author: WRIGHT, Presiding Judge.

text:
    Myrtle K. OLIVE v. STATE FARM MUTUAL AUTOMOBILE INSURANCE CO.
    Civ. 4257.
    Court of Civil Appeals of Alabama.
    July 18, 1984.

      Stanley E. Munsey of Rosser & Munsey, Tuscumbia, for appellant.
    Robert E. Jones, III of Poellnitz, Cox & Jones, Florence, for appellee.
   WRIGHT, Presiding Judge.

This is an uninsured motorist case.

An automobile driven by insured Olive was struck from the rear by an uninsured motorist, Grimes. Insured claimed injury, with medical expenses, under the uninsured motorist coverage of her policy of insurance with insurer, State Farm Mutual Automobile Insurance Co. Insured brought suit against insurer for $10,000. Insurer answered and filed a third-party complaint against uninsured motorist Grimes.

At trial insured moved for severance of the third-party action. She further filed a motion in limine to prohibit insurer from informing the jury that a verdict against it and in favor of insured would require a verdict in its favor against the uninsured tort-feasor. The motions were denied.

The actions went to trial before a jury. At the close of all testimony the court granted insured’s motion for directed verdict on the issue of liability in favor of insured against insurer and in favor of insurer and against uninsured third-party defendant. The case went to the jury only on the issue of damages.

The jury returned verdicts in the amount of $650 against each defendant. Insured’s motion for new trial was denied. She appealed.

Insured presents as the first issue the contention that the uninsured motorist statute (§ 32-7-23, Code of Alabama 1975) does not permit the inclusion of a subrogation clause in the uninsured motorist provision of the automobile liability insurance policy.

Insured’s argument on that issue is interesting if not compelling; however, we find nothing in the pleading and trial to indicate that such a legal proposition was presented to the trial court at any point in the trial or in post trial motion. Whether or not subrogation in an uninsured motorist insurance contract is permissible is a question which must wait for answer until properly presented to a trial court. An issue may not ordinarily be presented for the first time on appeal. Green v. Taylor, 437 So.2d 1259 (Ala.1983); Hutchins v. Shepard, 370 So.2d 275 (Ala.1979).

Insured contends error in the denial of severance of her complaint against insurer and the third party complaint of insurer against the tort-feasor. The basic premise of the argument of insured on this issue is dependent upon resolution in her favor of the first issue, i.e., whether or not insurer has a substantive right of action for subro-gation against the tort-feasor. We have said that issue was not presented at trial. Therefore we consider the motion for severance as did the trial court — with the assumption that insurer had the substantive right of contractual subrogation against the tort-feasor if insured established his legal liability for damages. Upon that assumption, we find the law to be conclusive as stated by the supreme court in the case of Barnes v. Tarver, 360 So.2d 953 (Ala.1978). It was therein stated:

“The right to the insurer’s subrogation is dependent upon its liability to Barnes [insured], which in turn is dependent upon Tarver’s [tort-feasor] liability to Barnes. The resolution of all these issues in one lawsuit does not abridge Barnes’ substantive rights. In fact, the power of the court to decide in one lawsuit the issues of the insurer’s subrogation and liability on a policy of insurance was recognized long before the adoption of the Rules of Civil Procedure. Liverpool & London & Globe Insurance Co. v. Federal Land Bank of New Orleans, 233 Ala. 591, 173 So. 91 (1937).”

The purpose of Rule 14, A.R. Civ.P., which provides for third-party practice, is to avoid multiple suits. The success of the suit filed by plaintiff insured against her insurer is dependent upon establishing the legal liability of the uninsured tort-fea-sor for the injury and damages she suffered. State Farm Mutual Automobile Insurance Co. v. Griffin, 51 Ala.App. 426, 286 So.2d 302 (1973). It is established that an insurer may intervene in an action brought by its insured against the uninsured tort-feasor in order to protect its interest in the determination of the issue of legal liability under Rule 24, A.R.Civ.P. Almeida v. State Farm Mutual Insurance Co., 53 Ala.App. 175, 298 So.2d 260 (1974). As in Barnes, supra, the insured may sue jointly both its insurer and the uninsured tort-feasor. In consideration of these cases, we find no reason for, nor error in, denying severance when the insurer third-parties the tort-feasor into an action brought directly against it.

Neither do we find error in thereafter denying a motion in limine seeking to prevent instruction to the jury or reference before the jury to the liability of the tort-feasor to the insurer, if it is found liable to the insured plaintiff. The logic of the argument that the jury might feel so sorry for the “poor and very sweet and lovable” but uninsured third-party defendant as to lessen an award of damages to the plaintiff fails to impress the court.

No matter how it is turned, when the insurance company is sued upon its policy which provides that it does not pay unless the uninsured motorist is liable to plaintiff, the responsibility of the uninsured must be established. The presence of insurance is established. We are unable to accept that the plaintiff is in some manner prejudiced by informing the jury that the one responsible for the necessity of the lawsuit, the third-party defendant, must be charged in the same amount of the damages awarded to plaintiff from the insurance company. The insurer would not likely be sued first if plaintiff’s damages exceeded the uninsured motorist insurance coverage. The more likely course would be to establish by judgment the total legal' liability of the uninsured motorist before turning to the insurer for the limits of its coverage.

It is the conclusion of this court that the trial court did not abuse its discretion in denying severance nor the motion in limine. Committee Comments, Rule 14, A.R.Civ.P.; Volkswagen of America, Inc. v. Harrell, 431 So.2d 156 (Ala.1983).

Plaintiff’s last issue is that the trial court erred in denying the motion for new trial on the ground of inadequacy of damages. It is a rule that the reviewing court will reverse a jury award of damages on the ground of inadequacy only where, after consideration of all reasonable presumptions in favor of its correctness, a preponderance of the evidence is so decidedly against it as to clearly convince the court that it is the result of bias and prejudice and is wrong and unjust. Herring v. Prestwood, 414 So.2d 52 (Ala.1982); Pen nington v. Yarbrough, 406 So.2d 943 (Ala.Civ.App.1981). The rule is particularly applicable in cases where the inadequacy is charged to an award for pain and suffering. Damages for such are largely within the discretion of the jury. Stringfellow v. Rambo, 277 Ala. 349, 170 So.2d 494 (1965); Mack v. Garrison, 51 Ala.App. 453, 286 So.2d 857 (Ala.Civ.App.1973). The presumption of the correctness of the jury’s verdict is strengthened by the denial of a motion for new trial by the trial judge who heard the evidence and observed the witnesses. McKinney v. Alabama Power Co., 414 So.2d 938 (Ala.1982).

The verdict of the jury exceeded the amount of the special damages proved. The excess of the verdict over such damages was small. However, the extent of the injury of plaintiff was in conflict. The resolution of the conflict was for the jury. Contrary to argument of plaintiff, we find no showing of bias or prejudice, nor does the amount awarded indicate an abuse of the jury’s discretion.

Finding no error, the judgment is affirmed.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


source: Caselaw Access Project

author: BRADLEY, Judge.

license: Public Domain

text:
    Virgil Doyle DIXON and Johnnie Ruth Dixon v. David HILL, Dorothy L. Hill and M. David Jones, d/b/a M. David Jones Realty Co., Inc.
    Civ. 4306.
    Court of Civil Appeals of Alabama.
    July 18, 1984.

      Dennis N. Odem, Florence, for appellants.
    Lindsey G. Mussleman of Holt, McKenzie, Holt, Patterson & Mussleman, Florence, for appellees.
   BRADLEY, Judge.

This is a suit for specific performance.

In November 1983 defendant David Hill employed defendant David Jones of David Jones Realty Co., Inc. to sell at public auction two tracts of land in Lauderdale County, Alabama owned by Hill and his wife, Dorothy. The auction was set for November 26, 1983 and the terms of the sale were specifically advertised as: “15% down payment day of sale — balance within 30 days — possession upon delivery of deed_ Sellers reserve the right to reject any or all bids.”

Plaintiff Virgil Dixon attended the sale at the advertised time and location and was the highest and last bidder on the second tract of land, having bid $8,700. Immediately following the sale plaintiff gave Jones, the auctioneer, a check for $1,305 as a fifteen percent down payment on the property and signed the memorandum of the sale prepared by the auctioneer. The written memorandum of the sale prepared by the auctioneer contained the terms of the sale, a description of the property, and the names of the seller and the buyer.

The next day Jones contacted plaintiff and informed him that Hill had rejected his bid of $8,700, but that Hill would accept $13,000 for the property. Plaintiff refused to pay any more for the property and was subsequently informed that Hill had found another purchaser who was willing to pay $13,000. Jones returned plaintiffs check for $1,305.

On December 2, 1983 plaintiffs brought suit against defendants, demanding specific performance of the sales contract. Defendants filed an answer and motion for summary judgment, which the court granted. Plaintiffs appeal.

The dispositive issue on appeal is whether the trial court erred in granting summary judgment in favor of defendants.

“A sale at auction, like every other sale, must have the assent, express or implied, of both seller and buyer.... The contract becomes complete only when the bid is accepted, this being ordinarily denoted by the fall of the hammer.
“Where the seller reserves the right to refuse to accept any bid made, a binding sale is not consummated between the seller and the bidder until the seller accepts the bid. Furthermore, where a right is reserved in the seller to reject any and all bids received, the right may be exercised by the owner even after the auctioneer has accepted a bid, and this applies to the auction of public as well as private property.
“Once a bid has been accepted, the parties occupy the same relation toward each other as exists between promisor and promisee in an executory contract of sale conventionally made. Thereafter, as a rule, the seller has no right to accept a higher bid, nor may the buyer withdraw his bid.” (Footnotes omitted; emphasis added.)

7 Am.Jur.2d Auctions and Auctioneers § 16 (1980).

Plaintiffs argue that the sale was complete when the auctioneer accepted the bid, the fifteen percent down payment on the bid price, and signed the memorandum of the sale. Plaintiffs not only rely on this undisputed set of facts but also point to their affidavit in opposition to the summary judgment motion wherein Mr. Dixon says that seller congratulated him on the sale.

Seller, in his affidavit, says that he specifically reserved the right to accept or reject any or all bids; that he never accepted plaintiff’s bid and, although he was present at the auction and spoke to plaintiff, never mentioned to plaintiff whether he accepted or rejected plaintiffs bid. Seller specifically informed plaintiff the day following the auction that plaintiffs bid of $8,700 had been rejected.

In Alabama a motion for summary judgment may be granted only when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Rule 56(c), Alabama Rules of Civil Procedure; Houston v. McClure, 425 So.2d 1114 (Ala.1983). Defendants, as the parties moving for summary judgment, have the burden to clearly show that plaintiffs cannot recover under any discernible set of circumstances. Bryant v. Morley, 406 So.2d 394 (Ala.1981). If there is a scintilla of evidence supporting plaintiffs’ position so that they would be entitled to a jury trial, entry of summary judgment is inappropriate and is due to be reversed. Legg v. Kelly, 412 So.2d 1202 (Ala.1982); Oliver v. Taylor, 394 So.2d 945 (Ala.1981).

In the case sub judice the trial court obviously concluded that the seller had reserved the right to reject any bid and had, pursuant to that reservation, rejected plaintiff’s bid the day following the auction.

The evidence, by way of affidavit, shows that plaintiff was the highest and last bidder, paid the required down payment to the auctioneer, signed the memorandum of sale prepared by the auctioneer, and stated that seller congratulated him on the sale. Seller says that he never discussed the sale with plaintiff and rejected his bid the day after the sale.

The evidence concerning whether seller accepted plaintiff’s bid on the day of the sale is in dispute. Plaintiff says seller congratulated him on the sale on the day of the auction, impliedly accepting his bid. Seller replies that, although he spoke to plaintiff right after the sale, nothing was said about the sale.

If the evidence that seller congratulated plaintiff on the sale is believed, it could be inferred that seller had accepted plaintiff’s offer to buy and, therefore, could not later reject his bid. See 17 Am. Jur.2d Contracts § 45 (1964). There being a scintilla of evidence supporting plaintiff’s position, the grant of summary judgment under these circumstances would be improper.

Seller replies that there was no written contract of sale entered into by the buyer and seller and, therefore, that the purported sale is not in compliance with the Statute of Frauds. § 8-9-2, Code 1975.

It is true that the seller and buyer did not enter into a written contract of sale for the property in question. However, the auctioneer, after the purported sale, prepared a written memorandum of the sale in which he described the property and inserted the price bid, the terms of the sale, and the names of the buyer and the seller.

Section 8-9-3, Code 1975, provides:

“When lands, tenements or heredita-ments are sold or leased at public auction and the auctioneer, his clerk or agent makes a memorandum of the property and the price thereof at which it is sold or leased, the terms of sale, the name of the purchaser, or lessee and the name of the person on whose account the sale or lease is made, such memorandum is a note of the contract within the meaning of section 8-9-2.” (Emphasis added.)

As can be readily seen, the written memorandum prepared by the auctioneer shortly after the sale meets the requirements of section 8-9-3 and thereby satisfies the requirements of section 8-9-2, Code 1975. Thus, the Statute of Frauds has been satisfied.

The summary judgment granted in this case is improper and it is reversed. The cause is remanded for further proceedings.

REVERSED AND REMANDED.

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


author: HOLMES, Judge.

text:
    Joseph Crum HURD v. Beverly Rhoades HURD.
    Civ. 4131.
    Court of Civil Appeals of Alabama.
    Aug. 8, 1984.

      Bert P. Taylor of Smith & Taylor, Birmingham, for appellant.
    G. Coke Williams of Williams, Williams, Norton & Long, Anniston, for appellee.
   HOLMES, Judge.

The trial court found the husband in contempt and refused to modify certain provisions of a prior decree of divorce. The husband through able counsel appeals and we affirm.

The husband raises several unrelated issues. This court will address the disposi-tive issues and detail the pertinent facts as they relate to the specific issues. We note at this point that the original divorce decree was appealed by the husband. For a more thorough understanding of the facts, interested parties may refer to Hurd v. Hurd, 397 So.2d 133 (Ala.Civ.App.1980), writ denied, 397 So.2d 135 (Ala.1981).

The husband first contends that the trial court erred in requiring the husband to return cash values to certain insurance policies.

The original decree provided for the wife to have as her separate property four different insurance policies issued on the life of the husband. The husband was to pay the premiums on one of the policies.

After the original decree was rendered and the judgment stayed while the case was on appeal, the husband, without the wife’s knowledge or consent, borrowed sums of money against the four insurance policies. The wife would have been entitled to the policies twenty days after the date of the original decree but for the intervention of the appeal and the superse-deas bond. Undoubtedly this action by the husband diminished considerably the value of the property awarded the wife.

Clearly, the trial court under these facts would have the power to require the husband to return the cash value of the policies, thereby restoring the value of those assets as contemplated by the trial court at the time of the original decree. A trial court has inherent power to enforce its prior decrees and to make such orders and issue such process as may be necessary to render the judgment effective. Norris v. Norris, 406 So.2d 946 (Ala.Civ.App.1981); Monroe v. Monroe, 356 So.2d 196 (Ala.Civ.App.1978).

Furthermore, when parties to a divorce action submit themselves to the jurisdiction of a court of equity, the court has the power to use any reasonable means to effect a just property settlement and to adjust equity between the parties. Simmons v. Simmons, 422 So.2d 799 (Ala.Civ.App.1982). Under the facts of the case at bar, the trial court, at a modification-contempt proceeding, did not err in requiring the husband to return the cash value of the sums he had borrowed on the policies. It is apparent that this action was necessary to render the trial court’s original judgment effective.

The husband also contends that the trial court did not have the power to make certain corrections regarding one of the above mentioned insurance policies.

The insurance policies awarded to the wife were identified by number. One of the policies was identified in the original decree as being policy number “275H220.”

At the hearing on the petition for rule nisi and modification, the agent of the insurance company which issued the policy testified that there was no such policy number and that the insurance company uses only numbers, not letters, in its policy numbering system.

After hearing evidence, the trial court determined that the incorrect policy number was mistakenly entered in the decree and policy number 30957647 was substituted for the incorrect number.

As explained above, the trial court has inherent power to enforce its decree and render the decree effective. Norris, at 946.

Additionally, clerical mistakes in judgments may be corrected by the court at any time on its own initiative. Rule 60(a), Alabama Rules of Civil Procedure. There is ample evidence to support the conclusion that the mistake in the instant case was clerical. There existed no such policy as that described in the original decree. Policy number 30957647 did exist and was in fact transferred to the wife before the mistake in the decree was discovered at the hearing on the petitions for rule nisi and modification. The trial court did not err in changing the policy number.

The husband next contends that the trial court erred regarding its finding that the husband failed to pay required alimony in gross.

The decree provides as follows:

“[The husband] shall pay the other and further sum of Forty Thousand Dollars ($40,000.00) as alimony in gross, and in lieu of any other property settlement between the parties, which shall be due and payable at the rate of Four Thousand Dollars ($4,000.00) per annum_”

The husband appears to argue that the phrase “in lieu of any other property settlement between the parties,” meant that the husband could elect to either comply with the specific property divisions enumerated in the decree or give the wife $40,000, but that he did not have to do both. This contention is wholly without merit. It would appear that our prior opinion would settle that question.

In Hurd v. Hurd, 397 So.2d 133 (Ala.Civ.App.1980), writ denied, 397 So.2d 135 (Ala.1981), we stated that “the husband is to pay $40,000 alimony in gross at the rate of $4,000 per year,” in addition to other specifically enumerated property settlement listed in the decree.

In any event, the trial court can interpret its decree. Horsley v. Horsley, 390 So.2d 1058 (Ala.Civ.App.), writ denied, 390 So.2d 1060 (Ala.1980); Fox v. Dick, 389 So.2d 940 (Ala.Civ.App.1980). In the instant case, the trial court’s interpretation is correct. Plainly, the phrase “in lieu of any other property settlement” referred to any other settlement not specifically mentioned or covered in the decree, in other words, any “further” property settlement.

The husband’s next contention is that the trial court erred in awarding the wife an attorney’s fee.

The husband was found to be in contempt. There is evidence to support this finding. The husband failed to pay any child support or periodic alimony from the date of the original decree to the time the first appeal was completed. A total of $9,111 accrued during that time. An additional $1,014 accrued thereafter. As the petition for rule nisi came on for a hearing, the husband offered to pay an amount in settlement and, subsequently, paid approximately $15,000 into the court. The trial court found the husband in contempt for failure to comply with the terms of the divorce decree. The trial court waived punishment because the husband did substantially pay the arrearages. However, the fact remains that the husband willfully failed to comply with the provisions pertaining to child support and periodic alimony when he had the means and ability to comply. Under these circumstances the trial court was within its authority to find the husband in contempt. Fricks v. Fricks, 428 So.2d 80 (Ala.Civ.App.1983).

Section 30-2-54, Ala. Code (1975), provides that

“In all actions for divorce or for the recovery of alimony, maintenance or support in which a judgment of divorce has been issued or is pending and a contempt of court citation has been made by the court against either party, the court may, of its discretion, upon application therefor, award a reasonable sum as fees or compensation of the attorney or attorneys representing both parties.”

In view of the foregoing, there was no error in the awarding of attorney’s fees.

The husband also urges error in the trial court’s failure to modify the prior decree concerning alimony.

The determination of whether a modification of an original decree should be granted is solely within the discretion of the trial court. Ezell v. Ezell, 440 So.2d 560 (Ala.Civ.App.1983).

In the present case, the husband at the time of the hearing on the petition to modify had over $50,000 in Merrill-Lynch accounts. He is the president and sole active stockholder receiving benefits from a closely held corporation and his salary has increased since the original decree. Also, the husband had borrowed $200,000 for his business and purchased a new home for approximately $65,000. Although, as we discovered in the first appeal, it is difficult to gauge the husband’s financial situation (that is partly due to the lack of documentation on the husband’s part), he apparently is enjoying.a good life style.

The husband contends that because the wife had been able to afford elective surgery, this established a material change in circumstances sufficient to warrant a modification. As mentioned above, this is a matter that is discretionary with the trial court and any small change in the wife’s fortunes does not mandate modification.

We do not find an abuse of discretion in the trial court’s refusal to modify the prior decree. Dorey v. Dorey, 412 So.2d 808 (Ala.Civ.App.1982).

This case is due to be and is affirmed.

AFFIRMED.

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


text:
    Mary Ann SCRUGGS v. Elhura Boyce SCRUGGS.
    Civ. 4187.
    Court of Civil Appeals of Alabama.
    Aug. 8, 1984.

      Prank B. Potts of Potts, Young, Blasin-game, Suttle & Putnam, Florence, for appellant.
    James K. Davis of Fite, Davis & Atkinson, Hamilton, for appellee.
   EDWARD N. SCRUGGS, Retired Circuit Judge.

This is a divorce case.

After an ore terms trial, a final judgment was entered which divorced the parties for incompatibility of temperament, awarded to the wife periodic alimony of $600 each month, and found that no order need be made as to the children since they had reached the age of majority. As to a property division, the judgment provided as follows:

“The Court further finds that during the marriage of the parties to this cause they have accumulated certain assets, mainly described as 800 shares of Citizens Bank stock; a brick home in Red Bay, Alabama; lake property, a one-half interest in 36 acres on Cedar Creek Lake; a 1981 Buick LeSabre; a 1977 Buick Century; a 1978 Buick LeSabre; certain other household furnishings, appliances, china, silver, riding mower, etc.
“The Court further finds that the liabilities incurred or owed by the parties include a note to citizens bank in excess of $10,000.00 together with approximately $2,000.00 in charge card bills to various mercantile outlets and doctors and other pharmaceutical purchases.
“The Court, after consideration of the foregoing, is of the opinion that due to the long term of the marriage and further from the evidence in this cause, that the parties have accumulated what they have since the marriage and it is the opinion of the Court that they shall share equally in all those assets which have been accumulated and which are held on the date of this trial together with all liabilities for which those assets stand as security.
“It is FURTHER ORDERED, ADJUDGED AND DECREED by the Court that any assets or liabilities which the Court did not enumerate above which were unknown at the time of the dictation of this Order shall be included in the division of the property set out above, it being the intention of the Court that the parties to this cause shall share equally in all assets accumulated and all liabilities assigned to the accumulation of said assets.
“It is FURTHER ORDERED, ADJUDGED AND DECREED that with reference to the property division, the parties are admonished to settle this matter among themselves within ninety (90) days, however, in the event that they are unable to effectuate a division of the property to the mutual satisfaction of each other, then on motion, the Court will ORDER the Clerk of the Court to proceed to sell at public auction all assets accumulated by the parties after which the Court will pay any outstanding liabilities against said assets and then divide the monies equally among the parties to this cause.”

The wife has appealed. The facts as to each issue which she has raised will be separately developed consistent with the attendant ore tenus rule that, where the evidence is taken before the trial court, the resulting judgment is factually presumed to be correct and may be set aside on appeal only if it is not supported by any credible evidence and is palpably wrong. Lambert v. Lambert, 444 So.2d 856 (Ala.Civ.App.1983). Of course, even if a trial is personally conducted before the trial court, error may result where the trial court does not apply correct rules of law in reaching its decision. Sterrett v. Sterrett, 45 Ala. App. 375, 231 So.2d 152 (1970).

1.

Mrs. Johnson, the wife’s mother, owned an undivided one-half interest in seventy acres of land. She spoke to the parties about conveying it to them since the income from the property was rather limited. Mrs. Johnson said, “I’ll make y’all a deed, and y’all pay me [$]50 a month ....” The parties agreed, and on August 26, 1971, Mrs. Johnson executed an unrestricted deed of her interest in the seventy acres to the husband and wife jointly with a right of survivorship. The wife testified that about $2,000 was paid to her mother, as there were months when Mrs. Johnson would not take the money, “no way.” The husband testified that the fifty dollars a month was paid for as long as his mother-in-law wanted him to pay it, which was until she entered a nursing home in 1981 where she still resides. He agreed that there may have been some months when Mrs. Johnson would not accept a monthly payment.

Approximately fifty percent of that property was conveyed in 1977 to the Bear Creek Development Authority, which constructed a dam resulting in a lake which is situated directly across a road from the remaining thirty-six acres of property of the parties. The land has vastly increased in value because of the lake. The parties received the purchase price of $22,000 from the authority for their interest in the purchased portion. They later sold their interest in a small lot from the remaining land for an additional $3,700. The $22,000 was placed in a certificate of deposit in the names of both parties and of their two children, but in January 1983, the wife eliminated the husband as a payee or owner as to the certificate of deposit. The wife testified that the sale proceeds were used as their own, that the interest accumulated, and that about $7,600 of it was utilized to completely pay the debts of the parties in the summer of 1982.

The wife contends that the trial court erroneously decreed that the remaining thirty-six acres and the certificate of deposit should be equally shared or divided between the husband and the wife. She relies upon the following pertinent provisions of section 30-2-51, Ala.Code (1975):

“[T]he judge may not take into consideration any property acquired prior to the marriage of the parties or by inheritance or gift unless the trial judge finds from the evidence that such property, or income produced by such property, has been used regularly for the common benefit of the parties during their marriage.”

We do not consider that code section to be applicable in this case. Consideration for the property was paid to Mrs. Johnson by the parties over a ten-year period. The trial court could have properly ascertained from the evidence that the land was purchased by the parties from Mrs. Johnson and that it was neither a gift nor an inheritance. The trial court did not divide or establish their respective interests in that real estate for the deed had already done so. Before the judgment was rendered, each party already owned a one-fourth interest in the remaining thirty-six acres, with the other one-half interest being owned by the wife’s brother and his wife. At the time of the sale of part of the land, each party was entitled to receive an equal share in the proceeds, which was used and considered as belonging to them, and as late as the summer of 1982, $7,600 of it was utilized by them for family purposes, the payment of debts. There was no error as to this issue.

2.

The wife contends that the trial court ordered (and erred in doing so) that the parties share equally in the payment of several bank notes totaling over $10,000 and of a $2,000 charge card account. Only the husband signed the notes and that particular charge card was in his name.

The judgment mentioned the payment of debts in three specific instances, and we must first construe the final judgment to ascertain if it really provides in the manner as is contended by the wife.

(a) “[T]hey shall share equally in all those assets which have been accumulated ... together with all liabilities for which those assets stand as security.” The notes and account in question are all unsecured. No asset of either, or both, of the parties is subject to any indebtedness and, accordingly, none of the property stands as security for any debt.

(b) It was the stated intention of the court that “the parties to this cause shall share equally in all assets accumulated and all liabilities assigned to the accumulation of said assets.” A close reading of all of the evidence discloses that two of the notes, while unsecured, were given by the husband in order to borrow funds for the purchase of assets. He executed a bank note in the principal amount of $1,000 in order to purchase a riding lawn mower and another note for $4,901.46 was given by him in order to buy his present vehicle, a 1978 Buick. Those are the only present debts which were used in the accumulation of any of the assets of the parties. Since the vehicle and the mower are considered as assets in which the parties shall share equally, we find no unfairness that the debts which were created in order to purchase those two items, as evidenced by those two notes, be borne equally by the parties. However, none of the other debts or notes mentioned in the testimony fall within this category as created by the final judgment and are due to be paid only by the particular party owing the debt or signing the note.

(c) If the parties do not agree upon a property division and all assets are sold at public auction, “the Court will pay any outstanding liabilities against said assets _” As previously noted, all of the assets of the parties are debt free; hence, there are no outstanding liabilities against them.

In summary as to this issue, the wife had misconstrued the judgment of the trial court. Only the note for $4,901.46 and one note for the principal amount of $1,000 were used for the accumulation of any of their present assets. Only those two notes are due to be borne equally by the parties. None of the other debts attributed to either party falls within any provisions of the final judgment and they are not required to be paid equally by the parties. In providing for the payment of debts, the trial court is granted much latitude in the exercise of its judicial discretion, and we may not disturb the findings of a trial court upon such a matter unless the holding was so palpably wrong as to constitute an abuse of discretion. McCain v. McCain, 446 So.2d 656 (Ala.Civ.App.1984); Elliott v. Elliott, 410 So.2d 74 (Ala.Civ.App.1982). We find no abuse of discretion by the trial court as to this issue.

3.

The daughter of the parties was called by the wife as a witness and the following transpired:

“THE COURT: What is the nature of this offer?
“MR. PATTERSON: She’s their daughter, and she’s 22 years old.
“THE COURT: What are you going to prove by her?
“MR. PATTERSON: Just show that she felt her father had changed in his actions toward her mother.
“THE COURT: Well, you know, I’m not interested in hearing any of her opinion about what her mother and daddy’s problems are.”

Thereafter, the witness was asked pertinent financial questions. At the conclusion of the daughter’s brief testimony, the attorneys approached the bench and an unreported colloquy occurred, and the wife admits that the trial court then stated that it was satisfied that incompatibility of temperament had been proven. The offer of proof was inadequate to cover the other plead ground for a divorce. Under those circumstances, we fail to fathom any harm in not permitting the daughter to testify about any changes in the husband’s actions towards the wife, especially since the trial court provided for an equal division of property. If there was error, it was error without injury. Rule 45, Alabama Rules of Appellate Procedure; Rule 61, Alabama Rules of Civil Procedure; Harris v. Harris, [Ms. May 23, 1984] (Ala.Civ.App.1984); Turner v. Turner, 441 So.2d 965 (Ala.Civ. App.1983).

4.

Prior to the beginning of the evidentiary trial on September 6, 1983, the husband’s attorney admitted in open court that the husband was responsible for the support of the minor son of the parties and that there was no disagreement as to that matter. Everyone was in accord that the young man was eighteen years of age at that time and that he attended college at the University of North Alabama, where he then lived. The wife swore that the husband was paying for the boy’s schooling. Their daughter is twenty-two years old.

The trial court ascertained in the judgment “that the children born during the marriage have reached the age of majority and the Court need not consider any custody or care arrangements for said children.” That was an erroneous holding insofar as the son was concerned, and the issue was duly raised in the wife’s motion for a new trial, which was overruled. The learned trial court erred to a reversal in not making some provisions for the son’s support, maintenance, and education from the date of the judgment until the son reached, or shall reach, his majority. This cause is remanded to the trial court for such purpose and for such additional proceedings upon that issue as may be required. In the discretion of the trial court, the husband may be entitled to credits for any and all support which he provided, or shall provide, for the son during the period in question. Smith v. Smith, 443 So.2d 43 (Ala.Civ.App.1983).

The judgment of the trial court is affirmed in all respects except as to the issue herein numbered four (4), as to which the matter is reversed and remanded to the circuit court.

The wife has applied for an attorney’s fee upon this appeal. Since the reversal of this cause only concerned one aspect of the case, we do not deem that it would be reasonable or equitable to impose all of the fee upon the husband which the wife’s attorney might be entitled to for his expenditure of time, expertise, and office expenses as to the entire appeal. Accordingly, the husband shall pay to the wife the sum of $400 to be applied upon the fees of her attorney for representing her before this court.

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

AFFIRMED IN PART; REVERSED AND REMANDED IN PART.

All the Judges concur.


text:
    Bennett HOWLETT v. STATE of Alabama.
    Civ. 4308.
    Court of Civil Appeals of Alabama.
    Sept. 5, 1984.
    Bryce U. Graham, Tuscumbia, for appellant.
    Mary Lee Stapp and Lois Brasfield, Asst. Attys. Gen., for appellee.
   EDWARD N. SCRUGGS, Retired Circuit Judge.

This is a paternity action. The purported father (the defendant) has appealed. We affirm.

The mother of the child, Mrs. Taylor, claimed that the defendant was the father of Micah Taylor, who was born on September 22, 1976. Immediately before the trial, the state filed a motion in limine to restrict the defendant’s right to cross-examine witnesses or to otherwise introduce evidence regarding any other illegitimate children of the mother and regarding evidence pertaining to sexual relations between the mother and any other person, other than the defendant, unless the defendant first showed that such sexual relations occurred during the time that Micah could have been conceived. At the hearing upon that motion in the trial court’s chambers, it was stipulated that the child could have been conceived from 260 to 301 days before the date of Micah’s birth. The trial court granted the state’s motion in limine, citing as authority for its action the following:

“If the state proves the pregnancy of, or birth of a child to, the prosecutrix in bastardy, carnal knowledge, incest or other sexual offense for the purpose of showing the fact of sexual intercourse with the prosecutrix, the accused then has the right to prove the prosecutrix’s sexual intercourse with other men about the time of conception. Such evidence is relevant as tending to cast doubt upon the implied claim that the accused is the father of the child. Under this rule, the accused also has the right to show that, about the time the child was begotten, the mother was in the company of another man under circumstances affording a peculiarly good opportunity for him to have had sexual relations with her.
“It must be emphasized that the accused is not entitled to prove the mother’s sexual intercourse with others at unspecified times or at a time when, according to the laws of nature, conception could not have occurred. Likewise, the accused may not prove association of the prosecutrix with other men if such conduct has no substantial tendency to prove their paternity of the child.
“Sometimes the courts have spoken of the prosecutrix’s intercourse with other men as being admissible if, but only if, such intercourse is shown to have occurred within the period of gestation. It is sometimes said that such intercourse must have occurred about the time of the commencement of the period of gestation.”

C. Gamble, McElroy’s Alabama Evidence § 51.01(2) (3d ed. 1977) at 107.

Following a lengthy trial, the jury’s verdict was in the defendant’s favor, and a final judgment was rendered in accordance with the verdict. The state filed a motion for a new trial based upon violations by the defendant’s attorney of the trial court’s in limine ruling. After a hearing, the trial court granted the state’s motion for a new trial based upon the trial court’s expressed finding that the attorney representing the defendant disregarded the trial court’s ruling in limine “that a certain line of evidence would not be allowed and persisted in attempting to get such evidence before the jury to the prejudice of the plaintiff.” The record upholds that factual finding. Some of the evidence sought to be so introduced or elicited by the defendant was not admissible under the rules as summarized in McElroy’s Alabama Evidence, supra, and such evidence violated the trial court’s order in limine. The trial court was in an especially advantageous position to observe as to whether or not the evidentiary questions, observations or objections of defense counsel, which were in controversy, were of such a combined nature that the jury was prejudiced against the state thereby.

The Supreme Court of Alabama’s decision in Louisville and Nashville Railroad Company v. Phillips, 293 Ala. 713, 310 So.2d 194 (1975), is determinative of this ease. In upholding the trial court’s grant of a new trial because of a violation of an order in limine, it was thus stated:

“The principle to be followed in making the determination of the correctness of the trial court’s action in ordering a new trial is well stated in Birmingham Baptist Hospital v. Blackwell, 221 Ala. 225, 128 So. 389 [1930]:
“ ‘It is the generally accepted rule that it will constitute grounds for a new trial if counsel, in disregard of the court’s ruling that a certain line of evidence is inadmissible, persists in attempting to get such evidence before the jury to the prejudice of the unsuccessful party. * * * 221 Ala. at 228, 128 So. at 392.’
“More apt, perhaps, to the facts of the case before us, in light of the proceedings in chambers on the motion in li-mine, is the quote from Metropolitan Life Insurance Co. v. Carter, 212 Ala. 212, 102 So. 130 [1924], in Ritchey v. State, 293 Ala. 265, 302 So.2d 83 [1974]:
“ ‘ * * * It is clear to us that the trial judge was endeavoring to prevent the jury from being influenced by what he deemed to be an illegal inference from the testimony. To prevent a miscarriage of justice, it is always the duty of a trial judge to so conduct the trial as to see that extraneous influences do not find their way into the jury box. It has often been said:
“ ‘ “ * * * One of the highest functions of our courts, organized as they are for the fair and impartial administration of justice, is to ‘prevent, as far as possible, all improper, extraneous influences from finding their way into the jury box.’ ***”’.
Indeed, just as it is the duty of the trial judge to so conduct the trial as to see that extraneous influences do not find their way into the jury box, likewise it is his duty to correct the result when it is determined by him that such did find their way in and probably influence the verdict. Taylor v. Brownell-0’Hear Pontiac Co., 265 Ala. 468, 91 So.2d 828 [1956].’
“... We think the test applied in Taylor v. Brownell-0’Hear Pontiac Co., supra, cited by plaintiff, is the one more appropriately applied to the situation presented by the case at bar. There the trial judge had granted a new trial on account of improper argument of counsel in connection with which this court went on to say:
“ ‘The trial judge was present and was in a position to observe the manner of counsel and the countenance and expressions of the jury and the things complained of which transpired. In other words, the trial court, in acting upon the motion, was in possession of data and circumstances which are not and could not be presented by the record to this court. For this reason, we cannot disturb the conclusion reached unless we can say that it affirmatively appears from the great weight of the evidence and the surrounding facts and circumstances that this conduct did not influence the jury in the rendition of the verdict either as to result or amount. Thames v. Louisville & N.R. Co., 208 Ala. 255, 94 So. 487 [1922].’
“ ‘It has long been a rule of law in this jurisdiction that the granting or refusing of a motion for a new trial is a matter resting largely in the discretion of the trial court, and its order granting a new trial will not be disturbed on appeal unless some legal right of the appellant has been abused. There is a presumption that the court’s discretion was properly exercised. The lower court will not be reversed unless the record plainly and palpably shows that the trial court was in error. (Citations omitted).’ 265 Ala. at 469, 91 So.2d at 829.”

293 Ala. at 717-719, 310 So.2d at 198-199.

We have reviewed the trial record and have studied the briefs of able counsel. The record does not reveal that the trial court was palpably wrong or that it abused its discretion in granting a new trial. We cannot say that the forbidden actions of defense counsel did not influence the jury. We affirm.

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

AFFIRMED.

All the Judges concur.


author: PER CURIAM.

text:
    Ex parte Geryl Watson WILLIS. (Re: Geryl Watson Willis v. State of Alabama).
    3 Div. 702.
    Court of Criminal Appeals of Alabama.
    Nov. 9, 1982.
    Rehearing Denied Nov. 24, 1982.
   PER CURIAM.

PETITION DENIED. NO OPINION.

All the Judges concur. .

Decision reversed, Ala., 456 So.2d 327.


author: FAULKNER, Justice.

text:
    Ex parte Geryl Watson WILLIS. (Re: Ex parte Geryl Watson Willis. Petition for Writ of Habeas Corpus to set Bail and Other Relief).
    82-236.
    Supreme Court of Alabama.
    July 8, 1983.

      Jim Zeigler, Montgomery, for petitioner.
    Charles A. Graddick, Atty. Gen. and Richard L. Owens, Asst. Atty. Gen., for respondent.
   FAULKNER, Justice.

The petitioner, Geryl Watson Willis, was arrested and charged with possessing four types of controlled substances. The indictment contained four counts, each of which alleged possession of a different controlled substance at the same time and place. The defendant was ultimately sentenced to four consecutive fifteen-year sentences. Following denial of the defendant’s written request to be admitted to bail pending appeal, he petitioned the Court of Criminal Appeals for a writ of habeas corpus to set bail. The Court of Criminal Appeals denied the petition and the application for rehearing without issuing a written opinion. We granted the defendant’s petition for writ of certiorari to review the Court of Criminal Appeals’ refusal to grant the petition for writ of habeas corpus.

The case was submitted on the following stipulation of facts:

“The four alleged controlled substances referred to in the four counts of the indictment in this case were all found in one room at the Matador Inn on the day the Defendant was arrested. They were found in a search of the room by the Montgomery Police, who had been called to the scene. The Defendant was found in the room asleep or else passed out.”

The petitioner’s assignment of error centered around Vogel v. State, 426 So.2d 863 (Ala.Cr.App.1980), and § 12-22-170, Code of Alabama, 1975.

In Vogel, police officers who were patrolling an isolated dirt road near an abandoned air strip on which they had previously run across persons “hunting squirrel out of season,” “love making,” “drinking beer” and so forth found the two defendants standing near the open trunk of a parked automobile. After the defendants’ arrest for littering, a search of their automobile revealed “loose drugs” and “all kinds of paraphernalia” in the trunk and- three “Army type duffel bags” stuffed with marijuana in the back seat. Both defendants were indicted on fourteen counts of possession of various controlled substances and were found guilty with respect to eleven of the fourteen counts. Both defendants were sentenced separately as to each count; with some of the sentences to run concurrently and others to run consecutively. On appeal, the Court of Criminal Appeals ruled that the offense of possession of controlled substances is complete once the presence of the first controlled substance is proven and that the presence of other controlled substances at the same time cannot form the basis for multiple prosecution or sentences:

“It is thus our holding that where, as here, there is but a single point of control in time and place over several types of controlled substances, only a single offense has been committed, the offense of possession of controlled substances, and only one sentence is authorized. Pursuant to this reasoning, we find that, on these facts, the trial court erred in imposing multiple sentences on appellants.”

Vogel, supra, at 882. The State’s petition for certiorari was initially granted by this Court to consider whether the simultaneous possession of several types of drugs at the same time constitutes multiple offenses; that writ was subsequently quashed as improvidently granted. Vogel v. State, 426 So.2d 882, 886 (Ala.1982) (on second application for rehearing).

The petitioner based his contention that he is entitled to bail on § 12-22-170, Code of Alabama, 1975, which states:

“When any question of law is reserved in case of a felony and it shall be made known to the court that the defendant desires to take an appeal to the appropriate appellate court, judgment must be entered against the defendant, but execution thereof must be stayed pending the appeal and the defendant held in custody. If the sentence is for a term not exceeding 20 years, the judge must direct the clerk of the court in which the conviction is had to admit the defendant to bail in a sum to be fixed by the judge, with sufficient surety, conditioned upon his appearance at the court, from time to time thereafter, as fixed by the court to abide such judgement as may be entered on the appeal. All proceedings for forfeiture of bail and arrest under this section shall be had and conducted as is otherwise provided in this Code for such proceedings.”

Petitioner’s argument, then, is as follows: The maximum sentence to which he could properly have been sentenced for possession of controlled substances, as that statute was interpreted in Vogel, was fifteen years. Therefore, since § 12-22-170 requires that a defendant whose case is pending on appeal be admitted to bail if his sentence does not exceed twenty years, the defendant is entitled to post a bond during the pendency of his appeal.

At the time the instant petition was filed, the State’s petition for writ of certiorari in Vogel was pending before this Court. The State’s arguments in opposition to the petition in the case sub judice were directed toward overruling the precedent established by the Court of Criminal Appeals in Vogel. Having declined to review the decision of the Court of Criminal Appeals regarding the propriety of multiple sentences in Vogel, we deem it inappropriate to examine the issue here.

Under the facts of the instant case the maximum sentence which should have been imposed was fifteen years. Therefore, the petitioner was, as a matter of law, entitled to be admitted to bail pending the appeal of his conviction pursuant to § 12-22-170.

The decision of the Court of Criminal Appeals denying the defendant’s petition for writ of habeas corpus is reversed and the case is remanded for further proceedings not inconsistent with this opinion.

REVERSED AND REMANDED.

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


text:
    Ex parte Geryl Watson WILLIS.
    3 Div. 702.
    Court of Criminal Appeals of Alabama.
    July 29, 1983.
   AFTER REMANDMENT BY THE ALABAMA SUPREME COURT

PER CURIAM.

ORDER ISSUED REMANDING CAUSE TO THE CIRCUIT COURT OF MONTGOMERY COUNTY FOR THE PURPOSE OF FIXING A BOND IN THIS CASE UNDER THE PROVISIONS OF SECTION 12-22-170, CODE 1975, ON AUTHORITY OF EX PARTE GERYL WATSON WILLIS, ALABAMA SUPREME COURT NO. 28-236.

All the Judges concur, except SAM TAYLOR, J., who recuses himself.


author: BOWEN, Judge.

text:
    John Edward PICKETT v. STATE.
    3 Div. 504.
    Court of Criminal Appeals of Alabama.
    Nov. 23, 1982.
    Rehearing Denied Dec. 28, 1982.
    Certiorari Denied March 11, 1983 Alabama Supreme Court 82-341.
    On Return to Remand, Affirmed No Opinion, Aug. 16, 1983.

      C. Winston Sheehan, Jr. of Ball, Ball, Duke & Matthews, Montgomery, for appellant.
    Charles A. Graddick, Atty. Gen., and Martha Gail Ingram, Asst. Atty. Gen., for appellee.
   BOWEN, Judge.

The defendant was indicted and convicted for sexual abuse in the first degree in violation of Alabama Code Section 13A-6-66 (1975). He was sentenced as an habitual offender to sixteen years’ imprisonment.

Evidence for the State established that the victim was a ten-year-old girl whose mother was employed by the defendant. On the morning of August 24, 1981, the defendant spoke with the child’s mother and offered to take the girl to get something to eat. After they arrived at the defendant’s apartment, the defendant grabbed the victim’s hand and took her into the bedroom. He asked her if she could keep a secret and inquired whether she wanted to have children. Then he pulled her clothes down and put his finger inside her vagina. She began to cry, told him to stop, and said she was ready to go home. The defendant took the child home about noon and the girl reported the incident to her mother, who called the police. An officer from the Youth Aid Division of the Montgomery Police Department investigated the complaint and took the child to the Jackson Hospital emergency room at 5:45 P.M., where she was examined and released at 7:45 P.M.

On cross examination, the victim testified that she did not want her mother to marry the defendant. She also admitted that she had previously made a false accusation of sexual abuse against the defendant’s stepson and had been punished for it by her mother.

Over the defendant’s objection, the trial court admitted the hospital emergency room report which contained the following handwritten findings:

“History and Physical. Hymen broken — smooth edges, no evidence of recent trauma to hymen. Erythema on lateral aspect of vaginal wall bilaterally. “Diagnosis. Recent vaginal trauma.”

The report also included a typewritten notation under the space marked “Cause of Accident or Illness” which read “Sexual Abuse”.

After the State rested, the defense called two teachers from the school where the victim was enrolled to testify to the child’s reputation for untruthfulness.

I

The defendant argues that the victim’s hospital record should not have been admitted into evidence (a) because it constituted hearsay and (b) because it denied him his Sixth Amendment right to confront the witnesses against him.

A

The Hospital Record As Hearsay

A copy of the hospital record was admitted under Alabama Code Sections 12-21-5, 6, 7 (1975). The certificate of the custodian, attached to the envelope containing the copy of the emergency room report, was identical in form to that prescribed in Section 12-21-7. Section 12-21-6 provides:

“When so prepared and certified, the copy of said hospital records shall be admissible in evidence in any court in the State, if and when admissible, in prima facie proof of the facts therein shown just as if otherwise verified and just as if the copy were the original .... All the circumstances of the making of such hospital records, including lack of personal knowledge of the entrant or maker of such hospital records, may otherwise be shown to affect the weight of such hospital records, but this shall not affect their admissibility.”

However, in order to constitute an exception to the hearsay evidence rule, the hospital record must be shown to have been made in the usual course of business, as required by Section 12-21-5. Sections 12-2-6 and -7 must be read in conjunction with Section 12-21-5. Whetstone v. State, 407 So.2d 854, 860 (Ala.Cr.App.1981). Section 12-21-5 is a “specialized business record statute ... which renders admissible a certified copy of hospital records that are kept in the regular course of the particular hospital’s business.” C. Gamble, McElroy’s Alabama Evidence, Section 254.01(7), p. 99, 1980 Supplement (3rd ed. 1977). Consequently, a copy of a hospital record will constitute an exception to the hearsay evidence rule where (1) the copy was properly certified by the custodian (Section 12-21-7), (2) the original hospital record was made and kept in the usual and regular course of business of the hospital, (3) it was in the regular course of business of the hospital to make and keep such record, and (4) the record was made at the time of such acts, transactions, occurrences or events therein referred to occurred or arose or were made, or within a reasonable time thereafter (Section 12-21-5). Requirements (2), (3) and (4) of this predicate bring the hospital report under the business record exception to the hearsay rule. Compare Section 12-21-5 (hospital records) with Section 12-21-43 (Business Records Act). A certified copy of an original hospital record which meets the requirements of the business records act of Section 12-21-43 constitutes an exception to the hearsay rule. Seay v. State, 390 So.2d 11, 12 (Ala.1980); McElroy, Section 254.01(7). However, hearsay in a properly certified copy of a hospital record not shown to have been made in the regular course of business is objectionable. Whetstone, 407 So.2d at 860-61; Lowery v. State, 55 Ala.App. 511, 518, 317 So.2d 357, cert. denied, 294 Ala. 763, 317 So.2d 372 (1975).

Here, the State proved that the emergency room report was a business record by a second certificate of the custodian in addition to the one required by Section 12-21-7. On the envelope containing the victim’s record was the additional certificate:

“I further certify that these hospital records were made and kept in the usual and regular course of business of said hospital and it was in the regular course of business of said hospital to make and keep said records and that said records were made at the time of such acts, transactions, occurrences or events therein referred to occurred or arose or were made, or within a reasonable time thereafter.”

We know of no statute authorizing such a certificate and providing an extra-judicial means of establishing that a writing is a business record. “Unless a statute provides otherwise, evidence generally only comes into court through articulation by a witness.” Hutchens v. State, 45 Ala.App. 507, 518, 232 So.2d 687, cert. denied, 285 Ala. 755, 232 So.2d 700 (1970). See also Austin v. State, 354 So.2d 40, 42 (Ala.Cr.App.1977), cert. denied, 354 So.2d 44 (Ala.1978).

However, the defendant’s objection to the hospital report as hearsay did not preserve this issue for review. As in Thompson v. State, 384 So.2d 1131, 1134-35 (Ala.Cr.App.1979), cert. denied, 384 So.2d 1135 (Ala.1980), the trial court was not called upon to determine whether the copy of the emergency room report was objectionable on grounds that it was not properly shown to have been made in the regular course of business or upon any ground other than the asserted grounds of hearsay and denial of the defendant’s right of confrontation.

The defendant also argues that the admission of the notation “Sexual Abuse” under “Cause of Accident or Illness” on the emergency room record was reversible error because it constituted a conclusion on the ultimate issue in the case. He correctly cites Wyatt v. State, 405 So.2d 154 (Ala.Cr.App.1981), for the proposition that such conclusory statements concerning the cause of a victim’s injury are inadmissible. “(D)ata pertaining to the cause of the injury, unless essential to a diagnosis, should be excluded.” Liberty National Life Ins. Co. v. Reid, 276 Ala. 25, 36, 158 So.2d 667 (1963).

The objection to the term “child abuse” in Wyatt, however, was specifically aimed at the inadmissibility of the conclusion. 405 So.2d at 155. Here, the defendant objected to the entire report on the basis of hearsay without specifying the impropriety of the conclusion. While the typewritten notation “Sexual Abuse” no doubt may have been based on the hearsay statements of the victim, the defendant’s objection did not focus the trial court’s attention on the specific matter found objectionable. See Anderson v. State, 35 Ala.App. Ill, 44 So.2d 266 (1950).

“When a party objects to a document as a unit that contains admissible as well as inadmissible matter, the trial court is justified in overruling the objection.” Smith v. State, 354 So.2d 1167, 1172 (Ala.Cr.App.1977), cert. denied, 354 So.2d 1172 (Ala.1978). A defendant cannot complain on appeal of the admission of a written statement over his general objection where some parts of the document were admissible. It is not for the trial court to separate the admissible from the inadmissible. Shorter v. State, 63 Ala. 129 (1879); Johnson v. State, 32 Ala.App. 101, 104, 22 So.2d 102, reversed on other grounds, 246 Ala. 630, 22 So.2d 105 (1945). The objection should separate the good from the bad, Brown v. State, 40 Ala.App. 226, 112 So.2d 500, cert. stricken, 269 Ala. 180, 112 So.2d 504 (1959); Haney v. State, 20 Ala.App. 236, 101 So. 533, cert. denied, Ex parte Haney, 211 Ala. 614, 101 So. 537 (1924); Patterson v. State, 8 Ala.App. 420, 62 So. 1023 (1913).

Further, the record reflects that the defendant did specifically object to “certain matters with the reports themselves that may be excluded as being an opinion.” The court then deleted those portions of the hospital record containing the victim’s explanation of her injuries. From the record:

“THE COURT: Let’s use the copy that has deleted the statement of the child as incriminating to your client, Mr. Shee-han, whereas it is customary to take that as part of it. They also ask the alleged injured person what is the matter with you. What happened to you. That is part of this record but nonetheless, out of excess of caution, I am inclined to not put it in.”

From the foregoing, it is clear that the defendant had the opportunity to point out and have deleted from the copy shown to the jury any portions of the hospital record which he found to contain inadmissible opinions or conclusions. We, therefore, find that the report as a whole was admissible as a business record exception to the hearsay rule, and that the inadmissibility of the term “Sexual Abuse” contained therein was not properly brought to the trial court’s attention.

B

The Sixth Amendment Question

The resolution of the hearsay question does not eliminate the issue of the defendant’s right to confront and cross examine the witnesses against him. As the United States Supreme Court observed in California v. Green, 399 U.S. 149, 90 S.Ct. 1930, 26 L.Ed.2d 489 (1970):

“While it may readily be conceded that hearsay rules and the Confrontation Clause are generally designed to protect similar values, it is quite a different thing to suggest that the overlap is complete and that the Confrontation Clause is nothing more or less than a codification of the rules of hearsay and their exceptions as they existed historically at common law. Our decisions have never established such a congruence; indeed, we have more than once found a violation of confrontation values even though the statements in issue were admitted under an arguably recognized hearsay exception.”
399 U.S. at 155-156, 90 S.Ct. at 1933-34.

Although the hearsay rules and the Confrontation Clause do not completely overlap, it is clear that a similar analysis applies to problems surrounding each. Some evidence qualifies as an exception to the hearsay rule because it is deemed sufficiently reliable to be admitted without the presence or opportunity for cross examination of the declarant. McCormick on Evidence, Section 262 at 628 (E. Cleary 2d ed. 1972). For example, “(t)he very essence of the admissibility of a business record is its probability of trustworthiness.” Neal v. State, 372 So.2d 1331, 1343 (Ala.Cr.App.), cert. denied, 372 So.2d 1348 (Ala.1979). Likewise, the rights of confrontation and cross examination are not absolute; some evidence which has “indicia of reliability” also meets the constitutional requirements of the Sixth Amendment even though the declarant is not present for cross examination. Dutton v. Evans, 400 U.S. 74, 89, 91 S.Ct. 210, 220, 27 L.Ed.2d 213, 227 (1970). See also California v. Green, supra.

Although the United States Supreme Court has not outlined a test to determine whether evidence admissible as an exception to the hearsay rule is also constitutionally permissible in light of the confrontation clause, many courts have engaged in a weighing process, considering some or all of the following criteria:

“(W)hether the witness is unavailable and the prosecution has made good faith and reasonable efforts to procure the witness; whether the evidence has high standards of assurance of reliability or trustworthiness; ... whether the statements introduced are subject to divergent views; whether there is high probability of assurance that the cross examination of the witness would not cast any doubts on the admitted statements; ... whether the defendant had been afforded prior opportunities for cross examination of the witness; whether the evidence is collateral or probative of an element of the crime; whether the evidence ties the defendant directly to the crime; and whether the practical considerations of convenience and speedy trials outweigh the inconvenience of producing the witness.”
State v. Olson, 75 Wis. 2d 575, 589-91, 250 N.W.2d 12, 19-20 (1977) (footnotes omitted).

See also Henson v. State, 332 A.2d 773 (Del.1975); Gregory v. State, 40 Md.App. 297, 391 A.2d 437 (1978); State v. Henderson, 554 S.W.2d 117 (Tenn.1977). See generally, Annot. 69 A.L.R.3d 22 (1976).

In spite of the fact that Alabama has- not adopted any specific test, our decisions indicate that several factors have been considered by our appellate courts in determining whether documentary evidence introduced without the opportunity for cross examination of its maker satisfies the requirements of the confrontation clause. Such factors include (1) whether the evidence has a high probability of reliability, Neal v. State, 372 So.2d at 1343; (2) whether the evidence is “essentially documentary” or essentially testimonial, Griggs v. State, 37 Ala.App. 605, 609, 73 So.2d 382 (1954), Woodward v. State, 5 Ala.App. 202, 206, 59 So. 688 (1912); (3) whether the evidence is collateral, is used by the State only in rebuttal, or is probative of a material element of the offense, and if the last, whether the evidence is cumulative to that given by live witnesses, Seay, 390 So.2d at 14, McCrary v. State, 398 So.2d 752, 755 (Ala.Cr.App.), cert. denied, 398 So.2d 757 (Ala.1981), Wiley v. State, 389 So.2d 604, 608-09 (Ala.Cr.App.1980), Lowery v. State, 55 Ala.App. 514 at 519-20, 317 So.2d 365 (1975); (4) whether the evidence connects the defendant directly to the offense charged, Wiley v. State, 389 So.2d at 609; and (5) whether the defendant has an alternative to, or a prior opportunity for, cross examination, Seay, 390 So.2d at 14. These factors must be balanced against a defendant’s rights secured by the confrontation clause.

Applying these factors to the instant case we find, first, that the hospital record has a high degree of reliability. The enactment of Sections 12-21-5 though -7 indicates that hospital records are regarded as especially trustworthy in this State. Wigmore explains the special treatment accorded hospital records as follows:

“The medical records of patients at a hospital ... should be admissible _ There is a necessity; the calling of all the individual attendant physicians and nurses who have cooperated to make the record even of a single patient would be a serious interference with convenience of hospital management. There is a circumstantial guarantee of trustworthiness ... for the records are made and relied upon in affairs of life and death. Moreover, amidst the day-to-day details of scores of hospital cases, the physicians and nurses can ordinarily recall from actual memory few or none of the specific data entered; they themselves rely upon the record of their own action; hence, to call them to the stand would ordinarily add little or nothing to the information furnished by the record alone. The occasional errors and omissions, occurring in the routine work of a large staff, are no more an obstacle to the general trustworthiness of such records than are the errors of witnesses on the stand. And the power of the court to summon for examination the members of the recording staff is a sufficient corrective, where it seems to be needed and a bona fide dispute exists.”
6 J. Wigmore, Evidence, Section 1707 at 51-52 (Chadbourn rev.1979).

Second, the fact sought to be established by the medical report here — that the victim sustained vaginal trauma — was “essentially documentary”. Griggs, supra; Woodward, supra. That is, cross examination of the physician would not have cast doubt upon the clinical observations or exposed the diagnosis to divergent views. State v. Olson, supra. The controverted fact in this case was not that the victim sustained an injury but that the defendant caused the injury.

While we acknowledge that a written diagnosis of “recent vaginal trauma” differs from other documentary evidence such as a vehicle certificate of title, McCrary, supra, a television sales registration, Neal, supra, or a tax stamp, Griggs, supra, the difference is one of degree, rather than kind. That is, even the diagnosis “recent vaginal trauma” stems from routine clinical observation of a patient and does not appear to be subject to variant opinions. There is no contention here that the physician’s finding was erroneous or that other medical experts would have disagreed with the diagnosis. In sum, we do not believe that cross examination of the attending physician would have shaken the foundation for the hospital record evidence or would have undermined its reliability.

Third, while the victim’s medical record was probative of a material element of the offense, it was not the “sole evidence” used to prove sexual contact, Lowery v. State, 55 Ala.App. at 520, 317 So.2d 365, and it was cumulative to the testimony of the victim herself. Wiley, 389 So.2d at 609. See also McCrary, supra (certificate of title showing vehicle identification number cumulative to testimony of owner of stolen car).

Fourth, the hospital record did not in any way tie the defendant to the crime. Wiley, 389 So.2d at 609. The victim’s account of her injuries had been deleted from the hospital report at the defendant’s request and the record included no other link to the accused.

The final criterion weighed against the defendant’s right to confront adverse witnesses is the single factor in his favor. There is no provision for taking the deposition of an in-state physician in a criminal case unless he is connected with a State mental hospital. Seay v. State, 390 So.2d at 14; Alabama Code Section 22-50-22 (1975). Compare Alabama Code Section 12-21-260 (1975) (depositions in a criminal case) with Proposed Rule 17, A.R.Crim.P. (Advisory Comm. Draft 1977) (deposition to preserve testimony).

Although the defendant was not entitled to any alternative method of questioning the physician who examined the victim, the defendant has not demonstrated that any harm resulted from this denial. In view of Wigmore’s observations about modern hospital record-keeping practices, Wigmore, Evidence Section 1707, supra, it is likely that the examining physician “would be unable to recall any independent recollection of his particular entry other than it was in his handwriting and was true.” Rupp v. Travelers Indemnity Co., 17 Wis.2d 16, 22, 115 N.W.2d 612, 616 (1962).

Moreover, as we have pointed out, the fact that the victim suffered an injury is undisputed. At trial, the defendant made no showing of what he expected to elicit by cross examining the emergency room doctor. Balancing all five criteria against the defendant’s right to confront and cross examine the witnesses against him, it is our judgment that the hospital record here had such “indicia of reliability” that, absent any stated ground for believing it to be subject to impeachment, it satisfied the confrontation clause.

II

The defendant also contends that the trial court abused its discretion by not granting a continuance to secure the presence of the physician who examined the victim.

Once defense counsel learned from the assistant district attorney that the State did not intend to call the doctor to testify, he attempted to contact the physician and had a subpoena issued for him. When the subpoena was returned “not found” on the day before trial, counsel ascertained that the doctor was attending a medical convention in Mexico. The following day, the date set for trial, he moved for a continuance of the case, setting forth his attempts to secure the presence of the witness in an affidavit.

While we do not question the diligence of counsel’s efforts to have the physician present to testify at trial, we do not believe that he carried the heavy burden of showing that the testimony of the witness was material, necessary and non-cumulative. See Weaver v. State, 401 So.2d 344 (Ala.Cr.App.1981), and authorities cited therein. Thus, we cannot say that the defendant has shown the necessary and required “positive demonstration of abuse of judicial discretion.” Beauregard v. State, 372 So.2d 37, 43 (Ala.Cr.App.), cert. denied, 372 So.2d 44 (Ala.1979).

Ill

On direct examination of one of the victim’s schoolteachers, defense counsel inquired whether the witness knew the victim’s reputation at school for truth and veracity. The witness responded, “Only when she is with me. Sometimes she tells the truth and sometimes she does not.”

Then, on cross examination by the State, the following occurred:

“Q. Ma’am, you said that sometimes you believe (the victim) and sometimes you don’t. Is that from your experience being around (the victim)?
“A. That’s true.
“Q. Okay. Ma’am, would you believe her if she told you she was sexually molested by a man?
“A. I would ask for further details on that. I would not like to speculate on that at all.
“Q. Okay, ma’am, let’s assume she told you she had been sexually assaulted by a man and it was further related to you that she had been to a doctor and this doctor had examined her and found she had trauma. She had injured her vagina.
“MR. SHEEHAN (Defense Counsel): Your Honor, we would object. I believe this is a matter for the Jury’s province and not for Cross Examination. It’s the ultimate fact in this case.
“THE COURT: I believe the door has been opened. What this witness would believe or would not believe about the victim. The door having been opened, both parties may walk through with equal rights.
“Q. Ma’am, would you believe that after an examination having been conducted of her and found that her vagina was injured?
“A. I would have to believe it.”

If the ruling of the trial court is correct for any reason, it will not be reversed because the court assigned the wrong reason for its action. Lewis v. State, 399 So.2d 907 (Ala.Cr.App.1981). Here, it is clear that defense counsel’s question called for evidence of the victim’s reputation, yet the witness answered with her personal opinion of the victim’s truthfulness. The answer, however, does not call into play the doctrine of curative admissibility or “open the door” to other inadmissible evidence.

“It often occurs that a party asks a perfectly proper question but his witness gives an irresponsive answer containing illegal or inadmissible matter. Such an occurrence does not authorize the opponent to rebut the answer under the auspices of the doctrine of curative admissibility.” McElroy, Section 14.01.

The defendant’s objection was properly overruled because the trial court has the discretion to allow a witness who has impeached another’s credibility to be asked on cross examination whether he would believe the impeached witness if his testimony was corroborated by other evidence. McElroy, Section 140.01(6). Thus, there was no error in asking whether the schoolteacher would believe the victim if the victim’s complaint had been supported by a medical report.

Defense counsel also called a second teacher and questioned her about the reputation of the victim for truthfulness. As had the first teacher, this witness also gave a personal opinion of the child’s veracity and was later asked on cross examination whether she would believe the victim if it were established that a “doctor examined her within a few hours (or within a couple of hours) and his diagnosis was that she suffered from recent vaginal trauma.” (Emphasis added).

The defendant objected on the basis that the question had misstated the facts, apparently a reference to the above-emphasized portion of the question. Defendant contends that because the alleged sexual contact occurred near noon and the child was not examined by a physician until early evening, sometime between 5:45 P.M. and 7:45 P.M., the hypothetical question was not based on the facts in evidence.

In our judgment, “a few hours” or “a couple of hours” did not substantially misstate the facts underlying the hypothetical question. The jury had before it the victim’s testimony regarding the time of the incident in question and also the hospital record stating the time the victim was examined by a physician. The trial court’s ruling here did not “injuriously affect substantial rights” of the defendant. A.R.A.P. 45.

IV

At the sentencing hearing, the State introduced certified copies of three documents purporting to be judgment entries of the defendant’s three prior felony convictions. One of the documents, denominated “Sentence of Court” is not a judgment entry, see Summerhill v. State, 420 So.2d 804 (Ala.Cr.App.1982), and does not affirmatively show that the defendant was represented by an attorney or waived this right. Therefore, it cannot be used to enhance punishment under the habitual offender act. Watson v. State, 392 So.2d 1274, 1279 (Ala.Cr.App.1980), cert, denied, 392 So.2d 1280 (Ala.1981).

The admission of this conviction was not harmless error. Merely because the defendant could have been sentenced to fifteen years regardless of whether he had two or three prior convictions does not mean that he would have been if the trial judge had not considered the third conviction. Thomas v. State, 435 So.2d 1319 (Ala.Cr.App.1981), reversed, 435 So.2d 1324 (Ala.1982). Consequently, this cause must be remanded for proper sentencing.

AFFIRMED;

REMANDED FOR PROPER SENTENCING.

All Judges concur.

      . In pertinent part, Alabama Code Section 12-21-5 states:
      “When the original would be admissible in any case or proceeding in a court in the state, a certified copy of the hospital records ... when certified and affirmed by the custodian of said hospital records as provided in section 12-21-7, shall be admissible in evidence, without further proof in any court in the state where admissible, if and when said hospital records were made and kept in the usual and regular course of business of said hospital and it was in the regular course of business of said hospital to make and keep said records and that said records were made at the time of such acts, transactions, occurrences or events therein referred to occurred or arose or were made, or within a reasonable time thereafter.” (emphasis added)
      These requirements are virtually identical to those of the Business Records Act of Section 12-21-43 which in pertinent part states:
      "Any writing or record, ... made as a memorandum or record of any act, transaction, occurrence or event, shall be admissible in evidence in proof of said act, transaction or event if it was made in the regular course of any business and it was the regular course of the business to make such memorandum or record at the time of such act, transaction, occurrence or event, or within a reasonable time thereafter. All other circumstances of the making of such writing or record, including lack of personal knowledge by the entrant or maker, may be shown to affect its weight, but they shall not affect its admissibility.”


author: BARRON, Judge. DeCARLO, Judge,

text:
    Kenneth WIGLEY v. STATE.
    8 Div. 685.
    Court of Criminal Appeals of Alabama.
    Nov. 23, 1982.
    Rehearing Denied Dec. 28, 1982.
    Certiorari Denied March 4, 1983 Alabama Supreme Court 82-336.
    Charles B. Langham, Decatur, for appellant.
    Charles A. Graddick, Atty. Gen., and Bill-ington M. Garrett, Asst. Atty. Gen., for appellee.
   BARRON, Judge.

Kenneth Wigley was indicted and convicted in the Morgan County Circuit Court for violation of § 13A-ll-72(a), Ala.Code 1975, for having a pistol in his possession or control after having been convicted of committing or attempting to commit a crime of violence. He was sentenced to 20 years under the Habitual Felony Offender Act. Hence this appeal.

I

Appellant contends that one of his two companions had pleaded guilty to possession of the pistol which the State contends was possessed by appellant and that such action therefore exculpated appellant. Appellant’s contention is without merit.

The issue of possession or control, either active or constructive, of a pistol by appellant was a question of fact for the jury to resolve, and the evidence was in conflict. Appellant testified that he did not have the pistol and that he had no knowledge of its being in the truck. The law enforcement officer testified that the pistol was found under appellant’s leg, and that appellant claimed ownership of the gun at the scene. The evidence was sufficient to sustain the jury’s finding.

The trial court’s denial of appellant’s motion for a new trial was proper.

II

Appellant urges that he was erroneously brought within the purview of the Habitual Felony Offenders Act for sentencing.

The charging portion of the indictment provides that:

“Kenneth Wigley, whose name is to the Grand Jury otherwise unknown, did own a pistol, or have one in his possession or under his control, theretofore having been convicted in this state or elsewhere of committing a crime of violence, to-wit: on August 31, 1970, the said Kenneth Wigley plead guilty to the offense of Burglary in the Second Degree in the Circuit Court of Cullman County, Alabama, in violation of Section 13A-11-72 of the Code of Alabama.”

The statute under which appellant was tried and convicted, § 13A-ll-72(a), Ala. Code 1975, provides:

“No person who has been convicted in this state or elsewhere of committing or attempting to commit a crime of violence shall own a pistol or have one in his possession or under his control.”

The punishment for violation of the statute is imprisonment for not more than five years. Ala.Code 1975, § 13A-ll-84(a).

The offense is a Class C felony. See Nunnery v. State, 410 So.2d 444 (Ala.Cr.App.1981).

The Habitual Felony Offenders Act, § 13A-5-9, Ala.Code 1975, provides in part as follows:

“(a) In all cases when it is shown that a criminal defendant has been previously convicted of any felony and after such conviction has committed another felony, he must be punished as follows:
“(1) On conviction of a Class C felony, he must be punished for a Class B felony

The punishment range for a Class B felony is 2 to 20 years. Ala.Code 1975, § 13A-5-6(a)(2).

Appellant had one prior conviction, burglary in the second degree on August 18, 1970, in the Cullman County Circuit Court. Burglary is one of the enumerated crimes of violence applicable to the pistol violation. Ala.Code 1975, § 13A-11-70.

Appellant’s 1970 burglary conviction was utilized by the State to bring appellant within the provisions of the current pistol possession charge, and was also used by the State to activate the Habitual Felony Offenders Act. Appellant contends this was error.

The question presented amounts to this:

May the previous felony conviction, which is relied on as a necessary element and ingredient in order to constitute the pistol possession offense outlined in § 13A-ll-72(a), Ala.Code 1975, also be used to invoke the Habitual Felony Offenders Act?

We think the question must be answered in the negative.

Possession or control of a pistol without a permit, as is the case here, is a misdemeanor only (§ 13A-11-50, Ala.Code 1975), but is elevated to felony status by addition of the element or ingredient of having previously “been convicted in this state or elsewhere of committing or attempting to commit a crime of violence.”

The pistol possession offense takes into account a prior crime of violence, which is a requisite element and ingredient of the offense. Presumably, the legislature considered such in (1) making the pistol possession under those circumstances a felony, and (2) establishing a maximum punishment of five years’ imprisonment.

In instances when there is only one prior conviction, and that conviction is a necessary element or ingredient of the currently charged offense, such prior conviction is not available and may not again be used to enhance the punishment under the Habitual Felony Offenders Act. To hold otherwise would nullify the punishment provision of the currently charged offense as contained in § 13A-ll-84(a), Ala. Code 1975, because the prior conviction would always activate the Habitual Felony Offenders Act; we do not believe that the legislature intended that result.

For the reasons stated, the judgment of conviction of appellant is affirmed, and the cause is remanded for sentencing in accordance with the foregoing opinion.

AFFIRMED; CAUSE REMANDED WITH DIRECTIONS.

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

DeCARLO, J., dissents.

DeCARLO, Judge,

dissents.

A charge of escape in the first degree requires pleading and proof that the person charged was a convicted felon. § 13A-10-31, Code of Alabama (1975), and this conviction can be used for enhancement purposes. See Webster v. State, 403 So.2d 299 (Ala.Cr.App.), cert. denied, 403 So.2d 303 (Ala.1981). It would seem to follow that a conviction for possession of a weapon after a conviction of a crime of violence could be used for enhancing punishment even though the felony proved as an element of the offense was the only felony considered.

Therefore, the fact that it is necessary to plead and prove that the accused in the present case was a convicted felon should not preclude the right to also prove the prior felony conviction for the additional purpose of adjudicating the accused an habitual offender.

We must not lose sight of the fact that our legislature has deemed escape in the first degree and possession of a firearm after conviction of a crime of violence to be separate offenses in and of themselves even though a prior felony conviction is a necessary element of each. This was done to protect the general public from a particular class of individuals, that being convicted felons, by prohibiting that class from engaging in certain conduct after conviction of a felony.

I respectfully dissent.