text:
    GENERAL REFRIGERATION COMPANY OF LAKE CHARLES, INC., Plaintiff-Appellee, v. STYLE HOME BUILDERS, INC., Defendant-Appellant.
    No. 7407.
    Court of Appeal of Louisiana, Third Circuit.
    Jan. 30, 1980.

      Camp, Carmouche, Palmer, Barsh & Hunter, J. A. Delafield and Skipper Drost, Lake Charles, for defendant-appellant.
    Newman & Fazzio, A. J. Fazzio, Lake Charles, for plaintiff-appellee.
    Before GUIDRY, SWIFT and LA-BORDE, JJ.
   SWIFT, Judge.

Appellee, General Refrigeration Company of Lake Charles, Inc. (General Refrigeration), an air conditioning and heating contractor, filed this suit against appellant, Style Home Builders, Inc. (Style Home), a builder of speculative and custom built homes, for $11,866.24 as the balance allegedly due on several contracts, some written and some oral, for the installation of air conditioning and heating units and electrical work in a number of homes constructed by Style Home. The latter reconvened for $130,000.00 allegedly due it for General Refrigeration’s failure to properly, and completely perform its contractual obligations, damage to professional reputation, inconvenience, humiliation, embarrassment, wrongful and malicious prosecution of civil remedies, punitive damages and attorneys fees. After a trial on the merits, the judge allowed Style Home credits or offsets on several of the jobs involved in the suit amounting to $3,192.04 and rendered a judgment in favor of General Refrigeration for the balance of the amount sued for, $8,674.20. The award contained no offset for any of the other items claimed in the reconventional demand.

In his written reasons for judgment the trial judge detailed the credits allowed Style Home and his reasons therefor. Inasmuch as the appellant has not specified any error in this regard and appellee has neither appealed nor answered the appeal, it is unnecessary for this court to consider such credits. Nevertheless, having reviewed the entire record we feel obliged to say that we find no error in the rulings as to these credits.

Except for the additional credit of $95.00 mentioned hereinafter, we also agree with the judge’s denial of the other claims asserted by appellant and adopt as our own opinion the following from his written reasons:

“A number of other credits or offsets claimed by defendant have been disallowed. Among them is the claim for the price differential between Gaffer & Sat-tler air conditioning units and Lennox units. In some instances, Gaffer & Satt-ler units were installed in the homes. In some instances, Gaffer & Sattler units were furnished when written specifications called for other brands. Plaintiff denies having ever seen the specifications relied upon by defendant, and contends that he was in compliance with his obligations in supplying the Gaffer & Sattler units. Be that as it may, defendant is not entitled to any offset or credit because it suffered no damages. In each of the instances in which defendant now claims credit for the price differential between Lennox and Gaffer & Sattler units, the homes were sold by the defendant, with no reduction in. the sale price because of the presence in the home of a Gaffer & Sattler unit instead of some other type unit. With the exception of the job known as LE-17, all of the homes were built for speculation, and all in which Gaffer & Sattler units had been installed had been sold.
Defendant also argues that in certain instances in which it had Moreno’s Air Conditioning, Inc. complete work not done by plaintiff, it is entitled to a credit of the difference between the contract price with plaintiff and the amount actually paid to Moreno’s. However, in the instances claimed, the court finds that defendant had no authority to have Moreno’s complete the job and charge the cost thereof back against the plaintiff. Plaintiff did refuse to do further work on some of the jobs, but it was justified in refusing to do so by defendant’s failure and refusal to pay for work that had been completed. See Lawson v. Donahue, La. App. (1975) 313 So.2d 263.
Credit for the invoice of Monty Electric Company for alleged correction of improperly placed wall sockets (job LE-17) in the amount of $286.33 is rejected as being uncorroborated.”

The district judge obviously gave great weight to the testimony of General Refrigeration’s president in reaching his decision as to the controversies between these parties. From our reyiew of the record, we are unable to say that he was manifestly in error in doing so. We are therefore bound by his findings of fact. Canter v. Koehring, 283 So.2d 716 (La.1973); Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). And we agree with his application of law. However, the trial judge apparently overlooked the $95.00 expense which Style Home incurred with S & R Finishers for respraying ceilings in a house where vents were cut improperly by General Refrigeration. The appellant is clearly entitled a credit for this item and the judgment will be amended accordingly.

For the foregoing reasons, the judgment of the district court is amended to reduce the amount awarded from $8674.20 to $8579.20 and as amended it is affirmed at appellant’s costs.

AFFIRMED AS AMENDED.


source: Caselaw Access Project

author: SWIFT, Judge.

license: Public Domain

text:
    Louise Levier JOLIVETTE, Plaintiff-Appellant, v. SAFECO INSURANCE COMPANY, Defendant-Appellee.
    No. 7419.
    Court of Appeal of Louisiana, Third Circuit.
    Jan. 30, 1980.

      Boagni & Genovese, Kenneth Boagni, Jr., Opelousas, for plaintiff-appellant.
    Franklin, Moore & Walsh, R. Michael Caldwell, Baton Rouge, for defendant-ap-pellee.
    Before GUIDRY, SWIFT and LA-BORDE, JJ.
   SWIFT, Judge.

Plaintiff, Louise Jolivette, filed this tort action against Safeco Insurance Company to recover damages for injuries allegedly sustained as a result of a rear-end collision.

The manner in which the accident occurred is undisputed.

On August 17,1976, plaintiff, then several weeks pregnant, her sister-in-law and her niece were traveling north on Academy Street in Opelousas, Louisiana. Plaintiff brought her automobile to a stop for a stop sign and it was struck from the rear by a vehicle driven by the defendant’s insured, a Mr. Clay. Mrs. Jolivette then drove on to her sister-in-law’s house where she discovered a pinkish vaginal discharge. Concerned about her pregnancy, she made an appointment to see her family physician, Dr. Emile Ventre. The examination revealed nothing significant. However, the plaintiff complained of headache, neck and back pains and vaginal bleeding. Approximately six weeks after the accident, she spontaneously aborted.

After trial on the merits, the judge found that the abortion was not caused by the accident, but judgment was rendered in favor of plaintiff for general damages in the amount of $650.00, together with $240.00 for lost wages and $411.47 for medical and drug bills. A new trial (limited to the issue of quantum) was granted and thereafter the award for general damages was increased by $500.00 to the sum of $1150.00. It is from this judgment that plaintiff has appealed.

The errors specified by appellant are the amount of the judgment for general damages and that no sums were awarded for loss of the fetus and the hospital bill incurred as a result of the miscarriage.

The trial judge specifically noted in his written reasons for judgment that the plaintiff failed to carry her burden of proof that the accident caused her to miscarry. Dr. Ventre, a general practitioner, testified that her uterus enlarged greatly over a period of a week and it was possible she might have received a blow to the abdomen which could have aborted her, “but I can’t say that it was probable or likely, because I really found nothing to indicate that.” Dr. Floyd M. Hindelang, Jr., an obstetrician and a gynecologist who performed a D & C when plaintiff’s pregnancy was terminated, testified he was unable to tell what caused her abortion. He said that while trauma could cause a miscarriage, this was “a very remote possibility”. The doctor concluded that “the accident probably had no relationship to the abortion.”

When there is evidence before the trier of fact which upon its reasonable evaluation of credibility furnishes a reasonable factual basis for the trial court’s finding, on review the appellate court should not disturb this factual finding unless the record reveals it is clearly wrong. Canter v. Koehring, 283 So.2d 716 (La.1973); Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

The trial court’s finding that the accident did not cause plaintiff’s miscarriage is amply supported by the record, which reveals no manifest error. Therefore, damages for the loss of the fetus, the pain and suffering sustained and the medical and hospital expenses incurred by reason of the miscarriage were properly denied.

Next, plaintiff asserts that the trial judge abused his discretion in granting Mrs. Jolivette only $1150.00 for her pain and suffering from the injuries she received in the collision which were not related to the abortion and also for her mental distress over the condition of the unborn fetus.

The record reveals that Mrs. Jolivette suffered headaches and neck and low back pain as a result of the accident. Dr. Ventre testified that her complaints of back and neck pain were consistent with this type of accident. Based on his examination in which nothing significant was noted except mild signs of spasm and mild limitation of motion, the doctor said the back injury was “. . . mild to moderate. Certainly it was not severe. It was mild I would say.” X rays taken after the miscarriage did not reveal any bony abnormalities. Dr. Ventre treated her for a period of about eleven weeks, during which she regularly obtained diathermy or heat treatments to the areas of her spine of which she complained.

It is evident that the plaintiff was also concerned about her unborn child. This was reflected in her testimony regarding various incidents of “spotting” after the accident up until the time of her miscarriage. Dr. Ventre testified that she was nervous and agitated about this at initial examinations after the accident, but gradually calmed down.

Adhering to the guidelines for reviewing courts set forth in Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1977) and Reck v. Stevens, 373 So.2d 498 (La.1979), we find that under the facts and circumstances of this case the award of $1150.00 for general damages was inadequate and constituted an abuse of the trial judge’s “much discretion”.

As stated in Coco at page 335, it is only after making that finding that the appellate court can disturb the award, “. . . and then only to the extent of lowering it (or raising it) to the highest (or lowest) point which is reasonably within the discretion afforded that court”. And in Reck at page 501, “Only after such determination of abuse has been reached, is a resort to prior awards appropriate under Coco for purposes of then determining what would be an appropriate award for the present case.”

Having made the determination that the award is too low, we have examined prior awards in similar cases, taking into consideration various changes in our society, most particularly rampant inflation in recent years.

With regard to the plaintiff’s physical pain and suffering, we conclude that the lowest amount reasonably within the trial judge’s discretion was $1250.00. South Central Bell v. Branch, 360 So.2d 271 (La.App. 4 Cir. 1978) ($2250.00 and $1500.00); Ritter v. Thornton, 309 So.2d 750 (La.App. 4 Cir. 1975) ($1500.00); Ordonez v. Maryland Casualty Company, 312 So.2d 875 (La.App. 4 Cir. 1975) ($3,000.00).

Also, we have reviewed awards for mental anguish and concern by mothers over the possibility of injuries to their unborn children and believe the minimum award for this in the instant case would be $1250.00. See Muller v. Herrin Motor Lines, 184 So. 406 (La.1938), in which over forty years ago the court gave a wife $750.00 for contusions, bruises and such mental suffering (apparently, $440.00 for the latter). More recently, in Warr v. Kemp, 208 So.2d 570 (La.App. 3 Cir. 1968), plaintiff was awarded $1500.00 for whiplash and $600.00 for fear of miscarriage. Considering their facts and the greater purchasing power of the dollar when decided, other cases have allowed comparable amounts for mental anguish. Bee v. Liberty Mutual Insurance Company, 165 So.2d 73 (La.App. 4 Cir. 1964) ($1500.00 for pain and mental anguish); Wheeler v. Simonton, 215 So.2d 359 (La.App. 2 Cir. 1968) ($1000.00 for pain, suffering and mental anguish); Valence v. Louisiana Power and Light Co., 50 So.2d 847 (Orl.App.1951) ($750.00).

For the above reasons, the judgment of the court below is amended to increase the award to the plaintiff-appellant for her physical pain and suffering and mental anguish from $1150.00 to $2500.00 and as so amended it is affirmed. All costs are assessed to defendant-appellee.

AMENDED AND AFFIRMED.


author: FORET, Judge.

text:
    Eula Cahanin SMITH, Plaintiff-Appellee, v. V. V. SHARPE CO., INC. et al, Defendants-Appellants.
    No. 7421.
    Court of Appeal of Louisiana, Third Circuit.
    Jan. 30, 1980.
    Writ Refused March 21, 1980.
    Don L. Broussard, Lafayette, for defendants-appellants.
    Shelton & Legendre, Thomas Robert Shelton and Thomas Porter, IV, Lafayette, for plaintiff-appellee.
    Before FORET, CUTRER and DOUCET, JJ.
   FORET, Judge.

This is, a workmen’s compensation case arising out of an alleged accident occurring on the 28th day of April, 1976. The trial court rendered judgment in favor of plaintiff for total and permanent disability, and for attorney’s fees in the amount of $5,000.00 for the arbitrary and capricious failure of defendants to pay compensation benefits to the plaintiff.

We quote in part, below, the trial court’s reasons for judgment:

“This is a workmen’s compensation case arising out of an injury allegedly received by the plaintiff while in the employ of the V. V. Sharpe Company in the city of Crowley, Acadia Parish, Louisiana. The accident occurred on the 28th day of April, 1976, when in the process of clipping bags the plaintiff alleged that she felt a sudden pain in her right shoulder, her right arm and neck area. She was seen by Dr. John Guidry on the same day who began treating her symptoms conservatively and at that time he diagnosed the injury as a traumatic neuritis with a possible muscle sprain in the cervical area. When Dr. Guidry found the plaintiff was not improving he referred her to Dr. Stephen Goldware, a neurosurgeon who found nerve root compression in the area of C-5 and C-6 and Dr. Goldware performed surgery fusing the cervical disc on the 3rd of June, 1976, which surgery Dr. Goldware found to be successful.
“The plaintiff however, continued to see Dr. Guidry subsequent to the surgery until the date of the trial with complaints of pain in her neck area and Dr. Guidry testified that her complaints were valid and he prescribed medication and additionally referred her to other specialists for evaluation to determine whether or not the injury that she sustained on the 28th of April, ’76, was the basis of her complaints.
“Dr. Guidry additionally diagnosed the case as a case of traumatic neurosis and never discharged the plaintiff to return to work as he felt that with the complaints of pain she was having she would be unable to return to work.
“On the 26th of January 1979, plaintiff was seen by Dr. Hunter Shirley, a clinical psychologist, whose opinion was that the plaintiff was in fact suffering from a traumatic neurosis, which totally disabled her from any employment at present. He additionally felt that it was possible with treatment that could be rendered for her traumatic neurosis she could recover at some time in the future.
“Complaints by the plaintiff to Dr. Gui-dry and the other specialists who saw the plaintiff remained constant throughout the entire period from the date of the accident.”

On February 3, 1977, based upon reports from Dr. Goldware, the defendants discontinued compensation payments to plaintiff. This was based upon the information received from Dr. Goldware which stated that his operation had been successful and that, in his opinion, the plaintiff was able to return to work.

The defendants, however, were in receipt of information from Dr. John Guidry to the effect that he was still treating Mrs. Smith and that, in his opinion, she could not return to work in that she suffered from traumatic neurosis.

The trial court held that with this information available, the defendants should have had Mrs. Smith evaluated by a psychiatrist or psychologist in order to make a determination as to whether or not she did in fact suffer from traumatic neurosis before discontinuing compensation payments.

Judgment was signed awarding plaintiff attorney’s fees in the amount of $5,000.00 in addition to ordering the defendant to pay all past and future medical, surgical and hospital expenses owed by Mrs. Smith. We affirm.

The defendants-appellants cite as error on the part of the trial court its rendering judgment prior to the introduction into evidence of the deposition of Dr. Gilíes R. Morin, a psychiatrist in Lake Charles. The deposition of Dr. Hunter Shirley, a clinical psychologist, was taken on behalf of the plaintiff the day prior to the trial. In view of this late development, the trial court held the note of evidence open so that the defendant could depose Dr. Morin and enter his deposition into the record in these proceedings. The trial court is empowered to do this pursuant to LSA-R.S. 13:4207.1 which reads in pertinent part:

“Rule 13:4207.1 Cases Under Advisement
Rule 13:4207.1 (applicable to La.R.S. 13:4207).
(a) When Submitted. A case or other matter shall be considered as fully submitted for decision to the trial judge, and should be decided, immediately upon the conclusion of trial or hearing, and judgment signed expeditiously thereafter.
In an exceptional case when the record has been left open upon the conclusion of trial or hearing for the filing of testimony by deposition and/or documents, such depositions and/or documents shall be filed within fifteen days and the case or matter shall be considered as fully submitted, and should be decided, immediately after such filing or the lapse of fifteen days, whichever occurs sooner.”

As noted above, LSA-R.S. 13:4207.1 provides for a fifteen-day time limit within which parties litigant are to submit depositions and/or other documents to the trial court. The trial was held on March 6, 1979. Subsequent thereto plaintiff-appellee filed the deposition of Dr. Hunter B. Shirley into the record. This was done on March 20, 1979. The deposition of Dr. Gilíes R. Morin, the psychiatrist, was not taken until March 30, 1979. It was subsequently filed with the Acadia Parish Clerk on May 11, 1979. The trial judge rendered written reasons for judgment on May 8, 1979. Judgment was subsequently signed on May 24, 1979. Clearly, the defendants’ filing of Dr. Morin’s deposition was untimely. An extension of the fifteen-day period could have been requested by the defendants, but was not. This matter is largely within the discretion of the trial judge, and we find that he did not abuse his discretion.

The second assignment of error which defendants-appellants allege is that the trial court erroneously awarded penalties and attorney’s fees based solely on the fact that the defendants did not send plaintiff to a psychiatrist when her neurosurgeon stated in his opinion she could return to work. The facts are that her physician, Dr. Guidry, found that she had traumatic neurosis. This fact was known to both defendant and its compensation carrier several months prior to the trial as is evidenced from a letter dated October 17, 1978, from Dr. John Guidry, which stated in essence that the patient was suffering from traumatic neurosis and he felt that she would continue to experience pain and limited motion and “presently” she is totally disabled and would remain so far an undetermined amount of time. We feel, as did the trial court, that the discontinuance of and subsequent failure to recommence compensation payments by the defendant was arbitrary and capricious. We do not hold that it was necessarily incumbent upon the defendants to have the plaintiff examined by a psychiatrist or psychologist, but we do feel that it was incumbent upon the defendants to determine whether or not the plaintiff was in fact capable of returning to work. This determination could have been made by reference to various sources which may include a psychologist or psychiatrist. However, the discontinuance of compensation payments based upon the report of Dr. Gold-ware alone, with total disregard for all other sources constitutes, in our opinion, an arbitrary and capricious action on the part of the defendants.

Defendants-appellants further argue that plaintiff-appellee made no allegation in her original pleading as to the traumatic neurosis suffered by her. The record shows that no timely objection was made by counsel for defendants as to this enlargement of the pleadings. If issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised by the pleadings. LSA-CCP Article 1154; Fontenot v. Garland, 352 So.2d 251 (La.App. 3 Cir. 1977) writs ref., 353 So.2d 1339 (La.1978); Standard Roofing Co. v. Ragusa Bros., Inc., 338 So.2d 119 (La.App. 1 Cir. 1976). For this reason, evidence relating to the issue of the traumatic neurosis suffered by the plaintiff was properly admitted inasmuch as counsel for defendants did not timely object to the admission of such evidence.

For the reasons given above, the judgment of the trial court is affirmed.

Costs of this appeal are assessed against defendants-appellants.

AFFIRMED.

      . Although the reasons for judgment given by the trial court stated that judgment would be rendered granting statutory penalties as provided for in workmen’s compensation cases, including attorney’s fees, the judgment itself did not provide for statutory penalties other than attorney’s fees. No appeal was taken or answer filed by the plaintiff with regard to the failure of the judgment to include other statutory penalties in addition to attorney’s fees. Accordingly, this omission of the judgment is now final, and we shall only consider the propriety of the award of attorney’s fees, in addition, of course, to the issue of disability.


author: JONES, Judge.

text:
    William C. VINES, Sr., Plaintiff-Applicant, v. Virginia Gertrude Mann VINES, Defendant-Respondent.
    No. 14125.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 31, 1980.

      Love, Rigby, DeHan, Love & McDaniel, Shreveport, for plaintiff-applicant.
    C. William Gerhardt, Shreveport, for defendant-respondent.
    Before JONES, MARVIN and HALL, JJ.
   JONES, Judge.

Plaintiff-husband, William C. Vines, Sr., sued defendant-wife, Virginia M. Vines, for a separation from bed and board. Defendant moved for an order that plaintiff be required to provide security for costs in the amount of $1,886.00. This amount was alleged to be the sum which defendant will be compelled to pay for three depositions, notary public fees, the fees due the clerk for certain filings, and attorney’s fees. The trial court ordered plaintiff to post bond in the above amount, and plaintiff applied to this court for writs, complaining the bond should not have been ordered. Writs were granted.

The issue is whether the bond for security for costs was correctly ordered.

Defendant claims her right to require plaintiff to post such a bond is granted by L.R.S. 13:4522 and 9:303. L.R.S. 13:4522 provides as follows:

“The defendant before pleading in all cases may by motion demand and require the plaintiff or intervenor to give security for the cost in such case, and on failure to do so within the time fixed by the court such suit or intervention, as the case may be, shall be dismissed without prejudice. * * * ”

The source of this statute is Act 111 of 1926 and this act was construed in Whitson v. American Ice Co., 164 La. 283, 113 So. 849 (1927), wherein it was stated at p. 850:

“. . . the defendant in a lawsuit is not concerned with securing the payment of any of the court costs except those which he may be responsible for without being condemned therefor by the judgment of the court. A defendant may have to employ, and pay or be responsible for the fees of, expert witnesses, auditors, surveyors, or other scientists, whose services or opinions may be needed in defense of the suit; and their fees may be taxed as part of the costs of court, which the plaintiff may finally be condemned to pay. Code of Practice, art. 462; Act 19 of 1884, p. 25. A defendant may also find it necessary to take the depositions of witnesses under commission, and may have to pay in advance or be responsible for the notary’s fees or other expenses which may be taxed as costs of court and which the plaintiff may ultimately be condemned to pay. As to such court costs alone — which the defendant may have to pay or be responsible for in advance of a judgment determining who shall pay the costs — the Act 111 of 1926 is applicable. It is not applicable to the court costs generally, which the defendant in a case is not at all responsible for unless and until he is finally condemned to pay them. Security for the payment of such costs, in the parishes other than the parish of Orleans, is provided for in the fifth section of the Act 203 of 1898, p. 490, [our L.R.S. 13:843], which allows the clerk of court or the sheriff to demand of the plaintiff security for costs at the time of filing the suit, and to demand additional security at any time thereafter . . . ”

Romero v. Romero, 232 So.2d 572 (La.App. 3d Cir. 1970), states that L.R.S. 13:4522 requires a bond only for those necessary expenses which a defendant may have to pay in advance of a judgment deciding who shall pay costs and which plaintiff may ultimately be condemned to pay. Given as examples as proper costs for which a L.R.S. 13:4522 bond may be required are the fees of expert witnesses, necessary depositions of witnesses, and certain notary public fees which may be taxed as court costs. Romero recognized the costs for which the clerk of court may demand payment or security are not those which defendant can demand be covered in a L.R.S. 13:4522 bond. L.R.S. 13:843 provides as follows:

“The clerk of court may demand security for costs at the time the suit is filed.
After any cost advance furnished under R.S. 13:842 has been exhausted, all accrued costs shall be paid by the party primarily responsible therefor, or by the surety on any bond for costs furnished by him, upon receipt of the clerk’s demand for payment thereof supported by an itemized account of these accrued costs approved by the judge. If these accrued costs are not paid within ten days of the demand for payment, judgment therefor may be rendered against the party, and against the surety on any cost bond furnished by him, by rule returnable not less than two judicial days from the date of service upon the defendants in rule and the clerk may employ an attorney at law to assist him in filing and trying said rule or rules, and the fee of the attorney employed for that purpose shall be fixed by the district judge before whom the rule is tried and shall be taxed as costs along with the cost of hearing the rule.”

Carter v. Phillips, 337 So.2d 187 (La.1976), makes it clear that L.R.S. 13:4522 does not relate to the ordinary court costs for which the clerk of court is authorized by L.R.S. 13:843 to demand security. The supreme court in Carter re-enunciated the rule that the costs for which a bond may be demanded under L.R.S. 13:4522 are for those expenses incurred by the defendant in defense of the suit which may eventually be taxed as court costs and which the plaintiff may finally be condemned to pay.

Under the jurisprudence interpreting L.R.S. 13:4522 it is clear that defendant has no right to demand a bond to secure the court costs of filing various pleadings listed by her in her motion. These are the type costs for which the clerk of court may demand plaintiff to pay or post security to assure payment under the provision of L.R.S. 13:841-843, but are not the kind included in § 4522 for which defendant may demand a bond. That part of the order requiring plaintiff to post a bond for $136.00 for filing costs is therefore incorrect.

Defendant also asked for the bond to cover $1,500.00 as attorney’s fees. The general rule is that attorney’s fees cannot be recovered from the opposing litigant unless provided for by statute or contract. See Sutterfield v. Sutterfield, 354 So.2d 707 (La.App. 4th Cir. 1978), and cases cited therein. Attorney’s fees are not recoverable as costs unless provided for by statute. An example of this type authorization is contained in LSA-C.C.P. arts. 5091 and 5096 .

An example of statutory authorization for attorney’s fees is contained in L.R.S. 42:261(E) wherein a public official is authorized to collect attorney’s fees from an unsuccessful plaintiff who sues him relating to “matters arising out of the performance of the duties of his office”. This statute further provides for bond to secure payment of the attorney’s fee which bond is similar to that provided for court costs under L.R.S. 13:4522. L.R.S. 42:261(E) provides:

“. . . The defendant public official shall have the right by rule to require the plaintiff to furnish bond, as in the case of bond for costs, to cover such attorney’s fees before proceeding with the trial of said cause.”

There is no statute authorizing a wife or husband in a separation or divorce action to collect attorney’s fees from the other, nor is there any statute requiring security for such attorney’s fees.

While attorney’s fees of the husband and wife incurred in suits for separation and divorce have been construed as community debts, the party litigants in these cases are not personally responsible for the payment of the attorney’s fees of their adversary beyond the requirement that the assets of the community existing between them can be held responsible for these attorney’s fees. Tanner v. Tanner, 229 La. 399, 86 So.2d 80 (1956); Malone v. Malone, 260 La. 759, 257 So.2d 397 (1972); Donica v. Donica, 347 So.2d 1259 (La.App. 1st Cir. 1977). The concept of attorney fees being considered a community debt in separation and divorce litigation cannot be considered as indicating that attorney fees of the defendant in a separation of bed and board suit could be construed as an item of court costs for which the plaintiff could be required to post bond under the provisions of L.R.S. 13:4522. That part of the order requiring plaintiff to post a bond for $1,500.00 as attorney’s fees is therefore incorrect.

The defendant in her pleading styled “Motion For Order For Cost”, wherein the bond herein complained of was requested, sought same not only under the provisions of L.R.S. 13:4522, but also under the provisions of L.R.S. 9:303 which reads as follows:

“In actions for divorce and separation from bed and board, a defendant, upon a proper showing to the court, may obtain an order requiring the plaintiff to deposit with the clerk of court for defendant’s account, a sum sufficient to defray defendant’s costs and, after rendition of such an order, no further proceedings shall be had by plaintiff pending compliance therewith and for ten days after such compliance with said order.”

We have found no case interpreting this statute. The statute does not provide authority for any bond as security for cost such as was herein ordered, but rather it grants to a defendant in a separation or divorce action upon proper showing to the court a right to obtain an order requiring “the plaintiff to deposit with the clerk of court for defendant’s account a sum sufficient to defray defendant’s costs.” This statute gives to the defendant in a separation and divorce action a right not available to a defendant in other litigation, that is to require a deposit of money by the plaintiff with the clerk to cover those fees and costs for services of the clerk required by defendant in connection with his defense of the litigation, and which cost the defendant would not ordinarily be required to pay. See Whitson v. American Ice Co.; Romero v. Romero; Carter v. Phillips, supra, which have all held that the right to require plaintiff to pay clerk’s costs belongs solely to the clerk. In referring to “defendant’s costs”, the statute refers to clerk’s costs and not to other expenses such as deposition costs, expert witness fees, and attorney’s fees, that may be incurred by a defendant in the course of litigation.

The language of the court in Whitson was “that the defendant in a lawsuit is not concerned with securing the payment of any of the court costs except those which he may be responsible for without being condemned therefor by the judgment of the court.” The Whitson court was pointing out that normally a defendant has no interest in whether the clerk’s costs are paid until such time as a final judgment is rendered and he is adjudged liable for these costs.

We do not agree with the contentions of defendant in brief nor with the opinion of the trial judge expressed in his per curiam herein filed that L.R.S. 9:303 was designed to make the defendant’s attorney fee an item of clerk’s costs for which the defendant could require plaintiff to deposit money with the clerk of court for defendant’s account, nor did it have the effect of, in some fashion, creating defendant’s attorney fee as an item of court costs for which she could demand security under the provisions of L.R.S. 13:4522. There is not one word in L.R.S. 9:303 to justify such an interpretation. There would be no reason for the legislature to require a deposit with the clerk to secure the payment of defendant’s attorney’s fees by the plaintiff when the plaintiff has no personal liability for them.

We believe that the reason for the exception to the rule that defendant cannot require security for clerk’s costs provided for defendants in separation and divorce suits is because in these cases court costs incurred including those of the clerk of court which are covered by the provisions of L.R.S. 13:841-843 become community debts where there are assets of the community existing between the litigants. Under these circumstances the defendants are vitally interested in payment of these costs for the reason that whatever results may follow from the litigation the community property in which defendant has an interest will be responsible for payment of the debt. See Tanner, Malone and Donica, supra. This would be true even though the defendant might win the separation or divorce action and not be personally cast for the cost.

The defendant herein would have been entitled to an order from the district court under the provisions of L.R.S. 9:303 requiring plaintiff to deposit with the clerk the $136.00 required to file her pleadings. However, no such order was rendered and we only make this observation because this would be the proper approach for the defendant to take in order to take advantage of the statute.

The defendant is entitled to the bond as security under the provisions of L.R.S. 13:4522 for possible reimbursement of her deposition expenses which she established by affidavit to be $250.00.

For the reasons hereinabove set forth the trial court’s order requiring the bond be posted in the amount of $1,886.00 is amended to reduce the bond requirement by $1,636.00, resulting in the bond requirement now being the sum of $250.00.

All costs of this writ application are assessed against the defendant.

      . C.C.P. art. 5091 in pertinent part provides:
      “The court shall appoint an attorney at law to represent the defendant, on the petition or ex parte written motion of the plaintiff when:
      (1) It has jurisdiction over the person or property of the defendant, or over the status involved, and the defendant is:
      (a) a nonresident or absentee who has not been served with process, either personally or through an agent for the service of process, and who has made no general appearance.
      All proceedings against such a defendant shall be conducted contradictorily against the attorney at law appointed by the court to represent him.”

      . C.C.P. art. 5096 in pertinent part provides: “The court shall allow the attorney at law appointed to represent a defendant a reasonable fee for his services, which shall be paid by the plaintiff, but shall be taxed as costs of court." [our emphasis]


author: BROOM, Justice,

text:
    Susan M. PATTILLO, John Madison Pattillo, and Sandra Pattillo Cockerham v. CESSNA AIRCRAFT CORPORATION.
    No. 51706.
    Supreme Court of Mississippi.
    Feb. 20, 1980.
    Cothren, Pittman & Ferrell, Wayne E. Ferrell, Jr., Jackson, Smith & Doggette, Laurel, Robert W. Graves, Jackson, for appellants.
    Watkins & Eager, John L. Low, IV, William E. Suddath, Jr., Jackson, for appellee.
    Before PATTERSON, BROOM and COF-ER, JJ.
   BROOM, Justice,

for the Court:

“Second Accident Doctrine” of tort liability is the theory of this case wherein the heirs of John Wesley Pattillo, deceased, (Susan M. Pattillo, John Madison Pattillo and Sandra Pattillo Cockerham) sued the estate of airplane pilot Curtis T. Noble, Noble’s corporate employer Hesler-Noble Air Service, and Cessna Aircraft Corporation (Cessna). Settlement was made of the claims against each of the defendants except Cessna, the appellee herein. This appeal is from the Circuit Court of the Second Judicial District of Jones County; which court sustained a demurrer to the plaintiff’s declaration. We affirm.

Summarized, the facts are as follows. John Wesley Pattillo was killed in an air crash on or about March 7, 1978 when the Cessna aircraft piloted by Curtis T. Noble (owned by his corporate employer) crashed in a dense fog near Laurel, Mississippi. Pattillo was a passenger for hire and on impact the right seat of the aircraft, in which he was sitting, tore loose from the frame of the aircraft. The seat belts and the seat anchors broke causing Pattillo to be thrown into the yoke, the instrument panel, and then out of the aircraft resulting in his death. According to the amended declaration, the crash was the sole proximate result of the negligence of the pilot Noble (Noble was also killed in the crash) and his corporate employer Hesler-Noble Air Service. Cessna is not charged with any negligence whatsoever so far as the piloting or operation of the airplane is concerned. Cessna was charged with negligence only with reference to the design, manufacture and other aspects of the seat belts and attachments placed in the aircraft for the protection of its crew and passengers, including the plaintiffs’ decedent. The declaration charges Cessna with breach of an implied warranty of fitness of the seat belts and attachments to protect passengers in the event of a survivable crash— the crash at issue was not alleged to have been survivable.

Theory of the cause asserted against Cessna here is what is known as the “Second Accident Doctrine”, i. e., the negligence of Cessna did not itself cause the crash but contributed to or aggravated or enhanced decedent Pattillo’s injuries which he sustained in the accident. The “Second Accident Doctrine” was before us in Walton v. Chrysler Motor Corp., 229 So.2d 568 (Miss.1969) where we held:

Although it is true that the manufacturer is liable for defects in its product which cause injury arising out of the intended use for which the product is manufactured ... an automobile manufacturer is not liable for injury arising from defects in the automobile which did not cause or contribute to the cause of the accident, such as a rear-end collision. This is true although such accident may have been foreseeable as a misuse of the manufactured product. Evans v. General Motors Corp., [359 F.2d 822 (7th Cir. 1966)].

(229 So.2d at 572).

After our decision in Walton, we decided another case dealing with the “Second Accident Doctrine”. Ford Motor Co. v. Simpson, 233 So.2d 797 (Miss.1970). In that case it was contended that Ford Motor Co., manufacturer of a motor vehicle, was liable because a passenger in a pickup truck received a knee injury when her knee came in contact with the heater inside the pickup truck. The contention there was that Ford had negligently designed its vehicle and caused the heater to be placed in a location which was unreasonably dangerous to the passenger in the event of a collision. In rejecting the plaintiff’s claim there, we stated that we would continue to follow the rationale of Walton. Our opinion in Ford Motor Co. has the following pertinent language:

It is clear that the claimed defect did not cause the initial accident in this matter. . . .

(233 So.2d at 798).

In General Motors Corp. v. Howard, 244 So.2d 726 (Miss.1971), we were the third time asked to accept the “Second Accident Doctrine” which we again rejected following the rationale of Walton v. Chrysler Motor Corp., supra, and Ford Motor Co. v. Simpson, supra.

Appellants argue that our decision in Walton, supra, which we followed in Ford Motor Co., supra, and General Motors Corp., supra, is outdated and now out of step with the rule being followed by the majority of jurisdictions in this country. Therefore, it is argued that we should overrule our earlier cases wherein we rejected the “Second Accident Doctrine.” Further argument is made that most of the decisions relied upon by this Court when we rejected the so-called doctrine or theory have now been repealed or overruled. As recently as 1974 our line of cases was adhered to in Williams v. Cessna Aircraft Corp., 376 F.Supp. 603 (N.D.Miss.1974). There the facts were almost identical to the facts now before us and the Court on the strength of Walton v. Chrysler, supra, and Ford v. Simpson, supra, held:

Mississippi law precludes imposition of liability on the basis of a “second accident” where the alleged defect did not cause or contribute to the initial mishap and did not arise from the intended normal use for which the product was manufactured. Applying Mississippi law to the present case, we conclude: (a) the failure of the seat and harness must be regarded as a separate or “second accident,” and (b) the defendant, Cessna, was under no duty to design its seat and harness assembly, as a matter of ordinary intended usage, to withstand a high speed crash. . . .

(376 F.Supp. at 607).

Appellants contend that we should now adopt and follow Larsen v. General Motors Corp., 391 F.2d 495 (8th Cir. 1968). In Larsen, the issue, much the same as that before us, was thoroughly discussed and the appellants commend to us the following language taken from Larsen :

No rational basis exists for limiting recovery to situations where the defect in design or manufacture was the causative factor of the accident, as the accident and the resulting injury, usually caused by the so-called “second collision” of the passenger with the interior part of the auto-. mobile, all are foreseeable ... an automobile manufacturer is under no duty to design an accident-proof or foolproof vehicle or even one that floats on water, but ... is under a duty to use reasonable care in the design of its vehicle to avoid subjecting the user to an unreasonable risk of injury in the event of a collision. Collisions with or without fault of the user are clearly foreseeable by the manufacturer and are statistically inevitable.

(391 F.2d at 502).

Although the brief filed before us by the appellants sets forth the thinking of different scholars and courts as to why the “Second Accident Doctrine” should be adopted, we are not persuaded and adhere to Walton, supra; Ford Motor Co. v. Simpson, supra, and General Motors v. Howard, supra. These decisions have committed this Court to the proposition that the defendant whose wrong caused the accident is the proper party defendant against whom recovery may be had. As stated by us in Walton, supra,

In the future there may be some legal requirements for uniform automobile design imposed upon the manufacturer, but we are of the opinion that such requirements should be outlined in detail by the legislative branch of the government.

(229 So.2d at 573).

We are unwilling to hold Cessna liable because an aircraft manufactured by it crashed to the ground in a dense fog and under adverse weather conditions. As alleged in the amended declaration, pilot Noble was not licensed “to conduct any air taxi” at the time of the crash, and it appears obvious from the declaration that the crash was caused simply by pilot error. On the peculiar facts presented we will not reverse our prior holdings, and accordingly our decision here is that the lower court did not err in sustaining the demurrer.

AFFIRMED.

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

BOWLING, J., takes no part.


author: WALKER, Justice,

text:
    Ralph E. WILLIAMSON and Daphine P. Williamson v. Cletus B. METZGER, d/b/a Waverly Sand and Gravel Company.
    No. 51624.
    Supreme Court of Mississippi.
    Feb. 20, 1980.

      Graham, Segrest & Johnson, J. Tyson Graham, Columbus, for appellants.
    Carter & Davidson, Bearden & Bearden, Dudley H. Carter, W. E. Bearden, Jr., Columbus, for appellee.
    Before ROBERTSON, WALKER and LEE, JJ.
   WALKER, Justice,

for the Court:

This is an appeal by Ralph E. Williamson and wife, Daphine P. Williamson (hereinafter referred to as lessors) from a final decree of the Chancery Court of Lowndes County, Mississippi, rendered January 26, 1979, which refused to cancel and terminate a certain mining lease entered into between the lessors and Cletus B. Metzger (hereinafter referred to as lessee).

The lessors and lessee entered into a sand and gravel mining lease on May 6,1976, and an amended mining lease on May 7, 1976. The lease provided inter alia that: The lessee would provide the lessors his books and records concerning his mining opera-, tions. In addition, the lease provided that the lessee would place a weight scale on the property within 30 days from the date that a certain road was built by the lessors. The lease also provided that in the event any default occurred by the lessee, the lessors could give 30 days notice in writing to the lessee demanding correction of the default. In the event the default was not corrected, lessors could then terminate the lease.

It is uncontradicted that after the lease was signed, mining operations were begun by the lessee, and the road referred to in the lease was built by the lessors and completed about the end of May, 1976. Under the lease, the weighing scale was to be used by the lessee in measuring the amount of gravel taken and was to be placed on the property within 30 days following the completion of the road. The lessee admitted in his testimony that the lessors built the road referred to in the lease, but that he, the lessee, did not place the scale on the property-

For two years and one month after the completion of the road, the weighing scale was not placed oh the lessors’ property by the lessee. However, it is undisputed that the lessors accepted royalty checks from the lessee during the two-year period.

It is further undisputed that the lessee received a letter from lessors on June 5, 1978, demanding that the scale be placed on the property; and, that the lessee received a letter on July 13, 1978, terminating the lease. The testimony was in conflict as to whether the books and records of the lessee were furnished to the lessors. The lessors testified that the books and records were not furnished, but the lessee testified that he offered to let the lessors see the books and records.

At the hearing, the court allowed the lessee to testify, over objection of the lessors, that the lease had been modified by the lessors orally agreeing not to require the scale to be placed on the property. The lessee further testified that in reliance on the lessors’ assurance that no scale was needed, he concentrated all of his operations on the leased property.

The lower court found that the lessee did furnish the lessors accurate records of minerals removed and, by concentrating and locating his mining operation on subject leased land, the lessee had demonstrated his reliance on conversations of the parties that the scale was not so required, and that the lessors acquiesced therein by accepting rentals for two years.

The lower court decreed that the lease was in full force and effect, but required the lessee to place a weighing scale on the leased premises on or before March 15, 1979, and required the lessee to pay royalties to the lessors in accordance with the weight but permitted the lessee to sell sand and gravel to customers by either yards or weight. From this final decree, lessors urge this Court to reverse the decision of the lower court.

The principal contention of the lessors on this appeal is that the court erred in allowing Metzger, the lessee, to testify that the lease had been orally modified.

In support of this contention, appellants rely upon Sharpsburg Farms, Inc. v. Williams, 363 So.2d 1350 (Miss.1978), where this Court defined the parol evidence rule as follows:

“[T]he rule that the terms of a written contract or conveyance cannot be varied or added to by parol evidence is not merely a rule of evidence, but is one of substantive law, and, in measuring the rights of the parties to a written contract or conveyance, which, on its face, is unambiguous and expresses an agreement complete in all of its essential terms, the writing will control. Jones, Commentaries on Evidence, Vol. 3, par. 434; Wigmore on Evidence, Vol. 4, pars. 2400 and 2425.” (363 So.2d at 1355).

While this is a correct statement of the law concerning parol evidence, it is not applicable to the question here presented. The rule that a written contract cannot be changed or modified by parol evidence of what was agreed by the parties at the time of making the contract does not preclude a subsequent parol modification of the written contract, provided it is not one which must be in writing under the. statute of frauds. Nor does it preclude an oral agreement to waive or modify a particular provision in a written contract. Commercial Credit Corporation v. Long, 225 Miss. 164, 82 So.2d 847 (1955); Nason v. Morrissey, 218 Miss. 601, 67 So.2d 506 (1953).

In the case of Lee v. Hawks, 68 Miss. 669, 9 So. 828 (1891), it was held that:

The statute of frauds debars one of an action on a contract, in certain cases, unless the contract be in writing; but a parol agreement to annul or waive a particular stipulation in the written contract which has been mutually assented to and fully performed, may be offered in evidence in defense of an action for a breach of the original written contract. An action may not be maintained, in cases within the statute, upon a contract not in writing; but a defense may be made by showing an executed parol agreement waiving or annulling a particular provision of the written contract.
The subject is not free from difficulty, and the discussions by text-writers, and the opinions of courts in reported cases, are full of subtle distinctions and refinements, nor is the current of authority clearly bent in any direction.
The views briefly advanced hereinbe-fore are supported by some excellent authorities, and are agreeable to reason and justice.
Benjamin in his admirable work on Sales, (page 229), states the rule with his usual clearness: “Parol evidence to prove, not a substituted contract, but the assent of the defendant to a substituted mode of performance of the original contract, when that performance is completed, is admissible.”
See Swain v. Seamens, 9 Wall. 254, [19 L.Ed. 554]; Jackson v. Litch, 62 Pa.St. 451; Long v. Hartwell, 34 N.J.Law, 116; Reed on Statutes of Fraud, § 239. (68 Miss. 671, 672, 9 So. 828).

In the case sub judice, parol evidence was not used to prove a substituted contract, but was used to show the assent of the lessors to a substituted mode of performance of the original lease; that is, that the scale was not required to be placed upon the property within 30 days following completion of the road, because payment would be based on measurement by the yard rather than weight, which mode of payment was accepted for two years and one month.

In Albert Mackie & Co. v. S. S. Dale & Sons, 122 Miss. 430, 84 So. 453 (1920), an action for damages was instituted by the plaintiff company for the alleged breach of a certain contract in writing for the purchase of six carloads of Irish potatoes. To the declaration, defendant interposed a plea which set up a subsequent parol agreement whereby plaintiff agreed to accept and the defendant agreed to deliver only three carloads' instead of six. The parol agreement was denied by the plaintiff and the issue of fact was submitted to the jury. There was a verdict and judgment for the defendant. The main point relied upon by the appellant for reversal of the judgment was that the original contract sued upon was covered by the statute of frauds, and modification of the original contract was void if not in writing.

In reply to this contention, this Court held:

There is much authority to the effect that a strict performance of a written contract within the statute of frauds may be waived by a parol understanding or by words and acts inconsistent with an intention to require performance where the other party has been mislead or kept from performing. It has been frequently stated that the statute of frauds may not be used to perpetrate a fraud.

The Court further held:

The simple contention is made that the purchaser agreed to accept one-half of the property contract to be delivered and waive performance as to the other half. It is immaterial whether this action be termed a waiver, modification, or release. The parties acted upon the parol agreement, and, if the testimony on behalf of appellee be true, it would be very inequitable to award damages in this case. (122 Miss. 449, 84 So. 454, 455).

In 30 Am.Jur.2d Evidence § 1063, p. 203, we find the following concerning subsequent parol agreements or modifications:

It has been said that the parol evidence rule is intended to prevent, not to promote, frauds, and it would be a fraud to allow a party to a written agreement to enforce it as written when he has agreed not to do so, where the other, on the faith of the agreement, has acted thereon to his detriment.

The above authorities are applicable to this case. We are dealing here with a parol agreement, asserted by the lessee, and found to exist by the chancellor, to waive or modify a condition in the lease agreement, and which oral modification is asserted by way of defense to an action by lessors for breach of the lease. Under the authority of Lee v. Hawks, supra, and Albert Mackie & Co. v. S. S. Dale & Sons, supra, the trial judge correctly allowed parol evidence by the lessee to show the substituted mode of performance.

Appellants’ remaining assignment of error concerns the refusal of the trial court to terminate and cancel the lease between the parties.

In support of this position, the appellants cite several Mississippi cases, which are authority for the proposition that the forfeiture provision of a lease will be upheld where the violation of a covenant is willful and substantial. The cases cited by appellants deal primarily with instances of nonpayment of rent as grounds for forfeiture, Clark et al. v. Service Auto Company, 143 Miss. 602, 108 So. 704 (1926); or, forfeiture for violation of a covenant against subletting without written consent or waiver, Robertson v. Fuller, 212 Miss. 888, 56 So.2d 74 (1952) and Polk v. Gibson Products Co. of Hattiesburg, Inc., 257 So.2d 225 (Miss.1972).

While the above authorities clearly give a lessor the authority to terminate a lease, this argument must fail because there was a waiver of forfeiture by the lessors by their acceptance of royalties for a period of two years and one month according to their oral agreement.

Without a great amount of elaboration, we are of the opinion that the case of Scruggs et al. v. Clark et al., 213 Miss. 290, 56 So.2d 805 (1952), is dispositive of appellants’ argument.

In that case, the lessor filed a bill to cancel a sand and gravel lease. The lease contract contained a provision that if the lessee should cease operations for a period of 30 days in succession, the contract would, at the end of said 30-day period, be at an end; and all rights of the lessee would simultaneously cease, unless the lessor, before the expiration of the said 30-day period gave their written consent to the lessee for such cessation of operations. The lessor alleged that this condition had been violated and the lease forfeited. Decree was entered cancelling the lease and the lessee appealed. In reversing the decree of the lower court, this Court stated:

When a lessor accepts regular monthly royalties from the lessee with full knowledge of the nature and extent of the operations by the lessee, he is estopped to claim a forfeiture. He thereby assents to the view that there has been no forfeiture and that the nature and extent of the operations of which he might otherwise complain are not in accordance with the lease. Koenig v. Calcote, 199 Miss. 435, 25 So.(2d) 763. See also 2 Summers, Oil & Gas (Perm.Ed.) Sec. 488.

In Koenig v. Calcote, cited above, this Court quoted with approval from 12 C.J.S. Cancellation of Instruments § 38, p. 996, that:

. where a party, with knowledge of facts entitling him to rescission of a contract or conveyance, afterward, without fraud or duress, ratifies the same, he has no claim to the relief of cancellation. An express ratification is not required in order thus to defeat his remedy; any acts of recognition of the contract as subsisting or any conduct inconsistent with an intention of avoiding it, have the effect of an election to affirm.

In 58 C.J.S. Mines and Minerals § 184, p. 396 (1948), it is stated:

A forfeiture of a mining lease for failure of the lessee to perform the stipulations, covenants, or conditions as to working the mine may be waived by the lessor, and such waiver may be shown by the acts or conduct of the lessor, such as by his subsequent assent to an assignment of the lease, or by permitting a continuance of the prosecution of the enterprise and the expending of money therein by the lessee, after knowledge of the breach of a condition on which the lease might have been forfeited, or by receiving rent after knowledge of the acts on which a forfeiture is claimed.

We think there can be no question, but that the lessors waived the covenant in the lease. The lease provided that the lessee would place the weighing scale on the property within 30 days from the date that a certain road was built by the lessors. The road was completed near the end of May, 1976, and the weighing scale was not placed on the property. However, receipt of the royalties for a period of two years and one month after the breach was accepted by the lessors in the amount of over $90,000.00. By the receipt of those payments, without complaint, the lessors clearly and definitely recognized the existence of a lease.

We are of the opinion that the chancellor correctly found that the appellants waived any breach of the lease which the lessee may have committed, and were estopped to assert a forfeiture of the lease.

The judgment of the lower court is affirmed.

AFFIRMED.

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


text:
    Jimmy WATTS v. STATE of Mississippi.
    No. 51687.
    Supreme Court of Mississippi.
    Feb. 20, 1980.
    Robert S. Reeves, McComb, for appellant.
    A. F. Summer,' Atty. Gen. by Susan L. Runnels, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Pike County; Joe N. Pigott, Judge.

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

AFFIRMED.

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


text:
    Herbert Hunt GRICE v. STATE of Mississippi.
    No. 51715.
    Supreme Court of Mississippi.
    Feb. 20, 1980.
    Donald W. Bond, Winona, for appellant.
    A. F. Summer, Atty. Gen. by Wayne Snuggs, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Oktibbeha County; Harvey S. Buck, Judge.

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

AFFIRMED.


text:
    Woodrow W. BARHAM, Jr. & Dale E. Barham, Co-Executors of the Estate of W. W. Barham, Sr., Deceased, v. MERCHANTS & MANUFACTURERS BANK OF ELLISVILLE, Miss.
    No. 51588.
    Supreme Court of Mississippi.
    Feb. 20, 1980.
    Holifield & Harper, Matthew Harper, Jr., Laurel, for appellants.
    Deavors, Weems & Gilchrist, M. B. Weems, Laurel, Oates & Houston, R. K. Houston, Jr., Bay Springs, for appellee.
   Appeal from Chancery Court, Jones County; J. Shannon Clark, Chancellor.

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

AFFIRMED.


text:
    Terry ADAMS and Cornelius White v. Robert BEALL.
    No. 51688.
    Supreme Court of Mississippi.
    Feb. 20, 1980.
    Charles J. Weeks, Pascagoula, for appellants.
    Earl L. Koskela, Pascagoula, for appellee.
   Appeal from Chancery Court, Jackson County; Kenneth B. Robertson, Chancellor.

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

AFFIRMED.


text:
    Eugene STEWART v. STATE of Mississippi.
    No. 51680.
    Supreme Court of Mississippi.
    Feb. 20, 1980.
    Walls, Buck & Irving, Johnnie E. Walls, Jr., Greenville, for appellant.
    A. F. Summer, Atty. Gen. by Frankie Walton White, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Humphreys County; Arthur B. Clark, Judge.

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

AFFIRMED.


text:
    ESTATE OF Margaret Ward TAYLOR, Deceased, Zelma Singleton Fletcher, Executrix, v. Elgina TAYLOR.
    No. 51711.
    Supreme Court of Mississippi.
    Feb. 20, 1980.
    Mize, Thompson & Blass, Henry F. Laird, Jr., Gulfport, for appellant.
    Harry P. Hewes, Gulfport, for appellee.
   Appeal from Chancery Court, Harrison County; John S. Morris, Chancellor.

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

AFFIRMED.


text:
    Jimmy L. LEWIS v. STATE of Mississippi.
    No. 51852.
    Supreme Court of Mississippi.
    Feb. 20, 1980.
    Lester R. McMillan, Decatur, for appellant.
    A. F. Summer, Atty. Gen. by Catherine Walker Underwood, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Newton County; Marcus D. Gordon, Judge.

Before PATTERSON, C. J., ROBERTSON, P. J., and SUGG, J.

AFFIRMED.


author: BEATTY, Justice.

text:
    SHERMAN HOLLAND FORD, INC. v. Edith Grady LOVELADY et al.
    78-223.
    Supreme Court of Alabama.
    Nov. 30, 1979.
    Rehearing Denied Jan. 25, 1980.
    Rodney A. Max and Richard F. Ogle, of Denaburg, Schoel, Meyerson & Ogle, Birmingham, for appellant.
    Ralph E. Coleman, Birmingham, for ap-pellees.
   BEATTY, Justice.

Defendant appeals from an order denying its motion to alter or amend a judgment in which the Shelby County Circuit Court held that a lease provision granting defendant-lessee an option to purchase the leased premises was void as a matter of law. We reverse and remand.

Plaintiffs, the children of W. E. Lovelady, Jr., deceased, brought this action for declaratory relief and damages against defendant Sherman Holland Ford, Inc. [hereinafter “Holland”], the tenant in possession of certain realty which had been devised to plaintiffs under Mr. Lovelady’s will. Plaintiffs requested that the circuit court declare the lease to Holland (and certain options contained therein) void and that defendant be required to pay reasonable rent for the occupancy of the leased premises.

The evidence, which was taken ore tenus, shows that Holland had begun leasing the subject property (land and a building) from W. E. Lovelady, Jr., in 1967. Mr. Lovelady died testate in 1969, leaving the property to plaintiffs. The devise, however, was “subject to the right of my Executor to take said property into possession and to rent any of the real property or to convert any of the same into cash or sell any of said property . . . without any order of any Court. . . . ” in 1970, after extensive negotiations between Lovelady’s executor and defendant, the parties reached an agreement under which Holland would continue to lease the premises for five years. The lease also granted Holland an option to renew the lease for an additional five year term and an option to purchase the property for $100,000 at any time during the ten-year period. The rent, which had formerly been $600 per month, was reduced to $250 per month for the first two years of the new lease term and was thereafter to be $300 per month. In return, Holland agreed to improve the property, which was then in poor condition, at a minimum cost of $30,-000. Holland also agreed to maintain the property, except for the roof of the building, during the term of the lease.

At the conclusion of the evidence, the circuit court found that Holland had improved the property at a cost of approximately $43,000, that the improvements were intended to be additional rent, and that those improvements became the property of the plaintiffs, subject to the terms of the lease. The lease was held to be valid and binding on all parties except for the provision granting defendant an option to purchase the property, which was held to be void and ineffective. The court specifically found that “the lease, with the option to purchase deleted, was a fair and reasonable agreement for all of the parties.”

The legal question presented appears to be one of first impression in Alabama. That question may be phrased as follows:

When a will grants an executor the power to lease and/or sell devised property without any prior order of any court, does the power given include the power to grant a lessee an option to purchase the property upon the termination of the lease?

After reviewing the authorities in other jurisdictions, we have concluded that an executor in such circumstances may only give the lessee an option to purchase when the evidence indicates that the property could not otherwise be advantageously leased or sold.

The general rule concerning the power of an executor to give an option to purchase estate property when the will merely gives him the authority to sell and/or lease the property was well expressed by the Georgia Supreme Court in Adler v. Adler, 216 Ga. 553, 118 S.E.2d 456, 83 A.L.R.2d 1303 (1961):

It has long been the rule, both in America and in England, until changed by statute in England . . . that “the trustee who has a power to sell in addition to a power to lease, whether the latter is express or implied, does not ordinarily have the power to give the lessee an option of purchase for a definite sum during the term of the lease. The purpose of this rule is to compel the trustee to exercise his judgment at the time of the sale and not at the time of the making of the lease as to whether the sale is beneficial to the trust estate.” [Citations omitted.] [118 S.E.2d at 458. See also Moore v. Trainer, 252 Pa. 367, 97 A. 462 (1916).]

Favorable reference to the general rule as it was enunciated in Adler was made by this Court in another context in City of Tuskegee v. Sharpe, 292 Ala. 14, 288 So.2d 122 (1974), wherein it was held that a city with the statutory authority to direct the disposal of any realty not needed for municipal purposes did not have the power to grant a prospective purchaser an option to purchase the real estate.

Defendant, however, urges us to recognize an exception to the general rule concerning the lack of authority of an executor to grant an option to purchase estate property. It is contended that an executor should be able to give. a purchase option when the failure to do so will result in a practical inability to utilize the estate property profitably. As is pointed out in the Second Restatement of Trusts :

Under some circumstances, however, it may be proper for the trustee to give such an option as where it is prudent to do so and the sale cannot otherwise be advantageously made.
If a trustee has the power to sell and lease trust property, he may make a lease and give an option to purchase where the property cannot otherwise be advantageously leased or sold. Thus, he may under such circumstances., make a lease with an agreement that the lessee shall make improvements on the property and shall have an option to purchase the property on the termination of the lease. [Restatement (Second) of Trusts, § 190, comment k. See also 4 Bogert, Trusts and Trustees, § 741, at 568.]

We agree with defendant that under some circumstances an executor with the power to lease and sell devised property should be given the power to sell under option as the Restatement recommends.

The trial court found ore tenus that at the time of the negotiations between the executor and the defendant, the leased building was in poor condition and required extensive renovations and improvements,which the estate was financially unable to make. The court also found that the building was designed for the special purpose of an automobile agency. Additionally, the evidence indicates that another automobile dealership in the same general vicinity had moved out of its building and that that property was available to Holland.

The facts mentioned above might support an inference that the property in question could not have been leased or sold to defendant without the inclusion of a purchase option. We find no evidence in the record, however, that the property could not have been advantageously leased or sold to someone else without such an option. Indeed, there was no testimony that the executor even attempted to negotiate a lease or sale of the property with any person other than Holland. The absence of this evidence may have been due to the fact that the trial court held that the granted power to sell did not include the power to grant an option to purchase. Because we have adopted the exception contained in the Restatement, supra, however, the defendant should be given the opportunity to offer proof that the property in question could not have been sold to someone other than Holland without the option.

We have carefully considered the other issues addressed by the parties in brief and have concluded that the points raised are without application under the facts of this case. However, in order to allow the defendant the opportunity to offer evidence under the Restatement’s exception as previously noted, we must reverse the judgment and remand the cause, and it is so ordered.

REVERSED AND REMANDED.

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


text:
    Marvin JACKSON v. James H. EVANS, as District Attorney, etc.
    78-264.
    Supreme Court of Alabama.
    Nov. 30, 1979.
    Rehearing Denied Jan. 25, 1980.

      Sterling G. Culpepper, Jr., of Smith, Bowman, Thagard, Crook & Culpepper, Montgomery, for appellant.
    Charles A. Graddick, Atty. Gen., and James F. Hampton, Asst. Atty. Gen., for appellee.
   BEATTY, Justice.

Defendant appeals from an order authorizing the condemnation of money. We reverse and remand.

On September 14,1978, defendant Marvin Jackson was arrested in a Montgomery motel room and charged with the offense of selling a controlled substance. After the arrest, Jackson’s rented car, which was parked in the motel parking lot, was searched by agents of the Alabama Alcoholic Beverage Control Board. No drugs or drug paraphernalia were found in the car, but a search of the trunk disclosed $15,600 in cash — $600 in loose bills and $15,000 contained in envelopes. The money was seized by the ABC agents and was turned over to the District Attorney of the Fifteenth Judicial Circuit. On September 22, 1978, the district attorney filed a petition to condemn the confiscated money, alleging that it “was to be used or had been used” by defendant to traffic in narcotics. In his answer, defendant alleged that the $15,600 was his property and that it was not involved in the transaction for which he was arrested. Following a hearing, the circuit court ordered the money condemned “as contraband.” Defendant’s motion for a new trial was subsequently denied.

The Alabama Uniform Controlled Substances Act specifically enumerates the types of property that may be confiscated in connection with drug-related offenses. The statute that controls in this case provides:

(a) The following are subject to forfeiture:
(1) All controlled substances which have been manufactured, distributed, dispensed or acquired in violation of this chapter;
(2) AH raw materials, products and equipment of any kind which are used or intended for use in manufacturing, compounding, processing, delivering, importing or exporting any controlled substance in violation of this chapter;
(3) All property which is used or intended for use as a container for property described in subdivisions (1) or (2) of this subsection;
(4) All conveyances, including aircraft, vehicles or vessels, which are used or intended for use to transport or in any manner to facilitate the transportation for the purpose of sale or receipt of property described in subdivisions (1) or (2) of this subsection; provided, however, that:
a. No conveyance used by any person as a common carrier in the transaction of business as a common carrier is subject to forfeiture under this section unless it appears that the owner or other person in charge of the conveyance is a consenting party or privy to a violation of this chapter;
b. No conveyance is subject to forfeiture under this section by reason of any act or omission established by the owner thereof to have been committed or omitted without his knowledge or consent; and
c. A forfeiture of a conveyance encumbered by a bona fide security interest is subject to the interest of the secured party if he neither had knowledge of nor consented to the act or omission;
(5) All books, records and research products and materials, including formulas, microfilm, tapes and data, which are used or intended for use in violation of this chapter. [Code of 1975, § 20-2-93(a)(l)-(5).]

Clearly, money does not fall within any of the foregoing categories. Because statutes authorizing condemnation and forfeiture of property must be strictly construed, Reeder v. State ex rel. Myers, 294 Ala. 260, 314 So.2d 853 (1975), we are constrained to hold that the trial court clearly erred in declaring the $15,600 to be contraband and subject to forfeiture.

Plaintiff takes the position that Walker v. State ex rel. Baxley, 285 Ala. 315, 231 So.2d 882 (1970), is controlling in this situation. The Walker case, however, is not on point, for there are important distinctions, both factual and legal, between that ease and the case at hand. In Walker, this Court upheld the condemnation of money which was found on a table along with certain lottery paraphernalia. Noting that the money was in “intimate association with and [in] close proximity to” the gambling devices, we held that the money was subject to forfeiture because it was “an accessory to and a component part of the lottery scheme.” 285 Ala. at 317, 231 So.2d at 884. That cannot be said in the instant case, for here it is undisputed that the money seized was not connected in any way with the offense for which defendant was arrested, nor was it found in close proximity to any paraphernalia associated with illegal drug use.

The reasoning employed in Walker is also unavailable to us in this case. Although there was no express provision authorizing the condemnation of money under the' pertinent gambling statute in Walker, that statute specifically referred the courts to the rules and regulations governing actions to abate liquor nuisances. See Code of 1975, § 13-7-90. Construing the gambling statute in pari materia with the statutory provision allowing the condemnation of movable property used in keeping and maintaining a liquor nuisance (See Code of 1975, § 28-4r-232), this Court held that the money could properly be condemned. The forfeiture provision applicable in this case, however, is the exclusive expression of the legislative intent as regards condemnation under the Controlled Substances Act; no reference is there made to any other provision which would allow the condemnation of any property other than that which is listed. Because money is not an item of property enumerated as being subject to forfeiture under Code of 1975, § 20-2-93(a), the legislature did not give to the district attorney any authority to seize Mr. Jackson’s $15,600.

In accord with the foregoing, the order of the Montgomery Circuit Court allowing the condemnation of the $15,600 must be, and is, reversed and remanded for proceedings not inconsistent with this opinion.

REVERSED AND REMANDED.

MADDOX, JONES, ALMON and SHORES, JJ., concur.


text:
    Vicky Renoe TERRELL v. STATE of Alabama.
    78-403.
    Supreme Court of Alabama.
    Nov. 30, 1979.
    Rehearing Denied Jan. 25, 1980.

      Myron K. Allenstein, Teresa D. Jones, Gadsden, for appellant.
    Charles A. Graddick, Atty. Gen. and Sarah Kathryn Farnell, Asst. Atty. Gen., for the State.
   BEATTY, Justice.

Defendant, Vicky Renoe Terrell, age 15, was charged with murder and armed robbery. Relying on Code of 1975, § 12-15-34, the Juvenile Court of Etowah County ordered the defendant transferred to the circuit court for trial and disposition as an adult. The transfer order was appealed to the circuit court, which, after a hearing de novo, ruled that transfer of the case to criminal court was warranted by the evidence and that there was probable cause for believing that the allegations against Terrell were true and correct. We affirm.

The narrow issue posed in this case is virtually the same as that addressed by this Court in Brown v. State, Ala., 353 So.2d 1384 (1978), and Williams v. State, Ala., 361 So.2d 1157 (1978). In essence we are called upon to decide whether the trial court’s action in ordering Terrell transferred for adult criminal treatment was “clearly erroneous” under the evidence. We hold that it was not.

Code of 1975, § 12-15-34(d) requires a trial court to consider evidence relating to six factors in determining whether to transfer a juvenile case to the circuit court. Those factors are:

(1) The nature of the present alleged offense;
(2) The extent and nature of the child’s prior delinquency record;
(3) The nature of past treatment efforts and the nature of the child’s response to such efforts;
(4) Demeanor;
(5) The extent and nature of the child’s physical and mental maturity; and
(6) The interests of the community and of the child requiring that the child be placed under legal restraint or discipline.

It is clear from the record in this case that an extensive hearing was held during which evidence pertinent to each of the foregoing factors was admitted. In its order the trial court stated that all of the statutory factors were taken into account in determining that Terrell’s case should be transferred. It appears that the court felt that the evidence concerning the seriousness of the alleged offense and the best interest of the public outweighed the evidence of Terrell’s low mental maturity (it is uncontroverted that he is mildly retarded).

After a thorough review of the entire record, we are unable to say that the trial court erred in any respect under Code of 1975, § 12-15-34, in ordering Terrell’s case transferred for criminal prosecution. Other issues raised by defendant in brief may be appropriately addressed at the circuit court level when the case is tried. The transfer order must be affirmed.

AFFIRMED.

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


author: SHORES, Justice.

text:
    Charles C. VAUGHAN et al., as Members of and constituting the Personnel Board for Mobile County, Alabama v. Dennis A. MOORE et al., as Members of and constituting the Board of Water and Sewer Com’rs of the City of Mobile, etc. et al.
    78-344.
    Supreme Court of Alabama.
    Dec. 21, 1979.
    Rehearing Denied Jan. 25, 1980.
    Mylan R. Engel, of Engel & Smith, Mobile, for appellants.
    Joe H. Little, Jr., and Christopher G. Hume, III, of Gaillard, Little & Hume, Mobile, for appellees.
   SHORES, Justice.

The Mobile County Personnel Board filed a petition for declaratory judgment against the Board of Water and Sewer Commissioners of the City of Mobile and against W. D. Bolton, challenging the right of the Water Board to employ Bolton as secretary-treasurer of the Water Board outside of the Civil Service for Mobile County. The trial court ruled that the position of secretary-treasurer is an elective office of the Water Board and does not fall within the classified service under the jurisdiction of the Mobile County Personnel Board. We affirm.

The controversy arose in this manner: Prior to the creation in the early 1950’s of the Water Board, an independent municipal corporation, the City of Mobile, itself, operated a water system, whose employees, of course, came under the merit system administered by the Mobile County Personnel Board. That board was created in 1939 by Act No. 470, Local Acts of Alabama 1939, and given jurisdiction over:

“. . . all offices, positions, and employment in Mobile County or any such city therein . . . the holders of which are paid whether by salary, wages, or fees in whole or in part from public funds of Mobile County or any such city, or the holders of which receive their com-
pensation from any elected official and perform duties pertaining to the office of such elected official or officer . . .

Act No. 470, supra, § I.

In 1951, by Act No. 775, Acts of Alabama 1951 (now Code 1975, § 11-50-340 et seq.), the legislature authorized any municipality to create a board of water and sewer commissioners. Code 1975, § 11-50-341. The Board of Water and Sewer Commissioners of the City of Mobile was then created pursuant to this statute.

When the administration of the system was transferred to the newly created Board of Water and Sewer Commissioners, employees retained the civil service status which they had previously held. Bolton’s predecessor, Oliver Sanders, retained his merit system position as comptroller after being elected secretary-treasurer by the Board of Water and Sewer Commissioners.

In 1974, the Board of Water and Sewer Commissioners requested the Personnel Board to create the civil service position of secretary-treasurer to the Water Board. When Bolton failed to pass the qualifying examination for the position, the Water Board entered into a contract with him to perform for the Board the duties of secretary-treasurer. In making this agreement the Board relied upon authority granted it by the legislature by Act No. 775, supra [now Code 1975, § ll-50-343(a)(10)], to:

“. . . make and enter into all contracts and agreements as the board may determine which are necessary or incidental to the performance of its duties and to the execution of its powers under this article, and to employ such consulting and other engineers, superintendents, managers, construction and financial experts, accountants and attorneys and such employees and agents as it may determine necessary in its judgment and to fix their compensation . . . .”

Code 1975, § 11 — 50-342(e) and (h), also authorizes the Water Board to elect its officers and compensate them for their services.

These provisions of the Water Board enabling act authorizing it to hire and set the compensation for its own employees are in obvious conflict with the above-quoted provision of the Personnel Board Act. In reconciling this conflict, we are guided by well-established rules of statutory construction.

We note first that the local act creating the Mobile County Personnel Board predates the Water Board Act. We note further that, whereas the first is a local act, the act authorizing cities to create Boards of Water and Sewer Commissioners is a general law. When provisions of general law, applicable to the entire state, are repugnant to provisions of a previously enacted special law, applicable in a particular locality only, passage of the general law does not operate to repeal the special law, either in whole or in part, unless repeal is provided for by express words or arises by necessary implication. Connor v. State, 275 Ala. 230, 153 So.2d 787 (1963), quoting 82 C.J.S. Statutes §§ 298b, c; Reid v. Wallace, 27 Ala.App. 199, 168 So. 900 (1936); Tucker v. McLendon, 210 Ala. 562, 98 So. 797 (1924).

Code 1975, § 11-50-344, of the general law authorizing water boards allows newly created water boards to retain employees of the former city waterworks without impairment of their civil service, seniority or retirement rights “insofar as practicable.’’ This express reference to local merit systems and the specific provisions set out above, authorizing the Board to enter into employment contracts indicates the legislature’s clear intent to allow the Water Board to employ Bolton outside of the merit system.

The trial court reached this result in holding that the Water Board’s actions were authorized by statute. The judgment appealed from is, therefore, affirmed.

AFFIRMED.

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


text:
    Annie JENKINS v. JEFFERSON COUNTY COMMITTEE FOR ECONOMIC OPPORTUNITY et al.
    79-47.
    Supreme Court of Alabama.
    Dec. 21, 1979.
    Rehearing Denied Jan. 25, 1980.
    David Gespass, Birmingham, for appellant.
    Edward S. Allen of Balch, Bingham, Baker, Hawthorne, Williams & Ward, Birmingham, for appellees.
   SHORES, Justice.

Appellant, Annie Jenkins, filed a complaint against the Jefferson County Committee for Economic Opportunity (JCCEO), her employer, and two of its supervisory employees, Seth O’Korley and John Windsor, alleging that she was terminated in violation of the procedures established in the JCCEO personnel manual. Defendants moved for summary judgment on the grounds that plaintiff’s employment was terminable at will by either party, regardless of the terms of the personnel manual. This motion was supported by JCCEO’s answers to plaintiff’s interrogatories and its pleadings.

The motion for summary judgment was filed May 24, 1979, and set for hearing on June 6, 1979. Nothing was filed by the plaintiff in response to the motion for summary judgment; and, following the hearing, the motion was granted and final judgment was entered in favor of all three defendants.

ARCP 56(e) provides:

“ . . . When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him.”

Defendants’ assertion that plaintiff’s employment was terminable at will stands un-controverted. Thus, they have carried their initial burden of negating any genuine issue of fact. The plaintiff, with the case in this posture, cannot rest on the allegations of the complaint. Under the rule, to avoid summary judgment against her, she must respond to defendants’ motion for summary judgment by presenting affidavits or other evidence showing a genuine issue for trial. This she did not do. Donald v. City Nation al Bank of Dothan, 295 Ala. 320, 329 So.2d 92 (1976). Therefore, the judgment is affirmed.

AFFIRMED.

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


author: TORBERT, Chief Justice.

text:
    Rosemary WATSON, Carrie Wright et al. v. McConnell N. DURR et al.
    78-258.
    Supreme Court of Alabama.
    Jan. 25, 1980.
    Michael A. Figures of Crawford, Blacksher & Figures, Mobile, Henry Sanders of Chestnut, Sanders & Sanders, Selma, for appellants.
    Robert M. Seale, Livingston, for appel-lees.
   TORBERT, Chief Justice.

On January 24, 1978, McConnell N. Durr and Joanna Walker filed an action in the Sumter County Circuit Court seeking the sale for division of a 200-acré tract of land. The land which is the subject of this action was purchased in 1906 by Calvin Kennard, the great uncle of the original plaintiff and the defendants. Calvin Kennard’s will devised the land to his two sisters, or their children. McConnell N. Durr, the original plaintiff, is the only child of one of those sisters. The other sister left seven surviving children, who were the defendants below. McConnell N. Durr sold his undivided one-half interest in the land to Tri-County Land Company after initiating this suit at Tri-County’s behest.

Appellees alleged in their complaint below that the land could not be equitably divided and the appellants agreed. Appellants argue, however, that the land should not be sold at public auction, but rather that as members of the family they should be allowed to purchase it.

The Sumter County Circuit Court ruled that the statutes were not unconstitutional and entered a decree of sale. We affirm.

Code 1975, § 35-6-20, provides:

The circuit court shall have original jurisdiction to divide or partition, or sell for partition, any property, real or personal, held by joint owners or tenants in common; whether the defendant denies the title of plaintiff or sets up adverse possession or not; and the court in exercising its jurisdiction shall proceed according to the Alabama Rules of Civil Procedure and, where necessary, allow service of process by publication as prescribed therein. [Citations omitted.]

Before a sale under this section is authorized, proof that the land cannot be equitably divided is required. Once a tenant in common has averred and proved that the parcel cannot be equitably divided, this Court has interpreted Code 1975, § 35-6-20, as giving that co-tenant the right to demand partition of the land held in cotenan-cy.

The parties to the instant suit have agreed that the land in question cannot be equitably divided; therefore, the issue with which we are presented is whether Code 1975, § 35-6 — 20, denies appellants equal protection and due process of law in violation of the United States Constitution by giving a tenant in common who wishes to sell an absolute right to force a public sale over the protests of tenants in common who wish to retain ownership of the parcel.

The rule of law which establishes a presumption in favor of the constitutionality of a duly enacted statute was enunciated by Chief Justice Gardner as follows:

Uniformly, the courts recognize that this power [to strike down a legislative act as violative of the constitution] is a delicate one, and to be used with great caution. It should be borne in mind, also, that legislative power is not derived either from the state or federal constitutions. These instruments are only limitations upon the power. Apart from limitations imposed by these fundamental charters of government, the power of the legislature has no bounds and is as plenary as that of the British Parliament. It follows that, in passing upon the constitutionality of a legislative act, the courts uniformly approach the question with every presumption and intendment in favor of its validity, and seek to sustain rather than strike down the enactment of a coordinate branch of the government. All these principles are embraced in the simple statement that it is the recognized duty of the court to sustain the act unless it is clear beyond reasonable doubt that it is violative of the fundamental law. [Citation omitted.]

Alabama State Federation of Labor v. McAdory, 246 Ala. 1 at 9, 18 So.2d 810 at 814-815 (1944). See: Alabama Dairy Commission v. Food Giant Inc., 357 So.2d 139 (Ala.1978); Jefferson County Board of Health v. City of Bessemer, 293 Ala. 237, 301 So.2d 551 (1974).

We hold that the appellants failed to sustain the burden of proving that the statute violates the United States Constitution.

The statute draws no classifications on its face, but gives every co-tenant the equal right to demand a sale for partition upon proof that the land cannot be equitably divided. The appellants failed to prove discrimination in the application of the statute. For these reasons we hold that Code 1975, § 35-6-20, does not operate to deny appellants equal protection or due process of law. In English v. Brantley, 361 So.2d 549 (Ala.1978), this Court upheld the constitutionality of Code 1940, Tit. 47, § 186 (the predecessor of Code 1975, § 85-6-20), using the following language:

This statute does not deny due process of law to appellees. It allows a co-tenant to force a sale for division only after proving the property cannot be equitably divided in kind. It provides a reasonable means of allowing all co-tenants maximum freedom in dealing with their interest in jointly owned property.

We hold that Code 1975, § 35-6-20, passes constitutional muster under the instant challenges.

AFFIRMED.

MADDOX, JONES, SHORES and BEAT-TY, JJ., concur.

      . Bragg v. Beers, 71 Ala. 151 (1881); Stein v. McGrath, 128 Ala. 175, 30 So. 792 (1900); Lyons v. Jacoway, 205 Ala. 479, 88 So. 597 (1921); Burr v. Fox, 227 Ala. 543, 150 So. 911 (1933); Raper v. Belk, 276 Ala. 370, 162 So.2d 465 (1964); Vaughn v. Thomas, 372 So.2d 1309 (Ala.1979).

      . Wood v. Barnett, 208 Ala. 295, 94 So. 338 (1922); Bedsole v. Bedsole, 272 Ala. 589, 133 So.2d 237 (1961); Raper v. Belk, 276 Ala. 370, 162 So.2d 465 (1964); Prosch v. Prosch, 47 Ala.App. 33, 249 So.2d 855, cert. denied, 287 Ala. 740, 249 So.2d 860, 287 Ala. 740, 249 So.2d 861 (1971).