text:
    Hubert Merrill PORTER, Sr. v. Lucy Ann PORTER.
    Civ. 3704.
    Court of Civil Appeals of Alabama.
    Aug. 24, 1983.
    Rehearing Denied Sept. 28, 1983.
    Certiorari Denied Dec. 2, 1983 Alabama Supreme Court 83-30.

      Dan McCoy, Huntsville, for appellant.
    Gary A. Phillips of Harris, Shinn, Phillips & Perry, Decatur, for appellee.
   WRIGHT, Presiding Judge.

This is an appeal from a judgment of divorce entered by the Circuit Court of Morgan County, Alabama, on October 7, 1982. Lucy Porter (plaintiff) filed her complaint in the Circuit Court of Morgan County on February 19, 1982, seeking a divorce from her husband, Hubert Merrill Porter (defendant), based upon complete incompatibility between the parties. The plaintiff also requested alimony, a division of the parties’ property and custody and support of the parties’ minor children.

When scheduled for trial the parties with their attorneys announced that a settlement had been reached. Counsel for defendant, with court approval, dictated the terms of the settlement into the record. The court requested that the parties reduce the agreement to written form to be submitted to the court for incorporation into a divorce decree.

Subsequently, plaintiff moved for a hearing and injunctive relief, averring defendant had refused to abide by the terms of the agreement stated in open court and had refused to execute documents necessary for the entry of a final judgment. Defendant filed an answer and counterclaim to the complaint, denying all material allegations and seeking a divorce on grounds of adultery as well as custody of the children and title to all the parties’ real and personal property. He also claimed newly discovered evidence which could not have been discovered prior to the statement of the agreement.

At a hearing on the pending motions, extensive arguments were made by counsel concerning the binding effect of the agreement previously stated in the record. The plaintiff claimed the agreement was binding as an enforceable contract which could not be set aside on the basis of newly discovered evidence, but rather could only be set aside based on established legal principles relating to the annulment of contracts. The defendant contended the agreement was not binding because of newly discovered evidence which had he known, would have prevented him from making the agreement. The court ruled that the agreement was binding upon the parties and granted the defendant ten days to file any additional grounds which he might have to set it aside.

Subsequently, defendant amended his answer stating that plaintiff had falsely represented to him that she was not dating any other men and had not committed adultery, and he entered into the agreement in reliance upon such representations.

The case was subsequently heard ore ten-us. Divorce was granted on the ground of complete incompatibility of temperament. Defendant was found in contempt for eight different acts. All relief requested by defendant was denied.

Defendant has appealed. Two issues are presented. The first is whether the court erred in refusing to set aside the purported settlement which defendant claims he repudiated prior to the entry of the judgment.

In resolving defendant’s first contention, we note that a trial court’s judgment comes to this court “clothed in a presumption of correctness.” Hicks v. Hicks, 405 So.2d 31 (Ala.Civ.App.1981). When a case is tried ore tenus and the trial court has the advantage of hearing the witnesses and observing their demeanor, Alabama law clearly accords the trial court’s judgment the same weight as a jury verdict and will not be disturbed on appeal unless plainly and palpably wrong. Zirlott v. Radcliff, 406 So.2d 879 (Ala.1981).

In addressing defendant’s first contention, we determine the effect of an agreement submitted to the court in settlement of a pending divorce. An agreement reached in settlement of litigation is as binding on the parties as any other contract. Brocato v. Brocato, 332 So.2d 722 (Ala.1976). Moreover, there is a strong policy of law favoring compromises and settlements of litigation, especially in suits involving families, since the honor and peace of the family is often at stake. Western Grain Company Cases, 264 Ala. 145, 85 So.2d 395 (1955). If a party could repudiate an oral agreement which was stated in open court and orally approved by the court, it would inevitably have a chilling effect upon all settlements made the day of a trial, which is an effect clearly contrary to established policy favoring settlement among litigants.

That the agreement was not reduced to writing and signed by the parties did not negate its binding effect. Rule 47 of the Alabama Rules of Appellate Procedure specifically provides that “agreements made in open court or at pre-trial conferences are binding whether such agreements are oral or written.” Defendant attempting to repudiate the settlement prior to the submission of a written agreement to the court for incorporation into a judgment did not change the binding nature of the agreement. In Broeato the court specifically rejected an argument that an agreement in settlement of litigation could be repudiated “before any of the provisions were carried out.”

Defendant relies upon the equitable reasons stated in Kohn v. Kohn, 52 Ala.App. 636, 296 So.2d 725 (1974), that the settlement agreement not be permitted to stand. In Kohn this court found that even in the absence of duress, fraud or undue influence, the settlement agreement should be set aside after it was filed but before acted upon by the court because of the inequity of the agreement itself. The Kohn case, however, is distinguishable from the present case at bar. In Kohn the wife took virtually everything, leaving the husband a 1965 car and approximately $150 out of an estate valued around $200,000. Kohn v. Kohn, 296 So.2d at 728.

It must be recognized that though an agreement may be binding upon the parties in a divorce case, it is not binding upon the court. In rendering judgment, the court may accept or reject such an agreement, in whole or in part. Kohn v. Kohn, supra.

The second issue presented is that the court erred in regarding the settlement agreement as a completed contract.

We have carefully reviewed the record which contains verbatim the discussion between counsel and the court relative to the settlement dictated by defendant’s counsel before the court. There had been previous lengthy negotiation between the parties acting through their respective counsel. The court was thereafter notified that the parties desired that the court should place their agreement into its decree of divorce.

Subsequently, defendant moved that the court disregard his agreement and not enter a decree in accord with it. As grounds for his motion, defendant merely states that he learned after making the agreement that his wife was dating other men. He says had he known of her conduct he would not have made the agreement. Defendant has not alleged or proved that the terms of the agreement were unfair or inequitable in any respect, though he was given every opportunity by the court to do so. He spent all efforts, however, in presenting evidence concerning his wife’s relationship with other men.

Defendant has set his argument in the premise that the agreement presented to the court was by nature a contract and must stand or fall upon contract principles. We do not view the events which occurred in this case as standing upon contract principles. It appears to this court that the parties came before the trial court for an ore tenus hearing upon complaint for divorce and answer thereto. Rather than present testimony for the court’s consideration and judgment, the parties with counsel discussed the issues and reached an agreement. They so informed the court and stated the agreement to the court. After discussion and determination of the understanding of the parties, the court directed that the agreement be detailed in writing and presented to him for incorporation in his decree. The case was then set for the subsequent taking of testimony as to the ground for divorce.

It appears to this court that there is involved merely a request by the parties that the court forego the necessity for extensive taking of testimony on the issues of child custody, alimony, child support and property division and incorporate into its decree the joint recommendation of the parties. The court was not concerned with whether there existed a binding contract between the parties. The court was aware that no contract could bind its decree. The court was not accepting an executed, witnessed or notarized contract. It was accepting the joint request of the parties then standing before it and which had been negotiated at that time. We therefore conclude that it was within the discretion of the court to permit defendant to repudiate his agreement for good cause shown. Rule 47, A.R.A.P.

The court heard the testimony of defendant and determined the absence of good cause therein for his withdrawal from the agreement. When viewed with the presumption of correctness due a judgment made after hearing ore tenus, we find no abuse of discretion in the judgment of the trial court.

Appellee’s request for attorney’s fees on appeal is granted in the sum of $500.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


source: Caselaw Access Project

author: HOLMES, Judge.

license: Public Domain

text:
    E.W. BATTLES, et al. v. SAN ANN SERVICE, INC., and Martin Oil Company, Inc.
    Civ. 3707.
    Court of Civil Appeals of Alabama.
    Aug. 24, 1983.
    Rehearing Denied Sept. 14, 1983.
    Certiorari Denied Dec. 2, 1983 Alabama Supreme Court 82-1285.

      Thomas E. Davis of Burns, Shumaker & Davis, Gadsden, for appellant.
    T.J. Carnes of Carnes & Carnes, Albert-ville, for appellee San Ann Service, Inc.
    James S. Sledge of Inzer, Suttle, Swann & Stivender, Gadsden, for appellee Martin Oil Co., Inc.
   HOLMES, Judge.

This is a case concerning unlawful interference and conspiracy to unlawfully interfere with a business.

The appellant, Battles, brought suit against San Ann Service, Inc., and Martin Oil Company. Battles’s amended complaint contained three counts: Count one named San Ann only and alleged that San Ann unlawfully interfered with Battles’s business. Count two named San Ann and Martin Oil and alleged a conspiracy to unlawfully interfere with Battles’s business. Count three named Martin Oil only and alleged that Martin Oil had converted certain property.

After Battles presented his case, the trial court as to counts one and two granted a motion for directed verdict on behalf of San Ann and Martin Oil. The conversion claim against Martin Oil was submitted to the jury and a verdict of $2,000 was returned in Battles’s favor. A judgment was entered on the jury verdict. Thereafter, Battles’s motion for a new trial was denied.

Battles, through able counsel, appeals from the directed verdict in favor of San Ann and Martin Oil and from the trial court’s denial of the motion for new trial. We find no error requiring reversal and affirm.

At the outset we note that San Ann has filed with this court a motion to dismiss the appeal. The basic premise of the motion is that there is no final judgment against San Ann which will support an appeal in that San Ann was not named in the final judgment. We disagree and deny the motion, thereby reaching the merits of the appeal. It is the policy of this court to “reach” the merits of an appeal whenever possible.

The record clearly reveals that the trial court granted San Ann’s motion for directed verdict. The record is equally clear that a motion for new trial was made on behalf of Battles. This motion for new trial is bottomed, in part, on the premise that the trial court erred in granting the aforesaid directed verdict. The trial court denied the motion for new trial. Battles appeals and the notice of appeal states that the appeal is from the jury’s verdict and resulting judgment and the trial court’s actions denying the motion for new trial.

A party has a right to appeal from a circuit court decision refusing a motion for new trial. Johnson v. Hodge, 291 Ala. 142, 279 So.2d 123 (1973).

Furthermore, our supreme court has held that the test of finality of a judgment or decree to support an appeal is whether such judgment or decree “ascertains and declares such rights embracing the substantial merits of the controversy and the material issues litigated or necessarily involved in the litigation.” Morton v. Chrysler Motors Corp., 353 So.2d 505 (Ala.1977).

In view of the above, the denial of the motion for new trial taken in conjunction with the directed verdict and the final judgment constitutes a complete adjudication of the rights and liabilities of the parties concerned. See Morton v. Chrysler Motors Corp., 353 So.2d 505 (Ala.1977). We therefore find that there is such a judgment as to support an appeal.

In regard to Battles’s appeal, the record reveals the following:

Appellant Battles operated a gasoline service station in connection with Martin Oil Company. Battles received the three cents a gallon without regard to the retail price of gasoline. Martin Oil set the price per gallon at Battles’s station and the pumps required a key to unlock and set the price on the machine.

There was also a verbal agreement between Battles and Martin Oil whereby Martin Oil agreed to keep the price of gasoline per gallon one cent above the price of gas sold by competing stations in the area. Ap-pellee San Ann operated a station directly across the highway from Battles’s station. San Ann also operated a station across from another Martin Oil station in a different part of the county where Battles’s station was located.

Sometime in November, 1978, San Ann lowered the price per gallon of gasoline at the two stations located next to the Martin Oil stations. Martin Oil responded by lowering the price at Battles’s station accordingly. Prices at the other Martin station were not lowered to “keep up” with San Ann. Each time Martin Oil set Battles’s prices to within one cent of San Ann’s, San Ann dropped the price lower. San Ann continued to lower prices and Martin followed at Battles’s station until the price dropped below Martin’s cost. By that time Battles had “run out” of gasoline. Martin Oil padlocked the pumps and never delivered any more gasoline to Battles’s station.

Subsequently, Battles brought suit against San Ann for unlawfully interfering with his business. In addition, Battles’s complaint was later amended to allege that San Ann and Martin Oil conspired to unlawfully interfere with Battles’s business. As indicated above, a directed verdict was granted defendants on the conspiracy and unlawful interference counts. Battles moved for a new trial and was denied. He now appeals.

The dispositive issues on appeal are whether the trial court erred in granting a directed verdict in view of the evidence and whether the trial court erred in denying the motion for new trial. .

The standard by which the trial court must determine the propriety of granting a motion for directed verdict, and our standard upon review, is the scintilla rule. Rule 50(e), A.R.Civ.P. In civil cases, a question must go to the jury if the evidence, or any reasonable inference arising therefrom, furnishes the least or smallest trace or scintilla in support of the theory of the complaint. Turner v. Peoples Bank of Pell City, 378 So.2d 706 (Ala.1979).

Therefore, the issue is whether there was a scintilla of evidence in support of Battles’s complaint alleging conspiracy and unlawful interference with business. We hold that there was not and affirm.

A civil conspiracy has been defined in Alabama as being a combination between two or more persons to accomplish by concert an unlawful purpose or to accomplish a lawful purpose by unlawful means. Turner v. Peoples Bank of Pell City, 378 So.2d 706 (Ala.1979); Barber v. Stephenson, 260 Ala. 151, 69 So.2d 251 (1954).

The evidence in the present case fails to show a conspiracy between San Ann and Martin Oil. Viewed in a light most favorable to Battles, the evidence shows that San Ann acted unilaterally in lowering its prices until Martin Oil could no longer profitably compete. By his own admission, Battles declined to sell gasoline at any price higher than one cent above San Ann’s price. The record discloses no evidence of any obligation on the part of Martin Oil to supply Battles with gasoline. There is no indication that Martin Oil did anything other than look after its own business interests.

Battles relies on the testimony of the sales manager of Martin Oil as providing a scintilla of evidence sufficient to overcome the directed verdict standard. At the trial, Martin Oil’s employee testified to a telephone conversation with a representative of San Ann. The gist of the testimony was that the San Ann representative declared that San Ann would lower prices to whatever level it took to close up Battles’s station.

This testimony clearly shows that Martin Oil acted from economic pressures, not from any conspiracy to interfere with Battles’s-business.

There being no evidence of any conspiracy, the trial court was correct in granting directed verdict to that count. The adjudication of the conspiracy count removed Martin Oil from the interference with business claim. At trial there remained only the conversion count against Martin which is not at issue here.

The claim against San Ann for unlawful interference with business rests on basically the same evidence as the conspiracy claim.

As indicated above, the evidence shows no unlawful action or purpose on San Ann’s part. At most, San Ann engaged in what is commonly known as a “gas war.” This state holds to the principle that “competition in business, even though carried to the extent of ruining a rival, constitutes justifiable interference in another’s business relations, and is not actionable, so long as it is carried on in furtherance of one’s own interests.” Beasley-Bennett Electrical Co. v. Gulf Coast Chapter of the National Electrical Contractors Ass’n, 273 Ala. 32, 134 So.2d 427 (1961). See also Byars v. Baptist Medical Centers, Inc., 361 So.2d 350 (Ala.1978).

There is nothing in the record to indicate that San Ann did anything illegal or anything legal for an illegal purpose. Clearly it is in one’s best interest to drive a competitor out of business. And although it might appear cold and ruthless, there is nothing illegal in that, considering the facts and circumstances in the present case.

In view of the above, the trial court did not err in its action granting the motion for directed verdict and denying the motion for new" trial.

This case is due to be and is affirmed.

AFFIRMED.

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


author: PER CURIAM.

text:
    ADVENTURE TRAVEL AGENCY v. Frank FALKENBURG.
    Civ. 3763.
    Court of Civil Appeals of Alabama.
    Aug. 24, 1983.
    Rehearing Denied Sept. 21, 1983.
    Certiorari Denied Dec. 2, 1983 Alabama Supreme Court 83-7.

      Robert C. Snead, Jr., Birmingham, for appellant.
    William B. Hairston, Jr. of Engel, Hair-ston, Moses & Johanson, Birmingham, for appellee.
   PER CURIAM.

The plaintiff sued the defendant seeking payment for certain airline tickets. The trial court granted summary judgment for the defendant. The plaintiff appeals and this court reverses.

The dispositive issue on appeal is whether there is such a “genuine issue as to a material fact, etc.,” that summary judgment is inappropriate. We find that there is such a “genuine issue, etc.,” and, as indicated, reverse and remand.

Pertinently the record reveals the following: Plaintiff, Adventure Travel Agency, filed suit against Frank Falkenburg seeking recovery for $8,372.75 worth of airline tickets issued to the Birmingham Bulls hockey team. Defendant is a partner or general partner of the Bulls’ parent organization. According to the amended complaint, at the time the defendant contacted plaintiff about furnishing tickets, the Bulls’ financial position was so poor that the agency refused to deal directly with the team. Plaintiff alleges that it agreed to furnish tickets only when defendant, an established customer of the travel agency, agreed to be personally liable for payment of the tickets. Plaintiff supplied the tickets on or about January 7, 1981. Bills for the tickets were sent to both the Bulls and the defendant, but no payment has been made.

At the outset we note the following standard of review applicable in a summary judgment case:

“To decide an appeal from a summary judgment this Court looks to the same factors the trial court initially considered in ruling on the motion. Tolbert v. Gulsby, 333 So.2d 129 (Ala.1976); Long v. Bankers Life & Casualty Co., 294 Ala. 67, 311 So.2d 328 (1975). ARCP 56(c) states that a summary judgment ‘shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.’ All reasonable inferences from the facts are to be viewed most favorably to the non-moving party and the moving party must establish that the other party could not recover under ‘any discernible circumstances.’ Folmar v. Montgomery Fair Co., Inc., 293 Ala. 686, 309 So.2d 818 (1975). The scintilla evidence rule requires that if there is even a scintilla of evidence presented to support the non-moving party’s position the summary judgment may not be granted. Browning v. Birmingham News, 348 So.2d 455 (Ala.1977); Wilbanks v. Hartselle Hospital, 334 So.2d 870 (Ala.1976).”

Chiniche v. Smith, 374 So.2d 872, 873 (Ala.1979).

In dealing with a summary judgment motion a court must bear in mind that the burden of producing evidence of the necessary certitude to negate the opposing party’s claim always rests with the moving party, regardless of the fact that the burdens of proof might be assigned otherwise at trial. See 6 Moore’s Federal Practice ¶ 56.15[3] (2d ed. 1983). The questions before this court, therefore, are whether the defendant presented sufficient evidence to establish that plaintiff, as a matter of law, cannot recover on any of the theories of relief pleaded, see Tolbert v. Gulsby, 333 So.2d 129, 131 (Ala.1976), and if so, has plaintiff adequately countered defendant’s showing.

Defendant through able counsel moved for summary judgment, relying upon the statute of frauds provision in § 8-9-2(3), Ala.Code (1975), which voids any “special promise to answer for the debt, default or miscarriage of another” unless the promise is recorded in a written agreement, note, or memorandum. Defendant also relied upon evidence contained in plaintiff’s answers to defendant’s first set of interrogatories and request for production in an attempt to establish that defendant’s role was solely that of a guarantor or surety for a debt primarily assumed by the Bulls’ team. After considering the matter, including the briefs of the parties and the applicable case law, this court, as indicated, finds that a genuine fact issue exists as to defendant’s proper role and that summary judgment was improvidently granted.

Riteway Machine & Manufacturing Co. v. First National Bank, 374 So.2d 1361 (Ala.1979), involved a directed verdict based upon the statute of frauds’ provision contained in § 8-9-2(3). In reversing the decision below, the Alabama Supreme Court emphasized that the frauds statute' applies only when the promisor assumes secondary liability for a debt:

“Code 1975, § 8-9-2(3) provides generally that every special promise to answer for the debt, default, or miscarriage of another is void unless it is written. As was noted in Boykin & McRae v. Dohlonde & Co., 37 Ala. 577 (1861), the determinative inquiry is to whom did the promisee extend the credit. If the prom-isee extended credit to the promisor, then the promisor is not being asked to answer for the debt of another, and it is immaterial that the goods were delivered to or the services were performed for someone other than the promisor. If that be the case, then the requirement that the promise be written is not applicable.”

374 So.2d at 1370. Following Riteway, the summary judgment was appropriate only if the facts established, without dispute, that defendant agreed, but not in writing, to serve only as a guarantor or surety for a debt assumed in the first place by the Bulls’ team. If it is unclear whether defendant assumed primary or secondary liability, then the question must be submitted to a jury. Id.

The evidence defendant relied upon includes numerous bills from the travel agency which were addressed only to the “Birmingham Bulls” and which were sent to the hockey team’s address. It was not until June of 1981 that the plaintiff travel agency added defendant Falkenburg’s name to the bill and changed the billing address to Falkenburg’s work address. The defendant contends that this evidence conclusively establishes that he agreed and that the plaintiff understood that he was to serve only as a guarantor on the Bulls’ obligation. (Defendant stresses that plaintiff looked to defendant for payment only when it became clear that the hockey team would not satisfy the debt.) Defendant also relies on a March 16, 1981 letter from the plaintiff travel agency to the Bulls which contains the following two paragraphs:

“We have attached an up to date statement of the Birmingham Bulls account. Your present balance is $8,372.75 and immediate payment is expected.
“When we opened your account you stated that All Seasons Travel had refused to issue additional tickets without cash payment. Adventure Travel agreed to issue tickets against gate receipts of the out of town games. But in no case would you need more than two weeks credit. This has not been the case, your present debt is now more than a month in arrears.”

Defendant urges that this letter supports his contention that the Bulls were primarily liable for the tickets purchased..

Without deciding whether such evidence would be sufficient to satisfy the heavy burden placed upon defendant as the summary judgment movant, this court must find that other evidence in the record, favorable to plaintiff, contradicts defendant’s evidence, creates a factual issue, and mandates reversal of the summary judgment. In her affidavit Carol Retan, an agent for the plaintiff, testified as follows:

“During the negotiations with Mr. Falk-enburg I made it clear to him that the Birmingham Bulls credit was unacceptable and that any credit extended by Adventure Travel would be to Mr. Falken-burg and that Adventure Travel would hold him responsible for the payment of the account. Mr. Falkenburg agreed to be personally liable for payment of the account.”

Max Hale, another employee of the plaintiff, gave the following explanation in his interrogatory answer:

“When Frank Falkenburg was asked to pay up, he asked us to intercede and see if [the Bulls] would not come up with the proceeds from the residual money left in the equipment that they claimed they owned that had to be auctioned off. As an accommodation to Mr. Falkenburg we tried to collect from the Bulls organization and failed.... Mr. Falkenburg finally advised that if he paid for the tickets he had no way of collecting from the Bulls organization and refused to honor his obligations.”

Taken together, this evidence is sufficient to create a question for the trier of fact as to whether Mr. Falkenburg agreed to be primarily or secondarily liable on the tickets. If Falkenburg agreed to be a surety (secondarily liable) the statute of frauds would apply and plaintiffs claim would fail without written proof of defendant’s promise. On the other hand, if Falkenburg agreed to be primarily liable no writing containing his promise would be necessary and the statute of frauds provision would be rendered inapplicable.

In view of the above, the learned and distinguished trial judge erred in granting summary judgment. Accordingly, the summary judgment entered below is hereby reversed and remanded.

REVERSED AND REMANDED.

All the Judges concur.


text:
    Austin PUGH v. STATE of Alabama ex rel. Chris H. GALANOS, District Attorney for the Thirteenth Judicial Circuit of Alabama.
    Civ. 3770.
    Court of Civil Appeals of Alabama.
    Aug. 24, 1983.
    Rehearing Denied Sept. 21, 1983.
    Certiorari Denied Dec. 16, 1983 Alabama Supreme Court 83-16.

      Willis W. Holloway, Jr., Mobile, for appellant.
    Charles A. Graddick, Atty. Gen., and Thomas R. Allison, Asst. Atty. Gen., for appellee.
   HOLMES, Judge.

This is an appeal by the owner of an automobile from a condemnation proceeding. After an ore tenus hearing the trial court forfeited the automobile. The owner, through able counsel, appeals and we affirm.

The dispositive issues are (1) whether the forfeiture of the automobile was based upon inadmissable evidence in that unauthorized law enforcement officials conducted an illegal search in violation of constitutional rights and (2)' whether there was sufficient evidence that the owner knew or should have known that his automobile would be used to transport drugs.

The record reveals the following pertinent facts:

Acting on information received from a confidential enformant, law enforcement officials including city policemen, the Alabama Bureau of Investigation, and federal narcotics agents observed and then stopped the defendant while driving the vehicle in question. The automobile belonged to the defendant’s brother who had loaned the vehicle to defendant that day.

A warrantless search of the automobile turned up approximately four ounces of cocaine which was seized and defendant was arrested. The district attorney of Mobile County thereafter petitioned to have the vehicle condemned pursuant to § 20-2-93, Ala.Code (1975).

After an ore tenus hearing the trial court found that the owner of the vehicle knew or should have known that, given the reputation of his brother, the defendant, the vehicle might be used for illegal transactions. Consequently, the trial court ordered the automobile forfeited to the police.

On appeal, the owner first contends that the automobile was illegally searched and that the forfeiture cannot be predicated on evidence seized during the search. More specifically, the owner contends that the officers conducting the search were not authorized to do so and that there was no probable cause present to justify a warrant-less search.

The owner relies on statutes pertaining to the issuance and execution of search warrants that authorize only the sheriff or someone under his supervision to execute warrants. §§ 15-5-1, 15-5-5; 15-5-7, Ala.Code (1975). It is undisputed that the sheriff was not involved in the instant case. However, the present case involves a war-rantless search. Section 15-5-30, Ala.Code (1975), gives policemen of any incorporated city the authority to stop and question any person in a public place who the policemen reasonably suspect is committing, has committed, or is about to commit a felony or other public offense. Additionally, the police are allowed to conduct a warrantless search of the vehicle stopped if they have probable cause. Daniels v. State, 290 Ala. 316, 276 So.2d 441 (1973).

All searches without a warrant are deemed unreasonable unless they fall within certain recognized exceptions to the warrant requirement. Daniels v. State, 290 Ala. 316, 276 So.2d 441 (1973). The most pertinent exception as far as it concerns the present case involves exigent circumstances coupled with probable cause.

In McClellan v. State, 415 So.2d 1238 (Ala.Cr.App.1982), the court of criminal appeals states the law regarding probable cause that we believe is applicable in the case at bar.

“Probable cause may be based solely on hearsay information received from an informant as long as there is a ‘substantial basis for crediting the hearsay.’ Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960); Clenney v. State, 281 Ala. 9, 198 So.2d 293 (1966). A substantial basis for believing the hearsay report exists if the informant’s tip satisfies the ‘veracity’ and ‘basis of knowledge’ requirements outlined in Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964). However, if the tip fails to meet either the veracity or basis of knowledge test, it may still, by itself, supply probable cause if the tip is ‘self-verifying,’ i.e., if its information is so detailed and specific that a ‘magistrate, when confronted with such detail, could reasonably infer that the informant gained his information in a reliable way.’ Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969).”

McClellan v. State, 415 So.2d 1238, 1239-40 (Ala.Cr.App.1982). Cf. Murray v. State ex rel. Tidwell, 423 So.2d 246 (Ala.Civ.App.1982). (Informant’s tip did not provide probable cause.)

In the present case, the evidence shows that the informant gave the police the name of the defendant, his description, where the defendant would be, and at what time the defendant would be leaving with the drugs. In addition, the informant gave the police a description of the car defendant would be driving. The defendant was known by name and on sight by the police and they observed him the same day they received the tip at the time and place and in the car that the informant had said defendant would be driving. Every detail was as the informant had told the police and the police verified the details before stopping defendant. This added with the fact that the defendant was known to the police to be a reputed drug dealer is to this court clearly sufficient to bring the present case within the standard pronounced in McClellan v. State, 415 So.2d 1238 (Ala.Cr.App.1982). Therefore, probable cause was present for the search and the exigent circumstances existed because of the use of the automobile. McClellan v. State, supra.

In view of the exigent circumstances coupled with probable cause, we find that the law enforcement authorities were authorized to make a warrantless search of the owner’s automobile and the evidence obtained as a result of the search was properly admitted in the condemnation proceedings.

Lastly, the owner contends that there was not sufficient evidence to show that he knew or should have known that the defendant would be using his automobile for illegal transactions.

Section 20-2-93(a)(4)(b), Ala.Code (1975), states that “[no] conveyance is subject to forfeiture under this section by reason of any act or omission established by the owner thereof to have been committed or omitted without his knowledge or consent.”

In the present case, the owner testified that he did not know when he lent his brother his automobile that the brother would be using it to transport illegal drugs. However, numerous law enforcement officials testified that the owner’s brother, the defendant, had a reputation in the community as one of the largest drug traffickers in the area. The gist of the testimony was that the defendant/brother was known by the police and by the community at large as a drug dealer.

When a case is heard ore tenus by the trial court sitting without a jury, the trial court’s findings are presumed correct unless shown to be clearly contrary to the great weight of the evidence. Eleven Automobiles v. State ex rel. Graddick, 384 So.2d 1129 (Ala.Civ.App.1980). In the present case there was sufficient evidence, as indicated above, to support the trial court’s findings in regard to the owner’s knowledge of the defendant’s illegal use of the automobile.

This case is due to be affirmed.

AFFIRMED.

BRADLEY, J., concurs.

WRIGHT, P.J., concurs in the result.


text:
    Cephas TARDZER v. Albertha Watts TARDZER.
    Civ. 3746.
    Court of Civil Appeals of Alabama.
    Sept. 7, 1983.
    Rehearing Denied Oct. 5, 1983.
    Certiorari Denied Dec. 2, 1983 Alabama Supreme Court 83-127.

      David G. Flack, Montgomery, for appellant.
    Howard C. Alexander, Montgomery,- for appellee.
   HOLMES, Judge.

This is a divorce case.

The circuit court, after an ore tenus hearing, divorced the parties, awarded primary custody of four minor children to the wife, and required the husband to pay $150 per month as child support.

The husband appeals, contending that the trial court erred in awarding custody of the four minor children to the wife. He particularly urges error in the award of custody to the wife of his two children from a prior marriage. Additionally, the husband contends in effect that the trial court erred in the award of child support. This court disagrees and affirms.

Viewing the record with the attendant presumptions accorded the trial court’s action, the following is revealed. We note at this point that the evidence before this court is via rule 10(d), A.R.A.P., and unfortunately is not a paragon of clarity.

The parties were married in 1973. At the time of the marriage the husband had two children from a former marriage, ages one year and three years. Two more children were subsequently born, one in 1975 and the other in 1976.

There is evidence and inferences therefrom that the wife has cared for and loved all four children during the entire marriage. The children are well adjusted and have close ties with one another. According to the mother’s testimony, the two children by the former marriage, now ages eleven and thirteen, desire to remain with the younger children, i.e., their step-siblings.

There is evidence that the husband, a Nigerian National, is “wanted” for automobile theft in Nigeria. There is further evidence that since December of 1980, after the couple separated, the father has contributed only approximately $600 to the support of the minor children. Additionally, there is evidence that before the couple separated the father was abusive to the wife and made threats against the wife in the presence of the children. Needless to say, there is evidence to the contrary and explanations regarding certain aspects of the above.

In any event, with the above before it, the trial court awarded what can be described as primary custody of the four children to the wife. In effect, the wife was awarded custody during the school year and the husband was awarded custody during the summer months and certain holiday periods. Additionally, the husband was required to pay $150 per month as child support.

As indicated, the first error urged by the husband is the award of primary custody to the wife.

Suffice it to say that, in view of the facts as indicated above, we cannot say as a general proposition that the trial court erred in the custody arrangement. The custody of and visitation rights with children are matters addressed to the discretion of the trial court subject to reversal only upon plain and palpable abuse of such discretion. Dasinger v. Dasinger, 369 So.2d 813 (Ala.Civ.App.1979); 8 Ala. Digest, Divorce, Key No. 312.6(4). We find no such abuse of discretion as to require reversal.

The husband, through able counsel, specifically urges error in the award of his two minor children from a former marriage, to the wife, i.e., the children’s stepmother. In support of his argument he cites Ex parte Berryhill, 410 So.2d 416 (Ala.), on remand, 410 So.2d 419 (Ala.Civ.App.1982), authored by the distinguished jurist, Mr. Justice Beatty.

Berryhill discusses the presumption in favor of custody to the natural parent as opposed to third parties. Of course, this court recognizes and follows the principle as enumerated in Berryhill. However, Berry-hill recognizes specifically that the welfare of the child or children is still the paramount consideration in determining custody in a divorce proceeding. See Berryhill, 410 So.2d at 417 (quoting Striplin v. Ware, 36 Ala. 87,90 (1860): “unless it plainly appears that the interest of the child requires it to be set aside.”).

See also Skipper v. Skipper, 280 Ala. 506, 195 So.2d 797 (1967); 8 Ala. Digest, Divorce, Key No. 298(1).

In the instant case, the facts indicate to this court as they did to the trial court that the best interests of the children are that they remain with the wife. The wife has been with the subject children since they were three years old and one year old respectively. The children are extremely well adjusted, the father has provided little support in recent years, the father has been abusive to the mother in the presence of the children, etc. Most importantly, it appears that the children want to remain in their present environment.

While the preferences of the children are not controlling, their desires regarding custody are to be given much weight. See Rogers v. Rogers, 345 So.2d 1368 (Ala.Civ.App.1977); 8 Ala. Digest, Divorce, Key No. 298(5).

See also Stinnett v. Gilchrist, 419 So.2d 238 (Ala.Civ.App.1982), decided after Berry-hill, authored by our distinguished Presiding Judge Wright which is in accord with the above and Chandler v. Manning, 411 So.2d 160 (Ala.Civ.App.1982), authored by our distinguished colleague, Judge Bradley.

In view of the above, we find no such abuse of discretion in the trial court’s action regarding the two older children as requires reversal.

As to the husband’s apparent contention that the award of $150 as child support requires reversal, we find no merit. The award of child support is within the discretion of the trial court and will not be reversed on appeal unless there is a plain and palpable abuse of that discretion. Butts v. Butts, 418 So.2d 161 (Ala.Civ.App.1982).

The husband, as we perceive it, contends that he should receive a reduction or cessation of the support payments when the children are with him in the summer months, etc. Suffice it to say that in view of the small amount of child support and the fact that certain expenses continue even if the children are not physically present, we find no merit in this contention.

The case is due to be affirmed.

AFFIRMED.

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


author: BRADLEY, Judge.

text:
    Ralph P. EAGERTON, Jr., as Commissioner of Revenue of the State of Alabama v. SEARS, ROEBUCK AND CO., a corporation, and Daniels Golden Rule Press, Inc., a corporation.
    Civ. 3938.
    Court of Civil Appeals of Alabama.
    Sept. 7, 1983.
    Rehearing Denied Oct. 12, 1983.
    Certiorari Denied Dec. 16, 1983 Alabama Supreme Court 83-139.

      Charles A. Graddick, Atty. Gen., and B. Frank Loeb, Chief Counsel, and John J. Breckenridge, Asst. Counsel, Dept, of Revenue, and Asst. Attys. Gen., for appellant.
    William J. Ward, Warren H. Goodwyn and William E. Shanks, Jr. of Balch, Bing-ham, Baker, Ward, Smith, Bowman & Tha-gard, Birmingham, for appellees.
   BRADLEY, Judge.

On August 20, 1981 Sears, Roebuck and Company (Sears) and Daniels Golden Rule Press, Inc. (Daniels) jointly filed with the Commissioner of Revenue of the State of Alabama a petition for refund of taxes paid through a mistake of fact or law pursuant to § 40-1-34, Code 1975, seeking a refund of sales taxes in the amount of $43,147.03 paid for the period August 20,1978 through March 31, 1981, with respect to the sale of newspaper advertising supplements from Daniels to Sears. The Commissioner denied the petition for refund of Sears and Daniels.

On June 22, 1982 Sears and Daniels sought review in the Circuit Court of Montgomery County, Alabama by way of a writ of mandamus of the Commissioner’s denial of their request for a refund.

After a hearing the circuit court entered an order requiring the Commissioner of Revenue to certify to the comptroller that the State owed Sears the sum of $43,147.03 with interest thereon, representing an overpayment of sales tax for the period of August 20, 1978 through May 31, 1981.

On May 2,1983 the Commissioner of Revenue appealed to the Supreme Court of Alabama the judgment entered in the sales tax case ordering a refund of sales tax to Sears. The supreme court transferred the case to this court for decision.

The primary issue raised in appellant’s brief is whether the payments by Sears to Daniels for the printing of newspaper advertising supplements are exempt from sales taxation. Appellee argues that the recent supreme court case of Eagerton v. Dixie Color Printing Corp., 421 So.2d 1251 (Ala.1982), is factually similar to the case sub judice and, therefore, the present case should be affirmed on the authority of Dixie Color. Appellant, on the other hand, argues that Dixie Color is distinguishable from the present case and should not be followed.

In Dixie Color, Dixie Color, a subsidiary of Buffalo Press, was a commercial printer located in Sylacauga, Alabama. They had a contractual agreement with Moore-Handley whereby Dixie Color printed newspaper advertising supplements for Moore-Handley for insertion into various newspapers for distribution. The supplements were printed with the intended purpose of being inserted and resold as a part and parcel of the newspapers. Dixie Color collected no sales tax from Moore-Handley, contending the sales of the supplements were exempt since they became an integral part of the newspapers.

In the present case Daniels is also a commercial printer located in the state of Alabama. Daniels had a contract with Sears to print newspaper advertising supplements for Sears for incorporation into various newspapers for distribution to their subscribers. Additionally, the newspaper supplements bore the name and date of a particular edition of the newspapers into which they were mechanically inserted.

The only difference in the present case from Dixie Color is that a joint petition for refund of sales taxes was filed by Daniels and Sears, while in Dixie Color the petition for refund was brought solely by Dixie Col- or as the printer. Thus, the printer was the plaintiff in Dixie Color, while the printer, Daniels, and its customer, Sears, were plaintiffs in the trial court here. This technical difference in the posture of lawsuits in no way detracts from the fact that the substance of the transactions involved in the present case and Dixie Color are identical.

Clearly, every material fact in Dixie Col- or is also present in the instant case. We hold that the decision of the supreme court in Dixie Color is dispositive of this case. Thus, we affirm the trial court’s judgment.

AFFIRMED.

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


text:
    Mrs. B.W. (Velma) CARTER v. James C. COOLEY, Lenora Cooley, Tim McCoy Cooley and Frances East Cooley.
    Civ. 3876.
    Court of Civil Appeals of Alabama.
    Oct. 12, 1983.
    Rehearing Denied Nov. 16, 1983.
    Rebecca S. Bozeman, Birmingham, for appellant.
    No brief for appellees.
   BRADLEY, Judge.

Mrs. B.W. (Velma) Carter, placed a sign on her property advertising a portion of it for sale. James C. Cooley and his wife, Lenora Cooley, Tim McCoy Cooley and his wife, Frances E. Cooley, commenced negotiations with Mrs. Carter for the purchase of the advertised portion of her property. After a survey was completed, the Cooleys ■ purchased the property on August 4, 1970. In September 1970 the Cooleys moved two mobile homes onto the property and paved a parking area in the rear of the mobile homes. The paved parking area was used by the Cooleys to park their cars and trucks.

The Cooleys used a road, claimed by Mrs. Carter to be a private road, to drive into and out of the paved parking area. Lenora Cooley also opened a palm reading business in one of the mobile homes and displayed a sign indicating that palmist services were available. Customers for that service used the road to drive onto the asphalt parking area.

Mrs. Carter became annoyed with the traffic on the road and in November 1979 closed off part of the road. She had two metal posts buried in the ground with a chain hung between the two posts to deny access to vehicular traffic. James Cooley removed one of the posts and continued to use the private road.

Approximately two weeks later Mrs. Carter had a load of dirt placed on the length of the road, which effectively denied use of the road. After this occurrence the Cooleys brought suit, alleging that Mrs. Carter had fraudulently represented to them that the road in question was a public road and that its northern boundary abutted the southern boundary of the property purchased from her. The Cooleys further alleged that Mrs. Carter blocked the road, claiming it to be a private road, and thus denied the Cooleys access to their property. A trial was held and the jury awarded the Cooleys $7,000 in damages. After the denial of her posttrial motions, Mrs. Carter appeals.

The first issue to be considered here is whether Mrs. Carter fraudulently represented to the Cooleys that the road in question was a public road and that the southern line of the property purchased from her was the northern edge of the road, thus assuring the Cooleys of access to that public road. Mrs. Carter argues that the actual boundaries of the property sold to the Coo-leys were accurately set out in the deed and that she did not misrepresent to the Cooleys the status of the road in question, i.e. whether it was a public road. Mrs. Carter also argues that the road was a private road and she thus had the right to prevent the Cooleys or anyone else from using it.

The evidence introduced at trial concerning whether Mrs. Carter had misrepresented the status of the road is in sharp conflict. The jury found for the Cooleys, i.e. that Mrs. Carter had fraudulently misrepresented the status of the road in question.

Where the evidence is conflicting but sufficient to support the verdict of the jury, the judgment of the trial court will not be set aside unless this court is convinced that the verdict is wrong or unjust. Shiver v. Waites, 408 So.2d 502 (Ala.1981). After a careful examination of the evidence in the record before us, we are not convinced that the verdict and.judgment are wrong or unjust.

Mrs. Carter’s other issue questions the award of any damages to the Cooleys. She contends that the Cooleys suffered no actual damage and thus should not have received a monetary award.

In Alabama a jury may award punitive damages even though there is a failure to show actual damages, i.e. proof of nominal damages will support a punitive damages award. Rushing v. Hooper-McDonald, Inc., 293 Ala. 56, 300 So.2d 94 (1974). The court charged the jury on punitive damages.

The imposition of punitive damages in certain fraud cases is discretionary with the jury, acting with regard to the enormity of the wrong and the necessity of preventing similar wrongs. Cooper Chevrolet, Inc. v. Taliaferro, 439 So.2d 158 (Ala.Civ.App.1983). The imposition of punitive damages is left to the jury in such cases.

The case was tried on the basis of fraudulent misrepresentations as to the status of the road in question; the judge charged the jury on fraudulent misrepresentation and also charged the jury on nominal and punitive damages. Neither party objected to any of the above.

The jury returned a verdict for the plaintiffs in the amount of $7,000. There is sufficient evidence in view of the theory upon which the case was tried to support that verdict.

The judgment of the trial court is affirmed.

The Cooleys’ Rule 38, Alabama Rules of Civil Procedure, motion is denied.

AFFIRMED.

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


text:
    Annie Laurie CARITHERS v. Forrest Hood JAMES, as Governor of the State of Alabama, et al.
    Civ. 3985.
    Court of Civil Appeals of Alabama.
    Oct. 26, 1983.
    Julian L. McPhillips and Jim L. DeBarde-laben, Montgomery, for appellant.
    Charles A. Graddick, Atty. Gen., and Peggy Schmitz, Asst. Atty. Gen., for the State.
   BRADLEY, Judge.

This appeal is from a judgment of the Circuit Court of Montgomery County holding that a state employee could apply to the State Personnel Board for an extension of employment after age seventy after being wrongfully denied that opportunity.

Annie Laurie Carithers was sixty-nine years old and an employee of the State of Alabama Highway Department for seven years. She was due to retire on her seventieth birthday in October of 1981, unless her employment was extended by the State Personnel Board. § 36-27-16(a)(l)(c), Code 1975.

On August 9, 1979 Governor James of Alabama issued an executive order to all department heads and boards stating that a state employee could be continued in state employment past the age of seventy only if the public health of Alabama required it and the extension was approved by the finance director.

On or about August 1, 1981 Mrs. Carith-ers was apprised of the Governor’s order and, as a consequence, she did not apply for an extension of her employment. She retired on August 31, 1981.

In March of 1982 the Supreme Court of Alabama in Hawkins v. James, 411 So.2d 115 (Ala.1982), struck down Governor James’s executive order as an unconstitutional violation of the separation of powers clause of the state constitution.

On July 26, 1982 Mrs. Carithers filed a complaint in the Circuit Court of Montgomery County seeking reinstatement to her employment with back pay from August 31, 1981. She alleged that she was prevented from applying for continuation of employment beyond age seventy by Governor James’s order.

After an ore tenus hearing, the trial court, on November 12, ruled that Mrs. Carithers was wrongfully denied the opportunity to apply for an extension of employment beyond the age of seventy, and could now apply to the State Personnel Board for an extension of her employment. The court further held that the State Personnel Board, in considering plaintiff’s application for extension of employment beyond age seventy, should apply the Board’s criteria for making such determination as of the date she would have been able to apply for an employment extension, i.e. August 1981; and the trial court gave the Personnel Board sixty days within which to consider Mrs. Carithers’s application for continued employment. It also retained jurisdiction of the matter for thirty days after the Personnel Board made its decision on Mrs. Carithers’s application.

In compliance with the trial court’s order, Mrs. Carithers filed an application for extension with the State Personnel Board on December 1, 1982. The Board considered the application at its January 12, 1983 meeting and later informed Mrs. Carithers that her application was denied. Mrs. Car-ithers requested that the circuit court reconsider its November 12, 1982 order. This request was denied. She appeals.

The appellant argues here that she should not have been required to apply to the State Personnel Board for an extension of her employment in view of Governor James’s order and that the Personnel Board’s order was preordained because of the Highway Director’s biased refusal to recommend that she be continued as an employee beyond age seventy.

In support of her contention that she should not have been required to apply to the State Personnel Board for an extension of her employment, Mrs. Carithers says that the effect of Governor James’s order cannot be undone, as the trial court attempted to do in its November 12, 1982 order.

We fail to appreciate the efficacy of this argument for the reason that Hawkins v. James, 411 So.2d 115 (Ala.1982), held only that Governor James’s order was unconstitutional. Nothing else was decided by the supreme court. Moreover, that court implicitly recognized that section 36-27-16(a)(1)(c), Code 1975, must be followed by the employee who wishes to extend his or her employment beyond age seventy when it said that, “the employee still starts the process by making application and the final determination is still made by the personnel board ....”

The trial court, in its November 12, 1982 order, held that Mrs. Carithers could apply for an extension of employment beyond age seventy and that the Personnel Board should apply the Board’s usual criteria for extending such employment. The applicable criteria for extending employment beyond age seventy is (1) employee application, (2) evidence of physical and mental fitness, (3) recommendation of a medical review board, and (4) recommendation of the appointing authority, i.e., department head. § 36-27y-16(a)(l)(c), Code 1975, and Handbook for Employees of the State Personnel Department (8th ed. 1974).

Mrs. Carithers did apply to the Personnel Board for an extension of employment and the Personnel Board, after a hearing participated in by Mrs. Carithers and her attorney, denied her request. Furthermore, we assume that the Board applied the required criteria for making such determinations because no question has been raised suggesting otherwise.

Accordingly, we find that the trial court committed no error in holding that Mrs. Carithers had to apply to the Personnel Board for an extension of employment and be approved by the Board before she could be reemployed by the State Highway Department.

Mrs. Carithers’s next issue is that the refusal of the . State Highway Director and Mrs. Carithers’s immediate supervisor to recommend that her employment be extended beyond age seventy proves that the Personnel Board’s refusal to extend her employment was a result of bias and that its decision was preordained.

Section 36-27-16(a)(l)(c), Code 1975, and the Handbook for Employees require that the employee have the recommendation of his department head before the employee’s employment can be extended beyond age seventy. In the instant case the department head not only would not recommend that Mrs. Carithers be employed beyond age seventy but said why she should not have her employment extended. And, Mrs. Car-ithers introduced evidence showing why she should have her employment extended. The Board then decided that Mrs. Carith-ers’s employment not be extended based on the evidence presented to it. There is no evidence that any member of the Board knew Mrs. Carithers or had personal knowledge of her work record at the State Highway Department.

After a careful examination of the record, we cannot find that bias infected the Personnel Board’s decision not to recommend extension of Mrs. Carithers’s employment.

The judgment of the trial court is affirmed.

AFFIRMED.

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


author: WRIGHT, Presiding Judge. HOLMES, Judge

text:
    Deborah Kay May VICE v. Raymond B. MAY, Sr., and Mary Ruth May.
    Civ. 3696.
    Court of Civil Appeals of Alabama.
    Nov. 2, 1983.

      James Marks of Hewlett & Black, Muscle Shoals, for appellant.
    Donald E. Holt and Joe M. Patterson, Jr. of Holt, McKenzie, Holt & Patterson, Florence, for appellees.
   WRIGHT, Presiding Judge.

This is a child adoption case.

On September 9, 1976, Raymond B. May, Sr., and Mary Ruth May, the father and mother of Deborah Kay May Vice and grandparents of her minor daughter, Kristie Aileen May, petitioned for adoption of their granddaughter. Since April 1976 the child, who was born on January 28, 1975, had lived with the Mays while Deborah traveled with a carnival except for brief intervals.

The Mays’ petition alleged that the whereabouts of Deborah were, at that time, unknown and that she had, since the child’s birth, failed to contribute anything to her support and maintenance. The father was stated to be unknown.

A final decree of adoption was entered on October 6,1976. On May 12,1980, Deborah petitioned to have the adoption nullified. After a hearing her petition was denied.

She appeals here asserting that the trial court lacked jurisdiction to issue the decree of adoption and that neither her consent to the adoption nor her abandonment of the child was proved at trial. We agree.

The applicable adoption statute, § 26-10-3, Code of Alabama 1975, provides, as pertinent:

“No adoption of a minor child shall be permitted without the consent of his parents, but the consent of a parent who has abandoned the child, or who cannot be found, who is insane or otherwise incapacitated from giving such consent, or who has lost guardianship of the child, through divorce proceedings, or by the order of a juvenile court or court of like jurisdiction, may be dispensed with, and consent may be given by the guardian if there is one, or if there is no guardian, by the state department of pensions and security.”

Because adoption is strictly statutory and involves the curtailment of the fundamental rights of the natural parents, the adoption statute must be closely adhered to. Davis v. Turner, 55 Ala.App. 366, 337 So.2d 355, cert. denied, 337 So.2d 362 (Ala.1976). The consent of the parent or, in circumstances falling under § 26-10-3, the consent of the guardian or Department of Pensions and Security is jurisdictional. Where a required consent is never given the trial court never obtains jurisdiction to proceed to the paramount question of the child’s welfare. Davis, supra at 361.

We find insufficient evidence of abandonment to dispense with the mother’s consent to the adoption. For a parent to be deemed to have abandoned her child, within the purview of the adoption statute, it must appear that the parent has undertaken a course of conduct toward the child which implies a conscious disregard or indifference to parental obligations owed the child. Gillespie v. Bailey, 397 So.2d 130 (Ala.Civ.App.1980), cert. denied, 397 So.2d 133 (Ala.1981).

The evidence shows that Deborah supplied food and clothing for the child for the first year of its life and that, even after returning to her employment with the carnival, she sent money and toys to the Mays for the child’s use. Evidence is undisputed that she wrote and telephoned the Mays frequently, most often collect, and talked with her child. She visited with her parents and the child from time to time. She left with her parents the schedule and itinerary of the carnival with which she was employed. When presented with the proposal for adoption she pleaded that it not be done, that she needed time to straighten out her life. It is clear that Deborah expressed her intent to return to live with the Mays after the carnival season ended in November 1976, that she visited them in September 1976, and that she indeed returned to live with them in November. She had no knowledge of the adoption until she returned to her parents’ home in November, while notice of the petition was about to be first published. When informed by her father of the petition, she again responded with, “please don’t do this to me.” She was not personally served then with a copy of the petition. This evidence is contrary to the showing of a settled purpose by Deborah to forego all parental claims to the child. Schwaiger v. Headrick, 281 Ala. 392, 203 So.2d 114 (1967). There is a legal insufficiency of evidence to establish abandonment and thus to give jurisdiction to the court to proceed with the adoption in the absence of parental consent. Further we iterate that there was absent consent to the adoption by the Department of Pensions and Security, which is a requirement of the statute, even when abandonment is established. § 26-10-3, Code of Alabama 1975.

As the adoption decree was entered contrary to statute and without jurisdiction, the decree is void and subject to attack at any time. Ex parte Wilson Lumber Co., 410 So.2d 407 (Ala.1982). It is remarkable that even after the adoption, Deborah continued to visit in the home of her parents and with her daughter. On at least one occasion she carried her child away and kept her for several months until she notified her parents where she was and they took her back. It should be noted that Deborah has apparently rehabilitiated her life — is married and has another child. We observe that there is every reason for daughter, grandparents and granddaughter to maintain cordial relations and share custody. The grandparents are to be highly commended for their loving care of Kristie. However, adoption is the permanent termination of all legal parental rights and may not be accomplished without strict compliance with the statute.

For the reasons set out, the judgment of the probate court is reversed and set aside. That court is directed to enter its judgment setting aside its judgment of adoption in the matter of Kristie Aileen May, entered on October 6, 1976, as void.

REVERSED AND REMANDED WITH DIRECTION.

BRADLEY and HOLMES, JJ., concur specially.

HOLMES, Judge

(concurring specially).

I concur in the result reached by the majority. However, I reach the result by a somewhat different analysis.

The pertinent part of the applicable statute, section 26-10-3, Alabama Code (1975), is as follows:

“No adoption of a minor child shall be permitted without the consent of his parents, but the consent of a parent who has abandoned the child [or] who cannot be found ... may be dispensed with, and consent may be given by the guardian, if there be one, or if there is no guardian, by the state department of pensions and security.”

In the instant case it is clear that the mother did not give her consent, and that there was no guardian. It is also clear that the Department of Pensions and Security (DPS) did not give its consent. In other words, no consent to the adoption was obtained from any party named in the statute as eligible to give its consent.

Assuming without the need of so deciding that the adopting parents proved the abandonment of the child by the mother, then in that event the consent of DPS was necessary under the statute.

The Supreme Court of Alabama in Lankford v. Hollingsworth, 283 Ala. 559, 219 So.2d 387 (1969), discussed the above statute, stating as follows:

“We construe this statute to mean that the consent of the Department of Pensions and Security (formerly Public Welfare) is required only when the custody of the child has been awarded to that agency, or where there is no parent whose consent is required and the child has no guardian.”

Id. at 561, 219 So.2d at 388. Accord In re. Roberts, 349 So.2d 1170 (Ala.Civ.App.1977).

In the instant case if abandonment was established, then “there is no parent whose consent is required” within the meaning of the above cases, and the consent of DPS was made jurisdictional. Since it is clear that DPS did not consent, then the trial court was without power to issue the adoption order. In re Roberts, 349 So.2d 1170, 1172 (Ala.Civ.App.1977). Following this line of reasoning, I find it unnecessary to decide the abandonment issue decided by the majority opinion.

Turning to another matter, I would be remiss if I did not point out the following statement in the majority opinion which concerns me: “As the adoption decree was entered contrary to statute and without jurisdiction, the decree is void and subject to attack at any time.” (Emphasis added.) This statement fails to take into account the possible effect of section. 26-10-5(c), Alabama Code (1975).

A different result might have been reached in the instant case if five years had passed from the date of entry of the order here at issue. While I do not specifically decide the applicability or import of the statute, it occurs to me that section 26-10-5(c) might be construed to put a five-year limit on actions such as the instant one to set aside adoption decrees.


author: WRIGHT, Presiding Judge.

text:
    Mary Anne MAY v. Stuart Trimble MAY, III.
    Civ. 3833.
    Court of Civil Appeals of Alabama.
    Nov. 2, 1983.

      Stephen R. Arnold of Durward & Arnold, Birmingham, for appellant.
    John L. Capell, III of Capell, Howard, Knabe & Cobbs, Montgomery, for appellee.
   WRIGHT, Presiding Judge.

This is an appeal of the modification of a divorce decree.

Mary Anne May and Stuart Trimble May, III, were divorced on November 5, 1979. On September 16, 1982, Mr. May filed a petition to modify the decree, requesting a termination of alimony. After an ore tenus hearing, the trial court reduced alimony from $2,000 per month to $1,500 per month, also reducing the amount of insurance that Mr. May was required to keep.

On February 2,1983 Mrs. May moved for a new trial. The motion was denied, and she appeals here.

The sole issue on appeal is whether the trial court abused its discretion by reducing the amount of alimony and insurance. We think not.

A trial court may modify an original award of alimony upon sufficient proof of changed circumstances. Sanders v. Sanders, 342 So.2d 380 (Ala.Civ.App.1977). These changes must, however, be material. Taylor v. Taylor, 418 So.2d 148 (Ala.Civ.App.1982). Where modification is granted after an ore tenus hearing, it is presumed correct. Brothers v. Vickers, 406 So.2d 955 (Ala.Civ.App.1981). In such case, modification is within the sound discretion of the trial court, and the exercise of that discretion will not be disturbed on appeal unless, after reviewing the evidence, we find such an abuse of discretion as to make the judgment plainly and palpably wrong. Roberts v. Roberts, 395 So.2d 1035 (Ala.Civ.App.1981).

Many factors may be considered in an alimony modification proceeding including the wife’s financial status and needs, the needs of dependent children, and the husband’s financial ability to respond to those needs. Parrish v. Parrish, 365 So.2d 1237 (Ala.Civ.App.1979). The record before us reveals that the trial court considered the husband’s increased expenses and subsequent remarriage as factors supporting modification. Johnson v. Johnson, 277 Ala. 126, 167 So.2d 688 (1964); Blackwell v. Blackwell, 399 So.2d 313 (Ala.Civ.App.1981). Also considered ’ were the wife’s employment since the divorce, her improved financial condition (resulting from interest income and the elimination of mortgage indebtedness) and her recently acquired interest in property, including a townhouse and farm. Jeffcoat v. Jeffcoat, 423 So.2d 888 (Ala.Civ.App.1982); Lloyd v. Lloyd, 52 Ala.App. 374, 292 So.2d 668 (1974); and Dean v. Dean, 51 Ala.App. 249, 284 So.2d 276 (1973). These factors having been properly considered we find no abuse of discretion.

The parties’ requests for attorney fees on appeal are denied.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


text:
    ALABAMA DEPARTMENT OF PENSIONS AND SECURITY v. Ronald Gene JOHNS and Kathy Johns.
    Civ. 3912.
    Court of Civil Appeals of Alabama.
    Nov. 2, 1983.
    Roy W. Williams, Jr. and Stephen K. Griffith, Cullman, for appellants.
    No brief for appellee.
   EDWARD N. SCRUGGS, Retired Circuit Judge.

This is an adoption case.

On December 14, 1982, the juvenile court terminated the parental rights of the mother of the child, the father being unknown, and the child’s legal guardianship was placed with the Department of Pensions and Security (DPS). Mrs. Johns is the maternal aunt of the child and she and her husband (the Johnses) filed their petition in the probate court on December 29, 1982, to adopt the child. Those proceedings were transferred to the juvenile court upon the Johnses’ motion in March 1983. In its report DPS objected to and did not consent to the child’s adoption by the Johnses. The consent of DPS is a jurisdictional requirement in this case unless their withholding of it was arbitrary or unreasonable. Matter of Roberts, 349 So.2d 1170 (Ala.Civ.App.1977). The report of DPS detailed the reasons underlying their position. The Johnses amended their petition so as to aver that the action of DPS was unreasonable or arbitrary. The juvenile court found that DPS arbitrarily withheld its adoption consent and an interlocutory order of adoption was entered pursuant to section 26-10-4 of the Alabama Code of 1975. DPS appealed, but an appeal is not authorized from such an interlocutory order. Davis v. Turner, 55 Ala.App. 366, 315 So.2d 602 (1975). However, consistent with modern appellate judicial philosophy, we opt to treat this appeal as being a petition for a writ of mandamus in order to reach the issues of the ease upon the merits. For example, see Citicorp Person to Person Financial Center, Inc. v. Sanderson, 421 So.2d 1293 (Ala.Civ.App.1982).

A question of fact was presented to the juvenile court as to whether the consent of DPS was arbitrarily or unreasonably withheld. Sanders v. Department of Pensions and Security, 406 So.2d 948 (Ala.Civ.App.1981); State Department of Pensions and Security v. Whitney, 359 So.2d 810 (Ala.Civ.App.1978); Matter of Roberts, 349 So.2d 1170 (Ala.Civ.App.1977).

The record before us does not reveal that the Johnses met that burden for no evidence was presented by the Johnses upon that controversy. The only evidence which is included in the record on appeal is the report of DPS which contained no indication of an arbitrary decision on their part.

In the posture of the matter as disclosed by the record filed with us, it is necessary to return this matter to the juvenile court where the Johnses shall have the burden of proof that DPS acted arbitrarily or unreasonably in withholding its consent and where DPS shall have the opportunity to refute the allegations and proof in that regard. Matter of Roberts, 349 So.2d 1170 (Ala.Civ.App.1977). Evidently, the trial court has been previously involved for approximately two years with this child’s custody and the juvenile court may consider the history of the case along with the stipulations, exhibits, etc., as presented at the required hearing in reaching its decision upon the matter. Witcher v. Motley, 417 So.2d 208 (Ala.Civ.App.1982). As to what constitutes an arbitrary or unreasonable denial of consent to an adoption by DPS, the juvenile court shall consider State Department of Pensions and Security v. Whitney, 359 So.2d 810 (Ala.Civ.App.1978), insofar as it may be applicable. Nothing contained herein shall be deemed as any intimation by this court as to what the final determination of the juvenile court should be upon this factual issue.

Accordingly, a writ of mandamus is provisionally granted subject to the matter at bar being disposed of by the juvenile court as outlined above. Pending those proceedings in the juvenile court, the interlocutory adoption order is vacated. Matter of Roberts, 349 So.2d 1170 (Ala.Civ.App.1977).

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 and this opinion is hereby adopted as that of the court.

WRIT PROVISIONALLY GRANTED.

All the Judges concur.


text:
    Linda Ann EVANS v. Roy Ted EVANS.
    Civ. 3917.
    Court of Civil Appeals of Alabama.
    Nov. 2, 1983.

      John T. Alley, Jr. of Jones, Murray, Stewart & Yarbrough, Montgomery, for appellant.
    Earl Gillian, Sr., Montgomery, for appel-lee.
   HOLMES, Judge.

The trial court refused to set aside a divorce decree obtained by default. The wife appeals and we reverse.

We find that the default judgment was entered without the three-day notice period required under A.R.Civ.P. rule 55(b)(2) and, further, that the learned trial judge abused his discretion when he refused to grant appellant’s timely rule 55(c) motion to set aside the judgment.

In reviewing this case we rely upon the following statement of facts set out in the wife’s brief and adopted by the husband: On April 4 (all dates are 1988), the husband filed a petition for divorce in Montgomery County Circuit Court. The petition was served on the wife April 5. On May 2, the wife responded to the petition by a letter to the circuit court which stated as follows:

“I am answering the summons; in the petition for divorce filed by Roy T. Evans, Jr. He is represented by Earl Gillian. I am at present trying to retain a legal counselor.
“I do intend to respond to the petition accordingly, honestly, and as soon as possible.”

On May 20, on an inquiry from the trial court register, the circuit judge determined that the letter did not constitute a formal answer. Accordingly, on May 25, the husband filed an application, affidavit, and entry of default and default judgment. The deputy register entered a default judgment that same day. On May 30, the circuit judge entered a decree of divorce by default in which custody of the minor children and division of the couple’s real and personal property was decided.

On June 9, after having secured counsel, the wife filed a motion to set aside the default judgment. After the trial court denied the wife’s motion, she appealed to this court.

For either of two reasons, we find that the trial judge erred in refusing to set aside the default judgment. The first reason is that the wife was not “served with written notice of the application for judgment at least three days prior to the hearing on such application” as required under A.R.Civ.P. rule 55(b)(2). We do not express any opinion as to whether the trial court correctly determined that the wife’s letter did not qualify as a formal answer under rule 8. However, the trial court did err in not at least treating the letter as an appearance for the purpose of rule 55(b)(2). In Cockrell v. World’s Finest Chocolate Co., 349 So.2d 1117 (Ala.1977), the defendant submitted a document to that court which bore the style and number of the case and stated that defendant’s attorney would be replying in a few days. The Cockrell court held that the document constituted an appearance and entitled defendant to the three-day notice period set out in rule 55(b)(2). The May 2 letter from the wife in the instant case cannot be distinguished from the Cockrell letter. As required by Cockrell, see id. at 1120, the wife’s letter qualifies as “some submission or presentation to the court by which a party shows his intention to submit himself to the jurisdiction of the court,” id., as it states specifically that the wife is answering the summons and that she is trying to obtain legal counsel to respond “as soon as possible.” Under these circumstances it was incumbent upon the husband to give his wife at least three days written notice of his application for the default judgment. As the default judgment was obviously entered without such notice, it should have been set aside.

The second reason for holding in favor of the wife is that, regardless of the label put on the May 2 letter, the wife has at all times demonstrated due diligence in her defense of this action, e.g., responding to the summons before the expiration of thirty days and then securing counsel and moving to set aside the default judgment within two weeks after it was entered. Judgments by default are generally disfavored because they deprive the parties of a resolution of the matter on the merits. See, e.g., Hen House, Inc. v. Robertson, 410 So.2d 42 (Ala.1982). We think that especially in the divorce context, a court should be particularly reluctant to uphold a default judgment (and thereby deprive a litigant of his day in court) because it means that such important issues as child custody, alimony, and division of property will be summarily resolved. Under the instant facts, we find an abuse of discretion in the trial court’s refusal to set aside the default judgment on the wife’s motion. The judgment below is due to be reversed and the ease remanded to the trial court for further proceedings not inconsistent with this opinion.

REVERSED AND REMANDED.

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


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    Bonnie Hancock ARGO v. Deanne GREENE.
    Civ. 3779.
    Court of Civil Appeals of Alabama.
    Nov. 9, 1983.

      William C. Gullahorn, Jr. of Gullahorn & Hare, Albertville, for appellant.
    No brief for appellee.
   BRADLEY, Judge.

This is a detinue action.

Bonnie Hancock Argo filed an action in detinue against her son, John Greene, and against her daughter-in-law, Deanne Greene, to recover certain personal property from them or its alternate value. Deanne Greene filed an answer denying the allegations of the complaint but John Greene failed to do so.

After a hearing before the court without a jury, the court found in favor of defendant Deanne Greene and against Bonnie Argo. The court entered a default judgment against John Greene for $4,689.88 as the alternate value of the property, the recovery of which was being sought by the plaintiff.

Plaintiff filed a motion to alter or amend the judgment or, in the alternative, for a new trial. The motion essentially raised a new claim against defendant Deanne Greene. The new claim sought recovery of the $2,500 or the property given as security for the $2,500 loan to plaintiff’s son. This motion was denied and the plaintiff appeals.

Plaintiff contends on appeal that the trial court erred in not rendering judgment for her and against Deanne Greene, for the property sued for, or, at the least, a judgment for the money “loaned” with interest.

To begin, the plaintiff filed an action in detinue against John Greene and Deanne Greene to recover certain property she claimed belonged to her or its alternate value. The proof offered by plaintiff in support of her claim was directed solely to the fact that she bought the property from her son and daughter-in-law and paid for it and now she wanted to recover it or its alternate value. She at no time suggested that she had loaned the money to her son and daughter-in-law. As a matter of fact, she specifically said it was not a loan but a sale.

Accordingly, the case will be reviewed on appeal on the same theory on which it was tried below, i.e. plaintiff was trying to recover property from her son and daughter-in-law that they had sold to her. Shoemaker v. Money, 409 So.2d 847 (Ala.Civ.App.1981).

Notwithstanding our observance of the above stated principle, a claim now by plaintiff that the property was given as security for a loan to her son would avail her nothing. There is evidence in the record to support the trial court’s judgment in favor of Deanne Greene even on this new theory espoused by plaintiff.

The evidence in the record tends to show that John Greene went to his mother and told her he wanted to borrow $2,500 from her to pay some gambling debts. Plaintiff testified that she and her son agreed that she would buy certain furniture and other personal property from him for $2,500. A list of the items to be sold was prepared and given to the plaintiff.

The plaintiff went to a bank and borrowed $2,500. Collateral for this loan was property belonging to the plaintiff. None of the property to be bought from her son and daughter-in-law was listed as a part of the collateral for the loan from the bank. A cashier’s check for $2,500, made payable to the plaintiff and John Greene, was given to plaintiff who, in turn, gave it to John Greene. Both plaintiff and John Greene endorsed the check. The name of Deanne Greene also appears on the back of the check as an endorsement. She said that her husband was at work and could not go to the bank to cash it, and he asked Deanne to cash the check for him. Apparently the bank required Deanne to endorse the check before it would cash it, since she was not listed on the face of the check as a payee.

After a few months plaintiff attempted but failed to obtain possession of the furniture. She then filed the action to recover the personal property she contends she bought from her son and his wife, Deanne Greene. Since the filing of the detinue action, John Greene and Deanne have been divorced. Deanne has in her possession most of the items that were purportedly sold to the plaintiff.

Deanne Greene testified that the list of furniture and other personal property items was prepared by her husband, who said that his mother wanted the list to take to the bank. Deanne stated that at the time she signed the list there were no other names or other writing on the list.

Deanne testified that she did not sell the listed items to the plaintiff and that she did not give the furniture to plaintiff as security for a loan to her husband. She said that the items were not paid for at the time she made the list and payment was still being made on them. She also said that she and her husband had filed for bankruptcy and had listed these items on their bankruptcy petition.

Where evidence relating to the ownership and right to possession of personal property in a detinue action is in conflict, the resolution of the conflict is for the jury. Balls v. Crump, 256 Ala. 512, 56 So.2d 108 (1952). As the recitation of the evidence above shows, the plaintiff's ownership and right to possession of the items of personal property in question is in sharp conflict. The trial court, sitting without a jury, resolved that conflict in favor of the defendant Deanne Greene. Based on the evidence we can find no error in its decision.

AFFIRMED.

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


text:
    Cooper Woodrow THOMAS v. Joseph O’Neal KULAKOWSKI.
    Civ. 3808.
    Court of Civil Appeals of Alabama.
    Nov. 9, 1983.

      William H. Harris of Harris & Molloy, Mobile, for appellant.
    Daniel A. Pike of Sintz, Pike, Campbell & Duke, Mobile, for appellee.
   HOLMES, Judge.

The plaintiff sued the defendant for malicious prosecution. The defendant counterclaimed against the plaintiff for conversion. The jury returned a verdict for defendant on plaintiff’s malicious prosecution claim and in favor of defendant on his counterclaim and awarded damages of $2,400.

The plaintiff, through able counsel, appeals contending the trial court erred in certain evidentiary rulings and in refusing to give certain requested jury instructions. We find that the trial court did not err to reversal and affirm.

This court does not find it necessary nor prudent to set out in detail the facts. We will point out only those facts necessary to a resolution of plaintiff’s contentions.

I

During the examination in chief of the plaintiff the following occurred:

“Q. All right, Mr. Thomas, one thing I neglected to ask you yesterday with regard to your claim for damages in this lawsuit, what damages are you seeking in this lawsuit?
“MR. PIKE: Object, Your Honor.
“THE COURT: I sustain the objection to it.
“MR. HARRIS: Your Honor, I am offering to prove his general damages, not any special damages.
“THE WITNESS: Criminal.
“THE COURT: Just a minute, please. Don’t answer. I sustain the objection for reasons we have already discussed.

It is plaintiff’s position, that the trial court erred in sustaining the objection as indicated above. The plaintiff specifically states that the question should have been allowed to “prove his general damages.”

It is the law in Alabama that where the verdict and judgment absolve the defendant from liability as in the instant case, a reversal cannot be based on the sustaining of an objection to evidence which only goes to the extent of damage allegedly suffered by the plaintiff even if such action is error. Coker v. Ryder Truck Lines, 287 Ala. 150, 249 So.2d 810 (1971); Sexton v. Johnson, 278 Ala. 384, 178 So.2d 541 (1965); Taylor v. Thompson, 271 Ala. 18, 122 So.2d 277 (1960). Therefore, the action of the trial court in sustaining the objection in the case at bar cannot be made the basis for reversal. Hence, no error.

II

The plaintiff next urges error, contending that the trial court allowed certain hearsay testimony.

We note that plaintiff cites to us -no authority in regard to this alleged error. See Rule 28(a)(5), A.R.A.P. Be that as it may, we find no error requiring reversal in the trial court’s actions.

The first testimony objected to as hearsay and urged as error was that of a building inspector. The building inspector testified to certain aspects of conversation he had with the plaintiff’s wife.

After a careful review of the entire record, this court fails to see how the testimony was prejudicial error requiring reversal. Rule 45, A.R.A.P. Put another way, without so finding, the trial court may have erred in allowing the objection to testimony but this court fails to see how the error complained of has injuriously affected the substantial right of the complaining party.

The second and final testimony objected to as hearsay was the testimony of a neighbor of the parties. The neighbor was asked, “Did you ever have occasion to have a conversation with Mrs. Thomas, who lives at 258 North Conception Street relative to allowing Mrs. Smith to come across your parking lot to make repairs to her home?” The question was objected to, the objection overruled and the witness answered, “Yes, sir.” This does not appear to be hearsay testimony. The witness merely testified that a conversation took place, not the contents of the conversation.

Even if it had been error to allow the question to be answered, any harm done would have been cured by later testimony on the same subject that was allowed into evidence without objection. Madison Highlands Development Co. v. Hall, 283 Ala. 333, 216 So.2d 724 (1968).

III

The plaintiff’s final argument is that the trial court erred in refusing to give certain requested charges.

The two requested instructions read:

“It is a complete defense to a cause of action for conversion if the facts show that the owner of property abandoned his property before another took possession of it or exercised dominion over it.”
“An owner of property who finds property left or placed thereon may in good faith, before giving it up, require reasonable proof of ownership from any person claiming it and such a request is not a conversion of the property claimed.”

Both of the instant charges merely state abstract propositions of law without instructing the jury on its effect upon issues in the case and such charges may be refused without error. Smith v. Springsteen, 385 So.2d 56 (Ala.Civ.App.1980); American Fire & Casualty Insurance Co., Inc. v. Bryan, 379 So.2d 605 (Ala.Civ.App.1980).

The defendant, through able counsel, contends that due to certain defects in plaintiff’s brief this court should not consider the merits of plaintiff’s appeal. While some of defendant’s contentions may have some application, it is the policy of this court to reach the merits whenever possible. In this instance, as seen from the above, we do deem it appropriate to reach the dispositive issues.

The defendant’s Rule 38 A.R.A.P. motion is denied.

This case is due to be affirmed.

AFFIRMED.

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


text:
    MARION HOMES OF BEAR CREEK, Alabama, A DIVISION OF TIDWELL INDUSTRIES, INC. v. Elvis DULANEY.
    Civ. 3818.
    Court of Civil Appeals of Alabama.
    Nov. 9, 1983.
    Samuel L. Masdon of Manasco & Masdon, Haleyville, for appellant.
    C. Harry Green, Hamilton, for appellee.
   EDWARD N. SCRUGGS, Retired Circuit Judge.

This is a workmen’s compensation case.

Much of the evidence conflicted but, generally, we will summarize only that testimony which tends to support the findings of the trial court because of the rule of review which applies to this case.

While employed by Marion Homes, Mr. Dulaney received an on the job injury in October 1980. In accordance with his employer’s authorization, he went to the company doctor who operated upon him to correct a hernia. During the course of treatment, the employee developed a dislike for that company physician. A few weeks after the accident, he resumed the same employment and experienced few, if any, problems in connection with the hernia.

On February 17,1981, he fell while working and experienced pain and numbness in his legs. A co-worker testified that, immediately after the accident, Mr. Dulaney informed him that he had fallen and hurt his back. Mr. Dulaney swore that he told his foreman and the company’s industrial nurse of his fall on February 17. Apparently everyone, including Mr. Dulaney, assumed that he had reinjured his hernia. When it was suggested by the nurse that he see the company doctor, he refused to do so because of his dissatisfaction with that physician. She instructed him to go to his family doctor, but he decided against seeking medical attention on that day. However, the next morning his pain was so severe that he had to remain in bed and he swore that he was again authorized by the nurse to see his family doctor, who was Dr. Halcomb. The employee saw Dr. Halcomb. He was X-rayed and hospitalized for fifteen days for a back injury. The treatment consisted primarily of traction. The employer is self-insured as to workmen’s compensation. The employer paid for that hospitalization and purchased for Mr. Dulaney, at the suggestion of Dr. Halcomb, the necessary apparatus which was used by him for six hours each day at home after his discharge from the hospital. After home treatment for six days, Mr. Dulaney was admitted to a Tuscaloosa hospital and he was referred by Dr. Halcomb to Dr. Fernandez, a neurosurgeon. He was again placed in traction and, upon his release from the Tuscaloosa hospital, was directed to resume the home use of traction.

At the first ore terns trial in February 1982, the employee testified that, at that time, he could not sleep, that he experienced numbness in his left leg and lower back at all times, that his wife must massage his legs three or four times every night, that he suffers constant lower back pain which is often severe, that he cannot lift anything which weighs over twenty-five to forty pounds without experiencing severe pain in his back, that he cannot participate in softball, basketball or bird hunting because of his back and that, except for light work, he could not physically do any of the many jobs which he had previously held. His job history consisted entirely of physical labor. He attended school to the tenth or eleventh grade and later passed his GED test, but he has no special skills or technical training although he has sixty hours of junior college credits which he earned through the G.I. bill.

Dr. Halcomb testified that Mr. Dulaney’s back pain was consistent with a fall at work. The diagnosis was early herniation of the lumbar disc, which probably renders it prone to further injury. All of Mr. Dula-ney’s physical problems relate back to the fall he suffered at work. Mr. Dulaney can do no heavy lifting. The doctor gave no estimate as to the percent of disability suffered by his patient.

On February 18,1982, the company nurse knew that Mr. Dulaney was at a hospital concerning a back injury but she declined to authorize his hospitalization and turned the matter over to the company’s, claims manager of their self-insurance program. Mr. Dulaney testified that his hospitalization was authorized by the claims manager. Later, the claims manager wrote to a physician that Mr. Dulaney “did not like our company doctor and we allowed him to obtain treatment from his family doctor.”

At the time of the entry of a judgment in his case, Mr. Dulaney had obtained new employment which was much less physically demanding than his job with Marion Homes. His new wages equaled or exceeded his earnings at Marion Homes.

The learned trial court determined that, as a result of the accident, Mr. Dula-ney sustained a fifty percent disability to the body as a whole and that his permanent partial loss of ability to earn amounted to fifty percent. The first appellate issue is that the evidence did not support that finding by the circuit court. The rule of review in a workmen’s compensation case is that the factfinding made by the trial court must be upheld if it is supported by any legal evidence, for we do not consider the weight of the evidence but only whether the required evidence existed. Goodyear Tire and Rubber Co. v. Greene, 426 So.2d 851 (Ala.Civ.App.1983). The necessary evidence was present in this case to uphold the trial court’s findings. Although Dr. Fernandez deposed that Mr. Dulaney’s permanent partial disability was only five percent, a consideration of that neurosurgeon’s opinion along with all of this other evidence upholds the trial court’s judgment. Orkin Exterminating Co., Inc. v. Williams, 389 So.2d 935 (Ala.Civ.App.1980). His entire employment history prior to his last injury involved hard manual labor in each job and the testimony as to his physical condition indicates a diminution of his capacity to earn and that evidence was adequate to overcome any presumption concerning the post-injury wages which he actually received at the time of the final judgment. Federal Mogul Corp. v. Moses, 341 So.2d 162 (Ala.Civ.App.1976).

The employer’s other issue is directed towards the employee’s use of physicians, Drs. Halcomb and Fernandez, who were not selected by the employer. At the hearing held upon Marion Homes’ motion as to that problem, the evidence conflicted. The trial court found against the employer on that matter and the evidence as previously detailed which was favorable to that ruling was adequately supportive of the holdings of the trial court. This question is both factually and legally foreclosed by Sunnyland Foods, Inc. v. Catrett, 395 So.2d 1005 (Ala.Civ.App.1980), cert. denied, 395 So.2d 1010 (Ala.1981), where it was held as follows:

“The statute [§ 25-5-77, Ala.Code (1975)] clearly gives the employer at least the first three selections of physicians or of surgeons.
“The evidence shows that Catrett was referred by the employer to Dr. Haley, an orthopedic surgeon, who performed disc surgery on Catrett. Prior to being released by Dr. Haley, Catrett testified that during a conversation with Arthur Jessee, an adjuster for the insurer, Jessee told him that he could go to any doctor he wished to consult. Thereafter, Catrett selected Dr. Serrato as his doctor.
“By authorizing Catrett to seek treatment from a doctor of his choice, Sunny-land effectively transferred its authority to choose the doctor to Catrett; and Ca-trett stated that he was completely satisfied with Dr. Serrato. Thus, Sunnyland cannot contend that Catrett unreasonably refused treatment from doctors later suggested by it when Catrett was being treated by a doctor with whom he was fully satisfied after being authorized by Sunnyland to choose his own physician.
“Since Catrett had authority to use Dr. Serrato, did receive treatment from him, and was satisfied with that treatment, it cannot be said that Catrett refused medical treatment. Hence, § 25-5-77(b) would have no application.
“Since Catrett was never dissatisfied with Dr. Serrato and never informed Sunnyland of such, Sunnyland never had a right to designate another doctor. Therefore, we hold that Catrett may not be forced to leave the care of a doctor with whom he is satisfied even though the employer, i.e. Sunnyland, might have become dissatisfied with that particular doctor.” (Footnote omitted.)

395 So.2d at 1008-9.

When Mr. Dulaney was authorized by his employer to obtain treatment from his family physician instead of the company doctor, that authorization, unless otherwise specifically restricted, would necessarily extend to all injuries received by the employee resulting from the February 17 accident, including injuries to his back, and the authority which was granted did not limit medical treatment only and exclusively as to a hernia injury, which was a misdiagnosis or erroneous assumption which was initially made by both the employee and the employer.

We affirm.

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

AFFIRMED.

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

BRADLEY, J., not sitting.