text:
    Alexie J. PLAISANCE, Sr., et al. v. Levy COLLINS, Jr., et al.
    No. 12284.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 20, 1978.

      David M. Richard, Thibodaux, for petitioners and appellees.
    Emile M. Weber, Baton Rouge, for defendants and appellants.
    Before LANDRY, COVINGTON and PONDER, JJ.
   COVINGTON, Judge.

This is a possessory action instituted by Alexie J. Plaisance, Sr., Lester J. Plaisance, Yvette C. Egle, Debra Egle, and Diana Egle Wilson, hereinafter referred to as the “Plai-sance group,” on August 5, 1968, against Levy (Levi) Collins, Jr., Gibson Collins, Kirby Collins, Mrs. C. J. Theriot, Sr., and Mrs. D. W. Wilson, hereinafter referred to as the “Collins group,” seeking to have recognized the plaintiffs’ right to possession over a tract of land designated as Tract I, situated in the west half of the east half of Section 6, Township 20 South, Range 22 East, La-fourche Parish, Louisiana, asking for an order requiring the defendants to assert their claim of ownership in a petitory action within 60 days after the judgment becomes executory, and praying for injunctive relief.

The petition sets out that the plaintiffs possessed as owners of the disputed tract since their acquisition from La-Terre Co., Inc. by deed dated April 13, 1958, recorded May 28,1959, in C.O.B. 251, Folio 652 of the conveyance records of Lafourche Parish; and that they and their ancestor in title had been in possession since 1927 without attempted possession or disturbance from the defendants until August 25, 1967, when the defendants disturbed their possession by constructing a barbed wire fence.

All of the land involved was formerly marsh land; but when the protective levee was constructed in 1959, most of it became dry land, overgrown with high grass. The properties of the two groups join and the land in dispute is a strip about 96 feet in width which is bounded on the north by other property of the Plaisance group, on the south and west by the canal and “protective levee” (beyond which is the property of La-Terre Co., Inc.), and on the east by Lot One and part of Lot Two of Section 6, Township 20 South, Range 22 East. The Plaisance group claims that the disputed strip of land is part of Tract I acquired from La-Terre by the 1959 deed; the Collins group claims that the disputed strip of land is part of the property acquired by Levy Collins from Alexson Anselmi by deed dated February 23,1931. The Collins group claims their western boundary is Catfish Bay or Lake; the Plaisance group claims their eastern boundary is the “Lovell line” (a line which was surveyed for La-Terre by J. A. Lovell, Parish Surveyor).

The Collins group answered, denying the claims of the plaintiffs, and asserted their own claim of possession and alleged that the fence was constructed about July 3, 1967. They also reconvened, bringing their own possessory action, alleging possession as owners through inheritance from their deceased father, Levi Collins' commencing with the date of acquisition by the senior Collins from Alexson Anselmi by deed dated February 23,1931, recorded February 28, 1931, in C.O.B. 66, Folio 323, of the conveyance records of Lafourche Parish. They alleged disturbance by the filing of the present action by the Plaisance group on August 22, 1968 (suit actually filed on August 5, 1968), and prayed for recognition of their possession, requiring the Plaisance group to bring a petitory action in due course, and seeking injunctive relief.

Thereafter, on October 11, 1968, the trial judge granted the Plaisance group a preliminary injunction, finding from the evidence adduced at the trial on the rule that the following facts were established:

“1. The property in question is located in the Parish of Láfourche within the jurisdiction of this Court.
“2. The plaintiffs (Plaisance group) were in peaceful, open, notorious possession, as owners, of the property in question for more than a year prior to the disturbance by the defendants.
“3. The disturbance by the defendants commenced on August 24, 1967, and was a disturbance in fact by the construction of a fence on the property involved in this litigation.
“4. The petition for possession and the ancillary rule for preliminary injunction were filed on August 5, 1968, within one (1) year of the date of the disturbance.”

Based upon the foregoing finding of facts, the trial judge rendered his opinion that:

“Article 3663 of the Code of Civil Procedure provides in part that a person who is disturbed in the possession which he or his ancestors in title have had for more than a year of immovable property of which he claims the ownership, the possession or the enjoyment, is entitled to injunctive relief under the applicable provisions of Chapter 2 of Title I of Book VII to protect or restore possession of immovable property to him.
“Under the facts as found by the Court and the law applicable thereto, judgment has been rendered in favor of plaintiffs granting to plaintiffs the preliminary injunction which they seek herein to restore them to possession of the subject property.”

Then, after the first jury trial ended in a mistrial, the case was assigned for trial by jury again; and Steven Dale Collins, who had purchased the interest of Gibson Collins, was substituted as a party defendant and plaintiff in reconvention. Upon the death of Alexie Plaisance, Sr., his widow and heirs were substituted as parties in the suit.

Following trial by jury and the response of the jury to interrogatories, verdict was entered in favor of the Plaisance group, and judgment on the verdict was signed by the trial judge on April 6, 1978, in favor of the plaintiffs, Lester Plaisance, Yvette C. Egle, Debra Egle, Gertrude Dugas Plaisance, Alexie J. Plaisance, Jr., Kip J. Plaisance, and J. Wayne Plaisance, and against the defendants Levi Collins, Jr., Steven Dale Collins, Kirby Collins, Mr. C. J. Theriot, Sr., and Mrs. D. W. Wilson, granting the Plai-sance group a permanent injunction, recognizing the plaintiffs’ right to possession of the disputed property, dismissing the recon-ventional demand of the Collins group and ordering the defendants to assert their adverse claim of ownership to the disputed property in a petitory action to be filed within sixty days after the date the judgment becomes executory, or be forever barred from claiming ownership to the subject property, at the defendants’ costs.

Subsequently, the trial attorney for defendants withdrew as counsel, and the defendants, through their present counsel, perfected a devolutive appeal to this Court.

The elements and characteristics of the possession necessary to maintain a possessory action vary with the nature of the property and other attending relevant circumstances. Gaulter v. Gennaro, 345 So.2d 92 (La.App. 1 Cir. 1977). What constitutes possession in any case is a question of fact and each ease must rest upon its own peculiar circumstances. Certainly, the landowner can only exercise over his land such possession as is practical and is reasonably contemplated from the nature of the property. Thus, the acts which must be shown to establish possession are governed to a large extent by the use to which the land is destined or for which it is suitable. The type of possession essential to maintain a possessory action for one kind of property may differ from that required for another. Obviously, the possession requisite in the case of farm land is more than in the case of wood land; and, more possession is required in the case of wood land than in the case of swamp or marsh land. Liner v. Louisiana Land and Exploration Company, 319 So.2d 766 (La.1975). That there may be possession of swamp or marsh land can not be questioned. The possession of marsh land contemplated by law is that which is commensurate with its nature, its chief value, and by the extent of the operations conducted thereon which the character of the soil and surroundings may reasonably permit. Hill v. Richey, 221 La. 402, 59 So.2d 434 (1952).

The evidence shows that this was marsh land, suitable only for trapping up until 1959. Then, the “protective levee” was constructed. The quality of the land for trapping purposes deteriorated after the construction of the levee, because the land became drier with unfavorable conditions to sustain trapping of a commercial nature. The property between the levee and the “Lovell line” largely became overgrown with high grass. While La-Terre owned the property the company extensively and exclusively trapped the marsh land. They marked the boundaries, as evidenced by the “Lovell line,” and kept “outsiders” from trapping on their property. After the Plai-sances acquired the property, they maintained the boundary lines, clearing them twice a year; they have patrolled and watched after the property; they have granted mineral leases and a right-of-way to a water district to lay a water line parallel to the “Lovell line” on the property, and have paid the taxes.

The possessory action is an action brought by the possessor of immovable property to be maintained in his possession “when he has been disturbed, or to be restored to the possession or enjoyment thereof when he has been evicted.” LSA-C.C.P. art. 3655. To maintain the possessory action, the possessor must allege and prove that he had possession as owner at the time of the disturbance; that he possessed quietly and uninterruptedly for more than one year immediately prior to the disturbance; that there has been a disturbance in law or in fact; and that the action was brought within one year of the disturbance. LSA-C.C.P. arts. 3656, 3658; Johnson, Guide to Louisiana Real Actions, Ten Year and Thirty Year Prescriptions 7 (1967); Riseman, The Possessory Action, 20 Tul.L.Rev. 524 (1946).

Possession necessary to maintain a possessory action must be either corporeal possession, or civil possession preceded by corporeal possession by the possessor or his ancestors in title. LSA-C.C.P. art. 3660; Liner v. Louisiana Land and Exploration Company, supra; Gaulter v. Gennaro, supra. The possessor must possess as owner, or be “one who possesses for himself”, as the Code of Civil Procedure, Article 3656, expresses it. See Grant Timber & Mfg. Co. v. Gray, 131 La. 865, 60 So. 374 (1912); see also Louisiana Materials Co., Inc. v. Cronvich, 258 La. 1039, 249 So.2d 123 (1971). The possessor must have possession of the property “at the time the disturbance occurred.” This, of course, does not mean that there must be some actual physical possession evidenced by some affirmative action at the exact moment at which the disturbance took place; it is not necessary that the possessor show that at that exact moment he was physically on the land doing something consistent with the nature of the land. See Whitney National Bank of New Orleans v. Munch, 91 So.2d 144 (La.App. 4 Cir. 1956). What it means is that there must have been no interruption of the possession for a period of one year prior to the disturbance which caused the suit to be instituted.

This was the interpretation given by our Supreme Court in Liner v. Louisiana Land and Exploration Company, supra at 776:

“We must conclude then that the words ‘quietly and without interruption’ do not mean that a possessor who suffers a ‘disturbance’ on several occasions in the year preceding the suit has lost his right to bring the possessory action. The possessor may suffer disturbances throughout the year preceding the filing of the pos-sessory action, and unless his possession comes to an end in such a way that he cannot show that he was in possession for more than a year prior to the disturbance complained of, he has the right to bring the action within a year of the disturbance.
“A disturbance might interrupt possession. It might bring a corporeal possession to an end. (If, however, the disturbance results in an eviction by force or fraud, the one year possession requirement is eliminated). A disturbance may be an eviction, but it might also be ‘any other physical act which prevents the possessor of immovable property or of a real right from enjoying his possession quietly, or which throws any obstacle in the way of that enjoyment.’ C.C.P. 3659. “The acts of Louisiana Land and Exploration Company for the year preceding February 3, 1972 did constitute a disturbance of Liner’s possession. However, he was not evicted. He and his son continued to trap on the disputed property. He continued to replace the boundary stakes removed by Louisiana Land and Exploration Company. Liner protested the August and September ‘invasions’ by Louisiana Land and Exploration Company employees. Liner was not expelled, nor did he acquiesce in a usurpation. C.C. 3449. “C.C.P. 3658(2) cannot, without adding a new requirement to the possessory action, be read literally. It cannot mean that there must be no adverse claim for a year before the disturbance. ‘Quietly’ appears in C.P. 49 and may be compared to ‘peaceably’ in C.C. 3454, subd. 2, and in contrast to the violence referred to in C.C. 3491:
“ ‘A possession by violence, not being legal, does not confer the right of prescribing.
“ ‘That right only commences when the violence has ceased.’
“As stated in Aubry & Rau, supra, § 180:
“ ‘Possession is marred by violence, that means it is not peaceful, if it was acquired and continued by acts accompanied by physical or psychological violence.
“Consequently, we interpret the requirement of C.C.P. 3658(2) to mean that there must have been no interruption of the possession for one year, prior to the disturbance which caused the suit.”

The Supreme Court explained further its interpretation of Article 3658(2), in its per curiam opinion on application for rehearing, as follows:

“Under the Civil Code, possession is not interrupted when it is merely disturbed. A possessor does not lose possession against his consent unless he is forcibly expelled or unless the disturber usurps possession and holds it for more than a year. See Civil Code Article 3449, which declares:
“ ‘A possessor of an estate loses the possession against his consent:
“ ‘1. When another expels him from it, whether by force in driving him away, or by usurping possession during his absence, and preventing him from re-entering.
“ ‘2. When the possessor of an estate allows it to be usurped and held for a year, without, during that time, having done any act of possession, or interfered with the usurper’s possession.’
“Similarly, in speaking of interruption of prescription (rather than of possession) Article 3517 of the Louisiana Civil Code declares that ‘a natural interruption is said to take place when the possessor is deprived of the possession [enjoyment] of the thing during more than a year, either by the ancient proprietor or even by a third person’.
“Thus, an interruption of possession for purposes of the possessory action coincides with an interruption of acquisitive prescription under Article 3517 of the Civil Code. (Moreover, if so interpreted, the loss of the right to possess under Article 3449(2) of the Civil Code coincides in time with the acquisition of the right to possess by another under Articles 3454(2) and 3456 of the Civil Code.)
“We therefore conclude that one may possess quietly and without interruption for more than a year so as to be entitled to bring a possessory action, La.C.Civ.P. art. 3658(2), even though during that year disturbances in fact or law have occurred, La.C.Civ.P. art. 3659.”

See also Note, 51 Tul.L.Rev. 168 (1976); Yiannopoulos, The Work of the Louisiana Appellate Courts for the 1974-75 Term— Property, 36 La.L.Rev. 335, 354 (1976).

The possession required to bring a possessory action is considered as the same possession required to commence the running of acquisitive prescription. Norton v. Addie, 337 So.2d 432 (La.1976); Liner v. Louisiana Land and Exploration Company, supra. Thus, the Civil Code approach to “possession” is found in LSA-C.C. arts. 3426 and 3438 (Possession is the detention or enjoyment of a thing which a possessor exercises himself or through another person who exercises it in the possessor’s behalf); LSA-C.C. art. 3427 (The two different kinds of possession are natural and civil); LSA-C.C. arts. 3428 and 3430 (Natural possession is corporeal detention, such as occupying a house or cultivating ground); LSA-C.C. arts. 3429 and 3431 (Civil possession is legal detention by virtue of title and with intent to possess as owner, such as ceasing to occupy a house or cultivate ground without intent to abandon the right of possession); and LSA-C.C. art. 3436 (Two distinct things are required in order to be able to acquire possession: intention of possessing as owner and corporeal detention of the thing). When possession is once acquired by corporeal detention, possession is preserved by the intention of possessing, although the possessor “may have ceased to have the thing in actual custody.” LSA-C.C. art. 3442. The intention of retaining possession is presumed to continue until a contrary intention is definitely shown. LSA-C.C. arts. 3443 and 3444. However, a possessor may lose possession “against his consent” if he is forcibly ejected or prevented from returning or allows his property to be usurped for a year without doing “any act of possession.” LSA-C.C. art. 3449. He may also lose possession by transferring or abandoning it. LSA-C.C. art. 3448.

Our Civil Code provisions make it clear that one who has acquired corporeal possession continues in possession until he transfers it or abandons it, or until another expels him from it, or until he allows the land to be usurped and held for a year without doing any act of possession or without interfering with the usurper’s possession. Liner v. Louisiana Land and Exploration Company, supra.

Our Civil Code also clearly points out that corporeal detention of each foot of land by one who claims under a title is unnecessary for a possessor to have corporeal possession of the land. LSA-C.C. art. 3437. It is sufficient for a possessor to enter upon and occupy a part of the land, if he has the intention of possessing all of the land within the boundaries; it is not necessary that he “pass over every part of it.” LSA-C.C. art. 3437.

Moreover, when a tract of land is acquired under a title, the corporeal possession of a part is equivalent to the possession of all the property within the limits or boundaries described in the title, LSA-C.C. art. 3498; Marks v. Collier, 216 La. 1, 43 So.2d 16 (1949); see also Bolding v. Eason Oil Company, 248 La. 269, 178 So.2d 246 (1965); Leader Realty Company v. Taylor, 147 La. 256, 84 So. 648 (1920); Zeringue v. Blouin, 192 So.2d 838 (La.App. 1 Cir. 1966), writ refused, 250 La. 100, 194 So.2d 98 (1967).

In Ernest Realty Company v. Hunter Company, 189 La. 379, 179 So. 460 (1938), our Supreme Court said:

“It is a well settled and established principle of law that where the legal and rightful owner of a tract of land has actual possession of a part thereof, he is in legal and constructive possession of the whole, except such portion thereof that may be in the actual possession and occupancy, by inclosure or otherwise, of a party claiming either by title under article 3478 or thirty years’ adverse possession, article 3499. The reason for the rule is that both cannot have constructive possession.”

The disturbance in fact, which is applicable in the instant case since the disturbance to the Plaisance group was allegedly the construction of a fence by the Collins group, is characterized as “an eviction, or any other physical act which prevents the possessor from enjoying his possession qui-. etly, or which throws any obstacle in the way of that enjoyment.” LSA-C.C.P. art. 3659.

A disturbance of possession may or may not interrupt possession, depending on the nature of the disturbance. Thus an eviction by force or fraud would interrupt possession. However, a disturbance may not deprive a person of his dominion and control over the property if it merely interferes with the right to possession or throws an obstacle in the way of the enjoyment of possession. Unless possession comes to an end in such a way that the possessor can not show that he was in possession for more than a year prior to the disturbance complained of, he has a right to bring the possessory action within a year of that disturbance. Liner v. Louisiana Land and Exploration Company, supra.

The evidence in this case establishes that the Plaisance group, preceded by. its ancestor in title, La-Terre, had possessed the property in question for many years prior to the institution of this action. The exercise of exclusive trapping over the property, accompanied by the maintenance of the boundaries constituted corporeal possession over the entire tract. Norton v. Addie, supra.

. The Collins group has assigned four (4) specifications of error.

The first specification of error is as follows:

“(1) The trial court erred in finding that defendants did not exercise possession over all portions of their tract and, in particular, did not exercise possession over that portion in dispute in this case.”

The Collins group alleged that they possessed the property in dispute as owners. For this limited purpose, title may be used to show possession as owner, the extent of possession, and the length of time possessed. LSA-C.C.P. art. 3661. They argue that the property purchased by Levi Collins, Sr. in 1931 included the property in dispute. They introduced their title for this purpose.

Kirby Collins testified, R. 641:
(Mr. Richard):
“Q. Well, what do you feel that the [Collins] deed pertains to—do you know?
“A. I have no way of knowing. We have never had an abstract pulled on the property, and eventually it will come out.”

Thus, there was evidence before the jury on which it could find that the Collins group did not possess as owners the tract in dispute. There was some basis for the jury to conclude that the Collins group was claiming property not included in their deed.

Although the Collins group offered evidence of trapping one season, an attempt to raise chickens by building a chicken house, hunting snipe and having a tenant house in the vicinity (all prior to 1959, the time of acquisition by the Plaisance group), this evidence, being evidence of isolated acts of a transitory nature, is insufficient to establish possession in the Collins group. Such occasional use of the property was insufficient to establish the corporeal possession of the Collins group. Norton v. Addie, supra.

The appellants contend that because they hold a deed translative of title any act of possession on part of their land constitutes constructive possession of the whole and they are presumed to possess to the full extent of their title. However, the constructive possession of the Collinses and their ancestors in title was lost by the corporeal possession of the disputed property by La-Terre beginning about 1927. By permitting La-Terre’s possession to continue without interference, Alexson Anselmi and subsequently Levy (Levi) Collins lost constructive possession of the tract. See Norton v. Addie, supra.

Therefore, there was evidence from which the jury could conclude that the Collins group did not possess, as owners, the property in dispute.

The Collins group assigned as the second specification of error the following:

“(2) The trial court erred in finding that plaintiffs exercised possession over the tract claimed by them, including that portion of the tract which was claimed by defendants as a portion of their tract.”

The Plaisance group testified that they were in possession of the disputed property in question as owners and introduced their title to show the extent of their possession. Lester Plaisance testified that in April of 1959 he, along with his brother and father, purchased the property in dispute, together with other property, from La-Terre Land Co., Inc. The deed was introduced in evidence. Before the Plaisance group purchased the property in dispute it was marsh land. The “Lovell line”, which had been surveyed by Lovell for La-Terre, marked the higher property from the marsh land. In 1959, the “protection levee” was constructed. That same year the Plaisance group purchased from La-Terre Land Company, Inc. two (2) tracts of land, one tract containing about thirty-five acres and one containing about seventeen acres. The property in dispute is located in the thirty-five acre tract.

To show the extent of possession by the Plaisance group, Alexie Plaisance, Sr. testified that he and his family had maintained the “Lovell line” since 1959. They staked the line and cleaned it at least twice a year. They had 2V2 inch galvanized pipe along the line at intervals of approximately two hundred (200') feet. When the Plaisance group purchased the property, there was a mineral lease in favor of Texaco Oil Company. In 1964, the Plaisance group again leased to Texaco Oil Company, and were still getting paid in December of 1973.

The Plaisance group, in 1967, executed a servitude to the Lafourche Parish Water District, and a water line was constructed between the “Lovell line” and the “protection levee” which dissected the property in dispute (before the fence was constructed by the Collins group). The property in dispute between the “Lovell line” and the “protection levee” was covered with grass, ■in some areas six (6') and seven (T) feet tall, between the years 1959 and 1968.

From this evidence the jury could conclude that the Plaisance group had possession necessary to maintain a possessory action.

The Collins group assigned as the third specification of error the following:

“(3) The trial court erred in allowing the testimony of Alexie Plaisance, now deceased, to be read by his son in the 1978 trial.”

On July 21st, 1975, Alexie Plaisance, Sr. died. Prior to trial, there was a Motion and Order to Substitute Party Plaintiff, which substituted for Alexie Plaisance, Sr., his wife, Gertrude Dugas Plaisance, and his children, Kip Plaisance, Wayne Plaisance and Alexie Plaisance, Jr.

The Collins group contends that it was prejudicial to permit Kip Plaisance, one of the parties, to read the testimony of his father taken at the earlier trial, in December of 1973. However, no such objection was made at the time of trial. Appellants can not raise that question for the first time on appeal. Further, the trial judge explained to the jury what was taking place. There is no evidence in the record, nor would the judge permit, any expressions of sympathy or exclamation by Kip Plaisance other than the simple reading of testimony. An objection was made as to its admissibility; this was properly overruled.

Forrest Griffin, who testified in the trial of December of 1973, was also deceased at the time of the trial, and Kip Plaisance read this testimony to the jury. Thus, with the attorneys reading the questions, Kip Plaisance read the testimony of Alexie Plaisance, Sr. and Forrest Griffin. There is nothing objectionable in this procedure.

In Rouyer v. Carroll, 47 La.Ann. 768, 17 So. 292 (1895), the Supreme Court said:

“The general rule, of ancient origin, is that in case a witness has died, or ‘departed the realm,’ since his testimony was taken in some prior judicial proceeding, it may be introduced in evidence in a subsequent proceeding between the same parties. ‘Testimony of a witness in a previous suit between the same parties, for the same cause of action, where there has been an opportunity for cross-examination, may be used by either party, if the witness be dead or absent, or, for other cause, cannot be produced.’ (citations omitted).”

See also Young v. Reed, 192 So. 780 (La. App. 2 Cir. 1939); Comment, The Admissibility of Former Testimony in Civil and Criminal Trials, 20 La.L.Rev. 146 (1959).

Comment, The Admissibility of Former Testimony in Civil and Criminal Trials, 20 La.L.Rev. 146 (1959), at 158, states:

“Former testimony is admissible as an exception to the hearsay rule when certain elements are present. These elements may be briefly summarized as follows: (1) unavailability of the witness; (2) a former tribunal with the power to subpoena witnesses, administer oaths, and allow cross-examination; (3) testimony under oath or a legally sufficient affirmation; (4) opportunity for cross-examination at the former proceeding; (5) identity of issues; and (6) identity of parties. Complete reciprocity of parties is not required in Louisiana and generally at common law. In a criminal case the accused must be confronted with the witnesses against him, but the courts hold that this requirement is satisfied when the accused was confronted by the witnesses at the former proceedings. The only one of the above elements which appears to present a substantial problem is identity of parties. The Louisiana Supreme Court still requires that the person against whom the testimony was offered must have been the same in both suits or there must have been privity in blood, law, or estate.”

The Collins group assigned as the fourth specification of error the following:

“(4) The trial court erred in finding that plaintiffs’ main demand was filed within one year of the alleged disturbance.”

The Plaisance group filed the possessory suit on August 5, 1968, alleging that the Collins group constructed two (2) lines of barbed wire fence running between the “Lovell line” and the “protection levee” on or about August 24, 1967.

The Collins group presented evidence to prove that construction of the fence was actually begun on July 5,1967. To substantiate this, they introduced the testimony of the Collinses who had worked on the fence and other testimony.

The Plaisance group contradicted the testimony of the Collins group, and also offered some evidence of an attempt by the Collins group to have the invoice and receipt of the purchase of the posts backdated. In any event, the jury heard the witnesses and, from its response to the interrogatories, it is apparent that the jury believed the evidence of the Plaisance group.

The most that could be said for the evidence of the Collins group is that it shows only that a number of creosoted posts were put in the high grass on the property a few days after July 4, 1967. There is no evidence that any barbed wire was strung or that all of the posts were in place until August 24, 1967. It was also in August that the Collinses had some bulldozer work done on the property, which tends to confirm the August date.

The credible evidence shows that the disturbance occurred on or about August 24, 1967. Since the Plaisance suit was instituted on August 5, 1968, it was filed within one year of the alleged disturbance.

A jury verdict should be maintained unless the record reflects that its conclusions of fact are not supported by the evidence, or its application of the law is clearly erroneous. Perrin v. St. Paul Fire and Marine Insurance Company, 340 So.2d 421 (La.App. 4 Cir. 1976). In the absence of manifest error, the appellate court is not to disturb, on appeal, the finding of the jury which has evidence before it furnishing a reasonable factual basis for its verdict, based upon its reasonable evaluation of credibility. See Canter v. Koehring Company, 283 So.2d 716 (La.1973); Andrepont v. Naquin, 345 So.2d 1216 (La.App. 1 Cir. 1977).

The factual findings of the jury in determining possession of the disputed property by the Plaisance group at the time of the disturbance and for more than one year immediately prior to the disturbance, in determining that there was a disturbance by the Collins group, and that the Plaisance group filed the possessory action within one year of the disturbance are supported by credible evidence in the record. We have reviewed the evidence and under the particular facts and circumstances of this case, we find no manifest error in the jury’s findings. See Dyson v. Gulf Modular Corporation, 338 So.2d 1385 (La.1976). There was evidence which, if believed by the jury, as the verdict indicates it was, goes to show that it was the Plaisance group who was in possession for more than one year, the Collins group who disturbed the plaintiffs’ possession, and that the Plaisance group brought the possessory action within one year of the disturbance.

We consider, as did the jury, that the Plaisance group possessed the property in question quietly and within interruption for more than one year prior to the disturbance in fact created by the construction of the barbed wire fence, and that the plaintiffs instituted this possessory action within a year of the disturbance. Therefore, we find that the plaintiffs have satisfied the requirements for bringing the possessory action; and, accordingly, we recognize the right of possession of the Plaisance group to the following described property situated in Lafourche Parish, Louisiana, within the West half (W l/i) of East half (E Vh) of Section 6, Township 20 South, Range 22 East, more particularly described as follows:

“TRACT I
“Beginning at the Northwest corner of Lot 1 of said Section 6, T20S-R22E, said corner being marked by a 21h" galvanized iron pipe set by J. A. Lovell, C.E., during the year 1938, the coordinates of which corner are X = 2, 341, 119.86' and Y = 260, 522.53';
“Thence South 1°25' East along the Western line of Lots 1 and 2 of said Section 6, for a distance of 1499.52 feet; “Thence South 87°23'10" West for a distance of 830.55 feet;
“Thence North 15°46'15" West for a distance of 1565.75 feet to a point on the North line of said Section 6;
“Thence North 88°35' East along the North line of said Section 6, for a distance of 1218.55 feet to the point of beginning;
“Said Tract I containing 35.509 acres, more or less, and is bounded on the North by the North line of said Section 6, on the East by the Western line of Lots 1 and 2 of said Section 6, and on the South and West by the property of La-Terre Co., Inc.”

The judgment of the District Court is affirmed in all respects, at costs of defendants-appellants.

AFFIRMED.

      “ ‘32. The defect of violence presupposes that the possession is acquired by active means. If the possession originates peacefully, it does not become defective if troubles related to it are caused by third persons; but there must be no natural interruption of the possession. . .’


source: Caselaw Access Project

author: LOTTINGER, Judge.

license: Public Domain

text:
    Carold ARVIE v. James BIERLEIN and United Services Automobile Association.
    No. 12361.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 21, 1978.
    Sanford Krasnoff, New Orleans, for petitioner and appellant.
    Kenneth V. Faherty, of Montgomery, Barnett, Brown & Read, New Orleans, for defendant and appellee.
    Before ELLIS, BLANCHE and LOT-TINGER, JJ.
   LOTTINGER, Judge.

This appeal was fixed for argument and all attorneys of record were notified. At the time scheduled for argument, the appellant was not present or represented, nor had any brief been filed on behalf of appellant, nor had any motion been filed for continuance.

On authority of Rule VII, Section 5(b), this Court, ex proprio motu, considers said appeal as abandoned; therefore, it is ordered that this appeal be dismissed with prejudice.

APPEAL DISMISSED.


author: SAMUEL, Judge.

text:
    Cheryl Rodriguez TUFARO, wife of/and Paul Tufaro v. METHODIST HOSPITAL, INC. et al.
    No. 9858.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 7, 1978.
    Ronald A. Welcker, Arabi, for plaintiffs-appellants-respondents.
    Lemle, Kelleher, Kohlmeyer & Matthews, David S. Kelly and William S. Penick, New Orleans, for defendants-appellees-movers.
    Before SAMUEL, GULOTTA and STOULIG, JJ.
   SAMUEL, Judge.

This matter is before us solely on a motion filed in this court by three defendants-appellees (Dr. A. T. Hunt, Blood Services of Texas, d/b/a Blood Services of New Orleans, and St. Paul Fire & Marine Insurance Company) to dismiss a devolutive appeal taken by the two plaintiffs. The motion is based on the alleged absence of the appeal bond required by Code of Civil Procedure Article 2087 prior to the effective date (January 1, 1978) of that article’s amendment by Act 174 of 1977. The appeal was taken and the appeal “bond” was furnished on December 20, 1977.

The appeal and the appeal bond were timely taken and furnished. However, the bond is signed only by the plaintiffs-appellants themselves. Movers state they do not object to the form, substance or sufficiency of the purported bond. Their only contention is that, because no other person or entity appears on the bond as surety, and because the appellants are already bound as principals, there is no surety whatsoever, the bond is no bond at all, and it is in fact a nullity. Therefore, movers further argue, the appeal has not been perfected and must be dismissed under the wording of former Article 2087, which requires that the appeal bond be taken “and the security therefor furnished” within the delays allowed for taking a devolutive appeal under the applicable Article 2087 and those delays have now elapsed. They rely primarily on Guilli-ot v. City of Kenner.

Plaintiffs-appellants argue that, as the plaintiffs-appellants are husband and wife, and particularly in view of Act 132 of 1926 (which provides that married women have the capacity to bind themselves as security for the benefit of their husbands or of the community) the bond furnished is sufficient because the wife has acted on her own behalf as an appellant and also as surety for her husband and the husband has acted on his own behalf as an appellant and also as surety for his wife.

The Guilliot case, upon which movers rely, does hold that, despite the provision of the here applicable Code of Civil Procedure Article 2088(5), under which provision the trial court retains jurisdiction for the purpose of hearing objections as to an appeal bond’s form, substance or sufficiency, the appellate court can dismiss the appeal when the appeal bond is in fact “nothing but blank unsigned paper”.

In this case the appeal bond is much more than “blank unsigned paper”; arguably, it is a valid bond. Therefore, we are without jurisdiction to consider movers’ objection to the bond. The trial court alone has that jurisdiction under the applicable Code of Civil Procedure Articles 2088(5), 5123, 5124, and 5126.

In reaching our conclusion we are mindful of Code of Civil Procedure Article 5125, which, in pertinent part, reads:

“No appeal, order, judgment, writ, mandate, or process conditioned on the furnishing of security may be dismissed, set aside, or dissolved on the ground that the bond furnished is insufficient or invalid unless the party who furnished it is afforded an opportunity to furnish a new or supplemental bond, as provided in Articles 5124 and 5126.” LSA-C.C.P. Art. 5125.

For the reasons assigned, the motion to dismiss is denied.

MOTION TO DISMISS DENIED FOR LACK OF JURISDICTION.

      . La.App., 326 So.2d 359.

      . LSA-C.C.P. Art. 2088(5), as amended by Act 4 of 1964, reads:
      “The jurisdiction of the trial court over all matters in the case reviewable under the appeal is divested, and that of the appellate court attaches, on the timely filing of the appeal bond, or if no bond is required, on the granting of the order of appeal. Thereafter, the trial court has no jurisdiction over these matters except to:
      (5) Test the solvency of the surety on the appeal bond as of the date of its filing or subsequently, consider objections to the form, substance, and sufficiency of the appeal bond, and permit the curing thereof, as provided in Articles 5123, 5124, and 5126;”


author: WALKER, Justice, for the Court:

text:
    Tommy TAYLOR v. MISSISSIPPI STATE PROBATION AND PAROLE BOARD et al.
    No. 50635.
    Supreme Court of Mississippi.
    Nov. 15, 1978.
    Rehearing Denied Jan. 10, 1979.
    Tommy Taylor, pro se.
    A. F. Summer, Atty. Gen. by Stephen J. Wright, Sp. Asst. Atty. Gen., Jackson, for appellees.
    Before ROBERTSON, WALKER and BROOM, JJ.
   WALKER, Justice, for the Court:

Taylor petitioned the Circuit Court of Sunflower County to issue a writ of certio-rari for review of retrospective application of parole eligibility criteria. The court without a hearing took all the allegations of the petition as true and held that under the facts presented, there was no violation of Article 1, Section 10 of the United States Constitution or Article 3, Section 16 of the Mississippi Constitution forbidding ex post facto laws. For those reasons, the court denied the petition.

The issues presented are:

(1) Is a change in administrative interpretation of state law the equivalent of a “change in the law” within the meaning of the ex post facto clause?

(2) If so, are administrative interpretations of parole laws part of the “law annexed to the crime?”

Taylor was convicted on two charges of rape, one charge of attempted rape, and was sentenced to two consecutive life sentences and a consecutive ten-year sentence. He entered Parchman in December 1964. At that time, Mississippi Code Annotated section 4004-03 (1942) controlled eligibility for parole consideration. That section provided in part:

Every prisoner who has been, . convicted of any offense . . . and is confined in the Mississippi State Penitentiary, for a definite term, or terms, of one year or over, or for the term of his or her natural life, whose record of conduct shows that such prisoner has observed the rules of said penitentiary, and who has served not less than one-third (%) of the total of such term or terms for which such prisoner was sentenced, or, if sentenced to serve a term or terms of thirty (30) years or more, or, if sentenced for the term of the natural life of such prisoner, has served not less than ten (10) years of such life sentence, may be released on parole as hereinafter provided . . . . Provided, however, that no one shall be eligible for parole until he shall have served one year of his sentence.

According to petitioner, the parole board interpreted the statute to mean that anyone serving a life sentence was eligible for parole in ten years and that multiple consecutive sentences made no difference in eligibility date. Under that interpretation, Taylor would have been eligible for parole in 1974. However, according to petitioner, subsequently, based on an opinion from the attorney general’s office, the board changed its interpretation of the statute. The board now interprets the statute to apply to each of the consecutive sentences. Thus petitioner is not eligible for parole for twenty-three and one-third years (ten years for each of the two life sentences and three and one-third years for the ten-year sentence). Taylor contends the change in interpretation as applied to him results in a violation of the ex post facto clauses. See United States Constitution, Article 1, section 10; Mississippi Constitution Article 3, section 16 (1890).

In Calder v. Bull, 3 U.S. (3 Dall.) 386, 1 L.Ed. 648 (1798), several types of ex post facto laws were defined. Among those was one that “change[s] the punishment for a crime, thereby inflicting greater punishment than was permitted by the law annexed to the crime when committed.”

I.

In the present case, the statutory law as it relates to the petitioner has not changed. The pertinent provisions of Mississippi Code Annotated section 4004-03 (1942) are presently embodied in Mississippi Code Annotated section 47-7-3 (1972). Only the administrative interpretation of the law has changed.

If the prior law required that a prisoner serve only the statutory mínimums, consecutive terms notwithstanding, and that law was changed by the legislature, such action would result in an ex post facto law when applied to Taylor. However, the statute clearly provides a prisoner may be considered for parole after serving “. . . one-third (Vs) of the total of such term or terms for which such prisoner was sentenced ... or, if sentenced for the term of the natural life of such prisoner has served not less than ten (10) years of such life sentence . . .” (Emphasis added). The statute, by speaking in terms of the “total of such term or terms” clearly carries with it the mandate that the terms, when imposed consecutively, should be added together to determine the time of eligibility consideration. Thus looking at the law in effect when Taylor committed the crimes, was convicted and sentenced, there was no law in existence to cause him to expect to serve less of his sentences than that provided by section 47-7-3. Under the present factual situation, we hold administrative correction of a prior misinterpretation of parole laws as applied to the appellant did not violate the ex post facto clause of the United States or Mississippi Constitutions. State v. Kiser, 26 Ariz.App. 106, 546 P.2d 831 (1976); Spence v. Page, 449 P.2d 717 (Okl.Cr.1969). Contra Love v. Fitzharris, 460 F.2d 382 (9th Cir. 1972), cert. granted and vacated as moot, 409 U.S. 1100, 93 S.Ct. 896, 34 L.Ed.2d 682 (1973).

II.

Assuming arguendo that correction of the former mistaken interpretation of parole law as applied to Taylor did reach the level of a “change in law,” nevertheless we hold that administrative decisions with regard to parole law eligibility are not such as are “annexed to the crime when committed” as required by Calder v. Bull, supra. Mississippi Code Annotated section 47-7-17 (Supp.1977) provides that “. . .it [parole] . . . shall not be considered to be a reduction of sentence or pardon.”

We, therefore, hold that administrative decisions of the parole board with regard to parole eligibility are not “laws annexed to the crime when committed.” For the above stated reasons, the judgment of the trial court is affirmed.

AFFIRMED.

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


text:
    In the Matter of the EXTENSION OF the BOUNDARIES OF HORN LAKE, Mississippi v. Will RENFRO et al.
    No. 50953.
    Supreme Court of Mississippi.
    Nov. 29, 1978.
    Rehearing Denied Jan. 10, 1979.

      Watkins, Pyle, Ludlam, Winter & Stennis, Jackson, Ronald L. Taylor, Southa-ven, L. Arnold Pyle, C. York Craig, Jr., Reynolds & Mockbee, Jackson, for appellant.
    Freeland & Gafford, T. H. Freeland, III, G. 0. Griffith, Jr., Joe D. Pegram, Oxford, for appellees.
    Before SMITH, P. J., and WALKER and BROOM, JJ.
   WALKER, Justice, for the Court:

This is an annexation ease. Horn Lake, city with approximately 4,300 in population within a 1,998 acre tract attempted to annex the Southaven Utility District which has a population of approximately 17,330 within an 8,595.5 acre tract. The Chancery Court of DeSoto County held that Horn Lake failed to prove that the annexation was reasonable. We agree.

The sole issue presented is whether the chancellor’s findings of fact were manifestly wrong or clearly against the overwhelming weight of the evidence. City of Biloxi v. Cawley, 332 So.2d 749 (Miss.1976); City of Picayune v. Quick & Grice, Inc., 238 Miss. 429, 117 So.2d 718 (1960).

Mississippi Code Annotated section 21-1-33 (1972) provides the law on annexation hearings:

If the chancellor finds from the evidence presented at such hearing that the proposed enlargement or contraction is reasonable and is required by the public convenience and necessity and, in the event of an enlargement of a municipality, that reasonable public and municipal services will be rendered in the annexed territory within a reasonable time, the chancellor shall enter a decree approving, ratifying and confirming the proposed enlargement or contraction, and describing the boundaries of the municipality as altered. In so doing the chancellor shall have the right and the power to modify the proposed enlargement or contraction by decreasing the territory to be included in or excluded from such municipality, as the case may be. If the chancellor shall find from the evidence that the proposed enlargement or contraction, as the case may be, is unreasonable and is not required by the public convenience and necessity, then he shall enter a decree denying such enlargement or contraction. In any event, the decree of the chancellor shall become effective after the passage of ten days from the date thereof or, in event an appeal is taken therefrom, within ten days from the final determination of such appeal. In any proceeding under this section the burden shall be upon the municipal authorities to show that the proposed enlargement or contraction is reasonable.

The other pertinent law is that part of Senate Bill 1520 (1967) [1967 Miss.Laws, Chap. 45 (Priv.L. Vol.)] which provides:

None of the territory lying within [the Southaven Utility District] shall be subject to annexation by any municipality, or incorporated within a municipality unless all of the territory of the District shall be so annexed or incorporated at one time, in which event the assets of the District shall be transferred to the municipality and the municipality shall assume the operation and maintenance of the facilities of the District, and shall assume all liabilities and obligations of the District.

The criteria to be applied in cases of this nature is well established. The general criteria has been established as: (1) The municipality’s need for expansion; (2) Whether the area sought to be annexed is reasonably within the path of growth of the city; (3) The potential health hazards from sewage and waste disposal in the annexed area; (4) The municipality’s financial ability to make the improvements and furnish municipal services promised. Lowe v. City of Jackson, 336 So.2d 490 (Miss.1976); Bridges v. City of Biloxi, 253 Miss. 812, 178 So.2d 683 (1965); Dodd v. City of Jackson, 238 Miss. 372, 118 So.2d 319 (1960).

Other factors that have been considered by the Court are: (5) The need for zoning and overall planning in the area; (6) The need for municipal services in the area sought to be annexed. Smith v. City of Meridian, 237 Miss. 486, 115 So.2d 323 (1959); (7) Whether there are natural barriers between the city and the proposed annexation area; and (8) The past performance and time element involved in the city’s provision of services to its present residents. City of Biloxi v. Cawley, 332 So.2d 749 (Miss.1976).

We have held that the burden of proving reasonableness as measured by these criteria is upon the petitioner, here, Horn Lake. Dodd v. City of Jackson, 238 Miss. 372, 118 So.2d 319 (1960).

The chancellor found that Horn Lake had not met its burden of proof. He went on to specifically find that Horn Lake had no existing need for expansion, that the Horn Lake Creek Flood Plain was a natural barrier between the areas, and that the area proposed to be annexed presently had adequate public services. There was sufficient evidence to support the chancellor’s findings and we cannot say the decision was manifestly wrong or clearly erroneous.

I.

The chancellor found that no need was shown for expansion of Horn Lake. Horn Lake presently encompasses 1998 acres. Thirty percent of that is neither platted nor subdivided, forty percent is undeveloped, and of the land which is platted or subdivided, fifty percent is undeveloped. The major population center of Horn Lake is the DeSoto Village Subdivision. This subdivision contains 1082 dwellings, of which 132 were vacant or abandoned at the time of trial. Further, no building permits were issued in 1975 or 1976. Horn Lake’s expert witness testified that the present area could accommodate a population of 18,000 and predicted that the population of Horn Lake by 1996 would be only 13,800. Nor was there any proof of substantial economic activity or of industries planning to locate in Horn Lake. Based on the evidence, we cannot say the chancellor erred in finding there was no need for expansion.

II.

The court found that the Horn Lake Creek Flood Plain forms a natural barrier between the city and the area proposed to be annexed. Both parties testified to the existence of the Flood Plain between the areas, and the maps introduced clearly reflect it lies between the two areas. There is also uncontradicted testimony that the area at present is unsuitable for building and, absent large expenditures of funds would not be developed, or would be the last area to be developed. The natural barrier is not such a serious barrier as would in itself bar annexat'on, nevertheless it is a factor to be considered. It should also be noted that the barrier has an effect on the growing pattern of the area, e. g., the proof reflected that Horn Lake and Southaven are expanding parallel to each other, rather than toward each other. Based upon this evidence, the chancellor did not err in finding the existence of the Flood Plain to be a natural barrier and in considering it along with the other proof as militating against annexation.

III.

The chancellor found that the area to be annexed enjoyed reasonable public services. While opinions as to the services were conflicting, certain data was uncontra-dicted. The Southaven Utility District had a higher rating on fire protection than that of Horn Lake. Water and sewage services were essentially the same. Road building and maintenance of roads in Southaven comes under the county government. The evidence showed that the county had more and better equipment for such services than the City of Horn Lake, and that the roads were at least as well maintained as those within Horn Lake. The ambulance service which covers the areas is the same. As far as police protection, there was evidence that the county sheriff felt he needed more money to provide better services; however, he admitted that a county supervisor testified that a request for additional funds had never been turned down. The testimony also showed that parks and recreational facilities in the Southaven area were equivalent to those in the Horn Lake area.

Other services, such as a public library, pest control and garbage pickup are provided by the county, and appear to be adequate. While much of the area utilizes private garbage pickup, a supervisor testified there had been no requests for the county to implement a broader public pickup service.

The chancellor found that Horn’ Lake failed to prove a need for expanding its present limits; that because of a natural barrier and normal expansion trend, the two areas are growing parallel rather than towards each other; and that the area to be annexed already enjoyed adequate planning and public services. There was substantial proof upon which to make such findings, and we are unable to say that the chancellor erred in holding that the petitioner, Horn Lake, failed to meet the requisite burden of proof.

For the above reasons, the judgment of the lower court dismissing appellant’s annexation petition is affirmed.

AFFIRMED.

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

COFER, J., took no part.

      . Appellant asserts and we agree the chancellor’s finding that the population of Horn Lake had decreased was erroneous. Nevertheless, the increase was insignificant and that error alone would not change the result. We also note that while the population increased slightly, the number of occupied dwellings in Horn Lake decreased over the time in question.

      . We note that Horn Lake itself was only recently incorporated, obtaining its charter in 1973.


text:
    EMPLOYERS MUTUAL LIABILITY INSURANCE COMPANY OF WISCONSIN and Presto Manufacturing Company v. Isiah JOHNSON.
    No. 50780.
    Supreme Court of Mississippi.
    Nov. 29, 1978.
    Rehearing Denied Jan. 10, 1979.
    McCoy & Wilkins, Joseph L. McCoy, Jackson, for appellant.

      James A. Phyfer, Jackson, for appellee.

    Before ROBERTSON, P. J., and LEE and COFER, JJ.
   Appeal from Circuit Court, Hinds County; Russel D. Moore, Judge.

Affirmed.


text:
    Jackie BEARD v. STATE of Mississippi.
    No. 50809.
    Supreme Court of Mississippi.
    Dec. 6, 1978.
    Rehearing Denied Jan. 10, 1979.
    Self, Jordan & Jones, Robert D. Jones, Meridian, for appellant.
   Appeal from Circuit Court, Clarke County; Lester F. Williamson, Judge.

A. F. Summer, Atty. Gen. by Marvin L. White, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.

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

AFFIRMED.

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


text:
    Kaiser RUNNELS v. Renee Domergue Temple Ritze RUNNELS.
    No. 50587.
    Supreme Court of Mississippi.
    Dec. 6, 1978.
    Rehearing Denied Jan. 10, 1979.
    Rex K. Jones, Hattiesburg, for appellant.
    Zachary & Gillespie, Frances T. Zachary, Jere R. Ramsay, Hattiesburg, for appellee.
   Appeal from Chancery Court, Forrest County; John M. Dunnam, Chancellor.

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

AFFIRMED.


author: BOWLING, Justice, for the Court:

text:
    Louise COX v. STATE of Mississippi.
    No. 50808.
    Supreme Court of Mississippi.
    Dec. 18, 1978.

      Farese, Farese & Farese, John B. Farese, Ashland, for appellant.
    A. F. Summer, Atty. Gen. by Marvin L. White, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before PATTERSON, SUGG and BOWLING, JJ.
   BOWLING, Justice, for the Court:

Appellant appeals from a conviction of murder and a life sentence by the Circuit Court of Tippah County. Three assignments of error were propounded, namely:

1. The trial court erred in failing to sequester the jury.

2. The trial court erred in not granting appellant’s motion for a directed verdict at the conclusion of the evidence for the reason that the state did not meet its burden of proof.

3. The trial court erred in refusing to grant appellant’s motion for a continuance.

The first assignment of error disposes of the appeal by requiring a reversal. The lower court erred in allowing the jury to disperse and go to their respective homes after adjournment of the court at the end of the first day of trial. As will be discussed later, we recognize the problem that the court had when that time arrived.

Prior to the start of the trial the lower court informed the jury that . .it will go into tomorrow, and I would like to ask a few additional questions on voir dire simply informing the jury that under the law, they will have to be sequestered, and probably will be two days, and if there’s anyone who would be in such a ... I would like to inquire of the jury, gentlemen, if the fact that they’re going to be sequestered overnight would affect them, and I will inform them, of course, that it’s the law that’s requiring that and not either side in this law case.

He further informed the panel that “I will state to you that as a matter of law, those of you selected to serve on the jury will have to be kept together as a group insofar as possible throughout the day, and if the case should go into tomorrow, you would have to be kept together overnight.”

Late in the afternoon of the first day of the trial, the defendant became ill and was carried to a local hospital. The court, in dispersing the jurors, stated: “I realize that there is case law requiring that a jury in this type of trial be sequestered; however, there are not sufficient rooms in the local motel. It would be most difficult, if not impossible, to arrange for transportation and sequestration of the jury, even in neighboring towns and cities, at this late hour.”

Because of this situation, the court permitted the jury to disperse to their homes until nine o’clock the following morning. Appellant’s counsel did not agree to the dispersal of the jurors. The following morning appellant’s counsel advised the court that he had received a call during the night regarding one of the jurors. It suffices to say that the court fully and adequately inquired of the jury as to any attempted influence and there was no indication that this occurred.

Appellee contends that the sequestration of a jury in a murder case where the maximum penalty is life imprisonment is not mandatory subsequent to the statutes separating the penalty under charges of murder as distinguished from capital murder. This question was settled in the case of Wilburn v. State, 356 So.2d 1173 (Miss.1978), and the Court fully discussed the legislative intent in the passage in 1974 of Mississippi Code Annotated section 1-3-4 (Supp.1978). This section provides:

The term “capital case,” “capital cases,” “capital offense,” “capital offenses,” and “capital crime” when used in any statute shall denote criminal cases, offenses and crimes punishable by death or imprisonment for life in the state penitentiary. The term “capital murder” when used in any statute shall denote criminal cases, offenses and crimes punishable by death, or imprisonment for life in the state penitentiary.

We held in Wilburn that the Legislature by enacting Code section 1-3-4 “intended to retain these safeguards in all cases where the maximum sentence is life imprisonment.” Although the Court, in Wilburn, was concerned with a statutory procedural safeguard, it is clear that the opinion intended to cover common law safeguards as heretofore announced by this Court. We said:

We are of the opinion the legislative intent was to draw a clear distinction between the present life imprisonment statute (previously permissive of either life imprisonment or death) and the death penalty statutes permitting only that punishment. We think the legislative purpose of the distinction was to eliminate the confusion that had arisen from “capital offenses” and similar terms existing in the statutes at the time of Fur-man [Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346] and presently remaining therein. Its intention was to preserve the criminal procedures formerly associated with the trial of serious criminal offenses where the permitted punishment was either life imprisonment or death, but which presently permit as the maximum only life imprisonment.

In Weaver v. State, 272 So.2d 636 (Miss. 1973), the Court said:

. Obviously, if this were a capital case, dispersal and separation of jurors would be reversible error even if permitted with the consent of the defendant.

The same pronouncement was made in Wilson v. State, 248 So.2d 802 (Miss.1971).

We reaffirm here the requirement that in a “capital case” where the crime charged is punishable by death or a maximum of imprisonment for life in the state penitentiary, the jury shall be sequestered during the entire trial and this right cannot be waived either by the attorney for the accused or at the discretion of the trial court.

For the benefit of the bench and bar, we believe it advisable to now go further and be sure that there is a full clarification of the jury sequestration question in a felony charge less than capital.

In the case of Grimsley v. State, 212 Miss. 229, 54 So.2d 277 (1951), the Court reaffirmed its pronouncement in Clark v. State, 209 Miss. 586, 48 So.2d 127 (1950), and said:

As to the dispersal of the jury, the defendant in a prosecution for a felony is entitled to have the jury kept together without exception from the time it is selected until fully discharged.

In Nash v. State, 207 So.2d 104 (Miss. 1968), the defendant was charged and convicted of manslaughter by culpable negligence in the operation of an automobile. On the afternoon of the first day of the trial, the court permitted the jurors to separate for the night and objection was made by appellant’s attorney, which was overruled by the court. In reversing the case for this reason alone, this Court said:

The next morning when court reconvened, the appellant moved for a mistrial because the jury had been permitted to disperse overnight. This motion was overruled. This same ground was alleged in the motion for a new trial, which was also overruled. Permitting the jury to disperse was reversible error. Carter v. State, 78 Miss. 348, 29 So. 148 (1900); Grimsley v. State, 212 Miss. 229, 54 So.2d 277 (1951).

The opinion in Nash does not state whether or not the matter of jury sequestration was considered and passed on by the court prior to trial or whether or not a request was made by defendant’s attorney prior to trial.

In Weaver v. State, supra, the Court, in rejecting an assignment of error that the jury was permitted to separate during the trial of a person charged with assault and battery with intent to kill, made it clear that there was no objection by defendant or his attorney to the non-sequestration of the jury. The attorney heard the court state to the jury prior to the beginning of the trial that it would not be sequestered.

The question of error in allowing the jury to separate in a felony less than capital was raised in Rogers v. State, 266 So.2d 10 (Miss.1972), and in Nicholson v. State, 254 So.2d 881 (Miss.1971). No reversible error was found there but it is clear that in both cases no request for sequestration or objection to dispersal was made at the trial.

For clarification, after a review of all the cases pertaining to the question, we hold that a person accused of a felony less than capital is entitled upon request to have the jury before whom he is being tried to be sequestered at all times during the trial. We hold that unless there is a request or an objection by the accused or his attorney, it is within the discretion of the court as to whether or not to sequester the jury. For further clarification, it is our opinion that the matter of sequestration of the jury should be determined and announced prior to the start of the trial. The attorney for the accused should not be required to request the sequestration or object to non-sequestration before the jury panel. It is a matter that should be decided and announced by the trial court out of the presence of the jury prior to the beginning of the trial. The attorney for the accused should be requested to advise the court as to whether or not he wishes the jury to be sequestered. If the attorney makes the request, then the trial court has no alternative but to sequester the jury. If the request is not made to do so and no objection is made prior to beginning the trial, then it is within the discretion of the trial court as to whether or not to sequester the jury.

REVERSED AND REMANDED.

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


author: LEE, Justice, for the Court:

text:
    Ersie Faye WALTON v. Betty J. SCOTT.
    No. 50768.
    Supreme Court of Mississippi.
    Dec. 13, 1978.

      Carnathan & Davidson, Douglas M. Wright, Tupelo, for appellant.
    Mitchell, McNutt, Bush, Lagrone & Sams, Fred M. Bush, Jr., Tupelo, for appellee.
    Before ROBERTSON, P. J., and LEE and COFER, JJ.
   LEE, Justice, for the Court:

Ersie Faye Walton filed suit in the Circuit Court of Lee County against Betty J. Scott for personal injuries sustained in an automobile collision. The trial court directed a verdict in favor of Walton on the issue of liability (the defendant rested at the end of the plaintiffs case) and submitted to the jury the issue of damages. The jury returned a verdict in favor of the plaintiff for twenty-six thousand dollars ($26,000). On motion for a new trial and remittitur, the trial judge ordered a remittitur in the sum of twelve thousand three hundred dollars ($12,300), reducing the verdict and judgment to thirteen thousand seven hundred dollars ($13,700), or new trial on the issue of damages. From such action of the lower court, the plaintiff appeals.

There is no cross-appeal, and the only question involved here is whether or not the trial judge abused his discretion in entering the remittitur.

On April 28, 1976, appellant was driving her automobile through an intersection in obedience to a green signal light. Appellee entered the intersection on a red signal light and collided her automobile with the right rear of appellant’s vehicle. Appellant thought she was not hurt, but when she arrived home, she had to rest; her hands, knees and shoulders were hurting her. The next day she went to her family doctor because of the pain, and received medication. On May 6, she was hospitalized in the Itawamba County Hospital for approximately one month.

Appellant did not improve, she saw another physician without improvement, and on September 9, 1976, she went to see Dr. Earl E. Whitwell, an orthopedic surgeon, who hospitalized her and conducted a series of tests. He discovered that appellant had rheumatoid arthritis, and prescribed Tolec-tin pills for her, which improved her condition. At the time she was seen by Dr. Whitwell, appellant’s knees were swollen; she could hardly stand without help. Within five (5) days appellant could move about, and she was discharged September 26. It was Dr. Whitwell’s opinion that, although the rheumatoid arthritis was dormant and was not a result of the trauma, the injuries sustained in the collision caused the condition to light up and activated same.

Appellant was forty-nine (49) years of age. She had never had rheumatoid arthritis or any other such illness prior to the collision. Dr. Whitwell stated that such condition usually developed in the twenty-five (25) to thirty-five (35) year age group and indicated that, since appellant had passed that age group, she may not have had an onset of the disease without the trauma.

The rule for determining whether a jury verdict is excessive or inadequate is stated in Biloxi Electric Co. v. Thorn, 264 So.2d 404 (Miss.1972), where the Court [citing from 22 Am.Jur.2d Damages § 366] stated:

“The damages, therefore, must be so excessive as to strike mankind, at first blush, as being, beyond all measure, unreasonable, and outrageous, and such as manifestly show the jury to have been actuated by passion, partiality, prejudice, or corruption. In short, the damages must be flagrantly outrageous and extravagant, or the court cannot undertake to draw the line; for they have no standard by which to ascertain the excess.” 264 So.2d at 405.

In Standard Products, Inc. v. Patterson, 317 So.2d 376 (Miss.1975), the Court reiterated the rule as follows:

“This means that the trial court should determine, before allowing an additur to a jury verdict for damages, that the jury verdict was so inadequate under the facts in the case as to strike mankind, at first blush, as being beyond all measure, unreasonable and outrageous and such as to manifestly show the jury to have been actuated by passion, partiality, prejudice or corruption.” 317 So.2d at 379.

Mississippi Code Annotated Section 11-1-55 (1972) authorizes the trial judge, upon motion for additur or remittitur, to modify the jury verdict (1) if the trial judge finds that bias, passion or prejudice influenced the verdict, and (2) the damages awarded are against the overwhelming weight of the credible evidence. See Standard Products, Inc. v. Patterson, supra.

Whether or not the jury verdict evinces such bias, passion or prejudice on the jury’s part as to shock the conscience is the test to be applied in determining the excessiveness or inadequacy of a verdict. James Reeves Contractor, Inc. v. Chain, 343 So.2d 1229 (Miss.1977).

In Kincade & Loftin v. Stevens, 50 So.2d 587 (Miss.1951), the Court held that the evidence of such feelings on the part of the jury is an inference drawn from contrasting the amount of a verdict with the amount of the damage.

When this Court reviews the action of a jury after the trial court refuses or grants a new trial on damages alone, the question is whether the verdict evinces bias, passion and prejudice on the part of the jury. In reviewing the action of the trial judge who enters an additur or remittitur on motion for a new trial, the Court looks to whether or not the trial judge manifestly abused his discretion in so doing. Dorris v. Carr, 330 So.2d 872 (Miss.1976). However, in determining whether or not the trial judge abused his discretion it is necessary for this Court to look beyond his action and apply the rule stated in Biloxi Electric Co. v. Thorn, supra; Standard Products, Inc. v. Patterson, supra; and other cited cases on the question.

The undisputed evidence indicates that appellant suffered a great deal of pain, and was suffering pain at the time of trial; she incurred four thousand one hundred thirty-two dollars fifty cents ($4,132.50) in medical bills; she lost wages of one hundred fifty dollars ($150.00) per week; and she was unable to continue work. We take judicial notice of the fact that she had a life expectancy of twenty-eight (28) years. Harris v. Pounds, 185 Miss. 688, 187 So. 891 (1939); Tucker v. Gurley, 179 Miss. 412, 176 So. 279 (1937). Computing loss of wage-earning capacity to age sixty-five (65) would amount to one hundred twenty-four thousand eight hundred dollars ($124,800).

With the damages outlined above, we are of the opinion that the verdict of $26,000 was not excessive to the extent that it evinced bias, passion and prejudice on the jury’s part, or so large as to shock one’s conscience, when contrasted with said damages, and damages awarded were not contrary to the overwhelming weight of the credible evidence. We are of the opinion that it is manifest the trial judge abused his discretion in entering the remittitur on motion for a new trial, and the judgment of the trial court is reversed, the verdict of the jury is reinstated, and judgment is entered here in the sum of $26,000.

REVERSED AND RENDERED.

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