author: LEMMON, Judge. REDMANN, Judge,

text:
    Gail M. BAPTISTE v. Daniel WASHINGTON and New Orleans Public Service, Inc. (Consolidated with No. 9053, Diana SHIELDS v. NEW ORLEANS PUBLIC SERVICE, INC. Consolidated with No. 9054, Annie BROWN Individually and on behalf of the Estate of her minor child, Amerales Brown v. NEW ORLEANS PUBLIC SERVICE, INC. Consolidated with No. 9055, Julia GREEN v. NEW ORLEANS PUBLIC SERVICE, INC. and Daniel Washington).
    No. 9052.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 24, 1978.
    Writ Refused July 3, 1978.

      Silvers & Tanet, Michael Silvers, New Orleans, for plaintiff-appellee.
    Floyd F. Greene, New Orleans, for def endant-appellant.
    Before REDMANN, LEMMON and GU-LOTTA, JJ.
   LEMMON, Judge.

In these four consolidated suits plaintiffs, who were standing passengers on a crowded city bus, sued both the public carrier and the driver of a pickup truck, whose near collision with the bus at an intersection controlled by a traffic light caused the bus driver to brake suddenly and jostle the standing passengers.

The case against the carrier proceeded on two theories: (1) the passengers were injured by the sudden stop, in which the bus driver either ran the red light or should have seen the truck doing so in time to avoid the accident without an emergency stop, or (2) the passengers were injured when Diana Shields, a package laden passenger, was thrown backwards just after she boarded the bus at the intersection because the bus driver did not allow her sufficient time to find a seat or to place her packages down and hold onto a railing.

After trial on the merits the trial judge found that the bus had the green light and the bus driver had acted reasonably in applying his brakes to avoid an imminent collision. However, he further found that the bus driver’s earlier negligence was the cause of the injuries, stating:

“Nevertheless, the bus driver was negligent in starting from the bus stop before a passenger, whose arms were full of packages, had a chance to find a seat or put her packages down so she could hold onto a railing. Her fall precipitated a domino effect in which the other claimants were injured. All should recover.”

The record provides support for the trial judge’s findings, and we affirm.

I

Inasmuch as all other plaintiffs claimed their falls were precipitated by Mrs. Shields’ fall, the initial inquiry is whether Mrs. Shields’ fall was caused by the starting or by the stopping of the bus, both of which occurred very close together.

The bus, traveling south on Dryades Street, a divided thoroughfare, stopped at the bus stop at the córner of the intersection with Melpomene Street, also a divided thoroughfare which had two travel lanes and one parking lane on each side of a narrow neutral ground. The bus driver testified: After he discharged passengers, he waited at the curb until the light turned green and then pulled directly into the intersection. About the time he reached the neutral ground area, he observed that a truck approaching from his right was not going to stop for the red light, and he slammed on his brakes and swerved to the left, successfully avoiding a collision. After the incident several people complained of injuries, but he had not seen any passengers fall on the bus.

Although he stated that when a passenger loaded with packages boards the bus so that “if they look to me like they might have a problem I’ll hold tight for a while”, he did not recall whether or not any passengers had boarded the bus at that intersection. Therefore, the bus driver’s testimony was of little value in determining the cause of the falls by Mrs. Shields and the other plaintiffs.

Mrs. Shields testified she boarded the bus with both hands so full (two big boxes of clothes, another bag of clothes and a purse) that the bus driver had to take the transfer out of her hand. She stated “just as I went to move that’s when the bus went to move and I practically ran, you know, scooted to the back to catch hold of something”, and “I fell. I must have started everybody to falling because I believe I was the first one to fall”. She fell into another passenger and struck her back on the first seat past the “love seat”.

Although she answered affirmatively an inquiry on cross-examination as to whether the sudden stop was the cause of her fall, her testimony that she fell toward the back of the bus was consistent with the balance of her testimony that she fell when the bus moved forward suddenly just after the driver took her transfer.

This conclusion is substantially supported by the testimony of the two other injured passengers. Gail Baptiste, who was standing on the door side between the front and rear doors, noticed Mrs. Shields at the bus stop waiting for the bus and then saw her get on with both arms full of packages. She testified “she had just gotten on the bus, the bus took off and she swerved down the aisle which meant that everybody else who was standing had a chain reaction and fell on the floor”, adding “(i)t was so quick, looked like he didn’t really give her a chance to get on good”. Although Miss Baptiste admitted she would have fallen from the suddenness of the stop “irregardless of whether someone had fallen on me or not”, she was not sure that she first fell forward and then backward, concluding “all I know is that I fell”.

Amérales Brown, who was standing on the door side behind the “love seat”, testified Mrs. Shields boarded the bus loaded with packages in both hands and the bus “moved on right quick” while Mrs. Shields “was trying to get to a place where she could hold on at”. She further stated “everybody fell back and made me fall”.

Thus, while the plaintiffs themselves were uncertain as to whether the starting or the stopping of the bus caused the fall by Mrs. Shields and the “domino effect” fall of the others, their overall testimony, taken with the fact Mrs. Shields fell toward the back of the bus into the other plaintiffs who were further to the back of the bus, compels the conclusion that the starting was the principal cause of the falls.

II

While a carrier owes the highest degree of care to its passengers, a bus driver is generally not negligent for starting the bus with a normal motion before the passenger is seated. Sharp v. New Orleans City R. R. Co., 111 La. 395, 35 So. 614 (1903). However, different circumstances provoke different duties, and there is a greater duty when a passenger’s appearance is such that a reasonable bus driver should know that there is danger in starting the bus before the passenger has an opportunity to seat himself or otherwise to become safely situated. Boarding by a passenger with a physical handicap, for example, calls for the exercise of greater precaution. 14 Am.Jur.2d Carriers § 982 (1964); 93 A.L.R.2d 237, § 4(b) (1964). The standard, as in all negligence cases, is one of reasonableness.

Consequently, when a passenger boarding a public carrier is so encumbered with luggage or packages that he will obviously have difficulty in maintaining or regaining balance, the driver should allow the passenger a reasonable time to achieve a situation of safety before starting the bus in motion. Saitta v. New Orleans Ry. & Light Co., 12 Orl.App. 278 (1915); Miller v. New Orleans Pub. Serv., Inc., 196 So. 86 (La.App.Orl.1940). Of course, negligence must be determined in each case according to the particular facts and circumstances.

In the present case the bus driver should have been aware from Mrs. Shields’ appearance that it was not safe to start the crowded bus until she had an opportunity to put her packages down and hold on to a railing or otherwise balance herself. The trial judge’s conclusion that the driver did not allow Mrs. Shields such an opportunity is not manifestly erroneous.

There is no dispute as to the amount of the awards.

The judgment is affirmed.

AFFIRMED.

REDMANN, J., dissents and assigns reasons.

REDMANN, Judge,

dissenting.

Plaintiffs’ brief states — and my reading of the record permits no other conclusion— that the fall occurred not when the bus started as the light turned green, but when the bus driver suddenly applied his brakes: “plaintiff, Diana Shields, boarded the bus heavily burdened with packages; and it was she who fell when the bus made the emergency stop, and thus precipitated the ‘domino effect’ referred to by the trial judge.”

A head-on collision does not hurl a car’s occupants rearwards into its back window. And the emergency stopping of a forward-moving omnibus could not, and therefore in this case did not, cause its passengers to fall rearwards. Yet that is, of necessity, the story told by plaintiffs in these consolidated cases other than Shields. Their story (essential to defendant’s liability) is that they were knocked down from their standing positions by package-laden Shields, who had just got on the overcrowded bus at the very intersection in which the driver had to jam on his brakes to avoid collision with a truck which was running a red light. Shields fell when the brakes were applied, the theory is, because she had not had time to put down packages and find a handhold.

The trial judge reasoned:

I find that the bus driver proceeded on a green light, and that the bus driver was reasonable in applying his brakes to avoid what he believed was an imminent collision with a truck which almost ran a red light.
Nevertheless, the bus driver was negligent in starting from the bus stop before a passenger, whose arms were full of packages, had a chance to find a seat or put her packages down so she could hold on to a railing. Her fall precipitated a domino effect in which the other claimants were injured.

. The “domino effect” could only have occurred from braking if Shields were to the rear of the bus, behind the other passengers. But, in the brief interval from Shield’s getting on the bus until the brake application, during which there was not enough time for Shields to put down her packages, there was also not enough time for Shields to have worked her way with her unmanageable load of packages through the overcrowded standing passengers (including the other three plaintiffs) to a place behind them, from which Shields’s forward momentum could have knocked them down when the brakes were applied. (For Shields to have got to the rear of the bus, she would have had to get on the bus at a previous stop, in which case there would have been no showing of fault on defendant’s part.)

Recovery by Shields alone (if she had still been at the front of the bus and fell forward against it) would be consistent with the trial court’s reasoning that defendant owed her the duty to wait until she put down her packages and secured herself, because it could be said that defendant’s breach of that duty caused her fall when the brakes were applied. However, no such duty is owed merely because a passenger has both hands occupied; Carter v. New Orleans Pub. Serv. Inc., La.1975, 305 So.2d 481. Plaintiffs argue to the contrary from obiter dicta in Miller v. New Orleans Pub. Serv. Inc., 196 So. 86, La.App.Orl.1940, and from three other Court of Appeal cases which refer to Miller’s dicta. In each of those four cases the passenger lost and therefore none decided the point at issue contrary to the Supreme Court’s Carter. Carter controls.

      . The fourth plaintiff died prior to tidal from a cause unrelated to the bus accident.

      . The trial judge’s unwillingness to render a judgment against the truck driver indicates an implicit finding that the emergency stop necessitated by the truck driver’s failure to obey the red light was not a cause of the accident.

      . We distinguish on its facts the case of Carter v. New Orleans Pub. Serv., Inc., 305 So.2d 481 (La.1974), which involved a similar occurrence. However, the Supreme Court, in affirming the intermediate court’s reversal of the trial court, specifically found as a fact that the passenger’s fall was caused by the sudden stop while she was on her way to a seat, the court apparently concluding that the passenger, who was carrying a bag of groceries, an umbrella and a purse was not so heavily laden with packages as to require exercise of greater precaution and would have reached her seat safely except for the emergency stop.


source: Caselaw Access Project

author: STOULIG, Judge.

license: Public Domain

text:
    Succession of Mildred Margaret MILLER.
    No. 9481.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 25, 1978.
    Racivitch & Wegmann, William J. Weg-mann, New Orleans, for Mrs. Albertha Screen Meyer, appellant.
    Derbes & Derbes, Jorda S. Derbes, New Orleans, for Mrs. Helen Miller Regan, ap-pellee.
   ON COURT’S OWN MOTION TO DISMISS

Before GULOTTA, STOULIG and GAR-SAUD, JJ.

STOULIG, Judge.

We dismiss this appeal as premature.

On November 5, 1976 appellant Albertha Meyer filed an ex parte petition to probate the will of Mildred Margaret Miller. The trial court refused to sign the order of probate noting on the bottom of the pleading:

“The court declines to order the probate of the attached will for the reason that it is not either an olographic or a statutory will.
[Signed] Sanford Levy
Judge
11/9/76”

Mrs. Meyer neither appealed from this denial nor did she apply to this Court for supervisory writs. Some time later Mrs. Helen Regan was appointed administratrix of the intestate Miller succession.

On January 18, 1978, appellant filed a contradictory rule against the administra-trix directing her to show cause why the document which Judge Levy refused to probate in 1976 should not be probated. The district court made this notation on the pleading:

“January 27, 1978
Motion & Rule to Probate Will denied for reasons set forth on November 9, 1976.
[Signed] Sanford Levy
Judge”

There are no formal judgments in the record of either ruling. Both refusals to admit to probate, if reduced to formal judgments, would be final judgments because they establish permanent rights. Succession of Lissa, 194 La. 328, 193 So. 663 (1940). More specifically, a judgment ordering a will to probate is a final judgment, Seghers v. Antheman, 1 Mart. N.S. 73 (1823); therefore, it logically follows that the refusal to probate a will is likewise a final judgment.

Had a formal judgment been signed incorporating the decree in the first handwritten notation, appellant could not relitigate the same issue via a different procedure. However, C.C.P. art. 1911 and the jurisprudence interpreting it require that a final judgment be signed.

The entry by the district judge does not constitute a final judgment, and until one is signed and forms a part of the record any appeal therefrom is premature. See Bartlett v. Collector of Revenue, 276 So.2d 748 (La.App. 3d Cir. 1973).

This appeal is dismissed at appellant’s cost.

APPEAL DISMISSED.

      . C.C.P. art. 2974 provides in part: “Appeals from orders or judgments rendered in succession proceedings shall be governed by the rules applicable to appeals in ordinary proceedings * * *."


author: DOMENGEAUX, Judge.

text:
    Lydia F. KNEPPER, Plaintiff-Appellant, v. STATE of Louisiana, Through DEPARTMENT OF HEALTH AND HUMAN RESOURCES ADMINISTRATION, et al. Defendants, Dr. Frank H. Marek and Hartford Accident and Indemnity Company, Defendants-Appellees.
    No. 6473.
    Court of Appeal of Louisiana, Third Circuit.
    June 8, 1978.

      Russell T. Tritico, Lake Charles, for plaintiff-appellant.
    Jones, Patin, Harper, Tete & Nolen, William M. Nolen, Lake Charles, Frank P. Trosclair, Jr., Baton Rouge, Cox, Cox & Knapp by James J. Cox, Lake Charles, Camp, Carmouche, Palmer, Carwile & Barsh, J. A. Delafield, Lake Charles, for defendants-appellees.
    Before CULPEPPER, DOMENGEAUX, and WATSON, JJ.
   DOMENGEAUX, Judge.

This is a medical malpractice case, filed in the captioned District Court, in which plaintiff seeks monetary relief. Her petition alleges that, while she was a patient at Lake Charles Charity Hospital, she suffered damages because of negligent performance of certain diagnostic procedures and surgery. She sued the State of Louisiana, through the Department of Health and Human Resources Administration, as the operator of the hospital; Dr. Frank H. Marek, as the head of the radiology department of the hospital; Dr. Maurice D. Levy, as the physician who performed the subsequent surgery; and the insurer of these physicians, Hartford Accident and Indemnity Company.

Under the provisions of Louisiana’s Medical Malpractice Act, La.R.S. 40:1299.41, et seq., specifically Section 1299.47(B), defendants, Dr. Frank H. Marek and Hartford Accident and Indemnity Company, filed a dilatory exception of prematurity, premised on the fact that plaintiff did not first present her claim to a medical review panel before filing her suit in the District Court. Based on stipulations and admissions, the trial court sustained the exception and dismissed plaintiff’s suit as to Doctor Marek and Hartford, as his insurer only.

Plaintiff has appealed, contending that Section 1299.47 of the Act is unconstitutional.

For the reasons set out in the case of Everett v. Goldman, et al., 359 So.2d 1256 (La.1978), we affirm the action of the District Court.

The Supreme Court in the Everett case upheld as constitutional, two sections of the Louisiana Medical Malpractice Act, one of which was La.R.S. 40:1299.47.

The Everett decision discusses at length the history and purposes of the aforementioned Medical Malpractice Act, and the constitutional challenges concerning Sections 1299.47 and 1299.41(E).

Inasmuch as plaintiff did not follow the procedure set out in La.R.S. 40:1299.47, and according to the pronouncement by our Supreme Court in the Everett case, supra, we therefore affirm the decision of the trial court, sustaining the exception of prematurity and dismissing plaintiff’s suit as to Dr. Frank H. Marek and Hartford Accident and Indemnity Company, as his insurer only.

Costs are assessed against plaintiff-appellant.

AFFIRMED.

      . We note that the Court in Everett aiso declared constitutional Section 1299.41(E), relative to the prohibition of including a specific dollar amount in the demand for malpractice claims. We are not concerned with this section in the instant case.


author: FORET, Judge.

text:
    Roy J. VINCENT, Jr., et al., Plaintiffs-Appellants, v. Dr. Vernon VOORHIES et al., Defendants-Appellees.
    No. 6484.
    Court of Appeal of Louisiana, Third Circuit.
    June 8, 1978.
    J. Minos Simon, Lafayette, for plaintiffs-appellants.
    Voorhies & Labbé, Marc W. Judice, Lafayette, Michael G. Barron, Baton Rouge, Herbert J. Mang, Jr., New Orleans, for defendants-appellees.
    Before GUIDRY, FORET and CUTRER, JJ.
   FORET, Judge.

The constitutionality of certain sections of the Louisiana Medical Malpractice Act, LSA R.S. 40:1299.41, et seq. (Act 817 of 1975), is at issue in this appeal.

Plaintiff filed this tort suit based on alleged medical malpractice of several defendants. Plaintiff alleged that his injuries occurred in December, 1975, thereby bringing the new medical malpractice act into focus. Plaintiff also prayed in his petition that the provisions of the medical malpractice act be declared unconstitutional. The defendant doctor filed exceptions styled exceptions to venue and jurisdiction, claiming that the proper venue and forum were set forth in the medical malpractice act and that plaintiff had not complied with the act’s directives.

The trial judge, in written reasons for judgment, sustained the defendant doctor’s exceptions, stating that regardless of what the exception was styled, defendant was a health care provider covered by the act. Therefore, plaintiff must go first before the medical review panel. Consequently, plaintiff’s suit was premature, and accordingly was dismissed without prejudice. Plaintiff appeals from the trial court judgment sustaining defendant doctor’s exception.

The issues on appeal are the following: (1) Did the defendant file the correct exception which would have called into issue appellant’s petition for damages and declaratory relief; and (2) the constitutionality of the medical malpractice act as found in LSA-R.S. 40:1299.41, et seq.

Appellant first complains that the defendant filed the incorrect exception. It does appear that the correct exception in this case should have been the dilatory exception of prematurity. This is based on the fact that the statute in question states that a plaintiff must take his claim before the medical review panel before proceeding to court. However, the trial judge stated that it made no difference whether the exception is correctly styled or not because the defendant, if the act is valid, is entitled to the remedy under the statute. It is felt that the trial judge is correct in this decision. There is no question as to the timeliness of the exception before the court. Therefore, under LSA-C.C.P. Article 924 and Wooten v. Central Mutual Insurance Company, 202 So.2d 690 (La.App. 3 Cir. 1967), the defendant has satisfied LSA-C.C.P. Article 924 and adequately appraised the plaintiff of the grounds for his exception.

The second issue is that of the constitutionality of the medical malpractice act, or certain portions thereof. The trial court apparently felt that the constitutionality of the whole statute was at issue. We do not agree. The exception filed by the defendant presents solely the issue of the constitutionality of the medical review panel portion of the act, and more particularly, that portion thereof which requires a claimant to submit his claim to the medical review panel as a condition precedent to his filing suit in the courts of this State.

Courts have traditionally considered the constitutionality of a legislative act only when it is clearly drawn into issue, and the ends of justice so require. Aucoin v. Dunn, 255 La. 823, 233 So.2d 530 (1970). In the very recent Louisiana Supreme Court case of Everett v. Goldman, 359 So.2d 1257 (La.1978), Supreme Court No. 60,959, handed down May 22, 1978, the Court ruled on the constitutionality of only two of four constitutional issues raised, finding it unnecessary, in that case, to rule on the constitutionality of all four such issues raised. We are faced with the same situation. We need look no further than the constitutionality of the medical review panel provision in order to dispose of this case. Everett v. Goldman, supra, specifically decided that the medical review panel provision (LSA-R.S. 40:1299.47) of the Louisiana Medical Malpractice Act is constitutional. The Supreme Court also upheld the constitutionality of R.S. 40:1299.41(E), the ad damnum clause proscription. However, the latter issue has not been raised in the case sub judice, and we need not consider same.

We affirm the judgment of the trial court which dismissed plaintiff’s suit without prejudice.

Costs of this appeal are assessed against the plaintiff.

AFFIRMED.


author: GULOTTA, Judge.

text:
    Kenneth R. COMPTON v. Ivy Marie BERTAUT.
    No. 8948.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 13, 1978.
    Rehearing Denied June 30, 1978.
    Joseph S. Russo, Jefferson, for plaintiff-appellant.
    Reed, Reed & D’Antonio, Floyd J. Reed, Metairie, for defendant-appellee.
    Before LEMMON, GULOTTA and BOU-TALL, JJ.
   GULOTTA, Judge.

We are confronted with an appeal by a divorced husband from two separate judgments. In one judgment, dated July 6, 1977, the trial judge maintained a support award in the amount of $400.00 for two children, although he relieved the husband from paying support for a third child who had died. In that July 6 judgment he also awarded the wife $3,424.50 (one half of the expenses of the last illness and funeral of the deceased child) and $300.00 (attorney’s fees incurred by the wife in enforcing previous support judgments). In the second judgment, dated October 6, 1977, the court terminated support for a child who had reached majority but further set the support for the remaining child at $361.57 per month.

The husband complains, in both appeals, the trial judge abused his discretion when he failed to allow substantial support reductions and awarded medical and funeral expenses and attorney’s fees to the wife.

JULY 6 JUDGMENT

In an effort to show a change in circumstances, Kenneth Compton, the husband, testified he had been unemployed for over a month prior to trial and was burdened with truck and car payments. Compton stated that he had separated from his present wife and was living and taking meals at his parents’ home. He claimed that he borrowed money from his relatives and his present wife and her son to meet support payments. Plaintiff further indicated that he had been unable to find work as a trucker and had been laid off a construction job where he had received two checks in the amounts of $133.39 and $140.32.

Compton’s 1976 income tax return does not support his claim of dire financial circumstances. Although the return showed a net income of $182.00, his gross receipts from his business totalled $48,350.00. Depreciation amounted to $15,000.00, road expenses amounted to $9,377.00 and repair costs approximated $4,000.00. His cash flow at that time was obviously greater than indicated in his testimony. The wife had remarried and was receiving a gross annual income from her job of $11,200.00, together with $100.00 per month rental income. Her present husband, Charles Pfis-ter, was receiving a gross annual income in the sum of $17,000.00.

The wife offered evidence to show a $437.00-per-month increase in expenses for the two surviving children.

Too well settled to require citation is the rule that child support awards are discretionary and the amount set by the trial judge will not be disturbed on appeal absent a showing of an abuse of that discretion. Notwithstanding the death of one of the three children, the trial judge concluded that maintaining a support award at $400.00 per month was required for the support of the two children, ages 17 and 14. The evidence considered, we find no abuse of his discretion.

We likewise find no error in the court’s award of medical and burial expenses in the sum of $3,424.50. The wife testified that the expenses of the last illness after deducting insurance proceeds totalled $4,978.00 and that the net burial expense after insurance credits amounted to $1,873.00. Taken together, these expenses total $6,851.00. The husband testified that he had not contributed any money to cover these expenses.

In Wingo v. Cook, 306 So.2d 370 (La.App. 3d Cir. 1975), the court ordered a father to pay one half the extraordinary medical expenses incurred for the treatment of his child in addition to support payments. In the instant case, the trial court’s award corresponding to one half the expenses of the deceased child’s last illness and funeral was proper.

We do find, however, the trial judge erred when he awarded attorney’s fees incurred by the wife in enforcing previous judgments of support. It is true that LSA R.S. 9:305, as amended by Act 462 of 1977, now provides that when the court renders an executory judgment incorporating the payment of child support or alimony in arrears, the court may award reasonable attorney’s fees in favor of the prevailing party; however, this statute was not in effect when the July 6, 1977 judgment was rendered. At the time the judgment was rendered, the prevailing jurisprudence did not allow attorney’s fees to the wife for enforcement of support judgments. See Wainwright v. Wainwright, 217 La. 563, 46 So.2d 902 (1950); Stoltz v. Stoltz, 162 So.2d 103 (La.App. 4th Cir. 1964), writ refused, 246 La. 349, 164 So.2d 352 (1964); Stanfield v. Stanfield, 342 So.2d 1195 (La.App. 2d Cir. 1977). Accordingly, that part of the July 6 judgment awarding the wife the sum of $300.00 attorney’s fees is reversed and set aside.

OCTOBER 5 JUDGMENT

The husband was receiving approximately $1,385.00 per month net pay from his construction job. His total monthly expenses amounted to $997.00. Though one of the two surviving children had reached majority on September 22, 1977, the wife introduced a list of expenses to meet the needs of the remaining 14-year-old girl in the amount of $723.13. She had received a $l,500.00-a-year pay raise, giving her an income of $13,308.00 per year. Her present husband’s income was $15,959.91 per year.

In oral reasons for judgment, the trial court stated the total monthly expense as listed by the wife was reasonable and the husband’s present income was such that he was able to pay one half this amount or $361.57.

The husband contends the expenses listed by the wife are inflated. According to the wife, the total expenses for the most part represent one fourth of the family-of-four’s expenses. (The child lives with her older sister, her mother and the mother’s present husband.) Though we find merit to the divorced husband’s argument to the extent that the expenses listed appear to be inflated, we cannot say they are so inflated as to require a reduction in the amount awarded by the trial judge.

Furthermore, a proportionate reduction in support does not necessarily follow merely because a child has attained the age of majority. In Wallace v. Wallace, 316 So.2d 496, 498 (La.App. 2d Cir. 1975), the court stated:

“ * * * Where the father has been ordered to make a periodic lump sum payment for the support of all his minor children, the fact that one or more attains majority does not necessarily mean the father’s obligation should be reduced ratably. It cannot be presumed that the initial amount was necessarily fixed on the basis of an equal amount for each child. Before a reduction is granted there should be a new determination of the needs of the remaining minor children as well as the father’s ability to pay. * * * JJ

See also Lawrence v. Lawrence, 167 So.2d 414 (La.App. 4th Cir. 1964).

Although one of the two children has attained majority, we cannot say under the circumstances the minimal reduction granted to the husband is an abuse of discretion.

DECREE

Accordingly, that part of the July 6 judgment in favor of Ivy Marie Bertaut and against Kenneth R. Compton in the amount of $300.00, together with interest from date of judicial demand, is annulled and set aside. In all other respects, the judgments are affirmed. As amended, affirmed.

AMENDED AND AFFIRMED.

      . Act 462 of 1977 became effective on September 9, 1977.

      . Check stubs from 7/31/77 through 9/25/77 showed a total net income for 9 weeks of $2,876.52. Compton’s weekly earnings averaged, for this period, $319.61. His monthly earnings during August and September, 1977, approximated $1,385.00.


author: BOUTALL, Judge. LEMMON, Judge GULOTTA, Judge,

text:
    George P. BARNES, Jr. v. Sandra ROSEN.
    No. 9199.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 13, 1978.
    Rehearing Denied June 30, 1978.

      A. D. Freeman of Satterlee, Mestayer & Freeman, New Orleans, counsel for George P. Barnes, Jr., plaintiff-appellant.
    Frank J. D’Amico, New Orleans, counsel for Sandra Rosen, defendant-appellee.
    Before LEMMON, GULOTTA and BOU-TALL, JJ.
   BOUTALL, Judge.

A father having custody of two minor children sues his former wife to furnish child support. Judgment was rendered dismissing his suit and he appeals.

George P. Barnes, Jr. and Sandra Reed were married and divorced. Barnes obtained custody of two of the minor children, a boy 17% years old and a boy 15 years old. Sandra Reed married Charles Rosen, II, and plaintiff seeks to have her contribute towards the child support, contending that the income and financial condition of Mr. Rosen be considered in the totality of circumstances on which child support is fixed. See Marcus v. Burnett, 282 So.2d 122 (La.1973).

Unquestionably, the obligation to support one’s children is imposed upon mothers by the very words of Louisiana Civil Code Article 227 which states:

“Art. 227. Fathers and mothers, by the very act of marrying, contract together the obligation of supporting, maintaining, and educating their children.”

In considering the amount of support necessary, the evidence reflects that the father’s claims are somewhat inflated, and there is an erroneous allotment of certain portions of living quarters and automobile expenses to the children. However, the main issue in this case is that the children are attending a private school with rather expensive tuition. Education of a minor is one of the elements of child support. L.C.C. Article 230. The real issue here arises under the provisions of L.C.C. Article 231, that alimony shall be granted in proportion to the wants of the person requiring it, and the circumstances of those who are to pay it.

The trial judge found that the income of the mother was minimal, not totaling a few hundred dollars over the past year. She had worked as a free-lance model and clothing exhibitor and she testified that this field of endeavor had suffered greatly because of economic circumstances in the field, and she could only obtain a job now and then. It is obvious that from her earnings alone, no child support could be paid. However, her remarriage to Mr. Rosen brings into issue the question of whether his income, in excess of $70,000 per year, can be considered in awarding child support to the Barnes’ children.

The rule is that the income of the second husband may be considered in the totality of circumstances necessitating child support. Marcus v. Burnett, supra; LeBouef v. LeBouef, 325 So.2d 290 (La.App. 4th Cir. 1975); Parent v. Parent, 327 So.2d 576 (La.App. 1st Cir. 1976). However in this case, Mrs. Rosen married Mr. Rosen under a marital contract in which the community property system of Louisiana was renounced and the property and income of the parties declared to belong to each separately. There is no showing that this contract was made fraudulently or was designed solely for the purpose of depriving the Barnes’ children of support. As a matter of fact, the record shows that during the less than one year existence of the marriage, that contributions in excess of $2,000 were made voluntarily to the support of the children and that they frequently stayed at the Rosen household. The trial court found that under these circumstances, he could not go beyond the marriage contract, and could not consider Mr. Rosen’s income as forming part of the means of the mother, on which he could levy the obligation of support. We agree with his findings.

The judgment is affirmed.

AFFIRMED.

GULOTTA, J., concurred in result and filed opinion.

LEMMON, J., dissented and filed opinion.

LEMMON, Judge

dissenting.

The trial court should have ordered the mother to contribute some amount of support.

Both the father and the mother have the obligation to support their children according to their circumstances. C.C. art. 227, 231. And like the father, the mother who is capable of gainful employment and whose health and family status permit her to work, cannot defeat her support obligation by declining to work. See Zaccaria v. Beoubay, 213 La. 782, 35 So.2d 659 (La.1948).

In the present case the mother’s support obligation may properly have been suspended or reduced during the term of illness or of recuperation following surgery, but the obligation exists nonetheless and should have been recognized.

Furthermore, the trial court erred in refusing to consider the income of the mother’s present husband in considering the totality of the pertinent circumstances surrounding the mother’s support obligation.

Normally, the income of a second husband is to be considered in determining the mother’s support obligation. Marcus v. Burnett, 282 So.2d 122 (La.1973). The fact that the mother and the second husband had a pre-nuptial agreement should not affect this general rule.

Whether or not there is a community of acquets and gains, the husband owes his wife the duty of support. C.C. art. 119. No pre-nuptial agreement can defeat this obligation. And the fact that the wife is entitled to and is receiving support is patently a pertinent consideration bearing on the determination of the wife’s circumstances surrounding her support obligation toward her children.

GULOTTA, Judge,

concurring.

I concur.

Our Code places the duty of support of minor children on the father and mother. LSA-C.C. art. 227. Absent an infirmity or valid reason to be unemployed, a parent cannot avoid the responsibility of support merely because he or she is not gainfully employed. See Gravel v. Gravel, 331 So.2d 580 (La.App. 3d Cir. 1976); Ducote v. Ducote, 331 So.2d 133 (La.App. 3d Cir. 1976), affirmed, 339 So.2d 835 (La.1976).

The mother in this case had worked as a model. She enjoys the benefit of a maid-cook and apparently her household duties are minimal. Nevertheless, her uncontra-dicted testimony is that she is in poor health and will “have to have surgery in a few weeks”. I consider this undisputed statement of the wife’s health a sufficient impediment to her gainful employment. Presumably, future assessment of her health could determine whether or not valid reason continues to exist for unemployment. Accordingly, I concur with the result.

      . The record reveals that the mother’s present husband voluntarily contributes considerable amounts to her four children, two of whom were majors at time of trial and the third just under the age of majority. Nevertheless, a support obligation, upon being judicially demanded, must be fixed by the court if entitlement is proved, even if support contributions are being voluntarily made directly to the children.


author: PER CURIAM.

text:
    Mary Ellen Sheehan PEREZ v. Chalin O. PEREZ.
    No. 9677.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 14, 1978.
    Writ Refused July 3, 1978.
    Edmond H. Fitzmaurice, Jr., for relator.
    Tucker, Schonekas & Garrison, Gibson Tucker, Jr., New Orleans, for respondent.
    Before REDMANN, LEMMON and BOUTALL, JJ.
   PER CURIAM.

This is an application for supervisory writs, involving the question of venue and jurisdiction in a rule for child custody brought by the mother in Orleans Parish after a divorce judgment silent as to custody was rendered in Plaquemines Parish, where the father presently resides. At the time the rule was filed the child was living with the mother in Orleans Parish.

The father filed exceptions to the venue and to the jurisdiction of the Orleans court. After the trial court overruled the exceptions, the father applied to this court for supervisory writs.

The Louisiana courts have jurisdiction over the status in an action to obtain the custody of a minor domiciled in the state. C.C.P. art. 10(5). The related question of venue involves the determination of the proper parish in which the action may be brought.

There is no specific provision in the Code of Civil Procedure governing venue in custody actions. Such an action incidental to an action for separation or divorce is generally brought in the parish of proper venue for the principal action. However, when the initial fixing of custody occurs after divorce, the venue of the action to obtain custody is determined by reference to the law governing tutorship proceedings, since custody of the minor is one of the elements of tutorship. C.C.P. art. 4261. Venue in tutorship proceedings lies in the parish where the minor resides. C.C.P. art. 4031.

The judgment correctly overruled the exceptions, and the application is denied.

APPLICATION DENIED.


author: BROOM, Justice,

text:
    Katherine Louise MORRIS v. Billy E. MORRIS.
    No. 50424.
    Supreme Court of Mississippi.
    June 14, 1978.
    Glenn Barlow, Pascagoula, for appellant.
    Fielding L. Wright, Jr., Pascagoula, for appellee.
    Before SUGG, BROOM and COFER, JJ.
   BROOM, Justice,

for the Court:

Child custody and child support are the chief aspects of this case tried in the Chancery Court of Jackson County, Mississippi. Appealed from is the lower court’s decree denying a change in custody of the parties’ minor children, but ordering the mother to pay child support.

Divorce of the parties was decreed May 15, 1975. The decree granted custody of their two children to the father, Billy E. Morris, appellee (Mr. Morris herein) and no appeal was taken. On March 23, 1976, the mother, Katherine Louise Morris, appellant (Mrs. Morris herein), filed her petition seeking modification of the prior decree (that custody be granted unto her) based upon alleged material change of facts and circumstances pertaining to the children, Katrina Louise Morris, age three, and Eugene Lynn Morris, age nineteen months. The petition for change of custody alleged that Mr. Morris was not giving the children proper environment and care. After hearing the proof, the lower court (not the same judge who entered the original decree) noted that the children had not been cared for “perhaps as they should have been,” but found that no material changes had occurred since the original decree sufficient to justify its modification. According to the court’s opinion, “Mrs. Morris has lived in the home with a man who she describes as a father relationship” which did not favorably impress the court. Accordingly, a decree was entered leaving paramount child custody with Mr. Morris but requiring that Mrs. Morris pay $10 per week as child support. Additionally, should she remove the children from this jurisdiction, she was required to post a bond in the sum of $1,000 to insure return of the children to the jurisdiction of the court.

Mrs. Morris first argues that the court committed reversible error by its failure to modify the original decree for child custody. She contends that the proof was overwhelming and required a change of child custody in the best interest of the children. We find no merit in this proposition because it cannot logically be said on this record that the chancellor was manifestly in error. He was faced with a situation where neither parent was entirely satisfactory, but we cannot say that he committed reversible error in leaving custody with the father.

Second argument made by Mrs. Morris is that the court erred in summarily requiring her to pay child support on its own motion and with this argument we must agree. Mr. Morris made no request or pleading that Mrs. Morris be required to pay child support. There was no notice or suggestion in the record that support payments from Mrs. Morris were even being contemplated by the court on its own or asked for by Mr. Morris. Of course, courts have the authority to make proper orders touching upon child custody and child support and may increase or make an allowance for child support “if such increase is based upon proper pleadings in a proceeding for that purpose . . Wansley v. Schmidt, 186 So.2d 462, 465 (Miss.1966). Fondren v. Batton, 348 So.2d 431 (Miss.1977), held that due process entitled one situated as appellant in this case to have fair notice that some aspect of child support payments from her was under consideration. Fortenberry v. Fortenberry, 338 So.2d 806 (Miss.1976), held that child support payments may be ordered “after a full and complete hearing, after due notice of the purpose of the hearing . . ..” (338 So.2d at 807). To the same effect is our holding in Rhodes v. Rhodes, 336 So.2d 1315 (Miss.1976). Here it was error for the court to order Mrs. Morris to máke child support payments absent any notice that she would be required to defend such a proposition and absent any notice that the court was considering ordering her to pay child support. Therefore, the part of the decree of the lower court requiring child support payments from Mrs. Morris will be deleted.

The final proposition argued by Mrs. Morris is her contention that the court erred in requiring her to post a $1,000 bond when she takes the children beyond the State of Mississippi. We find no error in this aspect because the court has the power to insure that children under such circumstances are not removed and kept beyond the jurisdiction.

As to the order that Mrs. Morris pay child support, the cause is reversed without prejudice with respect thereto, but in all other respects affirmance is ordered here.

AFFIRMED IN PART AND REVERSED IN PART.

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


text:
    Janet BROWN, Terri S. Stanley and Valeria Layton Poss v. LODGE APARTMENTS et al.
    No. 50423.
    Supreme Court of Mississippi.
    June 21, 1978.
    John C. Underwood, Jr., Edward L. Cates, Jackson, for appellants.
    M. Charles May, John T. Jacks, Jackson, for appellees.
    Before ROBERTSON, P. J., SUGG and BROOM, JJ., and FLOYD J. LOGAN, Commissioner.
   AFFIRMED.


author: EMBRY, Justice.

text:
    ALABAMA GREAT SOUTHERN RAILROAD COMPANY v. SUMTER PLYWOOD CORPORATION.
    SC 2770.
    Supreme Court of Alabama.
    April 21, 1978.
    Rehearing Denied June 23, 1978.
    Sam M. Phelps and J. Russell Gibson, III, of Phelps, Owens & Jenkins, Tuscaloosa, for appellant.
    Ira D. Pruitt, Jr., Livingston, for appel-lee.
   EMBRY, Justice.

On this appeal we decide whether a contract which relieves a party from the consequences of its own negligence is enforceable. Judgment in favor of Sumter Plywood Corporation, plaintiff below, and against Alabama Great Southern Railroad Company, defendant below, in the amount of $21,798.31 was entered upon stipulated facts. We affirm.

The facts, as stipulated and submitted to the trial court by the parties, are:

“1. That attached hereto and marked ‘Exhibit A’ is a true and correct copy of an agreement entered into by and between the Alabama Great Southern Railroad Company, as party of the first part, and the Industrial Development Board of the Town of Livingston, as party of the second part, on, to-wit, 25 January 1972.
“2. That attached hereto and marked ‘Exhibit B’ is a true and correct copy of an agreement entered into by the defendant, Alabama Great Southern Railroad Company as ‘Railroad’; Industrial Development Board of the Town of Livingston as ‘Industry’; and plaintiff, Sumter Plywood Corporation as ‘Shipper’, dated on, to-wit, 26 January 1972. That Exhibit A constitutes the agreement referred to in the first paragraph of Exhibit B, being the agreement and instrument thereafter referred to as ‘Agreement’ in Exhibit B.
“3. That defendant, Alabama Great Southern Railroad Company, required the Industrial Development Board of the Town of Livingston to execute Exhibit A and the Industrial Development Board of the Town of Livingston and Sumter Plywood Corporation to execute Exhibit B as a condition to the agreement of the Alabama Great Southern Railroad to afford the terminal services and facilities referred to in said agreement and to furnish such terminal services and facilities elsewhere than at the regular station of Railroad. The spur on which this incident occurred was an extension of a lead line in the South Industrial Park of Livingston, Alabama. The lead line was owned by the Defendant and the spur by Sumter Plywood Corporation.
“4. That the suit in this case claims damages based on the alleged negligent or wanton damage by Railroad of the overhead chip-bin loader referred to in paragraph 2 of Exhibit A and that the property for which Plaintiff seeks to recover damages is one of the ‘facilities’ referred to in said agreement and the accident involved arose out of the use of such facility.
“5. That the agreements attached hereto and marked ‘Exhibit A’ and ‘Exhibit B’ were in full force and effect on, to-wit, 1 September 1975, the date of the accident made the basis of the suit filed herein and such accident is subject to the terms of said agreement insofar as said agreement may be deemed to be valid and enforceable.
“6. That there is no evidence of any wanton act or misconduct on the part of the defendant or its agents, servants, or employees.
“7. That the accident in question occurred on 1 September, 1975, which was a Labor Day holiday and plaintiff’s mill was not in operation and none of plaintiff’s employees were present at the time of said accident. The accident occurred when defendant’s employees connected a train to a partially filled railroad car located under the aforesaid overhead chip-bin loader and moved said car without observing that said car was attached to a cable and winch used to move said car into position under the chip-bin loader. The moving of such car caused the cable to remove the legs supporting the chip-bin loader which overturned causing the damage claimed.”

An additional stipulation reads:

“1. The plaintiff and defendant hereby agree, admit and stipulate to all of the matters and facts contained in the stipulation heretofore made in this case for the purpose of a Motion for Summary Judgment filed by the defendant, Alabama Great Southern Railroad Company, said stipulation being dated 22 October 1976, said stipulation to have the same force and effect as the other matters stipulated hereinafter and fully and to the same extent as if the same were set forth herein at length.
“2. That the damages sustained by the plaintiff as a result of the accident made the subject of this suit was the sum of Twenty One Thousand, Seven Hundred Ninety Eight and 31/100 ($21,-798.31) Dollars.
“3. That the defendant, Alabama Great Southern Railroad Company, was guilty of simple negligence which proximately caused the accident made the subject of this suit and the damages stipulated to above.
“4. The plaintiff, Sumter Plywood Corporation, and the defendant, Alabama Great Southern Railroad Company, hereby submit this case for final judgment upon the stipulations made herein together with the stipulations referred to above dated 22 October 1976, together with the briefs heretofore filed by said parties.”

Exhibits “A” and “B” referred to in the stipulation read:

EXHIBIT “A”

“THIS AGREEMENT, made between

“THE ALABAMA GREAT SOUTHERN RAILROAD COMPANY, an Alabama corporation, its successors and assigns, hereinafter styled Railroad, party of the first part; and,

“INDUSTRIAL DEVELOPMENT BOARD OF THE TOWN OF LIVINGSTON, Alabama, hereinafter styled Industry, party of the second part;

“WITNESSETH:

“THAT the PARTIES HERETO agree as follows:

“1. Railroad will operate, to afford Industry facilities for the receipt and shipment of carload freights of Industry over the lines of Railroad in accordance with lawfully published tariffs, three (3) industrial tracks, known and designated as Tracks 1, 2 and 3 (hereinafter together sometimes styled tracks) at LIVINGSTON, Alabama, the locations of said tracks being substantially as shown in red and green on print of Drawing No. F-148, dated June 3, 1971, annexed hereto and made a part hereof.

“2. Railroad hereby consents to (i) the construction and maintenance by Industry of two rolling steel doors across said Track 2 at the locations where said industrial track enters and leaves the building of Industry; and (ii) the construction and maintenance by Industry of an overhead chip-blower pipe loader and overhead chip-bin loader (together hereinafter styled ‘Facilities’) over said Tracks 1 and 2 at the locations shown on said print.

“3. Industry will acquire and hereby guarantees to Railroad full right and lawful authority to maintain and operate any portion of said industrial tracks which may be located beyond the limits of the right of way of Railroad, or upon or across any public highway and will, moreover, whenever requested by Railroad so to do and without cost to Railroad, vest or cause to be vested in Railroad, by good and sufficient deed in form to be approved by Railroad, a good marketable title, free from encumbrances, to such easement or right of way over and upon land located beyond the southwesterly boundary of Railroad’s present main line right of way as may be required by railroad for the maintenance and operation of those portions of said tracks.

“4. Title to those portions of said tracks located as shown in green on said print are vested in Industry, and title to those portions of said tracks located as shown in red on said print are vested in Railroad. Railroad shall have entire control of said tracks and the operation thereof, and may use the same as well for the business of third persons, not parties hereto, as for that of Industry; provided that such use of said portions of track owned by Industry, as aforesaid, for the benefit of third persons shall not unreasonably interfere with the business of Industry.

“5. Industry will, at the cost and expense of Industry, maintain said portions of track located as shown in green on said print, owned by Industry, as aforesaid, in good condition and repair and in all respects in accordance with the reasonable requirements of Railroad looking to the safe and convenient operation of engines and cars on said tracks; it being understood that Railroad will maintain said portions of said tracks located as shown in red on said print and owned by Railroad as aforesaid. If Railroad or Industry shall elect that Railroad shall furnish materials and perform the work of maintenance of the portions of said tracks, chargeable to Industry, as aforesaid, Railroad will maintain the same for account of Industry, provided Industry shall pay in advance to Railroad the cost of such maintenance, from time to time, as required.

“6. Industry agrees, except as to existing structures, to observe and be bound by the rules of Railroad for standard clearance, that is to say, an overhead space of 22 feet measured perpendicularly from the top of the rail (except that overhead clearance where wire lines extend over said tracks shall be such as may be prescribed by Railroad) and a space 20 feet in width, measured 10 feet on each side from center line of each of said tracks, shall be kept clear of any obstruction, and all structures, facilities or property of Industry above or parallel to said tracks shall be safely and substantially maintained by Industry to preserve said clearances; PROVIDED, however, that as to existing structures where standard clearances do not obtain, Industry, shall place and maintain warning signs, satisfactory to Railroad, at conspicuous places on such structures to the effect that such structures will not clear man on side of car, or on top of car, as the case may be.

“7. Industry will construct and maintain, at its own cost, said doors across said industrial track at the locations indicated on said annexed print; said doors to be constructed in such manner as to provide when opened an unobstructed space above and on either side of the center line of each of said tracks of not less than the distances shown marked on said annexed print. Industry shall provide a substantial device to which each of said doors may be fastened and made stationary when railroad equipment is moving through the doorways; said device to be so arranged that when said door is fastened thereto the distance between door and the center line of each of said tracks will at no point be less than the distances shown on said annexed prints.

“8. Industry will assume full responsibility for the safe and proper maintenance and use of said doors and facilities and will indemnify and save harmless Railroad, and any associated, controlled or affiliated corporation from and against the consequences of any property loss or damage, death or personal injury whatever accruing from or by reason of the construction, maintenance or use of said doors and facilities, or by reason of the presence of the same across or above said tracks, or which may result from or be attributable to any restricted clearances for said industrial tracks, whether or not negligence of Railroad may have caused or contributed to such loss, injury or death.

“9. Industry will indemnify and save harmless Railroad, and any associated, controlled, or affiliated corporation, from and against all damages resulting from negligence of Industry or the servants and employees of Industry, in and about said tracks and the rights of way therefor, and from and against all claims for loss or damage by fire communicated by locomotives or trains of Railroad to buildings or structures (including contents) used by Industry or the tenants of Industry, in connection with the business served by said tracks, or to other property stored by or with the consent of Industry upon or near said tracks. Railroad stipulates for this protection as a condition of its agreement to afford terminal services and facilities to Industry elsewhere than at the regular station of Railroad.

“10. All carload shipments consigned to Industry for delivery on said industrial tracks shall be deemed to have been fully and completely delivered as soon as the car containing such shipment shall have been placed on the tracks and detached from the engine or train by which it was moved. Railroad shall not be liable as common carrier, nor as bailee, for any property loaded into any car on said tracks until said car is attached or coupled to the engine or train by which it is to be moved from said tracks towards its destination, or until a bill of lading shall have been issued therefor, and until said car is so attached or coupled up, or a bill of lading is issued therefor, the said car and its contents shall be deemed and held to be in the possession of Industry so far as liability therefor is concerned.

“11. The provisions of this agreement shall inure to the benefit of and shall be binding upon, any other railroad company now operating or which may hereafter operate over or upon the tracks covered by this agreement. This contract is not assignable or transferable by Industry except with the written consent of Railroad, signed by an executive officer.

“12. Notwithstanding any other provision hereof, Industry agrees to comply entirely at its own expense with all requirements imposed by any governmental agency, state, federal, or local, with respect to clearances, walkways, specification and condition or maintenance of the tracks and portions of said tracks which are owned or maintained by Industry.

“13. This agreement shall be effective as of September 3,1971. Either party hereto may terminate this agreement by 60 days’ written notice to the other. Upon the expiration of such notice this agreement shall terminate whereupon Railroad may discontinue the operation of said tracks and remove any property of Railroad therefrom. Notwithstanding any other provision hereof, if Industry shall fail to maintain said tracks or portions of said tracks, which it herein agrees to maintain, or if Industry shall fail to observe proper clearances for said tracks as herein agreed by Industry, of if Industry shall fail to perform any of its covenants in this agreement contained, Railroad shall have the right forthwith to discontinue operation of said tracks, without liability to Industry, until said tracks are placed in proper condition for operation of proper clearances are effected, or such covenants performed.

IN WITNESS WHEREOF, the parties hereto have executed this agreement in duplicate, each part being an original, as of January 25th, 1972.”

EXHIBIT “B"

“THIS SUPPLEMENTAL AGREEMENT, made between

“THE ALABAMA GREAT SOUTHERN RAILROAD COMPANY, an Alabama corporation, its successors and assigns hereinafter called Railroad;

“INDUSTRIAL DEVELOPMENT BOARD OF THE TOWN OF LIVINGSTON, Alabama, hereinafter called Industry; and

“SUMTER PLYWOOD CORPORATION, hereinafter called Shipper:

“WITNESSETH: That

“WHEREAS, an agreement was entered into between Railroad and Industry dated January 25, 1972 (hereinafter called Agreement), concerning operation of 3 tracks at LIVINGSTON, Alabama, as described in said Agreement, and

“WHEREAS, Shipper desires to have said tracks operated for the receipt and shipment of freights in connection with the business of Shipper, and Railroad and Industry are willing to permit such use of said track;

“NOW, THEREFORE, the parties hereto agree as follows:

“(1) Industry agrees that said tracks may be operated by Railroad for the receipt and shipment of freights in connection with the business of Shipper upon the terms and conditions and subject to the covenants and agreements in said Agreement contained, said Agreement being hereby made part hereof by reference.

“(2) Railroad agrees to operate tracks for the purpose of affording unto Shipper facilities for the receipt and shipment of carload freights of Shipper over the lines of Railroad in accordance with lawfully published tariffs upon the express condition that Shipper shall be bound by and shall carry out and perform all of the terms and conditions of said Agreement insofar as the same may be applicable or may be made applicable, the same as if Shipper had executed said Agreement, and Shipper, hereby acknowledging receipt of a copy of said Agreement, hereby agrees to carry out and perform all of such covenants, conditions and provisions of said Agreement.

“(3) This supplement shall become effective as of the 3rd day of September, 1971, and shall continue in force until terminated by any party hereto by 30 days’ written notice to the other parties of election to cancel the same, whereupon this supplement shall terminate at the expiration of the period specified in such notice, provided, however, that in no event shall this supplement continue in force after the termination of said Agreement.

“(4) This supplement modifies said Agreement as herein provided, but no further, and said Agreement as herein supplemented shall remain in full force and effect until terminated in accordance with its terms.

“EXECUTED as of the 26th day of January, 1972.”

Upon these stipulations, the trial court found:

“1. That the Defendant is guilty of negligence which proximately caused property damage to the Plaintiff.

“2. That the release made and entered into between the parties prior to the negligent act of the Defendant which released the said Defendant railroad company, a corporation which was engaged in public service, from liability for damages for its own negligent acts is unenforceable and void as a matter of public policy where such public carrier provided services in an industrial park where it had previously constructed and owned a leadline established for the purpose or providing such service to such industrial park.

“3. That the indemnity clause contained in the agreement between Plaintiff and Defendant did not evidence an intent on the part of the parties to indemnify the Defendant against its own negligence.

“4. The Court finds that the parties did not contemplate, as a part of the pre-re-lease and indemnity agreement, that the railroad would commit a negligent act and do damage to the property of the Plaintiff on Labor Day, a day when said Plaintiff’s plywood mill was not in operation and none of plaintiff’s employees were present or on the scene or available to assume responsibility for the safe and proper use of the facilities so damaged.

“5. That the Plaintiff have and recover of the Defendant the sum of TWENTY ONE THOUSAND SEVEN HUNDRED NINETY EIGHT AND .31/100’s ($21,-798.31) DOLLARS together with the costs in this behalf expended for which let execution issue.”

From the entry of this judgment, AGS perfected this appeal.

The decisive issue for review is the validity and enforceability of the indemnification provision (or exculpatory clause) in paragraph 8 of the agreement between AGS and the Industrial Development Board of the Town of Livingston, set forth above in Exhibit A, to which Sumter Plywood later agreed to be bound.

We hold the provision invalid and unenforceable.

Our conclusion is based on the general rule in this state that a party may not contract against the consequences of his own negligence. Housing Authority of Birmingham District v. Morris, 244 Ala. 557, 14 So.2d 527 (1943); Smith v. Kennedy, 43 Ala.App. 554, 195 So.2d 820 (1966), cert. den. 280 Ala. 718, 195 So.2d 829 (1966).

The reason for the rule was aptly stated in Housing Authority of Birmingham District v. Morris, supra:

“ * * * it is a well recognized general principle, founded on human experience, that, ‘Agreements exempting persons from liability for negligence induces a want of care, for the highest incentives to the exercise of due care rest in consciousness that a failure in this respect will fix liability to make full compensation for any injury resulting from the cause. It has therefore been declared to be a good doctrine that no person may contract against his own negligence. * * *.’

Stated differently, as between the contracting parties, the provisions of a contract which would exempt one of the parties from the consequences of its own negligence is void as against public policy for the reasons that such a provision would foster negligence in the performance of a contract and not deter it.

We are fully aware, as AGS reminds us, that this court has recognized an exception to the general rule. For example, the court has held exculpatory clauses and indemnity provisions valid, where the contract in question involved a lease or easement. See Baker v. Wheeler, Lacy & Brown, Inc., 272 Ala. 101, 128 So.2d 721 (1961) [lease, tenant]; Republic Steel Corp. v. Payne, 272 Ala. 483, 132 So.2d 581 (1961) [deed, easement]; and Georgia, Florida, Alabama Transportation Co., Inc. v. Deaton, Inc., 293 Ala. 371, 304 So.2d 168 (1974) [equipment lease]. With reference to railroads, this court has upheld clauses in agreements between railroad companies and their license (or lessees) which exempted railroads from liability due to fire damage caused by train sparks. See Alabama Great Southern Railway Co. v. Demonville, 167 Ala. 292, 52 So. 406 (1910), and McKinney v. Mobile & O. R. Co., 215 Ala. 101, 109 So. 752 (1926). In these situations, the contracts (or agreements) in question involved Leases or other incidents to ownership of land by the railroad; such as a lease by a railroad company of a part of its right-of-way for the erection of a warehouse. The rationale employed to sustain the exculpatory stipulations in those instances is that the agreements are essentially private covenants in which the public has no interest and the enforcement of which will in no way be injurious to the public.

In brief, AGS intimates the instant action is sufficiently analogous to the above cited eases to bring it within this exception to the general rule that a party may not contract against the consequences of his own negligence. We disagree.

We find the present case distinguishable on this salient fact: the agreement between AGS, the Industrial Development Board and Sumter Plywood was not incident to an ownership of land by AGS; by lease or otherwise. The damaged chip-bin loader was on property obtained by Sumter Plywood pursuant to a lease-purchase agreement with the Industrial Development Board, not AGS.

Furthermore, to uphold the indemnity provision of the agreement in this action would surely tend to induce a want of care on the part of AGS which is clearly against the public policy of this state.

Holding as we do that this action is not within the exception to the general rule enunciated above, there is no need to address AGS’s contention that the indemnity provision is valid because it expressly provides for Sumter Plywood to indemnify AGS against loss whether or not the negligence of AGS may have caused or contributed to such loss.

The judgment of the trial court is due to be, and is, affirmed.

AFFIRMED.

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


author: EMBRY, Justice. EMBRY, Justice.

text:
    Oliver D. CHILDS et al. v. MISSISSIPPI VALLEY TITLE INSURANCE COMPANY, a corporation.
    77-139.
    Supreme Court of Alabama.
    April 21, 1978.
    Rehearing Denied June 23, 1978.
    Joseph J. Boswell, Mobile, for appellants.
    Jere Austill, Jr., of Austill, Austill & Aus-till, Mobile, for appellee.
    Benjamen T. Rowe, Mobile, for Roland Perry and Dub Mitchell, amicus curiae.
   EMBRY, Justice.

This is an appeal by Oliver D. and Mary Childs from a judgment dismissing their action, without prejudice, upon grant of Mississippi Valley’s Rule 12(b)(6), ARCP, motion to dismiss.

The sole issue presented by this appeal is whether the complaint states a claim upon which relief can be granted. If under a provable set of facts upon a cognizable theory of law it does, then it should not have been dismissed. Jeannie’s Grocery v. Baldwin County Electric Membership Corp., 331 So.2d 665 (Ala.1976).

The Childses claim their complaint states a claim on the theory of the tort of “outrage,” which has neither been accepted nor rejected in Alabama. Stated otherwise the issue is: whether Alabama should allow recovery of punitive and consequential damages and damages for mental pain and anguish in an insured’s suit against his insurer predicated upon the insurer’s bad faith misconduct.

It is necessary to set that complaint out here for a clear understanding of the case:

“FIRST CAUSE OF ACTION

“1. The plaintiffs in this case, Oliver D. Childs and Mary Childs, are bona fide resident citizens of Mobile County, Alabama. The defendant, Mississippi Valley Title Insurance Company, a corporation, is a foreign corporation with its principal place of business located in Jackson, Mississippi.

“2. Plaintiffs aver that heretofore on to-wit: the 5th of November, 1970, plaintiffs purchased real property situated in Mobile County, Alabama from Wilma B. Jones, a widow. The property described therein was conveyed by said grantor to plaintiffs by vendors lien deed. A copy of that instrument is attached hereto marked as Exhibit ‘A’ and made a part hereof by reference thereto as if fully herein set out.

. “On to-wit: the 9th day of November, 1970, the defendant issued a real estate title insurance policy to the plaintiffs. Under the terms of said insurance policy the defendant insured the plaintiffs against adverse claims to title, defects in or liens or encumbrances on the title to the estate or interest covered in the land described in the policy. A copy of the policy is attached hereto marked as Exhibit ‘B’ and made a part hereof by reference thereto as if fully herein set out.

“On to-wit: the 9th day of October, 1975, plaintiffs conveyed the property purchased from Wilma B. Jones, a widow, and insured by defendant, to plaintiffs daughter-in-law, Charlotte Childs. That conveyance was made by a full warranty deed. A copy of that instrument is attached hereto marked Exhibit ‘C’ and made a part hereof by reference thereto as if fully herein set out. Subsequent to plaintiffs said grantee taking title to said property, plaintiffs grantee attempted to obtain a title insurance policy on the property which had been conveyed to her by plaintiffs. In response to that request Title Guaranty and Abstract Company of Mobile issued a title binder on the property purchased by plaintiffs grantee. Said title insurance company advised plaintiffs grantee in said title binder in substance that plaintiffs had failed to convey said property to her free and clear of any defects in title due to the fact that one Steve R. Jones and Cynthia Jones, a son and daughter-in-law of the plaintiffs grant- or, Wilma B. Jones had obtained a warranty deed to the same property by an instrument dated, June 7, 1973. A copy of said title binder is attached hereto marked Exhibit ‘D’ and made a part hereof by reference thereto as if fully herein set out. In said title binder said title insurance company required that a quitclaim deed be obtained from Steve R. Jones and Cynthia Jones conveying the interest they obtained in the warranty deed executed to them on June 7, 1973. Plaintiffs, upon request of their grantee, then contacted Steve R. Jones and requested a quitclaim deed as required in said title binder. There is a deed of record executed in 1969, wherein Cynthia Jones and Steve Jones, husband and wife, joined in a conveyance with all other children and their spouses of Wilma B. Jones conveying to Wilma B. Jones all of their interest in the subject property which they had inherited from their deceased father, Bradley W. Jones. When plaintiffs contacted Steve R. Jones to request a quitclaim deed to remove the cloud on and defect in their warranted title which had been created by the recording of the deed dated June 7, 1973, the said Steve Jones refused to execute a deed of any kind and also advised plaintiffs for the first time that the 1969 deed with his signature thereon purportedly conveying his inherited interest in the property to his mother was invalid in that the signature purporting to be his was forged and that he made a claim against the subject property claiming that he owned an undivided interest in the property at the time his mother, Wilma B. Jones, conveyed the property to plaintiffs. Upon plaintiffs advising their grantee of the claim of forgery, plaintiffs grantee then called upon plaintiffs to remove or eliminate the adverse claim to title and to remove and eliminate the defect in and cloud on the title which title plaintiffs had warranted to be free of defects. Plaintiffs then verbally contacted said title insurance company, the authorized agent of defendant, in to-wit: December, 1976, and advised defendant of the adverse claim made by said Steve R. Jones wherein he claimed an ownership interest on the property insured by defendant which ownership interest was claimed to have existed on the date the property was conveyed by Wilma B. Jones to plaintiffs and on the date that defendant insured the title to plaintiffs. The defendant failed or refused to take any affirmative action of any kind to clear plaintiffs’ title of the cloud thereon and defect therein brought about by the adverse claim to title made by Steve R. Jones. Plaintiffs then hired an attorney to communicate with Title Guaranty and Abstract Company of Mobile, the agent of the defendant, in an effort to obtain from defendant the performance which was due and owing to plaintiffs under the terms of the title insurance policy attached hereto. By letter dated March 14, 1977, plaintiffs’ attorney communicated for the first time with Title Guaranty and Abstract Company of Mobile and in said communication made demand upon the defendant to undertake the defense of plaintiffs’ insured title and to do whatever may be necessary to remove the cloud created on and the defect in plaintiffs’ title as a result of the claim of forgery and adverse claim to title made by Steve R. Jones. A copy of that letter is attached hereto marked Exhibit ‘E’ and made a part hereof by reference thereto as if fully herein set out. Thereafter, plaintiffs’ attorney again communicated with Title Guaranty and Abstract Company of Mobile by letter dated April 12, 1977, and for the second time, made demand upon the defendant to either pay the person who claimed to own an interest in the property at the time plaintiffs purchased the same and at the time defendant insured the same, or in the alternative, to initiate whatever legal action may be necessary to cure the cloud on and defect in plaintiffs’ insured title as a result of the adverse claim to title made by Steve Jones. A copy of that letter is attached hereto marked Exhibit ‘F’ and made a part hereof by reference thereto as if fully herein set out. Thereafter, on July 15, 1977, plaintiffs’ attorney again communicated with Title Guaranty and Abstract Company of Mobile, and, for the third time, made demand in writing upon the defendant to either pay the person who claimed to own an interest in the insured title at the time the property was conveyed to plaintiffs and at the time defendant insured the same, or in the alternative, to forthwith initiate whatever legal action may be necessary to remove the cloud on and defect in plaintiffs’ insured title resulting from the adverse claim to title made by Steve Jones. A copy of that letter is attached hereto marked Exhibit ‘G’ and made a part hereof by reference thereto as if fully herein set out. The defendant failed and refused to take any affirmative action in response to the verbal and written demands of plaintiffs. On the 26th day of August, 1977, plaintiffs went to the office of Title Guaranty and Abstract Company of Mobile and inquired of the authorized agent of the defendant company what action, if any, the defendant had undertaken or intended to undertake to remove the cloud on and cure the defect in plaintiffs’ insured title resulting from the adverse claim to title made by Steve Jones, and defendant’s authorized agent verbally advised plaintiffs that Steve R. Jones had failed to respond to defendant’s efforts to communicate with him and that the defendant had done all it intended to do and had no intentions of making any further effort to cure the defect in and remove the cloud on plaintiffs’ insured title created by the claim of forgery and adverse claim to title made by the said Steve R. Jones and said agent further verbally advised plaintiffs at that time that if plaintiffs wished to determine the validity or invalidity of the adverse claim to title made by Steve R. Jones that plaintiffs could file their own lawsuit and pay their own legal expenses.

“3. Plaintiffs aver that although the said title insurance policy was in full force and effect and that although notice was given to the defendant that a claim of title or interest adverse to plaintiff’s title, as insured by defendant, was made by Steve R. Jones and although repeated demands were made for defendant to defend plaintiffs’ insured title or take affirmative action to cure and remove the defect or cloud resulting from the claim of forgery and adverse claim to title made by Steve R. Jones, the defendant nevertheless repeatedly failed and refused to take any affirmative action or perform its obligations due under the terms of said policy of title insurance and the defendant refused to honor the plaintiffs’ valid claim or demand. Plaintiffs aver that the defendant breached its implied in law covenant of good faith and fair dealing made in its policy of title insurance.

“4. Plaintiffs aver that as a result of the adverse claim to their insured title they have incurred liability to their grantee for the breach of the warranty of title made by them in their deed to their grantee. Plaintiffs further aver that the conduct of the defendant company in failing and refusing in bad faith to honor plaintiffs’ valid claim and demand and in failing and refusing to perform its obligations due under the terms of its title insurance policy has caused in the past and continues to cause the plaintiffs to suffer extreme mental pain and anguish for which plaintiffs claim damages. Plaintiffs also demand punitive damages be assessed against the defendant for its unfounded refusal to perform its contract obligations, for its breach of its implied covenant of good faith and fair dealings and for its bad faith in refusing to honor its contract obligations which were due to plaintiffs under the terms of plaintiffs’ title insurance policy which was issued by defendant.

“WHEREFORE plaintiffs demand judgment against the defendant in the sum of FIVE HUNDRED THOUSAND AND NO/100 ($500,000.00) DOLLARS plus cost.”

The exact terms of the pertinent provisions of the policy insuring the plaintiffs are:

“Mississippi Valley Title Insurance Company, herein called the Company, for a valuable consideration, hereby insures the party named in Schedule A, hereinafter called the Insured, the heirs, devisees, personal representatives of such Insured, or if a corporation, its successors by dissolution, merger or consolidation, against loss or damage not exceeding the amount stated in Schedule A, together with costs, attorneys’ fees and expenses which the Company may become obligated to pay as provided in the Conditions and Stipulations hereof, which the Insured shall sustain by reason of:

“1. any defect in or lien or encumbrance on the title to the estate or interest covered hereby in the land described or referred to in Schedule A, existing at the date hereof, not shown or referred to in Schedule B or excluded from coverage in Schedule B or in the Conditions and Stipulations; or

“2. lack of a right of access to and from the land;

all subject, however, to the Conditions and Stipulations hereto annexed, which Conditions and Stipulations, together with Schedules A and B, are hereby made a part of this policy; all as of the effective date of this policy.

“IN WITNESS WHEREOF, the said Mississippi Valley Title Insurance Company has caused its corporate name and seal to be hereunto affixed by its duly authorized officers as of the date shown in Schedule A, the policy to be valid when countersigned by an authorized officer or agent of the Company.

******

“2. Exclusion from the Coverage of this Policy

“This policy does not insure against loss or damage by reason of the following:

“(a) The refusal of any person to purchase, lease or lend money on the estate or interest covered hereby in the land described in Schedule A.

“(b) Any law, ordinance or governmental regulation (including but not limited to building and zoning ordinances) restricting or regulation or prohibiting the occupancy, use or enjoyment of the land, or regulating the character, dimensions, or location of any improvements now or hereafter erected on said land, or prohibiting a separation in ownership or a reduction in the dimensions or area of any lot or parcel of land.

“(c) Governmental rights of police power or eminent domain unless notice of the exercise of such rights appears in the public records at the date hereof.

“(d) Title to any property beyond the lines of the land expressly described or referred to in Schedule A, or title to areas within or rights or easements in any abutting streets, roads, avenues, lanes, ways or waterways (except to the extent the right of access to and from said land is covered by the insuring provisions of this policy), or the right to maintain therein vaults, tunnels, ramps or any other structure or improvement, unless this policy specifically provides that such titles, rights or easements are insured.

“(e) Defects, liens encumbrances, adverse claims against the title as insured or other matters (1) created, suffered, assumed or agreed to by the Insured; or (2) known to the Insured either at the date of this policy or at the date such Insured acquired an estate or interest insured by this policy and not shown by the public records, unless disclosure thereof in writing by the Insured shall have been made to the Company prior to the date of this policy; or (3) resulting in no loss to the Insured; or (4) attaching or created subsequent to the date hereof.

“(f) Loss or damage which would not have been sustained if the Insured were a purchaser for value without knowledge.

“3. Defense and Prosecution of Actions — Notice of Claim to be Given by the Insured.

“(a) The Company, at its own cost and without undue delay, shall provide for the defense of the Insured in all litigation consisting of actions or proceedings commenced against the Insured, which litigation is founded upon defect, lien or encumbrance insured against by this policy, and may pursue such litigation to final determination in the court of last resort.

“(b) In case any such action or proceeding shall be begun, or defense interposed, or in case knowledge shall come to the Insured of any claim of title or interest which is adverse to the title as insured, or which might cause loss or damage for which the Company shall or may be liable by virtue of this policy, the Insured shall notify the Company thereof in writing. If such notice shall not be given to the Company within ten days of the receipt of process or pleadings, or if the Insured shall, not, in writing, promptly notify the Company of any defect, lien or encumbrance insured against which shall come to the knowledge of the Insured, then all liability of the Company in regard to the subject matter of such action, proceeding or matter shall cease and terminate; provided, however, that failure to notify shall in no case prejudice the claim of any Insured unless the Company shall be actually prejudiced by such failure and then only to the extent of such prejudice.

“(c) The Company shall have the right at its own cost to institute and prosecute any action or proceeding or do any other act which in its opinion may be necessary or desirable to establish the title as insured; and the Company may take any appropriate action under the terms of this policy whether or not it shall be liable thereunder and shall not thereby concede liability or waive any provision of this policy.

“(d) In all cases where this policy permits or requires the Company to prosecute or provide for the defense of any action or proceeding, the Insured shall secure to it the right to so prosecute or provide defense in such action or proceeding, and all appeals therein, and permit it to use, at its option, the name of the Insured for such purpose. Whenever requested by the Company the Insured shall give the Company all reasonable aid in any such action or proceeding, in effecting settlement, securing evidence, obtaining witnesses, or prosecuting or defending such action or proceeding, and the Company shall reimburse the Insured for any expense so incurred.

“4. Notice of Loss — Limitation of Action

“In addition to the notices required under paragraph 3(b), a statement in writing of any loss or damage for which it is claimed the Company is liable under this policy shall be furnished to the Company within sixty days after such loss or damage shall have been determined and no right of action shall accrue to the Insured under this policy until thirty days after such statement shall have been furnished, and no recovery shall be had by the Insured under this policy unless action shall be commenced thereon within five years after expiration of said thirty day period. Failure to furnish such statement of loss or damage, or to commence such action within the time hereinbe-fore specified, shall be a conclusive bar against maintenance by the Insured of any action under this policy.

“5. Option to Pay, Settle or Compromise Claims

“The Company shall have the option to pay or settle or compromise for or in the name of the Insured any claim insured against or to pay the full amount of this policy and such payment or tender of payment, together with all costs, attorneys’ fees and expenses which the Company is obligated hereunder to pay, shall terminate all liability of the Company hereunder.

“6. Payment of Loss

“(a) The liability of the Company under this policy shall in no case exceed, in all, the actual loss of the Insured and costs and attorneys’ fees which the Company may be obligated hereunder to pay.

“(b) The Company will pay, in addition to any loss insured against by this policy, all costs imposed upon the Insured in litigation carried on by the Company for the Insured, and all costs and attorneys’ fees in litigation carried on by the Insured with the written authorization of the Company.

“(c) No claim for damage shall arise or be maintainable under this policy (1) if the Company, after having received notice of an alleged defect, lien or encumbrance not excepted or excluded herein removes such defect, lien or encumbrance within a reasonable time after receipt of such notice; or (2) for liability voluntarily assumed by the Insured in settling any claim or suit without written consent of the Company.

“(d) All payments under this policy, except payments made for costs, attorneys’ fees and expenses, shall reduce the amount of the insurance pro tanto and no payment shall be made without producing this policy for endorsement of such payment unless the policy be lost or destroyed, in which case proof of such loss or destruction shall be furnished to the satisfaction of the Company.

“(e) When liability has been definitely fixed in accordance with the conditions of this policy the loss or damage shall be payable within thirty days thereafter.”

The extent of coverage under the policy is $3,000.

Code 1940, as amended, Tit. 28A. § 94 (§ 27-5-10), (Code 1975), reads:

“§ 94. ‘Title insurance’ defined. — Title insurance is insurance of owners of property or others having an interest therein, or liens or encumbrances thereon, against loss by encumbrance, or defective titles, or invalidity, or adverse claim to title.” (emphasis added)

The premises upon which the Childses conclude their complaint states a cause of action in tort entitling them to recover damages for mental pain and anguish as well as punitive damages are: 1. The policy insured them against adverse claims to their title. 2. They have breached their warranty to their grantee because at the time of conveyance by them there was a recorded conveyance of title to others by their grantor which was not of record when they obtained title. 3. They have notified their insurer of this defect in or cloud upon their title. 4. Defendant, insurer, although having a duty to do so, has in bad faith failed to take affirmative action to cause the defect in or cloud upon their title to be removed.

Mississippi Valley counters with the argument that no right of action in tort against a title insurance company is recognized in Alabama for its failure to take affirmative action to clear the title to land against an adverse claim where no interest in the land is owned by the insured; there has been no ouster of either the insured or subsequent holders of title claiming through the insured; there has been no litigation filed asserting an adverse claim; no loss or damage to the insured has occurred, other than mental pain and anguish (outrage) of the insureds, as a result of the title company failing in bad faith to file suit or take other affirmative action to remove the defect or cloud on title, and the terms of the policy do not require the insurer to initiate any affirmative action.

At the outset it is well to note that the Childses allege no loss or damage other than outrage and with commendable candor ask that this appeal not be decided upon a rationale that treats their complaint as stating a claim for breach of contract. We shall not.

The Childses seek our adoption of the tort of bad faith. The tort of bad faith is generally defined as follows:

“Every contract contains an implied in law covenant of good faith and fair dealing; this covenant provides that neither party will interfere with the rights of the other to receive the benefits of the agreement. (Gruenberg v. Aetna Ins. Co., supra, 9 Cal.3d 566, 574, 108 Cal.Rptr. 480, 510 P.2d 1032; Comunale v. Traders & General Ins. Co., 50 Cal.2d 654, 658, 328 P.2d 198.) Breach of the covenant provides the injured party with a tort action for ‘bad faith’ notwithstanding that the acts complained of may also constitute a breach of contract. (Crisci v. Security Ins. Co., supra, 66 Cal.2d 425, 430, 58 Cal.Rptr. 13, 426 P.2d 173; Fletcher v. Western National Life Ins. Co., supra, 10 Cal.App.3d 376, 401, 89 Cal.Rptr. 78.) * * * ” Jarchow v. Transamerica Title Insurance Co., 48 Cal.App.3d 917, 122 Cal.Rptr. 470 (1975)

In brief, the Childses rely heavily upon Jarchow as persuasive authority in urging us to recognize a cause of action in the instant case under the tort of bad faith. We cannot.

In Jarchow, bad faith was found because the insurer in that action, breached an explicit duty owed to the insured to take affirmative action to provide the insured with a clear title. This duty was evidenced by the following conditions and stipulations stated in the policy, as taken from the court’s opinion in that case:

“ * * * ‘The Company, at its own cost and without undue delay shall provide (1) for the defense of the Insured in all litigation consisting of actions commenced against the Insured . .; or (2) for such action as may be appropriate to establish the title ... as insured, which litigation ... is founded upon an alleged defect, lien or encumbrance insured against by this policy . . . ’ (Emphasis added.)”

That case is readily distinguishable from the action before us. Here, no such affirmative duty was required of Mississippi Valley. A careful reading of section (c) of the provision in the policy entitled: “3. Defenses and Prosecution of Actions — Notice of Claim to be Given by the Insured”, set forth earlier in the opinion, reveals Mississippi Valley was not required to take any action to establish the title as insured. Section (c) only says Mississippi Valley shall have the right to do so. Therefore, without owing a duty to take such affirmative action on this matter, there could be no breach which could support a cause of action for bad faith.

Concluding, this court, in the proper case, has not rejected first party bad faith tort actions against an insurer. See Waters v. American Casualty Co. of Reading, Pa., 261 Ala. 252, 73 So.2d 524 (1954); Dalrymple v. Alabama Farm Bureau Ins. Co., 267 Ala. 416, 103 So.2d 711 (1958); Nationwide Mutual Insurance Co. v. Smith, 280 Ala. 343, 194 So. 505 (1967). We are merely holding that, for the reasons given, a claim for relief was not stated in this case under that theory of law.

AFFIRMED.

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

ON REHEARING

EMBRY, Justice.

Able and distinguished counsel for appellants in support of his application for rehearing contends that commencing on page 1151 of the court’s opinion this court incorrectly stated grounds 2 and 3 of the premises upon which the appellants concluded their complaint stated a cause of action in tort for “bad faith.” A more accurate statement of appellants’ premises is:

1. The policy insured them against adverse claims to their title.

2. They have breached their warranty to their grantee because at the time of the conveyance by them there was an unknown adverse claim to their title which was based on an alleged ownership interest which existed at the time they took title from their grantor.

3. They notified their insuror of that adverse claim to their title.

4. Defendant, insuror, although having a duty to do so, has in bad faith failed to take affirmative action to cause to be removed the defect or cloud upon their title resulting from the adverse claim.

The decision rendered by the court in this cause is simply that even where a defect in title existed at the time the policy was issued, no affirmative duty was required of the title company under the facts of this case because Section 3(c) of the policy only provides that “Mississippi Valley shall have the right * * * to take affirmative action.” The decision was clearly based on the provisions of Section 3(c), which this court, in its opinion, distinguished from the terms of the policy in the Jarchow case. Since there was no duty to take affirmative action on this matter, there could be no breach to support a cause of action for bad faith.

OPINION EXTENDED; APPLICATION FOR REHEARING OVERRULED.

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