author: DOMENGEAUX, Judge.

text:
    Glen Ellender O’QUAIN, Plaintiff and Appellant, v. ROCKWOOD INSURANCE COMPANY, Defendant and Appellee.
    No. 5529.
    Court of Appeal of Louisiana, Third Circuit.
    July 6, 1976.
    Rehearing Denied Aug. 4, 1976.

      Quirk, Handley & La Vern, by John F. Lavern, Lake Charles, for plaintiff and appellant.
    Raggio, Farrar, Cappel & Chozen by Fred L. Cappel, Lake Charles, for defendant and appellee.
    Before MILLER, DOMENGEAUX and PAVY, JJ.
   DOMENGEAUX, Judge.

Plaintiff-appellant, Glen Ellender O’Quain, instituted this action to recover benefits, penalties and attorney’s fees under the Workmen’s Compensation Act against Rockwood Insurance Company, the compensation carrier of his former employer. The insurance company filed a peremptory exception of prescription which the trial judge sustained. From the judgment of dismissal plaintiff has appealed.

Plaintiff was employed by the City of Sulphur, Louisiana, and functioned in various capacities. His petition alleges that on or about December 23, 1972, he received a disabling injury while working on a city garbage truck. Plaintiff received weekly compensation benefits until February 15, 1974. This suit was filed July 24, 1975.

Defendant contends that plaintiff’s action has prescribed under the provisions of LSA-R.S. 23:1209 since it was instituted more than one year after the last weekly compensation payment was made. Plaintiff maintains that he was paid wages in lieu of compensation until June 2, 1975, thus interrupting prescription.

On July 21, 1973, several months- after his accident, plaintiff returned to work for the City of Sulphur and performed light duty at $2.00 per hour for the Department of Street Safety. During his term with the Department of Street Safety plaintiff received a raise to $2.15 per hour as did all other city employees. On February 24, 1974, plaintiff was transferred to the Sanitation Department where he continued to perform light duty and received standard wage increases to $2.60 per hour. His supervisor in that department, Joseph L. Hanks, testified as follows:

“Q. What type of work did he do, Mr. Hanks ?
A. Well, he would take care of the grass-cutting, scraping paint, take care of the lab office, mopping floors, and seeing that it stayed sanitary.
Q. During these several months in 1974 when Mr. O’Quain was working under you in the sewer department doing what you described, was he working a full week ?
A. Yes, sir, 40 hours a week.
Q. And that is a standard work week for employees in that department?
A. That is.
Q. Was he keeping busy ?
A. At all times.”

Plaintiff continued to work for the Sanitation Department until April of 1975, although during that period he took considerable sick leave apparently for difficulties unrelated to his injury of 1972. On April 14, 1975, plaintiff allegedly received a release from his physician certifying his ability to return to heavier labor. At that time he returned to his original job with the garbage truck department and worked for about eight weeks after which time he resigned due to inability to perform his job.

The Mayor of the City of Sulphur, Adias Sonnier, who hired plaintiff, testified as follows:

“THE COURT: Let me ask you this, Mayor. In order to keep the man, put him on some kind of income-producing work, did you create a job for him, in effect ?
THE WITNESS: Your Honor, I didn’t create a job, because that department that he was working in men come and go, so actually he — It wasn’t an extra job he was doing. I didn’t hire him because I just wanted to put him on. I really needed a man in that department to do that work that he was doing. It’s unfortunate that the municipality is not able to pay the salary like the big companies are paying and we have a pretty big turnover in our employment, so he just filled somebody else’s shoes when I put him on.
Q. Just one question, Mayor. When he was on light duty status, in your opinion, was he earning whatever you were paying him?
A. Yes. Right.”

Plaintiff himself also testified that he worked a 40-hour week during his “light duty” period and that he was kept busy during that time.

The basic test for determining whether money received by an injured employee is wages in lieu of compensation is well enunciated in the case of Heymann v. Dixie Leasing Corporation, 250 So.2d 118 (La.App. 4th Cir. 1971) :

“The general rule is that when the services rendered by a disabled employee following a compensable accident were not commensurate with the amount of wages paid and the employee did not actually earn all of his pay, such wages will be deemed to have been paid in lieu of compensation and will interrupt the one year prescription provided by LSA-R.S. 23:1209. The basic test is whether the wages paid subsequent to the injury were actually earned. The mere fact that the duties before and after the accident were similar or dissimilar, heavier or lighter, is relevant but not determinative of the issue. And whether the wages were actually earned is determined by the facts and circumstances of each particular case.” (Citations omitted)

See also the cases of Daigle v. Liberty Mutual Insurance Company, 205 So.2d 507 (La.App. 3rd Cir. 1968), and Ledoux v. William T. Burton Company, Inc., 171 So. 2d 795 (La.App. 3rd Cir. 1965).

In view of the above quoted testimony of Mayor Sonnier and Mr. Hanks, which was corroborated by the plaintiff, we find a reasonable basis in the evidence to support the trial judge’s finding that the plaintiff actually earned the wages paid to him by the City of Sulphur and that prescription was not interrupted by the payment of said wages.

For the above and foregoing reasons the judgment of the District Court is affirmed. Costs of this appeal are assessed against plaintiff-appellant.

AFFIRMED.


source: Caselaw Access Project

author: MILLER, Judge.

license: Public Domain

text:
    Preston J. CHIASSON and Della D. Chiasson, Plaintiffs-Appellees, v. LAW FIRM OF DRAGON & KELLNER, Intervenor-Appellant.
    No. 5527.
    Court of Appeal of Louisiana, Third Circuit.
    July 6, 1976.
    Rehearing Denied Aug. 4, 1976.

      Robert A. Dragon, Jr., Lafayette, for defendant-appellant.
    Nathan A. Cormie and Assoc, by Ronald J. Bertrand, Lake Charles, for plaintiffs-appellees.

      Davidson, Meaux, Onebane & Donohoe by Edward C. Abell, Jr., Lafayette, for defendant-appellee.
    Before MILLER, DOMENGEAUX, and PAVY, JJ.
   MILLER, Judge.

Intervenors Dragon & Kellner suspen-sively appealed the judgment rejecting their claim for attorney fees and expenses under their contingent fee contract with plaintiffs Preston J. and Della D. Chias-son. The Chiasons moved to dismiss the appeal. We deny the motion to dismiss and affirm the trial court judgment.

On August 12, 1971, the Chiassons were injured in Lafayette Parish when their automobile was rear-ended by one driven by Hutchison, the defendant in the original lawsuit. At trial the Chiassons were not represented by intervenors and the court awarded the Chiassons $4,135.19. That judgment is final and Hutchison’s insurer deposited $4,135.19 in the registry of court.

The Chiassons’ first attorneys, Dragon & Kellner, were employed under a unilateral contingent fee contract signed by the Chiassons providing: —

We do hereby agree to pay (Dragon & Kellner) 25 per cent of any settlement obtained in said case if same is settled at any time prior to instituting of suit, and 1/3 per cent of any settlement, verdict or recovery obtained in said action after instituting of suit, and they in addition thereto receive all costs and disbursements recovered. We hereby agree with said attorneys not to make any settlement unless they are present and receive their share in accordance with this agreement.

Suit was promptly instituted. Although the Chiassons wanted their attorneys to negotiate for a settlement of the $114,000+ claim, the Chiassons and their attorneys never agreed between themselves to a minimum settlement figure. Without prior approval of their clients, Dragon & Kellner negotiated a settlement of $5,090.62 which would have netted from $1,700 to $1,900 as the Chiassons’ share. Dragon & Kellner presented the settlement papers and a draft to the Chiassons and recommended they accept. The Chiassons rejected the settlement offer and sought representation elsewhere. They paid Dragon & Kellner $800 ,of the $1,027.25 claimed as money expended by Dragon & Kellner on behalf of the Chiassons. As noted, the litigation resulted in a $4,135.19 judgment.

Dragon & Kellner claim an attorney’s fee of one-third of $5,090.62, the gross amount of the negotiated settlement, plus $227.25 as reimbursement for expenses in excess of the $800 previously paid by the Chiassons. They filed a lien claiming $1,924.12.

After the $4,135.19 was deposited in the registry of court, Dragon & Kellner ruled the Chiassons into court to show cause why they should not be entitled to $1,924.-12 of the $4,135.19 in the registry of court, this in addition to the $800 previously received. After trial of the rule, the trial court assigned written reasons refusing to recognize the terms of the contingent fee contract and ruled that Dragon & Kellner are “entitled to recover on the basis of quantum meruit and the matter is hereby ordered reopened for the purpose of receiving evidence on this issue.” The court concluded its reasons with the statement that an appropriate judgment would be signed upon presentation. No judgment was presented.

Approximately one year later the Chias-sons ruled Dragon & Kellner into court to show cause why their lien should not be cancelled and why the Chiassons should not be paid the $4,135.19 on deposit. Dragon & Kellner answered the rule and stated in their answer: — 1) the court had never fixed a trial date for the purpose of receiving evidence on the issue of quantum meruit; 2) for their claim in quantum meruit, the law firm resubmitted the evidence taken at the prior hearing on their claim under their contingent fee contract; and 3) they waived their appearance at the hearing of Chiassons’ rule to cancel their lien.

Following that hearing the trial court ordered the clerk of court to 1) cancel Dragon & Kellner’s lien and 2) pay the entire $4,135.19 to the Chiassons and their attorney who represented them at trial. Dragon & Kellner perfected a suspensive appeal from that judgment.

MOTION TO DISMISS APPEAL

The Chiassons contend Dragon & Kellner’s appeal should be dismissed because they are appealing the trial court’s “Reasons for Judgment” on their rule for attorney’s fees and the judgment dismissing their rule has not been signed. We reject that contention on finding the appeal to have been taken from the judgment denying their claim for attorney fees. The appeal was timely perfected. The fact that Dragon & Kellner waived appearance and elected to stand on evidence previously introduced in the record does not preclude them from appealing the judgment rendered against them.

ON THE MERITS

Dragon & Kellner rely on Doucet v. Standard Supply & Hardware Company, 250 So.2d 549 (La.App. 3 Cir. 1971) and Lytle v. Commercial Insurance Company of Newark, N. J., 285 So.2d 289 (La.App. 3 Cir. 1973) as authority for recovery of the full amount claimed. In both cases, the clients authorized their attorneys to settle the case, then later changed their minds. The trial court distinguished these cases in that here the Chiassons “never approved the settlement nor even authorized Mr. Kellner to negotiate a settlement for the figure offered by defendants.”

LSA-R.S. 37:218 authorizes contingent fee contracts which stipulate “. that neither the attorney nor the client may, without the written consent of the other, settle, compromise, release, discontinue or otherwise dispose of the suit or claim.”

The contingent fee contract prepared by intervenors prohibited the Chias-sons from settling unless intervenors were present and received their share of the settlement, but did not treat the problem of settlements negotiated by the attorneys without prior approval of their clients. This provision is not in full compliance with the quoted provisions of LSA-R.S. 37:218. Accordingly, the attorneys had no right to bind their clients to the settlement they negotiated. A contingent fee contract must be made in full compliance with LSA-R.S. 37:218 to be enforced. Succession of Vlaho, 140 So.2d 226 (La.App. 4 Cir. 1962).

When an employment contract between attorney and client is revoked, the attorney is entitled to recover for services actually performed on the basis of quantum meruit. The attorney has the burden of proving the value of his services and the extent of his actual expenses. Smith v. Westside Transit Lines, Inc., 313 So.2d 371 (La.App. 4 Cir. 1975); Guilbeau v. Fireman’s Fund Insurance Company, 293 So.2d 216 (La.App. 3 Cir. 1974); Kramer v. Graham, 272 So.2d 716 (La.App. 3 Cir. 1973).

Recovery under quantum meruit is limited to the actual value of services rendered. Custom Builders & Supply, Inc. v. Revels, 310 So.2d 862 (La.App. 3 Cir. 1975), and authorities therein cited.

There is no manifest error in the trial court’s determination that Dragon & Kellner’s fee must be based on quantum meruit. They could have introduced evidence to establish the value of their services and actual expenses. They elected instead to rely on testimony presented at a prior hearing. This testimony gives no indication as to the amount of time spent or actual expenses incurred on behalf of the Chiassons. The law firm failed to carry its burden of proof.

The trial court must have concluded $800 fairly compensated them for their actual services and expenses. The record in this case was limited at their request and does not establish manifest error in the trial court’s conclusion.

The trial court judgment is affirmed at appellant’s costs.

AFFIRMED.


text:
    Mrs. Dorothy DUCOTE, Plaintiff and Appellant, v. Melvin HARRIS, d/b/a Colonial Nursing Home, and Highlands Insurance Company, Defendants and Appellees.
    No. 5494.
    Court of Appeal of Louisiana, Third Circuit.
    July 6, 1976.
    Rehearing Denied Aug. 4, 1976.

      Bennett & Wilson, by Donald R. Wilson, Marksville, for plaintiff and appellant.
    Stafford, ,Randow, O’Neal & Scott by Hodge O’Neal, III, Alexandria, for defendants and appellees.
    Before MILLER, DOMENGEAUX and PAVY, JJ.
   DOMENGEAUX, Judge.

Plaintiff-appellant, Dorothy Ducote, instituted this action seeking benefits under the Louisiana Workmen’s Compensation Act and penalties and attorney’s fees against defendants-appellees, Melvin Harris, d/b/a Colonial Nursing Home, her former employer, and Highlands Insurance Company, its insurer. Defendants filed an exception of prematurity which the trial judge sustained. From the judgment of dismissal plaintiff has appealed. We reverse.

Plaintiff’s petition alleges that on or about March 7, 1975, she was injured while in the employ of the defendant Harris. She subsequently received weekly compensation benefits and extensive medical treatment from the time of her injury until the institution of this suit. Defendant contends, and the trial judge found, that plaintiff failed to comply with the requirements set forth in LSA-R.S. 23:1314 and that consequently her institution of this action was premature.

LSA-R.S. 23:1314 provides as follows:

“§ 1314. Necessary allegations; support for allegations
Unless in the verified petition above referred to it is alleged (where the petition is filed by the employee or his dependents) that the employee or the dependents is not being or has not been paid, and that the employer has refused to pay, the maximum percent of wages to which petitioner is entitled under the provisions of this Chapter, or that the employee has not been furnished the proper medical attention, or that the employee has not been furnished with copies of the reports of examination or examinations made by employer’s medical practitioners after written request therefor has been made under the provisions of this Chapter, the presentation or filing of such petition shall be premature and shall be dismissed; when such allegations are contained in such petition and are denied by the employer at the time fixed thereunder by the court, if it be shown that such allegations are without reasonable cause or foundation in fact, such petition shall be dismissed; and the question of whether or not such allegations of nonpayment or of failure to render medical attention or failure to furnish medical reports is justified under the facts shall be determined by the court before proceeding with the hearing of the other issues involved.”

Plaintiff concedes that she was receiving weekly compensation payments but contends that her right to bring this action is based upon the two latter provisions of the above statute, namely defendants’ failure to provide medical treatment and their refusal to furnish her with reports of some of the treating physicians.

FAILURE TO PROVIDE PROPER MEDICAL ATTENTION

The record reveals that at the time of the suit defendants had paid approximately $5,000.00 for medical services and drugs received by plaintiff as a result of her accident. However, plaintiff contends that defendants refused or neglected to pay a particular bill from the Opelousas General Hospital in the amount of $313.30. Plaintiff claims that the hospital billed her directly on more than one occasion for this sum and that she became distraught and feared that future medical services would be denied her because of nonpayment of said bill. The evidence indicates that defendants received a copy of this bill from plaintiff on November 4, 1975, and immediately wrote to the hospital asking for an itemization. The bill was paid on December 4, 1975. The record does not indicate that defendants had prior notice of the existence of said obligation. Certainly, they were entitled to an itemization. Under these facts we cannot say that defendants failed or refused to pay the bill, nor can we conclude that they were remiss in their duty to provide proper medical attention to plaintiff.

Furthermore, under our jurisprudence, failure to pay a workmen’s compensation claimant’s medical bill cannot be equated with a failure to provide proper medical attention. As we stated in Jack v. Fidelity & Casualty Company of New York, 306 So.2d 806 (La.App. 3rd Cir. 1975):

“In determining whether a suit should be dismissed on an exception of prematurity under LSA-R.S. 23:1314, the test is not whether the employer has refused to pay the medical bills incurred, but instead it is whether the employee has not been furnished the proper medical attention. Moore v. American Motorist Insurance Company,. 216 So.2d 674 (La.App. 3 Cir. 1969); Dugas v. Houston Contracting Company, 191 So.2d 178 (La.App. 3 Cir. 1966).”

DEFENDANTS’ FAILURE TO FURNISH MEDICAL REPORTS

Immediately ' after her injury plaintiff was sent to Doctor Joel Jackson in Cotton-port, Louisiana, by her employer. Doctor Jackson apparently referred Mrs. Ducote to Dr. Luke Bordelon, an orthopedist, in Opelousas, Louisiana. A myelogram was performed on plaintiff at Opelousas General Hospital, and she was thereafter referred by Doctor Bordelon to Doctor T. E. Banks, an orthopedist in Alexandria, Louisiana. The record indicates that a copy of the myelogram was forwarded to Doctor Banks but that he returned it after a short time.

Mrs. Ducote was examined by Doctor Banks in the latter part of June, 1975, and the record contains a copy of a report which that physician sent to Doctor Borde-lon on July 1, 1975. Thereafter, plaintiff’s attorney wrote to Doctor Banks on or about September 19, 1975, requesting copies of the myelogram and any reports which he had prepared on Mrs. Ducote to that date. Doctor Banks wrote plaintiff’s attorney stating in part:

“Reports dated 1 July and 11 July 1975 have been afforded Dr. Bordelon as well as the employer, .Colonial Nursing Home of Marksville, Louisiana. This is a compensation case and will be adjusted by Crawford and Company, 3656 Government Street, Alexandria, Louisiana 71301. Any inquiry should be made to the attention of Mr. Marshall Long, Manager, of Crawford and Company.
I would appreciate it if you would contact Crawford and Company for a copy of the July dated reports.”

A carbon copy of this letter was sent to Mr. Marshall Long, with Crawford and Company Adjusters, in Alexandria, Louisiana. We note, at this point, that the record indicates that Doctor Banks was in error in his statement that Crawford and Company was in possession of the reports mentioned in his letter. Crawford and Company’s claim, which is fully supported by the evidence, is that they did not receive said reports until much later.

On November 4, 1975, plaintiff’s attorney wrote to Mr. Jim Gallent, an adjuster with Crawford and Company in Alexandria, and made formal demand upon him for copies of the July 1st report of Doctor Banks and the myelogram performed at Opelousas General Hospital. The attorney’s letter indicated that the matter had been previously discussed and informed the adjuster that if no response were forthcoming within ten days legal action would be taken.

After failing to receive any reaction to the above mentioned communication, plaintiff’s attorney filed this suit on December 1, 1975.

On December 17, 1975, the adjuster finally wrote to Doctor Banks stating that he had never received the July 1, 1975, report and at that time requested a copy of that record. The very next day, December 18, 1975, Doctor Banks forwarded a copy of the report in question to the adjuster who then waited until December 26, 1975, before sending a copy of it to plaintiff’s attorney.

Under the factual situation presented by this litigation, we are of the opinion that Doctor Banks was the “employer’s medical practitioner” as contemplated by LSA-R.S. 23:1314. Plaintiff was referred to Doctor Banks by Doctor Bordelon to whom plaintiff was referred by Doctor Jackson, who initially examined plaintiff at the request of her employer. Furthermore it is quite evident from a review of the record that Doctor Banks considered himself to have been retained by the employer and/or its insurer to examine the plaintiff.

While it is true that the adjuster was not in receipt of the July 1, 1975, report of Doctor Banks until approximately December 18, 1975, we find that this situation was created solely by the adjuster’s own tardiness and apparent lax attitude in attempting to obtain said report from the physician. Defendants should have been put on notice by Doctor Banks’ letter to plaintiff’s attorney on September 24, 1975, (a carbon copy of which was sent to the adjusters) which stated that Crawford and Company was in possession of the medical reports and that any communication relative thereto should be made to that organization. Plaintiff’s attorney’s letter to the adjuster on November 4, 1975, was a formal written notice for production of the reports as required by the statute. While the response period of ten days afforded the adjuster by plaintiff’s attorney in the November 4th communication was not necessarily controlling, it at least served to inform the adjuster that the matter required some attention on his part in the relatively near future. After obtaining no reaction from the adjuster for a period of approximately four weeks, plaintiff’s attorney apparently felt that his only alternative was to litigate. Even after the suit was filed the adjuster waited an additional seventeen days before attempting to obtain the desired report or reports. We find significance in the fact that upon receipt of request for a copy of his report, the response to the adjuster by Doctor Banks was immediate. The record indicates that he complied with the adjuster’s request within approximately 24 hours.

We feel, that under the particular facts presented by this case, the insurer, although not in possession of certain medical reports, was obligated to go forth and obtain, within a reasonable time, any reports of its physicians when requested to do so in writing by the plaintiff or her attorney. We are of the opinion that, in the case at hand, the delays in obtaining and providing the necessary reports to the plaintiff were unwarranted and unjustified. Thus, we conclude that plaintiff sufficiently complied with the requirements of LSA-R.S. 23:1314 and hold that the exception of prematurity raised by the defendants should have been overruled.

We recognize that our holding herein is in conflict with the cases of Saia v. T. Smith & Sons, Inc., 100 So.2d 544 (La. App.Orl.1958); Moore v. Bridges & Bell, 115 So.2d 390 (La.App. 2nd Cir. 1959); and Glover v. Schuylkill Products Co., 138 So. 2d 15 (La.App. 1st Cir. 1962).

Simply stated, we are of the opinion that once a workmen’s compensation claimant has demonstrated the occurrence of any one of the three prerequisites enumerated in LSA-R.S. 23:1314, said claimant is then possessed with the right to have a judicial determination made concerning his claim of disability and other matters incidental thereto. For this reason we are in disagreement with the Saia case, supra, and its progeny and choose not to follow them.

For the above and foregoing reasons the judgment of the district court sustaining the exception of prematurity is reversed, and this case is remanded to the district court for further proceedings not inconsistent with this opinion.

Costs of this appeal are assessed against the defendants-appellees.

REVERSED AND REMANDED.

PAVY, J., concurs in the result.

       Pavy, J., voted to grant a rehearing.


author: HOOD, Judge.

text:
    STATE of Louisiana, Through the SABINE RIVER AUTHORITY, Plaintiff-Appellee. v. Rupert L. LUCIUS, Jr., Defendant-Appellant.
    No. 5441.
    Court of Appeal of Louisiana, Third Circuit.
    July 6, 1976.
    Rehearing Denied Aug. 4, 1976.

      Thomas A. Self, Many, for defendant-appellant.
    Alvis J. Roche, Lake Charles, for plaintiff-appellee.
    Before HOOD, MILLER and PAVY, JJ-
   HOOD, Judge.

Plaintiff, State of Louisiana, through the Sabine River Authority, seeks a judgment enjoining defendants, Rupert L. Lucius, Jr., and Willie A. Williams, from using a roadway across an arm or inlet of the Toledo Bend Reservoir in Sabine Parish, ordering them to remove that roadway, and condemning them to pay damages to plaintiff in the event the roadway is not removed within the time allowed by the court. The trial judge rendered judgment in favor of plaintiff granting it the relief sought against defendant Lucius, but dismissing plaintiff’s demands against Williams. Defendant Lucius has appealed.

Several issues are presented. The principal one is whether defendant Lucius had the right to construct a road across an arm or inlet of the Toledo Bend Reservoir, and whether he has the right to continue to maintain and use that road.

The construction of the Toledo Bend Dam on the Sabine River and the impounding of waters by that facility was a joint project of the states of Texas and Louisiana. The dam was completed and waters began being impounded in the Toledo Bend Reservoir in 1966. The normal pool stage of 172 feet above mean sea level was reached in April, 1968.

The Sabine River Authority, State of Louisiana, was created as an agency of this state by Act 261 of 1950 (LSA-R.S. 38:2321, et seq.). Pursuant to the power vested in it by that statute, Sabine acquired title to all lands in Louisiana which later were inundated by the above reservoir, and also all property lying between the contour of 172 feet above mean sea level, that being the normal pool stage, and the contour of 175 feet above mean sea level, or a distance of 50 feet running horizontally from the 172 foot contour, whichever is greater.

Although Sabine owned the above described strip of land, extending landward at least 50 feet from the 172 foot contour, its policy was to lease back to the abutting landowner that part of the strip which extended from the shore of the reservoir to the landowner’s property. That strip of land around the edge of the reservoir, 50 feet or more in width, was known as the “lease back” area. See Wright v. Sabine River Authority, 308 So.2d 402 (La.App. 3 Cir. 1975).

In 1971, and for some time prior thereto, defendant Lucius owned a tract of land comprising about 60 acres which abutted the Toledo .Bend Reservoir. A ravine, constituting an arm or inlet of the reservoir, traversed the Lucius property from south to north, with the main part of the lake being located south and west of defendant’s land. This ravine or arm of the reservoir divided or severed the Lucius property, the eastern part of that tract being on one side of the ravine and the western part of it being on the other. It thus was impossible to travel from the eastern to the western part of his land without crossing or going around the north end of that ravine or inlet. As already noted, Sabine owned all that part of the ravine which was below the 172 foot contour line, and it also owned the “lease back area,” at least 50 feet wide, around that area of the lake.

The land located north of and adjacent to the Lucius property has been subdivided into blocks and lots, and it is known as the “Pine Bluffs Subdivision.” J. L. Spiller, Jr., who testified at the trial, is a co-owner of that subdivision. The ravine or inlet which traverses and severs the Lucius property extends into the Pine Bluffs Subdivision.

During or prior to 1971 the Lucius property was subdivided into lots, some of which were located on the east side of the above ravine and the remainder were located on the west side of it. In 1971 and early in 1972, Lucius constructed a roadbed across the above ravine, obviously for the purpose of providing better access from the east to the west parts of his property. That road runs generally east and west and it is located near the north line of the Lucius property. The road is 18 or 20 feet wide, with shoulders about two feet wide on both sides. It is an oil treated sand road, compacted and built to provide an all-weather type of road surface. The inlet at the place where the road was constructed was about 100 feet wide from shore to shore. The roadway, of course, traversed not only the water-covered part of the inlet, but also the lease back areas on both sides of it. The inlet decreased in width as it extended north of the roadway, and it terminated in the Pine Bluffs Subdivision.

Prior to the construction of that road owners of property in the Pine Bluffs Subdivision had access by boat to the main part of the lake. After the road was built it was impossible for watercraft of any kind to travel north of that road, and thus the owners of property located immediately north of the Lucius tract were cut off from access by boat to the reservoir. Lucius installed a culvert under the road which permitted water to flow into and out of the north part of the inlet. Boats could not travel through that culvert, however, and the evidence indicates that debris which gets into the north part of the inlet cannot wash out into the lake, and that the north end of that inlet thus is beginning to sand in or to fill.

Shortly after the road was built Spiller made a complaint to Sabine that the owners of property in the Pine Bluffs Subdivision had been cut off from access to the lake. On April 11, 1972, R. D. Morgan, Chief Engineer for the Louisiana Department of Public Works, wrote to Lucius informing him that the road had been built without a permit, and demanding that he remove the embankment. A similar demand was made on Lucius by counsel for Sabine on January 23, 1973. The road has not been removed and this suit was instituted on April 3, 1973.

Two other defendants were named in the original petition which was filed by plaintiff, and additional defendants, including Willie A. Williams, were impleaded in supplemental and amended petitions filed by Sabine. A number of exceptions were filed and ruled on by the trial court, and eventually the case went to trial solely on the demands made by Sabine against Lucius and Williams.

After trial, the trial judge rendered judgment on April 2, 1975, in favor of plaintiff, enjoining defendant Lucius from using the above roadway, ordering him to demolish and remove the roadway by June 2, 1975, authorizing plaintiff to remove it if defendant fails to do so within the specified time, and condemning defendant to pay to Sabine the sum of $2,556.00 in the event the roadway has not been removed by the above date. The judgment dismissed the suit as to Williams.

Defendant Lucius appealed. Plaintiff has not appealed, and the judgment dismissing the suit as to Williams thus is final as to that defendant.

Defendant contends primarily that before the road was constructed he obtained a “verbal permit” to build it, that “verbal permits were the rule of the day” at that time, that the Sabine River Authority personnel were aware of and acquiesced in his plans to build the road, and that he thus was duly authorized to construct a road at that location.

The “Official Manual of Policy, Rules and Regulations” of the Toledo Bend Dam and Reservoir was adopted by the Board of Commissioners on August 24, 1967. That manual provides that “written approval by permit” must be obtained before any alteration of the water line is made, or before any digging or moving of work on the lake bed or the lease back area is conducted. Verbal permits were granted and were sanctioned by the Board of Commissioners prior to March, 1970, but since that time written permits have been required. Lucius began constructing the above road in 1971. He has never applied for or obtained a written permit to do so.

Maynard Nelson, who was employed by the Sabine River Authority of Texas for 11 years but at that time was working as Assistant Project Supervisor for Administration for the Toledo Bend Project, contacted Lucius in 1971 for the purchase of a small strip of land which had no relation to the road involved here. Lucius informed Nelson at that time that he wanted to build a road across the above inlet, and he requested that Sabine furnish him with a culvert to put under that road. Nelson arranged to obtain a culvert for him, but he informed Lucius at that time that neither he nor the agencies for which he worked had authority to grant a permit for construction of a road on the Louisiana side of the reservoir, and that he would need a permit from the Sabine River Authority if we wanted to put it there. Nelson testified “I just told him that I could not grant him permission to put it there, and that before he could put it there he would need to get permits from the Sabine River Authority, State of Louisiana.” Although Nelson later arranged to provide defendant with a culvert, Lucius obtained a culvert elsewhere and installed it before Nelson advised him of that fact.

Lucius argues that since Nelson, an official of the Toledo Bend Project, was aware of defendant’s plan to construct the roadway and did not object, Nelson must be considered as having acquiesced in the construction of the road. We do not agree. Nelson had no authority to authorize or approve the construction of such a roadway, and he explained to Lucius that it would be necessary for him to obtain a permit from the Sabine River Authority, State of Louisiana, before any such road could be constructed. Sabine made demand upon Lucius to remove the road immediately after it learned that it had been built. We find nothing in the record which indicates that Sabine acquiesced in the construction of that roadway.

Defendant contends next that Sabine now seeks to apply retroactively to him a permit procedure which it previously did not apply to an adjacent landowner, Spiller. He argues that Sabine thus is attempting to apply its rules in a discriminatory and unconstitutional manner, in violation of the equal protection of the law provision of the Fourteenth Amendment.

The evidence shows that in 1968, two years before Sabine set up a procedure for the issuance of written permits, Spiller discussed with the Chief Engineer, Morgan, the question of whether he could dredge out and deepen a part of the inlet. At Morgan’s suggestion, he wrote a letter to Sabine making formal request for a permit to conduct that dredging. Spiller also discussed his proposed project with a state senator who was a member of the Board of Commissioners of Sabine River Authority, and with a state representative from that area, both of whom explained that Sabine did not have a formal permit procedure, and both approved his request for dredging out the inlet. With that authority, Spiller proceeded to dredge out a part of the inlet in 1968. His dredging operations, however, did not change the water line or the contour of the lake in any way, and it did not cut off water frontage from any other property. Lucius contends that since Spiller was authorized to do that dredging in 1968, he was entitled to construct a road across the same inlet in 1971 and 1972, without the necessity of obtaining a written permit for that work.

We cannot agree-with plaintiff’s argument. The above dredging operations were conducted by Spiller before a written permit procedure had been established. Spiller obtained a verbal permit before the work was begun, which was the only type of permit issued at that time. Written permits were required by the time Lucius constructed the above road in 1971 and 1972. Lucius, however, did not obtain a permit of any kind, either written or oral, before he began building that road. Even if Spiller should be held to have dredged the inlet in 1968 without proper authority, that circumstance does not bar Sabine thereafter from establishing a permit procedure and from enforcing its rules. We also note, although we do not consider it to be material here, that the work done by Spiller did not change the water line of the reservior, as did the construction of the road by Lucius.

Defendant challenges the right of Sabine to institute this suit, contending that its purpose is principally to serve the private interests of the owners of Pine Bluffs Subdivision. He argues that the real party at interest is Spiller, and not Sabine River Authority. We do not agree. The Sabine River authority is charged with the duty of providing for “the preservation of the equitable rights of the people of the different sections of the watershed area, in the beneficial use of the waters of the Sabine River and its tributary streams.” LSA-R.S. 38:2325. We think this includes the right to require the removal of a road which blocks off an arm or inlet of the reservoir, thus depriving owners of property lying beyond that road of access by water to the lake.

An issue is presented as to whether the institution of this suit was authorized by the Board of Commissioners of the Sabine River Authority. Defendant contends that the suit was instituted “only on the authority of a low level ministerial employee of the Sabine River Authority,” and that the record contains no evidence to show that the Board of Commissioners- formally authorized this action.

The plaintiff is “State of Louisiana, through the Sabine River Authority.” The law provides that that authority is an agency and instrumentality of the State of Louisiana, that it is a corporation and body politic and corporate, that it is invested with all powers conferred by law upon other corporations of like character, and that it shall have and possess the authority to sue and be sued. LSA-R.S. 38:2324.

The law is settled that a corporation may sue in its own name, without the designation of any officer thereof, and in such case it appears through its attorneys whose authority is presumed. Community Chest v. Union Mission Association, 30 So.2d 131 (La.App. 2 Cir.1947). When an attorney at law appears in court to represent a litigant, there is a presumption that he is authorized to do so. Even the litigant whom the attorney claims to represent is affected by the presumption of authority, to the extent that strong proof of want of authority must be produced. Plaquemines Parish School Board v. Davis, 32 So. 2d 391 (La.App.Orl.1947).

There is a strong presumption that the attorney who represents the plaintiff in this suit was authorized to do so. Plaintiff Sabine does not question that authority. The burden rests on defendant to produce “strong proof” to show that the attorney who filed the suit for Sabine does not have authority to do so. No such proof has been presented. Two substantial employees of Sabine testified at the trial, and Sabine thus must be charged with notice of the fact that the suit has been filed. The Board of Commissioners has not taken any steps to dismiss the suit, but on the contrary, it has reaped the benefits of it. The Sabine River Authority thus has acquiesced in the suit, and by doing so it must be held to have authorized it.

Defendant contends that the evidence fails to show that the road was constructed on an arm of the lake or on property which is owned by Sabine. We disagree. Several plats were introduced in evidence and those plats, together with the testimony of witnesses, show that the road was constructed across an arm or inlet of the reservoir, on property owned by Sabine.

Defendant also argues that the trial judge erred in refusing to grant a continuance on the day this suit eventually was tried on its merits. He contends that for that reason he is entitled to have the case remanded for a new trial.

The case was tried on June 25, 1974. On the day of the trial defendants filed a motion for a continuance, alleging that defendant Williams had been subpoenaed to appear as a witness on that day in a traffic accident criminal case in the City Court in Shreveport, and that “Williams desires and is entitled to participate fully in the trial of this civil case in Sabine Parish.” Plaintiff thereupon dismissed the suit as to Williams, and the trial judge denied the motion for a continuance. Later in the trial plaintiff was permitted to withdraw that dismissal and to reinstate the case as to Williams, but no further request was made by defendants for a continuance. The judgment, of course, dismissed the suit as to Williams, and that judgment is now final, so Williams obviously was not prejudiced by the above ruling on the motion for continuance.

Lucius argues now that he is entitled to have the case remanded so that he can produce the testimony of his co-defendant, Williams. The record indicates that Lucius did not suggest at any time prior to or during the trial that he wanted to call Williams as a witness. He did not ask to hold the case open for his testimony, and he did not allege in his motion for a new trial that he wanted or needed Williams’ statements. The' first suggestion to the effect that he wanted Williams’ testimony, so far as we have been able to find, is contained in the brief filed by defendant in this court.

The minutes of the court show that this case was originally scheduled to be tried on May 21, 1973, but that that fixing was set aside on that day by agreement of counsel. Other fixings were set aside on May 23, 1973, and on March 6, 1974. On the last mentioned date it was scheduled for trial on April 5, 1974, but defendants filed a motion for continuance on April 2, which was granted by the trial court. It was refixed for trial on June 25, 1974, and as already noted defendants filed another motion for continuance on that date, which motion was denied by the trial judge.

A continuance may be granted in any case if there is good ground therefor. LSA-C.C.P. art. 1601. The granting or the refusal to grant a continuance under that article is left to the sound discretion of the trial judge, and his judgment on that issue should not be disturbed in the absence of a clear abuse of discretion. George v. George, 274 So.2d 494 (La.App. 3 Cir. 1973); Stablier v. Partin, 278 So.2d 537 (La.App. 1 Cir. 1973).

In the instant suit, we find no abuse of discretion on the part of the trial judge in refusing to grant the motion for continuance which was filed by defendants on the day the case was scheduled for trial.

Defendant contends, finally, that the amount of damages awarded by the trial court, in the event he fails to remove the road within the time specified, was speculative, and that the award violated the Louisiana Public Contracts Law (LSA-R.S. 38:2211). Barton Rumsey, a professional civil engineer, surveyed the road and took cross-sections of it to determine the amount of dirt which was contained in the fill. With that information, he estimated that the cost of clearing the fill, or of removing the roadway, would be $2,556.00, that being the amount which was awarded by the trial court. The evidence thus supports the award, and we find that it is not speculative.

No authorities have been furnished to us indicating that the award made in this case violates the Louisiana Public Contracts Law. We conclude that there is. no such violation.

Our ultimate conclusion is that defendant Lucius had no authority to construct the above road across an arm or inlet of the Toledo Bend Reservoir, and that plaintiff is entitled to the relief which it seeks and which was granted by the trial court. We have decided, however, that defendant should be allowed 60 days from the date this judgment becomes final within which to demolish and remove the roadway.

For the reasons assigned, the judgment appealed from is amended by deleting the words “by the date of June 2, 1975,” and “by the day of June 2, 1975,” where those words appear in the judgment, and by substituting in lieu of those words, in each of the places where they appear, the words “within sixty (60) days after this judgment becomes final.” In all other respects, the judgment appealed from is affirmed. The costs of this appeal are assessed to defendant, Rupert L. Lucius, Jr.

AMENDED and AFFIRMED.


author: STOULIG, Judge. MORIAL, Judge

text:
    Moran ROBERTSON v. Joseph R. GERACE, Administrator, and Godchaux’s.
    No. 7539.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 30, 1976.
    Rehearing Denied July 29, 1976.
    Writ Refused Oct. 29, 1976.

      Jack Mark Stolier, and Jane Johnson, New Orleans, for plaintiff-appellant.
    Marion Weimer, James A. Piper and James A. McGraw, Baton Rouge, for Administrator of Dept, of Employment Sec., State of La., defendant-appellee.
    Milling, Benson, Woodward, Hillyer & Pierson, Elizabeth Ridnour Haak, New Orleans, for The Leon Godchaux Clothing Co., Ltd., defendant-appellee.
    Before GULOTTA, STOULIG and MORIAL, JJ.
   STOULIG, Judge.

Appellant, Moran Robertson, has appealed a judgment of the Civil District Court for the Parish of Orleans, upholding an administrative ruling denying him unemployment compensation benefits because he was discharged for good cause.

Dorothy Boucher, vice president and store manager of The Leon Godchaux Clothing, Company, Limited, verbally instructed Robertson that the crew of store keepers under his supervision must assume a new duty, i. e., changing light bulbs throughout the store on a daily basis. She further confirmed this with a written memorandum.

When one of the men under Robertson’s supervision refused to assume this new duty, Miss Boucher contacted appellant by telephone to advise him of this event and was told by him that he (Robertson) had no intention of instructing his men to change light bulbs. Among Miss Boucher’s duties was the direct supervision of Robertson. She fired him for insubordination.

Appellant’s factual version varies in that he said he was fired after he was directed to change the bulbs himself. From the administrative ruling it is apparent the referee assigned more credibility to Miss Boucher’s statements.

L.R.S. 23:1634 limits our jurisdiction to questions of law unless the record contains insufficient evidence to support the conclusion of the administrative agency and preponderates to the effect that a fraud has been perpetrated. See Fruchtzweig v. Southern Specialty Sales Company, 161 So.2d 374 (La.App. 4th Cir. 1964) and Shelton v. Doyal, 316 So.2d 526 (La. App. 2d Cir. 1975).

In the case before us there is ample evidence to support the finding appellant was properly disqualified by L.R.S. 23:1601(2) because he was justly discharged for insubordination.

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

AFFIRMED.

MORIAL, J., dissents with written reasons.

MORIAL, Judge

(dissenting).

I respectfully dissent.

In my opinion the record does not support appellant’s disqualification for unemployment compensation benefits on the basis of misconduct.

Guidelines relative to misconduct barring a claimant’s recovery of unemployment compensation benefits were expressed in Heard v. Doyal, 259 So.2d 412 (La.App. 2 Cir. 1972) as follows:

“Misconduct under LSA-R.S. 23:1601(2) has been defined on numerous occasions by the courts to mean an act of willful or wanton disregard of the employer’s interest, a deliberate violation of the employer’s rules, a disregard of standards of behavior which the employer has the right to expect of his employee, or negligence in such degree or recurrence as to manifest culpability, wrongful interest, or evil design, or show an intentional and substantial disregard of the employer’s interest or of the employee’s duties and obligations' to the employer. Horns v. Brown, 243 La. 936, 148 So.2d 607 (1963); Payne v. Antoine’s Restaurant, 217 So.2d 514 (La.App. 4th Cir. 1969).
“The employer has the burden of proving misconduct by a preponderance of the evidence. Payne v. Antoine’s Restaurant, supra; Gardere v. Brown, 170 So.2d 758 (La.App. 1st Cir. 1964); Fruchtzweig v. Southern Specialty Sales Company, 161 So.2d 374 (La.App. 4th Cir. 1964); Lee v. Brown, 148 So.2d 321 (La.App. 3d Cir. 1962).”

The uncorroborated testimony of Dorothy Boucher when considered against the testimony of the claimant and his former subordinate does not constitute evidence sufficient to support the essential and important finding of misconduct by the Board of Review. Appellees’ construction of the evidence of claimant’s conduct, while fully justifying the termination of his employment in the eyes of his employer for insubordination, nevertheless, hardly amounts to misconduct.

In my opinion, appellant’s isolated refusal to perform a task which had not been previously assigned to him in the course of eight years satisfactory employment as a receiving clerk/storekeeper does not amount to a wilful disregard of the employer’s interest or a deliberate violation of the employer’s rules.

      . The reason for complainant’s separation from employment given by Miss Boucher to the Division of Employment Security is: “Insubordination. Refused to delegate work to be performed to his personnel. Manner most discourteous when refusing to carry out his functions as a supervisor.”

      . Robertson’s version is: “The store manager wanted me to have 2 men screw light bulbs for 3 hrs. a day, the work load we had to do was too heavy already. This came up all of a sudden. There was no rule about this. The other 2 employees involved names were Willie Small, Jerry Keys. I was not aware of this rule. I worked for this employer for 8 years as a receiving clerk. I was never asked to change light bulbs or do maintenance work before.” (Robertson admitted that he refused to change the light bulbs at Miss Boucher’s request and also advised her that he would not resign from his employment and that she would have to fire him.)


author: GULOTTA, Judge. STOULIG, Judge

text:
    Mary Lynn CARTER and Kenneth Johnston v. NEW ORLEANS PUBLIC SERVICE, INC.
    No. 7533.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 30, 1976.
    Rehearing Denied July 29, 1976.
    Writ Refused Oct. 29, 1976.
    Richard C. Buckman, New Orleans, for plaintiffs-appellants.
    A. R. Christovich, Jr., New Orleans, for defendant-appellee.
    Before GULOTTA, STOULIG and MORIAL, JJ.
   GULOTTA, Judge.

Plaintiffs, passengers on a NOPSI bus, injured as a result of an attack by a group of teenage bus passengers, appeal from the dismissal of their suit against the transit company. We affirm.

The undisputed facts are that plaintiffs boarded a bus on Franklin Avenue, at the intersection of Leon C. Simon Boulevard, and sat together on the bench seat immediately in front of the left rear exit door. Shortly thereafter, at the same bus stop, a large group of teenage youths boarded the bus.

According to plaintiffs, within two blocks after the bus started to move, Kenneth Johnston’s hair was pulled by one or more of the youths. The bus was traveling in the direction of Canal Street and the river.

Immediately after the hair-pulling incident, plaintiffs attempted to leave the bus. Mary Lynn Carter testified that she pulled the cord for the purpose of stopping the bus, but to no avail. According to plaintiffs, attempts were made by the youths to take Miss Carter’s purse, and both plaintiffs were physically attacked by the uncontrollable youths. Plaintiffs testified that during this entire occurrence, the bus continued to move on Franklin Avenue in the direction of the river. Miss Carter further testified that she again pulled the cord to signal the bus driver to stop. However, she again did not hear the buzzer. She then screamed and “within a few seconds” the bus stopped.

According to plaintiffs, the bus traveled four or five blocks between the hair-pulling incident and the intersection at which it stopped on Vienna Street and Franklin Avenue. The bus driver, unable to reach plaintiffs through the aisles of the bus because of the crowded condition, exited the bus through the front door and entered through the rear exist door. According to the driver, he instructed the youths to discontinue their attack and then called the dispatcher to ask for police assistance. In the interim, the unruly youths existed the bus and dispersed.

It is plaintiffs’ position that the bus driver violated the high standard of care owed to passengers to prevent foreseeable and preventable acts of violence and abuse from other passengers. Specifically, plaintiffs complain: 1) that the bus driver was derelict in permitting the bus to become dangerously overcrowded by unruly and rowdy juveniles; 2) that the overcrowded condition prevented visual observation of the attack on plaintiffs; 3) that the noise level prevented the bus driver from hearing the buzzer, pulled by plaintiff, or alternatively, that the buzzer was not working; 4) that the bus driver failed to discover plaintiffs’ peril for five or six blocks, when, with the exercise of reasonable care, he should have foreseen plaintiffs’ plight at an earlier point in time; 5) that the bus driver violated his duty in permitting the rear exit of the bus to be blocked by the unruly and rowdy juveniles; and, 6) that after having ascertained the threatening attitude of the youthful passengers, the driver failed to follow the transit company’s instructions in not immediately calling the dispatcher from the nearest available telephone. Plaintiffs further contend that the transit company failed to provide the driver with adequate instructions and devices which could assist him with crowd control and could prevent injury to a passenger by a fellow passenger.

In written reasons for judgment, the trial judge stated:

“The Court finds that considering all of the testimony, there is no violation on the part of the New Orleans Public Service, of the duty owed to their fare paying passengers.”

We agree.

In the event of a disturbance on the bus, the bus driver stated he had been instructed to stop the bus and call the dispatcher. The driver further indicated that he has been instructed to prevent foreseeable disorder or trouble.

It is clear that after becoming aware of the disturbance and attack on plaintiffs, the driver, as instructed, stopped the bus at the nearest intersection, tried to assist plaintiffs and called the dispatcher. Un-contradicted is the fact that as a result of the driver’s action, the youths quickly ran off the bus and dispersed. Under the circumstances, we conclude the bus driver did not violate any duty placed upon him after he became aware of the disturbance and attack on plaintiffs.

The most serious thrust of plaintiffs’ complaint is that the conduct of the crowd of youthful passengers, boarding the bus, was so unruly and ungovernable that the driver was aware or should have been aware that a disturbance would occur. In this connection, the bus driver characterized the conduct of the teenagers as “a lit-tie loud” . . . “making noise, beating on the seats, having a good time. That’s normal.” Plaintiffs, on the other hand, characterized the boarding group of youths as exhibiting “very bad behavior”. Plaintiffs stated, “They were banging on the windows, switching seats” and making “loud noises”. “The bus was rocking back and forth.” This was before the bus left the bus stop.

With the exception of whether or not the teenagers entered the bus through the rear door, which the trial judge deemed to be irrelevant, the judge found plaintiffs to be credible witnesses and found no conflict between the testimony of plaintiffs and the bus driver. However, inherent in the dismissal of plaintiffs’ suit was a factual determination that the large group of youths boarding the bus exhibited a playful and jovial attitude, rather than a threatening, abusive or rowdy attitude. If the conduct of the young persons entering the bus was threatening, abusive or rowdy, resulting in the creation of a disturbance, the bus driver breached his duty in failing to seek help immediately from a dispatcher, in violation of the transit company’s instructions, and in commencing to drive the bus along the bus route. If, on the other hand, the attitude of the boarding youths was playful and not threatening, abusive or dangerous, the bus driver did not violate any duty when he commenced driving the bus.

The trial judge chose to accept the bus driver’s depiction of the boarding youths’ attitude. We find no error.

The fact that the trial judge, in written reasons, also found plaintiffs to be credible witnesses does not conflict with his conclusion that the bus driver more accurately depicted the attitude of the boarding youths and, consequently, did not violate any duty owed by the driver to his passengers. Although the trial judge found plaintiffs’ testimony credible, he was not obliged to accept their characterization of the youths’ conduct. Under the circumstances, we conclude the driver was not placed on notice that injury might foresee-ably result to the passengers.

Further, we find no merit to plaintiffs’ contentions that the driver permitted the rear exit of the bus to be blocked by the youths or that the overcrowded condition of the bus prevented visual observation of plaintiffs’ plight. Neither the driver nor plaintiffs testified that the rear exit door was blocked. In connection with overcrowding, the driver stated that because people were standing in the center aisle, he could not see “right” in front of the back door. However, he also testified that he could see over the heads of the people standing in the aisles. Under the circumstances, we cannot say that the bus was any more crowded than other buses which must operate with persons standing in the aisle.

We find no merit, further, in plaintiffs’ contention that the driver and NOP-SI were derelict when the driver failed to stop the bus in response to the buzzer (either because the noise level prevented the bus driver from hearing the buzzer or because the buzzer was not working). Plaintiffs offered no testimony to show that the buzzer malfunctioned. Furthermore, the driver stated that the noise level was “reasonable”. He testified also that he did not hear the buzzer, but immediately upon hearing the scream, he stopped the bus.

No clear and convincing evidence was offered by plaintiffs that training of bus drivers by NOPSL with respect to handling emergency situations, was or is inadequate, or that any devices for handling emergency situations would have prevented the occurrence.

It is well settled that although a public carrier is not the insurer of its passengers’ safety, it must exercise a high degree of care in transporting passengers to their destinations. Jones v. New Orleans Public Service, Inc., 254 So.2d 652 (La. App. 4th Cir. 1971), writ refused, 260 La. 402, 256 So.2d 289 (1972). However, it is equally well settled that it is the carrier’s duty to prevent a passenger from injuring another passenger only if the danger is apparent and could be prevented by the exercise of proper care. Brown v. Dunbar, 29 So.2d 357 (La.App. 1st Cir. 1947); Aime v. Hebert, 282 So.2d 566 (La.App. 4th Cir. 1973).

Having concluded that there existed no danger apparent to the bus driver, we also conclude that the driver did not fail to exercise the high degree of care placed upon him. The judgment is affirmed.

AFFIRMED.

STOULIG, J., dissents with written reasons.

STOULIG, Judge

(dissenting).

I respectfully dissent.

In his written reasons for judgment the court stated: “The court finds both of the plaintiffs to be credible witnesses.”

The significance of the trial court’s finding of plaintiffs’ credibility is that their testimony is worthy of belief. Stated in another manner, their account or narrative of the circumstances and actions leading to the assault upon them must be accepted as reliable because of the trial court’s impression of their veracity. It therefore follows, under the credibility call of the trial judge, the testimony of plaintiff Mary Lynn Carter that the teen-agers were acting in a rowdy and boisterous manner; that she made two futile attempts by pulling the emergency cord to attract the attention of the bus driver to the fact that she and her escort, the other plaintiff, were being molested and physically abused by the teen-aged passengers; and only by her screams was she able to obtain the bus driver’s attention and his assistance must be accepted as true. The remaining plaintiff Kenneth Johnson corroborated Carter’s testimony and further stated that his body had been punctured with the sharp end of an Afro hair comb.

While the testimony of the plaintiffs may be insufficient to establish negligence on the part of the bus driver, it clearly confirms a breach of the duty of care that the defendant owed to its bus passengers as a public carrier.

For these reasons I am of the opinion that the plaintiffs are entitled to recover.


text:
    Mrs. Maude H. McKENZIE v. ESTATE of Yancy Mack WESTERFIELD, Deceased, Deposit Guaranty National Bank, Executor.
    No. 48729.
    Supreme Court of Mississippi.
    July 20, 1976.
    Danks, Craig & Moss, Jackson, Joe G. Moss, Raymond, for appellant.
    Earl R. Cruthirds, Jackson, for appellee.
    Before PATTERSON, P. J., and ROBERTSON and BROOM, JJ.
   Appeal from Chancery Court, Hind's County; James Arden Barnett, Chancellor.

Affirmed.


text:
    Annie Mae YOUNG v. J. J. ROGERS AND SON and Hartford Accident and Indemnity Company.
    No. 48624.
    Supreme Court of Mississippi.
    July 13, 1976.
    John L. Long, Tupelo, for appellant.
    Mitchell, Rogers & Eskridge, Claude F. Clayton, Jr., Tupelo, for appellees.
    Before PATTERSON, P. J., and ROBERTSON and BROOM, JJ.
   Appeal from Circuit Court, Lee County; L. T. Senter, Jr., Judge.

AFFIRMED.


text:
    Timothy STRANGE v. STATE of Mississippi.
    No. 49116.
    Supreme Court of Mississippi.
    July 20, 1976.
    Houghton F. Elias, Jr., John Kirkham Povall, Cleveland, for appellant.
    A. F. Summer, Atty. Gen. by John C. Ellis, Special Asst. Atty. Gen., Jackson, for appellee.
    Before INZER, P. J., GILLESPIE, C. J., and SUGG, J.
   Appeal from Circuit Court, Bolivar County; J. C. Feduccia, Judge.

AFFIRMED.

PATTERSON, P. J., and SMITH, ROBERTSON, WALKER, BROOM and LEE, JJ., concurring.


text:
    Jerry P. SPIERS v. REICHHOLD CHEMICAL CORPORATION and Hartford Insurance Company.
    No. 48727.
    Supreme Court of Mississippi.
    July 13, 1976.
    Ladner & Emil, Gulfport, for appellant.
    White & Morse, Paul M. Franke, Jr., Gulfport, for appellee.
    Before PATTERSON, P. J., and ROBERTSON and BROOM, JJ.
   Appeal from Circuit Court, Harrison County; Leslie B. Grant, Judge.

AFFIRMED.


text:
    Betty Bon CUEVAS v. Marvin D. CUEVAS.
    No. 48723.
    Supreme Court of Mississippi.
    July 13, 1976.
    C. R. McRae, Pascagoula, for appellant.
    Boyce Holleman, Philip S. Weinberg, Gulfport, for appellee.
    Before INZER and PATTERSON, P. JJ-, and SUGG, J.
   Appeal from Chancery Court, Harrison County; Frank W. Alexander, Chancellor.

AFFIRMED.


author: WALKER, Justice,

text:
    Willie Ester WILLIAMS, NCM by Ted Williams, next friend v. Woodson WILSON.
    No. 48713.
    Supreme Court of Mississippi.
    July 20, 1976.

      Sam H. Long, James O. Ford, Tupelo, for appellant.
    Euple Dozier, Nell C. May, Fulton, for appellee.
    Before GILLESPIE, C. J., and PATTERSON and WALKER, JJ.
   WALKER, Justice,

for the Court:

This is an appeal from a decree of the Chancery Court of Itawamba County, Mississippi, finding that Willie Ester Williams was competent on February 10, 1970, to execute a deed to appellee, Woodson Wilson, to sixty acres of land m Itawamba County for $3,000.

The evidence discloses that on July 11, 1968, pursuant to a lunacy affidavit, Doctors H. J. Blakeney, M.D., and Robert J. Cole, M.D., being licensed, practicing physicians and residents of Monroe County, Mississippi, certified that they had conducted an inquiry on July 11, 1968, and made a thorough mental and physical examination of Willie Ester Williams of Fulton, Mississippi. It was their opinion that she was suffering from a mental or nervous disorder, condition or affliction, more particularly described as schizophrenic and was in need of treatment, supervision and control at a mental institution of the State of Mississippi, and that she was mentally incapable of taking care of her person and estate. Thereafter, on July 25, 1968, Dr. W. Jaquith, M.D., Director of Mississippi State Hospital, Whitfield, Mississippi, reported to the Chancery Court of Itawamba County that it was the judgment of the psychiatric staff of that hospital that Willie Ester Williams was suffering from a mental or nervous condition or disorder diagnosed as schizophrenic, schizo-affective type, depressed, and that she was in need of treatment and supervision. The record is not clear as to just how long Willie Ester stayed at Whitfield, although we may safely assume that her confinement covered a period of several months. The record does not reveal that she the was ever discharged from the hospital, but she did return home where, according to the uncontroverted testimony of several witnesses, she was not in her right mind.

On February 10, 1970, Willie Ester Williams executed a deed to the sixty acres of land in question to Woodson Wilson for the sum of $3,000. (An experienced appraiser who testified for appellant fixed the fair market value of the sixty acres as of February 10, 1970, at $6,500). She then went to live with her son in Detroit, Michigan, where, according to Dr. William J. Arnold, a physician in Detroit, her mental disorder continued. Dr. Arnold testified that he treated Willie Ester from March 5, 1970, 27 days after the deed was executed, until November 29, 1971, at regular intervals. He diagnosed her condition at that time as one of psychotic depression, and he was of the opinion that her condition was of long standing. He further testified, “I would say categorically that in my opinion the patient was not of sufficient mental capacity on February 10th, 1970 to have understood the purport of a deed and the consideration therefor for sixty acres of land and to have looked after her interest at that time.”

We are of the opinion that the testimony in this case established beyond question that Willie Ester Williams was generally and habitually insane and incapable of looking after her affairs from the time of her commitment to Whitfield on July 12, 1968, through her examination and treatment by Dr. Arnold in Detroit. Moreover, the purchaser of the property, Woodson Wilson, was put on notice that she was probably suffering from a mental disorder. The attorney who examined the title to the property for Wilson testified that he found Willie Ester Williams had been committed some few years prior to that time to Whitfield; and, that he brought this to Mr. Wilson’s attention and asked him about her competency. He said that he realized that something like this could come up in the future. Under the circumstances, it was the duty of the purchaser to make an investigation into the competency of Willie Ester Williams, and, failing to do so, he bought the property at his peril.

This case fits squarely within the holding of Ricketts v. Jolliff, 62 Miss. 440 (1884) where it was said:

Sanity is presumed until the contrary appears, and the burden of proof is on the party alleging insanity to prove it; but when a person is shown to have been generally or habitually insane at any particular period, that condition is presumed to continue, and whoever relies on a lucid interval to support a contract subsequently made with such a lunatic must prove it and show sanity and competence at the time the contract was made. 1 Greenl.Ev., §§ 42, 81; Attorney-General v. Parnther, 3 Bro.Chan. 368.
And a lucid interval is not merely a cessation of the violent symptoms of the disorder, but a restoration of the faculties of the mind sufficiently to enable the party soundly to judge of the act. The evidence in support of a lucid interval, after derangement has been established, should be as strong and demonstrative of such fact as when the object of the proof is to show insanity, and it ought to go to the state and habit of the person, and not to the accidental interview of any individual or to the degree of self-possession in any particular act. Attorney-General v. Parnther, 3 Bro.Chan. 368; Hall v. Warner, 9 Ves. 605.
Except for necessaries suited to his condition in life, a lunatic cannot make a contract. Courts of law, as well as equity, protect persons of unsound mind from the consequences of contracts attempted to be made by them. Against the consequences of mere imprudence, folly, or that deficiency of intellect which makes mistake easy but does not amount to unsound or disordered intellect, even equity affords no relief, unless the other party has made use of this want of intelligence to do a wrongful act. 1 Parsons on Con. 387. Weakness of understanding is not of itself any objection to the validity of a contract if the capacity remains to see things in their true relations and to form correct conclusions. The doubtful and uncertain point at which the disposing mind disappears and where incapacity begins can be ascertained only by an examination of all the circumstances of each particular case, to be duly weighed and considered by the court or jury, and in determining the question the common sense and good judgment of the tribunal must be mainly relied on. Young v. Stevens, 48 N.H. 133. Generally, when it appears that a person had not strength of mind and reason sufficient to understand the nature and consequences of his act in making a deed or other contract, it may be avoided on the ground of insanity. Dennett v. Dennett, 44 N.H. 531; Young v. Stevens, 48 N.H. 133; Baldwin v. Dunton, 40 Ill. 188; Hill v. McLaurin, 28 Miss. 288; Jackson v. King, 15 Am.Dec. 354.
When a person contracting with one who is insane has knowledge of the insanity, or information that would lead a prudent man to such knowledge, or where there has been unfairness or fraud in the transaction, the contract will be rescind- edj and restitution of the consideration received by the insane person is not a condition precedent to the rescission when it has been wasted or has passed beyond his control. Simonton v. Bacon, 49 Miss. 582; Brantley v. Wolf, 60 Miss. 420; Gibson v. Soper, 6 Gray 279; Henry v. Fine, 23 Ark. 417; Jackson v. King, 15 Am.Dec. 354. (62 Miss, at 448-449). (Emphasis added).

The burden in this case was upon the purchaser of the land, Woodson Wilson, to prove that Willie Ester Williams executed the deed during a lucid interval and to show that she was sane and competent at the time to make the contract. The evidence in support of a lucid interval, after derangement has been established as in this case, should be as strong and demonstrative of such fact as when the object of the proof is to show insanity, and it ought to go to the state and habit of the person and not to a single interview of any individual or to the degree of self-possession in any particular act or behavior on a particular occasion. See Polk v. Martin, 116 So. 107 (1928).

The only evidence tending to show that Willie Ester Williams was in a “lucid interval” at the time she executed the deed to the sixty acres of land to Mr. Wilson came from three witnesses who observed her briefly:

Mr. Dave W. Reeder, the manager of the Bank of Mississippi in Fulton, testified that he remembered Willie Ester Williams coming to the bank in 1970 and saying she was interested in selling some land. He referred her to Mr. Homer Wilson but did not remember any other conversation that he might have had with her.

Appellee’s attorney testified that he found Willie Ester had been committed to Whitfield and that he brought this to Mr. Wilson’s attention. The attorney stated that he questioned her with that in mind and also talked to her son, who assured him that she was all right and that there would be no question about the deed; that he realized something like this could come up in the future and saw nothing indicating that she was not competent; and that in his opinion she was competent to make the deed and realized the consequences of her act. However, his observation only covered a period of about fifteen minutes when the deed was signed and acknowledged.

Mr. Homer Wilson, who was an employee of the bank at the time of the execution of the deed and who handled the transaction for his cousin, Woodson Wilson, testified that Willie Ester Williams was referred to him by Mr. Reeder in February of 1970. She was accompanied by her son and wanted to sell some land. He told them that he knew some people that were interested in buying land and that he could possibly help them. He could not leave the bank when they first came to him, about nine o’clock a. m., but he went to their house around four-thirty or five o’clock or just before dark, and they drove together in his pickup truck to the land where “they” showed him the lines. Willie Ester told him that they had sold the timber as it had just been cut. They then went back to Willie Ester’s house and he told them that “we could buy it for a fixed price.” The next morning Willie Ester and her son were waiting at the bank and wanted to have the deed prepared. Because of some technical difficulties that had to be cleared up, he put them off, and they came back that afternoon when the deed was completed, and the transaction was made at that time. He said that Willie Ester told him that she wanted to sell the land as soon as she could so that she could go to Detroit to her other son’s. He testified that she appeared to be normal and that her son told him that his mother was all right. When asked on cross-examination whether he bought the land even though he knew that she had been adjudicated a lunatic, he replied: “Yes, sir, I was of the impression that one is not always incompetent necessarily and that sanity could be restored to an individual and I felt that this lady was very sane and knew exactly what she was doing at the time.”

The testimony of the three witnesses falls far short of the rule announced in Ricketts v. Jolliff, supra, and restated in Polk v. Martin, supra, that “proof of a lucid interval after derangement of the mind, adduced in support of a contract made in such interval, must be as strong and demonstrative as would be required to show insanity, and must go to the state and habit of the mind, and not merely to an accidental conversation, or behavior on a particular occasion.” The testimony of Mr. Reeder covered a momentary period, the testimony of the attorney who handled the transaction covered a period of only fifteen minutes, and the testimony of Mr. Homer Wilson, the agent and cousin of Woodson Wilson, covered a brief period on Monday, February 9, 1970, another short period late that evening just before dark, and then a short period covering fifteen minutes on the morning of February 10, 1970, when the deed was executed. It could hardly be argued that such testimony based on the observations of lay witnesses over such a short period of time would be sufficient evidence upon which a person could be found to be insane. Conversely, under the rule of Ricketts and Polk, supra, it is not sufficient to show that Willie Ester Williams, who was habitually insane, had a lucid interval on February 10, 1970, and was competent to execute a deed to her property.

We are of the opinion that the purchaser of the land, Woodson Wilson, wholly failed to meet his burden of proving that Willie Ester Williams was in a “lucid interval” and was competent at the time she executed the deed, and that the chancellor was manifestly wrong in his finding.

This cause is therefore reversed and remanded for further proceedings not inconsistent with this opinion.

REVERSED AND REMANDED.

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

      . Dr. Arnold’s testimony, was taken by means of written interrogatories and cross-interrogatories propounded to him.


author: LESLIE B. GRANT,

text:
    Mrs. Luna K. McLEMORE v. James D. BIVIN.
    No. 48845.
    Supreme Court of Mississippi.
    Sept. 28, 1976.

      Laurel G. Weir, Philadelphia, for appellant.
    Daniel, Coker, Horton, Bell & Dukes, Donald V. Burch, Jackson, for appellee.
    Before PATTERSON, P. J., SUGG and WALKER, JJ., and LESLIE B. GRANT, Commissioner.
   LESLIE B. GRANT,

Commissioner, for the Court:

The declaration, filed in the Circuit Court of Neshoba County, State of Mississippi, on July, 18, 1973, alleges that on or about August 30, 1970, the plaintiff was riding as a guest passenger in an automobile being driven by the defendant in a westerly direction on Highway No. 82 in Carroll County, Mississippi, at or near the intersection of said highway with Highway No. 17, where a collision with another car, which was also traveling on Highway 82, but going in an easterly direction, occurred. The declaration alleges that the accident was the result of the negligence of the defendant including the allegation that the defendant was driving at an excessive rate of speed; that the plaintiff was injured; and she sues the defendant for damages.

The answer of the defendant, filed September 17, 1973, denies negligence and alleges affirmatively that an oncoming pickup truck being driven in an easterly direction on Highway 82 by Travis Mitchell crossed over into the defendant’s lane causing the head-on collision. The defendant further alleged that the plaintiff had settled her claim against Mitchell.

The plaintiff’s answer to the affirmative defense, filed October 23, 1973, denies that the negligence, if any, of Mitchell was the sole proximate cause of the accident and denies that any payments made by Mitchell satisfied her claim against Bivin.

At the trial, the testimony of the plaintiff, Mrs. McLemore, was sufficient-, at least as to speed, to make out a case for the consideration of the jury. The plaintiff admitted having received five thousand dollars ($5,000.00) from Mitchell. It was not shown that this settlement was to be a full satisfaction of her claims for injuries against all parties. The plaintiff also testified that the defendant is her son-in-law.

The defendant testified that the accident happened on August 29, 1970 while he was driving the plaintiff from Edinburg to Greenwood. He was knocked unconscious in the wreck and could not remember much of the details surrounding the accident.

Mr. Travis Mitchell, the driver of the eastbound truck, in his testimony, took the entire blame for the accident. He testified that he had driven through a lot of water, that his brakes would not hold, that he lost control of his truck, hit the curb on the south side, and then crossed over into Bivin’s lane where the impact occurred.

The case was submitted to the jury resulting in a verdict and judgment for the defendant. As set out by the appellant in her first assignment, it was error to permit Bivin to testify as to the speedometer reading noticed by him a week after the accident. 32 C.J.S. Evidence § 570, at page 660.

As set out in appellant’s second assignment, it was error to allow the Highway Patrolman, Wayne Miller, to testify, when he did not see the accident, that as the Mitchell truck “struck the curb, it veered back into the west bound lane and hit the Bevin car”. Lynch v. Suthoff, 220 So.2d 593 (Miss.1969).

There is no merit in appellant’s third assignment contending that appellant was entitled to a directed verdict. Instruction No. 9, which the appellant contends in the fourth assignment of error should have been given, was properly refused as being argumentative. This is the “guest not at fault” instruction. See, Walker v. Ferris, 241 Miss. 63, 128 So.2d 865 (1961).

There is no merit in the appellant’s remaining assignments of error.

We do not consider the two errors listed above sufficient to reverse this case as it appears to us from the whole record that justice was done. The case was fairly and impartially tried. The errors are so slight that it can safely be said that the errors could not have misled the jury or prejudiced the appellant, and, even if the errors are considered substantial, the evidence as a whole is such that no impartial jury could reach a different result. See, Sowell v. Meridian Mattress Factory, Inc., 263 So.2d 190 (Miss.1972); Rule Eleven of Supreme Court; and Brown v. Addington, 233 Miss. 435, 102 So.2d 365 (1958).

We therefore affirm the judgment appealed from in this case.

AFFIRMED.

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

LEE, J., took no part.

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


author: LEE, Justice:

text:
    James JACKSON v. STATE of Mississippi.
    No. 49022.
    Supreme Court of Mississippi.
    April 27, 1976.
    Rehearing Denied May 18, 1976.

      Cleve McDowell, Clarksdale, for appellant.
    A. F. Summer, Atty. Gen. by Ben H. Walley, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before GILLESPIE, ROBERTSON and LEE, JJ.
   LEE, Justice:

Appellant, James Denton Jackson, was convicted in the Circuit Court of Sunflower County, Mississippi, for the possession of lysergic acid diethylamide (LSD), and was sentenced to serve a term of seven (7) years in the Mississippi State Penitentiary. From that conviction and judgment he appeals here.

It is first contended that the trial court erred in overruling appellant’s objection to introduction of the evidence (LSD) and in denying the motion to suppress same on the ground that it was obtained as a result of an illegal arrest and an illegal search of the appellant’s person.

This assignment presents the question of whether or not the arresting officers had probable cause to arrest the appellant and to search him incidental thereto.

About 10:00 P.M. on April 2, 1975, police officer Ted Mabry was on patrol duty in the City of Indianola when he saw two white men and two black men standing on the sidewalk of Church Street. He knew one of the black men to be James Jackson, and Officer Mabry saw him pass a small brown package to one of the white men, who made a hasty departure.

Mabry radioed Officers Card and Cobb, who were in separate cars, that the two white men were going down Second Street and that he suspected them of being involved with marijuana. Officer Card contacted the subjects and asked them for identification. One of them dropped a small brown envelope which contained a green leafy substance. Officers Cobb and Mabry arrived in a short while. Approximately ten minutes had elapsed since Ma-bry saw appellant pass the brown package to the men.

The subjects were arrested for the possession of a controlled substance and were taken to the police station where they made written statements. After obtaining the statements, Officers Mabry, Cobb and Card went to Eddie’s Pool Hall for the purpose of arresting appellant on the charge of sale and distribution of a controlled substance.

Mabry pointed out appellant to the other officers, and Cobb asked appellant to step outside for questioning. Appellant complied with the request, but as soon as he got outside, he fled. The officers chased and overtook him, handcuffed and searched him. They found thirteen (13) small brown packages in his coat pocket similar to that retrieved from the white men, together with a small bottle with two green tablets in it. They field tested the material and placed the appellant under arrest for possession of marijuana and possession of LSD.

Approximately forty-five minutes elapsed from the time mabry saw appellant pass the brown package until his arrest. Mabry participated in the investigation which involved an unbroken chain from the time he first saw appellant until appellant’s arrest. We are of the opinion that under these facts and circumstances, the officers had reasonable grounds to believe appellant had sold a controlled substance and that probable cause existed for the arrest of appellant without a warrant.

Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959), involved the conviction of Draper on charges of knowingly concealing and transporting narcotic drugs. Draper moved to suppress the evidence. In affirming the conviction of Draper, the Court said:

“ ‘In dealing with probable cause, . . . as the very name implies, we deal with probabilities. These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.’ Brinegar v. United States, supra, 338 U.S. at page 175, 69 S.Ct. at page [1302] 1310. Probable cause exists where ‘the facts and circumstances within their [the arresting officers’] knowledge and of which they had reasonably trustworthy information [are] sufficient in themselves to warrant a man of reasonable caution in the belief that’ an offense has been or is being committed. Carroll v. United States, 267 U.S. 132, 162, 45 S.Ct. 280, 288 [69 L.Ed. 543, 555, 39 ALR 790].” 358 U.S. at 313, 79 S.Ct. at 333, 3 L.Ed.2d at 332.

In Canning v. State, 226 So.2d 747 (Miss. 1969), this Court said:

“It has been said that: ‘Where an officer, in good faith, believes that a person is guilty of a felony, and his belief rests on such grounds as would induce an ordinarily prudent and cautious man, under the circumstances, to believe likewise, he has such probable cause for his belief as will justify him in arresting without a warrant.’ 6 C.J.S. Arrest § 6, p. 596 (1937).” 226 So.2d at 753.

We held in Joyce v. State, 227 So.2d 255 (Miss.1976) that where police officers received a tip from a reliable informant that the suspect would arrive at the airport with sixty pounds of marijuana in his luggage, and the police officers observed the suspect’s arrival, transfer of luggage to his automobile, and nervous manner, all this constituted probable cause to stop and search the vehicle trunk and luggage for contraband.

The officers here went to Eddie’s Pool Hall for the purpose of arresting appellant, reasonably believing that he had sold and dispensed a controlled substance to the white men. When appellant accompanied them outside the pool hall, he fled. Officer Card testified they did not have time to advise him that he was under arrest. When the officers chased, caught and handcuffed appellant, they were placing him under arrest, even though they had not told him so at that time.

“An arrest is not consummated until there has been a taking of possession of a person by manual caption, or submission on demand; and although a manual touching is unnecessary unless there is resistance to an arrest, there must be restraint of a person to establish an arrest.” Fondren, Alias Tommy Taylor v. State, 253 Miss. 241, 259, 175 So.2d 628, 636 (1965).

Therefore, we are of the opinion that this assignment is not well taken.

The appellant urges (2) that the court erred in overruling defendant’s objection to testimony of the state chemist that the pill produced at the trial was LSD, and (3) that the verdict is contrary to the weight of the evidence.

The 'State’s toxicologist testified that she examined the two green tablets taken from appellant, that one of them was consumed in the examination, and that it contained lysergic acid diethylamide. The second tablet was similar to the first and was not tested in order that it might be available to appellant. The proof is undisputed that both tablets were from the same bottle, and they were similar in physical appearance. Also, it is undisputed that the tablet tested contained LSD. There was no error in permitting the tablet to be introduced in evidence.

Appellant testified that the coat containing the thirteen (13) brown packages and the two (2) green tablets (LSD) was not his coat, that he borrowed it from some “dude” in the pool hall, whom he did not know. However, after objecting to the introduction of the evidence and moving to suppress same, he further testified on the merits of the case that the bottle and the two green tablets were his, that he had taken them out of his pants pocket and placed them in the coat. He and two members of his family also testified that they used these green tablets for their sinus ailments.

The verdict of the jury and judgment entered by the court are supported by the evidence, and there is no merit in assigned Errors 2 and 3. We are of the opinion that the case should be, and the same is affirmed.

AFFIRMED.

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


author: GILLESPIE, Chief Justice,

text:
    The FRANKLIN LIFE INSURANCE COMPANY v. Betty Sue HAMILTON.
    No. 48711.
    Supreme Court of Mississippi.
    July 20, 1976.

      Heidelberg, Sutherland & McKenzie, Hattiesburg, for appellant.
    Eugene C. Tullos, Raleigh, for appellee.
    Before GILLESPIE, C. J., and WALKER and BROOM, JJ.
   GILLESPIE, Chief Justice,

for the Court.

Mrs. Betty Sue Hamilton, the beneficiary named in an application for life insurance submitted by her deceased husband, Charles H. Hamilton, sued Franklin Life Insurance Company. At the conclusion of the plaintiff’s case, the defendant insurance company moved for a directed verdict which the court denied, and upon failure of the insurance company to offer any proof, entered judgment for the plaintiff in the amount of $25,000. Franklin Life appealed.

On July 25, 1973, Charles Holbert Hamilton applied to Franklin Life for a $25,000 life insurance policy (naming his wife, Betty Sue Hamilton, as the primary beneficiary). Hamilton paid the agent $29.50 for the first month’s premium and received a conditional receipt which contained the following:

This receipt shall operate as a Conditional Premium Receipt only upon fulfillment of the conditions stated in paragraph “FIRST” on the reverse side hereof, which conditions are conditions precedent to the effectiveness of this receipt.

Conditions “FIRST” and “SECOND” in the receipt are as follows:

FIRST. That (1) if the amount tendered equals or exceeds the monthly premium for the policy applied for and (2) if the Company at its Home Office shall be satisfied after investigation and medical examination (if required) that on the date hereof or on the date of such medical examination, whichever is later, the Proposed Insured was insurable and entitled under the Company’s rules and standards to insurance on the plan and for the amount (but not in excess of the amount the Company would retain at its own risk) and at the rate of premium applied for, then the insurance protection applied for shall take effect from said date (except as otherwise provided in Item 14 of the application). Such insurance protection shall expire at the end of the period for which the amount tendered hereunder would provide such insurance on a pro rata basis unless continued by payment of premiums when due.
SECOND. That if the Company be not so satisfied or if the amount so tendered is less than the monthly premium for the policy applied for, no insurance shall be considered in effect under this application unless and until the application is approved and accepted by the Company at its Home Office and the policy manually delivered to and accepted by the Proposed Insured or by the Owner if other than the Proposed Insured, during the lifetime and continued insurability of the Proposed Insured and the first premium thereon has been paid in full. If the insurance protection referred to in the above paragraph entitled FIRST shall not take effect, or if the application is declined, or if a policy is issued other than as applied for and not accepted, the Company will make refund of the amount received.

Hamilton was required by the agent to take a physical examination which was performed by a Dr. Wade on July 28, 1973. Dr. Wade’s report showed that Hamilton was six feet three inches in height, weighed 260 pounds, and had an at-rest pulse rate of 102. The local agent for Franklin Life mailed the application, along with the first month’s premium, to the home office on July 25, 1973. The medical examiner’s report was mailed on the date of the examination and was received by Franklin Life on July 31, 1973. Sometime thereafter, Franklin Life’s medical examiner determined that Hamilton was not insurable at the rate of premium applied for. The application was not rejected, but, through the local agent, information was requested of Dr. Folse, Hamilton’s personal physician. The date of this request is not in the record, but Franklin Life’s medical examiner testified that the report from Dr. Folse was not received until September 20, 1973, which was three weeks after Hamilton’s death. Hamilton died on September 7, 1973, as a result of a myocardial infarction.

The beneficiary testified that she and her husband married in 1970, that after their marriage, Mr. Hamilton had been hospitalized about a dozen times for stomach problems, colitis, and other similar problems and that he had been treated for the aforementioned problems by Dr. W. E. Folse. She also testified that her husband had been x-rayed during the time of their marriage.

Dr. Wm A. Henry was called as an adverse witness. He is Franklin Life’s medical examiner with the primary duty to evaluate the medical history and medical findings contained in applications and to set the policies of the company in regard to standards by which the company will accept people for insurance. Dr. Henry testified that the company was in the process of “trying to get the information — to get a report from [Hamilton’s] personal physician,” and that the company never did get the information before it was notified that Hamilton had died. The company wrote Mrs. Hamilton on September 27, 1973, and stated: (1) That it had received the report of Dr. W. E. Folse on September 20, 1973; (2) that “Dr. Folse’s report states that he had treated your husband for frequent bouts of colitis and interitis for which he was frequently hospitalized”; (3) that these conditions made Mr. Hamilton unin-surable under the company’s rules and standards for issuance of insurance at the rate of premium applied for, and (4) that the company had never approved and accepted the application.

Franklin Life raises the question whether a primary beneficiary under a mortgage life insurance policy has the right to sue, upon the death of the insured, for the proceeds of the policy, or whether the action should be brought by the personal representative. Whatever right of action existed, the named beneficiary in the application would be the proper person in her individual capacity to bring the action. 44 Am.Jur.2d Insurance § 1923 (1969).

The main question for our decision is whether a policy of insurance became effective under the circumstances stated. It if Franklin Life’s contention that the conditions precedent to the effectiveness of the policy were never met under the terms of the application or conditional premium receipt and that the conditions of paragraph “FIRST” of the conditional receipt are plain and unambiguous, as are the conditions in the “SECOND” paragraph of the conditional receipt. On the other hand, Mrs. Hamilton contends that Franklin Life waited an unreasonable length of time after the medical examiner determined that Mr. Hamilton was uninsurable and that Franklin Life should have promptly notified Mr. Hamilton that he was uninsurable so that he could have sought insurance elsewhere.

The provisions of the conditional receipt are clear and unambiguous. Paragraph “FIRST” states that if the Home Office of Franklin Life is satisfied after investigation and medical examination that Hamilton was insurable (on the date of the application or on the date of the medical examination), then the insurance would take effect on the date of the application or on the date of the medical examination, whichever is later. Paragraph “SECOND” amplifies this understanding by clearly stating that if the company is not so satisfied (that the applicant was insurable), “no insurance shall be considered in effect under this application unless and until the application is approved and accepted by the company at its Home Office and the policy manually delivered to and accepted by the Proposed Insured, during the lifetime and continued insurability of the Proposed Insured. . . .”

The record reveals that the conditions of the conditional receipt were not fulfilled, the policy was never issued, and Franklin Life tendered the first monthly premium to Mrs. Hamilton on September 27, 1973. Moreover, the record shows that Franklin Life was amply justified in finding that Hamilton was not insurable. Under these facts the insurance never became effective. Life & Casualty Insurance Co. v. Harvison, 187 So.2d 847 (Miss.1966).

Nor does the record show such a delay on the part of Franklin Life in notifying Hamilton of his uninsurability that it is estopped to deny that the insurance became effective. It is not shown that Franklin Life unreasonably delayed requesting the medical report from Dr. Folse. The information necessary to determine whether the policy should issue was never received by Franklin Life until after Hamilton’s death.

It is unnecessary to discuss the question whether Franklin Life could have avoided liability if the policy had been issued because of the false answers to vital questions in the application. It is significant that the falsity of the answers is shown without dispute.

For the reasons stated, the trial judge should have granted the directed verdict. The judgment is reversed and judgment entered here for the defendant.

REVERSED AND RENDERED.

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