author: DOUCET, Judge. STOKER, Judge,

text:
    Geneva McKINNEY, Plaintiff-Appellee, v. Larry GREENE et al., Defendants-Appellants.
    No. 7258.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 21, 1979.
    Dissenting Opinion Jan. 3, 1980.
    Rehearings Denied Feb. 4, 1980.
    Writ Refused March 21, 1980.

      Brittain & Williams, Joe Payne Williams, Natchitoches, for defendant-appellant.
    Lunn, Irion, Switzer, Johnson & Salley, James B. Gardner, Shreveport, Davis & Simmons, James Lynn Davis, Many, for defendants-appellees.
    Tate & McManus, Vernon C. McManus, Eunice, for plaintiff-appellee.
    Before SWIFT, STOKER and DOUCET, JJ.
   DOUCET, Judge.

Geneva McKinney brought this tort action individually and on behalf of .her minor son, Robert Hicks. In her petition, plaintiff alleged that Robert had been kicked by Larry Greene, principal of the Pleasant Hill Elementary School, as a result of which both she and the child had suffered mental and physical pain, and the child had incurred a disability. Larry Greene, the Sabine Parish School Board and the Insurance Company of North America were named as defendants.

Greene and the Sabine Parish School Board filed third party demands with their answers to plaintiff's petition. Greene brought a third party demand against the school board, alleging that LSA-R.S. 17:416.1 required the school board to provide him with a defense and indemnify him against any judgment rendered against him. The school board’s third party demand was brought against Greene’s professional liability insurer, Horace Mann Insurance Company, and its own liability insurer, the Insurance Company of North America. The school board sought indemnity from the insurers for any judgment rendered against it, and the imposition of attorney’s fees against its insurer, because of the insurer’s refusal to defend it.

Following a trial on the merits, judgment was rendered in favor of plaintiff in her capacity as tutrix of her minor child and against Larry Greene in the amount of $500.00. Plaintiff’s demand against the Sabine Parish School Board and the Insurance Company of North America were dismissed. The third party demands filed by Greene and the school board were also dismissed. Greene appeals the judgment rendered in favor of plaintiff and the dismissal of his third party demand. The school board has answered the appeal, asking that the dismissal of its third party demand be reversed. Plaintiff has not appealed.

The incident giving rise to this suit took place on March 1, 1977 at the Pleasant Hill Elementary School in Sabine Parish. Robert Hicks, a thirteen year old student in the school’s special education program, was seen attacking a younger boy on the school playground. Mrs. Doll Carhee, the playground supervisor for that day, intervened and took the two boys to the school cafeteria, where the principal, Larry Greene, was assisting with serving lunch. As Mrs. Car-hee was explaining to Mr. Greene what had taken place on the playground, Robert began to push the other boy again, apparently attempting to start a fight. Mr. Greene shouted at the boys, ordering Robert to “back off.” At the time, Mr. Greene was standing on the opposite side of a serving counter from the boys and had a lunch tray in one hand and a serving spoon in the other. He repeated his command twice more then walked around the end of the serving counter and kicked Robert in the buttocks with the side of his shoe.

Mr. Greene testified that he kicked Robert because he felt that a fight was imminent, and Robert had failed to respond to his verbal commands. The force of the kick, although of sufficient intensity to get the child’s attention and cause him to stop his activities, was apparently slight. The evidence, which included a report from a physician who examined Robert shortly thereafter, clearly established that he had suffered no physical harm as a result of it.

LSA-R.S. 17 ¡416.1(A) provides that “teachers, principals, and administrators [in] the public schools may, subject to any rules as may be adopted by the parish or city school board, employ other reasonable disciplinary and corrective measures to maintain order in the schools . . . .” Prior to the enactment of that provision, this court had held in Roy v. Continental Insurance Company, 313 So.2d 349 (La.App. 3rd Cir. 1975) that corporal punishment, reasonable in degree, is a permissible disciplinary measure, which teachers can use without becoming exposed to civil liability. It is clear that in enacting LSA-R.S. 17 ¡416.1(A) the legislature did not intend to prohibit the use of reasonable corporal punishment by teachers and school officials. Thompson v. Iberville Parish School Board, 372 So.2d 642 (La.App. 1st Cir. 1979). However, the individual school boards were given authority to adopt rules regulating and restricting its use.

Pursuant to that authority, on December 15, 1976, the Sabine Parish School Board adopted a resolution concerning the maintenance of discipline in the public schools, which provides in pertinent part: “Section 2.

(a) Corporal punishment for purposes of this resolution, and use in this school system is defined as, and limited to, punishing or correcting a student by striking the student on the buttocks with a paddle a maximum of five (5) times. When such corporal punishment is administered to a student, it must be administered in a reasonable manner taking into consideration the age, size, emotional condition and health of the student.
(b) Nothing contained herein shall be interpreted as prohibiting an employee from using physical force, reasonable and appropriate under the circumstances, in defending himself against a physical attack by a student or from using physical force, reasonable and appropriate under the circumstances, to restrain a student from attacking another student or employee.”

The principal, Larry Greene, was bound to observe these rules. The propriety of his actions in this case must be determined with reference to them.

Greene was clearly prohibited from kicking students as a means of administering corporal punishment in normal disciplinary situations. He argues, however, that his actions were governed by paragraph (b) of the excerpt from the school board resolution quoted above. Assuming for the sake of argument that the child’s behavior was of the type contemplated by the school board in adopting that paragraph, we cannot agree that Greene’s actions were “reasonable and appropriate under the circumstances”. The trial judge correctly concluded that an emergency situation did not exist. Greene had sufficient time to put down the items in his hands, which would have allowed him to use a less offensive but equally effective method of restraining the child.

We conclude that Greene’s actions were in violation of the school board’s rules governing the use of corporal punishment. We agree that he is liable for the child’s injuries, however, we believe that the trial judge’s award of $500 is excessive. It is clear that the child’s injuries were limited to the embarrassment and humiliation caused by his being disciplined. It is also clear that his behavior justified the principal’s use of corporal punishment. We do not believe that Greene’s improper administration of that punishment greatly increased the level of embarrassment and humiliation that he would otherwise have suffered if it had been properly administered. Accordingly, we will amend the judgment to reduce the award to $100.

Having decided that the award to plaintiff was properly made, we must determine whether the school board is required to indemnify Greene as alleged in his third party demand. LSA-R.S. 17:416.1(B) provides:

“Should any teacher, principal or administrator in the public school system be sued for damages by any student, the parent of any student or other persons qualified to bring suit on behalf of such student based upon the act or omission of such teacher, principal or administrator in the directing of and disciplining of school children under their care and supervision, it shall be the responsibility of the school board employing such teacher, principal or administrator to provide such defendant with a legal defense to such suit including reasonable attorney’s fees, investigatory costs and other related expenses. Should any such teacher, principal or administrator be cast in judgment for damages in such suit, it shall be the obligation of the school board employing such defendant to indemnify him fully against such judgment including all principal, interest and costs. Nothing in this section shall require a school board to indemnify a teacher, principal or administrator against a judgment wherein there is a specific decree in the judgment that the action of the teacher, principal or administrator was malicious, and willfully and deliberately intended to cause bodily harm.”

In his written reasons for' judgment, the trial judge started with reference to plaintiff’s claim against the school board that the school board was not responsible for Greene’s “intentional, wrongful acts”. However, we find nothing in the written reasons for judgment or in the language of the judgment itself clearly indicating that Greene’s act was found to be “malicious, and willfully and deliberately intended to cause bodily harm”. Moreover, we have found no evidence in the record that reasonably supports such a finding. Greene’s act was obviously deliberate, and was the result of poor judgment on his part. However, the evidence clearly shows that it was not prompted by malice or an intent to produce bodily harm.

The trial judge’s refusal to allow Greene’s claim for indemnity was apparently based on his approval of the school board’s argument in support of its third party demand against Horace Mann Insurance Company. At any rate, that would also explain his refusal to allow Greene’s claim for attorney’s fees, despite the explicit language of LSA-R.S. 17:416.1(B). The school board contends that the legislature never intended for it to be an “insurer of insurers.” It argues that because Greene was covered by a professional liability policy issued by Horace Mann Insurance Company, it should not be required to pay his legal expenses or indemnify him against any judgments.

We find no merit in that argument. LSA-R.S. 17:416.1(B) is clear and unambiguous. Its provisions cannot be disregarded under the pretext of pursuing what the school board contends is the true legislative intent. LSA-C.C. art. 13. The school board has a statutorily imposed obligation to defend its teachers, principals and administrators against this kind of suit and to indemnify them fully against adverse judgments, unless there is a finding that the disciplinary act was willfully and maliciously intended to produce bodily harm. The fact that Greene had limited coverage under a private professional liability policy did not relieve it of that obligation. Greene’s third party demand against the school board, should, therefore, have been allowed.

The above reasoning also applies to the school board’s third party demand against Horace Mann Insurance Company. Had the legislature elected to do so, it could have granted the school board the right to seek reimbursement from . its employee’s private professional liability insurer. Since it did not do so, and the school board does not have a contractual relationship with the insurer, we find no legal basis for granting the relief sought.

The only remaining issue is whether the school board is entitled to recover on its third party demand against the Insurance Company of North America. As we noted earlier, the school board seeks indemnity and attorney’s fees, because of the insurer’s refusal to defend it. Looking to the language of the policy issued by the insurer, we find that it excludes coverage “for damages, direct or consequential, arising from bodily injury, sickness, disease or death of any person.” Plaintiff’s petition alleged that the damages sought arose from bodily injuries sustained by the child when he was kicked.

An insurer’s obligation to defend suits brought against its insured is determined by the allegations of the plaintiff’s petition. The insurer is obligated to provide a defense unless the petition unambiguously excludes coverage. American Home Assurance Company v. Czarniecki, 255 La. 251, 230 So.2d 253 (1969). Coverage was clearly excluded in this case. The school board is, therefore, not entitled to recover on its claim against the Insurance Company of North America.

In accordance with the above, the judgment is amended to award Robert Hicks, represented by his duly qualified tutrix, Geneva McKinney, $100.00 on his claim against Larry Greene, and it is affirmed insofar as it (1) provides for that award, (2) rejects plaintiff’s demands against the Sabine Parish School Board and the Insurance Company of North America, and (3) rejects the Sabine Parish School Board’s demands against the Insurance Company of North America and Horace Mann Insurance Company. It is reversed insofar as it taxes defendant, Larry Greene, with all costs and fails to award him recovery against the Sabine Parish School Board for the amount of the judgment against him and reasonable attorney’s fees.

We believe that an attorney’s fee of $2,750.00 would be appropriate considering the nature of the case, the skill of counsel, the result achieved and the time apparently involved. Despite the fact that there were incidental actions, this was not a complex case, and the witnesses were few. The attorney’s fee includes both trial and appeal.

It is ordered, adjudged and decreed that there be judgment herein in favor of Larry Greene and against the Sabine Parish School Board in the amount of $100.00, with legal interest from February 24, 1978 until paid, plus an attorney’s fee in the amount of $'2,750.00.

Costs of all proceedings, both in the trial court and on appeal, are taxed against the Sabine Parish School Board.

AMENDED AND AFFIRMED IN PART, REVERSED IN PART AND RENDERED.

STOKER, J., dissents and assigns written reasons.

STOKER, Judge,

dissenting.

With respect I dissent from the majority holding in this case. Although I disagree with the finding of liability on the part of defendant, Larry Greene, I would agree to all other holdings of the majority. However, I disagree on the liability issue and would hold that Greene was not guilty of an actionable tort. To begin with, I do not consider that the evidence justifies characterizing the action of the defendant school principal as “kicking” Robert Hicks. Most importantly, I do not feel that any language in LSA-R.S. 17:416.1(A) was meant by the Louisiana Legislature to accord to local school boards the privilege of setting up standards of civil liability for intentional torts through administrative directions or prohibitions. Finally, it is my opinion that the action taken by the defendant was reasonable under the circumstances and was authorized under Section 2(b) of the resolution of the Sabine Parish School Board. Each of these points will be elaborated upon more fully below.

FACTUAL BACKGROUND

The majority opinion has correctly stated the facts. However the facts should be more fully explored to reflect the true character and nature of the action of Principal Greene, particularly to show that it is at least questionable whether his act could be properly called “kicking”. I would not interpret the act of Principal Greene as “kicking” within the intendment of any portion of the Sabine Parish School Board resolution, hereinafter referred to as “Board Resolution”.

Mrs. Doll Carhee, the Teacher’s Aide who brought Robert Hicks and the younger boy with whom he was involved into the lunch room to Principal Greene, testified on direct examination (Tr. 149 and 150) as follows:

Q. What did Mr. Green do after Robert Hicks started hitting on this Horton boy?
A. Well, he hollered several times for them to stop and they didn’t.
Q. What happened then?
A. Well, then he come from the counter with a spoon and a tray in his hand and he bumped Robert.
Q. What did he bump him with?
A. With the side of his foot.
Q. Where did he bump Robert?
A. On is back end.
Q. The buttocks area?
A. Yes, sir.
Q. What did Robert do?
A. Nothing.
Q. Did he continue to hit on the Horton boy?
A. No, he stopped.
Q. What did Mr. Green have him do then?
A. Go to the end of the line and get their tray and wait until lunch was served.

Mrs. Carhee testified on cross-examination (Tr. 165 and 166) as follows:

A. He yelled again.
Q. “Stop you boys”, did they stop?
A. No sir.
Q. What did he do then?
A. He came from behind' the counter with a spoon in one hand and a tray in the other one.
Q. What did he do then?
A.- He picked up the side of his foot.
Q. He picked up the side of his foot?
A. Picked up his foot.
Q. Do you mean with his hand?
A. No, sir.
Q. With what?
A. Raised his leg.
Q. What did he do with his leg when it was raised.
A. He used the side of it on Robert.
A. Well, I don’t call it a kick.
Q. How many times did he place his foot against Robert’s behind?
A. Once.

Mrs. Sandra Bryan witnessed the incident in the lunch room. On direct examination she testified (Tr. 195 and 196) as follows:

Q. And you say Mr. Green hollered for them to stop?
A. Yes, sir, he hollered I don’t know two or three times and they did not stop.
Q. What did Mr. Green do then?
A. After he raised his voice and they didn’t stop he stepped out from behind the counter and he had a spoon in one hand and a tray of food in the other hand and he stepped out and to get their attention he lightly touched Robert in the seat with the side of his foot.
Q. What did Robert do then?
A. They stopped then, he got their attention and they stopped and Mr. Green told them something to the effect to go back and get in line that he .would talk to them later.

Mrs. Bryan testified substantially the same under cross examination. (Tr. 210.)

The defendant Greene was called by counsel for plaintiffs on cross examination. When asked if he kicked Robert Hicks, he answered affirmatively and did not object to counsel using the word kick. (Tr. 72) However on direct examination (Tr. 216 and 217) he described his precise actions as follows:

Q. What part of your foot and which foot came in contact with Robert.
A. My left foot.
Q. What part of your foot?
A. The flat side of the left hand side.
Q. The left hand side of your shoe?
A. Yes, sir.
Q. Not the front part of your shoe?
A. No, sir.
Q. What were you trying to do?
A. I was trying to make them react to my command.

WAS KICKING IN THE TRUE SENSE OF THE WORD?

The trial court and the majority here found that Robert Hicks sustained no physical injury. The side of Principal Greene’s foot came into contact with Robert Hicks’ buttocks. Therefore, in the general sense of the word Greene did kick young Hicks. Nevertheless, it is important in this context to note exactly what happened. No significant force was applied, and the point of the toe was not utilized. The action, as already noted, caused no physical harm. Clearly defendant Greene could have touched Hicks on the shoulder or have taken hold of his arm for the purpose of getting his attention. It is clear that the action was not taken as punishment, but rather to get Hicks’ attention and prevent further physical contact between Hicks and the younger boy. Hence, it is simply not realistic to deem the contact of the side of the principal’s foot on Hicks’ hindside as a “kick” which would violate any rules of the board resolution or accepted standards of conduct between individuals under the circumstances.

LEGAL EFFECT OF THE BOARD RESOLUTION

As observed in the majority opinion, this Court held in Roy v. Continental Insurance Company, 313 So.2d 349 (La.App. 3rd Cir. 1975) that corporal punishment, reasonable in degree, is a permissible disciplinary measure, which teachers can use without becoming exposed to civil liability. I also agree with the majority statement that “[i]t is clear that in enacting LSA-R.S. 17:416.-1(A) the legislature did not intend to prohibit the use of reasonable corporal punishment by teachers and school officials.” Thompson v. Iberville Parish School Board, 372 So.2d 642 (La.App. 1st Cir. 1979).

Prior to the enactment of LSA-R.S. 17:416.1(A) the statutory law (LSA-R.S. 17:416) provided for disciplinary action against students in the form of suspension and expulsion only. Although the statutory authorization which existed prior to 1975 did not specifically provide for corporal punishment, as held in Roy v. Continental Insurance Company, supra, it did not prohibit it. Through Act 559 of the 1975 Session of the Louisiana Legislature which enacted LSA-R.S. 17:416.1, corporal punishment received statutory authorization. Subsection A of that statute provided for additional disciplinary measures over and beyond suspension and expulsion as provided in LSA-R.S. 17:416. The 1975 statute granted to teachers, principals, and administrators of public schools authority to “employ other reasonable disciplinary and corrective measures to maintain order in the schools . . . ”. This authority was stated to be in “addition to the specific disciplinary measures authorized in LSA-R.S. 17:416.”.

The act granting the additional authority in 1975 contained the proviso that the authority was “subject to any rules as may be adopted by the parish or city school board”. I differ with the majority in the construction it places on this language. The majority apparently interprets this language as permitting local boards to set or limit the form of the “other disciplinary and corrective measures” to be applied so as to affect civil liability. This is not necessarily the case. I see no reason to believe that the Legislature meant to authorize differing standards for civil liability for intentional torts growing out of unreasonable or excessive punishment administered to students by school authorities. It is just as plausible to believe that control of the matter was left to local school boards through administrative channels but to be confined to administrative action against the school official. The proviso in my opinion more probably was intended simply to allow school boards to set their own policies from an administrative point of view which would permit them to discipline the offending official. I see no reason why we must interpret the proviso as requiring that we import into our tort law the standards set by school board resolutions in legislation where the rights of litigants are concerned.

Conceivably, a particular school board might adopt standards so one-sided, and permit means or degrees of corporal or other types of punishment so harsh, that they would be unacceptable under reasonable state standards. By like token, a local school board could, adopt such restrictive standards that the 1975 statute would be rendered nugatory. Under such circumstances I would not agree that the courts of this State should be bound by the enactments of local school boards. Insofar as the majority holds that defendant Larry Greene was bound to observe the Sabine Parish School Board rules governing the situation, on pain of incurring civil liability to Robert Hicks, I disagree and respectfully dissent.

Under the circumstances of this case I would agree that the Sabine Parish School Board would have authority to apply its resolution, and if it felt that defendant Greene was guilty of a violation of school board policy, it could (as a purely administrative matter) take administrative action against him. The administrative action would be disciplinary in nature. It could run from a reprimand to more drastic action, provided all other laws were followed and all privileges were respected. An incident involving unreasonable or excessive punishment or control measures administered to a student may raise issues cognizable under criminal law, [see LSA-R.S. 14:18(4)], civil law for tort liability and law governing internal administrative control of school officials. Each area of law requires the application of differing considerations. As indicated above, I would interpret the proviso of the 1975 statute as pertaining to the administrative internal affairs of school systems and confine it to that.

DEFENDANT NOT CIVILLY LIABLE under school board policy

Assuming that the Board Resolution should govern the civil liability of defendant Greene, I believe, nevertheless, that he was fully authorized by the policy expressed in the Board Resolution to do what he did. Greene was not administering punishment to Robert Hicks. He was trying to get his attention and he was trying to stop a continuation of physical contact between Robert Hicks and the younger boy.

Section 2(b) of the Board Resolution specifically authorizes the use of reasonable and appropriate physical force “to restrain a student from attacking another student or employee”.. This is precisely what Greene was doing. Therefore, he should not be deemed to have violated the policy established by the Board Resolution for administering corporal punishment. Greene’s action was not punishment. It was restraining and preventative action.

Por the foregoing reasons I would reject plaintiff’s demand and dismiss the action against defendant Greene, the Sabine Parish School Board and the Insurance Company of North America. Therefore, I respectfully dissent.

      . The existence of these specific rules distinguishes this case from Thompson v. Iberville Parish School Board, supra. In that case, the court had not been fully apprised of the school board’s policy on corporal punishment. The court, therefore, evaluated the teacher’s conduct in terms of the general principles set out in Roy v. Continental Insurance Company, supra, which are less restrictive than the rules adopted by the school board in this case.

      . Defendant’s name is spelled Green throughout the transcript of testimony although the correct spelling is apparently Greene.

      . The Board Resolution was adopted by the Sabine Parish School Board on December 15, 1976. Plaintiffs counsel introduced the resolution into evidence as P-1 and it appears at page 54 of the transcript. The majority opinion quotes Section 2(a) and (b) of the resolution. A second document was introduced without explanation and without objections and marked School Board Number 1. The document appears at page 66 of the transcript. The document bears the title “Corporal Punishment”. However, there is no evidence as what it is supposed to represent. There is no evidence that was adopted by the Sabine Parish School Board. In fact, inspection shows that the document pertained to the Saint Landry Parish School Board and is dated October, 1977. In every place where the word Saint Landry appears, it is marked out in ink. The document purports to lay down guide lines for administering corporal punishment. It contains suggestions and some injunctions not to use certain forms of corporal punishment including pinching, slapping, striking, pulling of hair, kicking, shoving and sitting on a body for control. Even if these prohibitions represented school board policy, I regard the action of Principal Greene in this case as proper and in order for all three reasons given in this dissenting opinion. Nevertheless, it should not be given any effect as the document School Board Number 1 simply appears in the record without any key or clue as to what it is.
      Although it is my view that corporal punishment as such was not involved here, but rather preventative action I subscribe to the caveat contained in the opinion in Thompson v. Iber-ville Parish School Board, supra, which reads as follows:
      The only remaining question is whether the manner of administering the punishment was unreasonable. We do not believe that a teacher’s use of his foot to make contact with a student automatically places him outside the scope of his limited immunity. Significantly, we can conceive of very few situations in which a kick, no matter how gentle, would meet the test of reasonableness. However, the situation present in the instant case is one such incident. The blow was directed to the buttocks; it was of little force, bringing more embarrassment than pain; it was a quick and effective means of getting the attention of a child who had twice turned his back to the instructor and had ignored verbal reprimands. We emphasize that we are not hereby condoning the substitution of a foot for a paddle in all cases in which use of the latter would be appropriate. We simply hold that Bourgeois acted reasonably under the particular circumstances of this case.


source: Caselaw Access Project

author: LEMMON, Judge. GULOTTA, Judge,

license: Public Domain

text:
    William D. O’REGAN, III, et al. v. Leroy LABAT.
    No. 11165.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 8, 1980.
    William D. O’Regan, III, LaPlace, for re-lators.
    Becnel & Faucheux, Robert R. Faucheux, Jr., Reserve, for respondent.
    Before SAMUEL, LEMMON and GU-LOTTA, JJ.
   LEMMON, Judge.

This matter comes before the court on an application for supervisory writs, filed pursuant to C.C.P. art. 2201. In their applications plaintiffs complain of the trial court’s denial of their motion to strike late answers to their request for admissions and to deem admitted the truth of the matters set forth in the request. See C.C.P. arts. 1466, 1467.

There must be a limitation in allowing late answers to a request for admissions; on the other hand, however, an admission resulting from a late answer should not be automatic.

In the present case plaintiffs’ request seeks admission of many matters constituting controverted issues of law lying at the heart of the case. Automatic admission resulting from late answers would unduly suppress the determinations of the merits of the case. Moreover, there is no prejudice shown to the requesting party by the judgment refusing to strike the late answers. See Voison v. Luke, 249 La. 796, 191 So.2d 503 (1966); 8 Wright & Miller, Federal Practice and Procedure, § 2257 (1970); Finman, The Request for Admissions in Federal Civil Procedure, 71 Yale L.Rev. 371, 432 (1962).

The application is denied.

APPLICATION DENIED.

GULOTTA, Judge,

concurs and assigns reasons.

I agree with the trial judge that a request for admissions of fact requires service by the sheriff and no such service was made in this case. See LSA-C.C.P. 1313, 1314, and 1474.

The sanctions imposed by the failure of a party to respond to a notice for taking interrogatories are quite different from the sanction imposed by the failure to timely answer a request for admissions. Interrogatories or depositions may be rescheduled, or a rule to compel answers to the interrogatories or to compel one to submit to the taking of depositions may be filed, if a response is not made to the notice by mail. On the other hand, a party who fails to respond to a notice by mail of a request for admissions is deemed to have admitted facts sought in the request. By permitting admissions merely on representation, by the party seeking the request, that notice has been sent by mail (with no requirement for registered or certified mail) a party may be irreparably damaged.

Accordingly, I concur in the denial of the writ application.


author: SCHOTT, Judge.

text:
    Herbert E. MILLS v. Struby L. DRUMM, Jr., Drumm and Associates, Inc., and Coffee King, Inc.
    No. 11028.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 10, 1980.
    Rehearing Denied Feb. 1, 1980.
    Writ Refused March 21, 1980.
    Thomas M. Young, Turner & Young, New Orleans, for defendants-appellees.
    Garland R. Rolling, Metairie, for plaintiff-appellant.
    Before REDMANN, LEMMON and SCHOTT, JJ.
   SCHOTT, Judge.

This is an action of nullity brought by Herbert E. Mills as to a judgment of November 3, 1978, dismissing with prejudice his tort suit filed against Struby L. Drumm, Jr., Drumm and Associates, Inc., and Coffee King, Inc.

Plaintiff’s original suit was filed in April, 1976, and in April, 1978, his counsel of record filed a rule against the defendants to show cause why he should not be allowed to withdraw as counsel. The resulting judgment permitted the withdrawal of plaintiff’s counsel from the proceedings but fixed the merits of the case for trial on October 12, 1978. A copy of this judgment was personally served on the plaintiff on August 8.

On October 12 defendants filed a rule against plaintiff to show cause, on November 3, why his suit should not be dismissed with prejudice because of his failure to appear for the trial. The sheriff’s return shows plaintiff was served in person with the rule on October 18.

Plaintiff did not appear for the trial of the rule and judgment dismissing his suit with prejudice was rendered and signed by the court on November 2, 1978.

In his petition to annul this judgment plaintiff alleged that he was not personally served with the rule, contending that only personal service was appropriate since service was made at his place of business.

At the trial of the action of nullity the deputy sheriff who made the service testified that he had no independent recollection of the particular paper in question because there were many lawsuits being filed against and many papers being served on plaintiff, but he insisted that personal service was made on the basis of the return which he signed. Plaintiff testified that he was not served with the paper in question. He called as a witness his son who testified that he was served with this particular paper at his father’s place of business at the time when the service was purportedly made.

In this court, plaintiff contends that the trial judge erred as a matter of law in failing to accept the testimony of plaintiff and his son over the testimony of the deputy sheriff, considering that the deputy admitted having no independent recollection of this particular paper being served on plaintiff in person. Defendants rely on C.C.P. Art. 1292’s declaration that the sheriff’s return shall be considered prima facie correct and contend that the self serving statements of plaintiff and his son are insufficient to rebut the presumption established by the article.

We have concluded that the action of nullity was properly dismissed.

When the case was set for trial on October 12 and plaintiff made no appearance the stage was set for the implementation of C.C.P. Art. 1672, which provides as follows:

“A judgment dismissing an action shall be rendered upon application of any party, when the plaintiff fails to appear on the day set for trial. In such case the court shall determine whether the judgment of dismissal shall be with or without prejudice.”

In their brief defendants state that on plaintiff’s failure to appear for trial on October 12 their counsel orally moved the court for an order of dismissal which was denied, and the court instructed that a rule be filed against plaintiff to show cause why his case should not be dismissed.

Since defendants’ rule was an “application” within Art. 1672 the trial judge was required to dismiss the suit under the article’s mandatory language, and since defendants were entitled to an ex parte dismissal the question of service of the rule is immaterial.

Accordingly, the judgment appealed from is affirmed.

AFFIRMED.

ON APPLICATION FOR REHEARING

In his application for rehearing plaintiff contends that our original opinion is based on the assumption that defendants’ counsel moved to dismiss plaintiff’s case on October 12 but since this is not reflected in the record we should not consider it. He also complains because we based our judgment on an issue not raised by the parties.

Without retracting any part of our original opinion, we supplement it to the extent that an examination of the testimony taken at the trial of the nullity action does not provide a basis for reversing the trial judge. The only weakness (if it can be styled as such) of the testimony of the deputy sheriff was that he could not remember this particular paper from among all of those which he was serving on defendant around this time. However, he did not waver in his testimony that he must have served the paper in person on defendant, otherwise, the return would not say so. The self-serving testimony of plaintiff and his son is not necessarily sufficient as a matter of law to prevent the trial judge, who had the benefit of observing and hearing these witnesses in person, from deciding that the testimony was insufficient to rebut the presumption of service created by the testimony of the sheriff and the return.

The application for rehearing is denied.

REHEARING DENIED.


author: GARRISON, Judge.

text:
    Richard ROUSSEL, Jr. v. Paul KELLER and Paul Hardy, Secretary of State, State of Louisiana.
    No. 11241.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 17, 1980.
    Writ Refused Feb. 1, 1980.
    Richard Brazan, Jr., Vacherie, for plaintiff-appellant.
    Jack N. Rogers, Baton Rouge, for plaintiff-appellant.
    Thomas J. Kliebert, Gramercy, for defendant-appellee.
    Before SAMUEL, REDMANN and GARRISON, JJ.
   GARRISON, Judge.

This case arises out of the December 8, 1979, election for Parish President of St. James Parish. The tabulation showed Paul Keller to have been the apparent winner, with 4,446 votes, and Richard Roussel, Jr., to have been in second place, with 4,444 votes.

Roussel contested the election in a suit (No. 13,860) filed in the 23rd Judicial District Court, and followed this with a subsequent suit (No. 13,862). At a hearing held on December 17, 1979, the absentee ballots were recounted in response to plaintiff’s initial petition (No. 13,860) and the district court ruled that all absentee ballots were valid and had been properly counted.

Although the two suits below had been consolidated, plaintiff-appellant appeals the second suit (No. 13,862), wherein Judge Le-Sueur also found for the defendant. The latter suit, which we here consider, had constituted a general challenge by Roussel with regard to the election results, along with particular allegations of improperly or illegally cast and/or counted votes. The plaintiff alleged “irregularities, widespread and pervasive, throughout the parish, of such a serious nature as to make it impossible to determine the correct result of the election” and asked the court to declare the election void. The plaintiff alleged that unqualified voters (specifically, persons not residents of the parish) voted in the election. The judgment appealed from maintains a defendant exception of no cause of action and dismisses the suit. However, Judge LeSueur allowed the plaintiff to go forward with his evidence by proffer. As we prefer to decide the matter on the merits, we consider the entire record, including the proffered evidence.

The evidence so presented by plaintiff-appellant cannot possibly justify the reversal of the judgment of the court below and the voidance of this election.

For example, plaintiff-appellant has contended that “some 25 persons” were allowed by various commissioners to vote even though “they were not registered voters in the precincts where they voted.” The said 25 names had been obtained from the polling list by appellant’s counsel. However, a careful comparison of these 25 names with the original registration cards (which voters sign when they vote) — introduced as evidence by counsel for appellee— reveals that these individuals quite apparently not only were registered but signed their registration cards as having voted.

What clearly appears to have occurred is an accumulation of occasional instances of spelling mistakes and name confusion on the part of the individuals who wrote the voters’ names down on the polling lists as they voted. However, these names — as well as the very pattern of the polling list errors — make it possible to discern the actual and precise names of the 25 registrants voting. This would appear to be a rather easy error in transcription to make in the course of maintaining polling lists, especially during those periodic instances when voters appear at the polling places in groups and individuals — who are not stenographers — have to rush to keep up with the influx. In an election in which approximately 9,000 people voted, 25 such marginal bookkeeping errors indeed would appear to be a rather small sampling, one — in any case — net related to fraud or even error with regard to the election outcome.

Plaintiff-appellant additionally produced the names of some individuals who cast absentee ballots when, allegedly, they lived outside of the parish. A case-by-case review of these individuals indicates that the evidence does not support a conclusion that they actually occupied permanent domiciles outside of the parish. It would not have been sufficient enough, standing alone, to remove their names from the registration cards and disenfranchise them. Correspondingly, it was not of sufficient weight to undo their vote and void the election. At the most, one is compelled to conclude that in several of these instances, the individuals concerned may have temporarily been out of the parish, for varying periods, while continuing to regard the parish as their home, inasmuch as they continued to maintain their voting registration there.

The remaining few samples of “voting irregularity” cited by appellant also are matters of no significance whatever, such as the one and the same married woman registered as “Mrs. J. R. Schexnayder” voting absentee as “Ethel Schexnayder.”

In summary, although the election was remarkably close there is no hint that it was not an honest one. To the contrary, considering the large number of citizens who voted and the relative paucity of complaints about impropriety, it appears to stand as a very fair and well run election.

For the reasons assigned, the judgment appealed from is affirmed insofar as it dismisses plaintiff’s suit.

AFFIRMED.

      . For every voter’s name on the poll list that is not in the precinct register, there is a voter’s name in the precinct register that is not on the poll list: there was not one vote in any precinct more than the number of voters who signed their registration cards in the precinct registers as voting on the day of the election. We cite as an example Ward 1 Precinct 1, said to have three votes from unregistered persons but all three are identifiable as registered voters who signed the precinct register.
      One of the three names plaintiff cites is a simple error in middle initial: Sherry R. [A.] Burnett. Plaintiffs witness’s spelling Bemette, repeated in plaintiffs brief, may be present in some other poll list but not in the one in evidence. In any case, the “duplicate” poll lists required by La.R.S. 18:561 may be written by two different commissioners, each with its own misspellings and other mistakes, or, if one is the result of copying the other, new mistakes may occur in the copying. We found five other misspellings in the poll list’s first 36 names (Ullysses [Ulysses] Washington; Authur [Arthur] J. Murry; Warner S. Esnealt [Esneault]; Randall J. Schexhayder [Schexnayder]; Geffo-ry [Geoffrey] F. [no middle initial] Deville; and Hope Zergingue [Zeringue]). It is downright unreasonable to assert that such poll list errors should invalidate a close election.
      The other two names on that precinct’s poll list but not in the precinct register are explained as commissioner error greater but no more fraudulent than misspellings. One of those two names, “James M. Bourgeois,” appears following Mrs. Gloria M. Troxclair, Gay M. Troxclair (both of Box 462, Gramercy) and Mrs. Carlo Mancuso, and preceding Audrey M. Bourgeois. The signature of James N. Trox-clair, also of Box 462, Gramercy, was entered on his card in the precinct register as voting in this election but his name does not appear on the poll list. Obviously it was James N. Trox-clair who voted with his family but who was named by commissioner error on the poll list as James M. Bourgeosi — using Audrey M. Bourgeois’s last name and middle initial. (Similarly “Clarence M. Roussel,” followed on the poll list by Dawn Roussel, turns out to be Clarence M. Poche, whose signature in the precinct register shows he voted but whose name does not appear as such on the poll list.
      Defendant’s brief identifies most of the names questioned by plaintiff. We do not accept defendant’s briefs attachment as evidence but as argument, because it is no more than a recital of what is contained in the poll lists and precinct registers which are in evidence. Even where defendant’s brief is incorrect, we have verified every name and the evidence does indeed explain all alleged instances as mere commissioner error in transcribing names. In every single case we verified the correct name of the voter (in several instances plaintiff simply misreads the poll list), and that that voter’s registration card was signed as voting on December 8, 1979, and that that voter’s name does not appear on the poll list other than at the number on the list challenged by plaintiff.
      We do note instances in which defendant’s brief errs but the result is nevertheless correct. For example, “Linda Joseph,” poll list no. 439 in Ward 6 Precinct 1, in fact reads “Glenda Joseph” on the poll list and registered voter Glenda Joseph did vote on December 8. Defendant’s explanation that this voter was Linda Joseph Jones whose name is not elsewhere on the poll list is wrong; “Linda J. Jones” does appear on the poll list at no. 1441. Similarly defendant errs in asserting “Loretta D. Steib” was Lucille Dumas Steib (because “Lucille D. Steib” did vote, at no. 638 on the poll list), but Claretta D. Steib also signed the precinct register as voting that day and we do not find “Claretta" on the poll list: undoubtedly “Loretta” is only a misspelling of “Claretta.” Similarly “Mazie Dumas” may be either Esther Marie Dumas (whose signature for many elections has been “Marie Esther Dumas”) or Marie S. Dumas; there is only one “Marie” on the poll list, and no Esther, and “Mazie” is presumably “Marie.”
      We also note that “Monia [Madonna] Triche” signed her precinct register card once after October 27, 1979 — presumably on December 8 because no other election has intervened — but her last signature is undated.
      We repeat that there is not a single case of an illegal vote among the 25 plaintiff challenges.

      . For example, there was testimony that one absentee voter had spent the bulk of his time for the last year and a half in Mobile, Alabama, where he and a partner had a part interest in some business. There was also testimony of another absentee voter’s being in Lakeland, Florida, for a similar period, working with his father-in-law in the jewelry department of a Wilson’s store. This testimony simply does not establish that either of those absentees did not retain a residence in St. James Parish (notwithstanding other living arrangements out-of-state), which is all that is required under La. R.S. 18:101. The most doubtful of all of the cases cited by plaintiff is that of Jan Millet Donaldson, whose own testimony makes it unclear whether she has any residence in St. James Parish: she has a residence in St. John the Baptist Parish for almost a year and is about to have a house built on her land in St. James Parish but she does not testify of maintaining a residence in St. James, as, for example, at her parents’ home. Even so, that is only one doubtful vote and, because that vote was cast in person on a voting machine, it is not possible to know for whom that vote was cast; thus that vote’s elimination does not cast any doubt on the outcome of the election.


text:
    Jessie Lee BROWN, Administrator of Estate of John Brown, Deceased v. NICHOLAS ACCOUSTICS & SPECIALTY COMPANY.
    No. 51609.
    Supreme Court of Mississippi.
    Jan. 16, 1980.
    Melvin H. McFatter, Port Gibson, for appellant.
    Ellis, Braddock & Bost, A. J. (Buddy) Dees, Jr., Vicksburg, for appellee.
   Appeal from Circuit Court, Claiborne County; Ben Guider, Judge.

Before SMITH, P. J., and SUGG and BOWLING, JJ.

AFFIRMED.


text:
    Laura BUCK v. Ronald Keith JACOBSON.
    No. 51578.
    Supreme Court of Mississippi.
    Jan. 16, 1980.
    Loyacono & Field, R. Louis Field, Vicksburg, for appellant.
    Teller & Teller, M. James Chaney, Jr., Vicksburg, for appellee.
   Appeal from Circuit Court, Warren County; Ben Guider, Judge.

Before PATTERSON, C. J., and BROOM and COFFER, JJ.

AFFIRMED.


text:
    GIORDANO-KIRBY INSURANCE AGENCY v. CITY OF PEARL, Mississippi.
    No. 51596.
    Supreme Court of Mississippi.
    Jan. 16, 1980.
    Davis Hall Smith, Jackson, for appellant.
    Bacon, Stone, Jernigan & Goodman, John E. Stone, Jackson, for appellee.
   Appeal from Circuit Court, Rankin County; Rufus H. Broome, Judge.

Before SMITH, P. J., and SUGG and BOWLING, JJ.

AFFIRMED.


text:
    Wade PETTIGO et al. v. MUELLER BRASS COMPANY.
    No. 51614.
    Supreme Court of Mississippi.
    Jan. 16, 1980.
    Crawley & Ford, Michael H. Steele, Kosciusko, for appellants.
    Mitchell, McNutt, Bush, Langrone & Sams, Thomas D. Murry, Tupelo, for appel-lee.
   Appeal from Chancery Court, Itawamba County; James E. Bost, Chancellor.

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

AFFIRMED.


text:
    John REED, Jr. v. STATE of Mississippi.
    No. 51717.
    Supreme Court of Mississippi.
    Jan. 16, 1980.
    Paul D. Snow, III, Jackson, for appellant.
    A. F. Summer, Atty. Gen. by Carolyn B. Mills, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Hinds County; William F. Coleman, Judge.

Before PATTERSON, C. J., and BROOM and COFER, JJ.

AFFIRMED.


text:
    Mr. and Mrs. Reed FOXWORTH v. Jacqueline E. Foxworth WASHINGTON.
    No. 51725.
    Supreme Court of Mississippi.
    Jan. 16, 1980.
    Jimmy D. McGuire, Gulfport, for appellants.
    Cecil Burton Jones, Jr., Biloxi, for appel-lee.
   Appeal from Chancery Court, Harrison County; Jason H. Floyd, Jr., Chancellor.

Before PATTERSON, C. J., and WALKER and LEE, JJ.

AFFIRMED.


text:
    Gloria Arlean TAYLOR v. PREFERRED RISK MUTUAL INSURANCE COMPANY.
    No. 51573.
    Supreme Court of Mississippi.
    Jan. 23, 1980.
    Hopkins & Logan, Floyd J. Logan, Stephen A. Anderson, Gulfport, for appellant.
    Tyner & McMahan, Thomas W. Tyner, Hattiesburg, for appellee.
   Appeal from Circuit Court, Harrison County; Leslie B. Grant, Judge.

Before SMITH, P. J., and SUGG and BOWLING, JJ.

AFFIRMED UPON CONDITION OF ADDITUR.

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


text:
    Robert S. WOOTAN v. Thomas Q. MARTIN et ux.
    No. 51597.
    Supreme Court of Mississippi.
    Jan. 23, 1980.
   Appeal from Chancery Court, Hinds County; J. C. Stennett, Chancellor.

Stephen L. Beach, Jackson, for appellant.

Keyes, Moss & Piazza, Joe B. Moss, Jackson, for appellees.

Before PATTERSON, C. J., and BROOM and COFER, JJ.

AFFIRMED.

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


text:
    METRO EQUIPMENT COMPANY et al. v. Albert L. DUPREE.
    No. 51633.
    Supreme Court of Mississippi.
    Jan. 23, 1980.
    Harold J. Barkley, Jr., John H. Crouch, Jackson, for appellants.
    James G. McIntyre, Jackson, for appellee.
   Appeal from Circuit Court, Rankin County; Rufus H. Broome, Judge.

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

AFFIRMED.


text:
    Willie C. LAUGHLIN, Jr. v. STATE of Mississippi.
    No. 51724.
    Supreme Court of Mississippi.
    Jan. 23, 1980.
    Walker, Brookins & Walker, William Walker, Jr., Phillip J. Brookins, Jackson, for appellant.
    A. F. Summer, Atty. Gen. by Karen Gil-foy, Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Scott County; Marcus D. Gordon, Judge.

Before PATTERSON, C. J., and BROOM and BOWLING, JJ.

AFFIRMED.


author: WRIGHT, Presiding Judge.

text:
    Charles C. ETHRIDGE v. Mildred I. ETHRIDGE.
    Civ. 1921.
    Court of Civil Appeals of Alabama.
    Oct. 10, 1979.
    Rehearing Denied Nov. 14, 1979.
    George M. Higginbotham, Bessemer, for appellant.
    J. Clewis Trucks, Fairfield, for appellee.
   WRIGHT, Presiding Judge.

Defendant appeals from a judgment finding him in contempt of court for failing to pay alimony and denying his petition for modification of a prior judgment requiring payment of alimony.

Plaintiff petitioned for citation for contempt for failure to pay alimony. Defendant responded with an answer charging plaintiff with living openly or cohabiting with a man. He requested termination of alimony because of such conduct as provided by § 30 — 2—55, Code of Alabama (1975) (Cum.Supp.1978). Defendant further requested modification for change of circumstances.

Evidence was heard orally by the court. Defendant was found in contempt for failing to pay alimony as ordered by judgment of November 1, 1976. He was ordered confined to jail until he paid the determined arrearage of $1,800. The plaintiff was found by the court not to have been living openly or cohabiting with a man under the statute. Defendant was ordered to pay $350 in attorney fees. His request for modification of the prior judgment was denied.

The first issue is that the trial court erroneously determined that plaintiff did not live openly or cohabit with a man. The evidence was that prior to July 31, 1978, a man lived for some time at the home of the plaintiff. The date and length of his stay are not clear. It is undisputed that plaintiff and the man went to bars and danced together. They ate some meals together at the home of plaintiff’s son. The man on occasion drove plaintiff’s car to the store. Plaintiff stated that the man rented a room from her for a time and she evicted him for failing to pay rent. She testified that they went out socially on occasion, but that there was no sexual intimacy between them. That statement was buttressed by her testimony that she was, at the time, physically incapable of sexual intercourse. There was no rebuttal to that testimony.

Defendant argues that the court based its findings of no cohabitation solely upon the absence of sexual intercourse and thus erred. We do not agree. The court did make specific findings of fact relating to the acts of plaintiff, among which was that she did not commit adultery and that she was incapable of having sexual intercourse. However, we consider such findings merely facts supportive of the primary finding that plaintiff did not live or cohabit with a man so as to forfeit her right to alimony under § 30-2-55. There is other evidence which also supports that primary finding. We have heretofore said that whether there exists a state of “living openly or cohabiting with a member of the opposite sex” is a question of fact for the court. Atkinson v. Atkinson, 372 So.2d 1106 (Ala.Civ.App.1979). We agree with defendant that proof of inability to perform sexual intercourse does not negate a determination of “living openly or cohabiting.” However, it is a fact which may be considered in making such determination. We are unable to find error in the trial judge’s finding that defendant failed to carry his burden of proof.

The second issue is in two parts: (a) Did the court err in allowing evidence of the amount in a savings account in the name of defendant’s, present wife? (b) Did the court err in refusing to modify the payment of alimony?

We find no injurious error in the admission of evidence as to the savings account in the present wife’s name. It was pertinent to inquire as to the account to determine if its source was the defendant or if he had an interest in it. Of course, it could not be considered an asset of the defendant if the evidence showed it to be the property of the wife.

Under the state of the evidence, we find it undisputed that the defendant is unemployed, having been fired from his job prior to the hearing. His only income is stated to be a Social Security payment of $90 per week. He has no retirement and no money. There is no evidence that he has either real or personal property from which he can pay alimony in the sum of $90 every two weeks and maintain himself. Clearly the evidence establishes a marked change in the financial condition of defendant since the prior judgment. It further shows employment of the plaintiff. Such change requires modification. Body v. Body, 47 Ala. App. 443, 256 So.2d 184 (1971). We therefore reverse the judgment as it denies defendant’s request for modification of the prior judgment as to the payment of alimony. We remand for further consideration or the taking of additional evidence if deemed necessary, to determine an amount of alimony, if any, defendant should pay to plaintiff in the future.

We also, in view of the evidence, find the award of attorney fee to plaintiff in the amount of $350 unreasonable and reverse that part of the judgment and remand for further consideration.

The remaining issue presented is that the judgment for alimony should have been terminated because the statute which supported it is unconstitutional. Orr v. Orr, 440 U.S. 268, 99 S.Ct. 1102, 59 L.Ed.2d 306 (1979). We have already decided that issue adversely to defendant in our decision after remand in Orr v. Orr, 374 So.2d 895 (Ala.Civ.App.1979); cert. denied, 374 So.2d 898 (Ala.1979). Our alimony statute is now gender neutral and is to be so applied. However, it has no application here unless defendant intends to contend that he is entitled to alimony from the plaintiff. We doubt that such is the case. We do not understand Orr to deny the right of a wife to an award of alimony based upon need and the ability of the husband to pay. It merely requires that .the same right be extended to the husband, when he can show the same circumstances of need and the ability of the wife to pay.

There is no issue presented in this appeal by defendant of the correctness of the judgment holding him in contempt nor as to the order of confinement until the contempt is purged. We therefore do not consider that aspect.

AFFIRMED IN PART, REVERSED IN PART AND REMANDED WITH DIRECTION.

BRADLEY and HOLMES, JJ., concur.


author: MADDOX, Justice.

text:
    Ex parte Charles C. ETHRIDGE (Re Charles C. Ethridge v. Mildred I. Ethridge).
    79-157.
    Supreme Court of Alabama.
    Dec. 21, 1979.
   MADDOX, Justice.

WRIT DENIED.

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


author: HOLMES, Judge.

text:
    Ione Mathews FOREMAN v. Alexander FOREMAN, IV.
    Civ. 1796.
    Court of Civil Appeals of Alabama.
    Jan. 2, 1980.

      Edward B. McDermott and Constance S. Aune of McDermott, Deas & Boone, Mobile, for appellant.
    John L. Capell, III of Capell, Howard, Knabe & Cobbs, Montgomery, for appellee.
   HOLMES, Judge.

This is a divorce case.

The wife appeals, contending that the trial court abused its discretion in the award of alimony in gross. We find no abuse of discretion requiring reversal.

Viewing the record with the attendant presumption, we find the following:

The husband filed for divorce alleging incompatibility, irretrievable breakdown and adultery.

Prior to the divorce action, the parties were married for approximately thirteen years. There were three children born of the marriage. The husband is engaged in the buying and selling of real estate and horses.

The evidence relating to the assets of the husband is not a paragon of clarity. However, it appears that the husband’s net worth at the time of the divorce was between $500,000 and $1,000,000. Apparently, all of these assets were accumulated during the marriage of the parties through virtually the exclusive efforts of the husband. Some of the assets were placed in the name of the wife or jointly with the husband.

The wife was employed by the Social Security Administration for the first three years of the marriage. She was, however, at the time of the trial unemployed.

The record further reveals that the wife admitted having a year and a half illicit relationship with a fourteen year old boy who worked for the husband. Several witnesses testified that they saw the wife and the boy hug and kiss on numerous occasions. The Foreman’s maid testified that she saw the wife and the fourteen year old boy engaged in sexual intercourse, which as stated above, the wife admitted to.

The trial court, after an ore tenus hearing, made a division of property with the wife receiving a sufficient amount of household furnishings to furnish a three bedroom house, one-half of all china, silver and crystal, and an automobile. The husband was required to pay to the wife $700 per month for child support. The wife was awarded $90,000 as alimony in gross. Additionally, the husband was required to pay the wife’s attorney a fee of $15,000.

At the outset, we note that the wife through able counsel contends that by virtue of the husband placing certain assets in the name of the wife or jointly with the husband these assets were in essence the wife’s separate estate. This is not the law. The determination of what is the wife’s separate estate is for the trial court. Shamblin v. Shamblin, Ala.Civ.App., 361 So.2d 580 (1978). Furthermore, when both parties submitted themselves to the jurisdiction of the circuit court as to property, which was held jointly, the trial court had authority to make such division as equity requires. Phillips v. Phillips, 52 Ala.App. 234, 291 So.2d 322 (1974).

When considering an award of alimony or division of property, the trial court may consider certain factors depending upon the facts of a particular case. See, Hamaker v. Hamaker, 57 Ala.App. 333, 328 So.2d 588, cert. denied, 295 Ala. 404, 328 So.2d 594 (1976). Among these factors is the conduct of the parties with reference to the cause of the divorce. That is, fault may be a consideration when the trial court makes an award. Clearly, in this instance, the wife’s actions were an important consideration in the trial court’s award.

In any event, in Latham v. Latham, 54 Ala.App. 305, 307 So.2d 703 (1975), where the trial court made an award to the wifé of approximately $100,000 from an estate of over $500,000, this court held there was no abuse of discretion.

Here, in this instance, where the action of the wife in having a long term affair with a fourteen year old child is considered and the wife’s lack of contribution in acquiring the assets, see, Marks v. Marks, Ala.Civ.App., 365 So.2d 1231 (1979); Johnson v. Johnson, Ala.Civ.App., 360 So.2d 996 (1978), clearly there is no abuse of discretion in the trial court’s award as to require reversal.

Both parties have requested an attorney’s fee on appeal. In view of the affirmance of the trial court, the wife’s request is denied. Considering the assets of the husband, his request for an attorney’s fee is denied.

The case is due to be affirmed.

AFFIRMED.

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


text:
    Kimberly Ellis SAUNDERSON v. Robert V. SAUNDERSON.
    Civ. 1968.
    Court of Civil Appeals of Alabama.
    Jan. 2, 1980.

      Stephen R. Arnold, Birmingham, for appellant.
    Bill Kominos, Ariton, for appellee.
   HOLMES, Judge.

This is a child custody case.

The parties were divorced by the Circuit Court of Jefferson County. The learned trial judge, after an ore tenus hearing, awarded custody of the party’s three year old female child to the father. The mother appeals and we affirm.

The dispositive issue is whether the learned trial judge abused his discretion in awarding custody to the father.

We have carefully reviewed the record in this case. Prudence dictates that we but summarize the facts the trial judge had before him in fashioning his decree.

Viewing the record with the attendant presumption we find the following. The parties married at an early age; he was nineteen, she was fifteen. Shortly after the birth of their daughter they separated, the mother taking the child.

It was at this time that the child began to suffer what the mother termed accidents. On one occasion the child reputedly pulled weights down on her foot, injuring it. The child was also burned in the eye by a lit cigarette. The mother explained that this injury occurred when she was holding the cigarette in her hand and the child walked into it. The child sustained even further injury when she received a broken leg as the result of an alleged fall from her bed.

The worst incident occurred at a time when the mother was living with a male friend. Having to work late, the mother took the child to a child care center and arranged to leave her overnight.

The operator of the center noticed cuts and bruises on the child’s face. When undressing the child to bathe her, she noticed blood on her underwear. Upon closer examination, she found marks on the child’s buttocks and on one breast. She further saw that the vaginal area was red and swollen.

The child care center notified the authorities and then took the child to the hospital. There was further testimony which revealed the that the vagina was swollen and the hymen perforated. The marks on her breast and buttocks were described as burns or brands.

The mother testified that she was not aware of these injuries until she went to the hospital and saw the child. The mother concluded her paramour must have been responsible. She said she confronted him with this and he immediately left. His location is presently unknown.

The Department of Pensions and Security entered the case and placed the child in a temporary foster home. As a result of proceedings not before this court, the father soon took the child to his home in Mobile.

The father testified he wanted permanent custody of the child and could provide a suitable environment. He had high hopes for a new business he was involved in. His fiancee aided in the providing of care for the child.

The trial judge divorced the parties and awarded custody to the father. The mother received restricted visitation rights.

The mother brings this appeal, claiming the learned trial judge erred in not following the “tender years doctrine.” Under this doctrine, the courts generally award custody of children of tender years to the mother unless she is found to be unfit. Brown v. Jenks, 247 Ala. 596, 25 So.2d 439 (1946).

While such a presumption offers a court much needed guidance in this delicate area, the presumption is subject to rebuttal. Borsdorf v. Mills, 49 Ala.App. 658, 275 So.2d 338 (1973). When custody is at issue, the paramount concern of this or any court is the welfare and best interest of the child. Linderman v. Linderman, 49 Ala.App. 662, 275 So.2d 342 (1973). In fulfilling its duty, the court must decide each case on its own peculiar facts and circumstances. Schulz v. Schulz, Ala.Civ.App., 373 So.2d 1142 (1979). When the trial court exercises its discretion after an oral hearing, we presume it to be correct and will reverse only if we are convinced from a review of the evidence that the court abused its discretion and that its judgment is plainly wrong and unjust. Stewart v. Grace, Ala.Civ.App., 360 So.2d 1032 (1978).

Suffice it to say that we find no error in this case. Indeed, to blindly adhere to the tender years doctrine on this set of facts would be to elevate it to a position of sanctity as never before afforded.

There was no evidence whatsoever that the child suffered any similar injuries while the parties were together or after the father took her to Mobile. Only while with the mother did she become “accident prone.” The above mentioned series of calamitous events culminated in the terrible sexual abuse allegedly perpetrated by the mother’s paramour.

On the other hand, the father immediately sought custody upon learning of this tragedy. He indicated a desire and the ability to raise the child in a wholesome manner. While he was lacking in formal education, he had recently begun a promising business venture. There was evidence his fiancee would welcome and nurture the child.

The case is due to be affirmed.

AFFIRMED.

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


author: BRADLEY, Judge.

text:
    Eugene C. BENNETT v. Andrew R. LEA and Douglas R. Deru, Partners, d/b/a Falcon Construction Company.
    Civ. 1975.
    Court of Civil Appeals of Alabama.
    Jan. 2, 1980.
    Walden M. Buttram, Gadsden, for appellant.
    R. Kent Henslee and William A. McCrary of Henslee & Bradley, Gadsden, for appel-lees.
   BRADLEY, Judge.

Plaintiffs, Andrew R. Lea and Douglas R. Deru, Partners, d/b/a Falcon Construction Company, sued defendant, Eugene C. Bennett, for work and labor done, breach of contract, and on an open account. Defendant denied liability generally and for the reason that the work had not been performed in a workmanlike manner, and then counterclaimed for damages for failure of plaintiffs to perform the work in a workmanlike manner, misrepresentation, and fraud. The court, sitting without a jury, found for plaintiffs in the amount of $4,200.00 and against the defendant on his counterclaim. Defendant appeals. We affirm.

On August 31, 1976 the plaintiffs and defendant entered into a contract whereby the plaintiffs agreed to construct a house for the defendant. The agreement provided that the defendant would pay for the cost of the construction plus a seven percent fee to the plaintiffs. Subsequently the plaintiffs orally agreed that this seven percent fee would be applied to only $60,000 if construction costs exceeded this amount.

The plaintiffs’ construction of the house was halted by the defendant prior to completion due to defendant’s financial condition. The defendant did take possession of the house, but refused to pay the plaintiffs’ seven percent fee.

The defendant’s basic contention on appeal is that the trial court’s judgment is not supported by the evidence.

At the outset we should note that in cases of this nature there is a presumption in favor of findings of fact made by the trial court since it hears the disputed evidence ore tenus. This presumption precludes our reversal of the trial court’s judgment unless it is clearly erroneous and against the great weight of the evidence. Alabama Farm Bureau Mutual Insurance Co. v. Davis, Ala.Civ.App., 354 So.2d 15 (1978).

In light of the ore tenus rule, we do not think the trial court’s judgment was in error. The plaintiffs introduced into evidence a written contract signed by the defendant. The terms of the contract clearly indicated that the defendant agreed to pay the plaintiffs a contractor’s commission in the amount of seven percent of the cost of constructing a house for the defendant. The defendant has testified that the approximate cost of the house was $60,000. The defendant does not deny the existence of the contract and has offered no evidence refuting the validity of its terms. In view of this evidence, we cannot say the trial court’s judgment in favor of the plaintiffs was clearly erroneous or unsupported by credible evidence.

The defendant has also appealed the trial court’s denial of his counterclaim. The counterclaim alleged breach of an implied warranty of workmanship, fraud, and misrepresentation on the part of the plaintiffs.

The evidence concerning the defects in the construction of the house is conflicting. The defendant testified that a basement wall in the house was cracking and bowed inward due to pressure from the soil outside the wall. He testified that he informed the plaintiff, Andrew Lea, of this defect, but that Lea did nothing to correct it. Mr. Lea took the position that he was not given an opportunity to cure the structural defect. He testified that he was willing to correct the defect in the basement wall if the defendant would pay for it as provided by the contract. Mr. Lea also testified that the house was built according to blueprints supplied by the defendant, plus each stage in the construction of the house was inspected and approved by the city building inspector. We think the above cited testimony supports the conclusion that the trial court’s denial of the defendant’s counterclaim for breach of implied warranty of workmanship is supported by credible evidence.

The defendant’s counterclaim for fraud and misrepresentation is based on an agreement between the plaintiffs and the defendant concerning payment for services performed by subcontractors. The agreement provided that the defendant would pay the plaintiffs for services performed by subcontractors for their services. The defendant argues that the plaintiffs did not pay the subcontractors the full amount paid by the defendant for such services, and therefore improperly withheld funds. The plaintiffs do not deny that funds were withheld from the subcontractors, but contend that the funds withheld were for maintenance and overhead,, equipment, a two percent city earnings tax, and advances made to employees. There is also conflicting testimony by Mr. Lea and the defendant as to the exact manner in which the subcontractors were to be paid. We think the evidence is clearly disputed on this issue. Therefore we cannot hold that the trial court’s denial of the defendant’s counterclaim for fraud and misrepresentation is so against the great weight of the evidence as to require reversal.

The judgment of the trial court is affirmed.

AFFIRMED.'

WRIGHT, P. J., and HOLMES, J., concur.


author: ADKINS, Justice.

text:
    STATE of Florida, Petitioner, v. Lawrence Carl WRIGHT, Respondent.
    No. 51853.
    Supreme Court of Florida.
    Nov. 21, 1979.
    Rehearing Denied Feb. 14, 1980.
    Jim Smith, Atty. Gen., and Richard G. Pippinger, Asst. Atty. Gen., Tampa, for petitioner.
    William F. Casler, St. Petersburg, for respondent.
   ADKINS, Justice.

By petition for certiorari we have for review a decision of the district court of appeal, Wright v. State, 344 So.2d 1334 (Fla.2d DCA 1977), which allegedly conflicts with a decision of this Court, Mikenas v. State, 367 So.2d 606 (Fla.1978) on the same point of law. Art. V, § 3(b)(3).

The question involved is whether a surviving co-perpetrator of a robbery is guilty of felony murder in the second degree when a policeman shoots and kills another co-perpetrator during the perpetration of the robbery. We answer in the affirmative.

The defendant, a person named McRae, and a person named Robertson were involved in the robbery of a store. Defendant and McRae committed the robbery while Robertson waited in the automobile. As they were attempting to leave after the robbery, the police intercepted the trio and a gun battle resulted. The defendant and Robertson were apprehended, but Robertson was fatally wounded by a bullet originating from the gun of one of the policemen.

Pursuant to plea negotiations defendant entered a plea of guilty to the robbery count and nolo contendere to the murder charge. Upon appeal the judgment of guilt for second degree murder was reversed and the judgment and sentence for robbery were affirmed. The district court of appeal held that section 782.04(3), Florida Statutes, defining those who shall be liable for second degree felony murder, does not contemplate a prosecution for that offense where an accomplice, co-conspirator or co-perpetrator of the underlying felony is subsequently killed by a police officer during the commission of the underlying felony.

In Mikenas v. State, supra, which was decided by this Court subsequent to the decision of the district court of appeal, this Court held to the contrary. In Mikenas the evidence disclosed that Barker, an auxiliary deputy sheriff, shot and killed Vito. Vito was a co-perpetrator. The defendant, in his appeal from a conviction of murder in the first degree, argued that only “innocent” persons killed during the perpetration of a felony were intended by the legislature to be included in the phrase “a person is killed” contained in section 782.04(3) Florida Statutes (1975). We held there was nothing in the clear language of the statute which limited application to innocent persons killed by one perpetrating or attempting to perpetrate a felony.

That portion of the decision of the district court of appeal which reverses the judgment of guilt for second degree murder is quashed and the cause is remanded with instructions to affirm the judgment and sentence for second degree murder and reconsider the judgment and sentence for robbery. See State v. Pinder, 375 So.2d 836 (1979).

It is so ordered.

ENGLAND, C. J., and BOYD, OVER-TON and ALDERMAN, JJ., concur.