author: YELVERTON, Judge.

text:
    Johnny Lafurn JACKSON, Plaintiff-Appellant, v. Janice Moon JACKSON, Defendant-Appellee-Appellant.
    No. 82-411.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 22, 1982.

      Colleen McDaniel, Lafayette, for defendant-appellee-appellant.
    Roy & Hattan, L. Lane Roy, Lafayette, for plaintiff-appellant.
    Before CULPEPPER, DOUCET and YELVERTON, JJ.
   YELVERTON, Judge.

This appeal questions some twelve rulings made by the trial court relating to the determination of community assets and liabilities and the settlement of the claims of the parties, in this protracted community property settlement litigation.

Janice Jackson (now remarried, she will hereafter be called Ms. Bell) sued Johnny L. Jackson for separation on May 17, 1977. A judgment of separation was signed June 19, 1978, followed by a divorce granted February 12, 1979 based on the husband’s adultery.

Ms. Bell filed for a partition of the community in 1978 praying for a partition in kind where appropriate and by lieitation where necessary. A court-appointed notary public was ordered to inventory the community. The return of the inventory was filed into the record in December, 1979. It showed that the assets consisted only of movables. It listed the liabilities. Jackson thereafter prayed for a partition by licitation of the movables. Ms. Bell answered by attacking the inventory as being incomplete.

A hearing was subsequently conducted on the traversal of the inventory and judgment was rendered on April 5,1982, accepting and homologating the inventory except as to twelve items, some of which were included in the inventory and some of which were not. By ruling on these twelve disputed items and homologating the remainder of the inventory, the trial court obviously intended to establish the assets and liabilities of the community and the settlement of the claims of the parties, leaving for a later determination the appraisal of the community assets and the final partition, i.e., the allocation of the assets and liabilities to the parties.

Jackson appealed certain of the twelve rulings, and Ms. Bell answered complaining of the others.

At the outset we note that the judgment of the trial court is not an appealable partial final judgment as defined by La.C. C.P. art. 1915 since it does not fall within the situations enumerated by that article. See Lee v. Lee, 375 So.2d 769 (La.App. 4th Cir.1979). However, by exercising our supervisory jurisdiction, this court has authority to review the case. See Lee v. Lee, supra at p. 772, fn. 6, and p. 773, fn. 7, and Butler v. Butler, 228 So.2d 339 (La.App. 1st Cir.1969). We chose to do so in the interest of justice, hoping that we can thereby avert another appeal, and also hoping that we can help this case toward its conclusion, for it has been already five and a half years in litigation and it needs to be terminated.

We will now discuss the twelve complaints of error which are before us.

1. The community home and rental derived therefrom.

Jackson sold the family home to his brother in May, 1977, seven days before Ms. Bell filed her suit for separation. Jackson’s brother thereafter let the house out for rent. The home was sold to third parties in October, 1979. Ms. Bell appeared in this latter sale as a vendor and shared in the proceeds. At the same time she formally ratified the May, 1977 sale to Jackson’s brother.

The trial court concluded that having ratified the sale to Jackson’s brother and having joined in and shared in the proceeds of the subsequent sale to third parties, Ms. Bell was precluded from demanding a further accounting. We find no error in this ruling.

2. The F&J Amoco property.

This immovable, a major item of the community, was purchased by Jackson and his business partner, Cox, for the price of $64,-000 in 1976, during the existence of the Jacksons’ marriage. On May 20, 1977, three days after the suit for separation was filed, an instrument was recorded in the Lafayette Parish Conveyance Records transferring Jackson’s half interest in the property to his partner Cox for a recited consideration of only $2,000. This instrument was dated May 10, which was seven days before the filing of the separation. The property was burdened by a one year old mortgage in the original amount of $51,000. There was no language in the Jackson to Cox conveyance that required the latter to assume the mortgage debt.

Two years passed after the above transaction. Then there occurred a transfer of a half interest in the property from Cox to one A.J. Arsenault. The recited consideration was again only $2,000, but this time the purchaser assumed the mortgage which then had a balance of about $43,000. It turned out, not surprisingly, that the A.J. Arsenault named in that deed was in fact the new wife of Jackson.

Ms. Bell sought an accounting from Jackson on the ground that both transactions were simulations done to defraud her. The trial court, after considering the testimony of the parties, the suspect appearance of the transactions, and Jackson’s credibility, found as follows:

“The court concludes that the sale of the F&J Amoco property was a simulation and the court will, therefore, annul the sale.”

We do not interpret the quoted language to mean that the district court was declaring the sales were simulations and nullities affecting title. To achieve that result an action in declaration of simulation must be brought and all parties with record interests in the property are indispensable parties. In the instant proceedings neither Cox nor Arsenault were parties. We interpret the trial court’s language to mean simply that the sale is to be overlooked for purposes of an accounting to the community by Jackson. This means that Jackson must account to the community for the value of the property based on its evaluation as of the time when the case is tried on its merits, and also for the net income derived therefrom subject to such credits he can prove he is entitled to based on payments made by him or on his behalf on the mortgage. We believe that the trial court’s ruling as we have interpreted it is correct.

3. Storage fees.

A number of the movables have been in storage since the separation. Jackson has been paying the storage fees. Ms. Bell contends that this expense should be paid altogether by Jackson since he has had the constructive use of the movables. The trial court concluded that storage costs were a necessary expense for the preservation of the community assets. He found this item to be a community debt. We agree that this cost is a liability of the community.

4. Community savings accounts.

There were two of these, both in the name of John T. Jackson. The first, a $10,000 account which was clearly community funds, referred to as the “Blue Chip” savings account in Guaranty Bank & Trust Company, was withdrawn in its entirety by Jackson shortly before the separation. After listening to the testimony and the failure of Jackson to explain how this money was spent, the trial court concluded that this was an item for which Jackson must account to the community. We find no error in that ruling.

The other savings account was in the amount of $4,000 in the American Bank & Trust Company. The court found this was the separate property of Jackson having been deposited two years after the legal separation. We agree with that ruling also.

5. Certain electricity and phone bills.

Jackson complains that these bills should have been found to be community obligations. The bills were dated several months after the community ceased to exist. Jackson offered no evidence to show that they were incurred prior to the separation. The trial court correctly found these bills to be Jackson’s separate liabilities.

6. The proceeds from the sale of real property in Florida.

During the marriage Jackson bought some real estate in Florida. The record reveals that he sold it in late 1980 for $13,500 less expenses of the sale in the amount of $376.50. For the stated reason that it had no jurisdiction over immovable property in Florida, the trial court refused to consider this item. This was error. The proceeds of the sale constituted movable property over which the trial court has jurisdiction. See Succession of Lodato, 250 So.2d 792 (La.App. 4th Cir.1971). The proceeds are community property and Jackson must account to the community for that item.

7. Certain trust accounts for the children.

Jackson claims that the trial court erred in finding that certain trust accounts for the children were the separate property of the children. He argues that the trust accounts had terminated, thus becoming community property. We disagree.

Trusts for the benefit of the Jackson children had been created by the maternal grandparents. Under the provisions of the trust accounts, the plans are to continue as long as the grandparents were living and were not affected by the dissolution of the community. The plan does not provide that the withdrawal of funds in whole or in part terminated a trust as Jackson argues. We agree with the lower court that the trusts had not terminated and that the funds were properly found to be the separate property of the children.

8. A Cessna airplane.

Jackson purchased a one-half interest in this plane during the existence of the community for $9,200. He sold his interest to his partner Cox on May 10, 1977, that busy day seven days before the separation, for $2,000. Although expressing some doubt that Jackson’s half interest could have depreciated so much in the eight months he was an owner of the plane, the trial court nevertheless found the sale to be legitimate, responding to Ms. Bell’s complaint that this sale, too, was fraudulent. The court made a finding, however, that the $2,000 Jackson received from the sale was a community asset, and that he must account for it. After a careful examination of the record we cannot state that the trial judge was clearly wrong in this determination.

9. Proceeds from the sales of two motor homes.

Finding against the contention of Ms. Bell, the court concluded that she could not participate in the proceeds of two mobile homes. We agree.

The trial court, concluding that “there is no responsibility concerning these motor homes”, denied the claims of both parties and their conflicting demands concerning this item. The evidence is confusing, but it appears that while the marriage was intact Jackson and his business partner Cox were engaged in an enterprise called F&J Mobile Homes which owned four motor homes under heavy mortgages. The profit from this venture was to come from rental of the mobile homes. After the marital separation this business had financial troubles and was itself dissolved, with Jackson taking title to two mobile homes and Cox taking title to the two others. Jackson subsequently divested himself of title to his motor homes at a price which he contended was less than the outstanding balances of the mortgages owed on them. As opposed to Ms. Bell’s contention that she should share in the rental income and the proceeds of the sale, Jackson contended that she should also share in the resulting loss from the sale. The trial court resolved this factual dispute by concluding that the community books balanced on these items, and that they constituted neither an asset nor a liability.

We find that the trial court was not clearly wrong in this factual determination.

10. Certain miscellaneous items.

The trial court also held that a desk formerly belonging to Ms. Bell’s grandfather, together with a silver place setting for twelve, twelve chairs and seven wine glasses and a tray which her brother had given her, were the separate property of Ms. Bell. We agree. Her undisputed testimony revealed that these objects were in the possession of Jackson but were in reality her separate property. Jackson offered no evidence to contradict her testimony in this regard.

11. A promissory note to American Bank in the amount of $1,967.50.

Jackson contended that this promissory note was a community liability. The trial court found that it was the separate debt of Jackson. We have been unable to find this promissory note in the evidence, nor can we find any testimony in the record on which a determination of the status of this debt can be based. Therefore, upon remand the trial court shall allow the taking of evidence concerning this promissory note to determine whether it is a community obligation or the separate debt of Jackson.

12. Attorney fees.

The trial court determined that each party is responsible for his own attorney’s fees. Jackson contends that attorney fees should be assessed to the community.

We agree with the trial court. In a contested partition proceeding neither party is entitled to an award of an attorney’s fee. Lane v. Lane, 375 So.2d 660 (La.App. 4th Cir.1978), writ denied 381 So.2d 1222 (La.1980). The parties failed to offer any evidence as to the amount incurred for attorney’s fees incident to their separation and divorce proceedings.

The judgment appealed from is, accordingly, affirmed, with two exceptions: (1) the judgment refusing to consider the proceeds of the Florida property is reversed, and judgment is rendered declaring the net proceeds, $13,123.50, from the sale of that property to be an asset of the community, to be accounted for by Jackson, and (2) on remand, the trial court shall allow evidence regarding the status, whether a community liability or the separate indebtedness of Jackson, of the promissory note in the amount of $1,967.50 owed to American Bank. Each party shall be responsible for one-half the costs of this appeal. The case is hereby remanded for further proceedings consistent with this opinion and consistent with Act 439 of 1982.

AFFIRMED IN PART; REVERSED IN PART; and REMANDED.

      . La.C.C.P. Article 641; Oby v. Flanagan, 356 So.2d 1047 (La.App. 1st Cir.1977).

      . In oral arguments counsel informed us that the F&J Amoco property has since been sold to third parties for over $100,000.

      . Where the issue under consideration is the classification of movable property as community or separate property of a married couple, we must look to the law of the parties’ domicile at the time of acquisition. Succession of Dunham, 408 So.2d 888 (La.1981). In the present case since both parties were domiciled in Louisiana at the time of the sale, Louisiana law is controlling. This item under consideration is the proceeds of a sale of immovable property which was acquired during the existence of the community. To determine whether the proceeds of the sale are community or separate property requires a determination of whether the Florida property before its sale and while it was still an immovable was considered community or separate. Since neither party offered a showing of what the Florida law is, this court will presume such law to be the same as Louisiana. See Johnson v. Nationwide Life Ins. Co., 388 So.2d 464 (La.App. 2nd Cir.1980). Under Louisiana law immovable property acquired during the existence of the community is presumed to be community property. McGee v. Harris, 333 So.2d 440 (La.App. 3rd Cir.1976), writ denied 337 So.2d 529 (La.1976).

      . This new legislation provides a comprehensive procedural outline for the partition of community property in contested cases and for the settlement of the claims between the spouses arising from the matrimonial regime. The recent case of Simon v. Simon, 421 So.2d 931 (La.App. 4th Cir.1982), held that Act 439 of 1982 is to be applied retroactively to partition proceedings, save as to partitions already so far under way that it would cause unnecessary expense or delay. We find that the procedural status of this case is such that the provisions of the new legislation are readily adaptable to the further conduct and windup of these proceedings.


source: Caselaw Access Project

author: LABORDE, Judge.

license: Public Domain

text:
    Alexis Ann CROOKS, Plaintiff/Defendant-in-Rule/Appellee, v. Donald A. CROOKS, Defendant/Plaintiff-in-Rule/Appellant.
    No. 82-416.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 22, 1982.

      Shelby Bohannon, Alexandria, for Donald A. Crooks.
    Trimble & Associates, Elizabeth Erny Foote, Alexandria, for Alexis Ann Crooks.
    Before DOMENGEAUX, FORET and LABORDE, JJ.
   LABORDE, Judge.

This is an appeal by the father, Donald A. Crooks, from a judgment dated May 14, 1982, denying his request to have the custody of the minor child, Crystal Ann Crooks, transferred to him and conditioning his visitation privileges upon his bringing current the arrearages in child support payments and keeping them current. The issues on appeal are: 1) whether the maintaining of permanent custody with the mother, Alexis Ann Crooks, is in accordance with the best interest of the child; 2) whether the trial court erred in conditioning Donald’s visitation privileges upon his paying child support. We hold the trial court did not abuse its discretion in denying the request for a change in the custody of the child. However, Donald’s visitation privileges cannot be made conditional upon his payments of child support. Hence, we affirm in part and reverse in part.

Donald and Alexis were divorced on June 20, 1980. At that time, custody of the only child of their marriage, Crystal Ann Crooks, was awarded to Alexis. In that judgment no visitation privileges were awarded to Donald. Subsequently, both parties remarried and Donald, now residing in Willis, Texas, filed a Rule to Show Cause why the custody of their child should not be changed to him and petitioned the court to set reasonable visitation privileges.

After a hearing, the trial court rendered judgment in favor of Alexis, dismissing the claim of Donald for custody of the minor child and awarding said custody to Alexis. Additionally, Donald was granted visitation privileges with the minor child, “at reasonable times and reasonable circumstances, including two weeks during the summer season at his home and at his expense, conditioned upon his bringing current the arrear-ages in child support payments and keeping them current.”

CUSTODY OF THE MINOR

Louisiana Civil Code Article 157 provides the applicable law concerning an award of custody. That Article, in pertinent part, provides:

“In all cases of separation and divorce, permanent custody of the child or children shall be granted to the husband or the wife, in accordance with the best interest of the child or children.”

The issue on appeal then, is whether the trial court’s judgment granting permanent custody to the mother is in the best interest of the child.

The standard of appellate review of custody cases was recently discussed by our Supreme Court in Bordelon v. Bordelon, 390 So.2d 1325 (La.1980). The court at page 1329 announced:

“[5] This Court has clearly stated that in child custody cases, the procedure for appellate review is to give great weight to the determination of the trial judge, and to overturn a determination only whén there is a clear abuse of discretion. Fulco, supra [Fulco v. Fulco, 259 La. 1122, 254 So.2d 603 (1971)]; Cleeton v. Cleeton, 383 So.2d 1231 (La.1980). This test is substantially similar to the rule applied by the appellate court, which prevents the upsetting of a trial court determination of fact unless it is “clearly wrong”. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). Under these rules, a conclusion reached by a trial court derived from the facts is entitled to just as much weight as a conclusion that certain evidence establishes a fact.”

Armed with the standard of review, we now proceed to review the record.

The trial judge found and the record supports that both parents at present are fit to have custody. The trial judge gave well articulated reasons, reproduced below, for awarding custody to Alexis. Since we cannot improve on the reasons given which are fully supported by the record, we adopt them as our own:

“We’ve heard from a number of witnesses on both sides and from the parties themselves, and the Court has had a very informal visit with young Crystal in chambers.
Even though we have had a number of witnesses, I have gotten glimpses of the lifestyles of both parties to this lawsuit. There may be open — there may be gaps and even deep ones that the Court has not been able to penetrate. However, I’ve tried to read between the lines and add up everything so as to get a picture of the competing parties.
On the one hand you have the father, Mr. Crooks, who desires to be awarded custody of the child. Actually, his track record has not been too good in terms of closeness with the child or affinity. And also not too good with respect to attitude toward responsibility of supporting the child. That is obvious from all the testimony that’s before the Court.
The Court is impressed, however, with Mr. Crook’s present situation — his present wife and their home life and their devotion to the eleven year old child of Mr. Crooks by a previous marriage, their ability to support the child and their apparent willingness to do so, and the Court does certainly take that into account. On the other hand, the mother of the child has now remarried and here again, her track record has not been too good, not because of her lack of affinity toward the child or even apparent affection for the child but her personal life style is such as to not impress the Court in her particular handling of the child, certainly in the past, has left a great deal to be desired. However, here again, the Court is impressed with Mrs. Alexis Ann Walls’ present marriage, and with her present husband, and for whatever reason — and I do think the intervention of the Child Protection Agency played some part in this — but in any event, for the last couple of years or so, certainly the mother of the child has — has improved considerably toward her lifestyle, her conduct and her attitude toward the child.
In view of the fact that the child has been with the mother virtually all of its life — she has only spent some short few weeks with the father, and has, in fact, not seen the father in many, many, many months — the Court feels that, taking everything into account, and with some slight worry as to the real stability and surety of an inspirational homelife and guidance and lifestyle for the child for either standpoint, but with sufficient assurance based on the current status of the parties, we feel that the best interest of the minor, Crystal, would be served and will be served by continuing the custody with her mother. The Court simply feels that a change of custody and the trauma and ramifications associated therewith, it is just not justified on the basis of the record that the Court has in front of it. .. ”

VISITATION RIGHTS

Donald contends the trial court erred in conditioning his visitation privileges on his bringing current the arrearages in child support payments and keeping them current.

In Duplantis v. Monteaux, 412 So.2d 215, (La.App. 3rd Cir.1982), we adopted the following observation as our own:

“A divorced father is ordinarily entitled to visitation with his minor child, when custody has been awarded to the mother. However, this right may be regulated, limited, or completely taken away by the court when the father’s conduct in exercising the right could injuriously affect the child....” Larroquette v. Larroquette, 293 So.2d 628, (La.App. 4th Cir.1974), (Emphasis added)

Also, it is well settled that the paramount consideration in determining visitation rights following a separation or divorce is the welfare of the child. Gowins v. Gowins, 391 So.2d 48, 49 (La.App. 3rd Cir.1980); Reavill v. Reavill, 370 So.2d 175, 177 (La.App. 3rd Cir.1979).

In the case at hand, the trial court tried to enforce the payment of child support by conditioning Donald’s visitation privileges upon its payment. Visitation privileges are a right of the non-custodial parent limited only by the concerns for the welfare of the child. The record discloses the conduct of Donald when visiting with Crystal is not detrimental to her welfare. The trial court concluded the above when it awarded visitation privileges to Donald. The enforcement of child support and visitation privileges should be separate. The Code of Civil Procedure provides an adequate remedy for the enforcement of child support. LSA-C. C.P. Article 3945.

We agree with the trial court in that it must look out for the child’s emotional and moral welfare, however, we find the trial court abused its discretion in conditioning the visitation privileges on Donald’s payment of child support.

For the above and foregoing reasons we reverse that part of judgment which conditions the award of visitation privileges upon Donald Crooks bringing current the arrear-age in child support payments and keeping them current. In all other respects the judgment appealed from is affirmed. The costs of this appeal are assessed equally between appellant and appellee.

AFFIRMED IN PART AND REVERSED IN PART.


author: STOKER, Judge.

text:
    ACADIAN HERITAGE REALTY, Plaintiff-Appellee, v. CITY OF LAFAYETTE, et al., Defendants-Appellants.
    No. 82-558.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 27, 1982.

      J. Minos Simon, Lafayette, for plaintiff-appellee.
    Yoorhies & Labbe, Marc W. Judice, Lafayette, for defendants-appellees-appellants.
    Domengeaux & Wright, Bob F. Wright, Lafayette, for defendants-appellants-appel-lees.
    Before GUIDRY, FORET and STOKER, JJ.
   STOKER, Judge.

MOTION TO DISMISS

The plaintiff-appellee, Acadian Heritage Realty (Acadian), moves to dismiss the appeals of the defendants, the City of Lafayette, Jerry Trumps, Glenn Weber, and The Daily Advertiser Independent, Inc., d/b/a The Daily Advertiser. The defendants appeal from a judgment rendered by the Honorable Guy E. Humphries, Jr., Judge Ad Hoc for the Fifteenth Judicial District, dismissing a rule for constructive contempt brought by the plaintiff, Acadian.

At the request of the judges of the Fifteenth Judicial District themselves, the Supreme Court ordered them recused in this case. Judge Humphries was assigned as Judge Ad Hoc, and heard the rule in which the plaintiff charged the defendants with constructive contempt of court. Judge Humphries dismissed the rule. After judgment on the contempt rule dismissing the rule, defendant The Daily Advertiser Independent, Inc., obtained on August 11, 1982, an order of appeal from Judge Ronald Cox, one of the recused judges. On August 16, 1982, defendants City of Lafayette, Jerry Trumps, and Glenn Weber obtained an order of appeal from Judge John Rixey Mouton, Sr., also one of the recused judges. On September 9, 1982, the latter defendants obtained an additional order of appeal from Judge Humphries. (The newspaper did not obtain an appeal order from Judge Hum-phries.) Plaintiff-appellee Acadian filed motions to dismiss the two appeals thus granted.

The appellee contends that:

1. Because of the recusation order, Judge Cox and Judge Mouton were without power or authority to grant the appeals.

2. The appeal order signed by Judge Humphries is null, and the trial court became divested of jurisdiction over the litigation by the appeal order signed by Judge Mouton.

3. The appeal of the City of Lafayette, Jerry Trumps, and Glenn Weber is frivolous and presents nothing for review by the Court of Appeal.

Before dealing with Acadian’s contentions we note an issue, not raised by the parties, which should be addressed. The appellants prevailed in this matter. Acadi-an lost and the judgment was in favor of appellants. However, The Daily Advertiser was condemned to pay all costs of the contempt rule. Ordinarily parties who prevail in the trial are deemed to have no right of appeal as they are not parties “aggrieved” by a judgment. The test of aggrievement has been applied broadly. See, for example, our decision in Brock v. Tidewater Construction Company, 318 So.2d 100 (La.App. 3rd Cir.1975).

In our opinion defendants-appellants City of Lafayette and its two employees have shown sufficient possibility that they have been aggrieved by the trial court’s judgment and that the matter should be considered on its merits. Whether they have actually been aggrieved by the trial court’s judgment will be reserved for consideration on the merits. The Daily Advertiser is “aggrieved,” if for no other reason, because it was assessed with the costs of the contempt rule.

Although we do not reach the merits, we will point out that the record reveals the reason for the appeals, at least insofar as concerns the City of Lafayette, Jerry Trumps and Glenn Weber. The written reasons for judgment of the trial court (Judge Humphries) contains the following conclusion:

“There is no evidence that the City of Lafayette and its two (2) employees, Mr. Trumps and Mr. Weber, did anything that could be considered as contemptuous conduct. The Court, therefore, holds that they have not committed any acts of contempt.” (Emphasis added)

Contrary to this conclusion concerning the City, Trumps and Weber, Judge Hum-phries held that the Daily Advertiser was guilty of contemptuous acts through publications which appeared in its newspaper. However, the judge concluded that the newspaper could not be punished because of the strong protection afforded by the First Amendment to the U.S. constitution.

The judgment presented to Judge Hum-phries following his reasons for judgment contained the following language:

“When after hearing the evidence, the Court believing that contemptuous acts have been proven but that they do not constitute a clear present and eminent danger to the due administration of justice ...”

This language in the judgment clearly applied only to The Daily Advertiser and not to the City, Trumps and Weber. These parties brought a rule seeking to have the judgment amended to reflect that they were not guilty of contemptuous acts at all and that language quoted from the judgment applied only to the newspaper. Judge Humphries refused to grant the requested relief.

In their written petition for appeal the City of Lafayette, Trumps and Weber recited the above facts and limited their petition of appeal to a request that the judgment be reformed to conform to the written reasons for judgment. In other words, these three appellants are appealing the judgment because it carries the clear imputation that they had been guilty of acts contemptuous of the court.

The Daily Advertiser is in a different position altogether. Judge Humphries in his written reasons held they were guilty of contemptuous acts. Hence, the wording of the judgment does apply to them. Certainly, under the tests discussed in Brock v. Tidewater Construction Company, supra, the newspaper should be allowed to have the trial court’s holding considered on appeal despite the fact that the trial court held it could not be punished (and therefore no judgment could be rendered against it.) We, of course, express no opinion as to the merits of the matter.

In one sense the judgment was actually adverse to The Daily Advertiser. The newspaper was assessed with all the costs of the proceedings. In his reasons for judgment Judge Humphries commented: “Because the conduct of The Daily Advertiser has brought about this particular litigation, the Court is of the opinion that it should be and is east for costs of this particular rule.” The judgment so provided. We make no comment on this ruling, but we do hold that it makes the judgment appealable as to The Daily Advertiser on this issue at least.

Therefore, we are of the opinion that appellants are aggrieved by the trial court’s judgment, and they are not barred from appealing simply because the judgment appealed from was in their favor dismissing the contempt rule brought by Acadian. However, for reasons we will explain, the appeal of The Daily Advertiser must be dismissed for failure to timely take a valid appeal. As noted above, The Daily Advertiser’s order was signed by Judge Ronald Cox only, and he was a recused judge.

We will now consider the contentions made by Acadian in support of its motions to dismiss the appeals.

THE RECUSED JUDGES LACKED THE POWER OR AUTHORITY TO GRANT APPEALS

The plaintiff cites two cases which would seem to require that the appeals be dismissed because the orders were granted by recused judges. In State v. Price, 274 So.2d 194 (La.1973), the State failed to file an appellate record before the legal return date and instead asked for an extension of time from a District Judge who had recused himself. The pertinent language is as follows:

“Articles 916 and 919 of the Code of Criminal Procedure recognize the right of the “trial court” to extend the return date. Judge McClendon was a judge of that “trial court”, but he had been re-cused “in the case”. The power and authority for him to act as judge in this particular case for any and all reasons ceased at the moment of recusal. Art. 673, C.Cr.P. With the appointment of Judge Caldwell as judge ad hoc, the power and authority to act in this case vested in Judge Caldwell. Art. 676.
“These provisions of the Code of Criminal Procedure are based upon similar provisions in the Code of Civil Procedure, and interpretation of the latter provisions is pertinent here. It has long been recognized in our civil procedure that once a judge is recused, or a motion for his recu-sal has been filed, he has no power to act (except to appoint the proper person to sit ad hoc when the law provides for such an appointment). Any action taken by a recused judge is an absolute nullity. State v. Judge of Twenty-First Judicial District, 37 La.Ann. 253 (1885); State v. Judge of Twenty-Second Judicial District Court, 39 La.Ann. 994, 3 So. 91 (1887); Jones v. Cunningham, 157 La. 208, 102 So. 309 (1924); State v. Savoy, 207 La. 982, 22 So.2d 402 (1945).
“In considering the particular action taken by a recused judge, our courts have made no distinction between ministerial and judicial acts. We have determined that no action may be performed by the recused judge. Jones v. Cunningham, supra; State v. Savoy, supra. The theory of recusation is based upon public policy, for it is applied not only for the protection of the litigants but generally to see that justice is done by an impartial court. It is, therefore, for the sake of appearance to the general public as well as protection against the acts themselves that a judge be prohibited from any activity in a case in which he has been recused. Furthermore, since the extension of a return date requires the exercise of discretion or judgment, there can be no argument that this act was simply ministerial. The order of the judge ad hoc admits of the discretionary right of the extension of the return date of the appeal by the trial court. Moreover, mandamus could not lie to compel extension of a return date although our law thoroughly protects by other procedures the right to a late lodging of an appeal where the tardiness in lodging the appeal is assessed against court personnel.”

Although State v. Price, supra, was a criminal case, the court’s opinion made it clear that the principle applied equally to civil cases.

In Jones v. Cunningham, 157 La. 208, 102 So. 309 (1924), a District Court judge was himself the plaintiff and recused himself in the case. He was unable to obtain the services of another judge to act as judge ad hoc. Under the circumstances the judge in his individual capacity (acting through his attorneys) appeared in court before himself in his judicial capacity and moved for a preliminary default.

On the question of the power of a recused Judge to rule on a motion of preliminary default, the Court interpreted the Code of Practice, article 311, reasoning:

“I do not think it is necessary, for the purposes of this application, to decide whether the entry of a default is a ministerial or a judicial act.

The Code of Practice, art. 311, reads:

“Such judgment may be obtained by moving for it in court, but it consists merely in a statement on the records of the court, showing that the defendant has failed to appear.” (Writer’s italics.)
The “records of the court” referred to in the article are the minutes of the court; and an entry on the minutes of the court showing that default has been taken is essential. Adler v. Wolff et ah, 36 La.Ann. [169] at page 175. The default is “obtained” by “moving for it in court”; that is to say, by appearing in court before a judge authorized to preside over the tribunal, and empowered to hear and determine the issues between the parties. Quoad the two cases referred to in his application, relator is clearly without such authority or power. When the orders of recusation were entered, relator’s functions became confined solely to the selection of a judge ad hoc to try the cases, and to review and revise the order appointing the judge ad hoc. State v. Woods, 124 La. 738, 50 So. 671. He was stripped of all other authority and power, including the power to grant a preliminary default, which is one of the steps provided by law in the hearing and determining of causes between litigants.”

By similar token, our Code of Civil Procedure article 2121, states: “An appeal is taken by obtaining an order therefor ... from the Court which rendered the judgment.” Applying the reasoning of Jones, “from the court” means that an order of appeal must be granted by a Judge authorized to preside over the tribunal and empowered to hear and determine the issues between the parties.

For the reasons given in the Price and Jones cases we are of the opinion that the recused judges lacked the power or authority to grant the appeals.

THE ORDERS OF APPEAL SIGNED BY THE RECUSED JUDGES DID NOT DIVEST THE TRIAL COURT OF JURISDICTION

We find no merit to Acadian’s second contention — the contention that Judge Humphries’ order of appeal was a nullity because the order of appeal signed by Judge Mouton divested the trial court of jurisdiction. On the contrary Judge Mouton’s order of appeal was null because he was recused with the consequencies related above. Hence, Judge Humphries’ order of appeal as to the City, Trumps, and Weber was valid.

THE APPEAL OF THE CITY AND ITS EMPLOYEES IS NOT FRIVOLOUS AND DOES NOT FAIL TO PRESENT ANY ISSUE FOR REVIEW ON APPEAL

A third ground of dismissal urged alternatively by Acadian, the plaintiff-appellee, is that with respect to the City of Lafayette and its two employees the appeal is frivolous and presents nothing for review on appeal. Acadian takes the position that these appellants were vindicated by the trial court and the contempt rule was dismissed as against them. They were not assessed any costs.

Without treating the procedural questions of whether an appeal may be dismissed on the ground that it is frivolous, we observe that we have already answered Acadian’s complaints in this regard. Actually, it is clear from Acadian’s motion that this third ground for dismissal, urged alternatively, is that, having prevailed, these three defendants have nothing to complain of on appeal. For the reasons we have given above this ground is without merit.

Parenthetically we observe that Acadian has construed too narrowly the relief sought by the City, Trumps and Weber. The final paragraph of Acadian’s motion as to them summarizes Acadian’s position:

“The appeal taken by these appellants presents to this court appellants’ desire to have Judge Humphries’ written reasons for judgment included in the judgment of dismissal, and nothing else. Appellants’ appeal therefore presents no issue legally cognizable by this Honorable Court, for as much as the Code of Civil Procedure prohibits including the reasons for judgment in a formal judgment. Appellants’ appeal is therefore frivolous.”

The trouble is that the judgment signed by Judge Humphries did include a portion of his reasons for judgment. The City and its employees contend that the portion of the reasons for judgment included in the judgment does not conform to the written reasons for judgment. We agree that written reasons should not be included in a formal judgment. LSA-C.C.P. art. 1918. Had the trial court’s judgment not made reference to its findings as it did, the City and its employees would have no complaint. As noted, however, the judgment did state findings which these three appellants urge in their appeal is incorrect as to them. They want the reference to findings of contempt to be stated correctly (as they see it) or left out entirely.

For the foregoing reasons mover has too narrowly construed the relief sought on appeal by the City, Trumps and Weber.

CONCLUSION

For the foregoing reasons the motion to dismiss the appeal of The Daily Advertiser Independent, Inc., d/b/a The Daily Advertiser is granted for failure of this appellant to timely appeal. Accordingly, the appeal of this appellant is dismissed. The motion to dismiss the appeal of the City of Lafayette, Jerry Trumps, and Glen Weber is denied.

The costs of this proceeding are assessed one-half to Acadian Heritage Realty and one-half to The Daily Advertiser Independent, Inc.

MOTION DENIED AS TO CERTAIN APPELLANTS; GRANTED AS TO THE ONE APPELLANT.


author: FORET, Judge.

text:
    Sam V. FERACE, Jr., et ux., Plaintiffs-Appellees, v. Bruce Evans FULLERTON, et al., Defendants-Appellants.
    No. 82414.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 28, 1982.

      Robert Levy, Alexandria, for defendant-appellant.
    Eugene P. Cicardo, Alexandria, for plaintiff-appellee.
    Before DOMENGEAUX, FORET and LABORDE, JJ.
   FORET, Judge.

Sam V. Ferace, Jr. and his wife, Camille Jean Gremillion Ferace, brought suit against Bruce Evans Fullerton and Un Hve Fullerton for specific performance of a written contract to buy and sell immovable property situated in Rapides Parish, Louisiana. They further seek damages against the defendants for their alleged failure to take title to the property at the date and time specified by the contract.

Plaintiffs allege that the closing was to be accomplished on or before September 1, 1980, and that they were in fact ready, willing, and able to convey title to the property to the defendants, but that defendants nevertheless failed to meet with plaintiffs on the appointed date to consummate the transaction.

Defendants allege that plaintiffs attempted to vary the terms of the contract prior to the closing and defendants have specifically pleaded the affirmative defenses of error, mistake, estoppel, and failure of the plaintiffs to minimize damages.

Trial was held on September 29, 1981, and judgment was rendered in favor of plaintiffs ordering defendants to take title to the property for the sum of Sixty-Seven Thousand, Five Hundred and No/100 ($67,-500) Dollars, maintaining a vendor’s lien on the property in favor of plaintiffs and further awarding plaintiffs damages “for interest at the rate of ten percent (10%) per annum from September 1, 1980, until paid, on the sum of FIFTY-FOUR THOUSAND NINE HUNDRED EIGHTY-SEVEN AND 78/100 DOLLARS ($54,987.78)”.

From this adverse judgment, defendants have appealed.

Although counsel for defendants has enumerated several issues for resolution on appeal, we find it unnecessary in this case to discuss any of them at the present time with the exception of the following:

Did the trial judge commit reversible error by refusing to admit parol evidence offered by defendants to prove their defenses of error or mistake?

ADMISSIBILITY OF PAROL EVIDENCE

Defendants, in their original answer and answer to supplemental and amended petition, urged the affirmative defenses of error and mistake in that plaintiffs made material misrepresentations to them concerning the closing of this sale of immovable property. In an attempt to prove these defenses to plaintiffs’ action, defendants, at trial, attempted to introduce parol evidence, which evidence was excluded by the trial court.

At the heart of each of these defenses is consent. A contract lacking consent is invalid. Where consent has been produced by error, that consent may be vitiated and the contract invalidated. LSA-C.C. Articles 1819 and 1820. Elaborating on 1819 and 1820, Articles 1821 and 1826 provide as follows:

“Art. 1821. Error of fact
Art. 1821. That is called error of fact, which proceeds either from ignorance of that which really exists, or from a mistaken belief in the existence of that which has none.”
“Art. 1826. Knowledge of motive by other party
Art. 1826. No error in the motive can invalidate a contract, unless the other party was apprised that it was the principal cause of the agreement, or unless from the nature of the transaction it must be presumed that he knew it.”

The jurisprudence is well established that under these code articles, “A contract may be invalidated for unilateral error as to a fact which was a principal cause for making the contract, where the other party knew or should have known it was the principal cause, . .. ”. Savoie v. Bills, 317 So.2d 249 (La.App. 3 Cir.1975), writ dismissed on joint motion (La.1975); Nugent v. Stanley, 336 So.2d 1058 (La.App. 3 Cir.1976); Sylvester v. Town of Ville Platte, 218 La. 419, 49 So.2d 746 (1950).

While it is true that parol evidence is generally inadmissible to vary or alter the terms of a written agreement, it is admissible for the purposes of establishing that an agreement is subject to annulment because of a lack of consent due to misrepresentation and error. Sylvester v. Town of Ville Platte, supra; Overby v. Beach, 220 La. 77, 55 So.2d 873 (1951); American Creosote Company v. Springer, 257 La. 116, 241 So.2d 510 (1970).

Parol evidence concerning representations which the proposed seller made to the proposed buyer is admissible for the purposes of establishing that the contract to sell is subject to annulment because of lack of consent due to misrepresentation. LSA-C.C. Articles 2236, 2276; Nugent v. Stanley, supra; Ortego v. Lebert, 406 So.2d 253 (La.App. 3 Cir.1981).

Defendants further contend that the writing was only part of an entire oral contract and that parol evidence should have been admitted to ascertain the nature of that oral contract. Along with the other exceptions heretofore discussed, it is a well-established exception to the parol evidence rule that, as between the parties to a written instrument, parol evidence is admissible to show that the writing is only part of an entire oral contract. Hyatt v. Hartford Accident and Indemnity Company, 225 So.2d 102 (La.App. 3 Cir.1969); McCarthy v. Plaisance, 286 So.2d 454 (La.App. 1 Cir.1973), writ refused, 289 So.2d 156 (La.1974).

Additionally, defendants urge that the sale was to be consummated via an act of sale with assumption of mortgage and that the amount outstanding to be assumed had been agreed to by the parties. They further state that subsequent to the execution of the contract to buy and sell, plaintiffs withdrew certain monies from an escrow account with the mortgage holder which would have caused the amount to be assumed to be substantially higher than the amount agreed upon. There can be little doubt that defendants’ principal cause for entering into the contract in question was to secure the property listed for the therein stated price. Any alleged alteration of the purchase price would bear upon defendants’ principal cause for entering into the contract, and, as such, parol evidence would be admissible to prove that fact and possibly a resultant failure of consent.

The agreement itself lends little help to the problem since it nowhere speaks of a sale with assumption of mortgage and, in fact, recites that the consideration for the sale is to be SIXTY-EIGHT THOUSAND AND NO/100 ($68,000) DOLLARS, with FIVE HUNDRED ($500) DOLLARS due at the time of entering into the contract to buy and sell and the balance to be “paid in full” at the closing.

Parol evidence is admissible to show intent when the contract is ambiguous and to show motive for execution of the contract. Lafleur v. Travelers Insurance Co., 236 So.2d 251 (La.App. 3 Cir.1970); Lopez v. Broussard, 308 So.2d 837 (La.App. 3 Cir.1975). Considering the defendants’ allegations of error, mistake, and misrepresentation, and in light of the sparse record now before us, this Court is not at all certain as to just exactly what was the agreement entered into by these parties. Parol evidence should have been admitted to allow defendants to show (if they can) that the sale was to be a sale with assumption as opposed to some other mode of conveying the property and to prove the true intent, motive and agreement between the parties. The trial judge, therefore, in failing to allow defendants to present parol evidence to prove their allegations, fell into reversible error.

For the foregoing reasons, the judgment appealed from is set aside and the case is remanded to the trial court for further proceedings consistent with the view herein expressed.

Costs of this appeal are assessed against plaintiffs-appellees; costs in the trial court shall await final disposition of this matter.

REVERSED AND REMANDED.


text:
    Lawrence THOMAS, Plaintiff-Appellant, v. Harold KENTON, Jr., et al., Defendants-Appellees.
    No. 82-342.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 28, 1982.
    Pucheu, Pucheu & Pucheu, John H. Pu-cheu, Eunice, for plaintiff-appellant.

      Jones, Patín, Tete, Nolen & Hanchey, William R. Tete and Gregory P. Massey, Raggio, Cappel, Chozen & Berniard, Richard B. Cappel, Lake Charles, for defendants-appellees.
    Before DOMENGEAUX, FORET and LABORDE, JJ.
   FORET, Judge.

Plaintiff filed this tort action or, alternatively, workmen’s compensation action, seeking either damages or compensation benefits. Made defendants herein were Hercules, Inc., plaintiff’s employer, Harold Kenton, Jr., C. Doyle Miller, and John R. Bohannon, officers of Hercules, Inc., and Dr. Boyd M. Woodard, the plant physician for defendant, Hercules.

Petitioner alleges that he suffers from a condition or disease known as Boeck’s Sar-coid, and that during his employ at Hercules, this condition became progressively worse, resulting in a steady decrease in his lung capacity, which eventually necessitated him to discontinue his employment. Plaintiff alleges that the cause of his permanent disability was the nature of his duties at Hercules, or the conditions under which he worked, or both.

Claiming tortious conduct on the part of the defendants under LSA-C.C. Articles 2315 and 2316, petitioner alleges that defendants were negligent in the following particular manner:

“That the negligence, imprudence and want of skill of the defendants include, but is not limited to, the following:

A. In failing to inform petitioner of information they possessed indicating the progressive deterioration of his condition and the steady decrease in his lung capacity.
B. In failing to warn petitioner of the danger of a person with his condition continuing to perform the job he was performing, particularly since defendants had information indicating the progressive deterioration of petitioner’s lung capacity and knew or should have known of the danger to his health.
C. In failing to take any action to avoid, prevent, reduce or mitigate the progressive deterioration of petitioner’s condition and the steady decrease of his lung capacity even though they knew or should have known of the progressive decrease of his lung capacity and of the danger of his health.
D. In failing to provide petitioner with a safe place to work even though they had information indicating the steady decrease of his lung capacity and knew or should have known this was caused by or related to the conditions under which he was working.”

Defendants herein filed exceptions of no cause of action to plaintiff’s tort claim, which exceptions were sustained. Plaintiff’s tort suit against all defendants was dismissed, and plaintiff was permitted to prosecute his alternative workmen’s compensation claim.

From this adverse judgment, plaintiff has appealed.

ISSUES

The issues herein presented are the following:

(1) Is plaintiff’s remedy one in workmen’s compensation or tort?
(2) Has plaintiff stated a cause of action against defendant, Dr. Boyd M. Woodard?

EXCEPTION OF NO CAUSE OF ACTION FILED BY HERCULES, KENTON, MILLER, AND BOHANNON

Plaintiff alleges that the negligent acts above quoted from his petition caused his condition or disease to worsen, resulting in his alleged disability.

Ordinarily, workmen’s compensation is the sole remedy of an employee who, through injury or occupational disease arising out of his employment, becomes disabled. This exclusivity is established by LSA-R.S. 23:1032 which provides in part:

“R.S. 23 § 1032. Exclusiveness of rights and remedies; employer’s liability to prosecution under other laws
The rights and remedies herein granted to an employee or his dependent on account of an injury, or compensable sickness or disease for which he is entitled to compensation under this Chapter, shall be exclusive of all other rights and remedies of such employee, his personal representatives, dependents, or relations, against his employer, or any principal or any officer, director, stockholder, partner or employee of such employer or principal, for said injury, or compensable sickness or disease.” (Emphasis ours.)

It is clear that the only statutory exception to the exclusivity of workmen’s compensation is for intentional torts. Courtney v. BASF Wyandotte Corporation, 385 So.2d 391 (La.App. 1 Cir.1980), writ denied, 386 So.2d 359 (La.1980).

Plaintiff alleges in his petition that at all material times herein he was employed by Hercules, Inc. He alleges that the negligent conduct on the part of Hercules and/or its executive officers caused a deterioration in his condition. Nowhere in his petition does he allege an intentional tort which would remove him from the exclusivity provision of LSA-R.S. 23:1032. Without allegations of an intentional tort, plaintiff’s exclusive remedy is in workmen’s compensation. Courtney v. BASF Wyandotte Corporation, supra; Bazley v. Tortorich, 397 So.2d 475 (La.1981).

In considering an exception of no cause of action, all well-pleaded facts in the petition must be taken as true and, if the allegations set forth a cause of action in any respect, the exception must be overruled. Pence v. Ketchum, 326 So.2d 831 (La.1976); Eschete v. City of New Orleans, 258 La. 133, 134, 245 So.2d 383 (La.1971); Elliott v. Dupuy, 242 La. 173, 135 So.2d 54 (1961).

Taking the facts alleged by plaintiff in his petition and considering the applicable law, we find that the trial court properly sustained the exception of no cause of action filed by Hercules, Kenton, Miller and Bohannon, dismissing plaintiff’s suit in part against them. Furthermore, the trial court properly allowed plaintiff to proceed on his alternative demand for workmen’s compensation.

To create a cause of action in tort, plaintiff attempts to rely on the case of Dornak v. Lafayette General Hospital, 399 So.2d 168 (La.1981), wherein defendant employer conducted a pre-employment examination of a prospective employee and detected a tubercular condition during the said examination, but failed to disclose the condition to the prospective employee. The prospective employee was subsequently hired and, “During her employment, she experienced a persistent cough, nasal drip and hoarseness in her voice which progressively worsened . . . She later, through her own physician, was advised of her condition.

Holding that there are certain instances wherein a duty to disclose is imposed upon an employer, the Louisiana Supreme Court therein stated:

“We recognize at the outset that an employer generally owes no duty to a prospective employee to ascertain whether he or she is physically fit for the job sought.
We conclude in the instant case that under the general principles of tort liability enunciated in La.Civ.Code arts. 2315 and 2316, defendants owed a duty to plaintiff to disclose the tubercular condition discovered during her pre-employment physical examination. The check [sic] x-ray revealing plaintiff’s condition was under the care and custody of the hospital and its assistant administrator (Grun). To notify plaintiff of the findings would have been a simple matter not requiring the professional skill of a physician and not imposing an undue burden upon an administrative or personnel official of the hospital. While we do not consider that the hospital had any obligation to give plaintiff a pre-employment physical examination, once it undertook to do so and subsequently employed her, she was entitled to and did rely upon the expectation that she would be told of any dangerous condition actually disclosed by that examination, especially considering the fact that she was employed by the hospital to perform duties placing her in contact with co-employees and hospital patients.” (Emphasis ours.)

While we agree with the above quoted language, given the particular facts and circumstances of Dornak, we find that it is inapplicable to this case. The Supreme Court, by its own terms, limited its holding in Dornak to pre-employment physical examinations. Here, plaintiff does not allege a breach of duty to disclose a condition discovered at a pre-employment examination. Plaintiff, having failed to make these allegations, has not pleaded himself into the narrowly defined rule enunciated in Dor-nak.

CAUSE OP ACTION AS TO DR. WOODARD

Plaintiff also seeks recovery in tort against Dr. Woodard, the plant physician. Dr. Woodard excepts to plaintiff’s petition on the ground that plaintiff has failed to allege any duty owed by the doctor to the plaintiff. The crux of his argument is that if no doctor-patient relationship existed between plaintiff and the doctor, then there was no duty of disclosure to be breached.

The same discussion which we have heretofore made concerning the requisites for making a determination as to whether an exception of no cause of action should be sustained are applicable here and our only inquiry is whether, considering all the well-pleaded facts in plaintiff’s petition as true, he has stated a cause of action against Dr. Woodard. Pence v. Ketchum, supra; Eschete v. City of New Orleans, supra; Elliott v. Dupuy, supra.

Plaintiff herein saw Dr. Woodard as part of a program wherein employees of Hercules underwent physical examinations on a yearly basis or at least every two years. This particular examination was not initiated by complaints of the plaintiff, but merely as part of the regular check-up procedures of Hercules. Therefore, Dr. Woodard was not seeking to examine the plaintiff for any particular ailment, but merely to ascertain his overall health. Plaintiff was not a private patient of the doctor.

Dr. Woodard was retained by Hercules, and he spent three half-days per week at Hercules’ plant for the purpose of conducting these physical examinations. In his deposition, John R. Bohannon, the employee relations manager in charge of overseeing the medical department, testified that the physical was “not an extremely thorough physical examination” and likened it to “the sort of physical a person would take for the purposes of determining whether or not they would be eligible for life insurance”.

The case of Hoover v. Williamson, 236 Md. 250, 203 A.2d 861 (1964), presented a strikingly similar situation. There, each year x-ray examinations of the chests of certain employees of General Electric Company were required by the company under the direction and supervision of a plant physician who was paid for his services by the company. One of their employees was examined and alleged that the x-ray examination revealed that he was suffering from silicosis, but that the plant doctor affirmatively misrepresented to him the nature of his condition and concealed from him the recommendations of other consultants, thereby causing his lung condition to become more serious and to eventually turn into a permanent disease. Citing cases from Missouri, Mississippi, Ohio, Minnesota, New York, and Texas, the court therein stated:

“The appellee is right in his contention that ordinarily recovery for malpractice or negligence against a doctor is allowed only where there is a relationship of doctor and patient as a result of a contract, express or implied, that the doctor will treat the patient with proper professional skill and the patient will pay for such treatment, and there has been a breach of professional duty to the patient. Thus, it has been held that there is not a doctor-patient relationship between: (a) a prospective or actual insured and the physician who examines him for the insurance company; or (b) a prospective or actual employee and the doctor who examines him for the employer.” (Emphasis ours.)

Exceptions to this rule would encompass situations where the doctor would assume, though gratuitously, to undertake to render services which he should recognize as necessary to another’s bodily safety, and leads the other in reasonable reliance on the services to refrain from taking other protective steps, or to enter on a dangerous course of conduct (Restatements 2nd, Torts, § 323), or, where the doctor himself, even without the requisite doctor-patient relationship, actually causes the condition complained of.

If, therefore, plaintiff is to hold defendant liable for the worsening of his condition, he must either allege a breach of duty arising out of a doctor-patient relationship, or that he was misinformed or not informed of a condition that the doctor had a duty to disclose to him or that the doctor’s action or failure to take action actually was the cause-in-fact of his alleged injury.

Plaintiff, in his petition, does not allege a doctor-patient relationship. In fact, he alleges that Dr. Woodard is the “plant physician”. Having failed to allege a doctor-patient relationship, there could be no breach of duty arising therefrom since none is asserted, and plaintiff, in this respect, has failed to state a cause of action.

In Bohannon’s deposition, above referred to, Bohannon testified that, “Dr. Woodard is retained by the company as our company physician. We consider him an employee in that respect, that is he is paid a monthly retainer”. The doctor was hired by the company for their benefit and any benefit that their employees receive from having a doctor there to conduct these examinations was only secondary in nature. In another strikingly similar case wherein a company physician who gave pre-employment physical examinations to potential employees was sued by a company employee for failing to inform her that x-rays disclosed a tubercular condition, a Texas court held that the physician was not under a duty to the “patient” to discover the condition, his employment in this regard being solely for the benefit of the employer and no duty of discovery towards the employee was imposed upon him. Lotspeich v. Chance Vought Aircraft, 369 S.W.2d 705 (Tex.Civ. App.1963).

Accordingly, for the reasons assigned, the judgment of the trial court is affirmed.

Costs of this appeal are assessed against appellant.

AFFIRMED.

      . Dr. Woodard, in his brief filed in this Court, raises only the defense of no doctor-patient relationship. He does not raise the issue of whether or not he is a co-employee of the plaintiff so as to be absolved from tort liability under LSA-R.S. 23:1032. Inasmuch as the latter issue was not raised by Dr. Woodard, either in the lower court or in this Court, we will not decide whether or not Dr. Woodard’s relationship with Hercules was that of an employer-employee. Be that as it may, assuming arguen-do that Dr. Woodard could be classified as a co-employee, we would still conclude, as we did in the case of the other defendants herein, that the allegations of plaintiffs petition do not support a cause of action for an intentional tort against Dr. Woodard.


text:
    Herman STANFORD, Plaintiff-Appellee, v. ST. PAUL FIRE & MARINE INSURANCE COMPANY, Defendant-Appellant.
    No. 82-595.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 28, 1982.
    Rehearing Denied Feb. 4, 1983.
    Writ Denied March 25,1983.

      Morrow & Morrow, J. Michael Morrow, Opelousas, for plaintiff-appellee.
    Gachassin & Capretz, Nicholas Gachassin, Jr., Lafayette, for defendant-appellant.
    Before STOKER, LABORDE and YEL-VERTON, JJ.
   LABORDE, Judge.

MOTION TO DISMISS

The plaintiff-appellee, Herman Stanford, moves to dismiss a part of the appeal of St. Paul Fire and Marine Insurance Company on the grounds that the appellants have voluntarily and unconditionally acquiesced in that part of the judgment thereby abandoning their right of appeal as to that part.

On 12 June 1981, the jury returned a verdict in favor of the appellee and against the appellant in the amount of $275,000. The issue of penalties and attorney’s fees was tried separately by the trial court on 17 July 1981 and a judgment on both issues was signed on 24 May 1982.

On 15 July 1981, before the signing of the judgment and before the issue of penalties and attorney’s fees had been decided, the appellant issued a check to the appellee and his attorney in the amount of $318,868.00. On the same day the appellant filed a motion into the record which recited that the payment of $318,868.00 was in payment of the “Judgment of the jury plus all interest.” The check was negotiated immediately and the funds were given to the appellee.

On 24 May 1982, the judgment which was prepared by the counsel for the appellant, was signed by the trial judge. The judgment provides that the payment of $318,-868.00 had been forwarded to the appellee in payment of the jury award plus interest from the date of judicial demand.

The first specification of error alleged by the appellant in its appeal states:

“That the interest on the principal amount of the Judgment ($268,000.00) should not run from the date of the judicial demand but from the date of the signing of the judgment, May 24, 1982.”

The appellee has filed this motion to dismiss on the grounds that the appellant, by paying the appellee the amount of the jury award plus legal interest, voluntarily acquiesced in that part of the judgment which awarded interest on the jury award from the date of judicial demand.

Article 2085 of the Code of Civil Procedure provides:

Art. 2085. Limitations on appeals
An appeal cannot be taken by a party who confessed judgment in the proceedings in the trial court or who voluntarily and unconditionally acquiesced in a judgment rendered against him. Confession of or acquiescence in part of a divisible judgment or in a favorable part of an indivisible judgment does not preclude an appeal as to other parts of such judgment.

Source: C.P. Art. 567.

The jurisprudence is clear that a party who pays a judgment without reservation of the right to appeal is considered to have voluntarily acquiesced in the judgment paid. See Adolph v. Sewerage and Water Bd. Pension Committee, 202 So.2d 664 (4th Cir., 1967) and Voorhies Electrical Contract, Inc. v. Town of Bunkie, 136 So.2d 141 (3rd Cir.1961).

The evidence shows that the appellant voluntarily paid the judgment plus legal interest without reserving its right to appeal the issue of the legal interest. The payment without reservation precludes the appellant from appealing the amount of legal interest.

For the reasons assigned, the Motion is granted and the appeal is partially dismissed at appellant’s cost.

MOTION GRANTED.


author: SUGG, Presiding Justice, for the Court:

text:
    CENTRAL FINANCIAL SERVICES, INC. v. Marshall SPEARS.
    No. 53677.
    Supreme Court of Mississippi.
    Jan. 12, 1983.
    Bourdeaux & Jones, Thomas L. Webb, E. Gregory Snowden, Meridian, for appellant.
    Leslie C. Gates, Meridian, for appellee.
    Before SUGG, P.J., and BROOM and BOWLING, JJ.
   SUGG, Presiding Justice, for the Court:

The question in this case is whether a mortgagee, who purchases the mortgaged property at a foreclosure sale must account to the mortgagor for the surplus arising from a sale of the property by the mortgagee within two weeks for two and one-half times the amount bid by the mortgagee at the foreclosure sale.

Marshall Spears borrowed $1250 from Central Financial Services, Inc. (CFS), and executed a promissory note and financial disclosure statement along with his wife, Ester Spears. They also executed a deed of trust covering certain real property described therein to secure the debt. The total amount secured was $1797.30 which included principal, interest, insurance and fees.

Spears gave his son $625 or half the amount of the principal and expected him to assist in paying back the loan. They could not agree on an arrangement so payments on the promissory note fell into arrears. CFS advertised the property for sale under the terms of the deed of trust, but stopped the advertisement when Spears paid the amount in arrears including cost of the foreclosure proceedings. Spears and his son still could not agree upon how they could make payments on the note, so once again it became delinquent. On October 12, 1979, after advertising the sale in accord with section 89-1-55 Mississippi Code Annotated (1972), the sale was conducted and CFS bid $1458.86, the amount of the indebtedness then due plus costs of foreclosure. There were no other bidders. Two days later, Spears was notified by an agent for CFS that he would have to vacate the premises. Spears claimed that this was the first time he was aware of the second sale and that he offered to pay the amount of the delinquency, but was told it was too late for that.

On October 24,1979, CFS sold the property to Joe Stewart and Earl Aycock for $4,000. CFS then paid a $30 judgment lien on the property and realized a profit of $2481.14. Aycock and Stewart sold the property to Roger C. Henderson on February 19, 1980 for $6,500. Henderson then made improvements to the property.

On March 11, 1980, Spears filed a bill of complaint in the Chancery Court of Lauder-dale County which named CFS, Thomas B. Bourdeaux, Trustee, Joe Stewart, Earl Ay-cock and Roger Henderson as defendants. The bill prayed that the second foreclosure sale be set aside, alleging violation of Spears’ constitutional rights, inadequate sale price and prayed for an injunction and other relief. The demurrer of the defendants was sustained and Spears appealed to this Court.

The appeal was submitted on March 3, 1981, and, in an unpublished opinion we held, “On the face of the complaint, taking as true Spears’ allegation that the fair market value was $7,000, the consideration of $1458.86 was so grossly inadequate as to shock the conscience of this Court,” We reversed and remanded for a trial on the merits because of the gross inadequacy of consideration alleged on the face of the complaint. Miss., 394 So.2d 1391.

The chancellor dismissed the case as against the trustee, Aycock, Stewart and Henderson, but found that the sale price at the second foreclosure sale was so inadequate that it shocked the conscience of the court. He determined from the evidence presented that the property had a fair market value of $6,000 at the time of the sale and ordered CFS to respond in damages based on the difference between fair market value and the price paid at the foreclosure sale. CFS appealed. Spears did not cross-appeal so the dismissal of the action against the trustee, Aycock, Stewart and Henderson is not at issue.

We have reviewed our cases involving adequacy of consideration as a ground for setting aside a foreclosure sale. These cases do not address the issue involved in this case but do lay down the general rule that mere inadequacy of price is not sufficient to set aside a foreclosure sale unless the price is so inadequate as to shock the conscience of the court. These cases, ex-cept Federal Credit Co. v. Boleware, do not involve a resale by the mortgagee of property purchased by it at a foreclosure sale. We also note that most of the cases cited in footnote 1 involved sales during a time of economic depression and, as stated in Hardin v. Grenada Bank, supra, many of the sales were deemed adequate because the entire country “was in the throes of a depression.”

In this case, the chancellor found that the sale price was so inadequate it shocked his conscience. This finding is amply supported by the evidence because CFS bid only $1458.86 at the foreclosure sale and twelve days later sold the property for $4,000. We hold that a sale of mortgaged property within twelve days of the foreclosure sale at a price two and one-half times the bid of the mortgage is so inadequate, it would be “impossible to state it to a man of common sense without producing an exclamation at the inequality of it.” The chancellor did not set the sale aside; instead, he fashioned a remedy with which we agree in principle.

CFS was in compliance with the statutory law pertaining to the advertisement and sale of real property under deeds of trust. However, the sale of the property by CFS twelve days later resulted in a windfall to it of approximately $2,500. We deem this windfall to be unjust. If CFS had bid $4,000 at the foreclosure sale it would have been entitled to recover the amount of its indebtedness plus the expense of the sale, with the surplus being payable to Spears. Certainly a sale twelve days later for $4,000 enabled CFS to recover $2500 more than it risked in the transaction it made when it advanced $1250 to Spears.

We agree with the chancellor that the sale price was so inadequate that it shocks the conscience of this Court. However, we are of the opinion that the decree should be modified to reduce the amount of recovery against CFS.

The chancellor ordered the difference between the fair market value, which he fixed at $6,000, and the amount bid by CFS be returned to Spears. CFS should not be required to suffer any pecuniary loss, which it would do under the decree of the chancellor. There is no evidence of any conspiracy between appellant and its vendees to defraud appellee by fixing the sales price below market value; rather, the sale was an arms length transaction. We are of the opinion, and hold, that the difference between the amount bid and the $4,000 received by CFS at the private sale twelve days later should be used in computing the amount due Spears.

The record shows that the total amount of the indebtedness due at the time of the foreclosure sale was $1,458.86. Interest on this amount at the rate fixed in the note for twelve days amounts to $13.51. CFS also paid off a $30 judgment lien against the property and is entitled to credit for the judgment lien. We therefore, reduce the chancellor’s award to $2,497.63, computed as follows:

Sale price of the property to Aycock and Stewart $4,000.00
LESS:
Amount of indebtedness $1,458.86
Judgment paid by CFS 30.00
Twelve days interest 13.51 1,502.37
$2,497.63

AFFIRMED AS MODIFIED.

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

      . Myles v. Cox, 217 So.2d 31 (Miss.1968); Triplett v. Bridgforth, 205 Miss. 328, 38 So.2d 756 (1949); Harris v. Bailey Avenue Park, Inc., 202 Miss. 776, 32 So.2d 689 (1947); Home Owners Loan Corp. v. Wiggins, et al, 188 Miss. 750, 196 So. 240 (1940); Anthony v. Bank of Wiggins, 183 Miss. 885, 184 So. 626 (1938); Hardin v. Grenada Bank, 182 Miss. 689, 180 So. 805 (1938); Blacketor v. Cartee, 172 Miss. 889, 161 So. 696 (1935); Wheeler v. Cleveland State Bank, 174 Miss. 542, 164 So. 400 (1935); First Credit Co. v. Boleware, 163 Miss. 830, 142 So. 1 (1932); Hesdorffer v. Welsh, 127 Miss. 261, 90 So. 3 (1921); and Weyburn v. Watkins, 90 Miss. 728, 44 So. 145 (1907).

      . Criticism from many sources has been leveled against the foreclosure sales procedure in Mississippi because the true market value of the property is seldom bid at such sales.
      For example, Professor Guthrie T. Abbott, in an article in 50 Mississippi Law Journal, page 665, discussed some of the reasons for inadequate bids in the following language.
      It has been the experience of this author that most power of sale foreclosures in Mississippi produce little, if any, bidding at the sale. The vast majority of such sales results in the beneficiary under the deed of trust being the only bidder, and the successful bid by the beneficiary is usually for the amount of the indebtedness or less. It is almost impossible to succeed in having such a sale set aside on the basis of an inadequate sale price because the test is that the inadequacy from such a forced sale must be so gross as to shock the conscience of the court or to amount to fraud. This stringent standard should require that every possible safeguard be built into the power of sale foreclosure procedure to ensure as high a sales price as possible, but this is certainly not the case in Mississippi. The notice requirements, as discussed above, do the very minimum to notify the debtor(s), much less to notify prospective bidders. One of the classic modes by which a junior lienor may protect his interest is to bid at the foreclosure sale so as either to obtain the property or to guarantee a sale at close to market price. However, in Mississippi, the junior lienor will often only obtain knowledge of the sale after it has concluded. The advertisements required by statute are buried in the legal notices section of the newspaper, and with the exception of the beneficiary’s bid up to the amount of the indebtedness, the sale must be made for cash to be paid in full at the time of the sale. The cumulative effect of the deficient sales procedures described above is to ensure a severely depressed sales price at most Mississippi power of sale foreclosures. [50 M.L.J. at 680-81. (1979) ].

      . In Federal Credit Company v. Boleware, supra, note 1, Boleware defaulted in his truck payments and Federal Credit repossessed it. A public sale was held in accordance with the conditional sales contract and Federal Credit became the purchaser for $85, raising a $75 bid made by another. Federal Credit repaired the truck, painted it, outfitted it with tires, purchased insurance on the truck, and sold it later for $325. The total indebtedness was in excess of $220 at the time of the sale. The cost of the repairs was not shown. Federal Credit then sued Boleware for a deficiency of $138.08.
      Boleware offered evidence that the truck was worth more money than it brought at the public sale and was worth enough more to discharge the indebtedness then existing. The Court held that mere inadequacy of price will not operate to set a sale aside, unless it is so gross as to furnish evidence of fraud, and there must be an inequality so strong, gross and manifest “that it must be impossible to state it to a man of common sense without producing an exclamation at the inequality of it.” This Court reversed and rendered, holding that Federal Credit was entitled to a peremptory instruction.

      . Federal Credit Co. v. Boleware, 163 Miss. at 835, 142 So. at 2.


text:
    William W. DURR & Donna K. Durr v. Gary A. NELSON and Rebecca J. Nelson.
    No. 53960.
    Supreme Court of Mississippi.
    Jan. 14, 1983.
    Rehearing Denied Feb. 9, 1983.
    Henry W. Bryan, Jackson, for appellants.
    Lee & Grenfell, James B. Grenfell, Jackson, for appellees.
   Appeal from Circuit Court, Hinds County; Charles T. Barber, Judge.

Before PATTERSON, C.J., and ROY NOBLE LEE and PRATHER, JJ.

AFFIRMED.


text:
    Ethel KNIGHT v. CHEVRON U.S.A., INC. et al.
    No. 53590.
    Supreme Court of Mississippi.
    Jan. 19, 1983.
    Rehearing Denied Feb. 9, 1983.
    Fledell Chain, Collins, for appellant.
    Gibbes, Graves, Mullins, Bullock & Ferris, William S. Mullins, III, Laurel, John K. Keyes, Collins, for appellees.
   Appeal from Circuit Court, Covington County; L.D. Pittman, Judge.

Before WALKER, P.J., and BROOM and DAN M. LEE, JJ.

AFFIRMED.


text:
    OPINION OF THE JUSTICES.
    No. 288.
    Supreme Court of Alabama.
    Feb. 2, 1982.
   The Senate

State Capitol

Montgomery, Alabama

Dear Ladies and Gentlemen:

We are in receipt of Resolution No. 6 by Senator Little, adopted January 14, 1982, which is, in part, as follows:

SR 6 REQUESTING AN ADVISORY OPINION OF THE JUSTICES OF THE SUPREME COURT RELATIVE TO S.B. 75.
“BE IT RESOLVED BY THE SENATE OF THE LEGISLATURE OF ALABAMA, That we respectfully request the Honorable Chief Justice and Associate Justices of the Supreme Court or a majority of them, to give this body their written opinions on the following important constitutional questions which have arisen concerning the pending bill, S.B. 75, a copy of which is attached to this resolution and made a part hereof by reference:
“1. Does Section 1 of S.B. 75 conflict with Article I, § 6 of the Constitution of Alabama of 1901?
“2. Does Section 1 of S.B. 75 conflict with Article IV, § 105 of the Constitution of Alabama of 1901?
“3. Should S.B. 75 be advertised in accordance with Article IV, § 106 of the Constitution of Alabama of 1901?
“RESOLVED FURTHER, That the Secretary of the Senate is hereby directed to send sufficient true copies of the pending bill, S.B. 75, to the Clerk of the Supreme Court of Alabama, and to transmit this request to the Justices of the Supreme Court forthwith upon adoption of this Resolution.
“SYNOPSIS: This bill relates to the 37th Judicial Circuit and changes the present jury strike system in criminal cases to a one strike system in trials by jury for violations, misdemeanors or felonies, or upon appeals to the circuit courts from lower courts.

A BILL

TO BE ENTITLED

AN ACT

“Relating to the Thirty-seventh Judicial Circuit, to change the present jury strike system in criminal cases to a one strike system in trials by jury for violations, misdemeanors or felonies, or upon appeals to the circuit courts from lower courts.
BE IT ENACTED BY THE LEGISLATURE OF ALABAMA:
“Section 1. Upon the trial by jury of criminal cases in the circuit courts of. the Thirty-seventh Judicial Circuit, the jury shall be drawn, selected and empaneled as follows: Upon the trial by jury in the circuit courts of a person charged with a felony, including a capital felony, a misdemeanor, or violation, or upon an appeal to the circuit court from any lower courts, the court shall require a strike list or lists to be compiled from the names appearing on the master strike list. In compiling the list or lists, names of qualified jurors may be omitted on a non-selective basis. A strike list shall be furnished for the trial of any case at hand and a copy thereof given to all parties. The jurors whose names appear thereon shall be brought into open court, the case called and in the presence of the district attorney, the defendant and his attorney, shall be examined on voir dire for the trial of the case at hand. At the conclusion of the voir dire examination and the removal from the strike list of the names of those jurors who were challenged or excused for good reason, the district attorney shall be required first to strike from the strike list the name of one juror, and the defendant shall strike one, and they shall continue to strike off names alternately until only 12 jurors remain on the strike list and these 12 jurors thus selected shall be the jury charged with the trial of the case.
If any defendant shall refuse to exercise a strike to which he is entitled, then the judge presiding shall exercise that defendant’s strike for him. The number of names appearing on the strike list upon commencement of striking, unless a lesser number is agreed to by the parties, shall not be less than 18 if the offense charged is a misdemeanor or violation. No special venire shall be ordered, drawn, or summoned for the trial of any person indicted for a capital felony.
“Section 2. All laws or parts of laws which conflict with this act are hereby repealed.
“Section 3. This act shall become effective immediately upon its passage and approval by the Governor, or upon its otherwise becoming a law.”

You ask us to give our opinion on three specific questions, but the answer to each of these questions depends upon whether S.B. 75 is a “general” or “local” law. Which is it? It is a “local” law. Amendment No. 375, which amended Section 110 of the Alabama Constitution of 1901, states that “[a] local law is a law which is not a general law or a special or private law.” A “general law” is defined in Amendment No. 375 as “a law which in its terms and effect applies either to the whole state, or to one or more municipalities of the state less than the whole in a class.”

S.B. 75, by its terms, does not apply to the whole state; therefore, it is a “local” law. Peddycoart v. City of Birmingham, 354 So.2d 808 (Ala.1978).

We are aware that legislation similar to S.B. 75 was upheld in a litigated case styled Dixon v. State, 27 Ala.App. 64, 167 So. 340, cert. den., 232 Ala. 150, 167 So. 349 (1936), involving a statute which provided for a different mode of selecting and impanelling juries in all criminal and quasi criminal cases in circuit courts in counties which had a population of 300,000 or more, which, at the time the act was adopted, applied only to circuit courts in Jefferson County. Dixon, however, was decided prior to Peddy-coart, and we call specific attention to the holding of Peddycoart regarding legislation adopted after the date of the Peddycoart decision (January 13, 1978). There, this Court opined:

“We are mindful of prior decisions which have approved enactments based upon population classifications when the classifications were found to be ‘substantial,’ were not ‘arbitrarily’ fixed, and were based upon a ‘reasonable necessity’ for the several classifications. E.g., Dearborn v. Johnson, 234 Ala. 84, 173 So. 864 (1937). No citation of authority is necessary to demonstrate the elusive nature of such a judicial test, or to point out that a number of these cases might have been decided either way. The specificity of the constitutional framers manifested by §§ 104, 105 and 110 discloses their intent, and negates tolerance with any such tests which give to both courts and legislature such widé discretion. Henceforth, when at its enactment legislation is local in its application it will be a local act and subject to all of the constitutional qualifications applicable to it. With regard to legislation heretofore enacted, the validity of which is challenged, this Court will apply the rules which it has heretofore applied in similar cases.”

Amendment No. 389, Constitution of 1901, makes provisions for determining the validity of certain population based acts enacted before January 13, 1978.

Having determined that S.B. 75 is a “local law,” we answer each of your specific inquiries.

1. “Does Section 1 of S.B. 75 conflict with Article I, § 6, of the Constitution of Alabama of 1901?”

We assume that, by asking whether S.B. 75 would violate Article I, Section 6, of Alabama’s constitution, you question whether the one-for-one strike provision in S.B. 75 is valid in view of the fact that the general law provides defendants a two-for-one strike advantage. That question is discussed and answered in Dixon v. State, supra, wherein the Court of Appeals held:

“ ‘The defendant contends that the act in question is void as denying [her] the equal protection of the laws, and argues that the decision of the Alabama Supreme Court in the case of In re Dorsey [7 Porter (Ala.) 293] supports [her] contention. The answer to this contention is that the constitutional guaranty of equal protection of the law does not forbid reasonable classification based on real and substantial distinctions. Birmingham-Tuscaloosa Ry. & Utilities Co. v. Carpenter, 194 Ala. 141, 69 So. 626. The United States Supreme Court in the case of Gardner v. Michigan, 199 U.S. 325, 26 S.Ct. 106, 50 L.Ed. 212, held that it was no denial of equal protection of the law that different jury laws obtained in different political subdivisions of a state. To the same effect is. the case of Chappell Chemical, etc. Co. v. Sulphur Mines Co., 172 U.S. 472, 19 S.Ct. 268, 43 L.Ed. 520. In 12 C.J. at page 1150, appears the following accurate statement of the law; “Counties and municipal corporations may be divided into classes based on population, and laws may be enacted to apply only to those of a certain class.”
“ ‘At page 1185 of the same work, appears the following statement: “Statutes relating to the selection of the jury and to the respective provinces of the court and jury which have been sustained as not denying the equal protection of the law include * * * statutes prescribing trial otherwise than by jury * * * in a certain city.”
“ ‘The court, therefore, holds that the act now under attack does not deny the equal protection of the law to the defendant.’ ”

We call the legislature’s attention to the fact that the act upheld in Dixon v. State was obviously upheld upon a finding by the trial court that the “classification” in that case was made in good faith and was reasonable. We call the attention of the legislature to the fact the act upheld in Dixon was then classified as a general bill with local application. We do not suggest that providing a different procedure for striking juries in Lee County, if done by a general law, would be an unreasonable classification, but that the legislature should have some justification for any such classification, as was found to be the case in Dixon v. State.

While we are of the opinion that there is no constitutional requirement that provisions for the selection and impanelling of juries should be uniform, we, nevertheless, are of the opinion that, in view of the fact that the people, by adoption of the Judicial Article (Amendment 328), have established a unified judicial system, rules governing the practice and procedure to be followed in the unified judicial system likewise should be reasonably uniform. In this connection, we call your specific attention to the fact that the Supreme Court of Alabama, pursuant to the authority granted it by § 6.11 of Amendment No. 328, is considering proposed rules of criminal procedure which would make the one-for-one strike provision applicable statewide. We also judicially know that legislation making provisions for one-for-one strikes in criminal cases in all circuits has been introduced during the current legislative session.

In view of the fact that S.B. 75 is a local law, we opine that the answer to question No. 1 is in the affirmative.

“2. Does Section 1 of S.B. 75 conflict with Article IV, § 105 of the Constitution of Alabama of 1901?”

We assume you desire to know whether S.B. 75, which makes a change in the general laws regarding the striking of juries in criminal cases, violates § 105. In State, ex rel. Brandon v. Prince, 199 Ala. 444, 74 So. 939 (1917), this Court considered the validity of a local law which worked a change in law applicable to Tuscaloosa County for selecting and drawing jurors and juries. There, this Court discussed the constitutional validity of the local act, as follows:

“If we should hold that, merely because there is a general law providing for the selecting and drawing of juries for the several counties, none of its provisions can be changed by a local law, it would be tantamount to holding that a local law cannot be passed upon that subject. We do not think that this is the meaning of section 105 of the Constitution, nor that such was the intent of the Constitution framers in ordaining it.
“It is a part of the judicial history of this state before and since the adoption of the Constitution of 1901 that the methods and agencies for the selecting and drawing of jurors, etc., have been provided for by both local and general statutes. As before stated, there being no constitutional provision requiring the laws on this subject to be uniform in all the counties or all the courts, the Legislature may provide different laws for different counties; and it is difficult to conceive how a more radical difference could be given effect than to provide by one law that the juries shall be selected and drawn by a jury commission to be appointed by the Governor, and by another that such duty and function shall be performed by a board of revenue or court of county commissioners the members of which are elected by the voters of a particular county.
“The mere fact that the things to be done by each board, or all the members thereof, are the same, does not make the laws which authorize the doing of the same things by different boards or different officers the same laws; they are different laws though they relate to the same subjects or subject matters. This is well illustrated by many local laws, relating to boards of revenue or courts of county commissioners, repeatedly upheld by this court notwithstanding there are general laws — an entire chapter of the Code — relating to this subject. See report of case of Dunn v. Dean, 196 Ala. 486, 71 South. 709, where many cases of this kind are cited and reviewed to the effect that such laws are not void under section 105 of the Constitution. Again, the mere fact that there are general laws relating to circuit and chancery courts does not prevent the Legislature from providing, by local laws, for other courts to do the same work and discharge the same functions and powers as by such general provisions authorized. The general laws and the local laws in this respect are different, and not the same.” (Emphasis added.)

Brandon was decided in 1917 and its holding should be considered in light of the fact that the Judicial Article (Amendment 328) had not then been adopted. The spirit of the Judicial Article is that a unified judicial system is established in which the procedures should be uniform.

In view of the above, we are of the opinion that the procedure for the selection of juries in criminal cases is provided for by a general law, and that S.B. 75 is a local law; therefore, S.B. 75 is violative of Section 105 of the Constitution.

3. “Should S.B. 75 be advertised in accordance with Article IV, § 106, of the Constitution of 1901?”

The answer to this question is in the affirmative, because S.B. 75 is a “local law.”

Respectfully submitted,

C.C. Torbert, Jr.

Chief Justice

Hugh Maddox

James Faulkner

Richard L. Jones

Reneau Almon

Janie L. Shores

T. Eric Embry

Sam A. Beatty

Oscar W. Adams, Jr.

Justices