text:
    Mrs. Mona SEWELL, Plaintiff-Appellee, v. ARGONAUT-SOUTHWEST INSURANCE CO., Defendant-Appellant.
    No. 5672.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 10, 1976.

      Richard A. Fraser, Shreveport, for defendant-appellant.
    Gahagan & Gahagan by H. C. Gahagan, Jr., Natchitoches, for plaintiff-appellee.
    Before HOOD, DOMENGEAUX and GUIDRY, JJ.
   GUIDRY, Judge.

This is a workmen’s compensation suit. Defendant is the workmen’s compensation insurer of plaintiff’s former employer, Natchitoches Parish Hospital. The district court awarded plaintiff benefits for total and permanent disability, 12% penalties, and attorney’s fees in the amount of $2500.00. Defendant appealed.

Disposal of the several issues presented by this appeal requires a brief summary of the evidentiary facts, which for the most part, are not disputed.

Mrs. Mona Sewell, plaintiff herein, was an employee of the Natchitoches Parish Hospital, serving as a technician in a department of that hospital known as “Central Supply”. She had worked in such capacity for approximately 8 years prior to the date of her alleged accident. The duties of a technician in central supply generally consist of ordering, stocking, maintaining and disbursing all needed hospital and surgical supplies and the cleaning and sterilization of surgical instruments, etc. In performing the physical, tasks required the technician must be able to bend, stoop, climb and. lift objects weighing from 25 to 30 pounds. .

On December 26, 1973, during the course and scope of her employment with the hospital, plaintiff fell from a ladder and injured her back. On the date of accident plaintiff was seen by her family physician, Dr. Roy Cook, who immediately instituted a regime of conservative treatment. When Mrs. Sewell failed to respond to such treatment Dr. Cook referred her to Dr. A. E. Dean of Shreveport, Louisiana. Dr. Dean, an orthopedic surgeon, determined that Mrs. Sewell was suffering from a ruptured disc. On January 21, 1974, Dr. Dean performed a lumbar laminectomy on plaintiff, at the P. & S. Hospital in Shreveport, Louisiana, excising the L-5, S-l disc. Subsequent to and as a result of this surgery, plaintiff developed a staphlococcus infection in the area of the incision, as a result of which she was hospitalized for sometime at both the P. & S. Hospital and the Natchi-toches Parish Hospital. Following her release from hospitalization Mrs. Sewell remained under the care of both Drs. Cook and Dean, until she was advised that she could attempt to resume her employment, with a limitation however, that she should refrain from any lifting. Mrs. Sewell was paid workmen’s compensation benefits by the defendant from the date of injury, December 26, 1973, to the date when she resumed her employment on June 17, 1974. On August 9,1974, Dr. Dean released plaintiff from his care with a permanent, partial disability of the body as a whole of 15%.

Mrs. Sewell returned to her same job, however, she testified that because of the severe pain which she experienced in the lower part of her back from the outset of her re-employment she was unable to perform the greater part of the tasks which were required of a technician in central supply. Her inability to perform tasks requiring lifting, stooping, bending and climbing were attested to by her co-employees Wanda Harrison, Linnie Mae Fredieu, and by her daughter, Candice S. Airhart. In this regard, we note that plaintiffs supervisors, Mrs. Eura St. Andre, Director of Nurses, and Messrs. Ryder and Spillman, hospital administrators, all testified that in spite of the fact that Mrs. Sewell was not performing and was unable to perform all of the tasks performed by her during her previous employment, she did in fact work a regular shift and actually earned the wages which were paid to her.

Because of the continuing difficulty which Mrs. Sewell was having with pain in her lower back, she consulted Dr. Louis Cayer, an orthopedic specialist, on January 24,1975. Dr. Cayer’s examination of plaintiff revealed quite severe muscle spasms in the lumbar section of her back, loss of reflexes, atrophy in the right calf and other objective signs which prompted a conclusion by him that as a result of complications from the disc surgery and staph infection that plaintiff suffered from a 25% overall body impairment. It was Dr. Cayer’s opinion that such disability would prevent plaintiff from performing the usual and customary duties performed by a clerk in central supply; that her complaints of pain were very real and would re-occur with frequency throughout her life; and, that such condition was permanent. On Dr. Cayer’s advice, and because of her continued suffering, plaintiff submitted her written resignation to the hospital terminating her employment effective as of February 28, 1975. In her letter of resignation, to which was attached a copy of Dr. Cayer’s report, Mrs. Sewell specifically requested that she be reinstated to workmen’s compensation. Mrs. Sewell’s letter with report attached was presumably forwarded by her employer to the latter’s insurer, Argonaut-Southwest Insurance Company, as on April 24, 1975 a Mr. Harvey Griffith, adjuster of Beaubouef Claim Service Inc. of Shreveport, went to Natchitoches to contact plaintiff on behalf of the defendant-insurer. Upon arrival at Mrs. Sewell’s home Mr. Griffith was requested to meet plaintiff’s husband and an attorney friend, Mr. Sam Friedman, at the latter’s office for the purpose of discussing plaintiff’s demand for resumption of compensation payments. A meeting was held that same afternoon where a discussion was had between Messrs. Griffith, Sewell and Friedman. The plaintiff did not attend this meeting. The evidence presented by plaintiff and that presented by defendant concerning what transpired at this meeting is in direct conflict. Plaintiff’s husband and Mr. Friedman both testified that at this meeting demand was made upon defendant through its representative that compensation payments to Mrs. Sewell be resumed in consideration of which the latter would forego any claim for penalties and attorney’s fees. Messrs. Sewell and Friedman testified further that Mr. Griffith then acknowledged that Mrs. Sewell was entitled to payment of compensation and categorically stated that such payments would be made. The only other party present at this meeting, Mr. Griffith, testified that although demand was made that compensation payments to Mrs. Sewell be brought current and continued, he did not inform either Mr. Sewell or Mr. Friedman that the company would resume the payment of compensation.

The only other contact between plaintiff and Mr. Griffith occurred in early June of 1975, when the latter telephoned the former with the request that she be examined by a Dr. Rambach, the appointment with Dr. Rambach being fixed for June 26, 1975. Mrs. Sewell agreed to this request but later after consultation with Mr. Friedman and her husband she refused to be examined and so advised the company. When compensation payments were not resumed plaintiff again contacted Mr. Friedman and this suit was then instituted on September 26, 1975. Following the institution of suit, defendant filed an exception of prescription and an answer. The matter was tried and judgment was rendered in favor of plaintiff, the trial court concluding, pursuant to brief written reasons, that defendant’s plea of prescription was ill founded because plaintiff was lulled into a sense of security by defendant’s adjuster that compensation payments would be resumed and therefore defendant was estopped to plead prescription; Mrs. Sewell’s wages after her return to her employment were paid in lieu of compensation and therefore plaintiff’s suit was timely; plaintiff was totally and permanently disabled; and, under the circumstances plaintiff was entitled to penalties and attorney’s fees.

On appeal defendant contends that the trial court erred in three main particulars, i. e., (1) in overruling defendant’s plea of prescription based upon LSA-R.S. 23:1209; (2) in finding that plaintiff was totally and permanently disabled; and, (3) in awarding penalties and attorney’s fees. We will consider these contentions in the order presented.

PRESCRIPTION

Plaintiff acknowledges that more than one year elapsed between the payment of last compensation and the institution of suit. Plaintiff argues, however, that the one year prescription provided for by LSA-R.S. 23:1209 is not applicable to bar suit by plaintiff for several reasons. Plaintiff first contends that defendant is estopped to plead prescription because she was lulled into inaction by representations of defendant’s agents that payment of compensation would be resumed without the necessity of filing suit. Plaintiff secondly contends, in the alternative, that the wages paid to her during the period June 17, 1974 and February 28, 1975 were in lieu of compensation and that her suit filed in September 1975 was timely. Plaintiff thirdly contends, in the alternative, that under the “development of injury rule”, first announced in Mottet v. Libby-Owens Ford Glass Co., 220 La. 653, 57 So.2d 218 (1952), prescription did not begin to run until she resigned from work on February 28, 1975.

We first consider plaintiff’s contention that defendant is estopped to assert prescription in bar of her claim.

At the outset, we observe that since more than one year elapsed between payment of last compensation and institution of suit plaintiff bears the burden of establishing that prescription has been interrupted and/or that defendant is estopped to urge such plea. Mella v. Continental Emsco, 189 So.2d 716 (La.App. 1st Cir. 1966), writ refused, 249 La. 762, 191 So.2d 141. Granger v. Nichols Construction Corporation, 202 So.2d 337 (La.App. 1st Cir. 1967).

Our examination of the record in this case prompts us to conclude that plaintiff has borne this burden.

Following plaintiff’s injury on December 26, 1973 she was immediately paid compensation by the defendant. Although, plaintiff had had no previous experience with compensation matters she had no difficulty whatever in securing payment, same having been made promptly and voluntarily. Plaintiff concluded, on the basis of this prior experience, that she would encounter no difficulty in being reinstated to compensation upon her resignation, especially in light of the fact that prior to her resignation she had secured the opinion of an able physician to the effect that she had an overall body impairment of 25% and was totally and permanently disabled. When compensation payments were not forthcoming plaintiff made numerous inquiries through her employer concerning her reinstatement to compensation, such inquiries being made before and after her contact with the defendant’s representative on April 24, 1975. On April 24, 1975, defendant’s representative assured both plaintiff’s husband and her attorney that she would be reinstated to compensation without the necessity of suit. Plaintiff was contacted by the defendant’s representative in early June of 1975 with the request that plaintiff be examined by a doctor of the insurer’s choice, the appointment being made for June 26, 1975, 1 year and 2 days following the last payment of compensation. Under these circumstances it was certainly logical for plaintiff to conclude that her claim for reinstatement was being processed and that she would be restored to compensation without the necessity of filing suit. When compensation payments were not forthcoming plaintiff again contacted her attorney and suit was filed less than four months following plaintiff’s last contact with defendant’s representative.

It is well settled that an employer and/or insurer who lulls the injured employee into a false sense of security, thus inducing forebearance in the prosecution of a compensation claim is estopped to plead prescription to the injured employee’s untimely suit. Mella v. Continental Emsco, A Division of Youngstown Sheet and Tube Company, 189 So.2d 716 (La.App. 1st Cir. 1966) writs refused Nov. 7, 1966; Landry v. Ferguson, 279 So.2d 185 (La.1973); Dupaquier v. City of New Orleans, 260 La. 728, 257 So.2d 385 (1972).

The court in Dupaquier v. City of New Orleans, supra, found that plaintiff, who had suffered a heart attack, was led to believe that full sick leave benefits which he was receiving included workman’s compensation and that a suit for workman’s compensation would be premature. In overruling the City’s plea of prescription the Court stated:

“The purpose of the one year prescriptive period is to protect employers from the burdensome litigation of stale claims. When, however, the employer lulls the employee into a false sense of security, causing him to withhold suit until after the period has expired, the employer cannot invoke the time bar to defeat compensation.”

Likewise, in Landry v. Ferguson, supra, the court determined that plaintiff, an uneducated farm laborer who was assured by his employer that he would be “taken care of”, was lulled into a false sense of security. In Drane v. City of New Orleans, 328 So.2d 752 (La.App. 4th Cir. 1976) the court observed that statements to an employee that compensation will be paid without suit indicate the employer has recognized the claim, and an employee alleging untimely filing on account of such statements would assert a cause of action to estop the employer from pleading prescription.

On the basis of the evidence, as discussed hereinabove, we are of the opinion that the trial court could reasonably conclude that plaintiff was advised that compensation would be forthcoming without the necessity of instituting suit; that plaintiff relied on such representations and consequently did not file within the prescriptive period; and that plaintiff’s suit was not stale, but rather, filed within a reasonable time after the adjuster’s last contact with plaintiff. (See: Zeringue v. Liberty Mutual Insurance Co., 248 So.2d 83 (La. App. 4th Cir. 1971); writ denied 259 La. 61, 249 So.2d 203). Accordingly, under the liberal rules of construction afforded the workmen’s compensation statute, we find defendant estopped to plead the prescription of one year.

Since we hold that defendant is estopped to plead prescription as a bar to plaintiff’s claim we do not reach a consideration of plaintiff’s alternate contentions made in opposition to defendant’s prescriptive plea.

TOTAL AND PERMANENT DISABILITY

A review of the record reveals that when plaintiff returned to work on June 17, 1974 she was unable to perform the greater part of the physical tasks required of a technician in “Central Supply”. Plaintiff did in fact assume lighter physical duties at the recommendation of her physician, Dr. Dean. Dr. Dean discharged plaintiff on August 9, 1974 finding at this time that she had an overall permanent partial disability of 15%. Plaintiff testified that from the outset of her re-employment she experienced constant and severe pain in the lower part of her back. Plaintiff’s testimony in this regard was corroborated by her co-employees.

The plaintiff’s complaints of pain were further substantiated by the medical testimony of Drs. Cook and Cayer. Both physicians found plaintiff to be totally and permanently disabled from performing work as a supply technician. Dr. Cook, who treated plaintiff from the date of the accident testified that all of plaintiff’s complaints of pain were as a result of the injury she suffered in December of 1973 and the complications emanating therefrom. Dr. Cayer was in accord with these findings by Dr. Cook. Dr. Heinzk Faludi, a neurological surgeon also examined plaintiff. His report indicates that plaintiff was suffering from either a residual deep seated infection which might be due from the original surgery; a scar formation; or a disc reoccurrence possibly at a level of L-3 or L-4. Dr. Faludi stated that he could not give a more conclusive diagnosis without performing a myelo-gram.

The jurisprudence is well settled that an injured employee is not required to work in pain, and following an accident an employee who performs ordinary and usual tasks of his job in appreciable or substantial pain is considered “disabled”. Further, the ability to perform less strenuous work does not preclude a finding of disability to perform former duties, since a person is considered disabled if he cannot thereafter compete with able-bodied men in the same job market. Grimes v. Red Ball Motor Freight, Inc., 321 So.2d 885 (La.App. 1st Cir. 1975) writs refused La.1976, 325 So.2d 278; Farrar v. Guy Atkinson Co., 325 So.2d 893 (La.App. 2nd Cir. 1976).

The trial court determined that when plaintiff returned to her employ she did so in disabling pain which pain she suffered up until her resignation on February 28,1975. The trial court found plaintiff to be totally and permanently disabled. The record substantiates this conclusion of the trial judge.

The trial court judgment correctly awards plaintiff benefits for total and permanent disability, however, the judgment inadvertently fails to allow the defendant insurer a credit for the compensation payments previously made. We will amend the judgment to allow the insurer this credit.

ATTORNEY’S FEES AND PENALTIES

Having heretofore found that plaintiff’s claim was timely filed and that plaintiff is totally and permanently disabled we turn to the final issue presented: Did the trial court commit manifest error in its award to plaintiff of $2500.00 in attorney’s fees plus a penalty of twelve (12%) percent?

LSA-R.S. 22:658 provides in pertinent part:

“All insurers . . . shall pay the amount of any claim due any insured including any employee under Chapter 10 of Title 23 of the Revised Statutes of 1950 within sixty days after receipt of satisfactory proofs of loss from the insured, employee or any party in interest. Failure to make such payment within sixty days after receipt of such proofs and demand therefor, when such failure is found to be arbitrary, capricious, or without probable cause, shall subject the insurer to a penalty, in addition to the amount of the loss, of 12% damages on the total amount of the loss, payable to the insured, or to any of- said employees, together with all reasonable attorney’s fees for the prosecution and collection of such loss, or in the event a partial payment or tender has been made, 12% of the difference between the amount paid or tendered and the amount found to be due and all reasonable attorney’s fees for the prosecution and collection of such amount.”

The uncontradicted medical evidence shows that when plaintiff returned to work on June 17, 1974 she, at the recommendation of her physician, Dr. Dean, returned to lighter work duties, being unable to perform the usual physical tasks her job required. Obviously, the defendant determined, based upon the plaintiff’s return to work, that she was no longer entitled to compensation. Yet at the time of plaintiff’s re-employment she was still under the care of Dr. Dean who, not until August 9, 1974 discharged her and then with a 15% permanent partial disability. Subsequently plaintiff resigned from her employment on February 28,1975 with complaints of severe pain, submitting at this time a medical report from Dr. Cayer which found her to have an overall disability of 25%. Dr. Cay-\er’s report unequivocally stated that plaintiff was unable to perform the usual and customary tasks of a supply technician. Despite these uncontroverted medical reports, defendant did not resume the payment of compensation.

The above being considered we find defendant’s refusal to pay plaintiff compensation within 60 days after its receipt of satisfactory proof was arbitrary and capricious. Clearly, the medical evidence submitted left no question as to plaintiff’s total disability. See Morgan v. Lumbermen’s Mutual Casualty Company, 317 So.2d 7 (La.App. 1st Cir. 1975); Guillory v. Travelers Insurance Company, 294 So.2d 215 (La.1974).

It cannot be said that the legal dispute which arose following the filing of this claim beyond the one year prescriptive period gave defendant probable cause to refuse to pay the compensation claim previous to the expiration of the one year. On June 17, 1975, at which time the one year prescriptive period was to run, defendant had long since been arbitrary and capricious in its refusal to pay plaintiff’s claim. Accordingly, we agree with the trial court’s award of penalties and attorney’s fees.

The trial judge awarded plaintiff $2500.00 as attorney’s fees. Plaintiff has answered the appeal and contends that such award should be increased so as to compensate him for the additional legal work necessitated by this appeal. We have reviewed the record in this case and find the amount awarded by the trial court as attorney’s fees to be reasonable and sufficient to compensate plaintiff’s counsel for work on both the trial and appellate level.

For the reasons assigned the judgment appealed from is amended so as to allow the defendant a credit for the amount of workmen’s compensation payments made for the period from December 26, 1973 to June 17, 1974 and as amended such judgment is affirmed. The costs of this appeal are assessed to the defendant-appellant.

AMENDED AND AFFIRMED.

DOMENGEAUX, J., concurs in the affirmation, but would increase the attorney fees an additional $500.00 so as to compensate appellee for work done on appeal. Horn v. Vancouver, La.App., 322 So.2d 816.

      . Although there is a conflict in testimony concerning whether or not a commitment was made to reinstate compensation, this conflict was resolved by the trial court favorable to plaintiff. Our examination of the record reveals a reasonable evidentiary basis for this conclusion which we do not disturb. Canter v. Koehring Co., 283 So.2d 716 (La.1973).


source: Caselaw Access Project

author: CULPEPPER, Judge.

license: Public Domain

text:
    Alcide HANKS, Plaintiff and Appellant, v. Theresa MELANCON, Defendant and Appellee.
    No. 5687.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 10, 1976.
    Edwards, Stefanski & Barousse by Jean Pierre Lendais, Crowley, for plaintiff-appellant.
    McBride & Brewster by Robert R. McBride, Steven J. Dupuis, Lafayette, for defendant-appellee.
    Before CULPEPPER, WATSON and HUMPHRIES, JJ.
   CULPEPPER, Judge.

This is a suit for damages for personal injuries. The plaintiff was riding a bicycle along the side of a highway. Defendant motorist approached from the rear. Plaintiff contends defendant negligently signaled him to turn left across the highway in front of her. While crossing the highway, plaintiff was struck by another vehicle which was passing defendant from the rear. Daniel Mire, the driver of the passing vehicle, is a third party defendant.

The district judge decided that even assuming defendant signaled plaintiff to cross, plaintiff was contributorily negligent in not seeing the passing vehicle. From a judgment rejecting his demands, plaintiff appealed.

The substantial issue is whether plaintiffs failure to see the passing vehicle constitutes contributory negligence, barring plaintiff’s recovery.

The evidence shows that on July 3, 1974 at about 5:00 p. m., the plaintiff, a 63 year old man, rode his bicycle from his house to his mail box to pick up a newspaper. After reaching the mail box," plaintiff decided to ride his bicycle a short distance on Highway 724, which runs north and south in front of his house. Highway 724 is straight and has two lanes and a blacktop surface in the area where the accident occurred.

In a deposition which was offered into evidence at trial, plaintiff gave the following account of the accident: While riding his bicycle along the right side of the south bound traffic lane, plaintiff looked over his shoulder and saw a slowly moving “pickup truck” driven by a woman approaching him from the rear. Upon seeing the truck, the plaintiff stopped pedaling his bicycle and began pushing himself along slowly with his right foot while remaining seated on the bicycle. The driver of the truck then signaled him to cross in front of her by moving her right arm from right to left in front of her face. When this signal was given, the truck was practically stopped or barely rolling at a distance of about 24 feet behind •plaintiff. In response to the signal, plaintiff looked in both directions and crossed the south bound lane in front of the truck. Plaintiff stopped at the center line of the road, looked to the north and south for traffic, and began crossing the north bound traffic lane. While crossing the north bound lane, plaintiff was struck and very seriously injured by a vehicle driven by Daniel Mire, the third party defendant in this suit. Mire was traveling south in the north bound lane in an attempt to pass defendant’s slowly moving vehicle.

Hanks stated in his deposition that even though he looked north and south when he reached the center of the road, he did not see the Mire vehicle until he heard the screech of its tires immediately before the impact. Plaintiff admitted that there was nothing to prevent his seeing approaching traffic when he stopped at the center line and looked in both directions.

At trial, plaintiff modified his description of the accident by testifying that he did not stop at the center line of the highway, but instead attempted to cross both lanes without stopping.

Defendant testified that she saw plaintiff pedaling his bike on the edge of the road in the same direction that she was driving her 1973 Nova, not a pickup truck. She was aware that the Mire vehicle was about to overtake and pass her. She reduced her speed to permit the overtaking vehicle to pass before she reached plaintiff, her purpose being to avoid crowding either the bicycle or the passing car. As the Mire vehicle passed to her left, plaintiff turned left in front of her and proceeded across the south bound lane and into the north bound lane where the accident occurred. There was no impact with defendant’s vehicle.

Defendant denied signaling plaintiff to cross in front of her, and stated that plaintiff did not look back at any time immediately prior to crossing the road.

The trial judge did not decide the factual issue of whether defendant signaled plaintiff to cross the road. The trial judge did, however, determine that (1) defendant stopped at the center line of the road and looked in both directions before proceeding into the other lane and (2) that from the center line Hanks was in as good a position to see the approaching Mire vehicle- as was the defendant. On the basis of these facts, the trial court held that even if defendant did signal plaintiff across, plaintiff was con-tributorily negligent.

Bicycle riders on Louisiana highways are subject to the same duty applicable to the drivers of motor vehicles. LSA-R.S. 32:194. It follows that a bicyclist on a highway, as a motorist, has a never-ceasing duty to keep a proper lookout at all times. A bicyclist, as a motorist, must be certain, before executing a left turn, that the turn can be made without danger from normal overtaking or oncoming traffic. LSA-R.S. 32:104 A; Cormier v. Sinegal, 180 So.2d 567 (La.App.3rd Cir. 1965).

Plaintiff had two opportunities to observe the approach of the Mire vehicle. The first was when he looked north and south before crossing defendant’s traffic lane, and the second was before entering the other traffic lane. It is fundamental that failure to see that which should or could be seen is negligence. Plaintiff’s failure to observe the Mire vehicle on either of these two occasions constitutes contributory negligence under the circumstances of this case.

The thrust of plaintiff’s argument is that defendant’s signal relieved him from his statutory duty to observe the Mire vehicle. Even assuming, for the sake of argument, that the defendant did negligently signal plaintiff to cross the road in front of her, and that this signal was a legal cause of the accident, we nevertheless find plaintiff is barred by his own contributory negligence.

A signal from another motorist does not relieve a driver from a statutory duty to make his own independent observation of traffic conditions. Trinity Universal Insurance Company v. Nicholson, 104 So.2d 244 (La.App.2d Cir. 1958); Allstate Insurance Company v. Employers Liability Assurance Corporation, 98 So.2d 852 (La.App.2d Cir. 1957). See also 90 A.L.R.2d 1431, et seq. for cases from other states. Applying this rule to the present case, and assuming defendant gave plaintiff a signal to cross the road, this did not relieve .plaintiff of the statutory duty to observe for both oncoming and overtaking traffic before turning left across the highway. LSA-R.S. 32:104 A provides that no motorist shall turn right or left upon a roadway until the movement can be made with reasonable safety. Clearly, plaintiff violated this statutory duty.

Furthermore, there is no merit in plaintiff’s argument that he is relieved of the duty to see the approaching Mire vehicle because the Melancon vehicle obstructed his view. In the first place, the strict duty of observation imposed on a left-turning motorist required that plaintiff wait if his view was obstructed. In the second place, the facts show that plaintiff probably could have seen the Mire vehicle before he started his turn, and he certainly could have seen it when he reached the center of the highway.

For the reasons assigned, the judgment of the trial court is affirmed. All costs of this appeal are assessed against plaintiff-appellant.

AFFIRMED.

WATSON and HUMPHRIES, JJ., concur in the result.


author: HUMPHRIES, Judge.

text:
    Alvin BROUSSARD, Plaintiff-Appellee, v. SUBSURFACE COMPLETION SERVICE, INC., et al., Defendant-Appellants.
    No. 5694.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 10, 1976.

      Don L. Broussard, Lafayette, for defendant-appellants.
    Caliste Beard, Jr., and Stanford B. Gau-thier, II, Lafayette, for plaintiff-appellee.
    Before DOMENGEAUX, WATSON and HUMPHRIES, JJ.
   HUMPHRIES, Judge.

Defendants Subsurface Completion Service, Inc., (Subsurface) and its workmen’s compensation carrier Travelers Insurance Company (Travelers) appeal the judgment awarding plaintiff, Alvin Broussard, workmen’s compensation benefits of $65.00 per week, beginning September 14, 1973, for the period of his disability but not to exceed 500 weeks, together with legal interest on all past due amounts, all medical expenses related to the accident and costs of court. Plaintiff has answered the appeal asking that the judgment be affirmed and that attorney’s fees and penalties be assessed defendants for their arbitrary and capricious discontinuance of plaintiff’s compensation benefits. We affirm the trial court’s award and deny plaintiff’s prayer for attorney’s fees and penalties.

A brief summation of the facts is presented in order to outline the relationship of the litigants.

Plaintiff Alvin Broussard was injured on September 14, 1973 while working for Subsurface. The cause of the injury was the dropping of a vice-like tool weighing approximately 250 pounds on his left foot. As a result of this accident, Broussard sustained a fracture of two metatarsal bones just behind the big toe.

It was stipulated at trial that Broussard was injured in the course and scope of his employment and that he was entitled to $65 per week compensation benefits.

Following his injury, plaintiff consulted Dr. Lee Leonard who immobilized his left leg. This treatment proved ineffective and an operation called an arthrodesis (bone fusion in the area just behind the big toe) was performed on or about April 16,1974 by Dr. William Meuleman. Dr. Meuleman continued to treat plaintiff until sometime in July, 1974 when he released him to return to work. It was Dr. Meuleman’s opinion that the operation was a success and plaintiff had recovered. Compensation and medical expenses were paid to Broussard from the time of the accident until terminated on July 30,1974 following Dr. Meule-man’s report.

Following the doctor’s release plaintiff did not return to work for Subsurface because of pain in his ankle. The record reflects that he did return to the labor market and secured several jobs similar and dissimilar to the type of work he did at the time of his injury. However, plaintiff maintains that in all of these jobs he was hindered in the regular performance of his duties because of the recurrence of swelling and tenderness in his left foot.

In October of 1974, Broussard returned to Dr. Meuleman with the complaint that his left ankle had given way while he was running and he had fallen. Dr. Meuleman examined the patient, took x-rays and diagnosed his malady as a sprained ankle. It was the doctor’s opinion that the fusion site was still intact.

On November 27, 1974 plaintiff consulted Dr. Byron M. Unkauf, a certified orthopedic surgeon, about the continuing pain in his ankle. Based upon x-rays, Dr. Unkauf was of the opinion that the bone fusion had not united. He found false movement in the fusion on clinical examination. There was no doubt in the doctor’s opinion that Brous-sard was in pain and the limited mobility of the left foot would cause him trouble in climbing ladders and making other awkward movements. For some unexplained reason, Dr. Unkauf’s findings were not expressed to either plaintiff or defendants until he wrote a report which was received by Broussard’s attorney sometime in September, 1975. This was some ten months after Dr. Unkauf’s examination of Brous-sard and some three months after suit was filed.

On September 3, 1975 Broussard consulted Dr. Spencer Walton concerning an injury to his foot while he was employed by Superior Electric Wireline Company in August of 1975. This injury was incurred when Broussard fell some three feet stressing his left ankle upon impact. Dr. Walton during his examination, discovered that Broussard had a surgical scar on his foot indicating some type of operation. Dr. Walton’s x-rays revealed only a partial union of the attempted bone fusion. Evidently two of the bones had united but the third had not. It was Dr. Walton’s opinion that there never was a total union at the fusion site. He discovered motion in this area of the foot which produced tenderness and pain. He felt the dictated course of therapy was the use of a corrective shoe. If this conservative treatment failed, he recommended another operation.

Plaintiff obtained the shoes recommended by Dr. Walton but it did not relieve his pain.

He testified he has a tendency to be clumsy and suffers persistent pain when working. He is restricted in work such as not being able to climb ladders or carry heavy articles because of pain and a balance problem. Testimony revealed that Brous-sard has only a ninth grade education and no special training. This lack of education and training restricts him to the common labor market.

It is established jurisprudence that even though a workman who returns to substantially the same type of employment because of economic necessity may still be considered totally and permanently disabled if, after the return to employment, the laborer must function in substantial pain. Glidden v. Alexandria Concrete Co., 242 La. 626, 137 So.2d 894 (1962); Carroll v. Southern Casualty Insurance Company, 285 So.2d 370 (La.App. 3rd Cir. 1973); Chapman v. Travelers Insurance Company, 250 So.2d 248 (La.App. 3rd Cir. 1971). The trial court was of the opinion that the evidence, both expert and lay, indicated that Broussard was suffering from a disability and was in substantial pain. It is reiterated that both Dr. Walton and Dr. Unkauf who examined Broussard, after his release to return to work found by x-ray that there was a nonunion at the fusion site and, that this nonunion caused a lack of mobility and constant pain when stress was applied to the foot. Further, it is noted that Broussard still complained of pain even though he purchased and used the corrective shoes recommended by Dr. Walton. A determination by the trial court when supported by the evidence cannot be reversed on appeal.

Defendants assert, in the alternative, that the judgment should be reversed because the trial court failed to hold that the subsequent accident was the cause of Broussard’s disability. The jurisprudence holds that where continued disability is established, which relates back to the initial accident, the burden is on the employer to prove that some other accident caused the disability. Jagneaux v. American Universal Insurance Co., 231 So.2d 601 (La.App. 3rd Cir. 1970); Hull v. Liberty Mutual Insurance Company, 236 So.2d 847 (La.App. 1st Cir. 1970). The facts of the instant case speak for themselves. Dr. Unkauf who examined the plaintiff 10 months before the alleged second accident found non-union at the fusion site. Suit was filed three months before the alleged second accident. Finally Dr. Walton, who also found non-union after examining Broussard following the “second accident” of August 1975, was of the opinion that the second accident did not cause plaintiff’s disability. We believe the trial court to be correct in concluding that the second accident was not a factor contributing to plaintiff’s disability.

Pertaining to the question of penalties and attorney’s fees, the relevant facts are that following the operation Dr. Meule-man, the treating physician gave the employer and its insurer Travelers a report dated July 8, 1974, stating that Broussard’s injuries had healed and that he could return to work, unconditionally. No demands were made and no other physician’s reports were furnished Travelers until after suit was filed on May 30,1975. Plaintiff did not supply the report of Dr. Unkauf, dealing with his evaluation of Broussard’s disability, dated November, 1974 until sometime in September of 1975, over three months after suit was filed. Dr. Walton’s report, dealing with his diagnosis of Broussard’s malady, was not brought to the defendant’s attention until the doctor was sworn to testify at the trial.

Based upon this evidence we cannot say the trial court erred in denying penalties and attorney’s fees for the insurer’s cessation of payment of benefits as of July 30, 1974. Conner v. Travelers Insurance Company, 324 So.2d 903 (La.App. 3rd Cir. 1975); Levine v. Liberty Mutual Insurance Company, 305 So.2d 665 (La.App. 3rd Cir. 1974); Tyler v. Owens Illinois, Inc., 289 So.2d 893 (La.App. 4th Cir. 1974).

Cursory reading of R.S. 23:1201.2 indicates that penalties and attorney’s fees may not be recovered from an employer (in this case Subsurface Completion Services, Inc.) unless the initial liability is not covered by insurance. See Tyler v. Owens Illinois, Inc., 289 So.2d 893 (La.App. 4th Cir. 1974).

The decision of the trial court is correct in all respects.

AFFIRMED.


author: WATSON, Judge.

text:
    Davis J. DUCOTE, Plaintiff-Appellant, v. ROY O. MARTIN INDUSTRIES, INC., Defendant-Appellee.
    No. 5695.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 10, 1976.
    Riddle, Bennett & Ryland by Darrel D. Ryland, Marksville, for plaintiff-appellant.
    Gold, Hall, Hammill & Little by Leo Gold, Alexandria, for defendant-appellee.
    Before DOMENGEAUX, WATSON and HUMPHRIES, JJ.
   WATSON, Judge.

This appeal from dismissal of a petition for payment of physicians’ charges presents the issue of whether the defendant-employer, Roy 0. Martin Industries, Inc., should be required to pay the fees of two orthopedic surgeons to whom plaintiff, Davis J. Du-cote, was referred by his attorney.

There is no dispute about Ducote’s job-related accident on March 19, 1975, or the payment of weekly compensation benefits. Ducote was originally treated by Dr. D. M. Kingsley, an orthopedic specialist of Alexandria, and continued under his treatment during the period when he was seen by the two other physicians. Dr. Kingsley discharged Ducote as still disabled on January 23, 1976.

In the interim, the attorney representing Ducote referred him to Dr. William E. Smith of Baton Rouge in July of 1975 and to Dr. T. E. Banks of Alexandria in September of 1975. Both examined Ducote but sent him back to Dr. Kingsley for continued treatment. They submitted reports of their examinations to the attorney. Plaintiff incurred a bill with Dr. Smith of $147.50 and with Dr. Banks of $225. Payment of these bills was refused by the employer, and plaintiff filed this suit, contending that the refusal to pay was not only incorrect as a matter of law but also arbitrary and capricious justifying penalties and attorney’s fees.

The trial court, after hearing plaintiff’s testimony but no other witnesses, and after considering the medical reports submitted by the various physicians, decided the case adversely to plaintiff, holding as follows:

“There is no evidence that there has been any treatment in any way by either Dr. Banks or Dr. Smith. In fact, the reports are just the reverse. They gave an evaluation and sent Mr. Ducote back to Dr. Kingsley and sent copies of the report to Dr. Kingsley; therefore, under the law and the facts as presented, neither Dr. Banks or Smith are a treating physician in any way and the defendant company is then not responsible for the bills that are at issue in this particular lawsuit and not being responsible, then the company is certainly not responsible for any penalties and attorney’s fees and plaintiff’s suit is dismissed at plaintiff’s costs.” (TR. 69)

We find no error in the decision of the trial court. See Caldwell v. Exxon Corporation, 320 So.2d 319 (La.App. 4th Cir. 1975). Therefore, it is affirmed at plaintiff’s cost.

AFFIRMED.


text:
    MORGAN’S DISCOUNT CORPORATION, Plaintiff and Appellant, v. George A. BELOTE et ux., Defendants and Appellees.
    No. 5701.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 10, 1976.
    ■Albert J. Leger, Lafayette, for plaintiff and appellant.
    McBride & Brewster by Robert McBride, Lafayette, for defendants and appellees.
    Before HOOD, CULPEPPER and GUI-DRY, JJ.
   CULPEPPER, Judge.

This is a suit on a promissory note against which defendant pleads the prescription of five years. The trial judge sustained the exception and dismissed the suit. Plaintiff appealed.

The issues are: (1) Did defendant make any payments on the subject note between January 5, 1967 (the note’s accelerated maturity date) and May 13, 1975 (the date plaintiff filed this suit on the note)? (2) If such payments were made, did they interrupt the prescription of five years provided by Article 3540 of the Civil Code?

Plaintiff-appellant is the holder of a promissory note dated November 11,1966 in the sum of $6,673.20. This note was secured by a real estate mortgage and was payable in 60 equal monthly installments, commencing January 5, 1967. Included in the note is an automatic acceleration clause which provides, “failure to pay any one installment shall mature all remaining installments without the necessity of demand or default, they being expressly waived.”

According to ledger sheets introduced into evidence by plaintiff at the trial of the exception of prescription, defendant first defaulted on the note when he failed to pay the full amount of the first installment on January 5, 1967.

Plaintiff filed this suit on May 13, 1975 and defendant responded by filing an exception of prescription. The trial judge sustained the exception without giving reasons.

Plaintiff concedes that where a note is payable in monthly installments and contains an automatic acceleration clause, the note is fully matured and prescription begins running when the maker first defaults on the note. Dassau v. Seary, 158 So.2d 243 (La.App. 4th Cir. 1963); A Second Mortgage Company v. Gatlin, 233 So.2d 583 (La. App. 1st Cir. 1970). See Dainow, The Work of Louisiana Appellate Courts for the 1963-1964 Term, 25 La.L.Rev. 357 (1965). The plaintiff first defaulted on January 5, 1967 at which time the prescription period of five years began running. Since suit was filed more than five years after default, plaintiff has the burden of proving that prescription was interrupted.

At the trial of the exception only two witnesses testified: (1) The defendant and (2) the manager of Morgan’s Discount, the plaintiff. Plaintiff introduced the following business records to prove that defendant made payments on the note between 1968 and 1972: (1) Five receipts of payments on printed, numbered forms stating that payments of various amounts were received from Belote on these dated: February 3, 1969; October 16, 1969; October 12, 1970; October 12, 1971; and one receipt upon which the date is illegible. (2) A ledger sheet showing the dates and the amounts of payments made on the note including entries corresponding to the dates and amounts shown on receipts listed above. (3) A work sheet recording the dates that employees of plaintiff contacted defendant by telephone to discuss defendant’s account.

On cross-examination, defendant was asked whether he made the payments evidenced by each of the five receipts introduced at the trial of the exception. His testimony in response to these questions was equivocal. Defendant was asked whether he made the payment specified on the receipt of February 3,1969. He replied, “Oh, I don’t know about that particular payment.” Referring to the October 16, 1969 payment receipt, defendant said, “I can’t say which payment I made and which I didn’t, you know. I don’t think I could have made anything like that around that time.” When questioned about the October 12,1970 payment receipt, defendant replied, “Again, I can’t tell you.” With regard to the October 12, 1971 payment receipt, defendant equivocally remarked, “I don’t think I could have made that one, no sir.” Defendant never firmly denied making any of the payments evidenced by the written receipts and ledger sheets. Therefore, we conclude that defendant made payments on the note as late as October 12, 1970. The trial judge stated no opinion on this factual issue, as his judgment was not accompanied by reasons.

The question remaining is whether these payments interrupted the five year prescription period provided by Article 3540 of our Civil Code. Plaintiff argues that this question was answered in Collins v. Gill, 216 So.2d 620 (La.App. 4th Cir. 1968), writ refused 253 La. 644, 219 So.2d 176. In Collins, the defendant’s plea of prescription was based on the contention that under the provisions of an acceleration clause, a note fully matured upon default of the first installment and thus prescription had run when the suit was filed more than five years thereafter. The court held that prescription would be interrupted by payments made after the note matured. The rule laid down in Collins is based upon the fundamental principle that partial payment by the debtor after the note matures is an acknowledgment which interrupts prescription. LSA-C.C. Article 3520. In the present case, prescription was interrupted when defendant made a partial payment on the note in October of 1970. Suit was filed on May 13, 1975, within the five year prescription period. Therefore, the trial court erred in sustaining defendant’s plea of prescription.

For the reasons assigned, the judgment appealed is reversed and set aside. Judgment is now rendered in favor of the plaintiff overruling defendant’s exception of prescription. This case is remanded to the District Court for further proceedings in accordance with law and the views expressed herein. All costs of this appeal are assessed against defendant-appellee.

REVERSED AND REMANDED.


author: SAMUEL, Judge. LEMMON, Judge

text:
    Henry LEBATARD v. HIGHLANDS INS. CO. and Petro Services of Louisiana, Inc.
    No. 7349.
    Court of Appeal of Louisiana, Fourth Circuit.
    Aug. 6, 1976.
    Dissenting Opinion Nov. 16, 1976.
    Writ Refused Jan. 14, 1977.

      Badeaux, Discon, Cumberland & Barbier, J. Michael Cumberland, New Orleans, for plaintiff-appellant.
    Christovich & Kearney, C. Edgar Cloutier, New Orleans, for defendants-appellees.
    Drury, Lozes & Curry, James H. Drury, New Orleans, for intervenor-appellant.
    Before SAMUEL, LEMMON and STOULIG, JJ.
   SAMUEL, Judge.

Plaintiff filed this suit against Petroser-vice of Louisiana, Inc. and its liability insurer, Highlands Insurance Company, for damages resulting from an injury sustained by him on November 8,1973 while working at the American Cyanamid plant in Jefferson Parish. He was employed as a boilermaker by a company known as Lou-Con, Inc. Commercial Union Insurance Company, the compensation insurer of Lou-Con, intervened to recover workmen’s compensation benefits paid by it to plaintiff as a result of the industrial accident. Defendants answered, denying negligence on the part of Petroservice employees and pleading negligence on the part of plaintiff.

After a trial on the merits, there was judgment in favor of the defendants, dismissing both plaintiff’s suit and the intervention of Commercial Union. Plaintiff and the intervenor have appealed.

There is no dispute regarding the basic facts. On November 8, 1973 Lou-Con was performing work for American Cyanamid Company at its plant in Jefferson Parish as was Petroservice. Both companies were engaged in the process of cleaning and reconditioning groups of tubes which extended in a vertical position.

Plaintiff was working at a level below the area where Petroservice was performing its work, a part of which involved removal of heavy metal caps inserted in the upper end of the tubes to produce an opening by which the insides of the tubes could be cleaned. After the cleaning was accomplished and in accordance with instructions from American Cyanamid, Petroservice employees replaced the caps in an inverted position on the tops of the tubes, without securing the caps in place in any manner, as a signal that the cleaning had been completed and the next job could proceed.

Work continued in the area and equipment was moved. A strong vibration took place as part of the cleaning process and one of the caps fell, struck plaintiff as he worked at the lower level, and caused him to suffer the injuries in suit.

The trial judge’s holding is based on the plaintiff’s failure to prove the accident was caused by defendant negligence. Plaintiff argues the trial court committed error by so holding on the theory that when an individual places an object under its control in a position which he knows or should know could cause injury to another, he is liable even when the injury results from that act in concurrence with the act of another. In short, plaintiff argues Petroservice is liable for placing the caps in an unsecured inverted position atop the tubes and is responsible even if the cap which struck the plaintiff was knocked from its position by someone not employed by that defendant.

Defendants do not seriously quarrel with the theoretical basis of plaintiff’s argument or with the authorities cited by plaintiff. However, they argue plaintiff failed to prove the cap which struck him fell from an inverted position atop one of the tubes. Defendants show plaintiff’s witnesses did not know what caused the cap to come through the hole in the ceiling of the room in which plaintiff was injured, and the record is devoid of testimony establishing the cap fell from atop one of the tubes.

Defendants further rely on evidence in the record which shows caps like the one which struck plaintiff were not only located atop the tubes but were also situated at other places in the room above plaintiffs work area and these caps were handled by employees of American Cyanamid working in the upper room. They concede Petroser-vice employees initially placed the caps atop the tubes after removing a catalytic substance contained therein. Thereafter, employees of plaintiff’s employer removed some of the tubes from the area and in so doing they removed the caps and “set them on the side.” There is no evidence showing what the employees of plaintiff’s company did with the caps after they replaced the tubes, but there is evidence showing that, in the meantime, employees of American Cyanamid also worked in the upper room refilling the refurbished tubes with a fresh supply of the catalytic substance removed therefrom, a process which required handling of the tube caps.

In a civil case the plaintiff must prove his case by a preponderance of the evidence. This has been construed to mean the plaintiff must prove the existence of a disputed fact is more probable than not. As has been pointed out, the record shows employees of three different companies handled the tube caps prior to plaintiffs injury. The record is devoid of evidence indicating or tending to indicate the cap which fell and struck plaintiff was one placed by defendant’s employees as opposed to the employees of plaintiff’s company or of American Cyanamid.

In the cited Lombard case the Supreme Court stated circumstantial evidence may be used to meet a plaintiff’s burden of proof, but such evidence must exclude other reasonable hypotheses with a reasonable amount of certainty. In the present case there is no evidence to indicate it is more likely than not that a cap last handled by Petroservice employees struck the plaintiff. It is equally possible that a cap last handled by employees of plaintiff’s own company (admittedly those caps were placed in positions other than on top of the tubes), or by employees of American Cyanamid, could have been the cap which fell and caused plaintiff’s injuries.

It is axiomatic in Louisiana that findings of fact by a trial court are entitled to substantial weight. In the present case the trial judge concluded after hearing all the evidence that plaintiff did not bear the burden of proving a causal connection between the activities of Petroservice employees and the plaintiff’s injury. The record shows no error on the part of the trial judge, and his judgment must be affirmed.

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

AFFIRMED.

LEMMON, J., dissents from the denial of application for rehearing and assigns reasons.

LEMMON, Judge

(dissenting).

Petroservice’s employees vacuumed catalyst from the 336 tubes in the four-day period between November 5 and November 8, leaving the caps on top of the tubes. Lou-Con’s employees came along after Pe-troservice’s operation, cut out and removed the tubes, two or three at a time, and then replaced the tubes. American Cyanamid’s employees followed, adding new catalyst.

At the time of the accident American Cyanamid was using a vibrator to settle catalyst in a tube, about 20 feet from the hole above plaintiff. No one else was within 20 feet of the hole.

According to Petroservice’s employee Kruebbe, there were tubes at the time “on both sides of the hole” from which the catalyst had already been removed, with “caps sitting upside down on top of the tubes”. A wall was to the right of the hole, and to the left was a row of tubes with inverted caps on top. This testimony was uncontradicted.

The evidence thus shows that Petroser-vice’s employees set the caps on top of the tubes and that tubes with caps on top surrounded the hole under which plaintiff was working. The most plausible explanation of the accident, therefore, is that a cap, placed by Petroservice in a precarious position, fell through the hole.

Other explanation are possible, but since no one was in the vicinity of the hole at the time and since no evidence indicates that anyone else left caps in precarious positions during another stage of the operation, this record points to Petroservice’s negligence as the most probable cause of the accident.

      . Incorrectly referred to in plaintiffs petition and the title as “Petro Services of Louisiana (La.), Inc.”

      . Plaintiff relies heavily on Dixie Drive-It Yourself Sys. v. American Beverage Company, 242 La. 471, 137 So.2d 298, and Mason v. Herrin Transfer & Warehouse Co., La.App., 168 So. 331.

      . See Lombard v. Sewerage & Water Board of New Orleans, 284 So.2d 905 (S.Ct.1973).


text:
    Isear WESLEY v. STATE of Mississippi.
    No. 49419.
    Supreme Court of Mississippi.
    Nov. 9, 1976.
    Mark H. Shenfield, Jackson, for appellant.
    A. F. Summer, Atty. Gen., by Catherine Walker, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before. INZER, P. J., and SMITH and BROOM, JJ.
   Reversed and remanded.

GILLESPIE, C. J., PATTERSON, P. J., and ROBERTSON, SUGG, WALKER and LEE, JJ., concur.


text:
    Billy Joe HALL, and Joe W. Stedman, d/b/a Stedman & Hall, Realtors v. James A. BEESLEY and C. L. Huff.
    No. 48975.
    Supreme Court of Mississippi.
    Nov. 9, 1976.
    Adams, Forman, Truly, Ward, Smith & Bramlette, David Bramlette, Natchez, for appellants.
    Brunini, Everett, Beanland & Wheeless, John C. Wheeless, Jr., Vicksburg, for appel-lees.
    Before GILLESPIE, C. J., SUGG and BROOM, JJ., and WRIGHT, Commissioner.
   AFFIRMED.


text:
    Henry H. DORSEY and Miller Transporters, Inc. v. Mrs. Missouri MYERS.
    No. 48977.
    Supreme Court of Mississippi.
    Nov. 9, 1976.
    Daniel, Coker, Horton, Bell & Dukes, Jackson Henderson Abies, III, Jackson, for appellants.
    George G. Williamson, Edward A. Williamson, Mendenhall, for appellee.
    Before GILLESPIE, C. J., and SUGG and BROOM, JJ.
   AFFIRMED.


text:
    Andrew PARKER v. STATE of Mississippi.
    No. 49330.
    Supreme Court of Mississippi.
    Nov. 9, 1976.

      Lamar Conerly, Jr., Hazlehurst, for appellant.
    A. F. Summer, Atty. Gen., by Ben H. Walley, Asst. Atty. Gen., Jackson, for ap-pellee.
    Before GILLESPIE, C. J., and SUGG and BROOM, JJ.
   AFFIRMED.


author: NEAL B. BIGGERS, Commissioner,

text:
    Ira GENTRY, Jr. v. STATE of Mississippi.
    No. 49304.
    Supreme Court of Mississippi.
    Nov. 9, 1976.
    John E. Shaw, Kosciusko, for appellant.
    A. F. Summer, Atty. Gen. by Pete J. Cajoleas, Sp. Asst. Atty. Gen., and Ben H. Walley, Asst. Atty. Gen., Jackson, for ap-pellee.

      Before GILLESPIE, C. J., ROBERTSON and LEE, JJ., and NEAL B. BIGGERS, Commissioner.
   NEAL B. BIGGERS, Commissioner,

for the Court:

Ira Gentry, Jr., was convicted in the Circuit Court of Attala County, Mississippi on a charge of forcible rape. In its verdict the jury fixed the sentence at life imprisonment.

On appeal, appellant contends that the trial court committed reversible error in three areas, to-wit: (1) by denying that part of a motion for discovery made by the defendant in which the defendant sought to have a slide, containing alleged live sperm taken by a medical doctor from the vaginal tract of the prosecutrix shortly after the alleged rape, turned over to the defendant for a laboratory analysis to be made by experts of his choosing; (2) by allowing an in-court identification of the defendant by the prosecutrix after the defendant had been earlier identified by her at a show-up conducted by police officers on the day of the alleged attack, when the defendant was without the assistance of legal counsel, and (3) by not granting a directed verdict at the close of all the evidence.

The prosecutrix, a sixteen year old girl from out of the State who was visiting her grandmother in Kosciusko, Mississippi, testified that on July 16th, 1973, between 8:45 A.M. and 9:15 A.M., she went onto a vacant lot near her grandmother’s house to look for tree stumps suitable for making patio furniture. She testified that when she came onto the lot she sensed that someone was behind her, and she turned around and saw a man approximately one step behind her. She testified further that the man asked her if she wanted to have sex with him and that he would give her five dollars. She testified that she answered, “No,” and started walking back off the lot, and that the man grabbed her and pushed her down. She testified that after she was down she screamed and the man raised his hand and told her to shut up. She testified that she thought he might kill her if she continued screaming, so she started talking to him in an effort to dissuade him from continuing, but that he ordered her to take off her pants. When she refused he put his hand around her throat and started squeezing until she passed out. She testified she regained consciousness and found her pants off, the appellant’s pants down and that she could “feel him,” and that he later pulled off her shirt and bit her on her breasts. She testified she faked unconsciousness because of fear until the man got up and she heard him walk away.

After the attack as described by the pros-ecutrix, she ran to her grandmother’s house screaming and the police were called. She gave the police a description of the man she said attacked her, saying he was a black man approximately fifty years old, medium build, with a tooth missing in front. The police advised the girl’s relatives to take her to a doctor for an examination, and the police then proceeded to look for suspects, using the description given them by the young girl.

Dr. C. F. Lacey, a Kosciusko physician, testified that he examined the prosecutrix at the hospital emergency room on the morning of the alleged attack, that he found her to be crying, that she had bruises on her neck, and that upon a pelvic examination and microscopic examination of a smear taken from the vaginal tract he found live sperm indicating a penetration of the vagina.

W. W. Cummings, a Kosciusko City policeman, was called as a witness by the appellee and testified that he answered the call for a policeman to come to the grandmother’s house and arrived there to find the prosecutrix nervous and crying, and that he observed marks on her neck. After hearing her description of the rape and of her alleged assailant, he was aware that Ira Gentry, the appellant, had been given the job of clearing the timber from the vacant lot in question in return for the timber, and that as of that day the appellant had not completed his work. Officer Cummings further testified that about 4:30 P.M., on the day of the alleged attack, he received a telephone call from the appellant in which the appellant stated he understood the police were looking for him and he wanted to help clear up the matter. Officer Cummings then sent police officer Hugh Ballard to drive the appellant to the house where the prose-cutrix was for the purpose of an identification of the appellant by the girl or elimination of him as a suspect if she did not identify him. Testimony was given by officer Cummings that earlier in the day three other men fitting the general description of the man who attacked prosecutrix were taken individually to the grandmother’s house for identification purposes, and the girl positively stated that none of those men was the man who attacked her. Upon the appellant being brought to the house, the girl did identify him as her assailant. The appellant was arrested and indicted on a charge of forcible rape.

Prior to the trial, the appellant made a motion for discovery of evidence and information in the possession of the state which included, among other things, a request to inspect the laboratory slide used to determine if sperm were present in the prosecu-trix on the day of the alleged rape, so that the slide might be examined by the defendant’s own pathologist. This motion was filed with the court on September 7th, 1973, approximately seven weeks after the slide was prepared by Dr. Lacey. The trial judge sustained that part of the motion relative to production of statements made by the appellant and production of all items taken from the appellant at the time of his arrest and incarceration. The remainder of the motion was denied, thereby denying the appellant the opportunity to examine the slide prepared by Dr. Lacey.

At the trial the prosecutrix positively identified the appellant as the man who attacked and raped her in the vacant lot on July 16th, 1973.

In his defense, the appellant offered the testimony of himself and two others, Annie Mae Triplett and Ella Dean Triplett, all of whom testified that the appellant could not have committed the act charged because he was in the house of Annie Mae Triplett from the night of July 15th, until around noon on July 16th, the alleged rape having occurred on the morning of July 16th, around 9:30 A.M. The defendant also called Mary Brown to the stand. She testified that she went to the house of Annie Mae Triplett about noon on the day in question and that Ira Gentry was there with Annie Mae Triplett.

The appellant’s first assignment of error is that the trial court was in error in denying the appellant access to the slide prepared by Dr. C. F. Lacey and used by Dr. Lacey as a basis for testifying that mobile spermatazoa were present in the vaginal tract of the prosecutrix shortly following the alleged attack. The appellant and the appellee cite the leading cases of McCraw v. State, 260 So.2d 457 (Miss.1972) and Armstrong v. State, 214 So.2d 589 (Miss.1968), both of which hold that an accused’s request for production or inspection of tangible evidence in the possession of the prosecution lies within the sound discretion of the trial court.

In Armstrong v. State, the trial court refused to grant the defendant’s motion for inspection and production of certain photographs in possession of the state. After an extensive review of the authorities this Court said that:

[Although the trial judge has discretionary power in determining whether or not tangible evidence in the possession or under the control of the prosecuting attorney should be given to the defendant for his inspection, nevertheless, the defendant should be permitted to inspect tangible evidence which may be used against him or which may be used in his defense. 214 So.2d 596.

However, the Court in Armstrong then found that the denial of the right to inspect the requested evidence was not prejudicial to the defendant because even if there had been an early inspection of the tangible evidence it would not have changed the course of the trial or influenced the verdict of the jury. Thus, this Court said in Armstrong if the denial was error, it was not reversible error and the conviction was affirmed.

In this case the Court, while it feels the better practice would have been to provide the defendant with any physical evidence used in scientific tests as the basis of testimony against him, does not find reversible error under these circumstances in the failure to do so, for several reasons. First, the defendant was not contesting that the young girl had been raped by someone. His entire defense was what is commonly referred to as an alibi. His entire case was built around testimony of himself and others that on the morning of July 16th, 1973, he was not on the vacant lot where the assault took place. Secondly, the slide was prepared on July 16th, 1973. The request to have the slide inspected by a pathologist of the defendant’s choosing was made on September 7th, 1973. The appellant did not advise either the trial court, in his motion for a new trial, or this Court what he would expect to prove by an examination of the slide and how he would be prejudiced by the absence of an examination. Of course, the live sperm which Dr. Lacey testified he observed on the morning of July 16th would have died long before the motion to inspect was even made by the appellant, even if the slide had been maintained for use as an exhibit, but it was not shown at any time that Dr. Lacey kept the slide after he examined it microscopically. The slide, if it still did exist at the time of the trial, was not brought to court nor offered into evidence, nor was there any reason for it to be. It is of the category of physical evidence whose evidentiary value is fleeting. For these reasons the Court is of the opinion that this assignment of error is without merit.

The appellant also assigns as error the allowing of the prosecutrix to make an in-eourt identification of the defendant after she had identified him at a show-up on the day of the alleged attack at a time when the defendant was without the assistance of counsel. The Court is of the opinion that this assignment of error is without merit for the reason that this Court and the United States Supreme Court have held consistently that the constitutional right to counsel does not attach to a pre-indictment show-up performed for the purpose of including or ruling out a suspect as a possible perpetrator of a recent criminal act, provided that the show-up is not so unduly suggestive as to taint it. There is no evidence here that when officer Ballard arrived at the house of prosecutrix’s grandmother with the appellant that anyone in any way suggested to prosecutrix that she should identify the appellant as her attacker. To the contrary, as far as the record in this case is concerned, the procedure followed in the show-up of the appellant was no different from that used in the three previous show-ups in which the prosecutrix declined to identify any of the three suspects as her attacker. This Court has recently spoken to the matter of pre-indictment identification in Cox v. State, 326 So.2d 794 (Miss.1976):

The right to counsel at a lineup proceeding as held in United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967), was thereafter specifically limited to a post-indictment situation in which a lineup is held after the formal initiation of judicial criminal proceedings. Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972). This Court has adopted the rule of Kirby and held that the right to counsel does not apply to pre-indictment lineups. Howard v. State, Miss., 319 So.2d 219 (1975); Hobson v. State, 285 So.2d 464 (Miss.1973); Allen v. State, 274 So.2d 136 (Miss.1973); Chandler v. State, 272 So.2d 641 (Miss.1973). 326 So.2d 794, 795.

Appellant argues that Kirby should not apply here because in this case the police were looking for the appellant and their prior knowledge about the appellant working in the vacant lot where the alleged attack occurred and fitting the general description given the police by the girl made him a named suspect. We are of the opinion that these circumstances do not take this case out of the general rule announced in Cox v. State, supra, as to pre-indictment identification. Moreover, the record reflects that the in-court identification of the appellant by the prosecutrix was not based upon her seeing him at the show-up, but upon her observation of him, as she testified, for some twenty minutes at the time of the alleged attack.

The appellant also argues that the trial court erred in refusing to grant a directed verdict at the close of all the testimony. The appellant argues to the Court that his alibi defense was uncontradicted and called for a finding of not guilty. The record shows that the appellant’s alibi was directly contradicted by the prosecutrix and therefore created an issue for the jury as to the credibility of the witnesses,, and the trial court was correct in denying the motion for a directed verdict.

The Court finding no prejudicial error in the areas raised by the appellant,- and finding the verdict to be within the evidence, is of the opinion that the verdict should be and is affirmed.

AFFIRMED.

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

      . Sitting pursuant to Chapter 430, Laws of 1976. The above opinion is adopted as the opinion of the Court.


author: BERT H. JONES, Commissioner,

text:
    Marvin Earl GREER and Janie Greer Murphy v. Mrs. Ruby Rivers HIGGINS et al.
    No. 48944.
    Supreme Court of Mississippi.
    Nov. 9, 1976.
    Wilroy, Hagan & Lee, William F. Hagan, Hernando, for appellants.
    James W. Amos, Olive Branch, for appel-lees.
    Before INZER, P. J., SMITH and BROOM, JJ., and JONES, C.
   BERT H. JONES, Commissioner,

for the Court:

This is an appeal from a decree of the Chancery Court of Tate County dismissing appellants’ Bill of Complaint to cancel a deed. Mr. Earl Greer departed this life on June 20, 1970. Mr. Greer in his lifetime was married on two occasions. By his first marriage Mr. Greer had five children, to-wit: Ruby Rivers Higgins, Mamie Lee Hawks, Sadie G. Anglin, Virginia G. Williams and Forest B. Greer. The said children of the first marriage are the appellees in this case. After the termination of his first marriage, Mr. Greer married Annie Bell Greer and to this marriage were born Marvin E. Greer and Janie Greer Murphy, who are the appellants in this case.

After the death of Mr. Greer his heirs were under the impression that he had died intestate. At the time of his death Mr. Greer owned a 39 acre tract of land and also an undivided one-half interest in another 40 acre tract directly to the north of the 39 acre tract, all in Tate County, Mississippi. The remaining undivided one-half interest in the 40 acre tract was owned by his second wife, Annie Bell Greer.

On September 30, 1970, all of the heirs of Mr. Greer appeared in the office of Mr. Nat Trout, an attorney, apparently to discuss their respective rights in and to the estate of Mr. Greer. They were advised by Mr. Trout that if Mr. Greer died intestate that his widow of the second marriage and all of his children would inherit and share equally in any property owned by him at the time of his death. After receiving this advice, all of the heirs decided to divide the land owned by Mr. Greer among the heirs. Quit Claim Deeds were accordingly prepared by Mr. Trout to accomplish this purpose. One deed conveyed to the children of the first marriage an agreed portion of the land. This deed conveyed 37V2 acres out of the 79 acre tract. Another deed conveyed to the widow an agreed portion of land which conveyed to her 27x/2 acres out of the 79 acre tract. Another deed conveyed to one of the children by the second marriage an agreed portion of land conveying llh acres, and the remaining deed conveyed to the other child by the second marriage an agreed portion of land conveying 6V2 acres out of the 79 acre tract. All of the deeds were dated September 30, 1970, and each contained the following recital:

The Grantors herein along with the Grantees constitute and are all of the heirs at law of Earl Greer, deceased, who died intestate and the purpose of this deed is to effect a division of all real property in which the said Earl Greer had an interest at the time of his decease, and which division has been agreed upon by all of the heirs.

In March 1974 the children of the first marriage, the appellees herein, had an opportunity to sell the portion of land which had been conveyed to them by the September 1970 deed. The appellees had decided to accept the offer that had been made to them and preparations were under way to close the transaction. Before the sale was closed, however, it came to the knowledge of the parties that Mr. Earl Greer had left a will. A Mr. Wilfred L. “Snooks” McElroy, a witness presented by the appellants, testified that in March 1970 he had an uncle, Vernon Greer — the record showed no relation to Earl Greer — who was in the hospital and Mr. Vernon Greer asked Mr. McElroy to go to the Bank of Olive Branch and transact some business for him. Mr. McEl-roy contacted a Mr. Bruce Payne, then an employee of that bank, and while searching for the papers of Mr. Vernon Greer, Mr. McElroy testified that Mr. Payne showed him an envelope that had marked on the outside, “Last Will and Testament of Earl Greer to be opened by Bruce Payne at my death.” Mr. McElroy testified that along about March 1974 that it came to his attention that the heirs apparently still had no knowledge of the will of Mr. Earl Greer. Mr. McElroy took steps to assure that his knowledge in regard to the existence of the will was communicated to all of the heirs. This resulted in the will being discovered and the proposed sale by the appellees was stopped. The will of Earl Greer was duly admitted to probate and there is no contest in reference to it. The will of Mr. Greer is dated November 11, 1958. By its terms he devised all of his interest in the 79 acre tract to his second wife and the two children of the second marriage. He devised another 40 acre tract which he then owned to the children of his first marriage, but prior to his death this 40 acre tract was sold and disposed of by Mr. Greer.

The widow of the second marriage and her two children filed their bill of complaint to cancel the deed which they had executed on September 30 to the appellees as aforesaid. The complainants alleged that one or more of the appellees had knowledge of the will when the deeds were executed in September 1970 and fraudulently neglected to reveal knowledge thereof. Complainants further alleged that they were entitled to relief on the ground of failure of consideration and mistake.

Subsequent to the filing of the Bill of Complaint, Mrs. Annie Bell Greer departed this life intestate and the cause was thereafter revived in the name of her two children and only heirs, who are now the appellants herein. The appellees filed their answer in which they admitted that they all believed that their father had died intestate and denied that any of them had any knowledge of the will when the deeds were executed. Appellees denied that appellants were entitled to have canceled the deed which was executed to them.

There was some slight testimony by one of the appellants, Janie Greer Murphy, that one of the appellees, Forest Greer, admitted to her, her brother Marvin E. Greer and her mother that he had knowledge of the existence of the will, but did not know of its contents at the time of the execution of the deeds. This testimony was denied by the appellee, Forest Greer, and was weakened by the testimony of other witnesses including that of the appellant Marvin E. Greer, who failed to corroborate the testimony of his sister on this particular issue. The chancellor found that no fraud was committed by any of the appellees and this finding is not contested by the appellants. On this appeal appellants seek reversal on the ground of failure of consideration and mutual mistake of fact.

In our opinion, the issue of mutual mistake of fact is the determinative issue in this case. We will, therefore, confine our subsequent discussion to that issue.

At the conclusion of the case the chancellor took the cause under advisement. Thereafter the learned chancellor rendered a lengthy and comprehensive opinion. In his opinion the chancellor gave consideration to the issue of mutual mistake of fact but stated that in his opinion the case is controlled by the case of Jackson v. Rutledge, 231 So.2d 803 (Miss.1970). The chancellor declined to cancel the deed executed to the appellees and dismissed the Bill of Complaint.

In our opinion this case is distinguishable from Jackson. In Jackson the issue of mutual mistake of fact was not raised or discussed in any manner. The sole issues in that case were fraud and failure of consideration. In Jackson neither of the parties were heirs of the decedent. Mrs. Jackson was a niece of the deceased husband of the decedent and Rutledge was the divorced husband of a niece of the decedent. Mrs. Jackson was reared by the decedent and her husband and lived with them until she was twenty years of age when she married. After her marriage, Mrs. Jackson moved to Pascagoula and had lived there for twenty-two years at the time of the death of the decedent. After the marriage between the niece of the decedent and Rutledge was dissolved by divorce, Rutledge continued to live in the home of the decedent and was living there on the date of the death of the decedent. In such a situation, the only manner in which either Mrs. Jackson or Rutledge could acquire any interest in the estate of the decedent was through a will executed by her. It seems to us, therefore, that in Jackson the parties of necessity had the possibility of a will in mind when they executed the deeds and assignments to each other, otherwise nothing could have been accomplished by their acts. In the case now before us, none of the parties thought that Mr. Greer had left a will.

In the case of Nabours v. Cocke, 24 Miss. 44 (1852), the Court said:

We are satisfied that both parties entered into the compromise with the distinct understanding and belief that a forthcoming bond had been given by Atkins in the suit of N. & J. Dick & Co. against him, upon which Jester Cocke, Alfred Mullins and Stephen Cocke had become sureties; and that the' same had been forfeited, and existed as a statutory bond, having the force and effect of a judgment against the obligors thereto. In this we have seen they were mutually mistaken; and, as the compromise was made under a mistake of such a material fact, we think it should have been set aside and that the money paid by Mullins, with interest, should be refunded and his note surrendered to his administrators. (24 Miss, at 54).

In 17 C.J.S. Contracts § 144, at 894, it is said:

A mutual mistake [of fact] is one common to both parties to a contract, each laboring under the same misconception; more precisely, it is one common to both or all parties, wherein each labors under the same misconception respecting a material fact, the terms of the agreement, or the provisions of the written instrument designed to embody such agreement. The mistake may apply to the nature of the contract, the identity of the person with whom it is made, or the identity or existence of the subject matter; but in order to relieve a party from liability on the contract, the mistake must relate to a material fact, past or present. Misrepresentation or fraud is not essential to proof of a mutual mistake.

There can be no doubt that when the parties executed the deeds to each other in September 1970 they were all laboring under the mistaken belief that Mr. Greer had departed this life intestate. There can be no doubt that the mistake was mutual and there can be no doubt that the mistake was material. The deeds would not have been executed but for the mistaken belief as to the non-existence of the will.

We are, therefore, of the opinion that the facts of this case present a clear case for the application of the doctrine of mutual mistake of fact and that, accordingly, the deed executed by the appellants and their mother to the appellees should be cancelled and set aside.

Appellees contend that the September 1970 deeds were executed as a result of a family settlement and cite the case of Pierce v. Garrett, 142 Miss. 641, 107 So. 885 (1926). Appellees also contend that the provisions of Section 89-1-39, Mississippi Code 1972 Annotated, governing quit claim deeds are applicable in this case. We find no merit in either of these contentions.

For the reasons stated the decree is reversed and judgment will be entered here granting the relief prayed for in the Bill of Complaint.

REVERSED AND RENDERED.

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

      . Sitting pursuant to Chapter 430, Laws of opinion of the Court. 1976. The above opinion is adopted as the


author: PATTERSON, Presiding Justice,

text:
    Julian CUEVAS v. STATE of Mississippi.
    No. 49213.
    Supreme Court of Mississippi.
    Nov. 9, 1976.

      Dannye L. Hunter, Forest, for appellant.
    A. F. Summer, Atty. Gen., by Wayne Snuggs, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before PATTERSON, SUGG and WALKER, JJ.
   PATTERSON, Presiding Justice,

for the Court:

Julian Cuevas was convicted of kidnapping and sentenced to thirty years in the state penitentiary. He appeals from this conviction and sentence by the Circuit Court of Scott County. The present issue is whether asportation was sufficiently proved to sustain the charge of kidnapping.

On the morning of April 17,1975, Cuevas, a prisoner in the Scott County Jail, confronted Joe Townsend, the jailer, with a pistol and directed that he be accompanied downstairs to the sheriff’s office. On reaching the office Townsend escaped, leaving Cuevas in the presence of several people, one of whom was Donald Gladney, a highway patrolman. Cuevas forced Glad-ney to accompany him to an automobile in a nearby lot where Gladney also escaped.

Cuevas then crossed the street to a building occupied by an automobile agency. He there encountered Hardin and McKee, employees of the agency, engaged in conversation at the service entrance to the building. He accosted them with the pistol demanding transportation, but before this could be accomplished, Jimmy Derrick arrived on the scene and McKee escaped. Hardin was then directed, at gunpoint, to the “parts department” of the building where he and another employee were held as Cuevas’ prisoners for nearly two hours. During this time they were visible through a plate glass window.

Once inside, Cuevas spoke to someone on the telephone, apparently his wife, and during this conversation advised his victims: “If my wife says turn you all loose, I will turn you loose. If she says kill you, I will kill you.” No other threats were directed to the hostages although both later expressed continuing fear for their lives during the ordeal.

The sheriff responded to the situation and in conjunction with a minister finally succeeded in effectuating Cuevas’ surrender by assurances of safe conduct to the county jail. The appellant was convicted for kidnapping Hardin, precipitating this appeal.

The record reveals that Hardin was directed at gunpoint to move from the entrance of the service department to the “parts department” of the building. The distance is uncertain, but was confined to the premises occupied by the automobile agency.

In support of his contention that an essential of kidnapping had not been proved because Hardin was not removed from the premises, the case of Aikerson v. State, 274 So.2d 124 (Miss.1974), is cited. In Aikerson the appellant was charged with kidnapping by an indictment designating the unlawful acts, “. . . did . . . forcibly seize and confine one Mary Angelo, a human being, without the consent and against the will of the said . . . ” We noted particularly that a clause of the kidnapping statute, “with intent to cause such person to be secretly confined or imprisoned against his or her will,” was omitted from the indictment. We observe no such omission in this indictment. Aikerson dealt largely with the construction of our kidnapping statute necessitated by the omission of a “comma” in the enactment leaving the legislative intention somewhat ambiguous. We held the “comma” could be inserted by the Court in order to make the legislative intention clear, stating:

We are constrained, therefore, to hold that a comma should have been placed in Section 2238, Mississippi Code 1942 Annotated (1956) after “or shall inveigle or kidnap any other person (,)” so that the following clause “with intent to cause such person to be secretly confined or imprisoned against his or her will,” is a part of the entire sentence and refers to “forcibly seize and confine” as well as to the clause “or shall inveigle or kidnap any other person.” Moreover, it is clear that in order for one to be guilty of the crime of kidnapping, the victim must be unlawfully removed from a place where he has a right to be, to another place. (274 So.2d at 128) (Emphasis added.)

The argument for reversal is simply that no kidnapping occurred because Cuevas did not remove Hardin from the premises of his employment, a place where he had a right to be, to another place.

He contends this Court, through Aiker-son, supra, adopted a rule whereby a peripatetic kidnapper, foiled by circumstances, who cannot transport his victim beyond the locale in which he is forcibly detained, has not committed the crime of kidnapping under Mississippi Code Annotated section 97-3-53 (Supp.1974). We do not understand Aikerson to support this rationale though we did state: “The victim must be unlawfully removed from a place where he has a right to be, to another place.” The argument overlooks another clause of the statute, “with intent to cause such [other] person to be secretly confined or imprisoned against his or her will,” which, to reiterate, was omitted from the indictment in Aiker-son. That indictment was therefore invalid because it did not charge confinement or imprisonment against the victim’s will as specified in the' statute nor did it include reference to asportation, a common law essential of kidnapping. It was therefore de-murrable as an indictment for kidnapping, We are not confronted with similar circumstances because the present indictment charges “imprisonment against the will of Charles Hardin,” and therefore the question of asportation is not as critical to the validity of this indictment as it was , in Aikerson. We are of the opinion the evidence was sufficient to support Cuevas’ conviction of kidnapping.

Moreover, the present trend by most authorities is not the distance of asportation in kidnapping, but rather the fact of asportation as it relates to the unlawful activity. If forcible detention or movement is merely incidental to a lesser crime than kidnapping, such confinement or movement is insufficient to be molded into the greater crime of kidnapping. An illustration might well be a strong-armed robbery where the victim is detained and perhaps moved a few feet while being relieved of his wallet. The detention and movement would not support kidnapping albeit with force and unlawful. On the other hand, if the confinement or asportation be not merely incidental to a lesser crime, but a constituent part of the greater crime, the fact of confinement or asportation is sufficient to support kidnapping without regard to distance moved or time of confinement.

Cuevas’ purpose in seizing and detaining Hardin was obviously to make good his escape. The detention was not merely incidental to another and lesser crime. It was a necessary constituent of the crime. The confinement and movement of Hardin by force from the service entrance of the building to the parts department of the building was sufficiently proved to support Cuevas’ conviction. See People v. Adams, 389 Mich. 222, 205 N.W.2d 415 (1973), for a well-reasoned case persuasive to the above point of view.

The other assignments of error relate to the same issue and are disposed of by the above statements.

AFFIRMED.

GILLESPIE, C. J., INZER, P. J., and SMITH, ROBERTSON, SUGG, WALKER and BROOM, JJ., concur.

LEE, J., took no part.