text:
    Malcolm B. ROBINSON, Jr. v. Gloria BETHAY.
    No. 7620.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 13, 1976.

      Malcolm B. Robinson, Jr., David M. Packard, New Orleans, for plaintiff-appellant.
    Corwin B. Reed, New Orleans, for defendant-appellee.
    Before STOULIG, BOUTALL and MORIAL, JJ.
   STOULIG, Judge.

Plaintiff, Malcolm B. Robinson, Jr.; has appealed a judgment dismissing his suit against Gloria Bethay for attorney fees and court costs.

The record reflects that in September 1973, Mrs. Bethay first retained plaintiff to bring a damage suit in her behalf for injuries she allegedly incurred in an accident with a car driven by Warren Lascóla. They entered into a contingent fee arrangement whereunder Mrs. Bethay was obligated to pay her attorney one-third of her recovery but was only obligated to pay costs should she be unsuccessful. After investigating the medical and physical facts, Mrs. Bethay and Mr. Robinson decided the chances of winning the suit were insufficient to warrant payment of the expenses necessary to bring it to court. Her claim was dropped.

At the time this decision was made, both attorney and client were aware the Chrysler Insurance Company was demanding reimbursement from Mrs. Bethay of the amount it paid to Lascóla under his collision coverage. When she refused, Chrysler filed suit against her on November 5, 1973. Mr. Robinson represented Mrs. Bethay without entering into a fee arrangement for defending the lawsuit. A $444 judgment was rendered against her on February 8, 1974. On May 3, plaintiff sent defendant a statement for $350 for services rendered plus $11.20 as court costs. He ultimately filed suit for this amount and then increased his demand in a supplemental petition by an additional sum of $98 allegedly advanced by plaintiff for medical services rendered to defendant in connection with her abandoned claim.

Appellant’s evidence as to his estimation of the value of services rendered is unclear. In his testimony he acknowledged the May statement indicates it covers services rendered in September and October 1973 which properly should have been assigned to the contingent fee arrangement. He acknowledges some credit is due for this time, and yet he claims the entire $350 is due because he was “lenient” in assessing the value of his services when he sent this bill.

The record establishes Mr. Robinson is entitled to a fee for services rendered in connection with the defense of the lawsuit. At the time he undertook the defense, there was no hope he would receive part of the plaintiff’s recovery as his fee because her suit had been abandoned. We find it difficult to believe that Mrs. Bethay, formerly married to an attorney, believed Mr. Robinson would agree to defend a suit for one-third of zero and that she would not ultimately be billed for his professional services. While it would have been better practice had Mr. Robinson arrived at a clear fee agreement before undertaking the defense, this does not preclude his recovery under a quantum meruit theory. Masinter v. Grunewald, 309 So.2d 739 (La.App. 4th Cir. 1975), and C.C. art. 1965.

We set his fee at $200. This is not to say that as a flat rule we value the defense of a lawsuit at $200. In fact we consider it low. But under the circumstances of this case, it is appropriate, for it is based on the amount in controversy and plaintiff’s admitted inaccuracy in his May 3 billing for services rendered. Additionally, we do not find sufficient evidence to sustain plaintiff’s right to his supplemental demand for $98.

Mrs. Bethay testified to, and Mr. Robinson admitted, a payment of $50. She is entitled to a credit. Thus the net amount due on the fee is $150 plus court costs of $11.20.

For the reasons assigned, the judgment appealed from is reversed and judgment is rendered in favor of plaintiff, Malcolm B. Robinson, Jr., and against the defendant, Mrs. Gloria Bethay, in the sum of $211.20, subject to a credit of $50, with legal interest from the date of judicial demand until paid and for all costs.

REVERSED AND RENDERED.

      . Code of Professional Responsibility of the Louisiana State Bar Association Canon 2, Ethical Consideration 19.


source: Caselaw Access Project

author: BEER, Judge. LEMMON, Judge

license: Public Domain

text:
    Frank GILBERTI v. Carolyn Theriot GILBERTI.
    No. 7626.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 13, 1976.

      Tucker, Schonekas & Garrison, Gibson Tucker, Jr., New Orleans, for plaintiff-appellant.

      Cronvich & Wambsgans, Metairie, Kenneth V. Ward, Jr., New Orleans, for defendant-appellee.
    Before LEMMON, GULOTTA and BEER, JJ.
   BEER, Judge.

Plaintiff-appellant, Frank Gilberti, filed suit for separation from his wife, Carolyn, alleging constructive abandonment. She reconvened alleging mental and physical cruelty. From a judgment in favor of the wife, the husband appeals.

Frank Gilberti testified that their difficulties reached a point where “we couldn’t even stay in the same house. We were arguing so much ... so the morning of April 21st (1975) ... I told my wife that I wasn’t going to sleep there anymore and I was packing my clothes . ” He testified his wife replied “ . . . I’m putting you out. I don’t want you back anymore.”

Carolyn Gilberti indicated that the final upheaval leading to her husband’s leaving their matrimonial domicile began when she inquired of him why he had not filed certain tax returns. These inquiries resulted in his being angered to the extent that he screamed and yelled at her. This behavior allegedly continued until his departure. She also describes an earlier incident in the course of which she claims her husband hit her in the face and spit on her. From that time onward, she contends that she has been afraid that a similar incident would occur. Nonetheless, she lived with him for approximately one year thereafter and admits no recurrence.

The only other act involving physical violence took place on the date of the husband’s departure. Before he left, he allegedly shoved in a door which struck Mrs. Gilberti’s fingernail and broke it.

In seeking to further support her claim of cruelty on the part of her husband, Carolyn Gilberti alleged and stood ready to testify that Frank Gilberti refused to have sexual relations with her. The trial judge, however, maintained an objection to the line of questioning regarding the alleged refusal— or infrequency — of sexual relations, notwithstanding counsel’s contention that such evidence was material to this litigation.

The testimony of both litigants indicates that their almost continuous arguments usually mushroomed from ordinary conversation and that once an argument started, it usually ended with yelling, screaming and cursing. Carolyn Gilberti observed: “Most of the timé, we started off on a simple conversation and somehow we wound up arguing. Now whose fault is that.”

The party seeking a legal separation on the grounds of abandonment must prove the elements thereof. Boudreaux v. Tanner, 295 So.2d 511 (La.App. 1st Cir., 1974). Once proven, the burden then shifts to the opposing party to prove the alleged abandonment was done with lawful cause or adequate provocation. Farkas v. Farkas, 264 So.2d 721 (La.App. 1st Cir., 1972). However, mutual agreement that one spouse should leave the matrimonial domicile is not sufficient of itself to support an action for separation predicated on abandonment. Schoen v. Schoen, 259 So.2d 626 (La.App. 4th Cir., 1972). Nor can abandonment be used as a basis for obtaining a separation from bed and board if it is resulting from an altercation in which the husband and wife are equally at fault. Wood v. Wood, 227 So.2d 656 (La.App. 3rd Cir., 1969). However, “constructive abandonment,” as specially pleaded in this case, has been jurisprudentially recognized in Smith v. Smith, 300 So.2d 205 (La.App. 3rd Cir., 1974).

Assuming, arguendo, that there was “constructive abandonment,” then Carolyn Gilberti’s reconventional claim of cruel treatment must be carefully reviewed in order to determine the correctness of the judgment appealed from.

Cruelty in any form which renders living together insupportable is a proper legal ground for a judicial separation in favor of the one mistreated. LSA-C.C. Article 138; Mudd v. Mudd, 206 La. 1055, 20 So.2d 311 (La.Sup.Ct., 1944); Chapin v. Chapin, 234 So.2d 781 (La.App. 1st Cir., 1970). Cruel treatment may exist even though there is no physical violence. Olberding v. Gohres, 107 La. 715, 31 So. 1028 (1902). Mental harassment alone is sufficient to constitute cruelty. Sampognaro v. Sampognaro, 211 La. 105, 29 So.2d 581 (1947); Berry v. Berry, 310 So.2d 626 (La. Sup.Ct., 1975); Schneider v. Schneider, 129 So.2d 42 (La.App. 4th Cir., 1961). Even a single instance of cruelty may be sufficient to justify separation from bed and board, Dejoie v. Dejoie, 224 La. 611, 70 So.2d 398 (1954), but this rule is inapplicable if there exists mutual fault or if the cruel act is the result of provocation on the part of the other spouse, Eals v. Swan, 221 La. 329, 59 So.2d 409 (1952); O’Neill v. O’Neill, 196 So.2d 669 (La.App. 1st Cir., 1967). The rule is also inapplicable if the act of cruelty is the only one during a long period of cohabitation. Barnes v. Barnes, 207 So.2d 895 (La.App. 1st Cir., 1968). Furthermore, cohabitation following physical abuse is usually construed as reconciliation although previous acts of violence may be material in corroboration with subsequent acts of violence, to demonstrate a justification for a wife’s alleged apprehension of personal safety which caused her to leave the house. LSA-C.C. Article 153, Maranto v. Maranto, 297 So.2d 704 (La.App. 1st Cir., 1974). Notwithstanding such evidential permissiveness, the rule is qualified so that mere uncorroborated testimony of one spouse as to the other spouse’s alleged acts of violence, contradicted by the accused spouse, will not constitute a preponderance of the evidence required to justify a judgment of separation, Johnson v. Johnson, 296 So.2d 470 (La.App. 2nd Cir., 1974), writs denied 300 So.2d 183 (La.).

Although Mrs. Gilberti testified that her husband struck her in the course of an argument that took place some six months after their marriage, Mr. Gilberti emphatically denies same. There was no other evidence corroborating Mrs. Gilberti’s testimony. Thus, the uncorroborated testimony of Mrs. Gilberti, insofar as it supports that alleged physical excess, is insufficient to constitute a preponderance of the evidence required to justify a judgment of separation on those grounds. But even though the alleged earlier altercation can not, standing alone, support a cruelty finding, such previous act of violence may, in corroboration with subsequent acts, demonstrate a justification for the wife’s apprehension of physical bodily harm. If the husband’s alleged earlier act of violence, viewed with the events of April 21st, reasonably led the trial judge to conclude that Mrs. Gilberti was living in a state of fear sufficiently upsetting as to render their living together insupportable, then the judgment must be affirmed.

The trial court’s factual conclusions, which are based on the testimony of witnesses whose credibility he must determine, are to be accorded very substantial weight on review. Sampognaro v. Sampognaro, 211 La. 105, 29 So.2d 581 (1947) and McVay v. McVay, 276 So.2d 926 (La.App. 3rd Cir., 1973). In Gurtner v. Gurtner, 258 So.2d 148 (La.App. 4th Cir., 1972), we stated that:

“On appellate review of a judgment granting a separation from bed and board based on conflicting factual evidence, this court should not substitute its judgment for that of the trial judge who listened to and observed the witnesses, but rather should affirm the finding of the trial judge if there is any evidence in the record to support his conclusion. Where both sides present substantial evidence and the trial judge chooses to accept the evidence of one side and reject that of the other, we should not reverse this determination.”

A study of the record does disclose factual disputes which were, apparently, resolved in favor of Carolyn Gilberti by the trial judge. Following the mandate of Gurtner v. Gurtner, supra, we must affirm even if it appears to us that the facts more likely lead to a conclusion that fault is equal.

Though it does not affect the outcome of this appeal, we must note the following:

The trial court maintained an objection to the admissibility of evidence regarding the lack or infrequency of the litigants’ sexual relations. This was error. Unjustified, persistent denial of sexual intercourse constitutes “cruel treatment” and “outrage” within the meaning of LSA-C.C. Article 138. This court has specifically stated:

“ . . .a spouse who unjustifiably declines sexual union breaches the marriage agreement in its most delicate and intimate fundamental aspect. Probably isolated instances of unjustified refusal must be borne as mere imperfections of humanity. But a studied rejection in this’ exquisitely sensitive relationship of the spouses must be deemed cruel treatment and outrage and, when the refusal is persistent, it must be deemed ‘ill-treatment * * * of such a nature as to render their living together insupportable,’ C.C. art. 138(3), when the refused spouse is of such a disposition that in fact the living together becomes no longer supportable.” Phillpott v. Phillpott, 285 So.2d 570, 572 (La.App. 4th Cir., 1973), writs refused 288 So.2d 643 (La.).

Were we not affirming, remand would be necessary to permit the taking of testimony and the introduction of evidence supportive of Mrs. Gilberti’s contention in this regard.

However, the judgment of the 24th Judicial District Court is affirmed on the grounds first above noted. Each party is to bear their own costs of the appeal.

AFFIRMED

LEMMON, J., dissents and assigns reasons.

LEMMON, Judge

(dissenting).

I acknowledge the rule of appellate review that when the evidence is in conflict, that evidence most favorable to the prevailing party should be accepted. In my view, however, this case is not one of resolution of conflicting testimony, but one of sufficiency of proof.

Mrs. Gilberti’s own testimony establishes only that the spouses were incompatible and provoked each other throughout a short, stormy marriage.

She began her testimony, for example, by describing how she refused to allow her husband the use of her automobile battery to start his car in retaliation for his refusal to explain why their income tax return had not been filed. Her other testimony — that their conversations generally turned into arguments and that she was struck in the face early in their marriage after a shouting and spitting exchange — indicate incompatibility and mutual intolerance rather than “ill-treatment ... of such a nature as to render their living together insupportable”.

I would reverse and remand for the purpose of allowing the excluded evidence of cruelty through sexual denial.


author: LEMMON, Judge.

text:
    Miss Patricia SQUATRITO v. Ralph L. BARNETT.
    No. 7627.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 13, 1976.

      Harry R. Cabral, Jr., Metairie, for plaintiff-appellant.
    Ralph L. Barnett, in pro. per.
    Before LEMMON, GULOTTA and BEER, JJ.
   LEMMON, Judge.

This is a malpractice suit against defendant attorney who, while allegedly representing Patricia Squatrito, allowed a year to pass without filing a tort suit to recover damages for the injuries she sustained in an automobile accident on January 9, 1966. Miss Squatrito has appealed from a judgment which maintained defendant’s exception of prescription and dismissed the malpractice action.

Because of the unusual procedural circumstances of this case, it is necessary to outline the pertinent events which preceded the judgment on the exception of prescription.

I

Miss Squatrito’s petition was filed on May 11, 1970 and preliminary default was entered on June 1, 1970. Defendant’s attorney then filed an exception of prescription. After a hearing on November 23, 1970, the exception was referred to the merits, and defendant was specifically given 15 days within which to answer on March 16, 1971, but when no answer was filed, Miss Squatrito confirmed the earlier default, and judgment by default was rendered on November 8, 1971 in the amount of $3,500.00. Neither party has ever appealed from the default judgment.

On January 7, 1972, almost two months after the clerk mailed a notice of the default judgment (no notice was necessary, because defendant had been served personally) and three weeks after service of a judgment debtor rule, defendant filed an application for a new trial, on the sole grounds (1) that the exception of prescription (having been referred to the merits rather than overruled) was still pending at the time of the confirmation of the default and (2) that the determination of liability was not supported by sufficient proof. At the hearing on the application defendant argued that he had prepared the application for new trial immediately after receiving notice of the default judgment and had timely handed it to the court crier of the division of court in which the case was pending. The trial court granted the new trial, specifically noting that defendant was not responsible for the crier’s misplacing the pleading and failing to file it of record within the delay for applying for a new trial.

Defendant thereafter filed an answer, and the case was eventually tried on the merits, after which the trial court dismissed plaintiff’s suit, maintaining the exception of prescription which had been referred to the merits. Hence this appeal.

II

Before reviewing the judgment maintaining the exception, we must first consider Miss Squatrito’s contention that the trial court improperly granted a new trial because the application was not timely filed following the judgment by default.

C.C.P. art. 253 requires that all pleadings to be filed “shall be delivered to the clerk of court for such purpose.” The article also requires the clerk to “endorse thereon the fact and date of filing” and to retain possession of the pleading for inclusion in the record. The fact and date of filing, which are the critical factual determinations as to the issue of timeliness, were not endorsed on the pleading by the clerk, or by the judge, or by any other court officer. Neither was the pleading delivered to the clerk for filing (until the tardy delivery in January).

The article requiring delivery of a pleading to the proper court officer is designed to prevent exactly what occurred in this case — the court’s being faced with a claim of a lost pleading after the time for filing the pleading has elapsed. The effect of the article is that a pleading is not “filed in an action” until it has been delivered to the clerk for that purpose. Therefore, a party obliged to file a pleading within a time limitation must insure actual delivery, since it is the time when the clerk receives actual delivery of the pleading which determines whether that pleading has been timely filed. Handing the pleading to a friend or even to a court officer who is not authorized to accept delivery is done at the risk that delivery to the clerk may not be accomplished timely.

Under the particular facts and circumstances of the present case, we are constrained to hold that there has been no compliance with C.C.P. art. 253. The crier’s duties do not include receiving delivery of pleadings for filing (C.C.P. art. 333), nor does any statute authorize this officer to receive delivery. Furthermore, the pleading was not entered on the docket or record of the case or in the minutes of the court, the fact of filing was not endorsed on the pleading, and the January application for new trial did not mention- the circumstance of earlier handing to the crier.

Inasmuch as we have concluded that the new trial was improperly granted, the judgment following the new trial and now before us for review must be annulled and set aside.

We cannot, however, now inquire into or modify the default judgment, as Miss Squatrito requests that we do in regard to the amount of the award. Since no timely application for new trial was filed and no appeal was perfected, that judgment has become final and definitive and has acquired the authority of the thing adjudged. C.C.P. art. 1842; C.C. art. 3556(31).

For these reasons, the judgment of the trial court is annulled.

ANNULLED.

      . See Johnson v. State Farm Mutual Automobile Ins. Co., 241 So.2d 799 (La.App. 3rd Cir. 1970) (which we do not necessarily approve in its entirety).

      . We have considered treating the application for new trial as a petition for nullity of judgment under C.C.P. art. 2002, at least as to the grounds relating to the propriety of the judgment by default. However, since there apparently was no evidentiary hearing on this application and since an action on these grounds may be brought at any time, we decline to do so.


author: REDMANN, Judge. PER CURIAM.

text:
    METAIRIE BANK AND TRUST COMPANY v. WENDRYHOSKI, DeBLANC, AND ASSOCIATES, et al.
    No. 7635.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 13, 1976.
    Rehearing Denied Nov. 16, 1976.
    Writ Granted Jan. 14,1977.
    James T. Flanagan (Moliere, Flanagan & Arceneaux), Metairie, for plaintiff-appellee.
    John J. Farrell, Jr., P. J. Browne, Jr. (Montgomery, Barnett, Brown & Read), New Orleans, for intervenor-appellant.
    Before SAMUEL, REDMANN and SCHOTT, JJ.
   REDMANN, Judge.

Plaintiff bank obtained and recorded a judgment against Ralph Diaz. Then Rafael E. Diaz and his wife recorded a counter-letter (“Declaration of Separate Property”) declaring that their home, acquired in the name of Rafael Eduardo Diaz for convenience only, was in fact acquired as the wife’s separate property with her separate funds. Thereafter, plaintiff caused the seizure under fi. fa. of the Diaz home. The wife now appeals from the trial court’s refusal to preliminarily enjoin sale of the home. We reverse.

The recordation of a judgment against “Ralph Diaz” does not make effective against third persons a judicial mortgage against property registered in the name of “Rafael Eduardo Diaz.” See Ford v. Tilden, 1852, 7 La.Ann. 533; Douglass v. Curtis, La.1826, 5 Mart.(N.S.) 112; Graves v. Hunter, 1871, 23 La.Ann. 132. (Succession of Montgomery, La.App.1950, 46 So.2d 677, is distinguished because both judgment and title were in the same name, save only that the judgment added the middle initial.)

Accordingly, when the counter-letter acknowledging the wife’s separate ownership was recorded and became effective, C.C. 2239, the wife was the record owner of the property, unaffected by any judicial mortgage in favor of plaintiff against “Ralph Diaz.”

Thus when plaintiff seized the property under fi. fa. it was not the property of the judgment debtor. The sale must therefore be enjoined.

Reversed; preliminary injunction to issue with bond to be fixed by the trial judge at plaintiff’s cost.

ON APPLICATION FOR REHEARING

PER CURIAM.

Plaintiff avers that it registered in the conveyance records (before the counter-letter was registered) “an affidavit of alias, specifically setting forth that its judgment against Ralph Diaz is against the same person who sometimes went by the name of Rafael E. Diaz.”

We reject plaintiff’s attribution to this affidavit of the effect of changing the name either of the party cast in the judgment (because not even a court can do this ex parte; Levy v. Stelly, La.App. 1970, 230 So.2d 774) or of the owner of the property (because a third person simply does not have this power). Perhaps, prior to the counter-letter, plaintiff might have had the property seized. Or plaintiff might at that time have brought an action to declare its judicial mortgage effective against property in the name of Rafael, meanwhile recording under C.C.P. 3752 a notice of the pendency of that action and ultimately recording its judgment in that action. There may be other means to reach a judgment debtor’s property titled in a name substantially different from that by which the judgment casts the debtor. We hold only that a stranger’s recorded affidavit that one named person and another are the same person does not subject property registered in the first name to the mortgage resulting from recording a judgment against the second.

      . The counter-letter cited an affidavit by the wife (recorded after the judgment) which lists the wife’s checks by number, date, amount and purpose, including checks for improvements and repairs.

      . For purposes of any reviewing court, we note that the wife did not direct the trial judge’s attention (or ours) to the name discrepancy. The wife argued, first, that she has the traditional right of the wife to show that property acquired during marriage (in her name, in the cases we have found) is her separate property rather than community, see, e. g., Betz v. Riviere, 1947, 211 La. 43, 29 So.2d 465; and second, the unnecessity of preferring a judicial mortgagee over the unrecorded claim of a wife, since — as the fisherman cannot rely on the fish when he casts his net — one does not obtain and record a judgment in reliance on the public records (citing this writer’s analysis of the right to reliance and of its limitations, in Louisiana Law of Recordation: Some Principles and Some Problems, 1965, 39 Tulane L.Rev. 491, 499-501). We find two decisions which somewhat support the wife: Douglass v. Douglass, 1899, 51 La.Ann. 1455, 26 So. 546; and Broussard v. LeBlanc, 1892, 44 La.Ann. 880, 11 So. 460 (see also Succession of Manson, 1899, 51 La.Ann. 130, 25 So. 639, where a bank’s later-recorded counter-letter defeated a minor’s recorded legal mortgage). A purchase by a third party in reliance on a title placed of record by a wife does defeat the wife’s right, Broussard v. Broussard, 1893, 45 La.Ann. 1085, 13 So. 699. The judicial mortgage is effective against later-recorded counter-letters favoring persons other than wives; Robertson v. Wood, 1850, 5 La. Ann. 197; State Ex Rel. Hebert v. Recorder of Mortgages, 1932, 175 La. 94, 143 So. 15; and it is effective against a third party who purchased prior to the recordation of the judgment but did not record his purchase until thereafter; Baker v. Atkins, 1902, 107 La. 490, 32 So. 69; Robin v. Harris Realty Co., 1934, 178 La. 946, 152 So. 573.

      . C.C. 3328 authorizes enforcement of the judicial mortgage against all the immovables which the debtor “actually” owns [whatever that may mean] or may subsequently acquire. “Actually” is a mistranslation from “actuéis” and should read “presently”; see Nathan, Comment, 1960, 34 Tulane L.Rev. 768, 770.


author: SCHOTT, Judge.

text:
    John VAN VRACKEN and Robert Van Vracken v. BRYANT AND ASSOCIATES, INC., et al.
    No. 7636.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 13, 1976.
    Gordon K. Konrad, Gretna, for defendant-appellant Bryant and Associates, Inc.
    Graffagnino & Perez, Lester J. Wald-mann, Metairie, for defendants-appellants.
    G. Patrick Hand, Jr., New Orleans, for plaintiffs-appellees.
    Before SAMUEL, REDMANN and SCHOTT, JJ.
   SCHOTT, Judge.

This case arose out of an agreement to purchase or sell real estate under the terms of which plaintiffs were to purchase and defendant Royce Enterprises, Inc. was to sell some unimproved property in Kenner, Louisiana. Pursuant to the agreement plaintiffs deposited $2700 with the seller’s agent, defendant Bryant & Associates, Inc. The contract contained the following:

“This offer is predicated on purchaser being able to obtain a building permit from the City of Kenner for warehousing on subject property before April 20,1974. In the event purchaser is unable to obtain his building permit within the prescribed time allotment a registered written notification will be given to Seller or Seller’s agent on or prior to April 20, 1974.”

Plaintiffs’ suit was not only for the return of the deposit but also for damages and attorney’s fees, and was brought against Bryant and Royce, as well as Doris Hebert, Realtor, and her salesman Terry Friedman, who took the offer from plaintiffs. Bryant reconvened for its share of the agent’s commission and attorney’s fees and Royce reconvened for the amount of the deposit and attorney’s fees. From a judgment in favor of plaintiff and against Bryant for $2700, and in favor of Doris Hebert, Realtor, Terry Friedman and Royce, dismissing plaintiffs’ suit as against them, Bryant and Royce have appealed. Plaintiffs have neither appealed nor answered defendants’ appeals.

The evidence shows that plaintiffs originally submitted an application for a building permit to the Planning Commission for the City of Kenner at its March meeting and the plan was rejected because of some deficiency in the proposed parking facilities. In connection with this application plaintiffs had spent $500 for plans and $100 for a filing fee with the City. The Commission advised plaintiffs to withdraw the application, have the plans altered and refile. They spent an additional $100 for alteration of the plans and resubmitted their application to the Commission at its April meeting. Thereupon the Commission again rejected the proposal because the parking facilities were still not acceptable. Throughout this period of time plaintiffs were in contact with the Planning Director for the City of Kenner, were attempting to follow his advice, and had employed a contractor and an architect in connection with the project. Following a conference with their contractor and the Planning Director after the second meeting, a revised plan was prepared at an additional expense of $500 to plaintiffs, and this was presented to the Board at the May meeting.

In the meantime, the April 20 deadline for plaintiffs to obtain a building permit was extended for one month. Plaintiffs’ new application had involved a resubdivision of the land in connection with which they incurred an expense of $700. Again the Commission rejected the proposal because of the manner by which the parking was to be provided and because the plaintiffs would not use all of the building if constructed but would secure a tenant to use a part of their building. Thereupon plaintiffs gave up in their efforts to obtain the permit and upon defendants’ refusal to refund their deposit this litigation ensued.

In his reasons for judgment the trial judge found that obtaining the permit for warehousing was a suspensive condition which was not fulfilled despite a good faith effort on the part of plaintiffs. Taking issue with this finding, Bryant relies on the testimony of the Planning Director to the effect that plaintiffs could have obtained their permit for warehousing if only they had made a proper application for same. Bryant then invokes the provision of LSA-C.C. Art. 2040 to the effect that the fulfillment of the condition was prevented by plaintiffs.

In the final analysis the efficacy of Bryant’s argument depends solely upon a reversal of the trial judge’s factual determination of good faith on plaintiffs’ part. We have concluded that the inference of good faith is reasonable and is supported by evidence in the record.

The trial judge correctly applied the provisions of C.C. Art. 2038 to the facts. See Katz v. Chatelain, 321 So.2d 802 (La.App. 4th Cir. 1975); Garlete v. Rodriguez, 126 So.2d 182 (La.App. 4th Cir. 1961).

Accordingly, the judgment appealed from is affirmed.

AFFIRMED.

      . C.C. Art. 2038 provides as follows:
      “When an obligation has been contracted on condition that an event shall happen within a limited time, the condition is considered as broken, when the time has expired without the event having taken place. If there be no time fixed, the condition may always be performed, and it is not considered as broken, until it is become certain that the event will not happen.”


author: BEER, Judge.

text:
    Frank A. O’DONNELL v. The CITY OF NEW ORLEANS.
    No. 7858.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 13, 1976.

      Kierr, Gainsburgh, Benjamin, Fallon & Lewis, Ronald K. Gurley, New Orleans, for plaintiff-appellant.
    Thomas P. Anzelmo, Sr., Jackson P. McNeely, Philip S. Brooks, New Orleans, for defendant-appellee.
    Before LEMMON, GULOTTA and BEER, JJ.
   BEER, Judge.

Plaintiff-appellant, Frank O’Donnell, claims total and permanent disability caused by an on-the-job injury resulting in painful and complex fractures of the long and index fingers of his right hand. The trial court entered judgment in his favor but limited the award to a “scheduled loss,” and he appeals.

At the pertinent time, O’Donnell was forty-three years old, married and father of three children. He had lost his left arm below the elbow prior (and unrelated in any way) to his employment by the City of New Orleans, Civil Service System, as a watchman with various clerical duties at the city incinerator. His duties included answering phones and inspecting the building periodically for trespassers or vandals. On Sunday, March 17, 1974, while O’Donnell was acting within the scope of his employment, he injured his hand when he attempted to close two manually operated elevator doors. He returned to work at the same job on March 25, 1974, eight days after the accident, and worked without interruption until he resigned on June 15, 1975.

Anthony Stant, a foreman, testified that plaintiff was hired on February 12, 1974; that there were no witnesses to the accident; that O’Donnell had experienced no other injuries during his employment; and that O’Donnell’s stated reason for resignation was because of a baby-sitting problem regarding his children and not that he (O’Donnell) was apprehensive about being left alone on weekends. Finally, Stant testified that there had been no complaints relative to Mr. O’Donnell’s work performance either before or after the accident.

Aaron Landry, also a foreman, substantiated Stant’s testimony regarding O’Donnell’s competency to perform his work before and after the accident.

Dr. Matko Milicic, an orthopedic surgeon, did not testify, but his deposition and medical reports were introduced and admitted into evidence. He first saw O’Donnell in May, 1974, and continued to see him until December 18,1975. Dr. Milicic opined: “As far as the permanent partial disability is concerned it should be estimated as approximately 25% of the right index finger which would be approximately 5% of the whole right hand and 25% of the right long finger which would be approximately another 5% of the whole right hand giving total permanent partial disability as approximately 10% to 15% of the whole right hand. It is to be remembered that Mr. O’Donnell is a below elbow amputee on the left, and the right hand is the only hand he has.” Dr. Milicic further testified that O’Donnell “ . . . still has a hand with which he can perform rather adequately and should be fairly adequate in performing many jobs. . . . ” He felt “ . . .if there would be jobs not requiring grasping, it seems to me that he should be able to perform it.” He refused to categorize the pain suffered by O’Donnell as extreme.

O’Donnell testified that he resigned because he was afraid to work at the incinerator plant by himself on weekends because he doubted if he could defend himself in the event he was attacked. He says that he was ashamed to reveal his fear of this inability but also directly contradicts the testimony of Anthony Stant, denying that the baby-sitter problem was his stated reason for quitting. He admits that he was not persuaded in any way to quit his job but acted upon his own accord. At the time of the trial (since quitting his job), O’Donnell acknowledged that he performed odd jobs for friends including but not limited to paneling, “a lot of hammering” and painting houses. He says that he experiences pain “ . . . like a toothache . . . (I)t’s shooting pain, sometimes it throbs.”

Lillian Deslattes, who qualified as an employment consulting expert (certified employment consultant), was of the opinion that O’Donnell would have serious difficulty securing employment but admitted that he “evidently” could obtain employment with the City of New Orleans, or in the public sector of the labor market. Stant acknowledged that city policy encourages hiring of disabled individuals if possible. Deslattes also acknowledged that O’Donnell would encounter serious employment difficulties, even if he still had a totally uninjured right hand.

Able counsel for O’Donnell argues that the trial court erroneously applied the test for a skilled laborer to O’Donnell, who is a common laborer. He contends that cumulative disabilities should be the weighing factor when applying the correct test. The City urges that permanent total disability was not proven by a preponderance of the evidence and contends that the manifest error rule requires affirmation of the trial court’s judgment.

Our review is essentially limited to a determination as to whether the trial court erred in finding that O’Donnell was not totally and permanently disabled under the circumstances of this case.

Factors for consideration by the trial judge, in addition to O’Donnell’s return to and ability to perform his pre-injury job, included:

1. O’Donnell’s existing disability prior to the subject injury;

2. The fact that O’Donnell was hired as a watchman and was capable of competing with other able-bodied persons for that position before and after his accident;

3. The fact that during O’Donnell’s post-injury employment with the City, the latter had no complaints about his job performance;

4. The fact that O’Donnell voluntarily terminated his employment;

5. The fact that O’Donnell’s testimony at the trial regarding his reasons for quitting his job was directly contradicted by a disinterested witness; and

6. The fact that the public labor sector creates a considerable number of jobs and is part of the general labor market.

O’Donnell relies upon Funderburk v. Southwestern Iron Corporation, 180 So.2d 4 (La.App. 2nd Cir., 1965). There, plaintiff had lost his left arm in a childhood accident. He lost the middle finger of his right hand in the accident covered by the Workmen’s Compensation Act. In finding total and permanent disability, the court concluded that it would be “ . . improbable that plaintiff could obtain employment at a service station or the work he was doing at the time of the accident.” “ . . . (T)he employee will necessarily find it most difficult to perform the same work in the future even if there should be complete healing of his finger and hand.” The emphasis of the court in Funderburk was upon plaintiff’s disability to return to the “same work.” Here, O’Donnell was able to and indeed did return to his previous employment a week after the accident. From that time until he quit, O’Donnell’s employer had no complaints about O’Donnell’s performance on the job and no complaints from O’Donnell that he had difficulty or experienced pain in doing his work. Funderburk is completely distinguishable.

The other cases relied upon by O’Donnell are also patently distinguishable. Deshotels v. Fidelity and Casualty Co. of New York, 324 So.2d 895 (La.App. 3rd Cir., 1975) writ denied March 19, 1976, involved a claimant who suffered a loss of vision in his right eye thus disabling him from cutting trees which was his profession. The court found that due to his experience in tree-cutting, “ . . . all his job tasks make him at least a semi-skilled worker.” Branum v. J. Ray McDermott and Company, 271 So.2d 698 (La.App. 1st Cir., 1972), dealt with a shipfitter who suffered from acrophobia following an on-the-job fall from a scaffold. After returning to work for J. Ray McDer-mott & Company for a short term, the claimant was dismissed due to his disabling condition — viz., acrophobia. The court stated “(w)e can find no better evidence of plaintiff’s inability to compete with fully able-bodied shipfitters in the ordinary labor market than his own employer’s termination of plaintiff’s services because of plaintiff’s inability to climb.”

Public sector entities, such as the City of New Orleans j make it a continuing practice to offer job opportunities to amputees and cripples and to maintain them in gainful employment. The fact that this was taken into account in the trial court’s judgment has both a sound legal and factual foundation. O’Donnell obviously was and remains employable in the public sector of the labor market, and the spirit of the law perceives this public sector as a representative part of the flexible general labor market. The trial court’s observation is noteworthy: “The City is a source of employment for amputees and cripples and as such is meeting a obvious need in this community.”

Prior to the injury which forms the basis of this suit, O’Donnell’s status in the general labor market was that of a man who had experienced a below the elbow amputation of his left arm. His status cannot be “laundered” by his injury if he is able — as the record indicates and the trial judge found as a fact — to return not only to the same job but to the same sector of the general labor market.

A workmen’s compensation claimant must prove permanent and total disability by a reasonable preponderance of evidence (Tyler v. Owens Illinois, Inc., 289 So.2d 893 (La.App. 4th Cir., 1974) and Prim v. City of Shreveport, 297 So.2d 421 (La. 1974); and the trial court’s findings of fact based upon its weighing of the evidence will be reversed only upon a showing of manifest error (Canter v. Koehring Company, 283 So.2d 716 (La.1973).

The trial court’s very detailed written reasons include the following conclusions:

“This watchman returned to his same employment for a year following this accident with no complaints from anyone, including himself. He could and did perform the same work. He voluntarily quit and the Court does not believe the story he gives as to why he quit and even if it did, there is little merit to it. The same situation as alleged by him, fear of being attacked, existed before as it did after the accident, and it exists in every neighborhood in the city, not only at the incinerator where he was employed. Medical evidence shows that he was able to perform the same duties following the accident and in fact, he did for a year or more.”

Accordingly, we affirm. Costs of this appeal are to be paid by appellant.

AFFIRMED.


author: BOUTALL, Judge.

text:
    Donald F. JONES v. FRANK BRISCO COMPANY, INC. and Insurance Company of North America.
    No. 7877.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 13, 1976.
    Edward H. Booker, New Orleans, for Donald F. Jones, plaintiff-appellant.
    Ralph S. Johnson, New Orleans, for Frank Briscoe Co., Inc. and Insurance Company of North America, defendants-appel-lees.
    Before STOULIG, BOUTALL and MORIAL, JJ.
   BOUTALL, Judge.

Plaintiff appeals a judgment of the district court which allowed plaintiff workmen’s compensation benefits for a period from December 27, 1974 up to November 26, 1975. Plaintiff argues that the trial court committed error when that court failed to award plaintiff permanent and total disability benefits.

On December 27,1974 plaintiff, a carpenter, was knocked from the scaffolding from which he was working and fell thirteen feet to the ground. Plaintiff was treated at Algiers General Hospital and released after a three-day hospitalization period. While in the hospital, the plaintiff was treated by Drs. Horn and Wagner, but did not return for treatment after release from the hospital. At the request of the defendant, the plaintiff was examined by Dr. Grunsten, an orthopedist, on May 6, 1975. Dr. Grunsten recommended that the plaintiff return to work on a trial basis as of that date, May 6, 1975. Plaintiff Jones then sought treatment from Dr. Adatto on May 29,1975 and thereafter. Dr. Adatto could find no medical basis for the continued complaint of pain, but referred the plaintiff to Dr. Dy-sart, a neurologist.- On November 24, 1975, Dr. Adatto recommended to the plaintiff that he should return to work for a trial period. Upon examination by Dr. Dysart the plaintiff was found to be normal. On November 26, 1975 the plaintiff signed up for work.

It is uncontested that the plaintiff had suffered injuries to the neck, elbow and back at the time of the fall. In a short time the plaintiff had recovered from the neck and elbow injuries. However he continued to complain of pain in his back. Despite these general complaints of pain, neither Dr. Grunsten nor Dr. Adatto, plaintiff’s personal physician, could find a medical basis for these complaints and both doctors recommended that the plaintiff return to work on a trial basis. The last such recommendation being made November 24, 1975.

The trial court judge awarded plaintiff Donald F. Jones compensation benefits from the date of the accident until the date that the plaintiff last visited a doctor regarding his injury, such date coinciding with the time that the plaintiff signed up for work. Without detailing the testimony of each doctor, we believe the evidence supports the trial judge’s conclusion that plaintiff Donald F. Jones was able to return to work as of November 26, 1975.

We affirm.

AFFIRMED.


text:
    Harold P. GROS, Sr. v. EMPLOYERS INSURANCE OF WAUSAU.
    No. 7902.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 13, 1976.
    Lazard Levy, Marrero, for Harold P. Gros,. Sr., plaintiff-appellant.

      Louis M. Kiefer, Jr., New Orleans, and Ronald L. Ronzello, Metairie, for Employers Insurance of Wausau, defendants-appellees.
    Before STOULIG, BOUTALL and MORIAL, JJ.
   BOUTALL, Judge.

Plaintiff, Harold P. Gros, appeals a judgment rendered in favor of defendant-appel-lee, Employer’s Insurance of Wausau, dismissing plaintiff’s suit for workmen’s compensation benefits.

Plaintiff injured the fingers of his right hand in an on the job accident, May 15, 1974. Surgery on one of the fingers occurred on May 16, 1974 with further treatment thereafter, but the long finger of the right hand had to be amputated at the proximal phalangeal joint in September, 1974. Plaintiff returned to work in October, but pain caused by a neuroma which was later excised, caused the plaintiff to seek further treatment and prevented his working. After this further medical treatment, the plaintiff returned to his same job as a laborer-mechanic in January, 1975 and has worked without interruption since then. During this entire period that plaintiff was unable to and did not work, workman’s compensation benefits were paid him in the amount of $2,405.00 plus all medical expenses.

Plaintiff filed this suit in April of 1975 seeking an award of permanent and total disability based upon the impairment of the use of his right hand, and for penalties and attorney's fees because of defendant’s refusal to pay further disability for the benefits. At the trial there were only two witnesses who testified, plaintiff and his work supervisor. No physicians testified, but the detailed reports of the physician who treated plaintiff for the entire period were stipulated into the record. From an adverse judgment, plaintiff filed this appeal.

There is no question but that plaintiff has suffered a disability for which he is entitled to workman’s compensation benefits, the only question is the extent of that disability. The stipulated medical testimony is as follows:

“It is my opinion that this individual has limitation of motion of the aforementioned involved digits.
“It is my opinion that this individual has a 15% loss of function of his index finger, 100% loss of function of his long finger, 50% loss of function of his ring finger and 50% loss of function of his small finger. There is no loss of function of his thumb.
“It is my opinion that the plaintiff does not have Sudeck’s atrophy of the involved hand.”

Based upon these findings, appellant argues to us that he is entitled to be declared totally and permanently disabled on the basis: 1.) That he cannot do his work; 2.) that he works in pain; and 3.) that he cannot compete in the labor market with workers of similar character.

The evidence discloses that the appellant has been doing essentially the same work since his discharge as he had been doing prior to that time, and that, because of the nature of the plant operation, he now does additional work of a different nature. Appellant testifies that he had some difficulty in performing all of the tasks involved in the same manner as he previously did, for example, climbing ladders, holding screw driver, paint brush or small tool, but we believe the evidence to fairly show that he does his job with only some inconvenience, i. e. he has to grip his tools in a different fashion or perhaps rely somewhat more on the use of his left hand. His supervisor testifies that appellant has done all of his job well and has made no complaint of inability to do so, nor has he noticed any. Circumstances that may be disabling in certain jobs may be irrelevant to others, and the mere demonstration of the loss of a member or grievous injury will not achieve ipso facto a total disability award. Ory v. Metal Building Products, Inc., La.App., 265 So.2d 338 (4th Cir. 1972). The record contains adequate support for a finding that appellant could do his work without difficulty of a disabling nature.

Similarly, we are of the opinion that the evidence fairly supports a finding that appellant works without substantial pain. Even his own testimony shows that since his discharge he has worked with only occasional pain, not of a substantial nature, when he used large heavy tools for a strenuous task. A party alleging disability because of pain must establish evidence of that condition to be a reasonable certainty by a preponderance of the evidence. Breaux v. Kaplan Rice Mills, La.App., 280 So.2d 923 (3rd Cir. 1973). The mere claim of pain without some proof is not enough to prove residual disability substantial enough to prevent claimant from carrying on the same or similar work. Jones v. Quick Shop Food Store, La.App., 263 So.2d 73 (1st Cir. 1972).

Finally, we turn our attention to inability to compete with other persons in appellant’s occupation and the ability to secure employment as against a person not so disabled. As related above, the evidence demonstrates that he can do, and has been doing, his job with minimum difficulty and that he suffers minimal pain if any. There is no evidence in the record to suggest what type of job he may be unable to do that compares to the type of employment in which he is presently engaged. While it is a fact that he cannot close the fingers of his hand completely, he has full use of his thumb and the palm portion of his hand such that he can do all of the tasks assigned to him. There is simply a lack of evidence to show in what other job related field he may be hindered.

In considering this point we have also considered because this man unquestionably has a disability, that he may be qualified for permanent disability of a partial nature, or that he may have a specific disability related to loss of function. The trial judge rendered no written reasons but must have considered that the disability was only as to fingers (LSA-R.S. 23:1221(4)(b), (c) and (o) as set out in the stipulation. Compensation benefits for such a partial specific disability are less than the compensation paid and would result in a dismissal of plaintiff’s suit. Partial disability for a hand, Subsection (4)(e), or a physical function under Subsection (4)(p), would probably result in a judgment for additional benefits. In view of the stipulated evidence and the testimony, we cannot say that the trial judge was in error.

The judgment is affirmed.

AFFIRMED.

      . A finding of permanent partial disability under Subsection (3) would necessarily be speci-tied in a judgment even though present wages would be equivalent to prior wages.


author: REDMANN, Judge. SCHOTT, Judge

text:
    CAJUN ELECTRIC POWER COOPERATIVE, INC. v. LOUISIANA POWER AND LIGHT COMPANY.
    No. 7929.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 13, 1976.
    Rehearing Denied Nov. 16, 1976.

      John Schwab, Baton Rouge, for plaintiff-appellee.
    Andrew P. Carter, William T. Tete, Monroe & Lemann, New Orleans, for defendant-appellant.
    Before SAMUEL, REDMANN and SCHOTT, JJ.
   REDMANN, Judge.

On an earlier appeal in this case, La.App., 324 So.2d 475, another three-judge panel held a cause of action for arbitration stated despite plaintiff’s having combined matters covered by arbitrable and non-arbitrable contract provisions. As we read that opinion, it agreed with the trial judge’s key conclusion of law, namely that arbitration of such a combination is simply not available. However, despite the petition’s failure to allege that defendant refused to arbitrate the arbitrable issue if severed from the non-arbitrable issue (see R.S. 9:4203), the earlier opinion “conclude[d] that the petition does state a cause of action to arbitrate the controversy arising under the last sentence of Section 1.02, and [the first sentence of?] Section 1.03 [the admittedly arbitrable provisions].” 324 So.2d at 478. Unfortunately, this express limitation of the cause of action was not specified in the court’s further utterance: “LP&L should be given an opportunity to agree to the proposed arbitration or refuse. We remand . solely for the purpose of determining if LP&L will refuse to arbitrate.” Id.; emphasis added.

The trial judge understandably found that LP&L refused “the proposed arbitration” and order arbitration “as petitioned for herein.”

That judgment must be reversed. Despite its somewhat contradictory expressions, the earlier opinion of this court must be read to deem the issues separable and to have found a cause of action only as to the arbitrable issue. Yet plaintiff did not show any unwillingness on LP&L’s part to arbitrate that issue, and the court could not have found that LP&L failed to comply with the arbitration agreement, as required by R.S. 9:4203, by refusing arbitration as to the arbitrable issue. (Indeed, plaintiff has not even shown that it itself is willing to arbitrate as to the arbitrable issue alone.)

Reversed; dismissed at plaintiff’s cost.

SCHOTT, Judge

(concurring).

The request of plaintiff which gave rise to this dispute was an integrated request consisting of two parts, 1) that defendant provide a new point of delivery near Gal-lion, Louisiana, and 2) that there be a reduction of the load at an existing Bastrop delivery point equivalent to the amount of the load which would be carried by the new point of delivery at Gallion.

Plaintiff is entitled to arbitrate only those disputes which the parties by their contract have agreed to relegate to arbitration. The contract provides for such arbitration only “if disputes arise under the last sentence or paragraph 1.02, or the first sentence of paragraph 1.03 . . .”

1.02 and 1.03 confine themselves to the construction of new delivery points, and the question to be arbitrated is which party is to put up the money for the construction of the delivery point. If “sound engineering and economic principles” support the new point of delivery defendant puts up the money, whereas if they do not plaintiff puts it up but is repaid for its investment by defendant over a ten year period.

Had plaintiff confined its request to the first part only and had maintained that sound engineering and economic principles did justify the installation without regard to the effect it might have on existing facilities at Bastrop, plaintiff would have been entitled to arbitration had defendant disagreed that such sound engineering and economic principles justified the installation. The arbitration would then have proceeded and a decision made as to who would pay the initial cost of the installation. After installation of the delivery point at Gal-lion, plaintiff might reduce the capacity at Bastrop and transfer the delivery to the Gallion point. At that stage defendant could invoke the provisions of paragraph 1.05, in effect, requiring plaintiff to pay for full capacity at Bastrop for twelve months rather than for the reduced capacity over that period. Under this scheme plaintiff would also pay for the minimum quantity agreed to for the Gallion point at the time it was constructed and for the additional demand occasioned by the transfer of capacity from Bastrop.

If defendant is ordered to .arbitrate the matter as requested, the question of whether sound engineering and economical principles dictate the installation of the new point at Gallion would become confused with the proposal to transfer capacity from Bastrop to Gallion. Defendant’s rights under paragraph 1.05 would be jeopardized in the process.

It may be that this Court could order arbitration with the prohibition included that the arbitrator is not to consider the transfer of 1,175 kilowatts from Bastrop to Gallion in making his determination as to whether sound engineering and economic principles justify the installation in Gallion, or in effect to exclude from his estimates of the load anticipated at Gallion any part of the load presently being carried at Bastrop, but this is not what plaintiff requested, and probably had good reason for requesting the new point of delivery only if the arbitrators could consider that new point getting some of its load from the existing point at Bastrop.

The contract does not entitle plaintiff to arbitration when a request is made for a new point of delivery which encompasses a reduction of a load at an existing point. The contract contemplates arbitration when a request is made for a new point of delivery without regard to its effect on existing points of delivery. Since plaintiff did not make such a request, it is not entitled to arbitration under the contract.

I respectfully disagree with my colleagues who held on the earlier appeal in this case, 324 So.2d 475, that plaintiff stated a cause of action. I would have dismissed plaintiff’s suit at that time for the reasons stated. I therefore concur with the dismissal of plaintiff’s suit at this time.

ON APPLICATION FOR REHEARING

(BY THE WHOLE COURT)

The court en banc has decided that it will consider en banc the application for rehearing.

The court’s earlier opinion, La.App. 324 So.2d 475, and the present opinion are in agreement: first, that a proposal is not arbitrable as a whole if it consists of two parts of which one part is not arbitrable; and second, that arbitration can be had of the arbitrable part of a two-part proposal.

The court’s later opinion holds only that plaintiff did not prove either that it proposed, or that defendant rejected, arbitration of the arbitrable part alone (of the two-part proposal).

If plaintiff desires arbitration of the arbi-trable part of its proposal (that governed by the pertinent sentences of §§ 1.02 and 1.03 of the parties’ contract) it need only submit a new proposal to that effect, eliminating the last sentence of its original proposal (that governed by § 1.05).

Rehearing is refused.


author: LEE, Justice, GILLESPIE, Chief Justice,

text:
    Effie J. POOLE v. Lewis Q. BRUNT, Sheriff, and United States Fidelity & Guaranty Company.
    No. 48645.
    Supreme Court of Mississippi.
    Oct. 12, 1976.

      Luckett, Luckett & Thompson, W. O. Luckett, Jr., Clarksdale, for appellant.
    Caldwell & Lewis, Ben M. Caldwell, Marks, Watkins & Eager, Thomas H. Watkins, Jackson, for appellees.
   On Petition For Rehearing

The former opinion in this case is withdrawn and the following is substituted as the opinion of the Court.

Part I.

LEE, Justice,

for the Court:

The Circuit Court of Quitman County, Mississippi, sustained a demurrer to the third amended declaration of Mrs. Effie J. Poole, filed individually and in the name of the State of Mississippi, for her use and benefit, against Sheriff Lewis Q. Brunt and United States Fidelity & Guaranty Company, surety on his official bond. She declined to plead further and appeals here. We reverse.

The suit was for personal injuries sustained by appellant resulting from a collision between an automobile driven by her and an automobile of the sheriff’s department driven by Thomas O. Bonner, Jr., Sheriff Brunt’s deputy. Appellees admit that the declaration would be sufficient to state a cause of action, except that as against appellees it failed to do so for the reason that Deputy Bonner could not have been performing an official act, or enforcing the law, or acting under color of his office while driving the vehicle.

Appellant charged in the declaration that at the time of the collision on November 20, 1973, (1) Deputy Bonner was an employee and representative of Sheriff Brunt, and was acting officially in the course and scope of his employment with the sheriff; (2) he had been furnished the use of the vehicle driven by him as a condition of his employment; (3) Bonner was exercising the duties and functions of a deputy sheriff and was in the discharge of official duty; (4) he was driving the vehicle in a southerly direction on Mississippi Highway No. 3, and it was equipped with seven blue emergency lights which were either flashing or revolving; (5) an electronic siren on the vehicle was sounding at the time; (6) Bonner was not acting in his own behalf as a private citizen, but was acting within the general scope of his authority; (7) he was dispatched on this official duty by the Sheriff’s Office of Quitman County, not as an individual, but as an officer; (8) Bonner was operating under color or by virtue of his office at the time of the collision; and (9) it was raining and Bonner, driving the vehicle at a highly excessive rate of speed, ran head-on into appellant’s car in its proper northbound lane of travel, resulting in serious injuries to her (appellant’s eleven-year-old daughter was killed in the collision).

Sheriff Brunt’s official bond in the sum of fifteen thousand dollars ($15,000.00) was made an exhibit to the declaration, the condition of which provided: “The condition of this obligation is such that if the principal shall well and faithfully perform the duties of said office, then this obligation shall be void, otherwise, to remain in full force and effect.”

The sole question presented here is whether or not the allegations of the declaration, which must be taken as true, sufficiently charged that Bonner was acting by virtue of his office or under color of his office and within the scope of his official position as deputy sheriff.

We find no reported cases in Mississippi involving the liability of a sheriff and the surety on his official bond for the negligent acts of a deputy in the operation of an automobile, and the case is one of first impression in this state. Most of the cases in Mississippi deal with liability for the acts of a deputy in assaulting, shooting or killing an individual.

Appellees rely upon the case of State, For the Use of Dew v. Lightcap, et al., 181 Miss. 893, 179 So. 880 (1938). In Dew, this Court held that a sheriff and surety on his official bond were not liable for injuries sustained when the deputy allegedly shot plaintiff, who insisted on being present while the deputy talked to a third person, and where the deputy had no arrest warrant, and there were no circumstances permitting an arrest without a warrant. The Court further held that the deputy was neither acting by virtue of his office, nor under color of his office.

In Bearry v. Stringfellow, 246 Miss. 123, 149 So.2d 500 (1963), the declaration simply charged that W. D. Bearry was Sheriff of George County, that Smith was his duly-appointed deputy, acting as his agent and employee within the course and scope of his agency and position as a member of the sheriffs office, and that he wrongfully-shot and killed Stringfellow. This Court held that the sheriff and deputy were not entitled to a peremptory instruction and judgment for twenty-five thousand dollars ($25,000.00) was affirmed. In its sequel, United States Fidelity & Guaranty Co. v. State, For the Use of Stringfellow, et al., 254 Miss. 812, 182 So.2d 919 (1966), which was a suit to collect the judgment from the surety on the sheriff’s official bond, the Court said: “We have held that the Sheriff’s bond is liable for the acts of a deputy sheriff acting within the scope of his authority.” 254 Miss. at 817, 182 So.2d at 922.

In Smith v. State, For the Use and Benefit of Hicks, 247 So.2d 705 (Miss.1971), Deputy Sheriff Merritt shot Hicks, a person unknown to him, as Hicks approached the deputy and a certain Mclnnis, who were engaged in an altercation. The Court said:

“The determination of whether Merritt was acting under color or by virtue of his office, in his official position with it, or whether his action was personal or private on the occasion complained of were facts to be found by the jury under the conflicting evidence.” 247 So.2d at 706-707.

Decisions of other states are not in harmony on this question, and a discussion of them may be found at page 1189, et seq., 15 A.L.R.3d (1967). Some support the . conclusion that if an accident occurs while a deputy is on the way to or from an exact spot where an official duty was, or is to be, performed, negligence in operating his vehicle is not in an official capacity. Other decisions support the contrary conclusion. Appellees contend that the first view is the sounder and is followed by the Dew case, supra.

In Duran v. Mission Mortuary, 174 Kan. 565, 258 P.2d 241 (1953), the Kansas court affirmed a judgment against a sheriff for the death of one, and injuries to a second, passenger in an ambulance which was struck by a sheriff's patrol car driven by a deputy sheriff. The deputy was, at the time of the accident, on an emergency call to investigate an accident, news of which he had received by radio a few minutes before the collision. The court ruled that, under the evidence, the deputy was acting in an official capacity while transporting himself between two places in the performance of his official duties, and that whatever he was doing at the critical time was being done, not as an individual, but as an officer acting by virtue, and under color, of his office.

Judgment against a sheriff and the surety on his official bond for injuries suffered in an automobile collision, one of the vehicles being a county car driven by a deputy sheriff, was affirmed in Hanratty v. Godfrey, 44 Ohio App. 360, 184 N.E. 842 (1932). After referring to a statute providing that a sheriff is responsible for neglect of official duty by his deputies, the Ohio court held that where an official duty was to be performed, and when the sheriff placed an automobile at ths disposal of his deputy, as an instrumentality to be used by him in the performance of such duty, and the latter used such instrumentality unlawfully so that it injured the plaintiff in the course of such use, there was official misconduct within the meaning of the statute.

Section 19-25-19, Mississippi Code Annotated (1972), provides that “ . All sheriffs shall be liable for the acts of their deputies, and for money collected by them. . . . ” An automobile is as necessary and essential to the operation of a sheriff’s office and in performing the duties thereof as a gun, uniform, badge, handcuffs and other equipment. Without it, there could be no efficient discharge of such duties. We hold that when a deputy sheriff negligently uses such an instrumentality (automobile) furnished him for official use and used by virtue of or under color of his office, or in his official position as deputy sheriff, then the sheriff is liable to a person injured as a proximate result thereof.

In considering whether a demurrer to a declaration should be sustained, all facts alleged, together with those facts which are reasonably or necessarily implied from the facts so stated, must be considered as true. If the declaration contains sufficient matter of substance for the court to proceed upon the merits of the cause, it shall be sufficient and no' other pleadings will be considered. Kitchens v. Barlow, 250 Miss. 121, 164 So.2d 745 (1964); North Carolina Mutual Life Ins. Co. v. Green, 186 Miss. 377, 188 So. 556 (1939); Conroy v. Breland, 185 Miss. 787, 189 So. 814 (1939); Ross v. Louisville & N. R. Co., 178 Miss. 69, 172 So, 752 (1937).

In applying that principle to the declaration before us, we are of the opinion that it states a cause of action against the sheriff, that the trial judge erred in sustaining the demurrer and in dismissing the declaration, and the case must be, and it is reversed and remanded for a trial on the merits. Presiding Justice Patterson and Justices Sugg, Walker and Broom concur with Part I. Chief Justice Gillespie, Presiding Justice Inzer and Justices Smith and Robertson dissent as to Part I.

Part II.

GILLESPIE, Chief Justice,

for the Court:

The bond on which suit was brought in this case is required by Mississippi Code Annotated section 19-25-1 (1972), and is conditioned as provided by the general statute covering public officers, section 25-1-15, the condition being “if he shall faithfully perform all the duties of said office during his continuance therein, then the obligation to be void.” This bond is conditioned that the sheriff will “faithfully discharge the duties of the office.” In the same chapter on sheriffs requiring the fidelity bond, the Code provides in section 19-25-13 that “[t]he budget [sheriff’s] shall include amounts for compensating the deputies and other employees of the sheriff’s office for insurance providing protection for the sheriff and his deputies in case of disability, death, and other similar coverage, for travel and transportation expenses of the sheriff and his deputies. . . . ”

It was not intended by the Legislature that this bond was to serve as an automobile liability policy, else it would not have provided in another section that the budget of the sheriff “shall include amounts for insurance protection of the sheriff and his deputies.”

Nearly all officials, local and state, take the same constitutional oath to faithfully perform the duties of their office and most are required to furnish bonds conditioned the same as that of the sheriff. If the surety on the sheriff’s bond is to be liable, then all other public officials’ bonds would logically be held to be liable for the negligent acts of a subordinate driving the official car or a publicly owned vehicle on official business.

In discussing the liability of a sheriff’s surety for the acts of the sheriff’s subordinates. the annotation, supra, states:

Generally speaking, even though a sheriff is personally liable for an act of his deputy, it does not necessarily follow that his bondsman is also liable. The latter’s liability is, of course, limited by the language of the bond, and if such language cannot be construed to impose liability on the surety in the situation where the principal is successfuly sued for the acts of a subordinate, the surety will escape. 15 A.L.R.3d at 1201.

The statute makes it mandatory that the budget of the sheriff shall provide insurance protection to the sheriff and his deputies. This protection obviously runs in favor of the injured person. This being so, there is no valid reason for making the sheriff’s'bondsmen to be liable for automobile accident liability.

There has not been any previous case in this State, holding that the surety on a sheriff’s bond (which merely requires that the sheriff faithfully execute the laws) is liable for negligent acts which are committed by a deputy sheriff while he is on his way to investigate or to perform a law enforcement function. It follows that construction of the bond to make the surety liable in automobile accident cases would be an unconstitutional impairment of the plain words of the contract the surety entered into when writing the bond.

We therefore hold that as to the United States Fidelity and Guaranty Company, the trial court properly sustained the demurrer.

Our decision in holding that the surety bond is not an automobile liability policy seems to be in accord with the weight of authority in the country. Gray v. DeBretton, 192 La. 628, 188 So. 722 (1939); Aetna Casualty & Surety Co. v. Clark, 136 Tex. 238, 150 S.W.2d 78 (1941).

To read into the bond liability for the operation of an automobile enlarges the liability to an extent not heretofore recognized and without any words in the bond itelf providing for such liability. This Court held in Wisconsin Lumber Co. v. State, 97 Miss. 571, 54 So. 247 (1911), that a contract cannot be impaired either by subsequent legislation “or decision of its courts altering the construction of the law.”

The case is reversed and remanded for a trial against the defendant, Lewis Q. Brunt, and is affirmed as to United States Fidelity & Guaranty Company. Presiding Justice Inzer and Justices Smith, Robertson, and Sugg concur as to Part II of this opinion. Presiding Justice Patterson and Justices Walker, Broom, and Lee dissent as to Part II of this opinion.

REVERSED IN PART; AFFIRMED IN PART, AND REMANDED.

PATTERSON, P. J., and SUGG, WALKER and BROOM, JJ., concur with Part I.

GILLESPIE, C. J, INZER, P. J., and SMITH and ROBERTSON, JJ., dissent.

INZER, P. J., and SMITH, ROBERTSON and SUGG, JJ., concur with Part II.

PATTERSON, P. J., and WALKER, BROOM and LEE, JJ., dissent as to Part II.

      . “(2) Any authorized emergency vehicle may be equipped with a siren, whistle, or bell, capable of emitting sound audible under normal conditions from a distance of not less than five hundred feet and of a type approved by the department. No such siren shall be used execpt when such vehicle is op-perated in response to an emergency call or in the immediate pursuit of an actual or suspected violator of the law, in which said latter events the driver of such vehicle shall sound such siren when necessary to warn pedestrians and other drivers of the approach thereof.” Miss.Code Ann. § 63-7-65(2) (1972).


text:
    Frank HART v. STATE of Mississippi.
    No. 49395.
    Supreme Court of Mississippi.
    Nov. 2, 1976.
    Prewitt, Braddock & Varner, John W. Prewitt, Vicksburg, for appellant.
    A. F. Summer, Atty. Gen. by Pete J. Cajoleas, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before INZER, P. J., SMITH and BROOM, JJ., and DUNN AM, Commissioner.
   AFFIRMED.


text:
    DELTA BUILDING MATERIAL COMPANY v. DELTA NATIONAL BANK OF YAZOO CITY and Ernest C. Foster.
    No. 48939.
    Supreme Court of Mississippi.
    Nov. 2, 1976.
    Robertshaw & Merideth, Philip B. Ter-ney, Greenville, for appellant.
    Henry, Barbour & DeCell, Herman B. DeCell, J. H. Hogue, Jr., Yazoo City, for appellee.
    Before INZER, P. J., and SMITH and BROOM, JJ.
   AFFIRMED.


text:
    The MARKHAM COMPANY TRACERS, INC. v. Mrs. Nona H. McWILLIAMS.
    No. 48923.
    Supreme Court of Mississippi.
    Nov. 2, 1976.
    Rushing & Guice, Jacob D. Guice, Biloxi, for appellant.
    Eaton, Cottrell, Galloway & Lang, James B. Galloway, Gulfport, for appellee.
    Before INZER, P. J., and SMITH and BROOM, JJ.
   AFFIRMED.


text:
    MID-STATE HOMES, INC. v. Borden P. WILLIS et ux.
    No. 48928.
    Supreme Court of Mississippi.
    Nov. 2, 1976.
    Guy, Dowdy & Smith, C. Wayne Dowdy, McComb, for appellant.
    Levi, Wilson & Denham, Dempsey M. Levi, Pascagoula, for appellee.
    Before INZER, P. J., and SMITH and BROOM, JJ.
   AFFIRMED ON DIRECT AND CROSS-APPEALS.


text:
    Eddie WELLS v. STATE of Mississippi.
    No. 49416.
    Supreme Court of Mississippi.
    Nov. 2, 1976.
    John T. Jacks, Jackson, for appellant.
    A. F. Summer, Atty. Gen. by Karen Gil-foy, Asst. Atty. Gen., Jackson, for appellee.
    Before INZER, P. J., and SMITH and BROOM, JJ.
   AFFIRMED.


text:
    Jimmy Lee CURRY v. STATE of Mississippi.
    No. 49415.
    Supreme Court of Mississippi.
    Nov. 2, 1976.
    Howie, Montgomery & Montjoy, Gid Montjoy, IV, Overstreet & Kuykendall, Minor C. Sumners, Jr., Jackson, for appellant.
    A. F. Summer, Atty. Gen. by Wayne Snuggs, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before INZER, P. J., and SMITH and BROOM, JJ.
   AFFIRMED.

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


text:
    Troy L. MORGAN et ux. v. W. R. COKER et ux.
    No. 48586.
    Supreme Court of Mississippi.
    Nov. 2, 1976.
    Fred L. Cooper, Columbia, for appellants.

      Dale & Upton, Sebe Dale, Jr., Columbia, for appellees.
    ■Before PATTERSON, P. J., and SUGG and WALKER, JJ.
   REVERSED AND APPELLANTS DISCHARGED.

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

BROOM, J., took no part in this decision.


author: NEAL B. BIGGERS,

text:
    George TINDALL et ux. v. CITY OF LOUISVILLE.
    No. 48909.
    Supreme Court of Mississippi.
    Nov. 2, 1976.
    Fair & Mayo, James Mayo, Louisville, for appellants.
    Deramus & Strickland, John W. Chapman, Louisville, for appellee.
    Before GILLESPIE, C. J., ROBERTSON and LEE, JJ., and NEAL B. BIGGERS, Commissioner.
   NEAL B. BIGGERS,

Commissioner, for the Court:

George Tindall and wife appeal from a judgment of the Circuit Court of Winston County, Mississippi, affirming the order of the Mayor and Board of Aldermen of the City of Louisville, Mississippi, denying their petition to rezone their property from residential to commercial.

The property of the appellants sought to be rezoned has a frontage of 190 feet on the east side of South Church Street, sometimes referred to as Highway 15. The Tindall property is approximately 170 feet deep, being bounded on the north side by Oak Street and on the South side by the Grunt Mitchell property. Immediately south of the Mitchell property on the same side of South Church Street is Mitchell Small Engine Service, and south of that is Sonny’s Furniture Company. South of Sonny’s is a residence and then Pine Street.

At the hearing on the petition to rezone, Tindall testified that if the property were rezoned he would put a ear wash service on it, and if space permitted he would probably rent the additional space to a lessee interested in constructing a car lot and barber shop.

After hearing the testimony of the witnesses in favor of rezoning and those against, the Mayor and Board of Aldermen voted to deny the request to rezone.

Prior to the appeal being heard by the Circuit Court, the City of Louisville granted a petition to rezone from residential to commercial the Marshall “Grunt” Mitchell property, which adjoined appellants’ property on the south. Upon learning of this action by the City, the appellants asked for and were granted a rehearing on their petition. After reconsidering the matter the Board of Aldermen voted three to two in favor of granting the appellants’ request to rezone. However, the City was of the opinion that Mississippi Code Annotated section 17-1-17 (Supp.1976), applied and that the Tindall property still should not be rezoned. Section 17-1-17 provides in part:

“In case of a protest against such change signed by the owners of twenty percent (20%) or more, either of the area of the lots included in such proposed change, or of those immediately adjacent to the rear thereof, extending one hundred sixty (160) feet therefrom or of those directly opposite thereto, extending one hundred sixty (160) feet from the street frontage of such opposite lots, such amendment shall not become effective except by the favorable vote of two-thirds (%) of all the members of the legislative body of such municipality or county.”

The record does not reflect that the objecting landowners come within the category of owners described in Section 17-1-17, nor does the record reflect that the number of owners signing the protest constituted twenty per cent or more of the owners within the boundaries prescribed by the statute.

If a city is going to rely on that provision of Section 17-1-17 requiring more than a majority vote to rezone property, the burden is upon the city to affirmatively prove that 20% or more of the protesting landowners fit within that class of landowners outlined in the statute and must make a special finding to that effect in its Order denying the rezoning. Since the ap-pellee City failed to meet this burden, a majority vote of the Board would be sufficient to require rezoning of the property.

The court is of the opinion that the appellants’ property should be rezoned for the additional reason that after the appellee rezoned the Mitchell property immediately south of and adjoining the appellants’ property, it left the appellants’ property isolated between three commercial lots immediately to its south and Oak Street on the north. For this reason and the fact that the neighborhood is becoming largely commercial, as reflected in the record, this Court is of the opinion that the refusal to rezone the appellants’ property from residential to commercial was an arbitrary and capricious action of the Board and is not supported by the evidence.

The judgment of the Circuit Court is reversed, and the prayer of the petition will be granted rezoning the appellants’ property from residential to commercial.

REVERSED AND RENDERED.

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

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


author: WILLIAM H. BIZZELL,

text:
    Marilyn MADDEN et al. v. Marcella A. MADDEN.
    No. 48875.
    Supreme Court of Mississippi.
    Nov. 2, 1976.
    William E. Andrews, Jr., Purvis, for appellants.

      Jones & Hayden, James R. Hayden, Hat-tiesburg, for appellee.
    Before INZER, P. J., SMITH and BROOM, JJ., and BIZZELL, Commissioner.
   WILLIAM H. BIZZELL,

Commissioner, for the Court:

This is an appeal from a decree of the Chancery Court of Lamar County relative to the custody of a child.

This cause arose from a petition for writ of habeas corpus filed by appellee wife against appellant husband, after their separation, seeking custody of her child then almost four years old. The petition alleged that appellant husband was not the father of the child. After a hearing the chancellor granted custody to the petitioning mother, and included in the decree an adjudication that appellant husband was not the father of the child.

The parties were married in Texas on May 30, 1970. The child was born seven months later, on December 31,1970. There is no evidence of an unusual gestation period. The parties separated in Tennessee about October 1970, and appellant husband obtained a divorce in Tennessee on January 18, 1971. The parties thereafter remarried on May 17, 1972. This litigation occurred immediately after their October 1974 separation in Lamar County, Mississippi.

Appellee testified that she and appellant engaged in sexual relations prior to their first marriage. She says that they met in late April, eight months or more prior to the birth. Appellant husband says that they met in March, nine months or more prior to the birth. Appellee wife testified that prior to meeting appellant she had relations with another named man, now deceased, and that she was pregnant as a result of that relationship.

The remaining evidence tended to confirm that appellant husband was the father. At the birth of the child in Texas, appellee mother gave appellant’s name as the father, and the birth certificate is in regular form' showing the parties as parents. One of the names given the child by appellee was “Wayne”, appellant’s name by which she called him. The record contains a baby book entitled “Baby’s Story,” in which the entries were made primarily by appellee. In this book appellant is listed as the father, his parents are listed as paternal grandparents, and there is an entry showing that the child’s first travels included a trip by plane from “Houston, Texas to New Orleans to meet daddy for the first time.” The child was routinely referred to as the child of appellant for income tax purposes, hospital insurance, military dependency, and veteran’s benefits. The child spent some time in the home of appellant’s parents, and appel-lee executed a power of attorney to enable them to authorize medical care at Keesler Field. The child recognizes appellant as its father, and appellant has treated the child as being his. Appellant testified that he believed the child to be his. Except for appellee’s testimony, the record contains no indication that she ever denied that appellant was the father until the filing of this petition for writ of habeas corpus.

The only substantial evidence against appellant, other than the testimony of appel-lee, was that when he filed suit for divorce in Tennessee in October 1970, he alleged that “no children have been born to this union.” This was technically correct. The Tennessee divorce decree dated January 18, 1971, made no mention of any child. Appellant testified that he did not learn of the child’s birth until after the divorce. Appellant thereafter went into military service and did not seek out appellee or the child, and did not see the child until it was 17 months old. Meanwhile, there had been some correspondence between them, and promptly after their meeting again in 1972 they remarried.

The presumption that a child born in wedlock is a legitimate child is one of the strongest presumptions known to law. Krohn v. Migues, 274 So.2d 654 (Miss.1973). Although the presumption is rebuttable, it has been held that a husband denying paternity of a child born in wedlock must prove beyond reasonable doubt that he is not the father. Stone v. Stone, 210 So.2d 672 (Miss.1968). The facts in Stone illustrate the real strength of the presumption, even in the face of medical testimony. The presumption applies even though the child was conceived prior to the marriage. Ervin v. Bass, 172 Miss. 332, 160 So. 568 (1935); 10 Am.Jur.2d Bastards § 13. Divorce or separation before birth of the child may be a circumstance lessening the presumption, but it does not destroy it. Moore v. Smith, 178 Miss. 383, 172 So. 317 (1937); 10 Am. Jur.2d Bastards § 15.

The presumption of legitimacy of a child born in wedlock is primarily for the benefit of the child, although it may also be a protection to the mother. We hold that this presumption is applicable against the mother equally as against the husband. Although the testimony of the mother in a paternity case may be given great weight, it cannot be considered conclusive. Significant facts here are that (1) there is a real question as to the exact time of first sexual relations between these parties, (2) there has been a long period of clear acknowledgment by both parties, (3) the mother’s claim of illegitimacy was made as a means of more certainly getting custody of her child as against the husband, and (4) the four year old child who will bear the primary hurt of this decision was not a party and was not represented. In the face of these facts, it is manifest error to hold that appellant’s paternity is disproven beyond a reasonable doubt.

The decree below is reversed insofar as it found that appellant is not the father of the child in question. The cause is remanded for further consideration of custody based upon the best interest of the child. Custody may be determined in this cause, or more properly in the divorce proceeding in the same court.

REVERSED AND REMANDED.

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

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


author: JAMES E. BOST,

text:
    Vickie Mechelle PALMER, a minor, by Dorothy Jean Palmer, next friend, v. J. Lee MANGUM.
    No. 48829.
    Supreme Court of Mississippi.
    Nov. 2, 1976.

      Charles H. Ramberg, Brandon, for appellant.
    McKinley, Zebert & McHann, Thomas L. Zebert, Pearl, for appellee.
    Before GILLESPIE, C. J., ROBERTSON and LEE, JJ., and JAMES E. BOST, Commissioner.
   JAMES E. BOST,

Commissioner, for the Court:

Vickie Mechelle Palmer, a minor, by next friend filed in the Chancery Court of Rankin County her petition for child support against J. Lee Mangum. The petition was styled “Vickie Mechelle Palmer, a minor, by Dorothy Jean Palmer, Next Friend”, and was brought under the provisions of Mississippi Code Annotated section 93-9-9 (1972). The petition averred that Vickie was born to Dorothy Jean Palmer, March 24, 1968, and that J. Lee Mangum was the natural father, and concluded with a prayer that J. Lee Mangum be declared the father of Vickie and ordered to pay child support.

Mangum answered, and also demurred, urging that Section 93-9-9 prohibits the bringing of an action by the mother after the child has reached the age of one year, except upon certain conditions therein set out and not applicable in this case. The demurrer was sustained, Petitioner declined to plead further, and appeal was perfected.

Appellant contends that the court erred in sustaining the demurrer for these reasons:

(1) Under the Mississippi Uniform Law on Paternity, a suit brought by a minor by Next Friend is a suit by the minor and not a suit by the next friend; and

(2) Under the aforesaid Uniform Law, a minor may maintain an action against her father for child support.

We hold that this action was brought by the minor, not by the mother. Because of her tender years, the suit had to be instituted by a friend, and in this case, the friend was the natural mother. We reject the appellee’s argument that by virtue of her appearance as next friend the mother was the real party in interest. The status of the mother as next friend was clearly set forth in the petition, and we find no prohibition against her appearance in that capacity.

While Section 93-9-9 limits the time during which the mother may commence proceedings thereunder to one year following birth of the child, the child is not subject by that Section to such limitation. This Court in Sandifer v. Womack, 230 So.2d 212 (Miss.1970), citing Dunn v. Grisham, 250 Miss. 74, 157 So.2d 766 (1963), held that the one-year limitation imposed by Section 93-9-9 was a restriction on the right of the mother only. Thus, a minor may bring a suit for support against his putative father after the minor has attained the age of one year. This is true without regard to whether the child has become a dependent child under the law so that the welfare department is required to provide support.

We are of the opinion that the trial court erred in sustaining the demurrer of the appellee. The judgment is accordingly reversed and this cause remanded for a hearing on the merits.

REVERSED AND REMANDED.

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

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


author: SUGG, Justice,

text:
    Billy Glen BILES v. STATE of Mississippi
    No. 49179.
    Supreme Court of Mississippi.
    Nov. 2, 1976.
    Bernard Gautier, Pascagoula, for appellant.
    A. F. Summer, Atty. Gen., by Billy L. Gore, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before INZER, SUGG and LEE, JJ.
   SUGG, Justice,

for the Court.

Billy Glen Biles was convicted of capital murder and sentenced to death by the Circuit Court of Jackson County.

The evidence on behalf of the State was sufficient to support a conviction for murder but was not sufficient to support a conviction for capital murder because the proof did not show beyond a reasonable doubt that the defendant murdered Henry Muller while engaged in the commission of the crime of kidnapping. Mississippi Code Annotated section 97-3-19(2)(e) (Supp. 1975).

The indictment for capital murder in this case is sufficient to charge defendant with murder as a lesser included offense.

In Jackson v. State, 337 So.2d 1242, rendered October 5, 1976, we held a jury may be instructed in a capital murder case that it may find a defendant guilty of a lesser included offense. Since a jury may be instructed in a capital murder case that it may find a defendant guilty of a lesser included offense when such instruction is justified by the evidence, the following rule which is well established in our jurisprudence is applicable. A jury verdict may be affirmed as to guilt, but the case remanded for. resentencing when the proof is not sufficient to sustain a conviction for the crime charged, but is sufficient to sustain a conviction for a lesser included offense. Wells v. State, 305 So.2d 333 (Miss.1974) and cases cited therein.

We therefore reverse the conviction of capital murder and remand for resentenc-ing for murder.

CAPITAL MURDER CONVICTION REVERSED AND REMANDED FOR RE-SENTENCING FOR MURDER.

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

      . The charging part of the indictment is as follows:
      [U]nlawfully, wilfully, feloniously, and of his malice aforethought did, then and there, kill and murder one Henry Muller a human being, while he, the said Billy Glen Biles, was then and there engaged in the commission of kidnapping the said Henry Muller by forcing the said Henry Muller to drive him, the said Billy Glen Biles, at gunpoint, and do his bidding, in violation of Section 97-3-19(2)(e) of the Mississippi Code of 1973, as amended . . .


text:
    Calvin Joe ROGERS v. STATE of Mississippi.
    No. 49222.
    Supreme Court of Mississippi.
    Nov. 2, 1976.
    Anderson, Banks, Nichols & Stewart, Jack H. Young, Jr., Phillip J. Brookins, Reuben V. Anderson, Jackson, for appellant.
    A. F. Summer, Atty. Gen., by Wayne Snuggs and John C. Ellis, Sp. Asst. Attys. Gen., Jackson, for appellee.
    Before INZER, SUGG and LEE, JJ.
   SUGG, Justice,

for the Court:

Defendant was convicted of capital murder and sentenced to death by the Circuit Court of the First Judicial District of Hinds County. His conviction and sentence must be set aside under our holding in Jackson v. State, 337 So.2d 1242, decided October 5, 1976.

Defendant testified on the motion to suppress his confession that he was arrested by several officers. The only officer that he recognized was Officer Sweeney. He stated that the officers took him to jail and did not question him until he had been in jail for about thirty minutes. He stated that an officer whom he guessed to be Lt. Cumberland told him they were investigating the crime where the Seals were killed and asked him where the gun was. In response he told the officer where the gun was located. He testified that at this time he had not been advised of his rights. He also said Lt. Cumberland told him that other co-defendants had confessed and in addition, Lt. Cumberland stated: “If you tell me what happened we might be able to help you not to get the death penalty.” He was not certain Lt. Cumberland was the officer who made this statement to him, but that he confessed because he thought the officer might be able to help him.

The State’s testimony showed that the defendant was interrogated by Lt. Coulter rather than Lt. Cumberland and in the course of his testimony Lt. Coulter stated that he advised the defendant of his rights under Miranda before he questioned the defendant; that he was the only person who interrogated the defendant and defendant understood his right to remain silent, etc. On direct examination Lt. Coulter said that other officers may have been in and out of the room during the interrogation but he did not recall who they were.

Lt. Cumberland testified that, when the defendant was arrested, he told the investigator in his (Lt. Cumberland’s) presence that he had given the pistol, which was introduced in evidence, to Ricky Devine. He also stated that Investigator Coker and Investigator Ben Shearer were present when defendant made his statement about the pistol.

Investigator Coker was called as a witness but did not testify about his knowledge of defendant’s interrogation and Investigator Ben Shearer was not called as a witness. The rule in Agee v. State, 185 So.2d 671 (Miss.1966) was not followed; therefore, it was error to admit the confession in evidence. On retrial Officers Coker and Shearer should be called as witnesses and questioned about defendant’s interrogation.

REVERSED AND REMANDED FOR TRIAL IN ACCORDANCE WITH OPINION RENDERED OCTOBER 5, 1976, IN NO. 49,178, JACKSON v. STATE, 337 So.2d 1242.

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