author: BEER, Judge. REDMANN, Judge,

text:
    Mrs. Josephine C. BONVILLIAN, widow of Joseph E. Bonvillian v. The LOUISIANA COCA-COLA BOTTLING CO., LTD., and its President, Richard W. Freeman, Jr., and its Secretary, Ronald H. Schrolder, and the Retirement Plan Committee of the Louisiana Coca-Cola Bottling Co., Ltd., and the Individual members thereof, and S. V. Vallot.
    No. 9852.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 6, 1979.
    Writ Refused March 23, 1979.
    John E. Jackson, Baldwin J. Allen, John E. Jackson, Jr., New Orleans, and Joseph K. clay, Jefferson, for plaintiff-appellant,
    Jones, Walker, Waechter, Poitevent, Carrere & Denegre, Harry S. Hardin, III, New Orleans, for defendants-appellees.
    Before REDMANN, STOULIG and BEER, JJ.
   BEER, Judge.

Mrs. Josephine C. Bonvillian sued the Louisiana Coca-Cola Bottling Company, Ltd. (hereafter, “company”), its president, its secretary, its Retirement Plan Committee and the individual members thereof, and the company’s employee, S. V. Yallot, seeking funds allegedly due her by reason of her status as widow and beneficiary of her deceased husband who had been a participant in the retirement plan for employees of the company. After trial on the merits, the district court entered judgment in favor of defendants, dismissing plaintiff’s suit and holding that:

“The evidence indicates that the plaintiff did not elect to adopt the new retirement program.”

Mrs. Bonvillian devolutively appeals. We affirm.

Joseph E. Bonvillian, the deceased husband of petitioner, had been an employee of Louisiana Coca-Cola Bottling Company, Ltd. for approximately 30 years. As such, he was covered by various employee benefit plans which made provision — depending upon circumstances — for short term disability income, long term disability income, group life insurance, group health insurance as well as “early” or at-age-65 retirement benefits. Premiums to cover these various contingent programs were, essentially, paid by the company except that Mr. Bonvillian had opted to pay for an additional $6,000 of life insurance coverage over the $9,000 paid for by the company. When Mr. Bonvillian reached his 55th birthday in 1962, he became eligible for early retirement under the existent plan but did not choose to exercise this option. He continued as a full time employee until 1970 when he became ill and, as a result, exercised his right to a disability leave of absence because of illness. At that time, in addition to payments of $50 a week during 13 weeks of so-called short term disability, he received benefits under the hospitalization plan for hospital costs, doctor’s fees and prescription costs. Though his short term disability plan benefits were exhausted by his continued illness, he then, in accordance with the plan, became eligible for long term disability benefits of approximately $206 per month. He submitted the necessary request for the payment of these benefits and received same until he died on April 23,1971. Upon his death, his wife (appellant, here) received the proceeds of the $15,000 life insurance coverage previously referred to. However, since Mr. Bonvillian had not elected to retire early, and died before reaching 65, the ordinary retirement age, the company rejected the claim by his widow that she was entitled to receive monthly retirement benefits under the company’s early retirement plan in the amount of $92 per month for a period of ten years. That rejection precipitated this litigation.

Appellant’s able counsel vigorously contends that Mr. Bonvillian’s vested interest (uncontested) in the plan constituted an irrevocable entitlement to retirement benefits by him and, upon his death, by his widow. Furthermore, he contends that portions of the plan requiring interpretation must be interpreted against the company and, finally, that the company breached its duty to make clear the provisions, advantages and disadvantages of the plan so that Mr. Bonvillian might have made a more prudent election — if, indeed, any election was necessary. We disagree.

At the time that Mr. Bonvillian exhausted his entitlement to short term disability payments by reason of his continued and unabated disability, he was notified by the company of his right to continued payments — under the long term disability coverage provisions of the benefit plan — provided only that he tender to the company evidence of his continued disability.

There were many advantages to his opting in this direction, not the least of which was the payment of $206 per month during the long term disability as well as continuation of hospitalization coverage and life insurance coverage. However, counsel for Mrs. Bonvillian insists that the company should have more affirmatively delineated Bonvillian’s right — as of that time — to opt for early retirement. Had this option been exercised and approved, the result would have been markedly reduced payments to Bonvillian of $92 per month (in lieu of $206 per month and other benefits), but such payments, instead of continuing only during Bonvillian’s lifetime, would have continued to his widow until a total of ten years of payments had been made.

The record indicates, and the trial judge apparently concluded, that the options were fully explained.

About the time that Bonvillian’s request for long term disability payments was forwarded to the company, the company’s agent, Mr. Vallot, met with Mr. Bonvillian’s son and only child, who, himself, is controller and internal auditor for Edwards Engineering Company of Atlanta, Georgia and a mature father of three children, one of whom was attending school in New Orleans at the time. Vallot’s testimony is clear and unequivocal regarding that meeting:

“Q. What did you explain to him?
A. I explained to him what the long term disability situation was as opposed to the early retirement.”

Pretermitting, arguendo, the prescriptive issue vigorously raised by able counsel for appellee, we find no breach of any fiduciary duty on the part of the company. To hold otherwise would, on the facts here found, require the company not only to have advised Mr. Bonvillian or his representative (in this case, his son) what alternatives were available but also which option should, in fact, be chosen on the basis of Bonvilli-an’s questionable life expectancy. Though the medical reports and other data available to the company indicate that, among other problems, Bonvillian had cancer, there is no indication that the company knew or should have known that death was imminent, and we find no basis for imposing an obligation on the company to have gone to the extent of making such determination and advising on the basis of same in the reasonable operation of its coordinated employee benefit program. To impose such a burden would, we believe, have the effect of discouraging rather than encouraging employee benefit programs by imposing an unreasonable fiduciary responsibility.

Finally, for such consideration as a reviewing court may wish to give, we take notice of Gediman v. Anheuser Busch, Inc., 299 F.2d 537 (2d Cir. 1962), and the reliance therein on Section 552 of the Restatement of Torts to form the basis for concluding that relationships such as that which existed in this case between the company and Bonvillian are “. . . plainly of the sort, described in the Restatement, where negligent communication, or failure to communicate with clarity, may give rise to liability. . . .” (Emphasis ours.) Thus, in our view, LSA — C.C. art. 3536, would apply, and the plea of prescription urged by the company but overruled by the trial court should have been maintained.

The judgment is affirmed, at appellant’s cost.

AFFIRMED.

REDMANN, J., dissents.

REDMANN, Judge,

dissenting.

Employees earn the wages and other rights of their employment such as life and medical insurance, disability leave, and pension benefits including survivorship benefits whatever be the rights provided by the terms of their employment contracts. Those rights once provided belong to the employees. An employer may not under any guise deny to the employee the benefits that he has already earned.

Yet the judgment here allows him to do so. The deceased employee earned the fringe benefits of his employment: $9,000 life insurance policy with premiums paid by the employer (the other $6,000 the employee voluntarily elected and paid for); medical insurance; short- and long-term disability benefits; retirement plan with survivorship benefits in which he had a concededly vested interest worth $4,912. All of these advantages were earned; none of them was a gift. Yet the trial court’s judgment denies retirement survivorship benefits to the employee’s widow. The explanation is that the employee had not elected to retire and that the widow got life insurance proceeds. Counsel concedes nevertheless that any employee receiving disability pay could have elected just before his death to retire: in which case his widow would collect both the life insurance proceeds and the retirement survivorship benefits. Thus defendants rely upon a cruelly capricious contractual provision which purports to deny survivor-ship benefits to the employee’s widow for the two wholly unrelated reasons that (1) the employee had insurance and (2) the husband did not exercise his vested right to retire before his death.

One recognizes the fairness of an integrated wage-replacement system. An employer should not have to pay both disability benefits and retirement benefits at the same time (and surely not workmen’s compensation benefits as well). No doubt defendants’ wage-replacement plan intended an integration or correlation of benefits to prevent double wage-replacement. But they have gone far beyond that fair goal. They have denied not a duplicate wage-replacement; they have denied all wage-replacement. They make the widow pay again for the insurance her husband’s labor has already earned.

Unless it be unenforceable error — which defendants refuse to concede — there is no other explanation for defendants’ caprice except unenforceable greed. In either case plaintiff should recover.

      . When Mr. Bonvillian died on April 23, 1971, the retirement plan for employees of the company was a new plan (adopted April 1, 1971), but it did not change the basic benefits which Mr. Bonvillian was entitled to receive and — insofar as the critical facts of this case are concerned — was essentially unchanged from the overall plan long in effect.

      . When Mr. Bonvillian died, his group life insurance coverage of $15,000 was far in excess of the amount which had accrued to his benefit in the retirement plan ($4,912.15). Thus, the $15,000 payment constituted the “Minimum Death Benefit” as provided for in the plan.


source: Caselaw Access Project

author: GULOTTA, Judge.

license: Public Domain

text:
    SECURITY INSURANCE CO. OF HARTFORD v. Russell HOLLIDAY, Sr.
    No. 9855.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 6, 1979.
    Rehearing Denied March 14, 1979.

      Rudolph R. Schoemann, Bruce G. Buhler, New Orleans, for plaintiff/appellee.
    Samuel W. Ethridge, Kenner, for garnishee/appellant.
    Before GULOTTA, BOUTALL and GARRISON, JJ.
   GULOTTA, Judge.

Garnishee, Glenn D. Rogers, appeals from an adverse money judgment in favor of plaintiff. We affirm.

The attack by garnishee on the validity of the garnishment proceedings and the judgment rendered against him is three-fold.

First, Rogers claims the rule to show cause filed against the garnishee for the amount of the unpaid judgment requires personal service. Personal service of the supplemental petition and interrogatories was made on the garnishee. However, domiciliary service of the rule was made on garnishee’s wife.

Second, relying on LSA-C.C.P. art. 1155, the garnishee contends that the supplemental petition in the garnishment proceeding requires “ruling the garnishee into court.” Although not clear, garnishee apparently claims that the supplemental petition and interrogatories- must be accompanied by a rule to show cause why the petition and interrogatories should not be answered.

Third, garnishee claims LSA-C.C.P. art. 2411, requires that garnishee not only be served with a copy of the supplemental petition and the interrogatories but also with a copy of the original petition filed against the defendant in the matter. Because the original petition was not attached to the supplemental petition and interrogatories in the garnishment proceedings, garnishee claims the garnishment is fatal and plaintiff is not entitled to judgment.

We find no merit to these contentions. Considering garnishee’s arguments in the order in which they are presented, we reject the first argument that personal service is required of the rule to show cause against the garnishee for the amount of the unpaid judgment. LSA-C.C.P. art. 2412 requires personal service of the supplemental petition and interrogatories where the garnishee is an individual. No mention is made in LSA-C.C.P. art. 2413 of the type of service required of the rule filed against the garnishee.

As pointed out by plaintiff, the Court stated in Barnett Home Appliance Corporation v. Guidry, 224 So.2d 134 (La.App. 3rd Cir., 1969), that the contradictory motion referred to in LSA-C.C.P. art. 2413 is in the nature of a summary proceeding. However, LSA-C.C.P. art. 2594, relating to summary proceedings, merely states that the rule to show cause “shall be served upon defendant.” Furthermore, the rules governing ordinary proceedings are applicable to summary proceedings. LSA-C.C.P. art. 2596. In ordinary proceedings, service of citation or other process may be either personal or domiciliary “except as otherwise provided by law.” LSA-C.C.P. art. 1231. Because LSA-C.C.P. art. 2413 is silent as to the type of service required of the rule to show cause in the garnishment proceedings, we conclude personal service is not required and proper domiciliary service is sufficient.

We reject also the remaining procedural arguments raised by garnishee, i. e., that the supplemental petition and interrogatories must be accompanied by a rule to show cause and that the original petition should have been attached to the supplemental petition and interrogatories. Nowhere in LSA-C.C.P. art. 2411, et seq., or in any of the Code of Civil Procedure Articles relating to garnishment are there any requirements as suggested by garnishee in his arguments.

It is true, as pointed out by garnishee, that in Lovell v. Cartwright, 17 La. 547 (1841) the court, in applying the garnishment articles 246 through 252 of the Old Code of Practice, concluded that a copy of the original petition must be attached to the supplemental petition and interrogatories and served on the garnishee. However, the Code of Practice articles relied on by the Lovell Court were superceded by LSA-C.C.P. arts. 2411 and 2412. The requirements of the Code of Practice articles as interpreted by the Lovell Court were eliminated in the New Code of Civil Procedure. Furthermore, unlike the supplemental petition in Lovell, the supplemental petition and interrogatories in our case inform the garnishee of the judgment rendered against the defendant and the amount of that judgment.

The circumstances considered, we conclude the garnishment proceedings are in conformity with LSA-C.C.P. arts. 2411 and 2412. The judgment is affirmed.

AFFIRMED.

      . LSA-C.C.P. Art. 1155 reads as follows:
      Art. 1155. Supplemental pleadings.
      “The court, on motion of a party, upon reasonable notice and upon such terms as are just, may permit mover to file a supplemental petition or answer setting forth items of damage, causes of action or defenses which have become exigible since the date of filing the original petition or answer, and which are related to or connected with the causes of action or defenses asserted therein.”

      . LSA-C.C.P. Art. 2411 reads as follows:
      Art. 2411. Garnishee; effect of service.
      “The judgment creditor, by petition and after the issuance of a writ of fieri facias, may cause a third person to be cited as a garnishee to declare under oath what property he has in his possession or under his control belonging to the judgment debtor and in what amount he is indebted to him, even though the debt may not be due. He may require the third person to answer categorically and under oath the interrogatories annexed to the petition within the delay provided by Article 2412.”


author: SCHOTT, Judge.

text:
    Hazel L. McMILLER v. The NEW ORLEANS PUBLIC SERVICE, INC.
    No. 9860.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 6, 1979.

      Frank S. Bruno, New Orleans, for plaintiff-appellee.
    Floyd F. Greene, New Orleans, for defendant-appellant.
    Before SAMUEL, LEMMON and SCHOTT, JJ.
   SCHOTT, Judge.

Plaintiff was awarded workmen’s compensation benefits for a total and permanent disability. She was injured on May 26, 1975, when she was operating a bus for defendant and the seat collapsed. Defendant has appealed from the judgment contesting disability and she has answered the appeal seeking statutory penalties and attorney’s fees.

Upon being examined by defendant’s physician shortly after the accident plaintiff was referred to Dr. Robert L. Appleb-aum, a neurosurgeon. Following a myelo-gram in June a laminectomy and removal of a free fragment of disc between L-5 and S — 1 were performed. According to this physician she made an excellent convalescence and he felt that she could return to her usual occupation on December 8, 1975.

On December 22, 1975, plaintiff returned to work and drove a bus but she did not return after that one day. She stated that she experienced great pain. She returned to Dr. Applebaum in January, 1976, was examined by one of his associates, and was advised to remain at home and to return to his office the following month. On March 17 plaintiff was still complaining of pain on her visit to Dr. Applebaum, and also complained about recent swelling in her right knee and calf. Dr. Applebaum found the calf to be slightly swollen and thought there might be a recurrence of phlebitis which had developed after the surgery and he advised plaintiff to restrict her activities for two weeks.

Plaintiff returned to Dr. Applebaum on April 28, reporting that she had returned to limited duty for about two weeks in the first part of that month but had quit because of increasing pain in her back. Dr. Applebaum advised her to restrict her activities and to return the following month. He also referred her to an orthopedist, Dr. Hyman Soboloff. By the time of the next visit on May 10, 1976, Dr. Applebaum felt that she could return to light duty and noted that this opinion was shared by Dr. Soboloff who had been treating her knee. By June she was still complaining of pain in her back and stated that she had not returned to light duty because she had been fired. Another myelogram in June showed no evidence of recurrent disc. She continued to receive physiotherapy on a thrice weekly basis. In the meantime she was scheduled for knee surgery on the knee in July, 1976, under the care of Dr. Soboloff. The next time Dr. Applebaum saw her was in November, 1976, when she was still complaining of intermittent pain in the low back, but on examination he discharged her because he felt there was no need for further neurosurgery or neurological procedures.

It was at this point that Dr. Applebaum on November 17, 1976, advised defendant as follows:

“. . . From a neurologic point of view, I felt there was no reason the patient could not return to her usual and customary occupation. The patient has a five to ten per cent partial permanent .disability of the body as a result of her lumbar laminectomy. This is an anatomical rating and should not be confused with a functional disability.”

Plaintiff returned to Dr. Applebaum on May 10, 1977, complaining of pain in her low back on a constant basis. Examination revealed minimal limitation of motion in the low back but no muscle spasm and a normal lumbosacral curve. He concluded that there was no evidence of disc disease or nerve irritation and recommended orthopedic evaluation if her back pain persisted. In November and December, 1977, she returned to him with similar complaints and similar findings by the doctor, and after the November visit he reaffirmed that there was no reason she could not perform her duties as a bus driver. On cross examination, Dr. Applebaum admitted that his opinion of plaintiff’s disability was strictly from the standpoint of a neurosurgeon and recognized that she might have some disability which would be within the expertise of an orthopedist.

When plaintiff first saw Dr. Soboloff on April 20,1976, she complained of soreness in the back. On examination he found no muscle spasm but did find tightness “all across the low back area.” From X-rays he found narrowing of the disc space between L-5 and S-l and prescribed intensive physical therapy and medication. By May 24 she had improved but she was then complaining of soreness in the knee. X-rays revealed a loose body in the knee and he recommended surgery to remove the loose body. In his opinion, the knee problem would cause her more difficulty with the back. The knee surgery was accomplished on July 7 and she was discharged on crutches from the hospital on July 16.

Plaintiff continued under Dr. Soboloff’s care until April 1,1977, and throughout this period of time his treatment was directed to the knee and not the back. On August 13 she was fitted with a brace and on August 27 she got off the crutches and began to use a cane. Her range of motion increased and by September 17 she could walk without the cane. Over the next few months she gradually improved with a program of exercise, heat therapy and use of the brace. By February, 1977, Dr. Soboloff found no swelling and a full range of motion and he felt that she could return to work as a bus driver, although “she had a ten per cent loss of function, on a permanent partial basis, of the right knee as a result of the injury and the surgery.” Based on his final examination of plaintiff on April 1,1977, he believed she could drive buses because he understood that they were equipped with power steering and power brakes.

Asked what would cause such a knee problem Dr. Soboloff testified: “It could either be developmental, something that she had in her growth development stages. Usually in their teens we see them occur, and occasionally before that. Or, it can be as a result of trauma.” He explained that when he first saw plaintiff she didn’t complain about her knee because her back was so stiff but as the back improved she noted more pain in the knee. In the history she gave she did not mention any trauma to the knee.

In March, 1977, plaintiff was referred to Dr. James Williams for examination at the request of the Social Security Administration. X-ray photographs revealed that the disc space had narrowed between L-5 and S-l, and he felt that this explained her complaints of pain. He felt that she would probably benefit from a lumbar spine fusion. In his opinion the complaints were caused by the accident and he felt that plaintiff was disabled from performing the duties of operating a bus because she would suffer a significant degree of pain from remaining in a seated position and the jarring motion of the bus.

Plaintiff was examined by Dr. Bernard Manale, an orthopedic surgeon, on November 2,1977, one month before the trial. He stated that she had residual symptoms and objective evidence of nerve root impairment, and that she should not operate a bus since it would require long sitting.

The evidence of residual disability in plaintiff’s back is not seriously contradicted by defendant. Dr. Applebaum would not state that plaintiff was not disabled from an orthopedic point of view and consequently in no way contradicted the testimony of the two orthopedists whom plaintiff produced. Furthermore, Dr. Soboloff, who was not primarily concerned with her back problems, indicated in response to hypothetical questions put to him by plaintiff’s counsel that a person with a history of laminectomy and discotomy would be prevented by pain from sitting over a long period of time and this would be particularly true if plaintiff, while operating a bus, is required to bend her back while in the process of turning the bus.

In his reasons for judgment the trial judge apparently held that plaintiff was disabled as a result of her back injury, but concluded that there was no causal connection shown between the accident and the knee injury based on the lapse of time between the accident and her complaints about the knee. He apparently rejected the testimony of plaintiff that she struck her knee on the fare box when the seat collapsed. It seems to be conceded by both parties that the knee injury is not the com-pensable injury, and the question before us is if the trial judge was correct in finding plaintiff permanently and totally disabled as a result of the back injury alone.

On this issue, the trial judge stated that he was impressed with plaintiff’s good work record prior to the accident and her willingness to submit to repeated medical procedures during the course of her treatment. He felt that she “presents a sincere position to me, and that the symptoms she now complains of are real . . . ” He found that she was at a disadvantage to compete for a job as a bus driver because she would require a job especially tailored for her especially considering her size, her status as a female and her history of multiple injuries. He further noted that her physical limitations resulting from her accident would create safety problems for the occupants of the bus and she would be required to work with pain.

These facts are supported by the evidence in the record and the legal conclusion that she is entitled to total and permanent disability benefits is supported most recently by Cousins v. Lummus Company, et al., 364 So.2d 993 (La.1978). There plaintiff was held entitled to such benefits because his work caused disability and incapacity to perform some of the substantial duties of his employment placed him at a disadvantage in the labor market. Of course that case, like the instant case, was decided under the then applicable compensation statute. See also, Futrell v. Hartford Accident & Indemnity Company, 276 So.2d 271 (La.1973).

The issue of penalties and attorney’s fees was characterized by the trial judge as “a close question.” In his reasons, the trial judge seemed preoccupied with the knee injury as he decided the question of penalties and attorney’s fees. He was apparently convinced that had plaintiff proved causation between the knee injury and the accident defendant would have been liable for penalties if the amount due her for the partial disability resulting from the knee would have exceeded the amount of full compensation she had received until March 24, 1977, when payments were terminated. But having found that the knee injury was not compensable he concluded that she was not entitled to penalties.

On appeal, plaintiff contends that the failure of defendant to pay compensation for the back injury was arbitrary and unreasonable and subjects them to the penalties and attorney’s fees.

In Tyler v. Owens Illinois, Inc., 289 So.2d 893 (La.App. 4th Cir. 1974) we held that penalties and attorney’s fees cannot be imposed where the defendant reasonably relied on the report of the treating physician who was of the opinion that plaintiff could return to work. In the instant case plaintiff was paid compensation benefits until March 24, 1977. Defendant had received a report from Dr. Applebaum to the effect that plaintiff could return to her usual and customary occupation. That opinion was qualified in two respects; 1) that it was given from a “neurological point of view” and 2) that plaintiff did have a five to ten per cent partial permanent anatomical as opposed to functional disability. This opinion was supplemented by that of the orthopedist, Dr. Soboloff, on February 4, 1977, in which he stated that plaintiff was capable of returning to her regular work status. In that report to defendant Dr. Soboloff devoted his exclusive attention to plaintiff’s knee problem and made no mention of her back problem. In this court plaintiff makes much of Dr. Applebaum’s rating of an anatomical disability, but we understand this to mean and the doctor so testified that an anatomical disability automatically results when a part of the patient’s body has been removed as in a laminectomy. It is in no way intended to mean a functional disability-

Plaintiff relies heavily on a report to defendant by Dr. Applebaum dated September, 1977, of a neurosurgical examination just conducted on plaintiff. He stated that there was no evidence of disease or damage involving the brain, spinal cord or nerve roots, and no need for further neuro-surgical procedures, but he concluded his report with the sentence: “Should her back pain persist, orthopedic re-evaluation would be indicated.”

By this time the instant suit had been filed on July 5, 1977. At the time compensation benefits were terminated in March and the suit was filed two months later, defendant did not have the benefit of any suggestion from Dr. Applebaum that the disability might be diagnosed by an orthopedist. The report by Dr. Williams was not available to defendant and came to light for the first time at the trial. Dr. Manale, the other orthopedist, did not examine plaintiff until shortly before trial. Thus, the ultimate determination of plaintiff’s back disability rested on the reports of the last mentioned two physicians which did not become available until the actual trial of the case. These circumstances do not support plaintiff’s argument that defendant’s conduct was arbitrary and unreasonable. See Broussard v. Subsurface Completion Serv., Inc., 338 So.2d 1217 (La.App. 3rd Cir. 1976).

Finally, the question of liability for penalties and attorney’s fees is a mixed one of law and fact and we are not persuaded that the evidence is such as to justify reversal of the decision of the trial court in this case that defendant was not arbitrary and unreasonable when compensation payments to plaintiff were terminated.

The judgment appealed from is affirmed.

AFFIRMED.

      . This testimony should be considered in the light of the testimony by plaintiff and another female bus driver she produced to the effect that the brake system on the bus does not operate with the same facility as power brakes on an automobile but requires some physical pumping of the brakes for activation.


author: GARRISON, Judge.

text:
    John L. WHITE et al. v. Sarges ROBINSON, Mitchell Robinson and Joan Lyons.
    No. 10038.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 6, 1979.
    Writ Refused March 23, 1979.

      O’Keefe, O’Keefe & Berrigan, E. John Litchfield, Charles R. Maloney, New Orleans, for plaintiffs-appellants.
    William S. Marshall, Jr., New Orleans, for defendants-appellees.
    Before GULOTTA, BOUTALL and GARRISON, JJ.
   GARRISON, Judge.

This is an appeal from a summary judgment dismissing an insurer from a lawsuit. We affirm. There is no genuine issue of material fact and the insurer should be dismissed as a matter of law.

John L. White was involved in a collision with an automobile owned by Sarge’s Inc., which sells and leases used cars. Georgia Casualty and Surety Company issued an insurance policy to Sarge’s Inc. The facts of the accident are not an issue of this appeal. This appeal concerns only the insurance coverage offered by Georgia Casualty and Surety Company.

Appellants, heirs of John White, allege that there is a material issue of fact in that the insurance company’s answer refers to Policy No. 13278 whereas Policy No. 15026 was introduced into the record. However, by examining Policy No. 15026 it is clear that it is merely the renewal of Policy No. 13278, and that Policy No. 15026 was in effect on the date of the accident.

The affidavit of R. Keith Edwards, the treasurer of Sarge’s Inc., stated that the vehicle involved in the accident had been leased to Mary C. Robinson who was never an agent nor a salesperson of Sarge’s Inc. and further, that she was not using the vehicle described in the attached lease agreement while a vehicle owned by her was temporarily left with Sarge’s for service or repair. Mr. Edwards stated that Sarge’s Inc. does not do repair work. A deposition obtained from Edwards was consistent with his affidavit.

The insurance policy in question provides coverage for Automobile Physical Damage and Garage Insurance. The Automobile Physical Damage Insurance protects the vehicles from property damage pending sale while they are under the control of the insured. Since the car involved had been leased and was not under the control of Sarge’s Inc., this coverage is inapplicable and bears no relationship to appellants’ claim, based upon the aforementioned collision. The remaining policy coverage provides Garage Insurance. This policy specifically states:

“Exclusions
This insurance does not apply, under the Garage Liability Coverages .
e) to bodily injury or property damage arising out of the ownership, maintenance, use, loading or unloading of any
2) Automobile .
ii) while rented to others by the named insured unless to a salesman for use primarily on the business of the named insured . . . ”

Thus it is clear that coverage is not provided for the accident in question. The automobile was leased by Sarge’s Inc. and a copy of the lease is in the record. The lessee was not a salesman and the car was not being used in the business of the lessor.

The same exclusion clause was interpreted in Matt v. Hartford Accident & Indemnity Company, 212 So.2d 284 (La.App. 3rd Cir. 1968). There the court stated:

“The language used in the exclusion clause in the policy in the instant case is not ambiguous. It must be enforced as written. The policy expressly excludes ‘any automobile * * * while rented to others by the named insured * * The facts show this accident happened while the automobile was rented to Vid-rine by the named insured.” 212 So.2d 284, 286.

Appellants also argue that the policy was “in full force and effect” at the time of the accident. This is true. However, that does not mean that it necessarily provided coverage for the type of accident in question. The instant policy expressly excluded coverage for this type of accident. Andrus v. Police Jury of Parish of Lafayette, 270 So.2d 280 (La.App. 3rd Cir. 1972).

Appellants contend that Georgia Casualty & Surety Company owes its insured a defense. There is no merit in the argument. A defense is owed only when the policy provides coverage. Audubon Coin & Stamp Co. v. Alford Safe & Lock Co., 230 So.2d 278 (La.App. 1st Cir. 1969). See also Champion v. Farm Bureau Ins. Co., 352 So.2d 737 (La.App. 3rd Cir. 1977) writ refused 354 So.2d 1050 (La.).

Summary judgment in this case was proper. The pleadings, affidavits and deposition show that as a matter of law the subject insurance policy simply did not afford coverage to the type of incident involved. Employers’ Surplus Line Ins. Co. v. City of Baton Rouge, 362 So.2d 561 (La.1978).

For the foregoing reasons the judgment appealed from is affirmed.

AFFIRMED.


text:
    Gary BUTLER, Charlie Emmons, Bert Sullivan, Henry Cannon and George Robinson, Trustees of Rankin County School District, Board of Education v. Brenda Carol DOTSON, a minor.
    No. 50912.
    Supreme Court of Mississippi.
    Feb. 21, 1979.
    Nicols, Smith & Henderson, Paul B. Henderson, Pearl, for appellant.
    No brief filed on behalf of appellee.
   Appeal from Chancery Court, Rankin County; Thomas L. Zebert, Chancellor.

Before SMITH, P. J., and SUGG and COFER, JJ.

DISMISSED AS A MOOT CASE.

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


text:
    Albert MOORE v. STATE of Mississippi.
    No. 50946.
    Supreme Court of Mississippi.
    Feb. 21, 1979.
    Wilkins, Ellington & James, Samuel H. Wilkins, Barbara A. Raley, Jackson, for appellant.
    A. F. Summer, Atty. Gen. by Calvin Coolidge Williams, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Hinds County; Russel D. Moore, Judge.

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

REVERSED AND REMANDED.

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


text:
    BURNETT & SONS, INC. v. Aaron L. FORD, Executor of Estate of E. Y. Pickle, d/b/a Ackerman Planing Mill Company.
    No. 50909.
    Supreme Court of Mississippi.
    Feb. 21, 1979.
    Ted L. Smith, Batesville, for appellant.
    Murray L. Williams, Water Valley, for appellee.
   Appeal from Circuit Court, Panola County; Dick R. Thomas, Judge.

Before SMITH, P. J., and SUGG and COFER, JJ.

AFFIRMED IN PART, REVERSED IN PART AND REMANDED.

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


text:
    Swancy BOWIE v. STATE of Mississippi.
    No. 51095.
    Supreme Court of Mississippi.
    Feb. 28, 1979.
    Lee B. Agnew, Jackson, for appellant.
    A. F. Summer, Atty. Gen., by Wayne Snuggs, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Hinds County; Russel D. Moore, Judge and Reuben V. Anderson, Special Judge.

Before PATTERSON, C. J., and BROOM and COFER, JJ.

AFFIRMED.

SMITH and ROBERTSON, P. JJ., and SUGG, WALKER, LEE and BOWLING, JJ., concurring.


text:
    Johnny MYLES v. STATE of Mississippi.
    No. 50992.
    Supreme Court of Mississippi.
    Feb. 28, 1979.
    Merrida P. Coxwell, Jackson, for appellant.
    A. F. Summer, Atty. Gen. by Phillip H. Schwartz, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Hinds County; Russel D. Moore, Judge.

Before SMITH, P. J., and SUGG and COFER, JJ.

AFFIRMED.

PATTERSON, C. J., ROBERTSON, P. J., and WALKER, BROOM, LEE and BOWLING, JJ., concurring.


text:
    Johnny L. BURNHAM v. STATE of Mississippi.
    No. 51017.
    Supreme Court of Mississippi.
    Feb. 28, 1979.
    Harry L. Kelley, Jackson, for appellant.
    A. F. Summer, Atty. Gen. by Phillip H. Schwartz, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Hinds County; William D. Coleman, Judge.

Before SMITH, P. J., and SUGG and COFER, JJ.

REVERSED AND APPELLANT DISCHARGED.

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


text:
    Dwayne CRAIG v. STATE of Mississippi.
    No. 50910.
    Supreme Court of Mississippi.
    Feb. 28, 1979.
    Loyacono & Field, R. Louis Field, Vicksburg, for appellant.
    A. F. Summer, Atty. Gen. by Karen Gil-foy, Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Sharkey County; Ben Guider, Judge.

Before SMITH, P. J., and SUGG and COFER, JJ.

REVERSED AND REMANDED FOR A NEW TRIAL.

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


text:
    MERCHANTS & MARINE BANK OF PASCAGOULA, MISSISSIPPI and C. W. Ford, Trustee v. COMMERCIAL CREDIT CORPORATION.
    No. 50938.
    Supreme Court of Mississippi.
    Feb. 28, 1979.
    Joe A. Moore, Pascagoula, for appellant.
    Palmer, Stewart & Gaines, Owen T. Palmer, Jr., Gulfport, for appellee.
   Appeal from Chancery Court, Jackson County; Rex Gordon, Chancellor.

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

AFFIRMED ON DIRECT APPEAL: AFFIRMED ON CROSS APPEAL AS TO THE AWARD OF TRUSTEE/ATTORNEY FEES: REVERSED AS TO COSTS ON THE CROSS-APPEAL.

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


text:
    Robert RHODES, a/k/a Robert Love v. STATE of Mississippi.
    No. 51267.
    Supreme Court of Mississippi.
    Feb. 28, 1979.
    John C. Webb, Sidney J. Martin, Green-ville, for appellant.
    A. F. Summer, Atty. Gen. by Carolyn B. Mills, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Washington County; Arthur B. Clark, Judge.

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

AFFIRMED.

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


author: PER CURIAM.

text:
    Frank BANKS, Jr., et al. v. Pheletus BANKS, et al.
    No. 50607.
    Supreme Court of Mississippi.
    Feb. 28, 1979.
    Guy & Dowdy, William S. Guy, McComb, for appellants.
    T. F. Badon, Liberty, for appellees.
   PER CURIAM.

On December 2, 1973, Frank Banks, Sr. died intestate seized of one hundred one (101) acres of land in Amite County. He and his wife, Pheletus Banks, had been married more than forty years and on his death he left as his heirs his widow and six children by a former marriage. On February 23, 1974, the widow conveyed her undivided one-seventh (Vrth) interest in the property to Hosea Sanders and Bobbie Lee Turner Sanders, reserving a life estate. After the death of her husband, the widow at all times exercised her homestead rights and had full use and occupation of the entire property.

On May 16, 1977, the widow and her remaindermen filed their bill for partition of land, seeking to have the property partit-ed in kind and prayed that their joint interest be set aside to include the family home situated on the property. The remaining six heirs were named as parties defendant.

The defendants filed a demurrer which was overruled, and after a trial on the merits, the chancellor divided the land into seven parcels. He assigned each heir one parcel, adjusted the equities by requiring complainants to pay owelty and granted the complainants the parcel which included the family home. No error was assigned as to the manner in which the property was divided.

In fact, the only error assigned by the appellants, the children of Banks, is that the chancellor erred in overruling their demurrer in that the partition sought by the appellees “was not authorized or contemplated” by section 11-21-3 Mississippi Code Annotated (1972), which reads:

Partition of land held by joint tenants, tenants in common, or coparceners, having an estate in possession or a right of possession and not in reversion or remainder, whether the joint interest be in the free-hold or in a term of years not less than five, may be made by decree of the chancery court of that county in which the lands or some part thereof, are situated; or, if the lands be held by devise or descent, the division may be ordered by the chancery court of the county in which the will was probated or letters of administration granted, although none of the lands be in that county.
However, any person owning an indefeasible fee simple title to an undivided interest in land may procure a partition of said land and have the interest of such person set apart in fee simple free from the claims of life or other tenants, re-maindermen or reversioners, provided the life or other tenants, and other known living persons having an interest in the lands, are made defendants if they do not join in the proceeding as complainants or petitioners.

The statute provides that the life tenant and remaindermen may “join in the proceeding as complainants or petitioners.” For the first time we are asked to decide whether the statute allows the joinder of a life estate and the remaindermen to create an estate authorized to institute a suit in partition. In short, does such a joinder create an “indefeasible fee simple title to an undivided interest in land?” We conclude that it does for the reasons hereafter stated and affirm the lower court.

Section 91-1 — 23 Mississippi Code Annotated (1972) provides that exempt property shall not be subject to partition or sale for partition as long as it is occupied or used by the widow or widower of a decedent, unless the widow or widower consents to the partition. We held in Medford et al. v. Mathis, 176 Miss. 188, 168 So. 607 (1936) that the estate or right or interest vested by the above statute in the widow is more nearly analogous to a life estate than to any other to which it may be likened. She has the right to occupy and use the homestead during her life, provided she remain a widow, and she has, of course, the right to remain a widow.

In Gresham v. Clark, 231 Miss. 206, 95 So.2d 234 (1957) a widow inherited an undivided one-third interest in the homestead of her deceased husband. She conveyed her undivided one-third (%rd) interest and reserved a life estate. The Court held that the exempt property could not be partited over the objection of the widow and the other heirs were vested with a future estate which took effect in possession at the termination of her preceding estate.

In Bohn v. Bohn, 193 Miss. 122, 5 So.2d 429, appeal dismissed 316 U.S. 646, 62 S.Ct. 1283, 86 L.Ed. 1730 (1942) we held that the right of a widow in a homestead has the attributes and incidents of a life estate, and the other heirs are vested with a future interest which takes effect in possession at the termination of the preceding estate or interest.

Therefore, when Mrs. Banks conveyed her undivided one-seventh (Vith) interest in the fee she thereby retained her homestead in the entire tract (101 acres) plus a life estate in an undivided one-seventh (Vith) interest in the entire property. Her homestead rights would terminate on her remarriage, but her life estate would not terminate until her death. Her grantees and the six children of Frank Banks, Sr. were then vested with a future estate which would take effect in possession at the termination of her preceding estate.

When the widow joined in the bill for partition she thereby consented to a partition of the land in which she held a homestead interest. She could not ask for a partition and, at the same time, retain her homestead interest and did not attempt to do this. She was entitled to a life estate in only the parcel set apart to her and her grantees, and by joining in the partition suit, she waived her homestead rights in the six (6) parcels allotted to the defendants.

When the widow and her remaindermen joined in a bill for partition, they held between them an indefeasible fee simple title to an undivided one-seventh CAth) interest in the property. This satisfied the requirements of section 11-21-3 Mississippi Code Annotated (1972) that a petition for partition be brought by the owner of an “indefeasible interest to an undivided interest in land.” 134 A.L.R. 678.

AFFIRMED.

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


author: WALKER, Justice,

text:
    Lloyd HENDERSON v. STATE of Mississippi.
    No. 51013.
    Supreme Court of Mississippi.
    Feb. 28, 1979.
    Cain, Cain & Ritchey, Bentley E. Conner, Canton, for appellant.
    A. F. Summer, Atty. Gen. by Marvin L. White, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before ROBERTSON, P. J., WALKER and LEE, JJ.
   WALKER, Justice,

for the Court:

A jury in the Circuit Court of Madison County found Henderson guilty of the sale of heroin. He was sentenced to thirty years in the State penitentiary with the last ten years suspended dependent on good behavior. On appeal, Henderson argues four assignments of error:

I.

The first assignment of error that the state failed to furnish the names of confidential informers is without merit. The record shows the defendant knew the names and even requested instructions with the names of the informers included.

II.

The defendant argues that admission of tangible evidence which was the subject of an order to produce but not produced prior to trial is reversible error. Pri- or to trial defendant requested and the court ordered the state to make available all tangible evidence that was to be used in the trial. Two weeks prior to trial, the district attorney told the defendant’s attorney that all the heroin had been consumed in the analysis at the State Crime Lab and that the blue balloon in which it was contained was also at the State Crime Lab. At trial, the balloon was admitted into evidence over the objection of the defendant.

The state, while conceding the balloon was tangible evidence subject to the discovery order, argues that since defendant had been informed of its existence and location, defendant should have gone to the crime lab and obtained it. In other words, the argument is that the state had satisfied its obligation by telling the defendant of the existence and location of tangible evidence, and that the burden then shifted to the defendant to actually obtain it.

We have carefully considered this argument and must reject it. We now hold that it is the duty of the state, through the prosecuting attorney, to obtain tangible evidence which the state intends to introduce at trial from whatever state agency may have the evidence and to make that evidence available for inspection by defense counsel in the location where venue for trial is proper, or a mutually agreed upon location. Such a rule is necessary since the state is better equipped to retrieve such evidence and/or cooperation from other state agencies than is defense counsel.

We, therefore, hold that failure to produce the balloon before the trial was error. The question remains, however, as to whether its introduction into evidence, under the circumstances, was reversible error. Armstrong v. State, 214 So.2d 589 (Miss.1968) held that a defendant should be able to examine tangible evidence, and here the state was under court order to produce. However, we have held that failure to produce is not per se grounds for reversal. Instead, this Court has inquired into whether or not admission of the evidence was unduly harmful or prejudicial to the defendant. Hannah v. State, 336 So.2d 1317 (Miss.1976); Grady v. State, 274 So.2d 141 (Miss.1973). See also Pryor v. State, 349 So.2d 1063 (Miss.1977) [Failure to produce witnesses’ names].

In Pryor, supra, we held, among other things, the Court would determine whether defendant moved for a continuance when the evidence was sought to be introduced and whether or not the introduction was prejudicial in the light of all the circumstances. We note that defendant did not move for a continuance so as to have time to inspect the balloon, and in our opinion a continuance or short recess of trial would have cured any prejudice which might have occurred. Moreover, the appellant did not demonstrate on motion for a new trial, nor has he demonstrated on appeal, how he was prejudiced by not having access to the balloon.

We are, therefore, of the opinion that the state’s failure to produce the balloon for inspection by defendant in this case was harmless error.

III.

The defendant argues that the court erred in not granting his instruction that .the state’s failure to call the two confidential informers as witnesses created a presumption that their testimony would have been adverse to the state.

We have held under narrowly defined circumstances that if a party fails to call an available witness, who is presumed to be friendly, and who knows exculpatory facts, that this raises a presumption that their testimony would be adverse to the party failing to call them. Bunckley v. Jones, 79 Miss. 1, 29 So. 1000 (1901); Fuller v. Sloan, 230 So.2d 574 (Miss.1970). However, those cases in which the presumption was applied were civil rather than criminal cases. Neither appellant nor appellee cites us to a criminal case in which this Court approved an instruction on such a presumption. It is true that some states do allow an instruction of this kind in criminal cases. 22A C.J.S. Criminal Law § 594, p. 370 (1961).

In a recent well-considered opinion, the Supreme Court of South Carolina, confronted with a situation similar to the one now before us, pointed out that while it may be proper for an attorney in closing argument to point out a party’s failure to call a witness, “such a charge has no proper place in the judge’s statement of the law.” State v. Hammond, 242 S.E.2d 411, 416 (S.C.1978). See also United States v. Peterson, 424 F.2d 1357, 1363 (7th Cir. 1970). We agree.

While we have allowed counsel in criminal cases to comment during closing argument on a party’s failure to call a material witness, under certain circumstances, and thereby allowed the jury to infer that the witness’ testimony would have been adverse to the other party, we have not raised such inference to the level of a presumption subject to an instruction by the trial judge. To do so would place too much emphasis on such permissible inference and tend to cause juries to decide cases on the lack of testimony rather than direct testimony. We therefore hold that an instruction on either party’s failure to call a witness in criminal cases should not be given.

We have considered the remaining assignment of error and consider it to be without merit.

For the foregoing reasons, the conviction and sentence are affirmed.

AFFIRMED.

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

      . There will naturally be cases involving tangible evidence of such nature that the court may, in its discretion upon proper motion, provide for its pretrial inspection at some location other than the county where trial is to be held.

      . See Brown v. State, 200 Miss. 881, 27 So.2d 838 (1946) and Phillips v. State, 183 So.2d 908 (Miss.1966).


author: TORBERT, Chief Justice.

text:
    Thomas P. MELLOS and Anthi C. Mellos v. Joel SILVERMAN, d/b/a Silverman Realty Company, and Associates Realty, Inc., a Corporation.
    77-444.
    Supreme Court of Alabama.
    Jan. 26, 1979.
    Rehearing Denied March 2, 1979.

      George B. Azar, Montgomery, for appellants.
    Philip H. Butler, Montgomery, for appel-lees.
   TORBERT, Chief Justice.

Appellants, Thomas and Anthi Mellos, appeal the trial court’s order awarding a broker’s commission to appellees, Joel Silver-man and Associates Realty, Inc., pursuant to an exclusive listing contract for the sale of certain realty and improvements owned by appellants.

On November 15, 1976, appellants entered into an agreement with appellee Associates Realty, Inc. (Associates) whereby Associates was given the exclusive right to sell the Embers Restaurant and Bamboo Lounge owned by appellants. The period covered by the agreement extended to March 1,1977. The agreement gave Associates an exclusive right to sell the property and provided for a ten percent commission in the event the property was sold at the price authorized in the listing agreement or at any other price agreed to by Mellos. The agreement authorized a sales price of $450,-000 with $100,000 down and the balance at 9% simple interest over a 10-year term. The agreement also contained an extension clause which provided:

In the event of said premises being sold or leased by me or any other person during the term of this agency or a sale or lease is later consummated with prospect introduced or interested in said property during such term by The Associates Realty, Inc., the commission above specified shall be considered earned.

During the term of the listing agreement, Nikola Nikolic became interested in purchasing the property. On Friday night, February 4, 1977, he went to the Embers and inquired of Thomas Mellos if the property was for sale and expressed an interest in purchasing the property. Mellos replied that he was too busy to discuss the matter at that time and to come back the next day. The following day Nikolic went instead to see Joel Silverman with whom the Embers had been listed prior to the agreement with Associates. Nikolic testified he had previously learned from Silverman that the property was for sale and consulted Silverman to get his opinion of the property and its value.

Silverman assisted Nikolic in preparing a written offer for the property, and since his listing had expired, obtained permission from Associates to present the offer to appellants. Silverman presented the offer to Mellos in the presence of his attorney at the Embers on February 9, 1977. The terms of the offer included a sales price of $300,000 with $100,000 down and the balance over a 20-year term at 7%. Appellants rejected the offer and made a counter-offer of $350,-000 with $95,000 down and the balance over 20 years at 7%. The counter-offer was rejected. Nikolic then informed Silverman that he was no longer interested in the property. Both the offer and counter-offer provided that Silverman and Associates would split the commission.

The testimony is conflicting as to further contact between Nikolic and Silverman. Silverman asserts that he continued to contact Nikolic until the end of February, a period of about three weeks, hoping to convince him to talk to Mellos again. Silver-man testified that he finally concluded that Nikolic was simply not a prospect and did not contact him further. Nikolic, however, testified that he only talked with Silverman once or twice and within a couple of days after his rejection of Mellos’ counter-offer. Nikolic stated that he told Silverman he was no longer interested in the property and had made plans for a trip to Europe.

On March 1, 1977, the listing agreement with Associates expired, and Mellos listed the Embers with the Jim Broxton Agency. Nikolic and Mellos talked to each other again on March 22. At that time Nikolic’s wife offered $275,000 for the Embers with $50,000 down and the balance over a 15-year term at Th%. The offer was accepted. Mellos testified that he accepted less money than that originally offered by Nikolic because he was ill and tired and needed to immediately sell the property for health and financial reasons. Nikolic testified that Mellos called him explaining that he needed to sell the property and Nikolic’s wife then got on the phone and offered $275,000 stating that he (Mellos) would never get $300,-000.

Mellos called Jim Broxton advising him of the sale and inquiring whether he owed him any commission. Broxton replied that he did not. No commission was paid to either Silverman or Associates.

Silverman and Associates filed suit against appellants and Nikolic for the commission provided in the listing agreement and for punitive damages for fraud. The trial court, hearing the evidence ore tenus, granted a directed verdict in Nikolic’s favor at the close of plaintiff’s evidence and ruled that Silverman and Associates were entitled to the commission by virtue of the extension clause. The court further found that appellants were not guilty of any fraud.

Under an exclusive right to sell agreement, the parties contract that the broker is entitled to a commission if within the time specified in the agreement he produces a person ready, willing, and able to purchase the property on terms authorized or agreeable to the owner. Extension clauses provide that the broker is entitled to a commission notwithstanding the expiration of the term of the listing agreement if the property is sold to one with whom the broker, prior to such expiration, negotiated or had some other form of dealing described in the agreement. Shorten v. Mueller, 206 Okl. 62, 241 P.2d 187 (1952). The purpose of such a clause is to protect the broker by preventing the owner from postponing acceptance until the listing agreement has expired and thereby circumvent the broker’s right to compensation for locating a purchaser. Harkey v. Gahagan, 338 So.2d 133 (La.App.1976). The validity and enforceability of extension clauses have been universally upheld. See, e. g., Beck v. Neal, 228 Ark. 186, 306 S.W.2d 875 (1957); Whiting v. Johnson, 64 Wash.2d 135, 390 P.2d 985 (1964).

The owner and broker are free to frame their agreement as they see fit and may make the broker’s commission dependent upon whatever conditions they agree upon so long as such conditions are not unlawful or contrary to public policy. Fischer v. Patterson, 97 N.H. 318, 86 A.2d 851 (1952). Under the language typically employed in extension clauses, it is not necessary that the actions of the broker be the “procuring” cause of the sale although the broker must show some minimal causal connection between his efforts and the eventual sale. See, e. g., E. A. Strout Co. v. Hubbard, 104 Me. 366, 71 A. 1020 (1908); Kaye v. Coughlin, 443 S.W.2d 612 (Tex.Civ.App.1969); Lloyd Hammerstad, Inc. v. Saunders, 6 Wash.App. 633, 495 P.2d 349 (Wash.App.1972). The courts have not formulated any precise rule or standard by which to determine the sufficiency of the broker’s efforts. This result is largely attributable to the wide range of terms and expressions used in extension clauses to describe the obligation of the broker. Therefore, the nature and extent of the broker’s efforts contemplated by the agreement must be determined in each case by a construction of the particular language involved. Englemann v. Auderer, 10 La.App. 136, 121 So. 194 (1929).

The expression used most frequently in extension clauses is that the broker must have “negotiated” with the buyer which has been construed as requiring that the broker interest the prospect to the extent that he becomes a likely purchaser, or, coming to terms or arranging the terms and conditions of a sale. See Clarke v. Blackfoot Water Works, 39 Idaho 304, 228 P. 326 (1942). Other expressions include to “offer,” or “quote,” or “submit” the property to the purchaser. These expressions have been construed to require less activity by the broker than the term “negotiate.” Bullis & Thomas v. Calvert, 162 La. 378, 110 So. 621 (1926). Compare Werner v. Hendricks, 121 Pa.Super. 46, 182 A. 748 (1936) with Coppage v. Woodward, 105 So.2d 306 (La.App.1958) and Whiting v. Johnson, 64 Wash.2d 135, 390 P.2d 985 (1964).

In the instant case, the extension clause provided for a sale consummated with a prospect “introduced or interested” in said property. This expression seems to require even less effort still by the broker. See Wachtel v. Harkless, 112 Ind.App. 279, 44 N.E.2d 510 (1942). In Wachtel, the court construed “introduced” as equivalent to “found” or “procured” and stated that the sale must be traced to the introduction of the purchaser to the owner. A face to face introduction is not contemplated, rather it is sufficient if the parties are brought into communication with each other. In that case, the broker’s agent took the two prospective purchasers to the property, a tavern, and introduced them to the bartender. The owner was not present. They stated to the agent that they were interested in a place like this. Subsequently, without any further communication with the broker or the agent, they purchased the property. The court held the broker’s efforts were sufficient to entitle him to the commission for there was no evidence that the prospect would have become a purchaser without the information from the broker.

The court in Carter v. Hayes, 337 So.2d 295 (La.App.1976), upheld the trial court’s award of a commission to a broker under an extension clause requiring the broker to “interest” the ultimate purchaser in the property. At a gathering of farmers, the eventual purchaser inquired of the broker if he had any farms for sale. The broker replied that he did, but did not specify any particular farm. The purchaser unsuccessfully attempted to contact the broker during the next few days, but finally arranged a meeting after the listing had expired where he discussed in detail two farms, one of which he subsequently purchased. The broker contacted the owner to inform him that he had a purchaser, and since the listing had expired, to determine if the owner still wanted to sell the land. The owner replied that he did. Subsequently, the broker called the owner and sent the purchaser to see him. The parties then concluded a sale in the absence of the broker. The owner refused to pay the commission so the broker filed suit. The trial court held the broker was not entitled to a commission since, although the purchaser knew the broker had some property for sale, the purchaser did not know the owner, price, or location of the property prior to expiration of the listing agreement.

On appeal, the trial court’s ruling was reversed. The court stated the contract only required the purchaser to be interested in the property during the term of the agency. The court noted that the purchaser would not have learned of the property but for the activities of the broker, the owner would not have known of the purchaser had the broker not called, and the sale was effected within a period of one month during which time there were no other prospective purchasers. The court concluded from these facts that the purchaser became interested in the property as a result of the efforts or advertising of the broker during the active term of the listing.

In the instant case, the activities of Sil-verman have gone beyond merely “introducing or interesting” the prospect in the property. Although Nikolic and Mellos were acquainted, Nikolic testified that he first learned the Embers was for sale from Silverman. Silverman met with Nikolic and discussed the value of the property, equipment, and going business and, in addition, prepared a written offer for Nikolic. Silverman also presented the offer to Mel-los, and after the rejection of the counteroffer, attempted to get the parties back together although the extent of his efforts is disputed.

To constitute performance the broker’s activities must be at least minimally connected with the sale. Here there was such a connection since Silverman sparked Nikolic’s original interest in the property which, though temporarily dormant, was revived at the prospect of a more favorable price.

Appellants contend that a broker must uninterruptedly continue to make efforts to bring about the sale in order to earn a commission under an extension clause. The cases relied on by appellant, however, are not persuasive. In Dancy v. Baker, 206 Ala. 236, 89 So. 590 (1921), the broker was to receive a commission if he found a purchaser ready, willing, and able to buy the property for $150,000. Negotiations between the parties terminated unsuccessfully. Four months later, the owner negotiated with the purchaser himself and sold the property on different terms. Unbeknown to the owner, the broker had continued his efforts to effect a sale. The opinion does not disclose if the agreement was an exclusive listing or the time of duration of the agreement. The court denied the broker his commission noting that since the broker had not fulfilled his obligation of procuring a purchaser ready, willing, and able to buy for $150,000, the owner was free to negotiate with the purchaser himself. The court reasoned to allow the broker a commission upon a sale on different terms than those authorized, in the absence of notice to the owner of the broker’s renewed activities, would not alert the owner as to the broker’s expectation of a commission and would prejudice the owner in negotiating with the purchaser. Therefore, the only significance of a subsequent sale upon different terms was the notice it afforded the owner respecting his right to conduct independent negotiations without incurring the responsibility for a commission.

In the instant case, appellees had the exclusive right to negotiate the sale. If the property was sold during the listing period, Associates would be entitled to the commission regardless of who effected the sale whether it be another agent or Mellos himself. Furthermore, the agreement did not limit the commission to the sale of the property at one definite price as in Dancy, but provided for a commission if the property was sold on any terms agreeable to Mel-los. The court in Dancy expressly recognized these distinct situations and the requirement of notice of the broker’s activities in respect thereto:

We do not overlook the rule recognized in Handley v. Shaffer, [177 Ala. 636, 59 So. 286] supra, that where a broker is employed merely to find a purchaser, with whom his principal is to negotiate a sale upon whatever, terms may be agreed upon as satisfactory, the broker’s right to a commission does not depend upon his principal’s knowledge of the fact that a purchaser to whom he has thus sold was sent to him by the broker. That rule of liability seems to be well settled. But where the broker is authorized to find and produce a purchaser only at a specified price and on specified terms, his commission being expressly made dependent upon a sale at that price (as is here the case), that rule of liability cannot be justly applied, unless the purchaser who presents himself to the principal is able and ready and offers to buy at the price and on the terms specified. Such an offer would be sufficient notice of the source of the purchaser, if notice were required; and, in any event, the absence of notice or knowledge could not prejudice the principal.

Id. at 239, 89 So. at 593.

Appellants also rely upon First National Bank of Birmingham v. Chichester, 352 So.2d 1371 (Ala.Civ.App.1977), where the broker attempted to recover a commission for the leasing of the property by the owner after he revoked the broker’s authority to sell. The court, citing Dancy, noted that whether revocation ended the obligation of the owner depended upon the owner’s good faith and whether the broker’s efforts were the procuring cause of the sale. Thus, since an entirely different contract was eventually executed by the owners, to constitute the procuring cause, the broker had to show that the owner continued uninterruptedly the negotiations initiated by the broker. Such a showing was not made and the broker was denied his commission. The instant case differs in that by virtue of the extension clause Silverman’s efforts were not required to be the procuring cause of the sale.

Nikolic was “introduced or interested” in the property and that was all that was required to be done by the listing agreement to recover a commission. The parties are free to enter into whatever agreement they wish, and appellants cannot defeat the broker’s recovery by attempting to impose a duty more stringent than that provided for in the agreement.

Appellants further contend that Associates did not introduce or interest Ni-kolic in the property since Silverman is not connected with or employed by Associates. However, Silverman obtained Associates’ permission to present the offer and was acting on its behalf. A broker may employ a subagent to aid him in procuring a purchaser for property listed with him. Rawls v. Carlisle Baston, 18 Ala.App. 644, 93 So. 818 (1921); Alford v. Creagh, 7 Ala.App. 358, 62 So. 254 (1913). Therefore, introduction by Silverman was equivalent to introduction by Associates.

The extension clause in the instant case did not specify a time period in which it was to operate. In such a case, a reasonable time is presumed. Moore v. Holman Real Estate Co., 129 Ark. 465, 196 S.W. 479 (1917); Messick v. Powell, 314 Ky. 805, 236 S.W.2d 897 (1951). The trial court found the sale was consummated within a reasonable time, and we agree. Therefore, since the extension clause was valid and appellees fulfilled their obligation pursuant to the listing agreement, they are entitled to the commission.

AFFIRMED.

MADDOX, JONES, SHORES and BEAT-TY, JJ., concur.

      . Procuring cause refers to a cause originating with a series of events which without break in their continuity result in procuring a purchaser ready, willing and able to buy on the owner’s terms. Absent contractual provisions otherwise, the broker’s activities must be the procuring cause of the sale. 12 Am.Jur.2d Brokers §§ 189, 190.


author: BEATTY, Justice.

text:
    Walter F. MASON, Jr. v. CONNECTICUT GENERAL LIFE INSURANCE COMPANY et al.
    77-669.
    Supreme Court of Alabama.
    Jan. 26, 1979.
    Rehearing Denied March 2, 1979.

      Rodney B. Slusher, Florence, for appellant.
    Robert E. Jones, III, Florence, for appel-lees.
   BEATTY, Justice.

This is an appeal by plaintiff, Walter F. Mason, Jr., from the entry of summary judgment against him in favor of defendant Connecticut General Life Insurance Company. We affirm.

The facts before the trial court were undisputed. In 1971 the plaintiff, Walter Mason, suffered two severe heart attacks. At that time Mason was employed by the Feebler Company as a route or territory salesman. The job was a physically and emotionally demanding one requiring the plaintiff to drive extensive distances to procure orders from stores, load and unload his truck, stock shelves, rotate merchandise and build displays for the Feebler Company. As a result of his heart attacks the plaintiff was unable to resume the full and energetic activities required by the Feebler job.

The Feebler Company had procured group disability insurance coverage for its employees from Connecticut General Life Insurance Company. Section 11 of the policy provided in part that:

If sickness or accidental bodily injury, directly and independently of all other causes, disables an Employee so that he is completely prevented from performing the duties of his occupation or employment and if the disability continues after the Benefit Waiting Period shown in the Schedule of Benefits, the Insurance Company will pay Monthly Income in an amount determined from the Schedule of Benefits. Such Monthly Income will be payable for the period during which the disability continues after the Benefit Waiting Period, but for no longer than 24 months. If an Employee, while so disabled, engages in any work for wage or profit (including any Rehabilitative Work), the Monthly Income otherwise payable with respect to any month will be reduced by 80% of the amount of wage or profit to which the Employee is entitled for such work during that month.

Pursuant to these provisions “occupational” disability benefits were paid to Mason from October 11, 1971 until April 30, 1972. On June 12, 1972 Mason was terminated from active service with the Feebler Company. However, in May of that year Mason had become employed by a friend, John Feck, as a lake property salesman. (Mason had in earlier years been similarly employed by Feck in Fentucky). Mason worked in this capacity about five months a year from May to September although he was paid a regular monthly salary all year. The job consisted of waiting at an office, meeting potential customers and escorting them to various lots. It was understood that Mason could work at his own leisure and lie down or take off whenever he desired. This employment ended in August, 1976 when apparently Mason’s physical limitations did not allow him to keep up with the increased demands of the job. The next Spring, March of 1977, Mason became self-employed as a partner in an aluminum siding business and was still so self-employed when this lawsuit began. In this endeavor Mason worked Monday through Friday. He handled most of the sales work for the partnership in terms of dealing with potential customers, and also handled most of the office and administrative work. Mason was limited in the amount of physical work which he could undertake however, and while he helped his partner make measurements of houses, he left any climbing to his partner.

On October 20, 1976 Mason filed a complaint against Connecticut General alleging in essence that he had been totally and permanently disabled from July 12, 1971 and was therefore entitled to additional occupational disability benefits; and also nonoccupational disability benefits. He also alleged that under the policy he was entitled to hospitalization and medical expenses incurred by him through 1975. On October 27, 1977 Connecticut General moved for summary judgment presenting three issues:

(a) Whether or not the defendant was entitled to deduct those earnings made by Mason for the period of time when the occupational disability benefits were payable;

(b) Whether or not the plaintiff was entitled to nonoccupational disability coverage; and

(c) Whether or not medical expenses incurred in 1975 by Mason were covered by the medical expenses provision of the policy-

Thereafter affidavits, depositions and other records and exhibits were submitted which the parties agreed contained all of the relevant evidence. On May 8, 1978 the trial court granted summary judgment in favor of Mason on issue (a), in effect granting him occupational disability benefits for the full twenty-four months less outside earnings, but found for the defendant insurance company on issues (b) and (c). Mason’s subsequent motion to vacate the entry of summary judgment was overruled and he brought this appeal.

Summary judgment may be granted only when the moving party has satisfied his burden of showing that there is no genuine issue as to any material fact, and he is entitled to judgment as a matter of law. Board of Water & Sewer Commissioners of City of Mobile v. Alabama Power Company, 363 So.2d 304 (Ala.1978); Fleming v. Alabama Farm Bureau Mutual Casualty Insurance Company, 293 Ala. 719, 310 So.2d 200 (1975); Ray v. Midfield Park, Inc., 293 Ala. 609, 308 So.2d 686 (1975). In the present case the parties agree that the facts are undisputed and that our review is limited to deciding whether Connecticut General showed that the entry of summary judgment was proper as a matter of law. We hold that it did.

Because neither Mason nor Connecticut General questions the entry of judgment on the occupational disability issue, we review only whether, as matters of law, Mason was not entitled to non-occupational disability and/or medical benefits.

The pertinent provisions of the Connecticut General insurance policy dealing with “non-occupational” disability are also found in Section 11. That section provides that Connecticut General will pay the employee monthly income subject to certain terms, conditions and limitations upon receipt of due proof that the employee has become totally disabled as described in the policy. Qualification for the non-occupational benefits is first conditioned upon monthly income having been received for twenty-four months under the occupational disability provisions of Section 11. Mason’s right to those benefits is not questioned on this appeal and hence from the judgment entered it appears the first condition has been met. However, the fact that plaintiff was disabled under the occupational disability provisions is not dispositive of the issue of total disability under the non-occupation-a 1 disability clause. That clause provides that:

If an Employee is so disabled that he is completely prevented from engaging in any occupation or employment for which he is qualified, or may reasonably become qualified, based on his training, education or experience, and if Monthly Income has been payable for 24 months [under the occupational disability clause], the Insurance Company will continue Monthly Income payments during the period he remains so disabled, (emphasis added)

In Mutual Life Insurance Co. of New York v. Danley, 242 Ala. 80, 5 So.2d 743 (1941), this Court extensively surveyed the Alabama law on non-occupational, or “total disability” clauses, and there set forth the rule to be applied when a plaintiff claims benefits under them:

[TJotal disability within the meaning of the policies here involved means inability to substantially perform the duties of any substantially gainful occupation for which he is qualified by training, education or experience. . . . (emphasis added)

This is still the rule of law in Alabama. Wilkey v. Aetna Life Insurance Co., 269 Ala. 308, 112 So.2d 458 (1959); Pan Coastal Life Insurance Co. v. Malone, 40 Ala.App. 325, 114 So.2d 277, cert. den. 269 Ala. 515, 114 So.2d 283 (1959); World Insurance Co. v. Hall, 384 F.2d 138 (5th Cir. 1967).

The evidence is undisputed that Walter Mason was a “salesman.” That he was qualified to do this type of work based upon his training, education and experience is abundantly clear. In State v. Newbern, 46 Ala.App. 210, 239 So.2d 780 (1970), Presiding Judge Thagard had the occasion to define a “salesman,” quoting J. A. Fay and Egan Co. v. Brown Machinery Co., 14 S.W.2d 491 (Mo.App.1929): “In Webster’s New International Dictionary . . . [a] ‘salesman,’ ... is defined as ‘one whose occupation is to sell goods or merchandise.’ ” While this is a short definition, it is a very broad one, limiting the term neither to the place in which one sells, nor to the physical characteristics necessary to be possessed by one who sells. Certainly the evidence shows that the plaintiff was engaged as a salesman for the Keebler Company when the heart attacks occurred and that subsequently he was engaged as a salesman for Mr. Keck. Neither is it disputed that Mason became a partner in the aluminum siding business and was thus in the broad sense of the term, a “salesman.” That in all of these forms of employment a different product was sold is of no importance. It is important only that the plaintiff was engaged in substantially performing the duties of a substantially gainful occupation for which he is qualified. Nor is it determinative that the plaintiff’s duties in his employment subsequent to the heart attacks were less strenuous. A person could be a successful salesman with little physical mobility or ability if he could still substantially perform those duties which are required of a salesman: to sell, i. e., to contract prospective customers, to persuade them to look favorably toward your goods if they are not already so favorably disposed, and to transfer those goods for a consideration. In this case Walter Mason retained those abilities and apparently was successful. In 1972 when he became a real estate salesman his income was $14,700. Following that year his income level was variously: $9,700 for 1973; $9,100 for 1974; $13,-000 for 1975; and $13,700 for 1976. We hold that these facts establish as a matter of law that Mason was not totally disabled under the Danley test. This holding is also dispositive of the medical coverage issue. This follows because that portion of Section 11 dealing with major medical benefits requires inter alia that the expenses “result . from an Injury or Sickness which causes the Employee . . . to be totally disabled continuously from the day his insurance terminates until the day the Covered Expenses are incurred . . . ” (emphasis added). Therefore we must affirm the trial court’s entry of summary judgment holding that the plaintiff, Walter Mason, was not entitled to non-occupational disability benefits or medical benefits under the policy of insurance issued by the defendant, Connecticut General Life Insurance Company.

AFFIRMED.

BLOOD WORTH, MADDOX, JONES and SHORES, JJ., concur.


author: ALMON, Justice.

text:
    DARKS DAIRY, INC. et al. v. ALABAMA DAIRY COMMISSION et al.
    77-464.
    Supreme Court of Alabama.
    Feb. 23, 1979.

      Curtis H. Springer, Montgomery, for appellants.
    Robert M. Alton, Jr., Montgomery, for appellees.
   ALMON, Justice.

This is an appeal from a declaratory judgment rendered in the Circuit Court of Montgomery County. Darks Dairy, Inc., and other milk distributors brought this action seeking a declaration that they should not be required to pay the license fees required by tit. 22, § 215, Code of Alabama 1940 (Recomp. 1958).

In January, 1977, the Alabama Dairy Commission terminated both the minimum retail price controls and the minimum and maximum wholesale price controls. Certain milk distributors took the position that the Alabama Dairy Commission, by abolishing the wholesale price control, had also abolished the license fee schedule for milk distributors. Accordingly, they refused to pay their monthly license fees, or paid their license fees under protest. The distributors also filed this action for a declaratory judgment seeking an order: 1) declaring Ala. Code, tit. 22, § 215 (Recomp. 1958) (Supp. 1973) void, ineffective and without force of law; 2) compelling the escrow and eventual refund of all license fees paid to the Commission pursuant to § 215, subsequent to January 27, 1977; 3) and a permanent injunction restraining the enforcement of § 215 against the distributors.

In April of 1977, while the declaratory judgment action was pending, the Alabama Dairy Commission rejected the distributors’ position and issued an order requiring that the distributors pay all delinquent license fees within ten days and that a $50.00 per day fine be imposed on any distributor who failed to pay its license fee.

After hearing evidence, the trial court entered the following judgment:

1. That the Plaintiffs are required by Section 215, Title 22, Code of Alabama, 1940, (now § 2-13-53(c)(2), Code 1975), to pay and the Alabama Dairy Commission is authorized to collect a license fee of two cents for each 100 pounds of milk and controlled milk products processed and sold for human consumption within those areas controlled by the Commission.
2. That the phrase in Section 215, Title 22, Code of Alabama, 1940, (now § 2-13-53(c)(2), Code 1975), to wit: ‘in those areas controlled by the Commission’ does not refer to or have any connection with the power of the Alabama Dairy Commission to establish minimum resale milk prices in the State of Alabama.

The applicable Code section provides that

“[a] distributor shall pay a license fee of two cents ($.02) for each one hundred pounds of milk and controlled milk products processed and sold for human consumption in. those areas controlled by the commission except when such payment is ordered discontinued as hereinafter provided. A distributor may reduce the number of pounds of milk on which he would otherwise pay a license fee as provided above, by the number of pounds of milk on which a license fee has been paid by a bobtailer as provided herein. It is the intent of this provision to assure that in no event shall more than two cents ($.02) per hundred pounds of milk be ultimately collected as a license fee at the distribution level.” (Emphasis added.)

The distributors contend that the emphasized language above is clear and unambiguous; that “controlled” and “in those areas controlled by the commission” refer solely to the products upon which the Alabama Dairy Commission controls the resale price. Alternatively, the distributors contend that if the statute authorizing the collection of license fees be found ambiguous, then the construction placed upon the statute by the body administering the statute is presumed correct. The distributors therefore assert that since 1961, the Alabama Dairy Commission, (prior to 1971, the Alabama Milk Control Board), has construed the license fee as a levy only upon those milk products whose prices were set by the Commission, and that this interpretation should be regarded as binding.

The regulatory scheme enacted by the Legislature for the supervision and regulation of milk is very comprehensive. In addition to controlling prices, the Alabama Dairy Commission is directed to supervise and regulate the fluid milk industry. Ala. Code of 1940, tit. 22, § 205 (Recomp. 1958). These supervisory and regulatory powers include the power to: inter alia, designate marketing areas, Ala. Code of 1940, tit. 22, § 209 (Recomp. 1958); promulgate and enforce rules, Ala. Code of 1940, tit. 22, § 211 (Recomp. 1958); enter, inspect, and investigate, Ala. Code of 1940, tit. 22, § 212 (Re-comp. 1958); license all persons or entities dealing with fluid milk products, Ala. Code of 1940, tit. 22, § 213 (Recomp. 1958); and require certain periodic reports, Ala. Code of 1940, tit. 22, § 216 (Recomp. 1958). Section 210 of Title 22 of the Alabama Code of 1940 provides that:

“[t]he diary commission is hereby vested with the powers, and it shall be its duty to supervise and regulate the fluid milk industry of the state of Alabama, including the production, production-distribution, transportation, manufacturing, storage, distribution, delivery, processing, and sale of milk in the state of Alabama

This broad grant of power to regulate is not consistent with the distributors’ position that “controlled” and “in those areas controlled by the Commission” refer only to the Commission’s control of wholesale milk prices.

The paragraph immediately following the previously quoted portion of tit. 22, § 215, sets out the license fee scheme for producers; and it provides in pertinent part:

“A producer shall pay a license fee of two cents ($.02) for each one hundred pounds of milk produced for sale in this state where the prices governing such sale are established by the commission .” (Emphasis added.)

Thus, it is clear that the legislature intended that producers were to pay a license fee only where the commission established the prices governing the sale. It is significant that the legislature did not express a similar intent when it addressed the matter of distributors’ license fees.

The fundamental rule of statutory construction is that this Court is to ascertain and effectuate the legislative intent as expressed in the statute. League of Women Voters v. Renfro, 292 Ala. 128, 290 So.2d 167 (1974). In this ascertainment, we must look to the entire Act instead of isolated phrases or clauses; Opinion of the Justices, 264 Ala. 176, 85 So.2d 391 (1956), and words are given their plain and usual meaning. Adams v. Mathis, 350 So.2d 381 (Ala.1977). Moreover, just as statutes dealing with the same subject are in pari mate-ria and should be construed together, League of Women Voters, supra, parts of the same statute are in pari materia and each part is entitled to equal weight.

We cannot say that the phrases “controlled milk products” and “in those areas controlled by the commission” evince the legislative intent to tie the distributors’ license fee levy to the commission’s price control power. The legislature clearly expressed the intent to correlate producers’ license fees to price controls and absent an equally clear expression with regard to distributors, we will not strain the construction of the statute to reach the result urged by the appellants.

The appellants earnestly urge us to recognize the significance of the Dairy Commission’s interpretation and administration of this statute prior to the abolition of wholesale price controls. While the Commission’s interpretation is probative and entitled to some consideration, such administrative construction and interpretation has never been dispositive. Boswell v. Abex Corporation, 294 Ala. 334, 317 So.2d 317 (1975).

“The correct rule is that an administrative interpretation of the governmental department for a number of years is entitled to favorable consideration by the courts; but this rule of construction is to be laid aside where it seems reasonably certain that the administrator’s interpretation has been erroneous and that a different construction is required by the language of the statute.” (Citations omitted.) 294 Ala. at 336, 317 So.2d at 318.

Moreover, we note that subsequent to the abolition of the wholesale price controls in January, 1977, the Dairy Commission, in its meeting on April 7, 1977, passed a motion which stated in effect, that the distributors who had not paid their license fees were delinquent. Thus, the latest administrative interpretation supports this Court’s holding rather than the position of the appellants.

The order of the circuit court declaring the rights and duties of the respective parties is correct and is due to be affirmed.

AFFIRMED.

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

      . The plaintiff-distributors are the appellants in this case. They include: Delview Meadow Gold, Division of Beatrice Foods Company; Darks Dairy, Incl; Baker & Sons Dairy; Barber Pure Milk Company, Birmingham, Inc.; Barber Pure Milk Company, Mobile, Inc.; Barber Pure Milk Company, Montgomery, Inc.; Cloverleaf Dairies; Dairy Fresh Corporation; Dairyland Farms, Division of Beatrice Foods Company; Farmbest, Inc., Montgomery; Meadow Gold Dairies of Alabama, Division of Beatrice Foods Company; Turner Sales Company, Inc.; White Dairy Company, Inc.; Superbrand Dairy and Woodhaven Dairy, Inc.

      . We refer to the 1940 Code of Alabama citation since this case was tried prior to the effective date of the Code of Alabama, 1975. This particular provision has been recodified at § 2-13-53(c), 1975 Code of Alabama, and the entire regulatory scheme is set out at § 2-13-1 et seq. 1975 Code of Alabama.