author: SUGG, Justice.

text:
    Danny W. INGRAM v. STATE of Mississippi.
    No. 48900.
    Supreme Court of Mississippi.
    March 9, 1976.
    Rehearing Denied May 11, 1976.

      Johnston, Pritchard & Wright, Pasca-goula, for appellant.
    A. F. Summer, Atty. Gen. by John C. Ellis, Sp. Asst. Atty. Gen., Jackson, for ap-pellee.
    Before PATTERSON, ROBERTSON and SUGG, JJ.
   SUGG, Justice.

We have considered defendant’s nine assignments of error, but only two require discussion. (1) Was the indictment against defendant void because it was returned by a grand jury empanelled in April 1974 and reconvened September 23, 1974 after an intervening term of court in July? (2) Was there a fatal variance between the indictment and the proof offered by the state ?

Defendant was convicted in the Circuit Court of Jackson County for the sale of heroin and sentened to a term of ten years in the state penitentiary. He argues that under our decisions in Joyce v. State, 1976, 327 So.2d 255 and Tubby v. State, 1976, 327 So.2d 272, the indictment was void.

In Joyce defendant was indicted in October 1974 by a grand jury which was em-panelled at the July 1974 term of the Rankin County Circuit Court and reconvened after the August 1974 civil business term intervened. Mississippi Code Annotated section 9-7-53 (1972) provides for circuit court terms in Rankin County in the following language:

Rankin County: On the second Monday of January, thirty-six (36) days; on the first Monday of May, eighteen (18) days for civil business exclusively; on the second Monday of July, eighteen (18) days; on the third Monday of August, twelve (12) days for civil business exclusively; and on the second Monday of October, twenty-four (24) days.

We held that the grand jury was legally reconvened under the statute and under Article 14, Section 264 of the Mississippi Constitution, as amended in 1972, and stated:

The primary purpose in amending Section 264 was to allow a grand jury to remain empaneled until the next term of criminal court. The intervening August 1974 term of court, according to legislative mandate in Mississippi Code Annotated section 9-7-53 (1972), was “for civil business exclusively”. The October, 1974, term was the next term of court at which criminal business could be heard and a grand jury empaneled, but this term could not legally open until October 14, 1974. The court was correct in recalling the July 1974 grand jury to act in vacation between terms.

In Tubby, supra, defendant was indicted at the September 1974 term by a grand jury empanelled at the September 1973 term of the Circuit Court of Neshoba County. The same grand jury was reconvened for service during the February 1974 term. When the grand jury was initially empanelled the court terms in Neshoba County were fixed by Mississippi Code Annotated section 9-7-27 (1972) as follows :

Neshoba County: On the first Monday of February, eighteen (18) days; on the third Monday of September, twelve (12) days; and on the fourth Monday of October, twelve (12) days for civil business exclusively.

The court terms in Neshoba County were changed by Chapter 319, Laws of 1974, effective March 5, 1974, as follows:

Neshoba County: On the first Monday of February, eighteen (18) days; on the second Monday of July, twelve (12) days for civil business exclusively; on the third Monday of September, twelve (12) days; and on the fourth Monday of October, twelve (12) days for civil business exclusively.

In Tubby we held that the motion to strike the indictment should have been sustained and stated:

The second assignment of error wherein the appellant contended during the trial, and now contends here, that the indictment is void, is well taken. A grand jury may be impanelled at a regular term of court, and it may be recalled at any time before the next criminal term of court in term time or in vacation, but when a new criminal court is convened, a new grand jury must be im-panelled. The old grand jury may, however, report indictments obtained in vacation when it makes its final report for final discharge, but, the old grand jury cannot hear evidence and obtain indictments at the second term of the criminal court.
Section 2436, Mississippi Code Annotated 1942 (Rec. 1956) is not applicable to the facts in this case since the indictment was returned by a body of men who were no longer authorized to act as grand jurors. See Joyce v. State, Miss., 327 So.2d 255, 1976.

In our case, the statute fixing the terms of court in Jackson County differ from the statutes involved in Joyce and Tubby in that it specifically provides that a grand jury shall be empanelled at the April and October terms, but leaves the empaneling of a grand jury at the January and July terms discretionary with the circuit judge. Mississippi Code Annotated section 13-5-39 (1972) provides that a grand jury shall not be empanelled for more than two terms of circuit court in each year unless otherwise directed by the circuit judge. The statute requiring two grand juries in Jackson County at the April and October terms, and leaving the empaneling of grand juries at the January and July terms discretionary with the circuit judge, is consistent with section 13 — 5— 39.

Since the statute under consideration is different from those considered in Joyce and Tubby, and since these cases used, without explanation, the words “criminal term” to designate the term at which a grand jury should be drawn and empanelled, it is necessary to define “criminal term” to avoid confusion. “Criminal term” as used in Joyce and Tubby means any term of circuit court fixed by statute unless (1) the statute limits the term to civil business only, or unless (2) the statute specifically gives the circuit judge discretion in the matter of empaneling a grand jury, and none is empanelled. Both civil and criminal cases may be tried at any term unless one class of cases is prohibited by the statute fixing the term.

In our case, the grand jury which indicted defendant was empanelled for the April 1974 term and recalled on September 23, 1974. The July 1974 term intervened between the time the grand jury was em-panelled in April and reconvened in vacation in September. Defendant contends that any indictment returned by the grand jury when it reconvened in September was void under the holding of Tubby, supra. He argues that since both civil and criminal cases could be tried at the July term, the July term was a criminal term. It is true civil and criminal cases could be tried at the July term; however, since the calling of a grand jury was discretionary with the judge and none was called, the April grand jury could be recalled at any time after the July term and before the October term which was the next term of court in Jackson County requiring that a grand jury be empanelled. This holding is consistent with our definition of the term “criminal term” as used in Joyce and Tubby.

Of course, if a grand jury had been em-panelled at the July 1974 term the April grand jury could not have been recalled after another grand jury had been empan-elled at the July term because two grand juries cannot exist in a county at the same time. It naturally follows that when a term of court is convened where a grand jury is required to be drawn the old grand jury is automatically discharged and, as stated in Tubby, may only report indictments obtained in vacation and make its final report. It also follows that a circuit judge may discharge a grand jury at any time.

By way of summary, the effect of Joyce, Tubby and this case is that a grand jury empanelled may not serve after the intervention of a succeeding term of circuit court unless (1) the intervening term is designated for civil business only, or unless (2) the intervening term is one where the judge is specifically given discretion in the matter of empaneling a grand jury, and a new grand jury is not empanelled. The discretion given a circuit judge by Section 13-5-39 to empanel only two grand juries in any given year does not satisfy the requirements of exception (2) in this paragraph.

The second contention of the defendant is that there was a fatal variance between the indictment and the proof. Defendant argues that he intended to give the three grams of heroin to Mack in exchange for an introduction to a person from whom he could buy a large quantity of heroin. He also argues that the money was never placed in his hands; therefore, a sale was not completed, and since he was charged with selling heroin, there is a variance between the indictment and the proof.

On May 10, 1974 Ronald Mack was arrested for possession of heroin. After his arrest he agreed to call the defendant and “set up” a purchase of heroin from the defendant. The telephone conversation between Mack and the defendant was taped and the defendant introduced the taped conversation in evidence. In the conversation Mack asked the defendant, “if he could bring him 3 g’s” to which inquiry defendant responded with a question, “Uh . where at?” Mack told him, “the same place” and the defendant replied, “All right.” The time for the meeting was agreed on between Mack and the defendant in the course of the telephone conversation.

Following this telephone conversation Mack and Dean Shepard, an agent for the Mississippi Bureau of Narcotics, met defendant, who was accompanied by his wife. After defendant arrived, Mack and Shepard went to defendant’s car. Mack entered the car and sat on the backseat at which time defendant handed the heroin to Mack who in turn handed it to Shepard. Shepard asked defendant how much he wanted for the heroin and the defendant replied $125 per gram. Shepard also asked the defendant if the heroin was good stuff and the defendant replied: “Yes, it was real good, or some words of that nature.” Shepard than asked defendant if he had change for a bill and defendant replied that he did not. Shepard went to a drive-in window, changed a bill, came back and counted out $375 for the purchase price of the heroin and tendered the money to the defendant. The defendant did not take the money but told Shepard to give it to Mack. Immediately after the money was given to Mack, two other agents who had the entire scene under surveillance appeared and arrested the defendant.

Defendant testified that he was an informer for the Drug Enforcement Administration and that Jack Taylor was his immediate superior. He testified that he had “set up” some people for the federal narcotics agent in the past and had also worked with the Mod Squad in Mobile, Alabama. He denied that he quoted a price of $125 per gram for the heroin because he intended to give Mack the heroin in exchange for an introduction to an individual from whom he hoped to purchase a large quantity of heroin. Although, according to defendant, it was his purpose to give Mack heroin in exchange for information about a person from whom he could purchase narcotics, when Shepard appeared he did not attempt to pursue his avowed purpose of purchasing narcotics, but instead, according to Shepard and Mack, quoted a price for the heroin which he had just delivered to Mack.

He also testified that he talked to Taylor three days before the events of May 10, 1974 and told Taylor he might be onto something big. He denied that he brought the heroin to Mississippi to sell it. His testimony about the events in the automobile were corroborated by his wife who was present.

Taylor testified in rebuttal that defendant gave him some information in August 1973 which resulted in an arrest in March 1974. Taylor contradicted defendant’s testimony with reference to being presently employed by the Drug Enforcement Administration as an informer. He stated that defendant was not in his employ as an informer on May 10, 1974 and he had never authorized defendant to give heroin to any person in exchange for information. He further testified that he had no idea that defendant was in Jackson County on May 10, 1974.

The facts created a jury question and we hold that the jury was justified in finding that a sale was made by defendant to Shepard even though the money never actually reached the hands of defendant. The evidence that defendant quoted a price for the heroin, following which the money was counted out, tendered to him, and then handed to Mack at the direction of defendant is sufficient to support the jury’s verdict.

This case was considered en banc and all Justices concur.

Affirmed.

GILLESPIE, C. J., PATTERSON and INZER, P. JJ., and SMITH, ROBERTSON, WALKER and BROOM, JJ., concur.

      . Mississippi Code Annotated, section 99-11-35 (1972).

      . Mississippi Code Annotated, section 9-7-49, as amended, (Supp.1975). Jackson County: On the second Monday of April and on the first Monday of October, eight (8) weeks, at which terms a grand jury shall be empanelled; and on the second Monday of January and the second Monday of July, eight (8) weeks each, at which terms no grand jury shall be drawn or empanelled except by order of the judge.

      .Section 13-5-39 is subject to specific statutes requiring that grand juries be empanelled at more than two terms in certain counties. See Mississippi Code Annotated section 9-7-15 (1972). Statutes such as 9-7-31 which provide that no grand jury shall be drawn or empanelled at a particular term do not prohibit an existing grand jury from being recalled by the circuit judge in vacation following such term and before the next term at which a grand jury could be empanelled. There is a difference between drawing and empaneling a grand jury and recalling a grand jury.


source: Caselaw Access Project

author: HEFLIN, Chief Justice. BLOODWORTH, Justice

license: Public Domain

text:
    Renee ISBELL and Terry Isbell v. CITY OF HUNTSVILLE.
    SC 1423.
    Supreme Court of Alabama.
    April 9, 1976.

      George A. Moore, Huntsville, for appellants.
    David C. Craddock, Huntsville, for ap-pellee.
   HEFLIN, Chief Justice.

Plaintiffs appeal from a summary judgment granted the defendant City of Huntsville. This court reverses and remands the trial court’s action.

The motion for summary judgment was before the court based on the complaint, affidavits of plaintiffs Terry and Renee Isbell and an affidavit given by Woolsey Finnell, Jr., the Engineer of Public Works for the City of Huntsville.

The facts which can be gleened from these moving papers are best highlighted by the affidavit of plaintiff Renee Isbell which reads in part:

“At approximately 8:20 p. m. on August 29, 1974, I was a passenger in an automobile being driven by my husband on Sth Street in the City of Huntsville, Madison County, Alabama. We were in the process of traveling from our apartment to the home of our parents. It was raining and the roads were wet. We were approaching what appeared, at a distance, to be a railroad crossing. I could not tell that 5th Street did not cross a railroad tracks. There were not any traffic control signs of any kind to warn us that 5th Street did not cross the railroad tracks. There were no barricades or guard rails to warn an automobile driver that 5th Street did not continue across the railroad tracks. We were traveling within the speed limt. By the time we were close enough to see that 5th Street did not cross the railroad tracks, it was too late to stop our automobile. Our automobile collided with the railroad tracks and with the gravel and dirt on either side of the railroad tracks.”

Based on the facts set out in the affidavits, it appears that plaintiffs were faced with an illusion created by the proximity of the street upon which they were driving to the railroad tracks of defendant railroads. The rainy weather conditions and the sharpness of a right turn in the road allegedly prevented plaintiffs from perceiving that the road did not cross the tracks until too late to prevent their leaving the road and hitting the tracks.

The complaint was originally filed by plaintiffs against “Southern Railway Company, a corporation, L & N Railroad Company, a corporation, and the City of Huntsville, Alabama, a municipal corporation.” In the complaint, plaintiffs first charged the city with liability for its “neglect, carelessness [or] failure * * * to remedy some defect in the streets, alleys or public ways * * * after the same had been called to the attention of the Council of the City of Huntsville, * * * or after the same had existed for such unreasonable length of time as to raise a presumption of knowledge of such defect on the part of the Council.”

The complaint then charged negligence on the part of defendant railroads for allowing or permitting “a situation to exist so that it appeared to a motorist that 5th Street located in the City of Huntsville, Alabama, crossed the railroad tracks owned and operated by these defendants” and for failing “to properly maintain their railroad tracks * *

The defendant railroads were subsequently dismissed from the suit on plaintiffs’ motion after a settlement agreement was reached between plaintiffs and railroads and pro tanto releases executed. The city moved for summary judgment, citing Title 37, §§ 502-03 of the Alabama Code, and the trial court granted the motion. The issue before this court on appeal is whether the trial court’s action in granting the motion was correct.

The language used by plaintiffs in their allegation of liability against the City of Huntsville is taken directly from Title 37, section 502, Code of Alabama (Recompiled 1958) , The liability created by this statute was thoroughly delineated by this court in the case of City of Birmingham v. Carle, 191 Ala. 539, 68 So. 22 (1915). In his opinion, Justice McClellan described this statute as establishing two classes of liability:

“In the first class (a) are wrongs or injuries resulting from negligence of agents, etc., of the municipality, consistent with the doctrine of respondeat superior; and in the second class (b) are wrongs or injuries for which the municipalities are only liable for culpable neglect to remedy a condition negligently created or made or allowed to exist by a person or corporation not related in service to the municipality — a stranger to the municipal service or function.”

191 Ala. at 542, 68 So. at 23.

The opinion also describes the requirements of section 503, which must be read in pari materia with section 502:

“[Section 503] requires that, where the municipality is sued, the person or corporation within the second class (b) defined in section [502] shall be joined as a defendant, unless on appropriate demand the name of the so culpable person or corporation (stranger to the municipal service or function) is not furnished by the mayor within ten days after the demand ; and an additional requirement and method for the joinder of such person or corporation is provided, where it develops that a person or corporation, within the second class (b) defined in section [502], liable for the consequences of his or its culpable wrong, should have been originally joined as a defendant; and the plaintiff’s failure to amend, so as to bring in such person or corporation as a defendant requires the nonsuiting of the plaintiff.
“There is further provision in- that statute (section [503]) forbidding the rendition of judgment against the municipal defendant under certain circumstances. According to this statute (section [503]), the circumstances under which judgment cannot be rendered against the municipal defendant alone are these: Where it is shown that the injury or wrong for redress of which the plaintiff sues was the proximate result of a defect created or existing by reason of the negligent act or omission of a person or corporation not related to the municipal service or function and for the culpable failure of the municipality, to remedy which defect the municipal defendant is made only solely jointly liable with such culpable person or corporation, unless there have been no service upon the person or corporation so initially culpable in the premises, or unless the judgment is rendered in favor of such person or corporation on some personal defense interposed by such person or corporation. The manifest legislative purpose was to prevent the rendition of judgment against the municipality for culpable neglect in respect of a condition not initially created by it, but for the negligent failure to remedy which it is made liable. In other words, where a defendant, within the description of the second class (b) of section [502], is joined with the municipality as a defendant and served with process, judgment against the municipality alone cannot be rendered, unless the person or corporation, whose primary culpable act or omission give rise to and affords the essential basis for the municipal neglect to remedy the defect, as (Refined, is also adjudged liable, provided the liability of such person or corporation is not averted by some personal defense.” (Emphasis added).

191 Ala. at 542-43, 68 So. at 23-24. In City of Birmingham v. Corr, 229 Ala. 321, 323, 157 So. 56, 57 (1934) the court stated:

“These statutory provisions are limited to cases where the injury results from the initial wrongful act of some third person for whose acts the city is not responsible under the doctrine of responde-at superior, and the city’s liability arises from negligent failure to remedy the conditions created by such third person.”

See City of Anniston v. Hillman, 220 Ala. 505, 126 So. 169 (1930); City of Birmingham v. Norwood, 220 Ala. 497, 126 So. 619 (1930); City of Decatur v. Gilliam, 222 Ala. 377, 133 So. 25 (1931).

In their allegation of negligence against the city, the plaintiffs use the language of section 502 which has been construed to establish the second class of liability. But based on the facts set out in their affidavits, their complaint could be interpreted to allege that their injuries were in fact proximately caused by the negligence of the city in failing to warn them of a dangerous condition near the roadway. Under this interpretation, section 503 requirements would only apply if, on the trial of the case, the jury determined that the dangerous condition was initially created by a wrongful act of the railroad. Cooper v. City of Fairhope, 263 Ala. 619, 83 So.2d 321 (1955); City of Montgomery v. Ferguson, 207 Ala. 430, 93 So. 4 (1922).

The complaint in the case of Cooper v. City of Fairhope, supra, was drawn in the same language as the complaint in the case before this court. There the city alone was named as defendant and the alleged defect was the failure of the city to put up a warning sign or barrier at the end of a street which dead-ended at the bottom of a slope and was abutted by a lot with a house some 20 feet from the street. Even though the court found no liability under the facts of that case, in discussing a city’s duty to' place traffic control signs the court stated,

“[I]f a dangerous condition exists outside the street limits but so near thereto that it endangers travel thereon because of the want of protecting barriers, warnings or lights with the probability of injury therefrom, then the city can be held liable.”

263 Ala. at 622, 83 So.2d at 323. Even where the city did not cause the defect, if it was not initially caused by the wrongful act of another then the city has a separate duty to either correct the defect or warn members of the public of its existence. See City of Bessemer v. Brantley, 258 Ala. 675, 65 So.2d 160 (1953).

This conclusion is also supported by the court’s decision in City of Montgomery v. Ferguson, 207 Ala. 430, 93 So. 4 (1922). There the complaint was framed in the same language as the complaint presently before the court, charging the City of Montgomery for its failure to put up warning signs where a street car trestle intersected a railroad cut with a bridge which was narrower then the street itself, leaving an open space of four feet between the trestle and a footbridge that the city maintained nearby. Plaintiff, walking at night, fell through this space, down into the railroad cut, sustaining serious injuries. The city gave plaintiff the name of the street car company and it was joined as a defendant. An affirmative charge was given in favor of the street car company and the city requested a charge that a judgment could not be brought against the city alone under certain conditions because of section 503. Denial of this charge was upheld by this court in the following language :

“Under the evidence here, a case of initial negligence on the part of some third person disconnected with the city was not presented. If the defendant receiver was guilty of any negligence at all (a question, as above stated, we are not in a position to review), it would not have been an initial wrongdoer, but at most only jointly and cooperatively negligent with the city, and the statute [Tit. 7, sections 502, 503] would be without application. City of Birmingham v. Carle, 191 Ala. 539, 68 South. 22, L.R.A.1915E, 797.”

207 Ala. at 433, 93 So. at 7.

A motion for summary judgment may be granted only where the moving papers show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Birmingham Television Corp. v. Water Works, 292 Ala. 147, 152, 290 So.2d 636, 642 (1974); Comments, Rule 56, A.R. C.P. This standard has been interpreted to require that “all reasonable inferences from the facts be viewed most favorably to the non-moving party.” Folmar v. Montgomery Fair Company, Inc., 293 Ala. 686, 690, 309 So.2d 818, 821 (1975).

After a consideration of the pleadings and affidavits before the trial court and in light of the above stated tests for assessing the merits of a motion of summary judgment, it appears to this court that defendant has not met his burden of showing that plaintiffs cannot prevail under any discernible circumstances. See Folmar v. Montgomery Fair Company, Inc., 293 Ala. 686, 690, 309 So.2d 818, 822 (1975). Conceivably plaintiffs could present evidence to show initial negligence on the part of the city. Such proof if believed by a jury would take the case from under the influence of section 503 and would leave a disputed question of fact for the jury to determine regarding the liability of the city. On the other hand, if primary liability of the railroads should appear upon the trial of the case, a directed verdict or judgment notwithstanding the verdict would be proper.

This court finds that summary judgment was improperly granted and therefore reverses.

REVERSED AND REMANDED.

MADDOX, JONES, ALMON and SHORES, JJ., concur.

MERRILL, BLOODWORTH, FAULKNER and EMBRY, JJ., dissenting.

BLOODWORTH, Justice

(dissenting).

The complaint was filed by plaintiffs against “Southern Railway Company, a corporation,” the “L&N Railroad Company, a corporation” and the “City of Huntsville, Alabama, a municipal corporation.” The complaint charges that defendants Southern Railway and L&N Railroad negligently failed “to properly maintain their railroad tracks” and “negligently allowed or permitted a situation to exist so that it appeared to a motorist that 5th Street located in the City of Huntsville, Alabama, crossed the railroad tracks owned and operated by these Defendants.” It is alleged that the City of Huntsville failed “to remedy some defect in the streets, alleys or public ways of the City of Huntsville after the same had been called to the attention of the Council” or “had existed for such unreasonable length of time as to raise a presumption of knowledge” of the defect. Although the complaint does not specify the exact nature of this defect, it appears, from the complaint and affidavits filed by the plaintiffs, that the accident occurred because 5th Street appeared to cross the railroad tracks when, in fact, it did not do so. Plaintiffs ran off the road and onto the railroad tracks and were injured.

After suit was brought, plaintiffs took pro tanto releases from the two railroads for $3,000 each, dismissing them as defendants over the city’s objection.

The sole assignment of error is whether or not the trial court was correct in granting summary judgment for the city.

The defendant city’s contention in the trial court, and here, is that all those jointly liable with the municipality are required to be joined in the action and that, when the railroads were dismissed, summary judgment was proper, citing Tit. 37, § 502 and § 503, Code- of Alabama 1940. I agree.

The plaintiffs’ position is that the join-der requirement of Tit. 37, § 503 is limited to cases resulting from the initial wrongful act of third parties and the city’s liability arises out of a negligent failure to remedy the defect. It is contended by plaintiffs that, neither in the complaint nor in the papers supporting summary judgment, do they state that the city’s liability arises by means of a wrongful act or acts by defendant railroads. Thus, plaintiffs argue that the action may stand against the city notwithstanding the railroads were dismissed as defendants, and therefore summary judgment was erroneously granted.

I cannot agree with the plaintiffs’ position. The complaint clearly charges that the railroads were negligent in failing to properly maintain their tracks and in negligently permitting the situation to exist so that it appeared that 5th Street crossed the railroad tracks. The city is charged with failing to remedy this defect. These charges, as well as plaintiffs’ affidavits, clearly show that this action falls within the second classification of Tit. 37, § 502 — when the wrong charged against the city is its failure to remedy defects after actual notice or constructive knowledge. The next section requires that the other parties likewise liable be joined and that “no judgment shall he rendered against the city or' town, unless judgment is rendered against such other person or corporation so liable for such injury. . . .” Tit. 37, § 503.

[Emphasis supplied.]

In City of Bessemer v. Brantley, 258 Ala. 675, 65 So.2d 160 (1953), this Court held, inter alia:

. . The applicable provision of Section 503 is to the effect that, if an action be brought against a city or town alone, and it is made to appear that any person or corporation ought to be joined as a defendant in the suit according to the provision of said Section 503, the plaintiff shall be nonsuited unless he amends by making such party or corporation a defendant, if a resident of the state, but no person shall be sued jointly with the city or town who would not be liable separately irrespective of this provision. Section 503, supra, also provides that the injured party, if he sues a municipality for damages suffered by him shall also join such other person, or persons, or corporation, so liable as defendant or defendants of the suit, and no judgment shall be rendered against the city or town unless judgment is rendered against such other person or corporation so liable for such injury, except where a summons is returned not found as to a defendant, or when judgment is rendered in his favor on some personal defense. . . . ”

In City of Birmingham v. Carle, 191 Ala. 539, 68 So. 22 (1915), this Court also held, with respect to this selfsame section in the Code of 1907, viz:

The manifest legislative purpose was to prevent the rendition of judgment against the municipality for culpable neglect in respect of a condition not initially created by it . . . unless the person or corporation, whose primary culpable act or omission give rise to and affords the essential basis for the municipal neglect to remedy the defect, as defined, is also adjudged liable, provided the liability of such person or corporation is not averted by some personal defense.” [Emphasis supplied.]

The reason for enactment of such a requirement seems clearly to be the legislature’s intention to settle the question of primary responsibility to the injured party in one suit where both the city and the alleged responsible other parties are made parties. City of Mobile v. George, 253 Ala. 591, 45 So.2d 778 (1950). The statute “provides for the compulsory joinder of the alleged active wrongdoer.” City of Mobile v. George, supra.

I have written solely to the issues raised on this appeal by the parties. No question as to the constitutionality of the Code sections in question nor of their constitutional application to this case was raised in the court below nor here. Therefore, I express no opinion thereon.

To denigrate any notion that this interpretation of §§ 502 and 503 constitutes a trap or pitfall for the unwary, it is suggested that, by a seasonal and proper amendment, the plaintiff could have maintained an action solely against the city as was done in Brantley, supra.

The legislature, by enacting these sections has clearly shown that it intended to provide (when action is brought under the second subdivision of § 502) that a plaintiff must join as defendant such other persons so liable so that if judgment of liability is fastened on such other person, the city will be relieved to the extent the other party is able to respond in damages. See Editor’s note to §§ 502 and 503, Tit. 37, Code 1940 [Recompiled Code 1958]. See also Carle, and Brantley, supra. Numerous other cases have contained like language.

These sections have constituted the law of Alabama for nearly seventy years. The legislature had the power to enact them, and it alone has the power to amend them.

“One of the fundamental principles of our political system is that a legislature possesses all power except as it is limited or restricted by the state or federal constitutions. Mangan v. State, 76 Ala. 60; State ex rel. French v. Stone, 224 Ala. 234, 139 So. 328; Hall v. Underwood, 258 Ala. 392, 63 So.2d 683; Opinion of the Justices, 263 Ala. 151, 81 So.2d 688; Young v. State, 283 Ala. 676, 220 So.2d 843.”

Johnston v. Alabama Public Service Commission, 287 Ala. 417, 252 So.2d 75 (1971).

It is thus that I would affirm the eminent trial judge who granted summary judgment.

MERRILL, FAULKNER, and EMBRY, JJ., concur in dissent.

      . “No city or town shall be liable for damages for injury done to or wrong suffered by any person or corporation, unless said injury or wrong was done or suffered through the neglect, carelessness, or unskillfulness of some agent, officer, or employe of the municipality engaged in work therefor; and while acting in the line of his duty, or unless the said injury or wrong was done or suffered through the neglect, carelessness, or failure to remedy some defect in the streets, alleys, public ways, or buildings after the same had been called to the attention of the council, or after the same had existed for such unreasonable length of time as to raise a presumption of knowledge of such defect on the part of the council, and whenever the city or town shall be made liable to an action for damages, by reason of the unauthorized or wrongful acts, or the negligence, carelessness, or unskillfulness of any person or corporation, then such person or corporation shall be liable to an action on the same account by the party so injured.”

      . “The injured party, if he sues the municipality for damages suffered by him, shall also join such other person or persons or corporation so liable as defendant or defendants of the suit, and no judgment shall be rendered against the city or town, unless judgment is rendered against such other person or corporation so liable for such injury, except where a summons is returned not found as to a defendant or when judgment is rendered in his favor on some personal defense, and if an action be brought against the city or town alone and it is made to appear that any person or corporation ought to be joined as a defendant in the suit according to the provisions in the preceding section, the plaintiff shall be nonsuited, unless he amends by making such party or corporation a defendant if a resident of the state, but no person shall be sued jointly with the city or town who would not be liable separately, irrespective of this provision. When a judgment shall be obtained against municipality and the other party liable as aforesaid, execution shall issue against the other defendant or defendants in the ordinary form, and shall not be de-mandable of the city or town unless the other defendants are insolvent, and the same cannot be made out of their property, and the city or town shall pay only so much of the said judgment as cannot be collected out of the other defendants. If the injured party shall, before bringing suit, demand of the mayor of such municipality the name of such other person or persons or corporation as may be liable jointly with the said municipality to such injured party, and if such mayor fail to furnish within ten days from the making of such demand, the name of such person or persons or corporation, so jointly liable, the said injured party shall not be required to join such other person as a party defendant with said municipality in any suit brought to recover damages for such injuries.”

      . The language of the original complaint was verified by reference to the original record of the Cooler case.

      . The language of the complaint is recorded the beginning of the report of the case in 207 Ala. at 431, 93 So. at 5.


author: FAULKNER, Justice.

text:
    ILLINOIS CENTRAL GULF RAILROAD CO., a corp., etc. v. Lillian Faye RICHARDSON, as Administratrix, etc.
    SC 1364.
    Supreme Court of Alabama.
    April 9, 1976.
    Sam W. Pipes, and Wesley Pipes, Mobile, for appellant.
    Joseph M. Matranga, Mobile, for appel-lee.
   FAULKNER, Justice.

The Railroad appeals from a jury verdict, judgment, denial of motion for judgment n. o. v., or in the alternative for a new trial, in a wrongful death action, assessing damages against it for $264,000. We reverse, and grant a new trial.

We address ourselves only to Assignment of Error No. 36. During his oral charge to the jury, the trial judge said:

“If someone is injured as a proximate result of the failure of the engineer to do the thing which the court has mentioned, or someone is injured by reason of any negligence on the part of the railroad employees, that is, the failure to do what an ordinarily prudent person would have done under the same or similar circumstances, then, the railroad company would be liable for damages, and when suit is brought for injuring someone, or for damages done to property at a public crossing, the burden of proof is upon the railroad company to show that it complied with the requirements of the law. And, that there was no negligence on the part of the railroad, or its employees.”

The Railroad objected upon the following ground:

“The court read to the jury Title 48, § 173, charge does not state that negligence on the part of the railroad would have to proximately contribute to the injuries or damages resulting in the death of the plaintiff.”

The trial judge did not read from Title 48, § 173, Code of Alabama, and said so. He said, “The court would state for the record that it did not read from the Code of Alabama.”

Nevertheless, we are of the opinion that charging a jury that “. . . the burden of proof is upon the railroad company to show that it complied with the requirements of the law. And, that there was no negligence on the part of the railroad, or its employees.” is reversible error. See Alabama Great Southern Railroad Co. v. Morrison, 281 Ala. 310, 202 So.2d 155 (1967).

Morrison dealt specifically with a trial judge’s reading § 173, Title 48, to the jury. We do not have that specific issue before us, yet the language of the charge is very similar. In our opinion the judge told the jury the burden was on the Railroad to acquit itself of negligence. The burden on the Railroad, after a prima facie case has been made out, is to rebut or overcome the prima facie case with its evidence. Louisville & Nashville R. Co. v. Green, 222 Ala. 557, 133 So. 294 (1931). In reviewing the evidence, we are of the opinion the Railroad rebutted the prima fa-cie case. Consequently, the latter part of the charge was an incorrect statement of the law, and an explanatory charge would not eliminate the error. Morrison, on rehearing.

We pretermit discussing the evidence (except to say it was conflicting) because of the possibility of another trial.

REVERSED AND REMANDED.

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


author: ALMON, Judge.

text:
    James E. PIERCE v. STATE.
    No. 6 Div. 205.
    Court of Criminal Appeals of Alabama.
    Oct. 29, 1974.
   AFTER REMANDMENT

ALMON, Judge.

This cause was remanded to the trial court for a jury determination of appellant’s mental capacity to stand trial. Upon remand a jury was empaneled and returned the following verdict: “We the jury find the defendant not to have been sane and competent to stand trial. Roderick A. Houston, Foreman.”

Tit. IS, § 426, Code of Alabama 1940, Recompiled 1958, provides:

“Inquisition in certain cases of felony; proceedings. — If any person charged with any felony be held in confinement under indictment, and the trial court shall have reasonable ground to doubt his sanity, the trial of such person for such offense shall be suspended until the jury shall inquire into the fact of such sanity, such jury to be impaneled from the regular jurors in attendance for the week or from a special venire, as the court may direct. If the jury shall find the accused sane at the time of their verdict, they shall make other inquiry, and the trial in chief shall proceed. If they find that he is insane at that time, the court shall make an order committing him to the Alabama state hospitals, where he must remain until he is restored to his right mind. When the superintendent of the hospitals shall be of opinion that such person is so restored he shall forthwith, in writing, inform the judge and sheriff of such court of the fact, whereupon such person must be remanded to prison on an order of such judge, and the criminal proceedings resumed. In no event shall such person be set at large so long as such prosecution is pending, or so long as he continues to be insane.”

The judgment is hereby vacated and the cause is remanded to the trial court to enter the necessary orders in accordance with § 426, supra, committing the appellant to the Alabama state hospitals.

Judgment vacated: Remanded with directions.

All the judges concur.


text:
    James B. DAVIS v. AETNA CASUALTY & SURETY CO. et al.
    No. 57857.
    Supreme Court of Louisiana.
    April 30, 1976.
   In re: Aetna Casualty & Surety Co. applying for certiorari, or writ of review, to the Court of Appeal, Second Circuit, Parish of Caddo, 329 So.2d 868.

Writ refused. No error of law.

DIXON, J., dissents from denial.


author: DIXON, J.,

text:
    SAHUQUE REALTY CO. v. EMPLOYERS COMMERCIAL UNION INSURANCE COMPANY OF AMERICA et al.
    No. 57846.
    Supreme Court of Louisiana.
    April 30, 1976.
   In re: New Orleans Public Service, Inc. and Wallace C. Drennan, Inc. applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Orleans, 327 So.2d 563.

Writ denied. The result is correct.

DIXON, J.,

CONCURS in the denial, and is of the opinion that contribution from the city is not available because its obligation in solido with NOPSI is imperfect, the city being only secondarily liable; therefore, although plaintiff might have recovered from both, those principally liable could not enforce contribution from the city. Indeed, if cast, the city would have a right of contribution or indemnity. C.C. 2106; Cline v. Crescent City Rr., 41 La. Ann. 1031, 6 So. 851; Bewley v. Maryland, La., 285 So.2d 216.


text:
    Mrs. Marietta Payne, wife of/and Warren PAYNE v. F. W. WOOLWORTH COMPANY and the Travelers Insurance Company.
    No. 57835.
    Supreme Court of Louisiana.
    April 30, 1976.
   In re: Mrs. Marietta Payne, wife of/and Warren Payne applying for cer-tiorari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Orleans.

Writ refused. On the facts found by the court of appeal, there is no error of law in its judgment.

DIXON, J., dissents from refusal and would grant.


text:
    STATE of Louisiana, DEPT. OF HIGHWAYS v. Willard H. KILPATRICK.
    No. 57855.
    Supreme Court of Louisiana.
    April 30, 1976.
   In re: Willard H. Kilpatrick applying for certiorari, or writ of review, to the Court of Appeal, Second Circuit, Parish of Jackson, 327 So.2d 452.

Application denied. On the facts found by the court of appeal, there is no error law.

DENNIS, J., is of the view that writ should be granted.


author: TATE, J.,

text:
    STATE of Louisiana ex rel. Joseph V. FOSTER Jr. v. WARDEN, LOUISIANA STATE PENITENTIARY, et al.
    No. 57841.
    Supreme Court of Louisiana.
    April 30, 1976.
   In re: Joseph V. Foster, Jr. applying for Writ of Certiorari and Habeas Corpus.

Writ denied. The relator is not entitled to relief sought.

TATE, J.,

concurs. The trial court’s uncontradicted reasons show a knowing abandonment of a right to appeal.


text:
    STATE of Louisiana v. Charles F. WALGAMOTTE.
    No. 57838.
    Supreme Court of Louisiana.
    April 30, 1976.
   In re: Charles F. Walgamotte, applying for writs of habeas corpus, certiorari, prohibition and mandamus.

Writ denied. Relator is not entitled to the relief sought.

DIXON, J.,

concurs in the denial, being of the opinio napplicant cannot receive a more serious sentence than that previously imposed.


text:
    STATE of Louisiana ex rel. William Ray KISSINGER v. WARDEN, LOUISIANA STATE PENITENTIARY.
    No. 57825.
    Supreme Court of Louisiana.
    April 30, 1976.
   In re: William Ray Kissinger applying for Writ of Habeas Corpus.

Writ refused. The ruling of the trial judge denying relief is correct.

TATE, J.,

concurs in denial of eviden-tiary hearing in view of the recorded colloquy at the time of the plea of guilty.


author: STOULIG, Judge. LEMMON, Judge

text:
    Effie CALECAS v. The GREAT ATLANTIC AND PACIFIC TEA COMPANY, INC., and Aetna Casualty and Surety Company.
    No. 7379.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 13, 1976.
    Frank E. Beeson, III, New Orleans, for plaintiff-appellee.
    Lemle, Kelleher, Kohlmeyer & Matthews, Paul B. Deal, New Orleans, for defendants-appellants.
    Before SAMUEL, LEMMON and STOULIG, JJ.
   STOULIG, Judge.

Plaintiff, Effie Calecas, was awarded a $15,049.13 judgment against The Great Atlantic and Pacific Tea Company, Inc. (A & P), and its liability insurer, Aetna Casualty and Surety Company, for injuries she sustained in a slip-and-fall accident in defendant supermarket on Saturday, December 23, 1972. Defendants have appealed.

The record reveals that plaintiff, accompanied by her neighbor Mrs. Campo (now deceased), entered the A & P in the Robert E. Lee Shopping Center in the City of New Orleans to purchase a few items. The ladies shared one shopping basket and proceeded down the aisle where fruit and produce are displayed. Mrs. Campo walked ahead while Mrs. Calecas selected a green pepper. Plaintiff rejoined her neighbor in the rear of the store at the end of the produce aisle where they met other acquaintances and talked for a few minutes. During the course of this conversation plaintiff noticed a bad spot on her pepper and started back toward the produce section to exchange it. The store was very crowded that Saturday afternoon before Christmas, and plaintiff stated she was “working her way through people” toward the pepper bin when the accident occurred. As she looked for the pepper section and threaded her way through the shoppers, at a point 10 feet from her destination in the center of the aisle, she stepped on one or several bunches of shallots on the floor, causing her to slip and fall. From her testimony it is obvious why she did not see the shallots as she approached them. It is equally apparent that the first time she walked along the produce counters she did not see the shallots located in the center of the aisle because she was facing away from them and her attention was directed toward the displayed merchandise.

How long the shallots had been on the floor or who dropped them there is not established. Mrs. Ida Roberts testified she saw them at least 20 to 40 minutes before the accident in a mashed condition. She observed them because another shopper’s car collided with hers right at the point where the shallots lay on the floor, and she stopped momentarily to accept the lady’s apology. Mrs. Roberts had almost completed her shopping but returned to the produce aisle to pick up mayonnaise which she had forgotten. She arrived just as the plaintiff was being lifted from the floor after her fall.

Defendants suggest Mrs. Roberts lacks credibility because, in addition to being a friend and former neighbor of plaintiff, she lived in Kenner, Louisiana, many miles from this particular store when the accident occurred. The inference is it is highly unlikely Mrs. Roberts would be shopping in that area. When questioned on this point, she testified that she had been in the neighborhood visiting friends and decided to stop at this A & P on her way home.

The trial judge, in written reasons, stated his conclusion on credibility was favorable to the plaintiff and there is nothing in the record to indicate otherwise. Thus we conclude plaintiff proved she slipped on a foreign substance while shopping in defendant’s store; that the shallots were not dropped by the plaintiff; that they had been on the floor at least 20 minutes and probably longer; and that plaintiff’s failure to see them under the crowded conditions existing in the store on that Saturday before Christmas did not constitute negligence or contributory negligence.

At this point it is appropriate to discuss burden of proof. In slip-and-fall cases the burden of proof in onerous and, as a general observation, the litigant upon whom the burden ultimately rests, loses. The evidentiary problem in these cases was analyzed in Gonzales v. Winn-Dixie Louisiana., Inc., 326 So.2d 486 (La.1976). The Court held that once the plaintiff proves he or she slipped on a foreign substance in a store that was not there due to his or her fault, then the store owner must assume the burden of exculpating itself from negligence. We quote from this clear and concise opinion:

“The duty of a store owner to protect his customers from foreign substances on the floor is one of reasonable care under the circumstances. Reasonable protective measures, including periodic inspections, must be taken to keep the aisles and floors free of substances or objects that may cause customers to fall. Kavlich v. Kramer, La., 315 So.2d 282 (1975); Tripkovich v. Winn-Dixie of Louisiana, Inc., La.App., 284 So.2d 80 (1973); Fontanille v. Winn-Dixie Louisiana, Inc., La.App. 260 So.2d 71 (1972), cert. denied, 261 La. 1064, 262 So.2d 44 (1972); Prosser, Law of Torts, § 61, pp. 392-393 (4th ed. 1971). The circumstances that determine the reasonableness of protective measures include the type and volume of merchandise, the type of display, the floor space utilized for customer service, the nature of customer service, and the volume of business. As we recently noted the self-service grocery system requires customers to focus their attention on the shelves and to handle merchandise. The system increases the risk of harm from objects dropped on the floor by customers and, correspondingly, the duty to minimize the risk by frequent inspections and cleanups. See Kavlich v. Kramer, supra; Prosser, Law of Torts, § 56 p. 349 (4th ed. 1971).
“In the instant case, plaintiffs established that there was a spill of olive oil about two feet in diameter in the aisle where Mrs. Gonzales was shopping; that the oil came from a broken bottle near the olive oil shelf; that she did not see the oil spill; that she stepped into the olive oil; and that it caused her to slip, fall, and be injured.
“Upon proof of such facts, we recently held in Kavlich v. Kramer, supra, that the duty of going forward with the evidence to exculpate the store employees from negligence shifts to the store owner. When it appears that a third person dropped the foreign substance, the store owner must establish that periodic inspections made and other protective measures taken were reasonable. Implicit in the decision is a recognition that, in the self-service system, customers are prone to drop objects on the floor and that a customer who slips and falls on such an object is usually in no position to establish how long it has been on the floor.” 326 So.2d at 488.

In the light of this reasoning, we turn to the evidence presented by defendants. They established the floor is mopped and buffed by a night crew after the store has closed; the produce section is stocked in the morning, swept and wet spots mopped, if any, so that the area is clean when the doors open for business at 8 a. m.; there is a manager and an assistant in the produce department, however, there is no regular schedule for inspecting and/or cleaning the floor during the daytime business hours; the employees are all instructed to watch for objects on the floor, to pick them up and to clean the area immediately; the store manager, A. L. Crochet, as a general rule, patrols the store every hour in addition to his other responsibilities of managing the supermarket operations.

The testimony of Crochet and James Kelly, produce manager, failed to establish what maintenance and cleaning was done on the day of the accident or whether Crochet was able to make his routine inspection on that specific busy day. Kelly’s testimony indicates he was informed of the plaintiff’s fall on the date it happened, but Crochet said he knew nothing until plaintiff called him a week later to ask about medical treatment which conflicts with Mrs. Calecas’ testimony that she reported her fall to him on the day it occurred before leaving the premises. The assistant produce manager, Lucien Lidet, was aware of the accident and apparently assisted plaintiff and had something to do with cleanup immediately after. Yet he was not called to testify and his absence was not explained, although he seemed to have more specific information than either Crochet or Kelly.

Defendant has failed to establish that it met the duty to protect its customers from the hazard of foreign matter on the floor of its self-service store by maintaining a reasonable and adequate inspection and cleaning program commensurate with the existing conditions and circumstances. The only significant evidence offered by defendants was that the floor was clean when the store opened. On an unusually hectic and busy day, such as the Saturday before Christmas, it would seem the store owner would be required to exercise a greater degree of care in keeping the aisles in a safe condition. Further, their failure to call Lidet to testify or to explain this omission creates a presumption his testimony would be adverse. Accordingly we affirm on liability on a finding defendants failed to carry the burden of exculpating themselves from negligence by proving they had an adequate cleaning and maintenance program in effect that day.

We next consider and dismiss appellants’ complaint the quantum is excessive. The trial court awarded $14,000 general damages and $1,049.13 in specials. We note plaintiff sought medical help from defendant insurer as soon as it became apparent the initial pain from the fall did not subside. She was told by the adjuster that it would be a day or two before he could arrange an appointment for her and that if she required immediate attention to consult her family doctor. This she did by contacting Dr. Arthur Bohmfalk on the same day.

Dr. Bohmfalk diagnosed her condition as a severe “sprain and strain of the lower back and thigh (left) as well as a contusion of left buttocks & strain of anterior chest muscles.” His prognosis two years after the accident included this observation, “I am afraid this leg pain will keep recurring.”

Dr. R. F. Kitziger, an orthopedist, treated her between February 1973 and February 1974 for the major problem of a “chronic trochanteric bursitis * * * probably troublesome but not markedly disabling.” When he discharged her in 1974, he indicated he was hopeful the symptoms would gradually abate.

Mrs. Calecas had no back or muscle problems prior to the slip-and-fall incident. Considering the duration of pain, we think the award is reasonable.

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

AFFIRMED.

LEMMON, J., concurs with written reasons.

LEMMON, Judge

(concurring).

Direct testimony, found credible by the trial court, established that the shallots were on the floor of the busy produce section for about 40 minutes. This evidence alone established the storekeeper was negligent in failing to discover and correct the hazardous condition which existed that long. It is therefore unnecessary in this case to weigh and analyze the adequacy of inspection procedures and other circumstantial evidence introduced to establish how long the hazardous condition existed.

      . Horton v. Seligman and Latz, Inc., 260 So.2d 731 (La.App. 4th Cir. 1972).


author: GULOTTA, Judge.

text:
    BUD FINANCE COMPANY, INC. v. Joe GILARDI.
    No. 7323.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 16, 1976.

      Irwin R. Sanders, New Orleans, for plaintiff-appellant.
    Gordon K. Konrad, Gretna, for defendant-appellee.
    Before LEMMON, GULOTTA and STOULIG, JJ.
   GULOTTA, Judge.

This is a suit for the balance due in the sum of $1,615.00 on a promissory note, together with 8% interest from June 18, 1975 until paid, attorney’s fees and costs. Defendant, in his answer, admitted executing a promissory note in the sum of $1,-920.00 on June 18, 1973, but alleged that he was not furnished with proper information required by the “Truth in Lending Act” and was, therefore, entitled to penalties and attorney’s fees provided by that Federal statute for violation of its provisions.

The trial court rendered judgment in favor of plaintiff in the sum of $1,600.00, together with interest at the rate of 8% on the amount owed from April 29, 1974 until paid, together with 25% attorney’s fees and costs. However, concluding that plaintiff failed to comply with the disclosure provisions of 15 U.S.C.A. § 1605(c), the trial judge awarded defendant a credit of $1,000.00 as a penalty, together with $250.00 in attorney’s fees, in accordance with 15 U.S.C.A. § 1640(a)(1). According to the trial judge, no evidence was offered that any statement in writing was furnished by plaintiff to defendant which set forth the property insurance charge or contained a statement that defendant is advised of his right to obtain insurance from any other person or source of his own choosing as required in the “Truth in Lending Act”. Plaintiff appeals.

In seeking to set aside the penalties and attorney’s fees awarded, plaintiff contends, on appeal, that the statement furnished to defendant and acknowledged by defendant’s signature satisfied the requirements of 15 U.S.C.A. § 1605(c). We agree.

15 U.S.C.A. § 1605(c) states:
“Property damage and liability insurance premiums included in finance charge
“(c) Charges or premiums for insurance, written in connection with any consumer credit transaction, against loss of or damage to property or against liability arising out of the ownership or use of property, shall be included in the finance charge unless a clear and specific statement in writing is furnished by the creditor to the person to whom the credit is extended, setting forth the cost of the insurance if obtained from or through the creditor, and stating that the person to whom the credit is extended may choose the person through which the insurance is to be obtained.”

The disclosure statement, a printed form furnished by plaintiff, included the following statement:

“PROPERTY INSURANCE, if written in connection with this transaction, extends to June 18, 1974. The cost is shown in Item 10 and customer is hereby advised of his right to obtain this insurance from any other person or source.”

The property insurance cost was revealed in Item 10 of the disclosure statement.

The final paragraph of the disclosure form stated:

“I ACKNOWLEDGE RECEIPT OF THIS STATEMENT and I further understand that the disclosures herein are made solely for the purpose of compliance by the creditor with the Federal Truth in Lending Act and regulations issued thereunder. In addition, I acknowledge that these disclosures may be inconsistent with other disclosures required by state law in the contract or agreement to which these disclosures apply, and I agree that disclosures relating to the FINANCE CHARGE and the ANNUAL PERCENTAGE RATE are in no way to be considered as part of the agreement or contract identified herein.”

Below this statement is what appears to be the signature of Joseph Gilardi. Throughout his testimony, defendant vacillated as to whether or not he executed various documents introduced into evidence. A review of the testimony and pleadings indicates that defendant never seriously contended the signature on the disclosure form was a forgery. In addition, our comparison of the other exhibits, introduced into evidence and admittedly signed by the plaintiff, with the signature on the disclosure form reveals the signatures to be markedly similar.

We conclude that defendant did sign the disclosure form. Our jurisprudence is well established that one who signs a written instrument is presumed to know its contents. One cannot avoid an obligation merely by contending that he had not read it, or that it was not read and explained to him, or that he did not understand its provisions. Ideal Loan of New Orleans, Inc. v. Johnson, 218 So.2d 634 (La.App. 4th Cir. 1969); Jayco Sales and Service, Inc. v. Smith, 303 So.2d 554 (La.App. 1st Cir. 1974). Therefore, plaintiff is presumed to have been aware of the property insurance charge shown in Item 10 of the disclosure statement and of his right to obtain this insurance from any other person or source, if he so desired.

Under the circumstances, we conclude the disclosure statement furnished by the plaintiff complied with the provisions of 15 U.S.C.A. § 1605(c), and that the trial judge erroneously awarded defendant a set-off in the amount of $1,000.00 in penalties and $250.00 in attorney’s fees under 15 U.S.C.A. § 1640(a).

Accordingly, that part of the judgment allowing defendant a credit of $1,000.00 in penalties and $250.00 in attorney’s fees is annulled, rescinded and set aside. In all other respects, the judgment is affirmed. As amended, affirmed.

AMENDED AND AFFIRMED

APPENDIX 1.

      . An undisputed rebate of unearned discount in the sum of $187.95 was awarded to the defendant.

      . The promissory note was secured by a chattel mortgage on a 1969 Cadillac automobile.

      . See Appendix 1. for a copy of the credit disclosure statement.


author: MORIAL, Judge. REDMANN, Judge

text:
    LAGNIAPPE OF NEW ORLEANS, LTD. v. Herbert DENMARK and Elma Denmark d/b/a Courtyard Curio Shoppe and Courtyard Curio Shoppe, Inc.
    No. 7389.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 13, 1976.
    Favret, Favret & Demarest, J. Paul De-marest, New Orleans, for plaintiff-appel-lee.
    Foti, Hartley & Pettingill, Leroy A. Hartley, New Orleans, for defendants-appellants.
    Before REDMANN, MORIAL and BEER, JJ.
   MORIAL, Judge.

Defendants, Herbert Denmark and Elma Denmark d/b/a Courtyard Curio Shoppe and Courtyard Curio Shoppe, Inc., appeal from a judgment holding them personally liable for the sum of $271.57 due on open account to plaintiff, Lagnaippe of New Orleans, Ltd.

The single issue now before us is whether the trial court erred in holding the Den-marks, rather than the now defunct Courtyard Curio Shoppe, Inc., liable for the unpaid obligation.

An examination of the record reveals that Mr. and Mrs. Denmark operated the Courtyard Curio Shoppe for several years as a proprietorship until they incorporated it on March 20, 1974. In June of 1974 Sandra Broussard, plaintiff’s representative and part owner, called on the shop in order to sell some merchandise. She spoke with Mrs. Denmark who thereafter placed an order. Mrs. Broussard testified that for all subsequent orders, up to and including the final order placed on November 5, 1974, she dealt solely with Mrs. Denmark and that she assumed Mrs. Denmark owned the business.

Plaintiff contends that at no time throughout the business relationship with Courtyard Curio Shoppe was it, or its representative, ever made aware of the store’s corporate status. In support of this claim, plaintiff cites documents showing that all invoices to defendants bore only the name “Courtyard Curio Shoppe.” Further, plaintiff notes Mr. Denmark’s testimony that he had not changed the sign outside of the business after the incorporation and that until the time the business closed the sign read “Courtyard Curio Shoppe.”

The jurisprudence of this state is clear to the effect that if an agent acting on behalf of a corporation wishes to avoid personal liability, he must disclose his status as agent and identify his principal. Olympic Electric Service, Inc. v. Craig, 286 So.2d 182 (La.App. 4 Cir. 1973); Transport Refrigeration of La., Inc. v. D’Antoni, 281 So.2d 469 (La.App. 4 Cir. 1973). It is also well established that the one asserting the agency relationship bears the burden of proving disclosure. Chartres Corporation v. Twilback, 305 So.2d 730 (La.App. 4 Cir. 1974).

Defendants assert that plaintiff was or should have been aware of the corporate status due to its receipt of a check dated October 28, 1974 bearing the word “Inc.” after the name Courtyard Curio Shoppe. We consider this to be of little significance in light of the fact that this was the first payment ever received from defendants and that it was dated only seven days before plaintiff’s final business transaction with defendants. Furthermore, it has been held that mere acceptance of a corporate check is not sufficient to put one on notice that he is dealing with a corporation rather than with an individual. Jahncke Service v. Heaslip, 76 So.2d 463 (La.App.Orl. 1954).

From our consideration of the facts before us, we conclude that it was reasonable for plaintiff to believe that it was transacting business with an unincorporated entity. Defendants made no attempt to disclose their corporate status and thus have clearly failed to sustain their burden of proof. Accordingly, the trial court did not err in holding the Denmarks personally liable.

The judgment of the trial court is affirmed. Defendants are to pay all costs.

AFFIRMED.

REDMANN, J., dissents.

REDMANN, Judge

(dissenting).

First, Herbert Denmark ordered nothing from plaintiff. Plaintiff’s saleslady so testified. He cannot be liable on any theory that he ordered without disclosing that he acted for a corporation.

Second, Elma Denmark is not liable because plaintiff’s saleslady sold, extended credit, and billed to “Courtyard Curio Shoppe”. The saleslady knew that she was not selling to Elma Denmark. At all. times of sales by plaintiff to Courtyard Curio Shoppe, it was operated by a corporation.


author: STOULIG, Judge.

text:
    Gary L. HOLLEMAN v. Theodore P. VIOLA, Jr., et al.
    No. 7369.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 13, 1976.

      Law Office of Richards & Dorsey, Dan R. Dorsey, Metairie, for plaintiff-appellee.
    Law Offices of James J. Morse, Julian G. Baudier, Jr., New Orleans, for defendants-appellants.
    Before SAMUEL, LEMMON and STOULIG, JJ.
   STOULIG, Judge.

Plaintiff, Gary L. Holleman, obtained a $219.45 judgment against defendants, Theodore P. Viola, Jr., a police officer; the New Orleans Police Department; and its insurer, the Travelers Insurance Company, for the car rental expense Holleman incurred while his vehicle was being repaired.

On December 12, 1974, Officer Viola, while operating a New Orleans Police Department station wagon in the course of his employment, struck Hollemán’s parked vehicle. That same day Holleman had his car towed to Clearview Dodge to be repaired. The insurer, conceding liability, paid the property damage claim and reimbursed plaintiff for car rental expense for 14 days; however, it refused to pay for the additional 22 days of car rental expense plaintiff incurred while waiting for his vehicle to be repaired by Clearview. Defendants have appealed from the judgment in favor of plaintiff.

We affirm. The record establishes plaintiff did all that could reasonably be expected to have his vehicle repaired promptly and to minimize the damages with respect to car rental. On the date of the accident he arranged to have his Dodge automobile towed to an authorized Dodge dealer.

According to Johnny E. Beeson, body shop manager of Clearview Dodge, before repairs could be undertaken at the insurer’s- expense, its appraiser would have to inspect the damage and approve the estimate given at the repair shop. Upon receipt of the insurer’s approval of the repairs, the required parts were ordered and the actual repairs commenced.

In this case on December 16 the defendant’s appraiser partially inspected the car. He was unable to complete his estimate on this date because Clearview Dodge did not have anyone to jack up the car so that he could view any damage to its undercarriage. Sometime between December 20 and 23 the appraiser examined the undercarriage and completed his estimate of repair, which was submitted to his supervis- or.

On Christmas Eve, plaintiff checked with Clearview and learned the body shop was closed for the holidays from January 20, 1974 to January 2, 1975. He was also advised that the repairs to his car had not been started because they had not been approved by the insurer. Several days later the insurer, who had furnished a rental car, refused to continue to do so because its appraiser felt the delay in effecting the repairs was unreasonable. Plaintiff then returned the rental car on December 31. Having no business need for the use of a car over the New Year’s weekend, plaintiff did not rent another automobile at his own expense until three days later.

From the record it is obvious the dispute is between the insurer and Clearview Dodge, and it is not clear whether the adjuster was dilatory in completing the inspection or the automobile dealer procrastinated in making the repairs. The insurer complains of the Christmas close-down, but we do not think it was the plaintiff’s obligation to know of this holiday delay or to move his car to another body shop once he learned of it. Plaintiff pointed out the impracticality of moving the vehicle when he noted: The repair estimates had been approved and the parts ordered to complete the job. Had he moved the car to another body shop it would have been necessary to reappraise the repair job and obtain approval before the new shop could order parts. This would have caused additional delay.

The period of compensatory loss of use is the time required to have the damaged property repaired when due diligence is exerted. See Chriss v. Manchester Insurance & Indemnity Co., 308 So.2d 803 (La.App.4th Cir. 1975). In the instant case the evidence establishes the plaintiff did all that could be reasonably expected to complete the repairs as expeditiously as possible.

Appellants’ second complaint of error is that the trial judge awarded $75 to Johnny Beeson, who was qualified as an expert in repair of vehicles but testified only to facts that required no particular expertise. We agree an expert fee is not due, but note none was assessed in the judgment. The trial judge did indicate he intended to make such an award, but the judgment is silent as to this element of cost. Therefore, in this respect there is nothing to amend.

For the reasons assigned the judgment appealed from is affirmed at defendants’ cost.

AFFIRMED.


author: LEMMON, Judge.

text:
    Eugene BROWN v. ESTATE of Harry KATZ and Gulf Insurance Company.
    No. 7357.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 13, 1976.

      Porteous, Toledano, Hainkel & Johnson, James L. Donovan, New Orleans, for defendants-appellants.
    Fine & Waltzer, Bruce C. Waltzer, New Orleans, for plaintiff-appellee.
    Before SAMUEL, ° LEMMON and STOULIG, JJ.
   LEMMON, Judge.

The sole issue in this appeal is the amount of general damages awarded to plaintiff for injuries to his wrist and hand sustained in a July 22,1972 accident.

A comminuted fracture of the distal end of the radius was manipulated at the hospital under local anesthesia and immobilized in a cast. The treating orthopedic surgeon also diagnosed a fracture of the radial styloid process and a fracture of the neck (knuckle) of the second metacarpal. His prognosis was guarded because the fracture of the radius extended into the wrist joint.

After the cast was removed on August 29, plaintiff was placed on a program of exercises and soon regained a complete range of motion in the shoulder and elbow. However, limitation of motion continued in the wrist and knuckle joints, and considerable atrophy of the muscles of the arm and forearm remained.

A November examination revealed that the fractures of knuckle and radius had healed, although the latter showed some displacement. The styloid process fracture had not healed, and there was still considerable limitation of wrist motion, although no swelling.

In February, 1973 limitation had lessened, but the doctor still measured a difference of 11/2 inches in the circumference of the injured arm as compared to the other. The doctor assigned a 10% permanent disability of the entire right upper extremity.

On the day before the June 5, 1974 trial, wrist movement was almost normal, except that plaintiff could not place his wrist in a full palmer flexed position. The right handed plaintiff, however, still complained of weakness, and the doctor attributed this to muscle shrinkage, opining that the expected degree of improvement in atrophy had not occurred and that plaintiff may always have some atrophy and attendant weakness.

At the time of the accident the 20-year old plaintiff was working as a sheetrock hanger. After six weeks of incapacity, he returned to employment at various unskilled jobs, but stated he had difficulty with work that required wrist strength, such as nailing sheetrock or fleeting barges. At trial he complained of constant stiffness, as well as occasional joint pain.

The doctor verified that muscle shrinkage can cause weakness and that the unhealed fracture can be a factor substantiating the complaints of joint pain. While the doctor did not impose restrictions on plaintiff’s work activities, he noted that the residual problems were self-limiting to the extent that plaintiff would have to determine his own work capability.

The trial judge awarded $12,000.00 in general damages, in addition to medical expenses of $122.00 (which should have been $275.12). While we have affirmed significantly lower awards for similar injuries in the cases cited by defendants, the question is whether the trial court’s award in this case can be reasonably supported by the record. Bitoun v. Landry, La., 302 So.2d 278 (1974). We cannot say on this record that the trial judge abused the much discretion vested in him by C.C. art. 1934(3).

The judgment is affirmed.

AFFIRMED.


author: SCHOTT, Judge.

text:
    DeFELICE LAND CORPORATION v. CITRUS LANDS OF LOUISIANA, INC.
    No. 7377.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 13, 1976.
    Lemle, Kelleher, Kohlmeyer & Matthews, Vance E. Ellefson and William S. Penick, New Orleans, for plaintiff-appellant.
    Porteous, Toledano, Hainkel & Johnson, William W. Miles, New Orleans, for defendant-appellee.
    Before GULOTTA and SCHOTT, JJ., and P. C. ST. AMANT, Assigned Judge.
   SCHOTT, Judge.

Plaintiff, alleging that it had no means of ingress or egress to its land, which was surrounded by defendant’s land, brought this suit for designation of a servitude of passage across defendant’s land, pursuant to LSA-C.C. Art. 699 and, alternatively, for maintenance and recognition of a conventional servitude across defendant’s property acquired by plaintiff’s ancestor in title. Defendant admitted that plaintiff was entitled to a servitude of passage, and the only issue became the proper location of the right-of-way.

The titles of both pieces of property were once held by a common ancestor in title who included in the act of sale to plaintiff’s ancestor the following:

“ . . . anything in this act of sale to the contrary notwithstanding the vendee, his heirs and assigns, shall have ingress and egress to the herein conveyed property over and across the full depth of the said conveyed property in front of the forty arpent line.”

For many years this right of passage was exercised by plaintiff and its ancestors in title over a shell road running across a piece of defendant’s property. This road commenced at a bridge over a drainage canal into plaintiff’s property on the southwest and Louisiana Highway 23 on the northeast end of this road. At some point in time after defendant purchased the property to the northeast of plaintiff’s, a gate was installed on the southwest side of the road, preventing plaintiff from using it for access to and egress from its property. This is the location which plaintiff championed at the trial of the case for the exercise of the servitude.

Defendant championed another location some distance southeast of the first location which would connect plaintiff’s property to Lake Hermitage Road at a point some distance from its intersection with Highway 23.

The evidence shows that the distance between plaintiff’s land and Highway 23, at the original location designated as point A, would be 580 feet, while the distance between plaintiff’s land and the Lake Hermitage Road, designated as point B, would be 529.84 feet. In either case plaintiff would be required to construct a bridge across the canal dividing its property from defendant’s. However, Highway 23 is paved with black-top while Lake Hermitage Road is a shell surfaced road. If the right-of-way were located at point B its use would entail traveling along Lake Hemitage Road for about two miles before reaching Highway 23. Thus, the evidence shows that the location of the servitude at point B would be least injurious to defendant, while location at point B would not be equally convenient to plaintiff as would be location at point A. There is a dispute as to whether the Lake Hermitage Road is a public road or not, with the trial judge finding that it was formerly a private road but was now a public road, made public by use and maintained by the Parish of Plaquemines. While there is no evidence in the record to support this finding, for our purposes here, we will assume that Lake Hermitage Road is a public road in the implementation of the Civil Code articles governing the rights of the parties.

The trial judge decided the case in favor of defendant on the basis of LSA-C.C. Art. 700, which provides as follows:

“The owner of the estate, which is surrounded by other lands, has no right to exact the right of passage from which of his neighbors he chooses.
“The passage shall be generally taken on the side where, the distance is the shortest from the inclosed estate to the public road.
“Nevertheless, it shall be fixed in the place the least injurious to the person on whose estate the passage is granted.”

Plaintiff contends that C.C. Art. 777 governs the situation:

“The owner of the estate which owes the servitude can do nothing tending to diminish its use, or to make it more inconvenient.
“Thus he can not change the condition of the premises, nor transfer the exercise of the servitude to a place different from that on which it was assigned in the first instance.
“Yet if this primative assignment has become more burdensome to the owner of the estate which owes the servitude, or if he is thereby prevented from making advantageous repairs on his estate, he may offer the owner of the other estate a place equally convenient for the exercise of his rights, and the owner of the estate to which the servitude is due can not refuse it.”

The nub of the controversy is whether the servitude was already established at point A, in which case plaintiff is entitled to maintenance and recognition of the servitude at that point since point B is not “a place equally convenient” as required by Art. 777, or the location has not been established so that defendant is entitled to fix the servitude at point B, which from its point of view is “the place least injurious” as provided by Art. 700.

The servitude of passage being a discontinuous servitude, Art. 727, can be established only by title and cannot be acquired by possession itself. Art. 766.

The problem here is that plaintiff’s general right of ingress and egress equivalent to a servitude of passage was established by title but the location was not. Plaintiff relies upon the following articles of the Civil Code to support its position that it did acquire the servitude at point A:

“Art. 779. If the manner in which the servitude is to be used is uncertain, as if the place necessary for the exercise of the right of passage is not designated in the title, the owner of the estate which owes the servitude is bound to fix the place where he wishes it to be exercised.” (emphasis supplied)
“Art. 780. If the title by which a passage is granted does not designate its breadth, nor the manner in which it is to be used, whether on foot, or horseback, or with carriages, the use which the person to whom the servitude is granted previously made of it will serve to interpret the title.
“If there was no such use made of it before, the probable intention of the parties must be considered, and the purpose for which the passage is granted.
“If these circumstances can afford no light, it must be decided in favor of the land which owes the servitude, and a foot passage must be conceded eight feet wide, where it is straight, and ten feet wide where, it turns.” (emphasis supplied)

As can be seen, where the title does not designate “the manner in which [the servitude] is to be used” the use previously made of it will serve to interpret the title. The words “manner in which it is to be used” in Art. 780 must include the meaning which is given to the same words in Art. 779, i. e., “the place necessary for the exercise of the right of passage.” We find nothing to suggest that these words do not have the same meaning in both articles. Furthermore, the jurisprudence indicates that the place for the exercise of the servitude is to be determined by the use previously made of it.

In Burgas v. Stoutz, 174 La. 586, 141 So. 67, plaintiff was awarded an injunction against defendant from closing off a right of passage from plaintiff’s property across defendant’s where plaintiff’s title included “the privilege of using the paved driveway in the rear of the property hereinabove described, which paved driveway is part of Lot ‘B’ belonging to the vendors . . Defendant attacked the title on the ground that it was insufficient in that it did not state the length or the width of same. The Court said:

“This particular ground of attack is without merit, since the paved runways are located as physical objects on the surface of lot ‘B,’ the property of defendant, as shown by photographs filed in evidence, and the length and width of same are easily ascertainable. That which can be made certain is considered in law as certain.”

In J. C. Trahan, Drilling Contractor, Inc. v. Younger, 169 So.2d 15 (La.App. 2nd Cir. 1964) plaintiff’s right-of-way grants were attacked on the grounds that they did not sufficiently describe the servitude as to its width, length and points of traverse. The instruments conferred upon the grantee “the right-of-way to lay, maintain and operate a pipeline over, under, across and through the following described property . . .” There followed a description of the property to be burdened with the servitude. Prior to the institution of the suit plaintiff had constructed and operated the subject pipeline through the property. The court applied the reasoning of Burgas v. Stouts, recognizing the distinction in that case stemming from the fact that there was a descriptive platt annexed to the deed granting the right-of-way, but held:

“. . . Regardless of the failure to describe the exact location of the servitude at the time of the grants this failure was remedied by the construction of the pipeline. It follows that that which was uncertain has been made certain.”

We conclude that plaintiff is entitled to have his servitude at point A recognized and maintained.

Accordingly, the judgment appealed from is amended to delete the description of the right-of-way at point B and to substitute therefor a description at point A. Because the judgment of the trial court incorporated a legal description based upon an engineering survey dated April 9, 1975, which described in detail the dimensions and location of the right-of-way at point B, and since no comparable description and survey are available to us for a description of the servitude at point A, the case must be remanded to the District Court in order to incorporate into a final judgment a proper description of the right-of-way at point A. In all other respects the judgment of the trial court is affirmed. Defendant is to pay the costs of this appeal.

AMENDED AND REMANDED.


text:
    Silverio MARTINEZ v. EQUITABLE EQUIPMENT COMPANY and Fidelity & Casualty Company of New York.
    No. 7471.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 13, 1976.

      Charles M. Stevenson, Metairie, for plaintiff-appellee.
    Normann & Normann, Charles E. Leche, New Orleans, for defendants-appellants.
    Before SAMUEL, LEMMON and STOULIG, JJ.
   STOULIG, Judge.

Plaintiff, Silverio Martinez, obtained a judgment awarding him workmen’s compensation benefits of $49 per week for a period not to exceed 500 weeks plus medical expenses, on a finding he suffered a disabling back injury sustained in the course and scope of his employment as a grinder. Defendants, Equitable Equipment Company, his employer, and its insurer, Fidelity & Casualty Company of New York, have appealed. We affirm.

Defendants concede plaintiff was injured on the job on July 31, 1972. His work entailed grinding rough edges of welded metal to soften them. He used machinery weighing approximately 10 pounds that was connected to an air supply by hoses. He was injured when a hose became disconnected as he was pulling against it in the course of setting up his equipment. He fell backward and struck his back.

That same day, plaintiff, on his employer’s referral, consulted Dr. J. Terry Se-gura, who treated him for his back condition until November 20, 1972. His medical report, admitted in evidence in lieu of his testimony, only confuses the picture because his factual history is inaccurate, his diagnosis of “acute cervical strain” is questionable because the complaints of pain refer to the low back area, and he repeatedly suggests plaintiff return to work without discharging him. Undoubtedly some of the confusion is due to the fact that Martinez’s native tongue is Spanish and he is not articulate in English conversation.

In written reasons for judgment, the trial judge noted factual discrepancies in the report. To illustrate, it recites plaintiff reinjured himself in October 1972 while changing a tire, when in fact, a minister acquainted with the Martinez family was called and he changed the tire.

In any event, one week after his discharge by Dr. Segura, he consulted Dr. Raoul Rodriguez, an orthopedist, who diagnosed a lumbar sprain. Dr. Rodriguez examined plaintiff eight times between November 27, 1972 and July 19, 1973 and prescribed extensive physical therapy. After his last visit, Dr. Rodriguez concluded he could do nothing further to improve plaintiff’s condition; therefore, he discharged him with the suggestion he attempt lighter work. This orthopedist unequivocally said he was incapable of performing his duties as a grinder as of July 19, 1973, and he expressed the hope that plaintiff might one day regain the capacity to perform the work he could do before he was injured.

In March 1974, still complaining of pain, plaintiff consulted Dr. Pedro Angulo, a general practitioner, who was treating him on the day of the trial. Dr. Angulo concluded plaintiff’s disability was incurred as a result of the July 31, 1972 accident and he diagnosed the cause as “fibrositis” or osteoarthritis, traumatically induced. Dr. Rodriguez never heard of “fibrositis,” a condition caused by scar tissue pressing on nerves, and stated that he thought either diagnosis was highly improbable.

To some extent there is a conflict in the medical testimony. The thrust of appellants’ argument is that the trial court erred in assigning more weight to the testimony of the general practitioner than to the findings of the two specialists and as a result the plaintiff has failed to establish his claim of disability by a preponderance of the medical evidence. In support of their position, defendants rely upon the case of Knighten v. Am Amusement Company, 272 So.2d 60 (La.App. 4th Cir. 1973), which capsulizes the jurisprudence governing the burden of proof in compensation cases, the probative value of medical testimony of specialists, vis-a-vis general practitioners, and the weight to be assigned the testimony of the treating physician as opposed to the physician who makes a subsequent examination for the evaluation of disability only. It held:

“The established rule is that in compensation cases, as in other cases, plaintiff bears the burden of proving his claim with legal certainty by a preponderance of the competent evidence. Hebert v. Your Food Processing & Warehouse, Inc., 248 La. 197, 177 So.2d 286; Dobard v. R. Theriot Liquor Stores Inc., La.App., 195 So.2d 350. It is also generally true that the testimony of a specialist as to matters which fall within his field of specialization is entitled to greater weight than that of another practitioner who is not a specialist in that field. Blue v. Kinney Company, La.App., 256 So.2d 145; Davis v. Lesnack, La.App., 205 So.2d 77; Prier v. Massman Construction Company, La.App., 205 So.2d 109; Manning v. Herrin Transportation Company, La.App., 201 So.2d 314. It is further generally true that the testimony of a physician who examines and treats the injured party is entitled to greater weight than that of a physician who only examines the party at a later date. Lotz v. Jamerson Hardware Store, La.App., 211 So.2d 391; Vidrine v. United States Fidelity & Guaranty Co., La.App., 205 So.2d 178; Treadway v. State Farm Insurance Company, La.App., 204 So.2d 609; Meche v. Maryland Casualty Company, La.App., 204 So.2d 719.” 272 So.2d at 64.

However in those instances where disability is predicated almost exclusively on the subjective complaints of pain, unsupported by any objective clinical, organic, or pathological findings, the Supreme Court has limited the probative value to be assigned to the expert medical testimony by subjecting its evaluation to the trial court’s determination of the credibility of the lay witnesses. In the case of Williams v. Hudson East, 261 La. 959, 261 So.2d 629, 631 (1972), the Court, speaking through Justice Tate, held:

“A medical witness may possess a peculiar competence to testify on questions of medical causation and of possible relation of symptoms to the medical injury.. His opinion as to the degree of residual pain, or its legal consequences, is not necessarily as persuasive. 3 Larson, Workmen’s Compensation Law, Sections 79.50-79.54 (1971).
“Proof of disability arising by reason of subjective pain must of necessity depend to a great extent upon the trial court’s evaluation of the truthfulness of the claimant’s complaints in the light of the entire record of medical and lay testimony. Thus, a medical estimate of the degree of pain must be evaluated in the context of such entire record, and a medical opinion as to whether a permanent disability is partial or total must yield to the legal test thereof.”

The claimant bears the burden of proving that he is totally and permanently disabled. The testimony of the two expert orthopedic doctors, George Berkett and Raoul Rodriguez, should be accorded greater weight than that of Dr. Pedro Angulo, a general practitioner. As between the two orthopedists, the testimony of Dr. Rodriguez, one of the treating physicians, should be assigned greater probative value than that of Dr. Berkett, whose examination was for the purpose of evaluation. Finally, should the record sustain the conclusion that the experts were unable to find any organic or pathological basis — in other words, objective symptoms — for plaintiff’s subjective complaints of pain, then the credibility call of the trial judge as to the lay testimony must prevail.

Even disregarding the testimony of Dr. Angulo, the medical evidence of Dr. Rodriguez supports the judgment for plaintiff. It is true that orthopedist Dr. George Berkett rendered a contrary opinion. He examined plaintiff on two occasions, first on November 9, 1972 (before Dr. Rodriguez began treatment) and next on February 28, 1974 (after Dr. Rodriguez had discharged plaintiff as having reached maximum recovery). His findings on each examination were identical. He testified plaintiff’s complaints of pain were exaggerated and his response to certain tests had no medical basis. In short he suggested plaintiff was either a malingerer or had problems that were psychological, not physiological, in origin.

Had Dr. Rodriguez not administered a nine-month course of medication-physical therapy treatment after Dr. Berkett’s first examination, we might attach more significance to Dr. Berkett’s inferences. Both counsel and the trial court recognized the reputation Dr. Rodriguez enjoys in the community as a qualified orthopedist, and we cannot subscribe to a result that suggests he would administer treatment for a nonexistent problem.

The lay testimony of the family minister, a friend and the plaintiff’s daughter confirm he was free from pain before the accident and has since that time been extremely limited in his activities because he is unable to walk normally or engage in activities requiring bending and lifting. We conclude the medical evidence establishes he was disabled as of the date of trial.

In his written reasons for judgment after concluding that the plaintiff is presently totally disabled from his job-related injury, the trial judge candidly acknowledged that he was unable to determine if the disability is permanent or not. He stated, “It has existed, but how long it will continue remains to be seen.” He then properly concluded that the plaintiff is totally and permanently disabled and entitled to 500 weeks compensation, noting the right of the employer to have the claimant reexamined and his disability medically evaluated in six months.

For the reasons assigned, the judgment appealed from is affirmed at defendants’ cost.

AFFIRMED.

      . “When a claimant seeking workmen’s compensation is disabled at the time of the trial, and the evidence is inconclusive regarding the degree of his recovery, it has been the practice of our courts to apply LSA-Jt.S. 23 :1331 and award compensation for the maximum number of weeks allowed for permanent disability, reserving to the defendant the right to examine the plaintiff and revise the judgment after six months in the event the disability should terminate or lessen.” Husband v. Insurance Company of North America, 284 So. 2d 787, 789 (La.App. 4th Cir. 1973). See also Levine v. Liberty Mutual Insurance Company, 305 So.2d 665 (La.App. 3rd Cir. 1974) and Bourgeois v. Fireman's Insurance Co. of Newark, N. J., 316 So.2d 3 (La.App. 1st Cir. 1975).