text:
    Dinna Bannister MILES, Individually and as Natural Administratrix of the Estate of the Minor Donny Miles and Sherry Miles Crocklen, v. ILLINOIS CENTRAL GULF RAILROAD CO., Kansas City Southern Railway Co., Inc., Southern Railroad Co., Magor Railcar, Division of Fruehauf Cor., Citadel Cement Cor., Cecil Brown, and ABC, DEF, GHI, and XYZ Insurance Companies.
    No. 10759.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 19, 1980.
    Writ Refused Nov. 21, 1980.
    Gauthier & Murphy, Patrick J. McCabe, Kenner, for plaintiff-appellant.
    Lemle, Kelleher, Kohlmeyer & Matthews, H. Martin Hunley, Jr., and David S. Kelly, New Orleans, for defendants-appellees.
    Before SAMUEL, BOUTALL and GARRISON, JJ.
   SAMUEL, Judge.

This is a suit for damages arising from the wrongful death of Arthur Miles. Petitioners are Dinna Bannister Miles, individually and as natural administratrix of the estate of the minor, Donny Miles, and Sherry Miles Crocklen.

The petition alleges: At the time of decedent’s death Dinna Bannister Miles was his legal wife and Donny Miles was a child of that marriage. Sherry Miles Crocklen is his mother. Decedent (whose employer is not a named defendant herein) was unloading cement from a “hopper type railroad car” owned by one of the defendants, loaded by another, manufactured by another, and in the possession and/or control of the remaining defendants. While he was unloading the car, in a normal and proper manner, it suddenly fell on top of him, crushing him to death.

Insofar as Sherry Miles Crocklen’s right of action is concerned, the petition alleges: On being informed of the accident she rushed to the scene and was present when the car was raised from her son’s crushed body. The incident and that sight caused her extreme anxiety and mental suffering and, accordingly, she seeks damages for mental anguish.

Some of the defendants filed exceptions of no right or cause of action to the claim of the mother, Sherry Miles Crocklen. Following oral argument and the submission of memoranda, there was judgment maintaining the exception and dismissing her suit against the exceptors. She has appealed from that judgment.

In this court appellant makes these four contentions: (1) The trial court erred in failing to follow the first sentence of C.C. Art. 2315; (2) the judgment is unconstitutional in that it violates the equal protection clauses of the Constitutions of the United States (Amendment 14) and the State of Louisiana (Art. 1, See. 3); (3) the judgment also is unconstitutional in that it violates the guarantees of due process provided in the two constitutions (United States, Amendment 14, and Louisiana, Art. 1, Sec. 3); and (4) the judgment also is unconstitutional in that it violates the guarantee of free and open access to the courts provided in Article 1, Section 22 of the Louisiana Constitution.

The survival/wrongful death action has been a part of our law since the adoption of the Revised Civil Code of 1870. Insofar as is pertinent to this appeal, pivil Code Article 2315 reads:

“Every act whatever of man that causes damage to another obliges him by whose fault it happened to repair it.
The right to recover damages to property caused by an offense or quasi offense is a property right which, on the death of the obligee, is inherited by his legal, instituted, or irregular heirs, subject to the community rights of the surviving spouse.
The right to recover all other damages caused by an offense or quasi offense, if the injured person dies, shall survive for a period of one year from the death of the deceased in favor of: (1) the surviving spouse and child or children of the deceased, or either such spouse or such child or children; (2) the surviving father and mother of the deceased, or either of them, if he left no spouse or child surviving; .... The survivors in whose favor this right of action survives may also recover the damages which they sustained through the wrongful death of the deceased. ...” (Emphasis ours).

Regarding appellant’s first contention, it is clear she is not entitled to maintain, nor is she attempting to maintain, a survivor’s or wrongful death action under Article 2315. The article explicitly provides the surviving mother or father may bring the action or actions only if the deceased did not leave a spouse or child surviving, and in this case the deceased left both a spouse and a child. However, while conceding she has no survival action under Article 2315, appellant argues the article’s first sentence gives her a right of action for the mental anguish suffered by her as a result of her son’s death.

Our long settled jurisprudence is to the contrary. Except as sanctioned by Article 2315 there can be no recovery of damages for mental pain and anguish suffered as a result of physical injuries sustained by, or on account of, another person. The only instance where a person may recover for such mental anguish other than under Article 2315 is where the tort feasor has breached a duty owed, not to the injured party alone, but to the plaintiff. In the instant case the petition does not allege the breach of any duty owed by the excep-tors to Sherry Miles Crocklen, nor has her counsel suggested there was any such duty.

Nonetheless, appellant further argues this line of jurisprudence “is suspect and should be overturned and brought into accord with the obvious intent of [the first sentence of] Article 2315.” While there are valid reasons for continuing the rule as it now stands, we find a consideration of this argument is unnecessary. The jurisprudence to which appellant objects includes cases handed down by the Supreme Court of Louisiana, and we are required to follow those cases; we have no authority to overrule the holdings of that court. In addition, particularly in view of the long standing jurisprudence, it appears to us that this is a matter which addresses itself to the legislature.

In connection with her second, third and fourth contentions appellant informs us that those constitutional challenges are directed, not to Article 2315 itself, but to the courts’ interpretation of that article as evidenced by the line of jurisprudence cited above in this opinion. We find no merit in any of these contentions.

As to the second contention, regarding violation of the constitutional equal protection clauses, appellant argues the classification, i. e., the restricting of a cause of action to those to whom the tort feasor owes a duty which has been breached, is based upon circumstances, and those, as appellant here, “who have the misfortune due purely to circumstance to fall within the judicially gerrymandered class are not afforded the full protection of our laws.” In answer to. this argument it suffices to say that of necessity the legislature was faced with the need to place some limitations on those who are designated as beneficiaries in Article 2315 and both the distinctions in that article and the court interpretation thereof are constitutionally reasonable and supportable.

To support her third contention relative to due process, appellant argues she has a vested property right of which she cannot be constitutionally deprived. She relies entirely upon this statement in Burmaster v. Gravity Drainage Dist. No. 2.

“Where an injury has occurred for which the injured party has a cause of action, such cause of action is a vested property right which is protected by the guarantee of due process.”

The statement obviously refers only to an injured party who “has a cause of action.” Here, appellant does not have a cause or right of action; she has no claim recognized by our law. Consequently, she has no vested property right.

Finally, as to the fourth contention, relative to a denial of true access to the courts, Article 1, Sec. 22 of our Constitution of 1974 does not require that every suit filed be disposed of by trial on the merits. To hold otherwise would have the effect of removing practically all exceptions from our civil procedure. Appellant has had full access to the courts. As we have said, she simply has no claim recognized by our law.

For the reasons assigned, the judgment appealed from is affirmed.

AFFIRMED.

      . Illinois Central Gulf Railroad Company, The Kansas City Southern Railway Company, Southern Railway Company and Cecil N. Brown.

        . Kaufman v. Clark, 141 La. 316, 75 So. 65; Brinkman v. St. Landry Cotton Oil Co., 118 La. 835, 43 So. 458; Sperier v. Ott, 116 La. 1087, 41 So. 323; Black v. Carrollton R. Co., 10 La.Ann. 33; Bourg v. Redden, La.App., 351 So.2d 1300; Bourque v. American Mut. Liability Ins. Co., La.App., 345 So.2d 237; Hickman v. Parish of East Baton Rouge, La.App., 314 So.2d 59; McKey v. Dow Chemical Company, Inc., La.App., 295 So.2d 516; Robertson v. Aetna Casualty and Surety Company, La.App., 232 So.2d 829; Warr v. Kemp, La.App., 208 So.2d 570; Voelker v. Liberty Mutual Insurance Company, La.App., 190 So.2d 136; Sabatier v. Travelers Insurance Company, La.App., 184 So.2d 594; Johnson v. Fidelity National Bank of Baton Rouge, La.App., 152 So.2d 327; Vinet v. Checker Cab Company, La.App., 140 So.2d 252; Honeycutt v. American General Insurance Company, La.App., 126 So.2d 789; Hughes v. Gill, La.App., 41 So.2d 536; Davis v. Consolidated Underwriters, La.App., 14 So.2d 494; Seligman v. Holladay, La.App., 154 So. 481.

      . Morgan v. Richmond, La.App., 336 So.2d 342; Holland v. St. Paul Mercury Insurance Company, La.App., 135 So.2d 145; Blanchard v. Brawley, La.App., 75 So.2d 891; (liability attached-not because a duty was owed to the injured party-but because a duty to the plaintiff was breached).

      . La., 366 So.2d 1381, 1387.


source: Caselaw Access Project

author: BARRY, Judge.

license: Public Domain

text:
    Beverly J. CARRUTH v. LOUISIANA MOTOR INNS d/b/a Quality Inn Airport et al.
    No. 11112.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 24, 1980.
    Thomas E. Stirewalt, Jr., New Orleans, for plaintiff-appellant.
    Sylvia Landry Holder, New Orleans, for defendants-appellees.
    Before CHEHARDY, BARRY and SAR-TAIN, JJ.
   BARRY, Judge.

Plaintiff, Beverly Carruth, sued her employer and its insurer for compensation benefits. It was stipulated that on February 3, 1977 plaintiff suffered a slip and fall accident while in the course and scope of her employment. The trial court awarded compensation during temporary total disability, LSA-R.S. 23:1221(1), and denied assessment of penalties and attorney’s fees.

Plaintiff filed this appeal claiming that she was permanently and totally disabled at the time of trial, November 27, 1978, and that the district court erred in awarding temporary total disability. The defendant answered urging adoption of the trial judge’s factual determination.

There is no question of plaintiff’s total disability, only whether the disability is temporary or permanent.

During plaintiff’s employment as a waitress she slipped on a wet greasy floor and fell striking the lower half of her body. Two days later she saw her family physician who referred her to Dr. Hamsa, an orthopedic specialist, and on February 8, 1977 she was hospitalized for evaluation of severe back pain. A neurosurgeon and another orthopedic surgeon were brought in for consultation. All three doctors recommended a myelogram which was performed on February 15, 1977 and proved negative. Plaintiff was discharged from the hospital three days later with a diagnosis of severe back strain and told to avoid any heavy work.

Plaintiff’s complaints continued and eight days later she was re-hospitalized for administration of a bone scan, electromyelo-gram and second myelogram. All of these tests were negative. Plaintiff was discharged from the hospital on March 19, 1977 and was seen by Dr. Hamsa during April and May of 1977.

Carruth was next seen by Dr. Adatto, an orthopedist, who wanted to perform an EMG and epidural venogram but could not because she was pregnant. Conservative treatment was continued until after birth of the baby in February, 1978. In the interim during October of 1977 plaintiff visited Dr. Kitziger, an orthopedic surgeon, at the request of the compensation insurer. Dr. Kitziger performed reflex and range of motion tests which were normal. Again, no X-rays were taken due to her pregnancy, but Dr. Kitziger opined that Carruth was able to return to work as a waitress and, based on this report, compensation benefits were discontinued by the employer.

On June 21, 1978, plaintiff went to see another orthopedic surgeon, Dr. Watermeier, and continued under his care until the time of trial. Based on the patient’s physical appearance and subjective symptoms, Dr. Watermeier hospitalized her and performed a lumbar myelogram, leg and epidural venograms and a lumbar discogram. The lumbar discogram proved positive indicating a degenerative disc pressing on the nerve root. An operation was performed and a bulging or herniated disc was removed.

After surgery the patient continued to complain of severe pain in her legs and back. Dr. Watermeier stated in his deposition of August 29, 1978 that he was unable to find the exact cause of plaintiff’s pain and he planned to re-hospitalize her.

On October 31, 1978, approximately 4 weeks before trial, Carruth was examined again by Dr. Kitziger who noted that her condition changed substantially since her last examination before the laminectomy. Dr. Kitziger found post-operative blood clots in her legs and also evidence of sciatic nerve damage. He stated that he could not predict whether the patient would ever revert to her pre-surgical status; however, as of October 31, 1978 she was disabled from gainful employment. This opinion was shared by Dr. Watermeier who said in his deposition on August 29, 1978 that Carruth was incapable of even light work. There is evidence in the record that after the depositions of Drs. Kitziger and Watermeier a second operation was performed to remove another disc.

Our criteria to determine whether the total disability is temporary or permanent is plaintiff’s condition at the time of trial.

The Supreme Court provided a general rule in order to determine permanent total disability in Walker v. Gaines P. Wilson & Son, Inc., 340 So.2d 985 (La., 1976) at p. 987:

“A judgment for total permanent disability should be awarded when the claimant is shown to be totally disabled at the time of trial and the duration of such disability is indefinite or the evidence does not clearly indicate its duration.”

The extensive medical record of the plaintiff began after her accident in February 1977, and continued until the time of trial. Her treating physician has not yet discovered the cause or the cure for her condition. There is no dispute that she is totally disabled and that her accident was work related. This employee has experienced two laminectomies, four myelograms, two venograms, and a discogram. The trial judge was correct in finding Carruth to be totally disabled at the time of trial. At that point the Walker, supra, rule should have been applied, rendering plaintiff permanently totally disabled. She is clearly and unmistakable entitled to workmen’s compensation benefits based upon a permanent total disability; the lower court judgment to the contrary is manifest error.

It was stipulated between counsel that the rate of compensation to be paid is $46.67 per week representing 66%% of her wages.

Accordingly, the judgment of the District Court is amended awarding permanent and total compensation benefits to Beverly J. Carruth beginning February 3, 1977 under the provisions of LSA-R.S. 23:1221(2). All other portions of the judgment are affirmed and costs of this appeal are assessed to appellee.

AMENDED AND AFFIRMED.

      . Reaffirmed in Wiley v. Southern Cas. Ins. Co., 380 So.2d 214 (La.App., 3rd Cir. 1980).


text:
    Mary Fabacher BALTZ, Wife of John F. Baltz v. John F. BALTZ.
    No. 11257.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 24, 1980.
    Stephen J. Simone, Metairie, for plaintiff-appellee.
    Roger R. Roy, New Orleans, for defendant-appellant.
    Before CHEHARDY, BARRY and SAR-TAIN, JJ.
   BARRY, Judge.

During the pendency of separation proceedings between John and Mary Baltz, the District Court ordered Mr. Baltz to pay child support for his three minor children of $300.00 a month based upon his gross income of $1,250.00 per month. When Mrs. Baltz secured a divorce in September, 1978 the $300.00 monthly child support was continued.

On March 21, 1979 Mrs. Baltz filed a rule to increase child support based upon a change of circumstances, i. e., additional money earned by Mr. Baltz. In May, 1979 the trial judge ordered the $300.00 child support increased to $473.00 per month. This 58% increase was predicated upon Mr. Baltz’s gross income of $2,557.00 per month.

On July 26, 1979 Mr. Baltz filed a rule to reduce the child support payments alleging a change of circumstances, i. e., his reduced monthly gross income. He filed an affidavit seeking an expedited hearing alleging that he no longer was earning overtime pay and he was unable to pay the increased amount of child support. Up to that time Mr. Baltz had timely paid all child support during the preceding three years.

Approximately three weeks after Mr. Baltz filed for the decrease his wife filed a motion for contempt because he was $136.50 in arrears and she requested the past due amount be made executory and she be awarded attorney fees.

The District Court heard the motions on September 18, 1979 and dismissed Mr. Baltz’s motion to reduce. The court found him in contempt for nonpayment, past due child support of $471.00 was made executo-ry, and $150.00 was awarded to Mrs. Baltz for attorney fees.

We have no doubt the trial judge was justified when he ordered payments increased in May, 1979. Mr. Baltz testified his higher income occurred as a result of an unusual amount of overtime earned during the first three months of 1979. However, two months later when he filed for a decrease because the overtime ceased his wages were still appreciably higher than three years earlier.

At the time the motion to reduce child support was filed Mr. Baltz’s monthly gross was $1,651.00. Counsel for Mr. Baltz advised this court on appeal that his client had received an 8% raise making his current monthly gross approximately $1,800.00.

Was the trial judge justified in refusing to reduce payments when appellant’s income dropped basically due to elimination of overtime pay?

In 1976 a gross salary of $1,250.00 was the basis to establish support of $300.00. In 1979 the father’s income of $2,557.00 could have easily justified the trial judge setting monthly payments of $600.00 or higher. Mr. Baltz’s current monthly earnings of $1,800.00 is 44% higher than his 1976 earnings. We are also aware that his children are older and their needs are greater.

Our obligation is to consider the parent’s ability to pay child support coupled with the best interests of the children. A reversal of the lower court is justified only if we find an abuse of discretion. Canter v. Koehring, 283 So.2d 716 (La., 1973); Arceneaux v. Dominque, 365 So.2d 1330 (La., 1978). The trial judge is in the best position to weigh the facts and evaluate the parties. We find no abuse of discretion.

Accordingly, the judgment of the District Court is affirmed with appellant to pay all costs of this appeal.

AFFIRMED.

      . The children were 6, 4 and 1 year old when child support was first set in October, 1976.


author: PER CURIAM.

text:
    James A. WAYNE, Sr. v. Bernell GREEN et al.
    No. 14042.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 25, 1980.

      James A. Wayne, in pro. per.
    Victor Marcello, Donaldsonville, for James A. Wayne, for plaintiff-appellant.
    Richard J. Brazan, Jr., Vacherie, and James Boren, Baton Rouge, for Bernell Green, for defendants-appellees.
    Before COVINGTON, CHIASSON, EDWARDS, COLE and WATKINS, JJ.
   PER CURIAM.

This is an appeal from a judgment of dismissal in an election contest suit. The trial judge found that appellant had failed to state a cause of action in his petition. Because we find the petition sufficiently sets forth a cause of action, we reverse and remand for trial on the merits.

Appellant James A. Wayne received fewer votes than appellee Burnell Green in the September 13, 1980 election for Ascension Parish School Board, District 1, Seat A. Appellant claims that but for serious irregularities and fraudulent acts occurring during the election, appellant would have won the primary election. Wayne seeks to be declared the winner of the election and alternatively asks that the election be declared null and void and that a new election be called.

The trial judge sustained the appellee’s peremptory exception raising the objection of no cause of action, finding the petition to lack sufficient detail as to the alleged misconduct, the number of votes affected, and the effect on the outcome of the election.

It is well settled that general charges of fraud and irregularities are not sufficient to state a cause of action in an election contest suit. Dowling v. Orleans Parish Democratic Committee, 235 La. 62, 102 So.2d 755 (1958); Garrison v. Connick, 291 So.2d 778 (La.1974). La.R.S. 18:1406 requires a plaintiff contesting an election to “set forth in detail the grounds for the objection or the contest.”

Appellant’s petition sets forth thirteen separate allegations of misconduct on the part of the appellee and his supporters. Although several of the charges are of a general nature we find that as a whole, the petition is specific enough to set forth a cause of action. Appellant is quite specific as to most of the charges, setting forth the names of the participants, the particular activity involved, and the exact location of the alleged wrong-doing.

In order to judicially challenge the result of a primary election the contestant must not only allege specific irregularity or fraud but must also show that the fraud or irregularity charged altered the result of the election. Moreau v. Tonry, 339 So.2d 3 (La.1976). We disagree with the trial judge’s finding that appellant’s petition does not sufficiently allege that the various acts of misconduct affected the outcome of the election. Paragraph 5 of the appellant’s petition reads as follows:

“5
“Petitioner shows that during the campaign and on election day, several Federal and State Laws were violated, and except for the irregularities and fraud in the conduct of the election the result would have been different and petitioner would not only qualify for the general election but would have been the winner of the primary elections and the only candidate in the general election.”

Appellant then lists the specific allegations in paragraph 7(A)-{M). We feel that paragraph 5 of the petition adequately asserts that the results of the election would have been different but for these specific acts of misconduct. It is unnecessary for the appellant to have included the “magic words” concerning the effect on the outcome of the election with each specific allegation.

For the foregoing reasons, the judgment of dismissal is reversed and the case is remanded for trial on the merits. Appel-lees are to pay all costs of these proceedings.

REVERSED AND REMANDED.


text:
    James A. WAYNE, Sr. v. Bernell GREEN et al.
    No. 14047.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 25, 1980.
    Richard J. Brazan, Jr., Vacherie, and James Boren, Baton Rouge, for Bernell Green.
    James A. Wayne, in pro. per.
    Victor Marcello, Donaldsonville, for James A. Wayne.
    Before COVINGTON, CHIASSON, EDWARDS, COLE and WATKINS, JJ.
   PER CURIAM.

The issue presented in this appeal is whether votes cast in a primary election for a legally withdrawn candidate for public office should be included in the total votes cast for all candidates in that particular race in arriving at the number of votes necessary to constitute a majority for declaring a winner. The trial court held the votes for the legally withdrawn candidate should be included in the total votes cast and granted appellee, James A. Wayne, Sr., injunctive and other relief. We affirm.

Three persons qualified for the position of school board member from District 1, Seat A, Ascension Parish, in the primary election held September 13, 1980. They were James A. Wayne, Sr., Bernell Green and Mary O. Julien. On August 19th, Mary 0. Julien legally withdrew from the contest but, notwithstanding that fact, her name appeared on the absentee and voting machine ballots. Forty-seven (47) votes were cast for Ms. Julien, four hundred thirty-six (436) votes were cast for Wayne, and four hundred forty-four (444) votes were cast for Green.

The Board of Supervisors of Elections for the Parish of Ascension met on September 17th for the purpose of certifying to the Secretary of State the returns of the election. The Board voted to delete the name of Ms. Julien for the certification of votes to the Secretary of State thereby transmitting only the votes received by Wayne and Green. This, of course, would show Green as the winner of the primary election.

Responding to the relief sought by Wayne, the trial court granted a permanent injunction directed to defendants, Bernell Green, the Democratic Executive Committee of Ascension Parish, the Board of Supervisors of Elections for Ascension Parish, and James Brown, Secretary of State. The injunction prohibited defendants from certifying Bernell Green as the winner of the election. The trial court further ordered the Board of Supervisors of Elections to deliver to the Secretary of State the returns for all three of the candidates, including the votes cast for Ms. Julien. Finally, the trial court decreed, pursuant to R.S. 18:511, no candidate received a majority of the votes east for the office of School Board member, District 1, Seat A, Parish of Ascension, and, pursuant to R.S. 18:512, ordered the Secretary of State to call and certify a general election for the office and place the names of Green and Wayne on the official ballot for purposes of the general election to be held November 4, 1980. Green appeals.

Numerous errors are assigned.

Subpart E of Part IV of Chapter 5 of the Louisiana Election Code deals with the withdrawal of candidates. Section 502 thereof (R.S. 18:502) provides:

“A notice of withdrawal shall be effective when it is filed with the secretary of state, and the candidate who filed the notice no longer shall be qualified as a candidate in the election from which he withdrew. If the election ballot was printed with a withdrawn candidate’s name on it, any votes received by the withdrawn candidate shall be void.” (Emphasis supplied.)

Subpart F of Part IV of Chapter 5 of the Code deals with the election of candidates. Section 511(A) thereof [R.S. 18:511(A)] pertaining to a primary election provides in pertinent part:

“A. Majority vote. A candidate who receives a majority of the votes cast for an office in a primary election is elected.... ” (Emphasis supplied.)

We agree with appellee the issue here presented is identical to the one before the court in Murphy v. Democratic Executive Committee, 140 So.2d 249 (La.App. 4th Cir. 1962). Although the relevant statutes and the factual context varies as regards Murphy and the case now before us, we find the basic elements to be the same.

In Murphy, at p. 251, the court quoted the reasoning of the trial judge, agreeing with his solution to the problem:

“ ... [I]t would seem that the legislature makes a distinction by the use of the word ‘candidates’ in one section and the words ‘office for which he was a candidate’. In other words, a vote for an ineligible or withdrawn candidate could not count for him but in determining the amount needed for a majority insofar as the other candidates are concerned, his votes must be added since they were votes ‘east for the office for which he was a candidate’.”

Our examination of the statutory structure of the Louisiana Election Code and the ease with which Sections 502 and 511(A) thereof may be reconciled, fortified, by the reasoning of Murphy, leads to the conclusion that neither Green nor Wayne received the necessary majority to be declared a winner in the primary election. It follows that the relief afforded by the trial court to appellee is necessary and proper to effectuate the intént of the law and place the election machinery in operation for that purpose. See also, 26 Am.Jur.2d Elections §293.

Our review of the various exceptions filed by appellant satisfies us there are no valid procedural or substantive impediments to our consideration of the merits in this matter. Accordingly, the judgment of the trial court is affirmed. Appellant is cast for all costs.

AFFIRMED.


author: REDMANN, Judge.

text:
    In re Interdiction of Edna Lacroix, Widow of Walter F. POYNOT.
    No. 11963.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 14, 1980.
    Arthur C. Reuter, New Orleans, Harry R. Cabral, Jr., Metairie, for relator.
    William F. Wessel, New Orleans, for respondent.
    Before REDMANN, GARRISON and BARRY, JJ.
   REDMANN, Judge.

The persons who were co-curators of a now-deceased interdict apply for writs to reverse a judgment that annulled a judgment homologating their fourth provisional account (and authorizing payment by them of certain substantial charges, including curators’, undercurator’s and attorneys’ fees). The homologation was applied for during the lifetime of the interdict but not granted until ten days after her death, The homologation was set aside five days later on a rule filed by one claiming to be decedent’s executor.

In our view, the homologation was properly set aside, notwithstanding the curators’ complaint of lack of standing of the alleged executor, especially as of the time of the filing of the account, when the interdict was still alive. We would have a different question if the interdict were alive rather than dead when homologation occurred.

The death of the interdict terminated the authority of the curators. Death terminates mandate, La.C.C. 2037, and death transmits immediately all of the decedent’s property to the legal heirs, C.C. 940-948, or universal legatees, C.C. 1609-1610. If there is a succession representative, he or she is “deemed to have possession of all property of the succession .. .,” La.C.C.P. 3211. Thus the decedent’s estate belongs to the heirs or legatees, or the succession representative has possession, from the moment of death, and the decedent’s former curators have no authority to expend any funds. Debts that remain to be paid must be paid by decedent’s succession, either by executor or administrator or by the heirs. Curatorship is over upon the death of the interdict, and succession rules thereafter govern.

The remedy for the former curators is to file a final account, to be served upon the succession representative or the heirs. See C.C.P. 4554 and 4394(2). (See also West LSA-CCP Form 1094a, n. 3.)

Finally we point out that homologation of any account other than a final account merely constitutes prima facie evidence of the correctness of the account, C.C.P. 4396. The only question of substance in this case is whether, after the death of the interdict, the curators could dispense the funds formerly belonging to her. We rule that that authority and responsibility belongs to heirs or succession representative,

Writs are therefore refused,

      . We understand that provision, as applied to a curatorship, to require service “Upon the former [interdict, or succession representative, or heirs], if a final account is rendered after expiration of the [curatorship].”


text:
    Andrew MILLER, Jr., et al. v. NEW ORLEANS PUBLIC SERVICE INC.
    No. 12028.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 22, 1980.

      C. B. Ogden, II, New Orleans, for rela-tors.
    John A. Shea, New Orleans, for respondent.
    Before REDMANN, GULOTTA and CHEHARDY, JJ.
   REDMANN, Judge.

The Civil District Court for the Parish of Orleans has a printed form “Jury Trial Order,” one of whose provisions is: “Each attorney must submit a list of all witnesses who will be called at the trial to testify no less than three days prior to trial. The name of any witness not appearing on the list will be prohibited from testifying.”

In this suit arising from an omnibus’s collision with a pedestrian, the bus company did not submit a list of its witnesses (two of its drivers and a passenger), although plaintiff counsel knew from a discovery deposition their identity as witnesses to the accident (although, plaintiff responds, not that they would be witnesses at trial). The trial judge, before the trial scheduled for today began, ordered that no defense witnesses would be heard. Having before us the original of the written ruling and the opposition by plaintiff, we order that the witnesses be allowed to testify.

Accepting that the rule means that the witness (rather than his “name”) may not testify, it is only a witness whose name is not “on the list” whose testimony may be excluded: an opponent who receives a list of several witnesses may be surprised by the proposal of a witness whose name did not appear on the list, as in Carver v. Cabiro, La.App. 4 Cir. 1980, 381 So.2d 969, but an opponent who receives no list of witnesses should reasonably presume that some mistake has occurred rather than that the other side intends to call no witnesses. The quoted order simply does not rule that the penalty for overlooking to submit a list is that no witnesses will be allowed to testify. We have held such a rule would be a denial of hearing and thus of due process, impermissible as a penalty for non-compliance with a pre-trial order; Jimcoily v. State, Dept. Hwys., La.App. 4 Cir. 1978, 361 So.2d 982, writ refused, La., 363 So.2d 1384.

In any case, the purpose of the rule (notwithstanding the shortness of its three-day requirement) is presumably to afford notice to the opponent (although too late), and here the opponent knew the names of the three eye-witnesses. He cannot be surprised that defendant wishes to adduce their testimony at trial. It is therefore

ORDERED that the ruling complained of be reversed and witnesses Baker, Reed, and Kennedy be allowed to testify.


author: BROOM, Justice, for the Court:

text:
    UNITED STATES FIDELITY AND GUARANTY COMPANY and Hartford Accident and Indemnity Company v. Dianne Simmons PEARTHREE.
    No. 52125.
    Supreme Court of Mississippi.
    Sept. 24, 1980.
    Rehearing Denied Oct. 29, 1980.

      B. L. Riddick, Riddick & Carpenter, Jackson, Joe Clay Hamilton, Hamilton & Williamson, Meridian, for appellants.
    David A. Stephenson, Sandusky, Bailey, Fortenberry & Stephenson, Meridian, for appellee.
    Before PATTERSON, C. J., and BROOM and LEE, JJ.
   BROOM, Justice, for the Court:

Stacking uninsured motorist coverage and awarding damages to Dianne Simmons Pearthree on account of the death of her mother who was survived by her husband and by other siblings are the salient features of this case, appealed from the Chancery Court of Lauderdale County. Originally filed in county court, the action was upon motion transferred to chancery court. Appellants USF&G Co. and Hartford Accident & Indemnity Co. contend (1) that ap-pellee cannot be allowed to recover damages except those which she alone is entitled to recover, and (2) that the damages awarded are excessive.

The deceased, Mrs. Patricia Ann Shu-mate, a passenger in an automobile driven by James Fannin, was killed in an automobile accident on November 14, 1974. Fan-nin (also killed in the accident) owned the car which had uninsured motorist coverage on two automobiles under his policy with Hartford. Mrs. Shumate’s'husband, Edwin Earl Shumate, Sr., also had uninsured motorist coverage on two automobiles under his policy with USF&G. The negligent party liable for the accident was Fred M. Lof-ton, an uninsured motorist. Previously this case was before us, and we held: (1) the two policies may be aggregated and stacked so that the policies would be interpreted to provide coverage on each policy at $20,000 per person or $40,000 per accident even though each policy on its face contained limits of $10,000/20,000; (2) Mrs. Pear-three’s recovery is not “limited to 20% of the total amount payable . . . the policies mention no percentage limitation”; and (3) Mrs. Pearthree, under the USF&G and Hartford policies, is an “insured.” Pearthree v. Hartford Accident & Indemnity Co. and U.S.F.&G. Co., 373 So.2d 267 (Miss.1979). We remanded, and the lower court then awarded (without either litigant presenting additional testimony) appellee $30,000 damages and ordered Hartford and USF&G each to pay the sum of $15,000 which they contend was error.

By way of cross appeal, appellee Pear-three contends she should have been awarded $40,000 plus 6% interest from date she notified Hartford and USF&G of her claim. In her action, she sought $40,000 ($20,000 against Hartford and a like amount against USF&G). The parties stipulated that $12,-000 had already been paid on account of Patricia Simmons Shumate’s death, but Pearthree still demands $40,000 as being owed under the two policies. Of the $12,-000 previously paid on account of Mrs. Shu-mate’s death under the policies, USF&G had in good faith paid $10,000 in settlement of the claims of Mrs. Shumate’s three other children and her husband Edwin Shumate, Sr. Hartford paid $100 for a covenant binding Edwin Shumate, Sr. and minors Barbara Ellen Shumate and Edwin Earl Shumte, Jr. not to sue as a result of the death of Mrs. Shumate. Pyramid Life Insurance Company (not a party to this suit) settled with the Shumate family for $2,000. Counting $19,900 Hartford paid the Fannin family, and the $100 it paid Edwin Shu-mate, Sr., Hartford paid out $20,000 on account of the accident. USF&G paid out $10,000. The decree in the present appeal is silent as to whether the $30,000 award was in any way related to or based upon any consideration of the prior settlements. No clear indication appears in the decree as to what damages were personally awarded to Mrs. Pearthree inasmuch as the chancellor stated damages were as if the suit were for:

[C]omplainant’s own benefit and for all other wrongful death beneficiaries, leaving the ultimate question as to the disposition of any judgment rendered herein as between complainant and the other beneficiaries under the wrongful death statute as did the decision of the Supreme Court.

Appellee Pearthree is the only party plaintiff to the suit-no other wrongful death beneficiaries are parties.

Argument is made that the special chancellor erred in finding that the appellee was entitled to recover all damages which she would have been entitled to recover as if this action were brought for the complainant’s own benefit and for all other wrongful death beneficiaries under the Mississippi Wrongful Death Statute.

In Pearthree, supra, we held that:
Focusing upon the words “damages he [sic] is entitled to recover” in subdivision (3) of the Hartford policy and subdivision (c) of the USF&G policy, it is obvious the reference is to the same right arising under the applicable law of torts. Because the appellant would, under Mississippi Code Annotated Section 11-7-13 (1972) be “entitled” to maintain a wrongful death action for the death of her insured mother, it is beyond cavil, we think, that she too is an “insured” within the meaning of the Hartford and USF&G policies.
(At 271).

When Pearthree, supra, was previously before us, we held that “because” Mrs. Pearthree, under Mississippi Code Annotated § 11-7-13 (1972), was entitled to maintain a wrongful death action for her mother’s (Mrs. Shumate’s) death, she is an insured “within the meaning of the Hartford and USF&G policies.” 373 So.2d at 271. We did not hold that Mrs. Pearthree on the pleadings as cast should be awarded all damages which she would have been entitled to receive as if her suit were not only for her own benefit but also for all other wrongful beneficiaries under § 11-7-13, supra. Our opinion by Patterson, C. J., stated her recovery as an insured under the two policies is limited:

[T]o the extent of the aggregated per person limits, assuming her damages reach those limits.
(At 272).

Mrs. Pearthree’s suit (as conceded in her brief) did not present a wrongful death action; her language describes her action as a claim which “arises under the uninsured portion” of the policies. Having made no effort to bring this action for the benefit of the other beneficiaries, under our decisional law her claim cannot include issues not raised by the pleadings. Seymore v. Greater Mississippi Life Insurance Company, 362 So.2d 611 (Miss.1978). From the record, it is unclear why the lower court held that the damages were for the claimant Mrs. Pear-three and “for all other wrongful death beneficiaries.”

In Point II of Hartford’s appellant brief assertion is made that Mrs. Pear-three’s claim is limited by the pleadings and the proof to her claim as one of five beneficiaries, and further limited to the present value of any pecuniary advantages which the evidence shows that she had a reasonable expectation of receiving from the deceased, Mrs. Patricia Simmons Shumate, had she lived. We previously held that the lower court erred in stating that Mrs. Pear-three’s “recovery would be limited to twenty percent of the total amount payable.” As stated in our previous opinion written by Chief Justice Patterson, the policies made no mention whatever of any percentage limitation.

Another argument is that the lower court erred in finding that the limits are forty thousand dollars ($40,000) under the two insurance policies. There is no merit to this argument because the chancellor, in finding that the limits of liability under the two policies were $20,000 each, found precisely what our prior opinion mandated. Further argument is that the “per person limits, without a doubt, refer to the deceased, Mrs. Patricia Simmons Shumate, who was the actual ‘insured’ in this case.” This lacks persuasion because per person limits refer to all “insureds,” and Mrs. Pear-three is an “insured.”

It is next contended that the lower court erred in failing to give credit or consider $12,100 as being previously paid by USF&G, Hartford, and Pyramid Life Insurance Company. We hold that the effect of what had been paid by the other insurance companies would be to reduce the amount which is available under the limit of liability clauses in the two policies of USF&G and Hartford for a “per accident” occurrence.

Another argument is that the award of $30,000 by the special chancellor to the ap-pellee was in excess of the remaining balance of the combined per person limits of the policies of USF&G and Hartford. Also before us is the related contention that the award is excessive on the record as made. In pressing its argument, Hartford states that “it is obvious that the chancellor awarded $30,000.00 based upon the total value of all damages that would have been due and payable to the five beneficiaries just as though they were all parties to this action.” In dealing with the question of excessive damages, the argument seems to be that Mrs. Pearthree failed to prove elements of damages that would support the award of $30,000. In Dickey v. Parham, 295 So.2d 284, 285 (Miss.1974), Justice Robertson listed certain allowable elements of damages in death cases, and added the caveat that “there is no mathematical formula” applicable in every case but only “general guides.” The proof in this case shows that the deceased, Mrs. Shumate, at the time of her death was 36 years old, earning $120 per week working as a waitress, and had an additional life expectancy of 41.3 years. Simple arithmetic shows that her demonstrated earnings were approximately $6,000 per year. Such an annual earning for a person of the age of the deceased would amply support a verdict in excess of $50,000.

Pursuant to Dickey, supra, Mrs. Pearthree was entitled to prove and be compensated for her loss of the deceased’s society and companionship. Additionally, she was entitled to prove and be compensated for her one-fifth (Vs) of the present net cash value of the deceased’s life expectancy. We are unwilling to approve her recovery of the total net cash value of the deceased’s life expectancy inasmuch as she made no effort to assert her action for the benefit of any heir except herself. For her, upon the pleadings as cast, to recover her own losses plus what the other heirs were (except for their agreed settlement) entitled to receive would amount to a windfall in her favor. This is not contrary to our previous holding in Pearthree, supra, that the lower court erred in stating that Mrs. Pear-three’s “recovery would be limited to twenty percent of the total amount payable.” .Indeed her recovery may exceed twenty percent of the amount payable because the policies have no such limitation, but this does not mean that she may have a windfall and recover anything above her pro-rata share of losses and damages related to her mother’s death. The award must be kept within the policies’ aggregate limits.

Just why the settlement was made only with the other beneficiaries, husband and children of Mrs. Shumate, is not clear, but it is clear that Mrs. Pearthree was not a party to those settlements. The record does show that Mrs. Pearthree and Mr. Shumate discussed the possibility that he might file a suit.

Some if not all of the difficulties presented in this case would have been avoided had the insurance companies required an administration of Mrs. Shumate’s estate and made the estate party to the settlement rather than merely settling with the individual beneficiaries. At least, and without any full blown administration, payment could have been made into the registry of the chancery court and proceedings instituted under Mississippi Code Annotated § 91-1-27, et seq. (1972), to establish who were all the heirs of Mrs. Shumate. The insurance companies, as they have a right to do, elected not to open an administration, or conduct any judicial determination of the identity of all Mrs. Shumate’s heirs. In that context, payments were made to and releases accepted from four of the heirs. This in no wise can preclude Mrs. Pearthree from collecting damages within the “per person” limits of the two policies.

We would affirm here except for the fact that in deciding damages at the lower level, the chancellor did so as if the suit were not only for Mrs. Pearthree but also for all the other wrongful death beneficiaries. This was error because the other wrongful death beneficiaries were not parties to the action by which Mrs. Pearthree was suing for $40,-000 to the very end. Accordingly, the cause will have to be remanded for the chancellor to determine damages payable to Mrs. Pearthree as the sole party plaintiff to this suit.

We find no merit to the cross-appeal or other propositions argued.

AFFIRMED IN PART; REVERSED IN PART AND REMANDED.

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

      . Hartford had also paid passenger Eleanor M. Fannin $9,900 for her personal injuries she sustained in the accident; and $10,000 for the claims of Mrs. Fannin and the three minor children of James Fannin for his death.


author: LEE, Justice, for the Court:

text:
    John Sharpe LAMPKIN v. STATE of Mississippi.
    No. 52210.
    Supreme Court of Mississippi.
    Oct. 8, 1980.

      Randolph Walker, Walker & Turner, West Point, for appellant.
    Bill Allain, Atty. Gen. by Marvin L. White, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before SMITH, P. J., and LEE and BOWLING, JJ.
   LEE, Justice, for the Court:

John Sharpe Lampkin was convicted in the Circuit Court of Oktibbeha County for the crime of receiving stolen property and was sentenced to five (5) years in the Mississippi State Penitentiary. He appeals and assigns three (3) errors in the trial below.

I.

Did the trial court err in dismissing one of the appellant’s two attorneys, prior to trial, out of his presence?

Appellant was represented by the law firm of Turner and Walker after his indictment at the July 1977 Term of the Circuit Court of Oktibbeha County. Prior to the trial term, defense counsel Bennie Turner was appointed County Prosecuting Attorney of Clay County. On the morning of the trial, the district attorney told Attorney Turner that he would seek Turner’s removal from the case for that reason.

The district attorney’s motion was heard in chambers absent the presence of the appellant. The trial judge overruled such motion. Subsequently, Attorney Turner requested permission to withdraw from the case, since he was uncertain as to the interpretation of the law prohibiting county attorneys from defending people accused of crime within the circuit court district covering the county attorney’s residence. The trial judge allowed Attorney Turner to withdraw for that reason.

Appellant’s remaining counsel then filed a motion to continue the case because of Turner’s withdrawal, asserting that Turner was the chief counsel in the case. That motion was overruled,

Appellant contends that under Myers v. State, 354 So.2d 891 (Miss.1971), hearing of the motion to permit withdrawal of Turner was crucial in the trial and that the absence of appellant constituted reversible error. However, in Myers v. State, the question was different from that in the present case. There, the court-appointed attorneys for Myers moved the court to permit their withdrawal from the case, and made “serious accusations” against the defendant. This Court held that, under the circumstances of Myers, the defendant was entitled to be present and to respond to accusations against him.

In the case sub judice, the motion of the district attorney was overruled, but Turner was permitted to withdraw upon his own request. We are of the opinion that appellant had no constitutional right to be present on Turner’s request to withdraw as counsel, under the facts of this case, and that no error was committed by the lower court. See Boyington v. State, 389 So.2d 485 (Miss.1980). Likewise, the record indicates that appellant’s present counsel was familiar with all the facts of the case, that he adequately represented the appellant in the trial below, and that no prejudice resulted to appellant from Attorney Turner’s withdrawal from the case. Therefore, the first assignment lacks merit.

II.

Did the lower court err in declining to quash the search warrant and suppress the evidence obtained thereunder?

On the night of September 8, 1976, Officer Virgil Luke, who had investigated the present case for a considerable period of time, telephoned Justice Court Judge Mills and requested that Mills meet him and other officers at the Ramada Inn in Starkville, Mississippi, the purpose of the meeting being to obtain a warrant for the search of appellant’s premises. The justice court judge went to the motel where a number of officers were congregated. Officer Luke told him the purpose of the meeting and produced a warrant for the search. The affidavit for the search warrant was executed and underlying facts for the search were attached to, and made a part of, the affidavit. Judge Mills issued the search warrant after talking with the officers approximately forty-five (45) minutes. The warrant was executed and forty (40) automobile motors and transmissions were found on the premises, along with various and sundry other parts of vehicles.

Prior to trial, appellant moved the court to suppress the search warrant and the evidence obtained pursuant to the search on the ground that there was not probable cause for the issuance of the warrant. On the suppression hearing, testimony by the officers and Judge Mills was without dispute that the officers giving information, in addition to the affidavit and underlying facts, were sworn either before giving the information, or after, and that they swore the facts given by them were true and correct. Officer Luke testified that the officers were sworn before they began to talk with Judge Mills, while Judge Mills testified his recollection was that they gave him the facts and that he then administered the oath and the officers swore the information they had given him was true and correct.

In either event, the record indicates that the officers swore the information they were about to give, or had given, to the judge before he issued the search warrant was true and correct. Therefore, the holding of the lower court that there was probable cause to issue the search warrant was supported by the evidence and his action in overruling the motion to suppress was proper. Prueitt v. State, 261 So.2d 119 (Miss. 1972).

III.

Did the lower court err in refusing appellant’s request for a peremptory instruction, and was the verdict of the jury against the overwhelming weight of the evidence?

After receiving the search warrant, Officer Virgil Luke, Sheriff Dolph Bryan, and approximately eleven (11) other officers went to appellant’s premises for the purpose of searching same. The premises had been under surveillance for a long period of time. Asked to produce a key to a building situated approximately fifty (50) feet from his residence and to other buildings nearby on the premises, appellant stated that he did not have a key to the buildings, and that he had no knowledge of what was contained in them. The officers entered the closest building and discovered forty automobile engines and transmissions therein and further found that the serial numbers had been obliterated from the engines. Appellant made the statement that, “It ain’t no sense to carry them away from here; they hadn’t got no numbers on them.” He also said, “Y’all just go on and leave and there won’t be no trouble.”

The serial number on at least one of the engines was raised and the evidence established that it was the engine from a vehicle owned by Mary Bielawski, Chicago, Illinois, which was stolen from a restaurant parking lot in Calumet City, Illinois, in April, 1976. In view of the fact that the buildings containing the forty automobile motors and transmissions, and other automobile parts, were located on the premises of appellant and within a very short distance from his residence, and the statements by him mentioned above, there was a question for the jury to determine whether appellant knowingly and feloniously was in possession of stolen property.

There being no reversible errors in the trial below the judgment of the lower court is affirmed.

AFFIRMED.

SMITH and ROBERTSON, P. JJ., and SUGG, WALKER, BROOM, BOWLING and COFER, JJ., concur.

PATTERSON, C. J., took no part.

      . There was trouble. Appellant’s youngest son came upon the scene with a shotgun, a shootout ensued, and he was fatally injured.


author: MADDOX, Justice.

text:
    PROTECTIVE LIFE INSURANCE COMPANY v. Ruby Inez ATKINS.
    78-875.
    Supreme Court of Alabama.
    July 7, 1980.
    Rehearing Denied Sept. 26, 1980.
    Jim Beech of Tweedy, Jackson & Beech, Jasper, for appellant.
    Morris W. Savage and Charles R. Stephens of Bankhead, Savage & Stephens, Jasper, for appellee.
    Ira L. Burleson, William N. Ray, and Charles D. Stewart, Birmingham, for Assoc, of Ala. Life Ins. Companies, Amicus Curiae.
   MADDOX, Justice.

The appeal is from a jury verdict against Protective Life Insurance Company in favor of the plaintiff, Ruby Inez Atkins, in the amount of $42,605.00. Plaintiff, as admin-istratrix of her husband’s estate, sued Protective for breach of contract based on a mortgage protection policy issued by Protective on the deceased husband’s life. Under the policy, the balance due on the mortgage would be paid to the mortgagee, First Federal, in the event of the death of the holder of the insurance certificate.

The premiums on the policy for the first year were paid in advance. The deceased husband, Lawrence N. Atkins, who was the holder of the certificate, sold his house while the policy was still in effect. Since the deceased was in the hospital at the time, his son, Ronald, went to First Federal to pay the balance of the money owed on the mortgage. At First Federal, Ronald Atkins talked with Vernon Shaw, a vice-president of First Federal and a licensed Protective agent, who had authority to take credit life insurance applications, to forward them to Protective, to deliver insurance applications, to deliver insurance certificates, and to collect premiums. Shaw told Ronald that his father could keep his insurance in effect for the remainder of the year, or that he could get a refund for the prepaid unearned premiums. The agent also stated that if the father did not want to keep the policy, he could return it for a refund. The policy was not returned, and Lawrence N. Atkins died about a month later. After Protective denied coverage and returned the unearned premiums, the plaintiff sued to recover under the policy.

The policy provided that the insurance automatically terminated on the date that the mortgage loan was paid in full and that the policy could not be modified except with the consent of Protective’s president, vice-president or secretary. Shaw testified that his authority as an agent of Protective was very limited and that he thought his representations concerning the exchange of the mortgage insurance for life insurance were true. Shaw further testified that he had no conversation regarding his authority with Ronald Atkins. Ronald testified that his impression was that Shaw had the authority to bind the insurer.

The jury returned a verdict for the plaintiff and defendant appeals from an adverse judgment.

Appellant raises three issues on appeal: (1) whether Shaw’s representations could bind Protective; (2) whether private limitations upon the authority of an agent could bind a third party who contracts with the agent without knowledge of the limitations; and (3) whether the trial court erred in submitting the case to the jury. Put more simply, the issue in this case is whether Protective’s agent, Shaw, acted within the scope of his apparent authority in advising Ronald Atkins and whether Atkins was then entitled to rely upon Shaw’s representations.

This Court considered basically the same issues in Hartford Accident & Indemnity Co. v. Oglesby, 293 Ala. 620, 308 So.2d 695 (1975). In Hartford, Oglesby purchased an insurance policy from Hartford which covered both his personal and corporate vehicles under fleet coverage. Subsequently, Oglesby bought his seventeen-year-old son a high performance sports car. Hartford then informed him that this vehicle could not be covered under the fleet policy because of the age of the driver and the high-powered nature of the car. After his son went off to school, Oglesby told Hartford’s agent that the son would no longer be driving the car, but in fact, Oglesby himself would be the principal operator of the sports car. The agent then informed Oglesby that he would now cover the car under the fleet policy. The car was involved in an accident and Hartford denied coverage, specifically pointing out the limitations in its agency relationship with the agent with whom Oglesby had dealt.

The court there found that the limitations were not sufficient to preclude liability. The court stated:

“An agent who is, by certain limitations, less than a general agent may bind his principal as though he were a general agent by apparent authority. While an agent’s powers can be limited, and such limitations be binding as between the company and the agent, this could not affect third persons relying upon his apparent authority without notice of his limitations. Continental Casualty Co. v. Holmes, 266 F.2d 269 (5th Cir. 1959); Sun Insurance Office of London v. Mitchell, supra [186 Ala. 420, 65 So. 143].”

Were the representations made by Shaw within his apparent authority as an agent? Shaw, although primarily a vice-president of First Federal, was a licensed agent of Protective. As such, he provided a service to his loan customers and dealt with these customers as an agent of Protective. Protective provided insurance licenses to Shaw and its name appeared upon the front of the licenses. Shaw was designated o:' the licenses as having the status of “agent” rather than that of “solicitor” or some other designation. Protective, by providing these licenses, was holding Shaw out to be an agent, and Shaw, therefore, was in a relationship with Protective by which he could cause Protective to be bound by representations that he made within his apparent authority. This Court stated in Barnes v. Atlantic & Pacific Life Ins. Co. of America, 295 Ala. 149, 325 So.2d 143 (1975), quoting from several cases:

“ ‘... In such case, the defendant will not be permitted to take advantage of the wrongful act, or misconstruction, or mistake, of its own agent, and avoid the policy, the insured being without fault. * * * ’ Williamson v. New Orleans Insurance Ass’n, 84 Ala. 106, 108, 4 So. 36, 38 (1887). Accord, National Life and Accident Insurance Co. v. Allen, 285 Ala. 551, 234 So.2d 567 (1970); United Security Life Insurance Co. v. St. Clair, 41 Ala.App. 253, 130 So.2d 213 (1961).”

The construction given the policy was within Shaw’s apparent authority as an agent and therefore the insurer may be liable for such misconstruction or mistake.

We recognize that this Court, in Security Life and Trust Co. v. Galin, 280 Ala. 325, 193 So.2d 766 (1967), stated:

“An agent whose authority is limited to soliciting insurance, delivering policies and collecting premiums has no power to change stipulations in a contract of insurance; to do so he must either be a general agent or be specifically authorized or his course of dealing to that extent have been ratified expressly or impliedly. United Ins. Co. of America v. Headrick, 275 Ala. 594, 157 So.2d 19; Liberty National Life Ins. Co. v. Staggs, 242 Ala. 363, 6 So.2d 432.”

The record discloses, however, that Vernon Shaw was, in fact, held out as an agent rather than a mere solicitor as is contended by the appellant. As already discussed, Protective procured insurance licenses for Shaw and furnished them to him. Not only did Protective acquire the licenses %r Shaw, but its name appeared on these licenses as well, thus designating and holding Shaw out to be its agent and thereby capable of binding Protective by his actions. As stated in Hartford, the fact that there are limitations on an agency relationship and that such limitations are binding between the agent and the company does not affect third persons relying upon the agent’s apparent authority without notice of his limitations. In Elmer Tallant Agency v. Bailey Wood Products, Inc., 374 So.2d 1312 (Ala.1979), this Court said:

“Undisclosed, private limitations upon the authority of a general agent do not bind a third party who, being unaware of them, contracts with an agent within the customary scope of the agent’s authority. Mayo v. American Fire and Casualty Company, 282 N.C. 346, 196 S.E.2d 828 (1972).”

Appellant’s last contention is that the trial court erred in submitting the case to the jury. In St. Paul Fire & Marine Ins. Co. v. Anderson, 358 So.2d 151 (Ala.Civ. App.1977), the Court of Civil Appeals stated:

“The general rule is that the existence and scope of an agency relationship is for the jury to determine where the evidence is in conflict. Treadwell Ford, Inc. v. Wallace, 49 Ala.App. 308, 271 So.2d 505 (1973) (emphasis ours).”

In the present case, there was clearly sufficient evidence presented indicating an agency relationship to enable the trial court to submit the case to the jury for its determination.

The jury verdict for the plaintiff in the amount of $42,605 is due to be affirmed.

AFFIRMED.

FAULKNER, JONES, ALMON, SHORES and BEATTY, JJ., concur.

TORBERT, C. J., and EMBRY, J., dissent.

BLOODWORTH, J., not sitting.


author: PER CURIAM. BLOODWORTH, Justice MADDOX, Justice JONES, Justice

text:
    Margie MAPLES v. The CHINESE PALACE, INC., et al.
    78-662.
    Supreme Court of Alabama.
    Aug. 29, 1980.

      Theodore L. Hall, Mobile, for appellant.
    Donald M. Briskman, Mobile, for the Chinese Palace, Inc.
    Patricia K. Olney and Victor T. Hudson, of Pillans, Reams, Tappan, Wood, Roberts & Vollmer, Mobile, for the Met, Inc.
   On Rehearing

PER CURIAM.

The original opinion is withdrawn and this opinion is substituted for it.

This is an appeal from the dismissal, with prejudice under Rule 12(b)(6), ARCP, of a complaint of ten counts, filed by Margie Maples, the mother of Martha Brannon, a deceased minor, against the Chinese Palace, Blood Brothers, Inc., and Metropolitan Restaurant and Club, Inc., for damages arising from the allegedly unlawful sale of intoxicating liquors by the defendants to Martha Brannon.

In Counts One through Four the plaintiff sues as next friend of Martha Brannon, a deceased minor.

Count One is based on the death of Martha Brannon as a proximate result of the unlawful sale of intoxicating liquors to the minor.

Count Two is for the death of Martha Brannon as a proximate result of the unlawful sale of intoxicating liquors to her when she was intoxicated.

Count Three is for severe physical and mental anguish suffered by Martha Bran-non as a proximate result of the unlawful sale of intoxicating liquors to the minor.

Count Four is for severe physical pain and mental anguish suffered by Martha Brannon as a proximate result of the unlawful sale of intoxicating liquors to her when she was intoxicated.

In Counts Five through Ten the mother of the deceased minor sues individually. She sues, in Count Five, for the death of her minor daughter as a proximate result of the unlawful sale of intoxicating liquors to the minor.

She sues in Count Six for the death of her minor daughter as a proximate result of the unlawful sale of intoxicating liquors to Martha Brannon when she was intoxicated.

Margie Maples in Count Seven sues for the severe physical pain and mental anguish suffered by her minor daughter as a proximate result of the unlawful sale of intoxicating liquors to her.

She sues in Count Eight for severe physical pain and mental anguish suffered by Martha Brannon as a proximate result of the unlawful sale of intoxicating liquors to her when she was intoxicated.

Count Nine is as follows:

COUNT NINE

1. The Plaintiff is the mother of MARTHA BRANNON, deceased, who was a minor at the time of her death on or about the 28th day of January, 1978.

2. Plaintiff realleges and readopts Paragraphs 2-5 of Count One as though fully set out herein. (These paragraphs name the defendants.)

3. On or about the 28th day of January, 1978, Defendants unlawfully sold or otherwise furnished alcoholic beverage's or other intoxicating liquors or beverages to the deceased, Martha Brannon, a minor, who was then and there a customer or business invitee of the Defendants at their places of business in Mobile County, Alabama. The Defendants knew or should have known or could have ascertained through the exercise of proper and reasonable care that Martha Brannon, deceased, was in fact a minor.

4. As a direct and proximate result of the Defendants’ said negligent and unlawful acts, Martha Brannon, a minor was struck by an automobile on University Boulevard, causing her to suffer serious physical injuries which resulted in her death.

7. As a direct and proximate result of these injuries the Plaintiff, Margie Maples, was caused to incur the following damages: Plaintiff was caused to incur numerous medical expenses; Plaintiff was caused to lose the services of her minor daughter; Plaintiff was caused to incur funeral expenses for the burial of her minor daughter.

' WHEREFORE, Plaintiff demands Judgment against the Defendants in the sum of ONE MILLION AND NO/lOO DOLLARS ($1,000,000.00) plus Costs.

Count Ten is as follows:

COUNT TEN

1. The Plaintiff is the mother of MARTHA BRANNON, deceased, who was a minor at the time of her death on or about the 28th day of January, 1978.

2. Plaintiffs reallege and readopt Paragraphs 2-5 of Count One ás though fully set out herein.

3. On or about the 28th day of January, 1978, Defendants sold or otherwise furnished alcoholic beverages or other intoxicating liquors or beverages to the deceased, Martha Brannon, a minor, who was then a customer or business invitee of the Defendants at their places of business in the County of Mobile, Alabama.

4. The Defendants sold or otherwise furnished alcoholic beverages or other intoxicating liquors to the deceased, Martha Brannon, a minor, in violation of state law, for that said alcoholic beverages or other intoxicating liquors were sold or furnished to the deceased, Martha Brannon, a minor, when the said Martha Brannon was intoxicated. The Defendants knew or should have known or could have ascertained with the exercise of proper, reasonable discretion that Martha Brannon, deceased, was in fact intoxicated at the time said beverages were sold to her.

5. As a direct and proximate result of the Defendants’ negligent, unlawful sale of alcoholic beverages or other intoxicating liquors or beverages to the deceased, Martha Brannon, a minor, was struck by an automobile causing her to suffer serious physical injuries which resulted in her death.

6. As a direct and proximate result of said injuries and death, the Plaintiff, Margie Maples, was caused to suffer the following damages: Plaintiff was caused to incur numerous medical expenses; Plaintiff was caused to lose the services of her minor daughter; Plaintiff was caused to incur funeral expenses for the burial of her minor daughter.

WHEREFORE, Plaintiff demands Judgment against the Defendants in the sum of ONE MILLION AND NO/100 DOLLARS ($1,000,000.00) plus Costs.

The defendants filed motions to dismiss the complaint and each count thereof on the ground that it failed to state a claim upon which relief could be granted. The trial court granted the motions.

We hold that Counts One through Eight were properly dismissed; and Counts Nine and Ten should not have been dismissed.

This Court follows the rule “that a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Conley v. Gibson, 355 U.S. 41, 45, 46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957); Hamilton v. South Central Bell Telephone Company, 369 So.2d 16 (Ala.1979); Dunson v. Friedlander, 369 So.2d 792 (Ala.1979).

The appellant’s contention is that her complaint stated a claim under § 6-5-391, Code 1975, known as the Minor’s Homicide Act; § 6-5-70, Code 1975, known as the Civil Damage Act; and § 6-5-71, Code 1975, known as the Dram Shop Act.

Section 6-5-70, Code 1975, known as the Civil Damage Act is as follows:

Furnishing liquor to minors. Either parent of a minor, guardian or a person standing in loco parentis to the minor having neither father nor mother shall have a right of action against any person who unlawfully sells or furnishes spirituous liquors to such minor and may recover such damages as the jury may assess, provided the person selling or furnishing liquor to the minor had knowledge of such minority. Only one action may be commenced for each offense under this section.

Section 6-5-71, Code 1975, known as the Dram Shop Act, is as follows:

Right of action of wife, child, parent or other person for injury in consequence of illegal sale or disposition of liquor or beverages.
(a)Every wife, child, parent or other person who shall be injured in person, property or means of support by any intoxicated person or in consequence of the intoxication of any person shall have a right of action against any person who shall, by selling, giving or otherwise disposing of to another, contrary to the provisions of law, any liquors or beverages, cause the intoxication of such person for all damages actually sustained, as well as exemplary damages.
(b) Upon the death of any party, the action or right of action will survive to or against his executor or administrator.
(c) The party injured, or his legal representative, may commence a joint or separate action, against the person intoxicated or the person who furnished the liquor, and all such claims shall be by civil action in any court having jurisdiction thereof.

When a person sues as next friend of a minor, the minor is the real party to the suit; his rights are those litigated, and recovery belongs to him. Irwin v. Alabama Fuel & Iron Co., 215 Ala. 328, 332, 110 So. 566, 569 (1925). See also Johnson v. Pugh, 239 Ala. 12, 193 So. 317 (1940); Citizens Walgreen Drug Agency, Inc. v. Perry’s Pride, Inc., 348 So.2d 1038, 1040 (Ala.1977).

Rule 17(c), ARCP, contains among others, the following provision:

If an infant or incompetent person does not have a duly appointed representative, he may sue by his next friend.

Martha Brannon is dead. Therefore, Counts One through Four were defective.

Counts Five and Six were properly dismissed because they were based on the wrongful death of minor statute, § 6-5-391, Code 1975. Wrongful death statutes apply only when the decedent could have maintained an action for the wrongful act, omission or negligence if it had not caused death. Wolfe v. Isbell, 291 Ala. 327, 280 So.2d 758 (1973). Harris v. A. J. Spencer Lumber Co., 185 Ala. 648, 64 So. 557 (1914); Harris v. McNamara, 97 Ala. 181,12 So. 103 (1892). Martha Brannon could not have maintained an action for common law negligence against the defendants for the distribution of intoxicating liquors. DeLoach v. Mayer Electric Supply Co., 378 So.2d 733 (Ala.1979); King v. Henkie, 80 Ala. 505 (1886). Therefore, her mother cannot maintain an action under § 6-5-391.

A minor has no right of action under § 6-5-70, Code 1975. That section gives a right of action only to the parent, guardian or person standing in loco parentis to a minor having neither father nor mother. And, if living, Martha Brannon would have had no right of action under § 6-5-71, Code 1975. That section creates a right of action in favor of a “wife, child, parent or other person who shall be injured in person, property or means of support by any intoxicated person or in consequence of the intoxication of any person.”

The words, “every wife, child, parent,” in § 6-5-71 denote relationship to the person to whom the intoxicating liquors were sold.

We approve the construction which Judge Cooley gave to the words “other persons” in Brooks v. Cook, 44 Mich. 617, 7 N.W. 216 (1880):

But ’tis a sensible and well understood rule of construction that when after an enumeration, the statute employs some general term to embrace other cases, the other cases must be understood to be cases of the same general character, sort or kind with those named. . ..
Apply this rule here, and the party intoxicated is excluded. The persons enumerated are persons who stand to him in special relations, and it is therefore to be assumed that “any other person” who may sue must also stand to him in some special relation so as to be injured by his intoxication or by the sale, etc., to him.

See also Evans v. Kennedy, 162 N.W.2d 182 (Iowa 1968).

Counts Seven and Eight were properly dismissed because they were based on severe physical pain and mental anguish suffered by Martha Brannon to whom the intoxicating liquors were sold.

We opine, that, according to the standard for granting a motion to dismiss, as stated in Hamilton v. South Central Bell Telephone Company, and Dunson v. Fried-lander Realty, the motion to dismiss Counts Nine and Ten should have been denied.

The gravamen of a complaint under § 6-5-70 is the unlawful sale of spirituous liquors to a minor with knowledge or notice of the minority. It does not appear beyond doubt that the plaintiff can prove no set of facts in support of her claim under § 6-5-70 in Counts Nine and Ten.

If the plaintiff claims damages that are not recoverable, a motion to dismiss is not the proper method to test the recovera-bility of the damages claimed. The remedy is by motion to strike, objections to the evidence or request for instructions to the jury. Ringer v. First National Bank of Stevenson, 291 Ala. 368, 281 So.2d 261; Miller v. Tidwell, 276 Ala. 110, 159 So.2d 621. Dalrymple v. Alabama Farm Bureau Mutual Insurance Co., 267 Ala. 461, 103 So.2d 711.

We conclude that the trial court erred in dismissing Counts Nine and Ten. We pre-termit discussion of any other theory which may have been raised for recovery.

The judgment of the circuit court dismissing Counts One through Eight is affirmed; the judgment dismissing Counts Nine and Ten is reversed, and the case is remanded to the trial court for further proceedings.

Application for Rehearing granted.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

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

BLOODWORTH, J., concurs specially.

MADDOX, J., concurs in part and dissents in part.

JONES, J., concurs in part and dissents in part.

SHORES and BEATTY, JJ., concur with JONES, J.

BLOODWORTH, Justice

(concurring specially).

Upon original submission, the parties did not, in brief, direct our attention specifically to counts one through eight of the plaintiffs complaint. Thus, we did not treat these counts in our original opinion, but held that a cause of action was stated in counts nine and ten under Code 1975, §§ 6-5-70, 6-5-71. Therefore, we concluded that the trial court’s order granting the defendants’ Rule 12(b)(6) motions to dismiss was premature. We pretermitted discussion of all other theories of recovery advanced, namely, the first eight counts of the complaint.

Having reviewed this Court’s treatment of a Rule 12(b)(6) motion in a recent case, I have now concluded that where multiple claims are advanced by a plaintiff and the trial court grants a motion to dismiss as to all claims, this Court should address each claim to determine whether the trial court’s action was correct as to each claim. Dunson v. Friedlander Realty, 369 So.2d 792 (Ala.1979). I, therefore, concur in the decision to grant rehearing in order to determine which counts, if any, were properly dismissed by the trial court.

After due reflection, I now agree with the opinion on rehearing that counts one through eight of the plaintiff’s original complaint did not state a cause of action and were, therefore, properly dismissed. I also agree with the conclusion that the plaintiff stated a good cause of action under Code 1975, § 6-5-70 in counts nine and ten of her amended complaint. I would go further, however, and hold, as the original opinion held, that the plaintiff stated a good cause of action under Code 1975, § 6-5-71 in counts nine and ten of her amended complaint. The majority, in effect, hold that since the plaintiff has stated a cause of action in counts nine and ten under one theory of recovery (§ 6-5-70), it is unnecessary to address whether she has also stated a cause of action in the same counts under another theory of recovery (§ 6-5-71), permitting discussion of the latter theory. In the original opinion, a majority of the Court agreed with my conclusion that the plaintiff stated a cause of action under both § 6-5-70 and § 6-5-71, and I feel that conclusion is still valid.

MADDOX, Justice

(concurring, in part; dissenting; in part).

On original deliverance, Mr. Justice Bloodworth, writing for the Court, stated that the plaintiff has stated a cause of action under Section 6-5-70 and Section 6-5-71. Some members of the Court, after considering the application for rehearing, have changed their opinion and now conclude that plaintiff failed to state a cause of action under Section 6-5-71. A majority also addresses the question of whether plaintiff stated a cause of action under the wrongful death statute and concludes that she did not.

I concur in the opinion issued by the Court after consideration of the application for rehearing insofar as it states that the plaintiff stated a' right of action under Section 6-5-70; I disagree with the majority’s holding that plaintiff did not state a cause of action under Section 6-5-71, and did not state a cause of action under the wrongful death statute.

The legislature has made the sale of intoxicating liquor to a minor a wrongful act. If a minor, a member of the protected class, is injured or is killed, as a proximate result of that wrongful act, a cause of action is stated. In other words, the furnishing of intoxicating liquor to a person considered by the legislature to be incapable, by reason of age, to comprehend its dangerous character, is a wrong for which a remedy exists. See my dissent in Keller v. Kiedinger, 389 So.2d 129 (Ala.1980).

I agree with the majority that proper parties could recover a penalty in a civil action brought under Section 6-5-70, whether there was an injury or death which proximately resulted from the illegal sale. I do not agree, however, that a civil penalty is the only damage which can be recovered in such an action. I think that the words “such damages as the jury may assess” are broad enough to include the assessment of compensatory damages when injury proximately results from the illegal sale, and punitive damages when death proximately results from the illegal sale. In case of death, of course, there can be but one wrongful death action, whether brought under the Wrongful Death Statute or under Section 6-5-70.

In summary, I think the plaintiff could maintain an action under Section 6-5-71, for medical expenses, funeral expenses, and the loss of services of her minor daughter, and that she also has a cause of action for the death of her minor daughter and could recover punitive damages in this action, whether the wrongful death action was brought pursuant to the provisions of the Alabama Wrongful Death Statute or under Section 6-5-70.

JONES, Justice

(concurring in part and dissenting in part):

This is an appeal from the dismissal with prejudice, under ARCP 12(b)(6), of a civil action brought by the mother of a minor whose death is allegedly in consequence of the illegal sale or disposition of spirituous liquors violative of §§ 6-5-70 and 6-5-71, Ala. Code 1975. I agree that none of the statements of Plaintiff’s amended claim states a cognizable legal action under § 6-5-71. I further agree that those Counts, whose gravamen is the illegal sale of liquor to a minor proscribed by § 6-5-70, state a claim under which Plaintiff may prove a set of facts entitling her to relief; however, I am also of the opinion that Plaintiff may maintain a wrongful death action under § 6-5-391, predicated not upon the violation of either § 6-5-70 or § 6-5-71, but upon the violation of § 28-3-260(2).

I.

Rather than to treat the specific allegations of each statement of the claim, I believe a general discussion of the two applicable statutes will suffice to articulate the rationale for my partial concurrence with, and partial dissent from, the holding of the majority opinion. For reasons that will become apparent, I discuss these two statutes in reverse order. § 6-5-71 states .

“(a) Every wife, child, parent or other person who shall be injured in person, property or means of support by any intoxicated person or in consequence of the intoxication of any person shall have a right of action against any person who shall, by selling, giving or otherwise disposing of to another, contrary to the provisions of law, any liquors or beverages, cause the intoxication of such person for all damages actually sustained, as well as exemplary damages.
“(b) Upon the death of any party, the action or right of action will survive to or against his executor or administrator.
“(c) The party injured, or his legal representative, may commence a joint or separate action against the person intoxicated or the person who furnished the liquor, and all such claims shall be by civil action in any court having jurisdiction thereof.”

The difficulty of interpretation posed by § 6-5-71(a) is encountered in its very first words-“Every wife, child, parent or other person .. .Obviously, wife, child, and parent are words of relationship. Query: Relationship to whom? I think the answer, necessarily, is the wife, child, or parent of the intoxicated person or of the party injured in person by the intoxicated person. The first class of protected persons, then, is the wife, child, or parent of the intoxicant or of the personally injured party for loss in means of support. The phrase, “or other person,” constitutes the second class of claimants, i. e., anyone who is injured in person or property by the intoxicated party. See Webb v. French, 228 Ala. 43, 152 So. 215 (1934).

Admittedly, § 6-5-71’s description of those persons to whom the cause of action accrues (“... who shall be injured in person, property or means of support . . ..”) renders its interpretation even more complex. Query: Do each of these descriptive terms modify each member of the two protected classes? I think not; and this for the reason that the nature of the resultant injuries, as between the two classes, is necessarily different. Members of the first class do not include those injured in person, only their dependent relatives-wife, child, or parent. I would hold, therefore, that the only statutory right of action accruing to the first class-wife, child, or parent of the individual “injured in person”-is for injury in means of support “in consequence of the intoxication of any person.”

The second class of potential plaintiffs (embraced within the phrase “or other person”) is the person directly injured “by any intoxicated person or in consequence of the intoxication of any person”; and this right of action is for injury “in person [or] property.” Included within this second class, of course, is the wife, child, or parent who is injured in person or property by a drunken husband, parent, or child; and in this event the relationship of the claimant to the intoxicated person is purely coincidental.

While we could extend our interpretation to the remaining language of § 6-5-71, to do so would go beyond the scope of the issue here presented and serve no useful purpose. It is clear that the instant Plaintiff/Appellant, though the parent (mother) of the intoxicated minor, does not come within the restrictions on the right of action that accrues to a parent under § 6-5-71. She was neither injured in person or in property, nor did she suffer any loss of support in consequence of the intoxication of her minor daughter.

Thus, she is not a member of either of the statutorily protected classes. For the distinction between the terms, “injury” and “damage,” see Age-Herald Pub. Company v. Huddleston, 207 Ala. 40, 92 So. 193 (1921).

I now turn to an analysis of § 6-5-70:
“Either parent of a minor, guardian or a person standing in loco parentis to the minor having neither father nor mother shall have a right of action against any person who unlawfully sells or furnishes spirituous liquors to such minor and may recover such damages as the jury may assess, provided the person selling or furnishing liquor to the minor had knowledge of or was chargeable with notice or knowledge of such minority. Only one action may be commenced for each offense under this section.”

No Alabama appellate court has interpreted this Statute; but its meaning, including the phrase, “may recover such damages as the jury may assess,” seems abundantly clear. In the context of this case, the Plaintiff/parent has a right of action against the “person who unlawfully [sold or furnished] spirituous liquors to [her minor child] . .. provided the person . .. had knowledge of or was chargeable with notice or knowledge of such minority.” The requisite elements of this statutory right of action are met in Plaintiffs claim as averred in Counts Nine and Ten of her amended complaint.

Next, I address the issue: What damages are allowable under § 6-5-70? While this statute has not been interpreted previously by this Court, the phrase, “such damages as the jury may assess,” is not an unfamiliar one to our jurisprudence. These are the exact words employed in our wrongful death statutes-§§ 6-5-391 and 6-5-410-which uniformly have been interpreted to mean punitive damages only. Merrell, as Administratrix, etc. v. Alabama Power Co., 382 So.2d 494 (Ala.1980). In the context of § 6-5-70, the words “such damages as the jury may assess” do not provide recovery for actual damages. L. & N. R. R. Co. v. Bogue, 177 Ala. 349, 58 So. 392 (1912); Eich v. Town of Gulf Shores, 293 Ala. 95, 300 So.2d 354 (1974).

I recognize, as Appellees point out, that the Plaintiff claims damages not recoverable under § 6-5-70. A motion to dismiss, however, is not the proper method to test the sufficiency of a complaint with respect to improper elements of damages claimed therein. The remedy is by motion to strike, objections to the evidence, or request for instructions to the jury. Ringer v. First National Bank of Stevenson, 291 Ala. 364, 281 So.2d 261 (1973).

The predecessor of § 6-5-70 had no provision for the recovery of damages; but it was amended in 1923 so that the successful plaintiff might recover punitive damages. The gravamen of a claim under § 6-5-70 is the unlawful sale of spirituous liquors to a minor with knowledge or notice of the minority, not the nature and extent of the injury in consequence of the statutorily proscribed illegal sale or that any injury whatsoever even ensued.

This does not mean, however, that evidence of any resultant injury, its nature and extent-including death-is irrelevant to the issue of damages. Because the statutory measure of damages is exclusively punitive (vindicative or exemplary), all the circumstances surrounding the wrongful act (the unlawful sale to a minor with knowledge or notice of such minority) are factors for the jury’s consideration in assessing the damages commensurate with the degree and enormity of the wrong. Among these circumstances may be the age of the minor, the quantity of the sale, the minor’s condition, or apparent condition, at the time of sale, the period of time over which the unlawful sale took place, and the resultant injury or damage, if any, including death.

Although this is the first case presented to this Court on the measure of damages permissible under § 6-5-70, the applicable rule need not be cut altogether from whole cloth. Except that death in consequence of the wrongful act is a necessary element of the right of action for wrongful death, the rule here suggested is entirely consistent with the established principles applicable to the law of damages under our wrongful death statutes, both of which employ the identical phrase, “such damages as the jury may assess.” While it is not the resultant injury to the minor for which the parent is statutorily granted a right of action, the jury, in assessing punitive damages, may consider all relevant circumstances bearing on the degree of culpability of the wrongdoer. Indeed, if this were not so (i. e., if the only relevant evidence consists of the wrongful sale with knowledge or notice of minority), then every such wrongful act would equate every other such wrongful act; and in such event, undoubtedly, the Legislature would have fixed by statute a uniform civil penalty for each and every violation, rather than saying “such damages as the jury may assess.”

II.

Finally, I address the basis for my partial dissent. I agree with the explicit holding of the majority opinion that “wrongful death” cannot be predicated upon the violation of either § 6-5-70 or § 6-5-71. That neither of these statutes provides a legal predicate for a wrongful death claim is demonstrated by their analyses in Part I above. This is true because, within the factual context of this case, the minor, had she lived, could not have maintained an action for her injuries under either statute-a requisite for a wrongful death suit.

I do not agree, however, with the majority’s implicit holding that it appears beyond doubt that Plaintiff can prove no set of facts in support of her wrongful death claim which would entitle her to relief. The conclusion that Plaintiff cannot predicate a wrongful death claim on the Civil Damage or the Dram Shop Acts does not answer the ultimate inquiry: Is there any conceivable set of facts which Plaintiff may prove in support of her claim for the wrongful death of her minor child?

Our search for the answer to this disposi-tive issue must begin by looking to the statute to which § 6-5-70 refers when it conditions the prescribed “right of action against any person who unlawfully sells .. . spirituous liquors to [a] minor.” The statute proscribing as unlawful the sale of alcohol to a minor-§ 28-3-260(2)-makes it unlawful:

“For any licensee to sell, furnish or give any beverages to any person visibly intoxicated or to any insane person or to any minor or to habitual drunkards or to persons of known intemperate habits.”

This legislative expression of the public policy of this State, in my opinion, enures, inter alia, to the benefit of the minor who is injured in consequence of its violation. That the protection of the incapacitated (here, the minor) is one of the primary objects of the criminally proscribed activity is not militated against by the further fact that the minor may also be criminally accountable. See § 28-3-266, prohibiting the purchase of alcohol by a minor.

The majority opinion cites DeLoach v. Mayer Electric Supply Co., 378 So.2d 733 (Ala.1979), and King v. Henkie, 80 Ala. 505 (1880), for the proposition that a minor cannot maintain “an action for common law negligence against [the seller] for [the distribution of intoxicating liquors.]” Neither of these cases involves either a minor or a claim predicated upon the violation of § 28-3-260(2). Notwithstanding this factual dissimilarity, I do not challenge the precedent of DeLoach and King to the effect that neither a minor nor an adult can maintain “an action for common law negligence” under the instant circumstances. But it is a different matter altogether to extend this precedent to preclude the minor from the protective ambit of the public policy expressed in § 28-3-260(2). See the dissenting opinion of Mr. Justice Maddox in Keller v. Kiedinger, 389 So.2d 129 (Ala.1980).

SHORES and BEATTY, JJ., concur.

      . While the full context of § 6-5-71 is set out in aid of its interpretation, only subsection (a) is pertinent to our instant inquiry.

      . It may be persuasively argued, though not here decided, that “or other person” plays a dual role in that it also enlarges the first class to include other unnamed dependents of the injured person.

      .The reference to first and second class is not intended to denote priority, but only that the statutory right of action runs to two classes.

      . An example of a plaintiff who is a member of both of the statutorily protected classes is a wife whose automobile, driven by her husband, is damaged by collision with a drunken driver, and who suffers loss of support because of her husband’s resultant personal injuries.

      . It should be borne in mind that these factors are not defenses against liability once the pri-ma facie elements of the statutory right of action are established, but they may be admitted into evidence by either party on the issue of the gravity of the wrong. For example (not necessarily in the context of the instant case), although the defendant may be legally chargeable with notice of minority, the defendant may prove the person to whom he sold or furnished the intoxicated drink represented himself or herself as an adult and that his or her physical appearance comported with such representation; or the defendant may show that upon discovery of the fact of minority, he declined to sell or furnish additional drinks. Likewise, the converse circumstance would be admissible.