text:
    Frank SAVOY, Plaintiff-Appellant, v. ACTION PRODUCTS CO., INC., et al., Defendants-Appellees.
    No. 6067.
    Court of Appeal of Louisiana, Third Circuit.
    June 30, 1977.

      Privat & Regan by Thomas K. Regan, Crowley, for plaintiff-appellant.
    Vidrine & Wimberley by J. Lee Wimber-ley, Jr., Church Point, Davidson, Meaux, Sonnier & Roy by Richard C. Meaux, Lafayette, for defendants-appellees.
    Before HOOD, FORET and HEARD, JJ.
   HEARD, Judge.

This is an action for damages for personal injuries sustained by plaintiff when a chair in which he was sitting gave way in the cafe operated by Mable Lyons Higginbot-ham. Suit was instituted by Frank Savoy against Action Products Company, later corrected to be Alladin Plastics, Inc., Josephine Heinen Daigle, Albert T. Daigle, Alfred J. Daigle and Janet Daigle, owners of the building, and their insurer, Sentry Insurance Company, and Hilton Commercial Refrigeration, Inc. On motion for summary judgment the owners of the building were' dismissed and prior to trial, Hilton Commercial Refrigeration and Sentry Insurance Company were voluntarily dismissed, leaving only Alladin Plastics, Inc. and Mable Lyons Higginbotham as parties-defendant.

On trial of the case, the defendant Mable Lyons Higginbotham was not represented by counsel and judgment was rendered against her by default. Plaintiff’s action against Alladin Plastics was dismissed.

Plaintiff appeals the judgment of the trial court asking for an increase in quantum. Defendant Mable Lyons Higginbotham answered the appeal asking that the judgment against her be reversed.

The plaintiff, Frank Savoy, entered People’s Cafe in Church Point on July 27, 1974, at about one o’clock A.M. He proceeded to a table with officers Lee V. Daigle and Wilbur Comeaux. At that time plaintiff weighed 365 pounds and as he sat down in a chair, it collapsed, causing plaintiff to fall to the floor injuring his back.

The chair in question was an orange bucket seat plastic chair manufactured by Alladin to be used as patio furniture. Mrs. Higginbotham had purchased the chair eight years before for $5.95, from Hilton’s Commercial Refrigeration. It had been assembled at Hilton’s Commercial Refrigeration pursuant to instructions issued by Alla-din Plastics at the time of purchase from that company. Evidence disclosed that since the purchase by Mable Higginbotham it had been damaged in a fight in the cafe and had lost a leg which had been rewelded. However, it wasn’t this leg that gave way under the weight of the plaintiff.

Plaintiff introduced expert testimony to the effect that the chair was of unsafe design; however, the testimony was based on the assumption that the chair had been assembled properly. The expert, Dr. Falg-out, also stated that he had now known the chair had been welded, nor used in a fight, and that that might have been instrumental in causing the accident.

The trial court found that the manufacturer could not be held liable for the accident. He did find that the operator of the cafe was negligent, and awarded plaintiff one thousand and no/100 ($1,000.00) dollars in damages against plaintiff.

Appellant contends the following: (1) The trial court erred in failing to accept the testimony of the expert witness; (2) the trial court erred in finding that the manufacturer was free of negligence in the design and use of inappropriate construction material for the chair; (3) the trial court erred in not applying the doctrine of strict liability to the manufacturer; (4) the trial court erred in failing to award special damages; (5) the trial court erred in failing to award an expert witness fee to plaintiff’s expert witness; and, (6) the trial court erred in awarding insufficient damages to the plaintiff.

The weight to be given expert testimony is largely dependent upon the qualification of the experts and the facts upon which their opinions are based, Middle Tennessee Council, Inc., Boy Scouts of America v. Ford, 274 So.2d 173 (La.1973). In this case, the expert witness admitted that he had not known the chair had been welded, or used in a fight, and that that might have been the cause of the accident. Thus, it was within the discretion of the trial court to reject this testimony as to the design of the chair.

The products liability law in Louisiana was set out by the Louisiana Supreme Court as follows:

“A manufacturer of a product which involves a risk of injury to the user is liable to any person, who without fault on his part, sustains an injury caused by a defect in the design, composition, or manufacture of the article if the injury might reasonably have been anticipated. However, the plaintiff claiming injury has the burden of proving that the product was defective, i.e., unreasonably dangerous to normal use, and that plaintiff’s injuries were caused by reason of the defect. . If the product is proven defective by reason of its hazard to normal use, the plaintiff need not prove any particular negligence by the maker in its manufacture or processing; for the manufacturer is presumed to know of the vices in the things he makes, whether or not he has actual knowledge of them.” (Emphasis added; cites omitted) Weber v. Fidelity & Casualty Insurance Co. of New York, 259 La. 599, 250 So.2d 754 (1971).

The plaintiff has failed to carry his burden of proof in that he did not prove that his injury was caused by reasons of a defect in the design or manufacture of the chair. Assuming arguendo that the design was defective, the fact that the chair had been broken and rewelded prior to this accident removes the assumption that the design defect was the cause of the collapse. Thus, the manufacturer cannot be held under the doctrine set forth in Weber.

Defendants, Mable Lyons Higginbotham, answered this appeal and asks that the judgment against her be reversed. She argues, first, that she is not the proper defendant in this action, as she is not a “public merchant” under Civil Code art. 131, nor was she directly negligent.

If defendant is a public merchant, she is the proper party to be sued. However, no showing was made that she was a public merchant; the only testimony being that she and her husband ran the cafe. If the cafe is a community venture, which it would seem it is, then the proper party to sue would have been defendant’s husband, as head and master of the community. Without the husband being party to the suit, no valid judgment can be had. Travelers Insurance Co. v. Veal, 280 So.2d 285 (La.App. 3rd Cir. 1973).

The only way defendant can be held personally liable is to show she breached a personal duty to the plaintiff and thus caused his accident. No such showing was made. The duty owed to plaintiff of a safe seat was owed to him by the cafe, which is a community venture.

For the foregoing reasons, the judgment of the trial court is affirmed, dismissing the demands against Alladin Plastics, Inc., and reversed as to Mrs. Mable Higginbotham. All costs of this appeal are to be paid by plaintiff-appellant.

AFFIRMED IN PART: REVERSED IN PART.


source: Caselaw Access Project

author: LEMMON, Judge.

license: Public Domain

text:
    Ruth S. DaROCA v. ST. BERNARD GENERAL HOSPITAL and its staff, Dr. Emile A. Bertucci, Dr. Hewitte A. Thian, Dr. Ernest J. Delahaye, Dr. Robert E. Mayfield, Professional Insurance Company of New York and St. Paul Fire and Marine Insurance Company.
    No. 7828.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 30, 1977.
    George P. Vedros, Gretna, for plaintiff - appellee and appellant.
    Dale, Owen, Richardson, Taylor & Matthews, Carey J. Guglielmo, Baton Rouge, for St. Bernard General Hospital, defendant-appellant and appellee, Dr. Hewitte A. Thian and Dr. Emile Bertucci, Jr., defendants-appellees.
    Lemle, Kelleher, Kohlmeyer & Matthew, William S. Penick, New Orleans, for Dr. Ernest J. Delahaye, Dr. Robert E. Mayfield, and St. Paul Fire & Marine Ins. Co., defendants-appellees.
    Before LEMMON, STOULIG and SCHOTT, JJ.
   LEMMON, Judge.

In this medical malpractice case St. Bernard General Hospital has appealed from a judgment following a jury verdict, which awarded plaintiff damages for loss of hearing as a result of a drug reaction. In answering special interrogatories, the jury found that the hospital and the four named doctors were negligent, but further found that the doctors’ negligence did not cause plaintiff’s damages. Plaintiff has also appealed, questioning the dismissal of the doctors.

The critical issues on appeal are (1) whether an excessive dosage of neomycin, a drug with possible toxic effects on auditory function, was prescribed and administered in postoperative treatment after a colon resection and (2) whether excessive dosage of neomycin caused the loss of hearing.

I

By proctoscopic examination of plaintiff, one doctor of the three-member St. Bernard Medical Group found a pre-malignant growth six to eight inches inside the colon and called in Dr. Hewitt Thian as a surgical consultant. When Dr. Thian recommended surgery, plaintiff expressed a strong desire to avoid a colostomy unless absolutely necessary. Because colon resection (removal of a section of bowel and union of the two ends, as opposed to rerouting by colostomy) involved unavoidable leakage of fecal matter in the peritoneal cavity and consequent danger of peritonitis, Dr. Thian ordered that neomycin be administered orally for bowel preparation prior to the surgery.

Dr. Thian performed the surgery on July 28,1972 and fortunately was able to avoid a colostomy. He then ordered that neomycin solution be instilled periodically into a catheter leading to the site of the anastomosis (surgical union of the bowel), with a drain tube leading from the same site. Three grams of neomycin were accordingly administered daily over the next four days (through July 31). During that period there was no sign of infection, and tests indicated plaintiff’s kidneys functioned normally.

Eight days after the neomycin was stopped, however, plaintiff’s wound opened during a coughing spell, and Dr. Thian performed a secondary closure as an emergency procedure. Plaintiff thereafter developed peritonitis and became critically ill, whereupon her family transferred her to another hospital with an intensive care unit. After extensive treatment and medication, including two other ototoxic drugs, she completely recovered except for an almost total loss of hearing.

This suit seeks damages for that loss on the basis that the prescribed dosage exceeded the recommended maximum for intra-peritoneal instillation.

II

A physician has a duty not to prescribe a higher dosage of a dangerous drug than is reasonably necessary to control the patient’s condition under the circumstances. The pertinent inquiry in this case is whether the prescribed dosage was reasonably necessary.

All witnesses agreed that peritonitis was the primary concern as a surgical complication, especially in a lower anterior resection of the colon, and that the broad-spectrum antibiotic, neomycin, was the drug of choice to control peritonitis, which it in fact did. Furthermore, there was general agreement that increased dosage, while more effective in preventing infection, also increased the risk of ototoxicity, although an effect on hearing could occur with small doses.

To prove the dosage was higher than reasonably necessary, plaintiff presented an expert pharmacologist and excerpts from three recognized reference books. The pharmacologist testified that for prophylactic use he would have started with the recommended maximum dosage of one gram per day (which he opined was generally enough to prevent infection) and would have increased the dose if infection developed. He admitted, however, that peritonitis is a serious and dangerous condition which is difficult to control and that it is easier to prevent an infection than to cure an infection which has already developed.

Two of the reference books did not list the recommended dosage for intraperito-neal instillation. The third contained the following statement:

“For intraperitoneal instillation a 0.5 to 1 percent solution of neomycin in sterile water or normal saline is used. For adults, no more than 100 ml. of solution or 1 Gm. of antibiotic should be instilled per day for 1 to 3 days. The 3-day limit on duration of dosage must not be exceeded.”

Dr. Thian testified that he was aware of the recommended dosage, but defended the dosage he prescribed on two bases. First, he asserted that the reference books were merely guidelines intended to assist physicians in exercising medical judgment in given circumstances. Second, he contended that he used an “irrigation dosage” which did not really exceed the recommended maximum, since a major portion of the drug, used as a lavage in this area (which is not an open space, but is filled with intestines), runs out through the drain and is not absorbed.

An expert surgeon corroborated this view, differentiating as to the latter concept between this method of irrigation, in which a drain is used and perhaps 80% of the drug runs out through the drain, and a method in which no drain is used and the skin is closed over the wound after instillation of the catheter. Stating that he would have used “a lot more” as long as renal function was normal, the surgeon emphasized that the method of irrigation and the drug dosage are matters of surgical judgment under the circumstances (a view also conceded by plaintiffs pharmacologist). He further testified that he had used neo-mycin in surgery about 2,000 times over 12 years without one case of hearing loss. And a specialist in colon-rectal surgery with 40 years of experience confirmed that oto-toxic reaction to neomycin was extremely rare.

Ill

The jury verdict as to the doctors, finding negligence without causation, is puzzling. Nevertheless, we do not reach the question of how much weight to accord the arguably inconsistent verdict, since we find the evidence does not support a conclusion that medical malpractice occurred.

The risk of peritonitis (with the attendant high fatality rate in cases of generalized peritonitis) from this particular serious and difficult surgery was very high, while the risk of toxic effects on auditory function was very minimal. The surgeon (especially when heeding the patient’s solicitation to avoid a colostomy) was called upon to balance antibacterial benefits against pharmacological risk. The record does not establish that, in doing so, he violated prevailng medical standards. This is not to say that a surgeon can recklessly disregard potential dangers from drugs when the risk is slight; rather, a surgeon in prescribing any drug must exercise reasonable discretion in consideration of all relevant factors. Plaintiff has simply failed to prove that reasonable discretion was not exercised in this case.

Accordingly, the judgment is reversed, and it is now ordered that plaintiff’s suit be dismissed. Each party is to bear its own costs.

REVERSED AND RENDERED.

      . It is undisputed that neomycin was properly used for preoperative care, since it sterilizes the intestine but is not absorbed in significant amounts in the blood stream.

      . Since normally functioning kidneys eliminate drugs by excretion, the drug level will build up if renal function is impaired.

      . Only one expert (the pharmacologist, who was not a surgeon) opined that less than 50% of the drug would come out through the drain, and he stated the amount would depend upon the type, location and length of the tube.

      . Renal function was normal until the wound eviscerated on August 8.

      .This portion of the verdict is perhaps attributable to a notion that the surgeon was negligent in exceeding the recommended dosage, but that the deafness (which the doctors claim was not reported to them during plaintiff’s stay at St. Bernard and which plaintiff admitted not knowing when it began) was more probably caused by drugs at the second hospital after non-negligent occurrence of the evisceration.


author: SAMUEL, Chief Judge. REDMANN, Judge,

text:
    BOHN FORD, INC. v. Betty K. LANZA.
    No. 7952.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 30, 1977.

      Alma L. Chasez, New Orleans, for plaintiff-appellant.
    Before SAMUEL, REDMANN and LEM-MON, JJ.
   SAMUEL, Chief Judge.

This is a suit for $259.59 on an open account for transmission repairs made to defendant’s automobile. The defendant answered, admitting the repairs had been made but averring they had “failed to correct the transmission problem”. Following trial, there was judgment in favor of the defendant, dismissing plaintiff’s suit. Plaintiff has appealed.

Defendant had purchased the used car from the plaintiff. Shortly after the 90 day warranty period and after the vehicle had been driven an additional 5,807 miles following purchase, the vehicle was returned to the plaintiff with complaints regarding the transmission. As a result of a test drive, plaintiff found the transmission hesitated and serviced the valve body, adjusted the bands, changed the transmission oil and put in a new rear grease seal. The charge for this work was $48.52, and defendant issued her check to plaintiff in that amount. However, defendant stopped payment on the check. She returned the car approximately one week after the repair work had been done, complaining that the transmission was still giving trouble. Plaintiff then completely dismantled and overhauled the transmission, for which work defendant was billed $211.07. Defendant paid that amount, but subsequently also stopped payment on that check.

Plaintiff’s mechanic, a specialist in transmission repairs, testified he had made the second repairs and that following a test drive he had found the car was operating satisfactorily.

The plea that the repairs were defective or unsatisfactory is an affirmative defense and our settled jurisprudence is that a litigant so pleading bears the burden of proving that defense by a preponderance of the evidence.

In this case the only evidence in the record relative to the affirmative defense is the testimony of the defendant herself. She stated: The car was in worse shape when returned after the first repair and still in bad shape after the second; it continued to have rattling noises in the motor, bucked and “didn’t run right”. After the second occasion she brought the vehicle to her own mechanic who did the necessary repair work. However, she admitted she did not know what kind of repair work he had done. She was not a mechanic and had not driven the vehicle in suit at all; the driving of that car was done by other members of her family.

Under these facts and circumstances, we must conclude defendant has failed to carry her burden of proving her affirmative defense. Accordingly, we reverse insofar as the second charge of $211.07 is concerned.

For the reasons assigned, the judgment appealed from is reversed and it is now ordered that there be judgment in favor of the plaintiff, Bohn Ford, Inc., and against the defendant, Betty K. Lanza, in the full sum of $211.07, together with legal interest thereon from date of judicial demand until paid. Costs in both courts are to be paid by the defendant.

REVERSED.

REDMANN, Judge,

dissenting.

Defendant took her one-year-old car (which she had bought in good condition from plaintiff 83 days earlier) to plaintiff on July 18, 1974 to have a “hesitating” transmission repaired. Plaintiff kept the car a week, returning it on, and being paid by check for $48.52 dated, July 25. On the next day, July 26, having meanwhile driven the car only 39 miles, defendant returned the car to plaintiff (and stopped payment on her $48.52 check) because, she testified, the car’s condition was worse than it was before being repaired. Plaintiff this time kept the car four days, returning it July 30, when defendant gave her check for $211.07, the amount of the second repair charge. But, plaintiff testified, the car’s condition was still not remedied. She therefore stopped payment on the $211.07 check and had the car repaired by another mechanic (at a cost excluded from evidence on plaintiff’s objection).

Plaintiff’s transmission mechanic testified he did not remember the car, but that he road-tested all cars he worked on and did not deliver any unless it was completely fixed. However, this car was not fixed the first time this witness repaired it, as proved by the fact that the very day after it was repaired it had to be repaired again by this witness. Moreover, this witness testified:

Q. After doing the work described on both of these two work orders, have you ever had transmissions of this type still require work shortly after this type of work that you did on this particular car?
A. I guess through the years. Any me-o chanic will have a certain amount of problems that come up on it. Yes, that’s also possible.

The trial judge reasoned:

Although the mechanic for the Plaintiff testified that tests were conducted after each repair, the testimony of the Defendant is conclusive and unrebutted that the repairs made on July 26,1974 also proved unsuccessful to remedy the mechanical defect. True, the Defendant could not describe in mechanical parlance the cause(s) of the problem(s) but considering the inexperience of most lay persons in this field, she did convey the idea that her car was still in the “same shape” after July 26, 1974. Her testimony has one inescapable conclusion: namely, that the two repair jobs failed to correct the mechanical problem(s) for which the Plaintiff seeks recovery [sic].
Under these circumstances, the Court concludes that the Plaintiff failed to prove its ease by a preponderance of the evidence and accordingly, the Plaintiff’s suit will be dismissed at the Plaintiff’s cost.

Canter v. Koehring Co., La.1973, 283 So.2d 716, 724, instructs:

When there is evidence before the trier of fact which, upon its reasonable evaluation of credibility, furnishes a reasonable fac-' tual basis for the trial court’s finding, on review the appellate court should not disturb this factual finding in the absence of manifest error.

      . LSA-C.C.P. Art. 1005; Crescent Cigarette Vending Corporation v. Toca, La.App., 271 So.2d 53; Automatique New Orleans, Inc. v. Capitano, La.App., 211 So.2d 757; Richmond Engineering Co. v. James F. O’Neil Co., La.App., 138 So.2d 627; Ray v. Martin, La.App., 117 So.2d 839.

      . Defendant’s mechanic was not called as a witness and the record is devoid of any evidence emanating from him.

      . Ray v. Martin, supra, note 1.


author:
SCHOTT, Judge. STOULIG, Judge,
      LEMMON, Judge,

text:
    Leotha Fields, wife of Frank P. GONDRELLA v. Frank P. GONDRELLA.
    No. 8135.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 30, 1977.
    Emile L. Turner, Jr., and David M. Packard, New Orleans, for plaintiff-appellee.
    Martin A. Welp, New Orleans, for defendant-appellant.
    Before REDMANN, SCHOTT, MORIAL, LEMMON and STOULIG, JJ.
   SCHOTT, Judge.

Following a divorce between these parties partition proceedings were conducted with the result that the community property was sold at public auction and the notary public filed a rule against the parties to show cause why his proces verbal should not be homologated. This would have divided the net proceeds remaining after payment of the costs of the partition proceedings and sheriff’s sale equally between the parties. Both parties contested the proposed distribution, Mr. Gondrella claimed a credit from the mass for $3,615 which he paid in alimony pendente lite between January 24, 1966, and the date of the final divorce and for $2,986 which he paid to the holder of the mortgage on the family home from January 24, 1966, until the mortgage was paid off. Mrs. Gondrella claimed that a personal injury settlement made by Mr. Gondrella for $4,878 in connection with an accident which occurred on April 5, 1967, fell into the community between the parties. She asked that this amount be treated as an offset against his claims.

At trial, pursuant to a stipulation between the parties, all of the net proceeds were divided between them with the exception of a sum totaling the three items raised by the parties. The trial court ordered that the sums paid by Mr. Gondrella on the mortgage and for alimony pendente lite be credited to him, and that the amount of the settlement be considered an asset of the community mass with the result that it would be divided equally between the parties. From this judgment both parties have appealed.

Mrs. Gondrella has, for the first time, raised an additional issue in this court. She claims that if Mr. Gondrella is entitled to a credit for payments on the mortgage this should be limited to the period commencing in December, 1966, when he first reconvened for a divorce and not commencing in January, 1966, when she initiated separation proceedings.

With respect to the alimony payments made by Mr. Gondrella, he is not entitled to reimbursement out of the community funds for this amount. He relies primarily on McElwee v. McElwee, 255 So.2d 883 (La.App. 2nd Cir. 1971) writs refused, 260 La. 861, 257 So.2d 434, in which the following was said:

“The trial judge held the obligation of the husband to maintain the wife during the marriage in the manner in which she had become accustomed, as recognized and enforced by La.Civ.Code Art. 148, should be discharged by community funds, if available. Although the jurisprudence on this subject is somewhat confusing, we are of the opinion the trial judge’s conclusion is correct under the holdings in the following cases: Cordaro v. Cordaro, 168 So.2d 886 (La.App. 2nd Cir. 1964); Messersmith v. Messersmith, 229 La. 495, 86 So.2d 169 (1956); White v. White, 159 La. 1065, 106 So. 567 (1925).”

While the McElwee case is distinguished on its facts from the instant case, we acknowledge that the rule as stated does support Mr. Gondrella’s position. However, in Palama v. Palama, 323 So.2d 823 (La.App. 4th Cir. 1975) writs refused, La., 326 So.2d 381, this court held that previous payments of alimony pendente lite do not form the basis for a credit to a husband from community funds.

LSA-C.C. Art. 148 provides for alimony pendente lite in favor of the wife where she has not a sufficient income for her maintenance as “a sum for her support, proportioned to her needs and to the means of her husband.” The article relates the amount of alimony to the circumstances of the parties while the payments are being made. It does not suggest that some debt is being created against the community and in favor of the husband if and when the community is dissolved by a subsequent judgment of separation or divorce. This is consistent with the jurisprudence which has considered the relationship among C.C. Arts. 148, 119 and 120.

Article 148 alimony provides for judicial enforcement of the husband’s obligation to support her under Arts. 119 and 120. These obligations result from the marriage itself and are not a mere appendage to separation and divorce proceedings. Cortes v. Fleming, 307 So.2d 611 (La.1973), Small v. Small, 173 So.2d 854 (La.App. 4th Cir. 1965). The obligations are not “debts” due by the spouses but are simply recognized legal duties to be enforced by the court by means of an alimony order. “A right to receive or demand support (or money, in order to afford support) is something other and different than a right to receive and be paid a technical legal debt.” State v. King, 49 La.Ann. 1503, 22 So. 887 (1897).

When Mr. Gondrella complied with the order of support the community had not yet been dissolved. Even though the effect of the judgment of divorce was to dissolve the community as of the date when he filed his reconventional demand for the divorce, this was “without prejudice ... to rights validly acquired in the interim between commencement of the action and recordation of the judgment.” C.C. Art. 155. It would be inconsistent with this article to charge Mrs. Gondrella’s interest in the community fund for the alimony payments made to her under Art. 148. See the article by Robert A. Pascal, XXIII La.F.R. 41 in which it is said that under Art. 155 “it would seem quite clear that alimony pen-dente lite no longer can be charged ‘to the community’ if a judgment of separation or divorce is rendered.”

We subscribe to our previous holding in Palama v. Palama, supra, and accordingly will reverse that portion of the trial court’s judgment which allowed Mr. Gondrella a credit against the community for the $3,615 he paid in alimony.

As to the payments made by Mr. Gondrella on the mortgage, however, a different result obtains. His payments were made from his separate funds and enhanced the community which was effectively dissolved (by the subsequent judgment of divorce) before the payments were made. There is no statutory, jurisprudential or logical basis for holding that Mrs. Gondrel-la’s half interest in the community funds which was directly enhanced as a result of his payments should not be charged for half of his payments. This is the effect of charging the mass of the community proceeds with the total paid by Mr. Gondrella and that portion of the judgment of the trial court is correct.

As to Mrs. Gondrella’s contention that this credit should be reduced by the amounts paid on the mortgage between January and December, 1966, we have already observed that this argument was raised for the first time in her brief to this court. The only evidence in the record is that a lump sum of $2,968 was paid on the mortgage from January, 1966, until the mortgage was paid off. There is no evidence as to exactly how much was paid until December, 1966, and we cannot accept the figures in Mrs. Gondrella’s brief as sufficient to establish her claim.

Finally, the trial judge erred in allowing Mrs. Gondrella to recover any part of the settlement funds received by Mr. Gondrella. His accident occurred on April 5, 1967, the judgment of divorce was signed in December, 1967, and he made the settlement in 1969. Pursuant to our opinion in Aime v. Hebert, 254 So.2d 299 (La.App. 4th Cir. 1971), the settlement amount is the separate property of Mr. Gondrella.

Accordingly, that portion of the judgment allowing a credit to Mr. Gondrella for $2,986.19 is affirmed. That portion of the judgment allowing him a credit for $3,615 is reversed. That portion of the judgment dividing the sum of $4,878.66 between Mr. and Mrs. Gondrella is reversed.

It is ordered that the $11,489.85 in the registry of the court be divided on the basis of $7,238.02 to Mr. Gondrella and $4,251.83 to Mrs. Gondrella.

AFFIRMED IN PART, REVERSED IN PART AND RENDERED.

STOULIG, Judge,

concurring.

The writer of this concurrence was added as a member to the original panel pursuant to Article 5, Section 8(B) of the Louisiana Constitution of 1974 to consider only the issue of the husband’s right to reimbursement out of the community funds all alimony pendente lite he paid to his wife.

I concur for the reasons stated and the result reached in the majority opinion in denying the husband the right to a credit against community funds for alimony pen-dente lite paid to his former wife.

REDMANN, Judge, subscribes to the opinion of Schott, J., except that, as to credit for alimony, he concurs for the reasons of Lemmon, J.

LEMMON, Judge,

concurs and assigns reasons.

I agree that credit for alimony pendente lite is not an appropriate consideration in this case.

A wife is entitled to alimony pendente lite if she does not have sufficient income for her maintenance. C.C. art. 148. Alimony was ordered in the present case because the wife received no income during the period between the filing of suit and the judgment of divorce.

However, if community assets had produced income during this period (income which the husband controlled as head and master and theoretically used to pay alimony to the wife who technically had no income), it would be unfair for the wife to receive both alimony during the pendency of the suit and also her entire share of the income for that period from the community assets when the community is settled. Therefore, if community assets had produced income in this case, the question of credit for alimony pendente lite against her share of income from community assets during this period would be appropriate for consideration.

This record, however, does not reveal that there was any income produced by community assets during the pertinent period. The fund at issue is the sum of $11,000.00 realized from the sale of the community home.

Furthermore, even if the wife’s share of the $11,000.00 community asset had been available to her during the period in which she sought alimony, she would not have been required to deplete that sum in order to maintain herself. Therefore, since the $11,000.00 does not constitute income which, if available to the wife, would have been deducted from her needs in determining her entitlement to alimony pendente lite, the husband is not entitled to a credit against the wife’s share of that sum for the amount of alimony pendente lite that he paid.


author: MORIAL, Judge. REDMANN, Judge,

text:
    Freddie M. NETTER, Individually and as Administrator of the Estate of his minor son, Eugene Netter v. NEW ORLEANS PUBLIC SERVICE, INC.
    No. 8258.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 30, 1977.

      George H. Jones, New Orleans, for plaintiff-appellee.
    Floyd F. Green, New Orleans, for defendant-appellant.
    Before REDMANN, STOULIG and MORIAL, JJ.
   MORIAL, Judge.

Freddie M. Netter instituted this suit, individually and as administrator of the estate of his minor son Eugene Netter, against New Orleans Public Service, Inc. (NOPSI) to recover the cost of medical expenses and damages for personal injuries sustained by the boy as a result of slipping in some vomitus on a NOPSI bus. The trial judge awarded judgment in favor of plaintiff in the amount of $726.47 in special damages and $3,500.00 for pain and suffering. Defendant appealed. Plaintiff answered the appeal asking for an increase in damages. We affirm.

Eugene Netter and a companion, Michael Gentry, boarded a NOPSI bus at Canal and Burgundy Streets on August 22, 1974 at approximately 11:00 A.M. The boys walked to the rear of the bus to be seated. Netter stated that he was watching where he was going but was not looking at the floor. As he was taking a seat he stepped into some vomitus on the floor between the two seats and slipped striking his left leg on the forward seat. He fell backward onto the seat striking his back and elbow. He suffered a muscular and ligamentous injury to his upper back, a contusion of the left elbow and an abrasion on his left leg. Netter informed the driver of the accident at the next stop. The driver drove the bus on and stopped at Elysian Fields to notify a dispatcher. A supervisor was sent out to investigate the accident.

The issue to be resolved is whether or not the foreign matter was present on the bus floor for such a period of time so as to justify a finding that the defendant’s employee knew or by the exercise of reasonable care should have known of its presence on the floor.

Defendant argues that the evidence reflects that its driver employed reasonable inspection procedures on the day of the accident and that the trial court erred in finding that defendant failed to meet its duty of care to plaintiff. Defendant also argues that plaintiff was contributorily negligent in failing to watch where he was walking.

Where an injury allegedly results from some foreign substance placed in the aisle or on the floor of the public conveyance by some third person the plaintiff must show that the foreign substance was present and that the defendant’s employee knew or, by the exercise of reasonable care and diligence, should have known of the presence of such foreign substance and failed to remove it. Jones v. Baton Rouge Electric Co., 192 So. 539 (La.App. 1 Cir. 1989). However, motor carriers owe their passengers the duty of furnishing for them sound and safe vehicles for their passage, and this requirement carries with it the obligation of using the highest degree of care in constantly and vigilantly inspecting them and seeing that they are kept in repair. A mere casual or superficial examination not capable of revealing the presence of discoverable defects is not an adequate inspection to discharge the carrier’s duty. Johnson v. Continental Southern Lines, Inc., 113 So.2d 114 (La.App. 2 Cir. 1959).

The testimony with regard to the length of time the substance was present on the floor was conflicting. Plaintiff testified that the substance which was located near the window almost under the seat in front of him was about six inches in diameter and in a dried up condition. • Michael Gentry who accompanied plaintiff stated that the substance looked hard. Frank White, Jr., the bus driver stated that the matter had to be freshly there because he made an inspection of the bus at the end of the last run and had found nothing out of line. He also stated that he had thoroughly checked the bus before pulling out of the barn at 5:00 A.M. and found everything to be in order. Fred Whittingham, the NOPSI supervisor who investigated the accident testified that he observed a spot of fresh vomitas under one of the seats in the rear of the bus.

In his reasons for judgment the trial judge stated that he found the testimony of the plaintiff and his witness Gentry to be more credible than that of the defendant’s witnesses. He found that the defendant’s employee failed to make an adequate inspection of his vehicle. Faced with irreconcilable testimony on this factual issue, we find that we must affirm the decision of the trial court. A trial judge’s finding of fact based on the credibility of witnesses is reversible only for manifest error and we find no such error. Walsh v. New Orleans Public Service, Inc., 323 So.2d 505 (La.App. 4 Cir. 1975).

Furthermore, we do not find any evidence of negligence on the part of plaintiff. The record shows that the vomitas was located almost under the seat in front of plaintiff’s seat. We do not believe plaintiff was negligent in not observing the matter in this location.

Plaintiff argues that the damages are insufficient in light of plaintiff’s injuries. Plaintiff saw Dr. Walter Barial, his family physician on August 23, 1974, the day following his accident. The doctor found some tenderness in the thoracic region and elbow area. The elbow was swollen. X-rays were taken and the results were negative. Plaintiff was given muscle relaxants and diathermy treatments. Dr. Barial last saw plaintiff on January 9, 1975 and plaintiff was still complaining of back pain. The doctor found no tenderness over the back nor in the elbow area at that time. The elbow was still somewhat swollen.

Plaintiff saw Dr. Roy Marrero, an orthopedic surgeon four times between September 19, 1974 and November 7, 1974. He discharged plaintiff on November 7 finding he had minimal elbow problems and that his thoracic problems were resolving themselves.

Dr. Gernon Brown, also an orthopedic surgeon saw plaintiff on April 14,1975. He found no objective evidence of injury or residual of injury.

Based on the above findings we find no abuse of the trial court’s discretion in awarding plaintiff $3,500.00 in general damages. Prattini v. Whorton, 326 So.2d 576 (La.App. 4 Cir. 1976); Thompson v. Russo, 328 So.2d 683 (La.App. 4 Cir. 1976).

For the foregoing reasons the judgment of the district court is affirmed.

AFFIRMED.

REDMANN, Judge,

dissenting in part.

The only objective evidence of injury that surgeon Dr. Barial found was “a small abrasion over . . . the upper third of the shin below the left knee” and “swelling over the lateral aspect of the left elbow”. (The swelling must have been minimal, since orthopedist Dr. Brown found none, although Dr. Barial said it continued to the time of trial.)

The award of $3,500 general damages is beyond the range of discretion of the trier of fact. The upper limit of that range approximates $1,000, to which we should reduce the award.


author: REDMANN, Judge.

text:
    Robert L. HIGGINS v. NEW ORLEANS PUBLIC SERVICE, INC.
    No. 8278.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 30, 1977.

      John R. Wellman, New Orleans, for plaintiff-appellee.
    James Maher, III, New Orleans, for defendant-appellant.
    Before REDMANN, STOULIG and MORIAL, JJ.
   REDMANN, Judge.

Defendant public transportation company appeals from a $1,320 judgment for plaintiff’s personal injury at the hands of one or more passengers on defendant’s omnibus. Plaintiff was 67 years old and weighed 155 pounds. He was physically beaten by one or three boys from a group of five or six who had been talking loudly but not threateningly for a few minutes prior to the beating. The boys all got off the bus through the rear door at the same time save one of them (according to plaintiff; three, according to the driver), who came up to the front of the bus where plaintiff was seated on the side-facing seat across from the driver, pummelled plaintiff and picked his pockets. Plaintiff estimated that boy’s weight at 175 or 180 pounds. ■

The driver testified that the beating took place in “a matter of seconds. Q. There was nothing you could do during this time? A. No. Q. It happened that fast? A. Yes.” Yet at another point, after saying “it happened real quick”, the driver estimated that from the time he stopped the bus, “you could say” the beating lasted 30 to 45 seconds. (Plaintiff estimated three or four minutes, although he also asserted that one being beaten “can’t tell” how long the attack lasts.) Again, when asked whether he could have prevented plaintiff’s injuries, the driver replied “No, because when it happened it happened so fast. Now, they hit him and he got up out of the seat and came over to me I was sitting behind that wheel. You be pinned in there with somebody sitting over you. The way I got up I picked him off me. By the time I got up it was over with.”

The driver’s testimony taken as a whole, despite his one reference to 30 to 45 seconds, is that the beating occurred so swiftly that there was no opportunity for him to do anything (in which case defendant would not be liable; Aime v. Hebert, La.App. 4 Cir. 1973, 282 So.2d 566).

Plaintiff’s testimony, on the other hand, despite its admitted uncertainty, is that the beating continued a long time — “at least two minutes.”

Even if the beating continued two minutes, the common carrier has no duty to insure its passengers against injury by other passengers, and we must therefore, to affirm liability, find some injury-causing breach of a duty imposed on the carrier to protect the passenger against the kind of risk which materialized. Laird v. Travelers Ins. Co., 263 La. 199, 267 So.2d 714 (1972).

Our first legal conclusion is that the carrier cannot be liable for the first blows that defendant suffered, which neither he nor the driver had any cause to anticipate. Aime, supra.

Our second legal conclusion is that the carrier is not liable for the blows that would occur during the time it would have taken the police to arrive after the driver had summoned them. We reason that the carrier does not, by its contract to transport safely, insure safe arrival (although it may have the burden of persuading that an injury was not the result of its negligence). The carrier is not obliged by its contract to provide armed guards, or even simply to hire only burly wrestlers or boxers as drivers; otherwise it could not hire slightly-built persons to drive its buses. Therefore the carrier cannot have the obligation to have its driver physically intervene in a beating. Thus even if a driver happens to be very strong, if he personally have some moral obligation arising out of his humanity to aid a weak person being beaten by a stronger one, the carrier does not have the obligation to intervene, but only to summon the police as speedily as possible.

If it be true that this driver allowed an unforeseeable beating to continue for “at least two minutes” without attempting to summon the police, that breach of obligation did not cause the later part of the beating because the police would not have arrived in time to stop the beating in any event.

Reversed; suit dismissed; each party to bear its own costs.


text:
    Orlando G. BENDANA v. MOSSY MOTORS, INC., et al.
    No. 8285.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 30, 1977.

      Orlando G. Bendana in pro. per.
    W. K. Christovich, Christovich & Kear-ney, New Orleans, for Mossy Motors, Inc.
    David L. Campbell, Lemle, Kelleher, Kohlmeyer & Matthews, New Orleans, for General Motors Corp.

      Before REDMANN, STOULIG and MORIAL, JJ.
   REDMANN, Judge.

Defendant General Motors Corporation appeals from a judgment for $4,817.54 for damages arising from plaintiff’s purchase and use of a 1967 Oldsmobile 98 automobile.

Defendant expressly warranted the engine for 50,000 miles or five years and the cooling system for 24,000 miles or two years. However, defendant obliged itself by its warranty only to repair, and not to pay consequential damages. A finding that defendant refused to honor its warranty might justify a judgment rescinding the sale for non-performance of a condition of the sale. However, the judgment appealed from awarded an amount greater than the price-equivalent plus damages attributable to dishonor of the warranty. Thus it was presumably based on the Louisiana implied warranty against hidden defects known to the seller, La. C.C. 2545, which authorizes recovery of all damages (even if only reduction of price is the basic remedy; see C.C. 2544).

Plaintiff experienced repeated serious breakdowns of his automobile after 18,-000 miles and 18 months of use. The first occurred at Salida, Colorado when the car, with plaintiff driving and two other adults, three 11-year-old children and two infants as passengers, was towing a 2,300-pound camping trailer. Plaintiff felt the car “hesitating” and “lurching” but continued to drive until it came to a halt. Considerable engine repair, requiring two and a half weeks, had to be done by the Salida Oldsmobile agency as a result of overheating. (Main bearings and others were replaced, as were both cylinder heads, the rings, a piston, some valves, etc.) Plaintiff rented a car to reach his family’s intended vacation site, Crested Butte, Colorado. The day his car was returned to him it broke down again at Gunnisen, 50 miles outside Salida on the way to Crested Butte, while it was neither loaded down with weight nor towing the trailer. The Oldsmobile agency at Gunnisen repaired the car, taking about a week (again replacing a head). The car again began to overheat about 50 miles outside of Gunnisen, and after leaving his trailer (to recover which he sent an employee with a truck), plaintiff drove to Dalhart, Texas, adding water to his radiator every 20 miles or so. The Oldsmobile agency at Dalhart undertook to repair the car, while plaintiff and his passengers (family and servant) returned to New Orleans by air. Plaintiff sent an employee to Dalhart by air to recover the car when it was ready a week later.

(At this time plaintiff demanded that General Motors afford him relief beyond repair of his car, including repayment of the added travel expenses he incurred. He then sued General Motors in the United States district court, but that suit was ultimately dismissed for want of jurisdictional amount.)

About nine months later, while plaintiff and a friend were on a trip to go canoeing (towing no trailer but with a canoe atop the car), the car again overheated and was taken to the Oldsmobile agency at Alexandria, Louisiana. General Motors informed the Oldsmobile agency that it would not pay for the necessary repairs, and the agency did nothing until plaintiff returned a week later and obtained a guarantee from counsel for General Motors that plaintiff (who is also a lawyer) would pay the cost of the repairs. Those last repairs again included replacing both heads.

Plaintiff thereafter instituted this suit for rescission of the sale and damages under Louisiana’s implied warranty law. However, he subsequently traded the car towards another.

The evidence establishes the existence of some defect which rendered the car’s “use so inconvenient and imperfect, that it must be supposed that the buyer would not have purchased it, had he known of the vice.” C.C. 2520.

The provisions in the documents delivered with plaintiff’s car attempting to limit warranty to the express warranty “have no effect upon the statutory warranty of fitness”; Media Prod. Consult. Inc. v. Mercedes-Benz N.A., Inc., 1972, 262 La. 80, 262 So.2d 377, 380. “Warranty limitation provisions in ‘Buyers’ Order’ documents and automobile service manuals have no effect on the implied warranty against hidden defects.” Prince v. Paretti Pontiac Co., Inc., La. 1973, 281 So.2d 112; 116.

General Motors argues that the car was not defective, but that plaintiff ruined the car by towing a low-medium-weight (2300 lb.) trailer without a heavy-duty cooling system, which its own literature “recommended” (“for unusually high temperatures, heavy traffic or hilly terrain”) for medium trailers (2000-3500 lbs.) and “required” for heavy trailers (3500-5000 lbs.). Apparently General Motors has succumbed to the saw that the best defense is an offense, for this defense is an offense against fairness. Had the literature advised that extra cooling is “required” for trailer-towing — although defendant never presented evidence to explain why — this defense would support discussion. But to “recommend” extra cooling for trailer-towing gives no hint that the engine will burn up without it. Nor was a trailer being towed on the second or fourth breakdown.

Furthermore, plaintiff and the friend (who happened to be driving at the last breakdown) both testified that the temperature light that is designed to warn of overheating never came on. Thus, assuming (because it was not proven) that a defect in the cooling system caused damage to the engine (rather than vice versa, an admitted likelihood), the engine had also to have some hidden defect in its temperature warning system.

Defendant also argues that plaintiff did not “prove that the vice existed before the sale was made to him” as C.C. 2530 requires. Civil proof need only establish a fact as more probable than not; Boudreaux v. American Ins. Co., 1972, 262 La. 721, 264 So.2d 621. Such proof has been made by showing that mechanical elements designed and warranted for 24,000 or 50,000 miles of use fail long before that use without any improper installation or maintenance; Moreno’s Inc. v. Lake Charles Cath. H.S., Inc., La. 1975, 315 So.2d 660. Defendant’s only suggestion was that the defective conditions could have been caused by trailer-towing in mountains in July without a heavy-duty cooling system. This suggestion, however, ignores the problem of the defect of non-function of the warning light. Otherwise it would invite a ruling on recission for lack of instructions; see Rey v. Cuccia, La. 1974, 298 So.2d 840, 844, n. 2; Malinvaud, Redhibitory Defects and Their Importance in Contemporary Society, 1976, 50 Tulane L.Rev. 517, 524-525.

We conclude that the trial court had sufficient evidence to support its conclusion that some defect existed in the engine or cooling system or both prior to the sale to plaintiff, and that the defect was within the definition of redhibitory defect.

Because defendant was unwilling to accept its return, plaintiff traded the car against a new one, receiving credit of $1,818. His redhibitory action must therefore become one quanti minoris for reduction of the price of the thing.

Quantum

The amount the trial judge awarded appears to allow all of the expenses plaintiff testified to except $180.60 (erroneously identified as a one-way ticket for an employee to get the car, when in fact it was a round-trip ticket for plaintiff himself, not shown to be related to the non-serviceability of the car) and probably another $36 (from an error in transposing a $237 repair into $273). The allowed expenses were thus $1,360.18.

Apparently, also, the trial judge calculated some return of the price, $5,603.36 (including financing costs), less the $1,818 which plaintiff got for the car when he traded it in, or $3,785.36. However, the total of $3,785.36 and the expense of $1,360.18 is $5,145.54, which is $328 more than the amount of the judgment. Although that $328 has no ready explanation, we note that the congruence of the 54-cent figures persuades us that the trial judge did base his calculation in part either on a return of purchase price or on the theory that the trade-in value of $1,818 was the worth of the car at the time of purchase (over two years and 26,000 miles earlier). This was error.

Return of price is the result of red-hibition; C.C 2531 and 2545. But because redhibition is the “avoidance of a sale”, C.C. 2520, it entails obliging the buyer to return the thing unless the thing “has perished through the badness of its quality”, C.C 2532, or its “loss was not occasioned by the fault of the purchaser”, C.C. 2536. Here the thing has neither perished nor been lost; it has been sold or exchanged. A buyer who has resold the thing cannot demand return, but only reduction, of the price, Brown v. Duplantier, La. 1823, 1 Mart. N.S. 312. Accordingly, plaintiff’s only remedy is for “a reduction of the price”, C.C. 2541 and 2543, an action “subject to the same rules as the redhibitory action”, C.C. 2544.

The question of how much the original sale price should be reduced is not directly related to the price obtained on resale. “Whether a vendor, who has a deceit practiced on him in the sale, gain or lose by the subsequent sale of the thing, his right to the action quanti minoris remains perfectly the same.” Brown v. Duplantier, supra, at 318.

An immediate resale to a knowledgeable and willing buyer informed of the defect might evidence the market value of the thing in its defective condition, but that is not our case. The trial judge had the task (formerly assigned by Digest of 1808, p. 356, art. 70, to “able men”) of estimating the amount of reduction. It is our function on appeal to decide whether his estimate was reasonable.

In estimating, the judge appropriately considers not only the cost of repairs but also “the numerous problems, the frequent inconvenience associated with breakdowns and repairs of these problems, and the overall poor performance in relation to that expected . . . ”, Menville v. Stephen Chevrolet, Inc., La.App. 4 Cir. 1974, 300 So.2d 858, writ refused, La., 303 So.2d 186. Expenses due to breakdowns were $1,360.18. Thus the judgment for $4,817.54 had to include a price reduction of $3,457.36 (unless it included general damages, which are impermissible; Meador v. Toyota of Jefferson, Inc., La. 1976, 332 So.2d 433). $3,457.36 is a facially excessive reduction since the car only cost $5,172.68 (excluding finance charges etc.).

We estimate that a reasonably knowledgeable buyer, informed of the defects and their consequences, would have paid $1,500 less than the normal price of the car, since for that amount he could probably have replaced the engine.

Because the manufacturer is charged with knowledge of the defect, Moreno’s, supra, it is liable for consequential damages in a redhibition case, C.C. 2545, and “the action for a reduction of price is subject to the same rules ... as the redhibitory action”, C.C. 2544. The manufacturer is therefore liable for the $1,360.18 of expenses attributable to the defects, and for a reduction in price in the amount of $1,500.

Judgment is reduced in principal to $2,860.18 and is otherwise affirmed.

      . So plaintiff testified. However, the first repair documents indicate the car then had 18,-000 miles exactly on its odometer, and second repair documents show 19,391 miles.


author: MORIAL, Judge.

text:
    STYLE CRAFT, INC. v. John GRASSIN and Ursula Grassin.
    No. 8386.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 30, 1977.

      Richard J. Ganucheau, New Orleans, for plaintiff-appellant.
    Jack P. Broussard, Kenner, for defendants-appellees.
    Before REDMANN, STOULIG and MORIAL, JJ.
   MORIAL, Judge.

Plaintiff brought this suit to recover the balance due on a building contract for work performed on the home of defendants located at 114 Drolla Park in Jefferson Parish. Defendants filed a general denial and a reconventional demand seeking recovery of the costs of satisfactorily completing the job. The trial court rendered judgment dismissing plaintiff’s suit and awarded plaintiffs-in-reconvention $7,985.47 subject to a credit of $5,568.00 or $2,417.47. Plaintiff has appealed.

Jefferson Hebert, plaintiff’s representative, and Mrs. Grassin negotiated and executed a written Contract and Work Order on November 7, 1973 for the performance of certain repairs and renovations to the defendants’ residence for the price of $16,-700.00 of which one-third was due upon execution of the contract, another one-third was due after the completion of a certain portion of the work and the balance was due upon total completion of the job. Defendants refused to pay the final installment of $5,568.00 contending the work was incomplete and defective in workmanship. The trial judge found that plaintiff did not satisfactorily complete the work and award defendants the excess cost of completing the job.

Plaintiff argues on appeal that the trial court erred in finding that it did not satisfactorily complete the job in a workmanlike manner. Plaintiff also contends that the trial court erred in awarding defendants damages for the cost of completing work not included in the original contract. After reviewing the record we find that we must reject plaintiff’s arguments and affirm the findings of the trial court.

Mrs. Ursula Grassin testified that the Style Craft workers left the job in April 1974 and did not return to complete the work. In November 1974 defendant prepared a list of twenty-one items which had to be corrected in order to have the house satisfactorily completed. She submitted this list to a contractor J. K. Builders, Inc. who estimated that the work could be performed for $7,985.47. Defendants admitted that all of these items were not expressly set out in the written agreement between the parties. However, Mrs. Grassin stated positively that she and Mr. Hebert had discussed each of the listed items and he had assured her that each one was included in the original contract price. Mrs. Grassin testified that she was told that many of the items were standard and need not be set out expressly in the contract.

Jefferson Hebert, the Style Craft representative testified that all of the work required under the contract had been performed in a workmanlike manner. He admitted that various modifications had been made in the original contract but stated they were made largely to conform to changes requested by plaintiff as the work progressed. Hebert also admitted that the contract was general and by implication encompassed standard building practices followed in this field of construction. He stated that it became impossible to continue the job because Mrs. Grassin was continually changing her mind.

Mr. Edward Jemison, who was qualified as an expert in architecture, was of the opinion that the work was of poor quality and had to be redone in many areas. He testified that he was hired by defendants in late November to oversee the job. He stated that he wrote plaintiff a letter on April 4, 1974 in which he listed several items in need of correction on the job. He inspected the house on April 24, 1974 and found no progress had been made. He advised Mrs. Grassin in May to seek the advice of an attorney. Jemison stated that he again visited the home in April 1976 and found the same defects and also noted additional deficiencies in the work.

Jemison also found the written contract to be incomplete, inadequate, nebulous and one-sided. He stated that a contract of this type usually contained specifications and drawings.

It is implied in every building contract that the work of the builder will be performed in a good workmanlike manner, free from defects either in material or workmanship. Neel v. O’Quinn, 313 So.2d 286 (La.App. 3 Cir. 1975). The testimony of the defendants’ expert Mr. Jemison established that the work was of poor quality and was not satisfactorily completed. A large number of the items listed by defendants upon which the estimated cost of completion was based involved the correction of defective workmanship. The defendants are entitled to recover the costs of eliminating the defects in the work.

We must also determine whether or not defendants are entitled to recover the costs of items which were not specifically listed in the written contract. Parol evidence is clearly admissible to prove a subsequent verbal agreement, modifying or even abrogating a written contract, if the contract is not required to be in writing. A construction contract need not be in writing. Anzalone v. Gregory, 334 So.2d 504 (La.App. 1 Cir. 1976). Therefore, we may consider the evidence of verbal agreements made between the parties. Mrs. Grassin testified positively that all the items included on her list were bargained for and made a part of the contract. Evidently the district judge found defendants’ testimony convincing and we must give great weight to his credibility findings since he observed the witnesses. We also find the generality of the contract itself further supports the trial court’s finding that the parties verbally agreed to many aspects of the construction project which were not expressed in writing. Therefore, defendants are entitled to recover the costs of completing the work in accord with the estimate based on Mrs. Grassin’s itemized list, with one exception. The clothes washer and dryer, identified by Mrs. Grassin by brand and model number, were not promised by the written contract although it did promise, by brand and model number, built-in stove and dishwasher. We deem it extremely unlikely that a builder would orally promise free-standing appliances by brand and model number, while writing down in a written contract the brand and model number of the built-in appliances on a form that had plenty of room left over to list the washer and dryer information as well. It is unthinkable to us that either party would rely on a contemporaneous oral agreement for items that are not part of the ordinary undertaking of a building contractor. Although other items may be of the nature of specifications or concretizations of a non-specific building contract, that cannot be said for Mrs. Gras-sin’s position that the contract included a washer and dryer. We, therefore, reduce the net award by $699.90 to $1,717.57.

For the foregoing reasons the amount of the judgment of the trial court is amended to a net for defendant of $1,717.57 and it is otherwise affirmed.

AMENDED IN PART AND AFFIRMED


text:
    Audrey JENKINS v. DEPARTMENT OF FINANCE.
    No. 8554.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 30, 1977.
    Ernest L. Jones, New Orleans, for appellant.
    Michael A. Starks, New Orleans, for ap-pellee.
    Before LEMMON, STOULIG and MORIAL, JJ.
   MORIAL, Judge.

Rule 16, Section 2 of the Uniform Rules for the Court of Appeal provides:

“An application for an appeal shall be made to the respective Commission in writing within thirty (30) days after the date of filing of the Commission’s final decision with the Director of Personnel or the Secretary. . .

Section 4 of Rule 16 further provides:

“Every appellant shall file with his application for appeal a bond for costs in the sum of one hundred dollars ($100) in favor of the respective Commission.”

The Civil Service Commission upheld the dismissal of Audrey Jenkins from the Department of Finance on August 5, 1976. The appellant filed her notice of appeal on August 31, 1976 and subsequently filed the appeal bond on November 12, 1976.

“In the absence of the timely filing of an appeal bond, the trial court’s jurisdiction is not divested and the jurisdiction of the appellate court does not attach.” Guilliot v. City of Kenner, 326 So.2d 359 (La.1976); In Re Roberts, 257 So.2d 473 (La.App. 1 Cir. 1972).

Appellant Jenkins failed to timely perfect her appeal. Therefore, her appeal is dismissed for lack of jurisdiction by the appellate court.

APPEAL DISMISSED.


text:
    David QUINN, Jr. v. DEPARTMENT OF HEALTH.
    No. 8672.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 30, 1977.
    Archie C. Tatford, Jr., New Orleans, for appellant.
    Michael A. Starks, New Orleans, for ap-pellee.
    Before REDMANN, STOULIG and MORIAL, JJ.
   MORIAL, Judge.

This matter comes before the court on a motion to dismiss the appeal of David Quinn, Jr. from a Civil Service Commission decision brought by the Department of Health, City of New Orleans.

The decision of the Civil Service Commission was rendered and filed in the office of the Civil Service Commission on January 18, 1977. Notice thereof was sent by certified mail postmarked January 19, 1977 to appellant’s counsel and received by him on January 21,1977. A motion for appeal was filed on February 18, 1977 which was thirty-one days after the decision.

Article 10, Section 12 of the Louisiana Constitution of 1974 provides in part:

“. . . The decision of a commission shall be subject to review on any question of law or fact upon appeal to the court of appeal . . . within thirty calendar days after its decision becomes final

Rule 16, Section 1 of the Uniform Rules of the Courts of Appeal attempts to define a final decision, but it does so self-contradictorily:

“ * * * A decision shall be final on the date the respective Commission files its written decision disposing of the case with the Director of Personnel of the Civil Service Commission ... if no timely application for rehearing is made to the Commission. When an application for a rehearing (if such action is permitted by rule of the Commission involved) has been applied for timely, a decision shall be final when the Commission files its written denial thereof ... or . its written decision disposing of the case with the Director of Personnel after the rehearing. To be timely, an application for rehearing must be filed with the Director within ten (10) days of the date the Commission’s decision is filed. * * * ” (emphasis added)

Although no rule is shown to have been adopted by the City Civil Service Commission itself, the Administrative Procedure Act does not except the Commission from its applicability, and R.S. 49:959 A provides a decision shall be subject to rehearing within ten days from entry.

The self-contradiction in our Rule 16 that it describes as “final” a decision immediately upon its rendition and filing, while it is still subject to application for rehearing, yet the Rule removes that “finality” upon a timely application for rehearing, and reinstates it after action on the application. La.Const. Article 10 § 12 contemplates no such view in allowing appeal within 30 days “after its decision becomes final.” A decision “becomes” final because of some change after its rendition: the change occurs by the passage of time for applying for rehearing (or by the action on a timely application for rehearing). Until the Commission loses its power to alter its decision, the decision does not “become final” in the ordinary sense meant by the Constitution: and until the decision “becomes final” in that sense the 30-day constitutional appeal period does not begin to run.

Insofar as our Rule 16 § 1 would abridge the 30-day constitutional appeal period it cannot have effect.

The present appeal was timely taken.

MOTION DENIED.


text:
    Andrew BROWN v. W. C. DRENNAN et al.
    No. 8778.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 30, 1977.

      William A. Summers, III, Metairie, for plaintiff-appellant.
    Montgomery, Barnett, Brown & Read, Charles A. Boggs, New Orleans, for interve-nor-appellant.
    Hammett, Leake, Hammett, Hulse & Nelson, Robert E. Leake, Jr., New Orleans, for defendants-appellees.
    Before SAMUEL, LEMMON and SCHOTT, JJ.
   This is a tort action against an independent contractor for injuries sustained by plaintiff while working for the general contractor. It is now before us on defendant’s motion to dismiss the appeal of plaintiff-appellant.

The judgment appealed from dismissed plaintiff’s suit along with that of his employer’s compensation carrier which intervened to recover benefits paid to plaintiff. Both plaintiff and intervenor filed petitions for devolutive appeals within the 60 day delay established by LSA-C.C.P. Art. 2087, the intervenor posted a devolutive appeal bond in the amount of $1,000 as set by the trial court within the 60 day period, but plaintiff did not post a devolutive appeal bond, also set at $1,000 by the trial court, until after the 60 day delay expired. The issue is whether this court has jurisdiction over plaintiff’s appeal under these circumstances.

In Humble Oil & Refining Co. v. Chappuis, 236 So.2d 272 (La.App. 3rd Cir.) that court’s jurisprudence was reaffirmed to the effect that only one appeal bond is required for multiple appellants from a single judgment.

This court in Borne v. Bourg, 327 So.2d 607 (La.App. 4th Cir. 1976) recognized the validity of the general rule followed by the Third Circuit but recognized an exception in the case where the defendant-appellant was cast in judgment jointly and soli-darily with three other defendants but failed to post a suspensive appeal bond. In dicta, we said the broad jurisprudential rule requiring only one bond from multiple appellants would perhaps apply when the required bond for a devolutive appeal in fact affords security for all costs due by all appellants.

Here the one bond timely posted by inter-venor afforded security for all costs due by both appellants. On the strength of inter-venor’s bond the record has been prepared and filed in this court. The bond subsequently furnished by the plaintiff was, as a practical matter, an unnecessary duplication of the bond already furnished by inter-venor.

Appeals are favored under the law, and any doubt as to the validity of an appeal must be resolved in favor of an appellant. Considering this principle the circumstances present in this case, the motion to dismiss the appeal is denied.

MOTION DENIED.


author: WALKER, Justice, for the Court:

text:
    Jimmie Lee BRANCH v. STATE of Mississippi.
    No. 49730.
    Supreme Court of Mississippi.
    April 6, 1977.
    As Modified on Denial of Rehearing July 13, 1977.
    Charles 0. Jones, Barry W. Gilmer (Appeal only), Jackson, for appellant.
    A. P. Summer, Atty. Gen. by Catherine Walker Underwood, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before GILLESPIE, INZER and WALKER, JJ.
   WALKER, Justice, for the Court:

Jimmie Lee Branch was accused of raping an adult female citizen of the City of Jackson on the night of March 12, 1975. The victim testified that a man had entered her bedroom while she was asleep, at about one o’clock in the morning, and pressed a pillow over her face, saying, “Don’t scream and don’t holler. If you do I’ll kill you.” The man blindfolded her and, after forcing her to disrobe, tied her up. During the next four hours, the man raped her four times and also committed oral intercourse upon her. He tried unsuccessfully to commit anal intercourse, and also attempted to force the victim to perform oral intercourse upon him. She testified that the man put what seemed to be a gun to her head and that, although he threatened to kill her, she refused to perform oral intercourse upon him. Before leaving, he ransacked her home and stole many of her belongings. “He got everything he could get in my car. He stole my car.”

Although the victim never saw her assailant because of her blindfold, she identified Jimmie Lee Branch at a police lineup by the sound of his voice. She testified that she knew the sound of his voice well, because he kept talking throughout the assault. Furthermore, Branch’s fingerprint was found on the mirror in the victim’s bathroom. Finally, several of the items stolen from the victim were discovered when the police searched Branch’s residence pursuant to a search warrant. The victim identified two pillows, several ash trays, her birth control pills, and her suitcase, all of which were found at Branch’s residence. The bottle containing the pills was marked with the name of the victim. At his trial in the Circuit Court for the First Judicial District of Hinds County, Mississippi, the jury, after hearing all the evidence, found Branch guilty as charged, and the judge sentenced him to serve a term of fifty years in the custody of the State Department of Corrections.

In his appeal Branch contends that the judge improperly overruled his motion to suppress evidence obtained by a search of his residence. He further contends that his motion for a mistrial should have been granted because of the prosecutrix’s references during her testimony to others who were present at the lineup at which she identified Branch, and because of the prosecutor’s cross-examination of Branch’s wife as to his relations with other women during their marriage. Finally, Branch contends that the judge erred in admitting any testimony about the lineup at which the victim identified him.

A hearing was held outside the presence of the jury to consider Branch’s motion to suppress the evidence discovered at his residence. That search was conducted pursuant to a warrant which was introduced into evidence and made a part of the record. A warrant may only be issued when the police have demonstrated probable cause by introducing evidence of “underlying circumstances” before the magistrate granting the warrant. Aguilar v. Texas, 378 U.S. 108, 114-15, 84 S.Ct. 1509, 1514, 12 L.Ed.2d 723, 729 (1964). In this case, a written statement of underlying facts and circumstances was presented to the magistrate, and was introduced for identification at the hearing on the motion to suppress. However, this statement was never introduced into evidence, and therefore does not appear in the record before this Court.

Branch assigns as error that the underlying facts and circumstances in support of the affidavit for a search warrant do not constitute probable cause for issuance of the search warrant and that the evidence seized pursuant thereto should have been suppressed. However, the document containing a recital of the underlying facts and circumstances is not before the Court for us to examine, and the appellant has made no effort to have the document brought before the Court by a motion for diminution of the record, or writ of certio-rari. Therefore, we can only assume that its contents would not be favorable to the appellant. There is a presumption that the judgment of the trial court is correct, and the burden is on the appellant to demonstrate some reversible error to this Court. It is the appellant’s duty to see that all matters necessary to his appeal, such as exhibits, witnesses’ testimony, and so forth, are included in the record, and he may not complain of his own failure in that regard. The Supreme Court may only act on the record presented to it. Shelton v. Kindred, 279 So.2d 642, 644 (Miss.1973). There are adequate procedures and safeguards to assure that incorrect or incomplete records are remedied. The appellant has failed to place the necessary record pertaining to this assignment of error before us, and we are therefore unable to consider it.

Branch further contends that he was prejudiced by the victim’s testimony that she was taken to a lineup “for us to identify which one we thought was the suspect or the — .” Branch contends that her use of the plural pronoun indicated to the jury that several rape victims had been asked to identify him. He argues that this statement was immaterial and inflammatory, and contends that the judge should have sustained his motion for a mistrial. We disagree. The victim’s remarks were evidently inadvertent, and the court instructed her to confine her testimony to her own activities. She made no reference to other rape victims, but merely said “We” instead of “I.” Ordinarily, when we have reversed cases because of inflammatory testimony, we have noted a pattern of prosecutorial misconduct as well as clear prejudice to the defendant. See e. g, Tudor v. State, 299 So.2d 682, 685-86 (Miss.1974). Here, the witness’ remarks were totally inadvertent, and we find no indication that they could have prejudiced the defendant.

Branch also objects to the prosecutor’s cross-examination of his wife on the question of whether he had given her problems with other women. The state contends that this was proper impeachment of Branch’s testimony that he scarcely knew the prosecutrix, even though he had lived next door to her, because of his fidelity to his wife. Although the cross-examination was vigorous, we cannot conclude that the trial court, in overruling Branch’s motion for a mistrial, erred in finding that it was not prejudicial.

We cannot rule on Branch’s contention that the victim’s testimony as to the lineup should have been excluded, because he made no proper objection at trial. His attorney moved for a mistrial because of the victim’s indication that several other witnesses were present at the lineup. He never asked the court that her testimony about the lineup be excluded altogether. Therefore he may not make that argument before this Court.

Finding no merit in Branch’s assignments of error, his conviction and sentence must be affirmed.

AFFIRMED.

GILLESPIE, C. J., PATTERSON and IN-ZER, P. JJ., and SMITH, ROBERTSON, SUGG, BROOM and LEE, JJ., concur.


author: SUGG, Justice, WALKER, Justice,

text:
    Smith JOHN and Harry John v. STATE of Mississippi.
    No. 49682.
    Supreme Court of Mississippi.
    May 11, 1977.
    Rehearing Denied July 20, 1977.

      Edwin R. Smith, Philadelphia, for appellant.
    A. F. Summer, Atty. Gen., by Catherine Walker Underwood, Special Asst. Atty. Gen., Jackson, for appellee.
    Before PATTERSON, SUGG and WALKER, JJ.
   SUGG, Justice,

for the Court:

The defendants, Smith John and Harry John, were convicted of- aggravated assault and sentenced by the Circuit Court of Leake County to serve two years in the penitentiary.

The primary question is one of jurisdiction between the United States District Court and the Circuit Court of Leake County, Mississippi. Did the United States District Court have jurisdiction to try the defendants under the Major Crimes Act, 18 U.S.C.A. § 1153, or did the Leake County Circuit Court have jurisdiction to try the defendants under Mississippi Code Annotated section 97-3-7(2) (Supp.1976). Both courts could not have jurisdiction because the prosecution in each was based on the same acts of the defendants.

The errors assigned are: (1) The trial court erred in failing to sustain defendants’ motion to dismiss after their prosecution in United States District Court resulted in a conviction of simple assault based on the same incident which resulted in their conviction in the Circuit Court of Leake County. (2) The trial court erred in denying defendants’ plea of former jeopardy because they had been convicted in United States District Court for the same act. (3) The trial court erred in subjecting defendants to trial following their trial in United States District Court because their trial in the state court constituted invidious racial discrimination.

Defendants were convicted of simple assault in the United States District Court for the Southern District of Mississippi for violating 18 U.S.C.A. § 113 and were sentenced to serve ninety days and to pay a fine of $300.

Federal custody over the defendants was obtained through a habeas corpus ad prose-quendum. Defendants’ brief states that the defendants’ misdemeanor conviction in the United States District Court has been appealed to the Fifth Circuit Court of Appeals. They contend that unless and until the United States District Court’s conviction is overturned the state has no right to proceed with its prosecution on the indictments in the state court.

The United States District Court’s judgment of conviction was entered December 15, 1975 before our decision in Tubby v. State, 327 So.2d 272 (Miss.1976) and before the decision of the Fifth Circuit Court of Appeals in United States of America et al. v. State Tax Commission of State of Mississippi et al., 535 F.2d 300 (5th Cir. 1976).

Tubby, supra, involved the conviction of a Choctaw Indian for arson for burning a house owned by another Choctaw Indian located on land purchased for the Choctaw Indians with trust funds held by the United States. We held in Tubby that Mississippi has criminal jurisdiction over all crimes committed by Choctaw Indians within this state because: (1) “Indian Country” within Mississippi was extinguished by land patents issued to the individual Choctaw Indians under the terms of the Treaty of Dancing Rabbit Creek. (2) All Choctaw Indians residing within Mississippi have been made citizens of the state by terms of the Treaty of Dancing Rabbit Creek, by amendment to the Mississippi Constitution, and by Mississippi statutes. (3) The Choctaw Indians of Mississippi do not fall within the provisions of the Federal Indian Reorganization Act granting certain rights of home rule to Indians because they gave up their status as reservation Indians and became citizens of Mississippi before the enactment of the Indian Reorganization Act, §§ 1 et seq., 25 U.S.C.A. §§ 461 et seq. (4) Choctaw Indians became subject to Mississippi law when the United States Government issued patents to their land. (5) The courts of Mississippi have jurisdiction of Choctaw Indian citizens in the same manner and to the same extent that they have jurisdiction over other citizens of Mississippi.

Although the decision of the Fifth Circuit Court of Appeals in United States v. State Tax Commission, 535 F.2d 300 (5th Cir. 1976) involved a tax question, the holding is persuasive on the issues involved in this case. The Fifth Circuit held:

[1] After the ratification of the Treaty of Dancing Rabbit Creek the Choctaw Indians who chose to remain in Mississippi were no longer an Indian Tribe, they were citizens of Mississippi, and they most assuredly were not wards of the United States. The only way they could reassume Choctaw tribal citizenship was to move to the Indian Territory.

As cited in the original opinion, a thorough discussion of this situation was authored by Mr. Justice Pitney in Winton v. Amos, 255 U.S. 373, 41 S.Ct. 342, 344, 65 L.Ed. 684 (1921). That opinion of the Supreme Court sets forth in interesting detail the many unsuccessful efforts of the Mississippi Choctaws to reassume Choctaw citizenship without moving to the Indian Territory. See, also, Choctaw Nation v. United States, 119 U.S. 1, 7 S.Ct. 75, 30 L.Ed. 306 (1886).

[2] In any event, this Treaty was made by and between the Tribe and the United States and both were bound by its terms. By remaining and accepting (or claiming later, as some did) the lands allotted to those who wished to stay, the individual Indian likewise bound himself to the provisions of the Treaty.

[3] The Treaty of Dancing Rabbit is a part of the Supreme Law, United States Constitution, Article 6, Clause 2, and it cannot be altered by an Act of Congress; Congress cannot obliterate the jurisdiction of Mississippi over its citizens.

This case simply does not fit into the extensive jurisprudential grooves developed with reference to Indian wards or those Indian Reservations which were established either by Treaty or created by Congress for those who never converted their Indian status to that of state citizenship.

The Choctaw Indians of Mississippi do not live in Indian country. Except for that land patented to individual Indians under the terms of the Treaty (and not in trust) the Tribe sold all of its land to the United States in 1830. By 1850 virtually every acre of it had been patented to private purchasers by virtue of sales at the Land Offices in Columbus and Pauld-ing. See DeCoteau v. District County Court for Tenth Judicial District, 1975, 420 U.S. 425, 95 S.Ct. 1082, 43 L.Ed.2d 300. See also, Dillon v. Antler Land Company of Wyola, 9 Cir. 1974, 507 F.2d 940, cert. denied, 421 U.S. 992, 95 S.Ct. 1998, 44 L.Ed.2d 482.

[4] We adhere to the view originally entertained that the definition of the term “Indian” appearing in Section 19 in no way altered or amended the description of those entitled to organize under the terms of Section 16.

We also adhere to the opinion that:

(1) The Choctaw Indians residing in Mississippi in 1934 were not members of an Indian tribe. The tribe was in Oklahoma. The tribal status of the Mississippi Choctaws had been permanently extinguished by the 1830 Treaty of Dancing Rabbit Creek;

[5,6] (2) Granting that Section 7 of the 1934 Act authorized the Secretary of the Interior to set up new Indian reservations, we think that the clear intent of Congress was to legislate for Indian tribes, not for individual Indians;

(3) We see nothing in the Acts of Congress conferring authority upon the Secretary of the Interior to create Indian tribes where none had theretofore existed. Under Section 16 only a tribe could organize for self-government, etc. Additionally, we think the purpose was to give the tribes some independence from the Bureau of Indian Affairs;

[7] (4) Nothing in the various Congressional enactments indicates a desire or purpose to abrogate the Dancing Rabbit Treaty;

[8] (5) Nothing in the various Congressional enactments indicates a desire or purpose to oust Mississippi of its jurisdiction over those who had been its citizens, so declared by Treaty, for over a hundred years.

Consequently, we are of the opinion that the jurisdiction of the State of Mississippi over its citizens of Choctaw Indian blood stands unimpaired. (535 F.2d at 302, 306).

In view of Tubby and United States v. State Tax Commission, supra, we are of the opinion that the United States District Court had no jurisdiction to proceed with the prosecution of the defendants under 18 U.S.C.A. § 1153 (Supp.1976).

In their second assignment of error defendants argue that they have been subjected to double jeopardy because they were convicted in the United States District Court under 18 U.S.C.A. § 1153 and under Mississippi Code Annotated section 97-3-7(2) (Supp.1976) for the same act. The argument is without merit because former jeopardy does not exist unless the previous trial was before a court of competent jurisdiction. It has long been settled in this state that a party who has been tried and convicted by a court not having jurisdiction of the offense cannot plead former jeopardy if subsequently indicted for the same offense in a court having jurisdiction thereof. Montross v. State, 61 Miss. 429 (1883). We do not find any case in which the United States Supreme Court has addressed this question and none was cited in the briefs. However, the federal courts in the various circuits adhere to the rule expressed in Montross, supra. See cases annotated in West Federal Practice Digest, Criminal Law, &wkey;167. In 22 C.J.S. Criminal Law § 244 at 643-644 (1961) the general rule is stated as follows:

Former jeopardy does not exist unless the previous trial was before a court of competent jurisdiction, and a judgment void for lack of jurisdiction is not a bar to a subsequent prosecution for the same offense. The court in which the prior acquittal or conviction was obtained must have been one having jurisdiction of the offense charged and also of accused, obtained by due process based on legal proceedings. However, the judgment of a court having jurisdiction is a bar to a subsequent prosecution for the same offense, even though the judgment is erroneous and voidable, or the court erred in exercising a discretion vested in it. The fact that a court having jurisdiction when the trial starts thereafter loses it by rendering judgment thereon on Sunday does not change the fact that accused had been placed in jeopardy. Where accused procured a prior conviction to be set aside on the ground that the court was without jurisdiction, he is estopped subsequently to assert, in support of a defense of previous jeopardy, that such court had jurisdiction.

The trial of defendants in the Leake County Circuit Court following a trial in the United States District Court did not amount to double jeopardy because the United States District Court did not have jurisdiction of the crime with which defendants were charged.

Defendants’ third assignment of error is that their trial in state court constituted invidious racial discrimination and in their brief state the following:

Artis Jenkins, the victim of the allegedly unlawful assault which gave rise to both the state and the federal prosecutions, was a non-Indian. Both Smith John and his son, Harry Smith John, are full-blooded Choctaw Indians. The incident took place upon lands which are Indian country under federal law. As Indians accused of one of the crimes enumerated under the Major Crimes Act, Defendants were subjected to trial in federal court. 25 U.S.C. 1153; 18 U.S.C. 3242. Had the Defendants instead been non-Indians, they would have been subject only to state court jurisdiction. Clearly, then, if jurisdiction were found to be vested over defendants Smith and Harry Smith John so as to permit the state and the federal courts to proceed against them, they could be tried a second time for their assault against Ar-tis Jenkins only because of their race. Subjection of the defendants to a second, state trial, therefore, is violative of the provisions of the Fifth and Fourteenth Amendments to the Constitution of the United States, in that it is invidious discrimination based upon race. So fundamental and self-evident is the proposition that it requires no further supporting authorities.

The fallacy of defendants’ argument is that the United States District Court had no jurisdiction to try them under Major Crimes Act, 18 U.S.C.A. § 1153. There is no Indian country in Mississippi, the defendants are citizens of Mississippi subject to its laws, and therefore are subject to prosecution in its courts. Defendants stated in their brief that their conviction in the United States District Court has been appealed to the Fifth Circuit Court of Appeals. If the Fifth Circuit should hold that the United States District Court had jurisdiction under 18 U.S.C.A. § 1153 and affirm their conviction, a conflict in decisions between the Fifth Circuit and this Court would result. This conflict could then be properly resolved in the United States Supreme Court.

The defendants are in the same position as any other defendant, regardless of race or color, who has been tried for a crime by a court which had no jurisdiction. We therefore reject this argument of defendants that they are victims of invidious racial discrimination because of their prosecution in the state court.

AFFIRMED.

GILLESPIE, C. J., PATTERSON and IN-ZER, P. JJ., and SMITH, ROBERTSON and BROOM, JJ., concur.

WALKER, J., specially concurs.

LEE, J., took no part.

WALKER, Justice,

specially concurring.

In view of this Court’s holding in Tubby v. State, 327 So.2d 272 (Miss.1976), I concur. However, I am still of the opinion that Tubby was erroneously decided.

      . The judgment of the circuit court was entered May 7, 1976 and each defendant was given credit on the sentence for eight months and eight days time served in jail. The crime for which defendants were convicted occurred on August 30, 1975 and apparently they were detained in jail from the time of their arrest following the commission of the crime until they filed an appearance bond in connection with their appeal to this Court on May 10, 1976.

      . See decision of three judge panel in United States of America et al. v. State Tax Commission of State of Mississippi et al., 505 F.2d 633 (5th Cir. 1974).


text:
    Clyde E. LOVELACE v. STATE of Mississippi. John E. GALBO v. STATE of Mississippi.
    No. 49696.
    Supreme Court of Mississippi.
    May 18, 1977.
    Rehearing Denied for Galboa June 1,1977.
    Rehearing Denied for Lovelace July 20,1977.
    R. L. Netterville, Natchez, H. Alva Brum-field, III, Baton Rouge, La., Andalman, Bergmark, Adelman & Steiner, Elliott An-dalman, Hattiesburg, for appellants.
    A. F. Summer, Atty. Gen. by Pete J. Cajoleas, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before PATTERSON, P. J., SUGG and WALKER, JJ., and NEAL B. BIGGERS, Commissioner.
   AFFIRMED.