text:
    Lincoln HEARD, alias v. STATE.
    3 Div. 371.
    Court of Criminal Appeals of Alabama.
    May 18, 1976.
    Paul D. Owens, Jr., Brewton, for appellant.
    William J. Baxley, Atty. Gen., and Lawson Little, Asst. Atty. Gen., for the State.
   BOOKOUT, Judge.

Assault with intent to murder; sentence: twenty years imprisonment.

The offense in question took place at Atmore State Prison (now Fountain Correctional Facility) on January 18, 1974. The assault took place during a prison riot, which the warden testified that some inmates termed a “revolution.” The victim was inmate John Boykin, who was beaten and stabbed by rioting prisoners in the prison’s segregation unit.

Other inmates have also been tried as a result of the riot, assaults and killing of a correctional officer. Johnny Harris, a key participant was convicted of first degree murder pursuant to Title 14, § 319, Code of Alabama 1940, and sentenced to death. His conviction was affirmed by this Court on January 20,1976, and is now pending in the Alabama Supreme Court. Harris v. State, Ala.App. Likewise, this Court, on this date, affirmed the conviction of Oscar Lee Johnson on a charge of second degree murder, growing out of the same riot. Johnson v. State (1976), 58 Ala.App. -, 335 So.2d 663. Although the facts concerning the instant appellant’s participation in the riot differ slightly from those in the Harris and Johnson cases, the propositions of law argued by the appellant are basically covered in our opinions in the other two cases.

The disturbance in question took place in the section of the prison designated as the “segregation unit” where prisoners are placed for refusal to obey prison regulations or for a serious infraction of the rules such as stabbing another inmate, possession of a weapon, or stealing.

Warden Harding testified that he was called to the segregation unit after the disturbance broke out, and he described what occurred:

“When I arrived at the window, the window was blocked out either by cardboard or cloth and I couldn’t see in. At that time I called for George Dobbins who was told to me that he was the leader of the revolution.
******
“. . . When I looked in, I asked him what the problem was. And I could see inmate George Dobbins and inmate Oscar Johnson, inmate Frank Moore and inmate Lincoln Heard.
******
“I asked inmáte Dobbins what the problem was and he said, ‘We don’t have a problem. You have a problem.’ Said, ‘We’re not bitching about the food; we are not bitching about the conditions of this prison but this is a revolution and we are all in this thing together.’
******
“. . . At that time I continued to ask him what his problem was and inmate Oscar Johnson was pecking on the window with a knife, prison-made knife, and he said to me: ‘Listen and listen good; we mean business. This is no game. Some of us may die today but before we do we are going to kill some mother-_pigs.’ .
******
“. . .1 asked them to be quiet so I could hear what George Dobbins had to say. And at that time inmate Lincoln Heard told me that I wasn’t talking to George Dobbins, that I was talking to all of them.”

The Warden said Dobbins told him, “We have already killed some snitches and house niggers,” and that the inmates dragged what appeared to be the dead bodies of Jewell Thomas and John Boykin down the hall on a blanket.

Warden Harding testified that the inmates, on order of Dobbins, brought Officer Arthur Dreadin, who was being held hostage, to the front and stood around him threatening to kill him. He stated that, “Oscar Johnson and George Dobbins and Frank Moore had prison-made knives. Inmate Lincoln Heard had a club or a night stick, looked like one of the officers’ night sticks.” Officer Dreadin shouted for help, and the law enforcement officers rushed the segregation unit. The Warden saw two of the inmates stab Officer Dreadin as the officers rushed into the unit.

The Warden further testified:

“A. They were throwing knives, pieces of commodes they had broken up, aerosol cans, anything they could get their hands, glass, (sic). They had broken glass out of the windows and throwing glass at us.
“Q. Did any of these inmates physically attack the officers who were going in there to subdue the riot?
“A. Whenever we was getting them out of the cells some of them would; I saw, I don’t know who the inmates was (sic) and now I don’t recall the officers, but I did see two inmates trying to envelop an officer with a mattress. This inmate, Lincoln Heard, threw a knife. That is the reason he got shot; he threw a knife. Leaned out the window and threw a knife out, down the hallway.”

Dr. James B. Thomas testified that in the late afternoon or early evening on the date of the riot, he treated inmate John W. Boykin, the victim of the assault charged in the instant case. Dr. Thomas described the victim’s stab wounds which had collapsed his lungs. He testified that Boykin had a laceration over his left forehead that was sutured.

Inmate Jewell Thomas testified that during the riot George Dobbins came to his cell, accused him of being an informer and called for “five good brothers” to come into Thomas’ cell. He stated that the appellant, Lincoln Heard, and six other inmates stepped into his cell. They ordered him to get on his knees and when he refused, they ■started stabbing him. He suffered twenty-two stab wounds. He stated that he and. inmate John Boykin were drug down the hall to the lobby on a blanket for Warden Harding to see.

The victim, John W. Boykin, testified concerning the events during the riot. He stated that he was in his cell playing cards when he heard someone yell, “This is a revolution.” He said George Dobbins and some other inmates came down the hall saying that they were going to kill “all the house niggers, anybody that wasn’t participating.” He further testified:

“He went back up the hall and got Jewell Thomas and took him past my cell and in a few minutes later I heard Jewell holler ‘don’t stab me no more,’ and few minutes later they came back to my cell and George Dobbins said, ‘Nigger, is you ready to die?’ And then he hollered up front for Johnny to open the door. So the door opened, he stepped in and he turned around and said, ‘Give me four good revolutionary brothers. We are going to kill this nigger.’
* * * * * 4c
“ . . . So I saw Lincoln Heard and Bull Wilson then changing weapons. Bull Wilson gave Lincoln Heard a club and he gave Bull a pick. They entered into my cell. Lincoln Heard stepped up on the slab.
* * * * * *
“George Dobbins was the first one came in, then Oscar Johnson and Lincoln Heard and Bull Wilson. Anyway, I was standing up there talking to George Dobbins and he told me to get on my knees, I was going to die. I told him I wasn’t going to get on my knees. All of a sudden I looked up and saw the club coming down. Lincoln Heard hit me on the head with a club; I fell.
* * # # * * “They proceeded to stab me and George Dobbins said, ‘You all ain’t sticking that nigger deep enough. Stick him deeper.’ So I closed my eyes and shortly after that they stopped sticking me and left out of the cell. And George Dobbins and another guy came back to the cell and he told the guy to check my heart to see was I alive. So the guy told him, says, T can’t get to his heart.’ So George Dobbins said, ‘Well, he ain’t dead but he dieing (sic);’ said, ‘That is the way a house nigger suppose (sic) to die. Let him suffer.’ ”

Boykin was stabbed twenty-two times, but he lived to testify against his assailants, clearly identifying the appellant, Lincoln Heard, as a leading participant.

I

Appellant contends that his conviction should be reversed due to a systematic exclusion of blacks and women from the jury roll and venire from which the grand and petit juries were drawn. On the trial of Johnny Harris, arising out of the same prison riot, an almost identical motion was found to be insufficient to require the quashing of the indictment or reversal of the conviction. The same motion was filed during the trial of Oscar Lee Johnson with the same result and the same holding on appeal by this Court. Our decisions therein were based on Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759; Butler v. State, 285 Ala. 387, 232 So.2d 631; White v. State, 48 Ala.App. 111, 262 So.2d 313; and other cases cited in Harris and Johnson, supra. We reach the same result in the instant case.

II

Appellant contends that the testimony of Jewell Thomas should have been excluded as its prejudicial nature outweighed its probative value.

The testimony of Jewell Thomas was brief. No objection was made until after he had testified that Lincoln Heard and six other inmates entered his cell, threatening to kill him. The following sequence occurred:

“Q. What happened when these six people you named came to the cell?
“MR. OWENS: I object to any further testimony along this line; not tied up, too remote to this time which is involved here.
“THE COURT: Did he say the Defendant was present on this occasion?
“MR. ROYER: Yes, Sir.
“THE COURT: I overrule.”

There was no motion made to exclude the testimony of Jewell Thomas at the end of his testimony and no motion to exclude the State’s evidence was made at the close of the State’s case in chief.

Our holding on this point is identical with our holding this date on the same issue raised in Johnson v. State, supra.

It is a well-established principle that evidence of other or collateral crimes is not admissible as substantive evidence to establish the guilt of an accused of a particular crime. To this well-established rule, there are several equally well-established exceptions. Wharton’s Criminal Evidence, § 31, lists them as follows:

“These exceptions fall under the following general divisions: (1) Relevancy as part of res gestae. (2) Relevancy to prove identity of person or of crime. (3) Relevancy to prove scienter, or guilty knowledge. (4) Relevancy to prove intent. (5) Relevancy to show motive. (6) Relevancy to prove system. (7) Relevancy to prove malice. (8) Relevancy to rebut special defenses. (9) Relevancy in various particular crimes. It is recognized that in many instances the line of demarcation is not clear, but the discretion vested in the trial judge, intelligently and considerately exercised, will enable the prosecution fully to present the charge, on the one hand, and, on the other hand, to protect the accused and . secure to him the rights guaranteed to him by the Constitution and the laws.”

See Murphy v. State, 52 Ala.App. 490, 294 So.2d 457; Brasher v. State, 33 Ala.App. 13, 30 So.2d 26, cert. denied 249 Ala. 96, 30 So.2d 31.

The stabbing of Jewell Thomas, as well as the other acts of violence enumerated in the evidence, were a part of the whole or same occurrence and thus could be considered by the trial court as relevant as a part of the res gestae. Also see McElroy, The Law of Evidence in Alabama, Vol. 1, § 69.01(3), p. 167; Keith v. State, 253 Ala. 670, 46 So.2d 705; Grant v. State, 250 Ala. 164, 33 So.2d 466.

III

Appellant alleges that the trial court erred to a reversal in denying his requests for discovery.

The same allegation dealing with a similar motion was treated at length in our decision in Johnson v. State, supra. In our decision on the Oscar Johnson appeal, we found no error on the part of the trial judge in denying a similar motion for discovery. For the same reasons enunciated in Johnson, we arrive at the same conclusion in the instant case. We cited in Johnson in support of our decision inter alia: Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215; Moore v. Illinois, 408 U.S. 786, 92 S.Ct. 2562, 33 L.Ed.2d 706; Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104; Shuler v. Wainwright, 5. Cir. 491 F.2d 1213; Davis v. Heyd, 5 Cir. 479 F.2d 446; McCants v. State, 282 Ala. 397, 211 So.2d 877.

IV

Appellant’s final allegation of error is that the cumulative effect of the inflammatory remarks and tactics utilized by the State throughout the trial deprived appellant of due process.

We refused to reverse Oscar Johnson’s conviction on a similar allegation. In Johnson, comments on the part of the prosecution were made in a much more heated atmosphere that in the instant case. We have reviewed the matters complained of in the appellant’s brief in this regard, and find them totally without merit. Generally, improper conduct on the part of the prosecutor is not subject to review unless there is prompt, specific and appropriate objection by the opposing counsel, a ruling by the trial court, or a refusal of the court to rule on the objection. Anderson v. State, 209 Ala. 36, 95 So. 171; Espey v. State, 270 Ala. 669, 120 So.2d 904. We have often quoted our Supreme Court to the effect that a trial is a legal battle and not a parlor social affair. Arant v. State, 232 Ala. 275, 167 So.2d 540.

All of the grounds relied upon by the appellant for reversal have been considered in the light of the record, briefs and arguments of counsel, and we find that no reversible error has been shown. The record discloses that the case was fairly tried, that the judgment and sentence were supported by the evidence and the law. Counsel for appellant made a diligent effort both on trial and on appeal, however, the rulings of the trial court, challenged by appellant, did not constitute harmful error.

AFFIRMED.

TYSON, HARRIS and DeCARLO, JJ., concur.


source: Caselaw Access Project

author: BOOKOUT, Judge.

license: Public Domain

text:
    Sollie Lee LIPTROTH v. STATE.
    6 Div. 984.
    Court of Criminal Appeals of Alabama.
    June 1, 1976.
    Rehearing Denied June 29, 1976.

      William M. Dawson, Jr., Birmingham, for appellant.
    William J. Baxley, Atty. Gen., and Randolph P. Reaves, Asst. Atty. Gen., for the State.
   BOOKOUT, Judge.

Rape; sentence: forty years.

The appellant was convicted of the rape of a thirteen-year-old girl. The alleged rape occurred at approximately 10:30 P.M. on June 22, 1974. In addition to the prose-cutrix, Randy Wilson, age fifteen, and Kimberly Ann Lowe, age fourteen, were present when the incident occurred.

The evidence at trial established thát a black male entered the prosecutrix’s home on the night in question by the use of threats of force, including the brandishing of a long kitchen knife. The assailant forced the prosecutrix and her companions to accompany him into a bedroom.

While in the bedroom, the prosecutrix was forced to disrobe. The assailant then forced her to engage in sexual intercourse with him. Finally, she was forced to perform fellatio on the assailant.

At trial the appellant was identified as the assailant by the prosecutrix, and by Miss Lowe and Mr. Wilson. The appellant presents six arguments in which he calls for a reversal of the trial court’s decision.

I

The appellant contends that the jury selection process utilized in Jefferson County violates the Equal Protection Clause of the Fourteenth Amendment to the Constitution of the United States. Section 714, Vol. 14, Appendix, Code of Alabama 1940, Recompiled 1958, applies to counties attaining a population of 400,000 or more. The above statute provides for a “one for one” strike procedure. In counties with a population of less than 400,000, a defendant is allowed two strikes for eveiy one strike allowed the State. Jefferson County is the only county in Alabama which has attained a population of 400,000 or more.

We hold, as we have consistently held for the past forty years that § 714, Vol. 14, Appendix, Code of Alabama 1940, Recompiled 1958, does not violate the United States Constitution. Colston v. State, 57 Ala.App. 4, 325 So.2d 520 (1975), cert. denied, 295 Ala.-, 325 So.2d 531; Mallory v. State, 55 Ala.App. 82, 313 So.2d 203 (1975); Bryant and Williams v. State, 49 Ala.App. 359, 272 So.2d 286, cert. denied, 289 Ala. 740, 272 So.2d 297, cert. denied, 412 U.S. 922, 93 S.Ct. 2744, 37 L.Ed.2d 149 (1973); Junior v. State, 47 Ala.App. 518,257 So.2d 844, cert. denied, 288 Ala. 744, 257 So.2d 852 (1972); Dixon v. State, 27 Ala. App. 64, 167 So. 340, cert. denied, 232 Ala. 150, 167 So. 349 (1936).

II

The appellant contends that § 714, Vol. 14, Appendix, Code of Alabama 1940, Recompiled 1958, violates Article 4, § 106, of the Alabama Constitution which requires that all “local laws” be advertised. In Reynolds v. Collier, 204 Ala. 38, 39, 85 So. 465, 467 (1920), the test was given for distinguishing local laws from general laws as follows:

. . The effect of all of our decisions, in short, has been that where there is a substantial difference in population, and the classification is made in good faith, reasonably related to the purpose to be effected and to the difference in population which forms the basis thereof, and not merely arbitrary, it is a general law, although at the time it may be applicable to only one political subdivision of the state; but that if the classification bears no reasonable relation to the difference in population, upon which it rests, in view of the purpose to be effected by such legislation, and clearly shows it was merely fixed arbitrarily, guised as a general law, and, in fact, is a local law, it is then in plain violation of the Constitution and cannot be upheld.”

Dixon, supra, sets forth the rationale for the statute in question. It is obvious that some of the reasoning of Dixon is outdated. However, we hold as we held last year in Mallory, supra, that the basic factors of increased crime in the more populated areas of the country make the overall reasoning of Dixon still sound today. We do not find that the legislature has acted either unreasonably or arbitrarily in limiting the “one for one” strike system to counties with populations exceeding 400,000.

Ill

The appellant contends that the “one for one” strike procedure which applies only to Jefferson County is invalid as it violates the newly enacted Judicial Article. Section 139 of Article VI of the Alabama Constitution provides for a unified judicial system. We again hold as we held in Colston, supra, that a “unified judicial system” has reference only to the establishment of a system of appellate, circuit, district, probate, and municipal courts. It has no application to the procedures used to strike juries in the various counties.

IV

The appellant contends his conviction should be reversed due to the discriminatory removal of all blacks from the jury ve-nire. It is contended that the State’s pattern of use of its preemptory challenges in cases where the victim is white and the defendant is black violates the Equal Protection Clause of the United States Constitution. In the present case, there were twelve blacks on the trial venire. The State had thirteen strikes, twelve of which were used to eliminate the twelve blacks.

Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965), traces the purpose and history of the preemptory challenge. There it was held that the presumption in any particular case must be that the prosecutor used the State’s challenges to obtain a fair and impartial jury to try the case. Such a presumption is not overcome, and the prosecutor therefore subjected to examination, by mere allegations that in the case at hand all blacks were removed from the jury, or that they were removed because they were blacks. However, Swain, supra, did hold that proof that a state has not seen fit to leave a single black on any jury in any criminal case might support a reasonable inference that blacks were excluded from juries for reasons wholly unrelated to the outcome of a particular case on trial and that the preemptory system was being used to deny blacks the same right and opportunity to participate in the administration of justice as was enjoyed by the white population.

The appellant, at an evidentiary hearing after selection of the petit jury, called seven attorneys who professed to be familiar with criminal proceedings in Jefferson County. The attorneys testified that it was their experience that in all cases in which the victim was white and defendant was black that the State used its preemptory challenges to strike every black possible.

There was no evidence offered by the appellant to show the State’s disposition to strike blacks in cases where the victim was white and the defendant was white, or where the victim was black and the defendant was black, or where the victim was black and the defendant was white. We suspect that in the latter situation, the State would have a tendency to strike whites whereas the defense counsel would have a tendency to strike blacks.

The appellant has not made out a prima facie case of violation of the Equal Protection Clause. The burden appears to be a showing that a prosecutor in a county, in case after case, whatever the circumstances, whatever the crime, and whoever, the defendant or the victim may be, is responsible for the removal of blacks, with the result that no blacks ever serve on petit juries. Swain, supra.

V

The appellant contends the trial court erred in holding that the State met its burden of proof regarding each of the elements of rape. An essential element of rape is actual penetration. Title 14, § 396, Code of Alabama 1940.

A doctor who examined the prosecutrix a few hours after the alleged rape testified that there was no penetration past the hymen. The doctor .also testified that there were no signs that she had been sexually abused. It was, however, his opinion that a penetration of the vaginal area of up to two centimeters would have been possible without there being any evidence of penetration. This opinion was based in part upon the elastic quality of a hymenal ring.

The prosecutrix testified on the element of actual penetration as follows:

“Q. Did he put his private parts into yours?
“A. Not all the way.
“Q. All right. Now—
“THE COURT: What did she say? The . question was, ‘Did he put his private parts into yours?’
“What was the answer to that question?
“A. Partway.
“THE COURT: Partway?
“A. Yes, sir.
“Q. You said he didn’t get it in all the way, but partway.
“Is that what you are saying?
“A. Yes, sir.”

In Peeples v. State, 50 Ala.App. 626, 282 So.2d 65 (1973), the facts were substantially similar to those in the present case. In Peeples, supra, a doctor testified that the hymen was still intact although there was an abrasion adjacent to, but outside the vagina. The court held that the evidence was amply sufficient to establish penetration.

The test is whether there was an actual penetration and not whether there was full penetration. We hold, in the present case, that there was sufficient evidence to present a question of fact for the jury to the element of actual penetration.

VI

The appellant’s final contention is that the trial court erred in admitting into evidence the appellant’s cap and shirt. The cap and shirt were identified at trial by the prosecutrix and by Miss Lowe and Mr. Wilson as being similar to a cap and shirt worn by the assailant on the night of the rape.

The articles were seized at the appellant’s home without a search warrant although there was ample time to obtain a warrant. The appellant was incarcerated in the Birmingham City Jail at the time of the search. If the search was in violation of the Fourth Amendment to the United States Constitution then the cap and shirt should have been excluded from evidence. Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961).

The State contends that the search was made pursuant to the consent of the appellant’s wife, Beverly Ann Liptroth. The test as to the validity of third party consents is set forth in footnote 7 in United States v. Matlock, 415 U.S. 164, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974) as follows:

“. . . The authority which justifies the third party consent . . . rests rather on mutual use of the property by persons generally having joint access or control for most purposes, so that it is reasonable to recognize that any of the coinhabitants has the right to permit the inspection in his own right and that the others have assumed the risk that one of their number might permit the common area to be searched.”

From the record it is certain that Mrs. Liptroth had the authority to consent to the search. The remaining issue is whether Mrs. Liptroth’s consent was voluntary under the “totality of the circumstances” test as set forth in Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973).

The police officer who made the search testified that he asked Mrs. Liptroth’s consent to search the house. When she replied that he could make such a search, he asked if she would mind signing a consent form. Mrs. Liptroth signed the consent form, and the form was presented at trial.

Mrs. Liptroth testified that the officer told her she might as well consent to the search because he had a warrant in the car. The officer denied making such a statement. Mrs. Liptroth also testified that she signed the consent form after the search was completed but that she did not read the form nor did She know the contents of the form.

The trial court ruled that the evidence should not be excluded as he believed the police officer’s version of the facts surrounding the consent rather than the version given by Mrs. Liptroth. Where there is conflicting evidence as to whether or not a party has consented to a search, the trial court is in the better position to determine consent or lack thereof. Jones v. State, 49 Ala.App. 438, 272 So.2d 910 (1973); Payton v. State, 47 Ala.App. 347, 254 So.2d 351 (1971). Nothing contained in the record indicates that the trial court’s judgment in the present case was erroneous.

AFFIRMED.

All the Judges concur.


author: BLOODWORTH, Justice.

text:
    In re Sollie Lee LIPTROTH v. STATE. Ex parte Sollie Lee Liptroth.
    SC 1949.
    Supreme Court of Alabama.
    Aug. 6, 1976.
    W. M. Dawson, Jr., Birmingham, for petitioner.
    None for the State.
   BLOODWORTH, Justice.

Petition of Sollie Lee Liptroth for Certio-rari to the Court of Criminal Appeals to review and revise the judgment and decision of that Court in Liptroth v. State, 58 Ala.App.-, 335 So.2d 683.

WRIT DENIED.

HEFLIN, C. J., and FAULKNER, AL-MON and EMBRY, JJ., concur.


author: BRADLEY, Judge.

text:
    Carl DAVIS v. HARTFORD ACCIDENT AND INDEMNITY COMPANY, a corporation.
    Civ. 659.
    Court of Civil Appeals of Alabama.
    June 9, 1976.
    Rehearing Denied July 14, 1976.

      Richard O. Fant, Jr., Tuscaloosa, for appellant.
    Zeanah, Donald, Williams & Hust, Tuscaloosa, for appellee.
   BRADLEY, Judge.

A final judgment was rendered against the appellant, Carl Davis, by the trial court on May 1, 1975, in the amount of $9,250. He appeals from that decree.

Davis filed his brief in this court on March 2, 1976, and, on March 3, 1976 Hartford Accident and Indemnity Company, the appellee, filed here a motion to dismiss Davis’ appeal on the ground that he had completely failed to follow the Alabama Rules of Appellate Procedure in the preparation of his brief and on the further ground that Davis had failed to properly present for review any errors committed by the trial court.

Pursuant to Rule 28, ARAP, this court pointed out to Davis the deficiencies in his brief and he did attempt to rectify them. In all fairness to Hartford, however, we must say that Davis’ brief still does not conform to the desired level of brief writing expected of practitioners at this bar; however, since the judgment of the trial court is due to be affirmed for reasons that will follow, we will not further discuss the deficiencies of Davis’ brief and will deny Hartford’s motion to dismiss the appeal.

Rule 28(a)(3), ARAP, provides that the brief of appellant shall contain:

“A statement of the issues presented for review with principal authorities of law supporting each issue presented;”

Davis’ brief contains four issues that he asks this court to review, and they are:

“1. The defendant avers that there is no privity between the plaintiff and the defendant and that the complaint fails to state a cause of action or claim against the defendant from which relief can be granted.
“2. Defendant avers that the plaintiff’s complaint is vague, indefinite and uncertain and fails to state a claim or cause of action against the defendant for which relief can be granted.
“3. The complaint shows on its face that any cause of action against this defendant occurred between October 23, 1964, and May 8, 1965, a period of some eight or nine years ago past, thereby barring a recovery against the defendant due to the statute of limitations to the plaintiff on negligence counts for a period of one year and a period of six years on contractual or liquidated claims or for laches on a claim of unjust enrichment.
“4. Defendant avers that the plaintiff can in no way hold the defendant fully and completely responsible for the concurring negligence of the Bank of Moundville and its employees and the Pan American Life Insurance Company and its employees for all the alleged losses set out in the complaint, since said losses were the resúlt of the combined negligence of these parties and there is no way to determine which party is liable for what amount.”

At the outset, it is to be noted that none of these “issues” present for review a ruling of the trial court, nor do they contain citation of authority. Each issue is either a factual averment such as might be found in a defendant’s answer under the Alabama Rules of Civil Procedure, or else it is an abstract proposition of law which does not point to any error below.

Former practice, as evidenced by a long line of supreme court cases, Vol. 2A, Alabama Digest, Appeal & Error, Section 718, required assignments of error to be grounded on adverse rulings of the trial court in order to be reviewable on appeal. Although assignments of error have been, in effect, abolished, Rule 20, ARAP, the requirement that only adverse rulings of the trial court will be reviewed on appeal, has not been abolished. The Committee Comments to Rule 4, ARAP, state that matters, i. e., “issues presented for review” as provided in Rule 28, ARAP, raised on appeal must have been presented to the trial court at some stage of the proceedings therein and once ruled on by the trial court are preserved for review.

Hartford says in brief that because of the insufficiency of the “issues presented” in Davis’ brief, it cannot respond in an orderly and intelligent fashion to the points raised by him. We too are faced with the same-dilemma.

In a recent decision, Thoman Engineers, Inc. v. McDonald, 56 Ala.App. -, 328 So.2d 293, this court held that in the interest of reaching the merits, certain formal defects in the statement of issues will not prevent review if the true issues can be readily determined from the remainder of the brief or if the appellee suffers no prejudice. That is as liberal a construction of the ARAP as this court intends to make. To attempt an ascertainment of the actual issues presented by this appeal would require that we delve into the realm of speculation, for the remainder of the brief confuses the issues rather than clarifying them, and this would cause us to exceed the limits of review established in Thoman Engineers. This we do not intend to do. Where, as here, the statements present no reviewable issues based on rulings below and the remainder of the brief is not helpful in amplifying the issues, this court will not take upon itself the task of legal research and writing necessary to organize appellant’s contentions. It is incumbent on appellant to submit a brief containing clear and succinct issues based on rulings of the trial court. Wetzel v. Hobbs, 249 Ala. 434, 31 So.2d 639.

Since our review is not sufficiently invited to any ruling below, the judgment of the trial court is affirmed.

MOTION TO DISMISS OVERRULED; JUDGMENT AFFIRMED.

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


author: PER CURIAM.

text:
    In re Carl A. DAVIS v. HARTFORD ACCIDENT AND INDEMNITY CO., a corp. Ex parte Carl A. Davis.
    SC 1974.
    Supreme Court of Alabama.
    Aug. 6, 1976.
    Richard 0. Fant, Jr., Tuscaloosa, for peti tioner.
    None for respondent.
   PER CURIAM.

Petition of Carl A. Davis for Certiorari to the Court of Civil Appeals to review and revise the judgment and decision of that Court in Davis v. Hartford Accident and Indemnity Co., a corp., 58 Ala.App. -, 335 So.2d 688.

WRIT DENIED.

HEFLIN, C. J., and BL00DW0RTH, FAULKNER, ALMON and EMBRY, JJ., concur.


text:
    STATE of Louisiana v. Billy J. LANDRY.
    No. 58351.
    Supreme Court of Louisiana.
    July 22, 1976.
   In re: State of Louisiana through District Attorney, J. Nathan Stansbury applying for writs of certiorari, prohibition and mandamus.

Writ granted. Case assigned for argument Saturday, July 24, 1976 at 10:00 a. m.


text:
    STATE of Louisiana v. Mack Charles GAY and Michael O’Shea Cook.
    No. 58360.
    Supreme Court of Louisiana.
    July 26, 1976.
   In re: Michael O’Shea Cook applying for . writ of certiorari, prohibition and mandamus and for motion to stay proceedings.

Writ denied. Relator has an adequate remedy by appeal in the event of conviction.


text:
    STATE of Louisiana v. Gary NUNNELLEE.
    No. 58366.
    Supreme Court of Louisiana.
    July 27, 1976.
   In re: State of Louisiana, applying for writs of certiorari, mandamus and prohibition.

Writ refused. There is no palpable abuse of discretion in the trial court’s ruling.


text:
    In re the GRAND JURY, Through the DISTRICT ATTORNEY OF the FOURTEENTH JUDICIAL DISTRICT of Louisiana applying for a Subpoena Duces Tecum IN CONNECTION WITH the CRIMINAL INVESTIGATION of Sheriff Henry A. REID, Jr.
    No. 58367.
    Supreme Court of Louisiana.
    July 28, 1976.
   In re: Henry A. Reid, Jr., applying for supervisory relief.

Writ denied. The showing made does not warrant the exercise of this Court’s supervisory jurisdiction.


text:
    STATE of Louisiana v. Sherroll L. BUSH.
    No. 58376.
    Supreme Court of Louisiana.
    July 29, 1976.
   In re: Sherroll L. Bush applying for writs of certiorari, mandamus and stay order.

Writ granted. It is ordered that bail pending appeal be reduced to $5000.00, and the original bond in that sum is reinstated.


text:
    STATE of Louisiana v. Ray Charles SANFORD.
    No. 58329.
    Supreme Court of Louisiana.
    Aug. 2, 1976.
   In re: Ray Charles Sanford applying for supervisory writs.

Writ denied. Ruling of the trial judge overruling objection of defendant to the holding of an extradition hearing is correct.


author: MARVIN, Judge.

text:
    In re Adoption of William Clifton BAILEY, III, Plaintiff-Appellee, v. William Clifton BAILEY, Jr., Defendant-Appellant.
    No. 12959.
    Court of Appeal of Louisiana, Second Circuit.
    July 7, 1976.
    En Banc. Rehearing Denied Aug. 3, 1976.
    Gamm, Greenburg & Kaplan by Michael W. Beam, Shreveport, for defendant-appellant.
    James E. Bookter, Bossier City, for plaintiff-appellee.
    Before BOLIN, PRICE and MARVIN, JJ-
   MARVIN, Judge.

Mr. and Mrs. Bailey were divorced on September 6, 1973, and she was awarded custody of her son, then two and one-half years old. Mr. Bailey was ordered to pay child support. A few days after the divorce, Mrs. Bailey married her present husband, Donald Leggett, who is the petitioner-appellee in this adoption proceeding.

Late in 1975, Donald Leggett filed these proceedings to adopt his stepson, alleging that Mr. Bailey had not paid anything for the support of the child for more than one year prior to the institution of the adoption proceeding and that Mr. Bailey’s consent to the adoption was not necessary under R.S. 9:422.1. See In Re: Salmon, 318 So. 2d 897 (La.App.2d Cir. 1975).

Mr. Bailey contended below and contends here, as appellant from the lower court’s decree permitting adoption, that he was “justified” in not making support payments because his ex-wife denied his visitation privileges and “deliberately” made it difficult for him to learn the whereabouts of his ex-wife and child. Mr. Bailey admits that his last payment of child support was about March, 1973, (“right after the rule to show cause [for child support] . ”). As in Salmon, he attempted to pay or tender all past due child support after the petition for adoption was served on him and contended he had maintained hospitalization insurance for the child.

The maternal, and paternal grandparents for a period of two years prior to the adoption proceeding lived in Bossier City. After the divorce decree of September 6, 1973, the mother and the child have continuously lived in Bossier City. Mr. Bailey’s mother knew where Mrs. Leggett and the child were living in December, 1974. The lower court said:

“[Mr. Bailey’s] testimony was that he could not locate the mother and the child. This the court finds difficult to believe in view of the fact that his parents were aware of the child’s whereabouts. The child’s mother’s sister’s whereabouts was known to the father. He made no inquiry of that individual by his own admission. He had an attorney, he admitted that, he made no inquiry, I believe his testimony was, of that attorney, [sic] He had an attorney and filed no pleadings in this court or any other court for a specific visitation, contempt or otherwise, to enforce visitation. And this court feels he comes within the statute, as harsh as it is, which prohibits this [sic] contesting this adoption. For that reason the court would rule that his opposition to the adoption is overruled

In Re Ackenhausen, 244 La. 730, 154 So.2d 380 (1963) tempered R.S. 9:422.1 by holding that the father’s failure to comply with a support order may sometimes be justified because of reasons beyond his control. The issue of justification, however, has to depend on the facts peculiar to each case. See Ackenhausen at 154 So.2d 383.

Tender of past due support after the adoption proceeding is filed is ineffective for the purposes of negating R.S. 9:422.1. See Salmon, 318 So.2d 901. We there recognized the “extreme consequences” of applying this statute, but held that we “must conclude that in accord with R.S. 9:422.1 and the controlling jurisprudence, there is no manifest error in the judgment . . . appealed from.” That language is appropriate to the circumstances here.

At appellant’s cost, judgment is

AFFIRMED.


author: BOLIN, Judge.

text:
    Charles LAYTON, Plaintiff-Appellant, v. S. H. BOLINGER COMPANY et al., Defendants-Appellees.
    No. 12960.
    Court of Appeal of Louisiana, Second Circuit.
    July 7, 1976.
    En Banc. Rehearing Denied Aug. 3, 1976.

      S. P. Davis, Shreveport, for plaintiff-appellant.
    McConnell & McConnell by Charles E. McConnell, Springhill, for defendants-ap-pellees.
    Before BOLIN, PRICE and MARVIN, JJ.
   BOLIN, Judge.

Plaintiff sued defendants for workmen’s compensation benefits, penalties and attorney fees due him for injuries he allegedly received while employed as a log cutter for S. H. Bolinger Company. Anthony Forest Products Company concedes that if there is liability Anthony has agreed to pay all compensation claims incurred by Bolinger. Plaintiff claims he was rendered totally and permanently disabled as result of accidental injuries received during the course and scope of his employment. For written reasons the trial court rejected plaintiff’s demands and he appeals. We affirm.

In his original petition plaintiff alleged the accident forming the basis of his claim occurred on September 18, 1973, when a log struck him in the back. Suit was filed on September 17, 1975. Defendants filed a plea of one year prescription and an answer. On the same date defendants filed the plea of prescription and answer plaintiff filed an amended petition alleging additional injuries to his back caused by his falling or stumbling in the woods on or about October 1, 1974 and June 1, 1975. The plea of prescription was referred to the merits and the case went to trial.

Plaintiff contended in the lower court and urges on appeal that the initial accident on September 18, 1973, was causally related to a disc operation on July 29, 1975, and his total disability existing at the time of trial. Plaintiff alternatively contends the disability resulting from the original accident on September 18, 1973 did not manifest itself more than one year prior to the date this suit was filed and therefore prescription had not accrued on the claim. Plaintiff contends, in the further alternative, that the alleged accidents of October 1974 and June 1975 aggravated his pre-ex-isting injury, resulting in his total disability.

We are in accord with the factual findings of the trial judge. It was stipulated plaintiff received an on-the-job injury on September 18, 1973, for which he was paid approximately $135.00 in compensation benefits. Plaintiff testified he performed all the duties as a log cutter from the date of the accident until June 1975, but that he worked in almost constant pain following the September 1973 accident. During the first week of June 1975 plaintiff failed to report for work and his employer later learned that he had entered a hospital at Springhill.

The medical evidence consists of a copy of a letter dated October 5, 1973 from Dr. D. F. Overdyke, Jr., orthopedic surgeon of Shreveport, and five letter reports of Dr. Don H. Burt, orthopedic surgeon of Shreveport, dated June 25, July 9, July 13, August 5, and September 15, 1975.

Dr. Overdyke diagnosed plaintiff’s condition resulting from the 1973 accident as , being an injury to his right hip. Plaintiff was administered drugs for the relief of pain and the doctor suggested he return for further examination if he could not perform his duties within approximately three weeks. There is no additional report relating to this injury.

All of the reports of Dr. Burt relate to possible nerve root irritation. In his report of June 25, 1975, Dr. Burt said the patient gave a history of having injured his low back and hip while working in 1973. After performing a myelogram Dr. Burt performed surgery on plaintiff for a herniated disc. None of the medical reports of Dr. Burt state that it was possible or probable that the herniated disc resulted from plaintiff’s injury in 1973.

In workmen’s compensation cases, as in all other civil cases, plaintiff bears the burden of proving his claim. Although the rules of evidence should be liberally construed so as to afford broad coverage to an employee receiving an on-the-job accident, the courts may not indulge in pure speculation in order to accomplish this purpose. Guillory v. New Amsterdam Casualty Co., 244 La. 225, 152 So.2d 1 (1963); King v. Employers Mutual of Wausau, 220 So.2d 201 (La.App.3d Cir. 1969).

In his reasons for judgment the trial judge, after finding the 1973 accident did not cause the disability, discussed the alternative defenses. He found plaintiff failed to prove the 1974 and 1975 accidents. He also found that, if it be assumed the 1973 accident caused the disability, the plea of prescription of one year should be sustained because the injury had manifested itself for more than one year prior to the suit being filed on September 17, 1975.

From our careful examination of the entire record in this case we find no evidence that the 1973 accident caused the herniated disc and the resulting disability to plaintiff.

This is not a case in which the original accident in 1973 was followed so closely in point of time by the disability complained of as to give rise to the presumption there had been no intervening cause for the disability. There is an absence of medical evidence that the 1973 injury to plaintiff’s hip would have resulted, either through the passage of time or in the ordinary course of events, in a herniated disc for which plaintiff underwent the operation in July 1975. The record is devoid of any evidence, except plaintiff's uncorroborated statements that he worked in pain, that causally relates his present disability to the 1973 accident.

Testimony regarding plaintiff’s alleged injuries in October of 1974 and in May or June of 1975 came entirely from plaintiff and he could not say on what exact date or at what place either accident occurred. He merely stated that he had stepped in a stump hole and reinjured himself on those occasions. He testified that, although he did not notify his employer of the above accidents he did tell his fellow employees, Willie Dupuy and Rufus Green, about them.

Both Dupuy and Green said they had no doubt seen plaintiff fall in stump holes in the woods, because it was a common occurrence for all who worked in the woods cutting trees, but that plaintiff had not at any time complained to either of them about any accidental injury except the one in 1973. The report of Dr. Burt, who operated on plaintiff’s back on July 29, 1975, makes no mention of a history of any accident other than the one in 1973. Plaintiff admitted he did not tell any doctor about stumbling or falling into a stump hole in 1974 and 1975. We find plaintiff has failed to sustain the burden of proving the 1974 and 1975 accidents.

Having found the 1973 accident was not causally related to plaintiff’s disability and that plaintiff failed to prove the 1974 and 1975 accidents, we pretermit a ruling on the plea of prescription.

The judgment of the lower court is affirmed at appellant’s cost.


text:
    Leroy ANDREWS, Plaintiff-Appellee, v. SPEARSVILLE TIMBER CO., INC., et al., Defendant-Third-Party Plaintiff-Appellee, Willie L. ANDREWS, Third-Party Defendant-Appellant.
    No. 12958.
    Court of Appeal of Louisiana, Second Circuit.
    July 7, 1976.
    En Banc. Rehearing Denied Aug. 3, 1976.
    Kidd, Katz & Strickler by Paul H. Kidd, Monroe, George M. Strickler, Jr., New Orleans, for third party defendant-appellant and plaintiff-appellee.
    Rabun & Post by Armand F. Rabun, Farmerville, for defendant-third party plaintiff-appellee.
    Before BOLIN, PRICE and MARVIN, JJ-
   MARVIN, Judge.

Defendant Spearsville contracted with Willie L. Andrews to cut and haul timber to its woodyard. Spearsville, which was self-insured, agreed with Willie L. Andrews to pay workmen’s compensation benefits to his employees who were injured and suffered disability under the law.

On June 22, 1970, Leroy Andrews, a son and employee of Willie L. Andrews, sustained such a disabling injury. Spearsville paid compensation and medical benefits as the law required through March 19, 1971, but discontinued payment when Leroy Andrews returned to work for a brief time during his convalescence.

Leroy Andrews brought a workmen’s compensation suit against Spearsville. Spearsville brought a third-party demand for indemnification against Willie L. Andrews. The lower court found Leroy Andrews entitled to workmen’s compensation benefits and rendered judgment against Spearsville on the main demand. On the third-party demand, Spearsville was granted judgment for indemnification of its liability against Willie L. Andrews as its contractor and the immediate employer of Leroy Andrews under R.S. 23:1061. Willie L. Andrews appeals. We affirm.

Appellant relies on Stevens v. Mitchell, 234 La. 977, 102 So.2d 237 (1958) and Carpenter v. Madden, 90 So.2d 508 (La.App.2d Cir. 1956). In those cases the principal withheld or collected from the contractor funds for the express purpose of paying premiums and acquiring workmen’s compensation coverage on the employees of the contractor. Here, the agreement was nothing more than Spearsville’s recognition of its statutory liability under R.S. 23 :- 1061 to the employees of Willie L. Andrews. Spearsville told Andrews it did not have workmen’s compensation insurance and that it “handled” compensation and medical benefits itself. Andrews admitted that he did not have “it understood” that Spearsville was going to “deduct money” for workmen’s compensation coverage. The cases relied on by appellant are factually inapposite.

In Jones v. Tupelo Lbr. Co. Inc. et al., 257 La. 869, 244 So.2d 815 (1971), the court said the purpose of the principal-contractor indemnity statutes was to expand the liability to the injured employee and to prevent evasion of the workmen’s compensation law by a principal interposing an impecunious contractor between himself and a disabled employee of the contractor. The court said:

“The indemnification clauses, however, have the effect of finally imposing the loss of the principal or principal contractor upon the claimant’s immediate employer.” ibid, 244 So.2d 817 (footnote omitted).

R.S. 23:1061 and 1063 are unambiguous in their terms, purpose and effect. In the absence of facts such as in Stevens and Carpenter holding the principal estopped to claim indemnity from the immediate employer, the statutes shall be applied as written. We hold the principal here entitled to indemnity.

At appellant’s cost, judgment is

AFFIRMED.

      . “Where any person (in this section referred to as principal) undertakes to execute any work, which is a part of his trade, business, or occupation or which he had contracted to perform, and contracts with any person (in this section referred to as contractor) for the execution by or under the contractor of the whole or any part of the work undertaken by the principal, the principal shall be liable to pay to any employee employed in the execution of the work or to his dependent, any compensation under this Chapter which he would have been liable to pay if the employee had been immediately employed by him; and where compensation is claimed from, or proceedings are taken against, the principal, then, in the application of this Chapter reference to the principal shall be substituted for reference to the employer, except that the amount of compensation shall be calculated with reference to the earnings of the employee under the employer by whom he is immediately employed. “Where the principal is liable to pay compensation under this Section, he shall be entitled to indemnity from any person who independently of this Section would have been liable to pay compensation to the employee or his dependent, and shall have a cause of action therefor.” (Emphasis supplied)
      R.S. 23:1063 also provides for indemnity:
      “A principal contractor, when sued by an employee of a subcontractor or his dependent, may call that contractor, or any intermediate contractor or contractors, as a co-defendant, and the principal contractor shall be entitled to indemnity from his subcontractor for compensation payments paid by the principal contractor on account of an accidental injury to the employee of the subcontractor.”


author: PRICE, Judge.

text:
    STATE of Louisiana, DEPARTMENT OF HIGHWAYS, Plaintiff-Appellant, v. Louie C. BOSS (Louis W. Miller et al., substituted as Defendants), Defendants-Appellees.
    No. 12957.
    Court of Appeal of Louisiana, Second Circuit.
    July 7, 1976.
    En Banc. Rehearing Denied Aug. 3, 1976.

      William W. Irwin, Jr., Jerry F. Davis, Robert L. LeDoux, Bernard L. Malone, Jr., Johnie E. Branch, Jr., Baton Rouge, Jack C. Frugé, Sr., Ville Platte, for plaintiff-appellant.
    Emmons, Henry & Reeves by Joseph A. Reeves, Jr., Jonesboro, for defendants-ap-pellees.
    Before BOLIN, PRICE and MARVIN, JJ.
   PRICE, Judge.

The State of Louisiana through the Department of Highways has appealed from the judgment increasing the amount of just compensation due the defendant landowners in this expropriation proceeding. The State deposited the sum of $2,851 as the estimated compensation due the landowners because of the expropriation. The trial court increased this amount to the sum of $28,017.61, and awarded defendants $7,087.-36 for expert witness fees.

The original defendant, Louie C. Boss, died subsequent to the signing of the order of expropriation and his testamentary beneficiaries, Walton W. Reed and Louis W. Miller, were substituted as defendants.

The subject tract of land is in the northwest corner of the intersection of U. S. Highway 167 and First Street in the unincorporated area between Jonesboro and Hodge in Jackson Parish. The Department of Highways adopted a plan of improvements for U. S. 167 which required the expropriation of a triangular shaped area in the southeast corner of defendants’ property to provide for a sight flare at the intersection.

According to the Department of Highways project survey map attached to its petition for expropriation, the defendants’ tract prior to the taking had a frontage of 101.3 feet along U. S. 167 and a depth of 141.33 feet along First Street. The northerly lot line running parallel to First Street has a depth of 135.27 feet. The portion of the property expropriated, as shown by the petition and attached exhibits, is triangular in shape with a frontage of 43.10 feet along U. S. 167, and 43.17 feet along First Street. The area taken comprises 926.8 square feet.

The issues in dispute on trial and appeal are:

1) The amount of land being taken by the Department of Highways.
2) The value of the land taken.
3) The amount of severance damages sustained by the remainder of the property because of the taking.
4) Whether the defendants are entitled to be awarded attorney fees.
5) The amount which should be awarded as expert witness fees to defendants.

AMOUNT OF LAND EXPROPRIATED

On trial of the merits, defendants sought to prove the Department of Highways appropriated 2,828.84 square feet of defendants’ property in excess of the 926.8 square feet provided in the order of expropriation. Defendants contend the Department of Highways has no recorded right-of-way to afford the Department a basis on which to claim a right of servitude beyond the paved edge of the highway. Therefore, they contend they should be compensated for the area lying between the western edge of the highway as originally paved, and the east line of their tract which is described as Lot 1, and the east 12.5 feet of the J. T. Stevenson addition to the village of Hodge. The trial court provided defendants compensation for 822 square feet in excess of the area shown in the order of expropriation.

The Department of Highways contends that the trial court was in error in allowing defendants this amount on the basis of the pleadings and evidence before it.

There were no responsive or affirmative pleadings concerning this question filed in the trial court by defendants. The issue was first brought out during the cross-examination of the project engineer for the Department of Highways. No independent survey or other evidence was offered by defendants. Under this procedural posture, and on the limited evidence in the record, the issue of appropriation of the disputed area cannot properly be determined. This question can be resolved in an appropriate proceeding. See State, Department of Highways v. Kilpatrick, 327 So.2d 452 (La.App. 2nd Cir. 1976).

Defendants are entitled only to be compensated for the 926.8 square feet taken by the expropriation judgment signed by the court.

VALUE OF LAND TAKEN

The trial court awarded the sum of $2.00 per square foot for the land taken. The Department of Highways contends this amount is excessive to the extent that it constitutes an abuse of the discretion vested in the trial court in determining the amount of just compensation to which a landowner is entitled in an expropriation proceeding. The Department of Highways argues that the trial court accepted the estimates of defendants’ appraisers as controlling although the comparables used by them to determine market value required a much greater adjustment to relate them to the subject property than the comparable sales relied on by the Department of Highways’ appraisers. Also, plaintiff contends the amount awarded is out of line with other cases in the same vicinity which have been reviewed by this court in which substantially lesser amounts were allowed for the value of property taken.

Each case must necessarily be decided on its own particular circumstances, and the awards may vary based on the evidence presented in the record for review.

The defendants’ expert appraisers, Hab Monsour, O. L. Jordan, and H. L. Bass, found the land to have a market value of between $2.00 and $2.10 per square foot. Plaintiff’s appraisers, L. J. Roy and Dan Carlock, estimated the value of the land to be $1.20 per square foot. All agreed the highest and best use was for commercial purposes as now being used for a service station. The value of the improvements was stipulated to be $31,000.

Defendants’ appraisers used the recognized method of appraisal of the property by referring to other comparable sales in the vicinity, and gave proper weight to the advantages accruing to defendants property, including the location on a corner lot in the center of the commercial area between Jonesboro and Hodge. This court finds no abuse of the discretion accorded the trial judge in determining the market value of the property to be $2.00 per square foot.

SEVERANCE DAMAGES

The trial judge awarded defendants the sum of $23,120.96 for severance damages caused to their remaining property by the taking. The Department of Highways does not dispute the fact that some damage has occurred because of the taking, but contends the amount awarded was excessive, and the method used by the trial judge in calculating the damage was improper.

Although the land taken was not substantial in relation to defendants’ total property area, all experts agreed that the result of the construction when completed would impair the present use as a service station.

The plans of the Department of Highways call for a raised barrier curb around the perimeter of the sight flare which will have the effect of reducing defendants’ frontage on U. S. 167 from 101 feet to 57.93 feet. Access into the station from U. S. 167 will be restricted to one driveway near the northerly boundary of the property. Because of the position of the building as now situated, the barrier curb to be constructed in the curve of the intersection of First Street will prevent normal ingress and egress from this street into the front of the station.

On the basis of this evidence, the trial judge awarded severance damages of $23,-120.96. He applied a 40 per cent depreciation in market value to the remaining land and the stipulated value of improvements. Plaintiff contends this is not in accord with the testimony of the expert appraisers that only the improvements were damaged by the taking.

Defendants’ appraisers, Monsour, Jordan, and Bass, were of the opinion that the damage sustained was limited to the improvements only. Plaintiff is correct in its position in this regard.

Plaintiff’s appraisers, Carlock and Roy, calculated the cost of relocation of pump islands and added to this amount a depreciation on remaining improvements of 20 to 25 per cent to arrive at estimated severance damage of $7,027 and $8,073 respectively.

Defendants’ experts estimated the improvements to have been damaged from 50 to 75 per cent because of the taking and the impairment of access resulting from it.

We are of the opinion the preponderance of the evidence shows the building and related improvements have been damaged to the extent of 50 per cent. The stipulated value of total improvements is $31,000. From this should be subtracted the value of the concrete taken of $612, leaving a value of improvements damaged of $30,-388. Therefore, the severance damage sustained was $15,194.

ATTORNEY FEES

In awarding defendants’ attorney fees of $5,000, the trial judge relied on the provisions of Article 1, § 4 of the Louisiana Constitution of 1974 as authority for this award. By its own provisions, Article 14, § 35, the 1974 Constitution did not go into effect until January 1, 1975, and unless specifically provided for, its provisions have no retroactive effect on actions filed prior to its effective date. This action was filed on June 6, 1974, and is unaffected by the 1974 Constitution. The present provisions of LSA-R.S. 48:453(E), allowing attorney fees under prescribed circumstances in an expropriation proceeding, was not in effect at the time of the filing of this suit.

Therefore, no constitutional or statutory authority exists for allowing attorney fees in the time frame of this litigation even though it may appear the initial deposit made by the Department of Highways was grossly inadequate, and caused the landowners the necessity of employing counsel.

The subsequent amendment of pleadings by the defendants, and the trial of the matter after January 1, 1975, does not bring this issue under the provisions of the 1974 Constitution or LSA-R.S. 48:-453(E). The supplemental pleadings filed are related to or connected with the original action filed by plaintiff, and under the provisions of Louisiana C.C.P. Articles 1153 and 1155, a new independent cause of action has not been projected which would accord defendants the benefits of the Constitution and laws taking effect on January 1, 1975.

EXPERT WITNESS FEES

The trial court awarded the following expert witness fees in this matter:

H. L. Bass $1,800.00
O. L. Jordan 1,975.00
Hab Monsour 1,925.00
Lavelle Nunn 287.36
Art Caigle 550.00
Thomas D. Day 550.00

Plaintiff contends the amounts awarded by the trial judge, which are coincidental with the bill for services rendered the landowners, are excessive and should be reduced. This proceeding is one of a series of expropriation proceedings that have been reviewed recently by this court in the same area involving substantially the same witnesses, and in similar circumstances.

The instant case is very analogous to the issues involved in State, Department of Highways v. Oilmark, 324 So.2d 606 (La.App. 2nd Cir. 1975), involving a service station site on a corner lot in the immediate area with subject property. In Oilmark, we discussed the factors to be given consideration in fixing the fees of expert witnesses for the landowner in an expropriation proceeding, and found the amounts awarded by the trial court excessive. See also Department of Highways v. Kilpatrick, supra; Department of Highways v. McDonald, 329 So.2d 898 (La.App. 2nd Cir. 1976).

Defendants contend that the amounts awarded are justified as the Department of Highways’ experts, under cross-examination, testified they would have charged a landowner substantially what the defendants’ experts charged for performing the same services. This is a very persuasive argument in favor of the reasonableness of the charges. However, we do not feel this evidence is of itself sufficient to overcome the duty of the appellate court to approve fees which are in line with prior cases involving similar circumstances and commensurate with the amount of just compensation awarded.

The fees awarded are excessive and are reduced to the following amounts:

H. L. Bass $900.00
O. L. Jordan 900.00
Hab Monsour 900.00
Art Caigle 400.00
Thomas D. Day 400.00

The fee for the photographer, Lavelle Nunn, is disallowed for the reasons given in Department of Highways v. Oil-mark, supra.

RECAPITULATION

The amount of just compensation to which the defendants are entitled is as follows :

926.80 square feet at $2.00 per square foot $ 1,853.60
Value of concrete taken 612.00
Severance damages 15,194.00
Total of property taken and severance damages $17,659.60

The judgment appealed from is therefore amended to reduce the total amount awarded as just compensation to the sum of $17,-659.60, and the expert witness fees are reduced to the amounts set forth above.

Amended, and as amended, affirmed.


text:
    Samuel Overton DENTON, Plaintiff-Appellant, v. Eula Marie Denton MESHELL, Defendant-Appellee.
    No. 12956.
    Court of Appeal of Louisiana, Second Circuit.
    July 7, 1976.
    En Banc. Rehearing Denied Aug. 3, 1976.
    Wilson & Veatch by Thomas A. Wilson, Shreveport, for plaintiff-appellant.
    Nesib Nader, Shreveport, for defendant-appellee.
    Before HALL, MARVIN and JONES, JJ-
   MARVIN, Judge.

The issue on the father’s appeal is whether the lower court erred in denying a change of custody of a five-year-old son when the mother of the child admittedly is living in open adultery. We reverse the lower court and award custody to the father.

These parties were married for less than three years and were divorced in 1973, at which time custody was awarded to the mother. Before this marriage, the defendant-mother was married to a Donald Mesh-ell. After the 1973 divorce, she married for the second time and lived with Donald Meshell for several months. She has not lived with Meshell, her present husband, for several months prior to plaintiff’s suit, but admittedly has been living in open adultery with one John Streetman in a two-bedroom house trailer. Also living in the house trailer are the five-year-old Den-ton child and four other minor children born of the Meshell union.

Mrs. Meshell also admitted during the trial that she had lived in open adultery with another man before she moved in with Streetman. Donald Meshell testified in this case. He has pending against this defendant a suit for divorce and for custody of his children on some of the same circumstances at issue here.

The plaintiff-father, Denton, resides in an apartment with his mother and has sometimes had his son visit there since custody was awarded to his ex-wife. In 1975, the child was with his father for one con-tinous period of five months. In the past, the father has had problems with alcohol and has been convicted of D.W.I. on three occasions. The record indicates the father’s alcoholic tendencies to have been under control for about three years and that the child would be well cared for and superintended by the father and paternal grandmother.

Mrs. Meshell’s contention that she intends to marry Streetman does not legally absolve her of the continuing adulterous relationship and its natural and probable consequences upon hqr five-year-old son.

In Parks v. Parks, 331 So.2d 505 (La.App.2d Cir. 1976), on very similar facts, we changed the custody of a nine-year-old son to the father from the mother who was living in open adultery. There we said:

“Unlike Fulco v. Fulco, 259 La. 1122, 254 So.2d 603 (1971), this mother had not ceased living in concubinage and had not moved with the child into a more conventional home at the time change of custody was sought and awarded • • • [W]e recognize our duty to promote and protect the moral welfare of the child ...”

Fulco recognizes as a rebuttable presumption the so-called maternal preference rule ,and that the trial court’s determination of custody is entitled to great weight. See also Caraway v. Caraway, 321 So.2d 405 (La.App.2d Cir. 1975), and Welch v. Welch, 307 So.2d 737 (La.App.2d Cir. 1975). In this case, however, the father has met the heavy burden of proof required of him to successfully rebut the presumption. Mrs. Meshell’s continued open and illicit relationship renders her morally unfit to retain custody and we must conclude the trial court erred in determining otherwise.

The trial court said:

“There is an absence in this trial whether or not there is any detriment to this child. Apparently his health is all right. As far as this record goes, the child is getting along all right. I am aware that the conditions out there are far from ideal, in fact of the matter, it is close to being bad, but this child is very, very young. A five year old child not even old enough to go to kindergarten, could not get the impact that would ordinarily be made on children of a different age. Now if it had [been] these other children — older children out there — had their situation [been] before me, it could very well be different. The law prefers the mother for young children and you have to make your decision as to the conditions that existed at the very moment. I don’t believe it is enough at the very moment effecting this child of tender years to remove it from the mother. Now, if it were those other children it might be different. Petition denied.”

The trial court’s conclusions are contrary to our holding in Tuggle v. Tuggle, 235 So.2d 166 (La.App.2d Cir. 1970), where the mother was living in similar circumstances as here. We hold here, as we did there, that:

“Such utter disregard for the rules of propriety can but have an ill effect on the children involved [ages 12, 11, 8 and 6 years].” ibid., at page 168.

The judgment below is reversed and accordingly,

IT IS ORDERED that permanent custody of Samuel O. Denton, Jr., be awarded unto his father, Samuel O. Denton, Sr., subject to the right of the child’s mother, Eula Marie Meshell, to visit with the child and have the child visit with her at 'reasonable times, places and intervals. Costs of this appeal and costs below are assessed against appellee, Mrs. Eula Marie Meshell.

Reversed and rendered.


author: HALL, Judge.

text:
    Bonnie M. HATCH, Plaintiff-Appellee, v. Urzula Cloud HATCH, Defendant-Appellant.
    No. 12954.
    Court of Appeal of Louisiana, Second Circuit.
    July 7, 1976.
    En Banc. Rehearing Denied Aug. 3, 1976.
    Writ Refused Oct. 22, 1976.
    Whitten and Blake by Leon H. Whitten, and Baker, Culpepper & Brunson, by Bobby L. Culpepper, Jonesboro, for appellant.
    Martin S.- Sanders, Jr., Winnfield, for appellee.
    Before HALL, MARVIN and JONES, JJ-
   HALL, Judge.

The plaintiff-husband, Bonnie M. Hatch, filed suit against the defendant-wife, Ur-zula Cloud Hatch, seeking a separation from bed and board on the grounds of abandonment, alleging that defendant abandoned the matrimonial domicile on January 29, 1974. Defendant answered generally denying the allegations of plaintiff’s petition and by reconventional demand sought a separation from bed and board on the grounds of cruel treatment or abandonment and alimony pendente lite in the amount of $350 per month. The suit went to trial in November, 1975, about fifteen months after suit was originally filed. Pursuant to written reasons for judgment, the district court rendered judgment awarding the plaintiff-husband a separation on the grounds of abandonment and awarding the defendant-wife alimony pen-dente lite in the sum of $150 per month beginning December 1, 1975.

The defendant-wife appealed, specifying the following errors:

(1) The Honorable District Court erred as a matter of law in granting judgment of separation to husband contrary to the law and evidence showing wife should have been entitled to judgment of separation;
(2) The Honorable District Court erred in setting the alimony pendente lite contrary to established law and without regard to the “means” of the husband and needs of the wife; and
(3) The Honorable District Court erred in refusing to make alimony payments effective on the date of the filing of the suit herein.

Plaintiff and defendant were married in 1946 and their three children are grown. In January, 1974, they were living together in a house which they rented after their home burned down. On January 29, 1974, the defendant-wife moved from the matrimonial domicile and began living with her mother in an apartment in a government project which defendant rented. The parties have not lived together since that time.

The evidence discloses that the marriage had deteriorated badly and that the parties were unhappy with each other. Exactly what was said by one party to the other leading up to defendant moving out of their home is in dispute. Plaintiff testified it was his wife’s decision to leave and that she could have come back within a reasonable time but she did not do so and he did not want her back at the time of the trial. The wife testified, with some supporting testimony by others, that the husband wanted her to leave, saying something like the house was not big enough for both of them. The wife contends she was ordered out of the house by the husband, who has refused to allow her to return in spite of efforts on her part to do so, and that such constitutes a constructive abandonment on his part.

While the evidence reflects that the parties argued considerably in the weeks leading up to the separation, the evidence does not support a finding that the husband actually ordered the wife to leave. In his written reasons for judgment, the trial judge found as a fact that the defendant-wife abandoned the matrimonial domicile and refused to return thereto. The one clearly established fact in this case is that the wife was the one who moved out. She failed to establish legal cause for leaving. We find no error in the conclusion of the trial court.

On the issue of the amount of alimony pendente lite, the evidence establishes that the husband has a net monthly income of $947.66. He listed monthly expenses of $876. The wife has a net monthly income of $500 and she listed total monthly expenses of $960.14. The district court awarded her alimony in the amount of $150 per month. The amount awarded is within the range of the sound discretion of the trial court. We find no error or abuse of discretion in this regard.

Defendant contends the trial judge should have fixed the commencement date for the payment of alimony pendente-lite as of the date of filing of defendant’s re-conventional demand for alimony in October, 1974. As previously mentioned, the case was not tried until December, 1975. The judgment ordered payment of alimony commencing December 1, 1975. In Cumpton v. Cumpton, 283 So.2d 846 (La.App.2d Cir. 1973), this court held that where there are reasons making it impractical or inequitable to commence accrual of alimony retroactive to date of judicial demand, the trial judge has discretion in specifying the commencement date for alimony payments. ■ In the instant case the issue of alimony was not tried until more than a year after the reconventional demand for alimony was filed. The evidence shows that during the time the suit was pending the husband gave to the wife various sums of money, including a part of income tax refunds and a part of the proceeds of insurance on the house that burned. We find no abuse of discretion by the trial judge in beginning the alimony payments in December, 1975.

For the reasons assigned, the judgment of the district court is affirmed at appellant’s costs.

Affirmed.


text:
    Marshall M. JONES et ux., Plaintiffs-Appellants, v. THARPE BROTHERS BUILDERS, INC., Defendant-Appellee.
    No. 12939.
    Court of Appeal of Louisiana, Second Circuit.
    July 7, 1976.
    En Banc. Rehearing Denied Aug. 3, 1976.

      Morelock, Egan & Cook by Reuben W. Egan, Shreveport, for plaintiffs-appellants.
    Kitchens, Benton & Kitchens by Gray-don K. Kitchens, Jr., Minden, for defendant-appellee.
    Before BOLIN, MARVIN and JONES, JJ-
   BOLIN, Judge.

Marshall and Helen Jones sue for damages allegedly resulting from defective workmanship performed by Tharpe Bros., Inc., under a contract to remodel the Joneses’ home. The lower court decided the Joneses had compromised their claim and they appeal. We affirm.

Appellants contend the defects of which they now complain were not discoverable until after the compromise. The issue is: did plaintiffs intend to compromise all claims arising out of the defective workmanship ?

The Joneses decided to repair and remodel their home and contacted Tharpe Bros., Inc., about doing the work. After preliminary discussion as to the nature and extent of the work to be done, Tharpe wrote Jones a letter agreeing among other things to enclose the carport, add a den and fireplace, and to do the necessary finishing work for this repair and enlargement. Tharpe agreed to do the job on a “cost plus” basis.

The Joneses having accepted Tharpe’s proposal, Tharpe began work on the job. During the course of the construction which lasted several months, the Joneses made numerous complaints to Tharpe about such things as poor workmanship, lack of supervision, and the laborers not working. When Tharpe thought the work was finished he notified the Joneses and asked that the unpaid balance under the contract be paid. The Joneses thought the bill was excessive and refused to pay. After much discussion and some delay Tharpe agreed to discount his bill approximately twenty percent and Mrs. Jones gave Tharpe a check for the reduced balance. On the face of the check was written “Payment in full for material and labor — agreement reached on disputed total”. This check was accepted by Tharpe who gave the Joneses a letter stating he had been paid in full for the work.

The Joneses claim that, after they paid Tharpe, defects in the construction became apparent to them for the first time. This suit is for the amount they say it will cost to correct and repair these defects. Tharpe contends the defects were discussed before the check for final payment was given.

We find no disputed legal questions. Louisiana Revised Civil Code Article 3071 provides :

A transaction or compromise is an agreement between two or more persons, who, for preventing or putting an end to a lawsuit, adjust their differences by mutual consent, in the manner which they agree on, and which every one of them prefers to the hope of gaining, balanced by the danger of losing. This contract must be reduced into writing.

For cases interpreting the above article see Pipes v. Jesse F. Heard & Sons, Inc., 258 So.2d 187 (La.App. 2d Cir. 1972); Linda Mercantile Corp. v. Bowers, 230 So.2d 302 (La.App. 1st Cir. 1969, writ refused 1970).

In this case the only disputed element of a compromise is mutual consent. This can only be determined by examining the actions of the parties and the facts surrounding the asserted compromise. The trial judge found the Joneses had good reason for being dissatisfied with Tharpe’s work. He found that before the settlement the Joneses corrmlainpfl about the workmanship and the total number of labor hours which culminated in the dispute as to the total amount owed. He further found that in order to settle this dispute Tharpe agreed to accept an amount less than the total bill; that the compromise was mutually agreed to by the parties and was binding on both.

We agree with the conclusion and findings of the lower court. We further find that complaints about the specific items made the basis of this suit were elements considered when the parties resolved their dispute by the compromise; that Tharpe had attempted to correct these defects before he accepted the Joneses’ check. We find that Tharpe has established all the elements of a compromise.

The judgment is affirmed at appellants’ cost.


author: JONES, Judge.

text:
    Dorothy CAIN et al., Plaintiffs-Appellants, v. BOARD OF SUPERVISORS OF ELECTIONS, OUACHITA PARISH, Louisiana, et al., Defendants-Appellees.
    No. 12951.
    Court of Appeal of Louisiana, Second Circuit.
    July 7, 1976.
    En Banc. Rehearing Denied Aug. 3, 1976.
    Bruscato & Loomis by Anthony J. Brus-cato; Robert P. McLeod, Monroe, for plaintiff s-appellants.
    Pipes & Pipes by Richard H. Pipes, Monroe, for The Municipal Democratic Executive Committee of Ouachita Parish, Louisiana, defendant-appellee.
    J. Carl Parkerson, Dist. Atty., Monroe, Attorney for Board of Supervisors of Elections.
    Before BOLIN, MARVIN, and JONES, JJ-
   JONES, Judge.

Plaintiffs Dorothy Cain, Rev. W. Williams, Rev. Joseph Montgomery and Jacob E. Charleston, all of whom are domiciled in Ouachita Parish, sued the Board of Supervisors of Elections of Ouachita Parish (hereafter Board of Elections), the Municipal Democratic Executive Committee (hereafter, The Committee) and Wade O. Martin, Jr.

The plaintiffs are all qualified electors of the Town of Richwood, Louisiana, as created by proclamation of the acting Governor of Louisiana, issued March 18, 1975 pursuant to LSA-R.S. 33:52. Pursuant to LSA-R.S. 33:54 the governor also appointed officers of the newly created municipality to serve until the next general municipal election. On April 17, 1975 suit was filed by certain interested parties, other than plaintiffs in the instant case, seeking to have the proclamation declared null and void. At the time of the instant suit for injunctive relief, no final judgment had been rendered in the suit to have the proclamation declared null and void.

The Ouachita Parish Democratic Executive Committee passed a resolution appointing members of a Municipal Democratic Executive Committee of the Town of Richwood. The Municipal Committee then issued its election call and received qualifying papers for municipal officers to be elected April 3, 1976.

On February 10, 1976, this action was instituted by plaintiffs. Although the petition is captioned Petition for Injunctive and other Relief, examination reveals that plaintiffs are seeking an injunction prohibiting the Board of Elections, the Committee, and the Secretary of State from proceeding with, in any way, the certification of candidates or taking any such other action in furtherance of the conduct of the April 3, 1976 primary election insofar as the Town of Richwood, Louisiana, is involved. . . .

A temporary restraining order was issued by the district court on February 9, 1976. That order was extended at the hearing on the rule for preliminary injunction heard on February 19, 1976. Another extension for 10 days, subject to further action of the trial court, was granted effective February 29, 1976. On March 3, 1976, the temporary restraining order was recalled and annulled and the preliminary injunction was denied. Judgment was signed to that effect on March 31, 1976. Plaintiffs appealed devolutively.

Plaintiffs assign one alleged error. That is, the trial court erred in holding that municipal elections can he held for a township created by a proclamation when there is presently pending a civil suit contesting the proposed incorporation.

While no motions were filed contending that this case is now moot, this court has the right to consider this possibility ex proprio motu. C.C.P. art. 2164; Behler v. Louisiana State Racing Commission, 251 La. 959, 207 So.2d 758 (1968); Major v. Louisiana Department of Highways, 327 So.2d 515 (La.App., 1st Cir. 1976). Moot questions will not be considered on appeal. Behler, supra; Mitchell v. Bertolla, 328 So.2d 380 (La.App.2d Cir. 1976 (cert. granted June 4, 1976); State ex rel. Guste v. Louisiana Milk Commission, 297 So.2d 750 (La.App., 1st Cir. 1974).

Counsel admitted at oral argument of this case that the April 3, 1976 election at which this action is directed, did in fact take place. Appellant contends that the matter of the injunction has not become moot because there are further activities arising out of the April 3, 1976 voting which will occur in the future. We find that, while that may be true, the instant matter has indeed become moot.

Plaintiffs’ petition sought to prohibit certain individuals from proceeding with, in any way, the certification of candidates or taking any such other action in furtherance of the conduct of the April 3,1976, primary election. (Emphasis supplied).

All the allegations of plaintiffs’ petition with respect to the injuries that would be incurred by them or other interested parties, i. e., the basis for the injunction, were said to result from the conduct of the April 3, 1976 primary election. The record is devoid of any evidence that subsequent activities will even occur, much less that those activities will injure plaintiffs. This matter has, therefore, become moot. We must dismiss the appeal.

Accordingly, the appeal is dismissed.


text:
    GOLD & SUCKLE, INC., Plaintiff-Appellee, v. Stephen L. SUCKLE et al., Defendants-Appellants.
    No. 12940.
    Court of Appeal of Louisiana, Second Circuit.
    July 7, 1976.
    En Banc. Rehearing Denied Aug. 3, 1976.
    Writ Refused Oct. 29, 1976.

      Nelson & Achee, Ltd. by Harry R. Nelson, Shreveport, for defendants-appellants.
    Naff, Kennedy, Goodman, Stephens, Donovan & Parnell by Frank S. Kennedy and William M. Comegys, III, Shreveport, for plaintiff-appellee.
    Before BOLIN, MARVIN and JONES, JJ-
   MARVIN, Judge.

Defendants, Stephen and Barry Suckle, appeal from the issuance of a preliminary injunction against them enforcing their agreement not to compete with plaintiff, Gold & Suckle, Inc. We affirm.

On August 31, 1973, Gold & Suckle, Inc., purchased the outstanding corporate stock of Gold and Suckle Pipe and Supply Co., Inc. and Gulf Southern Supply Co., Inc. These corporations were engaged in the business of buying and selling surplus valves, fittings and flanges. The defendants and other members of the Gold and Suckle families, owned and operated the businesses. As their part of the sales price, defendants received $200,000.00 each for their stock in the corporations.

At the time the sale of the corporate stock was being negotiated and consummated, James Latham, president of the plaintiff purchasing corporation, was also negotiating with defendants to retain their business expertise and experience as managers for the purchasing corporation. Defendants continued their employment with the purchasing corporation during this time without interruption. Written employment contracts containing agreements not to compete were submitted to defendants for their approval at the time of the August 31 sale and at later dates, but were not signed by defendants. Eventually, on December 14, 1973, defendants signed employment contracts containing an agreement not to compete. Defendants’ employment contracts are identical in terms and we shall treat them as one.

The agreement not to compete, as amended, reads:

“For a period of six (6) years from the date of employment of Employee by Employer, Employee will not, unless acting as an officer or employee of Employer or any of its subsidiaries, directly or indirectly own, manage, operate, join, control or participate of [sic] have any interest in, or be connected as an officer, employee, partner or otherwise with, any business conducted in whole or in part in any of the States of Texas, Louisiana, Oklahoma, Arkansas, Mississippi, Alabama, Georgia, Florida, South Carolina, North Carolina or Tennessee which is substantially similar to the business presently conducted by GOLD AND SUCKLE PIPE & SUPPLY CO., INC. (hereinafter called “G-S”)., i. e. the purchase for resale or reconditioning of valves for use in the oil, gas and other industries. Employee acknowledges that the remedy at law for any breach of the foregoing will be inadequate, and that Employer shall be entitled to injunctive relief.
“If this contract is terminated by either the Employer or Employee, Employer shall pay Employee the sum of TEN THOUSAND ($10,000.00) DOLLARS per year for the remainder of the six (6) year term of this contract, such compensation being considered consideration for the foregoing restrictive covenant. Such $10,000.00 shall be payable in monthly installments and shall be prorated for payments during any one (1) year in the event the contract is terminated other than at any anniversary date of this Agreement.”

The record shows that defendants became dissatisfied with their situation as co-managers of the plaintiff corporation in 1975. They commented to subordinate employees of their dissatisfaction and suggested to several subordinates that it would be to the economic interest of the subordinates to leave their employ with the plaintiff corporation and accept employment with defendants in a new business to be owned by defendants. Having access to plaintiff corporation’s records containing names and addresses of suppliers and customers, defendants reproduced and apparently amassed some of this information for themselves. At one time, one defendant went to plaintiff’s offices at 4:00 a. m. for such purpose.

On November 17, 1975, plaintiff terminated defendants’ employment. About this time or shortly after, defendants legally incorporated as Flanges and Fittings, Inc., to engage in the specific business of buying and selling of weld fittings and flanges, but not valves. Proceedings for injunctive relief were brought by plaintiff on December 29, 1975.

Agreements not to compete are obligations not to do. LSA-C.C. Art. 1926, et seq. Where damages are inadequate, specific performance of an obligation not to do may be compelled through injunctive relief. LSA-C.C. Arts. 1927 and 1929. Articles 1926, 1927 and 1929 of the Civil Code establish the essential conditions needed to obtain injunctive relief in enforcing agreements not to compete. See also LSA-C.C.P. Art. 3601.

Injunctive relief may be used in enforcing valid agreements not to compete. The courts of this state have on several occasions upheld, as valid, agreements not to compete which were ancillary to the sale of a business and its good will. See Moorman & Givens v. Parkerson, 127 La. 835, 54 So. 47 (1911), and Hickman v. Branan, 151 So. 113 (La.App.Orl. Cir. 1933). This agreement expressly contemplates injunc-tive relief.

We must first decide whether the agreement not to compete under consideration is ancillary to or is an incident of the sale of the business on August 31, 1973, or whether it is a separate and independent employee-employer contract subject to the provisions' of R.S. 23:921. While the employment contract was not signed for some three and one-half months after the sale of the business, the record shows that the employment contract containing the agreement not to compete was an incident of and was ancillary to the sale. The record shows that negotiations for the sale of the business and the retention of defendants as managerial employees of plaintiff corporation were conducted simultaneously. The several drafts of the employment contract contained a similar, but not identical, agreement not to compete. James Latham, plaintiff’s president, considered the retention of defendants by the plaintiff corporation as a moving force or essential cause behind the purchase because he was not experienced in this particular business and it was his practice to have experienced management to conduct the day-to-day operations of the several corporate businesses owned by him.

We are required then to test the restriction in question as to its reasonableness in time and geographic limitation and for the existence of consideration, under the mandate of strict construction. See cases cited supra, Deselle v. Petrossi, 207 So.2d 190 (La.App. 4th Cir. 1968) and 33 La.L.R. 94.

A payment to each defendant of $10,000.00 per year is also provided in the agreement even if terminated by employer or employee for the six year term. See agreement quoted supra. Consideration is present. The time the restriction is to apply (six years) is stated and is reasonable. Reasonable geographic limitation (11 southern states) is also present. In Des-selle, supra, the court noted the difficulty of laying down a general rule as to reasonableness in such restrictions and held that each case must be decided on its own facts. We hold the restriction is reasonable in all respects and that injunction is the proper remedy.

The term strict construction was interpreted by this court when considering a city ordinance in Gamburg v. City of Alexandria, 85 So.2d 276 (La.App. 2d Cir.1956). Whether contract (law between the parties) or statute (legislatively enacted law), the term strict construction has similar connotations and what was said in Gamburg is appropriate here. Applying the mandate of strict construction, courts are not to expand the language at issue by implications or equitable considerations. Strict construction, however, does not confine itself solely to situations within the letter of the law or contract, but to situations as well, which are clearly included within its spirit or reason. See Gamburg, supra. We do not find the lower court’s interpretation expanded, by implication or equitable considerations, the restriction in question.

The lower court admitted evidence to show what business Gold & Suckle Pipe and Supply Co., Inc. was engaged in at the time of and before the sale and what business the plaintiff corporation was engaged in after the sale. The lower court said:

“The disputed provision of the employment contract prohibits defendants from engaging in business ‘ — which is substantially similar to the business presently conducted by Gold & Suckle Pipe & Supply Company, Inc., i. e. the purchase for re-sale or re-conditioning of valves for use in the oil, gas and other industries.’ Ample evidence has been introduced to convince the Court that the meaning of the words ‘ — the purchase for re-sale or re-conditioning of valves for use in the oil, gas and other industries’ contemplates the .sale of flanges and weld fittings to be used with the valves. While there are some companies selling specialized valves without flanges and fittings, in the used or surplus valve business the sale of flanges and weld fittings is contemplated. Those companies mentioned by defendants that sold only flanges and fittings are not in the same type business as the business of used, surplus and re-conditioned valves as conducted by Gold & Suckle Pipe & Supply Company, Inc.
“In addition, the use of ‘i. e.’, which means 'id est’, or ‘that is’, or ‘that is to say’, has the same meaning as ‘namely’. See Garrison v. City of Shreveport, 179 La. 605, 154 So. 622, page 623. In the Garrison case cited above the court held that the intent of the statute therein construed was to be such as to give effect to both clauses, the clause before the use of ‘namely’ as well as the clause that followed. That case also said that the inclusion of one matter after the use of the word ‘namely’ did not intend to exclude other matters, because that maxim serves only where such intent is not otherwise manifest.
“The use of the words ‘i. e. the purchase for re-sale or re-conditioning of valves for use in the oil, gas and other industries’ was merely the introduction of another way of putting what had already been said by the words ‘which is substantially similar to the business presently conducted by Gold & Suckle Pipe & Supply Company, Inc.’
“The testimony of all the witnesses was the old corporation, Gold & Suckle Pipe & Supply Company, Inc., sold valves, flanges and welding fittings and the flanges and welding fittings were a substantial part of the business. Plaintiff’s witnesses testified that the gross sales of the corporation consisted of 40-50% of the sale of flanges and welding fittings. At the time the business was purchased there was a three-year inventory on hand of these items, the sale of which had been temporarily suspended because a shortage in the market was predicted and the management did not want to deplete their entire stock in short order, but desired to sell it out slowly while disposing of some less desirable merchandise.
“Considering the above wording, the instrument, the actions of the parties and the substantial nature of the business purchased and the sales price, it is my opinion that there is no doubt but what the contract was intended to prohibit such conduct by defendants with reference to flanges and weld fittings, and I think the contract is clear in this regard.”

We find that the lower court properly admitted evidence to show the continuity of the business because the restriction itself called for resolution of whether the business before the sale and the business after the sale were “substantially similar.” The terms of the restriction were not varied or expanded by parol, as defendants contend. See 35 La.L.R. 795 and cases cited therein. The businesses before and after the sale were the same and almost without exception with the same customers and suppliers and employees, according to our interpretation of the evidence. The spirit, reason, and the letter of the restriction clearly call for the conclusion reached below and here.

The injunction below prohibited defendants from “contacting any of plaintiff’s employees in an effort to induce them to leave plaintiff’s employment . . .” as well as from competing in any manner with the business of plaintiff. While defendants’ contacts with plaintiff’s employees were for the specific purpose of persuading them to engage in competition with the plaintiff, and therefore, were in violation of the restriction, the language in the injunction itself would prevent defendants from inducing plaintiff’s employees to accept employment in a situation where they would not in fact be in competition with plaintiff. We shall amend the injunc-tive order in this respect to conform exactly with the language of the restriction. Accordingly,

IT IS HEREBY ORDERED, ADJUDGED AND DECREED that a preliminary injunction issue against the defendants, Stephen L. Suckle and Barry N. Suckle, for a period of six (6) years from the date of their employment, August 31, 1973, with Gold and Suckle, Inc. prohibiting and enjoining them from directly or indirectly owning, managing, operating, joining, controlling or participating or having any interest in, or being connected as an officer, employee, partner, or otherwise with, any business conducted in whole or in part in any of the states of ’Texas, Louisiana, Oklahoma, Arkansas, Mississippi, Alabama, Georgia, Florida, South Carolina, North Carolina, or Tennessee which is substantially similar to the business formerly conducted by Gold and Suckle Pipe & Supply Co. Inc., (predecessor to Gold and Suckle, Inc.), i. e. the purchase for resale or reconditioning of valves for use in the oil, gas and other industries.

As amended, and at appellants’ cost, the judgment is

AFFIRMED.