author: LEMMON, Judge. BEER, Judge

text:
    Peter SONIAT and Deanne Soniat v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY et al.
    No. 7440.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 21, 1976.

      Cockfield & Gravolet, James C. Cockfield, New Orleans, for plaintiffs-appellants.
    Porteous, Toledano, Hainkel & Johnson, C. Gordon Johnson, Jr. and James S. Thompson, New Orleans, for defendants-ap-pellees.
    Before SAMUEL, REDMANN, LEM-MON, MORIAL and BEER, JJ.
   LEMMON, Judge.

This appeal by Deanne Soniat raises issues as to (1) the duty of a motorist to his passenger upon entering an uncontrolled intersection with another vehicle approaching from the left, (2) the imposition of penalties and attorney’s fees against an uninsured motorist carrier who fails to pay any reasonable amount on the claim when the uninsured motorist is obviously liable, and (3) the sufficiency of the damages awarded.

The two-car collision occurred on a clear, dry afternoon at the intersection of Gallier and Johnson Streets, both of which were two-way, two-lane streets. There were no traffic control devices at the intersection.

Miss Soniat was a passenger in her father’s car which at the time was being driven by Justin Benit (whom she subsequently married). Benit, traveling north on Gallier, collided with a car approaching from his left, which was being driven in an easterly direction on Johnson Street by Robert Smith, an uninsured motorist.

Miss Soniat sued Smith and joined her father’s insurer, State Farm Mutual Automobile Insurance Company, both under its liability coverage for Benit’s negligence and under its uninsured motorist coverage. After a trial on the merits judgment was rendered against Smith for all damages and against State Farm to the limits of its uninsured motorist coverage. Miss Soniat appealed from the dismissal of her claim against State Farm under its liability coverage for Benit’s negligence.

At trial Benit testified: He was traveling about 30 miles per hour and looked to his right as he approached the intersection, letting his foot off the gas pedal; he then looked to his left and saw Smith’s car, at which time he (Benit) was 15 to 20 feet back from the intersection and Smith was about even with the sidewalk and not yet into Gallier Street; and he then applied his brakes, but the front of his car struck the right front side of Smith’s car, generally in the middle of the intersection.

Miss Soniat generally confirmed Benit’s version of the occurrence. Smith did not appear at trial.

The investigating officer testified that Benit stated he looked to the right and then proceeded into the intersection, which somewhat contradicted Benit’s testimony that he looked in both directions. The officer measured 19 feet of skid marks by Benit’s car and 13 feet by Smith’s.

Liability

The statutes requiring that, when two vehicles enter an intersection at approximately the same time, the driver on the left yield the right of way to the driver on the right establish only the duty of the motorist on the left. The undefined duty of the motorist with the so-called directional right of way is a legal quagmire in which our intermediate courts have floundered, with some decisions effectively according such a motorist an unqualified right of way.

This court correctly held in Gutelius v. Phoenix Ins. Co., 266 So.2d 717 (La.App. 4th Cir. 1972) that these statutes neither convert one street into a superior one, having an unqualified right of way, nor provide mechanical rules for determining liability after an accident by the mere direction of vehicles. Gutelius recognized not only that a greater degree of care is required of a motorist with only a directional right of way than of one with an unqualified right of way, but also that every motorist who approaches an uncontrolled intersection with a street of equal dignity has some degree of duty, depending on the circumstances, to proceed cautiously and to determine before entering the intersection whether he can safely proceed across. Fault in a collision is determined by judging the conduct of each motorist under all the circumstances of the particular case, including consideration of the so-called directional right of way. See also Smith v. Borchers, 243 La. 746, 146 So.2d 793 (1962).

The determination in this case involves virtually undisputed facts. While Benit’s testimony must be reviewed carefully because he knew at trial that his then wife would benefit by the greater insurance coverage if he were found to be negligent, his testimony was at least consistent with, and perhaps less incriminating than, his spontaneous statement to the investigating officer at an unsuspicious time.

More important in this case is the mute evidence of Benit’s skidding for 19 feet before colliding with some force (enough to cause “heavy damage” to both cars) into the side of Smith’s car in the center of the intersection. This physical evidence indicates that Benit did not look to his left and slow his speed sufficiently, at a point far enough in advance of the intersection, to be in a position to determine before entering the intersection whether he could make the crossing safely. Had Benit looked to his left earlier or brought his car under control earlier, as he had a duty to do in the exercise of reasonable care due to his passenger, he could have avoided the accident. Thus, whether or not Benit’s conduct discharged his arguably lesser duty to the unquestionably negligent driver approaching from the left, his conduct was substandard when measured against the duty of reasonable care due to his guest passenger.

We accordingly modify the judgment as to Benit’s liability and hold that the negligent acts or omissions by Smith and Benit were concurrent legal causes of the accident.

Damages

In addition to $120.30 in lost wages and $1,806.75 in medical expenses, the trial court awarded general damages to Miss So-niat as follows:

Injury to teeth $ 2,000.00 Injury to jaw and facial lacerations 1,500.00 Injury to knee 8,500.00 Total $12,000.00

In the accident Miss Soniat sustained three fractured teeth, which required smoothing, filling and capping; temporal mandíbula joint syndrome, which, caused intense jaw pain and earache for several weeks; a laceration under the chin which required four sutures and left minimum scarring; a puncture of the tongue; and a severe laceration of the knee which required seven sutures and temporary insertion of a drainage tube. The trauma to the knee also caused a torn cartilage which required surgical repair and left Miss Soni-at with a 5% permanent residual disability of the leg.

Immediately after the February 11, 1973 accident Miss Soniat was confined to bed for about two weeks. After the surgery two weeks later she was incapacitated for almost a month and returned to work on crutches. (Her loss of wages was minimal because her employer gratuitously paid her salary during most of her absence.) The orthopedic surgeon treated her through December 3, 1973, at which time she still complained of aching after walking. The doctor, however, expected a complete return to all normal activities.

We have examined the record and find no abuse of the much discretion accorded the trial court by C.C. art. 1934(3).

Penalties and Attorney’s Fees

Miss Soniat’s counsel testified that, prior to filing suit, he discussed the claim and the question of penalties with State Farm’s supervisor, who opined that Smith was solely liable and offered to pay $5,000.00 (the maximum limit under uninsured motorist coverage), but only on the condition that Miss Soniat also compromise her demand under the liability coverage. This testimony was not contradicted.

R.S. 22:658 condemns an insurer to pay penalties and attorney’s fees when it arbitrarily refuses to pay a claim within a specified time. The statute is not applied when the insurer has a reasonable basis to defend to claim. Here, State Farm had been served with affidavits constituting pri-ma facie proof that Smith was uninsured [see R.S. 22:1406D (6)(b)], and all of the facts available to State Farm compelled the conclusion that Smith was uninsured and was at least concurrently liable. There was no reasonable basis for a contrary conclusion (and indeed the uncontradicted evidence was that this was State Farm’s supervisor’s conclusion). Since the uninsured motorist coverage of State Farm’s policy applied whether or not there was an insured co-tortfeasor, and since State Farm has asserted no reasonable basis for denial of the claim under this coverage, we conclude the denial was arbitrary.

State Farm argues merely that is is absolutely entitled to a judicial determination of liability of the uninsured motorist, citing Bubrig v. Phoenix of Hartford Ins. Co., 306 So.2d 60 (La.App. 4th Cir. 1974). The facts in the Bubrig case, however, provided a reasonable basis for questioning liability; the facts in this case do not, and any denial of this claim solely on the basis of liability of the uninsured motorist must be deemed unreasonable.

We conclude that, since State Farm’s policy afforded uninsured motorist coverage to Miss Soniat whether or not Benit was liable, and since State Farm could not reasonably deny its insured’s claim on the grounds that Smith was not liable or not uninsured, State Farm was obliged by R.S. 22:658 to tender unconditionally to its insured the amount that it reasonably deemed to be due in satisfaction of her claim under that coverage.

In this respect we reject State Farm’s contention that it did tender the amount due under the uninsured motorist coverage. An offer to compromise an entire claim, only part of which is reasonably in dispute, does not constitute an unconditional tender of payment of that portion which is unquestionably due. Adler v. Hospital Service Assn. of N. O., 278 So.2d 177 (La.App. 4th Cir. 1973). State Farm’s offer was merely that — an offer — and did not discharge its obligation to pay unconditionally the amount reasonably determined to be due under its uninsured motorist coverage.

State Farm paid unconditionally only two medical bills totaling $532.50, out of total undisputed medical bills exceeding $1,800.00. Had State Farm unconditionally tendered the unquestioned special damages plus some reasonable amount in payment for the general damages, then the penalty provision would not apply. Since State Farm had no reasonable basis for its failure to tender a reasonable amount in unconditional payment of its obligation under the policy, we accordingly assess the statutory penalty of 12% of $4,467.50 ($5,000.00 less $532.50 paid.)

As to the amount of attorney’s fees, Miss Soniat’s attorney testified that he spent, after demand and prior to trial, a total of 41 hours on the case. The record shows that he participated in trial and thereafter perfected the appeal and apparently did the necessary preparation to present two briefs and an oral argument. We cannot, however, attribute all of this work to collection of the amount due under the uninsured motorist coverage, which was a maximum of $5,000.00. Since a reasonable payment under that coverage would have approached or equaled $5,000.00, we award attorney’s fees of $1,000.00.

Decree

For these reasons the judgment of the trial court is affirmed in part and amended and recast in part as follows:

IT IS ORDERED, ADJUDGED AND DECREED that there be judgment in favor of Deanne Soniat and against Robert Smith and State Farm Mutual Automobile Insurance Company in solido in the sum of $13,927.05, plus interest from the date of judicial demand until paid and all costs, with a credit to State Farm Mutual Automobile Insurance Company for $532.50 previously paid.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that there be judgment in favor of Deanne Soniat and against State Farm Mutual Automobile Insurance Company for a penalty of $536.10 and attorney’s fees in the amount of $1,000.00.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that there be judgment in favor of Peter G. Soniat and against Robert Smith in the sum of $640.00, plus interest from the date of judicial demand until paid, and all costs.

AMENDED AND RECAST IN PART, AFFIRMED IN PART.

BEER, Judge

(dissenting).

I respectfully dissent.

I am not in full accord with the majority’s description of Benit’s testimony and, accordingly, submit my description as follows:

He was proceeding north on Gallier Street at a speed of about 30 MPH, although he had, just prior to the collision, slowed down to about 25 MPH as he passed an adjacent playground. His approach to the intersection in question was unusual as I perceive it from the transcript. Essentially, he describes his actions as follows: he looked first to his right,' saw the way was clear, took his foot off of the accelerator, looked to his left, saw Smith’s car (approaching the intersection) for the first time and observed the Smith car to be slowing down, but, nevertheless, applied his brakes. A split second later, the collision took place.

Other factors not noted in the majority opinion are as follows:

Officer Ronald Conlan, of the New Orleans Police Department, determined, from the relative location of the debris and other physical factors, that the collision apparently occurred just about in the middle of the intersection and damaged the right front side of the Smith vehicle and the front of the Soniat vehicle. He noted that both streets were blacktopped and of equal width.

Smith did not testify.

From the manner in which the district court judgment is framed, it is apparent that the trial judge concluded that the accident resulted solely from the negligence of Smith. State Farm is cast only in its capacity as the uninsured motorist insurer of the Soniat vehicle and not as the omnibus insurer of Justin Benit, the authorized driver of the Soniat automobile. I view this to indicate that the trial court made a factual determination that the accident was the proximate result of Smith’s negligence.

Deanne Soniat (Benit) vigorously contends that the accident was the result of negligence on the part of both drivers. Since the amount awarded to her for special and general damages is in excess of the uninsured motorist policy limit of $5,000 and since Smith is apparently unable to respond in payment, her vigorous efforts to reverse the judgment, insofar as Benit’s alleged negligence is concerned, are quite understandable.

Yet, the testimony of Mrs. Benit regarding the facts of the accident must, necessarily, be closely scrutinized, for when this case came to trial in the district court, she had married Justin Benit.

Thus, while I agree with Judge Red-mann’s opinion in Gutelius, I am, in this case, more persuaded by those cases which require us to attribute great weight to the trial court’s factual determinations and to accept them as binding upon us unless manifestly erroneous.

This is not to suggest that either Mr. Benit or Miss Soniat (now Mrs. Benit) calculatedly altered or in any way modified their testimony in order to put into play factors which could result in greater exposure of the insurer. Yet, the many subtle nuances of expression, voice modulation and appearance on the witness stand which were all available to the trial judge and are not available to us could have indicated various subconscious persuasions vital to a credibility determination or, more important, as a signal to accept or reject certain testimony. Such factors would play a part in those credibility determinations that would ultimately lead to the trial judge’s final conclusion that Benit was, in fact, free from fault and that the accident resulted solely from Smith’s negligence. This conclusion is, I believe, strengthened further by the fact that the record is barren of any testimony from Smith, the other driver. Since no witnesses testified regarding the actual moment of collision except Benit and the young lady who subsequently became his wife, the trial court had no other source from which to draw corroborative or contradicting evidence. Thus, the importance of that court’s appraisal of the testimony is heightened.

I believe that in the particular circumstances of this case, the manifest error rule has greater force than the applicability of the legal conclusion correctly set forth by Judge Redmann in Gutelius.

I next consider the correctness of the trial court’s refusal to impose attorney fees and penalties upon State Farm for its alleged failure to timely tender the total amount of its uninsured motorist coverage under LSA-R.S. 22:658.

Whether the company’s refusal to pay was so lacking in foundation for cause as to fall within the scope of this provision is primarily a question of fact. Cryer v. Gulf Ins. Co., 276 So.2d 889 (La.App. 1st Cir., 1973). Moreover, because of its penal nature, the statute is to be strictly construed. Blackwell v. Daigle, 317 So.2d 18 (La.App. 3rd Cir., 1975).

Notwithstanding the fact that State Farm had been served with affidavits indicating that Smith (as well as Spencer) was uninsured on the date of the accident, there still remained in serious dispute the question of the proximate negligence of Smith and Benit and the consequent type of liability (tort or contractual) of State Farm. Appellant’s counsel contends, in brief,, that “. . . Juan Spencer and Robert Smith, did not defend themselves at the trial personally or through counsel. The investigation of the accident from the outset attests to the negligence of the uninsured motorist and therefore his liability was estáblished.”

In Bubrig v. Phoenix of Hartford Ins. Co., 306 So.2d 60 (La.App. 4th Cir., 1970), we observed that it was necessary that a plaintiff seeking recovery under the uninsured coverage provisions of the policy prove the uninsured status and the negligence of the defendant. In that case, the defendant filed an answer denying the negligence of his son (the actual driver) and denied his uninsured status. When the trial began, stipulations were entered indicating there was no insurance coverage for the defendant or his son, but the case went to trial on the issue of liability. We stated that: . . the plaintiff has the burden of proof, and it was encumbent upon the plaintiff to prove these contested issues, including the uninsured status of the defendant. . . .” Then, turning to the issue that concerns us here, we stated:

“Furthermore, the record supports the trial judge’s conclusion that the accident was caused by Wilkerson . . . But, it was not arbitrary and unreasonable for Phoenix to require plaintiff to prove her case and to decline payment in the meantime. Thus, imposition of statutory penalties and attorneys’ fees was not warranted.”

I find no manifest error in the trial court’s apparent determination that the actions of State Farm were not arbitrary and capricious since there was a dispute regarding the proximate negligence of Smith and/or Benit. Furthermore, even though it was apparent that Deanne Soniat had experienced a reasonably serious injury, there was no absolute indication that its “value” was, without doubt, the total of the uninsured motorist coverage.

Accordingly, I respectfully dissent.

      . The discrepancy, if any, was an insignificant one, since Benit obviously looked to his left in order to perceive the necessity to apply his brakes. The problem is whether he' looked sufficiently in advance of the intersection and whether he had his vehicle under control before entering the intersection.

      . See R.S. 32:121, which provides:
      “A. The driver of a vehicle approaching an intersection shall yield the right of way to a vehicle which has entered the intersection from a different highway.
      “B. When two vehicles enter an intersection from different highways at approximately the same time, the driver of the vehicle on the left, shall yield the right of way to the vehicle on the right.
      “C. The right of way rules declared in Subsections A and B are modified at through highways and otherwise as hereinafter stated in this Part. Acts 1962, No. 310, § 1.”
      See also New Orleans City Code, 1956, § 38-99, which provides:
      “(a) Upon entering or crossing a boulevard from any street on which no traffic-control sign or signal is erected, the driver of a vehicle or operator of a streetcar shall proceed cautiously, yielding to vehicles which are within the intersection or approaching so closely as to constitute an immediate hazard.
      “(b) The driver of a vehicle approaching an intersection shall yield the right-of-way to a vehicle which has entered the intersection from a different highway.
      “(c) When two vehicles enter an intersection from different highways at approximately the same time, the driver of the vehicle on the left shall yield the right-of-way to the vehicle on the right.
      “(d) The right-of-way rules declared in paragraphs (c) and (b) are modified at through streets and otherwise as stated in this Chapter. (M.C.S., Ord. No. 3816, § 1, 6-6-68.)” (Emphasis supplied)

      . This total amount of $13,927.05 is itemized in the reasons for judgment. However, the judgment, apparently prepared by counsel, fails to hold Smith liable in solido for $5,000.00, decreeing him liable only for $8,927.05 while separately holding State Farm liable for $5,000.00 (minus $532.50 paid). We accordingly recast the judgment to correct this oversight.
      That portion of the judgment against Smith awarding $640.00 in property damage to Miss Soniat’s father has not been questioned in this appeal.

      . Under the uninsured motorist coverage of this policy State Farm contracted:
      “(t)o pay all sums which the insured or his legal representative shall be legally entitled to recover as damages from the owner or operator of an uninsured automobile because of bodily injury, sickness or disease, including death resulting therefrom, hereinafter called ‘bodily injury,’ sustained by the insured, caused by accident and rising out of the ownership, maintenance or use of such uninsured automobile. . .
      Nowhere in the policy was there a provision which limited this coverage to a situation in which the uninsured motorist was solely liable.
      The policy does contain the following limiting provision which applies when there is concurrent entitlement to recovery under the liability coverage of the policy:
      “Any payment made under this Part to or for any insured shall be applied in reduction of the amount of damages which he may be entitled to recover from any person insured under Coverage A.”
      Therefore, this policy specifically recognizes that when there is concurrent liability for an accident in which the cotortfeasors are an uninsured motorist and a person insured under the policy’s bodily injury liability coverage, payment is due under the uninsured motorist coverage, although such payment may subsequently be applied in reduction of the amount due under the bodily injury liability coverage.

      . State Farm’s unreasonableness in this case was accentuated by the fact that it was certain to be liable to Miss Soniat in the same amount (subject to limits of liability) under one coverage or the other, or both.

      . The undisputed medical evidence and expenses indicates that an amount at or near the $5,000.00 limits of coverage should have been tendered unconditionally. Accordingly, we use the sum of $5,000.00 in assessing penalties and attorney’s fees, although we note that the imposition possibly could have been avoided by the unconditional tender of some lesser amount (necessarily an amount in excess of the undisputed medical expenses and lost wages) as the amount deemed by State Farm in good faith to be the amount reasonably due in satisfaction of its obligation.


source: Caselaw Access Project

author: DOMENGEAUX, Judge.

license: Public Domain

text:
    Rita Moreau RICHARD, Plaintiff and Appellee, v. Melvin Lee RICHARD, Defendant and Appellant.
    No. 5723.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 21, 1976.

      Edwards, Stefanski & Barousse by J. Michael Stefanski, Crowley, for defendant-appellant.
    Alvis J. Roche, Lake Charles, for plaintiff-appellee.
    Before HOOD, DOMENGEAUX and HUMPHRIES, JJ.
   DOMENGEAUX, Judge.

Plaintiff-appellee, Rita M. Richard, filed this suit for separation against her husband, Melvin L. Richard, on the grounds of cruel treatment (LSA-C.C. 138(3)). Mr. Richard filed an answer in the form of a general denial and, as plaintiff in reconvention, prayed for a separation against his wife on the grounds of abandonment (LSA-C.C. 138(5)).

From a judgment which granted a separation in favor of the wife, the husband has appealed to this court, alleging that the lower court erred in (1) granting the separation to his wife on the grounds of cruel treatment, and (2) that if cruel treatment was involved, both parties were equally at fault, thus requiring the dismissal of both plaintiff’s suit and his own reconventional demand.

Mr. and Mrs. Richard were married on December 13, 1954. Insofar as the record shows, the difficulties between the parties began to emerge about April, 1975, following surgery performed upon Mrs. Richard for the placement of a “pacemaker” in her body.

The evidence presented by Mrs. Richard shows that her husband commenced a steady course of harassment designed to force her to leave the matrimonial domicile. He would go out practically every night, returning in the wee hours of the morning without stating his whereabouts or the reasons for his leaving. He told her that if she was not satisfied she could leave. Some four or five months prior to the separation, Mr. Richard, in a fit of anger, drove his fist through a closet door in his wife’s presence. He ridiculed her to the point of suggesting that she no longer possessed her womanly propensities because of a hysterectomy which she had undergone previously. Finally, on November 1, 1975, in the afternoon, defendant-husband had gone to the bedroom presumably to rest, after having been out late the night before. The bedroom contained twin beds and the family telephone was situated between the beds. On that particular occasion Mrs. Richard was using the telephone, and after she concluded her conversation Mr. Richard grabbed the phone, threw it on the floor, and violently pulled Mrs. Richard by the hair with such force that some of the hair was pulled out of the scalp, causing the wife much pain. Mr. Richard then pointed his fist at his wife threatening to strike her if she complained. As a result of defendant’s conduct, Mrs. Richard left the family home on November 4, 1975.

There is corroborating testimony to the effect that on November 3, 1975, Mrs. Richard’s scalp still had a lump on it, was red and swollen, and a spot of missing hair was visible.

Mr. Richard generally denied his wife’s accusations and on the other hand testified that she nagged him and was not performing her household duties of cooking, washing and cleaning. He admitted to staying out late on some nights but denied that he had ever ridiculed her. He did admit that, during the period in which he alleges that his wife’s lax housekeeping episodes occurred, the latter was still ill from her pacemaker operation.

The record also discloses that an attempt was made by Mrs. Richard’s brother-in-law to effect a reconciliation between the parties after this suit was filed. At a pre-ar-ranged meeting Mrs. Richard agreed to a reconciliation, but her husband indicated a lack of desire to do so and urged his wife to continue with her suit for separation.

The trial judge, considering the totality of the evidence, concluded that same preponderated in favor of plaintiff-wife. We find no error in his determination. The trial judge’s conclusions, inferred from the testimony of witnesses whose credibility he must determine, will be accorded substantial weight on review. Baggett v. Baggett, 311 So.2d 501 (La.App. 4th Cir. 1975); Best v. Best, 337 So.2d 672 (La. App. 3rd Cir. 1976).

We additionally conclude that the evidence is sufficient to sustain the finding by the trial judge that Mrs. Richard was justified in abandoning the matrimonial domicile because of the cruel treatment of her husband. Glorioso v. Glorioso, 223 La. 357, 65 So.2d 794 (1953).

It is true that our jurisprudence holds that when both parties are equally at fault neither can obtain a legal separation because of the doctrine of recrimination or comparative rectitude. In order to apply that doctrine to the facts of this case it would be necessary that we substitute our judgment for that of the trial judge. This we will not do. Our review of the record shows that ample evidence exists therein to sustain the district court finding that Mr. Richard’s actions constituted cruel treatment on his part, Gaudiano v. Gaudiano, 288 So.2d 396 (La.App. 4th Cir. 1974), and as aforesaid, Mrs. Richard was justified in abandoning the matrimonial domicile.

For the above and foregoing reasons the judgment of the district court is affirmed at appellant’s costs.

AFFIRMED.

      . We take note that Act No. 495 of the 1976 Regular Session of the Louisiana Legislature adds a new Article 141 to our Civil Code which mandates the granting of a separation although both parties are mutually at fault in causing the separation. This action legislatively overrules the jurisprudence on this subject. In any event, the circumstances giving rise to this litigation occurred prior to the effective date of the Act (October 1, 1976).


author: GUIDRY, Judge.

text:
    Jessie COURVILLE et ux., Plaintiffs-Appellants, v. Maurice CASTANIA et al., Defendants-Appellees.
    No. 5725.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 21, 1976.

      S. Michael Cashio, Jr., New Orleans, for plaintiffs-appellants.
    Davidson, Meaux, Onebane & Donohoe by L. Lane Roy, Lafayette, for defendants-ap-pellees.
    Before CULPEPPER, WATSON and GUIDRY, JJ.
   GUIDRY, Judge.

Plaintiffs, Jessie and Rosie Mae Courville, husband and wife, instituted this action against Maurice Castania and Allstate Insurance Company to recover damages for personal injuries and related special damages allegedly sustained as a result of a fall by Mrs. Courville. The defendant, Allstate, is the liability insurer of the premises where the accident occurred. Maurice Castania is the owner of the insured premises. The matter was tried before a jury which returned a verdict in favor of defendants. Accordingly, plaintiffs’ suit was dismissed with prejudice and at their cost. Plaintiffs have appealed.

The record reflects that on November 20, 1973, Mrs. Courville was visiting Mrs. Adrien Wyble at a trailer home owned by Maurice Castania. The trailer home, located at 614 West Bertheaud Street in the City of Opelousas, Louisiana, was being rented by the Wybles. During this visit it began to rain. Mrs. Courville, realizing that she had left the windows down in her car, left the trailer for the purpose of raising her car windows. While descending the steps of the trailer (3 tiered concrete steps lying on a concrete slab) Mrs. Courville lost her footing, fell off of the steps and fractured her left ankle.

Mrs. Courville does not contend that the steps were defective or dangerous. To the contrary she admitted that the steps were not defective. (Tr. pgs. 17 and 21) Plaintiffs contend, however, that when Mrs. Courville lost her footing descending the steps, she stepped into a hole at the side of the stoop which caused her to fall, twisting and breaking her left ankle in the process. The only negligent act sought to be attributed by plaintiff to the defendant, Mr. Cas-tania, is his knowingly permitting his premises to be and remain in an unsafe condition, i. e., a hole in the ground in the immediate area of the entrance steps to one of his rent trailers. Defendants deny that there was a hole or depression in the ground at the side of the stoop.

The existence or non-existence of a hole or depression in the ground near the steps of the Wyble trailer is the only controverted fact in the record. The jury accepted the testimony of the defendant and his witnesses that there was no hole or depression in the ground near the stoop of the Wyble trailer and rejected the testimony of Mrs. Courville and her only witness, Mr. Adrien Wyble, to the contrary.

An appellate court will not disturb the factual findings of the trier of fact where there is evidence in the record, which upon its reasonable evaluation as to credibility, furnishes a reasonable basis supporting the finding. Plescia v. Dunham, 319 So.2d 812 (La.App. 1st Cir. 1975) and cases therein cited. As stated in Canter v. Koehring Co., 283 So.2d 716, 724 (La.1973):

“. . . the reviewing court must give great weight to factual conclusions of the trier of fact; where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable . . .”

Plaintiffs contend on appeal that the trial court, upon objection by defendant, erroneously excluded from evidence and viewing by the jury, certain photographs which allegedly establish the existence of the hole or depression that proximately caused Mrs. Courville’s injury. Plaintiffs contend that this alleged error by the trial judge was devastatingly fatal to plaintiffs’ case. We have examined the record and determine that the trial court properly excluded this evidence.

The photographs referred to are part of the record and have been marked P-4 through P-8. At a pre-trial conference, counsel for both parties stipulated that these photographs might be introduced into the record of this proceeding without producing the photographer who took the same. Defendants waived no other objection that they might have to the admissibility of these photographs. When plaintiffs attempted to introduce these photographs defense counsel objected to their admissibility on the ground that their relevance, not their genuineness, had not been established. In other words, defendants objected, because at the time such photographs were sought to be introduced, plaintiff had not then established by any witness that the photographs were of the steps at the Wyble trailer. Counsel for plaintiff then suggested that he would establish relevance by other witnesses, however, it is clear from the record that he never proved relevance. Neither plaintiff nor her witness could testify that the photographs were reflective of the condition of the steps or the area surrounding the Wyble trailer on the date of the accident. The trial court then excluded the photographs. We conclude, as did the trial court, that these photographs were inadmissable inasmuch as appellant offered no evidence to establish their relevancy.

Although we have concluded that the trial court properly excluded plaintiffs’ exhibits P-4 through P-8, in an overabundance of caution, we considered these photographs in our review of the record (Broussard v. State Farm Mutual Automobile Ins. Co., 188 So.2d 111 (La.App. 3rd Cir. 1966) writ refused 249 La. 713, 190 So.2d 233, certiorari denied 386 U.S. 909, 87 S.Ct. 855, 17 L.Ed.2d 783) and determine that the preponderance of the evidence supports the jury’s verdict. The photographs in question do not reflect the presence of any discernible hole or depression. These photographs show the presence of shell alongside of the steps, although both Mrs. Courville and her witness denied that there was any such material adjacent to the steps on the date of the accident. The area shown in these photographs (P-4 through P-8) does not even remotely resemble the area as shown in photographs D-l and D-2 which are admittedly of the steps to the Wyble trailer and were taken the day following the accident.

For the foregoing reasons the judgment appealed from is affirmed at the cost of appellants.

AFFIRMED.


text:
    Cecil PETTIS, Plaintiff-Appellant, v. STATE of Louisiana, Through the STATE DEPARTMENT OF HOSPITALS, et al., Defendants-Appellees.
    No. 5419.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 21, 1976.

      William Henry Sanders, Jena, Edward A. Kaplan, Alexandria, for plaintiff-appellant.
    Adams & Reese by Harold A. Thomas, New Orleans, Lawrence W. Bell, Baton Rouge, Gold, Hall, Hammill & Little by James D. Davis, Alexandria, for defendants-appellees.
    Provosty & Sadler by LeDoux R. Prov-osty, Jr., Alexandria, for defendants-excep-tors.
    Before HOOD, GUIDRY and PETERS, JJ.
   GUIDRY, Judge.

Our judgment on rehearing in this case, 336 So.2d 521 (La.App. 3rd Cir. 1976) granted the State of Louisiana through the Louisiana Health and Human Resources Administration, Third Party Plaintiff, indemnity over against Dr. William L. Kirkpatrick, Sr., and Dr. Earl H. Kent, for the full amount paid by the State of Louisiana in satisfaction of the judgment rendered in favor of plaintiff-appellant, Cecil Pettis. The Supreme Court of Louisiana granted a writ in this matter limited to a consideration of the correctness of our judgment on the third-party demand, 339 So.2d 855 (La. 1976). On December 3, 1976 the Supreme Court of Louisiana reversed and set aside our judgment on the third-party demand and ordered this matter remanded to this court with instructions that we should reconsider such demand in light of the provisions of LSA-R.C.C. Article 2103.

Pursuant to this mandate we have reconsidered our decision and now conclude that the State of Louisiana, through the Louisiana Health and Human Resources Administration, is not entitled to indemnity over against third-party defendants because the State of Louisiana was independently liable to the plaintiff as a result of the negligence of nurses or employees of the hospital who failed to include a vital notation on the “24 hour report”. The State of Louisiana having been found guilty of negligence, independent of that of Drs. Kent and Kirkpatrick, which was a proximate cause of the injuries and damage sustained by plaintiff, it follows that third-party plaintiff is not entitled to indemnity over against third-party defendants. The State of Louisiana is however, entitled, under its third-party demand, to contribution from third-party defendants for their virile portion of the total judgment rendered in favor of plaintiff. LSA-R.C.C. Article 2103.

For the above and foregoing reasons our judgment on rehearing is reinstated with the following modification to the end that the decree portion thereof shall read as follows:

“For the reasons herein set out, the judgment appealed from is affirmed insofar as it rejects plaintiff’s demand against defendant, Dr. Arthur L. Seale, and dismisses the suit as to that defendant. The judgment appealed from is reversed insofar as it dismisses the suit as to all other defendants, and judgment is hereby rendered in favor of plaintiff, Cecil Pettis, and against defendants (1) State of Louisiana, through the Louisiana Health and Human Resources Administration, (2) Dr. William L. Kirkpatrick, (3) Dr. Earl H. Kent, and (4) Tri-State Insurance Company, in solido, for the full sum of $35,-000.00, with legal interest thereon from date of judicial demand until paid, and for all costs of this suit. Further, judgment is rendered in favor of third party plaintiff, State of Louisiana, through Louisiana Health and Resources Administration, and against third party defendants, Drs. Earl H. Kent and William L. Kirkpatrick, for any amount the State may pay in satisfaction of said judgment over and above its virile share, i. e., one-third of the full amount of the judgment herein rendered in favor of plaintiff-appellant, Cecil Pettis. The costs of this appeal are assessed to defendants-appel-lees, State of Louisiana, Dr. Kirkpatrick, Dr. Kent and Tri-State Insurance Company, in equal proportions except that the State of Louisiana is relieved of the payment of any costs which they are not legally obligated to pay.”

AFFIRMED IN PART: REVERSED IN PART AND RENDERED.


text:
    Sam V. DISTEFANO, Plaintiff-Appellant, v. LUMBERMEN’S MUTUAL CASUALTY COMPANY et al., Defendants-Appellees.
    No. 5705.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 21, 1976.
    Teekell & Chaudoir by Lloyd G. Teekell, Alexandria, for plaintiff-appellant.
    McLure & McLure by John G. McLure, Alexandria, for defendants-appellees.
    Before CULPEPPER, WATSON and GUIDRY, JJ.
   GUIDRY, Judge.

In this suit plaintiff seeks the recovery of damages, both general and special, for injuries sustained when he fell down a stairway in a building owned by the defendant, Wallace P. Denux. Lumbermen’s Mutual Casualty Company is the liability insurer of Mr. Denux.

At trial on the merits defendants admitted liability and coverage under Lumbermen’s policy, the only issue submitted for decision by the trial court being that of quantum. The district judge, without as-' signing written reasons, rendered judgment in favor of plaintiff in the principal sum of $5917.00, i. e., $3000.00 for general damages and $2917.00 in special damages.

The amount of judgment, plus interest and all costs, was paid by the defendants to plaintiff whereupon the latter executed a written document evidencing payment reserving, however, his right to appeal. Plaintiff has perfected this appeal requesting an increase in the award. Defendants have not appealed or answered the appeal of plaintiff.

At the time of accident plaintiff was twenty-two years of age. He was employed as a deck hand by Bruce Boat Rentals Inc. and worked offshore, 7 days on and 7 days off. As a result of his fall down the stairs of defendant Denux’s apartment building he sustained a fracture of the base of the fourth metacarpal of the right hand and a dislocation of the fifth carpal metacarpal joint of the right hand. He was seen on the night of the accident by Dr. Louis A. Cayer, an orthopaedic surgeon of Alexandria, Louisiana. Two days post-accident Dr. Cayer performed an open reduction of the dislocation of the fifth carpal metacarpal joint and a pinning with “K” wires of the carpal metacarpal joint. Plaintiffs right hand was then placed in a cast. This procedure was accomplished with the use of a local anesthetic plaintiff being released to return to his home the same day. Plaintiff was thereafter seen by Dr. Cayer as an outpatient on several occasions he being finally discharged by the Doctor on June 27, 1975. Dr. Cayer did not testify at trial however, his medical records were admitted in evidence pursuant to stipulation of counsel. The following excerpt taken from Dr. Cayer’s report of June 27, 1975 (P-3) indicates that Doctor’s opinion regarding plaintiff’s recovery and ability to work:

“ . . .A 320 deg. reading as he had on the right side is certainly compatible with an excellently functioning hand and I would think he is honest when he says he has not had pain. He wants to return to full work duty and I told him I certainly think he can do this, that I thought he should have a trial of performing his previous employment or full work duty. Work Status: Discharged today without any physical impairment as I do not feel any is indicated. There is no evidence to suggest subluxation or dislocation of the joint involved and the hand certainly appears well healed.”

The only other medical evidence in the record is the deposition of Dr. Paul M. Davis, an Orthopaedic surgeon, who examined plaintiff on March 18,1976. Dr. Davis opined that plaintiff had had an excellent recovery from his injury with only a 5% overall impairment of the right hand. With regard to the overall impairment assigned, i. e., 5%, Dr. Davis stated that such percentage was a low as he would rate one and such impairment would lessen further in time.

Equally, if not more important, is plaintiff’s own candid testimony regarding his complete recovery and his ability to work as before his injury. Plaintiff testified as follows (Transcript, page 29):

“Q. Do you have any trouble with your work now because of your hand condition?
A. No Sir.
Q. You can do your work?
A. Yes sir.
Q. Mr. Distefano, since you have returned to your employment, may I ask you this? Did you go back to work with the same people?
A. Yes sir.
Q. Are you doing essentially the same job?
A. Yes sir.
Q. Is there anything that you’re doing in your work now that bothers you because of your hand, such as the grasping of ropes or hanging on to anything?
A. Well, I really — nothing so far has bothered me. . . . ”

As heretofore mentioned the district judge awarded plaintiff $3000.00 in general damages and $2917.00 in special damages, the latter amount including $567.00 medical expenses and $2350.00 in lost wages. There is no dispute as to the amount awarded for medical expenses, however, plaintiff suggests that the award in general damages should be increased to $5000.00 and the award for lost wages should be increased to $4432.12.

SPECIAL DAMAGE AWARD FOR LOST WAGES

The record reflects that plaintiff was earning, at the time of injury, gross wages in the amount of $28.00 per day plus a daily food and linen allowance of $6.00. As aforesaid he worked 7 days on and 7 days off. From the time of injury to the date of his discharge by Dr. Cayer to return to full employment he lost 11 work weeks. If plaintiff’s wages be calculated at $28.00 per day his lost wages would amount to $2156.00. On the other hand if there be included in his daily wage rate the amount allowed for food and linen, his lost wages would amount to the sum of $2618.00. The district court allowed plaintiff the sum of $2350.00. We are not prepared to hold that in fixing plaintiff’s loss for this item at the latter amount the trial court committed manifest error. Allowances for loss of wages, like those for loss of future earnings or support of dependents in case of death, are not generally susceptible of calculation with mathematical exactitude. They are in some measure speculative when the circumstance of work lay-offs, occasioned by reason of sickness, inclement weather, labor disputes etc. are balanced against the record of one who was previously regularly employed. As reiterated by our Supreme Court in Viator v. Gilbert, 253 La. 81, 216 So.2d 821, 823 (1968), “. . . most that the courts can do . . . is to exercise a sound judicial discretion and award such amount as, all the circumstances considered, may seem just to both litigants and not unduly oppressive to either.”

Although the record does contain some evidence that plaintiff did work part-time during his off weeks the evidence in this regard is inconclusive as to the amount or frequency of such earnings. In any event, plaintiff does not in brief seriously contend that the award as made by the trial court is in error for not considering such additional earnings.

Suffice it to say that we discern no abuse of the great discretion reposed in the trial court in assessing this type of damage claim. Jordan v. Travelers Insurance Company, 257 La. 995, 245 So.2d 151 (1971); Reeves v. Louisiana & Arkansas Railway Co., 304 So.2d 370 (La.App. 1st Cir. 1974), writ refused, La., 305 So.2d 123.

GENERAL DAMAGE AWARD

The rule of appellate review as it applies to awards of general damages was rather recently set forth in the case of Anderson v. Welding Testing Laboratory, Inc., 304 So.2d 351 (La.1974) as follows:

“The appellate review of awards for general damages is limited to determining whether the trial court abused its great discretion. The adequacy or inadequacy of an award should be determined on the basis of the facts and circumstances peculiar to the case under review, having in regard also that the trier of fact has the advantage of seeing the witnesses and evaluating their testimony, including that of residual pain. The awards made in other cases provide no scale of uniformity; their use is limited to serving as an aid to determine, if the present award is greatly disproportionate to similar awards (if truly similar), whether an issue of abuse of discretion may exist in the present case. In any event, an abuse of trial-court discretion must be clearly demonstrated by the record before an appellate court will tamper with an award of general damages.”

We have considered the award made in this case in light of this well established rule and fail to find any abuse of the much discretion vested in the trier of fact. R.C.C. Article 1934; Bitoun v. Landry et al., 302 So.2d 278 (La.1974).

For the above and foregoing reasons the judgment appealed from is affirmed, appellant to pay all costs of this appeal.

AFFIRMED.


author: WATSON, Judge.

text:
    EVANGELINE EMPLOYMENT SERVICE, Plaintiff-Appellee, v. Kenneth J. DECUIRE, Defendant-Appellant.
    No. 5707.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 21, 1976.
    Warren Ashy and Joseph Koury, Lafayette, for defendant-appellant.
    Seidel & Bailey by Fred K. Bailey, Lafayette, for plaintiff-appellee.
    Before CULPEPPER, WATSON and GUIDRY, JJ.
   WATSON, Judge.

Defendant, Kenneth J. Decuire, appeals from a default judgment entered against him, contending that the pleadings, an affidavit, and a copy of a purported contract are insufficient as proof upon which to base judgment. Plaintiff is Evangeline Employment Service, whose corporate or other legal status is not specified in the pleadings.

On October 3, 1975, a petition was filed alleging that plaintiff and defendant had entered into a contract for the procurement of employment; that the employment service had performed all of its obligations pursuant to the contract; that defendant had secured employment with a firm in Lafayette as the result of services rendered by the employment service; but that defendant had failed to pay its fee. An affidavit was attached to the contract by the manager of the employment service who attested that all of the allegations in the petition were true and correct. A copy of the alleged contract was also attached to the petition. Citation was issued and domiciliary service was effected on October 13, 1975; a preliminary default was entered on April 7, 1976; and the matter was called before the district court on April 26 for confirmation of default.

The only proceedings in the district court were as follows:

“NOTE OF EVIDENCE TAKEN ON CONFIRMATION OF DEFAULT “MR. BAILEY: Your Honor, this is a suit for breach of contract in the amount of eight hundred sixty-four ($864.00) dollars.
PLAINTIFF’S EVIDENCE
OFFERING:
“I would like to offer the entire record to show the original petition filed on October 3, 1975; the affidavit as to the correctness of the amount sued on by the manager of the plaintiff corporation; citation showing domiciliary service on the defendant on October 13,1975; a preliminary default entered on April 7,1976, and the file reflecting that no answer or responsive pleadings were filed by the defendant herein.
“We would further like to introduce the original contract sued on.
“We pray for judgment, Your Honor. “THE COURT. Let there be judgment.
EVIDENCE CLOSED.” (TR. 11-12)

On appeal, defendant contends that, among other deficiencies, there was not“proof of the demand sufficient to establish a prima facie case”, as required by LSA-C.C.P. art. 1702.

It is not necessary to itemize each deficiency in the evidence; there is a total absence of proof. The allegations of the petition and authenticity of the contract were not proven. There was no admissible evidence to demonstrate plaintiff’s compliance with the contract and defendant’s failure. The affidavit was not admissible as in a suit on open account. LSA-C.C.P. art. 1702. A default judgment rendered without proof of the demand sufficient to establish a prima facie case must be set aside. Courville v. Southern Casualty Insurance Co., 304 So.2d 93 (La.App. 3 Cir. 1974).

For the reasons assigned, the default judgment is vacated and set aside and the case is remanded to the district court for further proceedings consistent with this opinion. Defendant is allowed fifteen (15) days to answer or otherwise plead.

All costs to date are taxed against plaintiff, Evangeline Employment Service, and assessment of all other costs is to await final disposition.

REVERSED AND REMANDED.


author: HUMPHRIES, Judge.

text:
    Joseph S. ZUCCARO, and W. H. Cuthbertson, Plaintiffs-Appellants, v. CONCORDIA PARISH POLICE JURY and Louisiana Department of Highways, Defendants-Appellees.
    No. 5713.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 21, 1976.

      Lloyd F. Love, Perriday, for plaintiffs-appellants.
    W. C. Palkenheiner, Vidalia, John Sturgeon, Perriday, for Norman L. Sisson, Robert J. Jones, Sharon P. Frazier, David K. Balfour by David K. Balfour, Baton Rouge, for defendants-appellees.
    Before HOOD, DOMENGEAUX and HUMPHRIES, JJ.
   HUMPHRIES, Judge.

This is a suit by Joseph S. Zuccaro and William H. Cuthbertson to enjoin permanently the Concordia Parish Police Jury and the Louisiana Department of Highways from resurfacing a road along the top of a levee on their property. Judgment was rendered, in favor of defendants, in open court, on March 19, 1976 at the conclusion of the trial on the merits. At that time, the attorney for the plaintiffs gave oral notice to the District Judge that an appeal would be taken. There is no request of record for notice of the date of the signing of judgment. The judgment was signed on April 9, 1976.

An oral motion for appeal was made on June 1, 1976. The return date for this appeal was July 28, 1976. No bond was ever furnished thus this appeal was never perfected.

A written motion for appeal was filed on July 26, 1976. The order for appeal was signed on August 10,1976. The return date on the written motion for the appeal was August 27, 1976.

We, ex proprio motu, dismiss this appeal for the reason that it has not been perfected. Under the law, a party has 90 days from the expiration of the time for applying for a new trial (none was applied for here) within which to move for and furnish security for a devolutive appeal.

Judgment was rendered on March 19,1976 after a hearing on the merits. The judgment was signed on April 9, 1976. Counting 7 days, exclusive of legal holidays, from the date the judgment was signed, as required by C.C.P. Art. 1974, one learns that the 90 day delay for obtaining an order of appeal and furnishing security therefor commenced running on April 20, 1976 and expired on July 19, 1976. (C.C.P. Art. 2087).

The record reflects that the bond for the appeal was furnished on July 26, 1976, which was six days beyond the date for perfecting the appeal. Failure to furnish security leaves the appeal imperfect and deprives the Court of Appeal of jurisdiction. C.C.P. Arts. 2087, 2088. Freeman v. Liberty Mutual Insurance Co., 289 So.2d 875 (La.App. 3 Cir. 1974).

Costs of appeal are taxed to plaintiff-appellant.

APPEAL DISMISSED.

      . Apparently the effect, if any, of R.S. 38:966 was not considered by the Judge or the attorneys.

      . The original certified copies of the minutes, filed in the record, do not reveal the date that this oral motion was made. Telephonic contact with the Clerk of Court established that the motion was made on June 1, 1976. Corrected certified copies of the minutes have been received from the Clerk and filed in the record in this court.


author: SCHOTT, Judge.

text:
    INVESTIGATION BY ATTORNEY GENERAL OF LOUISIANA OF VIOLATIONS OF the LOUISIANA ANTITRUST LAWS.
    No. 8322.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 23, 1976.
    John R. Flowers, Jr., and James F. Wille-ford, Asst. Attys. Gen., for William J. Guste, Jr., Atty. Gen., plaintiff-appellee.
    Milling, Benson, Woodward, Hillyer & Pierson, Lawrence K. Benson, Jr., and M. Hampton Carver, Virgil M. Wheeler, Jr., New Orleans, for Bean and Boudousquie, appellants.
    Before SAMUEL, STOULIG and SCHOTT, JJ.
   SCHOTT, Judge.

These proceedings were instituted by the Attorney General against appellants in the Civil District Court for the Parish of Orleans pursuant to LSA-R.S. 51:143. The trial court issued an order that appellants answer “all relevant and material questions put to them concerning any contract, combination, or conspiracy in restraint of trade or commerce, or to create a monopoly;” the order then provided as follows:

“2. Said persons [appellants] shall not refuse to answer any questions upon the ground that these acts would tend to incriminate them or subject them to a penalty or forfeiture under the laws of Louisiana, and said persons shall not be liable to prosecution or subject to any action, penalty or forfeiture under the laws of Louisiana on account of any transaction, matter, or thing to which they may testify.”

Appellants moved to quash this order and from a judgment denying their motion this appeal was taken pursuant to R.S. 51:152.

The sole issue raised in this appeal by appellants is that the Civil District Court for the Parish of Orleans cannot grant immunity' from criminal prosecution since its jurisdiction is limited to civil matters, R.S. 13:1137. Appellants contend, therefore, that the purported grant of immunity in the order is ineffective with respect to a criminal prosecution, and consequently the order in toto is invalid.

Part IV of Title 51 of the Revised Statutes having to do with monopolies includes civil proceedings, e. g., §§ 128, 137 and 139. § 143 authorizing the Attorney General to bring discovery proceedings may be related to such civil proceedings, so that the Attorney General is authorized to bring such an action in the Civil District Court for the Parish of Orleans. § 146 provides as follows:

“The witness shall not refuse to produce books or papers in accordance with the order or to answer any questions in reference to the subject matter of the investigation upon the ground that these acts would tend to incriminate him or subject him to a penalty or forfeiture.
“The witness shall not be liable to prosecution, or subject to any action, penalty, or forfeiture on account of any transaction, matter or thing concerning which he may testify or produce books or papers.”

It is clear from this statute that if one is compelled to testify in a § 143 proceeding immunity is conferred by virtue of the provisions of § 146 and not by the court which orders the witness to testify. Thus, the order complained of herein did not of itself grant immunity but simply announced the effect of the statute which took place regardless of the language of the order.

Accordingly, the judgment appealed from is affirmed.

AFFIRMED.


author: SHORES, Justice

text:
    GENERAL TELEPHONE COMPANY OF the SOUTHEAST v. ALABAMA PUBLIC SERVICE COMMISSION et al.
    SC 1288.
    Supreme Court of Alabama.
    Dec. 17, 1976.
    Hill, Hill, Carter, Franco, Cole & Black, Montgomery, Ward W. Wueste, Jr., Durham, N.C., for appellant.
    Carl L. Evans, Montgomery, for Alabama Public Service Commission.
    Maurice F. Bishop, Birmingham, for the State of Alabama and Hon. George C. Wallace, as Governor.
    Oliver W. Brantley, Troy, for 13 Ala. Municipalities.
   AFTER REMAND

On May 21, 1976, this Court remanded this cause to the Alabama Public Service Commission, with directions, 335 So.2d 151.

The Commission conducted further hearings, and in response to this Court’s further ORDER of November 18, 1976, filed the following:

"STATE OF ALABAMA • ALABAMA PUBLIC SERVICE COMMISSION P.. 0. Box 991 Montgomery, Alabama 36130 GENERAL TELEPHONE COMPANY ) OF THE SOUTHEAST, ) Petitioner j ) ) PETITION: For approval of New Schedules of Rates and Charges for Intrastate Telephone Service. DOCKET NO. 16751

FINDINGS AND ORDER OF THE COMMISSION ON REMAND

BY THE COMMISSION:

“The Supreme Court of Alabama issued its decision May 21, 1976, in S.C. 1288, General Telephone Company of the Southeast (General) versus Alabama Public Service Commission, et al, an appeal by General Telephone Company of the Southeast (General) of the decisions of this Commission on April 15, 1974, and July 22, 1974, denying any increase in rates. The Court remanded the case to the Commission with instructions as follows:

‘To reopen the hearing within 60 days after receipt of the certificate of judgment from this Court for the limited purpose of determining the actual rate of return earned under the rates allowable on the Company’s property devoted to public service, as defined in the statute. The Commission, after considering this additional evidence, is directed to determine whether the rate of return allowed by the Order here on appeal produced a return to equity of 11.05% which the Commission has determined was reasonable. If not, the Commission should approve a new rate.’

“A motion for reconsideration was filed on June 2, 1976, by the Intervenors in this case, the State of Alabama and George C. Wallace as Governor of the State of Alabama, and certain cities and towns, said motion being denied by the Court on July 2, 1976. The Supreme Court issued its Certificate of Judgment to the Circuit Court of Montgomery County on the same date.

“The Commission, in compliance with the Court’s direction, issued on August 12,1976, notice of hearing to commence on August 19, 1976. Prior to the date of hearing and on August 17, 1976, the Supreme Court, pursuant to a motion by General, ordered President C. C. Whatley to disqualify himself from further proceedings in this case because of his having appeared as a witness on behalf of Governor Wallace, an interve-nor in the case. Accordingly, Mr. Whatley did not participate in the future proceedings of the Commission.

“General presented testimony of witnesses and exhibits at the hearing on August 19, 1976, calculated to show its actual experience for the 12 month period ending May 31, 1975, and the 12 month period ending May 31,1976. The Company presented testimony and exhibits relating to a test period ending April 30,1976, including new investment to be added by the Company during the next 12 months, or through April 30, 1977. Requests for additional information were presented to the Company by the parties and the Commission, and the additional information sought was supplied to . the Commission on September 7, 1976. Cross-examination was conducted on October 6, 1976, which concluded the hearing.

“Based upon the entire record in this matter and in complying with the Supreme Court’s direction, we find that the 12 month periods ending May 31, 1975, and May 31, 1976, are appropriate periods to use in determining the actual experience of General’s intrastate operations. The Company presented its actual operating experience intrastate Alabama for the two periods referred to hereinabove based on its actual books absent proforma adjustments using an average rate base, including the elements approved by this Commission in our order of April 15, 1976, and our additional findings of July 22, 1974, said findings being in response to the Montgomery County Circuit Court’s request.

“For the purpose of determining General’s actual return under the bonded rates, the Commission has considered two one-year periods of operations under these rates: the twelve months of June, 1974, through May, 1975, and the twelve months of June, 1975, through May, 1976. For the twelve month period of June, 1974, through May, 1975, we find as follows:

“(1) For the purpose of determining the actual earnings under the bonded rates, the Commission must determine the beginning-of-year/end-of-year average intrastate capital requirements, and apply to these capital requirements the comparable average cost rates of each component, thereby giving the total cost to the company of obtaining a return of 11.05% on common equity. Our results are as follows for the first one-year period:

Preferred Stock Common Equity & JDIC Accumulated deferred income taxes and pre-termination tax Total Intrastate Capital Requirement $26,683,882 411,834 Rate 7.69% 4.65% Requirement $2,051,991 19,150 23,128,040 11.05% 2,555,648 2,400,979 0% 0 $52,624,735 8.79% $4,626,789

“For this same period General’s income available for return under the bonded rates was $5,097,529, which was an excess return of $470,740. Converted to revenue, this is an excess in rates of $965,027.

“(2) For the second one-year period, we find as follows:

Preferred Stock Common Equity & JDIC Accumulated deferred income taxes and pre-termination tax Intrastate Capital Requirement $27,188,699 405,336 24,372,133 2,978,095 Return Requirement 7.72% $2,098,968 4.64% 18,808 11.05% 2,693,121 0% 0 $54,944,263 8.76% $4,810,897

“For this same period General’s income available for return under the bonded rates was $5,132,399, which was an excess return of $321,502. Converted to revenue, this is an excess in rates of $653,725.

“In determining the rates for the future which would produce 11.05% return on General’s intrastate common equity, we have considered as the test period the twelve months ended April 30, 1976, adjusted to the level of April 30, 1977. Based on the information furnished by the Company, at the Commission’s request, in Request Item 11, we find General’s return requirement to produce 11.05% on common equity to be as follows:

Capital Cost Requirement Rate Requirement
Debt $27,525,371 7.68% $2,113,948
Preferred Stock 402,836 4.64% 18,692
Common Equity & JDIC 25,076,552 11.05% 2,770,959
Accumulated 3,805,441 0% 0
deferred income taxes and pretermination investment credit_ Total $56,810,200 8.63% $4,903,599

“We find that the schedules of rates and charges as set out in Request Item 11, which were filed in response to the Commission’s request, are calculated to produce operating income of approximately $4,903,599 and a return to common equity of 11.05%.

“IT IS, THEREFORE, ORDERED BY THE COMMISSION, That General file with this Commission rates and charges as set out in Request Item. 11 calculated to produce operating income of approximately $4,903,599.

“IT IS FURTHER ORDERED BY THE COMMISSION, That General make the refunds to its customers as set out herein-above as soon as practicable, these amounts being $965,027.00 plus applicable taxes and interest for the twelve month period ending May 31, 1975, and $653,725.00 plus applicable taxes and interest for the twelve month period ending May 31, 1976.

“IT IS FURTHER ORDERED BY THE COMMISSION, That General, as soon as practicable, calculate the difference in the rates collected under Bond from the date of

June 1, 1976, to the date the new rates as prescribed above become effective and make refunds of the difference including applicable taxes and interest.

“IT IS FURTHER ORDERED BY THE COMMISSION, That the rates ordered filed hereinabove are to be effective on January 1, 1977, and for subsequent billings thereafter.

“DATED at Montgomery, Alabama, this 23rd day of November, 1976.

ALABAMA PUBLIC SERVICE COMMISSION

/s/ Jim Zeigler, Commissioner Jim Zeigler, Commissioner /s/ Juanita W. McDaniel Juanita W. McDaniel, Commissioner

ATTEST: A True Copy

/s/ Wallace Tidmore

Wallace Tidmore, Secretary”

Upon consideration of the findings and order of the Commission, and in view of the fact that no party has filed any objections by December 8, 1976, the time allowed in this Court’s ORDER of November 18, 1976, this Court hereby affirms the Order of the Alabama Public Service Commission dated November 23, 1976.

JONES, ALMON, EMBRY and BEAT-TY, JJ., concur.

HEFLIN, C. J., and BLOODWORTH, FAULKNER and SHORES, JJ., concur specially.

SHORES, Justice

(concurring specially):

Although I joined in the dissent on original deliverance because I did not think it proper to remand this case to the Alabama Public Service Commission as ordered by the majority, I now concur in affirming the order of the Commission which is now before us. It was entered after taking evidence as ordered by this court, neither party has filed any objection to it, and there is evidence to support it. I, therefore, agree that it is due to be affirmed.

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


author: HOLMES, Judge.

text:
    Damon Lee KIRKLAND v. STATE of Alabama ex rel. William J. BAXLEY, attorney general.
    Civ. 914.
    Court of Civil Appeals of Alabama.
    Oct. 27, 1976.
    Rehearing Denied Nov. 24, 1976.

      Smith & Smith, Dothan, for appellant.
    William J. Baxley, Atty. Gen., and C. Lawson Little, Asst. Atty. Gen., for the State.
   HOLMES, Judge.

This is an appeal by Damon Lee Kirkland from a condemnation proceeding in the Circuit Court of Houston County, wherein Mr. Kirkland’s automobile was adjudged forfeited to the State of Alabama.

Title 22, § 258(57), Code of Alabama 1940, allows law enforcement officials having probable cause to believe that a vehicle is being used in the illegal transportation of controlled substances to seize the vehicle. Vehicles thus seized may thereafter pursuant to judicial proceedings be adjudged forfeited to the state, sold, and the proceeds therefrom distributed according to the statutory scheme.

ISSUES

Two grounds are asserted for reversal upon appeal:

(1) Admittance into evidence of marijuana in the trial court was improper, the substance having been obtained through a warrantless and, • hence, illegal search, therefore vitiating the forfeiture.

(2) Title 22, § 258(57), Code of Alabama 1940, is unconstitutional in that it allows deprivation of property without either a pre-seizure hearing or post-seizure opportunity to give bond for return of the confiscated property pending adjudication of the propriety of the seizure.

Both contentions are without merit, and the trial court’s judgment is affirmed.

FACTS

On Sunday, February 8, 1976, at approximately 11:00 A.M., Mr. Lamar Hadden, an agent with the Alabama Alcoholic Beverage Control Board in Dothan, Alabama, received a phone call from an informant. The informant stated that Mr. Kirkland, the appellant, was en route to Dothan from Orlando, Florida, in a green 1973 Vega station wagon. The informant further informed Mr. Hadden that he had seen Mr. Kirkland place a five pound bag of marijuana in the car. The informant told Agent Hadden that Mr. Kirkland had five sellers who would be selling the marijuana at $15.00 per lid.

Agent Hadden testified that he had known the informant for eight to ten years, that the informant had led Agent Hadden to make successful drug cases against individuals and that the informant had proved reliable on prior occasions.

After receiving the information from the informant, Agent Hadden made two telephone calls — one to another agent for assistance and another to the state troopers’ office to obtain the license number of Mr. Kirkland’s automobile. Upon receiving the latter information, Agent Hadden immediately proceeded to the highway to await Mr. Kirkland’s arrival.

At approximately 2:00 P.M., Agent Had-den observed Mr. Kirkland entering the city in the green Vega station wagon. Agent Hadden followed Mr. Kirkland for a short period of time and then pulled over the station wagon. Agent Hadden then checked Mr. Kirkland’s driver’s license and informed Mr. Kirkland that he had information that Mr. Kirkland possessed marijuana in his ear.

According to Agent Hadden, Mr. Kirkland then stated he had no marijuana in his vehicle and further told the agent to look for himself. Mr. Kirkland’s testimony on this point differs from that of Agent Had-den. Mr. Kirkland said Agent Hadden ordered him to open the trunk so that the agent could conduct the search. Mrs. Kirkland, the wife of the appellant, was a passenger in the vehicle at the time of the search. Her testimony concerning consent to the search is virtually identical to her husband’s.

Under the spare tire in the trunk Agent Hadden found a brown paper bag filled with marijuana.

Agent Hadden never attempted to obtain a warrant authorizing a search of the vehicle. However, he testified he did not because he had insufficient time to do so. The informant at 11:00 A.M., had told Agent Hadden that Mr. Kirkland was due in Dothan “right away.” Agent Hadden feared delay might result in his not being present to intercept Mr. Kirkland upon the ■ latter’s arrival into Dothan.

The automobile was seized coincidental with the marijuana and has been in the possession of the Alabama Alcoholic Beverage Control Board since that time.

A complaint seeking forfeiture of the vehicle pursuant to Tit. 22, § 258(57), Code of Alabama 1940, was filed on February 24, 1976, by the State of Alabama.

On May 6, 1976, a judgment ordering the vehicle forfeited to the state was entered. Mr. Kirkland’s motion for a new trial was denied on May 28, 1976; and it is from the denial of that motion that he takes this appeal.

I

As previously stated, Mr. Kirkland contests the validity of the search and seizure which yielded the marijuana. He does not assert lack of probable cause for the search of the vehicle. Rather, he maintains that absence of a warrant invalidates the search.

While a search conducted pursuant to a warrant is cast in the most favorable light, many exceptions exist wherein the law recognizes the impracticability of obtaining a warrant prior to the search. One such exception arises when there is a substantial likelihood that delay in conducting the search will result in the destruction or removal of the evidence sought to be produced by the search. Likewise, an exception is recognized where acquisition of the warrant would enable the suspect to escape. Jenkins v. State, 46 Ala.App. 719, 248 So.2d 758. See Daniels v. State, 290 Ala. 316, 276 So.2d 441; Hover v. Whittaker-Warren Agency, 56 Ala.App. 255, 321 So.2d 213; Albert Properties, Inc. v. Cannon, 54 Ala.App. 699, 312 So.2d 392. Searches under the preceding circumstances, though warrantless, are valid if based on probable cause. The search and seizure, in this case, viewing the circumstances believed by Agent Hadden to exist at the time thereof, fall within the aboye enumerated exceptions.

Agent Hadden testified that the informant had not stated when Mr. Kirkland left Orlando, only that the latter was en route to Dothan. It is quite apparent that Agent Hadden reasonably believed that any delay occasioned by procurement of a warrant might result in Mr. Kirkland’s slipping into Dothan unnoticed, thereby enabling him to remove the marijuana from the car. Almost immediately after receiving the information from the informant, Agent Hadden proceeded to position himself at a point on the highway where he could observe vehicles entering Dothan. Agent Hadden testified that the informant had said that Mr. Kirkland was due in Dothan “right away.” His actions attest to his stated belief that time limitations precluded application for a warrant. The fact that a three hour delay ensued between Agent Hadden’s receipt of the information and his apprehension of Mr. Kirkland, during which he never attempted to obtain a warrant, does not mandate invalidation of the search. We deem the facts herein to constitute “exigent circumstances” which dispense with the requirement of procurement of a warrant prior to the search. See Daniels, supra.

Even if the facts of this case do not constitute exigent circumstances which excuse the securing of a warrant, the search is nonetheless valid. A search warrant is unnecessary where consent to the search has been freely given. Woods v. State, 57 Ala.App. 1, 325 So.2d 517, cert. denied 295 Ala. 430, 325 So.2d 519; 17 Ala. Dig. Searches and Seizures &wkey;7(27). Although no specific finding of fact regarding consent to the search was made by the trial court, the transcript of evidence reveals testimony to support such a conclusion. Agent Hadden testified that Mr. Kirkland stated, “Go ahead and search the car and look. I don’t have any dope on this car.” Verbal consent to a warrantless search has been sustained on another occasion under similar circumstances. Osner v. State, 54 Ala.App. 520, 310 So.2d 241, cert. denied 293 Ala. 769, 310 So.2d 247, cert. denied 423 U.S. 871, 96 S.Ct. 137, 46 L.Ed.2d 101. The record here, as seen from above, affirmatively establishes that Mr. Kirkland’s consent to the search was freely and voluntarily given, thereby dispensing with the necessity of the state’s obtaining a warrant.

II

The pertinent provisions of Tit. 22, § 258(57), Code of Alabama 1940, the statute authorizing the seizure and forfeiture in this case, are as follows:

“(a) The following are subject to forfeiture:
“(4) All conveyances, including aircraft, vehicles or vessels, which are used, . to transport, or in any manner to facilitate the transportation, for the purpose of sale or receipt of property described in paragraph (1) or (2), .
“(b) Property subject to forfeiture . may be seized by state, county, or city law-enforcement agencies . . Seizures without process may be made if:
“(4) The state, county, or city law enforcement agency has probable cause to believe that the property was used or is intended to be used in violation of this chapter.
“(c) In the event of seizure pursuant to subsection (b), proceedings under subsection (d) shall be instituted, promptly.
“(d) Property taken or detained under this section shall not be subject to replev-in but is deemed to be in the custody of the state, county, or city law-enforcement agency subject only to the orders and decrees of the court having jurisdiction over the forfeiture proceedings. When property is seized under this chapter, the state, county, or city law-enforcement agency may:
“(1) Place the property under seal;
“(2) Remove the property to a place designated by it; or
“(3) Require the state, county, or city law-enforcement agency to take custody of the property and remove it to an appropriate location for disposition in accordance with law.”

The reference in (a)(4) to “property described in paragraphs (1) or (2)” is to controlled substances, in this case, marijuana.

As stated, supra, the constitutionality of the statute is questioned on two grounds. First, it is asserted that the seizure without a prior hearing is a deprivation of property without due process of law.

Such a contention has, to this court, been resolved in favor of the state by the decision of the Supreme Court of the United States in Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663, 94 S.Ct. 2080, 40 L.Ed.2d 452 (1974). There, after marijuana had been found aboard, a leased pleasure yacht was seized pursuant to a Puerto Ri-can statute providing for forfeiture of vessels used in the transportation of contraband. The statute did not provide for a preseizure hearing. The lessor-owner of the yacht contended that lack of preseizure notice and hearing constituted a denial of due process. The Court, citing Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972), held otherwise.

“Fuentes reaffirmed, however, that, in limited circumstances, immediate seizure of a property interest, without an opportunity for prior hearing, is constitutionally permissible. Such circumstances are those in which

“ ‘the seizure has been directly necessary to secure an important governmental or general public interest. Second, there has been a special need for very prompt action. Third, the State has kept strict control over its monopoly of legitimate force: the person initiating the seizure has been a government official responsible for determining, under the standards of a narrowly drawn statute, that it was necessary and justified in the particular instance.’ . . . ” (416 U.S. at 678, 94 S.Ct. at 2089)

The Court further declared that the conditions enumerated in Fuentes justifying postponement of notice and hearing were present in this case. Quoting further from Calero-Toledo, supra:

“First, seizure under the Puerto Rican statutes serves significant governmental purposes: Seizure permits Puerto Rico to assert in rem jurisdiction over the property in order to conduct forfeiture proceedings, thereby fostering the public interest in preventing continued illicit use of the property and in enforcing criminal sanctions. Second, preseizure notice and hearing might frustrate the interests served by the statutes, since the property seized — as here, a yacht — will often be of a sort that could be removed to another jurisdiction, destroyed, or concealed, if advance warning of confiscation were given. And finally, unlike the situation in Fuentes, seizure is not initiated by self-interested private parties; rather, Commonwealth officials determine whether seizure is appropriate under the provisions of the Puerto Rican statutes. ...” (416 U.S. at 679, 94 S.Ct. at 2089)

We deem the immediately preceding quoted language to be fully applicable to the Alabama statute here in question.

In addition to the rationale of Calero-To-ledo, supra, for support of the conclusion that the Alabama statute is constitutional, federal seizure statutes nearly identical to Tit. 22, § 258(57), Code of Alabama 1940, have on numerous occasions weathered attacks identical to those presented by Mr. Kirkland.

21 U.S.C., § 881(a), is nearly identical to Tit. 22, § 258(57)(a), Code of Alabama 1940. It provides for forfeiture of vehicles used in the transportation of controlled substances. Likewise, 49 U.S.C., §§ 781-89, is similar in import to Tit. 22, § 258(57), Code of Alabama, but it additionally provides for seizure and forfeiture of vehicles used in the transportation of various types of contraband in addition to controlled substances; i. e., illegal firearms, counterfeit money, etc. Forfeiture proceedings under 21 U.S.C., § 881, and 49 U.S.C., §§ 781-89, are governed by the customs laws procedures delineated in 19 U.S.C., .§ 1602, et seq. 19 U.S.C., § 1602 et seq., does not provide for preseizure notice and hearing. As previously stated, numerous cases hold that the absence of preseizure notice or hearing provisions does not render this statute unconstitutional. United States v. One 1967 Porsche, Model 911 Targa, Serial Number 500-677, Motor Number 912-018, 492 F.2d 893 (9th Cir. 1974); Bramble v. Richardson, 498 F.2d 968 (10th Cir. 1974), cert. denied 419 U.S. 1069, 95 S.Ct. 656, 42 L.Ed.2d 665; Lee v. Thornton, 398 F.Supp. 970 (D.Vt. 1975), reversed on other grounds 420 U.S. 139, 95 S.Ct. 853, 43 L.Ed.2d 85; Fell v. Armour, 355 F.Supp. 1319 (M.D.Tenn.1972).

The import of these cases corresponds to the rationale of the Supreme Court in Cale-ro-Toledo, supra. The predominant interest of the state in protecting the public welfare is sufficient justification to dispense with preseizure notice and hearing under circumstances requiring prompt action. We agree. Accordingly, Mr. Kirkland’s first contention concerning the constitutionality of Tit. 22, § 258(57), of the Code is without merit.

His second contention concerns the absence of a provision in Tit. 22, § 258(57), whereby the owner of the confiscated property may post bond and secure the property for his use pending the hearing on the merits concerning the seizure. He maintains the absence of such a provision renders the statute unconstitutional. No cases devoting attention to this express point, under either Alabama or Federal law, have come to our attention. However, our reading of the cases discloses no constitutional imperative requiring such a provision.

The essence of due process requires that the aggrieved party be given a prompt opportunity to adjudicate his claims. Subsection (c) of Tit. 22, § 258(57), Code of Alabama, requires that, “In the event of seizure pursuant to subsection (b), proceedings under subsection (d) shall be instituted promptly.” [Emphasis supplied.] Although subsection (d) does not expressly state that judicial proceedings are necessary in all forfeiture proceedings, we deem that to be the intent of the legislature as manifested by a joint reading of Tit. 22, § 258(57)(c) and (d). We here construe the statute to require judicial proceedings in all forfeiture actions initiated pursuant to Tit. 22, § 258(57). Moreover, the plain language of the statute requires such proceedings to be instituted promptly.

The necessity of prompt action to adjudicate the merits of the seizure and to effectuate the forfeiture is what is constitutionally required. United States v. A Quantity of Gold Jewelry, 379 F.Supp. 283 (C.D.Calif.1974); See Lee, supra; United States v. One (1) 43 Foot Sailing Vessel, 405 F.Supp. 879 (S.D.Fla.1975); United States v. One Volvo Sedan, L. No. 861 DQF, 393 F.Supp. 843 (C.D.Calif.1975); Boston v. Stephens, 395 F.Supp. 1000 (S.D.Ohio 1975). In other words, the want of a bond provision in the statute does not render it constitutionally defective so long as it provides interested parties the right to a prompt hearing. Cf. cases cited, supra, in this paragraph.

It should be pointed out that our conclusion is supported by the analogous Federal statutory scheme. 19 U.S.C., § 1602 et seq., has no mandatory provisions whereby the owner of the property may post bond and obtain his property prior to the hearing. As already stated, the constitutionality of this statute has been repeatedly upheld. What is required under 19 U.S.C., § 1604, is that where judicial proceedings are required, they be brought “immediately.” Tit. 22, § 258(57)(c), Code of Alabama, requires that judicial proceedings be instituted “promptly.” We perceive no difference in the above quoted language. Here, as seen from the above, the proceedings were instituted approximately two weeks after the service, which is clearly “prompt” or “immediate.”

Due process compels a balancing between the respective interests of the parties. The state is charged with the task of providing for the welfare of its citizenry. On the other hand, the individual citizen is entitled to enjoyment of his property which is to be interrupted only in accordance with the edicts of the Constitution. Here, the individual’s dominion over his property is only temporarily postponed pending the prompt initiation of judicial proceedings to determine the propriety of the seizure.

Moreover, the interruption is occasioned by the state’s performance of one of its most significant functions; i. e., the enforcement of laws promoting the general welfare of the population. We do not deem this interruption to constitute an unreasonable deprivation of property forbidden by the Constitution. Hence, Mr. Kirkland’s second contention is also without merit.

It follows that the judgment of the trial court is to be affirmed. It is so ordered.

AFFIRMED.

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


author: EMBRY, Justice.

text:
    Ex parte Damon Lee KIRKLAND.
    SC 2245.
    Supreme Court of Alabama.
    Jan. 7, 1977.
   EMBRY, Justice.

WRIT DENIED.

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


author: WRIGHT, Presiding Judge.

text:
    Jimmy W. CRAIG v. DECATUR PETROLEUM HAULERS, INC.
    Civ. 871.
    Court of Civil Appeals of Alabama.
    Nov. 10, 1976.
    Rehearing Denied Dec. 8, 1976.

      Rodney B. Slusher, Florence, for appellant.
    Bradshaw & Barnett and Ralph M. Young, Florence, for appellee.
   WRIGHT, Presiding Judge.

This is a workmen’s compensation case. Plaintiff appeals from a judgment finding him not an employee of defendant Decatur Petroleum Haulers, Inc., hereinafter called Decatur. We reverse.

The trial court heard extensive oral testimony and made finding of facts and conclusion of law. A material part of the finding of fact appears in paragraphs 2 and 3 as follows:

“(2) The court further finds that the lease agreement between Edmonds and Decatur Petroleum provided for Edmonds to pay all costs of operating the vehicle, including the wages and other payment due by reason of owner’s employment of drivers or other labor, all payroll taxes, workmen’s compensation, fuel tax fees, drivers license fees, fuel, oil, gasoline, tires, parts, repair, fines or driver’s salaries. That the lease further provided that the details of the operation of the leased equipment were to be vested in the driver and that Decatur Petroleum had no such authority to control except as required by law.
”(3) It’s the further finding of the court that the above terms of the lease were complied with by both parties and that the owner, Edmonds, in fact paid all of the operating expenses, including the driver’s salary, and that Edmonds was the party responsible for the discipline of his driver Craig.”
. . the court having considered this issue in light of all evidence elicited during a hearing held in open court, it is therefore, the finding of this court that Jimmy W. Craig was not an employee of defendant, Decatur Petroleum Haulers, Inc. and that therefore this defendant is not liable under the provisions of the Alabama Workmen’s Compensation Act to this plaintiff.”

In a workmen’s compensation case an appellate court looks at the record only to determine if the finding of fact of the trial court is supported by any legal evidence and if the law has been properly applied to the facts. Boatright v. Dothan Aviation Corporation, 278 Ala. 142, 176 So.2d 500.

We have closely examined the entire transcript of the evidence and fail to find support for some of the material facts found by the court and which were considered by the court in application of the law.

Plaintiff was injured while driving a tractor-trailer truck loaded with gasoline. The tractor was owned by Edmonds, the trailer by Decatur. The cargo of gasoline was the property of Hunt Oil Co. There was evidence that Edmonds had leased his tractor to Decatur. The written lease was not introduced in evidence. There was considerable testimony as to its provisions.

The tendency of such evidence was as follows:

Edmonds leased the tractor to Decatur; Edmonds was to furnish a driver and pay for the fuel used by the truck; the driver was to be tested and examined by Decatur to determine his capability and qualifications under rules of the Interstate Commerce Commission (ICC) and Department of Transportation (DOT); Decatur operated under ICC and DOT rules and regulations; Edmonds was to be paid 65% of the revenue received from the operations of the tractor-trailer; trailers were the property of Decatur or others; Decatur was to carry liability insurance upon the rig.

Testimony as to the manner of operation of the parties under the lease showed the following: Plaintiff had not been an employee of Edmonds prior to the lease with Decatur; Edmonds sent him to Decatur as a prospective driver; Decatur gave him oral, written and road tests and inquired of his experience and driving record; plaintiff was returned to Edmonds with the approval of Decatur and with a recommendation as to payment for services; Decatur recommended that plaintiff be paid 20% of gross revenue per week; plaintiff was employed and began work; he was dispatched entirely by Decatur or by others to whom Decatur may have let his services; he kept daily trip logs required by Decatur and filed them with Decatur; he was authorized to charge fuel to Decatur, which was charged back to the account of Edmonds; he was directed where and when to go entirely by Decatur; he was directed by Decatur to comply with all rules of the ICC; the tractor carried the name and ICC number of Decatur; Decatur hired out the use and services of both driver and tractor to other oil companies and distributors without permission of Edmonds. Edmonds had no voice in directing the day-to-day activities of plaintiff, and had no knowledge of where he went; if Edmonds wished to locate plaintiff during working hours, he would have to contact Decatur’s dispatcher; if plaintiff violated any rules of the ICC or of Decatur, he would be discharged by Ed-monds or the lease would be cancelled by Decatur; Edmonds paid plaintiff 20% according to the record of his work provided by Decatur.

Much of what we found the evidence to be in the record is contrary to the finding of fact contained in the judgment of the trial court. For instance, the court found that the lease agreement provided that Edmonds pay all costs of operating the vehicle including wages and other payments due by reason of employment of drivers and other labor. As hereinbefore quoted, there were enumerated twelve items to be paid including workmen’s compensation. We find no testimony or exhibit as to such matters except that of payment to driver of a percentage of receipts and the charging of gasoline to the account of Edmonds when paid for by Decatur.

The court further found that the lease provided that the details of the operation of the leased equipment were to be vested in the owner and that Decatur had no authority to control except as required by law. As we have stated, the lease was not placed in evidence, and we find the testimony as to the operations of Decatur under the lease to be contrary to the finding of fact by the court.

It is well settled law in this state that in determining whether an employer-employee relationship exists, the court looks to the right of control, either actually exercised or reserved. In the last analysis it is the reserved right of control rather than its actual exercise that provides the answer. Tuscaloosa Veneer Co. v. Martin, 233 Ala. 567, 172 So. 608; C. E. Adams & Co. v. Harrell, 257 Ala. 25, 57 So.2d 83. The testimony unequivocally indicates actual exercise of control by Decatur in the details of plaintiff’s daily activities on the job. The tendency of the evidence is that directly or indirectly, Decatur possessed right of control under the terms of the lease.

The Workmen’s Compensation Act defines an employer as any person, corporation, etc., who employs another to perform a service for hire and to whom the employer directly pays wages. Decatur contends it does not fall within the definition because it neither hired plaintiff nor paid wages to him.

An examination of cases involving determination of the existence of an employer-employee relationship indicates that though mention has been made of the statutory definition, ultimately the answer was derived from the application of the reserved right of control test. Tuscaloosa Veneer Co. v. Martin, supra, and cases cited therein on page 570. This court must conclude that the statutory definition of an employer is not the only basis for determining the relationship of employer and employee for coverage under the Workmen’s Compensation Act. Such definition does not strictly cover the loaned or dual employee which is recognized as covered in 1A Larson, The Law of Workmen’s Compensation, § 48 (1973). We cannot accept the purpose of the legislature to limit coverage of workmen’s compensation to one who is subject to control of one and serving his interest, but is paid wages or commission by another through agreement or contract.

The Supreme Court of Alabama has held that an owner-driver of a truck operating under a lease, apparently very similar to that in this case, was an employee rather than an independent contractor. Hays v. Deaton Truck Line, 264 Ala. 442, 87 So.2d 825. Adams & Co. v. Harrell, supra; Deaton Truck Line v. Acker, 261 Ala. 468, 74 So.2d 717. The court has further held such an employee to be covered under the Workmen’s Compensation Act in the case of Stevens v. Deaton Truck Line, 256 Ala. 229, 54 So.2d 464. We conclude that through the reservation of the right of control over the driver in the lease between Decatur and Edmonds, plaintiff was in fact an employee of Decatur under the common law and the Workmen’s Compensation Act. Such right of control is exemplified by the right of Decatur to pass upon his application for employment and subject him to tests and rules of the ICC and the Department of Transportation; the right to sublet his services to others; the right to direct every activity of his work; the right to dispatch and recall; the right to discipline him or bring about his dismissal through power of cancellation of the lease; the responsibility for his performance under ICC regulations; the fact that the only right to perform on his job was derived from the permit granted to Decatur Petroleum by the ICC.

The United States Court of Appeals, Fifth Circuit, in the case of N.L.R.B. v. Deaton, Inc., 502 F.2d 1221, cert. denied, 422 U.S. 1047, 95 S.Ct. 2665, 45 L.Ed.2d 700, upheld a finding of an employer-employee relationship between Deaton and non-owner drivers operating under leases similar to that here. In that case, the court applied the right of control test as we have done here. The Supreme Courts of Florida and Mississippi have reached similar conclusions. Rainbow Poultry Co. v. Ritter Rental System, Inc., 140 So.2d 101 (Fla.); Burnham Van Service, Inc. v. Dependents of Moore, 250 Miss. 165, 164 So.2d 733.

The court finds that the finding of material fact made by the trial is not supported by the evidence. The court further finds that the court misapplied the law to the evidence when it held that the relationship of employer and employee did not exist between Decatur Petroleum Haulers, Inc. and plaintiff Jimmy Craig. We therefore reverse and remand.

REVERSED AND REMANDED.

BRADLEY and HOLMES, JJ., concur.


text:
    Ex parte DECATUR PETROLEUM HAULERS, INC.
    SC 2279.
    Supreme Court of Alabama.
    Jan. 7, 1977.
   EMBRY, Justice.

WRIT DENIED.

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