author: FORET, Judge. WATSON, Judge,

text:
    Carl Bradford PHILLIPS, Plaintiff-Appellee, v. DRESSER ENGINEERING CO. & the Home Indemnity Company, Defendants-Appellants.
    No. 6149.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 17, 1977.
    Rehearing Denied Nov. 10, 1977.

      Raggio, Farrar, Cappel & Chozen by R. W. Farrar, Jr., Lake Charles, for defendants-appellants.
    Nathan A. Cormie and Ronald J. Bertrand by Ronald J. Bertrand, Lake Charles, for plaintiff-appellee.
    Before DOMENGEAUX, WATSON and FORET, JJ.
   FORET, Judge.

This appeal derives from the judgment of the trial court in favor of plaintiff-appellee, Carl Bradford Phillips, and against defendants-appellants, Dresser Engineering Company and The Home Indemnity Company, awarding plaintiff total and permanent compensation benefits, penalties in the amount of 12% on all weekly compensation benefits overdue or which in the future become overdue by a period in excess of sixty (60) days, and attorney fees in the amount of $3,000.00. Defendants have appealed from such judgment and assign as errors:

(1) The trial court finding that appellee was totally and permanently disabled;
(2) Alternatively, the trial court erred in finding that plaintiff suffered substantial pain in performing work subsequent to April 2, 1976;
(3) The court erred in awarding penalties;
(4) The trial court erred in awarding the sum of $3,000.00 as attorney fees. Plaintiff-appellee answered the appeal,

and prayed for an increase in attorney fees to $5,000.00.

After a close scrutiny of the entire record on appeal, we conclude that the judgment of the trial court was correct and adopt its reasons therefor as our own, quoting in part as follows:

“This is a workmen’s compensation case wherein plaintiff alleges that he was totally and permanently disabled on October 15, 1975, while he was employed by defendant, Dresser Engineering Company of Oklahoma as a welder’s helper. Dresser Engineering Company of Oklahoma is a contracting and construction company and at the time of the accident it was engaged in installing pipe and equipment at Johnson Bayou, Louisiana. Home Insurance Company is the compensation carrier for defendant, Dresser Engineering Company of Oklahoma. Plaintiff was a welder by trade but he had been unable to get a job as a welder and had taken the job with defendant, Dresser Engineering Company of Oklahoma as a helper until such time as he could work as a welder. Plaintiff testified that on the day of the accident he and his co-workers were installing a 2-inch pipeline. As a welder’s helper he was required to work with other helpers, carry the 30-foot lengths of pipe and place them in position to be welded, grind the end of the pipe if necessary and after the welder had made the weld to clean and dress the weld. It seems that it was necessary to carry the pipe across a ditch and roadway to the welding site. The procedure of carrying the pipe and placing it in position for welding had been in progress' all morning on October 15, 1975. Just before the alleged injury, plaintiff and either two or three co-workers picked up a joint of pipe to carry it across the ditch and roadway to the welding site. There is conflicting testimony as to whether four men carried the pipe. There is no conflict in the testimony that plaintiff was in the center of the length of pipe and that it was carried on their shoulders. Plaintiff testified that the men on the end of the pipe in front and he had already crossed the ditch when the man or men behind him and carrying the other end of the pipe apparently stepped into the ditch. This caused the weight of the pipe to be suddenly thrust upon plaintiff. He said he felt a sudden pain in his back between his shoulder blades, he was unable to hold the weight and he allowed the pipe to slide off his right shoulder along his arm and held it with his hand. At that point the man behind him was able to hold some weight and they proceeded to carry the pipe to the welding site. After the pipe was placed in position plaintiff testified it was time to knock off for lunch so he walked over to where some of the welders was standing near a truck and told them he was going home for lunch. Although he said he did not think at the time he was injured he mentioned to them that he had sprained his back. Plaintiff lived nearby and he testified that when he arrived home the pain in his back had become intense and he lay down on a couch. When it came time to return to the job after lunch he testified that the pain was so severe that he knew he would be unable to continue working that day. Plaintiff apparently felt that he should report back to the job site so he lay down on the back seat of the family automobile and his wife drove him back to his place of employment. Both Mr. and Mrs. Phillips talked to Mr. Murl Clark, the superintendent and advised him of the injury. Mr. Clark testified that when he was informed of the accident he filled out an accident report form for his company. Upon questioning by the Court, Mr. James Harrell, Division Manager for Dresser Engineering testified that the report forms were furnished the field locations in case of an accident. Mr. Clark, the foreman, also testified that after making out the accident report he notified the division office in New Iberia by telephone either the same day or the following day. At the time the report was filled out by Mr. Clark, plaintiff testified that he told his supervisor that he needed to see a doctor and that Mr. Clark made no recommendations as to which doctor to see. Mr. Clark also testified that plaintiff had told him that he needed to see a doctor and that he, Clark, did not make a recommendation as to who plaintiff should see. Plaintiff then testified that he and his wife went to the West Calcasieu-Cameron Hospital in Sulphur, Louisiana, some 45 miles away. Plaintiff said he went to the hospital emergency room and was advised that they could not help him. The hospital sent him to see a Dr. Charles Smith whose office was nearby. Dr. Smith examined plaintiff, gave him a prescription and said if the pain persisted to come back and see him. Plaintiff had the prescription filled in Sulphur and returned to his home in Johnson Bayou. After continuing to have difficulty, plaintiff went to see Dr. Cecil Clark in Cameron, Louisiana on October 17, 1975. Dr. Clark examined plaintiff and had an x-ray made. Dr. Clark testified that he could find no fractures and the x-ray did not show any abnormality although plaintiff was experiencing considerable muscle spasm in his upper back. He prescribed drugs for pain and told plaintiff to come back in a few days. On October 20, 1975, plaintiff returned to Dr. Clark still experiencing pain and he was sent to the South Cameron Hospital for x-rays. Dr. Clark testified that the x-rays were made by Dr. Romero, a radiologist at the South Cameron Hospital and he received a report from Dr. Romero indicating that there was wedging and a compression fracture of three verte-bras in the upper back. When asked why the x-rays he had taken a few days earlier did not show such fractures Dr. Clark explained that it was normal and usual for such compression fractures not to manifest themselves until sometime after the accident. Dr. Clark saw plaintiff on a number of occasions and plaintiff continued to have difficulty. Dr. Clark testified that he concluded plaintiff should see a specialist and he was sent to Dr. Akins in Lake Charles, an orthopaedist.
“Dr. Akins did not testify in open court, but his deposition was introduced into evidence. Dr. Akins testified that he saw Mr. Phillips for the first time on November 19, 1975 at which time he was complaining of low back pain. Dr. Akins found no objective symptoms of injury or pain with the exception of a possible fracture of the first lumbar vertebra. Dr. Akins prescribed a corset for plaintiff at that time. On December 9, 1975, Dr. Akins again x-rayed plaintiff and confirmed a fracture of the LI vertebra. He prescribed continued use of the corset and estimated disability at that time from three to six months from date of injury. Dr. Akins again saw plaintiff on January 9, 1976, at which time plaintiff was complaining with pain in the thoracic area. At this time x-ray revealed that the disc between the T12 thoracic vertebra and the LI lumbar vertebra was beginning to calcify, as is typical he stated, after a compression fracture type injury. At this time the patient was given an injection of cortisone to relieve the pain. He saw plaintiff next on February 20, 1976, and again injected the patient as he was still having pain. On April 6, 1976, Dr. Akins saw plaintiff for the last time. On this visit plaintiff said he was still having some pain but requested the doctor to permit him to return to light duty. At trial, Mr. Phillips explained that he was having severe economic problems in April of 1976 and that was the reason he asked Dr. Akins to permit him to return to work. As of April 6, 1976, Dr. Akins testified he was of the opinion that Mr. Phillips would have a permanent disability of 3% to the individual and if the pain persisted, the percentage of disability would increase. Furthermore, Dr. Akins testified that if the pain did continue, then disability would continue until such time plaintiff underwent surgery.
“After Dr. Akins released plaintiff to light duty in April of 1976, plaintiff did not seek further medical attention until August 3, 1976 when he returned to Dr. Clark, still complaining of high and low back pain. Although Dr. Clark saw plaintiff again on August 18, 1976, he testified that in his opinion, plaintiff is not going to improve and that his condition is going to steadily worsen. Plaintiff testified that he is still having considerable difficulty. He testified that because of his severe economic situation, it was absolutely necessary that he worked [sic]. He testified that he found a job in Alvin, Texas as a welder where he is working at present. This employment does not require him to do any lifting and he is able to do most of his welding in a sitting position. He testified that he can only sit for 20 or 30 minutes at a time and then it is necessary for him to get up' and move around in an effort to relieve the pain in his back. Plaintiff testified that the pain in his back is continual and that at times it is so severe that he is unable to sleep at night. Mrs. Phillips and Clayton Henry, plaintiff’s step-father, both verified that plaintiff was having difficulties with his back and that he had no difficulty prior to October 15, 1975.
“At the request of Home Insurance Company of New Orleans, plaintiff was examined by Dr. Jerome Ambrister who testified by deposition. This examination occurred on August 11, 1976. Dr. Ambrister testified that he found no objective symptoms of pain or disability. Dr. Ambrister did find a wedging type of deformity of the first lumbar vertebra. In the opinion of Dr. Ambris-ter, the deformity of LI vertebra was of long standing, that is, not a result of the accident of October 15, 1975. Also, Dr. Ambrister did not find the new calcification as did Dr. Akins. Dr. Ambrister also testified that it is possible for a patient to have pain without having objective signs.
“The issues before the Court are:
1. Was plaintiff hurt or injured during the course and scope of his employment.
2. If he was injured, what is the extent and duration of his disability.
3. Was the employer arbitrary and capricious in failing to provide workmen’s compensation benefits and medical attention, thus entitling plaintiff to penalties and attorney’s fees.
“The Court concludes that plaintiff was injured during the course and scope of his employment.
“The issue of the extent and duration of disability presents somewhat of a dilemma. Prior to September 1, 1975, R.S. 23:1221 provided for compensation benefits for injury producing disability to do work of any reasonable character. It has been held that an injured workman who is unable to perform his usual and normal duties without pain is totally disabled. That is to say, such an injured workman is handicaped [sic] in competing with other able bodied workers in the common labor market. Duray v. Continental Insurance Company, 332 So.2d 312 (La.App. 4th Cir. 1976); Jones v. Shreveport Lumber Products Company, 299 So.2d 438 (La.App. 2nd Cir. 1974).
“In Lawless v. Steel Erectors, Inc., 254 La. 37, 222 So.2d. 849 (1969), the Supreme Court through Justice Summers said:
The test applied by the courts in determining permanent total disability is expressed in Lindsey v. Continental Casualty Company, 242 La. 694, 138 So.2d 543 (1962) in these words:
“ * * * (A) skilled worker is deemed totally disabled within the intendment of the law if he is unable to do work of the same character as that which his training, education, and experience qualify him to perform, without unusual difficulty or danger. This rule is applicable to a skilled worker who cannot perform a substantial portion of the work incident to his special occupation.” See also Oliver [Olivier] v. Liberty Mutual Insurance Co., 241 La. 745, 131 So.2d. 50 (1961) and Brannon v. Zurich General Accident & Liability Insurance Co., 224 La. 161, 69 So.2d. 1 (1953).
“By act No. 583 of 1975, 23:1221 was amended so as to delete the phrase “to do work of any reasonable character” and in its place there was added the phrase “to engage in any gainful occupation for wages whether or not the same or a similar occupation as that in which the employee was customarily engaged when injured and whether or not an occupation for which the employee, at the time of injury, was particularly fitted by reason of education, training, and experience.” The pertinent portion of R.S. 23:1221, as to permanent and total disability, provides:
Compensation shall be paid under this Chapter in accordance with the following schedule of payments:
For injury producing permanent total disability of an employee to engage in any gainful occupation for wages, whether or not the same or a similar occupation as that in which the employee was customarily engaged when injured and whether or not an occupation for which the employee, at the time of injury, was particularly fitted by reason of education, training, and experience, sixty-six and two-thirds per centum of wages during the period of such disability.
“Obviously the legislature intended to modify and amend the workmen’s compensation act and to legislatively change the judicial definition of total disability. Prior to September 1, 1975, a workman was disabled if he could not return to the same or similar work, perform the same duties without danger to himself and others and all without pain.
“Commencing in April of 1976, plaintiff began working in his trade as a welder but in considerable and substantial pain. His explanation for going to work at that time [was] because of severe financial conditions. His explanation was certainly logical and plausible. He had been off work since October 15, 1975 and had received no compensation benefits of any kind. Yet, a literal interpretation of the amended act would seem to indicate that if plaintiff is working, he is not permanently disabled but only partially disabled. I cannot believe that it was the intent of the legislature to require an injured workman who has never fully recovered from his injury, to go out and find employment and to work in substantial pain. Such a workman would be a hazard to himself and all fellow workers. In my judgment, I feel that it was the intention of the legislature to say in effect, if a workman has recovered from his injury to such an extent that he may do some income producing work, but not the same work as before injury, then he may not recover benefits under the act as a totally and permanently injured workman. [However] I do not interpret the amended act to mean a workman who is in substantial pain while doing any work must still return to some gainful employment. To hold otherwise would mean that only a paraplegic could be considered totally and permanently disabled under the present workmen’s compensation act.
“In my judgment considering both the expert and lay testimony, plaintiff is experiencing considerable and substantial pain and such pain will continue indefinitely. There was some testimony to the effect that an operation may relieve plaintiff’s pain but there has been no showing that an operation is a necessary requisite to receive workmen’s compensation benefits. I find plaintiff, Carl B. Phillips, to be totally and permanently disabled.
“On the issue of penalties and attorney’s fees, Mr. Harrell, Division Manager, testified on behalf of defendant, Dresser. According to his testimony, defendant had no knowledge of the accident until the company received a copy of Dr. Clark’s report dated October 20, 1975. The report was received apparently on October 23rd. However, Murl Clark, the supervisor at the job site testified that he had knowledge of the accident approximately 1:00 P.M. on October 15, 1975, some one hour after the accident and at that time he filled out an accident report. He also testified that he notified the New Iberia office either that same day or the following day by telephone. Furthermore, Dr. Clark testified that prior to treating plaintiff on October 17, his office telephone^] Dresser Engineering and there was a notation on his file indicating that a person named “Murl” authorized treatment. Obviously the person named “Murl” was Murl Clark, the superintendent. Also during the taking of Dr. Akins’ deposition, the attorney for the compensation carrier acknowledged the carrier had received a copy of Dr. Akins’ report prior to the filing of suit. The Court concludes that the employer did have timely notice of the acci-denté] and its failure to pay workmen’s compensation benefits and to provide medical treatment was arbitrary and capricious. There was no evidence whatsoever which would establish a justification to withhold payment of compensation and medical expenses. The Court concludes plaintiff is entitled to twelve per cent (12%) as penalties.”

Plaintiff has answered this appeal and requested an increase in attorney fees. The judgment of the trial court awarding attorney fees shall be increased by $500.00 to $3,500.00. Basco v. State of Louisiana, Through Dept. of Corrections, 335 So.2d 457 (La.App. 1 Cir. 1976), writ denied La., 338 So.2d 701; Chavis v. Maryland Cas. Co. 307 So.2d 663 (La.App. 3 Cir. 1975), writ denied La., 310 So.2d 854; Thibodeaux v. Associated Distributing Co., 260 So.2d 46 (La.App. 3 Cir. 1972), writ denied 262 La. 131, 262 So.2d 395.

Costs are to be borne by defendants-appellants.

AFFIRMED IN PART, AMENDED IN PART.

WATSON, J., dissents in part and concurs in part and assigns written reasons.

WATSON, Judge,

dissenting in part and concurring in part:

The fundamental question presented by this appeal is whether under the current workmen’s compensation laws, an injured employee is totally and permanently disabled if he has returned to work but experiences pain in discharging his duties. A second, and also important, issue is whether plaintiff is entitled to penalties and attorney’s fees.

The statutory context of the pain issue is that the Workmen’s Compensation Act was amended by Act No. 583 of 1975 to change the definition of total and permanent disability as well as to provide more liberal monetary benefits for injured employees. LSA-R.S. 23:1221 was amended to change sub-section 2, which had previously read as follows:

“For injury producing permanent total disability to do work of any reasonable character, sixty-five per centum of wages during the period of disability, not beyond four hundred weeks.”

to read now as follows:

“For injury producing permanent total disability of an employee to engage in any gainful occupation for wages, whether or not the same or a similar occupation as that in which the employee was customarily engaged when injured and whether or not an occupation for which the employee, at the time of injury, was particularly fitted by reason of education, training, and experience, sixty-six and two-thirds per centum of wages during the period of such disability.”

Also, under the 1975 amendment, the measure and duration of compensation benefits were increased substantially.

It is generally recognized that an objective of the 1975 amendment was to tighten up the definition of total and permanent disability while making more generous the amount which could be obtained by the truly disabled employee. See Comment, 36 La.L.R. 1018.

The facts of the accident and the medical evidence are important in considering the precise basis on which the trial court made its finding of total and permanent disability-

On October 15, 1975, Phillips suffered a twisting type injury to his back while assisting either two or three other men in carrying a joint of heavy pipe. Plaintiff said the accident occurred when he turned to see whether one of the other men had released the pipe. After turning, he let the pipe slide off his shoulder onto his arm. He felt a sharp pain in his back.

Phillips did not fall down or cry out at the time. The other men carrying the pipe did not see or hear anything to signal the accident. (Testimony of Gerald Doueet at TR. 210) They learned about it after the lunch hour when Phillips told them he was going to the doctor. (TR. 208)

Phillips was off work from October 15, 1975 until April, 1976 when he obtained a job as a welder and moved to Alvin, Texas. He took and passed a medical examination when he went to work. At the time of the trial, he was working from 48 to 52 hours per week and making $4.75 an hour. His employment on the date of injury was as a welder’s helper and his wages were $3.40 an hour.

Plaintiff testified that in his current employment he is working in great and substantial pain. However, he did not indicate that he had missed any work as the result of pain and he did not call any fellow employees who could substantiate his complaints. His medication at the time of trial consisted of non-prescription drugs such as aspirin.

The trial judge found corroboration for plaintiff’s pain in the testimony of his wife, who did in fact testify that plaintiff was suffering pain after work. However, the trial judge erred in finding corroboration by Clayton Nunez (incorrectly identified as Clayton Henry), because Mr. Nunez, who is plaintiffs stepfather, testified only concerning the period between the accident and the time Phillips left to go to work in Texas. (TR. 226)

Thus, as far as lay testimony is concerned, the only indication that plaintiff is working in pain is that found in his own testimony and in that of his wife who observes him after he returns home from work.

The medical testimony is somewhat incomplete and also somewhat inconsistent. Dr. Charles Smith, who was the first physician to see plaintiff after the accident, did not testify at all. Dr. Cecil Clark, who is a general practitioner, found at the outset a myofascial strain but later found, on the basis of x-ray diagnosis by a Dr. Romero, minimal compression fractures of three dorsal (thoracic) vertebrae, D-3 — D-5. Dr. Clark found plaintiff unable to do heavy work but indicated that he could return to light duty on his last examination. The last examination and the last prescription of medication was on April 2, 1976, and Dr. Clark indicated that plaintiff had, in his opinion, a very poor prognosis.

The next physician, Dr. William Akins, an orthopedic specialist of Lake Charles, examined and treated Phillips on several occasions by referral from Dr. Clark. Apparently, Dr. Akins and Dr. Clark were treating plaintiff on a somewhat concurrent basis. Dr. Akins first saw plaintiff on November 19, 1975, and he diagnosed a possible mild compression fracture of L-l. He prescribed an orthopedic corset for plaintiff to wear. On the next visit, about two weeks later, plaintiff had improved but still had some back pain. Dr. Akins continued to see plaintiff in January, when he obtained x-rays of the thoracic region which he found to be normal. On April 2, 1976, Dr. Akins instructed plaintiff that he could return to light duty. This was the same date that Dr. Clark also sent plaintiff back to light duty. As of that time Dr. Akins said in his opinion that Phillips would fully recover but he told him to return if he suffered substantial pain. Dr. Akins indicated that in his opinion, plaintiff had suffered a minimal compression fracture of the L-l vertebrae and that this resulted in a three per cent disability of his body.

As of the time of trial, plaintiff had not returned to Dr. Akins.

The last physician that saw plaintiff was Dr. Ambrister, another orthopedic surgeon, who examined plaintiff on behalf of defendants. Dr. Ambrister suspected an injury to L-l but after viewing earlier films, he concluded that the defect existing in that vertebrae was of longstanding. He found no spasm and no objective sign of injury to plaintiff. He stated that in his opinion plaintiff would be free of pain in his employment.

On the basis of the lay testimony and summarized medical opinions, I would find that the trial judge erred as a matter of law in holding that plaintiff is totally disabled “. . .to engage in any gainful occupation for wages, . . .’’as required by LSA-R.S. 23:1221, as amended. Obviously, plaintiff is working now and at a better wage than at the time of the accident. In addition, he has a higher position (a welder instead of a welder’s helper) in the same trade or craft.

Pain cannot be ruled out as a totally disabling factor in every case, but the pain proved here, either by medical or lay witness, is not to my notion sufficient to support a finding of total and permanent disability. Some of the factors which impress me are: no showing that plaintiff has missed any work; no inability to hold a steady job; and no proof of limitation of duties. Also, a very impressive fact is that Phillips took and passed a pre-employment physical for his current job as a welder.

On the penalty issue, I agree that the insurer was arbitrary in failing to pay benefits from the date of injury until the return to light duty in April, 1976. Plaintiff is entitled to penalties for that period and to attorney’s fees.

Therefore, I respectfully dissent on the pain issue and concur on the penalty issue.

      1. However, Dr. Smith did not testify in the case. (Footnote by appellate court)

      2. This issue was not urged on appeal.

      3. On this issue, we would add our own comments to those of the trial court:
      Act No. 583 of the 1975 Regular Session of the Louisiana Legislature, amending LSA-R.S. 23:1221, as to permanent and total disability makes no reference whatsoever to a situation where an injured employee recovers to such an extent that he can do some work post-injury, but does so under great or substantial pain and physical distress.
      Prior to Act 583 of 1975, it was axiomatic, in Louisiana jurisprudence, that a worker who recovered sufficiently to return to gainful employment, but could only do so in great or substantial pain, was generally considered to be totally and permanently disabled. The rationale of this rule was that the workmen’s compensation act should be considered in the light of its philosophically humane overtones. Consequently, such a worker who returned to gainful employment presumably because of economic distress considerations should not be penalized therefor by denying him workmen’s compensation benefits for total and permanent disability. (The cases so holding are too numerous to mention herein.)
      We would make reference, however, to the expressions contained in the text of Louisiana Workmen’s Compensation, Law and Practice, by Professor Wex Malone, Sections 274 and 278. While this venerable treatise was published 24 years prior to Act 583, and the myriad of cases applying the great or substantial pain factor antedated Act 583, nonetheless we are of the opinion that the rationale and philosophy advocated and relied upon prior to Act 583, retained their validity after Act 583. The Legislature, in adopting the said Act, could very well, if it intended to affect the jurisprudence on this issue, have included language therein to legislatively alter or overrule the said jurisprudence. We construe its failure to do so as an intent to leave such jurisprudence undisturbed.

      4. As of September 15,' 1977, the date of oral argument in this Court, defendants-appellants have yet to pay plaintiff any weekly compensation benefits, or medical expenses. (Footnote by appellate court.)


source: Caselaw Access Project

author: WATSON, Judge.

license: Public Domain

text:
    Ronald CARTER et al., Plaintiffs-Appellants, v. R. L. SALTER et al., Defendants-Appellees.
    No. 6161.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 17, 1977.
    Rehearing Denied Nov. 10, 1977.
    Writ Refused Dec. 14, 1977.

      Davis & Simmons by Kenneth N. Simmons, Many, for plaintiffs-appellants.
    Brittain & Williams by Jack 0. Brittain, Natchitoches, for defendants-appellees.
    Before DOMENGEAUX, WATSON and FORET, JJ.
   WATSON, Judge.

Plaintiffs, Ronald and Frances Carter, have appealed from a trial court judgment dismissing their suit asking damages for the death of their two year old son, Randson Brent Carter (“Brent”). Named as defendants are R. Larry and Mary Salter and their homeowner’s insurer, Louisiana Farm Bureau Mutual Insurance Company. A Honda CB360T motorcycle fell on the child and critically injured him at the Salter home on November 4, 1975.

The Salters and their insurer asserted third party claims against the Carters, claiming reimbursement or contribution. Defendants have answered the appeal.

Prior to trial on the merits, a declaratory judgment was rendered decreeing coverage under the Louisiana Farm Bureau Mutual Insurance Company policy.

The motorcycle was resting on its left side kickstand adjacent to the front wall of the carport of the Salter home. Its dry weight was 357 pounds. The gas and oil weighed another twenty pounds. It was equipped with both a center and a side kickstand. The center stand picks the back wheel up off the ground; the side kickstand holds the motorcycle at an angle. Ira Joe Key, owner and operator of the Honda Shop in Many, testified that the center stand would be the most secure but that either one was safe.

The motorcycle belonged to Gary Bryan Gates, a 14 year old son of Mrs. Salter by a previous marriage, who was living with his mother and stepfather, in the legal custody of his mother. The motorcycle had been lodged in the carport for two or three weeks because of Bryan’s bad grades. It had never fallen during the year and a half he had owned it but fell twice on the day of the fatality. Bryan said he always used the side kickstand because use of the center stand necessitated picking up the rear of the motorcycle, which he was unable to do. Bryan said there was no place to store the motorcycle except the carport.

The Salters and Carters are neighbors living within view of each other, less than a mile apart. On the day of the accident, Frances Carter, three year old Ronald Ray Carter, Jr. and two year old Brent, were visiting by invitation with Mrs. Salter and a two or three year old daughter, Kendra Ray Salter. Frances Carter did not often go to the Salter house because she did not drive and the two husbands did not get along well. Mr. Carter testified that he did not know his wife and children were going to the Salter residence that day; he preferred his wife to stay at home. Also present were John Riley Gandy (cousin of Larry Salter and uncle of Ronald Carter) and his wife, who were on vacation. Mr. Salter and Mr. Carter were at work. Other children in the families were at school. The three women were in the kitchen, frying chicken and making other preparations for lunch. The three small children were playing outside. The motorcycle first fell ten to thirty minutes before Brent’s accident in the presence of the other two children, who were uninjured. Brent was elsewhere. The cycle’s kickstand was on the left. It fell over on the right side, away from the carport wall. John Gandy picked up the motorcycle and put it back in the same place. Mrs. Salter warned the children of the danger and told them the motorcycle could kill them. Mrs. Carter was in the bathroom but came out during the scolding, as did Brent. Mrs. Carter had not previously noticed the motorcycle. Mrs. Carter quoted Mrs. Salter as saying after this first fall that she had told her husband to put the motorcycle up before he went to work offshore: “But as usual, he never has time to do anything around here.” (TR. 188) Mrs. Salter did not remember such a discussion with her husband but admitted it might have taken place. Mr. Salter did not testify. According to Mrs. Carter, “Uncle” John Gandy, who was outside on the patio, was supposed to be supervising the children.

When the motorcycle fell on Brent a short time later, no one else was present. The sound made by the two falls was the same. Gandy lifted the cycle off Brent, who was crying. Brent subsequently became short of breath and turned pale. The three women drove him to the hospital, leaving John Gandy to watch the other children. Brent was whining and/or crying. He died either just before or just after arrival at the hospital, an hour or more after the injury. Brent was 2 years and 15 days old. Mr. and Mrs. Carter testified about the trauma and loss they sustained; Mrs. Carter said she had suffered a miscarriage subsequent to the accident. Although she had had a daughter prior to her marriage to Carter, they have only one surviving son of the marriage.

The funeral bill was $200, and the medical expenses for Brent were $120.

The trial court concluded that there was no negligence on the part of Mrs. Salter. Pampas v. Cambridge Mutual Fire Insurance Co., 169 So.2d 200 (La.App. 4 Cir. 1964) writ refused 247 La. 344, 170 So.2d 865, was cited as authority for Mrs. Carter’s paramount duty to watch and protect her minor son. In effect, the mother was found negligent in her supervision of Brent.

Appellants contend that defendants are strictly liable even in the absence of negligence. The Salters had custody of the motorcycle, as that term is used in LSA-C.C. art. 2317 and the motorcycle created an unreasonable risk of injury under the rationale of Loescher v. Parr, 324 So.2d 441 (La., 1976), constituting an attractive nuisance to Brent. This postulation is not tenable. The evidence does not show a defect in this motorcycle which differentiated it from any other. Such a machine at rest does not create an unreasonable risk of harm to others under ordinary circumstances. Compare Stewart v. Zurich Ins. Co., 342 So.2d 1273 (La.App. 4 Cir. 1977).

In the alternative, it is urged that the Salters were negligent, and we will address this issue.

Brent’s injury and death resulted from the concurrence of two causes in fact. One cause was the failure of the Salters to secure the motorcycle and the second was the failure of the adults present to supervise the children. Brent’s death occurred both because the motorcycle was unstable and because the children were not closely watched. Brent’s age makes him incapable of legal fault.

The inquiry then is whether the Salters were under a legal duty to protect Brent from this particular risk or whether, as the trial court apparently found, the sole legal duty was owed by Brent’s mother.

The duty owed by Mr. and Mrs. Salter was to make the premises of their home reasonably safe for those present. A machine which weighs over 300 pounds should not topple from the exertions of a two year old child. However, mere possession of the motorcycle might not create a corresponding duty to see that it did not fall, since the Salters may not have been aware of the danger prior to the first fall. After the first accident, Mrs. Salter was aware of the risk, and a duty arose to prevent what actually occurred, the crushing injury to Brent from a subsequent accident. It was then foreseeable that Brent’s accident would occur. The danger was one that the child could not understand or appreciate. The motorcycle at that time presented a recognizable and unreasonable risk of harm. Mrs. Salter was on notice of the danger and was responsible for taking precautions against it. Her failure to do so was substandard and negligent. LSA-C.C. art. 2316. Mrs. Carter was similarly negligent. The danger was as obvious to her as it was to Mrs. Salter. Shelton v. Aetna Casualty & Surety Company, 334 So.2d 406 (La., 1976).

The next issue is whether Frances Carter can recover for her son’s wrongful death despite her negligence. One should not profit from wrongful conduct. Compare Dumas v. United States Fidelity & Guaranty Company, 241 La. 1096,134 So.2d 45 (1961) and Dickerson v. Illinois Cent. Gulf R. Co., 553 F.2d 423 (5 Cir. 1977). See the discussion in 37 La.L.R. 1. Mrs. Carter’s negligence bars her action for her son’s wrongful death.

Can Mrs. Carter’s negligence be imputed to her husband and bar his claim for his son’s wrongful death?

Were the question one of imputing the negligence of the husband to the wife, the jurisprudence is clear. The husband’s negligence cannot be imputed to his wife. Gaspard v. LeMaire, 245 La. 239, 158 So.2d 149 (1963); Vitale v. Checker Cab Co., 166 La. 527, 117 So. 579 (1928); Kientz v. Charles Dennery, 209 La. 144, 24 So.2d 292 (1945); Granier v. Aetna Insurance Company, 209 So.2d 132 (La.App. 4 Cir. 1968). See also the original Supreme Court opinion in Billiot v. Bourg, 338 So.2d 1148 (La., 1976).

The doctrine of imputed contributory negligence came to Louisiana via the common law. See Clair v. Gaudet, 144 So.2d 638 (La.App. 4 Cir. 1962), which imputed the wife’s negligence to the husband on an agency theory to bar recovery for the death of a child, citing Corpus Juris Secundum. The doctrine has been criticized in Louisiana. See, for example, the original opinion by Justice Bolin in Callais v. Allstate Insurance Co., 334 So.2d 692 (La., 1976).

The general rule is that negligence can be imputed to an innocent party only when that party is legally responsible for the torts of the negligent party. Gaspard v. LeMaire, supra; Sutton v. Rogers, 222 So.2d 504 (La.App. 2 Cir. 1969).

There is no legislation in Louisiana which renders a wife or husband liable for the delicts of the spouse. The jurisprudence imputes the negligence of a wife to her husband only when she is driving a car on a community mission. Vail v. Spampinato, 238 La. 259, 115 So.2d 343 (1959); Vidrine v. General Fire and Casualty Company, 168 So.2d 449 (La.App. 3 Cir. 1964); Adams v. Golson, 187 La. 363, 174 So. 876 (1937).

The fact that the wife’s damages are her separate property was relied on in Vitale, to support the conclusion that the husband’s negligence is not imputed to the wife. Since the damages recoverable by the husband in Louisiana are community property, there is thus a theoretical basis (other than the questionable agency theory of Clair) for imputing the negligence of the wife to the husband and preventing the wife from indirectly profiting by the enrichment of the community.

Dean Prosser has written:

“. . . imputed contributory negligence on the basis of the marriage alone has vanished from the law of most jurisdictions. The only exception is found in the case of one or two jurisdictions, which under the influence of the civil law, treat the damages recoverable by either spouse as community property, and therefore continue to impute the negligence of one to the other in order to prevent the negligent party from profiting as community owner by his own wrong.
$ sfc * ‡ * %
“There are one or two states in which the negligence of one spouse is still imputed to the other to bar an action for wrongful death of a child. See for example Martinez v. Rodriquez, Fla.1969, 215 So.2d 305.” William L. Prosser, Law of Torts, 4th Ed., pg. 490.

in Martinez, the wife’s negligence in supervising a two year old child barred recovery by the father. However, Florida has since adopted a comparative negligence doctrine. See Hoffman v. Jones, 280 So.2d 431 (Fla., 1973). Compare Reynolds v. Thompson, 215 S.W.2d 452 (Mo., 1948); Tufty v. Sioux Transit Co., 70 S.D. 352, 17 N.W.2d 700 (1945); and Pearson v. National Manufacture & Stores Corp., 219 N.C. 717, 14 S.E.2d 811 (1941).

58 Am.Jur.2d Negligence § 468, at page 35, states:

“An exception to the rule that the negligence of one spouse will not be imputed to the other is made in certain cases in which any recovery would become the joint property of both spouses, and thereby profit or enrich the spouse whose fault contributed to the harm.”

The distinction drawn in Vitale, supra, between imputing the husband’s negligence to the wife and the wife’s to the husband, although tenuous and without practical justification, has remained the law in Louisiana. See 37 La.L.R. at 42 and 43. See also Monge v. New Orleans Ry. & Light Co., 145 La. 435, 82 So. 397 (1919), where the wife’s negligence was imputed to the husband to bar recovery of medical expenses.

We conclude that Mrs. Carter’s negligence must be imputed to her husband and that her negligence bars his action for Brent’s wrongful death.

Likewise, under the jurisprudence of this circuit, both Mrs. Carter and Mr. Carter are barred from recovering in their survival actions for Brent’s pain and suffering by Mrs. Carter’s negligence and its imputation to her husband. Moore v. Kinney, 315 So.2d 340 (La.App. 3 Cir. 1975).

The next question is whether Ronald Carter can recover for his son’s medical and funeral expenses. This item of damages is not an enrichment of the community but a reimbursement of a monetary loss. McHenry v. American Employers’ Ins. Co., 206 La. 70, 18 So.2d 656 (1944), held that a wife’s negligence is not imputed to the husband to preclude recovery of damages for his personal injuries, loss of wages, and medical expenses, which would reimburse rather than enrich the community. McHen-ry applies. Mr. Carter is entitled to the medical and funeral expenses of $320. Monge, supra, is an older case than McHen-ry, supra, and the latter controls. The logic of McHenry cannot be gainsayed as to items of damages which represent an actual monetary loss, although its rationale does not extend to cover the wrongful death of a child.

The last issue is that of contribution because of Mrs. Carter’s negligence. Defendants are entitled to recover one-half of the award of medical and funeral expenses from the co-tortfeasor, Frances Carter. Walker v. Milton, 263 La. 555, 268 So.2d 654 (1972).

For the foregoing reasons, the judgment of the trial court herein dismissing the claims of Frances Carter and Ronald Carter for Brent’s wrongful death, as well as their survival actions, is affirmed.

The judgment of the trial court dismissing Ronald Carter’s claim for medical and funeral expenses is reversed. It is ordered, adjudged and decreed that there be judgment herein in favor of plaintiff, Ronald Carter, and against defendants, Mary Salter and Louisiana Farm Bureau Mutual Insurance Company, in the sum of $320, together with legal interest from date of judicial demand until paid.

It is further ordered, adjudged and decreed that defendants, Mary Salter and Louisiana Farm Bureau Mutual Insurance Company, have judgment over against Frances Carter for contribution of one-half of the amount awarded.

Under the circumstances, all costs at trial and on appeal are assessed to defendants-appellees, Mary Salter and Louisiana Farm Bureau Mutual Insurance Company.

AFFIRMED IN PART; REVERSED IN PART AND RENDERED.

      . LSA-C.C. art. 2317:
      “Art. 2317. We are responsible, not only for the damage occasioned by our own act, but for that which is caused by the act of persons for whom we are answerable, or of the things which we have in our custody. This, however, is to be understood with the following modifications.”

      . LSA-C.C. art. 2316:
      “Every person is responsible for the damage he occasions not merely by his act, but by his negligence, his imprudence, or his want of skill.”

      . The author of this opinion would be inclined to decide the survival actions otherwise on the basis of Austrum v. City of Baton Rouge, 282 So.2d 434 (La., 1973), but recognizes that Aust-rum does not squarely confront and discuss the issue, except in result. See Prof. Alston Johnson’s analysis at 37 La.L.R. 46.


text:
    Louis BABINEAUX v. Michael J. LeBLANC and Commercial Union Insurance Company.
    No. 6162.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 17, 1977.
    Rehearing Denied Nov. 10, 1977.
    Writ Refused Dec. 9, 1977.

      Lucius A. Hornsby, Jr., Lafayette, for plaintiff-appellant.
    Davidson, Meaux, Sonnier & Roy by Y. Parley Sonnier, Lafayette, for defendant-appellee.
    Before DOMENGEAUX, WATSON and FORET, JJ.
   WATSON, Judge.

This is an appeal of an automobile accident case which was tried to a jury, resulting in a verdict for defendants.

Plaintiff is Louis Babineaux, the driver of a Ford automobile which crashed into a Chevrolet pickup truck being operated by defendant, Michael J. LeBlanc, and insured by defendant, Commercial Union Insurance Company. At the time of the accident, approximately 2:00 A. M. in the morning of August 31, 1974, the pickup truck was topped at an angle somewhat blocking Ba-bineaux’s proper lane of travel and the operator, LeBlanc, was outside the pickup attempting to attach a chain to another vehicle which was in the ditch.

There are only two issues presented on appeal and these are: (1) whether there was a reasonable evidentiary basis for the jury’s decision in favor of defendants; and (2) whether the trial court erred in allowing the filing of an amended answer.

As to the first issue, there are numerous witnesses and voluminous evidence on both sides, mostly relating to the presence or absence of lights on the many vehicles at the scene of the accident, a rural two-lane, asphalt road, and the degree of possible intoxication of the plaintiff. The jury saw and heard all of the witnesses, resolving the factual issues against plaintiff. There is no doubt that there is a reasonable evidentiary basis for the jury’s decision and that it is free from manifest error. Canter v. Koehring, 283 So.2d 716 (La., 1973).

The second issue is somewhat more complicated. The defendants originally filed a general denial to plaintiff’s petition. On April 5, 1976, some fifteen days before trial, counsel for the defendants mailed an amended answer asserting plaintiff’s contributory negligence to the clerk of court for filing and forwarded a copy to plaintiff’s attorney. The latter acknowledged receiving the copy, but the original answer was not filed in the record. This fact was unknown to both attorneys until the last day of trial when the judge informed them that he was not going to give a charge on contributory negligence. Counsel for defendants moved to file an amended answer at that time and the trial judge allowed him to do so. The plaintiff’s attorney, who acknowledges receiving a copy of the amended answer several days prior to trial, cannot be said to have been taken by surprise or to have been without notice of the contributory negligence defense.

There was no abuse of discretion by the trial judge in allowing the amended answer to be filed. Norman v. City of Shreveport, 141 So.2d 903 (La.App. 2 Cir. 1962).

For the foregoing reasons, the judgment of the trial court is affirmed. Costs on appeal are taxed against plaintiff-appellant.

AFFIRMED.


author: HOOD, Judge.

text:
    Walter Joseph CADE, Plaintiff-Appellee, v. Vivian Lee Minor CADE, Defendant-Appellant.
    No. 6138.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 25, 1977.
    McHale & Bufkin by Louis D. Bufkin, Lake Charles, for defendant-appellant.
    Hunt, Godwin, Painter & Roddy by Fred R. Godwin, Lake Charles, for plaintiff-ap-pellee.
    Before HOOD, CULPEPPER and GUI-DRY, JJ.
   HOOD, Judge.

Walter Joseph Cade seeks to obtain a divorce from defendant, Mrs. Vivian Lee Minor Cade, on grounds of adultery. Judgment was rendered by the trial court in favor of plaintiff. Mrs. Cade appealed.

The issues presented are (1) whether the evidence supports a finding that adultery was committed, and (2) whether a reconciliation has taken place between the parties.

Mrs. Cade entered a motel room with a male companion, not her husband, at about midnight on July 13, 1976, and she remained in that room with him until about 5:00 A.M. on July 14. No one else was in the room with them during that time. Her companion contacted her by telephone during the afternoon of July 13, and pursuant to his invitation she met him at his motel room at about 7 or 7:30 that evening, and they went to the motel lounge where they remained until it closed about midnight. They then left the lounge and went to his room. Defendant denies that an act of adultery was committed. She explained that she and her friend had had “so much to drink” by the time the lounge closed that he decided that he would not try to sleep before he had to attend a meeting at 5:00 A.M. on July 14, and that she went to his room with him where they sat and talked until he had to leave for his appointment.

At about 9:15 P.M. on July 14, Mrs. Cade entered a different room at the same motel with another man, not her husband, and she remained in the room with him for a period of from 30 to 45 minutes. No one else was in the room with them. She denies that adultery was committed, stating that after having had several drinks with her companion she went to a motel room with him, where she took some aspirins for a toothache and used the telephone to call her children.

Defendant left the above motel room about ten o’clock that evening. Two or three hours later, however, at about 12:55 A.M. on July 15, she re-entered the same room with a third male companion, not her husband, and she remained in that room with him until about 1:40 A.M. She testified that she had had several drinks with the last mentioned person in the motel lounge, and that after leaving the lounge she went to his room with him to finish two drinks which she had acquired at the lounge and which she took with her when she left.

The trial judge, in concluding that acts of adultery were committed on those occasions, said: “I’m about as convinced as I ever expect to be in a circumstantial evidence case that adultery was committed . . Mrs. Cade’s explanation of her activities in the motel room is simply not digestible. The court is convinced that the allegations of adultery in the motel are true.”

The commission of acts of adultery, alleged as a ground for divorce, may be established by indirect or circumstantial evidence. When proof of adultery is based solely on circumstantial evidence, however, the proof must be so convincing that it will exclude any other reasonable hypothesis but that the alleged act was committed. Bertrand v. Bertrand, 260 So.2d 128 (La.App. 3 Cir. 1972); Hayes v. Hayes, 225 La. 374, 73 So.2d 179 (1954); Hermes v. Hermes, 287 So.2d 789 (La.1978).

The factual findings of the trial judge, particularly where those findings are based on an evaluation of the credibility of witnesses, are entitled to great weight and will not be disturbed unless found to be clearly erroneous.

The evidence in the instant suit supports the factual conclusions reached by the district court. We find, as did the trial judge, therefore, that acts of adultery were committed by Mrs. Cade on the above occasions.

Mrs. Cade contends, alternatively, that a reconciliation was effected between the parties on August 19 and on October 13, 1976, and that in view of that reconciliation the trial judge erred in decreeing a divorce between them.

The evidence shows that Mrs. Cade visited her husband in his apartment during the early morning hours on August 19, and again about 3:00 A.M. on October 13, 1976. She testified that on both of those occasions they engaged in sexual intercourse, and that on August 19 he specifically told her that he forgave her for all that had happened up to that time. Mr. Cade testified that he and defendant did not cohabit with each other on either of those occasions, that he has never forgiven her, or told her that he has forgiven her, for her acts of infidelity, and that no reconciliation has ever taken place between the parties.

The trial judge concluded that sexual intercourse did not take place between the parties on either of those occasions. With reference to Mrs. Cade’s visits to plaintiff’s apartment, the trial judge said:

“Turning now to the defense of reconciliation, Mrs. Cade alleged that on August 19, and again on October 13, 1976, she went to her husband’s apartment in the early morning hours and there had sexual intercourse with him, these events constituting a reconciliation. Mr. Cade vigorously denied intercourse, although he admitted that his wife did come to the apartment. Both times Mrs. Cade telephoned in advance. Significantly, Cade taped the telephone conversations preceding both those visitations (The tapes and transcriptions of them were submitted in evidence without objection). They support his version of what happened. The wife seems to place most importance upon the October 13 visit because on this occasion she arranged to have a girlfriend drive her there and remain to witness her entry into the apartment. This was obviously a staged reconciliation for trial purposes. What she told her husband on the telephone before going there amounted to a promise to him that her purpose in going there that night was to simplify and expedite the legal proceedings. What she told the friend who took her there and stayed to witness was that it was to her advantage in the lawsuit to prove a reconciliation. We can never know for certain whether or not sexual intercourse took place in that apartment that night. I am satisfied that it did not, based upon the totality of the evidence and the credibility of both parties as I evaluated them during the trial.”

The evidence convinces us, as it did the trial judge, that the parties did not engage in sexual intercourse on either of those occasions, that plaintiff did not forgive his wife for her acts of infidelity, and that no reconciliation took place.

Defendant argues that if we conclude that she committed acts of adultery in July, 1976, based on circumstantial evidence showing that she remained in motel rooms with other men for periods of time, then we also should conclude that sexual union occurred between her and plaintiff on August 19 and October 13, 1976, since she spent some time with plaintiff in his apartment on each of those dates.

We recognize the forcefulness of that argument. Our answer to it, however, is that the circumstances surrounding each of those incidents compel the conclusion that coition occurred during Mrs. Cade’s visits to motel rooms in July, whereas the facts indicate that plaintiff and defendant did not engage in sexual intercourse on the later dates.

The two visits which defendant made to her husband’s apartment were preceded by long telephone conversations between the parties, which conversations were recorded on tape. Those tapes, and transcriptions of them, show that Mr. Cade was extremely reluctant to allow defendant to visit him at either of those times, that he called the police and had her arrested on the night of the first visit, and that he required repeated assurances from her prior to the second visit that she would leave promptly after discussing the settlement of their legal difficulties. The parties gave conflicting versions of what transpired on those visits. The trial judge heard their testimony and observed their demeanor in the court room, however, and thereafter he accepted Mr. Cade’s testimony as to the facts. We attach great weight to his factual findings.

Our conclusion is that there is no error in the judgment of the trial court which decreed an absolute divorce between the parties.

Since we have concluded that the parties did not engage in sexual relations on either of the visits which Mrs. Cade made to her husband’s apartment, it is unnecessary for us to consider the question of whether a single act of copulation, in itself, would be sufficient to effect a reconciliation between the parties.

For the reasons herein set out, the judgment appealed from is affirmed. The costs of this appeal are assessed to defendant-appellant.

AFFIRMED.


text:
    STATE FARM FIRE AND CASUALTY COMPANY, v. John R. ADAMS.
    No. 49989.
    Supreme Court of Mississippi.
    Aug. 31, 1977.
    Rehearing Denied Nov. 16, 1977.
    Aultman, Pope, Aultman & Tyner, Dor-rance Aultman, Hattiesburg, for appellant.
    Ingram & Matthews, Carroll H. Ingram, Hattiesburg, for appellee.
    Before PATTERSON, C. J., and WALKER and LEE, JJ.
   Appeal from Circuit Court, Covington County; George B. Grubbs, Judge.

REVERSED AND REMANDED FOR A NEW TRIAL ON THE QUESTION OF NOTICE ONLY.

INZER and SMITH, P. JJ., and ROBERTSON, SUGG, BROOM and BOWLING, JJ., concur.


text:
    Clarence Frederick SLAWSON v. Patricia Ann SLAWSON.
    No. 49984.
    Supreme Court of Mississippi.
    Sept. 28, 1977.
    Rehearing Denied Nov. 16, 1977.
    Barnett, Montgomery, McClintock & Cunningham, Ross Barnett, Jr., G. William Palmer, Richard C. Williams, Jr., Jackson, for appellant.
    M. Charles May, Jackson, for appellee.
    Before PATTERSON, C. J., and SUGG and WALKER, JJ.
   Appeal from Chancery Court, Hinds County; James Arden Barnett, Chancellor.

AFFIRMED ON CROSS APPEAL, REVERSED ON DIRECT APPEAL AND RENDERED.

INZER and SMITH, P. JJ., and ROBERTSON, BROOM, LEE and BOWLING, JJ., concur.


text:
    Laurel G. WEIR v. W. Arlo TEMPLE, Central Electric Power Association and Shelby Mutual Insurance Company.
    No. 50258.
    Supreme Court of Mississippi.
    Oct. 26, 1977.
    Laurel G. Weir, Philadelphia, for appellant.
    Alford, Mars & Thomas, Herman Alford, Philadelphia, Williams & Glover, David Williams, Meridian, for appellee.
    Before SMITH, P. J., and BROOM and LEE, JJ.
   Appeal from Circuit Court, Neshoba County; O. H. Barnett, Judge.

AFFIRMED.


text:
    U. V. ROWE and Flentrus Murdock v. STATE of Mississippi.
    No. 49938.
    Supreme Court of Mississippi.
    Oct. 26, 1977.
    Richard E. Burdine, Columbus, for appellant.
    A. F. Summer, Atty. Gen. by Karen Gil-foy, Asst. Atty. Gen., Jackson, for appellee.
    Before INZER, P. J., and ROBERTSON and BOWLING, JJ.
   Appeal from Circuit Court, Chickasaw County; W. W. Brown, Judge.

AFFIRMED.


text:
    Ronald KING v. STATE of Mississippi.
    No. 49943.
    Supreme Court of Mississippi.
    Oct. 26, 1977.
    Alton Massey, Kosciusko, for appellant.
    A. F. Summer, Atty. Gen. by Wayne Snuggs, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before INZER, P. J., and ROBERTSON and BOWLING, JJ.
   Appeal from Circuit Court, Attala County; Clarence E. Morgan, Jr., Judge.

AFFIRMED.


text:
    Carl W. MERRITT, Sr. v. STATE of Mississippi.
    No. 49850.
    Supreme Court of Mississippi.
    Oct. 26, 1977.
    Thomas L. Zebert, Pearl, for appellant.
    A. F. Summer, Atty. Gen. by Wayne Snuggs, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before SUGG, BROOM and LEE, JJ., and NEAL B. BIGGERS, Commissioner.
   Appeal from Circuit Court, Rankin County; Rufus H. Broome, Judge.

AFFIRMED.

PATTERSON, C. J., INZER and SMITH, P. JJ., ROBERTSON, WALKER and BOWLING, JJ., concur.


text:
    Pasco EDWARDS v. STATE of Mississippi.
    No. 49921.
    Supreme Court of Mississippi.
    Oct. 26, 1977.
    John E. Shaw, Kosciusko, for appellant.
    A. F. Summer, Atty. Gen. by Scherry J. LeSieur, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Attala County; Clarence E. Morgan, Jr., Judge.

Before SMITH, P. J., BROOM and LEE, JJ., and FLOYD LOGAN, Commissioner.

AFFIRMED.

PATTERSON, C. J., INZER, P. J., and ROBERTSON, SUGG, WALKER and BOWLING, JJ., concur.


text:
    Lonnie E. WILLIAMS and John D. Carroll v. CARROLL FOODS, INC. (formerly Carroll’s Sirloin Pit, Inc.), Freddie O. Carroll, Individually, and Bonanza International, Inc.
    No. 49614.
    Supreme Court of Mississippi.
    Oct. 26, 1977.
    Arthur D. Currie, Jackson, for appellant.
    Singley, Minniece, Neville & Hamill, James T. Singley, Deen, Cameron, Prichard & Young, J. L. Prichard, Meridian, for ap-pellee.
    Before INZER, P. J., ROBERTSON and BOWLING, JJ., and EDWARD C. PRI-SOCK, Commissioner.
   Appeal from Chancery Court, Lauderdale County; William Neville, Chancellor.

REVERSED AND REMANDED.

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


author: BROOM, Justice,

text:
    Thomas E. RUTLAND v. SWIFT CHEMICAL COMPANY.
    No. 49996.
    Supreme Court of Mississippi.
    Oct. 26, 1977.
    Jack A. Morris, Monticello, Joseph M. Stinson, Tylertown, for appellant.
    Thomas, Price, Alston, Jones & Davis, Alex A. Alston, Jr., Jackson, Lawrence J. Casazza, Chicago, Ill., for appellee.

      Before SMITH, BROOM and LEE, JJ.
   BROOM, Justice,

for the Court:

Breach of implied warrknty of merchantability or fitness is the theory of Rutland’s (appellant’s) suit against Swift Chemical Company (appellee) for damages related to poor performance of fertilizer manufactured by Swift and sold to Rutland by a retail establishment in Jayess, Mississippi. Rutland purchased the fertilizer on May 1, 1969, and filed suit in June 1975 in the Walthall County Circuit Court, which court transferred the cause to the Lawrence County Circuit Court upon a motion for change of venue. The Lawrence County Circuit Court ruled that the suit was barred by the six year statute of limitations under Mississippi Code Annotated § 75-2-725 (1972).

The sole issue is: Does the six year limitation period of § 75-2-725 bar the suit? Pertinent is the following portion of the statute:

§ 75-2-725. Statute of limitations in contracts for sale.
(1) An action for breach of any contract for sale must be commenced within six (6) years after the cause of action has accrued.
(2) A cause of action accrued when the breach occurs, regardless of the aggrieved party’s lack of knowledge of the breach. A breach of warranty occurs when tender of delivery is made, except that where a warranty explicitly extends to future performance of the goods and discovery of the breach must await the time of such performance the cause of action accrues when the breach is or should have been discovered. (Emphasis added).

Plain language of the statute provides that a cause of action for breach of warranty accrues when tender of delivery of goods is made, which in this ease occurred in May 1969. Only one exception is made to the six year limitation, and that is where under sub-section (2) of the quoted statute a warranty “explicitly extends to future performance.” Stipulated facts before us show that the fertilizer was purchased by Rutland and delivered to him during May 1969 and that his suit was filed more than six years later.

Rutland’s argument is that this case properly comes under the exception outlined in sub-section (2) of the statute providing that a cause of action accrues “when the breach is or should have been discovered.” There is no allegation that any express warranty was given Rutland when he purchased the fertilizer. He argues that because of the nature of fertilizer products, any implied warranty of merchantability must relate to future performance of the product. Further argument is that no cause of action can accrue until discovery by the farmer that the fertilizer has failed to perform properly. There is no dispute that discovery of the failure of the fertilizer to perform was not made until July 1969. On that basis argument is made that the statute of limitations did not begin to run until such discovery in July 1969. Our opinion is that the lower court correctly construed the statute in holding that the six year statute began to run from the date of tender of delivery. The statute in unmistakable language states that in order for a warranty of this type to extend beyond six years after the date of tender of delivery, such warranty must explicitly relate to future performance of the goods. Explicit means something expressed or clearly stated and is more than merely implied. Webster’s Third New International Dictionary (1971), p. 801. Absent any warranty explicitly promising or guaranteeing future performance of the fertilizer, we cannot circumvent the clear intent of the statute.

In his brief Rutland contends that the very nature of fertilizer applied for the purpose of causing plants to grow and mature requires that its warranty be “prospective in operation so as to cover future events and the breach” is ascertainable only after the vegetation has had time to show whether the fertilizer accomplished its purpose. While this argument may contain aspects of persuasion, the legislature was aware that Mississippi’s economy was still agrarian to a considerable extent when it provided that an action such as Rutland’s is barred within six years except where the warranty “explicitly” extends to future performance of the goods. We hold that the lower court correctly construed and applied the statute. Courts of other jurisdictions have reached the same result upon similar facts. Beckmire v. Ristokrat Clay Products Co., 36 Ill.App.3d 411, 343 N.E.2d 530 (1976); General Motors Corp. v. Tate, 257 Ark. 347, 516 S.W.2d 602 (1974); J. White and R. Summers Handbook of the Law Under The Uniform Commercial Code § 11-8 (1972).

AFFIRMED.

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


author: SMITH, Presiding Justice,

text:
    MISSISSIPPI STATE TAX COMMISSION v. Mary Jane REYNOLDS
    No. 49919.
    Supreme Court of Mississippi.
    Oct. 26, 1977.
    Rehearing Denied Nov. 16, 1977.
    William N. Lovelady, Jr., Jackson, for appellant.
    James H. Fields, Meridian, for appellee.
    Before SMITH, BROOM and LEE, JJ.
   SMITH, Presiding Justice,

for the Court:

On March 25, 1976 the disabilities of minority of Mary Jane Reynolds, a young woman born February 2, 1957, were removed generally by the Chancery Court of Lauderdale County under the provisions of Mississippi Code Annotated section 93-19-9 (1972). The decree, in addition to removing her disabilities generally and providing that in all respects she was empowered to do all acts in reference to her property and to make contracts, to sue and be sued, specifically provided, in the language of the statute, that Reynolds was empowered to engage “in any profession or avocation, which he (she) could do if he (she) were twenty-one years of age.”

On the date the decree was entered, Reynolds applied to the Holiday Inn at Meridian for a job as a cocktail waitress. As this would involve the handling of alcoholic beverages, it was necessary to file her personal record and fingerprints with the Alcoholic Beverage Control Division of the Mississippi State Tax Commission. The ABC refused, on account of her age, to approve her employment as a cocktail waitress. A copy of the decree removing her disabilities and allowing her to engage in any profession or avocation which she could engage in if she were, in fact, twenty-one years of age, was submitted to the ABC. Nevertheless, the ABC notified the Holiday Inn that Reynolds was not eligible for the employment she sought and she was, in consequence, denied employment. Reynolds requested a hearing before the Mississippi Tax Commission and this was granted and held on June 29,1976. At the conclusion of the hearing Reynolds’ application was denied by the Commission because she was not twenty-one years of age in fact, the Commission citing ABC Regulation 17 as the basis for its refusal. Regulation 17 provides:

No holder of a package retailer’s permit shall have in his employ in the sale of alcoholic beverages or in the handling thereof (except to unload in sealed cartons, boxes, or similar shipping packages, which packages shall remain sealed at all times they are being handled) any person under the age of twenty-one (21) years, and no on-premises permittee shall allow any person under the age of twenty-one (21) years in his employ to handle alcoholic beverages in any manner whatsoever, but this regulation shall not prevent an on-premises permittee from employing persons under the age of twenty-one (21) years for the purpose of handling and selling food only, or working as an entertainer in such place of business.

The above regulation was adopted by the ABC under legislative authority granted under Mississippi Code Annotated section 67-l-37(h) (Supp.1972), which provides that the ABC is authorized:

(h) To adopt and promulgate, repeal and amend, such rules, regulations, standards, requirements and orders, not inconsistent with this chapter or any law of this state or of the United States, as it deems necessary to control the manufacture, importation, transportation, distribution and sale of alcoholic liquor, whether intended for beverage or nonbeverage use in a manner not inconsistent with the provisions of this chapter or any other statute, including the native wine laws.

From the above action of the Mississippi Tax Commission Reynolds appealed to the Chancery Court. The chancellor reversed the Commission and ordered the ABC to approve Reynolds’ application for employment in the specified job, notwithstanding Regulation 17.

The chancellor held that Mississippi Code Annotated section 93-19-9 (1972) disclosed a clear and unambiguous intention on the part of the legislature to allow the chancery court, after hearing evidence justifying the action, to remove the disabilities of minority of a minor generally, and in such a case specifically empowered the court to decree that the minor might engage “in any profession or avocation which he could do if he were twenty-one years of age.”

Mississippi Code Annotated section 67-1-37(h) (Supp.1972), which contains the grant of authority to the ABC to adopt regulations, contains within itself the specific restriction and limitation that such regulations or rules shall not be “inconsistent with . any law of this state” or “inconsistent with . . . any . . . statute.”

The general rule in the United States is that an agency’s rule making power does not extend to the adoption of regulations which are inconsistent with actual statutes. 1 Am.Jur.2d Administrative Law § 133 (1962). As stated in Kansas Commission on Civil Rights v. City of Topeka Street Department, 212 Kan. 398, 401, 511 P.2d 253, 256, cert. denied 414 U.S. 1066, 94 S.Ct. 573, 38 L.Ed.2d 470 (1973):

The regulation adopted by the administrative agency must lie within its competence to make; an administrative regulation may not contravene or nullify a controlling statutory enactment.

See also Crosby v. Barr, 198 So.2d 571, 573 (Miss.1967) and Harris v. Alcoholic Beverage Control Appeals Board, 228 Cal.App.2d 1, 39 Cal.Rptr. 192, 195 (1964).

The decree of the chancery court removing Reynolds’ disabilities of minority generally must be presumed to have been based upon evidence justifying and supporting it. The chancellor in such a case, that is, where disabilities of minority are removed generally and the minor granted the power and responsibility of contracting and of controlling and performing all acts in respect to his property and of engaging in any occupation as if the minor were, in fact, twenty-one years of age, must unquestionably have found from the evidence that the minor was of such maturity, sound judgment and intelligence that the entry of the decree was justified and proper. There is no magic which endows one with wisdom and discretion on one’s twenty-first birthday. Many who are younger are wise, discreet and mature, while others who are older are not, and there may be a few who never will be. On the date of the decree removing her disabilities, Reynolds was slightly more than nineteen years, five months of age. This was about one and a half years beyond the time at which the law had imposed upon her the responsibilities of citizenship. In the eyes of the law she had become of sufficient maturity and judgment to vote in national and state elections at eighteen.

We have concluded that the chancellor reached the right conclusion and that although the ABC has power to adopt regulations, no regulation so adopted may be enforced where its enforcement would be in direct contravention of a clear and unambiguous statute.

Reynolds has cross-appealed contending that Regulation 17 is unconstitutional. However, it is unnecessary to the decision of this case that the question be decided.

AFFIRMED ON DIRECT AND CROSS-APPEALS.

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


text:
    Henry T. LOTT v. STATE of Mississippi.
    No. 49951.
    Supreme Court of Mississippi.
    Nov. 2, 1977.
    Sims & Sims, C. Darrell Reeves, Jr., Carter & Davidson, Dudley H. Carter, Columbus, for appellant.
    A. F. Summer, Atty. Gen. by Frankie Walton White, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before PATTERSON, C. J., and ROBERTSON and SUGG, JJ.
   Appeal from Circuit Court, Lowndes County; Joe O. Sams, Sr., Judge.

AFFIRMED.

INZER and SMITH, P. JJ., and WALKER, BROOM, LEE and BOWLING, JJ., concur.


text:
    Edward Charles LOWE v. STATE of Mississippi.
    No. 49964.
    Supreme Court of Mississippi.
    Nov. 2, 1977.
    Joseph M. Stinson, Tylertown, for appellant.
    A. F. Summer, Atty. Gen. by Henry T. Wingate, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before PATTERSON, C. J., and ROBERTSON and SUGG, JJ.
   Appeal from Circuit Court, Walthall County; Joe N. Pigott, Judge.

AFFIRMED.


text:
    Ricky RICHARDSON v. STATE of Mississippi.
    No. 49950.
    Supreme Court of Mississippi.
    Nov. 2, 1977.
    Sims & Sims, C. Darrell Reeves, Jr., Columbus, for appellant.
    A. F. Summer, Atty. Gen. by Pete J. Cajoleas, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before PATTERSON, C. J., and ROBERTSON and SUGG, JJ.
   Appeal from Circuit Court, Lowndes County; Joe 0. Sams, Sr., Judge.

AFFIRMED.


author: LEE, Justice,

text:
    Willard DEMPSEY v. STATE POULTRY COMPANY and Travelers Insurance Company.
    No. 49986.
    Supreme Court of Mississippi.
    Nov. 2, 1977.

      Dixon L. Pyles, John L. Maxey, II, Pyles, Cupit & Maxey, Jackson, for appellant.
    Daniel, Coker, Horton, Bell & Dukes, Roger C. Clapp, Jackson, for appellee.
    Before SMITH, BROOM and LEE, JJ.
   LEE, Justice,

for the Court:

Willard Dempsey appeals from a judgment of the Hinds County Circuit Court affirming an order of the Mississippi Workmen’s Compensation Commission (which affirmed the attorney-referee), denying workmen’s compensation benefits. The sole question involved is whether or not the Commission’s order was supported by substantial evidence.

Dempsey contends that on July 21, 1970, while in the scope of his employment, he inhaled ammonia fumes which required him to be hospitalized on said date, and that inhalation of the fumes was a contributing cause to an onset of Klebsiella pneumonia. He further claims that after his discharge from the hospital, he attempted to resume work and on September 2, 1970, injured his back while lifting a heavy pump.

Appellant filed a motion to controvert on October 6, 1970, alleging permanent and total disability resulting from the contraction of pneumonia. No notice was given to the employer-carrier prior to that date. The first hearing was held March 11, 1971, and neither the claimant nor anyone else testified about the alleged back injury of September 2, 1970. On January 20, 1972, claimant amended the motion to controvert and stated that he injured his back while lifting a pump on September 2, 1970. At the second hearing on March 22, 1975, he testified to facts relating to that injury.

Dr. Willard J. Patterson was the admitting doctor on July 22,1970. He submitted a narrative statement diagnosing claimant’s illness as Klebsiella pneumonia and gave a history that claimant told him he was doing fine until three or four days prior to admission, when he began to have a cough and difficulty with his breathing after working on some ice machines and inhaling some ammonia fumes. Dr. Patterson did not testify, and he did not give a causal connection between the illness and the inhalation of ammonia fumes. He requested Dr. Karl Stauss, a thoracic surgeon, to see claimant in consultation with him.

Dr. Stauss was the only physician to testify at the hearings. He confirmed claimant’s illness as Klebsiella pneumonia. Based on a question propounded by claimant’s attorney, “ . . . [D]o you have an opinion as to whether or not the inhalation and the environment in which he was working either caused his condition, contributed to it, or aggravated the condition he may have already had?” Dr. Stauss answered that he did not know the proximity of the patient to the ammonia, the pressure under which the gas escaped, the sort of enclosure involved, how well ventilated the enclosure may have been, or the length of time claimant was exposed to the gas. He stated that certain of these conditions, if combined, could have rendered a situation that would have been more favorable for claimant’s attack of Klebsiella pneumonia. On cross-examination, the following question was asked and answer given:

Q. Doctor, when you saw this gentleman in January of ’71 you said he was complaining of some shortness of breath, some cough and some chest soreness. In your opinion was this disabling so far as work activities were concerned?
A. It didn’t appear to be, and I would say that this man — one of the things that this gentleman then asked me was one of the things that you two gentlemen have been asking me, and I told him what I told you, unless [in less] explicit terms that I did not know whether there was any causal relationship between this ammonia inhalation and his subsequent illness, and I’m still very honestly not certain about that now, and once again I reiterated that I was very pleased that he had overcome his serious illness as well as he had, and I told him he ought to thank his God that he was in as good a shape as I appeared to find him at that time.”

Dr. Willard H. Boggan, an internist, wrote a letter to appellee’s attorney stating that he had reviewed forms filled out by Dr. Patterson and the consult from Dr. Stauss, and that he agreed the diagnosis of Klebsiella pneumonia was well documented. It was his opinion that claimant’s environmental working conditions, though not ideal, probably were not factors in his condition. Dr. Stauss and Dr. Boggan were not advised of any back injury and they failed to discover such a problem when they examined appellant.

Dr. P. B. Simpson submitted a narrative report dated September 17, 1971, wherein he stated that Dempsey told him he had started having back pain after picking up a heavy object on the job, but the doctor further stated that “it is questionable whether the patient relates to picking up the heavy object or whether he relates it only to the coughing episode when he was in the hospital with the pneumonia.”

Dr. Robert Smith submitted a narrative report dated March 13, 1974, which contained the following comment: “It is perhaps significant that a report by his physician dated October 30, 1974, discusses a questionable thrombophlebitis, but makes no mention of a back or leg injury. Again in September of 1970, examination and treatment made no mention of a back or leg problem.”

Dr. O. J. Andy, neurosurgeon, submitted a report dated July 3,1972, after examining claimant. He stated that claimant relates his present illness (back problem) to a pain which he experienced in his back at the time he was lifting a lid off a pump two years before, while working for State Poultry Company. It was Dr. Andy’s opinion that claimant was suffering from a ruptured fifth lumbar intervertebral disc, predominantly left side. He submitted other narrative statements dated September 25, 1972, and July 1, 1974. In none of those reports does Dr. Andy give an opinion that the back condition was causally related to the alleged injury of September 2, 1970.

As was stated in Tiller v. Southern U.S.F., Inc., 246 So.2d 530 (Miss.1971), the substantial evidence rule to support the finding of an order of the Workmen’s Compensation Commission does not mean a small part of the total evidence nor does the rule prevent the appellate court from examining the whole evidence to the end that the act may be applied in a just and reasonable manner. From a careful review of the entire record, we conclude that the order of the Workmen’s Compensation Commission is supported by substantial evidence and that the judgment of the lower court must be affirmed. See Holloway v. Prassell Enterprises, Inc., 348 So.2d 771 (Miss.1977); Gray v. Poloron Products of Mississippi, 347 So.2d 363 (Miss.1977); and Cole v. Superior Coach Corporation, 234 Miss. 287, 106 So.2d 71 (1958).

AFFIRMED.

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


author: ADKINS, Justice.

text:
    Mrs. Stanley (Joyce) GOLDBERG, Stanley Goldberg, Edward T. Graham, and Edward T. Stephenson, Appellants, v. STATE of Florida, Appellee.
    Nos. 49032-49035.
    Supreme Court of Florida.
    July 1, 1977.
    Rehearing Denied Nov. 21, 1977.
    Eugene C. Heiman and Judith H. Hayes of Heiman & Heiman, Miami, for Mrs. Stanley (Joyce) Goldberg.
    Richard B. Marx and Richard N. Krinz-man, Miami, for Stanley Goldberg.
    Louis M. Jepeway, Jr., of Jepeway, Gas-sen & Jepeway, Miami, for Edward T. Graham.
    Mallory H. Horton of Horton, Perse & Ginsberg, Miami, for Edward T. Stephenson.
    Robert L. Shevin, Atty. Gen., and Linda Collins Hertz, Asst. Atty. Gen., for appellee.
   ADKINS, Justice.

This is an appeal from the Circuit Court of Dade County. The trial court directly passed upon the constitutionality of Section 838.06, Florida Statutes (1973). We have jurisdiction. Article V, Section 3(b)(1), Florida Constitution.

Appellants, three Commissioners of Dade County and the husband of one of the Commissioners, were indicted by a grand jury on charges of conspiring to accept and accepting unauthorized compensation in exchange for favorable consideration of certain zoning proposals. Following trial, the jury found each appellant guilty on each count.

The conspiracy count reads in pertinent part as follows:

“[Beginning on the 1st day of March, 1973 and continuing until the 30th day of November, 1974 . . . Joyce . Stephenson . . . Graham and Stanley ... did conspire with Rothstein or . . MacLean, or both, to commit a series of felonies, to wit: The offering or payment of money as bribes or unauthorized compensation by Rothstein or MacLean, or both, to Joyce . Stephenson and . . . Graham in their capacity as . County Commissioners ... in violation of Sections 838.011 and 838.071, Florida Statutes, and the corrupt solicitation or acceptance of money as bribes or unauthorized compensation by ... Joyce . . . Stephenson . . . and Graham in their capacity as . County Commissioners ... in violation of Sections 838.012 and 838.06, Florida Statutes, and in furtherance of said conspiracy . . . Joyce . Stephenson . . . and Graham did corruptly solicit or accept money or other valuable thing from . . . Rothstein . or . . . MacLean, or both, to obtain the affirmative votes of . Joyce . . . Stephenson and . Graham or as unauthorized compensation for the affirmative votes of Joyce . . . Stephenson and . Graham in their public capacity as County Commissioners ... on various zoning matters brought or to be brought before the . . . County Commissioners by Roth-stein during the aforesaid time period, such conspiracy being in violation of Section 833.04 . .

We hold that the conspiracy indictment was insufficient to inform appellants of the charges against them, and therefore reverse the trial court’s denial of appellants’ motion to dismiss as to Count I.

The shot-gun approach of a conspiracy charge could amount to a prosecution for general criminality resulting in a finding of guilt by association. The courts should, at all times, guard against this possibility so that the constitutional rights of an individual are not curbed or clouded by the web of circumstances involved in a conspiracy charge. This type of charge is not looked upon with favor by some legal scholars.

The following appears in the Unnecessary Crime of Conspiracy by Phillip E. Johnson, 61 Cal.L.Rev. 1137 (Sept.1973):

“The advantages which conspiracy provides the prosecution are seen as disadvantages for the defendant so serious that they may lead to unfair punishment unfairly determined. Critics taking this approach typically propose to trim conspiracy doctrine just enough to provide protection for defense interests without disturbing those rules deemed genuinely important for effective law enforcement.” ... At 1137.
“The central fault of conspiracy law and the reason why any limited reform is bound to be inadequate can be briefly stated. What conspiracy adds to the law is simply confusion, and the confusion is inherent in the nature of the doctrine. The confusion stems from the fact that conspiracy is not only a substantive inchoate crime in itself, but the touchstone for invoking several independent procedural and substantive doctrines. We ask whether a defendant agreed with another person to commit a crime initially for the purpose of determining whether he may be convicted of the offense of conspiracy even when the crime itself has not yet been committed. If the answer to that question is in the affirmative, however, we find that we have also answered a number of other questions that would otherwise have to be considered independently. Where there is evidence of conspiracy, the defendant may be tried jointly with his criminal partners and possibly with many other persons whom he has never met or seen, the joint trial may be held in a place he may never have visited, and hearsay statements of other alleged members of the conspiracy may be used to prove his guilt. Furthermore, a defendant who is found guilty of conspiracy is subject to enhanced punishment and may also be found guilty of any crime committed in furtherance of the conspiracy, whether or not he knew about the crime or aided in its commission.
“Each of these issues involves a separate substantive or procedural area of the criminal law of considerable importance and complexity. The essential vice of conspiracy is that it inevitably distracts the courts from the policy questions or balancing of interests that ought to govern the decision of specific legal issues and leads them instead to decide those issues by reference to the conceptual framework of conspiracy. Instead of asking whether public policy or the interests of the parties requires a particular holding, the courts are led instead to consider whether the theory of conspiracy is broad enough to permit it. What is wrong with conspiracy, in other words, is much more basic than the overbreadth of a few rules. The problem is not with particular results, but with the use of a single abstract concept to decide numerous questions that deserve separate consideration in light of the various interests and policies they involve.” At 1139-40.

Also, in Conspiraacy — The Prosecutor’s Darling by Solomon A. Klein, 24 Brooklyn L.Rev. 1 (Dec.1957), the following appears:

“[CJonspiracy has become an ‘elastic, sprawling and pervasive offense . so vague that it almost defies definition’, and, ‘chameleon-like, takes on a special coloration from each of the many independent offenses on which it may be overlaid.’ Because of its wide reach and complexity, it is more difficult to confine within definitive limits than any other type of crime. The statutory ‘definitions’ are really no definitions at all; they merely describe broad categories of antisocial objections which make a ‘conspiracy’ punishable. The best that the courts have been able to say is that: ‘The gist of the crime of conspiracy consists in a corrupt agreement between two or more individuals to do an unlawful act, unlawful either as a means or as an end.’ ” At 3.

More than fifty years ago the conference of senior circuit judges, presided over by Chief Justice Taft, condemned the prevalent use of conspiracy charges brought “for the purpose — or at least with the effect — of bringing in much improper evidence,” and emphasized that “the rules of evidence in conspiracy cases make them most difficult to try without prejudice to an innocent defendant.” Report of the Attorney General of the United States for 1925, at 5-6.

We recognize that the charge of conspiracy is an excellent tool in combating organized crime, but the use of this charge has been expanded to dragnet proportions in some instances. Of course, the law of criminal attempt is sufficient to protect society against the danger of incipient wrongdoers. Also, if several join in the commission of a criminal act, the prosecutor could rely on the basic rule that one who counsels, commands, induces, procures or aids and abets another in committing a crime is punishable as a principal defendant. These alternatives are available and could be used in lieu of a conspiracy charge.

Although the conspiracy doctrine has been referred to as “the darling of the modern prosecutor’s nursery,” (Harrison v. United States, 7 F.2d 259, 263 (2d Cir. 1925)), it is the duty and responsibility of the judiciary to eliminate, or at least to minimize the dangers of abuse.

The indictment involved in the present case is clearly deficient under the criteria set forth by this Court in State v. Smith, 240 So.2d 807 (Fla.1970):

“An indictment or information for conspiracy must contain a statement of the facts relied on as constituting the offense in ordinary and concise language, with as much certainty as the nature of the case will admit, in such a manner as to enable a person of common understanding to know what is intended, and with such precision that the accused may plead his acquittal or conviction to a separate indictment or information based on the same facts.” At 809.

Some of the more patent flaws found in the present indictment are as follows:

(1) It is impossible to tell whether it charges that all four appellants jointly conspired with “Rothstein ... or Mac-Lean, or both,” or whether there were two conspiracies, one between some of the appellants and Rothstein, and the other between the remaining appellants and MacLe-an;

(2) It is impossible to tell whether the “offering or payment” of “bribes or unauthorized compensation” was made by Roth-stein, or MacLean, or both;

(3) It is impossible to tell whether appellants are accused of “soliciting or accepting bribes or unauthorized compensation” jointly or severally; and

(4) Appellant Stanley Goldberg is named as one of the conspirators, yet he is named neither as a payor nor a payee of unauthorized compensation to a public official. His role in the alleged conspiracy can only be a matter for speculation. In sum, this indictment defies elucidation by even the most Byzantine mind.

The prejudice to appellants resulting from the defective conspiracy count is itself sufficient to mandate a new trial on the remaining charges. However, the record before us is replete with errors, several of which individually and all of which cumulatively would warrant reversal. We feel compelled to discuss perhaps the most egregious.

While this case was pending and during the trial, a similar case was pending against Harry Harris, a Commissioner of Monroe County, Circuit Court Case No. 75-5473, State v. Harry Harris. In both Harris and the instant case, George MacLean was named as a co-conspirator but not prosecuted. The State granted immunity to Mac-Lean to procure his testimony in both of these prosecutions. His testimony was to be essentially the same in both cases — that he gave money to the defendants in each case as a bribe to influence matters before the respective County Commissions. Subsequently, the Harris prosecutor (who also prosecuted the present case) requested that MacLean be called as a court’s witness since the results of a polygraph examination indicated that he was testifying falsely, thereby prejudicing the State, and, in at least one area serving his own interest to the detriment of the defendant. The trial court refused the request. The Third District Court denied certiorari. State v. Harris, 320 So.2d 57 (Fla. 3d DCA 1975). The State then dismissed the information against Harris.

In the instant case, the State again moved that MacLean be declared a court’s witness, and again the request was denied. Prior to trial, defense counsel requested the State to disclose “every crime for which George MacLean had been given immunity,” “all of the terms of the immunity granted to George MacLean,” and “copies of statements of the State’s witnesses who have been given immunity, which statements contain inconsistencies . with reference to the matter charged in the indictment herein.” Notwithstanding these requests, the State never disclosed the Harris case.

The failure of the trial judge to grant appellants’ motion for a new trial under these circumstances runs squarely afoul of Mesarosh v. United States, 352 U.S. 1, 77 S.Ct. 1, 1 L.Ed.2d 1 (1956). In Mesarosh, while review of the defendant’s conviction was pending before the United States Supreme Court, the Solicitor General informed the Court that he had just received information indicating that one of the Government’s witnesses at trial had testified falsely in similar proceedings. While the Government believed that the witness’ testimony at trial was “entirely truthful and credible,” it suggested a remand to the district court for a determination thereof. 352 U.S. at 4, 77 S.Ct. 1. The Supreme Court reversed the conviction and ordered a new trial. The Mesarosh rule has subsequently been applied to situations in which the defense, rather than the prosecution, brings to light the unreliability of a prosecutorial witness’ testimony in another proceeding in the same field of activity. United States v. Chisum, 436 F.2d 645 (9th Cir. 1971).

MacLean’s testimony in both cases involved alleged payoffs to County Commissioners in order to procure favorable treatment on zoning matters. This is clearly a “similar field of activity.” Thus, appellants’ convictions are as tainted as those in Mesarosh and Chisum, and a new trial is required in accordance with those decisions.

In addition, the State’s knowing failure to disclose details of MacLean’s testimony in the Harris case violated Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Such details were essential to preparing a defense in a case of this nature, where witness credibility was virtually determinative of the entire issue.

Since there are other grounds to support our decision, we fail to reach the constitutional questions raised by appellants. This case is reversed and remanded, with directions to the trial court to dismiss Count I of the indictment, and grant a new trial on the remaining charges.

It is so ordered.

OVERTON, C. J., and BOYD, SUND-BERG, HATCHETT and KARL, JJ., concur.

ENGLAND, J., dissents.