author: LANDRY, Judge. PER CURIAM.

text:
    Herb BOXILL v. C. E. METRAILER et al.
    No. 11908.
    Court of Appeal of Louisiana, First Circuit.
    March 20, 1978.
    Per Curiam On Denial of Rehearing May 1, 1978.
    Arthur Cobb, Baton Rouge, of counsel, for plaintiff-appellee Herb Boxill.
    W. L. Wilson, Frank Fertitta, Henry Sa-lassi, Jr., Baton Rouge, of counsel, for defendant-appellant C. E. Metrailer.
    Michael Ponder, Baton Rouge, of counsel, for defendant-appellee Charles Hogg.
    Before LANDRY, SARTAIN and ELLIS, JJ.
   LANDRY, Judge.

Defendant, C. E. Metrailer (Appellant), appeals from judgment awarding plaintiff (Appellee) $12,500.00 in compensation for damages caused Appellee’s property by Appellant’s obstruction of natural drainage from Appellee’s dominant estate onto Appellant’s servient estate. The trial court rejected Appellee’s claim for damages against defendant Charles Hogg (who also owns an estate servient to that of Appellee) and further rejected Appellee's claims for injunctive relief ordering defendants to remove certain obstructions. Plaintiff did not appeal rejection of his demands against Hogg, but chose, instead, merely to answer Metrailer’s appeal. For procedural reasons hereinafter set forth, we affirm the judgment, rejecting plaintiff’s demands against Hogg. We amend the judgment to order Appellant to take certain curative action to remove obstructions created by Appellant.

THE CASE AGAINST HOGG

Judgment was rendered on June 7, 1977, and notice thereof mailed that same day. Appellant timely filed a motion for new trial, which was denied June 28, 1977. On the same date, Appellant applied for and was granted a suspensive appeal. Bond was posted by Appellant on July 15, 1977. The return date was fixed for August 26, 1977, and extended and the record lodged in this court on November 28, 1977. On November 29, 1977, plaintiff filed an “Answer to appeal of defendant-Appellant C. E. Metrailer and appeal against defendant-Appellee Charles Hogg”. Pursuant thereto plaintiff maintains that he has “appealed” against Hogg and is entitled to the relief sought against Hogg and denied by the trial court. In so contending, plaintiff relies upon La. C.C.P. Article 2133, which we find inapplicable. Article 2133 provides that an answer to an appeal is equivalent to appeal from any portion of the judgment rendered against the party answering the appeal in favor of appellant, and of which the answering party complains in his answer. In interpreting this article, the Supreme Court held in Shelton v. Aetna Casu alty Company, 334 So.2d 406 (La.1976) that this article does allow an appellee relief from any portion of a judgment rendered against him in favor of appellant without appellee having to take his own appeal. The Supreme Court noted, however, that an answer to an appeal does not have the effect of an appeal with respect to any portion of the judgment rendered against appellee in favor of a party who has not appealed. Since Hogg did not appeal and Appellee did not appeal the judgment dismissing his action against Hogg, the judgment in favor of Hogg has become final and may not be reviewed on this appeal.

BACKGROUND INFORMATION

It is conceded that defendants’ estates are servient to plaintiff’s. The properties involved form the southern end of a 110 acre watershed which slopes and drains generally from north to south and forms a rough elongated “V”. Prior to 1968, Me-trailer purchased acreage situated at the bottom of the “V” and fronting on the west side- of a narrow street or road known as Bluebell Drive, which has an elevation of approximately 20 feet. Adjacent to Bluebell Drive, the land is, in places, at about the level of the road and slopes off westerly into a very low and swampy area at the rear. Shortly after acquisition, Metrailer began filling and shaping the land preparatory to selling the northern portion thereof. After considerably improving his tract, Me-trailer sold Hogg a parcel fronting on a circle on Bluebell Drive, and extending westerly to within about 68 feet of Metrailer’s western boundary, leaving Metrailer a 68 foot wide strip behind Hogg. The Boxill property is immediately north of Hogg.

The 68 foot strip owned by Metrailer and situated behind Hogg is acknowledged to be a natural drainage swale generally sloping to the south. At the southwest comer of Hogg’s land, this natural drain makes what amounts to a right angle turn to the east and thence runs adjacent to Hogg’s southern boundary a distance of about 300 feet to Bluebell Drive. This portion of the swa-le, entirely on Metrailer’s land, is 60 feet wide. At Bluebell Drive, an outlet culvert is situated in the swale to carry water under the road.

Plaintiffs property, lying north of Hogg’s, has comparatively little frontage on Bluebell Drive. The tract is vaguely panhandled in shape, the handle comprising the southeast corner of the land and constituting its entire frontage on Bluebell Drive. At the northwest corner of the handle, the tract widens to 5 or 6 times its road frontage and forms a rough rectangle, extending in a northerly-southerly direction.

Northeast of plaintiff’s northeast corner there is an artificial lake known as Mea-dowlea Lake and directly north of plaintiff’s northern boundary is another artificial lake known as Sylvest Lake. Both lakes are on lands of persons not parties herein. The lakes were created in part by their owners dredging low spots and erecting dams between the lower ends of their lakes and plaintiff’s lands. The Meadowlea Lake dam virtually abuts plaintiff’s property. The Sylvest Lake dam is a short distance north of plaintiff’s northern boundary. Both lakes result in some seepage onto plaintiff’s property due to ground saturation, even during dry periods.

When Appellant purchased the land, it was considered “wild”. Although comparatively high in spots near Bluebell, it tapered off into a low swampy area at its western extremity where it was swampy, overgrown with brush and trees, and had low spots which held water.

When plaintiff made his purchase, a considerable portion of plaintiff’s water drained across Hogg’s tract near Bluebell. The remainder drained to the west, following the natural slope of the land, into the swale behind Hogg and thence into the swale along Metrailer’s northern boundary from where it drained through the outlet beneath Bluebell. The culvert is made of corrugated metal, oval in shape and measures 27 X 43 inches. It is 33 feet long and its inverse or inlet end, west of Bluebell, is set at an elevation of 15.78 feet. This culvert was apparently installed by a former owner who is not a party herein. It is the only means of outlet from the natural swale drain which is otherwise blocked by Bluebell. The outlet end of this culvert discharges into a lake east of Bluebell. The lake empties into a canal or ditch which flows easterly or southeasterly into Bayou Duplantier about lk mile east of Bluebell. Bayou Duplantier, which flows south has a normal elevation of 9 feet. Before Metrailer made improvements, water flowed out of the drainage swale during rainy weather through the culvert under Bluebell. When the flow exceeded the 70 cubic feet per second capacity of the culvert, which is about Vs of the 210 cubic feet per second runoff produced by the entire watershed, water rose in the swale until it reached the elevation of Bluebell road and overflowed. This happened and still happens with some frequency. At times Bayou Duplantier, which is in need of clearing and enlarging, overflows and backs up so that water runs from the Bayou northerly and westerly across Bluebell onto litigants’ properties instead of the process being reversed. This reverse flow continues until the Bayou recedes and resumes its normal flow. This also is a fairly common phenomenon. A tree partly obstructs the outlet end of the culvert beneath Bluebell and the outlet ditch or canal east of Bluebell is partly obstructed by growth, both of which conditions are beyond Appellant’s control.

Shortly after his acquisition in 1968, Appellant commenced clearing his land. He removed trees and debris from the natural channel. He added approximately 1100 loads of dirt, some in the channel area, in preparing the land for building his home and making a portion thereof attractive to a potential buyer. To the drain under Bluebell, Appellant added an additional 100 feet of corrugated pipe measuring 31 by 50 inches. At the westerly end of this addition, he constructed a catch basin to which he attached an additional 200 feet of 36 inch reinforced concrete pipe. This 300 foot addition runs westerly from Bluebell to about the southwest corner of Hogg’s land. Appellant laid the added pipe in a 2V2 foot trench and covered the pipe with dirt to a depth of about four feet. The elevation of the fill over the pipe equals or exceeds the elevation of Bluebell in some spots. The invert of the added pipe is 3 inches above the level of the invert of the drain beneath Bluebell. The addition of this pipe and fill has raised channel levels thus reducing its capacity as a ponding or storage area when the pipe beneath Bluebell is at capacity flow. In addition, the ponding which formerly took place within the 60 foot servitude area along Metrailer’s northern boundary has been shifted and moved northward to the southwest corner of plaintiff’s land.

Plaintiff purchased his land in 1968, and began preparation for a homesite near Bluebell. He brought in about 40 loads of dirt and graded the area where his house was built. He elevated the living quarters portion of the house approximately 6 feet above the ground. To take care of the seepage from Meadowlea and Sylvest Lakes, which exists even during dry spells, plaintiff dug small ditches leading from each dam to channel the water into the swale behind the Hogg tract. The front portion of plaintiff’s tract, which originally drained across the Hogg tract, became blocked when Hogg built his home and constructed a driveway along the northern boundary of Hogg’s land. Hogg elevated the driveway to the extent that it forms a dam blocking the natural southerly flow and causes reverse drainage from Hogg’s land onto plaintiff’s. This reverse flow has caused erosion along plaintiff’s southern boundary adjacent to Hogg’s driveway. Plaintiff did some corrective work at the rear of his land, including the southwest corner which adjoins the swale behind the Hogg land. In this area, plaintiff removed some trees and brush and did some contouring of the land, maintaining, however, the southerly flow. Some low spots remain in this area of plaintiff’s land where water collects during rains.

In 1969, plaintiff complained to local authorities that work being done by Appellant was altering natural drainage facilities. On October 24, 1969, Appellant received a letter from the Department of Public Works, cautioning Appellant not to place any fill on his land which might alter natural drainage without prior approval from the Department. Appellant was also advised to submit for approval any work proposed to be done. On May 29, 1973, plaintiff again complained to the authorities. Appellant was again warned in writing by Charles Hair, employee of the Department of Public Works, not to alter drainage facilities without approval. On January 21, 1975, Appellant was advised by the Department of Public Works that a requested occupancy permit would not be issued until Appellant obtained approval of the drainage work done. On March 24, 1975, the Department advised Appellant that the added drain pipes would raise water levels about 0.43 feet at the upper end when the pipe was flowing full. Appellant was also advised that the situation could be corrected by Appellant dedicating a servitude across the natural drain west of Hogg and along Appellant’s north property line and the grading out of a large swale over the existing pipe as it was before Appellant’s alteration of the channel. It was also recommended that Appellant grade the entire area to a swale with a bottom elevation of 19 feet at the pipe entrance and having 11H:IV side slopes and further that the entire area be maintained open with no buildings or fill therein. Appellant has since made an informal servitude dedication of the natural drainage area as shown on a survey made for Appellant by Clary & Associates, Consulting Engineers, dated February 12, 1977. This map does not appear to have been placed in the public record.

THE ISSUES

Plaintiff contends that Metrailer’s addition of the pipe and fill in the natural drain area causes ponding to take place at the southwest corner of plaintiff’s land instead of on Appellant’s lower lands as was the case previously. Plaintiff also contends that this obstruction causes water to stand on his land for longer periods than before, causing the land to remain wet and damp so that grass no longer grows in the area, thus creating an unusable boggy area which plaintiff could maintain as a lawn prior to the obstructions created by Appellant.

Appellant acknowledges his obligation to accept all water from above but contends: (1) Improvements in the upper watershed consisting of construction of homes, driveways, swimming pools and other structures covering ground surface have drastically reduced ground absorption capacity, creating a significant increase in flow which must eventually pass through the natural channel on his property, and that he is entitled to relief therefrom; (2) Plaintiff has made changes on his own property which have increased the rate and direction of flow onto Appellant’s land; and (3) Part of plaintiff’s runoff problem is due to collection of debris in low spots at the rear of plaintiff’s land and along fence lines erected by plaintiff and the erection of dams by plaintiff to protect his lands from overflow and seepage from the Meadowlea Lake and Sylvest dams above.

THE EVIDENCE

Mr. Leo Jackson Muse, former employee of the Department of Public Works, testified as to his familiarity with the area in question. He was aware that the road elevation of Bluebell is 20 feet and that the southwest corner of plaintiff’s property is approximately 18 feet wher.e it joins the natural swale behind Hogg’s land. He wrote the letter sent to Appellant on October 24, 1969. Prior to writing the letter, he investigated plaintiff’s complaint and advised Appellant that Appellant could not fill the drain above road level. He authorized (apparently verbally) Appellant to install a 36 inch drain where water formerly collected near the road. He acknowledged that the culvert under the road was insufficient to handle the entire runoff but he allowed Appellant to fill the drain so long as the fill did not exceed road level. In this way, according to Muse, water would flow over the added pipe and across the road as before when the outlet pipe reached capacity. He acknowledged that the added pipe had the effect of extending the ponding area northerly and westerly to the end of the addition. He felt, however, that the effect of the ponding on plaintiff’s property was minimal because the water level on plaintiff’s land was raised only about Vi foot and such excess drains off in about a three hour period even during excessive rainfall periods.

Dr. Frank Germano, Civil Engineer, testifying for Appellant, maintains that the work done by Appellant facilitates drainage from plaintiff’s land and dries plaintiff’s low swampy area better than before. He also contends that much of plaintiff’s problem is from seepage (ground saturation) resulting from construction of Meadowlea Lake and Sylvest Lake. Further, he stated that his inspection showed that collection of water on plaintiff’s land is due mainly to holes, brush, trees and debris which either collect water in low places or impede runoff from plaintiff’s land. He also acknowledged that the invert of the pipe under the road is at 15.78 feet; the invert of Appellant’s addition is 14.8 and the invert of Appellant’s catch basin (where the concrete pipe addition joins the corrugated pipe addition) is 15.26 feet.

Mr. and Mrs. Boxill testified in essence that before Appellant commenced filling his land there was no problem with drainage. Water flowed normally from plaintiff’s land across what is now the Hogg property, and also flowed to the rear and west into the natural channel behind Hogg. Since the addition of pipe, water ponds in the southwest corner of plaintiff’s tract and remains for 24 hours or more following heavy rains. The area of ponding on plaintiff’s property which was usable before and could be mowed and maintained is now a bog or swamp which remains wet and soggy such that grass will not grow thereon, and the area has become an eyesore.

Mr. and Mrs. Boxill further stated that Hogg elevated his driveway situated adjacent to plaintiff’s southern boundary, creating a dam which effectively blocked the southerly flow from plaintiff’s land in this area. Plaintiff concedes that all water drains from his lands as before but that the rate of runoff has been impeded significantly resulting in problems not previously-experienced.

Charles W. Hair, Civil Engineer, employee of the Department of Public Works, acknowledged receiving a complaint from plaintiff in 1969. Thereafter his staff had numerous conferences with Appellant. He informed Appellant to do no work without approval. In 1973, following another complaint from plaintiff, he again directed Appellant to do no work without approval. In Hair’s opinion, the principal problem created by Appellant’s improvement is elimination of the former swale in the natural drainage channel. He so found because the pipe installed by Appellant carried very little flow during heavy rains when the bulk of the flow was imponded west of Bluebell Drive until water level reached road level and overflowed the road. He believes that the pipe under Bluebell is sufficient to drain only “dry weather water”, meaning in general the water produced by seepage from lakes above plaintiff’s property and during light or ordinary rains. He instructed Appellant to add no pipe to the outlet culvert because said facility served little purpose, and not to put any fill whatsoever in the natural drain. He stated that the pipe and fill in the drain area in effect served only to occupy what was formerly storage area in the natural drain and caused the ponding to commence at the inlet of the pipe. He suggested that defendant dedicate a servitude of drain over and across the 68 foot wide natural drain behind Hogg’s land and the continuation thereof in the form of a natural 60 foot drain along the northern boundary of Appellant’s land from its western boundary easterly to Bluebell Drive. He also recommended that Appellant leave the pipe in place but remove all fill and restore the swale which formerly existed. Hair believed that such curative measures would effectively restore all parties to their former situations.

William Addison, Civil Engineer in the employ of the Department, testified that Appellant filled an estimated area four feet deep, 200 feet long west of Bluebell Drive. He agreed with Hair that the fill moved the ponding area from Appellant’s land back to plaintiff’s property. He maintained, however, that this result was of little effect because it raised the water level on plaintiff’s land about 5V2 inches only and that the extra water collected on plaintiff’s land ran off within about 3 hours and was of little consequence.

J. S. Durrett, Civil Engineer, employed by the Department, corroborated Hair in general. He noted that while plaintiff’s land still drains onto Appellant’s, the work erected by Appellant has produced a significant increase in runoff time. His appraisal of existing conditions led to the conclusion that proper drainage was possible only by the installation of two 48 inch lines of concrete pipe laid beside the existing line running under Bluebell west a distance of 300 feet and ending at the end of the existing pipe, a total length of 330 feet. In addition, the servitude area behind Hogg’s property requires grading to a gentle swale leading to the inverse ends of the three drains.

Fred L. Goodman, Civil Engineer, contract estimator for a large contracting firm, reviewed Durrett’s plans for the above suggested curative work and estimated the cost thereof to be $39,000.00. He also estimated the cost of curing the reverse drainage from Hogg, by constructing a 60 foot retaining wall north of Hogg’s driveway, to be $7,500.00.

FACTUAL FINDINGS

The trial judge found that the works erected by Hogg and Appellant did impede the flow of water from plaintiff’s dominant estate. He also concluded that damage to plaintiff, though minimal, would be continuous, but that the cost of cure would be out of proportion to the resulting damage. For that reason, he declined to order the injunc-tive relief requested by plaintiff.

Although the evidence is conflicting, we fully concur in the trial court’s finding that the works erected by Appellant in the natural drain area has impeded flow in this natural channel and causes water to pond on plaintiff’s property to a significantly greater degree and duration than before. We also share the trial court’s finding that this added degree and duration of ponding has caused formerly usable portions of plaintiff’s land to become unusuable and unsightly because ground formerly dry now remains so wet that grass will not grow.

THE APPLICABLE LAW

The respective rights and obligations of the parties herein are governed by La.C.C. Articles 659 and 660, which provide:

Art. 659. Servitudes arise either from the natural situation of the places, from the obligations imposed by law, or from contract between the respective owners.
Art. 660. It is a servitude due by the estate situated below to receive the waters which run naturally from the estate situated above, provided the industry of man has not been used to create that servitude.
The proprietor below is not at liberty to raise any dam, or to make any other work, to prevent this running of the water.
The proprietor above can do nothing whereby the natural servitude due by the estate below may be rendered more burdensome.

In denying plaintiff injunctive relief, the trial court relied upon Adams v. Town of Ruston, 194 La. 403, 193 So. 688 (1940) and Young v. International Paper Co., 179 La. 803, 155 So. 231 (1934). In Young, the court declined to issue an injunction which would have closed a large paper mill upon finding that plaintiff could be compensated in damages for harm already done by waste discharges and that future damages would be negligible. The court concluded that in such cases, injunctive relief is discretionary with the trial court; that balancing of equities was in order; and, that denial of in-junctive relief is proper when damages may be compensated monetarily and that the granting of such relief would subject defendant to a grossly disproportionate hardship. Adams reached substantially the same result for the same reasons when the court declined to enjoin flow from a municipal swimming pool upon finding that the damage to the dominant estate was relatively minor.

More recently, in Poole v. Guste, 261 La. 1110, 262 So.2d 339 (1972), the Supreme Court reassessed and apparently limited application of the rule applied in Young and Adams. In Poole, the court noted that denial of injunctive relief had been ordered in only the two cited cases which involved “very exceptional situations”. Such exceptional circumstances were found lacking in Poole and the owner of the servient estate was enjoined to remove drainage obstructions. In so decreeing, the court noted:

“The relegation of a landowner to compensatory damages instead of to injunc-tive relief for violation of his property right was permitted, so far as we know, in only the two cited cases concerning very exceptional situations, 27 La.L.Rev. 440 (1967), 22 La.L.Rev. 316 (1962), 3 La. L.Rev. 281-82 (1941), and never so as to deny protection of a servitude due by a servient estate to a dominant estate. See Esnard v. Cangelosi, 200 La. 703, 8 So.2d 673 (1942), noted 5 La.L.Rev. 141 (1941). In any event, the substantial damage here caused the dominant Poole estate by the blocking of drainage from it, and its substantial interference with the right of the Pooles to use their own property for their own purposes (the profitable growing of timber), Article 667, make inappropriate any consideration here of whether such a balancing of the equities is ever permissible to deny an owner protection of his property right by, in effect, granting his offending neighbor the right to pay damages instead of terminating such neighbor’s continuing disturbance.”

We think Poole, above, makes it clear that unless there is some substantial interest to be served, the rule in Young and Adams, above, will henceforth be given limited application and owners of dominant estates will be awarded injunctive relief even though the cost of cure may be substantial, unless a very exceptional situation is presented. We find no such exceptional situation in this instance.

We do not reach Appellant’s claim for relief on the ground that his obligation has been made more burdensome by works constructed by owners above. Except for plaintiff, the owners of the.upper estates are not parties herein and their rights and/or obligations may not be adjudicated in absentia. As regards plaintiff, the record fails to establish that improvements on plaintiff’s land have increased the flow of water onto Appellant’s land in such degree as to entitle Appellant to relief.

We conclude that the curative work recommended by Mr. Hair appears most plausible and will restore the situation substantially to the condition which existed before Appellant placed the pipes and fill in the drainage channel. Accordingly, we will order this plan implemented. Alternatively, Appellant will be ordered to effectuate the plan suggested by Durrett.

It is ordered, adjudged and decreed that the judgment rendered by the trial court awarding plaintiff damages against Appellant Metrailer in the sum of $12,500.00 be affirmed.

It is further ordered, adjudged and decreed that there be judgment herein in favor of plaintiff and against defendant Me-trailer ordering, directing and commanding said defendant, within 60 days of date of finality of this judgment, to formally dedicate a servitude of drain over and across the 68 foot strip owned by defendant and situated to the rear of Hogg’s property and the continuation thereof in the form of a strip 60 feet wide parallel to Metrailer’s northern boundary from Metrailer’s western boundary easterly to Bluebell Drive; remove all dirt fill above the pipe installed in this drainage area; contour the servitude area into a gentle swale from the upper end behind Hogg’s tract to the inlet of the existing pipe; and, contour the servitude area into a gentle swale from the end of the existing pipe to Bluebell Drive. Alternatively, Appellant may elect to install two lines of 36 inch reinforced concrete pipe beside the existing pipe, commencing at the end of the present pipe and extending beneath Bluebell Drive. All costs of these proceedings to be paid by Appellant Me-trailer.

Amended and rendered.

ON APPLICATION FOR REHEARING BY PLAINTIFF HERB BOXILL

PER CURIAM.

In application for rehearing, plaintiff, Herb Boxill, assigns error, inter alia, in our decree concerning the size of the two lines of reinforced concrete which we required to be laid by defendant, Metrailer. Applicant correctly notes that whereas we specified 36" pipe, we should have designated 48" pipe as recommended by J. S. Durrett, Civil Engineer.

Accordingly, our original decree is amended to require installation of 48" reinforced concrete pipe by defendant Metrailer instead of 36" pipe. We find no merit in the remaining issues raised by Applicant.

The application for rehearing is refused.


source: Caselaw Access Project

author: BLANCHE, Judge.

license: Public Domain

text:
    Inez A. FUNDERBURK et al. v. MONTGOMERY ELEVATOR COMPANY et al.
    No. 11878.
    Court of Appeal of Louisiana, First Circuit.
    March 20, 1978.
    Rehearing Denied May 1, 1978.
    Writ Granted June 9, 1978.

      Daniel R. Atkinson, Baton Rouge, of counsel for plaintiff-appellee Inez A. Fun-derburk, et al.
    Ben W. Lightfoot, Baton Rouge, of counsel for defendant-appellant Montgomery Elevator Co. et al.
    Before BLANCHE, COVINGTON and CHIASSON, JJ.
   BLANCHE, Judge.

The Montgomery Elevator Company and Employers Commercial Union Insurance Company are appealing a judgment in favor of Inez A. Funderburk and Aetna Casualty and Surety Company arising out of a tort action. Mrs. Funderburk and Aetna are answering the appeal, asking for an increase in the judgment.

On October 2, 1972, Mrs. Funderburk fell when she entered an elevator which had stopped some twelve inches below the level of the floor. She was employed by the State of Louisiana in the Department of Employment Security and the building where she worked was owned by the State. The State had a service contract for the elevators in the building with Montgomery Elevator Company. Mrs. Funderburk claimed that as a result of her fall she suffered severe injuries causing her to have a cervical disc operation and a total hip replacement.

Plaintiffs’ ingenious counsel advanced several theories upon which recovery could have been based and finally convinced the trial judge that the elevator failed to level at the floor where Mrs. Funderburk fell due to improper maintenance. The trial judge also found that Mrs. Funderburk was con-tributarily negligent but granted a new trial as to this finding, stating that since the trial he had made a point to observe numerous persons using automatic elevators and that almost without exception, they walked onto the elevators without looking and assumed that the elevators were level with the floor. The trial judge then awarded plaintiff’s workmen’s compensation carrier, Aetna, $20,034.25 and awarded Mrs. Fun-derburk $190,649.66 in general and special damages.

Defendants contend that the trial court erred in (1) finding that representatives of the elevator company were negligent and that their negligence was the proximate cause of any injury suffered by Mrs. Fun-derburk; (2) overturning its original verdict that Mrs. Funderburk was guilty of contributory negligence; (3) considering observations, conditions or situations which were not adduced in evidence at the trial of the case; and (4) setting the amount of the award to Mrs. Funderburk.

In answering the appeal, Mrs. Funder-burk has alleged that the trial court erred in (1) awarding inadequate general damages (asking an increase from $125,000 to $200,000); (2) awarding $63,775.35 in lost wages (asking that it be increased to $73,-833.51); and (3) overlooking an award for future medical expenses (asking that an award of $7,500 be made).

We believe we can dispose of all of the assignments of error of both parties by directing our attention to defendants’ first assignment which is the threshold question of whether vel non the representatives of the elevator company were negligent.

It was established at the trial that the elevator in which Mrs. Funderburk sustained her fall was under a service contract whereby Montgomery Elevator Company was to maintain it and that the elevator had stopped about twelve inches short of the floor before Mrs. Funderburk entered it. Mrs. Funderburk contends that the negligence of the elevator company personnel in maintaining the elevator caused it to fail to “level,” resulting in her fall and injuries.

In attempting to prove negligence in the manner in which the elevator was maintained, Mrs. Funderburk tried to show that Anthony Nelson James, the elevator company mechanic who serviced the elevator, was inadequately trained and supervised by his employer. However, it was shown at trial that James had qualified for his mechanic rating by successfully completing his union’s examination, had several years of experience in the elevator maintenance field and was under the office supervision of personnel in the elevator company’s Baton Rouge office.

Mrs. Funderburk further attempted to prove the negligence of the elevator company in not replacing a solenoid before it failed, but Henry J. Holuba, an expert witness called by the defendants, testified that this would not be done absent some suggestion of abnormality. There is absolutely no evidence that the defective solenoid could have been discovered by sight or smell unless at the time of inspection the coil was overheating or burning, for otherwise the back-up system would have caused the elevator to level. When the fact of the elevator’s failure to level was finally discovered by the mechanic, he replaced the solenoid, and the problem was immediately corrected.

Mrs. Funderburk also attempted to prove that the elevator company was negligent because it did not make proper periodic testing, but our review of the record convinces us that the elevator company personnel made sufficient calls to the elevator machinery room and reasonably inspected it with adequate frequency so as to exculpate the elevator company of any negligence in this area. Particularly, do we reject the suggestion that any defects causing the elevator to fail to level could have been detected by visual or olfactory testing; and there was no proof that the elevator maintenance mechanic failed to follow the weekly, semimonthly and monthly schedule of the Montgomery contractual service chart (Plaintiffs’ Exhibit No. 16).

Mrs. Funderburk attempted to prove the elevator company was negligent in failing to adequately maintain the back-up safety system, but there was nothing in the record to show that the elevator company maintenance mechanic should have had cause to perform any maintenance on the back-up system prior to the incident of October 2, 1972. Neither the expert witness of the defendants nor that of the plaintiffs seems to have any adequate explanation as to why the back-up system failed other than the broad possibilities of low voltage, dirt or a blister on the metal contact.

Mrs. Funderburk attempted to prove the negligence of the elevator company by suggesting that certain elevator parts had a predictable life expectancy which the elevator company should have known and applied in order to replace crucial parts prior to their malfunction, but this point was never successfully established, inasmuch as Mrs. Funderburk’s own expert witness testified that the controversial solenoid could fail even if it were brand new.

In conclusion, we find that whether during the course of the trial the burden shifted to the defendants requiring them to exonerate themselves from negligence as a result of the failure of the elevator to level or whether the burden was entirely on plaintiff to prove by a preponderance of the evidence that negligence was the cause of such failure, the result would be the same because there was no showing that improper maintenance caused the failure of the elevator to level.

For these reasons, the judgment of the trial court is reversed and set aside, and there is judgment in favor of defendants, dismissing the suit of plaintiffs, Inez A. Funderburk and Aetna Casualty and Surety Company, at their costs.

REVERSED AND RENDERED.

PER CURIAM.

The Court rendered a unanimous judgment in this case, and a motion for a rehearing was denied by a majority of the judges sitting in the case. The re-argument of a case before a panel of at least five judges is to be held “ . . . prior to [the] rendition of judgment.” Article 5, § 8(B) of the Louisiana Constitution of 1974. The Uniform Rules, Courts of Appeal, make no provision for re-argument before a five-judge panel when one judge dissents in denying an application for rehearing.

MOTION DENIED.


author: DOMENGEAUX, Judge.

text:
    Joseph SMITH, Plaintiff-Appellee, v. STATE of Louisiana (DEPARTMENT OF PUBLIC SAFETY), Defendant-Appellant.
    No. 6434.
    Court of Appeal of Louisiana, Third Circuit.
    April 11, 1978.

      Don R. Wilson, Knoll & Knoll by J. Edward Knoll, Marksville, for plaintiff-appel-lee.
    Michael C. Barron, Baton Rouge, for defendant-appellant.
    Before CULPEPPER, DOMENGEAUX and CUTRER, JJ.
   DOMENGEAUX, Judge.

In this civil proceeding, La.R.S. 32:1479, the “prohibition” provision of the Motor Vehicle Habitual Offender Law, is interpreted.

Plaintiff, Joseph L. Smith, was adjudicated an habitual offender, as defined by La. R.S. 32:1472, by the District Court of Avo-yelles Parish on September 8, 1977, and his driving privileges were revoked in accordance with the mandatory penalty provisions of La.R.S. 32:1477. On September 12,1977, he filed a petition in the same court seeking to have his driving privileges restored under La.R.S. 32:415.1 or, in the alternative, under La.R.S. 32:1479, alleging that the revocation of his driving privileges would have the effect of depriving him and his family of the necessities of life and would prevent him from earning a livelihood.

Trial was held on September 20,1977. It was determined at the beginning of the hearing that La.R.S. 32:415.1 was inapplicable to the controversy, and that, if plaintiff was to receive any relief, it would be under La.R.S. 32:1479. The inapplicability of La. R.S. 32:415.1 is not an issue on appeal. It was revealed at trial that plaintiff was employed offshore as a mechanic and that he was on 24-hour emergency call in addition to his regular shift. The trial court granted restricted driving privileges to plaintiff in order to allow him to go to and from his place of employment. The Department of Public Safety appealed.

The scope of this appeal is limited solely to the proper construction of La.R.S. 32:1479. We note at the outset that this appeal is properly before the court under La.R.S. 32:1478.

The Motor Vehicle Habitual Offender Law, La.R.S. 32:1471, et seq., was a legislative response to the need for public safety on the highways and roads of this state. The act is virtually self-contained. La.R.S. 32:1471 sets forth the policy underlying the law. The statute provides:

“It is hereby declared to be the policy of this state:
(1) To provide maximum safety for all persons who travel or otherwise use the public highways of this state; and
(2) To deny the privilege of operating motor vehicles on such highways to persons who by their conduct and record have demonstrated their indifference to the safety and welfare of others and their disrespect for the laws of this state, the orders of its courts, and the statutorily required acts of its administrative agencies; and
(3) To discourage repetition of criminal acts by individuals against the peace and dignity of this state and her political subdivisions and to impose increased and added deprivation of the privilege to operate motor vehicles upon habitual offenders who have been convicted repeatedly of violations of the traffic laws.”

The sections following the declaration of policy define “habitual offender,” and set forth the procedure to be followed in having a person declared as such. The Department of Public Safety certifies the conviction record of the habitual offender and forwards it to the District Attorney in the parish of the offender’s residence. The District Attorney must then file a petition in criminal district court, and a rule is ordered by the court requiring the alleged habitual offender to show cause why he should not be barred from operating a motor vehicle on the highways of the state. The only question involved during the ensuing hearing is whether the conviction record is accurate and whether the person named in the record is the same person involved in the proceedings. If the court finds that the alleged offender is the same person named in the record and that he is, in fact, an habitual offender, it is mandated to prohibit the offender from operating a motor vehicle.

The statute involved in the present controversy, La.R.S. 32:1479, deals with the conditions under which an habitual offender may have his driving privileges restored. It provides the following:

“No license to operate motor vehicles in this state shall be issued to an habitual offender, nor shall a nonresident habitual offender operate a motor vehicle in this state:
(1) Por a period of five years from the date of the order of the court finding such person to be an habitual offender; and
(2) Until such time as financial responsibility requirements are met; and
(3) Until upon petition, and for good cause shown, such court may, in its discretion, restore to such person the privilege to operate a motor vehicle in this state upon such terms and conditions as the court may prescribe, subject to other provisions of law relating to the issuance of operators’ licenses.”

The Department of Public Safety contends that the statute is clear and unambiguous. It maintains that under no circumstances may a person adjudicated an habitual offender be issued an operator’s license for a period of five years from the date of the original order declaring him as such. After the expiration of this period, a person may be restored driving privileges, if he shows that financial responsibility requirements are met and if the court denying the license determines, in its discretion, that the person should be allowed to drive.

Plaintiff, on the other hand, argues that the statute means that an habitual offender has the absolute right to qualify for driving privileges after the expiration of five years by operation of law, and that, prior to the expiration of five years, an habitual offender may petition the court for restoration of privileges for good cause shown. He thus maintains that the conjunction “and” should be judicially excised from the statute and replaced with the conjunction “or.” According to plaintiff, this judicial excision is justified because the literal statute is ambiguous. He concludes that if an offender is automatically entitled to an operator’s license after five years, paragraph 3 has absolutely no meaning because there would be no reason for such person to come into court. Finally, he maintains that his interpretation would give full meaning and effectiveness to the entire statute and accomplish the obvious legislative intent.

We feel that plaintiff has placed a strained interpretation on the statute, and we agree with the state that the statute is clear and unambiguous. It is apparent from the policy declaration that the legislature intended to “deny the privilege of operating motor vehicles ... to persons who by their conduct and record have demonstrated their indifference to the safety and welfare of others and their disrespect for the laws of this state, the orders of its courts, and the statutorily required acts of its administrative agencies . . . .” La. R.S. 32:1471(2). The District Court is given no discretion in its final judgment; if a person is an habitual offender, it must render judgment prohibiting the offender from driving. La.R.S. 32:1477. If an habitual offender violates a judgment of the court by operating a vehicle, he is punished by imprisonment of from one to five years. La.R.S. 32:1480. We think it can be inferred from the specific and express policy declaration, the mandatory judgment provision, and the stringent penalty for violations of the judgment that the legislature meant to prohibit habitual offenders from driving on public highways. In this stern statutory context, it seems incongruous that the legislature would dilute the potency of the law by allowing habitual offenders to drive, even for limited and well-intentioned purposes. Had this been the intent, the strict language dealing with mandatory judgment would be unnecessary.

In conclusion, we construe La.R.S. 32:1479 to mean that an habitual offender is prohibited from operating a motor vehicle on the highways of the state for five years from the order of the court finding him an habitual offender. After five years and upon meeting financial responsibility requirements, a person so adjudged may petition the court for the restoration of his privilege to operate a motor vehicle, and such restoration may be given, in the court’s discretion, for good cause shown, upon the terms and conditions prescribed by the court.

For the above reasons, the judgment of the District Court granting plaintiff-appel-lee, Joseph L. Smith, restricted driving privileges is hereby reversed, and it is ordered that his petition be dismissed.

All costs at trial and on appeal are assessed against plaintiff-appellee.

REVERSED AND RENDERED.


text:
    STATE of Louisiana, Plaintiff-Appellant, v. Alex WHITE, Jr., Defendant-Appellee.
    No. 6418.
    Court of Appeal of Louisiana, Third Circuit.
    April 11, 1978.
    Frances M. Gilfoil, Lafayette, for plaintiff-appellant.
    Fredric G. Hayes, Lafayette, for defendant-appellee.
    Foye L. Lowe, Jr., Baton Rouge, for Dept, of Public Safety.
    Before DOMENGEAUX, WATSON, and GUIDRY, JJ.
   DOMENGEAUX, Judge.

MOTION TO DISMISS

Alex White, Jr., defendant-appellee, moves to dismiss the appeal of the State of Louisiana, plaintiff-appellant, on the ground of mootness. No opposition has been filed.

The motion to dismiss is granted.

On July 19, 1977, the State filed suit to have the defendant declared a habitual offender as defined by La. R.S. 32:1471. The defendant timely filed an answer admitting all of the allegations of the State’s petition and requesting limited driving privileges pursuant to La. R.S. 32:1479(3).

On September 26, 1977, a judgment was signed declaring the defendant a habitual offender. It further granted defendant the limited privilege of operating a motor vehicle from his residence to his place of employment along a prescribed route, provided that he abstain from consuming alcoholic beverages both before and during driving. From this judgment the State perfected a suspensive appeal objecting to the granting of limited driving privilege to defendant.

The defendant has now filed a motion to dismiss on the ground of mootness because “ . . . Alex White, Jr. no longer desires restricted driving privileges, and on January 12, 1978, turned in his license to the Louisiana Department of Public Safety.”

A moot case is one “which seeks to get a judgment on some matter which, when rendered, cannot, for any reason, have any practical legal effect upon a then existing controversy." State v. Commitment (Jackson), 289 So.2d 565, 567 (La.App. 3rd Cir. 1974). Moot questions will not be considered on appeal. Rourke v. Coursey, 334 So.2d 480 (La.App. 3rd Cir. 1976), and cases cited therein; Boothe v. Board of Supervisors of Elections for Parish of Catahoula, 341 So.2d 1297 (La.App. 3rd Cir. 1977); Aucoin v. Evangeline Parish Police Jury, 338 So.2d 789 (La.App. 3rd Cir. 1976); Ford Motor Credit Company v. Guillory, 335 So.2d 36 (La.App. 3rd Cir. 1976); Ardoin v. Ardoin, 306 So.2d 476 (La.App. 3rd Cir. 1975).

In the present case, since the defendant has voluntarily relinquished his driving privileges, the matter has become moot.

For the reasons assigned the State’s appeal is hereby dismissed.

APPEAL DISMISSED.

      . See the case of Smith v. State of Louisiana (Department of Public Safety) 358 So.2d 996 (La.App. 3rd Cir. 1978) for a discussion of the Motor Vehicle Habitual Offender Law, and which denied the applicant restricted driving privileges. It was stated there:
      “ . . . [W]e construe La. R.S. 32:1479 to mean that an habitual offender is prohibited from operating a motor vehicle on the highways of the state for five years from the order of the court finding him an habitual offender. After five years and upon meeting financial responsibility requirements, a person so adjudged may petition the court for the restoration of his privilege to operate a motor vehicle, and such restoration may be given, in the court’s discretion, for good cause shown upon the terms and conditions prescribed by the court. ...”


author: WATSON, Judge.

text:
    Michael T. TARVER, Plaintiff-Appellee, v. Leonard E. ANDERSON, Defendant-Appellant.
    No. 6609.
    Court of Appeal of Louisiana, Third Circuit.
    May 3, 1978.

      James B. O’Neill, Zwolle, for plaintiff-appellant.
    Davis & Simmons, James Lynn Davis, Many, for plaintiff-appellee.
    Lowther & Boone, Wm. R. Boone, Many, for defendant-curator.
    Before WATSON, FORET and CUTRER, JJ.
   WATSON, Judge.

MOTION TO DISMISS

The plaintiff-appellee, Michael T. Tarver, moves to dismiss the suspensive appeal of the intervenor, Nationwide Financial Corporation. The motion is opposed.

The plaintiff filed suit on an open account resulting in the seizure of defendant’s mobile home under a writ of attachment. Asserting a superior privilege, Nationwide intervened; on January 18, 1978, the trial court signed a final judgment in favor of plaintiff, dismissing Nationwide’s intervention with prejudice. Nationwide then moved for and obtained a “suspensive and devolutive” appeal on January 26, 1978; however, the suspensive appeal bond was not filed until March 10, 1978.

When a case is taken under advisement, the delay for perfecting a suspensive appeal normally commences on the day after the clerk has mailed notice of judgment. LSA-C.C.P. articles 2123 and 1974. However, if an appellant moves for and is granted an appeal prior to service of notice, he is deemed either to have notice or to waive notice. X-L Finance Company v. Hollinger, 185 So.2d 873 (La.App. 3 Cir. 1966); In re Salmon, 318 So.2d 897 (La.App. 2 Cir. 1975). The delay for perfecting the appeal commences on the date the appellant moves for an appeal.

In the instant case, after waiving notice of judgment by moving for and obtaining an appeal, Nationwide had 30 days from January 26, 1978 within which to furnish security. Since the suspensive appeal bond was not filed until March 10, 1978 (43 days after the appeal was moved for and obtained), we are without jurisdiction to entertain the suspensive appeal. However, the devolutive appeal remains viable.

For the reasons assigned, appellant’s sus-pensive appeal is dismissed at appellant’s cost; the devolutive appeal is maintained.

SUSPENSIVE APPEAL DISMISSED.

DEVOLUTIVE APPEAL MAINTAINED.


author: CULPEPPER, Judge. DOMENGEAUX, Judge,

text:
    Lena Vallot CASTILLE, Plaintiff and Appellee, v. Albert Richard CASTILLE, Defendant and Appellant.
    No. 6447.
    Court of Appeal of Louisiana, Third Circuit.
    May 24, 1978.
    Michael Harson, Lafayette, for defendant and appellant.
    Dennis J. Vidrine, Lafayette, for plaintiff and appellee.
    Before CULPEPPER, DOMENGEAUX and WATSON, JJ.
   CULPEPPER, Judge.

The defendant husband appeals from a judgment awarding alimony pendente lite in the sum of $200 per month to the plaintiff wife. The plaintiff wife answered the appeal seeking an increase to $600 per month.

As to the constitutional issue, our Supreme Court recently considered the constitutionality of LSA-C.C. Article 148 in Williams v. Williams, 331 So.2d 438 (La.1976). In light of that decision, we find no merit to the appellant’s contention that Civil Code Article 148 deprives him of equal protection or due process of law under La. Const.1974, Article 1, Sections 2 or 3.

Appellant also contends that he is entitled to a set-off or credit for $26,000 of community funds held by the wife. He bases his claim on the decision in Nelson v. Nelson, 311 So.2d 268 (La.App. 1st Cir. 1974), amended on rehearing at 318 So.2d 68 (La.App. 1st Cir. 1975). We find the facts of that case distinguishable from the case now before us. In Nelson the wife withdrew all of the monies in each community bank account and then purchased cashier’s checks. She did this without her husband’s knowledge and deposited the money in accounts of others. She had complete control over these funds. In the present case, the record reflects that Mrs. Castille took half the money in each account held by herself and Mr. Castille. We are not sure if this was done with appellant’s consent, or even when this transfer occurred.

In a similar case, Hartley v. Hartley, 349 So.2d 1258 (La.1977), our Supreme Court questioned the results in the Nelson case. Having distinguished Nelson on its facts, the Court went on to emphasize that for compensation to take place, each claim must be equally liquidated and demandable. In Hartley, the Court found the husband had, at best, a potential claim against his wife for community funds, and that compensation or set-off was, therefore, not available to him as a defense against the wife’s claim for alimony.

We find Mr. Castille has failed to show that his wife owes him a debt equally liquidated and demandable. For that reason, no set-off is' available to him in these proceedings.

We also find no abuse of discretion in the amount of $200 per month alimony pendente lite awarded by the trial court.

For the reasons assigned, the judgment appealed is affirmed. Costs of this appeal are assessed against defendant-appellant.

AFFIRMED.

DOMENGEAUX, Judge,

dissenting in part.

I disagree with the portion of the majority opinion which affirms the amount of the alimony pendente lite awarded to the wife by the trial court. I feel that the amount should be reduced.

The amount awarded is approximately one-half of the husband’s income. The parties were married for some 18 years. They were both married before. They are childless. The husband took early retirement and his only income is a retirement check in the amount of $423.00 per month, plus a little over $1.00 per month which he receives from his father’s succession. The parties lived together for over one year after the husband took his retirement.

I fully recognize our limitations on review of amounts awarded in this type of case, and the much discretion which is accorded a trial judge in setting an amount. However, it appears to me that there is manifest error here. The wife is in a substantially better financial condition than the husband. When they became separated, the amount of cash owned by the community was divided. It appears that this division was accomplished by agreement. The divided funds are in their respective names and under their respective control. The husband has approximately $21,000.00 in Certificates of Deposit, plus some $8,000.00, some of which is in a checking account and the remainder in a Safety Deposit Box. The wife has approximately the same amount. Both of them have the greater part of the cash which they divided in interest bearing certificates. Additionally, the wife owns a home in which she is now living rent free, and also owns another piece of property which is not further described in the record. These immovables are her separate property. The husband owns nothing other than the cash.

A realistic appraisal of the respective maintenance needs of both parties show that they are about equal, except for one item: the husband must pay $100.00 for rent and the wife lives rent free in her own home. Considering all facets of this case, I feel that the alimony pendente lite should be reduced by $50.00 to compensate for the husband’s rent.

I express no opinion concerning the legality and consequences of the voluntary division of the community funds by the parties, but the fact remains, obviously with the husband’s condonance, that the wife has for her own use the substantial amount of cash referred to herein, which under usual circumstances would not be in her possession and control.

It appears to me that the wife is benefited in alimony pendente lite to a greater extent than anticipated by C.C. Art. 148. I would reduce that award to $150.00 per month.


author: JOE N. PIGOTT, Commissioner

text:
    Mack BROWN v. STATE of Mississippi.
    No. 50368.
    Supreme Court of Mississippi.
    May 17, 1978.
    Houghton F. Elias, Jr., Cleveland, for appellant.
    A. F. Summer, Atty. Gen., by Robert D. Findley, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before PATTERSON, C. J., WALKER and COFER, JJ., and PIGOTT, Commissioner.
   JOE N. PIGOTT, Commissioner

for the Court:

This is an appeal from the retrial of Brown v. State, 340 So.2d 718 (Miss.1976). The defendant was convicted in the Circuit Court of Bolivar County, Mississippi of the January 7, 1975 armed robbery of the Cleveland State Bank in Merigold, and sentenced to twenty-two (22) years in the custody of the Mississippi Department of Corrections and he appeals from that judgment. We affirm.

Appellant assigns the following as errors in the trial below:

1. The trial court erred in overruling appellant’s objection to testimony in evidence resulting from the search of the appellant’s mother’s house.
2. The trial court erred in permitting continued references to appellant’s co-indictee, Granville Wright.

Mr. Harry Speakes, manager of the Meri-gold Branch of the Cleveland State Bank, testified that two black males robbed the bank on January 7, 1975, and identified Mack Brown, whom he had previously known, as one of the robbers. Speakes described a long coat that he said was worn by the defendant Brown during the robbery and such a coat was obtained from the home of Brown’s mother, with whom he resided.

WAS THE SEARCH OF THE HOUSE OF DEFENDANT’S MOTHER LAWFUL AND THE COAT FOUND THEREIN ADMISSIBLE IN EVIDENCE?

Deputy Sheriff Tom Hazzard testified that Emma Washington, mother of the defendant, voluntarily gave permission to search her residence. In searching the kitchen and laundry room, a long coat was found in a dirty clothes hamper. The coat was introduced in evidence and the defendant objected only as to the chain of custody of the coat since it had been obtained by Deputy Hazzard. The State’s witnesses testified that the coat had been stored in the safe in the sheriff’s office since possession had been obtained. The coat was admitted in evidence.

Consent to search voluntarily given without coercion may be given by a third party who possessed common authority, mutual use and joint control over property not in the exclusive control or possession of the defendant and where the defendant had no reasonable expectation of privacy. Haralson v. State, 318 So.2d 891 (Miss.1975); U. S. v. Matlock, 415 U.S. 164, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974).

This case is distinguished from the case of May v. State, 199 So.2d 635 (Miss.1967) where the 15-year old son merely acquiesced to the law enforcement officers in unlocking the front door to permit officers to enter and search the home for evidence to be used against the father charged in the death of the mother.

The consent must be shown to be voluntary and not coerced, by explicit or implicit means, and not a mere acquiescence to the claim of lawful authority. Bumpers v. North Carolina, 391 U.S. 543, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968).

In the case of Stein v. U. S., 166 F.2d 851 (9th Cir.1948), cert. den. 344 U.S. 844, 68 S.Ct. 1512, 92 L.Ed. 1768 (1948), a man and woman lived together in a house purchased with money provided by the man, but with title in their joint names. They separated, the man locked the woman out of the house and he retained possession. The woman, with federal agents, broke a window and entered; she consented to a search and the evidence discovered was admissible against the man.

In Cain v. State, 337 So.2d 935 (Miss.1976), the defendant’s girl friend consented to a search of her apartment. The money found in a pocket of the defendant’s suit coat hanging in her closet was admissible.

A brother’s consent to search the back yard of the family residence for a pistol and clothing was sufficient authority as there was mutual use of the property by persons generally having joint access or control for most purposes. Loper v. State, 330 So.2d 265 (Miss.1976).

In this case the mother of the defendant voluntarily gave permission and consent for the search of her residence and the coat was found in a dirty clothes hamper in the kitchen-laundry room, not in the exclusive personal domain of the defendant. The identification of the defendant as one of the robbers was positively made by an eyewitness independent of the admission of the coat in evidence.

We, therefore, hold that the search of defendant’s mother’s house was lawful and the coat found therein admissible.

DID THE TRIAL COURT ERR IN PERMITTING REFERENCE TO BE MADE TO THE DEFENDANT’S CO-INDICT-EE, GRANVILLE WRIGHT?

This is not a circumstantial evidence case wherein the state tried to prove guilt by association, as may have been in Pryor v. State, 239 So.2d 911 (Miss.1970) and Matula v. State, 220 So.2d 833 (1969). Here, there was testimony of Willie Davis that on the Sunday before the robbery the defendant borrowed from Willie Davis the pistol used by Granville Wright in the robbery. There was testimony of the eyewitness Harry Speakes positively identifying the defendant as the man who put the money inside his long coat while Granville Wright held the pistol on Mr. Speakes. No mention was made in this record as to the disposition of the charge as to the co-indictee Wright and the only references to the co-indictee Wright were necessary and proper in the separate trial of this defendant. We, therefore, hold that the trial court did not err in permitting references to be made to the co-indictee Wright.

This case should be and is hereby affirmed.

AFFIRMED.

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

      . Sitting pursuant to Chapter 430, Laws of 1976. The above opinion is adopted as the opinion of the Court.


text:
    Lonnie WALLEY v. Earl BOSZOR and Mrs. Nola Rich Boszor.
    No. 50315.
    Supreme Court of Mississippi.
    May 24, 1978.
    Dudley W. Conner, Hattiesburg, for appellant.
    Gray, Montague, Jackson & Pittman, James C. Pittman, Jr., Hattiesburg, for ap-pellees.
    Before PATTERSON, C. J., and WALKER and COFER, JJ.
   AFFIRMED.

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


text:
    Fisher SMITH et al. v. Charlie SMITH et al.
    No. 50330.
    Supreme Court of Mississippi.
    May 24, 1978.
    Mitchell, Rogers, Eskridge, Yoge & Clayton, Dennis W. Voge, Tupelo, for appellants.
    S. H. Long, Tupelo, for appellees.
    Before ROBERTSON, P. J., and LEE and BOWLING, JJ.
   AFFIRMED.


text:
    Glenda H. ROBERTS, etc. v. CENTRAL DELTA WAREHOUSING CORP. et al.
    No. 50338.
    Supreme Court of Mississippi.
    May 24, 1978.
    McTeer, Walls, Bailey & Buck, Charles Victor McTeer, Greenville, for appellant.
    Levingston, Jacks, Levingston & Land, Alfred A. Levingston, Cleveland, for appel-lees.
    Before SMITH, P. J., and SUGG and BROOM, JJ.
   AFFIRMED.


text:
    Jessie B. BOYETT v. ALLIED STEEL BUILDERS and Zurich Insurance Company.
    No. 50341.
    Supreme Court of Mississippi.
    May 24, 1978.
    Dixon L. Pyles, Jackson, for appellant.
    Daniel, Coker, Horton, Bell & Dukes, B. Stevens Hazard, Jackson, for appellees.
    Before SMITH, P. J., and SUGG and BROOM, JJ.
   AFFIRMED.


text:
    Patricia Dianne ROBBINS v. Harvey Russell DEARMAN, Jr.
    No. 50698.
    Supreme Court of Mississippi.
    May 24, 1978.
    Covington & Roberts, Larry E. Roberts, Meridian, for appellant.
    Joe Clay Hamilton, Meridian, for appel-lee.
    Before PATTERSON, C. J., and WALKER and COFER, JJ.
   AFFIRMED.


text:
    GRENADA MUNICIPAL SEPARATE SCHOOL DISTRICT et al. v. Laura Ann SALLY.
    No. 50350.
    Supreme Court of Mississippi.
    May 24, 1978.
    Brunini, Grantham, Grower & Hewes, Holmes S. Adams, Jackson, for appellants.
    McTeer, Walls, Bailey & Buck, Charles Victor McTeer, Greenville, for appellee.
    Before SMITH, P. J., and SUGG and BROOM, JJ.
   AFFIRMED AND REMANDED FOR HEARING.

COFER, J., took no part.


text:
    Roy B. PRICE, Jr. v. ILLINOIS CENTRAL GULF RAILROAD COMPANY.
    No. 50361.
    Supreme Court of Mississippi.
    May 24, 1978.
    Donald W. Williamson, Meridian, Craw-ley & Ford, Michael H. Steele, Kosciusko, for appellant.
    Deen, Cameron, Prichard & Young, Winston Cameron, Meridian, for appellee.
    Before SMITH, P. J., and SUGG and BROOM, JJ.
   AFFIRMED.


author: PATTERSON, Chief Justice,

text:
    Randy HOFFMAN, a minor, by and through his father, Earl Hoffman, next friend, Plaintiff-Appellant, v. PLANTERS GIN COMPANY, INC., Defendant-Appellee.
    No. 50175.
    Supreme Court of Mississippi.
    May 24, 1978.

      Yancy & Easley, Cliff R. Easley, Jr., James W. Pennington, Bruce, for plaintiff-appellant.
    Campbell & DeLong, Fred C. DeLong, Jr., Lawrence D. Wade, Greenville, for defendant-appellee.
    Before PATTERSON, BROOM and BOWLING, JJ.
   PATTERSON, Chief Justice,

for the Court:

This is an appeal from the Circuit Court of Sunflower County which granted the defendant, Planters Gin Company, Inc., a peremptory instruction against plaintiff, Randy Hoffman, in a tort suit.

A review of the facts most favorable to the plaintiff reveals that at the time of the accident he was fourteen years of age. The previous year he had dropped out of grade school and accompanied his father, Earl Hoffman, about his work. The father was employed by Fratesi Farms as a truck driver, and Randy, who was not employed, on occasion aided his father in this work. For two or three weeks prior to the accident in which he was injured Randy had helped his father in transporting cottonseed from the appellee’s gin in Indianola, Mississippi, to an oil mill.

On January 21,1976, the son accompanied his father to the gin where he assisted in packing the seed on the truck. Later Randy entered the seed house in the center of which was a tunnel-like passage containing an auger in a recessed concrete floor. The auger moved the seed from the house for loading. It was covered with removable floor plates or covers, but when the pressure of seed became too great, they would push the covers up and spill onto the narrow (eighteen inches each side of the auger) floor of the tunnel. Randy, his father, and Nate, one of the gin’s employees, entered the tunnel to shovel seed back into the auger as the flow had slowed. While in the tunnel, Mr. R. L. (Sonny) White, the gin manager, knelt beside the tunnel, admonishing them to be careful and not get into the auger. Nate and Mr. Hoffman left the tunnel, but Randy remained and continued sweeping seed. When Nate shouted that his father wanted him, Randy turned, slipped on some seed, and his right foot fell into the revolving auger. As a consequence the leg was amputated below the knee, and at the time of trial Randy was being fitted with an artificial leg. The injury resulted in a suit by Randy by and through his father Earl Hoffman, next friend, against Planters Gin Company, Inc.

The record discloses there were no warning signs on the building or doors of the tunnel and the entrance to it was never locked. Larry Cook, a gin manager in Sumner, Mississippi, testified that the generally accepted safety practices of the industry in the Mississippi Delta area were posting of warning signs, prevention of unauthorized personnel around such machinery, and covers on augers accessible to anyone.

Randy testified that on the day of the accident as well as on other occasions, six or seven of the auger covers were off and six or seven were on. He stated he was in the tunnel perhaps two or three times a day and that no one, including employees or their superiors, ever warned him to stay out of the tunnel or, as far as he knew, advised his father to keep him out of the tunnel. He conceded he was admonished, however, to be careful and knew the auger was dangerous. Additionally, Randy testified that he had replaced some of the gin employees in their work upon their requests while they took a break to smoke or otherwise refresh themselves.

The elder Hoffman testified that no one ever told him that he or his son should stay out of the tunnel and that to his knowledge no one ever personally told Randy to stay out. He stated that other employees had seen Randy going about the seed house on several occasions and that there were no warning signs about the tunnel and that seven or eight of the auger covers were usually left off of it.

George Robinson, a truck driver who also hauled cottonseed from the gin during January 1976, testified that drivers could enter the tunnel and place seed into the auger to expedite loading. He had done so, and no one had ever ordered him to stay out of the tunnel. He also observed there were no warning signs, the door to the tunnel was not locked, and, at times, there were no covers on the auger.

The manager, White, testified the main business of the gin was production of certified seed for planting. The purpose of the tunnel was to relieve moisture and heat from the seed, to protect the auger, and to keep people away from the machinery. To prevent the seed from being crushed in the trough it was necessary to unpin one end of the covers over the auger to allow seed to spill out when the trough became too full. However, at the time of the accident cull or low germination seed were being transported to an oil mill so that special care to prevent their being crushed in the trough was unnecessary.

Fred Harrington, delinting manager for the gin, testified that he had observed Randy and his father in the tunnel and the seed house on several occasions and had warned both to stay out of the tunnel.

The only issue presented is whether the trial court erred in granting a peremptory instruction for appellee. We are of the opinion the evidence presented an issue for determination by a jury.

The established rule in passing upon the propriety of granting a peremptory instruction is that the Court must look solely to the testimony in behalf of the party against whom the peremptory instruction was requested and consider that testimony as true along with all permissible inferences to be drawn therefrom. Paymaster Oil Mill Co. v. Mitchell, 319 So.2d 652 (Miss.1975); Gates v. Murphree, 286 So.2d 291 (Miss.1973); Dazet v. Bass, 254 So.2d 183 (Miss.1971). If such evidence could support a verdict for him, the peremptory instruction should not have been given. Gates, supra.

In order to ascertain the liability of ap-pellee, if any, it is necessary to consider the following:

(1) The status of the minor, that is, whether he was an invitee, a licensee or a trespasser;

(2) The duty of the gin to the minor; and

(3) Whether there was a breach of that duty.

As to status, an invitee is a person who goes upon the premises of another in answer to the express or implied invitation of the owner or occupant for their mutual advantage. Langford v. Mercurio, 183 So.2d 150 (Miss.1966); Wright v. Caffey, 239 Miss. 470, 123 So.2d 841 (1960). A licensee is one who enters upon the property of another for his own convenience, pleasure or benefit pursuant to the license or implied permission of the owner whereas a trespasser is one who enters upon another’s premises without license, invitation or other right. Kelley v. Sportsmen’s Speedway, Inc., 224 Miss. 632, 80 So.2d 785 (1955).

Ordinarily, a child who accompanies a parent or other adult customer onto business premises to conduct business is an invitee. Gulf Refining Co. v. Moody, 172 Miss. 377, 160 So. 559 (1935); and see 44 A.L.R.2d, Child-Invitee or Licensee, § 5, p. 1329 (1955). And, although the injured party may have entered the premises as an invitee, he may lose this status and acquire that of a licensee, if not a trespasser, if he exceeds the scope or purpose of the invitation by proceeding into an area not included in the invitation. Braswell v. Economy Supply Co., 281 So.2d 669 (Miss.1973); Kelley v. Sportsmen’s Speedway, Inc., 224 Miss. 632, 80 So.2d 785 (1955).

We are of the opinion the testimony and reasonable inferences therefrom favorable to the plaintiff were sufficient to present a jury issue. Unquestionably, Randy and his father were either licensees or invitees lawfully upon the gin premises to further the father’s business. According to the testimony, their presence as well as Randy’s accessibility to the tunnel, was known to the defendant and neither was directed to stay out of it. It also appears that other drivers were given the same access to the area.

Additionally, there were no warning signs prohibiting entrance and Randy had been seen in the seed house and tunnel. Indeed, he had assumed the places of some of the gin employees whose work required them to be in the seed house and tunnel, while they took a recess from their duties to smoke or otherwise refresh themselves. Moreover, from the evidence, Randy’s presence in the tunnel immediately adjacent to the revolving auger was known to the defendant through its manager who called into the tunnel admonishing Nate, Randy and his father to be careful and not to get into the auger. While it is true these facts were largely denied by the defendant’s testimony, it nevertheless created a conflict for resolution by a jury.

The pertinent question is whether Randy’s status at the time of injury brings him within the standard of ordinary and reasonable care or whether a lesser standard, as held by the trial court was appropriate. The defendant’s motion for a peremptory instruction was sustained upon the premise that Randy was a licensee so the defendant owed him as a matter of law no duty except not to willfully or wantonly injure him. In our opinion this was error.

The legal distinctions between a licensee and invitee have little significance once the presence of a person upon the possessor’s premises is known and there are affirmative actions involving him. Status relates largely to negligence for the condition of premises, that is, passive negligence and not to active or affirmative negligence emanating from action or inaction by the possessor with knowledge of an individual’s presence. In Astleford v. Milner Enterprises, Inc., 233 So.2d 524 (Miss.1970), we discussed active and passive negligence, stating:

. These courts hold that where the negligence is passive the licensee is not permitted to recover in the absence of proof of wilfulness or wantonness but where the negligence is active, that is, actual operation on the premises, then a licensee is permitted to recover if the possessor of the premises is guilty of simple negligence or fails to use ordinary, reasonable care. We have not as yet made this differentiation and do not think that we should do so in this case. It is the thinking of this writer, but not necessarily that of the Court, that this area of law merits further study in the light of present day conditions and it may well be that this Court will in the future abandon the traditional distinctions between trespassers, licensees and invitees, or at least draw a distinction between active and passive negligence insofar as a licensee is concerned.

(233 So.2d at 525-526)

As quoted, this Court did not attempt to distinguish active from passive negligence though acknowledging its existence. It is noteworthy, we think, that in Astleford the injured party was a licensee whose presence on the premises was unknown to the defendant. In King v. Dudley, 286 So.2d 814 (Miss.1973), a case involving injury and death from falling pulpwood which had been hoisted into the air with the assistance of the injured party, we stated:

The case before the Court involves more than a condition and inaction on the part of defendants. In leaving the machine unattended with the wood hoisted in the air, defendants acted affirmatively in creating the situation resulting in Lee’s death. Lee had been warned of the danger and no doubt he was negligent in placing himself where the wood could fall on him. We are of the opinion that it cannot be said as a matter of law that Lee’s negligence was the sole proximate cause of his death. If the jury should find defendants were also negligent, then their negligence would be a contributing proximate cause of the death of Lee, and the latter’s negligence would constitute contributory negligence.

(286 So.2d at 816-817)

We note the Court did not place the standard of care upon the status of the deceased at the time of injury, that is, whether he was a business invitee or had exceeded that status by engaging in work by attaching a cable, thereby becoming a licensee, but rather based its opinion upon the affirmative action of the defendant as creating a jury issue to be determined by the doctrine of reasonable care.

It is accurate, as contended, that if Randy were an invitee, the gin owner was under a duty to have the premises in a reasonably safe condition for use in a manner consistent with the invitation or at least a duty not to lead plaintiff into a dangerous trap or expose him to unreasonable risk. Braswell v. Economy Supply Co., 281 So.2d 669 (Miss.1973); Strand Enterprises v. Turner, 223 Miss. 588, 78 So.2d 769 (1955). Or if Randy were a licensee, the owner owed only the duty to refrain from willfully or wantonly injuring him. Astleford v. Milner Enterprises, Inc., 233 So.2d 524 (Miss.1970); Marlon Investment Co. v. Conner, 246 Miss. 343, 149 So.2d 312 (1963); Dry v. Ford, 238 Miss. 98, 117 So.2d 456 (1960). And, it is said in such a situation something more is required to impose liability than mere inadvertence or lack of attention; there must be a more or less extreme departure from ordinary standards of care, and conduct must differ in quality, as well as in degree, from ordinary negligence involving a conscious disregard of a known serious danger. Coleman v. Associated Pipeline Contractors, Inc., 444 F.2d 737 (5th Cir.1971); Astleford, supra; Dry, supra.

However, these general statements, as profound as they may be, do not fit the present factual circumstance and therefore do not control it. We are of the opinion the testimony presented a conflict of facts for resolution by a jury to be measured by the standard of ordinary and reasonable care rather than the standard of intentional or wanton negligence as held by the trial court. We think the premises owner is liable for injury proximately caused by his affirmative or active negligence in the operation or control of a business which subjects either licensee or invitee to unusual danger, or increases the hazard to him, when his presence is known and that the standard of ordinary and reasonable care has application.

We are persuaded to this view by Astleford and King, supra, as well as 2 Harper & James, The Law of Torts, section 27.10, pages 1475-1476 (1956), as follows:

There are a good many dicta — mostly in older cases — and some holdings to the effect that the occupier of land owes the bare licensee no greater duty than to refrain from intentional, or willful or wanton, misconduct towards him. “The prevailing view is to the contrary, however, and it is now generally held that in cases involving injury resulting from active conduct, as distinguished from conditions of the premises, the landowner or possessor may be liable for failure to exercise ordinary care towards a licensee whose presence on the land is known or should reasonably be known to the owner or possessor.”

And, in 2 Restatement of the Law of Torts, Second, section 341 (1965), it is stated:

A possessor of land is subject to liability to his licensees for physical harm caused to them by his failure to carry on his activities with reasonable care for their safety if, but only if,
(a) he should expect that they will not discover or realize the danger, and
(b) they do not know or have reason to know of the possessor’s activities and of the risk involved.

As comment to the above it is stated the possessor of premises need do no more than exercise reasonable care to warn a licensee of his intention to do an act which he should realize is likely to cause harm to the licensee if he comes into or remains within the area in danger by it. The possessor is entitled to expect that such warning will cause the licensee to avoid the danger unless the possessor realizes, or should realize, that the warning would be ineffective, either because the danger is so imminent that the licensee would have no opportunity to avoid it or because the licensee does not hear the warning or is not able or does not intend to take advantage of it.

From our analysis we think the facts of this case proper for jury resolution, particularly whether a fourteen-year-old boy with little education could understand and appreciate the danger of his position even though warned to be careful. Indeed, such warning, if found to be true, could have been interpreted by him as an invitation to remain adjacent to the exposed auger as long as care was used.

The statement of Prosser, Law of Torts (4th Ed. 1971), page 379, expresses our view when it states:

. It is now generally held that as to any active operations which the occupier carries on, there is an obligation to exercise reasonable care for the protection of a licensee. .

We are of the opinion the trial court erred in granting a peremptory instruction for the defendant based upon intentional or wanton negligence.

REVERSED AND REMANDED.

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


text:
    Elmo Joseph MATRANGA v. FIRST MISSISSIPPI NATIONAL BANK, Executor of the Estate of Martha H. Matranga, Deceased.
    No. 49929.
    Supreme Court of Mississippi.
    May 24, 1978.
    Ross R. Barnett, Jr., Abe A. Rotwein, Jackson, for appellant.
    McLaurin, Nicols & Kelly, John C. McLaurin, Jr., Alfred G. Nicols, Jr., Brandon, for appellee.
    Before SMITH, P. J., and ROBERTSON and LEE, JJ., and JAMES E. BOST, Commissioner.
   REVERSED AND RENDERED.

PATTERSON, C. J., and SUGG, WALKER, BROOM, BOWLING and COFER, JJ., concurring.


author: EMBRY, Justice. SHORES, Justice MADDOX, Justice

text:
    O’Neil PIPKIN v. SOUTHERN ELECTRICAL AND PIPEFITTING COMPANY, INC., a corporation, et al.
    77-164.
    Supreme Court of Alabama.
    May 5, 1978.
    James A. Yance, of Cunningham, Bounds, Byrd, Yance & Crowder, Mobile, for appellant.
    James J. Duffy, Jr., John N. Leach, Jr. and William C. Barclift, III, Mobile, for appellee, James Green.
    William J. Donald, of Zeanah, Donald & Hust, Tuscaloosa, for amici curiae, Robert N. Stickney, James B. Rogers, Howard Tucker and Charles McPherson.
    William T. Mills, II, of Dunn, Porterfield, Scholl & Clark, Birmingham, James B. Kierce, Jr., of Stone, Patton & Kierce, Bessemer, amicus curiae.
    Fournier J. Gale, III, Birmingham, for amicus curiae, Associated Industries of Alabama.
   EMBRY, Justice.

Appeal by O’Neil Pipkin from summary judgment in favor of defendant James Green. We reverse and remand.

Pipkin filed suit against Green seeking damages for injuries sustained by him in the line and scope of his employment at International Paper Company in Mobile, Alabama. Several parties were named as defendants in the complaint, including Green who, at the time, was an employee and Safety Director for International Paper Company. The complaint charged Green with negligently failing to discover alleged defects in the equipment involved in Pip-kin’s accident and negligently failing to correct the alleged defects. Green, thereafter, filed a motion for summary judgment in his favor. The trial court granted summary judgment in Green’s favor, stating:

“ * * * the Court finds that James Green was a co-employee of the Plaintiff as contemplated by the 1973 and 1975 Amendments to Tit. 26, § 312 of the Alabama Code and that under the provisions of said Code section, the Defendant, James Green, is immune from suit by the Plaintiff; * * *”

The dispositive question on this appeal is the constitutionality of the 1973 amendments to § 312, Tit. 26 (Alabama Workmen’s Compensation Law), Code 1940 [Act No. 1062, § 26, p. 1771, Acts of Alabama, 1973] immunizing a co-employee from suit by an injured employee.

The part of the 1973 amendments to § 312, Tit. 26, here pertinent reads:

“Section 26. Section 312, Title 26, Code of Alabama 1940, as last amended, is hereby amended to read as follows:
“Section 312. Liability of party other than employer and procedure governing. —Where the injury or death for which compensation is payable under article 2 of this chapter was caused under circumstances also creating a legal liability for damages on the part of any party other than the employer whether or not such party be subject to the provisions of article 2 of this chapter the employee, or his dependents in case of his death, may proceed against the employer to recover compensation under article 2 of this chapter, or may agree with the employer upon the compensation payable under article 2 of this chapter, and at the same time may bring an action against such other party to recover damages for such injury or death, and the amount of such damages shall be ascertained and determined without regard to article 2 of this chapter; provided, however, neither an officer, director, agent, servant or employee of the same employer or his personal representative, shall be considered a party other than the employer against whom such an action may be brought. * * * ” (emphasis added)

On the authority of our decision in the consolidated cases of Grantham v. Denke (SC-2542); Coxson v. Denke (SC-2543) and Brannon v. Faulkner (SC-2544) [released simultaneously with this opinion] 359 So.2d 785, we hold the legislature’s grant of immunity to a co-employee from suit by an injured employee, by the 1973 amendments to § 312, Tit. 26, unconstitutional; and accordingly reverse and remand the judgment of the trial court granting summary judgment in favor of Green.

Before concluding, we feel compelled to address Green’s subtle contention that if the legislature had the power to repeal the election option under the Compensation Act and make the Act compulsory through the 1973 amendments, the legislature, likewise, had the power to immunize a co-employee from suit by an injured employee. Green submits the Act remained optional until it was amended in 1973, citing the following language from the title to the Act effecting the 1973 amendments to support his contention: “ * * * providing compulsory coverage of subject employers and employees * * We disagree.

Initially, we must make clear that the 1973 amendments, as written, only repealed those sections of the Code pertaining to the election procedures governing whether or not the employer and employee would be bound by the provisions of the Act (§§ 274, 275, 276, Tit. 26, Code 1940). The repeal of these procedures in no way affected the elective option between employer and employee existing under the Act as heretofore defined. The constitutional validity of the Act rests upon the same being elective rather than compulsory. Woodward Iron Co. v. Bradford, 206 Ala. 447, 90 So. 803 (1921); Chapman v. Railway Fuel Co., 212 Ala. 106, 101 So. 879 (1924); Gentry v. Swann Chemical Co., 234 Ala. 313, 174 So. 530 (1937).

Finally, we cannot perceive the above quoted language from the 1973 amendment as being indicative of a legislative intent to make the Act compulsory. We müst assume the legislature had a constitutionally valid purpose in mind when it enacted the 1973 amendments. This assumption is evidenced by the use of the prefatory word “subject” before the words employers and employees. That is indicative of reference to a prior election by employer and employee to be bound by the provisions of the Act. This view reconciles the 1973 amendments with the constitutional mandate that the Act be elective in nature; were it otherwise, the entire act would fall.

REVERSED AND REMANDED.

BLOODWORTH, FAULKNER, ALMON and BEATTY, JJ., concur.

JONES and SHORES, JJ., concur in result.

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

SHORES, Justice

(concurring in the result).

Because of the position stated in my dissenting opinion in Childers v. Couey, 348 So.2d 1349 (Ala.1977), I concur in the result only.

JONES, J., concurs.

MADDOX, Justice

(dissenting).

Because of the position stated in my dissenting opinion in Gratham v. Denke, et al., S.C. 2542, 2543 and 2544[MS], 359 So.2d 785 (Ala.1978), I respectfully dissent.

TORBERT, C. J., concurs.