text:
    STATE of Louisiana v. Charles Joseph WILLIAMS.
    No. 59226.
    Supreme Court of Louisiana.
    March 9, 1977.
   In re: State of Louisiana through the District Attorney, Ossie Brown applying for supervisory writs.

Granted.

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

It is ordered that a writ of certiorari issue herein, directing the Honorable Donovan Parker, Judge of the 19th Judicial District, Court for the Parish of East Baton Rouge, to transmit to the Supreme Court of Louisiana, on or before the 28rd day of March, 1977, the record in duplicate, or a certified copy of the record in duplicate, of the proceedings complained of by the relator herein, to the end that the validity of said proceedings may be ascertained.

■ It is further ordered that the aforesaid Judge of said Court and the respondent through counsel shall show cause, in this court on the 20th day of May, 1977, at 10 o’clock A.M., why the relief prayed for in the petition of the relator should not be granted.


source: Caselaw Access Project

license: Public Domain

text:
    Hayes WILLIAMS et al. v. STATE of Louisiana et al.
    No. 59254.
    Supreme Court of Louisiana.
    March 9, 1977.
   In re: Hayes Williams, et al., applying for writ of certiorari.

Granted.

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

It is ordered that a writ of certiorari issue herein, directing the Honorable Eugene W. McGhee Judge of the 19th Judicial District, Court for the Parish of East Baton Rouge, to transmit to the Supreme Court of Louisiana, on or before the 23rd day of March, 1977, the record in duplicate, or a certified copy of the record in duplicate, of the proceedings complained of by the relator herein, to the end that the validity of said proceedings may be ascertained.

It is further ordered that the aforesaid Judge of said Court and the respondent through counsel shall show cause, in this court, on the 16th day of May, 1977, at 10 o’clock A.M., why the relief prayed for in the petition of the relator should not be granted.


text:
    PARISH OF JEFFERSON v. BAYOU LANDING LIMITED, INC., d/b/a Airline Highway Adult Books and Movies, et al.
    No. 59337.
    Supreme Court of Louisiana.
    March 9, 1977.
   In re: Bayou Landing Limited, Inc. d/b/a Airline Highway Adult Books and Movies, et al., applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Jefferson. 341 So.2d 23.

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


text:
    Alfred ALEXANDER v. QWIK CHANGE CAR CENTER, INC.
    No. 59298.
    Supreme Court of Louisiana.
    March 11, 1977.
   In re: Alfred Alexander applying for cer-tiorari, or writ of review to the Court of Appeal, Fourth Circuit, Parish of Jefferson. 340 So.2d 685.

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


text:
    STATE of Louisiana v. Nathan BALLANSAW
    No. 59282.
    Supreme Court of Louisiana.
    March 11, 1977.
   In re: State of Louisiana applying for writ of certiorari, mandamus and prohibition.

Granted.

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

It is ordered that a writ of certiorari issue herein, directing the Honorable Israel M. Augustine, Jr. Judge of the Criminal District, Court for the Parish of Orleans, to transmit to the Supreme Court of Louisiana, on or before the 25th day of March, 1977, the record in duplicate, or a certified copy of the record in duplicate, of the proceedings complained of by the relator herein, to the end that the validity of said proceedings may be ascertained.

It is further ordered that the aforesaid Judge of said Court and the respondent through counsel shall show cause, in this court, on the 24th day of June, 1977, at 10 o’clock A.M., why the relief prayed for in the petition of the relator should not be granted.


text:
    STATE of Louisiana ex rel. Carlo MAENZA v. C. Paul PHELPS, Director, Department of Corrections.
    No. 59342.
    Supreme Court of Louisiana.
    March 11, 1977.
   In re: Carlo Maenza, applying for writ of habeas corpus.

Writ granted. Because the conviction is not yet final and the parole revocation was based entirely on the conviction, the revocation is vacated and set aside, without prejudice to further parole action in accordance with law. See State ex rel Clark v. Hunt, 337 So.2d 438 (La.1976).


text:
    STATE of Louisiana v. Lonnie G. RAYBON.
    No. 59299.
    Supreme Court of Louisiana.
    March 11, 1977.
   In re: Lonnie G. Raybon applying for writs of certiorari, mandamus, prohibition and review.

Granted. Evidentiary hearing ordered on voluntary nature of plea of guilty.


text:
    STATE of Louisiana v. Earl SLOAN.
    No. 59414.
    Supreme Court of Louisiana.
    March 11, 1977.
   In re: Earl Sloan applying for writs of certiorari, prohibition, mandamus and review.

Motion to dismiss granted.


text:
    STATE of Louisiana v. Ellis SHEPHERD.
    No. 59413.
    Supreme Court of Louisiana.
    March 11, 1977.
   In re: Ellis Shepherd applying for writs of certiorari, mandamus, prohibition and review.

Motion to dismiss granted.


text:
    STATE of Louisiana v. Billy Ray BROWN.
    No. 59258.
    Supreme Court of Louisiana.
    March 11, 1977.
   In re: Billy Ray Brown applying for supervisory writs.

Writ denied. On the basis of the transcript of colloquy in the trial court on August 13, 1976, we find no merit to relator’s contention.


text:
    STATE of Louisiana v. Roger (Jiggs) HICKS.
    No. 59260.
    Supreme Court of Louisiana.
    March 11, 1977.
   In re: Roger (Jiggs) Hicks, applying for writs of certiorari, prohibition, mandamus and for stay order.

Writ denied. The showing made does not warrant the exercise of this Court’s supervisory jurisdiction.


text:
    Jack M. KENNEDY v. BRYANT & SONS, INC.
    No. 59269.
    Supreme Court of Louisiana.
    March 11, 1977.
   In re: Bryant & Sons, Inc. applying for certiorari, or writ of review, to the Court of Appeal, Second Circuit, Parish of Caddo. 340 So.2d 658.

Writ refused. On the facts found by the court of appeal, there is no error of law in its judgment.


text:
    STATE of Louisiana ex rel. Haze TRIPLETTE v. 14TH JUDICIAL DISTRICT COURT, PARISH OF CALCASIEU, State of Louisiana, et al.
    No. 59270.
    Supreme Court of Louisiana.
    March 11, 1977.
   In re: Haze Triplette, applying for writ of mandamus.

Writ denied. The showing made does not warrant the exercise of this Court’s supervisory jurisdiction.


text:
    Beulah UPCHURCH v. BITUMINOUS INSURANCE COMPANY.
    No. 59276.
    Supreme Court of Louisiana.
    March 11, 1977.
   In re: Bituminous Insurance Company, applying for certiorari, or writ of review, to the Court of Appeal, Second Circuit, Parish of Caddo. 340 So.2d 627.

Application denied; no error in the court of appeal judgment.


text:
    The TOWN OF RICHWOOD v. John GOSTON and Verdiacee W. Hampton Goston.
    No. 59277.
    Supreme Court of Louisiana.
    March 11, 1977.
   In re: John Goston and Verdiacee W. Hampton Goston applying for certiorari, or writ of review, to the Court of Appeal, Second Circuit, Parish of Ouachita. 340 So.2d 632.

Writ denied. The judgment of the court of appeal is correct.


text:
    PRESCOTT MURPHY REALTY, INC. v. WARD PETERS INVESTMENT COMPANY, INC.
    No. 59285.
    Supreme Court of Louisiana.
    March 11, 1977.
   In re: Prescott Murphy Realty, Inc. applying for certiorari, or writ of review, to the Court of Appeal, Second Circuit, Parish of Caddo.

Writ denied. We find no error of law in the court of appeal’s appreciation of the facts and in its consequent judgment.


text:
    Brison WILLIAMS v. INTERNATIONAL LUBRICANT CORPORATION.
    No. 59295.
    Supreme Court of Louisiana.
    March 11, 1977.
   In re: International Lubricant Corporation applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Jefferson. 341 So.2d 17.

Writ refused. Since the case has been remanded, the judgment is not final.


text:
    Benny MAY v. The SOUTHLAND CORP. et al.
    No. 59296.
    Supreme Court of Louisiana.
    March 11, 1977.
   In re: The Southland Corp., Midwest Farms, Inc., Midwest Dairy Products, Inc. and James E. Martin applying for certiora-ri, or writ of review, to the Court of Appeal, Third Circuit, Parish of Sabine. 341 So.2d 421.

Writ refused. On the facts found, the result reached by the court of appeal is correct.


text:
    Verlina WELTON v. Dennis J. FALCON et al.
    No. 59280.
    Supreme Court of Louisiana.
    March 11, 1977.
   In re: Dennis J. Falcon and Jefferson Truck Line applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of St. John the Baptist. 341 So.2d 564.

Writ denied. On the facts found by the court of appeal, the result is correct.


text:
    STATE of Louisiana ex rel. Dwight HUNTER v. Honorable Bernard J. BAGERT, Sr., Judge, Criminal District Court, Parish of Orleans.
    No. 59381.
    Supreme Court of Louisiana.
    March 11, 1977.
   In re: Dwight Hunter, applying for writ of mandamus.

Writ refused. Since relator’s conviction has been affirmed on appeal, the motion to be remanded to the Parish Prison is now moot.


text:
    STATE of Louisiana ex rel. Michael Odell DAVIS v. Ross MAGGIO, Jr., Warden, Louisiana State Penitentiary.
    No. 59271.
    Supreme Court of Louisiana.
    March 11, 1977.
   In re: Michael Odell Davis, applying for writ of habeas corpus and remedial writs of certiorari.

Writ denied. Claims 1, 2, 3 do not present a basis for post-conviction relief under the circumstances of this prosecution. Claim 4, concerning a belated claim of an alleged failure to afford the defendant assistance of counsel during his interrogation, is inconsistent with his testimony at the trial on the motion to suppress in the prosecution leading to his conviction. See tr. 181 ff. Docket No. 55,823, decision on appeal reported in State v. Davis, 311 So.2d 860 (La.1975). We find no merit to the petitioner’s application.


text:
    LOUIS DREYFUS CORPORATION v. CONTINENTAL GRAIN COMPANY.
    No. 59420.
    Supreme Court of Louisiana.
    March 11, 1977.
   In re: Louis Dreyfus Corporation, applying for supervisory writs.

Writ refused. No abuse of discretion.


author: DOMENGEAUX, Judge. HOOD, Judge

text:
    Evans NORRIS, Plaintiff and Appellee, v. SOUTHERN CASUALTY INSURANCE COMPANY, Defendant and Appellant.
    No. 5755.
    Court of Appeal of Louisiana, Third Circuit.
    Jan. 31, 1977.
    Rehearing Denied March 2, 1977.
    Writ Refused April 22, 1977.
    Baker, Culpepper & Brunson by Bobby L. Culpepper, Jonesboro, for defendant and appellant.
    Whitehead & McCoy by Charles R. Whitehead, Jr., Natchitoches, for plaintiff and appellee.

      Before HOOD, DOMENGEAUX and WATSON, JJ.
   DOMENGEAUX, Judge.

Plaintiff, a 58 year old pulpwood worker, filed this workmen’s compensation claim for an on the job injury. Made defendant was his employer, Albert Clifton, a pulpwood contractor, and the latter’s compensation insurer, Southern Casualty Insurance Company. The district judge awarded Norris a judgment for total and permanent disability benefits, medical expenses, travel expenses for securing medical services, incidental expert witness fees and statutory penalties and attorney’s fees of $2,500.00. Defendants have appealed suspensively to this court.

Two issues only are presented:
(1) Is plaintiff totally and permanently disabled within the intendment of the workmen’s compensation law?
(2) Were the actions of defendant insurer such as to cause the assessment of penalties and attorney’s fees?

Plaintiff was injured on April 24, 1975. He was hired as a woodcutter, and his employment required that he cut pulpwood trees with a gas-powered saw into lengths of approximately 5 feet, weighing up to 50 pounds each. The trees vary in size of from 5 to 10 inches in diameter. Plaintiff was required to stack the pieces of wood into piles. His duties necessitated stooping, squatting and bending with the resulting physical stress and strain. He was paid according to the number of cords of wood he sawed and stacked.

The accident occurred when plaintiff was cutting a tree upon which another partially severed but not fallen tree was resting. When the tree he was cutting fell, it dislodged the second tree which fell on plaintiff, knocking him down. He received a contusion of his head with laceration, a probable concussion, injury to his right thigh and knee, and bruises to the left arm and chest. All injuries healed in time, except those in the area of the right knee and thigh, and it is these which gave rise to this litigation. Accordingly, our discussions concerning plaintiff’s condition will be limited to those last referred to injuries.

Plaintiff was hospitalized for two days and treated then and subsequently by Dr. Robert R. Sills, a general practitioner. He was also examined and treated by Dr. Ray J. Beurlot, an orthopedic surgeon and was also examined by Dr. Joseph A. Thomas, a general practitioner, the latter being the last physician to examine plaintiff prior to the trial of this case.

While he was still- under the care of Doctor Sills, plaintiff voluntarily returned to his employment with Alfred Clifton approximately a month after his accident. Plaintiff’s basic complaint, is that because of weakness, instability, swelling and pain in the area of his right knee, he cannot perform a full day’s work. His knee “gives out” frequently, causing him to lose his balance and fall. Some days he cannot work at all, and when he does work he is limited to from four to six hours per day, whereby prior to his accident of April 24, 1975, his work day was never less than eight hours per day. As a consequence of his reduced working capacity his earnings are proportionately diminished.

Around the first of September, 1975, finding that the area of hills and hollows in which he was working made his job more difficult, plaintiff went to work for another pulpwood contractor, Morgan Shackleford as a woodcutter but under the same work limitations. The area in which the latter’s operations were being performed was less hilly.

In addition to plaintiff’s testimony concerning his knee condition and the resulting effect which it has on his work ability, there is lay testimony which, in its totality, substantiates plaintiff’s claims to an appreciable degree. The lay testimony referred to was elicited from plaintiff’s wife, Morgan Shackleford, and one Trent Shackle-ford. Plaintiff’s employer, Albert Clifton, admitted that the former had complained to him about his knee trouble since the accident.

Doctor Sills saw and treated plaintiff on April 24, April 26, April 30, May 7, May 19, and finally June 2, 1975. He found that plaintiff’s right leg and thigh was contused and swollen. There was pain from the knee to the thigh. The right thigh had some enlargement, particularly on the medial side above the knee. At the last visit of June 2nd, the doctor thought plaintiff was progressing satisfactorily, and advised that plaintiff exercise his right leg and to apply hot packs. The doctor had previously sent a report to the adjuster of the defendant insurer in which he stated “He [plaintiff] might be able to resume regular work on May 30” [1975]. In his deposition the doctor remembered that the referred to report was just about the time that he had last seen plaintiff (June 2, 1975), and he further cautioned “and you notice I said light work as a trial”. He said that May 30th would be a projected time when he thought plaintiff might go back to work. On cross-examination Doctor Sills stated that as of June 2, 1975, he would not have passed plaintiff for a full time manual labor job on a 40-hour week. The doctor finally testified that inasmuch as he had not seen plaintiff since June 2, 1975, he could not say whether Norris has or has not sustained any permanent residual disability as a result of the April, 1975, accident.

On June 27, 1975, the adjuster for the defendant insurer received a letter from plaintiff which in pertinent part reads as follows:

“. . . . This is to advise you that I got hurt on the job working for Albert Clifton over two months ago at Moro, La. and left me injured in my right leg & left arm and I can’t work but 4 or 5 hours a day because my leg gives out on me. but I received about $600.00 compson [sic] and I haven’t heard any more from you. I am wondering if you planning on making a settlement with me .”

In response to the letter the adjuster assigned an assistant to contact plaintiff. A nuisance offer of settlement was made and refused, resulting in arrangements being made by the insurance company representative for plaintiff to be examined by Doctor Beurlot in Alexandria, Louisiana.

Plaintiff was seen by Doctor Buerlot on July 21, July 30, August 1, August 14, September 8, September 22, and October 6, 1975. X-rays were taken of the right knee, as was an arthrogram, the latter being a more sophisticated type x-ray of the joint.

Doctor Beurlot found a moderate amount of swelling or effusion of the right knee and a slight laxity in the collateral ligament. X-ray revealed mild degenerative changes in the knee. On August 1st there was still some swelling and a knee support was prescribed, with an exercise regimen. On August 14th there was still effusion present, as well as on September 8th. Plaintiff was told to continue his regular occupation and to return in two weeks. On September 22nd there was no swelling but still some laxity of the collateral ligament. On October 6th swelling was present and the doctor felt that plaintiff’s symptoms now were probably due to degenerative arthritic changes which were noted in the original x-rays. He felt that the arthritic changes were not caused by the accident. The doctor testified that effusion means fluid in the knee of either blood, serum or an increased amount of normal synovial fluid. Plaintiff had a restriction of approximately 15 degrees when the foot was brought backwards to the buttocks. He testified that usually when the fluid is due to an injury it dissolves, but not always. In some cases it will not dissolve. It can subside then reappear. He opined that plaintiff could continue his regular occupation without substantial pain, although he admitted that the trauma which plaintiff sustained in this accident could be the cause of the knee instability which plaintiff relates. In that connection, the doctor in response to questions stated:

“Q. Now, he indicated to Dr. Perdue I believe that, when Dr. Perdue took his history on September 22nd, that he had to quit working or had to stop after four to six hours, and he has indicated to me that his knee ‘gives out’ on him, and he has never had anything like this before prior to this traumatic episode of April— in April of '75. Could this trauma that he sustained in this accident cause this instability or this giving out as he relates?
A. It could, yes.
Q. In fact, it’s a medical probability, is it not, or possibility, Dr. Beurlot?
A. Yes.
Q. Particularly in a man of his age?
A. Yes.
Q. And particularly where if the history revealed that he had never had any problems with his knee, that it had been stable and he’s been able to work in the woods eight hours a day? And then he sustains trauma and then he has this condition. You would have to relate it to the trauma, would you not?
A. Yes.
Q. You would not find it strange or unusual if the man would relate that he was having problems with his knee? That he had some attendant swelling, that after four to six hours of working in the woods that it gives out on him and he has to quit, you would not find that unusual based upon your treatment of him and what you saw and his age and facts that he related to you, would you Dr. Beurlot?
A. No.”

Plaintiff was finally examined by Doctor Thomas on December 29, 1975. X-rays were taken of the right knee. The doctor found that plaintiff was unable to completely flex his knee. He found evidence of intra-articular fluid in the knee joint. He concluded that this fluid could subside, but on the other hand could become worse. There was evidence of degenerative arthritis which probably pre-dated the injury, but in view of the fact that plaintiff had no knee trouble prior to the accident of April, 1975, that the condition is related to the accident. He felt that plaintiff was suffering a 30% disability of the right leg and 15% disability of the body as a whole, and he related that to the knee injury. Doctor Thomas was very definite in stating that as of December 29, 1975, he would not certify plaintiff as capable of competing in the labor market on a 40-hour work week.

The totality of the medical and lay testimony satisfies us that plaintiff received a disabling injury to his right knee from the accident of April 24, 1975. His knee is unstable and does not permit him to carry on his normal duties as a woodcutter past a few hours a day. We find no error in the trial judge’s conclusion that plaintiff cannot work an 8-hour day or a 40-hour week without disabling pain. His knee instability causes him to lose balance and sometimes fall after a few hours work, and this of course materially increases the hazard to his health and safety.

Although it is uncertain when and if plaintiff will recover, compensation should be awarded for the maximum number of weeks prescribed for permanent disability, since the defendant is protected by the provision of LSA-R.S. 23:1331, permitting revision of the judgment after six months, should the disability terminate.

We therefore affirm the district court judgment granting plaintiff total and permanent benefits. See Tantillo v. Liberty Mutual Insurance Company, 315 So.2d 743 (La.1975) on the significance of lay testimony. See also Carroll v. Southern Casualty Insurance Company, 285 So.2d 370 (La.App. 3rd Cir. 1973); Sanders v. Boh Bros. Construction Company, Inc., 304 So.2d 812 (La.App. 3rd Cir. 1974); Futrell v. Hartford Accident & Indemnity Company, 276 So.2d 271 (La.1973).

PENALTY AND ATTORNEY FEES

While plaintiff was still under the care of Doctor Sills he voluntarily returned to his former employment with defendant Albert Clifton. Defendant insurer’s claim manager, Mr. Hendrick, who had the responsibility of handling plaintiff’s claim discontinued plaintiff’s compensation on June 9, 1975. He said that on June 4th he received a report from Doctor Sills which stated that plaintiff might be able to return to his regular job on May 30, 1975. He then talked to Albert Clifton on June 9, 1975, who told him that plaintiff had returned to work. He didn’t see any reason to have an activity check because Clifton told him plaintiff was back at work.

Mr. Hendrick admitted receiving plaintiff’s aforementioned letter on June 27, 1975, and also as aforementioned plaintiff was sent to be examined by Doctor Beurlot. Mr. Hendrick admitted receiving reports from Doctor Beurlot but took the position that plaintiff was not disabled even though one report indicated that plaintiff had some traumatic soreness in his right knee.

Finally, even though plaintiff lived in Lena, Louisiana, a distance of about 25 miles from Alexandria, where Doctor Beur-lot practiced his profession, the plaintiff was not furnished travel expenses for the several trips he made to Doctor Beurlot’s office for examinations. In that connection Mr. Hendrick testified:

“Q. Your file does not reveal that you paid this man any expenses for traveling from his home down to see Dr. Beurlot?
A. . None was ever requested. If the man asks us to help him with his travel expense, we will pay him a mileage rate. If he doesn’t ask, we don’t.”

We feel, as did the district judge, that penalties and attorney fees are due plaintiff. Merely because plaintiff went back to work originally was not in itself sufficient grounds to discontinue his compensation. The medical report in the adjuster’s possession did not specifically state that plaintiff could return to his former duties on May 30, 1975. In view of this, it was incumbent upon the insurer to determine if plaintiff was in fact performing all of his prior duties.

We also feel that after being placed on notice by plaintiff that he was unable to work more than a few hours a day and with the subsequent reports from Doctor Beur-lot, that the insurer should have at least made an effort to determine whether compensation should have been reinstated. This it did not do. Williams v. Liberty Mutual Insurance Company, 327 So.2d 462 (La.App. 3rd Cir. 1976); Carroll v. Southern Casualty Insurance Company, 285 So.2d 370 (La.App. 3rd Cir. 1973); Horn v. Vancouver Plywood Company, 322 So.2d 816 (La.App. 3rd Cir. 1975); DeJean v. B. F. Trappey’s Sons, Inc., 285 So.2d 297 (La.App. 3rd Cir. 1973); Chavis v. Maryland Casualty Company, 307 So.2d 663 (La.App. 3rd Cir. 1975), writ refused 310 So.2d 854 (La.).

Defendant’s insurer is also vulnerable for penalties and attorney’s fees for the reason that it failed to furnish plaintiff with travel expenses for the several trips to and from Alexandria to be seen by Doctor Beurlot. When defendant sent plaintiff to Alexandria for examination by a doctor of its choice, travel expenses should have been furnished. A claimant’s travel expenses in seeking medical attention form part of his medical expense claim and same is subject to the statutory penalty provisions. Jack v. Fidelity & Casualty Company of New York, 326 So.2d 584 (La.App. 3rd Cir. 1976), writ refused April 23, 1976.

For the above and foregoing reasons the judgment of the district court is affirmed. Costs on appeal are assessed against appellants.

AFFIRMED.

HOOD, J., dissents and assigns written reasons.

HOOD, Judge

(dissenting).

In my opinion the evidence does not establish that plaintiff has been disabled at any time after the payment of compensation benefits was discontinued. Assuming that he was disabled after that time, I think my colleagues erred in finding that defendant was arbitrary or capricious in discontinuing compensation payments under the circumstances existing here.

Plaintiff Norris sustained relatively minor injuries on April 24, 1975, when the top of a tree struck him as it fell. He recovered from all of those injuries quickly and without any residuals, except that he claims that his right knee still bothers him. The injury to his knee consisted of a strain or sprain, there being no fractures and no injury to the bones or cartilages in the knee. Plaintiff had degenerative arthritis of the knee, which had existed long before this accident occurred, but he was never disabled by that arthritis either before or after the accident.

The evidence shows that plaintiff was off work from the date of the accident, April 24, until May 5, 1975, a period of about 11 days. On the last mentioned date he returned to work for the same employer, Albert Clifton, performing the same kind of work, and he has been performing that same kind of work continuously since that date. He was still working at the same kind of employment on the day of the trial. He voluntarily left his employment by Clifton on September 1, 1975, and since that date he has been working for Marvin Shac-kleford, performing the same type of work.

Clifton testified that for a period of four or five weeks after plaintiff returned to work following the accident he did not cut as much wood as he usually cut prior to the accident, but that after that four or five week period Norris then worked full time, cutting as much wood as he had ever cut before, and that he made no complaints at all about his knee or about any other part of his body.

Plaintiff contends that prior to the accident he worked up to ten hours per day, but that after the accident he has been able to work only four or five hours a day, although he concedes that on some days he worked as much as seven hours. He testified that his earnings before the accident amounted to about $250.00 to $300.00 per week, but that after the accident they have amounted to only $150.00 per week, or less. He attributes his alleged decrease in earnings to his knee injury.

Mr. Clifton’s testimony conflicts with that of plaintiff. Clifton stated that plaintiff worked six or seven hours a day before the accident, that for the first few weeks after plaintiff returned to work for him he “didn’t cut as much wood as he did before that,” but that after four or five weeks following the accident plaintiff did the same amount of work he had ever done, and that he did not complain of any injuries to his knee or to any other part of his body. Clifton referred to his records and testified that for the week ending June 13, 1975, plaintiff earned $170.94. For the week ending June 20, he received $392.31, and for the week ending June 27, he was paid $481.87. These payments, all made for work done after the accident, average considerably more than plaintiff said he earned before he was injured. Plaintiff does not contest Clifton’s statements as to the former’s earnings.

Shackleford, who has been plaintiff’s employer since September 1, 1975, testified that Norris is a “good pulpwood worker,” that he normally works six to seven hours per day, as do his other employees, and that he sometimes works as much as eight hours a day. He stated that during one period of time while plaintiff was working for him, his cutters were allowed quotas of wood to be cut, and that Norris always kept up with his quotas of wood and was never behind. He stated that he has gone out to the woods on some occasions and told Norris not to cut any more wood because the employer was unable to haul any more at that time.

Immediately after the accident occurred, plaintiff was treated by a general practitioner of his own choosing, Dr. Sills. Dr. Sills treated him for a period of five or six weeks, until June 2, 1975, and he stated that on or about the last mentioned date he submitted a physician’s report stating that Norris “might be able to resume regular work on May 30.” An officer of the defendant insurer, while being cross-examined by plaintiff’s counsel at the trial, read from a report submitted by Dr. Sills to the insurer, dated May 28, and received by defendant on June 4, 1975. He quoted that report as indicating that plaintiff could “resume light work on a trial of 5/20/75,” and that Norris “will be able to resume regular work on 5/30/75.” The testimony of the officer of the insurer clearly is correct as to the contents of the doctor’s report, since the witness read from the report while being questioned by plaintiff’s own counsel and plaintiff does not contradict that testimony. There is no question but that Dr. Sills, plaintiff's treating physician, reported that Norris “will be able” to resume his regular work on May 30, 1975. In any event, the insurer contacted plaintiff’s employer on June 9, and it discovered at that time that plaintiff had returned to work for the same employer, performing the same work, several weeks prior to the time it received Dr. Sills’ report, and that he was still working when the above report was received. The insurer thereupon discontinued the payment of compensation benefits.

I can find no fault on the part of the insurer in discontinuing the payment of compensation benefits after receiving the above report of Dr. Sills, and after determining that plaintiff had been working at his regular employment for several weeks before the doctor’s report was received.

On June 27, 1975, plaintiff wrote to the adjuster stating that he cannot work more than four or five hours per day, and inquiring as to whether defendant was “planning on making a settlement with me.” Upon receipt of that letter, the adjuster arranged for plaintiff to be examined by Dr. Beurlot, an orthopedic surgeon in Alexandria, who examined and treated plaintiff from July 21 until October 6, 1975. Dr. Beurlot found that plaintiff had degenerative arthritis of his knee, which had existed long before this accident occurred, but he felt that that condition was not caused or aggravated by the accident. Dr. Beurlot was firm in his opinion that plaintiff was not disabled, and that he was able to perform his regular duties as a pulpwood cutter. My colleagues have quoted a part of the testimony of Dr. Beur-lot, which gives his responses to some hypothetical questions. I find the following portions of his testimony to be far more direct and significant:

“Q. Did you feel that these arthritic changes had anything to do with the accident that he described to you?
A. No, They were noted on the initial X-rays at the time of his first examination.” (Tr. 26)
* * * * * *
“Q. Did you feel that he could continue his regular occupation without working in substantial pain?
A. Yes.” (Tr. 27)
* * * * * *
“Q. You felt that he could continue in his occupation and did you feel that he could do the same type of work that he was doing at the time he was injured?
A. Yes.
Q. Without substantial pain or discomfort?
A. Yes.” (Tr. 27)
******
“Q. As of that date (October 6, 1975), you had no question in your own mind that he was able to do the same type work without pain?
A. Yes.” (Tr. 39)

The record shows, therefore, that Dr. Beurlot, the only orthopedic surgeon who examined and treated plaintiff, felt that plaintiff was able to return to his regular employment, performing the same type of work he had always performed, without any residual disability.

Plaintiff was examined by Dr. Thomas, a general practitioner, on December 29, 1975, about eight months after the accident occurred. Dr. Thomas examined him on only one occasion, and then solely for the purpose of trial and not for treatment. He found that plaintiff had degenerative arthritis of the knee, as did the other doctors, but he felt that the accident had aggravated the arthritis and that plaintiff was disabled.

According to the record, therefore, both of the treating physicians, a general practitioner and an orthopedic surgeon, felt that plaintiff was not disabled, and that he was able to return to his regular duties. One general practitioner, who examined plaintiff on only one occasion eight months after the accident occurred and then solely for the purpose of trial, felt that plaintiff is disabled and that his disability was connected with the accident. In addition thereto, the evidence shows that plaintiff has been working regularly, without interruption, since May 5, 1975, or eleven days after the injury was sustained. I do not believe that the evidence satisfies the burden of proof which rests on plaintiff to show that he is disabled, or that there is a causal connection between the accident and any abnormal physical condition he may have at this time.

Assuming that plaintiff was disabled as a result of the accident, as found by my colleagues, I cannot agree that the defendant was arbitrary or capricious in discontinuing the payment of compensation benefits under the facts which it had at the time those payments were stopped.

The trial judge indicated in his reasons for judgment that he was assessing penalties primarily because the defendant had not offered to pay plaintiff reasonable travel expenses for the visits he made to the orthopedic surgeon in Alexandria. An officer of the defendant insurer explained, however, that no request was ever made for travel expenses, and that it would have paid him a “mileage rate” if such a request had been made. In my opinion defendant cannot be said to have been arbitrary or capricious in failing to pay travel expenses under those circumstances.

Considering all of the evidence I do not believe that there is sufficient justification for assessing penalties and attorney’s fees against defendant, even if plaintiff has been disabled.

For these reasons, I respectfully dissent.

      . This cause of action arose prior to the effective date of the numerous amendments to the Louisiana Workmen’s Compensation Act in 1975.

      . On this date plaintiff was seen by Dr. Perdue, an associate of Dr. Beurlot. But Dr. Perdue’s notes were testified to by Dr. Beurlot without objection.


author: GUIDRY, Judge.

text:
    Arthur H. FLEMING, Plaintiff-Appellee, v. John J. ROMERO, Defendant-Appellant.
    No. 5795.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 14, 1977.
    Rehearing Denied March 2, 1977.
    Writ Refused May 6, 1977.

      Provost, Ernest & Schwing by James W. Schwing, New Iberia, for defendant-appellant.
    Mestayer & Simon by S. Gerald Simon, New Iberia, for plaintiff-appellee.
    Before HOOD, GUIDRY and FORET, JJ.
   GUIDRY, Judge.

Plaintiff brings this action for specific performance and damages as a result of defendant’s alleged breach of a contract to sell. The trial court found that there was a contract to sell existing between plaintiff and defendant and that defendant breached that contract. The trial court awarded plaintiff damages in the amount of $1,315.00. Defendant appeals from that judgment. Plaintiff answered the appeal asking for an increase in the amount of damages awarded.

The facts show that sometime prior to September 18, 1972, F. M. “Pete” Olivier, a real estate broker, was informed that defendant, John Romero, was interested in selling a house and lot located at 331 Country Club Drive in New Iberia, Louisiana. In an attempt to secure a listing of the defendant’s property Mr. Olivier sent his grandson Jeff Patout, a part time real estate salesman, to defendant’s place of business with an agreement to be signed by defendant. Jeff Patout was a licensed real estate salesman. An instrument of some kind was executed by Mrs. John Romero in her husband’s absence. This agreement or instrument was not introduced in evidence and is not part of the record. Subsequent to the signing of the aforesaid agreement by Mrs. Romero, Olivier returned to defendant’s place of business to secure execution of another agreement. This time the instrument was signed by defendant. This second instrument, which was signed by Mr. Romero and dated September 18, 1972 appears in the record as Plaintiff’s Exhibit 2 and is as follows:

Examination of the instrument reveals that it is a printed form titled “Agreement to Purchase or Sell”. The word “Purchase” has been lined out. F. M. “Pete” Olivier, Realtor is printed on the top of the form. Jeff Patout is written in as the agent, although the parol evidence indicates that Mr. Olivier, whose handwriting appears on the face of the instrument, is the person who had the agreement executed. The agreement provides that defendant offers and agrees to sell his property located at 331 Country Club Drive, said property measuring 96 feet by 125 feet. The sale price of the property is $23,000.00. The agent’s commission on the sale is fixed at $1,000.00. The offer was to remain open and irrevocable until November 18, 1972. Other provisions in the instrument remain blank. No other names, except those hereinabove mentioned, appear on this instrument.

In addition to this agreement plaintiff introduced into the record as Plaintiff’s Exhibit 3, a handwritten receipt dated September 18, 1972. The receipt stated: “Received from Pete Olivier $1,000.00 on property 331 Country Club Drive” Signed /s/ John J. Romero.

Plaintiff is a real estate broker who shared an office with Mr. F. M. “Pete” Olivier.

Plaintiff contends that once the defendant signed the “Agreement to Sell”, P-2, and received the deposit, P-3, it was then not necessary for plaintiff to accept the contract in writing. Plaintiff testified that he gave Mr. Olivier the $1,000.00 cash which represented the deposit and therefore Mr. Olivier, as defendant’s agent to sell bound the defendant when he accepted plaintiff’s deposit.

After reviewing the evidence we find that the trial court correctly concluded that P-2 is a listing agreement. However, we are of the opinion, for reasons hereinafter set out, that the trial court fell into error when it concluded that the listing agent, as a consequence of this agreement, had authority to sell defendant’s property and that plaintiff became a party to a valid buy/sell agreement when defendant’s offer to sell through his alleged agent was accepted by plaintiff.

A real estate agent without any express or special grant of power, does not have the authority to bind his principal to a contract to sell. LSA-R.C.C. 2997. Customarily the real estate agent renders the service of promoting the sale of real estate by procuring prospective purchasers for his clients. ■ Accordingly, the relationship created when one agrees to list his property for sale with a real estate broker does not usually bring the relationship within the purview of the mandate articles of the Civil Code, i.e., power to buy or to sell. Rather the real estate broker’s duties are limited to those which can be analogically drawn from LSA-R.S. 37:1454 and from the customs and practices of real estate brokers in general. Leggio v. Realty Mart, Inc., 303 So.2d 920 (La.App. 1st Cir. 1974) writs refused February 7, 1975.

The law governing such matters was set forth in the early case of Tomlinson v. Allen, 152 La. 41, 92 So. 727, 729 (La.1922), wherein the court stated:

“ ‘Except where the power to complete a sale, or to enter into a contract of sale, binding on the principal, is clearly given to the broker by the terms of his contract of employment, the ordinary authority of a real estate broker employed to sell real estate is merely to find a purchaser who is ready, able, and willing to enter into a contract on the terms specified by, or acceptable to, the principal; and, in the absence of such special authorization, he has no authority to enter into a contract to sell, or to sell and convey, binding on the owner; and this rule is especially applicable where the broker is employed merely to find a purchaser.’ (Corpus Jur-is, Vol. 9, p. 528) .
“Under our Code, the power to sell must be express and special. C.C. art. 2997. From this it follows that the power relied on must show a clear intention to authorize the agent to conclude the sale and convey the property. In this case letters are relied on to show the power to bind defendant. We see nothing in them, however, which authorized the agent to go further than to procure purchasers who were ready, willing, and able to buy, and nothing in them that authorized the agent to bind the principal to sell. The listing of the property with the broker for sale and the fixing of the price on each lot at which it was to be offered conferred no such power. . . . The fixing of the price and terms on each tract was evidently done, which is usually the case, for the purpose of better enabling the agent to procure some one willing to buy, but it is expected that, when such a one is found, the matter will be referred to the principal. If the principal should refuse to conclude the sale and convey the property, the prospective purchaser cannot complain, though it well may be that the agent, as a result, may be entitled to his commission.”

Inspection of the instrument in question reveals that no where in said instrument is F. M. “Pete” Olivier or Jeff Patout, expressly or specially given the power to sell and convey defendant’s property.

The obvious confusion giving rise to this litigation occurs as a result of the real estate agent’s employing the use of a standard form “Buy/Sell Agreement” in securing this listing agreement. The fact that the agreement executed by defendant was not a valid and binding “Buy/Sell Agreement” but was intended as a listing agreement becomes apparent when one considers the changes made in the instrument before signing; the obvious omissions from the document; as well as the fact that the defendant’s signature appears in the space normally provided for the offeree’s acceptance.

This latter fact is most significant. Defendant signed the document at the direction of Mr. Olivier, an experienced realtor. Had Mr. Olivier and the defendant ultimately intended that this instrument be an enforceable “Buy/Sell Agreement” the defendant had only to sign in the space provided for the offeror’s signature. This was not done, it being the obvious intent that the defendant in signing where he did merely consented to the terms of the listing agreement by appointing F. M. “Pete” Olivier/Jeff Patout as his listing agent. This conclusion is further supported by the testimony of Jeff Patout, who stated that the execution of the instrument was to get a listing on defendant’s property. Patout did not testify that he was authorized to bind defendant Romero to a contract to sell.

We determine that the agreement marked P-2, was a listing agreement, simply granting authority to the agent to promote a sale of defendant’s property, nothing more. It is clearly not a written offer of sale from defendant to plaintiff for the latter is not therein named as the prospective purchaser, did not sign the same and in short never became a party thereto. Plaintiff’s contention that the document P-2 constitutes a valid written offer of sale between him and defendant and that the documents marked P-3, P — 4 and P-1B reflect his timely acceptance in writing of this offer is untenable. Plaintiff is not named or otherwise referred to in P-2 or P-3. Plaintiff’s connection with these documents can only be established by parol evidence which is not allowed under our law. As set forth in Scurto v. LeBlanc, 191 La. 136, 184 So. 567 (La.1938):

“It is axiomatic under the law and jurisprudence of this State that parol evidence is inadmissible to create a title in one who never owned the immovable property or to show that the vendee was in reality some other person than the person named in the act of sale. Ceromi v. Harris, 187 La. 701, 175 So. 462, and the authorities therein cited.”

See also Eberle v. Eberle, 161 La. 313, 108 So. 549 and Miles v. Miles, 328 So.2d 394 (La.App. 3rd Cir. 1976). The letters above referred to (P — 5) are meaningless as when written there was no binding written offer of sale extant between plaintiff and defendant which could be accepted.

It can be reasonably concluded from the evidence in the record that following execution of the listing agreement defendant’s agent verbally agreed to convey the property in question to plaintiff and pursuant thereto plaintiff tendered to the agent the $1000.00 in cash which was receipted for by defendant. As aforesaid we determine that defendant’s listing agent did not have the authority to conclude a sale on behalf of defendant. However, even if it be concluded that by accepting the deposit defendant ratified the action of his agent in verbally agreeing to convey the property to plaintiff the latter’s position is not enhanced. It is well settled that a contract to purchase or sell realty must be in writing. Parole evidence cannot be received to prove the existence of such a contract. R.C.C. Articles 2275, 2276, 2462; Gelpi v. Buccola, 153 So.2d 486 (La.App. 4th Cir. 1963); Louisiana State Board of Education v. Lindsay, 227 La. 553, 79 So.2d 879 (La.1954); Klotz v. Gertrude Gardner, Inc., 293 So.2d 601 (La.App. 4th Cir. 1774), writ refused July 1, 1974.

Having determined that there never existed a written agreement between plaintiff and defendant for a purchase and sale of the immovable property in question it is axiomatic that plaintiff is not entitled to the relief sought.

For the above and foregoing reasons the judgment appealed from is reversed and it is now ordered that plaintiff’s suit be dismissed with prejudice. All costs of these proceedings at trial and on appeal are to be borne by plaintiff-appellee.

REVERSED AND RENDERED.

      . Plaintiff-appellee raises no issue as to the trial court’s denial of specific performance under the contract to sell. Defendant prior to institution of the instant matter had sold the property in question to a good faith, 3rd party purchaser,

      . Mr. F. M. “Pete” Olivier died prior to the trial of this matter.

      . Considering our ultimate conclusion that P-2 was simply a listing agreement which did not authorize the agent to bind the principal we deem it unnecessary to determine whether under said agreement F. M. “Pete” Olivier or Jeff Patout, or both were made agent.

      . A review of P-2 reveals that defendant’s signature was preceded by an X mark.

      . P-4 is a letter dated November 7, 1972 from plaintiff to his attorney, Gerald Simon asking Simon to act as his agent in accepting defendant’s offer dated September 18, 1972. Plaintiff further asked that the attorney secure defendant’s signature on the sale. P-1B is a stipulation which sets forth that Gerald Simon, plaintiffs attorney received plaintiff’s letter dated November 7, 1972 and thereafter wrote to defendant by letter dated November 8, 1972 advising defendant that the sale contract had been prepared and would be ready for his signature on November 13, 1972.


author: BEER, Judge. REDMANN, Judge,

text:
    HERTZ LEASE PLAN, INC. v. URBAN TRANSPORTATION & PLANNING ASSOCIATES, INC.
    No. 7866.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 15, 1977.
    Rehearing Denied March 1, 1977.
    Writ Refused April 22, 1977.
    Peter A. Winkler, Jr., New Orleans, for defendant-appellant.
    Satterlee, Mestayer & Freeman, Henry F. Mestayer, New Orleans, for plaintiff-appel-lee.

      Before BEER, JJ. SAMUEL, REDMANN and
   BEER, Judge.

This appeal concerns a written lease agreement dated December 31, 1971, under the terms of which plaintiff-appellee, Hertz Lease Corporation (hereafter, “Hertz"), leased two office calculators to defendant-appellant, Urban Transportation and Planning Associates, Inc. (hereafter, “Urban”), at $88.32 per month for 60 months. On August 9, 1973, Hertz, alleging default, sued Urban for the aggregate of payments due ($5,299.20) less payments made ($706.56) and recognized a credit for the unearned portion of finance charges ($1,080.00). This constituted a total demand for $3,512.64 plus legal interest, 25% attorneys’ fees, and court costs. In its first supplemental and amended petition, Hertz sought to accelerate all remaining payments alleged to be due under the lease and, at the same time, recanted the credit for unearned portion of the finance charges ($1,080.00) thereupon increasing its demand to $4,592.64.

After a trial on the merits, judgment was rendered on October 29,1975 (without written reasons) in favor of Hertz and against Urban in the amount of $3,512.64 plus attorneys’ fees in the amount of 25% of said principal, together with interests and costs. On that same day, the judgment was amended, ex proprio motu, to increase the amount of the award to $4,592.64 — the amount sought in Hertz’s first supplemental and amended petition. Counsel for Urban asserts on this appeal, for the first time, that he did not receive notice of the amended judgment required by LSA-C.C.P. Art. 1913 and further contends that the amended judgment is not in conformity with the requirements of LSA-C.C.P. Art. 1951.

Urban suspensively appeals, alleging the procedural defectiveness of the amended judgment as well as its basic contention that Hertz terminated the lease and cannot collect payments subsequent to termination. Urban acknowledges its responsibility for past due rentals up to termination, plus the value of one of the calculators (Model 716) which has been lost.

Hertz contends it did not terminate the lease but, rather, sought to judicially enforce its conventional and legal right to accelerate the balance of the payments due. Hertz further contends that Urban’s objection to the amended judgment is moot inasmuch as this appeal has been perfected and also contends that the amendment to the judgment was a permissible alteration to correct a clerical error involving no change in the substance of the judgment; and, in the alternative, argues that this court has the power to (and should) amend the judgment on its own motion.

The redhibitory claim of Urban appears abandoned and, at any event, fails for want of proof. There simply is no evidence to prove that the equipment was defective. Nor is there proof of the contention that Hertz failed to keep the calculators in operative condition. What is clear from the record is that Urban discontinued the payments that it had obligated itself to pay and, accordingly, Paragraph 11 of the lease agreement became applicable. It provides:

“Should lessee fail to make any rental or other payment when due Hertz may give lessee a written notice of termination and thereupon, as therein provided, this lease shall terminate and lessee shall forthwith deliver to Hertz as hereinafter provided all equipment then held by lessee, or in any of said events, Hertz lawfully may immediately or at any time thereafter and without demand or notice enter upon the premises or any part thereof where the equipment or any part thereof is located and repossess the same . . . and upon such entry this lease shall terminate. In case of such termination by notice or by entry or in case of termination under the provisions of any statute by reason of the default of lessee, lessee shall forthwith pay to Hertz in addition to any rental or other payment then in arrears . . . Court costs and reasonable attorney’s fees and in addition a sum equal to the balance of the rent and other payments called for hereunder for the remainder of the original or extended term as the case may be as liquidated damages and not as a penalty . . . . Hertz remedies hereunder are not exclusive and Hertz shall have the right to exercise any and all other remedies provided by law or equity as a result of any default of lessee, and each such remedy, whether granted hereunder or now or hereafter provided or permitted by law or equity, may be exercised concurrently with any other such remedy or remedies.”

Urban contends that a letter of January 25, 1973, from Hertz altered the applicability of this paragraph. That letter provides:

“You have failed to cure your default set forth in our notice to you dated December 20, 1973. We have, therefore, exercised our right to terminate the above lease because of the default, and shall hold you responsible for the balance of the rent due on the lease contract as liquidated damages.”

We believe that, by the letter, Hertz did, in fact, terminate the lease. See United States Leasing Corp. v. Keiler, 290 So.2d 427 (La.App.4th Cir., 1974); Bill Garrett Leasing, Inc. v. General Lumber and Supply Co., 164 So.2d 364 (La.App.1st Cir., 1964) writs ref. 246 La. 595, 165 So.2d 485.

However, we reject Urban’s contention that such precludes any award except for past due rental payments.

Since Urban continued in peaceable possession of the leased objects up to the trial and was never physically dispossessed of the computers, the continued possession of the equipment by Urban, although intrinsically insignificant, must be considered in light of the lease which provides that upon termination of the lease, the “ . lessee shall forthwith deliver to Hertz as hereinafter provided all equipment then held by lessee . . . ” And, paragraph 13 reads:

“On any termination of this lease, Lessee shall, at its sole expense, prepare for shipment and ship said equipment freight prepaid to Hertz’s principal place of business or such place as Hertz may direct not substantially further in distance than to Hertz’s principal place of business. Said equipment shall be at the full risk and expense of Lessee until delivered to Hertz as aforesaid in the condition here-inbefore mentioned and all expenses, if any, of loading and unloading said equipment and all risk of loss or damage to the equipment thereby, shall be borne by Lessee.”

Urban had written a letter to Hertz, dated February 5, 1973, which suggested that Hertz “come pick up this equipment.” This does not constitute a tender of the equipment nor does such letter fulfill Urban’s contractual duty to return the equipment.

Urban’s continued peaceable possession of the calculators entitles Hertz to compensation for the use of the equipment on a quantum meruit basis. LSA — C.C. Arts. 2292-2294; Executive Car Leasing Co. of New Orleans, Inc. v. Federico, 313 So.2d 382 (La.App.4th Cir., 1975); Skrmetta v. State Through Department of Institutions, 206 So.2d 548 (La.App.1st Cir., 1968).

We now turn to appellant’s complaint surrounding the amended trial court judgment. The required notice of judgment under LSA-C.C.P. Art. 1913 is intended to protect the litigant’s right to apply for new trial and his right to petition for appeal. XL Finance Company v. Hollinger, 185 So.2d 873 (La.App.3rd Cir., 1966). Appellant has successfully appealed the original trial court judgment and thereby obviated the notice of judgment. Carlisle v. Carlisle, 313 So.2d 908 (La.App.2nd Cir., 1975) writs denied 319 So.2d 442 (La.).

Urban should be charged for the rental of both calculators up to the end of January, 1973, based on the rate of $88.32 per month, but allowed a credit for the 8 payments made, or $706.56. Thereafter, until the date of the trial on October 20, 1975 (approximately 33 months), Urban was presumably in peaceable possession of both calculators and should be charged on a quantum meruit basis, for the use of the calculators. However, we do not feel that the finance charge increment should be allowed in computing a fair use value, Hence, we calculate the value of such use as follows:

Finally, the record indicates, and both counsel have represented to us, that the Model 716 calculator has been lost. Accordingly, we allow plaintiff the value of the calculator which the record indicates to be $985.00.

In recapitulation, we find plaintiff entitled to $3,340.60, computed as follows:

Rent on both calculators up to termination of lease (January, 1973) $ 441.60

Use value of both calculators up to date of trial (October 20, 1975) disallowing finance charges 1,914.00

Price (cost of replacement) of the Model 716 calculator, the loss of which was acknowledged by counsel '■ for Urban 985.00

Total Damages $3,340.60.

Accordingly, the judgment appealed from is amended to decrease the principal award from $3,512.64 to $3,340.60. As amended, the judgment is, in all respects, affirmed.

AMENDED AND AFFIRMED.

REDMANN, Judge,

dissenting in part.

The current practice of “leasing” equipment needed for one’s business brings many obvious benefits. The “lessee” conserves available capital (or borrowing power) and (at least in a true lease) may find rental more advantageous than depreciation as a deduction for income tax purposes. The “lessor” may make more profit from “rental” than he would have from interest on a loan, and may find equipment ownership a more attractive security device than chattel mortgage.

But leasing is not a thornless rose. A lessee may find that, despite having paid rentals totalling more than the full price of the leased equipment, he does not own the equipment at the end of the lease; and a lessor who is not paid his rent may find disastrous the typical lease-remedy of eviction, because it may leave him with used equipment whose price he has not recovered from the lessee and may be unable to recover by sale or further lease.

Our parties, in any case, did expressly confect their business arrangement as a lease (rather than as conventional financing). The lease in paragraph 7 expressly prevents any possibility of construing it as a “lease-purchase” or conditional sale: Urban as lessee has no option to purchase, no right to acquire title in any manner whatsoever, no rights whatsoever except those of lessee. The lessor, Hertz, also has no rights except those of lessor, unless the contract itself provides some other enforceable right.

The contract does contain a stipulation for “liquidated damages”. Except for any option arising from that stipulation, the basic options available to a lessor whose lessee has not paid the rent are:

1. The lessor may enforce the lease, suing for the rent (even for the balance of the term) and seizing and selling the lessee’s property (including the right to use the leased item during the remainder of the term of the lease);
2. The lessor may terminate the lease, ending the lessee’s right to use the leased item for the remainder of the term of the lease, but also ending the lessor’s right to collect rent for that remainder.

The “liquidated damages” clause in our case seeks to modify the effects of termination, by ending the lessee’s right to use the leased item but not the lessor’s right to collect rent! Worse, the clause would make all installments of rent payable in full immediately as “liquidated damages” rather than over the five-year term of the lease. Thus the clause would provide so-called “liquidated damages” far in excess of conceivable actual damages and it is for this reason alone unenforceable; TAC Amuse. Co. v. Henry, La.App. 4 Cir. 1970, 238 So.2d 398.

The clause is also unenforceable because prohibited by C.C. 1935:

The damages due for delay in the performance of an obligation to pay money are called interest. The creditor is entitled to these damages without proving any loss, and whatever loss he may have suffered he can recover no more.

Thus a judge may not award other damages for delay in performing an obligation to pay money; Garbo v. Maison Jolie, Inc., La.App. 4 Cir. 1963,155 So.2d 238. The rule of C.C. 1935 that a money creditor “can recover no more” than interest as damages for delay makes unenforceable a contractual provision for liquidated damages (in excess of lawful interest) for breach of an obligation to pay money.

Unlike that in Executive Car Leas. Co. of N.O., Inc. v. Alodex Corp., La. 1973, 279 So.2d 169, this lease does not provide for a “termination value adjustment” which might lawfully relieve the lessor from the loss in market value of a new compared to a used movable (especially, as in Executive, an automobile). Other contractual possibilities come to mind, but these parties have not stipulated for them.

When parties whose fundamental relationship is borrower and lender reject the security devices such as chattel mortgage supplied by Louisiana law and elect instead to adopt the roles of lessor and lessee, the courts should respect the parties’ election and treat them as lessor and lessee. To do so here is to recognize that Hertz terminated its lease with Urban and thereby ended Urban’s obligation to pay rent thereafter. Urban therefore owes Hertz only the $441.60 rent due prior to termination, plus the $985 replacement cost of the lost calculator, or a total of $1,426.60.

I therefore concur in the majority s reduction in the judgment, but I would reduce the judgment even more.

      . In neither the trial court nor here has appellant or appellee addressed the issue of ultimate disposition of the Model 1016 PR calculator which remains in the custody of the Clerk of the Civil District Court for the Parish of Orleans as a result of its apparent tender, at the time of trial, by Urban Transportation and Planning Associates, Inc. Since neither appellant nor appellee has seen fit to address this issue, we feel little obligation so to do insofar as either of their interests are concerned, but we are aware of the fact that the device is taking up storage space in the Clerk’s office. Accordingly, the parties should resolve this issue by informal agreement or by reference to the terms of the original lease agreement or in such other manner as will result in the expeditious removal of the machine from storage in the Clerk’s office.

      . The majority errs in citing Executive as entitling a lessor to compensation for use of equipment on a quantum meruit basis. In Skrmetta v. State, La.App. 1 Cir. 1968, 206 So.2d 548, also cited by the majority for that principle, it was proved that the state continued to use leased canning equipment after the lease expired. Not only is similar proof not present here: the evidence is to the contrary.


author: ROBERTSON, Justice,

text:
    Johnny M. KING v. STATE of Mississippi.
    No. 49492.
    Supreme Court of Mississippi.
    Feb. 9, 1977.
    Hugh L. Bailey, Winona, for appellant.
    A. F. Summer, Atty. Gen. by John C. Ellis, Sp. Asst. Atty. Gen., Jackson, for ap-pellee.
    Before PATTERSON, ROBERTSON and BROOM, JJ.
   ROBERTSON, Justice,

for the Court:

Johnny M. King was indicted, tried and convicted in the Circuit Court of Montgomery County of the crime of “assault with intent to forcibly ravish one Sandra Knight, a female human being of previous chaste character.” His term of imprisonment was fixed by the jury at two years in the State Penitentiary.

The indictment was framed under the provisions of Mississippi Code Annotated section 97-3-71 (1972), which provides:

“Every person who shall be convicted of an assault with intent to forcibly ravish any female of previous chaste character shall be punished by imprisonment in the penitentiary for life, or for such shorter time as may be fixed by the jury, or by the court upon the entry of a plea of guilty.”
Appellant contends that:
1. “The Trial Court Erred in Not Excluding From Evidence the Alleged Statement, Exhibits 2 and 3 of the Appellant”; and
2. “The Charge Against the Appellant was not Proven Beyond a Reasonable Doubt”.

There is no merit in assignment of error number 1. Defendant King not only signed a voluntary statement (one page— Exhibit 2) setting forth in great detail his Miranda rights, but also admitted at the preliminary hearing that his rights were read to him, that he fully understood his rights, that he was not under threat, duress or force, and that he willingly and voluntarily signed the statement. Page 2 of the statement was admitted as Exhibit 3 to the testimony of Mrs. Army Hobbs, the secretary who took down the statement in shorthand and immediately transcribed her notes. The statement was in the form of questions by Chief of Police Steed of the Winona Police Department and answers by Defendant King. Mrs. Hobbs testified that it was a true, accurate and correct transcription of her shorthand notes. King admitted that he signed the statement containing his Miranda rights, but testified that Page 2 (Exhibit 3) was not presented to him after it was typed up, that he had not read it nor signed it.

Chief Steed testified positively and unequivocally that he read to King every word of his Miranda rights before any statement was made by King; that King fully understood his rights; that no promise was made; that no threat was made, and that no force or coercion of any kind was exerted on King; that King freely and voluntarily answered the questions asked him; and that Exhibit 3 was a true and accurate statement of questions propounded to King and answers given by him. In fact, Chief Steed used the statement as a memo to refresh his memory and testified as to every question asked King and every answer given by him.

The appellant’s contention, that the statement might not be accurate and therefore should not have been admitted into evidence, is not a valid objection.

In Jordan v. State, 320 So.2d 376 (Miss.1975), we said:

“The question raised by Jordan’s testimony that he did not utter all of the words in the confession is not availing to his argument on the admissibility of the confession. Whether the confession as introduced was accurate went to the weight and credibility of the testimony and was a jury issue.” 320 So.2d at 377.

In his second assignment of error appellant argues that the charge against him was not proven beyond a reasonable doubt.

Sandra Knight, a 10-year-old girl, testified that at 8:00 A.M. on April 17,1975, she was returning to her home from school to change her clothes when Defendant King stopped at a stop light and, when she refused to get in his car, forcibly pulled her into the car. She further testified that when she was trying to jump out of the car that he caught her hand and pulled her toward him, that he put his hand between her legs; and that he tried to get on top of her.

King’s statement was:

10:35 DATE APRIL 17, 1975 PAGE 2
STATEMENT OF: JOHNNY MACK KING AGE: 25
I WAS GOING DOWN TO SEE A FRIEND OF MIND (Sic) TO SEE IF I COULD BORROW HIS TRACTOR. I PICKED UP A LITTLE GIRL AT THE RED LIGHT ON THE S0UTHSIDE OF THE HIGHWAY. THE DOOR WAS HARD TO OPEN, SO I PUSHED THE DOOR OPEN TO LET HER IN. CHIEF STEED, "AFTER YOU PICKED UP THE LITTLE GIRL WHERE DID YOU GO?" JOHNNY, I WENT DOWN BY THE MIDDLE SCHOOL AND THE PRIVATE SCHOOL. CHIEF STEED, “WHY DID YOU GO ALL THE WAY DOWN TO THE PRIVATE SCHOOL?" JOHNNY, SOME FELLOW WAS ON MY TAIL AND I WAS TRYING TO GET AWAY FROM HIM. CHIEF STEED, "WHERE DID YOU GO AFTER YOU LEFT THE PRIVATE SCHOOL, AND WHY DIDN'T YOU PUT HER OUT WHEN YOU WERE SUPPOSE TO?" JOHNNY, A CAR PULLED OUT AND I WAS TRYING TO CHEER HER UP BECAUSE I PASSED BY THE PLACE SHE WANTED TO GET OUT. I STOPPED IN THE ROAD BY THE PET MILK PLANT. I WAS TRYING TO CHEER HER UP BECAUSE SHE WAS STILL UPSET AND I STOPPED TO LET HER OUT. CHIEF STEED, "THE MAN THAT WAS TAILING YOU WAS THE MAN THAT SAW YOU PULL THE LITTLE GIRL IN THE CAR." CHIEF STEED, “DID YOU ASK HER TO DO ANYTHING WITH YOU?" JOHNNY, NO. I JUST TOUCHED HER COAT. CHIEF STEED, "WHAT WERE YOU GOING TO DO WITH HER COAT?" JOHNNY, I TOLD HER IT WAS A PRETTY COAT TO CHEER HER UP. CHIEF STEED, "THE GIRL TOLD US EVERYTHING THAT HAPPENED." JOHNNY, WHAT IF I WENT AHEAD AND TOLD EVERYTHING? . . . CHIEF STEED, "THE LITTLE GIRL HAS NO REASON TO LIE SHE IS JUST 10 YEARS OLD." . . . CHIEF STEED, "IF SHE HAD BEEN WILLING WOULD YOU HAVE HAD INTERCOURSE WITH HER?" JOHNNY, I DON'T KNOW. IF SHE HADN'T GOTTEN SCARED AND I HAD NOT GOTTEN SCARED I WAS PLANNING ON GOING THROUGH WITH IT. I MADE A PASS AT THE LITTLE GIRL. I PUT MY HANDS BETWEEN HER LEGS, I MEAN ON HER THIGH. I WAS PULLING HER OVER WHEN A CAR PAST (Sic) BY AND SHE GOT OUT AND RAN. CHIEF STEED, "DO YOU HAVE A GIRL FRIEND?" JOHNNY, YES, I HAVE A GIRLFRIEND. . . . CHIEF STEED, "YOU DID HAVE IN MIND TO HAVE INTERCOURSE WITH HER." JOHNNY, IT WAS MY INTENTION. CHIEF STEED, "YOU REAL-LY INTENDED TO RAPE THAT LITTLE GIRL." JOHNNY, IT WAS MY INTENTION. CHIEF STEED, "DO YOU HAVE ANYTHING ELSE YOU WANT TO TELL US?" NO, SIR.
/s/ H. L. Steed Chief of police 4-17-75 /s/ Army S. Hobbs 4/17/75 /s/ W. P. Branch Capt. 4-17-75

Defendant King took the stand in his own defense and repudiated the statement that he intended to have intercourse with the little girl, and he contends on appeal that nobody would know his intentions but him, and that his intention was not proved beyond a reasonable doubt.

This contention was also made in Thames v. State, 221 Miss. 573, 73 So.2d 134 (1954). In Thames, we said:

“Appellant also contends that the proof was not sufficient to prove that the appellant intended to commit rape. Intent, being a state of mind, is rarely susceptible of direct proof, but ordinarily must be inferred from the acts and conduct of the party and the facts and circumstances attending them which reasonably indicate them to the minds of others. 9 Am.Jur. 271.” 221 Miss, at 577, 73 So.2d at 136.

In Fondren, Alias Taylor v. State, 253 Miss. 241,175 So.2d 628 (1965), Fondren was convicted of the crime of burglary with intent to rape. In affirming the conviction in Fondren, this Court said:

“ ‘The intent, however, may, and generally must, be proved by circumstantial evidence, for as a rule it is not susceptible of direct proof; and it has been held that the evidence of intent sufficient to support a conviction of burglary may be slight, in the absence of any evidence that the entry was made with any other intent. . . . Even where the felony was not actually committed, an intent to commit it may be inferred from the time and manner at and in which the entry was made, or the conduct of accused after the entry, or both.’
“The specific intent to rape is consistent with the proven facts and is reasonably inferable. The matter was submitted to the jury on proper instructions and we feel they were justified in their decision insofar as this question is concerned.” 253 Miss, at 252-53, 175 So.2d at 632-33.

There was ample evidence from Sandra Knight’s own testimony and from the free and voluntary statement of defendant King to justify the jury in finding the defendant guilty as charged beyond a reasonable doubt.

We, therefore, affirm the conviction and sentence.

AFFIRMED.

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


text:
    Paul BIRD et al. v. MICHAEL CONSTRUCTION COMPANY OF MISSISSIPPI, INC., and Gulf Paving Incorporated.
    No. 49182.
    Supreme Court of Mississippi.
    Feb. 23, 1977.
    Rehearing Denied March 16, 1977.
    Cecil G. Johnson, Leman D. Gandy, Biloxi, for appellants.
    White & Morse, William M. Rainey, Gulf-port, for appellees.
   Appeal from Chancery Court, Harrison County; Frank W. Alexander, Chancellor.

Before PATTERSON, P. J., ROBERTSON and BROOM, JJ., and ERNEST KELLNER, Commissioner.

AFFIRMED.


text:
    Aldan E. SWINDLER et al. v. John Frank HOUSTON, Jr., et al.
    No. 49162.
    Supreme Court of Mississippi.
    Feb. 23, 1977.
    Douglas R. McKinley, Pearl, for appellants.
    Johnston & Adams, Jerry T. Johnston, Brandon, for appellees.
   Appeal from Chancery Court, Rankin County; Osborn Guyton Idom, Chancellor.

Before GILLESPIE, C. J., and SMITH and WALKER, JJ.

AFFIRMED.


text:
    CITY OF JACKSON v. SOUTHERN PIPE & SUPPLY COMPANY OF MISSISSIPPI.
    No. 49224.
    Supreme Court of Mississippi.
    Feb. 23, 1977.
    John E. Stone, Jackson, for appellant.
    Riddick & McCoy, B. L. Riddick, Jackson, for appellee.
   Appeal from County Court, Hinds County; Dan M. Lee, Judge.

Before INZER, P. J., and SUGG and LEE, JJ.

AFFIRMED.


text:
    John Raymond REECE v. STATE of Mississippi.
    No. 49525.
    Supreme Court of Mississippi.
    Feb. 23, 1977.
    Parker, Averill & Winston, Roy 0. Parker, Tupelo, for appellant.
    A. F. Summer, Atty. Gen., by Wayne M. Snuggs, Special Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Pontotoc County; Fred Wicker, Judge.

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

AFFIRMED.


text:
    Carolann Payne ALEXANDER v. STATE of Mississippi.
    No. 49563.
    Supreme Court of Mississippi.
    Feb. 23, 1977.
    Harry L. Kelley, Jackson, for appellant.
    A. F. Summer, Atty. Gen., by Karen A. Gilfoy, Asst. Atty. Gen., Jackson, for appel-lee.
   Appeal from Circuit Court, Madison County; Rufus H. Broome, Judge.

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

AFFIRMED.


text:
    Richard A. HOLCOMBE v. STATE of Mississippi.
    No. 49572.
    Supreme Court of Mississippi.
    Feb. 23, 1977.
    Robert M. Acevedo, Biloxi, for appellant.
    A. F. Summer, Atty. Gen., by Karen A. Gilfoy, Asst. Atty. Gen., Jackson, for appel-lee.
   Appeal from Circuit Court, Harrison County; Floyd J. Logan, Judge.

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

AFFIRMED.


text:
    Walter FORBES v. STATE of Mississippi.
    No. 49750.
    Supreme Court of Mississippi.
    Feb. 23, 1977.
    Leon E. Provine, Grenada, for appellant.
    A. F. Summer, Atty. Gen. by Wayne M. Snuggs, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Grenada County; Clarence E. Morgan, Jr., Judge.

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

AFFIRMED.


text:
    Will MARSHALL and Wealthie Marshall v. SULLIVAN CONSTRUCTION COMPANY, INC., et al.
    No. 49170.
    Supreme Court of Mississippi.
    Feb. 23, 1977.
    Laurel G. Weir, Philadelphia, Henry C. Wood, Louisville, for appellant.
    Hathorn & Hathorn, J. Joy Hathorn, Louisville, for appellees.
   Appeal from Circuit Court, Winston County; Clarence E. Morgan, Jr., Judge.

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

REVERSED AND REMANDED.

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


text:
    FARNALE, INC., et al. v. BRENT’S NURSERY, INC., et al.
    No. 49002.
    Supreme Court of Mississippi.
    Feb. 23, 1977.
   Appeal from Circuit Court, Hinds County; Russel D. Moore, Judge.

Perry, Phillips, Crockett, Morrison & Herring, Thomas W. Crockett, Jr., Jackson, Alfred G. Nicols, Jr., Brandon, for appellant.

Butler, Snow, O’Mara, Stevens & Canna-da, W. Scott Welch, III, Young, Scanlon & Sessums, Pat H. Scanlon, Jackson, for ap-pellee.

Before GILLESPIE, C. J., and SUGG and BROOM, JJ.

AFFIRMED.

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


text:
    Willie DAVIS and Sanderson Farms, Inc. v. Mrs. Leo FEAZELL et al.
    No. 49198.
    Supreme Court of Mississippi.
    Feb. 23, 1977.
    Roberts & Easterling, M. M. Roberts, Hattiesburg, Holifield & Harper, Matthew Harper, Jr., Laurel, S. Wayne Easterling, Hattiesburg, for appellants.
    John K. Keyes, Collins, Daniel, Coker, Horton, Bell & Dukes, Curtis E. Coker, Jackson, for appellee.
   Appeal from Circuit Court, Covington County; George B. Grubbs, Judge.

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

REVERSED AND REMANDED.

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


text:
    Bruce GATWOOD v. STATE of Mississippi.
    No. 49537.
    Supreme Court of Mississippi.
    March 2, 1977.
    Rehearing Denied March 16, 1977.
    Andalman, Bergmark, Adelman & Steiner, Michael Adelman, Hattiesburg, for appellant.
    A. F. Summer, Atty. Gen., by Wayne M. Snuggs, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Forrest County; Jack B. Weldy, Judge.

Before INZER, P. J., SUGG and LEE, JJ., and WILLIAM R. LAMB, C.

AFFIRMED.


author: WALKER, Justice, PATTERSON, Presiding Justice,

text:
    Olius McCRORY v. STATE of Mississippi.
    No. 49390.
    Supreme Court of Mississippi, En Banc
    March 2, 1977.

      Ronald N. Ashley, Robert L. Houston, Jackson, for appellant.
    A. F. Summer, Atty. Gen. by Ben H. Walley and Karen A. Gilfoy, Asst. Attys. Gen., Jackson, for appellee.
   WALKER, Justice,

for the Court:

The petition for rehearing filed on behalf of the State of Mississippi is granted and the opinion reversing the conviction of Olius McCrory (handed down November 2, 1976) is hereby withdrawn and the following opinion is substituted therefor.

Olius McCrory was cited for contempt of court and fined the sum of $50 by the Circuit Court of Hinds County, Mississippi. McCrory had refused to comply with an order of that court directing him to provide exemplars of his handwriting to the Hinds County Grand Jury. In his appeal to this Court he contends that the Grand Jury had no authority to make an independent investigation of his case, and, even if it did, his right not to provide handwriting exemplars is guaranteed by the self-incrimination clause of the State Constitution. Mississippi Constitution Article 3, Section 26 (1890). McCrory raises no federal claim before this Court.

The facts are not in dispute. McCrory was arrested on March 4, 1975, by the Jackson Police, who suspected him of forgery and utterance of a check. On advice of counsel, he refused to provide handwriting exemplars to the police. On March 14, 1975, McCrory appeared before the Hinds County Grand Jury, pursuant to a subpoena. The Grand Jury directed him to produce an exemplar of his handwriting and McCrory refused. The District Attorney sought and received an order from the Circuit Court of Hinds County directing McCrory to provide the exemplars. When McCrory again refused, he was cited for contempt and fined.

There is no merit to McCrory’s contention that the Grand Jury lacked the authority to investigate his case upon presentation by the District Attorney. It is the duty of the Grand Jury to make such an investigation, for the protection of the accused as well as the general public. This Court has noted that it is the duty of the Grand Jury, when presented with an indictment, to examine “the evidence in support of it to determine if sufficient to secure the conviction of the accused.” In Re Davis, 257 So.2d 884, 886 (Miss.1972). To facilitate this investigatory function, the Legislature has provided that witnesses may be subpoenaed to appear before the Grand Jury. Miss. Code Ann. § 99-9-23 (1972). It is nonsense to suppose that the Legislature intended that witnesses might be summoned but not interrogated. We conclude that the Grand Jury had the authority to interrogate McCrory.

There remains the constitutional question of whether McCrory had the right to refuse to supply the handwriting exemplar. He bases his refusal on section 26 of the Mississippi Constitution, which provides that the accused “shall not be compelled to give evidence against himself.” This language differs from the Fifth Amendment to the United States Constitution, which provides that no person “shall be compelled in any Criminal Case to be a witness against himself.” Because of this distinction, McCrory argues that the Mississippi Constitution provides a broader protection against self-incrimination than does the Federal Constitution.

This distinction is crucial to McCrory’s case, since the United States Supreme Court has clearly held that neither the Fourth Amendment nor the Fifth Amendment precludes a state court from ordering the production of handwriting exemplars. The Court has reasoned that the Fifth Amendment only bars the compelled production of testimonial evidence, as opposed to identifying physical characteristics. The Court in Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967), held squarely that a handwriting exemplar was an identifying characteristic, and thus outside the protection of the Fifth Amendment:

The taking of the exemplars did not violate petitioner’s Fifth Amendment privilege against self-incrimination. The privilege reaches only compulsion of “an accused’s communications, whatever form they might take, and the compulsion of responses which are also communications, for example, compliance with a subpoena to produce one’s papers,” and not “compulsion which makes a suspect or accused the source of ‘real or physical evidence’ ..” Schmerber v. California, 384 U.S. 757, 763-764, 86 S.Ct. 1826, 16 L.Ed.2d 908. One’s voice and handwriting are, of course, means of communication. It by no means follows, however, that every compulsion of an accused to use his voice or write compels a communication within the cover of the privilege. A mere handwriting exemplar, in contrast to the content of what is written, like the voice or body itself, is an identifying physical characteristic outside its protection. United States v. Wade, supra, 388 U.S. 218 at 222-223, 87 S.Ct. 1926, 18 L.Ed.2d 1149. No claim is made that the content of the exemplars was testimonial or communicative matter. Cf. Boyd v. United States, 116 U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746. (Id. at 266-67, 87 S.Ct. at 1953, 18 L.Ed.2d at 1182-83.)

Furthermore, in United States v. Mara, 410 U.S. 19, 93 S.Ct. 774, 35 L.Ed.2d 99 (1973), the Court held that a Grand Jury witness could be cited for contempt for refusal to supply handwriting exemplars to the Grand Jury.

The United States Supreme Court has found that a suspect may also be subjected to several other procedures, consistently with the Fifth Amendment. A suspect may be required to submit to a blood test. Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966). In United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967), the Court held that a suspect could be required to appear at a lineup, to wear clothes worn by the criminal, and to utter words spoken by the criminal for purposes of identification. See also Holt v. United States, 218 U.S. 245, 31 S.Ct. 2, 54 L.Ed. 1021 (1910). It is likewise clear that the Fifth Amendment does not protect a suspect from being fingerprinted against his will. See Davis v. Mississippi, 394 U.S. 721, 730, 89 S.Ct. 1394, 1399, 22 L.Ed.2d 676, 683 (1969) (Stewart, J., dissenting); Wade, supra, 388 ULSL at 223, 87 S.Ct. at 1930, 18 L.Ed.2d at 1155; Schmerber, supra, 384 U.S. at 764, 86 S.Ct. at 1832, 16 L.Ed.2d at 916. Most recently, the Court has held that a suspect may be required to provide a voice exemplar for comparison with tape recordings in evidence. United States v. Dionisio, 410 U.S. 1, 93 S.Ct. 764, 35 L.Ed.2d 67 (1973).

This Court has found these opinions persuasive in its interpretation of the Mississippi Constitution. In Smith v. State, 229 So.2d 551 (Miss. 1970), we held that police could require a suspect to be fingerprinted and to exhibit himself for purposes of identification. We earlier noted that a suspect could be required to repeat the words uttered by a criminal and to put on articles of clothing for purposes of identification. Fondren v. State, 253 Miss. 241, 175 So.2d 628 (1965). The Legislature has set up statutory regulations for the testing of breath, blood and urine under certain circumstances. Miss. Code Ann. §§ 63-11-5 — 63-11-7 (1972). This Court has not heretofore had occasion to rule on whether these tests might violate section 26 of the Mississippi constitution, although we have held that whatever Fourth Amendment rights the tests might transgress may be waived by consent. Cutchens v. State, 310 So.2d 273 (Miss.1975).

We must determine, then, whether the follow Gilbert and Mara in holding that a suspect’s privilege against self-incrimination is not violated by the compelled production of handwriting exemplars. From the pattern of cases recited above, we do not suggest that the Mississippi Constitution must always be interpreted identically to the United States Constitution. It is a basic principle of our Federal Republic that a sovereign state may place greater restrictions on the exercise of its own power than does the Federal Constitution. See Oregon v. Hass, 420 U.S. 714, 719, 95 S.Ct. 1215, 1219, 43 L.Ed.2d 570, 575-76 (1975).

However, we believe it wise to begin with the presumption that similar sections of the United States Constitution and the Mississippi Constitution ought to be construed similarly. As a general rule, the imposition of two different standards would introduce unnecessary confusion among lawyers, judges, and law enforcement officers throughout the state. See Howard, State Courts and Constitutional Rights in the Day of the Burger Court, 62 Va.L.Rev. 873, 898 (1976). We must determine whether there is anything in the history or language of our Constitution which overcomes this initial presumption.

It is true that section 26 states the accused “shall not be compelled to give evidence against himself.” McCrory argues that while the compelled production of handwriting exemplars does not require the accused “to be a witness against himself” in the words of the Fifth Amendment to the United States Constitution, those exemplars do constitute giving “evidence against himself” as forbidden by our section 26. We perceive no such fine distinction between giving evidence against oneself and being a witness against oneself, nor do we suppose that the framers of our Constitution intended any such distinction. This language in the Constitution of 1890 appears exactly as it did in section 10 of the Constitution of 1817, drafted by the convention which secured Mississippi’s entry into the United States. That language was retained in section 10 of the Constitution of 1832, and was reaffirmed by the Conventions of 1861 and 1865. The language appeared as section 7 of the Constitution of 1868. An examination of the Journals of each of those State Conventions gives no indication that the framers intended this language to have any special significance beyond that already guaranteed in the Federal Constitution. Indeed, a standard historical work indicates that those who originally drafted the language in 1817 intended no particular innovation:

Except for a few minor exceptions, the Mississippi Constitution of 1817 was hardly innovative. Most of its provisions were borrowed from the Constitutions of Tennessee, Kentucky, and Louisiana. The editor of the Worchester Spy succinctly summarized Mississippi’s Constitution when he wrote that “it is . so similar to the constitutions of many of the other states that its perusal does not excite much interest.” (Haynes, The Road to Statehood, in 1 R.A. McLemore, A History of Mississippi 217, 250 (1973).

Our examination gives us no reason to conclude that, in this case, section 26 of the Mississippi Constitution provides any broader protection than does the Fifth Amendment to the United States Constitution. We therefore hold that McCrory was required to comply with the lawful order of the court directing him to produce handwriting exemplars, and was properly found in contempt for his failure to do so.

The District Attorney stipulated that he intended to introduce this evidence at McCrory’s trial, if McCrory was indicted. We find this stipulation irrelevant to our decision. We are not called upon to decide whether or not the handwriting exemplars might be introduced at .McCrory’s trial, and we make no suggestion as to our resolution of that question. We decide only that the Grand Jury had a right and a duty to investigate McCrory’s alleged crime, and that McCrory had no right to refuse to provide the handwriting exemplars as ordered by the court.

Therefore, McCrory’s citation for contempt as well as the imposition of his fine must be affirmed.

AFFIRMED.

GILLESPIE, C. J., and SMITH, ROBERTSON, SUGG and LEE, JJ., concur.

PATTERSON and INZER, P. JJ., and BROOM, J., specially concur.

PATTERSON, Presiding Justice,

specially concurring:

I concur in the opinion because I understand it considers only the issue of whether McCrory was properly fined for refusing to provide exemplars to the grand jury. In doing so I do not wish to be understood as passing upon or adjudicating the greater question of McCrory’s immunity from prosecution if the coercion of the contempt citation persuades him to give such evidence before the grand jury.

INZER, P. J., and BROOM, J., join in this opinion.


author: FAULKNER, Justice.

text:
    Katherine H. CLARK v. CHRYSLER CORPORATION.
    SC 1849.
    Supreme Court of Alabama.
    Feb. 18, 1977.
    Dieter J. Schrader, Huntsville, for appellant.
    L. Tennent Lee, III, Huntsville, for appel-lee.
   FAULKNER, Justice.

Katherine Clark filed suit against Chrysler seeking compensatory and punitive damages for fraudulent deceit because Chrysler did not advise her of her right to Workmen’s Compensation. On motion, the trial court granted summary judgment in favor of Chrysler. We affirm.

Katherine was employed by Chrysler on May 2, 1967, and worked as a machine operator on the radio assembly line through April 19, 1973. On April 23, she filed a claim for sickness and accident benefits. Chrysler’s insurer, Aetna Casualty and Surety Company, paid her $100 per week for one year, and then paid her $350 per month. She was entitled to this monthly payment as Extended Disability benefits until March, 1979. However, this payment was reduced by Aetna when Clark was awarded Social Security disability payments.

Clark’s complaint alleges that she contracted “occupational pneumonoconiosis” on April 19, 1973. She claims that she thought the Extended Disability payments were Workmen’s Compensation, until she was informed by a doctor in Lackawanna, New York in July, 1974 that they were not. Her complaint alleges that Chrysler suppressed the fact that it was under an obligation to advise her of her right to Workmen’s Compensation benefits. Fraudulent deceit is the basis of the suit.

The trial court found as a matter of law that the employer did not have any obligation to advise the employee that she could file a claim for Workmen’s Compensation. We agree with this finding.

Compensation rights and remedies for occupational pneumonoconiosis are governed by Article 2A, §§ 313(1)-313(16), T. 26, Code of Alabama. Specifically, § 313(16) excludes all other rights and remedies of an employee for contraction of the disease; and time for filing a claim for the compensation is governed by § 313(10). There is no language in the Article that indicates, or even suggests, that the employer is under an obligation to advise an employee of Workmen’s Compensation benefits. On the contrary, it is the employee who must take the initiative. Notice to the employer — filing a claim — these are the duties of the employee. It is he who has the burden of going forward to collect compensation benefits under the statute.

Under the posture of this case we preter-mit discussion of whether the statute of limitations tolled because of the payments received by Clark. In other words, we do not decide the question of whether those payments were compensation, or in lieu of compensation. The sole question here is whether an employer is under an obligation to advise an employee of Workmen’s Compensation benefits. We hold that he is not. The order of the trial court granting summary judgment is affirmed.

AFFIRMED.

TORBERT, C. J., and MADDOX, SHORES, and BEATTY, JJ., concur.

BLOODWORTH, JONES, ALMON and EMBRY, JJ., not sitting.