author: McCORD, Chief Judge.

text:
    FLORIDA NATIONAL BANK AT LAKELAND, a National Banking Corporation, Appellant, v. STATE of Florida ex rel. the DEPARTMENT OF INSURANCE of the State of Florida, Appellee.
    No. EE-159.
    District of Court of Appeal of Florida, First District.
    Sept. 13, 1977.

      Anthony J. McNicholas, III, of Holland & Knight, Tallahassee, for appellant.
    Robert E. Gibson and Norman L. Miley, Jr., Tallahassee, for appellee.
   McCORD, Chief Judge.

This is an appeal from an order of the trial court entered in a receivership proceeding brought by appellee against Financial Fire and Casualty Company under Chapter 631, Florida Statutes. The trial court in the order from which the appeal has been taken (a final order as to appellant) ruled that appellant did not have the right to the balance of proceeds resulting from the sale of collateral. We agree and affirm.

In 1972, appellant entered into a construction loan agreement consisting of a note mortgage loan agreement and security agreement with Imperial Crown Arms, Inc., in connection with a construction project of Imperial. In conjunction with that transaction, Financial Fire and Casualty Company issued six performance bonds obligating Financial Fire to fully indemnify Florida National for all costs and damages which it might suffer should the general contractor on the construction project fail to perform. The general contractor subsequently defaulted and Financial Fire, pursuant to its performance bonds, undertook to complete the project. At this point, Financial Fire requested a loan from appellant to finance further construction. Financial Fire proposed to pledge certain bonds and securities as security for payment of notes which it proposed to give appellant in the total amount of $459,000. The bonds and securities were delivered to appellant by Financial Fire on July 5, 1974. Thereafter, on July 12, 1974, Financial Fire forwarded to its attorney the first of four single payment collateral notes dated July 12, 1974, in the amount of $200,000. On July 19, 1974, this collateral note was delivered to appellant. On July 22, 1974, appellant advanced the first monies against that note.

On January 16, 1975, pursuant to an application of appellee (the Department of Insurance of the State of Florida) the trial court entered an order to show cause and temporary injunction against Financial Fire and on January 21, 1975, issued an order appointing a receiver for Financial Fire. On February 21, 1975, an Order of Liquidation was entered. Construction of the project was still incomplete and subsequent to the Order of Liquidation, appellant foreclosed its mortgage. Final judgment of foreclosure was entered and the property sold for less than the amount of the mortgage indebtedness. On the date of the Order of Liquidation, appellant having loaned Financial Fire the total amount of $379,000, was in possession of the unpaid collateral notes in the amounts of $200,000, $154,000, and $25,000 respectively, and was in possession of the bonds and securities it had to secure payment of the collateral notes.

On March 12,1975, the receiver of Financial Fire entered into an agreement with appellant whereby they agreed that appellant would sell the securities and apply the proceeds to pay off the loan ($379,000) and place the balance of the proceeds in escrow in the name of the receiver and appellant. At this point, Financial Fire had satisfied its obligation to appellant for the $379,000 loan, but it had not satisfied its obligation to complete construction of the project under the performance bonds. Appellant considered that the balance of the proceeds from the sale of the securities should be applied to reimburse it for the amount in excess of the proceeds of the foreclosure sale that it had expended as a result of Financial Fire’s failure to perform. The receiver disagreed, and this disagreement forms the basis for the dispute which has resulted in this appeal. The trial court, by the order appealed from, directed appellant to pay over the balance of the proceeds to the receiver.

The collateral notes contain what has come to be known as a “dragnet” clause which states as follows:

“. . .as security for all other liabilities or obligations of each maker (including each maker and any other person) to Bank (primary, secondary, direct, contingent, sole, joint or several) due or to become due, or which may be hereafter contracted or acquired whether such liabilities arise from the ordinary course of business or otherwise.”

Appellants contend that under this “dragnet” clause, the loss it sustained as the result of Financial Fire’s failure to complete the construction of the improvement under its performance bonds is secured by the collateral that was pledged to appellant. Appellee contends that the “drague*’ clause did not encompass Financial Fire’s obligation under the performance bonds and that under § 631.262(1), Florida Statutes (1975) —a part of the insurance code relating to insurer insolvency — the transaction, insofar as it relates to the collateral as security for loss under the performance bonds, is voidable because that obligation, if any, occurred within six months prior to the filing of the petition in the delinquency proceeding brought under Chapter 631. § 631.262(1) provides as follows:

“(1) Every transfer made or suffered and every obligation incurred by an insurer within 1 year prior to the filing of a successful petition in any delinquency proceeding under this chapter, upon a showing by the receiver that the same was incurred without fair consideration, or with actual intent to hinder, delay, or defraud either then existing or future creditors, shall be fraudulent and voidable. However, every such transfer or obligation incurred or suffered within 6 months prior to the filing of the above petition shall be presumed void and fraudulent, with the burden of proof upon the obligee or transferee to show otherwise. This subsection shall not apply to a person who in good faith is a purchaser, lienor, or obligee, for a present fair equivalent value, but any purchaser, lienor, or obligee who in good faith has given a valuable consideration less than fair for such transfer, lien, or obligation may retain the property, lien, or obligation as a security for repayment. The court may, on due notice, order any such transfer or obligation to be preserved for the benefit of the estate, and in that event the receiver shall succeed to and may enforce the rights of the purchaser, lienor, or obligee.”

Appellant does not contest the ruling of the trial court that the obligation of Financial Fire, under its performance bonds, would be an antecedent debt and therefore would not constitute a “present, equivalent value” within the meaning of the above statute and does not contest that if the “transfer” took place after July 16, 1974, the transaction is voidable (except to the extent of appellant’s advance of new funds against the security of the collateral). The parties agree that the only question insofar as this particular point is concerned is whether or not the “transfer” took place before or after July 16, 1974.

Appellant, in support of its contention that the “transfer” took place prior to July 16, 1974, relies upon Chapter 631, Florida Statutes (1975) — the Insurance Code. Appellant points to § 631.262(2) which states as follows:

“(2) Transfers shall be deemed to have been made or suffered, or obligations incurred, when perfected according to the following criteria:
(a) A transfer of property other than real property shall be deemed to be made or suffered when it becomes so far perfected that no subsequent lien obtainable by legal or equitable proceedings on a simple contract could become superior to the rights of the transferee.” (Emphasis supplied.)

Appellant calls attention to the fact that § 679.303 provides that a security interest is perfected when it has attached and when all of the applicable steps required for perfection have been taken. Appellant further points out that under § 679.204 a security agreement attaches when (1) there is an agreement that it attach, (2) value is given, and (3) the debtor has rights in the collateral. Appellant then points out that under §§ 679.303 and 679.304, once a security interest has attached, the security interest in the collateral is perfected when the secured party takes possession. Appellant contends the trial court erred in ruling that appellant’s security interest in this collateral as security for Financial Fire’s performance under its completion bonds could not attach or be perfected until appellant received possession of the July 12, 1974, collateral note; that such was error because the securities had been delivered into appellant’s possession by Financial Fire and therefore a written agreement was not required in order for the security agreement to attach; that since a written security agreement was not required, possession of such an agreement by appellant was not necessary to the attachment of the security interest. Appellant in addition contends that even if this were not a collateral loan situation and appellant did not obtain possession of the securities, the security agreement would have been enforceable under § 679.203 against Financial Fire as soon as it had been signed rather than at the time appellant obtained possession of it; that the security agreement was signed by Financial Fire at least as of July 12, 1974, which is more than six months from the filing of the petition for receivership. We cannot agree with appellant’s contentions.

The fallacy of appellant’s argument is that under § 679.204 a security interest cannot attach until there is agreement that it attach. Appellant had the securities in its possession but had given no binding or enforceable commitment to Financial Fire as to the amount of money it would lend on the securities and the terms upon which it would make the loan. No agreement existed as of July 5,1974 (the date the securities were delivered to appellant) under which a security interest could have attached. Mr. Ehlis, president of appellant Bank testified in his deposition as follows:

“A. No, they explained to me that they had a big loss in a complex out in Texas, some place, and they were using a lot of ready cash out there; and they had a good number of bonds on deposit in the bank in Fort Lauderdale, in the trust department. And if they transferred those bonds up here, would we lend them money against them?
And I said, ‘Yes, I’d consider that.’ And it didn’t seem illogical to me to lend them the money on good bonds. I asked them to furnish me a list of what bonds they had; and I would tell them how much I’d lend on each specified bond.
And when they furnished me a list, I broke it down into three categories. One: I would call it to the top grade bond; that I was willing to lend as much as ninety percent on it.
Another one that was a more marginal bond; that I think I said I would lend about sixty, seventy percent on.
And the draw, I wouldn’t let him — it was about fifty percent on. A few I wouldn’t take.
Q. So you actually rejected some that they proposed?
A. It seem to me I did, yes.”

There was no agreement between the parties that a security interest attach to the collateral in the hands of appellant until the notes which Financial Fire later delivered to appellant were accepted and appellant had bound itself to lend Financial Fire the amount of money provided for in the notes. The notes and a corporate resolution of Financial Fire which had been requested by appellant were not delivered by Financial Fire’s attorney to appellant until July 19, 1974, and monies were not advanced to Financial Fire on the notes until July 22,1974. Thus, there was no agreement between the parties that the collateral attach until at least July 19, 1974. Compare Kendel v. Pontious, 261 So.2d 167 (Fla.1972).

Having determined that the agreement for the security interest to attach to the collateral did not occur until on or after July 19, 1974, it would not be appropriate for us to rule on the question of whether or not the “dragnet” clause would have been applicable to Financial Fire’s obligation under its performance bond.

Affirmed.

RAWLS and SMITH, JJ., concur.


source: Caselaw Access Project

author:
CALOGERO, Justice. SANDERS, Chief Justice
      SUMMERS, Justice

license: Public Domain

text:
    STATE of Louisiana v. Woodrow McGHEE, Van Richardson and Herman Borden.
    No. 59365.
    Supreme Court of Louisiana.
    Sept. 19, 1977.
    Dissenting Opinion Oct. 11, 1977.

      Sessions, Fishman, Rosenson, Snellings & Boisfontaine, Thorne D. Harris, III, Arthur A. Lemann, III, Supervising ,Atty., New Orleans, Larry Samuel, Student Practitioner, Loyola Law School Clinic, for defendants-appellants.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Henry Julien, Asst. Dist. Atty., for plaintiff-appellee.
   CALOGERO, Justice.

On the morning of June 22, 1975 three men entered a barroom in the New Orleans area called the Brown Derby. Two of the men were carrying pistols and a third a Winchester rifle. After entering, one of the gunmen took a position in the center of the barroom and stood guard over those patrons present. The two remaining gunmen then proceeded to climb over the bar and force the owners to hand over approximately $1,600.00 in cash and three hand guns. Thereafter the gunmen safely made their escape. Approximately six days later, a car with six male occupants was stopped by police for an investigation concerning an unrelated crime. Inside the car the police found the three hand guns which later proved to have been taken in the armed robbery of June 22nd. Upon further investigation by police three of the six occupants of the car (the present defendants McGhee, Richardson and Borden) were charged by bill of information with the armed robbery at the Brown Derby. After a trial by jury each defendant was found guilty and sentenced to serve fifty years at hard labor. Because we find merit in several of defendants’ assignments, we discuss only certain of them.

ASSIGNMENTS OF ERROR NOS. 1 and 12

Part of the evidence upon which the defendants were convicted was the testimony of several witnesses who each identified one or more of the defendants as participants in the crime. Two of the witnesses identified certain of the defendants both in court and at a pre-trial lineup and others made only in-court identifications. The procedure employed for witness identifications immediately succeeding the lineup viewing gives rise to the first issue we consider herein.

On September 3, 1975, twenty-five days after defendants had been charged with this crime by bill of information, two alleged witnesses, the bar owner and a patron, attended a lineup in which the three defendants and three other men were required to appear. Counsel for the defendants, being advised of the lineup, attended and were allowed to choose defendants’ places in the lineup. Additionally, the lawyers were allowed to remain in the room with the witnesses while they viewed the suspects. However, defendants’ attorneys were not permitted to be present when, following the viewing, the witnesses conferred with police officers to express their opinions concerning the lineup participants. Instead, each witness was separately taken into an adjacent room where identifications were made and recorded. Thereafter, the defense attorneys were informed of the results of the identifications. This exclusion of defense counsel from the actual identification is alleged by the present defendants to be a violation of their rights to counsel protected by the constitutions of both the United States and the State of Louisiana.

Our decision herein on this issue is controlled by our construction of the sixth amendment to the United States Constitution, the U.S. Supreme Court’s decision (and our interpretation thereof) in United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967) and its companion cases Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967) and Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967), as well as Article I, section 13 of the Louisiana Constitution of 1974.

In United States v. Wade, supra, the United States Supreme Court held that the sixth amendment’s provision entitling a criminal defendant to the “Assistance of Counsel for his defence” requires that an accused’s lawyer be afforded notice of and the opportunity to be present at a lineup held subsequent to indictment or bill of information. The Wade Court asserted that the United States Supreme Court cases have construed the sixth amendment guarantee to apply to all “critical stages of the proceedings” and that this included “any stage of the prosecution, formal or informal, in court or out, where counsel’s absence might derogate from the accused’s right to a fair trial.” 388 U.S. at 226, 87 S.Ct. at 1932. The Court further stated that “any pretrial confrontation of the accused” must be scrutinized “to determine whether the presence of his counsel is necessary to preserve the defendant’s basic right to a fair trial as affected by his right meaningfully to cross-examine the witnesses against him and to have effective assistance of counsel at the trial itself.” 388 U.S. at 227, 87 S.Ct. at 1932.

The Court then went on to analyze whether potential substantial prejudice to defendant’s rights inheres in the particular confrontation (the lineup) and the ability of counsel to help avoid that prejudice. Considering the high incidence of miscarriages of justice from mistaken identification, the "degree of suggestion inherent in the manner in which the prosecution presents a suspect to witnesses for pre-trial identification, and the accused’s inability to reconstruct or recount any unfairness that occurs at the lineup, the Court concluded that the post-indictment lineup was a critical stage of the prosecution at which defendant was as much entitled to aid of counsel as at the trial itself. The court viewed the mere presence of counsel as a prevention of prejudice and assurance of a meaningful confrontation at trial.

In Wade, defendant’s attorney was not advised of, nor permitted to attend the lineup or any part thereof. Thus the court’s ruling did not focus upon the anatomy of a lineup, nor did it have reason to specifically assert that the lineup which defendant’s- attorney should be allowed to attend includes the post-viewing session between witness and police. Nonetheless it seems very clear to us that the lineup as a stage of the proceedings against a charged defendant is made up of several interdependent parts: the suspect parade or assembly, the witness’ viewing, the witness’ reaction to the viewing, and the witness’ verbal or written assertion of that reaction. The confrontation which Wade concluded was a critical stage of the prosecution can hardly be said to have terminated with the witness’ viewing. The witness’ reaction is surely a part of the viewing, and its communication is surely a part of the lineup. Furthermore, confrontation in the context of a “stage” of prosecution should rationally include not only a defendant’s being placed for view before a witness for that witness’ reaction (identification) but also, by virtue of his counsel’s presence, the defendant’s being entitled to have viewed the witness’ condemnatory verbal or written identification. Surely this must be so if, as Wade says, counsel’s presence at the lineup is necessary to facilitate meaningful cross-examination at a suppression hearing and/or at trial, and possibly to prevent, by his simple presence, otherwise improper influence or suggestion.

We conclude therefore that an application of Wade requires a finding that the sixth amendment to the federal constitution mandates the opportunity for counsel’s presence at the entire post-indictment lineup, including the witness’ response stage.

Independent of our conclusion reached above based on the sixth amendment to the federal constitution and our interpretation of United States v. Wade, supra, the same result is dictated herein by Article I, section 13 of our own Constitution of 1974. It provides in pertinent part that “at each stage of the proceedings, every person is entitled to assistance of counsel of his choice, or appointed by the court . . .” For those reasons which prompted the United States Supreme Court in Wade to conclude that a post-indictment lineup is a “critical stage” of a criminal prosecution, we conclude that the post-indictment lineup is also a “stage” of the criminal proceedings under Article I, section 13 of the Louisiana Constitution of 1974. Thus an accused is entitled to the assistance of counsel at the lineup “stage” of the proceedings. We conclude today not only that an accused is entitled to the assistance of counsel at the lineup “stage” but also that part of this “stage” includes a witness’ post-viewing response. We reach this conclusion for those same reasons we discussed in our interpretation of the Wade decision, supra.

The state’s introduction at trial of evidence concerning the constitutionally deficient lineup proceedings warrants a reversal of the defendants’ convictions and the ordering of a new trial. See, Gilbert v. California, supra. We therefore find that these three defendants were improperly denied their constitutional right to have counsel attend the post-information lineup when their attorneys were excluded from the witness-police post-viewing response conference. This assignment, and the succeeding one, require reversal of these convictions.

ASSIGNMENT OF ERROR NO. 2

During the course of the trial, and particularly during voir dire examination of prospective jurors, the assistant district attorney referred to and repeatedly emphasized the presumption “that the person in the unexplained possession of property recently stolen is the thief”. R.S. 15:432. The controverted voir dire comments were these:

“Now, ladies and gentlemen of the jury, one of the five presumptions in law is the fact that the defendant is innocent. There’s another presumption, too, and that presumption is found in Title 15:432. Right alongside the fact that it says a defendant is innocent, it says that the person in the unexplained possession of property recently stolen is presumed to be the thief. That’s a presumption of law.”

Defendant objected to these statements but was overruled and the prosecutor continued in the same vein:

“Ladies and gentlemen, the presumption is that the person in unexplained possession of property recently stolen is presumed to be the thief. The reason why I’m bringing up this presumption is because you will remember one of the elements of armed robbery is that there must be a theft, and this presumption is that if you can find a situation where a person has property on him that’s proved to be recently stolen and he can’t explain why he has that property, then the law says he’s presumed to be the thief.”

Again the prosecutor emphasized the presumption when he stated to the jurors:

“Earlier, I read a presumption in the law. That presumption is as strong as the presumption that the defendant is presumed to be innocent, that he is just as innocent as any defendant who ever walked into a court of law. The presumption I give you is the presumption that a person found in the unexplained possession of property recently stolen is presumed to be the thief.” (emphasis provided)

Defense counsel’s objection was again overruled by the judge, and the prosecutor asked: “Ladies and gentlemen, can each of you accept that presumption?”

Defendants contend that these comments unconstitutionally prejudiced their cases because:

1) the presumption of R.S. 15:432 cannot be utilized in an armed robbery case, citing State v. Searle, 339 So.2d 1194 (La.1976);
2) the references violated defendants’ right to remain silent in violation of the federal and state constitutions;
3) the presumption of R.S. 15:432 as written violates Article I, section 16 of the Louisiana Constitution;
4) the prosecutor’s remarks violated Article I, section 16 of the Louisiana Constitution of 1974 because he incorrectly stated that R.S. 15:432 provides a presumption as strong as the presumption of innocence.

We note initially that the impact of the remarks on the trial cannot be underestimated. As indicated earlier, three hand guns taken in an armed robbery were discovered, not necessarily in the possession of these three defendants, but inside an automobile in which they and three others were riding. Since the principal evidence against the three defendants was the dubious identification testimony of three elderly witnesses, the prosecutor’s repeated references to the presumptions at issue formed an important aspect of the state’s proof in the case. For a juror possibly unimpressed by the identification evidence, the emphasized presumption was undoubtedly significant in his deliberations.

We pretermit discussion of the first three of defendants’ arguments because we find argument number four clearly meritorious in light of our decision in State v. Wingerter, 339 So.2d 1 (La.1976).

State v. Wingerter, supra, and a similar case, State v. Searle, 339 So.2d 1194 (La. 1976) were handed down together and deal generally with the problem of the presumption of theft in R.S. 15:432. In the lead case, which involved a burglary, not a theft, State v. Searle, we fully amplified the rationale of our decision regarding presumptions. There we held that the judicially-created presumption that a defendant found in possession of property recently stolen in a burglary is presumed to have committed burglary violates due process. There we said at page 1202:

“It is now clear that the due process requirement of the federal constitution obliges the prosecution to prove beyond a reasonable doubt every fact necessary to constitute the crime charged. In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970), and that, accordingly, a state may not shift the burden of ultimate persuasion of an essential element of the crime charged to the defendant in a criminal case. Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975).”

In State v. Wingerter, supra, the Court relied on the Searle reasoning in a situation much like the one before us. There the assistant district attorney, almost identically to the prosecutor in the instant case, said that the presumption that a person in the unexplained possession of property is presumed to be the thief “is just as strong — just as strong as the presumption that these two people are innocent. . . ” We vacated defendant’s conviction and held that:

“the assistant district attorney’s remarks constituted reversible error because a criminal presumption against the defendant relating to an essential element of the crime charged can never be ‘as strong as’ the presumption of innocence which the prosecution is required to overcome by proof beyond a reasonable doubt. La. Const.1974, Art. I, § 16; In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). A presumption or inference against the defendant arising out of the exclusive and unexplained possession of recently stolen property, even if properly established, cannot shift the ultimate burden of persuasion upon an essential element of the crime to the defendant. La. Const.1974, Art. I, §§ 2,13,16; Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975).” 339 So.2d at 3.

Precisely the same rule attaches in the case now before us. The prosecutor told the jury that the presumption of theft is “as strong as” the presumption that a defendant is presumed innocent, a statement that prejudiced defendants’ constitutional rights to be presumed innocent and to be found guilty only if the state has proved them guilty beyond a reasonable doubt. For this reason, assignment of error number two has merit.

ASSIGNMENT OF ERROR NO. 3

Defendants contend that the trial court erred in limiting the scope of defense questions posed on voir dire examination. After defense counsel received responses to questions concerning whether the prospective jurors had previously served on juries, and whether such juries had reached verdicts, he posed the question, “what was the verdict of that case?” A state objection was sustained. That ruling is the subject of assignment of error number three.

Since the trial of this case in 1975, this issue, at least peripherally, has been raised in this Court on two occasions. In State v. Wright, 344 So.2d 1014 (La.1977), the Court dealt with the question of whether a defendant is entitled to a list in the prosecutor’s possession which revealed a prospective juror’s past voting record. The court, assuming without deciding that the list was the “work product” of the state’s attorneys, held that the list should be discoverable if the defendant makes the showing that 1) the prosecutor actually used the list in voir dire and 2) that the defendant could not obtain the information from any other source. However, the court also noted that, had defendant made the showing referred to above and been denied the right to question the prospective jurors as to their voting records, reversible error would have been demonstrated because due process would have been denied by allowing the state the non-reciprocal advantage of knowing the voting records. See 344 So.2d at 1017.

In State v. Holmes, 347 So.2d 221 (La.1977) this Court held that since the defendant had not shown that he could not find the voting record information during voir dire, his request for the voting list was premature. The Court overruled past cases which had denied defendants the right to inquire into past jury service, verdicts reached, etc. during voir dire.

In the case at hand the voting lists are not in question. The only issue is whether defendants are entitled to know the verdict reached in past cases in which the prospective juror served. In Holmes this Court held that the constitutional right to full voir dire examination guarantees a defendant the right to ask this question. La. Const, art. I, § 17. Accordingly, the trial judge should have permitted the question.

We need not pass upon whether this meritorious assignment of error requires reversal of the conviction (i. e. should Holmes and this decision be given retroactive effect) in view of the fact that a new trial is being ordered because of reversible error in connection with assignments of error one and twelve, and in connection with assignment number two.

For the foregoing reasons the convictions and sentences of defendants Woodrow McGhee, Van Richardson, and Herman Borden are reversed and the cases remanded for retrial.

SANDERS, C. J., and SUMMERS, J., dissent with written reasons.

MARCUS, J., dissents.

SANDERS, Chief Justice

(dissenting).

In the present case, the attorneys for defendants attended the identification lineup and monitored the procedure. However, they did not monitor the post-lineup conversation between the police officers and each of the witnesses. For this reason, the majority sets aside the conviction.

In a similar case, the identical contention was rejected by the United States Court of Appeals for the Fifth Circuit in United States v. Banks, 485 F.2d 545 (1973). I would follow that decision in the present case. As noted in that case, a private conference with each witness is required after the lineup to prevent the initial response of one witness from prejudicing the response of another. The identification can be fully tested at the hearing on the motion to suppress.

For the reasons assigned, I respectfully dissent.

SUMMERS, Justice

(dissenting).

I dissent for the reasons assigned by the Chief Justice.

      . On appeal defendants Borden and McGhee filed briefs in support of essentially identical assignments of error. Defendant Richardson adopted defendant Borden’s brief. The numbering of the assignments we adopt is that offered by defendant Borden.

      . The record in the present case shows that the defense attorneys received information to the effect that one witness at the lineup had identified two of the defendants and the other witness at the lineup had identified one. The record also shows, however, that they were not informed that the witness who identified only one of the defendants had also made a misiden-tification. This fact was discovered through cross-examination of that witness. For further discussion of the testimony of this witness, see footnote five.

      . “In all criminal prosecutions the accused shall enjoy the right ... to have the Assistance of Counsel for his defence.”

      . “ * * * At each stage of the proceedings, every person is entitled to assistance of counsel of his choice, or appointed by the court if he is indigent and charged with an offense punishable by imprisonment. * * * ”

      . Although the record in the present case is not conclusive in this regard, we note that the likelihood of improper influence was present here, as indicated by the following cross-examination of one of the witnesses present at the lineup:
      “Q. Do you recall the numbers of the people you picked out of the lineup?
      A. Yes, number 4 and number 8. [Number 4 was one of the defendants; number 8 was not.]
      ******
      Q. Number 4 that you identified at the lineup, which one of those two people was he in the robbery? The one by the cage, or the one at the other end of the bar?
      A. He was the one by the end of the bar.
      Q. And number 8, where was he?
      A. That was the one what shot at Frank. But they said that wasn’t the number 8 man. But the one that shot at Frank was the little big-eyed fellow over there.

      ******
      Q. Do you see the individuals who committed that robbery in that photograph?
      A. Yeah, this one here.
      Q. What’s his number?
      A. Number 4.

        Q. What other person?
      A. Well, I got number 8. Number 8.” (emphasis added)

      . We are not unaware of the lower federal court cases which have confronted this same problem and desisted from adopting the per se rule we espouse herein. See: United States v. Wilcox, 507 F.2d 364 (4th Cir. 1974), cert. denied, 420 U.S. 979, 95 S.Ct. 1408, 43 L.Ed.2d 661 (1975); United States v. Banks, 485 F.2d 545 (5th Cir. 1973), cert. denied, 416 U.S. 987, 94 S.Ct. 2391, 40 L.Ed.2d 764 (1974); Doss v. United States, 431 F.2d 601 (9th Cir 1970); United States v. Cunningham, 423 F.2d 1269 (4th Cir. 1970). Nor are we unaware of the United States Supreme Court’s decision in United States v. Ash, 413 U.S. 300, 93 S.Ct. 2568, 37 L.Ed.2d 619 (1973), wherein the Court found the rationale of the Wade decision to be inapplicable to a photographic identification due to the differences in the circumstances surrounding a photographic identification and a lineup.

      . The full statements of the prosecutor in State v. Wingerter can be found at 339 So.2d at 2-3 and are quoted in part below:
      “There’s a presumption in the law, in addition to the fact that these two people are presumed innocent, as you well know, just like any other defendant that’s come into a court of law. Side by side with that in our law there’s a presumption in our law which says a person who is found in possession of property recently stolen — O.K.—in the unexplained possession that person is presumed to be a thief. Alright, the person who is found in possession of property, and that property is proved to have been recently stolen, and that person cannot explain why he or she has that property, then that person is believed or presumed to be the thief. That presumption, ladies and gentlemen is just as strong — just as strong as the presumption that these two people are innocent. . . . ”

      . Our decision today only concerns the permissibility of defense counsel’s inquiring into the verdicts reached in past cases in which a prospective juror served because that was the only question concerning prior voting records posed by counsel in the present case. Consequently, we do not address what would be the next logical question, i. e. how the particular juror(s) voted in those past verdicts. An answer to that question would merely constitute dicta and therefore has not been provided in this opinion. However, it is evident, certainly in this author’s view, that defense counsel should be permitted to inquire of a prospective juror how he or she voted as a member of prior juries. Otherwise, absent production of the District Attorney’s list of compiled data on the prior voting records of the prospective jurors, defendant would be denied an unfettered opportunity to elicit information of a comparable nature to what the state has assembled prior to trial.


author: WATSON, Judge.

text:
    Louis LEGER, Jr., Plaintiff-Appellant, v. DELANO PLANTATION INC. et al., Defendant-Appellee.
    No. 6163.
    Court of Appeal of Louisiana, Third Circuit.
    Sept. 19, 1977.
    Rehearing Denied Oct. 11, 1977.
    Edwards, Stefanski & Barousse, Crowley (Larry C. Dupuis, Crowley, of counsel), for plaintiff-appellant.
    Dean & Lomenick, Otis E. Lomenick, Jr., and G. Fred Seemann, Opelousas, for defendant-appellee.
    Before DOMENGEAUX, WATSON and GUIDRY, JJ.
   WATSON, Judge.

MOTION TO REMAND

The plaintiff-appellant, Louis Leger, Jr., moves to remand this suit to the trial court for the purpose of introducing additional evidence. In the alternative the plaintiff-appellant requests that he be permitted to file in this court a certified copy of a 1967 stock law ordinance of St. Landry Parish. The motion is opposed.

We deny the motion.

The plaintiff filed this tort action on June 12, 1973, seeking damages as a result of a collision between a car, driven by the plaintiff, and a cow, owned by the defendant. This case was tried on October 26, 1976. The matter was taken under advisement, and on January 17, 1977 the trial court rendered written reasons for judgment. A formal judgment was signed and rendered on February 1, 1977 in favor of the defendant dismissing plaintiffs suit. The plaintiff did not file a motion for a new trial.

In his reasons for judgment the trial court stated:

“I do not find that Highway No. 105 is listed in R.S. 3:2803. Therefore, the rule in Harrington vs. Upchurch, [La.App.], 331 So.2d 506, must apply. Defendant cannot be held liable and plaintiff’s claim must be dismissed.”

The plaintiff is now seeking to have this court remand this case on the grounds that he has recently discovered an ordinance of the Police Jury of St. Landry Parish, which was adopted on August 7, 1967, making Highway No. 105 a stocklaw highway under LSA-R.S. 3:3001 et seq.

In the case of McKinney v. Levy, 212 So.2d 279 (La.App. 3rd Cir. 1968), we stated:

»{: ¡}c sfc s}: % %
“As a general rule, the Courts of Appeal have the right to remand cases for new trial, additional evidence, etc. to prevent a miscarriage of justice. LSA-C.C.P. Articles 2082 and 2164 . . . The power to remand rests within the reviewing court’s discretion, but such procedure should be sparingly exercised.”

In Rougeau v. State Farm Mutual Automobile Insurance Company, 262 So.2d 803 (La.App. 3rd Cir. 1972), we held that it is incumbent on the party moving for a remand on the basis on newly discovered evidence to show that the evidence could not have been produced on the trial on the merits.

In the present case the accident occurred on September 26, 1972, and the trial was not held until a little over four (4) years later, on October 26,1976. The copy of the ordinance and documents which the plaintiff has attached to his motion show that the ordinance was adopted in 1967, and that the copy attached is a xerox copy from a page of the Code of the Police Jury of St. Landry Parish. Plaintiff has given no explanation as to why he could not locate this ordinance in the some four years this matter was pending in the lower court.

Additionally, we note particularly that the plaintiff did not apply for a new trial. After reviewing the district court’s reasons for judgment on January 18, 1977, (we assume attorney received a copy of the reasons for judgment the day after it was mailed), and thus being aware at that time of the reason the case was lost, plaintiff’s counsel did not apply for a new trial, although he had until February 10, 1977 in which to do so.

Under the circumstances of this case we do not believe that the interest of justice will be served by remanding this case for the introduction of additional evidence.

As to plaintiff’s alternative request that he be permitted to file a copy of the ordinance with this court, it is Hornbook law that the Courts of Appeal may not consider evidence which was not previously introduced in the trial court. Delahoussaye v. Porrier, 232 So.2d 562 (La.App. 3rd Cir. 1970).

MOTION DENIED.


author: LEMMON, Judge.

text:
    Pearl SMITH v. RASPBERRY CONSTRUCTION COMPANY, INC. and Employers Mutual Insurance Company of Wisconsin.
    No. 8187.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 30, 1977.

      Orlando G. Bendana, New Orleans, for plaintiff-appellant.
    Ronald L. Ronzello and Louis M. Kiefer, New Orleans, for defendants-appellees.
    Before LEMMON, STOULIG and BOU-TALL, JJ.
   LEMMON, Judge.

The issue in plaintiff’s appeal from the dismissal of his workmen’s compensation suit is the sufficiency of his evidence as to any disability caused by a work-related accident.

Plaintiff, a 43-year old general laborer for defendant building contractor, was injured on December 12, 1973 when scaffold boards fell on his head which was protected by a safety hat. The following day he complained of pain in the neck and was sent to an industrial medicine clinic, where he received frequent (55 in total number) heat treatments for acute cervical sprain through April 26, 1974, at which time he was discharged as cured. There was one more office visit about two weeks later.

In the meantime plaintiff had returned to work immediately after the accident. He was assigned light duties, mainly sweeping, light cleaning and supervision of laborers, for about 1 xh months, and then'resumed his regular duties. He left defendant’s employment on May 23, 1974 because “the work began to get too hard”.

Plaintiff thereafter obtained a job with another construction company. He eventually secured regular employment as a cook in a hotel, where he was working at the time of his deposition on April 18,1975. In the deposition he stated his neck “still bothers me every once and a while” (although at trial in February, 1976, when he was still working as a cook, he testified that his neck “hurts me all the time”), and he had not consulted a doctor in the year that elapsed since he was discharged from the clinic.

On September 17, 1975, plaintiff consulted a neurosurgeon, who found limitation of cervical spine motion in all directions, without radiation of pain, and degenerative narrowing of the fifth and sixth disc spaces shown by X-rays. 'The doctor diagnosed degenerative cervical disc disease with secondary neck pain. Since the changes shown on the X-rays could develop in two years, the doctor admitted “there’s no way for me to know whether he had the degenerative change prior to the accident or it developed subsequent to the accident”, although he thought the injury was probably superimposed on the disease and produced symptoms which would last longer than a sprain on a non-diseased neck. The doctor’s records showed no complaints of shoulder pain, and he specifically noted there was no true brachial plexus tenderness. He opined that heavy manual labor “would probably make it (pain related by patient) worse”.

The only other physician presented, an orthopedic surgeon, examined plaintiff two months later. He found no limitation of neck motion and no other objective clinical findings relative to the neck, although he noted on X-rays the changes in the cervical spine. He also stated he could not determine whether the condition predated the accident.

As the only positive clinical finding, the orthopedist noted a limitation in the last five degrees-of shoulder motion on abduction (lifting the arms from the side over the shoulder), which he classified as a minor limitation. From this finding, from preex-istent degenerative changes (observed on X-rays) in the shoulder associated with calcification and bursitis, and from the history of the accident, he diagnosed degenerative tendinitis (inflammation of the tendon) aggravated by the accident as the cause of some of the neck pain. He was reinforced in the belief that trauma precipitated the pain by the fact that calcification was present on both sides and symptoms occurred only on the side which he believed had been injured.

Plaintiff’s proof problems were considerable because of the void in medical treatment and consultation between plaintiff’s termination of work (five months after the accident) and the dates of the examinations of the testifying physicians (almost two years after the accident). Furthermore, the neurosurgeon’s sole clinical finding at that time of motion limitation in the neck was contradicted by the orthopedic surgeon. On the other hand, the orthopedist’s sole clinical finding of degenerative changes in the shoulder on the right side was not supported as to causation, because the record is completely devoid of any evidence of trauma to the shoulder or of any complaints of shoulder pain at any time relative to the accident.

On the basis of the overall evidence the trial judge could reasonably have concluded that plaintiff’s proof did not show any injury caused by the December, 1973 accident which resulted in any total or partial disability.

The judgment is affirmed.

AFFIRMED.

      . The treating physician from the clinic and the clinic’s two orthopedic consultants were not presented at trial. The treating physician’s report, introduced into evidence by stipulation, indicated plaintiff was considered able to resume work on the date of first treatment.

      . The record is virtually void of information as to the regularity of plaintiffs employment before he went to work for defendant, two months prior to the accident. Plaintiff did testify that the only type of work he had ever done was pouring concrete and rolling concrete with wheelbarrows for various individuals (as opposed to larger subcontractors).

      . The doctor stated:
      “A. The degenerative changes (of the shoulders) are bilateral and they undoubtedly preexisted the accident. The blow on the shoulder causing pain on the changes is very consistent.
      “Q. As a result of this accident did you form an opinion?
      “A. Yes. In regard to the shoulder I felt he had limited motion of the shoulder and he had degenerative tendinitis by X-rays and the both of them both of them together I felt explained at least some of his pain which he described as neck pain, but it was in the general area of muscles that supply both shoulder and neck and I thought some of the problem was due to the degenerative tendinitis which by history had been aggravated by trauma.” (Emphasis supplied)

      . On this point the doctor observed:
      “In Mr. Smith the injury was to the right side and the left side although it has the calcification does not have a symptom. And this is not uncommon to find bilateral changes of degenerative tendinitis or arthritis with symptoms on one side and the side having a history of injury. Of course, I have no way of knowing if the history is correct and as a physician I would take the history at face value.” (Emphasis supplied)


author: JONES, Justice.

text:
    Ronald Paul ADAMS et al. v. Nathan MATHIS et al.
    CER-11.
    Supreme Court of Alabama.
    Sept. 9, 1977.

      William J. Baxley, Atty. Gen., and James T. Pons, Sp. Asst. Atty. Gen., Montgomery, for State Health Officer, State Committee of Public Health, All County Health Officers and Members of All County Boards of Health within the State of Alabama.
    Ira DeMent, U. S. Atty., Montgomery, Drew S. Days, III, Asst. Atty. Gen., Stephen A. Whinston, Atty., Dept, of Justice, Washington, D. C., for appellees.
   JONES, Justice.

Pursuant to Rule 18 of the ARAP, the United States District Court for the Middle District of Alabama, Southern Division, has requested this Court to answer certain questions of law which that Court deemed determinative of an action before it and on which there is no clear controlling precedent in the decisions of this Court.

The Federal District Court, in support of the certificate, submitted the following facts:

“(1) Ronald Paul Adams, et al, Plaintiffs, United States of America, Plaintiff-intervenor l Civil Action No. 74-70-S v. Nathan Mathis, et al., Defendants
“(2) This suit is brought by plaintiffs who represent a class consisting of all inmates who were confined since November 18, 1974, or who are presently confined, or will be confined in the future in the Houston County, Alabama, Jail. The United States has intervened as a plaintiff, and has been granted standing. The defendants are the Sheriff of Houston County, the Houston County Commissioners, the Houston County Board of Health, the Houston County Health Officer, the Alabama Committee of Public Health, the State Health Officer, the State Fire Marshal, the Alabama Board of Corrections, its Commissioner, chairman and members.
“Plaintiffs and plaintiff-intervenor contend that the acts and practices or failures to act, by defendants have resulted in conditions so deplorable that they constitute violations of plaintiffs’ First, Sixth, Eighth and Fourteenth Amendment rights. On February 21, 1977, the Sheriff and the members of the Houston County Board of County Commissioners entered into an agreement with counsel for plaintiffs and plaintiff-intervenor whereby those defendants stipulated that the conditions of the jail were such that the constitutional rights of the inmates had been and were being violated. A trial was held on the remaining issues between plaintiffs and those defendants remaining in the case. This trial was concluded on February 23,1977. In order to determine whether the State Health Officer and the Alabama Committee on Public Health have deprived plaintiffs of their constitutional rights, it is necessary to know what the duties of these defendants are with respect to whatever conditions the Court finds to exist at the Houston County Jail.
“(3) 1. Under the law of Alabama, what are the duties of (1) the Alabama Committee of Public Health (the State Board of Health) and (2) the State Health Officer with regard to the sanitary conditions and medical services to be maintained and provided in mates in the Houston County Jail? In particular, does the Alabama Committee of Public Health (the State Board of Health) and/or the State Health Officer have a duty to:
“a. Inspect the Houston County Jail? b. Correct or abate unsanitary conditions, conditions which are prejudicial to the health of the inmates or which are likely to become prejudicial to their health?
c. Discharge the duties of the Houston County Board of Health and/or the Houston County Health Officer in the event that said board or officer fails to discharge its respective duties?
“2. In title 22, section 7(4), of the Code of Alabama (Supp.1973), who are the ‘proper authorities’ to correct or abate any unsanitary or unhealthy conditions found to exist in the Houston County Jail?
“3. In title 22, section 14(4)(a), of the Code of Alabama (Recomp.1958), who are the ‘proper state authorities’ charged with the responsibility to take appropriate action in the event that the county officials fail to comply with the recommendations of the county health officer? “This certificate has been prepared by said federal court.”

In answer to Certified Question No. 1, we believe that while the powers, jurisdiction and authority of both the Alabama Committee of Public Health and the State Health Officer are quite extensive, their duties, as concerns the sanitary conditions of the Houston County jail, are limited to two specifics. First, the State Health Officer must supervise the county boards of health. Secondly, he must report delinquencies of the county health officers, known to him, to the county boards of health. In other words, should the State Health Officer have knowledge of the malfeasance or misfeasance of the Houston County Health Officer, as regards the Houston County jail, he must promptly report this to the Houston County Board of Health. Tit. 22, §§ 2(3), 9, Code. Because the duties of the Alabama Committee of Public Health and the State Health Officer are thus narrowed, we opine that neither has a duty to inspect the Houston County jail, nor to correct or abate unsanitary conditions; and that neither is legally responsible to discharge the duties placed upon the Houston County Board of Health and/or the Houston County Health Officer, in the event the Houston County Board or Houston County Health Officer fails to discharge their respective duties.

In answer to Certified Question No. 2, we are of the opinion that the Houston County Health Officer and the Houston County Board of Health are the “proper authorities” to call for the correction or abatement of unsanitary conditions in the Houston County jail; and that the Houston County Commission is the “proper authority” to ensure that any unsanitary condition has been abated. Tit. 22, § 8.

In response to Certified Question No. 3, we opine that the “proper state authorities” charged with the responsibility to take appropriate action should the above-named county officials fail to act are the Department of Corrections and Institutions (Board of Corrections) and its Director. Tit. 45, §§ 3, 10(1), 115, 161-62, 166-67, Code.

I.

In determining the duties of the Alabama Committee of Public Health and the State Health Officer, and determining which agency is responsible for sanitary measures in the Houston County jail, the overall scheme of the statutes, legislative intent and statutory interpretation are of paramount concern. State v. Bryan, 285 Ala. 247, 231 So.2d 118 (1970). This is because our responsibility is to give effect to the legislative intention where it has been manifested. State v. Union Tank Car Co., 281 Ala. 246, 201 So.2d 402 (1967). While this maxim is readily apparent, neither it nor the laws of Alabama clearly indicate what these “proper authorities” are. It is for this reason that legislative history must be explored to determine the intent of the legislature. City of Montgomery v. Montgomery City Lines, Inc., 254 Ala. 652, 49 So.2d 199 (1949).

Both appellants and appellees point out significant historical factors. Inspection of places of confinement began as early as 1883. No. 65, S. 144, §§ 13, 19, 1883 Ala. Acts. A Board of Inspectors, however, was not created until 1885. No. 112, H.B. 623, §§ 1, 3,17, 26,1885 Ala.Acts. This Act was amended twice to require the formulation of obligatory rules and the reporting of conditions in county jails. See No. 46, H.B. 885, 1889 Ala.Acts; and No. 138, H.B. 340, 1891 Ala.Acts. An integrated system evolved in 1893, whereby the Board of Inspectors came under the control of the Board of Managers of Convicts. Similarly, this board supervised the County Commission in its immediate control of county jails and convicts. No. 102V2, S. 38, §§ 1,4, 6, 49, 1893 Ala.Acts.

The State came to realize the harshness of local confinement and the need for more centralized control. For this reason, the office of Inspector of Jails was created. The Inspector’s duties included visiting each county jail at least twice a year, and securing the best sanitary conditions of the buildings and grounds of all such institutions. To this end, the legislature provided that the Inspector “shall be a practicing physician in good standing, learned in the science of sanitation and hygiene.” Ch. 239, § 7212, et seq., Code (1907). This office was abolished in 1935, but the duties were given to the Department of Corrections and Institutions (forerunner to the Board of Corrections) in 1939. See No. 61 H.B. 120, § 1, 1935 Ala.Acts; and No. 91, H.B. 261, § 4, 1939 Ala.Acts.

Though the duties of the State Prison Inspector were delegated to the Department of Corrections and Institutions, § 5 of the Act prevented the transfer of any functions or duties of the state or county boards of health. It must be remembered, however, only the Inspectors had the duty to inspect.

The present use of the words “authority and jurisdiction” in Tit. 22, § 7, Code, derive their existence from the words “right to” in § 702, Code (1907). Obviously, the legislature desired to give the State Health Officer the power to inspect jails without the companion duty to do so. On the contrary, however, the State Prison Inspector was required to inspect the county jails and to secure sanitary conditions therein. § 7215(1), (3), Code (1907).

From the difference in language between Tit. 22, § 7 (“ . . . state board of health shall have authority and . . . may discharge [duties] . . . ”), and Tit. 22, § 14(4)(a)(“It shall be the duty of the county health officer . [t]o visit all jails . . . and to make careful investigation . . . ”), it appears a power/duty distinction was purposefully created. Without more, the Court may not ignore the plain and usual meaning of words used in a statute. Morgan County Commission v. Powell, 292 Ala. 300, 293 So.2d 830 (1974).

II.

Tit. 22, § 14, Code, provides that should unsanitary conditions be found to exist in a jail, “proper steps shall be taken by proper authorities to have such conditions corrected or abated.” A reading of Tit. 22, §§ 8, 14, 76, Code, reveals that the duty to abate such unsanitary conditions falls upon the county board of health and the county health officer: ^

“It shall be the duty of the county boards of health . . . [t]o exercise special supervision over the sanitary conditions of jails . and whenever insanitary conditions are found, to use all legal means to have the same abated.” Tit. 22, § 8, Code.

Furthermore, the Houston County Judge of Probate and the County Commission are responsible for carrying out the recommendations of the county health officer. Tit. 22, § 14(4)(a), Code.

III.

Should these county officials fail to perform their duties, Tit. 22, § 14(4)(a), provides that “it shall be the duty of the proper state authorities to take such appropriate action.” (Emphasis added.) Certified Question No. 3 queries to whom this emphasized term refers.

Though this section was originally enacted in 1915, the provision for failure of compliance (cited above) was not added until 1935. On February 9, 1935, the legislature abolished the office of State Prison Inspector. In so doing, the governor was authorized to delegate the duties to some then-existing agency. Clearly, prior to this time, the State Prison Inspector would have been the “proper state authority.” However, because the post was abolished, the legislature could not name him as the responsible officer. At the same time, the governor had not appointed any new responsive agency. Therefore, the legislature could do no more, when this Act was passed on September 13, 1935, than delegate the responsibility to the “proper state authority” (i. e., the agency named by the governor).

Apparently, however, the governor never exercised his authority in appointing a responsive agency. For this reason, the prior duties of the State Prison Inspector were assigned to the Department of Corrections and Institutions by the legislature on March 1, 1939. Because this duty would have been placed upon the Inspector, logic indicates that the legislature intended it to fall upon the Inspector’s successor—The Department of Corrections and Institutions (the Board of Corrections). The statutes must be read as wholes. Alabama State Board of Health v. Chambers County, 335 So.2d 653 (Ala.1976). When read together, Titles 22 and 45, Code, clearly evince this conclusion.

The certifying Court on two prior occasions has held correctly that the Board of Corrections is the proper party-defendant in suits involving conditions in the State, county and municipal correctional facilities. See Pugh v. Locke, 406 F.Supp. 318 (M.D.Ala.1976); and Washington v. Lee, 263 F.Supp. 327 (M.D.Ala.1966). It is the proper party-defendant in the present action as well.

Conclusion

For many years, the duty of inspecting local correctional facilities has fallen upon the county boards of health and the county health officers. Upon finding unsanitary conditions, the county health officer reports them to the County Commission and makes recommendations for abatement.

The Code provides that the County Board of Health has the duty to inspect, while the State Board of Health merely has the authority to inspect. A required inspection by both the county and state agencies would be redundant and wasteful; and clearly, this dual function, though authorized, is not required by the Code.

On the other hand, for many years, the Code has required the Board of Corrections, and its predecessors, to make health and sanitation inspections of the facilities under its control; to continue to do so creates no new burden. The state budget for 1976 provided for inspection by the Board of Corrections; no such expense was included in the State Board of Health’s budget.

Should the county health officials or the County Commission fail to act, the Board of Corrections is required to do so. To hold otherwise would emasculate the provisions of Title 45. It must be presumed that these sections, requiring an inspection by the Board of Corrections, had a meaningful purpose. Fletcher v. Tuscaloosa Federal Savings and Loan Ass’n, 294 Ala. 173, 314 So.2d 51 (1975); and Starlite Lanes, Inc. v. State, 283 Ala. 48, 214 So.2d 324 (1968).

Had the legislature wished to place such duties upon the State Health Officer or the State Board of Health, it could have done so easily. The State Health Officer is mentioned immediately preceding the failure-of-compliance clause in Tit. 22, § 14. Because different words are used, and the state official is not re-mentioned, it must be presumed some different official is to be responsible in such circumstances. The maxim of expressio unius est exclusio alter-ms, when coupled with the ease of inclusion if such had been intended, requires this interpretation. See generally, Glencoe Paving Co. v. Graves, 266 Ala. 154, 94 So.2d 872 (1957).

CERTIFIED QUESTIONS ANSWERED.

All the Justices concur.

      . Under Tit. 22, § 7(4), the State Board of Health has the additional authority to inspect county jails.

      . Speech of Governor B. B. Comer, delivered to the Legislature, January 15, 1907.

      . Furthermore, Tit. 30, § 76, mandates that the grand jury make a personal inspection of the condition of the county jail, including the accommodation and health of its prisoners, and cause persons comprising the Court of County Commissioners, at the time the jail is found to be “insufficient,” to be indicted.

      . Thus, the governor was given this authority for over four years; yet, no agency was ever appointed.

      . No. 763, H.B. 387, 1976 Ala.Acts. Though slaughterhouses are also included under Tit. 22, § 7, the Department of Agriculture and Industries continues health inspections of them. The same is true with inspections of jail facilities; and this for the reason that the inspection is performed by the agency directly authorized to supervise the facility. In the circumstances before us, this is the Board of Corrections.


author: ALMON, Justice.

text:
    Mrs. Edwin John STAUB, Jr. v. ALABAMA POWER COMPANY, a corporation.
    SC 2225.
    Supreme Court of Alabama.
    Sept. 16, 1977.

      W. Eugene Rutledge of Rutledge & Pruett, Birmingham, for appellant.
    Marshall Timberlake of Balch, Bingham, Baker, Hawthorne, Williams & Ward, Birmingham, for appellee.
   ALMON, Justice.

This is an appeal from a summary judgment granted in favor of defendant-appel-lee, Alabama Power Company. Mrs. Edwin Staub, Jr., filed suit against Alabama Power Company alleging that she, as the dependent widow of Edwin John Staub, Jr., is entitled to benefits under a company funded pension plan. We affirm the judgment of the trial court.

Mr. Staub was employed by Alabama Power for approximately 22 years prior to his death on April 21, 1975, 15 days after turning age 54. Mr. Staub, on November 1, 1974, approximately 6 months before his death, had designated his wife as provisional payee under the provisions of the pension plan. Appellant acknowledges in her complaint that “[t]he plan provides that the designation of a ‘provisional payee’ will be.come effective one (1) year from the date of such designation or on the 55th birthday of the employee whichever is later,” and that Mr. Staub’s unfortunate death “terminated Mr. Staub’s service to the defendant prior to his 55th birthday and prior to one (1) year after the designation.” In other words, appellant acknowledges that by the unambiguous term of the plan, she is not entitled to any benefits.

Section VII of the plan (see footnote 1) provides that an employee who has 20 years of service or 15 years of service and is over age 50 (either of which would cover Mr. Staub) may terminate his services for any reason other than death or transfer to an affiliated company and still receive, “commencing at Normal Retirement Date” (age 65), retirement income. Under Section VII the designation of a provisional payee becomes inoperative upon termination of the employee’s services unless the termination occurs within 10 years prior to Normal Retirement Date (age 65) and the termination occurred on or after the effective date of the provisional payee election. Thus, Mr. Staub could have terminated employment after reaching age 55 and his provisional payee designation would have been in ef-feet as the one year period would have elapsed.

The complaint alleges that Mr. Staub had “vested rights” and (1) that the requirements that an employee who has vested retirement benefits must live to a certain age or a certain time after his designation of a provisional payee bears no reasonable relation to the plan and is arbitrary and capricious, (2) that the pension plan is a form of compensation and to deprive the employee’s estate and dependents of vested benefits is inequitable and unjust, and (3) that the limitations and restrictions are null and void due to past arbitrary exceptions to the provisions of the plan. Appellant contends that his complaint has become the “law of the case” due to Judge Ingram Beasley’s overruling of Alabama Power’s motion to dismiss for failure to state a cause of action, citing, inter alia, In re Midwest Milk Monopolization Litigation, 380 F.Supp. 880 (W.D.Mo.1974); the motion for summary judgment was later granted by Judge Russell McElroy. According to appellant, she need now only show a scintilla of evidence to support a reversal.

This is not the case. On appeal we will affirm a decision of a trial judge if it is correct, though it be for the wrong reason.

“Plaintiff contends that Judge Miner erred in overruling Judge Sullivan’s decision, D.C., 144 F.Supp. 480, denying defendants’ motion to dismiss the complaint on the ground that it failed to state a claim upon which relief could be granted. Plaintiff’s counsel speak of Judge Sullivan’s opinion as ‘the law of the case’. . The action of Judge Miner was the entry of a summary judgment and involved not merely the complaint which was before Judge Sullivan, but also offers of proof and evidence submitted only to Judge Miner.
.“Regardless of the impact of my law-of-the-case rule, our duty is to determine whether the judgment of Judge Miner is correct. In fact, we should sustain any judgment from which an appeal has been taken if it is supported by the record and the law, regardless of whether the lower court has ruled erroneously or has ruled at all on that ground. Jaffke v. Dunham, 352 U.S. 280, 281, 77 S.Ct. 307, 1 L.Ed.2d 314. Obviously we cannot be expected to reverse a correct decision by one district judge simply because we find that it is contrary to a prior ruling by another district judge in the same case, i. e. contrary to the ‘law of the case’ ”. Parmelee Transportation Company v. Keeshin, 292 F.2d 794, 797 (7 Cir. 1961).

Being actuarially based, the plan assumes that a certain portion of the employees will die without receiving any benefits or at least without receiving as many benefits as others. Without deciding whether the appellant has stated a cause of action, we see nothing arbitrary, as a matter of law, in the requirement that an employee reach a certain age — in this case, age 55— before he or his spouse, under the provisional payee provision, may receive retirement income.

Nor is the requirement unreasonable that a provisional payee be designated one year in advance of the date such designation becomes operative. If a provisional payee provision were immediately effective, the employee could make a deathbed designation and in effect require the funding of the plan to be based not only on the actuarial lives of the employees, but also their spouses.

The effective designation of a provisional payee lowers the amount of retirement benefits the employee may receive during his retirement years. 'In essence, the benefits the employee is actuarially likely to receive is spread over actuarial combined lives of him and his spouse. As we read Section VI, paragraph 2, a spouse will receive benefits if the employee dies with an effective provisional payee designation even if the employee had not retired, but were of retirement age. By paragraph 4 of Section VI, if the employee rescinds his designation of a provisional payee, his retirement income is reduced to reflect the added protection he had and the added risk the fund had during the time the provisional payee designation was in effect.

In our judgment, what this court said in Avondale Mills v. Saddler, 292 Ala. 134, 290 So.2d 173 (1974) applies equally well here:

“It is our conclusion that the integrity of the trust indenture as written must be upheld. We cannot and should not rewrite it. First National Bank of Birmingham v. Adams, 281 Ala. 404, 203 So.2d 124 (1967). The rights of the beneficiaries of the trust must be determined by the trust provisions. See Bailey v. Rockwell Spring and Axle Co., 13 Misc.2d 29, 175 N.Y.S.2d 104 (1958); Green v. Copco Steel, 22 Mich.App. 16, 176 N.W.2d 690 (1970). The trust indenture clearly states the requirements which an employee must meet in order to qualify for retirement benefits. . . . ”

As an example of an arbitrary exception to the plan made by the Retirement Board, appellant points to the case of another employee who did not have “vested rights” under Section VI, but who was given a leave of absence with pay a few months before reaching age 65 so that he might accept another position and still be eligible for retirement benefits upon reaching age 65. Without commenting on the propriety of such action, which is not the question before us, we note that the last paragraph of Section II, paragraph 2, provided for such action:

“An employee who is on authorized leave of absence and receiving his regular pay shall be considered a full-time regular employee and shall be included in the Plan if and when he meets the requirements of subsection 1 of this Section regardless of whether he is, on the date of such inclusion, on such leave of absence.”

The judgment of the trial court is affirmed. Assuming, without deciding, that the appellant has stated a cause of action, the appellant has not raised a genuine issue of material fact. (Rule 56, Alabama Rules of Civil Procedure).

The judgment is hereby affirmed.

AFFIRMED.

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

      . Of passing interest is the fact that Mrs. Staub received approximately $60,000 in life insurance proceeds from policies funded partially by the Alabama Power Co.

      . “PENSION PLAN OF ALABAMA POWER CO.
      “SECTION I. DEFINITIONS
      “ ‘Normal Retirement Date’ — The first day of the month following an employee’s 65th birthday.
      “ ‘Early Retirement Date’ — The first day of the month following the retirement of an employee on or after his 55th birthday and before his 65th birthday.
      “SECTION II. ELIGIBILITY
      “An employee who is on authorized leave of absence and receiving his regular pay shall be considered a full-time regular employee and shall be included in the Plan if and when he meets the requirements of subsection 1 of this Section regardless of whether he is, on the date of such inclusion, on such leave of absence.
      “SECTION IV. RETIREMENT
      “3. Retirement at Early Retirement Date. An employee having at least 20 years of Accredited Service (including any Accredited Service to which he is entitled under the pension plan of any company or companies now affiliated or associated with the Company, from which such employee was transferred pursuant to subsection 5 of Section III and including for the purposes of this subsection 3, Accredited Service under the Retirement Income Plan for Employees of Birmingham Electric Company, as amended) may elect to retire on an Early Retirement Date on or after his 55th birthday and before his 65th birthday (subject, however, to the consent of the Company if he has not attained age 60) and to have his Retirement Income under the Plan commence on that date.
      “9. Termination of Retirement Income. The monthly payment of the Retirement Income will cease with the last payment preceding the retired employee’s death; subject, however, to the continuation of payments to a surviving Provisional Payee, if one has been designated, which likewise will cease with the last payment preceding the death of the Provisional Payee. There shall be no benefits payable under the Plan on behalf of any employee whose death occurs prior to his retirement, except as otherwise provided in Section VI with respect to a Provisional Payee of an employee. Following the death of an employee and of his Provisional Payee, if any, no further payments will be made under the Plan on account of such employee or to his estate.
      “SECTION VI. PROVISIONAL PAYEE
      “1. An employee who desires to have his Retirement Income payable on or after the effective date of the designation of a Provisional Payee as hereinafter provided actuarially adjusted to provide, at his option, either
      “(a) a reduced amount payable to him for his lifetime with the provision that such reduced amount will be continued after his death to his spouse as Provisional Payee until the death of such Provisional Payee, or
      “(b) a reduced amount (greater than the amount in (a) above) payable to him for his lifetime with the provision that one-half of such reduced amount will be continued after his death to his spouse as Provisional Payee until the death of such Provisional Payee, may, subject to the conditions outlined below, and in lieu of any other form or method of payment of Retirement Income, designate such spouse as a Provisional Payee and at the same time elect to have payments made in accordance with the provisions of this Section.
      “2. Adjustment of Retirement Income by reason of the designation of a Provisional Payee in the event of an employee’s retirement on or after his 55th birthday will be based on the Retirement Income payable on his Early Retirement Date or Retirement Income payable on his Normal Retirement Date, as the case may be. If an employee who has designated a Provisional Payee dies prior to his retirement but añer the effective date of his Provisional Payee designation, there will be payable to his Provisional Payee for life Retirement Income in a reduced amount in accordance with the employee’s election of payments to be made to his Provisional Payee añer the death of the employee under (a) or (b), as the case may be, of subsection 1 of this Section VI. The reduced amount payable to the Provisional Payee shall be based on the employee’s Accrued Retirement Income at the date of his death actuarially adjusted.
      “Adjustments of Retirement Income shall be made in accordance with such actuarial tables as may be adopted by the Retirement Board and in use at the time of the employee’s death or at his Early or Normal Retirement Date, as the case may be.
      “3. An election of payment and designation of a Provisional Payee in accordance with this Section shall be made in writing at the same time on a form prescribed by the Retirement Board and delivered to it. The election and designation shall specify its effective date which shall not be sooner than one year from the date the executed form is received by the Retirement Board or the employee’s 55th birthday, whichever is later. The effective date may not be later than the date of commencement of payments in accordance with this Section VI.
      “If an employee’s service terminates for any reason (including early retirement) prior to the effective date of an election and designation, the election and designation made pursuant to this Section shall be inoperative and the regular provisions of the Plan shall again become applicable as if a Provisional Payee had not been designated.
      “4. An election and designation made pursuant to this Section shall be inoperative and the regular provisions of the Plan shall again become applicable as if a Provisional Payee had not been designated if, prior to the commencement of any payments in accordance with this Section, (a) an employee’s Provisional Payee shall die, except as provided in subsection 5 of this Section VI, or (b) the employee and the Provisional Payee shall be divorced, the divorce shall have become final and the Retirement Board shall have received the written request of the employee that the election and designation be inoperative, or (c) the Retirement Board shall have received the written election of the employee to rescind his election of payment and designation of a Provisional Payee. If such election to rescind is made by the employee his Accrued Retirement Income shall be actuarially reduced to refíect the protection afforded the employee by the Provisional Payee designation during the period from its effective date to the date of the Retirement Board’s receipt of the employee’s election to rescind.

      “5. If the Provisional Payee dies after the employee’s Normal Retirement Date but prior to the employee’s Deferred Retirement Date, upon retirement the employee will be entitled to receive the reduced Retirement Income he would have received in accordance with this Section had he retired on his Normal Retirement Date.
      “6. If an employee who has made an election and designation in accordance with this Section terminates his services on or after the effective date of such designation under such circumstances as to entitle him to payment of Retirement Income in accordance with Section VII of the Plan (but for his election and designation in accordance with this Section), and such employee shall die prior to his Normal Retirement Date, there will be payable to his Provisional Payee for life Retirement Income in a reduced amount in accordance with the employee’s election of payments to be made to his Provisional Payee after the death of the employee under (a) or (b), as the case may be, of subsection I of this Section VI. The reduced amount payable to the Provisional Payee shall be based upon the employee’s Accrued Retirement Income at the date of the termination of his service actuarially adjusted. If the employee shall be alive on his Normal Retirement Date, a reduced amount of Retirement Income, determined in accordance with this Section VI, based upon his Accrued Retirement Income at the date of the termination of his service will be payable to him commencing on his Normal Retirement Date, with payments in the same or reduced amount to be continued to his Provisional Payee for life after the employee’s death in accordance with his election. Payments in accordance with this subsection 6 will only be made if application to the Company is made within 5 years after the death of the employee, if he shall die prior to his Normal Retirement Date, or within 5 years after his Normal Retirement Date, if he shall be alive on that date.
      “SECTION VII. TERMINATION OF SERVICE
      “If the services of an employee included in the Plan terminate for any reason other than death or transfer to an affiliated or associated company as provided by subsection 5 of Section III or retirement as provided by Section IV, and if such employee has had at least 20 years of service with the Company (including service with companies or properties now affiliated or associated with the Company, service with companies or properties heretofore so affiliated or associated prior to the date of severance of such affiliation or association and service with Birmingham Electric Company), whether or not Accredited Service, or has had at least 15 years of such service and has attained the age of 50 at the time of such termination he will receive, commencing at Normal Retirement Date, Retirement Income equal to his Accrued Retirement Income at the date of the termination of such service provided that he makes application to the Company for the payment of such Retirement Income at Normal Retirement Date or within 5 years thereafter. If such employee has had less than 20 years of such service or had not attained the age of 50 having had at least 15 years of such service, he shall have no rights to any Retirement Income under the Plan based upon his service prior to such termination.
      “In no event shall such an employee be entitled to any Retirement Income until Normal Retirement Date nor shall the provisions as to minimum Retirement Income in subsection 4 of Section V be applicable to such an employee. The designation of any Provisional Payee by such an employee shall become inoperative upon the termination of his services unless such termination occurs within 10 years prior to Normal Retirement Date and either (a) the designation of the Provisional Payee was made and accepted prior to January 1, 1961 and such designation has not been rescinded, or (b) the designation of the Provisional Payee was made after January 1, 1961, and such termination of service occurred on or after the effective date of the election and designation made in accordance with Section VI.
      “SECTION IX. LIMITATION OF RIGHTS OF THE EMPLOYEE
      “This Plan shall not be deemed to constitute a contract between the Company and any employee or to be a consideration for, or condition of, the employment of any employee. Nothing contained in this Plan shall be deemed to give any employee the right to be retained in the service of the Company or to interfere with the right of the Company to discharge or retire any employee at any time. Inclusion under the Plan will not give any employee any right or claim to a Retirement Income except upon reaching Normal Retirement Date or Early Retirement Date and no employee or Provisional Payee shall be entitled to any right or claim to a Retirement Income except to the extent such right is specifically fixed under the terms of the Plan and there are funds available therefor in the hands of the Trustee.” (Emphasis added.)

      . Appellant does not argue her second allegation in brief and we will therefore make no further comment in regard to it.