 284 Ala. 263, 224 So.2d 621 (1969); 3) where the plaintiff employs a recognized standard or authoritative medical text or treatise to prove what is or is not proper practice, Zills v. Brown, 382 So.2d 528 (Ala.1980); and 4) where the plaintiff is himself or herself a medical expert qualified to evaluate the doctor’s allegedly negligent conduct, Lamont v. Brookwood Health Services, Inc., 446 So.2d 1018 (Ala.1983).

Because the allegations in Holt’s counter-affidavit do not fall within any of the exceptions listed above, his evidence does not necessarily show that Dr. Godsil or his agent fell below the requisite standard of care.

In a strikingly similar case, this Court held that the existence of an unfortunate result does not raise an inference of culpability: “The mere fact that the ... orderly, when he took over the wrapping of the cast, twisted and hurt plaintiff’s leg ... does not permit a reasonable inference of culpability on the part of Dr. Conwell.” Watterson v. Conwell, 258 Ala. 180, 182, 61 So.2d 690, 692 (1952).

The allegations in Holt’s counter-affidavit were, therefore, insufficient to establish the existence of a genuine issue of material fact, and the summary judgment granted in favor of Dr. Raymond D. Godsil, Jr., is affirmed.

AFFIRMED.

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


author: BOWEN, Presiding Judge.

text:
    Donnie ROWELL v. STATE.
    1 Div. 529.
    Court of Criminal Appeals of Alabama.
    July 5, 1983.
    Rehearing Denied Aug. 2, 1983.

      Alvin T. Prestwood and Claude P. Ros-ser, Jr., of Prestwood & Rosser, Montgomery, for appellant.
    Charles A. Graddick, Atty. Gen., and Richard L. Owens, Asst. Atty. Gen., for State.
   BOWEN, Presiding Judge.

The defendant was indicted and convicted for burglary in the third degree in violation of Alabama Code Section 13A-7-7 (1975). Sentence was six years’ imprisonment. Two issues are presented on appeal.

I

The defendant’s prior conviction for criminal mischief in the second degree did not bar his prosecution for burglary in the second degree under the principles of former jeopardy. In a prosecution for criminal mischief in the second degree in violation of Alabama Code Section 13A-7-22(a) (1975), the State must establish the following elements: (1) The property was actually damaged, (2) the defendant intentionally damaged the property, (3) the defendant had no right to damage the property or any reasonable ground to believe that he had such a right, and (4) the damage inflicted to the property was in excess of $250 but did not exceed $1000.

Here, the indictment charged that the defendant “did, knowingly enter or remain unlawfully in a building of N.W. Fleming with intent to commit a crime therein, to wit: Harassment, in violation of Section 13A-7-7.” To establish burglary in the third degree, the prosecution must establish: (1) The defendant entered or remained unlawfully as that term is defined in Section 13A-7-l(4), which for purposes of this case means that the defendant was “in or upon premises when he is not licensed, invited or privileged to do so”; (2) the defendant knowingly entered or remained unlawfully (he was aware of the fact that he had no license or privilege to enter or remain); (3) the invaded premises constitute a building; and (4) the defendant had the intent to commit a crime.

“A person commits the crime of harassment if, with intent to harass, annoy or alarm another person, he: a. strikes, shoves, kicks or otherwise touches a person or subjects him to physical contact; or b. directs abusive or obscene language or makes an obscene gesture towards another person.” Alabama Code Section 13A-11-8(a).

The defendant admits that criminal mischief is not a lesser included offense of burglary and that proof of one offense does not necessarily involve proof of the other. The defendant contends, however, that “the State’s proof on the issue of the Defendant’s intent, vel non, to commit the crime of harassment unmistakably and unequivocally included proof of the offense, criminal mischief, for which the defendant had already been punished.” “Stated differently, the State could not present evidence from which a jury could reasonably infer the Defendant’s intent to commit the crime of harassment (the offense charged in the indictment) without showing that the defendant kicked in the back door of the Fleming’s home.”

The facts show that on February 9, 1982, Donna Fleming was in her parents’ home with her friend, Mona Morgan. Ms. Fleming and the defendant were divorced in September of 1981. The defendant came to the residence and told Ms. Fleming “to let him in, that he wanted to talk.” When Ms. Fleming told him that she did not have anything to talk to him about, the defendant “got mad and he kicked the door several times.” The defendant told Ms. Fleming that she had “better let him in or he’d beat her ass.”

The defendant kicked the locked door open and entered the residence. This destruction of the door is the basis of the charge of criminal mischief. The defendant told Ms. Morgan that “he would beat her ass, too, if she got into it.” The defendant “grabbed” Ms. Fleming by the arm and told her that “he was going to talk to (her), that he had something to say to (her).” The defendant set Ms. Fleming on the sofa and was trying to talk to her when the police arrived.

Ms. Morgan testified that the defendant told them “that he was going to put a stop to some of this mess that had been going on.” The defendant “threatened” her and said he was going “to get” the two women. Once inside, the defendant “grabbed” Ms. Fleming by the arm and “started shaking her, and by that time the police were there.” Ms. Morgan stated that the defendant told her “he was going to get (her); that (she) was going to be a dead bitch.”

The double jeopardy clause protects an accused from being twice subject to jeopardy for the “same offense”. U.S. Const. amend. V; Ala. Const. art., Section 9. In Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), the Supreme Court held that a single act or transaction may constitute more than one offense, and may be prosecuted and punished under multiple statutory provisions if each provision requires a proof of a fact that the other does not. “As long as the statutory elements of proof differ, the Blockburger test is satisfied even if the two offenses are proved by the same evidence.” Twelfth Annual Review of Criminal Procedure: United States Supreme Court And Courts Of Appeals 1981-1982, 71 Geo.LJ. 339, 567, n. 1572 (1982), citing United States v. Ward, 676 F.2d 94 (4th Cir.1982) (malicious damage to property and illegal dumping of toxic wastes different offenses because former requires damage to property and latter requires violation of federal regulation).

In denying the defendant’s plea of double jeopardy the trial judge relied upon Brown v. State, 367 So.2d 557, 559 (Ala.Cr.App.1978), cert. denied, Ex parte Brown, 367 So.2d 559 (Ala.1979). In Brown, this Court held that since the crimes of common law robbery and assault with intent to murder are separate and distinct offenses, there was no double jeopardy violation in separate prosecutions for the robbery of a gasoline station attendant and the assault with intent to murder the attendant although both prosecutions were based on the same incident.

The correctness of that holding was recognized in Brown v. Alabama, 619 F.2d 376 (5th Cir.1980), wherein the same issue was raised:

“The test to determine whether successive prosecutions impermissibly involve the same offense under the double jeopardy clause was laid out by the Supreme Court in Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932).
“(W)here the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of an additional fact which the other does not.
“This test is satisfied if each offense requires the proof of a fact that the other does not, even though there may be a substantial overlap in the proof offered to establish the crimes. Brown v. Ohio, 432 U.S. 161, 166, 97 S.Ct. 2221, 2225, 53 L.Ed.2d 187 (1977), quoting Iannelli v. United States, 420 U.S. 770, 785, n. 17, 95 S.Ct. 1284, 1293, n. 17, 43 L.Ed.2d 616 (1975).”
Brown, 619 F.2d at 378.

A comparison of the definitions of the crimes of criminal mischief in the second degree and burglary in the third degree discloses that there are essential elements of one offense which are not elements of the other. These crimes are therefore two separate and distinct offenses. “A plea of former jeopardy is unavailing unless the offense presently charged is precisely the same in law and fact as the former one relied on under the plea.” Racine v. State, 291 Ala. 684, 687, 286 So.2d 896 (1973). Illinois v. Vitale, 447 U.S. 410, 100 S.Ct. 2260, 65 L.Ed.2d 228 (1980), does not apply since neither is criminal mischief a lesser included offense of burglary as a matter of law nor was it necessary for the State to sustain its burglary case to prove the conduct constituting criminal mischief.

II

The defendant argues that the State’s evidence failed to prove that the burglary was committed with the specific intent to commit the offense of harassment. He contends that anything which he may have said or done prior to entering the house was not “actionable”, for at that time, he had not entered the building.

The defendant’s actions and statements prior to the commission of the burglary were admissible and ■ properly considered on the issue of the intent with which the burglary was committed. Gilmore v. State, 99 Ala. 154, 13 So. 536 (1892); Pope v. State, 365 So.2d 369 (Ala.Cr.App.1978). Under the present indictment and the statute, it is the unlawful entry or the remaining unlawfully which is the gravamen of the offense. It is not required, to sustain a conviction for burglary, that the intended act was consummated. Hamilton v. State, 270 Ala. 184, 116 So.2d 906 (1960); Holland v. State, 247 Ala. 53, 22 So.2d 519 (1945); Howard v. State, 355 So.2d 1143 (Ala.Cr.App.1978). Consequently, it was not necessary for the State to prove a completed crime of harassment.

The judgment of the circuit court is affirmed.

AFFIRMED.

All Judges concur.


author: FAULKNER, Justice. JONES, Justice ADAMS, Justice

text:
    Ex parte: Donnie ROWELL. (Re: Donnie Rowell v. State of Alabama).
    82-1084.
    Supreme Court of Alabama.
    March 9, 1984.
    Dissenting Opinions March 21, 1984.
    Claude P. Rosser, Jr. of Prestwood & Rosser, Montgomery, for petitioner.

      Charles A. Graddick, Atty. Gen. and Richard L. Owens, Asst. Atty. Gen., for respondent.
   FAULKNER, Justice.

Writ quashed as improvidently granted.

TORBERT, C.J., and MADDOX, AL-MON, SHORES and BEATTY, JJ., concur.

JONES and ADAMS, JJ., dissent.

EMBRY, J., not sitting.

JONES, Justice

(dissenting).

I respectfully dissent. This Court’s summary order quashing the writ to review the Court of Criminal Appeals’ affirmance of Petitioner’s conviction, 447 So.2d 193, in my opinion, overlooks Code 1975, § 15-3-8:

“Any act or omission declared criminal and punishable in different ways by different provisions of law shall be punished only under one of such provisions and a conviction or acquittal under any one shall bar a prosecution for the same act or omission under any other provision.”

This statute is a legislative refinement of the constitutional protection against double jeopardy. The “same offense” criterion of the United States (Amendment V) and Alabama (Sec. 9) Constitutions has been further defined (i.e., the protection has been expanded) for state law application by § 15-3-8. The federal cases interpreting Amendment V, without the benefit of our State statute, have necessarily dealt with the “elements” of the respective offenses. We need not reach those considerations here.

The instant facts central to the disposi-tive issue are quite simple. The Defendant “broke down” the door of his erstwhile father-in-law’s house in order to gain entrance to “talk to” his ex-wife. His ex-wife’s father “swore out warrants” for two separate offenses: criminal mischief (destruction of property) and burglary in the third degree (knowingly entering a building with .the intent to commit a crime — harassment). He pleaded guilty to criminal mischief, was found guilty, and sentenced to 15 days’ confinement. He was then rearrested, indicted, found guilty of burglary in the third degree, and sentenced to six years’ imprisonment.

If we focus on the elements of the respective offenses involved to test the double jeopardy defense, the rationale of the Court of Criminal Appeals’ opinion is defensible. The gravamen of the misdemeanor to which he pleaded guilty and was sentenced to 15 days was the damage to the door. It had nothing to do with entering the house, at least in the abstract. Indeed, as Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), points out, under the United States Constitution, a single act may constitute two or more triable criminal offenses, if the requisite elements of proof for one crime differ from the requisite elements of proof for the other. So, this constitutional test is satisfied even if some elements of the two crimes, during different trials, are proved by the same evidence.

But § 15-3-8 focuses, not on the elements of the offenses, but on “any act [of the defendant] declared criminal and punishable in different ways by different provisions of law .... ” Furthermore, it is not double conviction, but double punishment, that is proscribed. Yelton v. State, 56 Ala.App. 272, 321 So.2d 234, cert. denied, 294 Ala. 745, 321 So.2d 237 (1975).

The question, then, is: Did the Defendant’s single act of breaking down the door form the basis for both prosecutions and punishments? To answer this question in the negative is to deal in fiction to the point of silliness. One would have to say that the two acts consist: first, of jamming his body against the door with such force that he broke it down; and, second, of falling through the doorway into the house. This is not to suggest that anyone, even the State, has attempted to divide this single transaction into two acts, thus destroying the “any” act concept of the statutory proscription against double punishment for a single act.

The interpretation of § 15-3-8 is not left to our imagination. A number of cases, annotated in the Code, give a broad range of operation for double conviction, as well as double punishment, when a single incident involves two or more acts of the defendant. For example, this Defendant could have been tried, convicted, and sentenced for criminal mischief and harassment, because a different act would have been involved in each of these offenses. If the evidence so warranted, he could have been tried, convicted, and sentenced for burglary, kidnapping, and rape. Three separate acts would have been necessary for the commission of these three crimes.

Can it be said that, under the facts of this case, § 15-3-8 contemplates that somewhere during the Defendant’s flight, as he lunged through the door into the house, one act ceased and another act commenced? As ridiculous as an affirmative reply may sound, it is the only conceivable rationale to avoid the proscriptive effect of the statute.

ADAMS, J., concurs.

ADAMS, Justice

(dissenting).

This case involves a very muddled area of the law. Our state courts have taken seemingly inconsistent positions. In Baldwin v. State, 47 Ala.App. 136, 251 So.2d 633 (1971), our Court of Criminal Appeals said, quoting from Moore v. State, 71 Ala. 307:

“A single crime can not be split up, or subdivided into two or more indictable offenses. — Drake v. State, 60 Ala. 42. A series of criminal charges can not, under our system of jurisprudence, be based on the same offense, or criminal act, at least, as concerns the dignity of the same sovereignty. — Reg. v. Elrington, 9 Cox, Cr.Cas. 86; State v. Damon, 2 Tyler (Vt.) 387; 2 Bish.Cr.Law, § 1060. If the State elects, through its authorized officers, to prosecute a crime in one of its phases, or aspects, it can not afterwards prosecute the same criminal act under color of another name. It was forcibly said in Jackson v. State, 14 Ind. 327, 328: ‘The State can not split up one crime and prosecute it in parts. A prosecution for any part of a single crime bars any further prosecution based upon the whole or a part of the same crime.’ _”

Baldwin, 47 Ala.App. at 140, 251 So.2d at 636-637.

But this court seems to state to the contrary in Racine v. State, 291 Ala. 684, 286 So.2d 896 (1973). In that ease, this court said:

A plea of former jeopardy is unavailing unless the offense presently charged is precisely the same in law and fact as the former one relied on under the plea. And this is true even if both cases are founded on the same facts but the crimes charged were not the same in law. Smith v. State, 256 Ala. 444, 55 So.2d 208; Rutherford v. State, 49 Ala.App.246, 270 So.2d 678, cert. denied, 289 Ala. 751, 270 So.2d 679 ....

Racine, 291 Ala. at 687, 286 So.2d at 898.

There is a stark contrast between our court’s resolution of this problem in the area of criminal law and our resolution made in the area of civil law. There simply can be no splitting of a civil cause of action. The doctrine of res judicata (the civil correspondent of double jeopardy) attaches. Code 1975, § 6-5-440 states:

No plaintiff is entitled to prosecute two actions in the courts of this state at the same time for the same cause and against the same party. In such a case, the defendant may require the plaintiff to elect which he will prosecute, if commenced simultaneously, and the penden-cy of the former is a good defense to the latter if commenced at different times.

See, also, Terrell v. City of Bessemer, 406 So.2d 337 (Ala.1981); Sessions v. Jack Cole Co., 276 Ala. 10, 158 So.2d 652 (1963). Should not the criminal defendant who stands in jeopardy of losing life, liberty, and property be accorded rights substantially similar to those accorded the civil defendant? It is my belief that the legislature intended to give the criminal defendant corresponding relief when it enacted Code 1975, § 15-3-8. This would not prevent the state from prosecuting a defendant for as many truly separate crimes as may arise out of the same transaction, but committed in separate acts. But to continually prosecute an individual for the same criminal act under varying theories of criminality is abhorrent to our sense of fair play and due process.

JONES, J., concurs.


author: P.B. McLAUCHLIN, Jr., Circuit Judge.

text:
    Sylvester WILLIS v. STATE.
    3 Div. 576.
    Court of Criminal Appeals of Alabama.
    Nov. 1, 1983.
    Rehearing Denied March 20, 1984.

      R. Howell Dean, Montgomery, for appellant.
    Charles A. Graddick, Atty. Gen. and Jennifer Mullins, Asst. Atty. Gen., for appel-lee.
   P.B. McLAUCHLIN, Jr., Circuit Judge.

The grand jury of Montgomery County indicted the appellant, Sylvester Willis, for the offense of robbery in the first degree in violation of Ala.Code § 13A-8-4 (1975). On March 15, 1982, the appellant filed a written waiver of arraignment and a written plea of not guilty and not guilty by reason of insanity. On April 8, 1982, the appellant was tried before a jury and found guilty as charged in the indictment. On April 30, 1982, the appellant was sentenced to 99 years’ imprisonment in the state penitentiary in accordance with the Habitual Felony Offenders Act.

At the close of the state’s evidence and at the close of the ease of the appellant, the appellant made a motion for a judgment of acquittal. The appellant also requested the affirmative charge and filed a motion for new trial. In each instance, the appellant claimed the evidence was insufficient to support the verdict and in each instance the trial judge denied the motions of the appellant.

Also, the appellant claims that the trial judge erred in denying the motion for a new trial based on newly discovered evidence.

Charles Williams owns and operates a grocery store in rural Montgomery County. He lives in a house across the street from his store. On Sunday night, September 27, 1981, Mr. Williams was in his living room reading a newspaper when he heard a knock at his front door. He asked who was there and the caller responded “Jimmy.” Mr. Williams looked out the window and saw that the caller resembled a frequent customer of his named Jimmy. Mr. Williams opened the door and the caller stepped inside, pointed a pistol at Mr. Williams and said that he would blow Mr. Williams’s brains out if Mr. Williams did not give him all of his money. The man holding the pistol took some money from Mr. Williams’s pockets and motioned toward the door. The other armed men entered the home.

All three men pulled Mr. Williams into the bedroom. They turned the bedroom lights on and stripped the bed and used the sheets to tie Mr. Williams’s hands behind him and his legs together. Mr. Williams then heard one of the men, who had left the room, shout that he had found the jackpot. He was referring to a green First Alabama Bank pouch containing cash, checks, food stamps and coins. After the intruders found the money, they pulled Mr. Williams into the bathroom and shut the door. After a few minutes, Mr. Williams untied himself and went to his phone, only to find that it had been ripped out of the wall. He then went to a neighbor’s house and called the Sheriff. During the entire episode, which lasted approximately 10 minutes, the lights were on in the living room, the bedroom and the bathroom.

At trial, Mr. Williams identified Sylvester Willis as the individual who first entered his house and robbed him. Mr. Williams also testified that he described the individuals who robbed him to the sheriff’s investigator and from his description a composite sketch was made of the appellant. Also, the other participants were identified as Wade Cargill and Eddie Mays.

Jackie Mays, the appellant’s girlfriend and Eddie Mays’s sister, testified that she heard Charles Flynn tell appellant that he could easily rob Charles Williams and that the appellant said he would not do that. She further testified that at her mother’s home, on the night of the robbery, the appellant asked her to keep $60 for him and that upon seeing the money, Charles Flynn asked whom they had robbed and someone said “Charles Williams.” She also testified that she saw a green money bag in Wade Cargill’s car and that she went with the appellant to three service stations to cash change into dollars. She also testified that her brother, Eddie Mays, had $60.

Charles Flynn testified that the day before the robbery, appellant asked him if Charles Williams was easy to rob and when Flynn said he did not know, the appellant said he was going to rob him. He further testified that he saw appellant at 11:30 Sunday night and that the appellant and Eddie Mays were counting money in the kitchen of Laura Cargill’s house. He further testified that on the following Monday, he saw a green First Alabama money bag pouch in Wade Cargill’s car.

Laura Cargill, the appellant’s mother, testified that the appellant was at her house on the night of the robbery, and the appellant’s sister testified that the appellant was at his mother’s house at 11:00 p.m. on the night in question.

The appellant denied having any conversation with Charles Flynn about robbing Mr. Williams and he testified that at the time of the robbery he was at his mother’s house.

Laura Phillips, who was called in rebuttal, testified that she overheard Sylvester Willis ask Charles Flynn if there was any way to rob Charles Williams.

There is no question that the testimony was inconsistent and conflicting. The testimony of the witnesses who were family or friends was somewhat equivocal from direct, to cross to redirect examination.

In deciding whether or not there is sufficient evidence to support the verdict of the jury and the judgment of the trial court, the evidence must be reviewed in the light most favorable to the prosecution. Cumbo v. State, 368 So.2d 871 (Ala.Cr.App.1978). Conflicting evidence presents a jury question not subject to review on appeal provided the state’s evidence establishes a prima facie case. McBryar v. State, 368 So.2d 568 (Ala.Cr.App.1979); Gunn v. State, 387 So.2d 280 (Ala.Cr.App.1980); 7 Ala. Digest, Criminal Law, Key No. 1159.-3. The action of the trial court in denying a motion for acquittal, in refusing to give the affirmative charge and in denying a motion for new trial, must be reviewed by determining whether or not there exists legal evidence before the jury, at the time the motions are made, from which the jury by fair inference could find the defendant guilty. Thomas v. State, 363 So.2d 1020 (Ala.Cr.App.1978). In applying this standard, the appellate court will only determine if legal evidence was presented from which the jury could have found the defendant guilty beyond a reasonable doubt. Thomas, supra; Payne, supra. There is a presumption in favor of a jury verdict and when the trial court declines to grant a motion for new trial, that verdict is strengthened on appeal. Therefore, when the evidence raises questions of fact for the jury and such evidence, if believed, is sufficient to sustain a conviction, the denial of a motion for acquittal, the refusal to give the affirmative charge and the denial of a motion for new trial by the trial court do not constitute error. Young v. State, 283 Ala. 676, 220 So.2d 843 (1969).

After examining the evidence and applying the proper standards of review, we find there was sufficient evidence presented by the State to allow the jury to conclude beyond a reasonable doubt that the appellant was guilty of the crime as charged.

The appellant further contends that the trial court erred to reversal in refusing to grant the motion for new trial based on newly discovered evidence.

On October 9, 1981, Charles E. Williams swore out a warrant and signed an affidavit accusing Charles Flynn of the robbery. Apparently, neither defendant nor counsel for the defendant knew of the existence of the warrant and affidavit. During cross-examination Mr. Williams denied that Charles Flynn was involved in the robbery and he stated that he did not know anything about Charles Flynn being arrested in connection with the robbery. It is the contention of the defendant that the discovery of the warrant and affidavit after trial is newly discovered evidence and that it was an error not to grant a new trial.

To establish his right to a new trial based on newly discovered evidence, the appellant must show the following: (1) that the evidence is such as will probably change the result if a new trial is granted; (2) that it has been discovered since trial; (3) that it could not have been discovered before the trial by the exercise of due diligence; (4) that it is material to the issue; and (5) that it is not merely cumulative or impeaching. Taylor v. State, 266 Ala. 618, 97 So.2d 802 (1957). Bland v. State, 390 So.2d 1098 (Ala.Cr.App.), cert. denied, 451 U.S. 991, 101 S.Ct. 2332, 68 L.Ed.2d 851 (1980).

It is obvious from reviewing the evidence in the case, that the defendant and his attorney were aware throughout the trial that Charles Flynn was a suspect and had been accused of the crime in question.

Charles Williams was cross-examined extensively as to whether or not he thought Charles Flynn was involved in the crime. On cross-examination by the appellant, Jackie Mays stated that she knew Charles Flynn had been picked up for the robbery. Charles Flynn, on direct examination by the State, admitted that he was arrested for the robbery, and on cross-examination by the appellant, Charles Flynn stated that he had been arrested for this robbery and was out on $10,000 bond. Appellant’s counsel also cross-examined Charles Flynn concerning the events surrounding his arrest. Furthermore, the defendant testified that he knew Charles Flynn had been “picked up” in connection with the robbery, and a state rebuttal witness testified that Charles Williams had accused Charles Flynn of being involved in the crime. .

Appellate courts look with disfavor on motions for new trial based on newly discovered evidence and the decision of the trial court will not be disturbed absent abuse of discretion. McBryar, supra.

This court finds no abuse of discretion in this case. The appellant did not establish his right to a motion for new trial based on newly discovered evidence according to the requirements as set out in Taylor, supra, and Bland, supra.

A careful review of the record reveals no error injuriously affecting the substantial rights of the defendant and the judgment and conviction is hereby affirmed.

The foregoing opinion was prepared by Hon. P.B. McLAUCHLIN, Jr., Circuit Judge, temporarily on duty on the court pursuant to § 12—2—30(b)(6), Code of Alabama 1975; the court has adopted his opinion as its own.

AFFIRMED.

All the Judges concur except HUBERT TAYLOR, Judge, concurs in result only.