author: CULPEPPER, Judge.

text:
    The HOME INSURANCE COMPANY, Plaintiff & Appellant, v. Mrs. Barbara Clostio SIMON, et al., Defendants & Appellees.
    No. 8727.
    Court of Appeal of Louisiana, Third Circuit.
    March 10, 1982.

      Johnson & McAlpine, John B. Peuler and Michael L. McAlpine, New Orleans, for plaintiffs & appellants.
    McGlinchey, Stafford & Mintz, Timothy F. Burr, New Orleans, Dennis J. Vidrine, Lafayette, Jones, Jones & Alexander, J. B. Jones, Jr., Cameron, Christovich & Kearney, R. K. Christovich, New Orleans, for defendants & appellees.
    Before CULPEPPER, GUIDRY and STOKER, JJ.
   CULPEPPER, Judge.

This is a suit for declaratory judgment. Plaintiff, The Home Insurance Company (hereinafter The Home), alleges that it issued to defendant, Louis Records & Associates, Inc., a comprehensive general liability policy covering certain aspects of that corporation’s involvement in workover operations at the United States Department of Energy West Hackberry Complex in Cameron, Louisiana. It further alleged that it was understood between the parties to the insurance contract that professional liability coverage was to be excluded from the general liability policy. A binder was issued to afford coverage to the defendant effective August 1,1978, and the following exclusionary endorsement was later added to the policy:

“It is agreed that this insurance does not apply to bodily injury or property damage arising out of the rendering of or the failure to render any professional services by or for the named insured, including:
(1) the preparation or approval of maps, plans, opinions, reports, surveys, designs or specifications and
(2) supervisory, inspection or engineering services.”

The plaintiff further alleged the defendant, Louis Records & Associates, has been named as defendant in various suits arising from an explosion and fire which occurred at the Hackberry Complex on September 21, 1978, and that the allegations of negligence in these suits, insofar as they pertain to Louis Records & Associates (hereinafter LRA), clearly fall within the binder’s exclusion of professional liability, as well as within the terms of the above written exclusion subsequently issued by the plaintiff.

The Home seeks a declaratory judgment against LRA and all plaintiffs in the suits for damages arising from the explosion and fire, that its comprehensive general liability policy does not afford coverage to LRA with reference to the pending lawsuits, and that The Home is not required to defend LRA in these suits. Parsons-Gilbane, general contractor for the project and an additional insured under the policy, and Gulf Interstate Engineering Company, another defendant and/or third party defendant in the damage suits, intervened in the declaratory judgment suit to assert their rights under the policy.

After the taking of certain depositions, the defendant LRA and intervenors Parsons-Gilbane and Gulf Interstate Engineering Company filed a motion for summary judgment supported by affidavits and the depositions of Louis Records, employee of the defendant LRA, and Howard Cornay and Fred Sommers, employees of the insurance agency which placed the subject insurance policy. The Home filed a cross-motion for summary judgment in its favor, and both motions were submitted for consideration at the same time. The trial court granted the motion for summary judgment in favor of defendants and against the plaintiff. Plaintiff appeals.

The issue is whether or not the trial court erred in holding that the defendants were entitled to summary judgment.

FACTS

The following are the facts adduced from the affidavits, depositions and other documents introduced in support of the motion for summary judgment. The STRATEGIC PETROLEUM RESERVE PROJECT was initiated by the United States Department of Energy in the latter part of the 1970s in an effort to stockpile petroleum reserves. Part of the project involved the stockpiling of reserves in the West Hackberry salt dome in Cameron Parish. The Department of Energy (DOE) contracted with Parsons-Gilbane to function as drilling manager for the project. Parsons-Gilbane subsequently negotiated with LRA a subcontract for Management Drilling Inspection Services, which entailed various duties of inspection and supervision with regard to work done on rigs by other subcontractors, as well as coordination of such work. Under the contract, LRA was to procure the liability insurance necessary to cover its operations at the West Hackberry site. Louis Records of LRA requested Mr. Howard Cornay, an agent with Harlan Insurance Agency, through whom Louis Records had obtained insurance for several years, to accompany him to a meeting with Parsons-Gilbane during the course of the subcontract negotiations, so that Mr. Cornay would be familiar with the insurance requirements and could procure insurance which would cover LRA’s operations. Mr. Cornay then had his associate, Mr. Fred Sommers, contact various insurance underwriters, inform them of the activities for which insurance was required, and request quotations as to the premium for such a policy from each. Bids were received, and the coverage for the project was placed with The Home in the form of three basic policies — automobile liability, workers’ compensation, and comprehensive general liability.

A written binder was issued by Mr. Cor-nay’s office with an effective date of August 1, 1978, binding The Home to insure LRA according to the terms and conditions of the policy and endorsements to be subsequently issued. The binder does not expressly state whether or not architects and engineers errors and omissions coverage is excluded. It states only that the binder “. .. is subject to the terms and conditions of policies and endorsements to be issued.."

The advisability and feasibility of procuring what is known in the insurance trade as architects and engineers errors and omissions insurance was discussed by Mr. Records and Mr. Cornay in terms of insurance for liability of a professional engineer for mistakes in professional judgments and decision-making, akin to medical malpractice insurance for physicians. It was decided that such was unnecessary and Mr. Records understood that liability for errors of a professional engineer would not be covered by The Home policy.

The accident occurred on September 21, 1978, while the binder was still in effect but before the policy issued. Pelican Well Service, a subcontractor, was replacing casing in Well # 6 Cavern 6 during a workover job. LRA had prepared the plan for this particular well. In addition, LRA’s representative, Mr. Irbie Hogue, was supervising the workover job. Hogue is not a professional engineer. He had learned his trade through experience. The well had several million barrels of oil in it, and there was pressure in the hole. To remove the casing they first inserted mud to “kill” the well. The next step was to insert a packer in the hole. The valve on the wellhead was not a full two inches, so it was necessary to use a smaller packer which would pass through the valve and still expand properly in the hole. The decision to use a particular packer was suggested by LRA representatives on the job and approved by Louis Records, who is a licensed professional engineer. A representative of the manufacturer of the packer came to the jobsite to supervise its installation. After the packer was installed and they were removing the casing from the hole, the packer failed to hold the pressure, and the well blew out. The exact cause of the packer failure is not known.

Four days after the accident, the policy issued on September 29, 1978. The initial policy did not contain the exclusion clause at issue. The Home contends this was due to a clerical error. On October 30, 1978, The Home issued an endorsement to the policy containing the exclusion upon which is based the denial of coverage, for the claimed purpose of correcting the policy to conform with the terms originally intended. It was sent to the insured, but Louis Records stated that no one ever requested that he sign it to signify the insured’s agreement to the change. Over a year after the accident and after the several damage suits arising therefrom had been filed against LRA, Parsons-Gilbane, and other defendants, The Home informed Mr. Records that it was denying coverage on the basis of the professional liability exclusion. Thereafter The Home filed this suit.

The decisive issue is whether there is a genuine issue of material fact remaining after a consideration of the evidence introduced in support of the motion for summary judgment.

SUMMARY JUDGMENT

The standard for determining the propriety of granting a motion for summary judgment was set out in Chaisson v. Domingue, 372 So.2d 1225 (La.1979), where the Louisiana Supreme Court stated:

“It is well settled that a motion for summary judgment should be granted if, and only if, the pleadings, depositions, answers to interrogatories, admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law. La.Code Civ.P. art. 966; Employers’ Surplus Line Ins. Co. v. City of Baton Rouge, 362 So.2d 561 (La.1978); Andrew Development Corp. v. West Esplanade Corp., 347 So.2d 210 (La.1977); Morgan v. Matlack, Inc., 342 So.2d 167 (La.1977); Stallings v. W. H. Kennedy & Son, Inc., 332 So.2d 787 (La.1976). Only when reasonable minds must inevitably conclude that the mover is entitled to judgment as a matter of law on the facts before the court is a summary judgment warranted. Employers’ Surplus Line Ins. Co. v. City of Baton Rouge, supra; Andrew Development Corp. v. West Esplanade Corp., supra; Morgan v. Matlack, Inc., supra; Cates v. Beauregard Electric Cooperative, Inc., 328 So.2d 367 (La.1976). The burden of showing that there is not a genuine issue of material fact in dispute is upon the mover for summary judgment. Any doubt is resolved against the granting of summary judgment and in favor of a trial on the merits to resolve disputed facts. Employers’ Surplus Line Ins. Co. v. City of Baton Rouge, supra; Andrew Development Corp. v. West Esplanade Corp., supra; Morgan v. Matlack, Inc., supra; Kay v. Carter, 243 La. 1095, 150 So.2d 27 (1963).”

The defendants in the present case argue that since The Home introduced no counter-affidavits or other evidence, there is no genuine issue as to material fact. This contention was answered in the recent case of Sanders v. Hercules Sheet Metal, Inc., 385 So.2d 772 (La.1980), in which the court held that the mover for summary judgment is not entitled to judgment on the sole basis that the opposing party has failed to respond to the motion by providing some evidence of the existence of a genuine issue. The court holds, under LSA-C.C.P. Article 967, that the burden is on the mover for summary judgment to prove that there are no genuine issues of material fact, and only if the mover’s evidence is sufficient does the burden shift to the opposing party to present evidence showing that material facts are still at issue.

The rule is well established that since an insurance policy is a contract between the insured and the insurer, it is to be given effect according to the intent of the parties. Oil Well Supply Company v. New York Life Insurance Company, 214 La. 772, 38 So.2d 777 (1949). Therefore, resolution of the issue of coverage in the instant case depends first upon whether the parties intended the exclusion clause at issue would be included in the policy or endorsements. Then, if the parties did intend the exclusion be included, there must be a determination as to whether LRA’s potential liability in connection with the Hackberry casualty falls within the exclusion.

Plaintiff-appellant contends there are genuine issues of material facts as to both these questions, despite the evidence introduced by the defendants in support of their motion.

Defendant contends their evidence proves that the subject exclusion was not intended by the parties to be in the policy or endorsements. Louis Records admits he intended the policy would exclude architects and engineers errors and omissions, but he contends he did not intend the exclusion clause would be as broad as the one ultimately placed in the endorsement. Moreover, LRA contends its activities in connection with the casualty do not fall within the exclusion, even if it was intended.

As to the intention of the parties regarding the exclusion clause, the evidence presented by the movant shows only the intention of the insured, not the intention of the insurer. Howard Cornay, the agent who placed the insurance, testified that he was a salaried employee of the Harlan Agency, Inc., which was independent of, unrelated to and uncontrolled by any underwriter or insurance company. Harlan’s agency contract with The Home gave its employees limited authority to bind The Home on specific coverages, subject to The Home’s approval. This evidence is important in determining whether Cornay was an agent of The Home.

“There is a distinction between insurance agents who are employed by an insurance company to solicit risks and effect insurance for that company, and insurance brokers, who solicit insurance from the public generally, under no employment from any special company, placing the insurance with any company selected by the insured or, failing such selection, by the broker himself. In the absence of special circumstances, an insurance broker generally is considered to be the agent of the insured in procuring a policy of insurance.” Karam v. St. Paul Fire & Marine Insurance Company, 265 So.2d 821 (La.App. 3rd Cir. 1972), affirmed 281 So.2d 728 (La.1973).

This court further stated in Karam that “(t)he fundamental distinction in the legal result is that the acts of one procuring insurance as the agent of the insurer are imputable to it, while those of one acting as the agent of the insured, or as a broker, are not,” quoting from Appelman, Insurance Law & Practice, Section 8725.

Inasmuch as the facts as testified to by Mr. Cornay show that he was not an agent of The Home, proof of his acts and intentions does not suffice to show The Home’s intentions with regard to what was or was not intended to be covered by the policy. Cornay’s testimony that he understood the policy would cover the actions of LRA’s executive supervisors (like Irbie Ho-gue) is not binding on The Home. Nor does the vague testimony of Cornay’s associate, Mr. Fred Sommers, that he fully informed The Home’s special agents of the insurance requirements of LRA on this job, but could not remember exactly what he told them, suffice to prove that The Home intended coverage of a casualty such as the instant one. Thus, there are genuine issues of material fact as to the nature of the exclusion clause which the parties intended would be included in the policy or endorsements.

Even assuming that the exclusion clause contained in the endorsement was intended by both parties, there are fact issues as to whether the activities being performed by LRA at the time of the casualty are excluded. The defendants argue on appeal that LRA was not performing professional services at the time of the casualty because its on site foreman, Irbie Hogue, was not a professional engineer. Secondly, appellees contend the decision to use this particular packer was not a professional engineer decision, but was merely administrative. However, the evidence shows that the plans for this particular job were prepared by LRA, that it was Supervising the job, and that the specific packer which failed was approved by Lewis Records, a professional engineer. Clearly, there are genuine issues of material fact which are material to the question of whether these planning and supervising activities by LRA fall within the exclusion.

As stated above, the evidence does not prove the cause of the packer failure. It could be that the decision to use this particular packer was the negligence that caused the blowout. It could be that the packer itself was defective. Without a trial on the merits, we can only speculate as to the cause of the packer failure. In order to determine whether the activities of LRA in connection with the packer are excluded under the clause in question, a trial on the merits will be required to determine the cause of the packer failure.

In conclusion, we are convinced that the present case is inappropriate for summary judgment. There are several genuine issues of material fact, including those mentioned above, which must be decided in a trial on the merits.

Defendants also contend that application of the exclusion is precluded by LRA-R.S. 22:628, which provides that no agreement modifying a contract of insurance is valid unless in writing and made a part of the contract. This argument is based on the evidence that the policy as originally issued did not contain the exclusion clause. The exclusion was placed in an endorsement issued the next day after the policy issued. As stated above, The Home contends this was the result of a clerical error, and that, in any event, they had a right to seek reformation of the policy to conform with the true intent of the parties. In our view, these contentions show additional reasons why this case is inappropriate for summary judgment. There are fact issues regarding the true intent of the parties, and perhaps also as to whether the failure of The Home to include the exclusion in the policy as originally issued was merely a clerical error.

For the foregoing reasons, the judgment appealed is reversed and set aside. This ease is remanded to the district court for further proceedings in accordance with law and the views expressed herein. All costs of this appeal are assessed against defendants-appellants.

REVERSED AND REMANDED.


source: Caselaw Access Project

author: DOMENGEAUX, Judge.

license: Public Domain

text:
    Barbara Ponthier BUXTON, Plaintiff-Appellee, v. Donald Ray BUXTON, Sr., Defendant-Appellant.
    No. 8739.
    Court of Appeal of Louisiana, Third Circuit.
    March 10, 1982.

      McHale, Bufkin & Dees, Michael K. Dees, Lake Charles, for defendant-appellant.
    Knoll & Knoll, Kerry L. Spruill, Marks-ville, for plaintiff-appellee.
    Before DOMENGEAUX, SWIFT and LABORDE, JJ.
   DOMENGEAUX, Judge.

This suit concerns the obligation of a spouse to pay permanent alimony.

On March 25, 1981, Barbara Buxton, plaintiff-appellee, filed suit against Donald Ray Buxton, Sr., defendant-appellant, seeking a divorce along with demands for past due alimony, past due child support, and for an increase in both. At the same time, a rule to show cause to fix alimony pendente lite and child support was set for hearing on April 10,1981. The petition for divorce and the rule were answered by defendant prior to the hearing on the rule.

After a hearing on the rule to fix alimony pendente lite and child support, the court, by judgment on rule, ordered Mr. Buxton to pay the sum of $135.00 as child support for the one minor child of the marriage, and the sum of $200.00 per month as alimony pendente lite.

Mr. Buxton appealed that judgment on May 8, 1981, but his appeal was later dismissed. The record in that case reflects that a judgment of divorce by default was rendered by the trial court on May 22, 1981, even though an answer had been filed by defendant as set forth above.

Thereafter, on July 10, 1981, Mr. Buxton filed suit to annul the previous default judgment. The judgment was ordered null by the trial judge, and on August 31, 1981, this case came before the trial court on the principal demand for a divorce. No new evidence was offered by either Mr. or Mrs. Buxton. The parties stipulated that if the witnesses who testified in the previous hearings (i.e. the hearing on the rule April 10, 1981, and the default proceedings on May 22, 1981) were called to testify, the testimony would be the same.

The trial court, after considering the stipulation of counsel and considering the evidence presented in the prior hearings, awarded Mrs. Buxton custody of the minor child and continued child support at the rate of $135.00 per month, plus all necessary medical, dental, and pharmaceutical expenses incurred by said child. Mr. Buxton was granted specific visitation privileges. Additionally, permanent alimony was awarded Mrs. Buxton in the sum of $200.00 per month for her support. This appeal followed.

The sole issue presented on appeal is whether or not the trial court erred in his award of permanent alimony to Mrs. Bux-ton.

La.C.C. Article 160 establishes the standard for permanent alimony, which provides as follows:

“When a spouse has not been at fault and has not sufficient means for support, the court may allow that spouse, out of the property and earnings of the other spouse, alimony which shall not exceed one-third of his or her income. Alimony shall not be denied on the ground that one spouse obtained a valid divorce from the other spouse in a court of another state or country which had no jurisdiction over the person of the claimant spouse. In determining the entitlement and amount of alimony after divorce, the court shall consider the income, means, and assets of the spouses; the liquidity of such assets; the financial obligations of the spouses, including their earning capacity; the effect of custody of children of the marriage upon the spouse’s earning capacity; the time necessary for the recipient to acquire appropriate education, training, or employment; the health and age of the parties and their obligations to support or care for dependent children; any other circumstances that the court deems relevant.
In determining whether the claimant spouse is entitled to alimony, the court shall consider his or her earning capability, in light of all other circumstances.
This alimony shall be revoked if it becomes unnecessary and terminates if the spouse to whom it has been awarded remarries.” (Emphasis added)

Mr. Buxton contends that the record lacks sufficient evidence supportive of a finding that his former wife was in necessitous circumstances, and therefore, she is not entitled to alimony under Article 160, supra. We disagree.

In Moss v. Moss, 379 So.2d 1206 (La.App. 3rd Cir. 1980), this Court reviewed Article 160 as well as the jurisprudence dealing with post-divorce alimony. Rather than pharaphrase, we quote, to-wit:

“By the terms of Article 160 Mrs. Moss might be eligible for alimony of up to one-third of her former husband’s income since she was without fault. However, she bears the burden of proving that she has insufficient means for her support. Bowman v. Bowman, 355 So.2d 564 (La.App. 3rd Cir. 1978); Pleasant v. Pleasant, 362 So.2d 1171 (La.App. 2nd Cir. 1978).
The term ‘support’ or ‘maintenance’ has been interpreted to include food, clothing, and shelter, the basic necessities of life, Smith v. Smith, 217 La. 646, 47 So.2d 32 (1950), as well as reasonable and necessary transportation expenses, utility expenses (such as gas and electricity), medical and drug expenses, household expenses, and income tax liability generated by the alimony payments, Bernhardt v. Bernhardt, 283 So.2d 226 (La.1973).”

As aforementioned, no new evidence was introduced at the hearing for divorce in this matter. The parties stipulated that if previous witnesses at the hearing on the rule were called on hearing of divorce, the testimony would be the same.

At the hearing on the rule Mrs. Buxton offered as evidence, without objection, a list for monthly expenditures which she read into the record. On the basis of this list Mrs. Buxton calculated her expenses to be about $655.00 per month. We note here that the list included some expenses which are not within the scope of Article 160, such as grooming necessities and personal items ($25.00), and educational expenses ($25.00). Moss, supra. Adjusting for these expenses, we calculate Mrs. Buxton’s monthly expenses to be approximately $615.00.

The record reflects that Mrs. Buxton commutes to Louisiana State University at Alexandria, and anticipates that it shall require approximately two more years full-time attendance for her to earn her degree. Mrs. Buxton is employed at St. Mary’s Catholic School in Alexandria where she works the 3 to 11 shift each day, earning about $400.00 a month. In addition to keeping this schedule Mrs. Buxton also cares for two of her children, the youngest one from the marriage to Mr. Buxton.

Considering the evidence we cannot say that the trial court was erroneous in concluding that Mrs. Buxton is in necessitous circumstances.

Appellant contends by argument in his brief that the trial court erred in setting permanent alimony at $200.00 per month. We find this contention to be without merit. It is axiomatic that the trial court has great discretion in fixing the amount of alimony. The award will not be disturbed on appeal in the absence of a clear showing of an abuse of discretion. Lovell v. Lovell, 386 So.2d 1063 (La.App. 3rd Cir. 1980); Labeuve v. Labeuve, 352 So.2d 749 (La.App. 3rd Cir. 1977).

The record clearly shows that Mrs. Buxton’s monthly personal expenditures alone run about $615.00. Her income, however, is only in the neighborhood of $400.00 per month, out of which she cares for herself, and fulfills her support obligations to two of her children. Presently she is attending college full time which, for the time being (i.e. until she graduates), limits her earning capacity. Mr. Buxton, on the other hand, is employed by the Lake Charles Police Department, and at the time of the trial was earning approximately $887.00 per month. The award of $200.00 per month alimony is well within the maximum allowable under Article 160, and in light of the circumstances, we are unable to say the trial judge abused his discretion by awarding permanent alimony in such amount. See Lovell and Labeuve, supra.

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

AFFIRMED.

      . In the nullity action Mr. Buxton contends that the divorce judgment taken by default was improper inasmuch as he had previously filed an answer in that action.

      . Defendant does not contest the award of child support.

      . Actually, three of Mrs. Buxton’s children and one grandchild reside with her. Her eldest child is a major and has a child of her own. Mrs. Buxton’s second to eldest child receives social security benefits which Mrs. Buxton uses for that child’s support.


author: DOUCET, Judge.

text:
    Malcolm Keith PEARCE, et al., Plaintiff-Appellee, v. L. J. EARNEST, INC., et al., Defendant-Appellant.
    No. 8670.
    Court of Appeal of Louisiana, Third Circuit.
    March 17, 1982.
    Writ Denied May 7, 1982.

      Gist, Methvin, Hughes & Munsterman, David A. Hughes, Alexandria, for defendant-appellant-appellee.
    James B. Frederick, Jr., Baton Rouge, for defendant-appellee-appellant.
    E. L. Edwards, Jr., Many, for plaintiffs-appellees.
    Before FORET, CUTRER and DOUCET, JJ.
   DOUCET, Judge.

Plaintiffs instituted this trespass action against the Department of Transportation and Development, and its contractor, L. J. Earnest, Inc., seeking damages for destruction of numerous ornamental trees and other property damage and, additionally, damages for inconvenience and mental anguish. The Department filed a third party demand against Earnest and its insurer, Safeco Insurance Company of America, who in turn filed a third party demand against the Department. The trial court granted judgment in favor of plaintiffs and cast the defendants liable in solido. Defendants appeal. We affirm.

Plaintiffs, Malcolm Keith Pearce , Laverne P. Hatcher, Velma P. Lewis, Katie P. Flaming, Nanette P. McFerin, Billy G. Pearce, Glenda P. Jacobs, and Michael G. Pearce brought suit alleging themselves to be owners, by virtue of inheritance from their deceased father and mother, of a certain tract of land adjacent to the Toledo Bend Forest Scenic Drive, located on La. Route 191 in Sabine Parish. Named as defendants were the Department of Transportation and Development (DOTD) and L. J. Earnest, Inc., parties in the process of improving the aforesaid highway. Plaintiffs alleged that on May 18, 1978, the defendants trespassed on plaintiffs’ property' and did substantial damage thereto over the course of several weeks, including removal of a fence, filling in a stock pond, and destroying numerous ornamental trees, to wit: twenty-six (26) pine trees measuring sixteen (16) inches and above in diameter, one (1) black walnut tree approximately fifteen (15) years of age, and one (1) mature Balsam Poplar tree, two (2) Catalpa trees eighteen (18) inches in diameter, one (1) Tulip tree twenty-five (25) years of age, and one (1) Red Oak tree thirty-five (35) inches in diameter. Additionally, plaintiffs claimed a gate was destroyed and the driveway was rendered impassable. Plaintiffs sought damages for destruction of the above items and resultant inconvenience, mental pain and anguish.

The Department of Transportation and Development answered, denying any liability, and made L. J. Earnest, Inc. and its insurer, Safeco Insurance Company of America third parties, alleging that it had a contract and bond with said L. J. Earnest, Inc. for a certain road project, during the performance of which the alleged damage was done, and that Safeco Insurance Company of America was the insurer of said L. J. Earnest, Inc.

L. J. Earnest, Inc. answered Plaintiff’s original petition with a general denial, then specially plead its contract with the Department of Transportation and Development, alleging it followed the instructions of said Department, and followed the plans and specifications it was furnished, and that if any damage was done it was under the instructions and direction of said Department.

L. J. Earnest, Inc. and Safeco Insurance Company of America answered the Third Party Demand, admitting its contract with the Department, and Safeco admitting its bond, and re-plead each and every answer of L. J. Earnest, Inc.’s original answer.

The Louisiana Department of Transportation and Development answered the Third Party Demand of L. J. Earnest, Inc. and Safeco Insurance Company of America, denying any liability on its part.

After trial of this matter, the trial judge concluded that the plaintiffs were in fact the owners of the property involved and granted judgment in favor of plaintiffs and against defendants, in solido, in the total sum of Eleven Thousand, One Hundred Fifty and no/100 ($11,150.00) Dollars. The judgment reflects awards of One Thousand, One Hundred Fifty and no/100 ($1,150.00) Dollars for costs of repair to the pond, Five Thousand Dollars ($5,000.00) for loss of the trees, and Two Thousand, Five Hundred and no/100 ($2,500.00) Dollars each for mental anguish and inconvenience suffered by Mrs. Laverne Pearce Hatcher and Malcolm Keith Pearce.

Defendant Department of Transportation and Development (DOTD) appealed, specifying as error the following trial court actions: 1) characterizing plaintiffs’ action as one in tort rather than inverse condemnation; 2) concluding the plaintiffs were the owners of the property involved; 3) awarding $5,000.00 damages for loss of the trees and $5,000.00 for mental anguish and inconvenience. Defendants L. J. Earnest, Inc. and Safeco Insurance Company of America also appealed, essentially asserting all of the above alleged errors, and additionally claiming that the trial court erred in denying their third party demand against DOTD.

When DOTD first began the improvement project involved they acquired the necessary right-of-ways, including acquisition of deeds from C. M. Gray, Gerald W. Mooney and Glenice Mooney Woods, the record owners of the property in question. Subsequently the plaintiffs claimed ownership of said property through inheritance from M. G. Pearce and Laura Robinette Pearce, their parents, and/or through prescriptive title. The trial judge was convinced the evidence established that the plaintiffs were in fact the owners of the property. They and their ancestors had possessed the property for approximately 50 years. The bounds of their possession were well defined by a fence. Our jurisprudence is well settled that questions of fact are generally left to the trier of fact, and their findings should not be disturbed unless they are clearly wrong. Canter v. Koehring Co., 283 So.2d 716 (La.1973); Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). We find no manifest error.

Defendant DOTD asserts that the plaintiffs should be estopped from asserting tortious appropriations inasmuch as they failed to minimize damages by seeking in-junctive relief, citing in support of their proposition: Gray v. State of Louisiana, through the Department of Highways, 250 La. 1045, 202 So.2d 24 (1967). In Gray the court stated, in regard to plaintiffs’ inaction:

“.. . Their failure to act brings the case within the orbit of the equitable principle, long established in matters involving private corporations invested with powers of condemnation, that an owner of land who is aware that his property is being appropriated for a pub-lie use and stands aside taking no action to prevent the appropriation, cannot thereafter treat the appropriation as tor-tious. For in such cases he must be held to have impliedly consented to the appropriation and therefore recovery is restricted to just compensation for the property taken...” (Citations omitted)

However, we find the appellant’s reliance on Gray to be misplaced. Plaintiffs, through their attorney contacted DOTD by letter dated April 6, 1978, informing the department of their claim to the property and the absence of any right-of-way on behalf of DOTD or any other party. Once construction crews arrived at plaintiff’s property on or about May 18, 1978 and began to clear the purported right-of-way, Malcolm Keith Pearce approached employees of L. J. Earnest, Inc. and advised them of their lack of authority to perform work on the property. The employees retreated and contacted DOTD Project Engineer W. W. Marsehand who directed them to proceed with work as required by the contract despite Pearce’s unequivocable protest. Plaintiffs’ suit followed shortly thereafter. The inapplicability of Gray thus becomes clear: plaintiffs’ protest was clear and their resort to legal recourse was reasonably timely. Furthermore, in Gray the state had obtained an illegal ex parte order attempting to expropriate, whereas in the present case the state proceeded with no color of authority, notwithstanding notice of the probable invalidity of their actions. It is a universal rule of law that a grant of the power of expropriation is one of the attributes of sovereignty most fraught with the possibility of abuse and injustice. Accordingly, authority conferring such power, Gray included, must be strictly construed. Under these circumstances, the defendants are responsible for their tortious conduct and must respond in damages just as an ordinary person would do.

Generally the method of estimating the value of a shade or ornamental tree wrongfully removed is to compare the value of the surrounding property before and after removal; however, the trial court has discretion to apply a different measure of damages in cases involving willful and wanton disregard for the interests of the property owner. Daniel v. Department of Transportation and Development, 396 So.2d 967 (La.App. 1st Cir. 1981) writ denied, 400 So.2d 1385. In the latter instance, the proper factors to be considered include the size, species, condition and location of the tree. One of the major elements of damage claimed by plaintiffs was the destruction of a large red oak tree measuring approximately 31" to 36" in diameter. When subcontractors of L. J. Earnest, Inc., employed to rebuild the fences adjoining the highway, reached the point of the aforesaid tree, they consulted with W. W. Welch who informed them to stick to the plan, again, in disregard of plaintiffs’ protest. Numerous other trees were likewise destroyed in wanton disregard of the interests of the property owner. The record discloses that many of them were mature, majestic trees, incapable of valuation or replacement. All had aesthetic value; some screened out the highway. The trial court has great discretion in rendering an award that will do substantial justice, and this court will not disturb such an award in the absence of a clear abuse of discretion. Daniel v. Department of Transportation and Development, supra; Curole v. Acosta, 303 So.2d 530 (La.App. 1st Cir. 1974); Turner v. Southern Excavation, Inc., 322 So.2d 326 (La.App. 2nd Cir. 1975). The trial judge did not abuse his discretion.

Similarly, the trial court’s finding that the property damage “was particularly distressing to Laverne Pearce Hatcher, and Malcolm Keith Pearce, who lived there” is entirely justified and his award of $2,500 to each was well within the discretionary range allowed by a trial court. Accord: Daniel v. Department of Transportation and Development, supra.

The trial judge apportioned the loss between defendants by casting them liable in solido. All defendants have appealed this ruling.

Safeco obligated itself under the terms of the contractor’s bond, annexed to the state project contract, to “indemnify and safe harmless said Department of Transportation and Development against any loss or damage of whatever kind and character arising or occasioned by deeds of negligence of said principle, his agents, servants and employees, in the prosecution of the work. . . ”. DOTD argues that this indemnity agreement requires the contractor to indemnify DOTD for its own acts of negligence. Conversely, Safeco argues that it is the policy of the state that a contractor shall not be legally responsible for damages which occur as a result of performance of a contract performed in accordance with the plans and specifications, citing in support thereof LSA-R.S. 9:2771, which provides:

“No contractor shall be liable for destruction or deterioration of or defects in any work constructed, or under construction, by him if he constructed, or is constructing, the work according to plans or specifications furnished to him which he did not make or cause to be made and if the destruction, deterioration or defect was due to any fault or insufficiency of the plans or specifications. This provision shall apply regardless of whether the destruction, deterioration or defect occurs or becomes evident prior to or after delivery of the work to the owner or prior to or after acceptance of the work by the owner. The provisions of this Section shall not be subject to waiver by the contractor.”

As we find merit in Safeco’s argument, we reverse in this regard. The failure to obtain a right-of-way from plaintiffs, and resultant trespass, is a defect in constructing the improvement such that the contractor should not be liable for work done in accordance with the plan. Such a result is in accord with jurisprudence interpreting indemnity clauses. In the recent case of Bantin v. State of Louisiana, 411 So.2d 65 (La.App. 3rd Cir. 1982), this court observed that:

“A contract of indemnity whereby the indemnitee is indemnified against the consequences of his own negligence is strictly construed, and such a contract will not be construed to indemnify an indemnitee against losses resulting to him through his own negligent act, unless such an intention was expressed in unequivocal terms.”
[Citing Polozola v. Garlock, Inc., 343 So.2d 1000, 1003 (La.1977) ]

Strictly construing the above indemnity agreement, it becomes clear that the contract terms are insufficient to justify the trial judge’s judgment against Safeco. Accordingly, we reverse in this respect and render DOTD alone liable for all sums awarded.

For the reasons assigned the judgment appealed from is amended to cast the Department of Transportation and Development liable for all sums awarded. In all other respects the judgment is affirmed.

AFFIRMED AS AMENDED.

       Malcolm Keith Pearce died pending proceedings and his spouse and children were substituted as parties in his place.


text:
    MEDICAL & CORPORATE FINANCIAL, INC., et al v. J. Roland ADAMS.
    No. 53114.
    Supreme Court of Mississippi.
    March 24, 1982.
    Thomas, Price, Alston, Jones & Davis, Alex A. Alston, Jr., James T. McCafferty, III, Jackson, for appellants.
    Watkins & Eager, Thomas C. Gerity, Jackson, for appellee.
   Appeal from Circuit Court, Hinds County; Charles T. Barber, Judge.

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

AFFIRMED.


text:
    Ronald Ray LAWRENCE v. Marion Alice LAWRENCE and Hinds County Department of Public Welfare.
    No. 53109.
    Supreme Court of Mississippi.
    March 24, 1982.
    Harry L. Kelley, Jackson, for appellant.
    T. Michael Kuykendall, Steven Lawrence, Jackson, for appellees.
   Appeal from Chancery Court, Hinds County; Paul G. Alexander, Chancellor.

Before WALKER, ROY NOBLE LEE and DAN M. LEE, JJ.

AFFIRMED.

PATTERSON, C. J., SMITH and SUGG, P. JJ., and BROOM, BOWLING and HAWKINS, JJ., concur.


author: DAN M. LEE, Justice,

text:
    Harry L. DORSEY v. John Henry JOHNSON.
    No. 53090.
    Supreme Court of Mississippi.
    March 31, 1982.
    Rehearing Denied April 21, 1982.
    Walls, Buck & Irving, Ltd., Robert E. Buck, Greenville, for appellant.

      G. Kenner Ellis, Nathan P. Adams, Jr., Greenville, for appellee.
    Before SMITH, WALKER and DAN M. LEE, JJ.
   DAN M. LEE, Justice,

for the Court:

This is an appeal from the Circuit Court of Washington County wherein John Henry Johnson, plaintiff/appellee, brought suit against Harry L. Dorsey, a chiropractor, defendant/appellant, for negligent treatment which ultimately resulted in the amputation of Johnson’s left leg above the knee. The trial court found Dorsey was negligent as a matter of law because he purported to practice medicine without being a physician. The jury was peremptorily instructed on the issue and thereafter returned a verdict in favor of Johnson. Damages were assessed at $40,000 actual damages and $10,000 punitive damages. We reverse.

John Henry Johnson, a 71-year-old man, was treated for hypertension, diabetes, degenerative joint disease (arthritis), gastritis, mild congestive heart failure and arterio-sclerotic heart disease subsequent to 1974 at the Hollandale Clinic. Johnson had worked most of his life as a floor finisher. Johnson, however, described his health as good prior to 1978 except for his arthritis and poor circulation.

Harry L. Dorsey, a chiropractor, began treating Johnson in November of 1974. Johnson began seeing Dr. Dorsey on a regular basis in March of 1978 for treatment of his arthritis. On April 14, 1980, Johnson went to Dr. Dorsey’s for his scheduled appointment. Dr. Dorsey asserted he washed Johnson’s left foot before placing him on a medcolator due to the smell emanating from Johnson’s foot and his past habits of using lighter fluid, kerosene, coal oil and mud poultices on his foot. Johnson testified the machine used on his foot was a shortwave diathermy, which applies deep heat. Dr. Dorsey and his assistant denied this machine was used on Johnson.

After Johnson was placed on the machine, Dr. Dorsey left the room but returned shortly thereafter when Johnson began screaming that the machine was burning him. Dr. Dorsey denied that the machine burned Johnson’s foot; however, he sold Johnson a tube of ointment to treat the burn.

That evening Johnson’s foot began to turn dark. His foot was examined by Dr. Hill on April 17, 1978, and by Dr. Estess on May 19, 1978. Dr. Estess referred Johnson to Dr. Brooks. Upon Dr. Brooks’ recommendation, Johnson’s left leg was amputated above the knee. Although Dr. Brooks opined that Johnson’s poor circulation was the underlying problem, he asserted the burn or injury ultimately terminated in the loss of the leg.

The trial court peremptorily instructed the jury that Dr. Dorsey was negligent in his treatment of Johnson as a matter of law. The jury awarded Johnson $40,000 in actual damages and $10,000 in punitive damages for loss of his leg.

Did the trial court err in peremptorily instructing the jury as to appellant’s negligence?

The proof in the case at bar established that appellee was treated by the use of one of two machines on April 14, 1978. Appel-lee identified the machine as a shortwave diathermy. According to appellant, appel-lee was treated with a medcolator, a non-heat-producing device, on April 14, 1978. The evidence as to which machine was used in appellee’s treatment was in conflict and should have been left for resolution by the jury.

In White’s Lumber & Supply Co. v. Collins, 186 Miss. 661, 192 So. 312 (1939), we held:

Questions of fact, and matters of dispute in the evidence, are for the jury, . . . (186 Miss, at 683, 192 So. at 313)

Had the present case been submitted to the jury, the jury could well have chosen to accept the evidence of appellant and reject the evidence of appellee as to which machine was used on the day the injury occurred. Since there was a sharp conflict as to which machine was used, the granting of the peremptory instruction was error. The case is therefore reversed and remanded for a new trial.

REVERSED AND REMANDED.

PATTERSON, C. J., SMITH and SUGG, P. JJ., and WALKER, BROOM, ROY NOBLE LEE, BOWLING and HAWKINS, JJ., concur.


author: HAWKINS, Justice,

text:
    Mary Lawrence CAMPBELL, Individually and as Representative of The Heirs and as Administratrix of Estate of Juanita Lawrence Epps v. C & H TRANSPORTATION COMPANY, INC., Darrell Foxworth and Katherine Mitchell Cash.
    No. 53374.
    Supreme Court of Mississippi.
    March 31, 1982.
    C. R. McRae, Henry P. Pate, Pascagoula, for appellant.
    Bryan, Nelson, Allen, Schroeder & Back-strom, James W. Backstrom, Pascagoula, for appellees.
    Before PATTERSON, C. J., and ROY NOBLE LEE and HAWKINS, JJ.
   HAWKINS, Justice,

for the Court.

Mary Lawrence Campbell, individually and as representative of the heirs and as administratrix of estate of Juanita Lawrence Epps, filed suit in the Circuit Court of Jackson County under our wrongful death statute against the defendant C & H Transportation Company, Inc., Darrell Foxworth and Katherine Mitchell Cash for the death of her sister Juanita Lawrence Epps. A motion was made by the defendants to dismiss the cause with prejudice, which was sustained by the circuit judge, and from which Mrs. Campbell appeals. We affirm.

The only issue we address on this appeal is the effect of the final judgment of a United States District Court of Illinois finding in favor of James L. Epps, the husband of the decedent, who had likewise prosecuted with success a wrongful death action against the defendant C & H Transportation Company, Inc., and which judgment was subsequently satisfied.

Juanita Lawrence Epps was killed in a motor vehicle accident which occurred October 31, 1979, on Highway 90 in Jackson County, when the automobile she was driving was struck by a truck-trailer being driven by Katherine Mitchell Cash. The truck was owned by Darrell Foxworth and was leased to C & H Transportation Company, Inc.

She was a resident of the State of Illinois, in the City of East St. Louis, St. Clair County. She was married to James L. Epps and had no children.

Her sister, Mary Lawrence Campbell, qualified as administratrix of her estate on December 11, 1979, in the Chancery Court of Jackson County, and pursuant to chancery court authority filed suit under our wrongful death statute, Miss.Code Ann. § 11 — 7—13 (Supp.1977), in the Circuit Court of Jackson County that same day.

The suit was filed by Mrs. Campbell not only as administratrix, but on behalf of all interested parties under the statute. The named defendants were C & H Transportation Company, Inc., Darrell Foxworth and Katherine Mitchell Cash.

Epps qualified as administrator of his wife’s estate on November 21, 1979, in the Circuit Court of St. Clair County, Illinois. On January 25, 1980, he filed suit in the United States District Court of Southern Illinois against C & H Transportation Company, Inc., as administrator and sole heir of his wife. On October 14, 1980, there was a bench trial before the United States District Judge on the merits of that case, resulting in a judgment rendered by that court October 17, 1980, in the amount of 1300,000 in favor of Epps against the defendant C & H Transportation Company. On October 9, 1980, Epps executed a complete and unlimited release to C & H Transportation Company, Inc., Cash and Fox-worth for the recited consideration of $300,-000. This release was notarized October 29, 1980. Pursuant to authority for the Circuit Court of St. Clair County, Illinois, Epps satisfied this judgment October 29, 1980.

Various proceedings were had in the Chancery Court of Jackson County pertaining to the estate proceedings pending there — unnecessary to detail here — but Epps was appointed co-administrator of his wife’s estate with the sister, Mrs. Campbell.

Also, by order of the Circuit Court of Jackson County on August 1, 1980, Epps was permitted to intervene as a party plaintiff with Mrs. Campbell in the action pending in that court.

On December 1,1980, Mrs. Campbell took a voluntary nonsuit as to the defendant C & H Transportation Company in the Jackson County Circuit Court action.

On March 7, 1981, the remaining defendants filed a motion to dismiss with prejudice the cause pending in the Circuit Court of Jackson County. This motion was sustained and a motion to reconsider was overruled June 8, 1981. Epps appeared and testified on this motion.

There was no fraud or collusion charged. Epps’ authority to proceed and settle this case as he did, has been challenged, however.

Epps, the sole party in interest under § 11-7-13, our wrongful death statute, sued and recovered judgment for all damages resulting from his wife’s death against all of the parties jointly and severally liable in a court of competent jurisdiction. The judgment was paid in full. The cause of action against all parties who were jointly and severally liable for Mrs. Epps death was thereby terminated. Medley v. Webb, 288 So.2d 846 (Miss.1974); Granquist v. Crystal Springs Lumber Co., 190 Miss. 572, 1 So.2d 216 (1941).

The circuit judge properly sustained the motion to dismiss with prejudice and the judgment of the circuit court dismissing the cause with prejudice is affirmed.

AFFIRMED.

PATTERSON, C. J., SMITH and SUGG, P. JJ., and WALKER, BROOM, ROY NOBLE LEE, BOWLING and DAN M. LEE, JJ., concur.


author: SMITH, Presiding Justice,

text:
    George W. DEAS, d/b/a Deas Tire Company v. Willie Edward ANDREWS.
    No. 53108.
    Supreme Court of Mississippi.
    March 31, 1982.
    Rehearing Denied April 21, 1982.
    On Motion Under Rule 19 to Correct Judgment May 26, 1982.

      White & Morse, Stanford E. Morse, Jr., Gulfport, for appellant.
    Holleman & Krogstad, Boyce Holleman, Jim W. Rose, Gulfport (Blackwell, Owen & Galloway, Ben T. Galloway, Gulfport, On Motion Under Rule 19 to Correct Judgment), for appellee.
    Before SMITH, ROY NOBLE LEE and BOWLING, JJ.
   SMITH, Presiding Justice,

for the Court:

Willie E. Andrews brought suit in the Circuit Court of Harrison County against George W. Deas, d/b/a Deas Tire Company, demanding damages for personal injuries alleged to have been sustained when he was backed into by Deas’ truck. Following a trial, the jury returned a verdict for Andrews against Deas in the sum of $202,000. From the judgment entered pursuant thereto, Deas has prosecuted this appeal.

Andrews was a truck driver, operating eighteen wheeler tractor-trailer trucks for his employer, Gulf Coast Pre-Stress Company, earning $13,750.00 per year. Deas was under contract with Gulf Coast Pre-Stress to service the tires on its several vehicles. On November 11, 1977, Deas’ service truck was upon the premises of Gulf Coast Pre-Stress in the course of providing this service under the contract. Andrews’ boss, who was standing somewhere behind the Deas’ truck, called to Andrews and Andrews walked over to him. At this time, the Deas truck, without warning, began backing and its corrugated steel bumper struck Andrews in the back of his leg beneath his left knee (on the upper part of his calf), causing Andrews’ leg to buckle and him to “sit down” on or against the rear part of the backing truck in such a manner that the bumper struck the back of Andrews’ left leg above the knee (on the lower part of his thigh).

On the date of the above occurrence, Andrews was fifty-seven years old and suffered from diabetes for which he was under treatment by diet and medication. There was also testimony that prior to the injuries sustained when he was hit by the Deas’ truck, Andrews also suffered “moderate to severe” atherosclerosis in both legs, and diseased arterioles, a condition which was related to Andrews’ habit of heavy smoking and to his diabetic condition. Andrews testified that following his injury, although he experienced considerable pain (which he compared to “a fire” going through his leg), he did not immediately consult a doctor. During this period his wife provided conservative treatment with ointment and massage, and he continued to work, making a number of trips for his employer. From November 11 to December 30, Andrews’ condition continued to worsen. He developed a limp in his left leg and there was testimony that his left foot became cold to the touch. It appears that between the happening of the incident in which Andrews was injured and his first consultation with his doctor, on December 30 Andrews, although he suffered pain and some disability, did not consider that his injury portended serious consequences. But Andrews’ condition reached a point where he found it necessary to consult his family physician, Doctor Barkley, a Gulf Coast surgeon, and he did so on December 30. Andrews’ examination by Doctor Barkley revealed a “cold” left foot and reduced pulse in Andrews’ lower leg and suggested to the doctor that Andrews should return for further examination and tests by his associate, Doctor Sproles. When Doctor Sproles examined Andrews on January 4 it was apparent that, while Andrews’ right foot had good blood flow, there was an occlusion in the superficial femoral artery in his left leg, with a pulse so low that Doctor Sproles and Doctor Barkley considered that immediate surgery was required to restore blood flow to Andrews’ left foot and the distal portion of his left leg.

On January 15 Doctors Sproles and Barkley operated on Andrews’ left leg. Incisions were made in the femoral artery in the groin area and in the popliteal artery just below the kneefold, connecting the ends with a dacron tube which bypassed the occlusion. However, the bypass proved ineffective and blood was not reaching the left foot and lower left leg, so that, in the opinion of the doctors, gangrene impended. Increased and more severe pain was now suffered by Andrews requiring large doses of pain reliever. The graft itself occluded and pain had become worse and unremitting and Andrews requested that his left leg be amputated. In the opinion of the surgeons at this point it was impossible to save the left leg because gangrene was imminent and would threaten Andrews’ life. On February 4 Andrews left leg was amputated. Following the removal of Andrews’ leg, he remained in the hospital for a month. He continued to see Doctor Sproles after leaving the hospital. He continued to treat the healing stump and eventually prescribed a “suction socket” artificial leg. This was fitted but gave Andrews considerable discomfort. There is testimony about Andrews’ difficulty in this area in learning to use the artificial leg and coping with the phantom pains from the nonexistent foot and leg.

Notwithstanding all of the above, during his recuperation Andrews declared that he would be able to return to driving large trucks and that he would do so as soon as he could operate his artificial leg properly. This, however, proved impossible.

Andrews’ case was made out by his own testimony and that of his wife, and by the testimony of Doctors Sproles and Barkley. The circumstances relating to Andrews' injury by the backing truck was established by Andrews’ testimony and that of Bill Brown and Mel Cooper. Andrews and his wife testified as to the progression of the injury and Doctors Sproles and Barkley as to the cause and medical aspects of the femoral artery occlusion.

There seems to be no real dispute as to the manner in which Andrews was injured. The real issue in the case relates to whether the trauma which resulted when the Deas’ truck had been backed into him caused or contributed to the occlusion of the femoral artery in Andrews’ left leg and consequent loss of his leg, or whether, as contended by Deas, the occlusion and its consequences resulted solely in Andrews’ existing diabetic condition and the condition of his arteries at the time. This issue was addressed by the testimony of eight medical experts, four testifying on each side.

No question is raised on appeal as to the qualifications of any of the expert medical witnesses.

Andrews offered the testimony of Doctors Sproles and Barkley. Andrews had been under Doctor Barkley’s care on several occasions in 1976-1977, including treatment and surgery in connection with a perianal abscess and gallbladder. On December 30, 1977 (following the incident with the Deas’ truck on November 11, 1977), when Andrews saw Doctor Barkley, he was complaining of nausea and pains in the calf of his left leg. Andrews gave a history as having been hit by a truck some three months before. Doctor Barkley could discover no pulse in the left foot and ankle and asked Doctor Sproles to perform a doplar examination to determine the flow of blood in the left leg. Doctor Sproles placed Andrews in the hospital and performed some angiograms (x-rays made with a contrasting dye injected into the aorta). These disclosed an occlusion in the superficial femoral artery in the left leg which completely cut off the blood flow into that artery. He found that because of this occlusion, the collaterals or smaller arteries, through which some blood will flow when a large artery becomes blocked, had been brought into use but that very little blood was reaching the lower leg and foot, not enough in his opinion, to keep the leg and foot alive. It was Doctor Barkley’s opinion that the occlusion was the result of the trauma incurred by Andrews when he had been hit by the Deas’ truck. An operation was indicated and performed for the purpose of inserting a bypass of the occlusion in order to permit blood to reach the leg and foot.

The bypass was surgically implanted but failed to provide a sufficient amount of blood to reach the lower portions of the leg and foot. The tissues of the foot began to “die” and the leg began to take on a bluish color. Doctor Barkley stated that resulting pain was extreme and unremitting and that in order to prevent gangrene it became necessary to remove Andrews’ left leg. Doctor Barkley described Andrews’ condition as due to a traumatic occlusion which had resulted from a blow to his leg and stated that this view was supported by the fact that symptoms had begun to manifest themselves almost immediately after the incident with the Deas’ truck.

Doctor Sproles, who made the doplar examination of Andrews, reviewed Andrews’ symptoms and complaints and said that occlusion of the femoral artery of the left lower leg was indicated. He testified that reconstruction of the artery was necessary, describing the surgical procedure. He described the operation and the implantation of the bypass, but stated that the operation was not successful because the dacron tube implanted for the purpose of bypassing the occlusion became clotted and the leg showed signs of impending gangrene. He testified regarding the necessity for the amputation of Andrews’ leg and the difficulties and procedures which followed. Finally, Doctor Sproles stated that it was his opinion that the occlusion of the artery was caused by the blow of the truck on Andrews’ leg which had brought about the acute condition. Doctor Sproles supplemented his testimony by stating that on the day before the trial he had examined Andrews’ right leg and found that he was having no problems with it and blood pressure in the right leg was good, the color was good, and that there was no significant obstruction of blood flow in the right leg. It was his opinion that this supported his view that Andrews’ traumatic injury had brought about the occlusion which had resulted in the loss of his left leg and that the occlusion and consequent loss of the leg had not been due to Andrews’ chronic condition.

Deas countered by offering the testimony of four doctors, Doctor Justice, an internist; Doctor Hay good, a vascular surgeon; Doctor Wilcox, whose field was cardiopulmonary vascular disease and Doctor Rosen-blatt, an internist and cardiologist.

In response to hypothetical questions, each of these doctors testified that, in his opinion, “the trauma did not cause or contribute to the thrombosis of the left superficial artery.” Each doctor gave it as his opinion that atherosclerosis had brought about the necessity for the amputation of Andrews’ leg. It was their view that the trauma had neither caused nor contributed to the necessity for the amputation, saying the fact that, after sustaining the traumatic injury, Andrews continued to work and to drive trucks for forty-seven days; it being each doctor’s opinion that, if the traumatic injury had been severe enough to cause the occlusion, the attendant pain would have made this activity by Andrews impossible.

Although Doctor Justice testified that the accident did not contribute to the occlusion on direct examination, he conceded on cross-examination that trauma could cause an occlusion in a diseased artery but not, in his opinion, in the location at which the occlusion had occurred in Andrews’ leg. It was his opinion that the occlusion in Andrews’ leg was not an acute one.

Doctor Rosenblatt, an internist and cardiologist, in response to a hypothetical question, said that it was his opinion that there was no causal connection between the trauma and the occlusion of the left femoral artery. Doctor Rosenblatt emphasized Andrews’ condition as a diabetic, overweight, heavy smoker with a history of high blood pressure and said that in his opinion all of this taken together with advanced atherosclerosis placed Andrews in a category where the occlusion would have occurred in any event. He agreed with Doctor Justice that if the trauma had caused the occlusion Andrews would not have been able to function for the next few weeks in connection with his job because the attendant pain would have been intolerable.

Doctor Haygood, answering a hypothetical question said that, after reviewing the records, angiograms and listening to the statements contained in the hypothetical question propounded to him it was his opinion that the “injury caused by the truck did not have anything to do with the occlusion of the vessel.” It was his opinion that the occlusion was a consequence of Andrews’ atherosclerosis and heavy smoking. Doctor Haygood’s testimony approximated that of Doctors Rosenblatt and Justice, who had preceded him.

Doctor Wilcox, basing his opinion upon facts stated in a hypothetical question addressed to him and upon records which were shown him, said his opinion was that, because of the degree of atherosclerosis present in Andrews’ blood vessels and particularly because of the stage that this disease had reached in Andrews’ left iliac artery and the superficial femoral artery, this condition had brought about and had been the cause of the occlusion. It was his belief that the trauma appeared to have been minor and probably did not contribute to the occlusion. Doctor Wilcox went further and said that his studies of the records had convinced him that the disease or lack of circulation had not resulted from any trauma Andrews had received on November 11, but from a chronic occlusion, an ailment common in the fifty year age group. He added that Andrews’ excessive smoking, hypertension and diabetes were significant factors in the formation of the occlusion although the diabetes seemed to have been under reasonably good control.

In rebuttal Andrews called two other doctors, Doctor Thomas L. Graves, an internist, and Lt. Col. Richard Toon, a surgeon. Neither of these doctors had treated Andrews. In response to a hypothetical question propounded to Doctor Graves by Andrews’ counsel, Doctor Graves stated that in his opinion the impact of the truck upon Andrews’ left leg had greatly contributed to the occlusion and subsequent loss of the leg. He said that only a minor trauma is necessary to bring about the occlusion where atherosclerosis is present. He explained that upon the interior lining of the blood vessels in cases of atherosclerosis, plaques form which can tear during trauma allowing atherosclerotic occlusion to form. He said that a few days or weeks after trauma has brought about this condition, it chronically progresses and the occlusion worsens, causing claudication, and finally rest pain, which signifies a hundred percent occlusion of the artery. It was his opinion that Andrews’ case was one which involved such a situation, saying, that had it been acute, Andrews would have exhibited more symptoms initially. He testified that the trauma was the stimulus or cause of an intimal tear which ultimately resulted in a total occlusion of the femoral artery.

Doctor Toon, also testifying in response to a hypothetical question and basing his opinion on the facts stated in the question and upon the records submitted to him, was of the opinion that the trauma to Andrews’ leg was the probable cause of the occlusion of the left superficial artery. In other respects Doctor Toon’s testimony tended to support the views of Doctor Wilcox.

On appeal Deas has assigned several grounds for reversal.

Deas' first contention is that the trial court committed prejudicial error in allowing Andrews to call in rebuttal two doctors, who had not treated Andrews, and who were permitted to give their expert opinions, based upon a hypothetical question and medical records in evidence which were submitted to them.

The expert medical testimony offered by Andrews upon presentation of his case in chief consisted of the testimony of Doctors Sproles and Barkley, both of whom had treated Andrews from the beginning and who had continued to be his doctors throughout the surgery and afterward.

As opposed to the evidence given by these two doctors, Deas offered the expert testimony of four doctors, none of whom had treated Andrews and who are referred to in the briefs as “non-treating doctors.” The opinions of each of these four doctors as to the cause of the occlusion and consequent loss of his left leg by Andrews was in direct contradiction of the conclusions on those subjects which had been given by Doctors Barkley and Sproles.

When the defense had rested and closed, Andrews called in rebuttal to this expert testimony of the four “non-treating” doctors which had been submitted by Deas, two “non-treating” doctors. These doctors, basing their opinions upon facts stated in a hypothetical question and records in evidence, drew from these facts and such records a conclusion which contradicted the expert evidence given by Deas four “non-treating” doctors. It is argued by Deas on appeal that permitting these two “non-treating” doctors to be called in rebuttal by Andrews, rather than as part of his case in chief, was error and that he was prejudiced thereby. In Winterton v. Illinois Central Railroad Co., 73 Miss. 831, 20 So. 157 (1896), this Court stated the rule:

The order of judicial investigation, including the time and manner of introducing evidence, is, and of necessity must be, committed to the sound discretion of the trial judge; and appellate courts should not interfere to reverse the exercise of this discretion by a trial court unless such exercise appears to have been had arbitrarily, capriciously, or unjustly. Was the exercise of the discretion in this case arbitrary or unjust? (Emphasis added). (73 Miss, at 836, 20 So. at 158).

While Winterton is an old case it does not seem to have been overruled and the rule thus stated still appears to be sound. There is no indication in the record that the introduction by Andrews of the expert testimony of two “non-treating” doctors in rebuttal, under the circumstances of the case, rather than as part of his case in chief, was prejudicial or requires reversal. Nor do we think the trial judge in permitting if acted arbitrarily or improperly or abused his judicial discretion. We are not persuaded that the order of the introduction of this evidence resulted in such prejudice to Deas as to require reversal and find no merit in this assignment.

Deas next assigns as grounds for reversal that he was denied the right to offer evidence in surrebuttal.

It appears that Deas wished to “reserve” Doctor Wilcox to testify as a witness in surrebuttal. The trial court declined to permit this and Doctor Wilcox, with the three other doctors who testified for Deas, testified on the presentation of the defendant’s case in chief. It is argued by appellant that permitting Andrews to “hold back” two “non-treating” doctors for rebuttal was unfair, particularly Deas argues, since Deas had not been permitted to reserve the testimony of Doctor Wilcox for surrebuttal. Dr. Wilcox’s testimony was duly given at length on presentation of the defense in chief and was heard by the jury. After Doctor Graves and Lt. Col. Toon testified, Deas did not enter into the record the particular testimony of either Doctors Graves or Toon which it desired to rebut by using Doctor Wilcox on surrebuttal. All of the testimony by the “non-treating” doctors, both for plaintiff Andrews and defendant Deas consisted of the expression of expert opinions arrived at upon facts stated in hypothetical questions and in evidence and the opinion entertained by the witness based thereon. All of this testimony went to the jury notwithstanding that complaint was made in the trial court by Deas in not being permitted to reserve Doctor Wilcox for surrebuttal. It has not been demonstrated that the order in which this testimony was given prejudiced the defense. If it was desired to rebut on surrebuttal any new fact or facet of the testimony of the two “non-treating” doctors who testified on rebuttal for Andrews, Doctor Wilcox might have been recalled for that specific purpose on surrebuttal. This was not done. We are unable to say that the trial judge abused his discretion in his rulings in connection with these matters or that prejudice to Deas resulted therefrom.

The third assignment for reversal is to the effect that the trial court erred in refusing to grant defendant’s “proximate cause” instruction.

Defendant’s instruction No. 2, which the trial court declined to grant was as follows:

The court instructs the jury that the “proximate cause” of an injury is that cause, which in natural and continuous sequence, unbroken by any efficient intervening cause, produces the injury, and without which the results would not have occurred.

Defendant's instruction No. 3, which the court declined to grant was as follows:

The court instructs the jury that in order to be a proximate cause, the negligence of the defendant must be a substantial factor in producing plaintiff’s injury. If the plaintiff would have been injured even if the defendant had not been negligent, the defendant’s negligence is not a substantial factor and not a proximate cause.

Andrews argues that the use in defendant’s instruction No. 2 “unbroken by any efficient intervening cause,” would be misleading to the jury which might be caused to assume that there was a dispute as to the cause of the accident. It is suggested by appellee that an instruction to the jury that if it should find that Andrews’ misfortune with respect to the leg and its consequent loss were due not to the traumatic injury but solely to a preexisting condition or disease, such an instruction might have been proper and, in fact, Deas’ instruction No. 4 covers that contingency. There appears to be no dispute that the traumatic injury to Andrews resulted from the negligent operation of Deas’ employee of the Deas’ truck in striking Andrews. We agree that defendant’s instruction No. 2 might be proper in cases in which it might be applied to facts in evidence. It was improper in this case in providing that the jury might find for the defendant if they found that Andrews’ injury was caused by “any efficient intervening cause,” which produced the injury, “without which the results would not have occurred.”

Defendant’s instruction No. 3 is clearly not applicable to the facts in this case. There is no testimony that Andrews sustained any injury except that received when he was run into by the Deas’ truck. Andrews’ physical condition at the time of his injury was not “an efficient intervening cause.” There is no dispute that Andrews’ traumatic injury was the result of negligence on the part of Deas’ employee, acting in the course of his employment.

Both defendant’s instructions 2 and 3 are abstract in nature and are not predicated upon facts in evidence, although the instructions are said to have been taken from Mississippi Model Jury Instructions they were not made applicable to the facts and circumstances in the instant case.

The trial court granted defendant’s instruction No. 4 as follows:

If you find from a preponderance of the evidence in this case that plaintiff’s injury was due directly and exclusively to natural causes, without human intervention and which could not have been prevented by the exercise of reasonable care and foresight, the occurrence is due to a pre-existing condition for which the defendant is not liable.

Also granted was jury instruction No. P-6 which was as follows:

If your verdict is for the plaintiff, then the court instructs you that even though you find that he had pre-existing atherosclerosis in his left superficial femoral artery at the time the defendant’s truck struck his left leg, if you further find by a preponderance of the evidence that the impact of the truck aggravated or made worse this pre-existing condition and either directly caused or contributed to the occlusion or blockage of that artery leading to the amputation of his left leg, then you must award the plaintiff a reasonable sum for all damages, if any, he has proven by a preponderance of the evidence to have suffered and will suffer as a result of that amputation.

Appellee points out that the above instructions clearly and correctly covered the circumstances in evidence in this case and that in negligently injuring Andrews that appellant “took him as he found him” and is responsible for all injuries which ensued in an unbroken sequence. See Tri-State Transit Co. v. Martin, 181 Miss. 388, 179 So. 349 (1938).

The fourth proposition argued by Deas is that the trial court erred in declining to grant his requested instruction No. 6. Instruction No. 6 was as follows:

The court instructs the jury that in computing the plaintiff’s damages, if any, proximately caused by the defendant’s negligence, if any, you are not to compensate the plaintiff for pre-existing physical conditions, that is physical conditions which the plaintiff suffered from prior to the accident, unless the pre-existing physical condition was aggravated as a proximate result of the defendant’s negligence, if any. Even if you find that the plaintiff suffered from a pre-existing physical condition which was aggravated as a proximate result of the defendant’s negligence, if any, you should not compensate the plaintiff for damages that would have existed from his previous condition without the aggravation; and where a pre-existing physical condition is bound to worsen, an appropriate discount should be made for the damages that would have been suffered even in the absence of the defendant’s negligence, if any.

There appears to be no question that the backing of the Deas’ truck into Andrews, which proximately caused the traumatic injury to Andrews’ left leg, was negligent. Instruction No. 6, however, appears to leave open the question referring to defendant’s “negligence, if any,” and in referring to Andrews’ damages, also qualifies that aspect of the case by saying “if any”. The'instruetion proceeds in its latter part to relate to “damages” that “would have existed” without the traumatic injury which occurred when Andrews was hit by the backing truck, as to which the jury is left to speculation and conjecture. The instruction contains no guide for distinguishing or apportioning “damages that would have existed from his previous condition without the aggravation,” nor is there an evidential basis for measuring the extent that Andrews’ preexisting condition “is bound to worsen”. The instruction affords the jury no guide in applying such an assumption. Nor is there any guide furnished the jury as to what would be an “appropriate discount” for “damages that would have been suffered even in the absence of defendant’s negligence, if any.”

Deas defends the instruction saying that “. .. most doctors who testified recognized that it was possible for him to have suffered an occlusion and lost one of his legs without trauma.” (Emphasis added).

There is no evidence that the occlusion or thrombosis in Andrews’ left leg was improperly treated or that it and the loss of Andrews’ leg were the result of malpractice or negligence on the part of Andrews’ doctors.

In Garrett v. Wade, 259 So.2d 476 (Miss.1972), it is stated:

This Court has consistently held that medical testimony is not probative unless it is in the terms of probabilities and not possibilities. In Scott County Co-Operative v. Brown, 187 So.2d 321 (Miss.1966), we held that the doctor’s statement that he was of the opinion that the mental condition “could have been caused” by the accident was insufficient to justify submitting to the jury the question of causal connection between the malady and the accident.. . . (259 So.2d at 479).

Instruction No. 4, quoted above, considered with all of the other instructions, correctly and adequately stated the rule applicable to the facts of the case.

We are unable to agree that the trial court committed prejudicial error in declining to grant defendant’s instruction No. 6.

Finally, Deas argues that the $202,000 verdict is excessive.

In support of this proposition, Deas points out that Andrews’ loss of future wages was $110,000 and his medical expense was $15,211, leaving $76,789 of the verdict which must have been attributed by the jury, it is argued, to pain and suffering. The pain that Andrews has suffered and will suffer was constant and sustained and will continue. The loss of his leg effectively robs Andrews of his vocation and leaves him an incurable cripple, incapable of participating in normal activities and grossly affecting his life in all its aspects. The pain and difficulty occasioned by the necessity of wearing a false leg embraces difficulty in getting about at home, on the street and everywhere, twenty-four hours a day until death. While the verdict is large, we cannot say, on the evidence, that it is excessive, certainly not so grossly excessive as to evince bias, passion or prejudice on the part of the jury in returning it or shock the enlightened conscience. We find no reversible error in the record and the judgment appealed from must be and is affirmed.

AFFIRMED.

PATTERSON, C. J., SUGG, P. J„ and WALKER, BROOM, ROY NOBLE LEE, BOWLING, HAWKINS and DAN M. LEE, JJ., concur.

ON MOTION UNDER RULE 19 TO CORRECT JUDGMENT

On a former day, this Court affirmed the final judgment entered in this case by the Circuit Court of Harrison County and pursuant thereto the mandate of this Court issued thereon.

On April 29, 1982, George W. Deas d/b/a Deas Tire Company, appellant, filed a motion to correct this Court’s judgment with respect to the amount of damages assessed upon the said judgment of the circuit court under the provisions of Mississippi Code Annotated section 11-3-23 (1972), as amended by Section 2, Chapter 533, Laws of Mississippi 1980.

This Court, having considered said motion and the response of appellee thereto, finds that the aforesaid judgment of the Circuit Court of Harrison County was entered and filed with the clerk of said circuit court on May 2, 1980.

The Court finds that said amending statute increases the amount of damages to be assessed against an unsuccessful appellant from five percent of the amount of the judgment to fifteen percent and that said judgment of affirmance by this Court assessed fifteen percent of the amount of the judgment unsuccessfully appealed from against appellant.

The effective date of Chapter 533, Laws of 1980 was July 1, 1980 and Section 2 of Chapter 533 provides as follows:

The additional damages provided in Section 1 apply only to judgments and decrees filed with the Clerk of the Court on and after the effective date of this act.

This Court finds and adjudges that, under the said terms of amended statute, the amendment increasing the amount of damages does not, under its terms, apply to the judgment in the present case which was entered and filed with the clerk of said Circuit Court of Harrison County on May 2, 1980.

Accordingly, said motion to correct judgment is sustained and said judgment of this Court is ordered corrected to reflect an assessment of five percent damages, rather than fifteen percent damages, and it is further ordered that the mandate heretofore issued be, and is, withdrawn and that a new mandate issue forthwith reflecting said amendment of said judgment assessing damages at five percent.

SO ORDERED, THIS THE 24th DAY OP MAY, 1982.


text:
    Donald L. RUSH, Robert Graves and Donnie McDaniel v. Thomas M. HEFLIN.
    Civ. 2808.
    Court of Civil Appeals of Alabama.
    March 3, 1982.
    Mack Clayton, Alexander City, for appellants.
    No brief for appellee.
   EDWARD N. SCRUGGS, Retired Circuit Judge.

This is a workmen’s compensation case.

Briefly, the trial court ascertained that the parties were subject to the workmen’s compensation law, that the employee was injured, that he was temporarily totally disabled for a certain period of time and that he was also permanently partially disabled. The employee was awarded compensation for such and since the employers did not have in effect any policy of workmen’s compensation insurance and had not qualified as a self insurer, the awarded compensation was doubled pursuant to section 25-5-8(e) of the Code of Alabama of 1975. The employers were given credit for the amount of $1,750 as compensation previously paid by them. The employers appealed and raised three issues.

I

The employers contend that the court erred in assessing the penalty against them as is provided by section 25-5-8(e). They contend that such code section is inconsistent or conflicting to the extent that its meaning is vague and uncertain; that it is unreasonable, oppressive, inconvenient and creates a hardship; that it is penal in nature and subject to two opposing and adverse interpretations.

Said code section is, in part, as follows: Any employer required to secure the payment of compensation under this section who fails to secure compensation shall be guilty of a misdemeanor and, upon conviction thereof, shall be subject to a fine of not less than $25.00 nor more than $1,000.00. In addition thereto, any employer required to secure the payment of compensation under this section who fails to secure such compensation shall be liable for two times the amount of compensation which would have otherwise beeh payablé for injury or death to an employee....

§ 25-5-8(e), Code of Alabama 1975.

We have carefully examined each argument which was presented against the validity of that code section and do not find any of them well-founded. The reasoning contained in prior decisions is dispositive of those issues. Hester v. Ridings, 388 So.2d 1218 (Ala.Civ.App.1980); Harris v. Vaughan, 373 So.2d 1111 (Ala.Civ.App.), cert. denied, 373 So.2d 1113 (Ala.1979). These two cases do not conflict. The double award penalty provision of that code section is still mandatory. Naturally, there is some hardship upon any employer where the penalty of the double award must be assessed; however, there is no legal right to relief from a penalty which is required to be imposed by law. Dupree v. Dothard, 341 So.2d 955 (Ala.Civ.App.1977). Thus, the code section is valid and it had to be applied by the trial court in this case.

II

The trial court computed the judgment in the following manner:

$ 2,697.37 Temporary total disability for 45 weeks and 4 days
35% Permanent partial disability 2,879.59
$ 5,576.96
_x_2 Penalty assessment
$11,153.92
189.00 Allowed medical expenses
$11,342.92
-1,750.00 Allowed for compensation previously paid by defendants.
$ 9,592.92 Judgment

The appellant contends that the court erred in that regard and that the judgment should have been calculated as follows:

$ 2,697.37 Temporary total disability for 45 weeks and 4 days
2,879.59 35% Permanent partial disability to the foot
$ 5,576.96
-1,750.00 Allowance for temporary total compensation previously paid by defendants
$ 3,826.96
_x_2 Assessment of double penalty
$ 7,653.92
+ 189.00 Allowed medical expenses
7,842.92 Judgment

The code provides that any employer who is required to and fails to secure the payment of compensation “shall be liable for two times the amount of compensation which would have otherwise been payable for injury ... to an employee.” (Emphasis supplied.)

Under the emphasized portion of that statute, the employee was entitled to have the compensation first computed, then the penalty assessed thereon and the credit for the $1,750.00 payment thereafter given. The legally correct method was utilized by the trial court.

Ill

The employers contend that the attorney’s fee, as fixed by the court, exceeds 15% of the amount of compensation.

If a trial court awards an attorney’s fee for more than the statutory amount in a workmen’s compensation case, that error would be solely related to the employee and not to the employer since the employer pays no portion of such a fee but the employee must bear the whole fee out of compensation awarded. When an error applies only as to a party who does not appeal therefrom, another party cannot make any such error an issue on appeal. Housing Authority of Town of Uniontown v. Mizell, 368 So.2d 37 (Ala.Civ.App.1979). Even if the court awarded a greater attorney’s fee to counsel for the employee than the statute permits, there was no error as to his employers. It is no basis for complaint on appeal by the employers. We do not determine whether the fee, as fixed, exceeded the amount allowed by the statute, but, if such is true, it is a matter for correction between the employee and his attorney.

The trial court having not erred as to any issue raised on appeal, we affirm.

The foregoing opinion was prepared by Retired Circuit Judge EDWARD N. SCRUGGS while serving on active duty status as a judge of this court under the provisions of § 12-18-10(e) of the Code of Alabama of 1975 and this opinion is hereby adopted as that of the court.

AFFIRMED.

All the Judges concur.


author: TYSON, Judge.

text:
    Robert GIBSON v. STATE of Alabama.
    3 Div. 505.
    Court of Criminal Appeals of Alabama.
    March 23, 1982.

      Robert Gibson, pro se.
    Charles A. Graddick, Atty. Gen., and Ri-vard Melson, Asst. Atty. Gen., for appellee.
   TYSON, Judge.

Robert Gibson, an inmate at G. K. Fountain Correctional Center, filed a petition for a writ of habeas corpus on November 22, 1981 (R. 1-5). This petition was denied without a hearing on December 2, 1981 (R. 6). From this denial by the trial court of this petition, Robert Gibson, prosecutes this appeal.

In his petition for a writ of habeas corpus, appellant challenged the disciplinary board’s decision to deprive appellant of two years of “good time” for an alleged “escape” from a Decatur work release facility. Appellant insisted that the findings of the board should have been reversed because:

1. As a resident of a Community Facility he was improperly disciplined for the violation of Rule lc of the Handbook of Rules and Information For Inmates;
2. The allegations against him wore signed by an employee of Kilby Correctional Facility and not by anyone from the Decatur work release facility from which he allegedly escaped;
3. The disciplinary board was composed of Kilby officials only and was, therefore, not “fair and impartial.”
4. The only evidence against appellant was the document containing the charge against him (there was no testimony from anyone at the Decatur work release facility to verify the charge);
5. The disciplinary proceedings were not recorded, thus appellant was not furnished with a copy of same;
6. The board did not provide the appellant with nor issue a written statement as to the evidence relied upon and the reasons for its disciplinary actions;
7. The appellant lost two years of “good time” pursuant to the board’s findings, but had only accrued 130 days at the time of the disciplinary hearing; and
8. The disciplinary hearing was held five days after the “disciplinary charge” was brought against him, thus violating the 72 hour limitation of Administrative Rule 403.

I

There is nothing in the record before us about the disciplinary action against appellant and the procedures followed except for appellant’s own assertions. There is no “Notice of Disciplinary Board Hearing” form identifying the charge against the appellant. There is no summary of the disciplinary hearing itself. There is no “written statement reflecting the reasons and conclusions” upon which the disciplinary board based its findings. There is no answer by the state to appellant’s Habeas Corpus Petition, and there is no evidence of a hearing in the trial court below to develop any of the facts needed to validate the board’s actions.

Our recent decision in Washington v. State, 405 So.2d 62 (Ala.Cr.App.1981), is squarely on point with the instant appeal. In Washington we reversed the trial court’s denial of those two appellants’ petition and remanded same for an evidentiary hearing before the trial court to develop the facts necessary for determining whether or not the board’s actions were “based upon substantial evidence” or merely “arbitrary and capricious.” There, as here, the required “written statement by the factfinders [the disciplinary board] as to the evidence relied on and reasons” for the disciplinary action was missing. Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974); Williams v. Davis, 386 So.2d 415 (Ala.1980); Washington v. State, supra, and other cases therein cited.

This omission alone in Washington made it impossible to determine whether or not those appellants had been afforded “due process” of law.

In the case now before us, there is nothing in the record, except for appellant’s own petition and arguments in support thereof, to indicate that a “disciplinary hearing” was even held. The merits of appellant’s petition below and, consequently, the propriety of the trial court’s dismissal thereof cannot be properly examined on this review.

Therefore, the trial court’s denial of appellant’s petition must be set aside and this cause must be reversed and remanded to the trial court for an evidentiary hearing by the trial court to develop the facts essential for determining whether or not the board’s action was proper. Washington v. State, supra, and cases cited therein.

REVERSED AND REMANDED WITH DIRECTIONS.

All the Judges concur.