text:
    Charles R. WATSON, Plaintiff-Appellant, v. G. W. LARY d/b/a G. W. Lary Trucking Company, Pat H. Lazarus and Commercial Union Insurance Company, Defendants-Appellees.
    No. 13255.
    Court of Appeal of Louisiana, Second Circuit.
    May 23, 1977.

      Kitchens, Benton & Kitchens by Paul E. Kitchens, Minden, for plaintiff-appellant.
    Cook, Clark, Egan, Yancey & King by Benjamin C. King, Shreveport, for defendants-appellees.
    Before PRICE, HALL and JONES, JJ.
   HALL, Judge.

Plaintiff’s action for personal injuries arising out of a two-vehicle highway accident was dismissed by the district court on a finding that plaintiff’s negligence contributed to the accident, barring his recovery. Plaintiff appeals and this court affirms.

Plaintiff testified he was driving his employer’s egg truck south on the highway with a school bus followed by a white pickup truck in front of him. He had been following the other vehicles for about a mile and a half at a speed of about 45 miles per hour. The school bus slowed down to turn right and the pickup truck applied its brakes. Plaintiff testified he was about one and one-half car lengths behind the pickup truck and did not think he had time to stop. He put on his left turn blinker light and turned into the left-hand lane. At this point he looked in the rear view mirror and saw the defendant’s truck, also proceeding south, about a quarter of a mile behind him. Plaintiff then decided that he did have time to stop, put on his right turn blinker light and turned back into the right-hand lane. Plaintiff testified he was going very slowly and had almost stopped when he was hit from the rear by the defendant’s truck. Plaintiff did not look in his rear view mirror again or observe the truck in any manner between his initial lane change and the collision.

The defendant’s driver testified he was driving his employer’s eighteen wheeler truck loaded with fertilizer in a southerly direction. As he topped the hill he saw the right turning school bus and two following trucks. He put on his left turn blinker and moved into the left-hand lane and proceeded at a speed of about 45 miles per hour. The driver testified plaintiff made a sudden change of lanes into the left-hand or passing lane and he was unable to avoid striking the rear of plaintiff’s truck.

Plaintiff’s truck ended up overturned in the ditch on the right-hand side of the road.

The trial court, in oral reasons transcribed at the conclusion of the trial, found that plaintiff was negligent in following too close behind the vehicles in front of him and in changing lanes without making proper observation. The trial court also found that the defendant truck driver was negligent in following too close, but denied recovery based on plaintiff’s contributory negligence. The trial court did not make a specific finding as to whether the impact occurred in the left-hand or passing lane as claimed by defendant or in the right-hand lane as claimed by plaintiff.

There is no manifest error in the finding of the trial court. The most reasonable conclusion, particularly in view of plaintiff’s own testimony, is that plaintiff’s negligence in following too close, which made him fearful that he could not stop in time to avoid hitting the truck in front of him and caused him to change lanes, was a contributing cause of the accident. Regardless of which lane the accident happened in, plaintiff’s negligence in following too close and in changing lanes without proper observation was a contributing cause of the accident.

Plaintiff argues that the fact that his truck ended up in the right-hand ditch after the accident supports a finding that the impact occurred in the right-hand lane. The force of the impact could have caused plaintiff’s truck to go right regardless of which lane his automobile was in at the time of the impact.

Plaintiff argues that defendant’s version of the accident could not be correct because of the times and distances involved. Regardless of whether defendant’s version is correct, plaintiff’s own negligence was a contributing cause of the accident.

Plaintiff argues that the defendant truck driver had the last clear chance to avoid the accident. Whether the impact occurred after plaintiff changed to the left-hand lane or after he changed back to the right-hand lane, the evidence does not support a finding that the truck driver had a reasonable opportunity to avoid the collision after plaintiff’s change of lanes.

Plaintiff argues the presumption of negligence on the part of the driver of a vehicle which runs into the rear end of another vehicle. Regardless of this presumption and the negligence of the defendant truck driver, the evidence in this case establishes negligence on the part of plaintiff which also contributed to the accident.

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

Affirmed.


source: Caselaw Access Project

author: PRICE, Judge.

license: Public Domain

text:
    James WARD, Eddie Phillips, Edward Holmes, Robert E. Kimmerle, C. T. Rawls, W. E. McCart, and O. J. Ainsworth, Plaintiffs-Appellants, v. WEST CARROLL PARISH POLICE JURY, Paul J. Hardy, Donald K. Carroll and T. W. Auger, Defendants-Appellees.
    No. 13254.
    Court of Appeal of Louisiana, Second Circuit.
    May 23, 1977.
    En Banc.
    Rehearing Denied June 22, 1977.

      Crawford A. Rose, Jr., Rayville, and Baker, Culpepper & Brunson, by Bobby L. Cul-pepper, Jonesboro, for plaintiffs-appellants.
    Hamilton, Carroll & Miller, by Donald K. Carroll and Orlando N. Hamilton, Jr., Oak Grove, for defendants-appellees.
    Before PRICE, HALL and JONES, JJ.
   PRICE, Judge.

Plaintiffs have appealed the rejection of their demands by the district court to have a local option election in the five wards of West Carroll Parish declared invalid, and the ordinances of the Police Jury prohibiting the sale of alcoholic beverages pursuant to the vote of the electorate annulled.

Pursuant to properly certified petitions, the Police Jury submitted to the electorate in each of the five wards of the parish the following propositions:

(1) Shall the sale of beverages of low alcoholic content containing more than 3.2% alcohol by weight, but not less than 6% by volume, be permitted?
(2) Shall the sale of beverages containing more than lh of 1% of alcohol by volume, but not more than 3.2% alcohol by weight be permitted?
(3) Shall the sale of beverages of high alcoholic content containing more than 6% alcohol by volume for consumption on the premises be permitted?
(4)Shall the sale of beverages of high alcoholic content containing more than 6% alcohol by volume by the package only and not for consumption on the premises be permitted?

The majority vote in all wards was negative on each proposition. Ordinances were adopted prohibiting the sale of all alcoholic beverages in each of the five wards.

Plaintiffs, who are holders of retail liquor licenses, raise the following issues on appeal:

(1) Can the sale of 3.2% beer (proposition two as set forth above) be prohibited?
(2) Is the statute authorizing prohibition of 3.2% beer in certain designated parishes local and special legislation and therefore unconstitutional?
(3) If it is not lawful to prohibit the sale of 3.2% beer, did the inclusion of the proposition relating to its sale along with the other propositions submitted to the voters invalidate the entire election?
(4) Were the elections held tantamount to a parish-wide election contrary to law and thus invalid?

Issues (1), (2), and (3) as stated above were decided by the Third Circuit recently in upholding the validity of local option elections in Vernon Parish which were attacked on the same basis, on which appellants seek relief in this action. Wyatt v. Vernon Parish Police Jury, 341 So.2d 468 (La.App. 3rd Cir. 1977), writ denied 342 So.2d 677 (La.1977). As we concur in the conclusions reached in Wyatt and for the same reasons expressed by the court in that opinion, we hold that the submission of the proposition to determine whether the sale of 3.2% beer should be permitted in each ward was valid.

The remaining issue concerns whether the calling of an election in the entire five wards of the parish on the same date constitutes a parish-wide referendum as prohibited by LSA-R.S. 26:582 and the jurisprudence interpreting this section. See State v. Wright, 305 So.2d 406 (La.1974).

The petitions requesting the calling of the election were circulated separately for each ward, and a separate ordinance was adopted by the Police Jury appropriately calling for separate elections and tabulations for each of the five wards and the municipalities situated therein. This is in accord with the provisions of the local option statute and is not violative of LSA-R.S. 26:582. The prohibition of that section of the statute envisions an election called on a parish-wide basis with a single tabulation of votes binding on the parish as a whole. This conclusion is also supported by our decision in Smith v. Lincoln Parish Police Jury, 327 So.2d 641 (La.App. 2nd Cir. 1976).

For the reasons assigned, the judgment is affirmed at appellants’ costs.


author: MARVIN, Judge.

text:
    James GREER, Plaintiff-Appellant, v. CONTINENTAL CASUALTY COMPANY et al., Defendant-Appellee.
    No. 13256.
    Court of Appeal of Louisiana, Second Circuit.
    May 23, 1977.
    James D. Sparks, Monroe, for plaintiff-appellant.
    Hudson, Potts & Bernstein, by Ben R. Hanchey, Monroe, for defendant-appellee, Continental Casualty Co.
    Madison, Files, Garrett, Brandon & Ha-maker by Charles L. Hamaker, Monroe, for defendant-appellee, International Paper Co.
    Before HALL, MARVIN and JONES, JJ.
   MARVIN, Judge.

L.R.S. 22:211-222 provides for group or blanket health and accident insurance for employees. Plaintiff’s demands arising from such a policy were dismissed on an exception of prescription and on motions for summary judgment of his employer and the group insurer. We reverse and remand.

From 1955 until his disability retirement in 1973, plaintiff was an employee of defendant, International Paper Company (IPCO). IPCO purchased from the defendant insurer a group policy in 1964 and offered to pay part of the premium for any employee who desired to participate in the group plan and who would pay the remaining part of the premium. Plaintiff elected to participate and contributed his part of the premium. This policy provided disability benefits based on a formula which would allow deduction of social security disability benefits received by the employee. Plaintiff was given a certificate which evidenced his participation in the plan under the master policy.

This policy was cancellable at the option of either the insurer or IPCO on an annual term. The 1964 policy was modified as to coverages and benefits several times by agreement between IPCO and the insurer during its initial and its renewal terms until it was mutually terminated by IPCO and the insurer, and replaced on January 1, 1968, with a new policy. Under the 1968 policy, IPCO’s employees were not required to contribute to the premium in order to participate. All employees participated and the entire premium was paid by IPCO. The 1968 policy provided disability benefits based on a formula which would allow deductions not only of social security benefits received by the employee, but as well, social security benefits received by the employee’s family because of the employee’s disability. This suit arises because the disability benefits for the employee under the new policy are subject to the increased deduction. This results in the monthly benefit being $300 less than the monthly benefit provided by the old policy.

When the 1968 policy was written, the insurer delivered to IPCO participation certificates for presentation to IPCO employees. A serious factual issue exists as to whether IPCO presented a new certificate to plaintiff and its other employees. One IPCO representative testified that IPCO was using the old policy certificates and policy as late as September 15, 1973, when plaintiff filed his claim for disability benefits under the old .policy. The discrepancy in the certificates came to light after plaintiff filed his claim. After plaintiff’s claim under the old policy was denied, and plaintiff contacted the office of the Louisiana Insurance Commissioner on March 1, 1974, and received a response thereto on March 22, 1974. Plaintiff filed suit on March 13, 1975, against IPCO and the insurer, alleging alternative causes of action.

Plaintiff contends both defendants are solidarily liable for the benefits or an amount equal to the benefits provided by the old policy since he was not notified by defendants of the cancellation of the old policy and the substitution of the new policy with reduced benefits.

L.R.S. 22:215(A)(3)(g) provides:

“An individual application shall not be required from a person covered under such a blanket policy. The insurer shall furnish to the policyholder [IPCO here] for delivery to the insured [plaintiff here] a certificate of insurance which shall disclose the benefits, limitations, exclusions, and reductions contained in the policy and . . . any other relevant information, including the name and address of the insurer . . . ” Material in brackets and emphasis supplied.

The defendant insurer contends that the policy under which the plaintiff sues went out of existence on January 1, 1968. The insurer delivered certificates to the corporate headquarters of IPCO as required by the policy and by law. The trial court sustained the insurer’s motion for summary judgment in this language:

“The court finds no statutory or jurisprudential authority, nor has it been cited to any which obligated the insurer to notify plaintiff directly of the termination of the old policy and/or the issuance of the new policy. By law and by contract its direct relationship was with [IPCO] who was the policyholder and to whom the insurer fulfilled all obligations. There are no material facts in dispute relating to plaintiff’s.contractual claim against insurer on the old policy and as yet no claim presented under the new policy.”

IPCO contends it owed no obligation to notify its employees of any modification or termination of benefits under a group plan. We do not agree.

L.R.S. 22:215, quoted supra, in part, since Act of 1966, clearly requires that the insurer furnish to the policyholder-employer a certificate for delivery to the insured-employee. This certificate is required to disclose the benefits, limitations, exclusions and reductions contained in the master policy. The purpose of this law is to provide the insured-employee with information concerning the coverage or the lack of coverage afforded. Colvin v. La. Hospital Services, 321 So.2d 416 (La.App.2d Cir. 1975). Once the insured employee is made aware of the coverage afforded him, he can more intelligently decide on what additional insurance coverage if any, his individual circumstances may warrant.

The policy itself contemplates such disclosure to the insured employee in Part VII:

“The Company will issue to the Employer for delivery to each Insured Employee an individual certificate describing the benefits to which the Insured Employee is entitled under this policy and to whom payable and limitations and requirements of this policy pertaining to the Insured Employee and where this policy may be inspected.”

Plaintiff’s affidavit in opposition to IPCO’s motion for summary judgment emphatically denies any notification by IPCO and other knowledge of the cancellation of the old policy and substitution of the new. IPCO’s personnel director, under whose supervision this responsibility was placed by IPCO, could not say whether plaintiff or other employees had been furnished the requisite certificate under the new policy.

We do not hold that an employer-policyholder has no right to terminate or modify a group health and accident policy it has purchased for its employees. See Annotation: “Group Policy — Termination,” 68 A.L.R.2d 251, as supplemented; Austin v. Metropolitan Life Insurance Company, 142 So. 337 (La.App.2d Cir. 1932); Carpenter v. Metropolitan Life Insurance Company, 159 So. 467 (La.App.Orl.Cir.1935), 182 La. 813, 162 So. 630 (1935); Watkins v. Metropolitan Life Insurance Co., 174 So. 885 (La.App.1st Cir. 1937). We hold that an employer policyholder of a group health and accident policy is obligated to inform the insured employee of the termination or modification of benefits under the policy.

The lower court interpreted plaintiff’s alternative allegations against IPCO with respect to the obligation above mentioned to sound in tort and held plaintiff’s claim of whatever character, to have prescribed because of plaintiff’s failure to bring suit within one year of his acquiring knowledge that the benefits had been reduced in the new policy. C.C. Art. 3536.

We abandoned the theory of the ease pleading and in recent years have liberally construed our procedural laws to allow consideration of any cause of action or defense, even if not properly labeled or prayed for, if the pleadings, taken as a whole, contain sufficient factual allegations to afford fair notice to the adverse party of the relief sought. See C.C.P. 862; Terral v. Bearden, 338 So.2d 141 (La.App.2d Cir. 1976) and cases cited therein. Plaintiff’s allegations fairly, and clearly inform IPCO of the alleged factual basis upon which plaintiff seeks relief and we find that IPCO has not been deprived of fair and timely notice of plaintiff’s cause or causes of action.

We cannot say that IPCO’s breach of the obligation to notify plaintiff of the benefits, limitations, exclusions and deductions of the group policy is solely an offense or quasi-offense prescribed by one year. C.C. Art. 3536. Plaintiff was damaged by IPCO’s conduct arising out of a contractual or quasi-contractual relationship, the extent of which we choose not to determine from the existing record before trial. Plaintiff’s relationship with the defendant insurer was established and modified by IPCO. IPCO was contractually or quasi-contractually related both to plaintiff (as the employer) and to the defendant insurer (as its policyholder and perhaps as its agent). Were it not for the existence of the group insurance contract or contracts, plaintiff would have no cause of action against either defendant and we are satisfied that plaintiff’s claim is in the nature of a personal action prescribed by 10 years. C.C. Art. 3544; Dean v. Hercules, Incorporated, 328 So.2d 69 (La.1976); Terry v. Slidell Refrigerating & Heating Inc., 271 So.2d 536 (La.App.1st Cir. 1972); Dantagnan v. I.L.A. Local 1418, AFL-CIO, 496 F.2d 400 (5th Cir. 1974); State ex rel. Murray v. Board of Tr. of Police Pen. F., 259 So.2d 613 (La.App.4th Cir. 1972).

To what degree these relationships may affect plaintiff’s remedy as against either defendant can be determined only after evidence is presented as to the extent of each relationship. The motions for summary judgment and the exception of prescription were erroneously granted. We reverse the lower court in this respect at the cost of appellees and, for proceedings not inconsistent herewith, remand to the lower court.

REVERSED and REMANDED.

      . The old policy number was SR 193709. The new policy number was SR 193709-A.


text:
    Zona Marie Anderson FRAZIER, Plaintiff-Appellant, v. Morrell Paige FRAZIER, Defendant-Appellee.
    No. 13257.
    Court of Appeal of Louisiana, Second Circuit.
    May 23, 1977.

      Donald R. Miller, Shreveport, for plaintiff-appellant.
    Wiener, Weiss & Madison by John M. Madison, Jr., Shreveport, for defendant-ap-pellee.
    Before BOLIN, PRICE and MARVIN, JJ.
   MARVIN, Judge.

The wife petitioned for a separation and for rules for temporary injunction, child custody, child support and alimony. By agreement between the litigants and counsel, the court entered a verbal order granting certain interlocutory relief to the wife when her rules were called for hearing on September 2. This verbal order was not reduced to judgment.

After trial on the merits, the court below rejected the wife’s demands in a judgment on November 12, from which the wife later appealed. Before the appeal of the November 12 judgment, the wife filed a rule for temporary alimony and child support and tendered for signing by the lower court, a written judgment which was alleged to be in accord with the verbal order of September 2 granting interlocutory relief.

The lower court declined to sign the tendered judgment and sustained the husband’s peremptory exception of no cause of action to the rule of the wife for temporary alimony and child support.

We affirm the rejection of the wife’s demands on the merits by the judgment of November 12, but reverse the lower court’s sustaining of the exception of no cause of action to the wife’s rules for temporary alimony and child support during the pend-ency of the proceeding because the judgment on the merits is not yet final. For a determination of the temporary alimony and child support, if any, to which the wife and child may have been entitled until the date the judgment of November 12 becomes final, we remand to the lower court.

THE MERITS

The wife’s demands for separation were founded upon the husband’s alleged cruel treatment and habitual intemperance which caused her to move from the family home. Whether one spouse legally proves grounds for separation is a question of fact arising from credibility issues where testimony is conflicting. Our review of the record does not convince us that the lower court erred in rejecting the wife’s demands.

TEMPORARY SUPPORT

C.C. Art. 148 is mandatory in its declaration that the trial judge shall allow the wife a sum for her support pending the suit for separation. For the purposes of C.C. Art. 148, the suit for separation is pending until such time as the judgment dispositive of the merits of the particular cause of action becomes final. C.C.P. Arts. 1841, 1842. See also Moseley v. Moseley, 216 So.2d 852 (La.App.2d Cir. 1968); Cousin v. Cousin, 327 So.2d 138 (La.App. 4th Cir. 1976). The legal basis for temporary child support pending the separation suit is analogous and is treated similarly to the temporary support for the wife. See C.C. Arts. 146, 148, 227; Wilmot v. Wilmot, 136 So.2d 806 (La.App. 4th Cir. 1962).

This is not to say that a trial court is compelled to order in all circumstances, temporary support by the husband pending the suit for separation. C.C. Art. 148 clearly sets forth the general circumstances under which this support shall be granted:

“If the wife has not a sufficient income for her maintenance pending suit . the [trial] judge shall allow ... a sum for her support, proportioned to her needs and the means of her husband.” Emphasis supplied.

Cases interpreting this article in particular circumstances are many.

It is apparent here that the lower court’s refusal of temporary support pending the suit was not based on a finding that the wife had sufficient income for the maintenance of herself and her child, but was based on the fact that a different district judge rendered the verbal order of September 2 and the latter district judge considered the verbal order inconsistent with his judgment on the merits.

The wife has not been allowed to show the circumstances which may have entitled her to support for herself and her child pending the suit for separation, the judgment in which, even though here affirmed, is not yet final. The case is remanded for that limited purpose, in which proceedings the husband shall be entitled to present evidence in mitigation or dissolution of his obligation of support.

Costs of this appeal are assessed one-half to each litigant. Judgment on the merits of November 12, 1976, is affirmed. The sustaining of the husband’s exception of no cause of action to the wife’s rule for temporary support is reversed and the case is remanded for further proceedings not inconsistent with this opinion.

      . The verbal order of September 2 occurred as follows:

        Wife’s Attorney. “Your honor . . . there has been an agreement as to support . . . that Mrs. Frazier will continue to draw the salary from Frazier Foods, Inc. that she has been drawing . . . and this is to be without prejudice to permanent or temporary child support or alimony which will be fixed at a future date. The temporary injunctions will issue as prayed for . . . and custody of the child to be awarded to Mrs. Frazier.”

        Husband’s Attorney: “That is fine with us.” The Court: “All right, sir, that will be order of the Court.”

      . The record indicates that the family corporation (Frazier Foods, Inc.) continued to pay the wife the salary agreed to on September 2 until November 12, the date the judgment was signed rejecting the wife’s demands.


author: BOLIN, Judge.

text:
    Edith FOGLEMAN, Individually and as Administratrix of the Estate of her five Minor Children, Plaintiff-Appellant, v. PIGGLY WIGGLY OPERATORS WAREHOUSE, INC., et al., Defendants-Appellees.
    No. 13258.
    Court of Appeal of Louisiana, Second Circuit.
    May 23, 1977.
    En Banc.
    Rehearing Denied June 22, 1977.

      Arthur Cobb, Ltd. by Arthur Cobb, Baton Rouge, for plaintiff-appellant.
    Lunn, Irion, Switzer, Johnson & Salley by Harry A. Johnson, Jr., Shreveport, for defendants-appellees.
    Before BOLIN, PRICE and MARVIN, JJ.
   BOLIN, Judge.

Plaintiff, individually and on behalf of her minor children, seeks damages for the alleged wrongful death of her husband. Plaintiff’s husband was found lying fatally injured on U.S. Highway No. 84, and it is plaintiff’s contention that his death resulted from being run over by a Piggly Wiggly truck. Named defendants are the truck driver, Mason Ginn, Piggly Wiggly Operators Warehouse, Inc., and the liability insurer of Piggly Wiggly. Plaintiff’s case was limited to circumstantial evidence as there were no witnesses to the accident. The district judge who tried the case was replaced by a newly-elected judge before the case was decided and he rejected plaintiff’s demands, finding that plaintiff had failed to meet the burden of proof required in circumstantial evidence cases. Plaintiff appeals and we affirm.

Various witnesses testified that they had driven past the deceased shortly before 4:00 a. m.; that the deceased was lying across the eastbound lane of U.S. Highway 84; and that he appeared at that time to be uninjured. Soon thereafter Ginn, who was driving a large Piggly Wiggly truck in an easterly direction along the same highway, noticed a shape in the road ahead and he pulled his truck into the westbound lane to pass the object later identified as the deceased. After passing the object, Ginn pulled back into the eastbound lane and then stopped his truck on the eastbound shoulder. Simultaneously, two men in a car heading in a westerly direction on the highway passed Ginn’s now stationary truck and found plaintiff’s husband lying in the road, severely mangled and near death.

Plaintiff contends that the deceased was lying across the eastbound lane of the highway, alive and uninjured, at approximately 4:00 a. m.; that Ginn negligently failed to notice deceased lying in the road until it was too late to avoid running over him; and that the back wheels of the Piggly Wiggly trailer rolled over the deceased, inflicting the fatal injuries.

Testimony was offered that such damage could have only been inflicted by a very large vehicle. There was no evidence that any other large vehicles were operating in the area at this time. However, it was established that there were several roads intersecting U.S. 84 in the area where the deceased was found.

Ginn’s deposition was offered into evidence by the plaintiff’s attorney in lieu of his testimony at the trial. In his deposition Ginn stated he first saw the object, later identified as the deceased, when it was some 200 yards ahead of his truck and he moved into the westbound lane to go around it. He estimated the time to be approximately 4:45 a. m. He stated that as he passed the object he could not recognize it as a human being and that it was “all bloody and hard to distinguish . . . exactly what it was . . ." Ginn’s testimony is uncontroverted and is readily believable.

In every tort action the plaintiff must show that it is more probable than not that the harm was caused by the fault of the defendant. The evidence may be entirely circumstantial provided it excludes with a fair amount of certainty any other reasonable way the tort could have occurred except the one urged by the injured party. Jordan v. Travelers Insurance Co., 257 La. 995, 245 So.2d 151 (1971); A & M Pest Control Service, Inc. v. Fejta Construction Co., 338 So.2d 946 (La.App. 4th Cir., 1976).

The only link between the Piggly Wiggly truck and the accident was the presence of that truck in the area on the morning of the accident. It is not certain how long plaintiff’s husband lay in the road before he was run over nor was it shown when he was run over. Further, there is no physical evidence pointing to Ginn’s truck as the vehicle responsible for the fatal injuries. It is possible that plaintiff’s husband was run over by Ginn’s truck but it is equally possible that he was run over by another large vehicle before it turned down one of the numerous side roads leading to oil rigs in the area.

Plaintiff having failed to meet her burden of proof, the judgment rejecting her demands is affirmed at her cost.


text:
    Bill G. HALLEY and C. P. Malone, d/b/a Spearsville Timber Company, Plaintiffs-Appellees, v. J. F. SELLERS, Defendant-Appellant.
    No. 13260.
    Court of Appeal of Louisiana, Second Circuit.
    May 23, 1977.
    Marshall Q. Blackwell, Monroe, for defendant-appellant.
    Farrar & Perry by Bennie Mac Farrar, Monroe, for plaintiffs-appellees.
    Before BOLIN, PRICE and MARVIN, JJ.
   PRICE, Judge.

This is an appeal from the judgment ordering the return of the purchase price of timber because of a breach in the warranty of title by the vendor.

Defendant, J. F. Sellers, purporting to be the sole owner, executed a deed to plaintiffs, Bill G. Halley and C. P. Malone, d/b/a Spearsville Timber Company, conveying all merchantable timber on an eighty-acre tract in Ouachita Parish. Plaintiffs were given one year for removal. The specific date of execution of the deed is unclear as the instrument was dated “August_, 1974.”

Plaintiffs seek return of the purchase price contending they discovered subsequent to the sale that defendant was not the record owner of the timber, and that their right to peacefully remove the timber was disturbed by third parties. Defendant denies a breach of warranty occurred as he contends he had the right to sell the timber, and that plaintiffs made no attempt to cut and remove the timber within the time allowed by the contract.

The undisputed facts giving rise to this litigation are as follows:

Defendant and S. T. Ashcraft purchased the eighty-acre tract on June 22, 1973. In September, 1973, they sold twenty acres to Marvin Underwood and forty acres to Jesse R. Myers. Subsequently, defendant made an oral agreement with Underwood and Myers to clear their land in return for the timber situated on it. A letter confirming the agreement was later signed by the wives of Underwood and Myers. The letter was never recorded. In May, 1975, Underwood sold his twenty-acre tract to Jimmy Lenard, and in July, 1975, Myers sold twenty acres of his property to Phillip Sims and wife.

The remaining facts are in dispute. Plaintiffs contend they did not attempt to remove timber until March or April of 1975 because of excessive rainfall. After entering upon the land, they contend a telephone call was received by Halley’s wife from a third party informing her that her husband’s firm had no right to cut the timber. Plaintiffs contend they examined the public records and found defendant owned only an undivided one-half interest in twenty of the eighty acres. Plaintiffs contend they immediately made an inquiry to defendant regarding the problem and he gave assurances he had the right to sell all of the timber on the entire tract. Relying on this assurance by defendant, plaintiffs contend they made another attempt to remove the timber in the summer of 1975 (July or early August). Plaintiffs contend their work crew was then ordered to stop cutting by Phillip Sims, who was a vendee of a portion of the eighty-acre tract. Plaintiffs ceased operations and filed this action demanding a return of the purchase price.

Defendant denies the attempts were made by plaintiffs to remove the timber at the times contended by them. He contends no effort was made until some time in September, 1975, after the stipulated period for removal of the timber had expired. Defendant also denies receiving a call from plaintiffs in April, 1975, questioning his ownership or right to sell the timber.

The trial court resolved the conflicting evidence relating to these disputed factual issues in favor of plaintiffs and found that plaintiffs had made the two attempts to remove timber from the tract within the one-year period provided by the contract. The court found that the last attempt was within sufficient time to have allowed removal of substantially all of the timber had plaintiffs’ crew not been stopped by Mr. Sims.

The court further found that it was uncertain that defendant could have established legal ownership of the timber on all of the eighty-acre tract at the time he sold the timber to plaintiffs in August of 1974, and that defendant breached his warranty of title for the following reasons:

Thus, it is far from certain that defendant could have established legal ownership of the timber on all of the property when plaintiffs took their timber deed in August, 1974. While Underwood and Myers may well have acknowledged the ownership of Sellers and Ashcraft at that time, they could have raised serious questions as to the duration of their own agreement and may well have questioned the right to defendant to grant a year’s delay for cutting. Moreover, whatever position defendant’s vendees might have taken in a dispute with defendant at that time, plaintiffs had no knowledge of those oral and unrecorded agreements, were not parties to them and should not have been obliged either to litigate or to obtain acknowledgements to sustain their title to the timber. At the very least, defendant could have attempted to resolve the problems in April or May when Malone discussed it with him by obtaining written ratifications from the persons who then owned the property.
The Court therefore concludes that defendant did not deliver to plaintiffs merchantable title to the timber on 60 acres of the land. No matter when, if at all, plaintiffs attempted to remove the timber prior to August 31,' 1975, they faced substantial risk of being cast for trespass damages regarding the 60 acres previously sold by defendant. The latter’s contentions herein are ex-post facto conclusions based upon the fact that the one-year period expired without removal of any timber and the testimony of his vendees at least partially recognizing his verbal claim to the timber in this trial.
With respect to the 20 acres of which defendant and Ashcraft retained record title, a somewhat similar situation is presented. Defendant did not disclose Ashcraft’s co-ownership at the time of the timber deed. When questioned later, he orally asserted the legal mandate to bind Ashcraft; and the latter ratified that fact during this trial. Again, however, throughout the one-year term of the timber deed, the record ownership was contrary to the timber deed, and defendant neither obtained nor furnished independent proof of his mandate. Again, had plaintiffs removed timber from this 20-acre tract during the prescribed period, they would have incurred substantial risk of contrary contentions by Ashcraft.
Defendants’ own actions and omissions, therefore, placed plaintiffs in the completely untenable position of having to assume the risk of legal trespass, or of taking affirmative action at their expense of seeking the necessary provable acknowledgements and ratifications. The warrant implied by law in defendant’s timber sale does not require the vendee to assume such a position.

The factual issues in dispute turn primarily on the credibility of the witnesses’ testimony. Therefore, the trial court’s finding on such issues should not be disturbed in the absence of manifest error which has not been shown by the record.

Defendant’s remaining specifications of error relate to whether plaintiffs have shown an eviction in fact, and if so, whether he was timely called in warranty in accord with La.C.C. Art. 2517 to preserve the right of warranty against the seller.

As found by the trial judge, under the circumstances confronting plaintiffs, they were not required to expose themselves to the possible commission of a trespass to test the validity of defendant’s title to the timber. The facts presented constitute an eviction in accord with La.C.C. Art. 2500.

The oral notification to defendant in April or May, 1975, put defendant on notice his title was in question. He had ample opportunity thereafter to have obtained the necessary written evidence from his co-owner or vendees to furnish proof to plaintiffs of his authority to sell. Defendant having failed to take this action within the time provided for removal of the timber, cannot now complain plaintiffs have not complied with the provisions of Arts. 2517 and 2518.

For the foregoing reasons, the judgment is affirmed at appellant’s costs.


author: JONES, Judge.

text:
    SUCCESSION of Pierre Tanner TATUM.
    No. 13261.
    Court of Appeal of Louisiana, Second Circuit.
    May 23, 1977.
    En Banc.
    Rehearing Denied June 22, 1977.

      Sion Smith Tatum, in pro. per.
    Paul W. Cary, Shreveport, for S. S. Tatum as Testamentary Executor, defendant-appellee.
    Booth, Lockard, Jack, Pleasant & LeSage by Joe C. LeSage, Jr., Shreveport, for Selma Tatum, defendant-appellee.
    Before HALL, MARVIN and JONES, JJ.
   JONES, Judge.

Sion Smith Tatum appeals from a judgment rejecting his demand that two testamentary trusts established by his father be declared invalid. We affirm.

Pierre Tanner Tatum died testate in Shreveport on April 9, 1975, leaving a wife by a second marriage, one son, Sion Smith Tatum, and two grandchildren, issue of Sion Smith Tatum. The decedent’s statutory will, dated September 21, 1974, provided for two trusts (hereafter called the cemetery trust and the real estate trust). The pertinent portions read:

“I desire and direct that all my just debts be paid as soon as is practical after my death. I desire that my funeral expenses be paid from a SIX THOUSAND AND NO/100 ($6,000.00) DOLLARS CERTIFICATE OF DEPOSIT that I own. After the payment of my funeral expenses from this SIX THOUSAND AND NO/100 ($6,000.00) DOLLARS certificate of deposit, I desire that the remaining funds left from this certificate of deposit be set up in a trust with some reputable trust company for the maximum period of time authorized by law for trust and that from the interest earned each year the sum of TEN AND NO/100 ($10.00) DOLLARS be paid to each of the following cemeteries for their maintenance and upkeep, to-wit: the Oak Grove Cemetery and the Converse Cemetery. Should the remaining funds from this certificate of deposit not be sufficient to produce the sum of TWENTY AND NO/100 ($20.00) DOLLARS per year from interest on said certificate of deposit I then order that the trustee be authorized to encroach upon the principal in order to fulfill this bequest until the total of the remaining funds left from this certificate of deposit be expended. Should there be sufficient funds remaining after the payment of my funeral expenses so that this certificate of deposit will produce the sum of TWENTY AND NO/100 ($20.00) DOLLARS per year for interest, I hereby direct that the trust last for the maximum period of time provided under the law. At the end of that period of time, I direct that the remaining funds be disposed of in accordance with the law.
* * * * * *
“I hereby direct that a trust be set up with some reputable trust company named as the trustee to administer the corpus of said trust and that the following described property located in Sabine Parish, Louisiana, be included in said trust as a principal of the corpus, to wit: Two hundred three and one-third (203y3) acres of land more less (sic) * * *
“Said trust to be effective for the maximum period allowed under the law to be administered for the benefit of my beloved son, SION SMITH TATUM. The said trustee shall have full authority with respect to the administration of said property and that my son shall receive the benefits from any and all funds derived from the administration of said corpus. It being my intent here that my son, SION SMITH TATUM, receive the benefits from the administration of the trust to be set up with some reputable trust company for the maximum period of time authorized for said trust in Louisiana and that the two hundred three and one-third (203V3) acres of land described herein above be administered for the benefit of my son. All funds received from the administration of said trust shall be payable to my son in an orderly and business like manner by the trustee. At the expiration of said trust, any funds still held to be disposed of in accordance with law.”

The residuary legatees under the will were the deceased’s two grandchildren. Sion Smith Tatum was named as testamentary executor.

Sion Smith Tatum brought this declaratory judgment proceeding in proper person asking that the trusts be declared null and of no effect. An attorney, employed by Sion Smith Tatum in his capacity as executor, defended the testator’s interest.

Oak Grove Cemetery and Converse Cemetery renounced the bequest in trust to them. Because of this, the lower court held the question of the validity of the cemetery trust was moot. The lower court declared the real estate trust for the benefit of Sion Smith Tatum was valid.

When beneficiaries of the cemetery trust renounced the benefits, it was not necessary for the lower court to pass on the validity of the cemetery trust because refusal by the sole beneficiary causes the trust to fall. LSA-R.S. 9:1990(1). The intended corpus will devolve on the residuary legatees.

With respect to the real estate trust, Sion Smith Tatum contends the language of the will is not sufficient to establish a trust; the principal beneficiary is not ascertainable and vested at the death of the settlor; and his legitime is not satisfied by the bequest in trust.

LSA-R.S. 9:1753 states:

“No particular language is required to create a trust, but it must clearly appear that the creation of a trust is intended. “A trust instrument shall be given an interpretation that will sustain the effectiveness of its provisions if the trust instrument is susceptible of such an interpretation.”

The language of the will clearly evidences the testator’s intent to establish a trust. It directs a trust be created, a trustee appointed and clearly describes the corpus of the trust. The will names the beneficiary (see discussion below); establishes a maximum term; and provides for payment of all income produced from the corpus of the trust. It is of no import the trustee is not specifically named in the will. LSA-R.S. 9:1785. It is also of no import that the settlor “. . . directed a trust be set up . ” instead of using more formal language to establish the trust. LSA-R.S. 9:1753, quoted supra.

The contention that a principal beneficiary is not named or ascertainable is also without merit. While the will does not expressly designate Sion Smith Tatum as the principal and income beneficiary, it clearly and expressly provides that the trust is . to be administered . for the benefit of my beloved son, Sion Smith Tatum. . . ,” The will additionally states that Sion Smith Tatum shall receive the benefits and that all funds from the trust shall be payable to Sion Smith Tatum. The provisions of the will establishing this trust cannot be interpreted other than as intending Sion Smith Tatum to be both income and principal beneficiary of the trust.

Since the will has designated a principal and income beneficiary whose interests in the trust are established from its inception, Sion Smith Tatum’s argument that the disposition is a prohibited substitution need not be considered. LSA-R.S. 9:1723; Succession of Materiste, 273 So.2d 617 (La.App., 1st Cir. 1973).

Sion Smith Tatum also complains the disposition in trust impinges on his legi-time. LSA-R.S. 9:1841 expressly provides:

“The legitime or any portion thereof may be placed in trust provided:
(1) The net income accruing to the forced heir therefrom is payable to him not less than once each year; and
(2) The forced heir’s interest is subject to no charges or conditions except as provided in R.S. 9:1843 and 9:1844; and
(3) The term of the trust, as it affects the legitime, does not exceed the life of the forced heir; and
(4) The principal shall be delivered to the forced heir or his heirs, legatees, or assignees free of trust, upon the termination of the portion of the trust that affects the legitime.”

The bequest in trust to Sion Smith Tatum meets the requirements of this section.

The judgment declaring the validity of the real estate trust is affirmed at appellant’s cost.

      . See LSA-R.S. 9:1801, which provides “A beneficiary is a person for whose benefit the trust is created . . . .”

      . Pierre Tatum’s net estate was valued at $52,-599.11. Sion Smith Tatum was bequeathed land free of the trust valued at $1300 and land subject to the trust valued at $20,000. He has therefore received more than one-third of his father’s estate, LSA-C.C. Art. 1493, and his legitime is satisfied.


author: PER CURIAM.

text:
    Charles W. FLYNT, Plaintiff-Appellant, v. Barbara FLYNT, Defendant-Appellee.
    No. 13308.
    Court of Appeal of Louisiana, Second Circuit.
    May 23, 1977.
    Thomas H. Fowler Jr., Monroe, for plaintiff-appellant.
    Brown, Wicker & Lee by Ralph J. Wicker, Monroe, for defendant-appellee.
    Before BOLIN, PRICE, HALL, MARVIN and JONES, JJ.
   PER CURIAM.

Judgment of separation was rendered at trial on February 7, 1977. The judgment was signed on February 10, 1977. Appellant did not make a motion for appeal nor furnish an appeal bond until March 29, 1977, which was not timely. LSA-C.C.P. Art. 3942.

Appellant was notified of our probable lack of jurisdiction and did not respond to our order to show cause why this appeal should not be dismissed.

At appellant’s cost, the appeal is DISMISSED.


text:
    J. Rodney RYAN, Jr., Plaintiff-Appellee, v. UPTON BELL, Defendant-Appellant, and The World Football League et al., Defendants-Appellees.
    No. 13314.
    Court of Appeal of Louisiana, Second Circuit.
    May 23, 1977.
    Wiener, Weiss & Madison by John W. Madison, Jr., Shreveport, for Upton Bell, defendant-appellant.
    Joseph W. Cole, Jr., Port Allen, for J. Rodney Ryan, Jr., plaintiff-appellee.
    Alex Rubenstein, Shreveport, Curator for appellee, World Football League d/b/a The Charlotte Hornets.
    Nolan Harper, Shreveport, La., Curator for defendant-appellee, New York Pro-Grid d/b/a New York Stars.
    Before BOLIN, PRICE, HALL, MARVIN and JONES, JJ.
   PER CURIAM.

Judgment was signed on October 19, 1976, and notice of judgment was mailed October 25. Appellant applied for a new trial which motion was denied on December 22, 1976. Appellant did not make a motion for appeal nor furnish security until March 15, 1977, which was not timely. LSA-C. C.P. Art. 2087.

Appellant was notified of our probable lack of jurisdiction and did not respond to our order to show cause why this appeal should not be dismissed.

At appellant’s cost, the appeal is DISMISSED.


text:
    SUCCESSION of Hattie MILES, Petitioners-Appellees, David Mustiful et al., Petitioners-Appellees, Katie J. Booker, Opponent-Appellant.
    No. 13266.
    Court of Appeal of Louisiana. Second Circuit.
    May 31, 1977.
    David A Rothell, Mansfield, for appellant.
    Mecom, Scott & Woods, by B. J. Woods, Shreveport, for appellees.
    Before BOLIN, MARVIN and JONES, JJ.
   BOLIN, Judge.

This case having been called for argument in the manner and at the time prescribed in the Uniform Rules of the Courts of Appeal, Rule V, Section 4, and the appellant having neither appeared nor filed a brief prior to the time the case was called for argument, the appeal is considered abandoned and is dismissed at appellant’s cost. Louisiana Code of Civil Procedure, Article 2162 and Uniform Rules, Courts of Appeal, Rule VII, Section 5(b).


author: DOMENGEAUX, Judge.

text:
    H. S. COLEMAN, Jr., (Donald A. Milton & J. T. Wainwright), Plaintiffs and Appellants, v. J. S. ALLEN, Registrar of Voters, Defendant and Appellee.
    No. 6098.
    Court of Appeal of Louisiana, Third Circuit.
    June 10, 1977.
    Reeves & Owens by Jack L. Owens, Har-risonburg, for plaintiffs and appellants.
    Gaharan, Richey & Wilson by Joseph Wilson, Jena, for defendant and appellee.
    Before DOMENGEAUX, GUIDRY and ROGERS, JJ.
   DOMENGEAUX, Judge.

This suit concerns itself with an application for a Writ of Mandamus by H. S. Coleman, Jr. against J. S. Allen, Registrar of Voters of LaSalle Parish, Louisiana, praying that the said Registrar be ordered to certify the names of various persons to the Secretary of State of Louisiana in connection with a previously certified recall petition.

The rule was heard in the district court, pursuant to previous fixing, on March 31, 1977, and judgment was rendered in favor of the defendant registrar, dismissing the rule to show cause and denying the writ of mandamus.

Writs were applied for by plaintiffs to this court and denied on April 13, 1977.

Plaintiff has appealed and we are informed by the parties that the Governor of the State of Louisiana has ordered that the recall election be held on June 28, 1977. Accordingly, we have expedited the hearing on appeal.

Appellant suggests two issues upon which the trial judge erred:

1. The interpretation of the recall election statute, as amended, LSA-R.S. 42:341 et seq.

2. Deprivation to plaintiffs of due process under the United States and Louisiana Constitutions.

We conclude that the reasons for judgment rendered by the able trial judge correctly sets out the facts of this dispute, and adequately disposes of the first issue, and we quote from same with approval, as follows:

The facts are as follows:

(1) Petitioner Coleman was elected a member of the school board from Ward 2 in LaSalle Parish in 1972 and his term of office is not due to expire until December 31, 1978.

(2) A committee has circulated a petition in Ward 2 of LaSalle Parish, Louisiana calling for the recall of petitioner. Their petition containing the names of persons purporting to be qualified electors in Ward 2 of La-Salle Parish was filed with the defendant, Registrar of Voters, on the 25th day of March, 1977.

(3) Defendant, in his capacity as Registrar of Voters, certified the petition on the 26th day of March, 1977, and on the same date he submitted the petition by mail to the Hon. Paul Hardy, Secretary of State of Louisiana.

(4) Along with the petition referred to above and the certificate dated 26th March 1977, the defendant certified and submitted to the Secretary of State other lists of persons who by their signatures indicated it was their desire to remove their 47 names from the petition calling for the recall of plaintiff. These lists had been submitted to defendant by Mr. Coleman on or before the 26th day of March.

(5) On Monday, March 28th and Tuesday, March 29th, 1977, Plaintiff Coleman requested that defendant certify other lists, containing 105 more names of persons, including Plaintiffs Milton and Wainwright, who seek to remove their names from the certified petition.

(6) Defendant has refused to certify any of the 105 names on the lists tendered to him after March 26th and he has refused to forward these lists to the Secretary of State or to the Governor. He has made the same refusal to proponents of the recall who seek to have their names added to the original petition.

(7) When Mr. Coleman tendered the lists after March 26th, defendant advised him he could not accept them. Nevertheless, Coleman left them at defendant’s office. Defendant brought the lists to Court, identified them and they were introduced in evidence.

As stated above, plaintiffs seek a Writ of Mandamus directing defendant to certify that those listed on the documents tendered after 26 March 1977 are Ward 2 electors who signed the petition certified on the 26th day of March 1977 and to transmit said lists and certificate to the Secretary of State of Louisiana before action is taken by the Governor of Louisiana pursuant to La.R.S. 42:347. The issue is whether La.R.S. 42:343(B) prohibits his doing so.

The Louisiana Legislature has established the following procedure in recall efforts:

§ 341 RECALL AUTHORIZED

Any public officer, excepting judges of the courts of record, may be recalled in accordance with the provisions of this Chapter.

§ 342 PETITION FOR RECALL ELECTIONS

A. Whenever the recall of any public officer is sought, a petition shall be directed to the governor. The petition shall be confined to the request that an election be called and held in the voting area for the purpose of recalling the officer.

B. This petition shall be signed by a number of the electors of the voting area as will in number equal not less than twenty-five per centum of the number of the total electors of the voting area wherein and for which a recall election is petitioned; provided, however, that where fewer than one thousand qualified electors reside within the voting area, the petition shall be signed by not less than forty per cent of said electors.

§ 343 CERTIFICATION OF REGISTRAR OF VOTERS; WITHDRAWAL OF SIGNATURES

A. The registrar of voters of each parish in the state, wherein a recall election is sought, shall certify on the recall petition, within ten days after presented to him for that purpose, the number of names appearing thereon, the number of persons who are electors of the voting area, and also the total number of electors of the voting area, as of the date of execution of the certificate. He also shall indicate on the petition the names appearing thereon, who are not electors of the voting area.

B. At any time after receipt of such petition and prior to such certification, the registrar of voters shall honor the written request of any voter whose name appears on such petition and who desires to have his signature stricken therefrom. No additional requests for the withdrawal of any signatures to such petition shall be accepted subsequent to certification of the petition by the registrar of voters.

(C & D inapplicable)

§ 346 SECRETARY OF STATE TO CERTIFY AS TO NECESSARY SIGNATURES

The Secretary of State shall certify upon the recall petition that the number of signatures required have been signed to the petition before presentation to the governor.

§ 347 GOVERNOR TO ORDER ELECTION

Within five days after a petition for a recall election is presented to the governor, in accordance with this Chapter, if the required number of registered voters qualified to vote at the last preceding election signed the petition, calculated from the certificates of the registrars of voters and Secretary of State, then the governor shall issue a proclamation ordering an election to be held for the purpose of deciding upon the issue of recalling the officer, which said election shall be ordered in the proclamation and held on the first Tuesday after the sixtieth day from the date of proclamation. In order to determine the voting area within which an election to recall an officer shall be held, the parishes, or area which composes the state, district, parish, municipality or ward from which the officer’s successor would be chosen shall be considered the proper district, parish, municipality or ward, which shall determine the sufficient and proper signatures to the recall petition, and the number of signatures required shall be determined by calculation of the number of legally qualified voters of the state, district, judicial or otherwise, or of any parish, ward, or municipality, as set forth in R.S. 42:343. The persons whose names shall be counted in the certificate of the registrar of voters shall be registered voters of the district, or area, wherein the recall election is held.

§ 348 VOTING AREAS

The voting area for an election to recall an officer is the area which composes the state, district, parish, municipality or ward from which the officer’s successor is to be chosen.

This area is the basis on which to determine whether the signatures to the recall petition are sufficient and proper; the number of signatures required is determined by calculation of the number of electors of the voting area as set forth in R.S. 42:342.

§ 349 RECALL ELECTIONS TO BE IN ACCORDANCE WITH GENERAL ELECTION LAWS

Elections for the recall of any public officer shall be held under and in accordance with the general election laws of this state, unless otherwise provided in this Chapter.

Plaintiffs’ counsel has suggested that Hawthorne vs. McKeithen, 216 So.2d 899 (1st CIR.LA.APP. 1968) controls this situation. It held that legislative silence with respect to a procedure for the removal of a name from a recall petition left it up to the discretion of the Governor of Louisiana to accept properly certified requests of individuals seeking to have their names withdrawn from recall petitions, if received by him before he called the election pursuant to the mandate of La.R.S. 43:347.

Defense counsel suggests that Cloud vs. Dyess, 172 So.2d 528 (3RD. CIR.LA.APP. 1965) is controlling. It held that excessive delay in transmitting a petition to proper executive branch officials which went unchallenged by the proponents of the recall was justification for the trial court to enjoin the election because of laches. In doing so, they noted that the recall remedy is statutorily designed for prompt action following the circulation of a recall petition.

Neither case is controlling. Both were decided before the 1975 legislature enacted Paragraph B. of R.S. 42:343. As noted above, Paragraph B. states:

B. At any time after receipt of such petition and prior to such certification, the registrar of voters shall honor the written request of any voter whose name appears on such petition and who desires to have his signature stricken therefrom. No additional request for the withdrawal of any signatures to such petition shall be accepted subsequent to certification of the petition by the registrar of voters.

Both sides in this dispute agree no names can be added to the recall petition after its filing with the registrar. Here the registrar accepted none after the petition was filed. He did accept and honor written requests to have names withdrawn when they were presented. Logically, somewhere there has to be an end to the conflict and a count taken. The Courts in Hawthorne vs. McKeithen, supra, said since the legislature did not define when such competition should end, the line would be drawn at the Governor’s office. Since then and before this case arose, the legislature expressed its opinion.

Clearly, Paragraph B. of R.S. 42:343 prohibits a registrar from acting on requests for withdrawal of names from a petition for recall after he submits the petition to the executive officers designated by the legislature to determine if a recall election is required. It is the legislature’s prerogative to overrule the courts and to establish the rules applicable to recall elections and it has done so. This Court is obligated to obey that mandate.

This Court declines to direct the defendant to submit any names received after March 26, 1977 to the Secretary of State or to the Governor of Louisiana. The Clerk of Court is directed to certify a copy of the documents certified by the defendant on March 26, 1977 and to retain the certified copy in his records of this suit. He shall forthwith return the original of those documents to the Secretary of State. Costs are taxed to plaintiffs herein.”

Concerning the second issue, we fail to find that Mr. Coleman was deprived of his rights to due process. Neither in brief or at oral argument were we furnished with convincing reasons to find otherwise. The defendant registrar’s actions were within and not in conflict with the requirements of LSA-R.S. 42:343(A) and (B).

For the above and foregoing reasons, the judgment of the district court in favor of Registrar J. S. Allen, dismissing the rule to show cause and denying the writ of mandamus, is affirmed.

Costs are assessed against appellants.

AFFIRMED.

      . Footnote by Appellate Court — Donald A. Milton and J. T. Wainwright, upon plaintiff Coleman’s motion in the district court, were added as plaintiffs in the Application for Writ of Mandamus.

      . Emphasis by Appellate Court.


text:
    M. A. ROBINSON, Plaintiff-Appellant, v. STATE of Louisiana, DEPARTMENT OF HIGHWAYS, and Louisiana Paving Company, Inc., Defendants-Appellees.
    No. 13322.
    Court of Appeal of Louisiana, Second Circuit.
    June 22, 1977.

      Baker, Culpepper & Brunson, by Herman A. Castete, Jonesboro, for plaintiff-appellant.
    Brown, Wicker & Lee, by Oscar P. Barnes, III, Monroe, for third party defendant, Louisiana Paving Co., Inc.
    Johnson & Johnson, by Don H. Johnson, Monroe, for defendant-appellee, State of La. Dept. Highways.
    Before BOLIN, PRICE, HALL, MARVIN and JONES, JJ.
   PER CURIAM.

Judgment was signed January 5, 1977, and notice of judgment was mailed February 15. Appellant made a motion for appeal on March 14, but did not file an appeal bond until May 10, 1977, which was not timely. LSA-C.C.P. Art. 2087.

Appellant was notified of our probable lack of jurisdiction and did not respond to our order to show cause why this appeal should not be dismissed.

At appellant’s cost, the appeal is DISMISSED.


text:
    Albert Hugh BECKHAM v. Melba B. BECKHAM.
    No. 49475.
    Supreme Court of Mississippi.
    June 1, 1977.
    Lott, Sanders & Gwin, Arnold F. Gwin, Greenwood, for appellant.
    William R. Armstrong, Jr., Greenville, for appellee.
   Appeal from Chancery Court, Humphreys County; Ernest Kellner, Chancellor.

Before INZER, P. J., SMITH and BROOM, JJ., and KERMIT COFER, Commissioner.

AFFIRMED.


text:
    Tom SCHWAB v. STATE of Mississippi.
    No. 49833.
    Supreme Court of Mississippi.
    June 15, 1977.
    Fielding L. Wright, Johnston, Wright & Steinberger, Pascagoula, for appellant.
    A. F. Summer, Atty. Gen. by Scherry J. Lesieur, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Jackson County; Merle F. Palmer, Judge.

Before PATTERSON, P. J., and ROBERTSON and WALKER, JJ.

AFFIRMED.


text:
    Ceola JAMES v. Roy JAMES.
    No. 49862.
    Supreme Court of Mississippi.
    June 15, 1977.
    Robert W. Gee, Bullard, Campbell & Gee, Vicksburg, for appellant.
    No brief filed on behalf of appellee.
   Appeal from Chancery Court, Warren County; J. D. Thames, Chancellor.

Before GILLESPIE, C. J., PATTERSON, P. J., and BROOM, JJ.

AFFIRMED.


text:
    Dwight L. TEW v. Wayne SIMMONS et al.
    No. 49695.
    Supreme Court of Mississippi.
    June 15, 1977.
    William Vol Jones, Jr., Waynesboro, for appellant.
    Louie M. Bishop, Waynesboro, for appel-lees.
   Appeal from Circuit Court, Wayne County; Lester F. Williamson, Judge.

Before GILLESPIE, C. J., PATTERSON, P. J., and BROOM, JJ.

AFFIRMED.


text:
    In re APPLICATION OF Delores R. THOMAS for Resort Area Status. CITY COUNCIL OF the CITY OF PASCAGOULA, Mississippi v. MISSISSIPPI STATE TAX COMMISSION.
    No. 49311.
    Supreme Court of Mississippi.
    June 22, 1977.
    Melvin L. Mitchell, Pascagoula, for appellant.
    James H. Haddock, Joe D. Gallaspy, William N. Lovelady, Jr., Jackson, for appellee.
   Appeal from Chancery Court, Jackson County; Rex Gordon, Chancellor.

Before PATTERSON, P. J., and ROBERTSON and BROOM, JJ., and WOODROW W. BRAND, Jr., Commissioner.

AFFIRMED.


text:
    Dorothy Sue STRAIT v. Harold E. DENNIS et al.
    No. 49818.
    Supreme Court of Mississippi.
    June 22, 1977.
    Thomas D. Lee, Forest, for appellant.
    Jerry L. Bustin, Forest, for appellees.
   Appeal from Chancery Court, Scott County; Osborn Guyton Idom, Chancellor.

Before GILLESPIE, C. J., PATTERSON, P. J., and SUGG, J.

AFFIRMED.


author: JONES, Justice. JONES, Justice.

text:
    Theo E. LEWIS and Elizabeth S. Lewis v. William Gary MOSS and World Bazaar et al.
    SC 2190.
    Supreme Court of Alabama.
    April 29, 1977.
    As Amended on Denial of Rehearing June 10, 1977.
    Warren L. Hammond, Jr. and Wayne Morse, Jr., Mobile, for appellants.
    Bert S. Nettles, Mobile, for appellees.
   JONES, Justice.

Where primary and derivative claims in a consolidated action result in a jury verdict awarding damages to the injured wife and a defendant’s verdict in the husband’s case; where the only defense in the husband’s suit is a general denial; and where the evidence is uncontradicted that the husband suffered some damages not claimed by his wife, is the husband entitled to a new trial on the ground of inconsistent jury verdicts? Yes; we reverse and remand.

We emphasize at the outset that our affirmative reply to the issue here presented is necessarily dependent upon the factual accuracy of each of the premises set out in the above stated question. Counsel for ap-pellees (defendants below) accepts premise No. 1 — -that the jury, in a single trial of the two claims awarded damages to the wife, and returned a defendant’s verdict in the husband’s case — and premise No. 2 — that, as to the issue of liability, there was no legal basis for different verdicts. He does not accept premise No. 3 — that there was uncontradicted evidence of some damage to the husband.

Before treating appellee’s contention with respect to this latter premise, we will first discuss two additional contentions, each of which assumes arguendo that our statement of the issue here presented is factually accurate.

Only Derivative Action, Not Primary Action, Appealed

First, it is contended that while “[t]he jury in this case returned verdicts of $5,243.12 for the wife on the primary action and for the defendants-appellees on the husband’s derivative action, ... the appellants have appealed only the unfavorable verdict in the husband’s action. Such an appeal of only one-half of the verdict results in an anomalous situation. The jury possibly could have concluded that the total damages to which both the husband and wife were entitled were $5,243.12, and then awarded it all in the wife’s case.”

The only authority cited for this proposition is an Illinois intermediate appellate court case of Kimmel v. Hefner, 36 Ill.App.2d 137, 183 N.E.2d 13 (1962), which contains the following language:

“We have no means of knowing whether the jury decided the allowance of $13,-000 to Mrs. Kimmel was sufficient benefit to Mr. Kimmel to offset his damages, or whether his claims seemed unreasonable to them .
“The jury may have considered the award to the wife as adequate to the family, and denied a separate recovery to the husband for that reason But if that were the fact, then it would be manifestly unfair to reverse and order a new trial as to the husband’s claim alone, without the possibility of adjusting the other verdict to fit.
“ ‘. . . [T]he award should not be disturbed, unless the objective evidence positively and unequivocally shows that damages, clearly proven, have been overlooked . .

We are unfamiliar with the rules of practice and procedure in Illinois, but this language of the Illinois Court of Appeals is strange and unsuited to our practice.

Our practice and procedure contains no requirement that, where two separate claims are consolidated in a single action, the prevailing party plaintiff must appeal as a prerequisite to the losing party plaintiff’s right of appellate review. Indeed, such a rule would presuppose that the losing party had control, or right of control, of the prevailing party — an obvious non-fact which the law will not assume. In the present posture of the instant case, we cannot deny this appellant appellate review on the ground that his husband’s primary action stands finally adjudicated without appeal.

Inconsistency Waived by Failure to Object

Next, appellees contend:

“If, in fact, the verdicts were inconsistent (which appellees emphatically deny), the appropriate course of action would have been for appellants to have made an objection prior to the jury’s discharge. The jury could have then been given appropriate instructions by the trial judge and the opportunity to correct any defect or inconsistency. That might well have resulted in the jury possibly prorating the $5,272.58 award between the two appellants or otherwise resolving the inconsistency.”

In support of this contention, appellees cite one Alabama case (Bradley v. Jones, 282 Ala. 331, 211 So.2d 465 (1968)), and a Delaware case (Hamilton v. Wfang, 221 A.2d 605 (Del.1966)). Both cases deal with the necessity to object to a verdict defective as to form, and both cases are inapposite here. It is a verdict correct as to form but adverse as to substance to which this appeal is directed. While the trial Court may direct appropriate efforts toward correcting inconsistent verdicts if called to his attention before the jury is discharged, we find no prohibition against raising the issue of inconsistent verdicts for the first time on motion for new trial.

Failure of Proof of Damages

Finally, counsel for appellees asserts:

“Insofar as the determination of appel-lees-defendants’ negligence is concerned, the reasoning of appellants-plaintiffs is correct. The defendants cannot be found negligent as to one plaintiff but not negligent to another where the act complained of is the same, assuming no question of contributory negligence. However, the negligence of the defendants is not the only element the plaintiff must prove to establish a cause of action which would entitle him to recovery. He must prove that he was injured thereby and, must also prove to the reasonable satisfaction of the jury the amount of damages he sustained.”

This is a forthright and accurate statement of the rule. It is stated in Smith v. Richardson, 277 Ala. 389, 171 So.2d 96 (1965):

“The burden is upon one claiming damages to establish the existence of, and the amount of such damages by competent evidence.”

Appellees maintain, however, “that appellants failed to prove the reasonable amount of the medical expenses that were related, if, in fact, any were related to the accident. Having thus failed to uphold their burden, an essential element of Mr. Lewis’ action is missing and a verdict for the appellees was therefore proper.”

Before addressing the quantitative evi-dentiary issue, we feel constrained to comment upon the Court of Civil Appeals’ opinion in Harden v. Alabama Great Southern R. R. Co., 45 Ala.App. 301, 229 So.2d 803 (1969), cited by appellees/defendants for the legal proposition that these husband and wife verdicts were “different but not inconsistent”. At page 305, 45 Ala.App., at page 806, 229 So.2d, it is stated:

“If damage to the husband in some measurable amount must necessarily follow proof of personal injury and right to recover by the wife, there would be no defense to the derivative action by the husband. It must follow that the husband would be entitled to the affirmative charge without hypothesis as to damages in some amount. This would be true in consolidated actions. It would then follow that right to recover, and damages in some amount, would be due in separate but nonconsolidated suits brought by the husband if it has been previously determined that the wife was entitled to recover for personal injuries. The matter of injury and right to damages would be res judicata and only the amount of damages would remain to be determined.
“We do not believe this to be the law nor should it be the law in this State.” [Emphasis added.]

The reasoning and conclusion in the first (unemphasized) portion of the above-quoted language from Harden is correct. As the general rule set out above makes clear, proof of existence and amount of damages is essential to recovery. Put another way, the husband’s right of recovery for consequential damages is not axiomatic where the jury returns a verdict in favor of the wife for personal injuries. Each claim contains its own elements and burden of proof— “ . . both proof that [plaintiff] has actually sustained a loss from defendant’s improper conduct and evidence from which the amount of such damage can be determined with a reasonable degree of accuracy.” United States v. U. S. Steel Corp., 371 F.Supp. 1045 (N.D.Ala.1973).

Likewise, the holding in Harden is patently correct. The Court found a total lack of proof of the husband’s only claim of damages — loss of consortium and society of his wife.

It is the second (emphasized) portion of this quoted language with which we disagree. The analogy of a single jury’s verdicts in consolidated primary and derivative actions with separate verdicts by two different juries is fallacious reasoning. This overlooks “opposite results” which are permissible in the case of two juries viewing the same transaction and “inconsistent verdicts” which are impermissible in the case of a single jury trying two claims in a consolidated action.

Res judicata is operatively precluded in the case of separate trials by lack of identity of parties. That two juries viewing the same transaction can come to opposite conclusions has long been recognized in Alabama. See, Judge Cates’ concurring opinion in United Security Life Insurance Company v. Clark, 40 Ala.App. 542, 115 So.2d 911 (1959).

More appropriate is the analogy of inconsistent verdicts against two separate defendants in respondeat superior cases. If the proof shows that the principal could have acted only through the named employee defendant, a verdict against the principal only is inconsistent and will be set aside. On the other hand, if the proof shows the employer acted through another agent or employee, such a verdict is not erroneous as being inconsistent. The Alabama Great Southern Railroad Company v. Evans, 288 Ala. 25, 256 So.2d 861 (1972).

In either case, whether the issue is one of damages or one of liability, proof of the legally essential elements is the touchstone in determining the permissible limits of inconsistency of jury verdicts. Simply stated, whether in separate or consolidated trials, the jury verdict or verdicts, when tested by the proof, will be set aside if found to be legally irreconcilable.

We return now to an application of this test to the proof in the instant case. It is important to note that the husband, Mr. Lewis, is claiming as his damages the medical expenses incurred as a result of the injuries suffered by his wife in the accident. This claim for special damages was not made by the wife. Investigation of the transcript reveals that Mr. Lewis incurred the following expenses as a result of his wife’s injuries:

(1) Mobile Infirmary (first hospitalization) $ 1,873.37
(2) Mobile Infirmary (second hospitalization) 2,520.06
(3) Dr. John E. Semon 610.00
(4) Drugs 260.00

This evidence was submitted without objection at the trial of the law suit. Mr. Lewis then elicited from Dr. Semon, who placed Mrs. Lewis in the hospital, that, in his opinion, these expenses were “medically necessary.” The certificate accompanying the hospital records attests to the reasonableness of the hospital charges. Tit. 7, § 383(3), Code.

To be sure, the jury was free to disbelieve all the plaintiffs’ claims: that the defendant was negligent; or that Mrs. Lewis suffered any injury proximately resulting from the accident. By its verdict, however, the jury found that she suffered injuries proximately resulting from defendant’s negligence.

We have been cited to no Alabama cases, and we find none, where inconsistent judgments involved uncontradicted special damages. This is the important factor that distinguishes the instant case from Harden v. Alabama Great Southern R. R. Co., 45 Ala.App. 301, 229 So.2d 803 (1970). In Harden, the husband’s claim for loss of consortium and a $65 doctor bill for psychiatric aid was denied by the jury, while, at the same time, it allowed the wife’s claim for injuries to her nervous system. In discussing the psychiatrist’s bill, the Harden Court stated:

“In the case at bar, no showing was made in the trial court that the $65.00 Mr. Harden paid to the psychiatrist who treated his wife was a reasonable expense or charge. The charges of a psychiatrist are not matters of common knowledge, but rather are matters for expert opinion. No expert testified as to the reasonableness of the charge for medical services rendered.”

In this case, however, there was expert testimony, aided by Tit. 7, § 383, Code, that these damages were reasonable and necessary; thus, the Harden rule is inapplicable.

More appropriate, by way of analogy, are the cases of Smith v. Richardson, 277 Ala. 389, 171 So.2d 96 (1965), and Lindsay v. Hackney, 283 Ala. 372, 217 So.2d 238 (1968). In each of these cases, a jury verdict was rendered in favor of the father under his derivative claim for losses incurred as a result of injuries to his minor child. In each case, because the jury verdict was in favor of the defendant in the child’s suit (consolidated with that of the father’s suit), the parent’s judgment was set aside on appeal as inconsistent.

The same legal principle of irreconcilable verdicts, applied in Smith and Lindsay, requires the Court to reverse and remand this case for a new trial.

REVERSED AND REMANDED.

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

JONES, Justice.

ON REHEARING

Counsel for appellee, on Application for Rehearing, points out that on original deliverance the Court’s opinion incorrectly refers to the husband’s and wife’s claims as separate suits which were consolidated for trial. Appellee’s brief correctly asserts that “the plaintiffs themselves merged their separate claims into one action . . .”

The opinion is corrected accordingly. Application for Rehearing is overruled.

OPINION CORRECTED AND APPLICATION FOR REHEARING IS OVERRULED.

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


author: MADDOX, Justice.

text:
    MOLTON, ALLEN AND WILLIAMS, INC., a corporation v. ST. PAUL FIRE AND MARINE INSURANCE CO.
    SC 2006, SC 2007.
    Supreme Court of Alabama.
    June 3, 1977.

      Frank M. Bainbridge and William O’Neal Whitt, Jr., Birmingham, for appellant.
    Lyman H. Harris and Charles C. Pinck-ney, Birmingham, for appellee.
   MADDOX, Justice.

This appeal involves the construction of a “pollution exclusion” in a liability insurance policy. Plaintiffs, landowners living adjacent to a real estate development, filed a class action against defendants, Woodhaven Lakes Estates, Molton, Allen and Williams, Inc., Garrison Construction Company, and other fictitious parties, in which they alleged that the defendants, in developing a subdivision, negligently caused sand and dirt to pass from the subdivision onto their property. Another similar action was also filed against the developers and it was consolidated with the class action suit. Developer, Molton, Allen and Williams, filed a third-party complaint in both actions against its public liability insurer, St. Paul Fire and Marine Insurance Company, seeking indemnity under the terms of two contracts. The third-party actions were consolidated and tried upon a stipulation of facts and other designated exhibits, including a jar of the “sand” or “mud.” The trial court entered a final judgment on the third-party claims, finding that St. Paul is not due to afford the developer a defense or pay any judgment obtained against it because a “pollution” exclusionary clause in each policy is effective to exclude insurance coverage for the liability, or potential liability, of the developer arising out of its activities that are the subject matter of the principal actions. The circuit court ordered the third-party complaints against St. Paul to be dismissed with prejudice. The trial court, pursuant to Rule 54(b), determined that there was no just reason for delay, and directed the entry of a final judgment on the third-party claims. The developer appealed. We reverse.

STATEMENT OF THE FACTS

In the early spring of 1972, Molton, Allen and Williams began a real estate development (Woodhaven Lakes Subdivision) on land adjacent to plaintiffs. Most of the Woodhaven Subdivision property is located on a mountain that rises above three lakes and the natural flow of surface water during rainfall is from the land of the Woodha-ven development onto the land of the plaintiffs. As the natural flow of surface water is dictated by the terrain, rainwater and surface water pass from the Woodhaven land onto the plaintiffs’ land in natural depressions, wet-weather streams and natural streams. Beginning in 1972, some or all of the defendants began constructing roads in connection with the Woodhaven development. Approximately eleven miles of roads were cleared and cut, and drainage ditches were built alongside the roads. The roads remained unpaved at least until the spring of 1974, when the second principal action was filed.

The earth in the Woodhaven Subdivision is composed in part of sandstone. During the delay between the time the roads were physically located and the date the roads were paved, rain fell upon and flowed across the roads, adjacent ditches, and cuts and fills caused by the construction. It is alleged that the rain and surface water washed or carried the sandstone and sandstone-type materials found naturally in the earth to break down into sand and that this material was deposited onto the plaintiffs’ property and into the three lakes, thus destroying the beauty of plaintiffs’ property and the usefulness and beauty of the lakes.

St. Paul issued two policies of insurance to Molton, Allen and Williams which afforded to it property damage insurance. The original policy (No. 601 NA 2839) had an effective date of May 4, 1972. The second poliey (No. 601 NA 3485) had an effective date of May 4, 1973.

The disputed policy provisions of the original and second poliey, respectively, read:

“It is agreed that the Insuring Agreement to which this endorsement is attached does not apply to bodily injury or property damage arising out of the discharge, dispersal, release of escape of smoke, vapors, soot, fumes, acids, alkalis, toxic chemicals, liquids or gases, waste materials, or other irritants, contaminants or pollutants into or upon land, the atmosphere or any watercourse or body of water; but this endorsement does not apply if such discharge, dispersal, release or escape is sudden and accidental and is neither expected nor intended from the standpoint of the insured.”
‡ ‡ ‡ ‡ * ‡
“This Insuring Agreement does not apply:
“To bodily injury or property damage arising out of the discharge, dispersal, release or escape of smoke, vapors, soot, fumes, acids, alkalis, toxic chemicals, liquids, or gases, waste materials or other irritants, contaminants or pollutants into or upon land, the atmosphere or any watercourse or body of water; but this exclusion does not apply if such discharge, dispersal, release or escape is sudden or accidental.”

ISSUES

1. Whether or not under the terms of either “pollution exclusion” in the policy of insurance here' involved, the washing of natural materials from the earth, such as sand, from a construction site, down wet-weather streams by virtue of rainfall, is an intentional, expected and nonaccidental discharge, dispersal, release or escape of smoke, vapor, soot, fumes, acids, alkalis, toxic chemicals, liquids or gases, waste materials or other irritants, contaminants or pollutants.

2. Whether or not under the terms of a “pollution exclusion” in a policy of insurance the washing of natural materials from the earth, such as sand, down wet-weather streams by virtue of rainfall from a real estate development is an intentional act from the standpoint of the insured performed with the specific intent to cause harm to a third party. .

Molton, Allen and Williams contends that exclusions in insurance . policies are construed most strongly against the insurer. Molton, Allen and Williams points out that “pollution exclusions” are relatively new to the insurance industry and research reveals that there are no decisions which construe this type of pollution exclusion under this factual situation. Thus, this is a case of first impression, not only in Alabama, but perhaps for the country.

Molton, Allen and Williams contends that the washing of sand down wet-weather streams by virtue of rainfall into the lakes owned by the plaintiffs was not an intentional act resulting in an intentional injury within the meaning of the pollution exclusions. Molton, Allen and Williams further contends that the courts, in construing “intentional act” exclusion clauses have consistently held that not only must the act of the insured be done intentionally to avoid coverage, but it also must be done with the specific intent to cause harm to a third party. Molton, Allen and Williams asserts that the burden of proof is on St. Paul to establish its defense that Molton, Allen and Williams’ claim is barred by the exclusionary provisions of the policies. St. Paul, on the other hand, contends that the language of the policy does not require that there be an element of conscious intent to damage particular property.

Molton, Allen and Williams argues that the “pollution exclusions” contemplate only the discharge of foreign matter or industrial refuse into the environment and upon reading the pollution exclusion as a whole, it is clear that these exclusions were not intended to cover the unintentional washing of sand by virtue of rainfall into plaintiffs’ lakes. Molton, Allen and Williams’ theory is that the exclusions are directed solely to intentional discharges by an industrial operation of foreign matter or industrial refuse into the environment. Molton, Allen and Williams says that the term “sand” cannot be construed to fall within a general class of substances, i. e., “irritants, contaminants or pollutants,” and that the doctrine of ejmdem generis should be applied to determine whether or not sand falls within the general class of foreign material contemplated by the exclusion clauses.

St. Paul counters that the general terms of the pollution exclusion should not be limited to a description of industrial wastes. St. Paul further says that a fair reading of the exclusions requires the conclusion that mud, soil, sand, and natural materials from the earth, which are alleged to have damaged and destroyed property, constitute “irritants, contaminants, or pollutants” as those terms are generally understood. In reply, Molton, Allen and Williams asserts that if it had been the intent of St. Paul to give the terms, “irritant, contaminant or pollutant” the broadest possible meaning, it could have done so by omitting from the pollution exclusion the terms which immediately precede them. However, by expressly including within the pollution exclusion specific terms such as “smoke, vapors, soot, fumes, acids, alkalis, toxic chemicals, liquids or gases, waste materials,” and following those specific terms with general terms, it means that the general terms are necessarily limited to the same kind and class as the substances specifically enumerated. In reply, St. Paul maintains that it should not be expected to list every substance that could conceivably pollute in the exclusion clause because such an exclusion would become unwieldly.

St. Paul also asserts that the alleged damage was caused by erosion, and, therefore, it is obvious that this damage did not occur suddenly. St. Paul points out that the flow of mud and sand onto plaintiffs’ land and into the lakes lasted at least two years. St. Paul contends that the pollution in the instant case was the natural and ordinary consequences of the actions of Molton, Allen and Williams and other defendants and therefore, the erosion was foreseeable. Accordingly, St. Paul’s position is that the pollution exclusions are applicable and therefore there is no insurance coverage of the liability of Molton, Allen and Williams that may be imposed as a result of Molton, Allen and Williams’ activities on the Woodhaven Subdivision.

As Molton, Allen and Williams points out, the “pollution exclusion” clauses are relatively new. The pollution exclusion clauses in the policies under review are almost identical to Standard Provisions for General Liability Insurance. See Long, the Law of Liability Insurance, Vol. 3, 1976, App. 30, App. 58, and App. 68, where the author sets out the clause in question and comments on it. The Standard clause in Long’s work reads as follows:

“ * * * (f) to bodily injury or property arising out of the discharge, dispersal, release or escape of smoke, vapors, soot, fumes, acids, alkalis, toxic chemicals, liquids or gases, waste materials or other irritants, contaminants or pollutants into or upon land, the atmosphere or any watercourse or body of water, but this exclusion does not apply if such discharge, dispersal, release or escape is sudden and accidental;
“Comment
“Since the pollution exclusion is now part of the policy, the pollution exclusion endorsement is not required.”

The comment is as follows:

“Pollution: Exclusion (f) is new. It eliminates coverage for damages arising out of pollution or contamination, where such damages appear to be expected or intended on the part of the insured and hence are excluded by definition of ‘occurrence.’ Coverage is afforded for damages caused by pollution or contamination if the discharge, dispersal, release, or escape is sudden and accidental. (See N.Y. Ins. Law, Sec. 46, Subdiv. 13 and 14 as amended 1971)”.

As noted, Molton, Allen and Williams claims that the pollution exclusion clauses here, strictly construed, were intended to cover only industrial pollution and contamination. We agree with that position. We do not believe that the insured real estate developer, by a reading of the exclusion clause would reasonably expect that the alleged damage caused by its construction activity would be included in the descriptions set out in the “pollution exclusion” clause. In other words, while a liberal construction of the “pollution exclusion” clause would include the damage allegedly caused by Molton, Allen and Williams, the clause is not free of ambiguity. It is believed that the intent of the “pollution exclusion” clause was to eliminate coverage for damages arising out of pollution or contamination by industry-related activities. The use of specific industry-related irritants, contaminants and pollutants seem to indicate this was the reason for the exclusion. We judicially know that during the last decade, much emphasis has been placed upon protecting the environment. The pollution exclusion was no doubt designed to decrease the risk where an insured was putting smoke, vapors, soot, fumes, acids, alkalis, toxic chemicals, liquids or gases, waste materials or other irritants, contaminants or pollutants into the environment. In any event, the clause here is ambiguous.

The ambiguities, therefore, must be interpreted against the party drawing the contract if the circumstances surrounding the contract do not make the terms clear. U. S. F. & G. v. Elba Wood Products, Ala., 337 So.2d 1305 (1976).

We do not hold that construction activity and real estate development cannot be “polluting.” In an article entitled “Effect of Waste Discharge Regulations on Real Property Development,” Professor Nicholas H. White (Real Property, Probate and Trust Journal, Vol. 11, No. 3, Fall 1976, p. 490) suggests that real property development may be a “nonpoint source” of pollution. He writes:

“In considering the impact of the FWPCA on real property development, it is useful to distinguish between the control of ‘point sources’ and ‘nonpoint sources’ of water pollution. ‘Point source’ is defined in the FWPCA:
The term ‘point source’ means any discernible, confined and discrete conveyance, including but not limited to any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling stock, concentrated animal feeding operation, or vessel or other floating craft, from which pollutants are or may be discharged.
‘Nonpoint sources’ are not expressly defined in the FWPCA, but guidelines issued by the United States Environmental Protection Agency (EPA) state:
Nonpoint sources, while not defined in the Act, are, by inference, the accumulated pollutants in the stream, diffuse runoff, seepage, and percolation contributing to the degradation of the quality of surface and ground waters. They include the natural sources (seeps, springs, etc.) and millions of small point sources that presently are not covered by effluent permits under the National Pollution Discharge Elimination System.
“The regulation and control of both point sources and nonpoint sources are usually necessary to attain desired water quality goals. Point sources are much easier to identify and control, and their regulation and control may have both direct and indirect effects on land use decisions. The regulation and control of nonpoint sources are usually more directly related to land use decisions, — i. e., land use controls are foremost among the ‘tools’ that can be utilized to control non-point sources of water pollution.” [Footnotes omitted.]

Whether the activity here was covered under either federal or state law, as those laws regulate environmental pollution, is not the question. The question is whether the “pollution exclusion” clause applies. We hold that it does not. By so holding, however, we should not be understood as holding that sand or mud could never be an irritant, contaminant or pollutant, or that the insurance company could not write an exclusion clause which would cover the activity here involved. We hold only that this policy clause, under the stipulated facts of this case, does not eliminate coverage.

REVERSED AND REMANDED.

TORBERT, C. J., and FAULKNER, SHORES and BEATTY, JJ., concur.