author: MILLER, Judge.

text:
    Love WILLIAMS, Plaintiff-Appellee, v. SHERWOOD HOMES, INC., et al., Defendants-Appellants.
    No. 5450.
    Court of Appeal of Louisiana, Third Circuit.
    May 26, 1976.
    Rehearing Denied June 30, 1976.

      Watson, Murchison, Crews & Arthur by R. Raymond Arthur, Natchitoches, for defendants-appellants.
    Gerard F. Thomas, Jr., Natchitoches, for plaintiff-appellee.
    Before MILLER, WATSON and BERTRAND, JJ.
   MILLER, Judge.

Defendants, Travelers Indemnity Company and its insured Sherwood Homes, Inc., appeal the award of total and permanent workmen’s compensation benefits to plaintiff Love Williams. We affirm.

The thirty-nine year old, semi-literate, inarticulate, male plaintiff worked for Sherwood Homes for six years. During all this time he was a good employee and assembled and installed axles and wheel units for mobile homes. This was hard manual labor requiring full use of both hands to handle the 150 pound assemblies. Prior to the accident which is the subject of this litigation, Williams suffered three accidents. An “I” beam fell on his right hand causing a little cut; paint got in his eye; and he hurt his back. There was no lost time related to the first two accidents, and almost no lost time related to the back injury.

On Friday, January 18, 1975, after some four hours on the job during which he assembled and installed some six wheel assemblies, Williams’ left wrist gave way while he was attaching a wheel assembly. He suddenly lost use of his left hand and his drooping wrist was observed by all his coemployees. They had never seen this condition before. Sherwood Homes’ foreman promptly took Williams to the doctor and Williams has not worked since that date.

Williams’ condition has been diagnosed as radial nerve palsy and defendants contend this was developmental in nature and did not result from trauma or a job related accident. Defendants contend the trial court erred in finding Williams proved an “accident” under workmen’s compensation law.

Defendants point to Williams statements and his medical histories in which he was unable to explain what caused his left hand to suddenly give way. Williams repeatedly stated he was not struck by anything during his four hours work on January 18th. Williams’ statements and medical histories to the effect that he was not injured on the job were within the context that he was not struck by anything. Instead he consistently stated he could not account for the fact that his left hand suddenly drooped and has been of no use to him since that occurred on the job. We ultimately hold no manifest error in the trial court holding that the on the job sudden onset of his disability constituted an accident.

When Williams awoke on the morning of January 18 his left hand tingled like it was still asleep, but this went away before breakfast. His foreman testified that during the week of the accident Williams had made two complaints on different days reporting he did not have complete feeling in his left hand. Defendants contend this evidence supports their position that Williams’ disability is not related to an accident.

This argument was rejected because until the moment the left hand dropped the assembly Williams performed all the duties of his employment without help. Williams performed hard manual labor every work day for at least a week before the accident and for several hours before his wrist became useless on January 18. Williams explained that while he was trying to hook up the middle axle of a three axle assembly, something went wrong with his left arm: — “It just felt like something was coming loose up in there ...” Tr. 65. There is no manifest error in the trial court’s finding that this testimony and the surrounding supporting facts proved the accident.

One medical expert concluded there was a causal connection between the sudden onset of Williams’ disability and his January 18 work which consisted of heavy lifting and straining with his arms. The other expert differed. The experts agreed that Williams’ working conditions alone would not have caused his disability. But both agreed that a stretch or traction type injury could precipitate or aggravate the developmental condition.

In his written reasons the trial court carefully reviewed the evidence and jurisprudence. In his opinion and after reconsideration on defendants’ application for rehearing, the trial court held Williams proved an “accident” under the workmen’s compensation statute as interpreted by the jurisprudence and his disability resulted from the accident. We fail to find manifest error in the trial court’s factual determination and application of the law.

The trial judge applied the three part test set forth in Ferguson v. HDE, Inc., 264 La. 204, 270 So.2d 867 (1972). The injury is accidental if 1) it is unexpected and unforeseen; 2) it happened suddenly and violently; and 3) it produced objective symptoms of the injury at the time of the accident. Specifically noted was the fact that it is not necessary for claimant to establish “some blow or trauma, but it would be sufficient that the employee suffer violence to the physical structure of the body.” Ferguson, supra, where claimant recovered compensation when he suffered a stroke on the job. See also, Gorbach v. Prager, Inc., 310 So.2d 604, 606 (La.1975).

The complete loss of use of Williams’ left hand was unexpected and unforeseen; it occurred on the job suddenly and violently, for it resulted in his dropping the assembly; and everyone on the job observed Williams’ total inability to use his left hand after the incident. The foreman immediately took Williams to the doctor and Williams has been disabled from that time.

Defendants appellants contend a different result is required by the holding in Prim v. City of Shreveport, 297 So.2d 421 (La.1974). The court there required the causal connection to be more probable than not. In Prim, the trial court, the court of appeal, and the supreme court each rejected claimant’s argument that his stroke was job related. The facts in that case supported the finding, and we distinguish Prim on the facts.

The employer takes his employee as he finds him. It is not important that the employee’s diseased or weakened condition might alone have eventually produced the disability. An employee’s disability is fully compensable when precipitated by an industrial accident, even though also caused by a contributing, pre-existing, dormant physical condition. Kennedy v. Calcasieu Paper Company, 262 So.2d 800 (La.App. 3 Cir. 1972). The disability of a workmen’s compensation claimant is presumed to have resulted from an accident if before the accident the injured person was fully capable of performing his work. Porter v. Augenstein Construction Company, 280 So.2d 861 (La.App. 3 Cir. 1973).

Appellants seek to reverse the trial court’s determination of credibility as to plaintiff and his witnesses. Appellants contend their testimony is vague, implausible, and inconsistent. We will not reverse the trial court’s determination of credibility absent manifest error. LeDoux v. Calcasieu Parish Police Jury, 326 So.2d 387 (La.App. 3 Cir. 1976). Appellants have failed to carry that burden.

The trial court judgment is affirmed at appellants’ costs.

AFFIRMED.


source: Caselaw Access Project

author: SAMUEL, Judge.

license: Public Domain

text:
    GAMBINO INDUSTRIES, INC. v. SECURITY INSURANCE COMPANY OF HARTFORD and Rosenthal Agency, Inc.
    No. 7035.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 9, 1976.
    Laborde & Brooks, John H. Brooks, New Orleans, for plaintiff-appellant.
    Bienvenu, Foster, Ryan & O’Bannon, Ernest L. O’Bannon, New Orleans, for defendants-appellees.
    Before SAMUEL, LEMMON and MORIAL, JJ.
   SAMUEL, Judge.

Plaintiff filed this suit on a fire insurance policy against Security Insurance Company of Hartford, the insurer, and Rosenthal Agency, Inc., the agency from which the policy was purchased. Plaintiff claims: Security had issued a $5,000 policy insuring the contents of plaintiff’s place of business located on N. Claiborne Avenue in the City of New Orleans; a dwelling located on Frenchmen Street directly behind the N. Claiborne Avenue property had been remodeled, its use as a dwelling was discontinued and it was being used as a part of the corporate business; on December 7, 1972 Stan Rosenthal, president of Rosenthal Agency, personally inspected the property and determined the Frenchmen Street structure was no longer being used as a dwelling but had become part of the corporate bakery business, thus bringing the contents within the coverage of the corporate policy; and on December 25, 1972 the contents of the structure were damaged by fire in an amount far exceeding the limits of the policy. Suit was filed on January 22, 1974 for $5,000, plus penalties and attorney’s fees.

Security filed an exception of prescription of one year to the petition. At the hearing of the exception, documentary evidence was introduced along with the testimony of Warren Gambino, Sr., Phillip T. Hager (Gambino’s attorney), and Stan Rosenthal. After the hearing, there was judgment maintaining the exception and dismissing plaintiff’s suit as to Security. Plaintiff has appealed.

The record establishes that Rosenthal drew up a general change endorsement after inspecting the property on December 7, 1972 but did not submit the endorsement to Security at that time because the Louisiana Fire Prevention Rating Bureau asked him to wait until the entire remodeling was completed so they would not have to inspect the building twice. Thus, Ro-senthal had not contacted the insurer prior to the December 25 fire.

After the fire, Gambino contacted his attorneys and was in touch with Rosen-thal who told Gambino he could handle the matter without the necessity of Gambi-no retaining attorneys. Gambino then instructed his attorneys to withdraw from the matter. After various negotiations on Rosenthal’s part, plaintiff ultimately received $95,000 of the $100,000 fire policies. However, Security refused to pay for the contents of the Frenchmen Street building because the corporate policy had not been amended. Rosenthal was of the opinion that since he, as Security’s agent, had knowledge of the change prior to the fire, Gambino was entitled to recover the contested $5,000.

On February 6, 1973, K. R. Phillips, Jr., a defendant insurance adjuster, wrote to Gambino enclosing a check for $40,000 representing payment of Security’s share of the risk. The letter stated no allowance was made for the contents of the Frenchmen Street building, but that signing the proof of loss and subrogation receipt would not constitute a release or waiver of any claim Gambino might have relative to the contents of the Frenchmen Street building. On February 26, 1973, Rosenthal wrote to Gambino stating he had received a $15,000 check from another insurance company, was waiting for a check 'from Security which should be forthcoming, and was in the process of negotiating with Security for the additional $5,000.

On April 5, 1973, Rosenthal wrote to a Mr. McBee (the Security claims manager) stating that in his opinion coverage was provided under the Security policy because of the fact that he (Rosenthal), as Security’s agent, had inspected the premises three weeks prior to the loss. Thereafter, on August 24, 1973, Gambino received a letter from McBee enclosing a draft for $1,-666.66 to compromise the matter. It was Security’s position that no additional applicable coverage remained unused and that the payment was not an admission that any amounts were owed. The draft was tendered without prejudice to any rights Gambino might have under the policy. The letter explained there was $30,000 coverage on the contents issued by three insurance companies with Security’s share being one-third of the total contents. Consequently, the check for $1,666.66 represented one-third, or Security’s share of the $5,000.

On September 14, 1973, Rosenthal wrote to McBee informing him of his negotiations with Gambino. Sometime after receiving the check of August, 1973, Gambino returned to his attorneys and on November 8, 1973 they wrote McBee returning the Security check with the information that if a check in the amount of $5,000 was not forwarded to the attorneys’ office within ten days, suit would be filed for that amount, plus penalties and attorney’s fees. As we have said, this suit was filed on January 22, 1974.

In this court, appellant contends: (1) The matter has not prescribed because plaintiff’s loss occurred on the date the company denied reimbursement, rather than the date the fire occurred; and, alternatively, (2) appellant cannot plead prescription because it lulled plaintiff into believing the claim would be paid.

Plaintiff's first contention is based upon the first of two diametrically opposed Supreme Court cases, Finkelstein v. American Ins. Co. of Newark, N.J., and Gremillion v. Travelers Indemnity Company. In Finkelstein the plaintiff sustained hurricane damage on September 19, 1947 and suit was filed September 27, 1948. The question at that time was res nova. It involved an interpretation of the provisions of the insurance code, LSA-R.S. 22:1-1450, which, among many other requirements, make it mandatory for all insurance companies doing business in this state to incorporate in their policies a clause to the effect that no suit for recovery on an insurance policy shall be entertained in any court unless commenced within twelve months next after the inception of the loss, the same clause contained in the policy in this suit. A strict application of the language of that clause would have resulted in sustaining the plea of prescription for the reason that the Finkelstein suit was not instituted until eight days beyond the twelfth month date of the hurricane which caused the damage. The important words in the clause and those which lead to difficulty in interpreting it were “within twelve months next after inception of the loss”.

Citing 29 Am.Jur. Insurance, § 1397, and following an examination of decisions in various courts in the country revealing a conflict, the Supreme Court in Finkelstein concluded it would follow the decisions of the courts which had applied a liberal rather than a literal construction of the limitation clause. It held the twelve month period did not begin to run until after the cause of action had accrued by virtue of some other provisions and requirements of the policy (i. e., sixty days after the ascertainment of loss either by agreement between the insured and the insurance company, or by arbitration as is usually provided for in the policy in case the parties are unable to agree).

In Gremillion, a dwelling was damaged by fire on December 20, 1966, negotiations were conducted over an extended period, and on January 9, 1969, eight days after negotiations between the parties had broken off and more than two years after the fire, plaintiff filed suit against the insurance company. Under the Finkelstein rule as applied to these facts, the suit would have been timely filed. The court, however, concluded that LSA-R.S. 22:691 had not been correctly interpreted in Finkelstein and therefore specifically overruled that case, holding in Gremillion that prescription began to run on the date of the fire.

At the time this matter was submitted, plaintiff argued that because there were only two divergent decisions of the Supreme Court on the subject, and because the composition of the Supreme Court is now different than it was in 1970 when Gremillion was decided, if again presented with the problem the court would overrule Gremillion and return to its original decision in Finkelstein. The answer to this argument is now twofold. First, we are obliged to follow the latest holding of the Supreme Court so that, in the absence of later jurisprudence from that court, we would be required to follow Gremillion; and second, subsequent to the submission of this case the Supreme Court has handed down P. O. P. Construction Co. v. State Farm Fire & Cas. Co., in which it reaffirmed and followed the conclusion reached in Gremillion.

We find no merit in plaintiff’s second contention. For some time plaintiff may have believed its claim would be amicably settled. But it is clear that after receipt of the $1,666.66 check and accompanying letter in August, 1973, plaintiff knew it could not look to Security for payment in full of $5,000. The November 8, 1973 letter from its attorneys to Security shows the necessity of filing suit was understood if a check for $5,000 was not forthcoming. Suit could have been filed prior to the one year prescriptive date as required by Gremillion, and the failure of plaintiff to do so cannot be attributed to actions of Security.

For the reasons assigned, the judgment appealed from is affirmed.

AFFIRMED.

      . Letters dated February 6, 1973 to Gambino, Sr. from Rosenthal; to Gambino, Jr. on February 5, 1973 from K. R. Phillips, an adjuster representing the insurer; February 26, 1973 to Gambino, Sr. from Rosenthal; April 5, 1973 to Mr. McBee, Security’s claims manager, from Rosenthal; August 24, 1973 to Gambino from McBee; and September 14, 1973 to McBee from Rosenthal; (a certified copy of the policy and the general change endorsement, and a letter of November 8, 1973 from Hager to McBee were introduced by defendant).

      . Three different insurance companies shared the risk.

      . Phillips’ letter to Gambino of February 5, 1978.

      . December 25, 1972.

      . 222 La. 516, 62 So.2d 820.

      . 256 La. 974, 240 So.2d 727.

      . 328 So.2d 105.


author: STOULIG, Judge. BEER, Judge,

text:
    BILOXI CANNING AND PACKING CO., INC. v. FOTI AND DANNA, a Commercial Partnership, et al.
    No. 7525.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 9, 1976.

      Satterlee & Mestayer, Henry F. Mestayer, New Orleans, for plaintiff-appellant.
    Foti, Hartley & Pettingill, LeRoy A. Hartley and Usry & Leefe, T. Allen Usry, New Orleans, for Charles C. Foti, Jr., defendant-appellee.
    N. A. Danna, Jr., New Orleans, for Charles Danna, defendant-appellant.
    Before STOULIG, SCHOTT and BEER, JJ-
   STOULIG, Judge.

Plaintiff, Biloxi Canning and Packing Co., Inc. (Biloxi), filed suit against Foti and Danna, a commercial partnership, and its individual partners, Charles Foti, Jr., and Charles Danna, to recover a duplicate payment of $5,775.40 for 70 barrels of raw shrimp delivered to plaintiff on November 25, 1972. Plaintiff issued the first check to “Foti and Dana” on November 25, 1972, for $5,775.40. Later, at the request of Charles Danna, Biloxi filed a written order to stop payment on this check and reissued two substitutes on December 6, 1972 — one to the partnership’s supplier, Southwest Pass Seafood, for $5,124 and the other to Kenneth Danna for $651.40. Plaintiff only issued the second checks after an employee of its bank assured its representatives the first check had not cleared. However the computer erred, the first check had been presented for payment in late November and cleared the bank. Plaintiff’s efforts to be reimbursed were unsuccessful; hence this suit.

Defendant Charles Danna admitted he requested and received duplicate checks and, in third party pleadings, asked that Foti be held liable for wrongfully converting the proceeds of the first check and failing to pay the $5,124 due Southwest Pass Seafood. Danna also sought an accounting from Foti on the dissolution of the partnership. Defendant Charles Foti filed a general denial and, in third party pleadings, called on Danna to account for the proceeds of the second checks. Issue was never joined as to the partnership and no default judgment was entered against it.

After trial on the merits, judgment was rendered awarding plaintiff $5,775.40 against Charles Danna and casting Foti for one-half of that amount on Danna’s third party demand. All other claims were dismissed and the right to demand an accounting on the dissolution of the partnership was reserved to Danna. Only plaintiff, Biloxi, and defendant Charles Danna have appealed.

The facts briefly are these: In July 1972, Charles Foti, Jr., and Charles Danna formed a partnership to operate a seafood business. Foti was to handle the paper work and obtain the equipment, while Dan-na was responsible for buying and selling shrimp. Plaintiff’s representatives dealt exclusively with Charles Danna and had no personal contact whatsoever with Foti. The partnership actually “freighted” shrimp purchased from other sources, collected from plaintiff on delivery, and then paid the seller for the bulk shrimp it supplied.

D. J. Venus, plaintiff’s president, testified he would issue checks for each delivery as he was instructed by the truck driver delivering the load. Between July and November, 1972, the drivers instructed plaintiff’s representatives to issue checks for most of the balance indicated on the invoice to “Foti and Danna.” The remaining amount was paid to Charles Danna or to either one of his sons. 'Charles Danna testified there was a kickback system of which Foti was unaware and while the partnership was in existence, plaintiff’s records reflect that a member of the Dan-na family received payments up to $450 that appear to have been skimmed from the partnership profits.

In conjunction with the November 25, 1972 delivery, Biloxi was presented with a $6,225.40 invoice for a Foti and Danna shipment. Plaintiff issued one check to Kenneth Danna for $450 and the other to Foti and Danna for $5,775.40. Foti deposited the larger check to the partnership account on November 27.

About this same time, Foti told Danna the partnership was dissolved and gave him a letter to this effect. When Charles Danna next saw Dale Vinet, proprietor of Southwest Pass Seafood, he learned Vinet had not been paid the $5,124 due for the November 25 shipment to plaintiff.

Although the partnership was dissolved, Danna intended to continue in the shrimp business and it was to his interest to see that Vinet was paid because shrimp were in scarce supply at that time of year. Vi-net had contacted Foti and was promised he would be paid, but Foti never sent the check. He (Vinet) waited for a reasonable time to elapse before attempting to get his money from plaintiff.

Meanwhile, on December 1 and 2, plaintiff bought two loads of shrimp from defendant Danna and issued checks for the larger portion of the invoices to “Charles Dana Seafood” and “Dana Seafood.” ■ Both invoices named the seller as “Danna Seafood.”

On December 5, 1972, at Vinet’s request, Danna asked Biloxi officials to stop payment on the first check issued to Foti and Danna and issue substitute checks, one to Southwest Pass Seafood for $5,124 and the second to Kenneth Danna for $651.40. Roy Elder, plaintiff’s office manager, was assured by an employee of its bank on both December 5 and December 6 that the check issued to Foti and Danna on November 25 had not cleared. Foti was never contacted before the second checks were issued and interestingly enough, the substitute checks included a $651.40 payment to Kenneth Danna, who urged no claim against the partnership.

It is obvious from the record that plaintiff (1) issued the second set of checks only because its bank erred in reporting the first had not cleared; (2) made no effort to contact Foti or protect the partnership interest for $651.40; (3) had an interest in keeping the goodwill of Charles Danna and Vinet of Southwest Pass Seafood ; and (4) was not a creditor of the Foti and Danna partnership.

There is no basis in law for holding Foti liable to plaintiff for any part of the duplicate payment. When Foti dissolved the partnership, he had no obligation to notify plaintiff, because he was not in a position of having credit extended to his business by plaintiff on the assumption he (Foti) was personally liable. This is not to say plaintiff had no legal recourse. Had it paid Southwest Pass Seafood and taken an assignment of its claim, plaintiff would have had a sound basis on which to proceed.

The cases upon which appellants rely deal with the obligation of a partner to notify creditors of his withdrawal from the business if he wishes to terminate his individual liability for partnership debts. As we have observed, they are inapposite because there was no debtor-creditor relationship here.

We affirm that part of the judgment casting Danna for the sum of $5,775.-40. Not only did he assume sole responsibility for having duplicate checks issued, but he also directed the payment of part of the amount due the partnership to one of his sons. Plaintiff had dealt exclusively with Danna in all previous sales from the partnership and should not sustain a loss because of Danna’s manipulations. Equity demands plaintiff be reimbursed by Danna. (C.C. art. 21.)

In view of the trial court’s finding that the partnership of Foti and Danna is not liable, we do not understand the basis for the judgment against Foti as the record is presently constituted. However, we cannot disturb the award against him because he has neither appealed nor filed an answer to either one of the appeals.

For the reasons assigned, the judgment appealed from is affirmed.

AFFIRMED.

BEER, Judge,

concurring in part and dissenting in part.

I concur in the result which casts Danna in judgment. However, I do not agree with the majority’s conclusion that Danna must assume sole responsibility. In my view, the record does not support a finding that the commercial partnership of Foti and Danna had, at any time pertinent to this proceeding, been so effectively and properly dissolved as to charge Biloxi Canning and Packing Company, Inc. with actual or constructive knowledge of same. Accordingly, I am of the opinion that Dan-na was, at all times pertinent, acting for and in behalf of the commercial partnership. Based upon this, I conclude that the partnership and the individual partners thereof are obligated to repay the sum of $5,775.40 to Biloxi Canning and Packing Company, Inc., which, for all intents and purposes, represented an erroneous double payment to the partnership. In view of this, I must dissent from that portion of the majority opinion which limits liability to Danna, for I believe that the partnership and the individual partners should be cast jointly and in solido.

      . The name Danna is misspelled as “Dana” in the title and at various places throughout the record.

      . Modern Appliance and Supply Co. v. B. F. Ibos & Sons, 16 So.2d 552 (La.App.Orl.1944).

      . But were we to impose this obligation on Foti, we find that from the circumstances, plaintiff was aware of the termination of the partnership when the checks were issued. By the very nature of Danna’s request, it should have been obvious the partnership was embroiled in internal problems. If we couple with this fact the evidence of two shipments delivered by and checks therefor issued to a new firm, we conclude the officials of plaintiff should have been aware of the dissolution.


author: ELLIS, Judge:

text:
    ECONOMY CARPETS MANUFACTURERS AND DISTRIBUTORS, INC. v. BETTER BUSINESS BUREAU OF BATON ROUGE, INC.
    No. 10685.
    Court of Appeal of Louisiana, First Circuit.
    April 12, 1976.
    Rehearing Denied May 28, 1976.
    Writ Refused July 2, 1976.

      Bart Eaton, D. Bert Garraway, Baton Rouge, for Economy Carpets.
    Maurice J. Wilson, Breazeale, Sachse & Wilson, Baton Rouge, for defendants-ap-pellees.
    Donald T. W. Phelps, Baton Rouge, for exceptors, Breazeale, Sachse & Wilson.
    Before ELLIS, BLANCHE and LOT-TINGER, J.
   ELLIS, Judge:

Plaintiff Economy Carpets Manufacturers and Distributors, Inc. brings this appeal from a judgment sustaining an exception of not cause of action filed by defendant Breazeale, Sachse and Wilson, a profession law partnership, and dismissing the suit as to that defendant.

This suit was originally filed against the Better Business Bureau of Baton Rouge, Inc. for damages arising out of an alleged conspiracy to restrain trade or commerce in violation of R.S. 51:121 et seq. By a third supplemental petition, Breazeale, Sachse and Wilson was named a defendant. An exception of no cause of action was filed and sustained, and plaintiff given an opportunity to amend its petition. A fourth supplemental and amended petition was filed, amending paragraph 21 to read as follows:

“Defendant, Breazeale, Sachse and Wilson, is liable as a codefendant for the following reasons:
“(1) On information and belief, petitioner alleges that defendant has conspired and/or combined with the Better Business Bureau of Baton Rouge Area, Inc. and/or other named defendants herein, to restrain trade or commerce in violation of La.R.S. 51:122; which conspiracy or combination was calculated to and did cause injury and loss to plaintiff, all as set forth hereinabove;
“(2) Petitioner further alleges that one or more members of defendant law firm serve on the Board of Directors of the Better Business Bureau of Baton Rouge Area, Inc., and, as such, are privy to information received and also actively participated in the affairs of same and that defendant law firm did cooperate in advising and assisting the accomplishment of the common design to restrain trade or commerce and to defame petitioner by cooperating with, advising and assisting the co-defendants in this law suit in the following particulars:
“a. Bob Breazeale was and is a partner in the law firm of Breazeale, Sachse & Wilson; he is also a member of the Board of Directors and legal advisor to the Better Business Bureau of Baton Rouge Area, Inc. and has been since said organization was founded. By admission, other members of defendant law firm have also advised, cooperated with and assisted the Better Business Bureau of Baton Rouge Area, Inc. in the accomplishment of their common design by:
“1. Meeting with Jim Kohlter, president of the Better Bureau of Baton Rouge Area, Inc. for period in excess of one hour and aiding, assisting and cooperating with them in the preparation and publication of a so called ‘Special Bulletin’ published in October, 1974, which received wide circulation in the Greater Baton Rouge area, which said bulletin was devoted exclusively to petitioner and contained material and information which was false and misleading and which was calculated to injure, embarrass and humiliate petitioner and did injure, embarrass and humiliate petitioner by making it an object of public ridicule, scorn and approbation, thereby damaging petitioner’s business and reputation.
“2. Defendant law firm was aware of and did cooperate with, advise and assist defendant Better Business Bureau of Baton Rouge, Inc. in their common design to restrain trade and/or commerce by defaming petitioner and by attempting to force petitioner out of business by maliciously and recklessly causing a complaint to be filed with the defendant Governor’s Office of Consumer Protection, alleging that petitioner has been guilty of unlawful and/or unfair trade practice in spite of the fact that defendant either knew or should have known that such allegations were untrue and unfounded, which complaint caused further damage to petitioner, all as shown by a copy of a letter dated February 20, 1975, from Jim Kolter, president of the Better Business Bureau of Baton Rouge Area, Inc. which shows that Bob Breazeale, partner in defendant law firm and board member of defendant Better Business Bureau of Baton Rouge Area, Inc. was copied on same, all as shown by a copy of said letter attached hereto and made a part hereof.
“3. Plaintiff further shows that defendant law firm further participated in committing injury against plaintiff and in further attempting to restrain trade or commerce by cooperating in, advising in and assisting in the preparation of and publication of a second special bulletin, dated May 15, 1975, which bulletin improperly commented upon the instant litigation and was intended to cause and did cause further embarrassment, humiliation and loss of business to your petitioner, inasmuch as said bulletin was widely disseminated over the Greater Baton Rouge area and was in particular disseminated to other businesses, which same of which businesses thereafter refused to do credit business with your petitioner and some of which refused to handle paper for plaintiff’s customers.
“4. Other acts in which defendant law firm cooperated with, advised in and assisted in, which acts are unknown to petitioner, but well known to defendant law firm, the Better Business Bureau of Baton Rouge Area, Inc. and the other co-defendants in this law suit and all of which acts were calculated to and did cause injury to your plaintiff and all of which acts constituted an attempt to restrain trade and/or commerce, by a combination bent on putting your petitioner out of business.”

A second exception of no cause of action was filed and sustained, and plaintiff’s suit dismissed as to Breazeale, Sachse and Wilson. This appeal followed.

It is fundamental that for the purposes of consideration of an exception of no cause of action, all well pleaded allegations of fact are considered as true, and we must determine if a remedy is afforded to any one under the circumstances alleged, under any theory of the case. Articles 862, 927, 931, Code of Civil Procedure. Saragusa v. Dipaola, 247 So.2d 400 (La.App. 1 Cir. 1971).

R.S. 51:122 provides:

“Every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce in this state is illegal.
“Whoever violates this Section shall be fined not more than five thousand dollars, or imprisoned, with or without hard labor, nor more than three years, or both.”

R.S. 51:137 provides:

“Any person who is injured in his business or property by any person by reason of any act or thing forbidden by this Part may sue in any court of competent jurisdiction and shall recover threefold the damages sustained by him, the cost of suit, and a reasonable attorney’s fee.”

Article 2324 of the Civil Code provides:

“He who causes another person to do an unlawful act, or assists or encourages in the commission of it, is answerable, in solido, with that person,, for the damage caused by such act.”

In Louisiana, if a conspiracy to do an unlawful act is entered into by two or more persons, and one of them does an act in furtherance thereof, all of the conspirators may be held civilly liable for damages to a third party resulting therefrom. Article 2324, Civil Code, supra; Tabb v. Norred, 277 So.2d 223 (La.App. 3 Cir. 1973).

In this case, plaintiff has alleged that Bob Breazeale, a partner in the defendant law firm, met with the president of the Better Business Bureau, and aided, assisted and cooperated in the preparation and publication of a bulletin containing false and misleading information, which resulted in damages to the planntiff.

Defendant argues that Mr. Beazeale was acting in his capacity as attorney for the Better Business Bureau; that the substance of his conversation with the president of the Bureau was privileged, and could never be divulged; and that the allegations as to what occurred therein could never be proven.

This argument is without merit. We are not concerned with whether the plaintiff can prove the allegations of his petition, or whether he can win his case. We need only determine whether, if as alleged, Mr. Breazeale assisted and advised in the publication of libelous or defamatory material, defendants would be liable for any damages suffered by plaintiff as a result.

We think it clear that liability would arise under the above circumstances, under the provisions of Article 2324, supra, and find that plaintiff has alleged a cause of action. We need not consider the sufficiency of the other allegations made, since if the petition states a cause of action in any respect, the judgment of dismissal must be reversed.

The judgment appealed from is therefore reversed and the case remanded to the trial court for further proceedings in accordance with law. Breazeale, Sachse and Wilson are granted 15 days from the date this judgment becomes final within which to file answer. All costs of this appeal are to be borne by Breazeale, Sachse and Wilson. All other costs shall await final determination of this case on its merits.

REVERSED AND REMANDED.


author: SARTAIN, Judge.

text:
    Vincent J. BELL v. FIAT DISTRIBUTORS, INC., et al.
    No. 10683.
    Court of Appeal of Louisiana, First Circuit.
    April 12, 1976.

      Phil Breaux, Baton Rouge, for appellant.
    Robert H. Wood, Jr. and Lawrence F. Babst, New Orleans, for appellees.
    Before SARTAIN, ELLIS and EDWARDS, JJ.
   SARTAIN, Judge.

Under the exercise of our supervisory jurisdiction we granted writs in the instant case to examine the ruling of the trial judge sustaining a declinatory exception of improper venue filed on behalf of two defendants herein.

The succinct facts relevant to this matter are that plaintiff filed suit in the 19th Judicial District Court for the Parish of East Baton Rouge against four defendants all of whom he alleged to be jointly and solidarily liable to him in redhibition as a result of the sale of a defective automobile. Defendants Fiat Distributors, Inc. (hereinafter referred to as Fiat) and Roy Mc-Griff’s Design Aire, Inc. (hereinafter referred to as Design Aire) are both alleged to be foreign corporations not licensed to do business, but in fact doing business, in the State of Louisiana. Defendant James J. Bryan is alleged to be a resident of Jefferson Parish, while defendant Jefferson Parish Enterprises, Inc., d/b/a Bryan Motors (hereinafter referred to as Bryan Motors) is alleged to be a domestic corporation in liquidation. Defendants Bryan and Bryan Motors were served in Jefferson Parish. Plaintiff attempted to serve defendant Fiat, but after diligent search and inquiry could find no one authorized to represent said defendant, and thus service was effected through the Secretary of State. There is no evidence of service on defendant Design Aire contained in the record.

Defendants Bryan and Bryan Motors, both Louisiana defendants domiciled in parishes other than East Baton Rouge, objected to suit being brought in East Baton Rouge Parish claiming that none of the venue provisions in Louisiana law permits suit against them in that forum.

Plaintiff argues, however, that suit against defendant Fiat was properly brought in East Baton Rouge Parish and therefore venue is proper as to all other defendants solidarily liable pursuant to Louisiana C.C.P. Art. 73, which states in pertinent part:

“Art. 73. Action against joint or solida-ry obligors
An action against joint or solidary ob-ligors may be brought in any parish of proper venue, under Article 42, as to any obligor who is made a defendant.”

The trial judge in written reasons concluded that jurisdiction over the foreign corporate defendants herein was based on L.R.S. 13:3201, et seq. Accordingly, he concluded that La.C.C.P. Art. 73 could not be used by plaintiff to obtain venue on the resident defendants since that article requires venue on at least one defendant be derived from La.C.C.P. Art. 42. Venue as to defendant Fiat, a foreign corporation, was, he concluded, based on venue provisions other than La.C.C.P. Art. 42 inasmuch as the venue provisions of that article are specifically excluded from the scheme of L.R.S. 13:3201, et seq. by L.R.S. 13 :3203, which states:

§ 13:3203. Venue

A suit on a cause of action described in R.S. 13:3201 may be instituted in the parish where the plaintiff is domiciled, or in any parish of proper venue under any provision of the Louisiana Code of Civil Procedure other than Article 42.

We disagree with the trial judge’s conclusion that jurisdiction over the foreign corporate defendants in the present case is based upon L.R.S. 13:3201, et seq. When jurisdiction is founded upon the provisions of those statutes service of process must be effected in accordance with L.R.S. 13:3204, that is, by registered mail or actual delivery by an authorized individual. There is no evidence herein of service pursuant to those requirements.

Evidence in the record is to the effect that after diligent search and inquiry for an authorized agent for service of process within the state and finding none, service was then effected on the Secretary of State. Such service on foreign corporations not required by law to appoint agents for service of process is authorized by L. R.S. 13:3471(1) in suits arising out of the business activities of those corporations.

We respectfully disagree with the trial judge’s conclusion that L.R.S. 13:3471(1) is merely a service of process statute. The provisions of that article state:

§ 3471. Supplementary rules of service of process
The following rules supplement those governing the service of citation and other legal process in a civil action or proceeding contained in the Code of Civil Procedure:
(1) If the foreign corporation is not one required by law to appoint an agent for the service of process, but has engaged in a business activity in this state, service of process in an action or proceeding on a cause of action resulting from such business activity in this state, or for any taxes due or other obligations arising therefrom, may be made on any employee or agent of the corporation of suitable age and discretion found in the state. If such employees or agents are no longer in the state, or cannot be found after diligent effort, the officer charged with the duty of making the service shall make his return to the court, stating the efforts made by him to secure service and the reason why he was unable to do so. Thereupon the court shall order that service shall be made on the secretary of state, or on some other individual in his office whom the secretary of state may designate to receive service of process. The secretary of state shall ascertain the domiciliary post office address of the corporation, and shall send the original papers served to the corporation by registered mail, with return receipt requested. The secretary of state shall retain in his office true copies of these papers, on which he shall note the date, the manner and other particulars of the service, and of the disposition made of the original papers.

When read in conjunction with La.C.C.P. Art. 6(1), it becomes clear that L.R.S. 13:3471(1) is intended to provide jurisdiction over foreign corporations with no designated agent for service of process. We held in Terasse v. Wisconsin Feeder Pig Marketing Coop., 202 So.2d 330 (La.App., 1st Cir., 1967) that the intent of L.R.S. 13:3471(1) was to grant to the courts of this state the broadest possible scope of personal jurisdiction, within the bounds of due process of law, over foreign corporations with no agents for service of process in the state. When the legislature adopted L.R.S 13:3201, et seq., it is obvious that they intended to preserve this alternative source of jurisdiction, which intent is specifically expressed in L.R.S. 13:3207, as follows:

§ 3207. R.S. 13:3201-13:3206 provide additional remedies; no conflict with certain code and statutory provisions
R.S. 13:3201 through 13:3206 provide additional remedies, and do not in any way affect, conflict with, modify, or repeal any code article or statute providing any other remedy, including without being limited to any of the provisions of the Louisiana Code of Civil Procedure, R.S. 13:3471(1), * * *.

Accordingly, in the present case, we conclude that service was effected pursuant to L.R.S. 13:3471(1) and thus through La.C.C.P. Art. 6(1) the State of Louisiana obtained jurisdiction over defendant Fiat.

We turn now to the determination of whether or not East Baton Rouge is the parish of proper venue. La.C.C.P. Art. 42(5) states:

“Except as otherwise provided by R.S. 13:3471(1), a foreign corporation not licensed to do business in the state, or a nonresident who has not appointed an agent for the service of process in the manner provided by law, other than a foreign or alien insurer, shall be brought in a parish where the process may be, and subsequently is, served on the defendant

The trial judge concluded that the above cited provisions excluded the use of 42(5) when the provisions of L.R.S. 13:3471(1) are invoked. We disagree with this conclusion for several reasons.

The introductory paragraph of L.R.S. 13:3471 clearly states that its provisions are to supplement those of the Code of Civil Procedure. The trial judge’s conclusion would have L.R.S. 13:3471 supercede rather than supplement. We further note the reporter’s comments following La.C.C. P. Art. 42 indicating that the subsequent amendment which incorporated the reference to L.R.S. 13:3471(1) into La.C.C.P. Art. 42 was done to avoid the possibility of any conflict between the two statutes. Lastly, we note that if the trial judge’s conclusions were correct there would be no proper place of venue where service was had pursuant to L.R.S. 13:3471(1) when the cause of action asserted is based on obligations arising out of contractual business activities and not otherwise covered by any specific venue articles in the Code of Civil Procedure (i. e., immovable property, La. C.C.P. Art. 80).

We conclude that the reference to L.R.S. 13:3471(1) in La.C.C.P. Art. 42 was incorporated therein to specifically permit service pursuant to L.R.S. 13:3471(1). Otherwise, one might conclude from La.C. C.P. Art. 42 that actual service on the defendant corporation within the state would be necessary in order that the suit be proper. For this reason, it appears the legislature specifically included L.R.S. 13:3471(1) within the scheme of La.C.C.P. Art. 42.

Under La.C.C.P. Art. 42(5) where service has been effected pursuant to L.R. S. 13:3471(1), venue would be proper in the present case as to defendant Fiat in East Baton Rouge Parish, since that is the situs of the Secretary of State, upon whom service was made. Having found venue proper as to defendant Fiat under Article 42, venue becomes proper as to defendants Bryan and Bryan Motors under La.C.C.P. Art. 73 as alleged solidary obligors.

Accordingly, for the above reasons, the writ issued herein is made peremptory and the ruling of the trial court sustaining defendants’, James J. Bryan and Jefferson Parish Enterprises, Inc., d/b/a Bryan Motors, declinatory exceptions of venue is overruled. All costs of these proceedings relating to the instant writ are assessed against these defendants. All other costs are to await a final determination on the merits.

WRIT MADE PEREMPTORY.

      . Art 6. Jurisdiction over the person.
      Jurisdiction over the person is the legal power and authority of a court to render a personal judgment against a party to an action or proceeding. This jurisdiction must be based upon:
      (1) The service of process on the defendant, or on his agent for the service of process; * * *


author: LANDRY, Judge.

text:
    SOMETHING IRISH CO. v. Norman and Lillian RACK.
    No. 10779.
    Court of Appeal of Louisiana, First Circuit.
    March 25, 1976.

      Lionel F. Price, New Orleans, for appellant.
    Bernard S. Smith, Covington, for appel-lee.
    Before LANDRY, COVINGTON and PONDER, JJ.
   LANDRY, Judge.

An ex proprio motu order issued herein directing defendants-appellants, Norman and Lillian Rack (Appellants) to show cause why their appeal in this matter should not be dismissed for failure to timely file an appeal bond. In response to our order, Appellants have moved that the motion to dismiss be set for oral argument. We deny the motion for oral argument and dismiss the appeal.

On July 25, 1975, judgment by default was rendered in favor of plaintiff and against Appellants ordering Appellants’ eviction from premises leased from plaintiff and awarding plaintiff recovery of past due rent. The judgment was signed that same day. Appellants timely filed a motion for new trial which motion was denied September 22, 1975. On November 14, 1975, Appellants obtained an order for a devolutive appeal which decree fixed a return date and set the appeal bond in the sum of $800.00. The appeal bond was filed January 13, 1976, more than ninety days after denial of Appellants’ motion for new trial.

The taking and perfection of a devolu-tive appeal are provided for in La.C.C.P. Articles 2087 and 2088. In general Article 2087 provides that a devolutive appeal must be taken within ninety days of (1) the expiration of the delays for applying for a new trial, as provided for by La.C.C.P. Article 1974, if no application for new trial is timely filed; (2) the court’s refusal to grant an application for new trial if applicant is not entitled to notice of such refusal pursuant to La.C.C.P. Article 1914 or (3) the date of mailing of notice of the court’s refusal to grant a new trial, if applicant is entitled to such notice pursuant to Article 1914.

Pursuant to La.C.C.P. Article 2088, the jurisdiction of the trial court over all matters in a case reviewable on appeal is divested, and the jurisdiction of the appellate court attaches, on the timely filing of the appeal bond or, if no bond is required, on the granting of the order of appeal. Thereafter, the trial court retains no jurisdiction of an appealed decision except in the eight categories specified in Article 2088, none of which exceptions are germane to the issue at hand.

Appellants’ motion for new trial was not taken under advisement, but was denied immediately following its hearing on September 22, 1975. The delay for taking this appeal, therefore, began to run on that date and expired ninety days thereafter, on December 21, 1975, a Sunday. Because the delays expired on Sunday, a legal holiday, the period was extended to the following day, Monday, December 22, 1975. While the order of appeal was obtained herein on November 14, 1975, the required appeal bond was not filed until January 13, 1976.

Conceding that their appeal bond was not timely filed as required by Article 2087, Appellants nevertheless claim the absolute right to appeal on the following constitutional and equitable grounds: (1) La. Const. 1974, Article I, Sections 19 and 22, guarantee litigants the rights of judicial review and free access to the courts, which fundamental rights should not be limited or restricted by statutory provisions; (2) a proper interpretation of Article 2088 dictates that appellate jurisdiction attaches upon either the obtaining of an order of appeal or the filing of an appeal bond and not upon the occurrence of both events; (3) Appellate jurisdiction of all civil matters is granted to the courts of appeal pursuant to La.Const. 1974, Article V, Section 10, which jurisdictional grant should not be legislatively restricted; and (4) Appellants were unable to post bond within the legally prescribed delay period because of financial difficulties and the economic necessity of Appellant Norman Rack’s being out of the state during the bond posting delay period.

Our jurisprudence has repeatedly held that to perfect an appeal, appellant must both obtain an order of appeal and post bond before the expiration of the ninety day delay period prescribed in Article 2087. Failure to timely post bond has been held, in innumerable instances, to require dismissal of the appeal for failure of jurisdiction of the appellate court to attach. Wright v. Mark C. Smith & Sons, La., 283 So.2d 85; Malone v. Malone, La., 282 So.2d 119; Pan American Petroleum Corporation v. Cocreham, 251 La. 705, 206 So.2d 79; McCarstle v. McCarstle, La. App., 317 So.2d 306; Safeco Insurance Company v. Blackwell, La.App., 288 So.2d 85; Phillips v. Bergeron, La.App., 263 So. 2d 72; Clements v. Kimble, La.App., 239 So.2d 704; Michigan Wisconsin Pipe Line Company v. Guarisco Enterprises, Inc., La.App., 234 So.2d 469.

We are keenly aware and zealously protective of the rights of judicial review and free access to the courts granted by La.Const.1974, Article I, Sections 19 and 22. However, we do not agree with Appellants’ argument that said rights are totally without legislative regulation and that the legislature lacks authority to prescribe reasonable rules governing the procedure by which said rights may be exercised. In this regard we note the following comments appearing in Douglas Public Service Corp. v. Gaspard, 225 La. 972, 74 So.2d 182, which involved dissolution of a temporary restraining order and dismissal of plaintiff’s suit for a preliminary injunction in a labor dispute:

“For the courts to function in an orderly manner, and with equal protection to all, the Constitution not having provided otherwise, it became necessary for the legislature to establish the rules and regulations that would govern the procedure to be followed by those seeking this guaranteed protection, including the issuance of all needful writs and processes. Such procedural statutes will be upheld in our courts so long as they do not violate our basic law.”

We reject Appellants’ premise that any attempt to restrict the time for perfecting an appeal is constitutionally prohibited. It is elementary that in the interest of order and certainty, all judgments must eventually acquire finality. We do not deem the ninety day limitation for perfecting an appeal as established by Article 2087 to be so restrictive or unreasonable as to violate a litigant’s constitutional right to judicial review and free access to the courts. See Ball v. Serpas, La.App., 248 So.2d 335.

Appellants’ proposed interpretation of Article 2088 is, in our view, without support based on the language of the article. In clear terms the article provides the circumstances necessary for appellate jurisdiction to attach in each of two instances. When an appeal bond is required, appellate jurisdiction attaches only upon the timely filing of the bond. Where no appeal bond is required, appellate jurisdiction attaches upon the granting of the order of appeal.. In this case bond was required; therefore, appellate jurisdiction could not attach until the bond was filed.

We also find no merit in Appellants’ argument that the constitutional grant of appellate jurisdiction to our courts of appeal may not be restricted or impeded legislatively to any extent whatsoever. Again we note the practical considerations of the interests of order in the judicial process and the absolutely compelling need for finality of judgments. We are of the view that in the absence of a clear and express constitutional mandate to the contrary, the legislature possesses the power to regulate the circumstances under which the jurisdiction of courts may be exercised. We see no violation of the constitutional grant of appellate jurisdiction in those instances of legislative regulation which serve a useful purpose and which, at the same time, afford a litigant reasonable opportunity, time and method of invoking the appellate process.

We find these views in keeping with the general rule that legislatures may adopt procedural rules so long as they do not defeat or materially impair constitutionally granted jurisdiction or functions. See 21 C.J.S. Courts § 122, page 186, and authorities cited thereunder. We find no material impairment in this instance.

Appellants’ claim of inability to post bond because of financial distress is likewise without merit. La.C.C.P. Articles 5182-5188, inclusive provide authority for indigent parties to litigate without prior payment of costs. Article 5185 expressly authorizes an- indigent to prosecute a de-volutive appeal without payment of costs. This provision has been interpreted to dispense an indigent from furnishing bond for a devolutive appeal. Brumfield v. Community Mobile Homes, Inc., La.App., 315 So.2d 901; Wilkerson v. Luneau, La.App., 198 So.2d 183. Appellants could have timely applied for the right to appeal without furnishing bond.

This appeal is dismissed at Appellants’ cost.


author: SHORES, Justice.

text:
    ALLSTATE LIFE INSURANCE COMPANY, INC. v. Ann STEPHENS.
    SC 1653.
    Supreme Court of Alabama.
    June 4, 1976.
    Rehearing Denied July 2, 1976.

      Camp, Williams & Spurrier and Benjamin R. Rice, Huntsville, for appellant.
    Carnes & Carnes, Albertville, for appel-lee.
   SHORES, Justice.

The following facts were stipulated:

On September 24, 1970, Allstate issued a policy of life insurance insuring the life of Roy Lee Arthur Stephens. Ann Smith Stephens, wife of the insured, was named beneficiary. The policy had a face amount of $10,000, and the monthly premium was $17.40.

An initial payment of $34.80 was made by the insured at the time the application for the policy was completed. Thereafter the insured paid his premiums through the “check plan,” Allstate sending a draft to his bank on the first of each month beginning November 1, 1970, through November 1, 1973. All of these drafts were honored. Drafts for December, 1973, and January, 1974, were not honored by the bank. No premiums after November 1, 1973, were received by Allstate.

In November, 1973, the insured obtained a loan on the policy in the amount of $132.90. This loan was never repaid. The insured died August 7, 1974.

The beneficiary, Mrs. Stephens, brought suit on the policy following the death of the insured. The trial court found in favor of the beneficiary and Allstate appealed.

The single issue involved is whether the policy provided for extended term insurance upon lapse; and, if it did, whether the fact that there was no cash value at the time of the lapse affected this option, the cash value having been borrowed by the insured under the loan provisions of the policy.

In the body of the policy, the following appears:

“OPTIONS ON LAPSE
“If any premium due while this Policy has a cash value is not paid by the end of the grace period by automatic premium loan or otherwise, Option B shall be immediately effective as described below. However, Option A may be elected, in place of B, within 60 days after the due date of the premium first in default.
“A. Surrender for Cash — To surrender this Policy for its cash value less any indebtedness.
“B. Reduced Paid-up Life Insurance —To continue this Policy as paid-up life insurance for a reduced amount. The amount shall be such as the cash value less any indebtedness to the Company shall provide when applied as a net single premium.”

Extended term insurance is not mentioned in the body of the policy as one of the options available on lapse. However, the policy contains a page headed “TABLES OF NONFORFEITURE VALUES FOR EACH $1000 OF INSURANCE.” The values listed on that page are:

"Cash or Reduced Extended Term
Loan Paid up Insurance for
Value Insurance Years Days"

The insured was 31 years of age when the policy was issued. Under the column headed “Extended Term Insurance .” on the page of tables, the table shows that at age 31, the insured would have been entitled to 3 years and 201 days of extended term insurance on the date of the lapse. The trial court noted in its judgment that the only place in the policy where extended term insurance is mentioned is in these tables. It concluded that those tables must be given some force and effect. It was the trial court’s judgment that if no extended term insurance was intended to be provided, it should not have been listed in the tables. We agree. It has been said too often to require repeating that the insurer writes the policies, and when ambiguity results, such ambiguity must be resolved against the insurer. Here, there is an obvious ambiguity between the options offered in the body of the policy and the tables of nonforfeiture values. We agree with the trial court that if the company did not intend to offer extended term insurance as one of the options available to the insured upon lapse, then it should not have included any reference to this option in the tables included in the policy it issued to the insured.

However, we cannot agree with the trial court’s conclusion that “. . . At no place in the policy does it provide that indebtedness of insured to insurer shall in any way affect the duration of extended term insurance . .

It is true that the only place in the policy that extended term insurance is mentioned is in the tables of nonforfeiture values. That is sufficient, as the trial court determined, to conclude that that option was intended to be offered. However, on the same page, the only page having any reference to extended term insurance as an option, the following appears:

“The values for this Policy are in the Table below headed by the ‘Age at Issue’ corresponding to the age at which this Policy is issued and which appears on Page 1. The values apply on the policy anniversary indicated, assuming that all premiums up to such anniversary have been paid and that there is no indebtedness. Durations of Extended Term Insurance are the same regardless of amount.” (Emphasis Supplied)

We must read every provision of the policy; and, if the option offered is conditioned in any specific way, then we must give effect to any condition clearly provided in the policy.

There are two options contained in the body of the policy-—Surrender for Cash and Reduced Paid Up Life Insurance —and both provide that such options are to be determined “less any indebtedness to the company.” Extended term insurance is offered as an option only in ■ the tables of nonforfeiture values. That page clearly contains a similar condition, less any indebtedness due the company. While the language on the tables is slightly different, i. e., “assuming that all premiums up to such anniversary have been paid and that there is no indebtedness,” the meaning is the same. At the least, the phrase “assuming . . . that there is no indebtedness” appearing on the page of tables, it is sufficiently clear to indicate that the company was offering extended term insurance for the number of years and days set out in the tables on the anniversary date, to the extent that there was a cash or loan value on the date that the policy lapsed in excess of any indebtedness owed the company.

Under the facts as stipulated in this case, premiums for December, 1973, and January 1974, were not paid. The last premium was paid in November, 1973. All of the cash value was borrowed by the insured in November, 1973. There was no cash value at the time the policy lapsed.

Alabama Nat. Life Insurance Company v. Smith, 214 Ala. 585, 108 So. 524 (1926), involved a policy which provided that “ ‘If any premium shall not be paid on or before the date when due, and if there be no indebtedness to the company . the insurance will either continue from said due date as term insurance for the original amount, during the term including the period of grace specified in column (3) of the accompanying table .’” (Emphasis Supplied) (214 Ala. at 585, 586, 108 So. at 524). The insured under that policy borrowed the cash or loan value of the policy one month after paying the annual premium for the third year. The premium for the fourth year was not paid. This court, speaking through Justice Bouldin, held that, there being no loan value at the end of the third year, there was nothing that could be used as a premium to extend the policy, noting:

“True, the contract must be construed favorably to the insured, and if the insurer has so written it as to reasonably import a liability, he should be held to it. The nonforfeiture clause does, in its opening words, indicate a loan value after 'premiums have been paid for two or more years’; but the same clause limits its extended insurance provisions to the loan values, not there given, but expressly fixed in other clauses of the contract. . . .” (214 Ala. at 586, 108 So. at 525)

In the present case, the only reference to extended term insurance is found on the page containing the tables of values. That same page provides that such value is available assuming there is no indebtedness to the company. We cannot say that one provision on this page extends to the insured without the other.

The trial court found Francis v. Prudential Ins. Co., 243 Pa. 380, 90 A. 205 (1914), persuasive. The policy in that case contained a specific provision affording extended term insurance, but it contained no provision about loans operating to reduce the term of extended term insurance. There, the court said:

"... We have carefully read this argument without being convinced that the indebtedness to the company at the time of the lapse operated to reduce the term of extended insurance, or that the plain and unambiguous terms of the policy mean anything of the kind. . The answer to this contention is that the policy contains no such provision ...” (243 Pa. at 389, 90 A. at 208)

The policy in the case before us does contain such a provision, and is on the same page which offers the only reference to extended term insurance. We are compelled to give some meaning to this provision.

REVERSED AND REMANDED.

HEFLIN, C. J., and MERRILL, MADDOX and JONES, JJ., concur.


author: MERRILL, Justice. JONES, Justice

text:
    FIRST SOUTHERN FEDERAL SAVINGS AND LOAN ASSOCIATION OF MOBILE, a corporation v. William K. NICROSI.
    SC 1520.
    Supreme Court of Alabama.
    May 28, 1976.
    Rehearing Denied July 2, 1976.

      . Since the court was reduced to six judges because of disqualification, the concurrence of four judges is sufficient. Tit. 13, § 14, Code 1940, as amended.

   MERRILL, Justice.

The plaintiff-appellee, William K. Nicro-si, filed suit against the appellant, First Southern Federal Savings and Loan Association, a Corporation [hereinafter “First Southern”]. His claim consisted of one count — a demand of $48,500.00 for services he rendered to First Southern. Judgment was entered in favor of Nicrosi in the amount of $32,095.00. First Southern appeals. We affirm.

Nicrosi is a licensed real estate broker whose assistance was enlisted by General Deichelmann, Vice-President of First Southern. Nicrosi was to attempt to secure a new location for First Southern. On August 1, 1974, Nicrosi received a letter from Deichelmann authorizing him to help First Southern negotiate the purchase of the Greystone Hotel building, which was no longer used as a hotel. Prior to this, the record reveals that Nicrosi had negotiated with several companies on renovation estimates and had arranged for the property to be appraised; he had also made preliminary inquiries into the availability of several other suitable pieces of property. (The appraised value of the Greystone was between $485,000.00 and $545,000.00.)

Nicrosi had no written contract with First Southern or Deichelmann, but there is no question that he was employed by First Southern to help find adequate quarters. He contacted John Neill, President of Union Bank & Trust Co. [hereinafter “Union Bank”], which owned the Grey-stone, to see if it was available for sale.

Subsequent to Nicrosi’s visit to Neill, First Southern authorized Nicrosi to offer Union Bank $485,000.00 for the Greystone, on a cash basis. After deliberation, the Board of Directors of Union Bank authorized Neill to sell at a price of $503,055.12, ranging down to a floor of $485,000.00. Neill notified Nicrosi that the Bank would not accept an initial offer of $485,000.00, but would accept $503,500.00. (The bank was carrying the Greystone on its books for roughly that amount.)

Nicrosi asked Neill for two letters, one offering the building at a gross price of $530,000.00 and that Union Bank would pay Nicrosi’s commission; the other stated that the Bank would pay a commission of $26,500.00. Nicrosi gave Deichelmann a copy of the first letter. First Southern refused to pay more than $485,000.00, and a cash sale was finally made at that price. Subsequently, Nicrosi billed First Southern for $29,100.00 as charges for his services.

In later negotiations between First Southern and Nicrosi regarding the latter’s compensation, Nicrosi was offered $2,500.-00 to $10,000.00 by First Southern. After refusing to accept offers made by First Southern, Nicrosi filed this suit demanding $48,500.00 as the reasonable value of his services. The court found for Nicrosi in the sum of $32,095.00. A motion for a new trial was overruled.

First Southern proffers two issues on appeal. First, it contends that the lower court entered judgment against the great weight and preponderance of the evidence. Second, it contends that the lower court erred in finding that during the course of Nicrosi’s employment by First Southern that he had acted in good faith toward his employer.

In W. T. Ratliff Co. v. Purvis, 292 Ala. 171, 291 So.2d 289, certain principles are stated which are applicable here:

A verdict is presumed to be correct.

The refusal of the trial court to grant a new trial because of the insufficiency of the evidence strengthens the presumption that the verdict is correct.

Where, on appeal, the sufficiency of the evidence to support the verdict is at issue, only those tendencies of the evidence most favorable to the verdict are reviewed; and such inferences as the jury [or here, the court] was free to draw are indulged.

A motion for a new trial is properly overruled where there is credible evidence which justified the verdict.

A verdict will not be set aside because it is contrary to the mere preponderance of the evidence.

Here, the finding of the court was supported by credible and substantial evidence. Substantial evidence is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Ex parte Morris, 263 Ala. 664, 83 So.2d 717 (1955); Turner v. Ribicoff, 224 F.Supp. 284 (1963).

Some of the substantial evidence is listed. In the fall of 1973, First Southern hired Nicrosi, a licensed real estate broker, to secure “larger corporate quarters in Montgomery.” He investigated numerous locations and First Southern preferred the Greystone Hotel building. Nicrosi investigated the accessibility and visibility of the Greystone, obtained renovation information from an architectual firm, obtained information for a modernizing feasibility-study from Otis Elevator Co., Triangle Electric Co. and Capital Refrigeration Co., investigated the availability of parking, and secured an appraisal from a qualified real estate broker, who appraised the property at $485,000.00 to $545,000.00. At the conclusion of his investigation, Nicrosi was authorized in writing “as our representative, to negotiate the purchase of the former Greystone Hotel Building, from the Union Bank & Trust Company. * * * Please keep the names of Security Federal and First Federal Savings and Loan Association of Mobile confidential until a reasonably firm agreement is reached, if possible.” Also, the sales agreement, dated August 22,1974, provided in § 10:

“Both parties agree that this sale was brought about by William Nicrosi, acting for the Purchaser. The Purchaser shall pay any compensation due him.”

This sales agreement was signed after the conclusion of all negotiations between the parties. Each party recognized that Nicro-si was the party who “brought about the sale.” The purchase price was the very least which Union Bank would accept and was the floor price which had been quoted to Nicrosi.

Both parties to this sale agreed that the “Purchaser shall pay any compensation due him.” We stress again that this sales agreement was not executed at the beginning or the middle of the negotiations but at the end, shortly before the exchange of the purchase money and the deed.

The dispute arose between First Southern and! Nicrosi as to amount of the compensation to be paid to Nicrosi. The dispute was settled by the trial court after hearing all the testimony and the arguments of the parties.

The argument that Nicrosi did not spend many days and hours on the project, and thus was not entitled to as large a fee as was awarded, is not persuasive. It is common knowledge that compensation to realtors in deals similar to this are based upon a percentage of the sales or purchase price. This practice is not limited to real estate transactions, but is prevalent in other trades and professions.

When the evidence is heard orally before the trial court, the finding of the court has the effect of a jury’s verdict and will not be disturbed on appeal unless plainly erroneous or manifestly unjust. And we must affirm the trial court’s decree if fairly supported by credible evidence under any reasonable aspect, regardless of what might be our view of the evidence. Daugherty v. Gulf Shores Motel, Inc., 292 Ala. 252, 292 So.2d 454; Dunlavy v. Dunlavy, 283 Ala. 303, 216 So.2d 281.

These same legal principles apply to the trial court’s finding that “During the course of said employment, the Plaintiff [Nicrosi] acted at all times in good faith in his dealings with said Defendant.”

AFFIRMED.

HEFLIN, C. J„ and BLOODWORTH and EMBRY, JJ., concur.

MADDOX, FAULKNER and SHORES, JJ., recuse themselves.

JONES, J., dissents.

ALMON, J., not sitting.

JONES, Justice

(dissenting):

This is a suit by a real estate agent against his principal where the facts show, without dispute, about as clear a case of bad faith as one could imagine. The fact that the principal, First Southern Federal, eventually acquired the property for approximately their initial offer of purchase from the seller should not influence the result. Nicrosi was Southern Federal’s agent. This agency relationship imposed the legal requirement that Nicrosi faithfully disclose to his principal all of the relevant facts and circumstances surrounding the transaction. Surely, no citation of authority is needed for the proposition that the general law of agency prohibits dual representation here typified by the undisputed evidence.

My objection with the majority opinion is its application of the ore tenus scope of review rule to the trial Court’s judgment that Nicrosi was not guilty of bad faith in his dealing with Southern Federal. The ore tenus rule applies only to the trial Judge’s factual findings on disputed evidence. Sterling Oil of Oklahoma v. Pack, 291 Ala. 727, 287 So.2d 847 (1973). The trial Court’s ruling on Nicrosi’s bad faith, however, was not such a finding. The evidence of Nicrosi’s bad faith is virtually undisputed. The trial Judge’s ruling did not result from a choice between different versions of the facts; rather, it resulted from an application of established legal principles to an undisputed set of facts. Such a ruling is fully reviewable regardless of the mode of trial held' below.

In order to address the trial Judge’s error, I will first set out the evidence of bad faith and then review the principles of law which govern that set of facts. Nicrosi was employed to assist Southern Federal secure a new location. During the course of Nicrosi’s employment, Southern Federal authorized Nicrosi to approach Union Bank for the purchase of a building called the Greystone Hotel in Montgomery. Based on an appraisal opinion that the Greystone had a value range of between $485,000 and $545,000, Southern Federal authorized Nicrosi to offer Union Bank $485,000 for the property. Nicrosi transmitted this offer to Union Bank’s president, Mr. Neill, who in turn presented the offer to Union Bank’s Board of Directors for approval. The Board authorized Neill “to sell the Greystone Hotel for $503,055.-12 down to $485,000.” Neill told Nicrosi that the Bank would not accept Southern Federal’s $485,000 initial offer, but would accept an offer of $503,500.

One week after Neill had given Nicrosi the price of $503,500, Nicrosi called Neill and asked him for two letters — one saying the Bank would sell the Greystone for $530,000 gross and pay Nicrosi’s commission, and the other saying the Bank would pay Nicrosi’s commission of $26,500. Ni-crosi only gave Southern Federal one of those two letters — the one which said the Bank would sell for $530,000 gross and pay his commission. Nicrosi did not give Southern Federal the other letter which gave the figure of $503,500, the selling price for the building, nor did he otherwise inform Southern Federal of this fact. On August 13, 1974, Nicrosi wrote Southern Federal a letter in which he stated nothing about his commission of $26,500. This nondisclosure to Southern Federal, Nicro-si’s principal, is the essence of Nicrosi’s bad faith. The rule in broker’s fee cases is quite clear:

“A real estate agent must be faithful to his principal; he must not be disloyal; he must act in good faith with him; he must represent the interests of his principal; and, if he is guilty of bad faith with his principal in the transaction of the business for which he is to receive commissions, he thereby forfeits his compensation.” Berry v. Marx, 206 Ala. 619, 91 So. 583 (1921).

This rule is simply a specific application of general agency law. By reference to the law of agency, it is clear that Nicrosi’s failure to make a complete disclosure to Southern Federal of his negotiations with Union Bank amounted to bad faith toward Southern Federal. The effect of Nicrosi’s dealings with Union Bank was to make himself an agent for both parties. By obtaining the counteroffer of $530,000 with a $26,500 fee provision from Union Bank Nicrosi became the agent of Union Bank for the purpose of persuading Southern Federal to accept that counteroffer. Since Nicrosi did not reveal the full details of the arrangement to Southern Federal or tell Southern Federal of Union Bank’s original counteroffer of $503,500, he concealed the fact that he was actually an agent for both parties. The law of agency precludes a broker from serving two principals without making full disclosure to both of them. If a broker breaches this duty of disclosure, he forfeits his right to compensation. Green v. Southern States Lumber Co., 163 Ala. 511, 50 So. 917 (1909). A strong and unequivocal statement of this rule is found in Gray v. Pan-key, 211 Ala. 539, 100 So. 880 (1924) :

“A broker or agent, who acts for both the vendor and the vendee to a sale and purchase of real estate, is guilty of fraud which will prevent him from recovering commissions or compensation from either. The broker or agent ‘can only avoid its effect to deny him compensation by showing that both parties knew of his relation in the premises, and, so knowing, consented to his acting in such inconsistent capacities.’ He must show ‘both principals are given fully to understand the situation and consent thereto.’ ”

Nicrosi violated his duty to fully disclose his dual agency capacity to Southern Federal, and he should forfeit any right to compensation. I repeat that I do not reach this conclusion by reviewing the trial Judge’s factual findings but only by reviewing his application of the law of agency to the undisputed facts.

One other aspect of this case which serves to dramatize the trial Court’s error is worthy of comment. The trial Court, in arriving at the award, gave credence to the dual agency capacity which Nicrosi maintained between Union Bank and Southern Federal. Keep in mind that Nicrosi had not contracted with Southern Federal for a percentage commission. Their only arrangement, which was verbal, was to the effect that Southern Federal would pay Nicrosi for his time and effort, and reimburse his expenses (in other worrds, quantum meruit). The judgment of the trial Court in favor of Nicrosi for $32,095 can be arrived at under the evidence only by combining the $26,500 commission reflected by Nicrosi’s contract with Union Bank (the seller) with a determination of value of Nicrosi’s services in finding a new location for Southern Federal prior to his dealing with Union Bank. In other words, the two weeks of services by Nicrosi before August 1, 1974 (the date the Grey-stone Hotel property entered the picture) was valued by the Court at $5,595, and the balance of the total judgment is derived from the contractual arrangement between Nicrosi and Union Bank. The $29,100 commission claimed by Nicrosi (6% of $485,000) is totally supported by Nicrosi’s own version of the contractual arrangement which he had with Southern Federal. Thus, the trial Court, by quantum meruit for the period prior to August 1, with a commission for the Greystone Hotel transaction subsequent to August 1, implicitly acknowledged Nicrosi’s dual capacity as agent for both Union Bank and Southern Federal. The facts are without dispute that such dual capacity was not fully disclosed by Nicrosi to Southern Federal. As a matter of law, then, Nicrosi’s conduct has precluded him from entitlement to any compensation.

I would reverse.

      . Indeed, Southern Federal did not learn of Nicrosi’s dual agency capacity until after its purchase of the Greystone Hotel property had been consumated and after its written agreement with Nicrosi to pay for Nicrosi’s services.


author: ALMON, Justice.

text:
    James F. DONALDSON v. Nellie Jean BUCK.
    SC 939.
    Supreme Court of Alabama.
    June 11, 1976.

      J. Wm. Thomason, Bessemer, for appellant.
    Rives, Peterson, Pettus, Conway, Elliott & Small, Birmingham, for appellee.
   ALMON, Justice.

The appellant, James F. Donaldson, brought suit against Nellie Jean Buck, ap-pellee, for damages resulting from an automobile collision.

The collision occurred on a bridge on Highway 52 in Shelby County. The bridge was approximately thirty feet long and the traveled portion was about seventeen feet wide. In lieu of side rails the bridge only had a small concrete' curbing on either side. The highway leading to the bridge was paved and slightly wider than the bridge.

On a misty, rainy afternoon appellant approached the narrow bridge from one end at approximately twenty miles per hour. The appellee approached from the other end at approximately twenty-five miles per hour. The road was slippery and wet and the vehicles came into contact somewhere on the bridge. The appellant’s vehicle came to rest in the creek off of the bridge on its side. The appellee steered her vehicle clear of the bridge and the vehicle came to rest on the highway about five car lengths from the end of the bridge.

The jury found for the defendant-appel-lee. Motion for new trial was overruled.

Appellant argues that it was reversible error for the trial court to allow comments by appellee’s counsel during the closing arguments to the jury on the failure of appellant to call Dr. Wilson and Mr. Bander-man as witnesses.

As to Mr. Banderman, the record shows:

“MR. ELLIOTT: . . . What about the only witness who is not a party to this case. What about the passenger in his car, Mr. Banderman.
“MR. THOMASON: We object to that. Mr. Banderman certainly is equally available to Mr. Elliott as he was to us. He was up here. He went home sick. Mr. Elliott knows that.
“MR. ELLIOTT: I do not know it.
“THE COURT: Overruled.
“MR. THOMASON: We except to it.
“MR. ELLIOTT: I make this argument. If I’m wrong, you hold it against me. Monday that man was here and they brought it up about his friend being the passenger in the car. He didn’t testify Monday. He didn’t testify Tuesday or Wednesday. They come to us with opinions, but they don’t come to you with any facts and that’s what you’re entitled to, the fact of this occurrence. The case of the Faulty Opinions.”

It is the general rule that a party cannot comment in argument upon the failure of his opponent to call a particular witness if the witness is equally accessible to both parties. City of Birmingham v. Levens, 241 Ala. 47, 200 So. 888 (1941).

It was stipulated however that Bander-man was a passenger in appellant’s vehicle at the time of the accident and was injured. It was further stipulated that Ban-derman employed appellant’s counsel to cause suit to be filed against appellee. The suit was settled for $2,000.00.

Thus, the question narrows to whether under these circumstances Banderman was equally accessible, within the meaning of the law, to both parties.

In Carter v. Chambers, 79 Ala. 223 (1885), this court observed:

“. . . There is a rule, and a just one, that if a party has a witness possessing peculiar knowledge of the transaction, and supposed to be favorable to him, and fails to produce such witness when he has the means of doing so, this, in the absence of all explanation, is ground of suspicion against him that such better informed testimony would make against him. McGar v. Adams, 65 Ala. 106; Kilgore v. State, 74 Ala. 1; Fincher v. The State, 58 Ala. 215; 1 Greenl. Ev. § 82. This duty, however, rests with special force on the party who-has the burden of proof; most generally on the plaintiff. The defendant may, and frequently does, rest his defense on what he considers the weakness of his adversary’s testimony, as he interprets it, or on the exculpatory features it presents. He is under no obligation to aid the plaintiff in making out his case. McGar v. Adams, supra.

In Waller v. State, 242 Ala. 1, 4 So.2d 911, the defendant was tried for the offense of robbery. The State attempted to show flight. To refute flight the defendant testified that on the night of the alleged offense he spent the night with his father in the neighborhood of the occurrence. The father did not testify at trial. In closing arguments to the jury the solicitor commented that it was significant that the defendant did not call his father. The court reasoned that

“. . . [o]ne so closely related to the defendant by blood is bound to be hostile to the State and can not be said to be as available to the State, as to the defendant. Jackson v. State, 56 Tex.Cr. 28, 117 S.W. 990; 14 Am.Jur. 875, § 151; Com. v. Spencer, 212 Mass. 438, 99 N.E. 266, Ann.Cas.l913D, 559; 16 C.J. 904, § 2250.”

It can therefore be seen that being amenable to process is not the sole criterion for determining “equal availability” within the meaning of the rule.

This court in Alabama Power Co. v. Talmadge, 207 Ala. 86, 93 So. 548, addressed this subject as follows:

“. . . If these defendants were operating the gas plant on the occasion in question, the facts as to the manner of its operation were in the peculiar keeping of persons who, it may be assumed, were friendly to the defendants. In these circumstances it cannot be said that the argument which the court permitted to go to the jury, if it did permit any part of it, was unfair or improper.
“. . . It was said by Lord Mansfield in Blatch v. Archer, Cowp. 66:
“ ‘It is certainly a maxim that all evidence is to be weighed according to the proof which it is in the power of one side to have produced and in the power of the other to have contradicted.’
“Prof. Wigmore says that the propriety of the inference that the party who fails to bring before the tribunal some circumstance, document, or witness, when either he or his adversary claims that the facts would thereby be elucidated, fears to do so, and that this is some evidence that the circumstance or document or witness, if brought, would have exposed facts unfavorable to the party so failing — this inference he says is most natural. 1 Wigm. Ev. § 285.
“In 2 Chamb.Mod.Ev. § 1075, it is said :
“ ‘In proportion as it is to the interest of the party to submit the evidence of an available witness, the jury are entitled to infer from his neglecting to do so that his evidence, if produced, would not be favorable to the party.’ ”

It would seem under the authorities cited that reversible error has not been shown in allowing the argument in question. The witness had employed appellant’s counsel to prosecute a suit against appellee. It is not unreasonable to conclude that the witness would be friendly toward appellant and unfriendly toward the appellee. Certainly, we cannot conclude otherwise on this scant record.

We see no need to address ourselves to the assertion of counsel that the witness was sick or the counter-assertion by opposing counsel seeming to contradict that fact. The trial judge was in a better position to weigh these claims than an appellate court. We cannot say that the witness was equally available as that term is used in our cases.

As for the comments concerning the failure to call Dr. Wilson as a witness, it appears that Dr. Wilson was equally available to both parties. Thus, it was error for the trial court to allow comment by appellee concerning the failure of appellant to call Dr. Wilson as a witness. However, the testimony of Dr. Wilson could only have gone to the question of damages. And error in the rejection or admission of evidence going merely to the extent of injury and damages will not work a reversal where there is a finding for the defendant. Reed v. L. Hammel Dry Goods Co., 215 Ala. 494, 111 So. 237 (1927); Millsap v. Williamson, 294 Ala. 634, 320 So.2d 649 (1975). While the question in the instant case does not involve the admission of testimony as to damages, it does concern the prejudicial effect of comments concerning the failure of appellant to call a witness who would testify as to damages, and we conclude that the same principles should apply.

Appellant next alleges that the trial court erred in not permitting a physicist to answer hypothetical questions expressing his opinion as to whether the impact occurred on appellant’s or appellee’s side of the road.

Mr. Demetrius Zizzermann testified that he was employed at the U. A. B. Medical Center as a computer programmer; that he was studying for his doctoral degree in theoretical nuclear physics; and that at that time he held a bachelor and masters degree in physics. The record does not indicate that Mr. Zizzermann had any experience in automobile accident reconstruction.

“The question of whether or not a particular witness will be allowed to testify as an expert is largely discretionary with the trial court, whose discretion will not be disturbed on appeal except for abuse. Baggett v. Allen, 273 Ala. 164, 137 So.2d 37 (1962); Johnson v. Battles, 255 Ala. 624, 52 So.2d 702 (1951).” Hagler v. Gilliland, 292 Ala. 262, 292 So.2d 647.

We are not persuaded that the trial court abused its discretion in disallowing the hypothetical questions. The rule is that hypothetical questions should not contain elements of fact not shown by the evidence. Mahone v. Birmingham Electric Co., 261 Ala. 132, 135, 73 So.2d 378, 380 (1954); Salotti v. Seaboard Coast Line Railway Co., 293 Ala. 1, 299 So.2d 695 (1974).

Among the facts not in evidence were the weight of the vehicles (based upon telephone calls by .the witness to automobile dealerships), the angle of collision, and the speed of the vehicles (the hypothetical assumed the vehicles were going at equal speeds, while the evidence was to the contrary). Further, according to the preliminary questions, Mr. Zizzermann assumed that the drivers exercised no control over the movement of the vehicles. The evidence showed otherwise. He further testified that to make his calculation he would have “to know the speed of one of the vehicles after the accident.” There was no evidence in the record which showed the speed of either vehicle after the impact.

The preliminary questions to the witness which we have referred to were asked outside the presence of the jury. At the conclusion the trial court made the following comment:

“It’s my job to determine whether or not an expert is the expert in the field in which he’s offered. He has been offered as a physicist expert. There’s no doubt in my mind that he could probably explain to me Mr. Newton’s law of gravity better than anybody to mankind, but if he’s offered to tell me and this jury where these two vehicles came together on this wreck scene under all of the testimony, then he’s been offered as an accident reconstruction expert and that he’s not, and I’m going to sustain the objection.”

Finally, appellant maintains that the trial court erred in refusing to allow appellant, after being cross-examined concerning answers to three interrogatories, to testify as to how many questions were in the entire set of interrogatories (the answers were not offered) into evidence. This court fails to see the relevance of such evidence to any material issue in the case. Furthermore, determination of whether particular evidence is relevant is largely within the discretion of the trial court. State Farm Mutual Auto Insurance Co. v. Humphres, 293 Ala. 413, 304 So.2d 573 (1974). We find no abuse of discretion in the trial court’s ruling.

The judgment appealed from is affirmed.

AFFIRMED.

BLOODWORTH, FAULKNER and EMBRY, JJ., concur.

HEFLIN, C. J., concurs in the result.

      . Although we have mentioned several instances in which the facts in evidence differed from those assumed in the hypothetical questions, we do not say all these deficiencies must be satisfied in every case.