author: DAN M. LEE, Justice,

text:
    Robert Joseph BARHAM v. KLUMB FOREST PRODUCTS CENTER, INC. and Home Insurance Company.
    No. 54316.
    Supreme Court of Mississippi.
    Aug. 15, 1984.
    Crockett Lindsey, Lindsey & Wood, Gulf-port, for appellant.
    Kenneth G. Perry, Jim Mixson, Shell, Buford, Bufkin, Callicutt & Perry, Jackson, for appellee.
    Before ROY NOBLE LEE, P.J., and DAN M. LEE and PRATHER, JJ.
   DAN M. LEE, Justice,

for the Court:

This is an appeal from an order of the Circuit Court of Harrison County affirming an order of the Workmen’s Compensation Commission dated June 30, 1981. The order of the Workmen’s Compensation Commission affirmed an order of the Administrative Law Judge which granted the claimant, Robert Joseph Barham, temporary total disability from October 1, 1979 through October 9, 1979. Feeling aggrieved by the failure to be awarded any permanent partial disability benefits, Barham now brings this appeal and assigns as error the following:

That the Administrative Judge and Commission erred in finding that Claimant reached maximum medical recovery on October 9, 1979, and that subsequent to October 9, 1979, the Claimant did not suffer any job-related disability or loss of wage-earning capacity, and that the Claimant’s present disability is solely the result of his pre-existing underlying disease process.

Robert Joseph Barham is a 53-year old manual laborer. For approximately ten (10) years prior to October 1, 1979, he had worked for the Klumb Lumber Company. On that date he arrived at work at 7:30 a.m. feeling good. He began picking up metal straps lying around the lumber yard at that time. These are light metal bands used to hold stacks of lumber together. At approximately 9:00 a.m. Barham was instructed to restack a group of 4x4x8 cedar posts. After Barham had been stacking lumber for approximately one-half hour he got a pain in his chest. He stopped work and went to the restroom then came back to stack lumber. At that point the pain increased and was accompanied by a burning sensation in his chest and left arm. He went to the office where he saw his supervisor, Pat Ryan. Ryan told him to rest. The pain worsened and Ryan instructed Barham to go to the hospital. Instead of driving directly to the hospital, he drove to his home a mile and one-half away and had his wife take him to their family physician, Dr. Quigley. Dr. Quigley performed some tests and called for an ambulance to take Barham to the hospital. Barham was admitted to the intensive care unit. He stayed in the hospital approximately a week.

Barham testified that he had not been feeling well since he left the hospital. He has trouble breathing and tires easily. He is unable to walk very far and although he attempted to return to work, he was unable to perform the tasks assigned to him and was laid off.

Barham stated that he did not have any of the forementioned physical ailments or limitations prior to October 1, 1979 when he became ill at work. Over the last twenty (20) years he has had a problem with fainting but this has never occurred at work. Barham’s supervisors, Pat Ryan and Lowery Anderson, corroborated his testimony that he had never been under any physical limitation. Ryan described Barham as “an extremely good employee” and stated he would hire him again if he were able to do the work. Anderson referred to Barham as “very reliable” and testified that he wished all of his workers were as faithful and reliable.

Dr. Hugo Nievas, a cardiologist, testified by way of deposition. He performed a stress test on Barham on November 14, 1979. Dr. Nievas stated that Barham had no history of heart problems. He diagnosed Barham as having an acute coronary insufficiency. He stated this was closer to a heart attack than mere ischemia alone. The doctor did state though that Barham had not had a heart attack and that there was no permanent damage indicated by a cardiac enzyme test. All changes as a result of a coronary insufficiency are reversible according to Dr. Nievas.

Dr. Nievas further testified that there was a causal connection between Barham’s work and his illness on October 1, 1979. Dr. Nievas said that Barham had a coronary disease and that exertion would cause an imbalance in his oxygen supply. He further stated that Barham’s condition may eventually produce a heart attack and that Barham should perform no strenuous physical activity. In Dr. Nievas’ opinion Bar-ham may eventually require a by-pass.

Dr. Nievas concluded that it is possible that Barham had coronary artery disease before October 1, 1979 but that he had not had a heart attack on that date. He again stated that there was no permanent damage to Barham’s heart. In Nievas’ opinion Barham’s employment had nothing to do with his present disability. In his words, Barham had fully recovered from acute coronary insufficiency by the time he left the hospital on October 9, 1979. Nonetheless, in his opinion, Barham had physical limitations as a result of the underlying coronary disease.

Edna Irene Barham, the claimant’s wife, testified that the morning of October 1, 1979 when her husband left for work he was feeling good. When he came home from work and told her that he had been told to go to the hospital, he was hot, sweaty and “about to collapse.” She testified that now her husband tires easily and is unable to even mow the family lawn. She stated that he had never had these problems before the October 1, 1979 incident at work.

Barham argues that the administrative law judge and Workmen’s Compensation Commission erred in finding that he had reached maximum medical recovery on October 9,1979, the day he was released from the hospital. He also argues that the findings of fact that he did not suffer any job-related disability or loss of wage earning capacity and that his present disability is solely the result of pre-existing underlying disease were in error. In reviewing questions of fact the standard of review this Court has consistently applied is that where there is substantial evidence to support the order of the Workmen’s Compensation Commission, this Court will not disturb its findings of fact. Mississippi Research Development Center v. Dependants of Shults, 287 So.2d 273 (Miss.1973); Wiggins v. Knox Glass, Inc., 219 So.2d 154 (Miss.1969); Merchants Co. v. Moore, 197 So.2d 791 (Miss.1967).

The central issue is whether the facts of this case bring it within the rule of Rathborne, Hair and Ridgeway Box Co. v. Green, 237 Miss. 588, 115 So.2d 674 (1959). In that case the claimant had suffered an abdominal injury at work. Upon a worsening of his pain, surgery was performed. During surgery it was determined that his spleen was diseased. His physicians testified that the surgery and the injury at work temporarily aggravated the disease. They were uniformly of the opinion that after the claimant’s recovery from surgery any further disability was a product of the disease, and not the work-related injury. In stating the rule to be applied in such cases, Justice Gillespie wrote for the Court:

The rule in this State is that when a pre-existing disease or infirmity of an employee is aggravated, lighted up, or accelerated by a work-connected injury, or if the injury combines with the disease or infirmity to produce disability, the resulting disability is compensable. A corollary to the rule just stated is that when the effects of the injury have subsided, and the injury no longer combines with the disease or infirmity to produce disability, any subsequent disability attributable solely to the disease or infirmity is not compensable.

237 Miss. at 594, 115 So.2d at 676.

The rule in Rathborne was reaffirmed in M.T. Reed Construction Co., et al v. Garrett, 249 Miss. 892, 164 So.2d 476 (1964). However, the Court in that case refused to apply the Rathborne rule. The claimant was a carpenter who experienced pains in his chest and arms. He was diagnosed by a cardiologist who determined that he had arteriosclerotic heart disease, and angina pectoris and coronary artery insufficiency. He stated that there had been no heart attack. Opposing medical views were presented by two specialists who testified that in their opinion the claimant had both coronary artery disease and a healed heart attack which was incurred when the claimant became ill at work. The cardiologist was of the opinion that the claimant’s coronary insufficiency had been aggravated by his work but that the aggravation had completely subsided. The Court held that the overwhelming weight of the evidence was against this opinion. The testimony of the other specialists, indefinitiveness of laboratory and other tests, and the fact of functional disability after the injury where none had existed before although the coronary artery disease had been pre-existing, were all factors which contributed to this holding. The Court then modified the Rath-borne rule by adding that where there is only slight evidence of a temporary aggravation, and the great weight of the evidence indicates a permanent aggravation of a pre-existing disease the Rathborne rule does not apply.

In Youngblood v. Ralph M. Parsons Co., 260 So.2d 188 (Miss.1972), this Court again refused to apply the Rathborne rule. Rarely do the facts of a case so closely parallel binding precedent as do the facts of the case sub judice with the facts in Youngblood. There the claimant was a carpenter’s helper who was performing manual labor when he experienced severe chest pains. The only physician to testify concerning the nature of the claimant’s injury and his prognosis was Dr. Maier. Dr. Maier diagnosed the claimant as having experienced an acute myocardial ischemia, the failure of the heart to be supplied with sufficient blood. This ischemia resulted from an underlying disease of arteriosclerosis. There the Workmen’s Compensation Commission applied the Rathborne rule in Rathborne and held that the claimant was not entitled to permanent disability because once his injury from the ischemia had been healed, his continuing disability was the result of the underlying disease. In reversing, Judge Inzer wrote for the Court:

It is clear from the evidence in this case that claimant established a compen-sable injury and the commission properly so found. It is also clear as a result of this injury claimant is permanently disabled to perform the same kind of work that he was doing prior to the injury. Having established a compensable injury and its continuance, the burden of proof was upon the employer-carrier to show not only a pre-existing infirmity which contributed to the results following the injury, but also the degree to which it contributed to the permanent disability. The doctor was certain that claimant had arteriosclerosis, which everyone has to some degree. However, we are of the opinion that his testimony does not substantiate the finding that claimant’s present disability is entirely due to his pre-existing arteriosclerosis. Here we have a case of no functional disability prior to injury with the undisputed fact of functional disability after the injury, although the same infirmity existed before and after. Where, as here, the facts are undisputed, the legal effect of the evidence and the ultimate conclusions drawn by the commission from the facts are questions of law. The commission was manifestly wrong in holding that claimant’s present permanent disability is entirely due to his pre-existing infirmity. Even though it might be said that this is a doubtful case, the doubt should be resolved in favor of compensation so that the purpose of the act may be carried out. M.T. Reed Constr. Co. v. Garrett, 249 Miss. 892, 164 So.2d 476 (1964).

260 So.2d at 190.

In the instant case, just as in Youngblood, the claimant had no history of functional disability prior to the incident at work. It is not disputed that following that incident the claimant has suffered a continuing disability. As we held in Youngblood, the legal effect of this evidence and the ultimate conclusions to be drawn therefrom are questions of law. We hold that the Commission was manifestly wrong in finding that Barham’s present permanent disability is entirely due to his pre-existing disease. As in Youngblood, we recognize that the facts presented make this a very close case. As we have frequently stated, in doubtful cases the doubt should be resolved in favor of compensation so that the purpose of the Workmen’s Compensation Act may be carried out. M.T. Reed Construction Co. v. Garrett, supra; Youngblood v. Ralph M. Parsons Co., supra.

Therefore, based on all of the foregoing, we hereby reverse and remand this cause to the Workmen’s Compensation Commission for the purpose of determining the degree of Barham’s permanent disability to be apportioned in accordance to the degree that his pre-existing disease contributed to his disability.

REVERSED AND REMANDED.

WALKER and ROY NOBLE LEE, P.JJ., and BOWLING, HAWKINS, PRATHER, ROBERTSON and SULLIVAN, JJ., concur.

PATTERSON, C.J., not participating.


source: Caselaw Access Project

author: ADAMS, Justice.

license: Public Domain

text:
    Charles A. GRADDICK as Attorney General of Alabama v. FIRST FARMERS AND MERCHANTS NATIONAL BANK OF TROY. HUNTSVILLE HOSPITAL v. FIRST FARMERS AND MERCHANTS NATIONAL BANK OF TROY. Bess H. BRADLEY v. FIRST FARMERS AND MERCHANTS NATIONAL BANK OF TROY (now First Alabama Bank of Troy, N.A.)
    82-108, 82-109 and 82-383.
    Supreme Court of Alabama.
    June 1, 1984.

      Ralph H. Ford and D. Edward Starnes III of Ford, Caldwell, Ford & Payne, Huntsville, for appellant Huntsville Hosp.
    Louis Salmon and Charles E. Richardson, III of Watts, Salmon, Roberts, Manning & Noojin, Huntsville, for appellant Bess H. Bradley.
    E.C. Orme and Joseph E. Faulk, Troy, for appellee.
   ADAMS, Justice.

These appeals are from the judgment of the Circuit Court of Pike County awarding an attorney’s fee to the firm of Orme and Faulk in the amount of $27,000.00, for services allegedly inuring to the benefit of the beneficiaries of a trust established by the will of Robert Murphree, deceased, and awarding the trustee of that trust a fee for its services in the amount of $29,643.13. The trial court also ordered that First Farmers and Merchants National Bank, the trustee, which was about to merge with First Alabama Bank of Troy, and no longer exist, would be allowed to continue as a successor-trustee in its new identity. It further ordered that in the future the trustee would be allowed to withdraw 5% of the trust income annually as a trustee fee without having to file a petition with the court to collect that fee. The income of the trust being insufficient to pay these fees, the court gave the trustee permission to sell approximately 3,600 shares of the stock of the corpus of the trust to satisfy these awards.

This case arises out of the following facts:

Robert Murphree died, leaving a substantial estate in trust for Bess Bradley, Dan Walls (deceased at the time of the litigation), and Huntsville Hospital as beneficiaries. Robert Murphree was formerly a resident of Troy, Alabama, but migrated to Huntsville, Alabama, where he was one of the original owners of the Henderson National Bank of Huntsville, Alabama. The trust consisted of only one asset, stock in the Henderson National Bank. The first trustee was Dean Murphree, a nephew of the settlor, who administered the trust without claiming a fee until he died in July 1970. Thereafter, the First Farmers National Bank began to administer the estate. The trust instrument, apparently drafted by Robert Murphree, made no provision for a trustee’s fee. The pertinent provisions of the trust instrument are as follows:

The said Dean Murphree, as trustee, after my death, is to stand seized and possessed of said 158 shares of stock [in Henderson National Bank], during the existence of this trust estate and during the existence of this trust he is to have the right to vote said stock. The said Dean Murphree, as such Trustee, is to collect and pay over the dividends derived from 30 shares of this stock to Dan Walls, for and during the term of his natural life; he is also to collect and pay over the dividends from 50 shares of this stock to Mrs. Bess Bradley, for and during the term of her natural life. The said Dean Murphree, as such trustee, is to collect and pay over the dividends from 78 shares of this stock to the Huntsville Hospital, Inc., during the existence of this trust. This trust is to terminate upon the death of the survivor of Dan Walls and Mrs. Bess Bradley, it being my intention that this trust shall continue and remain in existence until both the said Dan Walls and Mrs. Bess Bradley have died. Upon the death of either of said Dan Walls or Mrs. Bess Bradley, then and in that event, the said trustee, or his successor in office, is to pay over the dividends, which were being paid to said decedent, during his or her lifetime, to the Huntsville Hospital, incorporated until the death of the survivor of the said Dan Walls and Mrs. Bess Bradley. Upon the termination of this trust, which is to end upon the death of the survivor of the said Dan Walls and Mrs. Bess Bradley, I give, devise and bequeath the 158 shares of stock of the Henderson National Bank, comprising the trust estate, to the Huntsville Hospital, Inc. absolutely and in fee simple. It is my wish and desire that the dividends paid to said Huntsville Hospital, Inc. be used by it in defraying expenses of indigent and charitable patients, who may hereafter enter said Hospital for treatment. ...
In the event of the death of the said Dean Murphree, who is mentioned above as trustee, before the expiration date of this trust, as hereinbefore set forth, I hereby nominate and appoint the First Farmers and Merchants National Bank of Troy, Alabama, as succeeding trustee, during the remaining period of this trust, with all the powers, duties and obligations imposed upon the said Dean Mur-phree, as trustee, and I do hereby exempt both the said Dean Murphree as well as the succeeding trustee, the said First Farmers and Merchants National Bank of Troy, Alabama, -from the necessity of giving any bond, whatsoever, in the execution of this trust.

During the trusteeship of First Farmers and Merchants National Bank, $592,682.79 was received and $592,616.84 was disbursed. At the time the trustee filed a petition for instructions, it had on hand 69,732 shares of stock in First Bancgroup-Alabama, Inc., worth $1,150,578.00. During that same period, the Henderson National Bank had merged with the First National Bank of Mobile and the stock became stock of First Bancgroup-Alabama, Inc. The only function performed by First Farmers, other than being custodian for the stock, was the receiving of dividend checks from the stock and, in turn, drawing two checks four times a year on the trust estate and mailing these checks to the co-beneficiaries. On one occasion, however, First Farmers deducted a fee from its quarterly disbursement, which was promptly objected to by the beneficiary, Bess H. Bradley. Her attorney took the position that the trustee fee should be paid at Bess Bradley’s death. The bank then, in December 1978, wrote:

We do hereby concur with your decision as to the way the trustee’s fee should be collected. In accordance with this decision, a copy of this letter and checks for the amount that has been deducted are being sent to Mrs. Bradley and the Huntsville Hospital. The amount of the checks were determined in the same manner as the original deductions. Thus, Mrs. Bradley’s check was $949.50 and the Huntsville Hospital’s check was $2,050.50.
In the future, no trustee fee will be deducted and we will petition the court to establish a trustee fee at the termination of this trust.

At the time of the hearing on the bank’s petition for instruction and request for trustee's fees, it is undisputed that Mrs. Bradley was 90 years old and resided in the Parkview Village Nursing Home in Huntsville. Although she was alert, she was confined to a wheel chair. It is also undisputed that in reliance on the letter from the bank, Mrs. Bradley sold her home for $58,-000.00 and gave her nephews and niece the proceeds therefrom, as well as the furnishings from the home. Although she had willed the same nephews and niece the property before this time, she decided to give the cash to them prior to her death because, if she could receive the income from the trust unencumbered by fees, it would almost exactly equal the quarterly cost for her to stay in the Parkview Village Nursing Home. Although Mrs.' Bradley has other assets, it is undisputed that the sale of her property was predicated on the assurance of the bank that no trustee fee would be deducted from her quarterly checks.

It is significant to note here that the other appellant in this ease, Huntsville Hospital, has made no objection to the fee awarded to the bank. It is an income beneficiary, as well as the remainderman after the trust terminates at Mrs. Bradley’s death. According to the terms of the trust, it is to receive the entire trust estate after the trust terminates on the death of Mrs. Bradley, to be used “for the purpose of defraying the expenses of charity patients and equipping the charity ward of the hospital.” Both Mrs. Bradley and the Huntsville Hospital challenge the entitlement to, as well as the reasonableness of, the fee awarded to the law firm of Orme and Faulk. Orme and Faulk state that First Farmers, upon becoming successor-trustee in July 1970, appointed them as “general counsel” to advise the bank on the proper manner to handle the trust. Prior to assuming the position of successor-trustee, First Farmers had employed Orme and Faulk as their “general counsel,” under an agreement whereby they were paid an annual retainer of $1,800.00. Orme had been associated with First Farmers for 44 years, during which time he had been a stockholder, a member of the Trust Committee, and a member of the Board of Directors of First Farmers.

Orme and Faulk contend that as general counsel to the trust, they performed two specific services. First, they say they advised First Farmers, as successor-trustee, that in order to prevent having to file a final settlement of the affairs of the prior trustee, it should receive letters from the beneficiaries stating that they had received all that they were entitled to from the previous trustee. This was done. The second specific service claimed by Orme and Faulk was in connection with the Comptroller of the Currency’s insistence that the trust assets be diversified. The Comptroller raised the question of whether the stock of Henderson Bank was the same stock as that held by the trust before Henderson merged with First National Bank of Mobile or First Bancgroup-Alabama, Inc. The contention was that if the stock were one and the same, diversification need not occur. However, if it were not one and the same, the stock should be diversified. Orme resisted the suggestion of the Comptroller of Currency that the stock of the trust be diversified; he wrote a letter citing an Alabama case, and Scott on Trusts, claiming that the “prudent man rule” applied. The Comptroller was unconvinced, but finally agreed to withdraw its request for diversification if First Farmers would receive indemnification agreements yearly from the residuary beneficiary, Huntsville Hospital, in order to preclude suit should the value of the stock drop. This First Farmers promptly began to do.

When the petition for instructions was filed on June 9, 1982, the corpus of the trust was valued at $1,150,578.00. In May of 1983, the corpus was worth $1,603,-836.00, a $453,258.00 increase since June 9, 1982. Orme testified that the “bottom line” purpose of the letter to the Comptroller was to prevent a possible future lawsuit by Huntsville Hospital for negligence on the part of the bank, as well as “just getting rid of that nuisance fellow with the Trust Department.” Orme and Faulk offered several expert witnesses to testify as to what a reasonable fee would be for their services. These attorneys generally testified as to what a reasonable fee would be for Orme and Faulk because of their position as “general counsel” of this trust. Orme testified that in his practice he had never kept time records. His partner, Mr. Faulk, testified that he did keep time records and had spent 52.6 hours on trust matters since May 1982. He further estimated that Orme had spent 20 to 25 hours on the proceedings involved in the petition for instructions. ■

The petition for instructions filed by Orme and Faulk in 1982 was occasioned because First Farmers was about to cease to exist, and thereafter it did become First Alabama Bank of Troy. But for a period of almost 13 years, neither the bank nor Orme and Faulk had claimed fees of any kind, except on one occasion, and that claim was withdrawn.

The following issues are before us on appeal:

1. Whether the trial court erred in awarding First Farmers and Merchants National Bank a trustee’s fee of $29,-634.13.
a. Whether the trustee had waived its right to collect its fee for services rendered to the trust prior to the filing of the petition in this case.
b. Whether the trustee is estopped to collect its fee during the lifetime of appellant Bradley.
c. Whether the fee awarded to the trustee by the trial court exceeded the reasonable value of the services rendered.
2. Whether the trial court erred in awarding Orme and Faulk an attorney’s fee of $27,000.00.
a. Whether the legal services rendered by Orme and Faulk were for the benefit of the common estate and properly payable from the trust.
b. Whether the fee awarded to Orme and Faulk is in excess of the fair value of legal services inuring to the benefit of the common estate.
c. Whether the fee awarded to Orme and Faulk is in excess of the fair value of the services performed.
3.Whether the trial court erred in decreeing that payment of fees awarded for administration of the Murphree trust and the attorney's fees should be accomplished by selling a portion of the corpus of that trust.

As to issue one, we hold that the trial court did err in awarding First Farmers and Merchants National Bank a trustee’s fee of $29,634.13. The doctrine of equitable or promissory estoppel clearly protects the interest that Bess Bradley has in the corpus of the trust. Huntsville Hospital did not object to the trustee’s fees; therefore, 68.35% of the award may be assessed against its interest in the corpus of the trust. As to issue two, although thé trial court, in its order, awarded Orme and Faulk a fee of $27,000.00 for services “which have inured to the benefit of the beneficiaries of the trust,” we cannot discern from the record with any precision how this determination was made. This part of the order is vacated, with instructions to the trial court to conduct an eviden-tiary hearing and set forth, in relation to the evidence, the basis of its determination of the award of $27,000.00. We further hold that, under the facts in this case, the trustee’s fees, as well as attorney’s fees, can be satisfied by selling a portion of the corpus of this trust.

I.

Alabama recognizes the principle of equitable estoppel, as well as promissory estoppel. In Mazer v. Jackson Insurance Agency, 340 So.2d 770, 772 (Ala.1976), we said:

This principle has long been recognized in Alabama jurisprudence. See Johnson v. Blair, 132 Ala. 128, 31 So. 92 (1901).
The basic elements of equitable estop-pel are stated in Dobbs, Remedies § 2.3 (1973):
“An estoppel ... has three important elements. The actor, who usually must have knowledge of the true facts, communicates something in a misleading way, either by words, conduct or silence. The other relies upon that communication. And the other would be harmed materially if the actor is later permitted to assert any claim inconsistent with his earlier conduct.”

Here, the facts cry out for application of the doctrine. Mrs. Bradley, who is 90 years old, sold her house and furnishings and gave the cash, as well as the furnishings, to her nephews and niece, to whom she had previously willed these items. When the bank, in December 1978, wrote to Mrs. Bradley’s lawyer, stating “We do hereby concur with your decision as to the way the trustee’s fee should be collected,” and “In the future, no trustee fee will be deducted and we will petition the court to establish a trustee fee at the termination of this trust,” First Farmers made a promise which it could reasonably expect Mrs. Bradley to act on. She did, in fact, act on this promise, because the undisputed testimony is to the effect that after she received the promise, she sold her house and went into a nursjng home because the amount of the fees charged by the nursing home was almost identical to the amount she received from the trust.

First Farmers argues that the doctrine does not apply because Mrs. Bradley had other assets that she could use, presumably to supplement any loss of income occasioned by the payment of the trustee’s fee. We reject this argument. The doctrine of promissory estoppel is not grounded on the fact that the person who has been misled may not have an alternate course of action. Mrs. Bradley had the right to expect First Farmers to abide by its promise and not use the fact that it was about to change its legal identity to invoke the court’s imprimatur on a course of action inconsistent with what it had previously promised her, and which she had relied on. The trustee was about to terminate— the trust was not about to terminate.

Furthermore, there can be no doubt that a trustee may waive compensation for its services. For many reasons, trustees do waive fees for their services. Mr. Dean Murphree is an example in this case. The general rule is as follows:

Although the trustee is entitled to be paid for his services, he may voluntarily forego his claim to compensation. Thus if the Trust terminates and the trustee distributes the trust property without deducting any compensation, intending to make no claim therefor, he cannot thereafter require the beneficiaries to pay him compensation. Similarly if the trustee pays income to the beneficiaries who are entitled to income and does not deduct compensation to which he is entitled, evidencing an intention to make no claim to such compensation, he cannot thereafter require the beneficiaries to pay him such compensation, nor is he entitled to such compensation out of income subsequently accruing.

Scott on Trusts, § 242.8 (3rd ed. 1967); see also Restatement (Second) of Trusts § 242, Comment j (1959). Numerous cases have reached results in accord with this general rule. See, e.g., Hardy v. Hardy, 222 Ark. 932, 263 S.W.2d 690 (1954); Cook v. Stockwell, 206 N.Y. 481, 100 N.E. 131 (1912).

Inasmuch as Huntsville Hospital did not object to the trustee’s fee, 68.35% of that fee can be paid out of the corpus of the trust with stock earmarked by the trust in the name of the Huntsville Hospital.

II.

The trial court awarded Orme and Faulk an attorney’s fee of $27,000.00 for services inuring to the benefit of the beneficiaries of this trust. After the trial court’s decision in this case, this court released Peebles v. Miley, 439 So.2d 137 (Ala.1983). There, we reviewed the criteria that had been used for determining attorney’s fees in Alabama in the lead cases of Faulk & Co. v. Hobbie Grocery Co., 178 Ala. 254, 59 So. 450 (1912), King v. Keith, 257 Ala. 463, 60 So.2d 47 (1952), Frazier v. First National Bank of Mobile, 235 Ala. 252, 178 So. 441 (1938), Ingalls v. Hare, 266 Ala. 221, 96 So.2d 266 (1957), and added five additional criteria. We do not' suggest that all of these criteria must be met. Indeed, there would hardly ever be a case where the application of attorney’s fees brought into play every criterion. But they are available for the trial judge to use in connection with each claim for attorney’s fees.

In the brief of the Huntsville Hospital, the contention is made that Orme and Faulk are not entitled to any fee because they have not rendered any service for the common estate. This principle is firmly embedded in our law. Zimmerman v. First National Bank of Birmingham, 348 So.2d 1359 (Ala.1977); Clark v. Clark, 287 Ala. 42, 247 So.2d 361 (1971); Pate v. Law, 277 Ala. 608, 173 So.2d 596 (1965); Matthews v. Lytle, 220 Ala. 78, 124 So. 197 (1929); Dent v. Foy, 214 Ala. 243, 107 So. 210 (1925). See e.g., Birmingham Trust Nat. Bank v. Harrison, 403 So.2d 224 (Ala.1981). This court said in Wilkinson v. McCall, 247 Ala. 225, 230, 23 So.2d 577, 580 (1945):

Services for the common benefit of the parties mean services that are of benefit to the common estate, or in other words services rendered in a matter in which the trust as a trust is interested and not services in behalf of the individual interests of the parties to the cause. [Citations omitted.]

In Lewis v. Wilkinson, 237 Ala. 197, 198, 186 So. 150, 150 (1939), this court wrote:

Attorneys’ fees will be charged to the interest in truth and in fact represented. The fact that the representation incidentally resulted in benefit to the other ces-tuis que trustent did not authorize charging them with attorneys’ fees. [Citations omitted.]

We recognize that the award of attorney’s fees is largely within the discretion of the trial court. Peebles v. Miley, 439 So.2d 137 (Ala.1983); Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir.1974). We have read, and read again, the testimony of Orme as it appears on two occasions in the transcript. We also were benefited by his presence in oral argument. However, when he testified that the “bottom line” purpose of the letter to the Comptroller was to prevent any possible future lawsuit from Huntsville Hospital for negligence on the part of the bank, as well as “just getting rid of that nuisance fellow with the Trust Department,” it seems that this comes pretty close to saying his main concern was First Farmers Bank, whom he represented as general counsel, whom he had been associated with for 44 years, and with whom he had been a stockholder and a member of the board of directors. But the trial court listened to Orme’s testimony and observed him on the witness stand. Therefore, we cannot tell from the cold pages of the record what the court knows, particularly when such knowledge is not reflected in any detail in the order we have before us.

One of the criteria used in evaluating all requests for attorneys’ fees is whether valuable services have been rendered to the parties represented. Here, there is testimony to the effect that the Henderson Bank stock, now represented in First Bancgroup-Alabama stock, has experienced a phenomenal growth. Nevertheless, there is no clear showing as to the difference, money-wise, between what the trust estate would be worth if Orme had not resisted the Comptroller of the Currency’s suggestion that it diversify, and what it is worth now. Orme suggested that the only investment that could have been made was in government bonds. But this phase of his services was not detailed. Inasmuch as Orme insisted that the trust keep Henderson National stock, now represented in First Bancgroup-Alabama stock, rather than diversify, thereby causing a potential risk to First Farmers, then truly he may have performed valuable services directly, not incidentally, for the common trust rather than for First Farmers.

Both Mrs. Bradley and Huntsville Hospital argue that inasmuch as Orme did not keep a record of his hours and only 78 hours can be proved, $27,000.00 is an inordinate amount for the expenditure of so little time. In Peebles v. Miley, supra, we warned against slavish consideration of hours as the sole criterion upon which attorneys’ fees can be based. However, if Orme can show that his services in resisting the Comptroller were for the benefit of this trust and these beneficiaries, solely, and that such actions resulted in the benefit to them in the amount of hundreds of thousands of dollars, he indeed may be entitled to the $27,000.00 fee awarded. The trial court’s award is, therefore, vacated, with instructions for that court to conduct an evidentiary hearing along the lines indicated, and set forth with some particularity its findings from the evidence adduced.

Finally, all attorneys should remember our admonition in Peebles:

Because of the sensitive nature of the problem of attorney’s fees, the litigants and the public would be better served if both attorneys in this case, and their clients, attempted to settle these differences without further resort to the courts.

439 So.2d at 144.

III.

The statute dealing with how expenses, including trustee’s fees and attorneys’ fees, are paid is Code 1975, § 19 — 3— 281. It reads as follows:

(a) All ordinary expenses incurred in connection with the trust estate or with its administration and management, including regularly recurring taxes assessed against any portion of the principal, water rates, premiums on insurance taken upon the estates of both tenant and remainderman, interest on mortgages on the principal, ordinary repairs, trustees’ compensation except commissions directed to be paid out of principal, compensation of assistants, and court costs and attorneys’ and other fees on regular accountings, shall be paid out of income. But such expenses where incurred in disposing of, or as carrying charges on, unproductive estate as defined in section 19-3-280 shall be paid out of principal, subject to the provisions of subdivision (2) of section 19-3-280.
(b) All other expenses, including trustees’ commissions directed to be paid out of principal, cost of investing or reinvesting principal, attorneys’ fees and other costs incurred in maintaining or defending any action to protect the trust or the property or assure the title thereof, unless due to the fault or cause of the tenant, and costs of, or assessments for, improvements to property forming part of the principal, shall be paid out of principal. Any tax levied by any authority, federal, state or foreign, upon profit or gain defined as principal under the terms of subsection (b) of section 19-3-272 shall be paid out of principal, notwithstanding said tax may be denominated a tax upon income by the taxing authority.

We understand (a) of § 19-3-281, Code 1975, to deal with all ordinary expenses incurred in connection with a trust estate. All other expenses are included under (b). Orme and Faulk contend that the phrase in (b) reading “and other costs incurred in maintaining or defending any action to protect the trust or the property or assure the title thereof” authorizes the court to pay their attorneys’ fees out of the principal, inasmuch as .the services they rendered were rendered in defending an action on the part of the Comptroller of the Currency, which would have required that they diversify the sole asset of the trust. In other words, the trustee would have had to sell the First Bancgroup-Alabama stock and buy other securities. We view the word “action” in this clause in its technical sense, namely, a court proceeding. Here, there was no court activity arising from the Comptroller’s actions. Nor can we view the services rendered in this case as an ordinary expense as set forth in (a), requiring payment from the income of the trust, rather than from the principal or corpus of the trust. The enumeration of what usually is considered the nature of the attorneys’ fees to be paid out of income leads us to this conclusion. In (a), the words “attorneys’ and other fees on regular account-ings,” do not seem to include the kind of attorneys’ fees that are involved in this litigation.

Likewise, we are of the opinion that where the trustee is required to make a settlement because of the imminent termination of its legal existence, the expenses thereby incurred are not ordinary.

Therefore, we are of the opinion, and so hold, that 68.35% of the fee awarded to First Farmers can be paid out of the corpus from stock earmarked for Huntsville Hospital, and whatever fee, if any, the court determines is due to Orme and Faulk, or whatever fee the parties may agree to, can also be satisfied by sale of a portion of the corpus from stock earmarked both for Huntsville Hospital and Bess H. Bradley.

AFFIRMED IN PART; REVERSED IN PART; JUDGMENT IN FAVOR OF ORME AND FAULK VACATED WITH INSTRUCTIONS TO PROCEED IN A MANNER NOT INCONSISTENT WITH THIS OPINION.

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


author: BEATTY, Justice.

text:
    FIRST NATIONAL BANK OF PULASKI, TENNESSEE, and Parmenas Cox and Robert E. Curry, individually, and d/b/a Cox and Curry Insurance Agency, a partnership v. Carl R. THOMAS and Delma M. Thomas.
    82-1259.
    Supreme Court of Alabama.
    June 22, 1984.

      Jere C. Trent, Athens, for appellants.
    Jimmy E. Alexander of Alexander, Cord-er & Plunk, Athens, for appellees.
   BEATTY, Justice.

This is an appeal by the defendants, First National Bank of Pulaski, Tennessee, (Bank) and Parmenas Cox and Robert Curry, individually and doing business as a partnership, Cox and Curry Insurance Agency in Pulaski, Tennessee, from a judgment for plaintiffs, Carl R. and Delma M. Thomas. We affirm.

The town of Ardmore is located in the northern part of Limestone County, Alabama, and is separated from the town of Ardmore, Tennessee, by Main Street. The Ardmore branch of the Bank fronts on the northern, or Tennessee, side. At the times material to this case, Parmenas Cox was chairman of the Bank’s board of directors and Robert E. Curry was the Bank’s president. Cox and Curry were also partners in a general insurance agency under the name of Cox and Curry Insurance Agency. They conducted their business in Ardmore by utilizing the offices and the employees of the Bank, paying the Bank for employee services, rent, and utilities, with the commissions (40%) on policies sold going to the Bank. Barbara Hodges, a resident of Limestone County, was manager of the Bank’s Ardmore branch. In its operations, the Bank made credit life and disability insurance available to its customers through the Cox and Curry Insurance Agency, with the Bank writing the policies.

Plaintiffs Carl R. and Delma M. Thomas, husband and wife, are Alabama residents, living in Elkmont in Limestone County near Ardmore, Tennessee. They owed a mortgage indebtedness to the Bank which covered their home and an adjoining rental house. On March 13, 1978, the Thomases refinanced this existing loan with the Bank, evidenced by a promissory note. The Bank furnished a disclosure statement.

On July 17,1978, Carl Thomas suffered a heart attack and has not worked since that date. The Thomases refinanced their Bank indebtedness in each of the years 1979 through 1982. Shortly after the 1982 renewal, Billy Bell, an employee of the Bank who acted as a bank guard and an appraiser and collector, went to plaintiffs’ premises. He measured the Thomases’ house but did not go inside. Bell then went next door to the Thomases’ rental house. He was invited inside by the tenant, Suzanne Py-lant, who knew Bell. Bell left shortly thereafter.

On October 13, 1982, the Thomases brought this action against the defendants, claiming damages for breach of contract and trespass, among other claims. Plaintiffs’ contract claim alleged that on March 13, 1978, defendants agreed to insure Carl R. Thomas for credit life and disability insurance in the amount of $22,834.88 in consideration of a premium in the amount of $302.83 paid by plaintiffs; that plaintiff Carl R. Thomas suffered a heart attack on July 17, 1978, with his resulting complete disability; that the disability benefits thereupon became due and payable, but that the defendants had failed and refused to pay them.

As amended, the trespass count alleged:

“2. The said Defendant Bank caused said uniformed guard, while dressed as a law enforcement officer and while armed, to enter upon the real estate owned by the Plaintiffs and in their possession, including the home and the dwelling house of the Plaintiffs, the curtilage thereto, as well as an adjoining dwelling house and the curtilage thereof, with knowledge on such Defendant’s part that such an intrusion was an invasion of the rights of the Plaintiffs; the said Defendant intentionally acted and which resulted in the invasion of the rights of the Plaintiff, and said Defendant reasonably foresaw that the act done would result in an invasion of the Plaintiffs’ possessory interest and damages to the Plaintiff.
“3. On said occasion, the Plaintiffs owned said land, or the Plaintiffs were in possession of said land, and the said Defendant Bank, by its agent, intentionally and with force, trespassed on Plaintiffs’ land without the Plaintiffs’ consent, the force being implied, and the Plaintiffs were damaged by the Defendant’s entry. The market value of the Plaintiffs’ real estate was decreased, the Plaintiffs were subjected to humiliation, embarrassment and emotional suffering and distress; the Defendant’s trespass on Plaintiffs’ land was attended by rudeness, wantonness, recklessness, or was done in an insulting manner, or was accompanied by circumstances of oppression or aggravation or gross negligence, and the Plaintiffs are entitled and expressly claim punitive damages.”

Defendants Cox and Curry moved to dismiss the claim on the ground that no personal jurisdiction existed over them. This motion was overruled, whereupon they made a general denial. The Bank denied that the Thomases applied for or paid for disability insurance or that the Bank agreed to insure against disability. The Bank also denied the allegations of trespass.

At the conclusion of plaintiffs’ case and at the close of the evidence, defendants’ motions for directed verdicts were denied. The jury returned a verdict against the Bank and Cox and Curry on the contract claim in the amount of $30,723.00. It returned a verdict against the Bank on the trespass claim in the amount of $25,000.00. Post-trial motions for a new trial and for judgment notwithstanding the verdict were denied, and all defendants appealed.

The first issue raised by appellants Cox and Curry is whether or not the Circuit Court of Limestone County had personal jurisdiction over them. It is their contention that no jurisdiction existed, as evidenced by an affidavit filed with their motion to dismiss and by the testimony of Parmenas Cox. They have established, it is argued, that at all times they were residents of Tennessee; that they were licensed to do business within Tennessee; that they did business only in Tennessee; and that all of the transactions in question occurred in Tennessee. Thus, they insist, there were no contracts within the state of Alabama relative to the subject matter upon which to bestow in personam jurisdiction. To the contention that Rule 4.2(a)(2)(G), A.R.Civ.P., gave jurisdiction, they maintain that there is a complete absence of evidence that any of their agents or employees agreed to obtain disability insurance for plaintiffs. To the contrary, these defendants argue, all of the plaintiffs’ contracts were with employees of the Bank only, and there was no evidence that the Bank employees acted as employees of Cox and Curry. Rule 4.2(a)(2)(G) reads as follows:

“(2) Sufficient contacts. A person has sufficient contacts with the state when that person, acting directly or by agent, is or may be legally responsible as a consequence of that person’s:
“(G) Contracting to insure any person, property, or risk located within this state at the time of contracting ....”

In Alabama Power Co. v. VSL Corporation, 448 So.2d 327 (Ala.1984), this Court adopted the reasoning contained in Garrett v. Key Ford, Inc., 403 So.2d 923 (Ala.Civ.App.1981):

“ ‘The ultimate test of in personam jurisdiction is “reasonableness” and “fairness” and “traditional notions of fair play and substantial justice.” ’ Oswalt v. Scripto, Inc., 616 F.2d 191, 200 (5th Cir.1980). That case merely restated the rule announced in the leading case of International Shoe Co. v. State of Washington, etc., 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945), that an in personam judgment may be rendered against a nonresident if he has certain minimum contacts so that the maintenance of the suit does not offend ‘traditional notions of fair play and substantial justice.’ 326 U.S. at 316, 66 S.Ct. at 158.” 403 So.2d at 925.

In VSL Corporation, this Court held that a Minnesota steel fabricating corporation, which did not actively solicit business in Alabama and had no officers, directors, or employees in Alabama, nevertheless was amenable to Alabama process, because the company knew that its products were to be used in Alabama and were actually shipped to Alabama.

Considering the requirement of “minimum contact,” this Court has quoted with approval the passage from 2 J. Moore, Federal Practice, par. 4.25, pp. 4-258 through 4-267 (2d ed. 1982), in View-All, Inc. v. United Parcel Service, 435 So.2d 1198 (Ala.1983), especially the following at 1201:

“If there are substantial contacts with the state, for example a substantial and continuing business, and if the cause of action arises out of the business done in the state, jurisdiction will be sustained. If there are substantial contacts with the state, but the cause of action does not arise out of these contacts, jurisdiction may be sustained. But if there is a minimum of contacts, and the cause of action arises out of the contacts, it will normally be fair and reasonable to sustain jurisdiction. If there is a minimum of contacts and the cause of action does not arise out of the contacts, there will normally be no basis of jurisdiction, since it is difficult to establish the factors necessary to meet the fair and reasonable test.”

The evidence in this case disclosed that the Cox and Curry Insurance Agency handled many insurance policies dealing with Alabama transactions. The Bank branch, in fact, was placed at Ardmore to serve the trade area which included Limestone County and it drew many customers from the entire area. Additionally, Cox and Curry were principal officers of the Bank, whose employees wrote or offered insurance for their agency in connection with its many real estate loans on property in Alabama. The record shows that Barbara Hodges, manager of the Ardmore branch of the Bank, talked with Cox and Curry from time to time and conferred with them regarding the insurance written by the Bank. An employee of the Bank, Gail Gower, filled out the loan disclosure form for the plaintiffs’ 1978 loan and also handled the insurance in connection with that loan, placing it with the Cox and Curry Insurance Agency. Under those circumstances, it is both fair and reasonable to require Cox and Curry to come to this state and defend this action, and does not offend principles of due process. DeSotacho, Inc. v. Valnit Industries, Inc., 350 So.2d 447 (Ala.1977); Rule 4.2, A.R.Civ.P., and comments. Thus, we hold that Alabama had personal jurisdiction of Cox and Curry based on their service by certified mail.

The second issue raised by the defendants is whether there was any evidence of an agreement between the parties for disability insurance.

On this question of insurance, the evidence is disputed. Prior to the renewal of plaintiffs’ loan on March 13,1978, plaintiffs had borrowed money from the Bank in 1976, giving a mortgage on their home in return. In the spring of 1977, plaintiffs had purchased additional real estate and refinanced their original loan. Plaintiffs’ exhibit number one, the Bank’s copy of the disclosure statement for that 1977 loan, contained the following statement under “Insurance”: “I desire credit life and disability insurance. Cost $192.89 for the term of credit.” (Emphasis added.) The “yellow” copy of this disclosure statement given to Carl Thomas, however, did not duplicate that “Insurance” item but did contain this marginal notation: “Credit Life (not required by bank, customer directs payment to Cox & Curry, Agent). $192.89.”

When the identical loan amount, $22,-834.88, was refinanced on March 13, 1978, the “yellow” copy of the loan disclosure statement contained the same reference to credit life and disability insurance; however, the premium cost was stated as $302.83. Again, the marginal reference on the same form, although stating the premium as $302.83, referred only to “Credit Life.”

In describing the 1978 loan agreement, Carl Thomas testified:

“I refinanced it and I told Mrs. Gower that I wanted credit life and disability insurance and she said if I got sick it would pay for it — the payments on it until I got better able to work and at the end of the year — it was a twelve month contract — at the end of the year if I was totally disabled to work, it would be paid for, if I died it would be paid for.”

His testimony was corroborated by Mrs. Delma Thomas, who testified concerning the 1978 transaction:

“I know we talked about insurance. My husband distinctly told Mrs. Gower that he wanted credit life and disability insurance if it was available.”

Plaintiffs had been directed to Mrs. Gower by Ms. Hodges, the Bank branch’s senior managing officer. Parmenas Cox himself testified:

“Q. Ms. Gower, when she handled this transaction in March of 1978, she was acting for and on behalf of Cox and Curry Insurance Agency with reference to the insurance?
“A. I wish I was permitted — with your permission, I would like to explain a little bit about the relationship of the insurance agency and the bank.
“Q. Well, all I am getting at — I know that she worked for the bank but she was acting on behalf of the insurance agency with reference to the insurance; was she not?
“A. That’s right.
“Q. And she was acting on behalf of the bank with reference to handling the loan transaction?
“A. That’s correct.”

In this case, the plaintiffs sued upon the defendants’ alleged agreement to insure plaintiff for credit life and disability insurance, as well as an alleged insurance contract. The trial court submitted to the jury the question whether there had been a contract “whereby the Defendants agreed to produce or furnish to them a policy of disability insurance.”

In Highlands Underwriters Ins. Co. v. Elegante Inns, 361 So.2d 1060 (Ala.1978), this Court stated at 1065:

“Once the parties have come to an agreement on the procurement of insurance, the agent or broker must exercise reasonable skill, care, and diligence in effecting coverage.... When the agent or broker has failed in the duty he assumes, the principal may sue either for breach of the contract or, in tort, for breach of the duty imposed on the agent or broker_” (Citations omitted.)

That quotation follows the general principle approved in American Life Ins. Co. of Alabama v. Carlton, 236 Ala. 609, 184 So. 171 (1938), and provided in 43 Am.Jur.2d Insurance § 161 (1982):

“Instead of making a contract of present insurance, the parties may make an agreement to enter into a contract of insurance at a future date. Such execu-tory contracts to insure in the future are valid and enforceable, even though oral, if all the other essentials of a valid contract are present.”

The Bank argues that its customary business practice was to type the insurance coverage on the left margin of its promissory notes, and points out that the seven notes executed by the Thomases between 1972 and 1982 referred to “Life Ins.” or “Life Insurance,” the 1978 note containing the notation, “Life Ins. $302.83.” The evidence of the Thomases, however, is that the copies of the disclosure statements for 1977 and 1978 refer to credit life and disability insurance, that Mrs. Gower made the representation referred to earlier, and further, that the Thomases were never provided with any policy or shown any agreement between them and the Cox and Curry Insurance Agency, the Bank, or any insurance company.

The facts adduced established reasonable inferences that Mrs. Gower was an agent for the Cox and Curry Insurance Agency, as well as for the Bank, to provide disability insurance coverage for plaintiff Carl Thomas for the consideration expressed in the disclosure statement. That issue, it follows, was properly submitted to the jury; hence, the trial court did not err in refusing to direct a verdict for the defendants on this issue. Cf. Allstate Ins. Co. v. Richards Electric Co., 447 So.2d 175 (Ala.1984).

The Bank also argues that the trial court erred in regard to the plaintiffs’ trespass count by failing to grant its motions for directed verdict and judgment notwithstanding the verdict. On appeal, the Bank asserts that it had a right to possession of the property in question under its mortgage given by the Thomases. The record discloses that this defense is being raised for the first time on appeal. In the sequence of pleadings, the Thomases alleged trespass by the Bank in Count Eight of their complaint. In its “Answer to Count Eight,” the Bank entered a general denial. It is clear from a reading of the record that under its plea of general denial the Bank’s evidence was directed toward establishing consent or permission to enter the Thomas-es’ premises.

Moreover, the trial court’s oral instructions to the jury did not cover the Bank’s present claim of a right of possession by virtue of the mortgage. On the trespass count, the trial court charged as follows:

“Now, in order for the Plaintiffs to prove to you or reasonably satisfy you that there was a trespass, they have the burden to show you or reasonably satisfy you from the evidence of several things. First of all, they must show you that they had title to the property or land and I don’t think there is any dispute about whether they owned the property. Secondly, they must show that they were in possession of this land and I don’t think there is any dispute about that.... Now, the Defendant, in answer to the charge of trespass, says that they had permission to enter upon the land. That is, they had consent to walk upon the plaintiff’s land....”

Following the giving of this charge, all defendants expressed satisfaction, and no further instructions were requested.

The assertion now, for the first time, that the Bank as mortgagee had a right to enter upon plaintiffs’ premises raises a theory which we cannot consider. Dixie Highway Express, Inc. v. Southern Railway Co., 286 Ala. 646, 244 So.2d 591 (1971). Having permission or consent to enter upon the land, on the one hand, and having the right as mortgagee to enter upon that land, are obviously inconsistent and different theories. Having permission or consent implies that plaintiffs had the right to control the Bank’s entry, while having the right to enter the land as mortgagee implies a right of entry not dependent upon permission or consent of the plaintiff mortgagors. Having tried its case below on the theory of consent, the Bank cannot now pursue the new theory of entrance by right as mortgagee.

Additionally, the Bank contends that there was no evidence of trespass. It is undisputed that Bell was acting for the Bank at the Thomases’ premises. Employee Bell, according to the Bank, went to the Thomases’ property to make a routine appraisal and did so without incident. He was greeted at the residence by Lowell T. Mays, Mrs. Thomas’s brother, who acceded to Bell’s purpose to step off the lot lines. According to the Bank, Bell was also allowed to appraise the rental property occupied by Mrs. Pylant, who knew Bell was employed by the Bank.

Mays, testifying for the plaintiffs, denied giving Bell any permission to come on the property and stated that he told Bell: “You should wait until they return. They should be back any minute.” Bell’s response, according to Mays, was: “That’s all right. I will step it off.” Mays said that Bell spent 15 to 20 minutes on plaintiffs’ property. According to plaintiffs’ evidence, Bell was wearing a uniform the same as that worn by members of the Ardmore Police Department, with the logo of that department on each shoulder. The evidence disclosed that the Town of Ardmore had not authorized the wearing of that uniform by Bell. According to Mays, Bell had in his possession a .38-caliber revolver.

Mays further testified that when the Thomases arrived 30 minutes after Bell’s departure, he reported Bell’s visit and it caused them to become very upset. Mrs. Thomas testified on cross-examination that Bell’s visit upset her and that she was sure it decreased the value of their property “if people thought we were having to sell our property.” She also testified that she became ill and remained in bed for three weeks on account of Bell’s visit. Carl Thomas himself testified that he was humiliated and embarrassed by Bell’s being out there, because people who knew he was “down and out” might have wondered whether he was about to lose his property. He also stated that he became emotionally upset, could not sleep, and also lost 20 pounds in weight following Bell’s visit. There was also evidence that Barbara Hodges, the Bank manager, knew of Carl Thomas’s heart condition.

The Bank also argues that there was no evidence of any damage to the Thomases or to their land. On that issue, the plaintiffs alleged:

“The market value of the Plaintiffs’ real estate was decreased, the Plaintiffs were subjected to humiliation, embarrassment and emotional suffering and distress; the Defendant’s trespass on Plaintiffs’ land was attended by rudeness, wantonness, recklessness, or was done in an insulting manner, or was accompanied by circumstances of oppression or aggravation or gross negligence, and the Plaintiffs are entitled and expressly claim punitive damages.”

In his oral charge to the jury, the trial judge instructed that under the evidence the jury could not award any recovery for substantial damages to the plaintiffs’ land should they find that a trespass occurred. That instruction did allow nominal damages, and also, should the jury find a trespass, punitive damages if the trespass “was done ... in a manner which was rude or which was wanton or which was reckless or which was insulting or which was malicious or oppressive.”

The evidence for plaintiffs established that they were in possession of the land in question and had not given the Bank or Bell permission to enter it. Under that evidence, the jury could have found that Bell was a trespasser and that plaintiffs were entitled to nominal damages. Johnson v. Martin, 423 So.2d 868 (Ala.Civ. App.1982); Foust v. Kinney, 202 Ala. 392, 80 So. 474 (1918). Moreover, punitive damages may be awarded in a trespass action for a trespass attended with rudeness, wantonness, recklessness, or an insulting manner, or accompanied by circumstances of fraud and malice, oppression, aggravation, or gross negligence. Rushing v. Hooper-McDonald, Inc., 293 Ala. 56, 300 So.2d 94 (1974). Rushing also contained citations to well-established authorities allowing recovery for mental suffering proximately caused by trespass to property committed under circumstances of insult or contumely. These principles .have been applied in cases similar to the case at bar. In Dixie Construction Co. v. McCauley, 211 Ala. 683, 686, 101 So. 601, 603 (1924), involving a trespass by searching for stolen property, this Court found no error in the allowance of consequential and punitive damages, stating:

“The wrong complained of, though committed with the politeness of a Chesterfield, was calculated to bring an honest person into public contempt, to humiliate a just pride, and to wound proper feeling. For such wrong plaintiff was entitled to substantial damages .... Mattingly v. Houston, 167 Ala. 167, 52 So. 78.”

And, in Mathers v. Taylor, 47 Ala.App. 124, 251 So.2d 622 (1971), a trespass case involving a seizure of personal property from plaintiffs’ home by one claiming to be a sheriff, the Court of Civil Appeals held that the circumstances warranted an award of punitive damages.

In this case, the jury could have reasonably concluded that Bell, while wearing the uniform of the Ardmore Police Department, which he was not authorized to wear, with a revolver strapped to his side, went upon the plaintiffs’ land without permission and spent 15 to 20 minutes there, stepping off the length and width of the two houses located there. He was asked by Mrs. Thomas’s brother to wait but refused to do so. He was observed by a neighbor, Mrs. Pylant, by plaintiffs’ son, and by Mrs. Thomas’s brother, Mays. The Thomases, being pressed financially, testified to humiliation, embarrassment, and mental anguish at the prospect of losing their home. This evidence satisfied the scintilla rule and made the issue of damages, nominal and punitive, one for the jury. Hickox v. Vester Morgan, Inc., 439 So .2d 95 (Ala.1983).

The final argument of the defendants concerns alleged misconduct toward the jury. It is contended that Avis Cremin, Mr. Thomas’s sister, made an improper contact with at least one juror which was calculated to and did result in prejudice to the defendants. The circumstances surrounding this episode are as follows:

Following the noon recess, taken after the defense had rested, the Bank’s counsel informed the trial court of statements made to him by two of his witnesses, Bell and Gower. These witnesses had told him that they had overheard Avis Cremin talking to a group of jurors and that she had talked to one of them for four or five minutes. Thereupon, the trial court, out of the jury’s presence, allowed the Bank’s counsel to question Avis Cremin under oath. The record shows that Ms. Cremin did state to a person something she had heard someone else say. She testified that she did not know the person was a juror; that she was excited and, not speaking specifically to that person, said: “Thank God, I think they have settled it.” She testified that she had no other conversation with that person. In addition, she said she was with another group of people and they all were talking about “the water being up at the A & P parking lot.” She said she did not recognize any of these persons as being jurors and denied talking to any jur- or about any matter pertaining to the case. She conceded that she said to someone that she was afraid that her brother would not live to get home. She made the remark to nobody in particular, she said, but she believed she said it to Mr. Thomas’s stepdaughter Patty. She also said to Mr. Cox that her brother was under a lot of stress. Ms. Cremin said she was “pretty sure” that there were no jurors present when this statement was made. According to her testimony, several members of the Thomas family were in court throughout the trial, and it is inferable from the record that these exchanges occurred during recess.

It was also established that Ms. Cremin was not a witness and had not participated in developing the case for plaintiffs, and, according to her, she did not “even know what [was] going on.” She had also noticed some of the bank people in the hall during recess talking back and forth. The plaintiffs themselves did not mingle or congregate with any jurors. At the conclusion of the testimony, defendants Cox and Curry moved for a mistrial, which was denied.

Although sensitive to the requirement of a fair and impartial jury free from outside influences, Alabama Gas Corp. v. American Furniture Galleries, 439 So.2d 33 (Ala.1983), this Court cannot conclude from these circumstances that the trial court was in error in refusing to grant the motion for a mistrial. No juror was called, and there was no other evidence proffered to establish either improper contact or that any juror was prejudiced. Casual and ordinary civilities, even between parties and jurors during recesses, do not suffice to avoid a verdict, if no sinister purpose and no effect upon a juror are apparent. Louisville & Nashville R.R. Co. v. Turney, 183 Ala. 398, 62 So. 885 (1913).

There being no reversible error under the issues raised by the defendants, the judgment must be, and it is, affirmed.

AFFIRMED.

MADDOX, JONES, SHORES and EM-BRY, JJ., concur.

      . The Bank raised no issue of jurisdiction throughout the proceedings in the trial court, and raises none on this appeal.


text:
    Myra R. CRADDOCK v. James H. CRADDOCK.
    Civ. 4213.
    Court of Civil Appeals of Alabama.
    June 20, 1984.

      Ruth S. Sullivan, Dadeville, for appellant.
    Mack Clayton, Alexander City, for appel-lee.
   EDWARD N. SCRUGGS, Retired Circuit Judge.

This is a child support modification case.

The parties’ 1977 divorce judgment granted to the wife $100 monthly support for their minor son pursuant to their settlement agreement. The wife filed the present litigation to modify that award by increasing it to $250 each month. After an ore tenus trial before the circuit court, the resulting January 31, 1984 judgment established those support payments from the husband to the wife at $175 per month. The wife appealed and, through able counsel, earnestly pleads that the trial court abused its discretion in not ordering the husband to provide more funds for the support of their fifteen year old son.

The case was well tried in the circuit court and counsel have thoroughly argued their opposing contentions in their briefs which were filed in this court. The parties are not in disagreement as to the law. Because of the application of the ore tenus rule, it is presumed that the circuit court’s decision and award were correct. The adjudication of a trial court as to the modification of child support on account of changed conditions, and the amount thereof, fall within the judicial discretion of that court and we are not authorized to disturb the holding of the circuit court unless it was not supported by the evidence or unless it was palpably wrong. Stubbs v. Puls, 429 So.2d 1071 (Ala.Civ.App.1983). Here the bone of contention is whether the trial court abused its discretion and was palpably wrong by not granting a greater increase in child support.

We have diligently studied the briefs and the entire record has been read and reread. We glean that a monthly award could have been supported by the evidence in amounts ranging from in excess of $300 to no modification of the provisions of the 1977 judgment. The husband’s gross income was around $12,000 annually in 1977 and he now nets about $1,675 monthly. However, evidence was presented to the trial court that his expenses equaled, if they did not exceed, his present net income from all sources. Evidence of a somewhat similar nature was given by the wife. The son testified that his needs were adequately provided for. The increase in age and in the needs of the son, inflation, and the means of the parents to provide support for the boy are among the most important factors to be considered by the trial court in determining the amount of child support, but the ability of the father to pay may not be ignored. Young v. Young, 376 So.2d 737 (Ala.Civ.App.1979). That case closely parallels this instant appeal in many particulars as to issues, law, and facts.

We conclude that the judgment of modification was supported by the evidence. The increase of support to $175 per month was well within the ambits of the testimony and the exhibits. The trial court’s decision was not palpably wrong. Accordingly, we are required to affirm the judgment of the trial court even if our view of the evidence might vary from that of the trial court, for we are required to affirm regardless of whether we might have reached a different result had we initially tried the case, since the trial court was not plainly wrong and its determination was supported by the evidence. Young v. Young, supra.

The trial court denied the wife’s prayer for an attorney’s fee. Such an award lies within the discretion of the trial court, which was not abused in this case in the absence of any proof before that court regarding the reasonable value of the legal services of the wife’s attorney. Dye v. Dye, 406 So.2d 420 (Ala.Civ.App.1981); Young v. Young, supra. In view of our affirmance, the wife’s request for an attorney’s fee on appeal is denied. Young v. Young, supra.

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 section 12-18-10(e), Code 1975, and this opinion is hereby adopted as that of the court.

AFFIRMED.

All the Judges concur.


author: BOWEN, Presiding Judge.

text:
    Eddy JOHNSON v. STATE.
    1 Div. 534.
    Court of Criminal Appeals of Alabama.
    March 20, 1984.
    Rehearing Denied April 24, 1984.
    Certiorari Denied July 13, 1984 Alabama Supreme Court 83-841.

      D.E. Brutkiewicz, Jr., Mobile, for appellant.
    Charles A. Graddick, Atty. Gen. and J. Anthony McLain and James F. Hampton, Sp. Asst. Attys. Gen., for appellee.
   BOWEN, Presiding Judge.

Eddy Johnson, the appellant, was indicted and convicted of robbery in the first degree. Sentence was 35 years’ imprisonment. Four issues are argued on appeal.

I

An arraignment can be waived by a defendant by failing to object to the lack of an arraignment until after the jury has returned a verdict. Watts v. State (Ms. 82-676, December 9, 1983) (Ala.1983); Fernandez v. State, 7 Ala. 511 (1845).

Here, Johnson was present with counsel when his case was called for trial. The trial judge read the indictment to the jury. At trial, Johnson took the witness stand in his own defense and denied committing the robbery. Although the trial judge found that there was nothing in the court reporter’s record to indicate that Johnson had been arraigned, he also noted that the docket sheet reflected that Johnson had been arraigned and pled not guilty. Defense counsel testified that there was no arraignment. In view of this conflicting evidence, the judgment of the trial judge should stand undisturbed. “When the trial judge sits as a finder of fact and hears and observes witnesses as they speak, his judgment is presumed correct and will not be reversed if it is supported by legal evidence and is not clearly wrong and unjust.” O’Leary v. State, 417 So.2d 217, 218 (Ala.1981).

For these reasons, we find no error.

II

Johnson argues that the warrantless arrest at his home was unlawful under Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980), and therefore his subsequent statement to the police was inadmissible. Payton held that, in the absence of exigent circumstances, “the Fourth Amendment ... prohibits the police from making a warrantless and nonconsen-sual entry into a suspect’s home in order to make a routine felony arrest.” 445 U.S. at 576, 100 S.Ct. at 1374-1375. See also United States v. Johnson, 457 U.S. 537, 102 S.Ct. 2579, 73 L.Ed.2d 202 (1982).

On April 1, 1982, the victim told Mobile Police Sergeant Wayne Farmer that Eddy Johnson had robbed her. On April 5th, Farmer learned Johnson’s address and went to his home. A female came to the door and, in response to Farmer’s question, indicated that Johnson was home. Johnson came to the door and was told by Sergeant Farmer that they “wanted him to come to town ... to talk to him about this incident.” Johnson complied with this request. Farmer testified that if Johnson had refused he would have gotten a warrant “if we had to”, but that Johnson came “voluntarily”.

“Payton, did not purport to decide, ... whether an initial consensual entry would justify a subsequent warrantless arrest.” United States v. White, 660 F.2d 1178, 1182-83 (7th Cir.1981) (upholding warrant-less entry into defendant’s apartment based on deceitfully obtained consent when entry served investigative purposes). See also United States v. Ruiz Altschiller, 694 F.2d 1104 (8th Cir.1982), cert. denied, Perry v. United States, — U.S. —, 103 S.Ct. 3117, 77 L.Ed.2d 1371 (1983).

Here, the record fails to show that Johnson’s Fourth Amendment rights were violated by the manner of his arrest. “Absent consent or exigent circumstances, a private home may not be entered to conduct a search or effect an arrest without a warrant.” Donovan v. Dewey, 452 U.S. 594, 598 n. 6, 101 S.Ct. 2534, 2538 n. 6, 69 L.Ed.2d 262 (1981) (emphasis added). The import of Detective Farmer’s testimony is that Johnson voluntarily went with the officers to headquarters. Farmer would have obtained an arrest warrant if Johnson had disagreed. These facts simply do not support a finding of a violation of Johnson’s Fourth Amendment rights. Although we do not encourage warrantless arrests at the home of the accused, the conduct of the police officers in this case is not that sought to be condemned in Payton.

Ill

Johnson argues that the State failed to lay the proper predicate for the admission of his statement because Sergeant Farmer was not constantly in Johnson’s presence and could not testify that no other officer talked to Johnson.

Farmer’s testimony shows that he was with Johnson from the time they picked him up at his house and read him his Miranda rights until Johnson gave a statement except for the few times Farmer stepped out of the office. Farmer stated that he was “sure (he) probably left the room we were in” on “several occasions” but that he “was never gone for over probably two minutes at a time.” Farmer testified that there “were people in and out of the office” while he was in the office with Johnson. Farmer “didn’t believe” any statements were made to Johnson by any other officers while he was gone. There is absolutely no testimony that anyone threat ened or improperly questioned Johnson in any manner at any time.

Here also, Johnson signed a printed waiver of rights form before giving his oral statement. Reviewing all the facts and circumstances of this case, we find that the confession was properly admitted. The State, “having established by the preliminary proof the voluntary nature of the confession, was not required ... to array for interrogation every person who might have had access to or conversation with the prisoner during his incarceration in order to remove the prima facie presumption of involuntariness.” Logan v. State, 251 Ala. 441, 444, 37 So.2d 753, 755 (1948); McCovery v. State, 365 So.2d 358, 361 (Ala.Cr.App.1978).

IV

Finally, Johnson contends that the victim’s in-court identification should have been suppressed because her identification was tainted and unreliable.

In his brief on appeal, Johnson lists the following facts from the hearing on his motion to suppress to support his argument:

“(1) A police officer, incorrectly identified as Sgt. Wayne Farmer by the victim, brought one single picture to the hospital for the victim to identify. He asked her, ‘Was that the fellow?’ (Detective David Barnes was the officer who showed Johnson’s photograph to the victim).
“(2) The victim gave a description of the man that attacked her as being 5'10" and 150 pounds. Sgt. Farmer testified the Defendant was between 6'2" and 6'3". “(3) The victim testified that she saw the Defendant on the day of the preliminary hearing outside the courtroom talking. (The Defendant had not made bond and was in fact in the jail slot prior to being brought into the Court.)
“(4) The victim was notified by phone on the morning of the trial and told that the man who robbed her was going to be in court that morning.
“(5) Sgt. Farmer or District Attorney Don Bebee told the victim that the man who robbed her was going to be sitting at the defense table. (Her actual response was ‘I reckon so.’).
“(6) She was told that Eddy Johnson ‘would be down here’ for the trial.
“(7) Neil Hanley testified that at the preliminary hearing, the victim had an opportunity to clearly observe the Defendant but failed to recognize him.
“(8) The victim did tell Sgt. Farmer that the assailant’s name was Eddy and he had done yard work for her.”

He also contends that the following facts adduced during the trial support his argument for suppression of the in-court identification.

“(1) The assailant came to the victim’s house at night between 7:00 and 8:00 P.M.
“(2) The victim testified that the man who assaulted her was named Eddy Jones. She was corrected by the District Attorney, over the objection of the Defendant.
“(3) The victim testified that there were other people who did yard work for her.
“(4) On the night of the attack, the victim had taken medication for pressure.
“(5) The victim did not have her glasses on when she was assaulted.
“(6) Eddy Johnson testified that he is 6'3' and weighs 183 pounds.”

In this case the seventy-seven year old victim was robbed and raped by a single individual. After the attack and before she was taken to the hospital, she told Sergeant Farmer that “it was the man who done her yard work for her” and his name was “Eddy”. The victim testified that she did not identify Johnson at the preliminary hearing because someone obstructed her view: “I couldn’t recognize him because it was a lady when I turned to look in the man’s face, the lady turned too — the lady.”

“I saw the one sitting in the corner, but when I looked I couldn’t see his face good. When I looked it was a lady there at the table — she moved that way and he moved that way. When I turned my head to try and see his face, she moved that way. But I couldn’t see his face good but I remember that it was him, but I didn’t say it because I wasn’t sure.”

However, the victim also testified that she recognized her assailant standing outside the courtroom before the preliminary hearing. She testified that before trial someone called her and told her “they was going to have Eddy Johnson’s trial today, and for me to come down” and that Johnson “would be down here.”

Attorney Neil Hanley testified as a defense witness on the motion to suppress. He stated that at the preliminary hearing Johnson “came out of lockup.” Apparently, this contradicted the victim’s testimony that Johnson was standing outside the courtroom. Hanley also stated that at the preliminary hearing the assistant district attorney was standing “almost beside” Johnson and, when asked, the victim still could not identify her assailant. Hanley testified that there was no one standing between the victim and Johnson and that Johnson was sitting in the middle of the front row and not in the corner as the victim testified.

At the preliminary hearing, the judge made a finding of no probable cause when the victim could not identify her assailant.

Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967), established a due process right to exclude unreliable identification testimony that results from procedures that are both unnecessarily suggestive and conducive to irreparable mistaken identification. Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972), established the rule that, where the witness’s in-court identification arguably stems from a suggestive out-of-court identification, the question is “whether under the ‘totality of the circumstances’ the identification was reliable even though the confrontation procedure was suggestive”, 409 U.S. at 199, 93 S.Ct. at 382, and whether there was a substantial likelihood of mis-identification. Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977), held that, where a pretrial identification is obtained by a procedure that is both suggestive and unnecessary, “reliability is the linchpin in determining the admissibility of identification testimony”, 432 U.S. at 114, 97 S.Ct. at 2253, and that the reliability of the identification must be weighed against the corrupting effect of the suggestive identification procedure itself. However, identification evidence derived from an unnecessarily suggestive source need not be excluded if the totality of the circumstances indicates its reliability.

Here, the only hints of suggestiveness in the pretrial identification procedures are the facts that the victim was shown a single photograph of the man she had previously identified by name and occupation as being her assailant, and that someone told her that Johnson would be in court.

It is clear to this Court, as it was to the trial judge, that the victim’s identification is based upon what she observed or thought she observed during the assault. The trial judge accurately stated the situation:

“(T)he way I see this thing if this identification was based solely upon that one photograph shown to her, I would probably grant your motion in no time flat. But since identification is now made not from that photograph but on the fact that she knew the man before the incident, that he had the relationship of having been an employee, and that she, of course, being the victim of the robbery— alleged robbery and rape — certainly would have been able to be close enough to him to recognize the man as the one who worked for her. I don’t think there is any question in my mind that she can identify him. Whether it’s an accurate identification is a matter for the jury. But I don’t think I can suppress it.”

Here, we think that it is clear that the in-court identification stems from an independent source and is not the result of any unfair pretrial confrontation. Brazell v. State, 369 So.2d 25, 29 (Ala.Cr.App.1978), cert. denied, Ex parte Brazell, 369 So.2d 31 (Ala.1979). “(I)t is incumbent upon a defendant to establish that the confrontation procedure in fact was suggestive prior to reaching the threshold ‘totality of the circumstances’ test of reliability.” United States v. Briggs, 700 F.2d 408, 412 (7th Cir.), cert. denied, Schlacks v. United States, — U.S. —, 103 S.Ct. 2129, 77 L.Ed.2d 1307 (1983).

While the quality of the victim’s description of her assailant and her failure to identify him at the preliminary hearing do warrant cause for concern, these factors go to the weight and credibility of the victim’s identification rather than its admissibility. “(A) witness’s prior inability to identify a defendant goes to the credibility of the in-court identification and not to its admissibility, and thus raises a proper question of fact for the jury to determine.” Briggs, 700 F.2d at 413.

“Failure to identify a defendant does not automatically bar the testimony of a witness. United States v. Serlin, 7 Cir., 538 F.2d 737, 747-748. The failure of a witness to identify presents ‘nothing more than a matter for factual argument to the jury.’ United States v. Scarpellino, 8 Cir., 431 F.2d 475, 477. The effect is on the weight, not the efficacy, of the evidence. United States v. Rizzo, 7 Cir., 418 F.2d 71, 81, cert. denied, 397 U.S. 967, 90 S.Ct. 1006, 25 L.Ed.2d 260.”
United States v. Skipworth, 697 F.2d 281, 284 (10th Cir.1983).
“The fact that eye witnesses to an occurrence cannot make a positive identification of an individual from an examination of photographs of a number of persons, does not necessarily detract from the validity of their in-court identification where they see the individual in person. The weight to be given to their in-court identification is for the jury to determine.”
United States v. Black, 412 F.2d 687, 689 (6th Cir.1969), cert. denied, 396 U.S. 1018, 90 S.Ct. 583, 24 L.Ed.2d 509 (1970).

See also United States v. Hamilton, 684 F.2d 380, 383 (6th Cir.), cert. denied, 459 U.S. 976, 103 S.Ct. 312, 74 L.Ed.2d 291 (1982) (“Muszynski’s inability to pick Hamilton out of the photo array did not render his in-court identification invalid. United States v. Dobson, 512 F.2d 615 (6th Cir. 1975). The weight to be given to his identification was a jury question. Id. at 616.”).

Support for this principle is found in Alabama law. “The fact that the witness was unable to make an identification of the defendant from the photographic line-up conducted the night of the crime does not require the exclusion of his in-court identification, but rather goes to the weight and credibility of his testimony.” Carter v. State, 406 So.2d 1076, 1077 (Ala.Cr.App.1981). “The discrepancies or contradictions in (the victim’s) testimony are factors bearing on the credibility of the witness and concern the weight and probative value to be given his testimony by the jury. These factors do not concern the admissibility of (the victim’s) testimony.” Phillips v. State, 409 So.2d 918, 920 (Ala.Cr.App.1981).

The “confused nature” of the victim’s identification testimony does not necessarily result from a misidentification but may be caused by the victim’s “utter lack of knowledge concerning courtroom procedures; from confusing and repetitious questions on cross-examination; and (the victim's) apparent inability to estimate distances.” Herrod v. State, 342 So.2d 1388, 1390 (Ala.Cr.App.1977). “The question of whether the victim’s identification was positive or not goes to the weight and credibility of her testimony, and was a question for the jury.” Williams v. State, 348 So.2d 1101, 1104 (Ala.Cr.App.), cert. denied, Ex parte Williams, 348 So.2d 1105 (Ala.1977). See also Jones v. State, 415 So.2d 1233, 1236 (Ala.Cr.App.1982). Cf. United States v. Gambrill, 449 F.2d 1148, 1158 (D.C.Cir.1971) (Witness’s “complete inability to select Gambrill at the first lineup held within six days of the crime is a circumstance that compels us, in view of the intervening exhibition of the two single photographs, and the 10-man lineup photograph and the strong suggestiveness that comes from seeing two Negroes seated at counsel table, both of whom she had viewed at the lineup, to conclude that her identification of appellants cannot stand.”). See also Gholston v. State, 338 So.2d 454 (Ala.Cr.App.1976). “We have repeatedly held that it is the sole province of the jury to determine what credence should be given to testimony of witnesses going to the identity of an accused.” Strickland v. State, 348 So.2d 1105, 1110 (Ala.Cr.App.), cert. denied, 348 So.2d 1113 (Ala.1977).

The judgment of the circuit court is affirmed.

AFFIRMED.

All Judges concur.


author: TAYLOR, Judge.

text:
    Jeffrey H. RUDELL v. STATE.
    1 Div. 646.
    Court of Criminal Appeals of Alabama.
    March 20, 1984.
    Rehearing Denied April 24, 1984.
    Certiorari Denied July 13, 1984 Alabama Supreme Court 83-828.
    Thomas M. Haas, Mobile, for appellant.
    Charles A. Graddick, Atty. Gen. and T.A. Harding Fendley, Asst. Atty. Gen., for ap-pellee.
   TAYLOR, Judge.

Appellant in this case, Jeffrey H. Rudell, was convicted of the sale of a controlled substance and sentenced to 15 years’ imprisonment.

The facts show that Rudell, a licensed physician, gave several prescriptions for Methaqualone to William Rhegness, an undercover agent of the Alabama Bureau of Investigation.

The evidence tended to show that appellant failed to administer a proper medical examination before issuing the prescriptions to Investigator Rhegness.

Appellant contends that a licensed physician cannot be convicted of the sale of a controlled substance under § 20-2-70, Code of Alabama 1975, if the prescription in question involves a drug that the physician is legally authorized to prescribe, citing Evers v. State, 434 So.2d 804 (Ala.Cr. App.1982), rev’d, 434 So.2d 813 (Ala.1983).

The Evers case was factually very similar to the case at bar. In that case, this court held that § 20-2-70 was applicable to licensed physicians. The pertinent part of that section reads as follows:

“(a) Except as authorized by this chapter, any person who possesses, sells, furnishes, gives away, obtains or attempts to obtain by fraud, deceit, misrepresentation or subterfuge or by the forgery or alteration of a prescription or written order or by the concealment of material fact or by use of false name or giving a false address controlled substances enumerated in schedules I, II, III, IV and V is guilty of a felony and, upon conviction, for the first offense may be imprisoned for not less than two nor more than 15 years and, in addition, may be fined not more than $25,000.00.”

In Evers, we held that a physician who abused his authority by writing a prescription for a controlled substance for no legitimate medical purpose fell outside the “Except as authorized” language of the statute.

The Supreme Court, however, reversed that decision and found that § 20-2-70(a) does not apply to a licensed physician who writes a prescription within the scope of his registration.

The Supreme Court’s decision in Evers controls, and on that authority, we reverse the instant case.

REVERSED AND RENDERED.

All the Judges concur except HARRIS, J., who concurs in result only.


text:
    Jerry JONES, alias v. STATE.
    7 Div. 52.
    Court of Criminal Appeals of Alabama.
    March 20, 1984.
    Rehearing Denied April 24, 1984.
    Certiorari Denied July 13, 1984 Alabama Supreme Court 83-848.

      Virginia A. Vinson, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen., and Jean Williams Brown, Asst. Atty. Gen., for appellee.
   TAYLOR, Judge.

Jerry Jones, also known as Jerome Pel-mer, also known as Jerry Jhone, was charged in Shelby County, Alabama, with the murder of his brother-in-law. He was convicted, and because of his three prior felony convictions, he was sentenced to life without parole under the Habitual Felony Offenders’ Act. On appeal he makes three contentions.

I

The appellant first contends that he had sufficiently established his self-defense claim. Evidence was presented to the jury of prior difficulties between the appellant and his wife’s brother, the deceased. There appears to have been evidence on both sides of the question of self-defense. The defense of self-defense is an issue to be determined in a criminal prosecution by the jury. Atchley v. State, 393 So.2d 1034 (Ala.Cr.App.1981); Warren v. State, 380 So.2d 305 (Ala.Cr.App.1979), cert. denied, 380 So.2d 307 (Ala.1980); Moore v. State, 364 So.2d 411 (Ala.Cr.App.), cert. denied, 364 So.2d 416 (1978). This contention is without merit.

II

Appellant contends that the trial court should have charged on the “lesser included offense of criminally negligent homicide.” In order to preserve for review the fact of the trial court’s not charging on lesser included offenses, written requested charges on the lesser included offense ought to have been requested of the court by the defendant. Harris v. State, 412 So.2d 1278 (Ala.Cr.App.1982); Harville v. State, 386 So.2d 776 (Ala.Cr.App.1980).

From the record it appears that no such charges were ever requested. The court did not err in this respect.

III

Appellant finally contends that the Alabama Habitual Felony Offenders Act violates the Eighth Amendment prohibition against cruel and unusual punishment. We have addressed this issue in a number of cases. Even without the prior felony convictions, in this case, where the appellant fired three shots into an unarmed victim, the punishment appears to have been in proportion to the crime. We hold that this contention is without merit.

This case is due to be affirmed.

AFFIRMED.

All the Judges concur.