text:
    James GRADY v. ALLSTATE INSURANCE COMPANY.
    No. 8841.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 14, 1978.

      Gordon Hackman, Boutte, for plaintiff-appellee.
    Porteous, Toledano, Hainkel & Johnson, E. Ross Buckley, Jr., New Orleans, for defendant-appellant.
    Before GULOTTA, SCHOTT and WICKER, JJ.
   GULOTTA, Judge.

Defendant, the liability insurer of a car rental agency, appeals from a judgment in favor of plaintiff for damages arising out of an accident which occurred when the rented vehicle, in which the lessee was a passenger, was being driven by a third party. The negligence of the driver of the rented vehicle is not in dispute. We affirm.

The multi-faceted contentions of the defendant-insurer are: 1) that the trial judge erred in denying the insurer’s motion for summary judgment where the affidavits, without contradiction, clearly demonstrated that the driver of the rented automobile was not the person who rented the vehicle and had no permission from the rental agency to drive the automobile; 2) that the trial judge abused his discretion in extending the deadline for taking depositions of physicians (upon plaintiff’s request) beyond the date set in the pretrial order; 3) that the $3,750.00 general damage award is excessive; and 4) that no evidence exists in the record to support the $463.96 special damage award.

Before considering these contentions, we note, ex proprio motu, that on February 1,1974, the insurer filed a motion for summary judgment. On April 3, 1974, the trial judge rendered the following order:

“Mover’s motion for summary judgment is granted on the pleadings, said judgment to take effect on the 10th day of April, 1974. Should respondent file memorandum of law prior to that date, the Court will consider said argument and render an amended judgment, if one is appropriate.”

Subsequently, plaintiff (respondent) filed a memorandum in opposition and the trial judge on May 15, 1974, rendered an order denying Allstate’s motion for summary judgment. Our initial concern was that the April 3 judgment was a final one, later set aside after the delay for the filing of a motion for new trial had expired, in violation of LSA-C.C.P. art. 1951. On further reflection, however, we conclude that the conditional granting of the motion for summary judgment, by its own terms, is not a final judgment. See LSA-C.C.P. art. 1918; Spencer v. Burglass, 288 So.2d 68 (La.App. 4th Cir. 1974). Accordingly, our initial concern that the trial judge’s actions may have been in contravention of LSA-C.C.P. art. 1951 is without merit.

In connection with the denial of the summary judgment, it is Allstate’s argument that the rental agreement, signed by the lessee, provides, in pertinent part:

“ * * * Further said vehicle will be operated only by Renter or (1) the employer, employee, or fellow employee of Renter, or (2) any member of Renter’s immediate family: provided that Renter’s permission first be obtained and all such operators shall be at least 21 years of age and duly qualified and licensed.’'

According to Allstate, because the rented automobile was not driven by lessee but by one who was neither an employer, an employee nor a member of the lessee’s immediate family, the insurer cannot be held liable. The defendant insurer points out its liability under the policy is “To pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages . (emphasis ours) and further states that an “insured” is defined under the policy as a named insured or if the named insured is an individual, his spouse if a resident of the same household and includes any person while using the automobile provided the actual use is by the named insured or such spouse or with the permission of either. Because the named insured, the rental agency, had not given permission to the non-lessee operator of the automobile to drive, the insurer argues no liability coverage exists. We reject this argument.

The Louisiana Supreme Court in Jones v. Breaux, 289 So.2d 110 (La.1974) confronted a problem similar to that raised in the instant case and concluded that liability coverage existed. In Jones, the court stated that the rental agreement, which was not made a part of the policy, “vitally and drastically” limited the omnibus insured clause of the insurance contract in derogation of LSA-R.S. 22:62s. Interpreting the omnibus insured clause (which is identical to that in the instant case), the Jones court further stated that the lessee, though not driving the rented vehicle at the time of the collision, was a passenger in it and “was ‘using the automobile’ and was ‘legally responsible for the use’ ” at the time of the accident. The court went on to say that the renter or lessee had the lessor’s permission to use the automobile and concluded that coverage existed under the omnibus insured clause of the policy. The Jones decision, in our opinion, is dispositive of this issue in the instant case. We conclude the trial judge properly denied the defendant insurer’s motion for summary judgment.

In so concluding, we distinguish Lauer v. Dickinson, 299 So.2d 525 (La.App. 4th Cir. 1974), writs denied, 302 So.2d 36 (La.1974), cited by defendant. In the cited case, which involved a rented vehicle driven by a non-lessee, we held that no coverage existed under the rental agency’s policy of insurance because the driver of the automobile did not have permission from the rental agency to drive the vehicle and was not operating it for the lessee’s use. Significantly, in Lauer, the lessee was not a passenger in the vehicle at the time of the accident. In the instant case, however, although the driver did not have the rental agency’s permission to drive the vehicle, he was operating it for the use of the lessee who was a passenger.

We reject further defendant’s contention that the trial judge abused his discretion in extending the time for the taking of depositions of plaintiff’s physicians beyond the date set in the pretrial order. LSA-C.C.P. art. 1551 states that the pretrial order may be modified “to prevent manifest injustice”. We find no merit to defendant’s claim that an orderly disposition of the case was prevented by the extension order. Indeed, we fail to perceive how the extension order, which was issued after trial, prejudiced defendant who certainly was not taken by surprise at the time of the trial. Defendant was represented at the taking of the depositions. No showing is made that defendant requested an extension and was denied. Furthermore, defendant could have availed itself of the extended period for the taking of its own depositions, if it so desired. We find no abuse of the much discretion in extending the date for the taking of the depositions. See Richardson v. DeVille, 204 So.2d 411 (La. App. 3d Cir. 1967); Lawless v. Employers Mutual Fire Insurance Company, 263 So.2d 79 (La.App. 1st Cir. 1972).

We further reject defendant’s claim that the general damage award in the sum of $3,750.00 is excessive. Dr. Wilson T. Couch, plaintiff’s treating physician, testified that plaintiff suffered acute, moderate lumbosacral strain as a result of the accident. He first saw Grady on July 2, 1971, six days after the accident, and found tenderness in the lower lumbar area and pain extending down the left sciatic area. Though neurological and x-ray examinations were negative, the examination for back muscle involvement was positive. Dr. Couch followed plaintiff weekly for the next four weeks. Analgesics for pain and muscle relaxants for inflammation were prescribed. Plaintiff was advised to apply heat to the affected area and bed rest was recommended. Grady was discharged on August 2, 1971.

Because of continued low back pain, plaintiff consulted Dr. John D. Jackson, a neurosurgeon, who examined him on July 21, 1971. He found no neurological abnormality. Again, because of persistent pain in the lower back extending into the right leg, Grady saw Dr. Homer D. Kirgis, also a neurosurgeon, on January 21, 1972. Dr. Kirgis made no objective findings. .

Plaintiff testified that he wore a back brace prescribed by Dr. Couch for three months following the accident. He stated that on August 2, 1972, he continued to have pain and restriction in movement. Plaintiff further stated that he continues to tolerate back pain and limits himself to normal but nonstrenuous activities.

Under the circumstances, we cannot say the $3,750.00 general damage award is excessive.

Finally, we reject defendant’s claim that there is no indication in the judgment how the trial judge arrived at the $463.96 special damage award. A cursory examination of the record and the exhibits reveals that plaintiff sustained medical expenses in the sum of at least $93.25 and the lowest estimate received on damages to the plaintiff’s automobile is the sum of $370.71. When the above medical expenses and the estimate are added, the total is the sum of $463.96.

Having found no error, we affirm the judgment.

AFFIRMED.

      . LSA-R.S. 22:628 provides:
      § 628. Must contain entire contract with certain exceptions
      “No agreement in conflict with, modifying or extending the coverage of any contract of insurance shall be valid unless in writing and made a part of the policy. This Section shall not apply to the following: a) to contracts as provided in Part XV of this Chapter; and, b) to contracts of reinsurance, warranties and/or excess liability insurance which incorporate by specific reference' the limitations and provisions of the primary and/or underlying insurance contracts. In connection with insurance contracts wherein primary and/or underlying coverage are coupled with contracts of reinsurance, warranties and/or excess liability insurance, the contents of all of the related contracts when read together shall constitute the entire insuring agreement.
      “The provisions of this Section shall apply where primary and/or underlying insurance contracts are coupled by specific reference with contracts of reinsurance, warranties and/or excess liability contracts which are in existence as of the effective date hereof.”

      . September 15, 1976 was the deadline set in the pretrial order for the taking of depositions of all physicians. The matter was tried on September 29 and October 1, 1976. The order of the court extending the deadline for the taking of medical testimony to January 30, 1977 was signed on November 22, 1976. Depositions of three physicians were taken on January 6, January 18 and January 19, 1977. Judgment was rendered on February 18, 1977. .


source: Caselaw Access Project

author: LEMMON, Judge.

license: Public Domain

text:
    STATE of Louisiana in the Interest of Ernest BROWN.
    No. 8845.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 14, 1978.

      Alan B. Tusa, Asst. Dist. Atty., for complainant-appellee.
    Galen S. Brown and Richard A. Goins, New Orleans, for respondent-appellant.
    Before LEMMON, STOULIG and GAR-SAUD, JJ.
   LEMMON, Judge.

Ernest Brown, a 14-year old juvenile, has appealed from an adjudication of delinquency under R.S. 13:1570, based on violation of criminal law, after being found guilty of simple burglary. The issues on appeal center around the admissibility of Brown’s confession, the contentions being that (1) he was not informed of his constitutional rights, (2) the pre-interrogation warnings, if given, were not adequate, and (3) he did not understand the waiver of his rights.

I

In the early morning hours of July 30, 1976, Mrs. Maria DiGiovanni was raped and murdered, and her apartment was robbed. Two suspects were apprehended, and in their confessions they stated that certain items taken in the burglary were located at 1674V2 North Claiborne Avenue (which is Brown’s address). After obtaining a search warrant, a police officer searched the apartment at 11:15 p. m. on July 30, recovered several items (including an accordian identified as belonging to the victim), and asked Brown’s mother to accompany him to police headquarters, where he interviewed her. Brown was not at home at the time.

Between 12:30 and 1:00 a. m. on July 31, 1976 Brown was taken by his aunt to headquarters, where Detective Joseph Miceli met with the juvenile and his mother. Miceli testified that he verbally advised the juvenile, in the presence of his mother, of the investigation and of his constitutional rights substantially in accordance with the form prepared by the police department. Miceli further testified that he asked Brown and his mother if they understood; that they stated that they did; that he did not question the juvenile further, nor did he threaten or intimidate him; and that the mother simply told the juvenile to tell the truth.

Miceli then took them to the juvenile bureau, where Detective John Meyer typed a statement, which informed Brown of the investigation and of his constitutional rights, and read the statement to the juvenile in the presence of his mother as follows:

Ernest before I ask you any questions I must inform you of your rights. You are being investigated for being an Accessory in the Murder and Rape of Mrs. Maria DiGiovanni. You have the right to remain silent, that is you do not have to answer any questions that I may ask you. You have the right to have an Attorney. You also have the right to have an attorney present while you are making this statement. However, if you wish to waive your rights you may do so and make the statement of your own free will.
Q. I ask you in the presence of your mother, do you wish to make this statement?
A. Yes.
/s/ Ernest Brown
/s/ Mary Brown
/s/ Pet. John C. Mever

After Brown indicated he wished to make a statement, Meyer typed signature lines for the juvenile, for the mother, and for himself, and then proceeded to ask questions and receive answers, typing each question and answer before proceeding to the next question. When the first typed page was completed, Miceli handed the page to the juvenile and his mother, who signed the waiver portion. Brown also initialed the bottom of that page and of the second page, after it was typed, and both signed again at the end of the three-page statement. In the statement Brown admitted that he watched for police while the other two persons broke into the house to commit a burglary.

II

At the hearing on the motion to suppress the statement Brown and his mother denied that any warnings were given, and they renew that argument on appeal. The mother, whose work at a day care center includes reading stories to children, stated at the hearing that she didn’t read the statement because she didn’t think she was allowed to do so and that also she thought she could not refuse to sign it.

Factual findings relating to the admissibility of a confession should not be disturbed if supported by credible evidence. State v. Cobbs, 350 So.2d 168 (La.1977).

The trial judge held that Brown was informed of his rights, and the record supports that conclusion. Two police officers, found to be credible, testified that the warnings were given, and both the juvenile and his mother signed the waiver indicating willingness to make the statement. The minor inconsistency in testimony (Miceli testifying that he left the room after Brown signed the waiver, but before the questioning was begun, and Meyer testifying that Brown did not sign until several questions and answers had been completed) and the fact that Miceli did not sign as a witness to the waiver are not so significant as to compel a contrary conclusion.

Ill

Brown further contends that if the warnings were given as the officers testified, Miceli’s warnings failed to inform him that he could stop answering questions at any time and Meyer’s warnings, in addition to this deficiency, failed to inform him that any statement could be used against him and that a lawyer would be appointed if he could not afford one. Brown argues that each and every one of these warnings is an absolute prerequisite to interrogation and that omission of one renders the statement inadmissible.

In Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) the court summarized the warnings prerequisite to interrogation as follows:

“To summarize, we hold that when an individual is taken into custody or otherwise deprived of his freedom by the authorities in any significant way and is subjected to questioning, the privilege against self-incrimination is jeopardized. Procedural safeguards must be employed to protect the privilege and unless other fully effective means are adopted to notify the person of his right of silence and to assure that the exercise of the right will be scrupulously honored, the following measures are required. He must be warned prior to any questioning that he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires. Opportunity to exercise these rights must be afforded to him throughout the interrogation. After such warnings have been given, and such opportunity afforded him, the individual may knowingly and intelligently waive these rights and agree to answer questions or make a statement. But unless and until such warnings and waiver are demonstrated by the prosecution at trial, no evidence obtained as a result of interrogation can be used against him.”

The court went on to observe that “(o)nce warnings have been given” and “the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease.” The court did not state that the individual must be warned prior to interrogation of the right to stop answering questions, but merely emphasized that the privilege may be exercised at any time.

Accordingly, we hold that the warnings by Miceli and Meyer fully advised Brown of his constitutional rights.

IV

Brown finally contends that the statement was not voluntarily given.

The privilege against self-incrimination may be claimed in any proceedings, including juvenile proceedings to determine delinquency, which may be the basis for confinement in a state institution. In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967).

Under the totality of circumstances in this case we find that the privilege was knowingly and voluntarily waived.

Although Brown was classified in psychological testing as a functional illiterate, low mentality and illiteracy are not in themselves grounds for ruling a confession involuntary, but are merely factors to be considered in determining the issue. State v. Ross, 320 So.2d 177 (La.1975). Significantly, this juvenile agreed to give a statement while in the presence of his mother. There was no indication that he was not allowed to consult with her before signing the waiver. He was questioned without threat or coercion, for a reasonable length of time, in the presence of his parent. He did not refuse to answer any questions, nor did he attempt at any time to repudiate any answers. The overall evidence supports the conclusion that the statement was voluntarily given.

The judgment is affirmed.

AFFIRMED.

      .The form, introduced into evidence, reads as follows:
      “I am investigating_
      % :}! í|í Sf! Sfc
      “The possibility of your participation in other crimes is also under investigation. According to provisions in the Constitution of the United States and of the State of Louisiana it is my duty to inform you that:
      “I. You need not make any statements; that is, you have a right to remain silent;
      II.Anything you say may be used against you in trial;
      III. You have a right to consult with and obtain the advice of an attorney, before answering any questions;
      IV. If you cannot afford an attorney, the court will obtain an attorney to represent you and advise you;
      V. You have a right to have your attorney or an appointed attorney present at the time of any questioning or giving of any statement.”

      . After the waiver was signed and during the questioning the mother attempted to interject something into the statement, but Meyer instructed her that the statement was her son’s and that she was not to add anything.


author: GULOTTA, Judge.

text:
    Elizabeth CROCKEM v. SCHWEGMANN BROTHERS GIANT SUPERMARKETS, INC.
    No. 8861.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 14, 1978.
    J. Stuart Douglass, New Orleans, for plaintiff-appellee.
    Beard, Blue, Schmitt, Mathes, Koch & Williams, Madison C. Moseley, New Orleans, for defendant-appellant.
    Before GULOTTA, SCHOTT and WICKER, JJ.
   GULOTTA, Judge.

Defendant appeals from a judgment in a slip-and-fall case.

While shopping in the dairy food section of defendant’s Gentilly Store at approximately 4:50 p. m. on a Saturday afternoon, plaintiff slipped and fell on three or four broken eggs located on the floor approximately one foot from a rack containing egg cartons.

It is defendant’s contention, on appeal, that the trial judge erroneously concluded that Schwegmann had not exculpated itself from negligence. According to defendant, the evidence established that the inspection procedure used by Schwegmann was adequate and reasonable, that 20 minutes prior to the accident the area where the fall occurred had been swept by a store employee and that 10 minutes before the incident a security guard had walked through the area looking for debris and spillage on the floor and had not seen any. Under the circumstances, defendant claims the burden of proof required to exculpate itself from negligence has been successfully carried.

In rejecting defendant’s contention on burden of proof, however, the trial judge placed little weight on the testimony of the security guard who stated that he had traversed the area within 10 minutes of the accident and would have seen the broken eggs had they been there. In oral reasons for judgment, the trial judge further observed that the accident occurred at the busiest time on a Saturday afternoon, a busy day; that one of four porterettes who had the primary responsibility of inspecting, sweeping and cleaning up debris and spillage was absent on this busy day; and, finally, that at least 30 minutes could have elapsed, and perhaps longer, between inspections or sweep-ups in a heavily-trafficked, high-spillage area.

The evidence supports the trial court’s conclusions. The area assigned to the por-terette for inspection and sweeping, where the accident occurred, approximated the size of a football field and included, across the back of the store, the seafood, meat and dairy sections. On the day of the accident, because of the absence of one of four por-terettes, this employee had the additional responsibility of inspecting and sweeping the check-out area, located in the front of the store. The porterette testified that she had inspected the area at 4:00 p. m., had commenced sweeping at approximately 4:05 or 4:10 p. m. and had completed the sweeping procedure at 4:30 p. m. The accident occurred at 4:50 p. m. A log introduced into evidence supported the fact that an inspection had been made at 4:00 p. m. and a sweeping had been completed at 4:30 p. m. Though the porterette testified that the entire area had required approximately 20 minutes to clean, she could not remember in which section she had begun sweeping. Because of the large size of the area assigned to the porterette for sweeping and because of her testimony that she did not remember at which part of the area she had commenced cleaning, we cannot say the trial court erred in its conclusion that 30 minutes or longer could have elapsed between the inspection and the accident.

Defendant offered evidence to show that the physical appearance of the broken eggs supports a conclusion that they had not been on the floor for any extended period of time when the accident occurred. The assistant store manager and the porterette who saw the eggs soon after plaintiff slipped were of the opinion that the eggs were freshly broken because they were not covered with a film and no scraping was required to remove them from the floor. This self-serving testimony apparently was not convincing to the trial judge. Our consideration of this testimony does not compel a different conclusion from the result reached below.

The testimony of the security officer on which the court placed little reliance was that he had walked through the dairy section approximately 10 minutes before the incident and had not observed any broken eggs. The witness indicated that at approximately 4:40 p. m., in response to a call asking him to report to the customer service desk at the front of the store, he had walked from the warehouse area, located at the rear of the store, and had traversed the area where the accident occurred. He stated that in the course of walking he was performing a primary job responsibility of observing the floor for spillage and debris, in addition to his duty of detecting shoplifting. According to this witness, had the eggs been located on the floor at that time, he would have seen them. Significantly, however, as recognized by the trial judge, the security officer stated that the call from the front desk could have been necessitated by fighting, shoplifting or any other occurrence. Under the circumstances, we are not impressed with this witness’s testimony that he was primarily concerned with looking for spillage or debris while moving from the rear of the store to the front in answer to the call, possibly emergency in nature, or that he would have seen the broken eggs located approximately one foot from the egg racks in a heavily trafficked section on a busy Saturday afternoon.

Other evidence that defendant had employed 35 porters who also had the responsibility of collecting debris and cleaning up generally (25 of whom were on duty at any given time and 15 of them worked in the parking area) and that 3 other security guards were on duty at the time of the accident added little, if anything, to support defendant’s claim of exculpation from negligence.

The evidence considered, we cannot say the trial judge erred in concluding that defendant failed to carry the burden of proof required to show adequate or reasonable inspection and in concluding further that defendant failed to exculpate itself from negligence. The judgment is affirmed.

AFFIRMED.

      . See Gonzales v. Winn-Dixie Louisiana, Inc., 326 So.2d 486 (La.1976); Calecas v. Great Atlantic and Pacific Tea Company, Inc., 330 So.2d 619 (La.App. 4th Cir. 1976); Payne v. F. W. Woolworth Company, 327 So.2d 647 (La.App. 4th Cir. 1976) for discussion of burden of proof in slip-and-fall cases.


author: BOUTALL, Judge.

text:
    Luther McGEE v. STATE of Louisiana, Through its Agent, BOARD OF COMMISSIONERS, PORT OF NEW ORLEANS.
    No. 8919.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 14, 1978.

      Denis A. Barry, New Orleans, for Luther McGee, appellant.
    Keith W. Petrie, Phelps, Dunbar, Marks, Claverie & Sims, New Orleans, for Board of Commissioners, of the Port of New Orleans, appellee.
    Before REDMANN, BOUTALL and BEER, JJ.
   BOUTALL, Judge.

Luther McGee sued for workmen’s compensation benefits claiming total and permanent disability, and prosecutes this appeal from a judgment awarding partial benefits. His employer, Board of Commissioners, Port of New Orleans, also appeals.

The trial judge found McGee to be only partially disabled and granted him benefits at the rate of $18.59 per week for 175 weeks, subject to a credit of 42 weeks during which McGee worked and received wages in lieu of compensation, and further credit of $650 compensation already paid. Appellant McGee disputes each of these items, contending 1.) that he is totally and permanently disabled; 2.) that no credit should be granted for the 42 weeks for which he was paid wages because he worked in severe pain; and 3.) he should have been granted penalties and attorney’s fees for nonpayment of his claim. The appellant Board of Commissioners contends that the judgment improperly allows benefits for this injury at a time when McGee is receiving maximum benefits due to a second, unrelated injury.

While at work on July 13, 1974, McGee slipped and injured his right knee. His doctor examined the knee and offered some treatment, telling him to stay off the knee for a while, and on July 22, 1974 he returned to work. His knee problem did not resolve however, and he continued treatment with other doctors from October to January 6, 1975, at which time he was hospitalized for surgical repair of a tear of the right medial meniscus. Up to this time, plaintiff had been paid his usual salary by the employer. Beginning January 6, he was paid accident compensation of $65.00 per week to March 17, 1975. He returned to work for his employer from that date until his second injury, an injury to the back unrelated to this, on July 28,1975, and was paid wages up to that time. From July 28 he has received compensation of $65.00 per week for his second injury.

The basic issue to be determined is the extent of the claimant’s injuries. Plaintiff testifies, and the medical records show, that plaintiff continued to experience some difficulty with his right knee, and it was some time before the doctors were able to ascertain with certainty that he was suffering from a cartilage tear in the knee. The extent of McGee’s pain and suffering, and the inability to do his work as a carpenter during this period are in dispute. If McGee’s testimony is to be wholly believed, he has worked with such pain and suffering as to entitle him to compensation benefits above the wages paid. In opposition to this his employer has introduced evidence to show that he worked the same as any of the other workmen during this period, and that his complaints of pain were only occasional. The medical reports show that the treating physicians believed McGee could continue to work adequately with his injuries, but considering their findings of fluid on the knee, etc., it was obvious that he did suffer some pain.

The conclusions of the trial judge are somewhat ambiguous because he found that McGee was only partially disabled during this period, yet at the same time granted the employer credit for wages paid in lieu of compensation. There is ample evidence to support a finding of partial permanent disability to McGee’s leg, R.S. 23:1221 (4h and o) and we agree with the trial judge’s conclusion in that respect, but we cannot agree with the conclusion that McGee received wages in lieu of compensation.

The basic test for determining whether wages are paid in lieu of compensation is whether the wages paid after the injury are actually earned. This is determined by the facts and circumstances of a particular case. Madison v. American Sugar Refining Co., 243 La. 408, 144 So.2d 377 (1962); Francis v. Kaiser Aluminum & Chemical Corp., 225 So.2d 756 (La.App. 4th Cir. 1969); Pender v. National Fire and Marine Insurance Co., 255 So.2d 95 (La.App. 3rd Cir. 1971).

McGee testified that after the first week he returned to work doing his regular duties as a carpenter. Not only was he not put on light work, but he continued to work overtime during most of the period. His testimony is clear that, even though he worked with pain and was forced to change his method of doing some work because of inability to fully bend his knee, he did all of the work that was normally required of him. The employers’ witnesses (one appearing and one stipulated) testified that they worked alongside of McGee and he did his work the same as anyone else. There is no substantial evidence to contradict this and, except for the first week, McGee clearly earned his wages. The facts of partial disability and earned wages apply equally to McGee’s condition after he resumed work following his operation. Accordingly, we hold the trial judge in error in awarding credit to the employer for 42 weeks of wages paid in lieu of compensation and reduce the credit to one week.

The last issue raised by McGee is his prayer for penalties and attorney’s fees for failure to the employer to pay benefits timely. In view of the dispute between them, and considering the ruling of the trial court, we cannot say the payments were unreasonably withheld, and so deny them.

Passing to the employer’s contentions, we note that the employer has been paying maximum benefits for the second accident since July 28,1975 under the provisions of LRS 23:1202 (1973 Amendment). The statute provides for a maximum compensation at the rate of $65.00 per week, and it has been determined that the benefits due plaintiff from more than one accident or injury cannot exceed the provided maximum. See Stansbury v. National Auto & Casualty Insurance Company, 52 So.2d 300 (La.App. 1st Cir. 1951), amended on other grounds 52 So.2d 331; Pender v. National Fire & Marine Insurance Company, 255 So.2d 95 (La.App. 3rd Cir. 1971); Carter v. Tri-State Insurance Company, 259 So.2d 433 (La.App. 2nd Cir. 1972). In this case, both accidents occurred while plaintiff was employed by the same employer and covered by the same insurer. Basically, they are required to pay $65.00 per week maximum and no more. The rule is that the benefits paid are to be prorated between the insurers so as not to exceed the maximum benefits. In this case, since the employer and the insurer are the same, it appears to make little difference, and especially insofar as the employee is concerned. However, we order the judgment amended in accordance with this view.

The Board of Commissioners further contends that the trial court was in error in awarding court costs against it. LRS 13:4521, Dragon v. Orleans Parish School Board, 347 So.2d 306 (La.App. 4th Cir. 1977); Jenkins v. Orleans Parish School Board, 310 So.2d 831 (La.1975). The judgment should be amended in accordance with LRS 13:4521.

For the reasons above expressed, the judgment appealed from is amended to provide that the credit of 42 weeks is reduced to a credit of 1 week only, that the weekly payments due thereunder shall be prorated where applicable with the payments made by the defendants on plaintiff’s second claim, not to exceed $65.00 per week, and the defendant is cast for costs only as provided in LRS 13:4521. As thus amended, the judgment is affirmed.

AMENDED AND AS AMENDED, AFFIRMED.

      . The parties have stipulated that the correct weekly benefit is either the maximum of $65 or $18.59.


text:
    Donald ANDERSEN v. EAGLE ASBESTOS COMPANY and the Commercial Union Assurance Company.
    No. 9094.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 14, 1978.
    Darleen M. Jacobs, New Orleans, for plaintiff-appellee.
    Drury, Lozes & Curry, James H. Drury, New Orleans, for defendants-appellants.
    Before GULOTTA, SCHOTT and WICKER, JJ.
   GULOTTA, Judge.

Defendants, appealing from a judgment awarding workmen’s compensation benefits based on total and permanent disability, claim that the medical evidence indicates plaintiff suffered only a partial permanent disability of the left knee and was able to return to his pre-injury asbestos insulation work. Pointing out that they have paid all of plaintiff’s medical bills, defendants further complain of the judgment awarding past medical expenses incurred and any amount for future medical expenses as they become necessary.

While working on a scaffold when a board broke, plaintiff fell and suffered a work-connected compound comminuted fracture of the left knee cap and tear of a tendon which required surgical repair and a wire insertion. A six-week leg cast was required and 10 weeks of physical therapy was administered. Three orthopedic surgeons estimated the range of disability of the left extremity from 15-30%. The orthopedists were in agreement that flexion of the knee and mobility of movement has been reduced to 90 “, Although the treating orthopedist discharged plaintiff to return to his pre-injury work, all medical experts were in virtual agreement that plaintiffs job, requiring stooping and climbing approximately 50 times per day, would probably result in pain and might be hazardous where climbing is involved. Based on this medical evidence and that of plaintiff, who stated that he had attempted to return to his pre-injury occupation on advice of the treating orthopedist and had been unable to work without experiencing pain, we cannot say the trial judge erred in his determination of total permanent disability.

We further find no error in the judgment which “awarded all medical expenses incurred in the past and an amount of money for future medical payments as they become necessary”. Defendant points out that there are no outstanding medical expenses due; however, there was indication from the medical evidence that further surgical intervention might reduce plaintiff’s disability and increase mobility of the extremity. The settled rule is that a workmen’s compensation claimant is not entitled to an award for future medical expenses, but the right to claim such expenses is always reserved to him, even though defendant’s liability for them arises only when they are incurred. The judgment for past expenses obviously refers to those expenses not paid by defendants, and the award for “future medical payments as they become necessary” merely confirms plaintiff’s right to claim the expenses as they become due. Because defendants are responsible for the payment of medical expenses incurred in connection with work-connected injury, we perceive no prejudice to defendants by the wording of the trial court’s judgment relating to their payment.

The judgment is affirmed.

AFFIRMED.

      . According to the orthopedists, the normal range of motion is from 0-135 ° upward to approximately 160 ° depending on the individual.

      . LSA-R.S. 23:1203; Deshotels v. Fidelity and Casualty Company of New York, 324 So.2d 895 (La.App. 3d Cir. 1975), writ refused, 328 So.2d 376 (La.1976); Manuel v. Jennings Lumber Company, 248 So.2d 908 (La.App. 3d Cir. 1971), writ denied, 259 La. 757, 252 So.2d 454 (1971).


text:
    Patricia Ash Lacour, wife of Gerald LACOUR v. Gerald LACOUR.
    No. 9304.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 14, 1978.

      Harry A. Burglass, Metairie, for appellee.
    Floyd J. Reed, Metairie, for appellant.
    Before LEMMON, BOUTALL and WICKER, JJ.
   JUDGMENT ON MOTION TO DECLARE SUSPENSIVE APPEAL NULL AND VOID.

Petitioner, Patricia Ash Lacour, seeks to prohibit her husband from taking a suspen-sive appeal from a judgment accumulating back alimony and making the amount exec-utory. She asserts that our decision in the case of Elchinger v. Elchinger, 181 So.2d 297 (La.App. 4th Cir. 1965), Writ Refused, 248 La. 1098, 184 So.2d 23, is contrary to the language and purpose of Code of Civil Procedure Articles 3943 and 3945.

In the case of Malone v. Malone, 282 So.2d 119 (La.1973) the Supreme Court interpreted the purpose of C.C.P. Article 3943 as follows:

“[2] The main purpose of Article 3943, which has no counterpart in the Code of Practice, is to codify the jurisprudential rule denying a suspensive appeal in custody cases and to provide a wife necessary support pending appeal, by legislatively overruling jurisprudence which held that suspensive appeals could be taken from judgments awarding alimony. C.C.P. 3943, Official Revision Comments. How.ever, the' wording of the article is unfortunate: ‘judgment awarding,’ which appears in the first sentence of the article, appears to demand a restricted application of Article 3943, but ‘judgment relates to,’ which appears in the second sentence of the article, seems to indicate a broader application of the article.
“[3] Therefore, we hold that appeals from judgments awarding, denying, modifying or terminating alimony or custody are governed by the provisions of C.C.P. 3943.”

Although the decision in that case has broadened the application of Article 3943 to several instances not previously believed applicable, it makes no mention of including the Article 3945 proceeding for determination of alimony in arrears and making that amount executory. In view of the court’s ability to punish a non-paying husband for contempt of court for failure to pay timely, we cannot see the necessity for extending the Article 3943 rule to include Article 3945. Our courts have been consistent in so ruling, and we reaffirm our decision in Elchinger, supra. See Mertens v. Mertens, 308 So.2d 506 (La.App. 3rd Cir. 1975), Writ Refused, La., 313 So.2d 240; Picinich v. Picinich, 271 So.2d 670 (La.App. 1st Cir. 1972); Granger v. Granger, 193 So.2d 898 (La.App. 3rd Cir. 1967).

The motion to dismiss the suspensive appeal is denied.


author: CULPEPPER, Judge.

text:
    Louis G. VILLAUME, Plaintiff-Appellee, v. Christine R. VILLAUME, Defendant-Appellant. Christine R. MAHAR, Plaintiff-Appellant, v. Louis G. VILLAUME, Defendant-Appellee.
    Nos. 6516 and 6517.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 17, 1978.
    Writ Granted March 31, 1978.

      Raggio, Farrar, Cappel & Chozen by Stephen A. Berniard, Jr., Lake Charles, Louis C. Green, St. Louis, for defendant-appellant.
    McHale & Bufkin by Louis D. Bufkin, Lake Charles, for plaintiff-appellee.
    Before CULPEPPER, DOMENGEAUX and FORET, JJ.
   CULPEPPER, Judge.

MOTION TO DISMISS

Appellee, Louis G. Villaume, moves to dismiss the appeal of appellant, Christine R. Mahar, in the above consolidated cases. The motion is opposed.

We dismiss the appeal of Christine R. Mahar.

On December 20, 1976, Louis G. Villaume filed suit seeking the permanent care, custody and control of the two minor children of his former marriage to Christine R. Vill-aume.

On January 3, 1977, Christine R. Mahar (formerly Christine R. Villaume), filed a petition seeking recognition of a judgment by the Circuit Court of the County of St. Louis, State of Missouri, rendered October 22, 1976, awarding Christine R. Mahar the permanent care, custody and control of the children.

The two suits were consolidated by the court for purpose of trial, and the trial on the merits was had on June 8, 1977. Written reasons rejecting the demands of Christine R. Mahar in both suits were rendered by Judge L. E. Hawsey, Jr., on July 11, 1977. Accordingly, the permanent care, custody and control of the two minor children were awarded to Louis G. Villaume.

On August 2, 1977, a consolidated final judgment was signed by the trial judge, and since the matter was taken under advisement upon conclusion of the trial, notice of the signing was mailed on August 3, 1977. Christine R. Mahar timely applied for a new trial, and the application for a new trial was denied orally in open court on August 15, 1977. Counsel for both parties were present.

Subsequent to the denial of the new trial, an error in the wording of the final judgment signed on August 2, 1977 was discovered, and on “Joint Motion” of counsel for both parties, the judgment was amended. The amended judgment was signed on August 29, 1977. Notice of the signing of the amended judgment was sent on August 30, 1977.

On October 11,1977, a petition and order for appeal in both causes were presented to the trial judge for signature. The trial judge refused to sign the order on the grounds that the delays for taking an appeal in both suits had expired.

On October 28, 1977, we denied Christine R. Mahar’s application for supervisory writs. Subsequently, writs were taken to the Louisiana Supreme Court. On November 14, 1977, 351 So.2d 1210, that court issued the following order:

“Writ granted. District Court ordered to grant appeal in this case.”

Pursuant to this order, Judge L. E. Haw-sey signed an appeal order on November 15, 1977.

LSA-C.C.P. arts. 3942 and 3943 establish that an “appeal from a judgment awarding custody of a person” can only be taken within thirty days from the applicable date provided in LSA-C.C.P. art. 2087(l)-{3).

Since no written request for notice of the judgment refusing a new trial was filed, under LSA-C.C.P. art. 2087(2), the appeal must be taken within 30 days after the court’s refusal to grant a timely application for a new trial. Thus, the appeal must have been perfected within 30 days after August 15, 1977. Since appellant did not perfect her appeal until October 11, 1977, it is untimely.

Appellant argues that because the judgment was amended the delays begin to “run again” from the date notice was sent of the signing of the amended judgment.

We disagree. In accordance with LSA-C.C.P. art. 1951, the amendment merely corrected the phraseology of the final judgment so as to accurately reflect the written reasons of the trial judge which provided that the visitation rights of Christine R. Mahar shall be “every other month” instead of “each and every month” as was erroneously stated in the judgment prepared by counsel and signed on August 2, 1977. The time delay for taking an appeal from a final judgment is not affected by a judgment amended in accordance with LSA-C. C.P. art. 1951. Miciotto v. Cox, 335 So.2d 798 (La.App. 2 Cir. 1976). However, even if we assumed, for the sake of argument, that the amended judgment effected a “change in substance,” the appeal would still be untimely for the reason that a trial court cannot modify its previous judgment as to substance unless it grants a limited or unlimited new trial. Rachal v. United States Fidelity and Guaranty Company, 286 So.2d 147 (La.App. 3 Cir. 1973). Under this analysis, since the motion for a new trial was denied, the original judgment would be the only judgment from which an appeal could be taken.

Alternatively, appellant argues that her appeal from the judgment denying recognition of the Missouri judgment awarding her custody is still timely.

The argument is without efficacy. We are of the opinion that a Louisiana judgment denying recognition of of an out of state custody award is, in effect, a Louisiana judgment denying custody. In Malone v. Malone, 265 So.2d 255 and 258 (La. App. 1 Cir. 1972), affirmed at 282 So.2d 119 (La.1973), our Supreme Court, in affirming a judgment of the First Circuit Court of Appeal, stated:

“Therefore, we hold that appeals from judgments awarding, denying, modifying or terminating alimony or custody are governed by the provisions of C.C.P. 3943.”

Thus, under C.C.P. art. 3943, the appeal from the judgment denying recognition of the Missouri custody award is also untimely. In view of our decision, we need not consider appellee’s alternative request to remand this matter to receive evidence of a decision rendered by the Missouri Court of Appeal reversing the Missouri trial court judgment sought to be recognized by appellant.

For the reasons assigned, the appeal of Christine R. Mahar in the above consolidated suits is dismissed at her cost.

APPEAL DISMISSED.


author: DOMENGEAUX, Judge. GUIDRY, Judge,

text:
    STATE of Louisiana, Through the DEPARTMENT OF HIGHWAYS, Plaintiff-Appellant, v. Clyde TATE, Defendant-Appellee.
    No. 6339.
    Court of Appeal of Louisiana, Third Circuit.
    March 7, 1978.

      D. Ross Banister, Chester E. Martin, Jesse S. Moore, Jr., Edwin R. Woodman, Jr., Alva J. Jones, Johnie E. Branch, Jr. by Johnie E. Branch, Jr., Baton Rouge, for plaintiff-appellant.
    Eric R. Harrington, Sam J. Friedman, Natchitoches, for defendant-appellee.
    Before DOMENGEAUX, WATSON and GUIDRY, JJ.
   DOMENGEAUX, Judge.

This is a “quick taking” expropriation under the provisions of La.R.S. 48:441-460. The plaintiff acquired, for highway purposes, full ownership, subject to a perpetual mineral reservation, of the rear .156 acres of a .394 acre, vacant and unimproved, lot of ground owned by defendant. The taking occurred on April 3,1972, the date on which the order of expropriation and document evidencing receipt of the estimated just compensation was signed.

At the time of the taking, appellee owned a .394 acre rectangular lot of land which fronted on Old Spanish Lake Road. Appel-lee’s lot measured 66 feet front on the aforesaid road by a depth between parallel lines of 266 feet. Following the taking plaintiff was left with a lot fronting Old Spanish Lake Road which measures 66 feet front and rear by an average depth of 180 feet, more or less.

At the time of taking plaintiff deposited the sum of $143.00 as estimated just compensation for the property taken. Defendant answered asserting that the true value of the property taken was $466.00 and claimed severance damages in the amount of $1,395.87.

Following trial the district court rendered judgment awarding defendant-appellee the sum of $921.87, less a credit of $143.00, with interest from March 28, 1972. The judgment also fixed the fees of defendant’s expert witnesses, Messrs. Stephens and La-Caze, at $450.00 and $250.00, respectively, and ordered these sums taxed as costs to be paid by plaintiff. The trial court’s written reasons reflect that the amount awarded is broken down as follows:

Value of land taken.$ 400.00
Severance damage to remainder.$ 445.87
-Barbed wire fencing .$ 76.0Q
Total.$ 921.87

Plaintiff appeals and urges error on the part of the trial court in the following particulars: (1) in awarding interest from March 28, 1972, rather than from the date of taking, i. e., April 3, 1972; (2) in awarding an excessive amount for the property taken; (3) in awarding severance damages; and, (4) in fixing the expert witness fees at exorbitant amounts. We find merit only in appellant’s contentions concerning numbers (1) and (2).

In a suit for expropriation under authority of LSA-R.S. 48:441 et seq., title vests in the condemner upon the deposit of the amount of estimated just compensation in the registry of court and the execution of the receipt therefor by the clerk of court. LSA-R.S. 48:445. The condemnee is entitled to interest on the amount finally awarded, over and above that deposited, as of the date title vests in the condemnor to the date of payment. LSA-R.S. 48:455. In the instant case the record reflects that the amount deposited by plaintiff was receipted for by the clerk of court on April 3, 1972, therefore the trial court judgment is in error insofar as it awards interest from an earlier date.

We next consider appellant’s contentions that the award made for the property taken is excessive and that the defendant’s remainder suffered no severance damage.

The record reflects that defendant acquired the parent lot of ground one year prior to the institution of this proceeding for the sum of $350.00. Defendant testified that the transaction was not an “arms length” transaction. Plaintiff disputes this. Prior to the taking defendant used this vacant property to store old, unused machinery and as an open air repair site for heavy equipment.

Four experts expressed opinions as to the value of the property taken and as to whether or not the remainder sustained severance damages. Messrs. T. J. Stephens and Sam LaCaze, Jr. appeared on behalf of defendant, the former testified and the latter’s report was received by stipulation. Messrs. James L. Dousay and Frank John Greco testified on behalf of plaintiff.

Defendant’s expert, Mr. Stephens, expressed the opinion that the property had a unit value of $2,500.00 per acre and reasoned that the lot had a value before the taking of $1,000.00. He opined that the property taken, .156 acres had a value of $390.00 based on the unit value of $2,500.00 per acre. Mr. Stephens further testified that the property remaining to defendant after the taking suffered severance damage in the amount of $445.87. He concluded that the .2378 acre remainder was rendered useless because the owner no longer had sufficient space to store machinery and conduct maintenance operations as he had done before. Using a depreciation figure of 75% he calculated severance damages at $445.87.

Although Mr. LaCaze did not testify, his report, which mirrors that of Mr. Stephens, was received in evidence by stipulation.

Mr. Dousay opined that the property had a unit value of $900.00 per acre; the value of the part taken was $140.00; and, the remainder suffered no severance damage. Mr. Greco, plaintiff’s other appraiser, concluded that the property had a unit value of $942.00 per acre; the value of the part taken was $147.00; and, the remainder suffered no severance damage.

All of the experts who testified utilized comparable sales in arriving at an opinion regarding the unit value of the .394 acre tract. The trial court accepted the opinion of defendant’s experts on unit value and awarded defendant the sum of $400.00 as the value of the land taken.

We find no error in the trial court’s award for the .156 acre taken, except insofar as said award exceeds the highest estimate of value placed by any of the experts on such parcel. State, Through Department of Highways v. Romano, 343 So.2d 222 (La.App. 1st Cir. 1977). The highest estimate of unit value for the subject tract was $2,500.00 per acre. Using this figure the part taken has a value of $390.00 (.156 X 2500.00 = $390.00). The trial court’s award exceeds that amount by $10.00 and must be reduced to that extent. State, Department of Highways v. Thurman, 231 So.2d 692 (La.App. 1st Cir. 1970) and State, Department of Highways v. Eubanks, 345 So.2d 533 (La.App. 3rd Cir. 1977).

Concerning severance damages, it was the opinion of the experts who appeared for the defendant that the remaining property had been diminished in value to the extent of 75% because there remained insufficient area to fully allow the landowner to operate his previous business as a storage place for unused machinery and a repair site for heavy equipment.

In his reasons the trial judge specifically accepted the opinion of the expert Stephens on the severance damage question, and concluded that the taking interfered with the potential development of the land and its reasonable prospective use.

Although the plaintiff questions Mr. Stephens’ approach on the question of severance damages, a reasonable interpretation of his testimony satisfies us that his conclusion concerning severance damages results from a “before and after approach”.

Bearing in mind that the property is quite narrow, we find it reasonable to conclude that the part taken affects its after value. Although the landowner continued his operations after the taking, there is evidence (which the trial judge obviously believed), which indicates that defendant is hampered in his business. Overall, we cannot say that the trial judge was in error in concluding, from the evidence, that the taking herein caused a reduction in the value of the defendant’s remaining property.

Finally, appellant contends that the fees allowed the two experts retained by defendant are excessive. As afore-stated, the trial court allowed Mr. Stephens a fee of $450.00 and Mr. LaCaze a fee of $250.00. We have considered the amount of expert fees awarded and conclude that those amounts do not constitute a manifest abuse of the trial court’s discretion in fixing such fees. The fixing of expert witness fees rests mainly within the sound discretion of the trial court. State, Department of Highways v. Smith, 272 So.2d 746 (La. App. 3rd Cir. 1972), writ denied, La., 272 So.2d 696.

For the above and foregoing reasons, the judgment appealed from is amended in the following respect: The judgment in favor of defendant and against plaintiff is reduced from $921.87 to the sum of $911.87, less the amount deposited by plaintiff in the registry of the court, with legal interest on the balance due from April 3, 1972, until paid, and all costs of these proceedings. Except as herein amended, the judgment appealed from is affirmed. All costs of these proceedings in the trial court and on appeal, are assessed to plaintiff-appellant.

AMENDED AND AFFIRMED.

GUIDRY, J., dissents in part and assigns written reasons.

GUIDRY, Judge,

dissenting in part.

I dissent from only that part of the majority opinion which affirms the trial court’s award of severance damages.

I would find manifest error in the trial court’s determination that defendant’s remaining property suffered severance damages.

The burden of proof to establish severance damages rests with the landowner. Such damages must be established by competent proof and are never allowed if based on speculation or conjecture. Defendant’s experts opined that his remaining property had been diminished in value to the extent of 75% because he “does not now have enough room for his operation”. As a general rule, the measure of severance damages is the difference between the market value of the remaining property before and after the expropriation. In State, Department of Highways v. Wolfe, 252 So.2d 483, 486 (La.App. 3rd Cir. 1971) we stated:

“In determining market value, any peculiar value which the property has to the present owner by virtue of his occupation, the use which he is presently making of the property or the plans which he has for the' property in the future are not considered.”

There is absolutely no evidence in the record whatever which would reflect that defendant’s remaining .2378 acre tract was diminished in value as a result of the taking. Accordingly, in my opinion, it was error for the trial court to award severance damages solely on the basis of Messrs. Stephens and LaCaze unsupported expression of opinion. Louisiana Power & Light Company v. Pipes, 188 So.2d 639 (La.App. 2nd Cir. 1966) and State, Department of Highways v. Christy, 283 So.2d 533 (La.App. 1st Cir. 1973). Accordingly, I would amend the judgment appealed from so as to delete the award of severance damages. For the above reasons I respectfully dissent in part.

      . Plaintiff concedes that the judgment correctly awards defendant this sum for fencing.

      . Although Messrs. Stephens and LaCaze suggest that defendant had not sufficient space for his storage and maintenance operations following the taking, the record clearly reflects that defendant’s operations continued on the subject tract without any lessening in degree up until the time of trial some five years later.


author: CUTRER, Judge.

text:
    Marion Elizabeth Dutile VIATOR, Plaintiff-Relator, v. Robert I. SONNIER et al., Defendants-Respondents.
    No. 6571.
    Court of Appeal of Louisiana, Third Circuit.
    March 7, 1978.
    Herman C. Clause, Lafayette, for plaintiff-relator.
    Jacob D. Landry, New Iberia, Roy & Forrest, Leon E. Roy, Jr., New Iberia, Voorhies & Labbe, Patrick A. Juneau, Jr., Lafayette, for defendants-respondents.
    Before GUIDRY, FORET and CUTRER, JJ.
   CUTRER, Judge.

Plaintiff-relator (hereafter relator) filed this action for personal injuries and property damage on December 11, 1975, alleging that Marion Viator was injured in an automobile accident on December 13, 1974. On February 17, 1978, defendants-respondents (hereafter respondents) filed a motion entitled “Motion for Discovery, Physical Examination and Photographing.” This motion alleged the following: that after the accident, relator was examined by several doctors with the indications being that relator had sustained some type of cervical strain; that relator’s treating physician, Dr. Steven Snatic, performed two myelograms which were both negative for disc pathology; that on or about February 10, 1978, relator saw a neurologist in Houston, Texas, who advised relator to undergo an operation for injuries sustained in the accident; that the Houston neurologist, Dr. John McCutchen, recommended surgery possibly consisting of a two or three level fusion of the cervical spine or a thoracic outlet syndrome operation or possibly both; and that respondents were informed by relator on or about February 14, 1978 that the surgery was scheduled for February 23, 1978.

A contradictory hearing was conducted on the merits of respondents’ discovery motion. On February 19, 1978, the trial court rendered judgment granting respondents’ motion. Relator applied to this court for a writ of certiorari and a stay order. We granted the writ of certiorari to consider the validity of the discovery allowed by the trial court. A stay order was refused.

Relator complains of the contents of the trial court’s judgment granting respondents’ discovery motion. Specifically, relator argues that the trial court abused its great discretion in discovery matters by:

(1) Ordering an examination of the relator by three separate physicians;
(2) Ordering the respondents be allowed to have observers at any surgery performed on relator equal in number and specialization to physicians performing any operation;
(3) Authorizing the filming and/or photographing of any operation to be performed on relator in relation to this case;
(4) Ordering that the surgery be postponed for two weeks;
(5) Stating that the sanction for default of this judgment would be that evidence of the surgery or surgeries to be performed would not be admitted into evidence;
(6) Ordering the relator to give respondents written notice at least 10 days prior to any operation to be performed on the relator.

Relator first complains that under the provisions of LSA-C.C.P. art. 1464, the trial judge erred by ordering an examination of the relator by three separate physicians rather than by one physician. After a hearing, the trial court ordered that the relator submit to three medical examinations. Relator was ordered to submit to a physical examination by a neurosurgeon, a vascular and thoracic surgeon, and by relator’s own treating physician. The trial judge scheduled the examinations over the course of one day. All of the three physicians resided in Lafayette which was in close proximity to relator’s residence in New Iberia. The judge amply stated the scope of the examinations.

LSA-C.C.P. art. 1464 provides:

“When the mental or physical condition of a party, or of a person in the custody or under the legal control of a party, is in controversy, the court in which the action is pending may order the party to submit to a physical or mental examination by a physician or to produce for examination the person in his custody or legal control, except as provided by law. The order may be made only on motion for good cause shown and upon notice to the person to be examined and to all parties and shall specify the time, place, manner, conditions, and scope of the examination and the person or persons by whom it is to be made.”

We find no Louisiana cases that have addressed the issue of whether Article 1464 allows a plaintiff to be examined by three physicians instead of by one physician. Relator argues that the first sentence of the article clearly provides that the party may be ordered to submit to “a physical or mental examination by a physician . . However, the second sentence of the article states that the trial court’s order shall specify “the person or persons” by whom the physical or mental examinations will be conducted. The Federal Rule of Civil Procedure 35(a) is analogous to our Article 1464. The federal jurisprudence and commentators interpret that Rule to mean that the trial court is allowed to order examinations by more than one physician as long as each doctor’s examination is justified by the circumstances of the case. Marshall v. Peters, 31 F.R.D. 238 (S.D.Ohio 1962); Little v. Howey, 32 F.R.D. 322 (W.D.Mo.1963); Wright & Miller, Federal Practice and Procedure: Civil 2234 (at pp. 676-677). In the case at hand, we feel that an examination by each of the three doctors named by the trial court was justified since the additional medical information has been shown to be necessary for the respondents to defend in this case. We hold that the trial judge has the authority to order examinations by the three physicians.

The next contentions of relator are that the trial court abused its great discretion accorded in discovery matters by ordering the respondents be allowed observers to be present in any operation to be performed on relator, and by further authorizing the filming and/or photographing of any such operation. The ruling of the trial court stated:

“(4) Defendants be allowed to have observers at any surgery to be performed on Marion Viator having any alleged reference to this matter, the number of said observers to be equal to and the specialization of said observers to be the same as those physicians in attendance to Marion Viator at each surgery and said observers shall be allowed to view closely each aspect of each surgery; but are in no way to interfere with the same.
“(5) Defendants are hereby authorized and allowed to film and obtain photographs of any operation to be performed on Marion Viator having any alleged reference to this case; but are in no way to interfere with the same.”

Again, we find no Louisiana cases nor has able counsel referred the Court to any jurisprudence dealing with this type of discovery. This method of discovery is not contemplated under Article 1464. Furthermore, these discovery methods are not authorized by any provision of the new Louisiana articles on discovery (LSA-C.C.P. Articles 1421-1474). While recognizing that statutes relating to discovery should be liberally construed in favor of discovery where possible, Chesson v. Hungerford, 228 So.2d 332 (La.App. 3 Cir. 1969), we conclude that the trial court had no discretion to order observers and the filming or photographing of any operation to be performed upon relator relative to this case. Other discovery methods exist to determine the details and findings of an operation.

Relator contends the trial judge further erred by ordering relator to postpone the operation for two weeks or face certain consequences. Again, we feel that the trial judge abused his much discretion by seeking to postpone an operation or at least achieve that effect by placing sanctions on same if he did not comply. Dr. McCutchen recommended that surgery be performed. The discovery articles do not authorize the court to interfere with the medical decision of when surgery should be performed. Under these circumstances, we do not feel that it was within the discretion of the trial judge to issue an order that could affect the time at which surgery should be performed.

The next assignment of error urged by relator is that the trial judge erred by incorporating the sanctions contained in LSA-C.C.P. art. 1471 in his discovery order. The trial judge stated that failure to comply with his order would result in the exclusion of any evidence of the surgery or surgeries to be performed on relator at the trial of the case. Article 1471 provides as follows:

“If a party or an officer, director, or managing agent of a party or a person designated under Articles 1442 or 1448 to testify on behalf of a party fails to obey an order to provide or permit discovery, including an order made under Article 1469 or Article 1464, the court in which the action is pending may make such orders in regard to the failure as are just, and among others the following:
“(1) An order that the matters regarding which the order was made or any other designated facts shall be taken to be established for the purposes of the action in accordance with the claim of the party obtaining the order.
“(2) An order refusing to allow the disobedient party to support or oppose designated claims or defenses, or prohibiting him from introducing designated matters in evidence.
“(3) An order striking out pleadings or parts thereof, or staying further proceeds ings until the order is obeyed, or dismissing the action or proceeding or any part thereof, or rendering a judgment by default against the disobedient party.
“(4) In lieu of any of the foregoing orders or in addition thereto, an order treating as a contempt of court the failure to obey any orders except an order to submit to a physical or mental examination.
“(5) Where a party has failed to comply with an order under Article 1464, requiring him to produce another for examination, such orders as are listed in Paragraphs (1), (2), and (3) of this Article, unless the party failing to comply shows that he is unable to produce such person for examination.
“In lieu of any of the foregoing orders or in addition thereto, the court shall require the party failing to obey the order or the attorney advising him or both to pay the reasonable expenses, including attorney’s fees, caused by the failure, unless the court finds that the failure was substantially justified or that other circumstances make an award of expenses unjust.” (Emphasis supplied)

The above article provides various sanctions that may be imposed by the trial judge for the failure to obey a discovery order. These sanctions should not be incorporated in the order. These sanctions are discretionary and may be imposed by the court if the order is disobeyed without justification. It is to be noted that in paragraph (5) the court may impose the sanctions of paragraphs (1), (2), and/or (3) for failure to report for examinations, “unless the party failing to comply shows that he is unable to produce such person for examination”. By incorporating the sanction in the order, as was done herein, the party who fails to report for examination is denied the right to explain such failure. In this case, the trial judge should not have included the sanction in the discovery order as it deprived the relator of the right to explain the failure to report for examination.

Relator’s last assignment of error concerns that portion of the order requiring relator to give a 10-day written notice to respondents of any operations to be performed on relator having any reference to this case. The objection lies because the purpose of the notice would be to allow respondents time to engage observers to be present during the operation as well as film or photograph the surgery. Since we have resolved the issue of observing and photographing surgery in favor of relator, the purpose of the 10-day notice becomes moot.

For the reasons assigned, the writ previously granted is recalled as to Paragraph 2 of the trial court’s order and made peremptory as to all other sub-paragraphs. Accordingly,

IT IS ORDERED, ADJUDGED AND DECREED that relator, Marion Elizabeth Dutile Viator, submit to medical examinations by Dr. Ricardo Leoni, neurosurgeon, Dr. Steven J. Snatic, neurologist, and Dr. F. H. Davis, Jr., vascular and thoracic surgeon, within the named physicians’ specialties having reference to her complaints relating to the accident in question, within a reasonable time following the finality of this judgment and at such times and places as designated by the trial court upon remand of this matter.

IT IS FURTHER ORDERED that the judgment of the trial court dated February 19, 1978, as to all sub-paragraphs excepting sub-paragraph 2 is reversed and set aside, and this matter is remanded to the trial court for further proceedings in accordance with the views expressed herein. All costs occasioned by this writ application are to be borne by respondent.

WRIT RECALLED IN PART: WRIT MADE PEREMPTORY IN PART AND REMANDED.

      . Louisiana courts interpreting Louisiana discovery provisions can rely on federal jurisprudence under analagous federal provisions as persuasive authority on discovery questions. Ogea v. Jacobs, 344 So.2d 953 (La.1977).

      . This does not imply that we disagree with the right of a trial judge to order that notice be given of a pending operation.


text:
    Mittie A. C. Rushing THREATT v. Johnny Roy RUSHING et al.
    No. 50009.
    Supreme Court of Mississippi.
    Feb. 22, 1978.
    Rehearing Denied March 22, 1978.
    Adams & Odom, Joe R. Odom, Walter T. Rogers, Meridian, for appellant.
    Goldman & Goldman, Thomas L. Goldman, Meridian, for appellee.
    Before PATTERSON, C. J., and BROOM and BOWLING, JJ.
   Affirmed.


text:
    MISSISSIPPI STATE HIGHWAY COMMISSION v. Omar D. CRAIG.
    No. 50109.
    Supreme Court of Mississippi.
    Feb. 22, 1978.
    Rehearing Denied March 22, 1978.
    Dwight N. Ball, Oxford, for appellant.
    Barrett J. Clisby, Omar D. Craig, William K. Duke, Oxford, for appellee.
    Before PATTERSON, C. J., and BROOM and BOWLING, JJ.
   Affirmed.


author: LEE, Justice, for the Court:

text:
    Ulysses GANDY v. STATE of Mississippi.
    No. 50288.
    Supreme Court of Mississippi.
    March 1, 1978.

      Walker & Turner, Randolph Walker, West Point, for appellant.
    A. P. Summer, Atty. Gen. by Billy L. Gore, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before SMITH, ROBERTSON and LEE, JJ.
   LEE, Justice, for the Court:

Ulysses Gandy appeals from a conviction of manslaughter by culpable negligence and sentence of ten (10) years by the Circuit Court of Oktibbeha County. He assigns the following errors in the trial below:

(1) The court erred in overruling appellant’s request for peremptory instruction and motion for new trial on the ground that the verdict was contrary to the overwhelming weight of the evidence.

(2) The court erred in overruling appellant’s motion for mistrial because of a prejudicial statement made by the district attorney.

(3) The court erred in refusing defendant’s requested Instruction No. D-18.

(4) The court erred in refusing defendant’s requested Instruction No. D-15.

(5) The court erred in admitting in evidence the State’s Exhibit No. 2.

On June 26, 1976, at approximately 10:30 p. m., appellant (age 29) was involved in a two-car collision on Mississippi State Highway 25 about four (4) miles south of Stark-ville. The highway runs in a north-south direction, appellant was driving his Pontiac automobile south on said highway, and Daniel Palmer, accompanied by two female companions, was driving a Toyota automobile north. The vehicles collided head-on. Palmer and the passengers in his car, all students at Mississippi State University, were killed. Appellant was not seriously injured. There were no witnesses to the collision except appellant.

About 1:15 p. m. on said date appellant drank one-fourth (!4) pint of vodka. Later in the afternoon and evening he drank beer. Witnesses at the scene of the collision testified that they detected the odor of alcohol in the Pontiac automobile and on appellant, and that he was intoxicated. A blood sample was taken from appellant and a test of same at the Mississippi State Crime Laboratory indicated that it contained .246 ethyl alcohol by weight which by law is presumptive of intoxication. [Mississippi Code Annotated § 63-11-39 (1972)]. The attending physician for appellant and at least one other witness testified that they did not smell the odor of alcohol on appellant and, in their opinions, he was not intoxicated.

Six (6) persons, including three (3) officers who arrived at the scene, testified that both vehicles were in the northbound lane of the highway approximately seven (7) to eight (8) feet apart, that the Pontiac was headed south in the northbound lane, that the Toyota was headed north in the northbound lane, and that debris, glass and mud were in the northbound lane. Jerry Devine, the first witness to arrive at the scene of the collision, testified that the Toyota was in the northbound lane headed north and that the Pontiac was in the southbound lane headed south with the left wheels about the center line of the highway. The Pontiac was moved before photographs were taken.

Appellant testified that he was driving south in the southbound lane and the Toyota suddenly came over into the southbound lane and collided with his automobile.

I.

Did the court err in refusing appellant’s request for a peremptory instruction, ánd, in the alternative, was the verdict of the jury contrary to the overwhelming weight of the evidence?

Appellant contends that his conviction is based upon (1) the apparent intoxication of appellant, (2) the accident apparently occurred in the deceased’s lane of travel, and (3) the appellant did not have a valid driver’s license at the time of the collision. He argues that there is no proof in the record that the alleged intoxication of appellant had any causal connection to the collision. He relies upon Cutshall v. State, 191 Miss. 764, 4 So.2d 289 (1941). However, the State’s proof indicated that the collision occurred head-on between the vehicles in the northbound lane, which was the opposite lane of travel for appellant. The jury accepted that version of the ease, and could reasonably believe that appellant’s vehicle traveled south in the northbound lane as a result of his intoxication.

In passing upon the request for a peremptory instruction, all evidence favorable to the State must be assumed as true, together with reasonable inferences that may be drawn from same, and, if there is enough in the record to support a verdict, the request for peremptory instruction should be overruled. Warn v. State, 349 So.2d 1055 (Miss.1977). Applying this rule, we are of the opinion that the evidence for the State is sufficient to support a verdict of guilty. Likewise, the verdict is not against the overwhelming weight of the evidence.

II.

Did the court err in overruling appellant’s motion for mistrial because of a prejudicial statement made by the district attorney in his argument?

During his closing argument, the district attorney made the following statement:

“Culpable negligence is conduct which exhibits or manifests a wanton or reckless disregard for the safety of human lives and the conduct of the defendant Ulysses S. Gandy did disregard human life because three people were killed. And we are here today only concerned with young Daniel Palmer. Three people were killed and certainly that is disregard for the safety — ”

Appellant contends the statement by the district attorney that “three people were killed” in the collision constituted error, since appellant was being tried only for the death of Daniel Palmer. The testimony indicated that all three individuals in the Toyota were killed, and the same was properly admitted as a part of the res gestae. While the district attorney should not have alluded to the fact that all three persons were killed, the jury was certainly aware of their deaths and it is difficult to see how the jury could have been prejudiced by such statement. Ford v. State, 226 So. 378 (Miss. 1969). Consequently, there is no merit in this assignment.

III.

Did the court err in refusing appellant’s requested Instruction D-18?

Instruction D-18 [Appendix I] told the jury that there are several factors which could be considered in determining whether or not defendant was intoxicated at the time of the accident, and then four such were specifically enumerated. The instruction was properly refused, since it was restrictive of other elements which the jury could consider in determining whether or not appellant was intoxicated. Further, the instruction had the effect of telling the jury to disregard testimony of certain witnesses and amounted to a comment on the evidence. Kearney v. State, 68 Miss. 233, 8 So. 292 (1890).

IV.

Did the court err in refusing appellant’s requested Instruction D-15?

All instructions requested by the State and the defendant on culpable negligence related to abstract principles of law, except Instruction D-15 [Appendix II]. Appellant defended on the theory that he was driving his automobile south in the south lane of Highway 25 and that the Toyota suddenly came across the center line into the south lane and collided with his vehicle. Jerry Devine testified for appellant that he was the second person to arrive at the scene, and that the Pontiac was in the southbound lane with its left wheels on the center line. Instruction D-15 was the only instruction requested by appellant which submitted this theory of the case and his defense to the jury. The State argues the instruction was properly refused because it told the jury that, if they believed the deceased crossed the center line, he should be found not guilty, and that the Palmer vehicle may have been taking evasive action and may have crossed the center line for that reason. However, the instruction states, “crossed the center line and hit the defendant’s car thereby causing the injuries sustained in this accident,- . . . ”

There is no proof in the record, either from the testimony or the physical facts, that any evasive action was taken by either vehicle. Failure to grant the Instruction D-15 constitutes reversible error.

V.

Did the trial court err in admitting into evidence State’s Exhibit No. 2?

The State’s Exhibit No. 2 [Appendix III] was prepared by Highway Patrolman Pearson, one of the investigating officers. It is a hand-drawn sketch of Mississippi State Highway 25 and shows the two automobiles in the northbound lane with the front of each automobile touching the other. Pearson testified that the sketch was made to identify the accident scene and to show the position of the automobiles and the roadway at the time of the accident. Objection to introduction of the sketch was overruled. An investigating officer may testify to the position of the vehicles when he saw them, marks on the highway, position of debris, glass and dirt. It is the province of the jury to determine from those physical facts the point of impact and how the collision occurred. The officer may not testify to the point of impact of the two vehicles, nor may he give his opinion as to the position of the vehicles at the time of the collision. Such testimony is speculative. Carruth v. Griffis, 220 Miss. 541, 71 So.2d 478 (1954).

On direct examination, Officer Pearson was asked his opinion where the collision occurred, without objection, and, on cross-examination, he was asked such opinion approximately five (5) different times. That testimony and the sketch would constitute reversible error, had objection been made and preserved properly. On retrial of the case, such testimony and Exhibit No. 2 should not be admitted in evidence.

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

REVERSED AND REMANDED.

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

APPENDIX I

INSTRUCTION D (18)

The Court instructs the jury that there are several factors you may consider in determining whether or not the defendant was intoxicated at the time of the accident:

(1) The percent by weight of alcohol in the Defendant’s blood;

(2) Whether the Defendant was reasonably alert and oriented;

(3) Whether the Defendant possessed a clearness of interlect [sic] and was capable of effective communication; and

(4) Whether Defendant was in physical control of himself.

The Court further instructs the jury that after considering the above factors you are not convinced beyond a reasonable doubt that the defendant was intoxicated at the time of the accident then you should so find.

APPENDIX II

INSTRUCTION D (15)

The Court instructs the jury that after hearing all the evidence in this case you believe that the deceased crossed the center line and hit the defendant’s car thereby causing the injuries sustained in this accident, then it is your sworn duty to return a verdict of not guilty.

APPENDIX III


author: WALKER, Justice, for the Court:

text:
    ENTEX, INC. and Jordan A. Doggett v. Terry D. RASBERRY.
    No. 50119.
    Supreme Court of Mississippi.
    March 8, 1978.
    Roberts & Easterling, M. M. Roberts, S. Wayne Easterling, Hattiesburg, for appellants.
    David H. Massey, Laurel, for appellee.
   WALKER, Justice, for the Court:

This is an appeal from a judgment entered against Entex, Inc. and Jordan A. Doggett after a trial by the Judge of the County Court of Jones County, Mississippi, sitting as a special judge without a jury. The suit resulted from a collision between a truck driven by appellant Jordan A. Dog-gett, acting within the scope of his duties as an employee of Entex and an automobile driven by the appellee, Terry D. Rasberry. The amount of the judgment was $9,985.80.

Although liability was contested at trial, the appellants make no claim on appeal here that the trial court’s finding against them in this regard was in error. Thus, it is not necessary for us to detail the facts of the accident.

Appellants’ first assignment of error is the ruling of the trial court which allowed the appellee’s medical expert to testify as to his impressions received from other medical reports. Dr. Charles Hollingshead, testifying as the expert witness for the appellee, stated that he examined the appel-lee two days after the accident and diagnosed the appellee’s problem as a sprain of the cervical spine. Dr. Hollingshead testified that this sprain caused the stiffness and soreness of the neck and shoulders of which the appellee was complaining. At this time, Dr. Hollingshead took an X ray of the cervical spine.

The medication and heat treatments which Dr. Hollingshead prescribed for the appellee at this time did not work and the appellee had to come back on several occasions for additional treatments. On one of these later visits, Dr. Hollingshead referred the appellee to the radiology department of the Jones County Community Hospital for another X ray of the cervical spine. Dr. Hollingshead testified that this X ray revealed a narrowing of the disc space between the fourth and fifth cervical vertebrae, which did not show up on the original X ray. This second X ray was not introduced into evidence and Dr. Hollingshead admitted that he never saw it. His testimony regarding it was based entirely upon the report of the radiologist, a Dr. Bouchillon, who did not testify in the case.

When it was determined that Dr. Holl-ingshead had not examined the second X ray, proper objection was made by counsel for appellants to further testimony about it by Dr. Hollingshead. However, this objection was overruled by the trial court on the ground that the X ray was made by a medically qualified doctor on a referral basis from Dr. Hollingshead. Apparently the trial court accepted Dr. Hollingshead’s determination as to Dr. Bouchillon’s qualifications.

Dr. Hollingshead was allowed to testify, in substance, that the narrowing of the disc was caused by the sprain suffered by the appellee in the accident and that this caused him to suffer chronic strain of the neck muscles, which, in turn, caused the discomfort of which the appellee was complaining. Dr. Hollingshead stated that although the deterioration of the disc had not progressed at the time of a third X ray, it might deteriorate further and surgery might be necessary to alleviate the appellee’s discomfort at some later point. Dr. Hollingshead apparently did not see this third X ray either, nor was it introduced into evidence.

In Wild v. Bass, 252 Miss. 615, 173 So.2d 647 (1965), the Court stated as follows:

Dr. Salatich’s testimony was objectionable for other reasons. Although the court instructed him that he was not to use any information other than the history he had obtained and what he had learned from his own examination in his testimony as to the nature and extent of the injuries, it is apparent from the record that the doctor relied on X-rays and reports from other doctors. The X-rays were not in evidence and none of the other doctors whose reports he. considered testified in the case. This becomes an important element in the case for the reason that Dr. Salatich testified that in his opinion appellee received a compression fracture of the fifth vertebra. However, the X-rays taken at the time Dr. Salatich made his examination did not show any such fracture. The only way that Dr. Salatich could have arrived at his conclusion that appellee suffered a fracture would have been facts gathered from other sources. He admitted he took as true what Mrs. Bass told him about the child being run over, and the history that she gave him of the child’s actions from the date of the accident until the date of his examination. He also testified that he had reports and X-rays by other doctors which he considered reliable. As an expert he could consider testimony of other doctors properly in evidence and also the result of any X-rays properly in evidence, but he should hot have been allowed to base his testimony on reports of other doctors and X-rays not in evidence. (252 Miss, at 627-28,173 So.2d at 651-52).

It is apparent that the facts of the instant case are virtually identical to those in Wild; therefore, the holding in the instant case is controlled by the rule enunciated in Wild that a “ . . . medical expert should not be allowed to base his opinion on matters not within his own knowledge and not in evidence in the case.” (252 Miss. at 628, 173 So.2d at 652).

There are two other assignments of error which deserve mention here, in order that the same errors might be avoided on retrial.

The appellants assert that the trial court erred in allowing Dr. Hollingshead to testify as to possibilities rather than probabilities of the necessity for future surgery and of permanent disability. Appellants cite in support of their argument, the case of Garrett v. Wade, 259 So.2d 476 (Miss.1972). The appellee seeks to distinguish Garrett from the instant case in that in Garrett, the issue was not the extent of the injury or the likelihood of the need for future surgery but whether the injuries were caused by the defendant’s conduct.

We do not think this distinction has any significance. The general rule is that where it is established that future consequences from an injury to a person will ensue, recovery therefor may be had, but such future consequences must be established in terms of reasonable probabilities. 25 C.J.S. Damages § 31 (1966). This is consistent with the rule governing proof of the causation of the injuries as expressed in Garrett and other cases and we see no reason why a different standard should apply in the two situations.

Appellants also contend that the trial court improperly allowed recovery for the expense incurred by the appellee in renting a car after the repairs on his car were completed and in not requiring proof of the reasonableness of the rental charge.

It appears that the appellee’s car remained in the repair shop for three weeks after it was fixed because of a delay by his insurance company in adjusting the claim. In Pelican Trucking Co. v. Rossetti, 251 Miss. 37, 167 So.2d 924 (1964), the Court stated:

The period for which recovery may be had for loss of use is that which is reasonably required for the making of repairs, or that within which the vehicle could be repaired with ordinary diligence. (251 Miss, at 44, 167 So.2d at 927).

Obviously, it follows from this that the appellee may not recover for the loss of use after repairs have been completed.

Finally, it is well settled that there must be proof of the reasonableness of bills • for the rental of replacement vehicles. However, such proof must be demanded by the appellants or else it is waived. Pelican Trucking Company, supra, on suggestion of error, 251 Miss. 45, 170 So.2d 573 (1964).

For the foregoing reasons, the cause is reversed and remanded for reconsideration of damages only. Upon remand either party, if desired, may have a trial by jury.

REVERSED AND REMANDED FOR RECONSIDERATION OF DAMAGES ONLY.

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


text:
    Martha Ann Steverson PENFIELD v. Ora Arender Steverson COOK et al.
    No. 50386.
    Supreme Court of Mississippi.
    March 8, 1978.

      Rainer & Sumrall, William Andy Sumrall, Pearl, for appellant.
    W.- E. McIntyre, Brandon, for appellees. EN BANC.
   WALKER, Justice, for the Court:

A bill of complaint requesting partial restitution based on mutual mistake of fact was filed in the Chancery Court of Rankin County, Mississippi. The defendant demurred on the ground there was no equity on the face of the bill. After hearing, the chancellor sustained the demurrer and dismissed the cause with prejudice.

The question on appeal is whether or not the bill of complaint stated a cause of action. Since the appeal is from an order sustaining a demurrer, the facts alleged by the complainant and any facts which are reasonably or necessarily implied therefrom must be taken as true. Poole v. Brunt, 338 So.2d 991 (Miss.1976).

According to the bill of complaint the parties entered into an agreement for the sale and purchase of land with the terms described in paragraph 4 of the bill of complaint as:

[Cjomplainants agreed to pay unto the Defendant the sum of $12,500.00, which said sum was arrived at by multiplying the figure of $1,250.00 per acre by the acreage contents which was to be purchased by Complainants, that is 10 acres (V2 interest in a 20 acre tract) which was to be purchased by Complainants; .

The sale was consummated at the stated price of $12,500 and in return, complainant received a quitclaim deed. The deed made no mention of the specific quantity of acres conveyed. It merely conveyed “our undivided interest in and to the following described land. . . . ” The land was then described as the North Half of the Northeast Quarter of Section 27, Township 6 North, Range 3 East, lying East of the Brandon and Fannin Road; and the deed then went on to except certain described parcels lying therein.

Subsequently, on October 25, 1976, complainant had the land surveyed; and, according to the survey, the land described in the quitclaim deed contained only 10.53 acres.

Paragraph 5 of the bill of complaint alleges that throughout the dealings “each party considered the total acreage content of the land to be 20 , acres, and the sale was arrived at by multiplying 10 (Vfe interest in 20 acres) times $1,250.00 per acre, and thereby arriving at the sales price of $12,-500.00,” and, “All of the parties were mistaken in reference to the acreage content, which mutual mistake was carried over into the consumation [sic] of the sale.”

The specific issue on appeal is: May a party who has sold land by a deed which makes no reference to the number of acres involved and which is a quitclaim deed, be held liable for restitution based on a mutual mistake of fact as to the amount of acres involved in the sale?

This case presents the problem of balancing the need for certainty in land transactions, as evidenced by written deeds, against the need for availability of equitable relief when justified by the facts.

On the present facts, the sale was consummated by the exchange of money for a quitclaim deed. Appellee argues and the lower court apparently held that a quitclaim deed gives no warranties and therefore cannot support a claim for deficiency in acreage.

In the alternative, it is argued that since we have held previous negotiations or contracts are “merged” into the deed of conveyance, West v. Arrington, 183 So.2d 824 (Miss.1966), and, parol evidence of prior representations may not be introduced to vary the terms of a deed, Bower v. Chess & Wymand Co., 83 Miss. 218, 35 So. 444 (1903), it would be error to consider prior agreements with regard to the acreage content, when passing on the sufficiency of the declaration. Miss. State Highway Commission v. Cohn, 217 So.2d 528 (Miss.1969).

The above principles all go to provide certainty in land transactions for those who rely upon written deeds. In the interest of equitable relief, however, some exceptions have been created when justified. In analogous situations involving mutual mistake of fact, we have allowed equitable relief. Reformation of a deed was permitted even where there was no ambiguity in the deed itself and the description used was that intended to be used by the parties, though under mutual mistake of fact. Brimm v. McGee, 119 Miss. 52, 80 So. 379 (1919). Rec-ision was held to be a proper remedy where there was a mutual mistake of fact, even though the conveyance was by a quitclaim deed. Greer v. Higgins, 338 So.2d 1233 (Miss.1976). And, in Brown v. Coker, 129 Miss. 411, 416, 92 So. 585 (1922), we held that where there is a mutual mistake of fact as to description of land, which results in a difference in value and location, recision or compensation for the difference in value are proper remedies, dependent upon the particular factual situation.

We have also excepted the situation where there is a mutual mistake of material fact from the doctrines of “merger” and “exclusion of parol evidence to vary a deed.” See, e. g., Miss. State Highway Commission v. Cohn, 217 So.2d 528 (Miss. 1969) where, while applying the two doctrines, we expressly excepted the situation of mutual mistake. 217 So.2d at 531.

In the present case, the bill of complaint alleged that there was a mutual mistake of material fact as to the acreage contracted to be bought. The suit is not based upon breach of warranty, as no warranty was made or expressed in the quitclaim deed. Rather, the suit is founded in equity seeking restitution in the form of proportional reduction of the purchase price where a formula of cost per acre was alleged to have been used to calculate the purchase price. Thus, the suit is not one of breach of warranty on a quitclaim deed, but one based upon alleged mutual mistake of a material fact in a contract of sale. In the present case, the issue does not involve a third party or bona fide purchaser without notice.

We, therefore, hold that where there are allegations of mutual mistake of material fact as to the amount of acreage conveyed and where the selling price is calculated on a cost per acre basis, a cause of action is stated, even though the conveyance is by quitclaim deed where no third party transaction is involved.

Since this appeal is taken from an order sustaining a demurrer to the bill of complaint, we make no comment on the merits of the case, other than to point out that in the interest of protecting the need for certainty in land transactions, we have long held a complainant, upon allegations of mutual mistake, to the heavy burden of proof beyond a reasonable doubt. Sunnybrook Children's Home, Inc. v. Dahlem, 265 So.2d 921 (Miss.1972); Frierson v. Sheppard, 201 Miss. 603, 29 So.2d 726 (1947).

For the above stated reasons, this case is reversed and remanded for further proceedings consistent with this opinion.

REVERSED AND REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION.

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