text:
    Paul Carney MARTIN v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY.
    83-957.
    Supreme Court of Alabama.
    Sept. 7, 1984.
    J.E. Sawyer, Jr., Enterprise, for appellant.
    Joe C. Cassady of Cassady, Fuller & Marsh, Enterprise, for appellee.
   BEATTY, Justice.

This is an appeal by Paul Carney Martin, plaintiff, from a directed verdict rendered in favor of the defendant, State Farm Mutual Automobile Insurance Company (Company). We reverse and remand.

On April 24, 1980, the Company issued a standard automobile insurance policy to plaintiff on a 1979 model Mercury automobile. The policy period as described therein was April 24, 1980, to December 17, 1980, and the premium for that period was specified as $394.14. A portion of this premium, $53.82, was paid by allowing plaintiff a credit from a previous policy, leaving a balance due of $340.32. A “BALANCE DUE NOTICE” stating that amount due was mailed to plaintiff on May 5, 1980, showing the due date of the balance to be June 17, 1980, and reciting: “Payment of the Balance Due by Due Date continues this policy to Dec-17-80.”

Apparently, because plaintiff was allowed a two-car discount, which entitled him to a class change with a reduced premium of $280.16 semi-annually, the Company sent plaintiff another “BALANCE DUE NOTICE” showing a new balance of $303.13 due on June 22, 1980. This notice also stated that “[p]ayment of the Balance Due by Due Date continues this policy to Dec-17-80,” and also advised plaintiff to “DISREGARD ANY PREVIOUS NOTICES YOU MAY HAVE RECEIVED ON THIS POLICY.”

Plaintiff’s policy was cancelled, but shortly thereafter plaintiff paid the Company $151.57, and he then received a “REINSTATEMENT NOTICE,” sent on July Uh 1980. This notice recited the amount paid, $151.57, and the balance due, $153.56, and stated: “YOU MAY DISREGARD THE NOTICE OF CANCELLATION PREVIOUSLY SENT TO YOU. YOUR POLICY HAS BEEN CONTINUED WITH NO LAPSE IN COVERAGE.” This was followed by a “BALANCE DUE NOTICE” sent by the Company to plaintiff which gave the balance of $153.56 due on August 16, 1980, based on the same semi-annual premium of $280.16 and the overall balance due of $303.13. This notice, however, contained the following statement: “50/50 PAYMENT PLAN. $2.00 SERVICE CHARGE DEDUCTED FROM PREVIOUS AMOUNT PAID.” That notice also stated that payment of the balance due by the due date, August 16, 1980, continued the policy to December 17, 1980. It is undisputed that plaintiff failed to pay the balance due ($153.56) by August 16, 1980.

On September 11, 1980, plaintiff was involved in an automobile accident and subsequently was sued by the driver of the other vehicle. When that case came to trial, it was settled without trial by the parties, with no judgment being rendered for either party. The Company was notified of the a'ccident but denied coverage and did not participate in plaintiffs defense or in the settlement.

This action was filed by plaintiff as an outgrowth of the Company’s refusal to defend him or to pay what plaintiff became obligated to pay when he himself settled the lawsuit brought by the third party. Plaintiff's complaint in this case contained three counts.

In Count I, plaintiff claimed a breach of contract by the Company in failing to defend him or to pay “the resulting judgment” in accord with its policy.

In Count II, plaintiff claimed that the Company was guilty of fraudulent misrepresentation, as follows:

“5. In, to-wit June, 1980, Defendant represented that the amount of monies necessary to pay his insurance premiums for insurance coverage between 6-17-80 and 12-17-80 was $303.13. In reliance thereon, Plaintiff paid on to wit, July 15, 1980, the sum of $151.57, representing the premium for one half the coverage period (i.e. to 9-17-80), which premium was accepted by defendant, as it had been in the past, leaving a balance of $151.56, plus an apparent service charge for paying on the installment plan of $2.00, to complete the payment and pay the policy to 12-17-80.”

Plaintiff then alleged the occurrence of the accident and his damage by the Company’s refusal to pay “a judgment of which he is legally liable.”

In Count III, plaintiff alleged that the Company was estopped to deny coverage as a consequence of its actions and misrepresentations.

The Company defended with a general denial.

The cause proceeded to a trial by jury. Following presentation of plaintiff’s evidence, the company moved for a directed verdict. This motion was granted. Plaintiff’s motion for a new trial was subsequently denied, and this appeal followed.

The issue presented is whether or not the trial court erred in directing a verdict for the Company at the close of the plaintiff’s case.

It is axiomatic that when a directed verdict is requested the entire evidence must be viewed in a light favorable to the opponent, and, if any reasonable inference adverse to the moving party may be drawn, the motion must be refused. City of Birmingham v. Wright, 379 So.2d 1264 (Ala.1980). It is only where the facts are such that reasonable men must draw the same conclusion from them that the question is considered as one of law for the court. Draughon v. General Finance Credit Corporation, 362 So.2d 880 (1978).

Central to the plaintiffs recovery was the requirement that he prove the existence of insurance covering his liability for the accident of September 11,1980. That issue concerns whether the Company mailed a notice of cancellation to the plaintiff before his accident on September 11, 1980.

Martin states that the Company notified him in May 1980 that the new balance necessary to keep his insurance in force to December 17 was $303.13. Martin paid and the Company received $151.57 of that amount in July, and he insists that this partial payment amount paid his coverage to September 17, 1980. Thus, he argues that he was covered when the accident occurred on September 11, 1980. Martin further testified that in the past he had “split the premium” several times (a payment device offered as a convenience to him), and that he himself knew that each time he got a balance due notice that it showed a $2.00 service charge.

We disagree with plaintiffs theory. Payment of one-half of the total premium did not “buy” coverage for one-half of the premium period. In other words, under the Company’s payment method an insured might not, unilaterally, convert a semi-annual payment schedule into a quarterly payment schedule at the semi-annual premium rate. Nor does it appear that the Company impliedly agree to this “conversion.” The Company merely allowed Martin to split the semi-annual premium into two successive payments at a service charge of $2.00. The second installment was due on August 16, 1980, and it was not paid by that date. Clearly, the Company could have cancelled Martin’s policy for his failure to pay the balance of the premium by the due date, which is consistent with the policy’s renewal condition. That condition, subject to an exception not material here, bound the Company

"... to renew the policy for the next policy period at the rates then in effect unless we mail to you written notice of our intention not to renew. The notice will be mailed to your last known address at least 30 days before the end of the current policy period. The mailing of it shall be sufficient proof of notice.
“These agreements to continue and renew are void:
“a. if you fail to pay the premium when due; ...”

Nevertheless, this policy further bound the Company to give the insured written notice of cancellation:

“How and When We May Cancel. We may cancel your policy by written notice, mailed to your last known address. The notice shall give the date cancellation is effective. The mailing of it shall be sufficient proof of notice.
“After the policy has been in force for more than 59 days, any notice of cancellation will be mailed to you at least:
“a. 10 days before the cancellation effective date if the cancellation is because you did not pay the premium.
“... If we cancel, premium will be earned on a pro-rata basis. Any unearned premium may be returned at the time we cancel or within a reasonable time thereafter. Delay in the return of unearned premium does not affect the cancellation.”

Indeed, the Company had cancelled before, but reinstated the policy on July 14, 1980, after Martin had paid the $151.57 payment. The reinstatement notice instructed Martin to disregard the notice of cancellation previously sent to him.

On direction examination, Martin testified that he had not received any notice of cancellation:

“Q. Did you receive anything else, Paul?
“A. No, sir. Not after that.
“Q. You know that they said that they sent you a cancellation notice, don’t you?
“A. Yes, sir.
“Q. Did you receive the cancellation notice?
“A. No, sir.
“Q. Did anybody that you know of receive a cancellation notice?
“A. Not to my knowledge.
“Q. Did the people at the bank receive a cancellation notice?
“A. I was informed that they hadn’t. That’s what I was informed.
“Q. That they what?
“A. Did not.
“Q. You were told — they didn’t come down and tell you that you’ve got to get your insurance up or anything, did they?
“A. No, sir.”

Apparently, at some point, Martin was told by the Company that it had mailed him a cancellation notice which stated that his policy would be cancelled effective September 9, 1980. Although counsel for the Company makes reference to this notice on his cross-examination of Martin, it was never offered into evidence because a directed verdict was granted for the defendant at the close of plaintiff’s case:

“Q. ... Now, had you ever received a cancellation notice before?
“A. Oh, yes.
“Q. So, you knew what a cancellation notice looked like?
“A. Uh-huh.
“Q. And you knew that if you didn’t pay the premium it would be cancelled, didn’t you?
“A. If I got one, yes.
“Q. Well, you knew it would be can-celled if you didn’t pay the premium whether you got a notice or not, didn’t you. You knew that. You knew that from the past that if you don’t pay the premiums you don’t have insurance?
“A. That’s right.
“Q. Now, that says it was due on the 16th.
“A. Yes, sir.
“Q. This notice was sent out on the 21st. That’s only five days after it was due, wasn’t it?
“A. Uh-huh.
“Q. They were letting you know quickly that you were past due and that if you didn’t pay it that on 12:01 a.m. on September 9, 1980, you would have no insurance? But you say you didn’t get this?
“A. That’s right.”

Since there was no proof of mailing of this notice in evidence at the close of plaintiff’s case, an issue remained as to whether the Company had mailed this notice of cancellation. The plaintiff denied ever receiving such notice, and, based on his prior dealings with the Company, as well as the cancellation provision requiring written notice, he was justified in believing his insurance remained in effect after his payment of $151.57, until the company notified him otherwise.

Viewing the plaintiff’s evidence most favorably to him, one may reasonably infer that the Company did not mail a cancellation notice to him. Martin claims to have relied on this failure to give notice, assuming his coverage was still in effect at the time of his accident on September 11, 1980. Absent -proof of mailing, plaintiff’s evidence proves a prima facie case of breach of contract, because of the policy provision requiring that the Company mail written notice of cancellation at least 10 days before the cancellation date. Further, plaintiff’s evidence tends to prove a prima facie case of estoppel. The Company had on a previous occasion sent plaintiff notice of cancellation and afforded him the opportunity to reinstate his policy after it had been cancelled for failure to pay the premium by the due date. Because of that previous course of dealing, plaintiff’s evidence tends to show that he relied to his detriment upon the absence of such notice.

Consequently, it was error for the trial court to grant a directed verdict at the close of plaintiff’s evidence. For that reason, the judgment must be reversed and the cause remanded for a new trial. It is so ordered.

REVERSED AND REMANDED.

MADDOX, JONES, ALMON and SHORES, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Benny R. McANNALLY v. LEVCO, INC., a Corporation.
    83-540.
    Supreme Court of Alabama.
    Sept. 14, 1984.
    David H. Culver, Huntsville, for appellant.
    George Royer, Jr., Huntsville, Barry Lea-veil, Montgomery and Clem Cartron, Huntsville, for appellee.
   PER CURIAM.

Appellant filed notice of appeal and posted bond in a case where trial judgment against appellant was in the amount of $11,434.75. The record on appeal was complete on March 29,1984. Appellant has not filed a brief. Appellee on May 2, 1984, moved for affirmance of the trial court judgment or dismissal of the appeal. Ap-pellee requests 10 percent damages under Code 1975, § 12-22-72, attorney’s fees for filing the motion ($267.90), and costs. Appellant has not filed a response to appel-lee’s motion.

Appellant’s obvious failure to prosecute this appeal leaves this Court no choice but to characterize the appeal as frivolous. Failure of appellant to file a brief within 28 days constitutes a ground for dismissal. A.R.A.P. Rule 31(c). Furthermore, this Court may assess “single or double costs” as well as “just damages” against an appellant who files a frivolous appeal. A.R.A.P. Rule 38. See Millican v. Cantrell, 378 So.2d 737 (Ala.1979). See also RMP, Inc. v. Arledge, 417 So.2d 158 (Ala.1982). We see no reason that attorney’s fees cannot be awarded as just damages under Rule 38. Compare Sckreiber v. Equico Lessors, 428 So.2d 69, 71 (Ala.Civ.App.1983) (attorney’s fees not awarded as part of costs under A.R.A.P. Rule 38). Attorney’s fees are probably the most likely damages from a frivolous appeal other than the loss of potential interest on the trial judgment; damages in the form of lost interest are provided for under A.R. A.P. Rule 37.

Appellee’s final request is for 10 percent damages under Code 1975, § 12-22-72. That statute provides:

“When a judgment or decree is entered or rendered for money, whether debt or damages, and the same has been stayed on appeal by the execution of bond, with surety, if the appellate court affirms the judgment of the court below, it must also enter judgment against all or any of the obligors on the bond for the amount of the affirmed judgment, 10 percent damages thereon and the costs of the appellate court; and, upon the appeal of any judgment or decree entered or rendered for any amount of commissions, fees or compensation fixed or determined by the trial court and taxed or allowed as costs, if the appellate court affirms the judgment or decree of the court below and the payment thereof has been stayed on such appeal, judgment shall be entered by the appellate court against all or any of the obligors on the bond for the amount affirmed, 10 percent damages thereon and the costs of the appellate court; provided, however, that if no su-persedeas bond has been executed on such appeal, the appellate court, in the event of affirmance, shall increase the amount so allowed as costs by the court below in the judgment or decree appealed from by adding thereto 10 percent damages thereon and the costs of the appellate court.”

Although appellant has not prosecuted the appeal, this Court has reviewed the record on appeal and affirms the trial court’s judgment. Because the conditions for an award under § 12-22-72 have been met, we hold that the 10 percent damages under § 12-22-72 should be assessed against appellant.

AFFIRMED; ATTORNEY’S FEES GRANTED TO APPELLEE IN THE AMOUNT OF $267.90; DOUBLE COSTS AWARDED TO APPELLEE; INTEREST AWARDED TO APPELLEE FROM THE DATE OF THE TRIAL JUDGMENT AS PROVIDED UNDER RULE 37; AND THE 10 PERCENT DAMAGES UNDER § 12-22-72 ASSESSED AGAINST APPELLANT AND HIS SURETIES.

TORBERT, C.J., and MADDOX, FAULKNER, JONES, ALMON, SHORES, •EMBRY, BEATTY and ADAMS, JJ., concur. .


text:
    Carl HALL a/k/a Lord Divine Allah v. Gregory P. THOMAS.
    83-578.
    Supreme Court of Alabama.
    Sept. 14, 1984.

      Carl Hall, pro se.
    W.J. McDaniel and William G. Gantt of McDaniel, Hall, Parsons, Conerly, Scott & Lusk, Birmingham, Walter R. Byars of Steiner, Crum & Baker, Montgomery, for appellee.
   PER CURIAM.

Carl Hall appeals pro se from a summary judgment in favor of appellee, Gregory Thomas. We affirm.

Hall sued Thomas, who was previously Hall’s attorney, for malpractice in connection with Thomas’s representation of Hall in a criminal case. Hall alleges that Thomas generally failed to adequately prepare and present a defense and that Thomas deprived Hall of a jury trial by telling Hall that he was not entitled to one.

Hall had been charged with escape under Code 1975, § 14-8-42. Hall was serving time for murder at the time of his escape. He was convicted in a nonjury trial on the escape charge and .sentenced to three months to be served “consecutively with” his prior sentence. After the trial court was informed of the mistake concerning Hall’s right to a jury trial, the court granted Hall a new trial before a jury, and appointed new counsel. Hall was convicted and given the same sentence as before. Hall then filed the present malpractice suit.

Thomas moved for dismissal of the suit or, in the alternative, for summary judgment. He filed affidavits and other documents showing that Hall suffered no damage as a result of what Thomas admitted was a mistake on his part in telling Hall he was not entitled to a jury trial. The trial court found as a matter of law that Hall had suffered no damage as a consequence of the alleged negligence of Thomas and granted summary judgment.

A claim for malpractice requires a showing that in the absence of the alleged negligence the outcome of the case would have been different. Mylar v. Wilkinson, 435 So.2d 1237 (Ala.1983). The documents filed in support of Thomas’s motion show without dispute that Thomas’s alleged negligence in no way damaged Hall. He was convicted and given the same sentence in the jury trial as he had previously received. Hall’s affidavit filed in opposition to the motion for summary judgment reiterates his claim that he was damaged but does not specify how. In his brief on appeal, Hall contends he was damaged because Thomas could have taken some steps to have the charges dismissed after the presentation of the state’s case because the state failed to prove Hall had previously been convicted and sentenced. Regardless of whether there is merit in Hall’s new contention, this new theory cannot be raised on appeal for the first time in an attempt to gain reversal of the summary judgment. Engel Mortgage Co. v. Triple K Lumber Co., 56 Ala. App. 337, 321 So.2d 679 (Ala.Civ.App.1975).

AFFIRMED.

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

      . We are unsure whether the trial judge actually meant the new sentence should run consecutively to or concurrently with Hall’s prior sentence.


author: HOLMES, Judge.

text:
    The CITY OF HUNTSVILLE v. Charles W. DAVIS.
    Civ. 3522.
    Court of Civil Appeals of Alabama.
    June 1, 1983.
    Rehearing Denied June 24, 1983.
    Roy Wesley Miller, Asst. City Atty. for the City of Huntsville, for appellant.
    R. Wayne Wolfe, Huntsville, for appel-lee.
   HOLMES, Judge.

The defendant city appeals a jury verdict assessing compensatory damages against the City of Huntsville at $5,000.

The plaintiff was arrested for disorderly conduct and booked at the Huntsville jail. The following day plaintiff had injuries to his eye and nose area which were photographed. Plaintiff attributed his injuries to his treatment by the jailer on duty that night.

Within six months of the incident, plaintiff filed suit against the jailer and the City of Huntsville.

Plaintiff's amended complaint included three counts, one against the defendant jailer for assault and battery, one against the City for the negligence of the jailer in the performance of his duties as an agent of the City, and the final count, against the City charging it with negligence in the hiring and supervising of its employee, the jailer.

A jury found in favor of the plaintiff and assessed compensatory damages against the jailer in the amount of $250, and assessed damages against the City at $5,000. Following the denial of a motion for a new trial, defendant City appeals, and we affirm. No challenge is made concerning the verdict against the jailer.

On appeal, defendant City through able counsel contends the failure of plaintiff to allege in his complaint that he complied with Ala.Code § 11-47-192 (1975) is fatal to plaintiffs action. Defendant City in brief contends it raised this issue via its motion to dismiss for failure of the plaintiff to state a claim upon which relief could be granted.

However, neither the motion to dismiss nor the amended motion to dismiss raises the issue of compliance with § 11-47-192, which provides that:

“No recovery shall be had against any city or town on a claim for personal injury received, unless a sworn statement be filed with the clerk by the party injured or his personal representative in case of his death stating substantially the manner in which the injury was received, the day and time and the place where the accident occurred and the damages claimed.”

We are aware of Browning v. City of Gadsden, 359 So.2d 361 (Ala.1978), cited to us by the City for the proposition that noncompliance with § 11-47-192 may be asserted by pre-answer motion. In Browning, however, this issue was “properly” raised in the motion. In the instant case there was nothing in the motion to dismiss which would apprise the trial court of the alleged noncompliance, and hence this issue was not “properly” raised by the motion to dismiss. The motion to dismiss of the City pertinently simply states as follows: “To dismiss the action because the complaint fails to state a claim ... upon which relief can be granted.” Matters outside pleadings should never be considered in deciding whether to grant a motion to dismiss for failure to state a claim. Hales v. First National Bank of Mobile, 380 So.2d 797 (Ala.1980).

Furthermore, we note that noncompliance with § 11-47-192 is a defense and in absence of raising of such defense, recovery against the municipality is not precluded. Fricke v. City of Guntersville, 257 Ala. 442, 59 So.2d 590 (1952). Nothing in the answer or any of the defendant’s pleadings properly raised noncompliance with the statute as a defense. It is therefore not an issue before this court as we will not consider issues raised for the first time on appeal. Lee Associates, Inc. v. Specialty Construction Co., Inc., 341 So.2d 150 (Ala.Civ.App.1976).

Even though we are not deciding on the merits of the § 11-47-192 issue, we feel compelled to point out what appears to be a conflict in the Alabama Supreme Court cases on the matter. On the one hand, we have a case citing to proper authority which holds: “If a suit on a claim against a city is commenced within the six-month period prescribed in [§ 11-47-23], it is a sufficient presentation of the claim under the statute.” Browning v. City of Gadsden, supra, at 364.

On the other hand, we have a case citing to proper authority which holds: “[T]he filing of suit within the six-month period following the incident made the basis of the action does not constitute a compliance with the notice provisions of the statute.” Eason v. City of Huntsville, 347 So.2d 1321 (Ala.1977). We are unable to discern any reason from the cases to explain this apparent conflict.

Defendant’s second contention on appeal is that the verdict as to damages was inconsistent and improper for two interrelated reasons. Defendant contends the damage award was improperly apportioned between the jailer and the City, which defendant characterizes as joint tort-feasors. Secondly, the City contends the jury cannot assess damages against a municipality greater than assessed against the agent/employee who committed the tort. Both of these contentions assume the existence of one tort resulting from the joint negligence of the City and the jailer. This is not the fact situation at hand. As made clear by the trial court’s pre-trial order and plaintiff’s final amended complaint, the City is charged with the commission of two torts— that is being “negligent in and about employing and supervising” the jailer and for the City’s liability for the negligence of the jailer committed in the performance of his duties as an agent or employee of the City.

Count three of the plaintiff’s complaint charging the City for its negligent ■supervision of the jailer sets out a tort claim which does not rest upon the action of the jailer. While defendant’s statement of law that damages may not be apportioned between joint tort-feasors is true, the City and the jailer are not joint tort-fea-sors as to count three. The term joint tort-feasor envisions the commission of one tort with the joint tort-feasors being jointly responsible for the one wrong. See Clabaugh v. Southern Wholesale Grocers Ass’n, 181 F. 706 (5th Cir.Ala.1910); Adler v. Pruitt, 169 Ala. 213, 53 So. 315 (1910). The tort encompassed in count three was committed by other unnamed agents/employees of the City in that the proper officials were negligent in the hiring, lack of training and lack of supervision of the jailer. Their tort, established by competent evidence at trial, goes beyond the actual assault of the plaintiff in that City officials had received other complaints concerning this jailer and had not acted. We see no reason why, where as here, defendants joined at trial who are not joint tort-feasors as to all claims may not be assessed different amounts of damages.

The second component of the defendant’s argument is that the jury cannot assess compensatory damages against the master in greater amount than assessed against the agent committing the tort. The fatal flaw in this contention is that the City was not sued solely for the actions of the agent/jailer. While true, as defendant points out, the City of Huntsville cannot act but through its agents, the individual unnamed agents responsible for the count three tort were those officials who hired the jailer, and neglected to train or supervise him. Where liability of the master may be rested on account of the negligence of employees other than the employee who was made a defendant, a verdict against the master, but exonerating the employee who was made a defendant, is not inconsistent. Atlantic Coast Line Railroad Co. v. Kines, 276 Ala. 253,160 So.2d 869 (1964). With that principle in mind, we find no error in the jury’s assessment of greater damages against the City than against the jailer because the liability of the City as to count three was based on the negligence of employees other than the jailer.

This case is due to be affirmed.

AFFIRMED.

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

      . A six-month statute of limitations is read into § 11-47-192 by § 11-47-23. Howell v. City of Dothan, 234 Ala. 158, 174 So. 624 (1937).


author: TORBERT, Chief Justice.

text:
    Ex parte The CITY OF HUNTSVILLE, A Municipal Corporation. (Re The CITY OF HUNTSVILLE v. Charles W. DAVIS).
    82-928.
    Supreme Court of Alabama.
    Jan. 20, 1984.
    Roy Wesley Miller, Asst. City Atty., Huntsville, for petitioner.
    R. Wayne Wolfe, Huntsville, for respondent.
   TORBERT, Chief Justice.

Charles W. Davis, respondent, arrested for disorderly conduct and booked in the Huntsville jail, suffered injuries to his eye and nose area. Respondent sued the jailer and petitioner, the City of Huntsville. Respondent’s amended complaint included three counts: one against the defendant jailer for assault and battery, one against the City for negligence of the jailer in the performance of his duties as an agent of the City, and a final count against the City charging it with negligence in the hiring and supervising of its employee, the jailer. A jury found in favor of respondent and assessed compensatory damages against the jailer in the amount of $250, and against the City in the amount of $5,000.

Two issues are raised by the petitioner. First, did the Court of Civil Appeals err by failing to observe the purported distinctions made by this Court between claims filed under Code 1975, § 11-47-23, and those filed under Code 1975, § 11-47-192, in that as to the former, suit itself is sufficient notice, and as to the latter, actual sworn notice to the city must be alleged in the complaint? Second, was the trial judgment flawed because the jury assessed greater compensatory damages against the City than against the jailer?

The first issue was not preserved for review. Non-compliance with § 11-47-192 is a defense, and if it is not raised, recovery is not barred. Fricke v. City of Guntersville, 257 Ala. 442, 59 So.2d 590 (1952). Petitioner contends it raised the issue in its motion to dismiss for failure to state a claim; however, petitioner’s motion to dismiss does not even hint at the alleged non-compliance with § 11-47-192. In Browning v. City of Gadsden, 359 So.2d 361 (Ala.1978), we held that this defense could properly be raised in a pre-answer motion. In Browning, however, the motion specifically raised the defense; in this ease, the City of Huntsville’s motion did not make a specific reference to the plaintiff’s non-compliance with § 11-47-192. The mere filing of a Rule 12(b)(6), A.R. Civ.P., motion without specific reasons does not preserve all possible defenses for appeal purposes. Because this issue was not properly raised, we are not required to consider the alleged conflict in the statutes.

Despite our determination that it is not necessary to resolve the first issue on the merits, we wish to clear up any ambiguity. The Court of Civil Appeals pointed out in its opinion the following:

“[W]e feel compelled to point out what appears to be a conflict in the Alabama Supreme Court cases on the matter. On the one hand, we have a case citing to proper authority which holds: ‘If a suit on a claim against a city is commenced within the six-month period prescribed in [§ 11-47-23], it is a sufficient presentation of the claim under the statute.’ Browning v. City of Gadsden, supra, at 364.
“On the other hand, we have a case citing proper authority which holds: ‘[T]he filing of suit within the six-month period following the incident made the basis of the action does not constitute a compliance with the notice provisions of the statute.’ Eason v. City of Huntsville, 347 So.2d 1321 (Ala.1977). We are unable to discern any reason from the cases to explain this apparent conflict.”

Section 11-47-23 governs tort claims against municipalities and requires that the claim be filed within six months of accrual. In Browning, we held that the filing of a suit within the six-month period was sufficient presentment under § 11-47-23. 359 So.2d at 364. Section 11-47-192, governing personal injury claims against municipalities, a subset of torts, requires a substantial statement of “the manner in which the injury was received, the day and time and the place where the accident occurred and the damages claimed.” In Eason v. City of Huntsville, 347 So.2d 1321 (Ala.1977), we held that the mere filing of a lawsuit does not necessarily “comply with the requirements of this statutory provision.” The complaint filed in Eason failed to satisfy the substantial notice requirements of § 11-47-192. However, if a sworn complaint filed within six months does provide the information required under § 11-47-192, then the suit itself satisfies the notice requirements of both § 11— 47-23 and § 11-47-192.

The second issue is meritorious. Count three charges the City with negligence in hiring and supervising the jailer. In a technical sense, the City and the jailer are not joint tortfeasors with regard to count three, because only the City acted negligently in hiring and supervising. This legalistic distinction is unavailing. When one unapportionable result flows from two arguably distinct causes, the jury is not permitted to allocate the damages. See City of Tuscaloosa v. Fair, 232 Ala. 129, 135, 167 So. 276, 280 (1936). See generally Kershaw Mining Co. v. Lankford, 213 Ala. 630, 631, 105 So. 896, 897 (1925). This is true regardless of whether the tortfeasors act independently or in concert. See Butler v. Olshan, 280 Ala. 181, 192, 191 So.2d 7, 17 (1966). Professor Prosser explains:

“Certain results, by their very nature, are obviously incapable of any logical, reasonable, or practical division. Death is such a result, and so is a broken leg or any single wound, the destruction of a house by fire, or the sinking of a barge. No ingenuity can suggest anything more than a purely arbitrary apportionment of such harm. Where two or more causes combine to produce such a single result, incapable of any logical division, each may be a substantial factor in bringing about the loss, and if so, each must be charged with all of it. Here again the typical case is that of two vehicles which collide and injure a third person. The duties which are owed to the plaintiff by the defendants are separate, and may not be identical in character or scope, but entire liability rests upon the obvious fact that each has contributed to the single result, and that no rational division can be made.
“Such entire liability is imposed ... where two or more of the causes are culpable.”

W. Prosser, The Law of Torts, § 52 at 315-16 (4th ed. 1971). Because this case involves one unapportionable set of injuries, the trial court erred in allowing the jury to attempt to apportion damages. On this ground, we reverse the judgment of the Court of Civil Appeals, which had affirmed the trial court judgment.

REVERSED AND REMANDED.

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


text:
    The CITY OF HUNTSVILLE v. Charles W. DAVIS.
    Civ. 3522.
    Court of Civil Appeals of Alabama.
    Feb. 15, 1984.
   HOLMES, Judge.

The prior opinion of this court, 456 So.2d 69, has been reversed and remanded by the Supreme Court. On remand to this court, and in compliance with the Supreme Court’s opinion, 456 So.2d 72, of January 20, 1984, this cause is now reversed and remanded.

REVERSED AND REMANDED.

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


author: WRIGHT, Presiding Judge.

text:
    Jack H. CARADINE v. DIRECTOR, DEPARTMENT OF INDUSTRIAL RELATIONS of the State of Alabama and Hux Box, Inc.
    Civ. 4098.
    Court of Civil Appeals of Alabama.
    July 18, 1984.
    Steven D. Caley of Legal Services Corp. of Alabama, Dothan, for appellant.
    George Cocoris, Gen. Counsel, and Frank D. Marsh, Asst. Gen. Counsel, State of Ala., Dept, of Indus. Relations, Montgomery, for appellees.
   WRIGHT, Presiding Judge.

This is an unemployment compensation case.

Jack H. Caradine (claimant) was terminated from his position as a machine operator with Hux Box, Inc. (employer), on September 9, 1979.

Claimant applied for unemployment compensation benefits. On or about April 9, 1980, employer was notified that claimant had applied for benefits. The notice also inquired as to the reason for claimant’s termination. Employer promptly dispatched another employee to hand deliver the requested information to the Ensley, Alabama, unemployment office on April 10, 1980. Employer testified that an appeal from an unfavorable determination of benefits was also indicated. Through a clerical mistake in the Ensley office, employer’s response was not forwarded to the Department of Industrial Relations (Department) in Montgomery. A determination of benefits to claimant was rendered. No notice was received by employer.

Between March 1980 and September 1980, claimant received $83.00 in weekly benefits for twenty-six weeks, totaling $2,158.00, and representing all of the regular benefits available under the Alabama Unemployment Act. § 25-4-74, Code of Alabama 1975.

In September 1980, employer received its quarterly unemployment compensation report indicating the names of former employees receiving unemployment compensation. Claimant’s name was included. Upon learning this, employer notified the Department that it was appealing claimant’s receipt of said benefits.

Claimant was informed of employer’s appeal in a letter of September 30, 1980, and on October 10, 1980, was notified of the October 15, 1980 date set for hearing before the appeals referee. Claimant was present at the hearing and presented testimony.

On or about November 3, 1980, claimant was informed that, pursuant to § 25-4-78(3)(b), Code of Alabama 1975, the appeals referee had disqualified him from receiving benefits for misconduct committed in connection with work. On November 10, 1980, claimant signed an acknowledgment that should he be ultimately determined disqualified to receive unemployment compensation benefits, he would be liable to repay all benefits received. That same day, he appealed the referee’s decision to the Department’s Board of Appeals (Board).

On January 15, 1981, the Board conducted its hearing on claimant’s appeal. On or about April 3, 1981, claimant was notified that the Board had affirmed the referee’s decision.

Claimant appealed to the Circuit Court of Coffee County. Trial de novo was held in the Circuit Court, and the court entered its judgment against claimant.

Claimant appeals, asserting that (1) the employer failed to timely appeal the claimant’s receipt of benefits and that the benefits were, therefore, final; (2) that regardless of whether the employer’s appeal was timely, the Department is estopped from recouping the benefits received by claimant; (3) that due process prevents re-coupment by the Department and; (4) that the trial court erred in failing to allow discovery. The trial court responded to the contention of claimant that employer’s appeal from the initial determination was not timely by finding that the letter delivered to the office in Ensley but undelivered to the Department’s office in Montgomery constituted an appeal. This case was heard ore tenus in the circuit court. The trial court’s findings therefore are presumed correct here. Gertz v. Allen, 376 So.2d 695 (Ala.1979).

We are unable to accept claimant’s contention that he was denied due process by the delay in hearing an appeal by the employer because he was permitted to draw compensation during that time, which he is now ordered to repay. We so hold because (1) a determination favorable to a claimant once made continues payments during appeals by the employer until final judgment. § 25 — 4—91(d)(1), Code 1975. That is the reason for the requirement of repayment upon final judgment of disqualification; (2) claimant, though prosecuting an appeal of a finding of disqualification for trial de novo to the circuit court, stipulated there that he was, in fact, disqualified from drawing compensation; and (3) claimant submitted the case to the circuit court stating that his appeal was only from the part of the Board of Appeal’s decision which required him to repay the overpayment.

As the judgment of the trial court points out, the trial was de novo; it was not a review of the administrative decisions which preceded it. It renders a new, distinct and independent judgment as may be required by the merits as presented at trial. Security Engineers, Inc. v. Department of Industrial Relations, 414 So.2d 975 (Ala.Civ.App.1982); State Department of Industrial Relations v. Page, 362 So.2d 263 (Ala.Civ.App.1978). There cannot be a piecemeal trial de novo. Having stipulated disqualification, claimant’s appeal must fall for failure to sustain his burden of proof. There was no lack of due process, nor is there available to one disqualified for compensation a claim of equitable estoppel against repayment of compensation wrongfully received. Ex parte Four Seasons, Ltd., 450 So.2d 110 (Ala.1984).

Having stipulated disqualification under the statute, the trial court correctly rendered final judgment against claimant for benefits received. § 25-4-91, Code 1975. Cargill v. State Department of Industrial Relations, 428 So.2d 62 (Ala.Civ.App.1982).

Because of failure to establish the threshold issue in the court below, we consider other issues presented here improper and moot. We pretermit discussion of them.

The issue of propriety of the rulings on petitions for writ of mandamus in circuit court and in this court is res judicata.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


author: BRADLEY, Judge.

text:
    Robert D. GARRETT and LaDonna A. Garrett v. KEY FORD, INC.
    Civ. 4251.
    Court of Civil Appeals of Alabama.
    July 25, 1984.

      W.E. Garrett, Atmore, for appellants. Charles R. Godwin, Atmore, for appellee.
   BRADLEY, Judge.

This is a misrepresentation case.

In January 1980 plaintiffs, Robert and LaDonna Garrett of Atmore, Alabama, purchased a 1978 Subaru pickup truck from defendant, Key Ford, Inc. of Pensacola, Florida. Plaintiffs were told by a salesman for defendant that the mileage on the truck, according to the odometer and the company’s records, was 34,000 miles.

In June 1980 and after plaintiffs had put only 2,500 miles on the truck, it “started losing power” and “smoking real bad.” Plaintiffs took the vehicle to a Subaru repair shop in Pensacola and were informed that the engine needed overhauling, at a cost of $930.32. Plaintiffs also learned that the truck had at least 82,000 miles on it.

On December 24, 1980 plaintiffs filed suit against defendant in the Circuit Court of Escambia County, Alabama, alleging false and reckless misrepresentation in the negotiations concerning the purchase of the automobile. Defendant moved to dismiss and/or quash service of process for lack of jurisdiction.

On February 23, 1981 the Circuit Court of Escambia County granted the motion and dismissed the case. Plaintiffs appealed to this court, which reversed and remanded the ruling of the circuit court. See Garrett v. Key Ford, Inc., 403 So.2d 923 (Ala.Civ.App.1981).

On October 31, 1983 a jury trial was held. After plaintiffs presented their case defendant moved for a directed verdict, which was granted by the court. Plaintiffs filed a motion for new trial, which the court denied. They appeal.

The dispositive issue on appeal is whether the trial court erred in granting defendant’s motion for directed verdict. We find no error and affirm.

It is well established in Alabama that a directed verdict is proper only where there is a complete absence of proof on a material issue or where there are no disputed questions of fact. Ritch v. Waldrop, 428 So.2d 1 (Ala.1982). If there is any conflict in the evidence for the jury to resolve, then the case must go to the jury and a directed verdict cannot be granted. Chandler v. Hunter, 340 So.2d 818 (Ala.Civ.App.1976).

An action for fraud will lie if a defendant has misrepresented a material fact either willfully, recklessly, or by mistake, if a plaintiff relies on the misrepresentation to his detriment and if the plaintiff was damaged as a result of his reliance. Burroughs Corp. v. Hall Affiliates, Inc., 423 So.2d 1348 (Ala.1982); Cecil Crews Chevrolet-Oldsmobile, Inc. v. Williams, 394 So.2d 912 (Ala.1981); § 6-5-101, Code 1975. Where a complaint is framed and tried on the first and second alternatives in section 6-5-101, that is, misrepresentations made willfully or recklessly, the case will not be reviewed on appeal as if the cause of action had been stated under the alternate provision of the section as to misrepresentation made by mistake. Sims v. Callahan, 269 Ala. 216, 112 So.2d 776 (1959).

In the instant case plaintiffs filed their complaint against defendant, stating:

“The representations made by defendant’s agent were false and that the pickup had 34,316 miles on it was false and the defendant knew or should have known that they were false or defendant without knowledge of the true facts recklessly misrepresented them with the intention that the plaintiff would rely upon them.” (Emphasis added.)

Thus, it appears that plaintiffs framed their cause of action under the first two alternatives in section 6-5-101, that is, misrepresentations made willfully to deceive or recklessly without knowledge and acted on by the opposite party.

Turning next to the evidence, it is without dispute that defendant’s agent represented to the plaintiffs that the truck had only 34,000 miles on it. It also appears from the evidence that in all likelihood the truck had been driven considerably more miles than the odometer reading of 34,000. However, there is no evidence that the salesman knew or had reason to know that the truck had more miles on it than was shown by the odometer. On the contrary, only after searching the chain of title on the vehicle was it discovered that the odometer had been tampered with. The truck had originally belonged to R.T. Tomas, who purchased it new in late 1977 or early 1978 from Five Flags Motors in Pensacola. Service records on the truck indicated that as of August 31, 1979 the odometer reading was 82,093. Apparently, Tomas traded in the truck or sold it to Bob Salter Chevrolet, who in turn sold it to K.E. Renfroe. When Renfroe bought the vehicle, the odometer statement listed the mileage as 30,723. Renfroe then either sold or traded the truck to defendant, Key Ford, Inc. At that time the odometer reading was 33,040. When defendant sold the truck to plaintiffs, the represented mileage was about 34,000.

After a careful review of the evidence, we are convinced, as was the trial court, that there was no evidence that defendant acted willfully or recklessly in representing that the mileage on the automobile was 34,000.

In brief plaintiffs now seek to have this case reviewed and treated as if the cause of action had been stated under the alternative provision of section 6-5-101, that is, the misrepresentation was innocent and based on mistake. However, the complaint was framed and the case was tried on the first two alternatives of section 6-5-101: “Misrepresentations of a material fact made willfully to deceive, or recklessly without knowledge.” (Emphasis added.) The contentions in the instant case should be considered in the light of the allegations of the complaint. Sims v. Callahan, supra. Accordingly, we will review the case on the same basis on which it was tried, see Shoemaker v. Money, 409 So.2d 847 (Ala.Civ.App.1981); Briggs v. Woodfin, 388 So.2d 1221 (Ala.Civ.App.1980), i.e. misrepresentations made willfully or recklessly.

Since there was a complete absence in the record of any proof that defendant made the statement willfully or recklessly, the trial court’s granting of a directed verdict was proper and its judgment is affirmed.

AFFIRMED.

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


text:
    The PERSONNEL BOARD OF the STATE of Alabama and the Department of Mental Health of the State of Alabama v. Lujean KING.
    Civ. 4271.
    Court of Civil Appeals of Alabama.
    July 25, 1984.
    Rehearing Denied Aug. 22, 1984.
    G.R. Trawick, Asst. Atty. Gen., for appellant.
    Joe R. Whatley, Jr. and John C. Falken-berry of Stewart, Falkenberry & Whatley, Birmingham, for appellee.
   HOLMES, Judge.

This is an employee termination case.

Lujean King was terminated from his employment with the Alabama Department of Mental Health and Mental Retardation (hereinafter Department of Mental Health). An incident occurred on June 5, 1983, whereby King allegedly abused a patient of the Taylor Hardin Secure Medical Facility. Taylor Hardin Secure Medical Facility is a facility for treatment of the mentally ill operated by the Department of Mental Health. King appealed his dismissal to the Personnel Board of the State of Alabama, where King and the Department of Mental Health agreed that evidence on the patient abuse charge would be presented before a hearing officer appointed by the Personnel Board.

A hearing was held before the hearing officer on July 13, 1983. By a report dated September 28, 1983, the hearing officer recommended .that King be reinstated and credited King’s testimony that he administered a karate-type kick to a patient’s abdomen in an effort to protect himself from what he perceived as a possible attack from the patient. After examining a verbatim transcript of the hearing and considering oral arguments, the Personnel Board, by order dated November 15, 1983, rejected the hearing officer’s findings of fact and recommendations, specifically found that King initiated the aggression toward the patient, and upheld King’s termination as warranted.

King, through able counsel, then filed a petition for a writ of certiorari or, in the alternative, notice of judicial review in the Circuit Court of Tuscaloosa County. On March 4, 1984, the learned and distinguished circuit judge held that the order of the Personnel Board was clearly erroneous in view of the “reliable, probative, and substantial evidence on the whole record, and [was] unreasonable, arbitrary or capricious or characterized by an abuse of discretion or a clearly unwarranted exercise of discretion in reversing the recommendation of the Hearing Officer.” From this order, the Department of Mental Health filed its notice of appeal to this court.

The dispositive issues on appeal are (1) whether there is legal evidence to support the Personnel Board’s affirmance of King’s termination and (2) since the hearing officer’s decision was based explicitly on the demeanor of witnesses whom the Personnel Board did not observe, what weight should be accorded to the hearing officer’s findings.

Section 36-26-27(a), Ala.Code (1975), part of the Merit System Act, §§ 36-26-1 through -47, Ala.Code (1975), provides the basis for Personnel Board reviews of employee terminations:

“An appointing authority may dismiss a classified employee whenever he considers the good of the service will be served thereby.... The board shall, if demand is made in writing by the dismissed employee within 10 days after notice of discharge, order a public hearing and, if the charges are proved unwarranted, order the reinstatement of the employee under such conditions as the board may determine.”

In Hilyer v. Blackwell, 377 So.2d 1090, 1091 (Ala.Civ.App.), cert. denied, 377 So.2d 1092 (Ala.1979), this court in construing section 36-26-27(a) held that “the legislature intended that dismissal by the appointing authority for the good of the service be reviewed by the Personnel Board only to determine if the reasons stated for the dismissal are sustained by the evidence presented at the hearing.”

Section 36-26-9, Ala.Code (1975), authorizes the Personnel Board to promulgate rules and regulations to implement the provisions of the Merit System Act. It is pursuant to this authority that the Personnel Board promulgated rules 670-X-5-.07 and 670-X-18-.02, which provide for the appointment of a hearing officer to take testimony on the dismissal and to submit to the Personnel Board findings of fact and conclusions of law in the form of a proposed order. Under the above rules, on review of this proposed order, the Personnel Board may affirm, modify, alter, or set aside the hearing officer’s findings and/or recommendations.

We need not decide whether state court review of the Personnel Board’s action is governed by the Alabama Administrative Procedure Act (AAPA), §§ 41-22-1 through -27, Ala.Code (1982 Replacement Vol.), for the parties agree that, insofar as this case is concerned, the standard of review by the circuit court on certiorari is essentially the same as the standard of review set forth in the AAPA. Compare Stewart v. Hilyer, 376 So.2d 727 (Ala.Civ.App.1979), and Roberson v. Personnel Board, 390 So.2d 658 (Ala.Civ.App.1980), with § 41-22-20(k). Accordingly, our task is to determine whether there was any legal evidence before the Personnel Board to support its findings. In making such determination it is not within this court’s prerogative to pass upon the truthfulness of conflicting testimony or to substitute our judgment for that of the Board. Roberson v. Personnel Board, 390 So.2d 658, 659 (Ala.Civ.App.1980).

Before addressing the “any legal evidence” issue, we must address the issue of how much weight should be accorded the hearing officer's demeanor-based findings. While the Department of Mental Health would have us enunciate a standard under which the Personnel Board can freely set aside the findings of the hearing officer, King urges a standard which requires at least some degree of deference to the hearing officer’s findings when conflicting testimony and demeanor evidence are involved.

As we noted above, the provision for a hearing officer in the context of Personnel Board appeals is a result of the Personnel Board’s own rules and regulations formulated pursuant to section 36-26-9, Ala.Code (1975). Because the hearing officer is not a co-equal statutory authority, we are reluctant to afford his findings such great weight as to make him as powerful as, or more powerful than, the Board which appointed him and which has the statutory duty to hear the appeal. See 2 Am.Jur.2d Administrative Law §§ 438-39 (1962).

Of the authorities cited by the parties in their briefs, the case of National Labor Relations Board v. Interboro Contractors, Inc., 388 F.2d 495, 499 (2d Cir.1967), provides the most workable solution to the issue at hand. Reviewing a decision of the National Labor Relations Board, the Second Circuit used the following test:

“This court must accept the Board’s findings of fact if they are ‘supported by substantial evidence on the record considered as a whole.’ ... The trial examiner’s findings are part of the record, and the fact that those findings were rejected by the Board must be considered in determining whether the ‘substantial evidence’ test is met_ While this requires that some weight be given to the examiner’s findings, it does not mean that ‘an examiner’s findings on veracity must not be overruled without a very substantial preponderance of the evidence as recorded,’ ....
“Thus the Board may reject the examiner’s findings, even though they are not clearly erroneous, if the other evidence provides sufficient support for the Board’s decision. But it seems that the Board’s supporting evidence, in cases where it rejects the examiner’s findings, must be stronger than would be required in cases where the findings are accepted, since in the former cases the supporting evidence must be deemed substantial when measured against the examiner’s contrary findings as well as the opposing evidence.”

(Citations omitted.)

Grafting this standard for review of cases wherein the Board has rejected a hearing officer’s findings onto our “any legal evidence” standard for review of Personnel Board actions, and applying it to the record presented before this court, we must rule that the Personnel Board’s action is supported by the evidence, despite the Board’s rejection of the hearing officer’s finding of self-defense. Clyde Warren, a security officer at the Taylor Hardin Secure Medical Facility, testified that when he, King, and four other mental health employees entered patient Alfonzo Wheeler’s room to restrain him for transfer to another ward, King kicked Wheeler in the stomach area with such force that Wheeler fell back against his bed. Officer Warren testified that as a patient Wheeler had a reputation for being passive toward others and that he made no aggressive gestures toward King when King entered the room, but instead backed away from King.

Police Officer Trainee Jon Lloyd Imes gave similar testimony — that Wheeler took several steps backward when King entered the room, and that as King kicked at the patient, the patient fell backward.

Even a portion of King’s own testimony provides support for the Board’s rejection of the self-defense finding. When asked, “When you went in the room, did he attempt to hit you?”, King answered “No, Sir.” Consider also the following question and answer: “At the time you raised your leg at patient Wheeler, it is correct he was not attempting to strike you in any way; isn’t that correct?” “He wasn’t attempting to strike me, no.” At the very least, this evidence establishes that King used poor judgment in assaulting a patient without impending threat of aggression by the patient.

As we stated above, this appeal is from a judgment of the Circuit Court of Tuscaloosa County which set aside the Personnel Board’s order as an abuse of discretion, not supported by the evidence. Because a review of the evidence, including the hearing officer’s report, reveals support for the Personnel Board’s finding that the charges against King were warranted, we must reverse the circuit court’s judgment. The circuit court accorded too much weight to the hearing officer’s report and in so doing substituted its (the circuit court’s) judgment for that of the Personnel Board. This is impermissible under Roberson v. Personnel Board, 390 So.2d 658 (Ala.Civ. App.1980).

The circuit court erred in setting aside the Personnel Board order; accordingly, its judgment is due to be reversed.

REVERSED AND REMANDED.

WRIGHT, P.J., and BRADLEY, J„ concur.


text:
    Ex parte Terry David WILLIAMS. Re Delma Ann WILLIAMS v. Terry David WILLIAMS.
    Civ. 4277.
    Court of Civil Appeals of Alabama.
    Aug. 1, 1984.

      Bryant F. Williams, Jr. of Williams & Lanice, Ozark, for appellant.
    Charles L. Woods, Circuit Judge, Dale County, Ozark and Henry D. Binford of Nomberg & McCabe, Daleville, for appel-lee.
   WRIGHT, Presiding Judge.

This is a divorce contest.

Delma Ann Williams, wife, and Terry David Williams, husband, were married in Columbia, South Carolina, February 5, 1982, while husband was on military leave from his assignment in Germany. Wife was a life-long resident of Alabama until approximately two years prior to the marriage, when she went to South Carolina to be near her future husband, then stationed at Fort Jackson, South Carolina. Husband’s permanent residence is North Carolina.

Following the marriage of the parties, husband returned to his then duty station in Germany, and wife returned to her home, Ozark, Alabama. On December 22, 1983, wife filed for divorce in Dale County Circuit Court, seeking relief by personal judgment against husband for alimony, a division of property, assumption of debts and attorney fees. Husband was served by certified mail at his off-post address in Tacoma, Washington, on December 29, 1983, and at his duty assignment address at Fort Lewis, Washington on January 5, 1984. Husband by special appearance filed a motion to dismiss, asserting lack of jurisdiction of the subject matter and over the person of husband. Husband subsequently filed this petition for writ of mandamus with this court.

The issue husband raises by mandamus is whether the trial court has in personam jurisdiction over husband.

Rights sought to be enforced by a writ of mandamus must be clear and certain with no reasonable basis for controversy about the right to relief, as a writ will not issue where the right in question is doubtful. Ex parte Dorsey Trailers, Inc., 397 So.2d 98 (Ala.1981). Though husband’s motion to dismiss alleged both a lack of subject matter jurisdiction and personal jurisdiction, the trial court did not specify whether its denial was based on one or both of the grounds alleged. In his petition for mandamus the husband only raised one of the grounds. Even if the court determined it had no personal jurisdiction over husband, it could still proceed to entertain wife’s complaint based on in rem jurisdiction, if she met the jurisdictional residency requirements under § 30-2-5, Code of Alabama 1975. See Sachs v. Sachs, 278 Ala. 464, 179 So.2d 46 (1965).

The supporting affidavits submitted by both parties contain conflicting statements, both with regard to whether husband had sufficient minimum contacts with the State of Alabama to warrant in person-am jurisdiction [See, International Shoe Co. v. State of Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945); Ex parte Brislawn, 443 So.2d 32 (Ala.1983)], and with regard to whether wife had been a bona fide resident of Alabama for six months next before filing of her divorce complaint. That wife merely alleges such residency does not satisfy § 30-2-5 of the Code, Wright v. Wright, 200 Ala. 489, 76 So. 431 (1917); rather, residency is a mixed question of law and fact depending upon the bona fide intention of the party. Caheen v. Caheen, 233 Ala. 494, 172 So. 618 (1937).

Thus, in this case since there are conflicting affidavits regarding the existence of in rem and in personam jurisdiction, and husband has not shown in his petition a clear and uncontroverted right as a matter of law to the relief sought, his writ must be denied.

We note that after hearing the evidence the trial court may determine whether it has either in rem or in personam jurisdiction and dismiss all or part of the suit accordingly, which decision husband or wife may then challenge through the appropriate appeals procedure. Generally, a writ of mandamus will not be granted if the matter complained of can be raised on appeal. Ex -parte Furnace and Corrosive Services, Inc., 418 So.2d 891 (Ala.1982). A party may raise a challenge to jurisdiction at any point in a proceeding, even for the first time on appeal. Thus, husband is not left without adequate remedy, though his writ is denied.

WRIT DENIED.

BRADLEY and HOLMES, JJ., concur.


text:
    Joel W. BOYD v. Rosalind West BOYD.
    Civ. 4302.
    Court of Civil Appeals of Alabama.
    Aug. 22, 1984.
    Roger H. Bedford, Sr. of Bedford, Bed-ford & Rogers, Russellville, for appellant.
    J. Craig Fine of Fine & Associates, Rus-sellville, for appellee.
   BRADLEY, Judge.

This is a divorce case.

Joel W. Boyd and Rosalind West Boyd were married in 1975 and divorced in 1984. There were no children born of this marriage though Mrs. Boyd has two daughters by a previous marriage.

In its decree the trial court awarded the wife the home, household furnishings, a $500 certificate of deposit, her vehicle, and $2,400 alimony in gross. The husband received more than $29,000 in certificates of deposit, a boat and motor, ten acres of land in Mississippi, and his vehicle. These are virtually the same belongings the parties had prior to the marriage. In its divorce decree the trial court stated that its intent was to restore the parties to their respective positions prior to the marriage.

Mr. Boyd contends that the trial court abused its discretion in failing to consider Mr. Boyd’s contributions to the family home. The record does not uphold such an allegation.

Mrs. Boyd owned the house at issue, about four years prior to the marriage, acquiring it as part of her 1972 divorce. There was a mortgage against the house. Mr. Boyd helped her make payments on it prior to the marriage. Upon their marriage Mr. Boyd moved into the house with Mrs. Boyd and her daughters. They soon moved out of town, renting out the house. Later they moved back into the house, but only after making extensive improvements on it. They borrowed $15,000 and used $8,000 to $9,000 insurance proceeds from a kitchen fire. They repaid the loan using proceeds from the sale of another house they owned, purchased with contributions from both the Boyds. Both worked during the entire duration of the marriage.

The divorce was granted based on physical cruelty and no-fault grounds. There was evidence presented to the trial court from which it could find that Mr. Boyd struck Mrs. Boyd and her two teenage daughters, once breaking one of Mrs. Boyd’s fingers such that she had not regained full use of it. Mr. Boyd struck Mrs. Boyd “on several occasions,” once causing her to miss work for three days due to marks on her face. The record does not reflect any fault on the part of Mrs. Boyd. The trial court can consider the relative fault and conduct of the parties in making a property division. Johnson v. Johnson, 446 So.2d 622 (Ala.Civ.App.1983); Miller v. Miller, 361 So.2d 577 (Ala.Civ.App.1978).

Property division is within the sound discretion of the trial court and need not be equal but it must be equitable. Johnson, supra; Wilson v. Wilson, 404 So.2d 76 (Ala.Civ.App.1981). The trial court’s division of property in this case is equitable and does not constitute an abuse of the discretion reposed in it.

AFFIRMED.

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


author: BOWEN, Judge.

text:
    Willie CLISBY, Jr. v. STATE.
    6 Div. 576.
    Court of Criminal Appeals of Alabama.
    March 2, 1982.
    Rehearing Denied April 20, 1982.

      Stephen R. Arnold of Durward & Arnold, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen.; and Ed Carnes and William Dudley Motlow, Asst. Attys. Gen., for appellee.
   BOWEN, Judge.

The defendant was indicted and convicted for the capital offense of nighttime burglary during the course of which the victim is intentionally killed. Alabama Code 1975, Section 13-ll-2(a)(4). Sentence was fixed at death.

I

This is the first case before this Court to challenge the constitutionality of the death penalty as construed by the Supreme Court of Alabama in Beck v. State, 396 So.2d 645 (1981), following the decision of the Supreme Court of the United States in Beck v. Alabama, 447 U.S. 625,100 S.Ct. 2382, 65 L.Ed.2d 392 (1980). The defendant argues that the procedural changes made by our Supreme Court in the method of sentencing one convicted of a capital offense from those specifically provided by statute constitutes an unconstitutional usurpation of legislative authority and violates the doctrine of separation of powers guaranteed by the constitutions of the United States and the State of Alabama.

This very issue was settled by our supreme court in Beck when it said: “Under the separation of powers doctrine, this Court cannot change the offense, but a change in procedure to comport with constitutional requirements is not impermissible.” Beck, 396 So.2d at 662.

This finding is binding upon this court. “The decisions of the supreme court shall govern the holdings and decisions of the courts of appeals.” Alabama Code 1975, Section 12-3-16.

Both the Florida and the Texas death penalty statutes survived attacks upon their constitutionality by virtue of judicial interpretation which allowed the consideration of any mitigating circumstance. Lockett v. Ohio, 438 U.S. 586, 606-7, 98 S.Ct. 2954, 2965-6, 57 L.Ed.2d 973 (1978). Also, the essential constitutional requirement of appellate review of sentencing was read into the Florida death penalty statute by the Florida Supreme Court even though no specific form of review was provided by statute. Proffitt v. Florida, 428 U.S. 242, 250, 96 S.Ct. 2960, 2966, 49 L.Ed.2d 913 (1976).

Further support for the constitutional validity of the Alabama Supreme Court’s curative judicial construction of our capital punishment scheme in Beck, supra, is found in Jackson v. State, 337 So.2d 1242 (Miss.1976). In Jackson, the Supreme Court of Mississippi exercised its “inherent power to prescribe rules of procedure” to reconstruct that state’s 1974 capital punishment statute to comport with decisions of the United States Supreme Court in 1976.

Despite the extensive “repair work” accomplished in Jackson, the federal courts have not held unconstitutional the action by the Supreme Court of Mississippi despite numerous opportunities to so do. At least one federal district court judge has held that the action of the Supreme Court of Mississippi was constitutionally permissible. Irving v. Hargett, 518 F.Supp. 1127 (N.D.Miss.1981). The Supreme Court of the United States has denied certiorari in three eases challenging the constitutionality of Mississippi’s death penalty statute as modified by the Supreme Court of Mississippi. Jordan v. Mississippi, 444 U.S. 885, 100 S.Ct. 175, 62 L.Ed.2d 114 (1979), declining to review Jordan v. State, 365 So.2d 1198 (Miss.1979); Irving v. Mississippi, 441 U.S. 913, 99 S.Ct. 2014, 60 L.Ed.2d 386 (1979), declining to review Irving v. State, 361 So.2d 1360 (Miss.1978); Bell v. Mississippi, 440 U.S. 950, 99 S.Ct. 1433, 59 L.Ed.2d 640 (1979), declining to review Bell v. State, 360 So.2d 1206 (Miss.1978). Consequently, we find that the action of the Alabama Supreme Court in Beck, supra, is a constitutional and legitimate exercise of judicial power.

We specifically note that the defendant acknowledges that “(t)he trial arid all proceedings were conducted in accordance with the rulings of the Alabama Supreme Court in Beck v. State, 396 So.2d 645 (1981).” Appellant’s Brief, p. 6.

II

We find no error in the admission of the defendant’s confession into evidence.

Even if the investigation had begun to focus on the defendant as he alleges, the evidence fully supports the view that the defendant was not a suspect until he, in being questioned by the police to clear up some discrepancies over his activities on the date of the homicide, “reached a point where he wanted to know what would happen to him if he told it.” When the officers indicated that they would need to talk to a district attorney in order to answer that question and told the defendant that they could not promise him anything, the defendant requested to talk to the district attorney. All the testimony indicates that the defendant was free to leave until he made that inquiry.

All questioning ceased when the defendant asked the officers what would happen to him if he did make a statement and did not resume until after the defendant had voluntarily and intelligently waived his rights.

It is custody and not investigative focus or suspicion which marks the point at which the warnings required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), become mandatory. Oregon v. Mathiason, 429 U.S. 492, 97 S.Ct. 711, 50 L.Ed.2d 714 (1977); Harris v. State, 376 So.2d 773, 774 (Ala.Cr.App.), cert, denied, 376 So.2d 778 (Ala.1979).

III

Each of the six veniremen who were excused for cause in this case was properly excused because each stated unequivocally that he could not vote for the death penalty under any circumstance or that his opposition to the death penalty would prevent him from impartially deciding guilt, or both. Full compliance was had with Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968); Keller v. State, 380 So.2d 926 (Ala.Cr.App.1979), cert, denied, 380 So.2d 938.

IV

The defendant raises several issues concerning the handling of various psychiatric matters by the trial court. He contends (A) that he was entitled to hire, at the expense of the state, a private psychiatrist to examine him for the purpose of expert testimony concerning certain mitigating circumstances; (B) that the use of the psychiatric report by the trial judge at the sentencing hearing violated his right to counsel; and (C) that his rights of confrontation and cross examination were violated by the trial court’s consideration of two letters concerning the psychiatrist’s conclusions about his mental condition.

Because of the nature of this case, the facts relevant to these issues are best set out in detail.

The murder occurred on November 7, 1979. The defendant was arrested on November 14, 1979, and a formal arrest warrant was issued the next day. On November 21, 1979, District Court Judge Jack Montgomery appointed attorney Jim Hard to represent the defendant.

On December 5, 1979, District Court Judge R.W. Gwin entered an order that the “Defendant is to be examined for psychiatric evaluation.” On December 7, 1979, pursuant to Judge Gwin’s order, the defendant was examined by Dr. Robert Estock. Dr. Estock was a private psychiatrist under contract with Jefferson County to evaluate prisoners where necessary. In a letter dated December 10, 1979, a social worker named Donna Click informed Judge Gwin of Dr. Estock’s conclusions. Ms. Click’s letter to Judge Gwin reads:

“On December 7, 1979, at the Jefferson County Jail the above named individual was evaluated by Doctor Robert Estock at your request. Doctor Estock feels this individual is competent to stand trial and aid in his defense. At this time there is no evidence of a psychosis. Should you have any questions, please do not hesitate to call me.”

On February 8, 1980, the defendant was indicted for the capital offense of nighttime burglary during the course of which the victim is intentionally killed. On February 22, 1980, Circuit Judge Wallace Gibson appointed attorney Stephen Arnold to represent the defendant in circuit court.

On February 29, 1980, the defendant was arraigned before Judge Gibson and pleaded not guilty. The record does not reflect entry of a plea of not guilty by reason of insanity. However, the record does show that at the defendant’s sentence hearing both the assistant district attorney and defense counsel thought that a plea of not guilty by reason of insanity had been entered. The assistant district attorney thought that such a plea had been entered and withdrawn after the defendant was examined, while the defense attorney did not recall it “ever absolutely being withdrawn.” On appeal, there is a strong argument made by the Attorney General that, even assuming that a plea was actually entered and had not been withdrawn, the plea of insanity was abandoned. Defense counsel made no mention of any insanity defense in his opening and closing arguments to the jury. At trial there was no evidence to support such a defense and the defense rested its case, without any defense, immediately after the State rested. Additionally, the defense did not request the court to instruct the jury on the issue of insanity.

On February 29, 1980, the day of arraignment, the defense filed a motion entitled “Defendant’s Motion for Psychiatric Examination”, which requested the court to empanel a lunacy commission pursuant to Code of Alabama 1975, Section 15-16-22. This motion was granted by Judge Gibson to the extent that he directed the Jefferson County Diagnostic Office “to have a psychiatrist evaluation on defendant’s mental condition.”

On or about March 10, 1980, the defense filed two more motions relating to the defendant’s mental state. The first was a “Motion for Court Appointed Psychiatrist”, which requested that the court appoint a psychiatrist “to conduct a clinical evaluation and examination of the defendant’s capacity for criminal responsibility.” The second was a “Motion for Funds for a Private Psychiatrist”, which requested that the court order the State or some subdivision of it to provide the defendant with funds to hire a psychiatrist “to conduct a clinical evaluation of the defendant’s capacity for criminal responsibility in order to enable him to have an adequate defense, due process of law and a fair trial.”

On March 11, 1980, the parties appeared for a hearing on those two motions. Judge Gibson asked defense counsel why the March 10, 1980, motion for examination by a private psychiatrist was necessary in view of the order the court had entered on February 29, 1980, in response to the first motion — the one to empanel a lunacy commission. Attorney Arnold responded that the February 29, 1980, motion (“the first motion”) was to have the defendant evaluated at Bryce Hospital whereas the March 10, 1980, motion (“the second motion”) was to have the court appoint a private psychiatrist “to examine him independent of anyone in the State hospital system.”

Judge Gibson explained that in granting the first motion on February 29, 1980, he intended to have the defendant examined by a psychiatrist who was under contract with Jefferson County to perform such examinations. The purpose of that examination and evaluation would be to determine if there were sufficient grounds to send the defendant to Bryce Hospital for further psychiatric evaluation. The report from the private psychiatrist under contract with the county was to be back by March 21, 1980, and the court would determine at that time whether to send the defendant on to Bryce Hospital.

Given that explanation, defense attorney Arnold said, “That is fine.” He explained that the purpose of his first motion (the one filed on February 29, 1980) was “to get the procedure going”, which the court had done. Attorney Arnold explained that he had no problem with what had been done in regard to that first motion, because he understood that it was the procedure to first determine if cause exists to send an accused to Bryce: “So, I have no quarrel at all.” Judge Gibson and attorney Arnold agreed that no action was required on the March 10, 1979, motion (“the second motion”) seeking examination by a court-appointed psychiatrist, because that had already been ordered in response to the first motion (the one filed on February 29, 1980).

The court then considered defense counsel Arnold’s third psychiatric motion — the March 10, 1980, motion requesting funds to hire a private psychiatrist to examine and evaluate the defendant. Judge Gibson stated that the psychiatrist who would examine the defendant pursuant to the court’s February 29, 1980, order was a private psychiatrist, albeit one on contract to Jefferson County to perform such examinations. Attorney Arnold replied that this motion should be considered in conjunction with his motion for a court-appointed psychiatrist, and he asked that a ruling on this motion be made after the psychiatrist on contract with the county had made his evaluation, because “it is the thrust of this, really, for a second opinion.”

Judge Gibson questioned whether he had any authority to order funds paid to the defendant to hire a psychiatrist of his own choosing, and finally decided that, “I will just hold this in abeyance, then, and then I will leave it to you, if you think it is necessary, to call it to my attention at some future time.” This motion was never mentioned again until after the jury had returned its sentence verdict fixing the defendant’s punishment at death, when the defense brought it up on the day of the sentence hearing before the judge.

Thereafter, on March 18, 1980, social worker Donna Click wrote Judge Gibson a letter reporting to him that the defendant “was evaluated by Dr. Robert Estock at your request.”

“Dr. Estock feels this individual is competent to stand trial, and aid in his defense. He displayed no evidence of psychosis and does not meet the criteria for involuntary commitment to Bryce Hospital. Should you have any questions concerning this evaluation, please do not hesitate to call us.”

The trial was conducted before Circuit Judge Joseph J. Jasper on February 23, 1981, through February 25, 1981. No evidence of insanity or mental impairment was presented. The only witness called by the defense during the guilt stage was the defendant himself who testified on voir dire concerning the circumstances surrounding his confession. The defense rested its case without putting on any evidence.

On the 25th of February, 1981, the jury returned its verdict convicting the defendant of the capital offense. The sentence hearing before the jury was conducted that same day. No evidence was presented at the sentence hearing before the jury that the defendant had acted “under extreme duress” or that “(t)he capacity of the appellant to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was substantially impaired”, within the meaning of Code of Alabama 1975, Section 13-11-7(5) and (6), or that he had any type of mental problem. The defendant took the stand and testified in his own behalf at the sentence hearing before the jury, but none of his testimony indicated any type of mental impairment.

The jury returned its verdict fixing the defendant’s punishment at death that same day, February 25, 1981. Judge Jasper scheduled the Section 13-11-4 sentence hearing to be held before him for February 27, 1981.

When the matter was called as scheduled for the sentence hearing before Judge Jasper on February 27, 1981, defense attorney Arnold announced that the defense was not ready, and he moved for a continuance. His stated grounds were that Judge Gibson had deprived the defendant of the right to prove the mental capacity mitigating circumstances (Section 13-11-7(2) and (6)) by denying his motion for a court-appointed psychiatrist and his motion for funds to hire a private psychiatrist. The defense requested Judge Jasper to grant those two motions and continue the hearing until psychiatric evaluations could be done to show whether the mental status mitigating circumstances existed.

The State opposed the request for such a continuance and argued that the psychiatric examination or examinations already done on the defendant were sufficient to indicate that there was no basis for further examination.

Judge Jasper denied the request for a continuance. He ruled that Judge Gibson had properly denied the motion for funds to hire a psychiatrist in view of Harris v. State, 352 So.2d 460, 475 (Ala.Cr.App.1976), affirmed, 352 So.2d 479 (Ala.1977), and Nelson v. State, 405 So.2d 392 (Ala.Cr.App.1980), reversed on other grounds, 405 So.2d 401 (Ala.1981). Judge Jasper also ruled that the other matter was adequately covered by the psychiatric examinations and evaluations which had been performed by Dr. Estock at the request of Judge Gwin and Judge Gibson, and he read social worker Donna Click’s two letters concerning those examinations into the record. At no point did the defense object to the hearsay nature of the letters or request an opportunity to examine or cross examine Dr. Es-tock concerning his conclusions which were reported in those letters.

The defense offered no additional evidence on the issue of sentencing at this hearing before the trial judge, but it did have the defendant’s testimony at the sentence hearing before the jury incorporated into this hearing and considered by the judge. After a short recess, Judge Jasper entered findings of fact as required by Code of Alabama 1975, Section 13-11-4 and Beck v. State, 396 So.2d 645 (Ala.1980), and sentenced the defendant to death.

In his fact findings from the sentence hearing before the court, Judge Jasper expressly indicated that he had reviewed the December 10, 1979 and March 18, 1980 reports of Dr. Estock “that the defendant displayed no evidence of psychosis and that he is competent to stand trial and aid in his defense.” Judge Jasper found that no mitigating circumstances had been shown.

A

The defendant argues that he was denied due process of law by not being allowed to have an independent psychiatric examination at the expense of the State.

We have repeatedly held that an indigent defendant in a criminal case has no constitutional right to the aid of the State by the appointment of a psychiatrist or other expert for his exclusive benefit. Thigpen v. State, 372 So.2d 385, 386 (Ala.Cr.App.), cert. denied, 372 So.2d 387 (Ala.1979), cert. denied, 444 U.S. 1026, 100 S.Ct. 690, 62 L.Ed.2d 660 (1980), and cases cited therein. See also Harris, supra, and Nelson, supra. Despite this, we cannot ignore the fact that an indigent defendant may have the right, under one or another constitutional guarantee, to appointment by the State of an investigator or expert where such services are shown to be necessary for an adequate defense. Anno. 34 A.L. R.3d 1256 (1970). However, “(w)hatever may be the extent of an indigent’s right to an impartial psychiatric evaluation ... we are of the opinion, on authority, that there exists no constitutional right to the appointment of a private psychiatrist of the defendant’s own choosing at public expense.” Satterfield v. Zahradnick, 572 F.2d 443 (4th Cir.), cert. denied, 436 U.S. 920, 98 S.Ct. 2270, 56 L.Ed.2d 762 (1978).

Here, the defendant received, at his request, an examination by a court-appointed psychiatrist to determine whether a more extensive examination or empanelment of a lunacy commission pursuant to Alabama Code 1975, Section 15-16-22 was necessary. This psychiatrist found no evidence of psychosis and concluded that the defendant did not meet the criteria for involuntary commitment to the state mental hospital.

The defendant’s pretrial motions for psychiatric examinations did not request that he be examined for the specific purpose of ascertaining the existence of any mental or emotional capacity or disturbance that would operate as a mitigating circumstance. Only at the sentencing hearing required under Section 13-11-4, after the jury had already fixed the defendant’s punishment at death, did defense counsel request a continuance so that the defendant “could be evaluated by a psychiatrist by someone competent in the field to determine if Mr. Clisby suffers from such illness or delusions or derangement that would bring him within the mitigating circumstances as prescribed by the statute.”

Even recognizing that there can exist, under given circumstances, a constitutional right of an indigent to psychiatric assistance, we must also recognize that there should be some evidence, some indication, or some legitimate reason to believe in the existence of some mitigating factor before the defendant is allowed such a free and independent psychiatric examination.

In his brief on appeal, the Attorney General states the factors which the trial judge could have considered in evaluating the defendant’s request for further psychiatric assistance. In our opinion, these factors support the ruling of the trial judge denying the defendant’s request.

“First, appellant had been examined pri- or to trial by a court-appointed psychiatrist who had concluded that there was no evidence of mental disorder or disturbance. Second, no evidence of mental disorder or disturbance was presented at trial. Third, in spite of the fact that the sentence hearing before the jury was conducted for the purpose of inquiring into aggravating and mitigating circumstances, the defendant did not present any evidence to support the Sections 13-11-7(2) and (6) mitigating circumstances. Fourth, the confession which the defendant gave just seven days after the crime and the circumstances in which he gave that confession reflected a lucid, organized thought pattern. Fifth, appellant had taken the stand on voir dire at trial and on the punishment issue at the sentence hearing before the jury. Not only had appellant not testified as to any mental impairment, incapacity, or . disturbance at the time of the crime, but his testimony had once again revealed a lucid, organized thought pattern unaffected by any mental problem or disturbance. In sum, at the Section 13-11-4 hearing when appellant asked for a continuance for purposes of further psychiatric examination and evaluation, there was absolutely no evidence that the defendant had suffered from any mental disease or incapacity or that he had acted under the influence of extreme mental or emotional disturbance within the meaning of the statutory mitigating circumstances. Everything indicated to the contrary.”

There was no error in overruling the defendant’s motion for a continuance so that he could have a mental examination. Simply, there was nothing before the court to compel the trial judge to the conclusion that he should have entertained some doubt of the defendant’s mental capacity. Mack v. State, 375 So.2d 476, 489 (Ala.Cr.App.1978), affirmed, 375 So.2d 504 (Ala.1979), vacated and remanded on other grounds, 448 U.S. 903, 100 S.Ct. 3044, 65 L.Ed.2d 1134 (1980). “The legislature has not given a right to a defendant to receive a mental examination whenever he requests one.” Pace v. State, 284 Ala. 585, 587, 226 So.2d 645 (1969); Nelson, 405 So.2d at 394. Absent such a right, the trial court is the screening agent for such requests and should order a mental examination only when there is some legitimate doubt of the defendant’s mental condition.

Although the cases we have cited as authority deal with claims of insanity and incompetency to stand trial, the general principles they represent are applicable to a psychiatric examination for the purpose of obtaining expert testimony concerning any mitigating circumstance. Such an examination should not be ordered unless there is at least some evidence or indication that some mitigating circumstance might exist.

B

The defendant also argues that at the sentence hearing (Section 13-11-4) the trial judge violated his Sixth Amendment right to counsel by considering the conclusions of the court-appointed psychiatrist who had examined the defendant prior to trial. The defendant relies on Estelle v. Smith, 451 U.S. 454, 101 S.Ct. 1866, 68 L.Ed.2d 359 (1981) to support his argument that, since defense counsel was not notified in advance that the psychiatric evaluation would be used by the trial court in the sentencing hearing as evidence against the defendant, the defendant was denied his right to counsel.

In Estelle, the Supreme Court of the United States held that, where the State used the defendant’s statements to a psychiatrist who had been sua sponte appointed by the trial judge to determine the defendant’s competency to stand trial and the defendant had not been warned of his right to remain silent and that any statement he made could be used against him at his capital sentencing hearing, the defendant’s Fifth Amendment privilege was violated. In Estelle, the psychiatrist evaluation was ordered even though defense counsel had not put in issue the accused’s competency to stand trial or his sanity at the time of the offense. There the court was concerned with “whether a defendant’s Sixth Amendment right to the assistance of counsel is abridged when the defendant is not given prior opportunity to consult with counsel about his participation in the psychiatric examination.” 101 S.Ct. at 1877, n. 14.

There are at least three principal distinctions between Estelle and the present case. First, in this case, the results of the pretrial psychiatric examination were not used to establish any aggravating circumstance or any element the existence of which must be found before the imposition of the death penalty.

In Estelle, the results of the pretrial psychiatric examination were used by the State to establish the defendant’s “future dangerousness” — one of the three critical elements the jury had to find existed before the judge could impose the death penalty. Here the psychiatrist’s reports were simply referred to by the trial judge as a reason for denying the defendant’s motion for a continuance in order to seek further psychiatric evaluation.

The fact that the trial judge mentioned the psychiatrist’s conclusions in his sentence findings does not indicate that he used those conclusions to negate any mitigating circumstance. Since the defendant did not present any evidence of the existence of any mitigating circumstance, the mitigating circumstance of Sections 13 — 11— 7(2) and (6) could not have been found even if the psychiatrist’s conclusions had never been considered.

The second distinction between Estelle and the present case is that the pretrial psychiatric examination did not address any issue that defense counsel did not know in advance was going to be covered. Estelle, 101 S.Ct. at 1877. Here the interview with the psychiatrist can only be characterized as a routine competency examination restricted to ensuring that the defendant understood the charges against him and was capable in assisting in his defense. Here, the psychiatrist never went beyond simply reporting to the court on the issue of competency.

The third distinction between Estelle and the present case is that in Estelle the accused’s Sixth Amendment interests were implicated because the accused did not voluntarily consent to the pretrial psychiatric examination after being informed of his right to remain silent. In Estelle, the accused introduced no psychiatric evidence nor had he indicated that he might do so. 101 S.Ct. at 1874. Here, defense counsel, although the record does not reveal that he requested the initial examination, did request the second psychiatric examination. The conclusions of these two examinations are identical. Not only did defense counsel request a pretrial psychiatric examination in pretrial motions, but he even renewed his request in search of further examination before the Section 13-11-4 sentence hearing.

The facts of this ease are distinguishable from those in Estelle, and we find that the trial court’s reference at the sentence hearing to the conclusions of the pretrial psychiatric examination did not violate the defendant’s right to counsel.

C

Finally, the defendant contends that the trial court’s reference to the letters from a social worker concerning the psychiatrist’s conclusions about the defendant’s mental capacity denied the defendant his constitutional rights of confrontation and cross examination.

The State recognizes that the defendant had a right to confront and cross examine the psychiatrist upon request. These rights are guaranteed by the Sixth Amendment and by Alabama Code 1975, Section 13-11-3 which provides for the admission of any evidence deemed to have probative value, regardless of its admissibility under the exclusionary rules of evidence, “provided that the defendant is accorded a fair opportunity to rebut any hearsay statements.”

After carefully examining the record, we agree with the Attorney General’s position that the defendant’s rights were not violated because the defendant never asked to examine or cross examine the psychiatrist.

The State’s position is simply that appellant never asked to examine or cross examine the psychiatrist. Appellant did not attempt to subpoena the psychiatrist, nor did appellant request a continuance of the Section 13-11-4 hearing until the psychiatrist could be produced to testify in person. Instead, appellant elected to stake his position on the contention that the letters showed on their face that the psychiatrist’s conclusions were immaterial to the sentencing issues. After the trial judge had read the letters into the record, he asked if either party had anything further. Rather than asking to examine or cross examine the psychiatrist, counsel for appellant replied, “No, sir.”

Since appellant did not ask for an opportunity to confront and cross examine the psychiatrist, the trial court cannot be said to have denied appellant such an opportunity.

We have searched the record for error as required by law. Alabama Code 1975, Section 12-22-241. The judgment of the circuit court is affirmed.

AFFIRMED.

All the Judges concur.