author: BRADLEY, Judge.

text:
    Leonard Ray WILSON, Sr. v. Peggy D. YORK.
    Civ. 3828.
    Court of Civil Appeals of Alabama.
    Nov. 2, 1983.
    Rehearing Denied Dec. 7, 1983.
    Certiorari Denied Feb. 24, 1984 Alabama Supreme Court 83-359.

      Leonard Ray Wilson, Sr., pro se.
    Rodney A. Max and Elizabeth B. Panta-zis, of Denaburg, Schoel, Meyerson, Ogle, Zarzaur & Max, Birmingham, for appellee.
   BRADLEY, Judge.

On January 6, 1983, and after an ore tenus hearing, the father was held in contempt of court for failure to pay child support in the amount of $2,475. The court also awarded interest in the amount of $297 on that amount of arrearage, and the court awarded an attorney’s fee of $1,945.35. The mother filed her petition for the rule nisi on October 16, 1981.

After the denial of his posttrial motion, the father seeks review of the January 1983 order by way of appeal. The proper method for review of a contempt order when the person in contempt is not in jail is by writ of certiorari. The father is not in jail; therefore, we will consider his appeal as a writ of certiorari. Matthews v. Matthews, 404 So.2d 692 (Ala.Civ.App.1981).

The father’s first issue questions the order of contempt on the ground that the evidence fails to show that he was able to pay the $2,475 in child support due in 1981 and 1982.

“The scope of review in contempt cases on certiorari is limited to questions of law. Ex parte Abercrombie, 277 Ala. 479, 172 So.2d 43 (1965). The weight and sufficiency of the evidence is not reviewable by us, for we are concerned only with whether there is any evidence to support the trial court’s decree. Hardy v. Hardy, 46 Ala.App. 249, 240 So.2d 598 (1970).”

Wilson v. Freeman, 376 So.2d 1096 (Ala.Civ.App.1979).

The evidence shows that the father was due to pay $165 per month in child support and that he failed to make those payments in the amount of $2,475 in 1981 and 1982. The father, who is self-employed, had a gross income in 1981 of $5,252.32, and $800 in the first three months of 1982. In addition the father received about $3,000 from his mother in 1981 that he said was a loan.

The evidence also reveals that the father did not have expenses such as rent, mortgage payments, or other type installment payments due to a bankruptcy proceeding. He did, however, testify that he had living expenses of about $700 per month.

The father stated that he lived alone in his three bedroom house with the usual furniture and furnishings. In addition he valued his library, which contained about two thousand volumes and many periodicals, at about $10,000.

The record also reflects that in addition to the living expenses enumerated by the father he also paid out in 1981 $112 to have his car washed and cleaned; paid out $74 in political contributions; paid out $87.50 for various publications; donated $440 to the Macedonia Church of Christ; and paid out $317.75 in miscellaneous expenses. The total of this is $1,031.25.

On the basis of the evidence set out above, we find that the trial court’s contempt order is supported by the evidence.

The father’s next contention is that the trial court improperly assessed him with attorney’s fees after holding him in contempt for failure to pay child support and that his threatened incarceration by the court for failure to pay said attorney’s fees is an unconstitutional imprisonment for nonpayment of a debt.

This same argument was presented to this court by the father in his seventh appearance before this court as a result of a contempt citation for failure to pay child support. See Wilson v. Freeman, 402 So.2d 1004 (Ala.Civ.App.1981). The answer we gave in that case is decisive of the issue raised above, i.e. attorney’s fees were properly assessed and the contempt order was not based on nonpayment of attorney’s fees and the payment of the attorney fee so assessed is not a purgative condition of the contempt order. Hence, there is no threatened imprisonment for nonpayment of a debt.

The father’s final issue is that the trial eourt erred in assessing interest on the arrearage award.

We held in Osborne v. Osborne, 57 Ala. App. 204, 326 So.2d 766 (Ala.Civ.App.1976) that interest was properly chargeable on delinquent child support payments from the day they became due and payable to the day they were paid. Therefore, no error was committed by the trial court in assessing interest on the delinquent child support payments.

The judgment of the trial court is affirmed.

The defendant-mother is awarded an attorney’s fee on appeal of $500.

AFFIRMED.

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


source: Caselaw Access Project

author: HOLMES, Judge.

license: Public Domain

text:
    F.H. SANDERS, as agent for John T. and Karen Y. Harden v. BOARD OF ADJUSTMENT OF the CITY OF CHICKASAW.
    Civ. 3846.
    Court of Civil Appeals of Alabama.
    Nov. 23, 1983.
    Rehearing Denied Dec. 21, 1983.
    Certiorari Denied Feb. 24, 1984. Alabama Supreme Court 83-379.

      Jim H. Fernandez of Allen & Fernandez, Mobile, for appellant.
    William H. McDermott of McDermott, Slepian, Windom & Reed, Mobile, for appel-lee.
   HOLMES, Judge.

This is a zoning case.

The Circuit Court of Mobile County determined that the zoning ordinances of Chickasaw, Alabama, prohibited the property owners from renting a garage apartment to a second family as living quarters in an area zoned for one- and two-family lots. The trial court also denied the property owners a use variance. The property owners now bring this appeal.

On appeal the property owners contend that the Chickasaw zoning ordinances do not prohibit the use of garage apartments as living quarters for a second family in one- and two-family residential zones. Alternatively, the property owners contend that if garage apartments are prohibited, a variance should have been allowed nonetheless.

The property owners own a lot with a single family dwelling and detached garage. The garage has living quarters over the area where the automobiles are kept. The garage apartment has a kitchen and a bathroom and its own utility connections.

After purchasing the lot, the property owners were informed by the city that the garage apartment could not be rented to a second family as living quarters because the zoning ordinances prohibited it. The property owners then brought the matter before the Board of Adjustment to contest the ruling or, failing that, to obtain a variance. The Board of Adjustment affirmed the administrative ruling and the property owners appealed that decision to the Circuit Court of Mobile County.

The circuit court upheld the Board of Adjustment’s ruling and denied the property owners’ request. The property owners now appeal to this court. We find no error requiring reversal and affirm.

First, we note that construction of a zoning ordinance is a question of law. Civitans Care, Inc. v. Board of Adjustment, 437 So.2d 540 (Ala.Civ.App.1983). Statutes or ordinances which impose restrictions on the use of private property are strictly construed and their scope cannot be extended to include limitations not therein included or prescribed. Civitans Care, Inc. v. Board of Adjustment, 437 So.2d 540 (Ala.Civ.App.1983).

The garage apartment in the instant case is located on a lot zoned R.2, a- one- and two-family residential district. The ordinances give a general description of R. 2 as being a zone where the “principal uses of land may range from single family to two-family, semi-attached buildings.” The ordinances define a two-family semi-attached building as having a common wall. The garage in this instance is detached.

The ordinance concerning permitted building and land uses is more specific. That section reads:

“Property and buildings in an R. 2 One and Two Family Residential District shall be used only for the following purposes:
1. Any use permitted in an R. 1 Single Family Residential District.
2. Semi-attached two family dwelling.
3. Private day nurseries and kindergartens.
4. Accessory buildings and/or uses customarily incidental to the above uses when located on the same lot.” (Emphasis supplied.)

The above ordinance clearly indicates that the only permitted uses are those listed. It has been stated previously that courts must recognize that zoning is a legislative function committed to the sound discretion of municipal legislative bodies and not to the courts. Local governing authorities are presumed to have a superior opportunity to know and consider the interests involved and to consider the general welfare of the area involved. City of Birmingham v. Morris, 396 So.2d 53 (Ala.1981). In short, the municipal legislative body of Chickasaw has seen fit to limit the R.2 zone as stated above and absent a showing that the particular restrictions are arbitrary or capricious, which we do not find, the legislative body’s discretion will not be diminished by judicial interference. City of Birmingham v. Morris, 396 So.2d 53 (Ala.1981). In other words, the legislative body of Chickasaw has the power to impose any restrictions or limitations on land and building use as long as such limits are not capricious or arbitrary.

That being so, we must now look to see if a detached garage apartment fits any of the categories of permitted uses. We find that it does not.

The first category permits any use allowed in R. 1 single-family districts. Those uses are limited, insofar as we are concerned, to single family dwellings and accessory structures, but not including house trailers or mobile homes. That section is not applicable in that two families will be on one lot if the garage apartment is rented.

The second permitted use allows two-family dwellings but they must be semi-attached. As mentioned previously, the garage apartment in question does not fit that definition.

The third category is obviously not applicable.

The property owners, through able and distinguished counsel, argue strongly that the garage apartment is allowed under the fourth category permitting accessory buildings and/or uses customarily incidental to the above uses when located on the same lot. We are not convinced.

The Chickasaw zoning ordinances define accessory building and accessory use as:

“(b) ACCESSORY BUILDING OR STRUCTURE: A subordinate building or portion of a main building, the use of which is incidental to that of the main building or structure.
“(c) ACCESSORY USE: A use customarily incidental, appropriate and subordinate in the principal use of land or building and devoted exclusively to the main use of the premises." (Emphasis supplied.)

Taking the ordinary meanings of the words and giving them a reasonable interpretation in the context of the zoning laws, a garage apartment does not fit in the above definitions.

If the garage or accessory building is used by a second family as a dwelling place, the use is no longer “incidental” to the main use; the garage apartment’s principal use is as a dwelling place separate and apart from the main building. The property owner’s contention that the garage is principally a storage area for automobiles and secondarily a dwelling place is not a reasonable construction of the ordinance. Therefore, the use of the garage as a dwelling place is not permitted under the fourth category. The legislative body of Chickasaw has seen fit to restrict the use of land and property, as seen above, which it has the power to do. A reasonable interpretation of those restrictions excludes detached garage apartments as a permitted use.

The property owners’ second and final contention is that the trial court erred in refusing to grant a use variance. We find no error and affirm.

In situations where a variance is at issue, the primary question is whether due to special conditions, a literal enforcement of a zoning ordinance will result in unnecessary hardships. Pipes v. Adams, 381 So.2d 86 (Ala.Civ.App.1980). Whether a variance should be granted depends upon the facts of each case. Zoning Bd. of Adjustment v. Wright, 283 Ala. 654, 220 So.2d 261 (1969). And when the evidence is heard ore tenus, as in the instant case, the findings of the trial court are presumed correct and will not be set aside except for plain and palpable abuse of discretion. Pipes v. Adams, 381 So.2d 86 (Ala.Civ.App.1980).

In the present case the property-owners contend that they had negotiated and purchased the property with the understanding that the garage apartment could be rented. The property owners contend that it will work an “unnecessary hardship” to prohibit them from renting the apartment in that they will “lose” rental income that formed a major part of their decision to purchase the property.

“ ‘Variances from the terms of the zoning ordinance should be permitted only under peculiar and exception circumstances. Hardship alone is not sufficient. The statute says “unnecessary hardship,” and mere financial loss of a kind which might be common to all of the property owners in a use district is not an ‘unnecessary hardship.’ ”

Priest v. Griffin, 284 Ala. 97, 101, 222 So.2d 353, 357 (1969), quoting from Nelson v. Donaldson, 255 Ala. 76, 50 So.2d 244 (1951). See also Alabama Code § 11-52-80 (1975).

In the present case it is clear that the property owners will suffer a financial loss of a kind which might be common to all of the property owners in similar situations. In other words, the property owners in the present case have not shown that they will suffer an “unnecessary hardship,” nor have they shown “peculiar and exceptional” circumstances to warrant a variance.

This case is due to be and is affirmed.

AFFIRMED.

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


text:
    Larry WOLFE v. Mahlon McCLUNG.
    Civ. 3945.
    Court of Civil Appeals of Alabama.
    Dec. 7, 1983.
    Rehearing Denied Jan. 4, 1984.
    Certiorari Denied Feb. 24, 1984 Alabama Supreme Court 83-414.
    Ronald A. Drummond, Scottsboro, for appellant.
    H.R. Campbell, Scottsboro, for appellee.
   EDWARD N. SCRUGGS, Retired Circuit Judge.

This is a conversion case.

After a nonjury trial, the circuit court expressly found that the defendant converted the Ford van in question on December 17, 1981, and a judgment was rendered for the plaintiff for $3,500. The defendant appealed.

Because of the attendant ore tenus presumptions which are accorded to the factual findings of the trial court, we will primarily summarize only some pertinent portions of the evidence that tend to uphold those findings.

Roma Taylor was, and is, the registered owner of the 1975 Ford van in controversy, having purchased it in 1979. She authorized the defendant to trade the van for her in 1981. At that time she was the defendant’s girl friend. They were married in 1982.

Apparently, in April or May 1981, Houston Johnson traded a 1978 pickup truck to the defendant for that van and for the defendant’s motorcycle. The defendant delivered possession of the van and motorcycle to Johnson who gave possession of the pickup truck to the defendant. The defendant never gave any title to either the van or to the motorcycle to Johnson. Consequently, Johnson never presented the title of the pickup truck to the defendant. Title to the pickup truck was in Ford Motor Company, but Johnson testified that he could obtain title from them at any time upon request. The defendant has possessed the pickup truck since the trade. Johnson carried the van and the motorcycle to his home. The motorcycle was sold by Johnson after he rode it for several months.

Johnson sold the van to the plaintiff on June 27,1981, for $2,000, which was paid to Johnson at that time. The plaintiff was given a bill of sale to the van by Johnson. Both parties and also Johnson worked together at Bellefonte in Jackson County. The plaintiff testified that, before he traded with Johnson, he asked the defendant about the condition of the van. The defendant told him that it was in good shape. The defendant did not inform the plaintiff that Johnson did not have good title to the van. The parties had known each other for years and were close friends.

The plaintiff was given possession of the van in June 1981, when he purchased it from Johnson. For the following three months, he made extensive repairs to the vehicle and, for the next three months, he used it on workdays to transport for hire eight or nine co-workers from Athens to Bellefonte and return. The plaintiff received a warning ticket from a state trooper and he discussed the ticket with the defendant, who furnished to him a current sticker to place upon the license plate.

On December 17, 1981, the plaintiff had driven the van, accompanied by his riders, from Athens and left the van at his customary parking place at Bellefonte. At the end of their work shift, the van was missing. The plaintiff called the defendant that night and the defendant admitted that he had taken the van and offered to permit the plaintiff to use another of the defendant’s vans until the problem was settled. That conversation was denied by the defendant. Some pillows, raincoats and other personal property of the plaintiff and of his riders were in the van when it was taken and those personal effects were returned to the plaintiff by the defendant about a week later.

The defendant testified that the van just appeared on December 17 at one of the locations where he lived part-time, and that he did not know who brought it there but that it was not he. The defendant’s wife, the former Roma Taylor, swore that the van was still at their home at the time of the trial, that she was still the title holder of the van, that she had nothing to do with going and getting the van and bringing it to Gadsden from Bellefonte, that she does not know who did so, and that the defendant has told her that he did not get the van.

The plaintiff further testified that he was unaware of Roma Taylor’s title to the van until he had it traced through Montgomery after the van had been taken and that, at no time, did the defendant inform the plaintiff that the van belonged to her.

There was a conflict as to much of the above evidence.

The plaintiff contends that he was entitled to recover under the following statute: “Mere possession of a chattel, if without title or wrongfully, will give a right of action for any interference therewith, except as against the true owner or the person wrongfully deprived of possession.” § 6-5-261, Code of Ala. (1975).

That code section merely declares the common law principle that possession of personal property is evidence of title and that proof of possession in the plaintiff will sustain an action for trover and conversion as against a wrongdoer without title who converts or takes the chattel from the possessor. Arledge v. J.D. Pittman Tractor Co., Inc., 236 Ala. 131, 181 So. 91 (1938); Birmingham Southern R. Co. v. Goodwyn, 202 Ala. 599, 81 So. 339, on remand, 17 Ala.App. 34, 81 So. 342 (1919).

Perhaps the law in that respect was most clearly enunciated in the ancient decision of Lowremore v. Berry, 19 Ala. 130 (1851). It was a case for the conversion of a promissory note. The plaintiff had possessed the note but was not the owner of it. Our Supreme Court held:

“[I]t is contended, that as the note was not endorsed by the payee, the legal title is still in him; consequently that the plaintiff cannot recover, because he failed to show any legal title to the note. If the action had been founded on the note, this objection would have been fatal to the plaintiffs right to recover. But it is not. The gist of the action is the wrongful conversion, and we think the principle is well settled, that possession alone is sufficient evidence of title to enable the plaintiff to recover in an action of trover, against a wrong doer, although the title to the chattel may not be in the plaintiff, but in another; and if the defendant would protect himself by showing an outstanding title in another, he must connect himself with it, by showing that he acted under the authority of him who was in fact the owner. In the case of Joyce v. Dozier, 8 Port. 303, it was held that the mere prior possession was sufficient to sustain the action of detinue against a trespasser, and that he could not defend himself by showing an outstanding title in another, without in some manner connecting himself with such title. To the same effect is the case of Duncan v. Spear, 11 Wend. 54. We think the principle recognized by these eases is decisive to show that the plaintiff might have recovered, if he had satisfied the jury of his previous possession of the note, notwithstanding the legal title to the note, and the right to sue for the money due thereby, were shown to be in the payee.”

19 Ala. at 130-31. See also Dollar v. McKinney, 272 Ala. 667, 133 So.2d 673 (1961); Alabama Great Southern Railroad Co. v. Jones, 71 Ala. 487, 493 (1882); Restatement (Second) of Torts § 224(A).

Here, the plaintiff had absolute dominion over and control of the van for almost six months, which met the type and character of possession which is required by § 6-5-261, and Birmingham Southern R. Co. v. Goodwyn, supra. In applying the Lowremore case to the instant matter, the plaintiffs possession of the van was sufficient to enable the plaintiff to recover against the defendant although title to the van was in Roma Taylor, who was his girl friend on December 17, for there was no evidence that this defendant acted for her in taking the van on that date — indeed, they both denied that he so acted for her. The plaintiffs testimony that the defendant admitted to him that he had gotten the van sufficed as proof that the defendant converted the van on December 17. One of the methods by which a conversion may occur is when a defendant exercises dominion over personal property in exclusion or definance of the plaintiffs right of possession. Roebuck Auto Sales, Inc. v. Wallace, 293 Ala. 231, 301 So.2d 546 (1974).

When the evidence is ore tenus, the findings of a trial court based upon competent evidence are presumed to be correct and will not be disturbed on appeal if supported by the evidence or any reasonable inference therefrom, unless they are plainly and palpably erroneous and manifestly unjust. State v. St. Paul Fire & Marine Insurance Co., Inc., 431 So.2d 1237 (Ala.1983); Cash v. Mayo, 429 So.2d 1092 (Ala.Civ.App.1983). There was evidence before the trial court which supported its findings and its holding was neither palpably wrong nor clearly unjust.

We are required to affirm this judgment of the learned trial court under the evidence and the law. Because this case must be affirmed for the foregoing reasons, it is not essential that we determine the true ownership of the van. As between this plaintiff and this defendant it is immaterial that Roma Taylor had, and has, title to the van, for the plaintiff is, nevertheless, entitled to recover from the defendant.

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

AFFIRMED.

All the Judges concur.


text:
    Fouad M. BASIOUNY v. Samiha E. BASIOUNY.
    Civ. 3937.
    Court of Civil Appeals of Alabama.
    Jan. 18, 1984.

      Ira DeMent and Joan Van Almen of DeMent & Wise, Montgomery, for appellant.
    Thomas E. Jones, Auburn, for appellee.
   HOLMES, Judge.

This is a divorce case.

The trial court, after an ore terms hearing, divorced the parties, made a division of property, and required the husband to pay child support. The husband appeals and we affirm.

The husband, through able counsel, raises several issues. He first contends that the trial court was without jurisdiction to enter the divorce decree because there was not a proper complaint pending in the trial court. The husband next contends that the trial court erred by refusing to recognize a prior Egyptian divorce decree. The husband’s final contentions are that the trial court erred in the division of property and the award of child support.

For purposes of clarity we will detail the pertinent facts as they relate to the specific issues in question.

I

The husband first contends that the trial court was without jurisdiction to enter a divorce decree because there was not a complaint pending before the court. The husband bases his contention on the fact that a prior divorce decree was set aside and then the instant decree entered without another filing of a complaint. This court believes that the husband’s contention is without merit.

In April 1982, the wife filed a divorce complaint. The husband did not answer and a default judgment was entered. Thereafter, the default judgment was set aside on the ground that the husband was not properly served. For some unknown reason the record before this court does not contain a copy of the court’s order setting aside the default judgment. However, both parties agree this did in fact occur.

After the default judgment was set aside, the husband was apparently, although this is not clear from the record, properly served. Be that as it may, the husband at that time filed a general answer to the “complaint heretofore filed.”

At the beginning of the hearing, the parties through their individual counsel clearly acquiesced, after a colloquy with the trial court concerning specific procedural matters, to proceed with the trial of the divorce.

It is now the husband’s position that the failure to refile the wife’s divorce complaint prevented the trial court from obtaining “jurisdiction” to enter the final divorce decree. In other words, the husband argues that the setting aside of the default judgment rendered the wife’s divorce complaint void and the trial court was without authority to proceed. We cannot agree.

The husband does not cite any authority, nor is this court aware of any authority, holding that the setting aside of a default judgment renders the prior complaint a nullity. Furthermore, and most importantly, the husband answered the complaint presumably served on him and made a general appearance. There was no objection at the trial level that the complaint was void.

Although the lack of subject matter jurisdiction may be raised at any time, this court believes that the complaint was effective; this is so in view of the absence of any authority to the contrary along with the fact that the husband answered the complaint and acquiesced in the trial of the divorce action. See Alabama Rules of Civil Procedure 8(f) and 15(b) regarding the liberal posture of the rules in order to effect substantial justice between the parties. Furthermore, as indicated above, there was no objection at trial to proceeding with the divorce action. The law clearly is that matters not raised at trial cannot be raised for the first time on appeal. Hutchins v. Shepard, 370 So.2d 275 (Ala.1979).

II

The husband next contends that the trial court erred in failing to recognize a prior Egyptian divorce.

A divorce obtained in a foreign country is recognized by comity. Prudential Insurance Co. v. Lewis, 306 F.Supp. 1177 (N.D.Ala.1969). In Alabama the rule of comity does not require the courts to recognize as valid a divorce rendered by a foreign jurisdiction on a showing of jurisdiction which would not support a domestic judgment. Crimm v. Crimm, 211 Ala. 13, 99 So. 301 (1924).

Viewing the record with the attendant presumptions, the following is revealed. The parties to this case are naturalized United States citizens. They were married in Egypt, their homeland, in 1969; shortly thereafter they came to the United States. Both parties have lived and worked here continuously since that time except for brief periods when the husband’s work required him to be out of the country. These were only temporary jobs and the family always intended to return to America.

Some time after the wife filed her divorce complaint in April 1982, the husband obtained an Egyptian divorce. At that time, the husband stayed two weeks in Egypt.

One of the requisites for an Alabama court to recognize a foreign decree is that one of the parties must be domiciled in the foreign country. Prudential Insurance Co. v. Lewis, 306 F.Supp. 1177 (N.D.Ala.1969).

Domicile requires residence at a particular place and an intent to remain there permanently, or for an indefinite length of time. Ambrose v. Vandeford, 277 Ala. 66, 167 So.2d 149 (1964). Domicile is also the place to which a person when he is absent has intention of returning. State ex rel. Rabren v. Baxter, 46 Ala.App. 134, 239 So.2d 206, cert. denied, 286 Ala. 732, 239 So.2d 214 (1970).

The trial court found that the husband was a resident of Macon County, Alabama, and therefore was not domiciled in Egypt and refused to recognize the divorce. In view of the presumptions accorded the trial court under the ore tenus rule, there is evidence to support the trial court’s determinations.

At the time of the Egyptian divorce, the husband stayed only two weeks in that country. He left a job and property in the United States. It can be safely inferred from the record that the husband intended to return to the United States, his job and his property. There is some question as to the effect of dual citizenship which we need not determine, but clearly both parties are United States citizens. There is no question that the wife was not domiciled in Egypt at the time of the Egyptian divorce and the record supports a conclusion that neither was the husband.

In view of the fact that neither party was domiciled in Egypt at the time of the foreign decree, the trial court was not in error in refusing to recognize the prior foreign divorce.

Ill

The husband’s final contentions are that the trial court abused its discretion in the division of property and in the amount of child support ordered paid.

The trial court has wide discretion in determining the division of property and the amount of child support and its decision on such matters will be presumed to be correct on appeal. Thompson v. Thompson, 377 So.2d 141 (Ala.Civ.App.1979); Kitchin v. Kitchin, 370 So.2d 1031 (Ala.Civ.App.1979).

In its decree the trial court ordered the parties’ house in Florida sold and the proceeds divided equally. The parties’ house in Macon County was awarded to the husband. The decree did not mention personal property; however, it can be gathered from the record that both parties are in possession of various items of personalty; presumably, the trial court intended the parties to retain those items in their possession. Clearly, this is an equitable division of property considering the facts and circumstances of this case. There was no substantial misconduct on the part of either party. Both of the parties worked throughout the marriage. The wife worked part-time when she was in school. In view of the presumptions accorded the trial court, we find no abuse of discretion in the division of property.

The trial court ordered the husband to pay $250 per month as child support for each of the two minor children. Again, we find no abuse of discretion requiring reversal.

The husband has a doctorate degree and he is employed by Tuskegee Institute in Macon County. He earns approximately $27,000 a year. Essentially, the husband takes the position that because the wife’s earnings are relatively equal to his earnings, the trial court abused its discretion in its award of child support.

The standard for determination of the amount of child support is based upon the needs of the child compared with the ability of the parent to pay. Jenkins v. Jenkins, 418 So.2d 137 (Ala.Civ.App.1982). Clearly the husband has the ability to pay. Furthermore, the husband was awarded the house in Macon County. Property division is also a factor to be considered in determining the amount of child support. Townsend v. Townsend, 337 So.2d 4 (Ala. Civ.App.1976).

In view of the above we find no error and affirm.

This case is due to be and is affirmed.

AFFIRMED.

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


text:
    B.F. GOODRICH COMPANY v. Franklin D. CAMPBELL.
    Civ. 3942.
    Court of Civil Appeals of Alabama.
    Jan. 18, 1984.
    Olin W. Zeanah and Larry Bradford of Zeanah, Donald & Hust, Tuscaloosa, for appellant.
    Robert V. Wooldridge, III of Wooldridge, Wooldridge & Malone, Tuscaloosa, for ap-pellee.
   HOLMES, Judge.

This is a workmen’s compensation case. After an ore tenus hearing, the trial court determined that the employee had sustained a ten percent permanent partial disability. The employer appeals through able counsel and we affirm.

The dispositive issues on appeal are (1) whether the trial court erred in finding a loss of ability to earn when the evidence reveals that the employee’s post-injury earnings equal or exceed his earlier earnings, and (2) whether the trial court erred when it taxed the cost of a medical deposition against the employer.

At the outset we are compelled to repeat the oft-quoted standard of review in workmen’s compensation cases; as we stated in Goodyear Tire & Rubber Co. v. Corfman, 424 So.2d 1326 (Ala.Civ.App.1982),

“[T]he trial court’s finding is conclusive if there is any evidence in the report that will support it. Legg v. Americold Compressor Co., 336 So.2d 1121 (Ala.Civ.App. 1976); Purser Steel, Inc. v. McEwen, 47 Ala.App. 263, 253 So.2d 56 (1971). This court can consider neither the weight nor the propriety of the trial court’s finding of fact. Our inquiry is limited to a determination of whether there is any evidence to support the trial court’s finding. Kroger Co. v. Millsap, 280 Ala. 531, 196 So.2d 380 (1967); Tidwell Industries, Inc. v. Kennedy, 410 So.2d 109 (Ala.Civ. App.1982); Legg v. Americold Compressor Co., supra."

Id. at 1327. With this standard of review in mind, we look at the evidence as presented in the trial court.

The employee, Franklin D. Campbell, is forty-six years old and a high school graduate. He has been employed at the B.F. Goodrich plant in Tuscaloosa since 1957, and has held his present position, that of an operator in the powerhouse, for about five years. Campbell described the powerhouse operator job as not very demanding physically because the majority of his time is spent monitoring automatic machinery. The “heavy work” involved stems from the job’s limited repair and maintenance duties.

Campbell’s medical evidence reveals a history of only minor back ailments prior to the October 10, 1981, on-the-job accident. On that date Campbell was standing on a fourteen-foot portable ladder, attempting to open a valve with a wrench, when the ladder moved unexpectedly. Campbell lost his balance and fell into a network of piping. He felt an immediate severe pain— which he described as a snap — in his back and side.

Campbell was treated by the company doctor and was hospitalized for eight days. Three weeks later he was released to return to work; however, he continued to visit the doctor weekly, led “relatively an inactive life” with a good deal of bed rest, and continued his exercise program and the use of heating pads. Campbell testified that after the accident he limited his activities in almost every aspect as he was consciously aware of a constant back pain at all times. Before the accident Campbell had led an active life building the houses his family had lived in, clearing land, baling hay, water skiing, showing horses, and hunting and fishing.

In March of 1982 Campbell again entered the hospital because the pain in his back had increased to the point where it was intolerable. From March 21 to March 26 Campbell was treated with conservative therapy and then released. He was readmitted from April 2 to April 16 to undergo a lumbar laminectomy performed by a neurosurgeon. Campbell did not return to work until August of 1982.

Dr. Moses Jones, the neurosurgeon who performed the back operation, estimated that after surgery Campbell could return to eighty-five or ninety percent of his normal capacity. Campbell admitted that because of the limited physical requirements of his job he has been able to perform well at Goodrich; however, he did testify that he is always conscious of his back problems because of a fear of re-injury, that he is now unable to sleep more than four or five hours nightly, and that he has trouble sitting in one position for very long. He also testified that because of the back problems he has had to curtail a five-year-old valve refinishing business he formerly conducted on the side which does involve a good deal of heavy lifting.

The employer recognizes the applicable law regarding post-injury earnings. In Goodyear Tire & Rubber Co. v. Downey, 266 Ala. 344, 96 So.2d 278 (1957), the supreme court stated the following:

“It is insisted by the company that since the evidence shows that plaintiff, after his injury, received the same salary which he received prior thereto, that this excludes the idea that his ability to earn has been decreased as a result of his disability. While this might presumptively indicate that his ability to earn has not been impaired, the mere fact that his employer pays him the same earnings in his disabled condition as it did before he was injured is not the sole determining factor. The statute does not prescribe comparative wages received before and after the injury as the test of the employee’s ability to earn. Instead, the test is the difference between the average weekly earnings at the time of the injury and the average weekly earnings the employee ‘is able to earn in his partially disabled condition’. It seems to us that this clearly excludes any notion of limiting the determination of a loss in ability to earn to the one question of wages actually earned after the injury as compared with those earned before. There are other factors which may be considered.”

Id. at 347, 96 So.2d at 280-81. In Goodyear Tire & Rubber Co. v. Corfman, 424 So.2d 1326 (Ala.Civ.App.1982), this court declared the issue “settled,” citing Downey and ten other cases. See id. at 1327-28.

Apparently isolating certain language from the Downey opinion, B.P. Goodrich insists that because Campbell’s post-injury earnings equal or exceed those earned before the accident a presumption arises that Campbell has not suffered a permanent disability and that the burden is upon Campbell to rebut this presumption. We believe Goodrich’s emphasis to be misplaced. Although Downey does state that receipt of the same salary “might presumptively indicate that [the employee’s] ability to earn has not been impaired,” 266 Ala. at 347, 96 So.2d at 280, the opinion clearly rejects the use of a presumption and a shift in the burden of proof as Goodrich suggests and adopts an approach which considers many factors.

In the instant ease there are “other factors,” factors which are similar to those discussed in Corfman. See 424 So.2d at 1328. As stated above, Campbell still is very conscious of his back, has pain, has trouble sleeping at nights or sitting in one place for a long period of time, and he has had to curtail activity which involves lifting heavy objects and other forms of physical exertion. Put another way, the employee’s back “hurts.” We therefore can find no error in the trial court’s finding a ten percent permanent partial disability in spite of the post-injury earnings. The ten percent figure is, of course, further supported by the testimony of Dr. Jones and the employee’s somewhat limited education.

The second issue the employer raises on appeal is whether the trial court erred in taxing against it the cost of the deposition of Dr. Moses Jones. The deposition was taken by the employee and introduced into evidence by B.F. Goodrich. Goodrich contends that the cost taxation was erroneous because the court taxed costs sua sponte and without any notice to Goodrich.

The specific authority for taxation of costs in workmen’s compensation cases is found at § 25-5-89, Ala.Code (1975): “Costs may be awarded by said court in its discretion, and, when so awarded, the same costs shall be allowed, taxed and collected as for like services and proceedings in civil cases....” The general statute covering taxation of deposition costs in civil actions is found at § 12-21-144, Ala.Code (1975):

“The costs of any deposition introduced, in whole or in part, into evidence at the trial by the party taking it shall be taxed as costs in the case upon the certificate of the person before whom the deposition was taken; the costs of depositions in other cases shall be taxed as costs in the case only if the court so directs.”

Under these statutes the taxation of the deposition costs is clearly within the discretion of the trial.court. See Vulcan Oil Co. v. Gorman, 434 So.2d 760 (Ala.1983).

The employer has cited no authority and we know of none which requires that the opposing party be given notice prior to the taxation of costs or that the issue of costs be specifically injected by the party seeking costs. Under rule 54(d) of the Alabama Rules of Civil Procedure, taxation of costs without notice is specifically authorized in the case of taxation of costs by the clerk of the court. In light of this provision and the apparent availability of a motion in the trial court to retax costs, we must find that the trial court did not err in taxing costs sua sponte. See Pick-Bay Co. v. Younkin, 287 Ala. 103, 109, 248 So.2d 570, 575 (1971). Cf. Kansas City Southern Ry. v. Caruso, 387 F.2d 602 (5th Cir.1968) (appeals court refused to address cost bill issue not raised below). The judgment below is due to be affirmed.

AFFIRMED.

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


text:
    Wayne C. WILLIAMS v. Valerie COTTRELL.
    Civ. 3947.
    Court of Civil Appeals of Alabama.
    Jan. 18, 1984.
    Randye Rosser, Montgomery, for appellant.
    No brief for appellee.
   EDWARD N. SCRUGGS, Retired Circuit Judge.

On June 30, 1983, Ms. Cottrell, the mother of an illegitimate child, sought child support from the defendant, Mr. Williams.

The defendant, who had executed a written notarized acknowledgment on August 4, 1980, that he was the father of the child, filed a motion to set that paternity admission aside. He averred that he was coerced into signing it by the Department of Pensions and Security, that he did not understand all of the legal ramifications of it and that the notary public who took his acknowledgment to that instrument did not have personal knowledge of the defendant’s identity. The trial court overruled that motion without an evidentiary hearing. After the circuit court tried the support case upon its merits, the unemployed defendant was ordered to pay $5 per month for child support. The defendant’s sole contention on appeal is that the trial court erred in overruling his motion.

This litigation is civil in nature and is governed by the Alabama Rules of Civil Procedure. Miller v. State, 403 So.2d 247 (Ala.Civ.App.1981).

We faced difficulty in placing the defendant’s motion in any authorized civil pleading pigeonhole.

It is not a rule 60(b) motion because it does not seek to relieve the defendant from any order, judgment or proceeding of any court. For that same reason and because no fraud was alleged to have been committed upon the trial court and since it was not filed as a separate proceeding, the motion was not an independent action.

The complaint itself does not indicate that the relief sought by the mother was barred by an affirmative defense. The defendant’s affidavit whereby he acknowledged his fatherhood of the child is attached to the mother’s child support complaint, and it is factually very much at variance with the defendant’s own sworn motion. The motion averred facts beyond the pleadings. Therefore, the case could not be disposed of by a rule 12(b)(6) motion to dismiss. Williams v. Nash, 428 So.2d 96 (Ala.Civ.App.1983).

However, because the sworn motion of the defendant did present matters outside of the pleadings, the motion might be considered as one for a summary judgment. Rule 12(b), A.R.Civ.P. Even then, however, the defendant could not prevail because it appears from the defendant’s own affidavit of parenthood of the child and from his subsequent sworn motion that those two sworn instruments of the defendant differ greatly as to the facts and that factual disputes are thereby mutually created. A motion for a summary judgment must not be granted if there is a scintilla of evidence supporting the position of the non-movant. Speigle v. Lott, 423 So.2d 163 (Ala.1982).

In short, the trial court correctly overruled the defendant’s motion.

The facts which were attempted to be presented by the motion clearly constituted issues which could have been raised as affirmative defenses under rule 8(c). Williams v. Nash, 428 So.2d 96 (Ala.Civ.App.1983). After the trial court overruled the motion, the defendant had the right to file an answer alleging those same grounds as affirmative defenses, but he filed no answer to the mother’s complaint. Since those issues were raised by a motion which was correctly overruled by the trial court and because the affirmative defenses were not thereafter pleaded by answer, all such defenses were waived. Lovejoy v. Franklin, 426 So.2d 841 (Ala.Civ.App.1983); Miller v. Brown-Fikes Ford, Inc., 370 So.2d 1052 (Ala.Civ.App.1979). There is no contention that any of these affirmative defenses were tried upon the merits by the express or implied consent of the parties under rule 15(b). The evidence which was presented to the trial court upon the merits is not before this court, and we must presume that it was adequate to support the trial court’s final judgment. Roberts v. Roberts, 424 So.2d 644 (Ala.Civ.App.1982).

We affirm.

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

AFFIRMED.

All the Judges concur.


text:
    Clarence FULLER v. STATE of Alabama, DEPARTMENT OF INDUSTRIAL RELATIONS, and Adelaide Mills.
    Civ. 3915.
    Court of Civil Appeals of Alabama.
    Jan. 25, 1984.
    Mark Baker of Legal Services Corp. of Ala., Anniston, for appellant.
    George Cocoris, Gen. Counsel, and Craig A. Donley, Asst. Counsel, Dept, of Indus. Relations, Montgomery, for appellee.
   BRADLEY, Judge.

This is an unemployment compensation case.

Claimant, Clarence Fuller, was employed as a draw frame attendant by Adelaide Mills of Anniston, Alabama. On October 18, 1979 he was discharged from his job, but the discharge was rescinded and Fuller was suspended from his job for one week without pay. In May 1982 Fuller operated improperly a machine under his supervision. Shortly thereafter he was fired. He then applied for unemployment benefits. The Department of Industrial Relations denied the request and Fuller’s administrative appeals were overruled. He appealed to the Circuit Court of Calhoun County for a de novo hearing. § 25-4-95, Code 1975.

The circuit court heard the matter and entered judgment holding Fuller was discharged from his employment for misconduct after warning and was, thus, disqualified from receiving unemployment benefits. § 25-4-78(3)(b), Code 1975, as amended. Claimant appeals.

Claimant argues on appeal that he was discharged in 1979 from his employment and this discharge could not constitute a “previous warning” within the meaning of § 25-4-78(3)(b) so as to disqualify him from receiving unemployment benefits and that even if it could, it was too remote in time and did not relate to the same misconduct resulting in his second termination from employment.

The 1982 amendment to section 25-4-78(3)(b), Code 1975, provides in pertinent part:

“An individual shall be disqualified for total or partial unemployment:
“(3) Discharge for misconduct.
“b. If he was discharged from his most recent bona fide work for actual or threatened misconduct ... repeated after previous warning to the individual.” (Emphasis added.)

Now an employee who has been terminated for misconduct repeated after warning loses all unemployment benefits. If, however, he is terminated for misconduct without warning, he is entitled to partial benefits. § 25-4-78(3)(c), Code 1975.

The trial court hears the testimony and considers the evidence in a disqualification of benefits case. It is for the trial court to decide whether a claimant is totally or partially disqualified from receiving benefits. Payne v. Director of the Department of Industrial Relations, 405 So.2d 1322 (Ala.Civ.App.), cert. denied, 405 So.2d 1324 (Ala.1981). The trial court’s decision is presumed correct and will not be set aside unless plainly contrary to the great weight of the evidence. Steele v. Carter, 390 So.2d 299 (Ala.Civ.App.1980).

In the case sub judice the trial court found that claimant was totally disqualified from receiving any benefits under 3(b); we hold that the evidence supports such a finding.

In 1976 or 1977 claimant was hired as a can hauler; he removed cans of yarn made in the work area. Claimant was later promoted to draw frame attendant. His job was to keep the yarn machines clean and operating properly and to make sure the cans were always full of yarn.

In October 1979 claimant was suspended for one week from this position. The notice given claimant stated:

“Blocking off knock off [a device that detects imperfection in yarn and shuts the machine off when an irregular thickness of yarn passes through] on drawing causing singling on drawing resulting in defective] work.”

Claimant’s conduct was a violation of company policy and written rules, of which every employee had previously been given notice. He was returned , to his original position as can hauler but occasionally operated the draw frames.

After a period of two years, claimant again was promoted to the position of draw frame attendant. During this period all employees, including claimant, received warnings at training classes and employee meetings that under no circumstances were the machines to be operated with the knockoffs in the wrong position. Running the machines improperly would result in an employee’s termination. The employees were also told that if a problem arose with their machine they were to stop the machine and call for a supervisor.

On May 12, 1982, after just three days on the job as draw frame attendant, claimant failed to lower some rollers on a machine he was fixing. He was caught by his supervisor and was fired the next day. The notice of termination stated:

“Employee discharged due to defective work. He was running a draw frame with the knock-offs blocked off. The knock-offs determine the quality of the work the machine does. Employee has been warned concerning this.”

Claimant was discharged for misconduct “repeated after previous warning,” i.e. blocking off knockoffs on the machine he was operating. Claimant had received several warnings about the proper operation of the yarn machines and the consequences of the failure to so operate the machines prior to his termination. The company stressed the importance of a smooth operation in the mill. If the machines were not running properly, the company could not deliver a quality product and would lose money.

Claimant contends he was warned only about the knockoffs and was never warned about the rollers. Yet, he was fired for failing to lower the rollers.

Defendants contend the rollers and knockoffs are all part of one system and a warning as to knockoffs is a warning as to rollers. We agree.

The record indicates claimant worked for defendant for a period of approximately six years. Claimant knew how important it was that the machine operate correctly. If there was a problem with a machine, claimant was told to seek help, not to attempt to fix the machine himself. The evidence is clear that one of the machines malfunctioned and claimant tried to fix it himself. He did not call a supervisor as he was told. Then he failed to lower the rollers on the machine. For two minutes, a defective product rolled out of the machine until claimant’s mistake was discovered. Defendant lost profits as a result of claimant’s failure to properly do his job.

The trial court had more than sufficient evidence to find claimant disqualified for misconduct connected with work after previous warning. Based on the evidence in the record, we cannot say that this finding is clearly wrong. Therefore, we affirm the denial of benefits to claimant.

AFFIRMED.

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


text:
    Charles Harold PHILLIPS v. OPP & MICOLAS COTTON MILLS, INC.
    Civ. 3998.
    Court of Civil Appeals of Alabama.
    Jan. 25, 1984.

      Benton H. Person, Murphy & Murphy, Andalusia, for appellant.
    J.M. Albritton of Albrittons & Givhan, Andalusia, for appellee.
   EDWARD N. SCRUGGS, Retired Circuit Judge.

This is a workmen’s compensation case.

Pertinent averments of the employee’s complaint were that, while working on his job for the employer on February 8, 1974, he was accidentally injured. He last worked for the employer on November 25, 1975 and, after that date, the employer paid to him $6,649 for 84% weeks of temporary total disability. From November 25, 1975, to July 14, 1981, the last date of compensation payments to him, he was compensated weekly by his employer for a 25% permanent partial disability to his body as a whole. That permanent partial disability compensation totaled $4,214 for those 215V7 weeks. He contends that those weekly payments were incorrect in that they should have been based upon a 75% permanent partial disability to the body as a whole. He sought the sum of $8,432 from the employer as being the difference between what his employer actually paid to him and the amount which he contends should have been paid. There is a lack of averment as to whether the employer commenced and paid the compensation volun- ' tarily or whether the parties reached an agreement as to compensation to be paid to the employee; however, it is clear from the briefs of both parties that no court approved any settlement of the parties, if there was a settlement.

The employer moved to dismiss the action against it on the ground that the complaint failed to state a claim upon which relief could be granted. The trial court entered a final judgment granting the employer’s motion and dismissed the employee’s cause. The employee appeals.

The position of an appellate court in reviewing the grant of a motion to dismiss is, taking the allegations of the complaint most strongly in favor of the pleader, to determine whether the plaintiff could prove any set of facts in support of his claim which would entitle him to relief. Jones v. Lee County Commission, 394 So.2d 928 (Ala.1981).

Insofar as our extensive research and the briefs of counsel reveal, this is a case of first impression in Alabama. We must look to the Workmen’s Compensation Act for guidance.

Where compensation payments have been made, the statutory limitation of one year within which an employee may file a complaint does not take effect until the expiration of one year from the time of the making of the last payment. § 25-5-80, Code of Alabama 1975; Cement Products Company v. Martin, 397 So.2d 149 (Ala.Civ.App.1981); Cunningham v. Milstead Pulpwood Company, 366 So.2d 737 (Ala.Civ.App.1979). The last payment of compensation in this case was alleged to have been made on July 14, 1981. The employee’s complaint was filed on May 25, 1982, which was within one year from the date of the last payment of compensation. Accordingly, insofar as § 25-5-80 is concerned, the complaint was filed within the prescribed time.

The pivotal Code section is as follows:

“The interested parties shall have the right to settle all matters of compensation and all questions arising under this article between themselves, and every settlement made under this article shall be in amount the same as the amounts or benefits stipulated in this article. No settlement for an amount less than the amounts or benefits stipulated in this article shall be valid for any purpose, unless a judge of the circuit court of the county where the claim for compensation under this chapter is entitled to be made, or upon the written consent of the parties a judge of the circuit court of any county determines that it is for the best interest of the employee or his dependents to accept a lesser sum and approves such settlement. The court shall not approve any such settlement unless and until it has first made inquiry into the bona fides of claimant’s claim and the liability of the defendant, and if deemed advisable the court may hold a hearing thereon. Any settlements hereunder may be vacated for fraud, undue influence or coercion, upon application made to the judge approving the settlement at any time no later than six months after the date of settlement. Upon such settlements being approved, judgments shall be entered thereon and duly entered on the records of said court in the same manner and have the same effect as other judgments or as an award if the settlement is not for a lump sum.... All moneys voluntarily paid by the employer or insurance carrier to an injured employee in advance of agreement or award shall be treated as advance payments on account of the compensation. In order to encourage advance payments, it is expressly provided that such payments shall not be construed as an admission of liability but shall be without prejudice.”

§ 25-5-56, Code 1975.

From those provisions, the following principles appear or evolve.

If workmen’s compensation payments are voluntarily made without court approval by an employer to an injured employee in the same weekly amounts and for the same period of time as are provided for a particular injury by the statute, those advance payments would fully pay the compensation obligation of the employer to the employee for that injury. However, if the monies so voluntarily paid without court approval amounted to less than the total amount which should have been paid under the statute, the employer would be liable to the employee for the difference between those total figures, and the employee could institute a timely civil action for that balance.

Under that Code section, the same rules and results would apply and occur if the making and acceptance of compensation payments were here construed to constitute a settlement between the parties. It has long been the rule in Alabama that a settlement by the parties for less than the amount established by the Workmen’s Compensation Act must be approved by the court in order to be binding. Ex parte Central Iron & Coal Company, 209 Ala. 22, 95 So. 472 (1923). The statute so provides. In the meantime, however, the Act has been amended so that payments made pursuant to an inadequate settlement which was not court approved may properly be considered as advance payments upon the amount of compensation actually due under the statute. § 25-5-56, supra; 2 A. Larson, Workmen’s Compensation § 82.-60, 15-73 (1982). The reverse is also true regarding settlements, for if the non-eourt-approved compensation which an employee was paid was the same as, or exceeded, that compensation as fixed by the statute, the provisions of § 25-5-56, supra, have been completely satisfied. The employer and the employee have a right to settle all matters relating to payment, subject to any restrictions or limitations contained in the act. Tennessee Coal, Iron & Railroad Co. v. King, 26 Ala.App. 581, 164 So. 757, cert. denied, 231 Ala. 303, 164 So. 760 (1935). One of the limitations contained in section 25-5-56 upon a settlement between the parties without court approval is that it must be in amount the same as the amount or benefits stipulated in the Act.

The employee alleged in his complaint that the weekly permanent partial disability payments were not in the amount that he was actually entitled to receive, since they were computed on the basis of a 25% permanent partial disability to the body as a whole instead of a 75% permanent partial disability which he actually sustained. In ruling upon a rule 12(b)(6) motion to dismiss a complaint, both trial and appellate courts review the facts as averred in the complaint in a manner which is favorable to the pleader. Rule 8, and committee comments thereto, A.R.Civ.P.; Brad’s Industries, Inc. v. Coast Bank, 429 So.2d 1001 (Ala.1983). Thus, for pleading purposes, we accept those disability aver-ments of the complaint as being true and hold that the complaint in that respect states a cause of action upon which relief can be granted. Since court approval was never obtained, the compensation paid to the employee in this case constituted advance payments, which are due to be credited against the total compensation which the employer was actually supposed to pay to the employee as compensation under the act if that amount exceeds the total permanent partial compensation actually paid. Lacking court approval of any settlement, a right of action rests with the employee to have the court decide if the payments actually made were less than that which he should have received under the act.

However, the employer, by respected and learned counsel, contends that the employee is estopped from maintaining an action for additional workmen’s compensation benefits for his permanent partial disability after he has accepted benefits under the act for both temporary total disability and for permanent partial disability for the full 300 weeks provided for under the statute for such disabilities. That argument ignores the provisions of § 25-5-56, supra, which, “clearly removed settlement of workmen’s compensation claims from the ambit of the principles applicable to the settlement and release of ordinary personal injury claims.” Sager v. Royce Kershaw Company, 359 So.2d 398 (Ala.Civ.App.1978). To hold that the employee was here estopped would be to overlook those provisions of §§ 25-5-56 and -80, which we have previously interpreted herein.

If the employee is denied the opportunity to establish that his disability should have been compensated at a 75% rate instead of a 25% rate, possibly he will have been greatly underpaid by the employer without court approval thereof contrary to § 25-5-56, supra. That Code section dictates that any prejudice to the employer in trying the employee’s present action compares unfavorably to the possible prejudice to the employee which he now seeks to correct.

We emphasize that we are not expressing an opinion, or even an impression, as to the merits of the validity of the employee’s claim, for such is a question of fact for the trial court. We hold, however, that the respected, learned and experienced trial court erred in granting the employer’s motion to dismiss the employee’s complaint and that judgment is hereby reversed and the matter is remanded to the trial court. The complaint, from a pleading standpoint, did state a claim upon which relief can be granted.

This case is a clear example of the wisdom and prudence of obtaining court approval of workmen’s compensation settlements when more than modest payment periods or amounts are required by the act. Had a settlement of the parties been approved by the court as is authorized by § 25-5-56, supra, the court’s judgment as to this permanent partial disability could not have been vacated except for fraud, undue influence or coercion upon application made to the trial court within six months from the date of the entering of the judgment.

In his complaint, the employee also sought the payment of $229 for medical expenses which had been incurred by him since July 14, 1981. He is not entitled to that relief, for, in workmen’s compensation cases, the statute in effect at the time of the injury is the statute to be applied. Jamestown Corporation v. Ward, 373 So.2d 1136, 1140 (Ala.Civ.App.), cert. denied, 373 So.2d 1142 (Ala.1979); Loggins v. Mallory Capacitor Company, 344 So.2d 522 (Ala.Civ.App.1977). The accident causing the injury occurred on February 8, 1974. At that time, the statute limited the period of time during which an employer was required to make medical payments to an injured employee to a four-year period after the accident. 1975 Ala.Acts 1062 § 21 at 1767.

We reverse and remand.

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

REVERSED AND REMANDED.

All the Judges concur.


author: PER CURIAM.

text:
    Ex parte STATE of Alabama, ex rel. James H. EVANS, as District Attorney for the Fifteenth Judicial Circuit. (Re STATE of Alabama v. Betty LaFLORE, Respondent.)
    3 Div. 694.
    Court of Criminal Appeals of Alabama.
    Oct. 26, 1982.
    Rehearing Denied Nov. 9, 1982.
    Charles A. Graddiek, Atty. Gen., and Ellen Brooks and George Hardesty, Asst. At-tys. Gen., for petitioner.
    David B. Byrne, Jr. of Robison & Belser, Montgomery, for respondent.
   PETITION FOR WRIT OF MANDAMUS, OR IN THE ALTERNATIVE, FOR WRIT OF PROHIBITION

PER CURIAM.

This matter comes on to be heard on a petition for a writ of mandamus, or in the alternative, for a writ of prohibition by Hon. James H. Evans, District Attorney of the Fifteenth Judicial Circuit, directed to Hon. Perry 0. Hooper, Circuit Judge, Fifteenth Judicial Circuit.

Under the facts as presented to this Court, the respondent is not held in confinement, being out on bond. Therefore, the Circuit Judge was without authority to order a jury determination of the respondent’s competency to stand trial. Billups v. State, 338 So.2d 478, (Ala.App.1976); Hawes v. State, 48 Ala.App. 565, 266 So.2d 652 (1972); Ala.Code, § 15-16-21 (1975).

Petition for mandamus granted.

TYSON, DeCARLO, BOWEN and BARRON, JJ., concur.


author: ALMON, Justice. FAULKNER, Justice

text:
    Ex parte Betty LaFLORE. (Re: Ex parte: STATE of Alabama ex rel. James H. EVANS, etc.) (Re: STATE v. Betty LaFLORE.)
    82-155.
    Supreme Court of Alabama.
    Nov. 10, 1983.

      David B. Byrne, Jr. and John M. Bolton, III of Robison & Belser, Montgomery, for petitioner.
    Charles A. Graddick, Atty. Gen., and Jane LeCroy Brannan, Asst. Atty. Gen., and James H. Evans, Dist. Atty., and Eleanor I. Brooks, Deputy Dist. Atty., for respondents.
   ALMON, Justice.

This cause comes before this Court on writ of certiorari to the Court of Criminal Appeals, 445 So.2d 932, to review the appropriateness of a judgment of that court granting a writ of mandamus to the Circuit Court of Montgomery County.

The opinion of the Court of Criminal Appeals states:

“This matter comes on to be heard on a petition for a writ of mandamus, or in the alternative, for a writ of prohibition by Hon. James H. Evans, District Attorney of the Fifteenth Judicial Circuit, directed to Hon. Perry 0. Hooper, Circuit Judge, Fifteenth Judicial Circuit.
“Under the facts as presented to this Court, the respondent is not held in confinement, being out on bond. Therefore, the Circuit Judge was without authority to order a jury determination of the respondent’s competency to stand trial. Billups v. State, 338 So.2d 478 (Ala.[Cr].App.1976); Hawes v. State, 48 Ala.App. 565, 266 So.2d 652 (1972); Ala. Code, § 15-16-21 (1975).”

The petitioner is charged under a three-count indictment with theft of property in the first degree. Code 1975, § 13A-8-3. At arraignment she pled not guilty and not guilty by reason of insanity. Later petitioner’s attorneys filed a motion, requesting a hearing to determine her mental competency to stand trial. A licensed psychiatrist and a licensed psychologist both testified that petitioner was unable to cooperate with counsel and assist in the preparation of her defense. One of her attorneys testified that she did not understand the nature of the charges pending against her and was unable to assist in the preparation of her defense.

The trial judge initially entered an order finding petitioner competent to stand trial. Upon reconsideration of this order, the judge ordered an independent examination of petitioner and scheduled a jury trial to resolve the issue. The jury trial did not take place because of the issuance of the writ of mandamus to which we have previously referred.

Petitioner asserts that the circuit court has inherent authority to order a jury trial to determine competency and that, absent an abuse of discretion, a circuit court’s order granting such a trial should not be reversed. Alternatively, petitioner argues that Code 1975, § 15-16-21, is violative of the equal protection clause of the U.S. Constitution because it arbitrarily denies a defendant who is not confined to jail the benefit of a jury trial to determine his competence to stand trial while granting a jury trial to confined defendants.

The state counters this contention by asserting the court had no authority to change its previous order of competency and was without statutory authority to order a jury trial of one not held in confinement.

It is without dispute that the conviction of an accused person while that person is legally incompetent violates the right to due process, and that State procedures must be adequate to protect that right. Bishop v. United States, 350 U.S. 961, 76 S.Ct. 440, 100 L.Ed. 835 (1956). Pate v. Robinson, 383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966).

It is equally clear that in view of Pate, supra, Pierce v. State, 52 Ala.App. 422, 293 So.2d 483 (1973), cert. quashed, 292 Ala. 745, 293 So.2d 489; and Edgerson v. State, 53 Ala.App. 581, 302 So.2d 556 (1974), a trial court has an independent duty to inquire into an accused’s state of mind when there are reasonable grounds to doubt the accused’s competency to stand trial. The standard upon which this determination is to be made is set out in Edgerson, supra.

After the trial judge makes this initial determination, the question then arises as to whether the issue must be submitted to a jury. We find no need to address petitioner’s federal constitutional arguments because our state constitution provides the answer to this question.

Article I, § 6, Ala. Const.1901, provides, inter alia, that the accused has a right, “in all prosecutions by indictment, [to] a speedy, public trial, by an impartial jury of the county or district in which the offense was committed .... ”

Article I, § 11, Ala. Const.1901, provides “that the right of trial by jury shall remain inviolate.” These right-to-jury-trial provisions have been in all of Alabama’s Constitutions, beginning with the constitution of 1819 and including those of 1861, 1865, 1868, and 1875.

Section 11 has been interpreted to provide for the right of jury trial in those classes of cases in which that right existed at common law. Alford v. State, 170 Ala. 178, 54 So. 213 (1911); W & H Machine & Tool Co. v. National Distill. & C. Corp., 291 Ala. 517, 283 So.2d 173 (1973); Gilbreath v. Wallace, 292 Ala. 267, 292 So.2d 651 (1974). In addition, § 6.11 of Amend. No. 328, 1901 Const., ratified in 1973, provides “that the right of trial by jury as at common law and declared by § 11 of the Constitution of Alabama 1901 shall be preserved to the parties inviolate.” (Emphasis supplied.)

In Edgerson v. State, 53 Ala.App. 581, 302 So.2d 556 (1974), the Court of Criminal Appeals recognized that accused persons were entitled to a jury trial at common law on the issue of competency to stand trial.

In 4 W. Blackston, Commentaries * 24-25 (1779), we find:

“ * * * Also, if a man in his sound memory commits a capital offence, and before arraignment for it, he becomes mad, he ought not to be arraigned for it; because he is not able to plead to it with that advice and caution that he ought. And if, after he has pleaded, the prisoner becomes mad, he shall not be tried; for how can he make his defence? If, after he be tried and found guilty, he loses his senses before judgment, judgment shall not be pronounced; and if, after judgment, he becomes of non-sane memory, execution shall be stayed; for peradventure, says the humanity of the English law, had the prisoner been of sound memory, he might have alleged something in stay of judgment or execution. Indeed, in the bloody reign of Henry the Eighth, a statute was made, which enacted that if a person, being compos mentis [of sane mind] should commit high treason, and after fall into madness, he might be tried in his absence, and should suffer death, as if he were of perfect memory. But this savage and inhuman law was repealed by the statute 1 and 2 P. and M., c. 10. For, as is observed by Sir Edward Coke, ‘the execution of an offender is for example, ut poena ad paucos, metus ad omnes perveniat [that the punishment may reach the few, but the fear of it affect all]: but so it is not when a madman is executed; but should be a miserable spectacle, both against law, and of extreme inhumanity and cruelty, and can be no example to others.’ But if there be any doubt, whether the party be compos or not, this shall be tried by jury. * * * ”

At common law the determination of competence to stand trial was a question for the jury. In addition to the rule as stated by Blackstone, Parliament passed a statute on the subject in 1800, the Criminal Lunacy Act, 39 & 40 Geo. Ill c. 94. That statute was relied on in Rex v. Little, Russ. & Ry. 430, 168 Eng.Rep. 881 (1821). Little was indicted for assault with intent to murder, but the jury found him insane both at the time of the commission of the offense and at the time of trial. The trial judge ordered him kept in custody under the section of the Criminal Lunacy Act pertaining to insanity at the time of trial, the section pertaining to insanity at the time of commission of the offense not being applicable to the case. This action was found to be correct.

In the report of Rex v. Little, supra, there appears the following summary of the statute:

“By 39 & 40 Geo. Ill c. 94 s. 1, it is enacted, That in case any person charged with treason, murder, or felony, proving to be insane at the time of the commission of such offence, be acquitted, the jury are to declare whether he was acquitted by them on account of insanity; and if they so find the Court shall order him to be kept in custody till his Majesty’s pleasure be known, & e. By s. 2 it is enacted, That if, upon the trial of any person indicted for any offence, such person shall appear to the jury charged with such indictment to be insane, it shall be lawful for the Court before whom any person shall' be brought to trial, as aforesaid, to direct such finding to be recorded, and thereupon to order such person to be kept in strict custody until his Majesty’s pleasure be known.”

Thus, both by the common law in Blackstone’s time and through the later Act of Parliament, the question of whether an accused was competent to stand trial was for the jury. This right is preserved to the citizens of Alabama by § 11 of the Constitution of 1901.

We therefore conclude that the petitioner is constitutionally entitled to a jury trial on the issue of her mental competency to stand trial. The statutes in Article 2, Chapter 16, Title 15, Code 1975, should be considered modified to the extent that they are in conflict with the constitutional right to trial by jury.

The judgment of the Court of Criminal Appeals issuing the writ of mandamus is hereby reversed, and the cause is remanded to that court to issue an order consistent with this opinion.

REVERSED AND REMANDED.

All the Justices concur, except FAULKNER, J., who dissents.

FAULKNER, Justice

(dissenting).

I dissent.

The majority holds that a defendant while out on bond is entitled to a jury trial to determine competency to stand trial. By its holding, the majority states that it has “modified” § 15-16-21, Code 1975. The majority ignores Hawes v. State, 48 Ala. App. 565, 266 So.2d 652 (1972), which held that there is no statutory authority to hold a competency hearing while a defendant is out on bond. Second, the majority seemingly relies on Edgerson v. State, 53 Ala. App. 581, 302 So.2d 556 (1974), as a principal authority. In Edgerson the defendant was confined and the trial court considered that a competency hearing was a matter of discretion. All that Edgerson held was that since Pate v. Robinson, 383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966), the provisions of § 15-16-21 were mandatory rather than discretionary. It is to be noted that the competency issue was raised at various times during Robinson’s trial. There the Illinois Supreme Court had held, before the case got into the federal court stream, that Robinson had waived his right to a competency hearing. The U.S. Supreme Court held that a defendant’s mental ineompetency may manifest itself during a trial, and when that occurs the trial judge must hold a hearing to determine mental competency to stand trial.

Again, in Pierce v. State, 52 Ala.App. 422, 293 So.2d 483 (1973), a case cited by the majority, the Court of Criminal Appeals held that failure to suspend the trial sua sponte and hold a trial on defendant’s competency to stand trial denied him due process. And, again, it is to be noted that the defendant was confined. Pierce was a capital murder case.

The court lacking statutory authority to hold a jury trial on the competency of LaF-lore to stand trial, while she is out on bond, I would quash the writ as having been improvidently granted. I do not feel that LaFlore has been deprived of any federal or state constitutional right at this point in time.


author: BOWEN, Presiding Judge.

text:
    Ex parte STATE of Alabama, ex rel. James H. EVANS, as District Attorney for the Fifteenth Judicial Circuit. (Re STATE of Alabama v. Betty LaFLORE.)
    3 Div. 694.
    Court of Criminal Appeals of Alabama.
    Jan. 31, 1984.
   AFTER REMANDMENT BY THE SUPREME COURT

BOWEN, Presiding Judge.

The District Attorney's petition for writ of mandamus, or in the alternative, petition for a writ of prohibition, is denied on authority of Ex parte LaFlore, 445 So.2d 932 (Ala.1983), wherein the Alabama Supreme Court held that LaFlore “is constitutionally entitled to a jury trial on the issue of her mental competency to stand trial.”

PETITION DENIED.

All Judges concur.


author: DeCARLO, Judge. BOWEN, Judge,

text:
    Pete THOMAS v. STATE.
    1 Div. 436.
    Court of Criminal Appeals of Alabama.
    Feb. 1, 1983.
    Rehearing Denied March 1, 1983.

      John Bertolloti, Jr., Mobile, for appellant.
    Charles A. Graddick, Atty. Gen., and Jeanne Weston, Asst. Atty. Gen., for appel-lee.
   DeCARLO, Judge.

Pete Thomas was indicted for third degree burglary and receiving stolen property. After a jury trial he was convicted of receiving stolen property and sentenced to a term of five years in the State penitentiary-

I

The appellant contends that the evidence presented by the State was insufficient to support a conviction of receiving stolen property. In support of this contention he relies on Davidson v. State, 360 So.2d 728 (Ala.Crim.App.), cert. denied, 360 So.2d 731 (Ala.1978), in which this court held that “evidence tending to prove that the accused came into possession of the property described in the indictment solely through the burglarization of a house is insufficient to authorize a conviction of receiving stolen goods.”

The evidence in this case shows that on February 16, 1982, the residence of Josey Earl at 1458 A, Kellogg Street in Mobile, Alabama, was burglarized and a G.E. console television valued at approximately $1000 taken. On the following day, Mobile Police Sgt. Walter Pickett was told by an informant that he had seen a television taken in a burglary on Kellogg Street in the bedroom of an apartment at a certain address. Pickett relayed this information to Mobile Police Officer Nolan Ramsay.

Ramsay testified that Pickett told him that the informant had stated that he (the informant) had seen, within the last three days, a G.E. color console television in an apartment at 1211 Arlington Street and that “they were getting ready to move it.” Ramsey obtained a search warrant for the residence on Arlington Street and, on February 17, he and two other officers searched the premises. A G.E. color console television, which the victim later identified as hers, was found in a bedroom of the apartment. At the time of the search, appellant and his sister were present in the apartment.

After the search, the appellant was placed under arrest and taken to the Mobile detective bureau. Ramsay advised appellant of his constitutional rights from a “rights waiver” in the presence of Officer Watts and Sgt. Coley. At that time, the appellant would not make a written statement but did make an oral statement saying he and another black male went to the house on Kellogg Street, removed the television and transported it to the appellant’s house.

No other evidence was presented which showed the appellant had in fact burglarized the residence or was in any way connected with the burglary. Moreover, during the trial the judge stated that the appellant was not placed anywhere near the burglarized residence and that the case would not be submitted to the jury on the burglary count due to the insufficiency of the evidence.

In Nicholson v. State, 369 So.2d 304 (Ala.Crim.App.1979), this court held:

“When an accused is charged in a two-count indictment with both larceny and buying, receiving or concealing stolen property, and the property in question is the same, the jury should be instructed to specify under which count they find the accused guilty _ Since an accused cannot be found guilty of both ... he is guilty, if at all, of either one or the other.”

The Supreme Court followed substantially the same reasoning in Ex parte Wilcox, 401 So.2d 794 (Ala.1981), holding:

“Although a defendant cannot be convicted of both larceny and buying, receiving or concealing stolen property, where the same property is involved, the state, may, nevertheless, seek convictions upon both. Defendant’s right not to be convicted of both can be safeguarded by requesting that the jury be instructed to specify the count under which they find the defendant guilty, and in situations where no evidence is presented as to a particular count, a directed verdict can be requested as to that count.”

In the present case, the trial court did precisely as directed under the foregoing opinions: he granted appellant’s motion, omitted the burglary count, and submitted the case to the jury on this count.

II

The appellant complains that the trial court erroneously allowed Officer Ramsey to testify, over his objection, that the search of appellant’s apartment yielded a stereo, two telephones, a “cooker cap,” and some marijuana. Appellant argues that the testimony was inadmissible as evidence of other crimes.

Such evidence may, however, be admitted where it is a part of the same transaction or has a tendency to show “the complete story.” Brantley v. State, 294 Ala. 344, 317 So.2d 345 (1975). In our opinion Ramsey’s testimony as to the stereo, telephones, and “cooker cap” was admissible for this purpose.

Moreover, the trial judge, after appellant’s objection, instructed the jury:

“The defendant is being tried for either burglary or the receiving and concealing of stolen property, namely a television set, nothing else.”

Further, these items were not mentioned again during the trial. No prejudicial error occurred in admitting the testimony concerning marijuana because of the trial court’s prompt instruction to the jury. See Frazier v. State, 56 Ala.App. 166, 320 So.2d 99 (1975).

III

Appellant insists that the search warrant executed by the police was invalid because the information given to the issuing judge was inaccurate.

In Richardson v. State, 376 So.2d 205 (Ala.Crim.App.1978), aff'd 376 So.2d 228 (Ala.1979), this court adopted the following standards for determining whether information contained in a supporting affidavit to a search warrant is inaccurate, necessitating the suppression of all evidence seized under the search warrant:

“Evidence should be suppressed when either of the following occurs:
“... (1) an intentional misstatement by an affiant-agent, whether material or immaterial to showing probable cause; or (2) a negligent or unreasonable assertion in an affidavit, if material to showing probable cause, but not where (3) the mistake is innocent, even if material to probable cause.”

Sgt. Pickett testified that his informant “had been reliable and given me information and I had obtained arrests and convictions with the information.” Further, he said, “I didn’t say [to Ramsay] what kind of arrests they were.” The arrests and convictions actually obtained were drug related. Ramsey’s testimony indicated he was not aware that the convictions alluded to by Pickett were drug arrests, because he testified that Pickett told him “that this informant had led to the recovery of stolen property.”

After reviewing the testimony, we are of the opinion that this was an innocent assumption by Ramsey because the charge involved here was receiving stolen property and amounts only to an innocent mistake. There is no indication that it was an intentional effort to misrepresent or a negligent or unreasonable assertion of the underlying facts of the search warrant affidavit.

Based on the foregoing reasons, it is our opinion that the judgment of conviction by the Mobile Circuit Court is due to be affirmed.

AFFIRMED.

HARRIS, P.J., and TYSON, BARRON, JJ., concur.

BOWEN, J., dissents.

BOWEN, Judge,

dissenting.

I dissent on authority of Nicholson v. State, 369 So.2d 304 (Ala.Crim.App.1979), and Davidson v. State, 360 So.2d 728 (Ala.Crim.App.), cert. denied, 360 So.2d 731 (Ala.1978).


author:
PER CURIAM.
      MADDOX, Justice

text:
    Ex parte Pete THOMAS. (In re Pete Thomas v. State of Alabama).
    82-551.
    Supreme Court of Alabama.
    Sept. 16, 1983.
    Rehearing Denied Dec. 22, 1983.

      John Bertolotti, Jr., Mobile, for petitioner.
    Charles A. Graddick, Atty. Gen., and Gerrilyn V. Grant, Asst. Atty. Gen., for respondent.
   PER CURIAM.

Petitioner Pete Thomas was tried under a two-count indictment charging him with third-degree burglary and receiving stolen property. At the conclusion of the presentation of all the evidence, Thomas moved for a directed verdict on both counts in the indictment. The trial judge granted the motion as to the burglary count, but allowed the second count to go to the jury. Thomas was found guilty of receiving stolen property, and sentenced to a term of five years’ imprisonment. The Court of Criminal Appeals, 445, So.2d 936, affirmed the conviction.

The petitioner, in requesting certiorari, asserts that the decision of the Court of Criminal Appeals is in conflict with prior decisions of that court. We agree and reverse.

The dispositive issue raised by Thomas is whether the evidence presented by the state which proved Thomas came into possession of the property, described in the indictment solely by burglarizing a house precluded a conviction of receiving stolen property. We hold that it did.

The facts of the case are set out in full in the opinion of the Court of Criminal Appeals. The trial court refused to submit the charge of burglary to the jury, on the grounds of insufficiency of the evidence. In Ex parte Wilcox, 401 So.2d 794 (Ala.1981), this court held:

[Although a defendant cannot be convicted of both larceny and buying, receiving or concealing stolen property, where the same property is involved, the state may, nevertheless, seek convictions upon both. Defendant’s right not to be convicted of both can be safeguarded by requesting that the jury be instructed to specify the count under which they find the defendant guilty, and in situations where no evidence is presented as to a particular count, a directed verdict can be requested as to that count.

Ex parte Wilcox, supra, at 796. (Emphasis added).

In the case before us, the trial court concluded that the defendant’s motion for a directed verdict was due to be granted as to the burglary count. However, the record is clear, as reflected in the opinion of the Court of Criminal Appeals, that the corpus delicti of burglary was proved. It is also clear that the state presented evidence that Thomas, after being advised of his constitutional rights, made an oral statement to the police that he and another had broken into the victim’s house, stolen the television set described in the indictment, and taken it to his (Thomas’s) house. There is no indication that this evidence was disputed by the defendant, or that any other theory was proffered as to how the television set came into the hands of the defendant.

There are a number of Alabama cases indicating that evidence of the corpus de-licti plus a confession is sufficient to sustain a conviction. In Johnson v. State, 378 So.2d 1164 (Ala.Cr.App.), cert. denied, 378 So.2d 1173 (Ala.1979), a murder case, the Court of Criminal Appeals stated:

Once there is independent evidence of the corpus delicti, a confession is not required to be corroborated. King v. State, 49 Ala.App. 111, 269 So.2d 130 (1972). The confession of accused, alone, may be sufficient to show his connection with the homicide if the corpus delicti is established by other evidence. Arnold v. State, 57 Ala.App. 172, 326 So.2d 700 (1976); Smith v. State, 25 Ala.App. 297, 145 So. 504 (1933); Minton v. State, 20 Ala.App. 176, 101 So. 169 (1924); Rowe v. State, 243 Ala. 618, 11 So.2d 749 (1943).

Johnson v. State, supra, at 1170.

In Arnold v. State, 57 Ala.App. 172, 326 So.2d 700 (1976), the defendant challenged the sufficiency of the evidence in his burglary conviction. The appellate court held:

Proof of the corpus delicti does not necessarily include evidence connecting defendant with the crime. The term, meaning body of the offense, connotes the actual commission of the crime by someone. Latham v. State, 38 Ala.App. 92, 77 So.2d 499, cert. stricken, 262 Ala. 108, 77 So.2d 502; Malone v. State, 37 Ala.App. 432, 71 So.2d 99, cert. denied, 260 Ala. 699, 71 So.2d 101.
Evidence showing the corpus delicti coupled with evidence of the confession of defendant furnished a sufficient basis for the verdict of the jury.

Arnold v. State, supra, 57 Ala.App. at 173, 174, 326 So.2d 700. In that case, as in the one before us, the confession was an oral one, testified to by the officers to whom it was made. In light of the above holdings, it is plain that there was ample evidence in the case before us to have allowed the jury to decide whether Thomas was guilty of burglary as charged in the indictment.

In its opinion in this case, the Court of Criminal Appeals quoted Davidson v. State, 360 So.2d 728 (Ala.Cr.App.), cert. denied, 360 So.2d 731 (Ala.1978), for the proposition that evidence tending to prove that the accused came into possession of the property described in the indictment solely through the burglary of a house is insufficient to authorize a conviction of receiving stolen goods. In addition, we note Guerin v. State, 396 So.2d 132 (Ala.Cr.App.1980), cert. denied, 396 So.2d 136 (Ala.1981). In that case, the state presented evidence that the defendant, who was charged in the indictment with grand larceny and buying, receiving, or concealing stolen property, had driven a tractor to the office of the owner of a pulverizer, stating that “he (defendant) was going to pick up a pulverizer.” The owner’s pulverizer, later reported stolen, was next to his office at the time the defendant arrived with the tractor. The stolen pulverizer was subsequently found in the possession of the defendant. There was no testimony that anyone actually saw the defendant remove the pulverizer from the owner’s premises. The defendant presented no evidence. Both counts of the indictment were submitted to the jury, which found the defendant guilty of buying, receiving or concealing stolen property. The Court of Criminal Appeals reversed, holding:

Under the evidence of this case, including the absence of theft by any other party, the only reasonable conclusion from the inferences of the evidence is that the defendant stole the pulverizer. For this reason he cannot be convicted of buying, receiving or concealing stolen property.

Guerin v. State, supra, at 135.

The case of Craig v. State, 375 So.2d 1252 (Ala.Cr.App.), cert. denied, 375 So.2d 1257 (Ala.1979), relied on by the State, is easily distinguishable from the case before us. The Court of Criminal Appeals noted, in Craig, that the evidence did not show that Craig participated in the burglary. “That he may have done so cannot be reasonably doubted, but there is no definite evidence to that effect. On the contrary, defendant’s own testimony stands as undisputed repudiation of that theory.” Craig v. State, supra, at 1254.

Such is not the situation before us. The undisputed testimony here is: that a house was burglarized and a television set stolen; that the defendant admitted that he broke into the house, took a television set, and transported it to his house; and that the stolen television set was found in his house. On the basis of these facts and the foregoing discussion, we hold that the defendant cannot be convicted of receiving stolen property.

Because of our decision on this issue, we do not reach the other issue raised by the petitioner.

The judgment of the Court of Criminal Appeals is reversed and the cause remanded.

REVERSED AND REMANDED.

FAULKNER, ALMON, EMBRY, BEAT-TY and ADAMS, JJ., concur.

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

MADDOX, Justice

(dissenting).

I must respectfully disagree with the majority that “there was ample evidence in the case ... to have allowed the jury to decide whether Thomas was guilty of burglary as charged in the indictment.” The Court of Criminal Appeals found that other than the defendant’s confession:

“No other evidence was presented which showed the appellant had in fact burglarized the residence or was in any way connected with the burglary. Moreover, during the trial the judge stated that the appellant was not placed anywhere near the burglarized residence and that the case would not be submitted to the jury on the burglary count due to the insufficiency of the evidence.”

In view of the fact that an essential element of burglary was not proven, I think the Court of Criminal Appeals correctly applied the law, and I would affirm.

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


text:
    Pete THOMAS v. STATE.
    1 Div. 436.
    Alabama Court of Criminal Appeals.
    Jan. 31, 1984.
   AFTER REMANDMENT

PER CURIAM.

Reversed and Remanded on authority of the Supreme Court of Alabama, Ex parte Thomas, 445 So.2d 939 (Ala.1983).

REVERSED AND REMANDED.

All the Judges concur.


text:
    Ex parte STATE of Alabama, ex rel. Charles A. GRADDICK, Attorney General. (Re STATE of Alabama v. Narayan R. KULKARNI.)
    3 Div. 778.
    Court of Criminal Appeals of Alabama.
    April 20, 1983.
    Rehearing Denied May 9, 1983.
   PER CURIAM.

Petition granted. Trial court directed to vacate and hold for naught its order of December 20, 1982, granting a change of venue in the case of State of Alabama v. Narayan R. Kulkarni, Montgomery Circuit Court number CC-82-977-H.

All the Judges concur.

Order reversed, Ala., 445 So.2d 943.


author: ADAMS, Justice.

text:
    Ex parte Narayan R. KULKARNI. (Re Ex parte State of Alabama, ex rel. Attorney General.) (Re STATE v. Narayan R. KULKARNI.)
    82-775.
    Supreme Court of Alabama.
    Dec. 22, 1983.
    Clarence T. Heliums and Jack W. Meigs, Centreville, for petitioner.
    Charles A. Graddick, Atty. Gen., and J. Michael Horsley, Asst. Atty. Gen., for respondent.
   ADAMS, Justice.

Reversed and remanded on the authority of Ex parte Hunte, 436 So.2d 806 (Ala.1983).

REVERSED AND REMANDED.

MADDOX, FAULKNER, JONES, AL-MON, SHORES, EMBRY and BEATTY, JJ., concur.


text:
    Ex parte STATE of Alabama, ex rel. Charles A. GRADDICK, Attorney General. (Re STATE of Alabama v. Narayan R. KULKARNI.)
    3 Div. 778.
    Court of Criminal Appeals of Alabama.
    Jan. 31, 1984.
   BOWEN, Presiding Judge.

The petition for writ of mandamus is denied on authority of the opinions of the Alabama Supreme Court in Ex parte Kulkarni, 445 So.2d 943 (Ala.1983), and Ex parte Hunte, 436 So.2d 806 (Ala.1983).

PETITION DENIED.

All Judges concur.