text:
    ARGO WATER & FIRE PROTECTION, et al. v. Ruben R. KEITH.
    Civ. 3849.
    Court of Civil Appeals of Alabama.
    Nov. 9, 1983.
    Harold T. Ackerman, Birmingham, for appellant.
    Ernest W. Weir, Birmingham, for appel-lee.
   WRIGHT, Presiding Judge.

The appellee, Ruben R. Keith (Keith) entered into a contract with appellant Argo Water & Fire Protection Authority (Argo) under the date of February 16, 1975. The contract provided that Argo, in consideration of the mutual covenants contained therein would furnish Keith “such quantity of water as the water user may desire in connection with his occupancy of the property.” There was provided a fee of $25 for each tap-on. At the time Keith executed the Water User Agreement, his water supply came from his individual well.

The original design of Argo’s system provided for the installation of a two-and-one-half-inch main line to run to Keith’s property. The distance and location of the property were deemed to be such that a larger pipe should be used; therefore, it was agreed to increase the size to a six-inch line. Keith and several others served by Argo desired to have the size of their lines increased to six-inch lines. Argo refused to approve the installation of the larger pipe without the property owners first paying for the increased cost of material. Keith was required to pay $15,721 above the cost of the $25 tap-on fee.

Keith owned approximately 120 acres. He purchased five tap-ons under his contract with Argo. In 1976 Keith contemplated building a subdivision on his land. He discussed his plans with Thomas Liles, one of Argo’s Board of Directors, and sent a legal description of the land to Argo. Subsequently Argo sent a letter to Keith stating that Argo would not be responsible for the construction of the water lines within the area Keith contemplated subdividing. Argo requested and received from Keith a utility easement for the location of the water lines valued at $3,000.

A meter was installed and sometime during January or February 1979, Keith connected his house up to Argo’s water system for one week and then disconnected it, claiming a lack of adequate water pressure. He reconnected his house to his prior existing well. There was testimony from Keith and other water customers that the water pressure in their homes was so low that it hardly was enough for a shower. The pressure when checked was below that required by the State Health Department. Some did as Keith and reconnected with their wells.

Keith filed suit claiming a breach of the Water User Agreement to furnish water to his property sufficient for his use. He claimed damages for the easement granted Argo, and the cost of installing the six-inch pipe.

The judge instructed the jury as to the damages they could award if they found a breach of contract by Argo. The jury returned a verdict in favor of Keith, awarding damages in the amount of $8,000. Argo moved for a new trial. From the denial of its motion, Argo appealed.

The only issue raised on appeal is whether the trial court erred in overruling Argo’s motion for a new trial. Argo asserts that the preponderance of the evidence clearly indicates that the jury verdict is excessive.

The authority vested in a court to disturb the verdict of a jury on the ground of excessive damages is one to be exercised with great caution. Donald v. Matheny, 276 Ala. 52, 158 So.2d 909 (1963). A trial court should indulge all reasonable presumptions in favor of a jury’s verdict on a motion for a new trial and should not disturb it unless convinced by the great weight of evidence that the verdict is wrong. W.M. Templeton & Son v. David, 233 Ala. 616, 173 So. 231 (1937).

Moreover, no ground for a new trial is more carefully scrutinized or more rigidly limited than that the verdict is contrary to the evidence. National Biscuit Co. v. Wilson, 256 Ala. 241, 54 So.2d 492 (1951). Where the verdict of the jury is responsive to the evidence and consistent with the general charge, it should not be disturbed by the court on motion for a new trial. Mangino v. Todd, 19 Ala.App. 486, 98 So. 323 (1923).

The record discloses that the issue of law as charged by the trial court was (a) whether there was a contract between Keith and Argo, (b) whether Keith performed all the requisites of the contract, (c) whether Argo had failed to perform under the contract, and (d) whether Keith sustained damages because of Argo’s nonperformance of the contract or failure to perform the contract. Bentley v. Lawson, 280 Ala. 220, 191 So.2d 372 (1966). The charges given the jury are taken as correct and not reviewable since no exceptions were made. Horace v. Van-Blaricon, 291 Ala. 530, 283 So.2d 421 (1973).

The jury had before it evidence that Keith expended monies for the cost of six-inch pipe to bring water to his property and the five tap-ons which he contracted for; that he deeded to Argo an easement on his land to install the pipe. All of this expenditure was stated to be for the purpose of conveying potable water sufficient to satisfy all of his needs. There was evidence from which the jury could find that after all of this, Argo failed to provide such water and thus breached the contract.

When the evidence is applied to the law as charged, the verdict of the jury is fully supported. Denial of a motion for a new trial on the ground that the verdict is contrary to the great preponderance of evidence is not error where there is evidence not only to support the trial court’s submission of the case to the jury but where it also supports the verdict. Alabama Power Co. v. Guy, 281 Ala. 583, 206 So.2d 594 (1967). That the verdict of the jury is in an amount less than it might have been under the evidence does not require reversal upon motion of the defendant. See, Austin v. Tennessee Biscuit Co., 255 Ala. 573, 52 So.2d 190 (1951).

The trial court’s denial of the motion for a new trial strengthens the presumption in favor of the jury verdict. Crum v. McGhee, 289 Ala. 244, 266 So.2d 855 (1972). ,

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


source: Caselaw Access Project

author: BRADLEY, Judge.

license: Public Domain

text:
    Carl B. McINNISH v. Sandra Jane W. McINNISH.
    Civ. 3860.
    Court of Civil Appeals of Alabama.
    Nov. 9, 1983.

      James E. Hart, Jr., Brewton, for appellant.
    William D. Melton, Evergreen, for appel-lee.
   BRADLEY, Judge.

Denial of a petition to modify a divorce decree; husband appeals.

The parties to this proceeding were divorced by decree of the Escambia County Circuit Court on February 28, 1978. The decree incorporated an agreement of the parties which awarded custody of the parties’ three minor children to the wife. The husband was to pay child support of $710 per month for three years commencing March of 1978 and on the third anniversary of the agreement the support would be reduced to $660 per month. On the sixth anniversary of the agreement, the child support would be increased to $885 per month and on the ninth anniversary it would be increased to $1,185 per month. On the tenth anniversary of the agreement, the child support would be reduced to $495-per month per child and would continue at that rate until each child reached the age of majority or entered college, whichever first occurred. The husband was also required to pay his ex-wife alimony over a period of one hundred twenty-two months.

On February 9, 1982, a joint petition to modify the divorce decree was filed by the parties to change custody of the oldest child, James Byron, from the wife to the husband and to change the amount of support for the other two children. The trial court approved the petition and made an adjustment in the husband’s child support payments.

On November 17, 1982 the husband filed a petition for modification seeking to reduce his child support and alimony payments due to a material change in his financial circumstances.

After a hearing on May 3, 1983, the trial court entered an order on May 23, 1983 denying the husband’s petition for modification of the decree rendered on February 9,1982. The decision was based on changed circumstances that occurred subsequent to February 9, 1982. The husband appeals.

The husband argues in brief that the trial court erred in considering only the changed circumstances from February 9, 1982 through May 3,1983. He contends that the trial court should have considered the changed circumstances that occurred since the last decree that awarded child support and alimony, which was the original divorce decree in 1978.

A trial court, in deciding whether to modify child support payments, is required to consider all changes in circumstances that have occurred since the last decree that awarded or actually modified child support, rather than only those changes which took place since the last decree that considered the question of modification. Rowe v. Boley, 392 So.2d 838 (Ala.Civ.App.1980), aff’d 392 So.2d 840 (Ala.1981).

Appellant contends that the February 9 modification was not the last decree which actually modified child support since there was only a change in child support of the child in his custody and not of the other two children still in his wife’s custody. We disagree.

Under the Rowe v. Boley rationale, the court’s approval of the parties’ joint petition to modify on February 9,1982 was the last decree to actually modify or fix child support. Although the custody of the parties’ eldest child was placed with the husband, the court also reduced the husband’s child support payment from $660 to $515 per month. Therefore, the February 9, 1982 decree modified the child support payments the husband had been required to make, and thus it was proper for the trial court at the May 3 hearing to consider only those factors and changes occurring from February 9 to May 3 on the issue of child support.

Accordingly, the trial court’s order restricting proof of changed circumstances for modification of child support to the period from February 9, 1982 to May 3, 1983 is affirmed.

The husband also argues that the trial court erroneously limited itself to a consideration of changed circumstances sufficient to modify alimony to the same period, i.e. from February 9, 1982 to May 3, 1983. We disagree.

Although the trial court’s order of May 23,1983 provided that the request for modification of the February 9, 1982 order, which was the child support modification, ' was being denied, we must assume that the trial court also denied the request for a modification of alimony.

One reason for so concluding is that in addition to the petition for modification of alimony and child support, the trial court, at the beginning of the hearing, informed the attorneys that proof of changed circumstances as to child support would be limited to the period February 9, 1982 to May 3, 1983, whereas the period for changed circumstances relating to the alimony issue could extend back to the original divorce decree. Furthermore, since the record does not contain all of the evidence adduced at the hearing, we assume that the trial court permitted the parties to introduce proof in accordance with its ruling.

The decision to permit the parties to introduce proof of changed circumstances back to the 1978 divorce decree on the alimony issue is in keeping with the rule established in Rowe v. Boley, supra, i.e. proof of changed circumstances since the last decree that awarded or actually modified child support (alimony) is admissible. The last decree that awarded alimony was the 1978 divorce decree; there has been no decree modifying alimony.

The decree of the trial court denying the relief requested in the November 17, 1982 petition for modification is affirmed.

Appellee’s request for attorney’s fee on appeal is denied.

AFFIRMED.

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


author: WRIGHT, Presiding Judge.

text:
    Henry F. LANGFORD v. Deborah Kay LANGFORD.
    Civ. 3683.
    Court of Civil Appeals of Alabama.
    Nov. 16, 1983.

      Norborne C. Stone, Jr. of Stone, Partin, Granade & Crosby, Bay Minette, for appellant.
    Taylor D. Wilkins, Jr. of Wilkins, Bankes-ter & Biles, Bay Minette, for appellee.
   WRIGHT, Presiding Judge.

This is a divorce case arising out of Baldwin County, Alabama.

Appellant Henry R. Langford (husband) and appellee Deborah Kay Langford (wife) were married in February 1976. Two children were born of this marriage; Melissa, age five and one-half years and Joshua, age seventeen months at the time of the trial in July 1982. The parties separated in July 1981 because of an “irrevocable” breakdown of their marriage. At the time of the trial the wife had custody of the children and was living in Pensacola, Florida, with her parents.

The trial court, after hearing the case ore tenus, rendered a final decree on October 19, 1982. The husband was ordered to pay $100 per week in child support, beginning one month prior to the decree until January 31, 1983; $150 per week from then until July 31, 1983; and $200 per week thereafter. The wife was further awarded $10,000 as “alimony in gross,” payable on or before July 31, 1984, plus eight percent interest. She was also awarded the income from a second mortgage derived from the sale of a home in Pensacola. That property, though owned by the husband prior to the marriage, was lived in by the family in the early years of the marriage. That income is $4,000 per year for three years. The court did not characterize this award.

The husband moved to reconsider or in the alternative for a new trial. We take judicial notice that the trial judge was suspended from the bench by operation of law on November 2, 1982. He was apparently unable to consider appellant’s motions. The motions were continued through February 2,1983, when they were denied by a successor judge.

The only issue raised on appeal is whether the trial court abused its discretion in the provisions of its decree relative to child support and alimony. We have read the testimony and find no support in the evidence for the amount of child support with its incremental increases.

The decree was rendered following an ore tenus hearing and is presumed correct on appeal if supported by the evidence. Wilson v. Wilson, 404 So.2d 76 (Ala.Civ.App.1981). The division of property and setting of alimony is within the sound discretion of the trial court and will not be reversed except for palpable abuse of that discretion. Mack v. Mack, 389 So.2d 1156 (Ala.Civ.App.1980).

The division of property does not have to be equal — only equitable. Each case must be decided on its own facts and circumstances. Parker v. Parker, 392 So.2d 229 (Ala.Civ.App.1980). Though there are no set standards, factors to be considered in the division of property and award of alimony are the future prospects of the parties, their ages, sex, health, station in life, length of marriage, and in proper cases the conduct of the parties with reference to the cause of the divorce. Wicks v. Wicks, 379 So.2d 612 (Ala.Civ.App.1980).

We do not find reversible error in the award of the $4,000 yearly income from the sale of the Pensacola property to the wife. That the home was owned by the husband prior to marriage is a factor to be considered, but it is not controlling in this case. § 30-2-51, Code of Alabama 1975; Wilson v. Wilson, 404 So.2d 76 (Ala.Civ.App.1981).

The child support payment increases scheduled for January 31,1983, and July 31, 1983, must be set aside. Though a divorced father must support his children reasonably according to his means, Boswell v. Boswell, 280 Ala. 53,189 So.2d 854 (1966), and the determination of the amount rests within the sound discretion of the trial court, Hall v. Hall, 391 So.2d 122 (Ala.Civ. App.1980), the “court is bound by the legal evidence or lack of it.” Alford v. Alford, 368 So.2d 295, 298 (Ala.Civ.App.1979). We have examined the record and find no justification for the ordered incremental increases in child support.

The husband is the owner and operator of a business engaged in prefabricating wooden trusses for use in the construction industry. His business is conducted on a parcel of land valued at approximately $30,000. There are two structures on the land, used in his business, valued at approximately $71,000.

There is a home located on a one-acre parcel which he values at $45,000 and the wife values at $80,000. There are nineteen acres adjoining the home which are valued at $2,100 an acre, or a total of $39,900.

The business property and the home are subject to mortgages totaling $70,683.60. The nineteen acres are subject to a purchase money mortgage to the grantor and a second mortgage to the bank to secure debts totaling $49,845.28 as of June 30, 1980. The real property was encumbered in the total amount of $120,525.88 plus interest. Additionally, he owes $73,776.78 to others.

Husband had his best year for income from his business in 1980. The best that has been determined from his poor records is that he made $18,219 that year. He is presently under audit by the Internal Revenue Service and the Alabama Department of Revenue for unpaid taxes. His business is presently losing money and is hurting for operating capital.

Under the decree of the trial court, he will be required to pay the total of $22,000 during the year ending July 31, 1984.

It is evident that he does not have presently the income to pay the ordered incremental child support. It is further evident that to meet the alimony in gross payment as ordered he will have to sell real estate. The home and adjoining acreage are so heavily encumbered with first and second mortgages that the indebtedness approaches or surpasses its apparent reasonable market value. The business property is heavily indebted also. To sell that property would appear to remove the ability of the husband to continue in business and produce income with which to pay child support.

It therefore appears from the evidence that the present circumstances of the husband are not such as will support the incremental increases in child support beginning January 31, 1983. We find such increases to be so unsupported by the evidence as to amount to an abuse of discretion. We order them to be set aside. However, we find the evidence to support the order of child support in the weekly amount of $100.

We reverse the decree which orders the payment of $10,000 to the wife as alimony in gross by July 31, 1984. Perhaps there may be an ability of the husband to sell some of the real estate or otherwise raise the funds to pay such sum or some other reasonable sum. However, it is this court’s opinion that such possibility should be considered by a judge presently on the bench. Therefore, that part of the decree is set aside, together with the vesting of all title to the real'property in the husband. The matter of alimony in gross and division of real property is remanded to the trial court for further consideration. Any further proceedings as to child support based upon circumstances arising since October 1982, may be considered as the court deems proper.

Affirmed as to payment of child support of $100 per week and the $4,000 per year from the Pensacola mortgage. Reversed as to the increment increases of child support beginning January 31, 1983, and the award of $10,000 alimony in gross payable with interest on July 31,1984. All other matters are affirmed.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED WITH DIRECTION.

BRADLEY and HOLMES, JJ., concur.


text:
    John T. TURNER v. Eunice Parker TURNER.
    Civ. 3847.
    Court of Civil Appeals of Alabama.
    Nov. 16, 1983.

      L.P. Sutley of Murchison & Sutley, Foley, for appellant.
    J. Don Foster and Thack H. Dyson of Foster, Brackin & Bolton, Foley, for appel-lee.
   EDWARD N. SCRUGGS, Retired Circuit Judge.

This is a divorce ease.

An ore tenus trial was held before the circuit court. In viewing the record with attendant presumptions which must be accorded the action of the trial court, the following supportive facts are revealed.

The first marriage of the parties was performed in 1951, and it was dissolved twenty-eight years later through a 1979 divorce. That divorce judgment approved an agreement of the parties whereby all of their assets were divided and, among those provisions, the wife received the home, and the husband was awarded another house. The husband agreed to pay monthly periodic alimony to the wife, which started at $500 and was later reduced by the terms of the agreement to $300.

They continued to see one another, and the wife testified that, as an inducement to their second marriage, the husband promised her, among other matters, that she would have half of his retirement. The remarriage of the parties occurred in April 1981. They resided at the wife’s house for about two months, when the husband moved to his home. Thereafter, for an indeterminable period of time, the wife cooked for them at her abode, but she would spend most nights under the husband’s roof.

The wife is fifty-two and the husband is fifty-four years of age. They had no children. She is a bookkeeper and earns $225 weekly. The husband testified that throughout both of their marriages, the wife worked equally as hard as the husband. Her gross estate is now generously evaluated at $115,000. She apparently still owns all of the property which she possessed at the time of their first divorce.

The husband is a Civil Service retiree with gross retirement benefits in 1982 of $19,158, which are subject to periodic cost of living increases. His 1982 net retirement proceeds after taxes approximated $15,000. Under his retirement program, he may earn through other employment up to eighty percent of his retirement benefits without any reduction in those benefits. In 1982, the husband was a part-time charter boat captain and earned $2,080 from that source. He is a cabinet maker and carpenter by trade, but has not charged either his church or friends for recent carpenter work performed for them. While he has a physical disability, he stated that he could work as a carpenter or cabinet maker when he feels able to do so. The evidence conflicted as to whether the husband is an alcoholic. Using the highest estimates, his gross estate was worth around $62,000. He has sold some of the personal property, such as his boat, which he was awarded by the first divorce judgment and he has reduced the cash which he received from the 1979 divorce to about $3,000.

The trial court rendered its judgment on May 24,1983, which divorced the parties on no fault grounds. The husband was ordered to pay to the wife as monthly periodic alimony a sum equal to thirty percent of his Civil Service retirement income remaining after taxes, and he was directed to provide the wife with health and hospitalization insurance coverage.

The husband timely appealed. He apparently complains as to the following trial occurrence:

“Q. All right. During that time that you were first married, isn’t it true that you were using his cheeking account to pay a lot of bills at his house?
“A. When we first married, did you say?
“Q. Yes, M’am.
“A. This is the second marriage we are talking about?
“Q. Right.
“A. At the time he was sleeping there for about two months, he was eating there and sleeping there, we did write checks on his account which were supposed to be his and our account — (interrupted).
“Q. It was his and your account. You were on it — (interrupted).
“A. —to pay the utilities.
“MR. FOSTER:
“You have to let the witness answer the question before you ask another one.
“THE COURT:
“This is all real interesting and it is probably relevant but I don’t care about it.”

The husband had already testified that he did not contend that the wife abused that checking account.

We fail to see how the observations of the trial court injuriously affected the rights of the husband or the outcome even in the slightest. Rule 45, A.R.A.P.; Rule 61, A.R.Civ.P. The materiality of that line of questions was slight at most, and the trial court had the discretion to limit the range of cross-examination as to this matter, especially in view of the husband’s admitted lack of any contest of the wife’s use of the bank account. Gregath v. Bates, 359 So.2d 404, 407 (Ala.Civ.App.1978); C. Gamble, McElroy’s Alabama Evidence § 136.01 at 287 (3d ed. 1977). Lastly, the husband did not object or otherwise raise any issue to the remarks of the trial court, and there was no showing as to what relevant evidence was being solicited by this series of questions. The husband’s argument on appeal raises the issue for the first time, which is not timely for our consideration. Holt v. Davidson, 388 So.2d 548 (Ala.1980); Hinds v. Hinds, 415 So.2d 1122, 1128 (Ala.Civ.App.1982). There is no error as to this issue.

The final appellate problem concerns whether the trial court, after an ore tenus trial, erred in awarding the periodic alimony to the wife. Since the trial court heard and observed these parties as they testified, the granting of the monthly alimony to the wife is presumed to be correct and must be affirmed on appeal unless the trial court was clearly wrong. Also, the award and amount of periodic alimony are matters which lie within the discretion of the trial court and may be reversed upon an appeal only for an abuse of the trial court’s judicial discretion. Wade v. Wade, 402 So.2d 1009 (Ala.Civ.App.1981); Morgan v. Morgan, 402 So.2d 984, 989 (Ala.Civ.App.), cert. denied, 402 So.2d 990 (Ala.1981).

The trial evidence has been conscientiously studied. The trial record has been read twice in its entirety and portions of it have been reviewed additional times. We are not convinced that the trial court abused its discretion or was palpably wrong in the award or amount of periodic alimony. We affirm the final judgment of the learned trial court.

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.

AFFIRMED.

All the Judges concur.


author: HOLMES, Judge.

text:
    TEAGUE BROTHERS TRANSFER & STORAGE COMPANY, INC., a corporation, v. Robert H. KINLOCH.
    Civ. 3852.
    Court of Civil Appeals of Alabama.
    Nov. 16, 1983.
    James W. Bodiford, Jr., Mobile, for appellant.
    Richard T. Dorman and Robin S. Brigham of Johnstone, Adams, May, Howard & Hill, Mobile, for appellee.
   HOLMES, Judge.

The plaintiff sued the defendant for conversion and breach of a bailment contract. After an ore tenus hearing, the trial court found for the plaintiff. A judgment of $2,415 was entered against the defendant. The defendant appeals and we affirm.

The dispositive issue is whether the evidence supports the judgment.

Viewing the record with the attendant presumptions accorded the trial court’s judgment, the following is pertinently revealed:

The plaintiff and his wife stopped in Mobile, Alabama, while en route to Florida. Personal property was stored with the defendant, who was in the business of storing personal property. The storage occurred in March 1981.

The plaintiff received a warehouse receipt from the defendant. The plaintiff signed the warehouse receipt as bailor of the goods. The plaintiff was listed on the warehouse receipt as the owner of the goods. The plaintiff paid the storage fee.

In April of 1981, the plaintiff and his wife separated. Thereafter, plaintiff’s wife went to the defendant and requested the goods and the defendant gave the goods to the wife.

The plaintiff then contacted the defendant and requested the goods. The defendant was, in view of the above, unable to deliver the goods and the plaintiff filed the instant lawsuit.

The following code section is applicable and dispositive of the instant appeal. Alabama Code § 7-7-403 (1975) in pertinent part provides as follows:

“(1) The bailee must deliver the goods to a person entitled under the document who complies with subsections (2) and (3), unless and to the extent that the bailee establishes any of the following:
“(a) Delivery of the goods to a person whose receipt was rightful as against the claimant;
“(b) Damage to or delay, loss or destruction of the goods for which the bailee is not liable;
“(c) Previous sale or other disposition of the goods in lawful enforcement of a lien or on warehouseman’s lawful termination of storage;
“(d) The exercise by a seller of his right to stop delivery pursuant to the provisions of the article on sales (section 7-2-705);
“(e) A diversion, reconsignment or other disposition pursuant to the provisions of this article (section 7-7-303) or tariff regulating such right;
“(f) Release, satisfaction or any other fact affording a personal defense against the claimant;
“(g) Any other lawful excuse.”

The defendant’s duty and obligation is, under this code section, clear. That duty and obligation is to deliver the goods to the “person entitled under the document,” etc.

The document in this case is the aforementioned warehouse receipt. The defendant, in this instance, did not deliver the goods to the person so entitled. The defendant delivered the goods to the wife of the person “entitled” to receive.

What this court said in Treadwell Ford v. Wallace, 49 Ala.App. 308, 271 So.2d 505 (1973), in quoting from Doyle v. Peerless Motor Car Co. of New England, 226 Mass. 561, 116 N.E. 257 (1917), is applicable in this case.

“ ‘A delivery to an unauthorized person is as much a conversion as would be a sale of the property, or an appropriation of it to the bailee’s own use. In such cases, neither a sincere and apparently well founded belief that the tortious act was right, nor the exercise of any degree of care, constitutes a defense even to a gratuitous bailee.’ ”

49 Ala.App. at 314, 271 So.2d at 510.

The defendant, through able counsel, contends that defendant’s action in delivering the goods to the wife falls within § 7-7-403(l)(g), “any other lawful excuse.”

The defendant’s specific contentions are that certain verbal representations made by the plaintiff, and the wife’s possession of the warehouse receipt “excused” the defendant’s action. In addition, the defendant apparently makes some contention that its actions were justified because it acted in good faith.

Suffice it to say that the defendant’s specific contentions are in large measure based on disputed facts or on facts not contained in the record.

In any event, it was the trial court’s duty to resolve conflict in the testimony. The trial court did so resolve as we have indicated above. Where the evidence is in conflict, it is the function of the trier of fact to resolve the conflict and reach a decision. The trial court’s resolution of the conflict will not be reversed on appeal unless palpably erroneous. See Harden v. Harden, 418 So.2d 159 (Ala.Civ.App.1982), and cases cited therein. Here, the trial court is not palpably erroneous.

As to “good faith” contention, in this instance see Treadwell Ford v. Wallace, 49 Ala.App. 308, 271 So.2d 505 (1973).

As seen from the above, we find the trial court’s action in finding for the plaintiff to be supported by the evidence.

The case is due to be affirmed.

AFFIRMED.

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


text:
    SUN KUM BAMBERG (nee Chong) v. James Percy BAMBERG.
    Civ. 3939.
    Court of Civil Appeals of Alabama.
    Nov. 16, 1983.
    Clarence T. Heliums, Jr. and Jack W. Meigs, Centreville, for appellant.
    No brief for appellee.
   EDWARD N. SCRUGGS, Retired Circuit Judge.

This is a domestic relations preliminary injunction case.

The Bambergs were divorced on September 2, 1982. The judgment approved an agreement of the parties which granted the mother, Sun Kum Bamberg, custody of the children who are now seven and five years of age.

On June 1,1983 the father filed an unverified petition for a temporary writ of injunction wherein the only allegation which could be reasonably construed to be the foundation for the issuance of a preliminary injunction was the following:

“Defendant is now planning on or before June 3, 1983, to take the children with her to Grovetown, Georgia. According to what information I can obtain the children would be left alone each day with no one to care for them or see that they attend school.”

The mother’s answer denied that she would leave the children alone. Since the divorce, the mother and children had been residing with the paternal grandparents in Perry County, Alabama until the mother left the children there while she sought and apparently obtained employment in Georgia. The only prayer for specific relief was that the mother “be enjoined from moving the children from where they are at [the] present time pending a hearing on all the facts in this case.”

On June 1, 1983 the trial court ordered that a copy of the petition for a temporary writ of injunction be served upon the mother and the hearing thereon was set for June 3.She was served with a copy of the order and petition on June 2 and she filed her answer to the petition on the following day. While the hearing was held on June 3, a judgment was not entered by the trial court until August 4. The judgment stated that the trial court considered the father’s petition “without swearing any witnesses or taking any testimony,” and the mother was enjoined from removing the children from the residence of the paternal grandparents until further order of the trial court. The Alabama and Georgia Departments of Pensions and Security were directed to investigate the homes of the mother and of the paternal grandparents. The mother duly appealed under the authority of rule 4(a)(1) of the Alabama Rules of Appellate Procedure. The father has not favored this court with a brief.

“Evidence that goes beyond the unverified allegations of the pleadings and motion papers must be presented to support or oppose a motion for a preliminary injunction.” 11 C. Wright & A. Miller, Federal Practice and Procedure § 2949, at 469 (1973). In other words, at a preliminary injunction hearing an unverified pleading, without proof of its averments, is insufficient in and of itself upon which to base the issuance of a preliminary injunction. The father’s petition was not verified and that pleading was the only evidentiary foundation for the trial court’s issuance of the preliminary injunction. While rule 65 of the Alabama Rules of Civil Procedure does not explicitly require that oral testimony be presented at a preliminary injunction hearing, some type of evidence which substantiates the pleadings is implicitly required by subsection (a)(2) of that rule. In order to comply with procedural due process, notice and an opportunity to be heard are necessary under rule 65(a). The opportunity to be heard requires a trial of any pertinent contested issue of fact. The trial of a litigated factual question necessitates the opportunity by all sides to present pertinent evidence as to whether the preliminary injunction should, or should not, be granted. At a preliminary injunction hearing, that evidence may take the form of a verified pleading, an affidavit, a deposition, a stipulation, an admission, a written exhibit and/or oral testimony; however, unsworn, or unaffirmed, statements of parties or factual assertions and arguments of counsel would not meet muster. Here, no supportive evidence concerning the unverified allegations of the father’s petition was presented to the trial court in any form whatsoever. The trial court erred in the issuance of the preliminary injunction which was solely based upon the father’s unsworn petition.

The same result would follow if the trial court had issued a temporary restraining order, for at least an affidavit or verified complaint containing the necessary proof is required by rule 65(b) before a temporary restraining order may be issued.

We must reverse this case for a complete lack of any supportive evidence for the issuance of the preliminary injunction. The preliminary injunction as entered by the trial court on August 4, 1983 is hereby vacated and set aside.

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

REVERSED AND REMANDED; PRELIMINARY INJUNCTION VACATED.

All the Judges concur.


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    Susan W. OLSEN and Department of Industrial Relations v. MOFFAT ROAD VETERINARY CLINIC.
    Civ. 3832.
    Court of Civil Appeals of Alabama.
    Nov. 23, 1983.

      Joseph P. Givhan, Jr., Mobile, for appellant Susan W. Olsen.
    George Cocoris, Gen. Counsel, and Frank D. Marsh, Asst. Gen. Counsel, Montgomery, for State Dept, of Industrial Relations.
    Mark R. Ulmer, Mobile, for appellee.
   HOLMES, Judge.

This is an unemployment compensation case.

Olsen (claimant) filed a claim for unemployment compensation in August 1981. A determination favorable to the claimant was made on the claim and notice of that determination was mailed to the employer, Moffat Road Veterinary Clinic. The employer contends that upon receiving the notice of determination, Dr. George, operator of the clinic, immediately wrote a letter stating that the employer was appealing the determination pursuant to § 25 — 4— 91(e)(1), Ala.Code (1975), and mailed the appeal within the fifteen-day period provided by the statute. According to its records the Department of Industrial Relations (Department) never received the letter and when the statutory time passed, the Department ruled that the determination had become final.

The employer thereafter requested a re-determination hearing pursuant to § 25^4-91(c), Ala.Code (1975), based on the grounds that the claimant had misrepresented the facts of her claim. The employer also requested a hearing on the merits.

The appeals referee ruled that the employer was not entitled to a hearing on the merits because the claim had become final and denied a redetermination of the claim finding that the claimant had not misrepresented any facts.

The employer appealed the appeal referee’s decision to the board of appeals which affirmed the referee’s decision. The employer then appealed to the Circuit Court of Mobile County.

The only issue decided by the circuit court was whether the employer did in fact mail the letter and whether that action constituted “filing an appeal” from the notice of determination according to the provisions of § 25-4-91(e)(l), Ala.Code (1975). The pertinent part of § 25-4-91 reads:

“(e) Finality of determinations and notice of payment.
“(1) Unless any party to whom notice of determination is required to be given shall, within seven calendar days after delivery of such notice or within 15 calendar days after such notice was mailed to his last known address, file an appeal from such decision, such decision shall be deemed final,. .. ”

The employer alleged that he had mailed the appeal to the Department within the fifteen-day time limit. It was stipulated that the Department’s records would show that the appeal was not received.

After the hearing, the trial court ruled that the employer did mail the appeal within the time limit and that action satisfied the “filing” requirement of § 25-4-91(e)(l). Accordingly, the trial court remanded the case back for a hearing on the merits in the administrative agency.

The Department and the claimant now appeal the trial court’s ruling.

The dispositive issue on appeal is whether the employer timely “filed” his appeal where the employer’s notice of appeal was mailed within the statutory time but never received by the Department. In other words, we are called upon to determine the meaning of the word “file” as it is used in § 25 — 4—91(e)(1), Ala.Code (1975).

The word “file” has never been defined in the context of § 25-4-91.

Based upon consideration of several factors, we find that merely mailing notice of appeal within the time is not a “filing” as intended by § 25-4-91(e)(l). The historical definition of the word in other areas of the law, the definition other jurisdictions apply in connection with unemployment compensation laws, and the context in which the word is used in relation to Alabama’s unemployment compensation laws lead us to the conclusion that the notice of appeal must be received to be considered “filed.”

At the outset we note that a statute will be given its plain meaning and the language in a statute should be considered to mean what it says. Ex parte Madison County, 406 So.2d 398 (Ala.1981); Quick v. Utotem of Alabama, Inc., 365 So.2d 1245 (Ala.Civ.App.1979).

Historically, the word “file” has been consistently defined as requiring that the paper to be filed be placed in the custody of or delivered to the proper official. Covington Bros. Motor Co., Inc. v. Robinson, 239 Ala. 226,194 So. 663 (1940) (filing amendment to schedule of creditors in bankruptcy proceedings); Falley v. Falley, 163 Ala. 626, 50 So. 894 (1909) (filing written request to have divorce case adjudicated during court vacation); Phillips, Goldsby & Blevins v. Beene’s Administrator, 38 Ala. 248 (1862).

More recent cases also apply the traditional definition of “file.” Moutry v. State, 359 So.2d 388 (Ala.Civ.App.1978) deals with a statute regulating notice of appeal in paternity proceedings. There it was ruled that filing, as contemplated by the statute in question, is not complete until the notice is delivered to the proper filing officer. “A document has not been filed until it has actually been received by the court; mere mailing is not enough.” Moutry v. State, 359 So.2d 388, 390 (Ala.Civ.App.1978). See also Holmes v. Powell, 363 So.2d 760 (Ala.1978) (dismissal of appeal in boundary dispute mailed within time but received one day late); Crawford v. Ray & Pearman Lincoln Mercury, 420 So.2d 269 (Ala.Civ. App.1982) (appeal to circuit court from district court judgment dismissed when filed one day late).

The Supreme Court of Alabama has also addressed the question of whether mailing within the time constitutes a “filing.” In re State, ex rel. Attorney General, 185 Ala. 347, 64 So. 310 (1914), the Court held that an application for rehearing in an appellate court that was mailed and reached the clerk’s office a day late was not properly filed according to the statute. The Court went on to state that the mail is only the agent or agency of the party applying for rehearing and the chance of delay is always a contingency, the happening of which the applicant must assume. Also, in Ex parte State ex rel. Breitling, 221 Ala. 398,128 So. 788 (1930), the Supreme Court held that the word “file” in the statute providing for commencement of a suit on “filing” a complaint requires delivery to the official required to file papers. In Breitling the complaint was placed in the court clerk’s mail box where it remained until time had lapsed.

We feel obligated to caution at this point that we in no way are dealing with the merits of the case at bar in relation to the merits of the cases cited above. We discuss these cases only for historical and definitional purposes.

A majority of other jurisdictions agree that the definition of filing requires delivery to the proper official. See 16A Words & Phrases File (perm. ed. 1959). The Delaware case, National Vulcanized Fibre Co. v. Unemployment Compensation Commission, 46 Del. 229, 82 A.2d 725, 726 (1951), is representative and almost identical factually to the present case. The Delaware statute in effect at the time required that:

“Unless the claimant or any such interested party, within five calendar days after the delivery of the deputy’s notification, or within seven calendar days after such notification was mailed to his last known address, files an appeal from such decision, such decision shall be final and benefits shall be paid or denied in accordance therewith.”

In National Vulcanized Fibre, the claimant posted her notice of appeal on the last day of the time period, but it was not received until the day after. The Delaware Court rejected the claimant’s argument that because the statute authorizes the unemployment commission to give notice by mail and makes no provision concerning actual receipt, the claimant should not have a greater burden than the commission in appealing and the words “files an appeal” should require only a mailing within the prescribed time. The Delaware Court reasoned that had the legislature intended the word “file” to mean “mail” it could have easily provided that an appeal mailed within the time would meet the requirements. The Delaware court defined “file” as “to deliver a paper or instrument to the proper officer or officers so that it is received to be kept on file or among the records of office.”

Considering the use of the word in the context of Alabama’s statute, it appears that “files” requires receipt of the appeal within the time limit. The legislature provided in § 25-4-91 that an interested party has seven days from the delivery of notice within which to appeal. It further provided that where notice is mailed, the interested party has fifteen days to appeal. It appears to this court that the extra days are allowed when the mail is used in order to give the interested party sufficient time to receive the notice of determination and perfect an appeal. To now hold that the appeal is filed when mailed would be to, if effect, extend the time provided by the statute. This is so especially since the legislature recognized that use of the mails should allow a longer time period in which to appeal.

In view of the above, the employer’s appeal of the director’s determination of the claim was not timely filed. Therefore, we find that the learned trial judge erred in determining as a matter of law that mailing the appeal within the time limit constitutes a filing as intended by § 25-4-91, Ala.Code (1975).

Needless to say, we should not be understood as holding that an appeal under § 25-4-91 can never be mailed, only that it must be received within the time limit.

This case is due to be reversed.

REVERSED AND REMANDED.

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


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    Helen Keeton SPRINKLE v. Herschel Eugene SPRINKLE.
    Civ. 3861.
    Court of Civil Appeals of Alabama.
    Nov. 23, 1983.

      Roderick Beddow, Jr. of Beddow, Fullan & Vowell, Birmingham, for appellant.
    Bill Fite, Hamilton, for appellee.
   HOLMES, Judge.

This is a divorce case.

After an ore terms hearing, the trial court divorced the parties and effected a property division. The trial court did not award the wife periodic alimony or requested attorney’s fees. The wife appeals.

Viewing the record with the attendant presumptions, the following is revealed:

The parties to this case are in their fifties. They were married some thirty years and had two children, both adults at the time of the hearing.

When the parties first married, they had very little in the way of material things, but over the years they were able to improve their financial situation and by the time of the divorce they had accumulated considerable property. They both attended high school and the husband worked in the coal mining business most of the marriage. Although the evidence indicates that the husband’s income varies from year to year, it can be said that he earns approximately $20,000 a year net.

The wife has worked outside the home during most of the marriage as well as keeping the homeplace and raising the children. At the time of the divorce, the wife was employed at a bank, earning approximately $9,000 yearly. In addition, the parties had other sources of income, most notably 10% of an estate that consists of land producing mineral royalties. There was testimony from the husband that both parties would receive as much as $150,000 from the mineral royalties alone. There was evidence that almost 500,000 tons of coal reserves are in the estate and it was stipulated that each party had received $13,450 from November 1982 through May 1983, as their share of royalties.

There was quite a bit of evidence concerning the husband’s misconduct which this court will not detail. Suffice it to say that the husband committed some acts of adultery and physical cruelty spanning a period of several years, lasting up until the parties separated.

After hearing all the evidence, the trial court, in effect, equally divided the parties’ property between them. The husband was awarded an 81-acre farm in Walker County and two additional acres also in Walker County. The husband also received several vehicles, tractors, and other farm equipment along with other personal property. The wife received thirteen acres of land in Walker County and two lots in Florida. In addition, the wife received a 1980 automobile and a 1976 station wagon, household furniture, a riding mower, a travel trailer, $2,000 in savings, church bonds, and a $5,000 certificate of deposit, among other items of personal property. Both parties got to keep their interest in the 10% of the estate mentioned previously. The parties had divided the 10% equally before the divorce.

The wife now appeals, contending through able counsel that the trial court abused its discretion in failing to award periodic alimony and in dividing the property. The wife also contends that the trial court erred in refusing to award an attorney’s fee.

It almost goes without saying that in the areas of alimony and property division, such matters fall within the sound judicial discretion of the trial court and the trial court’s decision in regard to these subjects will not be disturbed on appeal absent a plain and palpable abuse of discretion. Perkins v. Perkins, 419 So.2d 593 (Ala.Civ.App.1982). Also well-known is the ore tenus rule that, where the trial judge personally heard the evidence, the judgment appealed from is presumed correct on appeal and may not be altered if it was supported by legal evidence, unless the trial court’s decision was palpably wrong. Perkins v. Perkins, 419 So.2d 593 (Ala.Civ.App.1982).

Each case must be decided on its own facts and circumstances; there are no fixed standards for dividing the parties’ property. In making an equitable division of property, some factors to be considered are the future prospects of the parties, their ages, sex, health, station in life, length of marriage, and the conduct of the parties in regard to the cause of the divorce. Mack v. Mack, 389 So.2d 1156 (Ala.Civ.App.1980).

Considering all of the evidence, this court cannot say that the trial court’s decision regarding periodic alimony and the division of property was plainly and palpably wrong.

In large measure, both parties received a fairly equal dollar value on the division of property with the wife receiving the larger share. The wife also can expect to realize a steady income from her 5% of the estate mentioned above. The wife has a job paying a regular income albeit at somewhere around minimum wage or below. The wife’s earning capacity is not as great as the husband’s; however, her standard of living should not fall appreciably below what she enjoyed during the marriage, if any.

In view of the above, this court cannot say that the trial court abused its discretion in the division of property. The wife received somewhat more than half of the parties’ assets. Giving the presumptions accorded the trial court due regard, we are not prepared to say that the division of property is inequitable.

The same facts and analysis can be applied to the trial court’s decision not to award the wife periodic alimony. The equitable division of property, the wife’s income from her job, and her share of the mineral royalties mentioned earlier are all factors that support the trial court’s decision. As stated previously, the wife’s standard of living, or station in life, should remain at about the same level as before the divorce.

It has been held that the purpose of the alimony statute is to preserve, insofar as possible, the economic status quo of the parties as it existed during the marriage. § 30-2-51, Ala.Code (1975); Madden v. Madden, 399 So.2d 304 (Ala.Civ.App.1981).

Even though the husband’s misconduct might be considered substantial, the failure to award periodic alimony is somewhat offset by the equitable division of property and the wife’s separate estate and income. For this court to say that the husband’s misconduct warranted an award of periodic alimony would be, in view of the circumstances and the presumptions accorded the trial court, to substitute our judgment for that of the trial court. This the law does not permit. Allen v. Allen, 385 So.2d 1323 (Ala.Civ.App.1980). However, we do find that the trial court erred in not at least reserving the right to award periodic alimony in the future. We therefore reverse on this ground. Parker v. Parker, 392 So.2d 229 (Ala.Civ.App.1980).

The wife’s limited earning capacity as compared to the husband’s, the wife’s age, the length of the marriage, and the husband’s misconduct indicate to this court that the trial court should have at least reserved the right to award periodic alimony in the future. This is so, especially in view of the fact that the wife’s interest in the 10% estate mentioned above constitutes a major source of her income and there is no assurance on how long this might continue. Reserving the right to award alimony would be more in line with the above-stated policy of the alimony statute in holding the economic status quo of the parties.

The wife next contends that the trial court erred in refusing her request for attorney’s fees. We do not agree.

An award of attorney’s fees rests in the sound discretion of the trial court which must consider, among other factors, the earning capacity and the financial circumstances of the parties. Gilliland v. Gilliland, 422 So.2d 299 (Ala.Civ.App.1982). In view of the foregoing, we do not find that the trial court abused its discretion in refusing to award attorney’s fees. The award of attorney’s fees is controlled by the same principle of law as is the award of alimony. It is a matter for the exercise of the judicial discretion of the trial court. Day v. Day, 360 So.2d 1030 (Ala.Civ.App.1978). In view of the wife’s somewhat “better than average” financial situation after the divorce, this court cannot say that the failure to award attorney’s fees is error requiring reversal.

On appeal, the wife requests an attorney’s fee. Considering the entire facts and circumstances and in light of the trial court’s actions and what this court has said above, an award of $1,000 is hereby made. The husband’s request for attorney’s fees is denied.

This case is affirmed in part, reversed in part, and remanded with directions for the trial court to reserve the right to award periodic alimony.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED WITH DIRECTIONS.

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


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    Tommy DANIELS and National Security Fire & Casualty Company v. John TURNER.
    Civ. 3872.
    Court of Civil Appeals of Alabama.
    Nov. 23, 1983.
    Gary W. Lackey, Scottsboro, for appellants.
    Robert E. Paden of Paden, Green, Paden & Bivona, Bessemer, for appellee.
   BRADLEY, Judge.

Defendants, Tommy Daniels and National Security Fire and Casualty Company, appeal from a judgment in favor of plaintiff, John Turner, in the amount of $6,000.

John Turner was involved in an automobile accident in which his 1981 Toyota Corolla was damaged. National Security Fire and Casualty Company (National Security), through its adjuster, Tommy Daniels, suggested that Turner obtain bids for the repair of the vehicle. Bids ranging from $1,862.84 to $1,172.37 were obtained and the low bidder, Royal Oldsmobile, Inc. (Royal), was selected to do the repairs.

When Turner picked up his car at Royal, he was told that the repairs had been completed but that “it was not right” and that “it should have a new quarter panel put on.” Turner, however, accepted the car from Royal and later determined that his car had not been properly repaired. He then obtained bids from two body shops to correct the problems with his car. The highest of these bids was $1,695.50.

Not being able to persuade National Security to pay for the additional repairs to his vehicle, Turner filed this action. The complaint was for breach of contract and fraud. After a jury trial a verdict in the amount of $6,000 plus interest was rendered in favor of Turner for breach of contract.

National Security and Daniels filed a motion for judgment n.o.v. or, in the alternative, for a new trial or a remittitur. Motion denied. National Security and Daniels appeal.

The sole issue here is whether the verdict and judgment are excessive and unsupported by the evidence.

“[T]he measure of damages for injury to personal property is generally the difference in the reasonable market value immediately before and after the injury. Crump v. Geer Brothers, Inc., 336 So.2d 1091 (Ala.1976); Fuller v. Martin, 41 Ala.App. 160, 125 So.2d 4 [Ala.Ct.App.1960]. The owner of property is qualified to state his opinion as to value before and after injury. Chambers v. Burgess, 50 Ala.App. 591, 281 So.2d 643 [Ala.Civ.App.1972]; Parker v. Muse, 47 Ala.App. 84, 250 So.2d 688 [Ala.Civ.App.1971]. Evidence of the cost of repairs is a factor which the trier of fact is authorized to consider in determining the true measure of damages. Arrick v. Fanning, 35 Ala. App. 409, 47 So.2d 708 [Ala.Ct.App.1950], Additionally, whether it is possible to restore the automobile, through repair, to as good condition as before the injury, is relevant to the question of damages. Donaldson v. Foreman, 213 Ala. 232, 104 So. 406 (1925). The cost of repairs alone, however, is not the measure of damages. Winn-Dixie Montgomery, Inc. v. Holt, 57 Ala.App. 499, 329 So.2d 556 [Ala.Civ.App.1976],
“On a question of fact, the finding of the trial court is presumed to be correct. Adams Supply Company v. United States Fidelity & Guaranty Company, 269 Ala. 171, 111 So.2d 906 (1959). Having the standing of a jury verdict, such finding will not be set aside on appeal unless, after allowing all reasonable inferences in favor of its correctness, there exists in the record such a preponderance of evidence against it that this court must find it palpably wrong and unjust. Ingram v. Bank of Brewton, 340 So.2d 815 (Ala.Civ.App.1976).”

Sunshine Homes v. Hogan, 408 So.2d 149 (Ala.Civ.App.1981).

Turner, the owner of the vehicle, testified that the value of his car just before the accident was $8,900 and its value just after the accident was $5,000. He later testified that the car’s value after it had been repaired by Royal was $6,000. The testimony as to the before and after value of the vehicle is undisputed.

There is evidence in the record that the repairs made by Royal were not properly done and additional repairs were needed to restore the vehicle to its former condition. The highest estimate of cost for this to be done was about $1,700.

The testimony was consistent to- the effect that the car had not been properly repaired and that additional repairs were needed to restore it to its former condition. The evidence is also consistent to the effect that the car could be restored to its former condition with the proper repairs being made to it.

The difference in the before and after value of the car of $3,900 represents the largest amount of damages suffered by the owner. The cost of repairs to restore the vehicle to its condition before the accident, as reflected by the evidence and including the repairs made by Royal, did not exceed $3,000. Therefore, the evidence does not support a verdict in excess of $3,900; yet the jury returned a verdict of $6,000. The inescapable conclusion is that the verdict is excessive, and cannot stand.

The judgment of the trial court is affirmed conditioned upon the plaintiff filing in this court within fourteen days of this opinion a remittitur in the amount of $2,100, which would give plaintiff a judgment for $3,900; otherwise the judgment of the trial court is reversed and the cause remanded for a new trial. § 12-22-71, Code 1975.

AFFIRMED CONDITIONALLY.

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


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    Elizabeth W. WALKER v. CAROLINA MILLS LUMBER COMPANY, INC.
    Civ. 3895.
    Court of Civil Appeals of Alabama.
    Nov. 23, 1983.
    Irvin Grodsky of Grodsky & Mitchell, Mobile, for appellant.
    Wade B. Perry, Jr. and K.W. Michael Chambers of Johnstone, Adams, May, Howard & Hill, Mobile, for appellee.
   HOLMES, Judge.

This garnishment proceeding comes before this court for a second time. Plaintiff appeals the money judgment entered by the trial court on remand, contending that the trial court failed to properly implement the mandate issued by this court on the prior appeal of this action. See Walker v. Carolina Mills Lumber Co., 429 So.2d 1065 (Ala.Civ.App.1983).

At this point we note that some might consider our prior opinion and mandate not to be a paragon of clarity. However, the facts of the case and other factors may in large measure have contributed to any misunderstanding as to what this court held. In any event, by virtue of this appeal we have an opportunity to hopefully to some be more precise. See Walker v. Humana Medical Corp., 423 So.2d 891 (Ala.Civ.App.1982).

After having considered the briefs of counsel, this court’s earlier opinion, and the judgment entered by the trial court on remand, this court finds that the trial court properly implemented the earlier opinion of this court and that its judgment is due to be affirmed.

The complicated facts of this proceeding are as follows: plaintiff, Elizabeth W. Walker, was divorced from her husband, Richard D. Walker, Jr., in 1960. On February 12,1980, she filed a petition for rule nisi in Mobile County Circuit Court to collect $41,200 worth of child support and alimony arrearages. (At about this same time, Mr. Walker talked with his employer about having his new wife’s name substituted for his own on the company payroll records.) On May 26, 1980, the circuit court entered a judgment in favor of the former Mrs. Walker, fixing arrearages at $43,561. Thereafter, on July 21, 1980, Mrs. Walker caused a writ of garnishment to be served on her ex-husband’s employer, Carolina Mills Lumber Co. On that date Mr. Walker’s commission account with Carolina Mills carried a balance of $7,365.09.

Carolina Mills structured its financial relationships with its salesmen on commission in a peculiar manner. A thorough understanding of that procedure is necessary for review of the trial court’s action; however, for the sake of brevity, that procedure will not be described here; instead, the reader is referred to the earlier opinion. See 429 So.2d at 1067, 1069-70. Suffice it to say here that many of the payments Carolina Mills made to its salesmen did not represent an earned salary, but were instead cash advances, or loans, and put the salesmen in a position of being “net debtors” to Carolina Mills. In our earlier opinion this court found that such cash advances (which are in reality loans) are not subject to the garnishment process. Id. at 1070.

Sometime in late July, after having been served with the garnishment writ, Carolina Mills allowed both Mr. Walker and his current wife to withdraw amounts from Mr. Walker’s account. Then, on July 31, 1980, at the end of its accounting year, Carolina Mills simultaneously credited Walker’s account for an additional $7,972.10 in commissions earned and debited it for $23,-156.95, representing an uncollectable account. This large debit left Mr. Walker’s account with a negative balance, making him a net debtor to Carolina Mills.

During August of 1980 both Mr. Walker and his current wife again made withdrawals from his account. However, on August 31, 1980, the company transferred the commission account into his current wife’s name and all subsequent withdrawals were made by her. Because of her withdrawals and because of various chargebacks made by Carolina Mills, the account carried a negative balance through at least March 31, 1981. In issuing a judgment for plaintiff on the garnishment writ, the trial court allowed the writ to attach to the $7,365.09 balance in the account on July 21,1980, and to all draws made by Mr. Walker after that date, finding that all payments to Walker by Carolina Mills were garnishable. The trial court also found that fraudulent intent motivated Mr. Walker to assign his account to his current wife. However, the court refused to garnish any amounts drawn by the current Mrs. Walker, because it was under the mistaken impression that a finding of fraudulent collusion on the part of Carolina Mills was necessary as a matter of law to set aside the assignment.

Plaintiff appealed and this court affirmed the garnishment of the $7,365.09, but reversed the trial court’s refusal to set aside the assignment to the current Mrs. Walker. This court also extensively discussed Carolina Mills’ financial relations with its salesmen, and held as a matter of law that cash advances, being in the nature of loans, are not garnishable. At the time we discussed those advances, we were under the mistaken impression that the trial court had found such amounts not to be garnishable. See id. at 1070. (“The trial court so found, and we agree, that ... advances will not fall under the writ.”) However, as plaintiff points out, the trial court had in fact treated advances as garnishable, including such amounts in its award to plaintiff. Therefore, this court, when its prior opinion is read in its entirety, reversed the trial court’s judgment on the advancement issue. However, because of our mistaken assumption that the trial court had found as we found on that issue, we did not specifically state in our last paragraph that we were reversing on the advancement issue. We noted only that we were reversing on the fraud issue. We then remanded to the trial court for entry of a new judgment.

On remand, the trial court awarded plaintiff the entire $7,365.09 balance in Mr. Walker’s account on the date the writ was served. The trial court also awarded plaintiff 25% of all amounts withdrawn by either Mr. Walker or his current wife before July 31, 1980. See § 6-10-7, Ala.Code (1975). The trial court did, however, refuse to garnish any amounts paid to either Mr. Walker or his current wife after July 31, 1980, because Walker’s commission account apparently carried a negative balance after that date and, therefore, all payments were in reality loans, or cash advancements.

Plaintiff now appeals, emphasizing the directions in the last paragraph of our opinion and the mandate issued simultaneously which both said that we were reversing only the fraud issue. Plaintiff, through able counsel, contends that the trial court’s order on remand is inconsistent with those directions because it held cash advances not garnishable. Put another way, plaintiff contends that because our mandate and last paragraph failed to specifically state that we actually were also reversing on the cash advances issue, on remand the trial court was bound to apply its own (inconsistent) finding on that issue and hold all payments by Carolina Mills to be garnishable. This argument cannot be accepted.

On remand, the issues decided by the appellate court become law of the case and the trial court’s duty is to comply with the appellate mandate “according to its true intent and meaning, as determined by the directions given by the reviewing court.” Ex parte Alabama Power Co., 431 So.2d 151 (Ala.1983) (emphasis added). When the mandate is not clear, the opinion of the court should be consulted. See Cherokee Nation v. Oklahoma, 461 F.2d 674 (10th Cir.), cert. denied, 409 U.S. 1039, 93 S.Ct. 521, 34 L.Ed.2d 489 (1972). In this case, the “true intent and meaning” of this court to treat appropriate advances, such as we have in this instance, as not being gar-nishable was to this court apparent in our prior opinion. The trial court recognized this and complied with the intent and meaning of our decision. Accordingly, its decision is due to be affirmed.

AFFIRMED.

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


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

text:
    Ernest Toles ROBINSON v. STATE.
    6 Div. 893.
    Court of Criminal Appeals of Alabama.
    March 29, 1983.
    On Rehearing Aug. 30, 1983.
    On Return to Remand Nov. 1, 1983.

      Mark B. Poison, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen., and Patricia E. Guthrie, Asst. Atty. Gen., for ap-pellee.
   LEIGH M. CLARK, Retired Circuit Judge.

A jury found defendant (appellant) guilty of theft in the second degree of property alleged in the indictment as “Three Men’s shirts of the aggregate value of Seventy Two Dollars, the property of Rich’s, Inc., (Ala.), a corporation, taken from or in a building where said property was stored or kept for sale.” The alleged theft of property in the second degree is covered by Alabama Criminal Code § 13A-8-4(e), which provides:

“The theft of property which exceeds $25.00 in value, and which is taken from or in a building where said property is sold or stored constitutes theft of property in the second degree.”

Three of the five issues presented by appellant pertain to the question of the sufficiency of the evidence to support the verdict. As to each of them, appellant states that it is “Raised, not argued.” Our review of the evidence convinces us that it is sufficient to support the verdict and that no reasonable argument can be made to the contrary. The only eyewitnesses who testified as to the incident that resulted in the arrest and prosecution of appellant were two retail security detectives of Rich’s, Deborah Tipton and Kenneth MacMahon. We quote from appellant’s brief as to a part of the testimony of Deborah Tipton:

“That she observed two black males in the Trend department both carrying Piz-itz bags. That one black male put three white Izod shirts into a Pizitz bag. That she called a second store detective by the name of Kenneth MacMahon on her walkie talkie. That she was approximately 100 to 125 feet when she first observed them. That they began walking around looking at merchandise and she continued to observe them for five, ten or fifteen minutes. That the Defendant was one of the black males in the store on that occasion. That when Detective MacMahon arrived in the Men’s Department he was approximately fifteen to twenty feet away from the two black males. That Appellant put the shirts into the Pizitz bag which was held by the other black male, later identified as Willie Peak. That the two black males walked out of the store.... That the two black males were taken to the security office on the second floor. That they arrived in the office at approximately 3:10 and remained until the Birmingham Police arrived and the black males were turned over to them at approximately 4:20.... That after inspecting the sack they found three Izod shirts of the value of $72.00, two record albums from Music-land and an electric football game from Radio Shack.”

As to the testimony of Mr. Kenneth MacMahon, we quote from a part of appellant’s brief as follows:

“That in response to that call [the call from Ms. Tipton] he went to the Trend area where he observed two black males at a distance of approximately 100 feet. That he moved to within 15 feet and observed one black male holding a large shopping bag very close to the rack of slacks and the other took three white Izod shirts from the shelf and placed them in the bag being held open by the other black male. That he observed this almost immediately upon walking within close range of them. That the black males browsed around in the Trend Department and then went outside in the lower level mall where Detective Tipton stopped them. That he wrote a report regarding the incident.”

In one of the only two issues argued by appellant, he contends that the trial court “erred by refusing Appellant’s offer of a written report” made by witness Deborah Tipton. Appellant’s contention is based on what occurred during the cross-examination of Deborah Tipton. We quote from a pertinent part of the transcript as follows:

“Q. That your story today to this jury is subject No. 2 [Ernest Toles Robinson], which is him, who say is him (sic), and got the shirts and put them in the bag that subject No. 1 had, right?
“A. Yes, sir.
“Q. And subject No. 1, who was Willie Peak, left the store with the merchandise, and that’s who actually had the merchandise when you stopped him out there in the hallway, right?
“A. Yes, sir.
“MR. POLSON [Defendant’s attorney]: Judge, I want to have this ladies’ report marked for purpose of identification.
“THE COURT: Can we agree to a substituted copy?
“THE WITNESS: This is a Xerox copy.
“MR. POLSON: Judge, there is one page in it that I want to have — may I pull it apart?
“MR. ANTHONY [State’s attorney]: I think if we are going to introduce it we ought to introduce everything.
“MR. POLSON: I’m not going to introduce everything right now.
“MR. ANTHONY: We are not going to stipulate to anything.
“THE COURT: He isn’t asking you to stipulate to everything yet.
“MR. POLSON: Mark that, please, sir.
“(Defendant’s Exhibit 1 marked for identification.)
“THE COURT: How many pages are in the report?
“MR. ANTHONY: Four pages.
“MR. POLSON: No, there is five pages.
“Q. I want to show what has been marked as Defendant’s Exhibit 1 for identification.
“THE COURT: That’s page what?
“MR. POLSON: Judge, I don’t think it has any particular order. That was his second page in line when it was stapled together.”

It is not clear that anything else was said about “Defendant’s Exhibit 1” until after the State rested its case, when the following occurred:

“THE COURT: State rests. Ladies and gentlemen, that means that the evidence on behalf of the State is over. You will now hear from the Defendant. It is my understanding that — well, I am right in saying this, that the Defendant is going to offer some testimony with reference to the conversation that was had with Ms. Tipton. It is on tape. It was taped during the conversation -with Ms. Tipton. That’s what he’s going to play.
“(Tape played.)
“MR. POLSON: The Defendant Exhibit 1 that was identified, I want to offer that. I know the Court has already ruled as far as primary consideration, but I did want that introduced into the record. We would do so at this time.
“MR. ANTHONY: We object to it.
“THE COURT: Let me see that thing.
“The State objects?
“MR. ANTHONY: Yes, sir.
“THE COURT: Sustained.
“MR. POLSON: I wanted that to go into the record.
“THE COURT: It is.”

Appellant argues in his brief as to the issue under consideration “that the report was admissible to show the contradiction between the witness’ own report and her testimony at trial on direct examination.”

Defendant’s Exhibit 1 is not included in the record of the proceedings, and this fact alone forbids our holding that the trial court committed error in sustaining the objection of the State to defendant’s effort to introduce it in evidence. In addition, we should note that our attention is not called to anything definite in defendant’s Exhibit 1 that is in conflict with any of the testimony of Ms. Tipton. We are convinced that the ruling of the court did not constitute error prejudicial to defendant.

The only other issue argued by appellant is thus stated in his brief:

“The Trial Court Erred by Refusing to Allow into Evidence Testimony that Appellant Refused to Sign the Store Detective’s ‘Confession.’ ”

Appellee captions its argument in response to appellant’s contention as follows:

“APPELLANT’S OUT-OF-COURT, SELFSERVING DECLARATION IS INADMISSIBLE UNLESS SHOWN TO FALL WITHIN AN EXCEPTION TO THE HEARSAY RULE.”

Both parties refer approvingly to Gamble, McElroy’s Alabama Evidence, § 242.02 (1977), which states:

“Many Alabama appellate court opinions state that evidence of a party’s extrajudicial declarations offered by him is inadmissible as being a ‘self-serving declaration.’ Such statements, however, are misleading in that they seem to imply that there is some sort of special rule against the reception of ‘self-serving declarations.’ Such an implication is erroneous because there is no rule of evidence that can be properly or accurately described as a rule against self-serving declarations. If a self-serving declaration is inadmissible as tending to prove the truth of the matter asserted, the inadmissibility results from the hearsay rule. If a self-serving declaration falls within an exception to the hearsay rule, such as a party’s declaration of present pain offered as tending to show that he suffered pain or an accused’s declaration of an innocent purpose of his journey made while he is setting out upon the journey, the declaration is admissible under the exception regardless of its self-serving quality.
“The harm that comes from using the term ‘self-serving declaration’ is that it tends to cause one to lose sight of the fact that a so-called self-serving declaration may be admissible under an exception to the hearsay rule or simply because it is relevant irrespective to the truth or falsity of the declaration.”

The ruling of the trial court forming the basis for the issue between the parties occurred during the cross-examination by defendant’s counsel of the witness Deborah Tipton, as did the only other issue argued by appellant, and to some extent is related to the other issue, but we will endeavor to treat it separately from the other issue, as do the parties in their briefs, even though we have some difficulty in determining whether the document to which the issue now under consideration is referable is the same document referred to above as “defendant’s Exhibit 1.” We now quote that part of the transcript that is quoted in appellant’s brief that follows immediately that part of the cross-examination of the witness Deborah Tipton we have quoted in our discussion of the other issue argued by appellant:

“Q. Would you please look at that and identify that for the record, please, ma’am?
“A. Yes, sir. It’s the rights we read each suspect, with a waiver of rights where they sign if they like. Then we put the time, the date and the signature for the witnesses. Then we have a statement that we list the name, age, date, the location, the merchandise that has been placed in front of us here. Then we have them read it. If they want to sign it, they sign it. If they do not we mark it refused and we have a witness and they sign it.
“Q. This is a standard pre-printed written form and you probably have 50 or 100 of them waiting in your desk drawer for the thieves to sign, right?
“A. Suspects, yes, sir.
“Q. And what it says is — let me ask you this: Who’s handwriting is that?
“A. That’s mine.
“Q. Does it say,- T, Ernest Robinson, age 33, hereby state — ’ let me stop. Part of this is already printed. The small print, that’s what’s already there and then you come in and you fill in some blanks? “A. Yes, sir.
“Q. Does it say, ‘I, Ernest Robinson, age 33, hereby state that on the 24th of July, 1981, I stole from Rich’s Century Plaza, Jefferson County, Alabama, the following described property for which I did not pay nor intended to pay Rich’s: Three white Izod shirts, $24 each, total $72.’
“So what you’ve got here, you’ve got a pre-printed confession and all you’ve got to do is fill in the blanks, right, for these people to sign?
“A. Yes, sir.
“Q. And when you presented this to my client, to Mr. Robinson there, what did he say to you when you handed him his written confession?
“MR. ANTHONY: I’m going to object to being hearsay.
“THE COURT: I sustain it. Don’t answer.
“Q. All right. Let me ask you this: Did he refuse to sign this pre-printed written statement that you had prepared for him?
“MR. ANTHONY: We still object, Judge. It’s there to be offered into evidence.
“THE COURT: It’s inadmissible, ladies and gentlemen. What he just said is inadmissible in this case. I just instruct you to disregard it.
“MR. POLSON: Judge, we offer it for the record.
“THE COURT: Do you object?
“MR. ANTHONY: Yes.
“THE COURT: It’s out.”

It is to be noted from what we have quoted above from the transcript that, in making its objection to the offered evidence, State’s counsel did not use the expression “self-serving” or the like. This renders inapposite appellant’s discussion of “self-serving declarations” or the like. Furthermore, we note that as it appears that defendant was offering to show by the witness what defendant said to her when she “handed him his written confession,” and that the defendant refused “to sign this pre-printed written statement” that the witness had prepared for him, and that the proposed testimony was offered “as tending to prove the truth of the matter asserted” by defendant, the State’s objection to the offered testimony on the ground that it was hearsay was well taken, unless the proposed testimony falls within one of the exceptions to the hearsay rule. Gamble, McElroy’s Alabama Evidence, supra. We do not find, and appellant does not presently claim, that it constitutes an exception to the hearsay rule. His claim now is, as stated in his brief:

“Appellant submits that the testimony was not offered to prove or disprove the theft but to show that the statement was made.”

In support thereof, appellant cites Gamble, McElroy’s Alabama Evidence, supra, quoted above, and Bryant v. Moss, 295 Ala. 339,329 So.2d 538 (1976), in which 329 So.2d at page 541 Justice Jones states:

“... A statement made out of court is not hearsay if it is given in evidence for the purpose merely of proving that the statement was made, provided that purpose be otherwise relevant in the case at trial. 5 Wigmore, Evidence, § 1361; 6, Id., § 1770 Motors Ins. Corp. v. Lopez, 217 Ark. 203, 229 S.W.2d 228 (1950). ...”

Appellant does not endeavor to show us any relevancy whatever of the proposed testimony “that the statement was made,” and we think it was irrelevant.

We find no contention by appellant that the offered testimony as to what the defendant said was a part of the res gestae. Assuming that what defendant said was exculpatory, it nevertheless would have been inadmissible.

As stated in Shadle v. State, 280 Ala. 379, 384, 194 So.2d 538, 542 (1967):

“... The rule is that the acts, declarations, and demeanor of an accused, before or after an offense, whether a part of the res gestae or not, are admissible against him, but, unless a part of the res gestae, are not admissible for him. Maddox v. State, 159 Ala. 53, 48 So. 689; Roberts v. State, 258 Ala. 534, 63 So.2d 584; Willingham v. State, 261 Ala. 454, 74 So.2d 241.”

We have considered all issues raised on appeal and find no error prejudicial to defendant. The judgment of the trial court should be affirmed.

The foregoing opinion was prepared by Retired Circuit Judge LEIGH M. CLARK, serving as a judge of this Court under the provisions of § 6.10 of the Judicial Article (Constitutional Amendment No. 328); his opinion is hereby adopted as that of the Court.

AFFIRMED.

DeCARLO, P.J., and TYSON, HARRIS and BOWEN, JJ., concur.

ON REHEARING

LEIGH M. CLARK, Retired Circuit Judge.

On April 12,1983, appellant filed a timely application for rehearing and a short brief in support of the application. Four days before the receipt of the application for rehearing, the office of the Clerk of this Court received a notice from the Clerk of the Circuit Court that a “Motion to correct record was filed 11/9/82 and granted by Judge Cole on 11/19/82.” This information has influenced us, whether wisely or not, to withhold determination of the application for rehearing until the record was corrected as ordered by the trial court, which was accomplished by the filing in this Court of a supplemental transcript on June 30, 1983, which contains the court reporter’s transcript of an electronically taped detailed telephone conversation between appellant’s attorney and Ms. Debra Tipton, a witness for the State whose testimony is referred to in the opinion on original submission, which taped conversation was played to the jury on the trial, but had not been transcribed by the court reporter at the time of the original submission.

In his brief on application for rehearing, counsel for appellant states, inter alia:

“Appellant must respectfully submit that this Honorable Court has erred by failing to remand this matter to the trial court to correct the record by including a copy of Defendant’s Exhibit [Defendant’s Exhibit 1, to which the trial court sustained the State’s objection, which ruling was considered, as shown by the opinion, on original submission]. Has appellant or counsel failed in any way to present the issue in order to have a meaningful appellate review. Counsel for Appellant asks that the exhibit be included in the record so that this court might review the trial court’s refusal to allow it into evidence. “The court reporter has quite obviously neglected to include it in the record. Initially the reporter failed to transcribe the tape recording played before the jury which required a motion to correct the record.
“Does it now seem appropriate for this Honorable Court to order the trial court to include the exhibit so that appellate review may be completed.”

Counsel for an appellant, including an appellant in a criminal case, is not to be absolved of all responsibility in submitting a case on appeal without first having determined whether the record proper and the reporter’s transcript of the proceeding reflect all of the proceedings in the trial court that are necessary for a proper disposition in the appellate court of any and all issues raised by appellant. See Rule 10(f), as amended October 2, 1978, of the Alabama Rules of Appellate Procedure, as to which it was stated in Weaver v. State, Ala.Cr.App., 401 So.2d 344, 348 (1981):

“By its plain wording Rule 10(f) extends broad coverage and protection to the parties in having material omissions of ‘what occurred’ added to the record. Moreover, Rule 10(f) provides broad power in the appellate courts to direct that omissions be corrected and to determine ‘all other questions as to the form and content of the record.’ ”

See also, Pope v. State, Ala.Cr.App., 387 So.2d 300, 301 (1980), which states: “The defendant and his counsel have the duty of checking the record before submitting the appeal. It is their duty to file a correct record.” Notwithstanding the tardiness of appellant’s present request, we yield to his importunity, in the interest of justice, to remand this cause to the trial court with directions that it take such action that it can to assure that this Court will receive within a reasonable time a supplement to the record that contains the original or a copy of defendant’s Exhibit 1, to the offer of which in evidence the trial court sustained the State’s objection. The trial court shall make a return within due course to this order of remandment, with copies thereof to the parties. Each of the parties will then have fifteen days within which to file a brief on the particular point, and the opposing party will have fifteen days thereafter to file a reply brief.

APPLICATION FOR REHEARING GRANTED; JUDGMENT OF AFFIRMANCE SET ASIDE; OPINION EXTENDED.

REMANDED WITH DIRECTIONS.

All the Judges concur.

ON RETURN TO REMAND

LEIGH M. CLARK, Retired Circuit Judge.

On September 15, 1983, there was filed with the Clerk of this Court a photocopy of defendant’s Exhibit 1, to which references were made in our opinion on original submission and on rehearing. On September 29, 1983, appellant filed a brief and argument in which he continues to contend that the trial court was in error in sustaining the State’s objection to the admission in evidence of defendant’s Exhibit 1.

The brevity of defendant’s Exhibit 1 is encouragement to a recital herein of the exhibit in its entirety, but some of it is so indistinct as to discourage a reproduction thereof. We accept as correct what appellant contends is a conflict between what defendant’s witness Deborah Tipton stated in her report and what she stated to defendant’s attorney in a telephone conversation, which was tape recorded and which tape recordation was played to the jury, as found in appellant’s brief as follows:

“In the telephone conversation which was admitted into evidence, Ms. Tipton stated:
“ ‘MS. TIPTON: Let’s see, subject No. 1, your client, put the merchandise in the bag. (Emphasis added).
“ ‘MR. POLSON: RIGHT.
“‘MS. TIPTON: Concealed it. Subject No. 2 walked out the door with subject No. 1 at his side.’
“The report which the jury did not have benefit of during deliberation reflects that Appellant is referred to as subject # 2.”

Appellant further states in his brief:

“Ms. Tipton testified on cross-examination:
“ ‘Q. And you couldn’t possibly remember all the details unless you had this report?
“ ‘A. No, sir.
“‘Q. That your story today to this jury is subject No. 2, which is him, who you say is him, and got the shirts and put them in the bag that subject no. 1 had, right? (Emphasis added).
“‘A. Yes, sir.
“ ‘Q. And subject no. 1, who was Willie Peak, left the store with the merchandise, and that’s who actually had the merchandise when you stopped him out there in the hallway, right?
“ ‘A. Willie Peak was holding the sack when I stopped him, yeah.’
“The contradiction in who was subject # 1 and who was subject # 2 is readily apparent. The jury had the right to consider the report as impeachment evidence of prior inconsistent statement given by the witness. It was grievous and prejudicial error for the court to fail to admit the documents.”

Even assuming that there may have been some conflict between the testimony of Deborah Tipton and what she stated in the taped conversation between her and defendant’s attorney, which was played to the jury, we find no conflict between her testimony and anything that is to be found in defendant’s Exhibit 1, which was the basis of appellant’s argument, which was referred to and quoted from in our opinion on original submission, and which was summarized in appellant’s brief at that time as follows:

“Appellant submits that the report was admissible to show the contradiction between the witness’ own report and her testimony at trial on direct examination.”

The trial court was correct in sustaining-the objection of the State to the introduction in evidence of defendant’s Exhibit 1. Moreover, it is to be noted that defendant had the benefit of whatever conflict there may have been between what the witness testified and what she stated in her taped conversation with counsel for defendant, which was played to the jury, and there was no injury to defendant as a result of the court’s ruling as to defendant’s Exhibit 1.

The judgment of the trial court should be affirmed.

AFFIRMED.

All the Judges concur.