author: MORIAL, Judge.

text:
    Ranton BROUILLETTE v. BROUILLETTE BROTHERS CONSTRUCTION CO., INCORPORATED. Bruman BROUILLETTE v. Vincent BROUILLETTE and Ranton Brouillette (three cases).
    No. 7981.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 13, 1977.
    Cabibi & Cabibi, Charles E. Cabibi, New Orleans, for defendant-appellant.
    Oliver S. Livaudais, Jr., Charles H. Livau-dais, Robert J. Klees, Chalmette, for defendant.
    Before BOUTALL, MORIAL and BEER, JJ.
   MORIAL, Judge.

This is an appeal from a judgment ordering a partition by licitation of certain real property located in St. Bernard Parish. The property consists of several business properties and about one hundred fifty lots in Creedmoor Subdivision owned in indivi-sión by the Brouillette brothers, Ranton, Vincent and Bruman. This matter arises out of several legal proceedings involving the Brouillette properties and businesses which have been consolidated for adjudication.

The partition suit was originally filed in August 1969. In December 1972 the trial judge appointed Raymond McDougall, a notary, to effect a partition in kind of the property where possible, or by licitation. On October 24, 1974 McDougall brought a rule stating that he was unable to amicably partition the property between the parties and suggested that all the properties be partitioned by licitation.

After several attempts to reach a settlement and a hearing, the trial judge ordered the notary to proceed with a partition by licitation of all the properties relying on LSA-R.C.C. Articles 1290, 1336, 1339 and LSA-C.C.P. Article 4607.

Ranton Brouillette appeals praying that the property be partitioned in kind. We agree.

R.C.C. Article 1336 provides:

“The judge who decides on a suit for a partition and on the mode of effecting it, has a right to regulate this mode as may appear to him most convenient and most advantageous for the general interest of the co-heirs, in conformity, nevertheless, with the following provisions.”

C.C.P. Article 4606 provides:

“Except as otherwise provided by law, or unless the property is indivisible by nature or cannot conveniently be divided, the court shall order the partition to be made in kind.”

R.C.C. Art. 1339 provides:

“When the property is indivisible by its nature, or when it can not be conveniently divided, the judge shall order, at the instance of any one of the heirs, on proof of either of these facts, that it be sold at public auction, after the time of notice and advertisements prescribed by law, and in the manner hereinafter prescribed.”

R.C.C. Art. 1340 provides:

“It is said that a thing can not be conveniently divided, when a diminution of its value, or loss or inconvenience of one of the owners, would be the consequence of dividing it.”

These articles have been jurispru-dentially interpreted to mean that a judge must order a partition in kind unless it be proved that the property is indivisible by nature or that loss or inconvenience would be the consequence of dividing it in that manner. Babineaux v. Babineaux, 237 La. 806, 112 So.2d 620 (1959), DeLee v. DeLee, 328 So.2d 763 (La.App. 1 Cir. 1976). The burden of proving these facts is, therefore, on the party seeking liquidation by judicial sale. National American Bank of New Orleans v. Cleveland, 273 So.2d 848 (La.App. 4 Cir. 1973).

Mr. McDougall’s testimony consisted of a single statement that he had been unable to fairly divide the property and that the parties were unable to reach an agreement on the division of said property. He offered no evidence to support a conclusion that a partition in kind would result in the loss in value of the property or that it would be to the disadvantage of any of the parties.

Ranton Brouillette testified that the bulk of the property consisted of vacant lots which were similar in value. He stated that he had drawn up a specific plan for dividing the lots among the three parties. Apparently the defendants would not agree to this plan.

Vincent Brouillette also agreed that the property should be partitioned in kind but proposed that numbers be assigned to the lots and then placed in a container and drawn to effect the division. He suggested using the same plan with regard to the remaining property.

Having reviewed the record, we find that the trial judge erred in ordering a partition by licitation. The court may not rely on the mere conclusion of the notary that the property is insusceptible of division in kind. McDaniel v. Henry, 159 So. 629 (La.App. 1 Cir. 1935). Mr. McDougall failed to present evidence to show that the property is indivisible by nature or that loss or inconvenience to one of the owners would result. The testimony of the co-owners clearly establishes that they desire a partition in kind of their property.

In the absence of evidence showing the property to be insusceptible of a partition in kind, the judgment of the district court is reversed and set aside and the case is remanded in order to effect a partition in kind in accordance with LSA-R.C.C. Article 1347 et seq.

For the foregoing reasons the judgment of the district court is reversed and set aside and the case is remanded.

REVERSED, SET ASIDE AND REMANDED.


source: Caselaw Access Project

author: GULOTTA, Judge.

license: Public Domain

text:
    Clara CAGER v. SOUTHERN LIFE AND HEALTH INSURANCE COMPANY.
    No. 7999.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 13, 1977.
    Orlando G. Bendana, New Orleans, for plaintiff-appellant.
    Goldman & Levin, Stanley H. Levin, New Orleans, for defendant-appellee.
    Before GULOTTA, STOULIG and SCHOTT, JJ.
   GULOTTA, Judge.

Plaintiff, a named beneficiary, appeals from the dismissal of her suit for death benefits under a life and accidental death insurance policy covering a named insured who died as a result of gunshot wounds.

The policy provides benefits for death by accidental means when the named insured

“. . . has sustained accidental drowning or bodily injuries which are effected directly and independently of all other causes through external, violent and accidental means . . . .”

The pertinent exclusion contained in the policy is as follows:

“This policy does not cover death . resulting directly or indirectly from . . .
(5) the commission of, or attempt to commit, an assault or felony; $ * * i>

The facts are that on June 15, 1974, Herman Solomon, the insured, became involved in a fight with Gloria Fortenberry in a residence where the two had lived together for approximately six months. After Gloria had been struck and choked by Herman, she obtained a hand gun and shot and killed him.

According to plaintiff’s version of the incident, the combatants were separated by Gloria’s mother, Bessie Young, subsequent to the hitting and choking incident. After sitting down for a moment, the unarmed decedent arose and walked toward Gloria who, having obtained a pistol from another room, shot him. Defendant’s version, on the other hand, is that subsequent to the physical parting of the combatants the decedent jumped up and “charged” at Gloria in a rage and she fired the gun to protect herself from injury threatened by his attack.

Plaintiff’s thrust, on appeal, is two-fold. The first is that the insured’s death was “accidental”, and the second is that the insurer has failed to meet its burden of showing by a preponderance of the evidence the applicability of the exclusionary provision of the policy.

Assuming, but not holding, that Herman’s death was accidental, we nevertheless conclude that the exclusionary provision of the policy is applicable.

We are in agreement with plaintiff’s contention that once accidental death is established the insurer has the burden of showing by a preponderance of the evidence that the exclusionary clause is applicable. See Willis v. Willis, 287 So.2d 642 (La.App. 3d Cir. 1973); Chambers v. First National Life Insurance Company of New Orleans, 253 So.2d 636 (La.App. 4th Cir. 1971); Cummings v. Universal Life Insurance Company, 286 So.2d 412 (La.App. 4th Cir. 1973).

While no written reasons were assigned by the trial judge, implicit in the court’s dismissal of the suit is the factual conclusion based on a credibility determination that decedent was attempting to commit an assault on Gloria Fortenberry at the time he was shot. The record supports this conclusion.

Undisputed is the fact that prior to the shooting, Herman hit and choked Gloria. Undisputed also is Gloria’s testimony that she feared for her safety. She testified that Herman “started charging” at her and she shot him because she was afraid. Though she admitted that he could have been coming forward to apologize, she testified that the “look of his face” had not led her to believe that he was attempting reconciliation as he advanced. Bessie Young, an eye witness to the incident, testified that once the fight had been stopped, Gloria went toward another room. She stated that Herman had sat down for a minute, then had arisen and started toward Gloria in another rage. The witness stated, “He made a big leap and started right back toward her again.” At another point in her testimony, she stated, “. . . he just jump [sic] and all at once started into her again.”

In Willis v. Willis, supra, relied on by plaintiff, the policy excluded coverage for death resulting from “participation in the committing of a felony”. In the cited case, the insurer contended that the insured, at the time of his death, was committing the felony of attempted murder. The court, in allowing recovery, concluded in Willis that the insurer had failed to show the decedent at the time of his death had a specific intent to kill or inflict great bodily harm on another and that proof was lacking that the decedent was committing a “felony”. The exclusion in the policy in our case applies to death resulting from “the commission of, or attempt to commit, an assault or felony” (emphasis ours). We venture to say that if the policy exclusionary provision in the Wil lis case had contained the same phraseology as the instant case, i. e., attempt to commit assault or felony, the Willis court would have reached a different result.

Having concluded defendant successfully carried the burden of showing that the exclusionary provision is applicable, we affirm.

AFFIRMED.


author: REDMANN, Judge.

text:
    STATE of Louisiana v. Ronald Anthony BOUVIER.
    No. 8009.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 13, 1977.
    See also, La.App., 336 So.2d 906.
    Theresa Bouvier Hopper unrepresented.
    Darleen M. Jacobs, New Orleans, for defendant-appellant.
    Before SAMUEL, REDMANN and LEM-MON, JJ.
   REDMANN, Judge.

This proceeding in the Juvenile Court for Jefferson Parish began as a criminal neglect of family case against appellant father. Thereafter, on a rule to show cause why the father’s rights of visitation of his children should not be reduced, the Juvenile Court rendered a judgment “that the visitation rights will be reduced and that the father of the children may visit with the children between the hours of 10 a. m. and 6 p. m.” each Sunday, without the presence of the maternal grandmother and, if the children wish, at a place other than their residence.

The father appeals, first arguing that the court was without jurisdiction to render such a judgment. We agree.

Our Jurisdiction

We first question our own jurisdiction. La.Const. art. 5 § 10(A)(2) gives us jurisdiction of “matters appealed from family and juvenile courts, except criminal prosecutions of persons other than juveniles.” We thus do not have jurisdiction to review the criminal prosecution which initiated this entire litigation. See State v. Barrios, 1969, 254 La. 93, 222 So.2d 869. Were the criminal penalty imposed by the court some form of grant or modification of custody, we would not have jurisdiction to review the conviction or the appropriateness of the penalty. Although we need not now decide the question, we note that State v. Alexander, La.App. 4 Cir. 1975, 320 So. 610, writ refused, La., 323 So.2d 807 (holding the Juvenile Court without power to grant children half of their father’s personal injury claim), ignored the question of our own jurisdiction.

However, the criminal neglect charge resulted in the defendant father being “found not guilty — deft, [defendant?] submits to jurisdiction of court. By stipulation of all parties child support is set at $80.00 every two weeks commencing 12-18-72 — visitation set at every Sunday between 9 A.M. and 8 P.M.”

Thus this is not an appeal from a criminal prosecution, but from a rule concerning child visitation privileges. This matter is therefore not within the exception from our appellate jurisdiction.

Juvenile Court’s Jurisdiction

The Juvenile Court has no jurisdiction to adjudicate custody of children (other than those neglected or delinquent, La.R.S. 13:1570, abused, R.S. 13:1600, or in need of supervision, R.S. 13:1580). Nor can the consent of the parties confer on the Juvenile Court jurisdiction which the law does not give it; see Plauche v. Albert, 1949, 215 La. 776, 41 So.2d 677. A judgment granting visitation is one involving custody; Downey v. Downey, 1935, 183 La. 424, 164 So. 160. The Juvenile Court does not have jurisdiction to adjudicate visitation rights between parents. Parents with a custody or visitation dispute must resolve it in the district court (or family court where provided).

The judgment purporting to fix visitation is annulled for lack of jurisdiction at appellant’s cost.


author: BEER, Judge.

text:
    TEACHERS’ RETIREMENT SYSTEM OF LOUISIANA v. Lillian Essex MORAN et al.
    No. 8011.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 13, 1977.

      Warren, Gomes & Guidry, Freddie B. Warren, Jr., George A. Guidry, New Orleans, for defendants-appellants.
    Roos & Roos, Sidney G. Roos, New Orleans, for plaintiff-appellee.
    Before BOUTALL, MORIAL and BEER, JJ.
   BEER, Judge.

Representing the Teachers’ Retirement System of Louisiana (hereafter, “the System”), the Attorney General filed this con-cursus proceeding naming Lillian Essex Moran, Clay Smith Essex and the estate of Harold A. Essex and its Administrator, Robert W. Essex, III, as defendants. Mrs. Moran and Clay Essex had claimed to be the lawful recipients of the retirement fund of Harold A. Essex (hereafter, “decedent”) on deposit with the System (i.e. $8,969.46) and now, as a result of the concursus, deposited in the Registry of the Civil District Court. Robert W. Essex, III responded to the concursus seeking judgment in favor of the estate which would result in a distribution of the funds to certain alleged legal heirs of the decedent. Mrs. Moran and Clay Essex reaverred those contentions which had precipitated the need for the concursus.

The trial court decreed “ . that the funds on deposit in the Registry of the Court be delivered to Robert W. Essex, III as administrator of the Succession of Harold A. Essex . ..” Lillian Essex Moran and Clay Smith Essex suspensively appealed. Robert W. Essex, III did not appeal nor has he filed an Answer to Appeal.

The facts are not in dispute: On October 11, 1954, the decedent became a member of the New Orleans Teachers’ Retirement Fund and, concurrently, designated his mother, Evelyn West Essex, as beneficiary to receive his accumulated contributions in the retirement system in the event of his death. However, on September 16, 1956, Evelyn West Essex died.

On December 29,1965, decedent executed a form which appears to us to have been either prepared by (or, at least, in accordance with regulations of) the New Orleans Teachers’ Retirement Fund, naming Lillian Essex Moran and Clay Smith Essex as co-beneficiaries. That form, which is in evidence, bears the signature of the decedent and two witnesses and is properly acknowledged before and signed and sealed by a notary public. There is no contention that the document does not bear the signatures of those who are purported to have signed it. The authenticity of the document is not in dispute, nor is there, on the other hand, any dispute about the fact that the document, however regular it is, was never filed with the retirement system by the decedent who remained, until his death, a member thereof.

Lillian Essex Moran testified that she discovered the authenticated document after the death of Harold Essex and that she subsequently filed it with the retirement system. Prior to her discovery of the document, she had no knowledge of its existence, nor was she aware of any indication that her brother intended to designate her as a beneficiary.

The sole issue before us is whether or not the properly executed change-of-beneficiary document, which had not been filed by decedent with the Board of Trustees for the Orleans Parish Teachers’ Retirement System prior to his death, now obliges the System to deliver the retirement fund of the decedent to the so named beneficiaries.

The purported change-of-beneficiary form was executed on December 29, 1965, and, accordingly, we look to the statutory law regulating the Orleans Parish Teachers’ Retirement System (LSA-R.S. 17:771 et seq., now repealed by Acts 1975, 1st Ex. Sess., No. 3, Sec. 3, eff. June 1, 1975) and, specifically, Sec. 857, which provides:

“Upon receipt by the Board of proper proof of the death of a participant in active service, his accumulated contributions shall be paid to the legal representative of his estate, or to any person he shall have designated in writing and have duly executed and filed with the Board of Trustees. . . . ” (Emphasis ours.)

In his orally assigned reasons for judgment, the trial judge refers to Sec. 857 and concludes:

“But the Court interprets the will of the Legislature to require that the employee designate a beneficiary in writing and file that designation with the Board. The Court would read the Statute to require that as an essential step to designating a person beneficiary that it be filed by the employee and not by the beneficiaries after his death. The Court would also feel with somewhat less conviction that in context the word duly executed and filed, the word duly connotes timely as well as in proper form and for a man to designate beneficiaries to retain that designation with his papers and not file it with the Board for some 7 or 8 years does not satisfy the statutory requirement of a proper designation. So the Court would declare the funds available to the estate . . . .” (Emphasis ours.)

We agree with the trial court’s determination that the written designation had to be both “executed” and “filed” by the decedent. Had he, at any time prior to the death, filed the document which is in evidence, we are of the view that the requirements covering the change of beneficiary would, then and there, have been met. But, upon decedent’s death, his ability to fulfill the requirements of execution and filing no longer existed and the applicable provisions could no longer be met, and, since the only designated beneficiary had predeceased the decedent, it became necessary to resort to those provisions which cover situations where the decedent has not named a beneficiary. Accordingly, we affirm at appellants’ cost.

AFFIRMED.

      . Robert Essex, III seeks, by brief, a distribution of the funds on deposit to certain persons alleged to be legal heirs. We are, however, without jurisdiction to entertain his prayer since he has not appealed nor answered the appeal from the judgment which did not address his claim for a distribution. LSA-C.C.P. Art. 2133 (as amended). Moreover, even if we were to entertain his prayer ex proprio motu (LSA-C.C.P. Art. 2164), there is insufficient evidence for us to adjudicate that issue.

      . The Teachers’ Retirement System of Louisiana was created by Acts 1936, No. 83, Sec. 2 (LSA-R.S. 17:572). The legislature, by Act 3 of 1971, provided for the merger and consolidation of the Orleans Parish Teachers’ Retirement System with the Teachers’ Retirement System of Louisiana, effective July 1, 1971, converting Orleans System members into State System members, entitling them to the benefits as provided for under the State System. See Groves v. Board of Trustees of Teachers’ Retirement System, 324 So.2d 587 (La.App. 1st Cir., 1975) writs ref. La., 326 So.2d 378, 380.

      . Thus, the only statutory provisions which are material to this matter are LSA-R.S. 17:771 et seq.


author: BOUTALL, Judge.

text:
    Robb H. McCONNELL v. Mr. and Mrs. Jesse G. BABCOCK.
    No. 8012.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 13, 1977.
    Shushan, Meyer, Jackson, McPherson & Herzog, Robert P. Chatelain, New Orleans, for Robb H. McConnell, plaintiff-appellant.
    Joseph S. Russo, Jefferson, for Mr. and Mrs. Jesse G. Babcock, defendants-appel-lees.
    Before BOUTALL, MORIAL and BEER, JJ.
   BOUTALL, Judge.

Plaintiff-appellant Robb H. McConnell brought this action against the defendants, Mr. and Mrs. Jesse G. Babcock for return of his deposit and additional damages for defendants’ alleged breach of a purchase agreement executed between the two parties. Defendants filed a reconventional demand seeking recovery of the amount deposited for plaintiff’s alleged breach of that same purchase agreement. From a judgment dismissing both plaintiff’s demand and defendants’ reconventional demand, the plaintiff has appealed.

The parties entered into a purchase agreement on February 5, 1975. That purchase agreement required, among other things, that plaintiff make a deposit equal to 10% of the purchase price and that the act of sale was to take place before lender’s notary on or before March 1, 1975. An act of sale was scheduled for February 20,1975, but on that date the parties discovered that a notice of lis pendens had been recorded against the subject property and the act of sale for that date was cancelled. Defendant did not appear at the February 20th act of sale. The act of sale was tentatively rescheduled for February 28, 1975, pending removal of the lis pendens notice. On February 28, 1975 no act of sale was prepared nor did one occur, but defendant Jesse Bab-cock initiated an agreement with the plaintiff to extend the purchase agreement an additional 30 days to April 1, 1975 in order that title curative work could be performed by the vendor. On March 15th the agreement to purchase was extended to April 15, 1975.

Unknown to all parties involved in the purchase, the lis pendens was removed on April 4, 1975. On April 15, the real estate agent discovered that the lis pendens had been removed and notified the vendor, purchaser and lender’s notary in order that the sale could be closed on that day. The lender’s notary had not scheduled the act of sale and was not prepared to close the sale on that date, April 15, because of the insufficient time to prepare certificates.

The following day the real estate agent, with the approval of the plaintiff, mailed to the defendants an agreement to extend the original purchase agreement for another 7 days in order that the notary could prepare and schedule an act of sale. The defendants refused to extend the purchase agreement and subsequently accepted another purchase offer.

The plaintiff filed a suit for recovery of deposit, attorney’s fees and damages, as provided in the purchase agreement as penalty for either party’s breach of the agreement. Plaintiff-purchaser alleges that he was willing to take title, with or without the lis pendens, at all times and especially so on February 20, 1975 and April 15, 1975. Plaintiff-purchaser alleges that the defendant was put in default by defendants’ breach of the agreement, that is, defendants’ failure to take any steps to remove the lis pendens and defendants’ failure to go through with the act of sale on April 15. The trial judge dealt with the issue of the seller’s default in his Reasons for Judgment when he said “this agreement to purchase and sell was confected on February 5, 1975 and there was an abortive attempt to have the sale on February 20, 1975. The attempt failed and at which time there was some element of default apparently made as against the seller. Be all that as it may, the default was tacitly waived by the extension agreement granted at the request of the seller, dated March 1, 1975, and a subsequent extension agreement dated March 15, 1975, extending through April 15, 1975.”

We agree that the default was tacitly waived by the extension agreements of March 1, and 15, 1975.

The trial judge, in his reasons, also found that a time span of one week existed between the recordation of the cancelling of the notice of lis pendens and the termination date of the purchase agreement, April 15, 1975, and that no action was taken by either party to complete the sale. It is uncontroverted that the lis pendens was removed on April 4, 1975 and that such cancellation was recorded on April 8, 1975. We agree with plaintiff-appellant’s contention that it was the duty of the seller to remove the lis pendens. The fact is that the lis pendens notice was removed, whether through the efforts of the defendant or not. Regardless of who caused the removal, the fact remains that the lis pendens defect in the title was cured, and the defendant vendor had filled his responsibility.

We note however, that the act of sale was to be passed before the lender’s notary, not the vendors’ notary, and cannot find any duty on the part of the defendant to do any more than to remove the lis pendens and pass title when he was demanded to do so within the agreement period. The notary took no action during that last seven day period and did not schedule an act of sale prior to the expiration of the extension. Thus, we cannot find the vendor to have been in default for having failed to pass title when in fact there was never an opportunity for him to pass title during the extension period. The record clearly indicates that although the plaintiff was ready to perform at any time prior to and including April 15,1975, it was impossible for the vendor to be put in default because of the lender’s notary not being prepared to pass the act of sale when the removal of the lis pendens notice was received.

Had the agreement stipulated that the act of sale was to be passed before the vendor’s notary we could reach a different conclusion. Unfortunately for the plaintiff we do not have such a responsibility of the vendor in the case before us and we must conclude that the act of sale did not take place through the fault of either party, and that the agreement died by its own terms after April 15, 1975. Once the agreement expired neither party was obligated to the other.

For the foregoing reasons the judgment appealed is affirmed.

AFFIRMED.


author: BOUTALL, Judge. BEER, Judge,

text:
    Douglas R. HERNANDEZ, Jr., Individually and for the use and benefit of John Hernandez and Douglas Hernandez, III, as head and master of the marital community and Gale Hernandez, his wife v. Betty K. SHOWALTER et al.
    No. 8138.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 13, 1977.

      Sidney D. Torres, III and George N. Bis-chof, Jr., Chalmette, for Douglas R. Hernandez, Jr., et al., plain tiff s-appellees.
    Craig R. Nelson, of Hammett, Leake, Hammett, Hulse & Nelson, New Orleans, for Betty K. Showalter, William G. Showal-ter, and Government Employees Ins. Co., defendants-appellants.
    Before BOUTALL, MORIAL and BEER, JJ.
   BOUTALL, Judge.

Plaintiffs, Douglas Hernandez and his wife Gale Hernandez, filed suit for damages sustained in an auto accident with the defendant, Betty Showalter. From a judgment awarding damages to the plaintiffs, defendants have perfected this appeal.

Appellants raise the issues of excessive and unreasonable quantum of the awards and denial of due process of defendants’ rights to full and fair cross-examination of plaintiff’s expert physician.

On October 20, 1973, Douglas and Gale Hernandez were traveling in the family auto with their three children when the Hernandez vehicle was struck by the Show-alter vehicle. The Hernandez children were not injured, but the parents received personal injuries. The plaintiffs were treated with physiotherapy treatments for several months by Dr. Emile A. Bertucci, Jr., whose reports were stipulated into evidence.

Dr. Bertucci’s examination of Douglas Hernandez revealed tenderness and muscle spasms over the left Trapezius muscle, with some restriction of motion of the left shoulder. Mr. Hernandez was later examined on March 14, 1974 by an orthopedic surgeon, Dr. Bryon Unkauf, who diagnosed the injury to be a slight tear of the rotator cuff of the shoulder and aggravation of a preexisting congenital defect in his back. Dr. Un-kauf saw him on several other occasions both for his shoulder and for back complaints.

Dr. Bertucci made the following diagnoses of Gale Hernandez’s injuries resulting from the accident:

“(1) Strain of the PV muscles in the cervical area bilaterally.
(2) Contusion to the posterior aspect of the left elbow.
(3) Acute lumbosacral strain.
(4) Contusion to the anterior aspect of the right knee.
(5) Contusions and abrasions antereola-teral ligaments of this knee.”

The problem in the cervical area and the elbow resolved uneventfully. However, the pain in the low back and the left knee continued over a long course of treatment. The doctor concluded she would always have trouble with her knee.

Dr. Unkauf saw Gale Hernandez as a patient on approximately fifteen office visits, starting in March of 1974. He found minimum residuals of the other injuries, but found definite patellofemoral crepitation of the left knee. Dr. Unkauf testified that Mrs. Hernandez might have to undergo surgery to remove the left kneecap if it didn’t heal itself; that there was a 10% disability with pain of the left leg then, and there would be a 20% disability without pain if the kneecap is removed. Mrs. Hernandez continues to suffer pain in her knee at time of trial.

Dr. Irving Redler, defendant’s orthopedic specialist, examined Mrs. Hernandez on two occasions: December of 1973 and February of 1976. His examinations revealed no residual injuries, disability, or functional impairment. Further, he found no crepitation, although on second examination he noted Mrs. Hernandez’s range of motion to be limited to 60° in the left knee.

After trial on the merits, judgment was rendered awarding Douglas Hernandez special damages and the amount of $5,000.00 for pain and suffering. Gale Hernandez was awarded $8,000.00 for pain and suffering, and $5,000,00 for disability. Appellants seek reduction of those awards.

It is well settled in our law and jurisprudence that.the assessment of damages in the cases of offenses and quasi-offenses “much discretion must be left to the judge or jury”, and to modify the amount of an award of general damages, the appellate court must find that the trial judge or jury has abused the much discretion accorded by the codal provision. L.C.C. article 1934(3); Miller v. Thomas, 258 La. 285, 246 So.2d 16 (1971); Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1976).

Appellants bring our attention to other cases involving similar injuries to support their contention that the awards are excessive. Damage awards in other eases serve only as an aid in determining whether there has been an abuse of discretion in awarding damages and rivet no steel frame of uniformity. Miller v. Thomas, supra. Thus, we must view the appropriateness of the award in this case on the basis of its own facts. As the Supreme Court said in Coco v. Winston Industries, Inc., supra:

“Further, we believe that heretofore, courts of appeal have placed too much emphasis on their review of other reported cases, certainly, no two cases are ever fully alike. * * * ”

Based on the facts in this case, any reduction by us of the award granted the two plaintiffs would simply be a substitution of our opinion for that of the trial judge. We find no manifest error in the award, in view of the injuries shown to have been suffered and the wide discretion of the trial judge allowed in compensating such injuries.

Appellants also contend that the trial court erred in not allowing counsel the right to fully cross-examine plaintiff’s expert in the field of orthopedics, Dr. Unkauf. This situation came about when counsel sought to ask a question seeking a particular conclusion based on Dr. Unkauf’s finding of crepitation and Dr. Redler’s finding of no crepitation on a previous examination. The question posed was attempted to be in the nature of a hypothetical question stating, in summary, by virtue of the stated findings of Dr. Redler, and based upon Dr. Unkauf’s findings, “ * * * is it fair for this court to conclude that the condition you found in March of ’74 started due to some trauma or for some reason after December 19, 1973?” The Doctor answered that he dictated what he found in her knee and wasn’t concerned with what anyone else found. Counsel pressed for an answer, the court then stated that the witness had answered, and arguments and comments ensued.

As we see it, the question was improper as a hypothetical question, because it did not include all of the necessary facts known at that time. We especially refer to the findings of Dr. Bertucci who had been the treating physician, and who had made findings of crepitation and other difficulties with the knee. Secondly, the doctor was not asked a truly expert question, but the question, as quoted above in part, asks for the doctor to second-guess the court. This reference to the court in this question obviously brought on the exchange between counsel and the court in which the court announced that it was his function to make a determination of such a question, not the doctor’s, and the court pointed out that the proper issue was credibility of the findings of the two experts, because Dr. Redler on reexamination after Dr. Unkauf’s examination had made basically the same findings as his initial examination. Thus it was not simply a question as to whether crepitation had appeared from such other reason between examination of Dr. Redler and that of Dr. Unkauf, but whether there had been crepitation at all, because Dr. Redler found none after Dr. Unkauf’s examination.

The record does not reflect that the court prevented counsel from asking questions on cross-examination, but it reflects that the court simply told counsel to continue his questions. Counsel continued to cross examine the doctor on questions concerning crepitation and the condition of Mrs. Hernandez’ knee for a number of pages until Mr. Nelson announced “I have nothing further.” Opposing counsel similarly announced no further questions. At this point the court asked the doctor to give him an explanation “ * * * in language wherein I will understand and where no lawyer will have another shot at you, just you and I, * * * ”. The doctor then explained his definition of crepitation and his finding in relation to the patient. We cannot agree that this served to deprive counsel of the right of cross-examination. At this stage of Dr. Unkauf’s testimony both counsel had asked all of the questions to which they were entitled and had announced that they rested. The court’s questions simply went to material already fully covered by both parties, and we can see no valid reason why counsel should insist on another rehashing of the same subject that both had completely examined the doctor about. We further note that counsel made no objection to the questioning by the court, nor did he seek to ask additional questions. In any event, we agree with the trial judge that counsel had sufficient opportunity to ask all of the questions desired, and the examination of this witness was duly stopped. We find no basis for declaring that the actions of the trial judge constitute an abuse of the discretion accorded him in controlling the orderly process of the court.

For the reasons above stated, we affirm the judgment.

AFFIRMED.

BEER, Judge,

concurring.

Appellants attack the credibility of Dr. Byron Unkauf’s testimony and the trial court’s apparent reliance thereupon; while supporting the credibility of Dr. Irving Red-ler’s testimony and questioning the trial court’s apparent rejection of it.

I can ascribe no manifest error to the trial judge’s apparent acceptance of Un-kauf’s testimony and rejection of Redler’s. Nevertheless, upon reviewing the record, I am of the view that I would have done the opposite and, in so doing, would have awarded substantially lower judgments.

However, there is no justifiable basis for me to substitute my view for that of the trial judge, and I must concur in the majority’s affirmation.


text:
    Melchoir RODRIGUEZ, Jr. v. SECURITY INSURANCE GROUP.
    No. 8265.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 13, 1977.

      Leroy J. Falgout, Kenner, for plaintiff-appellant.
    Bienvenu, Foster, Ryan & O’Bannon, Robert N. Ryan, New Orleans, for defendant-appellee.
    Before BOUTALL, MORIAL and BEER, JJ.
   MORIAL, Judge.

Plaintiff appeals from a judgment dismissing his suit for total and permanent disability pursuant to the Louisiana Workmen’s Compensation Act. LSA-R.S. 23:1221 et seq. We affirm.

Plaintiff was injured on January 15, 1974 while employed as a carpenter by William R. Price Builders, Inc. An electric saw fell on his right foot lacerating the tendons of his second, third and fourth toes, lacerating and severing the arterial supply to his fifth toe, fracturing the second and third metatarsal bones and fracturing the phalanx of the fourth and fifth toes.

Plaintiff was taken to East Jefferson Hospital and treated by Dr. John Weilbacher who surgically repaired the tendons and amputated the fifth toe. Plaintiff was placed in a short-leg cast for about six weeks. Subsequent visits showed the wound to be healing well. Dr. Weilbacher recommended the amputation of the fourth toe, which had lost all of its functions and was a source of discomfort to plaintiff. The operation was scheduled but was later postponed by plaintiff.

Dr. Weilbacher instructed plaintiff that he could return to light duty on April 29, 1974. Plaintiff attempted to work but was unable to continue after a few hours of work a day.

The defendant compensation insurer, Security Insurance Group, admitted that a work-related accident had occurred but denied that it- resulted in the permanent and total disability of plaintiff. Defendant had paid plaintiff $2,665.00 in benefits for partial disability.

It is agreed by both parties that plaintiff suffers from a congenital deformity of both feet called pes cavus. A person having this condition has high arches which causes more weight than usual to be placed on the metatarsal bones of the foot. This condition results in the development of calluses in those areas.

Dr. Weilbacher, an orthopedic surgeon and treating physician testified that he again saw plaintiff in December 1974 six months after he had discharged him. He stated that plaintiff had continued to complain of pain primarily on the bottom of his foot with 80% to 90% of the pain concentrated in the callus areas. The examination showed plaintiff had developed calluses on both feet. The doctor explained that the pes cavus deformity of plaintiff’s feet was developmental and had not been caused by the accidental trauma. He believed that the source of plaintiff’s pain was the plantar eallusitas which did not result from the work-related accident. He felt as a result of the accident plaintiff suffered a five percent permanent partial disability to his lower extremity and that he should be able to return to work.

Dr. Stewart Phillips, an orthopedic surgeon, first saw plaintiff on September 16, 1974. He was of the opinion that the plantar callusitis condition developed secondary to the injury and amputation. Dr. Phillips amputated plaintiff’s fourth toe in March 1975. He believed that the loss of the two smallest toes caused more weight to be placed on the metatarsal heads and this pressure was the source of the development of calluses. Dr. Phillips gave him a twenty percent disability to the foot and a ten percent disability to the leg. He suggested a specially fabricated shoe and a job that did not require one to stand over four hours a day.

Dr. Claude Williams, an orthopedist, saw plaintiff on October 18, 1974. The doctor found that the laceration over the distal (top) portion of plaintiff’s foot was well healed. He noted the pes cavus deformity and opined that the calluses were due to the deformity and were unrelated to the accidental injury. He gave plaintiff an eight to ten percent permanent, partial disability of the right foot as a result of the accident and stated that he could return to work as a carpenter.

Dr. Soboloff, an orthopedic surgeon, saw plaintiff on July 15, 1975. He believed plaintiff had resolved his difficulties with regard to the lacerations suffered in the saw accident. He attributed the calluses on plaintiff’s feet to his pes cavus condition alone. He testified that plaintiff was more likely to have a greater number of calluses on his right foot because he is right handed. He explained that a right handed person will usually lead off on his right foot thereby placing greater pressure on that side which results in the greater formation of calluses. He recommended a special heavy work shoe to alleviate the pes cavus problem and to enable plaintiff to return to work.

The only lay testimony presented was that of plaintiff and his brother for whom he worked.

Plaintiff testified that he had calluses prior to the accident but that they had not prevented him from working an eight or nine hour day. After the accident, plaintiff testified that he had attempted to work but was only able to perform for a half day because of the pain. He stated that his foot would begin to swell and he would be forced to remove his shoe.

Plaintiff’s brother testified that after the accident plaintiff attempted to work several times. He said he could work for a few hours a day but then his foot would become sore and he would have to discontinue working.

The trial judge found that plaintiff had failed to prove his case by a preponderance of the evidence. The court accepted the testimony of Drs. Weilbacher, Williams and Soboloff indicating that plaintiff was able to return to work as a carpenter if he wore corrective boots. He also relied on the medical testimony that the injury to the top portion of plaintiff’s foot was not the source of his pain.

The plaintiff argues on appeal that the trial court erred in not finding him totally and permanently disabled from resuming his former occupation without enduring substantial pain.

Plaintiff points out he was able to work eight to nine hours a day prior to the accident in spite of his pes cavus deformity. Following the accident he experienced severe pain which prevented him from working any more than four hours a day. Plaintiff points out that an employer may be liable for compensation benefits where a work-related accident aggravates a pre-ex-isting condition.

Plaintiff argues that Dr. Weilbacher and Dr. Phillips stated that the plantar callusitis over the fourth metatarsal head of plaintiff’s right foot was a direct result of the accident. He characterized both Dr. Williams and Dr. Phillips as treating physicians and argued that their testimony should be given greater weight.

Defendant points out that Dr. Weilbacher was of the opinion that the fourth toe was the cause of plaintiff’s pain. Dr. Weilbacher recommended amputation. However, even after plaintiff refused this operation the doctor opined that plaintiff could return to work as a carpenter.

Defendant relies on the testimony of three of the four doctors indicating that plaintiff could return to work. Defendant points out that Dr. Phillips testified originally that plaintiff had no calluses on the uninvolved left foot which was in contradiction to plaintiff’s own testimony as well as that of the other doctors. Defendant argues that the factual findings of the trial judge are entitled to great weight and must not be upset in the absence of manifest error.

The sole issue on appeal is whether or not plaintiff has proven by a preponderance of the evidence that his disability is causally connected to his work-related accident.

Plaintiff, though a compensation claimant, like any other plaintiff, bears the burden of proving his claim by a preponderance of the evidence. Dupard v. M & C Construction Co., 312 So.2d 660 (La.App. 4 Cir. 1975).

Upon a review of the evidence we find that plaintiff has failed to prove that his congenital deformity was aggravated by the accident, so as to render him permanently disabled. The medical testimony reflects that the laceration on the distal portion of plaintiff’s right foot was not responsible for the development of the plantar callusitis and the ensuing pain.

The trial judge accepted the above testimony as conclusive. Great weight must be given to the lower court findings concerning the credibility of witnesses. Valerio v. D. H. Holmes Company, 276 So.2d 329 (La.App. 4 Cir. 1973).

We must also accept the medical testimony to the effect that the injury did not aggravate the pre-existing condition in any way. We fail to find manifest error in the trial court’s rejection of Dr. Phillips opinion that the plantar callusitis was secondary to the injury. See Tarver v. Garan, Inc., 324 So.2d 473 (La.App. 3 Cir. 1975); Anderson v. Jefferson Mechanical Contractors, Inc., 301 So.2d 420 (La.App. 4 Cir. 1974); and Valerio v. D. H. Holmes Company, supra.

For the foregoing reasons, the judgment is affirmed.

AFFIRMED.


text:
    Jessie S. CHATELAIN v. AMERICAN CAN COMPANY.
    No. 8337.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 13, 1977.

      Donald V. Organ, New Orleans, for Jessie S. Chatelain, plaintiff-appellant.
    John E. Jackson, Baldwin J. Allen and John E. Jackson, Jr., New Orleans, for American Can Co., defendant-appellee.
    Before BOUTALL, MORIAL and BEER, JJ.
   BOUTALL, Judge.

This is a suit for workmen’s compensation benefits. The Trial Court rejected plaintiff’s demands and dismissed his suit. This appeal followed.

Plaintiff-appellant, Jessie Chatelain, brought his action for compensation benefits for permanent and total disability, within the meaning of the Louisiana Workmen’s Compensation Act, LSA-R.S. 23:1021 et seq. In his petition, plaintiff alleges that his employment with the defendant company exposed him to continuous noise and racket which caused him to become partially deaf, and that this deafness as well as his increased sensitivity to loud noises has rendered him permanently and totally disabled. Plaintiff requested a change in position with his employer because of hearing problems May 5, 1975. In rendering judgment adverse to plaintiff, the trial judge stated:

“The court does not find that the plaintiff proved an accident within the Workmen’s Compensation Law.”

The plaintiff-appellant claims that the trial court erred in finding that the plaintiff did not prove an accident within the Workmen’s Compensation Law, and appellant contends the issue on appeal to be whether prolonged exposure to severe noise levels and resultant injuries to hearing constitute an “accident” within the meaning of the Louisiana Workmen’s Compensation statute.

We agree with appellant that extraordinary physical stress and strain is not essential to the definition of disabling accident. It is well established in Louisiana that when the performance of the usual and customary duties of a workman cause or contribute to a physical breakdown, the statutory requirements for an accidental injury are present. Ferguson v. HDE, Inc., 270 So.2d 867 (La.1972); Bertrand v. Coal Operators Casualty Company, 253 La. 1115, 221 So.2d 816 (1968); Whitworth v. Kaiser Aluminum & Chemical Corp., La.App., 135 So.2d 584 (1961).

However, the appellee points out, and we agree, that the real issue before us is whether the plaintiff sustained his burden of proof of causation of the hearing loss. We follow the rule as stated in Prim v. City of Shreveport, 297 So.2d 421 (La.1974):

“Although procedural rules are construed liberally in favor of the workmen’s compensation claimants, the burden of proof, by a preponderance of the evidence, is not relaxed. Thus, the testimony as a whole must show that more probable than not an employment accident occurred and that it had causal relation to the disability. If the testimony leaves the probabilities equally balanced, the plaintiff has failed to carry the burden of persuasion. Likewise, the plaintiff’s case must fail if the evidence shows only a possibility of a causative accident or leaves it to speculation or conjecture.” (Citations of authorities omitted.)

There is no dispute over the fact that the plaintiff has a complete loss of hearing in his left ear and a slight loss of hearing in his right ear (although the hearing range of the right ear was still within normal limits).

What is in dispute is whether the noise trauma that the plaintiff experienced while working at the defendant’s plant did cause the loss of hearing in plaintiff’s left ear.

Three doctors were called as experts by the parties, and all three testified that acoustical trauma, such as that alleged by the plaintiff, usually causes bilateral damage, that is, there is usually a near equal loss of hearing in both ears. The experts also agreed that a unilateral loss of hearing is usually caused by viral neuronitis, or viral infection. Such an infection can be the result of common diseases such as a cold or the mumps. Dr. Miles Lewis, a specialist in the field of Otology opined that as many as sixty-seven percent of the cases of unilateral loss of hearing are caused by the common cold. Plaintiff’s expert witness, Dr. Prank Norman, a specialist in Otolaryngology conceded that in the case of unilateral deafness, he would suspect other causes first before he would suspect industrial noise as the cause of unilateral deafness.

The medical testimony shows that due to the nature of the loss of hearing suffered by the plaintiff, that is, unilateral, there is only a possibility of a causative accident. The testimony as a whole does not show it more probable than not that an industrial accident occurred nor that it had a causal relation to the disability. Accordingly, we must find that the plaintiff has not met his burden of proof and that the judgment of the trial court should be affirmed.

For the foregoing reasons, the judgment appealed is affirmed.

AFFIRMED.


text:
    Suzanne Pauline Vollenweider, wife of Nicholas BRESCHER, Jr. v. Nicholas BRESCHER, Jr.
    No. 8371.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 13, 1977.

      Timothy A. O’Brien, III, for plaintiff-appellant.
    Paul F. Rogyom, Kenner, for defendant-appellee.
    Before SAMUEL, REDMANN and LEM-MON, JJ.
   REDMANN, Judge.

An ex-wife appeals from a judgment which refused her permanent alimony on the basis of lack of need, despite her uncorroborated testimony that she was usually unable to work a full 40-hour week because she had not fully recuperated from intestinal by-pass surgery for obesity. The trial judge ruled “that the Plaintiff’s recent major surgery was of a cosmetic nature and therefore should not be a consideration in her request for alimony.”

That reasoning is inconsistent with Ward v. Ward, La.1976, 339 So.2d 839, which holds that a wife’s earning capacity is not a factor in fixing alimony. If an ex-wife’s total non-use of her ability to work is immaterial to her entitlement to alimony, so is her partial non-use of her ability to work. If an ex-wife is free to not work at all and still collect alimony she is free to work less than 40 hours a week irrespective of her motive for doing so.

We nevertheless affirm because the factual evidence does not otherwise support an award. The ex-wife’s 40-hour week pay is $116, or over $464 monthly gross; the ex-husband’s monthly gross is $875. The ex-wife’s payroll taxes are not shown, but she nets $360 monthly even after insurance premiums. The ex-wife’s testimony that her health makes her miss a day or more in about three weeks out of four does not establish that she lacks the approximately $350 a month shown to be the cost of her necessaries.

Affirmed.

      . The ex-wife thus would earn over a third of the ex-spouses’ combined income. Whether C.C. 160’s limitation of alimony to a third of the husband’s income implies an analogous limitation to a third of the spouses’ combined income is not discussed because we conclude that the wife’s needs were not shown to exceed her own income.


text:
    TWI-RO-PA MILLS AGENCY, INC. v. IMPERIAL ENTERPRISES, INC., et al.
    No. 8380.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 13, 1977.

      Jones, Walker, Waechter, Poitevent, Carrere & Denegre, Donald 0. Collins, New Orleans, for defendants-appellants.
    Sessions, Fishman, Rosenson, Snellings & Boisfontaine, Walter C. Thompson, Jr., New Orleans, for plaintiff-appellee.
    Before BOUTALL, MORIAL and BEER, JJ.
   BEER, Judge.

Appellants, Imperial Enterprise, Inc. (“Imperial”), Newsome’s Demolishing Co., Inc. (“Newsome’s”) and The Travelers Insurance Company, seek reduction of a judgment in the amount of $36,900 plus interest and costs, rendered (without written reasons) in favor of appellee, Twi-Ro-Pa Mills Agency, Inc. (“Twi-Ro-Pa”), for damages resulting from the weakening and exposure of a common wall between buildings owned respectively by Twi-Ro-Pa and Imperial. In its Answer to Appeal, Twi-Ro-Pa seeks an increase in the judgment by $31,500 for “loss of rentals.” By stipulation, the issues are limited to quantum.

The common wall existed between, was shared by and formed a part of both buildings. In February, 1974, Twi-Ro-Pa moved to a new business location but continued as owner of the building here involved. Shortly thereafter, Imperial contracted with Newsome’s to demolish certain of its buildings fronting on Tchoupitoulas Street, including the building next to the one formerly occupied and still owned by Twi-Ro-Pa.

As a result of the completed dismantlement of Imperial’s building, Twi-Ro-Pa’s building sustained damages principally described as structural weakness in and deterioration of the common wall. Appellants contend, however, that the deteriorated condition of the common wall antedated the demolition of the abutting building and further contend that the trial court erred in failing to recognize that Twi-Ro-Pa did nothing to mitigate its damages by correcting the vulnerable condition of the wall after the demolition of Imperial’s adjoining building.

At the trial, Mr. Jared Palmer, president of Twi-Ro-Pa, testified that Twi-Ro-Pa was not able to repair the building for financial reasons and that the company was unable to rent or sell the property due to the delapidated condition of the common wall after demolition of Imperial’s building.

Mr. Edward R. Morphy, a consulting engineer, visited the property on several occasions at an early stage in the demolition procedure and described the common wall as being “in extremely poor condition.” He recommended, prior to demolition, that the wall be either rebuilt or braced. Testifying as an expert structural civil engineer, Mr. Morphy expressed the view that “the lateral stability of the (common) wall was provided for by the joists and floor system of the Imperial side building, . . .’’He asserted that the common wall, as it stood at the time of trial, was “unsafe” and in imminent danger of collapse.

Mr. Fred L. Liebkemann, expert in mechanical and structural engineering, testified that once the Imperial building had been removed, the common wall was free of restraint on one side which allowed it to move away from the Twi-Ro-Pa building. He observed that “there is evidence that the wall has started moving in that direction.” Mr. Liebkemann concluded that the repairs were necessitated by the demolition of the Imperial building. At the time of the trial, Mr. Liebkemann expressed the view that the wall was in “extremely dangerous condition,” and violative of the Building Code of the City of New Orleans. Mr. Liebkemann agreed with the proposal of Mr. Morphy that “tie-ins” of the walls to the floor system of Twi-Ro-Pa’s building would be the most feasible mode of repair.

In a June 27, 1974 report made to Twi-Ro-Pa several days after his inspection of the property, Mr. William B. Haensel, Jr., vice-president of J. J. Krebs & Sons, Inc. (civil engineers), noted, upon visual inspection, that recent movements in the common wall necessitated the following repairs:

1. Clean and fill all cracks in the brick wall with a rich cement mortar mix.
2. Replace all missing and/or damaged bricks.
3. Anchor every fifth floor joist to the walls on each side of the building thus providing lateral support for the deteriorated wall.
4. Apply a cement plaster coating on the new exterior face of the wall between 325 and 327 Tchoupitoulas St. for moisture control.

In Mr. Haensel’s opinion, these repairs, with the exception of the cracks, were a result of the demolition of Imperial’s building.

Herman J. Abry, president of Abry Brothers, Inc. (contractors), qualified as an expert in structural shoring and repairs, and testified, pursuant to a report made on April 30,1975, that he visually inspected the subject property and estimated the cost of installing the necessary wall ties, as recommended by Mr. Morphy, to be $27,200. Mr. Liebkemann, whose testimony was noted above, corroborated the fact that Mr. Abry’s estimate of needed repairs was necessary to meet Building Code requirements.

Twi-Ro-Pa additionally called Richard E. Volker, vice-president of Southeast Distributors, Inc. (a waterproofing firm), as an expert waterproofer. Mr. Volker estimated the cost of masonry repairs, sandblasting and waterproofing the exterior wall to be $9,700.

The condition of Twi-Ro-Pa’s building came to the attention of municipal authorities including the Department of Safety and Permits and the Fire Prevention Division of the New Orleans Fire Department. Twi-Ro-Pa was ordered to remedy the dangerous and unsafe condition extant after the demolition.

In Coleman v. Victor, 326 So.2d 344 (La., 1976), the Supreme Court stated:

“When property is damaged through the legal fault of another, the primary objective is to restore the property as nearly as possible to the state it was in immediately preceding the damage, it is well settled that the measure of damage is the cost of restoring the property to its former condition. In assessing damage to property, generally, courts have considered the cost of restoration as the proper measure of damage where the thing damaged can be adequately repaired. Intermediate appellate courts have often attempted to formulate tests in assessing damage to property. In our view, no mechanical rule can be applied with exactitude in the assessment of property damage under article 2315. Each case must rest on its own facts and circumstances as supported by the proof in the record.” (Footnotes omitted.)

The repair estimates submitted by Messrs. Abry and Volker were, apparently, reasonable costs of restoration under existent circumstances. Appellants point to no evidence to contravene this conclusion. Even though the trial court’s award may result in a partial windfall to Twi-Ro-Pa if they are able to sell the land and demolish the building, we find no manifest error in the methodology seemingly applied to the quantum determination.

Other than Mr. Palmer’s self-serving statement that Twi-Ro-Pa has been unable to rent the subject property, the record is bare of evidence supportive of appellee’s claim for loss of rentals, and, likewise, we find no manifest error in the trial court’s rejection of this claim.

Accordingly, we affirm. Each party is to bear its own costs of this appeal.

AFFIRMED.


author: ROGERS, Judge.

text:
    Mason QUINNEY, Jr., Plaintiff-Appellee, v. MARYLAND CASUALTY CO. et al., Defendant-Appellant.
    No. 6062.
    Court of Appeal of Louisiana, Third Circuit.
    April 22, 1977.
    Gist, Methvin & Trimble by David A. Hughes, Alexandria, for defendanNappel-lant.
    Gist, Methvin & Trimble by DeWitt T. Methvin, Jr., Alexandria, for defendant-ap-pellee.
    Antoon & Dalrymple by Thomas A. An-toon & Joseph T. Dalrymple, Alexandria, for plaintiff-appellee.
    Before DOMENGEAUX, GUIDRY and ROGERS, JJ.
   ROGERS, Judge.

MOTION TO DISMISS

The plaintiff-appellee, Mason Quinney, Jr., moves to dismiss the suspensive appeal of the defendant-appellant, Maryland Casualty Company, on grounds that the defendant’s appeal was not timely perfected. The motion is opposed.

This is a suit for workman’s compensation benefits. A formal judgment was signed and rendered in this matter on January 3, 1977, awarding the plaintiff workman’s compensation benefits, and hospital and medical expenses. On January 6, 1977, the defendant filed a motion for a new trial. In its Motion For a New Trial, the defendant argued that it had been improperly assessed in this suit with cost incurred in a companion suit, Mason Quinney, Jr. v. United States Fidelity & Guaranty Insurance Company, a tort suit, in which judgment had been rendered in favor of the defendant, United States Fidelity & Guaranty Insurance Company. On January 17, 1977, defendant’s motion for a new trial was heard, and the trial court granted the motion, insofar as the costs issue was concerned, and amended its judgment of January 3,1977, reassessing the cost, but holding that “in all other respects, the defendant’s motion for a new trial be and the same is hereby denied”. A formal “Judgment on Motion for a New Trial” was signed and rendered on January 24, 1977.

On January 24, 1977, the defendant moved for and was granted, a suspensive appeal, however, the defendant did not post its appeal bond, and therefore perfect its appeal, until February 25, 1977, some 32 days after the rendition of the “Judgment on Motion for a New Trial” was signed.

In his motion to dismiss, the plaintiff-ap-pellee argues that since the defendant-appellant’s suspensive appeal was not perfected until some 32 days after the court’s judgment on the motion for a new trial, the defendant-appellant’s suspensive appeal must be dismissed.

In its Opposition to the plaintiff’s motion, the defendant argues that since the court rendered an amended judgment, it had under LSA-C.C.P. art. 2123(1) 30 days from the expiration of the delay for applying for a new trial, as provided by LSA-C.C.P. art. 1974, from the amended judgment, in which to perfect his appeal. We agree.

An identical situation was presented to our brethren in the Second Circuit in Ware v. Wilson, 283 So.2d 813 (La.App. 2nd Cir. 1973), and there the court held that under the plain language of LSA-C.C.P. art. 1974 and 2123(1), the 15 day delay (which has now been changed to 30) in which to perfect a suspensive appeal did not begin to run until the expiration of the 7 clear day delay provided for applying for a new trial from an amended judgment rendered, as here, as a result of the defendant’s motion for a new trial. We note that the Supreme Court denied writs in the Ware case, supra, 284 So.2d 774, with the notation “Writ Denied. The judgment is correct”.

In accordance with the Ware decision, the defendant here had, under LSA-C.C.P. art. 1974 and 2123(1), 30 days from February 2, 1977, which is 7 clear days from the amended judgment of January 24, 1977, or until March 4, 1977, in which to perfect its suspensive appeal. The defendant’s appeal, perfected on February 25, 1977, was thus timely.

For the reasons above assigned, the motion of the plaintiff-appellee to dismiss the suspensive appeal of the defendant-appellant is hereby denied.

MOTION DENIED.


text:
    William VAN NORMAN v. STATE of Mississippi.
    No. 49627.
    Supreme Court of Mississippi.
    March 30, 1977.
    Rehearing Denied May 11, 1977.
    Mack Brabham, McComb, for appellant.
    A. F. Summer, Atty. Gen., by Henry T. Wingate, Special Asst. Atty. Gen., Jackson, for appellee.
    Before PATTERSON, P. J., and ROBERTSON and BROOM, JJ., and JOE 0. SAMS, Sr., Commissioner.
   AFFIRMED.

GILLESPIE, C. J., INZER, P. J., and SMITH, SUGG, WALKER and LEE, JJ., concurring.


text:
    Anthony Monroe McBRIDE and William David McBride v. STATE of Mississippi.
    No. 49633.
    Supreme Court of Mississippi.
    April 6, 1977.
    Rehearing Denied May 11, 1977.
    Travis Buckley, Laurel, for appellant.
    A. F. Summer, Atty. Gen. by Wayne Snuggs, Special Asst. Atty. Gen., Jackson, for appellee.
    Before PATTERSON, P. J., and ROBERTSON and BROOM, JJ.
   AFFIRMED.

GILLESPIE, C. J., INZER, P. J., and SMITH, SUGG, WALKER and LEE, JJ., concur.


text:
    Hershell Ray AUSTIN v. STATE of Mississippi.
    No. 49577.
    Supreme Court of Mississippi.
    April 6, 1977.
    Rehearing Denied May 11, 1977.
    Harry L. Kelley, Jackson, for appellant.
    A. F. Summer, Atty. Gen. by Pete J. Cajoleas, Special Asst. Atty. Gen., Jackson, for appellee.
    Before PATTERSON, P. J., and ROBERTSON and BROOM, JJ.
   AFFIRMED.

GILLESPIE, C. J., INZER, P. J., and SMITH, SUGG, WALKER and LEE, JJ.


author: BROOM, Justice,

text:
    Harold BURNS v. STATE of Mississippi.
    No. 50088.
    Supreme Court of Mississippi.
    April 20, 1977.
    Michael J. Malouf, Jackson, for appellant.
    A. F. Summer, Atty. Gen., by Karen Gil-foy, Asst. Atty. Gen., Jackson, for appellee.
    Before PATTERSON, ROBERTSON and BROOM, JJ.
   BROOM, Justice,

for the Court:

By habeas corpus petition Burns (appellant) challenged the legality of his sentence and confinement which followed his plea of guilty to the sale of marijuana. Burns was charged under Miss.Code Ann. § 41-29-139(c)(2) (Supp.1976). He appeals from the denial of his petition by the Copiah County Circuit Judge who then committed Burns to the Mississippi Department of Corrections rather than to the penitentiary. Burns’ sentence is three years confinement and a $3,000 fine, which we affirm.

The state does not challenge habeas corpus as Burns’ form of action here where he seeks post-conviction relief from his sentence upon a guilty plea entered on November 16, 1976. Next day he gave notice of appeal. Then on December 1, 1976, well within the time to perfect his appeal, he filed his Petition for Writ of Habeas Corpus which was heard and denied the same day. An order was entered leaving Burns’ sentence unchanged except his commitment was then made to the Department of Corrections rather than to the penitentiary as ordered on November 16, 1976.

Nelson v. Tullos, 323 So.2d 539 (Miss. 1975), held that habeas corpus has the principal function of testing the legality of a petitioner’s detention prior to conviction. We said in Nelson that habeas corpus as a post-conviction remedy may be used to release a petitioner from confinement only where his conviction rests upon an invalid statute, or was by a court lacking jurisdiction. See also, Keller v. Romero, 303 So.2d 481 (Miss. 1974); State v. Ridinger, 279 So.2d 618 (Miss. 1973). In the instant case, after the lower court entered its final order dated December 1, 1976, Burns gave a second notice of appeal to the court reporter (with copies to the district attorney and circuit clerk). As we said in Nelson v. Tullos, supra, “where a petition is filed seeking post-conviction relief the court should look through the form and to the substance of the petition.” Burns’ two notices of appeal were timely filed and his habeas corpus petition was filed prior to expiration of the time during which he could have perfected his appeal. Applying the rationale of Nelson, we will consider the matter as a regular appeal on the narrow issue of whether the sentence of Burns should have required his commitment to a state hospital rather than the penitentiary or Department of Corrections. It is arguable that we should not hear the matter because the Department of Corrections may in its discretion commit Burns to one of the hospitals rather than to prison, but we prefer to reach the heart of the question. Doing so will be productive of judicial economy, and will facilitate rather than frustrate the administration of justice. Generally, under Miss. Code Ann. § 99-35-101 (1972), appeals are not allowed “where the defendant enters a plea of guilty” and we do not deem the present case as an appeal from a guilty plea. Again, as in Nelson, our action here must not “be construed as an abrogation of the rule that habeas corpus does not lie as a general post-conviction remedy in Mississippi.”

Burns contends that because he is under twenty-one years of age, Miss. Code Ann. § 41-29-150(c) (Supp.1976) precludes his confinement except at one of two state hospitals. § 41-29-150(d) states:

Any person who has not reached his twenty-first (21st) birthday and who is convicted of a first offense under subsections (a), (b), or (c) of section 41-29-139, shall, or of a second or subsequent offense under subsections (d) or (e) of section 41-29-139, in the discretion of the court, may be confined under the terms set out in subsection (e) above for all or any portion of the sentence imposed.

Subsection (c), relied upon by Burns, provides that a juvenile first offender under age twenty-one shall be confined at East Mississippi State Hospital at Meridian, or Mississippi State Hospital at Whitfield, for the term of his sentence. This statute was interpreted by this Court in Worthy v. State, 308 So.2d 921 (Miss. 1975), to require sentencing of “juvenile first offenders” to one of the two state hospitals. Worthy does not hold that the indictment must charge a prior conviction in order to constitute basis of a sentence to confinement other than in a hospital. Language from earlier cases is cited in Worthy to the effect that “when there is substantial doubt as to which of the two (statutes) is to be applied,” the statute providing lesser punishment is to be applied. Conflicting statutes or statutes ambiguous as to punishment are not involved in the instant case where Burns himself does not contend he is a “first offender” — thus Burns’ case is the opposite of Worthy. The resolution of “substantial doubt” was applied favorably to Worthy because he was a true first offender. Davis v. State, 323 So.2d 741 (Miss. 1975), says that the holding in Worthy does not preclude the trial judge in sentencing juvenile first offenders from utilizing other legislative provisions which would promote his rehabilitation. In Davis we required the sentence to be changed to require confinement in a hospital rather than in the penitentiary, but there according to the record he was factually a first offender, which is not true of Burns here.

Burns admitted on questioning by the judge prior to sentencing that he had previously pleaded guilty to two other similar offenses (sale of marijuana). Clearly he was not a first offender but one who previously had been twice convicted of selling marijuana. § 41-29-139(c)(2), supra, sets the maximum penalty for sale of marijuana at twenty years imprisonment or $30,000 fine or both. Under § 41-29-150(c) the judge had the option at his discretion of sentencing Burns to confinement which may be in a state hospital or prison within the limits of § 41-29-139(c)(2).

Burns contends that Miss.Code Ann. § 41-29-147 (Supp.1976), which provides increased (graduated) punishment for a second or subsequent offense, is pertinent here. His argument is without persuasion because the punishment here is within the limits of § 41-29-139(c)(2), which makes no mention of graduated or enhanced or increased punishment for repeated offenses as does § 41-29-147. Significant here is the fact that upon discovering Burns’ prior convictions, the sentencing judge did not undertake to double his sentence under § 41-29-147. As noted by the judge below, it became evident at the sentencing of Burns that Burns had “committed the same offense on two prior occasions.” The judge correctly stated that the prior convictions “causes him not to meet the qualifications as a person under the age of twenty-one who is convicted of a first offense. . . . ”

Burns argues that under this Court’s decision in Lay v. State, 310 So.2d 908 (Miss. 1975), in order for him to be sentenced as was done in this case, the indictment with particularity must state the prior conviction. In essence he says that his pri- or convictions cannot be considered by the sentencing judge unless the indictment charges the prior convictions. Applying the rationale of his argument to the facts, if the judge is unable to look outside the indictment for facts to help him decide upon an appropriate sentence, he could not consider Burns as under twenty-one because Burns’ age is not mentioned in the indictment. Clearly judges need to know all available data about a defendant in order to determine judiciously the type sentence to be meted out. Prior convictions and age of a defendant about to be sentenced are two vital factors which judges universally consider regardless of whether such information appears on the face of the indictment. Obviously Burns confuses Lay with and fails to note its distinguishing features from his case. Lay dealt with a conviction under Miss.Code Ann. § 41-29-147 (1972), which provides enhanced punishment for a second or subsequent offense. Had the prosecution here desired to inflict enhanced punishment upon Burns, no doubt it would have so constructed the indictment. Viewed in its proper perspective, § 41-29-150(c), supra, rather than creating an enhancement of punishment situation creates an amelioration of punishment or alternative to confinement in prison. The practice of judges conducting pre-sentence inquiries and investigations so as to be aware of an accused person’s past life is not new; we commend rather than discourage such procedures by all sentencing judges. Some concern arises here because the record does not reveal just what questions were asked Burns prior to his guilty plea. His brief states that he was interrogated about his past and in response told the judge “he had pled guilty to the charge of sale of marijuana” in both Rankin and Hinds Counties. In all future cases where a guilty plea and resulting sentence are in any manner attacked, the record should be caused to show what questions were asked and what information was given the accused about his rights prior to his guilty plea.

Burns was not indicted or sentenced under § 41-29-147 and his punishment was not based upon any statute providing enhanced or graduated penalties. The salient fact of this case is that Burns, not being a first offender, did not fall within the category of persons whom the legislature saw fit to require confined at a hospital rather than otherwise. Accordingly, Burns was eligible for punishment within the limits of § 41-29-139(c)(2), supra, and the sentencing judge meted out a sentence well below such limits. We reject the view that a judge in sentencing a person convicted of a crime must ignore prior convictions not referred to in the indictment. Lay is authority which directs sentencing judges as to how they should deal with an enhanced or graduated punishment statute, which is not an aspect of Burns’ case. His arguments relate to conviction and penalties under § 41-29-147, supra, which provides for graduated or enhanced penalties not characteristic of the instant case. This is obvious when it is understood that Burns was sentenced under § 41-29-139(c)(2), which reads:

(2) Any other controlled substance classified in Schedules I, II or III, as set out in sections 41-29-113 to 41-29-117, is guilty of a felony and upon conviction may be imprisoned for not more than twenty (20) years, or fined not more than thirty thousand dollars ($30,000.00), or both;

Careful reading of the above language shows that it merely provides limits of the penalty which may be imposed upon a defendant charged under said § 41-29-139(c)(2).

The original sentence imposed in this case directed Burns to be confined at the Mississippi State Penitentiary. In dealing with the habeas corpus petition, the judge corrected his order by committing Burns to the Mississippi Department of Corrections pursuant to Mississippi Code Ann. § 47-5-110 (Supp.1976), which became effective July 1, 1976. No issue is raised or complaint made by Burns as to that aspect of the case.

AFFIRMED.

GILLESPIE, C. J., PATTERSON and IN-ZER, P. JJ., and SMITH, ROBERTSON, WALKER and LEE, JJ., concur.

SUGG, J., took no part.


author: SUGG, Justice.

text:
    Elizabeth BROWN and Resolute Insurance Company v. STATE of Mississippi.
    No. 48465.
    Supreme Court of Mississippi.
    April 20, 1977.
    Harry L. Kelley, Jackson, for appellant.
    A. F. Summer, Atty. Gen. by John C. Ellis, Sp. Asst. Atty. Gen., Jackson, for ap-pellee.
    Sullivan, Sullivan & Keyes, Earl Keyes, Jackson, representing Resolute Ins. Co.
   ON PETITION FOR REFUND OF. BAIL BOND

SUGG, Justice.

Elizabeth Brown was convicted of grand larceny in the Circuit Court of the First Judicial District of Hinds County and sentenced to four years in the State Penitentiary. She was released pending her appeal on $3,000 appearance bond with Resolute Insurance Company as surety. Her case was affirmed on April 14, 1975. 311 So.2d 664 (Miss.1975).

Following affirmance of her case Elizabeth Brown did not surrender to the Sheriff of Hinds County and on December 22, 1975 final judgment was rendered against Elizabeth Brown and Resolute in the amount of $3,000 on forfeiture of her bond.

Resolute paid $3,000 to the Clerk of this Court which was transmitted to Hinds County. Resolute now petitions the Court for a refund of the $3,000 after deductions of accrued court costs and any other charges that the Court might hold the surety responsible for. Resolute seeks the refund under Mississippi Code Annotated section 83-39-7 (1972) which provides in part as follows:

In the event of a final judgment of forfeiture of any bail bond written under the provisions of this chapter, the amount of money so forfeited by the final judgment of the proper court, less all accrued court costs and excluding any interest charges or attorney’s fees, shall be refunded to the bail bondsman or his insurance company upon proper showing to the court as to which is entitled to same, provided the defendant in such cases is returned to the sheriff of the county to which the original bail bond was returnable within twelve (12) months of the date of such final judgment, . . . then the bond forfeiture shall be stayed and remission made upon petition to the court, in the amount found in the court’s discretion to be just and proper.

Elizabeth Brown was released from the custody of the Hinds County Sheriff’s Department to the custody of the Mississippi State Penitentiary on June 29, 1976 for the purpose of serving her sentence. She was either apprehended by or returned to the Sheriff of Hinds County within twelve months of the date of the final judgment on the forfeiture of the bond. Therefore, Resolute is entitled to a refund in an amount found in the Court’s discretion to be just and proper.

The record before us does not disclose the expenses, if any, incurred by Hinds County in apprehending Elizabeth Brown. In order to determine the amount to be remitted, it is necessary that a determination be made of the expenses incurred by Hinds County in apprehending Elizabeth Brown and the amount of unpaid court costs. We therefore certify to the Circuit Court of the First Judicial District of Hinds County for it to determine the amount of expenses incurred by Hinds County in apprehending Elizabeth Brown and all court costs including appellate costs which have not been paid by either Elizabeth Brown or Resolute. The Board of Supervisors of Hinds County shall be notified of the hearing which shall be conducted within sixty days from the date of this opinion. The Circuit Court of Hinds County shall certify its finding of fact and the record made thereon to this Court following the hearing. The board of supervisors and Resolute may, in lieu of the hearing, stipulate in writing to the Circuit Court the expense items incurred by the county in apprehending Elizabeth Brown together with unpaid court costs.

This case was considered by a conference of the Judges en banc.

CERTIFIED TO THE CIRCUIT COURT FOR PROCEEDINGS CONSISTENT WITH THIS OPINION.


text:
    JOHN H. MOON & SONS, INC., J. W. Broadfoot d/b/a Broadfoot Construction Company v. Herschel G. JUMPER et al.
    No. 49296.
    Supreme Court of Mississippi.
    April 20, 1977.

      James H. C. Thomas, Jr., Hattiesburg, for appellant.
    Blair & Mackey, Oscar P. Mackey, Oxford, A. F. Summer, Atty. Gen. by Frank E. Shanahan, Jr., Asst. Atty. Gen., Jackson, for appellees.
    Before GILLESPIE, C. J., and SMITH and WALKER, JJ.
   AFFIRMED.


text:
    MISSISSIPPI STATE HIGHWAY COMMISSION v. Hector S. HOWARD et al.
    No. 49320.
    Supreme Court of Mississippi.
    April 20, 1977.
    Dwight N. Ball, Oxford, for appellant.
    Holcomb, Dunbar, Connell, Merkel, Tolli-son & Khayat, Robert C. Khayat, Grady F. Tollison, Jr., Clarksdale, for appellees.
    Before PATTERSON, P. J., and ROBERTSON and BROOM, JJ.
   Affirmed on condition of remittitur by appellees in the amount of $11,720, reducing judgment to $25,000; otherwise, reversed and remanded for another trial.

GILLESPIE, C. J., INZER, P. J., and SMITH, SUGG, WALKER and LEE, JJ., concur.


text:
    NESHOBA COUNTY GENERAL HOSPITAL and Neshoba County Nursing Home v. Laurel G. WEIR.
    No. 49337.
    Supreme Court of Mississippi.
    April 20, 1977.
    Rehearing Denied May 11, 1977.
    Roy Pitts, Meridian, for appellants.
    Laurel G. Weir, Philadelphia, for appel-lee.
    Before INZER, P. J., and SUGG and LEE, JJ.
   Affirmed in Part, Reversed in Part and Rendered.

GILLESPIE, C. J., PATTERSON, P. J., and SMITH, ROBERTSON, WALKER and BROOM, JJ., concur.


text:
    Bernard HARPER v. STATE of Mississippi.
    No. 49648.
    Supreme Court of Mississippi.
    April 27, 1977.
    Holloway & Haddock, James W. Haddock, Lake Village, Ark., for appellant.
    A. F. Summer, Atty. Gen., by Henry T. Wingate, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before INZER, P. J., and SUGG and LEE, JJ.
   REVERSED AND REMANDED.

GILLESPIE, C. J., PATTERSON, P. J., and SMITH, ROBERTSON, WALKER and BROOM, JJ., concur.


text:
    OPINION OF THE JUSTICES.
    No. 235.
    Supreme Court of Alabama.
    April 20, 1977.
   To The Honorable Speaker and Members of the House of Representatives

State Capitol

Montgomery, Alabama.

Sirs and Madam:

We are in receipt of. House Resolution No. 480, which reads as follows:

“BE IT RESOLVED BY THE HOUSE OF REPRESENTATIVES OF ALABAMA That we respectfully request the honorable Chief Justice and Associate Justices of the Supreme Court, or a majority of them, to give this body their written opinions on the following important constitutional question which have arisen concerning the pending bill, House Bill 293.
1. If enacted, would the bill, in allowing Alabama Law to be contingent upon Federal appropriations, violate Article 44 of the Constitution of Alabama?
RESOLVED FURTHER THAT THE Clerk of the House is hereby directed to send nine true copies of the pending bill, House Bill 293, to the Clerk of the Supreme Court of Alabama, and to transmit this request to the Justices of the Supreme Court forthwith upon adoption of this Resolution.”
Section 25 of House Bill No. 293 provides:
“Section 25. Suspension of Law — This Act is intended to supplement existing law, and no part thereof shall be construed to repeal any existing laws specifically enacted for the protection of health, the protection, maintenance and improvement of the quality of public water supplies or the control of radiation; however, the provisions of Title 22, Section 117-140, Code of Alabama, 1940 (1958 recomp.) are hereby expressly suspended for as long as Federal funding is available for this Act. Notwithstanding any other provision in this Act, this Act shall only be effective for as long as Federal funds are available for its implementation.”

This Court has on many occasions considered the question of whether an act, which depends upon a contingency for it to become effective, violates the provisions of Section 44 of the Alabama Constitution of 1901. This Court has consistently held that the Legislature may enact contingent legislation so long as it is complete in and of itself. See, e. g. Opinion of the Justices, 287 Ala. 326, 251 So.2d 744 (1971); Opinion of the Justices, 249 Ala. 509, 31 So.2d 717 (1947); Opinion of the Justices, 232 Ala. 60, 166 So. 710 (1936); Opinion of the Justices, 227 Ala. 291, 149 So. 776 (1933); Hand v. Stapleton, 135 Ala. 156, 33 So. 689 (1903).

This Court has not had the occasion to deliver an advisory opinion regarding legislation which was written, as here, to be contingent upon federal appropriations. We find that this factor does not alter the prevailing authority, that contingent legislation is not per se violative of Article 4, § 44 of the Alabama Constitution of 1901. We therefore answer the question propounded in the negative.

Respectfully submitted,

C. C. TORBERT, Jr., Chief Justice

JAMES N. BLOODWORTH

HUGH MADDOX

JAMES H. FAULKNER

RENEAU P. ALMON

JANIE L. SHORES

ERIC EMBRY

SAM A. BEATTY

Justices.


author: PER CURIAM.

text:
    In the Matter of the Honorable John Paul DeCARLO, Judge, Court of Criminal Appeals.
    No. 531.
    Supreme Court of Alabama.
    April 22, 1977.
    Benjamin E. Pool, Montgomery, for appellant.
    William J. Baxley, Atty. Gen. and Jerry L. Weidler, Asst. Atty. Gen., for appellee.
   PER CURIAM.

The Honorable John Paul DeCarlo, Judge, Court of Criminal Appeals of Alabama, appeals from a decision of the Board of Control of the State Employees’ Retirement System whereby it determined that he was not entitled to claim credit for prior service, as a deputy district attorney in Jefferson County, towards retirement under the Judicial Retirement Act. Act No. 1163, Acts of Alabama, Regular Session 1973, vol. IV, page 1948. We are compelled to agree with the Board of Control that Judge DeCarlo is not entitled to this credit under the Judicial Retirement Act.

The claim for credit for service as deputy district attorney is for the periods July 17, 1965, to February 13, 1967, and from November 7, 1968, to January 24, 1972, the total credit sought being 4 years, 9 months, and 15 days.

The claim is made pursuant to the terms of Section 10 of the Act, which reads, in pertinent part, as follows:

“Section 10. Any justice or judge holding office as a member of the supreme court, a court of appeals, or of a circuit court at the time this Act becomes law, who has paid contributions into the Employees’ Retirement System of Alabama, shall be entitled to have such contributions transferred from the Employees’ Retirement System of Alabama into the Judicial Retirement Fund and to receive credit for the time of service he had acquired under the Employees’ Retirement System of Alabama as time of service in the judicial position which he holds at the time of the adoption of this Act, regardless of whether or not such time of service was continuous, provided such time of service acquired under the Employees’ Retirement System of Alabama was in a legal or judicial position and further provided such justice or judge requests such transfer within three years from the date of the time this Act becomes a law. . . . Any justice or judge of the supreme court, a court of appeals, or of a circuit court holding office at the time this Act becomes law who has had time of service in a legal or judicial position in which he could have become a member of the Employees’ Retirement System of Alabama, if he had elected to do so but did not so elect, or who has time of service in the Employees’ Retirement System of Alabama in a legal or judicial position, but has since withdrawn the contributions to such system, or who has time of service in the legislature of Alabama, provided credit may be claimed for a maximum of two and one-half years’ service in the legislature, shall be entitled to have such time of service, regardless of whether or not such time of service was continuous, treated as time of service in the judicial position he holds at the time this Act becomes law; provided, such justice or judge pays into the Judicial Retirement Fund of Alabama a sum equal to four and one-half percent of his then annual salary for' each year of such service that he elects to count toward judicial retirement; and further provided such election and payment is made to the Secretary-Treasurer of the Employees’ Retirement System of Alabama within three years from the date this Act becomes law. . . . ” [Emphasis supplied.]

It seems clear that the legislature intended by Section 10, inter alia, to provide for three classes of judges who shall be entitled to have their time of service in a legal or judicial position credited towards judicial retirement. First, those who paid contributions into the Employees’ Retirement System of Alabama are entitled to have such contributions transferred into the Judicial Retirement Fund. Second, those who paid contributions into the Employees’ Retirement System of Alabama but subsequently withdrew those contributions are entitled to the credit, provided they pay into the Judicial Retirement Fund 4V2 percent of their salaries for those years. Third, those who could have, but did not, elect to join the employees’ Retirement System of Alabama are granted the privilege of “buying back” time spent in a legal or judicial position.

Both sides agree that Judge DeCarlo was required to be, and was, a member of the General Retirement System for Employees of Jefferson County when he served as a deputy district attorney and that he contributed to that retirement system.

Both sides seem to agree that there would be no question of such credits being allowed if Jefferson County had, in fact, elected to participate in the Employees’ Retirement System of Alabama, instead of maintaining its own system, and if Judge DeCarlo could have elected to participate.

Such was not the case. When Judge DeCarlo served as a deputy district attorney, he was required to become a member of the Jefferson County Retirement System. Act No. 497, Acts of Alabama, Regular Session 1965, vol. I, page 717.

Moreover, Tit. 55, § 466, Code of Alabama 1940 (Recompiled 1958), required that Judge DeCarlo be excluded from participating in the State Employees’ Retirement System because he was already required to participate in the Jefferson County Retirement System. Tit. 55, § 466, is as follows:

“No other provision of law in any other statute which provides wholly or partly at the expense of the state of Alabama or of any political subdivision thereof for pensions or retirement benefits for employees of the said state, shall apply to members of the retirement system established by this chapter, except as to provisions for coverage under the federal Social Security Act as may be provided by state and federal laws.”

Both sides agree Judge DeCarlo was a state officer when he served as deputy district attorney.

Thus, under the provisions of existing law, Judge DeCarlo could not “have become a member of the Employees’ Retirement System of Alabama, [even] if he had elected to do so.”

Judge DeCarlo argues that it would be unfair to disallow him credit for time spent as deputy district attorney when this Court allowed Judges Ashworth and Hines credit for the same office. See In re Ashworth, 291 Ala. 723, 287 So.2d 843 (1974), and In re Hines, 293 Ala. 230, 301 So.2d 545 (1974).

Neither of these cases is apposite. In both, these judge were seeking prior service credit under Section 9 of Act 1163, not Section 10. Section 9 gives credit only to circuit judges who were holding office on the effective date of the act and who were “entitled to credit for prior service toward earning supernumerary status in a position other than as a circuit judge.” The prior service of both judges as deputy district attorneys was claimed as credit towards earning their status as supernumerary district attorneys.

Purely and simply, the legislature has made no provision for credit on Judge De-Carlo’s judicial retirement for his prior service as a deputy district attorney for Jefferson County.

The Clerk of the Supreme Court is directed to notify the Board of Control of the State Employees’ Retirement System and Judge John Paul DeCarlo of this determination.

NOT ENTITLED TO CREDIT.

All the Justices concur.


author: MADDOX, Justice.

text:
    Randy Ray SADLER and Antonia Gabriallo Sadler v. RAM CONSTRUCTION CO., INC. and Robert Moussallem.
    SC 1981.
    Supreme Court of Alabama.
    April 22, 1977.
    James W. May, Birmingham, for appellants.
    Robert R. Sexton, Birmingham, for appel-lees.
   MADDOX, Justice.

The complaint in this case, filed by a husband and wife, sought to divest the homebuilder of any and all right it may have acquired by virtue of a deed from the owners to a lot upon which the builder agreed to build a residential dwelling house. The owners also asked for a rescission of a contract they entered into with the builder, and asked for money damages. The owners claimed that the builder occupied the status of a trustee and that it breached its trust, and also, that it breached the terms of the contract to construct a residential dwelling house for them.

The builder not only denied the breach of any duties imposed upon it, but also denied it breached the contract to construct a residential dwelling house. By counterclaim it sought money damages against the owners, claiming a breach of its contract by the owners.

The case was tried before the court without a jury. The court rendered its decree, denied the owners any relief, and awarded the builder a money judgment on its counterclaim against the owners in the amount of $5,000. In addition, the court ordered the owners to pay the builder’s attorney’s fee in the amount of $750. The builder was ordered to transfer the lot in question to the owners only after the money judgments against the owner had been paid.

The owners appealed, raising two issues:

1. The trial court erred in awarding an attorney’s fee to the builder and its attorneys.

2. The damages assessed against the owners have no reasonable basis in the evidence.

On the first issue, we agree with the owners. The trial judge erroneously awarded an attorney’s fee here because it was neither authorized by statute nor contract on which the suit was based. Taylor v. White, 237 Ala. 630, 188 So. 232 (1939).

On the second issue, we agree with the builder. There is overwhelming evidence upon which the trial judge could have based a finding that the builder was damaged by the breach to the extent of $5,000. Rule 52, ARCP; Hubbard Bros. Construction Co., Inc. v. C. F. Halstead Cont., Inc., 294 Ala. 688, 321 So.2d 169 (1975).

That portion of the judgment which awards Ram Construction Company $750 as attorney’s fees is reversed, otherwise, the judgment is affirmed.

AFFIRMED, IN PART; REVERSED AND REMANDED, IN PART.

TORBERT, C. J., and FAULKNER, SHORES and BEATTY, JJ., concur.