author: TATE, Justice.

text:
    STATE of Louisiana v. Christopher L. DILIBERTO.
    No. 61777.
    Supreme Court of Louisiana.
    Sept. 5, 1978.

      Arthur A. Lemann, III, New Orleans, for defendant-respondent.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Christopher R. Philipp, Asst. Dist. Atty., for plaintiff-relator.
   TATE, Justice.

The trial court granted the defendant’s motion for the state to disclose the name of a confidential informant. On the state’s application, we granted certiorari to review this ruling. 356 So.2d 435 (1977).

In an affidavit used to secure a search warrant for evidence of illegal gambling, the confidential informant had supplied the initial lead. According to the affidavit, this lead had been followed by police surveillance (which developed no incriminating evidence) and then by two incidents in which the informant had placed bets with the accused, with his telephone conversations monitored and overheard by the police officer affiants.

The defendant filed a motion for the state to disclose the confidential informer’s name. The purpose of the disclosure sought is stated as a general allegation that it is needed for the defendant to traverse the truthfulness of the officers’ allegations in the affidavit. See State v. Tassin, 343 So.2d 681 (La.1977) and decisions therein cited.

Without an evidentiary hearing, but apparently solely on the basis of argument by both counsel, the district court granted the motion.

The grant of the motion to disclose was, at the least, premature.

When the issue is not guilt or innocence, but instead the probable cause for an arrest or search, police officers need not invariably be required to disclose an informant’s identity, if the trial judge is convinced, by evidence submitted in open court and subject to cross-examination, that the officers did rely in good faith upon credible information supplied by a confidential informant. McCray v. Illinois, 386 U.S. 300, 305, 87 S.Ct. 1056, 1059, 18 L.Ed.2d 62 (1967).

Further, when disclosure is sought for purposes of a motion to suppress, more than a generalized need must be asserted. Id at 386 U.S. 306-07, 87 S.Ct. 1060. See also the Model Code of Pre-Arraignment Procedure, Section SS 290.3(1)(b) (party contesting the good faith of state testimony of probable cause should set forth substantial basis for questioning it), SS 290.4(a) (confidential informant not necessarily required to be revealed where evidence seized by virtue of a search warrant) (American Law Institute, 1975).

For these reasons, and because the first-hand showing by the officers of their own observations and hearing sufficiently in itself indicates probable cause, the defendant has not met his burden of proving the exceptional circumstances, State v. Dotson, 260 La. 471, 256 So.2d 594, 606 (1971), that require pre-trial disclosure by the state of the identity of a confidential informer who supplied information leading to probable cause for issuance of a search warrant.

Additionally, we note that the state might properly be required to disclose the identity of the confidential informant, if it intends to introduce evidence at the merit-trial of an incident at which the informant was present or in which the informant set up or participated in the crime. Dotson, at 256 So.2d 607. However, the state has agreed to stipulate that no evidence whatsoever concerning the informant’s activities prior to the date of the search warrant will be introduced in evidence at the trial on the merits. In view of that stipulation, disclosure need not be afforded for the purposes of fair preparation of the merit-defense. State v. Helmke, 350 So.2d 1191 (La.1977).

Accordingly, we reverse the ruling of the district court requiring disclosure at this time of the confidential informant’s identity, and we remand this case to the trial court for further proceedings in accordance with law.

REVERSED AND REMANDED.

SANDERS, C. J., concurs.

DIXON, J., dissents.


source: Caselaw Access Project

author: SANDERS, Chief Justice.

license: Public Domain

text:
    Lawlest J. LeBLANC v. Audrey Weibelt, wife of Lawlest J. LeBLANC.
    No. 61800.
    Supreme Court of Louisiana.
    Sept. 5, 1978.
    Arthur S. Mann, III, New Orleans, for defendant-applicant.
    Aubrey E. Pate, Kenner, for plaintiff-respondent.
   SANDERS, Chief Justice.

The issue presented is a wife’s entitlement to alimony after divorce.

Mr. LeBlanc sued his wife for divorce on the ground that they lived separate and apart for two years without reconciliation. See LSA-R.S. 9:301. Mrs. LeBlanc filed a reconventional demand seeking alimony.

The trial court granted the husband a divorce and, finding the wife free from fault, awarded her $125 per month alimony. The Court of Appeal reversed in part, denying her alimony. It found that her refusal to have sexual relations with her husband constituted fault. La.App., 354 So.2d 704 (1978). We granted writs to review this judgment. La., 356 So.2d 1005 (1978).

Mr. LeBlanc testified that he left his wife because he was dissatisfied with married life, specifically with Mrs. LeBlanc’s refusal to have sexual relations with him for two years, her many requests that he leave, and her telling him she no longer loved him and that he was not a good father to her children.

Mrs. LeBlanc denied telling her husband that she did not love him or that she asked him to leave. She further testified that generally he had good relations with his stepchildren.

Neither counsel interrogated Mrs. Le-Blanc specifically about sexual relations with her husband. She, however, testified that the marriage was a happy one, with no special problems at the time of the separation. The wife’s two daughters, who lived in the home during the marriage, corroborated their mother’s testimony that they observed no friction or problems of a serious nature.

When a husband obtains a divorce on the ground of voluntary separation, a wife is entitled to alimony only if she is free from fault and is without sufficient means for her support. LSA-C.C. Art. 160.

Recently, in Pearce v. Pearce, La., 348 So.2d 75 (1977), this Court set forth the applicable principles as follows:

“We have held that, under this statute respecting an award of alimony to a wife without ‘fault,’ the word ‘fault’ contemplates conduct or substantial acts of commission or omission by the wife violative of her marital duties and responsibilities. A wife is not deprived of alimony after divorce simply because she was not totally blameless in the marital discord. Vicknair v. Vicknair, 237 La. 1032, 112 So.2d 702 (1959); Davleson v. Trapp, 223 La. 776, 66 So.2d 804 (1953); Breffeilh v. Breffeilh, 221 La. 843, 60 So.2d 457 (1952); Adler v. Adler, 239 So.2d 494 (La.App. 4th Cir. 1970). To constitute fault, a wife’s misconduct must not only be of a serious nature but must also be an independent contributory or proximate cause of the separation. Kendrick v. Kendrick, 236 La. 34, 106 So.2d 707 (1958). The question of a wife’s fault under the statute providing for alimony when a wife has not been at fault and has not sufficient means for her support is a factual one. Morgan v. Morgan, 260 So.2d 336 (La.App. 4th Cir. 1972). We have recognized that a trial court’s findings of fact on the issue of a wife’s ‘fault’ will not be disturbed on appeal unless found to be manifestly erroneous. Williams v. Williams, 215 La. 839, 41 So.2d 736 (1949); Fletcher v. Fletcher, 212 La. 971,34 So.2d 43 (1948). In the area of domestic relations, much discretion must be vested in the trial judge and particularly in evaluating the weight of evidence which is to be resolved primarily on the basis of the credibility of witnesses. The trial judge having observed the demeanor of the witnesses is in the better position to rule on their credibility. Trosclair v. Trosclair, 337 So.2d 1216 (La.App. 1st Cir. 1976). The factual findings of the trial court are therefore to be accorded very substantial weight on review. Gilberti v. Gilberti, 338 So.2d 971 (La.App. 4th Cir. 1976).”

In Canter v. Koehring Company, La., 283 So.2d 716 (1973), this Court held:

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

In his reasons for judgment, the trial judge stated:

“From the testimony, the court cannot conclude that Mrs. Lawlest LeBlanc is at fault for this couple’s separation.”

At trial, the husband’s testimony concerning the denial of sexual relations was general in nature. It was contradicted by the testimony of his wife and her daughters that the marriage was a normal one with no special problems. In enumerating his reasons for leaving the domicile in his divorce petition, the husband made no reference to sexual rejection. It is obvious that the factual findings here depend largely upon the credibility of witnesses. We find no adequate basis in the record to disturb the finding of the trial judge that the wife was free from fault that would disqualify her from alimony.

The evidence also supports the trial judge’s alimony award of $125 per month.

For the reasons assigned, the judgment of the Court of Appeal denying the wife alimony is reversed and set aside, and the judgment of the district court awarding her alimony is reinstated and made the judgment of this Court.


author: SUMMERS, Justice. DENNIS, Justice,

text:
    STATE of Louisiana v. Ronald D. LEGENDRE.
    No. 61719.
    Supreme Court of Louisiana.
    Sept. 5, 1978.
    Rehearing Denied Oct. 5, 1978.
    Lee C. Kantrow, Kantrow, Spaht, Weaver & Walter, Baton Rouge, for defendant-relator.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie B. Brown, Dist. Atty., Marilyn C. Castle, Asst. Dist. Atty., for plaintiff-respondent.
   SUMMERS, Justice.

When Ronald D. Legendre was charged by the District Attorney of East Baton Rouge with the crime of battery with a dangerous weapon upon Michael White, he pled not guilty and filed a motion for bill of particulars asking what was the dangerous weapon he allegedly used. The State replied “Concrete on Parking Lot.” Whereupon defendant filed a motion to quash, alleging that the conviction on this charge would not meet the requirements of aggravated battery as defined by Article 34 of the Criminal Code, in that the alleged aggravated battery was not committed with a dangerous weapon. The motion to quash was denied, the trial court being of the opinion that whether a dangerous weapon was involved was a question of fact to be decided by the jury. Certiorari was granted on defendant’s application.

“Aggravated battery is a battery committed with a dangerous weapon.” La.Rev. Stat. 14:34. As defined in the Criminal Code “‘Dangerous weapon’ includes any gas, liquid or other substance or instrumentality, which, in the manner used, is calculated or likely to produce death or great bodily harm.” La.Rev.Stat. 14:2(3).

This bill of information charged the offense in the short form approved by Article 465 of the Code of Criminal Procedure. A recital of the details of the offense is available by a bill of particulars. In this instance the detailed description of the alleged dangerous weapon was furnished in response to a motion for bill of particulars. When the State furnished this information, the parking lot became the alleged dangerous weapon necessary to constitute an essential element of the crime. As thus amended the parking lot became an allegation of the indictment in the sense that if its inclusion shows the indictment to be defective the indictment may be quashed. La.Code Crim.Pro. art. 485.

The question, then, is whether the indictment as thus constituted charges a valid offense. If it does not it is a defective indictment and its invalidity may be declared by a ruling on a motion to quash, for a motion to quash may be based on the ground that the indictment fails to charge an offense which is punishable under a valid statute. La.Code Crim.Pro. arts. 532(1) and (5), 485.

To have a valid trial it is sacramental that an offense punishable under a valid statute or ordinance be charged. And when an indictment is defective it should be quashed when it fails to charge the offense intended to be charged in the manner required by law. It will not do to base an indictment for a serious offense, as in this case, upon an allegation of fact which cannot conceivably satisfy an essential element of the crime, and compel the accused to withstand the rigors of a jury trial with no expectation that a conviction can be supported by such an allegation. We believe this to be the situation here.

By the plain words of the article defining dangerous weapon it includes any gas, liquid or other substance or instrumentality used in a manner calculated or likely to produce death or great bodily harm. A dangerous weapon is not by that definition or any other an expanse of concrete forming a parking lot; just as it is not a graveled area or the turf in a meadow. We realize that the accused could use the concrete of the parking lot by striking the victim a blow which would cause him to fall upon the concrete and sustain injuries. But this is not “use” of a “weapon”. No other “use” of the concrete parking lot has been suggested which would produce death or great bodily harm.

Obviously by relying upon a concrete parking lot as a dangerous weapon, the State is seeking to convert this offense into aggravated battery. Without a dangerous weapon involved the offense would necessarily be one of a lesser grade. In doing so the State is attempting to extend the article of the Code so as to create a crime not provided for therein, contrary to the spirit and letter of the law. This is not genuine construction of the term dangerous weapon as contemplated by the statute defining aggravated battery. According to the fair import of the words, in their usual sense dangerous weapon does not mean a concrete parking lot. La.Rev.Stat. 14:3. Consequently, the State has not charged a crime in the manner required by law.

For the reasons assigned, the ruling of the trial judge denying the motion to quash is reversed and set aside. The case is remanded to the trial court for appropriate proceedings not inconsistent with this opinion.

DENNIS, J., dissents and assigns reasons.

DENNIS, Justice,

dissenting.

I respectfully dissent.

The opinion of the Court apparently restricts the meaning of dangerous weapon to exclude any instrumentality not commonly known as a weapon. In my opinion the majority’s definition is contrary to the legislative intention to define a dangerous weapon in terms of how the instrumentality was actually used and not according to preconceived notions based on customary usages.


text:
    STATE of Louisiana v. Byron COULON and Aaron Payton.
    No. 62442.
    Supreme Court of Louisiana.
    July 3, 1978.
   In re: Aaron Payton, applying for supervisory and remedial writs. Parish of Orleans.

Writ granted and case is remanded for further proceedings. See our decision in State v. Payton and Coulon, No. 62,388, 361 So.2d 866, 1978.


text:
    STATE of Louisiana v. Kevin SEWARD.
    No. 62384.
    Supreme Court of Louisiana.
    July 3, 1978.
   In re: Kevin Seward applying for stay order. Orleans Parish.

Writ denied and stay order recalled. See our decision in State v. Payton and Coulon, 361 So.2d 866.


author: DENNIS, J.,

text:
    John T. SEALE v. James David CALDWELL and Jerome K. Post, Jr.
    No. 62769.
    Supreme Court of Louisiana.
    Aug. 1, 1978.
   In re: John T. Seale, applying for certio-rari, or writ of review, to the Court of Appeal, Second Circuit. Parish of Madison. 360 So.2d 1197.

Writ denied. No error of law.

DENNIS, J.,

is of the opinion the writ should be granted to afford full hearing and review of the serious questions of constitutional and statutory law raised by this and other election disputes pending throughout the state.


text:
    Walter L. COOK v. Cecil P. CAMPBELL II.
    No. 62762.
    Supreme Court of Louisiana.
    Aug. 1, 1978.
   In re: Walter L. Cook applying for writ of review and certiorari. Parish of Bossier. 360 So.2d 1193.

Writ denied. We find no error of law in the reasons stated by the Court of Appeal.

DENNIS, J.,

is of the opinion the writ should be granted to review and afford full hearing on the serious questions of constitutional and statutory law raised by this and other election disputes pending throughout the state.


text:
    STATE of Louisiana In the Interest of Russell GIANGROSSO, Lonnie Gros and Scott Hood.
    No. 62835.
    Supreme Court of Louisiana.
    Sept. 1, 1978.
   In re: State of Louisiana, through Aubert J. Talbot, District Attorney, applying for writs of certiorari, prohibition, mandamus and for a stay order. Parish of Ascension. 361 So.2d 259.

Granted.

The petition of the relator in the above entitled and numbered case having been duly considered,

It is ordered that a writ of certiorari issue herein, directing the Honorable A. J. Kling, Jr., Judge of the Ascension Parish Court for the Parish of Ascension, to transmit to the Supreme Court of Louisiana, on or before the 15th day of September, 1978, the record in duplicate, or a certified copy of the record in duplicate, of the proceedings complained of by the relator herein, to the end that the validity of said proceedings may be ascertained.

It is further ordered that the aforesaid Judge of said Court and the respondent through counsel shall show cause, in this court, on a day to be fixed by this court, 1978, at 10 o’clock A.M., why the relief prayed for in the petition of the relator should not be granted.


text:
    Cleo Allen BUTLER, Individually and Cleo Allen Butler, For and on Behalf of her minor daughter, Michelle Butler v. FLINT-GOODRIDGE HOSPITAL OF DILLARD UNIVERSITY, Dr. Jerome Medley and Dr. Warren P. McKenna, Jr.
    No. 61695.
    Supreme Court of Louisiana.
    Sept. 1, 1978.
   In re: Cleo Allen Butler et al. applying for certiorari, or writ of review to the Court of Appeal, Fourth Circuit. Parish of Orleans. 354 So.2d 1070.

Writ denied. The validity of the recovery limitation is not before the court at this time.


text:
    J. W. HAWTHORNE et ux. v. J. O. SLAYDON et al.
    No. 62637.
    Supreme Court of Louisiana.
    Sept. 1, 1978.
   In re: James Andrew Slaydon applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of St. Tammany.

Writ denied.


text:
    STATE of Louisiana Through the DEPARTMENT OF HIGHWAYS v. Lloyd Rodney CONSTANT et al.
    No. 62625.
    Supreme Court of Louisiana.
    Sept. 1, 1978.
   In re: Lloyd Rodney Constant et al., applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of Lafourche. 359 So.2d 666.

Granted.

It is ordered that the writ of review issue; that the Court of Appeal send up the record in duplicate of the case; and that counsel for plaintiff and defendant be notified.


text:
    STATE of Louisiana, Through the DEPARTMENT OF HIGHWAYS v. Lloyd Robert CONSTANT et al.
    No. 62628.
    Supreme Court of Louisiana.
    Sept. 1, 1978.
   In re: State of Louisiana, through the Department of Highways, applying for cer-tiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of Lafourche.

Writ denied.

CALOGERO and DENNIS, JJ., would grant the writ.


text:
    John Elbert STROUD v. NORTHWESTERN NATIONAL INSURANCE COMPANY.
    No. 62578.
    Supreme Court of Louisiana.
    Sept. 1, 1978.
   In re: John Elbert Stroud, applying for certiorari, or writ of review, to the Court of Appeal, Second Circuit. Parish of Winn. 360 So.2d 528.

Writ denied.


text:
    John T. D’ANTONI v. Edward EZZELL.
    No. 62666.
    Supreme Court of Louisiana.
    Sept. 1, 1978.
   In re: Edward Ezzell, applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Orleans. 360 So.2d 262.

Writ denied.


text:
    Edgar GIBSON v. EXXON CORPORATION.
    No. 62657.
    Supreme Court of Louisiana.
    Sept. 1, 1978.
   In re: Edgar Gibson, applying for certio-rari, or writ of review, to the Court of Appeal, First Circuit. Parish of East Baton Rouge. 360 So.2d 230.

Writ denied.


author: TATE, J.,

text:
    Succession of Margaret R. MOUSTIER, widow of Louis R. Moustier.
    No. 62655.
    Supreme Court of Louisiana.
    Sept. 1, 1978.
   In re: John D. Lambert, applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Orleans. 359 So.2d 1043.

Writ denied.

DIXON, J., and CALOGERO, J., would grant the writ.

TATE, J.,

concurs, because he believes the attorneys may still have their day in court, not being parties to the opposition to the tableaus.


text:
    Succession of Rosario GUERCIO.
    No. 62661.
    Supreme Court of Louisiana.
    Sept. 1, 1978.
   In re: Mrs. Mike Guercio Montalbano, Mrs. Nicholas Guercio Montalbano, and James Guercio Rutter, applying for certio-rari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Orleans. 359 So.2d 996.

Writ denied.

SANDERS, C. J., would grant as to assignments 2 and 5.

CALOGERO, J., would grant the writ.


text:
    BANK OF LOUISIANA IN NEW ORLEANS v. Steven J. CHARIA.
    No. 62440.
    Supreme Court of Louisiana.
    Sept. 1, 1978.
   In re: Steven J. Charia, applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Orleans. 359 So.2d 724.

Writ denied: The result is correct.


text:
    HAUGHTON ELEVATOR DIVISION, RELIANCE ELECTRIC CORP. v. STATE of Louisiana, Through DIVISION OF ADMINISTRATION.
    No. 62649.
    Supreme Court of Louisiana.
    Sept. 1, 1978.
   In re: Haughton Elevator Division, Reliance Electric Co., applying for certiorari, or writ of review, to the'Court of Appeal, First Circuit. Parish of East Baton Rouge. 359 So.2d 693.

Granted.

It is ordered that the writ of review issue; that the Court of Appeal send up the record in duplicate of the case; and that counsel for plaintiff and defendant be notified.


text:
    Bobby BOLIN et ux. v. NATIONAL TEA COMPANY.
    No. 62672.
    Supreme Court of Louisiana.
    Sept. 1, 1978.
   In re: Bobby J. Bolin and Ethel Fannette Godwin Bolin, applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of East Baton Rouge. 359 So.2d 690.

Writ denied.


text:
    Hugh H. ADAMS et al. v. STATE of Louisiana, Through DEPARTMENT OF HIGHWAYS. Patricia Adams BERGERON v. STATE of Louisiana, Through DEPARTMENT OF HIGHWAYS.
    No. 62634.
    Supreme Court of Louisiana.
    Sept. 1, 1978.
   In re: Hugh H. Adams, Individually, and as Natural Tutor of his minor son, Patrick Dean Adams, Roger Dale Adams, Hugh Adams, Jr., Cecile Kent Adams, and Patricia Adams Bergeron, applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of Lafourche. 359 So.2d 681.

Writ denied.


text:
    Succession of Luke M. DANOS.
    No. 62651.
    Supreme Court of Louisiana.
    Sept. 1, 1978.
   In re: Mrs. Enola Danos Autin applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of Lafourche. 359 So.2d 679.

Writ denied.

SUMMERS, J., would grant a writ.


text:
    Warren J. TULLIER, Sr., et al. v. TANSON ENTERPRISES, INC., et al.
    No. 62617.
    Supreme Court of Louisiana.
    Sept. 1, 1978.
   In re: Warren J. Tullier, Sr., et al., applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of East Baton Rouge.

Writ denied.

CALOGERO and DENNIS, JJ., vote to grant the writ.


text:
    Warren J. TULLIER, Sr., et al. v. TANSON ENTERPRISES, INC., et al.
    No. 62636.
    Supreme Court of Louisiana.
    Sept. 1, 1978.
   In re: Tanson Enterprises, Inc., applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of East Baton Rouge. 359 So.2d 654.

Writ granted.

It is ordered that the writ of review issue; that the Court of Appeal send up the record in duplicate of the case; and that counsel for plaintiff and defendant be notified.


text:
    GERTRUDE GARDNER, INC. v. Shirley McNAMARA, Secretary, Department of Revenue, etc.
    No. 62631.
    Supreme Court of Louisiana.
    Sept. 1, 1978.
   In re: Gertrude Gardner, Inc., applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of East Baton Rouge. 359 So.2d 644.

Writ denied.


text:
    Benton J. GUIDRY, as Administrator of the Estate of his minor son, David W. Guidry v. AETNA CASUALTY AND SURETY COMPANY.
    No. 62632.
    Supreme Court of Louisiana.
    Sept. 1, 1978.
   In re: Benton J. Guidry, as Administrator of the Estate of his minor son, David W. Guidry, applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of East Baton Rouge. 359 So.2d 637.

Writ denied. The result is correct.


text:
    Victor and Marie PERKINS v. Henry DESROCHES and Metairie Ford, Inc.
    No. 62658.
    Supreme Court of Louisiana.
    Sept. 1, 1978.
   In re: Victor and Marie Perkins, applying for certiorari, or writ of review to the Court Parish of St. of Appeal, Fourth Circuit. Bernard. 359 So.2d 323.

Writ denied.

SANDERS, C. J., and SUMMERS, J., would grant the writ.


text:
    Donald Wayne KING et al. v. LOUSTEAU AUTO SALES, INC., et al.
    No. 62675.
    Supreme Court of Louisiana.
    Sept. 1, 1978.
   In re: Donald Wayne King et al., applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of St. John the Baptist. 359 So.2d 320.

Denied.

DIXON, J., would grant the writ.


text:
    Howard ROMERO v. Philip D. SUNSERI.
    No. 62654.
    Supreme Court of Louisiana.
    Sept. 1, 1978.
   In re: Philip D. Sunseri, applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Orleans. 359 So.2d 305.

Writ denied.


text:
    Lewis A. GIRAUD, Mrs. Elvira Louise Wiener Giraud, Mrs. Corinne Rotge Panquerne, Gerald L. Schroeder, Decatur Realty Corporation and Thomas L. Giraud v. CITY OF NEW ORLEANS and the Hon. Henry Simmons, Director of the Department of Finance of the City of New Orleans as Tax Collector of the City of New Orleans. DECATUR REALTY CORPORATION v. CITY OF NEW ORLEANS.
    No. 62670.
    Supreme Court of Louisiana.
    Sept. 1, 1978.
   In re: Lewis A. Giraud, Mrs. Elvira Louise Wiener Giraud, Mrs. Corinne Rotge Panquerne, Decatur Realty Corporation and Henry Bermingham, applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Orleans. 359 So.2d 294, 346 So.2d 1113.

Writ denied.


text:
    S. J. CHARIA, d/b/a S. J. Charia & Company and Hartford Fire Insurance Co. v. Russell L. STANLEY, Oscar Foland, Jewel Aigner Wainwright, Maurice Arnod Granet, Maria K. Granet, Henry L. Granet, Nicole S. Friedlander and Mau Mar, Inc., and Carrollton Lumber & Wrecking Co., Inc., its agents, et al.
    No. 62669.
    Supreme Court of Louisiana.
    Sept. 1, 1978.
   In re: S. J. Charia and Hartford Fire Insurance Company, applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Orleans. 359 So.2d 291.

Writ denied. Under the facts of this case the result is correct.


text:
    Raymond UGULANO v. ALLSTATE INSURANCE COMPANY.
    No. 62664.
    Supreme Court of Louisiana.
    Sept. 1, 1978.
   In re: Raymond Ugulano, applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Jefferson. 359 So.2d 318.

Granted.

It is ordered that the writ of review issue; that the Court of Appeal send up the record in duplicate of the case; and that counsel for plaintiff and defendant be notified.


text:
    Donnelly Glasscock MILLER et al. v. Leon Nick LaFRANCE. Mrs. Patricia GLASSCO v. Leon Nick LaFRANCE.
    No. 62660.
    Supreme Court of Louisiana.
    Sept. 1, 1978.
   In re: Donnelly Glasscock Miller, Macil Glasscock Parker, Lona Glasscock deBerry, L. J. Glasscock Cooper, Ivan W. Glasscock, Imer Glasscock, Clara Bell Glasscock Pilgrim, and Mrs. Patricia Glassco, applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit Parish of Plaquemines. 359 So.2d 328.

Writ denied.


text:
    Salvadore BIONDOLILLO, Sr. v. GEOSOURCE, INC., et al.
    No. 62679.
    Supreme Court of Louisiana.
    Sept. 1, 1978.
   In re: Geosource, Inc., (Hunt Shipyard) and Commercial Union Insurance Co., applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Jefferson. 359 So.2d 286.

Writ denied.

MARCUS, J., would grant a writ.


text:
    Donald Lee THOMAS v. PEPSI-COLA GENERAL BOTTLERS, INC.
    No. 62674.
    Supreme Court of Louisiana.
    Sept. 1, 1978.
   In re: Pepsi-Cola General Bottlers, Inc., applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Jefferson. 359 So.2d 283.

Writ denied.


text:
    Cynthia Thomas GANT v. FLINT-GOODRIDGE HOSPITAL OF DILLARD UNIVERSITY and Argonaut-Southwest Ins. Co.
    No. 62688.
    Supreme Court of Louisiana.
    Sept. 1, 1978.
   In re: Cynthia Thomas Gant, applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Orleans. 359 So.2d 279.

Not considered. Not timely filed.


text:
    STATE of Louisiana v. Harry O. CRAMER.
    No. 62645.
    Supreme Court of Louisiana.
    Sept. 1, 1978.
   In re: Harry O. Cramer, applying for remedial writ. Parish of Orleans. 358 So.2d 1277.

Writ denied.

DIXON, J., would grant the writ.


text:
    STATE of Louisiana v. Harry O. CRAMER.
    No. 62604.
    Supreme Court of Louisiana.
    Sept. 1, 1978.
   In re: Harry 0. Cramer, applying for writ of habeas corpus. Parish of Orleans. 358 So.2d 1277.

Not considered. Application has not first been filed in the district court.


text:
    STATE of Louisiana v. John P. MIRANDA, a/k/a John P. Regan.
    No. 62606.
    Supreme Court of Louisiana.
    Sept. 1, 1978.
   In re: John P. Miranda, a/k/a John P. Regan, applying for writ of mandamus. Parish of Orleans. 357 So.2d 557.

Writ denied.


text:
    STATE of Louisiana v. Kerry NETTLETON, Larry Nettleton, and Terry Nettleton.
    No. 62491.
    Supreme Court of Louisiana.
    Sept. 1, 1978.
   In re: Kerry Nettleton, Larry Nettleton and Terry Nettleton, applying for writ of certiorari and review. Parish of Terre-bonne.

Granted.

The petition of the relator in the above entitled and numbered case having been duly considered,

It is ordered that a writ of certiorari issue herein, directing the Honorable Wil-more J. Broussard, Jr., Judge of the 32nd Judicial District, Court for the Parish of Terrebonne, to transmit to the Supreme Court of Louisiana, on or before the 15th day of September, 1978, the record in duplicate, or a certified copy of the record in duplicate, of the proceedings complained of by the relator herein, to the end that the validity of said proceedings may be ascertained.

It is further ordered that the aforesaid Judge of said Court and the respondent through counsel shall show cause, in this court, on a date to be fixed by this Court, why the relief prayed for in the petition of the relator should not be granted.


text:
    STATE of Louisiana ex rel. Ulyses SMITH v. STATE of Louisiana.
    No. 61679.
    Supreme Court of Louisiana.
    Sept. 1, 1978.
   In re: Ulyses Smith, applying for writ of mandamus. Parish of Jefferson.

Since the transcription of the prior plea and conviction is unavailable, an evidentia-ry hearing is ordered to determine its validity.


text:
    STATE of Louisiana ex rel. James E. WILLIAMS v. C. Paul PHELPS, Secretary, Department of Corrections.
    No. 62596.
    Supreme Court of Louisiana.
    Sept. 1, 1978.
   In re: James E. Williams, applying for writ of certiorari. Parish of East Baton Rouge.

Granted. Parole revocation hearing ordered with right to applicant to be confronted with the witnesses against him.


text:
    STATE of Louisiana v. John Phillips BRIANT, III.
    No. 62626.
    Supreme Court of Louisiana.
    Sept. 1, 1978.
   In re: John P. Briant, III, applying for writs of certiorari. Parish of Orleans.

Writ granted. Transcription of sentencing hearing ordered. No. 62686, an allied “appeal” shall be treated as a writ application and consolidated with this matter.


text:
    STATE of Louisiana ex rel., Craig S. COCO, juvenile.
    No. 62990.
    Supreme Court of Louisiana.
    Sept. 5, 1978.
   In re: Craig S. Coco applying for writ of habeas corpus and stay order. Jefferson Parish.

Granted with Stay Order. The case is assigned for argument on September 12, 1978 at 10:00 a. m.


text:
    STATE of Louisiana v. David K. MILLER.
    No. 62989.
    Supreme Court of Louisiana.
    Sept. 5, 1978.
   In re: David K. Miller, applying for stay order pending application for supervisory writs. Parish of Jefferson.

Writ denied, without prejudice to reapply. See the responses and opposition filed by the district judge.


text:
    W. E. PERRY v. The CITY OF MONROE et al.
    No. 62594.
    Supreme Court of Louisiana.
    Sept. 7, 1978.
   In re: W. E. Perry, applying for certiorari, or writ of review, to the Court of Appeal, Second Circuit. Parish of Ouachita. 360 So.2d 1352.

Writ denied.

DIXON, J., would grant a writ.


text:
    Paul Henry KIDD, in his capacity as Attorney for Cheryl Qualls v. Honorable David T. CALDWELL, Judge, Second Judicial District for Jackson Parish.
    No. 63007.
    Supreme Court of Louisiana.
    Sept. 8, 1978.
   In re: Paul Henry Kidd, applying for remedial writs and stay order. Parish of Jackson.

Granted. Further proceedings stayed pending action by this Court.


text:
    STATE of Louisiana v. Richard Earl BUTLER.
    No. 63008.
    Supreme Court of Louisiana.
    Sept. 11, 1978.
   In re: Richard Earl Butler, applying for writs of certiorari, prohibition, mandamus and stay order. Jefferson Parish.

Writ granted. Bail is to be reduced to $20,000.00 unless it is determined that $20,-000.00 is insufficient at a hearing concluded no later than Friday September 15, 1978.


text:
    HOUSING AUTHORITY OF NEW ORLEANS v. Walter C. COOK.
    No. 63020.
    Supreme Court of Louisiana.
    Sept. 12, 1978.
   In re: Walter C. Cook, applying for a stay order. Parish of Orleans.

Denied. The showing made is insufficient.


text:
    In re GRAND JURY SUBPOENAS issued to Robert Mac Mahon and Charles Speer.
    No. 63023.
    Supreme Court of Louisiana.
    Sept. 13, 1978.
   In re: Robert Mac Mahon and Charles Speer, applying for supervisory writs of certiorari, prohibition, mandamus and stay order.

Granted. The trial court’s order staying the issuance of the capias is continued in force until further orders of this court, and the matter is fixed for hearing in this court at 1:30 P.M., Monday, September 18, 1978.


text:
    STATE of Louisiana v. Thomas Bratton HAYNES.
    No. 62719.
    Supreme Court of Louisiana.
    Sept. 15, 1978.
   In re: Thomas Bratton Haynes, applying for writ of mandamus. Parish of Jefferson.

Writ granted. Transcript of Boykinization ordered furnished relator.

SANDERS, C. J., dissents from writ grant.


author: BLANCHE, Judge.

text:
    Claude W. SCHNEIDER v. Claire Crowe DELAUGHTER et al.
    No. 12099.
    Court of Appeal of Louisiana, First Circuit.
    July 10, 1978.
    Rehearing Denied Aug. 31, 1978.
    Wendell E. Tanner, Slidell, for plaintiff - appellee.
    Max Mercer, Slidell, for defendants-appellants.
    Before BLANCHE, COVINGTON and CHIASSON, JJ.
   BLANCHE, Judge.

Defendants-appellants, Claire Crowe De-laughter, et al., are appealing from a trial court judgment recognizing plaintiff-appel-lee, Claude W. Schneider, as owner of a tract of land in St. Tammany Parish in this petitory action.

LSA-C.C.P. art. 3653 requires that to obtain a judgment recognizing the ownership of immovable property the plaintiff in a petitory action shall make out his title thereto, if the court finds that the defendant is in possession thereof, or prove a better title thereto than the defendant, if the court finds that the defendant is not in possession of the property.

The trial court, as stated in its written reasons, found that the plaintiff had made out his title “good against the world” and that the defendants made no attempt to prove any indicia of title. As a consequence of this finding, the trial court recognized the plaintiff as the title owner of the property.

On appeal, defendants set forth a single specification of error:

“1. THE TRIAL COURT COMMITTED CLEAR AND MANIFEST ERROR in finding that defendants had not adversely possessed the property in excess of the prescriptive period.”

The trial judge, in his written reasons, devoted more than 90 percent of his writings to the discussion of the law and the facts involved in the attempt by defendants to defeat the petitory action by a plea of acquisitive prescription. We agree with his well reasoned finding that the defendants did not prove that they had continuous, uninterrupted, public and unequivocal possession of the property for thirty years as required by LSA-C.C. arts. 3500 and 3503.

The defendants, in attempting to show that they had adversely possessed the subject property for the required thirty years, claimed that they, their father or some member of their family lived, at all times, in a small house referred to in the testimony as the “shack” where one of the defendants, Claire Crowe Delaughter, had parked her trailer — the action which precipitated this suit.

Additionally, the defendants asserted that from this structure they possessed the entire property by renting boats at a point on a bayou bordering the property, operating coal kilns on the property to manufacture coal, maintaining vegetable gardens in several places on the property, selling timber from the property in 1958, and running livestock over the property.

There is undisputed testimony that the “shack” was built and occupied by one of the alleged ancestors in title in the 1950’s and that the plaintiff, upon discovering this, had him move out. Moreover, the building was shabbily built, located in heavily wooded swampland and was used by various hunters and fishermen. No proof of its continuous occupancy by the defendants or their purported ancestors in title was shown after the shack was vacated on order of the record title owner of the property in the 1950’s.

The testimony was inconclusive as to where the boat rentals occurred, and we find no logical grounds to accept this as persuasive that it was tantamount to possession as contemplated by LSA-C.C. art. 3503.

The trial judge visited the property to inspect the area where the coal kiln operations allegedly occurred. Concerning this, he wrote:

“ * * * The evidence that such kilns existed consists of slight mounds approximately 5 yards across where digging produces an occasional piece of coal. The Court observed two of these mounds that were pointed out as kilns. They were located somewhere towards the center of the property with no roads leading to or from them. They were obviously extremely old since large pines are presently growing from them. Just as obviously, they could have been maintained with none but the operators knowing of their existence.” (Record, p. 83)

We are unimpressed with the contention that planting of gardens at various times in various places on the property is a requisite element of possession because it would not meet the requirement of continuous possession under LSA-C.C. art. 3500.

Regarding the sale of timber from the lands by the ancestor in title of the alleged adverse possessors, there is testimony concerning a sale in 1958 but no documentary evidence. In contrast, there is documentary evidence of timber sales, execution of mineral leases and payment of property taxes by the plaintiff. Additionally, there is testimony in the record that the plaintiff cut storm-damaged timber from his property-

We note the remarks of the trial judge concerning the assertion that the property was used by the defendants to run livestock:

“There is also insufficient evidence to show the property was used for any type of cattle operation * * * Actually it would be surprising if some cattle or hogs were not at some time on the property since it is unfenced except for a fence at the north side which was admittedly placed there by * * * the neighboring property owner.” (Record, p. 83)

A land surveyor employed by the plaintiff testified that the property subject to the petitory action was unfenced. The jurisprudence in this state has determined that a party claiming possession must evidence his possession by enclosures. Labarre v. Rateau, 210 La. 34, 26 So.2d 279 (1946). This position is also enunciated by James D. Johnson, Jr., in his book on Louisiana Real Actions where he states:

“Finally, the prescription of thirty years cannot prevail beyond the area actually possessed or beyond an enclosure which shows the extent to which the possessor intends to possess.” (p. 184)

For the reasons given above, we can find no manifest error on the part of the trial judge in finding that the defendants had not adversely possessed the property for the prescriptive period. Accordingly, we affirm the judgment of the trial court, with costs cast to the defendants-appellants.

AFFIRMED.

      . LSA-C.C. art. 3500 provides:
      “The possession on which this prescription is founded must be continuous and uninterrupted during all the time; it must be public and unequivocal, and under the title of owner.”
      LSA-C.C. art. 3503 provides:
      “How favorable soever prescription may be, it shall be restricted within just limits. Thus, in the prescription of thirty years, which is acquired without title, it extends only to that which has been actually possessed by the person pleading it.”


author: WATSON, Judge.

text:
    Neil PRICE v. OVERSEAS SPORTS, INC., et al.
    No. 6588.
    Court of Appeal of Louisiana, Third Circuit.
    Sept. 7, 1978.
    Woodley & Fenet, Robert W. Fenet, Lake Charles, for plaintiff-appellee.
    Edward D. Rubin, Lafayette, for defendants-appellees.
    Before CULPEPPER, WATSON and FORET, JJ.
   WATSON, Judge.

Plaintiff, Neil Price, has appealed from a trial court judgment which rescinded the sale of a car to him by defendant, Overseas Sports, Inc. Plaintiff contends that the trial court erred in failing to award him attorney’s fees. Defendant has not appealed or answered the appeal and the only issue is whether Price is entitled to attorney’s fees.

On June 6, 1975, Price made a $1,000 deposit with Overseas Sports, Inc. of Lafayette for the purchase of a new blue TVR sports car with a blue interior. A1 Kamal of Overseas Sports, Inc. advised Price he did not have an appropriate car in stock but would locate one. Subsequently, Price was told a suitable car was available in Florida. The total price was fixed at $7,205.

The purchase price was $6,900; $305 represented sales’ taxes and license fees which were to be paid by Overseas Sports, Inc. On June 20, Price mailed Overseas Sports, Inc. a cashier’s check for the balance of the purchase price, $6,205. The next day he flew to Florida to pick up the car and drive it back to his home in Lake Charles. The car was not ready until the 23rd and Price started back on that date. He had problems on the return trip and stopped at Overseas Sports, Inc. on June 26. The clutch was slipping; the engine was overheating; there were no brake lights; and there was a vibration in the transmission. Kamal told Price to bring the car back in a month when Kamal would have returned from vacation. Meanwhile, the paint began to peel. In the middle of July, Price went back to Lafayette and showed Kamal where the paint was peeling and complained again about the mechanical problems. Price observed yellow paint beneath the blue on August 12th and returned to Overseas Sports where Kamal advised him that the car would be repainted and repaired. On the trip from Lake Charles to Lafayette, the clutch went out and Kamal sent a tow truck to bring it in. When Price returned to Overseas Sports in September to pick up his car, the paint was uneven and unacceptable. He rejected the car then and again in October, after checking with the painter, because of the quality of the paint. The painter, Glenn Leger, confirmed that the durability of the paint could not be guaranteed, and it was not factory quality. Formal tender of the TVR was subsequently made by Price’s attorney.

Lawrence G. Andries of the Motor Vehicle Bureau of the Louisiana Department of Public Safety testified that Overseas Sports was not licensed to sell new TVRs in 1975 or 1976. (TR. 78-79). As a result, a valid title to the car could not be issued. Letters advising Price of this were introduced into evidence, the last one dated December 29, 1975. Price testified he was never able to obtain a title to the car. (TR. 173-174).

A buyer is entitled to attorney’s fees from a non-manufacturer in a redhibition suit only when the seller is in bad faith. Guillory v. Pitre Ford Co., 345 So.2d 1274 (La.App. 3 Cir. 1977); Slay v. Ater, 305 So.2d 691 (La.App. 3 Cir. 1974); Peoples Fur. & G. v. Carson Hicks/Friedrichs Ref., Inc., 326 So.2d 919 (La.App. 3 Cir. 1976). LSA-C.C. art. 2545 states:

“The seller, who knows the vice of the thing he sells and omits to declare it, besides the restitution of price and repayment of the expenses, including reasonable attorneys’ fees, is answerable to the buyer in damages.”

The sale was completed when Price viewed the automobile in Florida and found it satisfactory. LSA-C.C. art. 2460. There is no evidence that the seller, Overseas, knew of the car’s mechanical and paint defects at that time. However, as an automobile dealer, Overseas Sports, Inc. must be presumed to know the requirements of the Louisiana Vehicle Certificate of Title Law, LSA — R.S. 32:701, et seq. Doyle v. Fuerst & Kraemer, 129 La. 838, 56 So. 906 (1911). A vehicle without a certificate of title is not marketable. LSA-R.S. 32:706. A car on which a certificate of title cannot be obtained has a redhibitory defect. LSA-C.C. art. 2520. It must be supposed that Price would not have purchased the car had he known a title would not be issued. As to this redhibitory defect, Overseas Sports, Inc. was in bad faith and Price is entitled to reasonable attorney’s fees, which are fixed at $2,000.

The judgment of the trial court is amended, as follows:

It is ordered, adjudged and decreed that there be additional judgment in favor of plaintiff, Neil Price, and against defendant, Overseas Sports, Inc., in the amount of $2,000 as attorney’s fees.

As amended, the judgment is affirmed. All costs on appeal are assessed to defendant, Overseas Sports, Inc.

AMENDED AND AFFIRMED.

      . LSA-C.C. art. 2460:
      “Things, of which the buyer reserves to himself the view and trial, although the price be agreed ■on, are not sold, until the buyer be satisfied with the trial, which is a kind of suspensive condition of the sale.”

      . LSA-C.C. art. 2520:
      “Redhibition is the avoidance of a sale on account of some vice or defect in the thing sold, which renders it either absolutely useless, or its use so inconvenient and imperfect, that it must be supposed that the buyer would not have purchased it, had he known of the vice.


author: WALKER, Justice,

text:
    The SINGER COMPANY et al. v. Lester SMITH, Jr. Lester SMITH, Jr. v. CONSOLIDATED FURNITURE INDUSTRIES et al.
    No. 50469.
    Supreme Court of Mississippi.
    Aug. 23, 1978.
    Daniel, Coker, Horton, Bell & Dukes, Jackson H. Abies, III, Jackson, for appellant, Singer Co.
    Butler, Snow, O’Mara, Stevens & Canna-da, Dan McCullen, Jackson, for Lester Smith, Jr.
    Watkins & Eager, Velia A. Mayer, Jackson, for Consolidated Furniture.
    Before PATTERSON, C. J., and WALKER and BOWLING, JJ.
   WALKER, Justice,

for the Court:

This is a workmen’s compensation suit filed by Smith against Singer (and its carrier, Liberty Mutual) and against Magnavox (and its carrier, Travelers Insurance). Smith alleged disability due to inhalation of abiruana dust while employed successively by the two employers. After a hearing before an attorney-referee, the case was appealed to the Workmen’s Compensation Commission. The Commission found that Smith had incurred an accidental injury or disease arising out of employment and awarded medical expenses, temporary total disability and permanent partial disability. Liability for such awards was placed on Magnavox and suit dismissed as to Singer.

On appeal to the Circuit Court of Madison County, the Commission’s decision as to employment-caused disability was affirmed; however, with modifications in the amounts awarded. The assessment of all liability on Magnavox was reversed, and liability was apportioned between Magnavox and Singer.

Smith’s major contentions are that Singer or Magnavox should be held liable, that limiting the permanent partial disability, award to twenty-five percent was erroneous; and that temporary total disability compensation should not have been terminated on May 16,1973, but continued to the date of trial.

Magnavox contends there was error in computation of dates and amounts of the disability award, and that there was a preexisting disease (asthma) for which apportionment should have been granted.

Singer contends that it was error of law to place liability upon them and that Mag-navox should bear the entire burden.

When all of the assignments of error are distilled to the basics, two central issues emerge. The first is the factual determination of the amount of disability and when it was incurred; and, second is the legal determination of which insurance carrier should be held liable under the facts of the present case.

Smith was a woodworking machine operator at a furniture factory in Flora, Mississippi from 1961 until April 12, 1973. In September 1972, the plant began using a foreign wood named abiruana. After numerous visits to various doctors beginning in September 1972, a physician, specializing in immunology and allergies made a preliminary diagnosis on April 11,1973, that exposure to abiruana wood had caused chronic obstruction pulmonary disease. At that time the physician told Smith not to return to his employment because of the presence of abiruana wood dust. He was placed on sick leave April 12, 1973, and did not return to employment at the plant after that time. From May 22 to May 25,1973, Smith underwent extensive testing that showed loss of lung tissue as a result of the exposure he suffered and hence partial permanent disability.

In the interim between the first exposure (September 1972) and first diagnosis (April 11, 1973), the company changed ownership. Until March 16, 1973, the plant was owned by Consolidated Furniture Industries, a division of Magnavox, whose insurance carrier was Travelers. After that date the company was owned by The Singer Company whose insurance carrier was Liberty Mutual.

I.

TIME OF DISABILITY DETERMINATION

The full Commission found that Smith suffered an “accidental injury or disease” on September 1, 1972. They then awarded total temporary disability for intermittent periods between September 1972 and May 1973. The permanent partial disability was awarded as of May 16, 1973, which was found to be the date of maximum medical recovery. The circuit court agreed that the injury or disease was incurred on September 1, 1972, and that as a result Smith was intermittently totally temporarily disabled until May 16,1973, the date of maximum medical recovery. There is substantial evidence in the record to support September 1 as the date the disease was incurred and the beginning point of resultant disability. Therefore, the findings as to time of injury and resultant disability are affirmed.

The circuit court found specifically that total temporary disability should have been awarded for two weeks in September, November 8-10, November 13, 1972; and January 22-February 6, March 8, 1973, April 3-6, and April 11-May 16, 1973. We agree since the employer’s sick record reflects Smith was sick on those dates. Smith’s testimony was that the sickness was due to dust exposure, and there was no contradictory testimony.

AMOUNT OF DISABILITY DETERMINATION

The Commission and the circuit court differed in computing the average weekly wage of the claimant. Mississippi Code Annotated section 71-3-31 (1972) specifies that the wage shall be computed based upon the earnings for the fifty-two weeks prior to the date of injury. The date of injury and resulting disability as determined by the Commission and concurred in by the circuit court was September 1, 1972. The average weekly wage should be computed based upon the earnings of claimant in the fifty-two weeks prior to September 1, 1972. The only evidence with regard to wages was the wage statement form of the Commission. Utilizing that and the computations directed by Mississippi Code Annotated section 71-3-31 (1972), we find that the calculations were erroneous.

The statute specifies that: (1) the employee’s earnings for the fifty-two weeks immediately preceding the date of injury should be totaled; (2) where, as here, the employee has lost more than seven days during that period, the earnings during the fifty-two weeks should be divided by the number of weeks remaining after the time lost is deducted. Applying that to the instant case, September 1, 1972, the date of injury and resulting disability is the beginning point. Since it would be impractical to begin counting in the middle of a weekly pay period, the last day of the work week immediately preceding the date of injury, here, the week ending August 27, 1972 is the first week. With that weekly wage as the first of the fifty-two, the calculation should go back fifty-two weeks. Here the fifty-second week would be the week ending September 5, 1971. The sum of wages during that period should then be calculated.

Since there was error in determining the average weekly wage, there is inherent error in the amount of disability compensation awarded, and the Commission should redetermine the average weekly wage with correction of any resulting effect on the amount of disability compensation.

II.

LIABILITY OF EMPLOYER ON DISABILITY CLAIM

The circuit court, while agreeing that the injury or disease was incurred on September 1, 1972 and that maximum medical recovery was reached on May 16,1973, nevertheless held Magnavox liable for all awards up to March 16, and Singer liable for all awards thereafter.

This “apportionment” of damages between successive carriers was apparently done on the theory that Magnavox and its insurer would have been liable had a claim been filed prior to the transfer of the company, thus they should be liable for all claims to that time. Conversely, applying the “last injurious exposure rule” the circuit court found Singer liable for all claims, including partial permanent disability, arising after March 16, the transfer date of ownership from Magnavox to Singer.

Such an “apportionment” cannot stand. Our statutes make no provision for apportionment of awards except in the case of preexisting handicap or disease. Here, the apportionment involved is between successive employers or insurers. In Thyer Mortgage Company v. Mooney, 252 Miss. 629, 173 So.2d 652 (1965), we held that the apportionment provision of our statute refers only “to the amount of compensation to which the injured employee will be entitled, not to how the payments of the compensation will be apportioned among those liable.” (252 Miss, at 639, 173 So.2d at 656). We went on to point out in that opinion that the Workmen’s Compensation Commission is an administrative agency, not a court of law and that there is no method provided by law by which it may adjust equities between insurance companies. The wisdom of such a decision is apparent here where the central conflict is between the two insurance companies rather than between claimant and employer. Absent statutory provisions, the resolution of contribution between successive carriers whether based on contract or equity should be resolved in an action at law or equity, apart from the workmen’s compensation determination.

Magnavox argues thajfe^the last injurious exposure rule should be applied to hold Singer totally liable since the “last exposure” was the period March 16 to April 11, during which Singer owned the plant. In the alternative, Magnavox argues that the rule to be applied where occupational disease is involved is that liability is determined as of the date the disability manifests itself, and that since the disease was not diagnosed until April 11, that is the date liability should attach.

The “last injurious exposure rule” as set forth by Larson, Workmen’s Compensation Law § 95 (1978) is:

When a disability develops gradually, or when it comes as the result of a succession of accidents, the insurance carrier covering the risk at the time of the most recent injury or exposure bearing a causal relation to the disability is usually liable for the entire compensation.

It is not necessary at this time to rule on the application of the rule in this state, since the facts do not present such a situation. The purpose or justification for such a rule is to set a definite and certain time for liability to attach and thus avoid the often difficult task of determining which of a series of injuries caused the disability or which of a series of exposures caused the disabling disease. In the absence of difficulty in locating a definite and certain time, the rule has no application.

In the present case, the Workmen’s Compensation Commission determined that Smith was disabled on September 1, 1972, the date of initial exposure to the abiruana wood dust. The circuit court concurred in that finding, and the medical history and testimony in the cause substantially supports this determination. Central Electric & Machinery Co. v. Shelton, 220 So.2d 320 (Miss.1969). It is clear on the facts that the disease and resulting disability had manifested itself prior to the change of ownership of the factory and the degree of injury did not change.

We also reject Magnavox’s argument that liability should attach as of the date the disease was diagnosed. In many cases a person can be totally and helplessly disabled before a correct diagnosis can be obtained. Such a rule would totally defeat the purpose of the workmen’s compensation statutes. See Pepsi Cola Bottling Company of Tupelo, Inc., and Federated Mutual Insurance of Atlanta v. Long, 362 So.2d 182 (No. 50,408, Miss. July 26, 1978).

Magnavox further urges that there was a preexisting disease (asthma) for which apportionment should have been granted. However, the record taken as a whole substantially supports the Commission’s finding adverse to' Magnavox on this issue.

We have also carefully considered Mag-navox’s claim that statutory penalties provided for in Mississippi Code Annotated section 71-3-37 (1972) should not be imposed, but find this contention to be without merit.

That part of the order of the Commission finding Magnavox liable on the claim and dismissing Singer is reinstated.

AFFIRMED IN PART, REVERSED IN PART AND REMANDED TO THE COMMISSION FOR DETERMINATION OF AMOUNT OF PERMANENT PARTIAL DISABILITY AWARD.

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


author: LEE, Justice,

text:
    Gertrude GRIFFIN v. Wade J. FLETCHER.
    No. 50532.
    Supreme Court of Mississippi.
    Aug. 23, 1978.
    Don H. Evans, Jackson, for appellant.
    Daniel, Coker, Horton, Bell & Dukes, Forrest W. Stringfellow, Gulfport, for appellee.
    Before SMITH, BROOM and LEE, JJ.
   LEE, Justice,

for the Court:

Gertrude Griffin filed suit against Wade J. Fletcher in the Circuit Court, First Judicial District of Hinds County, Honorable William F. Coleman, the presiding judge. From a verdict and judgment in favor of Fletcher, she appeals here and assigns the following errors in the trial below:

(1) The verdict of the jury was contrary to the law and the overwhelming weight of the evidence and was contrary to instructions given by the court.

(2) The verdict of the jury was inadequate and evinced bias, passion and prejudice on the part of the jury or the verdict indicated that the jury was confused by the instructions.

(3) The trial court erred in overruling appellant’s motion for a new trial on damages only, or, in the alternative, for a new trial.

(4) The trial court erred in granting ap-pellee Instruction No. 7.

(5) The trial court erred in granting ap-pellee Instruction No. 9.

Appellant, a 43-year-old nurse’s aide and school bus driver for the Jackson Municipal Separate School District, was driving a bus on her school route May 10, 1976, in the City of Jackson. She stopped to pick up a school child and turned on flashing lights attached to the bus. Appellee, driving a Veterans’ Cab, struck the bus at the left rear bumper with the right front of the cab. He testified that “I misjudged and hit it.”

When appellant completed her route, she began to suffer pain in her right knee, her foot was swollen and she soaked them in hot water. The next day she was examined by Dr. Robert Smith, who found that she had pain and tenderness in her right knee. She also was complaining of stiffness and pain in her neck. Dr. Smith prescribed Darvon for the pain and saw her for the next four (4) days. She was subsequently referred to an orthopedist and was hospitalized in University Hospital and St. Domin-ies’ Hospital.

At the conclusion of all the evidence, the trial judge granted a peremptory instruction on liability to the plaintiff. There is no cross-appeal to that action. The verdict of the jury was “We, the Jury, find for Wade J. Fletcher” and judgment was entered for the defendant.

The first four assigned errors will be discussed together.

The evidence is undisputed that appellant sustained some injury in the collision and that she suffered damage as a result. Therefore, she was entitled to compensation for same, if the peremptory instruction on liability was properly granted. In Burrell v. Goss, 245 Miss. 420, 146 So.2d 78 (1962), the trial court instructed the jury to find for the plaintiff. The jury verdict was in favor of the defendant and assessed damages for the plaintiff at nothing. This Court said:

“In other words, according to all of the evidence, the plaintiff sustained at least some injury.
The court instructed the jury to find for the plaintiff. The other instructions in her behalf went only to the form of verdict and the measure of damages. The only instructions given for the defendant admonished the jury not to make an award based solely on speculation or conjecture, and the nine-juror verdict.
The jury returned the following verdict: ‘We, the jury, find for the defendant. No damages for the plaintiff.’
After the return of the verdict, the judge made the following comment: ‘For all practical purposes, the court will consider this as a verdict for the plaintiff by assessing her damages as a consequence of the accident at nothing.’ Judgment was entered accordingly.
The plaintiff’s motion for a new trial was overruled, and she has appealed here.
The law of the case, in whatever form presented, is for the court to determine. 53 Am.Jur. Trial, Sec. 510, p. 412. 88 C.J.S. Trial § 267, p. 727, says: ‘It is the province of the court to instruct the jury on the law applicable to the case, and it is the duty of the jury to act on the law as received by them from the court.’
Besides, ‘Nonconformity of the verdict to the judge’s charge is ground for a new trial, according to the weight of authority, regardless of the showing as to whether the instructions were right or wrong. Even if erroneous, they constitute the law governing the case, and it is the duty of the jury to follow them. Any other rule, it is said, would lead to endless confusion * * * ’. 39 Am.Jur., New Trial, Sec. 127, pp. 136-7. ‘As a general rule a verdict will be set aside as contrary to law where, under the evidence, it is contrary to the instructions given by the court * * *. It is generally held that the rule that a verdict contrary to the instructions will be set aside applies although the instructions were unsound in law or improperly given.’ 66 C.J.S. New Trial § 68, pp. 201-202.” 245 Miss, at 424-425, 146 So.2d at 79-80.

Likewise, in Banfill v. Byrd, 122 Miss. 288, 84 So. 227 (1920), the trial court instructed the jury to return a verdict for the plaintiff, but the verdict was for the defendant. The Court said there:

“In the next place, it is insisted that the judgment of the court below was correct for the reason that it was manifest from the jury’s verdict that they found no damage; and also because counsel failed, when called upon, to object to the receipt of the verdict, or to move that the jury be returned to bring in a proper verdict. The jury having been instructed peremptorily to find for the plaintiff, and having refused so to do, it is fair to assume that the jury acted on the theory that there was no liability rather than that there was no damage, and we do not think that a party is bound to move the jury to retire and reconsider its verdict where the jury has contumaciously refused to follow the instruction of the court.” 122 Miss, at 298, 84 So. at 229.

An examination of the instructions in the present case indicates that, even though a peremptory instruction on liability was given in favor of the appellant, the issue of liability also was presented to the jury in other instructions. This Court said in Moak v. Black, 230 Miss. 337, 92 So.2d 845 (1957):

“It is error for the court in any case to grant instructions which are likely to mislead or confuse the jury as to the principles of law applicable to the facts in evidence; and the two instructions referred to above, which must be read and considered together, are instructions of that kind.” 230 Miss, at 351, 92 So.2d at 851.

As stated, the trial court granted a peremptory instruction on liability to the appellant and, in additional instructions to the appellant and appellee, submitted the issue of liability to the jury. The effect of those instructions was to countermand the peremptory instruction and the jury was obviously confused. In this situation, we are of the opinion that the motion for a new trial should have been sustained and that the case should be reversed and remanded for a new trial on both issues of liability and damages. In view of this holding, it will not be necessary to discuss Assignment No. 4, the granting of a certain instruction in favor of appellee.

Appellant contends in her fifth assignment of error that the court should not have given appellee Instruction No. 7, which is as follows:

“The court instructs the jury that any evidence which tends only to show a possibility is no evidence at all and must be disregarded by you in reaching your verdict.”

Appellee defends Instruction No. 7 with citations from Williams v. Lumpkin, 169 Miss. 146, 152 So. 842 (1934) and Teche Lines, Inc. v. Bounds, 182 Miss. 638, 179 So. 747 (1938). Those cases hold that the verdict must be based on probability rather than a mere possibility.

The vice of Instruction No. 7 is that it relates to parts of the evidence and not to the entire evidence which supports the verdict, and it is a comment upon the weight of the evidence. Such an instruction conceivably could exclude circumstantial evidence (parts) and it should not be given on a retrial of the case.

For the reasons stated, the judgment of the trial court is reversed and the case is remanded for a new trial.

REVERSED AND REMANDED.

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


text:
    Jerry REED v. STATE of Mississippi.
    No. 50630.
    Supreme Court of Mississippi.
    Aug. 23, 1978.
    Whittington, Brock, Swayze, Dale & Calhoun, Tom Calhoun, III, Greenwood, James R. Allen, Philadelphia, for appellant.
    A. F. Summer, Atty. Gen. by Wayne Snuggs, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before ROBERTSON, P. J., and SUGG and COFER, JJ.
   Appeal from Circuit Court, Leflore County; B. B. Wilkes, Judge.

AFFIRMED.


text:
    John E. TAYLOR v. Robbie HAYNES.
    No. 50545.
    Supreme Court of Mississippi.
    Aug. 23, 1978.
    Jon C. Anderson, Coffeeville, for appellant.
    J. Terry Peeples, Coffeeville, for appellee.
    Before SMITH, P. J., and WALKER and BOWLING, JJ.
   Appeal from Chancery Court, Yalobusha County; Kermit R. Cofer, Chancellor.

AFFIRMED.

COFER, J., took no part.


text:
    STRIBLING-PUCKETT, INC., Jimmy Cummings and Joe Schultz, et al. v. Jerry Lewis LADNER and the North River Insurance Company.
    No. 50478.
    Supreme Court of Mississippi.
    Aug. 23, 1978.
    Lee Williamson, Bay St. Louis, for appellants.
    Bryant & Stennis, Thomas L. Stennis, II, Gulfport, for appellee.
    Before PATTERSON, C. J., WALKER and BOWLING, JJ., and BILLY G. BRIDGES, Commissioner.
   Appeal from Chancery Court, Hancock County; John S. Morris, Chancellor.

AFFIRMED.

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


text:
    Joseph D. DENHAM v. Mrs. Mary M. DENHAM.
    No. 50530.
    Supreme Court of Mississippi.
    Aug. 23, 1978.
    Levi, Denham & Russell, Earl L. Denham, Ocean Springs, for appellant.
    Thomas J. Wiltz, Jr., Biloxi, for appellee.
    Before SMITH, P. J., and BROOM and LEE, JJ.
   Appeal from Chancery Court, Harrison County; John S. Morris, Chancellor.

REVERSED AND REMANDED.

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


text:
    Georgia Mae PEYTON v. STATE of Mississippi.
    No. 50649.
    Supreme Court of Mississippi.
    Aug. 23, 1978.
    James B. Everett, Decatur, for appellant.
    A. F. Summer, Atty. Gen. by Calvin Coolidge Williams, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before ROBERTSON, P. J., and SUGG and COFER, JJ.
   Appeal from- Circuit Court, Newton County; Thomas L. Goldman, Special Judge.

AFFIRMED.

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


text:
    David COLLINS v. Maxine F. COLLINS.
    No. 50242.
    Supreme Court of Mississippi.
    Aug. 23, 1978.
    Rehearing Denied Oct. 4, 1978.
    Teller, Rogers & Teller, Frank G. Vollor, Landman Teller, Jr., Vicksburg, for appellant.
    Ramsey, Bodron, Thames & Robinson, Lee Davis Thames, Vicksburg, for appellee.
    Before PATTERSON, C. J., and SMITH, P. J., and WALKER, J.
   Appeal from Chancery Court, Warren County; Ernest Kellner, Chancellor.

AFFIRMED IN PART, REVERSED IN PART AND RENDERED.

ROBERTSON, P. J., and SUGG, BROOM, LEE, BOWLING and COFER, JJ., concur.


text:
    Dobie PATTERSON v. STATE of Mississippi.
    No. 50760.
    Supreme Court of Mississippi.
    Aug. 23, 1978.
    James E. Smith, Jr., Carthage, for appellant.
    A. F. Summer, Atty. Gen., by Pete J. Cajoleas, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before PATTERSON, C. J., and WALKER and BOWLING, JJ.
   Appeal from Circuit Court, Leake County; Marcus D. Gordon, Judge.

AFFIRMED AND REMANDED.

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


text:
    Trammel MOORE v. Dorothy L. Carter MOORE.
    No. 50563.
    Supreme Court of Mississippi.
    Aug. 23, 1978.
    Rehearing Denied Sept. 20, 1978.
    Don H. Evans, Jackson, Charles A. Ray, Jr., Hazlehurst, for appellant.
    James G. McIntyre, Jackson, for appellee.
    Before SMITH, P. J., WALKER and BOWLING, JJ., and W. W. BROWN, Commissioner.
   Appeal from Circuit Court, Hinds County; Russel D. Moore, Judge.

AFFIRMED.


text:
    Mrs. Ramona G. EDWARDS v. CAVALIER INSURANCE CORP.
    No. 50538.
    Supreme Court of Mississippi.
    Aug. 23, 1978.
    Jacobs, Griffith, Pearson, Eddins & Po-vall, Benjamin E. Griffith, Lindsey C. Meador, Cleveland, for appellant.
    Luckett, Luckett, Luckett & Thompson, W. 0. Luckett, Jr., Clarksdale, for appellee.
    Before ROBERTSON, P. J., and SUGG and COFER, JJ.
   Appeal from Circuit Court, Bolivar County; J. C. Feduccia, Judge.

AFFIRMED.


text:
    Peggy S. WESTBROOK v. Herbert Nelson GRAVES.
    No. 50574.
    Supreme Court of Mississippi.
    Aug. 23, 1978.
    Rehearing Denied Oct. 4, 1978.
    Merrida P. Coxwell, Jackson, for appellant.
    Michael B. Martz, Jackson, for appellee.
    Before SMITH, P. J., and WALKER and BOWLING, JJ.
   Appeal from Chancery Court, Hinds County; J. C. Stennett, Chancellor.

AFFIRMED.


text:
    CANAL INSURANCE COMPANY, etc. v. Carl MURPHY, Jr.
    No. 50690.
    Supreme Court of Mississippi.
    Aug. 23, 1978.
    Mitchell, McNutt, Bush, Lagrone & Sams, William C. Murphree, Tupelo, for appellant.
    Jimmy D. Shelton, Billy W. Shelton, Tu-pelo, for appellee.
   Appeal from Circuit Court, Lee County; Fred Wicker, Judge.

Before SMITH, P. J., and WALKER and BOWLING, JJ.

AFFIRMED.


text:
    Lonnie A. BRUNSON v. HESS & CLARK and Hartford Accident and Indemnity Company.
    No. 50741.
    Supreme Court of Mississippi.
    Aug. 23, 1978.
    Dixon L. Pyles, Jackson, for appellant.
    Daniel, Coker, Horton, Bell & Dukes, Joel W. Howell, III, Jackson, for appellees.
   Appeal from Circuit Court, Hinds County; William F. Coleman, Judge.

Before PATTERSON, C. J., ROBERTSON, P. J., and BROOM, J.

AFFIRMED."


text:
    C. E. FRAZIER CONSTRUCTION COMPANY, INC., U.S.F.&G. Company and C. E. Frazier v. SCOTT ELECTRIC COMPANY.
    No. 50573.
    Supreme Court of Mississippi.
    Aug. 23, 1978.
    Reynolds & Mockbee, David L. Reynolds, Jackson, for appellants.
    Miller, Dean & Cordell, Hainon A. Miller, Greenville, for appellee.
    Before SMITH, P. J., and WALKER and BOWLING, JJ.
   Appeal from Circuit Court, Washington County; B. B. Wilkes, Judge.

AFFIRMED.


text:
    MFA INSURANCE COMPANIES v. B. B. HOLLOWAY.
    No. 50549.
    Supreme Court of Mississippi.
    Aug. 23, 1978.
    Mitchell, McNutt, Bush, Lagrone & Sams,' Guy Mitchell, III, Tupelo, for appellant.
    Gibson & Newlin, Donald F. Newlin, Bruce, for appellee.
    Before ROBERTSON, P. J., and SUGG and COFER, JJ.
   Appeal from Circuit Court, Calhoun County; W. W. Brown, Judge.

AFFIRMED.


text:
    S. W. CRAFT et al. v. GEORGIA-PACIFIC CORPORATION.
    No. 50560.
    Supreme Court of Mississippi.
    Aug. 23, 1978.
    Rehearing Denied Sept. 20, 1978.
    Jerry L. Yeager, Raleigh, for appellants.
   Appeal from Chancery Court, Smith County; J. W. Walker, Chancellor.

L. D. Pittman, Raleigh, for appellee.

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

AFFIRMED.


author: COFER, Justice,

text:
    MARSHALL DURBIN, INC. v. Archie TEW.
    No. 50552.
    Supreme Court of Mississippi.
    Aug. 30, 1978.

      Daniel, Coker, Horton, Bell & Dukes, Terry R. Levy, Roger C. Clapp, Forrest W. Stringfellow, Jackson, for appellant.
    Tullos & Tullos, Eugene C. Tullos, Raleigh, for appellee.
    Before ROBERTSON, P. J., and SUGG and COFER, JJ.
   COFER, Justice,

for the Court:

This action for damages for personal injury was brought by the appellee Archie Tew against the appellant Marshall Durbin, Inc. and Illinois Central Gulf Railroad Company in the Circuit Court of Smith County. The circuit court directed a verdict for the railroad and the jury awarded an $18,000 verdict against Marshall Durbin, Inc. On the appeal to this Court, the appellant assigned that the trial judge erred (1) in denying the appellant’s request for a peremptory instruction and in overruling its post-trial motions, because the injuries complained of were not foreseeable, (2) in basing his rulings on the appellant’s post-trial motions on matters outside the record, and (3) in granting conflicting damage instructions to the jury. The appellant has also asserted (4) that the verdict is grossly excessive evidencing bias, passion and prejudice on the part of the jury.

The accident which brought about this case occurred at approximately 2:00 a.m. on June 20, 1976, when the appellant’s truck collided with an Illinois Central Gulf freight train in the Town of Mize, Mississippi. The truck was carrying chicken parts and waste, which were dumped out of the truck as a result of the accident. The waste was spread out approximately 100 feet in each direction from the point of the accident. It could be decided from the evidence that a brake diaphragm broke in the truck and caused the driver to be unable to stop. The driver testified that he had never driven through Mize before, that he did not see signs warning him to use a lower gear and to check his brakes going down the hill which led to the railroad crossing, and that he could not read. Before impact he and his passenger (who was with him contrary to rules of the driver’s employer) jumped out of the truck, although it was indicated that there was a vacant area near the railroad which might have been used as a possible route to avoid the accident.

The waste caused an extremely foul odor to spread over the area near the accident, which remained for days after the area was cleaned up. The wreck occurred at a point about 50 feet from the Mize Police Station. Appellee, who was town marshal, was required due to scarcity of help to spend long hours at the scene of the accident and in the police station. The smell of the chicken waste resulted in the illness complained of. The treating physician testified that Tew suffered from inflammation of the eyes, nose and upper respiratory tract; infected sinuses and mucous membranes; and headaches secondary to sinus congestion. The appellee brought suit to recover damages for these injuries.

The first issue raised in this case is that the injury complained of was not a foreseeable result of the actions of the defendant. In the case of Mauney v. Gulf Refining Co., 193 Miss. 421, 9 So.2d 780 (1942), the term “foreseeability” was discussed at length. That case involved the following situation. The defendant’s agent was filling a storage tank at a service station in Ripley, Mississippi. While so engaged, a fire broke out on the tank truck and spread to the service station. The people who were there fled the scene shouting that the storage tanks would explode and spread the fire all over town. Mrs. Mauney was working in a cafe across the street. When she heard the cries of those fleeing the service station, she hurried to get her small child who was nearby and, in doing so, fell over a misplaced chair. The fall caused her to miscarry. This Court held that the acts of the defendant’s agents were not the proximate cause of the injury. The Court stated that “foreseeability” is the test for determining issues of proximate cause. The Court discussed this concept as follows;

The rule is firmly established in this state, as in nearly all the common law states, that in order that a person who does a particular act which results in injury to another shall be liable therefor, the act must be of such character, and done in such a situation, that the person doing it should reasonably have anticipated that some injury to another will probably result therefrom, . . . but that the actor is not bound to a prevision or anticipation which would include an unusual, improbable, or extraordinary occurrence, although such happening is within the range of possibilities. (Citations omitted). (193 Miss. at 427-428, 9 So.2d at 780-781).

This Court in Mauney further explained the doctrine of foreseeability by commenting upon the earlier case of Gulf Refining Co. v. Williams, 183 Miss. 723, 185 So-234 (1938):

[I]t was pointed out that in speaking of probable results as applied to foreseeability it has not been meant to include only those more apt to happen than not to happen, but embraces those which the negligent actor should have foreseen as something likely to happen, although the likelihood may not amount to a comparative probability; but in the same case it was again admonished that more than a remote possibility is necessary to fulfill the requirements of the rule of liability, —that the likelihood which furnishes the essential ligament between the negligence and the injury must be one of weight and moment. (193 Miss. at 428, 9 So.2d at 781).

Thus, the question in this case at bar is whether Marshall Durbin, Inc. could have foreseen the injury to Archie Tew as something likely to occur from its act on the night of the accident.

As it was stated in Mauney, “[t]he difficulty is not in the rule, but in applying the facts of a particular case, and in determining whether the facts bring the case within the circle which limits the rule, or whether they fall beyond it.” (193 Miss. at 429, 9 So.2d at 781). We believe that the evidence was sufficient to warrant the jury’s finding that the acts of Marshall Durbin and its agent were negligent in the accident complained of. Marshall Durbin argues, however, that even if it were negligent, this negligence was not the proximate cause of the injuries complained of, because of the unforeseeable circumstances which attended this particular injury. Specifically, Marshall Durbin has asserted that it could not have foreseen that the Town of Mize would have an understaffed police department, a circumstance which necessitated Archie Tew’s prolonged presence near the scene of the accident. It is not our view, however, that the specific circumstances in which the injury occurs must have been foreseeable to the defendant. In Brewer v. Town of Lucedale, 189 Miss. 374, 198 So. 42 (1940), this Court stated:

It is true that the actor here . may not have foreseen that this particular manner of effecting an injury would occur, but [it] might have anticipated that some injury might occur under similar circumstances. (189 Miss. at 384, 198 So. at 44).

In the present case, we hold that it was foreseeable to Marshall Durbin that the negligent operation of its truck on June 20, 1976, might cause the truck to spill its noxious cargo, and that this spillage might impair the health of anyone who remained near the scene of the accident. Thus, the trial court’s rulings on the request for a peremptory instruction and the post-trial motions were not erroneous from the standpoint of the foreseeability of the injuries.

Having disposed of the contention of foreseeability vel non of the damages to the appellee, we must mention the third assignment of error before going on to consider the second and fourth assignments together. The third assignment of error dealt with conflicting instructions to the jury. We have considered the instructions and do not feel that any reversible error was committed.

The second issue raised is that the trial court committed error in overruling the appellant’s post-trial motions by considering facts outside the record. The appellant claims that this reliance upon facts outside the record so obscured the judge’s view of the facts properly in evidence, that he allowed an excessive verdict to stand. The motion filed by the appellant was a motion for a judgment notwithstanding the verdict or in the alternative for a new trial.

The record indicates that, in ruling upon these motions, the trial judge relied upon facts within his personal knowledge. In another cause before the trial judge, a young man who worked for the appellant Marshall Durbin had been in court. Although the man appeared clean, he had an odor about him. The judge inquired about it, and the man told him that although other people noticed the smell, he did not notice it himself. Upon these facts, the judge concluded that prolonged exposure to chicken waste can damage a person’s sense of smell.

In the case of Gillespie v. Doty, 160 Miss. 684, 135 So. 211 (1931), the trial judge granted a new trial based upon facts within his personal knowledge concerning misconduct of the jury. The judge in that case was requested by the attorney for one of the parties to state the facts which he knew, but he refused to do so. This Court stated:

If the judge had complied with this request, the facts that would have been thereby disclosed may have justified the granting of the new trial, and, while it does not here appear what those facts are, in the opinion of the trial judge they were sufficient to justify the granting of a new trial. (160 Miss. at 696, 135 So. at 213).

This Court reversed and remanded that case.

We do not believe, however, that the Gillespie case requires reversal in the present one. The trial judge in the present case was familiar with all of the evidence which had been presented at trial. The fact that he may have also considered facts within his personal knowledge does not mean that he let these facts seriously impair his ability to consider the evidence previously presented. While we would state that a trial judge’s reliance upon facts within his personal knowledge is not a favored practice, we hold that in the present case, this was not reversible error.

The final argument of the appellant is that the jury verdict is excessive evidencing bias, passion and prejudice on the part of the jury. The medical bills in this case totalled $252. Mr. Tew was not hospitalized and lost no time from his work. While the treating physician stated that the condition was painful, he also testified that he did not foresee any permanent disability. Given these facts, the jury’s verdict in the amount of $18,000 is, to us, excessive, unreasonable and contrary to the overwhelming weight of the evidence. We believe that another jury should be given an opportunity to consider the amount of the verdict appropriate under the circumstances. Therefore, affirmed on the issue of appellant’s liability, we reverse and remand the cause for retrial on the issue of damages only.

AFFIRMED IN PART, REVERSED IN PART AND REMANDED FOR A NEW TRIAL ON THE ISSUE OF DAMAGES.

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

SMITH, P. J., took no part.


author: BILLY G. BRIDGES, Commissioner

text:
    RAUCH INDUSTRIES, INC. v. POLORON PRODUCTS OF MISSISSIPPI, INC.
    No. 50493.
    Supreme Court of Mississippi.
    Aug. 30, 1978.
    James D. Myers, Floyd A. Gibson, Charlotte, N. C., Ted L. Smith, Batesville, for appellant.
    Thomas W. Belleperche, Batesville, for appellee.
    Before PATTERSON, C. J., WALKER and BOWLING, JJ., and BRIDGES, Commissioner.
   BILLY G. BRIDGES, Commissioner

for the Court:

Appellant filed a bill of complaint praying for injunctive relief and for an accounting against appellee in the Chancery Court of Panola County, Mississippi. As grounds for relief, appellant alleged that Poloron Products, Inc., a New York corporation, and its subsidiary, Poloron Products of Mississippi, Inc., were in breach of a contract executed by and between appellant, then known as Pyramid Mills Company, Inc., and Poloron Products, Inc., on March 9, 1972, which said contract provided in part, which said part is the essence of this lawsuit, that Poloron Products, Inc. would pay to appellant a certain royalty based upon said Polo-ron’s net sales and that said Poloron shall keep full, true and accurate books of account and records containing all particulars which may be necessary for the purpose of showing the amount of royalties payable under the agreement annually.

Said agreement between the parties further provided therein as follows:

The license granted herein is personal to POLORON, its subsidiaries and divisions and POLORON shall not have the right to grant sublicenses hereunder except with PYRAMID’S prior written approval and, in the event any such sublicense is granted, PYRAMID shall look to POLO-RON for all royalties for decorative ornaments manufactured thereunder. As used herein, subsidiary means any company in which POLORON owns more than fifty percent (50%) of the outstanding stock. This license also shall not be assignable by POLORON except to a successor of POLORON’s entire decorative ornament business and then only upon prior written notice to PYRAMID. This agreement and the rights of PYRAMID hereunder may be assigned by PYRAMID, and, in such event, shall enure to the benefit of and be binding upon any such assignee or successor of PYRAMID.

The proof in the court below showed that Poloron Products, Inc. accounted for and paid the royalties due appellant for the years 1972 and 1973 under the terms of said contract. Thereafter, for the years 1974 and 1975, no accountings or payments were made; and the suit in the court below was filed.

Initially, only Poloron Products, Inc. was named as a defendant in said suit; and by amendment Poloron Products of Mississippi, Inc., a subsidiary of said original defendant, was made a party defendant. The suit was dismissed as to the parent corporation, Po-loron Products, Inc., for lack of service of process.

The chancellor, after two hearings and examining the briefs submitted by both parties, concluded that the contract was between appellant and Poloron Products, Inc., of New York alone, and that the parent had not denied full responsibility for the contract, but admitted at trial that if anyone was liable it was the parent. The court appropriately noted that this suit was originally brought against the parent (Polo-ron Products, Inc.) as doing business in Mississippi, and that no reason was shown in the trial why relief had not been sought against the parent by a proper suit. The chancellor further found that there was no proof that defendant, Poloron Products of Mississippi, Inc., had anything to do with the contract or the activities and benefits thereunder, or was a party to any accounting to appellant for the years 1972 and 1973.

The contract was an exclusive agreement between appellant and Poloron Products, Inc., of New York. The court below, and the Court here, construes the contract as not making the subsidiary a party to it. There is no proof or intimation that Poloron Products of Mississippi, Inc., or any other subsidiary was created for the purpose of profiting from the contract while the parent company evaded the burden end of it.

The appellee, Poloron Products of Mississippi, Inc., denied that appellant had no adequate remedy at law in the court below, since if a right to relief was established, appellant would be entitled to a money judgment. The appellee further alleged as an affirmative defense that appellant had delayed for more than two years in instituting suit, which clearly illustrated that appellant was not entitled to injunctive relief.

The appellant argues that under the above cited provision of said agreement Po-loron Products of Mississippi, Inc. is a subsidiary of the defendant, Poloron Products, Inc., and therefore is a proper party to this action and is liable under the terms of said agreement and that Poloron Products, Inc. (of New York) is attempting to avoid liability by acting through its agent and subsidiary, Poloron Products of Mississippi, Inc.

This Court has heretofore found in the case of Robinson v. Martel Enterprises, Inc., 337 So.2d 698 (Miss.1976), the general rule in interpreting contracts is that the Court will look only to the four corners of the instrument to ascertain and give effect to' the intention of the parties. Further, this Court in Johnson and Higgins of Mississippi, Inc. v. Commissioner of Insurance, 321 So.2d 281 (Miss.1975), established the rule that the subsidiary corporation will be treated as an entity separate from the parent.

We agree with the finding of the chancellor and his decree is, therefore, affirmed.

AFFIRMED.

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

SMITH, P. J., and COFER, J., took no part.

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


author: PATTERSON, Chief Justice,

text:
    J. T. COX et al. v. MISSISSIPPI STATE HIGHWAY COMMISSION.
    No. 50480.
    Supreme Court of Mississippi.
    Aug. 30, 1978.
    Jacobs, Griffith, Pearson, Eddins & Po-vall, John Kirkham Povall, Cleveland, for appellants.
    Alexander, Johnston & Alexander, Robert G. Johnston, Cleveland, for appellee.
    Before PATTERSON, C. J., and WALKER and BOWLING, JJ.
   PATTERSON, Chief Justice,

for the court:

J. T. Cox, Mary Katherine Cox and North Mississippi Savings & Loan Company appeal a jury award of $3500 in an eminent domain proceeding had in Bolivar County by the Mississippi State Highway Commission. The issue on appeal is whether the trial court erred in permitting the highway commission’s expert witness to testify concerning the results of a survey involving the average distance that single-family residences were set back from the highway in the vicinity of the property condemned.

The highway commission acquired approximately 0.33 acre of the 2.86 acres of land owned by Mr. and Mrs. Cox upon which their family residence was located. The property is adjacent to Highway 61 and was acquired to widen it. Prior to the condemnation the Cox home lay 162 feet from the right-of-way and 210 feet from the pavement. After construction, it would lie 97 feet from the right-of-way and approximately 146 feet from the pavement.

The highway commission tendered its statement of values to the trial court for compensation of $1420, including an assessment of $900 for the fair market value and $520 damages to the remainder. The court appointed an independent appraiser who valued the property at $72,081 before and $67,409 after the acquisition for a just compensation of $4672. The appellants filed their statement of values contending the fair market value of the condemned property was $5000 with damages to the remainder of $20,000 for a total compensation of $25,000.

Walter Cummins, an appraiser for appel-lee, testified to a before value of $74,600 and an after value of $72,925 for a difference of $1675. He designated a value of $3500 per acre for the land and testified the remaining property suffered no damage because of the acquisition, thus contradicting the highway commission’s assessment of values assigning $520 as damage to the remainder.

Appellants objected to Cummins’ testimony concerning the average distances homes in the vicinity of the Coxes were set back from the highway. The trial judge heard the testimony outside the presence of the jury and found it admissible. Cummins then testified: “The survey I was talking about started at Gaines Oil and went all the way to Washington-Bolivar County line.” From this survey he compiled the setback distances from the road. Where houses had been moved and there was evidence of where they formerly stood, he included these measurements. For the east side of the road he calculated a setback of 67.8 feet. He also made a second survey on Highway 8 for four or five miles east of the city of Cleveland and three or four miles just west of Delta State University. He calculated an average setback distance of 82.75 feet for homes to the east and 61.15 feet for those west of Cleveland.

Mr. Winston Hayles, a local realtor, testified for appellants. He valued the property before the condemnation at $90,000 and after the taking at $77,000 for a difference of $13,000. He stated that a setback of less than 100 feet would be undesirable for property appraised in excess of $50,000 to $60,000. He estimated a reduction in market value of 15% or approximately $13,000.

The jury awarded the defendants $3500 and their motion for an additur or a new trial was overruled. On appeal they argue that the trial court committed reversible error in permitting appellee’s expert witness to testify to the results of the surveys made by him involving the average setback distance from the highway of single-family residences in the vicinity of the property.

The case of Sample v. Tennessee Gas Transmission Co., 151 Tex. 401, 251 S.W.2d 221 (1952), is persuasive to this argument. There the landowner contended that transmission poles and lines hindered the future use of his property. The condemning authority attempted to show that adjoining landowners were using their property although transmission lines were present, but were not hindered in their use. That Court held that the testimony was appropriately excluded as it could not have aided the jury in determining the issues and market value of the land is question.

Recent sales of comparable property in the vicinity of that sought to be acquired for public use may be shown in evidence to establish the fair cash market value of the land acquired. However, land deeds indicating sale price of land in the neighborhood without showing requisite similarity are not admissible as evidence in eminent domain proceedings. Pearl River Valley Water Supply District v. Wright, 203 So.2d 69 (Miss.1967). Although the evidence in the present case did not concern sales but rather distances from the highway, where no similarity was shown between the properties other than their fronting Highway 61, the same principle, in our opinion, should apply.

The testimony of Walter Cummins to the average setback was inadmissible and its admission constituted reversible error. Not only did he fail to show the similarity between the properties other than their fronting Highway 61, but the fact that other owners had their homes set back less than the Coxes only showed their preference, or perhaps circumstances beyond their control, and not its effect on market value as a similar sale would have. We therefore reverse and remand for a new determination of the value of the interest taken.

REVERSED AND REMANDED.

ROBERTSON, P. J., and SUGG, WALKER, BROOM, LEE, BOWLING and COF-ER, JJ., concur.

SMITH, P. J., took no part.