author: HOLMES, Judge.

text:
    JEFFERSON COUNTY, Alabama v. Larry PITTS.
    Civ. 3992.
    Court of Civil Appeals of Alabama.
    March 28, 1984.

      Stanley A. Cash of Huie, Fernambueq & Stewart, Birmingham, for appellant.
    Stephen D. Heninger of Hare, Wynn, Ne-well & Newton, Birmingham, for appellee.
   HOLMES, Judge.

This is a workmen’s compensation case.

The employee (Pitts) sued the employer (Jefferson County) for workmen’s compensation benefits. Jefferson County claimed no benefits were due Pitts because of Pitts’s willful misconduct, a defense allowed employers under § 25-5-51, Ala. Code (1975). The issue of willful misconduct was tried before a jury pursuant to § 25-5-81, Ala.Code (1975). The jury found in favor of the employee on this issue, and thereafter, the trial court found Pitts had suffered a twelve percent loss of ability to earn.

Jefferson County, through able counsel, appeals and we affirm.

Jefferson County contends the trial court erred in certain evidentiary rulings and that the evidence does not support the findings of a twelve percent loss of ability to earn.

Viewing the evidence with the proper standard of review in mind, the pertinent facts surrounding the trial court’s actions as to the evidentiary rulings are as follows:

At the time of his injury, Pitts was employed by the Jefferson County Sheriff’s Department as a deputy sheriff. On July 16, 1980, while on patrol at night, Pitts and his partner, Feld, were involved in a single car accident that took Feld’s life and left Pitts with serious injuries. Pitts was driving the patrol car, a 1978 Ford LTD II, at the time of the accident. The accident occurred on an isolated, unilluminated road sometime after 9:00 P.M.

Pitts testified at trial that the accident occurred because the headlights and the power on the patrol car failed as the automobile entered a curve. According to Pitts, as they approached a curve in the road, he could see the headlights of an automobile coming from the opposite direction. In an attempt to dim his lights, Pitts pressed the dimmer switch and at that time the headlights on the patrol car went out completely. It seemed to Pitts that at the moment the headlights failed the engine stalled or died and the patrol car would not respond to the brakes and would not turn. The patrol ear left the road on the right-hand side and collided with a tree.

Jefferson County asserted certain defenses allowed an employer under § 25-5-51, Ala.Code (1975). Section 25-5-51 provides, inter alia, that compensation benefits will be denied employees for injuries brought about by their own intoxication, willful misconduct, or willful breach of a reasonable rule or regulation promulgated by the employer, in this case, a rule that prohibits being intoxicated on duty or while driving an automobile. Pursuant to § 25-5-81, Ala.Code (1975), the issue of intoxication and willful misconduct was tried before a jury.

Jefferson County presented evidence that the alcohol content in Pitts’s blood at the time of the accident was considerably higher than the level that would render the average person incapable of safely operating a motor vehicle. Jefferson County also presented evidence that several people smelled alcohol on Pitts after the accident.

Pitts offered evidence that tended to show that the blood test administered to him after the accident was tainted by the rubbing alcohol used in preparing him for an “I.V.” There was also evidence that both before and after the wreck several people, some medically knowledgeable, did not smell alcohol on or about Pitts.

There was also evidence introduced over objection by Jefferson County that other Jefferson County deputy sheriffs had experienced similar mechanical or electrical problems with other 1978 Ford LTD IIs used by the sheriff’s department. In addition, one woman not connected with the sheriff’s department testified that the headlights on her 1978 Ford LTD II had gone out on previous occasions.

On appeal, Jefferson County contends that it was erroneous for the trial court to allow the testimony of the deputy sheriffs and the one civilian pertaining to the problems they had experienced with 1978 Ford LTD IIs. Specifically, Jefferson County contends that Pitts did not show that these other incidents occurred under similar conditions, a showing that Jefferson County contends is necessary for the admission of such evidence.

The rule of law Jefferson County relies on has been stated thusly:

“To allow proof of an occurrence similar to that claimed to have caused an injury, substantially similar conditions must be shown, but it is not necessary that there be direct proof of the similarity.” M. C. West, Inc. v. Battaglia, 386 So.2d 443, 448 (Ala. Civ.App.), cert, denied, 386 So.2d 450 (Ala. 1980). This rule is further qualified by the condition that the “nearness of the occasions may afford a presumption that they were similar, or they may be shown similar by other circumstances.” M. C. West, Inc., at 448.

We believe that, under the present facts and keeping in mind this is a workmen’s compensation case, the similarity of conditions was shown by “other circumstances.” The incidents in question, with the exception of the civilian, all occurred with 1978 Ford LTD IIs purchased in a lot by Jefferson County; they occurred during the same, relatively short period of time, 1978-1980; they were all similarly equipped. Some of the evidence concerning other deputies’ experiences with the very same automobile that Pitts was driving at the time of the accident showed that the other occurrences were similar. There was testimony from the county equipment manager that the county received no more complaints of headlight failure on these automobiles after a certain, minor repair was done to the wiring of each one; he also testified that before making that repair he eliminated every other possible cause, such as bad fuses or defective light bulbs.

The woman who testified that she experienced headlight failure testified after the evidence concerning headlight failure on Jefferson County vehicles. She testified that her automobile was a 1978 Ford LTD II and that on at least two separate occasions the headlights went out while the automobile was being operated. The woman further testified that she and her boyfriend checked for loose wires, could find none, and that she had no explanation for the headlight failure. The fact that the car was the same make and model as the others and that the automobile was in motion at the time creates sufficient similarity of conditions to the point where any dissimilarity or lack of proof of similarity would seem to go to the weight of the evidence and not its admissibility.

Even if proof of “similarity” was lacking in the testimony of the woman, such testimony in this instance appears to be cumulative and therefore not reversible error. Rule 45, Alabama Rules of Appellate Procedure.

Even if, assuming arguendo, similarity of conditions in general was not present, we believe that the evidence was admissible nevertheless.

In most all of the cases and authorities relied on by Jefferson County, negligence was at issue. The other “occurrences” sought to be introduced were usually other accidents at the same location or involving the same thing. The other occurrences were offered to show either that a place or thing was dangerous or unsafe. The plaintiff sought to introduce the evidence of other occurrences to help meet the affirmative burden of proving negligence. Similarity of conditions in the occurrences was required in order to eliminate other factors that might be a possible cause of the occurrences other than the unsafe place or thing. See Davis v. Kornman, 141 Ala. 479, 37 So. 789 (1904); Supreme Lodge of the World, Loyal Order of the Moose v. Gustin, 202 Ala. 246, 80 So. 84 (1918); and C. Gamble, McElroy’s Alabama Evidence §§ 80.01 and 83.01 (3d ed. 1977) for a representative sampling of cases dealing with this subject.

In the case at bar, negligence was not at issue. Jefferson County was defending against a workmen’s compensation claim pursuant to § 25-5-51. Under § 25-5-36, Ala. Code (1975), the employer has the burden of proof to establish the willful misconduct or other misconduct of the injured employee. The testimony concerning other headlight failures was not offered to prove the cause of the accident or that the lights failed because there was negligence, but rather to “join issue” on the question of willful misconduct and intoxication and to refute Jefferson County’s evidence. In other words, Pitts had no affirmative burden of proof to meet as to the cause of the accident; Pitts was only refuting Jefferson County’s contention that his intoxication and willful misconduct caused his injuries. Pitts attempted to refute Jefferson County’s contention by not only his own testimony but with that of others.

We particularly note again that this is a workmen’s compensation case and compensation laws should be liberally construed in order to effectuate the beneficent purpose behind the act and to eliminate procedural technicalities. Sun Papers, Inc. v. Jerrell, 411 So.2d 790 (Ala.Civ.App.1981).

Jefferson County, again through able and effective counsel, contends that the trial court erred in that the evidence does not support a finding of a twelve percent loss of ability to earn. We do not agree.

The determination of the proper percentage of disability rests with the trial court. The trial judge has the opportunity to observe the courtroom demeanor of the employee and other witnesses. Dees v. Daleville Florist, 408 So.2d 155 (Ala.Civ.App.1981). In the present case there is sufficient evidence to support the trial court’s determination.

There was evidence that Pitts had sustained a partial hearing loss in his right ear since the accident. There was some evidence that Pitts could never again perform the duties required of a police officer as a result of the injuries he sustained in July 1980. There was evidence that from 1975 up until the time of the accident Pitts had worked only as a police officer. There was also evidence as to the jobs Pitts had worked since recovering sufficiently from his injuries. He had worked as a night club manager and, most recently to the time of trial, as a general maintenance man at a country club. There was evidence pertaining to Pitts’s educational background and training, which appeared to be consistent with the trial court’s action. We therefore conclude there was evidence from which the trial court could determine that Pitts had suffered a twelve percent loss of ability to earn as a result of his injuries, etc.

In view of the above, this case is due to be and is affirmed.

AFFIRMED.

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


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    CITY OF TUSCALOOSA, a Municipal Corporation, et al. v. Barbara Woodley MOUNTAIN.
    Civ. 4244.
    Court of Civil Appeals of Alabama.
    April 4, 1984.
    Robert W. Ennis, IV, City Atty., and Dena D. Byrd, Asst. City Atty., Tuscaloosa, for appellants.

      Herbert M. Newell, III, Tuscaloosa, for appellee.
   PER CURIAM.

This is a Section 1983 action involving attorney’s fees. See 42 U.S.C. § 1983 (1975).

The defendants, City of Tuscaloosa, et al., requested an attorney’s fee. This request was denied and the defendants appeal. We affirm.

The following appear to be the pertinent facts.

The City of Tuscaloosa obtained a federal grant to establish a Victim/Witness Assistance Program. The program created three new job positions. The program director established an applicant screening system to accept applications and review the qualifications of applicants. The positions were advertised, and the plaintiff applied. After some screening, a list of thirty-seven eligi-bles was established; the plaintiff ranked second on this list. The city subsequently chose two people from the list and the district attorney chose a third. The three persons hired were ranked first, sixth, and seventh on the list.

In her complaint the plaintiff alleged that she was not hired by the city solely because she was engaged to a Tuscaloosa attorney who did a considerable amount of criminal defense work and who was a political opponent of the police commissioner. She alleged that the police commissioner told the program director that the plaintiff should not and would not be hired for any of the positions.

The plaintiff alleged that the city’s failure to hire her was discriminatory, that it denied her “her legal and civil rights for fair and impartial consideration,” and that the city's action was violative of the first amendment and of due process and equal protection guarantees found in both the federal and state constitutions.

The defendants filed a motion for summary judgment. The trial court granted a partial summary judgment, finding “no merit” in the plaintiff’s due process and equal protection contentions. The plaintiff’s additional contention, regarding the defendant-city’s alleged violation of her freedom of association rights, was not resolved by summary judgment. (Put another way, the plaintiff alleged three theories of recovery; two of the three theories were resolved by the trial court’s action granting partial summary judgment, and one theory remains pending in the circuit court.)

The trial court’s action granting partial summary judgment was appealed via Rule 54(b), Alabama Rules of Civil Procedure, to the Supreme Court of Alabama. The supreme court affirmed in Mountain v. Collins, 430 So.2d 430 (1983). Interested parties should refer to Mountain v. Collins for a more detailed account of what previously transpired, paying particular attention to the supreme court’s statement that there is still pending in the trial court a claim by the plaintiff.

After the supreme court’s affirmance, the defendants sought an attorney’s fee for work done prior to the partial summary judgment. This request for attorney’s fees was made even though there remained pending the plaintiff’s aforesaid claim.

The trial court denied the request for attorney’s fees and, as indicated, the defendants appeal.

The dispositive issue, which also comes to this court via Rule 54(b), A.R.C.P., is whether the trial court abused its discretion in denying the defendants’ request for what can be said to be pendente lite attorney’s fee. In view of what this court considers to be the dispositive issue, other issues raised need not be addressed.

Section 1988 of Title 42, United States Code, allows a trial judge, in his discretion, to award attorney fees to “the prevailing party,” in a suit brought under Section 1983. There is no question that a defendant can qualify as “the prevailing party,” see Hughes v. Rowe, 449 U.S. 5,101 S.Ct. 173, 66 L.Ed.2d 163 (1980); however, the standard applied to a prevailing defendant is somewhat different from that applied to a prevailing plaintiff. While a sue-

cessful plaintiff ordinarily recovers his attorney fees in all but special circumstances, a successful defendant recovers his attorney fees only if the trial court finds that the plaintiff’s suit was frivolous, unreasonable, or without foundation. Id. See generally Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 98 S.Ct. 694, 54 L.Ed.2d 648 (1978).

In Hanrahan v. Hampton, 446 U.S. 754, 100 S.Ct. 1987, 64 L.Ed.2d 670 (1980), the U.S. Supreme Court approved of the award of pendente lite attorney fees, saying

“It is evident also that Congress contemplated the award of fees pendente lite in some cases.... But it seems clearly to have been the intent of Congress to permit such an interlocutory award only to a party who has established his entitlement to some relief on the merits of his claims, either in the trial court or on appeal.... [T]he award of counsel fees pendente lite would be ‘especially appropriate where a party has prevailed on an important matter in the course of litigation, even when he ultimately does not prevail on all issues.’ ”

Id. at 757, 100 S.Ct. at 1989 (citations omitted) (emphasis in original).

The trial court rejected the defendants' request for pendente lite attorney fees in connection with the dismissed equal protection and due process claims. We find no abuse of discretion in that action. It appears the trial court’s intent was to deny a pendente lite request and defer a decision on attorney fees until further litigation is had and a final judgment on all claims is entered. As indicated, we affirm on this ground so as not to foreclose a decision by the court to fashion an award for defendants, if appropriate, at some later date.

In the present suit, although the plaintiff’s amended complaint presents alternative theories of recovery, the plaintiff seeks relief for only one injury — the city’s refusal to hire her for its Victim/Witness Assistance Program. Because the plaintiff’s claims involve a common core of facts and are based on related legal theories, it is

very likely that if the trial court had decided to award the defendants a fee, it would have had difficulty separating the amount of counsel’s time spent on the dismissed claims from that spent on the claims surviving defendants’ summary judgment motion. In such a case, it seems very logical to deny a pendente lite fee request to avoid difficult calculation problems. Cf. Hensley v. Eckerhart, — U.S. -, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983) (difficulty of calculating award for plaintiff on a claim-by-claim basis if claims related). It seems that the most common reason for awarding pendente lite fees is to boost the sagging resources of an already successful plaintiff when the cost of protracted constitution litigation takes a toll on the plaintiff’s finances and hinders his ability to follow the claim to its conclusion. See e.g., Bradley v. School Board of Richmond, 416 U.S. 696, 723, 94 S.Ct. 2006, 2022, 40 L.Ed.2d 476 (1974). Such rationale not being applicable to the instant case, we, as indicated, find no abuse of discretion in the trial court’s action.

This case is due to be affirmed.

AFFIRMED.

All the Judges concur.


author: TYSON, Judge.

text:
    Lee Morris WILLIAMS, alias v. STATE of Alabama.
    2 Div. 389.
    Court of Criminal Appeals of Alabama.
    March 20, 1984.
    Rehearing Denied April 24, 1984.

      J. Patrick Cheshire, Selma, for appellant.
    Charles A. Graddick, Atty. Gen., and James E. Hasser, Jr., Asst. Atty. Gen., for appellee.
   TYSON, Judge.

Lee Morris Williams, alias “Gas Tank” was charged with sexually molesting the prosecutrix, who was under the age of 12 years, contrary to § 13A-6-66, Code of Alabama 1975. The jury found the appellant “guilty of sexual abuse in the first degree as charged” and the trial court, after a sentencing hearing, fixed punishment at 10 years’ imprisonment in the penitentiary.

Notice of appeal was given but an appeal was not perfected to this court. Thereafter, Williams filed a petition for writ of error coram nobis asserting, among other things, that he was not guilty and that his counsel had not adequately represented him by failing to “search for witnesses with knowledge of his character”, failing to find “exculpatory evidence” and not conferring with him sufficiently with reference prospective witnesses. Williams also averred that he had desired to appeal his conviction and the trial court had failed to properly advise him with reference to this.

Following a hearing on the merits of Williams' allegations, and after the appointment of counsel to represent him, the trial court denied the petition with reference each allegation, except his right of appeal. The trial court then authorized a petition to be filed in this court and this court granted the appellant “an out of time appeal”.

Before either the prosecutrix or her brother, both of whom were under the age of 12 years, testified, the able trial judge conducted a hearing on challenge of appellant’s counsel as to their capacity to tell the truth and knowledge of what would happen to each if they failed to tell the truth. The court found both competent to testify in this case.

The appellant’s brother, Frankie T. _, described an event which occurred in September, 1980, when he and a younger sister, the prosecutrix, were taken to a park in Selma, Alabama, to play. The brother indicated he was sliding on the slide when he noticed the following: (R. 24-25).

“Q Now you were playing at the park?
“A Yes, sir.
“Q And then he called Virginia?
“A Yes, sir.
“Q All right. And what happened then?
“A Then he dropped her pants and put Virginia across his lap and started feeling her.
“Q You’re saying he pulled down her pants?
“A Yes, sir. .
“Q And then he put her on his lap?
“A Yes.
“Q And then started feeling on her; is that right?
“A Yes.
“Q All right. And then what did he do? What did “Gas Tank” do then?
“A Then he started feeling all her.
“Q He was feeling on Virginia?
“A Yes.
“Q Did “Gas Tank” do anything with his clothes?
“A Yes, sir.
“Q -What did he do?
“A He took his “um-um” out.
“Q He took his “um-um” out?
“A Yes.
“Q And do you know what he did with that?
“A He stuck part to Virginia.
“Q He stuck it in Virginia.
“A Yes.
“Q. All right. You’re saying that he was feeling Virginia?
“A Yes.
“Q As best you can, can you tell me what he was feeling on Virginia?
“A He had called Virginia over there.
“Q All right. I believe you said that he pulled her pants down; is that right?
“A Yes, sir.
“Q All right. Was he touching her where her pants were down?
“A Yes.
“Q Where her panties usually go?
“A Yes.
“Q All right. Now where were you during this period of time?
“A I was sliding down the slide.
“Q You were sliding down the sliding board?
“A Yeah.
“Q Were you close enough to see this that was going on?
“A Yes, sir.
“Q All right. And you did see this?
“A Yes, sir.
“Q All right. And what you’re testifying to is the truth?
“A Yes.
“Q You don’t want that devil to come get you, do you.
“A No.”

This incident was also confirmed by the prosecutrix in her testimony and through Sergeant Billy Morgan of the Selma Police Department who told of going to the Department of Pensions and Securities in October, 1980, and receiving a report from a Mrs. Leslie Smith, a social worker, concerning a discharge of a young girl who had contracted venereal disease. The child was then contacted and a report received from her which was turned over to the authorities.

The State also subpoenaed the public health records of the appellant and the prosecutrix and it was determined that each had been treated for gonorrhea during the Pall of 1980.

The appellant’s record had been placed in evidence through the Dallas County health officer. These records were objected to by counsel. The date of the tests were October 18, 1980, as being positive for gonorrhea.

The appellant took the stand to deny having fondled or assaulted the young prosecutrix but testified that the prosecu-trix and her brother and sister had stayed with him and his wife on several occasions when their mother was gone or unavailable or their aunt was not available to look after them.

There was no exception to the oral charge of the court.

I

The appellant first asserts that the trial court erred in allowing the health records of the appellant and the prosecu-trix from the Dallas County Health Department to be placed in evidence showing the results of the tests for gonorrhea. Defense counsel had properly objected and moved to exclude these at trial. His objection and motion were overruled and we are of the opinion that this was done correctly.

In Hill v. State, 366 So.2d 296 (Ala.Cr.App.1978), affirmed 366 So.2d 318 (Ala.1979), it was pointed out that there is no constitutional right to refuse to submit to a blood test, and the results of such test taken even against an accused’s will are admissible at trial. See also, Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966) and South Dakota v. Neville, 459 U.S. 553, 103 S.Ct. 916, 74 L.Ed.2d 748 (1983). Clearly the use of evidence taken from bodily tests was here properly admittéd at trial.

II

The appellant also contends that he was not properly permitted to cross-examine the public health officers concerning the reason for having these tests made, arguing that the prosecutrix’s mother had motives or reasons for having such done to incriminate appellant.

It should be first noted that the prosecu-trix’s mother was not subpoenaed by either the prosecution or defense nor did she testify at trial. Thus, whatever her motives or reasons may have been is not properly before the trial court and would have been hearsay when testified by some other witness.

However, defense counsel had subpoenaed other relatives of the prosecutrix who were available to testify but not called upon to testify on this question. In Hill v. State, 366 So.2d 296 at 314, we- find the following:

“Evidence, to be competent and admissible, must be relevant. That is to say, evidence must tend to prove or disprove the issues before the jury. Slagle v. State, 39 Ala.App. 691, 108 So.2d 180 (1959). The determination of the relevancy or lack of relevancy of particular evidence rests largely in the sound discretion of the trial judge. Bryant v. State, 49 Ala.App. 359, 272 So.2d 286 (1972), cert. denied, 289 Ala. 740, 272 So.2d 297 (1973), cert. denied, 412 U.S. 922, 93 S.Ct. 2744, 37 L.Ed.2d 149 (1973). It is, therefore, the duty of the trial judge to limit evidence to the points in issue so that the attention of the jury is not distracted, nor withdrawn from the primary issues, to be directed towards foreign matters or issues of questionable or doubtful relevance. Jones v. State, 17 Ala.App. 394, 85 So. 830 (1920); Hoomes v. State, 34 Ala.App. 121, 37 So.2d 686 (1948).”

As hereinabove noted there was no proper predicate laid showing the unavailability of the prosecutrix’s mother nor was a basis shown for having some other witness testify as to what may or may not have been her motives. Such, in all events, is of dubious relevancy because of the tender age of the victim, 8 years. Good medical practice would require that a victim be examined and treated following sexual encounter to prevent further damage or illness. This alone would be a proper basis for admitting the results of tests. Therefore, the trial court properly admitted the testimony from the public medical health records.

111(a)

Appellant asserted that his trial counsel was inadequate and did not properly represent him. The able trial judge found that the appellant was thoroughly and competently represented at this trial and also had proper counsel at the coram nobis hearing. These findings are fully borne out by the record in this cause. Defense counsel had spent considerable time in interrogating the various State witnesses and had subpoenaed a number of records in preparation of his defense. He had likewise interviewed appellant on several occasions, seeking to obtain any information which might assist with the defense of the case. He made opening arguments and tendered written refused charges and made a number of motions throughout the trial objecting to certain testimony sought to be brought out by the State in its case in chief. We find that this trial record fully sustains the trial judge’s findings that the appellant was fully, thoroughly and competently represented by his original counsel at trial and that witnesses were cross-examined and evidence presented which sought to establish an alibi in appellant's behalf.

Not only has the appellant failed to establish that the conduct of his counsel had reduced the trial proceeding to a farce, sham or mockery, Robinson v. State, 361 So.2d 1172 (Ala.Cr.App.1978), but also the appellant has fallen far short of establishing that he was denied “reasonably effective” assistance of counsel as set forth in Harris v. Oliver, 645 F.2d 327 (5th Cir. 1981). See also, Mitchum v. State, 414 So.2d 168 (Ala.Cr.App.1982) and Trammell v. State, 420 So.2d 855 (Ala.Cr.App.1982).

We therefore hold that this appellant has substantially failed to meet the burden of truth as required in attempting to sustain the allegations made at the coram nobis proceeding. Cannon v. State, 416 So.2d 1097 (Ala.Cr.App.1982).

IH(b)

This appellant, like so many others, who routinely aver after conviction that prior counsel was “ineffective and inadequate” must remember the words of our state Supreme Court in Mills v. State, 275 Ala. 217, 153 So.2d 650 (1963) as follows:

“Conviction of a client does not prove either lack of zeal or skill on the part of counsel.”

See also, Clency v. State, 442 So.2d 148 (Ala.Cr.App.1983) and Roberson v. State, 441 So.2d 1067 (Ala.Cr.App.1983).

IY

We have carefully considered this record in light of the fact that the appellant’s original counsel, through no apparent fault of his, did not file a brief or perfect the appeal to this court. However, we have carefully examined each issue raised and find no error. See Baldwin v. State, 342 So.2d 940 (Ala.Cr.App.1977). This record is free of error.

The judgment of the trial court, including both the original trial proceedings and the coram nobis proceedings, is due to be and the same is hereby affirmed.

AFFIRMED.

All the Judges concur.


author: BOWEN, Presiding Judge.

text:
    Arthur James BLAKE v. STATE.
    2 Div. 390.
    Court of Criminal Appeals of Alabama.
    March 20, 1984.

      John E. Pilcher of Pilcher & Pilcher, Selma, for appellant.
    Charles A. Graddick, Atty. Gen., and Martha Gail Ingram, Asst. Atty. Gen., for appellee.
   BOWEN, Presiding Judge.

This is an appeal from the denial of Arthur James Blake’s petition for writ of habeas corpus alleging that he was deprived of his Sixth Amendment right to a speedy trial.

We recognize the general rule stated in 39 'C.J.S. Habeas Corpus Section 59(a) (1976):

“One whose constitutional right to a speedy trial was violated may be granted relief by habeas corpus where his motion for discharge is denied and no other remedy is available. While pending the delay, the remedy by an appeal is not an adequate remedy so as to preclude habe-as corpus, the remedy for illegal confinement by reason of erroneous postponements lies at the time of such postponements and not after the delay has terminated. After accused has pleaded guilty or has been convicted, he may not urge as a ground for relief by habeas corpus that there has been improper delay in a preliminary hearing or arraignment, or in bringing him to trial. After trial, conviction, and sentencing the remedy for error in denying a discharge on the ground of unlawful delay is by appeal, writ of error, or other advisory remedy, or, in a proper case, by writ of mandamus, and not by habeas corpus.”

Blake’s petition for writ of habeas corpus was filed on June 20, 1983. On July 14th, the petition was denied without a hearing. Appeal was taken and on July 18th, this Court remanded the cause with instructions that an evidentiary hearing be held. That hearing was held immediately before Blake’s trial on August 11th. At that hearing, the parties stipulated on the admission of “all the records of previous testimony of evidence that has previously been taken in CC-82-5N (robbery in the first degree) pri- or to trial today.” Blake was convicted and appealed.

We dismiss the appeal from the denial of the petition for writ of habeas corpus (2 Div. 390) because his appeal from his conviction (2 Div. 391) is' before this Court and because we have fully considered the issue raised by the habeas corpus petition in deciding the merits of his appeal. Since Blake has both appeals before this Court at the same time, we consider the appeal from his conviction the proper forum in which to address the alleged denial of speedy trial issue. Habeas corpus cannot be made to answer the purposes of an appeal. Price v. Holman, 279 Ala. 324, 184 So.2d 835 (1966).

APPEAL DISMISSED.

All Judges concur.


author: HUBERT TAYLOR, Judge.

text:
    Eugene P. WHITE v. STATE.
    3 Div. 862.
    Court of Criminal Appeals of Alabama.
    March 20, 1984.

      Benjamin E. Pool, Montgomery, for appellant.
    Charles A. Graddick, Atty. Gen., and James B. Prude, Asst. Atty. Gen., for ap-pellee.
   HUBERT TAYLOR, Judge.

Appellant, Eugene White, was convicted of assault in the second degree and sentenced to twenty years in the penitentiary under the Habitual Felony Offender Act. We will address three of the nine issues raised on appeal.

White was accused and convicted of severely beating his ex-wife with a wrench. The victim, Mary White, on cross examination made inconsistent statements with regard to the nature of the relationship with White. In addition, there was testimony from a third party that indicated that the victim was possibly drunk at the time she testified. Finally, certain testimony from both the victim and third parties raised a strong inference that the victim did not actually know important facts which she asserted as true. For his part, White attempted, unsuccessfully, to use the defense of insanity.

I

White first contends that error was committed when the trial judge allowed the District Attorney to “testify” by posing a question that assumed a fact not in evidence. The pertinent part of the record is as follows:

DIRECT EXAMINATION BY THE D.A.:
“Q. I notice there is some blood stains on this wrench. Do you know whether or not that’s your blood?
“A. (Witness nods head to indicate the affirmative.)
“MR. POOL: Object to the District Attorney testifying what it looks like. He is not competent to testify whether or not it's blood.
“THE COURT: He can testify as to what it looks like. He can’t make comments about what it is. I overrule your objection from that standpoint. I do sustain your objection from the standpoint of the witness saying yes, it is her blood, if that’s what she is saying.” (Emphasis ours.)

The evidence introduced up to this point tended to show that the wrench had been used to beat the victim, resulting in severe head injuries. The State argues that whether or not a particular stain is blood is a matter of common knowledge and needs no proof. We disagree. If the life or liberty of some future defendant depends on whether some dark stain is blood, dye, paint, catsup, or any one of a thousand other things, the State should not be allowed to assume the fact into evidence. The authority cited by the State merely holds that once a stain has been determined to be blood, it is a matter of common knowledge as to whether the stain is “fresh.”

In the case sub judice, even though the ruling of the trial judge is ambiguous, we cannot hold that it is error. We disapprove of the form of the question used; however, there appears to have been enough evidence before the court from which a legitimate inference could be drawn about the stain. Hargrove v. State, 344 So.2d 823 (Ala.Cr.App.1977).

II

At a later point, the District Attorney again resorted to questions that assumed facts not in evidence. The record reads in part as follows:

“DISTRICT ATTORNEY ON REDIRECT EXAMINATION OF PROSECU-TRIX:
“Q. Mary, do you know that Bryce Hospital said that Eugene was legally sane?
“A. No, I didn’t.
“MR. POOL: Object, Your Honor.
“THE COURT: Sustained. She doesn’t know what Bryce Hospital would say.
“Q. Well, you testified that he went to Bryce—
“MR. POOL: Your Honor, we move to exclude that and move for a mistrial, Your Honor, as the District Attorney is attempting to interject illegal hearsay into the trial.
“MR. HAWTHORNE: First of all,—
“THE COURT: Wait a minute. Let me make a ruling. Denied. Go ahead, Mr. Hawthorne.
“Q. (Mr. Hawthorne continuing) You have already testified, Mary, have you not, that, when Mr. Pool was asking you, that he went up to Bryce; isn’t that right?
“A. That’s right. .
“Q. You don’t know the result of any analysis that might show that he was found to be legally sane?
“A. No, I don’t.
“Q. Now, Mr. Pool—
“MR. POOL: Your Honor, we make the same objection and the same motion to exclude and ask for a mistrial.
“THE COURT: Denied.” (Emphasis ours.)

White contends that the denial of his motions to exclude and motions for mistrial were reversible error, as was the trial judge’s failure to sustain his second objection.

White admitted that he had an argument with his ex-wife and that he hit her, although he denied beating her severely enough to cause the injuries she received. The main thrust of White’s defense was that he was insane at the time of the incident. While it is true that White failed to present a very strong case on the issue of insanity, it was nonetheless his main defense.

The questions put to the witness concerning White’s sanity were improper. Not only was the D.A. testifying to illegal hearsay, but he was using leading questions to impeach his own witness.

The State argues that a negative answer to an improper question causes no injury and does not constitute reversible error. Streeter v. State, 406 So.2d 1024 (Ala.Cr.App.1981); Travis v. State, 397 So.2d 256 (Ala.Cr.App.1981).

Although that is a commonly accepted method of stating the proposition of law involved, it is not entirely correct. The more correct statement of law is that, “The solicitor should not frame his questions so as to assume a fact not proven, but when the witness, answers in such way as to refute the assumption, it is error without injury.” Vickers v. State, 18 Ala.App. 282, 91 So. 502 (1921). In the case sub judice, the negative response did not refute the assumption; rather, it merely indicated that the witness had no knowledge of the fact the D.A. was assuming.

Although the objection to the D.A.’s. first question was sustained, the motion to exclude the answer was denied; that denial was error. The objection to the second improper question concerning White’s sanity should have been sustained and the motion to exclude the answer granted. It cannot be said that these errors were harmless, since they put before the jury illegal evidence that undermined the very essence of White’s defense.

III

Finally, White contends that the trial judge improperly precluded him from attacking the credibility of the State’s main witness. During the course of the examination of a defense witness by defense counsel, the following occurred:

“Q. Mrs. Mitchell, state whether or not, if you can, you know Mary White’s reputation of telling the truth in the community where she lives.
“MR. HAWTHORNE: Objection. That’s an improper question. Her character has not been put in issue.
“MR. POOL: Once you put her on the stand credibility is an issue.
“MR. HAWTHORNE: Credibility but not character. He is trying to get into character evidence Your Honor.
“THE COURT: Sustained.”

As stated in Crowe v. State, 333 So.2d 902 (Ala.Cr.App.1976), “Either party may show by qualified witness that the general reputation for truth and veracity of an opposing witness is bad.” The State argues that no proper predicate was laid for this attempt. The case of Kilgore v. State, 124 Ala. 24, 27 So. 4 (1899), held that where a witness stated he knew the general reputation of the defendant in the community, a sufficient predicate was laid. There can hardly be any clearer attempt to establish a predicate than we have in the present case. The defense counsel was not asking for the reputation of the opposing witness but, rather, he was asking if his own witness knew of that reputation.

In the case of Bankston v. State, 358 So.2d 1040 (Ala.1978), this court said, “Petitioner claims that, after a proper predicate had been laid, the trial court erred in its failure to allow him to impeach Wayne McCrory’s reputation for truth and veracity through witness Carl Piat. The objection is well taken and the trial court erred in its ruling.” It cannot be said that the trial court’s refusal to allow White to lay a predicate is any less an error.

During the course of the trial, it became apparent that the credibility of the victim-ex wife could be successfully attacked. For example, she testified that she saw White pick up a wrench and use it against her. Later, it became clear that the attack occurred in darkness and that the victim did not know what weapon was used on her until a relative suggested to her, while she was still in the hospital, that a wrench was used. There was also testimony that she might have been drunk the day she took the stand. The witness’s credibility was a promising line of attack and the unjustified curtailment of this line of questioning was of substantial prejudice to White.

For the foregoing reasons, the judgment of the lower court is reversed and the cause remanded.

REVERSED AND REMANDED.

All the Judges concur.


author: TAYLOR, Judge.

text:
    Willie Stevenson BANKS v. STATE.
    4 Div. 191.
    Court of Criminal Appeals of Alabama.
    March 20, 1984.

      James A. Ward, Dothan, for appellant.
    Charles A. Graddick, Atty. Gen., and Martha Gail Ingram, Asst. Atty. Gen., for appellee.
   TAYLOR, Judge.

Convicted of possession of cocaine and sentenced to eight years’ imprisonment, appellant Willie Stevenson Banks institutes this appeal, raising numerous issues.

The state’s evidence tended to show that at approximately 10:25 p.m. on November 20, 1982, the appellant ran into the rear of a parked automobile just around the corner from the Dothan Police Station. John Collier, a police officer leaving the station, ran to the scene of the wreck, as did other officers. He found appellant sitting behind the wheel of the car. Appellant got out of the car; he smelled of alcohol, and had slowed motor responses, causing Officer Collier to conclude he was under the influence of alcohol. Collier looked into the car and saw a .357 Magnum pistol, and a type carrier or holster for a gun, called a gun rug, both lying on the passenger floorboard. On the front seat of the automobile was an open bottle of wine. Collier instructed another policeman, Officer Smith, to get the gun. When the gun and holster were removed, Officer Collier observed “at least five” clear plastic packets or envelopes containing a white powdery substance. Collier took these packets in his possession and kept them until he later turned them over to an investigator, Officer John White. Appellant was taken to jail by Officer Martin, charged with DUI.

At the police station, appellant’s personal property was inventoried. In his wallet, appellant had a $2 bill folded in the shape of a square. When it was unfolded to be placed with the appellant’s other money, a clear plastic package or envelope containing white powder fell out. This was turned over by Officer Martin to Investigator White.

The appellant’s defense was that he had given a ride to two hitchhikers who beat him up. He claimed they gave him the white powdery substance which he put inside his $2 bill in his wallet and they left the other 17 packets of white powdery substance in the car. He explained that he had been on his way to the police station to turn in the white powdery substance, which turned out to be cocaine. As he turned the corner on his way to the station, he said his automobile brakes failed, causing him to strike the parked car.

The jury presumably rejected this story when they found appellant guilty as charged of possession of cocaine. Appellant now challenges the means by which the police officers gathered, secured and maintained the evidence.

I

Appellant first challenges state’s exhibit 1, the $2 bill folded up around the packet of cocaine. The same challenge is leveled at state’s exhibit 2, the other 17 packets of cocaine.

Officer White testified that he put exhibits 1 and 2 in the narcotics locker at the police station. It was then testified that Officer Mendheim took the evidence to criminalist Joseph Saloom, who kept it under lock and key when not testing it until he returned it to Mendheim in a sealed condition. Mendheim returned it to the narcotics locker. Officer Martin checked out state’s exhibits 1 and 2 for the purpose of the trial. Officer Martin was unsure whether Officers Smith and White or Officers Smith and Collier took the cocaine out of the car. This uncertainty does not reduce the reasonable probability that the evidence is the same as and not substantially different from the way it was at the commencement of the chain of custody. As we have stated in numerous cases and specifically in Sexton v. State, 346 So.2d 1177 (Ala.Cr.App.), cert. denied, 346 So.2d 1180 (Ala.1977):

“To warrant the reception of an object into evidence against an objection that an unbroken chain of custody has not been shown, it is not necessary that it be proved to an absolute certainty, but only to a reasonable probability, that the object is the same as, and not substantially different from, the object as it existed at the commencement of the chain.”
No error was committed in this respect.

II

Appellant contends that the cocaine was illegally seized because the police had no right to move the gun and holster under which the cocaine was found. We disagree.

While the appellant failed to preserve this issue, the facts are clear that when the police moved the gun and holster, Banks was in their custody, whether or not the actual words “You are under arrest” were said to him. He was certainly not free to leave the scene.

When police officers who arrest a driver for DUI observe a pistol and holster on the floorboard of the perpetrator’s car, they are justified in picking them up and moving them. In this instance, the appellant’s car was towed in and an inventory search was conducted of the rest of the car. To leave the weapon where it was would have been dubious police practice. Of course, when the gun and holster were picked up, the packets of white powder were clearly visible. There is no reason to believe that the officers could have foreseen that they would be there. The police had a right to be where they were, and the intrusion in moving the gun and holster was justified. The discovery of the drugs was inadvertent. Clear plastic packets containing a white powdery substance constitute evidence of wrongdoing. See Myers v. State, 431 So.2d 1342 (Ala.Cr.App.1982), cert. quashed, Ex Parte Myers, 431 So.2d 1346 (Ala.1983); Gaines v. State, 429 So.2d 630 (Ala.Cr.App.1982).

III

Appellant next contends that when the police testified that he was arrested for driving while under the influence, they testified to “a prior bad act” in violation of the rules of evidence. It is obvious in this case, however, that the authorities had to testify to the arrest for driving while under the influence. It was part of the res ges-tae. Moving the pistol was done pursuant to the DUI arrest. This contention has no merit.

IV

Appellant states that the court erred when it put a question to witness Martin as to whether he was the one who got the envelopes out of the car. The witness’s answer was, “Another officer had removed it.” Evidently, appellant objects to the court’s use of the word “envelopes” or to the court’s attempt to clear up what was in fact conflicting testimony as to who took the drugs from the car. This is certainly not error, nor could it have prejudiced the appellant. This contention is without merit.

v

Appellant asserts that the court’s giving the Alabama Pattern Criminal Jury Instructions, Sec. III-E-4.4, violated his rights. The complained of jury instruction states:

“The defendant may testify as a witness on his own behalf, and when he does so you may consider the testimony of the defendant along with all the other evidence, and in the light of the fact that he is the defendant and the interest he has in your verdict. This is to be taken into consideration together with all the other evidence, or lack of evidence.”

Appellant argues that this jury charge singles out the appellant; that it gives his testimony prominence or special attention; and that it tends to disparage his testimony. One of the duties of the trial court is to instruct the jury about the accused’s testimony. This charge correctly states the law and the jury’s duty and should be given in every case where the defendant testifies.

VI

Appellant contends that the court failed to correctly charge the jury on reasonable doubt. Not only did the court charge on reasonable doubt as part of its oral charge, but also it gave ten of appellant’s written requested charges on the subject of reasonable doubt. No proper objection was directed to the question of reasonable doubt, so the issue was not properly preserved. Allen v. State, 414 So.2d 989 (Ala.Cr.App.1981), aff’d, 414 So.2d 993 (Ala.1982). Even had the issue been preserved, we find that the court properly charged on this concept.

VII

Appellant finally contends that the state was required to prove the ownership of the car in which the cocaine was found. This is not the law. The case of Cook v. State, 341 So.2d 183 (Ala.Cr.App.1977), is not authority for this proposition. Appellant did testify that he owned the automobile. Never did he deny that the billfold, the $2 bill, and the cocaine concealed in the $2 bill belonged to him. We can find no merit in this contention.

This case is due to be affirmed.

AFFIRMED.

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


author: ALDERMAN, Chief Justice.

text:
    Frank MIGLIORE, Petitioner, v. CROWN LIQUORS OF BROWARD, INC., Respondent.
    No. 63337.
    Supreme Court of Florida.
    March 8, 1984.
    Rehearing Denied May 15, 1984.
    Naomi Behar and Martin J. Sperry of Krathen & Sperry, Fort Lauderdale, for petitioner.
    John R. Hargrove and Davis W. Duke, Jr. of McCune, Hiaasen, Crum, Ferris & Gardner, Fort Lauderdale, for respondent.
    Larry Klein, West Palm Beach, for The Academy of Florida Trial Lawyers, amicus curiae.
   ALDERMAN, Chief Justice.

We review the decision of the District Court of Appeal, Fourth District, in Migliore v. Crown Liquors of Broward, Inc., 425 So.2d 20 (Fla. 4th DCA 1982), which directly and expressly conflicts with Prevatt v. McClennan, 201 So.2d 780 (Fla. 2d DCA 1967). The issue before us is whether, prior to the effective date of section 768.125, Florida Statutes (1981), a vendor who sells intoxicating beverages to a minor contrary to section 562.11, Florida Statutes (Supp.1978), may be liable to third persons injured by the minor’s operation of a motor vehicle. The Fourth District held that a vendor is not liable to such third persons. We disagree and quash the decision of the Fourth District. This same issue is also before us in Barber v. Jensen, 450 So.2d 830 (Fla.1984), wherein the Fourth District certified this question as being of great public importance.

On the evening of December 2, 1978, Frank Migliore, while riding as a passenger in an automobile, was injured when that automobile was struck by an automobile driven by seventeen-year-old Bruce Gahr-ing. In his amended complaint, Migliore alleged that Crown Liquors of Broward, Inc., provided intoxicating liquors to Gahr-ing, a minor, prior to the incident and collision and thereby placed him in a state of intoxication at the time of the collision. Migliore also alleged that Crown Liquors knew or should have known that Gahring was a minor, yet failed to ask Gahring his age and failed to demand any identification from him. Migliore further alleged that it was foreseeable that, by serving Gahring intoxicating liquors in an excessive quantity, he would become intoxicated and would operate a motor vehicle while intoxicated and that he would thereby pose a danger to himself and others on the highway. This negligent conduct on the part of Crown of placing Gahring in an intoxicated state, alleged Migliore, was a proximate or concurring and contributing cause of the accident and the injuries sustained by Migliore.

Crown Liquors moved for summary judgment on the grounds that Migliore had no cause of action against Crown for its sale of alcoholic beverages to Gahring and that the record contained no evidence that the sale constituted a proximate cause of the automobile accident. The trial court granted this motion and entered summary judgment in favor of Crown Liquors.

Migliore appealed to the Fourth District. The Fourth District affirmed the summary judgment and agreed with Crown Liquors that section 562.11 does not extend liability to injured third parties. It reasoned that the legislature enacted a statute prohibiting the sale of intoxicating beverages to minors for the sole purpose of protecting minors who might become injured as a result of the purchase and consumption of intoxicants. This finding, the Fourth District continued, is buttressed by the legislature’s enactment of section 768.125 which the district court characterizes as creating a cause of action for third parties against vendors.

We do not agree that the legislation making it unlawful to sell intoxicating beverages to minors is intended to protect only the limited class of intoxicated minors who injure themselves. We find that those persons killed or injured by the intoxicated minor to whom the intoxicating beverages were illegally sold are also within the class of persons to be protected by this legislation.

The Florida Legislature, within two years after the twenty-first amendment repealing prohibition was ratified, enacted chapter 16774, section 11, Laws of Florida (1935), which is now section 562.11, making it a crime to sell intoxicants to minors. The first issue to arise under this statute relating to civil liability for its violation was whether a cause of action against the vendor existed in favor of a minor to whom alcoholic beverages were illegally sold resulting in his intoxication and his injury and death. We addressed this issue in Davis v. Shiappacossee, 155 So.2d 365 (Fla.1963). Davis sued the vendor for damages resulting from the death of his sixteen-year-old son to whom the vendor had illegally sold a quantity of beer and whiskey. While under the influence of this liquor,

the sixteen-year-old boy lost control of the car, struck an oak tree, and turned over. He died within six hours of the purchase of the alcohol. The complaint for damages was dismissed, and the Second District Court affirmed, concluding that the automobile accident and death were not reasonably expected or probable results of the illegal sale. We quashed the decision of the Second District and held that sale of alcoholic beverages to a minor in violation of statute is negligence per se and gave rise to a cause of action against the vendor on behalf of the deceased minor’s parents. The facts of this case were limited to a question of whether a cause of action existed in favor of the injured minor to whom liquor had been illegally sold. Because of this factor, it was not necessary for this Court to define the entire class of persons which this statute was designed to protect against the risk of harm that results from selling intoxicating beverages to a minor. This Court thus did not expressly address the issue of whether violation of section 562.11 gives rise to a cause of action in favor of a third party against a vendor who illegally sells alcoholic beverages to a minor who becomes intoxicated and injures the third party.

This issue was initially directly addressed by the Second District in Prevatt v. McClennan, 201 So.2d 780 (Fla. 2d DCA 1967), wherein the minor to whom liquor had been illegally sold in the defendant’s tavern became intoxicated and drew a pistol and shot a patron of the tavern. The third party patron sued the owner of the tavern. Judgment was entered in favor of the plaintiff in the personal injury action, and the Second District affirmed. The Second District correctly held that violation of the statute forbidding sale of liquor to minors constitutes negligence per se and that the statute was

passed to prevent the harm that can come or be caused by one of immaturity by imbibing such liquors. The very atmosphere surrounding the sale should make it foreseeable to any person that trouble for someone was in the making.
The proximate cause of the injury is the sale rather than the consumption. Davis v. Shippacossee, infra, is but one of a number of recent cases holding that in the absence of a Dram Shop Act, a liquor vendor may be liable for consequential results of illegal sales.

201 So.2d at 781.

We agree with the holding and rationale of the Second District in Prevatt. Providing alcoholic beverages to minors involves the obvious foreseeable risk of the minor’s intoxication and injury to himself or a third person.

The First District in Bryant v. Jax Liquors, 352 So.2d 542$Fla. 1st DCA 1977), cert. denied, 365 So.2d 710 (Fla.1978), reiterated the principle announced by Prevatt that section 562.11 was passed to prevent the harm that can be caused by one of immaturity imbibing liquor. It acknowledged, however, that the fact of negligence per se resulting from violation of the statute does not necessarily mean that there is actionable negligence since “[a] plaintiff must allege: 1) that he is of a class the statute was intended to protect; 2) that he suffered injury of the type the statute was designed to prevent; and 3) that violation of the statute was the proximate cause of the injury, deJesus v. Seaboard Coast Line Railroad, 281 So.2d 198 (Fla.1973).” 352 So.2d at 544. In Bryant the minor who consumed the liquor and who became intoxicated and was injured as a result thereof was not one of the minors to whom the liquor was sold. The district court, therefore, affirmed the dismissal of the complaint against the vendor of the liquor.

The Fifth District in Burson v. Gate Petroleum Co., 401 So.2d 922 (Fla. 5th DCA 1981), recognized Prevatt as applying and extending Davis v. Shiappacossee to allow recovery to a third party injured as the result of actions of minors who had consumed alcoholic beverages sold in violation of section 562.11. However, the Fifth District in Burson found that there was no actionable negligence because the minor to whom the liquor was illegally sold was not driving the vehicle that caused the plaintiff's injuries. It distinguished Davis and Prevatt and analogized Bryant, stating:

In Davis, the minor to whom the alcoholic beverage was sold in violation of this statute and whom the seller could see was operating a motor vehicle, consumed the beverage and was killed as a result of his mismanagement of the vehicle resulting from his impaired condition. In Prevatt, the two minors who [were] illegally sold beer consumed the intoxicating beverages on the seller’s premises and started shooting, causing the third party’s injuries. In contrast, the minors in Bryant, to whom the rum was illegally sold, were not alleged to have consumed the alcoholic beverage, nor were facts alleged indicating that the seller had reason to believe that the rum was going to be consumed by Bryant or others, whose impairment of faculties resulting from consumption of alcoholic beverages caused Bryant’s injuries. Likewise, in Stanage [v. Bilbo, 382 So.2d 423 (Fla. 5th DCA 1980)] there was no showing that the injuries resulted from the consumption by the purchasing minor of the illegally sold beer nor were facts alleged from which it could be said that the seller should have foreseen that the beer was likely to be consumed by the minors whose impaired condition might have caused the injuries in question.

401 So.2d at 924.

The present case is analogous to Prevatt. Here, the purchasing minor was the consuming minor who is alleged to have caused the injuries to Migliore.

Moreover, contrary to the Fourth District’s holding in the present case that section 768.125 creates a cause of action for third persons against dispensers of intoxicants for injuries by intoxicated minors, we find that section 768.125 is a limitation on the liability of vendors of intoxicating beverages.

Section 768.125, Florida Statutes (1981), provides:

A person who sells or furnishes alcoholic beverages to a person of lawful drinking age shall not thereby become liable for injury or damage caused by or resulting from the intoxication of such person, except that a person who willfully and unlawfully sells or furnishes alcoholic beverages to a person who is not of lawful drinking age or who knowingly serves a person habitually addicted to the use of any or all alcoholic beverages may become liable for injury or damage caused by or resulting from the intoxication of such minor or person.

When the legislature enacted this statute it was presumed to be acquainted with the judicial decisions on this subject, including Davis and Prevatt. Moreover, the legislative intent that this statute limit the existing liability of liquor vendors is clear from its enacting title which reads: “An act relating to the Beverage Law; creating s. 562.51, Florida Statutes [codified as s. 768.-125], providing that a person selling or furnishing alcoholic beverages to another person is not thereby liable for injury or damage caused by or resulting from the intoxication of such other person; providing exceptions; providing an effective date.” Chapter 80-37, Laws of Florida (1980).

Accordingly, we quash the decision of the Fourth District Court, adopt the Second District’s holding in Prevatt v. McClennan, and remand for further proceedings consistent with this decision.

It is so ordered.

BOYD, OVERTON, McDONALD, EHRLICH and SHAW, JJ., concur.

       Section 768.125, enacted as ch. 80-37, Laws of Florida, became effective on May 24, 1980.


text:
    THE FLORIDA BAR, Complainant, v. Pierce J. GUARD, Jr., Respondent.
    No. 59657.
    Supreme Court of Florida.
    March 22, 1984.
    Rehearing Denied May 10, 1984.
    John F. Harkness, Jr., Executive Director and John T. Berry, Staff Counsel, Tallahassee, and David G. McGunegle, Bar Counsel, Orlando, for complainant.
    Pierce J. Guard, Jr., in pro per., Lake-land, for respondent.
   PER CURIAM.

This disciplinary proceeding is before the Court upon the complaint of The Florida Bar, the report of a referee, and the petition of attorney Pierce, J. Guard for review. We have jurisdiction. Art. V, § 15, Fla. Const.

The Florida Bar instituted this proceeding by a complaint against the respondent in three counts alleging three instances of professional failure in violation of the Code of Professional Responsibility. On one of the three counts the referee found no misconduct and recommended a finding of not guilty. On the other two counts the referee found respondent guilty. The referee recommended a public reprimand, two years of probation with supervision, and a study course in legal ethics. The respondent seeks review of the recommended findings on the ground of lack of evidence. The Bar argues in support of the referee’s findings and recommendations.

The findings of the referee on counts one and three of the complaint are as follows:

As to Count I
Case No. 1080C43
1. In June 1979, Respondent was contacted by W.E. Quisenberry, a lawyer practicing in Calhoun, Kentucky, relative to handling a collection matter for Mr. Quisenberry’s Kentucky clients.
2. Respondent accepted the assignment of the account collection.
3. By letter dated July 9, 1979, Mr. Qui-senberry forwarded to Respondent a check in the amount of $125.00 as an advance on costs incurred by Respondent in the collection of the account Mr. Quisenberry had assigned to him. This check was processed through Respondent’s trust account.
4. Respondent failed to take any further steps toward effecting the collection of the account assigned to him by Mr. Quisenberry.
5. On November 21, 1979, Mr. Quisen-berry telephoned Respondent’s office, at which time he spoke to a person who advised him that Respondent would return his call. Respondent failed to return this call.
6. Before and after November 21, 1979, Mr. Quisenberry made several unsuccessful attempts to telephone Respondent, there being no answer at Respondent’s number.
7. By letter dated November 30, 1979, Mr. Quisenberry requested a status report from Respondent regarding the collection matter which Mr. Qui-senberry had referred to him because Mr. Quisenberry had heard nothing from Respondent regarding this matter since the date collection was referred to Respondent. Respondent failed to respond to this letter.
8. By letter dated January 16, 1980, Mr. Quisenberry requested that Respondent return the original statements he had forwarded to Respondent and the sum of $125.00 which represented the cash advance. Respondent failed to respond to his letter.
9. Subsequent to July 9, 1979 and prior to February 14, 1980, Mr. Quisenber-ry received no communication, oral or written, from Respondent.
As to Count III
Case No. 1080C57
1. Respondent represented the Adcocks and the Niedermayers in a real estate transaction in December 1975. The closing of this transaction occurred on December 5, 1975.
2. Subsequent to this closing, Respondent recorded the deed which did not have the date of acknowledgement on it. When this deed was returned to Mrs. Adcock in January of 1976, she noted the error involving the ac-knowledgement date.
3. Respondent at that time represented that he would correct this error by inserting the acknowledgement date and refiling the deed.
4. Respondent subsequently notified Mrs. Adcock that the deed had been corrected and refiled in the appropriate manner.
5. The Adcocks then went to Respondent’s office on February 19, 1976 to pick up the “corrected” deed, where Respondent, again, assured them that the deed was proper in all respects.
6. When Mrs. Adcock noticed that the deed did not contain a refiling date, Respondent said then that it had been necessary for him to make a new deed, that it had at that time already been signed by the sellers, and was at that time in Bartow to be recorded.
7. The new deed was not executed by the sellers until March 2, 1976.
8. The new deed was not recorded until March 11, 1976.
9. Respondent was aware during his February 19, 1976 meeting with the Adcocks that he had neither refiled the first deed, nor sent, received or forwarded for recording any second deed from Mr. Niedermayer. Only after that meeting, where he represented to the Adcocks that he had forwarded the new deed to the Nied-ermayers, did he forward a new deed to the Niedermayers.
III. Recommendation as to whether or not the Respondent should be found guilty: As to each count of the complaint I make the following recommendations as to guilt or innocence.
As to Count I
Case No. 1080C43
I recommend that the respondent be found guilty and specifically that he be found guilty of the following violations of his Oath as an attorney, the Integration Rules of The Florida Bar and Disciplinary Rules of the Code of Professional Responsibility, to wit:
Violation of Disciplinary Rule 6-101(A)(3), Neglect of legal matter
As to Count III
Case No. 1080C57
I recommend that the respondent be found guilty and specifically that he be found guilty of the following violations of his Oath as an attorney, The Integration Rules of the Florida Bar and Disciplinary Rules of the Code of Professional Responsibility, to wit:
Violation of Disciplinary Rule 1-102(A)(4), engaged in conduct involving dishonesty, fraud, deceit or misrepresentation.
IV. Recommendation as to Disciplinary measures to be applied:
I recommend that the Respondent receive a public reprimand and be placed on probation for a period of 2 (two) years, as provided by Rule 11.10(1), with the special condition that the Respondent be supervised in all of his work, by a member of The Florida Bar, and that he satisfactorily complete a course on legal ethics, approved by The Supreme Court.

We find that sufficient evidence was brought before the referee to support his findings of fact and recommendation of guilt of these two instances of misconduct. Furthermore, respondent has not demonstrated any reason why the referee’s recommended discipline should not be imposed.

We approve the referee’s findings of fact. We also adopt the referee’s recommended discipline, except for the requirement of a study course in legal ethics. By the publication of this opinion, we reprimand attorney Pierce J. Guard, Jr., for violations of the Code of Professional Responsibility. We order respondent placed on probation for two years from the date of this order, with supervision as recommended by the referee and in accordance with the rules and practices of The Florida Bar applicable in similar cases. We also assess against respondent the costs of these proceedings in the amount of $690.48.

It is so ordered.

BOYD, Acting Chief Justice, and OVER-TON, McDonald, EHRLICH and SHAW, JJ., concur.