text:
    Joan Capdeville, wife of Curtis R. BOISFONTAINE v. Curtis R. BOISFONTAINE.
    No. 9090.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 14, 1978.
    Rehearing Denied April 11, 1978.
    Writs Refused May 19, 1978.

      Chaffe, McCall, Phillips, Toler & Sarpy, Harry McCall, Jr. and Norris S. L. Williams, New Orleans, for plaintiff-appellee.
    Sessions, Fishman, Rosenson, Snellings & Boisfontaine, Max Nathan, Jr. and Robert C. Lowe, New Orleans, for defendant-appellant.
    Before REDMANN, LEMMON and GU-LOTTA, JJ.
   LEMMON, Judge.

This is an appeal by the husband from a judgment setting C.C. art. 160 alimony at $2,222.22 per month, in addition to support for one child fixed by consent at $325.00 per month, plus school tuition and certain other expenses. The husband contends in this court that the record does not support a conclusion that the wife does not have “sufficient means for her support” and alternatively that the award constitutes an abuse of discretion, when measured against the proper standard for setting C.C. art. 160 alimony.

I

The alimony rule was tried shortly after rendition of the divorce. The wife had no income, and there was no evidence of her ability to earn income [a factor apparently not considered important in the light of Ward v. Ward, 339 So.2d 839 (La.1976)]. Her cash on hand was approximately $200.00. In addition she had $6,636.00 remaining in a homestead account, representing the balance of the proceeds of the community property settlement (in which she received about $17,000.00 and paid $10,-000.00 in bills), and she was to receive that week the sum of $25,747.00 as her share of the net proceeds of the sale of the family home. Other assets were corporate stock worth $138.75, an eight-year old automobile valued at $250.00, a promissory note executed by her mother in the amount of $5,000.00, a five-year old fur jacket, a 26-year old fur coat, and certain furniture received in the community property settlement.

She listed current debts, principally incurred in these proceedings and in the community property settlement and to be paid from the forthcoming proceeds of the house sale, at about $18,000.00. Thus, the wife’s current assets (exclusive of furniture, furs and silverware) in excess of current debts was slightly less than $20,000.00.

The wife testified that she intended to use the balance of the proceeds from the house sale, after all current debts were paid, as a down payment on a smaller house.

In 1976 the husband earned gross income of $117,000.00 and net income of $80,000.00.

II

The trial court held that the wife did not have “sufficient means for her support”, as contemplated by C.C. art. 160, reasoning (1) she should be allowed to use the cash bal-anee as a down payment on a new house, which was essentially substituting her share of the equity in the family home for equity in a smaller home, and (2) she did not have to sell the furniture, furs and silverware before being entitled to alimony, because she would use the furniture, and the furs and silverware were “of no great value, perhaps a few thousand dollars worth”.

The husband argues that even if only the liquid or readily liquidable assets of about $20,000.00 are considered, the wife cannot be deemed to have insufficient means.

The determination of “sufficient means” is insusceptible of solution by any exact formula or monetary index and should be accomplished by application of the “rule of reasonableness in light of all the factors”. Loyacano v. Loyacano, 358 So.2d 304 (La.1978), rehearing granted. Factors to be considered include the type of assets and their liquidity, the consequences of the liquidation, and the relative financial positions of the parties. Loyacano v. Loyacano, supra.

Applying the rule of reasonableness in the light of all circumstances, and considering the relative financial position of the parties, we conclude the record supports the trial court’s finding that the wife did not have sufficient means.

The trial court’s permitting the wife to use at least part of the cash, which represented equity from the forced sale of the old home, to obtain equity in a new home is not unreasonable under the overall circumstances, if the new home is purchased at a reasonable cost. Relevant considerations are that most of the cash would otherwise be required for payment of taxes and that the wife’s maintenance (which the husband is obliged to provide) includes either rent or house note.

We therefore conclude that the wife was entitled to alimony in a reasonable amount,

III

We agree with the husband’s contention that the trial court exceeded its discretion in setting alimony at exactly one-third of the husband’s net income, when the wife’s needs did not justify this amount. We accordingly set aside the award and set alimony on the basis of the record.

Alimony under C.C. art. 160 is not awarded in an amount sufficient to support the wife in the manner to which she was accustomed while the parties were living together, but rather in an amount sufficient to provide for her maintenance, which includes food, clothing, shelter and other basic necessities. Ward v. Ward, 339 So.2d 839 (La.1976); Bernhardt v. Bernhardt, 283 So.2d 226 (La.1973); Smith v. Smith, 217 La. 646, 47 So.2d 32 (1950).

The trial court’s extensive reasons for judgment hardly mentioned the wife’s needs, claimed to exceed $55,000.00 per year for herself, but referred primarily to the husband’s income, which was not the critical factor in this case. While a husband’s income, when substantial, may be considered in relation to the wife’s needs in setting alimony, the amount of the award is primarily based on needs and must have some basis in fact.

In estimating her living expenses, the wife listed the amounts spent during the past 12 months, during which time she was receiving alimony pendente lite (which is related to the standard to which she was accustomed before the separation) and was living in the large family home, and then she increased those amounts in estimating her future needs. Pertinent to her monthly maintenance are the following estimated expenses: House note, $680.00; house insurance, $50.00; real estate taxes, $200.00; gas and electricity, $214.00; sewerage and water, $18.00; telephone, $52.00; house upkeep, $63.00; pest control, $7.00; drugs, $40.00; medical and eye doctor, $34.00; dental, $16.00; medical insurance, $69.00; clothing and cleaning, $133.00; food, $517.00; car note and maintenance, $250.00; car insurance, $293.00; gasoline, $99.00; and taxes on alimony in an undetermined amount.

Considering that the house note and expenses related to the house must be reduced to an amount more reasonably related to the reasonable needs of one person depending upon alimony for this support and that the cost of food is greatly overstated, and further observing that a wife of 26 years should not be impoverished because her marriage to a spouse with substantial income has ended through no fault of her own, although the spouse is not obligated to continue her in her former standard of living, we fix alimony at $1,500.00 per month.

Accordingly, the judgment of the trial court is amended to reduce the award of alimony from $2,222.22 to $1,500.00 per month. As amended, the judgment is affirmed.

AMENDED AND AFFIRMED.

      . While certain heirloom jewelry had been listed in the community property settlement, the wife at time of trial had returned the jewelry to her mother, because she could not afford the insurance.

      . The wife’s share of the taxes on the sale of the family home was expected to be from $9,000.00 to $12,000.00, but both counsel agreed that reinvestment in a new home could defer the tax liability entirely or to a substantial degree.

      . In determining that C.C. art. 160 alimony was excessive, we do not place great significance on the fact that the award exceeded the alimony pendente lite paid at the rate of $1,600.00 per month, because that amount was set by agreement of the parties for the purpose of avoiding litigation at that stage.


source: Caselaw Access Project

author: BOUTALL, Judge.

license: Public Domain

text:
    Newell H. SMITH, Jr. v. Marilyn Chisholm Smith, w/o N. H. SMITH, Jr.
    No. 9101.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 14, 1978.
    Rehearing Denied April 11, 1978.
    Jacob J. Amato, Jr., Gretna, for Newell H. Smith, Jr., plaintiff-appellee.
    George O’Dowd, New Orleans, for Marilyn C. Smith, defendant-appellant.

      Before BOUTALL, SCHOTT and GAR-SAUD, JJ.
   BOUTALL, Judge.

Newell H. Smith, Jr. brought suit against his wife for a divorce based on living separate for two years, R.S. 9:301. From a judgment awarding him a divorce and declaring mutual fault, Mrs. Smith appeals raising these issues: 1.) That the judgment is a nullity because of improper venue, C.C.P. Art. 3941; 2.) that she had received a judgment of separation in her favor in another suit, and that the provisions of R.S. 9:302 preclude her husband from suing under R.S. 9:301; 3.) that the trial court erred in finding her at fault.

As to venue, C.C.P. Art. 3941 provides that the divorce suit may be brought in a parish where either party is domiciled. The evidence is clear, and the appellant admits, that at the time of filing suit she was domiciled in Jefferson Parish. Accordingly, the 24th Judicial District Court for the Parish of Jefferson was a court of proper venue.

Appellant further contends that this suit could not be maintained in Jefferson Parish because she had previously sued for a separation in Plaquemines Parish and had been awarded a judgment of separation by the 25th Judicial District Court for that Parish. Accordingly she contends that the provisions of R.S. 9:302 (prior to its 1977 amendment) governed the obtaining of a divorce to the exclusion of R.S. 9:301. The judgment of separation was based upon living separate and apart for one year, LCC Art. 138(9). We cannot agree with this contention. Our codal and statutory scheme sets out precisely the grounds for which a separation may be obtained and the grounds for which a divorce may be obtained. It is apparent that the separation suit and the divorce suit are not based upon the same cause of action and do not have the same object. In the separation suit, the cause of action arises as a result of one year continuous living separate and apart, whereas the divorce action is based upon a two year period. The ground for divorce provided in R.S. 9:302 does not simply extend the one year separation period to a two year separation, the ground there required is no reconciliation for a period of one year or more from the date the judgment of separation was signed. We note that the judgment of separation was signed on August 31, 1976, the starting period for the year to lapse before divorce, and that this divorce suit was brought on January 20, 1977, seven months before a cause of action for divorce could arise in that case. We perceive no difference between the two causes of action in this case and the two causes of action in the case of Smith v. Smith, 179 So.2d 433 (La.App. 3rd Cir. 1965). See also Call v. Call, 274 So.2d 795 (La.App. 4th Cir. 1973); Waters v. Waters, 264 So.2d 275 (La.App. 4th Cir. 1972); Morris v. Morris, 336 So.2d 254 (La.App. 1st Cir. 1976). Appellants’ separation proceeding in Plaquemines Parish with the prospect of a possible future divorce proceeding, did not constitute a bar to the filing of the appel-lee’s divorce in Jefferson Parish.

The last issue is the determination of fault on appellant. The issue of fault came about in the trial court by virtue of Mrs. Smith filing a reconventional demand for a divorce, alleging that her husband was at fault for the separation and that she was free from fault. To this the husband merely answered with a denial of the allegations. Fault had not previously been litigated in the Plaquemines separation which was based on one year voluntary separation. To appellant’s contention that the admissibility of evidence of fault was error, we answer that a wife requesting permanent alimony has the burden of proving she is free from fault. C.C. Article 160. The appellee’s answer of denial to the wife’s allegations of freedom from fault in the reconventional demand put fault at issue. It was unnecessary for appellee to plead specific allegations of appellant’s fault. See for comparison Chapman v. Chapman, 130 So.2d 811 (La.App. 3rd Cir. 1961), decided under the principles existing before adoption of our present Code of Civil Procedure. The case of Carter v. Carter, 316 So.2d 829 (La.App. 1st Cir. 1975) does not stand for the proposition that the husband is required to affirmatively answer to the wife’s reconventional demand. It raises the question of fairness and consideration of effect of the evidence presented in the discharge of her burden of proof.

The facts in our case are quite different. In reviewing the trial judge’s finding of fact, we note that his finding of mutual fault was based in large part upon the testimony given by the appellant herself. Our review of those facts discloses no error in the trial judge’s determination that Mrs. Smith was not free from fault, and we affirm his denial of alimony.

The judgment appealed is affirmed at appellant’s cost.

AFFIRMED.


author: GAUDIN, Judge.

text:
    ARROW CONSTRUCTION CO., INC. v. NEWSOM’S DEMOLISHING CO., INC.
    No. 9145.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 14, 1978.
    Rehearing Denied April 11, 1978.
    Writ Refused June 2, 1978.
    Patrick C. Kelley, New Orleans, for plaintiff-appellee.
    Jones & Jones, Johnnie A. Jones, Baton Rouge, for defendant-appellant.
    Before STOULIG, BEER and GAUDIN, JJ.
   GAUDIN, Judge.

Plaintiff, Arrow Construction Company, Inc., brought this action against Newsome’s Demolishing Company, Inc., for rental of dragline equipment.

Following an adverse district court judgment, Newsome lodged this appeal, contending primarily that the trial judge erred in: (1) allowing Arrow to file a supplemental and amended petition; and (2) applying a three-year prescriptive period rather than a one-year prescription. We find no merit in these or any other of appellant’s lesser arguments.

Arrow and Newsome entered into a formal contract whereby Arrow would provide a dragline to be used in demolition of a building in Baton Rouge. It was orally agreed that Newsome and not Arrow would furnish the machine’s operator.

Following completion of the demolishing job, there was a concursus proceeding in the 19th Judicial District Court. Arrow tried to enforce its claim but was unsuccessful because, in the opinion of Judge Melvin Shor-tess, it was a charge for rental equipment and expressly excluded from the lien provisions of the Public Contracts statutes.

Subsequently, Arrow filed the instant suit in the Orleans Civil District Court. This was met by Newsome’s exception based on LSA-C.C. Art. 3534, which sets a one-year prescription for wages of workmen, laborers and servants.

The petition stated:

. . petitioner and defendant entered into a construction contract, a copy of which is attached hereto, whereby the petitioner obligated itself to demolish a building . . . ”

Further,

“Petitioner complied with its part of the obligation and submitted its statement in accordance with ‘dragline statements’ totaling $3,564.20 ...”

The trial judge, perhaps feeling that the petition was somewhat vague, sustained the exception of prescription but he allowed Arrow to amend. This was in direct accord with this State’s longstanding liberality with regard to amendment.

Arrow did file a supplemental petition, stating therein its equipment rental claim in precise terms.

We are of the firm opinion that the trial judge had authority under LSA-C.C.P. Art. 932 to permit the amended petition. Also, the interests of justice were well served. Newsome had defeated Arrow’s claim in the concursus proceeding by arguing that it was for rental of equipment and not for wages; and in Orleans, Newsome was trying to defeat Arrow’s claim by contending that it was for wages and not for dragline rental.

From the pleadings, evidence and testimony, this claim is distinctly for rental equipment, and clearly falls under LSA-C.C. Art. 3538, prescribing after three years. The petition in Orleans, therefore, was timely filed.

A review of the record shows no error, and we affirm the trial court’s judgment at appellant’s cost.

AFFIRMED.


author: GULOTTA, Judge.

text:
    Merril L. HENNINGER v. UNITED STATES FIDELITY AND GUARANTY CO. and Schaff Brothers, Inc.
    No. 9180.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 14, 1978.
    Rehearing Denied April 11, 1978.
    Writ Refused June 2, 1978.

      Kronlage, Dittman & Caswell, Albert S. Dittman, Jr., New Orleans, for plaintiff-appellant.
    Montgomery, Barnett, Brown & Read, Charles A. Boggs, Sylvia Landry, New Orleans, for defendants-appellees.
    Before REDMANN, LEMMON and GU-LOTTA, JJ.
   GULOTTA, Judge.

Plaintiff, a 41-year-old licensed plumber, appeals from a workmen’s compensation award based on permanent partial disability of a leg resulting from a torn cartilage injury which required surgical removal of the cartilage.

It is plaintiff’s contention that the trial judge erred in failing to award benefits based upon permanent total disability and in failing to hold the “medical portion of plaintiff’s case open” for “medical benefits” under LSA-R.S. 23:1203.

In answer to plaintiff’s appeal, defendants contend the trial judge erred in finding a work-related accident and further claim, alternatively, that plaintiff is not totally and permanently disabled from doing plumbing work. In this latter connection, defendants argue the disability sustained by plaintiff amounts to llh% of the leg and not 12V2% as found by the trial judge. We affirm.

The trial court’s conclusion that the torn cartilage was work-related is supported by the record. Plaintiff testified that on the morning of May 29,1974, in the course of running underground sewer pipes for his employer, he had twisted his knee and had suffered severe pain while lowering into a ditch a length of pipe weighing between 375-400 pounds. He further stated that he had mentioned the pain to a coworker and that he had worked, in pain, for the remainder of the day. His testimony in this respect was corroborated by that of his former coworker, Jacob Pabst, who stated that plaintiff had complained of leg pain, though he had not reported any injury or accident to him. Five days after the incident,- plaintiff sought medical treatment.

Dr. G. Gernon Brown, Jr., plaintiffs treating orthopedic surgeon, in deposition, stated that meniscus tears commonly occur from twisting injuries and that plaintiff’s torn cartilage could very well have resulted from the injury described by plaintiff. Considering this evidence, we cannot say the trial judge's factual conclusion that plaintiff suffered a work-related injury is unsupported.

The trial court’s conclusion that plaintiff was not totally and permanently disabled from resuming his pre-injury occupation is also supported by the record. A postoperative examination on October 30, 1974, following a July 10, 1974 removal of the cartilage, revealed no swelling and full range of motion in the knee. Plaintiff walked normally, without a limp. Plaintiff was advised, at that time, that he could return to work. Dr. Brown explained that as a result of the torn meniscus plaintiff has a 15% disability of the knee and because of the arthritis he has an additional 10% disability. Significantly, Dr. Brown stated that the arthritis of the knee was not affected by the trauma to the cartilage. The physician further stated that a slight reduction of motion of the knee observed in his last examination on October 22, 1976,-was not due to any problem with the meniscus, but as a result of the arthritic process. According to the doctor, plaintiff has recovered satisfactorily from the knee operation.

Plaintiff testified that he went back to work on approximately November 12, 1974 and is presently employed as a pipefitter at a wage greater than that earned at the time of the accident. He stated that phases of pipefitting work, such as climbing, are similar to those in plumbing. Further evidence of the similarity between plumbing and pipefitting is the testimony of an expert witness who stated that both jobs involve similar activities, including stooping and climbing, though pipefitting does not involve quite as much underground work.

The evidence considered, we find no error in the trial court’s determination that plaintiff failed to establish a permanent total disability.

We reject also plaintiff’s contention that the trial judge erred in failing to hold the medical portion of plaintiff’s case open for medical benefits. LSA-R.S. 23:1331 provides:

§ 1331. Modification by agreement of parties, approval by court; judicial review
“A judgment of compensation may be modified by subsequent agreement between the parties, with the approval of a judge of the court which rendered the same.
“At any time six months after the rendition of a judgment of compensation, a judge of the trial court that rendered the judgment shall review the same upon the application of either party for a modification thereof, on the grounds that the incapacity of the employee has been subsequently diminished or increased, or that the judgment was obtained through error, fraud, or misrepresentation. In such cases the provisions of R.S. 23:1121 through R.S. 23:1124 with reference to medical examinations shall apply.”

Further, LSA-R.S. 23:1121 provides:

§ 1121. Examination of injured employee
“An injured employee shall submit himself to an examination by a duly qualified medical practitioner provided and paid for by the employer, as soon after the accident as demanded, and from time to time thereafter as often as may be reasonably necessary and at reasonable hours and places, during the pendency of his claim for compensation or during the receipt by him of payments under this Chapter.”

These statutes provide for a later modification of the judgment dependent upon plaintiff’s future medical condition. Under the circumstances, we find no prejudice to plaintiff’s right, at a later time, to seek modification.

Because we have concluded the evidence supports the conclusions that plaintiff sustained a work-related accident and that his disability is not of a total and permanent nature, we find no necessity to address defendants’ contention (in answer to the appeal) that plaintiff sustained a llk% disability of the leg rather than a 12V2% disability as determined by the trial judge. According to the insurer, the argument regarding the percentage of disability is made only for the purpose of showing the absence of total and permanent disability. In this connection, we might add that because plaintiff has received $1,560.00 in workmen’s compensation payments, for which defendants are allowed credit, defendants are not responsible for the payment of any additional amount to plaintiff. The trial judge properly pointed out that in spite of the trial court’s award “plaintiff is unable to recover anything for his present disability”. See LSA-R.S. 23:1223. In the final analysis, in this case, whether or not plaintiff is entitled to a 12V2% or a llfa% disability makes no financial difference to defendants.

Accordingly, the judgment is affirmed.

AFFIRMED.

      . LSA-R.S. 23:1203 (Acts 1968, No. 103, § 1), applicable at the time plaintiff sustained injury, May 29, 1974, provided as follows:
      § 1203. Medical expenses; duty to furnish
      “The employer shall in every case coming under this Chapter, furnish all necessary medical, surgical, hospital services and medicines or any non-medical treatment recognized by the laws of this state as legal, not to exceed the total sum of twelve thousand five hundred dollars ($12,500.00), except in cases of undue and unusual hardship as hereinafter provided, unless the employee refuses to allow them to be furnished by the employer.

      . According to defendant, the medical evidence establishes that 15% of the 25% disability of the knee resulted from the torn cartilage and 10% of the 25% disability resulted from degenerative arthritic changes.
      In oral argument, the insurer acknowledges that his answer to the appeal does not seek a reduction in the leg disability from 12'/2% to 7‘/2%. Its argument regarding the percentage of disability is made only for the purpose of showing no total and permanent disability exists to prevent plaintiff from doing plumbing work.

      . Though plaintiff complained of right knee pain in early June, 1974, it was not until July 1, 1974 that he first mentioned to Dr. Brown that he had injured his knee while lowering a pipe.


author: PER CURIAM. LEMMON, Judge,

text:
    Benjamin Oliver ROBY, Jr. v. OWENS-ILLINOIS, INC., the Board of Directors and its Officers, and the Aetna Life and Casualty Insurance Company.
    No. 9261.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 14, 1978.
    Rehearing Denied April 11, 1978.
    Norman Mopsik, New Orleans, for plaintiff-appellant.
    Lemle, Kelleher, Kohlmeyer & Matthews, Paul B. Deal, New Orleans, for defendant-appellee.
    Before LEMMON, SCHOTT and BEER, JJ.
   PER CURIAM.

On December 20, 1976, appellant Benjamin Oliver Roby, Jr. (hereafter, “Roby”) filed this suit against Owens-Illinois, Inc., et al., and Aetna Life & Casualty Insurance Company (hereafter, “Aetna”), mistakenly confusing that company with The Aetna Casualty & Surety Company.

Owens’ subsequently filed exception was sustained and their dismissal from these proceedings is no longer at issue.

More than a year from the date of the incident which gives rise to this litigation, Roby, through his counsel, supplemented and amended the original pleadings, seeking to delete Aetna Life & Casualty Insurance Company and substitute, in its place, The Aetna Casualty & Surety Company, who, upon being served, peremptorily excepted on grounds of prescription. The trial judge maintained the exception with the observation that he felt bound by Majesty v. Comet-Mercury-Ford Co. of Lorain, Mich., 296 So.2d 271 (La.1974), in spite of his strong disagreement with that holding.

The ruling of the able trial judge is correct. Majesty, supra, does, indeed, apply under the fact situation existent here, just as the maxim “contra non valentem agere, non currit prescripto” does not. See LSA-R.S. 22:1522, and note the Supreme Court’s observations in the closing paragraphs of Dean v. Hercules, Inc., 328 So.2d 69 (La.1976).

AFFIRMED.

LEMMON, J., concurs and assigns reasons.

LEMMON, Judge,

concurring.

In my opinion a timely suit against Aetna Life and Casualty Insurance Company interrupted prescription on a cause of action for damages against Aetna Casualty and Surety Company. The improper name was close enough to the proper name to inform the proper defendant, when served with the petition, that the suit asserted a claim against it.

Dismissing the suit because the plaintiff did not come close enough to the correct name of a corporate defendant unjustly penalizes the litigant in substance for his attorney’s unsubstantial mistake in form.

I agree that the decisions in Majesty v. Comet-Mercury-Ford Co. of Lorain, Mich., 296 So.2d 271 (La.1974) and Bowerman v. Pacific Mutual Ins. Co., 212 La. 1000, 34 So.2d 53 (1948) are controlling, but I disagree with those decisions. Nevertheless, I yield to the authority of a higher court and therefore concur.

      . “I am going to maintain the exception, please take an appeal. Let me repeat again, Majesty versus Comet Mercury Ford of Loraine, Michigan represents in my judgment the greatest misjustice I have ever read in the Southern Reporter. I cannot distinguish it. Please take an appeal, maybe someone else can distinguish it and in that distinction may come justice, but right now I am bound by that outrageous decision, please transcribe those notes for inclusion in the record on appeal.” (Record of proceedings, June 30, 1977, pages 2 and 3.)

      . The petition did not allege that Aetna insured the officers and directors and thus did not state a cause of action, but this ground for a peremptory exception can be removed by amendment. See C.C.P. art. 934.


text:
    FIRST PROGRESSIVE BANK v. David L. VERRET, Jr., Gregory B. Jones, Donald J. Burke, Charles A. Mannina and John S. Crespino.
    No. 9410.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 14, 1978.

      Legier, McEnerny, Waguespack, Kuhner, Scoggin & Strong, Fred Clegg Strong, New Orleans, for plaintiff-appellee.
    Daniel A. McGovern, III, New Orleans, for defendant-appellant, David L. Verret, Jr.
    Rodney J. Madere, New Orleans, for defendant-appellant, Donald J. Burke.
    Cabibi & Cabibi, Charles E. Cabibi, New Orleans, for defendant-appellant, Charles A. Mannina.
    Eustace J. Shearman, III, New Orleans, for defendant-appellant, John S. Crespino.
   ON MOTION TO DISMISS

Before GULOTTA, BOUTALL and GAR-SAUD, JJ.

GULOTTA, Judge.

Plaintiff moves to dismiss defendants’ appeal on the grounds 1) that defendants did not pay to the clerk of the trial court within 20 days after the signing of the order of appeal estimated costs for the preparation of the record on appeal and filing costs as provided in LSA-C.C.P. art. 2126; 2) that the record was not timely lodged in the Court of Appeal on or before the extended return date; and, 3) that subsequent to filing the motion for appeal and appeal bond defendants filed a petition for voluntary bankruptcy and the trustee, as representative of the bankrupt, is a necessary party and should prosecute this appeal.

Finding no merit to these contentions, we deny plaintiff’s motion to dismiss the appeal.

The motion for appeal was signed on July 15, 1977 and the appeal bond was filed on July 19, 1977. Apparently, defendants were not notified at that- time of the amount of the estimated costs. It was not until October 18, 1977 that a notice was sent to the appellants by the clerk advising that the estimated costs amounted to the sum of $340.00. Defendants were advised to remit the costs to the clerk before November 7, 1977. The estimated costs were paid on October 27, 1977. Although the estimated costs were not paid within 20 days of the order granting the appeal, they were paid within 20 days of the notice of the amount of the estimated costs as prepared by the clerk. Under these circumstances, we cannot say that the payment of the estimated costs was untimely. Defendants had no way of knowing the amount of the estimated costs until such time as they were estimated by the clerk. As was stated in Union Services Industries, Inc. v. Bonner, 344 So.2d 119 (La.App. 2d Cir. 1977):

“ * * * The apparent purpose of the amendment [LSA-C.C.P. art. 2126] is to require payment by the appellant prior to the time the record is actually prepared. * * *

Clearly, the record was not prepared prior to December 27,1977 because on that date a 60-day extension was requested by the court reporter. This request was denied. The record was lodged in the Court of Appeal on February 17, 1978.

Although the record was filed in this court subsequent to the expiration of the extended return date, this irregularity is not imputable to the appellants. LSA-C. C.P. art. 2161; Davidge v. Magliola, 346 So.2d 177 (La.1977).

Finally, the proper party to file the appeal is the aggrieved litigant. At the time that the appeal was filed, defendants had not filed a petition in bankruptcy. We know of no authority, nor have we been cited any, which would require a trustee, appointed in the bankruptcy court, to either file the appeal or join in the appeal. Because a trustee in bankruptcy may or may not intervene on behalf of the creditors in the appeal, an appellant cannot be denied his right of appeal provided the requirements for perfecting the appeal have been met. The motion to dismiss the appeal is denied.

MOTION DENIED.


author: LEMMON, Judge.

text:
    SOUTHERN TOURS, INC. v. NEW ORLEANS AVIATION BOARD, Paul J. Stoulig, Jerome S. Glazer, Nolan A. Marshall, Robert L’Hoste, James M. Trotter, III, Henry J. Friloux, Jr., Phyllis Landrieu, Lane Meltzer and Richard J. Kernion.
    No. 9097.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 20, 1978.
    Rehearing Denied April 11, 1978.
    Writ Refused June 2, 1978.

      Peter J. Casano and Lankford, Schneider & Lankford, John G. Lankford, New Orleans, for plaintiff-appellant.
    Stone, Pigman, Walther, Wittmann & Hutchinson, Phillip A. Wittmann, Walter B. Stuart, IV, and Paul L. Zimmering, New Orleans, for defendants-appellees.
    Lemle, Kelleher, Kohlmeyer & Matthews, James A. Churchill, Earl S. Eichin, Jr., and Ralph S. Hubbard, New Orleans, for Orleans Transp. Service, Inc., intervenor-appel-lee.
    Before LEMMON, BOUTALL and GAR-SAUD, JJ.
   LEMMON, Judge.

This suit involves bidding on a contract to provide ground transportation for air passengers from New Orleans International Airport to destinations in the metropolitan area. Southern Tours, Inc. (Southern) has appealed from a judgment refusing (1) to award the contract to Southern pursuant to bids of May 26, 1977 and (2) to enjoin offering the contract for rebidding.

Facts

On April 26, 1977 the New Orleans Aviation Board published an invitation for bidding on a 10-year contract for the ground transportation, in anticipation of the existing contract with Orleans Transportation Service, Inc. (Orleans) expiring on August 15, 1977. Under the proposal a bidder was required to submit an annual minimum guarantee and to agree to pay the Board that amount or 10% of gross revenue (total fare collections minus taxes), whichever was greater.

On May 26, 1977 the Board opened the only two bids, one from Orleans with a total minimum guarantee over ten years of $2,427,300.00 and one from Southern with a proposed guarantee of $2,450,000.00. The Board then appointed a committee to study the bids and the qualification of the bidders.

On June 22, 1977 the Board held a hearing attended by the bidders and then adopted a resolution recommending to the New Orleans City Council that Orleans’ bid be accepted, because of the slight monetary difference in the bids and of the Board’s experience with Orleans’ operations.

On July 21, 1977 the City Council considered a motion to concur in the Board’s recommendation that the contract be awarded to Orleans, but the vote on the motion resulted in a tie. On July 28, 1977 the Council acted on a substitute motion and adopted, by a four-to-three vote, a resolution finding Southern had submitted the highest responsible bid and purporting to award the contract to Southern.

At its August 3, 1977 meeting the Board concluded that the Council’s action merely constituted a disapproval of its recommendation. Because various Councilmen had expressed general dissatisfaction with the terms and specifications of the bid proposal, the Board authorized the special committee to review the possibility of substantial changes which, if deemed necessary, could constitute cause for advertisement of invitations to bid according to a revised bid proposal.

Southern thereafter filed this suit to enjoin the Board from offering the contract for rebidding and to obtain an order that the contract be awarded to Southern in accordance with the action of the Council. Orleans intervened, opposing the relief requested by Southern. After trial of the matter on stipulations and documents, the court dismissed the suit, and Southern appealed.

Validity of City Council Action

The trial court held that the Council’s action purporting to award the contract to Southern was null and void, since the Council’s authority was limited to approving or disapproving the Board’s recommendations.

The authority of the Board and the Council is expressly stated in La.Const.1921, Art. 14, § 31.6(D), continued as a statute pursuant to La.Const.1974, Art. 14, § 16(A)(1), as follows:

“The City of New Orleans, acting by and through the New Orleans Aviation Board, with the approval of the City Council, is empowered to, and shall, impose, charge and collect, rates, fees, rentals and other charges for the use of the said Moisant International Airport and of the facilities constructed pursuant to this Section, in such amounts as will be sufficient at least to provide revenues adequate to maintain and operate the said Airport and facilities heretofore or hereafter constructed, to pay the principal of and interest on and premiums, if any, upon redemption of such obligations, to provide for the renewal and replacement of any or all of the Airport facilities and adequate reserves for all of such purposes, and for that purpose may contract for the operation of the said Moisant International Airport or lease all or any part thereof, to any person or corporation, public or private, upon such terms and conditions and for such period of years as the New Orleans Aviation Board may deem advisable, after having received the approval of the City Council.” (Emphasis supplied)

Under the procedure outlined in this statute the Board determines the terms and conditions of a proposed contract, obtains Council approval, and then executes the contract on behalf of the City.

In the present case the Council, in considering the exercise of its authority to approve the proposed contract with Orleans, had no authority under the statute to award the contract to another bidder, and if this statute is controlling, the Council’s action must be construed merely as disapproval of the Board’s recommendation.

Citing La.Const.1974, Art. 6, § 15, as authority for the proposition that the Council has general power over the Board, Southern argues that in cases of conflict between the powers of the Board and the Council, the Board’s power must yield to that of the Council. In response to the contention that Art. 6, § 15 does not apply because the Council did not create this board, Southern points out that the Board was originally created by C.C.S., Ord. No. 15,839 in 1943 and that M.C.S., Ord. No. 1841, § 1 [which predates La.Const.1921, Art. 14, § 31.6(D)], adopted in 1960, created the Board in its present form.

Despite the wording of M.C.S., Ord. No. 1841, § 1, we conclude the present Board was created as part of the executive branch in 1954 when the citizens of the city adopted the Home Rule Charter, specifically Article 5, Chapter 7. Although the 1960 ordinance purported to create the Board, the existence of the Board was derived from the Home Rule Charter, which cannot be amended or modified by Council ordinance. Thus, the Board is not an agency created by the Council and certainly not wholly created by the Council. Accordingly, the Board’s powers as an arm of the executive branch, derived from the Home Rule Charter and from the Legislature, cannot be taken away by the Council.

We conclude that La.Const.1974, Art. 6, § 15 is inapplicable by its terms.

Board’s Right to Readvertise

Citing Gurtler, Hebert & Co. v. Orleans Parish School Bd., 251 So.2d 51 (La.App. 4th Cir. 1971), Southern contends that once the Board chose to recommend awarding the bid to Orleans, it lost the right to reject all bids and to readvertise for new bids.

We distinguish the Gurtler case on its facts. In that case defendant passed over plaintiff’s low bid (which in terms of money was the most favorable bid) and accepted the next lowest bid as the lowest responsible bid. In the ensuing litigation the trial court found that plaintiff was a responsible bidder and enjoined defendant from awarding the contract to the second lowest bidder. Thereafter, defendant sought to read-vertise bidding for the same work on substantially the same basis. On appeal from a refusal to allow readvertising, this court held that if the agency were allowed to arbitrarily reject plaintiff’s bid under those circumstances, the purpose of competitive bidding would be defeated. In the absence of a showing of a substantial reason to reject all bids after finding one acceptable, the agency was presumed to have exercised favoritism to plaintiff’s detriment.

The circumstances are different in the present case. At the two extensive hearings before the Council, after the Board had chosen to accept Orleans’ bid subject to Council approval, many objections were raised to the terms and specifications of the bid proposal. One councilman objected to the length of the term; another objected to the fixed percentage of gross revenue and suggested that subjecting the percentage to competitive bidding might achieve a higher percentage; another observed that the contractor (and others) providing service to the airport should be required to pay a percentage of those fares; while another suggested a provision for annual inspection and for the right to require repairs or replacement.

Thereafter, the special committee reviewed the bid proposal and suggested provisions (1) shortening the term and including an option to renew in favor of the Board; (2) permitting competitive bidding on the percentage of gross revenues; (3) permitting annual adjustment of the minimum guarantee based on contract performance in prior years; (4) requiring the contractor and others to pay a percentage of fares to the airport; (5) requiring annual inspection and permitting the Board to require repair or replacement of defective equipment; and (6) changing the minimum experience requirement.

There is sufficient evidence in this record to support a conclusion that the Board, on the basis that the Council expressed general dissatisfaction primarily with the bid proposal and not with either bidder, reasonably exercised its discretion to reject all bids and to readvertise for new bidding in accordance with a substantially revised bid proposal, designed to achieve a benefit for the public and not simply to accord a second opportunity to a favored bidder.

Disposition of Southern’s Original Bid

Southern contends that its bid, never having been rejected, must now be accepted. We have concluded that all bids were rejected in the decision to readvertise, and since that decision was found to be not primarily for the purpose of evading the bidding law, acceptance of Southern’s bid cannot be compelled.

The judgment is affirmed.

AFFIRMED.

      . Thus, in terms of money only, the bid most favorable to the Board was that of the highest bidder.
      However, the bid proposal contained the following additional provisions:
      “The right is reserved by the Board to waive any irregularities or informalities in any proposal, to reject any or all proposals or re-advertise for proposals if desired, and to accept the proposal which, in the judgment of the Board, even though it does not offer the highest annual guarantee of direct financial return, is nevertheless deemed the most advantageous for the public and the Board.
      ******
      “The Board reserves the right to investigate thoroughly the finances, character, experience and record of each applicant and the final award will be based upon the comparative qualities above mentioned, as well as the provisions quoted in the applicant’s proposal.”

      . The trial court did enjoin the Board from awarding the contract to Orleans pursuant to the April, 1977 bid without the approval of the City Council. Pending this appeal Orleans is providing ground transportation on a month-to-month basis pursuant to the old contract.

      . La.Const.1974, Art. 6, § 15 provides:
      “The governing authority of a local governmental subdivision shall have general power over any agency heretofore or hereafter created by it, including, without limitation, the power to abolish the agency and require pri- or approval of any charge or tax levied or bond issued by the agency.”

      .M.C.S., Ord. No. 1841, § 1 provides:
      “There is hereby created a municipal board to be known as the New Orleans Aviation Board, which shall be so constituted and have such powers, duties and functions as set forth in this article. The New Orleans Aviation Board shall consist of five members to be appointed by the Mayor, with the approval of the Council, for terms of five years, so arranged that the term of one member shall expire each year.”

      . Chapter 7 of the Home Rule Charter, entitled New Orleans Aviation Board, provides:
      “SECTION 5-701. COMPOSITION. The New Orleans Aviation Board shall consist of five members to be appointed by the Mayor with the approval of the Council for terms of five years, so arranged that the term of one member shall expire each year.
      “SECTION 5-702. FUNCTIONS. The Board shall:
      “(1) Administer, operate and maintain all municipal airports and aviation facilities.
      “(2) Represent the City in all technical matters pertaining to aeronautics in consultation with state, national or international aeronautics officers or agencies.
      “SECTION 5-703. AVIATION DIRECTOR. The Board may appoint an Aviation Director who shall serve at its pleasure and who shall be the executive officer of the Board.”

      . We are not impressed with the Board’s argument that it had the right to reject Southern’s original bid and order rebidding because no original bid was ever accepted. If the Board, after recommending acceptance of Orleans’ bid and failing to obtain Council approval, had decided to readvertise the same contract for rebidding without any substantial reason for doing so, we would be reluctant to affirm such arbitrary and capricious action. A public body cannot exercise its discretion to reject any and all bids arbitrarily or capriciously for the purpose of evading the bidding law, but must exercise its discretionary power in good faith and without favoritism, which competitive bidding is designed to prevent.

      . The trial judge noted that the Council’s deliberations suggested that “major aspects of the bid proposal . . are in need of revision”. Indeed, several Councilmen suggested revision and rebidding.


author: BOWLING, Justice, PATTERSON, Chief Justice, SUGG, Justice,

text:
    Ernest R. COUCH, N. C. M., by Ruthie Jerome Scarborough, next friend v. Dr. Ramino J. MARTINEZ et al.
    No. 50156.
    Supreme Court of Mississippi.
    Feb. 8, 1978.
    Laurel G. Weir, Philadelphia, for appellant.
    William E. Ready, Meridian, for appel-lees.
   ON PETITION FOR REHEARING

EN BANC:

BOWLING, Justice,

for The Court:

On September 28, 1977, this cause was affirmed without a written opinion. The appellant has filed his petition for rehearing and brief thereon. A majority of the Court are of the opinion that the petition should be granted. The heretofore affirmance of the cause without written opinion is therefore set aside and the following opinion adopted.

Appellant, a non compos mentis, by next friend, filed his declaration in the Circuit Court of Lauderdale County. The lower court sustained a general demurrer filed by both defendants to the declaration. It would serve no useful purpose to set out the declaration in this opinion and discuss in detail each part thereof as to whether all parts taken together state a cause of action. It suffices to say that a majority of the Court are of the opinion that a cause of action is sufficiently stated to require that the general demurrers be overruled and the cause proceed to further development under rules of practice and procedure.

Mississippi Code Annotated section 11-7-35 (1972) states:

The declaration shall contain a statement of the facts constituting the cause of action, in ordinary and concise language, without repetition; and if it contains sufficient matter of substance for the court to proceed upon the merits of the case, it shall be sufficient. It shall not be an objection to maintaining any action that the form thereof should have been different.

The declaration prepared by appellant’s attorney is inartfully drawn and should have stated appellant’s cause of action more clearly than was done. As heretofore stated, however, a majority of the Court are of the opinion that the allegations of the declaration come within the provisions of the above statute. The cause is therefore reversed and remanded for further proceedings.

REVERSED AND REMANDED.

INZER, P. J., SMITH, P. J., ROBERTSON and LEE, JJ., concur.

PATTERSON, C. J., and SUGG, WALKER, and BROOM, JJ., dissent.

PATTERSON, Chief Justice,

dissenting:

I concur in the dissent of Justice SUGG. Attached is a copy of the declaration which is said to state a cause of action. I do not think it does in ordinary and concise language as prescribed by statute.

A reading of the copy of the declaration will point out, in my opinion, its legal conclusions, omissions and deficiencies. At least I cannot state the trial court erred in sustaining the demurrer.

SUGG, J., joins in this dissent.

CIRCUIT COURT LAUDERDALE COUNTY, MISSISSIPPI, NO: 514-H

ERNEST R. COUCH, N.C.M. BY RUTHIE JEROME SCARBROUGH, HIS ADULT NEXT FRIEND PLAINTIFF VS. DR. RAMINO J. MARTINEZ, ET AL. DEFENDANTS

DECLARATION

1. The adult Plaintiff, ERNEST R. COUCH, N.C.M., files this suit by his adult daughter and next friend, RUTHIE JEROME SCARBROUGH, and shows the Court that the Plaintiff and the adult Defendants are all resident citizens of Lauder-dale County, Mississippi, where the cause of action sued on occurred. The adult Defendants are DR. JAMES T. CHAMPION and DR. RAMINO J. MARTINEZ.

2. On or about September 25, 1976, the ^ Plaintiff had been a patient at East Mississippi State Hospital for more than one year, and for a long period of time prior to that date had been under the constant care and treatment of DR. RAMINO J. MARTINEZ and DR. JAMES T. CHAMPION. At all times mentioned in this Declaration, the said DR. RAMINO J. MARTINEZ was the agent and servant of DR. JAMES T. CHAMPION, acting in the scope of his authority and in furtherance of the business of DR. JAMES T. CHAMPION.

3. For a long period of time prior to said date, and including said date, the said ERNEST R. COUCH had gangrene and this fact was well known by both Defendants and both Defendants had been advised by Competent medical doctors and others that he was in need of hospitalization and treatment that could not be afforded at East Mississippi State Hospital, and that he should be at a Hospital such as Riley Memorial Hospital, or some other qualified hospital. For a long period of time, prior to said date, his gangrene condition had been permitted to become worse by the negligence on the part of DR. RAMINO J. MARTINEZ and DR. JAMES T. CHAMPION, to an extent the flesh cleaved from the bones on both legs and lower extremities, and so that his infection became grave and stayed in an infectuous stage and his temperature rose to more than 105 degrees. The said DR. RAMINO J. MARTINEZ and DR. JAMES T. CHAMPION, both negligently failed to provide competent medical attention for the Plaintiff, and both negligently failed to have his gangrene properly treated and cared for and both negligently permitted him to suffer and his leg condition to go untreated, and his gangrene condition to not properly be treated. Finally, on September 25, 1976, over the objections of Defendants, by the hard efforts of the' family of Plaintiff, the Plaintiff was removed to F. G. Riley Memorial Hospital, where it became necessary for both of his legs to be amputated immediately, and the infection cared for, and proper medical attention administered by doctors.

4.Both Defendants negligently failed to provide proper medical attention for Plaintiff; both Defendants negligently permitted Plaintiff to suffer with gangrene for a long period of time without properly having same cared for; both Defendants negligently failed to heed the advice of competent medical doctors, who advised them that he was in need of hospitalization and treatment at other institutions; both Defendants negligently failed to care for his infection and give him proper care and treatment so that his legs could be saved without amputation and his infection not be great, and so that his temperature would not stay at such heighth; and both Defendants both negligently failed to give proper medical attention to an extent that it endangered the very life of Plaintiff, and this was done in a willful and grossly negligent manner; and both Defendants negligently failed to see that Plaintiff received proper nursing and medical care so that he was not toilet facilities and not properly bathed, cleaned, and nursed, and cared for; and both negligently refused to furnish the services of the ambulance owned by the East Mississippi State Hospital to transport Plaintiff to a proper hospital where he could be cared for by proper doctors; and both Defendants both negligently failed to release the Plaintiff from the Hospital, so that he could be cared and treated for at some other Hospital and by other doctors because of the Code of Ethics of the Hospital and doctors not wanting to receive a patient when the other doctors and hospitals were claiming to properly care for him, even though they were not properly caring for him.

5.As a direct and proximate result of the gross carelessness and negligence of Defendants aforesaid, the Plaintiff has suffered a large amount of pain and suffering, and will continue to suffer a large amount of pain and suffering in the future because of the negligence of Defendants aforesaid; and Plaintiff has incurred a large amount of medical, doctor bills, hospital bills and drug expenses, and will continue to incur such expenses in the future because of the negligence of Defendants aforesaid; and Plaintiff has lost wages and income and will continue to do so in the future because of the negligence and carelessness of Defendants aforesaid; and Plaintiff has lost both legs and permanent injuries to his body as a whole because of the gross negligence and carelessness of Defendants aforesaid.

6. All of the injuries and damages of Plaintiff are the direct and proximate result of the gross carelessness and negligence of Defendants aforesaid, and Plaintiff is entitled to recover punitive damages in this matter.

7. Plaintiff brings this suit and demands judgment against Defendants, jointly and severally, in the sum of THREE MILLION DOLLARS ($3,000,000.00), actual and punitive damages, together with all Court costs in this case.

ERNEST R. COUCH, N.C.M., BY RUTHIE JEROME SCARBROUGH, NEXT FRIEND, ALL BY THEIR ATTORNEY, LAUREL G. WEIR, Box 156, Philadelphia, Mississippi 39350:
(s) Laurel G. Weir
LAUREL G. WEIR

SUGG, Justice,

dissenting:

I dissent because the declaration does not state a cause of action against the defendants, and the trial court properly sustained the general demurrer.

The principle is well established that pleadings are construed most strongly against the pleader. Tattis v. Karthans, 215 So.2d 685 (Miss.1968) and cases cited in Mississippi Digest, Pleading, key number 34(4). It is equally well established that, on demurrer, a declaration is construed most strongly against the pleader. Mississippi State Highway Commission v. Irby, 190 So.2d 445 (Miss.1966); Mitchell v. Atlas Roofing & Manufacturing Co., 246 Miss. 280, 149 So.2d 298 (1963). We have also held that, on demurrer, doubtful allegations in a declaration will be construed against the pleader. Otis v. Gulf & Ship Island R. Co., 197 Miss. 56, 19 So.2d 241 (1944). We held in Ross v. Louisville & N. R. Co., 178 Miss. 69, 172 So. 752 (1937) that section 11-7-35 Mississippi Code Annotated (1972) does not change the rule that pleadings are to be taken most strongly against the pleader.

In Taylor v. Twiner, 193 Miss. 410, 9 So.2d 644 (1942), this Court stated:

The principle is general that a pleading is construed most strongly against the pleader, from which it follows that a pleader may not rely on inferences to be drawn in his favor from the facts stated by him unless the inference is a necessary inference, that is to say, one which is inescapable, or unavoidable from the standpoint of reason; and an inference is not inescapable or unavoidable if another and a different inference may be reasonably drawn from the facts as stated. When the existence of a particular fact is necessary to be shown, else the party relying thereon will have no cause of action, he cannot have that fact imported into his pleading through the device of inference unless, as aforestated, it is an inescapable inference, one not avoidable by any other reasonable inference. If this were not true, then the rule would be reversed and instead it would be that a pleading is considered, not most strongly against the pleader, but in his favor. (193 Miss, at 419, 9 So.2d at 646).

Plaintiff’s declaration must therefore be examined in accordance with the above principles to determine if it states a cause of action against the defendants. The declaration alleges that: (1) plaintiff had been a patient at East Mississippi State Hospital for more than a year before September 25, 1976. (2) Plaintiff had been under the constant care and treatment of Dr. Ramino J. Martinez and Dr. James T. Champion. (3) Dr. Martinez was the agent and servant of Dr. Champion, acting in the scope of his authority and in furtherance of the business of Dr. Champion. (4) For a long time before September 25, 1976, and on that date, plaintiff had gangrene and this fact was well known by both defendants who had been advised by competent medical doctors that he was in need of hospital care and treatment that could not be afforded at East Mississippi State Hospital. (5) Plaintiff’s condition had been permitted to become worse by the negligence of defendants. (6) Defendants both negligently failed to provide competent medical attention for plaintiff and- failed to have his gangrene properly treated and permitted plaintiff’s condition to go untreated. (7) Plaintiff was removed to F. G. Riley Memorial Hospital on September 25, 1976 over the objection of defendants “by the hard efforts of the family of plaintiff,” where it became necessary for both of plaintiff’s legs to be amputated immediately. (8) Plaintiff repeated his charge that defendants negligently failed to provide proper medical attention for him and negligently permitted him to suffer with gangrene “for a long period of time without having the same cared for.” (9) Plaintiff repeated his allegation that defendants failed to heed the “advice of competent medical doctors, who advised them that he was in need of hospitalization and treatment at other institutions.” (11) Plaintiff repeated his allegation that defendant negligently failed to give proper medical attention and that this was done in a willful and grossly negligent manner. (12) Defendants negligently failed “to see that plaintiff received proper nursing and medical care so that he was not (apparently some words are omitted) toilet facilities and not properly bathed, cleaned, and nursed, and cared for.” (13) Defendants negligently refused to “furnish the services of the ambulance owned by the East Mississippi State Hospital to transport plaintiff to a proper hospital where he could be cared for by proper doctors.” (14) Defendants negligently failed to release plaintiff from the hospital so that he could be “cared for and treated at some other hospital and by other doctors because the code of ethics of the hospital and doctors not wanting to receive a patient when the other doctors and hospitals were claiming to properly care for him.”

The cause of action in this case rests on the ground that a physician-patient relationship existed between plaintiff and defendants. The declaration charges a mixture of malpractice and failure to provide medical services but does not allege the manner in which the relationship of physician and patient was established.

In Braun v. Riel, 40 S.W.2d 621, 80 A.L.R. 875 (1931) the Supreme Court of Missouri stated:

Whether a physician volunteers his professional services to a suffering person or whether he contracts to render such services, or in whatsoever manner the relation of physician and patient is established, that relation and the manner of its creation should be pleaded and proved before a physician can be held liable as for a tort for any suffering of or injury or death to the patient arising out of his treatment or nontreatment of the patient during the relationship ... (40 S.W.2d at 622, 80 A.L.R. at 878, 879).

The requirement in Braun merely applied the familiar rule which obtains in this state that when a cause of action is based upon a duty owed by one party to another party, such duty must be alleged in the pleadings. The declaration in this case omits any facts pertaining to the manner in which the relationship of physician and patient was established, if in fact it existed. When the trial judge sustained the general demurrer, plaintiff was given the opportunity to amend, but declined. I would affirm because the declaration does not show the manner of the creation of the relationship of the physician and patient, if any. Neither may we draw a necessary or inescapable inference from the facts alleged in the declaration that the relationship of physician-patient existed. Absent this relationship there was no duty owed the plaintiff by the defendants.

PATTERSON, C. J., and WALKER and BROOM, JJ., join this dissent.

      . The declaration shall contain a statement of the facts constituting the cause of action, in ordinary and concise language, without repetition; and if it contains sufficient matter of substance for the court to proceed upon the merits of the cause, it shall be sufficient. It shall not be an objection to maintaining any action that the form thereof should have been different.


text:
    Wilbert LEE v. STATE of Mississippi.
    No. 50340.
    Supreme Court of Mississippi.
    March 29, 1978.

      Brown, Alexander & Sanders, R. Jess Brown, Jackson, for appellant.
    A. P. Summer, Atty. Gen. by Karen Gil-foy, Asst. Atty. Gen., Jackson, for appellee.
    Before PATTERSON, C. J., BROOM and BOWLING, JJ., and MAPLES, Commissioner.
   DARWIN MAPLES, Commissioner for the Court:

Appellant was brought before the First District Justice Court of Simpson County on February 14,1976, to answer to the State of Mississippi on the charge of driving while intoxicated. Upon a plea of not guilty, appellant, represented by counsel, was tried, convicted and sentenced to serve a term of ninety (90) days in jail and fined a sum of Three Hundred Twenty ($320.00) Dollars. Appellant perfected an appeal to the Circuit Court of Simpson County, where, on motion of appellant’s counsel, the circuit court remanded the case to the justice court by means of an order for a writ of procedendo. Appellant changed attorneys and prosecutes this appeal from an order overruling appellant’s motion, which was timely made, to set aside the writ of procedendo and reinstate the appeal.

Appellant makes the following assignments of error:

The trial court erred in overruling appellant’s motion to set aside the writ of proce-dendo and reinstate appeal on the following grounds:

1. That appellant was denied a hearing on the motion;
2. That the finding is unsupported by the evidence in the record;
3. That the order dismissing his appeal on writ of procedendo was invalid and constituted reversible error on its face.

Appellant maintains that had he been afforded a hearing upon his motion to set aside the dismissal of his appeal he would have shown that at no time did he authorize his attorney, who was representing him at the time, to move the court to dismiss his appeal and order the issuance of a writ of procedendo to the justice court, and said action of his attorney was without his knowledge, understanding and consent. Appellant further contends that without a hearing he was denied the right to confront the evidence upon which the order overruling the motion was based. However, after a search of the record it appears that appellant’s second attorney never requested a hearing on the motion to set aside the writ of procedendo. Since it is well settled in Mississippi that the burden is on the mov-ant, when a motion or other dilatory pleading is filed, to pursue said motion to hearing (Circuit Court Rules of Mississippi, Rule 8; Burchan v. Estate of Burchan, 303 So.2d 476 (Miss.1974)) it was incumbent upon appellant to make his desire to be heard known to the court. Evers v. Truly, 317 So.2d 414 (Miss.1975). In accord, Dyer v. State, 300 So.2d 788 (Miss.1974). Failing to request a hearing, appellant cannot come back later and complain that he was denied a hearing and the benefits therein.

While under Rule 8, supra, failure to pursue a motion to a hearing constitutes an abandonment of said motion, if the Court nevertheless elects to act on said motion ex mero motu or sua sponte, the ruling of the Court must be based on facts or evidence before the Court. Facts or evidence sufficient to base an issuance of a writ of procedendo were set out in McCoy v. State, 302 So.2d 509 (Miss.1974). In McCoy, the Court held that:

An order dismissing an appeal on a writ of procedendo which does not affirmatively show that the defendant was called in open court and thereby given an opportunity to prosecute his appeal constitutes reversible error. (Emphasis added).

While it may be inferred that the appellant was present during the motion to dismiss the appeal on writ of procedendo, it was not affirmatively shown. Since the record is not conclusive as to the appellant’s presence, a hearing becomes necessary to ascertain whether the waiver of appeal and issuance of a writ of procedendo fell within the McCoy standard. This would be the better practice, since where the justice court had already found the appellant guilty and had passed sentence in the cause, an order dismissing an appeal on a writ of procedendo is tantamount to a guilty plea and acceptance of the justice court sentence.

Accordingly, where the motion to set aside the writ of procedendo and reinstate appeal was timely filed and where the court ex mero motu elected to act on said motion, it was error to enter an order overruling said motion without affording the appellant a right to a hearing. It is, therefore, the opinion of this Court that the order overruling the motion to set aside the writ of procedendo and reinstate appeal should be set aside and the order for a writ of proce-dendo be reversed and remanded for a hearing to ascertain whether the dismissal of appeal was proper, or whether appellant’s motion to reinstate the appeal should be sustained.

REVERSED AND REMANDED.

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

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


author: BOWLING, Justice,

text:
    Jimmy PETERSON v. STATE of Mississippi.
    No. 50292.
    Supreme Court of Mississippi.
    March 29, 1978.

      Roy Pitts, Meridian, for appellant.
    A. F. Summer, Atty. Gen., by Robert D. Findley, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before PATTERSON, C. J., and BROOM and BOWLING, JJ.
   BOWLING, Justice,

for the Court:

Appellant was indicted, tried and convicted in the Circuit Court of Lauderdale County of the crime commonly known as “fondling,” and was sentenced to serve a term of four years under the Mississippi Department of Corrections.

On appeal he sets out two assignments of error:

1. The trial court erred in allowing the indictment to be amended by adding into the wording and charge thereof the words “a male person” after the name of appellant; and
2. The trial court erred in not granting a mistrial when the prosecution commented on the failure of the accused to testify.

Appellant was indicted under Mississippi Code Annotated section 97-5-23 (1972), which reads as follows:

Any male person above the age of eighteen years, who, for the purpose of gratifying his lust, or indulging his depraved licentious sexual desires, shall handle, touch or rub with hands or any part of his body or any member thereof, any child under the age of fourteen years, with or without his consent, shall be guilty of a high crime and upon conviction thereof, shall be fined in any sum not less than ten dollars ($10.00) nor more than one thousand dollars ($1,000.00), or be imprisoned in the state penitentiary not less than one year nor more than ten (10) years, or be punished by both such fine and imprisonment, at the discretion of the court.

The original indictment did not specify that appellant was “a male person” but charged that

Jimmy Peterson, in said county, on the 27th day of August, A.D., 1974, being above the age of eighteen years, did wil-fully, unlawfully and feloniously for the purpose of gratifying his lust handle, touch or rub with his hands Teresa Bryant, a child under the age of fourteen years. . . . (Emphasis supplied)

Appellant demurred to the indictment and also filed a motion to quash. Upon motion of the state, it was allowed to amend the indictment so as to add that appellant was a “male person.”

Code section 99-7-21 provides as follows: All objections to an indictment for a defect appearing on the face thereof, shall be taken by demurrer to the indictment, and not otherwise, before the issuance of the venire facias in capital cases, and before the jury shall be impaneled in all other cases, and not afterward. The court for any formal defect, may, if it be thought necessary, cause the indictment to be forthwith amended, and thereupon the trial shall proceed as if such defect had not appeared.

The question under this assignment of error is whether or not the failure to specifically charge that the appellant was a male person is a' formal defect which is curable or the omission of an essential element rendering the indictment void.

In the relatively short indictment the description of the charge used the word “his” in two different places. Therefore, we see that appellant was fully advised in the indictment that he was accused of being a male. In our opinion, the omission of the words “male person” was merely a formal defect which properly was added by amendment. The present case is distinguishable from the prior cases advanced by appellant; these being Burchfield v. State, 277 So.2d 623 (Miss.1972), and Love v. State, 211 Miss. 606, 52 So.2d 470 (1951). In the present case the indictment was amended according to statute and properly so.

During the State’s closing argument to the jury, the assistant district attorney made the following statement:

The only witness you have heard concerning whether or not Jimmy Peterson put his hand on Teresa Bryant’s leg was Teresa Bryant. She said he did. Not one single witness testified that Jimmy Peterson did not touch and rub Teresa Bryant’s leg when he went into her bedroom without a stitch of clothes on. Teresa Bryant is the only witness that took the witness stand and said what happened and she said that he did it.

Prompt objection was made by appellant’s attorney on the ground that the argument was an improper comment on the appellant’s failure to testify. The court sustained the objection and directed the jury to disregard the comments. The motion for a mistrial was overruled. All proceedings were preserved by a properly filed special bill of exceptions.

It is elemental that if an accused does not testify this cannot be commented on by the State. Code section 13-1-9 provides:

The failure of the accused, in any case, to testify shall not however operate to his prejudice or be commented on by counsel.

The question before the Court was discussed thoroughly in Lambert v. State, 199 Miss. 790, 25 So .2d 477 (1946). In its opinion the Court set out the following discussion:

Lambert was convicted of robbery, sentenced to three years in the state penitentiary, and he appeals.
He did not testify. The district attorney, in his closing argument to the jury, said: “Where is the testimony that he did not do it? ... There’s no denial.” Counsel for Lambert immediately objected to this argument and moved the court for a mistrial, which the court overruled. Lambert contends that this was a comment by the district attorney upon his failure to testify in his own behalf and was a violation of Section 1691, Code 1942, which reads: “The accused shall be competent witness for himself in any prosecution for crime against him; but the failure of the accused, in any case, to testify shall not operate to his prejudice or be commented on by counsel.”
The following Mississippi cases were reversed and remanded under this statute for remarks made by the State’s attorney: Yarbrough v. State, 70 Miss. 593, 12 So. 551; Reddick v. State, 72 Miss. 1008, 16 So. 490; Sanders v. State, 73 Miss. 444, 18 So. 541; Hoff v. State, 83 Miss. 488, 35 So. 950; Smith v. State, 87 Miss. 627, 40 So. 229; Prince v. State, 93 Miss. 263, 46 So. 537; Harris v. State, 96 Miss. 379, 50 So. 626; Gurley v. State, 101 Miss. 190, 57 So. 565; Harwell v. State, 129 Miss. 858, 93 So. 366; Winchester v. State, 163 Miss. 462, 142 So. 454.
Some of the statements made in the foregoing cases were clearly comments upon the failure of defendants to testify, so that we will discuss only those of doubtful meaning and application and which are most similar to the remarks made in the case at bar.
In the Reddick case, counsel for the State, referring to an alleged admission made by the accused to one Swayzee, said: “And he has not denied it.” When counsel for defendant suggested the impropriety of this comment, State’s counsel corrected himself and then said: “It has not been denied.” The trial judge instructed the jury to disregard the remarks. The State’s attorney testified on motion for new trial that it was not his intention to refer to the fact that the defendant had not testified. However, this Court said that the intention of the attorney is immaterial; that the test is whether the language can be reasonably construed to be a comment upon the failure of defendant to take the stand. The case was reversed and remanded..
In the Sanders case, the comment was “There was enough in this evidence to make it incumbent on the defendant to deny it, and he has not done so.” On objection to this, the court reminded counsel he could not refer to the fact that the defendant had not testified and told the jury to disregard the remarks; whereupon counsel for the State said: “Well, then, consider that not said.” This Court held that the error was not cured and reversed the case.
In Hoff v. State, the prosecuting attorney, holding in his hand a letter introduced as having been written by the defendant to the woman he was charged with having seduced, said “Nobody on earth denies that he wrote it No living soul has denied that defendant seduced this little girl.” The case was reversed for those remarks.
In Smith v. State [87 Miss. 627, 40 So. 230], four persons were present on the occasion of the homicide, the defendant, the deceased, and two state witnesses. The district attorney said: “No one had denied that he . killed Buchanan.” “No one has denied that the witness Hobson was sober.” This Court, speaking through Judge Truly, said those remarks could “only be reasonably construed as comments upon the failure of the defendant to testify in his own behalf,” since the only eyewitnesses other than defendant had been introduced by the State; that these comments necessarily directed the attention of the jury to the fact that the defendant had not testified. The Court said further: “As long as the law stands as now written, it prohibits any comment upon the failure of the defendant to testify. And this is true without regard to the character of the comment, or the motive or intent with which it is made.” In the Prince case, the district attorney said: “Gentlemen of the jury, he confessed the killing of McAllister to Will Jones, and that confession stands uncontradicted before you to-day.” The court sustained the objection to this statement “if counsel had reference to defendant’s failure to go on the stand.” The district attorney replied that he had no intention of referring to that, whereupon the Judge instructed the jury not to consider the remarks. However, this Court felt compelled to reverse the case, Judge Whitfield saying: “This Court has several times, in the most positive and emphatic way, held that any sort of reference, of any character whatever, to the failure of a defendant to testify, constitutes reversible error.”
The Gurley case involved a shooting affray between Dr. Davis and Gurley. Each shot the other and Dr. Davis died and Gurley was charged with his murder. Defendant’s counsel in his argument had said that if the defendant had died instead of Dr. Davis that Dr. Davis would have been charged with murder of the defendant. The district attorney, replying to that argument, said [101 Miss. 190, 57 So. 566]: “If that was true, he would have put Blankenship and other witnesses up, and Dr. Davis would have mounted the stand and told how that occurred.” This Court said: “No ingenuity, however artful, no subtlety, however refined, can escape the conclusion that this statement made by the prosecuting counsel held up to the jury the failure of the defendant to testify ... If the other man, Dr. Davis, were on trial, he would be more frank, and not be afraid of a full disclosure; but this defendant was afraid of a full disclosure, and hence dared not testify.”
The Court quoted from the Yarbrough case, supra, wherein the Court said: “The word ‘comment,’ as employed in the statute, does not mean to criticise or condemn or anathematize the accused for his failure to testify. It forbids, in unmistakable language, any comment, friendly or unfriendly. It forbids any remark, of any character, in any words, upon the failure of the accused to testify. The attention of the jury is not to be called to the fact at all by counsel. . . ”
In Winchester v. State, 163 Miss. 462, 142 So. 454, 456, the district attorney said: “What defense has been shown here? There is no denial that he killed her . Not a single soul has said she was not shot as this Darden woman has told you.” This Court observed that since appellant and the State’s witness Leona Darden, were the only eyewitnesses to the killing, the language of the State’s attorney “could have meant nothing less than a comment on appellant’s failure to testify . . ."

The Court has reiterated the foregoing principles in the recent case of Hines v. State, 339 So.2d 56 (1976). See also Brown v. State, 340 So.2d 718 (Miss.1976); Chatman v. State, 244 Miss. 659, 145 So.2d 707 (1962).

We will not go into a discussion of the evidence upon which appellant was convicted. It suffices to say that the young female involved and appellant were the only persons present when the alleged incident occurred. The young girl’s testimony was sufficient to justify a conviction of appellant under the indictment. No one testified in appellant’s behalf regarding the facts of the incident. The State advances a strong argument that the statement of the assistant district attorney was cured by prior instructions given the jury that they could not construe appellant’s failure to testify against him in any manner whatsoever. As heretofore stated, the erroneous statement was made in the State’s closing argument and the statement only served to impress on the jury the fact that appellant did not take the stand and dispute the testimony of the only direct witness against him. The State relies on the case of Barnes v. State, 230 Miss. 299, 92 So.2d 863 (1957), in contending that appellant was not prejudiced because of the instructions to the jury. In Barnes the comment was held not to be reversible error. The comment there, however, was different from the comment now before the Court and, as said previously, each case on these types of matters has to be considered in the light of that particular case. The facts of all are different. The comment in Barnes was not directed to the guilt or innocence of the accused. The comment in the present case clearly is directed toward that part of the case.

We hold that the comment of the prosecution was erroneous and constitutes reversible error. The motion for a mistrial should have been granted. Therefore, it is necessary for the cause to be reversed and remanded for a trial before another jury.

REVERSED AND REMANDED.

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


text:
    Lesko WALKER v. STATE of Mississippi.
    No. 50405.
    Supreme Court of Mississippi.
    April 5, 1978.
    Parsons & Matthews, Thomas M. Matthews, Jr., Wiggins, for appellant.
    A. F. Summer, Atty. Gen. by Marvin L. White, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before SMITH, P: J., Lee and COFER, JJ., and WILLIAM R. LAMB, Commissioner.
   AFFIRMED.


text:
    Velma HAWTHORNE v. Dr. Aaron SHIRLEY et al.
    No. 50208.
    Supreme Court of Mississippi.
    April 5, 1978.
    Abe A. Rotwein, Jackson, for appellant.
    Anderson, Banks, Nichols & Stewart, Fred L. Banks, Jr., Regina Epps, Jackson, for appellees.
    Before SMITH, P. J., and LEE and COF-ER, JJ.
   AFFIRMED.

BOWLING, J., took no part.


text:
    CENTRAL RIVER INDUSTRIES, INC., d/b/a Central River Terminal v. JOSEPH T. RYERSON & SONS, INC.
    No. 50220.
    Supreme Court of Mississippi.
    April 5, 1978.
    Ramsey, Bodron, Thames & Robinson, Dean Andrews, Jr., Vicksburg, for appellant.
    Dabney & Dabney, Lucien B. Dabney, Jr., Vicksburg, for appellee.
    Before SMITH, P. J., and LEE, BOWLING and COFER, JJ.
   AFFIRMED.


text:
    Robert Devor CAMPBELL, Jr. v. TOWN & COUNTRY MOBILE HOMES OF MISSISSIPPI and Insurance Company of North America.
    No. 50558.
    Supreme Court of Mississippi.
    April 5, 1978.
    Carnathan & Davidson, Gary L. Carna-than, Tupelo, for appellant.
    B. L. Riddick, Jackson, for appellees.
    Before SUGG, WALKER and COFER, JJ.
   AFFIRMED.


text:
    WINFIELD MANUFACTURING COMPANY and Insurance Company of North America v. Inner Jean BOHANON.
    No. 50645.
    Supreme Court of Mississippi.
    April 5, 1978.
    McCoy & Wilkins, Joseph T. Wilkins, III, Jackson, for appellants.

      William S. Lawson, Tupelo, for appellee.
    Before SUGG, WALKER and COFER, JJ.
   AFFIRMED.


text:
    Douglas Charles SUTTON v. STATE of Mississippi.
    No. 50334.
    Supreme Court of Mississippi.
    April 5, 1978.
    McTeer, Walls, Bailey & Buck, Robert E. Buck, Greenville, for appellant.
    A. F. Summer, Atty. Gen. by Wayne Snuggs, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before PATTERSON, C. J., BROOM and BOWLING, JJ., and DARWIN MAPLES, Commissioner.
   AFFIRMED.

SMITH and ROBERTSON, P. JJ., and SUGG, WALKER, LEE and COFER, JJ., concur.


author: LEE, Justice,

text:
    NEW HAMPSHIRE INSURANCE COMPANY v. Gladys W. SMITH.
    No. 50201.
    Supreme Court of Mississippi.
    April 5, 1978.

      Downey & Jennings, John H. Downey, Jackson, for appellant.
    Michael J. Malouf, Jackson, for appellee.
    Before SMITH, LEE and COFER, JJ.
   LEE, Justice,

for the Court:

New Hampshire Insurance Company has appealed from a judgment of the Circuit Court, First Judicial District of Hinds County, in favor of Gladys W. Smith, for actual damages in the sum of five hundred dollars ($500.00) and punitive damages in the sum of thirty-five hundred dollars ($3,500). The following errors are assigned in the trial below:

(1) The court erred in refusing appellant’s request for a peremptory instruction and in overruling appellant’s motion for judgment n.o.v.

(2) The court erred in submitting to the jury the issue of punitive damages and in refusing appellant’s requested peremptory instruction on that issue.

(3)The court erred in granting appellee’s Instructions P-11, P-13 and P-14, and in refusing appellant’s requested Instruction D-4.

Appellee injured her back on January 25, 1976, while helping move an invalid neighbor, Mrs. J. M. Middleton, who had fallen in her (Middleton’s) home. Appellee was admitted to the hospital by Dr. Willard Bog-gan and was confined there fourteen (14) days. Appellant had previously issued to Mrs. Middleton a comprehensive insurance policy covering the premises, which, among other provisions, provided five hundred dollars ($500.00) medical payment for injuries sustained by anyone on the premises and twenty-five thousand dollars ($25,000) liability coverage.

On February 5, 1976, appellee notified appellant of her medical claim, and on that date appellant retained Grant Adjustment Agency to investigate the matter. On February 23, 1976, Grant reported to appellant that appellee had hurt her back trying to help Mrs. Middleton from the floor. It was further reported that appellee became upset when she was told that the maximum medical coverage in the policy was $500.00. She informed Grant that she expected her entire bills to be paid and that she would not submit any bills unless all were paid. On February 24, 1976, appellant requested Grant to contact appellee again and advise her that, if she would submit her bills, they would be paid to the extent of $500.00.

Appellee retained an attorney to represent her on a claim for personal injuries against Mrs. Middleton under the liability provision of the policy. The attorney discussed the medical payment clause of $500.00 with appellant and requested that such amount be forwarded to him. He further advised appellant that a liability suit was being filed for personal injuries sustained by appellee.

A short time prior to August 28,1976, the deposition of appellee was taken by appellant in the pending personal injury action, and it was discovered that Dr. William B. Thompson, an orthopedic surgeon, had examined her. She stated in the deposition that she had sustained two fractured vertebrae. On August 28, 1976, appellant received from appellee’s attorney a medical report prepared by Dr. Boggan, dated April 19, 1975 (sic), in which he described injuries sustained by her on January 25, 1976.

The present case was filed September 20, 1976, only twenty (20) days after appellant received Dr. Boggan’s medical report. Ap-pellee sought actual damages and punitive damages for the willful, intentional and malicious refusal of appellant to comply with the provisions of the policy. Appellant denied liability for the amounts sued on, and affirmatively pled the policy provisions which required claimant to furnish medical reports or authorizations for the company to consult with physicians attending claimant. On the date of trial, appellee filed a reply to the affirmative defenses stating that appellant had waived its right to medical reports and medical authorizations. There was a great deal of contact between appellant and appellee and their attorneys from the date of injury until trial date of the present case. The record indicates that the greatest interest and concern of the parties and their attorneys were directed toward the personal injury claim and suit rather than the $500.00 medical payment.

Clear and convincing evidence is required to establish waiver of important provisions of an insurance contract [Michigan Mutual Insurance Co. v. Lindsey, 285 So.2d 908 (Miss.1973)], and we are of the opinion that the proof was insufficient to establish such a waiver in the present case. The fact that appellee furnished appellant a copy of Dr. Boggan’s medical report on August 28, 1976, which had been in her possession since April 19, 1976, is indicative that appellee did not then consider appellant had waived the medical authorization provision of the policy. Appellant strongly contends that it was entitled either to a copy of Dr. Thompson’s report or to an authorization for it to consult with Dr. Thompson regarding appellee’s injuries,, or both, with which contention we agree. Punitive damages are not recoverable for a breach of contract unless such breach is attended by intentional wrong, insult, abuse or such gross negligence as to consist of an independent tort. Lincoln Nat. Life Ins. Co. v. Crews, 341 So.2d 1321 (Miss.1977); Progressive Casualty Insurance Company v. Keys, 317 So.2d 396 (Miss.1975). The proof in the present case does not reach the standard stated in the above cases, and the lower court erred in refusing to grant appellant a peremptory instruction on the issue of punitive damages.

The evidence is undisputed that appellant admitted it owed the maximum sum of $500.00 to appellee and that it would pay said amount when medical bills were received substantiating the claim. The medical bills furnished appellant and admitted in evidence at the trial were in excess of two thousand dollars ($2,000). Appellee was hospitalized fourteen (14) days immediately following her injury. The medical report of Dr. Boggan [See Appendix] was furnished appellant August 28, 1976, and was introduced in evidence at the trial of the case. The evidence is overwhelming that appellee was injured on the premises covered by the policy and that she sustained medical expenses in excess of $500.00 as a result of said injuries. We are of the opinion that the trial court was correct in overruling the requested peremptory instruction on actual damages, and that the case should be affirmed as to such damages.

In view of the conclusion reached herein-above, it is not necessary to discuss assigned Error No. 3 relating to instructions.

AFFIRMED AS TO ACTUAL DAMAGES; REVERSED AND RENDERED AS TO PUNITIVE DAMAGES.

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

APPENDIX

WILLARD H. BOGGAN, M.D.

JAMES P. HOLLOWAY, M.D.

University Plaza

500-M East Woodrow Wilson

Jackson, Mississippi 39216

Internal Medicine

April 19, 1975

Mr. Michael J. Malouf

126 South President St

Jackson, Miss.

RE: Mrs. J. W. (Gladys) Smith

Dear Sir:

On January 25, 1976 Mrs. Smith was lifting a friend and sustained a severe pain in the lumbar area, a slipping type of sensation following which she had excruciating pain requiring hospitalization. X-ray studies there do show evidence of mild compression and disease of lumbar area. I feel that she did sustain very definite severe lumbar strain from which she continues to have pain and is under skeletal muscle relaxants and sedation. In all probability she will continue to have symptoms for some several months.

Very truly yours,

/s/ Willard H. Boggan

WILLARD H. BOGGAN, M.D.

WHB/sl