author: GUIDRY, Judge. HOOD, Judge

text:
    Chester FRANK, Plaintiff-Appellee, v. Elin PITRE, Sheriff of Evangeline Parish, Defendant-Appellant.
    No. 5779.
    Court of Appeal of Louisiana, Third Circuit.
    Jan. 31, 1977.
    Dissenting Opinion Feb. 2, 1977.
    Rehearing Denied March 2, 1977.

      Fusilier, Pucheu & Soileau by J. Wendel Fusilier, Ville Platte, for defendant-appellant.
    White & Pitre, Marion 0. White, Opelou-sas, Murphy W. Bell, Baton Rouge, for plaintiff-appellee.
    Before HOOD, C. J., and CULPEPPER and GUIDRY, JJ.
   GUIDRY, Judge.

Plaintiff, a policeman for the City of Ville Platte, seeks damages for personal injuries sustained when he was shot by a prisoner of the Evangeline Parish Sheriff’s Department. Made defendant is Elin Pitre, Sheriff of Evangeline Parish. The trial court rendered judgment in favor of plaintiff in the amount of $41,004.00. Defendant appeals.

The shooting occurred shortly after midnight on September 12, 1971. Plaintiff, who at the time of the incident was uniformed and working in his capacity as a policeman, had been stationed in a section of Ville Platte known as the “woods”. The “woods” is a strip of bars and nightclubs fronting Dr. Carver Street in that city.

During the course of plaintiff’s patrol of this area he was called upon to intervene in a fight which had broken out in the “Happy Landing Club”. After quietening the row plaintiff escorted Sidney Gallow, one of the participants in the fight, outside for a talk. Following plaintiff’s departure from the club with Gallow another scuffle arose inside. In this latter scuffle Jessie Sims, the floorwalker at the Happy Landing Club, was hit and knocked out by one L. J. Dick. Dick had not been involved in the previous altercation. After the blow by Dick, Sims fell unconscious to the floor. Dick then took Sims’ pistol from his holster and headed for the door. At approximately the same time, plaintiff, who was standing across the street from the club with Sidney Gallow, left Gallow and walked towards the entrance to the Happy Landing. As Dick fled through the screen doors of the club he targeted plaintiff, then only 5 feet away. Plaintiff was shot three times by Dick. He sustained wounds in his chest, face and shoulder. L. J. Dick was shot to death at the scene by another city policeman.

Dick was at the time of this incident, a prisoner of the Evangeline Parish Sheriff’s Department. About five weeks prior to this shooting incident, on August 5, 1971, Dick was arrested by the Ville Platte City Police on charges of simple burglary. At that time Dick had just returned to Ville Platte after serving 20 months in the State Penitentiary at Angola. Dick was on supervised probation at the time of his arrest on August 5, 1971. Dick was subsequently on or about August 12, 1971 transferred from the Ville Platte City jail to the Evangeline Parish jail. Thurman James, Dick’s parole officer, as a result of this arrest issued a detainer on Dick for a parole violation. (C.Cr.P. Article 899). There is nothing in the record to suggest that the detainer was lifted or that Dick had been admitted to bail.

At the trial on the merits plaintiff contended that the proximate cause of his injuries was the negligence of the defendant in failing to keep L. J. Dick in custody. Specifically plaintiff alleged that Dick, known by defendant to have a propensity for violence, was at large in the community with the consent of defendant. Defendant denied that Dick had been released with his consent and further denied any responsibility for the incident contending that the prisoner was an escapee. Defendant alternatively asserted the defense of assumption of the risk.

The trial court found that the prisoner, L. J. Dick, was not an escapee, but rather had been given liberty iñ accordance with the policies of the defendant. The trial court determined that this negligence of the Sheriff and his subordinates contributed directly to the shooting of plaintiff, who was in no way at fault, and therefore defendant’s negligence was the proximate cause of the damages plaintiff sustained. _ The trial court also determined that although the plaintiff was a police officer in a dangerous occupation he had not assumed the particular risk involved herein.

A determination as to whether, under the circumstances of this case, defendant bears any responsibility to plaintiff for the injuries sustained must be reached by application of the duty-risk inquiry as espoused in Hill v. Lundin & Associates, Inc., 260 La. 542, 256 So.2d 620 (1972). Under Hill, supra, this inquiry is as follows:

1. What, if any, duty was owed by defendant to plaintiff?
2. Was there a breach of the duty?
3. Was the breach of duty a substantial cause-in-fact of the injury?
4. Was the risk and harm within the scope of protection afforded by the duty breached?

WHAT, IF ANY, DUTY WAS OWED BY DEFENDANT TO PLAINTIFF?

A Sheriff has the responsibility for the custody of inmates in his parish jail. The Sheriff is the keeper of the public jail of his parish. LSA-R.S. 33:1435; LSA-R.S. 15:706, Walker v. Interstate Fire & Casualty Co., 334 So.2d 714 (La.App. 2nd Cir. 1976). Accordingly, a sheriff has the legal duty to detain persons lawfully in his custody. However, further examination of this duty reveals that the duty of the Sheriff to maintain and restrain his prisoners is not based upon the purpose of protecting the general public from all harms that the prisoner might inflict if he were allowed to escape. As stated in Green v. State, 91 So.2d 153 (La.App. 1st Cir. 1956) writs denied February 25, 1957:

“A convicted person may be as dangerous on the day of his legal release as he was on the first day that he was confined, although the institution may still be under a legal duty to detain or release him. There is no more reason for the State to be civilly responsible for the convict’s general misconduct during the period of his escape than for the same misconduct after a legal release, unless there is some further causal relationship than the release or escape to the injuries received.”

Thus, if there be a breach of the Sheriff’s duty to continue the prisoner’s incarceration, it can only be complained of by those whose injury was proximately caused by the breach. That is, the injury received should be one for the prevention of which the duty exists. A discussion of these elements will follow.

WAS THERE A BREACH OF THE DUTY?

We now examine the facts to determine whether the defendant, Sheriff, breached his duty. As aforestated the trial court found that the defendant was negligent in that he knew of L. J. Dick’s propensities for violence but nonetheless allowed the prisoner weekend liberty.

Without question the evidence established that L. J. Dick was a man of violent propensities. Although most of the witnesses agreed that L. J. Dick seldom made use of weapons, it was generally agreed by all witnesses that Dick was a “fighter” who had on numerous occasions been cited for breaches of the peace. Furthermore Dick had just recently returned from serving a sentence at the state penitentiary on a simple burglary conviction when he was again apprehended by the Ville Platte Police on another charge of simple burglary. The Sheriff was aware that Dick was awaiting trial on this latter charge and that a detain-er had been issued charging him as a parole violator.

The evidence also establishes that L. J. Dick was not an escapee, but rather, the prisoner, accompanied by two fellow inmates, had just signed out and left the parish jail with the apparent consent of the jailer. The testimony reflects that the prisoners left the jail on Saturday morning, September 11, 1971. Defendant denies that L. J. Dick was given liberty and instead contends that L. J. Dick left by means of a pass key he had secured from another prisoner. The trial court rejected this contention. We find no error in this determination. In any event, the evidence is clear that defendant was aware that Dick was not incarcerated and yet made no real effort to recapture him. The Sheriffs deputies testified that on September 11, 1971 during the late afternoon, after Dick was found to be missing, a patrol car was sent to the prisoner’s mother’s house. The mother denied this. The Sheriff’s deputies admitted that this was the only action they took since they were not concerned about Dick’s absence and figured he would be back. The Sheriff’s department issued no bulletins for the pickup of L. J. Dick, nor did/the Sheriff’s log book indicate that Dick had escaped.

Under the evidence outlined above we agree with the findings of the trial court. The prisoner L. J. Dick had violent propensities which were known to the defendant, yet knowing this the defendant custodian failed to act in a reasonable manner in securing or in trying to re-secure the custody of Dick. We conclude that under the facts of this case the defendant had a duty to retain and maintain the prisoner L. J. Dick in his custody and that he breached this duty.

WAS THE BREACH OF DUTY A SUBSTANTIAL CAUSE-IN-FACT OF THE INJURY?

Simply stated, but for the defendant’s breach of duty to keep his prisoner in custody, the plaintiff would not have been shot by the prisoner. Certainly this breach of duty which enabled this prisoner of violent propensities to be free of defendant’s custody was a substantial cause in fact of the plaintiff’s injuries.

WAS THE RISK AND HARM WITHIN THE SCOPE OF PROTECTION AFFORDED BY THE DUTY BREACHED?

Having determined that the defendant’s breach of his legal duty was a cause in fact of the plaintiff’s injuries we now determine if the duty breached was a duty imposed to protect against the particular risk involved. If so the defendant’s liability has been established.

In Hill v. Lundin & Associates, Inc., 260 La. 542, 256 So.2d 620 (1972), the court stated:

“All rules of conduct, irrespective of whether they are the product of the legislature or a part of the fabric of court-made law of negligence, exists for purposes. They are designed to protect some persons under some circumstances against some risks. Seldom does a rule protect every victim against every risk that may befall him merely because it is shown that the violation of the rule played a part in producing the injury.”

It must be conceded that one of the purposes, if not the main purpose, of the duty to keep L. J. Dick in custody was to protect against the risk that someone might be intentionally injured by him if he be permitted at large in the community. As aforestated Dick was a known criminal with a propensity for violence towards others. That someone might be intentionally injured by him, if he be released legally or otherwise, was certainly a natural, probable and foreseeable consequence. In this case, it is clear, that the duty breached was a duty imposed to protect against the particular risk which caused injury to plaintiff.

For the foregoing reasons we conclude that the defendant was negligent and that his negligence was a proximate cause of the injuries sustained by plaintiff.

ASSUMPTION OF THE RISK

In considering defendant’s defense of assumption of the risk we are aided by our Supreme Court’s decision in the case of Langlois v. Allied Chemical Corp., 258 La. 1067, 249 So.2d 133 (1971). The facts of Langlois, supra, show that the plaintiff therein was a fireman who sustained injury from gas inhalation, the gas having negligently escaped from the premises of the defendant. The plaintiff fireman, had inhaled the gas after responding to a call to give assistance to two men trapped in a tank on property adjacent to that owned by the defendant. In discussing the defendant’s defense of assumption of the risk the court in Langlois, supra, stated:

“In our case, Langlois did not enter the premises of Allied. He responded to the call to help others who were in imminent danger of suffering injury. In his response to the call his duty was to rescue those on adjoining premises whose lives and health were endangered by reason of Allied’s fault. Any voluntariness on the part of Langlois could only be found if we assume a waiver because he became a fireman. Firemen, police officers, and others who in their professions of protecting life and property necessarily endanger their safety to (sic) not assume the risk of all injury without recourse against others. Briley v. Mitchell, 238 La. 551, 115 So.2d 851 (1959). Here, Langlois’ rescue mission on the premises other than defendant’s would tend to minimize the extent to which Allied might be required to respond to damages to others. Lan-glois’ primary duty as a fireman was to drive the fire truck. In regard to his specific duty, it cannot be said that he assumed the risk from gas any more than drivers of other vehicles who might be in and about the premises. He was subjected to the gas while the truck remained on the premises, during the return trip to the fire station, and finally at the fire station when he washed down the truck. The determination of whether a plaintiff has assumed a risk is made by subjective inquiry, whereas contributory negligence is determined objectively under the reasonable man standard. See Restatement (Second), Torts § 496 (1965), Symposium: Assumption of the Risk, 22 La.L.Rev. 1-166. Although Langlois as a fireman possessed more knowledge than many about the nature of gases and the consequences of exposure to gases, he did not here knowingly and voluntarily encounter the risk which caused him harm. He acted in response to duty, and his exposure to the risk in line with that duty was minimal. Langlois did not embrace a known danger with that consent required by law to bar his recovery for defendant’s fault. The defendants must establish by a preponderance of the evidence their affirmative defense. They have failed to discharge the burden.”

As further set forth in the case of McInnis v. Fireman’s Fund Insurance Company, 322 So.2d 155 (La.1975):

“It is fundamental that, in order to assume a risk, one must knowingly and voluntarily encounter a risk which caused him harm. Plaintiff must understand and appreciate the risk involved and must accept the risk as well as the inherent possibility of danger because of the risk. Assumption of the risk is an affirmative defense which must be specially pleaded. The burden of proving this defense is upon the defendant.”

In the instant matter the defense of assumption of the risk is predicated on the fact that the plaintiff, a police officer, knowingly and voluntarily assumed the risk of injury from this prisoner. Following the reasoning of Langlois, supra, we are of the opinion that the plaintiff, whose profession necessarily requires the protection of life and property, did not assume the risk of all injury without recourse to others. See also Briley v. Mitchell, 238 La. 551, 115 So.2d 851. Plaintiff’s primary duty as a police officer was to patrol the area of Ville Platte known as the “woods”. Although aware of L. J. Dick’s arrest on the 5th day of August, 1971, it is not shown that plaintiff was cognizant of the issuance of the detainer by the Department of Probation. Additionally, there is no evidence to indicate that plaintiff knew or had reason to believe that L. J. Dick was not lawfully free by reason of bail or otherwise on the aforesaid date. Plaintiff was not at the time of the incident attempting to take L. J. Dick into custody. Admittedly plaintiff, along with many patrons of the Happy Landing Club, possessed knowledge of L. J. Dick’s presence in the establishment as well as his propensity for violence. However, plaintiff was only in the “woods” in response to his duty to patrol the area, and he, like the patrons, did not knowingly and voluntarily encounter or consent to the risk which caused him harm. (See discussion, infra: Risk and Harm Within Protection of Duty). Plaintiff did not embrace a known danger with that consent required by law to bar his recovery for defendant’s fault. We are of the opinion that the defendant has failed to discharge his burden of proof in regard to his defense of assumption of the risk.

QUANTUM

The remaining issue for determination is whether the trial court abused its great discretion in its award of general damages to plaintiff. The trial court awarded plaintiff $40,000.00 in general damages.

The defendant contends that his liability is limited under the provisions of LSA-R.S. 33:1433, alternatively arguing that the trial court award of damages is excessive. Plaintiff in brief submitted to this court has asked for an increase in the award of damages, but plaintiff has neither appealed nor answered the appeal and therefore this issue is not before us.

LSA-R.S. 33:1433 provides in pertinent part:

“No sheriff of any parish of this state, nor his sureties, shall be liable for any act or tort committed by one of his deputies, or by any person commissioned as deputy sheriff by him, beyond the amount of the bond or limits of liability insurance furnished by said deputy sheriff, unless said deputy sheriff in the commission of the said act or tort, acts in compliance with a direct order of, and in the personal presence of, the said sheriff, at the time the act or tort is committed.”

Clearly the statute applies only to acts and torts committed by the Sheriff’s deputies, not the Sheriff. In the instant matter the tort committed was the Sheriff’s negligent operation of his office in allowing the prisoner, L. J. Dick, to leave and remain out of his custody. As previously discussed the trial court found that L. J. Dick was not an escapee, but had been released for a “pass” in accordance with the policy adopted by the defendant Sheriff. We discern no error in this finding. We recognize that the deputy sheriffs and other subordinates aid the Sheriff in the execution of his duty as jail keeper, but the duty is his, and the right to set policy is his and consequently he and not the deputy sheriffs committed the breach of duty for which the plaintiff seeks recovery. We find LSA-R.S. 33:1433 inapplicable to the instant matter.

In support of his claim for damages plaintiff introduced the depositions of Drs. Ramson Vidrine and Charles Fontenot. The testimony of these two physicians showed that plaintiff had sustained multiple gunshot wounds of the chest, face, and left shoulder. Dr. Fontenot testified that plaintiff had received life threatening injuries.

Dr. Vidrine performed surgery on the plaintiff the night of the incident, September 12, 1971. Plaintiff was approximately 56 years of age. The surgery required removal of the bullets from plaintiff’s back and one from the mouth. Bullet fragments remain in plaintiff’s chest and lung region. The medical evidence shows that although plaintiff has fully recovered from his wounds he will suffer with lung problems and chest pains as a result of the injury for the rest of his life. The plaintiff has subsequently developed pleurisy which is an infection of the surface of the lung. Dr. Vidrine testified that due to plaintiff’s susceptibility to respiratory ailments he cannot accept employment which will subject him to inclement weather conditions. Plaintiff’s chest pains are accounted for by poor circulation of his blood to the heart, or “myocardial ischemia”. This latter condition prevents plaintiff from performing any type of manual labor.

In reviewing the award of general damages granted by the trial court we are guided by well established principles. Appellate review of awards of general damages is limited to determining whether the trial court abused its great discretion. Anderson v. Welding Testing Laboratory, Inc., 304 So.2d 351 (La.1974). This being so, and the above facts being considered, we find no abuse of the trial court’s discretion in its award of $40,000.00 to plaintiff.

For the above and foregoing reasons the judgment appealed from is affirmed. The costs of these proceedings to be borne by the defendant-appellant.

AFFIRMED.

HOOD, J., dissents and assigns written reasons.

HOOD, Judge

(dissenting).

I cannot agree with some of the major conclusions which my colleagues have reached.

They erred primarily, I think, in holding that Sheriff Pitre owed a duty to plaintiff “to continue the prisoner’s incarceration.”

The prisoner, L. J. Dick, was convicted of “simple burglary and forgery,” a non-violent crime, in October, 1969, and he was sentenced at that time to serve five years in the State Penitentiary. He was 19 years of age at that time, and that was his first and only conviction of a felony. After serving 20 months of that term, he was released on parole in June, 1971, and was placed under the supervision of Thurman James, a Probation and Parole Officer.

Dick remained at liberty for about two months, until August 5, 1971, when he was arrested by the City Police of Ville Platte on a charge of “simple burglary and theft,” another non-violent crime. He was transferred to the Evangeline Parish jail a few days later, where he was confined to await trial on that charge. He was never tried on the last mentioned charge, and he thus was never convicted of committing that offense.

The Probation and Parole Officer learned on August 16 or 17 that Dick had been arrested on the new charge, and he thereupon “filed a detainer” on him, so that the sheriff would detain Dick until a hearing could be held under LSA-C.Cr.P. art. 900 to determine whether he had violated the terms of his parole. A hearing was never held to determine whether Dick violated his parole, and no such determination of that issue was ever made.

The shooting incident which resulted in injuries to plaintiff, and in the death of Dick, occurred on September 11, 1971. At that time, Dick was not serving a sentence of any kind. He had been confined in the parish jail four or five weeks prior to that date simply to be held for trial on a pending charge and for a hearing on the question of whether he had violated his parole.

Under those circumstances, I think the sheriff owed a duty to the State to detain or hold Dick so that he would be present at the trial of the criminal charges which were pending against him, or at the informal hearing which was to be held to determine whether he had violated the terms of his parole. I do not believe that the sheriff . owed plaintiff or anyone else a duty to keep Dick incarcerated or out of circulation, or to prevent him from roaming at large in the , community, so that plaintiff or the general public would be protected from violence or -injury by the accused.

I agree with the majority that defendant either allowed Dick to leave the jail, or that he made “no real effort to recapture him.” The sheriff’s conduct or his failure to act, however, did not violate a duty to protect plaintiff from injury. Dick had the legal right to be released on bail, and if bail had been furnished the sheriff would have been compelled to release him whether Dick would or would not commit acts of violence on plaintiff or the general public. If the pending charges had been dismissed, or if Dick had been acquitted of those charges, the sheriff would have been powerless “to continue the prisoner’s incarceration,” even if plaintiff could show that that was necessary for the protection of the general public. The duty of the sheriff, I think, was solely to detain or hold Dick for the State, in the event he didn’t furnish bail, so that he would be present for the trial or hearing. The sheriff did not owe plaintiff a duty to keep Dick confined indefinitely in order that plaintiff and the public would be protected from possible harm.

In my opinion, my colleagues have erred in holding that defendant violated a duty to plaintiff by allowing Dick to leave the jail.

The second major error made by the majority, I think, is in holding that the release of Dick from the parish jail was a “cause-in-fact” of the harm suffered by plaintiff Prank. My colleagues dispose of that issue in two sentences, stating in substance that “but for” the release of Dick, plaintiff would not have been injured. I cannot agree with their reasoning. It would be at least equally as logical to reason that plaintiff would not have been injured “but for” the fact that Dick was released from the penitentiary after serving only one-third of his term, or “but for” the failure of plaintiff to arrest Dick earlier that evening when he observed him in the bar and knew that he recently had been arrested for parole violation. If Dick was well known to have such a “propensity for violence” that it constituted a danger to the general public for him to be allowed to roam at large, all as contended by plaintiff, then it seems to me that some duty rested on plaintiff and on his fellow officers to protect the public against Dick’s acts of violence earlier that same evening when they, or at least plaintiff, saw Dick roaming at large. It might be said that plaintiff would not have been injured “but for” the failure of the above city police officers to do their duty.

Negligent conduct is a “cause-in-fact” of harm to another only if it is a substantial factor in bringing about the harm. Every act leading up to the incident which causes the harm cannot be said to be a cause-in-fact of that harm. In order for the negligent act to constitute a cause-in-fact, there must exist some direct relationship between that act and the resulting injury. The act must have been a necessary ingredient which brought about the accident or injury. The injury or harm must have been the natural, probable and foreseeable consequence of the negligent act. It is not enough to reason simply that “but for” the negligent act the harm would not have been inflicted. Hill v. Lundin & Associates, Inc., 260 La. 542, 256 So.2d 620 (1972); Laird v. Travelers Insurance Company, 263 La. 199, 267 So.2d 714 (1972); Jones v. Robbins, 289 So.2d 104 (La.1974).

In the instant suit, the relationship between Dick’s release from jail and the shooting incident which occurred thereafter is so remote that his release cannot be said to be a cause-in-fact of plaintiffs injury.

As will be pointed out later, Dick had never before used a gun or a weapon of any kind, and he had never injured anyone. His use of a gun for the first time on September 11, 1971, which resulted in injury to plaintiff, simply was not the natural, probable and foreseeable consequence of his being released from jail.

In my opinion, the majority erred in holding that the release of Dick was a substantial factor in bringing about the harm to plaintiff.

A third major error made by my colleagues, I think, is apparent in their response to the question, “Was the risk and harm within the scope of protection afforded by the duty breached?” In answering that question affirmatively, the majority states that “one of the purposes, if not the main purpose, of the duty to keep L. J. Dick in custody was to protect against the risk that someone might be intentionally injured by him if he be permitted at large in the community.” In further answer to that question, the majority concludes, erroneously I think, that “Dick was a known criminal with a propensity for violence towards others,” and that it “was certainly a natural, probable and forseeable consequence” of his release that someone would be intentionally injured by him.

For the reasons already expressed, I do not agree that one of the purposes of detaining Dick in the parish jail was “to protect against the risk that someone might be intentionally injured by him if he be permitted at large in the community.” The sole purpose of incarcerating him was to make sure that he would be present at the trial.

I also differ with my colleagues in their finding that Dick had a “propensity for violence.” The evidence, as found by the majority, shows that Dick was convicted of only one felony in his lifetime, and that was of an offense which did not involve violence. That conviction occurred in October, 1969, when he was 19 years of age, and there is no showing that he committed one single act of violence, or even a misdemean- or, between that date and the date he injured plaintiff, almost two years later. His conduct while in the penitentiary must have been good, since he was released on parole as soon as he served one-third of his sentence.

Although Dick was under charges of committing another non-violent crime at the time he injured plaintiff, he was never tried for or convicted of committing that offense, and my colleagues thus cannot rightfully assume that he was guilty of committing another felony. I think they unwittingly have considered him to be guilty of the recent offense charged, because they base their holding that defendant knew that Dick had “violent propensities” at least partly on the ground that “The Sheriff was aware that Dick was awaiting trial on this latter charge.”

Dick also was never found to be a parole violator. And, neither was he an escapee or a fugitive from justice. The majority apparently feels that the filing of a “detainer” by the Parole Officer made, or helped to make, Dick a dangerous man, because they found that plaintiff was unaware of the danger and that he thus did not “assume the risk,” partly because he was not “cognizant of the issuance of the detainer by the Department of Probation.” I fail to see how the request for a detainer by the Parole Officer could give Dick a “propensity for violence,” whereas he apparently did not have any such propensity while he was free and at large for a period of at least two months prior to that time.

Prior to October, 1969, while Dick was 19 years of age or less, he was convicted of one or more misdemeanors in the Ville Platte City Court and perhaps in the District Court. The number of misdemeanor convictions is uncertain, but my review of the evidence indicates that the number ranged from one to a maximum of possibly five or six such offenses. One such conviction occurred in the City Court for a small theft, and he was simply placed on probation. A police officer of the city stated that he knew that Dick had gotten into five or six fights, but there is no indication as to how many convictions, if any, resulted from those fights.

Plaintiff testified that Dick threatened him with a knife on one occasion a few years before the incident involved here occurred. His testimony to that effect, however, is not supported by the other evidence. On that occasion, for instance, plaintiff did not arrest Dick and did not charge him with aggravated assault, although plaintiff was a police officer on duty at the time. He stated, in fact, that he has never arrested Dick. Plaintiff has known Dick most of the latter’s life, and with reference to Dick’s “propensity for violence,” Frank testified:

“Q. Actually, L. J. Dick, wasn’t any more dangerous than any other young person drinking at the bars?
A. That — not that I know. I know he was a guy that wasn’t going to stand for anything.
Q. Well, he was maybe hard headed on some occasions, is that right?
A. I know he wasn’t going to stand nobody bugging him because he was going to fight back for sure, regardless who it was.
Q. But he would fight with his fists?
A. Yeah.”

All other witnesses, including those called by plaintiff, testified that plaintiff was not dangerous, that he was not regarded as being violent, that he had never used a gun, a knife or a weapon at any time before September 11, 1971, and that on the occasions when he did get into fights at nightclubs or bars he fought only with his hands or fists, never with a weapon. The evidence does not show that he had ever injured anyone. In my view, there simply are no grounds on which the majority can base its conclusion that Dick had such a “propensity for violence” that it was dangerous for him to be allowed to roam at large in the community.

In my opinion, the' injuries sustained by plaintiff did not result from any fault or breach of duty on the part of the defendant sheriff.

For these reasons, I respectfully dissent.

      . Compare Green v. State of Louisiana, through the Department of Institutions, supra, where it was held that the duty breached did not encompass the particular risk involved where the plaintiff sustained injury as a result of the escapee’s negligent use of an automobile.
      We distinguish the case of Cappel v. Pierson, 15 La.App. 524, 132 So. 391 (La.App. 2nd Cir. 1931). In Cappel, which came before the court on an exception of no cause of action, plaintiff’s petition set forth the following pertinent allegations; that one E. B. Smith, adjudicated insane, was committed to the Central Louisiana State Hospital on January 29, 1929; that E. B. Smith escaped from the hospital on March 16, 1929, but was thereafter returned on November 8, 1929; that E. B. Smith was released from the hospital on the following day, November 9, 1929, by the superintendent, Dr. Pierson; that on the same day, November 9, 1929, following his release, E. B. Smith shot and killed Dr. Marvin Cappel. Plaintiff further alleged that defendant, Dr. Pierson released the inmate in violation of his duties as superintendent; that defendant knew at the time of the release that E. B. Smith was extremely dangerous and suffering with a mental disease; that defendant released the inmate without regard for the rights and safety of the public, and that defendant’s actions were negligent and the cause of Dr. Cappel’s death.
      It was conceded by the parties that the defendant, Dr. Pierson, had discretionary authority to release inmates of the hospital under parole, and that so long as defendant exercised his discretionary authority in good faith, he could not be held guilty of negligence.
      The court in Cappel found that as a matter of law, when defendant exercised his discretionary authority to release E. B. Smith, which authority was of a quasi-judicial nature, that defendant’s good faith could not be questioned. Accordingly the defendant could not be held negligent. This notwithstanding, the court in dictum further held that if the defendant’s good faith be questioned, and defendant’s actions found to be negligent, that his negligence in releasing E. B. Smith was not the proximate cause of the death of Dr. Cappel. It is this latter holding which is relied upon in the instant matter.
      Close inspection of the holding in Cappel reveals that it is easily distinguishable from the case at bar. The court in Cappel finding that defendant’s actions were not the proximate cause of the doctor’s death reasoned that the defendant’s release of E. B. Smith was strictly a matter of judgment, and that defendant could not by the exercise of ordinary care expect that Dr. Cappel’s death would follow as the natural result of his decision to discharge E. B. Smith. In the instant matter the defendant sheriff is not vested with discretionary power to release prisoners. Simply stated, his duty is to keep and detain prisoners in his jail. This being considered the inquiry into proximate cause, or duty-risk in the instant matter can obviously not be likened to that in Cappel. In Cappel the proximate cause inquiry arose as a result of the defendant’s misjudgment in exercising his quasi-judicial function. See Webb v. State of Louisiana, 91 So.2d 156 (La.App. 1st Cir. 1956). Also see Walker v. Interstate Fire & Casualty Insurance Co., 334 So.2d 714 (La.App. 2nd Cir. 1976), wherein the plaintiff brought suit against the sheriff of the parish for injuries she received when defendant’s prisoner, out of custody and known to be potentially dangerous, shot her. Plaintiff alleged that the sheriff was negligent in that he knew of the prisoner’s dangerous nature yet let him come and go to jail at will. Defendant sheriff filed an exception of no cause of action contending that the injury of which plaintiff complained was too remote to be attributable to the negligence of defendant sheriff. The court found that plaintiff stated a cause of action.


source: Caselaw Access Project

author: WATSON, Judge. HOOD, Judge

license: Public Domain

text:
    Jimmy HANDY et al., Plaintiffs-Appellees, v. Dewey LeJEUNE et al., Defendants-Appellants.
    No. 5781.
    Court of Appeal of Louisiana, Third Circuit.
    Jan. 31, 1977.
    Rehearing Denied March 2, 1977.
    Writs Refused April 22, 1977.

      Edwards, Stefanski & Barousse by Homer E. Barousse, Jr., Crowley, for defendants-appellants.
    Gravel, Roy & Burnes by T. Gerald Henderson, Alexandria, for plaintiffs-appellees.
    Before HOOD, DOMENGEAUX and WATSON, JJ.
   WATSON, Judge.

Defendants, Dewey LeJeune, The Permian Corporation and Employers Casualty Company, have appealed from a trial court judgment awarding plaintiffs, Jimmy and Virgie Handy, a total of $51,190 for the loss of their 14-year-old son, Albert Handy. Plaintiffs, Jimmy and Virgie Handy, have answered the appeal, asking that the amount awarded be increased to $100,000. We affirm.

The accident occurred on May 16, 1975, when a truck owned by the Permian Corporation and driven by its employee, Dewey LeJeune, collided with a small horse ridden by Albert Handy. Employers Casualty Company is the liability insurer of the Permian Corporation. The trial court concluded that both Albert and LeJeune were negligent but that LeJeune had the last clear chance to avoid the accident. Each of the parents was awarded $25,000 for the loss, and the father was awarded the funeral expenses of $1190.

The issues are:

1. whether the trial court’s conclusion that LeJeune was negligent is manifestly erroneous;
2. whether there is manifest error in the finding of contributory negligence on the part of Albert Handy; if none, whether last clear chance is applicable; and
3. whether the amounts awarded plaintiffs are so inadequate as to constitute an abuse of discretion.

Defendant LeJeune was the only surviving witness of the accident. He was driving north in a Mack truck on Louisiana Highway 95, at a speed of 45 m.p.h. The accident occurred about a mile and a half north of Church Point where the highway is straight and there are no obstructions to vision. It was daytime; the weather was clear. LeJeune said it was “hard to say” but estimated when deposed that he was approximately 100 yards from Albert and his horse when he first saw them and immediately observed that the horse was “spooked” (TR. 81). His testimony at trial also establishes that he knew the horse was scared when he first saw it, although parts of the testimony out of context give a contrary impression. Albert and the horse emerged from a pasture gate (located 200 feet from the point of impact) onto the south shoulder and then continued south. LeJeune reduced his speed. When he was about 50 yards from the boy and the horse, he blew his horn and applied his brakes. LeJeune testified that Albert Handy did everything he could to control his mount, but the horse kept on coming toward the middle of the road. Albert was riding bareback with a rope halter; he had the head of the horse pulled to the right, but the frightened animal did not respond. The impact occurred in the northbound lane, squarely in the middle of the truck. The horse was thrown into the southbound lane 89 feet from the point of impact, and Albert’s body came to rest in the northbound lane behind the truck. The unloaded truck, 51' 45/s" long, left 144 feet of skidmarks before the collision and 118 feet afterward.

Albert died on his birthday; he was born May 16, 1961. The horse had been owned by the Handys about a year. Albert rode the horse frequently, and the horse had never given him any trouble before the accident.

Mrs. Virgie Handy testified that she and her husband had had 11 sons and 6 daughters but they had lost 5 girls and 3 boys or eight of the 17, the last loss being Albert. Albert was a good, smart boy, who liked the junior high school he attended in Church Point. He was the Handys’ baby boy. It was stipulated that Jimmy Handy’s testimony about the parents’ loss would be substantially the same as that of Mrs. Handy.

Dewey LeJeune indicated that he first observed the boy and the horse when he was about 300 feet away. This estimate of distance is too low. The gate from which the horse emerged was 200 feet from the point of impact; the truck skidded 144 feet prior to the point of impact; and Le-Jeune admitted that he had traveled half the distance between them when he commenced braking. When LeJeune discovered Albert’s perilous situation, he had an opportunity to avoid the accident by immediately bringing his truck to a stop. The accident would not have occurred but for his failure to do so, which was a cause in fact of Albert’s death. Since LeJeune realized at first sight that the horse was not under control, he was under a duty to avoid colliding with or further frightening the animal. His admitted failure to stop when he saw the “spooked” horse and rider was a breach of this duty. LeJeune’s delayed reaction constituted negligence under the circumstances. A motorist’s duty vis-a-vis a frightened horse is set out in Plauche v. Consolidated Companies, 235 La. 692, 105 So.2d 269 (1958), where the court quotes 60 C.J.S. Motor Vehicles § 125, p. 718 as follows:

“He is under a like duty to exercise care with respect to a person riding a horse, and, if he sees or in the exercise of ordinary care should see that the horse is in a fretful and uncontrollable condition, it is his duty to use ordinary care to prevent his vehicle from further frightening the horse or colliding with him, and actually to stop his vehicle rather than to risk the most probable danger of collision by proceeding.” 105 So.2d 272.

The trial court’s reasons for judgment rely on Plauche in finding LeJeune negligent and state:

“LeJeune admitted that he saw the horse was ‘spooked,’ yet he continued to proceed down the road for a distance of 50 yards before blowing his horn or applying his brakes. He, therefore, breached his duty to avoid collision with Albert and his horse by failing to stop his truck at the first sign that the boy was unable to control his horse.” (TR. 43)

This analysis is not manifestly erroneous, and is supported by the evidence.

The trial court found Albert negligent for failure to control his horse. In view of the fact that Albert was riding without a saddle or bridle with only a rope halter to manage his mount, we agree that Albert was guilty of contributory negligence. Albert’s efforts to steer the horse away from the highway were negated by his lack of proper equipment. Contributory negligence on the part of Albert Handy was established by reasonable evidence. Compare the contrary finding in Joyner v. Williams, 35 So.2d 812 (La.App. 2 Cir. 1948), where there is no indication that the rider was not properly equipped since the opinion speaks of the horse being “reined”.

Finding both LeJeune and Albert negligent the trial court proceeded to succinctly and correctly analyze the doctrine of last clear chance in light of the factual situation. We find the analysis to be legally sound and factually supported by the evidence. Therefore, we will quote with approval from the reasons for judgment (TR. 44-45) as follows:

“The last issue to be determined is whether LeJeune had the last clear chance to avoid the accident, despite Albert’s contributory negligence. As stated by the Court in Ortego v. State Farm Mutual Automobile Insurance Co., 295 So.2d 593 (La.App. 3rd Cir. 1974), in order for plaintiffs to successfully invoke the doctrine of last clear chance, the evidence must clearly show:
‘(1) That plaintiff was in a position of peril of which he was unaware, or from which he was unable to extricate himself;
‘(2) that the defendant actually discovered or should have discovered, the plaintiff’s peril; and
‘(3) that at the time defendant actually discovered, or should have discovered, plaintiff’s peril, defendant had a reasonable opportunity to avoid the accident.’
“Clearly, the evidence supports each of the three requisites. Albert was in a position of peril from which he could not extricate himself. He had tried to steer his horse out of LeJeune’s path, but could not do so. LeJeune actually discovered Albert’s peril when he noticed that the horse was ‘spooked’ from a distance of 100 yards. LeJeune had a reasonable opportunity to avoid the accident, and could have done so, if he had applied his brakes when he first noticed that the boy could not control his horse.” (TR. 44-45)

We agree with the trial court that the doctrine of last clear chance is applicable and that plaintiffs are entitled to judgment on that basis.

No abuse of discretion is shown in the award of $25,000 to each parent for the loss of the child plus the award of $1,190 to Jimmy Handy for funeral expenses. There is no merit to the answer to the appeal urging that the award is inadequate. LSA-C.C. art. 1934; Ogaard v. Wiley, 325 So.2d 642 (La.App. 3 Cir. 1976); Bitoun v. Landry, 302 So.2d 278 (La., 1974); Coco v. Winston Industries, 341 So.2d 332 (La.1976).

For the foregoing reasons, the judgment of the trial court herein is affirmed. All costs of this appeal are taxed against de-. fendants-appellants.

AFFIRMED.

HOOD, J., dissents and assigns written reasons.

HOOD, Judge

(dissenting).

I cannot agree with the majority that Dewey LeJeune, the driver of the truck, was negligent or that he had the last clear chance to avoid the accident.

My colleagues find that LeJeune “knew the horse was scared when he first saw it,” although they admit that parts of his testimony “give a contrary impression.” They concede that LeJeune reduced his speed when he first saw the horse, but they hold that he did not apply his brakes until “he was about 50 yards from the boy and the horse.” Based solely on the finding that defendant delayed for a fraction of a second in applying his brakes, my colleagues conclude that he was negligent or that he had the last clear chance to avoid the accident.

With great respect, I suggest that the majority has drawn some erroneous conclusions from the established facts. One incorrect conclusion, for instance, is that Le-Jeune delayed for even an instant in applying his brakes after he observed that the horse was “spooked.” LeJeune is the only living eye witness to the accident, and his testimony as to how it occurred is uncontra-dicted. It is apparent even from the written record that that defendant was trying to be fair and accurate in his testimony, and I am sure that my colleagues will not take issue with that statement.

The defendant driver of the truck testified that when young Handy and his horse first came upon the shoulder of the highway, the horse began running at a gallop in a southerly direction on the west shoulder of the road. I think LeJeune made it clear that he did not detect that the horse was scared or unruly when it first entered the highway, but that he nevertheless reduced his speed immediately when the horse and rider came into his view, explaining that he did so “to prepare for a stop if I had to.” After the horse had travelled a short distance south on the shoulder of the road, LeJeune then noticed that the boy was having trouble controlling the animal. As soon as he made that discovery he immediately applied the brakes of his truck with great force, causing all of the wheels of that vehicle to skid until it came to a complete stop. LeJeune’s uncontradicted testimony is that he applied his brakes when he “saw the boy was in trouble.” He stated that “when I saw he (the horse) was out of the boy’s control, that’s when I applied my brakes real hard.”

Regardless of whether LeJeune noticed that the horse was scared when it first came upon the highway, or whether he made that discovery a moment later while the horse was running along the west shoulder of the road, the evidence is clear and unchallenged that he applied the brakes of his truck the instant he noticed that the boy was having trouble controlling the horse. I think my colleagues have erred seriously in ignoring the positive, uncontradicted testimony of the only eye witness to the accident that he applied his brakes the moment he detected that the boy was having trouble controlling the horse.

Another conclusion reached by the majority which I consider to be patently erroneous is that LeJeune did not apply his brakes until “he was about 50 yards from the boy and the horse.” The physical facts, as found by my colleagues, show that the truck was a much greater distance than that from the horse and rider when the brakes were applied. The majority found, for instance, that the truck skidded a distance of 144 feet before it struck the horse. Allowing a minimal reaction time, it is apparent that the brakes of the truck were applied more than 50 yards (or 150 feet) before it reached the point of impact. The horse and rider, of course, were a substantial distance north of the point of impact, and the truck was more than 150 feet south of that point, when the brakes of the truck were first applied. The horse was running at a gallop in a southerly direction, and the truck was being driven north. The horse travelled a substantial distance south between the time the brakes of the truck were first applied and the time the horse and the truck collided. Considering the established physical facts, therefore, it is apparent that the truck was much more than 50 yards from the boy and the horse when LeJeune “blew his horn and applied his brakes.”

The evidence does not show how fast the horse was running, nor does it show the average speed of the truck from the time the brakes were first applied until the collision occurred. The truck, however, was travelling at a speed of only 40-45 miles per hour before the horse entered the highway. The speed of the truck was then reduced, and thereafter the brakes were applied forcefully causing all of the wheels on the truck to skid 144 feet before the horse and the truck met and collided. The average speed of the truck must have been drastically reduced while it was skidding, and I think it would be unreasonable to conclude that the truck travelled much farther, or any farther, than did the horse during that brief period of time. It seems to me that the truck was at least 300 to 400 feet from the horse when the brakes of the truck were applied. The physical facts alone, therefore, show that the majority erred in holding that LeJeune “was about 50 yards from the boy and the horse” when he applied the brakes of the truck.

Assuming that LeJeune observed that the horse was scared the moment it emerged from the gate, as found by the majority, then I think the only duty which possibly could have rested on the truck driver was to stop his truck before it reached the gate. The evidence shows that the truck was brought to a complete stop at least 50 feet before the front of the truck reached the gate. I don’t think LeJeune was required to anticipate that the horse would gallop south on the highway and collide with the truck at a point 200 feet south of the gate. Certainly, the driver was not obligated to apply his brakes sooner than appeared to be necessary, until he saw that the horse was running south on the highway and that it thus was rapidly reducing the distance within which the truck had to stop. Le-Jeune unquestionably applied his brakes very shortly after the horse started running along the shoulder of the road.

Finally, the evidence shows that the accident would have occurred even if LeJeune had applied his brakes the instant the horse and rider emerged from the gate and entered on the highway. The majority has found, correctly, that the truck left skid marks for a total of 262 feet. The tires on that vehicle were good, and the highway was hard surfaced and was dry. The investigating officer testified that all of the wheels on the truck skidded evenly and that the brakes obviously were in good condition. If we add to the length of the skid marks a minimal reaction time, it becomes apparent that in order for the driver to have avoided a collision in this case, it would have been necessary for him to have reacted and to have applied his brakes when the truck was more than 300 feet from the point of impact. The point of impact was 200 feet south of the gate. The accident thus would have occurred even if the brakes of the truck had been applied when that vehicle was more than 500 feet from the gate. There is no evidence, physical or otherwise, which could justify a holding that the truck was a greater distance than that from the gate when the horse and rider entered on the highway.

This was a tragic accident, and I sympathize with plaintiffs, as do my colleagues. I cannot agree with the majority, however, that LeJeune was negligent in any respect or that he had “a reasonable opportunity to avoid the accident.”

For these reasons, I respectfully dissent.


author: SHORES, Justice. BEATTY, Justice

text:
    Anita OLIVER, by and through her Mother and Next Friend, Cathy Oliver, and Cathy Oliver, as the Mother of Anita Oliver v. Ernest C. BROCK et al.
    SC 1989.
    Supreme Court of Alabama.
    Dec. 30, 1976.
    Rehearing Denied Feb. 11, 1977.
    Richard W. Bell, of Bell, Johnson & Hill, Pelham, for appellant.
    McCoy Davidson, of Roberts & Davidson, Tuscaloosa, for appellees..
   SHORES, Justice.

Anita Oliver, through her mother, Cathy Oliver, brought suit against Bryan Whitfield Memorial Hospital of Demopolis, Dr. F. S. Whitfield, Dr. Paul Ketcham and Dr. E. C. Brock, alleging that the plaintiffs had retained Drs. Whitfield, Ketcham and Brock to treat her for injuries received as a result of an automobile accident. The allegations are that “. . . the Defendant, Ernest C. Brock, was consulted by the Defendants, F. S. Whitfield, and Paul Ketc-ham, as to the diagnosis of the Plaintiff’s injury, course of care and treatment to the Plaintiff, and the Defendant, Ernest C. Brock, responded by providing technical medical information to the Defendants, F. S. Whitfield and Paul Ketcham, for the diagnosis, care and treatment of the Plaintiff, Anita Oliver.”

The trial court granted Dr. Brock’s motion for summary judgment and the plaintiffs appealed.

The motion for summary judgment was supported by three affidavits, Dr. Brock’s own and that of Drs. Whitfield and Ketc-ham.

Dr. Brock’s affidavit stated:

“I am Ernest C, Brock, one of the Defendants in the above styled cause; I practice medicine in Tuscaloosa County, Alabama, and have been practicing medicine in Tuscaloosa for several years. I have never seen or talked to Anita Oliver or Cathy Oliver; I have never had Anita Oliver and Cathy Oliver as a patient. I have never been engaged or requested to serve as a consultant in the treatment of Anita Oliver, I was not employed or engaged to consult with the doctors treating Anita Oliver concerning her complaints or medical problems.

“I have never had Anita Oliver as a patient of mine; there has never been the doctor-patient relationship between Anita Oliver and myself; I have never been employed by the parents or guardians of Anita Oliver to treat, diagnose, or assist in any way in the care and treatment of Anita Oliver.

“I have never been employed, or associated by Dr. F. S. Whitfield or Dr. Paul Ketc-ham of Demopolis, Alabama, to consult with, diagnose or treat Anita Oliver.

“I know Dr. F. S. Whitfield of Demopolis and I have talked to him on the telephone on occasions in the past. During the year 1974 and the early part of 1975, Dr. Whitfield did not mention Anita Oliver’s name to me on the phone and I was not employed by him to assist in the treatment of Anita Oliver, or to act as a consultant with him in the treatment of Anita Oliver.

“Anita Oliver has never been my patient, she is not now my patient, I have never been employed or requested to care for or treat Anita Oliver and I have not been employed or requested to advise anyone with regard to her medical problems.”

Dr. Whitfield stated by affidavit:

“I am F. S. Whitfield, and I am one of the defendants in the above styled cause now pending in the Circuit Court of Tuscaloosa County, Alabama; I treated the plaintiff following an accident on or about October 1, 1974; that during the period plaintiff, Anita Oliver, was confined to the Bryan Whitfield Memorial Hospital as a patient, Affiant had the occasion to and did call Dr. Ernest C. Brock, a practicing physician in Tuscaloosa, Alabama, with reference to Dr. Brock’s recommendations concerning the care and treatment of another patient of Affiant; that during the course of such conversation, Affiant did describe generally the injuries of plaintiff and the type of treatment Affiant was then giving plaintiff, and Dr. Brock did indicate to Affiant that under the circumstances described he thought the treatment to be correct; Affi-ant did not disclose to Dr. Brock the name of the patient; Affiant’s discussion with Dr. Brock was gratuitous on his part and for the guidance of Affiant in connection with the treatment of plaintiff; Affiant did not employ Dr. Brock to care for or treat plaintiff and Dr. Brock did not care for or treat plaintiff to the knowledge of Affiant. In the discharge summary dictated by Affi-ant, Affiant did make note of the telephone conversation with Dr. Brock and of the suggestions made to Affiant by Dr. Brock but did not suggest and does not now suggest that Dr. Brock was in any way employed by him or the plaintiff in connection with the care and treatment of plaintiff or plaintiff’s injuries, and the fact is that Dr. Brock was not so employed and was never employed to care for or treat plaintiff’s said injuries or to advise anyone with regard thereto.” (Emphasis Supplied)

Dr. Ketcham’s affidavit follows:

“I am Paul Ketcham, and I am one of the defendants in the above styled cause now pending in the Circuit Court of Tuscaloosa County, Alabama; I treated the plaintiff following an accident on or about October 1,1974; I had absolutely no contact whatsoever with Dr. Ernest C. Brock, a practicing physician in Tuscaloosa, Alabama, concerning the care and treatment of the plaintiff, Anita Oliver, at any time during the period I participated in her care and treatment; Dr. Brock did not, so far as I am aware, have any contact with the plaintiff while she was a patient at Bryan Whitfield Memorial Hospital following said accident.”

In opposition to the motion for summary judgment, the following affidavit of Cathy Oliver, mother of Anita, was offered:

“AFFIDAVIT OF CATHY OLIVER IN OPPOSITION TO DEFENDANT ERNEST BROCK’S MOTION FOR SUMMARY JUDGMENT
“STATE OF ALABAMA! COUNTY OF SHELBYJ
“I, Cathy Oliver, being first duly sworn says:
“That I am the Plaintiff in the law suit involving Dr. Ernest C. Brock and that I am the Plaintiff who is suing Dr. Ernest Brock as the mother of Anita Oliver and as the next friend of Anita Oliver. That my daughter, Anita Oliver, was a patient in the Bryan Whitfield Memorial Hospital in October, 1974. While my daughter was a patient at that hospital, I became concerned regarding the care and treatment rendered or done by Dr. Whitfield and Dr. Ketcham. Dr. Whitfield told me that he would call Dr. Brock in Tuscaloosa to get some advise [sic] on how to treat my daughter’s injuries. Dr. Whitfield later told me that he had talked with Dr. Brock and that Dr. Brock told him that Dr. Whitfield was treating the injuries correctly and told him to continue the same treatment.
“I have reviewed the chart prepared by the Defendants stating the names of the doctors who treated my daughter. On a page marked ‘Discharge Summary’, I have read that Dr. Brock was consulted and assisted in prescribing the treatment for my daughter. I sincerely believe that Dr. Brock took part in the treatment of my daughter and that he is at fault for the serious injuries suffered by my daughter as a result of this treatment.
/s/ Cathy Oliver CATHY OLIVER
“Sworn to and subscribed before me this 2 day of June, 1975.
/s/ Dianna Dobbs NOTARY PUBLIC”

The question before us is whether, based upon the supporting affidavits, Dr. Brock has carried the burden placed upon a mov-ant for summary judgment to demonstrate that there is no genuine issue of material fact and that he is entitled to prevail on the motion as a matter of law. Stated differently, the issue is whether a triable issue exists as opposed to resolution of that issue.

A physician owes his patient the duty of due care in his treatment of that patient. That is not controverted. The question is whether there is any evidence to suggest that a physician-patient relationship was ever created between Dr. Brock and the plaintiff patient. The general rule is stated in 61 Am.Jur.2d, Physicians, Surgeons, and Other Healers, § 96:

“A physician is under no obligation to engage in practice or to accept professional employment, but when the professional services of a physician are accepted by another person for the purposes of medical or surgical treatment, the relation of physician and patient is created. The relation is a consensual one wherein the patient knowingly seeks the assistance of a physician and the physician knowingly accepts him as a patient. The relationship between a physician and patient may result from an express or implied contract, either general or special, and the rights and liabilities of the parties thereto are governed by the general law of contract, although the existence of the relation does not need to rest on any express contract between the physician and the person treated. However, the voluntary acceptance of the physician-patient relationship by the affected parties creates a prima facie presumption of a contractual relationship between them. A physician may accept a patient and thereby incur the consequent duties although his services are performed gratuitously or at the solicitation and on the guaranty of a third person. . . . ”

In the instant case Dr. Brock says that he has never seen Anita Oliver as a patient, or otherwise. He has never been engaged or requested to serve as a consultant in the treatment of Anita Oliver either by her parents or the doctors treating her. Dr. Ketcham concurs in this statement and Dr. Whitfield says that he called Dr. Brock on the telephone about another of his patients and, during the course of conversation, described generally the injuries suffered by Anita and the type treatment he was administering to her. Dr. Whitfield at no time disclosed to Dr. Brock his patient’s name, the conversation was completely gratuitous on his part, and he did not attempt to employ Dr. Brock to care for or treat the patient. He did not suggest that Dr. Brock was in any way requested to advise anyone with respect to the treatment being given the plaintiff.

Mrs. Oliver says only that she became concerned about her daughter and that Dr. Whitfield told her he would call Dr. Brock to get some advice as to treatment. She says that he later told her that he had talked with Dr. Brock and “. . that Dr. Brock told him that Dr. Whitfield was treating the injuries correctly.”

We fail to see any evidence from which it could be concluded that Dr. Brock has consented to treat the child, or any from which it could be inferred that he consented to act in a consulting capacity. Mrs. Oliver’s statements to the effect that Dr. Whitfield told her that Dr. Brock told him that Dr. Whitfield was treating the injuries correctly, and that she believes that Dr. Brock took part in the treatment, falls short of the kind of evidence required by ARCP 56(e). This rule provides that when affidavits are used to support or oppose a motion for summary judgment “. shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein.” (Emphasis Supplied)

These requirements are mandatory. Sartor v. Arkansas Natural Gas Corp., (La.1944), 321 U.S. 620, 64 S.Ct. 724, 88 L.Ed. 967. Mrs. Oliver states in her affidavit that she “sincerely believes” that Dr. Brock took part in the treatment of her daughter. However, it has been held that belief, no matter how sincere, is not equivalent to knowledge that a statement in an affidavit that the affiant verily believes does not satisfy the requirements of Rule 56(e). Jameson v. Jameson, 85 U.S.App.D.C. 176, 176 F.2d 58 (1949). Apart from her belief that Dr. Brock took part in the treatment of her daughter, Mrs. Oliver offers only the hearsay statements of Dr. Whitfield, who told her that Dr. Brock told him that he was treating the child correctly. Dr. Whitfield denies that he ever asked Dr. Brock to take part in the treatment of the child and denies that Dr. Brock did so. He admits making only a casual reference to the condition of this patient in the abstract, without mentioning her name, during the course of a conversation with Dr. Brock about another patient, and that based upon his description of the injury and treatment, Dr. Brock responded that the treatment seemed to be correct. Whether or not a physician-patient relationship exists depends upon the facts in each case, but some facts must be supplied to support a conclusion that the relationship has been created. In this case, there are no facts which can support the conclusion that the relationship ever existed between Dr. Brock and the patient. Mrs. Oliver contends in her affidavit that she has reviewed the chart prepared by the defendant physicians stating the names of the doctors who treated her daughter. She says she has read on the “discharge summary” that Dr. Brock was consulted and assisted in prescribing the treatment of her daughter. However, that document is not made a part of the record. ARCP 56(e) requires that sworn or certified copies of all papers or parts thereof referred to in an affidavit (in support of or in opposition to a motion for summary judgment) shall be attached thereto or served therewith.

“. . . This means that if written documents are relied upon they actually must be exhibited; affidavits that purport to describe a document’s substance or an interpretation of its contents are insufficient. . . . ” Wright & Miller, Federal Practice and Procedure: Civil § 2722.

There is nothing in this record to support the allegation that Dr. Brock took any part in the treatment of Anita Oliver, by way of advising her physicians, or otherwise. The judgment of the trial court in granting motion for summary judgment on his behalf is, therefore, affirmed.

AFFIRMED.

HEFLIN, C. J., MADDOX and FAULKNER, JJ., and SIMMONS, Retired Circuit Judge, sitting by designation of the Chief Justice, concur.

BEATTY, J., concurs specially.

BEATTY, Justice

(concurring specially):

The mere discussion between professional people of hypothetical situations cannot be viewed as a basis for liability. To hold otherwise would tend to adversely affect the quality of the services they offer to members of the public. Physicians, lawyers, dentists, engineers, and other professionals, by comparing problem-solving approaches with other members of their disciplines, have the opportunity to learn from one another. Possessing this freedom, they are better positioned to bring theory into practice for the benefit of those whom they serve. Our decision in this case preserves these essential learning situations for all professional people.


author: JONES, Justice.

text:
    Jeffery G. KEAN et al. v. Louis M. HILL.
    CER-9.
    Supreme Court of Alabama.
    Jan. 14, 1977.

      W. Stanely Rodgers, of Ford, Caldwell, Ford & Payne, Huntsville, for appellant-defenders.
    Danny D. Henderson, of Camp, Williams, and Spurrier, Huntsville, for appellee-plain-tiff.
   JONES, Justice.

The Petition for Certification (for a determination of the status of the law of Alabama) of the United States District Court for the Northern District of Alabama, granted by this Court pursuant to § 6.02, Constitution of Alabama (Constitutional Amendment No. 328), is set forth, in pertinent part, as follows: “Statement of Facts:

“This is a lawsuit growing out of a two-vehicle collision which occurred within the confines of a United States Government Reservation, Redstone Arsenal, in Madison County, Alabama, on February 5, 1975. The plaintiff, a resident and citizen of Madison County, Alabama, Louis M. Hill, was a passenger in one vehicle and claims to have been injured as a result of negligence on the part of defendant Jeffery G. Kean, a nonresident of the state of Alabama and driver of the other vehicle. Plaintiff Hill alleges that defendant Kean negligently allowed the vehicle he was driving to collide with the vehicle in which Mr. Hill was a passenger. Plaintiff Hill further alleges that his injuries resulted from negligence on the part of defendant Brian R. Te-treault, also a nonresident of the state of Alabama, and owner of the vehicle driven by Mr. Kean, in that Mr. Tetreault negligently entrusted the vehicle to Mr. Kean. Both defendants were stationed at Red-stone Arsenal at the time the accident occurred.

“The plaintiff, a resident of the state of Alabama, filed suit in the United States District Court for the Northern District of Alabama against defendants Kean and Te-treault, both of whom are nonresidents of the state of Alabama, claiming an amount of damages exceeding the sum of $10,000. Both defendants received service of process in accordance with Rule 4 of the Federal Rules of Civil Procedure, and consequently Rule 4 of the Alabama Rules of Civil Procedure. Mr. Tetreault, a resident of the state of Texas, has answered the complaint and filed motions relating to discovery. Mr. Kean, a resident of the state of Kansas, has filed a motion to dismiss the complaint or in the alternative to quash the service of process upon him based upon several allegations, one of which is that service of process was insufficient since the accident made the basis of the suit occurred within the confines of Redstone Arsenal, a United States Government installation, on a highway which is not a public highway within the meaning of Rule 4(b)(8)(C) and (D) of the Alabama Rules of Civil Procedure.

“The Supreme Court of Alabama’s certification on the following questions of law would be most helpful to this court in its assessment of the motion presently pending.

“Questions for certification:

“(1) Is a highway within the confines of a United States Government installation a public highway within the meaning of Rule 4(b)(8)(C) of the Alabama Rules of Civil Procedure, therefore subjecting a nonresident operator or owner of a vehicle involved in an accident on such a highway to service of process through the Secretary of State of Alabama, pursuant to Rule 4(b)(8)(C) of the Alabama Rules of Civil Procedure as authorized by Rule 4(d) of the Federal Rules of Civil Procedure?

“(2) Does an accident which occurs on a highway within the confines of a United States Government installation constitute the doing of such an act as to subject a nonresident operator or owner of a vehicle involved (such as the military personnel involved as defendants in this case) to service of process through the Secretary of State of Alabama, pursuant to Rule 4(b)(8)(B) of the Alabama Rules of Civil Procedure as authorized by Rule 4(d) of the Federal Rules of Civil Procedure?”

Because this Court answers Question No. 1 in the affirmative, we will pretermit any consideration of Question No. 2.

Two factors, material to our consideration, are apparent from the statement of Question No. 1.

1) The issue of territorial jurisdiction is not included within the certification. Thus, our affirmative response presupposes that the office of the Secretary of State (the State agency charged by old Rule 4(b)(8)(C) to effect service of process on non-resident defendants) is not without territorial jurisdiction to perform its ministerial function.

2) Although this diversity of citizenship suit had its origin in the Federal District Court, there is no body of Federal law, substantive or procedural, sufficient unto itself, by which process may be served on the defendants. Rule 4(d), Federal Rules of Civil Procedure, authorized service of process under the law of the forum.

When thus analyzed, the question reduces itself to a single point: For purposes of Rule 4(b)(8)(C), ARCP, is the highway within the confines of Redstone Arsenal, a United States Government military reservation on which the automobile collision in question occurred, a public highway?

Rule 4(b)(8)(C), ARCP, reads:
“[The Secretary of State shall be deemed to have been appointed as agent for service of process upon] [a]ny non-resident who operates a motor vehicle on a public highway in this state . provided that the authority of the Secretary of State to receive service of process for such non-resident shall be limited to process in actions against such non-residents growing out of any accident or collision in which such nonresident . . shall be involved while being operated on a public highway of this state . .”

While neither the Rule, nor the statutes which it supersedes, defines “public highway,” we believe its definition can be readily ascertained from the spirit and philosophy of the Rule. The Alabama Supreme Court is committed to the proposition that the scope of substituted service is as broad as the limits of constitutional due process. Boyd v. Warren Paint & Color Co., 254 Ala. 687, 49 So.2d 559 (1950); New York Times Company v. Sullivan, 273 Ala. 656, 144 So.2d 25 (1962). That this Court, in adopting the substituted service provisions of Rule 4 (originally and as amended), intended to perpetuate and to further this general purpose cannot be seriously challenged.

It is within the context of this broad and liberal philosophy, limited only by due process considerations, then, that we hold this highway to be a public highway, as contemplated by Rule 4(b)(8)(C). The term “public highway,” where not restricted in its definition by the Rule itself, must be broadly interpreted so as to include all those highways not private; i. e., all those highways which do not fit into the opposite definition — “private”—must be said to be public for the beneficent purpose of the procedural rule for substituted service.

While we have used the broadest concept for defining “public highway,” we hasten to point out that we do no violence to statutory or case law in this area. For example, Title 36, § 1(12), Code, states:

“ . . . The term ‘highway’ shall not be deemed to include a roadway or driveway upon grounds owned by private persons.” (Emphasis added.)

Title 51, § 692, Code, contains this definition:

“ ‘Public highway’ means every highway, road, street, alley, lane, court, place, trail, drive, bridge, viaduct or trestle . and laid out or erected as such by the public or dedicated or abandoned to the public or intended for use by or for the public. The term ‘public highway’ shall apply to and include driveways upon the grounds of universities, colleges, schools and institutions, but shall not be deemed to include private driveways, private roads or private places not intended for use by the public.” (Emphasis added.)

This Court, in Holz v. Lyles, 287 Ala. 280, 251 So.2d 583 (1971), defined a public highway as being “[0]ne under the control of the public, dedicated by the owner or used by the public for 20 years or established in á regular proceeding, and every public thoroughfare is a highway.”

Thus, a public highway has been defined as that which is not private and that which is generally intended for public use.

The central thrust of the defendant/appellant’s argument is that the highway on which the wreck in question occurred was on a United States Government military reservation. But this contention reveals its own weakness when tested by the public versus private standard. Indeed, it would be difficult to conceive of a more public, or less private, roadway or thoroughfare than one that is built, maintained, and owned by all the citizens of the United States, and whose general purpose is for public use.

Defendant/appellan^ argues further the fact that the highway-entrances to the installation are guarded by military police stations, and, thus, the usage of the highway is controlled, rather than unrestricted, is significant to our consideration. We find no such factual statement included in the certification petition. Moreover, assuming the highway is restricted in its use to certain classes of the public (e. g., military personnel, civilian employees, and visitors on official business), such restrictions could not render the highway private as opposed to public.

For the reasons stated, we answer Question No. 1, “Yes.”

All the Justices concur.

      . The current procedure (adopted since this cause of action arose) for serving process on non-resident defendants is provided by new Rule 4.2.


author: BLOODWORTH, Justice.

text:
    ALABAMA POWER COMPANY v. Joe A. HAMILTON and Louise B. Hamilton. Joe A. HAMILTON and Louise B. Hamilton v. ALABAMA POWER COMPANY.
    SC 1867 and SC 1867-X.
    Supreme Court of Alabama.
    Feb. 4, 1977.

      Marshall Timberlake, Balch, Bingham, Baker, Hawthorne, Williams & Ward, Birmingham, and Lee Bains, Bessemer, for appellants and cross-appellee.
    J. William Thomason, Bessemer, William M. Dawson, Jr., Birmingham, for appellees.
   BLOODWORTH, Justice.

This is an appeal and cross-appeal from a judgment granting Alabama Power Company the right to condemn certain property in Jefferson County for a transmission line right of way and awarding defendants Hamilton, the landowners, $33,600 damages. The Power Company appeals from the amount of the award. The landowners cross-appeal from the trial court’s determination that Alabama Power Company had the right to condemn their property. Landowners also move for a dismissal of the appeal. We deny landowners’ motion to dismiss the appeal and affirm the trial court’s judgment granting the right to condemn and awarding damages.

MOTION

Landowners contend the Power Company’s appeal should be dismissed because the Power Company did not appeal within 30 days after the entry of final judgment as provided by Tit. 19, § 23, Code of Alabama 1940. They argue that the provisions of Tit. 19, § 23, as to the time for filing an appeal were not modified by the adoption of Rule 4(a), ARAP.

Appendix III, ARAP, indicates that Tit. 19, § 23, is modified by adoption of ARAP. Moreover, Rule 4(a) states:

“(1) Except as otherwise provided herein, in all cases in which an appeal is permitted by law as of right to the Supreme Court or to a court of appeals, the notice of appeal required by Rule 3 shall be filed with the clerk of the trial court within 42 days (6 weeks) of the date of the entry of the judgment or order appealed from. . .” [Emphasis supplied.]

See Acts of Alabama, 1971, No. 964, Vol. Ill, p. 1722 [Tit. 13, § 17(1), 1973 Cumulative Supplement],

Under Tit. 19, § 23, this is a case in which appeal is permitted as of right to the Supreme Court. Notice of appeal was filed within 42 days of the denial of the motion for a new trial. Consequently, we overrule the landowners’ motion to dismiss the appeal.

MERITS

Alabama Power Company’s Appeal

The Power Company contends that several reversible errors were committed in the trial of this case and that these errors resulted in an excessive verdict.

I. Alabama Power argues that testimony by the landowners’ expert witness which incorporated potential lost profits from a loss of lots in a nonexistent subdivision was inadmissible and resulted in an excessive verdict.

The property in question consisted of two parcels containing about 186 acres of undeveloped pasture land and timberland located about two miles outside the city limits of Bessemer. No steps had ever been taken to subdivide the property or to prepare it for subdivision. The total acreage within the right of way over the two parcels is 7.658 acres.

The landowners’ expert, Mr. Barnes, testified concerning the possible subdivision of the property and estimated the landowners’ damages at $41,500. On cross-examination, he stated that he included loss of future profits on lots in his estimate. Further testimony indicated that his estimate was based on the total loss of the usefulness of the property.

Our rule relative to this issue is stated in Thornton v. City of Birmingham, 250 Ala. 651, 655, 35 So.2d 545, 547 (1948):

“. . . Evidence of value of the property for any use to which it is reasonably adapted is, as already stated, admissible but the proof must be so limited and the testimony restricted to its value for such purpose. Of probative tendency on this issue is the offer of a proposed plan or a possible scheme of development, and the trial court so held, but it was not permissible to incorporate in such a plan the speculative price of the individual lots. . . .We note the following pertinent statement from [2] Nichols on Eminent Domain, [2d Ed.,] supra:
“ ‘As bearing upon these issues [market value] the owner may offer a plan showing a possible scheme of development for the purpose for which it is most available, but he cannot go further and describe in detail to the jury a speculative enterprise for which in his opinion or that of some expert the land might be used, and base his estimate of value upon the profits which he would expect to derive from the enterprise.’ (P. 1170)”

Landowners’ witness Barnes testified that the highest and best use of the property was development as “single family, residential or estate size lots.” On the other hand, Alabama Power’s appraisers testified that the property had no value as a site for a subdivision and that the best use was agricultural. This conflict presented a jury question as to the highest and best use of the property.

Since there was testimony to the effect that the property was reasonably suited for development as a subdivision, testimony concerning its value for that purpose was admissible. Alabama Power contends that Barnes’ means of arriving at his opinion of the value of the property made his testimony inadmissible under Thornton. We do not agree.

There is no indication that Barnes based his opinion on the speculative valuation of individual lots. His statement that his estimate included loss of future profits or lots was, at best, ambiguous. In view of his later statement that his estimate was based on the total loss of usefulness of the property, we do not think that we must necessarily conclude that his first statement meant that he had arrived at his estimate by giving a value to individual fictitious lots. Furthermore, there was no testimony as to the price of individual lots.

We note also that, although the trial court overruled Alabama Power’s motion to exclude the whole of Barnes’ testimony, the trial court did exclude testimony concerning any possible profit and observed that there had been no testimony of any lots on a map or plat, fictitious or otherwise.

We find no error in the trial court’s refusal to exclude the entire testimony of Barnes.

II. Alabama Power also contends that the landowners’ persistent attempts to introduce evidence concerning subdivisions in the area of the subject property over the sustained objections of Alabama Power was, in its cumulative effect, ineradicable and resulted in an excessive verdict.

The landowners questioned Mr. Barnes concerning certain subdivisions in the Bessemer area and the sale of lots in those subdivisions. The court sustained Alabama Power’s objections to some questions concerning such subdivisions.

The landowners argue that there has been no showing of prejudice and that the jury’s verdict was within the bounds of the highest and lowest estimates of damages in evidence.

We have examined the record of the questioning complained of and find that the record does not support Alabama Power’s contention that the landowners’ questions concerning subdivisions in the Bessemer area were so persistently repeated as to have prejudiced Alabama Power’s case. The trial court did not forbid all questions concerning subdivisions in the Bessemer area, and the landowners did not ask the same improper questions repeatedly. Rather, the questions to which objections were sustained were, for the most part, different from previous questions which the court had refused to permit.

III. Alabama Power contends that the trial court erred in sustaining the landowners’ objections to Alabama Power’s cross-examination of one of the landowners with regard to the tax assessment of the property to test his memory or recollection and with regard to the reasons or basis for his valuation of the land.

The landowners respond that the questions asked were argumentative and repetitious and that other questions and answers covered the same testimony. Moreover, the landowners contend that the questions concerned assessments made seventeen years before and were too remote to have any probative value. We agree.

Evidence of tax assessments is not admissible to prove the value of the property taken, but is admissible to show an admission against interest, to test the witness’ credibility, and to test his judgment of value and his memory. Etowah County v. Clubview Heights Co., 267 Ala. 355, 357, 102 So.2d 9 (1958). But, as Etowah seems to imply, rejection of such evidence, even when offered for a proper purpose, is not necessarily reversible error.

“In condemnation cases, to justify a reversal of the condemnation award, the reviewing court must conclude that substantial prejudice resulted. . . . ”

State v. Rigas, 282 Ala. 541, 543, 213 So.2d 386, 387 (1968). See also Rule 45, ARAP.

The record shows that the landowner’s testimony as to the damages to his property was $60,400. Mr. Barnes testified that the damages amounted to $41,500. Mr. Maloy, a real estate agent concerning whose testimony no error has been argued by Alabama Power, testified that the damages amounted to $61,000. The verdict was for $33,600. In view of these circumstances, and upon our review of the evidence, error, if any, in sustaining the landowners’ objections to Alabama Power’s questions regarding the tax assessment or regarding the basis for the landowners’ valuation cannot be said to have resulted in substantial prejudice and to have amounted to reversible error.

IV. Alabama Power also contends that the trial court erred in refusing to declare a mistrial because of the landowners’ closing argument with regard to the difference in the economic positions of the parties. The landowners contend that the portion of the closing argument in the record fails to disclose the context of the argument in question and that the argument was actually made in response to argument by Alabama Power, whose attorney had originally raised the matter.

The following exchange is all that the record contains concerning the landowners’ argument and the context in which it was made:

“MR. THOMASON: The Alabama Power Company wants to say, ‘Well, we’re real nice folks and want to be fair, we’re just serving the public.’ Well, they are not. They’re out to make a profit and that’s all they’re out to do. They say, ‘We want to be fair to Mr. Hamilton but Mr. Hammlton wants to raid us.’ Mr. Hamilton, according to them, has $500,-000 worth of property and wants to raid this poor little old Alabama Power Company, this little conglomerate of five utilities—
“MR. BAINS: We ask for a mistrial, Your Honor. This is not argument or rational argument or legal. He has already over extended the boundaries of reason and the boundaries of law and we move for a mistrial.
“THE COURT: At this time I’ll overrule your motion for a mistrial, but Mr. Thomason, if you will refrain from referring to the disparity of the two parties.
“MR. THOMASON: They refer to Mr. Hamilton’s wealth.
“THE COURT: I’ll overrule your motion.”

The statements of Mr. Thomason, the landowners’ attorney, indicate that he was responding in kind to an argument made by Alabama Power. Alabama Power has not challenged the landowners’ claim that Alabama Power had previously referred to the wealth of Mr. Hamilton, one of the landowners.

We find no error in the trial court’s overruling Alabama Power’s motion for a mistrial for the same reasons which this Court gave in Alabama Electric Co-operative, Inc., v. Partridge, 283 Ala. 251, 256, 215 So.2d 580, 584 (1968):

“It would appear from the record that the entire argument of appellants, or the language that plaintiff’s (appellee’s) counsel contended he was answering ‘in kind,’ was not set out in the record. We hold that because the exact language is not set out in the record, that is the exact language that was used by defendants (appellants), and was being answered ‘in kind’ by appellee (plaintiff), the record thereupon being incomplete, this court is not in a position to say that the judgment of the trial court in overruling the motion for a new trial on this point was erroneous, and certainly should not have been the basis for overcoming the presumption in favor of the conclusions of the trial court. Nothing in the record discloses that the trial court’s ruling on this aspect of defendants’ motion for a new trial was plainly erroneous or manifestly unjust.

V. Alabama Power contends that the trial court erred in refusing to grant the following requested written charges:

“9. The Court charges you, ladies and gentlemen of the jury, that the landowners in this case may offer a plan showing a possible scheme of development for the purpose for which the land is most suitable, but they are not permitted to incorporate in such a plan the speculative price of the individual lots.”
* * * * * *
“17. The Court charges you, ladies and gentlemen of the jury, that the burden is on the landowners in this case to satisfy you that their lands adjacent to the right of way condemned have been damaged, and if your minds are left in a condition of doubt or uncertainty as to whether or not such adjacent lands have been damaged, or to the nature and extent thereof, then you shall not award anything as damages to such adjacent lands. * * * ” [Emphasis supplied.]

The landowners respond that the charges given by the trial court adequately and correctly stated the law.

Charge number 17 is faulty. Its language concerning doubt or uncertainty being left in the minds of the jurors places too great a burden of proof on the landowners. Parker v. Williams, 289 Ala. 466, 471, 268 So.2d 746 (1972). The burden on the landowners was to prove their damages to the reasonable satisfaction of the jury, but as stated in Alabama Great Southern R. R. Co. v. Hill, 93 Ala. 514, 527, 9 So. 722, 727 (1890):

“ . . . The mind may be reasonably satisfied of a given fact, and yet not be certain of it, nor free from doubt in respect of it . .

In Hill, this Court upheld the trial court’s refusal of a charge which instructed the jury to find against the plaintiff if they were in doubt and uncertainty concerning certain essential facts. The trial court did not err in refusing requested charge number 17.

Assuming that requested charge number 9 is a correct statement of the law under Thornton v. City of Birmingham, supra, we find no reversible error in its refusal in light of the following portion of the trial court’s oral charge:

“In determining what is just compensation, you may consider the uses to which the property is reasonably adapted, though the property is not presently so used, as the landowner is entitled to have the value of the property determined based on his highest and best use. If you are reasonably satisfied that there existed a prospective use affecting the value of the property at the date of the taking, that is an element for your consideration, but you should not consider speculative or imaginary uses of the property or merely speculative plans of the property owner, which was the 12th day of October, 1973. That is an element for your consideration, but you should not consider speculative or mere speculative plans of the property owner.”

Although this charge does not mention incorporation of the speculative price of individual lots, it adequately covers the principal involved.

The Landowners’ Cross-Appeal

On cross-appeal, the landowners challenge Alabama Power’s right to condemn their property. They urge this Court to overrule its prior decisions by holding that the legislature has, by the passage of legislation which effectively grants all power to utility companies to determine how, when, and what private property will be taken, unlawfully delegated its legislative function to a body which lacks impartiality and has, in violation of the U.S. Constitution, sanctioned the taking of private property without due process of law.

The rule of law which the landowners urge us to overturn is stated in Berry v. Alabama Power Co., 257 Ala. 654, 657, 60 So.2d 681, 683 (1952):

“The general principle is well established that the delegation of the power of eminent domain to a grantee, without restriction, carries with it the power to locate the route, and its location or necessity will not be interfered with by the courts if it is made by the utility in good faith and is not capricious or wantonly injurious. [Citations omitted.]”
“ . . . Necessity to condemn is a legislative question, not judicial. It is granted by statute to petitioner [Alabama Power Co.] . . . The province of the court is to see that the right is not abused. . . . ”

Berry clearly recognizes that the legislature has delegated certain powers to public utilities. See Code of Alabama 1940 (Recompiled 1958), Tit. 10, §§ 74, 181, Tit. 48, §§ 336(1) — (2); 1973 Cumulative Supplement, Tit. 10, §§ 71, 75. The landowners assert that granting public utilities the power to determine the necessity for exercising their power of eminent domain over particular property is an unlawful delegation of legislative power.

The legislature is authorized by § 23 of the Alabama Constitution 1901 to provide for and regulate by general laws the exercise by persons and corporations of the rights of eminent domain. If the exercise of these rights is to be authorized and regulated by general laws, the decision as to whether the condemnation of a particular piece of property is necessary must, of necessity, be made outside of the legislature. The power must be delegated. The landowners contend that the power should be delegated to an impartial governmental agency or to the courts, not to the interested private entity itself.

A similar argument was made in Porter Coal Co. v. Davis, 231 Ala. 359, 165 So. 93 (1935). The legislature had enacted a statute which gave to the miners employed and working in a coal mine the power to furnish a check weighman and which directed the operator of the coal mine to give the weigh-man access to the mine’s scales, measures, weights, and accounts and to permit him to examine them. Defendant, an operator who had prevented plaintiff, a weighman, from carrying out his duties, contended that the statute unlawfully delegated to the miners the power to exercise their discretion in enforcing the statute. Rejecting the operator’s argument, this Court said:

“ ‘. . . The legislature cannot delegate its power to make a law, but it can make a law to delegate a power to determine some fact or state of things upon which the law makes or intends to make its own action depend. To deny this would be to stop the wheels of government. There are many things upon which wise and useful legislation must depend which cannot be known to the lawmaking power, and must therefore be a subject of inquiry and determination outside of the halls of legislation.’ United States v. Grimaud, 220 U.S. 506, 31 S.Ct. 480, 484, 55 L.Ed. 563; Bailey v. Van Pelt, 78 Fla. 337, 82 So. 789; Field v. Clark, 143 U.S. 649, 12 S.Ct. 495, 36 L.Ed. 294.” [Emphasis supplied.]

231 Ala. at 362, 165 So. at 95.

By analogy to Porter Coal, we conclude that the constitutional prohibition against the delegation of legislative power to make a law does not forbid the legislature’s making a law which permits the exercise of reasonable discretion by grantees of the power of eminent domain in determining the necessity for condemning particular lands.

The landowners further argue that under Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972), they are entitled to a hearing prior to being deprived of their property. Apparently, they mean that there must be a hearing to determine the necessity of the condemnation proposed, for Tit. 19, Chapter 1, already provides for a hearing in the probate court prior to condemnation. As we have already stated, the determination of necessity is a legislative matter that may be delegated to the grantee of the power of eminent domain. The courts will not interfere in this determination in the absence of abuse.

To conclude this issue, we find no constitutional impediment to the legislature’s permitting a grantee of the power of eminent domain to determine the necessity for condemning particular lands.

AFFIRMED.

JONES, ALMON and EMBRY, JJ., and SIMMONS, Retired Circuit Judge, sitting by designation of the Chief Justice, concur.