text:
    Ferdinand ANDREWS v. C. F. & I. STEEL CORPORATION, American Home Assurance Company, Missouri Pacific Railroad Company and the Colorado and Wyoming Railway Company.
    No. 9920.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 7, 1979.
    Rehearing Denied April 16, 1979.
    Writ Refused June 11, 1979.

      Seelig, Cossé & Frischhertz, Lloyd N. Frischhertz and Dave Seelig, New Orleans, for plaintiff-appellee.
    Phelps, Dunbar, Marks, Claverie & Sims, Keith W. Petrie and Esmond Phelps, II, New Orleans, for Missouri Pacific Railroad Company, defendant-appellant.
    Terriberry, Carroll, Yancey & Farrell, Alan L. Offner, William E. Wright and Robert J. Barbier, New Orleans, for Intero-cean Stevedoring, Inc., and Employers National Insurance Company, intervenors-ap-pellees.
    McGlinchey, Stafford, Mintz & Hoffman, Frederick R. Campbell, New Orleans, for C. F. & I. Steel Corp. and American Home Assurance Co., defendants-appellants, and Colorado and Wyoming Railway Co., defendant-appellee.
    Before SAMUEL, STOULIG and BOU-TALL, JJ.
   STOULIG, Judge.

Plaintiff, Ferdinand Andrews, was injured in a slip-and-fall accident in a railroad gondola freight car as he prepared to assist in unloading a cargo of steel rails packed in open-end, 55-gallon metal drums. He sued the rail shipper and three of the four railroad companies involved in moving the car from its point of origin in Colorado to its final destination at the Nashville Avenue wharf in New Orleans.

On April 16, 1975, the Colorado and Wyoming Railway Company (C. & W.) accepted the Missouri Pacific owned solid bottom gondola car from the C.F. & I. Steel Corporation at Manitowac, Colorado. The car was loaded by C.F. & I. The C. & W. hauled the car one-half mile to the first connecting carrier’s line, The Denver and Rio-Grande Western Railroad Company (D. & R.G.W.). Next the D. & R.G.W. moved the car three miles to Pueblo, Colorado, and from there the Missouri Pacific Railroad hauled the car approximately 1200 miles to its New Orleans terminal. On April 25, 1975 at 7 p. m., Missouri Pacific released the car to the New Orleans Public Belt Railroad which brought it to the dockside. The accident occurred four days later on April 29, 1975.

After a trial on the merits, the district judge found the combined negligence of C.F. & I. and the Missouri Pacific caused the oil slick on the gondola floor upon which plaintiff slipped. It awarded $30,137.32, casting both defendants as solidary obligors along with the shipper’s insurer, American Home Assurance Company. The suit against C. & W. was dismissed because it had only hauled the car a short distance and the D. & R.G.W. was dismissed on a declina-tory exception to the court’s jurisdiction over it.

Plaintiff’s employer, Interocean Steve-doring, Inc., and its workmen’s compensation insurer, Employers National Insurance Company, intervened under R.S. 23:1101 and 1103 to have recognized its lien for $5,832.85 workmen’s compensation benefits paid to plaintiff for the injuries forming the basis of this suit.

Defendants C.F. & I., its insurer and Missouri Pacific have appealed. Plaintiff answered the appeal to have C. & W.’s dismissal reversed and the intervenors appealed to have their judgment recast to recognize their lien against the award rather than to render judgment against the plaintiff as decreed in the judgment. All litigants concede the amendment in favor of intervenors should be made.

Appellants argue that the plaintiff failed to prove the negligence alleged against both C.F. & I. and Missouri Pacific by either direct or circumstantial evidence sufficient to establish a prima facie case. They correctly contend negligence may never be presumed, citing Gray v. Nathan, 221 So.2d 859 (La.App. 1st Cir. 1969); Crier v. Marquette Casualty Company, 159 So.2d 26 (La.App. 4th Cir. 1963). It may be established by direct or circumstantial evidence.

Our law recognizes the fact that a plaintiff is not always in a position to establish allegations of negligence by testimonial proof. In some instances justice is better served when the defendant is obliged to explain and develop the facts upon which conclusions of negligence must be based. The evidentiary doctrine of res ipsa loquitur illustrates this point and as was noted by the court in Percle v. St. Paul Fire & Marine Ins. Co., 349 So.2d 1289 (La.App. 1st Cir. 1977), it is applied when “ * * * the facts of the occurrence warrants an inference of negligence * * * grounded on the principle that such instances do not commonly occur in the absence of negligence * * Res ipsa, a rule of circumstantial evidence (Meyer v. St. Paul-Mercury Indemnity Co., 73 So.2d 781 [La. 1953]), is inapplicable to our facts because the instrumentality that caused damage to plaintiff was not exclusively within the control of any one of the defendants. See Alexander v. St. Paul Fire & Marine Insurance Co., 312 So.2d 139 (La.App. 1st Cir. 1975). If we could apply res ipsa loquitur, we could affirm the trial court’s finding of liability.

However, the facts of this case require our application of the rule that a plaintiff relying on circumstantial evidence must exclude with fair certainty other reasonable hypotheses except that the damages claimed resulted from the negligence of the defendant. See Federal Insurance Company v. Cinnater, 305 So.2d 720 (La.App. 4th Cir. 1974), and Romero v. Butcher Air Conditioning Company, 255 So.2d 132 (La.App. 3rd Cir. 1971).

When we review the evidence before us in the light of the rules of negligence discussed, we conclude the judgment favoring plaintiff should be reversed because the proof fails to rule out to a reasonable degree of probability any other causes for the foreign substance’s presence on the floor.

A glaring omission in the chain of proof offered to hold the shipper and the Missouri Pacific liable is the failure to cite as a defendant the last carrier, New Orleans Public Belt Railroad, to whom the gondola car was released by Missouri Pacific four days before the accident. Parked dockside for several days the open-top car was exposed to the elements and accessible to others. The oily substance on the flooring could have been introduced into the car in any number of ways.

The trial court in verbal reasons for judgment stated:

“ * * * The record reflects that the Petitioner suffered the injuries described in the medical report and his testimony was the result of slipping on a foreign substance which the Court determines to be a greasy or oily type substance which was on the floor of the open gondola in which the described merchandise of joint bars or angle bars were being shipped.
“When did the oil or greasy substance from the joint bars which was testified to • was in the process of being added to the joint bars or the joint bars being dipped into oil or grease for the sake of preservation? When did that oil or grease seep on the floor bed of the gondola?”

The trial court concluded the oil on the floor emanated from the bars and was the preservative substance in which they were dipped prior to shipment. On this conclusion, based on circumstantial evidence, the finding of liability ultimately rests.

The plaintiff failed to introduce any evidence to support its theory that the oil on the car floor came from the iron rails packed in the barrels. Plaintiff testified that he stepped into the car along with George Lafargue to estimate how they would unload the cargo. After walking several feet in a narrow aisle flanked by metal drums on both sides, he slipped in a greasy substance falling backward and severely cutting his upper torso. Plaintiff understandably did not stay on the scene to investigate the source of the oil. However, after his medical requirements were met, his coworker George Lafargue, who appeared as a witness, unloaded the iron rail cargo with the assistance of another man. The rails were protruding from the drums and had they been oily enough to leave grease dripping on the floor throughout the entire car, as Kenneth Merrick, assistant wharf superintendent, attested, it would seem Lafargue or Merrick would have noticed the greasy conditions of the unloaded steel joints and barrels if, in fact, there was an oily substance emanating from the cargo.

The only testimony that touched on the possibility of an oily coating was that of George Simony, a C. & W. vice president who sometimes observes the loading of cargo by C.F. & I. but did not do so with this particular shipment. He explained rails are customarily soaked in oil prior to shipment to preserve the material; however, he explained the liquid is absorbed so that it leaves a light coating that does not drip and that if someone ran a finger over the material, he would probably pick up an oil smudge.

All the railroad personnel who testified explained they would not have accepted this cargo if it were not safely transportable and the fact that no line’s rejection appears in the waybill evidences it was received by all in good condition. We are not overly impressed with these assertions and certainly would not base a reversal on this evidence. This is noted to point out there is nothing in the testimony on routing that helps rule out other reasonable explanations of how the grease came to be on the floor when plaintiff fell. Were we dealing with an enclosed and sealed boxcar that had remained closed from the point of origin to the time when plaintiff entered to unload, the circumstances would in and of themselves obviate a need to exclude other possible theories of fault. However, this is not the case. The evidence is insufficient to support the factual conclusion of the trial court that the oil on the floor emanated from the rails and therefore we reverse its judgment. Arceneaux v. Domingue et al., 365 So.2d 1330 (La.1978).

For the reasons assigned, the judgment appealed from is reversed and it is now ordered that plaintiff’s suit and the petition of intervention be dismissed. Plaintiff is to pay all costs.

REVERSED AND RENDERED.

      . The Colorado & Wyoming Railway Company is a totally owned subsidiary of C.F. & I. Steel Corporation with its own board of directors and its own officers.


source: Caselaw Access Project

author: LEMMON, Judge.

license: Public Domain

text:
    Dorothy BERRY, Individually and as natural tutrix of her minor child, Taffe Berry v. Harold RAWLS, Jr. and Allstate Insurance Company.
    No. 9924.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 7, 1979.
    Francipane, Regan & St. Pee’, Charleé J. Ferrara, and Edward P. Comeaux, Metairie, for plaintiffs-appellants.
    Murphy & Simon, David T. Bowman, New Orleans, for defendants-appellees.
    Before REDMANN, LEMMON and GARRISON, JJ.
   LEMMON, Judge.

In this automobile accident case plaintiff has appealed from a judgment dismissing her suit on the basis of answers to jury interrogatories which found her to be con-tributorily negligent. The issue on appeal is whether her conduct, as established by the evidence in the record most favorable to the prevailing party, constituted contributory negligence.

An understanding of the physical makeup of the roadway at the point of the accident is essential to the determination of the negligence issue. North Claiborne Avenue in the vicinity of St. Bernard Avenue, ran east-west, while St. Bernard ran north-south. Although the intersection of the two avenues was controlled by traffic lights, a southbound motorist on St. Bernard, who intended to turn right at Claiborne, could avoid the traffic light by utilizing a turning lane provided for right turning motorists before the intersection. Traffic entering Claiborne from the turning lane was controlled by a yield sign, and a triangular traffic island separated the turning lane from the normal southbound lanes of St. Bernard at the intersection.

This relatively simple and common traffic pattern was complicated somewhat by the alignment of Lapeyrouse Street, which was close to and roughly parallel to St. Bernard in the area, in that Lapeyrouse intersected the St. Bernard turning lane shortly before that lane intersected Claiborne. A stop sign controlled southbound traffic on La-peyrouse at its intersection with the turning lane, so that a southbound motorist on Lapeyrouse was required first to stop for a stop sign at the turning lane and then, after proceeding a short distance in the turning lane, to yield to westbound traffic on Claiborne. Thus, the scene of the accident, as described in an exhibit and in testimony, was comprised as shown below:

Prior to the collision defendant had been traveling south on St. Bernard and had entered the turning lane for the purpose of proceeding west on Claiborne. He testified: When he stopped at the yield sign, he was the only car there, and there was little room (3 to 3V2 feet) to his right between his car and the curbing. While looking to his left, he waited for five or six seconds in a stopped position for traffic on Claiborne to clear, and then without turning his head forward or to the right he proceeded forward, intending to move onto Claiborne. As he began to move forward, he heard metal tearing before he took his foot completely off the brake and before he realized there was a car to his right. The right headlight and fender of his car struck the rear section of the left front fender of plaintiff’s car.

Plaintiff testified: She had traveled south on Lapeyrouse Street, and after stopping for the stop sign she entered the St. Bernard turning lane and pulled up “directly even” with the yield sign, behind two cars which were in front of the sign, one behind the other. Defendant’s car was not there at the time. She had remained in the stopped position for five to ten seconds when defendant suddenly ran into her car. At the time of impact one of the two cars in front of her had moved out of the turning lane onto Claiborne and the second was in the process of leaving. The impact caused her vehicle to move forward two or three feet. Her car sustained damage in the amount of $183.00, and the damage to defendant’s car was “minor”.

The jury, answering special interrogatories, found that both parties were negligent. In view of these findings it must be assumed that the jury rejected plaintiff’s version of the occurrence and accepted defendant’s version, at least to the extent that he was at the yield sign prior to plaintiff’s arrival there.

Conceding this point, plaintiff argues that defendant admitted his own negligence in moving from a stopped position without looking forward or to his right and that this negligence was the sole cause of the accident.

Even if defendant’s admitted conduct fell below the standard of reasonable care, the decision in this case turns on a determination of the reasonableness of plaintiff’s conduct under the circumstances.

The purpose of the turning lane off St. Bernard was to permit traffic to flow into Claiborne without waiting for a green traffic signal at the corner. Although the turning lane at the point of entry into Claiborne was wide enough for two cars, it was not lined for two lanes of traffic, and there was no evidence that two lanes were authorized or expected to enter Claiborne simultaneously. It was therefore reasonable to expect that a motorist at the yield sign in the turning lane would enter the nearest lane of Claiborne traffic.

Accordingly, under the apparently accepted fact that defendant reached the point of-collision first and was alone when he stopped at the yield sign, this is not simply a case of a motorist making a right turn from the left lane, as plaintiff characterizes defendant’s conduct. The determinative issue is the reasonableness of plaintiff’s conduct in pulling alongside and slightly to the front of defendant while he was looking to the left and was waiting for traffic on Claiborne to clear. Under the overall circumstances of this case plaintiff should reasonably have anticipated that defendant, as the lead motorist in the turning lane, would turn at any moment into the nearest lane on Claiborne traffic. Nevertheless, she placed herself directly in that reasonably anticipated path without allowing room for the obviously expected maneuver, apparently for the purpose of squeezing out into Claiborne ahead of defendant. This constituted unreasonable conduct, which although perhaps not the sole cause of the accident was at least a concurrent cause, which bars plaintiff’s recovery.

AFFIRMED.


author: BEER, Judge.

text:
    Gladys Mae CARMOUCHE v. Irving J. CARMOUCHE.
    No. 9926.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 7, 1979.
    Steven F. Griffith, Sr., Ltd., Steven F. Griffith, New Orleans, for plaintiff-appellant.
    Victor E. Bradley, Jr., Norco, for defendant-appellee.
    Before GULOTTA, SCHOTT and BEER, JJ.
   BEER, Judge.

Appellant, Gladys Mae Carmouche, sought and obtained a judicial separation from her husband in June, 1973, and, in January, 1975, he obtained a divorce. That judgment ordered him to pay $120 per week child support for their three minor children, who resided with Mrs. Carmouche. In June, 1976, Mr. Carmouche obtained custody of one of the minors, and, thereafter, the child support award for the two minor children remaining in the custody of Mrs. Car-mouche was proportionately reduced to $80 per week. By amended judgment in June, 1976, Carmouche was also ordered to pay $5 per week alimony. In March, 1978, Car-mouche filed a motion to reduce child support on the ground that one of the children still residing with Mrs. Carmouche had reached majority. Mrs. Carmouche moved to increase child support and also sought judgment for past due alimony at attorney’s fees. After hearing, the court reduced the child support award to $40 per week for the minor residing with Mrs. Car-mouche and awarded her $410 in past due alimony but refused to increase the amount of alimony payments. She appeals this refusal and, additionally, contends that the mathematical calculation of $410 in past due alimony is erroneous and should be increased to $505. Carmouche seeks a credit against the alimony award based upon alleged overpayment of child support, but this issue is first raised on appeal, and we reject it without further discussion.

The record shows that Carmouche, an electrician employed by Kaiser Aluminum, has remarried and continues to have legal custody of one of the minor children of his former marriage, although that child, age 17, is working and residing with a sister. Carmouche’s income from his employment in 1977 was $17,420.96. The record indicates that his most recent weekly take home pay approximates $220, and, though he testified that his annual expenses were approximately the same as those itemized in an earlier proceeding — $15,919, this figure included $6,340 in child support for. three children. He contends that his income tax will be higher now that two of the children have reached majority and cannot be claimed as dependents.

Mrs. Carmouche is employed as a part-time waitress. She earns $2 per hour and works approximately 28 hours per week. She estimates additional income of approximately $1.50 per day in tips, though we believe that figure to be deflated. Though no itemized list of her expenses was apparent from the record, cross-examination of Mrs. Carmouche revealed that she pays $40.60 per month for insurance; $260 per month for food; $20 for Larry’s lunch expenses; $30 per month, dentist; $80 per month entertainment; $40 per month miscellaneous; $40 per month to reduce a loan (a total of approximately $510). Mrs. Car-mouche does not own an automobile. She does own her home but testified that it is in need of major repair to the extent that parts of it are presently uninhabitable.

Insofar as the matter of alimony is concerned, we find that there was, indeed, a miscalculation with respect thereto and that the proper computation should have been $505. However, the quantum of the alimony award has caused us considerable concern, for, if any alimony is due, the amount awarded (approximately $20 per month) is ludicrous. Louisiana Civil Code Article 231 provides that alimony shall be granted in proportion to the wants of the person requiring it and the circumstances of those who are to pay it. Obviously, the trial court has made a factual determination that alimony should be paid. In view of that factual determination and based upon all the income and expense figures of both parties that can be gleaned from this record, we conclude that the alimony should be no less than $100 per month. Accordingly, the judgment of the 29th Judicial District Court for the Parish of St. Charles, dated May 30, 1978, must be amended and recast so as to provide as follows:

IT IS NOW ORDERED, ADJUDGED AND DECREED that there shall be judgment herein in favor of Gladys Mae Car-mouche and against Irving J. Carmouche as follows:

Irving J. Carmouche is condemned to pay alimony at the rate of $100 per month from May 30,1978, effective on the date that this judgment shall become final. Child support in the amount of $40 per week shall continue to be paid by Irving J. Carmouche to Gladys Mae Carmouche for the support of their minor son, Larry, as provided in the district court judgment of May 30, 1978, and Irving J. Carmouche is condemned to pay the balance due on the medical bill from Dr. Almerico for dental care on behalf of their son, Michael, a minor at the time of the treatment. Irving J. Carmouche shall pay plaintiff’s attorney’s fee in the amount of $100 plus all costs in both the trial court and in this court. Past due alimony is fixed at $505.

As amended and recast, the judgment is affirmed.

AMENDED, RECAST AND AFFIRMED.

      . Mr. Carmouche was ordered to pay the $300 dentist bill in addition to child support of Larry.


author: GULOTTA, Judge.

text:
    Mrs. Hilda Fourdais LOTZ, Mrs. Ruby Lotz Heigle, Joseph R. Lotz and George Lotz v. Ernest J. HESSLER, Register of Conveyances.
    No. 9929.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 7, 1979.
    Rehearing Denied April 16, 1979.
    Writ Refused June 11, 1979.
    Roccaforte & Rousselle, Leo W. Rousselle, New Orleans, for plaintiffs-appellants.
    H. Gordon Hartman, Bernhardt C. Heebe, Odom B. Heebe, New Orleans, Frank J. D’Amico, New Orleans, for defendant-ap-pellee.
    Before GULOTTA, SCHOTT and BEER, JJ.
   GULOTTA, Judge.

This dispute arises out of an agreement to buy and sell real property. Plaintiffs, sellers of the property, appeal from the dismissal of their Mandamus suit directed against the Register of Conveyances and the defendant purchaser seeking cancellation of a Notarial Proces Verbal and the Agreement to Purchase the property. We affirm.

On January 6, 1978 Richard Hattier agreed to purchase the property located in the Parish of Orleans from plaintiff for a price of $32,000. The sale was conditioned upon the ability of the purchaser to borrow $25,600 at interest not to exceed nine and one-quarter percent (9V4%), payable in thirty years. The standard form agreement to buy and sell provided:

“Should purchaser, seller or agent be unable to obtain the loan stipulated above within fifteen days from acceptance hereof, this contract shall then become null and void and the agent is hereby authorized to return the purchaser’s deposit in full. Commitment by lender to make loan subject to approval of title shall constitute obtaining of loan.”

The act of sale was to be passed before lender’s Notary on or before March 3, 1978.

According to the Proces Verbal the sellers and their attorney were notified on February 16, 1978 that the Act of Sale would be passed on March 2, 1978 at the Notary’s office. The Proces Verbal further states that at the designated hour the purchaser appeared and “offered ... to comply with his agreement to purchase . . .” but that the sellers failed to appear. This document and the Agreement to Purchase were registered in the Conveyance Office. Plaintiffs refused to convey title and this suit followed.

It is plaintiffs’ contention that because the purchaser “neglected to notify” the sellers that he had obtained the loan within the fifteen day period, the agreement, by its terms, is null and void. Accordingly, plaintiffs claim the registration in the Conveyance Office of the null and void contract is an encumbrance on the property and should be cancelled.

The trial judge in dismissing plaintiffs’ suit stated in oral reasons “. . . you have not shown reasons for cancellation of the contract.” We agree.

According to the purchaser, Hattier, he had arranged to obtain the loan from his father. Furthermore, in a November 28, 1977 letter from the Security Homestead, Hattier was advised that the Homestead “will entertain permanent financing” on the property. In this letter the loan officer of the Homestead indicated that the loan was predicated on the completion of renovations and a CAB appraisal. Hattier’s testimony regarding whether he had communicated to sellers the fact that he had obtained a loan is somewhat unclear. It is clear, however, that he did not communicate this fact to the sellers’ attorney. According to Raymond Heigle, who was “handling” the purchase on behalf of the sellers, the purchaser had not made the loan within the stipulated time and the sellers were not informed that Hattier had obtained the loan. According to Heigle he first learned of the purchaser’s commitment to obtain a loan at the time he received the February 16th letter advising that the Act of Sale was set for March 2nd.

We find no merit to plaintiffs’ contention that the purchaser’s failure to communicate to them the fact that the loan had been acquired within fifteen days of the date of the agreement renders the agreement null and void. The agreement places no requirement upon the purchaser to notify the sellers that a loan had been acquired. The sale is conditioned upon the purchaser’s ability to make a loan in the stipulated amount within a designated time and not upon the purchaser communicating acquisition of the loan within fifteen days from acceptance.

Although the trial judge did not state that he specifically found the purchaser had acquired the loan, a reasonable conclusion might be drawn from the judge’s dismissal of plaintiffs’ suit that he felt the purchaser did in fact acquire the loan.

It is significant that the condition in the agreement to purchase, upon which the sellers rely to nullify the contract, is one placed in the agreement for the benefit of the purchaser. In Felder v. Terry, 351 So.2d 244 (La.App. 4th Cir. 1977), writ denied, 353 So.2d 1046 (La.1978), we stated;

“The provision conditioning the sale on the purchaser’s ability to make a mortgage loan is a suspensive condition for the sole benefit of the purchaser who may waive the provision. The sellers are interested only in getting the purchase price regardless of the source. Morrison v. Mioton, 163 La. 1065, 113 So. 456 (1927); Garlete v. Rodriguez, 126 So.2d 182 (La.App. 4th Cir. 1961).”

See also Weingart v. Delgado, 204 La. 752, 16 So.2d 254 (1943); Probst v. Di Giovanni, 232 La. 811, 95 So.2d 321 (1957).

We do not find our holding in the Felder ease to be inconsistent with our holding in Paternostro v. Capitano, 205 So.2d 894 (La. App. 4th Cir. 1968). In Felder we ordered specific performance in a case where the purchaser, though favored with the same suspensive condition as in our case, agreed to pay cash instead of making a mortgage loan. In Paternostro, this court concluded that the agreement “became null and void” because the purchasers did not obtain the loan within the stipulated time. Unlike Paternostro, the purchaser in our case testified that he had acquired the loan. Under the circumstances we do not conclude that the purchaser’s failure to communicate to the sellers, within fifteen days of acceptance, that the loan had been acquired makes the contract null and void. We agree with the trial judge in his conclusion that plaintiffs “. . . have not shown reason for cancellation of the contract.” The judgment is affirmed.

AFFIRMED.

      . This condition is a suspensive one. See Felder v. Terry, 351 So.2d 244 (La.App. 4th Cir. 1977), writ denied, 353 So.2d 1046 (La.1978); Groghan v. Billingsley, 313 So.2d 255 (La.App. 4th Cir. 1975), writ denied, 318 So.2d 46 (La. 1975).

      . See Kenney v. Wedderin, 220 La. 285, 56 So.2d 550 (La.1952).


text:
    Mrs. Calvin J. PEPITONE et al. v. STATE FARM MUTUAL AUTOMOBILE INSURANCE CO., et al.
    No. 9939.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 8, 1979.
    Rehearing Denied April 16, 1979.
    Writ Refused June 11, 1979.

      Jerome Friedman, Metairie, for plaintiffs-appellants.
    Dillon & Cambre, Gerard M. Dillon, New Orleans, for defendant, Fireman’s Fund Insurance Co.
    Porteous, Toledano, Hainkel & Johnson, John J. Hainkel, Jr., New Orleans, for defendant-appellee, Allstate Insurance Co.
    Before REDMANN, LEMMON and GARRISON, JJ.
   LEMMON, Judge.

This is a wrongful death action filed by the widow and children of Calvin Pepitone. Plaintiffs have appealed from summary judgments dismissing two of the defendants prior to trial.

Facts

Pepitone was fatally injured in an automobile accident at the intersection of Kent and Camphor streets in Jefferson Parish. The automobile he was driving in a northerly direction on Kent was struck by two cars, one eastbound and one westbound on Camphor. Both streets were two-way, two-lane local streets in a residential neighborhood, and there were stop signs at the intersection controlling traffic on Kent. The stop sign on the southeast corner, however, was completely obscured from the view of northbound motorists by trees, shrubs and foliage.

Pepitone was employed as an electrical inspector in the Jefferson Parish Department of Safety, and the accident occurred during his usual working hours.

Plaintiffs sued the Parish of Jefferson, its Traffic Engineer, its Director of the Department of Roads and Bridges, and their general liability insurer; the owner of the property at the southeast corner of the intersection and her homeowner’s insurer; and the drivers of the other two vehicles. They alleged that the obstructing trees and shrubs were located on the street right of way owned by the parish or on the private property owned by the homeowner. The homeowner’s insurer and the parish’s insurer filed separate motions for summary judgment, which were both granted, and those judgments are the subject of this appeal.

Judgment Dismissing Homeowner’s Insurer

This insurer’s motion for summary judgment was based on the assertion that the obstructing trees and shrubs were not located on its insured’s property and that its insured therefore had no duty to trim or remove them. In support of its motion the insurer filed a survey which shows that the trees and shrubs were located within the street right of way, between the surfaced roadway and the homeowner’s property line. Plaintiffs did not file a countervailing survey, but did file four photographs and a copy of the investigating officer’s sketch of the area, none of which showed the location of the obstructing trees and shrubs in relation to the homeowner’s property line.

On the basis of the foregoing there is no genuine issue as to the material fact that the trees and shrubs were not located on the homeowner’s property. The question, therefore, is whether the insurer is entitled to judgment as a matter of law.

The owner of property abutting the right of way of a public street has no duty to motorists using the street to trim or remove trees and shrubs growing on the right of way which may obstruct traffic signs and controls. The duties imposed on a person because of his owning or occupying land generally do not include responsibility for objects which are not located on the person’s property. Furthermore, the liability imposed on a person by C.C. art. 2317 for “damage occasioned by things which we have in our custody” does not extend to damage caused by things located on adjoining property when there are no other circumstances indicating custody or control of the thing.

Accordingly, the summary judgment dismissing the landowner’s insurer was properly granted.

Judgment Dismissing Parish’s Insurer

Plaintiffs’ claim against this insurer raises many factual and legal issues. However, we need not determine whether there is a genuine factual issue of whether the accident occurred in the course of Pepitone’s employment and arose out of it, or whether as a matter of law an employee of one department of a parish is barred by the exclusivity of remedy provision of R.S. 23:1032 from asserting a claim against another department of the parish or its employees, or against the parish’s department heads as executive officers. Even if these issues were conceded favorably to plaintiffs, the summary judgment must be affirmed on a basic determination of duty and causation.

When a parish undertakes control of intersecting roads or streets by installation of signs or mechanical devices, the parish (whether or not it initially had a duty to erect and maintain signs or devices) thereafter has the duty to maintain the signs or devices.so as not to cause traps or undue dangers to motorists using these roads and streets. Lochbaum v. Bowman, 353 So.2d 379 (La.App. 4th Cir. 1977). In this respect plaintiffs contend that the failure of the parish and its named employees to maintain an unobstructed view of the stop sign created a trap for northbound motorists approaching the intersection.

The critical issue is whether, under the undisputed facts of this case, the intersection with an obstructed sign constituted a trap, as a matter of law, to the motorist who approached the intersection on the unfavored street.

If the parish by its inaction caused the sign to become and to remain obstructed, the resulting obstruction at most can be regarded as leading (or trapping) a northbound motorist into believing that there is no stop sign and therefore that the intersection is uncontrolled, in the absence of other factors which might indicate the street on which the motorist is traveling is the favored street. The duty of a motorist who approaches an uncontrolled intersection with a street of equal dignity is to determine that he can make the crossing safely before proceeding into the intersection. Soniat v. State Farm Mut. Auto. Ins. Co., 340 So.2d 1097 (La.App. 4th Cir. 1976); Gutelius v. Phoenix Ins. Co., 266 So.2d 717 (La.App. 4th Cir. 1972). Therefore, when two cars approach an uncontrolled intersection of local neighborhood streets, neither motorist can reasonably believe he has an unqualified right of way. Accordingly, a motorist approaching an intersection, who actually does not have the right of way, but who is led to believe the intersection is uncontrolled, cannot reasonably be said to have been trapped or deluded into the belief that he had an unqualified right of way.

On the basis of this analysis we hold that an obstructed stop sign at an intersection of local neighborhood streets of equal dignity does not, as a matter of law, constitute a trap to motorists approaching the intersection on the unfavored street.

From the standpoint of causation in the present case any failure by the parish to trim or remove trees and shrubs obstructing the stop sign could not have caused Pepitone to assume that he had the right of way and trapped him into entering the intersection without first ascertaining that it was safe to do so. Accordingly, neither the parish nor its named officers were guilty of any breach of a legal duty which caused damage to plaintiffs, and this insurer was also properly dismissed by summary judgment.

AFFIRMED.

      . Only the insurers were served.

      . Stated otherwise, a motorist approaching an uncontrolled intersection must proceed as if there were yield signs controlling traffic in all directions, and the so-called directional right of way does not convert one street into a superior one, but merely determines which vehicle shall proceed first after proper precautions are observed.

      . Arguably, the failure to remove the obstruction was a cause-in-fact of the accident, since if the sign had been visible the chances are that Pepitone would have stopped. Nevertheless, not every act or omission constituting a cause-in-fact gives rise to liability, and the crucial question was whether the defendant was under a legal duty to protect against the particular risk involved.
      Here, the defendant was under a legal duty not to trap a motorist on an unfavored street into believing he had the right of way. The defendant was not under a legal duty to warn a motorist approaching every intersection which was (or appeared to be) uncontrolled that he could not enter the intersection without first ascertaining that it was safe to do so, since a motorist approaching an uncontrolled intersection should know that he cannot enter without first ascertaining that it is safe to do so.


author: BEER, Judge,

text:
    Nita Jean Welch, wife of Donald J. HINGLE. v. Donald J. HINGLE.
    No. 10423.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 13, 1979.
    C. James Gelpi, New Orleans, for relator.
    Dudley D. Flanders, New Orleans, for respondent.
    Before REDMANN, STOULIG and BEER, JJ.
   A husband invokes our supervisory jurisdiction to halt temporary pre-divorce alimony proceedings by his wife as an adjunct to her suit for separation from bed and board. The husband relies on Orr v. Orr, 1979, - U.S. -, 99 S.Ct. 1102, 59 L.Ed.2d 306, as effectively invalidating under U.S.Const. amend. 14, as denying equal protection of the law, the Louisiana temporary alimony law, Article 148 of the Louisiana Civil Code.

La.C.C. 148 is couched in terms of gender of the spouses. We hold, nevertheless, as authorized by C.C. 17 and 21 and, in keeping with the civil law tradition of “extensive interpretation,” Geny, Method of Interpretation (La.Law Inst, trans.) § 105, and in view of the spouses’ mutual obligations of “fidelity, support and assistance,” C.C. 119, which survive at least in part until final divorce, Hillard v. Hillard, 1954, 225 La. 507, 73 So.2d 442, and in consonance with Whitt v. Vauthier, La.App. 4 Cir. 1977, 316 So.2d 202, writ refused, La., 320 So.2d 558, cert. denied 424 U.S. 955, 96 S.Ct. 1429, 47 L.Ed.2d 360, that the operative principle of C.C. 148 is not gender but need, and that accordingly C.C. 148 is properly interpreted to allow temporary alimony to be awarded to either spouse in need if the other spouse has the means to pay. Alternatively, we would hold that C.C. 119 by itself obliges either undivorced spouse with means to support the other when in need.

Support for the extensive interpretation of C.C. 148 is found in Loyacano v. Loyacano, La.1978, 358 So.2d 304, U.S. appl. pending, in that (as Mr. Justice Dennis notes, in his concurrence on rehearing, id. at 317) three members of the Louisiana Supreme Court adhere to the opinion on original hearing that the permanent alimony law, C.C. 160, despite its phrasing in terms of gender, does not deny alimony to ex-husbands, and that “a Louisiana court may allow alimony to a husband . . . under the same circumstances in which it can be claimed by the wife . . . .” Id. at 309. Support for non-discriminatory pre-divorce alimony from C.C. 119 is found in Hillard, supra, and more recently in Mr. Justice Calogero’s dissent in Williams v. Williams, La.1976, 331 So.2d 438, 442, 443, asserting that C.C. 119 by itself supports pre-divorce alimony for a needy spouse of either sex. Thus a total of four of the present seven justices espouse the view, although for differing reasons, that pre-di-vorce alimony is available to either spouse on the same terms. There is thus no denial of equal protection in the Louisiana law of pre-divorce alimony and that law is not invalidated by U.S.Const. amend. 14.

Writs are therefore refused.

BEER, J., concurring with reasons.

BEER, Judge,

concurring.

In Clary v. Clary, 341 So.2d 628, decided by this court in January of 1977, I concurred with the observation that: “Alimony is not — or should not be — the ‘spoil’ of matrimonial warfare . . .” and took issue with our state’s jurisprudentially imposed preoccupation with fault in determining alimony awards.

Fourteen months later, in Dixon v. Dixon, La.App., 357 So.2d 856 (1978), I concurred again, observing:

“Progress appeared to have been achieved by the codification of Article 141 since it seemed to provide a more realistic approach to the obtaining of separation from bed and board. However, its usefulness is frustrated by the inclusion of an automatic mutual fault determination. While correctly acknowledging that many separations are the result of mutual failure on the part of husband and wife, the article requires absolute, unequivocal and irrevocable disallowance of alimony when it (the article) is used as the basis for obtaining a judgment of separation. Parties to a wretchedly unhappy marriage, each of whom honestly acknowledges their own failings, must be reluctant to invoke Article 141 because of its absolute fault finding provision. Thus, except for shortening the time requirements, Article 141 is not really much of an improvement over the ordinary abandonment type separation suit.
I believe that the underlying problem results from preoccupation with fault determination concurrent with judgment rendition in domestic relations cases. I question the usefulness and validity of those decisions which have generated such preoccupation.”

Eight months later, in Rittiner v. Sinclair (Rittiner) (number 9421 on the docket of this court, handed down on November 2, 1978), I observed:

“We continue to be preoccupied with ‘fault’ (which Webster defines as a moral weakness less serious than a vice), and that preoccupation continues — more often than not — to result in knee jerk determinations of ‘mutual fault.’
It is an oversimplification to say that a marriage of 25 or 30 years which has gone stale, with resulting degrees of disappointment, contempt, disgust and, finally, abhorrence on the part of the parties, is the result of ‘mutual fault’ to the extent that such determination absolutely preempts any consideration of alimony. Unless one or the other of the parties has conducted himself or herself in a totally abhorrent and classically unacceptable way, the determination of an award of permanent alimony should not be irre-buttably preempted on a premise of such a disjointed, nebulous concept as ‘mutual fault.’ What is, in most cases, nothing more or less than mutual disillusionment should not summarily deprive either party of their justiciable right to seek alimony.” (Emphasis mine.)

Thus, for over two years, I have questioned the jurisprudential treatment of the alimony issue in the courts of our state— not from the standpoint of equal protection but from the standpoint of realism and common sense, believing strongly that the central guideline should be need — instead of fault (or gender).

I concur in the result reached here by the majority and look forward to the day when alimony awards will be based primarily on need as shown by the particular circumstances of each particular case.

      . If the wife has not a sufficient income for her maintenance pending the suit for separation from bed and board or for divorce, the judge shall allow her, whether she appears as plaintiff or defendant, a sum for her support, proportioned to her needs and to the means of her husband.

      . Laws in pari materia, or upon the same subject matter, must be construed with a reference to each other; what is clear in one statute may be called in aid to explain what is doubtful in another.

      .In all civil matters, where there is no express law, the judge is bound to proceed and decide according to equity. To decide equitably, an appeal is to be made to natural law and reason, or received usages, where positive law is silent.


author: LEMMON, Judge,

text:
    Suzanne WEXLER wife of/and Nathan Wexler, M.D. v. Austin MARTIN et al.
    No. 9612.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 13, 1979.
   LEMMON, Judge,

concurring in denial of the Application for Rehearing and assigning reasons.

The issue of whether the amount of the judgment may exceed the amount of the demand for general damages was decided primarily on the basis that there is no positive law which requires the petition to state the amount of the demand for such damages. I here point out belatedly that there is much justification for a positive law (which is undoubtedly a legislative function) prohibiting the petition from stating any amount in estimation' of general damages.

It is generally recognized that the amount specified in the petition’s demand for general damages almost never represents a realistic estimation of the claimant’s damages. The amount is generally so grossly overstated (probably due to caution made necessary by pre-Code of Civil Procedure decisions which limited recovery to the stated amount) that this has become a laughing matter to practicing attorneys. However, the average litigant, who is unfamiliar with judicial proceedings, does not consider it a laughing matter when he is served with a petition asserting a vastly inflated demand. This practice has become such a source of fear and scorn that the legal profession and judicial system has suffered greatly.

On the other hand, an individual who is served with a petition demanding an unstated amount for a specifically stated injury will be more likely to look upon the system with respect and trust that the case will be decided fairly by the judge or jury.

Another problem with requiring or allowing the petition to state an estimate of the amount of general damages is that this figure is often revealed to the jury in questioning or in argument, although the claimant’s estimate of the amount of his general damages is totally irrelevant to the jury’s determination of the amount of those damages. In the present case, for example, the defendant argued to the jury that plaintiff did not think too much of her own claim because she originally demanded only $20,-000.00.

The problem with revealing irrelevant matter to the jury is that it may appear to prove something it does not in fact tend to prove. The claimant’s estimate of the amount of his general damages has no probative value whatsoever, and since reference to the estimate may appear to the jury to have some probative value (especially when the estimate is written in an official paper filed in the court record), the estimate may prejudicially influence the jury.

This brings us back to the original question — what is the value of requiring a claimant to estimate the amount of his general damages? The answer appears to be— none.

      . If a specific assertion of the amount of general damages is required or allowed as to provide the defendant with notice of the maximum amount in controversy, disclosure of the amount to the jury should be prohibited. 5 Wright & Miller, Federal Practice and Procedure § 1259 (1969).


text:
    Luther VIVERETTE v. STATE of Mississippi.
    No. 51080.
    Supreme Court of Mississippi.
    March 14, 1979.
    Rehearing Denied April 18, 1979.
    Thomas D. Lee, Forest, for appellant.
    A. F. Summer, Atty. Gen. by Carolyn B. Mills, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before PATTERSON, C. J., and WALKER and BROOM, JJ.
   AFFIRMED.

SMITH and ROBERTSON, P. JJ., and SUGG, BOWLING and COFER, JJ., concur.

LEE, J., took no part.


author: PATTERSON, Chief Justice,

text:
    Johnny OVERSTREET v. STATE of Mississippi.
    No. 51004.
    Supreme Court of Mississippi.
    March 28, 1979.

      H. W. “Sonny” Jones, Meridian, for appellant.
    A. F. Summer, Atty. Gen. by Phillip H. Schwartz, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before PATTERSON, BROOM and BOWLING, JJ.
   PATTERSON, Chief Justice,

for the Court:

Johnny Overstreet was indicted in Laud-erdale County on November 30, 1977, for the murder of Robert Abernathy. He was convicted and sentenced to life imprisonment. Aggrieved he appeals.

On the evening of November 19, 1977, Overstreet was refreshing himself in the Paradise Club in the city of Meridian when Abernathy entered in pursuit of his mistress’s daughter, Shirley, who was reported to be in the club. Overstreet and Abernathy exchanged a few words when Over-street admonished Abernathy that he should be careful in punishing the children of others. Abernathy departed the club to deliver some beer to the Brooks Royal Inn, a nearby cafe. While unloading the beer from his automobile, Overstreet appeared and fired several times at Abernathy. One bullet entered Abernathy’s back, causing his death.

Mildred Burrage Abernathy, deceased’s mistress, and Jeannette Burrage, her daughter, identified Overstreet as the assailant and gave direct testimony of their observance of him firing the pistol that killed Abernathy. Other witnesses testified that Overstreet, following the verbal altercation with Abernathy, left the club and departed in an opposite direction from Abernathy and thus could not have been the person who shot Abernathy. This conflict in evidence was resolved contrary to Over-street.

On appeal Overstreet contends the Mississippi Uniform Criminal Rules of Circuit Court Practice, section 4.06, pages 49-50 (1977) and Tenth Circuit Rule No. 6, the district in which the trial occurred, entitle a criminal defendant to a bill of particulars. We reject this argument because a bill of particulars usurps the function of an indictment in setting out the nature of the charged offense. Westbrooks v. State, 76 Miss. 710, 25 So. 491 (1899).

The trial court conducted a hearing on a motion of the defendant to produce. At this hearing on January 25, 1978, a voluntary statement from Jeannette Burrage, several police reports and documents were provided to the defendant. Additionally, the state offered to make available to the defendant for examination the pistols, a bloody shirt and photographs. A list of twelve potential state’s witnesses was read into the record as was a statement that there was a possibility that a pathologist might be called. We conclude, as we think we must, that appellant’s argument that the state failed to comply with the production order is without merit. Tapp v. State, 347 So.2d 974 (Miss.1977); Boyd v. State, 253 Miss. 98, 175 So.2d 132 (1965); and McDaniel v. State, 191 Miss. 854, 4 So.2d 355 (1941).

The appellant further ascribes as error the introduction of bloody items of the decedent’s clothing as irrelevant and inflammatory. We have recently held a presumption of reversible error is created by the introduction of evidence inflammatory in nature, but that the presumption can be negated when it can be said with confidence that no harmful effect resulted. Tudor v. State, 299 So.2d 682 (Miss.1974). However, the balancing of inflammatory characteristics versus probative value is logically dependent upon the relevancy of the evidence. In Voyles v. State, 362 So.2d 1236 (Miss.1978), we stated:

In the first place, we do not find that the photographs are such that a jury would be influenced or prejudiced by an inspection of what is shown. They merely confirm the testimony of witness West as to the contents of the blanket immediately after taking them from the water. In the second place, each picture shows a positive item of evidence necessary to establish the identity of the body and each photograph is an important piece of affirmative evidence. Hence, the court’s allowing such photographs to be admitted into evidence cannot be reversible error in this case.

(362 So.2d at 1242)

The above rationale permeates the case. The morbid evidence complained of does confirm the testimony of Jim Edwards, a lay coroner, as to the cause of death and the path of the projectile producing death.

The appellant next maintains the admission of testimony from Mildred Bur-rage Abernathy was reversible error because her name was not produced at the hearing conducted on January 25. Over-street contends this was tantamount to a concealment of the witness which was prejudicial to him and violative of his right to a fair trial as set forth in McCray v. State, 293 So.2d 807 (Miss.1974). We disagree. The record reveals the state was not aware that the witness would testify for it until several days before the trial and this availability was made known to the defendant at least two days before the trial. Previously both the prosecution and the defendant had conducted interviews with her and both were forewarned of her reluctance, if not belligerence, to giving testimony. From these circumstances if is our opinion the defense was not surprised and thereby prejudiced by the appearance of Mildred Bur-rage Abernathy as a witness. Moreover, her testimony is quite similar to that of Jeannette, the other eyewitness, which to a degree minimizes the element of surprise from her testimony. The admission of her testimony was largely within the bounds of the trial court’s discretion which we do not think was abused. Armstrong v. State, 214 So.2d 589 (Miss.1968).

Overstreet contends a mistrial should have been granted because of the district attorney’s frequent objections to defense counsel’s questioning of Mildred Bur-rage Abernathy. Our review indicates that a patient trial judge acted properly in calming a heated colloquy between opposing counsel and that no prejudice resulted to the appellant from it. We therefore think this assignment of error is without merit.

In conclusion, the record reveals ample evidence to support Overstreet’s conviction and that he was accorded due process of law. We therefore affirm the sentence and judgment entered in the trial below.

AFFIRMED.

SMITH and ROBERTSON, P. J., and SUGG, WALKER, BROOM, LEE, BOWLING and COFER, JJ., concur.


text:
    Tommy HOWELL v. STATE of Mississippi.
    No. 51127.
    Supreme Court of Mississippi.
    March 28, 1979.
    Rehearing Denied April 18, 1979.
    Robert N. Brooks, Carthage, for appellant.
    A. F. Summer, Atty. Gen. by Calvin Coolidge Williams, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before PATTERSON, C. J., and BROOM and BOWLING, JJ.
   Appeal from Circuit Court, Leake County; Marcus D. Gordon, Judge.

AFFIRMED.


text:
    LEFLORE COUNTY, Mississippi v. BIG SAND DRAINAGE DISTRICT.
    No. 51085.
    Supreme Court of Mississippi.
    April 4, 1979.
    Fraiser, Burgoon, Henson & Abraham, James W. Burgoon, Jr., Greenwood, for appellant.
    Kimbrough, Kimbrough & McLean, G. Hite McLean, Greenwood, for appellee.
    Before SMITH, P. J., and SUGG and COFER, JJ.
   Appeal from Circuit Court, Leflore County; Arthur B. Clark, Judge.

APPEAL DISMISSED AND REMANDED TO THE CIRCUIT COURT.

PATTERSON, C. J., ROBERTSON, P. J., and WALKER, BROOM, LEE and BOWLING, JJ., concur.


text:
    In the Matter of Classification of Sixteenth Section School Lands Scott County, Mississippi, Leased to John H. JONES.
    No. 51063.
    Supreme Court of Mississippi.
    April 4, 1979.
    A. F. Summer, Atty. Gen. by William James Cole, III, Asst. Atty. Gen., Jackson, for appellant.
    Thomas D. Lee, Forest, for appellee.
    Before SMITH, P. J., and SUGG and COFER, JJ.
   Appeal from Chancery Court, Scott County; Osborn Guyton Idom, Chancellor.

MODIFIED AS TO ADJUDICATION OF COMPENSATION TO APPELLEE, AND AFFIRMED AS MODIFIED.

PATTERSON, C. J., ROBERTSON, P. J., and WALKER, BROOM and BOWLING, JJ., concur.

LEE, J., took no part.


text:
    Earnest JOHNSON v. STATE of Mississippi.
    No. 51268.
    Supreme Court of Mississippi.
    April 4, 1979.
    Sidney J. Martin; John C. Webb, Green-ville, for appellant.
    A. F. Summer, Atty. Gen., by Carolyn B. Mills, Special Asst. Atty. Gen., Jackson, for appellee.
    Before ROBERTSON, P. J., and WALKER and LEE, JJ.
   Appeal from Circuit Court, Washington County; B. B. Wilkes, Judge.

AFFIRMED.

PATTERSON, C. J., SMITH, P. J., and SUGG, BROOM, BOWLING and COFER, JJ., concur.


text:
    IMPERIAL HEATING & AIR CONDITIONING, INC. and David C. Moore v. MISSISSIPPI STATE TAX COMMISSION.
    No. 51096.
    Supreme Court of Mississippi.
    April 4, 1979.
    Taylor, Whitwell & Goeldner, Christian T. Goeldner, Southaven, for appellants.
    James H. Haddock, Joe D. Gallaspy, William N. Lovelady, Jr., Jackson, for appellee.
    Before ROBERTSON, P. J., and WALKER, and LEE, JJ.
   Appeal from Chancery Court, DeSoto County; Kermit R. Cofer, Chancellor.

AFFIRMED.

COFER, J., took no part.


text:
    Melvin HUNTER, Jr. v. STATE of Mississippi.
    No. 51099.
    Supreme Court of Mississippi.
    April 4, 1979.
    Percy Stanfield, Jr., Stanfield, Holder-field, Brown & Hall, Jackson, for appellant.
    A. F. Summer, Atty. Gen. by Robert D. Findley, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before SMITH, P. J., and SUGG and COFER, JJ.
   Appeal from Circuit Court, Hinds County; Charles T. Barber, Judge.

AFFIRMED.

PATTERSON, C. J., ROBERTSON, P. J., and WALKER, BROOM, LEE and BOWLING, JJ., concur.


text:
    W. E. TRAYWICK v. STATE of Mississippi.
    No. 50966.
    Supreme Court of Mississippi.
    April 4, 1979.
    Horan & Horan, Ben F. Horan, Water Valley, for appellant.
    A. F. Summer, Atty. Gen. by Calvin Coolidge Williams, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before ROBERTSON, P. J., and WALKER and LEE, JJ.
   Appeal from Circuit Court, Tallahatchie County; Dick R. Thomas, Judge.

AFFIRMED.

PATTERSON, C. J., SMITH, P. J., and SUGG, BROOM and BOWLING, JJ., concur.

COFER, J., took no part.


text:
    Marie A. ROSTAN v. City of JACKSON.
    No. 51100.
    Supreme Court of Mississippi.
    April 4, 1979.
    James G. McIntyre, Jackson, for appellant.
    Davis Hall Smith, Jackson, for appellee.
    Before ROBERTSON, P. J., and WALKER and LEE, JJ.
   Appeal from Circuit Court, Hinds County; Dan M. Lee, Judge.

AFFIRMED.


author: FAULKNER, Justice. TORBERT, Chief Justice

text:
    The CITY OF SELMA, a Municipal Corporation v. The UNITED STATES of America et al.
    CER-16.
    Supreme Court of Alabama.
    March 23, 1979.
    John W. Kelly, III and Stanley B. Sikes for Sikes, Kelly, Edwards & Bryant, Selma, for plaintiff.
    William E. Hill, Washington, D. C., W. A. Kimbrough, U. S. Atty., Mobile, for the United States of America, et al., federal defendants.
    Joe T. Pilcher, Jr., Selma, for defendant, Craig Field Airport and Industrial Authori-a Public Corp.
   FAULKNER, Justice.

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

The complaint and exhibits to the complaint referred to in the certificate are not made a part of this opinion.

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

“1. THE STYLE OF THE CASE:
THE CITY OF SELMA, a municipal corporation,
Plaintiff,
V. CIVIL ACTION
THE UNITED STATES OF AMERICA: No. 78-447-P HAROLD BROWN, in his capacity as Secretary of the Department of Defense; JOHN C. STETSON, in his capacity as Secretary of the United States Air Force; PATRICIA HARRIS, in her capacity as Secretary of the Department of Housing and Urban Development; BROCK ADAMS in his capacity as Secretary of the Department of Transportation; JOSEPH A. CALIFANO, JR., in his capacity as Secretary of the Department of Health, Education and Welfare; CECIL ANDRUS, in his capacity as Secretary of the Department of Interior; JAY SOLOMON, in his capacity as Administrator of the General Services Administration; and, CRAIG FIELD AIRPORT AND INDUSTRIAL AUTHORITY, a public corporation,
Defendants.
“2. STATEMENT OF FACTS.
“The City of Selma, Alabama, a municipal corporation, is the plaintiff in an action pending in the Southern District of Alabama against the United States in Case Number 78-447-P. The Complaint and those exhibits attached thereto which are referred to herein are filed herewith and made a part hereof.
.“In 1940 the United States acquired a leasehold interest in real property located ’in Dallas County, Alabama, for the purpose of operating a military establishment known as Craig Army Air Field. The City of Selma had acquired these lands through purchase and the exercise of the right of eminent domain. The City then leased said lands to the United States.
“Subsequent to the execution of the lease agreement, there were negotiations between the City of Selma and the United States relative to a donation of the lands to the United States without consideration. However, by opinion dated September 4, 1941, the Acting Attorney General of the United States advised the War Department that the City of Selma had no authority under its charter and under Alabama law to convey the subject property to the United States by donation deed.
“In 1947 the City of Selma secured passage of Act 509 (House Bill 926) of the Alabama Legislature, the form for which had been furnished by representatives of the United States. (Exhibit E to the Complaint).
“Pursuant to Act 509 (House Bill 926) and pursuant to resolution of the City Council of the City of Selma, dated June 14, 1948, the City of Selma entered into an option agreement with the United States to sell said lands to the United States for the consideration of One and 00/100 ($1.00) Dollars. (Exhibit F to the Complaint.) Said option agreement specifically provided for a right of reversion.
“On October 25, 1948, the City Council of the City of Selma authorized and empowered the City of Selma to execute a Quit Claim Deed to the United States of the lands included in said Option. (Exhibit G to the Complaint.) By Quit Claim Deed dated October 26, 1948, (Exhibit H to the Complaint) the City of Selma conveyed said lands to the United States for a recited consideration of One and 00/100 ($1.00) Dollars, which deed contained the following reversionary clause:
“ ‘. . . the fee simple title hereby conveyed in and to the hereinafter described property shall automatically revert to the City of Selma in the event the United States of America at any time in the future determines the said lands to be surplus to its military needs and permanently abandons the airfield as a military air base, . . . .’
“On October 2, 1950, the City Council of the City of Selma passed another resolution authorizing the City to execute another deed ‘with covenants of warranty’ upon payment of One and 00/100 ($1.00) Dollars, cash consideration, a copy of said resolution being attached to this stipulation as Exhibit 1. (This resolution was intended to be a part of Exhibit I to the Complaint, but was inadvertently omitted.) Pursuant to that resolution on October 7, 1950, the City of Selma conveyed said lands to the United States by Warranty Deed containing no reversion clause. (Exhibit I to the Complaint.) (All exhibits including ‘1’ attached to the complaint herein.)
“The conveyance from the City of Selma dated October 7, 1950, purported to be authorized by Act 509 (House Bill 926) (Exhibit E to the Complaint). There was no other statutory authorization under the laws of the State of Alabama for said conveyance other than Act 509 (House Bill 926).
“The United States declared Craig Air Force Base (formerly Craig Army Air Field), to be surplus property on November 1, 1977, and discontinued its use as a military airbase and, except for the deed of October 7, 1950, the reversion clause in the 1948 deed would be operative.
“3. THE QUESTION OF LAW TO BE ANSWERED.
“Did the City of Selma have the authority to execute the second deed of October 7, 1950, without additional authority of the legislature since it had on October 26,1948, already executed pursuant to said Act 509 (House Bill 926) a Quit Claim Deed with reversion clause, evidencing the governing body’s determination that a reversion clause upon discontinuance of military use of said land by the United States was deemed wise?
“This certificate has been prepared by said federal court.”
Act 509, Acts of Alabama 1947, p. 345, provides:
“Section 1. That the City of Selma, Alabama, be and it is hereby authorized and empowered to convey for a nominal consideration to the United States of America the area of land in Dallas County, Alabama known as ‘Craig Army Air Field’, by fee simple deed, (or by deed with reversion clause, on discontinuance of the use thereof for military purposes by the United States of America) as the governing body of said City of Selma, Alabama may deem wise, together with the rights of way and easements for sewerage disposal purposes, now owned by the said City of Selma, Alabama.
“Section 2. That such deed as herein authorized shall be executed on proper resolution of the governing body of the City of Selma, Alabama, by the officer or officers designated in such resolution.
“Section 3. That this Act shall be effective immediately upon its approval by the Governor of the State of Alabama.
“Approved September 30, 1947.”
The parties stipulated that “[t]here was no other statutory authorization under the laws of the State of Alabama for the City to execute the October 7, 1950 deed, other than Act 509 (House Bill 926).”
We are of the opinion that the City of Selma did not have the authority to execute the second deed dated October 7,1950. Under the Act, the City had the authority to execute only one deed. We opine that the intent of the legislature was to that effect. Surely the legislature did not intend to grant authority to execute more than one deed to accomplish only one purpose. But, even if there were any reasonable doubt about Selma having authority to execute a second deed, a strict construction of the Act requires that doubt be resolved against Selma.

In City of Tuskegee v. Sharpe, 292 Ala. 14, 288 So.2d 122 (1973), this Court, quoting State v. Homan, 38 Ala.App. 642, 92 So.2d 51 (1957), stated the rule of strict construction:

“A town is a municipal corporation with limited territory and powers. It exists only under and within its charter, viz., statutes. Its subsidiary legislation and other assertions of authority are entirely dependent upon statutory predicates. In Alabama there is no general, inherent right of local self government, Yeilding v. State, 232 Ala. 292, 167 So. 580. And (unlike the rules in respect of private corporations and the Federal Government) in construing the grant of a power the rule of strict construction applies so that if there is reasonable doubt concerning the existence of the power the doubt should be resolved against the asserted power. Dillon, Municipal Corporations 2d Ed., Vol. 1, Section 55.”

Our answer to the Certified Question is in the negative. The City of Selma could not, without additional authority, execute the October 7, 1950, deed. Having executed a deed on October 26, 1948, pursuant to Act 509, Selma’s authority under the Act was exhausted; consequently, the October 7, 1950, deed is void and without legal effect.

QUESTION ANSWERED.

BLOODWORTH, JONES, ALMON, SHORES, EMBRY and BEATTY, JJ., concur.

TORBERT, C. J., and MADDOX, J., dissent.

TORBERT, Chief Justice

(dissenting):

I respectfully dissent.

The majority relies upon City of Tuskegee v. Sharpe, 292 41a. 14, 288 So.2d 122 (1973), for the proposition that in construing a grant of power to a municipality, the rule of strict construction applies so that if there is a reasonable doubt as to the existence of the power, the doubt should be resolved against the asserted power. The majority then concludes that if a reasonable doubt existed as to Selma’s power to execute the second deed, the doubt must be resolved against such execution. However, the issue presented in Tuskegee was whether Act No. 843, 1953 Acts, empowering a city to convey real property also granted to the city the power to enter into an option contract to sell real property owned by it. Id. 292 Ala. at 18, 288 So.2d 125.

Act No. 843 provided in pertinent part as follows:

AN ACT

Relating to the powers of municipalities: to authorize the governing body of any city or town to alienate municipal property which is not needed for public or municipal purposes.

Be It Enacted by the Legislature of Alabama:

Section 1. The governing body of any city or town in this state may, by ordinance to be entered on its minutes, direct the disposal of any real property, not needed for public or municipal purposes, and direct the mayor to make title thereto; and a conveyance made by the mayor in accordance with such ordinance invests the grantee with the title of the municipality.

The court stated that an option is not a sale of land nor an agreement to sell land; it is only the right or privilege to buy within a certain period of time at a certain price. The court stated:

Granting to another an option to purchase land owned by the city is not an alienation of the land. Such an option is not a disposition of the property. The option is “neither a sale nor an agreement to sell ... . ” The owner parts with his right to sell, except to the op-tionee at his election, for a period. The option is not a contract of sale.

292 Ala. at 26-27, 288 So.2d at 133-34.

Therefore, the court found that an option is not a sale, conveyance, or disposition of property, and the court concluded that an option, by its nature, was not within the power granted to the city by the act. Accordingly, the city was not granted the power to give an option.

In the instant case, Selma was granted the power to convey its entire interest by fee simple deed. Expressly included within this power was the alternative of conveying less than full title (retaining a reversion). Therefore, this is not a situation, as in Tuskegee, where the municipality was not granted the power exercised. Only the mode or manner of exercising the power is questioned. Thus, the rule of strict construction as announced in Tuskegee is inapplicable because the legislature granted the power to convey fee simple title. The problem, then, becomes one of statutory construction to determine legislative intent.

The legislature intended to grant Selma the power to execute a fee simple deed conveying full title. It also parenthetically authorized the city to convey less than full title in its discretion and to retain a reversion. The essence of the problem is not how many conveyances were authorized, but what power, or more specifically, what interest was Selma empowered to convey? The answer is that it was expressly empowered to convey full title which it ultimately did.

I would hold that the execution of the first deed conveying less than full title did not exhaust Selma’s power to convey full title to the property should it see fit to do so. Accordingly, I would uphold the validity of the second deed.

MADDOX, J., concurs.


author: HOLMES, Judge.

text:
    SHELBY MUTUAL INSURANCE CO. OF SHELBY, OHIO v. Starling S. RALSTON.
    Civ. 1620.
    Court of Civil Appeals of Alabama.
    March 28, 1979.
    W. Lee Pittman, Birmingham, for appellant.
    Robert B. Roden of Jones, Arnold & Ro-den, Birmingham, for appellee.
   HOLMES, Judge.

This is an action on an insurance policy.

The plaintiff filed suit against the defendant insurance company claiming damage to property insured under a home owner’s policy. After an ore tenus hearing, the trial court rendered judgment for the plaintiff. After the trial court overruled defendant’s post trial motions, defendant appealed.

The dispositive issue on appeal is whether the trial court erred in excluding evidence of a prior conviction of the plaintiff for attempted false pretenses.

The record of the proceeding below reveals the following: On August 10, 1975, the defendant issued a policy of insurance which covered plaintiff’s personal property and household effects for a term of one year. While the insurance was in force, the insured property was apparently vandalized and/or stolen.

The plaintiff sought $16,000 in proceeds under the policy and filed a proof of loss. The defendant, after investigating the claim, denied liability.

The defendant’s denial of liability was premised on its contention that the plaintiff had fraudulently claimed proceeds under the policy. By virtue of the terms of the contract, which void coverage when the insured attempts to defraud the insurer, the defendant argued that the plaintiff was not entitled to recover.

At trial, the defendant attempted to prove, in essence, that the plaintiff sought to recover policy proceeds for property which he in fact did not own.

The record indicates that in its proof that plaintiff had attempted to defraud the defendant, the defendant offered into evidence a certified copy of plaintiff’s recent conviction, i. e., 1977, for attempted false pretenses. This evidence was offered as relevant proof on the issue of whether the defendant had the requisite intent to misrepresent material facts for pecuniary gain in this instance.

The trial court excluded the evidence for the reason that a conviction for attempted false pretenses does not appear under Alabama law to be an offense of moral turpitude admissible to impeach the plaintiff’s veracity. As set forth below, evidence of the prior conviction should have been admitted, not for the purpose of impeachment, but as relevant evidence tending to show that the plaintiff intended to defraud the insurer of policy proceeds in this instance.

At the outset we observe that the element of intent to defraud is common to the crimes of false pretenses and attempted false pretenses. See, e. g., Taylor v. State, 46 Ala.App. 105, 238 So.2d 902 (1970), and Broadway v. State, 36 Ala.App. 542, 60 So.2d 697 (1952).

With respect to crimes in which an element of intent must be proven, such as false pretenses, it is well settled that prior convictions of the crime are admissible as relevant to establish the accused’s requisite intent to defraud on the occasion in question. Gamble, McElroy’s Alabama Evidence § 70.01(10) (3rd ed. 1977); Wigmore On Evidence § 321 (3rd ed. 1940). This rule applies equally well in civil cases. Wig-more, supra, §§ 321, 371; McCormick On Evidence § 197 (2d ed. 1972).

In Alabama, in civil cases, evidence of other proven contemporaneous fraudulent transactions by the same party, of the same character, are admissible to show fraud in a transaction wholly distinct from the previous transaction. Great American Ins. Co. v. Dover, 221 Ala. 612, 130 So. 335 (1930). See also Roan v. Smith, 272 Ala. 538, 133 So.2d 224 (1961).

Our cases hold that other fraudulent transactions must be proven to be admissible; mere rumor of fraud on the part of the defendant will not suffice as admissible evidence. Great American, supra. Nothing could be further from rumor and speculation than a previous proven occurrence of the defendant’s intent to defraud as established by a criminal conviction for attempted fraud. Williams v. United States, 199 F.2d 921 (5th Cir. 1952).

In Williams, supra, the court held that evidence of the defendant’s prior convictions for fraud were admissible as relevant evidence of the defendant’s intent to commit civil fraud in the case before the court. In so holding, the court stated:

It is urged that the documentary evidence was inadmissible and should have been excluded, because generally evidence of other offenses is not competent to prove the offense charged, especially where such previous offenses are remote in time to the one charged. The rule contended for does not obtain in civil suits where the question to be decided is intent to defraud. In a case such as this the test as to the admission of evidence of other transactions is not whether such other transactions were criminal, but is whether the evidence is relevant to the issue on trial. The issue on [the former] trial involved the intent of the parties to violate the Internal Revenue Laws. The questioned evidence is relevant to illustrate the motive or intent of the parties on the occasion in question. The trial Court carefully instructed the jury that its consideration of this evidence should be limited to that specific purpose. The Court did not err in permitting the exhibit of the evidence and submitting it to the jury under proper instructions. . . . ” (Emphasis supplied.) 199 F.2d at 922.

We find the reasoning in Williams compelling.

In the instant case, the plaintiff’s prior conviction for attempted false pretenses was highly relevant to the issue of whether he had the requisite state of mind to defraud his insurer in this instance. The crime was an act of the same character; it was not an act of fraud remote in time, nor was it a fraudulent act based on mere rumor or speculation. Thus, it was probative, going to the very core of the defendant’s case and should not have been excluded.

For the foregoing reasons, the case must be reversed. In view of the above, it would be inappropriate for this court to comment on other issues raised by the defendant-insurance company.

REVERSED AND REMANDED.

WRIGHT, P. J., and BRADLEY, J., concur.


text:
    James F. RATLIFF, Sr. v. Thursa RATLIFF.
    Civ. 1624.
    Court of Civil Appeals of Alabama.
    March 28, 1979.
    Robert Sellers Smith, Huntsville, for appellant.
    F. E. St. John, Jr. of St. John & St. John, Cullman, for appellee.
   HOLMES, Judge.

The Circuit Court of Cullman County, after an ore tenus hearing, found the husband owed the wife $5,015.44 under a decree of divorce. The husband appeals and we affirm.

The dispositive issue is whether the decree of divorce and the evidence support the trial court’s conclusion that the husband owes the wife $5,015.44 under the terms of the divorce decree. As indicated, we find the trial court’s finding to be so supported.

The parties were divorced in 1968. An agreement entered into by the parties regarding support was incorporated into the divorce decree. In pertinent part this agreement provided as follows:

The wife is the owner of a life insurance policy No. 833110 on the life of the husband in the principal sum of Fifty Thousand ($50,000.00) Dollars with a supplementary agreement, dated 1/3/64, covering additional indemnity for death by accidental means in the sum of Fifty Thousand ($50,000.00) Dollars and also disability and also an agreement for level term insurance in the amount of Thirty Six Thousand ($36,000.00) Dollars, the premium for all of which is Two Thousand Four Hundred Eighty Four and 54/100 ($2,484.54) Dollars annually, which the husband agrees to pay as the same becomes due as additional alimony to the wife under the same terms and conditions as set forth relating to the payment of alimony in paragraph 3 hereof.

Thereafter in 1978, the wife filed with the trial court what is styled a “Citation For Contempt.” She alleged that the husband was in arrears in his alimony and that he failed to provide the necessary health insurance for the wife. Additionally, the wife alleged, in regard to the insurance policy No. 833110 referred to hereinabove, that the husband had failed to pay the premiums as required; that in view of his failure to pay the premiums, the premiums were paid by the policy reserves; that she had been forced to convert the policy into cash, and that the husband was therefore indebted to her.

It was stipulated at trial that the husband was in arrears regarding alimony and that he had failed to provide the necessary health insurance. It was further stipulated that the trial court would determine the “equities” between the parties regarding insurance policy No. 833110.

The trial court found that the aforesaid insurance policy was a part of the “alimony agreement” between the parties. The following are additional pertinent findings by the trial court:

The parties were divorced on March 16, 1968 and at the present time Mrs. Ratliff is 57 years of age and Mr. Ratliff is 64 years of age. The parties had a lengthy agreement in the file dividing their extensive real and personal property holdings that further provided alimony to be paid by the plaintiff to the defendant in the amount of $300.00 per month.
The defendant is now in involuntary bankruptcy without discharge and the referee has allowed this action to proceed in this court as shown by plaintiff’s Exhibits 5 and 6 filed therein.
This Court holds from all the evidence that the insurance policy was a part of the alimony agreement entered into by the parties.
Mr. Ratliff directed that premium loans be paid from the cash reserves in the policy as shown by the evidence in the total amount of $2,057.72 when he should have been making the premium payments in this amount from his own assets and thereby he deprived Mrs. Ratliff of twice this amount, first by reducing the cash reserve in the policy and then by not paying himself the premiums in the same amount on the policy.
There was evidence before the Court that the cash value of the policy, with withdrawals, would have been $17,068.00, enough to have paid premiums for about IOV2 years on a $50,000.00 whole life insurance policy with annual premiums of $1,168.00, which all would have occurred as shown by the evidence on January 3, 1979.
Mrs. Ratliff withdrew from the cash reserves of the policy on Loan $5,000.00 and she did not replace this amount and then Mrs. Ratliff cancelled the policy and received cash surrender value of $7,200.00 on February 1, 1978. This Court is faced now with doing equity between the parties on the cash surrender value of the policy, and is foreclosed to pursue remedies if she had taken any other course of action or had done nothing.

The trial court with the above in mind then entered the following:

Judgment is entered for the plaintiff, Thursa Ratliff, and against the defendant, James F. Ratliff, for $5,015.44 as alimony on the insurance policy, this amount being twice the automatic premium loans on direction of the defendant depleting the cash reserves of the policy and depriving the plaintiff of the amount that the defendant should have paid as premiums on the policy.

On appeal, the husband contends that the trial court erred when it awarded the wife twice the amount of the premium loans which were made to fund the policy. Specifically, the husband contends that this ar-rearage in alimony, i. e., the unpaid premium loans, was approximately $2,057 and consequently the trial court’s award of $5,015 was unjust in that it is twice the amount of the arrearage which was owed.

At the outset, we note that there is evidence to support the learned trial court’s factual findings. We would further note that it is clear that the payment of the insurance premiums was alimony to the wife. The agreement so states.

It is equally clear that a court of equity in a case such as the instant appeal has power to use any reasonable means to adjust the equities between the parties. 8 Ala.Digest Divorce @=249(1).

While the findings and conclusion, which we have set out in detail, of the learned trial court were not necessarily required, we cannot say that his adjustment of the equities between the parties was so unreasonable as to require reversal. Put another way, this court should not be understood as necessarily agreeing with the learned trial judge’s conclusion that the husband owed “twice” the premiums. We simply find that in view of the husband’s action regarding the insurance policy and the trial court’s duty to interpret the agreement in light of the husband’s default and the trial court’s further duty to adjust the equities, we cannot say the trial court erred to reversal.

If a judgment or decree correctly determines the equity of a case, the reasons on which the trial court proceeded are unimportant and the judgment will be affirmed. See Bryant v. Moss, 295 Ala. 339, 329 So.2d 538 (1976).

The case is due to be affirmed.

AFFIRMED.

WRIGHT, P. J., and BRADLEY, J., concur.


text:
    STATE of Alabama, DEPARTMENT OF INDUSTRIAL RELATIONS v. Lynda J. PRANCE and Nadine Prance.
    Civ. 1678.
    Court of Civil Appeals of Alabama.
    March 28, 1979.

      George C. Cocoris, Gen. Counsel and Frank D. Marsh, Asst. Gen. Counsel, Montgomery, for appellant, State of Ala., Dept, of Indus. Relations.
    David J. Evans, Jr., Boaz, for appellees.
   HOLMES, Judge.

This is an unemployment compensation case.

The Board of Appeals of the Department of Industrial Relations denied the employees’ claim for benefits. Pursuant to Code of Ala.1975 § 25-4-95, the employees appealed to the Circuit Court of Marshall County. After a de novo hearing, the trial court awarded benefits and the Department appealed.

The dispositive issue on appeal is whether the payment of wages by checks drawn on insufficient funds constitutes good cause for voluntarily terminating employment. We hold that it does and affirm.

Viewing the record with the attendant presumption of correctness, we find the following: The employees worked for the Al-bertville Flower Shop between December, 1976 and June, 1977. During this time, each employee received a number of payroll cheeks drawn on insufficient funds.

The record indicates that although the checks would not have been honored by the bank upon which they were drawn, the employees successfully cashed the checks with third parties who subsequently were required to present the instruments to the bank two or more times in order to receive payment.

After more than six months of this practice, the employees terminated their jobs. At the time of the termination, the employees did not inform the employer that the checks were being returned for insufficient funds; however, the record reveals that other employees had, on other occasions, complained to the shop owner concerning the problem. On these occasions, the owner had taken the checks back and paid the employees in cash.

As we noted above, after unsuccessfully claiming benefits, the employees appealed to the circuit court. The trial court, after hearing the foregoing facts, found that the employees had terminated employment for good cause and awarded benefits.

On appeal, the Department contends that the employees are disqualified for benefits because they left employment without good cause. Specifically, it is argued that in situations such as this, an employee must prove that the payroll checks in question are “worthless checks,” as that term is defined in Alabama’s Worthless Check Act, Code of Ala.1975 §§ 13 — 4-110 et seq. in order to constitute reasonable cause for leaving employment. It is further contended that once these employees in fact successfully negotiated the checks for cash to third party merchants, the checks were no longer “worthless” as to them. Thus, it is contended the employees left work without good cause. We disagree.

At the outset, we observe that in order to be eligible for unemployment compensation benefits, § 25-4-78 requires an employee to terminate employment for a reasonable cause, i. e., a cause that is material and substantial under the circumstances. Department of Indus. Relations v. Mann, 35 Ala.App. 505, 50 So.2d 780 (1950), cert. stricken, 255 Ala. 201, 50 So.2d 786 (1951). In determining whether the reason to terminate is sufficient, the applicable test is whether an average or normal worker would have similarly terminated employment under the facts. Ex parte McCleney, 286 Ala. 288, 239 So.2d 311 (1970); Andala Co. v. Ganus, 269 Ala. 571, 115 So.2d 123 (1959).

With respect to the Department’s contention, we are unable to agree that the employee has the burden to prove that the employer violated the criminal provisions of the Worthless Check Act in order that the employee show employment was terminated for good cause.

It is not reasonable for an employee to constantly question whether his payroll check will be honored by the bank upon which it is drawn. More importantly, it is not reasonable for an employee, as an endorser of the instrument, to suffer embarrassment in the event the bank returns the instrument to the merchant who cashes it for the worker. Clearly, where such a situation exists, the worker has a substantial and material reason for terminating employment.

The Department additionally contends that because the employees failed to give the employer notice that the checks were drawn on insufficient funds and the attendant opportunity to remedy the situation, they left employment without good cause. The Department relies upon Stewart v. Department of Indus. Relations, 40 Ala.App. 383, 114 So.2d 274 (1959), as authority for the proposition that notice to remedy an objectionable employment practice must be given before an employee may terminate work for good cause. While there is no doubt that this is the holding in Stewart, the facts in the instant case show that the employer in fact had knowledge that payroll checks were drawn on insufficient funds. As we noted above, other employees had complained of the problem on past occasions and the objectionable practice continued.

For the foregoing reasons, this case is due to be affirmed.

AFFIRMED.

WRIGHT, P. J., and BRADLEY, J., concur.