author: SAMUEL, Judge.

text:
    Myrtle Baptiste Darensbourg, wife of/and William DARENSBOURG v. Michael TERRANOVA and Joseph Terranova, d/b/a Terranova Food Store and Commercial Union Assurance Company.
    No. 9248.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 13, 1978.

      Michael H. Piper, III, New Orleans, for plaintiff s-appellees.
    Montgomery, Barnett, Brown & Read, Charles A. Boggs and James B. Irwin, New Orleans, for defendants-appellants.
    Before SAMUEL, REDMANN and STOULIG, JJ.
   SAMUEL, Judge.

Plaintiffs, Myrtle Baptiste Darensbourg and her husband, William Darensbourg, filed suit against defendants, Michael Ter-ranova and Joseph Terranova, d/b/a Terra-nova Food Store, and Commercial Union Assurance Company, their liability insurer, to recover damages for a contusion in the lumbo sacral area together with a possible chip fracture of the sacral sustained by Mrs. Darensbourg when she slipped and fell on a foreign substance while shopping at defendants’ food store. Her claim is for general damages resulting from her injuries. Mr. Darensbourg claims the medical expenses in the amount of $237.

Defendants answered, denied any fault or negligence on their part, and affirmatively alleged plaintiff’s injuries were caused solely by her own negligence.

After a trial on the merits, the trial court rendered judgment in favor of plaintiffs for $4,237 ($4,000 to Mrs. Darensbourg and $237 to her husband). Defendants have appealed from this judgment.

In slip and fall cases Louisiana law is clear that once a plaintiff establishes he slipped and fell on a foreign substance in defendants’ retail store, the burden shifts to the owners of the store to exculpate themselves from the presumption that they were negligent. The record leaves little doubt plaintiff fell on a foreign substance in defendants’ store, and the only issue presented in this appeal is whether the defendants met the burden imposed upon them by law to exculpate themselves from the presumption of negligence. A determination of this issue involves only questions of fact.

Mrs. Darensbourg testified she entered the store on September 9, 1975 to purchase tomatoes. She stated she was proceeding up the produce aisle when she slipped and fell on a green substance, which she could not positively identify. She indicated it could have been a green slimy substance or some mustard greens. However, she stated unequivocally she did not go to the store to buy mustard greens, she had not yet reached the tomatoes in the produce counter when she fell, and she had not picked up anything on the produce counter before her fall.

One of defendants’ witnesses stated plaintiff picked up mustard greens before she fell, shook them, and implied strongly she fell on the leaves which she shook from the mustard greens. There is some conflict internally between the witnesses offered by the defendants regarding the presence of one of the owners and regarding the direction taken by plaintiff as she entered the store. The trial judge referred to this conflict specifically as part of his reason for finding in favor of plaintiff.

In addition, a stock boy who supposedly witnessed the fall was not produced at the trial, nor was his absence satisfactorily explained.

Finally, the testimony of the witnesses for the defendants is lacking with regard to establishing proof of proper maintenance procedures to exculpate defendants from the presumption of negligence. Defendants’ evidence was that the store was swept three or four times a day, but there was no established schedule for sweeping or cleaning, no one was assigned to supervise the cleaning or inspect the aisles, and no regular employees were on hand to perform the cleaning procedures on the day plaintiff fell.

The butcher employed by defendant testified that on the day in question the floor had been swept twenty minutes prior to the fall. One of the defendant owners testified the floor probably had been swept twice prior to plaintiff’s fall, and that she fell at a time just prior to the last daily sweeping, which was conducted “maybe anywhere from a half hour before closing time.” In addition, the defendant owner testified that on the day of plaintiff’s accident his regular “boys” were not there and that only one employee was present at the time. Since there was only one employee present in charge of sweeping the floors, and since that employee was not produced at the trial, there is virtually no direct, positive evidence regarding the number of times the floor was swept during the day, or the time of the last sweeping immediately prior to plaintiff’s fall.

Under all the circumstances, the evidence as a whole indicates the defendants did not exculpate themselves from the presumption of negligence and the conclusion of the trial judge was correct. Defendants strongly argue that there was really no conflict between defendants’ witnesses as stated by the trial judge in his written reasons. At best, the testimony is somewhat ambiguous, but even if the ambiguous testimony is not in fact conflicting, the evidence produced by defendants is not sufficient to exculpate them from negligence by establishing regular procedures for cleaning and the faithful adherence to these procedures on the day in question.

The testimony of plaintiff and defendants’ witness regarding plaintiff’s actions in shaking a bundle of mustard greens and placing the foreign substance on the floor herself is conflicting, and the trial judge obviously accepted the version of the plaintiff as true. There is insufficient evidence to conclude the trial court committed manifest error in making this finding.

The law is well settled that the findings of fact by the trial court should not be disturbed on appeal in the absence of manifest error. This is especially true where there is conflicting testimony involving the credibility of witnesses and the weight to be afforded their testimony. The trial judge, having had the opportunity to see and hear the witnesses, is the better judge of their credibility.

The reasons given by the trial judge make it abundantly clear he based his decision on the credibility of the witnesses regarding the different versions set forth by the various witnesses relative to the manner in which the accident occurred. There is nothing in the record indicating abuse of the wide discretion afforded him in making such a determination.

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

AFFIRMED.

      . Kavlich v. Kramer, La., 315 So.2d 282.

      . Canter v. Koehring Company, La., 283 So.2d 716, 724.


source: Caselaw Access Project

author: GULOTTA, Judge. LEMMON, Judge,

license: Public Domain

text:
    GUARDIAN FUNDS, INC. v. MEDALLION INSURANCE AGENCY, INC. and St. Paul Fire & Marine Insurance Company.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 13, 1978.
    Roger H. Fellom, New Orleans, for plaintiff-appellant.
    Wiedemann & Fransen, C. Scott Carter, New Orleans, for defendants-appellees.
    Before LEMMON, GULOTTA and BOU-TALL, JJ.
   GULOTTA, Judge.

Plaintiff’s suit to recover interim finance loans made to a contractor for home renovations was met with a one-year prescription plea. The trial court maintained the plea of prescription. Plaintiff appeals. We affirm.

The petition alleges that the loans were made by plaintiff to the contractor conditioned upon the issuance of a performance bond in the amount of the loans and also conditioned upon approval by the Small Business Administration, thereby guaranteeing the payment of the loans. Plaintiff avers that although a performance bond was issued by American Fidelity Fire Insurance Company making plaintiff the obli-gee, no approval was obtained from the SBA. The contractor defaulted and the loans were not repaid. According to the petition, on April 18,1973, after receiving a letter from Medallion stating that the surety had agreed to name plaintiff as an obli-gee on the bonds, plaintiff extended the maturity date for an additional 120 days. Guardian claims that Medallion “negligently” failed to advise plaintiff, at the time of the extension of the maturity date, that the Small Business Administration had not approved Federal funding of these projects. Based on Medallion’s negligence, judgment is sought against Medallion and its insurer. Because the suit, filed on May 10, 1977, alleges April 18, 1973 negligence, the prescription plea was maintained.

By way of background, the suit was originally directed against American Fidelity on the bond alleging that the contractor failed to complete the bonded jobs. This suit was removed to the Federal Court. In American Fidelity’s answer in the Federal Court (filed on February 8, 1974), the bonding company claimed the contracts had never been entered into or had been cancelled and no Federal funding had been approved. On November 11,1974, plaintiff, in an amended complaint, in the Federal Court, joined Medallion as a party defendant and alleged that Medallion as an agent for American Fidelity had negligently induced plaintiff to believe that each homeowner had entered into a contract for repairs and remodeling with the contractor and that there had been SBA approval of the loans. The suit against Medallion and its insurer was dismissed in the Federal District Court on the basis of lack of Federal jurisdiction. Plaintiff’s suit against American Fidelity was ultimately compromised. Thereafter, the matter before us was filed in the State court against Medallion and its insurer.

It is Guardian’s contention on appeal that it became aware of the nonexistent contracts and of the lack of SBA approval on February 8, 1974, when the answer was filed by American Fidelity in the Federal District Court. According to plaintiff, within a year, on November 11, 1974, Medallion and its insurer were made party defendants and service was effected on November 15, 1974. Plaintiff claims that although suit was filed in a court of incompetent jurisdiction (Federal Court), prescription was interrupted by the filing of suit and the effecting of service of process within a year of obtaining knowledge of Medallion’s negligent acts which constitute the basis of this cause of action. Plaintiff then argues when the Federal Court suit was dismissed on September 27, 1976, the new one-year prescriptive period commenced to run and the present suit, filed on May 10, 1977, was timely filed within the one-year prescriptive period.

We reject this argument. The premise upon which plaintiff bases its claim that the present suit was timely filed is the contention that knowledge of defendant’s April 18, 1973 negligence was first obtained on February 8, 1974.

Well established is the rule that where prescription has tolled on the face of the petition plaintiff bears the burden of showing the claim has not prescribed. Tas sin v. Allstate Insurance Company, 310 So.2d 680 (La.App. 4th Cir. 1975), writ denied, 313 So.2d 836 (La.1975); Wooden v. Hartford Insurance Company, 335 So.2d 742 (La.App. 2d Cir. 1976). The only evidence supporting plaintiff’s allegation is an affidavit from the attorney for plaintiff in which he states Guardian had no knowledge of the defects in the contracts prior to February 8, 1974. Suffice it to say this hearsay affidavit, on its face, attests to knowledge within the keeping of another person. No one from Guardian executed any affidavit stating when knowledge was first obtained.

Furthermore, even if the affidavit were deemed sufficient to show when Guardian first obtained knowledge of the SBA’s non-approval, plaintiff’s argument based on the doctrine of contra non valentem (prescription does not run against him who could not bring the suit) is without merit. In Neyrey v. Lebrun, 309 So.2d 722, 723-724 (La.App. 4th Cir. 1975), we stated that “knowledge of any fact which might lead to knowledge of the tort constitutes notice” and that the doctrine of contra non valentem is limited to cases in which “plaintiff’s ignorance was neither willful nor negligent, and defendant concealed the occurrence . . ..” In the instant suit, Guardian was aware that the bonds were to be issued conditioned on SBA approval of the construction projects. Indeed, its own loans to the contractor were conditioned on the approval of the contracts by the SBA. Guardian therefore had the duty to investigate the circumstances surrounding possible non-acceptance by the SBA. No showing has been made that it was hindered or prevented from making this independent investigation. Accordingly, Guardian cannot rely on the fact that it first learned of SBA non-approval through American Fidelity’s answer in the Federal Court suit. Plaintiff’s lack of knowledge was a consequence of its failure to make inquiry into the SBA non-approval. Under the circumstances, the doctrine of contra non valentem is not applicable.

Having so concluded, the questions raised by plaintiff (relating to the interruption of prescription by service of process on a defendant in a court of incompetent jurisdiction and the continuing of the interrupted prescription throughout the pendency of that action in the improper court) are moot. The trial judge properly maintained the prescription plea.

Accordingly, the judgment is affirmed.

AFFIRMED.

LEMMON, J., concurs and assigns reasons.

LEMMON, Judge,

concurring.

Plaintiff’s damage sustained in connection with the three construction contracts was caused by acts or omissions of which plaintiff should have been aware of prior to extending the maturity date of its loans. The doctrine that prescription does not run against one who is ignorant of facts which would entitle him to bring suit does not apply when the ignorance results from his negligence. Dean v. Hercules, Inc., 328 So.2d 69 (La.1976).

      . This suit is directed against the bonding company’s agent, Medallion Insurance Agency, Inc. and St. Paul Fire & Marine Insurance Company, the “errors and omissions carrier” of Medallion.

      . In oral argument, Guardian claimed the attorney-affiant “is” the Guardian corporation. Nevertheless, the affidavit states only that the affiant appears as the attorney representing Guardian Funds, Inc., and not in any corporate capacity.

      . One construction contract was never executed, the second was cancelled after execution, and the third was cancelled when the owner did not obtain federal funding.


author: GARSAUD, Judge.

text:
    Wayne P. DEROCHE et al. v. Dennis O. CUQUET et al.
    No. 9270.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 13, 1978.
    Dodge, Friend, Wilson & Spedale, Denis Paul Juge, Gordon F. Wilson, Jr., New Orleans, for third party plaintiff-appellant, St. Paul Fire & Marine Insurance Co.
    Jackson & Hess, Leonard A. Washofsky, New Orleans, for defendant/third party defendant-appellee, Dennis 0. Cuquet.
    Before SCHOTT, BEER, and GARSAUD, JJ.
   GARSAUD, Judge.

This lawsuit arose out of an automobile collision involving a vehicle driven by plaintiff Wayne Deroche, a vehicle driven by Dennis 0. Cuquet, Jr., and a third vehicle driven by a Mr. Farmer. Dennis 0. Cuquet, Jr. was a minor and was killed in the accident; his father, Dennis O. Cuquet, Sr., was made a defendant. Mr. Farmer made no appearance and is not involved in this lawsuit.

Originally plaintiffs Deroche and Norris Eschete (the latter suing individually and on behalf of his minor daughter Michelle, who was a passenger in Deroche’s car) filed suit against Dennis Cuquet, Sr. and XYZ Insurance Company. When they discovered that the Cuquet vehicle was uninsured, plaintiffs amended their petition to join as defendants Admiralty Insurance Company (Eschete’s uninsured motorist carrier) and St. Paul Fire & Marine Insurance Company (Deroche’s uninsured motorist carrier). Admiralty Insurance Company immediately paid its policy limits to plaintiffs and took no further part in the lawsuit. St. Paul Fire & Marine, however, denied liability, and filed a third party demand against Cu-quet for indemnification. On the eve of trial, St. Paul settled with plaintiffs for $28,000, $19,000 of which was stipulated to be for Deroche and $9,000 to be for Eschete. Third party plaintiff St. Paul Fire & Marine then proceeded against Cuquet on its third party demand. The parties stipulated that $28,000 would be the correct award if liability were found.

After a trial on the merits, there was judgment on the third party demand in favor of third party defendant Dennis 0. Cuquet, Sr., dismissing the claim of third party plaintiff St. Paul Fire & Marine Insurance Company at its cost. Third party plaintiff St. Paul Fire & Marine appeals.

The factual picture surrounding the accident is very sketchy. Almost all that is positively known is that the Deroche vehicle was traveling west on U.S. Highway 90 toward Houma, Louisiana, when the accident occurred at approximately 11:40 p. m. on July 31, 1976, near Avondale, Louisiana. Neither Deroche nor Eschete saw anything prior to impact, so their testimony was of little help in establishing the facts. Michael Glaub, a passenger in the Cuquet vehicle, testified that he was asleep at the time of the accident and, therefore, that he knew nothing about the accident except that Dennis Cuquet, Jr., who was killed in the accident, was driving the car when they left Houma for New Orleans. There was no evidence to show that the Cuquet vehicle was in fact traveling toward New Orleans at the time of the collision. Mr. Farmer, the driver of the third vehicle, did not testify, and there is nothing in the record to indicate whether his testimony would have been helpful.

Deroche’s testimony was that he was driving at about 40 miles per hour, with no one in front of his car. Immediately béfore the accident, he glanced in the rear-view mirror and saw a car about three to four car lengths back (which apparently was the Farmer vehicle). He then looked down at the speedometer, looked up, and was hit. He does not remember speaking to anyone about the accident afterwards, except to ask whether an ambulance was on the way.

Also testifying was the investigating police officer, State Trooper Gary Wise, who arrived on the scene shortly after the accident. He was accepted as an expert in the field of accident investigation, but the Court refused to qualify him as an expert in accident reconstruction. Thus, his testimony was limited to what he saw; none of his conclusions as to how the accident occurred Trooper Wise testified as were admitted, follows:

(1) All three vehicles were on the westbound side of the wide median of this four-lane highway;

(2) The Deroche vehicle was off on the shoulder facing west [the direction in which it had been moving prior to impact], with no indication whether it had turned around;

(3) The Cuquet vehicle was located in the right-hand lane of the west-bound side of the highway, facing east, with no indication whether it had turned around;

(4) The third vehicle, a pickup truck, was partially off the road, on the shoulder of the west-bound side of the highway;

(5) There were tire marks on the grassy median strip, indicating that an eastbound car had crossed the median there;

(6) There were no gouge marks from the vehicle in the right lane of U.S. 90 westbound from the spot which was concluded to be the point of impact;

(7) There was no debris found in the west-bound lanes of traffic; and

(8) There were no other indications to show in which direction any of these vehicles were traveling, except for the directions in which they were facing after the accident.

The only real issue presented in this case, both at the trial level and on appeal, is whether plaintiffs have sustained their burden of proof to show that the accident was caused by the negligence of Dennis O. Cu-quet, Jr. In its Reasons for Judgment, the trial court found that plaintiffs had failed to carry their burden of proof:

“The only evidence produced against the defendant was circumstantial. Circumstantial evidence suffices in negligence actions only if it excludes other reasonable hypotheses with a fair amount of certainty so that it is more probable than not that the harm was caused by the tortious conduct of the defendant. Townsend v. State Department of Highway, 322 So.2d 139 (La.1975). This Court is of the opinion that the evidence adduced does not exclude other reasonably hypotheses with any amount of certainty whatsoever. The number of other reasonable hypotheses are almost innumerable. The evidence adduced tends to show the mechanics of the accident, i. e., how it occurred, but there was no evidence which tended to show what caused the accident.”

Plaintiff’s position depends heavily on the line of cases in which our Louisiana courts have held that where a car is found to have been in the wrong lane of traffic at impact, there is created a legal presumption of negligence on the part of the party whose car was in the wrong lane, which shifts the burden to that party to prove freedom from negligence. Mistich v. Matthaei, 277 So.2d 239 (La.App. 4th Cir. 1973); Wilson v. Adams, 194 So.2d 343 (La.App. 4th Cir. 1967), writs denied, 250 La. 470, 196 So.2d 534; Pittman v. Fowler, 191 So.2d 172 (La.App. 3rd Cir. 1966). While this principle is well-established, it is inapplicable here, because plaintiffs produced no evidence to corroborate the speculative conclusion, based on the position of the vehicles when viewed by Trooper Wise, that the defendant’s car was in the wrong lane at the time of the impact. Both plaintiffs testified that they saw nothing in front of them before impact and plaintiff Deroche testified that the major portion of damage to his vehicle was on the right side. We know only that Cuquet’s car was in the west-bound lane when Officer Wise arrived on the scene.

We have only mere speculation surrounding this accident. Under these circumstances, even though we may have decided the case differently on trial, it was not manifest error for the trial court to dismiss third party plaintiff’s claim.

Accordingly, we affirm the decision of the trial court. Canter v. Koehring Co., 283 So.2d 716 (La.1973).

AFFIRMED.


author: BEER, Judge.

text:
    In the Matter of the arbitration between BACMONILA GARDEN APARTMENT, INC. and R. Grady WILLIAMS and Continental Casualty Company and Charles Ragusa and son.
    No. 9272.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 13, 1978.
    Jefferson, Bryan & Gray, William J. Jefferson, New Orleans, for plaintiff-appellant.

      Pittman & Matheny, Iddo Pittman, Jr., Hammond, for defendant-appellee.
    Before SCHOTT, BEER and GARSAUD, JJ.
   BEER, Judge.

This appeal is from district court confirmation of an arbitration award.

Bacmonila Garden Apartments, Inc. executed a contract with the firm of Charles Ragusa & Son, Inc. for certain construction work in accordance with plans provided by architect R. Grady Williams. Thereafter, alleging unworkmanlike performance of the job, Bacmonila instituted arbitration proceedings against both contractor and architect pursuant to the arbitration clauses of the respective contracts with each. A settlement was reached between Bacmonila and the architect, Williams, and that is not before us. However, in their response to the allegations of Bacmonila, Ragusa counterclaimed against them and their architect, Williams, contending that Ragusa was entitled to:

1. $10,400.00, the balance of an escrowed sum to be withheld pending correction of certain deficiencies, which Ra-gusa alleged to have corrected;
2. $28,370.10, the cost of fire balconies which were not included in the original plans and which were added only after work had begun, but which were authorized by an approved change order;
3. $2,124.00, the cost of ninety steel columns not in the original plans, needed to support sagging galleries, and allegedly approved by owner in a change order; and
4. $3,000.00, the cost of an increase in size of the laundry room. (It is not alleged that a change order was approved on this item.)

As a result of the arbitration proceedings, the panel of arbitrators found that deficiencies in the building resulted from “the ineptness, lack of supervision, miscalculations and defective design of the architect, R. Grady Williams.” The arbitrators expressly concluded that “there was no demonstrable fault proven against the contractor, who attempted to construct the apartment complex to the best of his ability in accordance with the plans and specifications as provided by the architect on behalf of the owner.”

Thereupon, the arbitrators awarded Ra-gusa $40,894.10, which award was clearly based upon their approval of the first three claims listed above. This precipitated Bac-monila’s district court suit and, subsequently, this appeal.

An action to vacate an arbitration award must be founded on one of the four narrowly delineated grounds described in La.R.S. 9:4210. Appellant, Bacmonila, contends that the award in this case was made in violation of La.R.S. 9:4210(D), which provides for vacation of same “where the arbitrators exceeded their powers or so imperfectly executed them that a mutual, final, and definite award upon the subject matter submitted was not made.”

Though appellants strenuously contend that “the arbitrators exceeded their power by disregarding the contract of the parties in several respects,” the thrust of their argument centers at the contention that any dispute regarding the change orders should not be governed by the arbitration provisions of the original contract. But this begs the question since the arbitrators have, quite obviously, made factual determinations regarding the validity and effectiveness of the change orders and have, in accordance therewith, reached conclusions regarding the change orders which are properly within their purview and ambit of consideration as arbitrators. ‘

While couching its argument in terms of the arbitrators having exceeded their authority, appellant actually seeks to have us review the merits of the case. Well settled jurisprudence provides no authority for us to take such action. See Firmin v. Garber, 353 So.2d 975 (La.1977). Accordingly, the trial court’s confirmation of the award of the arbitrators is affirmed at appellant’s cost.

AFFIRMED.


text:
    Maurice NARCISSE, Jr., et al. v. Henry P. FONTCUBERTA et al.
    No. 9274.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 13, 1978.

      McDonough & McDonough, Birch P. McDonough, New Orleans, for third party defendant/plaintiff-in-reconvention/appel-lant Betty Parker.
    Edward F. Wegmann, Fred P. Westen-berger, Fred P. Westenberger, T. A., New Orleans, for third party plaintiff s/defendants-in-reconvention/appellees Henry P. Fontcuberta and Lafayette Insurance Co.
    Béfore SCHOTT, BEER, and GARSAUD, JJ.
   GARSAUD, Judge.

This suit was brought as a result of a fire on August 7, 1975 on the premises of 920-922 North Rendon Street in New Orleans, owned by defendant Henry Fontcuberta. The original suit was filed by Maurice Nar-cisse against Fontcuberta and his insurer, Lafayette Insurance Company. Narcisse owned and occupied the residence at 924 North Rendon, which also was severely damaged by the fire.

Defendant Fontcuberta then filed a third-party demand against appellant, Betty Parker, the lessee of 922 North Rendon, who then reconvened against Fontcuberta. After a full trial of the case before the Commissioner in Civil District Court for the Parish of Orleans, judgment was rendered in favor of defendants and third-party defendants-in-reconvention, dismissing the suits of plaintiffs and third-party plaintiff-in-reconvention. Only Betty Parker, third-party plaintiff-in-reconvention, has appealed.

There is little dispute concerning the facts of this case. All of the testimony was to the effect that the fire broke out in the rear of 922 North Rendon, which was leased by appellant Betty Parker. The other half of the double house, 920 North Rendon, had been occupied by defendant’s brother, but was vacant at the time of the fire. Because the back part at 922 North Rendon was more intensely burned than at 920 North Rendon, the evidence showed that the fire originated in the rear room of 922 North Rendon, where the water heater was located.

Plaintiff and third-party plaintiff-in-re-convention, specifically pleading res ipsa lo-quitur, contend that the fire was caused solely by the negligence of defendant Font-cuberta in maintaining a defective water heater on the premises. Originally, they alleged there was a defective electrical system; however, this claim seems to have been abandoned on appeal since there was no evidence to support such an allegation.

Defendants, on the other hand, contend that res ipsa loquitur does not apply to them, but instead that appellant Parker should be found liable under that doctrine for having stored combustibles near the water heater.

The Commissioner filed a carefully considered report which was adopted by the district court. The district court concluded that plaintiff and third-party plaintiff-in-reconvention/appellant failed to prove that the water heater had a vice or defect and that it was the cause of the fire.

The sole issue presented is whether plaintiffs carried their burden of proof, or whether the burden shifted to defendants by the application of the doctrines of either res ipsa loquitur or strict liability for things in one’s custody. C.C.Art. 2317, Loescher v. Parr, 324 So.2d 441 (La.1975).

Neither of the above doctrines are applicable in this case, because the water heater here was clearly not exclusively within the custody of defendant Fontcuberta. The doctrine of res ipsa loquitur applies only (1) where the defendant had exclusive control over the area, (2) where the cause of the accident which resulted in damage is more properly within the knowledge of defendant, and (3) where all the facts and circumstances indicate that the negligence of the defendant, rather than the negligence of others, is the most likely cause of the accident. Boudreaux v. American Insurance Company, 262 La. 721, 264 So.2d 621 (1972); Nero v. Ideco, 255 So.2d 128 (La.App. 3rd Cir. 1971), writ refused, 260 La. 125, 255 So.2d 352.

“For the doctrine of res ipsa loquitur to be applicable, the evidence as to the circumstances connected with the accident must be of such a nature that it creates an inference that the accident was caused by the negligence of the defendant, and with a fair amount of certainty excludes every other reasonable hypothesis as to the cause of such accident. This inference is not drawn merely because the accident occurred or the thing speaks for itself, but because all of the circumstances surrounding the accident are of such a character that the only fair and reasonable conclusion is that the accident was due to some omission of the defendant’s duty, and that there is no other reasonable or logical explanation for the occurrence of such an accident.” (Citations omitted.) Fruge v. Trahan, 194 So.2d 478, 482 (La.App. 3rd Cir. 1967).

Here, the facts do not indicate that a faulty water heater was a more likely cause of the fire than any negligence on the part of Betty Parker. Certainly they do not indicate that any knowledge of the cause is more properly with the defendant.

The same problem is encountered in trying to apply the doctrine of strict liability according to Loescher v. Parr, supra. Neither the premises nor, specifically, the water heater were within the exclusive custody of defendant Fontcuberta, and no vice or defect in the water heater was ever shown. Although a fire inspector did note that a faulty water heater was a “possible” cause, all that was proven here, by expert testimony, was that the fire originated in the area of the water heater.

Once it is clear that the burden of proof never shifted to defendant under one of the above doctrines, it must be determined whether plaintiffs proved, by a preponderance of the evidence, that the fire was caused by the negligence of defendant Fontcuberta. Since there was no direct evidence of the cause of the fire, plaintiffs must rely on circumstantial evidence.

“It is well settled that the plaintiff has the burden of proving causation by a preponderance of the evidence. It is only necessary that the evidence show that it is more probable than not that the harm was caused by the tortious conduct of the defendant. . . . This burden of proof may be satisfied by direct or circumstantial evidence. ... It suffices if the circumstantial evidence excludes other reasonable hypotheses only with a fair amount of certainty so that it is more probable than not that the harm was caused by the tortious conduct of the defendant.” (Citations omitted.) Townsend v. State Department of Highways, 322 So.2d 139, 141, 142 (La.1975).

In looking at the evidence adduced, it does not appear that it “excludes other reasonable hypotheses” with a fair amount of certainty. Although a faulty water heater is one possibility, other reasonable hypotheses were not excluded. The Commissioner’s Report sets forth the evidence produced:

“Claimants contend that the defendant Fontcuberta maintained in the premises 922 North Rendon an antiquated dangerous hot water heater. But no evidence was introduced in support of this contention.
“The hot water heater in question was approximately six years old. The tenant had never notified defendant that said hot water heater was malfunctioning. When she first went in to the premises in May of 1975 the hot water heater was lit by a serviceman from New Orleans Public Service. It did not remain lit and she called Public Service who sent a service man to relight it. After that there was no occasion presented to the tenant to make further calls about the heater and at no time did she complain to the defendant about it not operating in a satisfactory manner. Defendant had no reason to assume any malfunctioning of that hot water heater and the Public Service representative called as a witness testified that had there been a deficiency in the hot water heater a notation would have been made in the records and they would have refused to turn it on. It follows that as of May 1975 there was not a malfunction with the hot water heater located in the premises 922 North Rendon Street.
“A City Fire Inspector was produced on behalf of plaintiffs and he testified that the origin of the fire was around the hot water heater and in his report he stated ‘possible faulty heater.’ In testimony he speculated by assuming that this hot water heater flared out and lashed at trash located around it. However, he was unable to state if trash which he observed upon his investigation after the fire had been there prior to the fire. He did not inspect the element in the hot water heater and concluded by saying that there was no way possible for him to determine if that element did function properly. Considering all aspects of the testimony given by the Fire Inspector, it must be concluded therefrom that his opinion was based upon pure conjecture and that it left unanswered the question of what caused the fire.
“The Fire Captain called by the plaintiff testified that the trash which was noticeable around the hot water heater in 922 North Rendon Street after the fire had been extinguished was put there by his men who pulled it there from the kitchen and from the other side of 920 North Rendon. He was unable to state that there was a pile of trash around this hot water heater prior to the fire.
“This witness testified that barring electric[ity] or gas being the cause of the fire, his opinion was that the hot water heater caused it. This too is simply speculation on the part of this witness and as such it has no probative value.
“At no time did the tenant ever notify the defendant owner of any malfunction in the hot water heater, or the need for any repairs thereto; the records of the New Orleans Public Service do not reflect any deficiency or malfunction therewith. And there was no proof offered in support of thé contention by plaintiff and third party defendant in reconvention that the defendant Fontcuberta was maintaining in the premises 922 North Rendon Street a dangerous antiquated hot water heater. Plaintiff took possession of the hot water heater that was in the premises 922 North Rendon Street and turned same over to an expert for examination, to determine if said heater was the cause of the fire. However, the expert hired by plaintiff was not subpoenaed as a witness. It must therefore be presumed, from a legal standpoint, that the testimony would have been adverse to plaintiff.” Report of the Commissioner, pp. 4-6.

Thus, it appears that plaintiffs failed to carry their burden of proof to show that the cause of the fire was the result of some negligence on the part of defendant Font-cuberta.

Based on the record, we can find no manifest error on the part of the Commissioner or the district court. Accordingly, the decision of the district court is affirmed.

AFFIRMED.


author: SCHOTT, Judge.

text:
    Earl HARRISON v. EXXON CORPORATION and Ronald Naquin and the United Services Automobile Association.
    No. 9277.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 13, 1978.
    Band & Hopkins, David Band, Jr., New Orleans, for plaintiff-appellant.
    Schafer & Schafer, John J. Messina, New Orleans, for defendants-appellees.
    Before SCHOTT, BEER and GARSAUD, JJ.
   SCHOTT, Judge.

Plaintiff has appealed from a judgment dismissing his claim for damages for injuries he sustained while he was servicing defendant’s automobile.

Defendant Naquin, accompanied by his wife, was driving home at about 11:30 PM one Saturday when the warning light on his dashboard lit up signalling that his engine had overheated. He immediately proceeded to an EXXON Service Station two blocks away where plaintiff, Earl Harrison, was the only attendant on duty.

Harrison was informed by defendant that the car had overheated whereupon he instructed defendant to start the engine. Harrison then with a hose pumped water on the exterior of the radiator for about five minutes.

At this point there is a conflict in the testimony, Harrison’s version being that he barely touched or tapped the radiator when steam and bailing fluid shot out into his face injuring him. According to defendant, Harrison in one quick continuous motion twisted the cap open while defendant’s wife, who was seated in the car watching Harrison, described a first twist, whereupon steam escaped, followed immediately by a second twist, whereupon steam and hot liquid spewed into plaintiff’s face.

Plaintiff’s suit for damages against Na-quin and his liability insurance carrier was dismissed by the trial judge for the following reasons:

“FINDINGS OF FACT
1.
The cap and radiator were in working order.
2.
The thermostat was the cause of the over-heating of the radiator.
3.
The plaintiff after giving the cap a first turn waited about four or five minutes before giving the cap a second turn.
OPINION
It is the opinion of the Court that the sole cause of the accident was the negligence of the Plaintiff, Earl Harrison.
The Plaintiff simply removed the cap before the radiator ‘cooled off.’ ”

The principal theory of defendants’ liability advanced by plaintiff is negligence on the part of Naquin for failing to warn plaintiff of a dangerous condition existing in the automobile’s cooling system whereby its liquid would spew or spout out of the radiator with unusual force if the cap was released. In support of this theory was plaintiff’s testimony that the spouting out occurred when he just touched the cap and defendant’s testimony that past experience of losing coolant when the cap was removed by service station attendants had prompted him to put a notice on the top of the cap warning against opening it.

On the other hand, it was established by expert witnesses that the cap in question was not defective and it was so constructed that it was to be opened in two phases. After one twist steam would escape but no liquid and a second twist was required to open the cap. These experts agreed that an interval of time, one said VA hours should elapse between these phases. In any event, there is no testimony in the record to show that plaintiff waited at all between phases and to this extent we disagree with the trial judge. There was no four or five minute intervals between phases, but, on the contrary, the second phase occurred immediately after the first and, as such, was the wrong procedure, thereby producing an unfortunate result for plaintiff.

From our review of defendant’s testimony we are unable to agree with plaintiff that defendant had some duty to warn plaintiff about some dangerous propensity in his radiator. First, there is no evidence that this radiator performed any differently than any other radiator would have under the circumstances. Second, defendant, an attorney, said repeatedly that he didn’t know anything about cars and was looking to plaintiff for help. Third, defendant categorically denied that he was aware of any danger to plaintiff and explained the sign on the cap as the result of past experiences when attendants had routinely loosened the radiator cap and caused defendant to lose coolant, but defendant denied ever having the liquid spout or spew out as it did in this case.

We have concluded that plaintiff did not establish negligence on defendant’s part and therefore may not recover on this theory.

Plaintiff would also establish liability on the theory that he was an invitee of defendant and suffered his injury as a result of a defect in defendant’s premises, his car, which was known to defendant. Plaintiff would thus assign a high degree of care to defendant. We see no reason to decide whether this principle is applicable or not because of our determination that there was no defect in the first instance and no showing of any knowledge on defendant’s part of any defect, with a corresponding duty to warn plaintiff even if he could be considered an invitee of defendant.

We have concluded, as did the trial judge that plaintiff was the victim of his own carelessness. The incident which resulted in his injury was a normal hazard against which any service station attendant must guard. Accordingly, the judgment appealed from is affirmed.

AFFIRMED.


author: BOUTALL, Judge.

text:
    Mrs. Terry W. LYONS and Mrs. Robert P. Mayer, Sr. v. AVONDALE SHIPYARDS, INC., et al.
    No. 9305.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 13, 1978.
    Randell 0. Lewis, Hackman & Lewis, Boutte, for plaintiffs-appellants.
    Dominic J. Gianna, of Hammett, Leake, Hammett, Hulse & Nelson, New Orleans, for defendant-appellee.
    Before REDMANN, LEMMON and BOUTALL, JJ.
   BOUTALL, Judge.

Alleging that Terry W. Lyons was killed while working at Avondale Shipyards, Inc. on April 9, 1976, his widow, on behalf of herself and the minor children, and his mother brought a suit against Avondale Shipyards, Inc. for damages because of his death. Avondale Shipyards, Inc. filed an exception of no cause of action based on immunity from suit in tort because it was the employer of the decedent. See L.R.S. 23:1032; 33 U.S.C.A. § 905(a). The trial judge maintained the exception dismissing the suit against Avondale and plaintiffs appeal.

The sole issue on this appeal is whether the trial judge erred in dismissing plaintiffs’ suit and failing to give plaintiffs an opportunity to correct their petition. C.C.P. Article 934. Appellants contention is thus stated in brief:

“In the instant case the exception of no cause or right of action was granted because Avondale Shipyards was the employer of the plaintiff’s deceased husband, however, plaintiff could still state a cause of action against Avondale Shipyards, Incorporated by alleging that the damages resulted from an intentional act or from an act which arose outside of the course and scope of the employment.”

We quote plaintiffs’ brief because it actually demonstrates the speculative nature of his position. Article 934 is designed to afford a meritorious plaintiff an opportunity to correct defects in his pleadings, not to speculate on unwarranted facts of a contrary nature, which counsel may furnish as a means of somehow getting into court without regard to the true facts surrounding plaintiffs’ cause of action. We see no need to discuss this matter except to say that, considering appellants’ assertion quoted above, and the fact that the attorney was not even present at the hearing of the exception in the trial court, this appeal amounts to a frivolous appeal.

The judgment is affirmed at appellants’ costs.

AFFIRMED.


author: STOULIG, Judge.

text:
    ALL LINES INSURANCE AGENCY, INC. v. Howard MALKOVE, d/b/a Crescent Rex Beauty Supply Co.
    No. 9368.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 13, 1978.

      Cameron C. Gamble, New Orleans, for plaintiff-appellee.
    Stahl & Berke, Kenneth J. Berke, New Orleans, for defendant-appellant.
    Before SAMUEL, REDMANN and STOULIG, JJ.
   STOULIG, Judge.

Defendant, Crescent City Beauty Supply Co., Inc., has appealed a judgment awarding plaintiff, All Lines Insurance Agency, Inc., $1,278.17 in a suit for unpaid insurance premiums.

The facts are not disputed. In July 1975 Howard Malkove, president of defendant corporation, contacted Christopher Bertucci of plaintiff agency for price quotations on workmen’s compensation and general liability insurance policies. Malkove, having been quoted premiums of $2,125 for the liability and $353 for the compensation coverage, requested issuance of both. Coverage became effective July 15, 1975, however, the policies were not delivered until December 5, 1975 although Malkove requested delivery several times in the interim. When Bertucci finally brought the contracts, Malkove learned the premium for liability was $3,213 ($1,088 more than the quoted price) but the compensation premium remained the same. It was explained the insurer discovered plaintiff had more accidents than the number stated when the initial price was quoted. Malkove complained but he did not cancel because he had no other insurance. He issued a check for $353 that same date to pay for the workmen’s compensation coverage.

By letter of December 19, 1975, Malkove, still complaining about the sharp upward revision of price, nonetheless agreed to keep the policy and pay the premium. Thereafter he made several payments on the larger premium, and in January 1976, Malkove filed a claim under the general liability policy he now wishes to repudiate. On April 8, 1976, the insurer cancelled both the liability and the workmen’s compensation policy for nonpayment of premiums after first notifying the insured of its intent to do so.

Based on this evidence the trial court concluded plaintiff was entitled to recover the unpaid balance due for coverage under both policies from July 15, 1975 through April 7, 1976 (a total of 268 days, not including the date of cancellation). The annual premium for both, as revised by the December quotation, was $3,566. It is undisputed defendant’s payments and credits totaled $1,333. Apparently the trial judge computed the earned premiums by dividing $3,566 by 366 (the number of days in the policy year) and calculated the daily premium at $9.74316. This multiplied by 268 equals $2,611.17 and after deducting payments and credits, the unpaid balance is $1,278.17.

Appellant first contends the trial court improperly admitted evidence over objection that expanded the pleadings to establish plaintiff’s subrogee status. Plaintiff’s agent was allowed to testify it had paid the insurer the premiums incurred on Crescent’s policies. Defendant contends under Perrin v. Saunders, 198 So.2d 555 (La.App. 4th Cir. 1967), an insurance broker only acquires the right to sue for unpaid premiums by payment of the premiums to the insurer and a subrogation of its right to collect.

While the language of Perrin gives this impression, its holding must be limited to the facts of that case, totally distinguishable from this one. In that case plaintiff Vincent Perrin filed a petition alleging it sold and delivered to Wilbur Saunders certain insurance policies and incorporated by reference a statement of account. The invoice was that of Black Rogers Agency to Saunders. The connection between Perrin and Saunders was unexplained and there was no testimony to clear it up because both litigants, apparently conceding the relationship between plaintiff and defendant, viewed the issue as one of prescription. On appeal, this court sua sponte noticed the lack of connexity.

In this case plaintiff has alleged an indebtedness to it which defendant has acknowledged verbally and in writing. The allegation of debt between plaintiff and defendant is sufficient to warrant introduction of evidence to establish how the indebtedness arose in plaintiff’s favor, whether by subrogation or other means. The testimony and correspondence between the litigants establish a debtor-creditor relationship; therefore, we hold the trial court did not err in admitting evidence of payment by plaintiff to the insurer.

Appellant next contends there was no contract of sale confected because there was no meeting of the minds. Appellant correctly states a sale becomes complete only after vendor and vendee have consented to the object and the price. (C.C. arts. 2439, 2456.) Had Malkove withdrawn from the sale on December 5, 1975 when he learned of the price increase we would agree there was no contract. Malkove’s aggravation about Bertucci’s dilatory delivery and high-handed announcement of increased premiums is understandable; however, when he subsequently agreed to pay the modified premium (albeit not cheerfully), and when he made a claim under the general liability policy in January 1976, he did assent to the change in price. We find there was a meeting of the minds.

Finally appellant disputes the method of computing the balance due by it. Without a protracted discussion, we conclude the formula set forth previously was fair under the circumstances and point out defendant was not required to pay premiums generally charged for premature cancellation.

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

AFFIRMED.

      . By supplemental petition Crescent City Beauty Supply Co., Inc., was made a party defendant. The judgment of the trial court dismissed plaintiffs suit against Howard Malkove, doing business as Crescent (Rex) Beauty Supply Co.


text:
    VALLEY FORGE LIFE INSURANCE COMPANY v. Joseph W. KRAUSE et al.
    No. 9377.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 13, 1978.

      Tucker, Schonekas & Garrison, Arthur S. Mann, III, New Orleans, for defendant-appellant Rose Krause.
    Joseph S. Kluchin, Jr., New Orleans, for defendant-appellee Joseph W. Krause.
    Before SCHOTT, BEER and GARSAUD, JJ.
   SCHOTT, Judge.

This is a concursus proceeding initiated by plaintiff against Joseph A. Krause, Mrs. Rose Krause and Mrs. Billie Barron concerning life insurance proceeds in the amount of $15,000, payable under a policy issued on May 7, 1970, to Henry J. Krause. The policy was from a group policy to employees of the state. Henry J. Krause died on February 19, 1974.

When the policy was issued the named beneficiary was the decedent’s brother, Joseph W. Krause, but on September 24, 1971, decedent signed a form entitled “Change of Status and Evidence of Insurability” which purported to change the beneficiary on the policy. The portion of the form involved in a change of beneficiary contains in print the instructions: “Change my Life Insurance Beneficiary From” followed by a blank which was filled in with the name Joseph W. Krause. This is followed by the printed word “To” and a blank for the new beneficiary. This blank was not filled in. Following the blank was printed on the form: “Relationship of New Beneficiary to Insured” following this someone had typed: “See attached list.” The form was signed by decedent. Although the form was sent to and received by plaintiff’s agent on December 4, 1971, the “attached list” referred to on the form was not attached, was never received, and was never found.

Joseph Krause claimed the proceeds on the basis that he is the beneficiary, the change of beneficiary never having been made during the decedent’s lifetime. Mrs. Rose Krause, the decedent’s widow, who, at the time of his death, had been living separate and apart from him for about twelve years, but never legally separated or divorced from him, claimed the proceeds as surviving spouse in community with decedent. She alleged in her answer that the estate of the deceased was the proper beneficiary under the circumstances and contends that she would inherit those proceeds under the law. Finally, Mrs. Billie Barron claimed $3,000 of the proceeds on the allegation that she was designated to receive that sum by the schedule decedent intended to attach, although she admits that the schedule was lost. However, she voluntarily dismissed her claim before the matter was submitted to the trial court for adjudication.

The trial judge, to whom the matter was submitted on a stipulation of facts, awarded the proceeds to Joseph W. Krause for the following reasons:

“The sole question for determination must therefore be whether the mere execution of the ‘Change My Life Insurance Beneficiary’ form, in blank, constituted a revocation of the originally named beneficiary. The Court is of the opinion that it does not, even if signed by the insured, and the weight of authority supports the Court’s opinion.”

Rose Krause has appealed from this judgment, taking the position that decedent did change the beneficiary of his policy to the extent of removing Joseph W. Krause so that the decedent’s estate became the proper beneficiary for lack of a named beneficiary.

Before going further, the following provisions of the policy with respect to change of beneficiary are relevant:

“An Insured Employee who has not named an irrevocable beneficiary, may change his beneficiary at any time without the beneficiary’s consent by filing written notice of the change with the Employer but the change shall not become effective under this policy unless the notice is received by the Company at its Executive Offices or by the State of Louisiana, Division of Administration, Group Insurance Section, acting on behalf of the Company. Upon receipt of the notice by the Company, the change will take effect as of the date the notice was signed, but without prejudice as to any payment made before such change is recorded by the Company.”

At the outset we must consider appellant’s contention that we should start with the assumption that decedent necessarily intended that his brother no longer be the beneficiary on the policy when he signed the form and, therefore, the judgment of the trial court is necessarily inconsistent with decedent’s intention. However, for us to know the intent of the decedent requires speculation since it is just as plausible that decedent was changing the beneficiary completely from his brother to one or more other beneficiaries as that he was perhaps naming another beneficiary to take only a small portion of the proceeds with the balance of the proceeds left to his brother as the beneficiary.

Under these circumstances we reject appellant’s argument that we must look to the intention of the decedent in making our decision. Even if the law favored this kind of solution there are simply no facts in the record on which such a decision could be based.

Furthermore, in considering appellant’s argument that we should endeavor to determine the intent of the decedent and therefore hold that his estate was the proper beneficiary now entitled to receive the proceeds we would therefore decide the case on the basis that his intention was to have his life insurance proceeds distributed according to the laws of intestacy. Under appellant’s theory this would make her the ultimate beneficiary pursuant to LSA.-C.C. Art. 915. Without considering the merits of this ultimate contention we must point out that there is absolutely no basis on which to assume that decedent intended the proceeds to go to appellant simply because he signed the form which did no more than to express an intention to remove Joseph Krause as the beneficiary for the full 100% of the proceeds.

These circumstances distinguish the case from the one case appellant relies on in our jurisprudence, Wickes v. Metropolitan Life Ins. Co., 170 So. 48 (Orl.La.App.1936). In that case the original beneficiary on the policy was the insured’s executor or administrator. He subsequently informed the company’s agent that he decided to change the beneficiary and the agent provided him with an application blank for that purpose. The form was completed with the insertion of plaintiff’s name as the new beneficiary and the insured signed the form. For some reason the change was not administratively processed by the insurance company at its home office and that there was no certificate by the president or secretary of the company that the beneficiary change had been made. The court held that the desire and the intention of the insured were paramount and to deny his wishes would be inequitable and unjust. The distinction is clear. The insured in the Wickes case clearly and in writing expressed his intention, not only to change the old but to designate the new beneficiary. As the court pointed out, he did everything in his power to bring about that change. In the instant case, we are unable to determine the intention of the insured and the same equitable considerations as the court made in the Wickes case are not present here.

Furthermore, the court was able to reach a decision in the Wickes case because of the “facility of payment clause” in the policy which was involved there. That clause, in effect, enabled the company to pay the proceeds to anyone it deemed equitably entitled to payment without regard to the designation of the beneficiary in the policy.

On the other hand, we appreciate our jurisprudence to be consistent with that expressed as the general rule in Couch on Insurance 2d, § 28:109. Where an attempt to change a beneficiary in a life insurance policy has been unsuccessful the prior beneficiary is entitled to the proceeds of the insurance, and an attempted designation of a new beneficiary where a former one has been legally and validly designated will not if invalid or unsuccessful revoke the original designation and impair the rights of the original beneficiary. In Giuffria v. Metropolitan Life Ins. Co., 188 La. 837, 178 So. 368 (1938), even though the insured had signed a change in beneficiary on the form provided by the insurance company and this form was received in the home office of the company before the insured’s death, because the policy required surrender of the policy so as to endorse the change thereon, and this was not accomplished, the court held that the original beneficiary was entitled to the proceeds. In New York Life Ins. Co. v. Murtagh, 137 La. 760, 69 So. 165 (1915), the original beneficiary was held to be entitled to the proceeds where the insured had the right to designate a new beneficiary by filing a written notice at the home office of the company accompanied by the policy for an endorsement thereon, but such notice was never received by the company. See also Morein v. North American Co. for Life & Health Ins., 271 So.2d 308 (La.App. 3rd Cir. 1972), writ refused 273 So.2d 845.

In the instant case, we have an attempted change in the beneficiary which was ineffective because it did not show the extent to which a change was made or the person(s) in whose favor a change was made. When the law discussed above is applied to these facts we cannot say that appellant is entitled to these insurance proceeds. Accordingly, the judgment appealed from is affirmed.

AFFIRMED.

      . We pretermit appellant’s procedural problem not raised by the parties but perhaps serious. There is no showing that appellant or anyone else ever qualified as decedent’s succession representative who would have the right of action to assert a claim on behalf of his estate.


text:
    Henry ROBINSON v. STATE of Mississippi.
    No. 50344.
    Supreme Court of Mississippi.
    May 10, 1978.
    Rehearing Denied July 12, 1978.
    Brown, Alexander & Sanders, Firnist J. Alexander, Jr., Jackson, for appellant.
    A. F. Summer, Atty. Gen. by Billy L. Gore, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Adams County; Lenox L. Forman, Judge.

Before ROBERTSON, P. J., and WALKER and COFER, JJ.

AFFIRMED.

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


text:
    David Allen McKEE, by Paul R. McKee, father and next friend v. Ethel MORAN, by Russell Moran, father and next friend.
    No. 50307.
    Supreme Court of Mississippi.
    May 17, 1978.
    Rehearing Denied July 12, 1978.
    Ransom P. Jones, III, Pascagoula, R. P. Jones, Jr., Ocean Springs, for appellant.
    Bryant & Stennis, Rae Bryant, Gulfport, for appellee.
   Appeal from Circuit Court, Jackson County; Darwin M. Maples, Judge.

Before PATTERSON, C. J., WALKER and COFER, JJ., and JOE N. PIGOTT, Commissioner.

AFFIRMED.


author: SUGG, Justice,

text:
    Frederick B. SCOTT v. STATE of Mississippi.
    No. 50391.
    Supreme Court of Mississippi.
    May 17, 1978.
    Rehearing Denied July 12, 1978.

      David R. Hunt, Joe C. Webster, Clarks-dale, for appellant.
    A. F. Summer, Atty. Gen., by Billy L. Gore, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before ROBERTSON, P. J., and SUGG and WALKER, JJ.

      .A. The original print-out or read-out of the Polygraph Test administered to the Defendant, Frederick Scott, in Jackson, Mississippi on the 5th day of March, 1976, including the specific questions which were asked of the Defendant, Frederick Scott.
      B. The original results of said Polygraph Test and/or the report from the technician who administered said Polygraph Test to the Defendant, Frederick Scott.
      C. The name and address of the person who administered the Polygraph Test to the Defendant, Frederick Scott.
      D. Any and all reports containing the statements and witnesses.
      E. Copies of any and all oral statements made by any witnesses concerning the crime alleged herein.
      F. The criminal record of any and all prosecuting witnesses.
      G. The names and addresses of all witnesses to the alleged crime.
      H. Any written or oral statement made by the Defendant herein.
      I. To furnish the defendant’s attorneys with the addresses at which subpoenas may be served on all prosecuting witnesses.
      J. To furnish all evidence in possession of the State favorable to the accused.
      K. To furnish such other and further information to this Court as may seem just and proper.

   SUGG, Justice,

for the Court:

The defendant, Frederick B. Scott, was convicted in the Circuit Court of Coahoma County for the rape of a female above the age of twelve years, and was sentenced to life imprisonment.

The twenty-three year old prosecutrix arrived at her office at approximately 7:30 a. m. on February 18, 1976. While working near her reception desk which was located approximately ten feet from the office door, she heard the door bell ring and saw a young black male enter. The man entered, pulled a stocking over his face,' and approached the victim with a small chrome pistol. The office was well lighted and she could see the man plainly before he pulled the stocking over his face. The man rummaged through the victim’s purse, forced the victim to a work room located behind the reception room, and raped her. Three days later she identified the defendant from a photographic lineup as the rapist, and defendant’s conviction was based principally on the victim’s identification.

The defendant first assigns as error the court’s refusal to sustain his motion to require the state to disclose the identity of a confidential informer. On February 21, 1976, three days following the rape, a confidential informer told Assistant Chief of Police Jimmy Carsley of the Clarksdale Police Department that the person who committed the robbery at the McWilliams Building was a man named Freddie. The informant stated that the person named Freddie, whose last name was unknown to him, had no visible means of support, was residing in an attic in an old house in Clarksdale, and had been arrested during the preceding week by the Clarksdale Police Department on burglary charges. After receiving the confidential informant’s tip, Carsley searched his files for photographs taken during the preceding week. Included in the photographs was one of the defendant. It was shown to the victim together with photographs of several young black males. After reviewing the additional photographs, the victim identified defendant as the rapist.

The defendant contends that, because the tip from the confidential informant set a chain of events in motion which ultimately led to his identification and arrest, the disclosure of the informer’s identity was necessary for a proper defense.

We find no error in the court’s refusal to require the disclosure of the identity of the confidential informant. We have consistently held that, where the informer is not an actual participant or eyewitness to the alleged crime and is not a material witness to the guilt or innocence of the accused, the disclosure of the identity of the informer is within the sound discretion of the trial court. Sims v. State, 313 So.2d 27 (Miss.1975); Ward v. State, 293 So.2d 419 (Miss.1974); McCormick v. State, 279 So.2d 596 (Miss.1973); and Young v. State, 245 So.2d 26 (Miss.1971). Carsley testified that the confidential informant was reliable and had furnished correct information in the past. The confidential informant was not present during the commission of the robbery and rape; therefore,the trial court properly refused to require the state to disclose the identity of the informer.

The defendant next contends that the lower court erred in refusing to direct the prosecutrix to confer with his attorneys so she could be examined by his attorneys in a private conference. Three weeks before trial, counsel for the defendant filed a motion to require the prosecutrix to confer fully in a separate and private conference with them. They argued that their cross-examination of the prosecutrix at the preliminary hearing conducted earlier was impeded by objections of the district attorney which were sustained by the presiding justice court judge. The trial judge took the matter under advisement to avail himself of the opportunity to read the transcript of the preliminary hearing. After reviewing the transcript, the trial judge concluded that only one objection was improperly sustained at the preliminary hearing, and ordered the prosecutrix to meet privately with counsel for the defendant at the Coa-homa County Courthouse for not more than ten minutes in order to permit them to ask that one question. The defendant argues, on appeal, that the failure of the court to permit a lengthy and searching interview of the prosecutrix by his counsel denied him the necessary means for a proper preparation of a defense.

For a long time we have recognized the right of a party to confer with witnesses in preparation for trial. As early as 1876 in White v. State, 52 Miss. 216, we held that it is not within the power of a judge to deny counsel for a defendant “conversation with his witness generally.” This case also recognized that some interviews with witnesses should be allowed only in the presence of the sheriff or some officer of the court, but held that the court should never refuse counsel for defendant an opportunity to converse with a witness which he had subpoenaed and proposed to call. In Shaw v. State, 79 Miss. 21, 30 So. 42 (1901) the rule in White was reaffirmed as a denial of the constitutional right of a defendant; however, the right of a trial court to impose reasonable limitations as to the length of time of a conference was recognized.

In a number of cases we have upheld reasonable limitations on the right to confer with witnesses. Davis v. State, 218 So.2d 17 (Miss.1969), cert. denied 395 U.S. 949, 89 S.Ct. 2032, 23 L.Ed.2d 469 (Miss.1969); Cannon v. State, 190 So.2d 848 (Miss.1966) (defense counsel was not permitted to interview prosecutrix and another witness except in the presence of an officer); Scott v. State, 218 Miss. 892, 56 So.2d 839 (1952) (time of conference limited by the court); Bruce v. State, 169 Miss. 355, 152 So. 490, suggestion of error overruled 169 Miss. 355, 153 So. 672 (1934) (time limitation imposed to avoid unreasonable delay of trial); Frazier v. State, 142 Miss. 456, 107 So. 674 (1926) (private conference with witness’who was a convict denied because the witness was an escape risk); Mackie v. State, 138 Miss. 740, 103 So. 379 (1925) (defense counsel could not confer privately with witnesses who were children of tender years and who were afraid to confer privately except in the presence of another).

The essence of the right asserted by the defendant is that of access to prospective witnesses. A defendant’s right to confer privately with witnesses should not be arbitrarily denied, provided the witness is willing to submit to questioning. The defendant’s contention that the failure of the court to require a lengthy and searching examination of the prosecutrix denied him a fair trial is without merit because the record does not reflect either, that the pros-ecutrix was inaccessible for an interview before trial, or that she was willing to submit to an interview. The defendant had the opportunity to interrogate the prosecu-trix at both the preliminary hearing and the suppression hearing. Hence, we are of the opinion that the trial court did not abuse its discretion by limiting the interview with the prosecutrix to ten minutes and one question.

In addition, the motion also presents the question of whether a trial judge may compel a witness to submit to an interview by counsel. This question has not been addressed by this Court, but other states hold that a trial judge may not compel a witness to submit to an interview unless the witness is willing to submit to the interview.

The rule in Massachusetts is that a witness may not be compelled to submit to an interview against his wish. In Commonwealth v. Carita, 356 Mass. 132, 249 N.E.2d 5 (1969) a witness was in custody and defense counsel desired to interview the witness. The Court outlined the procedure in such case as follows:

In practice, in such situations counsel for the defense should within an appropriate time file a motion to be allowed to interview the witness. The witness should thereafter be brought to court and instructed on his or her rights to consent or not to consent to an interview. A record should be kept of the proceedings. The answer of the witness will then determine whether an interview is to take place. If the answer is in the affirmative, a transcript of such interview may be taken in the discretion of the judge. See Commonwealth v. Doherty, 353 Mass. 197, 210-211, 229 N.E.2d 267. (356 Mass. at 142, 143, 249 N.E.2d at 11).

In Commonwealth v. Gibson, 357 Mass. 45, 255 N.E.2d 742, cert. denied 400 U.S. 837, 91 S.Ct. 75, 27 L.Ed.2d 70 (1970) information was solicited from two witnesses by defense counsel at which time the district attorney told them they did not have to talk with defense counsel unless they were willing. The Court stated:

We see nothing wrong here. The witnesses were not in protective custody (see Commonwealth v. Carita, 356 Mass. 132, 249 N.E.2d 5.) They were available for interview at other times and places subject to their willingness to be interviewed. Commonwealth v. McLaughlin, 352 Mass. 218, 224, 224 N.E.2d 444. (357 Mass. at 47, 255 N.E.2d at 743). (Emphasis Supplied).

In Commonwealth v. Pimental, 363 N.E.2d 1343 (Mass.1977) the appeals court of Massachusetts held that it was not error to deny defendant’s motion that he or his counsel be permitted to interview witnesses who would be called by the prosecution. The court noted that there was nothing to suggest that the prosecution had presented any obstacle to the defendant’s interviewing the witnesses and allowance of the motion might have resulted in depriving the witnesses of their rights to refuse to be interviewed.

The rule in Illinois is stated in People v. Touhy, 361 Ill. 332, 197 N.E. 849 (1935) as follows:

In fact, we know of no rule which would authorize the court to compel a witness to be examined in private by counsel for either side of a case, especially in the absence of the consent of the witness, and it is not intimated that Costner was either desirous or willing to be interrogated out of the presence of the court. There was no error in permitting the witness to testify. People v. Scott, 261 Ill. 165, 103 N.E. 617. [361 Ill. at 349, 197 N.E. at 857, 858].

See also, People v. Clark, 9 Ill.App.3d 998, 293 N.E.2d 666 (1973).

In State v. Wallack, 193 Iowa 941, 188 N.W. 131 (1922) the Supreme Court of Iowa held:

A motion was made by counsel for defendant for an order requiring such witnesses to submit to a private interview with defendant’s counsel, and the refusal to sustain such motion is alleged as error. Counsel cite no authority in support of their claim, nor do we believe such authority can be found. The court had no right, power, or authority to make such an order. He had no control over such witnesses, aside from their examination as witnesses in the regular manner and under the rules governing their examination as such. It was beyond the power of the court to require such witnesses to submit to any examination except in open court, and the overruling of such motion was proper and not error. [193 Iowa at 944, 188 N.W. at 133].

A defendant is entitled to access to prospective witnesses; however, this right exists coequally with the right of a witness to refuse to say anything. This the court failed to recognize. There is nothing in the record that suggests the prosecutrix was willing to answer questions of defense counsel. The prosecutrix was “directed to meet privately” with counsel for the defendant to answer a question that was improperly denied at the preliminary hearing. We can safely assume the witness would believe she would be bound to answer the question the same as if she was being questioned in court. The record does not indicate that the prosecutrix was advised that she did not have to submit to an interview unless she was willing. We hold that the trial judge did not have the authority to require the witness to submit to a private examination by defense counsel.

The defendant next contends that the failure of the state to produce tangible evidence denied him the right to a fair trial. On July 19, 1976, three weeks before trial, defendant filed a motion for discovery and inspection requesting the right to “examine, inspect, copy, photograph or make photostatic copies” of the items listed in footnote 1.

No complaint is made that the state failed to comply with Items A through I of the motion. The state had in its possession articles of clothing of both the defendant and prosecutrix, samples of hair of both the defendant and prosecutrix, samples of fiber from the carpet where the crime took place and samples of matter from the defendant’s clothing. Defendant contends that neither he nor the trial court could know whether these items may have been useful in his defense unless he had the opportunity to examine them before trial. It is noted that most of the items listed above were not introduced in evidence. This contention of defendant must be analyzed in the light of the rule announced by the United States Supreme Court controlling the duty of the state to submit tangible evidence to a defendant for examination and testing.

In United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976) the Court addressed the issue of the duty of the state to furnish evidence to a defendant before trial and held that evidence which is clearly supportive of a claim of innocence must be disclosed even in the absence of a specific request. The Court stated:

In many cases, however, exculpatory information in the possession of the prosecutor may be unknown to defense counsel. In such a situation he may make no request at all, or possibly ask for ‘all Brady material’ or for ‘anything exculpatory.’ Such a request really gives the prosecutor no better notice than if no request is made. If there is a duty to respond to a general request of that kind, it must derive from the obviously exculpatory character of certain evidence in the hands of the prosecutor. But if the evidence is so clearly supportive of a claim of innocence that it gives the prosecution notice of a duty to produce, that duty should equally arise even if no request is made. Whether we focus on the desirability of a precise definition of the prosecutor’s duty or on the potential harm to the defendant, we conclude that there is no significant difference between cases in which there has been merely a general request for exculpatory matter and cases, like the one we must now decide, in which there has been no request at all. [427 U.S. 106, 107, 96 S.Ct. 2399, 49 L.Ed.2d at 351, 352].

The Court further held that a prosecutor does not have a constitutional duty to routinely deliver his entire file to defense counsel, and established the standard of materiality as follows:

As the District Court recognized in this case, there are situations in which evidence is obviously of such substantial value to the defense that elementary fairness requires it to be disclosed even without a specific request. For though the attorney for the sovereign must prosecute the accused with earnestness and vigor, he must always be faithful to his client’s overriding interest that ‘justice shall be done.’ He is the ‘servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer.’ Berger v. United States, 295 U.S. 78, 88, 55 S.Ct. 629, 79 L.Ed. 1314. This description of the prosecutor’s duty illuminates the standard of materiality that governs his obligation to disclose exculpatory evidence.
On the one hand, the fact that such evidence was available to the prosecutor and not submitted to the defense places it in a different category than if it had simply been discovered from a neutral source after trial. For that reason the defendant should not have to satisfy the severe burden of demonstrating that newly discovered evidence probably would have resulted in acquittal. If the standard applied to the usual motion for a new trial based on newly discovered evidence were the same when the evidence was in the State’s possession as when it was found in a neutral source, there would be no special significance to the prosecutor’s obligation to serve the cause of justice.
On the other hand, since we have rejected the suggestion that the prosecutor has a constitutional duty routinely to deliver his entire file to defense counsel, we cannot consistently treat every nondisclosure as though it were error. It necessarily follows that the judge should not order a new trial every time he is unable to characterize a nondisclosure as harmless under the customary harmless-error standard. Under that standard when error is present in the record, the reviewing judge must set aside the verdict and judgment unless his ‘conviction is sure that the error did not influence the jury, or had but very slight effect.’ Kotteakos v. United States, 328 U.S. 750, 764, 66 S.Ct. 1239, 90 L.Ed. 1557. Unless every nondisclosure is regarded as automatic error, the constitutional standard of materiality must impose a higher burden on the defendant.
The proper standard of materiality must reflect our overriding concern with the justice of the finding of guilt. Such a finding is permissible only if supported by evidence establishing guilt beyond a reasonable doubt. It necessarily follows that if the omitted evidence creates a reasonable doubt that did not otherwise exist, constitutional error has been committed. This means that the omission must be evaluated in the context of the entire record. If there is no reasonable doubt about guilt whether or not the additional evidence is considered, there is no justification for a new trial. On the other hand, if the verdict is already of questionable validity, additional evidence of relatively minor importance might be sufficient to create a reasonable doubt. [427 U.S. at 110-113, 96 S.Ct. at 2401-02, 49 L.Ed.2d at 353, 354, 355].

Items J and K of the defendant’s motion for discovery constitute a general request within the meaning of the Agurs decision. The defendant contends, his examination of the tangible evidence, reports, tests, etc., might have disclosed exculpatory matter. In Agurs the Court stated, “the mere possibility that an item of undisclosed information might have helped the defense, or might have affected the outcome of the trial, does not establish ‘materiality’ in the constitutional sense.”

Applying the Agurs test to the case at bar, we are of the opinion that constitutional error was not committed. The record does not reveal that any of the evidence withheld was exculpatory. Evidence which might be considered as exculpatory was disclosed to the defendant within a reasonable time before trial for the defendant’s examination and study. This included an FBI laboratory report which was not furnished to either the prosecutor or the defendant until the day before the trial. This laboratory report contained test results of the clothing worn by the prosecutrix and the defendant. The report showed that fibers from the carpet where the crime took place and from the clothing of the victim were not found upon the clothing of the defendant. This exculpatory matter was submitted to the jury and defendant though his counsel was granted an interview with the FBI agent who testified about the laboratory analysis of the items he examined.

The defendant contends that had he been allowed an additional time to examine the tangible evidence such as the pistol, blood tests of defendant and the victim, carpet fibers, clothing worn by the defendant and the victim and the laboratory reports further exculpatory evidence might have been revealed. Many items such as the pistol, blood tests which showed the defendant and the victim had the same type blood, some articles of clothing of defendant and the victim and other items were not introduced in evidence by the state. This contention is without merit for two reasons. First, the fact that further examination might have revealed additional exculpatory evidence, is not sufficient under Agurs to give rise to a duty to require the prosecutor to disclose such matter upon a general request. Second and more significant, the trial court advised counsel for the defendant several times that the items did not appear on their face to contain exculpatory evidence, but if during the trial, it should develop that such items were exculpatory, reasonable time for examination and inspection was needed, the matter should at that time be brought to the Court’s attention for consideration. Following these offers of the trial court the defendant did not make a request for further examination, neither did he demonstrate the exculpatory nature of the tangible items not introduced in evidence.

For these reasons, we are of the opinion that the defendant was not denied his constitutional right to disclosure of evidence that might be exculpatory in possession of the state.

The next assignment of error is that the trial court erred in allowing an in-court identification of the defendant by the pros-ecutrix. On the day that the rape occurred the prosecutrix was shown numerous photographs from the files of the Clarksdale Police Department. However, the prosecutrix did not identify her assailant from those photographs. Three days later the prosecu-trix was shown more photographs that had not been placed in the mug books. Among these was a photograph of the defendant which was selected and identified by the prosecutrix as the assailant. Later that same day the prosecutrix was taken to the Clarksdale Police Department where she viewed the defendant through a one way mirror while he was in a room with a white male and a black female. This pretrial police station showup resulted in a second identification of the defendant by the pros-ecutrix.

The defendant claims that the in-court identification was the result of: (1) a highly suggestive photographic identification in which one or a very few number of photographs were used; (2) a highly suggestive police station showup in which the defendant was the only black male in the room; (3) knowledge by the prosecutrix that the defendant had taken and failed a lie detector test before the preliminary hearing in which she identified the defendant again; and (4) the extreme emotional distress of the victim who had been sedated at the time of her out-of-court identification. The defendant contends that the previous extrajudicial confrontations tainted the in-court identification which under the “totality of the circumstances,” were so “impermissibly suggestive as to give rise to a real and substantial likelihood of irreparable mis-identification.” Further the defendant contends that the out-of-court confrontations were “critical stages” of the pretrial proceedings against the defendant and as such he should have been afforded advice and assistance of counsel.

First, the defendant’s claim that the out-of-court confrontations violated his Sixth Amendment right to counsel is without merit because the right to counsel does not apply to pre-indictment lineups. Fells v. State, 345 So.2d 618 (Miss.1977); Cox v. State, 326 So.2d 794 (Miss.1976). Next, there is no factual basis in the record to support the defendant’s contention that knowledge of the result of the lie detector test or the sedation of the prosecutrix in any way influenced the prosecutrix during the out-of-court identifications. Further, the contention of the defendant that the first photographic identification was suggestive because one or a very few photographs were used is without merit because both Assistant Chief and Police Jimmy Carsley and the prosecutrix testified that several photographs were used during this photographic lineup.

The ultimate issue presented is whether the pretrial photographic lineup and the police station showup were so highly suggestive and prejudicial that they corrupted any subsequent in-court identification. The photographs exhibited to the prosecutrix at the time of the first identification are not included in the record. Officer Carsley stated that he used four or five photographs consisting of black males from eighteen to twenty-five years of age, including that of the defendant, from which a positive identification of the defendant was made. Hence, we are of the opinion that the pretrial photographic lineup was not suggestive.

However, we are of the opinion that the pretrial police station showup, in which the defendant was the only black male present, was unnecessarily suggestive. We now address the issue of whether, under the totality of the circumstances, the suggestive showup was sufficient to give rise to a substantial likelihood of irreparable misidentification to warrant the suppression of the in-court identification by the prosecutrix.

In a recent decision we discussed the factors to be considered in determining whether under the “totality of circumstances” an in-court identification was reliable. The factors discussed in Fells v. State, 345 So.2d 618 (Miss.1977) are applicable to the issue of whether an in-court identification is admissible following a suggestive out-of-court identification. In Fells, we quoted from Neil v. Biggers, infra, as follows:

When similarly confronted in Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972), the United States Supreme Court said:
It is, first of all, apparent that the primary evil to be avoided is ‘a very substantial likelihood of irreparable misidentification.’ Simmons v. United States, 390 U.S. [377], at 384, 88 S.Ct. [967] at 971, [19 L.Ed.2d 1247]. While the phrase was coined as a standard for determining whether an in-court identification would be admissible in the wake of a suggestive out-of-court identification, with the deletion of ‘irreparable’ it serves equally well as a standard for the admissibility of testimony concerning the out-of-court identification itself. It is the likelihood of misidentification which violates a defendant’s right to due process . . . Suggestive confrontations increase the likelihood of misidentification .
What is less clear from our cases is whether . . . unnecessary suggestiveness alone requires the exclusion of evidence .
We turn, then, to the central question, whether under the ‘totality of circumstances’ the identification was reliable even though the confrontation procedure was suggestive. As indicated by our cases, the factors to be considered in evaluating the likelihood of misidentification include the opportunity of the witness to view the criminal at the time of the crime [Mrs. Johnson was face-to-face with the robber separated only by a counter in a well-lighted store], the witness’ degree Of attention, the accuracy of the witness’ prior description of the criminal [Mrs. Johnson missed his true height by one inch and weight by five pounds; the description of his clothing was exact], the level of certainty demonstrated by the witness at the confrontation [Mrs. Johnson was ‘positive’ and unwavering], and the length of time between the crime and confrontation [approximately thirty minutes] . . . . (409 U.S. at 198-199, 93 S.Ct. at 381-382, 34 L.Ed.2d at 410-411). [345 So.2d at 620, 621].

In Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977), the Court was confronted with the same issue addressed in Neil v. Biggers, supra, that is, the effect of a suggestive out-of-court identification. Choosing to adopt the “totality of the circumstances” approach the Court discussed two approaches to this issue and stated:

Since the decision in Biggers, the courts of appeals appear to have developed at least two approaches to such evidence. See Pulaski, Neil v. Biggers: The Supreme Court Dismantles the Wade Trilogy’s Due Process Protection, 26 Stan.L.Rev. 1097, 1111-1114 (1974). The first, or per se approach, employed by the Second Circuit in the present case, focuses on the procedures employed and requires exclusion of the out-of-court identification evidence, without regard to reliability, whenever it has been obtained through unnecessarily suggested confrontation procedures. The justifications advanced are the elimination of evidence of uncertain reliability, deterrence of the police and prosecutors,and the stated ‘fair assurance against the awful risks of mis-identification.’ 527 F.2d at 371. See Smith v. Coiner, 473 F.2d 877, 882 (CA4), cert. denied sub nom. Wallace v. Smith, 414 U.S. 1115, 94 S.Ct. 848, 38 L.Ed.2d 743 (1973).
The second, or more lenient, approach is one that continues to rely on the totality of the circumstances. It permits the admission of the confrontation evidence if, despite the suggestive aspect, the out-of-court identification possesses certain features of reliability. Its adherents feel that the per se approach is not mandated by the Due Process Clause of the Fourteenth Amendment. This second approach, in contrast to the other is ad hoc and serves to limit the societal costs imposed by a sanction that excludes relevant evidence from consideration and evaluation by the trier of fact. See United States ex rel. Kirby v. Sturges, 510 F.2d 397, 407-408 (CA7; opinion by Judge, now Mr. Justice Stevens), cert. denied, 421 U.S. 1016, 95 S.Ct. 2424, 44 L.Ed.2d 685 (1975); Stanley v. Cox, 486 F.2d 48 (CA4), cert. denied sub nom. Stanley v. Slayton, 416 U.S. 958, 94 S.Ct. 1975, 40 L.Ed.2d 309 (1973).
The standard, after all, is that of fairness as required by the Due Process Clause of the Fourteenth Amendment. See United States v. Lovasco, 431 U.S. 783, 790, 97 S.Ct. 2044, 2049, 52 L.Ed.2d 752 (1977); Rochin v. California, 342 U.S. 165, 170-172, 72 S.Ct. 205, 208-209, 96 L.Ed. 183, 25 A.L.R.2d 1396 (1952). Stovall, with its reference to ‘the totality of the circumstances,’ 388 U.S. at 302, 87 S.Ct. 1967, 18 L.Ed.2d 1199, and Biggers, with its continuing stress on the same totality, 409 U.S., at 199, 93 S.Ct. 375, 34 L.Ed.2d 401, did not, singly or together, establish a strict exclusionary rule or new standard of due process. Judge Leven-thal, although speaking pre-Biggers and of a pre- Wade situation, correctly has described Stovall as protecting an eviden-tiary interest and, at the same time, as recognizing the limited extent of that interest in our adversary system.
We therefore conclude that reliability is the linchpin in determining the admissibility of identification testimony for both pre- and post-Stovall confrontations. The factors to be considered are set out in Biggers, 409 U.S., at 199-200, 93 S.Ct., at 382, 34 L.Ed.2d 401. These include the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation. Against these factors is to be weighed the corrupting effect of the suggestive identification itself. (432 U.S. at 110, 111, 113, 114, 97 S.Ct. at 2250, 2251, 2252, 2253, 53 L.Ed.2d at 151, 153, 154).

We apply the analysis to the facts in this case as follows:

1.The victim had the opportunity to view her assailant. She testified that as the assailant entered the office she looked directly at his face at a time when he was not wearing a mask. Later, during the commission of the rape itself, she testified that “he took the mask off and I happened to just open my eyes when he was fixing to pull it down, but I got another good look at him.” During this second occasion the defendant was approximately one foot away from the victim.

2. This is not a case involving a casual or passing observer but instead the observance by the victim of the assailant involving a great deal of attention.

3. After the rape, the victim gave an accurate description of the assailant as follows: black male, medium height, slim build, clean shaven, medium hair, big nose, fat lips, spoke with a soft voice, had no body odor which she could recognize, wearing a blue jean jacket with designs on it. This description given by the victim before the photographic and police station identification is nearly identical to the biographical description of the defendant.

4. The victim displayed in both her out-of-court and in-court identifications a strong level of certainty. This is demonstrated by the fact that during the first photographic lineup when the defendant’s photograph was not used, the victim did not make an identification. During the second photographic lineup when the defendant’s photograph was used, the victim made a positive and unequivocal identification. The victim’s in-court identification was equally unequivocal.

5. The time between the crime and the confrontations was three days. This lapse of time is not so remote as to impair the reliability of the out-of-court identification.

In viewing the facts enumerated above, the likelihood that the suggestive pretrial police station showup resulted in an irreparable misidentification is negligible. The trial court did not abuse its discretion in overruling the motion to suppress the in-court identification.

The defendant has assigned as error numerous other matters which are without merit and do not warrant discussion.

AFFIRMED.

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


text:
    Robert Lee WILSON v. STATE of Mississippi.
    No. 50466.
    Supreme Court of Mississippi.
    May 24, 1978.
    Rehearing Denied July 12, 1978.
    Gene Brown, Meridian, for appellant.
    A. F. Summer, Atty. Gen. by Carolyn B. Mills, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Lauderdale County; Lester F. Williamson, Judge.

Before ROBERTSON, P. J., LEE and BOWLING, JJ., and J. C. FEDUCCIA, Commissioner.

AFFIRMED.