author: WATSON, Judge.

text:
    Leo ANDING et ux., Plaintiffs-Appellees, v. SOUTHWESTERN INSURANCE COMPANY et al., Defendants-Appellants.
    No. 6392.
    Court of Appeal of Louisiana, Third Circuit.
    April 11, 1978.
    Rehearing Denied May 11, 1978.

    Writ Refused July 3, 1978.

      Kramer & Davis, James D. Davis, Alexandria, for plaintiffs-appellees.
    Stafford, Randow, O’Neal & Smith, Grove Stafford, Jr., and Russell Potter, Alexandria, William J. Doran, Jr., Baton Rouge, for defendants-appellants.
    Before WATSON, GUIDRY and FORET, JJ.

       Guidry, J., voted to grant a rehearing limited to the issue of whether Ora Mae Anding was guilty of negligence which was a legal cause of the accident.

   WATSON, Judge.

This is one of three consolidated cases arising out of an accident which occurred on Highway 399 in Vernon Parish on the afternoon of October 15, 1975. A loaded log truck driven by Clyde Ellis Clark collided with a Ford automobile driven by Mrs. Ora Mae Anding, wife of Leo Anding. The Anding grandchildren, Cody and Tonya, were passengers in the Ford; Tonya died in the accident; her brother and grandmother were injured.

In docket # 6390, La.App., 358 So.2d 699, George Elie Anding and Gwendolyn Lacaze Anding ask damages for the death of their daughter, Tonya Denean Anding, and the personal injuries of their minor son, George Decody “Cody” Anding. Named as defendants are Clyde E. Clark, his insurer, Southwestern Insurance Company and the Louisiana Department of Highways. In the instant case, docket # 6392, Leo Anding, et ux. v. Southwestern Insurance Company, et al., Mr. and Mrs. Leo Anding ask damages for Mrs. Anding’s personal injuries, medical expenses, and loss of the Ford automobile from the same defendants. In docket # 6391, Clyde E. Clark v. Leo Anding, et ux., La.App., 358 So.2d 700, Clark is suing Mr. and Mrs. Leo Anding and the Department of Highways for damage to his truck and loss of income.

The trial court concluded that Clark was negligent in operating “ . . .a monstrous vehicle over a narrow road on a rainy day near top speed and failing to apply his brakes . . . ” timely (TR. 160); that the Highway Department was negligent in maintaining a slippery patchwork surface on Highway 399 without posting warnings or reduce speed signs; and that Leo Anding was negligent in having slick tires on the Ford automobile. Mrs. Anding’s actions were stated to be those of a reasonably prudent driver. The demands of Clark in docket # 6391 were dismissed. In docket # 6390, George Elie Anding was given judgment against the Department of Highways, Clark and his insurer, in the sum of $36,566.23, including $1,566.23 for funeral expenses. Gwendolyn Lacaze Anding, former wife of George, was awarded $40,-313.10, including $313.10 for Cody’s medical expenses, and an additional $5,000 for Cody’s use and benefit, against the same defendants. In the instant case, docket # 6392, Ora Mae Anding was awarded judgment against Clyde E. Clark and the Louisiana Department of Highways, in soli-do, in the amount of $200,000 and judgment against Southwestern Insurance Company in the amount of $100,000, its policy limits for injury to one person. The demands of Leo Anding were dismissed with prejudice. The Department of Highways was given judgment against Southwestern Insurance Company and Clark for one-half of the total, limited, as to Southwestern Insurance Company, to its policy limits of liability.

The Department of Highways has appealed, contending that: the Department was not negligent; any negligence in maintaining Highway 399 was not a proximate cause of the accident; Ora Mae Anding was negligent both in causing the accident and in driving with defective tires; Leo Anding’s negligence in equipping the automobile with defective tires should be imputed to Ora Mae Anding; the damages awarded are excessive. Southwestern Insurance Company and Clark have appealed, contending that: Ora Mae Anding was negligent; Clark was not negligent; any negligence on the part of Clark was not a cause in fact of the accident; the awards of $200,-000 to Ora Mae Anding and $5,000 to George Decody Anding are excessive. Mr. and Mrs. Leo Anding have answered the appeals asking that her damages be increased from $200,000, the amount prayed for in their petition, to $600,000. They contend that the trial court should have allowed amendment of their petition to claim damages more in keeping with the evidence presented; that the award to Ora Mae And-ing is so low as to constitute an abuse of the trial court’s discretion; and that any negligence of Leo Anding in having slick tires on the Ford was not a cause in fact of the accident and should not bar his recovery of damages. The trial court stated in denying amendment of the pleadings that the $200,-000 was sufficient. Also answering the appeal are the parents of the minors who ask that the award for the death of Tonya be increased to $100,000 for each of them.

Because of George’s youth the only eyewitnesses who could testify as to the circumstances of the accident were Mr. Clark and Mrs. Anding. Mrs. Anding was going north, returning home to Pitkin from De-Ridder where she had taken the two grandchildren to the health center. She testified she was not familiar with the highway. She came over the crest of a small hill going about 40 m.p.h. A slick place in the road caused the back of her car to wiggle out of line. She straightened out, observed Clark’s truck coming from the opposite direction in her lane of traffic and checked her speed. There was a narrow bridge in the valley between the two vehicles. It was stipulated that the top of her hill was 870' from the bridge and Clark’s hilltop was 543' from the bridge. The truck appeared to Mrs. Anding to be in the middle of the road and she pulled to the side to give the truck the right-of-way. Her right tire went off the roadway because of a rough spot in the blacktop. She then tried to pull her car back on the edge of the road surface. The car hit a slick place that caused her ear to skid at an angle down the highway with perhaps a third of the car in the left lane of traffic. Mrs. Anding told the children the truck was going to hit them. Her car and the truck collided. Mrs. Anding testified that the truck did not appear to check its speed at any time prior to the collision. She thought it remained in her lane until the impact. Her husband was responsible for deciding on the purchase of new tires. She was not aware that her back tires were slick.

Clark was hauling wood from Kisatchie Forest to the DeRidder Boise Southern paper mill. His trailer was loaded with tree length wood, and weighed approximately 72,000 pounds, the legal maximum. It had not been weighed when the accident occurred. Clark was familiar with the road and had made the same trip earlier in the day. The roadway was narrow and wet with rain. It had been raining all day. He was driving in ninth gear at a speed of about 45 miles an hour, the truck’s maximum when loaded. Clark topped a small hill and saw the Anding car coming from the.opposite direction down another small hill. There was a bridge between them. Clark observed the Ford fishtail slightly then straighten out and pull to the side. The right front wheel dropped off the roadway. Clark said he stopped accelerating, but the grade kept his speed approximately the same. When the Anding car turned back to the highway it skidded across the roadway, and the vehicles collided. Clark first admitted that he did not apply his brakes until immediately before the collision, despite observing Mrs. Anding’s difficulties. He then claimed when recalled to the stand that he braked when he saw her car drop off the road. The trial court noted this as an apparent conflict in reasons for judgment. Clark testified that he was in his proper lane of traffic. He estimated that he could stop his truck on a flat dry surface when fully loaded within two or three hundred feet but that it would take longer going downhill on a wet pavement. Clark said he thought Mrs. Anding was trying to avoid him. After the accident, Clark pulled Mrs. Anding and the two children out of the ear. Tonya breathed only a couple of times before expiring.

Donald R. Beltz of the Louisiana State Police investigated the accident. The vehicles had not been moved. The Anding Ford was 50 or 60 feet south of the bridge in the ditch on the righthand side of southbound motorists. It had come to rest about 84 feet from the point of impact at the north end of the bridge. The right front tire left 22 feet of skidmarks, the front left 19, the right rear 22 and the left rear 17. Trooper Beltz observed these marks north of the point of impact where Mrs. Anding had gone off the road with her right tires. The shoulder was firm slippery sod with no large holes. The right front tire on the Anding vehicle was in good shape but the others were slick. The log truck traveled 375 feet from the point of impact. Its pre-impact speed was estimated at 45 to 50 m.p.h. The truck left no skidmarks to indicate the brakes had been applied. Because of the absence of marks Trooper Beltz could not determine whether the truck was in its proper lane of traffic prior to the impact. There was a light rain and the blacktopped road surface was slick. However, Trooper Beltz patrolled the road often and had never had trouble maintaining control of his vehicle on it during rainy weather. Damage to the logging truck was in the front, more severe on the right side. The Anding vehicle was virtually destroyed on the passenger side. The right side of the truck had apparently struck the right side of the Anding car, as the latter went across the bridge at an angle. Trooper Beltz did not recall any warning signs in the area.

Joseph H. Barnwell, retired from Louisiana Tech, a professor emeritus in mechanical engineering, testified as an expert in accident reconstruction. Although not an expert in highway design, Professor Barn-well was found to qualify as an expert in the testing of road surfaces. He measured the pavement at the bridge as 19 feet wide and the highway as 21 feet wide. The bridge is 20'3" long. The truck was 8 feet and the Anding Ford was 6'5" wide. Barn-well compared photographs of the scene and identified a patchwork overlay of asphalt where Mrs. Anding’s car came back on the roadway after running off the shoulder. The overlay patch is 51V2 feet long and extends to within 13V2 feet of the south end of the bridge. The surface of this patch was slick and smooth with no aggregate when Barnwell examined it. In his opinion, photographs showed its condition to have been substantially the same at the time of the accident. Barnwell testified that the patch could have become smooth and slick from being applied with an excess of asphalt. Warm weather can cause asphalt to bleed, and he examined the patch ten months after the accident but he believed its condition to be stable. Barnwell tested the road surface of the patch during a gentle rain and got co-efficients of friction of .29 and .31 or about .3 at 18 miles an hour, which is poor. The ratio would have gone down at a higher speed. The rest of the highway would have had a co-efficient of friction of .56 to .6. According to Barn-well’s testimony, the State of Louisiana calls for ability to stop corresponding to a co-efficient of friction for automobiles of .57. The edge of the road was broken up and corroded with virtually no shoulder. Barnwell identified a break at the edge of the road which he testified would have caused a car which hit it with the righthand wheel to rotate to the right onto the shoulder. The wet grass shoulder would have had a co-efficient of friction of between .2 and .3. Barnwell testified that it was remarkable Mrs. Anding was able to get back on the highway after going off the shoulder and estimated that the Anding vehicle turned back onto the highway at an angle of less than 15 degrees, probably 8 to 10 degrees. He thought that Mrs. Anding then might have over-controlled her path to the left by steering right and lost control at the slick patch in the road. In Barnwell’s opinion there was “a high possibility” (TR. 170) she could have maintained control of the car except for the presence of the slick patch. However, Barnwell testified that a vehicle crossing the patch without maneuvering would have encountered no difficulty, and the patch thus presented no general hazard to the motoring public when driving straight ahead. Professor Barnwell confirmed that Clark would not have lost any speed coming down the grade by taking his foot off the throttle and the truck would have maintained its speed prior to the impact. Barnwell concluded that the absence of skidmarks from the truck and trailer indicated the brakes were not applied. Professor Barnwell testified that in his opinion the Clark truck was at least two feet over the center line and going in excess of 45 mph when the impact occurred. Professor Barnwell thought the gouge marks from the Ford were made after the impact as it ran up under the truck. In Professor Barn-well’s analysis of the accident, the right front of the truck tore through the entire right front of the Anding vehicle where the principal damage was done. The Anding vehicle then spun counterclockwise against the west bridge railing, off the road and on to its final resting place. Barnwell identified a print of the bridge railing on the left side of the Anding car. The railing on the west side of the bridge had been repaired. Barnwell stated that the Anding vehicle would not have disturbed the forward motion of the Clark vehicle because of its light weight. The only effect of the Anding vehicle on the truck was to knock the right front wheel out from under it. Barnwell felt Clark could have stopped when he saw Mrs. Anding fishtail just as he came over the hill. The causes of the accident, in Barnwell’s opinion, were the truck driving over the center line, the poor condition of the road shoulder and the slick pavement leading to the bridge.

Melvin L. Jackson, a 30-year employee of the Louisiana Department of Highways, is currently serving as assistant district engineer in charge of maintenance for the area in which the accident occurred. He formerly served as maintenance engineer, a job now held by his assistant. Jackson testified that the bridge and highway in question are maintained and owned by the Louisiana Department of Highways. At the time of this accident there were no signs warning of a narrow bridge, narrow road, soft shoulders or a highway slippery when wet. Jackson testified that the Department of Highways has rigs for skid tests but had not done any testing in this bridge area before the accident. The patch in question was put down in 1971.

Edward M. Wagner, Jr., head transportation engineer for the Louisiana Department of Transportation, testified that his job involves supervision and direction of traffic counts on the state’s highways. His department’s records showed 338 vehicles passing the accident site daily in 1976 and 281 in 1975.

Donald R. Marson, an engineer’s aide with the Louisiana Department of Highways, testified that he ran an accident diagram for Louisiana Highway 399 between mile posts 5.5 and 5.9 where this accident occurred. No other accidents occurred there between January 1, 1973 and August 1, 1976.

James B. Butter, an engineer specializing in maintenance with the Louisiana Department of Highways, testified that he observed Louisiana Highway 399 between mileposts 5.5 and 5.9 on the day of this accident prior to its occurrence. He made no particular inspection or test in the area but noticed nothing unusual or apparently dangerous. Butter’s notes for that day state that the patches on Highway 399 looked good. Butter added that patches are never put down without a top layer of aggregate, although a slick condition can result from sun bleeding the asphalt.

Wesley Sumler, parish superintendent for the Department of Highways, testified that Butter told him that he had checked Highway 399 on October 15,1975. Subsequently this wreck was reported on that highway. A highway department crew was sent to put lights and signs to warn that the bridge railing was knocked off on the south side and to put sand on the diesel oil left by the truck. Sumler said the absence of gravel on the patch could have resulted from the asphalt coming to the top.

The trial court’s conclusion that Clank's operation of the log truck and the condition of the road surface were both causes of this accident has a reasonable evidentiary basis and is not manifestly erroneous. Factual causation is a question to be resolved by the trier of fact. Pence v. Ketchum, 326 So.2d 831 (La., 1976). Mrs. Anding testified that the truck was in her lane of traffic and, in Professor Barnwell’s expert opinion, that was the case even at the point of impact. Mr. Clark testified that he was in his proper lane of traffic and this may have been the case, but the trial court had the prerogative of accepting the testimony to the contrary. The trial court’s factual conclusion was that the truck was being driven across the center line and this “King Kong type vehicle” (TR. 159) intimidated and frightened Mrs. Anding. Mrs. Anding’s attempts to cope with the emergency presented were hampered by the condition of the wet road. Her reaction to the emergency was to attempt to pull over to the side of the road. Clark observed this maneuver and regarded it as an attempt to get out of his way. Yet, Mr. Clark apparently made no attempt to stop or otherwise avoid the accident. Because of the uneven condition of the pavement edge, Mrs. And-ing’s right front wheel dropped off on the slick grassy shoulder. She then turned back to the highway and hit the slick section of asphalt about which Professor Barn-well testified.

The evidence does not establish that warning signs would have had any effect in this particular factual situation. The trial court did not state in reasons for judgment that their absence was a cause in fact, only that the Department was negligent in maintaining a slick surface without warning signs. There are no probative facts to support a conclusion that the absence of such signs was an additional cause in fact of the accident. Clark was completely familiar with the highway and had been over it earlier the same day under identical weather conditions. There is no evidence that Mrs. Anding could have done anything further to avoid the accident.

The trial court found that the condition of the Anding tires contributed to the occurrence of the accident and concluded that Leo Anding was negligent in equipping the automobile with slick tires. The duty of furnishing proper tires was found to rest solely with Mr. Anding. This finding is free of manifest error under these circumstances and bars recovery by Leo Anding. The negligence of a husband cannot be imputed to his wife. Carter v. Salter, 351 So.2d 312 (La.App. 3 Cir. 1977), writ denied, La., 352 So.2d 1045.

Mr. Clark was under a legal duty to drive his vehicle in its proper lane of traffic at a prudent speed in order to avoid colliding with an approaching vehicle such as that of Mrs. Anding. His breach of these duties created an emergency situation. Clark not only had a duty to drive his vehicle on the right side of the road but was under a further duty to attempt to avoid an accident or minimize its severity by stopping his vehicle if necessary. There is evidence that Clark did not attempt to avoid the accident. His actions were not those of a reasonably prudent driver. He was negligent: initially in driving across the center line of the road and later in failing to stop or slow his vehicle when he observed Mrs. Anding’s perilous situation.

As to the Department of Highways, there is no evidence that the Department breached its duty to use reasonable care in inspecting and repairing its roadways and bridges. In contrast to Shively v. Pickens, 346 So.2d 1314 (La.App. 3 Cir. 1977) there were no other accidents in the area; the condition was not obviously dangerous; and there was no actual or constructive notice of a hazardous situation to the Department. No breach of duty by the Highway Department has been established. Even if the condition were conceded to be apparent, the Highway Department was not on notice of the fact¡ Parfait v. State Department of Highways, 334 So.2d 549 (La.App. 1 Cir. 1976), relied on by counsel for plaintiffs, involved a highway with a five or six inch drop off from the pavement to the shoulder and deep holes; the Department knew cars frequently ran off the road in the area. Also distinguishable from the instant factual situation is that presented in the recent case of Barnes v. Liberty Mut. Ins. Co., 350 So.2d 288 (La.App. 3 Cir. 1977) where the Highway Department had notice of a potentially dangerous slippery condition from a prior accident and a state trooper’s complaint. Here, we have only a corroded pavement edge, which did not appear dangerous to Butter or Trooper Beltz. According to Professor Barnwell’s testimony, the patch did not present the type of apparent hazard which would constitute constructive notice to the Highway Department. Compare Robertson v. Handy, 354 So.2d 626 (La.App. 1 Cir. 1977) where a rut on the shoulder was 4" deep and 30 to 50 feet long.

Employees of the Department had patched the road but this alone did not create a defect. The evidence indicates that the patch may have become slick from the passage of time. It has not been established that the employees of the Department were negligent in their repair of the road, which had been inspected just prior to the accident.

It is contended that the Highway Department should be strictly liable as the owner of a dangerous thing, LSA-C.C. art. 2317. The principle of legal fault under this article, enunciated in Loescher v. Parr, 324 So.2d 441 (La., 1975), is that a party legally responsible for a thing which creates an unreasonable risk of harm to others can be held liable for resulting damage even though free of negligence. Fault of a third person is a defense to imposition of liability under this article. As pointed out at 37 La.L.R. 240, it is not clear in Loescher whether the fault of the third party must be the sole cause of damage or merely a contributing factor. Here, the causes of the accident included the wet, slippery highway as well as the negligence of third party Clark. In American Road Ins. Co. v. Montgomery, 354 So.2d 656 (La.App. 1 Cir. 1977), writ denied 356 So.2d 430 (La., 1978), another circuit concludes that any third party fault bars liability. Despite the denial of writs, we are not convinced this holding is correct. This circuit in Gallien v. Commercial Union Ins. Co., 353 So.2d 1127 (La.App. 3 Cir. 1977), writ denied 354 So.2d 1379 (La., 1978), held that, despite Loescher, actual or constructive notice is still required for a public body to be held liable as the owner of a thing presenting an unreasonable risk of harm to others.

The Louisiana Supreme Court decided in U.S.F. & G. Co. v. State, Dept. of Highways, 339 So.2d 780 (La., 1976) that the Highway Department had actual notice of a serious hazard and therefore did not discuss liability under LSA-C.C. art. 2317.

We conclude that the Highway Department maintained Highway 399 in a reasonably safe condition. Moreover, analyzed in the context of Loescher, Highway 399 did not present an unreasonable risk of harm to the ordinary prudent motorist. The highway became hazardous only when Mrs. Anding was presented with an emergency situation.

There is a reasonable evidentiary basis for the trial court’s conclusion that Mrs. Anding was not negligent. She was faced with a sudden emergency and her response to it was reasonable. A party in such a situation is not required to make the best possible choice of alternatives. The evidence is sufficient to rebut the presumption that Mrs. Anding was at fault in allowing her vehicle to cross the center line of the highway prior to the collision.

The evidence as to damages was as follows:

Bruce Wayne Cole, an ambulance attendant in Pitkin, said Tonya had no pulse or respiration so he left her at the scene; Ms. Anding and Cody were put in his ambulance. Another ambulance took Tonya directly to a funeral home. Cody was described as exhibiting considerable pain; crying, frightened and vomiting. Mrs. Anding had lacerations on her legs, was scalped and said she had no feeling from her waist down. It was stipulated that the testimony of Sid Cole would confirm that of Bruce Cole. James Carlin Johnson of Pit-kin arrived at the scene shortly after the accident while Mrs. Anding and the children were present and gave a substantially similar description of their condition.

Tonya was born January 30, 1970 and was five years old at the time of her sudden traumatic death. Her father, George And-ing, said she was a leader in her kindergarten and described her as an outdoor girl who enjoyed boating and fishing with him. The parents, George and Gwendolyn, were separated and have since been divorced. George Anding has another daughter by his present marriage but Gwendolyn Anding does not. Gwendolyn depicted Tonya as exceptionally bright, active and outgoing. Cody, born November 16, 1971, was four at the time of the accident. Cody and Tonya divided their time between their maternal and paternal grandparents; George and Gwendolyn were also staying with their respective parents in Pitkin. Gwendolyn had legal custody of the children, but George saw them every day.

Although Cody was not permanently injured, the trial court noted that he suffered mental pain and suffering disproportionate to his physical injuries.

When George went to the Beauregard Hospital to check on Cody’s condition, he found him scared, hurt and vomiting blood with bruises on his shoulder, cuts on his head and a hole about the size of a pencil in his leg. When Gwendolyn Anding went to the hospital, she also found Cody in shock, frightened, crying and throwing up blood. It was three or four weeks before Cody resumed his normal play. According to' Gwendolyn, Cody and Tonya were inseparable until she started school and Cody had an extremely bad time after the accident. He was described as back to normal at the time of trial in February and March, 1977.

The awards of $35,000 to the father of Tonya and $40,000 to the mother of Tonya plus various special damages are within the much discretion accorded the trial court. The same is true of the $5,000 award to Gwendolyn Anding for the use and benefit of George De Cody “Cody” Anding. LSA-C.C. art. 1934.

Mrs. Anding’s medical expenses totaled $14,394.52. She now has to have friends and relatives do her housework, spends most of her time in a wheelchair and uses a walker to get around. Her driver’s license was lost in the accident and she has not secured another one because she has no use for it. She was 51 at the time of trial and the trial court found her life expectancy under. LSA-R.S. 47:2405 to be 20.20 years. Her right kneecap was removed as the result of the accident and her pelvis, hip, shoulder and ribs were fractured. She said her left index finger is now useless as the result of a mallet type fracture. The court examined a scar around Mrs. Anding’s head which was likened to a skull cap in appearance. Mrs. Anding testified to discomfort as a residual of the scalp injury and pain in her pelvis, hip and knee. She was hospitalized for three months.

Dr. C. W. Lowery testified as an expert in orthopedic surgery that he saw Mrs. Anding in the St. Frances Cabrini emergency room after initial evaluation by a Dr. Brown in DeRidder where Mrs. Anding received sedation, had her scalp sutured in place and an i.v. started. The compound fracture inside the patella had been cleansed and loosely closed with one suture. X-rays showed multiple rib fractures: 2 through 8 on the left; and 3 through 5 on the right. The ribs had apparently punctured the lung. X-rays also revealed a com-minuted, intra-pelvic hip fracture, a commi-nuted patella fracture, a fracture of the right clavicle and a mallet deformity of the left index finger. Dr. Smith, a cardiovascular surgeon in Alexandria, was called into consultation. Various supportive care was undertaken and Mrs. Anding was taken to the intensive care unit. The kneecap was later removed. Mrs. Anding continued to have a separation of the clavicle which did not heal, but surgery was not undertaken because of her other problems. Her left index finger was splinted for about two months and she stayed in traction until the pelvic fractures healed. She remained in intensive care until October 27th and was discharged from the hospital in an ambulance on January 14, 1976. She continued under the care of Dr. Lowery, who last examined her on November 24, 1976. Dr. Lowery testified that there is a very strong probability that Mrs. Anding will require a total hip replacement within five years. She has 50% impairment of the lower extremity from the pelvic fracture and 30% impairment from the kneecap removal with lower extremity permanent impairment as a whole of almost 80%; non-union of the clavicle results in approximately 35% permanent disability of the upper extremity as a whole. Dr. Lowery stated that Mrs. And-ing is unemployable and will need assistance in doing normal household duties, even with total hip replacement. Dr. Lowery testified that she will be confined to a wheelchair or walker for the rest of her life.

Dr. Curt H. Smith testified as an expert in surgery that he was asked to consult with Dr. Lowery about Mrs. Anding because of her severe multiple injuries. Dr. Smith first saw Mrs. Anding in the intensive care unit on the evening of the accident. Although she had received morphine shots, she was coherent, conscious and complaining of pain. Her blood pressure indicated shock and Dr. Smith advised against immediate surgery. Observation for three days ruled out internal injuries which would have taken precedence over her orthopedic difficulties.

The award of $200,000 to Ora Mae And-ing is within the discretion of the trier of fact and is neither excessive nor inadequate. LSA-C.C. art. 1934.

For the foregoing reasons, the judgment of the trial court herein is reversed insofar as it awards plaintiff, Ora Mae Anding, judgment against the State of Louisiana through the Department of Highways and insofar as it awards the State of Louisiana through the Department of Highways judgment for contribution.

The judgment of the trial court is otherwise affirmed. All costs at trial and appeal are assessed against defendants-appellants, Southwestern Insurance Company and Clyde Ellis Clark.

REVERSED IN PART; AFFIRMED IN PART.

GUIDRY, J., concurs.


source: Caselaw Access Project

license: Public Domain

text:
    George Elie ANDING, etc., et al., Plaintiffs-Appellees, v. SOUTHWESTERN INSURANCE COMPANY et al., Defendants-Appellants.
    No. 6390.
    Court of Appeal of Louisiana, Third Circuit.
    April 11, 1978.
    Rehearing Denied May 11, 1978.

    Stafford, Randow, O’Neal & Smith by Grove Stafford, Jr., and Russell Potter, Alexandria, William J. Doran, Jr., Baton Rouge, for defendants-appellants.
    Stanwick & Rivers by Larry W. Rivers, Kramer & Davis by James D. Davis, Alexandria, for plaintiffs-appellees.
    Before WATSON, GUIDRY and FORET, JJ.

       Guidry, J., voted to grant a rehearing limited to the issue of whether Ora Mae Anding was guilty of negligence which was a legal cause of the accident.

   WATSON, Judge.

For the reasons assigned in docket # 6392, Leo Anding, Et Ux v. Southwestern Insurance Company Et Al., La.App., 358 So.2d 690, the judgment of the trial court herein is reversed insofar as it gives judgment against the State of Louisiana through the Department of Highways. The judgment of the trial court is otherwise affirmed. All costs are assessed against Southwestern Insurance Company.

REVERSED IN PART; AFFIRMED IN PART.

GUIDRY, J., concurs.


text:
    Clyde E. CLARK, Plaintiff-Appellant, v. Leo ANDING et ux., Defendants-Appellees.
    No. 6391.
    Court of Appeal of Louisiana, Third Circuit.
    April 11, 1978.
    Rehearing Denied May 11, 1978.

    Hunt, Godwin, Painter & Roddy, James A. Watson, Lake Charles, for plaintiff-appellant.
    Kramer & Davis, James D. Davis, Alexandria, William J. Doran, Jr., Baton Rouge, for defendants-appellees.
    Before WATSON, GUIDRY and FORET, JJ.

       Guidry, J., voted to grant a rehearing limited to the issue of whether Ora Mae Anding was guilty of negligence which was a legal cause of the accident.

   WATSON, Judge.

For the reasons assigned in docket # 6392, Leo Anding, Et Ux v. Southwestern Insurance Company Et Al., La.App., 358 So.2d 690, the judgment of the trial court herein dismissing the demands of plaintiff Clyde E. Clark is affirmed. All costs of appeal are assessed against Southwestern Insurance Company.

AFFIRMED.

GUIDRY, J., concurs.


author: FORET, Judge.

text:
    Gerard HANLON, Plaintiff, v. SLINE INDUSTRIAL PAINTERS, INC. and Liberty Mutual Insurance Company, Third-party Plaintiffs and Defendants in Reconvention-Appellees, and PPG Industries, Inc., Third-party Defendant and Plaintiff in Reconvention-Appellant.
    No. 6408.
    Court of Appeal of Louisiana, Third Circuit.
    April 11, 1978.
    Rehearing Denied May 24, 1978.
    Writ Refused July 3, 1978.

      Stockwell, Sievert, Viccellio, Clements & Shaddock, Fred H. Sievert, Jr., Lake Charles, for third-party defendant and plaintiff in reconvention-appellant.
    Raggio, Farrar, Cappel & Chozen, Richard B. Cappel, Lake Charles, for third-party plaintiffs and defendants in reconvention-appellees.
    Baggett, McCall, Singleton & Ranier, William B. Baggett, Lake Charles, for plaintiff-appellee.
    Before WATSON, GUIDRY and FORET, JJ.
   FORET, Judge.

This is a workmen’s compensation case. The real issue is whether silicosis is a true “occupational disease” type case, the liability for which would rest with the employer for whom the plaintiff was working at the time that he contracted the disease, PPG Industries, Inc. or is silicosis the typical “accident” type case, the liability for which would rest with the employer for whom the plaintiff was working at the time of his ultimate collapse, Sline Industrial Painters, Inc.

The trial court held that silicosis is a true “occupational disease” type case, the liability for which would rest with the employer for whom the plaintiff was working at the time he contracted the disease. PPG Industries, Inc. (hereafter PPG) has appealed the trial court judgment. We affirm.

Our brother in the trial court has written excellent reasons for judgment, and we take the liberty of adopting his reasons as our own:

“Gerard Hanlon was an industrial painter. During the pursuit of his occupation, he contracted silicosis and became disabled. All claims for workmen’s compensation benefits as asserted by Hanlon were settled by court-approved compromise on October 7, 1976, for $25,000.00. Sline Industrial Painters, Inc. and its insurer, Liberty Mutual Insurance Company on the one hand, and PPG Industries, Inc. on the other hand, each contributed $12,500.00 to the settlement and reserved their respective rights to claim indemnification or recoupment of the $12,500.00 contribution from the other. In this suit, each side seeks the determination of their respective liabilities, if any.

“Hanlon obtained his painter’s union card in about 1944, and was first employed by Sline in about 1950. During the next five years, approximately, he more or less alternated working between two contractors, Jackson and Sline. Thereafter, until he went to work for PPG in the early 1960’s, except for short intervals, he worked exclusively for Sline. In the early 1960’s, under a contract Sline had with PPG, Hanlon went to work at the PPG plant site. The contract between Sline and PPG required PPG to pay any workmen’s compensation benefits which may have become owed to Hanlon while working at PPG. Therefore, for all practical purposes, the parties and the court have treated Hanlon as an employee of PPG during the period of time that he worked at PPG. Approximately two or three years after Hanlon started work for PPG, in about 1966, PPG began what was described as its expansion program. Prom about 1966 continuously for approximately four years thereafter, Han-lon did sandblasting and pot-tending. During this period of time he was subjected to extreme exposure to silica particles. During the years prior to this time, his exposure to silica dust was minimal, having done sandblasting on only three occasions for short intervals of no longer than one month each. In about 1970, he was relieved of his sandblasting and pot-tending duties. However, sandblasting operations continued at PPG and Hanlon was continuously subjected to the inhalation of silica particles during the remainder of his employment at PPG, but to a lesser degree. He last worked for PPG on or about June 15, 1975. During the period from the early 1960’s to June 15,1975, Hanlon did work for Sline at other jobs, but only for short intervals, the total aggregate time amounting to only some several months. On these occasions he did no sandblasting. Hanlon did no work from June 15, 1975, until the early part of August, 1975, when he was sent by Sline to an American Bridge job in Orange, Texas. He worked there three days and during this three-day period, for the first time since about 1970, he did sandblasting work. During this three-day period, he for the first time experienced searing pain in his chest, and quit work. Thereafter he sought medical attention and his condition was subsequently diagnosed as silicosis.

“PPG first contends that it is not liable because Hanlon did not become disabled while working for PPG, that the disease did not become disabling until plaintiff was working for Sline in Orange on August 3, 1975, and that Sline is solely responsible since Hanlon sustained a disabling ‘accident’ while working for Sline on the Orange job.

“The court rejects that contention since this is an “occupational disease” case and is not a typical “accident” case within the meaning of those terms in the workmen’s compensation act. Silicosis is a progressive disease contracted over a period of years. The work at Orange was simply the last straw. The principle of law applicable in typical accident cases that an employer takes his employee as he finds him is not applicable in occupational disease cases. The cases of Williams v. Sherwood Homes, Inc., 333 So.2d 756 [La.App. 3 Cir. 1976]; Henderson v. Core Const. Co., 295 So.2d 874 [La.App. 1 Cir. 1974]; Lum v. Employer’s [Employers] Mutual Liability Ins. Co. of Wisconsin, 216 So.2d 889 [La.App. 2 Cir. 1968]; Roussel v. Colonial Sugars Co., 318 So.2d 37 [La., 1975]; and Brown v. Kaiser Aluminum & Chem. Corp., 250 So.2d 99 [La.App. 4 Cir. 1971], are not applicable to the instant case. These cases were cited by PPG in support of its contention that non-disabling silicosis is similar to a non-disabling back condition or a non-disabling arthritic wrist condition or a non-disabling heart condition; and that only when there is some unforseen or unexpected event which suddenly produces objective symptoms from an accident on the job are disabling benefits due the employee by that specific employer.

“It is true as stated in LaCoste v. J. Ray McDermott & Co. [250 La. 43], 193 So.2d 779 [1967], and Chivoletto v. Johns-Manville Products Corporation, 330 So.2d 295 [La., 1976], that in occupational disease cases there must be a showing of disability or serious impairment of a physical function before recovery is allowed. But it does not necessarily follow that liability rests on the employer at the time the disease became disabling, as would be true in the typical ‘accident’ case. R.S. 23:1031.1 does not require that there be an accident in occupational disease cases. Also, Section 1031.1 states that a claimant cannot recover benefits for an occupational disease from a short-term employer, i. e., an employer for whom a plaintiff has worked for less than twelve months, unless the claimant can establish that he contracted such occupational disease during this short-term employment by an overwhelming preponderance of the evidence. Covington v. Rex Painting, Inc., 315 So.2d 368 [La.App. 4 Cir. 1975]; Bartie v. Zurich American Insurance Co., 205 So.2d 740 [La.App. 3 Cir. 1967].

“The court in Covington stated:

‘We can readily agree that the “contracting” of silicosis is difficult to pin-point. But we suppose that that very circumstance is one of the reasons for the Legislature’s provision that, in short-term employment, the plaintiff’s evidence must be the overwhelming preponderance. The Legislature presumably deemed it harsh and counter-productive to oblige an employer whose environment might provide one last straw to pay the price of all the straws that years of environment in similar previous employment contributed.’

“The medical evidence is clear that Hanlon’s silicosis was not contracted during the three-day employment by Sline in August, 1975. Accordingly, Sline, being a short-term employer, cannot be held responsible simply on the basis that the disease became disabling during this three-day period.

“PPG also argues that the court in Covington merely held that since the plaintiff had not worked for the employer for twelve months and could not prove he developed silicosis during that employment, that the plaintiff could not recover from the last employer. However, PPG argues, there is nothing in the opinion which states or implies that Covington can go back against any former employer. While it is true that the opinion does not go that far, there is nevertheless authority permitting an employee to recover from a former employer. See Chivoletto, (cited supra). The holding in Chivoletto is in keeping with the obvious spirit and intent of Section 1031.1.

“Among the possible results of this case most favorable to PPG is that both Sline and PPG be held liable in solido. Sline’s liability would be predicated on the theory that the disease was initially contracted while Hanlon was working for Sline as a long-term employer prior to his employment by PPG. It can be argued that Han-lon first contracted the disease during the three periods of approximately one month each while working under Jimmy Doran for Sline.

“In considering this possibility, the nature of silicosis should be noted. The court’s interpretation of the nature of this disease is substantially as follows. Silicosis develops as the result of the inhalation of silica particles into the lungs. These silica granules become embedded in the lungs and granulomas form over them, walling off these foreign bodies. As more silica particles are inhaled, more granulomas form, and the more granulomas that are formed, the more the vital capacity of the lungs is decreased. A number of years of inhaling the particles are required to disable the victim. Silicosis can exist in varying degrees, and not necessarily be disabling. The foreign bodies themselves do not decrease the vital capacity of the lungs, the granulomas do. The disease is progressive in the sense that it progresses by the continued inhalation of silica dust over a period of years. But it is not progressive in the sense that once contracted it progresses absent continued contact with disease-causing agents, such as a cancer does once it is contracted.

“If the disease progressed by and of itself once any silica particles were inhaled, the court would have no difficulty in placing at least partial responsibility on Sline since the evidence is to the effect that Hanlon’s initial contact with silica was made during the period he was employed by Sline prior to his employment by PPG. But the court does not believe that it is the intent of Section 1031.1 that in a silicosis ease liability is placed on a former employer simply because initial and minimal contact with silica is made by the employee during that period of employment. But for the employment by PPG, Hanlon would never have become disabled by silicosis. The short periods of exposure to silica particles prior to employment by PPG would have had no disabling effect whatsoever on Han-lon.

“It was the excessive exposure to silica particles for four consecutive years followed by five or six years of continued exposure to a lesser degree at PPG that caused the disability. Because of the nature of the disease it cannot realistically be said that the initial minimum contact with silica was the ‘contracting’ of the disease.

“For these reasons the court is of the opinion that Sline and Liberty Mutual are entitled to recover $12,500.00, without interest, from PPG. Costs of this proceeding to be divided equally between PPG on the one hand and Sline and Liberty Mutual on the other hand, as stipulated.”

The judgment of the trial court is affirmed. Costs of this appeal are assessed against PPG Industries, Inc.

AFFIRMED.


author: BEER, Judge. LEMMON, Judge,

text:
    Mrs. Beverly Strain, wife of Milton W. LEYDECKER, Sr. v. Milton W. LEYDECKER, Sr. Milton W. LEYDECKER, Sr. v. Mrs. Beverly Strain LEYDECKER.
    No. 8999 Consolidated with No. 9000.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 11, 1978.

      Jerome P. Halford, New Orleans, for plaintiff-appellant.
    Emile L. Turner, Jr., New Orleans, for defendant-appellee.
    Before LEMMON, SCHOTT and BEER, JJ.
   BEER, Judge.

Appellant, Beverly May Strain, the divorced wife of Milton Leydecker, Sr., sued for partition of the community alleged to have existed during , their marriage. By peremptory exception of no right or cause of action, appellee alleged that exorbitant community debts had caused him to file bankruptcy proceedings prior to the dissolution of the community; that all community assets and debts were listed in bankruptcy schedules; and that such schedules reflected an indebtedness which greatly exceeded the total assets of the community. He contended, in effect, that the Bankruptcy Act operated in such a way as to dissolve the community. The trial court maintained the exception.

By brief filed in this court, appellant alleges that certain real property located at 2928 Franklin Avenue in New Orleans (which had been listed in the bankruptcy schedule to show only appellee’s undivided one-half interest) was reacquired (in toto) by appellee as a result of the trustee’s disclaimer. However, appellee contends, also by brief, that the cash tendered for the disclaimer was his separate property, earned subsequent to dissolution of the community and was paid to reacquire full title to the property. In support of his contention that the disclaimer vested him with full title to the property, appellee avers that:

1. all community property is presumed to be included in the bankrupt estate of a husband since community debts will be discharged therefrom,
2. pursuant to 11 U.S.C. § 110, title to the property vested in the bankruptcy trustee, and
3. disclaimer by the trustee for $2,500 cash consideration was a sale transferring title of the entire property to his separate estate because of the alleged use of separate funds for said “purchase.”

Although the record came before us devoid of any evidence of the bankruptcy proceedings, the attorneys for the parties have, by stipulation at the time of oral argument in this court, now made those pleadings a part of the record. The bankruptcy pleadings do include a trustee’s disclaimer of the Franklin Avenue property for $2,500 cash. They also include a schedule which indicates that the bankrupt estate included only the bankrupt’s one-half interest in the property at 2928 Franklin Avenue. The property is valued at $4,000 on the schedule. The total shown as the bankrupt’s interest is one-half of that amount, $2,000. Even though appellee paid $2,500 for the disclaimer, it is difficult for us to comprehend how the disclaimer can be said to affect anything more or less than the bankrupt’s right, title and interest in the one half of the property which the schedule of assets lists as the bankrupt’s one-half interest. Apparently, appellant’s one-half interest was not scheduled in the bankruptcy proceedings and, as we see it, nothing more than the one-half interest of appellee was available to be released to him by the trustee’s disclaimer.

Since it is correct that disclaimer by the trustee revests title in the bankrupt as though no transfer to the bankruptcy trustee was ever made, such an order can do no more than restore to the bankrupt his scheduled interest therein.

Appellee may well have numerous valid claims for reimbursement from appellant including, perhaps, some part of the consideration for the disclaimer if separate funds were used, as alleged, to obtain same.

However, the well-pled allegations of appellant’s petition and the documents before us by stipulation make out a case of some community property left to be divided by partition subject to various credits, etc. Since a cause of action does appear to exist, this case must proceed to a trial on the merits where both parties will have a full opportunity to allege and stand ready to prove their various claims and counterclaims affecting the property sought to be partitioned.

The exceptions must be overruled and the case remanded. In view of this, we must address a further contention of appellant that the trial court erred in allotting this consolidated matter to Division “F” of the Civil District Court since it should have been allotted to Division “I,” where the separation proceedings bear a lower docket number than the divorce proceedings sought to be consolidated with them. Accordingly, appellant seeks to have the case remanded to Division “I.”

Although the general allotment of cases is covered by Rule 8, Sec. 9 of the rules for the Civil District Court for the Parish of Orleans, we are referred to no specific rule governing allotment where there has been consolidation of separate suits.

Compliance with generally accepted procedure would seem to indicate that the allotment should have been Division “I.” However, no motion was made at the trial court level to have the case reallotted, and objections to the allotment of a consolidated case cannot be first made on appeal. See, e. g., Union Garment Co., Limited, v. Newburger, 124 La. 820, 50 So. 740 (1910); Fluker v. DeGrange, 117 La. 331, 41 So. 591 (1906).

Accordingly, the judgment maintaining the exceptions dated February 9, 1977 is overruled. This case is remanded to Civil District Court, Division “F,” for further proceedings consistent with this opinion. Each party is to bear his own cost of this appeal.

REVERSED AND REMANDED.

LEMMON, Judge,

concurs and assigns reasons.

I am concerned that this decision may be construed to stand for the proposition that a purchaser does not acquire valid title to community immovable property from a bankruptcy trustee, if only the husband is adjudicated a bankrupt at the time when the spouses are living separate and apart, but are not divorced or judicially separated.

Normally, when the bankruptcy arises out of community debts, the filing of the petition by the husband vests the trustee with title to all of the community property for the benefit of the community’s creditors. 4A Collier, Bankruptcy ¶ 70.17[11] (14th ed. 1976). This v.iew represents an application to community property of the rule that the title of a bankrupt to immovable property is vested by operation of law in the trustee of the bankrupt’s estate as of the date of the filing of the petition initiating the bankruptcy proceeding. 11 U.S.C. § 110.

Milton Leydecker’s petition for bankruptcy was filed on March 29, 1974. On that date the parties were living separate and apart, and while his petition for divorce was then pending, the judgment of divorce was not rendered until February 28, 1975.

When the judgment of divorce was rendered, the dissolution of the community was retroactive to the date of the filing of the petition, but without prejudice to rights validly acquired in the interim between the commencement of the action and the recor-dation of the judgment. C.C. arts. 155,159. If the June, 1974 action by the trustee had been a valid bankruptcy sale to a third party, I would be inclined to find the purchaser’s title unassailable, because the husband then had legal capacity to convey the property, and his petition for bankruptcy was in effect a conveyance to the trustee of all community property for the benefit of the community’s creditors. But I conclude the transaction involved in this litigation was not a sale.

The only document in the bankruptcy proceedings referring to the trustee’s actions in regard to title to the subject property is the “Trustee’s Petition of Disclaimer & Abandonment”. That document petitions the court as follows:

“On the ground that there is no equity in the hereinafter described property for the estate(s) of the above named bankrupt(s), over and above such mortgages and/or other liens as may affect the said property and such exemptions as may apply thereto, or that if there is any such equity, it is not sufficient to justify administration,
“The undersigned trustee, who has become vested (in his said official capacity and under Federal law) with all such right, title and interest, if any, as the said bankrupt(s) had or may have had in and to the said property as of the date of the filing of the petition for adjudication of bankruptcy herein, does by these presents, subject to the approval of this Court (which approval is hereby prayed for), disclaim and abandon all such right, title and interest of the said bankrupt estate(s) in and to the following described property:
“FOR AND IN CONSIDERATION OF THE PRICE AND SUM OF $2,500.00:” (Then follows the property description.)

The trustee’s disclaimer or abandonment of the bankrupt’s property is simply not a sale of the property. The trustee has a duty to liquidate the bankrupt’s estate, but he has no duty to administer property so heavily encumbered as to offer no prospect of significant funds available for distribution, and the trustee may disclaim or abandon certain property when it is not practicable to see that property. The disclaimer or abandonment constitutes a refusal to administer the particular asset and a rejection of the title which otherwise had vested in the trustee by operation of law. When the trustee disclaims or abandons certain property, title revests in the bankrupt as if no assignment had been made and title had never vested in the trustee. 4A Collier, Bankruptcy ¶ 70.42 (14th ed. 1976).

The critical issue, therefore, is whether the trustee’s action was a sale or a disclaimer. Although ordinarily a sale of the bankrupt’s asset produces funds and a disclaimer does not, I view the petition for disclaimer in this case as an attempted disclaimer to the bankrupt for consideration rather than as a sale. The bankrupt’s valuation of the property at $4,000.00 and of his interest at $2,000.00 apparently referred to the equity, since the property was elsewhere in the schedules valued at $18,000.00 (although the mortgage balance was only $9,625.52). I interpret the trustee’s action as an exercise of judgment that a disclaimer for the consideration of $2,500.00 would benefit the creditors more than the sale of the property.

The title therefore reverted to the community, and Mrs. Leydecker has a right of action to demand partition of the community property.

      . This stated difference of about $8,500.00, plus the sparsity of other community debts, casts some doubt on the purpose of the bankruptcy. Indeed, when the summary of debts and assets is corrected to show the real estate value as $18,000.00 rather than $2,000.00, the assets almost exceed the debts.


text:
    Alfred R. KYLE, Plaintiff-Appellee, v. Anita Evans KYLE, Defendant-Appellant.
    No. 6587.
    Court of Appeal of Louisiana, Third Circuit.
    April 28, 1978.
    Jumonville, Hartley, Plauché & Broad-hurst by Colleen McDaniel, Lafayette, for defendant-appellant.
    Voorhies & Labbé by Mark Bienvenu, Lafayette, for defendant-appellant.
    David L. Dawson, Jr., Baton Rouge, for plaintiff-appellee.
    Before DOMENGEAUX, FORET and CUTRER, JJ.
   FORET, Judge.

MOTION TO DISMISS

The plaintiff-appellee, Alfred R. Kyle, moves to dismiss the appeal of the defendant-appellant, Anita Evans Kyle. The motion is opposed.

We grant the motion to dismiss.

On October 10, 1977, plaintiff filed suit seeking the permanent care, custody and control of the minor child, Tina Marie. The defendant responded by filing an Exception of Lack of Subject Matter Jurisdiction; on January 26, 1978, the trial judge signed a judgment overruling the exception. The defendant has taken an appeal from this judgment.

The plaintiff-appellee moves to dismiss the appeal arguing that the judgment complained of is a non-appealable interlocutory decree. We agree.

This court has long held that a judgment overruling an exception of lack of subject matter jurisdiction is a nonappealable interloctory decree. Stahlman Lumber Company—Division of Staco Manufacturing Company v. Ferrill, 320 So.2d 331 (La.App. 3 Cir. 1975).

Defendant-appellant concedes that the judgment is interlocutory, but argues that it is appealable under C.C.P. Art. 2083 because irreparable injury may result. She asserts that if she is forced to defend this suit, she will not only have to fight a lawsuit, but will have to suffer the expense and indignity of having to come to another state to defend her rights for the custody of her daughter in a state which, she submits, is without jurisdiction or interest in the matter of her daughter’s custody.

It is well settled that the inconvenience and expense incurred in the defense of a lawsuit does not constitute irreparable injury within the meaning of C.C.P. Art. 2083. Mauterer v. Tillery, 328 So.2d 755 (La.App. 1 Cir. 1976).

APPEAL DISMISSED.


author: SUGG, Justice,

text:
    Doyle THOMAS v. ESTATE of Mrs. Ruby EUBANKS, Deceased, Miss Lottie Thomas, Administratrix and the Mechanics Savings Bank.
    No. 50234.
    Supreme Court of Mississippi.
    May 3, 1978.
    Gibson & Newlin, Donald F. Newlin, Bruce, for appellant.
    Moore & Moore, Paul M. Moore, Sr., Calhoun City, for appellees.
    Before SUGG, WALKER and COFER, JJ.
   SUGG, Justice,

for the Court:

This appeal involves the question of whether a certificate of deposit payable to the order of two persons in the alternative created a joint account with the right of survivorship. On April 6,1973 the Mechanics Bank of Water Valley, Mississippi issued a certificate of deposit in the amount of $14,000 payable as follows:

Mrs. Ruby Eubanks has deposited in this Bank $14,000.00 payable to the order of herself or Doyle Thomas in current funds 12 months after date on the return of this certificate properly endorsed with interest at 5% per cent, per annum.

Doyle Thomas filed suit in the Chancery Court of Calhoun County against the Ad-ministratrix of the Estate of Mrs. Ruby Eubanks and the Mechanics Savings Bank of Water Valley and claimed ownership of a certificate of deposit that was in the possession of Mrs. Eubanks at the time of her death. The chancery court held the certificate to be part of the estate, there having been no completed gift to Doyle Thomas. We agree with the chancery court.

At the time of Mrs. Eubanks’ death the certificate was in her possession and was cashed by the administratrix of her estate on April 6, 1974 before Thomas filed his suit. The proceeds of the certificate thus passed from the Mechanics Bank which had no further liability on the certificate because it paid the proceeds to the administra-trix. Sections 75-3-603 and 81-5-63 Mississippi Code Annotated (1972).

A final decree in the estate of Mrs. Eu-banks was signed on November 14, 1974 directing that the proceeds of the certificate of deposit which had been collected by the administratrix be retained by the ad-ministratrix pending further orders of the court. Thomas filed his bill of complaint on July 5, 1974. The administratrix and the Mechanics Bank filed their answers which included affirmative defenses and a plea in bar. The case was heard on the plea in bar on November 10, 1976 resulting in a decree of November 17, 1976 adjudging that the certificate was a part of the estate of Mrs. Eubanks.

Thomas contends that he was entitled to the certificate of deposit under the provisions of section 81-5-63 Mississippi Code Annotated (1972). The appellees contend that the administratrix of Mrs. Eu-banks’ estate was the holder of the certificate of deposit and had the right to cash it under the provisions of the Uniform Commercial Code. We are faced with the problem of reconciling section 81-5-63 Mississippi Code Annotated (1972) with the Uniform Commercial Code insofar as the Uniform Commercial Code affects certificates of deposit. In the case of Surles v. State of Miss., 357 So.2d 319 (Miss., handed down April 12, 1978) we stated:

It is well settled that . . statutes which deal with the same subject matter, although in apparent conflict, should, so far as reasonably possible, be construed in harmony with each other so as to give force and effect to each . . .’ McCullen v. State ex rel. Alexander, 217 Miss. 256, 267, 63 So.2d 856 (1953). We also have stated that ‘[t]he words, phrases and sentences of a statute are to be understood as used, not in any abstract sense, but with due regard to the context, and in that sense which best’harmonizes with all other parts of the statute.’ State ex rel. Patterson v. Board of Supervisors of Warren County, 233 Miss. 240, 271-72, 102 So.2d 198 (1958), quoting 82 C.J.S. Statutes § 348 (1953).

If we adopt the contention of Thomas, then provisions of the Uniform Commercial Code pertaining to certificates of deposit would be rendered meaningless. In order to resolve this question we should first examine our decisions relating to section 81-5-63.

One of our decisions under 81-5-63 holds that where a deposit is made in the name of two persons, payable to either, the statutory presumption, in absence of evidence to the contrary, is sufficient to establish right of survivor to the deposit. Re Lewis, 194 Miss. 480, 13 So.2d 20 (1943). This case dealt with an ordinary checking account in a bank and overruled Godwin v. Godwin, 141 Miss. 633, 107 So. 13 (1926).

In Leverette v. Ainsworth, 199 Miss. 652, 23 So.2d 798 (1946) we held that money deposited to the credit of depositor’s mother subject to check by the depositor only belonged to his estate upon his death in the absence of substantial evidence that depositor clearly intended to create an account with essential elements of joint ownership and supervivorship. F. M. Leverette deposited $5100 to the credit of his mother, and the deposit slip which evidenced the deposit showed that the deposit was to the credit of Mrs. Annie C. Leverette, the depositor’s mother, but it bore the notation on its face made by the cashier at the direction of the depositor as follows:

‘This A/C subject to check by F. M. Lev-erette at any time,’ and the signature card, contemporaneously taken to cover the account, carried the statement: ‘Authorized signatures, F. M. Leverette, subject to check by F. M. Leverette at any time.’
The Court stated:
F. M. Leverette died on April 4, 1944, and appellee was duly appointed adminis-tratrix of his estate. On May 10, 1944, she filed her bill as administratrix to have the deposit declared the property of the estate. Upon final hearing a decree was entered in accordance with the prayer of the bill, and we think the court was correct.
It is well settled that a person may make a gift in severalty to another by making a deposit of the subject of the gift in a bank to the credit of the donee provided the donor in so doing retains no such control over the deposit as will enable him to withdraw it for his own personal uses or purposes. If he retains a control such as mentioned, and as was retained in the present case, the transaction will be ineffective as a gift in sever-alty and the deposit will remain the property of the depositor. Meyer v. Meyer, 106 Miss. 638, 64 So. 420; Yates’ Estate v. Alabama-Mississippi Conference Ass’n, 179 Miss. 642, 176 So. 534; Smith v. Taylor, 183 Miss. 542, 184 So. 423; 32 Am.Jur. Gifts, Sec. 101; 38 C.J.S. Gifts § 49.
It is equally well settled that a person may make a gift in joint tenure by making a deposit of the subject of the gift in a bank in such a manner that it shall stand to the credit, as joint owners, of the donor and the donee, as where, for illustration, John Doe makes a deposit to the credit of ‘John Doe or Richard Roe,’ which under the statute, Section 5205, Code 1942, Section 3809, Code 1930, would raise the presumption that the deposit was intended to be in joint ownership, and by the further force of the statute, subject to withdrawal by either of the joint owners. Precise form is not essential if and when formal deficiencies are supplied by definite proof; so that when the facts, well proved, are sufficient to disclose that there was a clear intention to create a right which embraces the essential elements of joint ownership and survivorship in respect to the particular bank deposit, or account, the intention so proved will be given effect and the survivor held entitled to the fund. Stephens v. Stephens, 193 Miss. 98, 8 So.2d 462; In re Lewis’ Estate, 194 Miss. 480, 13 So.2d 20. (199 Miss. at 656, 657, 23 So.2d at 799).

The Court held that the reasonable inferences to be drawn from the evidence indicated that the depositor did not intend to create an account which embraced the essential elements of joint ownership and sur-vivorship, but that he intended exactly what he did, namely, to make an ostensible deposit in the sole name of another retaining dominion over it for his own uses.

In Shearin v. Coleman, 201 Miss. 193, 28 So.2d 841 (1947), suggestion of error overruled March 17, 1947, we held that a checking account in the name of Mr. or Mrs. J. H. Barrow created joint ownership with the right of survivorship in an account under the provisions of section 5205 Mississippi Code Annotated (1942). We also held that three time certificates issued to Mr. or Mrs. J. H. Barrow, payable to the order of either, or survivor, also created the presumption that the time certificates created joint ownership with the right of survivorship under section 5205.

In Myers v. Laird, 230 Miss. 675, 93 So.2d 828 (1957) we held that a certificate of deposit payable to Fannie B. Regan or Ellis Brumfield became the property of Ellis Brumfield upon the death of Mrs. Myers and was no portion of her estate.

Mrs. Fannie B. Regan Myers executed a warranty deed which conveyed to her niece, Jerry Nell Laird, an 80 acre farm and reserved a life estate in the grantor. Mrs. Myers took the deed to her brother, Ellis Brumfield, and advised him that it was a deed to Jerry Nell Laird with instructions to keep it to be delivered after her death. Mrs. Myers had a lock box in the Tylertown Bank and when she handed the deed to her brother, she also gave him a key to the lock box which contained a joint certificate of deposit payable to her or her brother. She did not tell him to place the deed in the lock box. When Mrs. Myers gave her brother a key to the lock box this constituted constructive delivery of the certificate of deposit to her brother.

The only two cases involving certificates of deposit are Shearin and Myers. In Shea-rin the certificates of deposit were issued in the name of Mr. or Mrs. J. H. Barrow, payable to the order of either, or survivor; in Myers, the certificate of deposit was delivered to the surviving payee. Both cases are different factually from the case at bar and were decided before the Uniform Commercial Code was adopted.

The certificate of deposit in the case before the Court represented a deposit of $14,000 by Mrs. Eubanks. It was payable to her or Thomas and contained no reference to survivorship rights. Appellees argue that, unlike deposits in checking or savings accounts in banks, which are controlled by section 81-5-63 Mississippi Code Annotated (1972) certificates of deposit are controlled by the provisions of the Uniform Commercial Code.

Section 75-3-104 Mississippi Code Annotated (1972) provides in part as follows:

(1) Any writing to be a negotiable instrument within this chapter must
(a) be signed by the maker or drawer; and
(b) contain an unconditional promise or order to pay a sum certain in money and no other promise, order, obligation or power given by the maker or drawer except as authorized by this chapter; and
(c) be payable on demand or at a definite time; and
(d) be payable to order or to bearer.
(2) A writing which complies with the requirements of this section is
(c) a ‘certificate of deposit’ if it is an acknowledgment by a bank of receipt of money with an engagement to repay it;
(3) As used in other chapters of this code, and as the context may require, the terms ‘draft,’ ‘check,’ ‘certificate of deposit’ and ‘note’ may refer to instruments which are not negotiable within this chapter as well as to instruments which are so negotiable.

The certificate of deposit at issue is a negotiable instrument under the foregoing section. It was signed by the maker, contained an unconditional promise to pay a sum certain of money, was payable at a definite time, was payable to order, and was an acknowledgment by the Mechanics Bank of receipt of money with an engagement to repay it. We agree with appellees that the Uniform Commercial Code controls certificates of deposit which meet the requirements of the foregoing section. To hold otherwise, section 75-3-104 of the Uniform Commercial Code would be meaningless.

Negotiable instruments payable to two or more persons in the alternative, in this case the certificate of deposit, may be negotiated, discharged, or enforced by the holder as provided by section 75-3-116 Mississippi Code Annotated (1972). The section follows:

An instrument payable to the order of two (2) or more persons
(a) if in the alternative is payable to any one of them and may be negotiated, discharged or enforced by any of them who has possession of it;
(b) if not in the alternative is payable to all of them and may be negotiated, discharged or enforced only by all of them.

At the trial it was stipulated that the certificate of deposit was in the possession of Mrs. Eubanks at the time of her death. It had not been negotiated by her to Thomas in accordance with section 75-3-202 Mississippi Code Annotated (1972). It was in her possession as a holder in due course therefore it was her property when she died and became an asset of her estate under section 91-7-91, Mississippi Code Annotated (1972).

Thomas also contends that the court erred when it refused to hear witnesses in his behalf on the plea in bar. It was stated by the attorney for Thomas in open court that he had witnesses present and was prepared to offer testimony on the plea in bar that Mrs, Eubanks tendered the certificate of deposit to Thomas during her lifetime and that she stated on two occasions to a disinterested third party that the proceeds represented by the certificate were his property. Thomas’ argument under this assignment of error raises the question of whether there was an actual or constructive delivery of the certificate to him during the lifetime of Mrs. Eubanks. We are unable to ascertain from this stipulation whether Thomas claimed the certificate as a gift inter vivos or as a gift causa mortis. However, it does not matter which type gift Thomas was claiming because delivery and relinquishment of control are requisites of both gifts inter vivos and causa mortis.

The requirements necessary to constitute a gift inter vivos were stated in Jenkins v. Jenkins, 278 So.2d 446 (Miss.1973) as follows:

A donor competent to make a gift, a voluntary act on his part with the intention to make a gift, the gift must be complete with nothing left to be done, the property must be delivered by the donor and accepted by the donee and the gift must be gratuitous and irrevocable. (278 So.2d at 449).

A delivery either actual, constructive, or symbolical is an element essential to the validity of a gift causa mortis. Johnson v. Grice, 140 Miss. 562, 106 So. 271 (1925); Pace v. Pace, 107 Miss. 292, 65 So. 273 (1914). Yates’ Estate v. Ala. Miss. Conf. Ass’n, held that one of the essentials of a valid gift causa mortis, as well as a gift inter vivos, is that the property must be delivered in such manner that the donor retains no control or dominion over it.

The chancellor did not err when he refused to hear the proffered testimony because tender by Mrs. Eubanks of the certificate of deposit would not constitute delivery and relinquishment of control by her. Neither would proof that Mrs. Eubanks told a disinterested third party that the proceeds of the certificate were the property of Thomas constitute delivery and relinquishment of control by her. The proffered testimony was not sufficient to show either a valid gift inter vivos or causa mortis.

AFFIRMED.

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

      . When a deposit has been made or shall hereafter be made in the name of two (2) or more persons, payable to any one (1) of such persons, or payable to any one (1) of such persons or the survivor, or payable to any one (1) of such persons or to any one (1) of the survivors, such deposit or any part thereof or interest or dividends thereon, may be paid to any one (1) of the said persons whether one (1) or more of said persons be living or not, and the receipt of acquittance of the person so paid shall be a valid and sufficient release and discharge to the bank for any payment so made.. Any bank may pay to the nearest relative of a deceased depositor, without necessity of administration, any sum to the credit of the decedent not exceeding one thousand dollars ($1,000.00). This section shall apply to all banking institutions, including banks and postal savings banks within the state.
      The above section was first enacted as Section 43, Chapter 146 Mississippi General Laws of 1934 and appeared in the Mississippi Code Annotated of 1942 as Section 5205. It was amended by Chapter 250, Mississippi General Laws of 1966 and by Chapter 316, Section 10-105 Mississippi General Laws of 1966. Chapter 316 is the Uniform Commercial Code. Chapter 251 Mississippi General Laws of 1968 repealed Section 5205, Chapter 250 Mississippi General Laws of 1966 and Section 10-105, Chapter 316 Mississippi General Laws of 1966. Section 1 of Chapter 251 Laws of 1968 is the same as Section 81-563 set forth above.

      . Mrs. Regan later married H. H. Myers and was survived by him.

      . Section 75-3-302 Mississippi Code Annotated (1972).
      The fact that Mrs. Eubanks was named as a payee in the certificate along with Thomas did not affect her status as a holder in due course. Section 75-3-302(2). Ricks v. Bank of Dixie, 352 So.2d 798 (Miss., 1977).

      . Section 91-7-91 provides in part as follows:
      The goods, chattels, personal estate, choses in action, and money of the deceased, or which may have accrued to his estate after his death from the sale of property, real, personal, or otherwise, and the rent of lands accruing during the year of his death, whether he died testate or intestate, shall be assets and shall stand chargeable with all the just debts, funeral expenses of the deceased, and the expenses of settling the estate.


text:
    Richard E. STONE v. SHERIFF OF GRENADA COUNTY, Mississippi.
    No. 50492.
    Supreme Court of Mississippi.
    May 10, 1978.
    Parker, Averill, Funderburk & Butts, David 0. Butts, Paul S. Funderburk, Tupe-lo, for appellant.
    A. F. Summer, Atty. Gen., by Karen Gil-foy, Asst. Atty. Gen., Jackson, for appellee.
    Before SMITH, P. J., and SUGG and BROOM, JJ.
   AFFIRMED.


author: LEE, Justice,

text:
    CHRYSLER CREDIT CORPORATION v. BANK OF WIGGINS.
    No. 50264.
    Supreme Court of Mississippi.
    May 10, 1978.

      Wells, Wells, Pittman & Wicker, William B. Wicker, Crymes G. Pittman, Calvin L. Wells, Jackson, Eaton, Cottrell, Galloway & Lang, Gulfport, for appellant.
    Parsons & Matthews, Jack Parsons, Wiggins, for appellee.
    Before ROBERTSON, LEE and BOWLING, JJ.
   LEE, Justice,

for the Court:

The Circuit Court of Stone County entered judgment against Chrysler Credit Corporation for Bank of Wiggins in the amount of thirty-six thousand five hundred ninety dollars ninety cents ($36,590.90), upon a complaint for delivery and judgment. Chrysler appeals and assigns the following errors in the trial below:

(1) The decision of the court in finding the security interest of appellant to be subordinated to that of appellee is contrary to the law and the facts. (Also the court erred in overruling the motion of appellant for new trial and the judgment is against the great weight of the evidence).

(2) The court erred in admitting at the second trial, over the objection of appellant, Plaintiff’s Exhibit # 1.

(3) The court erred in rejecting, or in refusing to allow appellant to lay a basis for, at the second trial, evidence on behalf of appellant, to-wit: a printout of an inventory of parts taken in October and November, 1975.

(4) The decision of the court giving ap-pellee judgment for the used automobiles was contrary to the law and the facts.

(5) The verdict of the court was contrary to the law in denying appellant the option of returning the parts and the inventory.

(6) The actions of the court at the hearing of February 25,1976, deprived appellant of its constitutional rights of due process and equal protection of the laws.

(7) The court erred in overruling the motion of appellant to dismiss for lack of jurisdiction.

The Bank of Wiggins filed a complaint for delivery and judgment against Barring-er Motor Company [Barringer] and Chrysler Credit Corporation [Chrysler], alleging that certain property belonging to the bank under an installment promissory note and security agreement executed by Barringer on November 22, 1974, was removed from the business premises of Barringer by Chrysler without the consent or permission of the bank. Barringer released the property on February 20, 1975, to satisfy debts it owed Chrysler on the purchase of new automobiles. The bank demanded judgment for the outstanding balance due under the terms of the note and security agreement. Chrysler answered and alleged that Bar-ringer granted unto Chrysler a security interest on February 20,1975, in the property listed in the complaint, and that such security interest was perfected by filing a financing statement which entitled it to priority over the security interest of the Bank of Wiggins.

After trial, on December 8, 1975, judgment was entered in favor of the bank, since the court found Barringer in default under the terms of the note (Bank of Wiggins) when it released the property to Chrysler said property having been previously pledged by Barringer as security for the indebtedness to the Bank of Wiggins. A second trial was held on February 25, 1976, solely for the purpose of ascertaining the property involved and the amount of damages to be awarded the bank.

I.

Was the decision of the court in finding the security interest of appellant to be subordinated to that of appellee contrary to the law and the facts?

Barringer is a corporation which handled Chrysler-Plymouth products, and it financed the sales of new automobiles under a floor-plan agreement with Chrysler Credit Corporation. On November 22, 1974, Bar-ringer obtained a loan in the sum of forty-one thousand nine hundred dollars ($41,-900.00) through the Bank of Wiggins on a Small Business Administration note. The security agreement covered personal property described as: “All shop equipment, tools, furniture and fixtures, accounts receivable, office equipment, parts, and inventory . . . ” A financing statement was filed November 26, 1974, in the Chancery Clerk’s office of Stone County pursuant to the Uniform Commercial Code. The statement showed that Barringer was indebted to the Bank of Wiggins, and it covered the property hereinabove described. The financing statement was not filed in the office of the Secretary of State.

Barringer was indebted to Chrysler on February 19, 1975, in the sum of approximately twenty-eight thousand dollars ($28,-000) on new automobiles under the floor-plan agreement. The property covered by the security agreement to the Bank of Wiggins was removed from Barringer’s premises on February 19 and 20 by Chrysler. At that time, Barringer executed a release of the property and a security agreement on same to Chrysler. They were signed at the insistence of Russell Tatom, Branch Manager for Chrysler.

Barringer testified that he told Chrysler (Russell Tatom) he had secured the loan from Bank of Wiggins before the Chrysler loan was closed, that he had put up the entire corporate assets, including all inventory and parts, as security for the bank loan, except that such loan did not include new cars. Barringer further testified that, on the day Chrysler removed the property from the Barringer premises, he told Tatom the property was secured on a security instrument to the Bank of Wiggins, that he did not have a copy of the security agreement with him, but that he could obtain a copy the next day from the Bank of Wiggins. According to Barringer, Tatom replied that he was not interested. Ferris O’Neal, former owner of the dealership, testified that he was present when the business was closed on February 20, 1975, and he told Tatom that Barringer owed other people for the property; Tatom answered he could not care less who Barringer owed for the property and Chrysler was going to take it anyway. Tatom testified that Chrysler took possession of the property February 20, 1975, after releases for the new and used inventory, used ears, parts and furniture of the dealership, were signed by Barringer. He admitted he did not check the records in the chancery clerk’s office to determine whether a financing statement covering the property had been filed, even though such was his responsibility. Further, the last check he made of the public records was in August of 1974. He did not see the financing statement prior to taking the assets of the dealership. Tatom also admitted Barringer told him the bank had made an SBA loan to the dealership and he (Barringer) put up all his property for the loan. Tatom stated he assumed it was Barringer’s personal property and he did not inquire whether Barringer encumbered his business property. Section 75-9-401(l)(c) provides that the bank’s financing statement be filed in the office of the Secretary of State and, in addition, in the office of the Chancery Clerk of Stone County, Mississippi. However, Subsection (2) provides the following:

“(2) Except as provided in subsection (4B) of Section 9-313 [§ 75-9-313], a filing which is made in good faith in an improper place or not in all of the places required by this section is nevertheless effective with regard to any collateral as to which the filing complied with the requirements of this chapter and is also effective with regard to collateral covered by the financing statement against any person who has knowledge of the contents of such financing statement.”

The crucial question here is whether or not Chrysler had such knowledge of the contents of the financing statement that the security interest obtained by the bank was perfected, even though not filed with the Secretary of State. The trial court found that Russell Tatom, agent for Chrysler, had knowledge the property taken by Chrysler was encumbered by a security agreement to the bank. The principle is well settled that a finding of the court based on conflicting evidence will not be disturbed on appeal unless it is unsupported by credible evidence, clearly erroneous or against the preponderance of credible testimony. Brent v. Cox, 246 So.2d 552 (Miss.1971); Ellis v. Ellis, 248 Miss. 483, 160 So.2d 904 (1964).

The information given by Barringer and O’Neal to Chrysler’s manager constituted knowledge of the contents of the financing statement, and the security interest of Bank of Wiggins was perfected and was paramount to that of Chrysler. There is no merit in this assignment and the trial court did not err in overruling appellant’s motion for a new trial on the ground that the judgment was contrary to the weight of the evidence.

II.

Did the court err in admitting at the second trial Plaintiff’s Exhibit No. 1?

The second trial was held to determine the value of the property. Appellee offered, and the court admitted, in evidence an inventory of parts taken on December 31,1974, seven weeks prior to the time that the entire stock and inventory was taken by Chrysler. Appellant contends that the document was not relevant to show the value of the parts taken on February 20, 1975, that it is hearsay because Barringer had no personal knowledge of the contents, and that it violates the best evidence rule because it is not the best evidence of the prices of the items on the inventory. Bar-ringer testified about how the inventory was taken, how the document was prepared, what the symbols contained in the document meant, and that it was prepared under his supervision by his parts and service manager. The inventory was relevant and was admissible since the instrument was properly authenticated and identified by Barringer. Tippit v. Hunter, 205 So.2d 267 (Miss.1967); Rayner v. Lindsey, 243 Miss. 824, 138 So.2d 902 (1962).

There is no merit in the contention that the inventory violates the best evidence rule. The instrument was introduced to show that certain parts were in stock at Barringer Motor Company on December 31, 1974, and to show the value of those items. It was the original document prepared at the time the inventory was made. The best evidence rule is stated as follows:

“In proving the terms of a writing, where the terms are material, the original writing must be produced unless it is shown to be unavailable for some reason other than the serious fault of the proponent.” McCormick, Handbook on Evidence, § 230, at 560 (2d ed. 1972).

III.

Did the court err in refusing to allow appellant to lay a basis for, at second trial, a printout of an inventory of parts taken in October and November of 1975?

In King v. State ex rel. Murdock Acceptance Corp., 222 So.2d 393 (Miss.1969), the Court stated the foundation for admitting a computer printout into evidence, as follows:

“(1) . . . [T]he electronic computing equipment is recognized as standard equipment, and (2) the entries are made in the regular course of business at or reasonably near the time of the happening of the event recorded, and (3) the foundation testimony satisfies the court that the sources of information, method and time of preparation were such as to indicate its trustworthiness and justify its admission.” 228 So.2d at 398.

Appellant failed to lay the proper foundation for introduction of said evidence, and further failed to request that the document be admitted. There is no merit in this assignment.

IV.

Was the decision of the court giving appellee judgment for the used automobiles contrary to the law and the facts?

Appellant argues that because four of the five used automobiles were purchased from the proceeds of the sale of cars financed by appellant, on a standard form trust receipt, its interest had priority over the Bank of Wiggins’ interest under Mississippi Code Annotated Section 75-9-312(3) and Section 75-9-312(5)(b) (1972).

Mississippi Code Annotated Section 75-9-306 (1972) is intended to cover sales of collateral which are not authorized by the secured party. Subsection (2) is as follows:

“(2) Except where this chapter otherwise provides, a security interest continues in collateral notwithstanding sale, exchange or other disposition thereof by the debtor unless his action was authorized by the secured party in the security agreement or otherwise, and also continues in any identifiable proceeds including collections received by the debtor.”

The trust receipt provides that Barring-er’s possession was solely for the purpose of selling or exchanging the property and that Chrysler had a security interest in proceeds of the sale. Section 75-9-306(1) defines “proceeds” as:

“(1) ‘Proceeds’ includes whatever is received when collateral or proceeds is sold, exchanged, collected or otherwise disposed of. The term also includes the account arising when the right to payment is earned under a contract right. Money, checks and the like are ‘cash proceeds.’ All other proceeds are ‘noncash proceeds.’ ”

Chrysler failed to identify the proceeds as contemplated by the above section. No showing was made that the used cars were purchased from the proceeds of new automobile sales. The Bank of Wiggins’ security interest covered inventory which included these used cars. The trial court did not err in allowing appellee the value of the used cars taken by Chrysler.

V.

Was the judgment of the court contrary to the law in denying appellant the option of returning the parts and the inventory?

The trial court found that it was unable to determine what property was presently retained by Chrysler, what property had been disposed of and whether the condition of the property was the same as when taken. The record does indicate that five used automobiles were disposed of by Chrysler and, therefore, were incapable of being returned. Thus, it cannot be said that the trial court erred in allowing judgment in favor of the Bank of Wiggins for the value of the property listed on its security agreement shown to have been taken by Chrysler. Appellant contends that an action brought for claim and delivery is similar to an action in replevin and that appellant should have had a choice of either returning the property or paying the value of the property. In Standard Finance Corp. v. Breland, 249 Miss. 413, 163 So.2d 232 (1964), the Court in defining measure of damages in a replevin action stated:

“Since this case must be retried, we feel that it is in order to set forth certain pertinent matters. The damages to be recovered in replevin must be connected with, and incident to, the contest over possession of the property. Where the property has a usable value, the successful party may be entitled to recover damages for the value of such use during the period he was wrongfully deprived thereof. In that case the damage is to be estimated by the ordinary market price of the use of such property, covering a period commencing with the wrongful detention and ending at the time of the trial, unless the facts of the case were such as to authorize the allowance of exemplary, punitive damages, and in the absence of facts which would authorize the application of any different rule. (See Taylor v. Morton, 61 Miss. 24.) Under ordinary circumstances the measure of damages is the value of the property at the time of the taking, with interest from that date to the date of the verdict.” 249 Miss. at 428, 163 So.2d at 238-239.

VI.

Was appellant denied its constitutional rights of due process and equal protection?

There is no showing of any denial of either substantive or procedural due process, and there is no merit in this assignment.

VII.

Did the court err in overruling the motion of appellant to dismiss for lack of jurisdiction?

Mississippi Code Annotated Section 11-38-1 (Supp.1976) sets forth the requirements in a declaration for claim and delivery as follows:

“Any person with an enforceable lien on any personal property, or right to the immediate possession thereof, or who asserts that such property has been wrongfully taken or detained may bring an action for claim and delivery by filing a complaint in writing, under oath, describing the property, setting forth his claim, share or interest therein, attaching an itemized account, if required, and giving the names of any other persons who have a similar or other claims or interest in such property. Thereupon the clerk or justice shall issue a writ directed to the proper officer to value the property, or so much thereof as may be necessary to satisfy the plaintiff’s demand and cost, and to summon the persons named in the affidavit to appear in court, at the time fixed, to answer the complaint.”

Appellee totally complied with the requirements of the section, and the court had jurisdiction to consider the matter. It was not necessary to allege that the value of the property in question exceeded two hundred dollars ($200.00). Therefore, this assignment is without merit.

There being no prejudicial errors in the trial, the judgment of the lower court is affirmed.

AFFIRMED.

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


text:
    Allen CURB v. STATE of Mississippi.
    No. 50435.
    Supreme Court of Mississippi.
    May 17, 1978.
    Thomas Morris, Morris & Coats, Cleveland, for appellant.
    A. F. Summer, Atty. Gen. by Catherine W. Underwood, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before SMITH, P. J., LEE and COFER, JJ., and WILLIAM R. LAMB, Commissioner.
   AFFIRMED.

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


text:
    Fred GASSION and Rainey Wilborn v. STATE of Mississippi.
    No. 50460.
    Supreme Court of Mississippi.
    May 17, 1978.
    R. M. P. Short, Sardis, for appellants.
    A. F. Summer, Atty. Gen. by Robert D. Findley, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before ROBERTSON, P. J., and LEE and BOWLING, JJ.
   AFFIRMED.

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

COFER, J., took no part.