text:
    Earl Clarence GIBBON, Plaintiff-Appellee, v. Ruth Phelps West GIBBON, Defendant-Appellant.
    No. 12993.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 31, 1976.

      Feist, Schober & Howell by John L. Scho-ber, Jr., Shreveport, for defendant-appellant.
    Hargrove, Guyton, Ramey & Barlow by Billy R. Pesnell, Shreveport, for plaintiff-appellee.
    Before BOLIN, PRICE and JONES, JJ.
   JONES, Judge.

This is a suit by a husband for separation of bed and board on the grounds of mental cruelty. The wife’s defense is that she did not subject her husband to mental cruelty, and that if she did,- he condoned it by continuing to live with her.

The wife filed a reconventional demand seeking a separation on the grounds of cruel treatment and on constructive abandonment by the husband, and sought alimony in the amount of $2500 per month. The trial court awarded the husband a separation and ordered him to pay the wife $1800 per month alimony pendente lite. The wife appealed and the husband answered the appeal seeking a reduction in the alimony award to $1000 per month.

The issues presented by the wife’s appeal are whether the trial court was correct in awarding the husband a judicial separation on the grounds of mental cruelty, and in rejecting her reconventional demand for separation on the grounds of cruelty and constructive abandonment. The amount of the alimony award is also an issue.

Plaintiff and defendant were married October 1, 1971. On the date prior to their marriage they executed an antenuptial contract which precluded the existence of a community of acquets and gains. The wife became extremely unhappy because of the existence of this contract and constantly complained about it and urged her husband to take the necessary legal action to cancel it. He eventually investigated the possibility of doing so, but found that it was legally impossible.

The husband testified that commencing in 1973 and continuing thereafter until the final separation on January 20, 1976, that his wife frequently nagged and complained to him about the existence of the antenup-tial contract.

Plaintiff testified his wife publicly embarrassed and humiliated him: at Don’s Seafood Restaurant in Shreveport on March 20 and September, 1974; at the International Trade Mart in New Orleans in April, 1974; at Smith’s Cross Lake Inn in Shreveport in the summer of 1974; and at Ernest’s Winners Club on November 16, 1975. The plaintiff further testified that the nature of defendant’s conduct at these public places included in most instances his wife generally nagging, complaining and verbally abusing him in a loud voice, and on several instances actually leaving him in the public place to return from dinner alone. There is evidence on at least one occasion that she used profane language in one of her tirades. The evidence reflects that two of the listed instances occurred in the presence of plaintiffs close friends. One of his friends was subjected to loud verbal abuse by the defendant. This conduct by defendant in the presence of his friends had the effect of increasing the embarrassment and humiliation suffered by the husband. The husband’s version of three of the listed occurrences was corroborated by one disinterested witness.

The husband testified that among other cruel treatment his wife subjected him to were the following: (a) she slapped him in their living room in July, 1973, and at the same time broke an ash tray and a picture album; (b) on Mother’s Day in 1975, his wife called him an ugly name over the telephone and there is further evidence that she called him several ugly names on other occasions in their home in the presence of the maid; (c) in the fall of 1975 she told her husband she hoped she “was alive when you die so I can laugh in your face”; (d) on another occasion in the fall of 1975 she asked him “How much would you pay me to get out of your life?”; and (e) at Christmas, 1975, in response to a gift of five 100 dollar bills and a bottle of perfume from her husband, she said to him, “Is that all I am worth?”. With regard to being called vile names and the remark referred to in item “d”, plaintiff’s testimony was corroborated by the maid. The defendant did not deny the occurrence of the acts specified in this paragraph.

The plaintiff testified that approximately 20 days before the separation occurred, while the parties were at home, the defendant told him he “was sitting on a time bomb”, and when plaintiff sought an explanation of this remark by asking his wife if someone was going to kill him, she said: “Nobody would dirty their hands on you doing that.”

Defendant did not deny she told her husband he was “sitting on a time bomb”, but denied the explanation of her remark as offered by the husband and indicated she made the remark in reference to the fact that she believed her husband would be upset because his daughter and grandchildren were moving out of the state.

Plaintiff suffers from emphysema for which he takes medication. He testified that on January 2, 1974 when he went to bed he took a dose of Elixophyllian for emphysema, and that he noticed the medicine had a horrible taste and he soon became extremely nauseated and was sick all night; that on the following morning he looked at the medicine bottle and observed it had an unusual appearance. Plaintiff said that he had another full bottle of this medicine, and that about an ounce of the contents had been removed from this bottle. Plaintiff was sick the remainder of that day, Friday, and on Monday, January 5, he carried the medicine to the druggist from whom it was purchased. The druggist submitted the two bottles brought to him by plaintiff, along with a sample from the source of supply from which he filled plaintiff’s prescriptions, to a toxicologist of the LSU Medical School. The toxicologist testified that the drug and color content of the medicine had been diluted 20 to 30 per cent.

Mrs. Alma Pinkard, the maid, testified she observed the medicine on January 2 and that the color did not appear normal; that on January 2, 1976, defendant inquired of her if “Mr. Earl” had accused defendant of attempting to poison him, to which she replied in the negative. Plaintiff testified that no one had access to his medicine other than his wife.

Plaintiff believed his wife tampered with his medicine. Approximately one week after receiving the toxicologist’s report on the medicine, plaintiff decided he could not continue to endure his wife’s cruel treatment, and ordered her to vacate the matrimonial domicile, which was his separate property. She complied with his demand and approximately one week later he filed this suit.

Louisiana Civil Code Article 138 provides in part:

“Grounds for separation from bed and board
* * * * * *
“3. On account of habitual intemperance of one of the married persons, or excesses, cruel treatment, or outrages of one of them towards the other, if such habitual intemperance, or such ill-treatment is of such a nature as to render their living together insupportable; . . . .”

In Carriere v. Carriere, 147 So.2d 668 (La.App. 3d Cir. 1962) the court recognized that mental cruelty may constitute cruelty of such a nature as to justify an award of separation from bed and board in the following language:

“The jurisprudence of this State is established to the effect that behavior causing mental anguish, as distinguished from physical mistreatment, may constitute cruelty of such a nature as to render living together insupportable within the meaning of Article 138(3) of the LSA-Civil Code. ...”
Id. at page 670

In Sadoff v. Sadoff, 210 So.2d 614 (La.App. 2d Cir. 1968), the court in discussing mental cruelty as a ground for separation, stated:

“A series of studied vexations and provocations by the husband causing mental anguish, as distinguished from physical mistreatment,, may constitute cruelty of such a nature ás to render living together unbearable and insupportable within the meaning of Louisiana Civil Code Article 138(3); . .
Id. at page 615

The question of whether plaintiff or defendant is entitled to a separation must be determined from the facts. A determination of facts in a case such as this depends largely upon the veracity and credibility of the witnesses and the weight which is given to their respective statements. Since the trial judge observed the witnesses as they testified, he is in a better position to evaluate their testimony and his opinion and conclusion as to the facts are entitled to great weight. Carriere v. Carriere, supra.

The trial judge made a factual finding that the defendant had conducted herself towards her husband in public and otherwise in such a manner as to constitute cruel treatment. The court made a specific finding that the wife had tampered with her husband’s medicine. We approve these findings.

Conduct of a similar nature has been recognized as cruel treatment in the following cases: Krauss v. Krauss, 163 La. 218, 111 So. 683 (1927); Kammer v. Reed, 176 La. 1091, 147 So. 357 (1933); Swartz v. Swartz, 191 So.2d 753 (La.App. 2d Cir. 1966).

The defendant’s contention that plaintiff condoned her cruel treatment by continuing to live with her is without merit. The jurisprudence has long recognized that forebearance of a spouse by enduring cruel treatment of the other should not be construed as a reconciliation or condonation barring the victim of such treatment from demanding a judgment of separation.

In the Supreme Court decision of Rainwater v. Brown, 221 La. 1033, 61 So.2d 730 (1952) some of a wife’s acts of cruel treatment occurred a year or more prior to the date the parties separated, and one or more of the alleged cruel acts occurred within a month of the separation. The court held that the forebearance of the husband enduring these acts of cruel treatment prior to the separation did not constitute a condo-nation of cruel treatment to bar his suit for separation from bed and board. See also Carriere v. Carriere and Sadoff v. Sadoff, supra.

In this case a separation in fact between plaintiff and defendant occurred between May and August, 1974. Some of the cruel treatment occurred prior to this separation and reconciliation, and some of the acts of cruelty occurred subsequent to August, 1974. While the acts of cruel treatment prior to their separation may be technically condoned since they do not clearly fall within the exception to the rule that cruel treatment is not condoned by fore-bearance in continuing to live with the guilty spouse as hereinabove set forth, these instances of cruel treatment were properly considered by the trial judge under LSA-C.C. Art. 153:

“In either case the plaintiff shall be precluded from bringing his action; but he shall be at liberty to bring a new suit for causes arising since the reconciliation, and therein make use of the former motives to corroborate his new action.”

This article has been construed to provide that proof of prior condoned acts may be considered by the court as corroborating the proof of occurrence of those acts of cruel treatment which occurred subsequent to the reconciliation. Continuing to endure the acts of cruel treatment which occurred after he and his wife resumed living together in August, 1974 does not constitute plaintiff’s condonation thereof.

Plaintiff seeks a reduction of the award to his wife of $1800 per month alimony pendente lite, taking the position that the award is excessive and that $1000 would be adequate. Plaintiff is a man of substantial wealth. During 1976 his anticipated income from interest and social security is in excess of $42,000, and he will have income from capital gain sources in addition to this sum resulting in a total taxable income in excess of $75,000.

The wife is entitled to alimony pen-dente lite in an amount sufficient to maintain her in a style comparable to that which she enjoyed prior to the separation by reason of her husband’s means and position. Small v. Small, 173 So.2d 854 (La.App. 4th Cir. 1965). The trial court recognized that plaintiff was wealthy and further recognized that the parties lived in comparative luxury. The court considered that among the numerous items set forth by the wife in a list of her expenses, some were excessive and further noted that some necessary items were omitted from the list. The court concluded that her demand for $2500 monthly was excessive but that she was entitled to $1800 per month to provide her with a standard of living comparable to that which she enjoyed prior to the separation. Plaintiff has ample means to meet the needs of his wife.

The amount to be awarded as alimony pendente lite is largely within the discretion of the trial judge and his conclusions will not ordinarily be interfered with on appeal. Gutierrez v. Gutierrez, 172 So.2d 753 (La.App. 4th Cir. 1965). We find no error in the alimony award.

The judgment is affirmed. Cost of this appeal is assessed equally between the litigants.


source: Caselaw Access Project

author: PRICE, Judge.

license: Public Domain

text:
    Joseph L. GUICE d/b/a J. L. Guice, Distributor, Plaintiff-Appellee, v. Thomas A. MODICA, Defendant-Appellant.
    No. 12988.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 31, 1976.
    En Banc. Rehearing Denied Sept. 27, 1976.

      Donald R. Miller, Shreveport, for defendant-appellant.
    Bodenheimer, Jones, Klotz & Simmons, by Harry Simmons, Shreveport, for plaintiffs-appellees, Joseph L. Guice & United Agriculture Credit Corp.
    Naff, Kennedy, Goodman & Donovan, by Ralph W. Parnell, Jr., Shreveport, for inter-venor-appellee, J. E. Sandefur.
    Cook, Clark, Egan, Yancey & King, by Edwin L. Blewer, Jr., Shreveport, for inter-venor-appellee, H. H. Prescott & Sons, Inc.
    Donald E. Walter, U. S. Atty., by Frances 0. Allen, Asst. U. S. Atty., Shreveport, for intervenor-appellee, The United States.
    Before BOLIN, PRICE and HALL, JJ.
   PRICE, Judge.

Joseph Guice filed this suit as a creditor of Thomas Módica to nullify a donation of immovable property in Bossier Parish from Módica to his children. The United States, United Agriculture Credit Corporation, H. H. Prescott and Sons, and J. E. Sandefur intervened in an attempt to enforce judgments they had obtained against Módica. The plaintiffs based their attack on Article 1980 of the Civil Code, contending that Modica’s donation was gratuitous and a presumptive attempt to defraud his creditors since he did not retain property valued at twice the amount of the donation. In a trial by jury, the donation was nullified and Módica appealed to this court alleging the trial court erred in excluding certain testimony designed to prove the donation was onerous, and thus not subject to the rules of Article 1980. The defendant further contends the intervenors’ rights had prescribed because they did not bring suit against the debtor within one year from the date of their judgment as required by Civil Code Article 1994.

We pretermit any discussion of these issues as there has been a failure to join indispensable parties. Modica’s children were not made parties to the suit. Indispensable parties are defined by Article 641 of the Code of Civil Procedure:

Indispensable parties to an action are those whose interests in the subject matter are so interrelated, and would be so directly affected by the judgment, that a complete and equitable adjudication of the controversy cannot be made unless they are joined in the action.
No adjudication of an action can be made unless all indispensable parties are joined therein.

Modica’s children accepted the property on January 4, 1969, and apparently owned the property from that date. As owners of the property, the children have an interest in the action that would be directly affected by any judgment rendered in this suit. They should not be subjected to a possible divestiture of their title without being made parties to the suit. When it is noted on appeal that an indispensable party was not joined in the action, the case must be remanded for joinder and retrial. State, Department of Highways v. Lamar Advertising Company of Louisiana, Inc., 279 So.2d 671, 675 (La.1973).

The judgment appealed from is therefore annulled, and the case is remanded to the district court for further proceedings consistent with the views expressed herein and in accord with law. Costs of this appeal are assessed to appellees.


author: WATSON, Judge.

text:
    Grady WILDER, Jr., et al., Plaintiffs-Appellants, v. Tom THROWER et al., Defendants-Appellees.
    No. 5581.
    Court of Appeal of Louisiana, Third Circuit.
    Sept. 13, 1976.
    William Henry Sanders, Jena, and Edward A. Kaplan, Alexandria, for plaintiffs-appellants.
    Don C. Burns, Columbia, Kidd, Katz & Strickler, by Stephen J. Katz, Monroe, Long & Peters, Jimmie C. Peters, Jena, for defendants-appellees.
    Before MILLER, DOMENGEAUX and WATSON, JJ.
   WATSON, Judge.

One defendant, LaSalle Parish School Board, filed an exception of no right and no cause of action to this suit in tort against various defendants.

The original petition of Grady Wilder, Jr. (hereafter called “Wilder”) alleges an accident on or about November 24, 1974, and an amended petition alleges events occurring in September and November, 1974, and conditions developing in 1975.

By court order of February 11, 1976, Mrs. Frank Taylor was substituted as party plaintiff, the supporting motion alleging the death of her son, Grady Wilder, Jr. An amended petition was filed on April 8, 1976, by Mrs. Taylor, alleging that the death of Wilder resulted from the negligence of the school board’s employee, Thrower, and asking damages for the death, as well as damages for his pain, suffering and mental anguish before death. In neither pleading is the date of Wilder’s death alleged, but other pleadings indicate that he was alive in 1975.

There are thus, two causes of action involved: (1) for Wilder’s death, arising in 1975; and (2) for Wilder’s damages, arising in 1974. LSA-C.C. art. 2315; King v. Cancienne, La., 316 So.2d 366; Callais v. Allstate Insurance Company, 334 So.2d 692 (La., 1976); J. Wilton Jones v. Liberty Mutual Insurance Co., 248 So.2d 878 (La.App. 4 Cir. 1971).

The cause of action for Wilder’s death clearly arose after the effective date of the Louisiana Constitution of 1974, which was December 31, 1974. (Art. 14, § 35).

The trial court sustained the school board’s exception of no right and no cause of action by judgment rendered April 20, 1976, on the basis of sovereign immunity under LSA-R.S. 17:51. Plaintiffs have appealed.

The issue presented is whether the school board is entitled to claim sovereign immunity.

The 1974 Constitution, in Article 12, § 10(A) provides:

“Neither the state, a state agency, nor a political subdivision shall be immune from suit and liability in contract or for injury to person or property.”

Article 14 § 33 limits the effective date of Article 12, § 10(A) to causes of action arising after December 31, 1974.

Thus, as to Mrs. Taylor’s claims based on Wilder’s death, the school board enjoys no immunity and a cause of action is stated.

A suit should not be dismissed on an exception of no cause or no right of action when the allegations set forth a cause of action as to any part of plaintiff’s demands. Bailey v. Texas Pacific Coal and Oil Company, 134 So.2d 339 (La.App. 3 Cir. 1961). The LaSalle Parish School Board is not immune from this suit in tort, at least as to the cause of action asserted by Mrs. Taylor for Wilder’s death in 1975. The exception is overruled and the cause is remanded for further proceedings.

Costs insofar as allowed by law are taxed against the appellee school board.

REVERSED AND REMANDED.

      . LSA-R.S. 17:51:
      “There shall be a parish school boarid for each of the parishes, and these several parish school boards are constituted bodies corporate with power to sue. The legislature hereby authorizes suits against any parish school -board for the enforcement of contracts entered into by the school board or for recovery of damages for the breach thereof, without necessity of any further authorization by the legislature. No other suits may be instituted or prosecuted against any parish school board unless in each individual case the legislature first has granted to the party or parties plaintiff the right to sue the particular school board, as provided in Section 26 of Article XIX and Section 35 of Article III of the Louisiana Constitution. In suits against school boards citation shall be served on the president of the board and in his absence oh the vice-president. As amended Acts 1962, No. 67, § 1.”


author: BOLIN, Judge.

text:
    O. B. MOBLEY, Jr., Plaintiff-Appellee, v. Nomie M. NAMIE, Jr., Defendant-Appellant.
    No. 12994.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 31, 1976.
    En Banc. Rehearing Denied Sept. 27, 1976.
    Writ Refused Dec. 1, 1976.
    Donald C. Brown, Shreveport, for defendant-appellant.
    Feist, Schober & Howell by John L. Scho-ber, Jr., and Joe B. Cordill, Jr., Shreveport, for plaintiff-appellee.
    Before BOLIN, PRICE and JONES, JJ.
   BOLIN, Judge.

O. B. Mobley, Jr., sued Nomie M. Namie, Jr., for money Mobley alleges he loaned Namie while Namie was married to Mob-ley’s daughter. Namie excepted to the venue of the Caddo Parish court, saying he was domiciled in Bienville Parish. Evidence was taken on the exception and it was overruled. Namie answered, contending the money was not advanced as a loan but as a gift, but that if there was a debt it was owed by the marital community. Namie filed a third party demand against his divorced wife seeking a judgment against her for one-half of any amount for which he might be cast. Following trial on the merits judgment was rendered in favor of Mob-ley against Namie for the amount prayed for, and in favor of Namie on his third party demand against his former wife. Na-mie appeals from the judgment and also reurges his exception to the venue. We reverse on the merits and affirm the ruling on the exception.

ISSUES

1. Was defendant domiciled in Caddo Parish at the time the suit was filed?

2. If the first issue is answered in the affirmative, did plaintiff prove defendant was legally indebted to him?

VENUE

An individual domiciled in the state shall be sued in the parish of his domicile. (La. Code of Civil Procedure Article 42).

A person’s domicile is where he has his principal domestic establishment. (La. Civil Code Article 38). In order to acquire a domicile one must reside in a location with an intent to remain there permanently or indefinitely. Succession of McElwee, 276 So.2d 391 (La.App.2d Cir., 1973) and cases cited therein.

In this case the trial judge found that Namie’s principal place of employment was in Caddo Parish; that he was renting an apartment in that parish where he stayed four or five nights each week; that he had a telephone listed in his name at the apartment; that he had his name on a mail box there. Namie testified his domicile was with his parents in Bienville Parish where he spent several nights each week. The court concluded defendant was domiciled in Caddo Parish and overruled the exception to the venue. We find sufficient evidence to support this ruling.

MERITS

Mobley’s daughter, Penelope, married Namie in 1970 and they were divorced several years later. Mobley contends that between 1970 and 1972 he advanced money to his daughter and Namie; that all the advances were loans which Namie agreed to repay. A detailed ledger, prepared and kept by Mobley’s secretary, reflected a total expenditure by him of $18,759.53 on behalf of his daughter and Namie. The principal items were: $5,000 representing a monthly allowance of $200 paid by Mobley to his daughter for 25 months; approximately $5,100 spent on two houses owned by Mob-ley at Shreveport and Ruston, but occupied by Namie and his wife; internal revenue and employment security debts owed by Namie totaling $363.65; several thousand dollars for various business ventures operated by Namie at Ruston and Monroe which were apparent failures.

Namie does not contest the correctness of the amounts shown in the ledger. His defense is that he was not legally obligated to pay the amounts. He did feel he had a moral obligation to pay if and when he became financially able. He testified he had intended to repay some, if not all, of the amounts claimed if the Mobleys had not broken up his marriage.

While much can be said to justify or condemn the actions of both Namie and the Mobleys, that is not a function of the court. Whether the transactions between the parties created a legal debt owed by Namie to Mobley may be largely determined from two handwritten letters. On June 19, 1972, Namie wrote Mobley a letter seeking to justify some of his past conduct and blaming his marital problems on interference from Mrs. Mobley. In this letter he said, “Believe it or not, you have not been alone in giving me support, but you will be alone in the fact that I will repay you every cent with interest.”

On June 25, Mobley answered Namie’s letter expressing disappointment over Na-mie’s apparent misunderstanding and lack of appreciation of what he and his wife had done for the young couple. In this letter he said, “Do you understand the money spent by us was an investment in your family future. Remember I said Nomie, don’t start sending us money—keep it—when you get on your feet, then, if you would feel better paying us some along as you can afford it—do it. The statement showing what we have spent was sent at your request. This account has been kept at your request and you do not owe us one penny because we did this as an investment in your family future.” Mobley explains his letter by saying it was written during a time when he was greatly, disturbed and that he never intended to tell Namie he was not legally obligated to pay him.

The trial judge found the overall testimony, when studied in connection with the letters, showed the money was advanced as a loan. We do not agree with this conclusion. Unfortunately this court cannot erase the strained feeling between the Mobleys and Namie. Our task is one of deciding the legal issues. The letter written by Mobley makes it clear that he never advanced any money to Namie as a loan. In fact, some of the money was advanced without Namie’s knowledge. Undoubtedly the Mobleys were very interested in the welfare of their daughter, and by advancing the money they had reason to believe the marriage would succeed and that their daughter and grandchild would benefit.

Assuming, but not deciding, that Namie’s' letter of June 19 created an enforceable debt as of that date by unconditionally promising to pay the amount reflected on the ledger, we find Mobley’s letter of June 25 constituted a voluntary remission of the debt. In this letter he expressly stated defendant did not owe him one penny. Louisiana Civil Code Articles 2130, 2199 and 2201.

The judgment is reversed and plaintiff’s demands are rejected at his cost.


author: BOUTALL, Judge.

text:
    Charles RODRIGUEZ v. CITY CIVIL SERVICE COMMISSION FOR the PARISH OF NEW ORLEANS, and their agents and Superintendent of Police, Clarence B. Giarrusso and his agents.
    No. 7575.
    Court of Appeal of Louisiana, Fourth Circuit.
    Aug. 31, 1976.

      James Burnett Aime and Clyde A. Ramirez, New Orleans, for Charles Rodriguez and Wayne Levet.
    Ralph D. Dwyer, Jr., Many, Lo Coco & Dwyer, City Civil Service Commission, New Orleans, for the Parish of New Orleans.
    David Gertler, Frank C. O’Halloran, Jr., Constant G. Marquer, Jr., New Orleans, for James Howley, III, and Kenneth Dupaquier.
    Before REDMANN, BOUTALL and SCHOTT, JJ.
   BOUTALL, Judge.

Suit was brought by two members of the New Orleans Police Department, whose names appear on a promotion list for promotion to Captain, against the City of New Orleans and various appointing agencies, seeking a preliminary injunction enjoining the defendants from certifying a list of eligibles and promoting from such list, a permanent injunction to the same effect, and judgment deleting veteran’s preference points from computations of a list of eligi-bles for promotion. By stipulation of the parties, a hearing was held on the preliminary injunction and permanent injunction. The prayer for a declaratory judgment was apparently eliminated. The trial court granted judgment in favor of defendants and dismissed plaintiffs’ demands. Although there were intervenors in the suit no mention is made of the disposition of the intervention. Only the plaintiffs have appealed.

The basic issue is the effect of a change in the constitutional provisions regarding veteran’s preference. The Louisiana Constitution of 1921, Article 14 § 15(1) granted veterans 3 point preferences in promotions. Louisiana Constitution of 1974 Article 10 § 10(2) omits the 3 point preferences in promotions. At issue here is a promotion list established on July 1, 1974 for a two year period, from which promotions to captain are being made. Under that list appellants were ranked without the 3 point preference (they being non-veterans), and other applicants were ranked ahead of them, some with the 3 point preference and some without. They contend that from the effective date of the Constitution of 1974, that all eligibles for appointment should be ranked on the basis of test grade only and the 3 point veteran’s prefe.rence be eliminated.

We are of the opinion that the list as it is presently formed is contrary to the Constitution of 1974 and the 3 point veteran’s preference should be eliminated from the promotion list. LRS 83:2410 provides for the establishment of promotion lists and requires that the eligibles shall be ranked in the order of their ratings earned in the tests given for the purpose of establishing the list, subject, however, to subsequent revision by the Director in compliance with RS 33:2418. This follows the general authority granted in La. Constitution of 1921, Art. 14 § 15(1) in which the 3 point veteran’s preferences is granted to be added to an otherwise eligible person’s score. The Director shall determine at the time any promotion list is established the period during which the list shall remain in force, which shall not be less than six months nor more than thrée years. He may extend the period up to the three year maximum for good reason, and he may consolidate or cancel promotion lists as the needs of the service require as authorized by the rules.

Rule 5 of the Civil Service Commission of the City of New Orleans provides for the establishment of promotion lists and employment lists. It follows the statutory law with the minimum duration of six months and a maximum duration of three years at the determination of the Director. It further provides for a method - of combining current employment lists with new ones in Section 5.4.

A consideration of the statutory law pertaining to promotional lists and the Rules of the Civil Service Commission of the City of New Orleans shows that, subject to the limitations of a minimum of six months and maximum of three years, the effective use or maintenance of such lists is entirely at the discretion of the Director. Since he can suspend such lists, alter them, or give new tests to supercede them, it is apparent that no one has any vested right in the maintenance of such lists past six months minimum period. It cannot be successfully argued that the constitutional change effected in 1974 did not thus take away the Veteran’s preference of 3 points granted in the previous constitution and statutory law.

The right to the 3 point veteran’s preference for promotions came into existence first in the statutory law and then by virtue of the amendment to the Constitution of 1921. When the promotion list was prepared it conformed to the provisions of the then existing law and, due to the provisions of the Constitution of 1974 that it was not to be retroactive, the list was valid and correct for a period of six months from the date of its confection. While a right to preference existed, under the terms of the then existing law, it was subject to change after a period of six months, and could not be a vested right beyond that time. A right is a vested right when the right to enjoyment, present or prospective, has become the property of some particular person as a present interest, and the right must be absolute, complete, and unconditional, independent of a contingency, and not a mere expectancy of future benefit or contingent interest in property. Tennant v. Russell, 214 La. 1046, 39 So.2d 726. After a six month period, the list became subject to the discretion of the Director. When the constitutional right of 3 point preference was removed, the Director was then required to take away that preference and re-rank the eligibles in accordance with their test score. Accordingly, we find the present list to be in error, and must grant the injunctive relief prayed for until the Director rearranges the names in accordance with test scores only, or prépares a new eligibility list.

Considering the procedural posture of this case and the type of relief sought, our judgment is limited only to the promotional list at issue here. Accordingly, IT IS ORDERED that the judgment appealed from is reversed, and there is judgment in favor of plaintiffs Charles Rodriguez and Wayne J. Levet and against the defendants issuing a writ of permanent injunction enjoining them and others acting in their behalf from maintaining the present promotional list for captain from which to certify eligible individuals for promotion by according veterans 3 points preference, and enjoining any promotions from the list until such time as the present list is rearranged without regard to the veteran’s 3 point preference, or a new promotional list is prepared in accordance with law. The defendants are cast for such court costs as they may be statutorily required to pay.

REVERSED AND INJUNCTION ISSUED.


text:
    Columbus B. CARROLL, Plaintiff-Appellant, v. Barry Donald GUILLOT, Defendant-Appellee.
    No. 5585.
    Court of Appeal of Louisiana, Third Circuit.
    Sept. 13, 1976.

      Gold, Hall, Hammill & Little by H. B. Bruser, III, Alexandria, for plaintiff-appellant.
    Stephen E. Everett, Alexandria, for defendant-appellee.
    Ellis G. Saybe, Alexandria, for plaintiff-appellee.
    Before MILLER, WATSON and PETERS, JJ.
   WATSON, Judge.

Plaintiff, Columbus B. Carroll, sued defendant, Barry Donald Guillot, for damages sustained as the result of a battery which occurred on the lawn of plaintiff’s residence in Pineville, Louisiana, May 5, 1975. After trial on the merits, the trial court awarded plaintiff general damages in the amount of $6,000 and special damages in the amount of $2,273.65. Plaintiff has appealed, and defendant has answered the appeal.

Plaintiff Carroll contends that the damages are inadequate; Guillot that they are excessive. These contentions revolve around a dispute about the mitigating effect of plaintiff’s words prior to the battery.

Carroll is a 38-year-old diabetic bank clerk of tall but very slender build; Guillot is a plumber who lives down the street.

The facts go back some three months prior to the actual battery, when Carroll, armed with a “BB” gun, shot a dog owned by Guillot’s 10-year-old son, Chris Guillot. The intention was only to sting the dog, which was chasing Carroll’s cat, but the “BB” hit a vital spot and killed the animal. Carroll made arrangements with a neighbor who owned an expectant bitch to replace the pet.

On the date of the battery, Carroll was mowing his lawn with a riding-type mower when Guillot and Chris passed in a pickup truck. Guillot stopped and approached Carroll, who cut his mower motor. A conversation followed with Guillot inquiring as to when Carroll was going to replace the dog. According to Guillot’s testimony, Carroll made a remark about not replacing the dog until the children stopped encroaching on his yard. Guillot turned away to leave, saw that his son was upset, and turned back to deliver two forceful blows to plaintiff’s face, causing extensive damage.

According to the oral surgeon, Dr. R. Bruce Phillips, who examined him in the emergency room, plaintiff suffered a fracture of the right zygoma and zygomatic arch, a fracture of the lateral wall of the right maxillary antrum, and a fracture of the left zygoma and zygomatic arch. At the time of the trial, he had an area of paresthesia, the permanency of which was uncertain.

Carroll was hospitalized at Rapides General from May 10 to May 13 for corrective surgery.

In addition to the various fractures of the cheekbone and nasal area, he suffered three broken teeth which were later extracted. After extensive dental work, a partial plate replaced the teeth.

The decisive issue on appeal is whether the trial court abused its discretion in the award of damages to plaintiff. The parties argue certain other issues, plaintiff contending that the trial court erred in holding: (1) that the words of plaintiff immediately preceding the battery were legally sufficient to mitigate the damages; and (2) that events occurring some three months prior to the date of the battery may be considered to mitigate damages. Defendant contends that the trial court erred in failing: (1) to mitigate the special damages as well as the general damages; and (2) to receive and consider evidence on the ability of defendant to respond in damages.

As to mitigation of damages, the parties dispute the actual effect on the award of the facts found by the trial court concerning the words uttered by plaintiff. Our study of the written reasons assigned by the trial court indicates to us that the trial court found a certain amount of fault on the part of plaintiff surrounding the entire incident and there is indeed an indication that the trial court may have mitigated the award of damages on the basis of this. However, our review of the record satisfies us that the award is well within the discretion allowed the trier of fact by LSA-C.C. art. 1934. There is no abuse of discretion in the final award, and it is the final judgment of the court which is the subject of appellate review. Cf. Miller v. Chicago Insurance Company, 320 So.2d 134 (La., 1975).

Concerning defendant’s complaint that he was not allowed to produce evidence concerning his inability to respond in damages, we note that the general principle of law advanced by defendant is correct.

“Our jurisprudence is established that the defendant in a tort action may present evidence which tends to show his inability to pay general damages.” Tabb v. Norred, 277 So.2d 223 at 233 (La.App. 3 Cir. 1973); writ denied, La., 279 So.2d 694.

However, defendant failed to avail himself of the opportunity to make an offer of proof as he was entitled to do under LSA-C.C.P. art. 1636, and, having failed to do so, he cannot complain on appeal.

Therefore, the judgment is affirmed. Costs are taxed against plaintiff-appellant.

AFFIRMED.


text:
    Carrol P. NUCKOLLS, Plaintiff-Appellant, v. LOUISIANA STATE HIGHWAY DEPARTMENT et al., Defendants-Appellees.
    No. 12995.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 31, 1976.

      James B. Wells & Associates by A. R. Snell, Bossier City, for plaintiff-appellant.
    Wallace & Southerland by James D. Southerland, Benton, for defendant-appel-lee Town of Plain Dealing.
    Marshall W. Wroten, Robert J. Jones, Sharon P. Frazier, David K. Balfour by David K. Balfour, Baton Rouge, for defendant-appellee Louisiana Department of Highways.
    Mayer, Smith & Roberts by Caldwell Roberts, Shreveport, for defendant-appellee Curtis Gleason.
    Before BOLIN, PRICE and JONES, JJ.
   PRICE, Judge.

Carrol Nuckolls brought this action against Curtis Gleason, the Louisiana State Department of Highways, and the Town of Plain Dealing seeking injunctive relief and damages for flooding of his property. Nuc-kolls alleges the damages were caused by the defendants’ unauthorized alteration of the natural drain of rain waters causing the overflow onto his property.

The Department of Highways and the Town of Plain Dealing filed an exception of liberative prescription of two years.' Gleason and the Town filed an exception claiming a servitude of drain on Nuckoll’s property by ten year prescription.

The exceptions were sustained, and Nuck-olls has appealed from the judgment dismissing his demands against all defendants.

In 1948, Nuckolls inherited approximately three acres of land fronting on Louisiana Highway Three in Plain Dealing. Gleason owns the property immediately west of the plaintiff’s land. In 1955, Gleason landscaped his land and constructed an artificial ditch which terminated at the southeast corner of his land (or the southwest corner of Nuckolls’ lot). Louisiana Highway Three intersects with Louisiana Highway Two approximately one block south of Nuckolls’ tract. There is a culvert, constructed in 1954 by the Department of Highways, crossing under Highway Two about one-tenth of a mile west of the intersection. The culvert drains a surface water ditch constructed by the Highway Department on the south side of Highway Two and utilized by the Town of Plain Dealing for disposal of surface water drainage from the southwest area of the Town. The culvert empties into a ditch on the north side of the highway located on the property of Mrs. Natalie Denmon, immediately south of plaintiff’s propierty. Nuckoll’s tract receives the overflow of waters from both the Gleason land and the Highway Department’s culvert.

THE EXCEPTION OF LIBERATIVE PRESCRIPTION OF TWO YEARS

The Department of Highways and the Town of Plain Dealing rely on the prescription provided by LSA-R.S. 9:5624:

When private property is damaged for public purposes any and all damages are prescribed by the prescription of two years which shall begin to run when the damages are sustained.

Although Nuckolls admits he was aware of the flooding of his property on several occasions during 1972, he waited for a period in excess of two years to file this action in February, 1975. He contends, nevertheless, that he is not barred by the provisions of this statute as prescription was interrupted by repeated floods on his property continuing through the latter part of 1973 which is within two years of the filing of suit. Louisiana recognizes continual interruption of tort claims provided there is a single operative cause for all the damages. See e. g., Devoke v. Yazoo & M. V. R. Co., 211 La. 729, 30 So.2d 816 (1947), and Florsheim v. Department of Highways, 201 So.2d 155 (La.App. 2nd Cir. 1967). However, in the instant case the floods were distinct, separate events rather than a single cause. Prescription was not interrupted by successive flooding.

Nuckolls also contends that prescription under LSA-R.S. 9:5624 runs anew from each separate damage. Since the last flood was sometime late in 1973, he contends prescription has not run at least as to the damage caused by this flood.

The statute declares that an action for “any and all damages” must be brought within two years from the time “damages are sustained.” The purpose of the statute is to limit the exposure of the state and its political subdivisions to liability in connection with the construction of public works to a reasonable period of time. The language employed when construed in the light of the purpose of the statute precludes any suit being brought after two years from the first occurrence of any damage after the completion of the public works. Therefore, the exceptions of prescription of the Department of Highways and the Town of Plain Dealing grounded on LSA-R.S. 9:5624 are affirmed.

THE CLAIMS TO A SERVITUDE OF DRAIN

Gleason and the Town of Plain Dealing contend they acquired a continuous apparent servitude of drain on Nuckolls’ property under Article 765 of the Civil Code which provides that “continuous and apparent servitudes may be acquired by title, or by a possession of ten years.”

Since the Town of Plain Dealing has been absolved of liability by the sustaining of its exception of prescription based on LSA-R.S. 9:5624, there is no necessity to consider its claim to the servitude of drain.

Gleason carried out the landscaping on his property in 1955, which contributed to the periodical flooding of Nuckolls’ lot. This is more than ten but less than thirty years prior to the filing of this suit. Whether he has acquired the servitude of drain depends upon the effect Article 3504 of the Civil Code has upon the interpretation of Article 765. Article 3504 provides:

A continuous apparent servitude is acquired by possession and the. enjoyment of the right for thirty years uninterruptedly, even without a title or good faith.

Nuckolls contends that to give meaning to both articles, the provisions of Article 765 can only apply to a person in legal good faith; that is to say a person claiming to have a “just” title. He contends that as Gleason was without title, he could not be in good faith, and therefore, could only acquire the servitude by the prescription of thirty years under Article 3504.

There is one line of cases indicating that a servitude of drain may be acquired by a lapse of ten years without regard to title or good faith under Article 765. Hale v. Hulin, 130 So.2d 519 (La.App. 3rd Cir. 1961).

Other cases indicate some type of good faith is necessary to acquire this servitude by the prescription of ten years. Kennedy v. Succession of MeCollam, 34 La.Ann. 568 (1882). The Supreme Court in Kennedy discussed the relationship between Articles 765 and 3504 as follows:

There is no antagonism between the two articles: that which refers to the prescription of ten years, relates to those cases in which good faith is required, the other, which mentions the prescription of thirty years, concerns the cases in which no good faith is required and, therefore, applies to those where the possession is even characterized by bad faith.

Subsequent cases following the rationale of Kennedy have not clearly defined the standard of good faith required. The Fourth Circuit Court of Appeal defined the good faith requirement of Kennedy in its decision in Blanda v. Rivers, 210 So.2d 161 (La.App. 4th Cir. 1968), as follows:

* * * Thus, a distinction is apparent that the ownership of the estate is one thing, and the charge laid on an estate in favor of another estate is a quite different thing. Obviously, therefore the requirement of possession by an act sufficient in terms to transfer property in article 503 dealing with ownership of the estate, need not necessarily apply to the acquisition of a charge against the estate. LSA-C.C. arts. 3484, 3485, and 3486, defining “just title,” relate to titles of ownership of property which must be based on an instrument in writing. A servitude is not the subject of ownership apart from the ownership of the dominant estate. LSA-C.C. arts. 648, 652 and 654. Since it is at most a charge laid against an estate in favor of another estate, it is a right of different character from the right of ownership. This distinction appears to have been considered by the Supreme Court in holding that a real or predial servitude can be established by parol evidence. Therefore there is no logic in the argument that the possession required by article 765 should be preceded by an act translative of title, upon which legal good faith must always be predicated. Rather it appears that in the acquisition of servitudes only simple or moral good faith is necessary, without a “just title.” * * *

Under the Kennedy and Blanda decisions, Gleason’s estate has acquired the servitude of drain provided Gleason was in moral good faith at the time he performed the work on his property giving rise to this dispute.

There is a presumption that Gleason was in good faith provided by Civil Code Article 3481. Good faith is a subjective concept to be evaluated according to the peculiar facts of each case. As Gleason did not receive any complaint from the .owner of the adjacent Nuckolls’ estate during the ten years following-the landscaping which allegedly caused additional drainage on the Nuckolls’ tract, he was therefore in sufficient moral good faith to acquire the servitude of drain. See Vincent v. Michel, 7 La. 52, 55 (1834).

Nuckolls further contends that although he is denied damages because of prescription, he is nevertheless entitled to the injunctive relief prayed for.

As the Gleason estate has acquired the servitude of drain, Nuckolls has no right to enjoin the enjoyment of the servitude.

Injunctive relief is a much harsher remedy than the award of monetary damages. To grant such relief against the Department of Highways and the Town of Plain Dealing under the circumstances of this case would in effect circumvent the intent of LSA-R.S. 9:5624. The injunction requested was therefore properly denied.

The judgment appealed is affirmed at appellant’s cost.


author: SAMUEL, Judge.

text:
    Ernest J. CAREY v. ORLEANS INSURANCE COMPANY.
    No. 7401.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 2, 1976.
    T. M. McBride, III, Chalmette, for plaintiff-appellant.
    Milling, Benson, Woodward, Hillyer & Pierson, William C. Gambel, New Orleans, for defendant-appellee.
    Before SAMUEL, BOUTALL and BEER, JJ.
   SAMUEL, Judge.

Plaintiff filed this suit against his former employer for wages allegedly due and unpaid, and for penalties and attorney’s fees. He claims 90 days wages at $35 per day or a total of $3,150, plus a reasonable attorney’s fee. The defendant answered in the form of a general denial. Following trial on the merits, there was judgment in favor of the defendant, dismissing the suit. Plaintiff has appealed.

The evidence in the record consists of: (1) testimony given by the plaintiff and the secretary-treasurer of the defendant; and (2) various documents. Prom that evidence, which contains few conflicts, we find the following facts:

Plaintiff was employed as a staff supervisor at a salary of $175 per week. His duties required him to supervise the field agents, checking their clerical work and activities, and each day collecting the money received by them during the preceding day. On the morning of Tuesday, August 22,1972 a field agent recently employed by the secretary-treasurer failed to arrive for work and plaintiff was unable to locate him. The following morning that agent called the office and made arrangements to meet with the plaintiff. At the meeting he informed plaintiff he had spent the money collected and did not have it to return.

When plaintiff returned to the office and informed the secretary-treasurer of these facts, he was requested to give the latter a written report on the activities and possible shortages of the agent in question. Plaintiff prepared and furnished the requested report. Then an argument arose between the two men as a result of which plaintiff resigned. After discussing the wages due plaintiff for that portion of the week he had worked, they agreed on $80 and they also agreed plaintiff would return to the office on the regular pay day, the following Friday, August 25, for his pay check.

Despite that agreement, on the morning of Friday, August 25, plaintiff (who lived in Bay St. Louis, Mississippi) received a letter from the defendant which stated it was necessary that he advise the company, in writing, of the period of time devoted by him to company affairs in support of his claim for compensation due him for that part of the week he had worked. The letter, which was dated August 24, further stated when the company had this information it would be “in a position to settle your salary claim, if any, and also to take the necessary steps to recover any and all debit monies due the Company.” The letter was written over the signature of the defendant’s secretary-treasurer, but in his capacity as an attorney.

In response to the above letter, plaintiff went to the defendant’s office on August 25, made the requested report in writing, requested his pay check, and was told the check would be mailed to him. Although at that time the defendant had in its possession its signed check dated August 25 and payable to plaintiff in the amount of $69.50 ($80 salary less the usual withholding deductions), the check was not mailed. The following week plaintiff again spoke with the defendant secretary-treasurer, this time apparently by telephone, requesting his pay and again he was informed it would be mailed.

Plaintiff did not receive the check through the mail and on September 7 he had his attorney write the defendant. That letter stated in detail the work claimed to be performed by the plaintiff during the portion of the week in question and mentioned the agreed figure of $80 which was to be paid on August 25. It further stated that although plaintiff would be entitled to ninety days pay if suit became necessary, he would settle his claim for a total figure of $200 if payment were made by return mail. The letter was received by the defendant on September 11 and on September 12 defendant answered, stating the $69.50 check was in the office waiting to be picked up by the plaintiff and requesting that the plaintiff return a key to the office which he had in his possession.

The requested key was returned by plaintiff’s attorney with a letter dated September 15. That letter demanded the $200 settlement of the claim within five days and threatened suit in event such settlement was not made. On September 19 defendant answered that letter, acknowledging receipt of the office key and enclosing the August 25 check for $69.50. The check was returned by plaintiff and this suit followed.

Revised Statutes 23:631 and 23:632, upon which this suit is based, read:

“It shall be the duty of every person, employing laborers or other employees of any kind whatever when discharging any laborer or other employee, or when any such laborer or employee has resigned, within twenty-four hours after such discharge or resignation, to pay the laborer or employee the amount due under the terms of employment whether the employment is by the day, week or month, upon demand being made upon the employer by the discharged or resigned laborer or employee at the place where the employee or laborer is usually paid.” LSA-R.S. 23:631.
“Any employer who fails or refuses to comply with the provisions of R.S. 23:631 shall be liable to the employee either for ninety day’s wages at the employee’s daily rate of pay, or else for full wages from the time the employee’s demand for payment is made until the employer shall pay or tender the amount of unpaid wages due to such employee, whichever is the lesser amount of penalty wages. Reasonable attorneys’ fees shall be allowed the laborer or employee by the court which shall be taxed as costs to be paid by the employer, in the event a well-founded suit for any unpaid wages whatsoever be filed by the laborer or employee after twenty-four hours shall have elapsed from time of making the first demand following discharge or resignation.” LSA-R.S. 23:632.

To recover penalties under these statutes for an employer’s failure to pay wages owed to an employee following resignation or discharge, the employee must prove the wages were due and owing, that demand for payment was made at the place where he was usually paid, and that the employer failed to pay following demand. The burden of proof also rests upon the employee to show by a preponderance of the evidence the facts which establish his claim for the award of penalties. Since the statute is penal in nature, it must be strictly construed and penalties will not be allowed if the employer has equitable justification for not paying wages timely.

In our opinion, the record in the instant case establishes that wages in the total amount of $80 were due and owing, the demand required by the statutes was made, and the defendant failed to pay those wages following demand. The record contains no showing the amount of wages due was incorrect or in dispute, sufficient demand was made by the plaintiff on. August 23, when he completed his written report, on August 25, and during the following week, and payment was not made despite these demands.

Nor do we find any equitable justification for the failure to pay the wages due. The only possible basis for such justification would be defendant’s need for the written report and for the return of the office key, both belatedly requested in its letters. The record is devoid of any showing of any need for that written report, or of any use made thereof. And defendant’s witness admitted the return of the office key was unimportant and played no part in the wage payment. Thus, we are satisfied the defendant delayed paying plaintiff’s wages for harassment purposes, a delay sufficiently capricious as to constitute bad faith.

Accordingly, we award penalties and allow an attorney’s fee. Plaintiff is entitled to $69.50, his $80 wages less withholding deductions, and a penalty of $840, the penalty being $35 per day for a period of 24 days, i. e., from August 25 until September 19, the latter being the date on which the check for $69.50 was tendered and under the above quoted R.S. 23:632 liability for penalties ceases upon tender of payment. For prosecuting this matter in both the trial court and in this court, we believe an attorney’s fee of $500 would be reasonable.

For the reasons assigned, the judgment appealed from is reversed, and it is now ordered that there be judgment in favor of the plaintiff-appellant, Ernest J. Carey, and against the defendant-appellee, Orleans Insurance Company, in the full sum of $909.50, together with legal interest thereon from date of judicial demand until paid. It is further ordered that an attorney’s fee in the amount of $500 be allowed and that the same be taxed as costs. All costs in both courts are to be paid by the defendant-appellee.

REVERSED.

      . Taylor v. Clark, La.App., 304 So.2d 728; Otwell v. Howard Lumber & Supply Company, Inc., La.App., 283 So.2d 826; Clement v. Levenson, La.App., 236 So.2d 316.

      . Harrison v. First National Funeral Homes, Inc., La.App., 244 So.2d 102.

      . Porter v. Lombardino, La.App., 303 So.2d 493; Martin v. Burns, La.App., 267 So.2d 913; Jones v. LeBlanc, La.App., 263 So.2d 119; Jarrett v. Climatrol Corporation, La.App., 185 So.2d 63.

      . See Simon v. Crowley Industries, Inc., La.App., 287 So.2d 549.


author: ALMON, Justice.

text:
    In re Howard D. PATTON v. CITY OF DECATUR. Ex parte Howard D. Patton.
    SC 1558.
    Supreme Court of Alabama.
    June 18, 1976.

      Harvey Elrod, Decatur, for petitioner.
    Coleman, Cauthen & Bibb, Decatur, for the City of Decatur.
   ALMON, Justice.

Petitioner, Howard D. Patton, was convicted in the Recorder’s Court of the City of Decatur of driving while intoxicated in violation of a city ordinance. He appealed de novo to the circuit court and from an unfavorable jury verdict there, sought review in the Court of Criminal Appeals. The Court of Criminal Appeals affirmed his conviction.

We review only the question of whether the admission into evidence of the result of a test, conducted on a photoelectric intox-imeter showing ,18% by weight of alcohol in petitioner’s blood, was contrary to the Alabama Chemical Test for Intoxication Act. Tit. 36, §§ 154-158, Code of Alabama 1940, Recompiled 1958.

Petitioner asserts that the instant decision of the Court of Criminal Appeals conflicts with that court’s prior decision in Myrick v. City of Montgomery, 54 Ala.App. 5, 304 So.2d 247 (1974), cert. denied 293 Ala. 768, 304 So.2d 248 (1974).

We agree and reverse.

Tit. 36, § 155(a) provides inter alia that “tests authorized by this chapter . shall be admissible as evidence . . ..” (Emphasis supplied). Tit. 36, § 155(b), states:

“Chemical analyses of the person’s blood, urine, breath to be considered valid under the provisions of this section shall have been performed according to methods approved by the state board of health and by an individual possessing a valid permit issued by the state board of health for this purpose. The state board of health is authorized to approve satisfactory techniques or methods, to ascertain the qualifications and competence of individuals to conduct such analyses, to issue permits which shall be subject to termination or revocation at the discretion of the state board of health.” (Emphasis supplied).

Thus, the legislature clearly provid-ed that for such test (here, the photoelectric intoximeter or P.E.I.) to be admissible in evidence, it must “have been performed according to methods approved by the state board of health.” Such is a condition precedent to its admissibility. A proper predicate is therefore necessary.

Section 155(b) is almost identical to Sec. ll-902(c) of the uniform Vehicle Code. Do-nigan in his text, Chemical Tests and the Law (2nd ed. 1966), p. 64, states:

“Thus in order for chemical test evidence to be admissible under such a statute, the proponent must establish first that the particular test method employed in the instant case had been officially approved by the state agency, such as the breathalyzer in a breath test case . . .."

See State v. Powell, 264 N.C. 73, 140 S.E.2d 705 (1965).

In Myrick, supra, the court held the validity of such tests are conditioned on the performance being under methods approved by the State Board of Health. The court also observed, “Since this section making the analysis admissible is contrary to Common Law it must, particularly in a criminal case, be strictly construed.” Ibid. at 6, 304 So.2d at 248.

In the instant case the Court of Criminal Appeals reasoned as follows:

“Appellant contends that the City failed to prove or that witness Sharp, the operator of the Toximeter, used a device designated by the law enforcement agency, namely the police department of the City. Section (a) Act 699, Vol. II, Special and Regular Sessions, 1969 and 1970, page 1255, provides inter alia, ‘The law enforcement agency by which such officer is employed shall designate- which of the aforesaid tests shall be administered.’ (Blood, breath, or urine).
“The witness testified on direct that the Decatur Police Department by which he was employed directed him to use the Photo Electric Intoximeter that he used when testing defendant.
“In support of his objection to the question, supra, defendant further asserts that there is no proof that the methods employed by the witness, a veteran police officer of the City had been approved by the State Board of Health.
“The witness testified that he had a license, issued by the State Board of Health, to operate the Photo Electric In-toximeter.
“It appears, supra, that the witness was competent to administer the breath tests on Mr. Patton.
“The only methods that the witness was authorized to use under his license were the methods which the State Board of Health approved. This license embraced a rebuttable presumption that the licensee, Officer Sharp, in administering the test to defendant, knew and used methods and techniques approved by the State Board of Health.”

For a better understanding we have gone to the record:

“Q. Were you instructed in the methods of operating the instrument at the School in Montgomery?
“A. Yes, I was.
“Q. Did you follow those methods in administrating [sic] the tests to Mr. Patton on September 7th?
“MR. ELROD: We object to his testimony of him following the methods, there has been no testimony of any methods approved by the State Board of Health.
“THE COURT: I’ll let the question and answer stay in evidence but I’ll require that you go into some detail as to what you mean by methods. It is the State’s conclusion I think you should go into these methods, and I’ll intertain [sic] a motion to move to exclude later on unless you do clarify the matter.”

Later, the testimony continued as set out below:

“Q. Do you have any written instructions in which you or djd you have written instructions which you followed in administering the tests?
“A. Yes, sir there is a certain procedure that we follow sure [sic] we are getting an accurate reading. This procedure is outlined on a card, operators card which we follow, exactly and check off as we follow it.
“Q. Is this operating list in the form of a check list?
“A. Yes, sir.
“Q. You follow that — is this printed instructions?
“A. Yes, it is.
“Q. I hold in my hand a Photo Electric Intoximeter record is that a copy of the printed instructions?
“A. Yes, sir, this is one.
“Q. Which was in use at the time— who provided these instructions to you?
“A. You mean the instructions on the card?
“Q. Yes, sir.
“A. I don’t know for sure whether it is the Decatur Police Department or by the Department of Public Health, but they are the procedures set forth on the operation of the instrument.
“Q. You are provided these by the Decatur Police Department?
“A. Yes, sir.
“Q. Did you follow the instructions on one of these cards—
“MR. ELROD: We object to him following instructions because there is no testimony that he followed the instructions nor has it been shown the written approval of the State of Alabama or the Department of Public Health.
“THE COURT: Overruled.”

Nowhere is it shown that duly adopted methods or regulations of the State Board of Health were followed in administering the test. The trial court therefore had before it no certified methods promulgated by the Board of Health for the administration of the test and consequently was unable to ascertain standards against which the evidence could be measured.

While it is unnecessary for the prosecution to resort to the P.E.I. test in order to make a prima facie case [Broxton v. State, 27 Ala.App. 298, 171 So. 390 (1936); McMurry v. State, 28 Ala.App. 253, 184 So. 42 (1938)], the results of the test, which we hold were inadmissible, were highly prejudicial.

Our decision in the instant case does not stand for a proposition that every legislative delegation of power gives rise to a mandatory duty to promulgate administrative standards in order for that power to be validly exercised. But our inability here to ascertain the validity of the results obtained from a technologically sophisticated device due to questionable operator technique, demonstrates the absolute necessity for written procedural methods governing its use. In this regard, unwritten standards of the Board of Health are no better than no standards at all. See Sun Ray Drive-In Dairy, Inc. v. Oregon Liquor Control Comm., 16 Or.App. 63, 517 P.2d 289 (1973). The need for written standards becomes particularly acute where, as here, a finding of criminal conduct may well turn upon adherence to and rigid compliance with such standards.

Our decision, moreover, is not to be construed as a rejection of results of the photoelectric Intoximeter when introduced as evidence against persons charged with driving while under the influence of intoxicating liquor. Although intoxication levels obtained from the P.E.I. and similar blood alcohol content measuring devices have been fraught with evidentiary challenges as to their probative value in criminal proceedings; see State v. Bessette, 130 Vt. 438, 296 A.2d 179 (1972); we have been willing to accept these results and statutory presumptions which attach therefrom where the record is devoid of matters which substantially draw into doubt their accuracy. Rivers v. Black, 259 Ala. 528, 68 So.2d 2 (1953); Bonner v. State, 52 Ala.App. 346, 292 So.2d 460 (1974). Furthermore, the legislature has declared that the results of P.E.I. tests "shall be admissible as evidence.” Tit. 36, § 155(a), supra. Accordingly, in passing on a conviction which was based in part on the results of a P.E.I. test, the only concern of this court is to ascertain whether the will of the legislature has been obeyed. We hold that an affirmative response to that inquiry cannot follow where there are no written standards governing the manner in which P.E.I. tests are to be performed by state law enforcement agencies.

It would be a simple matter to profer a duly certified and authenticated copy of methods or regulations duly adopted or approved by the State Board of Health. When such copy is admitted in evidence, then the proponent could ask the witness predicatory questions.

The judgment of the Court of Criminal Appeals is reversed and the cause is remanded.

REVERSED AND REMANDED.

HEFLIN, C. J., and BLOODWORTH, MADDOX, FAULKNER, JONES, SHORES, and BEATTY, JJ., concur.

      . When the legislature declares that certain evidence is admissible, the courts are bound by that declaration. This rule prevails until the admission of that evidence runs afoul of the state or federal constitutions. Evidence can be so unreliable and inconclusive as to violate due process of law. Flurry v. State, 52 Ala.App. 64, 289 So.2d 632 (1973); United States v. Fay, 284 F.2d 426 (2 Cir., 1960); Blackburn v. State of Alabama, 361 U.S. 199, 80 S.Ct. 274, 4 L.Ed.2d 242 (1960).


author: JONES, Justice.

text:
    Wayne HARDMAN d/b/a Junction Mobile Homes v. Thomas FREEMAN and Foremost Insurance Company.
    SC 1596.
    Supreme Court of Alabama.
    Aug. 27, 1976.
    Rehearing Denied Oct. 1, 1976.
    Traylor, Baker & McGee, Fort Payne, for appellant.

      Loma B. Beaty, Fort Payne, for appellee, Thomas Freeman.
    Robert B. French, Jr., Fort Payne, for appellee, Foremost Ins. Co.
   JONES, Justice.

Is a joint tort-feasor entitled to post-judgment relief for pro tanto settlement and release entered by the other joint tort-feasor despite the fact that he was unable to plead and prove the pro tanto settlement at trial because the terms of the release were not then final? We hold that he is; therefore, we reverse and remand.

The facts are relatively simple. Thomas J. Freeman and Foremost Insurance Company filed suit against Wayne Hardman d/b/a Junction Mobile Homes (the appellant) and Winston Industries, Inc., for damages incurred when a mobile home, which was made by Winston Industries and sold by Hardman, burned to the ground. The complaint alleged that Winston Industries negligently manufactured the mobile home and that Hardman failed to inspect it. The day before the trial, Winston Industries was released from trial. In response to this release, Hardman made a motion for a continuance which was denied.

At the trial Hardman offered to prove the out-of-court settlement and pro tanto release, and Freeman and Foremost opposed this offer on the ground that no release had been finalized since the payment had not been made at that time. The trial Judge denied Hardman’s offer of proof citing Wylam Ice Company v. King, 293 Ala. 359, 304 So.2d 1 (1974). The trial ended on August 11, 1975, and resulted in a $11,497 verdict against Hardman. On September 12, 1975, Freeman and Foremost released Winston Industries from liability in return for an acknowledged payment of $9,500. Hardman filed a motion for a new trial and a motion to remit the judgment to $1,997, the difference between the judgment against him and the payment by Winston Industries. Both of these motions were denied.

The issue on appeal is whether Hardman is precluded from post-judgment relief because he was unable to prove the pro tanto release and settlement at his trial. The policy in favor of the pro tanto satisfaction for joint tort-feasors is well established' in Alabama law upon the theory that the right of action against joint tort-feasors is one and indivisible. Steenhuis v. Holland, 217 Ala. 105, 115 So. 2 (1927). However, difficulty with application of this rule arises when the joint tort-feasor who is put to trial does not raise the defense of pro tanto satisfaction until after judgment is entered against him. In such a situation, the defendant who is put to trial is not entitled to post-judgment relief if he did not raise the defense of pro tanto settlement at his first opportunity. Wylam Ice Company v. King, supra.

In the Wylam Ice case, the release and pro tanto settlement of Wylam’s joint tort-feasor were entered prior to Wylam’s trial. Wylam’s bill to enjoin enforcement of the judgment against it was denied because it did not plead or attempt to prove at its trial the release and pro tanto settlement of its joint tort-feasor.

The plaintiffs in the instant case, Freeman and Foremost, argue that Wylam Ice is authority for denying post-judgment relief to Hardman. We disagree. The requirement set out in Wylam Ice is that the defendant prove pro tanto settlement at his first opportunity. The first opportunity for Wylam Ice Company to prove the settlement was at trial because the settlement had been entered before trial. In the instant case, however, the settlement was not entered until a month after a jury verdict had been returned against Hardman. Hardman made reasonable attempts to prove that negotiations were underway for settlement at the trial but was opposed in his offer of proof by the plaintiffs and his proffer was denied by the trial Court.

The plaintiffs also argue that Hardman did not comply with ARCP 8, which requires specific pleading of special defenses such as set off. Again, Hardman had no opportunity for such a pleading because Winston Industries was not released until the day before trial, the terms of the settlement, though requested, were not disclosed, and Hardman’s motion for a continuance was denied.

The authority for granting Hardman post-judgment relief for a settlement after trial by his joint tort-feasor is Williams v. Colquett, 272 Ala. 577, 133 So.2d 364 (1961). In Williams, a release and settlement by the defendant’s joint tort-feasor did not mature as a fixed obligation until after entry of judgment against the defendant. This Court held that the defendant was entitled to post-judgment relief on these facts because it was not possible for him to plead or prove the pro tanto settlement at his trial despite his “diligent effort to discover such defense.”

There is a broad distinction between the instant case and Wylam Ice. In Wylam Ice, the defendant, with full knowledge of the settlement agreement between the plaintiff and the joint tort-feasor, elected not to submit proof of the pro tanto settlement. Having so elected, the defendant could not subsequently obtain post-judgment relief by way of set off of the pro tanto settlement against the plaintiff’s verdict.

Here, the settlement was not final until after trial and Hardman, although making “diligent effort” to do so, was prevented from proving the terms of the settlement agreement.

Under these facts, Hardman is entitled to set off the $9,500 settlement against the $11,497 verdict. The judgment of the trial Court is reversed and the cause is remanded for an order remitting the judgment against Hardman to $1,997.

REVERSED AND REMANDED.

HEFLIN, C. J., and MADDOX, SHORES and BEATTY, JJ., concur.

      . This is also commonly referred to as “a covenant not to sue.


text:
    James G. (Ben) HAGLER v. Maudie E. CLARK et al.
    SC 1363.
    Supreme Court of Alabama.
    Sept. 3, 1976.

      McDuffie & Holcombe, Tuscaloosa, for appellant.
    Turner, Turner & Turner, Tuscaloosa, for appellees.
   ALMON, Justice.

This case involves a boundary line dispute and the question of adverse possession of a disputed strip of land. The disputed strip is between an established quarter section line, which is one of the boundaries specified in the respective deeds to both parties, and an old hedgerow, which appellees claim is the correct boundary line. The trial judge, after hearing the evidence ore tenus, found that appellees had claimed to own to the hedgerow for more than ten years and had held actual, open and exclusive possession to the hedgerow continuously for more than ten years. He, therefore, concluded that the boundary line was located at the hedgerow. Prom the final judgment of the trial court, appellant brings this appeal.

The property of Maudie E. Clark, one of the appellees, lies south of the property of James G. (Ben) Hagler, the appellant.

In 1905 Henry Clarence May owned the property now owned by the appellees. A Mr. Darden owned the property now owned by the appellant. Darden and May put up a fence seventy and seven-tenths (70.7) feet north of the government survey line. The area between the government survey line and the old fence and hedgerow is the area in dispute.

Appellee Clark bought her property in 1946 from Dr. J. E. Shirley. She testified that at the time of purchase, the old fence and hedgerow were pointed out to her as the north line and that the hedgerow remained undisturbed as the dividing line until about 1971 when appellant took it down. Appellee Clark put a fence back where the old hedgerow had been located. The fence remained until 1973 when appellant again removed the fence, and this suit by appel-lees resulted.

Appellees went into possession of the property in 1946, occupying up to the hedgerow. They farmed the property for a while and then grazed cattle on it.

Appellant bought the property north of the appellees in about 1950 or 1951. He testified that when he first bought the property he bought it as “a forty” without paying much attention to the boundary lines. His deed named the quarter lines as boundary lines but only the north line going east and west had been surveyed. Shortly after he bought the property, it was brought to his attention that the boundary lines as he knew them were incorrect. This was later confirmed when a Mr. Hendrix surveyed some of the property in the area. Mr. Hendrix testified that the survey demonstrated that each parcel had been moved north by using fences and roads a long time ago. He further testified that if the old hedgerow was established as the line for the appellees, they would lose a corresponding amount of land on the south side of their property. The survey had shown that if the appellees’ land started at the section on the north and ran south, the south corner would be over in somebody else’s garage fifteen feet or more.

The evidence revealed that at some point after appellant became aware of the boundary dispute, he approached appellee Clark and discussed the situation with her and her husband. At this time appellant also owned the property to the south of the appellees. He offered to swap the disputed strip on the north end of the appellees’ property in exchange for an equal sized strip on the south end of the appellees’ property. The appellees declined the offer.

According to the testimony, the next time the boundary lines were discussed was in 1965. At that time appellee Clark asked appellant for a quitclaim deed to the disputed area and appellant refused to give her one.

Appellant maintains that the evidence in this case and the law of Alabama do not support the ruling of the trial court that appellee acquired title to the disputed tract of land by holding actual and exclusive possession for more than ten years. We disagree.

“If a coterminous landowner holds actual possession of a disputed strip under a claim of right openly and exclusively for a continuous period of ten years, believing that he is holding to the true line, he thereby acquires title up to that line, even though the belief as to the correct location originated in a mistake, and it is immaterial what he might or might not have claimed had he known he was mistaken.” (Citations omitted). Sylvest v. Stowers, 276 Ala. 695, 697, 166 So.2d 423, 426 (1964).
“The rule has been applied in boundary line disputes that questions of adverse possession are questions of fact properly determined by the trier of facts, and that the determination so' made, where the evidence is taken orally, as here, is favored with a presumption of correctness and will not be disturbed on appeal unless plainly erroneous or manifestly unjust.” (Citations omitted). Casey v. Keeney, 290 Ala. 94, 98, 274 So.2d 68, 71 (1973).

Here, it was undisputed that appellant learned of the incorrect boundary after he bought the property and, although he discussed the disputed strip of land with appel-lees a few times, he never took any action to gain control of the strip for a period exceeding ten years. During this period appellees claimed the land as their own, farmed it, and grazed cattle on it. So open and notorious was the appellees’ position of the disputed strip that most of the witnesses who testified stated that they had assumed that the hedgerow was the boundary.

Appellant contends that the affidavit of Henry Clarence May should not have been admitted in evidence because it was ex parte and offered to prove adverse possession.

The affidavit in pertinent part is as follows:

“My name is Henry Clarence May. I am known in the community in which I live as Harry May. I am ninety (90) years of age and have lived in the community of the hereinafter described property since 1897. In 1907 I purchased the property now owned by Mrs. Charles W. Clark (Maude Clark) from W. C. Patrick. The description in my deed and in the Clark deed was the same, i. e.
“At the time I purchased the property D. W. Darden owned the forty (40) acres north of me. This property is now owned by James G. (Ben) Hagler. Mr. Jim R. Caldwell owned the property adjoining me from the south. In the year 1905 Mr. Darden and I established the north line of my property and put up a fence. This same line has, since the year 1905 to the present time, been recognized as the boundary line between the property now owned by Mrs. Clark and Mr. Hagler.
“In 1908 Mr. Caldwell and I established the south line of the property owned by me at that time and now owned by Mrs. Clark. The south line has remained the same and been recognized as being the south line from the year 1908 to the present time.
“I know of my own personal knowledge that since the year 1905 both the north and south line as now indicated by fences have remained exactly the same as established in 1905. The persons who have owned the property since 1905 are John Carr, R. C. Patrick, G. H. and E. L. Dawson, R. C. Patrick, J. E. Shirley, Henry Snyder, and Charlie Clark, Jr., and his wife, Maude Clark. Charlie Clark, Jr., died in 1964. Each and every one of the owners of this property have openly, notoriously, and peacefully occupied the property from the south line as established in 1908 to the north line as established in 1905, said lines being the same as are now located by fences, each of the owners of this property have openly, notoriously and adversely claimed said property as against all the world and the possession has been peaceful.”

Affidavits meeting the requirements of Tit. 47, §§ 116 and 117, Code of Alabama 1940, Recompiled 1958, are admissible when material to the issues. Cloud v. Southmont Development Company, 287 Ala. 544, 253 So.2d 298.

The judgment is hereby affirmed.

AFFIRMED.

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


author: MADDOX, Justice.

text:
    John SMITH v. SOUTHEASTERN FINANCIAL CORPORATION, a corporation.
    CER-6.
    Supreme Court of Alabama.
    Sept. 10, 1976.

      Robert M. Hill, Jr., Florence, for John Smith.
    Philip A. Geddes, Huntsville, for Southeastern Financial Corp.
    William J. Baxley, Atty. Gen. of Ala., and Winston T. Lett, Asst. Atty. Gen. of Ala., amicus curiae, in support of Southeastern Financial Corp.
   MADDOX, Justice.

The United States Court of Appeals for the Fifth Circuit certified to our Court pursuant to Article 5, Section 140(b)(3) of the Alabama Constitution, as amended, 1973. The facts and questions certified to this Court are as follows:

“Appellee, Southeastern Financial Corporation (‘Southeastern’), instituted this action against Appellant, John Smith (‘Smith’) for recovery of three worthless checks, together with a reasonable attorney’s fee and punitive damages.
“Prior to the events underlying this action, Southeastern entered into a factoring agreement with Danube Carpet Mills, Inc., whereby Southeastern received Danube’s accounts receivable for collection. The accounts so factored were ‘without recourse’, i. e., Southeastern shouldered the risk of noncollection. In return, Southeastern received from Danube a commission on the account of one per cent (1%) and interest at the rate of two per cent (2%) above the current prime rate.
“Carriage House Mobile Homes, Inc. purchased carpet from Danube for use in its manufacture of mobile homes. Carriage House purchased such carpet on open account.
“Smith was employed by Carriage House as its dispatcher and was also a stockholder in the corporation. Sometime after his purchase of stock, Smith was approached by Woody Lacy, President of Carriage House, and asked to be Secretary-Treasurer of the corporation and co-signatory on all corporate checks. Smith agreed.

Catherine Thrasher, secretary and bookkeeper for Carriage House prepared a ‘daily management report’ of the corporation, showing the daily balance in the general corporate checking account. Despite the fact that Smith was furnished with a copy of the report, he rarely relied on it, leaving the daily finances of the corporation to Lacy and Ms. Thrasher. Despite his capacity as an officer, Smith’s working office was in a small trailer behind the brick office which housed the other corporate offices.

“Smith’s co-signatory on the corporate checks was Mr. Lacy. Ms. Thrasher brought the checks out to defendant’s office for his signature. At times, he would figure, along with her, the amount the corporation could expect as income from the sale of trailers and thus the amount the corporation would have available to disburse to suppliers. Occasionally he would sign sheets of checks in blank, leaving it to Lacy to make the final decision as to the amount and the payee.

“On November 5, 1973, Carriage House established a General Account with First State Bank of Phil Campbell, both Lacy and Smith being co-signatories on the checking account. At the same time, an arrangement was made between the bank and J. H. Porter, at that time the majority stockholder, which had the following effect: Porter established a personal account upon which the bank could draw to cover checks deposited by the corporation which were dishonored by either the drawer or the drawee bank. In this way, checks deposited in the corporation were honored immediately, without the bank’s waiting for the checks to clear.

“On December 4, 1973, Porter sold his remaining stock in Carriage House and ended his ‘guarantee’ with the bank. Thereafter, Porter continued to assert control of the corporation by continuing to intercept checks destined for the corporation and to direct them to his own use. This action was done to protect his funds against a loss of the funds he had placed in escrow to guarantee the corporation receipts.

“In the latter part of November, 1973, the corporation began a rapid decline. Approximately $48,000.00 worth of dealers’ checks, payable to the account of Carriage House were dishonored, plus Porter intercepting other dealer checks. During this time, and up until the account went inactive on December 21, 1974, approximately $140,000.00 in checks were drawn against the general account, for which there were inadequate funds to cover them.

“During this period, Smith continued to sign cheeks drawn against the corporate account. While he knew that the daily management reports often indicated a negative balance, he nevertheless thought that the checks coming in from dealers would be adequate to cover the checks issued to suppliers. Smith knew that Porter had sold his stock to Gooch and that Porter was intercepting some of the checks coming in from dealers.

“Danube Carpet Mills, and subsequently Southeastern, received three bad checks from Carriage House. The first, Check No. 512 (Plaintiff’s Exhibit 3), was in the amount of $3,684.82. It was dated November 27, 1973, and was apparently written to cover goods invoiced from Danube November 5, 1973 (Defendant’s Exhibit 3). The second, Check No. 597 (Plaintiff’s Exhibit 2), was in the amount of $4,252.54. It was dated December 4,1973, and was written to cover goods invoiced from Danube on November 15, 1973. The third, Check No. 710 (Plaintiff’s Exhibit 1), was in the amount of $5,963.18. It was dated December 11, 1973, and was written in payment »of goods invoiced from Danube on November 25, 1973 (Defendant’s Exhibit 5), and on November 30, 1973. Each of the three checks was presented for payment to the drawee bank at undetermined times in December, and each was refused.

“On January 1, 1974, the total stock of the corporation was transferred to one Chuck Jackson. Mr. Smith was to receive a consideration of $4,500.00 for his shares; however, this was never paid. The sale was negotiated by Gooch, who arranged for Jackson to purchase the entire interest in Carriage House.

“CONCLUSIONS OP LAW.

“The defendant, Smith, knew or should have known the financial condition of Carriage House. After the date of December 1, 1973, any expectation of payment of said corporate checks on the part of Smith was unreasonable as a matter of law. The defendant, Smith, was not guilty of active fraud and was not a participant in any knowing scheme to defraud Danube or Southeastern. His conduct amounted to a willful omission to act or gross and willful misfeasance.

“QUESTIONS TO BE CERTIFIED.

“1. Under the provisions of Title 7, Section 131(1), Code of Alabama 1940, as amended, does willful misfeasance or willful omission to act amount to an ‘unlawful’ utterance?

“2. Would payment of an antecedent debt sustain a cause of action under the provisions of Title 7, Section 131(1), Code of Alabama 1940, as amended?

“3. To recover under the provisions of Title 7, Section 131(1), Code of Alabama 1940, as amended, must plaintiff show detrimental reliance, injury or damage as a result of the action?”

The underlying question before the Court is what must a plaintiff allege to state a cause of action under Alabama’s Civil Worthless Check Act, [Act No. 567, Acts of Alabama, 1959, p. 1426, carried as Title 7, § 131(1), Code of Alabama 1940 (Recomp. 1958)] which provides:

“Section 1. The holder of a worthless check, draft, or order for the payment of money shall have a right of action against the person who unlawfully made, uttered, or delivered the same to him or to his endorser. And such action may be maintained though there has been no prosecution or conviction or acquittal of the defendant for his unlawful act. Such action must be brought within one year from the date of the unlawful act. The plaintiff in such action may recover such damages, both punitive and compensatory, including a reasonable attorney fee, as the jury or court trying the case may assess.” [Emphasis added.]

All parties admit that the key word in the statute is “unlawfully.” By looking to the companion criminal statute [Act 566, Acts of Alabama 1959, p. 1424 and subsequently replaced by Act 2479, Acts of Alabama 1971, p. 3948, carried as Title 14 § 234(9) et seq.] we can best understand what conduct the Legislature envisioned as constituting the unlawful making, uttering or delivering of a worthless check.

Under the Act making it a crime, to issue a worthless check, there are three elements: (1) drawing the check, (2) with intent to defraud, (3) knowing that there are insufficient funds to cover the check. The Civil Worthless Check Act, by using the word “unlawful,” and by allowing a civil action to be maintained regardless of whether a criminal action has been instituted, promotes the private Attorney General concept. Consequently, we feel that the Legislature intended the word “unlawful” to have the same meaning in both statutes. Therefore, in order to present a claim under the Civil Worthless Cheek Act, the plaintiff must allege that the defendant drew the cheek, had the intent to defraud, and knew that the check would not be honored. See Tolbert v. State, 294 Ala. 738, 321 So.2d 227 (1975), for a discussion of “intent to defraud.”

We come now to the first certified question. “Under the provisions of Title 7, § 131(1), Code of Alabama 1940, as amended, does willful misfeasance or willful omission to act amount to an unlawful utterance?” We answer in the negative. Cf. Jones v. Freeman’s Dairy, 283 App.Div. 667, 127 N.Y.S.2d 200, mod. on other grounds, 283 App.Div. 806, 129 N.Y.S.2d 498 (1954). Knowledge that checks are worthless does not necessarily amount to a fraudulent intent, if the checks are given for antecedent debts. Berry v. State, 153 Ga. 169, 111 S.E. 669 (1922), Commonwealth v. Hammock, 198 Ky. 785, 250 S.W. 85 (1923), State v. Blasi, 64 N.J. 51, 312 A.2d 135 (1973).

“Intent to defraud” requires a scheme to unfairly deprive someone of something of value. There may be instances in which one has the requisite intent to defraud when writing a worthless check for an antecedent debt (i. e. to secure a further extension of credit).

The second certified question has been foreshadowed by our answer to the first question. The second question is: “Would payment of an antecedent debt [by use of a worthless check] sustain a cause of action under the provision of Title 7 § 131(1), Code of Alabama 1940, as amended?” We hold that it would — provided the check was drawn with “intent to defraud.” 32 Am.Jur.2d, False Pretenses, § 78, and Annotation 59 A.L.R.2d 1159, 1163.

The final question is: “To recover under the provision of Title 7 § 131(1), Code of Alabama 1940, as amended, must plaintiff show detrimental reliance, injury or damages as a result of the action?” We hold that he does not have to make such a showing. The Legislature has created a statutory cause of action allowing recovery against one who has written a worthless check with “intent to defraud.” If there is a showing of the requisite “intent to defraud,” a plaintiff need not show, though he may desire to, that he relied on the representation to his detriment.

CERTIFIED QUESTIONS ANSWERED.

HEFLIN, C. J., and BLOODWORTH, FAULKNER, JONES, ALMON, SHORES, EMBRY and BEATTY, JJ., concur.