text:
    Mrs. Nancy Riddle, wife of Curtis H. EVERETT v. Curtis H. EVERETT.
    No. 8033.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 13, 1977.
    Rehearing Denied May 17, 1977.

      Sidney J. Parlongue and Philip R. Riegel, Jr., New Orleans, for plaintiff-appellant.
    Steven R. Plotkin and John William Cor-rington, New Orleans, for defendant-appel-lee.
    Before GULOTTA, STOULIG and SCHOTT, JJ.
   This is a suit by the wife for divorce based upon allegations that her husband committed adultery on two occasions in September, 1975.

The evidence established that these parties together consulted an attorney in July, 1975, for the purpose of securing a quick divorce. He advised them to proceed with the divorce in the Dominican Republic and prepared a special power of attorney by which plaintiff appointed a lawyer in the Dominican Republic to represent her, make a personal appearance in her behalf and submit without qualification to the jurisdiction of that court. They also entered into an agreement with respect to a division of community property, and payments to be made to the wife following the divorce. On July 30 defendant secured his Dominical Republic divorce as planned and the terms of the settlement agreement were carried out until October when this action was filed.

Two detectives testified that they conducted a surveillance of defendant on the September dates in question and observed him and the co-respondent entering his home early in the evening and remaining until the next morning. All lights in the house were extinguished. Defendant admitted that the co-respondent was in his home on the two nights involved, but denied committing adultery claiming that he slept in the upstairs bedroom and she slept downstairs. No one else was in the home. He also admitted that he took the co-respondent on a trip to Europe in August, and that she moved in to live with him in October and November.

The trial judge found that the Dominican Republic divorce was invalid but that plaintiff was estopped from bringing the action. In his reasons for judgment, he made the following observations:

“The Court believes that both parties wanted a divorce and that Mrs. Everett voluntarily signed the power of attorney enabling Mr. Everett to proceed with the divorce in the Dominican Republic. It appears that Mr. Everett relied on these representations and, after returning from the Dominican Republic, changed his position and lived his life as a single man. Although the Court is aware that estop-pels are not favored in our law, it believes that the necessary requirements as set forth in the case of Wilkinson v. Wilkinson, 323 So.2d [120] (La.Sup.Ct., 1975) have been met and that it would indeed be unjust and inequitable to hold that Mr. Everett had been guilty of adultery under these circumstances.”

The trial court also found that the evidence was insufficient to prove that defendant committed adultery on the two occasions pleaded.

Both parties appealed from the judgment, defendant claiming that the Dominican Republic divorce was valid.

In Clark v. Clark, 192 So.2d 594 (La.App.3rd Cir. 1966) the validity of a Mexican divorce was at issue. The court started with the proposition that even with respect to a divorce obtained in one of Louisiana’s sister states our courts have refused to recognize the divorce as valid when the moving party did not establish a bona fide domicile in the sister state. This principle applies in the face of the full faith and credit clause of the Constitution of the United States so that surely it applies to a divorce obtained in a foreign country.. The court concluded:

“Under the universally acknowledged principle that the judicial power to grant a‘ divorce is founded on domicile, and because the plaintiff and defendant admittedly went to Mexico for the sole purpose of obtaining their respective divorces, we hold that the divorces thus obtained were patently invalid and of no effect whatsoever.”

Defendant has cited cases from New York which have departed from the bona fide domicile rule in cases where both spouses have voluntarily submitted to the jurisdiction of a sister state or even a foreign country, but no Louisiana case has been cited by him or found by us which supports this view. The annotation at 13 A.L.R.3d 1424 states that New York stands alone among the states in departing from the general rule that the tests of jurisdiction applied by the courts in the United States are those of the states rather than the divorcing country and a divorce obtained in a foreign country will normally not be recognized as valid if neither spouse had a domicile in that country, even though domicile is not required for jurisdiction by its laws.

We are not persuaded by the arguments advanced by defendant with respect to comity. No attempt was made to prove facts making comity applicable to this situation in the first instance. Nor are we impressed with the argument that this is a problem affecting only the individuals and does not involve “compelling state interests.” We think that the state does have an interest in having a clear cut determination as to the status of its citizens and it should not recognize a quick divorce obtained by its citizens on overnight trips to foreign countries where attitudes and philosophies of the courts, as well as concepts of substantive and procedural due process, are entirely unknown and probably inconsistent with our own.

Having concluded that the divorce was invalid, as did the trial court, thereby disposing of defendant’s appeal, we turn to the primary basis on which the trial judge decided this case, to wit, that plaintiff was estopped from bringing the action.

The principle of estoppel applies if there are three elements present, 1) a representation by conduct or word, 2) justifiable reliance, and 3) a change in position to one’s detriment because of the reliance. Wilkinson v. Wilkinson, 323 So.2d 120 (La.1975). We do not agree with the trial court that the facts of this case support the application of the principle.

Defendant testified that when the arrangements were made with his wife and the attorney in New Orleans for him to secure the Dominical Republic divorce the attorney told him that the divorce was valid. Plaintiff testified to the same effect, although she claimed that she had doubts about the validity of the proposed divorce. However, she admitted that she did nothing by way of subsequent protest, she made no statement to her husband or his attorney as to her doubt about the divorce’s validity, and she accepted $500 and some movable property in August as provided for in the settlement agreement.

At the outset of this discussion, we should consider precisely what plaintiff was said to be estopped from doing. It can hardly be said that she was estopped from seeking a divorce since we have concluded that the Dominican Republic divorce was invalid with the result that her marriage was still intact. Even if the above referred to elements of estoppel were established by the evidence in this case, it cannot be said that plaintiff was estopped from seeking a valid divorce. This seems consistent with Barringer v. Dauernheim, 127 La. 679, 53 So. 923 (1910). In that case, the wife brought suit for a divorce alleging that the husband had obtained a fraudulent divorce in Texas and thereafter entered into a second marriage. The wife alleged that the husband was committing adultery since he was not legitimately divorced before his remarriage. While there was no active participation in the Texas divorce by the wife and while the only evidence supporting the jurisdiction of the Texas court was a return showing personal service of the summons on the wife the court’s disposition of the plea of estoppel seems applicable to the instant case, as follows:

“The plea of estoppel cannot avail, as against the demand for a divorce. The marriage status of the parties is a matter of public interest. Parties can neither dissolve their marriage by consent, nor make it indissoluble or perpetual by consent. If one of them have a cause for divorce, the state has an interest in having the divorce pronounced. The state has an interest that the plaintiff in the present case be not kept in the anomalous position of a married woman who cannot apply to the court for a divorce although her husband is living with another woman. If plaintiff have good ground for divorce and be desirous of remarrying, the state has an interest in her being divorced and allowed to remarry.”

The question then becomes whether es-toppel can be said to preclude plaintiff from bringing the action for divorce based on adultery; that is, whether she was estopped from urging adultery as a ground for. her divorce even though she may not be es-topped from seeking a valid divorce on other grounds. We have concluded that she is not because the first necessary element to support estoppel is not here present, i. e., there was no representation on the wife’s part by conduct or word on which the husband relied to his detriment. The evidence shows that the representation relied on, to wit, the validity of the Dominican Republic divorce, was not made by plaintiff but rather by an attorney at law consulted by both parties. Defendant specifically testified that he was told by the attorney that his divorce would be valid. Plaintiff could not make such a representation and even if she had defendant would not have been justified in relying on her words to that effect. The best that can be said for defendant is that his wife was given the same advice as he was; namely, that the divorce would be valid. This is not a case where there was any connivance on the part of the wife to induce the husband to commit adultery but rather where both parties were misled by a third party into thinking that such divorce would be valid and the husband acted on that advice to his detriment.

Nor does plaintiff’s accepting a $500 payment and some movables in August pursuant to the July settlement agreement provide a basis for estoppel. Eaton v. Eaton, 227 La. 992, 81 So.2d 371 (1955) is disposi-tive of this point. By making the payment defendant here was simply meeting his obligation to his wife. It was not this conduct by plaintiff which constituted a representation that the Dominican Republic divorce was valid and that he was again a single man.

Having concluded that plaintiff is not estopped from bringing this action, we must now consider whether her evidence was sufficient to prove adultery by defendant. The trial judge gave the following reasons on this point:

“Moreover, the Court is not convinced that the plaintiff has proved her allegations of adultery with the certainty required by law. The Court is aware that adultery can be proven by circumstantial evidence. However, it must be so strong as to exclude every other reasonable hypotheses. Here, the plaintiff has alleged only two instances of adultery on two specific dates. She relies heavily on the testimony of two private detectives to prove her allegations.
“The detectives gave a general description of the results of their surveillances on the dates in question. However, it is apparent that they did not know the internal layout of the house nor could they see the rear of the house from their observation point. In short, the Court was not impressed with their testimony. Additionally, it was revealed that the defendant knew he was being watched on these occasions and he specifically denied having relations with the alleged co-respondent on the dates in question.”

There is no question in this case about the credibility of the detectives or the quality of their work. Their testimony that the co-respondent spent the two nights with defendant in his home was admitted by him. His testimony that he slept in an upstairs bedroom and she slept downstairs and his denial that adultery was committed must be considered in the light of the circumstances where he admitted that he was conducting an amorous affair with the corespondent throughout this period. Under the prevailing jurisprudence the evidence was quite sufficient to support plaintiff’s case. Hermes v. Hermes, 287 So.2d 789 (La.1974); Udin v. Udin, 273 So.2d 56 (La.App. 4th Cir. 1973). To hold otherwise in this case would be a throw back to the old cases which required the married person to catch the spouse in the act in order to prove adultery. Courts are a bit more sophisticated today and infer that people do what comes naturally when they have the opportunity.

Accordingly, the judgment appealed from is reversed and set aside, and there is judgment in favor of plaintiff, Mrs. Nancy Riddle Everett, and against defendant, Curtis H. Everett, decreeing a divorce of vinculo matrimonii forever dissolving the bonds of matrimony heretofore existing between them.

REVERSED AND RENDERED


source: Caselaw Access Project

author: GULOTTA, Judge. SCHOTT, Judge, STOULIG, Judge,

license: Public Domain

text:
    Robert SANDERS et al. v. Lev HALL, Jr. and New Orleans Public Service Inc.
    No. 8099.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 13, 1977.
    Rehearing Denied May 17, 1977.
    Writ Granted July 1, 1977.
    Gerald P. Aurillo, Metairie, for plaintiffs-appellants.
    A. R. Christovich, Jr., New Orleans, for defendants-appellants.
    Before GULOTTA, STOULIG and SCHOTT, JJ.
   GULOTTA, Judge.

Plaintiffs in this action are the driver and four occupants of an automobile which was rear-ended by a NOPSI bus while stopped for a signal light at the intersection of South Claiborne and Carrollton Avenues in the City of New Orleans. Undisputed damages to the automobile amounted to $111.26. The sole issue on appeal is one of quantum with regard to the $2,000.00 general damage award rendered in favor of each plaintiff.

In claiming that the general damage awards are excessive, defendants draw attention to the facts that all of the injured plaintiffs complained of similar back pain, either to the cervical or lumbar areas; that all were administered practically the same course of treatment by the same physician for approximately the same amount of time; that all were discharged at approximately the same time; that all incurred approximately the same amount of medical expense; and, that all sustained exactly the same amount in loss of earnings during a 15-week course of treatment from April 5, 1974 to July 19, 1974.

Plaintiffs, on the other hand, seek an increase from $2,000.00 to $3,000.00 in the general damage award to each claimant. According to plaintiffs, the severity of the impact to their automobile caused the vehicle to move forward 6 feet after the collision and resulted in their sustaining muscle spasms, back, neck and shoulder injuries requiring a course of treatment involving prescriptions for pain relievers, muscle relaxants, and the use of diathermy treatments and office visits to the physician (depending on the individual) on some 27 to 30 occasions.

According to Dr. Sam Charles Macaluso, the treating physician, plaintiffs sustained the following injuries:

1. Robert Sanders, driver of the automobile — lumbosacral strain resulting in moderate tenderness and spasm over the lower back area.
2. John Canty, seated in right front of the automobile — cervical sprain and bilateral trapezoid strain resulting in moderate tenderness and spasm over cervical and shoulder areas.
3. Michael Conner, seated in the center rear of the automobile — lumbar sprain and lumbosacral strain resulting in severe tenderness over lower back area and restriction of movement.
4. Joshua Berry, seated in the left rear of the automobile — lumbar sprain, more severe on left side and strain of the left trapezoid. Dr. Macaluso testified that Berry suffered moderate tenderness and severe spasm over the lower back area with moderate restriction of movement and mild tenderness and spasm over left shoulder area.
5. Larry Hudson, seated in the right rear of the automobile — cervical and lumbar strain resulting in moderate tenderness over the neck area with restriction in movement moderately over this area and moderate tenderness and spasm over the upper back area.

Only Sanders required the use of lumbo-sacral support.

When we consider the medical testimony, the course of treatment and the jurisprudential guidelines set forth in Canter v. Koehring Company, 283 So.2d 716 (La.1973); Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1976) and Robinson v. Graves, 343 So.2d 147 (La.1977), we are compelled to conclude that the $2,000.00 general damage award for each of the plaintiffs is within the judicial discretion of the trial judge. Accordingly, we affirm.

However, to render a decree to that end without further comment upon the peculiar nature of this case would be an abdication of our appellate judicial responsibility. In a case such as this one, we feel a sense of futility in not being able to amend the judgment.

We cannot simply close our eyes to the fact (supported by the record) that legal advise was sought prior to medical care on the same day that the accident occurred. Nor can we overlook similar injuries to five persons in the same or relatively close to the same areas of the anatomy. Further, we would be less than intellectually honest if we did not regard without suspicion virtually identical treatments administered to all five plaintiffs, on the same days, at the same hours and resulting in the simultaneous discharge of all plaintiffs on the same date by the same physician. As pointed out in brief submitted by counsel for the defendants, “It should stretch the imagination of any reasonable person that such coincidence could be present.”

We do not consider plaintiffs’ testimony that only one automobile was available to all five plaintiffs for transportation a satisfactory explanation for the frequency and extent of treatment and same date of discharge for all plaintiffs.

We are mindful that we do not have the benefit of observation of the demeanor of the witnesses and that we are not to substitute our judgment for the reasonable conclusions reached by the trial judge. We recognize also that no contrary medical evidence was presented by defendants. Nevertheless, we believe that the suspicious circumstances call for a substantial reduction of the general damage awards granted by our learned brother on the trial court. However, we are admonished not to substitute our judgment for that of the trial judge. See Canter v. Koehring Company, supra. Were it not for the requirements of the jurisprudence cited above, we would deem a proper general damage award to each of the plaintiffs, under the circumstances, to be the sum of $300.00. In view of the controlling law, however, we have no choice but to affirm the judgment of the trial court awarding a $2,000.00 general damage award to each of the plaintiffs.

AFFIRMED.

SCHOTT, J., concurs.

STOULIG, J., dissents.

SCHOTT, Judge,

concurring.

Defendants-appellants argue persuasively in their brief to this court as follows:

“This appeal is taken by the defendants with full recognition and appreciation of the workload of this Court, but with a concomitant feeling of duty and obligation to illustrate to this Court what is happening almost daily in the trial courts with respect to claims such as have been made here. If something constructive could be done about discouraging the procedures that are present in the instant case, in the plaintiffs’ preparation of their claims, it could go a long way to reducing the workload of all the Courts. We say this because what has become ‘standard operating procedure’ in the presentation of plaintiff’s claims on soft tissue injuries, is underlined and multiplied by five in the instant case. There are five plaintiffs. They are all represented by the same counsel. They all went to the same doctor. Within $10, they all incurred the same medical bills. They all began treatment on the same day. They were all discharged on the same date. It should stretch the imagination of any reasonable person that such coincidence could be present.”

Considering these facts which are borne out by the record, a reversal of the trial court’s judgment or a substantial reduction of quantum would seem to be in order except for the standards for appellate review imposed upon us by the Supreme Court in Canter v. Koehring Company, 283 So.2d 716 (1973).

There it was said that reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review. It may be argued in this case that to award these five plaintiffs the same $2,000 each under the circumstances constituted an unreasonable evaluation of their credibility, but that approach seems to lack merit when we consider the Supreme Court’s stated reasons for the rule:

“The reason for this well-settled principle of review is based not only upon the trial court’s better capacity to evaluate live witnesses (as compared with the appellate court’s access only to a cold record), but also upon the proper allocation of trial and appellate functions between the respective courts.”

Applying these principles to this case, it is true that we can only read what these five witnesses told the trial judge, and without a doubt when this testimony is reduced to writing it is unbelievable. But as live witnesses they must have been quite persuasive because the trial court saw fit after observing them to reward them generously for their performance. In the final analysis, it is impossible for us to say that his evaluation of their credibility was not reasonable because we did not see the performance. It is analogous to the dramatic effect on an audience by the performance of a powerful orator. The audience may be moved to tears or passion but when this is reduced to print it may not have the same effect. Perhaps if we had a videotape of plaintiffs testifying we could say that the trial judge’s evaluation of their credibility was not reasonable, but in the absence of such a tool we are at a disadvantage. Following the Supreme Court’s mandate in the Canter case we cannot substitute our own evaluation of these plaintiffs’ credibility. When these plaintiffs climbed on the witness stand and each said, “I am hurting,” who is to say that they were not hurting? We can say that we don’t believe they were hurting, but the trial judge by awarding these plaintiffs $2,000 each said, “I believe they are hurting.” In the final analysis their awards are supported exclusively by his belief of their testimony. Objective pain is not always subject to confirmation or contradiction by physical evidence, so that, in a sense, the final decision as to whether plaintiffs were hurting or not before, during and after their course of treatment was for the trial judge alone to decide.

I also concur with Judge Gulotta to the effect that $300 would be adequate for each of these plaintiffs but I do not believe a reduction is supportable under the prevailing jurisprudence of the Supreme Court.

Under the Louisiana Constitution of 1974 appellate jurisdiction of a Court of Appeal extends to facts as well as law, Art. 5, § 10(B). In two recent cases, Robinson v. Graves, 332 So.2d 303 (La.App.4th Cir. 1976) and Coco v. Winston Industries, 330 So.2d 649 (La.App.3rd Cir. 1976), careful reviews of the facts presented at the trial were made by the appellate courts and reductions in the quantum of the awards were made. In both cases, the Supreme Court reversed the courts of appeal and reinstated the judgments of the trial court. Coco v. Winston Industries, Inc., 341 So.2d 332 (1977), Robinson v. Graves, 343 So.2d 147 (La.1977). The primary basis for the Supreme Court’s action in both cases was that abuse of the “much discretion” in making awards for general damages afforded to the trial court by LSA-C.C. 1934(3) was not demonstrated by the record. In these cases, the Supreme Court restated and reaffirmed principles repeatedly announced since the Court’s decision in Gaspard v. LeMaire, 245 La. 239, 158 So.2d 149 (1963). See cases cited in the Supreme Court’s decision in Coco v. Winston Industries, Inc., supra.

One definition of the word “discretion” is the “Power or privilege of the court to act unhampered by legal rule.” Black’s Law Dictionary revised 4th ed. 1968. Another is “Freedom to act or judge on one’s own.” The American Heritage Dictionary of the English Language, 1969. One definition of the word “abuse” is “to make an extravagant or excessive use, as to abuse one’s authority.” Black’s Law Dictionary, revised 4th ed. Another is “to use wrongly or improperly.” The American Heritage Dictionary of the English Language, 1969. Thus, when we speak of abuse of discretion we are in a sense using a phrase which is inherently self contradictory. If a trial court’s discretion under C.C. Art. 1934 means that he can set awards for general damages “unhampered,” how can it ever be said that he has made extravagant or excessive use of that discretion. If it means that he is free to make awards on his own, how can it be said that he has misused his authority even though everyone else considers the award he made to be excessive. Furthermore, under the definitions given for discretion it would seem that the use of the word “much” preceding “discretion” in Art. 1934 is a redundancy. If the trial judge is to act unhampered and if he has the freedom to act on his own in making general damage awards these expressions are absolute, and the word “much” does no more than emphasize what is said by the word “discretion.”

Recent decisions of the Supreme Court seem to indicate that as a matter of law the “much discretion” afforded by Art. 1934 means that the trial judge has freedom to act on his own practically unhampered by the appellate court’s constitutional obligation to review the facts. While the Supreme Court opinions continue to state that appellate courts should reduce awards where there is an abuse of this “much discretion,” in practice the case is indeed rare where this appellate judicial authority has any application. This is demonstrated by the fact that the Supreme Court has seldom increased or decreased the quantum awarded by the trial court in recent years and has repeatedly granted writs of review to reinstate trial court awards where the courts of appeal have changed such awards. The fact that the Supreme Court has refused writs of review where changes have been made by the appellate courts is apparently of no significance whatsoever. See the Supreme Court’s discussion in Coco v. Winston Industries, Inc., supra, and compare with the coiirt of appeal opinion in the same case in which 19 writ denials are cited and discussed.

If each of the five plaintiffs in this case had filed separate suits and had recovered the same $2,000 appellants’ argument for a reduction would not be nearly as persuasive. Had the trial court attempted to make some distinction among them based on their appearance or age perhaps he could have awarded some amounts which varied by $100 or so. But, in the exercise of his “much discretion” he gave them the same amounts. Can it be said that this constituted an abuse of that discretion? Under the Supreme Court’s decisions I cannot say that it was.

In connection with appellants’ statement concerning the workload of this court, we do not hesitate to undertake the performance of our duty in connection with any individual case regardless of any backlog or workload, but we are constrained to decide cases within the jurisprudential guidelines announced by the Supreme Court. It has been said that intermediate appellate courts are concerned with the results, and it is the function of the Supreme Court to shape the jurisprudence. Canter v. Koehring spoke of “the proper allocation of trial and appellate functions between the respective courts.” It would not benefit the litigants, their attorneys, or the jurisprudence for us to make a painstaking analysis of the testimony of these witnesses in this case to explain a reduction in the quantum of the awards when in all probability the Supreme Court would grant a writ of review, write still another opinion reiterating the principles they have expressed before, and reinstate the judgment of the trial court. Appellants’ argument more properly should be addressed to the Supreme Court and not to this court.

I concur in the result.

STOULIG, Judge,

dissenting.

I respectfully dissent.

La.Const. Art. 5, § 10(B) requires this court to review facts and law.

In this case there are two possible results I could reach in good conscience: (1) reducing quantum to a nominal award on a finding that plaintiffs possibly suffered inconsequential injury; or (2) affirming on liability but making no damage award because the plaintiffs evidence is not credible. The first approach requires our explaining why Gaspard v. LeMaire, 245 La. 239, 158 So.2d 149 (1963), and that line of jurisprudence is not applicable, the second requires an application of the exception to the manifest error rule recently explained in Canter v. Koehring Company, 283 So.2d 716 (La.1973).

I prefer the result denying recovery because it is evident from the record that five claimants have been run through assembly-line type medical treatment to either create or exaggerate soft tissue back and spine injury claims. Every judge on this panel has been impressed by the marked similarities in the complaints and course of treatment of all five, specifically in that:

1. All have soft tissue injuries.
2. None consulted treating physicians known to them prior to the accident.
3. All were referred to Dr. Sam Macalu-so by the attorney who represents them all.
4. All consulted Dr. Macaluso on April 5, 1974, the date of the accident.
5.' All had 30 diathermy treatments.
6. None were x-rayed.
7. All were discharged the same day, July 19, 1974.

I do not believe this similarity is coincidental. My suspicion does not rest on the evaluation of the testimony of one witness. When I review this record, I cannot conjure up any reasonable circumstances or conclusions upon which the trial judge may have based his result. I do not propose to substitute my own theory with an opposite one, equally reasonable, reached by the trial judge. Instead, I point out there is only one obvious conclusion, i.e., that the courts have been cynically used to reward opportunists attempting to capitalize on an accident with a General Motors approach to building a claim of medical evidence. Thus I fall within the exception to the general rule I now quote from Canter:

“When there is evidence before the trier of fact which, upon its reasonable evaluation of credibility, furnishes a reasonable factual basis for the trial court’s finding, on review the appellate court should not disturb this factual finding in the absence of manifest error. Stated another way, the reviewing court must give great weight to factual conclusions of the trier of fact; where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. The reason for this well-settled principle of review is based not only upon the trial court’s better capacity to evaluate live witnesses (as compared with the appellate court’s access only to a cold record), but also upon the proper allocation of trial and appellate functions between the respective courts.” 283 So.2d at 724.

The key to Canter is reasonableness. An appellate court should not substitute an opposite factual conclusion that might be equally reasonable or a shade more reasonable. However this does not mean that Canter requires us to abdicate our constitutionally conferred jurisdiction to review factual findings and/ or damage awards. Where the result is manifestly wrong and/or where quantum is greatly excessive or inadequate, we should modify a judgment. It making this observation I am aware of the rebuke of Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1976), as to quantum modification by appellate courts.

Yet the facts in this case demand these plaintiffs should not be rewarded for their deceit. The accident could have produced these injuries. Conceding this I could agree to a nominal award of $200 and point out, percentagewise, the reduction is sufficiently significant to fall within an exception to Gaspard.

Plaintiffs must prove their claims with credible evidence. Viewed in the light most favorable to plaintiffs, they were slightly injured and they attempted to exaggerate the extent of their damage rather than to simulate injuries that were nonexistent. On this basis I could award $200 per plaintiff.

      . The medical bills of the plaintiffs were as follows: Sanders, $350.00; Canty, $340.00; Hudson, $350.00; Conner, $380.00; Berry, $360.00.

      . Virtually all of the time missed by plaintiffs from work was occasioned by their visits to Dr. Macaluso. Plaintiffs all worked for the same employer.


author: COVINGTON, Judge.

text:
    Linda Lynch DOLHONDE v. Kenneth C. DOLHONDE.
    No. 11454.
    Court of Appeal of Louisiana, First Circuit.
    April 13, 1977.
    Lemuel E. Hawsey, Baton Rouge, for appellant.
    Wright Wade Adams, Baton Rouge, for appellee.
    Before SARTAIN, COVINGTON and LOTTINGER, JJ.
   COVINGTON, Judge.

Judgment was rendered on November 18, 1976 on the plaintiff’s motion to determine and make executory the amount of arrear-ages in child support. Judgment was signed on December 9, 1976, and the requested notice of the judgment was mailed to the defendant on January 11, 1977. The defendant obtained an order for suspensive appeal, and alternatively for devolutive appeal, on January 18, 1977. On the same date the defendant filed an appeal bond, pledging his share savings account with the Ponchatoula Homestead Association to the clerk of the trial court as security for a suspensive appeal by depositing his account book with the clerk. On January 25, 1977, the defendant filed a written acknowledgment of receipt of the homestead association. The record on appeal was lodged in this Court on March 10, 1977.

On March 14, 1977 the plaintiff-appellee filed a motion to dismiss the appeal, contending that the security was invalid and insufficient and that the appeal should be dismissed. Thereafter, the defendant-appellant filed a devolutive appeal bond in the trial court.

This is not an instance where there was a total failure to file an appeal bond as in Guilliot v. City of Kenner, 326 So.2d 359 (La.1976), where the purported bond was an unsigned bond form. See also Mason v. State Farm Mut. Auto. Ins. Co., 312 So.2d 175 (La.App. 1 Cir. 1975). This bond was admittedly timely filed. The contention of the appellee in the instant case addresses itself to the validity and sufficiency of the appeal bond, not the failure to file bond.

LSA-C.C.P. art. 2088 provides that after an appeal has been taken, jurisdiction of the trial court remains to consider objections to the validity and sufficiency of the appeal bond, and to permit the curing of the defect as provided in LSA-C.C.P. art 5123, et seq. Article 5123 declares that the testing of the validity or sufficiency of the bond must bé done by rulé in the trial court.

It is well established that an appeal will not be dismissed because the appeal bond is invalid or insufficient unless the validity or sufficiency of the appeal bond has been first contested in the trial court, and the appellant has been afforded an opportunity to cure the defect or supply the insufficiency. See Arrow Construction Co., Inc. v. American Emp. Ins. Co., 273 So.2d 582 (La.App. 1 Cir. 1973), and cases therein cited.

As stated in the Arrow case:

“The clear import of all the above statutory provisions is that jurisdiction to try an alleged insufficiency or invalidity of an appeal bond is vested and remains exclusively in the trial courts. Our review of the cases interpreting both the old and new statutes • discloses that the jurisprudence has in effect confirmed the concept that the issue is jurisdictional, and that jurisdiction in such instances is vested exclusively in the trial court.”

In Arrow this Court held that appellate courts are without jurisdiction to try initially the validity or sufficiency of an appeal bond, and that jurisdiction of appellate courts in such instances is limited to review of the trial court’s action. See also Pardue v. Pardue, 285 So.2d 552 (La.App. 1 Cir. 1973).

Inasmuch as there was no rule to test the validity or insufficiency of the appeal bond in the instant case there is no action of the trial court in this respect for us to review.

We are without jurisdiction in this instance to test initially the validity or sufficiency of the appeal bond; and, accordingly, we deny the motion to dismiss this appeal.

MOTION TO DISMISS APPEAL DENIED.


author: BOUTALL, Judge.

text:
    STATE ex rel. JEFFERSON PARISH SCHOOL BOARD v. CITY PARK IMPROVEMENT ASSOCIATION et al.
    No. 7570.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 18, 1977.
    Rehearing Denied May 17, 1977.
    Writ Refused July 1, 1977.
    Jack A. Grant, Gretna, Counsel, James 0. Manning, Metairie, Sp. Counsel, for Jefferson Parish School Bd., plaintiff-appellant.
    Philip S. Brooks, City Atty., Thomas P. Anzelmo, Sr., Asst. City Atty., New Orleans, for City of New Orleans, defendant-ap-pellee.
    Samuel I. Rosenberg, Polack, Rosenberg, Rittenberg & Endom, New Orleans, for Orleans Parish School Bd., defendant-appellee.
    Duke & Porterie, John L. Han tel, Louis B. Porterie, New Orleans, for City Park Imp. Assn.
    William J. Guste, Jr., Atty. Gen., Warren E. Mouledoux, First Asst. Atty. Gen., Louis M. Jones, Asst. Atty. Gen., Dept, of Justice, State of Louisiana on behalf of Registrar, State Land Office, and the State of Louisiana, for defendants-appellees.
    Before REDMANN, BOUTALL and SCHOTT, JJ.
   BOUTALL, Judge.

This is a suit in the nature of a declaratory judgment brought by Jefferson Parish School Board to determine the nature and status of its right to approximately 28 acres of land situated in City Park of New Orleans, Louisiana, being the fractional remainder of the 16th Section of Township 12, South Range 11 East, Southeastern Land District of Louisiana. Specifically, the suit seeks to declare that Act 405 of the Louisiana Legislature of 1962 is unconstitutional, and that subsequent transfers of the 16th Section property are illegal, and should be set aside. The suit seeks to have the Jefferson Parish School Board declared to be a partial owner of the 16th Section or in the alternative, that it be reimbursed its proportionate share of the cash value of the property.

The defendants have brought a motion for summary judgment, and it is conceded that there is no dispute as to the facts underlying this case. The trial court rendered a judgment in favor of defendant, dismissing plaintiff’s suit, and the Jefferson Parish School Board has appealed.

The subject property is the remainder of one of those 16th Sections of each Township which were granted by the United States of America to the various states upon admission to statehood to be used for school purposes. The original survey of the Township showed that the 16th Section was only a fractional 16th Section, and much litigation has occurred affecting both the boundaries and the area of the Section. See Board of Directors v. New Orleans Land Company, 138 La. 32, 70 So. 27 (1915); Leader Realty Company v. Lakeview Land Company and Leader Realty Company v. New Orleans Land Company, 142 La. 169, 76 So. 599 (1917); State v. New Orleans Land Company, 143 La. 858, 79 So. 515 (1918); Brott v. New Orleans Land Company, 151 La. 134, 91 So. 653 (1922); Meyer v. State, 168 La. 146, 121 So. 604 (1929). As presently constituted the fractional section is approximately 16 acres in City Park of New Orleans lying roughly in a long narrow rectangle. While the 16th Section is located entirely in Orleans Parish, the Township itself lies in the proportion of 85.16% in Orleans and 14.84% in Jefferson Parish.

Because of the location and shape of the fractional Sixteenth Section, the Orleans Parish School Board determined that it should arrange a transfer or exchange of that land for a tract on the north boundary of City Park upon which to erect a high school. After considerable negotiations, an arrangement was made amongst the defendants whereby the exchange could be made. The Louisiana Legislature then passed Act 405 of 1962 providing for the state to transfer title of the Sixteenth Section Lands to the City of New Orleans to be managed and controlled by the New Orleans City Park Improvement Association (a State Agency) for park purposes, and further provided authorization to the City of New Orleans to convey another tract containing 17 acres to the Orleans Parish School Board for public school purposes. The Act further provided that this latter land acquired by the Orleans Parish School Board shall be held by it for the same purposes, benefits and uses as is presently provided by law for Sixteenth Section Lands, and the subsequent sale or other disposition, as well as the disbursement of the proceeds of any subsequent sale thereof, shall be the same as provided by law for Sixteenth Section Lands and the rights of the Jefferson Parish School Board in said land shall be the same as they were in the Sixteenth Section conveyed in Section 1 of the Act. Subsequent to the passage of this Act, the transfers weré effected so that the fractional Sixteenth Section now forms a part of City Park and is administered by the New Orleans City Park Improvement Assn., and the other tract is utilized by the Orleans Parish School Board, which has built a high school upon the tract.

Jefferson Parish School Board contends that Act 405 of 1962 is invalid for the following reasons: By an act of Congress of February 15, 1843, 5 Stat. 600, the Legislatures of Illinois, Arkansas, Louisiana and Tennessee were authorized to sell the Sixteenth Sections in their respective states, the proceeds derived therefrom to be used for the benefit of the various school systems located within the Township in which the land was sold. The Statute further requires that the land shall in no wise be sold without the consent of the inhabitants of the Township or District in which they are located. Thereafter, the Louisiana Legislature, beginning with Act 321 of 1855, which, together with other Acts on the subject are embodied in LSA-R.S. Title 41, Chapter 6, enacted a series of laws to provide for the public sale and leasing of the various Sixteenth Sections, and also enacted Constitutional provisions culminating in, for the purposes of this suit, the Constitution of 1921, Article 12, Sections 18 and 19 to provide for the distribution of these proceeds. It is contended that the exchange of property authorized by Act 405 of 1962 is illegal in that it does not follow the procedures outlined in the laws enumerated above, and that further there is no distribution of proceeds in accordance with those laws.

The issue of the application of the Act of Congress February 15, 1843, c. 33, 5 Stat. 600, requiring consent of the inhabitants of the Township before sale of Sixteenth Section Lands can be made, has been settled in the case of Meyer v. State, 168 La. 146, 121 So. 604 (1929). That case held that when the survey of Sixteenth Sections in Louisiana was officially approved October 20, 1873, the State of Louisiana had a complete legal title vested in it, and was no longer bound by the conditions and limitations imposed by the 1843 Act of Congress. LSA-R.S. 41:711 similarly provides for an election to be held before sale of school lands, and as to these provisions as well as to others of similar nature, we only say that the Legislature has in its wisdom passed another Legislative Act covering the point in controversy, and that such general statutes cannot prevail in the face of a special statute containing contrary provisions.

Turning to a consideration of the constitutional provisions, to-wit, Article 12, Section 18 and Section 19 of the Constitution of 1921, we do not find in those sections a prohibition against the transaction authorized under Act 405 of 1962. Those sections envisage a recovery of proceeds from lands erroneously sold, which is either credited proportionately to the school boards involved, or placed into a school fund for later use by those school boards. We note for example that the same Constitution in Article 12, § 14 points out the sources of funds for support of public schools. After enumerating the avails of certain taxes, etc., it sets out in subsection (c) additional state funds, the first of which is the following:

“1. The interest on the proceeds of lands heretofore or hereafter granted by the United States for school purposes and such revenues as may be derived from unsold portions of such lands; provided, that the Legislature is authorized to release all proceeds from the sale of such lands to the parishes for use in acquiring, constructing, and equipping public school-plant facilities.”

Considering these three sections of Article 12, it would appear that the state may sell, lease or otherwise enter into contracts which may provide revenue from the use or disposition of school lands, and while the sections appear to consider that these proceeds will usually be in cash, there is nothing that would prevent the state from legislatively providing for other proceeds not in cash, and the disposition of these proceeds.

Under existing law (R.S. 41:631 as amended Acts 1954, No. 86 § 1) since the Sixteenth Section involved lies entirely in the Parish of Orleans, the Orleans Parish School Board is entitled to buy the tract for its exclusive school purposes, and need only pay into the fund for the benefit of it and the Jefferson Parish School Board the sum of $1.25 per acre. By Act 405, the Legislature has devised a different method of payment than money by exchanging or swapping the Sixteenth Section Tract for another tract of land for use as school purposes, and has preserved the rights of the Jefferson Parish School Board in the second tract, the same as it had in the first tract. There is no complaint made that the tracts are of unequal value, or that the Jefferson Parish School Board has had its right to share in the proceeds lessened by the provisions of Act 405. It is contended instead that the Act has disposed of the land for another governmental purpose, that this constitutes a sale, and that the respective school boards are entitled to their proportionate cash value of the sale.

In support of this contention, appellant urges to us a number of eases requiring cash payment when land is used for other governmental purposes. Appellant relies most strongly on doctrines expressed in the cases of Lassen v. Arizona, 385 U.S. 458, 87 S.Ct. 584, 17 L.Ed.2d 515 (1967) and the case of Alamo Land & Cattle Company, Inc. v. Arizona, 424 U.S. 295, 96 S.Ct. 910, 47 L.Ed.2d 1 (1976). However in those cases it was proposed simply that the state, being owner of the land, could divert its use to a purpose other than a school purpose without compensation. This is not our situation. Here there are proceeds from the transfer of the land, that is, another tract of land for school purposes, with the obligation of school purposes being shifted from one tract to another better suited for school purposes. The transaction authorized under Act 405 was not a sale, but an exchange, the proceeds of the exchange being the new property acquired. Thus the Act is in keeping with the spirit of the original donation of these lands, that is for public school purposes. Instead of the Orleans Parish School Board being able to use the Sixteenth Section upon which to build a school, in this case the same purposes are accomplished by virtue of dedication of new lands for this public school purpose.

This same proposition, that this is an exchange of lands for governmental purposes, would remove Act 405 from the application of Article 4, Section 12 of the Constitution of 1921 which provides:

* * “The funds, credit, property or things of value of the State, or of any political corporation thereof, shall not be loaned, pledged or granted to or for any person or persons, associations or corporations, public or private; * * * * ”

This prohibition is basically directed against the situation wherein the state may make a donation, gift or other free use of its property for other than governmental purposes, and it is not directed against state agencies or political corporations in the conduct of their legitimate affairs. See LeBlanc v. Police. Jury of Parish of Rapides, 188 So.2d 131 (La.App. 3rd Cir. 1966). If the word “granted” were to be interpreted as prohibiting any exchange or sale of Sixteenth Section school lands, the entire statutory system of their utilization for school purposes would be adversely effected, defeating the purposes for which they were originally granted to the State.

The Supreme Court has held in a case involving similar provisions in a prior constitution, that the prohibition against granting state property does not prohibit the state from changing the destination of particular public property or from intrusting the administration of such property to the municipal corporation within the limits of which it lies. Saucier v. City of New Orleans, 119 La. 179, 43 So. 999 (1907). Similarly, a sale of property discovered unsuitable for governmental purposes of the Board of Commissioners of the Port of New Orleans was held not a “grant” within the provisions of this section of the 1921 Constitution. Board of Com’rs of Port of New Orleans v. New Orleans Public Service, 161 La. 741, 109 So. 408 (1926). See also Op. Atty.Gen. 1926-28, p. 273, wherein it was ruled permissible to exchange tracts of land between Louisiana State University and the state insane asylum for benefit of, and more suitability to use of, each institution.

We hold that the prohibitions of Article IV § 12 do not apply to Act 405 of 1962 and the exchanges of property provided therein.

Finally, Act 405 is challenged in that it is a local or special act in violation of Article IV § 4 and Article IV § 6 of the Constitution of 1921, the first as to its content and the latter as to lack of proper publication.

Primarily, we conclude that the Act is not a local or special act. The Act involves the transfer of certain publicly owned property as expressed briefly in the Act’s title:

“To provide additional means and authority to carry out the purposes of the public park located in the City of New Orleans known as the City Park of New Orleans by transferring title to certain State owned lands within the City Park to the City of New Orleans and providing for the management and control thereof by the New Orleans City Park Improvement Association, an agency of the State; and to provide for the transfer of title to other lands by the City of New Orleans to the Orleans Parish School Board, an agency of the State; repealing all laws or parts of laws in conflict herewith.”

State land is in effect owned by all of the citizens of the State and its sale or transfer affects the rights of all citizens generally, not just the citizens of the particular locality in which the land is situated. Op.Atty. Gen. 1944-46, p. 340; Op.Atty.Gen. 1942-44 p. 702; 82 C.J.S. Statutes § 14b, and cases therein cited. A statute is not a local or special law if it affects persons or things throughout the state, operates on subject in which the people at large are interested, although to some degree it applies only to a particular locality, or is both general and special or private. Kotch v. Board of River Port Pilot Com’rs for Port of New Orleans, 209 La. 737, 25 So.2d 527 (1946), affirmed, 330 U.S. 552, 67 S.Ct. 910, 91 L.Ed. 1093. Local or special laws refer to laws wherein private individuals are seeking some private advantage or advancement for the benefit of private persons or property within a certain locality. State ex rel Grosch v. City of New Orleans, 211 La. 241, 29 So.2d 778 (1947).

We note that the property transferred is not to be used by persons for private advantage but for park and recreational purposes of the public generally to be administered by a state agency. Similarly, the other portion of land concerned is to be used for public school purposes within the intent of the Sixteenth Section laws. We refer to the following cases which would seem to involve particular plots of ground and particular governmental use wherein the concerned statute was held not to be special or local and are persuasive in this case. Knapp v. Jefferson-Plaguemines Drainage District, 224 La. 105, 68 So.2d 774 (1953); Benedict v. City of New Orleans, 115 La. 645, 39 So. 792 (1905); Saucier v. City of New Orleans, 119 La. 179, 43 So. 999 (1907). Since we hold Act 405 of 1962 not to be a local or special act the prohibitions of Article IV § 4 and § 6 are not applicable.

For the reason above assigned, we see no prohibition against the enactment of Act 405 of 1962, nor any violation of constitutional provisions which may render it invalid. Accordingly, we affirm the judgment of the trial court.

AFFIRMED


author: REDMANN, Judge.

text:
    Janis Roy CAROLLO et al. v. Barbara WILSON and New Orleans Public Service, Inc.
    No. 7696.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 27, 1977.
    Rehearing Denied May 17, 1977.

      Richard A. Tonry, Tonry & Mumphrey, Chalmette, for Janis Roy Carollo, et al.
    A. R. Christovich, Jr., New Orleans, for Barbara Wilson and New Orleans Public Service, Inc.
    James H. Drury, Drury, Lozes & Curry, New Orleans, for Commercial Union Ins. Co., intervenor.
    Before REDMANN, GULOTTA and BOUTALL, JJ.
   REDMANN, Judge.

Defendants appeal on both liability and quantum from a judgment on jury verdict for personal injuries and property damages in an omnibus-automobile intersectional collision.

LIABILITY

Defendants’ contrary evidence from independent witnesses could have supported a contrary conclusion on liability. We nevertheless find that the jury’s conclusion on liability is sufficiently supported by evidence that defendant bus driver drove (at a speed of about 20 mph) through a red light which had been red during about the last half block of her travel towards the intersection. The testimony of one independent witness who resided at the intersection is perhaps the most consistent and supportive (although his estimate of the bus’s speed is higher than most witnesses’). His testimony is deemed suspect by defendants, both because he was not discovered as a witness until 15 months after the accident (the weekend before trial) and because he testified that he said to himself, as he saw the bus approaching a half block away as its light turned red, “I bet this bus runs the light.” That neither plaintiff nor defense counsel earlier discovered an eye-witness who lives above a shop at the corner of a serious intersectional collision does not make the witness suspect, much less justify rejecting his testimony. Nor does the witness’s remark that, before the bus ran the red light, he would have bet it would do so. This remark but reported a common experience of recognizing that a driver is failing to make appropriate initial response to some stimulus, such as the changing traffic light here, from which failure one infers that the driver has not perceived the stimulus and will not react at all.

QUANTUM

General Observations

In reviewing general damage awards, a court of appeal finds itself in a dilemma. On the one hand, because the scope of our appellate review includes facts, La.Const.1974, art. 5 § 10(B), we are obliged on an appellant’s request to determine the appropriateness of the amount of damages awarded for the injuries suffered. See Coco v. Winston Industries, Inc., La.1976, 341 So.2d 332. On the other hand, because the lower court has by law “much discretion” in fixing quantum of general damages, La.C.C. 1934(3), we are frequently reminded by the Supreme Court that we may not merely substitute our opinion of appropriate quantum for that of the trier of fact, see Coco, supra: to which admonition Coco now adds, obiter dictum, that after finding a clear abuse of the “much discretion” of the trial court we can disturb an award “only to the extent of lowering it (or raising it) to the highest (or lowest) point which is reasonably within the discretion afforded that court.” 341 So.2d at 335.

Coco, even so, points out that the question whether the much discretion has been abused is “a judgment call,” id. at 335.

Our judgment is that the much discretion has here been abused in the three quanta appealed. Upon our review of the record we reach an opinion of what the maximum quantum should be and we compare the jury award. We have found the awards far exceed our estimate of the maxima — by multiples, rather than minor amounts or percentages explainable by the natural differences among reasonable evaluators.

We therefore reduce the three quanta appealed, confessing doubt as to our understanding of Coco’s obiter dictum which would limit our reduction to the “highest” point of the trial court’s discretion. For example, we reduce a $500,000 award to $80,000 (with some question whether that is still too generous) — an amount which we believe approximates the highest .award that is “reasonably within the discretion” of the trial court. Yet, had the trial court awarded $81,000, we admit we would probably not have reduced. Why not, then, acknowledge that $81,000 is “within the discretion” and award it? Or $82,000? And what of $85,000? Can we pretend that when $80,000 is acceptable for general damages, $90,000 is not? Or $100,000? If $100,-000, why not $125,000?

We conclude that Coco’s dictum must be interpreted to require us to do no more than approximate the limits which we deem overstepped by the trial court. That is what we now do in considering the quanta individually, although in two of the three we find errors which might justify ignoring the jury’s quantum rather than merely treating it as excessive.

Janis Caroilo

Perhaps most evidently excessive is the $500,000 for Mrs Carollo’s bad but surgically revised facial burn and other facial scarring, a compression fracture of a vertebra, and other injuries.

The third-degree burn on Mrs. Carollo’s left cheek came from a light bulb from her automobile’s instrument panel. The burn was four or five centimeters in diameter and took three months to cover itself with scar tissue without skin graft. Five months thereafter plastic surgery excised that principal scar and other scarring from lacerations in the area of left cheek ahd temple. The excision removed an area ten centimeters long and four centimeters wide (at its widest), and left a fairly regular thin-line scar. To the casual observer this thin scar is not very noticeable and — as the plastic surgeon observed — “professional cosmetic help” would make the scar less visible. An important related item of damage is an estimated five per cent permanent paralysis of the left facial muscles.

The compression fracture of Mrs. Carol-lo’s fifth cervical vertebra was treated by traction and then “four-poster” brace until six weeks post-accident and thereafter by soft cervical collar for seven weeks. The injury which caused the fracture also caused some arthritic change from which Mrs. Caroilo experiences at times a burning sensation in her neck.

Counsel’s repeated references in argument to the jury to five broken ribs and 400 sutures are unsupported. The medical testimony and the hospital records give no hint that any rib was broken (except that one doctor agrees that Mrs. Caroilo said she had five broken ribs) and makes no reference to sutures except to note that a deep facial laceration was sutured. Mrs. Carollo’s testimony that she had five broken ribs is obviously hearsay (perhaps double hearsay from her husband, who testified that he was told she had five broken ribs) and the failure of the hospital records to mention broken ribs suggests that this hearsay was erroneous. Similarly her testimony of 400 sutures is presumably hearsay of undisclosed source.

Mrs. Caroilo did have other injuries, among which was one to the pericardium evidenced by a “friction rub” which lasted several days although electrocardiograms and chest x-rays were normal.

We conclude that the maximum award for the proven injuries of Mrs. Caroilo would approximate $80,000, to which we reduce her award.

Scott Caroilo

Scott was four years old at the time of the accident. He had impaired hearing, for which he wore a hearing aid. While Scott had some facial laceration on the left side leaving minimal scarring, his most serious physical injury in the accident was a bilateral basilar skull fracture, which healed without incident or residual problem. Perhaps more frightening to young Scott was awakening in a strange hospital, without his hearing aid, and not understanding his circumstances.

The jury’s $20,000 award exceeds even the “much discretion” of C.C. 1934(3). We conclude $10,000 approximates the maximum award for Scott, and we reduce his award to that sum.

Charles Carollo

Charles Carollo, seven years old at the time, was grievously hurt in the accident and suffers profound residual injury. We will not describe his many comparatively minor injuries, although we keep them in mind in evaluating quantum.

The gross injury to Charles was to his brain stem. This injury produced a two-month coma (requiring tracheotomy and catheters), permanent reduction of intellectual power, alteration of personality, virtually complete disability of his left arm and 70% disability of his left leg.

The coma was attended with typical complications, including infections and severe weight loss. Charles’s comatose state, however, spared him pain and suffering; so he should be compensated, in respect to the coma considered by itself, principally for the loss of two months of his conscious existence.

The reduction in intellectual ability, defendant argues, was unsatisfactorily proven. The evidence includes both some pre-accident evaluations from school sources and post-accident evaluation by a psychologist. From the evidence the jury could reasonably conclude that Charles changed from a child of bright normal intelligence to one of “dull-normal” Wechsler IQ range of 79-81.

The personality change, from retiring to aggressive, is similarly supported by the evidence. Some might deem an outgoing personality more attractive than a shy one, but aggressiveness can be an undesirable trait and both psychiatrist and psychologist deem the change a matter for concern.

The lower left arm and hand remain in a formed-plastic splint to prevent the hand’s clawing and to provide a modicum of usability to the arm. Disability of the arm is rated at 100%.

The left leg is only usable because of a brace which enables a limping walk. Disability is 70%.

Plaintiff attempted to show, as special damage, the loss of Charles’s earning capacity. A psychologist opined that Charles’s employment possibilities had been reduced to jobs like gateman or washroom attendant because of his physical and mental limitations. An economist compared the $2.30 hourly minimum-wage pay for such jobs with the $188 average weekly pay for manufacturing jobs in Louisiana, and testified that for then nine-year-old Charles, the trial-time values (discounted at 5%) of earnings over 43.4 years work-life expectancy (with increases of 7% compounded annually) are $303,782.05 and $620,772.24, respectively (indicating a loss in earnings of $316,-990.19, although this figure was never testified to).

The economist’s testimony appears, on its face, to be inconsistent in respect to three important premises, namely (1) that, over as long a period as the 43.4-year work-life expectancy of an 18-year-old, inflation’s rate is 4% compounded annually (meaning that in 43.4 years inflation would raise average prices to 527% of base) and that ordinary wages over the same period increase an additional 3% compounded annually because of productivity (bringing wages to 1761% of base); (2) that an 18-year-old on his first manufacturing job would earn the average manufacturing wage, and (3) that the federal minimum wage will increase 3% compounded yearly as a premium for productivity (in addition to 4% compounded yearly to keep pace with inflation) over the 43.4-year work-life expectancy of Charles Carollo.

If premise (1) is correct, then premise (2) is not. If wage-earners receive premium pay for productivity resulting from experience, then a worker with experience gets higher pay than a beginning 18-year-old, and a worker with 40 years of experience gets higher pay than one with 20 years of experience. The average pay in any given craft or trade must go to workers with more or less average experience, and not to the 18-year-old novice. If the novice gets average pay, who would get the lower-than-average pay that must exist to offset the higher pay of the long-experienced worker in order to have an average? If the 18- and the 60-year-old are paid the same — all getting average pay (differences existing only from one craft to another) — then the premise that productivity raises average wages 3% compounded annually is wrong, and the postulated total increase of 7% compounded annually would be due in no part to productivity but exclusively to inflation (which the economist testified is only 4%).

Furthermore, if premise (1) is correct, then premise (3) is not. If 3% of the postulated 7% annual wage increase is due to productivity, then the minimum wage would presumably not get that 3% but remain a minimum (increased only for inflation) for those unfortunate workers whose productivity does not increase with experience — or who have as yet no experience.

Yet the economist expressed as a factual premise that the 3% increase for productivity “has prevailed since 1940 in the United States as an average.” Thus we incline towards rejecting premises (2) and (3).

In addition to the problem of reviewing the jury award of $1,000,000 in the light of the inconsistent testimony of the economist, a serious difficulty exists in that plaintiff repetitively argued to the jury that the present value of Charles’s lost wages was $620,000, when that figure ($620,772.24) supposedly represents the present value of the life earnings of an 18-year-old starting nine years post-trial at the average manufacturing wage and earning it until age 61.4 increased by 7% compounded annually. That argument is insupportable on plaintiff’s own evidence that Charles will be able to earn the minimum wage and therefore has not lost all earning power. .

We would therefore undertake to calculate Charles’s lost earnings using the factual evidence given by the economist. But we cannot approximate what Charles’s earnings as a manufacturing worker would have been because we have insufficient information to approximate an average starting wage. The average weekly wage (of all Louisiana manufacturing workers) as of January 1975 was $188, the economist testified. However, the worker who had then worked 43 years would, by hypothesis [premise (1)], be earning 1.0742 (or 17.14) times as much as he earned in his first year, since inflation would have increased his pay by 4% and productivity by 3% compounded annually. On the other hand, the 18-year-old’s starting wage is the equivalent of the base pay of 43 years earlier raised for inflation alone 4% compounded annually over 43 years, to 1.0442 or 5.19 times the starting ■ pay of 43 years ago. Thus in 1975 the two extremes of pay are 17.14 and 5.19 times the starting pay of 43 years earlier, and, more important for our calculations, the average oldest worker gets 3.3 times the average pay of the youngest. But what the $188 overall “average” represents we cannot say. (If the wages were spread uniformly between a base and 3.3 times that base, the “average” would be 1.65 times base and the lowest — presumably that of the beginning 18-year-old — would be 60.6% of the average. According to this reasoning a beginner in 1975 would earn 60.6% of $188 or $113.94 a week, or $21.94 more than the $92 minimum wage. The present value of the life-long earnings loss, using the economist’s figures including 7% annual increases and discounting at 5%, would be only $90,011.)

The best approximation we can make relies on the $188 overall average manufacturing wage to include the 3% productivity raises of all the workers, and therefore allows only a 4% annual increase (the increase attributable to inflation). This approximation assumes that the 18-year-old earns less than the $188 average to start, but gets regular increases for productivity (ignoring inflation for the moment), so that by the end of his career he earns more than the $188 average: and that his own average pay (ignoring inflation) approximates that $188 average. Thus that $188 average already includes productivity increases, and we need adjust only for inflation, at 4% compounded annually. (This approximation is flawed in that the 3% productivity raise already present in an “average” wage was 3% of the lower wages of previous years, while the premise is that future wages will be 4% higher annually than those of previous years. We will make a rough allowance upward to compensate for this flaw.) On this basis the total earnings of an uninjured Charles Carollo as a manufacturing worker from age 18 in 1984 until retirement at age 61.4 would have a trial-time value of approximately $320,071 when discounted at 5%.

Charles’s disability limits him, the employment specialist (psychologist) testified, to minimum wage. Rejecting the economist’s theory that minimum wage increases for productivity, we limit the minimum wage’s increase to 4% for inflation. We conclude that the trial-time value of the total minimum-wage earnings of the injured Charles Carollo would approximate $156,631 (rather than the economist’s figure of $303,782.05).

We would accordingly approximate Charles’s loss at $164,440 but, to compensate roughly for our error proceeding from use of the $188 average wage as including the full amount of the 3% productivity increases, we estimate his maximum lost earnings from the evidence to be about $200,000 (rather than the $316,990.19 that the economist would calculate by allowing, in addition to 4% inflation, both the 3% productivity and the overall average wage which already includes productivity increases).

We note again that counsel argued to the jury, without foundation in the evidence, that Charles’s lost earnings were $620,000. We also note counsel’s argument for general damages based on units of time ranging from $1 a minute for the comatose period to a cent or so a minute for the bulk of his life. We believe this is not the case to rule on the propriety of unit-of-time argument to the jury, although this argument’s mathematical conclusion in the millions of dollars (not even discounted for the time on which they are based) may be an explanation for the excessive verdict.

We must view the jury’s quantum of $1,000,000 as awarding about $800,000 for general damages or as grossly overcompensating for lost earnings, perhaps by adopting plaintiff counsel’s confused view that plaintiff’s economist fixed them at $620,000, while allowing some $400,000 for general damages. In either case a substantial reduction is in order.

Money as a “repair,” C.C. 2315, of fault-caused general damages is difficult to understand. Charles Carollo’s damaged brain, personality, leg and arm cannot be repaired; his damaged life cannot be restored to its former promise. No amount of money can actually repair his nigh-useless left arm, or undo the pain he has suffered and will suffer. In a sense, we cannot speak in rational terms in relating physical injury itself to a monetary award as excessive or inadequate. Dolor and dollar are not commensurate: misery is not measurable in money at all, so one can never say the number of units is disproportionately high or low. By this reasoning, however, the jury could as well award a billion (or a hundred) as a million dollars.

In another sense, we not only can but must say that general damages do have limits, that some imprecise and indefinable relationship exists between the pain one has caused and the payment one should make in reparation. If money is at any time to be awarded to “repair” pain and suffering, no one would suggest an award so small as $100 to make reparation or amends for the dire injuries Charles Carollo has suffered. At the other extreme, we suppose no one would deem a billion dollars appropriate.

Our evaluation of the general damages proven convinces us that $200,000 approximates the maximum reasonably within the trial court’s much discretion. The jury’s allowance of about $400,000 to $800,000 is two to four times that maximum. We conclude that the jury has palpably abused its discretion and we reduce the total award for Charles to $400,000.

OTHER MATTERS

Defendants argue it was error to allow Charles Carollo to testify that his mother had the green light, in view of his damaged mental condition. We respond that credibility is a matter for the jury, and that the substance of this argument could properly have been argued to the jury. The trial judge did not err in this particular.

Defendants also argue that a new trial should have been granted because the investigating police officer was allegedly prejudiced against defendant. Since defendants had the information supportive of that allegation prior to trial, they were not entitled of right to a new trial under C.C.P. 1972(2), and we find no abuse of discretion in the trial judge’s refusal. Our view is similar towards defendants’ complaint that the jury foreman had filed a complaint against defendant employer with the Equal Employment Opportunity Commission.

Defendants also complain of the behavior of one juror’s husband, who had some brief discussion with two other jurors. The husband stayed at the trial its last day because his wife had developed a rash which might have required him to take her to the doctor. The wife had told the trial judge of her problem early that morning. The judge interrogated the husband under oath and satisfied himself that there had been no discussion of this case. We conclude that the trial judge handled the matter correctly, and that no mistrial should have been declared.

DECREE

The judgment is amended to reduce the award for Janis Carollo to $80,000, that for Scott to $10,000, and that for Charles to $400,000. Plaintiffs are to pay the costs of appeal.

      . We are uncertain that we correctly describe these figures. Our calculations of present values discounted at 5% for the minimum-wage ($2.30 hr. X 40 hrs. X 52 weeks = $4,784/year) and the manufacturing wage ($188/week X 52 weeks = $9,776/year), assuming an annual 7% increase, with employment beginning nine years hence (i. e., after trial time) and lasting 43.4 years, are $377,441 and $771,292 respectively. We used $10,000 a year as the 1975 wage in order to be able to multiply our results by .9776 for the $9,776 manufacturing wage or by .4784 for the $4784 minimum wage. In the 53 years from trial time until Charles reached 61.4 years, the $10,000 wage would have increased to $337,253.48 as his last year’s wage, although he would only work four tenths of a year at that salary, thus earning only $134,901.39. An initial investment in 1975 of $788,965 at 5% compounded annually would allow withdrawal in 1984 of $18,384.59 (to which a 7% annual increase would bring 1975’s $10,000 wage) and in each year thereafter an amount equivalent to wages increased 7% annually until the year 2027, at which time $134,911.40 would remain in the investment account to pay the $134,901.39. Thus $788,965 invested at 5% in 1975 would pay Charles for the equivalent of a $10,000 wage increased 7% compounded annually during his 43.4-year work life beginning in 1984. For a similar present value for the minimum wage of $4,784 we multiply the $788,965 by .4784 ($4,784/$10,000); for the $9,776 manufacturing wage we multiply by .9776.
      We recognize that nice mathematics is not required of a trier of fact in evaluating loss of future earnings, and that our supreme court has cautioned that future losses cannot be calculated with mathematical certainty, McFarland v. Illinois Central R. Co., 1961, 241 La. 15, 127 So.2d 183. However, mathematics was the guide used by plaintiff here and there can be no objection to the use of mathematical verities in estimating loss.

      . An investment in 1975 of $327,405 at 5% compounded annually will grow by 1984 to $507,912.61, which would allow the withdrawal of $14,233.11 for 1984 as a first working-year’s wage equivalent (the equivalent of a 1975 wage of $10,000 per year increased by 4% annually) leaving $493,679.50 to remain invested at 5%. That fund so invested would enable the withdrawal each year of the same wage increased 4% annually until the year 2027, when its remainder would amount almost exactly to the $30,746.35 needed to pay the last four tenths of ■a year’s wages (the year’s wages by then having increased to $76,865.88).
      The 1975 minimum wage of $2.30 an hour, or $4,784 a year, requires an initial investment of 47.84% of that $327,405; the 1975 manufacturing wage of $188 a week, or $9,776 a year, requires 97.76% of that $327,405.


author: BERT H. JONES,

text:
    Bytista Noal O’NEAL v. Stella Rogers O’Neal WARDEN.
    No. 49299.
    Supreme Court of Mississippi.
    April 27, 1977.
    William A. Pate, Gulfport, for appellant.
    Parsons & Matthews, Thomas M. Matthews, Jr., Wiggins, for appellee.
    Before GILLESPIE, C. J., SMITH and WALKER, JJ., and JONES, Commissioner.
   BERT H. JONES,

Commissioner for the Court:

Stella Warden petitioned the Chancery Court of Harrison County for modification of a divorce decree which granted custody of two minor children to her former husband, Noal O’Neal. The chancellor, relying partly on a report submitted by the welfare department, found for the petitioner. O’Neal appeals.

The parties to this cause were formerly husband and wife. They were married May 29, 1965. To their marriage was born two children, Carolyn Jeannine O’Neal born November 14, 1965 and Mark Anthony O’Neal born September 11, 1967. The parties separated on November 10,1968. The appellant filed suit for divorce and custody of the children in the Chancery Court of Harrison County, Mississippi. At the time the bill was filed the oldest child was 3 years of age and the youngest was 14 months of age. The bill for divorce charged the appellee with adultery and also alleged that appellee had deserted the appellant and their children, but sought divorce on the ground of cruel and inhuman treatment. The appel-lee executed a waiver to the bill and personally approved as to form the decree which granted the appellant a divorce and custody of the children subject to the right of appel-lee to visit the children at all reasonable times. The divorce decree is dated March 19, 1969.

After the decree the children lived with appellant in his trailer for five and one half years. The appellant was both mother and father to the children. He bathed them, cooked for them, washed and ironed their clothes, took them to Sunday School and Church and supervised their school attendance when they reached school age. The appellant is an iron worker and has to leave for his work at 6:00 a.m. The appellant testified that he awakened the children not earlier than 5:30 a.m., fed them breakfast and got them ready for school. The children customarily caught the school bus in front of the trailer at 6:50 a.m., appellant’s hours of employment are from 7:00 a.m. to 3:30 p.m. He testified that he gets home between 4:15 and 4:30 p.m. Appellant has another trailer that is connected to his home trailer by means of a breeze-way. Up until July 1974 his parents lived in the second trailer and looked after the children at such times as appellant was not at home. After his parents moved out a couple named Beverly moved into the adjoining trailer and helped appellant with the children until he became dissatisfied with them. At the time of the trial appellant’s uncle and his 79 year old grandmother, who lived close by, were helping him with the children. It is revealed in the briefs of both counsel for appellant and counsel for appel-lee that subsequent to the trial appellant had married again.

In 1969 appellee married Johnny Finley. Part of the time she and Finley lived in Detroit, Michigan. Finley was a member of a motorcycle gang and appellee toured the country with him for a period of several months. Her marriage to Finley lasted four years. They were separated twice, the last separation being in October 1972. They were divorced in April 1973. In January 1973 while still married to Finley, ap-pellee started to live with a man by the name of Ladner and lived with him for four months. In August 1973 appellee met her present husband, Frank Warden. Frank Warden was married. Appellee started to work in New Orleans as a waitress. Warden visited her in New Orleans and also ■when she came home to Wiggins, Mississippi on weekends. Appellee testified Warden helped her. In August 1974 Warden obtained a divorce. About the same time appellee quit her job in New Orleans and returned to Wiggins. She and Warden were married September 3, 1974. On September 20, 1974 appellee filed her petition to modify the 1969 decree and grant her custody of the children. In her petition, appellee alleged that at the time of the 1969 divorce she “. . . was not living a life that was conducive to the rearing of children, and in fact was using alcoholic beverages and running around with people and would have neglected the children had she been awarded the children”. She alleged, however, that she had repented and for the past two years she lead a life that would make her a fit and proper mother. On the trial, appellee testified that she and Warden were living in a three bedroom trailer; that she was not working and that she thought she was in a position to spend more time with the children than could the appellant. Appellee admitted that she had no complaint of the manner in which the appellant had taken care of the children. In fact, she stated she thought appellant had done a fantastic job. She testified that the children were with her for 10 days during the 1973 Christmas Holidays and for two weeks during the summer of 1974.

The hearing in the court below was held on December 9, 1974. On January 7, 1975 the court entered a decree in which it found that each of the parties were fit, suitable and proper parties to have the care and custody of the children. The decree directed that the Welfare Department of Stone County should at its leisure and some time before the end of the school year make an investigation of the conditions that would affect the comfort, convenience and custody of the children and report the same to the court in a sealed envelope and in a confidential manner for the use of the court in further determining custody in the matter at a later date. The decree provided that the children should remain with the appellant until the end of the school year subject to the appellee having them each weekend beginning each Friday afternoon when they were dismissed from school and ending with her placing the children back in school on the following Monday morning.

On October 1, 1975, without any further proceedings having been had in the case, the court entered another decree which recited that the court had previously entered a temporary order until a report from the welfare department had been received and recited that the report had been received. The decree then proceeded to find that the paramount custody of the children should be vested in the appellee subject to visitation with the appellant on the second and fourth weekends of each month beginning Friday afternoon after school and ending with the following Sunday at 5:00 p.m. The decree also granted the appellant custody of the children during the summer months when school was not in session, subject to appellee having them on the second and fourth weekends of each month from 4:00 p.m. on Friday to 5:00 p.m. on Sunday. The decree also alternated and divided the custody of the children during the Thanksgiving, Christmas, and other holidays. The appellant was directed to pay appellee $30.00 per week for the support of the children except during the summer months when the children were in his custody.

The decree recites that the facts recited in open court and found and reported by the welfare department showed a material change in circumstances and that it would be to the best interest of the children for their custody to be vested as provided in the decree. From this decree, appellant has appealed to this Court.

Appellant assigns as error that no material changes in facts and circumstances had occurred which would justify modification of the 1969 decree. He also assigns as error the action of the trial court in relying upon the report of the welfare department.

We are of the opinion that each of the errors assigned by the appellant is well taken.

This Court has repeatedly held that when a decree has been entered and has become final which awards custody of a child to one parent that it cannot be materially modified or altered unless subsequent thereto there has been a material change of circumstances and then only after a finding based on substantial evidence that such change of circumstances materially affects the children’s welfare adversely. Sistrunk v. Sistrunk, 245 So.2d 845 (Miss.1971); Sanderson v. Seaney, 224 So.2d 862 (Miss.1969); Brocato v. Walker, 220 So.2d 340 (Miss.1969).

We are of the opinion that there are no material changes in the facts and circumstances upon which a material modification of the 1969 decree can be based. Appellee admits that she was not a fit person to have the custody of the children when the 1969 decree was granted, but contends for the two years preceding the date she filed her petition for modification that she had repented. For at least one year of this two year period of repentance, appellee was keeping company with a married man. She married her present husband on September 3, 1974, and filed her petition for modification on September 20, 1974. She contends the fact that she now has a new husband and lives in a three bedroom trailer and does not have to work are sufficient changes to justify modification of the decree. We cannot agree. Based on a consideration of the past record of appellee’s instability, the time element is simply too short to say with certainty she has changed her ways. It has been wisely stated that when predicting the probability of behavior of parties there is no more accurate guide than considering their past behavior. Appellee willingly relinquished custody of the children to appellant in 1968 when one child was 3 years of age and the other only 14 months of age. At this time in their lives the children were in desperate need of a good mother’s love, attention and care. For five and a half years appellee showed little concern for the children’s welfare. During all of that period the appellant was an attentive, loving and devoted father to the children. To now take the primary custody from him and vest it in the mother does not, in our opinion, meet the requirements of simple justice.

We are of the opinion that based on the facts of this record that it was error for the chancellor to base his decree in part on the report of the welfare department. Counsel for appellee contends in his brief that when the testimony in this case was concluded on December 9, 1974 that the chancellor and the attorneys for each party retired to chambers and that it was there agreed that a report from the welfare department would be requested and submitted to the court. No such agreement appears in the record of this case. In our consideration of this case we are confined to the record. The appellee had the burden of proof on the trial of this case in the court below. If she was relying on any such agreement it was her duty to see that it was incorporated into the record and to see that the report was incorporated therein.

Griffith, Mississippi Chancery Practice, Section 675 (2d ed. 1950), at page 744 provides, in part:

An appeal in the supreme court must be considered solely on the record made in the trial. The appellate court is confined to the face of the record in the trial court, and a case cannot be heard on a different record than that made in the court below, duly certified. It cannot accept affidavits, or statements, or even evidence as to any facts not a part of the trial record and not before the trial court;

We do not say that in no case may the court in a case such as this under given circumstances request and rely upon a report of a welfare department. We simply say under the facts of this case it was error for the court to rely upon the report.

For the reasons assigned above this case should be reversed and the former decree awarding custody of the children to appellant reinstated in its entirety.

REVERSED AND RENDERED.

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

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


author: LEE, Justice,

text:
    Theopha BERRY v. STATE of Mississippi.
    No. 49658.
    Supreme Court of Mississippi.
    April 27, 1977.
    Rehearing Denied May 25, 1977.

      F. Kent Stribling, Jackson, for appellant.
    A. F. Summer, Atty. Gen. by Karen Gil-foy, Asst. Atty. Gen., Jackson, for appellee.
    Before INZER, SUGG and LEE, JJ.
   LEE, Justice,

for the Court:

Theopha Berry was indicted in the Circuit Court of Hinds County for attempted armed robbery; he was indigent and the court appointed an attorney for him. Berry was convicted, he appealed to the Mississippi Supreme Court, and the case was affirmed. Berry v. State, 288 So.2d 457 (Miss.1974). Subsequently, he applied for a writ of error coram nobis in this Court, the petition was heard before Circuit Judge Russel Moore and was denied. From that judgment he again appeals to this Court.

Appellant contends that his constitutional rights were violated in that he was represented by ineffective counsel in the trial of his case.

On the night of September 28,1972, after an extended drinking bout with friends, appellant went to Joe’s Package Store in the City of Jackson, told its proprietor that he wanted some whiskey, then pulled out a pistol, pointed it toward J. P. Murphy, who stood behind the cash register, and told him “This is a stickup.” Lawrence Anderson, an employee of the store, was behind the counter, he told appellant that there were police outside, and when appellant turned his head to look, Anderson dropped down behind the counter and got a pistol. Berry shot at Anderson, who returned the fire. Several shots were exchanged by them and one bullet from Anderson’s gun hit appellant in the abdomen. Thereupon, he fled the scene. Later, he was taken to University Hospital by a friend, where the bullet was removed from his body and was delivered to a police investigator. It was identified as having been fired from the Anderson gun.

Appellant’s counsel had been practicing law five (5) months at the time of his appointment to represent appellant. He had tried civil cases, but had not tried a criminal case. Appellant argues that his counsel was ineffective in the following respects:

(1) He declined to request a special ve-nire for the case. However, there were thirty-six(36) jurors present in the courtroom from the regular panel, and they were thoroughly voir dired. It is not unusual or uncommon in many jurisdictions for attorneys not to request a special venire where there are a sufficient number of regular jurors on the panel.

(2) He failed to file a motion and secure an order for discovery. The record shows that this was not necessary, since the police voluntarily turned over their entire file to counsel, including all the physical and documentary evidence. The trial judge also made the statement that in the Hinds County jurisdiction, many times the court orally instructs the district attorney and police investigators to turn over all the investigation files and materials to the defendant’s attorney.

(3) He failed to file a motion to suppress an oral confession given to the police sergeant. Appellant defended the case on the theory that he was so intoxicated he could not form an intent to commit robbery. At the trial, he testified to practically the same facts related in his statement to the police. He testified that he was drunk when he entered the store. In his oral statement, he said that he had been drinking. Counsel explained that he did not object to the oral statement for the reason that he did not wish to emphasize the testimony of the police officer.

(4) He failed to make any objections during the entire trial. The issue was simple — ■ whether appellant was too drunk to form an intent to commit robbery. It is not indicated from the record that objections to procedures during the trial would have rendered appellant any help or comfort.

(5) He failed to poll the jury on its verdict. The case presented by the State overwhelmingly proved the guilt of appellant. It was discretionary to have the jury polled. In many jurisdictions, competent and experienced attorneys do not ask for the jury to be polled.

(6) He elicited from appellant the fact that he had been arrested on two other occasions. Appellant’s attorney asked him whether he had ever been arrested, and he answered, “Two times.” He said that one time was for buying a teenager beer and the other was for running into a telephone pole. Trial tactics of the attorney probably were to show that appellant had no record and had never been arrested for any serious offenses, but only for two insignificant matters.

(7) He failed to request the court to allow appellant to be heard before imposing sentence. While the record here is without the judgment and sentence, it is a matter of common practice for all circuit judges to ask the defendant and his attorney whether they have anything to say before sentence is pronounced. Allocution is not a matter of right.

The defendant in a criminal case does not have a right to a perfect trial or to the best counsel. He is entitled to a fair trial and to effective counsel.

In Stewart v. State, 229 So.2d 53 (Miss.1969), the Court said:

“We agree with the sentiment expressed by the court in MacKenna v. Ellis, 280 F.2d 592 at 599 (U.S. 5th Cir. 1960), wherein the court said:
‘We interpret the right to counsel as the right to effective counsel. We interpret counsel to mean not errorless counsel, and not counsel judged ineffective by hindsight, but counsel reasonably likely to render and rendering reasonably effective assistance. We consider undivided loyalty of appointed counsel to client as essential to due process.’ ” 229 So.2d at 56.

This Court, in Parham v. State, 229 So.2d 582 (Miss.1969), cited the following from Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932):

“[Appointed counsel is required to provide active and zealous representation rather than engage in a pro forma exercise which is not according legal representation in any substantial sense. (287 U.S. at 58, 53 S.Ct. 55).
The rule in Powell, however, does not mean that the method of procedure used by one attorney is to be judged by the ‘hindsight and method another attorney might have used’ under similar circumstances. Nor is ‘inadequacy of counsel’ to be determined by whether or not the case was won or lost. It does mean representation so lacking in competence that it becomes apparent or should be apparent that it is the duty of the trial judge to correct it so as to prevent a mockery of justice. Commonwealth ex rel. Crosby v. Bundle, 415 Pa. 81, 202 A.2d 299 (1964); Williams v. Beto, 354 F.2d 698 (5th Cir.1965); 24 A.L.R. 1025 (1923); 74 A.L.R.2d 1390 (1960).” 229 So.2d at 583-584.

Appropriate language applicable to this case was used in Rogers v. State, 307 So.2d 551 (Miss.1976):

“It is easy to be a Monday morning quarterback, and in retrospect to pick out defects and flaws in the way the game was played the preceding Saturday. The same is true in analyzing trial tactics and strategy of trial counsel, after the trial is over and the verdict in. We all have 20/20 vision in hindsight; the difficulty is in having 20/20 vision in foresight.” 307 So.2d at 552.

Appellant’s counsel was industrious in the investigation and preparation of his defense. He was zealous and aggressive in the trial of the case, and he adequately presented the only defense appellant had. The effectiveness of an attorney’s work and trial procedure in a criminal case is not determined or measured by whether the verdict is “guilty” or “not guilty.” We think that appellant had competent and effective counsel in the trial of his case, and that he received a fair trial. His contention that his constitutional rights were violated because of ineffective counsel is without merit. The judgment of the lower court, therefore, is affirmed.

AFFIRMED.

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