author: MARCUS, Justice.

text:
    STATE of Louisiana v. Lionel RUSSELL.
    No. 60051.
    Supreme Court of Louisiana.
    Dec. 19, 1977.

      Fredrick R. Tulley, Taylor, Porter, Brooks & Phillips, Baton Rouge, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie B. Brown, Dist. Atty., John W. Sinquefield, Marilyn C. Castle, Asst. Dist. Attys., for plaintiff-ap-pellee.
   MARCUS, Justice.

Lionel Russell was charged by bill of information with simple burglary in violation of La.R.S. 14:62. After a trial by a judge, defendant was found guilty as charged and sentenced to serve three years at hard labor. The court suspended the execution of the sentence and placed defendant on three years supervised probation with the specific conditions that he enroll in the Community Corrections and Rehabilitation Center and pay the victim the sum of thirty-five dollars ($35.00) within one year. On appeal, defendant relies on four assignments of error for reversal of his conviction and sentence.

ASSIGNMENT OF ERROR NO. 1

Defendant contends the trial court erred in failing to find the evidence insufficient as a matter of law to prove beyond a reasonable doubt that defendant committed simple burglary. Defendant urges in brief that no evidence was presented to prove that defendant intended to commit theft (or a felony) within the burglarized structure, an essential element of the crime charged.

No motion for a judgment of acquittal or motion for a new trial appears of record to properly present the issue which defendant urges. In criminal matters, the scope of this court’s appellate jurisdiction extends only to questions of law. La.Const. art. 5, § 5(C). Only where defendant has moved for a judgment of acquittal in a trial by the judge alone (La.Code Crim.P. art. 778) or for a new trial (La.Code Crim.P. art. 851) based upon the contention that there is no evidence of an essential element of the crime charged is a question of law presented which this court can review. State v. Blackstone, 347 So.2d 193 (La.1977); State v. Alexander, 339 So.2d 818 (La.1976). Hence, this issue is not properly before this court.

In any event, the record reveals some evidence of intent to commit a theft within the burglarized structure. Edward L. Daigre, victim of the alleged burglary, testified that he saw defendant reaching into the cab of his previously locked truck which was located in his driveway. Mr. Daigre stated that he went to get his gun and returned to see defendant walking away from his truck holding his chain hoist. He called to defendant to stop, and defendant turned on him with a gun. Mr. Daigre fired two shots; the second shot wounded defendant. Defendant dropped the hoist and escaped on foot leaving a trail of blood. There was evidence that a small glass vent on the truck had been broken.

After reviewing the record, we are satisfied that the state presented some evidence of intent to commit a theft within the burglarized structure, a proper standard of appellate review in criminal cases. La.R.S. 15:445; State v. Walker, 328 So.2d 87 (La. 1976); State v. Moore, 302 So.2d 284 (La. 1974); State v. Kado, 300 So.2d 461 (La. 1974).

Assignment of Error No. 1 is without merit.

ASSIGNMENTS OF ERROR NOS. 2 AND 3

Defendant contends the trial court erred in denying his motion fot a mistrial and his motion for a continuance on the ground that the state’s evidence varied from the information furnished by the state in the bill of particulars.

The motion for a bill of particulars requested, inter alia:

Identify each of the persons, if any, by name and current address, if known, who are claimed to have participated in the offense charged or who are claimed to have been accessories or co-conspirators in the offense charged.

In response to this request, the state named only defendant, Lionel Russell.

During trial, the state asked Mr. Daigre to tell what happened on the night of the alleged burglary. He testified that he saw a green Ford, driven by an unknown person, parked across his driveway with the motor running while defendant was looking in the truck. He further testified that, although defendant attempted to grab and hold on to the side of the car as it left the scene, he was unsuccessful in his efforts and escaped on foot leaving a trail of blood from his wound. Defendant moved for a mistrial and made a motion for a continuance. Both motions were denied.

The proper procedure to amend a bill of particulars is set forth in La.Code Crim.P. art. 488, which provides that, when there is a variance between the allegations of a bill of particulars and the evidence offered in support thereof, the court may order the bill of particulars amended in respect to the variance, and then admit the evidence. Thereafter, if it is shown, on motion of the defendant, that he has been prejudiced in his defense on the merits by the variance with respect to which an amendment is made, the court shall grant a continuance for a reasonable time. La.Code Crim.P. art. 489. No amendment of the bill of particulars was ordered in the instant case. However, failure to do so does not constitute reversible error in the absence of prejudice to defendant. State v. Champagne, 251 La. 849, 206 So.2d 518 (1968).

Defendant’s motion for a mistrial is governed by La.Code Crim.P. art. 775, which states in pertinent part:

Upon motion of a defendant, a mistrial shall be ordered, and in a jury case the jury dismissed, when prejudicial conduct in or outside the courtroom makes it impossible for the defendant to obtain a fair trial, or when authorized by Article 770 or 771.

Mistrial is a drastic remedy and, except in instances in which the mistrial is mandatory, is warranted only when a trial error results in substantial prejudice to the defendant, depriving him of a reasonable expectation of a fair trial. State v. Overton, 337 So.2d 1058 (La.1976); State v. Redfud, 325 So.2d 595 (La.1976). This court will not set aside a conviction in a criminal case on the ground of improper admission of evidence unless, in the opinion of the court, after an examination of the entire record, it appears that the error complained of has prejudiced defendant. La.Code Crim.P. art. 921; State v. Champagne, supra.

In the instant case, defendant contends that, had he known that evidence of an accomplice would be presented, he would have subpoenaed as witnesses those persons defendant was with prior to the time of the alleged burglary and who were stopped by defendant and drove him to the hospital thereafter. Defendant asserts that he could have shown that he did not go to the hospital in a green Ford.

First, we consider that the state’s answer was a reasonable response to defendant’s request. It identified the only person (defendant) whose name was known to it as having participated in the offense charged. Defendant does not even contend that the name of the driver of the green Ford was known to the state. Clearly, there was no attempt on the part of the state to mislead defendant. Secondly, we do not feel that defendant was prejudiced by the reference at trial to a possible accomplice. Even had defendant subpoenaed the persons he was with prior to the time of the alleged burglary, their testimony would not have contradicted Mr. Daigre’s testimony concerning the burglary itself. Moreover, testimony of those persons who drove defendant to the hospital that he was not taken in a green Ford would not have been in conflict with the testimony of Mr. Daigre. He testified that the green Ford drove away without defendant, who left the scene of the burglary on foot.

Having reviewed the record and found no prejudiced to defendant by the mention of a possible accomplice, we do not find that the trial judge erred in denying defendant’s motion for a mistrial.

Defendant’s contention that the trial judge erred in not granting his motion for a continuance is equally without merit. Defendant is entitled to a “continuance for a reasonable time” only if the court determines that defendant has been “prejudiced in his defense upon the merits” based on all the circumstances of the case and the entire course of the prosecution. La.Code Crim.P. art. 489; State v. Hubbard, 279 So.2d 177 (La.1973). Having found no prejudice in his defense on the merits, we do not find that the trial judge erred in denying defendant’s motion for a continuance.

Assignments of Error Nos. 2 and 3 are without merit.

ASSIGNMENT OF ERROR NO. 4

Defendant contends the trial court erred in admitting in evidence photographs of defendant’s residence and truck on the ground that they were irrelevant.

During its case-in-chief, the state offered in evidence two photographs depicting defendant’s residence and his truck. The hood of the truck was up and the motor was outside the truck on the ground. Defendant objected on the ground of irrelevancy. The state argued the pictures were relevant to show motive for the theft of the chain hoist. The trial judge sustained defendant’s objection. Defendant testified on his own behalf. On direct examination, he stated that he was a mechanic and had access to his father’s chain hoist, although he did not own one himself. On cross-examination, defendant was shown the photographs at issue and questioned about his truck and need for a chain hoist to remove and replace motors. Defendant objected to the subject of the inquiry, but the trial court overruled the objection, finding that defendant had “opened the door” on direct examination. On rebuttal, the state successfully offered the photographs in evidence over defendant’s objection.

La.R.S. 15:441 provides:

Relevant evidence is that tending to show the commission of the offense and the intent, or tending to negative the commission of the offense and the intent.
Facts necessary to be known to explain a relevant fact, or which support an inference raised by such fact, are admissible.

This court has consistently held that the trial judge is vested with wide discretion in determining the relevancy of evidence, and his ruling will not be disturbed on appeal in the absence of a clear showing of abuse of discretion. State v. George, 346 So.2d 694 (La.1977); State v. Owens, 301 So.2d 591 (La.1974); State v. Ackal, 290 So.2d 882 (La.1974).

In the instant case, defendant himself initiated the subject of his occupation as a mechanic and his need for a chain hoist. The photographs of his truck with the motor removed related to this same line of inquiry. The photographs were necessary to explain a relevant fact, i. e., that defendant had need of a chain hoist, and supported an inference raised by such fact, i. e., that he had a motive to steal a chain hoist. Hence, the trial court did not err in admitting the photographs in evidence.

Assignment of Error No. 4 is without merit.

DECREE

For the reasons assigned, the conviction and sentence are affirmed.

      . Defendant has neither briefed nor argued Assignments of Error Nos. 5, 6 and 7. Therefore, we consider these assignments of error to have been abandoned. State v. Blanton, 325 So.2d 586 (La.1976); State v. Carlisle, 315 So.2d 675 (La. 1975).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    STATE of Louisiana v. Wilfred YOUNG.
    No. 60101.
    Supreme Court of Louisiana.
    Dec. 19, 1977.
    John G. Gomila, Jr., Jones, Walker, Wae-chter, Poitevent, Carrere & Denegre, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise Korns, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

The defendant, Wilfred Young, was jointly tried with Aaron Lee for the armed robbery of Delwood Rodi on November 15, 1974. Lee timely appealed, and his conviction was affirmed. See State v. Lee, La., 340 So.2d 1339 (1976). We granted the present defendant an out-of-time appeal. State ex rel. Young v. Maggio, La., 338 So.2d 287 (1976). The three assignments of error relied on by the present defendant were rejected in the prior appeal of the co-defendant, State v. Lee, supra.

The conviction and sentence are affirmed.

DENNIS, J., concurs.


author: SANDERS, Chief Justice.

text:
    STATE of Louisiana v. Willie VOLSON.
    No. 60103.
    Supreme Court of Louisiana.
    Dec. 19, 1977.

      Jack L. Simms, Jr., Simms & Gold, Lees-ville, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., William C. Pe-gues, III, Dist. Atty., William E. Tilley, First Asst. Dist. Atty., for plaintiff-appel-lee.
   SANDERS, Chief Justice.

The Grand Jury for the Parish of Vernon indicted Willie Volson for aggravated rape, a violation of LSA-R.S. 14:42. After a jury trial, defendant was found guilty as charged and sentenced to death. On appeal, defendant relies upon two assignments of error for reversal of his conviction and sentence.

ASSIGNMENT OF ERROR NO. 2

Defendant alleges that the lower court erred in refusing to appoint a sanity commission to determine his mental status after the court allowed defendant to withdraw his plea of “not guilty” and enter a plea of “not guilty and not guilty by reason of insanity.”

On May 13, 1976, defense counsel filed a Motion for Continuance, alleging that he had been appointed after defendant’s former counsel had been relieved; that he had no notice of the trial date; and that he needed additional time in which to prepare the defense. The written motion was denied on May 17, 1977, the date trial had been scheduled. However, the trial was refixed for May 24, 1976.

On May 24, 1976, the day of trial, the defendant orally moved to change his plea of “not guilty” to “not guilty and not guilty by reason of insanity,” for the appointment of a sanity commission, and for a continuance. The court allowed the change of plea, but denied the request for appointment of a sanity commission and for a continuance. In his request, defendant simply alleged that he wished to have a sanity commission appointed to determine if defendant was presently sane, based on his plea of not guilty and not guilty by reason of insanity. The court informed defense counsel that he would not delay trial, but that he could call a physician to examine the defendant if he wished to do so.

We find no merit in defendant’s contention that the trial court erred in denying his motion for the appointment of a sanity commission. The appointment of a sanity commission to inquire into the mental condition of the accused is addressed to the sound discretion of the trial judge. His ruling will not be disturbed on appeal absent a clear showing of an abuse of discretion. State v. Nix, La., 327 So.2d 301 (1975). The trial court is required to order a mental examination of the defendant only when it has reasonable ground to doubt the defendant’s mental capacity to proceed. LSA-C.Cr.P. art. 643; State v. Keys, La., 346 So.2d 169 (1977); State v. Nix, supra. In the present case, the defense motion was unsupported. Hence, the trial judge did not abuse his discretion in overruling it.

Assignment of Error No. 2 is without merit.

ASSIGNMENT OF ERROR NO. 3

Defendant alleges that the lower court erred in allowing the State to challenge for cause approximately ten prospective jurors because of their objections to capital punishment.

The State, during voir dire, challenged various prospective jurors for cause due to their objection to the death penalty. LSA-C.Cr.P. art. 798. Defendant objects to these challenges, arguing that, even if he is insulated from the death penalty, the granting of the challenges for cause denied him a fair trial. We have found this argument to be without merit when the challenges for cause are properly granted by the court. State v. Ross, La., 343 So.2d 722 (1977).

We have carefully examined the record of the voir dire and are completely satisfied that the jurors were properly excused for cause in compliance with Louisiana Code of Criminal Procedure Article 798. The responses made by the prospective jurors clearly show that, regardless of the evidence presented, they would not concur in a verdict of “guilty of aggravated rape” because of their refusal to apply the death penalty required by the statute.

Assignment of Error No. 3 is without merit.

In compliance with the decision in Selman v. Louisiana, 428 U.S. 906, 96 S.Ct. 3214, 49 L.Ed.2d 1212 (1976), we are compelled to vacate the death sentence here imposed and remand the case to the lower court for resentencing of the defendant to the most serious penalty for the next lesser included offense at the time of the commission of the crime. State v. Craig, La., 340 So.2d 191 (1976); State v. Lee, La., 340 So.2d 180 (1976).

For the reasons assigned, the conviction is affirmed; however, the sentence is vacated and the case remanded for resentencing in accordance with law and the views herein expressed.

DIXON, J., concurs.


author: TATE, Justice.

text:
    STATE of Louisiana, Appellee, v. Isaac WILLIAMS, Jr., Appellant.
    No. 60149.
    Supreme Court of Louisiana.
    Dec. 19, 1977.

      Paul A. Bonin, New Orleans, for appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Vincent Paciera, Jr., Asst. Dist. Atty., for appellee.
   TATE, Justice.

The defendant was charged and convicted of two counts of distribution of heroin, La. R.S. 40:966, and sentenced to concurrent life sentences at hard labor. On his appeal, we find merit to his Assignment of Error No. 2. We therefore reverse.

The defendant was convicted of distributions (sales) occurring on November 1 and November 2. By Assignment 2, the defendant correctly contends that over his objection the trial court improperly admitted irrelevant and prejudicial evidence of two other offenses of November 8 and 13.

These extraneous offenses were admitted on the state’s contention that they were admissible to prove intent, guilty knowledge, or system. La.R.S. 15:445, 446. However, reversible error resulted from the prejudice occasioned by evidence of them, since the offenses were not admissible for any of the purposes sought:

(1) The distribution offense is a crime requiring only general criminal intent. Such intent is established by mere proof of voluntary distribution. La.R.S. 40:966. The extraneous crimes were inadmissible to prove intent. State v. Clark, 338 So.2d 690 (La.1976).

(2) No defense is raised that the act was done without knowledge of the illegality of the substance. Therefore, “guilty knowledge” is not a genuine matter at issue in this prosecution, and the prejudicial evidence of the extraneous offenses was inadmissible for such purpose. State v. Frederick, 340 So.2d 1353 (La.1976).

(3) The extraneous offenses were not admissible to prove system: In the first place, even if proof of system was relevant to any issue in the present prosecution, these only-somewhat similar other drug offenses were not so peculiarly distinctive as to indicate they were the work of the same person. State v. Frederick, 340 So.2d 1353 (La. 1976); State v. Lee, 340 So.2d 1339 (La. 1976). More important, however, they were inadmissible because system was not relevant to prove any fact of consequence (e. g., identity) to the accused’s present innocence or guilt (i. e., independent of the inadmissible purpose to infer that the accused committed the present crimes because he had committed the other ones). State v. Jackson, 352 So.2d 195 (La.1977) and many decisions therein cited.

Accordingly, we reverse the convictions and sentences, and we remand for new triads) in accordance with law.

REVERSED AND REMANDED.

SANDERS, C. J., and SUMMERS and MARCUS, JJ., dissent.


text:
    STATE of Louisiana v. John A. MACKIE.
    No. 60202.
    Supreme Court of Louisiana.
    Dec. 19, 1977.
    Thomas J. Ford, Jr., Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise Korns, Asst. Dist. Atty., for plaintiff-appellee.
   SANDERS, Chief Justice.

The State charged defendant, John A. Mackie, with distribution of heroin, a violation of LSA-R.S. 40:966. After a trial, the jury found defendant guilty as charged. The court sentenced defendant to life imprisonment. Defendant appeals his conviction and sentence, relying upon two assignments of error.

The record discloses that on September 17, 1975, in the presence of Calvin Briggs, defendant sold 25 “papers” of heroin for $200 to Agent Henry Braud, Jr., of the Drug Enforcement Agency.

ASSIGNMENT OF ERROR NO. 1

In Assignment of Error No. 1, defendant complains that the trial court erred in not allowing him to proceed to trial with the attorney of his choice. Defendant contends that he was prejudiced when the trial court refused to grant a continuance when his retained counsel did not appear on the day of trial due to illness.

At defendant’s March 4, 1976 arraignment, he was represented by court appointed counsel. Thomas Ford, a public defender. Later, the court fixed a hearing for March 8 to determine legal representation. The hearing was continued until March 11. On that date, the hearing was continued again to allow defendant more time to retain counsel. The matter came on for hearing again on March 15. On that date, the retained counsel, George Fust, failed to appear. Instead, he transmitted a message that he represented the defendant but that his involvement in another case prevented his appearance. The matter was continued for one day. On March 16, Attorney Fust was enrolled as counsel. The trial was set for April 19.

On April 19, on a defense motion, the trial was continued to May 10 to allow the defendant to file motions.

On May 10, the trial was continued because that date was a legal holiday. Later the trial was refixed for May 21.

On May 21, the trial was continued to June 4, because of the illness of defense counsel and because the State’s narcotic evidence was unavailable. On that date, the court appointed Attorney Ford to assist defendant and set a second attorney status hearing on May 24.

At the attorney status hearing, Attorney Fust did not appear, but the minutes recite that the trial judge conferred with him by telephone. The trial date of June 4 was confirmed. Later, however, it was rescheduled for June 7 by agreement of the State and defense.

On June 7, 1976, the minutes recite that the trial was continued to June 10, because the narcotic evidence was still at the laboratory.

On June 10, Defense Attorney Fust failed to appear because of an injury. Attorney Ford appeared with the defendant. Because of the absence of Attorney Fust, the court continued the case until June 18. In continuing the case, the court appointed Attorney Ford to represent the defendant at the trial in the event Attorney Fust did not appear. The court granted Attorney Ford to June 14 to file any additional motions. The following colloquy took place:

“BY THE COURT: All right. Mr. Mack-ie, it is my understanding that your attorney has some broken ribs, and he cannot appear this morning. I have had several problems in having you and your attorney ready for trial. Not all of the problems have been your fault or your attorney’s. Some of them have been the DEA not having the evidence here, and a number of times your case has been continued. Due to the fact that Mr. Fust is in ill health, the court is appointing you an attorney, Mr. Ford. We plan to go to trial with you and with Mr. Ford and Mr. Fust. And, if Mr. Fust does not show up on the next event, you are going to trial with Mr. Ford, an appointed attorney.
Do you have money to hire another attorney, sir?
“BY JOHN MACKIE: Yeah. I think my father can get money.
“BY THE COURT: Is your father here in court?
“BY JOHN MACKIE: He was. He went downstairs.
“BY THE COURT: All right. We will give you a phone call slip to do whatever you want to do. The court is appointing Mr. Ford to represent you, and we are going to have a trial set on what day?
“BY MR. MEISSNER: June 18th, Your Honor, next Friday.
“BY THE COURT: June 18th, and it will go to trial that day.
“BY MR. FORD: Your Honor, I ask that I have until Monday to file special pleadings. There are some things that I would like to file in this matter. We can hear them before the trial with no problem.
“BY THE COURT: Mr. Ford, I had appointed you to assist Mr. Fust on the 21st of May, so now I am going to appoint you and I am letting the defendant know that if his attorney is not present in court that you are going to be going to trial with him.” [Emphasis added.]

On June 18, Attorney Fust again did not appear because of illness. The following colloquy occurred:

“BY MR. FORD: At this time, Your Honor, out of an over abundance of caution, I move that George Fust be retained on the case, and that I be removed. Okay. It’s because of the statements made by the defendant. He does have the right to the lawyer of his own choosing.
One more question before I make my motion.
Has your father retained George Fust as counsel for this matter too?
“BY JOHN MACKIE: Yes.
“BY MR. FORD: Okay. Fine. I’d like to complete my motion now. He does have a right to counsel of his own choosing. He did choose Mr. Fust, and he has paid Mr. Fust, and he does have a right to have him as his representative attorney.
“BY THE COURT: All right. Mr. Mack-ie, do you understand that Mr. Fust is presently in the hospital?
“BY MR. MACKIE: Yes.
“BY THE COURT: You. understand that? Do you also understand that— well this court — I’m not commenting to you, sir, but I am commenting for the record.
“BY MR. FORD: Yes, sir.
“BY THE COURT: That the court feels that I have an obligation to see to it that defendants get a fair trial. And to see to it that they are adequately defended. I feel that Mr. Fust’s present condition, and the conditions that he has had for the last few instances in this court were that he at this present time is not in a position to adequately defend Mr. Mackie. For that reason, the court is taking it upon itself to appoint someone to assist Mr. Fust, and if Mr. Fust did not adequately defend Mr. Mackie that he would take over the defense of Mr. Mackie’s case.”

Louisiana Code of Criminal Procedure Article 712 provides that the granting of a continuance is within the sound discretion of the trial judge. We have consistently recognized the trial judge’s wide discretion. State v. Winston, La., 327 So.2d 380 (1976); State v. Garruth, La., 311 So.2d 866 (1975); State v. Brewer, La., 301 So.2d 630 (1974); State v. Williams, 262 La. 317, 263 So.2d 306 (1972).

Whether a refusal to grant a continuance is justified depends upon the circumstances of the individual case. In the instant case, defendant contends that he was denied his constitutional right to the assistance of counsel of his choice. Sixth Amendment, U.S.Const.; Art. 1, § 13, La.Const. (1974).

In Ungar v. Sarafite, 376 U.S. 575, 84 S.Ct. 841, 11 L.Ed.2d 921 (1964), involving the right to counsel, the United States Supreme Court stated:

“The matter of continuance is traditionally within the discretion of the trial judge, and it is not every denial of a request for more time that violates due process even if the party fails to offer evidence or is compelled to defend without counsel. Avery v. Alabama, 308 U.S. 444, 60 S.Ct. 321, 84 L.Ed. 377. Contrariwise, a myopic insistence upon expeditiousness in the face of a justifiable request for delay can render the right to defend with counsel an empty formality. Chandler v. Fretag, 348 U.S. 3, 75 S.Ct. 1, 99 L.Ed. 4. There are no mechanical tests for deciding when a denial of a continuance is so arbitrary as to violate due process. The answer must be found in the circumstances present in every case, particularly in the reasons presented to the trial judge at the time the request is denied.”

In United States ex rel. Carey v. Rundle, 409 F.2d 1210 (3rd Cir. 1969), the Court of Appeals stated:

“Desirable as it is that a defendant obtain private counsel of his own choice, that goal must be weighed and balanced against an equally desirable public need for the efficient and effective administration of criminal justice. The calendar control of modern criminal court dockets, especially in metropolitan communities, is a sophisticated operation constantly buffeted by conflicting forces. The accused’s rights—such as those relating to a speedy trial, to an adequate opportunity to prepare the defense, and to confront witnesses—are constantly in potential or real conflict with the prosecution’s legitimate demands for some stability in the scheduling of cases. The availability of prosecution witnesses is often critically dependent on the predictability of the trial list. That delays and postponements only increase the reluctance of witnesses to appear in court, especially in criminal matters, is a phenomenon which scarcely needs elucidation.”

This Court has often upheld the trial court’s denial of a continuance on the date of trial based on the illness of a defense attorney when the defendant is represented by other competent counsel. State v. Cloud, 130 La. 955, 58 So. 827 (1912); State v. Golden, 113 La. 791, 37 So. 757 (1905); State v. Murray, 111 La. 688, 35 So. 814 (1904).

Similarly, in State v. Sinclair, 258 La. 84, 245 So.2d 365, vacated on other grounds at 408 U.S. 939, 92 S.Ct. 2871, 33 L.Ed.2d 760 (1972), we upheld a denial of a continuance presented on the date of trial when a death in a defense counsel’s family caused his absence. We ruled that where defendant’s other court appointed attorney was present, the trial court properly denied the continuance.

On the date of trial, June 18, Thomas Ford moved that he be allowed to withdraw from the case since defendant indicated that he preferred that Mr. Fust represent him. The trial court denied the motion.

While defendant does have an unquestioned right to counsel of his choice to defend him in a criminal case, we have consistently interpreted this right as one which cannot be manipulated to obstruct the orderly procedure in our courts and which cannot be used to thwart the fair administration of justice. State v. Anthony, La., 347 So.2d 483 (1977); State v. Frezal, La., 278 So.2d 64 (1973); State v. Austin, 258 La. 273, 246 So.2d 12 (1971). The jurisprudence elsewhere is consistent. See Maynard v. Meachum, 545 F.2d 273 (1st Cir. 1976); United States v. Vallejo, 496 F.2d 960 (1st Cir. 1974); Johnson v. State, 139 Ga.App. 829, 229 S.E.2d 772 (1976); State v. Carll, 161 Me. 210, 210 A.2d 680 (1965); People v. Willis, 6 Ill.App.3d 980, 286 N.E.2d 72 (1972).

The law is equally well settled that a defendant cannot, by a last minute change of counsel, force a postponement of his trial. State v. Anthony, supra; State v. Alexander, La., 334 So.2d 388 (1976); State v. Stafford, 258 La. 523, 246 So.2d 849 (1971). A denial of a motion for a continuance made on the day of trial on grounds that the defendant is dissatisfied with his attorney has been held to be proper. State v. Austin, supra.

Court appointed counsel, Thomas Ford, represented defendant at his arraignment in March, 1976. After serious problems developed in getting the case to trial, he was again appointed to assist defendant on May 21, 1976. On June 4, 1976, the court notified him of the need to prepare for trial in the event of the absence of the other attorney.

The defendant makes no contention that he was ineffectively represented. He contends only that he preferred to be represented by the same counsel that represented him in the federal court on a charge for the same offense. The record reflects that the federal case was disposed of on a plea of guilty without trial. In view of the repeated continuances and other circumstances shown here, the trial judge did not abuse his discretion in requiring the case to go to trial after ample notice.

We conclude that the assignment of error is without merit.

ASSIGNMENT OF ERROR NO. 2

In this assignment, defendant contends that the trial court erred in denying his request for the date, time, place, by whom, and from whom the heroin was obtained.

In State v. Nance, La., 315 So.2d 695 (1975), we described the function of the bill of particulars as follows:

“The purpose of the bill of particulars is to more fully inform the defendant of the nature and cause of the charge against him and to provide him with sufficient information before trial to properly prepare his defense. It cannot be used, however, to secure a pre-trial disclosure of the details of the State’s evidence. State v. Rose, La., 271 So.2d 863 (1973).”

See also LSA-C.Cr.P. Art. 484, Official Revision Comment; State v. Perkins, La., 337 So.2d 1145 (1976); State v. Major, La., 318 So.2d 19 (1975); State v. Nelson, La., 306 So.2d 745 (1975).

The indictment charged that defendant distributed heroin in the Parish of Orleans on September 17, 1975. It adequately informs defendant of the nature of the charge against him to enable defendant to prepare his defense. We have held that a defendant is not entitled to the names of the State’s witnesses or to the place of the offense. State v. Jones, La., 332 So.2d 267 (1976); State v. Hamilton, La., 307 So.2d 329 (1975). Therefore, the trial court judge properly denied the details sought in defendant’s requests.

Assignment of Error No. 2 is without merit.

For the reasons assigned, the conviction and sentence are affirmed.

      . Although the record does not reflect that defendant presented a motion for continuance on the date of his trial, June 18, 1976, we will, nonetheless, consider the issue upon which the alleged continuance motion was based: defendant’s right to counsel of his choice. We note that defense counsel effectively raised this issue prior to trial in moving “that George Fust be retained on the case, and that I be removed.”


author: BOUTALL, Judge.

text:
    Judy Belle V. Millet, wife of Lester J. MILLET, Jr. v. Lloyd B. JOHNSON, Ind./and as Sheriff of St. John the Baptist Parish, et al.
    No. 9151.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 23, 1977.

      Law Offices of Louis R. Koerner, Jr., by Louis R. Koerner, Jr., New Orleans, for plaintiff-appellee.
    Carville & Edrington, Richard L. Edring-ton, Laplace, for mover.
    Robert Faucheux, Jr., Reserve, for Brent Tregre, Robert Becnel and Police Jury.
   ON MOTION TO DISMISS

Before BOUT ALL, SCHOTT and BEER, JJ.

BOUTALL, Judge.

Appellee, Judy Belle Millet filed a motion to dismiss the appeal of Lloyd B. Johnson on the grounds that the judgment appealed from is an interlocutory judgment and that no appeal lies from such a judgment.

The judgment appealed from was rendered in a defamation suit brought by Mrs. Millet against Lloyd B. Johnson, individually and in his capacity as Sheriff of the Parish of St. John the Baptist, The River-lands Publishing Company, Inc., and others. Johnson and Riverlands filed exceptions of no right or cause of action and Johnson additionally filed a motion to strike plaintiff’s request for trial by jury. The trial court rendered one judgment on these three pleadings in which it (1) maintained the exception of Riverlands and dismissed it from the suit; (2) overruled and dismissed the exceptions of no cause of action by Johnson; and (3) ordered a bifurcated trial by jury against Johnson individually and by judge against him as Sheriff of the Parish.

The motion to dismiss is filed on two grounds: 1.) that there is no appeal from denial of an exception of no cause or right of action; and 2.) that there is no appeal from dismissal of a motion to strike an order of jury trial. LSA-C.C.P. Article 2083 provides that an appeal may be taken from a final judgment or from an interlocutory judgment which may cause irreparable injury. The judgment appealed by Johnson as to Millet does not fit the definition of a final judgment under LSA-C.C.P. Article 1841, and the only question before us is whether it meets the test of irreparable injury as an interlocutory judgment. The appellant has made no response to the motion to dismiss, nor is there any showing in the record which would show irreparable injury. It is too certain to require comment that a judgment which dismisses a peremptory exception of no right or cause of action is an interlocutory judgment and unappealable. Mauterer v. Tillery, 328 So.2d 755 (La.App.1976).

In response to the second ground of the motion to dismiss, that is, the denial of motion to strike jury trial, we do not believe that the appeal encompassed this issue. The appeal seemed to be taken and granted only as to the dismissal of exceptions. In his petition of appeal, Johnson appealed “suspensively from the judgment on exceptions rendered on the above captioned cause . . . ” and the court granted “a suspensive appeal from the judgment rendered on the exceptions on the above entitled and numbered cause.” Lacking a response from appellant, the only other information we find in the record is the appeal bond which contains the following preamble:

“Whereas judgment has been rendered on the exceptions in the above 29th Judicial District Court for the Parish of St. John the Baptist, in the above entitled and numbered cause in favor of petitioners and against defendants, dismissing defendants’ exceptions and that the said defendant has this day obtained an order of suepensive appeal therein, conditioned upon the furnishing of this obligation.”

In any event, the order granted by the trial judge seems to be in accordance with the principles of jury trials in accordance with the cases of Jones v. City of Kenner, 338 So.2d 606 (La.1976) and Champagne v. American Southern Insurance Company, 295 So.2d 437 (La.1974). We do not find any irreparable injury shown by the issuance of the trial court’s judgment, and we would dismiss the appeal on that ground also. Bunkie Bank & Trust Company v. Avoyelles Parish Police Jury, 347 So.2d 1305 (La.App.1977); Triche v. City of Houma, 342 So.2d 1155 (La.App.1977); First National Bank of Commerce, New Orleans v. Miller, 328 So.2d 383 (La.App.1976).

In accordance with the foregoing reasons, we conclude that the judgment appealed from by Lloyd D. Johnson in favor of Judy Belle Millet, appellee, is an interlocutory judgment and since there is no showing of irreparable injury, the motion of appellee is granted, and the appeal of Lloyd B. Johnson is dismissed at his cost.

MOTION TO DISMISS GRANTED.


text:
    LAMANA-PANNO-FALLO, INC. v. Bernhardt C. HEEBE, Executor of the Succession of Marie Webre, widow of Edwin B. Norris.
    No. 9036.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 29, 1977.
    Reuter & Reuter, Arthur C. Reuter, New Orleans, for Lamana-Panno-Fallo, Inc., plaintiff-appellant.
    Odom B. Heebe, Curtis, Foster, Hyde & Mooney, Gordon B. Hyde, New Orleans, for defendant-appellee.
    Before REDMANN, LEMMON and BOUTALL, JJ.
   BOUTALL, Judge.

This is a declaratory judgment suit by plaintiff Lamana-Panno-Fallo, Inc. against its lessor seeking to obtain a judicial determination of the validity and enforceability of certain usage restrictions in lessor's chain of title. The trial court declared the restrictions invalid and unenforceable, and defendant appeals.

Plaintiff and defendant, Bernhardt C. Heebe, as Executor of the Succession of Marie Webre, widow of Edwin B. Norris, entered into a commercial lease of 9 lots of ground, being lots 1A, 2A, 3A, 4A-A, 4B-A, 5A-A, 5B-A, 6A-A and 6B-A, of Sq. 50, Bonnabel Place Subdivison, fronting on Veterans Memorial Highway (formerly Canal Street) and measuring 312 feet from the corner of Bonnabel Blvd. to the corner of Orion Ave. The lease is for commercial purposes in order to permit the plaintiff to construct and operate a funeral home or mortuary on the premises, a permitted use of its C-2 Commercial classification under the Comprehensive Zoning Ordinance for the Parish of Jefferson, Ordinance # 3813, as amended. The problem arising in this case is that the lots have been burdened with the following restrictive covenant which would prohibit is commercial use imposed under the Zoning Laws:

“The property shall always be used for residence purposes only, and no commercial business shall be conducted or operated upon the premises.”

Thus, if the restrictions in lessor’s title prevail, the commercial use forming the basis of the lease will be prohibited, yet at the same time, if the zoning law is to be enforced, only incidental residential use may be achieved. Thus the cumulative effect of the prohibited uses under the law and the title restrictions is to effectively deprive the owner and the lessee of nearly all use of the property. Since commercial use of the property is the basis of the lease between the parties, a justiciable controversy is presented to the court for consideration under the declaratory judgment law.

The trial court has resolved this controversy by declaring that based on the facts in this case, the title restrictions prohibiting commercial or business uses are no longer valid or enforceable as regards this property and that commercial construction and use thereon is no longer prohibited. We agree.

The restrictive covenants in the title did not come into being as one overall or general plan of restrictions imposed upon the entire subdivision, but instead, restrictive stipulations were inserted in the initial title deeds from the owner and developer, Bon-nabel Land Company, Inc., to purchasers of lots in Bonnabel Place. At the time that the subdivision was created, some 60 years ago, Bonnabel Place was a long narrow tract extending through undeveloped land and was bi-sected in the approximate middle by a wide drainage canal with a street running alongside named Canal Street. As the entire area developed, the drainage canal and Canal Street became Veterans Memorial Highway, presently one of the three most heavily congested major East/West traffic arteries in Jefferson Parish, extending from the Orleans Parish line to the St. Charles Parish line. With the construction of this major thoroughfare, the nature of the land use in the area changed, and that portion of Bonnabel Place fronting on both sides of Veterans Memorial Highway is presently substantially and almost totally developed and built up as commercial properties and used for commercial purposes. The trial judge found the following facts:

“There are 72 lots in Squares 40 through 53, inclusive, each measuring 52 feet front on Veterans Memorial Highway. Portions of certain lots (in Squares 46 and 47) equivalent to approximately two lots are owned by the Parish of Jefferson, having been acquired for drainage canal and widening of the highway at the western boundary of the subdivision.
“The present composition and use of the 70 pertinent privately owned lots in Bonnabel Place are:
a) One (1) lot (Lot 19 of Square 43) is improved and used as a small single residence (it would appear that even this lot may be in violation of the residential restrictions prohibiting business uses as there is a “Plants for Sale” sign in the front yard).
b) Fifty-nine (59) of the lots are improved with commercial structures (or used) for a wide variety of business and commercial purposes all in obvious violation of the residential restrictions.
c) Four (4) other lots are unimproved, their use status is unknown, but they also appear to be in violation of the residential restrictions in that they appear to be used for off-street parking of vehicles of contiguous commercial properties; and
d) Defendant’s six lots (Nos. 1-6, inclusive, Square 50) are vacant and unimproved and not used for any purpose.
“Thus, with the possible exception of only one lot out of the 70 (i. e., comprising the pertinent area or neighborhood consisting of all lots fronting both sides of Veterans Memorial Highway) 59 have been, and presently are, improved or used in clear and obvious violation of the residential restrictions through a wide variety of commercial and business uses. Exemplary of existing commercial and business uses are the following: bars; cocktail lounges; Greek, American and Chinese restaurants; gasoline service stations; office buildings; merchandise and service buildings and stores; automobile repair shop; grocery; meat market; seafood market; convenience food store; beauty and hair shops; professional offices for doctors, lawyers and dentists; banks; savings and loan association; finance company, sporting goods; boat sales and repair; music store, house furnishings; animal clinic; fast-food franchise stores; etc., etc.”

It is apparent from the above that the most desirable and most conformable land use to which this property can be put is the commercial use contemplated by the zoning laws, and not the residential use as required in the title restrictions. Indeed, the trial judge found that the Director of Planning and Zoning for the Parish of Jefferson had evidenced that use and occupancy permits for any type of residential construction or use to any property in a C-2 Commercial District would be refused unless the same accompanies and is in conjunction with a stipulated commercial use. Based upon these facts we support the trial judge’s conclusion that the title restrictions are abandoned and are no longer valid or enforceable in regard to this property.

First we note that the facts show the restrictions in question not to have been in pursuance of a general subdivision plan but to have been inserted into a number of individual titles as lots were sold. In such a situation, it has been held that such restrictions, enforceable only by the vendor and not by owners'of other titles which may contain the same type of restriction. Murphy v. Marino, 60 So.2d 128 (La.App. 1st Cir. 1952); In Re Congregation of St. Rita Roman Catholic Church, 130 So.2d 425 (La. App. 4th Cir. 1961). The vendor-developer, Bonnabel Land Company, Inc. no longer exists, having been dissolved as of October 29, 1965, and obviously cannot sue to enforce the restrictions, or be made a party to this proceeding.

But we do not base our judgment essentially' on that proposition. The facts in this case show abandonment of this restrictive use. Our jurisprudence recognizes that one or more particular restrictions or title stipulations may be invalidated or rendered unenforceable by reason of abandonment or waiver of that particular restriction, notwithstanding that there has not been a general abandonment of all restrictions. Similarly restrictions may be rendered invalid and enforceable in relation to a particular geographical area or neighborhood by reason of substantial violation or abandonment in that particular geographical area notwithstanding that there has not been a general or universal abandonment throughout the entire subdivision.

The leading case is Edwards v. Wiseman, 198 La. 382, 3 So.2d 661 (La.1941) wherein the violation of restrictions of facing the original street by 23 out of 28 corner lots (in a subdivision aggregating 744 lots altogether) was held to constitute an abandonment of the original scheme as to restrictions stipulating as to the facing of residences on those streets. The violations had been so general or substantial without protest so as to defeat the purpose of the original restrictions. The court held that the facts in each case are controlling and that in such an instance the particular building restrictions pertaining to corner lots had been relinquished or waived as to those lots on the one street only, and did not affect other restrictions or other areas of the subdivision.

Similarly we refer to the case of Munson v. Berdon, 51 So.2d 157 (1st Cir. 1951) which dealt with commercial usage. That case noted that of 29 lots facing on Government Street, 20 were improved, 14 of which had commercial buildings and one lot had a residence which was being uséd commercially. Of the remaining 9 unimproved lots facing Government Street, 5 had no title restrictions. It was found that Government Street was predominantly commercial and was then zoned commercial. Based on these facts the court concluded that there was a change in the character of the property fronting on Government Street subject to the restrictions and permitted use of the subject property for commercial purposes, stating that not to do so would improperly deprive the owner of the use of his property for uses that adjoining owners enjoyed.

Basing its decision on the Edwards v. Wiseman case, supra, our predecessor court in Finn v. Murphy, 72 So.2d 358 (Orl.App. 1954) held that where 9 of 16 corner lots in Mirabeau Gardens Subdivision violated restricted covenants relating to fences, the restrictions could not be enforced against defendant’s fence on his corner lot.

At the same time, we are not unmindful of the holding in the case of Alfortish v. Wagner, 200 La. 198, 7 So.2d 708 (1942) wherein a general plan of development was found and which stated as a general proposition that adoption by the governmental authority of an ordinance zoning a particular area to commercial uses would not nullify the general plan of development. We agree with that proposition as a general rule, however, in this case, the facts are such as to show a complete abandonment of the restriction against commercial usage of all of the lots in this subdivision fronting along Veterans Memorial Highway. We do not hold that the enactment of a zoning usage change is superior to that of restrictive covenants in the title to property. Our holding is based upon the abandonment of those restrictive covenants, and we hold that they are unenforceable as to this class of property.

Accordingly, we affirm the judgment of the trial court.

AFFIRMED.


text:
    Kenneth E. VIARS v. STATE of Mississippi.
    No. 49905.
    Supreme Court of Mississippi.
    Oct. 26, 1977.
    Rehearing Denied Jan. 11, 1978.
    Joseph Edward Guarino, Brooklyn, N. Y., for appellant.
    A. F. Summer, Atty. Gen. by Catherine W. Underwood, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Harrison County; Floyd J. Logan Judge.

Before SMITH, P. J., and BROOM and LEE, JJ.

AFFIRMED.

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


text:
    In the Matter of the ADOPTION OF Charles Thomas STEADMAN and Mary Virginia Steadman, Minors. James Webb STEADMAN v. Dean Price MEADOR and Rosemary Turner Meador.
    No. 49714.
    Supreme Court of Mississippi.
    Nov. 30, 1977.
    Rehearing Denied Jan 16, 1978.
    Gray, Montague, Jackson & Pittman, Frank D. Montague, Jr., Hattiesburg, John G.Corlew, Pascagoula, for appellant.
    Zachary & Gillespie, Frank T. Zachary, Hattiesburg, for appellee.
   Appeal from Chancery Court, Forrest County; Michael Sullivan, Chancellor.

Before INZER, P. J., WALKER and BROOM, JJ., and J. D. THAMES, Commissioner.

REVERSED AND RENDERED.

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


text:
    The NEW HAMPSHIRE INSURANCE COMPANY v. Mrs. W. T. ROBERTSON.
    No. 49765.
    Supreme Court of Mississippi.
    Dec. 14, 1977.

      Watkins & Eager, James L. Carroll, Jackson, for appellant.
    Clark, Davis & Belk, W. Dean Belk, Indi-anola, for appellee.
    Before SMITH, P. J„ LEE and BOWLING, JJ., and BROOME, Commissioner.
   RUFUS H. BROOME, Commissioner for the Court:

This case arises out of a suit to collect on a comprehensive dwelling insurance policy issued by New Hampshire Insurance Company in favor of Mrs. W. T. Robertson covering damage to her dwelling and contents.

The case was tried on a stipulation of facts without a jury in the Circuit Court of Sunflower County. The lower court rendered a judgment for the plaintiff, for $9,949.07, holding the loss was within the coverage of the policy and the insurance company, by its actions, had waived its right to object to Robertson’s failure to file a sworn proof of loss.

On or before April 9, 1975, Robertson noticed water bubbling up through a crack in the terrazzo floor of the den. Her home was built on a concrete slab foundation, and plumbing pipes were located beneath the slab. A plumber was called and found the water was from an underground leak caused by separation of a hot water line.

It was stipulated by the parties that the damage resulted from water pressure exerted upon the foundation or slab of the house and ultimately upon the floors and walls or from earth movement beneath the foundation of the house, or a combination, all of which was caused by the underground leak. The resultant damage in the amount of $9,999.07, consisted of settling and cracking of the patio, walls, floors and related damages.

The insurance policy is entitled “Comprehensive Dwelling Policy”. On page one the policy specifies that perils insured against under Coverage Group A are “fire and allied perils as set forth in forms and endorsements attached hereto.” Coverage Group A consists of a form insuring contents of the dwelling, and a form insuring the dwelling proper.

The next to last paragraph on page one provides: “. . . this company . does insure the named insured against all DIRECT LOSS BY FIRE, LIGHTNING AND OTHER PERILS ENUMERATED IN THE SCHEDULE . . . EXCEPT AS HEREIN PROVIDED . . .”

After the first page, the policy is divided into two separate sections, one for insuring the contents, and the other for insuring the dwelling. The contents insurance section is in the nature of a specific coverage form insuring only that for which coverage is specifically provided and then containing some exclusions, whereas the dwelling insurance form is an all-risk insurance. It does not specify any particular coverage but says all-risk and then goes on to list certain exclusions.

Under “II. Coverage” the policy specifies: “This company agrees to insure against all risks of direct physical loss except as hereinafter excluded, those classes of property specifically covered under Items 1 and 2 of Coverage Group A, subject to all other conditions, limitations and exclusions contained in this policy.” (Items 1 and 2 referred to are dwelling and outbuildings.)

In its pertinent parts, the dwelling portion contains these exclusions: “THIS COVERAGE GROUP DOES NOT INSURE AGAINST LOSS — (a) by wear and tear, deterioration, rust, mold, wet or dry rot, contamination, smog, smoke from agricultural smudging or industrial operations, mechanical breakdown; settling, cracking, shrinking, bulging or expansion of pavements, patios, foundations, walls, floors, roofs or ceilings; . (b) caused by, resulting from, contributed to or aggravated by earthquake, volcanic eruption, landslide, or any other earth movement; . (c) caused by, resulting from, contributed to or aggravated by any of the following (1) Flood, surface water waves, tidal water or tidal waves, overflow of streams, or other bodies of water ... (2) Water which backs up through sewers or drains; (3) Water below the surface of the ground, including that which exerts pressure on or flows, seeps or leaks through sidewalks, driveways, foundations, walls, basement or other floors, or through doors, windows or any other opening in such sidewalks, driveways, foundations, walls or floors . (h) to plumbing, heating or air conditioning systems or domestic appliances, or by leakage or overflow from such systems or appliance, caused by or resulting from freezing

The contents portion of the insurance policy provides under “II. Coverage”: “This company agrees to pay for direct loss to contents insured . . . caused by the following perils as defined and limited herein . . .” In its pertinent parts, under definitions and limitations regarding coverage is found the following:

“12. Water Damage: Loss by water damage shall mean damage to or destruction of the property covered herein caused by the accidental discharge, leakage or overflow of water or steam from within a plumbing . . . system ... including the cost of tearing out and replacing any part of the building covered required to effect repairs to the system or appliances from which the water or steam escaped. This company shall not be liable for (a) loss caused by or resulting from freezing . . . .”

In another section, the contents form contains an exclusion form identical to that in the dwelling form with regard to exclusion of loss caused by, resulting from, contributed to or aggravated by water below the surface of the ground.

As noted above, the part of the policy covering dwelling buildings excludes loss by settling and cracking of foundations, walls and floors. It also excludes loss caused by, resulting from, or contributed to by any other earth movement. Finally, it excludes a loss caused by water below the surface of the ground.

It is clear from the stipulated facts that the damage was caused by water below the surface. It is further clear that the damages resulted from earth movement under the foundation which caused the floors, walls and patio to settle and crack.

Based on a superficial reading of the exclusions, they appear to exclude the damage done. However, when read in context, several factors become significant.

(1) The provision excluding loss by settling and cracking of floors, walls, etc. appears in the context of a clause excluding loss by wear and tear, deterioration, rust, mold, wet or dry rot, contamination, smog, mechanical breakdown, etc. In this context, it would appear to exclude loss by settling and cracking due to ordinary swelling, expansion, settling or cracking as opposed to settling or cracking caused by some other external agent (here the water leak).

(2) The provision excluding loss by any other earth movement appears in the context of a clause dealing with earthquakes, volcanic eruption, and landslides. In this context, it would appear to be limited to “earth movement” resulting from natural forces (as opposed to earth movement resulting from the water leak).

(3) The provision excluding loss caused by, resulting from, contributed to, or aggravated by water below the surface of the ground appears in the context of a clause which also excludes (a) flood, surface water, waves, tidal water or tidal wave, overflow of streams, etc.; (b) water which backs up through sewers or drains. In this context it is arguable that the exclusion is either for natural water below the ground (as opposed to leakage from the plumbing system) or from subsurface water stemming from non-natural but exterior sources (as in water backed up from sewer drains or other exterior sources in the sense of not stemming from the dwelling itself).

This construction of the clause excluding either natural subsurface water only or subsurface water stemming from external sources is reinforced by two other clauses.

1. Paragraph H of the dwelling coverage excludes damages to plumbing or by leakage from a plumbing system, but is limited to that caused by freezing. It would appear to have been a simple matter to have excluded all leaks from plumbing if that had been the intent of the drafters of the policy.

2. Under the coverage of contents section of the contract, there is a below surface water exclusion, yet in the specific coverage provision of the contents portion it is provided that there is coverage of water damage. In that clause, “water damage” is defined as “damage to or destruction of the property covered hereby by . leakage . . . from within a plumbing . system, including the cost of tearing out and replacing any part of the building required to effect repairs to the system . .” (Emphasis added). It, like the dwelling portion of the policy, then goes on to exclude only loss by freezing.

In this portion of the policy, at least, if the subsurface water exclusion is interpreted to mean all subsurface water from any source or cause, an ambiguity results, since to do so would negate the specific coverage of water damage resulting from leakage within a plumbing system.

There appears to, be no Mississippi case considering the precise clauses and facts as occur here.

It is recognized in Mississippi, however, that

If an insurance contract is ambiguous and capable of two reasonable but different constructions, the construction will be adopted which is in favor of the insured since the contract is prepared by the insurer. Key Life Insurance Co. of South Carolina v. Tharp, 253 Miss. 774, 179 So.2d 555, 559 (1969).

We find from the analysis of facts and coverage clauses that an ambiguity resulted and we have consistently held that ambiguous language should be construed more strongly against the preparer of the contract.

Other state courts have considered virtually the same facts and clauses as involved here. Hartford Accident & Indemnity Co. v. Phelps, 294 So.2d 362 (Fla.App.1974); Koncilja v. Trinity Universal Ins. Co., 35 Colo.App. 27, 528 P.2d 939 (1974); King v. Traveler’s Ins. Co., 84 N.M. 550, 505 P.2d 1226 (1973); and Cantanucci v. Reliance Ins. Co., 43 A.D.2d 622, 349 N.Y.S. 187 (1973). All these have found the damage to be within the coverage of the policy. The only distinguishing factor was that each of these cases had a coverage clause specifically covering leakage from plumbing systems. (It is unclear from the cases whether this coverage was in the dwelling building section of the policy or in the contents section as here). The insurance company argues that this is sufficient to require a different result here. The fallacy with this reasoning is that the dwelling building policy is an “all risk” policy with no specific coverage listed, only exceptions. We, therefore, hold:

Where an all risk comprehensive dwelling policy excludes coverage of loss from water below the surface of the ground, but (1) construction in the context of adjoining clauses indicates exclusion is limited to natural below the surface waters or at the least to below surface waters stemming from exterior causes (in the sense of not stemming from the insured dwelling itself) and (2) construction of the clause as excluding damage caused by leakage from the plumbing system would negate a specific coverage in another section of the contract, then the policy must be construed as including loss caused by leaking from the plumbing system even though below the surface of the earth.

The appellant next argues that failure of the appellee to file a sworn proof of loss violates the terms of the policy and relieves it of all liability under the policy. Here, the insurance company was promptly notified of the loss on or about April 9, 1975. They were furnished copies of all bills and had access to the property. In addition, the insurance company failed to provide proof of loss forms and it was stipulated that the plaintiff had at all times been ready and willing to submit a sworn proof of loss form. Finally, the insurance company was allowed to and did conduct a full investigation with the cooperation of plaintiff.

These facts taken together with the insurance company’s failure to show they were actually prejudiced in any way by the failure to file sworn proof of loss forms, are sufficient to establish a waiver of the proof of loss requirement. Nelson v. Phoenix of Hartford Ins. Co., 318 So.2d 839 (Miss.1975); Soso Trucking Co., Inc. v. Central Ins. Agency, Inc., 236 So.2d 398 (Miss.1970); Newark Fire Ins. Co. v. McMullen, 142 Miss. 369, 107 So. 523 (1926).

While it is true the insured and insurer signed a non-waiver agreement, it is also clear from the facts that the signing of the non-waiver agreement preceded the denial of liability by the insurance company. Compare Taylor v. Fireman’s Fund Ins. Co., 306 So.2d 638 (Miss.1974) (where the denial of liability occurred before signing of the non-waiver agreement). Where as here, there was an effective waiver of proof of loss, no prejudice shown by the insurance company, and the non-waiver agreement was followed by a denial of liability on the grounds of lack of coverage, the signing of a non-waiver agreement under the facts of this case would not bar recovery. See Charles Store, Inc. v. Aetna Ins. Co., 428 F.2d 989 (5th Cir. 1970).

For the foregoing reasons, the judgment of the lower court is affirmed.

AFFIRMED.

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

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


author: IDOM, Commissioner for the Court:

text:
    Joyce B. McLEAN v. Kenneth GREEN, a minor, by his father and next friend, Semo Green and Lawrence Rollins, a minor, by his next friend, James H. Mazique.
    No. 49694.
    Supreme Court of Mississippi.
    Dec. 14, 1977.

      Wise, Carter, Child, Steen & Caraway, Jerome B. Steen, Charles T. Ozier, Jackson, for appellant.
    Zuccaro, Riley, Pintard & Brown, Walter Brown, Natchez, for appellee.
    Before PATTERSON, C. J., ROBERTSON and SUGG, JJ., and IDOM, Commissioner.
   IDOM, Commissioner for the Court:

This is a personal injury action brought in the Chancery Court of Adams County, Mississippi by Kenneth Green and Lawrence Rollins, both minors, against Mrs. Joyce B. McLean. Both complainants prayed for damages in the amount of Ten Thousand ($10,000.00) Dollars each, allegedly due as a result of an automobile-motorcycle collision, which occurred on Highway 61 near Natchez, Mississippi. Following a hearing, the court entered two decrees, one awarding Green Ten Thousand ($10,000.00) Dollars and the other awarding Rollins Three Thousand One Hundred Eighty-four ($3,184.00) Dollars. Mrs. McLean appeals from these judgments of the chancery court.

On November 12, 1974, at or about 7:30 P.M., Green and Rollins were riding Green’s motorcycle in a westerly direction on Highway 61 just outside of Natchez. The highway was four-lane and ran in an East-West direction. Rollins was driving the motorcycle in the right lane of traffic and Green was seated directly behind him on the passenger’s seat. They were traveling at approximately forty miles per hour. The defendant, Mrs. McLean, was .driving her automobile in a westerly direction, too, but was in the left lane. She was accompanied in her car by her husband, mother and two children.

Green and Rollins testified that the defendant crossed the center line and collided with their • motorcycle in the right lane. Mrs. McLean, on the other hand, stated that she never crossed the center line, but rather had turned on her left blinker with the intention of turning around at an intersection which was located about seventy yards from the point of impact. She contends that she neither saw nor heard the motorcycle until the two vehicles collided. The point of impact was the right rear fender of the defendant’s car.

Following the accident, Green and Rollins were taken to Jefferson Davis Hospital in Natchez. Green received lacerations and burns to the face and a fractured knee which later required surgery. Rollins, who was knocked unconscious in the accident, received a laceration to his shoulder, which left a scar. Also, his ear was badly torn and required stitches.

Originally, each complainant filed a separate bill of complaint in the chancery court, but the cases were later consolidated. The defendant’s motion to dismiss or in the alternative to transfer to circuit court was overruled and the case was tried in the Chancery Court of Adams County. The defendant has appealed the order of the lower court, which awarded both complainants damages, and has made three assignments of error:

1. The chancellor erred in assuming jurisdiction of and in failing to transfer the cause to the Circuit Court of Adams County;
2. The chancellor’s findings of fact were against the overwhelming weight of the evidence;
3. The amount of the respective judgments were so excessive as to evince bias, passion and prejudice on the part of the chancellor.

The chancellor assumed jurisdiction of this cause pursuant to Mississippi Constitution, Section 159(d) (1890), which provides:

The chancery court shall have full jurisdiction in the following matters and cases, viz: . . . (d) Minor’s business . . .

While it is true that both complainants were minors, this case neither involved nor required any equitable relief. An analysis of the case law concerning Section 159(d), clearly shows that the jurisdiction of the chancery court over minors is limited to matters involving equitable relief. The action at bar arises from a tort claim, and we have made it clear previously that courts of equity should not assume jurisdiction over claims for personal injury. Evans v. Progressive Casualty Insurance Company, 300 So.2d 149 (Miss. 1974); 30 C.J.S. Equity § 28 (1965). One reason for such a rule is that historically tort claims have been tried by jury. In chancery court, with some few statutory exceptions, the right to a jury is purely within the discretion of the chancellor, and if one is empaneled, its findings are totally advisory. Our constitution, Mississippi Constitution, § 31 (1890), provides that the right to trial by jury shall remain inviolate, but in this case, the chancellor’s assumption of jurisdiction of this common law action has deprived the defendant of this right. Although we hold that the chancellor was in error, Mississippi Constitution, § 147 (1890) prevents reversal solely on the ground of want of jurisdiction. That section provides:

No judgment or decree in any chancery or circuit court rendered in a civil cause shall be reversed or annulled on the ground of want of jurisdiction to render said judgment or decree, from any error or mistake as to whether the cause in which it was rendered was of equity or common-law jurisdiction, but if the Supreme Court shall find error in the proceedings other than as to jurisdiction, and it shall be necessary to remand the case, the Supreme Court may remand it to that court which, in its opinion, can best determine the controversy.

See also, Mathews v. Thompson, 231 Miss. 258, 95 So.2d 438 (1957); Boyett v. Boyett, 152 Miss. 201, 119 So. 299 (1928); Talbot & Higgins Lbr. Co. v. McLeod Lbr. Co., 147 Miss. 186, 113 So. 433 (1927); Hancock v. Dodge, 85 Miss. 228, 37 So. 711 (1905) and Cazeneuve, et al. v. Curell, 70 Miss. 521, 13 So. 32 (1893).

In Talbot & Higgins Lbr. Co. v. McLeod Lbr. Co., supra, we held that where the chancellor erroneously assumed jurisdiction of a common law action, the right to trial by jury had been taken away. However, we also held that § 147 was just as much a part of our Constitution as § 31, and, therefore, they must be construed together. In doing this, the net result is that trial by jury shall remain inviolate except in cases where the chancellor’s erroneous assumption of jurisdiction is the only error in the proceeding.

Despite the mandate of § 147, we look with disfavor upon and consider it an abuse of discretion for a chancellor to assume jurisdiction of a common law action which properly should be tried in a court of law where the right to trial by jury remains inviolate. But absent other error, we cannot reverse.

The next assignment concerns the chancellor’s finding on liability. The defendant contends the finding that she crossed the center line and struck the motorcycle is against the overwhelming weight of the evidence and manifestly wrong. With this, we cannot agree. The evidence presented at the trial was, at best, conflicting. The complainants both testified that Mrs. McLean crossed over into their lane and they could not swerve to the right quickly enough to escape the collision. The defendant and her husband both stated that her car never crossed the center line and that neither of them even saw the motorcycle until after impact. The investigating officer, Bates, testified that some chrome and other debris was found at or near the center line and that there were skid marks in the left lane. He further stated that Rollins told him after the accident, “I saw a foxy woman and I looked up and there was a yellow wall.” This evidence is certainly not conclusive on the issue of fault, but rather is evidence properly before the chancellor, as the trier of fact, to give it as much weight as he deemed worthy. It is well settled that where the evidence is conflicting and gives rise to more than one interpretation, this Court will not reverse the chancellor’s findings unless manifestly wrong. See Hall v. State, 247 Miss. 896,157 So.2d 781 (1963); U. S. Fidelity & Guaranty Co. v. State, 211 Miss. 864, 53 So.2d 11 (1951); Ryals v. Douglas, 205 Miss. 695, 39 So.2d 311 (1949); Henry v. Gulf, Mobile & O. R. Co., 202 Miss. 669, 32 So.2d 199 (1947); and Pierce v. Ford, 199 Miss. 168, 24 So.2d 342 (1946). Based upon the evidence presented in the record before us, we think there was sufficient evidence to sustain the chancellor's findings and therefore we find no error.

Defendant’s final contention is that the respective judgments are so excessive as to evince bias, passion and prejudice on the part of the chancellor. Kenneth Green spent approximately two weeks in the hospital and visited his physician for several other checkups. His hospital bill totaled approximately $1,713.50 and his physician testified that Green suffered a 25% permanent partial disability to his right knee. In addition, he received lacerations and burns to his face. For these injuries, he received a Ten Thousand ($10,000) Dollar judgment.

Lawrence Rollins was knocked unconscious when the car and motorcycle collided and suffered a badly torn ear, which required stitches. He also received lacerations to his face and shoulder, which left a scar. Testimony further showed that he has been and still is incurring headaches and that he suffered pain in his ankle for several days following the accident. Based upon this evidence, Rollins was awarded a judgment for Three Thousand One Hundred Eighty-four ($3,184.00) Dollars.

It is always difficult to determine whether the sum awarded is either inadequate or excessive. We have stated that there is no fixed rule which one may use as a guideline and that it is largely within the discretion of the trier of fact, subject, of course, to our review. Kinnard v. Martin, 223 So.2d 300 (Miss. 1969).

It is our opinion that there was sufficient evidence to sustain the amount of the respective judgments and based upon the testimony presented, we cannot say that they were the product of bias, prejudice or passion.

Finding no error, other than the erroneous assumption of jurisdiction by the chancellor, the decrees of the lower court must be and are hereby affirmed.

AFFIRMED.

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

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


author: WALKER, Justice,

text:
    CELOTEX CORPORATION v. CAMPBELL ROOFING AND METAL WORKS, INC.
    No. 50005.
    Supreme Court of Mississippi.
    Dec. 14, 1977.
    Fox & Gowan, John H. Fox, III, Marc A. Biggers, Jackson, for appellant.
    Johnston & Adams, Lem Adams, III, Brandon, for appellee.
   WALKER, Justice,

for the Court:

This case grew out of a construction project undertaken by the Jackson Municipal Airport Authority. Becknell Construction, Inc. was the general contractor on the project, Campbell was the roofing subcontractor and Celotex supplied the roofing materials. Becknell warranted and guaranteed that all work would be of good quality, free from faults and defects and in compliance with the plans and specifications. The warranty included defects resulting from the use of inferior materials and workmanship. Becknell entered into a subcontract with Campbell for constructing a roof and Campbell in turn warranted its. work against all defects of materials and workmanship.

Soon after construction of the roof was completed, the roof blistered and leaked. Two unsuccessful repair attempts were made, the first by Campbell alone, and the second by Campbell at the direction and expense of Celotex. In the original installation of the roof and in both repair attempts, Celotex materials were used. When the roof continued to leak after these two repair attempts, the airport authority gave notice to Becknell that it would have the roof replaced by another contractor if Becknell did not replace it. Becknell in turn gave notice to Campbell and Celotex, and when they failed to act, the airport authority had the roof replaced by Southern Roofing Company. Thereafter the airport authority filed suit against Becknell which resulted in a judgment against Becknell in the amount of $32,546.05.

Becknell thereupon filed suit against Campbell and Celotex for indemnity based upon the express warranty made by Campbell and the implied warranty of fitness made by Celotex. After a trial in the Circuit Court of Rankin County, Mississippi, a joint and several judgment was rendered against Campbell and Celotex for $32,-766.10. Celotex appealed the judgment contending that the proof was not sufficient to sustain the verdict of the jury because it was not shown that the materials furnished by Celotex were defective. However, after careful consideration of the record, this Court found that the jury’s verdict was based on conflicting evidence and the verdict would have to stand. Celotex Corp. v. Becknell Construction, Inc., 325 So.2d 566, 568 (Miss.1976).

Although Becknell could have recovered in part from both Campbell and Celotex, since the judgment was joint and several, it chose recovery from Celotex alone. Consequently, under the compulsion of an execution of judgment issued by the clerk of the Circuit Court of Rankin County, Celotex was forced to pay the entire amount of the judgment which, with interest and costs, amounted to $37,517.20.

Thereafter Celotex (whose materials were found to be faulty) initiated the instant action in the Chancery Court of Rankin County seeking contribution from Campbell (whose workmanship was found to be faulty). Celotex acknowledges that it is precluded from a relitigation as to its liability for the judgment rendered against it and Campbell jointly and severally, but argues that each of the joint and several defendants should pay their proportionate share of the judgment and that the share of each defendant should be calculated or based upon the degree of fault of each defendant. In this regard, Celotex claims that the fault of its roofing materials, if any, was minute as compared to the lack of skill and workmanship and the failure of performance of the roofing contract by Campbell. Specifically, Celotex alleges that Campbell’s lack of skill and workmanship and the failure of Campbell’s performance of its contract was the direct and proximate cause of and contributed a minimum of ninety percent to the defective aspects of the roofing failure which was the basis of the $32,546.05 judgment against Celotex and Campbell.

Campbell demurred to Celotex’s bill of complaint alleging that no equity appeared upon the face of the bill. The chancellor agreed and entered an order sustaining the demurrer.

This case presents three questions to be answered by this Court:

(1) Is contribution allowed between joint judgment debtors, one of whom was found liable to the judgment creditor, Becknell, on account of a breach of express warranty, and the other who was found liable to Beck-nell on account of breach of an implied warranty?

(2) Is contribution enforceable in a court of equity?

(3) Should contribution, if allowed, be pro-rata based upon the number of defendants or should it be based on the percentage of liability attributable to the seriousness of the conduct of each of them?

I.

IS CONTRIBUTION ALLOWED BETWEEN JOINT JUDGMENT DEBTORS, ONE OF WHOM WAS FOUND LIABLE TO THE JUDGMENT CREDITOR, BECKNELL, ON ACCOUNT OF A BREACH OF EXPRESS WARRANTY, AND THE OTHER WHO WAS FOUND LIABLE TO BECK-NELL ON ACCOUNT OF BREACH OF AN IMPLIED WARRANTY?

The doctrine of contribution requires that persons having a common liability, such as the joint and several judgment against Campbell and Celotex, bear their individual share of the.burden imposed and not have any one of them carry the full load. The general rule of common law is that one who is compelled to satisfy, or pay more than his just share of such common burden or obligation, is entitled to contribution from the others to obtain from them payment of their respective shares..

Contribution was generally allowed at common law except that no contribution could be had between tort-feasors and wrongdoers. This exception to the general rule allowing contribution was first enunciated in 1799 in the case of Merryweather v. Nixan, 8 Dura & E. 186, 101 Eng.Rep. 1337 (K.B.1799). However, in England the exception to the rule was abolished in 1935 by the Law Reform (married women and tort-feasors) Act which provides that a tort-fea-sor may recover contribution from any other tort-feasor who is, or would, if sued, have been liable in respect of the same damage, whether as a joint tort-feasor or otherwise.

Prior to the passage of Mississippi Code Annotated section 85-5-5 (1972), Mississippi followed the rule denying contribution between joint tort-feasors. In the case of Klaas v. Continental Southern Lines, 225 Miss. 94, 111-12, 82 So.2d 705, 707 (1955), it was said:

Before Chap. 259 was passed, there was in Mississippi no right in joint tort feasors to obtain contribution between themselves. Thomas v. Rounds, 161 Miss. 713, 137 So. 894 (1931); Mississippi Central R.R. Company v. Roberts, 173 Miss. 487, 160 So. 604 (1935); Teche Lines v. Pope, 175 Miss. 393, 166 So. 539 (1936); Meridian City Lines v. Baker, 206 Miss. 58, 39 So.2d 541 (1949).
. The effect of the statute was to create rights which did not exist before. And'it destroyed a valid defense to an action available before the enactment of the statute. Richards v. City Lumber Co., 101 Miss. 678, 57 So. 977 (1912). It took away a substantive right, a valid defense, and created a right in a joint tort feasor who has paid the entire judgment.

The only barrier to contribution which existed in Mississippi has now been removed by Mississippi Code Annotated section 85-5-5 (1972), except, perhaps, for those injuries or damages caused by willful or criminal acts which question is not now before us and the resolution of which will be left to a proper case.

The case of Bush v. City of Laurel, 215 So.2d 256 (Miss.1968) does not in any way modify or otherwise qualify the general common law and statutory law with respect to contribution as the appellee, Campbell, seems to contend, and its argument in this regard is without merit.

The fact that Campbell’s liability to Becknell was based on an express contract of warranty and Celotex’s liability was based on an implied warranty, which by some authorities is a hybrid between tort and contract, see Coons v. Washington Mirror Works, Inc., 344 F.Supp. 653 (S.D.N.Y. 1972) and authorities cited therein, is of no consequence., Contribution is allowable by the common law if the action is considered contractual and by statute if considered tort.

We are, therefore, of the opinion and hold that there is no bar to contribution between joint and several judgment debtors, one of whom was found to be liable to the judgment creditor on account of a breach of express warranty, and, in the same case, the other was found liable on account of breach of an implied warranty.

II.

IS CONTRIBUTION ENFORCEABLE IN A COURT OF EQUITY?

In earlier times, the doctrine of contribution was enforced only in courts of equity. Later, courts of law assumed jurisdiction, and it is now settled that an action at law will lie on the theory of an implied contract of reimbursement. However, courts of equity have not been ousted of their jurisdiction in matters of this kind by the assumption thereof by the law courts. The jurisdiction is concurrent. 18 Am. Jur.2d Contribution § 66 (1965). Therefore, the cause of action was properly filed in the chancery court.

III.

SHOULD CONTRIBUTION BE PRO-RATA BASED UPON THE NUMBER OF DEFENDANTS OR SHOULD IT BE BASED ON THE PERCENTAGE OF LIABILITY ATTRIBUTABLE TO THE SERIOUSNESS OF THE CONDUCT OF EACH OF THEM?

The bill of complaint herein sought contribution from the appellee for a minimum of ninety percent of the judgment paid by appellant. Celotex, the appellant, contends that the better and more equitable rule is one apportioning a judgment based on the degree of fault of each defendant rather than upon a pro-rata division of the debt, and that a hearing by the chancery court should be had to establish the degree of legal liability each party should bear based on the fault of each. Bielski v. Schulze, 16 Wis.2d 1, 114 N.W.2d 105 (1962).

Celotex recognizes that apportioning a judgment as to fault creates a problem in that a complete retrial must be had. However, they argue that it is no more a problem than confronts jurors every day across the state when they are asked to return verdicts based on comparative negligence.

This argument is not without merit, but we are of .the opinion that, for the sake of consistency, we should follow the policy established by the Legislature in Mississippi Code Annotated section 85-5-5 (1972), which provides for contribution on a pro-rata basis. This will avoid the necessity of a retrial of the facts on which the original judgment was based.

Accordingly, the order of the Chancery Court of Rankin County is reversed and the cause remanded for further proceedings not inconsistent with this opinion.

REVERSED AND REMANDED FOR FURTHER PROCEEDINGS NOT INCONSISTENT WITH THIS OPINION.

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

       Enacted by Miss.Gen.Laws Ch. 259 § 335.5 (1952).

      . In any action for damages where judgment is rendered against two (2) or more defendants, jointly and severally, as joint tort fea-sors, the defendants against whom such a judgment is rendered shall share equally the obligation imposed by such judgment, and if one (1) of such defendants pays an amount greater than the total sum of the judgment divided by the number of defendants against whom the judgment was rendered, then the other defendants shall be jointly and severally liable to him for the amount so paid in excess of his proportionate part; provided that no defendant shall be liable to any other defendant for more than his proportionate share of the original judgment.
      Provided further, that in determining, for the purpose of the above contribution, the number of defendants against whom the judgment has been rendered, an employer and his employee, or a principal and his agent, shall be considered as one (1) defendant when the liability of such employer or principal has been caused by the wrongful or negligent act or commission of his employee or agent.
      Provided further, that the liability of such defendants against whom such a judgment has been rendered shall be joint and several as to the plaintiff in whose favor such judgment has been rendered.


author: SUGG, Justice,

text:
    Harold G. BOLER v. Joe MOSBY, Jr., et al.
    No. 50155.
    Supreme Court of Mississippi.
    Dec. 14, 1977.

      Laurel G. Weir, Philadelphia, for appellant.
    David A. Stephenson, Meridian, for appel-lees.
    Before SUGG, BROOM and WALKER, JJ.
   SUGG, Justice,

for the Court:

Plaintiff filed a declaration against the defendants Joe Mosby, Jr., Joe Mosby, Sr. and Mosby Packing Co., Inc., on October 8, 1976. The declaration was in two counts and in the first count plaintiff charged that he lawfully entered the place of business operated by defendants on September 24, 1976 and while there was “accused of having stolen meat and other things." 'He further alleged that the words were actionable and were calculated to lead to a breach of the peace and the words were by their import considered insulting.

In his second count, plaintiff charged that the defendants, on the occasion set forth in count one, in the presence of many other persons and the general public, falsely accused plaintiff of having stolen meat and having been caught stealing.

Plaintiff further alleged that as a result of the accusations against him he had lost wages and incurred medical expenses and would continue to incur medical and drug expenses in the future. Plaintiff demanded judgment against the defendants for actual and punitive damages in the amount of $1,000,000 under count one and actual and punitive damages in the amount of $1,000,-000 under count two.

Defendants filed a motion for bill of particulars on October 21st but before the court ruled on the motion for bill of particulars, plaintiff filed a bill of particulars on October 28th. In the bill of particulars he stated that he was accused of stealing three twelve-ounce packages of bacon and that many employees, members of the public and the secretaries of the defendants heard the statement. He further stated that Joe Mosby, Sr. repeated the accusations to A. G. James, one of the plaintiff's supervisors employed by the Commissioner of Agriculture of the State of Mississippi. He further alleged that, because of the accusations spoken by the defendants, he lost his job with the Mississippi Department of Agriculture thereby losing his salary of $744 per month, and that he had incurred medical and drug expenses in the amount of $75 to that date.

On November 23rd defendants filed a motion to strike the bill of particulars because it was not in response to an order of the court, it was so indefinite and uncertain that the precise nature of the complaint was not apparent, and it was framed in such a manner as to prejudice a fair trial of the case.

On November 23rd the circuit judge entered an order requiring plaintiff to file a bill of particulars but did not strike the bill of particulars filed on October 28th.

On January 7, 1977 defendants filed the following demurrer:

I
The plaintiff has failed to state in his Declaration what actionable or defamatory words were spoken to the plaintiff by the defendants. The Declaration therefore does not state a cause of action and is totally defective.
II
The plaintiff has failed to respond to the defendants’ motion for a Bill of Particulars pursuant to this Court’s order, dated November 23,1976, requiring plaintiff to respond within thirty days from the date of said order. Said motion and order required, among other things, that the plaintiff state the alleged actionable words that were spoken to the plaintiff by the defendants. Failure of the plaintiff to respond to the court’s order, precludes him, pursuant to § 11-7-97, from introducing the alleged slanderous remarks at any future trial of this cause. Any action for defamation must be based on the defamatory words that were allegedly published by the defendants.
III
Plaintiffs Declaration fails to specify his actual damages as required in a slander action. The plaintiff therefore has no cause of action.
IV
Plaintiff has failed to allege injury to his reputation which is the gravaman for recovery of damages in a slander action.
V
For other reasons to be shown upon a hearing of the Demurrer.

On January 20th plaintiff filed another bill of particulars and alleged that the “other things” he was accused of stealing was a “ham of meat.” He reaffirmed that he was accused of stealing three twelve-ounce packages of bacon and that all three defendants made the accusation against him. He further alleged that Joe Mosby, Jr. told Richard Crabtree at Owen Brothers Packing Company that he, Joe Mosby, Jr., had caught plaintiff stealing meat. He alleged that an investigation of the matter was continuing and that he did not know the names and addresses of each person who was present at the time the accusations were made. He also alleged that his medical expenses amounted to $125, consisting of $70 paid to a doctor and $55 for medicine, and that medical expenses would be incurred in the future. He further alleged that while he was a meat inspector employed by the Mississippi Department of Agriculture, he refused the defendants the right to market a calf slaughtered by them and they became angry with plaintiff and decided they would falsely accuse him of stealing and have him fired from his job. He further alleged that Joe Mosby, Jr. told Jimmy Sullivan on the date of the incident that plaintiff had been caught stealing meat. He further alleged that Dr. Walter Anderson, Robert Williams and A. G. James went to Mosby Packing Company on the Monday following the accusations and the defendants told the three named persons that plaintiff was guilty of stealing meat, but plaintiff alleged he was not present and did not know the names of all persons present when the statement was made.

On January 25th the circuit judge entered an order striking plaintiffs bill of particulars which was filed on October 28th because it was unresponsive, and struck the bill of particulars filed on January 20, 1977 because it was not filed within thirty days after November 23,1976, and allowed plaintiff ten days in which to file an amended declaration.

On January 28th the circuit judge sustained the demurrer to plaintiff’s declaration and dismissed the case with prejudice. Plaintiff did not amend but elected to appeal.

Plaintiff contends that the circuit judge erred by sustaining the demurrer and dismissing his case with prejudice. Before determining whether the demurrer was properly sustained, it is necessary that we consider the action of the trial judge in dismissing the two bills of particulars filed by plaintiff. Section 11-7-97 Mississippi Code Annotated (1972) provides:

If the pleading in any case is in vague and general terms, or does not specify the circumstances or the occasions on which the pleader relies, and the opposite party satisfies the court, by affidavits, that for the purpose of prosecution or defense at the trial it is necessary that his adversary be more specific, the court may order a bill of particulars to be rendered, specifying time, place, and circumstances relied upon, and persons present, or, in case of contractual demands, more particularly itemizing the claim; and, thereafter on the trial, evidence shall not be admissible of matter not so specified.

It will be noted from a reading of the statute that if a bill of particulars is not responsive no provision is made for dismissing the bill of particulars, but evidence of matters not particularized shall not be admitted at the trial of the case.

The trial judge dismissed the first bill of particulars because it was not responsive to any pleading. This was error because after a motion for a bill of particulars is filed, a party may respond with a bill of particulars without waiting for the court to rule whether a bill of particulars will be required. By filing his first bill of particulars, plaintiff confessed the motion and complied with it.

The trial judge assigned as his reason for dismissing the second bill of particulars the fact that it was not filed within thirty days as directed by the court. The second bill of particulars should not have been dismissed for this reason because the statute does not contemplate dismissing a bill of particulars but only prohibits introduction of evidence pertaining to matters not particularized. We recognize that a trial judge must control his docket so that each case will follow an orderly procedure; however, in this case even though the second bill of particulars was filed a few days late, it was filed before defendants filed an answer. If the defendants were prejudiced by the bill of particulars their remedy was to request time to answer so they could prepare to meet the new matters alleged in the second bill of particulars. Furthermore, defendants attempted to raise the failure of plaintiff to timely file his second bill of particulars in the second ground of their general demurrer. Procedural matters may not be raised by general demurrer. In effect, the court of its own motion dismissed the second bill of particulars and this was error. We therefore conclude that, in considering the general demurrer, the declaration and both bills of particulars should have been examined to determine if plaintiff had stated a cause of action.

This brings us to the question of whether the court erred when it sustained the general demurrer. Certain well established principles govern consideration of demurrers. A general demurrer must be sustained or overruled in its entirety. Canton Cotton Warehouse Co. v. Potts, 68 Miss. 637, 10 So. 59 (1891). A general demurrer to a declaration containing more than one count cannot be sustained if any count is sufficient. Sunflower Compress Co. v. Clark, 165 Miss. 219, 144 So. 477 (1932), Suggestion of Error Overruled 165 Miss. 219, 230, 145 So. 617 (1933); Jacobs v. Postal Telegraph-Cable Co., 76 Miss. 278, 24 So. 535 (1898); Cummings v. Daughety, 73 Miss. 405, 18 So. 657 (1895); Lynn v. Illinois Central R.R. Co., 63 Miss. 157 (1885); Hines v. Potts, 56 Miss. 346 (1879). All facts alleged in the declaration, together with those facts which are reasonably necessarily implied from the facts as stated, must be considered as true and if a declaration contains sufficient matter of substance for the court to proceed upon the- merits of the cause, a general demurrer should be overruled. Poole v. Brunt, 338 So.2d 991 (Miss.1976); Gully v. Board of Supervisors of Copiah County, 167 Miss. 562, 147 So. 300 (1933).

With reference to the common law action for slander we have held that it is sufficient to charge the words which constitute the slander by using the exact words or by using synonymous words, and that accusing a person of being a thief is actionable per se. Valley Dry Goods Co. v. Buford, 114 Miss. 414, 75 So. 252 (1917). We have also held that a plaintiff suing for slander must allege and prove special damages unless the slanderous words complained of are actionable per se. W. T. Farley, Inc. v. Bufkin, 159 Miss. 350, 132 So. 86 (1931).

When the declaration and two bills of particulars in this case are measured by the above rules it is apparent that plaintiff stated a common law action for slander. Plaintiff alleged that defendants accused him of stealing, alleged special damages in his declaration and two bills of particulars. The accusations against plaintiff are actionable per se. Accordingly, we hold that the general demurrer should have been overruled.

We do not decide whether plaintiff is entitled to proceed on both counts of his declaration or whether he must elect to proceed under either, count one, which is based on the actionable words statute [section 95-1-1 Mississippi Code Annotated (1972)] or count two, which is based on the common law action for slander. This question was not briefed; therefore, we express no opinion with reference thereto.

REVERSED AND REMANDED.

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