text:
    Robert J. BERNHARD et al. v. Darryl J. TSCHIRN.
    No. 9714.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 8, 1978.

      John M. Robin, Metairie, for defendant-appellant.
    Irl R. Silverstein, Gretna, for plaintiffs-appellees.
    Before SAMUEL, GULOTTA and BEER, JJ.
   BEER, Judge.

Appellant, Tschirn, owns lots 11, 12 and 13 in Rivage Subdivision. His home is on lot 13 (at the corner of Rivage Court and Richland Avenue) and faces Richland Avenue. A pool, patio and tennis court have been built on lot 12 and part of lot 13, and a substantial portion of that area is enclosed by 10-foot-high chain link fencing of a unique design.

Appellees are homeowners in the Rivage Subdivision who have obtained injunctive relief in the district court from Tschirn’s alleged violation of duly recorded Rivage Subdivision building restrictions.

The district court concluded, inter alia, that Tschirn’s “portable” fence violated certain subdivision restrictions and required its removal. Tschirn suspensively appeals, contending error in the trial judge’s conclusion that the structure in question is a “fence” rather than a “gate.” He also argues that a concrete slab, poured in an area which includes parts of lots 12 and 13, converted those lots into one piece of property insofar as subdivision restrictions may be concerned. In support of this singular contention, he relies upon the written reasons for judgment by the First Parish Court for the Parish of Jefferson in criminal proceedings entitled “State of Louisiana v. Darryl Tschirn.” Since those proceedings resulted in a verdict that Tschirn was not guilty of having violated Section 7-C-l of Jefferson Parish Ordinance 3813, he contends that the minimum set-back restriction which applies to front yard fences can not be applicable here. Specifically, he avers that the judgment of the First Parish Court established a binding conclusion that lot 12 is, by reason of that verdict, now the rear yard of the parcel of ground which fronts on Rich-land Street.

The record shows that the structure in question is made up of ten-foot-high chain link sections which can, in fact, be moved about. The chain link sections can be clamped onto pipes which allow the sections to pivot. Clear photographs of the structure taken from various views were admitted into evidence and are available for a reviewing court. We have examined them in conjunction with our consideration of the testimony of the witnesses and find no error in the trial judge’s factual conclusion that the structure is, for all pertinent circumstances, a fence.

Likewise, we find no error in the trial court’s conclusion that lot 12 fronts on Rivage Court and has not been “fused” or “welded” (as appellant contends) to lot 13 so as to change its status with respect to situations covered by the subdivision restrictions.

The uneontroverted subdivision restriction provides that:

“No fence will be allowed to be erected, placed or altered on any lot nearer than the minimum front building setback line. Ornamental side and rear fences up to the building setback line are permitted but shall not exceed six feet above mean lot elevation or site grade. The above requirements apply to wing walls or similar ornamental wall construction. No featheredge or plain board fence may be erected.”

John J. Avery, Jr., a civil engineer, was qualified as an expert witness and testified that the fence encroaches on the minimum front set-back line of lot 12 by thirteen one hundredths of a foot and, further, that the height of the chain link fence ranges at various points, from 9 feet 11 inches to 10 feet 9 inches.

Although the minimum set-back requirements, as they are properly applied to the fence located across the front of lot 12, have been violated, that violation is minimal indeed and would not, standing alone, support a remedy as harsh as that imposed by the judgment with which we are here concerned. At no point does the fence deviate from the twenty-foot set-back requirement by more than an inch or two, and, under the circumstances, we consider this to be an insignificant, minor violation. See: Fuller v. Hill Properties, Inc. et al., 259 So.2d 398 (La.App.2nd Cir., 1972).

However, the violation with respect to the height is quite another matter. Though the restrictions are concerned specifically with maximum height requirements of side and rear fences, it is manifest that front fences are not to exceed the maximum height restriction of side and rear fences. There is great difference in the overall aesthetic impact of a 10-foot fence as compared to a 6-foot fence, and the residents of the subdivision are clearly entitled to protection from the visual impact that such differential provokes. We believe that the 10-foot height of the fence constitutes a significant and substantial violation of the implicit restriction hereinabove discussed.

Accordingly, we are of the view that insofar as the violation of the implicit height restriction is concerned, the record supports the trial court’s judgment, which is, therefore, affirmed, at appellant’s cost.

AFFIRMED.

      . This ordinance requires uniform front lot fencing. The court held that the fence along Rivage Court was a side fence because lots 12 and 13 had been “fused” together by the concrete slab and because the house faced Rich-land Avenue.


source: Caselaw Access Project

author: SAMUEL, Judge. LEMMON, Judge,

license: Public Domain

text:
    Beth M. FETTY v. COLONIAL BANK.
    No. 10004.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 8, 1978.
    Patrick D. Breeden, New Orleans, for plaintiff-appellant.
    Garon, Brener & McNeely, John F. Rob-bert, New Orleans, for defendant-appellee.
    Before SAMUEL, LEMMON and GARRISON, JJ.
   SAMUEL, Judge.

This matter is before us solely on a defendant motion to dismiss the appeal taken by the plaintiff.

Plaintiff’s petition alleges: Together with her now deceased husband, she was an individual endorser on two corporate notes held by the defendant bank; on June 2, 1975 she paid both notes; although the notes called for 8% interest per annum, the defendant had increased the interest to 10% on October 1, 1973 and had further increased the interest to 12% on February 25, 1975, thus making the loan usurious and resulting in a forfeiture by the defendant of all interest as provided by LSA-R.S. 9:3501. The petition further alleges the attorney’s fee charged by the bank was not authorized by law. The prayer of the petition is for the return of the usurious interest and the attorney’s fee collected by the defendant.

Defendant filed exceptions of no cause and no right of action to the petition. The trial court judgment appealed from maintains those exceptions only insofar as plaintiff’s claim for the return of usurious interest is concerned (relying on LSA-R.S. 12:703 as it existed at the time of the transaction which, according to the trial court’s interpretation, foreclosed plaintiff’s right to plead usury) and dismisses the exceptions insofar as they applied to the claim for return of the attorney’s fee. However, the reasons for judgment state: “Since the plaintiff suggests in brief that the note may have contained capitalized interest, she must be permitted to discover such facts and allowed to amend if she can.” Accordingly, the judgment granted plaintiff leave to amend within thirty days “to allege capitalized interest as a basis to state a claim for usury.”

The judgment was rendered on June 7, 1978. On July 26, 1978, plaintiff amended her petition alleging the notes contained capitalized interest. No further action was taken in the trial court until July 6, 1978, when plaintiff filed her motion for a devol-utive appeal and the order therefor was signed.

In her response to defendant’s motion to dismiss, plaintiff does not argue that the judgment appealed from will cause her irreparable injury, nor do we see any such possible injury. She argues only that the judgment dismissing her claim for usurious interest paid by her, and based solely on the alleged fact that the defendant bank had unilaterally increased the rate from 8% to 12%, is a final judgment and therefore ap-pealable. We do not agree.

Piecemeal appeals are not allowed and this is a piecemeal appeal. Plaintiff can go to trial on the merits, offer proof of all of her claims (by proffer or otherwise) and then appeal in the event of an adverse judgment. Her claim regarding her right to a return of alleged usurious interest paid by her to the defendant, whether or not based on capitalized interest, will be before this court on such an appeal.

For the reasons assigned, the motion to dismiss the appeal is maintained, the appeal is dismissed, and the matter is remanded to the trial court for further proceedings in accordance with law; costs of this appeal are to be paid by the plaintiff-appellant; all other costs are to await a final determination.

MOTION MAINTAINED; APPEAL DISMISSED; AND REMANDED.

LEMMON, J., concurs and assigns reasons.

LEMMON, Judge,

concurs and assigns reasons.

I agree with plaintiff’s argument that the judgment dismissing her demand for the usurious interest she had paid is a final judgment, even if the trial court reversed her right to amend her petition to demand capitalized interest, which is an entirely different demand. C.C.P. art. 934, which requires that a judgment sustaining a peremptory exception shall allow a delay for amendment, if the grounds for objection may be removed by amendment, is thus not applicable in this case, since the grounds for this particular objection cannot be removed by amendment. Here, the “amendment” did not remove the grounds for the original exception, but rather asserted an entirely different demand (which could have been asserted in the original petition or by supplemental petition, regardless of the exception).

The judgment maintaining the exception determined the merits of the demand for usurious interest and is therefore a final judgment, which is appealable. I am therefore inclined to refuse to dismiss the appeal.

However, the judgment clearly should be reversed on the merits of the appeal. When a petition states a cause of action as to any ground or portion of the demand based on a particular set of facts, the exception of no cause of action should be overruled in order to prevent a multiplicity of appeals based on that set of facts. Hero Lands Co. v. Texaco, Inc., 310 So.2d 93 (La.1975). Inasmuch as the trial court’s judgment improperly maintained the exception of no cause of action as to part of the petition, the judgment should be reversed and the matter remanded for trial on the merits of all demands in a single proceeding. Since our judgment substantially accomplishes the same result, I concur in the decree.

      . LSA-C.C.P. Arts. 1915 and 2083, particularly Comment (b) second paragraph under Article 1915; Stockstill v. Cotten, 230 La. 205, 88 So.2d 27; Celestine v. Hub City Motors, Inc., La.App., 327 So.2d 700. But as to workmen’s compensation, see Braddy v. Triangle Timber, Inc., La.App., 345 So.2d 1252.


author: CULPEPPER, Judge.

text:
    Ben F. MORRIS, Plaintiff and Appellant, v. TRANSWORLD DRILLING COMPANY, Defendant and Appellee.
    No. 6669.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 15, 1978.
    Long & Peters, Speedy 0. Long and Jimmie C. Peters, Jena, for plaintiff and appellant.
    Deutsch, Kerrigan & Stiles, Christopher Tompkins, New Orleans, for defendant and appellee.
    Before CULPEPPER, DOMENGEAUX and WATSON, JJ.
   CULPEPPER, Judge.

The sole issue in this suit is the propriety of prejudgment interest on an award in a Jones Act claim brought in a state court. The plaintiff, Ben Morris, filed suit in state court to recover damages for personal injuries from his employer, Transworld Drilling Company, under both the Jones Act and the general maritime law. The jury awarded the plaintiff $85,000 on the basis of the Jones Act claim only, but made no findings as to interest on the award. The trial court ruled that the defendant did not owe interest from the date of demand, but only from the date of judgment. From this ruling, the plaintiff appealed.

Both the parties and the trial court have stated this issue in terms of a conflict between the Louisiana statute, LSA-R.S. 13:4203, and the federal statute, 28 U.S.C.A. § 1961. This court feels that this is not the proper formulation of the problem. LSA-R.S. 13:4203 provides:

“Legal interest shall attach from date of judicial demand, on all judgments, sounding in damages, ‘ex delicto’, which may be rendered by any of the courts.”

The federal statute, 28 U.S.C.A. § 1961 provides:

“Interest shall be allowed on any money judgment in a civil case recovered in a district court. . . . Such interest shall be calculated from the date of entry of the judgment, at the rate allowed by State law.”

28 U.S.C.A. § 1961 does not speak to the issue of whether the judgment itself will include prejudgment interest as part of the plaintiff’s compensation. Rather, it indicates that the judgment itself will bear interest from the date it is entered, and leaves to other principles of law the issue of whether the judgment itself will contain prejudgment interest as part of the plaintiffs award. West v. Harris, 573 F.2d 873 (5th Cir. 1978); Illinois Central Railroad Company v. Texas Eastern Transmission Corporation, 551 F.2d 943 (5th Cir. 1977); Louisiana & Arkansas Railway Company v. Export Drum, 359 F.2d 311 (5th Cir. 1966). In other words, 28 U.S.C.A. § 1961 deals with interest on a judgment as such, and not with interest on a debt before it is reduced to judgment. Midstates Oil Corporation v. Waller, 207 F.2d 127 (5th Cir. 1953).

For these reasons, the problem in this case is more properly described as a conflict between the Louisiana statute, LSA-R.S. 13:4203, and the federal jurisprudence. The federal courts have consistently held that no prejudgment interest is to be awarded for claims made under the Jones Act. Barrios v. Louisiana Construction Materials Company, 465 F.2d 1157 (5th Cir. 1972); Sanford Bros. Boats, Inc. v. Vidrine, 412 F.2d 958 (5th Cir. 1972). See also Louisiana & Arkansas Railway Company v. Pratt, 142 F.2d 847 (5th Cir. 1944), which involved a FELA claim, and Doucet v. Wheless Drilling Company, 467 F.2d 336 (5th Cir. 1972) which involved a Jones Act claim on the admiralty side of federal court. This is the rule in the other circuits as well. Cortes v. Baltimore Insular Line, 66 F.2d 526 (2d Cir. 1933); Cleveland Tankers v. Tierney, 169 F.2d 622 (6th Cir. 1948).

This rule of law as to Jones Act claims is not to be confused with the principle that in cases brought under the general maritime law, the award of prejudgment interest is within the discretion of the trial court. See Benoit v. Fireman’s Fund Insurance Company, 361 So.2d 1332 (La.App. 3rd Cir. 1978); and Canova v. Travelers Insurance Company, 406 F.2d 410 (C.A. 5th Cir. 1969).

The forum state is obliged to follow the substantive federal law in a claim based on a federal cause of action. Minneapolis and St. L.R. Co. v. Bombolis, 241 U.S. 211, 36 S.Ct. 595, 60 L.Ed. 961 (1916); Louisiana & Arkansas Railway Company v. Pratt, supra; Southern Natural Gas Company v. Gulf Oil Corporation, 320 So.2d 917 (La.App. 3rd Cir. 1975); Lavergne v. Western Company of North America, Inc., 346 So.2d 239 (La.App. 4th Cir. 1977). See also Chris-Craft Industries, Inc. v. Piper Aircraft Corporation, 384 F.Supp. 507 (S.D.N.Y.1974). Thus the trial court’s refusal to grant prejudgment interest on a claim based only on the Jones Act was proper if the federal law as to interest is substantive rather than procedural.

The U. S. Supreme Court has not yet addressed itself to the issue of the propriety of prejudgment interest in a Jones Act or FELA claim brought in a state court. However, there is a trend by the U. S. Supreme Court to narrow the area of the law which is deemed procedural and thereby to shrink the number of instances in which state law, as the law of the forum, will apply. See Charles Wright, Law of Federal Courts, 2d Ed., Sec. 45, Ch. 8. For example, it has been held that state courts in FELA claims must apply the federal rule of liberal construction of the pleadings, a seemingly procedural rule. Brown v. Western Railway of Alabama, 338 U.S. 294, 70 S.Ct. 105, 94 L.Ed. 100 (1949).

Additionally, when faced with a state statute allowing prejudgment interest and the contrary jurisprudence under the Jones Act and FELA, the Supreme Court of New Jersey reached the same result as this court in holding that the federal substantive law must be applied and that no prejudgment interest was to be allowed. Wicks v. Central Railroad Company of N.J., 129 N.J.Super. 145, 322 A.2d 488 (1964).

We conclude the federal law as to interest on a Jones Act judgment is substantive and is therefore controlling.

For the above reasons, the judgment appealed is affirmed. All costs of the appeal are to be borne by the plaintiff-appellant.

AFFIRMED.


author: WATSON, Judge.

text:
    Elsie CARTER, Plaintiff-Appellee, v. Dr. R. Bruce PHILLIPS et al., Defendants-Appellants.
    No. 6675.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 15, 1978.
    Provosty & Sadler; by LeDoux R. Prov-osty, Jr., Alexandria, and Frederick B. Alexius, New Orleans, for defendants-appellants.
    Daniel E. Broussard, Jr., Alexandria, for plaintiff-appellee.
    Before CULPEPPER, DOMENGEAUX and WATSON, JJ.
   WATSON, Judge.

Elsie Carter, plaintiff, sued Dr. R. Bruce Phillips, an oral surgeon of Alexandria, and his malpractice insurer, St. Paul Fire & Marine Insurance Company, for damages alleged to have resulted from an operation performed by the dentist on plaintiff in March, 1972. From a jury verdict in favor of Elsie Carter in the amount of $35,000, Dr. Phillips and his insurer have appealed. The principal issues are: (1) whether there is manifest error in the jury’s finding of legal fault on the part of Dr. Phillips; and (2) whether the amount awarded is excessive or inadequate.

Miss Carter was referred by her regular dentist, a Dr. Bailey, to Dr. Phillips because of a pronounced underbite: her lower jaw protruded and she had difficulty in chewing, which caused food digestion problems. Apparently, there were also cosmetic considerations in the desire to correct the protruding jaw or what is described in medical terms as a “mandibular prognathism.” (See TR. 126) On the first consultation with Dr. Phillips, Miss Carter’s mother went with her and on her next visit both of her parents consulted with Dr. Phillips. In fact, the mother took a list of questions concerning the operation and post-surgical care for discussion.

Following the second visit, an arrangement was made for plaintiff to enter the hospital and Dr. Phillips performed a “vertical osteotomy”. Essentially, the operation consists of cutting the bone of the jaw on each side and repositioning the lower jaw to align it as ideally as possible with the upper jaw. The operation was performed under general anesthesia and in this instance required approximately six hours for completion.

Following the operation, plaintiff remained in the hospital for a short period of time with her jaw secured by wires and rubber bands. Soon after the surgical procedure, she began to notice numbness or loss of sensation in the lower lip on the right side, the chin on the right, and the lower gums on the right, as well as both a loss of feeling and a loss of taste in the right side of her tongue. Dr. Phillips informed her that this was a temporary condition, but, unfortunately, his optimism was not well-founded.

According to plaintiff’s experts, Dr. Jack N. Alpert, a Houston neurologist, and Dr. John C. Hardin, Jr., a surgeon specializing in plastic, oral and maxillofacial surgery in Shreveport, Miss Carter is suffering from a permanent condition of numbness, as well as a loss of taste on the right side of the tongue. In medical terms, according to Dr. Hardin, the plaintiff has “anesthesia or loss of sensation of the right inferior alveolar nerve and the right lingual nerve with chor-da tympani involvement secondary to surgery for a mandibular prognathism.” (TR. 126)

Both of the experts who testified for plaintiff and Dr. Bernard Clyde Hollier, an Alexandria oral surgeon, who testified for defendants, agreed that the numbness and loss of taste probably resulted from Dr. Phillips’ surgery, which damaged the nerves in or close to the bone which was severed in the operation, the damage to the nerves being either from cutting or from a squeezing by the wire used to secure the jaw after the operation. The experts also agreed.that in their experience (Dr. Hardin said he had performed the operation perhaps 120 times and Dr. Hollier about 40 times) they had never had a result involving permanent numbness. This consequence was described by Dr. Hardin as “very rare” (TR. 145) and Dr. Hollier said that it is, according to authorities in the field, a recognized risk but it has never happened to him or in Alexandria to his knowledge.

In view of the expert testimony, the decisive issue is whether the jury could have reasonably inferred negligence on the part of the oral surgeon because of the nerve damage which occurred during the operation on plaintiff’s jaw.

This court as well as the First Circuit has considered similar cases.

In Gage v. St. Paul Fire & Marine Insurance Company, 282 So.2d 147 (La.App. 3 Cir. 1973) writ refused 284 So.2d 602, an orthopedic surgeon severed the radial nerve of the arm while attempting to secure proper union of a fractured right humerus. The evidence was similar to that in the present case: the expert witnesses testified that there is always a risk of damaging the radial nerve in this surgery but none of them had ever done so. They all agreed that the severance of the nerve was inadvertent: some but not all said it was unavoidable.

In the present case, the testimony is that damage to the nerves in the jaw is a recognized risk although it had never resulted from the surgery of the experts who testified.

In Percle v. St. Paul Fire & Marine Ins. Co., 349 So.2d 1289 (La.App. 1 Cir. 1977), writs denied, 350 So.2d 1218 (1977), the oral surgery, involved the removal of a mass from the plaintiff’s left cheek. Although the mass did not involve the parotid duct (which was located very close to the mass), severance and removal of a portion of the duct occurred, and this was an unexpected and untoward result. The Court of Appeal reversed the trial judge, concluding that the oral surgeon was negligent.

The record here leads to the same conclusion reached by this court in Gage :

“Although the issue is close,' we cannot say there was insufficient evidence for the jury in its discretion to find as a fact that [the oral surgeon] did not exercise the degree of skill ordinarily employed, under similar circumstances, by members of his professional specialty in good standing in the community.” 382 So.2d 150.

There is no manifest error in the jury’s conclusion that Dr. Phillips was negligent.

The next issue is whether the jury award of $35,000 is excessive or inadequate. The defendants contend, of course, that the amount is inadequate and plaintiff has answered the appeal asking for an increase.

The jury saw and heard the plaintiff as well as the other witnesses. It is established that Miss Carter has permanent numbness or loss of sensation of the lower lip which results in a marked lessening of sensation in that area. She also has a loss of feeling in the gum and chin on the right side and she does not have feeling or taste in the tongue on the right side. Such damages are difficult to evaluate. There is not a clear abuse of discretion by the jury and the award is therefore affirmed. Coco v. Winston Industries, Inc., 341 So.2d 332 (La., 1977).

For the reasons assigned, the judgment of the trial court is affirmed. Costs of appeal are taxed against defendants.

AFFIRMED.

      . The “locality rule” no longer applies in determining fault on the part of a medical specialist, but that point is not at issue here. Ardoin v. Hartford Acc. & Indem. Co., 360 So.2d 1331 (La., 1978).


text:
    Sylvia Anne DOWNEY, Plaintiff-Appellee-Appellant, v. Agnes L. TRAHAN et al., Defendants-Appellants-Appellees.
    No. 6684.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 15, 1978.

      Gold, Little, Simon, Weems & Bruser, Eugene J. Sues, Alexandria, for defendants-appellants-appellees.
    Gravel, Roy & Burnes, Chris J. Roy, Alexandria, for plaintiff-appellee-appellant.
    Before CULPEPPER, DOMENGEAUX and WATSON, JJ.
   WATSON, Judge.

Plaintiff, Sylvia Anne Downey, brought this suit to recover damages for injuries sustained in an automobile accident at the corner of Madison and Sixth Streets in Alexandria, Louisiana, on July 6, 1973. The trial court rendered judgment in favor of plaintiff Downey and against the defendants, Agnes L. Trahan and United States Fidelity & Guaranty Company, for $65,-261.37, with the judgment against the insurer, U.S.F.&G., limited to its coverage of $10,000.00. Ms. Trahan’s husband, Ovey, was also named as a defendant and, after his death, Mrs. Helen Francis Hastings McDaniel, the executrix, was substituted as defendant, but the trial court denied judgment against the succession.

Both plaintiff and defendants have appealed.

There is ample evidence on the basis of which the trial court could have reasonably concluded that Ms. Trahan’s negligence in entering the intersection while faced with a red stop light was the cause in fact of the accident and that Ms. Downey was free of contributory negligence.

A strong contention is made by defendants-appellants that Ms. Downey’s injuries resulted from a prior accident. The trial court’s reasons for judgment examine-this issue at length. The testimony of Dr. Don Kinard Joffrion, (See TR. 349.); the deposition of Dr. James R. Bruner (See pp. 12 and 13, P-33.) and the testimony of Dr. Gordon L. Hovnatanian (See Tr. 119.) all establish the second accident, in July, that at issue here, as the most likely cause of plaintiff’s damages. The trial court ultimately relied on its assessment of plaintiff’s credibility to find that her injuries resulted from the July accident. This is completely consistent with our review of the evidence.

Sylvia Downey’s major injury was a thoracic outlet syndrome, which was still causing pain at the time of trial in October of 1977, despite two surgical procedures: a transaxillary resection of the right first rib; and a cervical fusion of the C-6 and C-7 vertebrae. Although the injury to the nerves is permanent, Ms. Downey has continued with her work as a legal secretary except during periods of hospitalization and treatment. There is no abuse of discretion in the quantum awarded, which is neither excessive nor inadequate.

The substantial issue presented by the appeal is whether the succession of Ovey Trahan should also have been cast in judgment for Agnes Trahan’s tort.

A prenuptial contract between Agnes Long Corbitt and Ovey Trahan (D-8) renounced the community of acquets and gains; reserved the property of each under separate administration; and provided that neither should be liable for the other’s debts. This marriage contract, dated May 26, 1967, was recorded on June 20, 1967, prior to the parties’ marriage on June 24th of that year.

The trial court concluded that the shopping trip on which Ms. Trahan was embarked when the accident occurred would have been a community errand had there not been a separation of property. Because of the prenuptial marriage contract, the trial court found no liability on the part of the husband.

The only evidence concerning Ms. Tra-han’s shopping trip was her unsworn statement (P-3), which was introduced into evidence without objection. Neither Ms. Trahan nor her husband testified. Compare Gauthier v. Henry, 255 So.2d 378 (La.App. 1 Cir. 1971). Her statement identifies the Buick driven by Ms. Trahan as owned by her individually. On the morning in question, Ms. Trahan told her husband she was going to Alexandria to buy shoes and asked if he would like to accompany her but he declined. Ms. Trahan purchased some shoes at Gus Kaplan’s and was enroute to other stores for general shopping when the accident occurred. The statement implies that the shoes were purchased with Ms. Trahan’s separate funds.

While there is no right to proceed against a husband merely because of his relationship to a tortfeasor wife, the husband, as head of the family, is liable for his wife’s tort if she is acting as agent for him or the community at the time of an accident. Martin v. Brown, 240 La. 674, 124 So.2d 904 (1960). A matrimonial agreement does not affect a husband’s authority as head of the family. LSA-C.C. art. 2327. The absence of a community of acquets and gains between husband and wife does not necessarily prevent vicarious liability, because the basis for such liability is agency and not community property. Hobbs v. Fireman’s Fund Am. Ins. Companies, 339 So.2d 28 (La.App. 3 Cir. 1976), writs denied, 341 So.2d 896 (1977). The kinds of agency or mandate are stated in LSA-C.C. art. 2986, as follows:

“The mandate may take place in five different manners: For the interest of the person granting it alone; for the joint interest of both parties; for the interest of a third person; for the interest of such third person and that of the party granting it, and, finally, for the interest of the mandatary and a third person.”

Even if there is a separation of property, the duties of husband and wife remain as defined in LSA-C.C. art. 119: “The husband and wife owe to each other mutually, fidelity, support and assistance.” Agnes Trahan’s purchase of shoes would ordinarily be considered a necessity covered by the term support. Even after a judgment of separation dissolves the community of ac-quets and gains, a duty of support flows from the marriage relationship. See LSA-C.C. art. 148, and the comment in 11 Louisiana Law Review 401 at page 422.

The distinction between this situation and that involved in such cases as Vail v. Spampinato, 238 La. 259, 115 So.2d 343 (1959), Brantley v. Clarkson, 217 La. 425, 46 So.2d 614 (1950), and Martin v. Brown, 240 La. 674, 124 So.2d 904 (1960) is the effect of the separation of property between the spouses. Vail, Brantley and Martin refer to a “community” or “family” automobile. Professor Stone states in vol. 12 of the “Louisiana Civil Law Treatise: Tort Doctrine”, at page 402, as follows:

“If however the car belonged to the wife as her separate property, no reason would exist for imputing her negligence to her husband unless she was acting as his agent or employee.”

In the instant situation, the evidence does not establish that Ms. Trahan was acting as agent for her husband and her husband is not vicariously liable for her tort.

The issue of prescription of the claim against the succession is pretermitted.

For the foregoing reasons, the judgment of the trial court is affirmed. All costs are assessed against defendants-appellants.

AFFIRMED.

      . In answers to interrogatories, Ms. Trahan stated only that her purpose was “Shopping.” and “Personal shopping.” (TR. 66).

      . LSA-C.C. art. 2327: “Restrictions on authority of husband or wife prohibited”
      “Neither can husband and wife derogate by their matrimonial agreement from the rights resulting from the power of the husband over the person of his wife and children, or which belong to the husband as the head of the family, nor from the rights granted to the surviving husband or wife by the title: Of Father and Child, and by the title: Of Minors, of their Tutorship and Emancipation, or from the prohibitory dispositions of this Code.”

      . LSA-C.C. art. 148: “Wife’s alimony pendente lite”
      “If the wife has not a sufficient income for her maintenance pending the suit for separation from bed and board or for divorce, the judge shall allow her, whether she appears as plaintiff or defendant, a sum for her support, proportioned to her needs and to the means of her husband.”

      . Compare Tandy v. Simoneaux, 344 So.2d 406 (La.App. 1 Cir. 1977), where the wife’s purpose was prostitution.


text:
    Paul DUPLECHIN, Plaintiff and Appellant, v. JOHN DOE, RIMMER & GARRETT, INC., et al., Defendants and Appellees.
    No. 6695.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 15, 1978.
    Gerald J. Block, Lafayette, for plaintiff-appellant.

      Robert J. Larue, Jr., New Orleans, for intervenor-appellant.
    Onebane, Donohoe, Bernard, Torian, Diaz, McNamara & Abell, Edward C. Abell, Jr. and Chris G. Robbins, Lafayette, for defendants-appellees.
    Before CULPEPPER, GUIDRY and FORET, JJ.
   CULPEPPER, Judge.

This is a suit for damages for personal injuries. The plaintiff, Paul Duplechin, was standing beside the highway when a passing truck struck a large metal hinge lying on the road, causing the hinge to fly through the air and hit plaintiff’s wrist. Named as defendants are (1) John Doe, the unknown driver of the truck, (2) Rimmer and Garrett, Inc., owner of the truck, and (3) Liberty Mutual Insurance Company, Inc., insurer of the truck. The action was tried by a judge alone. When the plaintiff had completed the liability portion of his evidence but had not yet presented the testimony dealing with quantum, the defendants moved for a directed verdict. The trial judge sustained the motion and dismissed plaintiff’s case. From this judgment, the plaintiff appealed.

The decisive issue is whether a directed verdict may be granted over plaintiff’s objection before he rests his case. Here, plaintiff had completed only that portion of his evidence dealing with the issue of liability. He had not presented his evidence on damages. And, he objected to the motion for a directed verdict on the ground that he had not rested his case.

The trial judge notes in the record that he ordered the plaintiff to proceed first with the liability portion of his evidence. At one point, after most of plaintiff’s witnesses to the liability of the defendant had testified, the judge asked plaintiff if he had rested. The plaintiff stated that he had not yet presented the testimony of two witnesses whose evidence would only tangentially affect the issue of liability, and he had not yet presented his evidence as to quantum. Over plaintiff’s protest, he was deemed to have rested his case, and the court allowed and granted the motion for a directed verdict.

We find this practice unauthorized by our Code of Civil Procedure. LSA-C.C.P. Article 1810 provides:

“A party who moves for a directed verdict at the close of the evidence offered by an opponent may offer evidence in the event that the motion is not granted, without having reserved the right so to do and to the same extent as if the motion had not been made. A motion for a directed verdict which is not granted is not a waiver of trial by jury even though all parties to the action have moved for directed verdicts. A motion for a directed verdict shall state the specific grounds therefor. The order of the court granting a motion for a directed verdict is effective without any assent of the jury. Added by Acts 1977, No. 699, Sec. 1.” (Emphasis added)

Under the quoted article, it is clear the motion for directed verdict may be granted only after the close of the nonmover’s evidence. In the instant case, the plaintiff had simply not yet finished the presentation of his evidence and should have been allowed to do so.

It is unnecessary for us to consider plaintiff’s additional argument that under LSA-C.C.P. Article 1810, as stated in Act No. 699 of 1977, which was in effect at the time this case was tried on January 19, 1978, a motion for a directed verdict could not be granted except in a jury trial. However, we note that Article 1810 was amended by Act 156 of 1978 to expressly provide for directed verdicts in cases tried without a jury.

For the foregoing reasons, the judgment appealed is reversed and set aside. Defendants’ motion for a directed verdict is denied. The case is remanded to the district court for further proceedings in accordance with law and the views expressed herein. All costs of this appeal are assessed against the defendants-appellees.

REVERSED AND REMANDED.


author: CUTRER, Judge.

text:
    Dwynell “Dee” HALE, Plaintiff-Appellee-Appellant, v. Malcolm CHAMPAGNE et ux. and Lumbermen’s Mutual Casualty Company, Defendants-Appellees-Appellants.
    No. 6702.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 15, 1978.
    Landry, Watkins, Cousin & Bonin, Alfred S. Landry, New Iberia, for defendants-ap-pellees-appellants.
    M. Charles Brandt, Lafayette, for plaintiff-appellee-appellant.
    James C. Walker, Jr., Houma, for defendant-appellee.
    Before DOMENGEAUX, WATSON and CUTRER, JJ.
   CUTRER, Judge.

This is a tort action arising out of an intersectional collision in which Dwynell “Dee” Hale seeks to recover damages for injuries he allegedly sustained. The issue presented on appeal is whether the trial judge committed manifest error in his award of damages.

Plaintiff was operating a pickup truck on a favored highway in December of 1974 when another truck driven by Mrs. Malcolm Champagne entered the highway from his right at an intersection. The front of plaintiff’s vehicle collided with the side of the Champagne vehicle. Plaintiff alleges that as a result of the accident he lost one tooth and had another loosened which later fell out.

Shortly after the accident, plaintiff filed this suit in which the court below found Mrs. Champagne to be negligent and that her negligence was the sole cause of the accident. This determination by the trier of fact is not contested. The court awarded damages in the amount of $1,500 to the plaintiff, and the defendant now appeals this ruling and asserts that such a recovery is unwarranted on the facts of this case. The plaintiff also appeals from this judgment, contending that the award below was inadequate.

The only evidence introduced at trial by the plaintiff as to the extent and severity of his injuries was the testimony of the plaintiff himself and that of Dr. Gordon J. Mills, a dentist who had seen the plaintiff after the accident.

The plaintiff testified that the loss of his two teeth were from a mouth that had never given him any trouble before. However, both Dr. Mills and Dr. Joseph M. Kochansky, defendant’s periodontist witness, stated that the plaintiff’s mouth was in terrible condition prior to the accident. They diagnosed severe, chronic, generalized periodontitis, severe bruxism, periapical abscesses, and severe localized dental decay. Both doctors agreed that had plaintiff’s two teeth not been missing, they would have been lost in the near future by disease, and that in order to properly treat plaintiff’s condition, these two teeth would have had to have been removed anyway. Furthermore, neither doctor could positively assert that the accident caused or aggravated all or any part of the condition of plaintiff’s mouth, nor could Dr. Mills say that plaintiff’s problem was even probably caused by trauma from the accident. Finally, both doctors testified that the work they would recommend on the plaintiff’s mouth after the accident would be the same as that they would have recommended before, irrespective of the loss of plaintiff’s teeth or of any other complaint made by the plaintiff as a result of the accident.

It is a well settled principle of law that the defendant takes his victim as he finds him; and that if defendant’s negligence aggravates a pre-existing condition, then the defendant is responsible for the consequence of that aggravation. Romero v. Flo-Tel, Inc. 332 So.2d 596 (La.App. 3rd Cir. 1976). But here, there is conflicting evidence as to any aggravation. The trial court noted in its written reasons:

“ . . . Plaintiff has simply failed to bear his burden of proving that the work which needs to be done in his mouth is a natural consequence of the accident. Certainly, the work needs to be done, but plaintiff has proven just the opposite of which he intended: he has proven that the work needs to be done irrespective of any accident or trauma. He will not be awarded damages to pay for this work, nor will he be compensated for any pain and suffering associated with such work.”

Unlike those situations presented in the jurisprudence cited to the court by the plaintiff, this is not a case where the accident substantially contributed to the necessity of having certain work performed in order to restore the plaintiff to the condition he was in prior to the accident. Rather, in the instant case, the accident did not produce an immediate need for doing the work recommended, did not superimpose anything of any consequence on the existing condition, and did not cause the situation existing afterward in plaintiff’s mouth. Under the circumstances, the doctrine of “take your victim as you find him” is not applicable to this particular case.

Plaintiff clearly has the burden of proving by a preponderance of the evidence that he is entitled to the damages which he claims. Coleman v. Victor, 326 So.2d 344 (La.1976). Here, the trial court, after a full hearing on all the evidence, decided that an award of $1,500 was sufficient to adequately compensate the plaintiff for the loss of the teeth and for pain and suffering. This is a factual matter. The record fully supports the conclusions reached by the trial court in its well written reasons for judgment. No manifest error.

For the foregoing reasons, the judgment of the trial court is affirmed and all costs of this appeal are assessed against the defendant.

AFFIRMED.


author: DOMENGEAUX, Judge.

text:
    Annie THOMPSON, Plaintiff-Appellee, v. NATCHITOCHES PARISH HOSPITAL SERVICE DISTRICT et al., Defendants-Appellants.
    No. 6704.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 15, 1978.
    Bolen, Halcomb & Erwin and Gregory S. Erwin, Alexandria, for defendants-appellants.

      Thomas & Dunahoe and G. F. Thomas, Jr., Natchitoches, for plaintiff-appellee.
    Before DOMENGEAUX, WATSON, and CUTRER, JJ.
   DOMENGEAUX, Judge.

This is a suit to modify a prior workmen’s compensation judgment under the provisions of La. R.S. 23:1331. Plaintiff, a nurse’s aide, was injured on the job when an ambulance in which she was riding was struck from the rear by another vehicle. She was diagnosed at that time as suffering from a neck and back sprain. We affirmed the portion of the trial court judgment which, in January of 1976, rendered an initial judgment decreeing that plaintiff was entitled to recover workmen’s compensation benefits as a result of these injuries (La. App., 335 So.2d 81). Thereafter, our Supreme Court denied an application for writs filed by the defendants (La., 338 So.2d 298).

In September of 1977, this suit was brought by the defendants to modify the initial decree. After a trial on the merits, judgment was rendered in the District Court, denying appellant’s petition to modify the prior judgment on the grounds that the plaintiff’s previous disability remained in effect.

I.

The first issue is whether the trial court erred in failing to order the claimant examined by a physician of appellants’ choice. In this regard, on June 20, 1977, appellants ruled the claimant into Court to show cause why she should not be examined by an orthopedic specialist to be appointed by the Court. At that point in time, the claimant’s treating physician was Dr. Joseph A. Thomas, a general practitioner, and she had been'also seen and examined by Dr. D. M. Kingsley, an orthopedic surgeon, on January 21, 1977, at the behest of appellants. Doctor Kingsley found no disability. She had also been examined by Dr. Baer I. Ramback, another orthopedic surgeon, to whom she was referred by St. Paul Insurance Company as a result of an automobile accident in which she was involved in November of 1976. The Rule was tried and the District Judge ordered the claimant reexamined by Doctor Kingsley. In this context, we find no abuse of discretion on the part of the District Court, and find no violation of La. R.S. 23:1121, relative to medical examinations of an injured employee.

II.

The second issue is whether the trial court erred in holding that the appellants failed to prove that plaintiff’s disability had diminished to the extent that she was no longer disabled.

The trial court considered the testimony of three physicians, two orthopedic surgeons and one general practitioner, as well as that of the plaintiff, her husband, a co-worker, and two neighbors, in making its determination in the case. Upon the hearing of all offered testimony, the trial judge accepted that of the lay witnesses, which indicated that the plaintiff continues to suffer daily pain which prohibits her from working as a nurse’s aide. Dr. Joseph A. Thomas, the treating physician, released her from his care as having reached maximum recovery, but indicated that she continued to have pain and discomfort in her neck, and that this would be something she would have to learn to live with.

It is a well established principal of law that where there is evidence before the trier of fact which, upon its reasonable evaluation of credibility, furnishes a reasonable basis for his factual conclusions, on review, the appellate court should not disturb this factual finding in the absence of manifest error. Canter v. Koehring Company, 282 So.2d 716 (La.1973).

The trial judge, in a short written opinion, accepted the lay testimony and concluded that the plaintiff’s disability has not diminished. He also gave weight to Dr. Thomas’ testimony. In so doing, the trial judge did not commit error, for it is ultimately his responsibility to determine if and to what extent a plaintiff suffers a disabling injury, and to do so he may draw upon all evidence in the record, whether its source is lay or medical testimony. Tantillo v. Liberty Mutual Insurance Company, 315 So.2d 743 (La.1975). Also applicable in this regard is Gates v. Ashy Construction Company, 171 So.2d 742 (La.App. 3rd Cir. 1965), writ refused 247 La. 678, 173 So.2d 542 (1965), which has been followed and cited extensively in the jurisprudence for the general proposition that it is not error to accept the testimony of the treating physician over that of specialists who might have only seen a claimant briefly.

The burden is on the appellants to show by the preponderance of the evidence that the disability has diminished, and in making such a determination, great weight is to be attached to the trial court’s evaluation of the credibility of the witness. Montgomery v. Delta Concrete Products Co., Inc., 290 So.2d 769 (La.App. 1st Cir. 1974). Here, the trial judge felt that the defendants had not sustained their burden. There is a reasonable basis in the record for the trial judge to so hold. Therefore, this court cannot say that the trial judge manifestly erred when he denied modification of the initial decree to the defendant.

The judgment of the trial court is affirmed. Costs of this appeal are assessed against defendants-appellants.

AFFIRMED.


author: FORET, Judge.

text:
    CITY OF NATCHITOCHES, Plaintiff-Appellee, v. VALLEY ELECTRIC MEMBERSHIP CORP., INC., Defendant-Appellant.
    No. 6714.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 20, 1978.
    Whitehead & McCoy, Charles R. Whitehead, Jr., Natchitoches, for defendant-appellant.
    Watson, Murchison, Crews, Arthur & Cockern by Daniel T. Murchison, Natchi-toches, for plaintiff-appellee.
    Before GUIDRY, FORET and CUTRER, JJ.
   FORET, Judge.

The City of Natchitoches, a municipal corporation (“City”), filed suit against Valley Electric Membership Corp. (“VEMCO”), a Louisiana rural electric co-operative seeking to enjoin VEMCO from constructing certain electrical lines within the city limits of Natchitoches. The trial court granted a permanent injunction prohibiting VEMCO from constructing any electric lines or facilities, or placing any equipment, within the municipal limits of the City. From this adverse ruling, VEMCO has perfected a de-volutive appeal.

This suit was filed December 8, 1977, after the City learned that VEMCO was constructing an electric line along Louisiana Highway 1 Bypass South (La. Hwy. 3110). This line is partially within the city limits, but no permit or permission was obtained from the City. In addition, the City alleges such action by VEMCO was done after notice to VEMCO by the City of its objection.

Upon learning of the construction by VEMCO along Highway 3110, Mayor Robert W. DeBlieux of the City of Natchitoch-es, wrote to Mr. Richard Mills, VEMCO’s manager, advising him that the City, relying on the provisions of La.R.S. 33:4406, would not allow any expansion, improvements, or alterations other than normal maintenance, of VEMCO’s facilities without specific written approval of the City. VEMCO advised the City that its line was in substitution of an existing power line running through the City and contended that VEMCO did not need City permission as its line was within the right-of-way of the State highway and that it had obtained permits for the use and occupancy of the right-of-way of the State highway from the Louisiana Department of Highways as provided for in La.R.S. 48:381A(2).

At trial on the injunction, the City’s request for a permanent injunction was granted, the trial court holding that VEM-CO had failed to get permission from the City as required by La.R.S. 33:4406 before beginning construction of this electrical line and ordered that it be dismantled; additionally, a general injunction on VEMCO’s activities within the city limits was granted.

Prior to this matter having been orally argued before us and submitted for decision, plaintiff and defendant entered into a compromise agreement setting at rest their dispute involving the electric line constructed by VEMCO along Louisiana Highway 1 Bypass South, said line extending from Highway 1 South to Highway 6 West. The compromise agreement, by a joint stipulation of counsel, has been made a part of this record. The compromise agreement is clear that no further dispute exists between the parties as to the electric line constructed or to be constructed by VEMCO on the geographical location above mentioned. Therefore, it is no longer an issue as to whether or not the trial court was correct in ordering a mandatory injunction ordering VEM-CO to dismantle the electric line which it had built along the Louisiana Highway 1 Bypass, within the city limits of Natchitoch-es.

We thus pretermit a decision as to whether an injunction was justified in this particular situation and dissolve the existing injunction.

As to the permanent injunction over all of VEMCO’s activities in the City granted by the trial court, we refer the parties to our opinion in Town of Coushatta v. Valley Electric Membership Corporation, 139 So.2d 822 (La.App. 3 Cir. 1962). In a similar factual situation involving the same defendant as the present case, an injunction was sought to prevent VEMCO from attempting to serve additional customers within the city limits of Coushatta in derogation of the rights of an established electrical franchisee; however, there was no showing that VEMCO was actually seeking business in the proscribed area. We stated (on rehearing) that although “injunctions lie to prohibit a threatened violation, there must be a real threat and not a mere possibility thereof” (pg. 831).

As previously noted there no longer exists a present dispute between the parties requiring an injunction and we therefore reverse the ruling of the trial court and dissolve the existing injunction.

Costs of this appeal are assessed against VEMCO and the City of Natchitoches, equally.

REVERSED.

      . § 4406. Restriction on new construction; public convenience and necessity as ground tor franchise or permit
      No public utility shall begin the construction of any new plant, equipment, property, or facility, which is not in substitution of an existing plan, property, equipment, or facility, nor shall it make any extension or addition to any existing plant, property, equipment, or facility which will cost over two per cent of the rate-making value of the property at the time the extension or addition is made, nor shall any indeterminate permit or franchise be granted, unless and until the governing authority of the city certifies that public convenience and necessity require the same. The governing authority of such city shall be the sole and final judge of what the public convenience and necessity require, in every case.

      . § 381. Use and occupancy of highways
      A. When not inconsistent with the purposes of state highways, the assistant secretary, office of highways may issue permits for the use and occupancy of the rights of way of state highways as follows:

      (2) For the installation, operation and maintenance of overhead cables, conduits or wires, together with appropriate supporting structures, for the transmission of telephone or telegraph messages or electric current for any purpose.


text:
    GEORGIA-PACIFIC CORPORATION v. Robert L. THOMPSON.
    No. 50779.
    Supreme Court of Mississippi.
    Dec. 6, 1978.
    McCoy & Wilkins, Joseph T. Wilkins, III, Jackson, for appellant.
    Jack A. Travis, Jackson, for appellee.
    Before ROBERTSON, P. J., and LEE and COFER, JJ.
   ROBERTSON, Presiding Justice, for the Court:

This is a Workmen’s Compensation case. Georgia-Pacific Corporation, a self-insurer, has appealed to this Court from an Order of the Circuit Court of the First Judicial District of Hinds County, Mississippi, reversing the order of the Workmen’s Compensation Commission and ordering the employer to pay to Robert Lee Thompson, claimant, temporary total disability from May 13, 1975, to such time as there is an adjudication that claimant has reached maximum medical recovery.

The Commission had found that Thompson was injured on May 13, 1975, when he fell off of a truck while unloading some building materials for his employer. His spleen was ruptured and Dr. Richard L. Yelverton performed a splenectomy on May 13, 1975.

Thompson completely recovered from this operation, but continued to complain about his left shoulder, so Dr. Yelverton referred him to the Jackson Bone and Joint Clinic. Dr. William C. Warner of the Clinic treated him for chronic tendonitis of the left shoulder until August 19, 1975, when he discharged him to return to light work, not requiring any heavy lifting or strenuous use of his left shoulder.

Eddie Hamilton, claimant’s supervisor at Georgia-Pacific, testified that he repeatedly called Thompson to return to work, that he assured Thompson that he could give him light work meeting his doctor’s specifications that it not involve heavy lifting or strenuous use of his left shoulder, but Thompson would not return to work so finally on September 2, 1975, he had to replace him.

The Commission in its Order first quoted from Dunn, Mississippi Workmen’s Compensation, 2d Ed., Section 79 (1966):

“The determination of the degree of disability, whether permanent or temporary, is essentially one of fact. In resolving the question, there are generally two ingredients which combine to produce the result. These are (1) actual physical injury and (2) de facto loss of wage earning capacity. The Commission is not confined to medical or functional impairment produced by the injury but has the power and duty to evaluate other evidence relating to the stated factors and to determine the issue from the evidence as a whole.”

The Commission then found:

“[T]hat claimant suffered, as a result of the injury, a Fifty Dollar ($50.00) per week loss of wage-earning capacity. By computation, this amounts to temporary partial disability benefits at the rate of Thirty-Three Dollars and Thirty-Three Cents ($33.33) per week.
“Therefore, the Full Commission, having weighed the import of the lay and medical evidence as a whole, is of the opinion that as a result of a compensable accidental injury on May 13, 1975, claimant was temporarily totally disabled from May 13, 1975 through August 19, 1975. The Commission further finds that claimant had not reached maximum medical recovery as of May 5, 1976, the date on which Dr. Warner last testified, and that, therefore, claimant is entitled to temporary partial disability benefits at the rate of Thirty-Three Dollars and Thirty-Three Cents ($33.33) per week from August 19, 1975, through May 5,1976, and thereafter as provided by Section 8(e) of the Act until he reaches maximum medical recovery and his permanent partial disability, if any, is determined. The Full Commission remands this claim to the Administrative Judge for a determination on that issue.”

The Commission’s order is supported by substantial evidence including the medical findings of claimant’s witness, Dr. William C. Warner.

The circuit court, sitting as an appellate court, was in error in reversing the Workmen’s Compensation Commission. The order of the circuit court is, therefore, reversed and the order of the Workmen’s Compensation Commission reinstated, and this cause is remanded to the Commission to determine whether the claimant has reached maximum medical recovery, and whether he will suffer any permanent partial disability.

REVERSED, ORDER OF WORKMEN’S COMPENSATION COMMISSION REINSTATED, AND REMANDED TO THE COMMISSION.

PATTERSON, C. J., SMITH, P. J., and SUGG, WALKER, BROOM, LEE, BOWLING and COFER, JJ., concur.


text:
    Clara McBROOM v. Ronnie D. HILL and Devan Hill.
    No. 50710.
    Supreme Court of Mississippi.
    Dec. 6, 1978.

      Jimmy D. Shelton, Tupelo, for appellants.
    Mitchell, McNutt, Bush, Lagrone & Sams, F. M. Bush, III, Tupelo, for appellee.
    Before SMITH, P. J., and LEE and COF-ER, JJ.
   SMITH, Presiding Justice, for the Court:

Clara McBroom seeks to appeal from a judgment of the Circuit Court of Chickasaw County entered in a suit brought by her for damages for personal injuries alleged to have been incurred as the result of an automobile collision. In her suit, McBroom named as defendants Ronnie D. Hill and his father, Devan Hill, alleging that negligence on the part of Ronnie D. Hill in the operation of an automobile belonging to his father, Devan Hill, proximately caused the collision and that at the time he was acting as the agent of his father. Devan Hill countered with a suit against McBroom for the damages done to his automobile.

Upon conflicting evidence adduced by McBroom and the Hills on the issue of negligence, the jury returned a verdict for Ronnie D. Hill. There having been no evidence offered to support the theory that Ronnie D. Hill had been acting as agent of his father the circuit court judge correctly directed a verdict for him on the issue of liability to McBroom for injuries alleged to have been sustained by her. On the evidence as to negligence, the jury also returned a verdict for Devan Hill against McBroom on his counter suit for damages to his car but fixed the amount at “zero dollars.” The only evidence as to the amount of damages to the Devan Hill automobile having been $2,596.49, and there having been no contradictory evidence as to the amount, the trial court ordered a new trial in the Devan Hill counter suit on the single issue of the amount of damages, unless, within thirty days, McBroom would accept an additur of $2,596.49, which was the undisputed amount of damages to the Hill automobile. In this state of the case, McBroom neither accepted the additur nor proceeded with the new trial.

There remains undisposed of in the trial court, therefore, the issue for the determination of which the circuit court judge ordered a new trial, that is, a new trial to determine the amount due Devan Hill as damages to his automobile, McBroom obviously having declined to accept the additur.

In this situation, the appeal is premature, the judgment not having been final as to all parties on all issues. The appeal is, on motion of appellee, dismissed in order that the single remaining issue may be disposed of in the trial court.

In State Tax Commission v. Clinton, 267 So.2d 312 (Miss.1972), this Court held:

An appeal may be taken to the Supreme Court from any final judgment of the circuit court in a civil case, but there is no interlocutory appeal from a judgment of the circuit court, except from an order for a new trial based on the exces-siveness or inadequacy of damages. A judgment of the circuit court is not final which does not settle the cause as to all of the parties, or when it does not finally dispose of all the issues presented. See Sections 1147 and 1536 Mississippi Code 1942 Annotated (1956); City of Meridian v. Dickson, Miss., 266 So.2d 143 (decision rendered July 3, 1972, petition for rehearing Denied Sept. 18, 1972); Eubanks v. Aero Mayflower Transit Co., 253 Miss. 159, 175 So.2d 169 (1965); Bradley v. Holmes, 242 Miss. 247, 134 So.2d 494 (1961). (267 So.2d at 314).

APPEAL DISMISSED.

PATTERSON, C. J., ROBERTSON, P. J., and SUGG, WALKER, BROOM, LEE, BOWLING and COFER, JJ., coneur.


text:
    Richard MASSEY & Morris Gray v. Thomas Jerry RUFFIN.
    No. 50797.
    Supreme Court of Mississippi.
    Dec. 6, 1978.
    V. Douglas Gunter, Jackson, Johnston & Adams, Lem Adams, III, Brandon, for appellants.
    William R. Barnett, Thomas Bennett Price, Jackson, for appellee.
   Appeal from Circuit Court, Rankin County; Rufus H. Broome, Judge.

Before PATTERSON, C. J., and SUGG and BOWLING, JJ.

AFFIRMED.


text:
    Mary WILLIS v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY.
    No. 50376.
    Supreme Court of Mississippi.
    Dec. 13, 1978.
    Liston, Crull & Gibson, Hugh Gibson, Eu-pora, for appellant.
    Brooks & Guyton, William D. Brooks, Kosciusko, for appellee.
   Appeal from Circuit Court, Webster County; Clarence E. Morgan, Jr., Judge.

Before SMITH, P. J., WALKER and COFER, JJ., and GEORGE F. ADAMS, Commissioner.

AFFIRMED ON CONDITION OF ACCEPTANCE OF ADDITUR.

PATTERSON, C. J., ROBERTSON, P. J., and SUGG, BROOM, LEE and BOWLING, JJ., concur.


text:
    Pearl M. McGEE v. Charles C. DAY.
    No. 50803.
    Supreme Court of Mississippi.
    Dec. 13, 1978.
    Frank W. Walden, Robert A. Geoghegan, Natchez, for appellant.
    Watkins & Eager, Thomas M. Murphree, Jr., Jackson, for appellee.
   Appeal from Circuit Court, Jefferson County; Lenox L. Forman, Judge.

Before PATTERSON, C. J., SUGG and BOWLING, JJ., and FRED P. WRIGHT, Commissioner.

AFFIRMED.


text:
    AMERICAN NATIONAL INSURANCE COMPANY and Baca Corporation v. CITY OF BILOXI, Mississippi.
    No. 50776.
    Supreme Court of Mississippi.
    Dec. 13, 1978.
    Pringle & Pringle, Charles K. Pringle, Biloxi, for appellant.
    Vlahos & Caranna, Cono A. Caranna, II, Matt G. Lyons, Biloxi, for appellee.
   Appeal from Circuit Court, Harrison County; Floyd J. Logan, Judge.

Before PATTERSON, C. J., and SUGG and BOWLING, JJ.

AFFIRMED.


text:
    Charles DUFFIE v. JACKSON COUNTY BOARD OF EDUCATION.
    No. 50696.
    Supreme Court of Mississippi.
    Dec. 13, 1978.
    Fielding L. Wright, Jr., James H. Heidelberg, Pascagoula, for appellant.
    Robert H. Oswald, Pascagoula, for appel-lee.
   Appeal from Chancery Court, Jackson County; Kenneth B. Robertson, Chancellor.

Before ROBERTSON, P. J., and LEE and COFER, JJ.

REVERSED AND REMANDED.

PATTERSON, C. J., SMITH, P. J., and SUGG, WALKER, BROOM and BOWLING, JJ., concur.


text:
    Richard G. HOPTON v. Ella May HOPTON and Brenda Lynn Belcher (Bethany).
    No. 50674.
    Supreme Court of Mississippi.
    Dec. 13, 1978.
    W. E. Gore, Jr., L. Breland Hilburn, Jackson, for appellant.
    Shell, Buford, Bufkin, Callicutt & Perry, Charles L. Howorth, Jr., Jackson, for appel-lees.
   Appeal from Chancery Court, Hinds County; George William Haynes, Chancellor.

Before ROBERTSON, P. J., and WALKER and BROOM, JJ.

AFFIRMED.


text:
    MISSISSIPPI STATE BOARD OF PHARMACY v. Edwin L. BAKER.
    No. 50770.
    Supreme Court of Mississippi.
    Dec. 13, 1978.
    A. F. Summer, Atty. Gen. by S. E. Birdsong, Jr., Sp. Asst. Atty. Gen., Jackson, for appellant.
    Allen & Allen, Robert 0. Allen, Brookha-ven, Mounger & Mounger, Tylertown, for appellee.
   Appeal from Chancery Court, Lincoln County; Mike Carr, Chancellor.

Before ROBERTSON, P. J., and WALKER and BROOM, JJ.

AFFIRMED.


text:
    JAC INTEREST, INC., d/b/a Draughon’s Business College v. Richard F. JOHNSON.
    No. 50941.
    Supreme Court of Mississippi.
    Dec. 13, 1978.
    David R. Sparks, Tupelo, for appellant.
    Gene Harlow, Grenada, for appellee.
   Appeal from Circuit Court, Grenada County; Clarence E. Morgan, Jr., Judge.

Before ROBERTSON, P. J., and WALKER and BROOM, JJ.

AFFIRMED.


text:
    Lamar JAMES, III v. STATE of Mississippi.
    No. 50832.
    Supreme Court of Mississippi.
    Dec. 13, 1978.
    George M. Simmerman, Pascagoula, for appellant.
    A. F. Summer, Atty. Gen. by Carolyn B. Mills, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Jackson County; Merle F. Palmer, Judge.

Before PATTERSON, C. J., and SUGG and BOWLING, JJ.

AFFIRMED.

SMITH and ROBERTSON, P. J., and WALKER, BROOM, LEE and COFER, JJ., concur.


text:
    Mrs. Dorothy FRASIER v. Jack M. FRASIER.
    No. 50724.
    Supreme Court of Mississippi.
    Dec. 13, 1978.
   Appeal from Chancery Court, Lauderdale County; Howard R. Pigford, Chancellor.

Williams & Glover, H. Wingfield Glover, Jr., Sandusky & Bailey, Robert W. Bailey, Meridian, for appellant.

Helen J. McDade, DeKalb, for appellee.

Before ROBERTSON, P. J., and WALKER and BROOM, JJ.

AFFIRMED. APPELLANT ALLOWED $675.00 FOR FEE OF HER ATTORNEY FOR SERVICES IN THIS COURT.


text:
    Thomas BEDWELL, Jr. v. W. E. BLAIN AND SONS, INC., et al.
    No. 50791.
    Supreme Court of Mississippi.
    Dec. 13, 1978.
    Emory E. Morgan, Columbus, for appellant.
    Hall, Callender & Dantin, William C. Cal-lender, Columbus, for appellees.
   Appeal from Circuit Court, Marion County; Robert I. Prichard, Judge.

Before ROBERTSON, P. J., and WALKER and BROOM, JJ.

AFFIRMED.


text:
    Tommy L. CHAMBERS v. STATE of Mississippi.
    No. 50733.
    Supreme Court of Mississippi.
    Dec. 13, 1978.
    Charles E. Morris, Jr., Biloxi, for appellant.
    A. F. Summer, Atty. Gen. by Calvin Coolidge Williams, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Choctaw County; Clarence E. Morgan, Jr., Judge.

Before ROBERTSON, P. J., and WALKER and BROOM, JJ.

AFFIRMED.


text:
    Willie BUIE v. STATE of Mississippi.
    No. 50840.
    Supreme Court of Mississippi.
    Dec. 13, 1978.
    Guy, Dowdy & Whittington, C. Wayne Dowdy, McComb, for appellant.
    A. F. Summer, Atty. Gen., by Karen Gil-foy, Sp. Asst. Atty. Gen., Jackson, for ap-pellee.
   Appeal from Circuit Court, Lincoln County; Joe N. Pigott, Judge.

Before PATTERSON, C. J., and SUGG and BOWLING, JJ.

AFFIRMED.


text:
    MISS. EMPLOYMENT SECURITY COMMISSION v. Frances Z. BURKES et al. MISS. EMPLOYMENT SECURITY COMMISSION v. Frankie P. HARPOLE. MISS. EMPLOYMENT SECURITY COMMISSION v. Nancy WILKERSON. MISS. EMPLOYMENT SECURITY COMMISSION v. Judith MANSELL et al.
    Nos. 50738, 50739, 50740 and 50759.
    Supreme Court of Mississippi.
    Dec. 20, 1978.
    Fred J. Lotterhos, Jackson, for appellant.
    Barnett & Brooks, Robert N. Brooks, Carthage, for appellees.
   Appeal from Circuit Court, Nos. 50738 and 50759 Leake County, Nos. 50739 and 50740 Neshoba County; Marcus D. Gordon, Judge.

Before ROBERTSON, P. J., and LEE and COFER, JJ.

AFFIRMED.


text:
    Gene STRICKLAND v. STATE of Mississippi.
    No. 51006.
    Supreme Court of Mississippi.
    Dec. 20, 1978.
    Darrell Reeves, Columbus, for appellant.
    A. F. Summer, Atty. Gen., by Wayne Snuggs, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Lowndes County; Harvey Buck, Judge.

Before PATTERSON, C. J., and SUGG and BOWLING, JJ.

AFFIRMED.

SMITH and ROBERTSON, P. JJ., and WALKER, BROOM, LEE and COFER, JJ., concur.


text:
    Phillip VANDERFORD et ux. v. NORTH RIVER INSURANCE COMPANY.
    No. 50749.
    Supreme Court of Mississippi.
    Dec. 20, 1978.
    Windsor & Brewer, A. Horace Brewer, Corinth, for appellants.
    Price & Krohn, James E. Price, Corinth, for appellee.
   Appeal from Chancery Court, Alcorn County; James E. Bost, Chancellor.

Before SMITH, P. J., and LEE and COF-ER, JJ.

AFFIRMED.


author: BRADLEY, Judge.

text:
    OVERHEAD DOOR COMPANY OF BIRMINGHAM, a Division of the Monaghan Company, a corporation v. The FIRST NATIONAL BANK OF TUSKALOOSA, a corporation.
    Civ. 1476.
    Court of Civil Appeals of Alabama.
    Sept. 13, 1978.
    Rehearing Denied Oct. 18, 1978.
    Rodney A. Max of Denaburg, Schoel, Meyerson & Ogle, Birmingham, for appellant.
    Raymond E. Ward of Ray, Oliver & Ward, Tuscaloosa, for appellee.
   BRADLEY, Judge.

This is an appeal by plaintiff-Overhead Door Company of Birmingham from a decree of the Circuit Court of the Tenth Judicial Circuit of Alabama denying the priority of plaintiff’s materialman’s lien over the defendant’s prior recorded real estate mortgage.

The trial court, sitting without a jury, and after a hearing, dismissed the complaint with prejudice on the grounds that the work product subject to the material-man’s lien was not separable from the realty without impairing the value or security of the defendant’s prior mortgage. We affirm.

The facts of the case show that Owens Machinery Company, a seller and a repairer of road machinery, owned approximately five acres of land and the buildings and improvements thereon, all situated in Birmingham, Alabama. One of the buildings on this land was a large metal structure, with a total of ten garage-type, roll-up doors located on both sides of the building. A second building on the property had another of these garage-type doors. These doors allowed large road machines brought in for service and repair to enter and exit the building easily.

The First National Bank of Tuskaloosa, as Trustee of Gulf States Paper Corporation Hourly Employees Retirement Trust, Paper Division (hereinafter referred to as “the Bank”), was the mortgagee of both a first and second mortgage covering the buildings and land owned by Owens Machinery Company. The Bank had acquired the first mortgage by purchase from another lending institution, and had made the second mortgage loan to Owens Machinery in 1964.

Overhead Door Company of Birmingham (hereinafter referred to as “the Company”) was engaged in the business of selling and installing large metal upward-acting doors. Owens Machinery contracted with the Company to install new doors on the above-mentioned buildings at a cost of $11,145. The Company removed the old doors, which had been present at the time the Bank had acquired the mortgages, and completed installation of the new doors on August 17, 1976. The Company’s lien on these doors was filed and recorded on October 6, 1976.

On January 22,1977 the Company obtained a consent judgment against Owens Machinery for nonpayment of the balance due on the new doors. Over the next few months Owens Machinery made several more payments on the debt, reducing the balance due to $5,656.

In April of that year the Bank foreclosed on both mortgages because of defaults in mortgage payments by Owens Machinery during 1976. The Bank was the only bidder at the foreclosure sale. Its bid price was $393,259.36. This total represented the sum of the amount due on the first mortgage ($81,769.82), the amount due on the second mortgage ($308,036.81), and the expenses of foreclosure ($3,452.73).

The suit upon which this appeal is based was filed by the Company asking the circuit court for an order directing the removal and sale of the doors pursuant to Code of Alabama 1975, § 35-11-211 [formerly Tit. 33, § 38, Code of Alabama 1940 (Recomp. 1958)]. The court refused to grant such an order, and the Company appealed.

Testimony at trial indicated that removal of the doors would require the breaking of the weld spots which attach the doors to the buildings, and the removal of the doors’ counterbalances and roller tracks. The removal would cause damage to the buildings in several respects. Blemishes would remain on the doorjambs where the weld spots had been broken. The Bank’s leasehold income from rental of the property would be impaired. And, because the large doors are “extensions of the walls,” their removal would expose the buildings’ interi- or to intruders and to inclement weather.

Plaintiff’s testimony conceded that removal of the doors would decrease the value of the buildings. The plaintiff offered proof that the doors could be replaced, at current prices, for $12,800. An expert real estate appraiser employed by the attorney for the Company testified that the current fair market value of the property subject to the Bank’s mortgage is $475,000, a figure approximately $81,000 higher than the Bank’s bid price at the foreclosure sale.

Plaintiff’s claim is based on Code of Alabama 1975, § 35-11-211 [formerly Tit. 33, § 38, Code of Alabama 1940 (Recomp.1958)], which provides:

[A]nd as to liens, mortgages or incum-brances created prior to the commencement of the work, the lien for such work shall have priority only against the building or improvement, the product of such work which is an entirety, separable from the land, building or improvement subject of the prior lien, mortgage or incum-brance, and which can be removed therefrom without impairing the value or security of any prior lien, mortgage or in-cumbrance .

The trial court correctly stated the two prerequisites to establishing the Company’s claim of priority. The Company must prove that the doors are “separable” from the building; and also prove that the doors can be removed without impairing the value or security of the Bank’s prior mortgage. We believe that the trial court correctly found that the doors are not separable from the buildings without impairing the value or security of the Bank’s mortgage.

The Company argues that the removal of the doors would reduce the appraised value of the property by only $12,800 (i. e. the current cost of replacing the doors) to approximately $462,000. This reduced value would still leave a property value of $462,-000 out of which to satisfy the Bank’s interest of $393,740. However, we believe that this argument is inconsistent with the Alabama Supreme Court’s interpretation of the above-quoted statute in Empire Home Loans, Inc. v. W. C. Bradley Co., 286 Ala. 449, 241 So.2d 317 (1970). In construing the phrase “ ‘without impairing the value or security of any prior mortgage’,” the court stated that the phrase referred to the value or security of the mortgage itself, not to the value or security of the property at the time of the execution of the mortgage. Empire Home Loans, Inc. v. W. C. Bradley Co., supra.

However, the Company argues that Empire Home Loans, Inc. v. W. C. Bradley Co., supra, is inapposite to the case at bar because that case dealt with construction mortgages and the Bank’s mortgages are not of that kind. But this argument ignores the plain language of the statute, which expressly covers “any prior lien, mortgage or encumbrance.” See, Comment, The Priority Problem Between Construction Mortgages and Mechanics’ Liens in Alabama, 6 Cum.Sam.L.Rev. 243 (1975). To accept this argument would require us to ignore the clear expression of legislative intent.

The findings of fact and decree of the lower court after hearing evidence ore tenus are entitled to the presumption of correctness, and will not be disturbed on appeal unless plainly or palpably erroneous. Hicks v. Hicks, Ala., 348 So.2d 1368 (1977). It is clear from the record in this case that removal of the doors would impair the value or security of the Bank’s prior mortgage. There being no error in the trial court’s decision, this case is due to be and is hereby affirmed.

AFFIRMED.

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


author: FAULKNER, Justice.

text:
    Ex parte OVERHEAD DOOR CO. OF BIRMINGHAM, a Division of the Monaghan Co., a corp.
    78-55.
    Supreme Court of Alabama.
    Dec. 22, 1978.
   FAULKNER, Justice.

WRIT DENIED.

TORBERT, C. J., and BLOODWORTH, ALMON and EMBRY, JJ., concur.


text:
    Eleanor PRIMM v. ALABAMA STATE TENURE COMMISSION et al.
    Civ. 1440.
    Court of Civil Appeals of Alabama.
    Dec. 6, 1978.
    Joseph E. Carr, IV, General Counsel, Ala. Education Assn., Montgomery, for appellant.
    J. H. McEniry, III, Sp. Asst. Atty. Gen., for appellees.
   BRADLEY, Judge.

This case involves an appeal from a judgment by the Circuit Court of Jefferson County, Bessemer Division, denying appellant-Eleanor Primm’s petition for a writ of mandamus. Mrs. Primm’s petition for mandamus sought to compel the reversal of an order by the Alabama State Tenure Commission dismissing her appeal from a decision by the Bessemer City Board of Education cancelling her contract as a teacher in the city school system. It is our conclusion that the judgment of the circuit court denying Mrs. Primm’s petition for mandamus should be affirmed.

On November 23, 1976 the assistant superintendent of the Bessemer city schools received a report that Mrs. Primm “reeked” with the smell of alcohol. This was the second such report that the assistant superintendent had received concerning allegations that Mrs. Primm “smelled of alcohol” while at work. After conducting an investigation concerning the November 23 allegation, the assistant superintendent learned from an alcohol breath test administered to Mrs. Primm at a local police station that Mrs. Primm’s alcohol blood content was .037. As a result of this information, the assistant superintendent wrote a letter to Mrs. Primm notifying her that the superintendent’s office of the Bessemer Board of Education planned to cancel her teaching contract. This letter was dated November 23, 1977 and sent to Mrs. Primm by registered mail.

The letter sent by the assistant superintendent to Mrs. Primm stated that the results of the alcohol blood test indicated that Mrs. Primm either had arrived at work intoxicated on the date in question or had consumed alcohol during school hours on the same date. The assistant superintendent’s letter continued by informing Mrs. Primm of the date, time and place at which the charges against her could be refuted and by pointing out to her that in order to contest the proposed cancellation of her teaching contract it would be necessary for her to file with the Bessemer Board of Education a notice that she intended to contest the Board’s action. The date set for allowing Mrs. Primm an opportunity to contest the cancellation of her contract was December 20, 1976. Mrs. Primm did not file notice that she intended to contest the Board’s proposed action subsequent to the letter of November 23.

On December 20, 1976 the Bessemer Board of Education met and concluded that the charges contained in the assistant superintendent’s letter of November 23 warranted a hearing by the Board to determine if Mrs. Primm’s teaching contract should be cancelled. On the basis of the charges and allegations made against Mrs. Primm in the assistant superintendent’s letter to her, the Board passed a resolution that Mrs. Primm be notified that a hearing would be held “at the Office of the Board of Education of Bessemer, Alabama on the 17th day of January, 197[7] at 7:00 P.M. at which time the Board shall determine whether or not said teacher’s contract shall be cancelled.” The Board’s resolution then reiterated the specific charges against Mrs. Primm and stated that she was required to file notice with the Board at least five days prior to January 17 in order to contest the proposed cancellation. A letter containing the resolution of the Board and informing Mrs. Primm of the hearing date as well as the requirements for contesting the cancellation of her contract was then sent to Mrs. Primm. This letter concluded by stating that “unless said contest notice is filed within said time, any actions this Board shall take will be final.”

Following the Board’s resolution of December 20, Mrs. Primm did not file with the Board a notice that she intended to contest the proposed cancellation of her contract.

On January 17, 1977 the Bessemer Board of Education voted unanimously to terminate Mrs. Primm’s contract as a teacher in the Bessemer school system. Mrs. Primm and her attorney were present at the Board meeting but did not attempt to present any evidence to the Board. Her attorney did, however, apprise the Board of her previous unblemished employment record. The lawyer who represented her also stated that Mrs. Primm did not fully understand the contents of the correspondence which she had received from the Board, and on that basis requested that the Board postpone action on the matter. This request was denied.

After the Board terminated her employment by its action of January 17, Mrs. Primm appealed to the Alabama State Tenure Commission. The Tenure Commission dismissed her appeal and she filed a petition for a writ of mandamus with the circuit court. Her petition was subsequently denied by the circuit court, resulting in this appeal.

In its order dismissing Mrs. Primm’s appeal the Tenure Commission concluded that she had no right to proceed before the Commission because she had failed to file notice of intention to contest the cancellation of her contract following the Board’s December 20 notice of the proposed cancellation. In addition, the Commission found that the letter of November 23,1976 did not constitute notice within the meaning of Title 52, section 359, Code of Alabama 1940 (Recomp.1958) (currently found in § 16-24— 9, Code of Alabama 1975). Mrs. Primm contends on appeal that the latter finding resulted from an alteration by the Board of the November 23 letter. Specifically, Mrs. Primm (speaking through her attorney) claims that the letter sent by the assistant superintendent to Mrs. Primm was written on paper containing the letterhead of the Bessemer City Board of Education while the copy of the letter provided to the Tenure Commission was written on plain white paper and deleted any reference to the Bessemer City Board of Education. Thus, Mrs. Primm submits that the letter containing the printed letterhead of the Board of Education for the City of Bessemer demonstrates that the Board authorized the notice sent to Mrs. Primm on November 23 and that the hearing which was subsequently held in mid-January was in excess of the twenty to thirty day period within which hearings concerning the cancellation of teacher contracts must be held. We find no merit to this contention.

In Brown v. Alabama State Tenure Commission, Ala.Civ.App., 349 So.2d 56 (1977), this court in an opinion written by Judge Wright concluded that the cancellation of a teacher’s contract is the sole prerogative of the employing board of education. Moreover, we determined that a school superintendent could not unilaterally and without any consultation with his local board notify a teacher of the proposed cancellation of the latter’s contract in view of the fact that such a procedure was the non-delegable authority and duty of the employing board of education. See Board of Education of Marshall County v. Baugh, 240 Ala. 391, 199 So.2d 822 (1941).

In the instant case there is no evidence that the assistant superintendent had consulted with the members of the Bessemer Board of Education about the allegations against Mrs. Primm prior to sending her the letter of November 23. Instead, it appears that although he lacked authority from the Board, the assistant superintendent nevertheless notified Mrs. Primm that the superintendent’s office proposed to dismiss her and that a hearing would be held at which she could contest such action. Based on our decision in Brown, such notice would have been defective and the Board, apparently realizing this fact, chose to treat the assistant superintendent’s letter as a request to the Board seeking the cancellation of Mrs. Primm’s contract. The Board acquiesced to the request by the assistant superintendent and authorized the notification of Mrs. Primm regarding the date, time and place at which a hearing would be held on the matter. The Board’s decision to notify Mrs. Primm of the proposed cancellation was recorded in the minutes of its meeting on December 20 and we find no defect in the notice provided Mrs. Primm following the Board’s resolution on that date.

Nor can we accept the contention by Mrs. Primm that the use of paper containing a letterhead with the printed name “Bessemer Board of Education” (and its address) constituted either real or apparent authority on the part of the assistant superintendent to act on behalf of the Board. Above the body of the letter is the printed notation “Office of the Superintendent” and the letter is signed “Larry Wilson, Assistant Superintendent, Personnel Affairs.” Thus, it is clear that the assistant superintendent signed the letter in his capacity as an employee with the superintendent’s office and not as a person authorized by the Board to notify the teacher of her proposed dismissal. While a printed name may constitute a signature or demonstrate authority in some instances, we are not persuaded that such symbols are sufficient proof that a board of education has authorized another person to notify a teacher that the board has taken action or plans to take action against the teacher in the absence of evidence which indicates that the board adopted the printed name for such a purpose. See Board of Education of Marshall County v. Baugh.

We are of the opinion that the circuit court did not err in finding that the action of the Tenure Commission was made in compliance with the provisions of the Alabama State Tenure Act and that such action was not unjust. Sections 16-24-1 et seq., Code of Alabama 1975; Sumter County Board of Education v. Alabama State Tenure Commission, Ala., 352 So.2d 1137 (1977). Section 16-24 — 9 of the Alabama State Tenure Act mandates that a teacher file notice of his or her intention to contest an action regarding the cancellation of a teaching contract by a board of education. Such notice must be filed at least five days prior to the date on which the matter is set for hearing, and if no such notice is provided, the employing board’s decision to dismiss the teacher is deemed to be final. Mrs. Primm failed to file any notice with the Bessemer City Board of Education that she planned to contest the cancellation of her contract. Therefore, the Board’s decision terminating her employment as a teacher in the Bessemer city school system was final and the Tenure Commission acted properly in dismissing her appeal.

AFFIRMED.

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


author: HOLMES, Judge.

text:
    Gwendolyn H. EVANS v. Booker W. EVANS, Jr.
    Civ. 1513.
    Court of Civil Appeals of Alabama.
    Dec. 6, 1978.

      Horace N. Lynn, Montgomery, for appellant.
    Clarence M. Small, Montgomery, for ap-pellee.
   HOLMES, Judge.

This is a divorce case.

The wife appeals and contends that the trial court erred in its award of child support and in the division of property. We find that the trial court did not commit reversible error in the award of child support, but did err in the division of property. We, therefore, affirm in part and reverse and remand in part.

It is not necessary to set out in detail the facts. Viewing the record with the attendant presumptions, we find the following: The parties were married in 1960. The union produced three children. The husband is employed as a photographer and earns less than $10,000 per year. The wife is employed as a teacher and with other income earns in excess of $15,000 per year. In addition to the above, there is testimony that the husband owes his employer over $25,000.

The trial court’s decree in parts pertinent to this appeal awarded custody of the children to the wife and required the husband to pay $50 per week as child support. In addition, the husband was ordered to provide hospitalization insurance on behalf of the children and pay all private school tuition and expenses for the children. Certain property, both real and personal, was awarded to each of the parties. The wife was awarded the use of the homeplace during the minority of the children. Thereafter, the homeplace was to be sold and the proceeds equally divided between the parties. The wife, in the decree of divorce, was required to make the mortgage payments on the homeplace during the minority of the children.

Much discretion is left with the trial court in determining the amount to be paid for support of the children. See Whiteport v. Whiteport, 283 Ala. 704, 220 So.2d 891 (1969); 8 Ala.Digest Divorce @=296. In view of the facts, as indicated above as they relate to child support, we find no abuse of discretion so as to require reversal.

We do find reversible error in the disposition of the homeplace.

As indicated above, the wife was allowed to live in the homeplace during the minority of the children. Thereafter, the homeplace was to be sold and the proceeds from the sale to be equally divided. The wife, however, was required to make the mortgage payments on the homeplace during the minority of the children, i. e., until the house was sold. We find this aspect of the decree is impermissible.

In Bailey v. Bailey, Ala.Civ.App., 345 So.2d 304 (1977), this court held that where the homeplace was awarded to the husband, who was awarded custody of the minor children, for his use during the minority of the children at which time the property was to be sold and the proceeds equally divided, was error. We found in Bailey, supra, that such a decree was in effect a directive that the wife pay the former husband alimony. This was so because the husband acquired the use of the wife’s one-half interest in the home during the children’s minority and thus she was contributing her property for his maintenance and support. The law of Alabama does not permit an award of alimony to the husband. See Davis v. Davis, 279 Ala. 643, 189 So.2d 158 (1966); Baggett v. Baggett, 47 Ala.App. 539, 258 So.2d 735 (1972).

The reasoning of Bailey applies equally well here. If the award of the use of a wife’s one-half interest in jointly held property to the husband during the minority of the children in Bailey was in effect an award of alimony, then clearly the award in this instance, which requires the wife to make the mortgage payments on the home-place with the homeplace to be sold at a later date with the proceeds to be equally divided, is an award of alimony to the husband.

A similar, but not exact situation as we now consider, was before this court in Ledyard v. Ledyard, 46 Ala.App. 27, 237 So.2d 511 (1970). However, in Ledyard, supra, the wife was not required to make the mortgage payments. Even so, this court held such an award to be impermissible and reversed. The solution suggested by this court in Ledyard, or some similar type of solution as the trial court might determine, is indicated in this instance.

In view of the above, we have no alternative other than to reverse and remand the case as it relates to the entire division of property.

In considering an appropriate division of property, the trial court should keep in mind what we have stated herein.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

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

      . Approximately thirteen years.


author: WRIGHT, Presiding Judge.

text:
    Paulette Malone EVANS v. O. William EVANS
    Civ. 1563.
    Court of Civil Appeals of Alabama.
    Dec. 6, 1978.
    Robert Prince of McDuffie, Holcombe & Prince, Tuscaloosa, for appellant.

      Sam M. Phelps of Phelps, Owens, Jenkins & Gibson, Tuscaloosa, for appellee.
   WRIGHT, Presiding Judge.

This is an appeal from a grant of summary judgment. We reverse.

The issue is whether the trial court correctly granted motion for summary judgment to defendant as a matter of law upon a Rule 60(b) motion charging fraud because the motion was not filed within four months after judgment.

There was originally a divorce granted upon the petition and testimony of the wife. The judgment for divorce incorporated an agreement of the parties as to custody of children and their support and as to property settlement. The judgment was granted on April 18, 1977. In January 1978, the wife filed a petition against the husband to show cause why he should not be held in contempt of court for failure to comply with the judgment of divorce. As a second aspect of the petition the wife charged the divorce was obtained through fraud, threats, and intimidation committed upon her by the husband. She requested that the divorce be set aside or modified. The husband first answered by general denial and subsequently moved for judgment on the pleadings, or for summary judgment upon the second aspect of the petition requesting the setting aside of the judgment. As grounds for his motion the husband pleaded the four-month limitation applicable to a Rule 60(b)(3) motion to set aside a judgment for fraud.

In response to husband’s motion, the wife conceded that more than four months had elapsed since entry of the divorce and requested that the court consider her petition as an independent action and proceed to judgment thereon, or in the alternative to dismiss the matter without prejudice so that an independent action could be filed.

The matter proceeded to hearing on the pleadings and argument of counsel. The court granted summary judgment and dismissed the petition with prejudice, stating that its order was based on the stipulated fact that the divorce had been granted more than four months, and the charge that it was procured by fraud was barred by the four-month limitation of Rule 60(b) ARCP.

The wife appeals and submits that the trial court erred when it granted summary judgment to the husband without considering the merits of her petition to set aside on the ground of fraud solely on the fact of the expiration of four months since judgment. She contends the decisions in the cases of Brice v. Brice, 340 So.2d 795 (Ala.Civ.App.1976) and Crisco v. Crisco, 294 Ala. 168, 313 So.2d 529 (1975), are decisive precedents in this case. We agree and reverse.

Defendant defends the action of the trial court in brief with the contention that it is within the discretion of the trial court as to whether or not it will treat a motion to set aside a judgment for fraud as an independent action if the four months have expired for filing under Rule 60(b)(3). Defendant extended that contention further in oral argument by submitting that if the four months have expired, there is a burden upon the movant to present good excuse for not having filed within four months. His argument is, in effect, that the filing of a 60(b)(3) motion is an exclusive remedy during four months from judgment and the allowance of an independent action thereafter is discretionary with the court depending upon good excuse for not filing under 60(b)(3) within four months.

Defendant’s argument is interesting if one assumes that the remedy provided by' 60(b)(3) is exclusive for the first four months and that the right to a independent action arises only in instances where for good excuse action under 60(b)(3) was not taken. However, defendant’s argument loses its efficacy when it is considered that the relief provided by 60(b)(3) is not new and was available by statute long before the adoption of the ARCP. From the time of the first enactment of the statute, our Supreme Court has repeatedly stated that the remedy of the four months statute is not exclusive but is merely cumulative with that provided by the ancient bill of review in equity. In fact, defendant’s argument is as old as the statute. It was apparently-made to the court in the trial of the case of Evans v. Wilhite, 167 Ala. 587, 590, 52 So. 845, 846, prior to 1910. The court said in that case:

“The probable theory upon which the chancellor proceeded was that the bill failed to aver that complainant was ignorant of the judgment being taken against him, until after the expiration of four months, within which time he could have obtained the relief desired by application to the circuit court which rendered the judgment; in other words, that the bill in this respect failed to show due diligence, and therein failed to show that complainant did not have a complete and adequate remedy at law. If this be the theory upon which the chancellor dismissed the bill, it is untenable. While the four months (Sec. 5372 of the Code of 1907) may have afforded the necessary relief in a court of law, from any judgment such as the one here sought to be vacated, yet it is not the exclusive mode of relief, but is concurrent and cumulative with that of equity.”

This statement is now exemplified in Rule 60(b) when by way of confirming existing law, it is provided, “This rule does not limit the power of a court to entertain an independent action within a reasonable time and not to exceed three years after the entry of the judgment ... to relieve a party from a judgment, order, or proceeding, or to set aside a judgment for fraud upon the court.”

It is the opinion of this court that the clear words of the judgment of the trial court indicate that a statute of limitation of four months was imposed upon the right of the wife to set aside the judgment for fraud. The court stated that the fact as to which there was no dispute, and upon which it granted summary judgment, was the expiration of four months. This determination was one of law and not an exercise of discretion.

Defendant argues that the granting or denial of a 60(b) motion is a matter of discretion. We find no fault with that argument, but such discretion is exercised after hearing on the merits of the motion. That was not done here. The court determined as a matter of law, from the pleadings, imposing a statute of limitations, that plaintiff had no right to be heard on the merits of her claims of fraud. It is for that act of exclusion from remedy, a dismissal of her petition with prejudice, that we find error.

We do not determine if entertaining a 60(b) motion as an independent action is discretionary with the trial court. That is clearly not the basis of the judgment in this case. However, in light of the purpose and policy of the Rules of Practice and Procedure as stated in Rules 1 and 2, it would appear contrary thereto if the trial court required a separate and independent action after the filing of a motion to set aside a judgment for fraud. The judgment below is reversed and set aside.

REVERSED AND REMANDED.

BRADLEY and HOLMES, JJ., concur.