text:
    Jacquelyn CALDWELL v. A. Mark PARKER, M.D., et al.
    No. 7758.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 14, 1976.
    Rehearing Denied Jan. 12, 1977.
    Writ Refused March 18,1977.

      Edmond R. Eberle, New Orleans, for plaintiff-appellant.
    McGlinchey, Stafford, Mintz & Hoffman, C. G. Norwood, Jr., New Orleans, for defendant-appellee, Hotel Dieu Hospital.
    Lemle, Kelleher, Kohlmeyer & Matthews, H. Martin Hunley, Jr., John M. Sartin, Jr., New Orleans, for defendants-appellees, Dr. Thomas J. Garvey, Jr., and St. Paul Fire and Marine Ins. Co.
    Wiedemann & Fransen, A. Remy Fran-sen, Jr., Raul R. Bencomo, New Orleans, for defendants-appellees, Dr. A. Mark Parker and Dr. Joseph F. Guenther.
    Before REDMANN, GULOTTA and BEER, JJ.
   GULOTTA, Judge.

This litigation resulted from the death of a prematurely-born infant. Plaintiff, the mother of the child, appeals from an adverse jury verdict resulting in the dismissal of her medical malpractice suit against the attending obstetricians, the treating pediatrician and the hospital. We affirm.

The facts are that the 19-year-old plaintiff was first examined by an obstetrician, Dr. Joseph Guenther, on September 12, 1972. He performed a full pelvic examination and determined that plaintiff was three months pregnant with an anticipated delivery date of March 16, 1973. On November 6, 1972 (following office visits on October 5 and 26), a second pelvic examination was made because of plaintiff’s complaints of leaking fluid and of back pain. According to Dr. Guenther, this examination disclosed no complications, other than a mucous discharge for which medication was prescribed.

Thereafter, on November 16, 1972, plaintiff w^ given a third pelvic examination after complaints were made of a continued loss of fluid. Again, the obstetrician discerned no serious complications. The doctor attributed the “leaking fluid” to an inflammation of the cervix which he treated with silver nitrate. Plaintiff returned home, but after 9:00 p. m. the same day, she was taken to the Hotel Dieu emergency room by members of her family after she complained of acceleration of the leakage, stomach cramps, bleeding and passage of tissue.

Subsequent to her arrival at the hospital, plaintiff was given a pelvic examination by Dr. A. Mark Parker, an obstetrician and associate of Dr. Guenther. His examination revealed irritation of the cervix, but did not indicate symptomatology of impending labor. The cervix was closed; there was no evidence of water bag leakage; and there were no abdominal contractions. According to Dr. Parker, plaintiff was not hemorrhaging and any evidence of bleeding resulted from the cervix problem and was not indicative of premature labor. The patient was permitted to return to her home.

On the following morning, November 17, at approximately 8:45 a. m., plaintiff gave medically-unattended birth at home to a premature, 1 lb., 9 oz. baby. Shortly thereafter, plaintiff was taken by emergency vehicle to Hotel Dieu. The infant remained in the hospital until its death at 6:45 p. m. on November 19, 1972, some 58 hours after it was born.

Plaintiff seeks damages on her own behalf for mental anguish, anxiety and aggravation of a pre-existing health problem and damages for the wrongful death of the child.

The jury concluded that the obstetricians, Guenther and Parker, were not guilty of medical malpractice. It did find, however, that Dr. Thomas J. Garvey, Jr., the pediatrician who attended the child after its birth, was guilty of malpractice and that Hotel Dieu was guilty of negligence. (We here interject that an appearance of indifference towards the inevitable death of a non-viable fetus may have been the jury’s basis for the findings of malpractice and negligence.) The jury further concluded, however, that neither Garvey’s malpractice nor Hotel Dieu’s negligence was “the proximate cause of the death”. Based on the jury’s findings, the trial judge dismissed the action as to all defendants.

We reject plaintiff’s contention that the jury verdict must be set aside because the wording of the interrogatories submitted to the jury erroneously required a finding that the malpractice of the pediatrician or the negligence of the hospital constituted “the” proximate cause of the death of the child. While acknowledging that the judge’s oral instructions to the jury charged that there may be more than one proximate cause of the death, plaintiff, nevertheless, argues that the interrogatories, in conformity with this charge, should have required only a finding by the jury that the malpractice was “a” proximate cause of the death, and not “the” proximate cause of the death. It is true, as pointed out by plaintiff, that the interrogatory is, taken alone, an incorrect statement of the law. However, the jury was supplied with the correct statement of law on proximate cause by the trial judge. The trial judge specifically instructed the jury to take the law as given by him in the charge. Under the circumstances, we cannot conclude that the erroneous interrogatory on proximate cause led to confusion in the minds of the jurors. Quite to the contrary, the length of time of the deliberation (8 hours) and the inquiry made to the trial judge, during deliberation, for a redefinition of “evidence” leads to a conclusion that the jury was not shy but discerning. We might add that no request was made, during deliberation, for clarification of the law on proximate cause.

While not resting our decision on the failure of plaintiff to object to the specific wording of the interrogatory in the trial court, we conclude further that plaintiff has waived her right to raise an objection in this court. LSA-C.C.P. art. 1793 provides in pertinent part:

“A party may not assign as error the giving or the failure to give an instruction unless he objects thereto before the jury retires to consider its verdict, stating specifically the matter to which he objects and the grounds of his objection. * * * ” (emphasis ours)

See also: Troxlair v. Illinois Central Railroad Company, 291 So.2d 797 (La.App. 4th Cir. 1974), writ refused, 294 So.2d 834 (La. 1974); Mones v. Walton, 296 So.2d 370 (La. App. 4th Cir. 1974), writ refused, 300 So.2d 185 (La.1974). Such a specific objection would have afforded the trial judge the opportunity to rectify any error. Plaintiff’s blanket objection to the failure of the court to submit the special interrogatories submitted by plaintiff does not state specifically “the matter to which he objects and the grounds of his objection”, i. e., the judge’s use of the word “the” instead of “a”.

We further reject plaintiff’s claim that the interrogatories were deficient because they failed to include the jurispruden-tially-accepted criteria for the determination of malpractice by doctors and nurses. In his charge to the jury, the judge correctly stated the law relative to malpractice; and, in any event, plaintiff has waived her right to object.

We also disagree with plaintiff’s contention that the trial judge fell into error when he refused to permit plaintiff’s medical expert, Dr. James Storer, to testify on the standards of pediatric care in this community in 1972. Though Dr. Storer was qualified as a neonatologist, his pretrial deposition and his testimony disclosed that he had been at Duke University pursuing his studies during. November, 1972, and by his own admission, was not competent to give testimony as to the customary standard of care among New Orleans pediatricians at that time. Dr. Storer was permitted to testify before the jury relative to the mortality rates of prematurely-born babies. We conclude, therefore, that the trial judge correctly limited the scope of this expert’s testimony.

Finally, we reject plaintiff’s contention that the findings of the jury exonerating the obstetricians and failing to find causation (with regard to the pediatrician and the hospital) were manifestly erroneous. Drs. Guenther and Parker testified that no symptoms of impending premature labor were revealed by their numerous pelvic examinations of plaintiff. They testified that examinations on November 16 indicated that there was no leakage of amniotic fluid, that the cervix was completely closed and that plaintiff was not experiencing contractions. In response to a hypothetical question based on the facts as testified by the obstetricians, Dr. John H. Dent, a pediatrician and pathologist, stated that there “was no indication of premature labor”. The record supports the jury’s finding that the obstetricians were not guilty of malpractice.

The record also supports the conclusion that neither any malpractice on the part of the pediatrician nor any negligence on the part of the hospital was a proximate cause of the death of the child. Based on plaintiff’s medical history relating to the pregnancy and upon Dr. Garvey’s physical examination of the child after its birth, the gestational age of the infant was estimated to be approximately 21-23 weeks. None of the medical experts had ever encountered a report of a child of the age and weight of the Caldwell infant who survived. Recognized studies by neonatal authorities, which were referred to in the testimony of the experts, revealed that the chances for survival of a child such as the Caldwell baby were virtually nonexistent. We conclude, therefore, that the record supports the jury’s findings that plaintiff failed to establish causation between the pediatrician’s malpractice and the hospital’s negligence (if any) and the death of the child.

The judgment of the trial court is affirmed.

AFFIRMED.

      . The judge stated in his charge:
      “I further charge you that a physician . . is not required to exercise the highest degree of skill and care possible.
      “As a general rule, it is his duty to exercise the degree of skill ordinarily employed under similar circumstances by the members of his profession in good standing in the community or locality, and to use reasonable care and diligence along with his best judgment in the application of his skill to the case.”


source: Caselaw Access Project

author: BOUTALL, Judge.

license: Public Domain

text:
    ALLSTATE INSURANCE COMPANY v. LOUISIANA GAS SERVICE COMPANY.
    No. 8241.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 14, 1976.

      Rudolph R. Schoemann, New Orleans, for Allstate Ins. Co. and William C. Coughran, plaintiff s-appellees.
    Monroe & Lemann, Andrew P. Carter, Eugene G. Taggart, George F. Riess, New Orleans, for Louisiana Gas Service Co., defendant-appellant.
    Before SAMUEL, GULOTTA and BOU-TALL, JJ.
   BOUTALL, Judge.

This is a motion to dismiss a suspensive appeal because of late filing of Appeal Bond.

The facts are that appellant Louisiana Gas Service Company filed a suspensive appeal from a money judgment and furnished bond in the amount of IV2 times the principal amount only. Plaintiff-Appellees filed in the District Court a rule to declare the bond insufficient and the District Court by judgment dated February 24, 1976 ordered appellant to furnish a new or supplemental bond in a substantially greater amoun,t, to-wit, the sum of ONE HUNDRED SIXTY-

SEVEN THOUSAND, FIVE HUNDRED AND SEVENTY DOLLARS AND THIRTEEN CENTS. The supplemental bond was not filed until March 9, 1976.

Although the judgment itself is silent as to the time for filing the supplemental bond, C.C.P. Article 5124 requires that the new or supplemental bond be filed within four days, exclusive of legal holidays, of the rendition of judgment holding the original bond insufficient or invalid. Thus, the bond filed March 9 comes too late. A sus-pensive appeal is only perfected by the timely filing of a suspensive appeal bond, and since this bond was not timely filed, the suspensive appeal must be dismissed. See Loyal Investment Corporation v. Danos, 278 So.2d 152 (La.App. 4th Cir. 1973).

Although the suspensive appeal is dismissed, our appellate courts have recognized in instances such as these, that a devolutive appeal still exists. See Weber v. McMillan, 277 So.2d 470 (La.App. 4th Cir. 1973); Faust v. Curtis, 278 So.2d 875 (La. App. 1st Cir. 1973).

In response to the motion to dismiss, appellee has filed in this court an exception of prescription which he urges us to consider before considering the motion to dismiss. This we cannot do. The exception filed will have to await our consideration of the merits of the appeal.

The motion to dismiss is maintained to the extent that the suspensive appeal herein is dismissed, but denied as permitting the appeal to remain as a devolutive appeal.

MOTION TO DISMISS MAINTAINED IN PART, DENIED IN PART.


author: CULPEPPER, Judge.

text:
    BALL MARKETING ENTERPRISE, Plaintiff and Appellee, v. RAINBOW TOMATO COMPANY et al., Defendants and Appellants.
    No. 5727.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 21, 1976.
    Edwards, Stefanski & Barousse by Homer E. Barousse, Jr., Crowley, for defendants-appellants.
    Robert P. Brenham, Lafayette, for plaintiff-appellee.

      Before CULPEPPER, WATSON and GUIDRY, JJ.
   CULPEPPER, Judge.

This is a suit on an open account. Defendants are the debtor, Rainbow Tomato Company (Rainbow) and its alleged surety, Plant Industries, Inc. (Plant). The trial court rendered a judgment by default against both Rainbow and Plant declaring them liable to plaintiff “jointly and solidarily” for $11,069.78 due on the open account. Only the defendant Plant appealed.

The principal issue on appeal is whether a certain letter constitutes a continuing guarantee that Plant will pay the open account owed by Rainbow.

The letter, dated January 22, 1976, from Hyman Katz, Chairman of the Board of Plant Industries, Inc., addressed to Charles Goss of Ball Marketing Enterprises, states:

“Gentlemen:

“You have advised us that Rainbow Tomato Company, Inc. (‘Rainbow’) is indebted to you in the amount of $8,408.40 for deliveries of fuel oil made from December 19, 1975 through January 7, 1976. This will confirm our understanding with you that Plant Industries, Inc. will take such steps as are necessary to assure payment to you by Rainbow of amounts due for past and future deliveries of fuel oil to Rainbow, to the extent necessary for heating its greenhouses. (Emphasis supplied)
/s/ Hyman Katz Chairman of the Board”

Plaintiff describes this letter as a “continuing guaranty” obligating Plant to pay plaintiff amounts due for past and future deliveries of fuel oil to Rainbow.

In Louisiana, a contract of guaranty is equivalent to a contract of suretyship. The two terms are used interchangeably. American Bank & Trust Company v. Blue Bird Restaurant & Lounge, 279 So.2d 720 (La.App. 1st Cir. 1973), affirmed 290 So.2d 302 (La.1974). Therefore, we will look to the provisions of our Civil Code governing the contract of suretyship to test plaintiff’s assertion that the letter is a continuing guaranty.

LSA-C.C. Article 3035 defines the contract of suretyship:

“Suretyship is an accessory promise by which a person binds himself for another already bound, and agrees with the creditor to satisfy the obligation, if the debtor does not.”

LSA-C.C. Article 3039 explains:

“Suretyship can not be presumed; it ought to be expressed, and is to be restrained within the limits intended by the contract.”

A general rule which emerges from the substantial body of jurisprudence interpreting these provisions is that the surety’s contract need not observe technical formalities but must contain an absolute expression of intent to be bound. See Hubert, The Nature and Essentials of Conventional Suretyship, 13 Tul.L.Rev. 519, 525 to 526 (1939) and cases discussed therein. The letter from Plant to plaintiff does not contain an absolute expression of intent to pay Rainbow’s open account. It provides, instead, that Plant, “will take such steps as are necessary to assure payment * * * by Rainbow * * * The letter clearly contemplates payment by Rainbow, not Plant. If we were to presume otherwise, we would violate the express instructions of Article 3039: “Suretyship can not be presumed . . .Therefore, we hold that the letter did not bind Plant as a surety or guarantor.

Our holding is consistent with the bulk of the jurisprudence interpreting Article 3039 and is supported particularly by the decision of our Supreme Court in Exchange National Bank v. Waldron, 177 La. 1015, 150 So. 3 (1933). In Waldron, the alleged surety wrote a letter to the creditor stating “we are behind Mr. Waldron [the debtor] and are financing him and we feel that you are perfectly safe on this sort of a contract . .” The court held that this vague statement of support fell short of the stringent requirements set by Article 3039. Likewise, Plant’s promise to “take such steps as are necessary to assure payment” by Rainbow is insufficient to bind Plant as a surety or guarantor.

Plaintiff argues that the language of the letter is ambiguous and should, therefore, be construed against Plant, the party who drafted it. LSA-C.C. Articles 1957 and 1958. We do not agree. The critical part of the artfully drafted letter is unambiguous, in that it assures payment by Rainbow rather than Plant. Even if we were to agree that the letter is ambiguous, we could not presume that it creates a contract of suretyship. Articles 1957 and 1958 embody rules of general application which would yield in the present case to the special rule of construction laid down in Article 3039. The controlling rule is that a contract of suretyship cannot be presumed.

Having decided the principal issue, we move now to consideration of plaintiff’s second argument.

Attached to plaintiff’s original petition is a request for admissions under LSA-C.C.P. Article 1496, directing Plant to answer this question:

“Do you admit executing a continuing guaranty unto petitioner, Ball Marketing Enterprises, Inc., dated January 22, 1976, a copy of which is attached to this request for admissions?” (The previously quoted letter was attached.)

Plant did not answer this request. Plaintiff argues that by its failure to answer, Plant is deemed to have admitted executing a “continuing guaranty” agreement. LSA-C.C.P. Article 1496 is the authority cited in support of this contention.

We faced a similar argument in a nearly identical procedural setting in Vincent v. Lewis, 275 So.2d 414 (La.App. 3rd Cir. 1973). There, defendant answered neither plaintiff’s petition nor plaintiff’s request for admissions, and a judgment by default was rendered against him. Plaintiff contended that the defendant’s failure to timely answer the request for admissions amounted to a “confession” of judgment under LSA-C.C.P. Article 2085. We rejected this argument with the following passage from Voisin v. Luke, 249 La. 796, 191 So.2d 503 (1966), explaining the intended scope of Article 1496:

“[I]ts purpose is to eliminate the necessity of proving uncontroverted facts. It may not, therefore, be applied to a controverted legal issue lying at the heart of a case.” (Emphasis supplied) 275 So.2d 416.

The question of whether the letter constitutes a contract of suretyship (continuing guaranty) is the controverted legal issue lying at the heart of the present case. Therefore, Plant’s failure to answer is not deemed an admission that the letter constitutes a contract of continuing guaranty.

Plaintiff’s interpretation of Article 1496 not only contravenes its intended purpose, but also exceeds its authorization. A careful reading of the article reveals that it does not authorize a request for admission of a conclusion of law. Instead, the article authorizes only requests for admission of matters of fact and the genuineness of documents. To the extent the request seeks an admission of a conclusion of law, it exceeds the authorization granted by Article 1496. Under the circumstances, Plant’s failure to answer is merely an admission that the letter was written and signed by a representative of Plant. It is not an admission of the legal effect of the letter.

For the reasons assigned, the judgment appealed is reversed and set aside insofar as it holds Plant Industries, Inc. to be liable to the plaintiff. All costs of this appeal are assessed against the plaintiff.

REVERSED AS TO PLANT INDUSTRIES, INC.


author: GUIDRY, Judge.

text:
    Clarence Lee MOORE, Individually and on behalf of the minor, Vanessa Diane Moore, Plaintiff-Appellee, v. The SOUTHLAND CORPORATION and Travelers Insurance Company, Defendants-Appellants.
    No. 5728.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 21, 1976.
    Robert W. Fenet, Lake Charles, for defendants-appellants.
    Baggett, McClain & Morgan by Robert E. Morgan, Lake Charles, for plaintiff-appel-lee.
    Before CULPEPPER, WATSON and GUIDRY, JJ.
   GUIDRY, Judge.

Plaintiff, Clarence Lee Moore, filed this suit individually and on behalf of his minor daughter, Vanessa Diane Moore, seeking to recover damages allegedly incurred as a result of injuries sustained by his daughter when she slipped and fell in a self-service convenience store in Sulphur, Louisiana. The Southland Corporation is owner of the store and Travelers Insurance Company is the liability insurer of the premises.

The facts giving rise to this litigation are not seriously in dispute.

The grocery store in question is a self-service convenience store of average size and contains about eight aisles running generally north and south. There is a checkout counter located in the front or south side of the building. The store is tended by two employees during the day shift (7:00 a. m. to 3:00 p. m.) and by two employees during the evening shift (3:00 p. m. to 11:00 p. m.). Normal procedure requires one employee to man the checkout counter and the other to handle the meat counter located in the rear of the building (along the north wall).

On January 8, 1975, the store manager, Vernon Gott, and Elvin Nolen, a clerk, worked the day shift and Corbitt O’Neal and his son, David, worked the evening shift.

On the aforesaid date, shortly after 4:00 p. m., Vanessa Diane Moore and her mother, Burella, entered the store for the purpose securing certain needed items. By prearrangement each was to secure different items. Vanessa selected a 1 lb. can of coffee and then went to the aisle where the bread was displayed. As Vanessa approached the bread rack she reached for a loaf of bread and as she did so she slipped and fell backwards landing on her back. Vanessa was rendered unconscious. Mrs. Moore did not see her daughter fall, however, she was alerted as a result of the noise and immediately went to her daughter. Mrs. Moore knelt beside her daughter to minister to her and thereupon observed that her daughter’s hair and clothing were wet as a result of a clear, odorless, non-sticky liquid on the tile floor. When asked to estimate the amount of liquid present on the floor at the point where her daughter fell, Mrs. Moore suggested about one or two teacups full. At this point, someone in the store informed Corbitt O’Neal of the accident and he immediately went to the assistance of Mrs. Moore and her daughter. Mr. O’Neal testified that he too noticed a damp or moist spot on the floor near where Vanessa lay. An ambulance was then called and Vanessa were taken to West Calcasieu-Cameron Hospital for emergency treatment. Upon arrival at the hospital Vanessa was seen by a Dr. Bugg who after a thorough examination, including x-rays, released Vanessa to return home. Thereafter, Vanessa remained under the care of Dr. J. W. Ambrister as an outpatient until March 17, 1975.

The record contains no evidence regarding the identity .of or the quantity of the substance on the floor of the store other than the testimony of Mrs. Moore and the store employee, Mr. O’Neal. The other employee, David O’Neal, who was presumably in the store at the time of the accident did not testify. The trial court concluded that the substance on the floor was water.

Willy Gott, store manager, and Corbitt O’Neal, one of the employees on duty at the time of the accident, testified concerning the inspection and cleanup procedure followed at the store. Both testified that each evening between 7:00 p. ,m. and 8:00 p. m. the floor of the store was swept clean and thereafter wet mopped. Other than this general cleanup each evening the floor was cleaned only if something was spilled. There is no evidence in the record that the manager or the employees regularly inspected the aisles to determine if the floor and passageways were clean. The store manager, Mr. Gott, did testify that prior to leaving the store on the afternoon of January 8,1975 he inspected the floor and found it to be clean and free of any foreign substance, however, his testimony in this regard does not indicate that he made a careful inspection of all of the aisles and passageways. In this connection Mr. Gott testified as follows:

“Q. Before you departed for home from the store, what, if anything, did you do?
A. Well, you know, I take a general look-around to make sure everything is in good shape, and tell them what I need done, and then I leave.
Q. Would you describe to the Court what your general look-around consists of?
A. I look . . . because this is a thing that often happens. I look for . . . I go to the produce rack, which was then on the left-hand side, on the west side, we have produce box. I look for that, and then I look for other stuff that may have gotten on the floor. But, primarily, where my produce is, I look to make sure there’s nothing on the floor because that is . you know, that a dangerous thing to have on the floor, lettuce leaf and stuff like that. Of course, I’m you know, you may overlook it a day or so, but most of the time I take a general look to make sure everything is in . . (Tr. pages 280 and 281. Emphasis mine)

It is interesting to note that the bread rack, where the accident occurred, is located across the building from the produce bins.

After considering all of the evidence the trial court concluded that there was a foreign substance on the floor, i. e., water; it was not put there by Vanessa Moore and she did not see it; and, it caused her to slip, fall and injure herself. Having thus found the trial court determined pursuant to Kavlich v. Kramer, 315 So.2d 282 (La.1975) and Gonzales v. Winn-Dixie Louisiana, Inc., 326 So.2d 486 (La.1976) that the burden then shifted to the store owner to exculpate itself from negligence. We discern no manifest error in these findings.

The trial court next concluded that defendant’s inspection and cleanup procedures were inadequate and therefore, that it failed in its duty to protect customers from foreign substances on the floor. Accordingly, the trial court rendered judgment in favor of the plaintiff, individually, awarding special damages in the principal sum of $125.27 and general damages to plaintiff, on behalf of his minor daughter, Vanessa, in the principal sum of $2500.00. Defendant appealed and urges (1) that the trial court erred in failing hold that the inspection and cleanup procedures of defendant were reasonable; and, (2) in. awarding excessive general damages.

In Gonzales v. Winn-Dixie Louisiana Inc. (supra) our Supreme Court defined the duty of a store owner to protect customers from foreign substances on the floors, aisles and passageways, to be as follows:

“The duty of a store owner to protect his customers from foreign substances on the floor is one of reasonable care under the circumstances. Reasonable protective measures, including periodic inspections, must be taken to keep the aisles and floors free of substances or objects that may cause customers to fall. Kavlich v. Kramer, La., 315 So.2d 282 (1975); Tripkovich v. Winn-Dixie of Louisiana, Inc., La.App., 284 So.2d 80 (1973); Fontanille v. Winn-Dixie Louisiana, Inc., La.App., 260 So.2d 71 (1972), cert. denied, 261 La. 1064, 262 So.2d 44 (1972); Prosser, Law of Torts, § 61, pp. 392-393 (4th ed. 1971). The circumstances that determine the reasonableness of protective measures include the type and volume of merchandise, the type of display, the floor space utilized for customer service, the nature of customer service, and the volume of business. As we recently noted, the self-service grocery system requires customers to focus their attention on the shelves and to handled merchandise. The system increases the risk of harm from objects dropped on the floor by customers and, correspondingly, the duty to minimize the risk by frequent inspections and cleanups. See Kavlich v. Kramer, supra; Prosser, Law of Torts, § 56 p. 349 (4th ed. 1971).”

In the instant case, as aforestated, the accident occurred at 4:15 p. m. on January 8, 1975. The floor in defendant’s store was last cleaned some 20 hours before. There is no evidence in the record that the manager or employees regularly inspected the floors to determine if they were clean. The manager left the store some 45 minutes prior to the accident and upon his departure, admittedly, took only a “general look-around” to determine if everything was alright. Under these circumstances the trial court concluded that the defendant’s inspection and cleanup procedure was inadequate. We find no manifest error in this determination. There was evidence before the trial judge which furnished a reasonable factual basis for this conclusion. Canter v. Koehring Co., 283 So.2d 716 (La.1973).

Defendant finally complains that the trial court’s award of general damages is excessive.

As a result of her fall, Vanessa sustained a cervical straining type injury. She was never hospitalized, however, she was confined to bed for several days. During the following several weeks her physical activities were seriously curtailed and she experienced neck and shoulder pain and intermittent headaches. She was required by her physician to wear a cervical collar for about eight weeks. She was last seen by Dr. Ambrister, her treating physician, on March 17, 1975. As a result of this last examination Dr. Ambrister concluded as follows:

“The patient was thought to have incurred a cervical straining type of injury. When she was seen most recently, the greatest part of symptoms had subsided. It was thought she would be able to return to her usual activities. She may expect occasional discomfort of headaches over a period of an additional 4 to 6 weeks. An eventual complete recovery should take place without resulting disability.”

As aforestated the trial court awarded general damages in the principal amount of $2500.00. Defendant-Appellant complains that this award is excessive.

While the amount awarded is, in our opinion, generous considering the finding of the trial court that Vanessa and her mother tended to exaggerate the former’s pain and the length of her convalescence, we cannot say that the trial judge abused the great discretion allowed the trier of fact in awarding damages. R.C.C. Article 1934; McDonald v. Fidelity & Casualty Company of New York, 317 So.2d 267, (La.App. 3rd Cir. 1975); Bitoun v. Landry, 302 So.2d 278 (La.1974); Fox v. State Farm Mutual Automobile Insurance Co., 288 So.2d 42 (La. 1973).

For the above and foregoing reasons the judgment of the trial court is affirmed, defendant-appellant to be cast for all costs of this appeal.

AFFIRMED.


author: WATSON, Judge.

text:
    Jack D. REED, Plaintiff-Appellant, v. M.F.C. SERVICES and United States Fidelity & Guaranty Company, Defendants-Appellees.
    No. 5731.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 21, 1976.
    John P. Navarre, Oakdale, for plaintiff-appellant.
    Gold, Hall, Hammill & Little, by H. B. Bruser, III, Alexandria, for defendant-ap-pellee.
    Before CULPEPPER, WATSON and GUIDRY, JJ.
   WATSON, Judge.

Appellant herein, Jack D. Reed, neither appeared nor filed a brief in this matter prior to the time the ease was called for oral argument. Pursuant to Rule VII, Section 5(b), Uniform Rules, Courts of Appeal, this appeal is considered abandoned, and is hereby dismissed at appellant’s cost.

Appeal dismissed.


author: HOOD, Judge.

text:
    Succession of Frank Cazan FONTENOT. Mrs. Louise Fusilier FONTENOT, Plaintiff-Appellant, v. Arcade FONTENOT et al., Defendants-Appellees.
    No. 5735.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 21, 1976.
    Preston N. Aucoin, Ville Platte, for plaintiff in rule appellant.
    Jules R. Ashlock, Ville Platte, for plaintiff in rule appellant.
    John Clyde Fontenot, Ville Platte, for defendant in rule appellee.
    Before HOOD, DOMENGEAUX and HUMPHRIES, JJ.
   HOOD, Judge.

Mrs. Louise Fusilier Fontenot, the surviving widow of Frank Cazan Fontenot, deceased, appeals from a judgment rendered by the trial court which, in substance, rejects the demand of the attorneys employed by her, the firm of Ashlock & Vidrine, to be recognized as the “sole attorneys for the Succession of Frank Cazan Fontenot.”

Defendants, who are collateral heirs of the decedent, have filed a number of pleadings in this court, including an answer to the appeal, several exceptions and a motion to dismiss the appeal on the ground that the judgment rendered by the trial court is not an appealable judgment. We have decided that the appeal must be dismissed, and that it is unnecessary for us to consider the other pleadings filed by the appellees.

Frank Cazan Fontenot died testate on July 15, 1976, and his will was probated shortly thereafter. All parties were represented originally by the law firm of Fonten-ot & Mitchell. Pursuant to pleadings filed by Mrs. Fontenot, through that firm, an order was issued on July 27, 1976, purporting to appoint her as provisional adminis-tratrix of this succession.

Shortly after the above order was issued, and upon application of Mrs. Fontenot, the trial judge issued an ex parte order decreeing that attorney Jules R. Ashlock be entered on the court record as Mrs. Fontenot’s attorney in this succession. Several pleadings relating to this estate were then filed by Mrs. Fontenot, through Ashlock, or the firm of Ashlock & Vidrine. In response to one such pleading an order was issued on August 27,1976, purporting to appoint Mrs. Fontenot as dative testamentary executrix of the succession.

During or about that time several pleadings were filed by defendants, as collateral heirs of the decedent, through their attorney Clyde Fontenot, or the firm of Fonten-ot & Mitchell. Among those pleadings was a petition seeking to have the defendants recognized as the sole and universal legatees of the testator, and a petition praying that the appointment of Mrs. Fontenot as dative testamentary executrix be annulled. It is apparent that the parties could not agree as to who should be appointed to serve as representative of the succession and as to how the estate should be handled.

On August 27,1976, pursuant to a motion filed by “Ashloek & Vidrine, appearing through one of its members, Jules R. Ash-lock,” an order was issued by the trial court directing the law firm of Fontenot & Mitchell to show cause “why the name of said firm (Fontenot & Mitchell) should not be removed as attorneys of record for the herein succession and why the name of the law firm of Ashloek & Vidrine should not be recognized as the true and lawful attorneys for this succession.” After trial of that rule, and of issues presented by some other pleadings, judgment was rendered by the trial court on September 1, 1976, and that judgment was amended on September 3, 1976. The amended judgment reads as follows:

“IT IS ORDERED, ADJUDGED & DECREED that mover’s ‘Rule to Show Cause Why the Law Firm of Ashloek & Vidrine Should Not be Recognized as the Sole Attorneys for the Succession of Frank Cazan Fontenot, and Why the Name of the Law Firm of Fontenot & Mitchell Should Not be Stricken From the Record as Attorneys for the Succession of Frank Cazan Fontenot' is hereby denied.
IT IS FURTHER ORDERED, ADJUDGED & DECREED that the firm of Ashloek and Vidrine are counsel of record for Louise Fusilier Fontenot, widow of Frank Cazan Fontenot and the firm of Fontenot and Mitchell are counsel of record for all the other heirs and/or legatees of decedent.
IT IS FURTHER ORDERED, ADJUDGED & DECREED that the petition for possession filed by the legatees under the will of Frank Cazan Fontenot is premature and is therefore denied.
IT IS FURTHER ORDERED, ADJUDGED & DECREED that Louise F. Fontenot be allowed fifteen (15) days to file any suit to contest the validity of the will written by Frank Cazan Fontenot which has been probated in these proceedings.
IT IS FURTHER ORDERED, ADJUDGED & DECREED that Louise F. Fontenot be permitted to continue as Provisional Administratrix to conduct succession business in accordance with Louisiana laws concerning provisional administration of succession.”

Mrs. Fontenot appealed from that amended judgment, contending that the trial judge erred (1) in failing to recognize Ashloek & Vidrine as attorneys for the succession, and (2) in allowing her only fifteen days within which to contest the validity of the testator’s will.

Defendants-Appellees contend that the judgment appealed from is neither a final judgment nor is it an interlocutory judgment which may cause irreparable injury, as these terms are used in LSA-C.C.P. art. 2083. They take the position that it thus is not an appealable judgment, and that plaintiff’s appeal should be dismissed.

Our law provides that a judgment which does not determine the merits but only preliminary matters in the course of the action is an interlocutory judgment. A judgment which determines the merits in whole or in part is a final judgment. LSA-C.C.P. art. 1841.

A judgment which does not determine or dispose of any issue constituting a part of the merits of the case is not a final judgment. If such a judgment cannot cause a party to suffer irreparable injury, it is not appealable. LSA-C.C.P. art. 2083; Waters v. Waters, 264 So.2d 275 (La.App. 3 Cir. 1972); State Department of Highways v. Alexandria Land & Lumber Company, Inc., 284 So.2d 153 (La.App. 3 Cir. 1973); Anderson v. Southern Consumers Education Foundation, Inc., 196 So.2d 686 (La.App. 3 Cir. 1967).

Mrs. Fontenot contends that the judgment appealed from in the instant suit is a final judgment, and thus is appealable, because if it is allowed to stand “it will be utterly impossible to proceed to conclude and close this succession.” She maintains that “things will come to a standstill,” that “chaos will follow,” and that the estate will be deprived of any benefit it may have by having an attorney for the succession. And, she argues that a “state of legal paralysis” or “confusion” exists until that is determined.

We are not convinced that a judgment which purports to recognize a lawyer, or a law firm, as attorney for a succession has any practical legal effect. Assuming that such a judgment would have some legal effect, we nevertheless feel that it would not be a final judgment, since it would not dispose of any part of the merits of the action. Such a decree would determine only preliminary matters in the course of the action, and it thus would be an interlocutory judgment. Our next inquiry, then, is whether that type of interlocutory decree may cause irreparable injury, and thus should be appealable under LSA-C. C.P. art. 2083.

We do not believe that the judgment sought by Mrs. Fontenot, or by the attorneys which she engaged, would give her any right or benefit which she does not have under the judgment which was rendered by the trial court. There is no merit to the argument that the succession cannot be concluded or that the proceedings will come to a standstill if some attorney, or some law firm, is not designated as attorney for the succession. The judgment appealed from does not prevent the appellant from seeking, through her selected counsel, the same type of relief which she might have sought had her counsel been recognized as attorney for the succession. And, the judgment which she feels should be rendered would not deprive her opponents, the collateral heirs of the decedent, from seeking the same type of relief which they may seek under the judgment which is before us on this appeal. There is nothing in the record or in the law which indicates that the judgment rendered by the trial court could cause injury to any party to this proceeding.

Our conclusion is that the judgment rendered by the trial court is neither a final judgment, nor is it an interlocutory judgment which may cause irreparable injury. An appeal thus may not be taken from that judgment, under LSA-C.C.P. art. 2083.

We do not consider the appeal to be frivolous, and we thus reject the appellees’ prayer for damages for taking the appeal.

That part of the judgment which allows plaintiff a limited period of time within which to contest the validity of the will of the decedent also is an interlocutory judgment. We find that it also is not ap-pealable, since there is no showing that it may cause irreparable injury.

For the reasons assigned, the motion to dismiss the appeal taken in this matter by Mrs.- Louise Fusilier Fontenot is granted, and that appeal is hereby dismissed. The costs of the appeal are assessed to plaintiff-appellant.

APPEAL DISMISSED.


author: GUIDRY, Judge. WATSON, Judge

text:
    John L. BRACEY, Plaintiff-Appellant, v. ALEXANDRIA TRANSFER AND STORAGE COMPANY et al., Defendants-Appellees.
    No. 5737.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 21, 1976.

      Larvadain & Scott by Edward Larvadain, Jr., Alexandria, for plaintiff-appellant.
    Gold, Hall, Hammill & Little by James D. Davis, Alexandria, for defendants-appellees.
    Before CULPEPPER, WATSON and GUIDRY, JJ.
   GUIDRY, Judge.

Plaintiff appeals from a judgment rejecting his demand for total and permanent disability benefits under the Louisiana Workmen’s Compensation Act. We affirm.

Plaintiff was employed by defendant, his work consisting of the moving of furniture, appliances and other household furnishings. On October 23,1974, he was injured when a freezer fell and fractured his right ankle. Following this injury plaintiff was treated by Dr. John T. Weiss, an orthopedic surgeon, who diagnosed an undisplaced fracture of the medial malleolus of the right ankle. The ankle was immobilized with a long leg cast, which remained until December 19,1974. Thereafter, Bracey wore elastic hose, however, because of continued swelling he was placed in a short leg cast on February 6, 1975. This cast was removed some 14 days later after which his condition improved to the extent that on April 3, 1975, Dr. Weiss recommended that plaintiff resume “light work”. On the following day Bracey returned to work for defendant and was assigned light duties. The record is not clear as to how long plaintiff worked after he was re-hired however, presumably he worked until sometime in September 1975 when he was discharged.

The record leaves no doubt but that when plaintiff was discharged in September of 1975 he was not disabled by reason of the previous injury to his right ankle. Dr. Weiss testified that his ankle was well healed and that the minimal disability of the right leg, i. e., 10%, would not prevent his return to full employment.

On September 9, 1975, plaintiff complained to Dr. Weiss about his left knee. Dr. Weiss’s examination of plaintiff on this occasion prompted an initial diagnosis of osteoarthritis. Dr. Weiss suggested that plaintiff submit to surgery in order that the bowing of his left knee be corrected. Plaintiff agreed and was subsequently admitted to the hospital. As a result of certain preoperative tests it was determined that plaintiff was not suffering from osteoarthritis but rather from a condition alternately referred to as “genu valgum” or “Charcot joint”. Dr. Weiss in his deposition clearly stated that this condition was secondary to a venereal disease of long standing and that surgery would not help, but rather it would make the condition worse. Plaintiff was discharged from the hospital and has never returned to work. There is no question but that as a result of the condition of plaintiff’s left knee, which according to Dr. Weiss will become progressively worse, he is totally and permanently disabled.

Plaintiff asserts that he is entitled to compensation for total and permanent disability from his former employer on alternate grounds: (1) that his disability is com-pensable because it resulted from heavy lifting or other strenuous efforts which caused or contributed to the physical breakdown of a pre-existing condition, citing Cutno v. Neeb Kearney & Company, 237 La. 828, 112 So.2d 628 (1959) and Hemphill v. Tremont Lumber Company, 209 La. 885, 25 So.2d 625 (1946); and, (2) in the alternative, that as a result of the October 1974 ankle injury he was forced to shift his weight to his left leg which put more stress on that extremity which in turn caused an acceleration of the disabling condition. The trial judge rejected both contentions. We agree.

Plaintiffs first contention is without merit. There is no evidence in the record, medical or otherwise, which would support a finding that plaintiff’s left knee broke down in September 1975 because of heavy lifting or other strenuous effort. Plaintiff had not performed any heavy work for some eleven months prior to that date because of his ankle injury. Although plaintiff did return to light duty in April of 1975 he admittedly did no heavy work his duties consisting of packing cartons with dishes etc. Additionally, the medical testimony (Dr. Weiss being the only medical witness) does not support the conclusion that heavy work caused or contributed to the disabling condition in plaintiffs knee. The above being considered the cited cases are clearly inapposite.

Plaintiffs second contention is equally without merit. Although plaintiff urges that the testimony of Dr. Weiss indicates a causal connection between the ankle break and acceleration of the left knee condition, a fair reading of Dr. Weiss’s testimony indicates that such a causal connection is not within the realm of medical probability. As stated by the trial court:

“In essence what Dr. Weiss testified to was that if a shifting of weight did occur, it possibly could have hastened or accelerated the condition in the left knee. However, he did not testify that it did. On the contrary, Dr. Weiss further explained that the condition was certain to arise anyway, and without the disabling ankle injury, the onset could have been hastened just as much by a continuation of heavy lifting and strenuous work.”

Throughout Dr. Weiss’s testimony, when questioned regarding this causal connection, he stated that the ankle break made no “significant difference” in the development of the knee problem. While it is true that as a result of repeated questioning Dr. Weiss stated there was a possibility of acceleration or aggravation, i. e., some few weeks or two or three months, give or take one to two, a reading of his entire testimony substantiates the trial judge’s position that the condition complained of was not referable to plaintiff’s employment. As recently set forth in Prim v. City of Shreveport, 297 So.2d 421, 422 (La.1974):

“Although procedural rules are construed liberally in favor of workmen’s compensation claimants, the burden of proof, by a preponderance of the evidence, is not relaxed. Thus, the testimony as a whole must show that more probably than not an employment accident occurred and that it had a causal relation to the disability. If the testimony leaves the probabilities equally balanced, the plaintiff has failed to carry the burden of persuasion. Likewise, the plaintiff’s case must fail if the evidence shows only a possibility of a causative accident or leaves it to speculation or conjecture. Jordan v. Travelers, 257 La. 995, 245 So.2d 151 (1971); Hebert v. Your Food Processing & Warehouse, Inc., 248 La. 197,177 So.2d 286 (1965); Hogan v. T. J. Moss Tie Co., 210 La. 362, 27 So.2d 131 (1946); White v. E. A. Caldwell Contractors, Inc., La.App., 276 So.2d 762 (1973); Richard v. Guillot, La.App., 271 So.2d 719 (1972); Nellon v. Harkins, La.App., 269 So.2d 542 (1972).” (Emphasis supplied).

For the above and foregoing reasons the judgment of the trial court is affirmed.

AFFIRMED.

WATSON, J., dissents and assigns written reasons.

WATSON, Judge

(dissenting):

I dissent, being of the opinion that the trial court erred as to the applicable law and that the judgment should be reversed. The plaintiff is entitled to benefits for total and permanent disability and to penalties and attorney’s fees for failure to pay compensation from January 22,1975 to September 19,1975. In order to explain my views, I will discuss both the facts and the law.

Bracey’s work involved the lifting and moving of heavy furniture and appliances. He was injured on October 23, 1974, when a freezer fell and fractured his right ankle. It is undisputed that Bracey has never returned to the full performance of his former duties. His treating physician, Dr. John T. Weiss, an orthopedic surgeon, recommended “light work” on April 3, 1975. Defendants paid Bracey compensation for 13 weeks at $65 per week through January 22, 1975, or a total of $845 plus medical expenses of $412.74. Bracey returned to “light duty” April 4, and received neither compensation nor salary for the ten weeks between January 22 and April 4. No mention is made by the trial court of the ten-week gap. Dr. Weiss discharged Bracey on September 19, 1975, but recommended treatment by another physician.

The trial court concluded that Bracey is not disabled as a result of the ankle injury, which Dr. Weiss said caused a 10% residual impairment of the right leg. According to the reasons for judgment, the trial court found the “compensation or salary” (Tr. 49) paid for Bracey’s light work prior to his discharge by his employer, were ample to compensate for this injury. The wages paid were fully earned, according to the record, and the defendants are not entitled to claim them in lieu of compensation. Madison v. American Sugar Refining Company, 243 La. 408, 144 So.2d 377 (1962). There is no question whatsoever that Bra-cey is entitled to compensation from January 22, 1975 until September 19, 1975 and for penalties on this amount plus attorney’s fees.

Bracey is presently disabled and, according to the medical evidence, the problem with his left leg will get progressively worse. The basic question on appeal is whether his condition was caused by the accident.

Bracey’s present inability to perform the duties of his former occupation was attributed by Dr. Weiss and the trial court to a pre-existing venereal disease, previously asymptomatic, which has affected Bracey’s left knee, resulting in a Charcot joint. Bra-cey attributes the problem with his left knee to an attempt to shift his weight from his injured right ankle. Dr. Weiss, whose deposition is the only medical evidence, said this was possible:

“Because there could be a slight increase in stress.” (TR. 42)
* * * * * *
“. it could conceivably have caused a minimal amount of stress on the knee that he might not have had otherwise.” (TR. 43)
ifc Sfc if! * * Jf!
“. . .it might have shown up two or three months sooner . . . . Progressed it, . . (TR. 45)

The only medical evidence is the deposition of Dr. Weiss. He initially saw Bracey on the date of the accident, October 23, 1974, when he diagnosed an undisplaced fracture of the medial malleolus of the right ankle. The ankle was immobilized with a long leg cast, which remained until December 19. Bracey was then instructed to wear an elastic hose. He continued to have swelling — more in February than the doctor expected. Bracey was placed in a short leg cast on February 6, 1975, which was removed February 20 when he was returned to the elastic hose and instructed to wear a “steel shank lace up shoe”. The swelling continued through March to April 3, when Bracey still had some swelling, but Dr. Weiss recommended his return to light work at that time. Dr. Weiss continued to see Bracey until September 19, 1975 when he gave him a 10% disability of the right leg but recognized that he was suffering from a disabling condition of the left knee due primarily to a venereal disease. Dr. Weiss emphasized that Bracey would have become disabled through the knee condition regardless of the ankle injury. However, he also recognized that the ankle injury may have accelerated the development of the disabling knee. He also added that some of the prolonged edema (swelling) of the ankle was connected with the disease.

It is true that Dr. Weiss continually used the terms “might” and “possible” in connection with the acceleration of the knee condition by the ankle fracture. However, my study of his entire deposition convinces me that he found a causal relationship. An important fact, in my analysis, is that Bra-cey never regained the ability to return to his previous employment; he has been continuously disabled from the date of the ankle fracture.

According to the uncontradicted testimony of Bracey and two co-workers, Willie Davis and Milmon Frazier, Bracey had no complaints about his legs and no problem with the heavy lifting required by his job until the accident. Bracey had worked at the same job for seven years without difficulty. The presumption in such a case is that the accident caused the disability. Johnson v. Travelers Insurance Co., 284 So.2d 888 (La., 1973). The trial court erred as a matter of law in failing to apply this presumption.

“. . .a claimant’s disability is presumed to have resulted from an accident, if before the accident the injured person was in good health, but commencing with the accident the symptoms of the disabling condition appear and continuously manifest themselves afterwards, provided that the medical evidence shows there to be a reasonable possibility of causal connection between the accident and the disability condition.” Bourque v. Monte Christo Drilling Corporation, 221 So.2d 604 at 606 (La.App. 3 Cir. 1969).

Coverage is afforded under the compensation act if disability results from an accident which accelerates [or, as Dr. Weiss put it, “progressed”] the onset of a pre-existing disease. Porter v. Augenstein Construction Company, 280 So.2d 861 (La.App. 3 Cir. 1973).

If Bracey’s, fractured ankle caused, precipitated or accelerated the disabling Char-cot joint, he is entitled to total and permanent benefits.

“It is immaterial that the disability could have been brought on by causes other than a work-related trauma, if, in fact, trauma on the job which meets the standards of accidental injury is a disabling factor.” Parks v. Insurance Company of North America, 340 So.2d 276 (La., 1976).

The line of cases exemplified by Prim v. City of Shreveport, 297 So.2d 421 (La., 1974), was relied on by the trial court and is urged by counsel for defendants. The present case is distinguished from Prim in that there was no indication that a work-related accident had caused or accelerated plaintiff’s stroke in Prim. The medical testimony was to the contrary, that is, the stroke could not have been caused by the minor injury to the leg. Here, Bracey was disabled as a result of the ankle injury for almost a year; he was placed in a cast for two months and then on a second occasion for three weeks. He never returned to his full duties. According to plaintiff, his leg continued to swell when he attempted light work. This was confirmed by his co-worker, Frazier.

Accordingly, I would hold that Bracey is entitled to a judgment for total and permanent disability benefits. In view of the failure to pay compensation from January 22, 1975 until September 19, 1975, penalties and attorney’s fees should be granted for that period. Following September 19, 1975 there was a reasonable dispute as to causal connection and penalties would be inappropriate.

I respectfully dissent.

      . There is no other testimony in the record except Weiss’ deposition.


text:
    MARYLAND CASUALTY COMPANY, Plaintiff-Appellee-Appellant, v. Jules MOUTON, III, et al., Defendants-Appellants-Appellees.
    No. 5714.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 21, 1976.
    Mouton, Roy, Carmouche & Hailey by John A. Bivins, Lafayette, for defendant-appellant.
    L. H. Olivier, Lafayette, for plaintiff-ap-pellee.
    Davidson, Meaux, Onebane & Donohoe by Robert M. Mahony, Lafayette, for defendant-appellee.
    Shelton, Cline, Miller & Richard by James M. Miller, Jr., Rayne, for intervenor-appel-lee.
    Before CULPEPPER, WATSON and GUIDRY, JJ.
   WATSON, Judge.

Plaintiff, Maryland Casualty Company, the workmen’s compensation insurer of the City of Lafayette, Louisiana, filed this suit to recover $48,019.65 in benefits paid to Lloyd Sterling. Sterling was struck by an automobile on March 1,1974, while working as a garbage collector for the city sanitation department. Made defendants were: Roger J. Cook, driver of the automobile which struck Sterling; Jules Mouton, III, driver of the truck, which allegedly caused Cook’s car to collide with Sterling; Consolidated Marketing, Inc., owner of the truck driven by Mouton, which was operated under the trade name of Hub City Paper Company; and American Mutual Insurance Company, the liability insurer of Consolidated Marketing and Mouton. Cook’s liability insurer is Protective National Insurance Company of Omaha, not named as a party. An intervention by Lloyd Sterling was compromised. The trial court concluded that the accident resulted solely from the negligence of Mouton, and made the following factual findings:

Mouton was driving in the right lane of two northbound traffic lanes. He swerved into the left lane of traffic, directly in front of Cook’s automobile, when it was unsafe to do so, in violation of LSA-R.S. 32:79. Cook, presented with a sudden emergency, turned his car to the right and applied his brakes, unfortunately colliding with Sterling and the garbage truck, which was parked in the right lane. Sterling received severe personal injuries.

The trial court dismissed plaintiff’s demands against Cook and rendered judgment against Mouton, Consolidated Marketing, and American Mutual Insurance Company for $48,019.65.

The defendants cast in judgment have appealed, contending that the trial court erred in finding Mouton negligent; in not holding Sterling guilty of contributory negligence; and in not holding Cook negligent. It is also contended that the trial court erred in admitting the deposition of one Fernest Benoit into evidence.

Maryland Casualty Company has also appealed, asking this court, if it should determine the negligence of Mouton not the sole cause in fact of the accident, to render judgment against Cook, or judgment against all the parties defendants jointly.

The basic issue raised is whether the factual analysis of the accident by the trial court is manifestly erroneous. There is also a subsidiary issue of whether the Benoit deposition was admitted properly into evidence.

Some of the facts of the accident are largely undisputed and they are as follows:

The accident occurred in the early afternoon on March 1, 1974, in the city of Lafayette. A sanitation department truck was parked next to the curb in the right lane of northbound traffic on West University Street, a four-lane street. Double yellow lines in the center of the street divide the four lanes. The outside northbound lane measures 10' and the inside lane 9'. They are divided by dashed white lines. The speed limit at the scene is 35 m.p.h. Sterling was unloading a garbage can into the back of the truck when he heard brakes. Before he could turn around, Sterling was struck by Cook’s car. The impact was 115' 5" north from the northeast corner of the intersection of University and Simcoe streets. Cook’s car left skid marks beginning about 1' over into the left lane of traffic. The right front tire left 29'; the left front tire 32'; the right rear tire 23'; and the left rear tire 27' of skid marks. The four flashing hazard lights of the garbage truck were on at the time. Sterling had been working with Wilson Breaux, the driver of the truck, and John Despanie, who was on the right side attempting to start the auxiliary motor, when the accident occurred.

As to the actual occurrence of the accident and the events immediately preceding it, there are disputes among the parties. This court has relied on the testimony of four witnesses to review the trial court’s determination of the essential facts. They are: Janet Hebert, a passing motorist; Roger Cook, the driver of the vehicle striking Sterling; Wilson Breaux, the driver of the garbage truck; and Jules Mouton, III, driver of the van.

Ms. Janet Hebert, an acquaintance of Roger Cook, gave the following account of the incident: She had seen Cook at Sears before the accident and then observed his Dodge automobile following her Yega on West University. Prior to the intersection of Simcoe and University, Ms. Hebert pulled into the lefthand lane, as did Cook. The light at the intersection of Simcoe and University was green; the speed limit was 35 miles an hour; neither she nor Cook stopped or changed their speed at the intersection. Ms. Hebert then observed a large, white, Hub City Paper truck cut in between her automobile and Cook’s, causing him to swerve to the right to avoid the truck. There were approximately two car lengths between her automobile and Cook’s at the time. Ms. Hebert had not observed the garbage truck or the Hub City truck until this maneuver by the Hub City truck. Ms. Hebert was past the garbage truck when she heard the sound of brakes. She did not remain at the scene because she had to take her baby home and return to work but talked to Cook by telephone that evening.

Roger Joseph Cook’s testimony was similar to that of Ms. Hebert: He was driving north on University toward Four Corners when he was involved in the collision. Cook had earlier seen Ms. Hebert inside Sears, where he was a part-time employee while attending school. He recognized her automobile ahead of him as they drove down University, first seeing it when located approximately in front of the Lafayette Elementary School. She was then in the right-hand lane of the two northbound lanes of University and Cook was in the left. Approximately at the intersection of Congress and University, Ms. Hebert moved into the lefthand lane also. Cook was going about 30 miles per hour when he approached the green light at Simcoe and University and continued past the intersection at the same rate of speed. Both he and Ms. Hebert were at this time in the left lane; Cook estimated the distance between them as four to five car lengths. A panel truck which he described as “like a white wall” (TR. 320) swerved in front of him obscuring his vision. His instinctive reaction was to pull to the right and apply his brakes. There was heavy traffic in the two oncoming lanes. Cook was not in a hurry, being on his way to K-Mart to buy records, and had not made any particular observation of traffic in the right lane until the sudden maneuver by the van which resulted in his trying to avert a collision. When he swerved to the right and applied his brakes, he struck the garbage truck. At the time Cook took evasive action, the van was at an angle, not yet completely in the lefthand lane, and Cook could not see around it. He did not observe the garbage truck until he turned into the righthand lane to avoid striking the van.

Wilson Breaux, who was sitting in the driver’s seat of the garbage truck, observed part of the scene in his rear view mirrors, but could not see both lanes of traffic with either one of them. Breaux thought the Hub City truck was in the left lane, and the accident occurred when Cook tried to pass on the right, saw the garbage truck and slammed on his brakes. Breaux admitted to a criminal record. He said he knew Mouton by sight. The Hub City truck was coming up to the garbage truck’s door when Breaux tried to open it after the crash. He had to wait until it passed before getting out.

Mouton said he was delivering for Hub City at the time of the accident, driving a boxy delivery van. His account of the accident was as follows: There was no visibility to the rear except through his outside mirrors. Mouton was driving in the right lane as he approached the intersection of Simcoe and University. He did not recall whether he turned into the left lane before or after the intersection, or whether he had to stop for the light at the intersection. At some point, Mouton saw the garbage truck stopped ahead and moved into the left lane. Mouton testified he checked his left rear view mirror but did not remember whether he signalled before changing lanes. After moving into the left lane [which Mouton repeatedly referred to as the “middle” lane], he observed the Cook vehicle coming up fast behind him. Mouton had not seen the Cook car in the left lane. He heard but did not see the collision. Mouton did not remember the Hebert car in front of him.

There was testimony by two experts in accident reconstruction: Earl Nickey Picard for plaintiff and George Green, Jr. for defendants. Green said that the skid marks did not indicate an emergency swerving of the Cook vehicle; whereas Picard concluded that, considering reaction time and all of the factors involved, Cook had had to begin his evasive action and applying of the brakes while in the inside or lefthand lane of traffic. Both were accepted by the trial court as qualified experts in the field of accident reconstruction.

The factual evidence, as outlined above, shows the most probable sequence of events to have been that Mouton saw the garbage truck, made an abrupt unsignalled change of lanes and thereby created a sudden emergency for the Cook car in the left lane. Mouton’s testimony was that the left lane was clear, but this is the only point on which he has a clear memory and his testimony is contradicted by that of the disinterested witness, Ms. Hebert. Mouton apparently reacted suddenly when he saw the garbage truck in front of him and failed to check his rear view mirror for the Cook automobile until he had completed the change of lanes. Cook’s instinctive reaction was to swerve to the right and apply his brakes. We agree with the trial court that the reconstruction of the accident by Picard was the more credible of the conflicting versions given by the two experts. It is the one which is confirmed by the testimony of the witnesses. Since the witness Breaux could see only one lane of traffic at the time in his rear view mirrors, it is likely that he received a distorted impression of the sequence of events. The situation is very similar to that in Anderson v. Raines, 304 So.2d 858 (La.App. 4 Cir. 1974), in which the Fourth Circuit reached the same conclusion as the trial court here. That result shows no manifest error and is amply supported by the evidence. Wiley v. Travelers Insurance Company, 300 So.2d 555 (La.App. 3 Cir. 1974), writ denied, 303 So.2d 187 (La.); Vaughn v. Earthly, 313 So.2d 347 (La.App. 3 Cir. 1975), writ denied, 318 So.2d 52 (La.); Andrew v. State Farm Mutual Automobile Ins. Co., 316 So.2d 883 (La.App. 3 Cir. 1975), writ denied, 320 So.2d 915 (La.). to be an eye witness. There was adequate showing that the parties offering the deposition had been unable to obtain his attendance at trial by subpoena. LSA-C.C.P. art. 1428(3)(d). Considerable evidence was taken to cast doubt on the credibility of Benoit, after the deposition' was admitted. The evidence and arguments on this point go more to the weight than to the admissibility. In view of the serious questions raised about Benoit’s motives, we prefer not to consider his testimony. The deposition gives Benoit’s version of the accident. The reasons for judgment do not show what reliance the trial court placed on this deposition, but we find no necessity to rely on it in reaching our decision.

The record shows no contributory negligence on the part of Lloyd Sterling who was engaged in the duties of his employment and undoubtedly considered himself protected by the presence of the large and quite visible garbage truck in front of him. Since it was broad daylight, the truck could have easily been avoided, and Sterling had no reason to anticipate the maneuver by Mouton which resulted in Cook hitting the truck.

For the foregoing reasons, the judgment of the trial court herein is affirmed. All costs are assessed against defendants-appellants, Jules Mouton, III, Consolidated Marketing, Inc. and American Mutual Insurance Company.

AFFIRMED.

There was no error in admitting the deposition of Fernest Benoit, who claimed


author: LEE, Justice, for the Court.

text:
    Mack BROWN v. STATE of Mississippi.
    No. 49267.
    Supreme Court of Mississippi.
    Nov. 30, 1976.

      John W. Land, Rosedale, for appellant.
    A. F. Summer, Atty. Gen., by John C. Underwood, Jr., Special Asst. Atty. Gen., Jackson, for appellee.
    Before PATTERSON, and SMITH and LEE, JJ.
   LEE, Justice, for the Court.

Mack Brown and Granville Wright were jointly indicted, tried and convicted in the Circuit Court of Bolivar County on the charge of armed robbery. Brown was sentenced to serve a term of twenty-two (22) years in the state penitentiary, and he appeals from that judgment. We reverse and remand for a new trial.

Appellant assigns the following errors in the trial below:

(1) The trial court erred in refusing to grant appellant’s motion for severance.

(2) The trial court erred in overruling appellant’s objection to the introduction of letters allegedly written by Granville Wright.

(3) The trial court erred in overruling appellant’s objection to testimony and evidence resulting from an illegal search.

(4) The trial court erred in overruling objections to statements made by the prosecuting attorney and in failing to declare a mistrial.

Two black males robbed the Merigold Branch of the Cleveland State Bank on January 7, 1975. Harry Speakes, manager, was in the bank at the time and was the only eyewitness. Brown and Wright were arrested the following day and were placed in the Cleveland jail. The prisoners were separated while in jail, and Wright attempted to send two letters to Brown by a trusty. The letters incriminated both Brown and Wright, and the trusty delivered them to the officers rather than to the prisoner.

Speakes positively identified Brown and Wright as the robbers. Fingerprints of Wright were found in the bank, and the pistol identified as being the weapon used in the robbery was loaned to Brown and Wright by Willie B. Davis. Speakes described a long coat worn by Brown, and such a coat was obtained from the home of Brown’s mother where he was staying.

I

Did the trial court err in refusing to grant appellant’s motion for severance?

On May 23, an order was entered for a special venire, and the case was set for trial on June 9. Appellant presented a motion for severance to the court on the day of the trial setting out that Brown’s attorney was advised certain incriminating letters allegedly written from Wright to Brown would be offered in evidence by the prosecution. On the hearing, the trial judge denied the motion for the reason that it was not timely filed and that there were insufficient grounds for severance.

We are unable to say that the trial judge abused his discretion at that point in overruling the motion for severance. Ivory v. State, 336 So.2d 732 (Miss.1976); Dueitt v. State, 225 Miss. 254, 83 So.2d 91 (1955); Bolin v. State, 209 Miss. 866, 48 So.2d 581 (1950).

The question of severance will not rise again on a new trial, since Wright did not appeal his conviction. However, trial judges must anticipate the danger of error in joint trials where evidence may be introduced which is admissible against one defendant and is prejudicial to another.

II

Did the trial court err in overruling appellant’s objection to the introduction of letters allegedly written by Granville Wright?

Incriminating letters written by Wright to Brown were intercepted by the officers and were introduced in evidence during the prosecution’s case in chief. They were admissible against Wright, but were clearly hearsay as to appellant. Wright took the witness stand in his own behalf and denied that he and Brown had any connection with the robbery, although he did not deny writing the letters. Appellant was confronted with the witness and had the right to cross-examine him, but declined to do so. The jury was not instructed that the letters could be considered only against Wright and not against Brown.

In Bruton v. State, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), the Court had before it a confession implicating Bruton made by a codefendant who did not testify. The jury was instructed that the confession was admissible only against the codefend-ant and should not be considered as evidence against Bruton. The Court said:

“We have concluded, however, that Delli Paoli should be overruled. We hold that, because of the substantial risk that the jury, despite instructions to the contrary, looked to the incriminating extrajudicial statements in determining petitioner’s guilt, admission of Evans’ confession in this joint trial violated petitioner’s right of cross-examination secured by the Confrontation Clause of the Sixth Amendment. We therefore overrule Delli Paoli and reverse.” 391 U.S. at 126, 88 S.Ct. at 1622, 20 L.Ed.2d at 479.

The case was reversed because Bruton did not have the opportunity to cross-examine the codefendant and was denied his constitutional right of confrontation by the witness.

In Nelson v. O’Neil, 402 U.S. 622, 91 S.Ct. 1723, 29 L.Ed.2d 222 (1971), an incriminating statement made by the codefendant Runnels was admitted in evidence; Runnels later took the stand and denied he made the statement. The appellant declined to cross-examine Runnels and each time the confession was referred to, the trial judge instructed the jury that it could be considered only against codefendant Runnels and not the appellant. There, the appellant was confronted with the witness and had the opportunity to cross-examine him, and the jury also was instructed that the confession could not be considered against appellant. The Court stated:

“Runnels’ out-of-court confession implicating the respondent was hearsay as to the latter, and therefore inadmissible against him under state evidence law. The trial judge so ruled, and instructed the jury that it must not consider any part of the statement in deciding whether or not the respondent was guilty. In Bruton, however, we held that, quite apart from the law of evidence, such a cautionary instruction to the jury is not an adequate protection for the defendant where the codefendant does not take the witness stand. We held that where the jury hears the codefendant’s confession implicating the defendant, the codefend-ant becomes in substance, if not in form, a ‘witness’ against the defendant. The defendant must constitutionally have an opportunity to ‘confront’ such a witness. This the defendant cannot do if the code-fendant refuses to take the stand.
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We conclude that where a codefendant takes the stand in his own defense, denies making an alleged out-of-court statement implicating the defendant, and proceeds to testify favorably to the defendant concerning the underlying facts, the defendant has been denied no rights protected by the Sixth and Fourteenth Amendments.” 402 U.S. at 626, 629-30, 91 S.Ct. at 1725-26, 1727, 29 L.Ed.2d at 226, 228.

We held in Ivory v. State, supra, where the statement of a codefendant was not introduced until he took the stand in his own defense, after the prosecution had rested, and made statements under oath at variance with his prior written statement, it was admissible to impeach his testimony. We further held, citing Newell v. State, 308 So.2d 71 (Miss.1975), that the trial court cannot be put in error for failing to give an instruction unless requested in writing to do so.

While the question here will not present itself on retrial, in such cases, the prosecution should not offer, and the trial judge should not admit, in evidence, incriminating statements of a codefendant (implicating the defendant) during the State’s case in chief, since it could not be known whether the codefendant would testify after the State rested. The statement, if admissible, should be admitted only after the codefendant took the stand and was subject to cross-examination by the defendant, and, when admitted, the trial judge should immediately, and at such other times as the statement might be referred to, tell (orally instruct) the jury that the statement must not be considered against the defendant. Likewise, if so requested by the defendant, the trial judge must instruct the jury in writing.

Ill

Did the trial court err in overruling appellant’s objection to testimony and evidence resulting from an illegal search?

Officers went to the home of appellant’s mother armed with a search warrant for the purpose of searching the premises. The mother voluntarily consented to the search and waived service of the search warrant upon her. Appellant’s coat was found and was admitted in evidence. It is not disclosed how long appellant had been staying at his mother’s home, whether he had any interest in a particular area of the home, or whether he was there only for a visit.

In United States v. Matlock, 415 U.S. 164, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974), the Court held a warrantless search was justified by the showing that permission to make the search was obtained from a third party who possessed common authority or other sufficient relationship over the premises or effects sought to be inspected. See also Haralson v. State, 318 So.2d 891 (Miss.1975).

Under the facts developed in this case on the first trial, the search of the premises was authorized by appellant’s mother and came within the rule set forth in United States v. Matlock, supra. The record does not reflect that the consent for the search was acquiescence to a claim of lawful authority but that it was freely and voluntarily given. Bumper v. North Carolina, 391 U.S. 543, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968). It follows that the objection was properly overruled.

IV

Did the trial court err in. overruling objections to statements made by the prosecuting attorney in his argument and in failing to declare a mistrial?

During his argument, the county attorney told the jury:

“MR. WYNNE: Ladies and gentlemen, the State has put on enough evidence in this case; actually, when Mr. Speakes made an in-court identification of these two men coming in there and robbing that bank, we made the case. It’s undisputed. You haven’t heard anyone dispute this testimony of Mr. Speakes. Nobody disputed his testimony.” (Emphasis added)

Mississippi Code Annotated section 13-1-9 (1972) reads as follows:

“The accused shall be a competent witness for himself in any prosecution for crime against him. The failure of the accused, in any case, to testify shall not however operate to his prejudice or be commented on by counsel.”

The only persons present at the robbery of the bank were Mr. Speakes and the two robbers. The codefendant Wright took the stand and testified that neither he nor appellant were in the bank, and he denied that they robbed the bank. Thus, the testimony of Speakes was disputed by codefend-ant Wright. The statement of the prosecuting attorney emphasized the fact that the only other person who could have testified was appellant, and that he did not dispute (failed to testify) the testimony of Mr. Speakes.

In Lambert v. State, 199 Miss. 790, 25 So.2d 477 (1946), the prosecuting attorney stated: “Where is the testimony that he did not do it? * * * There’s no denial.” [199 Miss, at 792, 25 So.2d at 477] The Court held that such statement constituted a comment upon the failure of the defendant to testify and was reversible error. A number of cases involving the point were discussed, and many of the statements which were held to be prejudicial error were similar to the one in the case at bar.

The prosecuting attorney said in Clark v. State, 260 So.2d 445 (Miss.1972): “There are good reasons why we should not speculate, and you should base your decision on the law and the evidence, if they had any evidence; otherwise they could have presented it.” [260 So.2d at 446] This statement was held to constitute prejudicial error for commenting upon the failure of the defendant to testify.

The prosecution must present its case against a defendant fairly and in accordance with the law and the rules of evidence. The statement in the instant case constituted a comment upon the failure of the appellant to testify and violated an elementary and long-established principle of law, and was prejudicial error.

Por the reasons stated, the case is reversed and remanded for a new trial.

REVERSED AND REMANDED.

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


author: GILLESPIE, Chief Justice,

text:
    Georgie B. DIXON et al. v. Pearl Lee CURTIS et al.
    No. 48948.
    Supreme Court of Mississippi.
    Nov. 30, 1976.
    Rehearing Denied Jan. 12, 1977.

      Singley, Minniece, Hamilton, Neville & Hamill, Thomas Y. Minniece, Meridian, for appellants.
    Brunini, Grantham, Grower & Hewes, Jackson, Riddell & Dabbs, Quitman, R. Gordon Grantham, Jackson, Tally D. Riddell, Quitman, for appellees.
    Before GILLESPIE, C. J„ and SUGG and BROOM, JJ.
   GILLESPIE, Chief Justice,

for the Court.

This appeal involves two separate cases and is a sequel to Keeler v. Boteler, 267 So.2d 319 (Miss.1972).

The two cases, one involving a contest of the alleged will of Anna Belle Burnett, and the other involving the heirship of Granville Barnett, a/k/a Earl Burnett, were tried together in the Chancery Court of Clarke County, Mississippi. Georgie B. Dixon and her grantees were the successful litigants in Keeler and the unsuccessful litigants in the two cases now under consideration.

In Keeler, Georgie B. Dixon was adjudged the sole heir of Anna Belle Burnett, who was adjudged the sole heir of Granville Barnett, a/k/a Earl Burnett, and she and her grantees were adjudged the owners of a ^/áoth interest in and to a parcel of land in Clarke County, Mississippi.

Before this Court’s affirmance of the decree in Keeler, and on June 29, 1972, Pearl Lee Curtis, Mildred C. House and Myrtle Dilworth, who were not parties to Keeler, and their grantees filed suit against Geor-gie B. Dixon and her grantees averring that Pearl Lee Curtis was the daughter of Gran-ville Barnett, a/k/a Earl Burnett, herein,after Earl Burnett, and, together with Burnett’s widow, Anna Belle Burnett, were the sole heirs of Earl Burnett, deceased; that Mildred C. House and Myrtle Dilworth were the sole heirs of Anna Belle Burnett; and that Georgie B. Dixon was not related to Anna Belle Burnett. The bill of complaint also charged that the decree in Keeler was rendered on false and fraudulent testimony and constituted a fraud on the court. After this last suit was at issue and about two days before it was set for trial, all parties were notified that Georgie B. Dixon had discovered a holographic will of Anna Belle Burnett devising all of her property to Georgie B. Dixon. This will was probated in common form on January 7,1974. Pearl Lee Curtis, Mildred C. House and Myrtle Dilworth contested the validity of the alleged holographic will, charging that it was a forgery. Thereafter, the trial court declined to consolidate the two causes for trial, but allowed evidence in either cause relevant to and admissible in the other cause to be considered by the court in reaching its decision in either or both cases.

After a lengthy hearing, the court entered a decree adjudging that the purported will of Anna Belle Burnett was a forgery. In the heirship case, the court set aside the former decree (involved in Keeler) on the ground that it was based on false and fraudulent testimony and evidence constituting a fraud perpetrated upon the court, and held that Earl Burnett died intestate and left as his joint heirs his widow, Anna Belle Burnett, and his daughter, Pearl Lee Curtis, each of whom inherited a one-half interest in the subject property, and at the time of Anna Belle Burnett’s death she left as her joint heirs her two first cousins, Mildred C. House and Myrtle Dilworth, each of whom inherited a one-fourth interest in the subject property.

THE WILL CASE

Georgie B. Dixon, as proponent of the purported holographic will of Anna Belle Burnett, according to the terms of which Georgie B. Dixon was the sole devisee of Anna Belle Burnett, offered the proceedings wherein the will was probated in common form, and rested.

Georgie B. Dixon was called as an adverse witness and testified that she found the purported will in Anna Belle Burnett’s Bible and that this Bible was in a trunk containing the effects of Anna Belle Burnett.

The proof showed that for many years Georgie B. Dixon and Anna Belle Burnett had lived together. This trunk and its contents had been in the possession of Georgie B. Dixon about five or six years before the will was found. The contestants offered the testimony of Lucille P. Lacy of Houston, Texas, who qualified as an examiner of questioned documents. She testified that the person who wrote the will was . not the same person who wrote the various stipulated samples of Anna Belle Burnett’s writing. She testified that the person who wrote Anna Belle Burnett’s name on the flyleaf of the Bible also wrote and signed the will.

Donald Doud of Chicago, Illinois, was qualified as an examiner of questioned documents, and he testified that the person who wrote the holographic will was not the same as the person who wrote the stipulated samples of Anna Belle Burnett’s writing. He testified that the same person who wrote “Anna Belle Burnett” on the flyleaf of the Bible was the same person who wrote the will. Doud also testified that an examination of the Bible showed that the page preceding the flyleaf containing Anna Belle Burnett’s purported signature had been removed and there were indentations on the page containing Anna Belle Burnett’s signature, indicating that someone had written on the missing page but he could not determine what had been written on the missing page.

There was a great deal of other testimony offered pro and con on the question of the validity of the will. Bessie Blocker, who lived next door to Anna Belle Burnett and had known her since 1937, testified that she gave the Bible in question to Anna Belle Burnett and saw Anna Belle write her name on the flyleaf. C. D. Brooks of Birmingham, Alabama, was qualified as a specialist in questioned documents, and he was of the opinion that the person who wrote the will also wrote the stipulated samples. He also testified that the person who wrote the signature of Anna Belle Burnett in the Bible also wrote the stipulated samples and the holographic will.

The will case raises two questions.

1. Was the chancellor’s finding that the will was a forgery against the overwhelming weight of the testimony?

Appellants have analyzed in great detail the testimony of the two experts who testified on behalf of the contestants. We have carefully examined appellants’ arguments but we are unable to say that the chancellor erred in finding that the will was a forgery. It is true that because Georgie B. Dixon had lived with Anna Belle Burnett for many years prior to the latter’s death and had referred to Anna Belle Burnett as her aunt, Georgie B. Dixon probably would have been the natural object of Anna Belle Burnett’s bounty. It was also shown that several investigators had talked to Georgie B. Dixon over a period of five or six years, searching for information concerning the heirship of Earl Burnett and Anna Belle Burnett. The chancellor had a right to take into consideration the probability that the will, which consisted of one sheet of tablet paper and was said to have been found in Anna Belle Burnett’s Bible, would have been found at an earlier date. The chancellor was also justified in believing the testimony of the two experts who testified for the contestants and in rejecting the testimony of the expert who testified for Georgie B. Dixon. No good purpose would be served by a delineation of the extensive testimony offered pro and con on the issue of whether the will was a forgery. In our opinion, this was a question of fact for the chancellor’s decision and we find no reason to substitute our judgment for the trier of facts.

2. Did the chancellor err in allowing the adverse examination and impeachment of Georgie B. Dixon on the issue of her blood relationship to Anna Belle Burnett, her marital status, and in permitting appellees to contradict such testimony?

The contestants called Georgie B. Dixon as an adverse witness and cross-examined her at length concerning her present and past testimony as to her blood relationship to Anna Belle Burnett, exposing her previous false testimony that she had married Will Dixon, and where she lived and went to school. This cross-examination and the impeachment testimony was sufficient to justify the chancellor in finding that Georgie B. Dixon was not related by blood to Anna Belle Burnett.

The will case and the heirship case were tried together but were not consolidated and the court entered separate decrees. Prior to the beginning of the trial, the court entered an order declining to consolidate for trial the two cases in the sense that causes are generally consolidated, but decreed:

However, the court recognizes that some of the evidence and testimony introduced in one of the above causes will be material and relevant to and admissible in the other cause. Such evidence and testimony introduced in either cause by any party that is material and relevant to and admissible in the other cause, may on motion be introduced in the other cause by reference and may be considered by the court in reaching its decision in either or both causes.

The order also provided that counsel for all parties agreed to its provisions. The testimony in the two cases cannot from a practical standpoint be separated.

Georgie B. Dixon was cross-examined and impeached with the use of documentary evidence. Mississippi Code Annotated section 13-1-53 (1972) provides as follows:

A party to a suit desiring to examine any opposite party in open court, may, without first taking his deposition, have such party subpoenaed as a witness and examine him in the presence of the court during the progress of the trial, and shall be at liberty to contradict the testimony of such party as he might do with an adverse witness. Such opposite party shall be entitled to fees as a witness for the party by whom he was subpoenaed, such fees to be paid and taxed as in case of other witnesses.

This statute authorizes the cross-examination and impeachment of an opposite party called as an adverse witness to the same extent that any adverse witness may be cross-examined and impeached. Wagley v. Colonial Baking Co., 208 Miss. 815, 45 So.2d 717 (1950).

Dixon argues that the trial court went too far in permitting her impeachment by showing prior contradictory testimony when the only effect was to impeach and not to give any material evidence upon the issues in the case.

The impeachment of Dixon was material to the issue of heirship. It was material on the question of whether the previous decree was obtained by fraud. The parties agreed in advance of trial that the evidence would be introduced in the manner stated in the pretrial decree. Conceding that some of the impeachment was not material to the validity of the will, we cannot say it was not material to the heirship issue. We have carefully considered the effect the impeachment of Dixon on the heirship issue may have had on the chancellor in deciding that the will was a forgery. At least some of the impeachment could be relevant to the forgery question. It would be difficult and would serve no purpose to separate the part that is clearly immaterial on the forgery issue. But the manner in which the two cases were tried together, the rule that the chancellor has considerable discretion in matters of evidence and the chancellor’s opinion in the will case — all these considerations lead this Court to the conclusion that the case should not be reversed on this evidence question.

The following is the chancellor’s opinion on the forgery issue:

The Court always feels presumptuous when it is called upon to determine whether or not facts are true, when there is certainly a dispute as to testimony, lay and professional. This Court must very frankly admit that I would doubt seriously that this Court would give much credence to anything, any testimony or any evidence, presented by Georgie B. Dixon based on all the facts that are before this Court. The Court, of course, quite logically would look with suspicion on the will brought forward at the time that it was and with the explanation given for this will, but regardless of all that, the Court must consider carefully the professional testimony of the experts that was given here, and this Court very frankly states that it has had several cases where professional handwriting experts have testified, and this Court and all of us know that many times they differ, and, certainly in a case of this kind when you have some on both sides, they are not going to agree or they wouldn’t be here; but I am compelled by the testimony of the experts to hold that this will is a forgery. I am convinced, and I am no handwriting expert, that it is a forgery, just from my personal examination of it and the exemplars, but the two witnesses who testified on behalf of the contestants prove conclusively, in this Court’s opinion, that the will was a forgery, and I so hold.

It will be noted that the chancellor candidly stated that he would seriously doubt any testimony given by Georgie B. Dixon, but he carefully pointed out that he decided the case upon the testimony of the experts and his own examination of the will and the exemplars. We are of the opinion that the chancellor had a right to look with suspicion upon a will brought forward at the time and under the circumstances testified to by Georgie B. Dixon when she was called as an adverse witness. We are convinced that under all of the circumstances the chancellor decided the case on the correct basis.

THE HEIRSHIP OF ANNA BELLE BURNETT

Did the court err in excluding evidence that Pearl Lee Curtis was not the daughter of Earl Burnett?

Pearl Lee Curtis’ birth certificate indicates that she was born in Chicago, Illinois, to Elizabeth Fisher on June 11, 1925, while Elizabeth was still married to Granville Barnett, a/k/a Earl Burnett. Georgie B. Dixon offered the depositions of four witnesses and two affidavits that after the separation of Earl Burnett and Elizabeth Fisher, Burnett lived in Arkansas and did not visit with his wife, Elizabeth Fisher, during the time that Pearl Lee Curtis was conceived.

Assuming without deciding that Georgie B. Dixon had standing to question the legitimacy of Pearl Lee Curtis, as to which, see Graham v. Lee, 204 Miss. 416, 37-So.2d 735 (1948), we think the chancellor’s action in excluding the offered testimony was correct. The presumption that a child born in wedlock is a legitimate child is one of the strongest presumptions known to the law, Krohn v. Migues, 274 So.2d 654 (Miss.1973), and may be rebutted only by proof beyond a reasonable doubt that the husband is not the father. Stone v. Stone, 210 So.2d 672 (Miss.1968). After fifty years the frail memorials of human memory will rarely be accepted to rebut the presumption of legitimacy arising from documented records of marriage and birth certificate.

We have carefully considered the other arguments raised by Georgie B. Dixon and we find no reversible error. From our study of the case, we find no basis upon which to hold that the chancellor did not reach a correct result.

AFFIRMED.

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