author: KLIEBERT, Judge.

text:
    Roger A. FRANCOIS v. The MUTUAL LIFE INSURANCE COMPANY OF NEW YORK.
    No. 12057.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 13, 1981.

      Gauthier & Murphy, T. Peter Breslin, Kenner, for plaintiff-appellee.
    Jones, Walker, Waechter, Poitevent, Carrere & Denegre, Raymond J. Salassi, Jr., Edward H. Bergin, New Orleans, for defendant-appellant.
    Before BOUTALL, CHEHARDY and KLIEBERT, JJ.
   KLIEBERT, Judge.

In July, 1976, the defendant, The Mutual Life Insurance Company of New York (hereafter MONY), issued to plaintiff, Ro-gert A. Francois (hereafter Francois), a disability income policy. In August, 1976, defendant injured his back while installing a tile floor. The injuries resulted in hospitalization and excision of herniated discs at the L4,5 and L5-S1 levels. He also had a herniated disc at L3,4. The medical evidence indicated it was better not to excise this disc because it might result in nerve root damage. MONY paid disability benefits under the policy from August, 1976 until August, 1978, at which time MONY contended Francois was no longer disabled within the meaning of the contract of insurance and discontinued payments.

The plaintiff brought this action to recover disability benefits and a return of premiums paid (under a waiver of premium clause contained in the policy). Plaintiff also prayed for penalties and attorney fees. The trial court rendered judgment in favor of plaintiff for $1,000.00 per month from September 12, 1978 and continuing through the period of disability, with judicial interest thereon from the date payment was due until paid and for $1,012.00 (being the two premium payments made by the plaintiff during his disability). MONY appealed, contending the trial court was in error in finding Francois was disabled within the meaning of the policy and for ordering a continued payment of the disability benefits without requiring Francois to undergo continued medical treatment or to provide periodic proof of the continuation of his disability as a precondition for the payment of future benefits.

At the time the application for the policy was issued, Francois worked for his family owned, small corporation, R. Francois Interiors, Inc. The agent for MONY elicited information from Francois as to his occupation and wrote on the application for insurance in answer to the questions as to his present and former occupations in the last five years the following: “President-Management of Sales of Drapery, Carpet, interi- or decor.”.

The policy issued to Francois contained the following definition of total disability, to-wit:

“Total Disability means a disability which wholly prevents Insured from engaging in his regular occupation.
However, after the first 24 months of any one continuous period of such disability, it shall not then and thereafter constitute total disability unless during its further continuance it shall also wholly prevent the Insured from engaging in any occupation for remuneration or profit for which he is, or may be, reasonably fitted by education, training, or experience, having due regard for the Insured’s vocation at the time such disability commences.
In no event shall total disability be deemed to exist for any period of disability during which the Insured is not under the regular care and attendance of a legally qualified physician other than himself.”

The trial court found a major function of Francois’ job involved heavy manual labor such as laying tile floors, laying carpets and hanging draperies. Since plaintiff has been unable to perform this work since August, 1976, the trial court found him totally disabled within the meaning of the policy. The defendant does not seriously dispute the medical evidence that Francois is unable to perform the manual work, but strenuously contends the proper test against which to measure Francois’ present disability is his ability to perform the duties involved in being the President-Manager of his corporation and a salesman of draperies and carpets rather than that of a manual laborer installing floor tiles, carpets and draperies.

In the interpretation of disability policies, our courts have adopted a liberal interpretation and repeatedly held that total disability in policies similarly worded to that involved here contemplates “inability to do substantially all the material acts necessary to the prosecution of the insured business or occupation in substantially his usual and customary manner.” Crowe v. Equitable Life Assur. Soc., 179 La. 444, 154 So. 52 (1934); Ayres v. New York Life Ins. Co., 219 La. 945, 54 So.2d 409 (1951); Scalia v. Travelers Insurance Company, 210 So.2d 373 (2nd Cir. 1968); Foret v. Aetna Life and Casualty Company, 337 So.2d 676 (3rd Cir. 1976).

Although strenuously disputed by the defendant, there is substantial evidence supporting the plaintiff’s position that prior to the back injury most of Francois’ time was spent in laying tile floors, installing carpets and hanging drapes. His testimony to that effect was corroborated by his wife, son and two friends. Additionally, since the injury, Francois’ wife works in the business (as an employee of the family owned corporation) doing most of the managerial and sales work previously performed by the plaintiff, and his son (as a sub-contractor), does most of the manual work formerly performed by Francois. Notwithstanding the employment of Francois’ wife by the family owned corporation, it continued to pay Francois’ salary.

Dr. Pusateri testified Francois had a thirty percent (30%) disability of the body and is totally and permanently disabled from doing manual labor. Ms. Smith, an occupational therapist, testified Francois was functionally disabled to perform the manual work of laying floor tiles, installing carpets and hanging drapes.

No counter medical evidence was submitted by the defense. Instead, defendant introduced evidence showing plaintiff was doing some physical work, was making some sales and was supervising some manual work. Additionally, MONY’s Director of Individual Claims testified that as a result of the information supplied by Francois as to his occupation, he was issued a policy at a premium and for a non-professional who performs primarily management and supervisory functions rather than that of a laborer. As a laborer he testified the maximum coverage MONY would have issued to Francois was $600.00 per month for two years. Further, he testified MONY had private investigators confirm that Francois’ occupation at the time the policy was issued was that of President and Manager of an interior decorating firm. Based on this evidence, MONY contends Francois is not disabled because he is not performing the same occupation he was performing at the time the application for insurance was completed; i. e., performing the function of the President and Manager of the family owned corporation.

The trial court did not nor do we dispute the testimony of MONY’s Director of Individual Claims. The trial court observed, however, that the agent who wrote out the application did not appear to testify. We note that the private investigators who were to confirm Francois’ occupation at the time the application for the insurance was completed did not appear and testify. Instead MONY relied on the occupation stated in the application form and argued that since plaintiff is now able to perform the function of the occupation stated in the policy he is not disabled within the meaning of the policy. The trial court did not accept MONY’s argument, nor do we.

Under the provisions of the policy, MONY guaranteed to Francois that he could maintain the policy in force until he reached age 65 by paying the premiums and during that time MONY would not have the right “to reduce benefits, otherwise payable because of a change to a more hazardous occupation.” Thus, the policy not only contemplates, but in addition guarantees the right of the insured to change occupation without an increase in premiums or a decrease in benefits. Disability, therefore, is not tested from the occupation stated in the application for insurance; but rather, from the occupation the insured was engaged in at the time of the injury.

Here the trial judge found a major portion of Francois’ occupation was laying tile floors and carpets and hanging drapes at the time the application was completed and at the time of the injury. Tested against that, he concluded from the lay testimony and the medical testimony that Francois was disabled. As a reviewing court, we must give great weight to factual conclusion of the trier of fact and, where there is conflict in testimony, reasonable evaluation of credibility and reasonable inferences of fact should not be disturbed. Canter v. Koehring Co., 283 So.2d 716 (La. 1973). We cannot conclude from the record here that the trial judge erred in the finding of these facts. Further, in answer to defendant’s argument that the test for Francois’ disability had to be the occupation stated in the application of the policy, the trial judge stated that as a matter of law the defendant’s failure to call as a witness the agent who completed the application raised the legal presumption that the testimony of the witness would be unfavorable to the defendant. Although not necessary to a decision here, we are in accord with this legal conclusion of the trial judge. Fidelity Financial Services v. McCoy, 392 So.2d 118 (1st Cir. 1980); Morgan v. Matlack, Inc., 366 So.2d 1071 (1st Cir. 1979) and cases cited therein.

MONY also contends the trial court erred in ordering MONY to continue making disability benefits for the duration of the disability without requiring the plaintiff to undergo continued medical treatment or to provide periodic proof of the continuation of his disability as a pre-condition for the payment of future benefits. In answer to this contention, plaintiff counsel said: “plaintiff does not contest the defendant’s right as a matter of law to require him to comply with the provisions of the insurance policy which requires periodic proof of the continuation of the disability.” We agree the trial court cannot abrogate the defendant’s rights under the policy and that the trial court judgment is unclear on this issue. Accordingly, we amend the trial court judgment to provide that in the future in accordance with the policy provisions, plaintiff is required to give to the defendant, at least once every six months, notice of the continuation of his disability and defendant has the right, at his cost, to have the plaintiff examined by physicians of his choice during the period of disability. As so amended, the judgment is affirmed. Each party to bear his own cost of the appeal.

AMENDED AND AFFIRMED.


source: Caselaw Access Project

license: Public Domain

text:
    RICHARDSON’S FUNERAL HOME OF JEFFERSON PARISH, INC. and Winnfield Funeral Home of Jefferson Parish, Inc. v. James DULANEY.
    No. 12108.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 13, 1981.

      Gravel, Robertson & Brady, Susan M. Theisen and Camille Gravel, Jr., Alexandria, for plaintiff-appellee.
    Samuel W. Ethridge, Kenner, for defendant-appellant.
    Before BOUTALL, CHEHARDY and KLIEBERT, JJ.
   KLIEBERT, Judge.

On December 26, 1979, plaintiffs, Richardson’s Funeral Home of Jefferson, Inc. (hereafter Richardson), and Winnfield Funeral Home of Jefferson, Inc. (hereafter Winnfield), brought this action to enjoin and prohibit James Dulaney (hereafter Du-laney), from entering the grounds and buildings bearing Municipal No. 11112 Jefferson Highway or in any way threatening any agents or employees of the petitioners. At the time the petition was filed, a temporary restraining order was issued.

At the hearing for a preliminary injunction, plaintiffs filed in evidence a notarial act showing that on December 18, 1979 Winnfield conveyed to Richardson the land and buildings situated at 11112 Jefferson Highway. Testimony was introduced showing Dulaney, a terminated employee of Winnfield, had refused to permit employees and agents of Richardson on the premises and after entry was gained with the assistance of Winnfield and local law enforcement officers, Dulaney returned to the premises and repeatedly threatened and harassed the employees and agents of both petitioners.

Although denying he threatened or harassed petitioners’ employees, Dulaney did not make any serious effort to contradict the testimony submitted by petitioners as to his actions. Instead, he claimed to be the legal owner of a business known as “Winn-field Funeral Home” operating from the premises bearing Municipal No. 11112 Jefferson Highway as well as the owner of the contents, furniture, fixtures, supplies, inventory, etc. located on the premises. Upon termination of the hearing on the preliminary injunction, the trial judge, finding plaintiffs had made a prima facie case, ordered issuance of the preliminary injunction. Additionally, he ordered the petitioners to abide with a subpoena duces tecum and deliver at the hearing for the permanent injunction extensive corporate and financial records.

Following the hearing for the permanent injunction, the trial court made the following factual findings. The owner of the land and buildings bearing Municipal Number 11112 Jefferson Highway is Richardson. Dulaney was neither a stockholder, officer, agent nor director of Winnfield and never had authority to operate a funeral home from the premises. Additionally, Dulaney was a terminated employee of Winnfield Life Insurance Company, Inc. and as such had no authority to continue representing himself as owner, director, agent, and/or employee of the Winnfield Life Insurance Company, Inc. Accordingly, the trial judge ordered the issuance of the permanent injunction forever enjoining, restraining and prohibiting the defendant, James H. Dula-ney from entering on the grounds or in the buildings located at 11112 Jefferson Highway, River Ridge, La., and/or in any way harassing, threatening or harming any agents or employees of plaintiffs and/or impeding or obstructing the business operations conducted on the premises.

The defendant appealed contending the trial court erred in holding Winnfield was the former owner and had in fact conveyed the land and buildings to Richardson and in finding Dulaney had no interest in Winn-field Funeral Home of Jefferson, Inc. and, hence, was without authority to operate a funeral home on the premises.

The defendant does not claim ownership of the land and building; nor a stock ownership interest in Winnfield Funeral Home of Jefferson Parish, Inc. (the former owner), or Richardson’s Funeral Home of Jefferson Parish, Inc. (the present owner). Instead, he claims an interest in the property based on an alleged promise by Ben Johnson to transfer the property to him when his monthly insurance debit reached $50,-000.00. Additionally, he argues that the funeral business conducted from the premises were conducted by him as the proprietor under the name “Winnfield Funeral Home”. Nowhere does Dulaney show what authority he had to occupy the premises for the purpose of conducting a funeral business. He had neither an interest in the property nor an interest in the corporations which owned the property; nor was he a tenant or lessee of the owner. The only relationship he could show was that of an employee of Winnfield Life Insurance Company, Inc. and that relationship had been terminated at the time this suit was instituted. Even if, as contended by the defendant, he was an officer or employee of Winnfield Funeral Home of Jefferson Parish, Inc., the relationship alone would not establish authority for him to conduct a funeral business on the premises for his own account. To the contrary, the evidence shows rather conclusively that Winnfield Funeral Home of Jefferson Parish, Inc. had repeated difficulties with regulatory authority because of Dulaney’s efforts to act as a funeral director or embalmer when he was not licensed to do so in Louisiana.

Based on an allegation of fraud, the trial court permitted the defendant to attack the credit sale by Winnfield to Richardson by parol evidence and after listening to the evidence concluded the defendant’s attack was without merit. Even if it had been proven, the alleged oral contract to sell the property to Dulaney would not be enforceable because under our firmly settled and rigidly enforced jurisprudence, pa-rol evidence cannot be used to establish an ownership interest in immovable property where such interest has been denied. Little v. Haik, 246 La. 121, 163 So.2d 558 (1964); Cookmeyer v. Cookmeyer, 274 So.2d 739 (4th Cir. 1973).

The petitioner, Richardson, established that they were being disturbed in the possession and enjoyment of their property and hence entitled to injunctive relief to protect ownership, possession and enjoyment of their property. LSA-CCP Art. 3663. Moorhead v. State Department of Highways, 322 So.2d 330 (2nd Cir. 1975). There is no merit to the defendant’s contention that this is a suit by one out of possession to evict one in possession. Dulaney had no color of or claim to title and whatever possession or occupancy he had on the property was that of an employee of a corporate tenant. Accordingly, the trial court judgment is affirmed. Defendant to pay all costs.

AFFIRMED.

      . During the course of assisting the petitioners in gaining entry and possession of the premises, enforcement officers charged Dulaney with attempted theft of caskets found on the premises.


text:
    Mary Kay ALEXANDER, wife of/and Richard W. Alexander v. Anna P. TERRY, wife of/and Lester J. Terry and Allstate Insurance Company.
    No. 12111.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 13, 1981.
    William J. Scheffler, III, Gretna, for plaintiff-appellant.
    Joseph R. Ward, Jr., Buckley & Ward, New Orleans, for defendant-appellee.
    Before BOUTALL, CHEHARDY and KLIEBERT, JJ.
   KLIEBERT, Judge.

On October 16, 1978, plaintiff-appellant, Mary Kay Alexander (hereafter Alexander), was driving an automobile, owned by her husband, in a westerly direction (towards Avenue E) on Vic A. Pitre Drive in Westwego. The defendant-appellee, Anna P. Terry (hereafter Terry), was operating an automobile owned by her husband and insured by Allstate Insurance Company, in an easterly direction on Vic A. Pitre Drive. The Terry vehicle came across the center line of Vic A. Pitre Drive and collided head-on with the Alexander vehicle.

The claim by Mr. and Mrs. Alexander against Mr. and Mrs. Terry and their insurer, Allstate, was tried by jury. The jury was instructed to first decide if the Terrys were liable and, if so, to fix the special damages incurred by Mr. Alexander for his wife’s medical treatment and to fix the special damages for Mrs. Alexander for her general damages. The jury awarded $1,500.00 in specials to Mr. Alexander and $4,500.00 in general damages to Mrs. Alexander. It made no award to Mrs. Alexander for special damages.

The plaintiffs appealed contending the jury erred because it failed to award the full medical bill of $3,082.14 incurred by Mr. Alexander for the treatment of Mrs. Alexander. Also, they contend the jury erred in its failure to award the $360.00 in lost wages as special damages to Mrs. Alexander, and also committed further error by awarding her inadequate general damages. Thus, the issue on appeal is, did the jury commit manifest error?

Dr. Frank Schiavi, an orthopedic surgeon, diagnosed Mrs. Alexander’s injuries as a strained back superimposed on mild arthritic condition resulting from the accident. On cross-examination, he admitted his diagnosis was based on what he was told by Mrs. Alexander and if in fact she had pain before the accident or had less pain after the accident, then he would change his opinion. He also referred her to a neurologist. Although no positive evidence of a neurological problem was found, when complaints of pain persisted, on the recommendation of her neurologists, Mrs. Alexander was placed in traction at the West Jefferson Hospital for two weeks because it might help her. She did not respond to the treatment and continued to complain of pain.

Another orthopedist and treating physician, Dr. Richard McCall, testified that he had x-rays taken by Dr. Redler’s office which indicated degenerative changes at the Lumbar 4, 5 level of the back with a muscular ligamentous injury of the back. His own final diagnosis, however, was that her consistent complaint of pain was caused by an arthritic condition of the sacroiliac joint and that this condition may or may not have been caused by the accident.

Although plaintiffs subpoenaed Dr. Re-dler who had examined Mrs. Alexander on behalf of the defendant, the doctor did not appear at the trial because of illness.

We consider first the question of special damages. Plaintiffs’ counsel contends there was a stipulation between him and defense counsel that the $3,082.14 in medical expenses incurred by Mr. Alexander were incurred for the treatment of injuries incurred by Mrs. Alexander in the accident. Defendant’s counsel admits he stipulated $3,082.14 in medical expenses were incurred by Mr. Alexander; but, denied that he stipulated these were incurred for injuries arising out of the accident. Although the medical bills were introduced in evidence and are in evidence, there is nothing in the record to indicate a stipulation was entered into. In the absence of this evidence, we can only review the record as though no stipulation as to causation was entered into by the parties.

Of the total medical bills, approximately $1,500.00 was for traction treatment at the hospital which was ordered by Dr. Schiavi under the suggestion of the neurologist that it might help her. Additionally, the claim of $360.00 for loss of wages was based upon the wages lost while hospitalized for the traction treatment. Defense counsel argued to the jury that the hospitalization at West Jefferson did not arise out of an injury received in the accident but rather from the mild spondylolisthesis (compatible to agony rather than injury) of the back.

The fact the jury did not award the $360.00 for lost wages and awarded only $1,500.00 of medical expenses indicates it accepted the defendant’s argument over that of the plaintiff. Based on the medical evidence in this record, we cannot conclude the jury erred. There was ample evidence in the record for the jury to conclude the hospitalization for traction was not necessitated by the injuries sustained in the accident. Additionally, comparing the plaintiff’s direct testimony as to her injury, pain and restricted activity to the facts brought out by the defendants on cross-examination, such as her continued highly successful work activity, the long automobile trips taken, and the discrepancies between her testimony and that of her husband, we cannot say the jury was manifestly or clearly wrong if it believed the plaintiff exaggerated her injuries and her complaints of pain; nor can we say that the award of $4,500.00 in general damages for the injuries sustained by the plaintiff was an abuse of its discretion. In the absence of manifest error or an abuse of discretion, we are not to disturb the jury’s award. Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1976); Reck v. Stevens, 373 So.2d 498 (La.1979).

Accordingly, we affirm the lower court judgment; costs of the appeal to be borne by the plaintiffs.

AFFIRMED.


author: GUIDRY, Judge.

text:
    Elmer NAQUIN, Sr., Plaintiff-Appellee, v. Fernest SCHEXNAIDER, Defendant-Appellant.
    No. 8377.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 20, 1981.
    Earl H. Willis, St. Martinville, for defendant-appellant.
    Charles E. Bonnett, Breaux Bridge, for plaintiff-appellee.
    Before GUIDRY, FORET and DOUCET, JJ.
   GUIDRY, Judge.

This is a suit by Elmer Naquin, Sr. against Fernest Schexnaider to recover the sum of $1902.49, allegedly due for rental of a water pump and damages. Schexnaider has taken this appeal from a default judgment rendered against him in the City Court of Breaux Bridge, Louisiana. Schex-naider moved to remand the case to the trial court because the preliminary default was confirmed the same day the preliminary default was taken. We ex proprio motu dismiss the appeal as untimely.

This suit was filed on December 15, 1980 in the City Court of Breaux Bridge. The defendant, Fernest Schexnaider, was served on December 16, 1980, by domiciliary service. A default judgment was rendered against Schexnaider on January 13, 1981. Notice of judgment was sent on January 28, 1981. On January 30, 1981, Schexnaider filed a motion for a new trial. This motion was denied on February 10, 1981 and notice of judgment was sent the same day. The defendant moved for and was granted a suspensive appeal on February 26, 1981.

The delay for taking an appeal from a judgment rendered by a city court is provided in LSA-C.C.P. Art. 5003 as follows:

A. An appeal from a judgment rendered by a justice of the peace court, a city court, or a parish court may be taken only within ten days from the date of the judgment or from the service of notice of judgment, when such notice is necessary. B. Where an application for new trial is timely filed, however, the delay for appeal commences on the day after the motion is denied, or from service of notice of the order denying a new trial, when such notice is necessary.”

The application for new trial was timely filed. The delay for appealing in this case commenced to run on the day after notice of the order denying a new trial was served on defendant’s attorney of record. The record in this case reflects that service of notice of the order denying a new trial was made on defendant’s counsel of record on February 10, 1981. See LSA-C.C.P. Art. 4917. Therefore, the delay for appealing in this case commenced to run on February 11, 1981 and expired on February 20, 1981. This appeal, filed on February 26, 1981, is untimely.

For the above and foregoing reasons, this appeal is dismissed at defendant-appellant’s costs.

APPEAL DISMISSED.


author: DOUCET, Judge.

text:
    Miriam Louise DOHERTY, Plaintiff-Appellee, v. Robert BALDWIN, Defendant-Appellant.
    No. 8379.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 20, 1981.
    Michael H. Colvin, Lafayette, for defendant-appellant.
    James P. Doherty, Jr., of Andrus & Do-herty, Opelousas, for plaintiff-appellee.
    Before CULPEPPER, DOMENGEAUX and DOUCET, JJ.
   DOUCET, Judge.

In this suit partitioning community property, the husband appeals the classification of 84 acres of land as community, and the classification of a certifícate of deposit for $12,000.00 in the name of both husband and wife, as the separate property of the wife.

The parties herein were married on August 5, 1972. On October 4, 1972 Robert Baldwin’s grandfather donated unto him 4,300 shares of stock in Ambal Corporation, thereby making defendant the sole stockholder of the corporation which owned the 84 acres of land at issue herein. Subsequently, defendant needed capital for a private investment and secured a loan with First Homestead & Savings Association of New Orleans, using the 84 acres as security. On September 29,1976, Ambal Corporation, represented by Robert Baldwin, Jr., executed a cash sale of the 84 acre tract to First Homestead & Savings Association for a price of $75,000 cash. On the same date, First Homestead & Savings Association sold the 84 acres to Robert Baldwin, Jr. for the price of $75,000, represented by a promissory note in the amount of $75,000, secured by a first mortgage and vendor’s lien, granted by Robert Bruce Baldwin, Jr. in favor of First Homestead & Savings Association. The funds representing the $75,000 were paid to Ambal Corporation and deposited in its corporate bank account wherefrom a check was issued in exchange for a promissory note, payable to Ambal Corporation by Robert Baldwin, Jr. Thereafter the money was applied toward the parties’ investment in a subdivision development. The transaction was typical of homestead sale-resale security devices, except in one respect: the property was resold to a different legal entity — Robert Baldwin, Jr., individually, and not as President of Ambal Corporation. However, on April 6, 1979 an act of correction was executed by the Homestead and Robert Baldwin, Jr., both individually and as representative of Ambal Corporation, which was subsequently filed in the Clerk of Court’s records in and for the Parish of St. Tammany. In the said act it was acknowledged and declared that in the resale transaction an error was committed by placing title in the name of Robert Bruce Baldwin, Jr. instead of placing title in the name of Ambal Corporation through Robert Bruce Baldwin, Jr. as allegedly intended originally by the parties. Disputed is the legal effect and not the occurrence of these facts.

On February 17, 1977, the wife filed a petition for separation from bed and board and on June 16,1978, a judgment of separation was entered. Thereafter, on September 1, 1978, the wife filed a petition for partition of community property in St. Landry Parish, to which the husband responded with a declinatory exception of lis pendens, alleging that on August 21, 1978 a suit to partition community property had been filed in St. Tammany Parish. After a hearing on the matter, the said exception was denied.

At trial the husband claimed undivided ownership of the aforementioned 84 acres, and claimed that a certificate of deposit in the amount of $12,000, the funds for which were originally inherited by the plaintiff prior to marriage, had been converted into community property by the wife’s donation, as evidenced by transfer of the certificate into an account in the name of both husband and wife and the appellant’s subsequent pledge of same for a community debt. The wife claimed that the transaction with the Homestead Association resulted in the land becoming community property because of the different legal entity listed as vendee in the resale and the lack of a double declaration demonstrating that the purchase was made with the separate funds of the husband and that it was intended to benefit his separate estate. Furthermore, she asserted that the act of correction could not prejudice her rights acquired during the interim. The trial court agreed, finding that a deliberate transfer of the 84 acres from Ambal Corporation to Robert Bruce Baldwin, Jr. had occurred, that the subsequent act of correction was of no effect, and stated in its reasons for judgment that Homesteads simply do not make mistakes. In accordance with its finding that because of the absence of the double declaration in the sale from the Homestead to Robert Baldwin, Jr., the acreage was community property. The mortgage granted to the Homestead in the sum of $75,000 was held to be a community debt. Additionally, the trial court found the case of Owens v. Owens, 259 So.2d 454 (La.App.3rd Cir. 1972) to be dispositive of the characterization of the certificate of deposit and, accordingly, deemed it to be the separate property of the wife.

From these adverse rulings the husband has appealed, assigning numerous errors, all of which relate to the trial court’s characterization of the above two items of property.

Appellant contends that he was never divested of full ownership of the land by the sale-resale transaction, and that if he was, the error of the Homestead in listing him as vendee in the resale should not be imputed to him, but instead the error was cured retroactively by the subsequent act of correction. In support of his proposition that the transaction was merely a security device, and not an indirect donation to his spouse, the appellant notes that the property was valued in the inventory at $298,-000.00 whereas the loan secured was only $75,000.00, and there was no joint conveyance in the act of resale. In response to the trial court’s reasoning, the appellant asserts that to err is human and to attribute a Homestead with attributes greater than human is contrary to common sense.

Neither party denies that, in the absence of additional circumstances, property brought into a marriage or subsequently inherited by one of the spouses is separate property. La.Civil Code art. 2334. Appel-lee places reliance upon the presumption created in Civil Code art. 2402 that property acquired during the marriage is presumed to part of the community of acquets and gains. However appellee admits that a sale-resale transaction is a recognized exception to the judicial requirement of a double declaration necessary for a husband to acquire property for the benefit of his separate estate. Ruffino v. Hunt, 234 La. 91, 99 So.2d 34 (1958); Bagala v. Bagala, 237 La. 60, 110 So.2d 526 (1959); Fontenot v. Fontenot, 339 So.2d 897 (La.App. 3rd Cir. 1976); Cookmeyer v. Cookmeyer, 274 So.2d 739 (La.App. 4th Cir. 1973); Baker v. Baker, 209 La. 1041, 26 So.2d 132 (1946).

In the Barker case the husband had executed a deed prior to marriage under the mistaken belief it was a mortgage intending it as security for a loan only. After the parties were married a deed reconveying the property to the husband was executed. Upon divorce the wife attempted to show that the land involved was community property as the subsequent deed contained no recital of the requisite double declaration. The Supreme Court held that parol evidence was admissible to show the first deed was executed in error and that he had never parted with title, thus the reconveyance was not an acquisition. The court further held that the wife was “not a third party relying on the faith of the public records, since she did not acquire the property by purchase or any other way, and any rights that she must have had therein must necessarily flow from, and be determined by, an acquisition by her husband of the property during the existence of the community of acquets and gains between them.” 26 So.2d at 136. And in the Cookmeyer case the wife claimed interest in property because she and her former spouse had been engaged in a joint venture relating to the property, as here, and because a sale to and resale from a homestead did not contain a double declaration, the property was converted from separate to community. The court disagreed with both contentions, finding that there was no evidence of intent on behalf of the husband to make a donation and that the transaction was a pignorative contract which did not alter the separate nature of the husband’s property.

We find that the land was at all times the separate property of the husband. The sale-resale did not alter that status as the husband, the corporation being his alter ego, acquired nothing after the transaction that he did not own prior thereto. The record is absolutely devoid of any donative intent on behalf of the husband, instead the evidence shows that the sale-resale was intended as a security device. It is indeed improbable that a husband would attempt a donation by omission of a double declaration. Furthermore, the authentic act of correction is full proof of the contents contained therein. The wife is not a third party relying on the public records whose rights were affected by the act of correction. Although appellant’s contention that the double declaration rule violates the equal protection provisions of both Article 1, § 3 of the Louisiana Constitution of 1974 and the 14th Amendment of the United States Constitution may have merit, we need not address same because of the result reached herein.

It is hereby ordered that the 84 acres involved here be decreed to be the separate property of the appellant, Robert Baldwin, Jr.

Having concluded that the land was at all times the separate property of the husband, the mortgages granted to First Homestead & Savings Association must be considered a separate debt of the husband.

As to the trial court’s finding that the certificate of deposit was the separate property of the plaintiff, we affirm for the aforesaid reasons assigned by the trial judge. Additionally, the donation of an incorporeal movable requires authentic act. See Succession of Miller, 405 So.2d 812 (La.1981).

For the reasons assigned the judgment appealed from is reversed in part and affirmed in part. All remaining issues ancillary to the above are remanded for consideration consistent with this opinion.

REVERSED AND REMANDED IN PART; AFFIRMED IN PART.


text:
    J. Junior HAYMON, Plaintiff-Appellant, v. Dwayne HOLLIDAY, Defendant-Appellee.
    No. 8391.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 20, 1981.

      Levingston,» Tynes & Liles, Maurice L. Tynes, Lake Charles, for plaintiff-appellant.
    James K. Nichols, DeRidder, for defendant-appellee.
    Before CULPEPPER, DOMENGEAUX and DOUCET, JJ.
   DOUCET, Judge.

Plaintiff filed this suit against defendant for damages for wrongful conversion of a timber loading machine which plaintiff alleges was purchased from defendant on or about July 1, 1978. Defendant admitted taking possession but contends that he did so as owner. The trial court found that no contract of sale existed between the parties and accordingly ruled adversely to plaintiff, who now appeals, alleging manifest error was committed when the trial court found no agreement as to price, and disagreement as to conditions of the attempted transaction.

The dispute arises out of an employment relationship between the parties. Holliday was a general contractor or producer for a paper mill and he had several subcontractors, including Haymon, working for him. The subcontractors were paid a specified price per cord of wood in return for cutting the timber and loading it for transportation to the mill. Mechanical loaders were used to expedite the process. Due to the machines’ cost, they were generally purchased on credit by Holliday, who then verbally arranged with a subcontractor to work a machine on the Holliday job and to pay on it at a specified weekly rate for each week that the machine was in use. Such a working relationship is common in the logging industry, where timber producers often employed the independent contractor classification (erroneously) anticipating avoidance from workmen’s compensation liability.

The evidence indicates that the machinery utilized is invariably purchased by the producer, who possesses the requisite credit to acquire, and then resold or leased to the individual who operates them or who is enterprising enough to hire one to do so. The evidence further indicates that the subcontractor is often led to believe that the machine will become his after the producer has withheld a sufficient number of payments from money otherwise due the operator-purchaser. Another characteristic of the arrangement is that the resale contract is conditioned upon the subcontractor remaining in the servitude of the producer for the duration of the installments. As a result of the stipulations in these agreements, and the substantial inequality in the relative bargaining strength of the parties, title rarely passes to the subcontractor.

The facts in the present case are as follows: On April 4, 1978, Holliday purchased from Sanders Trucking Company a new 1978 Gafner Iron Mule. The cash price was $83,500 but the purchase was financed by Holliday through Commercial Credit Equipment Corporation. After subtracting a cash down payment of $2,000 and a trade-in allowance of $5,000 for an old loader, the deferred balance was $33,516.00, payable in thirty-six (36) monthly installments of $931.00 each. The note was secured by a chattel mortgage. The loader was intended for Otto Franklin, however the mill would not let Franklin work the job, thus Holliday approached Haymon concerning taking over the machine. Haymon had previously acquired machines from Holliday and assumed payments, however in two instances the machines were traded in before fully paid. On a third occasion Haymon voluntarily released a machine to Holliday when he was unable to work due to inclement weather.

As to the machine involved in this suit, the parties reached an understanding that Haymon would take possession of it and pay $250.00 per week to Holliday for each week it was in use; the amount being deducted from sums due Haymon each week on the job. It was mutually agreed that Haymon would be responsible for necessary maintenance and repair and that if Haymon was unable to work for Holliday during a particular week there would be no obligation to make payment that week. The terms and conditions under which ownership of the machinery would vest in Hay-mon are in dispute. Despite the substantial property rights involved, the transaction was conducted in a most casual manner and the contract was never reduced to writing, perhaps due to the working relationship the parties enjoyed at that time.

As agreed, Haymon went into possession of the loader and used it in performing work for Holliday until May 15, 1980 when Holliday temporarily closed down his operation because of wet weather. Up until this time weekly deductions were made by Hol-liday from Haymon’s earnings; for a total withholding of $19,400.00.

When the job was shut down on May 15, 1980, Haymon made arrangements to work for another contractor. Shortly thereafter Holliday resumed operations and requested Haymon to return but was informed Hay-mon was satisfied with his new job arrangement and would not return. Haymon told Holliday that he wanted to pay off the machine and Holliday agreed he could do so, but the parties disagreed on the amount of the payoff. On or about June 30, 1980, Holliday, without the knowledge or consent of Haymon, took possession of the loader and put it to his own use.

Suit was filed by Haymon wherein he alleged that title passed unto him at the time of the agreement, thus the taking by Holliday without consent or judicial process constituted wrongful conversion. Holliday responded that he never divested himself of ownership. Alternatively, Holliday contended that if there was a sale, it was subject to a suspensive condition, to wit: that the machine remain on the Holliday job until payment was made by Haymon.

Haymon testified that it was his understanding that ownership would vest in him upon making the final payment. His payments approximated the amount due to the finance company. He understood the price to be “around $38,000.00” and in his petition alleges that he agreed to pay $38,516.00. He further agreed to pay for insurance, repair, and upkeep expenses. Holliday testified that he was to receive the amount owed the finance company, plus $7,000 equity, for a total payment of $38,654.00, and that the sale was conditioned upon Hay-mon’s continued employment at his job site. He further testified that Haymon was to forfeit all interest in the machine if he left his employ; all of which was contradicted by Haymon.

Civil Code Article 2456 provides that a sale is considered to be perfect between the parties, and the property is of right acquired to the purchaser with regard to the seller, as soon as there exists an agreement or consent as to the object and price thereof, although the object has not yet been delivered, nor price paid. Thus, transfer of ownership is accomplished by operation of law as soon as there is concurrence as to the thing, price, and consent.

Accordingly, if the parties have agreed on the thing and the price, the sale is complete. The parties cannot validly agree that the seller will retain title to the object until payment of the purchase price, as Louisiana does not recognize the common law conditional sales contract for movable property. Roy O. Martin Lumber Co. v. Sinclair, 220 La. 226, 56 So.2d 240 (1951). The effect of this law is that the seller is divested of ownership as soon as the buyer is unconditionally bound to pay the purchase price, and such contractual attempts to retain title until payment are of no effect.

For the sale to be effective, the price of the sale must be certain, that is to say, fixed and determined by the parties. La. Civ.Code art. 2464. When this element of a contract is susceptible of two interpretations, it must be understood in that which it may have some effect, rather than in a sense which would render it negatory. La. Civ.Code art. 1951. Where a contract is capable of construction in accordance with justice and fair dealing, courts will adopt such construction instead of one entailing loss to a party to the contract, Terrell v. Alexandria Auto Co., 12 La.App. 625, 125 So. 757 (2nd Cir. 1930); Ascension Red Cypress Co. v. New River Drainage Dist., 149 La. 764, 90 So. 165 (1922); as persons may be expected to contract with one another on a basis equitable to each. Texaco, Inc. v. Vermillion Parish School Bd., 244 La. 408, 152 So.2d 541 (1963). In a doubtful case the agreement is interpreted against the seller. La.Civ.Code art. 2474; Robbert v. Equitable Life Assur. Soc. of United States, 217 La. 325, 46 So.2d 286 (1950); Kemp v. Beasley, 188 So.2d 425 (La.App. 3rd Cir. 1966); Wurzlow v. Placid Oil Co., 279 So.2d 749 (La.App. 1st Cir. 1973); Lanier v. Trans-World Life Insurance Co., 258 So.2d 103 (La.App. 2nd Cir. 1972). This rule is particularly applicable where there is substantial disparity in the relative bargaining power between the parties.

The evidence indicates that Holliday understood the purchase price to be $38,-654.00, whereas Haymon, although unsure of the exact amount, understood the price to be approximately $38,000, and alleges in his petition that the agreed sum was $38,-516.00. In other words, the dispute in price concerns a sum of less than one percent. Haymon has paid in excess of $19,000 and presently has no machine to show for it. Applying the above rules of construction to the circumstances of this case we deem the price to be sufficiently “certain” so as to satisfy the codal requirements. Accord: Thomas v. Thomas, 63 So.2d 468 (La.App. Orl.1953); General Finance Corp. of New Orleans v. Harrell, 188 So.2d 211 (La.App. 1st Cir. 1966).

The evidence further shows that Holliday either failed to disclose, or misrepresented to Haymon, that the agreed purchase price contained no element of recovery of the former’s equitable interest ($7,000.00) in the machine. Although Hay-mon did not intend to pay any equity, he did agree to pay in excess of $38,000, or the amount demanded by Holliday. At trial, Holliday asserted, and the court accepted, the misunderstanding as to whether equity was included in the price as a basis for invalidating the contract. However, the effect of Holliday’s misrepresentation as to equity is not to absolutely void the contract, but to render it voidable at the option of the person defrauded. Vest v. Richardson, 253 So.2d 97 (La.App. 4th Cir. 1971); Fidelity Credit Co. v. Bradford, 177 So.2d 635 (La.App. 3rd Cir. 1965), writ refused 248 La. 430, 179 So.2d 273; Jacob v. Uncle Sam Planting and Mfg. Co., 144 La. 1006, 81 So. 604 (La.1919). This form of equitable es-toppel is founded on good faith and the seller’s duty to disclose.

Next, we address the issue of whether the sale was conditioned upon Haymon remaining in the servitude of Holliday until the full price of the machine was paid. Haymon immediately took possession of the machine, following the transaction, and assumed full responsibility for the repair and upkeep. When the Holliday job was closed due to wet weather Haymon secured another job. Upon reopening of the Holliday job, Haymon was offered his old position. It is highly improbable that Haymon would have refused this offer if the result of such was to forfeit all interest in the machine ($19,-400.00) as contended by Holliday. The jurisprudence is well established that informed and experienced parties do not ordinarily bind themselves to unreasonable, absurd, inequitable, or unjust obligations. In the case of Oil Field Supply and Scrap Material Co. v. Grifford Hill and Co., 204 La. 929, 16 So.2d 483 (1943), the Supreme Court expressed the following rule on interpretation of contracts:

“We know that a contract is the law between the parties and that they are bound by their agreements regardless of harmful consequences, provided the agreement is not contra bones mores or in violation of some prohibitory law. However, where the issue is as in the instant case — what are the terms of the verbal agreement — the fact that informed and experienced persons do not usually and customarily bind themselves to unjust and unreasonable obligations is a serious factor that must be taken into consideration in determining that question.”

The same principle was stated in Bondio v. Joseph Binder, Inc., 24 So.2d 398 (Orl.La. App.1946) as follows:

“In interpreting the contract, it is, of course, of primary importance to discover whether its provisions are clearly set forth and that they express the true intention of the parties. And, even if the words used are fairly explicit, it is our duty to refrain from construing them in such a manner as to lead to absurd consequences.”

These rules have been consistently applied in Louisiana jurisprudence: Texaco, Inc. v. Vermillion Parish School Board, supra; J.H. Jenkins Contractor, Inc. v. City of Denham Springs, 216 So.2d 549 (La.App. 1st Cir. 1968); East Contract Supply, Inc. v. Petite Paree Fashions, Inc., 250 So.2d 839 (La.App. 4th Cir. 1971); Coyle v. Louisiana Gas & Fuel Co., 175 La. 990, 144 So. 737 (1932); Lama v. Manale, 218 La. 511, 50 So.2d 15 (1950), 23 A.L.R.2d 1312; Hodges v. Decoteau, 314 So.2d 500 (La.App. 1st Cir. 1975); U.S. Daughters, Etc., v. La. Dept. of Culture, 395 So.2d 455 (La.App. 4th Cir. 1981); Giamonco v. Fairbanks, 255 La. 167, 230 So.2d 65 (1969); Terrell v. Alexandria Auto Co., supra; Ascension Red Cypress Co., v. New River Drainage Dist., supra. See also La.Civ.Code art. 1965. We find that there was no such condition to the contract. Additionally, for reasons aforementioned, the disguised conditional sale, wherein the seller sought to retain title until full payment of the purchase price, was of no effect and title vested in Haymon when the transaction took place.

Having concluded that a sale took place, the defendant had no right to seize possession of the machine from the plaintiff, and thus a wrongful conversion occurred. Conversion is a distinct act of dominion wrongfully exerted over another’s property in denial of or inconsistent with the owner’s rights therein. Lincecum v. Smith, 287 So.2d 625 (La.App. 3rd Cir. 1973) writ refused, 290 So.2d 904; La.Civ.Code art. 2315; Hamilton v. Travelers Indemnity Co., 248 So.2d 617 (La.App. 3rd Cir. 1971); Importsales, Inc. v. Lindeman, 231 La. 663, 92 So.2d 574 (1957). The damages for conversion consists of the return of the property, or the value of the property at the time of the conversion. Boisdore v. International City Bank & Trust Co., 361 So.2d 925 (La.App. 4th Cir. 1978), writ denied 363 So.2d 1384; Hernandez v. Harson, 237 La. 389, 111 So.2d 320 (1959); LaFleur v. Sylvester, 135 So.2d 91 (La.App. 3rd Cir. 1961). The evidence indicates the plaintiff’s interest in the machine on the date of conversion was $19,400.00. Accordingly, we herein award him damages in the sum of $19,-400.00. Plaintiff also makes a claim for loss of wages due to the loss of the use of the machine for 60 days following the conversion, however, there is insufficient evidence of any loss and thus demand must be denied.

For the reasons assigned, the judgment appealed is reversed and set aside. It is now ordered, adjudged and decreed that there be a judgment in favor of the plaintiff, J. Junior Haymon, and against the defendant, Dwayne Holliday, for the sum of $19,400.00 together with legal interest thereon from the date of judicial demand until paid, and all costs in the trial and appellate courts.

REVERSED AND RENDERED.

      . The defendant did not answer the appeal.

      . Three additional witnesses testified to the effect that Holliday had made similar “sales” agreements as the one Haymon accepted, making Holliday’s proposition that the arrangement was a lease with option to purchase highly questionable.


author: BARRY, Judge.

text:
    Lesa Le Blanc TAUZIER v. Ronald Paul TAUZIER.
    No. 12095.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 21, 1981.

      Gertler & Gertler, David Gertler, New Orleans, for plaintiff-appellee.
    Guy W. Olano, Jr., Kenner, for defendant-appellant.
    Before GULOTTA, GARRISON and BARRY, JJ.
   BARRY, Judge.

Defendant appeals from a judgment which dismissed his rule to reduce alimony and child support and condemned him to pay medical expenses.

In January, 1980 defendant and his wife consented to a judgment which set alimony pendente lite and child support for their three year old daughter. Three months later defendant filed a rule to reduce both payments and plaintiff responded seeking an increase in both awards plus reimbursement for medical expenses. Defendant alleged a change in his financial situation and at the hearing attempted to introduce supporting evidence when the following exchange occurred:

“Q.: In connection with the income that you have made since the last time you were in Court, in January, have you prepared a list of expenses and income for the Court?
A.: Yes, I have.
Q.: Do you have a copy of that with you?
APPELLEE’S COUNSEL:
Your Honor, I object to this. I don’t believe the income or the expenses have any relevance to this matter other than Judge Roberts heard it two months ago.
THE COURT:
Objection sustained.”
$ 9{( Sfc Sfc * *
“APPELLANT’S COUNSEL:
It is your rule I should not be allowed to get this into evidence?
THE COURT:
Right.”

There is no explanation in the transcript why the Court disallowed appellant’s attempt to introduce his income and expenses in order to substantiate his alleged changed financial condition.

It is basic that in order to justify a requested reduction in support payments the mover’s change in financial circumstances must be shown. Bernhardt v. Bernhardt, 283 So.2d 226 (La.1973). Appellee argues that her objection to the expense sheet was on the belief that it contained the same information previously considered with the consent judgment. However, the above colloquy specifies that appellant was prepared to submit new figures covering the period following rendition of the consent judgment. We needn’t be reminded of the trial judge’s “much discretion” in allowing introduction of evidence; however, appellant was stopped from meeting his burden by exclusion of evidence necessary to justify his requested reduction in payments. This is reversible error necessitating a remand.

Appellee urges that appellant was compelled to make a proffer of his evidence under LSA-C.C.P. Art. 1636 and having failed to do so cannot now complain. We disagree. As shown, appellant attempted to introduce proof of his altered financial condition but was arbitrarily stopped by the trial judge. A proffer would have allowed this Court to review the evidence and avoid a remand, but the lower Court’s manifest error cannot serve to defeat appellant’s right to have his evidence considered when there has not been a proffer. The absence of this essential information in the record and the District Court’s refusal to consider it without giving any reason therefore, compels this Court, in the interest of justice, to remand the case to permit introduction of this evidence.

Appellant also complains that the trial judge ordered him to pay $200.00 in medical expenses which is outside the provision of the consent judgment which reads:

“Defendant, Ronald Paul Tauzier, shall maintain his present Blue Cross medical insurance covering defendant, Lesa Le Blanc Tauzier and the minor child, Heather;”

Appellee’s exhibits of expenses are sketchy, at best, but apparently include $300.00 for dental work, a $35.00 statement from an eye doctor and corrective shoes costing $68.78. (Appellee’s brief claims different amounts which are not in the record.) Appellee maintains these expenses were unforeseen and are extraordinary and appellant is liable to contribute toward payment. The non-custodial parent is not limited to the amount of support ordered by the last decree, but rather equity demands that either or both parents contribute toward extraordinary expenses incurred on account of an accident or a severe, unfor-seen or protracted illness. Wingo v. Cook, 306 So.2d 370 (La.App. 3rd Cir. 1975).

Since the above bills are not covered by the judgment, in order for appellant to be liable we must find that the expenses are extraordinary because of an accident or a severe, unforeseen or protracted illness. The record is void of any such evidence and therefore we have no basis to conclude the bills are extraordinary. Each parent has an obligation to support his/her children under authority of the Louisiana Civil Code. When custody is granted to one parent, the non-custodial parent’s obligation is generally limited by the provisions of the decree. If extraordinary expenses arise, the parent with custody of the child can seek contribution or reimbursement according to the means of each parent. This consent judgment limits appellant’s responsibility to payment for medical insurance and the District Court’s judgment condemning appellant to contribute toward ordinary medical expenses was error.

Therefore, the judgment of the District Court awarding appellee reimbursement for medical expenses in the amount of $200.00 is reversed and set aside. Further, this matter is remanded to the District Court for further proceedings on appellant’s rule to reduce alimony pendente lite and child support in conformity with the foregoing. Each party to pay his own costs.

REVERSED IN PART; REMANDED.

      . LSA-C.C.P. Art. 1636 states in part: “When a court rules against the admissibility of any evidence, it shall either permit the party offering such evidence to make a complete record thereof, or permit the party to make a statement setting forth the nature of the evidence. In all cases the court shall state the reason for its ruling as to the inadmissibility of the evidence. This ruling shall be reviewable on appeal without the necessity of further formality.”


text:
    Avernell WILLIAMS v. Otis D. JONES, et al.
    No. 12119.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 21, 1981.
    Wiedemann & Fransen, C. Scott Carter, New Orleans, for plaintiff-appellee.
    William H. Boustead, C. B. Ogden, II, New Orleans, for defendants-appellants.
    Before GULOTTA, GARRISON and BARRY, JJ.
   BARRY, Judge.

Defendant, New Orleans Public Service, Inc., appeals a jury verdict only on quantum urging the award for pain and suffering was excessive.

Plaintiff, a fare-paying passenger, was attempting to alight from defendant’s bus through its rear door when the vehicle moved forward with the door partially open. Plaintiff testified she fell into a sitting position and while holding the the door rail was dragged with one leg inside and the other leg outside the bus. N.O.P.S.I. admitted liability.

Four days after the accident plaintiff was examined by Dr. Wilmot Plouger, an orthopedist, who testified that he found tenderness over the posterior aspect of the right shoulder with full range of motion, but there was pain with flexion and abduction. He also found tenderness over the lower back with no palpable spasm, full range of motion of the lumbar spine, and tenderness over the right and left feet medially with no swelling. Vistaril was prescribed for the nausea which was associated with the pain.

One week post-accident: The diagnosis was unchanged but plaintiff’s pain persisted in the shoulder and lower back. Examination revealed tenderness over the shoulder, the right scapula and lower back with full range of motion in the shoulder, and restricted motion in her back without spasms. Tylenol with codeine was prescribed and plaintiff was placed on parafon forte and advised to use heat on the affected areas. The physician felt she was too symptomatic to return to work.

Three weeks post-accident: Plaintiff still experienced shoulder pain with the back injury improving. Examination revealed tenderness of the shoulder but she was still unable to return to work.

Five weeks post-accident: Tenderness in the lower back persisted. Plaintiff had returned to work, however, the orthopedist testified she had not completely recovered and was still symptomatic. Tylenoí for pain and parafon forte as a muscle relaxant was continued.

Nine weeks post-accident: The examination was normal, there were no complaints, and the physician felt she had convalesced. Dr. Plouger testified a patient can have pain without spasm and in obese patients (plaintiff weighs almost 200 pounds) spasm is difficult to locate and feel. Finally, the physician testified that in his opinion plaintiff was not a malingerer and was sincere in her complaints.

Plaintiff testified when she got home after the accident she took tylenol, a hot bath and applied heat. She described the accident as frightening because of her awkward and potentially dangerous position in the doorway. During recuperation she received phone calls from her employer asking when she would return to work which created the fear that she would lose her job. As a result, she testified she went back to work while still in pain and her problems continued after discharge by Dr. Plouger.

A “sitter” testified that for approximately six weeks after the accident she performed manual chores which the plaintiff could not do for herself, i. e., cook, buy groceries, clean the house, and give her baths.

A co-worker testified that before the accident plaintiff’s work was satisfactory and dependable, but following the accident plaintiff required assistance in her nurse’s duties and was “uncomfortable” while working.

The jury awarded $535.00 for lost wages, $525.00 for medical expenses, and $7,000.00 for pain and suffering. Appellant argues that plaintiff’s injuries were not serious, lasted less than two months, there were no objective signs of injury or limitation of motion, and the jury award for pain and suffering should be reduced to the $2,500.00 range.

We can only surmise that the jury was impressed by plaintiff’s complaint and the medical testimony and treatment which was required. The duration of pain does not cover a specific period of time, but apparently exceeded her medical treatments.

When requested to review and reduce quantum, we are ever mindful of the necessity to consider this particular plaintiff concerning her particular injuries. A review of this record convinces us that the jury had sufficient reason to render its award and we are unable to articulate otherwise. Reck v. Stevens, 373 So.2d 498 (La. 1979). We fail to find manifest error as a basis to disturb the award. Canter v. Koehring Co., 283 So.2d 716 (La. 1973); Arceneaux v. Domingue, 365 So.2d 1330 (La. 1978).

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

AFFIRMED.


author: •BROOM, Justice,

text:
    Dr. J. W. SHEFFIELD v. Ricky SHEFFIELD and Debra Sheffield.
    No. 52709.
    Supreme Court of Mississippi.
    July 15, 1981.
    As Modified On Denial of Rehearing Nov. 18, 1981.
    W. P. Mitchell, Mitchell, Eskridge, Voge, Clayton & Beasley, Tupelo, for appellant.
    Nora J. Hall, Roy 0. Parker, David O. Butts, Tupelo, for appellees.
    Before ROBERTSON, P. J., and SUGG and BROOM, JJ.
   •BROOM, Justice,

for the Court:

Medical malpractice is the theory of the wrongful death action of Ricky Sheffield and Debra Sheffield (plaintiffs) for the death of their newborn baby. Named as defendants were Dr. J. W. Sheffield, M.D., Itawamba County Hospital, Gena Farrar and Peggy Kent. Kent was non-suited. The jury exonerated all other defendants except Dr. Sheffield (appellant) against whom it returned a verdict for $100,000 actual and $2,500 punitive damages. Judgment was accordingly entered. Challenged by Dr. Sheffield’s appeal is the trial court’s action in allowing into evidence testimony concerning Dr. Sheffield’s former drug abuse problem and granting and refusing certain jury instructions. We reverse.

Dr. Sheffield was engaged in 1977 to look after the plaintiff Debra Sheffield during her pregnancy and the delivery of her expected baby. Between Dr. Sheffield, Debra and her Husband Ricky was an understanding that the baby would be delivered at the Itawamba County Hospital unless some problem arose which he could not handle in which case the baby would be transferred to a Tupelo or Amory hospital. When Debra consulted Dr. Sheffield on January 12, 1978, he advised her that she was in early labor. He ruptured her placenta and had her admitted to Itawamba County Hospital where he examined her at about 3 o’clock p. m. and found delivery not to be imminent. Leaving instructions to be called if needed, he returned to his nearby office, but about 4:55 p. m. the baby was bom in the labor room before he could be notified and come to the hospital. Dr. Sheffield arrived shortly afterward and found the baby to have a mild degree of distress but was physically normal. The baby was put in the nursery, and again the doctor returned to his office. At about 8:30 p. m. he returned to the hospital after being notified that the baby was in distress. At that time he administered respiratory distress medications, and the baby satisfactorily responded to the extent that the doctor left instructions to be called if needed and went home. Next morning at about 6:25 a. m., Dr. Sheffield was called to the hospital and found the baby in shock with severe distress and acidosis. The baby failed to respond to treatment and died of broncho-pneumonia.

The parents’ declaration against Dr. Sheffield alleged that he was negligent in failing to exercise the degree of skill and care ordinarily exercised by other physicians in the Itawamba County area and by failing properly to diagnose the baby’s illness. It further alleged that he knew or should have known that the baby needed special care not available at the Itawamba County Hospital, negligently failed to have the baby transported to Tupelo or Amory for proper treatment when it experienced complications, and failed to inform the plaintiffs of the complications so that they themselves might have transported the baby to receive proper treatment.

Plaintiffs took Dr. Sheffield’s deposition prior to trial thereby discovering that he had experienced a prior drug abuse problem. Dr. Sheffield then filed a motion in limine requesting the court to exclude his cross-examination in the presence of the jury as to his drug problem. The motion was overruled, and he was cross-examined in the jury’s presence concerning his drug problem. Also, witnesses Spigner and Marlin were examined concerning their knowledge of the drug problem of Dr. Sheffield whose objection was overruled.

DID THE TRIAL COURT ERR IN ALLOWING CROSS EXAMINATION OF DR. SHEFFIELD CONCERNING HIS FORMER DRUG ABUSE PROBLEM AND IN ALLOWING WITNESSES SPIGNER AND MARLIN TO TESTIFY AS TO DR. SHEFFIELD’S DRUG PROBLEM? Main thrust of the declaration against Dr. Sheffield was the charge that he was negligent in failing properly to diagnose the baby’s illness, in failing to have the baby moved to another hospital for treatment after complications developed, and in failing to advise the baby’s parents about the complications so that they could transfer the baby for treatment. Absent from the declaration was any charge that Dr. Sheffield was under the influence of drugs at any time when he was treating the baby or that he was at any time involved in the use of drugs.

When the plaintiffs took Dr. Sheffield’s pre-trial deposition, it was revealed that he had a prior history of using drugs. His response was a motion in limine to exclude questions and proof regarding his former drug abuse problem as well as actions taken by medical regulatory authorities pertaining to his drug problem, treatment, and his prescribing drugs. When this motion in limine was heard, the plaintiffs conceded that they did not plead the use of drugs although they now contend that such proof was relevant to his mental capacity, perception, memory, trustworthiness, accuracy, truthfulness, veracity and credibility as a witness. At the hearing, the trial judge reserved a ruling on whether Dr. Sheffield would be cross-examined on the drug issue and further ruled that he would not allow the plaintiffs to develop the drug abuse problem in making out their case. In voir diring the jurors, and over Dr. Sheffield’s objections, the plaintiffs were allowed to question the jurors if any of them were a drug addict. When the plaintiffs were presenting their case in chief they offered Dr. Sheffield’s deposition, and he objected to all questions relating to drug abuse as contained in it. The objections were sustained, but the court indicated it would permit the plaintiffs to cross-examine Dr. Sheffield pertaining to his drug abuse. Dr. Sheffield was called as an adverse witness and, over his objections, was cross-examined in detail concerning his previous drug problem. The testimony developed that about two years prior to his moving from Piedmont, Alabama, where he was practicing, to Fulton, he was using drugs. He moved to Fulton in March 1977. He had received drug treatment in Alabama about six months prior to moving to Fulton, and was taking drugs every few days when he came to Fulton. He was not taking drugs (Demerol and Leritine) when he delivered the baby and testified that he had not taken any since the fall of 1977. After the baby’s death in January 1978, a fellow physician, Dr. Marlin, complained to the state board about Dr. Sheffield’s past drug problem, but the death of the child was in no way connected with the drug complaint.

In their brief the parents state:

There was no direct proof of Dr. Sheffield’s being under the influence of drugs at the time in question.

We think in view of the state of this particular record, it was error to allow jury presentation of testimony related to Dr. Sheffield's former drug problem. The case would be in a better posture insofar as the parents of the baby are concerned had their declaration charged that Dr. Sheffield was under the influence of drugs and that his ability was in some aspect affected during the time that the baby was delivered or cared for before or after delivery. At the hearing of the motion in limine to exclude the doctor’s drug abuse problem, the parents indicated that they desired to present testimony of his drug use to go to his credibility. Now they take the position that his drug abuse was not only relevant to his credibility but also relevant to the issue of whether he was under the influence of such drugs at the time of treatment of the child as it related to the matter of judgment and exercise of the requisite degree of skill and care.

There seems to be a dearth of Mississippi case law on this precise issue, and none of the Mississippi cases cited are directly on point. Here a large part of the proof went to the matter of the doctor’s drug abuse problem although the issue was not raised in the plaintiffs’ declaration. The issue not having been raised in the declaration, the defendant doctor should not have been required to deal with it at trial upon the posture presented. It is one thing to charge in a declaration that a doctor is negligent in treatment accorded to those under his care, but it is vastly different to charge him with negligence and then at trial spend a large portion of the time in developing proof of drug abuse without amending the declaration. Though the facts were quite different, language taken from our decision in Terrell Investment Company v. Dunn, 253 Miss. 589, 595, 176 So.2d 291, 293 (1965) is pertinent.

The proof should conform to the allegations of the declaration, and appellee should not have been permitted to base her claim on one theory and then introduce evidence to recover a verdict based on an entirely different theory. Mississippi State Highway Comm’n. v. Jacobs, 248 Miss. 476, 160 So.2d 201, 161 So.2d 526 (1964); Mississippi State Highway Comm’n. v. Rhymes, 248 Miss. 468, 160 So.2d 197, 161 So.2d 527 (1964).

Isonhood v. State, 274 So.2d 685 (Miss. 1973) is factually distinguishable and therefore not in point here.

Appellee also cites Hundley v. St. Francis Hospital, 161 Cal.App.2d 800, 327 P.2d 131 (1958) which deals with the present subject but is not persuasive here because of factual differences. In Hundley, it was clear that the defendant doctor had used narcotics excessively for more than a year prior to the surgery as well as after surgery, and the proof showed that his ability to operate was adversely affected by his use of methadone. Uncontradicted proof in the instant case is that Dr. Sheffield had not taken drugs for a month and a half prior to the baby’s birth or during care administered while it was alive. We think his previous history of drug abuse problems is too remote and disconnected with the negligence issue to be properly presented to the jury in this case, therefore, retrial must be ordered. Of course, we recognize that he may be properly impeached by any testimony that would show that he was under the influence of drugs at any time during which he did anything relating to the baby’s care or at the time he was testifying.

Several sister jurisdictions, however, have had to consider the issue of the admissibility of drug abuse. As early as 1923, the Alabama Supreme Court in Standard Oil Co. v. Carter, 210 Ala. 572, 98 So. 575, 577 (1923) held that evidence of drug usage could not be introduced at trial to discredit a witness unless it was shown that he was using the drug at the time the event occurred or at the time of trial. The Court concluded:

The use of opium cannot be introduced to impair the credit of a witness unless it be shown that he was under the influence of the drug at the time of testifying or at the time of the occurrence of the event to which he is testifying, or that his mind was generally impaired by the use of said drug. State v. Gleim, 17 Mont. 17, 41 P. 998, 31 L.R.A. 294, 52 Am.St.Rep. 663; Eldridge v. State, 27 Fla. 162, 9 So. 449.

See People v. Williams, 6 N.Y.2d 18, 187 N.Y.S.2d 750, 755-6, 159 N.E.2d 549, 553-4 (1959).

More recently, other states have also adopted the position taken by the Alabama Supreme Court in Carter, supra. In State v. Dault, 19 Wash.App. 709, 578 P.2d 43, 49 (1978), the appellate court reiterated the Washington Supreme Court’s holding limiting the introduction of evidence of drug use. The Court succinctly summarized as follows:

Generally, evidence of drug abuse is admissible to impeach the credibility of a witness if (1) there is a showing that the witness is using or is influenced by drugs at the time of testifying, (2) if there is a showing that the witness was using or was influenced by the drugs at the time of the occurrence which is the subject of the testimony, or (3) when a defendant puts his own character in issue. State v. Renneberg, 83 Wash.2d 735, 738, 522 P.2d 835 (1974). Annot., Use of Drugs as Affecting Competency or Credibility of Witness, 65 A.L.R.2d 705 § 5(a) and § 6 (1975); 50 Wash.L.Rev. 106 (1975).

Also see Lusher v. State, 390 N.E.2d 702, 704 (Ind.App.1979) and 81 Am.Jur.2d, Witnesses, § 546 (1976). The general trend, therefore, has been to exclude a witness’s past history of drug addiction or drug abuse unless the defendant’s credibility can be impeached under one of the exceptions enumerated in Dault, supra.

For the same reasons it was error for the trial court over objection to allow witnesses Spigner and Dr. Marlin to give testimony regarding Dr. Sheffield’s drug problem.

Careful study of the evidence causes us to conclude that in this case punitive damages should not be allowed. The record does not show any proper basis upon which a jury could logically conclude that the defendant was guilty of any willful or gross negligence or of such wanton or malicious misconduct as to justify exacting from him punitive damages. Recklessness or wantonness on his part in disregard for the baby cannot be concluded from the testimony although it was sufficient to establish ordinary negligence for which a jury may return a verdict against him for actual damages.

Appellant also raises the following question: SHOULD CONSIDERATION HAVE BEEN GIVEN BY THE ECONOMIST AND THE JURY TO THE LIVING EXPENSES WHICH THE BABY WOULD HAVE INCURRED HAD SHE LIVED? Our prior decisions are not entirely consistent on this proposition. Louisville & N. R. Co. v. Garnett, 129 Miss. 795, 93 So. 241 (1922) held that there should have been deducted from the present cash value of the deceased’s life an amount representing “his living expenses.” Our decision in Louisville stated that without the deduction made the deceased is “more valuable to his family dead than alive, and that is true.” Louisville properly cites the following cases as holding that the deduction should have been made: Hines v. Green, 125 Miss. 476, 87 So. 649 (1921); New Deemer Mfg. Co. v. Alexander, 122 Miss. 859, 85 So. 104 (1920).

Other cases are cited for the appellees as more recently holding that the living expenses of the deceased are not a deductible item in arriving at damages payable in a wrongful death action. Jeffreys v. Clark, 251 Miss. 129, 168 So.2d 662 (1964); Illinois Central Railroad Co. v. Sanders, 229 Miss. 139, 90 So.2d 366 (1956).

Mississippi Code Annotated § 11 — 7— 13 (Supp.1980), our wrongful death statute, makes no mention of such terms as “net” or “present” cash value. The statute merely allows the jury to fix damages as it may determine “to be just” after considering all damages of every kind to the deceased plus all damages of every kind to the interested parties. We have stated that a proper element of damage is the amount that the deceased might have been entitled to as the present net value of his own life expectancy. Dickey v. Parham, 295 So.2d 284, 285 (Miss.1974). Although logical arguments can be made on either side of this issue, we think the better view is that the living expenses of the deceased should be deducted from the present cash value of the deceased’s life as set forth in Louisville & N. R. Co. v. Garnett, supra. Therefore, we overrule all cases contrary to this holding. Hereafter this will be a relevant factor in calculating damages in wrongful death cases, and the defendant will be entitled to have the jury instructed accordingly. We commend to the bench and bar instruction number 20.21 in Mississippi Model Jury Instructions (1977) which states that from the deceased’s probable gross annual income there must be deducted what he/she “would have spent on [his/her] own personal living expenses.” Upon request of the defendant, a jury instruction embracing the living expenses deduction principle will be granted.

Upon retrial, jury instructions should be given clearly defining negligence by referring to “acts which would constitute such” in accordance with our previous decisions. Trainer v. Gibson, 360 So.2d 1226, 1228 (Miss.1978). Instructions given in this case, although not being totally general or abstract instructions, should in more detail relate the facts relied upon as constituting negligence.

Other assignments of error do not merit discussion.

REVERSED AND REMANDED.

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


text:
    Charles Kenneth JONES v. STATE of Mississippi.
    No. 52967.
    Supreme Court of Mississippi.
    Nov. 18, 1981.
    James W. Pannell, Ripley, for appellant.
    Bill Allain, Atty. Gen. by Marvin L. White, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Benton County; William R. Lamb, Judge.

Before PATTERSON, C. J., and WALKER and BOWLING, JJ.

AFFIRMED.

SMITH and ROBERTSON, P. JJ., and SUGG, BROOM, LEE and HAWKINS, JJ., concur.


text:
    James A. TRUSTY v. STATE of Mississippi.
    No. 52908.
    Supreme Court of Mississippi.
    Nov. 18, 1981.
    Liston, Crull & Gibson, Luther P. Crull, Jr., Winona, for appellant.
    Bill Allain, Atty. Gen. by Carolyn B. Mills, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Montgomery County; Niles McNeel, Judge.

Before ROBERTSON, P. J., and SUGG and LEE, JJ.

AFFIRMED.

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


text:
    Dovie Cozette Wilson BLAIR v. Carroll Douglas WILSON.
    No. 52971.
    Supreme Court of Mississippi.
    Nov. 18, 1981.
    C. Joy Harkness, Laurel, for appellant.
    Guy M. Walker, Laurel, for appellee.
   Appeal from Chancery Court, Jones County; J. Shannon Clark, Chancellor.

Before SMITH, P. J., and BROOM and HAWKINS, JJ.

AFFIRMED.


text:
    Audley Bedford HARRIS v. STATE of Mississippi.
    No. 52898.
    Supreme Court of Mississippi.
    Nov. 18, 1981.
    Lester C. Franklin, Pascagoula, for appellant.
    Bill Allain, Atty. Gen. by Charles W. Maris, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Jackson County; Robert T. Mills, Judge.

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

AFFIRMED.


text:
    Roosevelt BARBER, et al v. Richard Tom McALPIN.
    No. 52996.
    Supreme Court of Mississippi.
    Nov. 18, 1981.
    Banks & Nichols, Fred L. Banks, Jr., John A. Nichols, Jackson, for appellant.
   Appeal from Chancery Court, Simpson County; J. W. Walker, Judge.

Williamson & Smith, William H. Smith, III, Mendenhall, for appellee.

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

AFFIRMED.


text:
    George Norman TERRY v. Louise TERRY.
    No. 52940.
    Supreme Court of Mississippi.
    Nov. 18, 1981.
    Rehearing Denied Dec. 9, 1981.
    Laurel G. Weir, Thomas L. Booker, Philadelphia, for appellant.
    Martin & Jones, Robert D. Jones, Meridian, for appellee.
   Appeal from Chancery Court, Lauderdale County; Michael Sullivan, Special Chancellor.

Before PATTERSON, C. J., and SUGG and LEE, JJ.

AFFIRMED.


text:
    Jimmy Dale MOFFETT v. STATE of Mississippi.
    No. 52949.
    Supreme Court of Mississippi.
    Nov. 18, 1981.
    Robert J. Brantley, Jr., Jackson, for appellant.
    Bill Allain, Atty. Gen. by Mark A. Chinn, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Hinds County; William F. Coleman, Judge.

Before PATTERSON, C. J., and SUGG and LEE, JJ.

AFFIRMED.


text:
    F. A. CROSSLAND v. STATE of Mississippi.
    No. 53011.
    Supreme Court of Mississippi.
    Nov. 18, 1981.
    Butler & Butler, Jan R. Butler, Eupora, for appellant.
    Bill Allain, Atty. Gen. by Carolyn B. Mills, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Webster County; Clarence E. Morgan, Jr., Judge.

Before ROBERTSON, P. J., and BROOM and HAWKINS, JJ.

AFFIRMED.


text:
    Arlis H. MORGAN v. Margaret J. MORGAN.
    No. 53072.
    Supreme Court of Mississippi.
    Nov. 18, 1981.
    William F. Vick, Jackson, for appellant.
    Joe B. Moss, Jackson, for appellee.
   Appeal from Chancery Court, Hinds County; Paul G. Alexander, Chancellor.

Before ROBERTSON, P. J., and BROOM and HAWKINS, JJ.

AFFIRMED.


text:
    Rayford PORTER v. ALEXANDER HARDWARE COMPANY, INC.
    No. 52966.
    Supreme Court of Mississippi.
    Nov. 18, 1981.
    Butler & Brown, James M. Brown, William C. Butler, Laurel, for appellant.
    Burns H. McFarland, Bay Springs, for appellee.
   Appeal from Circuit Court, Jasper County; L. D. Pittman, Judge.

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

AFFIRMED.


author: WRIGHT, Presiding Judge.

text:
    Wesley O. PAYNE v. DIRECTOR OF the DEPARTMENT OF INDUSTRIAL RELATIONS, an agency of the State of Alabama, and Southern Slag Products, Inc.
    Civ. 2670.
    Court of Civil Appeals of Alabama.
    July 15, 1981.
    Rehearing Denied Aug. 19, 1981.
    Frederick H. Heffler of Birmingham Area Legal Services Corp., Columbiana, for appellant.

      George Cocoris, Gen. Counsel, and Frank D. Marsh and G. Guy Hayes, Asst. Gen. Counsel, Montgomery, for appellees.
   WRIGHT, Presiding Judge.

This is an unemployment compensation case.

Claimant’s employment was terminated and he applied for benefits under our unemployment compensation law. The claims examiner awarded benefits subject to six weeks disqualification for misconduct leading to discharge per § 25-4-78(3)c, Code of Alabama (1975). The employer appealed and the appeals referee found claimant to be totally disqualified from benefits. The Board of Appeals affirmed and claimant appealed to the circuit court pursuant to § 25 — 4—95.

After trial de novo in the circuit court, claimant was again denied benefits, the court finding that “plaintiff has failed to carry the burden of proof regarding his claim.” Claimant appeals from the denial of benefits. We affirm.

The ore tenus rule is applicable. When an unemployment compensation case is heard orally before the court sitting without a jury, the court’s findings are presumed correct and will not be reversed on appeal unless clearly contrary to the great weight of the evidence. Davis v. Prestwood, 381 So.2d 85 (Ala.Civ.App.1980).

The evidence at trial showed that the claimant was employed at Southern Slag Products, Inc. and had been operating a “snap-tie head machine” there for about seven years. On October 1,1979, the claimant complained to his supervisor that his hand was sore and requested that he be allowed to perform a job other than running this machine. Supervisor took claimant off the machine and placed him on an easier job, normally paying less, at the same hourly, wage he had been receiving while operating the machine.

Claimant worked at the easier job for two weeks. During this period the supervisor daily asked claimant about his sore hand and each time claimant replied it was “better.” Claimant sought no medical aid. On a Thursday morning the supervisor again asked claimant about the hand and was informed that it would be well by Monday.

The next Monday, October 15, upon the supervisor’s inquiry, claimant reported that his hand was “okay.” Supervisor then directed claimant to return to his regular job of running the machine. Claimant refused, making no complaint about his hand but responding that he was not going to run the machine anymore because it gave him a headache. Supervisor, having no other employee on duty at that time capable of operating the machine, offered, if claimant would run the machine that day, to make other arrangements so claimant wouldn’t have to run it anymore. Claimant refused again and was told that if he wouldn’t run the machine he could go home. Claimant went to wash up and the supervisor reported the situation to his superior. When claimant returned from the washroom, he was warned that he would be fired upon further refusal to return to his regular job operating the machine. Claimant made no attempt to operate the machine. Instead, again refusing to do so, he was discharged. Claimant testified on his own behalf that the reason he refused to run the machine on the day in question was because his hand was still sore and he felt he couldn’t run it. He further stated that he “probably” told the supervisor he had a headache; that he told his supervisor his hand was “better” on regular inquiry; that he stated his hand was “getting a little better” (though not “okay”) on the day he was fired. He admitted that he made no attempt to run the machine on that day.

The trial court found claimant to be totally disqualified from benefits. The dis-positive issue on appeal is whether the trial court’s judgment is supported by the evidence. See, Ventress v. Batey, 333 So.2d 584 (Ala.Civ.App.1976).

Claimant points out that the trial court’s order, finding “plaintiff has failed to carry the burden of proof regarding his claim,” does not indicate under which particular disqualifying provision he was denied benefits. From the nature of the case, the record before us and the arguments of the parties, it is evident the trial court found claimant totally disqualified under one of the following: § 25-4-78(2) (voluntary departure from work without good cause), or § 25-4-78(3)b (discharge for misconduct after previous warning). If there was evidence to support a finding of disqualification under either of the disqualifying statutes, it is sufficient. City of Montgomery v. Couturier, 373 So.2d 625 (Ala. 1979). We consider the evidence supports disqualification under § 25-4-78(3)b.

Claimant’s argument that the evidence does not justify the judgment, as we understood it, is directed to the weight of the evidence. The evidence, the testimony of the claimant and supervisor, was conflicting. The trial court had the duty to resolve the conflicts and determine the weight and inferences to be drawn from the evidence. Steele v. Carter, 390 So.2d 299 (Ala.Civ.App.1980). This it did.

Claimant also argues he should not be totally disqualified under § 25-4-78(3)b, but could only be partially disqualified under § 25-4-78(3)c, because of lack of previous warnings prior to his discharge. The evidence indicates claimant was warned at least once, and possibly twice, that he would be fired if he did not obey the supervisor’s directive to operate the machine. Whether claimant should be totally disqualified under (3)b or partially disqualified under (3)c was for the trier of fact according to the evidence. Department of Industrial Relations v. Jaco, 337 So.2d 374 (Ala.Civ.App. 1976). The evidence is supportive of warnings prior to discharge.

Finding no error in the judgment of the trial court, that judgment is due to be affirmed.

AFFIRMED.

BRADLEY and HOLMES, JJ., concur.


author: JONES, Justice.

text:
    Ex parte Wesley O. PAYNE. (Re Wesley O. PAYNE v. DIRECTOR OF the DEPARTMENT OF INDUSTRIAL RELATIONS, et al.)
    80-868.
    Supreme Court of Alabama.
    Oct. 30, 1981.
   JONES, Justice.

WRIT DENIED — NO OPINION.

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


author: BRADLEY, Judge.

text:
    Tommy HICKS, Dovie Mae Williams, Melvin J. Phillips, Charles E. Phillips, Jimmy N. Phillips, Thomas R. Phillips, Maxine Smith, Cornel N. Phillips and William Todd Phillips, a minor v. Belle HUGGINS, Frederick Phillips, and Lambert Phillips.
    Civ. 2781.
    Court of Civil Appeals of Alabama.
    July 22, 1981.
    Rehearing Denied Aug. 26, 1981.

      J. Milton Coxwell, Jr. of Coxwell & Cox-well, and N. S. Hare, Jr., Monroeville, for appellants.
    Wendell C. Owens, Monroeville, for ap-pellees.
   BRADLEY, Judge.

This is an appeal from a judgment setting apart a homestead exemption and investing fee simple title thereto in the widow of the deceased.

On June 8, 1979 Belle Huggins filed suit against defendants, nieces and nephews of her deceased husband, to have set aside to her in fee simple eighty acres of land which was the homestead of her deceased husband. T. N. Huggins died intestate and without minor heirs in 1946.

Defendants answered by denying that the land in question was all the property owned by deceased and that the property was valued at less than $2,000. They also denied that Mrs. Huggins was entitled to set aside the land as a homestead in fee simple.

After a hearing the trial court found that at the time of his death, T. N. Huggins was the owner in fee simple of the land in question, that Belle Huggins was the widow of T. N. Huggins and had lived on the land in question continuously since her husband’s death, that T. N. Huggins left no children or lineal descendants, and that at the time of his death the land in question constituted all the land owned by deceased and was less than one hundred sixty acres in size and less than $2,000 in value.

The record discloses that T. N. Huggins died on December 9, 1946 leaving a widow but no children or lineal descendants. Belle Huggins, his widow, testified that at the time of his death, T. N. Huggins owned eighty acres of land, which was their home. The land had been previously owned by T. N. Huggins’s mother. Huggins and his sister inherited the property from their mother. Huggins bought his sister’s one-half interest in 1942 for $1,100.

In 1944 a storm blew down part of the timber on the property. At that time, about one-half of the land was wooded. The downed timber was salvaged and sold.

In 1946 Huggins died intestate and his estate was not administered. Belle Huggins and T. N. Huggins were living on the property in question at his death and she has continued to live there since his death.

Mrs. Huggins testified that the property was worth less at the time of her husband’s death than it was when he purchased it in 1942. The reason given for the difference in value was the loss of the timber.

Lawrence Manning testified that he owned an eighty acre tract near Mrs. Huggins’s property and that his land was more valuable than the Huggins property because his property was situated on the main thoroughfare and was more suited to cultivation. He said he paid $2,000 for his property in 1943.

R. A. Wible, a witness for defendants, stated that the Huggins property was worth between $3,040 and $3,200 in 1946.

Defendants’ first issue questions the authority of the trial court to set aside to Mrs. Huggins her husband’s homestead in fee simple as a result of his death in 1946. For this contention defendants rely primarily on the repeal in 1951 of Title 7, § 663, Code of Alabama 1940. They say that Title 7, § 663, Code of Alabama 1940, which was in effect at the time of T. N. Huggins’s death and would have authorized the setting aside to his widow of his homestead, was repealed in 1951, and thereby nullified any rights to the homestead that Mrs. Huggins might have had. We disagree.

Title 7, § 663, Code of Alabama 1940 provided, in part, as follows:

When the homestead set apart to the widow and minor child or children, or either, constitutes all the real estate owned in this state by the decedent at the time of his death, the title of such homestead vests absolutely in them, whether there be administration on the estate of the decedent or not; but the title to the homestead shall not vest absolutely in them as against the other heirs of decedent until it is so set apart and until it is judicially determined that it is all the real estate owned by the decedent, and that it is not of greater value than two thousand dollars ....

It is true that § 663 was in effect at the time of T. N. Huggins’s death in 1946, that said section was repealed in 1951, and that Mrs. Huggins did not seek to have the homestead set aside to her until 1979. But, the homestead rights of a widow are determined by the law in force at the time of the decedent’s death. Tipton v. Tipton, 268 Ala. 497, 108 So.2d 348 (1959); Craig v. Root, 247 Ala. 479, 25 So.2d 147 (1946); Davis v. Davis, 63 Ala. 293 (1879). In other words, the rights, of a widow under the homestead statutes are fixed by the death of her husband. Nix v. McCoy, 280 Ala. 516, 195 So.2d 893 (1967).

In the case at bar T. N. Huggins died in 1946 and § 663 was in effect at that time. Thus Mrs. Huggins’s right to have her deceased husband’s homestead set aside to her was fixed in 1946. Consequently, the subsequent repeal of § 663 had no effect on Mrs. Huggins’s rights to her husband’s homestead. The repeal of a statute does not destroy vested rights. Blake v. State, 178 Ala. 407, 59 So. 623 (1912). And, Mrs. Huggins’s rights to the homestead were vested by the death of her husband. It should be noted, however, that title to the property did not vest absolutely in Mrs. Huggins until the provisions of § 663 were satisfied. But this does not mean that Mrs. Huggins’s right to have such homestead set aside to her was not established by the death of her husband in 1946.

Defendants argue that Title 7, § 663 violates the equal protection provisions of the United States and Alabama Constitutions. This issue was raised for the first time, however, by defendants in their motion for new trial. Constitutional issues raised for the first time in a motion for new trial come too late for consideration on appeal. Burton v. Burton, Ala.Civ.App., 379 So.2d 617 (1980).

Defendants say that Mrs. Huggins’s claim to set aside the homestead in fee simple is barred by laches.

There is no statute of limitation which prescribes the time within which a widow must present her petition to have the homestead set aside where there has been no administration of decedent’s estate. Craig v. Root, supra. There has been no administration of T. N. Huggins’s estate. Furthermore, when the property was occupied as a homestead by the decedent at the time of his death, was all the property he owned in Alabama, and did not exceed the value or area allowed by law, the widow takes a life estate in the property without the necessity of any action on her part. The law intervenes and establishes such an estate. Craig v. Root, supra.

It is also a well-settled rule that laches cannot be imputed to one in the peaceable possession of land. Craig v. Root, supra. In the instant case Mrs. Huggins had a life estate in her husband’s property and had lived on it continuously since his death.

When the affirmative defense of laches is properly presented, the facts and circumstances of each case govern the court in its determination of the inquiry. Craig v. Root, supra. Moreover, it has often been said that mere delay resulting in no disadvantage to another will not bar a petitioner’s right or remedy. Craig v. Root, supra.

Clearly, in the case at bar, no disadvantage has resulted to defendants by Mrs. Huggins’s delay in seeking to have her husband’s homestead set aside to her in fee simple.

Defendants’ final issue is whether the proof is sufficient to show that the property in question was worth less than $2,000 in 1946. We find that it is sufficient.

The trial court found that the value of the property did not exceed $2,000 in value, which was the maximum allowable under Title 7, § 663. The trial court’s finding must be upheld if there • is any credible evidence to support it. Raidt v. Crane, Ala., 342 So.2d 358 (1977).

The record shows that Mrs. Huggins testified that the property in question was worth less than $2,000 and that an adjoining property owner testified that the property in question was worth less than his property, which he valued at slightly more than $2,000.

We consider both witnesses competent to testify as to the value of the property by virtue of § 12-21-114, Code 1975, which is as follows:

Direct testimony as to the market value is in the nature of opinion evidence; one need not be an expert or dealer in the article, but may testify as to value if he has had an opportunity for forming a correct opinion.

Whether a witness has had an opportunity to correctly form an opinion as to value is a question for the court to decide and the court will not be reversed absent an abuse of discretion. Blount County v. Campbell, 268 Ala. 548, 109 So.2d 678 (1959). We find no abuse of discretion here. Both witnesses testified they were familiar with the property in question.

The judgment of the trial court is affirmed.

AFFIRMED.

WRIGHT, P. J., and HOLMES, J., concur.


author: FAULKNER, Justice.

text:
    Ex parte Tommy HICKS, et al. (Re Tommy HICKS, et al. v. Belle HUGGINS, et al.)
    80-882.
    Supreme Court of Alabama.
    October 30, 1981.
   FAULKNER, Justice.

WRIT DENIED — NO OPINION.

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