text:
    Trudy Oppenheim, wife of/and Gerd L. OPPENHEIM and Daniel Oppenheim v. MURRAY HENDERSON UNDERTAKING COMPANY, INC., and Allstate Insurance Company.
    No. 12919.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 11, 1982.
    Milton E. Brenner, New Orleans, for plaintiffs-appellants.
    Glenn B. Adams, David J. Mitchell, Porteous, Toledano, Hainkel & Johnson, New Orleans, for defendants-appellees.
    Before KLEES, BYRNES and CIACCIO, JJ.
   BYRNES, Judge.

This action arises out of an automobile accident which occurred on October 5, 1978 on First Street (River Road) in Gretna, Louisiana. Mrs. Trudy Oppenheim, the Plaintiff, was preceding upriver when the vehicle she was driving (said vehicle owned by her son, plaintiff, Daniel Oppenheim) was struck from behind by a hearse driven by Wilton Ambrose, an employee of Murray Henderson Undertaking Company.

At the start of the jury trial on this matter, the amount of damages to the vehicle and the community expenses incurred by Gerd Oppenheim, husband of Mrs. Op-penheim, were stipulated. Both drivers testified as well as several lay witnesses for the plaintiff and the deposition of Dr. Stuart Phillips was introduced in lieu of his live testimony. At the close of the evidence, the plaintiffs moved for and were granted a directed verdict on liability, leaving only the amount of general damages due Mrs. Oppenheim to be decided by the jury.

Thereafter, the jury returned a verdict for general damages in the amount of $6,500.00 in favor of Mrs. Oppenheim.

Defendants bring this appeal arguing that the trial judge erred in directing a verdict on liability against defendants when there was sufficient evidence that reasonable men might differ as to the negligence of the defendant’s employee. It is further maintained by appellants that the amount of damages awarded to the plaintiff for her personal injury were excessive and should be reduced.

The standard for granting a directed verdict (Art. 1810(A) of the Louisiana Civil Code of Civil Procedure) was set out in Campbell v. Mouton, 373 So.2d 237 (La.App. 3rd Cir. 1979), whereby the court stated:

“[The statute allows] the judge to conclude the litigation (in a jury trial) if the facts and inferences are so overwhelmingly in favor of the moving party that the court believes that reasonable men could not arrive at a contrary verdict.”

The court, in Campbell, further states that the standard of proof is to be based on the Federal standard and cites the language in Boeing Co. v. Shipman, 411 F.2d 365 (5th Cir. 1969) in enunciating the state standard to be used:

“On motion for directed verdict and for judgment notwithstanding the verdict that Court should consider all of the evidence — not just that evidence which supports the non-mover’s case — but in the light and with all reasonable inferences most favorable to the party opposed to the motion. If the facts and inferences point so strongly and overwhelmingly in favor of one party that the Court believes that reasonable men could not arrive at a contrary verdict, granting of the motions (sic) is proper. On the other hand, if there is substantial evidence opposed to the motions, that is, evidence of such quality and weight that reasonable and fair-minded men in the exercise of impartial judgment might reach different conclusions, the motions should be denied, and the case submitted to the jury.”

Applying this standard to the present case, we find that the trial judge did not err in granting a direct verdict in favor of plaintiffs. The testimony of Mr. Ambrose, driver of the hearse is very straightforward. He applied the hearse’s brakes, the vehicle slid on some gravel or sand which was on the road due to construction work and hit Mrs. Oppenheim’s car in the rear. He was traveling approximately twelve miles per hour at the time of the impact. There was no evidence that any action of Mrs. Oppenheim precipitated this rearend collision. A following vehicle in a rearend collision is presumed to be negligent, absent any proof to the contrary. See Cisneros v. Ferro, 411 So.2d 1212 (La. 4th Cir. 1982, 4th Cir.). As no evidence of contributory negligence on the part of Mrs. Oppenheim was raised, before the motion for directed verdict was given, we must concur with the judge’s decision in granting the directed verdict in favor of plaintiffs with regard to liability.

Quantum

According to Dr. Stuart Phillips, the defendant suffered a classical cervical sprain. He prescribed aspirin and heat because the defendant was not able to take muscle relaxants. She suffered neck pain some two and one-half years after the accident. A conscientious effort was made by the plaintiff not to incur excessive medical bills.

In affirming the lower court’s award of $6,500.00 for injuries sustained by Mrs. Op-penheim, we need merely to state that the award was well within the range of discretion allowed the lower court. See Reck v. Stevens, 373 So.2d 498 (La.1979).

For the reasons stated above, we hereby affirm in whole the lower court’s decision. All costs of this appeal are to be borne by appellants.

Affirmed.


source: Caselaw Access Project

author: LOBRANO, Judge.

license: Public Domain

text:
    Leah GREENWALD v. NEW ORLEANS PUBLIC SERVICE, INC.
    No. 12910.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 11, 1982.
    Floyd F. Greene, New Orleans, for defendant/appellant.
    J. Michael Cumberland, Badeaux, Discon, Cumberland & Barbier, New Orleans, for plaintiff/appellee.
    Before REDMANN, LOBRANO and AUGUSTINE, JJ.
   LOBRANO, Judge.

Plaintiff, Leah Greenwald, brought this suit against New Orleans Public Service (NOPSI) for damages received by her while a passenger on defendant’s bus. After trial on the merits, the trial court rendered a judgment in favor of plaintiff from which NOPSI perfected this appeal.

The sole issue presented on appeal is whether the trial court committed manifest error in its application of the facts to the law on the question of NOPSI’s liability. We hold that the trial court did not commit manifest error in that respect.

The accident occurred on April 12, 1976, at approximately 12:30 p. m. on a South Claiborne Line bus. Plaintiff, who was 73 years old at the time of the incident, boarded the bus at the regular bus stop at Loyola Ave. then moved towards the rear of the bus to find a seat. The bus proceeded for approximately a block when, without warning, it came to a sudden stop. As a result of the stop plaintiff fell to the floor and sustained injuries.

The law applicable to the duty incumbent upon common carriers of passengers is clearly set forth in Carter v. NOPSI, 305 So.2d 481 (La.1975). The Carter case re-affirmed the well established jurisprudential rule that common carriers are charged with the duty of exercising the highest degree of care to their passengers and are liable for the slightest negligence causing injury to those passengers. The mere showing of an injury to a fare paying passenger on a public conveyance and his failure to reach his destination safely imposes upon the carrier the burden of exculpating itself of negligence. The common carrier is not however the insurer of the passenger’s safety against the negligent acts of third parties and their palpable disregard of the law.

Defendant does not dispute that the plaintiff was a fare paying passenger on the bus when she sustained her injuries. Nor do they dispute that the bus stopped suddenly, throwing plaintiff to the floor, resulting in her injuries. Defendant’s only argument is that the trial court erred in holding that NOPSI failed to discharge the burden of exculpating itself from negligence under the circumstances.

NOPSI’s bus driver testified that he stopped suddenly to avoid hitting a car which had veered into his path. The deposition of Ellander Jackson, a witness, was introduced into evidence at the trial, and basically corroborates the driver’s testimony. Plaintiff did not see what caused the bus to stop suddenly.

The reasons for judgment clearly indicate that the trial judge specifically rejected the testimony of NOPSI’s driver after viewing his demeanor and credibility and also pointed out the inconsistencies in Ellander Jackson’s deposition, the most noteworthy of which was her inability to describe the car which allegedly caused the bus to stop. Thus the trial court finding that the testimony and evidence presented by the defendant was unreliable and self serving, held that the heavy burden imposed by the law upon common carriers to exculpate themselves from negligence had not been met, and therefore rendered judgment for the plaintiff.

Our review of the record indicates that there was no manifest error in the trial court’s appraisal of the credibility and demeanor of the witnesses, and its ultimate conclusion.

Additionally, the bus driver testified that he recognized the duty incumbent upon him to take extra precautions for elderly passengers, such as seeing they were either seated or holding onto the safety straps before moving'the bus forward. The driver was aware that plaintiff was elderly yet failed to take the very steps for her safety which he stated were part of his training. This breach of duty is an additional factor which on review convinces us that defendant failed to exculpate itself from negligence.

In Arcenaux v. Domingue, 365 So.2d 1330 (La.1978) the Supreme Court stated, “... the appellate review of facts is not completed by reading so much of the record as will reveal a reasonable factual basis for the finding in the trial court; there must be a further determination that the record establishes that the finding is not clearly wrong.” Id. at 13S3. In the case at bar the finding of the trial court was not clearly wrong.

For the above and foregoing reasons the judgment of the trial court is affirmed.

AFFIRMED.


text:
    Betty Hopson ANSELMO v. CHRYSLER CORPORATION.
    No. 12943.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 11, 1982.
    Adelaide Baudier, Metairie, for plaintiff/appellee.
    Kenneth H. LaBorde, McGlinchey, Stafford & Mintz, New Orleans, for defendant/appellant.
    Before REDMANN, LOBRANO and AUGUSTINE, JJ.
   LOBRANO, Judge.

On September 8, 1979, Betty Hopson Anselmo purchased a new 1979 Chrysler Newport from Star Chrysler Plymouth Sales, Inc. On September 10, 1979 she took delivery of the vehicle, and thence began her ordeal which led to the filing of this lawsuit. Plaintiff instituted these proceedings on January 15, 1980 against Star Chrysler Plymouth Sales, Inc. and Chrysler Corporation seeking rescission of the sale and attorney fees because of alleged rehibitory defects. The trial court rendered judgment in favor of plaintiff, Betty Hopson Anselmo, and against Chrysler Corporation rescinding the sale and ordering a return of the purchase price in the amount of $7,651.50, plus interest and costs. The court refused to award attorney fees. From said judgment appellant, Chrysler Corporation, perfects this appeal. Betty Hopson Anselmo answered the appeal seeking an award of damages in the amount of $1,385.00, plus attorney fees in the amount of $2,500.00.

Appellee sought rescission of the sale based on the following defects which she alleges are redhibitory within the meaning of Civil Code Article 2520.

1. Defective transmission
2. Faulty windshield wipers
3. Gas tank leak
4. Faulty Brakes
5. Faulty lights
6. Broken Gas gauge
7. Doors would not open properly or unlock
8. Doorknob came off
9. Plastic bumpers

Appellee’s testimony makes it clear to this Court that between September 10,1979 and November 28,1979 the car was returned for repairs a minimum of four times, and possibly as many as six. The main concern was the defective transmission. Initially appel-lee did not pick up the car but had it delivered to her home and parked in her driveway. When she attempted to drive it, she had difficulties with the transmission. She complained of a terrible “growling” type noise and an inability to get it in reverse. The dealer attempted to repair this problem, and the other problems complained of on the numerous times the ear was returned.

Appellee’s sister, Miss Claudine Hopson, testified that she was familiar with the subject car. Her testimony reflects that it was returned to the dealer for repair at least five times for a variety of problems, including the transmission. This witness had previous mechanical training since she served in a motor pool in the WACS, and testified she could “.. . take a car apart and put it together again.” She accompanied her sister every time the ear was returned to the dealer, and stated the problems as follows:

“I drove it. And the transmission growled and it wouldn’t go in reverse. There was a gas leak in the gas tank. Part of the windshield wiper knob fell off. The dash lights wouldn’t work. It leaked, on the right side especially, both doors and windows. Electrical wiring was all spread out across the rear floorboard. And the bumpers were supposed to have been metal, and they were plastic. You could touch them and they dented the rounded part in the rear. And we went to get the brake tag and they refused us, permanent tag because of the brakes and lights. They were supposed to put in a new gas tank, a new transmission and all of these other repairs, and all they did, I think, was to get grease and everything all over the seat and the floorboard in the front.
Q. To your knowledge was any of these defects in the car corrected prior to it being returned to Star Chrysler the last time?
A. The only thing that I noticed that was corrected was the dash lights. They did come on.”

Both appellee and her sister testified that they had difficulties in getting a brake tag, and were successful only after having the persons at the Amoco Station who issued the tags do repair work on the lights and brakes.

Appellee also had an expert mechanic examine the vehicle. His recommendation was that appellee not drive the vehicle because he thought it was- dangerous. When asked “... what the problems were,” his response was as follows:

“Well, the major problem that I remember when I drove the car, that the car would barely back up. The transmission was slipping so bad it would barely back. After I drove the car, you had to pump the brakes to stop it. None of the lights worked on the car. The turning signal didn’t work. There was gas leaking from the gas tank. And I only drove the car for eight blocks, something in that neighborhood.”

The “coup de grace” for appellee was November 28, 1979 when the vehicle again failed to go in reverse as she was leaving her daughter and son-in-law’s home after a Thanksgiving dinner. The following day a wrecker brought the car to Star Chrysler where it stayed until the day of trial. After that appellee simply refused to accept delivery.

Appellant, Chrysler Corporation, alleges that the trial court erred: (1) in finding that the defects were of such a redhibitory nature as to require a rescission of the sale; and (2) in refusing to view the vehicle on the day of trial. The thrust of appellant’s argument is that the defects complained of were of a minor nature and did not render the vehicle unfit for its intended purpose and use. Further it claims that many of the alleged defects did not exist at all. To support this argument, Mr. J. T. Meals, appellant’s regional representative inspected the vehicle on January 7, 1980, and “. .. was unable to find any of these problems.” The Supreme Court in the case of Rey v. Cuccia, 298 So.2d 840, 842-843 (La.1979) set forth the current state of our law in regard to actions in redhibition.

“A redhibitory defect entitling the buyer to annul the sale is some defect in the manufacture or design of a thing sold ‘which renders it either absolutely useless, or its use so inconvenient and imperfect that it must be supposed that the buyer would not have purchased it, had he known of the vice’. Article 2520. Upon proof of such a defect, the buyer is entitled to annul the sale and recover the purchase price, rather than being limited to recovering the cost of curing any such substantial defects. Prince v. Paretti Pontiac Company, Inc., 281 So.2d 112 (La.1973).
The buyer must prove that the defect existed before the sale was made to him. Article 2530. However, if he proves that the product purchased is not reasonably fit for its intended use, it is sufficient that he prove that the object is thus defective, without his being required to prove the exact or underlying cause for its malfunction. J.B. Beaird Co. v. Burris Bros., 216 La. 655, 44 So.2d 693 (1949); Crawford v. Abbot Automobile Co., Ltd., 157 La. 59, 101 So. 871 (1924); Stumpf v. Metairie Motor Sales, Inc., 212 So.2d 705 (La.App. 4th Cir. 1968); Fisher v. City Sales and Services, 128 So.2d 790 (La.App. 3d Cir. 1961).
If the defect appears within three days following the sale, it is presumed to have existed before the sale. Article 2537. However, even where the defect appears more than three days after the sale (as here, when it appeared on the second day of use, but ten days after the sale), if it appears soon after the thing is put into use a reasonable inference may arise, in the absence of other explanation or intervening cause shown, that the defect existed at the time of the sale. Andries v. Nelson, 46 So.2d 333 (La.App. 1st Cir. 1959); Standard Motor Car Co. v. St. Amant [18 La.App. 298], 134 So. 279 (La. App. 1st Cir. 1931). See, for similar principle, when a constructed thing fails shortly after being put into use. Joyner v. Aetna Casualty & Surety Co., 259 La. 660, 251 So.2d 166 (1971).”

And as was stated by the author in 50 Tul.L.R. 530 (1976):

“Perhaps a separate category of redhibi-tory defect is that described as the “lemon” by Louisiana courts. The colloquial expression “lemon” is understood to mean an item plagued by a variety or series of defects. Proof that an item is plagued with minor defects may sustain article 2520’s “must be supposed” test and warrant redhibition rather than mere reduction in price.
One example of a “lemon” was the automobile in Cleveland v. Chrysler Motors Corp. [259 So.2d 450]. It had a conglomeration of troubles, of which probably none was so serious by itself as to warrant redhibition; the windows and trunk leaked; the engine stalled frequently while idling, especially while the air conditioner was running; a turn signal indicator fell off; the radio worked sporadically; the electric controls for the seat malfunctioned; the car had a rough ride; the trunk latch stuck; a door was improperly aligned; the windshield washer did not work; the speedometer clicked audibly; the electric windows malfunctioned; and the headlights were cracked. The trial judge expressly reasoned that the “must be supposed” test was met: ‘An ordinary buyer would not have purchased the car had he known of the conditions complained of.’ Similarly, the court in Dunlap v. Chrysler Motors Corp. [299 So.2d 495], based redhibition on noises and wheel imbalance, ‘among other defects’.” Id. at 536, 537.

This “Chrysler” certainly was a “lemon” with numerous defects which we have set out. Undoubtedly, Betty Anselmo would not have purchased this automobile had she known of the trouble in store for her.

Civil Code Article 2521 provides: “Apparent defects, that is, such as the buyer might have discovered by simple inspection, are not among the number of redhibi-tory vices.” La.C.C.Art. 2521. Appellant contends that the problems with the transmission, i.e. the growling noise, and the vehicle stalling, were all apparent defects and would not constitute redhibitory vices. We disagree. A buyer is only under a duty to make an inspection which is reasonable in light of all the circumstances surrounding the sale of the product. Whether an inspection is reasonable depends on the facts and circumstances of each case, and includes such factors as the knowledge and expertise of the buyer, the opportunity for inspection, and the assurances made by the seller. Additionally a purchaser is not required to examine inner or hidden parts of an object, but must discover what a reasonably prudent purchaser acting under similar circumstances would have discovered. Guillory v. Sarpy, 177 So.2d 403 (4th Cir. 1965). See, Prince v. Paretti Pontiac Co., 281 So.2d 112 (La.1973) where a defective transmission was held not to be an apparent defect.

The existence of a redhibitory defect is a question for the trial judge and should not be disturbed on appeal in the absence of manifest error. Clinkscales v. Superior Pontiac-GMC., Inc., et al., 365 So.2d 895 (La. App. 4th Cir. 1978).

Here, the trial judge clearly did not abuse his discretion in finding that these defects existed at the time of the sale.

It is well settled in our jurisprudence that the manufacturer is presumed to know of the defect in the thing made by him. Rey, supra. Thus he is considered a bad faith seller and falls within the ambit of the following Civil Code provision. “The seller, who knows the vice of the thing he sells and omits to declare it, besides the restitution of the price and repayment of the expenses, including reasonable attorneys’ fees, is answerable to the buyer in damages.” La.C.C.Art. 2545.

The next issue for our determination is whether the trial judge committed error by not awarding plaintiff attorneys’ fees. In his reasons for judgment the trial judge states “... nor has any evidence been introduced with reference to the value of any legal services performed by plaintiff’s counsel which would warrant a judgment for attorneys’ fees.”

Our courts have uniformly held that evidence of the value of an attorney’s services is not necessary where the services are rendered under the supervision of the court. The factors to be considered in fixing attorney fees in a redhibition or quanti minoris case are:

(1) the responsibility incurred
(2) the extent and nature of the work performed
(3) the legal know how and skill of counsel Sokol v. Bob McKinnon Chevrolet, Inc., 307 So.2d 404 (La.App. 4th Cir. 1975).

In this case the services of plaintiff’s attorney were rendered under the eyes of the court and the trial judge should have made an award based on his estimation of their value.

Our review of the record convinces us that an award of attorneys’ fees in the amount of $2,500.00 is reasonable considering the amount of recovery allowed, and the time spent by plaintiff’s counsel below and on appeal.

Pretermitting the question of whether the trial judge erred in refusing to examine the automobile in question on the day of trial, we hold that his refusal to do so was harmless error, if error at all.

Appellee prays for damages in the amount of $1,385.00. The trial judge refused to grant these damages as no evidence was introduced in support thereof. Our review of the record fails to find any evidence as to the nature of these damages and thus there was no error in the court’s refusal to award same to plaintiff.

For the reasons assigned, the judgment appealed from is amended to grant plaintiff the additional sum of $2,500.00 against, defendant Chrysler Corporation, as a reasonable attorney fee. As thus amended, and in all other respects the judgment appealed from is affirmed.

AMENDED AND AFFIRMED AS AMENDED.

      . Star Chrysler Plymouth Sales, Inc. did not answer this suit, and were subsequently dismissed from same. It is apparent from the statements made by counsel for Chrysler Corporation that the. sales agency went out of business.

        . “Redhibition is the avoidance of a sale on account of some vice or defect in the thing sold, which renders it either absolutely useless, or its use so inconvenient and imperfect, that it must be supposed that the buyer would not have purchased it, had he known of the vice.” L.C. C.Art. 2520.


author: WILLIAMS, Judge.

text:
    SOUTH CENTRAL BELL TELEPHONE COMPANY v. Herbert SUMRALL, et al.
    No. 12889.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 11, 1982.
    Rehearing Denied June 18, 1982.
    Stephen D. Ridley, Steven Hymowitz, Christopher P. Charlton, McCalla, Thompson, Pyburn & Ridley, New Orleans, for defendant-appellant.
    Thomas L. Giraud, Robert M. Loev, Gi-raud, Cusimano, Verderame & Loev, New Orleans, for defendants-appellees.
    Before BARRY, WARD and WILLIAMS, JJ.
   WILLIAMS, Judge.

This is an appeal from a judgment by the trial court upholding a decision by the Louisiana Board of Review that awarded unemployment benefits to a discharged employee of the plaintiff South Central Bell Telephone Co. [“Bell”].

John E. Boe was employed by Bell as an assistant cable splicer. When he was hired by Bell he was required to read a booklet entitled “A Professional Responsibility.” This booklet outlined, among other things, Bell’s policy toward employees who “engage in the illegal use, possession or sale of drugs, whether occurring on Company time or during off-duty hours...” Violation of this Company policy subjects the employee to disciplinary action, and possible dismissal. After reading the booklet, Boe signed an acknowledgment that he had read and understood it. This acknowledgment also contained the following provision:

“I fully realize the necessity of protecting our company’s reputation; preserving the privacy of communications; safeguarding proprietary and classified national security information; properly handling company funds, property and records, guarding against espionage and sabotage; and adhering to the company’s drug policy.”

On May 31, 1979, Boe was arrested and charged with possession of cocaine, marijuana, and Diazepam (Valium) with intent to distribute. Bell conducted an investigation into the incident and subsequently discharged Boe on the ground of employment-related misconduct.

Boe applied for unemployment benefits but was denied them because of his discharge for employment-related misconduct. La.R.S. 23:1601(2). The Agency Adjudicator and Appeals Referee both concluded that Boe’s discharge properly was based on misconduct connected with employment. The Board of Review reversed this decision. The Board based its decision on the fact that the misconduct in question occurred while Boe was off-duty and not on company premises. This decision was appealed by Bell to the district court where it was upheld. Bell has now appealed to this court.

La.R.S. 23:1601(2) provides:

“If the administrator finds that he has been discharged by a base period or subsequent employer for misconduct connected with his employment [sic]. Such disqualification shall continue until such time as the claimant (a) can demonstrate that he has been paid wages for work subject to the Louisiana Employment Security Law or to the employment insurance laws of any other state or of the United States equivalent to at least ten times his weekly benefit amount subsequent to a claim for a compensable week for unemployment benefits under this Act and (b) has not left his last work under disqualifying circumstances. A compensable week is defined as a week for which benefits would otherwise be payable except for the disqualification imposed by this Paragraph or by the provisions of R.S. 23:1600(4). In addition, if the administrator finds that such misconduct has impaired the right, damaged or misappropriated the property of, or has damaged the reputation of a base period employer, then the wage credits earned by the individual with the employer shall be cancelled and no benefits shall be paid on the basis of wages paid to the individual by such employer.”

Boe does not contend that Bell was without authority to terminate his employment. He does claim that his misconduct was not related to employment, and he should be entitled to unemployment compensation.

The law in Louisiana is clear that there must be a relationship between the misconduct and the employment in order to deny a discharged employee unemployment benefits. E.g., Johnson v. Board of Comm’rs, 348 So.2d 1289, 1291 (La.App. 4th Cir. 1977).

Boe has argued that misconduct occurring off-duty and not on the employer’s premises is not a basis for denial of unemployment benefits unless the misconduct renders the discharged employee unable to perform his duties. Our attention has been directed specifically to the decisions in Grimble v. Brown, 247 La. 376, 171 So.2d 653 (1965) cert. den. 382 U.S. 861, 86 S.Ct. 123, 15 L.Ed.2d 99 and Jackson v. Doyal, 198 So.2d 469 (La.App. 2d Cir. 1967). These cases do involve discharged employees unable to perform their duties because of their off-duty misconduct. The cases do not hold, however, as Boe contends, that only off-duty misconduct rendering an employee unable to perform is sufficient for a denial of unemployment compensation.

In Johnson v. Board of Comm’rs, an offduty patrolman for the Port of New Orleans was discharged for carrying concealed weapons, which was in violation of Port rules. The patrolman was denied unemployment compensation on the ground that he “violated the regulations concerning his conduct to the detriment of his employer and its duty to the citizens of the state.” Id. at 1292.

The facts of the instant case are similar to those presented by Johnson v. Board of Comm’rs. The claimant was discharged for violation of a company policy. Although a worker for the telephone company may not necessarily be as sensitive a position as that of a patrolman, that worker nevertheless does work for a public utility and is charged with serving the public. The rule against drug possession and usage promulgated by Bell was reasonable in light of the duty with which a public utility is charged. We, therefore, find that the misconduct perpetrated by Boe was related to his employment. Boe should be denied any unemployment compensation pursuant to La.R.S. 23:1601(2).

For the foregoing reasons, the decision of the trial court is reversed.

REVERSED.


text:
    KELLER SUPPLY, INC. v. Jim HOWARD, et al.
    No. 12935.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 11, 1982.
    Leo W. Rousselle, Roccaforte & Rousselle, New Orleans, for defendants-appellants.
    Alan P. Dussouy, New Orleans, for plaintiff-appellee.

      Before BARRY, WARD and WILLIAMS, JJ.
   WILLIAMS, Judge.

This is an appeal from a judgment of the trial court finding defendants Jim Howard, d/b/a Tom Black & Associates and Francis J. Demarest, Recorder of Mortgages for Orleans Parish, liable to the plaintiff Keller Supply, Inc. [“Keller”], for $3,201.16.

Plaintiff Keller sold plumbing supplies to Jim Howard, who was doing business under the name of Tom Black & Associates, at two job sites under construction by First National Home Builders, Inc. [“First National”]. First National had recorded its building contract for the lots under construction in the Mortgage Office for Orleans Parish. Defendant Howard failed to pay for the plumbing supplies, and on February 5, 1979, Keller filed liens in the Orleans Parish Mortgage Office against the lots on which the construction was located. On August 21,1979, a suit on open account was filed in Civil District Court for Orleans Parish and a notice of the filing of the suit was filed in the Orleans Parish Mortgage Office on the same day. On March 19, 1980, the liens were cancelled by the Mortgage Office pursuant to a letter from the attorney for First National requesting the cancellation. Upon discovery of this cancellation, the plaintiff filed a supplemental petition joining Francis J. Demarest, Recorder of Mortgages for Orleans Parish as an additional defendant to this action.

At the time that this cause of action arose, La.R.S. 9:4801(b) provided:

“(b) The claim recorded as above set forth, shall preserve the privilege against the property for a period of one year from the date of its recordation and may be enforced by a civil action by any court of competent jurisdiction in the parish in which the land is situated and such cause of action shall prescribe within one year of the recordation of the claim in the mortgage records of the Office of Clerk of Court of Recorder of Mortgages. The effect of the recordation of the claim shall cease and the privilege preserved by this recordation shall preempt unless a notice of filing of suit (giving the name of the court, the title and number of the proceedings and date of filing, a description of the property and a reference to the recorded contract) on said claim is recorded within one year of the date of the recordation of the inscription of said claim. Such notice of filing suit shall preserve the privilege until the court in which the suit is filed shall order the cancellation of the inscription of the said claim until the claimant authorizes the Clerk of Court of Recorder of Mortgages to cancel the said inscriptions”.

After a trial on the merits, the district court found that Keller had preserved its liens against the property and held both Howard and the Recorder of Mortgages liable to Keller for $3,201.26. Defendant Demarest has appealed this decision.

Defendant Demarest argues that the notice of the pending lawsuit contained no reference to the liens filed on February 5, 1979, and because more than a year had elapsed since the filing of these liens, he cancelled them. To support his position, Demarest relies upon our decision in National Bank of Commerce v. Justice, 212 So.2d 711 (La.App. 4th Cir. 1968).

We find National Bank of Commerce to be inapplicable to the facts in the instant case. In National Bank of Commerce, a labor and materialmen’s lien and privilege was not filed timely and was filed after a default judgment had been taken. The default judgment did not recognize a lien and privilege. The court rejected the argument that a suit and lis pendens in which no mention of a lien or privilege was made satisfied the requirements of La.R.S. 9:4802. The facts of the case now before us present a totally different issue.

La.R.S. 9:4802(b) did not require that a direct reference be made to the lien in the notice of filing of suit. The only information required by the statute to be contained in the notice was: (1) the name of the court; (2) the title and number of the proceeding^); (3) the date of the filing; (4) a description of the property against which this notice is being filed; and (5) a reference to the recorded contract. The exhibits introduced at trial by plaintiff show that all of the requirements were met by the plaintiffs. To require that the notice of the suit include information about the lien recordation would be to add an additional statutory requirement.

Based on these reasons, the Recorder of Mortgages was in error in allowing the cancellation of the lien filed by the plaintiff, and, therefore, is liable to the plaintiff for the damages it suffered by such cancellation. The judgment of the trial court is affirmed.

AFFIRMED.

      . The plaintiff also sued First National because it had failed to furnish a bond for the lien on one of the lots and Travelers Indemnity Co. that had written the bond on the other lot. Demarest filed a Third Party Petition against First National and its attorney who had requested the cancellation of the liens. The trial judge dismissed these claims.

      . In 1981, this provision was superseded by a new enactment of this statute. We are bound, however, to follow the law that was applicable in the court below.


author: WARD, Judge.

text:
    Thomas WRIGHT v. Eloise O’NEAL and New Orleans Public Service Inc.
    No. 12934.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 11, 1982.
    Rehearing Denied June 18, 1982.

      Bradford R. Roberts, II, Roberts, Katz & Baudier, New Orleans, for plaintiff-appel-lee.
    Floyd F. Greene, New Orleans, for defendants-appellants.
    Before BARRY, WARD and WILLIAMS, JJ.
   WARD, Judge.

This is an action for personal injuries arising out of a traffic accident that occurred in the City of New Orleans. Thomas Wright, Jr., filed suit against New Orleans Public Service Inc. (NOPSI) and Eloise O’Neal (O’Neal) seeking to recover damages for injuries he received when a taxicab operated by Wright and a bus operated by O’Neal were involved in a collision. NOP-SI, the owner of the bus, and O’Neal, NOP-SI’s employee, answered Wright’s suit and denied liability for those injuries. There was a trial on the merits, and the trial judge rendered a judgment in favor of both defendants, NOPSI and O’Neal. One week after the judgment, Wright filed a motion for a new trial, the motion was granted, and the judgment in favor of defendants was vacated. In a second trial, two witnesses who had not been present for the first trial testified for Wright. The trial judge then rendered judgment in favor of Wright, awarding damages to him for his injuries. NOPSI now appeals from that judgment.

In this appeal, NOPSI contends that the trial judge erred (1) when he granted a new trial and (2) when he rendered the second judgment in favor of Wright.

As to the first contention, the new trial was granted because Wright had located two witnesses he had unsuccessfully tried to produce for the first trial. In preparation for the first trial, Wright had subpoenaed these two witnesses at the address given by them to the New Orleans police officers investigating the accident, but they did not receive these subpoenas because one had moved and the other was in the hospital. NOPSI argues that Wright, who had more than two years to prepare for trial, could have produced the witnesses for the first trial if he had used due diligence and that it was error for the trial judge to grant a new trial because Wright did not prove he had made a diligent effort. On the other hand, Wright contends that the granting of a new trial was within the sound discretion of the trial judge.

In motions for a new trial, the Code of Civil Procedure distinguishes two situations. In one, the trial judge is required to grant a new trial. It is error if he does not “where the party has discovered, since the trial, evidence important to the cause, which he could not, with due diligence, have obtained before or during the trial.” LSA-C.C.P. Art. 1972. In the other, granting or denying a new trial is largely within the sound discretion of the trial judge, and “a new trial may be granted in any case if there is good ground therefor.” LSA-C.C.P. Art. 1973. Therefore, when there has been a diligent effort to produce the newly discovered witnesses, it is error not to grant the motion. However, even if a diligent effort is not shown, it nevertheless remains within the trial judge’s sound discretion to grant the motion if he believes there are good grounds to support it. Of course, that discretion may be abused, and its exercise is subject to review, but unless there is a clear abuse, there is no error. Simas v. Hicks, 381 So.2d 949 (La.App. 3rd Cir. 1980); Strobel v. Schlegel, 145 So.2d 664 (La.App. 4th Cir. 1962). Hence the question here is: did the trial judge abuse his discretion by granting the motion without good grounds? Under the circumstances of this case, our answer is that there was no abuse of discretion.

To consider NOPSI’s second contention, we must review the testimony given in both trials since the new trial was granted for the limited purpose of permitting Wright’s new-found witnesses to supplement the testimony of the first trial. NOPSI here contends that even if the two new witnesses’ testimony is admissible, when it is considered with the testimony given in the first trial, the trial judge’s original decision was correct: NOPSI is not liable because Wright was negligent.

The testimony given during both trials indicates that at five o’clock on the afternoon of October 30,1978, Wright picked up two passengers near the intersection of North Rampart and Canal Streets. Although Wright testified that he stopped only to pick up the passengers, he admitted he brought the cab to a stop in a “no parking” zone on North Rampart Street, which was marked off with yellow lines, behind an area designated as a taxi zone. Although it was an important question of fact, conflicting testimony was given as to whether the taxicab zone was occupied by other cabs. Nevertheless, Wright testified that after he had stopped, he had shifted to the parking gear and the passengers had entered his cab when the NOPSI bus, in the process of making a right-hand turn from Canal and onto Rampart, hit the rear of his cab. Although this part of Wright’s testimony was corroborated by the testimony of the two passengers who were absent during the first trial, they contradicted other more important parts of his testimony. They testified that the cab was parked, not merely stopped, in the “no parking” zone, within fifteen feet of the corner and that Wright was standing outside the cab waiting for a fare when they first saw him. Whichever testimony is believed, that of Wright or of his witnesses, it established that Wright had stopped or parked in the prohibited zone within fifteen feet of the corner of North Rampart and Canal.

For the defense, the bus driver, Eloise O’Neal, testified that while she was making a right-hand turn, the taxicab backed up and hit the bus in the right rear just behind the door. O’Neal’s testimony was corroborated by a passenger on the bus.

In his first judgment, the trial court noted that Wright had stopped his cab in a “no parking” zone and “placed his taxicab in a place .that it should not have been.” He also found that Wright had not proven by a preponderance of the evidence that O’Neal was negligent because “(i)f there were no cabs at the stand, it is reasonable to assume that nothing prevented plaintiff from continuing a few feet ahead so as to avoid the ‘no parking’ area. If there were taxis occupying that space the defendant (bus) driver’s version of how the accident occurred becomes both logical and believable.” In other words, Wright could not recover because he did not prove the cab was hit by the bus and, more importantly, Wright could not recover because he was guilty of contributory negligence.

In his second judgment, rendered after the new trial, the trial judge held that because of the testimony of the new-found witnesses, Wright had carried the burden of proof to show that O’Neal was negligent. He found those witnesses proved that “the taxicab did not move prior to the accident,” and therefore, the bus driven by O’Neal must have struck the cab. He rendered his second judgment in favor of Wright and against NOPSI and O’Neal.

However, although the new testimony proved O’Neal was negligent, it did not touch upon the trial judge’s finding that Wright was contributorily negligent. It not only failed to negate his original finding of Wright’s negligence, it reinforced it because it corroborated the evidence that Wright had parked in a “no parking” zone and added that he was out of his cab when the passengers first saw him.

We hold that the original finding was correct: Wright was negligent, and his negligence was a cause of the accident. We base our conclusion that Wright was negligent on the trial judge’s original finding of fact: Wright had parked in a “no parking” zone which was clearly a violation of several city ordinances. One of these ordinances prohibits stopping or parking a vehicle within twenty feet of a crosswalk at an intersection; another prohibits parking a vehicle in a “no parking” zone; and another specifically prohibits stopping or parking a vehicle on Rampart Street, at the place of the accident, during the time when the accident occurred.

We believe violations of city ordinances are analogous to violations of statute, and “(w)hile statutory violations are not in and of themselves definitive of civil liability, they may be guidelines for the court in determining standards of negligence by which civil liability is determined.” Smolinski v. Taulli, 276 So.2d 286 (La.1978).

So, although violation of an ordinance is not conclusive evidence of negligence, it must be considered. Before determining that the violation is negligence, it must be proven that “... the prohibition in the statute is designed to protect from the harm or damage which ensues from its violation .... whether (the violation) was a substantial factor without which the accident would not have occurred — that is, whether it had some direct relationship to the accident.” Laird v. Travelers Insurance Company, 263 La. 199, 267 So.2d 714 (1972).

We have concluded that protection from this kind of accident was contemplated by an ordinance establishing a “no parking” zone. The “no parking” zone at an intersection is obviously to provide for a free flow of traffic and to give turning automobiles, trucks and buses room to complete a turn. This is all the more true at an intersection in a downtown area where there is a heavy flow of vehicular and pedestrian traffic. Additionally, zones are designated for taxicabs to provide a place for them to park and wait for passengers and to give boarding passengers the opportunity to enter and leave cabs safely.

A party claiming contributory negligence has the burden of proving that the conduct on the part of the plaintiff falls below the standard of conduct of a reasonable man under the circumstances. Smolin-ski, supra. We believe that NOPSI has met this burden by proving that Wright parked in a “no parking” zone, within fifteen feet of an intersection, creating a foreseeable hazard for turning vehicles and a hazard for his boarding passengers.

In summary, Wright created a hazard that contributed to the cause of the accident. It was foreseeable, and Wright was guilty of contributory negligence. His contributory negligence bars his recovery for his injuries. Therefore, we reverse the judgment in favor of Wright and enter judgment in favor of NOPSI. Costs of the trial and this appeal are to be paid by plaintiff, Thomas Wright, Jr.

      . Code of the City of New Orleans, Section 38-239; Section 38-281; Section 38-282.


author: PONDER, Judge.

text:
    STATE of Louisiana In the Interest of Jessica JENKINS.
    No. 82 CJ 0110.
    Court of Appeal of Louisiana, First Circuit.
    May 17, 1982.
    Gordon W. Matheny, Asst. Dist. Atty., Amite, for plaintiff.
    Jonathan R. Schmidt, Hammond, for defendant-appellant.
    Before ELLIS, PONDER and SAVOIE, JJ.
   PONDER, Judge.

This appeal was scheduled for submission on May 12,1982, and all attorneys of record and appellant were notified. Appellant was not present or represented at that time, nor had any brief or motion for continuance been filed on his behalf. On authority of Rule VII, Section 5(b), this court, ex proprio motu, considers said appeal as abandoned; therefore, it is ordered that this appeal be dismissed with prejudice.

APPEAL DISMISSED.


author: WALKER, Justice, for the Court:

text:
    Pinkie RAND, Ethel Mae Battle and Ross Coleman v. Neola MOORE, Administratrix of the Estate of Herbert Moore.
    No. 52874.
    Supreme Court of Mississippi.
    Dec. 16, 1981.
    Rehearing Denied Feb. 3, 1982.
    Cothren & Pittman, Wayne E. Ferrell, Jr., Jackson, for appellants.
    Montgomery, Varnado, Garrard & Trotter, H. R. Varnado, Jr., Belzoni, for appel-lee.

      Before SMITH, WALKER and BOWLING, JJ.
   WALKER, Justice, for the Court:

This is an appeal from the Chancery Court of Humphreys County wherein the chancellor found that two certificates of deposit issued by the Citizens Bank & Trust Company of Belzoni were the property of Herbert Moore at the time of his death and should be included among the assets of his estate.

Peeling aggrieved by the court’s ruling and decree, the appellants appeal.

The two certificates of deposit were issued by the Citizens Bank & Trust Company of Belzoni, Mississippi. Certificate of deposit No. 1192 was issued by the Bank on February 1,1970, in the principal amount of $1,178.39 payable to Herbert Moore P. O. D. Pinkie Rand — Ethel Mae Battle. The chancellor found that this certificate was in the possession of Herbert Moore at the time of his death and was an asset of his estate.

Pinkie Rand and Ethel Mae Battle did not receive any present interest in the certificate when it was issued. During the lifetime of Herbert Moore, he was the only person who could negotiate the certificate. This, he did not do. In their pleadings, the heirs of Pinkie Rand and Ethel Mae Battle contend that the abbreviation P. O. D. means “Payable on Death,” therefore, it is patent “P. O. D. Pinkie Rand — Ethel Mae Battle” was an attempt by Moore to make a testamentary disposition of the certificate upon his death which failed because, among other things, it was neither in the handwriting of Herbert Moore nor signed by him and did not otherwise conform to Mississippi Code Annotated section 91-5-1 (Supp. 1981) on the execution of wills. Matter of Collier, 381 So.2d 1338 (Miss.1980); Buchanan v. Buchanan, 236 Miss. 751, 112 So.2d 224 (1959).

The Bank issued certificate of deposit No. 1189 on October 1, 1970, in the amount of $6,618.00 payable to Herbert Moore. During Herbert Moore’s lifetime he endorsed his name on the back of the certificate and physically delivered it to Ross Coleman. Coleman was allowed to testify, over objection of the appellee, that he and Herbert Moore were cousins and that Moore had visited him in 1972 and had given him the certificate of deposit No. 1189 with his endorsement on the back thereof. He also testified that Herbert Moore had given him a horse and a truck on an earlier occasion when he left Belzoni. He also testified that Moore had never again mentioned the certificate to him. The validity of Moore’s signature on the instrument was not challenged by appellee.

The trial court properly overruled the appellee’s objection to the testimony of Ross Coleman, which objection was made on the grounds that it was in violation of the so-called dead man statute, Mississippi Code Annotated section 13-1-7 (1972). Coleman’s testimony was competent because the appellee propounded interrogatories to Coleman with reference to the gift of certificate No. 1189 and by so doing made Coleman a witness and thereby waived any privilege that the estate might have had under the dead man statute. The appellee had the right to waive the privilege on behalf of the estate since her suit was seeking to recover assets for the benefit of the estate. Lipson v. Lipson, 183 So.2d 900, 906 (Miss.1966). Taking the deposition of, or serving interrogatories upon, a person who would otherwise be incompetent as a witness under the dead man statute is the equivalent of calling such person as a witness and is a waiver of the witness’ incompetency. Lipson, supra; 81 Am.Jur.2d Witnesses § 407 (1976); citing Fant v. Fant, 173 Miss. 472, 162 So. 159 (1935).

The certificate claimed by Ross Coleman, No. 1189, was made payable to Herbert Moore and was endorsed in blank on the back by Herbert Moore. The certificate admittedly did not contain the words payable to the “order” of Herbert Moore nor was it payable to “Herbert Moore or bearer.” Therefore, it is contended by the ap-pellee that absent the so-called magic language “order” or “bearer” the certificate of deposit was not negotiable in character and could not be transferred simply by the endorsement of Herbert Moore on the back thereof.

Except for the language “payable to order” or “payable to bearer,” certificate No. 1189 contained all of the necessary attributes of a negotiable instrument as required by Mississippi Code Annotated section 75-3-104 (1981). It was signed by the maker, contained an unconditional promise to pay a sum certain in money, and was payable at a definite time. However, although the “order” or “bearer” language did not appear on the face of the instrument, Mississippi Code Annotated section 75-3-805 (1981) allows transfer of this type instrument by proper endorsement. That section provides:

Instruments not payable to order or to bearer.

This chapter applies to any instrument whose terms do not preclude transfer and which is otherwise negotiable within this chapter but which is not payable to order or bearer, except that there can be no holder in due course of such an instrument.

When an instrument fails of negotiability because it does not contain words of negotiability, some courts have called it a mercantile specialty and permitted the rules of negotiable instrument law to govern it, except that no holder could be a holder in due course. • Other courts have held such an instrument to be only a simple contract, falling outside the purview of the old Uniform Negotiable Instrument Act. However, section 3-805 of the Uniform Commercial Code, codified in this State as section 75-3-805, resolves this conflict of authority by adopting the first-stated view. Under section 75-3-805, an instrument, nonnegotiable only because it fails to contain words of negotiability, may be transferred by endorsement and without words of assignment. The liability of the endorsement is governed by the U.C.C. and not by the law of assignments. As stated in the official comment to section 3-805 of the Uniform Commercial Code, it is said:

In short, the “non-negotiable instrument” is treated as a negotiable instrument, so far as its form permits. Since it lacks words of negotiability there can be no holder in due course of such an instrument, and any provision of any section of this article peculiar to a holder in due course cannot apply to it. With this exception, such instruments are covered by all sections of this Article. (Uniform Commercial Code, Official Text with comments (1972)).

See also W. Hawkland, A Transactional Guide to The Uniform Commercial Code, pp. 474-75 (1964); R. Anderson, Uniform Commercial Code, p. 154 (2nd ed. 1971).

Herbert Moore endorsed certificate No. 1189 in blank on the back thereof and physically delivered the same to Ross Coleman.

Absent proof of the contrary, this creates a presumption of a valid and intentional delivery. Miss.Code Ann. § 75-3-201, § 75-3-805 (1981). This presumption was satisfactory proof of an inter vivos gift to Ross Coleman and was not overcome by the evidence. Evidence that the periodic interest payments accrued on certificate No. 1189 continued to be deposited into separate savings accounts belonging to Moore was not sufficient to overcome this presumption.

We are of the further opinion and so hold that, as between the litigants in this case, any interest accruing on certificate No. 1189 from and after Herbert Moore’s death is the property of Ross Coleman.

There is no merit in the appellants’ contention that the separate savings accounts belonged to them and not the estate.

We are also of the opinion that the chancellor did not abuse his discretion in allowing the original certificate, with the endorsement of Herbert Moore thereon, to be admitted into evidence.

There is no merit in the contention by Ethel Mae Battle and the heirs of Pinkie Rand that Herbert Moore made an inter vivos gift of/or transfer of certificate of deposit No. 1192 to Ethel Mae Battle and Pinkie Rand during his lifetime.

For the foregoing reasons, the decree of the chancery court in holding that certificate of deposit No. 1192 was a part of the estate of Herbert Moore is affirmed; that part of the decree holding that certificate No. 1189 was part of the estate of Herbert Moore is reversed, and such certificate is hereby held and decreed to be the property of Ross Coleman, including all interest accruing after his death, and, that part of the decree holding that the separate savings accounts in the Citizens Bank & Trust Company of Belzoni was a part of the Estate of Herbert Moore is affirmed.

AFFIRMED IN PART, REVERSED IN PART AND RENDERED.'

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

      . § 75-3-104. (1) Any writing to be a negotiable instrument within this chapter must (a) be signed by the maker or drawer; and (b) contain an unconditional promise or order to pay a sum certain in money and no other promise, order, obligation or power given by the maker or drawer except as authorized by this chapter; and (c) be payable on demand or at a definite time; and (d) be payable to order or to bearer. (2) A writing which complies with the requirements of this section is (a) a “draft” (“bill of exchange”) if it is an order; (b) a “check” if it is a draft drawn on a bank and payable on demand; (c) a “certificate of deposit” if it is an acknowledgment by a bank of receipt of money with an engagement to repay it; (d) a “note” if it is a promise other than a certificate of deposit. (3) As used in other chapters of this code, and as the context may require, the terms “draft,” “check,” “certificate of deposit” and “note” may refer to instruments which are not negotiable within this chapter as well as to instruments which are so negotiable.


author: FAULKNER, Justice.

text:
    James R. OWEN, as Guardian ad Litem for Abby Gail English and Faye Denise English, minors, and Edna Faye English (Harridge) v. Ora Mae MILLER.
    80-277.
    Supreme Court of Alabama.
    Dec. 4, 1981.
    Rehearing Denied May 28, 1982.
    John A. Courtney, Mobile, for appellant Edna Faye English.
    James R. Owen of Owen & Ball, Bay Minette, for appellants Abby Gail English and Faye Denise English.
    Everette A. Price, Jr., Brewton, for ap-pellee.
   FAULKNER, Justice.

This is an appeal of a trial court decision awarding the funds of two savings accounts to Ora Mae Miller. In an earlier appeal, this Court stated the facts as follows:

This is a dispute over the ownership of two savings accounts deposited in the Bank of Atmore.
Ora Mae Miller, plaintiff below, claimed that the money in the two accounts was given to her by her brother, Leroy English, “for investment purposes.” Edna Faye English, former wife of Leroy, in effect, claimed that the funds originally belonged to Leroy and that they were ordered to be turned over to her, her former husband, and two children born of their marriage, by the Circuit Court of Mobile County in their divorce action. The bank was made a party; it answered that it did not know who owned the funds.
The subject accounts were styled:
“110-1633-R. English or Ora Mae Miller as Trustee for A. G. English 110-1625-R. English or Ora Mae Miller as Trustee for F. D. English”
It is agreed that R. English is Leroy English and that A. G. English and F. D. English are the children of Leroy and Edna Faye English, who were divorced in March of 1977, in Mobile County.

English v. Miller, 370 So.2d 968, 969 (Ala.1979).

The Court remanded the cause of action because the trial court failed to appoint a guardian ad litem to protect the interests of the minor children. In the divorce proceedings before the Circuit Court of Mobile County, Ora Mae Miller testified concerning the ownership of various accounts listed in her name and her brother’s name. The court ordered that the funds in several accounts, including the accounts which are the subject of this action, be turned over to Edna Faye English and her children. Ora Mae Miller filed a motion with the court to release the funds held in a Pensacola, Florida, bank on the grounds that she owned the funds. The court released the funds. The appellants argue that the divorce proceedings between Leroy and Edna Faye English awarding the accounts to Mrs. English and the children are binding on Ora Mae Miller in this action. Furthermore, the appellants contend that Code 1975, §§ 5-1-17 and 5-16-47 require this Court to award the savings accounts to the children of Leroy and Edna Faye English. Because the issue of the preclusive effect of the earlier judgment is dispositive, we need not discuss whether these Code sections are applicable.

The doctrine of “res judicata” is intended to provide consistency and continuity in the law. The policy behind the doctrine of res judicata is that “there be an end to litigation.” Reed v. Allen, 286 U.S. 191, 198-99, 52 S.Ct. 532, 533, 76 L.Ed. 1054 (1932). Modern commentators indicate that a great deal of confusion surrounds the doctrine of res judicata, partially because of imprecise terminology used to describe various issues.

The terminology adopted by a recent commentator, paraphrasing the Restatement (Second) of Judgments (Tent. Draft Nos. 1-4 (1973-77)), is as follows:

1. Res Judicata. This term is used only in a general sense to indicate all the preclusive effects of former judgments, whether claim or issue preclusive.
2. Claim Preclusion [or under older terminology, res judicata]. A valid, final judgment on the merits of a claim extinguishes the claim. If plaintiff won, the claim is merged in the judgment; if defendant won, plaintiff is barred from subsequent litigation. Plaintiff is prevented from relitigating any matter that could have been litigated in the prior action, regardless of whether the matter was actually presented. Furthermore, if plaintiff wins, defendant is barred from raising any defense that could have been litigated in the former action, regardless of whether it was actually litigated, if the matter constitutes a ground for an action against plaintiff.
3. Issue Preclusion [or collateral es-toppel], An issue of fact or law that is actually litigated and determined and that is necessary to a valid, final judgment on the merits may not be relitigated in a subsequent action. If claim preclusion does not prevent relitigation of an action, even though a judgment has been rendered, the preclusive effect on litigated issues is known as direct estoppel. If the second action is on a different claim, the effect is designated collateral estop-pel.

In the case at bar, Edna Faye English and her children assert that the issue of ownership of the savings accounts has been adjudicated in an earlier action and may not be relitigated. Thus, they say, the doctrine of issue preclusion applies. Issue preclusion requires three elements:

(1) the issue to be precluded must have been the same in the prior suit; (2) the issue must have been necessary to the prior judgment; (3) the issue must have been actually litigated and determined

Id. See Russell v. Russell, (Ala.1981) 404 So.2d 662; Wheeler v. First Alabama Bank, 364 So.2d 1190 (Ala.1978); Parker v. Mauldin, 353 So.2d 1375 (Ala.1977); Moody v. Moody, 339 So.2d 1030 (Ala.Civ.App.), cert. denied, 339 So.2d 1035 (Ala.1976).

Applying these criteria to the facts in this case, it is clear that issue preclusion works to prohibit relitigation of the issue of ownership of the accounts. The issue litigated in the prior action was the ownership of various bank accounts. Second, the issue decided was necessary to the prior judgment. The court could not award the property of Ora Mae Miller to Edna Faye and her children in a divorce proceeding between Leroy and Edna Faye. In fact, another account, in a Pensacola bank, was found to be owned by Ora Mae Miller and exempted from the court’s order in the prior proceeding. Third, the issue of ownership was actually litigated in the pri- or proceeding. The court heard testimony from all of the parties, including Ora Mae Miller, and rendered a judgment on that basis. Finally, the validity of the judgment in the prior proceeding is not questioned.

Since the four tests of issue preclusion are met, the question remaining is whether Ora Mae Miller, who was not a party in the prior proceeding, can be bound by the earlier judgment. A non-party who has an interest sufficiently close to the matter litigated and who had an adequate opportunity to litigate the issue in the prior proceeding, may be bound by the earlier judgment. Hudson v. Wright, 164 Ala. 298, 51 So. 389 (1909); Moody v. Moody, 339 So.2d 1030 (Ala.Civ.App.), cert. denied, 339 So.2d 1035 (Ala.1976). See Parklane Hosiery Co. v. Shore, 439 U.S. 322, 99 S.Ct. 645, 58 L.Ed.2d 552 (1978); Blonder-Tongue Laboratories, Inc. v. University of Illinois Foundation, 402 U.S. 313, 91 S.Ct. 1434, 28 L.Ed.2d 788 (1971). This Court held in Mitchell v. Austin, 266 Ala. 128, 94 So.2d 391 (1957), that persons with mutual or successive interests in the same property may be bound by the results of a prior adjudication. Ora Mae Miller was present at the earlier proceedings and actually testified concerning the ownership of several bank accounts, including the two accounts at issue in this case. Mrs. Miller objected to the court’s order concerning an account in a Florida bank, claiming that the money in the account was hers and could not be frozen. The court promptly restored the ownership of the account to Mrs. Miller. Mrs. Miller claims she also attempted to gain possession of the accounts contested in the present action, but the court refused. Clearly, Ora Mae Miller had the opportunity to contest the ownership of these accounts and either chose not to contest or suffered a ruling adverse to her interests. The general doctrine of res judicata serves the functions of protecting litigants from the burden of re-litigating the same issue and of promoting judicial economy. Parklane Hosiery Co. v. Shore, 439 U.S. 322, 99 S.Ct. 645, 58 L.Ed.2d 552 (1978). Edna Faye English and her children should be protected from relitigat-ing the issue of the ownership of these bank accounts. All the requirements for the application of res judicata exist in the present case. If Ora Mae Miller wanted to claim ownership of these accounts, she should have made the claim along with her claim to the funds in the Florida bank. If Mrs. Miller, as she claims, contested the ownership of these accounts, she is bound by that determination.

For the foregoing reason, the trial court erred in awarding the savings account in Atmore to Ora Mae Miller. The judgment of the Circuit Court of Mobile County is binding. Accordingly, the judgment of the trial court is reversed, and this cause is remanded to the trial court with directions to enter a judgment not inconsistent with this opinion.

REVERSED AND REMANDED WITH DIRECTIONS.

EMBRY and ADAMS, JJ., concur.

TORBERT, C. J., and ALMON, J., concur in the result.

      . “Issue Preclusion in Alabama,” 32 Ala.L.Rev. 500, 503-504 (1981). See A. Vestal, “Res Judi-cata/Preclusion” (1969); “Developments in the Law-Res Judicata,” 65 Harv.L.Rev. 818 (1952).


text:
    Joel SILVERMAN and Carolyn Silverman v. CHARMAC, INC.
    80-426.
    Supreme Court of Alabama.
    March 2, 1982.
    Rehearing Denied May 28, 1982.

      Philip H. Butler and Richard C. Belser of Robison & Belser, Montgomery, for appellants.
    John R. Matthews, Jr. of Ball, Ball, Duke & Matthews, Montgomery, for appellee.
   FAULKNER, Justice.

This is an appeal from a judgment ordering the appellants, Joel and Carolyn Silver-man, to reimburse Charmac, Inc. a pro rata share of the cost of developing property in Woodmere Estates Subdivision, Montgomery County, Alabama. We affirm.

The able trial judge, Joseph D. Phelps, stated the facts as follows in his order:

“Charmac is an Alabama corporation which was organized in 1973 by principals and key employees of Ballard Realty Company, including Mr. Silverman, for the purpose of developing Woodmere.

“Charmac acquired the property comprising Woodmere in March, 1973. At the time of the acquisition, Charmac and Mr. Silver-man had entered into a verbal agreement whereby Mr. Silverman would acquire a house and ten acres of land in Woodmere for $64,000, would sell back to Charmac approximately four acres at $2,500 per acre, and would pay his pro rata share of the development costs, when the area in which his property was located was developed.

“On June 20, 1973, Charmac and Mr. Sil-verman entered into a written agreement stating:

‘For and in consideration of providing $64,600 (Sixty Four Thousand Six Hundred and No/100 Dollars) in front and money to CHARMAC, INC., the Silver-mans purchased from CHARMAC, INC., a house and 10 acres at cost.
‘It is the intent of the Silvermans to retain approximately 6 acres of this tract and sell the remaining 4 acres more or less back to CHARMAC, INC....
‘The Silvermans intend to retain the house and the following property: Block B, Lots 4, 5, 6, 7, 8, 9,10, 21, 22, 23, 24, 25 and 26 being 6 acres more or less according to the Lotting Plan as prepared by Goodwyn Engineering Company, dated May 14, 1983.
‘The Silvermans agree to pay their pro rata share of development costs on a per lot basis on the lots described above. Payment shall be due and payable when that particular construction cost making these lots saleable is due and payable to the contractor.’ ”

“These ten acres as conveyed by Charmac to the Silvermans do not include all of the lots which, according to the agreement, the Silvermans were to retain after reconvey-ing the four acres more or less. Attachment A [omitted from this opinion], which superimposes the ten acres conveyed to the Silvermans on the lotting plan referred to in the agreement, shows that portions of Lots 9 and 21 and all of Lot 10, to be retained by the Silvermans, had not been deeded to them.

“On April 9, 1974, the Silvermans conveyed 3.67 acres on the west side of the 10 acre tract to Charmac for $2,500 per acre.

“Charmac and Mr. Silverman originally planned to develop the Silvermans’ property and the property adjacent to it as 100 foot lots. Their efforts to market 100 foot lots, however, were unsuccessful.

“In 1976, an independent consultant employed to make a market survey for Wood-mere recommended that the property be rezoned for 75 foot lots. Charmac and Mr. Silverman agreed with the recommendation and had the property rezoned for 75 foot lots. The property was developed under the new plan as Plat 9B ....

“Under the new development plan, the Silvermans’ property was to front on two streets — Woodmere Boulevard and Forest Grove Drive. Mr. Silverman was given the option of constructing or omitting Forest Grove Drive when Plat 9B was developed. Mr. Silverman chose to develop.

“On February 20, 1978, Charmac sold the Silvermans 0.27181 acres adjacent to the south boundary of their property for $2,500 per acre in order to give them complete ownership of two lots in the southwest portion of their property.

“In July, 1978, Charmac, on behalf of itself and Mr. Silverman, contracted with Blake and Vice, Inc. for the construction of streets, sewers and drains necessary for the development of Woodmere. The work was begun in August, 1978 and was completed in January, 1980. Charmac paid Blake and Vice, Inc. $632,411.80 for the work done in the subdivision and also paid Goodwyn and Mills $56,917.06 for engineering work in the subdivision.

“On February 12,1980, Charmac requested the Defendants to pay a share of the development costs.

“On March 7, 1980, Charmac paid Alabama Power Company $5,277.22 for the installation of electrical service for the lots comprising Woodmere.

“The Defendants initially refused to pay a pro rata share of any development costs.

“Charmac instituted this action seeking a judgment against the Defendants for a pro rata share of the development costs. Subsequently, Mr. Silverman conceded that he should pay a share of the development costs of Forest Grove Drive and did not contest the amount of $31,387.01 claimed by Char-mac for such development.

“The remaining question is whether Charmac is entitled to a share of the development cost of Woodmere Boulevard, adjacent to the Silvermans’ property.”

It must first be pointed out that the trial judge heard the evidence ore tenus. In a case tried ore tenus, there is a presumption of correctness and the trial court’s findings will not be disturbed unless they are palpably wrong, without supporting evidence or manifestly unjust. Gertz v. Allen, 376 So.2d 695 (Ala.1979); Sudduth v. Sudduth, 366 So.2d 1102 (Ala.1979). The trial court found that the Silvermans received essentially what they bargained for under the contract. The changes in the development plan did not substantially alter the performance of the Silvermans. Furthermore, the trial court found that the Silver-mans agreed to the changes in the development plan.

The essence of the appellants’ contentions is that the development of the property in accordance with the lotting plan of May 14, 1973 excused their duty to perform under the contract. The Silvermans contend their performance is excused for one of two reasons. First, the appellants allege Charmac insisted on performance substantially different from that contained in the original contract, and thus the appellants’ performance is excused. Second, the Silvermans claim that abandonment of the original development plan excuses their duty by impossibility of performance.

Impossibility, or under Restatement (Second) of Contracts, § 261, terminology, “impracticability,” occurs when “a party’s performance is made impracticable without his fault by the occurrence of an event the non-occurrence of which was a basic assumption on which the contract was made.” If performance is impossible or impracticable a promisee’s “duty to render performance is discharged, unless language or the circumstances indicate to the contrary.” Id.

Nevertheless, this Court has not recognized the defense of impossibility or impracticability. “Where one by his contract undertakes an obligation which is absolute, he is required to perform within the terms of the contract or answer in damages, despite an act of God, unexpected difficulty, or hardship, because these contingencies could have been provided against by his contract.” Alpine Construction Co. v. Water Works Board of the City of Birmingham, 377 So.2d 954 (Ala.1979); Poughkeepsie Savings Bank v. Highland Terrace Apartments, 352 So.2d 1108 (Ala.1977); contra, Jewell v. Jackson & Whitsitt Cotton Co., 294 Ala. 112, 313 So.2d 157 (1975). Although the rule may have its exceptions, they are not applicable in the present case. See Code 1975, § 7-2-615; Poughkeepsie Savings Bank v. Highland Terrace Apartments, 352 So.2d 1108 (Ala.1977). Even if this Court were to recognize such a defense, the Silvermans would not be excused from their duty to perform. The Silvermans introduced no evidence showing that the changed plan prevented their performance. They do not contend that the new plan resulted in higher development costs or reduced the value of their property. In sum, the Silvermans show no hardship which would prevent their performance of the contract.

The Silvermans also assert that by insisting on a “substantially different” lot-ting plan, in essence, Charmac breached the contract, thus excusing the Silvermans’ performance. See Denver-Albuquerque Motor Transport, Inc. v. Green, 57 Ala.App. 709, 331 So.2d 719 (1976). Whether a party has substantially performed a promise under a contract is a question of fact. Bruner v. Hines, 295 Ala. 111, 324 So.2d 265 (1975). The trial court found that Charmac substantially performed its obligations and thus the Silvermans received substantially what they bargained for. The appellants bargained to retain “6 acres, more or less” of the ten acres they originally purchased. The Silvermans now have approximately six acres of developed land. The Silver-mans introduced no evidence to show that the cost of developing under the new plan was greater than the cost of developing under the original plan. The Silvermans do not contend that the value of their property has been reduced by the new development plan.

The only changes alleged by the appellants are the reduction in lot sizes, the addition of Forest Grove Drive, and a change in the frontage of some of the lots. The trial court found that the Silvermans, at least impliedly, agreed to these changes. A written contract may be modified by a subsequent oral agreement. Winegardner v. Burns, 361 So.2d 1054 (Ala.1978). Furthermore, a party’s waiver of contractual provisions may be implied from the acts and circumstances surrounding the performance of the contract. Industrial Machinery, Inc. v. Creative Displays, 344 So.2d 743 (Ala.1977).

There was ample evidence at the trial to support the judgment.of the trial judge. The facts indicate that at the very least, the Silvermans waived the right to object to a new development plan. There was testimony at trial, denied by Mr. Silverman, that he urged his fellow stockholders to adopt the new plan. In 1976, the parties employed an analyst and a land planner to study the subdivision. The planner recommended the change in the lot sizes. Silver-man was present at the meetings discussing these changes and failed to object. It was not until Silverman left the parties’ common employer, and after the revised plan was accepted and the land rezoned, that Silverman first refused to pay construction costs. Under these circumstances, it is not erroneous to hold that the Silvermans must contribute their agreed upon pro rata share of the development costs.

The judgment of the trial court is due to be affirmed.

AFFIRMED.

TORBERT, C. J., and SHORES, EMBRY and ADAMS, JJ., concur.