text:
    Patricia Josephine HUDSON, Plaintiff-Appellant, v. James Huntington HUDSON, Defendant-Appellee.
    No. 13181.
    Court of Appeal of Louisiana, Second Circuit.
    March 21, 1977.
    Love, Rigby, Dehan & Love by Kenneth Rigby, Shreveport, for plaintiff-appellant.
    James E. Bookter, Bossier City, for defendant-appellee.
    Before BOLIN, PRICE and HALL, JJ.
   BOLIN, Judge.

The only issue in this case is whether a court of another state, which renders a judgment of divorce, awards custody of children and child support, retains jurisdiction to increase the amount of child support without personally serving an absent defendant.

Plaintiff obtained a divorce from defendant in California in 1971. At that time defendant, who was in the armed services and stationed overseas, submitted himself to the jurisdiction of the California court but did not waive his rights under the Soldiers and Sailors Relief Act. An attorney was appointed to represent defendant and contradictory proceedings resulted in judgments awarding plaintiff a divorce, custody of three minor children, and $200 per month for the support of the children. In 1974 plaintiff brought another action in California against defendant, who was in the armed services stationed in Bossier Parish, Louisiana, to increase the total child support from $200 to $300 per month. In that proceeding defendant was notified by certified mail in compliance with California law. In due course judgment increasing the child support to $300 was rendered in favor of the plaintiff against defendant.

The present action to have recognized the California judgments and to fix the past due child support and make it executory was instituted by plaintiff against defendant who was personally served in Bossier Parish. Following trial the court ruled that the 1971 California judgment was valid and entitled to full faith and credit; that plaintiff could accrue and make executory the child support due under the original $200 award because defendant had submitted himself to the jurisdiction of the court. However, the court refused to recognize the 1974 California judgment increasing the award because defendant was not personally served nor did he make an appearance. Plaintiff appeals and, since defendant neither appeals nor answers the appeal, the question of the first award of 1971 is not before the court.

California clearly had jurisdiction to render the divorce and to make the initial child support award. The court retained jurisdiction to alter the support award provided it was done in a constitutional manner and in compliance with the law of California. Plaintiff complied with California Code of Civil Procedure Section 415.40 which states:

A summons may be served on a person outside this state in any manner provided by this article or by sending a copy of the summons and complaint to the person to be served by any form of airmail requiring a return receipt.

In Carpenter v. Carpenter, 240 So.2d 13 (La.App.2d Cir., 1970), this court held that the district court which granted the original child support judgment retained jurisdiction to alter the award although one of the parties to the original proceeding was a nonresident at the time the action for modification was instituted; and that the award could be changed upon giving defendant reasonable notice other than personal service. Quoted with approval was Dupre v. Guillory, 216 So.2d 327 (La.App.3d Cir., 1968). Thereafter the Supreme Court stated in Imperial v. Hardy, 302 So.2d 5 (1974):

Once jurisdiction attached for an award of child support, therefore, it continues for a change or modification of the award in the future. [Citations omitted]

We hold the lower court erred in rejecting plaintiff’s demand to accrue and make executory the increased amount of child support due under the 1974 California judgment.

The judgment of the trial court is amended and recast as follows:

It is ordered there be judgment in favor of plaintiff, Patricia Josephine Hudson, and against defendant, James Huntington Hudson, recognizing and according full faith and credit to judgments signed on October 29, 1971 and June 14, 1974 in the Superior Court of the State of California for the County of Marin in suit number 54501.

It is further ordered there be judgment in favor of plaintiff against defendant for $4,625.00 for accrued and unpaid child support under the 1971 and 1974 California judgments, with seven percent per annum interest thereon from August 20, 1975; and for the additional sum of $4,200.00 for the unpaid child support due under the 1974 California judgment from August 1975 through September 1976, with seven percent per annum interest from October 1, 1976 until paid.

It is further ordered that defendant pay all costs including the cost of this appeal.


source: Caselaw Access Project

author: HALL, Judge.

license: Public Domain

text:
    Calvin CULPEPPER, Plaintiff-Appellee, v. Claude BALLARD, Defendant-Appellant.
    No. 13182.
    Court of Appeal of Louisiana, Second Circuit.
    March 21, 1977.

      James B. Wells & Associates by James B. Wells, Bossier City, for defendant-appellant.
    James L. Fortson, Jr., Shreveport, for plaintiff-appellee.
    Before BOLIN, PRICE and HALL, JJ.
   HALL, Judge.

This is an action for damages for malicious prosecution. The trial court rendered judgment in favor of plaintiff for $2,500 and defendant appealed. We affirm.

Plaintiff and his wife rented a furnished apartment from defendant. The oven furnished with the apartment did not work properly, in spite of several efforts to repair it. Shortly before Christmas, 1973, defendant bought a new toaster, took it to the apartment, and handed it to plaintiff’s wife. Plaintiff’s position is that defendant said the toaster was a Christmas gift. Defendant’s position is that he did not say it was a gift and that it was intended as a replacement for the defective oven. The testimony establishes that regardless of defendant’s true intention, plaintiff had reason to believe the toaster was a gift.

Within a few days a check given by plaintiff to defendant for rent was returned marked insufficient funds. Plaintiff and defendant argued over the rent check on Christmas eve night.

On January 3, 1974, defendant posted a notice to vacate on the door of the apartment. On the same day, plaintiff moved into an apartment across the street. Defendant watched plaintiff move and saw the toaster among the belongings moved into the new apartment. Defendant said nothing to plaintiff about the toaster.

Three days later defendant went to the Bossier City Police Station and made a complaint that plaintiff had taken his toaster without permission. Defendant signed a blank affidavit form, assuming (according to his own testimony) that the police would arrest plaintiff and get his toaster. Plaintiff was arrested, charged with theft of the toaster valued at $12, and stayed in the Bossier City jail from Sunday evening until Monday night, when he was able to post bond. He was tried on the theft charge in the City Court of Bossier City and found not guilty. Defendant testified against plaintiff at the trial.

An action for malicious prosecution lies where there is a concurrence of the following elements:

(1) The commencement or continuance of an original criminal or civil judicial proceeding;
(2) Its legal causation by the present defendant against plaintiff who was defendant in the original proceeding; •
(3) Its bona fide termination in favor of the present plaintiff;
(4) The absence of probable cause for such proceeding;
(5) The presence of malice therein; [and]
(6) Damage conforming to legal standards resulting to plaintiff.

Robinson v. Goudchaux’s, 307 So.2d 287 (La.1975).

The first three elements and the sixth element were clearly established. Defendant caused the commencement of a criminal proceeding against plaintiff, which proceeding terminated in favor of plaintiff. Plaintiff was damaged by defendant’s actions. The issues on appeal relate to probable cause and malice.

The existence of probable cause in any case depends upon the particular facts of that case. Probable cause does not depend merely upon the actual state of the facts, but upon the defendant’s honest belief of the facts in making the charge against the plaintiff. Whittington v. Gibson Discount Center, 296 So.2d 375 (La.App.2d Cir.1974).

Defendant did not have probable cause to believe plaintiff committed a theft of the toaster. Even if defendant reasonably believed he was the owner of the toaster, under the circumstances he should have just as reasonably believed there could have been a misunderstanding on plaintiff’s part as to ownership. The toaster was moved with plaintiff’s other belongings, in plain sight, with defendant watching. It was only moved to plaintiff’s apartment across the street. Its value was small. The facts were not such as to cause a reasonable man in the position of defendant to believe that plaintiff committed the crime charged.

Malice exists where the charge is made with knowledge that it is false or with a reckless disregard as to whether it is false or not. Whittington v. Gibson Discount Center, supra. Where there is a want of probable cause resulting from a wanton and reckless disregard of the rights of the party charged, showing absence of the caution and inquiry a man should employ before making the charge, malice will be inferred. Robinson v. Goudchaux’s, supra.

Defendant acted with malice. The lack of probable cause and the failure to say anything to plaintiff or to otherwise make any inquiry indicates malice. There was friction between the parties. Defendant’s actions were calculated to cause plaintiff to be arrested and to get his toaster back. He used the criminal process to resolve personal and civil differences. As stated in Robinson v. Rhodes, 300 So.2d 249 (La.App.2d Cir.1974), writ refused 303 So.2d 178 (1974): “This is an intolerable abuse of the criminal process.”

Bristow v. Messer, 336 So.2d 44 (La.App.2d Cir.1976), cited by defendant, is not similar to this case. In Bristow the defendant related facts to the police who took it upon themselves to initiate criminal proceedings. In the instant case defendant made specific criminal charges calculated to cause the arrest of the plaintiff with reckless disregard for the truth of the charge.

The action of defendant in causing the arrest of the plaintiff and his prosecution on a charge of theft was not reasonably justified by the surrounding circumstances. Defendant’s acts constituted fault and caused damage to the plaintiff which defendant is obliged to repair under LSA-C.C. Art. 2315. See Whittington v. Gibson Discount Center, supra, and Jones v. Simonson, 292 So.2d 251 (La.App.4th Cir.1974).

The judgment of the district court is affirmed at appellant’s costs.

Affirmed.


text:
    Johnnie WILLIAMS, Plaintiff-Appellant, v. Winnie CARTER et al., Defendants-Appellees.
    No. 13183.
    Court of Appeal of Louisiana, Second Circuit.
    March 21, 1977.
    Piper & Brown by Robert E. Piper, Jr., Shreveport, for plaintiff-appellant.
    Naff, Kennedy, Goodman, Stephens, Donovan & Parnell by William M. Comegys, III, Shreveport, for defendants-appellees.
    Before BOLIN, PRICE and HALL, JJ.
   HALL, Judge.

At issue on plaintiff’s appeal in this suit between the surviving husband (plaintiff) and the heirs of the deceased wife (defendants) is the correctness of a judgment of the district court holding that the community formerly existing between the husband and wife is indebted to the wife’s separate estate for $4,130, representing the value of the wife’s separate funds or property expended as part of the consideration paid for a lot purchased during the existence of the community. We affirm the judgment of the district court.

The husband and wife purchased the lot after their marriage for a stated cash consideration of $4,400. They later built a home on the lot in which they lived until the wife’s death, and in which plaintiff still lives.

By the testimony of an employee of the vendor and records of the vendor, defendants established that $4,130 of the consideration for the lot was attributable to the reconveyance to the vendor of another lot sold to the wife prior to her marriage to plaintiff. Title to the other lot was in the names of the wife’s parents for convenience, but the wife had actually paid for the lot with $4,130 of her separate funds.

Plaintiff-appellant contends that the trial court erred in admitting parol evidence to show the character of the funds used to purchase the lot, arguing that the best evidence of the consideration paid is the deed itself and citing LSA-C.C. Art. 2276. Plaintiff further contends the evidence, even if admissible, is insufficient to overcome the presumption that community funds were used.

A well-established exception to the rule of LSA-C.C. Art. 2276 is that parol evidence is admissible to show the true consideration for a sale and specifically to show that separate funds of the wife were used as all or part of the consideration for property acquired during the existence of the community. Blalock v. Blalock, 259 So.2d 367 (La.App. 2d Cir. 1972); Primeaux v. Libersat, 307 So.2d 740 (La.App. 3d Cir. 1975), reversed in part on other grounds 322 So.2d 147 (La.1975). See Southwest Natural Production Company v. Anderson, 239 La. 490, 118 So.2d 897 (1960). If the wife contributes her separate funds under her separate administration as part of the purchase price of community property, the community is indebted to the separate estate of the wife to the extent of the funds or value of separate property so expended. Succession of Schnitter, 220 La. 323, 56 So.2d 563 (1951); Succession of Miangolarra, 297 So.2d 784 (La.App. 4th Cir. 1974).

The testimony of the vendor’s employee and the business records of the vendor constitute adequate evidence to rebut the presumption that community funds were used. The only contradictory evidence was plaintiff’s own self-serving testimony, which itself is not clear. Receipts offered into evidence by plaintiff related to expenses of building the home, not to payment of the purchase price.

The evidence was properly admitted and convincingly established that part of the consideration for the purchase of the lot was attributable to the separate property of the wife which was conveyed to the vendor. Since community funds were also used as part of the consideration for the lot which was purchased in the names of both husband and wife and was to be used for community purposes, the lot is community property. Neither side contends otherwise on appeal. However, the community is indebted to the wife’s separate estate for that part of the consideration paid from her separate funds or property.

The judgment is affirmed at appellant’s costs.

Affirmed.

      . LSA-C.C. Art. 2276 provides:
      Neither shall parol evidence be admitted against or beyond what is contained in the acts, nor on what may have been said before, or at the time of making them, or since.


author: JONES, Judge.

text:
    Joseph Daniel RYAN, Plaintiff-Appellant, v. The SHREVEPORT TIMES PUBLISHING COMPANY et al., Defendants-Appellees.
    No. 13187.
    Court of Appeal of Louisiana, Second Circuit.
    March 21, 1977.

      Glen H. Smith, Shreveport, for plaintiff-appellant.
    Tucker, Martin, Holder, Jeter & Jackson, by Robert McLean Jeter, Jr., Shreveport, for defendants-appellees.
    Before HALL, MARVIN and JONES, JJ.
   JONES, Judge.

Plaintiff appeals from a judgment sustaining an exception' of no cause of action and dismissing plaintiff’s libel suit. The lower court held the newspaper articles in question were not libelous. We affirm.

Copies of the two newspaper articles were attached to plaintiff’s petition. The pertinent portions read as follows:

“Reports that the Public Safety Commissioner George W. D’Artois has given preferential treatment to some persons have been reinforced by a number of records on file at City Hall.
“A Times review of applications for liquor permits showed that in at least eight instances D’Artois has directed his subordinates to grant permits to persons who have not met all requirements for those permits.
“In several of the eight cases, The Times found that the persons involved had either records of arrest for gambling or direct ties to known gamblers.
“Notations on the liquor permit applications state that certain information was not filed with the original application and that the exception was okayed by the commissioner.
* * * * * *
“In addition notations granting exceptions to the rule were made on applications filed by . Joseph Daniel Ryan of 1820 East Kings Highway for Chez Joey .
* * * * * *
“ ‘Subject did not have certificate of occupancy, newspaper ad or copy of lease. Commissioner brought him back and said take the application,’ is written on the back of the application submitted Dec. 29, 1975 by Joseph Daniel Ryan of Apartment 227, 1820 E. Kings Highway for the lounge Chez Joey at 545 E. Washington. The application was the only sheet of paper in the Chez Joey file and the portion of the form where zoning category is supposed to be listed is left blank.”
* * * * * *

The second newspaper article contained the following:

“Deputies from the Caddo Parish sheriff’s office converged on Shreveport City Hall at 10:30 a. m. Thursday and seized and carted away hundreds of records from the police department.
“They confiscated records of 25 Shreveport men who in some way figure in the case of the State of Louisiana versus Public Safety Commissioner George D’Artois.
* * * * * *
“The writ of subpoena ordered . officials to surrender all books, paper, documents, reports and records including arrest records, bond records, offense reports, fingerprint cards, court records, evidence records and FBI records concerning the 25 Shreveport men.
“Records were seized on . . . Danny Ryan . . . ”
* * * * * *

Plaintiff contends these articles name him as one of several persons receiving preferential treatment from the Public Safety Commissioner in obtaining an alcoholic beverage permit. He further contends the articles “associate” him with alleged gamblers and felons, and imply he was arrested in connection with the reported investigations.

The threshold issue in any libel action is whether or not the statements made are defamatory or libelous. In Brown v. News-World Publishing Corporation, 245 So.2d 430 (La.App., 2d Cir. 1971), we said:

“A statement is defamatory when it tends to expose a person to contempt, hatred, ridicule or obloquy; or which causes a person to be shunned or avoided; or which has a tendency to deprive him of the benefits of public confidence or injure him in his occupation; and includes almost any language which upon its face has a natural tendency to injure the person’s reputation, either generally or with respect to his occupation. The intent and meaning of an alleged defamatory statement must be gathered not only from the words singled out as libelous but from the context as well, and the true meaning must be ascertained from a consideration of all parts of the statement as well as the circumstances of its publication. The test is the effect the article is fairly calculated to produce and the impression it would naturally engender in the minds of the average persons among whom it is intended to circulate. .
“An exception of no cause of action admits, for the purpose of consideration of the exception, all facts that are pertinent and well-pleaded in the petition. In determining whether plaintiff has set forth a cause of action for libel this court should give due weight to every portion of the articles complained of and to every fact set out in the petition. . . . ” (Citations omitted) Id., p. 432

See also Pence v. Ketchum, 326 So.2d 831 (La.1976).

The articles do not say or imply that the plaintiff associates with gamblers or felons. They do not indicate that plaintiff has ever been arrested or convicted of the violation of a criminal statute. There is likewise no statement in either article that plaintiff in fact received a liquor permit as a result of preferential treatment and without compliance with law. The article merely reports the notation made on the file containing plaintiff’s application for a liquor license. Any adverse implications that might arise in the mind of the reader will arise from the reported facts themselves, the accuracy of which is not attacked, and not from the manner in which the articles were written. Accepting the well pleaded facts of plaintiff’s petition as true, but not the conclusions drawn by plaintiff, and viewing the articles in a light most favorable to plaintiff’s position, we find the language used in the articles was not defamatory.

Since plaintiff has failed to show statements that are capable of a defamatory meaning, he has failed to state a cause of action. Brown v. News-World Publishing Corporation, supra.

Plaintiff also complains that the ruling of the district court on the exception circumvented his constitutionally protected right to a trial by jury. Whether the words used are capable of a defamatory meaning is a question of law for a determination by the court, and not a question of fact to be decided by a jury. If the court concludes, as a matter of law, the words are capable of having a defamatory meaning, it then becomes a jury question whether the words, as applied to plaintiff, in fact defamed him. Brown v. News-World Publishing Corporation, supra. Kihneman v. Humble Oil & Refining Company, 312 F.Supp. 34 (E.D.La.1970). Since we conclude the words here published have no defamatory meaning as a matter of law, there is nothing to be submitted to a jury.

For the foregoing reasons, the judgment of the trial court is affirmed, appellant to pay all costs of this appeal.


text:
    A. L. ROPER, Plaintiff-Appellant, v. J. B. NEWMAN, Defendant-Appellee.
    No. 13189.
    Court of Appeal of Louisiana, Second Circuit.
    March 21, 1977.
    Meadors, Atkins & Meadors by George H. Meadors, Homer, for appellant.
    Joe Rolfe White, Bastrop, for appellee.
    Before HALL, MARVIN and JONES, JJ.
   HALL, Judge.

Plaintiff filed a petition entitled “Petition For Amounts Due On Purchase Price for Horses and For Money Lent.” Defendant filed a plea of liberative prescription which was sustained by the trial court. We hold that the action was barred by the prescription of five years under LSA-C.C. Art. 3540, and, accordingly, affirm.

The facts were stipulated and are not in dispute. At various times between 1961 and 1963, plaintiff sold horses or loaned money to defendant. At the time of each of the transactions, defendant issued a check to plaintiff for the amount of the purchase price or the amount of money loaned. The 19 checks total $64,650. Defendant made no verbal or written acknowledgment of the debts after the transactions were consummated. Plaintiff did not attempt to cash these checks until 1970, at which time the drawee bank refused to honor the checks due to the length of time they had been held by plaintiff. Plaintiff filed this suit in September, 1970.

The trial court held that the suit was filed on the checks and, consequently, barred by LSA-C.C. Art. 3540’s five year prescription. Alternatively, it held that if the suit was filed on the underlying obligations, it was subject to the three year prescription of LSA-C.C. Art. 3538. The court, therefore, sustained defendant’s plea of prescription.

Plaintiff concedes that the liberative prescription of three years provided by LSA-C.C. Art. 3538 is applicable to suits on account or for money loaned. Plaintiff also concedes that the liberative prescription of five years provided by LSA-C.C. Art. 3540 is applicable to suits on checks or bills of exchange.

It is plaintiff’s position, however, that the signing of the checks by defendant to the order of the plaintiff constituted written acknowledgments of defendant’s debts to plaintiff, that the prescriptive period provided by Article 3538 ceased to be applicable, and that the action filed by plaintiff should be classified as a personal action governed by the ten year prescriptive period provided in LSA-C.C. Art. 3544.

The last paragraph of Article 3538 provides that the three year prescription “ceases from the time there has been an account acknowledged in writing, a note or bond given, or an action commenced.” The effect of the “ceasing” of the three years prescription is explained in White Bros. Co. v. Shinn, 160 So. 823 (La.App. Orl.Cir.1935):

“There is a difference between the interruption of prescription and the substitution of a new or different prescription. Where there is interruption, the same or original prescriptive period still applies and merely begins to run again from the date of the interruption. But, where there is an acknowledgment of an account in writing, an entirely new prescription is introduced, depending upon the nature of the writing; that is, whether it be merely a written acknowledgment, in which case the ten years’ prescription applies, or a promissory note, in which case the five years’ prescription would apply.”

Article 3538 does not mandate the substitution of any particular prescriptive period when the three year prescription ceases. The other articles of the Civil Code determine the length of the new or substituted prescriptive period. The substituted prescriptive period depends on the nature of the substituted obligation.

If the substituted obligation is based on a written acknowledgment of a nonspecific nature, then the prescription applicable to personal actions generally governs, that is, the prescription of ten years under Article 3544, which provides: “In general, all personal actions, except those before enumerated, are prescribed by ten years.” If the substituted obligation is a check or a note, then the prescription of five years under Article 3540 applicable to actions on checks or notes governs. Actions on checks or notes are among those “before enumerated” and Article 3544 is not, therefore, applicable.

In M. H. Nahigian, Inc. v. Haddad, 205 La. 1009, 18 So.2d 598 (1944), the court rejected the same argument as made by plaintiff in the instant case and applied the five year prescriptive period of Article 3540 to an action on a note given in payment or as evidence of an indebtedness on an account. The holding of the Haddad case is applicable to the action on the checks in the instant case.

Plaintiff cites and relies on several cases holding that where there is a written acknowledgment of an account an action thereon is governed by the ten year prescription of Article 3544. Harman & Stringfellow v. LeGrande, 151 La. 253, 91 So. 726 (1922); Victory Gravel Company v. Dyer, 17 La.App. 123, 134 So. 701 (La.App. 2d Cir. 1931); White Bros. Co. v. Shinn, supra; Ragas v. Mistich, 223 So.2d 674 (La.App. 4th Cir. 1969); and T. E. Mixon Lumber Company v. Boutte, 191 So.2d 165 (La.App. 3d Cir. 1966).

Each of the cited cases is distinguishable. White Bros, and Ragas involved written acknowledgments, not checks or notes. Harman & Stringfellow involved a note, and insofar as the maker had authority to execute the note for the preexisting indebtedness, the five year prescription was applied. The signing of the note was considered a written acknowledgment, subject to ten year prescription only to the extent and in the amount for which the maker lacked authority to execute an enforceable note on behalf of others. The Harman & Stringfellow case was carefully analyzed and distinguished in the Haddad case. Victory involved a check, but the holding was that the issuance of the check, in connection with a compromise settlement of an account, interrupted (as distinguished from “ceased”) prescription on the account. Mix-on Lumber Company, particularly relied on by plaintiff, is distinguishable in several respects. The check involved was issued by a third party — not the debtor who owed the account. Later, in another suit, the creditor was required to pay the amount of the check back to the issuer because the check was drawn in error. The creditor sued the debtor on the old account, and the court held the debtor’s endorsement of the cheek and delivery to the creditor amounted to a written acknowledgment and applied the ten year prescription. The creditor’s suit was not, as in this case, a suit on a check.

Plaintiff’s action on the checks drawn in connection with the sales and loans more than five years prior to filing suit is barred by prescription of five years under Article 3540.

The judgment of the district court is affirmed at appellant’s costs.

Affirmed.


text:
    UNION SERVICE INDUSTRIES, INC., Plaintiff-Appellee, v. Jerry BONNER et al., Defendants-Appellants and Appellees.
    No. 13190.
    Court of Appeal of Louisiana, Second Circuit.
    March 21, 1977.

      Kidd, Katz & Strickler by Paul Henry Kidd, Monroe, for defendants-appellants— Jerry Bonner, Larry Bonner, Doyle Bonner and F. H. Bonner.
    Cotton & Bolton by W. D. Cotton, Ray-ville, for plaintiff-appellee — Union Service Industries, Inc.
    Snellings, Breard, Sartor, Shafto & Inab-nett by Charles C. Trascher, III, Monroe, for defendant-appellee — Weil Brothers Cotton Co.
    Gladney & Boddie by Charles G. Gladney, Bastrop, for defendant-appellee — James W. Bonner.
    Johnson Robinson, in pro per.
    Before HALL, MARVIN and JONES, JJ.
   HALL, Judge.

Appellees Union Service Industries, Inc. and Weil Brothers Cotton, Inc. filed timely motions to dismiss this appeal, supported by affidavits. No response to the motions was filed by appellants. Because appellants failed to pay the costs of preparing the record within three days prior to the return date, we dismiss the appeal.

Union instituted this proceeding under LSA-R.S. 54:17 to determine the ownership of cotton stored by it. The trial judge found that Weil Brothers was the owner of most of the cotton in accordance with a contract between Weil Brothers and appellants. The judgment was signed on August 5, 1976. Upon appellants’ motion an order granting a devolutive appeal was signed on October 1 and filed on October 11. The appeal was made returnable November 30.

After the filing of the appeal bond, the clerk of court prepared the record on appeal. On November 10, he notified counsel for appellants that the transcript was completed and the cost was $740.16. The letter of November 10 was not answered and the costs were not paid to the clerk prior to the return date of November 30. The return date was not extended, and the record was not lodged in the Court of Appeal until December 21.

LSA-C.C.P. Art. 2126, as amended by Act 708 of 1976, provides:

“The appellant shall pay to the clerk of the trial court, not later than twenty days after the granting of the order of appeal, all costs as estimated by said clerk for the preparation of the record on appeal, and the filing fee required by the appellate court to lodge the appeal.
“The twenty-day time limit may be extended once for not more than twenty additional days by the district judge. Such extension shall be in written form.
“Any difference between the estimated costs and the actual costs shall be remitted by the clerk of the trial court or paid by the appellant, as the situation may require, not later than three days prior to the return day or extended return day.”

LSA-R.S. 13:4445, which was also amended by Act 708 of 1976, contains substantially the same requirements.

The effective date of Act 708 of 1976 was October 1,1976. The order of appeal in this case was signed October 1, 1976, and filed October 11. Payment of the costs of preparing the record on appeal in this case is governed by the article and statute as amended.

Prior to its amendment the article and statute required payment by the appellant of the costs of preparing the record on appeal and the filing fee required by the appellate court no later than three days prior to the return day or extended return day. The amendment added the provisions relative to payment by the appellant of estimated costs within twenty days after the granting of the order of appeal. The apparent purpose of the amendment is to require payment by the appellant prior to the time the record is actually prepared. The article and statute, as amended, still require payment of the balance, if any, of actual costs no later than three days prior to the return day or extended return day.

In this case, the procedure relative to payment of estimated costs was not followed. Nevertheless, appellant was required to pay the balance of actual costs no later than three days prior to the return day. Appellant was given notice of the amount due, but failed to timely pay the costs.

Where the record is not timely lodged in the Court of Appeal because of nonpayment of costs and fees for reasons imputable to the negligence, error or fault of the appellant, the appeal is subject to dismissal. LSA-C.C.P. Art. 2161; Case v. Case, La.App., 316 So.2d 418, after remand 322 So.2d 354 (La.App.2d Cir. 1975); Huff v. Caldwell, 297 So.2d 463 (La.App.2d Cir. 1974).

The motions to dismiss and the attached affidavit of the clerk of the district court establish appellant’s failure to comply with LSA-C.C.P. Art. 2126 and LSA-R.S. 13:4445. The failure to pay costs is imputable to the fault of appellants and, accordingly, the appeal must be dismissed.

For the reasons assigned, the motion to dismiss is sustained, and the appeal is dismissed at appellants’ costs.

Appeal dismissed.


author: PRICE, Judge.

text:
    J. C. COLEMAN, d/b/a Coleman Advertising Service, Plaintiff-Appellant, v. Perry B. GEAR, Defendant-Appellee.
    No. 13196.
    Court of Appeal of Louisiana, Second Circuit.
    March 21, 1977.

      Goff, Caskey, Butler & Davis by H. Russell Davis, Arcadia, for plaintiff-appellant.
    J. Rush Wimberly, III, Arcadia, for defendant-appellee.
    Before PRICE, HALL and JONES, JJ.
   PRICE, Judge.

The issue presented is whether recognition should be given a Texas judgment against a Louisiana resident upon whom service of process was obtained under the Texas “Long Arm Statute.”

Perry Gear is the editor and publisher of the Ringgold Record, a weekly Louisiana newspaper. Coleman Advertising Service is a Texas company that sells an advertising feature known as “Everyone In Church.” Coleman prepares mats and proofs for the feature and engages sponsors for the program. Coleman sent an announcement of these services to Gear who returned an enclosed card of inquiry. Coleman visited Gear in his Ringgold office, and the parties entered a contract for Coleman’s services on August 1, 1973.

In 1974, Gear became dissatisfied with the contract and discontinued payments. Coleman filed suit against the publisher in the Ninety-fifth Judicial District Court in Dallas County, Texas. Service of process upon and jurisdiction over the non-resident defendant was predicated upon Title 42, Article 2031b, Sections 3 and 4 of Vernon's Annotated Texas Statutes (the Texas Long Arm Statute). These sections of the statute provide:

Section 3
Any foreign corporation, association, joint stock company, partnership, or nonresident natural person that engages in business in this State, irrespective of any Statute or law respecting designation or maintenance of resident agents, and does not maintain a place of regular business in this State or a designated agent upon whom service may be made upon causes of action arising out of such business done in this State, the act or acts of engaging in such business in this State shall be deemed equivalent to an appointment by such foreign corporation, joint stock company, association, partnership, or non-resident natural person of the Secretary of State of Texas as agent upon whom service of process may be made in any action, suit or proceeding arising out of such business done in this State, wherein such corporation, joint stock company, association, partnership, or nonresident natural person is a party or is to be made a party.
Section 4
For the purpose of this Act, and without including other acts that may constitute doing business, any foreign corporation, joint stock company, association, partnership, or non-resident natural person shall be deemed doing business in this State by entering into a contract by mail or otherwise with a resident of Texas to be performed in whole or in part by either party in this State, or the committing of any tort in whole or in part in this State.

Judgment by default was rendered against Gear in June, 1975. In 1976, Coleman filed suit in Bienville Parish to have the Texas judgment recognized and made executory. Gear excepted to the suit alleging the Texas judgment is null for lack of jurisdiction in personam. The trial court sustained the exception and rejected plaintiff’s demands. Coleman appealed, contending the Texas judgment is entitled to full faith and credit and should be recognized and enforced by the Louisiana court. We affirm the judgment for the following reasons.

A valid state court judgment must be recognized by another state under the “Full Faith and Credit” clause of the United States Constitution. However, state courts may take cognizance of the forum state’s failure to obtain personal jurisdiction over the defendant and refuse to enforce such a judgment.

The United States Supreme Court modified the doctrine of Pennoyer v. Neff, 95 U.S. 714, 24 L.Ed. 565 (1878), in International Shoe Co. v. State of Washington, 326 U.S. 310, 66 S.Ct. 154, 158, 90 L.Ed. 95 (1945), to uphold personal jurisdiction over a non-resident under the following guidelines:

. due process requires only that in order to subject a defendant to a judgment in personam, if he be not present within the territory of the forum, he have certain minimum contacts with it such that the maintenance of the suit does not offend ‘traditional notions of fair play and substantial justice.’

The court subsequently held that a non-resident defendant must purposely engage in activities within the forum state whereby he receives benefits or protection from that state in order for the court of that state to obtain personal jurisdiction over him. Hanson v. Denckla, 357 U.S. 235, 78 S.Ct. 1228, 2 L.Ed.2d 1283 (1958).

The subject contract was negotiated and signed in Louisiana. Gear was never in Texas on any business relating to the advertising service.

Coleman contends there were minimum contacts with Texas because the mats and proofs were prepared in Dallas, the sponsorships were solicited from Texas, and payment of the contract was to be mailed to plaintiff in Texas.

We find these contacts insufficient to justify suit against Gear in Texas. In determining whether our “traditional notions of fair play and substantial justice” have been offended, the convenience of the parties to the forum state is important. The law has recognized that it is generally more convenient for interstate vendors, such as Coleman, to litigate in the vendee’s forum than force the vendee to the vendor’s state. See Riverland Hardwood Co. v. Craftsman Hardwood Lumber Co., 259 La. 635, 251 So.2d 45 (La.1971).

It would be unjust to subject Gear to suit in Texas solely on the basis that he purchased a service from a Texas corporation who conducts a part of the service at its own domicile in Texas. Such a result would subject an interstate vendee to an unreasonable inconvenience and violates the due process requirements of the Fourteenth Amendment of the United States Constitution absent other contacts between the nonresident vendee and the forum state.

The judgment is affirmed. Costs are assessed to the appellant.


author: PER CURIAM.

text:
    Glenda Lewis FREDIEU, Plaintiff-Appellee, v. Leslie Earl FREDIEU, Defendant-Appellant.
    No. 13203.
    Court of Appeal of Louisiana, Second Circuit.
    March 21, 1977.
    Jim W. Wiley, Winnfield, for defendant-appellant.
    Makar & Whitaker by John B. Whitaker, Natchitoches, for plaintiff-appellee.

      Before BOLIN, PRICE, HALL, MARVIN and JONES, JJ.
   PER CURIAM.

Notice of judgment was served on appellant on September 13, and appellant was granted orders of appeal on November 8, 1976. Appellant did not furnish security for the appeal until January 6, 1977, which was not timely. Code of Civil Procedure Article 2087.

Appellant was notified of our probable lack of jurisdiction and did not respond to our order to show cause why the appeal should not be dismissed. At appellant’s cost, the appeal is DISMISSED.


author: LEE, Justice:

text:
    C. I. T. FINANCIAL SERVICES CORPORATION v. FIRST NATIONAL BANK OF JACKSON.
    No. 49218.
    Supreme Court of Mississippi.
    March 9, 1977.
    Rehearing Denied April 20, 1977.
    King & Spencer, Robert W. King, Jackson, for appellant.
    Thompson, Alexander & Crews, Thomas R. Crews, Jackson, for appellee.
    Before INZER, SUGG and LEE, JJ.
   LEE, Justice:

The Circuit Court of the First Judicial District of Hinds County entered a replevin judgment for a mobile home in favor of the First National Bank of Jackson [FNB] and C.I.T. Financial Services Corporation [CIT] appeals. We affirm.

On May 14, 1974, Glenn Duke Mobile Home Sales, Inc. [Duke] received a mobile home from American Way Homes, serial no. 1495, and was issued the manufacturer’s statement of origin and invoice which transferred title to it. On June 26, 1974, Duke sold the home to Jeanie E. Holmes, who made a down payment of one thousand dollars ($1,000.00). FNB financed the balance of seven thousand two hundred thirty-seven dollars twenty-five cents ($7,237.25), Duke assigned its security instrument to FNB, and the financing statement was recorded in Rankin County where the home was situated. Holmes became dissatisfied with his purchase and declined to make the monthly payments. FNB directed its service agent, Mobile Home Services [MHS], to repossess the home and MHS moved it to Duke’s place of business. FNB expected to be paid the balance of the defaulted note by its insurer, and, for that purpose, cancelled its filing statement.

CIT began financing mobile homes for Duke in the fall of 1974. On November 15, 1974, it paid forty-three thousand two hundred ninety-nine dollars ninety-seven cents ($43,299.97) for eight (8) units. In return, CIT received a manufacturer’s statement of origin on the units. Among them was a statement dated November 14,1974, for one (1) home, serial no. 1495. This manufacturer’s statement of origin was identical to the manufacturer’s statement of origin issued to Duke May 14, 1974, except it indicated the home was for the year 1975 rather than 1974. CIT filed an inventory financing statement with the Chancery Clerk of Hinds County covering all said units, but did not inspect them upon receipt of the statements of origin. The parties agreed that there is only one mobile home with the serial no. 1495, that the correct year is for 1974, and that the two statements of origin with the serial no. 1495 relate to the mobile home involved in the suit.

Mississippi Code Annotated § 75-9-204(1) (1972) provides the following:

“(1) A security interest cannot attach until there is agreement (subsection (3) of Section 1-201) [§ 75-1-201(3)] that it attach and value is given and the debtor has rights in the collateral. It attaches as soon as all of the events in the preceding sentence have taken place unless explicit agreement postpones the time of attaching.”

In order for CIT to prevail, its security interest in the collateral must have attached. Duke conveyed the home to Jeanie E. Holmes on June 26, 1974, and title remained vested in Holmes. When Duke assigned the security instrument to PNB, title remained in Holmes and the security remained in FNB. Even though a statement of origin was issued to Duke on November 14, 1974, it was not effective to convey any title or interest and no title or interest passed from Duke to CIT. Since Duke had no rights in the collateral, CIT’s security interest never attached.

In Texas State Bank v. Foremost Insurance Co., 477 S.W.2d 652 (Tex.C.A.1972), the Court was confronted with the same question here. The Texas statute is almost identical with Mississippi Code Annotated § 75-9-204(1). In that case, Texas State Bank loaned Goodbar ten thousand dollars ($10,000.00) receiving as security two (2) mobile homes. He delivered to the bank a manufacturer’s certificate of origin in favor of Foremost Insurance Company, which certificate was not endorsed by any representative of Foremost. Goodbar represented to the bank that he had been authorized to pledge the manufacturer’s certificate to the bank as security for the loan. Foremost had no knowledge of the transaction between the bank and Goodbar. The trial court held that Goodbar was never an actual, apparent, or ostensible agent of Foremost and did not have apparent authority to grant to the bank a security in the mobile home. In affirming the case in favor of Foremost, the Court said:

“In order to create a valid security interest in collateral such as a mobile home, Section 9.204, Sub-section (a) of the Texas Business and Commerce Code requires: (1) That there be an agreement that a security interest in the collateral attach (see Section 1.201(3)); (2) that value be given; and (3) that the debtor have rights in the collateral. The manufacturer’s certificate of origin was at all times in the name of Foremost. The certificate had never been indorsed. It was not in ‘open’ or ‘negotiable’ status. Neither the bank nor Goodbar could have negotiated a ‘first sale’ with a prospective purchaser without an assignment, an indorsement or an authorization by Foremost. Foremost was and is the owner of the mobile home. The manufacturer’s certificate indicates that the ownership was transferred from the manufacturer to Foremost. Goodbar never obtained any rights in the mobile home from Foremost to assign to the bank. We hold that no one can give a valid security interest in such property unless he has rights in the collateral. [Citing cases].
* * * * * *
Title to the mobile home is determined by the certificate of title or the manufacturer’s certificate. This title information makes it easy for a prospective purchaser or lending agency to determine who is the true owner. The purpose of the Act is to defeat schemes by persons without authority or ownership.” 477 S.W.2d at 654, 655.

We do not address Mississippi Code Annotated § 75-9-306(5) (1972) which deals with repossession. That section is not applicable to the facts of this case since it was immaterial to CIT’s transaction with Duke that the repossessed mobile home had been returned to Duke’s lot.

For the reasons stated, we are of the opinion that the trial court was correct in entering judgment for FNB and the case must be and is affirmed.

AFFIRMED.

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

GILLESPIE, C. J., took no part.


text:
    Betty ASHLEY v. MISSISSIPPI POWER COMPANY.
    No. 49269.
    Supreme Court of Mississippi.
    March 23, 1977.
    Tullos & Tullos, L. D. Pittman, Raleigh, Pittman & Nobles, Crymes G. Pittman, Jackson, for appellant.
    Eaton, Cottrell, Galloway & Lang, Eaton A. Lang, Jr., Ben H. Stone, Gulfport, O. B. Triplett, Jr., Forest, E. Howard Eaton, Tay-lorsville, for appellee.
    Before INZER, P. J., SUGG and LEE, JJ., and W. W. BROWN, Commissioner.
   AFFIRMED.

GILLESPIE, C. J., took no part.


author: BROOM, Justice,

text:
    Sidney STUART et al. v. Mrs. Willie C. SMITH et al.
    No. 49250.
    Supreme Court of Mississippi.
    March 23, 1977.

      Adams, Forman, Truly, Ward, Smith & Bramlette, David C. Bramlette, Natchez, for appellants.
    Watson, Wilkerson & Walsh, Richard T. Watson, Woodville, for appellees.
    Before PATTERSON, ROBERTSON and BROOM, JJ.
   BROOM, Justice,

for the Court:

Cemetery rights are the subject of litigation in this cause growing out of “excepting and reserving” language of a land deed. Appellants’ (Sidney Stuart, et al.) bill against appellees (Mrs. Willie C. Smith, et al.) was tried in the Chancery Court of Wilkinson County, which court entered a decree adverse to appellants. We affirm.

In 1933 by warranty deed W. C. Stuart (son of Martha, same person as M. C. Stuart) conveyed 243 acres in Wilkinson County to Julia Morris (appellees’ predecessor in title). Following the land description, the deed reads:

[Excepting and reserving therefrom one quarter of an acre in square form surrounding the present graveyard with necessary rights to and from said graveyard at any and all times for the use of the heirs of M. C. Stuart, deceased.

Subsequently the appellees purchased from Julia Morris (or her successor in title) property completely surrounding the one-quarter of an acre, and remain in possession. In 1974, for valuable consideration, the heirs (five of the appellants) of W. C. Stuart conveyed by separate deeds unto the appel-lee Mrs. Willie C. Smith all their right, title and interest to the one-fourth acre excepted and reserved by W. C. Stuart in his 1933 deed to Julia Morris. These deeds each state that the grantor does “hereby convey and warrant unto Willie C. Smith, all my right, title and interest” in the one-quarter acre. Then in 1975 appellants (descendants of M. C. Stuart) filed their bill to (1) have the cemetery perimeter established, (2) require appellees to remove all trailers, structures and personal property from the one-quarter acre parcel, and (3) have appellees enjoined from interfering with access of M. C. Stuart’s descendants to the cemetery and their right to be buried there.

The lower court established the perimeter of the cemetery as depicted by the map drawn by R. L. Hammack. His map (introduced into evidence) indicates that the actual land upon which graves were made consists of approximately one-half of the quarter acre. In construing the 1933 deed the chancellor held it to mean that W. C. Stuart reserved unto himself in fee simple one-quarter of an acre in square form “capable of being conveyed” by his heirs who in 1974 did convey it to the appellees. Additionally, the chancellor held that the appellants have only “the right or license to be buried in the graveyard as it existed ... in 1933” with ingress and egress rights. His decree did not by metes and bounds precisely describe the one-quarter acre in square form decreed to be owned by appellees, or the fifteen foot easement decreed to appellants for access to the existing graveyard. However, there was attached to the decree, and by reference made a part of it, a map which shows the graveyard’s area colored yellow on the map. Appellants contend that it was W. C. Stuart’s effect and intention (as expressed by his language in the 1933 deed to Julia Morris) to create a one-quarter acre cemetery in square form rather than just the smaller parcel upon which people were actually buried.

Testimony introduced in this cause is summarized here. Appellees own all lands adjacent to the cemetery which is one of antiquity. No person has been interred there since about 1910. Appellants’ father and grandfather were buried elsewhere, and the same is true of W. C. Stuart, who employed the controversial excepting and reserving language in his 1933 deed to Julia Morris. Two experts, an archeologist and civil engineer, have through resistivity tests and a topographic survey established the perimeter of the cemetery as actually used for burial sites. The court found as a fact that prior to W. C. Stuart’s execution of the 1933 deed, the cemetery existed upon the land or area depicted in yellow on the map or plat of archaeologist McGahey.

The description in the controversial clause is fairly definitive of the entire parcel, but does not precisely define the perimeter of the burial ground. McLendon v. Ravesies, 178 Miss. 428, 173 So. 303 (1937), held that if any reasonable construction can be given to a land description, it will not be held void for uncertainty. No evidence in the record establishes with precise certainty the publicly recognized perimeter of the cemetery, but witnesses Florida Ford and Jim Williams state that the cemetery is located where it has always been since they have known of the Stuart family cemetery. Mrs. Smith testified that shortly after she purchased the property (approximately forty years ago), Mr. Bernie Stuart, father of the complainant Sidney Stuart, pointed out the limits of the cemetery to her and told her she could use the remainder of the land for a garden. However, McGahey by his resistivity tests located the cemetery. The evidence shows that no burials have been made there since the date of the conveyance. It follows that the cemetery would have been the same size and in the same location in 1933 as at the present. Thus the chancellor acted reasonably in fixing the “perimeter and boundaries of the cemetery . as being that shown in yellow on the map and plat” of archaeologist McGa-hey, and in fixing appellants’ “easement and right-of-way” to the cemetery as a fifteen foot strip “by the shortest and most direct route.” There is no proof or argument that this location of the “easement and right-of-way” is unreasonable or unusable or unduly restrictive as to appellants.

Appellees cogently argue that the actual burial ground should (as decreed below) be limited to the perimeter of the area upon which graves are presently located as determined by archaeologist McGahey’s resistivity tests. Appellants contend that the language “for the use of the heirs of M. C. Stuart, deceased,” gives them use of the entire one-quarter acre for burial purposes. No case precisely in point is cited from this jurisdiction and we have not found any. Morgan v. Collins School House, 160 Miss. 321, 133 So. 675 (1931), dealt with a deed in which the intended grantees were not legal entities in esse. There, even though the deed, void for lack of any grantee, failed to effectively establish a private cemetery, we held:

Under the facts shown in the testimony the permitting of people to bury their dead in the said lands, and its use as a cemetery or graveyard by persons with permission and a consent of the owners creates a situation which equity will protect to the extent of its powers to do so under the facts (Citations omitted) . The custom of ages has been for people to bury their relatives together or in the same cemetery as far as reasonably possible and giving a privilege to bury should be understood as carrying this right. (160 Miss. at 329, 133 So. at 677).

Mississippi Code Ann. § 41-43-3 (1972) is authority that this state now recognizes private or family cemetery or. burying ground. However, the statute (and none other cited in the briefs) controls here where the question involved is one of interpreting an inartfully drawn clause in the 1933 deed. Our affirmance of the lower court’s decree in no way operates to deny appellants in any manner of their reasonable use of and access to the established cemetery which the chancellor found to preexist the deed in question. His refusal to order enlargement was not inequitable upon the facts and circumstances of this case. Appellees have not cross appealed from his rejection of their theory that the cemetery had been abandoned.

Appellants question the logic of W. C. Stuart conveying 243 acres and saving unto himself one-quarter of an acre in fee simple and placing rights of ingress and egress to the cemetery in M. C. Stuart’s heirs. They ask why would he hold fee simple title in himself to the small area surrounding the Stuart cemetery. In some of the cases cited by appellants there was raised the question of why would a grantor reserve in himself a small island of land in a large tract, but the facts of those cases are distinguishable from the instant case. W. C. Stuart’s intent as construed by the chancellor is not unreasonable. Obviously he desired to maintain control of the area surrounding the burial ground and it does not appear from the record that his purpose was illegal or contrary to public policy. Appellants state that W. C. Stuart could have made no reasonable use of the small area surrounding the cemetery. Although use of the area may not have been financially rewarding to him or his successors (appellees), he certainly had a right to retain title to it as a buffer zone around the burial ground, or for a burial place for his children who (because W. C. Stuart was yet alive) in 1933 were not heirs of M. C. Stuart, or for any other purpose that may have existed in his mind not shown to be illegal or against public policy.

As construed by the lower court, W. C. Stuart’s language operated to retain in himself fee simple title to the square shaped one-quarter acre burdened with an easement in favor of appellants as to the actual burial ground. Mainly from evidence introduced by appellants, the court established the perimeter and boundaries of the cemetery in a logical manner. Our judgment is that the chancellor’s interpretation of the controversial language in W. C. Stuart’s 1933 deed was correct. His findings of fact and decree were based upon substantial evidence and sound legal principles.

AFFIRMED.

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


author: LEE, Justice,

text:
    Veronica DAMPIER v. LAWRENCE COUNTY SCHOOL DISTRICT.
    No. 49283.
    Supreme Court of Mississippi.
    March 30, 1977.

      Brown, Alexander & Sanders, Firnist J. Alexander, Jr., Jackson, for appellant.
    William A. Allain, Jackson, for appellee.
    Before INZER, SUGG and LEE, JJ.
   LEE, Justice,

for the Court:

This is an appeal from the Lawrence County Chancery Court affirming action of the Lawrence County School Board in not rehiring Mrs. Veronica Dampier, a school librarian.

The case arises under the Public School Fair Dismissal Act, Mississippi Code Annotated §§ 37-9-101, et seq. (Supp.1976), and the only error assigned is that appellant was denied due process of law and fundamental fairness in that the hearing was not held before an impartial tribunal, since the same board that declined to renew her contract also reviewed her case.

Appellant does not contend that statutory requirements were not complied with. The record indicates that appellant was given proper notices and that the act was strictly followed. She simply argues on this appeal that appellee was both prosecutor and judge in the matter and that, as a result, she was denied a fair and impartial hearing in violation of her constitutional rights.

No complaint was made to appellee, or during the proceedings before appellee, that appellant could not obtain a fair and impartial hearing, and no suggestion or request was made that the members of the board of education recuse themselves or that they were disqualified to hear the matter because of interest, bias, or prejudice. Although this Court has held that failure to make such objection at the trial waives the point [City of Biloxi v. Cawley, 332 So.2d 749 (Miss.1976) and McCune v. Commercial Pub. Co., 148 Miss. 164, 114 So. 268 (1927)], we address the constitutional question.

Appellee was without authority to employ appellant except upon recommendation of the school principal [Mississippi Code Annotated § 37-9-17 (1972), and Lott v. State, ex rel. Kelly, 239 Miss. 97, 121 So.2d 402 (1960)]. Principal Huff declined to recommend appellant for reemployment with the school district, and she was simply notified by the superintendent that she had not been reemployed. There is nothing in the record .to indicate that members of the Lawrence County Board of Education were aware of the reasons why appellant was not recommended by the principal and why she was not rehired, until the matter was actually heard.

In Withrow v. Larkin, 421 U.S. 35, 95 S.Ct. 1456, 43 L.Ed.2d 712 (1975), the Wisconsin State Examining Board notified a physician that an investigative hearing would be conducted to determine whether he had engaged in certain proscribed acts. The Board notified him that a contested hearing would be held to determine whether he had engaged in acts that were prohibited. The physician obtained an injunction from the federal district court enjoining the Board from holding the contested hearing on the ground that it violated the Constitution for the Board both to investigate and to determine the facts. Thereafter, a three-judge district court held that the Wisconsin statutes allowing the Board to act both as an investigative body and a decision-making body were unconstitutional, and an appeal was taken to the Supreme Court of the United States. That Court reversed and stated:

“The contention that the combination of investigative and adjudicative functions necessarily creates an unconstitutional risk of bias in administrative adjudication has a much more difficult burden of persuasion to carry. It must overcome a presumption of honesty and integrity in those serving as adjudicators; and it must convince that, under a realistic appraisal of psychological tendencies and human weakness, conferring investigative and adjudicative powers on the same individuals poses such a risk of actual bias or prejudgment that the practice must be forbidden if the guarantee of due process is to be adequately implemented.” 421 U.S. at 47, 95 S.Ct. at 1464, 43 L.Ed.2d at 723-724.

See also Richardson v. Perales, 402 U.S. 389, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971) and F.T.C. v. Cement Institute, 333 U.S. 683, 68 S.Ct. 793, 92 L.Ed. 1010 (1948).

We think that Hortonville Joint School District No. 1 v. Hortonville Educational Asso., 426 U.S. 482, 96 S.Ct. 2308, 49 L.Ed.2d 1 (1976) is dispositive of this case. There, certain teachers went on strike and the school board held disciplinary hearings, treating the teachers as a group. The teachers contended that the board was not impartial and that due process required an independent, unbiased decisionmaker. After the hearing, all the teachers were discharged by the board. In affirming the action of the board and holding that the teachers’ constitutional rights were not violated by the hearing before that board, the Supreme Court said:

“Respondents’ argument rests in part on doctrines that have no application to this case. They seem to argue the Board members had some personal or official stake in the decision whether the teachers should be dismissed, comparable to the stake the Court saw in Tumey v. Ohio, 273 U.S. 510, 47 S.Ct. 437, 71 L.Ed. 749, 50 A.L.R. 1243 (1927), or Ward v. Village of Monroeville, 409 U.S. 57, 93 S.Ct. 80, 34 L.Ed.2d 267, 61 Ohio Ops.2d 292 (1972); see also Gibson v. Berryhill, 411 U.S. 564, 93 S.Ct. 1689, 36 L.Ed.2d 488 (1973), and that the Board has manifested some personal bitterness toward the teachers, aroused by teacher criticism of the Board during the strike, see, e. g., Taylor v. Hayes, 418 U.S. 488, 94 S.Ct. 2697, 41 L.Ed.2d 897 (1974); Mayberry v. Pennsylvania, 400 U.S. 455, 91 S.Ct. 499, 27 L.Ed.2d 532 (1971). Even assuming those cases state the governing standards when the decisionmaker is a public employer dealing with employees, the teachers did not show, and the Wisconsin courts did not find, that the Board members had the kind of personal or financial stake in the decision that might create a conflict of interest, and there is nothing in the record to support charges of personal animosity.
* * * * * *
Respondents have failed to demonstrate that the decision to terminate their employment was infected by the sort of bias that we have held to disqualify other decisionmakers as a matter of federal due process. A showing that the Board was ‘involved’ in the events preceding this decision, in light of the important interest in leaving with the Board the power given by the state legislature, is not enough to overcome the presumption of honesty and integrity in policymakers with decisionmaking power. Cf. Withrow v. Larkin, 421 U.S. 35, 47, 95 S.Ct. 1456, 1464, 43 L.Ed.2d 712 (1975). Accordingly, we hold that the Due Process Clause of the Fourteenth Amendment did not guarantee respondents that the decision to terminate their employment would be made or reviewed by a body other than the School Board.” 426 U.S. at 491, 496, 96 S.Ct. at 2313-14, 2316, 49 L.Ed.2d at 8-9, 11-12.

We, therefore, hold that appellant was not denied due process of law in the hearing before the Lawrence County School Board.

Although the question of procedure before the Lawrence County Chancery Court is not presented or argued, in view of our holding in Smith v. Magee Attendance Center, 335 So.2d 903 (Miss.1976), and Board of Trustees of Pass Christian Municipal Separate School District v. Acker, 326 So.2d 799 (Miss.1976), which held that a de novo hearing in the chancery court under the Public School Fair Dismissal Act is unconstitutional, we distinguish the present case.

At the outset of the hearing before the chancellor, counsel for appellee advised the court that, in his opinion, the matter should be heard on the record made before the school board and not as a de novo hearing. The chancellor agreed that the matter should be heard on the school board record, and that record was filed in the proceeding. However, at the insistence of appellant, the chancellor permitted introduction of additional testimony. When rendering the decree affirming the action of the school board, the chancellor found “that the action taken by the Lawrence County Board of Education was not arbitrary or capricious and is supported by substantial evidence based upon the record made before the Lawrence County School Board.” It is apparent that the chancellor made his finding and entered the decree as an appellate court on the record made before the Lawrence County School Board and not on a de novo hearing, even though he permitted witnesses to be introduced.

We, therefore, are of the opinion that the case should be and it is affirmed.

AFFIRMED.

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


text:
    Nathaniel MILES v. STATE of Mississippi.
    No. 49600.
    Supreme Court of Mississippi.
    March 30, 1977.

      Beach, Beach, Luckett & Ross, Stephen L. Beach, Jackson, for appellant.
    A. F. Summer, Atty. Gen. by Wayne Snuggs, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before INZER, P. J., and SUGG and LEE, JJ.
   LEE, Justice,

for the Court:

Nathaniel Miles was tried and convicted in the Circuit Court of Madison County on an indictment charging burglary and larceny in one count. He was sentenced to five (5) years and appeals here.

The indictment charged burglary of the Larry Vance store building, and the larceny of merchandise valued at more than seven thousand dollars ($7,000), both in Madison County. It is undisputed that the store building was located in the city of Jackson, Hinds County, Mississippi, and that the stolen merchandise was found in a dwelling house in Madison County. The circuit judge, in chambers, announced to the attorneys that the trial would proceed on the larceny charge in the indictment, but no statement was made to the jury then or during the trial that appellant was being tried on such charge. At the conclusion of the evidence, the court did not instruct the jury that appellant was not guilty of burglary or that the case was not being submitted to the jury on the burglary charge. While some instructions defined larceny, the form of the verdict always appeared as “We, the jury, find the defendant guilty as charged.” The jury returned that verdict in open court. The judgment failed to recite the charge upon which appellant was tried and simply recited the verdict of the jury as set out above.

Anexamination of the record, excluding the court’s statement to the attorneys in chambers, indicates that appellant was being tried for the major offense of burglary, and members of the jury may well have thought that they were hearing the case on such charge. While it is permissible to charge burglary and larceny in the same indictment, a general verdict of guilty is regarded as a conviction of burglary alone. In such a situation, the lesser charge merges into the graver charge. Newburn v. State, 205 So.2d 260 (Miss.1967); Roberts v. State, 55 Miss. 421 (1877).

The only evidence connecting appellant with the crime is (1) appellant rented a house [in Madison County], subrented it to another individual, and the stolen merchandise was found in that house; (2) he had knowledge that one of the thieves was engaged in burglarious activities, and, after the merchandise was stashed in the house, (3)he borrowed a pickup truck from his brother-in-law and loaned it to one of the persons who attempted to move the merchandise.

In Harris v. State, 153 Miss. 1, 120 So. 206 (1929), Harris was convicted of burglary because the stolen goods were found in his home. He offered testimony that he was not near the house when it was burglarized, and the Court reversed because he did not have exclusive possession of his home, since his wife also occupied it. There is no evidence in the present case that appellant had been near the house since he subrented it, and it is undisputed that other persons had access to the house and were seen in it.

Jones v. State, 279 So.2d 650 (Miss.1973) involved an indictment and conviction for the sale of marijuana. Before trial, the district attorney sought permission of the court to amend the indictment in order to strike the word “sell” and substitute the words “deliver and possess.” The defendant objected, and the indictment was never actually amended. He was found guilty as charged, and, in reversing the case, this Court said:

“The motion for a new trial should have been sustained; because, although the charge of possession and delivery of marijuana is a constituent part of the charge of the sale of marijuana, the indictment actually charged the crime of sale of marijuana. There was no testimony in the record showing a sale of marijuana.
* * * * * *
The verdict of the jury as above mentioned was ‘guilty as charged.’ The jury did not specify the charge of which he was guilty. The trial judge sentenced the defendant for the charge of ‘sale of marijuana.’ This was fatal error. There is no way to determine whether or not the jury intended to find the defendant guilty of the sale of marijuana or the possession and delivery of marijuana. It is certain, however, that the defendant was not shown to be guilty of the sale of marijuana.” 279 So.2d at 652.

Miles moved the trial court for a directed verdict of not guilty when the State rested, he renewed that motion at the conclusion of his evidence, and he also requested a peremptory instruction of not guilty, ■ all of which were denied. Certainly, he was not guilty of the burglary as charged in Madison County, and we are of the opinion that under the evidence and circumstances in this case, Miles was entitled to a peremptory instruction of not guilty of larceny.

REVERSED AND APPELLANT DISCHARGED.

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


text:
    W. Karl THOMPSON v. COMMERCIAL INSURANCE COMPANY OF NEWARK, NEW JERSEY.
    No. 49175.
    Supreme Court of Mississippi.
    March 30, 1977.

      Charles R. Wilbanks, Corinth, for appellant.
    Price & Krohn, James E. Price, Corinth, for appellee.
    Before PATTERSON, P. J., and ROBERTSON and BROOM, JJ.
   BROOM, Justice,

for the Court:

Preexistence of an illness or sickness was the ground upon which the trial judge by peremptory instruction exonerated Commercial Insurance Company of Newark, New Jersey (appellee) from liability upon its medical insurance policy. The Alcorn County Circuit Court ruled that no jury issue was raised because the insured child’s “symptoms have existed ever since shortly after the child was born . . . .” We reverse.

FACTS: The policy insured Savannah Thompson (and her family) against such “sickness or disease which commences and causes loss while this policy is in force . .” Her father, W. Karl Thompson, a dentist (appellant), was issued the policy by the insurer (appellee) in February 1972 when Savannah was eleven years old. At birth Savannah’s umbilical cord was wrapped around her neck three times. While less than three years old, she exhibited fretfulness, and prior to school age was found to be hyperactive, requiring medication. In early years she was diagnosed as a slow learner and entered school in an EMR (educable mentally retarded) class where she remained three years. When placed into a regular classroom, her hyperactive condition worsened; she had a very short attention span, and frequently daydreamed.

Beginning in June 1972, Savannah was hospitalized for approximately two years at Angie Nall Hospital, Beaumont, Texas. Her father’s application for the policy did not indicate that she had any mental abnormality. His testimony was that he considered her problem educational rather than medical. No argument or suggestion is made that he was guilty of fraudulent misrepresentation, withholding or concealing any fact or circumstance relating to Savannah’s condition or history.

Dr. Leonard A. Toomin, a specialist in pediatrics (Director of Angie Nall Hospital), examined Savannah in June 1972. He found her with almost all (25 of a possible 32) the symptoms of the typical child with minimal brain dysfunction syndrome. His opinion was that her condition had existed several years prior to his examination. Other medical doctors (including a pediatrician) saw Savannah on previous occasions, but the record does not show that anyone made the syndrome diagnosis until Dr. Too-min pronounced it. Dr. Roscoe Boyer, teacher of educational psychology and special education at University of Mississippi, gave Savannah three tests when she was eleven years old (her birth date was August 23, 1961) and found her developmental age to be six and a half years. She was enrolled in the third grade at a first grade reading level, and had an IQ of 67. Miss Peggie McDonald was Savannah’s special education teacher in an EMR class of 1970— 71. McDonald stated that the child could not perform classroom work expected of a child of her age.

Upon these facts, and after both sides rested, the trial judge granted the defense a peremptory instruction. on the ground that the condition for which Savannah was hospitalized preexisted issuance of the policy-

Appellant argues that the trial court erred in holding (upon the insurer’s demurrer) that the plaintiff (appellant) must allege in his declaration that the illness for which recovery of medical expenses is sought was contracted while the policy was in force. By amending his declaration appellant waived any procedural error in this regard. Montgomery v. Dillingham, 11 Miss. 647, 3 Smedes & Marshal 647 (1844); Mitchell v. Film Transit Co., 194 Miss. 550, 13 So.2d 154 (1943); 71 C.J.S. Pleading § 320c (1951); 4 C.J.S. Appeal and Error § 212c (1957). In our jurisprudence the defense based upon the proposition that the illness preexisted the effective date of the policy is generally an affirmative defense. Blue Cross & Blue Shield of Mississippi, Inc. v. Mosley, 317 So.2d 58 (Miss.1975); American Life Ins. Co. v. Walker, 208 Miss. 1, 43 So.2d 657 (1949). The question of procedure as to who must bear the burden of proof as to the alleged preexistence of the illness or disease is without significance in this case which was taken from the jury after both sides rested. Before resting, both sides put on proof without undue restriction and it is not made to appear that the appellant was prejudiced by having to bear the burden of proof with reference to the matter of the preexistence of Savannah’s illness.

Appellant contends he presented sufficient evidence to warrant a jury trial. In deciding whether the peremptory instruction was proper, we will accept the testimony of the appellant as true along with all reasonable inferences in his favor which may be drawn from the evidence. On the issue of preexisting disease, Blue Cross & Blue Shield of Mississippi, Inc. v. Mosley, 317 So.2d 58, 61 (Miss.1975), held that:

[T]he ailment or disease will ordinarily be deemed to exist when a distinct symptom, ailment or condition manifests itself from which a doctor can with reasonable accuracy diagnose the disease .

In Mosley the doctor not only found symptoms of Mrs. Mosley’s disease but accurately diagnosed her illness prior to the effective date of policy coverage. The record before us reveals that many of the symptoms of Savannah’s illness (minimal brain dysfunction) were noticed but not accurately diagnosed during her infancy and early childhood. However, it is clear that the proof showed her condition was not finally and accurately diagnosed until Dr. Toomin made the diagnosis in June 1972 when he performed an EEG (electro-encephalogram) which revealed an abnormality — a convulsive disorder of the petit mal type. Such abnormality was not revealed by the prior EEG of another doctor.

This record demonstrates that several distinct symptoms of Savannah’s minimal brain dysfunction syndrome were manifested prior to the effective date of the policy. The record shows also that she was seen by each of the following: her general practitioner, her pediatrician, and by a teacher of educational psychology, but none of them made an accurate diagnosis prior to the policy’s effective date. Dr. Toomin, a specialist in a very narrowly defined field, made such diagnosis in June 1972. We hold the case should be submitted to a jury with appropriate instructions to apply our definition of preexisting illness in Mosley to this case. Accordingly, we must reverse and remand for a new trial consistent with this opinion.

REVERSED AND REMANDED.

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


author: WALKER, Justice.

text:
    Gloria J. SMITH v. MISSISSIPPI EMPLOYMENT SECURITY COMMISSION.
    No. 49226.
    Supreme Court of Mississippi.
    March 30, 1977.

      Barry H. Powell, Stella L. Terrell, Jackson, for appellant.
    Fred J. Lotterhos, Jr., Jackson, for appel-lee.
    Before GILLESPIE, SMITH and WALKER, JJ.
   WALKER, Justice.

Mrs. Gloria J. Smith, who was laid off from her job at Desoto, Inc., of Jackson while on leave of absence due to pregnancy, made application for unemployment benefits from the Mississippi Employment Security Commission. She was denied benefits on the grounds that she had left work because of pregnancy. This decision was reaffirmed on application for reconsideration by a referee of the Board of Review, as well as by the entire Board of Review of the Commission. In its opinion, the Board of Review concluded:

In the instant case, Claimant is deemed to have “left work voluntarily”, within the meaning of the Law on August 30, 1974, notwithstanding the fact that she expected to return to work after the birth of her baby and that she had obtained a maternity leave of absence in accordance with company policy. The fact that she was later placed on lay-off status by her employer, due to lack of work, is likewise immaterial. The determination as to whether an individual is subject to disqualification under the above section [Mississippi Code Annotated section 71-5-513A(L) (1972)] is based upon the individual’s reason for leaving work at the time she did leave work rather than on her reason for not returning to work at some later date. In this case, the Claimant’s reason for leaving work on August 30,1974, was the fact of her pregnancy. Pregnancy of a married woman, as in this case, is deemed to be a marital circumstance, which cannot be deemed “good cause” for leaving work under the above section of the Law.

The decision of the Board of Review was affirmed by the Circuit Court of the First Judicial District of Hinds County, Mississippi.

In her appeal, Mrs. Smith first contends that the Commission and the court misinterpreted Mississippi Code Annotated section 71-5-513A(l) (1972). That section reads:

A. An individual shall be disqualified for benefits:
(1) For the week, or fraction thereof, which immediately follows the day on which he left work voluntarily without good cause, if so found by the commission, and for each week thereafter until he has earned remuneration for personal services (whether performed for an employer as in this chapter defined or otherwise) equal to not less than eight (8) times his weekly benefit amount, as determined in each case, provided that marital, filial, and domestic circumstances and obligations shall not be deemed good cause within the meaning of this subsection.

Mrs. Smith further argues that the quoted section, assuming it was properly interpreted by the Commission and the court, violates provisions of the Federal Social Security Act. Furthermore, she contends that this provision denies her due process of law and equal protection of the laws, as secured by the Fourteenth Amendment to the United States Constitution. We need not reach the federal, questions presented by Mrs. Smith, since we have concluded that the Commission erred in its determination that she left work within the meaning of the statute on August 30, 1974, instead of December 3, 1974.

The facts in this case are not in dispute. Mrs. Smith took a leave of absence from her position as an accounting clerk at Deso-to, Inc., on August 30, 1974, because of her pregnancy. Her employer informed the Commission that it was company policy to grant a three-month leave of absence for pregnancy without terminating the employment. Pursuant to their agreement, Mrs. Smith was supposed to return from leave on December 3, 1974. However, prior to that time, she was informed that because of declining business conditions her position had been temporarily eliminated, and she was being “involuntarily” laid off. Mrs. Smith does not seek to recover benefits for the period of her leave of absence, but seeks benefits only from December 3, 1974.

This Court held in Luke v. Mississippi Employment Security Comm’n, 239 Miss. 292, 123 So.2d 231 (1960), that pregnancy falls within the meaning of “marital, filial, and domestic circumstances and obligations,” as defined by the statute, and does not constitute good cause for leaving work. Mrs. Smith does not challenge this holding. Rather, she contends that she did not leave work because of her pregnancy, but only took a leave of absence. She asserts that her employment continued until she was involuntarily laid off on December 3, 1974.

Precisely this same contention was presented to the Court in Franklin v. Mississippi Employment Security Comm’n, 242 Miss. 447, 136 So.2d 197 (1961). The Court did not explicitly discuss the question, but relied without elaboration on Luke, supra. Thus, the Court implicitly held that the claimant left work when she began her leave of absence. This reasoning was made more explicit by dictum in Mississippi Employment Security Comm’n v. Stafford, 248 Miss. 95, 98, 158 So.2d 55, 56 (1963). We believe that both reason and precedent require that the holding of Franklin be overruled and the dictum in Stafford be disavowed.

Mrs. Smith did not leave her employment, but temporarily suspended it pursuant to an agreement with her employer. Such temporary suspensions of a continuing employment are common. Employees may be allowed vacation without pay, or they may arrange leaves of absence, for instance, because of illness or duty with the military reserve. In none of these cases can it reasonably be asserted that the employee has left work. If, during his leave, his position is terminated, he cannot be said to have left work voluntarily. Likewise, it seems to us that when an employer grants an employee a leave of absence because of pregnancy, she has not left work within the meaning of the statute.

This reasoning is supported by our opinion in Mississippi State Employment Security Comm’n v. Jackson, 237 Miss. 897, 116 So.2d 830 (1960). That is the only case in which this Court has explicitly considered the question of a temporary interruption of work without pay pursuant to an agreement between the employer and the employee. In that case, the collective bargaining agreement between the employer and its employees provided that the plant would be closed for one week at Christmas. Employees with sufficient seniority would be paid for that week; employees without that seniority would not be paid. In 1957, the plant closed down for three weeks at Christmas, because of excess inventory. Employees with sufficient seniority were paid for Christmas week, as provided in the agreement, but not for the other two weeks. The rest of the employees were not paid at all. The latter group made application for unemployment benefits, and were allowed benefits the first and third weeks, though not for the second week, during which the plant was closed pursuant to the collective bargaining agreement. This Court concluded that during the week that those employees had agreed not to work and not to be paid, they were not unemployed within the meaning of the statute. In his opinion, Justice Gillespie wrote:

The shutdown for Christmas week was in accordance with the union contract and the union represented all of the appellees. It cannot be said that the appellees were unemployed within the meaning and purpose of the statute. They were not laid off; their employment had not been terminated, and the relationship of employer and employee continued during the week the plant was closed for the purposes stated. (Id. at 901, 116 So.2d at 832).
The Court went on to hold that the employees were entitled to unemployment benefits for the week following the week in which they had failed to work pursuant to their agreement.

Mrs. Smith’s case presents a similar situation. On August 30, 1974, she and her employer agreed that she would not work until December 3, 1974, and that she would not be paid for that time. Like the employees in Jackson, supra, she was entitled to return to work at the end of that period only if there was work available. As in Jackson, it cannot be said that she was laid off, and it cannot be said that her employment was terminated. When there was no work for her at the end of the agreed period, she was entitled to unemployment benefits, just as the workers in Jackson were entitled to unemployment benefits for the third week of their Christmas layoff. It is immaterial that her leave of absence was pursuant to an individual agreement between her and her employer, rather than in accordance with a collective agreement as in Jackson. Therefore, we conclude that Mrs. Smith left work within the meaning of the statute at the end of her leave of absence, on December 3, 1974, because of the reduction in her employer’s work force and not because of her pregnancy.

The Supreme Court of Louisiana faced precisely the same question in Southern Bell Tel. & Tel. Co. v. Administrator, Division of Employment Security, 252 La. 519, 211 So.2d 634 (1968). In that case, the claimant had taken a leave of absence due to her pregnancy, pursuant to the agreement in effect with her employer. At the end of her leave, she was informed that no work was available for her. The Court concluded:

Hence, the fundamental and underlying cause of Mrs. Middleton’s unemployment following her application for reinstatement was not her prior condition of pregnancy but the then existing unavailability of work on the part of the employer, and it was only at this time that she “left (her) employment” and accordingly, such leave was for “good cause connected with (her) employment.” (Id. at 526, 211 So.2d at 636.)

This opinion does not detract form our holding in Mississippi Employment Security Comm’n v. Corley, 246 Miss. 43, 148 So.2d 715 (1963), and Luke, supra. In this opinion, we hold only that Mrs. Smith’s employment continued during her pregnancy, by virtue of an explicit agreement with her employer that she would be on leave of absence for three months and that she would have a job when she returned at the end of that period. Had she quit work without any such agreement, as in Luke and Corley, she would be deemed to have left work voluntarily. In this case, Mrs. Smith and her employer agreed to continue her employment during her pregnancy. Her employment was terminated involuntarily at the end of her leave of absence because of the reduction in her employer’s work force. Thus, the Commission clearly erred in holding that she left work within the meaning of the statute at the beginning of her pregnancy leave.

The case is therefore remanded to the Commission with instructions to grant Mrs. Smith the unemployment benefits to which she is entitled, beginning December 3, 1974.

REVERSED AND REMANDED.

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

      . The plant was closed from December 13, 1957, until January 6, 1958. The claims examiner concluded that the claimants had contracted not to work during the second week (Christmas week) of the three-week layoff. Id. at 898-99, 116 So.2d at 831.